Weil v. Citizens Telecom Services Company, Llc et al

MOTION for Summary Judgment

W.D. Wash.August 2, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 The Honorable James L. Robart UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE DAVID R. WEIL, Plaintiff, v. CITIZENS TELECOM SERVICES COMPANY, LLC; and FRONTIER COMMUNICATIONS CORPORATION, Defendants. Case No. 2:15-cv-00835-JLR DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: August 26, 2016 Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 1 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 1 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 I. INTRODUCTION This matter is currently set for trial on October 31, 2016. A trial, however, is unnecessary because there is no triable issue of fact. Specifically, Plaintiff’s claims under Title VII, 42 U.S.C. § 1981, and the Washington Law Against Discrimination (“WLAD”) fail because Defendants had legitimate reasons for deciding not to promote Plaintiff and ultimately terminating his employment, and there is no admissible evidence of any discriminatory motive. Accordingly, the Court should grant summary judgment in favor of Citizens Telecom Services Company, LLC and Frontier Communications Corporation (“Frontier”1) as to all claims. II. STATEMENT OF UNDISPUTED FACTS A. Plaintiff’s Employment History with Frontier. ¶ 1. In 1999, Plaintiff, who is a male of East Indian descent, was hired as a customer contact associate at GTE’s Everett Call Center, which later became Verizon. Dkt. No. 21, ¶ 5. Declaration of Breanne Martell (“Martell Decl.”), Ex. 1 (Weil Dep. at 13:22-14:10).2 In 2007, Verizon promoted Plaintiff to the position of team leader, also known as Sales Coach. Id. (Weil Dep. at 14:2-10); Ex. 12.3 In January 2010, Verizon promoted Plaintiff to the position of Workforce Supervisor. Ex. 1 (Weil Dep. at 15:13-20); Ex. 12. Later in 2010, Frontier acquired the Everett Call Center from Verizon. Ex. 1 (Weil Dep. at 16:15-21). In February 2011, Frontier promoted Plaintiff to the position of Customer Service Manager. Id. (Weil Dep. at 16:18-20); Ex. 12. As Customer Service Manager, Plaintiff had responsibility for almost all functions of the call center, including attendance, sales, performance management, performance metrics, morale, contests, and union activities. Ex. 1 (Weil Dep. at 16:22-17:3, 30:12-17). Plaintiff’s supervisor was the Everett Call Center Director, Carlos Zuniga, who is a Hispanic male. Id. (Weil Dep. at 1 Citizens Telecom Services Company, LLC is an affiliate of Frontier Communications Corporation. Dkt. No. 22, ¶ 6. Citizens Telecom Services Company, LLC was Plaintiff’s employer. Id., ¶ 8; Ex. 2 (Mailloux 30b6 Dep. at 90:16-18). For purposes of this Motion, however, Defendants do not dispute that both entities employed Plaintiff and will refer to them collectively as “Frontier” for ease of reference, as it is not material to the issues being decided. 2 The material facts cited from Plaintiff’s deposition testimony are assumed to be true for purposes of this Motion. 3 All exhibits are attached to the Declaration of Breanne Martell, unless otherwise noted. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 2 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 2 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 17:7-11, 27:18-19). The Everett Call Center had both a Manager and Director, unlike other Frontier call centers that were led by a Manager only or a Director only. Id. (Weil Dep. at 17:12- 17). Plaintiff admitted that Frontier’s policies prohibit discrimination and encourage diversity in the workforce. Id. (Weil Dep. at 33:20-34:3, 35:12-36:12). B. The Everett Call Center Director, a Hispanic Male, Is Promoted and Frontier Searches for a Replacement Director. ¶ 2. In September 2012, Frontier promoted Mr. Zuniga to the position of Assistant Vice President or AVP of Technology. Ex. 1 (Weil Dep. at 27:8-17); Ex. 2 (Mailloux 30b6 Dep. at 10:8-15). At that time, Plaintiff started reporting directly to Lynn Holmgren, who was the Call Center Vice President. Ex. 1 (Weil Dep. at 30:22-31:4). ¶ 3. On or about August 29, 2012, Frontier posted the Everett Call Center Director position to solicit applications. Ex. 2 (Mailloux 30b6 Dep. at 10:19-11:16); Ex. 11. Plaintiff applied for the Director position, and he was interviewed along with several other candidates in October 2012. Ex. 1 (Weil Dep. at 95:13-15); Ex. 2 (Mailloux 30b6 Dep. at 16:1-8). According to Ms. Holmgren’s email assessment of the interview, Plaintiff received a score of 37 out of 50, and she ranked Plaintiff as second out of three candidates she interviewed. Declaration of Kevin Mailloux (“Mailloux Decl.”), Ex. A. Kevin Mailloux, Frontier’s Human Resources Director for the West Region,4 testified that Plaintiff was not qualified for the Director position because he did not display the leadership skills required for the position (and listed in the job posting), including the ability to inspire and motivate the employees, effective communication and presentation skills, and the ability to complete tasks in a timely fashion. Martell Decl., Ex. 2 (Mailloux 30b6 Dep. at 17:19-19:11); Ex. 11 at pp. 2-3.5 Notably, Plaintiff also did not have ten years of management experience, another requirement in the job posting-even adding all of 4 Mr. Mailloux was Frontier’s Rule 30(b)(6) designee on most of the topics requested by Plaintiff, with the exception of the reasons for not promoting Plaintiff in 2013 (Ms. Potts), the reasons for terminating Plaintiff (Ms. Brown), Plaintiff’s performance from April to August 2013 (Ms. Brown), and the performance of the Everett Call Center from September 2012 to April 2013 (Ms. Brown). 5 Plaintiff viewed Mr. Mailloux as a mentor, consulted with Mr. Mailloux “a lot” when he had questions and concerns, and testified that Mr. Mailloux helped him in his career. Ex. 1 (Weil Dep. at 27:23-28:22, 29:5-15). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 3 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 3 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Plaintiff’s supervisory and management experience together, he only had five years of experience. Ex. 11-12. During this time period, Plaintiff served as Acting Director, which was a normal practice when Frontier had an open leadership position to ensure that critical operations continued to run. Ex. 1 (Weil Dep. at 95:16-18); Ex. 2 (Mailloux 30b6 Dep. at 16:20-17:6). ¶ 4. Ms. Holmgren completed Plaintiff’s performance review for 2012, after supervising him directly for four months. Ex. 1 (Weil Dep. at 82:14-23); Ex. 14 at pp. 4-11. Ms. Holmgren’s overall rating of Plaintiff’s performance was a 3.4, while his overall self-rating was a 4.1, both of which had decreased from the prior year. Ex. 1 (Weil Dep. at 83:2-9). In the area of “Communicates Proactively,” Ms. Holmgren rated Plaintiff a “2” on a five-point scale. Id. (Weil Dep. at 86:1-5); Ex. 14 at p. 9. Plaintiff believed that “Communicates Proactively” and “Collaborates Cross Functionally” were his weakest areas. Id. (Weil Dep. at 86:1-16). In the area of “Takes Ownership and Accountability,” Ms. Holmgren’s rating of Plaintiff was significantly lower than Plaintiff’s self-rating. Id. (Weil Dep. at 86:17-87:1).6 In her comments, Ms. Holmgren identified several opportunities for Plaintiff’s development so he could continue to be viewed as a candidate for promotion: (1) building relationships with field operations, (2) developing persuasive presentation and public speaking skills, (3) managing relationships with senior leaders, (4) developing charisma that will inspire the confidence of superiors and building trust in those relationships, and (5) continuing to drive the sales mentality and more excitement within the Everett Call Center. Id. (Weil Dep. at 87:2-13, 88:14-25, 90:9-91:11); Ex. 14 at p. 10. C. Management of the Everett Call Center Changes in January 2013. ¶ 5. On or about January 14, 2013, Becky Potts assumed the role of Senior Vice President for Residential Contact Centers with responsibility for the Everett Call Center, and she became Plaintiff’s supervisor. Ex. 4 (Potts 30b6 Dep. at 6:21-7:9); Ex. 2 (Mailloux 30b6 Dep. at 44:9-12, 44:22-45:1).7 At the same time, Frontier moved Ms. Holmgren involuntarily to a 6 All three of these areas were part of Frontier’s “core competencies” for its leaders, and Frontier expected leaders to display those qualities. Ex. 1 (Weil Dep. at 84:12-85:25); Ex. 15 at pp. 7, 9, 13. 