Lavelle v. CL West Management LLC et al

Filing 128

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

Case 2:21-cv-00170-TOR

ECF No. 128

filed 01/18/23

PageID.1770 Page 1 of 11

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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REBECCA LAVELLE,
Plaintiff,
v.
CL WEST MANAGEMENT LLC,
INC.; WESTMONT HOSPITALITY
GROUP EXTENDED STAY; WHG,
LLC; REDROOF, INC.; and
HOMETOWNE STUDIOS, LLC,

CASE NO: 2:21-CV-0170-TOR
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Defendants.
The Court held a bench trial on January 17, 2023. Pro se Plaintiff Rebecca

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Lavelle represented herself. Benjamin J. Stone appeared on behalf of Defendants.

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The Court has reviewed the record and files herein, considered the evidence and

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the parties’ arguments, and is fully informed. This Order supplements the Court’s

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Oral Ruling. ECF No. 127. Pursuant to Federal Rule of Civil Procedure 52(a),

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below are the Court’s Findings of Fact and Conclusions of Law. To the extent a

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finding of fact or conclusion of law is deemed the opposite, the label the Court

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places on the finding does not control.
BACKGROUND

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This case arises out of Plaintiff’s employment with Hometowne Studios in

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Spokane Valley, Washington. ECF No. 9 at 3. Plaintiff is proceeding pro se and in

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forma pauperis under 28 U.S.C. § 1915. ECF No. 7. Plaintiff’s only remaining

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claims are for age discrimination under the Age Discrimination Employment Act

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(“ADEA”) and overtime violations under the Fair Labor Standards Act (“FLSA”).

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ECF Nos. 40, 117. On January 4, 2023, the Court held a pretrial conference and

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reserved ruling on Defendants’ motion in limine. ECF No. 117.

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At the bench, the Court heard testimony from the following witnesses:

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Tamara Butler, Nikki Maio, Jennifer Lebsack, Plaintiff, Lori Chandler, and

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Thomas Gualano. All witnesses were cross-examined. The Court admitted into

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evidence various exhibits, including the deposition transcript testimony of Gary

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Sawyer. Having considered all the foregoing evidence, the Court now issues the

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following Findings of Fact and Conclusions of Law.
DISCUSSION

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I.

FINDINGS OF FACT
The Court’s oral and written findings of fact are based on the preponderance

of the evidence presented at trial.

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1.

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Defendant CL West Management, LLC, owns HomeTowne Suites in

Spokane, Washington (“HomeTowne Suites”).
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On May 15, 2019, HomeTowne Suites hired Plaintiff Rebecca Lavelle as a

Maintenance Technician.

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3.

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rate to $14.94.

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4.

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ECF No. 128

Plaintiff’s starting wage was $14.50 an hour. HomeTowne Suites raised her

Plaintiff’s initial supervisor was General Manager Joshua Hendricks.

Hendricks separated from HomeTowne Suites in October 2019.

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5.

Plaintiff applied for the General Manager position, but was not selected.

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6.

In November 2019, HomeTowne Suites hired Gary Sawyer as General

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Manager.
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Plaintiff’s initial schedule to start work was at 9 AM, but Gary Sawyer

modified the start time to 10 AM to accommodate Plaintiff.
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In December 2019, Plaintiff discovered the Maintenance Technician job

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position was posted online. Plaintiff also learned through others that Gary Sawyer

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called her “Ol Girl” at some point and not directly to Plaintiff.

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9.

On December 20, 2019, Plaintiff was given her first written warning

for failure to arrive to work on time, arriving one hour late.
10.

Gary Sawyer did not discipline housekeepers for arriving late to work.

There are typically 3–5 housekeepers working on any given day.

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11.

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On January 12, 2020, Mr. Sawyer documented Plaintiff again, stating

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he “witnessed [Plaintiff] using the [General Manager’s] computer to apply for jobs

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outside the company while clocked in which is saved in the history of the computer.

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[Plaintiff] also was utilizing the same computer that night after [she] had clocked out

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for the day for the same purpose.”

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12.

Improper use of company property is a violation of CL West

Management’s handbook policy.
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On January 14, 2020, Plaintiff was documented because she “failed to

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complete the task of replacing trash bags in all containers leading to severe mess.”

