Demmings v. Pacific Maritime Association et al

Filing 120

ORDER by Judge Richard A Jones. The court GRANTS defendants' motions for summary judgment (Dkt. ## 52 , 57 ) and DENIES plaintiffs' motions for summary judgment (Dkt. ## 49 , [65), and 93 motion to strike. Plaintiff's motion to direct the parties to pro bono mediation. Dkt. # 99 is DENIED. (CL) (See Order for complete details) (cc: pltf)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RODERICK DEMMINGS,

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Plaintiff,

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ORDER

v.

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CASE NO. C11-1864 RAJ

PACIFIC MARITIME
ASSOCIATION, ILWU LOCAL 19,
JOHN DOES 1-100,

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Defendants.

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This matter comes before the court on a number of motions and cross-motions for
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summary judgment. Dkt. ## 49, 52, 57, 65. Pro se plaintiff Roderick Demmings moves
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separately for partial summary judgment against defendant Longshore Division of the
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International Longshore and Warehouse Union Local 19’s (“ILWU”) (Dkt. # 49) and
defendant Pacific Maritime Association (“PMA”) (Dkt. # 65). Defendant ILWU filed a

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cross-motion for summary judgment as part of its opposition. Dkt. # 52. Defendant
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PMA has also moved for summary judgment. Dkt. # 57.
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On September 26, 2012, the court granted defendants’ motions to dismiss under
Rule 12(b)(6) to dismiss plaintiff’s claims for breach of duty of fair representation,

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ORDER- 1

1 breach of contract, discrimination and retaliation on the basis of race and disability under
2 Title VII and the Washington Law Against Discrimination (“WLAD”) related to his
3 deregistration and request for accommodation, and under section 1983. Dkt. # 40. On
4 September 16, 2013, the court granted defendants’ motion to dismiss plaintiff’s ADA
5 claim related to his deregistration and request for accommodation. Dkt. # 119.
6 Additionally, in plaintiff’s combined response to defendants’ motions, plaintiff concedes
7 that he “does not have sufficient evidence to establish his claims for racial disparate
8 treatment and disparate impact,” which disposes of his WLAD race-based claim.1 Dkt. #
9 84 at 1.
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In his combined response, plaintiff identifies the following claims as currently

11 pending before the court: (1) Race-based hostile work environment under the WLAD,
12 section 1981 and Title VII, (2) disability-based hostile work environment under the
13 WLAD, (3) disability-based failure to accommodation under the WLAD, and (4)
14 disability-based retaliation. Dkt. # 84 at 1-2. Plaintiff is mistaken. The court has
15 previously held that plaintiff did not allege a hostile work environment claim in his
16 complaint. Dkt. # 40 at 8-9. Accordingly, the first and second purported claims are not
17 pending before the court. Additionally, upon review of the complaint, the court finds that
18 plaintiff did not allege a claim for retaliation. Dkt. # 8. Accordingly, that claim is not
19 pending before the court. Plaintiff’s failure to accommodate claim is based on his
20 deregistration. See Dkt. # 84 (Opp’n) at 13:5-8, 14:2-5, 15:2-4. The court has already
21 ruled that the denial of disability accommodation and deregistration are discrete acts that
22 occurred outside of the filing period, and are therefore time-barred. Dkt. # 40 at 9.
23 Accordingly, his failure to accommodate claim that is based on deregistration has already
24 been dismissed. Finally, it is unclear to the court whether plaintiff is attempting to allege,
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The court also believes this concession disposes of his section 1981 claim. However,

27 since the parties appear to disagree, the court has addressed his section 1981 claim below.