7 Ms. Potts split responsibility for the residential call centers with Donna Loffert, the Vice President for Residential Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 4 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 4 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 different position where she did not have any responsibility for management of the call centers. Ex. 1 (Weil Dep. at 195:2-10, 201:22-25, 203:2-7).8 As of January 2013, no decision had been made about the Everett Call Center Director position, and Ms. Potts assumed responsibility for making that decision. Ex. 1 (Weil Dep. at 95:23-24, 96:11-17); Ex. 2 (Mailloux 30b6 Dep. at 20:5-15, 22:16-25). Starting in January 2013, Ms. Potts was evaluating Plaintiff in the Acting position, and she hoped he would demonstrate his leadership so that she could promote him into the Director position. Ex. 4 (Potts 30b6 Dep. at 80:22-81:25). ¶ 6. In February 2013, Frontier leadership was pushing for improvements in the Pacific Northwest customer experience. Ex. 1 (Weil Dep. at 45:11-13, 45:24-46:2). This included several components, such as sales, customer retention, cleaning up order queues,9 and improving the call center’s key metrics. Id. (Weil Dep. at 45:1-23, 46:15-18, 47:10-14). As part of this effort, Ms. Potts directed Plaintiff to work with Rich Klena on an action plan. Id. (Weil Dep. at 47:15-23).10 Plaintiff agreed that he “absolutely” needed to work with the operations leadership, also known as the leadership in the field, as part of his job-specifically, Denise Baumbach (Regional President), Rich Klena (Senior Vice President or SVP), and the General Managers or GMs. Id. (Weil Dep. at 44:12-19). In April 2013, Ms. Potts assigned Plaintiff some action items as part of her plan for the Everett Call Center, including responsibility for quarterly skip level meetings with consultants and monthly focus groups. Id. (Weil Dep. at 41:11-13, 41:23-25, 42:11-20, 43:12-19). Ms. Potts also specified that one goal for the Everett Call Center was 100 percent revenue attainment to its specific monthly goal. Id. (Weil Dep. at 39:6-8, 43:23-44:1). Everett had not met its monthly revenue attainment goal from September 2012 through April 2013, with the exception of one month. Id. (Weil Dep. at 66:15-21). Contact Centers, who had responsibility for several of the other call centers (not including Everett). Ex. 4 (Potts 30b6 Dep. at 8:24-9:5); Ex. 8 (Loffert Dep. at 10:3-7, 53:20-22). Ms. Loffert did not have any role in the decision not to promote Plaintiff. Ex. 8 (Loffert Dep. at 53:23-25, 55:8-10, 57:3-6). 8 Frontier terminated Ms. Holmgren’s employment on June 1, 2013. Mailloux Decl., ¶ 3. 9 Everett had the highest percentage of calls stuck in the queue as compared to the other call centers, and Plaintiff understood that Ms. Potts was concerned about it. Ex. 1 (Weil Dep. at 49:14-50:18). 10 Plaintiff does not recall what happened as a result. Ex. 1 (Weil Dep. at 47:24-48:5). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 5 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 5 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 D. Becky Potts Does Not Select Plaintiff For the Call Center Director Position Because His Leadership and Communication Skills Need Development. ¶ 7. In late March 2013, Ms. Potts decided not to promote Plaintiff to the Director position. Ex. 1 (Weil Dep. at 99:19-21); Ex. 4 (Potts 30b6 Dep. at 21:17-20); Ex. 2 (Mailloux 30b6 Dep. at 14:20-22, 20:2-15). Instead, Ms. Potts decided to promote Jennifer Brown. Ex. 2 (Mailloux 30b6 Dep. at 28:6-12). Ms. Holmgren was not involved in making that decision. Ex. 1 (Weil Dep. at 99:22-24, 195:5-10); Ex. 4 (Potts 30b6 Dep. at 21:10-16). ¶ 8. Ms. Potts provided three specific reasons for her decision not to promote Plaintiff - he needed to develop proactive communication skills, improve his cross-functional collaboration, and increase his accountability - which is documented in an email sent by Ms. Potts to her supervisor in March 2013. Ex. 14; Ex. 4 (Potts 30b6 Dep. at 31:17-32:7, 36:2-25). Ms. Potts had been concerned about Plaintiff’s need for development in these particular areas before she read Plaintiff’s performance review, but found that the performance review supported her observations. Id. (Potts 30b6 Dep. at 14:11-15, 14:21-25). These three areas are part of Frontier’s core competencies used in the development of its employees, and Frontier considers them to be key skills for leaders to possess. Id. (Potts 30b6 Dep. at 38:4-17); Ex. 2 (Mailloux 30b6 Dep. at 67:18-68:7); Ex. 1 (Weil Dep. at 84:12-85:25); Ex. 15 at pp. 7, 9, 13. Ms. Potts referred to the core competencies in making her decision. Ex. 4 (Potts 30b6 Dep. at 39:8-18). Ms. Potts did not rely on data or the call center’s performance metrics in making her decision. Id. (Potts 30b6 Dep. at 34:20-36:8). ¶ 9. Ms. Potts testified that Plaintiff had not demonstrated leadership and communication skills to her. Id. (Potts 30b6 Dep. at 67:17-68:15). For example, she testified that Plaintiff did not communicate much with her and she had concerns about his responsiveness. Id. (Potts 30b6 Dep. at 42:9-46:20). Ms. Potts also had concerns based on an executive presentation made by Plaintiff because his presentation skills were not strong and he did not display confidence. Id. (Potts 30b6 Dep. at 46:24-48:14). As additional examples, Plaintiff had Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 6 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 6 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 missed some timelines, had not timely cleaned out the phone queues, had not proactively partnered with Rich Klena on the action plan, and did not reach out often to other leaders. Id. (Potts 30b6 Dep. at 57:1-58:8, 59:1-60:21, 61:1-63:1, 73:2-77:7, 77:12-79:10). Mr. Mailloux echoed these concerns, testifying that Plaintiff was inexperienced, he did not effectively communicate with the leadership team, and he failed to complete tasks. Ex. 2 (Mailloux 30b6 Dep. at 47:9-50:4). According to Plaintiff, Ms. Potts had previously expressed concerns to him about the Everett Call Center, “depend[ing] on what the flavor of the day was.” Ex. 1 (Weil Dep. at 52:2-8); see also Ex. 4 (Potts 30b6 Dep. at 40:1-22). ¶ 10. On April 1, 2013, Ms. Potts and Mr. Mailloux met with Plaintiff to inform him of the decision. Ex. 1 (Weil Dep. at 98:12-18); Ex. 3 (Mailloux Dep. at 36:8-19). Ms. Potts discussed the three areas with Plaintiff where she believed he needed to develop his skills. Ex. 5 (Potts Dep. at 38:24-39:18, 40:7-42:21); Ex. 16; Ex. 3 (Mailloux Dep. at 36:20-23). Ms. Potts wanted to prepare Plaintiff for the next level so that he could become a stronger leader. Ex. 1 (Weil Dep. at 99:25-100:13); Ex. 4 (Potts 30b6 Dep. at 71:3-8). ¶ 11. Plaintiff agreed that these three areas were reflected in his performance review. Ex. 1 (Weil Dep. at 100:17-25, 101:18-19, 102:1-13). Plaintiff also agreed that a successful leader at Frontier needed to have a number of skills, including communication skills, following through on commitments, accountability, responsiveness to employees and senior leaders, meeting deadlines, time management, building partnerships with the field operations leaders, presentation skills,11 and being trustworthy and self-directed. Id. (Weil Dep. at 56:1-58:4). E. The New Director, Jennifer Brown, Is a Senior Manager with More Management Experience and Demonstrated Leadership Skills. ¶ 12. The new Director, Jennifer Brown, had sixteen years of experience in the Frontier call centers, including twelve years of experience in various supervisory and management roles, 11 Plaintiff testified that this was more important for a call center director than for a manager who reported to a director. Ex. 1 (Weil Dep. at 57:6-18). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 7 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 7 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 and five years of experience as a Senior Call Center Manager leading two different call centers in Pennsylvania and Burnsville, Minnesota. Ex. 6 (Brown 30b6 Dep. at 5:19-8:8); Ex. 2 (Mailloux 30b6 Dep. at 32:22-33:13); Ex. 13; Ex. 17 at pp. 3-4. In the Senior Manager role, Ms. Brown had the same responsibilities as a Director. Ex. 6 (Brown 30b6 Dep. at 6:12-21). As the leader in Burnsville, Ms. Brown improved the call center’s overall performance and employee satisfaction ratings. Id. (Brown 30b6 Dep. at 7:8-8:6). Ms. Brown also managed a vendor relationship for Frontier. Id. (Brown 30b6 Dep. at 8:10-12). Ms. Potts had been Ms. Brown’s supervisor since January. Ex. 5 (Potts Dep. at 19:10-12, 21:24-25). In Ms. Potts’ view, Ms. Brown had strong leadership skills, and she believed that Plaintiff could learn these skills from Ms. Brown. Id. (Potts Dep. at 58:11-59:3, 64:14-17). Plaintiff admitted that there were elements of Ms. Brown’s leadership style that he could learn from and were beneficial to him. Ex. 1 (Weil Dep. at 149:14-24). As Mr. Mailloux testified, Ms. Brown had demonstrated the leadership skills they were seeking for the position, such as the ability to inspire and motivate employees, manage performance, follow through on her commitments, and develop strong relationships with other business leaders. Ex. 2 (Mailloux 30b6 Dep. at 32:22-33:13, 54:15-20). F. Ms. Brown Works with Plaintiff on a Performance Development Plan to Help Him Develop His Leadership Skills Starting in April 2013. ¶ 13. In April 2013, Ms. Potts asked Plaintiff to select action items in the three areas she had identified for his performance development plan (“PDP”). Ex. 1 (Weil Dep. at 103:4- 25); Ex. 5 (Potts Dep. at 53:1-54:1).12 The purpose of the PDP was to mentor and develop Plaintiff so that he could become a Director. Ex. 6 (Brown 30b6 Dep. at 99:1-17). On or about May 3, 2013, Plaintiff selected action items, including a bi-monthly email to address the state of the center, quarterly skip level meetings, monthly focus groups and action plans to address 12 In April 2013, Ms. Potts was promoted to Chief Customer Officer, and in that position she had responsibility for all of the call centers. Ex. 4 (Potts 30b6 Dep. at 6:10-20, 7:10-15). At that time, Ms. Potts became Donna Loffert’s supervisor, who was the Vice President of Residential Contact Centers, and Ms. Loffert took responsibility for managing all of the residential call centers, including Everett. Id. (Potts 30b6 Dep. at 8:11-23, 9:6-14, 9:24-10:4). Ms. Brown kept Ms. Loffert informed about Plaintiff’s performance issues, but Ms. Loffert did not make decisions regarding Plaintiff’s PDP or subsequent PIP. Ex. 8 (Loffert Dep. at 61:13-20, 64:2-11, 70:1-5, 71:4-22, 77:1-22). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 8 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 8 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 employee concerns, and meeting with the GMs. Ex. 1 (Weil Dep. at 104:5-105:5). Ms. Brown worked with Plaintiff to develop more specific details for his PDP action items. Id. (Weil Dep. at 106:3-12); Ex. 6 (Brown 30b6 Dep. at 22:2-29:5, 51:13-22, 57:2-15, 69:3-7); Ex. 18 at pp. 2, 5. Plaintiff agreed to Ms. Brown’s revisions. Ex. 1 (Weil Dep. at 106:13-25); Ex. 6 (Brown 306b6 Dep. at 67:1-4). These action items were part of Plaintiff’s responsibilities as a Manager, and he understood that he needed to start working on them. Ex. 1 (Weil Dep. at 105:15-19, 107:1-3); Ex. 2 (Mailloux 30b6 Dep. at 65:14-22). G. Plaintiff Fails to Complete Items on His PDP in May and June. ¶ 14. Ms. Brown met with Plaintiff regularly to discuss the progress on his PDP, and he agreed to provide daily updates about his progress. Martell Decl., Ex. 1 (Weil Dep. at 112:6-9, 117:16-118:10); Ex. 6 (Brown 30b6 Dep. at 29:9-30:2). Ms. Brown made a sincere effort to assist Plaintiff with his PDP. Id. (Brown 30b6 Dep. at 36:14-16, 147:25-148:10).13 Plaintiff told Ms. Brown that she was the first supervisor who worked with him on a development plan showing that she had an interest in helping him to succeed, and that he appreciated her time and effort. Ex. 1 (Weil Dep. at 147:22-148:1, 149:25-150:6); Ex. 6 (Brown 30b6 Dep. at 34:20-24). ¶ 15. Plaintiff did not meet deadlines in the PDP. Ex. 6 (Brown 30b6 Dep. at 30:3-15, 31:8-17, 33:7-8, 33:13-15). As of June 5th, Plaintiff had not been sending the bi-monthly emails, he had not started any skip level meetings, and he had not conducted any focus groups. Id.; Ex. 1 (Weil Dep. at 111:16-112:5, 114:9-11). Plaintiff also had not partnered with the GMs. Ex. 6 (Brown 30b6 Dep. at 30:12-14, 33:9-12). Plaintiff displayed other performance deficiencies, including lack of responsiveness. Id. (Brown 30b6 Dep. at 29:15-18, 33:20-34:7, 126:21- 127:7).14 For example, when sent a high priority request that originated from the CEO of Frontier, he did not respond until 10:54 a.m. the following day. Ex. 1 (Weil Dep. at 107:13- 108:22). As another example, it took Plaintiff four days to respond to an employee’s concern 13 Plaintiff testified that he “can’t speak to” Ms. Brown’s intentions. Ex. 1 (Weil Dep. at 118:22-24). 14 Plaintiff recalled a conversation with Ms. Potts and Ms. Brown about responding to senior leaders, but he did not recall any specifics. Ex. 1 (Weil Dep. at 113:1-7). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 9 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 9 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 about her pay. Id. (Weil Dep. at 109:2-24). When a team lead expressed concerns about Plaintiff, Ms. Brown asked Plaintiff to meet with the lead to address it and he did not follow through. Ex. 6 (Brown 30b6 Dep. at 35:11-36:10). Plaintiff was late for meetings, and he did not submit termination requests in a timely manner. Ex. 1 (Weil Dep. at 110:8-16); Ex. 6 (Brown 30b6 Dep. at 36:24-37:20); Ex. 9 (Grepo Dep. at 22:14-23:1, 29:16-30:5). ¶ 16. In June, Plaintiff met with Ms. Potts and Ms. Brown about his progress. Ex. 1 (Weil Dep. at 113:8-10); Ex. 6 (Brown 30b6 Dep. at 33:15-19). Plaintiff observed that Ms. Potts was “not happy” with his performance, and he acknowledged that “the perception was that I was not meeting the action items.” Ex. 1 (Weil Dep. at 113:11-114:2); Ex. 6 (Brown 30b6 Dep. at 34:8-11, 127:8-11).15 Plaintiff repeatedly missed deadlines and did not complete action items on his plan, such as the after-hours support project, the bi-monthly emails, focus groups and action plans, meeting with the GMs, and the team lead assessment. Id. (Weil Dep. at 140:15-141:15, 142:13-143:6); Ex. 20 at p. 4.16 Plaintiff agreed that the performance documentation (Ex. 20) was Ms. Brown’s assessment of his progress on the plan, and that Ms. Brown’s assessment was that he had not completed the action items he was supposed to complete. Ex. 1 (Weil Dep. at 144:22-145:5, 151:20-22). Plaintiff also testified that Ms. Brown was “very good” with documentation. Id. (Weil Dep. at 149:20-22). H. Ms. Brown Places Plaintiff on a Performance Improvement Plan on June 28. ¶ 17. At the end of June, Ms. Brown decided to place Plaintiff on a performance improvement plan (“PIP”) because his performance was declining and he was not meeting the expectations of his position, which she did on June 28th. Ex. 6 (Brown 30b6 Dep. at 36:13-23, 78:17-24); Ex. 1 (Weil Dep. at 139:3-9); Ex. 2 (Mailloux 30b6 Dep. at 74:24-75:3); Ex. 20.17 15 Plaintiff did not recall what his progress on the PDP was at that time. Ex. 1 (Weil Dep. at 113:19-22). 16 To the extent Plaintiff testified that he did not recall the status of these action items, he cannot raise a genuine issue of material fact to defeat summary judgment. 