Rahman v. American Tire Distributor Inc et al

Filing 176

ORDER granting Defendants' 132 Motion for Summary Judgment; granting Defendants' 160 Motion to Strike; Plaintiff's 165 motion for leave to file an overlength response is GRANTED in part as to the documents that were timely filed on September 22, 2014. It is denied as to Dkt. # 159 and # 162 , however: those documents were untimely filed and have not been considered, by Judge Robert S. Lasnik.(TM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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SHAW RAHMAN,
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Plaintiff,
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v.
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AMERICAN TIRE DISTRIBUTOR, INC.,
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et al.,
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Defendants.
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_______________________________________)

No. C13-0410RSL
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

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This matter comes before the Court on “Defendants American Tire Distributors,
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Inc. and Anjani Gali’s Motion for Summary Judgment.” Dkt. # 132.1 Plaintiff has asserted

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claims of national origin harassment and discrimination, religious discrimination, and retaliation
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against defendants American Tire Distributors (“ATD”) and Anjani Gali.
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In February 2012, ATD requested that defendant Mastech, Inc., an information
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technology (“IT”) staffing company, recruit an IT professional to assist in the development of a
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Plaintiff’s thirty-one page, single-spaced response memorandum and 300+ pages of exhibits
(Dkt. # 147) have been considered in ruling on defendants’ motion for summary judgment. Plaintiff’s
belated motion for leave to file an overlength response (Dkt. # 165) is therefore GRANTED in part as to
the documents that were timely filed on September 22, 2014. After defendants filed their reply
memorandum, however, plaintiff continued to file documents purporting to have some relationship to
the pending motion. Plaintiff has withdrawn Dkt. # 157 and the Court has not considered it. See Dkt.
# 167 and # 168. Plaintiff’s other submissions, specifically Dkt. # 159 and # 162, were untimely,
deprived defendants of their opportunity to respond, and have not been considered. Defendants’ motion
to strike (Dkt. # 160) as to those documents is therefore GRANTED.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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new platform to grow and expand ATD’s on-line business. Mastech contacted plaintiff to see if
he would be interested in the assignment with ATD. Following an interview with Ms. Gali,
ATD’s Chief Technology Officer, ATD offered plaintiff a position. Mastech hired plaintiff as
an at-will employee and assigned him to work for ATD. Mastech and plaintiff agreed to give
each other two weeks’ notice of termination “except in cases due to your willful misconduct or
non-performance, [or] in the event that a Client requests your removal for any reason . . . .”
Dkt. # 129-6 at 2.
Plaintiff began his assignment with ATD on March 5, 2012. Within ten days,
plaintiff’s immediate supervisor at ATD, Armond Aghabegian, became concerned about a lack
of progress on the tasks plaintiff had been assigned on his first day of work and began requesting
timetables and status updates. Mr. Aghabegian was not impressed with plaintiff’s response:
plaintiff was not particularly forthcoming about when tasks would be completed, and some of
the product that was generated was deemed “terrible.” Dkt. # 133 at 21. Ms. Gali shared Mr.
Aghabegian’s concerns about plaintiff’s ability to perform the job for which he was hired: he
had made a recommendation regarding hosting options with which Ms. Gali disagreed and
which led her to believe that he did not understand the hosting environment or what needed to be
hosted where. On March 22, 2012, Ms. Gali received information showing that plaintiff ran
analytics on ATD’s live website, rather than on the new site. The monitoring activity was not
only against ATD policy, but could have crashed the company’s website. Ms. Gali decided to
terminated plaintiff’s assignment with ATD that evening, and told him of the decision when he
arrived at work on March 23, 2012. Mastech subsequently terminated his employment without
providing two weeks’ notice.
Plaintiff maintains that he was making progress on his initial assignments, that he
was always responsive to Mr. Aghabegian’s requests, that he did not monitor ATD’s live
website, and that ATD made it difficult for him to complete his assignments in a timely manner.
He does not, however, cite to evidence that supports these arguments. The documents provided
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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by the parties suggest that plaintiff’s responses to Mr. Aghabegian’s emails did not provide
much of the information requested, that, as of March 22, 2012, plaintiff had accomplished only a
few of the initial assignments (assignments that ATD thought would take a qualified IT
professional only a matter of days), and that some of plaintiff’s substantive work was
unsatisfactory. Plaintiff has not produced any evidence in support of his many conclusory
assertions that he was “scapegoated” or that “ATD was liable for any missed deadlines although
Plaintiff executed all his tasks with his level of efforts, in deliverable within the time frame even
after having hindrance and non cooperation from ATD’ Angajin gali and her fellow
subordinates, unlawfully.” Dkt. # 147 at 7 (no changes made to the original). What information,
access, or guidance plaintiff needed from ATD, when and how he requested it, and ATD’s
responses thereto are unstated. Whatever the root cause of plaintiff’s inability to get through the
initial list of assignments, he failed to perform the job for which he was hired on a schedule and
in a manner that was acceptable to ATD.
Plaintiff argues that ATD’s unhappiness with his performance was really just a
pretext for national origin and/or religious discrimination. There is no evidence, however, that
any person involved in hiring, supervising, or terminating plaintiff’s employment knew, much
less harbored animosity about, his national origin or religion. During his eighteen day
employment with ATD, plaintiff can identify only three instances in which coworkers
acknowledged that plaintiff was from Bangladesh and one coworker who apparently knew he
was Muslim. Dkt. # 129-3 at 33-38. The three comments involved distinctions between the
citizenship laws of India and Bangladesh, cricket rivalries, and the fact that although plaintiff
“looks like an Indian, he’s not an Indian.” Plaintiff argues that these comments created a hostile
working environment and suggests that they evidenced an underlying discriminatory
environment against non-Indians at ATD.
For purposes of plaintiff’s hostile work environment claim, plaintiff has identified
statements related to his national origin and the Court will assume that what appear to be
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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innocuous factual comments and/or the raving of sports fans were said in such a way that
plaintiff found them to be unwelcome. Nevertheless, no reasonable jury could find that those
three comments between coworkers were sufficiently severe or pervasive enough to alter the
conditions in which plaintiff was employed or to create an abusive work environment. See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (evaluating frequency, severity, and nature
of harassing conduct as well as its effect on the employee’s work performance). Plaintiff’s
hostile work environment claim fails as a matter of law.
Plaintiff’s disparate treatment claims also fail. Plaintiff bears the initial burden of