ORDER- 2

1 for the first time, a claim under the Family and Medical Leave Act (“FMLA”). Dkt. # 84
2 (Opp’n) at 14. To the extent that he does, such a claim was never alleged in the
3 complaint, and is thus untimely.2
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Following the court’s orders and plaintiff’s concessions, the only claims that

5 remain are race discrimination in deregistration under section 1981 and disability
6 discrimination in reinstatement under the Washington Law Against Discrimination
7 (“WLAD”).
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Having considered the memoranda, exhibits, and the record herein,3 the court

9 GRANTS defendants’ motions for summary judgment and DENIES plaintiff’s motions
10 for summary judgment.
11 A. Motions to Strike
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Plaintiff moves to strike various filings of PMA (Dkt. # 89-92). Dkt. # 93. Those

13 documents are PMA’s reply and two supporting declarations, as well as a motion to
14 clarify that the court has already denied. PMA’s reply and supporting declarations were
15 properly filed. Plaintiff does not identify what contradictions exist between the
16 declarations of Ms. Starkey and her deposition. To the extent any contradictions did exist
17 and plaintiff had properly brought them to the court’s attention, the court would simply
18 review the evidence in the light most favorable to plaintiff, as is required on summary
19 judgment. Plaintiff also makes reference to a motion for sanctions. Dkt. # 93. In his
20 reply in support of a motion for continuance and leave to file a second amended
21 complaint, plaintiff requests that the court impose sanctions against Mr. Barnes who
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Plaintiff’s reference to failure to accommodate in the context of restoring his original

24 position (i.e., re-registration) is only with reference to legal authority under the FMLA, not the
25 WLAD. Dkt. # 84 (Opp’n) at 14. The court also notes that plaintiff’s own evidence

demonstrates that his request for leave was for a “personal matter,” not medical. Dkt. # 65-1 at 8

26 (Ex. 4 to Plf.’s Mot. For Partial Summ. J.).
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Neither party has requested oral argument, and this matter may be decided on the papers

27 submitted.

ORDER- 3

1 allegedly “intentionally revealed settlement information that plaintiff designated as
2 ‘confidential.’” Dkt. # 81 at 2. Plaintiff has not produced any evidence of sanctionable
3 conduct. Accordingly, plaintiff’s motion to strike and request for sanctions is DENIED.
4 Plaintiff has also moved to strike personal notes of Mr. Schwendeman and a letter from
5 an EEOC investigator, despite the fact that plaintiff relied on these documents in his
6 original motion. Dkt. # 64. Since the court has not relied on any of this evidence for
7 purposes of resolving these motions, the court need not resolve this motion as it has not
8 considered such evidence.
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PMA has also moved to strike the majority of plaintiff’s second declaration (Dkt.

10 # 89 (PMA reply at 4)) based on lack of personal knowledge, speculation, lay opinion,
11 legal conclusions, inadmissible hearsay, and the best evidence rule. The court agrees.
12 The court has disregarded those portions of plaintiff’s second declaration that are not
13 based on personal knowledge, are inadmissible hearsay, contain legal and factual
14 conclusions, and that violate the best evidence rule. Fed. R. Evid. 602, 701, 702, 801,
15 802, 1002.
16 B. Analysis
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Summary judgment is appropriate if there is no genuine dispute as to any material

18 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
19 56(a). The moving party bears the initial burden of demonstrating the absence of a
20 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
21 Where the moving party will have the burden of proof at trial, it must affirmatively
22 demonstrate that no reasonable trier of fact could find other than for the moving party.
23 Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). On an issue where the
24 nonmoving party will bear the burden of proof at trial, the moving party can prevail
25 merely by pointing out to the district court that there is an absence of evidence to support
26 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets
27 the initial burden, the opposing party must set forth specific facts showing that there is a

ORDER- 4

1 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby,
2 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most
3 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.
4 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). However, the court
5 need not, and will not, “scour the record in search of a genuine issue of triable fact.”
6 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also, White v. McDonnel7 Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not “speculate on
8 which portion of the record the nonmoving party relies, nor is it obliged to wade through
9 and search the entire record for some specific facts that might support the nonmoving
10 party’s claim”).
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At the summary judgment stage, in cases where plaintiff lacks direct evidence of

12 discriminatory animus, a plaintiff may establish a prima facie case under the burden13 shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4
14 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004); see Surrell v. Cal.
15 Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (applying McDonnell Douglas to §
16 1981 claims); Kastanis v. Educ. Emps. Credit Union, 122 Wash. 2d 483, 490, 859 P.2d
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18 discrimination cases that arise out of RCW 49.60.180 and the common law.”).
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Under the McDonnell Douglas framework, plaintiff must offer evidence