17 Ms. Brown sent the PDP to Joni Grepo, the HR Manager, in mid-May for her records. Ex. 6 (Brown 30b6 Dep. at 72:9-23); Ex. 9 (Grepo Dep. at 38:2-8). Ms. Grepo was not involved in conversations about the PDP. Id. (Grepo Dep. at 20:16-22). Ms. Grepo made an error and placed the PDP into the wrong document template, labeled a PIP, but that erroneous PIP was never implemented. Ex. 6 (Brown 30b6 Dep. at 103:5-13, 104:6-105:12); Ex. 9 (Grepo Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 10 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 10 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 The PIP had the same three areas of development and nearly all of the same action items as the PDP. Ex. 1 (Weil Dep. at 139:10-140:14); Ex. 2 (Mailloux 30b6 Dep. at 81:9-16). As part of the progressive discipline process, the PIP made clear that Plaintiff needed to improve his performance or he could be terminated. Ex. 20 at p. 3; Ex. 2 (Mailloux 30b6 Dep. at 64:4-11, 75:15-25). Plaintiff agreed that an employee who demonstrated that they have the skills, but do not have the will to make improvements in their performance, should proceed to the next step of discipline. Ex. 1 (Weil Dep. at 125:13-18). In July 2013, Plaintiff started looking for other employment. Id. (Weil Dep. at 174:23-25). I. Plaintiff’s Performance Continues to Decline, He Fails to Complete Items on his PIP, and Ms. Brown Loses Trust in Him. ¶ 18. In his mid-year performance review, which covered the time period from January 1, 2013 through June 30, 2013, Plaintiff’s rating of himself calculated to be lower than a “3,” considering his scores of “3” and “2” in each of the sub-categories. Ex. 1 (Weil Dep. at 77:9- 15); Ex. 19 at p. 7.18 He testified that a rating of below “3” reflected performance that was not satisfactory. Ex. 1 (Weil Dep. at 77:20-78:1). ¶ 19. Again, Plaintiff failed to complete his action items in a timely manner or at all, including the after-hours project, the bi-monthly emails, action plans from the focus groups, and the team lead expectations. Ex. 1 (Weil Dep. at 155:2-156:6, 157:2-14, 163:12-23, 163:24- 164:6); Ex. 6 (Brown 30b6 Dep. at 175:2-178:20); Ex. 21 at pp. 3-5.19 Plaintiff did not show up for meetings he had scheduled with the leads, sent their weekly schedule late, and failed to get coverage for leads who were absent. Ex. 1 (Weil Dep. at 157:15-25, 159:23-160:7); Ex. 6 (Brown 30b6 Dep. at 177:20-22, 178:3-9). Ms. Brown’s assessment was that Plaintiff was not Dep. at 42:25-43:10, 45:16-20, 45:24-46:6, 46:14-18, 52:7-21, 53:15-25, 59:19-21). Ms. Brown had no intention to put Plaintiff on a PIP until the end of June. Ex. 6 (Brown 30b6 Dep. at 102:4-10); Ex. 5 (Potts Dep. at 65:6-20). 18 Plaintiff’s score for “Meet Expense Budget Targets” was “0”-the information was not available at the time he completed the self-evaluation. However, he testified that this category “wasn’t reflective” of his call center and was the same for everyone in the Company. Plaintiff rated himself a “3” or “2” in every other category. Ex. 1 (Weil Dep. at 92:1-93:1, 94:4-21). The score for the “Meet Expense Budget Targets” category was a “3” for the 2013 mid-year reviews. Mailloux Decl., ¶ 5. Thus, Plaintiff’s overall score still would have been below a “3.” Id. 19 To the extent Plaintiff testified that he did not recall the status, he cannot raise a genuine issue of material fact. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 11 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 11 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 meeting or communicating with the GMs as specified in the PIP. Ex. 1 (Weil Dep. at 161:2-6); Ex. 6 (Brown 30b6 Dep. at 176:21-177:6). Plaintiff was supposed to work on a wellness plan for the call center, but he did not make any progress on it. Ex. 1 (Weil Dep. at 114:18-115:5, 143:25-144:10); Ex. 6 (Brown 30b6 Dep. at 176:5-17); Ex. 9 (Grepo Dep. at 94:18-21). ¶ 20. While Ms. Brown was on PTO, Plaintiff failed to forward August goals to the coaches. Ex. 1 (Weil Dep. at 162:25-163:2); Ex. 6 (Brown 30b6 Dep. at 32:25-33:6, 175:18-21). Plaintiff had also agreed to assist Ms. Brown by meeting with the coaches to go over mid-year review expectations. Ex. 1 (Weil Dep. at 161:13-22). Plaintiff did not meet with at least one of the coaches, and he failed to inform Ms. Brown. Id. (Weil Dep. at 162:1-13); Ex. 6 (Brown 30b6 Dep. at 32:8-24, 175:21-25); Ex. 22 at p. 4. ¶ 21. On August 1, 2013, Ms. Brown and Plaintiff had a long meeting to discuss his progress, and Plaintiff made statements signaling to Ms. Brown that he did not have the will to develop his leadership, such as statements that PIPs do not change behavior and leaders should communicate less frequently. Ex. 1 (Weil Dep. at 168:5-22, 170:13-18); Ex. 6 (Brown 30b6 Dep. at 38:3-16, 141:7-142:2); Ex. 22 at p. 3. Ms. Brown concluded that, not only was Plaintiff not improving his performance, but he failed to display leadership and was not the right fit for the Manager role. Ex. 6 (Brown 30b6 Dep. at 19:17-25). For his part, Plaintiff believed that Ms. Brown did not understand his management style. Ex. 1 (Weil Dep. at 165:8-15). He felt that Ms. Brown and Ms. Potts treated him differently because they were focused on “subjective” leadership skills. Id. (Weil Dep. at 167:16-168:4). At the same time, Plaintiff acknowledged that an employee may have to change how they are performing when there is new management, and that the “Frontier culture was different” than Verizon. Id. (Weil Dep. at 28:20-21, 152:4-17). J. Ms. Brown Decides to Terminate Plaintiff’s Employment in Early August 2013 Because of His Performance Deficiencies. ¶ 22. In early August 2013, Ms. Brown decided to terminate Plaintiff’s employment because of his failure to improve his performance and his lack of leadership and trustworthiness. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 12 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 12 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Ex. 6 (Brown 30b6 Dep. at 18:10-12, 19:3-16, 39:1-42:11, 146:20-147:19). Ms. Brown explained in an email on August 10th: “David continues to display a lack of leadership and also needs much direction. David’s attempt at helping me has caused me double my workload in many instances over the last 2 weeks just cleaning up what he has not done or cleaning up what he has not followed up or followed through on.” Ex. 22 at p. 4.20 In making her decision, Ms. Brown did not consider Plaintiff’s performance prior to 2013. Ex. 6 (Brown 30b6 Dep. at 91:12- 92:6). Ms. Brown asked for guidance from Human Resources with how to proceed. Id. (Brown 30b6 Dep. at 18:22-19:2). In meeting with Mr. Mailloux, Ms. Brown explained that she wanted to end the PIP early and proceed with termination because of Plaintiff’s lack of performance and her lack of confidence in his honesty about the completion of tasks. Ex. 3 (Mailloux Dep. at 55:1-5, 55:14-56:20, 58:8-19).21 Plaintiff acknowledged that Ms. Brown did not trust that he had met with all of the coaches about mid-year reviews as agreed. Ex. 1 (Weil Dep. at 162:15-18). ¶ 23. On August 9, 2013, Ms. Brown provided a PIP follow up document to Plaintiff. Ex. 21. Although Ms. Brown had made a decision to terminate Plaintiff, she had not received approval from Mr. Mailloux, and thus proceeded with this previously scheduled meeting. Ex. 6 (Brown 30b6 Dep. at 154:1-156:10, 161:2-14). Plaintiff agreed that the documentation (Ex. 21) reflected Ms. Brown’s assessment of his performance on the PIP, that Ms. Brown believed he was not completing action items on the PIP, and that Ms. Brown believed he was missing deadlines on the PIP. Ex. 1 (Weil Dep. at 172:1-2, 172:10-22).22 Plaintiff agreed that Frontier 20 In this email, Ms. Brown reported to her manager, Ms. Loffert, on the situation with Plaintiff. Ex. 22. Ms. Brown testified that she, not Ms. Loffert, made the decision to terminate Plaintiff. Ex. 6 (Brown 30b6 Dep. at 132:23- 133:6). Ms. Loffert did support the decision and intervened at Ms. Brown’s request to encourage Mr. Mailloux to meet with Ms. Brown, but her role was limited. Ex. 6 (Brown 30b6 Dep. at 140:11-143:3, 167:1-168:17); Ex. 3 (Mailloux Dep. at 52:4-20, 53:5-13, 54:15-22, 58:10-13, 60:8-12); Ex. 8 (Loffert Dep. at 79:2-8, 80:3-7, 91:1-20, 95:19-96:19, 99:2-17, 105:10-11). Ms. Brown also copied Vicky Oxley on the August 10th email to “keep [her] in the loop.” Ex. 22 at p. 3. Ms. Oxley was briefly the Senior Vice President of Residential Contact Centers starting on September 1, 2013. Ex. 5 (Potts Dep. at 86:11-87:3). Before that, Ms. Oxley worked on the operations side. Id. (Potts Dep. at 84:11-20). 21 The PIP had an expiration date of August 26th, but this was not a guaranteed period of employment. Ex. 3 (Mailloux Dep. at 47:25-49:1). A PIP could be ended early and the employee terminated if he or she was not showing significant improvement or desire to improve. Ex. 9 (Grepo Dep. at 83:3-8). 