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Plaintiff testified that two garbage cans needed cleaning and that hotel was out of a

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supply of trash bags.

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On January 15, 2020, Plaintiff was documented for failing to arrive to

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work on time. Plaintiff disputes this, stating she was at work early but was not on

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the job because she was cleaning her son’s room and was “doing the housekeepers

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a favor.” After cleaning her son’s room, Plaintiff did not clock into work. Plaintiff

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testified she did not want to clock in due to the “hostile environment” and would

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rather work without pay.

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Failing to clock in for work is a violation of CL West Management’s

attendance policy.

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16.

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On January 16, 2020, Plaintiff was counseled as Mr. Sawyer “was

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informed by a tenant that let [him] know that [she had] been making several

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unwanted advances toward them and wanted this to end.”

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Fraternization is a violation of CL West Management’s policy against

disorderly action.

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On January 22, 2020, Plaintiff was documented as she “called and Text

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at 9:59am one minute prior to [her] 10:00 start time and stated that [she] had to find

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a new place to live. Per our discussion on 1/19/2020 you understood any tardiness

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would result in a termination. You did not follow the expectations given on the final

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write up and it is now a termination.”

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employee would not be to work on time absent emergency circumstances.

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CL West Management required at least four hours of notice that an

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II.

On January 26, 2020, Plaintiff was terminated.
CONCLUSIONS OF LAW

This Court has original jurisdiction of this lawsuit under 28 U.S.C. § 1331.

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A. Age Discrimination Employment Act

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1. To state a claim of discrimination under the ADEA for disparate treatment, a

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plaintiff must show that (1) she was at least forty years old, (2) she was

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performing her job satisfactorily, (3) she was discharged, and (4) either

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replaced by substantially younger employees with equal or inferior

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qualifications or discharged under circumstances otherwise giving rise to an

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inference of age discrimination. Diaz v. Eagle Produce Ltd. P’ship, 521

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F.3d 1201, 1207 (9th Cir. 2008).

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2. If satisfied, the burden shifts to the employer to articulate a “legitimate,

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nondiscriminatory reason for the adverse employment action.” Becka v.

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APCOA/Standard Parking, 146 F. Supp. 2d 1109, 111 (C.D. Cal.). If the

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employer’s burden is satisfied, the burden shifts back to the plaintiff to show

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“pretext” for the age discrimination. Id.

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3. Evidence of discrimination may be direct or circumstantial. Messick v.

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Horizon Indus. Inc., 62 F.3d 1227, 1229 (9th Cir. 1995). “Direct evidence

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of discriminatory intent consists of evidence which, if believed, proves the

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fact of discriminatory animus without inference or presumption.” Mayes v.

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WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017).

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4. Stray remarks “uttered in an ambivalent manner” and not directly tied to an

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adverse action are insufficient to raise an inference of discrimination. Nesbit

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v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993); Merrick v. Farmers Ins.

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Group, 892 F.2d 1434, 1438 (9th Cir. 1990).

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5. Plaintiff was at least forty years old during the relevant time period.

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6. While Plaintiff performed her job satisfactorily in some areas, Plaintiff

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performed her job unsatisfactorily in other areas.

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7. Plaintiff performed her job satisfactorily when she reduced the number of

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out of order hotel rooms and received positive performance reviews.

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8. Plaintiff performed her job unsatisfactorily when she did not clock in for

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work, was late without giving notice pursuant to policy, and did not return

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two garbage bins to the hotel floor for guest use.

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9. Plaintiff did not provide evidence that she was replaced by a substantially
younger employee with equal or inferior qualifications.
10.Plaintiff stated Gary Sawyer referred to her as “Ol Girl”. Gary Sawyer
denied making this statement. This stray remark was not tied to any adverse

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employment action and the remark is insufficient to raise an inference of

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discrimination.

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11.When asked why she was terminated, Plaintiff testified Gary Sawyer did not

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like her and that he had a problem with her. When asked why she was

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terminated at her deposition, Plaintiff stated she had no idea and that she

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could only surmise Gary Sawyer had a problem with her.