20 supporting a prima face case of unlawful discrimination.5 McDonnell Douglas, 411 U.S.
21 at 802. If he succeeds, the burden shifts to defendant to produce evidence of a lawful
22 motive for terminating him. Id. If defendant succeeds, plaintiff is obligated to produce
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Because Title VII of the Civil Rights Act of 1964 was the model for RCW 49.60, courts
turn to decisions interpreting the federal provision when analyzing a claim under the WLAD as
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persuasive authority. Xieng v. Peoples Nat. Bank of Washington, 120 Wn.2d 512, 518 (1993)
26 (citing Oliver v. Pacific Northwest Bell Tel. Co., 106 Wn.2d 675, 678 (1986)).
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Plaintiff agrees that the McDonnell Douglas framework is appropriate in his case. See
27 Dkt. # 65 (MSJ against PMA) at 10.

ORDER- 5

1 evidence that defendant’s stated lawful motive is pretext. Id. at 804. If there is sufficient
2 evidence of pretext, the case must go to the jury. The WLAD makes it an unlawful
3 employment practice to discriminate against any person in hiring, discharge,
4 compensation or other terms or conditions of employment because of disability, among
5 others. RCW 49.60.180. Section 1981 prohibits racial discrimination in the making and
6 enforcement of private contracts. 42 U.S.C. § 1981.
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A prima facie case of employment discrimination alleging disparate treatment has

8 four elements: (1) the employee is a member of a protected class, (2) the employee is
9 qualified for the employment position or performing substantially equal work, (3) the
10 employee suffered an adverse employment action, and (4) similarly situated employees
11 not in plaintiff’s protected class received more favorable treatment.6 Kang v. U. Lim Am.,
12 Inc., 296 F.3d 810, 818 (9th Cir. 2002); Davis v. West One Auto. Group, 140 Wn. App.
13 449, 459, 166 P.3d 807 (2007); see also Surrell, 518 F.3d at 1105-06 (section 1981). In
14 opposing summary judgment, an employee’s evidentiary burden in establishing a prima
15 facie case is not onerous. Aragon, 292 F.3d at 659 (The “requisite degree of proof
16 necessary to establish a prima facie case for Title VII … on summary judgment is
17 minimal and does not even need to rise to the level of a preponderance of the evidence.”)
18 (emphasis in original).
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Plaintiff has not offered any direct evidence of discriminatory intent by either

20 ILWU or PMA. The evidence he did provide is woefully insufficient to qualify as direct
21 evidence. Plaintiff’s evidence consists of various doctors’ notes or evaluations regarding
22 his use of drugs and alcohol, his own requests for leave of absence and for the 14-99
23 program, the arbitration hearing transcript, Ms. Starkey’s deposition testimony, and his
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In the discharge context, courts have identified the second factor as plaintiff performing

26 his job satisfactorily and the fourth factor as plaintiff being replaced by an individual outside the
protected class. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (ADEA);

27 Hill, 144 Wash. 2d at 188 (age discrimination under WLAD and RCW 49.44.090).

ORDER- 6

1 own declaration. None of these pieces of evidence provide direct evidence of
2 discriminatory intent by PMA or ILWU based on race or disability. Plaintiff’s opinion or
3 perception of defendant’s conduct is not evidence of discriminatory intent. Additionally,
4 Ms. Starkey’s testimony that she received medical documentation from plaintiff stating
5 that he was medically disabled, but refused to accept it because of his incarceration
6 indicates that the motivation of the denial was due to his incarceration, not his disability. 7
7 Accordingly, plaintiff must make out a prima facie case pursuant to McDonnell Douglas.
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With respect to his section 1981 claim, plaintiff would have had to present

9 evidence, in addition to the other elements, that similarly situated individuals who were
10 not African-American were treated more favorably in the deregistration process. Plaintiff
11 has not presented any such evidence. Rather, PMA’s evidence demonstrates that all
12 individuals who were incarcerated (regardless of race) were deregistered for
13 unavailability. Dkt. # 60 (Third Weber Decl.) ¶¶ 4-6.
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With respect to the WLAD disability discrimination claim, plaintiff would have