22 Joni Grepo, who attended this meeting, testified that Ms. Brown reviewed numerous items with Plaintiff that had Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 13 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 13 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 did not take terminations lightly and, as a company, wanted to make sure everything was done to give employees the best chance. Id. (Weil Dep. at 128:19-129:14). Pursuant to Frontier’s procedure, Ms. Brown prepared a termination request, which Mr. Mailloux reviewed and approved, and sent to in-house counsel for review. Ex. 3 (Mailloux Dep. at 61:1-63:1, 68:6-13). Ms. Potts also sent an email to the Senior Vice President of Human Resources expressing her support for the termination, based on feedback from Ms. Brown. Ex. 5 (Potts Dep. at 79:2-24, 80:25-81:3, 82:23-83:10). Plaintiff was notified of his termination on August 15th, and it was effective on August 16th. Ex. 1 (Weil Dep. at 172:23-173:19). The reason given to Plaintiff for termination was his “inability to overcome [his] performance gaps.” Id. (Weil Dep. at 173:20- 174:1). K. Plaintiff Files a Charge with the EEOC, and Subsequently Files Suit. ¶ 24. On or about October 22, 2013, Plaintiff filed a Charge of Discrimination with the EEOC, and the EEOC issued a Notice of Right to Sue on or about April 28, 2015. Dkt. No. 21, ¶ 3. Plaintiff filed this lawsuit on May 29, 2015. Dkt. No. 1. Plaintiff asserts claims for disparate treatment discrimination based on his race, color, and gender for the failure to promote him and his termination under 42 U.S.C. § 1981, Title VII, and the WLAD. Dkt. No. 21, ¶¶ 27-36. III. ARGUMENT AND AUTHORITY A. Summary Judgment Standard. Summary judgment is not disfavored. Quite to the contrary, it is an “integral part of the Federal Rules” designated for “every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). This principle applies equally in employment discrimination cases, and the U.S. Supreme Court has reiterated that district courts “should not treat discrimination cases differently from other ultimate questions of fact.” Reeves v. Sanderson Plumbing Prods., not been completed. Ex. 9 (Grepo Dep. at 92:24-93:14). Ms. Grepo did not participate in the decision to terminate Plaintiff. Ex. 6 (Brown 30b6 Dep. at 153:14-20); Ex. 9 (Grepo Dep. at 56:2-17, 92:8-23, 105:24-106:10). Ms. Grepo had previously tried to assist Plaintiff in completing his PIP action items and did not understand why he did not complete them. Ex. 9 (Grepo Dep. at 93:24-95:18). Ms. Grepo’s race is Hawaiian/Pacific Islander. Mailloux Decl., ¶ 6. Plaintiff testified that he and Ms. Grepo had a “close relationship.” Ex. 1 (Weil Dep. at 175:15). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 14 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 14 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Inc., 530 U.S. 133, 148 (2000) (citation omitted). Summary judgment should be granted when “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). To be “material,” a factual dispute must have the possibility of affecting the outcome of the lawsuit under the governing law. Golafale v. Swedish Health Servs., 2016 U.S. Dist. LEXIS 46175, at *22 (W.D. Wash Apr. 5, 2016) (Robart, J.). Once a defendant informs the Court of the basis for its motion, the plaintiff must present “significant probative evidence tending to support its claim...” Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991); see also Celotex, 477 U.S. at 322-23; Fed. R. Civ. P. 56(c). Only admissible evidence may be considered. Golafale, 2016 U.S. Dist. LEXIS 46175, at *22. Plaintiff cannot defeat summary judgment by taking a position that is contradicted by all of the evidence in the record. See Scott v. Harris, 550 U.S. 372, 380 (2007). “[S]ummary judgment may be granted in favor of an employer even when the employee has created a weak issue of fact concerning pretext, if abundant, uncontroverted, independent evidence indicates that no discrimination or retaliation occurred.” Richards v. City of Seattle, 2008 U.S. Dist. LEXIS 49406, at *33-34 (W.D. Wash. June 26, 2008) (citations omitted). B. Disparate Treatment Discrimination Under Federal and State Law. To state a prima facie case of disparate treatment discrimination, Plaintiff must show that he is a member of a protected class; had an adverse action taken against him; was doing satisfactory work or was qualified for the job; and was treated less favorably or replaced by someone not in his protected class. Laborde v. Regents of Univ. of California, 686 F.2d 715, 717 (9th Cir. 1982); Grimwood v. University of Puget Sound, Inc., 110 Wn. 2d 355, 362 (1988).23 If Plaintiff establishes a prima facie case, Frontier must articulate a legitimate, non-discriminatory 23 The WLAD is patterned after Title VII and follows the same principles. See, e.g., Oliver v. Pacific Northwest Bell Tel. Co., 106 Wn.2d 675, 678 (1986). In turn, when analyzing an employee's 42 U.S.C. § 1981 claim, courts apply “the same legal principles as those applicable in a Title VII disparate treatment case.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 850 (9th Cir. 2004); see also Jurardo v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987); Woods v. Washington, 2011 U.S. Dist. LEXIS 5423, at *12-13 (W.D. Wash. Jan. 19, 2011) (applying same analysis to all three types of claims in disparate treatment discrimination case). Therefore, the analysis of whether Plaintiff has a cognizable claim is the same under the WLAD, Title VII, and 42 U.S.C. § 1981. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 15 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 15 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Grimwood, 110 Wn.2d at 363-64. If it does so, Plaintiff must then satisfy the ultimate burden of demonstrating that Frontier’s articulated reasons are a mere pretext for discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Grimwood, 110 Wn.2d at 364. Plaintiff must show Defendants’ articulated reasons are pretextual “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs, 450 U.S. at 256 (citation omitted). See also Wallis v. J.R. Simplot Co., 26 F.3d 885, 892 (9th Cir. 1994); Chen v. State of Wash., 86 Wn. App. 183, 190 (1997). C. Plaintiff’s Discrimination Claim Based on a Failure to Promote Him Fails. 1. Plaintiff Cannot Prove His Prima Facie Case Because He Was Not Qualified for the Director Position. Plaintiff cannot establish a prima facie case on his failure to promote claim because he was not qualified for the Director position. Kevin Mailloux, Frontier’s 30(b)(6) witness on the topic of hiring for the position, testified that Plaintiff was not qualified for the Director position because he lacked the leadership and communication skills required for the position. Statement of Facts, Section II, supra, (hereinafter, “SOF”), ¶ 3. Moreover, in comparing Plaintiff’s experience to the job posting requirements, he did not have ten years of management experience. Rather, Plaintiff had only five years of supervisory/management experience. SOF, ¶ 3. Thus, Plaintiff did not satisfy the minimum qualifications for the position of Director. See, e.g., Oliver v. Spokane County Fire Dist., 963 F. Supp. 2d 1162, 1167, 1171 (E.D. Wash. 2013) (granting summary judgment where candidate did not meet minimum qualifications for promotion). 2. Plaintiff Was Not Treated Less Favorably Than a Similarly Situated Individual Outside of His Protected Class. Plaintiff also cannot show that he was treated less favorably than a similarly situated individual outside of his protected class. Although Plaintiff will claim that Ms. Brown was similar to him, in fact Ms. Brown was in a different position (Senior Manager), had substantially Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 16 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 16 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 more management experience with a proven track record leading call centers for Frontier, and displayed strong leadership skills. SOF, ¶ 12. Therefore, Ms. Brown is not “similarly situated.” See, e.g., Vasquez v. County of Los Angeles, 349 F.3d 634, 641-42 (9th Cir. 2003) (affirming summary judgment on disparate treatment claim because individuals were not similarly situated where they did not have “similar jobs and display similar conduct”). 3. Ms. Potts Had a Legitimate Reason for Not Promoting Plaintiff to the Director Position. Even if Plaintiff establishes his prima facie case, Frontier had legitimate reasons for deciding not to promote him. Ms. Potts decided not to promote Plaintiff because he did not demonstrate the leadership skills that were necessary for the position. Ms. Potts provided three specific reasons for her decision not to promote Plaintiff - he needed to develop proactive communication skills, improve his cross-functional collaboration, and increase his accountability - which is supported by contemporaneous documentation, both an email sent by Ms. Potts in March 2013 and Plaintiff’s performance review for 2012. Ms. Potts also discussed these reasons with Plaintiff, and initiated a PDP to help him develop these skills. In his deposition, Plaintiff admitted that these were his weakest areas and that they were important skills for Frontier leaders to possess. SOF, ¶¶ 4, 7-11, 13. Plaintiff’s failure to display leadership and communication skills to Ms. Potts was a legitimate reason for her decision. 