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12.Gary Sawyer provided Plaintiff with progressive discipline in the form of

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written warnings for improperly using the company computer to look for

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jobs, failing to replace garbage cans which led to a trash in the hotel, failing

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to arrive to work on time, failing to clock into work, and for making

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unwanted advances on a hotel guest.

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13.On January 19, 2020, Plaintiff received a Final Written Warning for the
aforementioned conduct.
14.On January 22, 2020, Plaintiff was documented as she “called and Text at

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9:59am one minute prior to [her] 10:00 start time and stated that [she] had to

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find a new place to live. Per our discussion on 1/19/2020 you understood

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any tardiness would result in a termination. You did not follow the

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expectations given on the final write up and it is now a termination.”

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15.Pursuant to company policy, absent an emergency, Plaintiff was to give at
least four hours of notice if she could not be at work on time. Finding a new
place to live is not an emergency.

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16.On January 26, 2020, Plaintiff was terminated.

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17.Defendant offered legitimate, nondiscriminatory reasons for Plaintiff’s

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termination.
18.Plaintiff asserts she was treated differently because Gary Sawyer did not

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discipline housekeepers for failing to arrive to work on time. Plaintiff did

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not provide evidence other than the stray remark that this different treatment

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occurred due to her age.

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19.Witness testimony indicated that housekeepers regularly arrived late to work
and were not disciplined by Gary Sawyer. There are typically 3–5

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housekeepers working every day. In contrast, Plaintiff was the sole

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Maintenance Technician.

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20.While Plaintiff provided evidence employees in other positions were not

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disciplined for being late, Plaintiff provided no evidence that employees,

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similarly situated or otherwise, were not disciplined for failing to clock in.

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21.Plaintiff provides no admissible evidence to rebut the discipline for making
unwanted advances on a hotel guest.
22.Plaintiff failed to demonstrate a prima facie case of age discrimination based
on the preponderance of the evidence.

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23.Plaintiff also failed to rebut Defendants’ reasons for her termination.

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24.Judgment in favor of Defendants on Plaintiff’s ADEA claim is appropriate.

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B. Fair Labor Standards Act

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1. The FLSA requires employers to pay overtime pay where an employee

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works over 40 hours in a given workweek. 29 U.S.C. § 207.

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2. “[A]t a minimum, a plaintiff asserting a violation of the FLSA overtime

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provisions must allege that she worked more than forty hours in a given

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workweek without being compensated for the hours worked in excess of

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forty during that week.” Landers v. Quality Commc’ns, Inc., 771 F.3d 638,

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645 (9th Cir. 2014), as amended (Jan. 26, 2015).

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3. Plaintiff provided no evidence that she worked over 40 hours in a given
workweek.
4. Plaintiff provided no evidence that she was not paid for hours worked in
excess of forty hours during a given workweek.
5. Plaintiff only speculates that she “worked a lot more” than the hours she was
paid on December 14, 19, 20, 27, 2019.
6. Plaintiff contends the January 31, 2020 paycheck reflecting “204 hours

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YTD” was modified for unknown reasons. Testimony demonstrates that the

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January 1–15, 2020 paycheck included the pay for the last two weeks of

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December 2019. This paycheck is not evidence that Plaintiff worked in

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excess of 40 hours in any given workweek for January 2020, and Plaintiff

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did not testify otherwise. In fact, Plaintiff admits that she did not work the

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176.25 hours from January 1–15, 2020.

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7. Plaintiff’s timestamp cards are not evidence of any uncompensated
overtime.
8. Plaintiff has failed to prove her FLSA claim by a preponderance of the
evidence.
9. Judgment in favor of Defendants on Plaintiff’s FLSA overtime claim is
appropriate.

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CONCLUSION

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Based on these findings of fact and conclusion of law, the Court finds in favor
of Defendants on both claims.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. The Clerk’s Office is directed to enter Judgment in Defendants’ favor.
2. No costs or fees are awarded to Defendants due to Plaintiff’s limited
financial resources. Fed. R. Civ. P. 54(d); Save Our Valley v. Sound
Transit, 335 F.3d 932, 945 (9th Cir. 2003).
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order
and Judgment accordingly, provide copies to the parties, and CLOSE the file.
DATED January 18, 2023.

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THOMAS O. RICE
United States District Judge

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