15 had to present evidence, in addition to the other elements, that similarly situated
16 individuals who did not have a disability were treated more favorably in the re17 registration process. Plaintiff has failed to produce any such evidence. Rather, the
18 undisputed evidence in the record demonstrates that one of the requirements to be re19 registered through the “14-99”8 procedures is that the deregistration must have been
20 caused by drug or alcohol dependency. Dkt. # 55 (Williams Decl.) ¶ 10, Ex. F; Dkt. # 60
21 (Third Weber Decl.) ¶ 3. Thus, every individual who was re-registered through the “1422
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The court notes that there is no evidence with respect to the timing of when Ms. Starkey

24 received this medical documentation. The documentary evidence in the record suggests that the
25 “medical documentation” arrived after his incarceration, and only referenced his psychiatric
diagnoses, not his drug or alcohol use. Dkt. # 65-1 at 51-54 (Exs. 6-7 to Plf.’s MSJ against

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The “14-99” program aims at helping longshore workers who were deregistered due to a

27 drug or alcohol-related cause to be re-registered. Dkt. # 55 (Williams Decl.) ¶ 10, Ex. F.

ORDER- 7

1 99” program presumably shared the same protected group that plaintiff claims: disability
2 based on drug or alcohol dependency. Accordingly, plaintiff has failed to meet his
3 burden in providing a prima facie case of disability discrimination. Additionally, to the
4 extent that plaintiff attempts to recast his disability discrimination claim as a “failure to
5 accommodate” in the process of re-registration, plaintiff’s own evidence demonstrates
6 that he did not request “medical leave” for the period of his incarceration, but rather
7 requested a leave of absence for a “personal matter” from December 20, 2007 until
8 September 1, 2008. Dkt. # 65-1 at 8 (Ex. 4 to Plf.’s MSJ against PMA).
9 C. Conclusion
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For all the foregoing reasons, the court GRANTS defendants’ motions for

11 summary judgment (Dkt. ## 52, 57) and DENIES plaintiffs’ motions for summary
12 judgment (Dkt. ## 49, 65). The court has also DENIED plaintiff’s motion to strike
13 above. Dkt. # 93. Accordingly, the only remaining motion on the court’s docket is
14 plaintiff’s motion to direct the parties to pro bono mediation. Dkt. # 99. Since the court
15 has granted defendants’ motions for summary judgment and dismissed all of plaintiff’s
16 claims, the court DENIES this motion. The Clerk is DIRECTED to enter judgment in
17 favor of defendants and against plaintiff.
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The Clerk is also DIRECTED to SEAL the following documents because of the

19 personal identifying information and photographs of non-party individuals that are
20 attached to the Third Weber Declaration: Dkt. # 60-1 at 10-14 (Ex. C); # 60-2 at 2 (Ex.
21 H), at 4 (Ex. I), at 6 (Ex. J), at 34 (Ex. M). The Clerk is also DIRECTED to SEAL
22 Exhibit C to the Fourth Weber Declaration and Exhibits B and C to the Fifth Weber
23 Declaration for the same reasons. Dkt. # 86 at 18 (Ex. C); Dkt. # 90 at 11, 16. (Exs. B,
24 C). The court notes that in order to seal parts of a particular docket number, the clerk
25 must seal the entire docket entry. Accordingly, the Clerk is ORDERED to seal Dkt. # 6026 1, # 60-2, # 86, and # 90. PMA is ORDERED to file redacted versions of these
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ORDER- 8

1 documents consistent with the exhibits identified above within fourteen days of this
2 order.
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Finally, the court notes that Mr. Demmings has filed a new case against PMA and

4 ILWU Benefit Plans Office that is currently pending before the undersigned. Case No.
5 C13-5737-RAJ. To the extent the court’s orders in this case apply to any of the claims
6 alleged in the new case, the parties are expected to advise the court accordingly.
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Dated this 24th day of September, 2013.

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The Honorable Richard A. Jones
United States District Judge

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ORDER- 9