4. Plaintiff Cannot Demonstrate Pretext Because There Is No Evidence of Discrimination. Contrary to the allegation in Plaintiff’s Complaint, his race and sex had nothing to do with Ms. Potts’ decision. All of the evidence in this case establishes that Plaintiff needed to develop key leadership skills to be a successful Director at Frontier. Indeed, it is undisputed that Ms. Potts wanted to help Plaintiff develop those skills so that he could be a candidate for promotion in the future. SOF, ¶¶ 10, 13. There is no evidence that Ms. Potts had any discriminatory intent in making her decision. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 17 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 17 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 This Court and the Ninth Circuit have repeatedly granted summary judgment in similar circumstances. In Belayneh v. Holland Am. Line, Inc., 2006 U.S. Dist. LEXIS 69920, at *7-10 (W.D. Wash. Sept. 27, 2006) (Robart, J.), this Court granted summary judgment where the employer selected other applicants for the positions because of their superior leadership and communication skills, and the plaintiff failed to raise a genuine issue as to the authenticity of those reasons. See similarly Garcia v. City of Everett, 2015 U.S. Dist. LEXIS 51067, at *21-27 (W.D. Wash. Apr. 17, 2015) (granting summary judgment on failure to promote claims where stated reasons were lack of leadership skills). In Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1437-38 (9th Cir. 1990), the Ninth Circuit held that the plaintiff failed to raise a triable issue of pretext because the employer’s reasons for not promoting him-lack of leadership, proper attitude, and professionalism-were worthy of credence. In Jordan v. Foxx, 107 F. Supp. 3d 1144, 1151-53 (W.D. Wash. 2015), this Court granted summary judgment where the reasons for promoting a white candidate were documented and discussed with the plaintiff, and the decision- maker did not believe the plaintiff was fit for the promotion because of her past performance. Similarly, Plaintiff cannot raise a genuine issue of material fact on his failure to promote claim because Ms. Potts has consistently articulated three reasons for not promoting him related to his leadership skills. These three reasons were documented in an email at the time of the decision, were discussed with Plaintiff (and documented in notes for that conversation), formed the basis of a PDP issued to Plaintiff, and were supported by his performance review. SOF, ¶¶ 8, 11, 13. As long as the employer’s reasons are honest, it does not even matter if they are accurate. The Court does not sit as a “super personnel department” to judge whether the employer made the correct decision. Garcia, 2015 U.S. Dist. LEXIS 51067, at *20. Rather, the Court’s role is to evaluate whether any discrimination occurred. See id.; see also Laborde v. Regents of Univ. of California, 686 F.2d 715, 718 (9th Cir. 1982) (plaintiff failed to establish pretext because the employer reasonably decided that the professor’s “good” scholarship did not meet the high standards necessary for promotion, despite “mixed” reviews from outside scholars). First, there Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 18 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 18 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 is no evidence that Ms. Potts’ reasons were inaccurate, as Plaintiff himself admitted that they were his weakest areas. To the extent Plaintiff points to other aspects of his prior performance or the call center’s performance, these issues are immaterial. Ms. Potts made her decision based on weaknesses that she observed in Plaintiff’s leadership and communication skills, not based on his numeric performance rating or data on the call center’s performance.24 SOF, ¶¶ 4, 8-9. See also Merrick, 892 F.2d at 1438 (employer’s decision based on assessment of leadership skills, despite otherwise satisfactory reviews, did not raise a triable issue of fact). There is no evidence that anything other than Ms. Potts’ stated reasons motivated her decision. Plaintiff may also attempt to argue that he was better qualified than Ms. Brown because he had a Bachelor’s degree (a “preferred” qualification for the position) and because his performance rating was one-tenth of a point higher than Ms. Brown’s. This, too, must fail. In Merrick, 892 F.2d at 1438, the Ninth Circuit rejected a similar claim and affirmed summary judgment, despite the plaintiff’s evidence that he was better qualified than the selected candidate. See also Gordon v. Potter, 2008 U.S. Dist. LEXIS 41043, at *18-24 (W.D. Wash. May 21, 2008) (granting summary judgment where the decision-maker believed that the plaintiff was less qualified than the selected candidate, based on interview performance and experience). Here, the evidence is undisputed that Ms. Brown had more than twice as much experience in a higher-level position (Senior Manager) and had successfully led two different Frontier call centers, and that Ms. Potts believed Ms. Brown had the necessary leadership skills for the position. SOF, ¶ 12. 5. Plaintiff Cannot Defeat Summary Judgment by Pointing to Inadmissible or Immaterial Evidence. Finally, Plaintiff cannot defeat summary judgment by pointing to inadmissible or immaterial evidence. See Golafale, 2016 U.S. Dist. LEXIS 46175, at *22 (Robart, J.). Plaintiff 24 If Plaintiff produces the Factor Analysis Stack Ranking Report, it is undisputed that Everett was ranked in the bottom half of the call centers in two of the three categories covered by that report. Ex. 1 (Weil Dep. at 74:11-14). Ms. Loffert and Ms. Brown both testified that the report had flaws, and Frontier stopped using it. Ex. 6 (Brown 30b6 Dep. at 194:5-198:23); Ex. 8 (Loffert Dep. at 26:25-28:19). Plaintiff “can’t speak to” whether the report had flaws in it. Ex. 1 (Weil Dep. at 75:23-76:1). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 19 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 19 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 alleges that Ms. Holmgren, his prior manager, told him that his race, color, and sex were factors in the decision not to promote him. There is no admissible evidence that Ms. Holmgren actually made this statement-only hearsay. See, e.g., Oki America, Inc. v. Microtech Int’l, Inc., 872 F.2d 312, 314 (9th Cir. 1989); Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986). Even if this statement is admitted, it is insufficient to raise a genuine issue of fact because Ms. Holmgren was not a decision-maker for the promotion. Plaintiff admitted in his deposition that this alleged conversation took place in April 2013, several months after Ms. Holmgren had moved to a different position, and that Ms. Holmgren was not involved in the decision not to promote him. Ms. Holmgren was reassigned in January 2013 to a position where she had no management responsibility for the call centers, and she played no role in the decision to promote Jennifer Brown in April 2013. SOF, ¶¶ 5-7; Ex. 1 (Weil Dep. at 194:22-195:1). Thus, this alleged comment by someone who was not involved in the decision is insufficient to establish pretext. See, e.g., Castillo v. Wash. State Dep't of Soc. & Health Servs., 2007 U.S. Dist. LEXIS 101738, at *27-28 (W.D. Wash. Sept. 14, 2007) (Robart, J.) (granting summary judgment where plaintiff failed to show a “nexus” between remarks about her race and the decision to terminate her); Griffith v. Schnitzer Steel, Indus., 128 Wn. App. 438, 457 (2005) (“Statements by nondecision makers, or statements by decision makers unrelated to the decisional process itself, cannot satisfy the employee’s burden of demonstrating animus.”) (citations omitted). See also Mondero v. Salt River Project, 400 F.3d 1207, 1213 (9th Cir. 2005); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996); DeHorney v. Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467-68 (9th Cir. 1989); Domingo v. Boeing Emples. Credit Union, 124 Wn. App. 71, 90 (2004). Other than this alleged comment by Ms. Holmgren, no one at Frontier made any inappropriate comments to Plaintiff regarding his race or gender. Ex. 1 (Weil Dep. at 193:25-194:11). Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 20 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 20 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 D. Plaintiff’s Discrimination Claim Based on His Termination Fails. 1. Plaintiff Cannot Prove His Prima Facie Case Because He Was Not Performing Satisfactory Work. Plaintiff cannot establish a prima facie case on his termination claim because he was not performing satisfactory work in 2013. Indeed, Plaintiff’s self-evaluation in 2013 reflects a rating of below 3, which indicates that his performance was unsatisfactory. Moreover, Ms. Brown placed Plaintiff on a PIP because he failed to meet the expectations of his position, and extensively documented his performance deficiencies. SOF, ¶¶ 17-23. If Plaintiff now submits testimony that his performance was satisfactory in 2013, his subjective belief contrary to the overwhelming evidence in the record is insufficient to defeat summary judgment. See Bradley v. Harcourt Brace & Co., 104 F.3d 267, 270 (9th Cir. 2000) (“[A]n employee’s subjective personal judgments of her competence,” without more, however, “do not raise a genuine issue of material fact.”) (citation omitted). See also Mangaliman v. Washington State DOT, 2014 U.S. Dist. LEXIS 41473, at *19-21 (W.D. Wash. Mar. 26, 2014) (granting summary judgment where the evidence was undisputed that the plaintiff was not meeting performance expectations); Barnes v. Nat’l Council of Juvenile & Family Court Judges, Fund, Inc., 2012 U.S. Dist. LEXIS 22986 (D. Nev. 2012) (granting summary judgment where “Plaintiff is unable to provide any evidence that challenges Defendant’s overwhelming evidence that Plaintiff performed poorly”). Moreover, Plaintiff’s performance in prior years is immaterial because his termination was based solely on his performance in 2013, and he acknowledged that an employee may have to change how they are performing when there is new management. SOF, ¶¶ 21-22. 2. Plaintiff Was Not Treated Less Favorably Than a Similarly Situated Individual Outside of His Protected Class. In addition, with respect to his termination, Plaintiff cannot establish that he was replaced by someone outside of his protected class. After Plaintiff’s termination, the Call Center Manager position was eliminated, and no one has been hired into that position. Mailloux Decl., ¶ 4. Likewise, Plaintiff cannot establish that “similarly situated” individuals outside of his protected Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 21 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 21 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 class were treated more favorably because he has no evidence of any similar employees who suffered from similar performance deficiencies. Even if white female Managers and Directors were not placed on PIPs or terminated, it is immaterial because there is no evidence that any of the females were performing unsatisfactorily. See, e.g., Walia v. Potter, 2013 U.S. Dist. LEXIS 13619, at *7-8 (W.D. Wash. Jan. 30, 2013) (Robart, J.) (granting summary judgment where “there are no examples of employees who performed similarly to [the plaintiff] but were not fired”); Salas v. Indep. Elec. Contrs. Inc., 2013 U.S. Dist. LEXIS 65332, at *24-26 (W.D. Wash. May 6, 2013) (the “similarly situated” analysis is “stringent,” and an individual who does not have performance problems is not an appropriate comparator to a plaintiff who does have performance problems); Brown v. Univ. of Wash., 2010 U.S. Dist. LEXIS 126452, at *11-13 (W.D. Wash. Dec. 1, 2010) (finding no genuine issue on this element where the alleged comparators did not have similar disciplinary action taken against them); Green v. Seattle Art Museum, 2008 U.S. Dist. LEXIS 41189, at *13-14 (W.D. Wash. May 22, 2008) (granting summary judgment where there were no comparators who engaged in similar misconduct); Young v. Port of Tacoma, 2005 U.S. Dist. LEXIS 37680, at *14 (W.D. Wash. Aug. 31, 2005) (no genuine issue where alleged comparators did not have a similar performance history). 3. Ms. Brown Had a Legitimate Reason for Terminating Plaintiff. Even if Plaintiff establishes his prima facie case, Frontier has articulated a legitimate, non-discriminatory reason for discharging him: namely, serious performance deficiencies that were not corrected despite months of counseling and performance improvement efforts. Ms. Brown documented Plaintiff’s performance deficiencies in a series of detailed documents, and Plaintiff acknowledged that Ms. Brown was “very good” at documentation. In addition to failing to meet goals on his PIP, Plaintiff made statements to Ms. Brown that, in her view, failed to display leadership and led her to conclude that he was not the right fit for the Manager role. Ms. Brown also lost trust in Plaintiff because she perceived that he had not been honest with her when he reported completing tasks that she later learned were not complete. SOF, ¶¶ 13-23. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 22 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 22 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Plaintiff’s failure to improve his performance, display leadership, and maintain trustworthiness were legitimate reasons for Ms. Brown’s decision. 4. Plaintiff Cannot Demonstrate Pretext Because There Is No Evidence of Discrimination. Faced with these legitimate reasons for his termination, Plaintiff cannot demonstrate pretext because he does not have specific, substantial evidence that Ms. Brown’s reasons are unworthy of belief. See Mondero v. Salt River Project, 400 F.3d 1207, 1214 (9th Cir. 2005); Griffin v. Boeing Co., 2015 U.S. Dist. LEXIS 83498, at *17-19 (W.D. Wash. June 25, 2015) (plaintiff’s denial that her performance was deficient was insufficient to survive summary judgment). Courts are not intended as a forum for appealing lawful employment decisions simply because employees disagree with them. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 190 n.14 (2001); see also Griffith v. Schnitzer Steel, Indus., 128 Wn. App. 438, 447, 449-53 (2005) (employer’s desire for a change in management style was a legitimate reason for termination, even without documentation, and employee failed to present evidence of pretext). Importantly, Plaintiff testified that the PIP documentation reflected Ms. Brown’s assessment of his performance, Ms. Brown believed he was not completing action items on the PIP, Ms. Brown believed he was missing deadlines on the PIP, and Ms. Brown did not trust he had completed an action item he previously agreed to complete. SOF, ¶¶ 20, 23. Thus, it is undisputed that Ms. Brown had an honest belief about Plaintiff’s performance deficiencies, and Plaintiff cannot raise a genuine issue to the contrary. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (“[C]ourts only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even baseless.”) (citation and quotations omitted); Covarrubias v. Brink’s, Inc., 2006 U.S. Dist. LEXIS 80693, at *12-18 (W.D. Wash. Nov. 3, 2006) (granting summary judgment where the plaintiff failed to establish that he performed satisfactorily or that the employer’s reasons for termination were pretextual); Adil Lahrichi v. Lumera Corp., 2006 U.S. Dist. LEXIS 18556, at *39-42 (W.D. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 23 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 23 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Wash. Mar. 2, 2006) (granting summary judgment where the plaintiff failed to raise a genuine issue about the decision-maker’s “beliefs about Plaintiff’s management skills and practices”); Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355, 364-65 (1988) (affirming summary judgment because the plaintiff’s opinions did not raise a genuine issue in light of the employer’s “long-standing, documented reasons” of job deficiencies); Chen v. State of Wash., 86 Wn. App. 183, 190-91 (1997) (affirming summary judgment because the plaintiff’s explanations did not raise a genuine issue in light of the employer’s examples of poor work performance). Furthermore, Plaintiff cannot raise any genuine issue that Ms. Brown was motivated by discriminatory reasons. See Mangaliman v. Washington State DOT, 2014 U.S. Dist. LEXIS 41473, at *19-20 (W.D. Wash. Mar. 26, 2014) (granting summary judgment where the plaintiff provided no evidence of discriminatory intent). Indeed, Plaintiff believed that Ms. Brown did not understand his management style, and he felt that she treated him differently because she was focused on “subjective” leadership skills. SOF, ¶ 21. Employers are entitled to make decisions based on employees’ “subjective” skills, even if employees disagree with them. Loomis v. Washington, 2011 U.S. Dist. LEXIS 103988, at *9 (W.D. Wash. Sept. 14, 2011) (granting summary judgment where “[t]here is nothing in the record that supports an allegation of discriminatory animus... [the plaintiff] simply disagrees with the conclusions of her superior officers about her leadership skills”); Chen, 86 Wn. App. at 190-91 (“Subjective evaluations of performance are legitimate when the job requires the employee to exercise professional judgment.”). There is absolutely no evidence of discriminatory animus based on Plaintiff’s race or gender. In fact, Ms. Brown was grooming a Hispanic male supervisor, Miguel Castillo, to manage the Everett center after Plaintiff’s departure. Ex. 7 (Brown Dep. at 19:6-9, 19:19-21:2). 5. Plaintiff Cannot Defeat Summary Judgment by Pointing to Inadmissible or Immaterial Evidence. Plaintiff may also point to allegations of discrimination made by Clinton Arnold, an African American Call Center Director in Charleston, West Virginia, who was terminated in Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 24 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 24 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 March 2013 and brought a claim against Frontier for race discrimination. Any testimony of Mr. Arnold is immaterial and should be excluded as prejudicial “me too” evidence because it involves different circumstances and different decision-makers. See, e.g., Walech v. Target Corp., 2012 U.S. Dist. LEXIS 44119, at *20 (W.D. Wash. Mar. 28, 2012); Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1185 (C.D. Cal. 2013); Megivern v. Glacier Hills Inc., 2012 WL 529977, at *59-63 (E.D. Mich. Feb. 17, 2012); Bell v. Crowne Management, LLC, 844 F. Supp. 2d 1222, 1236 (S.D. Ala. 2012); Jones v. St. Jude Medical S.C., Inc., 823 F. Supp. 2d 699, 734 (S.D. Ohio 2011). Mr. Arnold’s circumstances are different because he was in a different position and terminated for different reasons by a different supervisor without any disciplinary action, unlike Plaintiff.25 Ex. 10 (Arnold Dep. at 20:4-16, 25:9-11, 40:1-2, 43:15- 18, 69:5-8, 69:14-19); Ex. 8 (Loffert Dep. at 16:24-19:25, 22:14-23:6, 24:25-26:6, 30:14-19, 32:13-33:12, 37:8-21, 39:7-10, 40:23-25, 41:19-42:7, 43:12-44:1, 70:9-17). Mr. Arnold has no personal knowledge about Plaintiff’s situation. Ex. 10 (Arnold Dep. at 84:23-85:14). In addition, Mr. Arnold’s claims were different because he was specifically concerned about discrimination against African Americans and a “good ole boys club,” and he did not bring claims for gender discrimination or failure to promote. Id. (Arnold Dep. at 73:1-11, 82:6-14); Ex. 23. Thus, Mr. Arnold’s allegations are not material or admissible. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant summary judgment in their favor as to all claims. 25 Ms. Brown and Ms. Potts were not involved in Mr. Arnold’s termination. Ex. 5 (Potts Dep. at 12:18-25); Ex. 7 (Brown Dep. at 23:25-24:2). Ms. Loffert was Mr. Arnold’s supervisor and made the decision to terminate him. Ex. 8 (Loffert Dep. at 24:25-25:4, 35:20-22). Even if the Court considers Mr. Arnold’s allegations, there is no evidence of discriminatory animus on the part of Ms. Loffert. See Ex. 10 (Arnold Dep. at 61:23-62:18). Mr. Arnold did not name her as an individual defendant in his lawsuit, though he did name others. Ex. 23. Moreover, Ms. Loffert has hired and promoted two other “dark-skinned males” into Director-level and higher positions. Mailloux Decl., ¶ 7. Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 25 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 25 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 August 2, 2016 s/ Breanne Sheetz Martell James G. Zissler, WSBA #30287 jzissler@littler.com Breanne Sheetz Martell, #39632 bsmartell@littler.com LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 Phone: 206.623.3300 Fax: 206.447.6965 E-Mail: jzissler@littler.com Attorneys for Defendants CITIZENS TELECOM SERVICES COMPANY, LLC; and FRONTIER COMMUNICATIONS CORPORATION Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 26 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS’ MOTION FOR SUMMARY JUDGMENT - 26 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 CERTIFICATE OF SERVICE I am a resident of the State of Washington, over the age of eighteen years, and not a party to the within action. My business address is One Union Square, 600 University Street, Ste. 3200, Seattle, WA 98101. I hereby certify that on August 2, 2016, I electronically filed the foregoing document(s) with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the party(s) set forth below. Terry A. Venneberg, WSBA #31348 Attorney at Law 3425 Harborview Drive Gig Harbor, WA 98332 Tel: 253.858.6601 Fax: 253.858.6603 terry@washemploymentlaw.com jan@washemploymentlaw.com I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on August 2, 2016, at Seattle, Washington. s/ Sally Swearinger Sally Swearinger sswearinger@littler.com LITTLER MENDELSON, P.C. Firmwide:141612067.5 064194.1045 Case 2:15-cv-00835-JLR Document 34 Filed 08/02/16 Page 27 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER GRANTING DEFS’ MOTION FOR SUMMARY JUDGMENT- 1 FIRMWIDE:141903744.1 064194.1045 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 The Honorable James L. Robart UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE DAVID R. WEIL, Plaintiff, v. CITIZENS TELECOM SERVICES COMPANY, LLC; and FRONTIER COMMUNICATIONS CORPORATION, Defendants. Case No. 2:15-cv-00835-JLR [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT The Court, having reviewed the pleadings and documents filed in support of and in opposition to Defendants’ Motion for Summary Judgment (“Motion”), and the remainder of the file herein, finds that no material issues of fact exist and Defendants are entitled to summary judgment in their favor as to all claims. Therefore, the Court HEREBY ORDERS that Defendants’ Motion is granted in its entirety. The Complaint is dismissed with prejudice. DATED this ____ day of _________________, 2016. THE HONORABLE JAMES L. ROBART Case 2:15-cv-00835-JLR Document 34-1 Filed 08/02/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER GRANTING DEFS’ MOTION FOR SUMMARY JUDGMENT- 2 FIRMWIDE:141903744.1 064194.1045 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Presented by: s/ Breanne Sheetz Martell James G. Zissler, WSBA #30287 jzissler@littler.com Breanne Sheetz Martell, #39632 bsmartell@littler.com LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 Phone: 206.623.3300 Fax: 206.447.6965 E-Mail: jzissler@littler.com Attorneys for Defendants CITIZENS TELECOM SERVICES COMPANY, LLC; and FRONTIER COMMUNICATIONS CORPORATION Case 2:15-cv-00835-JLR Document 34-1 Filed 08/02/16 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER GRANTING DEFS’ MOTION FOR SUMMARY JUDGMENT- 3 FIRMWIDE:141903744.1 064194.1045 (2:15-cv-00835-JLR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 CERTIFICATE OF SERVICE I am a resident of the State of Washington, over the age of eighteen years, and not a party to the within action. My business address is One Union Square, 600 University Street, Ste. 3200, Seattle, WA 98101. I hereby certify that on August 2, 2016:  I electronically filed the foregoing document(s) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the party(s) set forth below. Terry A. Venneberg, WSBA #31348 Attorney at Law 3425 Harborview Drive Gig Harbor, WA 98332 Tel: 253.858.6601 Fax: 253.858.6603 terry@washemploymentlaw.com jan@washemploymentlaw.com I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on August 2, 2016, at Seattle, Washington. s/ Sally Swearinger Sally Swearinger sswearinger@littler.com LITTLER MENDELSON, P.C. Case 2:15-cv-00835-JLR Document 34-1 Filed 08/02/16 Page 3 of 3