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raising an inference of unlawful discrimination. While the Court seriously doubts that plaintiff
can raise such an inference given the lack of evidence that Ms. Gali was aware of plaintiff’s
national origin or religion, the Court will assume that plaintiff has established a prima facie case
of discrimination. Defendants have come forward with a legitimate, nondiscriminatory reason
for his termination: that plaintiff was not performing at the level ATD and Ms. Gali expected
when they sought out and hired an IT professional. Thus, the presumption of unlawful
discrimination “simply drops out of the picture,” and plaintiff bears the ultimate burden of
persuading the factfinder that the stated reason for the discharge was false or that the true reason
for the discharge was unlawful national origin and/or religious discrimination. St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 509, 511 (1993); Noyes v. Kelly Servs., 488 F.3d 1163, 1170-71 (9th Cir.
2007).
Plaintiff has produced no meaningful or specific evidence suggesting that
defendants were not dissatisfied with his performance (i.e., that their proffered explanation for
the termination was false). The fact that plaintiff feels his performance was satisfactory or that
any defects could be justified does not raise a genuine issue of material fact at this stage of the
analysis: an employee’s subjective personal judgment of his competence, standing alone, does
not establish falsity or pretext. Schuler v. Chronicle Broadcasting Co., Inc., 793 F.2d 1010,
1011 (9th Cir. 1986). Nor has plaintiff raised an inference that Ms. Gali harbored discriminatory
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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animus towards him because he was from Bangladesh and/or is Muslim. There is no direct
evidence of discriminatory intent, and the only indirect evidence is that Ms. Gali fired a member
of a protected class. The prima facie case has been rebutted, however: simply arguing that
plaintiff’s termination must have been motivated by unlawful discrimination because he is a
member of a protected class is not enough where the employer has come forward with a
legitimate, nondiscriminatory reason for the termination. In addition, an inference of
discriminatory intent is wholly unwarranted here. Ms. Gali, the person who terminated
plaintiff’s assignment with ATD, is the same person who originally made the decision to hire
him less than a month earlier. In this context, plaintiff’s unsupported assertion that Ms. Gali
wanted a non-Muslim or an Indian in the position is mere speculation. “[C]laims that employer
animus exists in termination but not in hiring seem irrational. From the standpoint of the
putative discriminator, it hardly makes sense to hire workers from a group one dislikes (thereby
incurring the psychological costs of associating with them), only to fire them once they are on
the job.” Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991). Far from bearing his burden of
raising a reasonable inference that the stated reason for the discharge was false or that the true
reason for the discharge was unlawful national origin and/or religious discrimination, the facts of
this case raise a strong inference that there was no discriminatory motive. Bradley v. Harcourt,
Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996). Defendants are therefore entitled to
judgment as a matter of law on plaintiff’s disparate treatment claims.
Plaintiff has failed to identify any protected activity in which he engaged prior to
his termination. Plaintiff’s refusal to perform tasks as requested by ATD and/or his efforts to
enforce what he deemed his “scope of work” are not protected activities for purposes of a
retaliation claim under Title VII. Because plaintiff did not engage in any conduct in opposition
to perceived discrimination, his retaliation claim fails as a matter of law.
Plaintiff’s complaint cannot fairly be read to assert a separate breach of contract
claim against ATD or Ms. Gali: the complaint specifies only the causes of action identified
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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above. Dkt. # 1-1 at 2. To the extent the various exhibits attached to the complaint mention a
breach of contract, it is in the context of describing defendants’ alleged discriminatory acts.
Even if the Court were to assume that plaintiff intended to assert a separate breach of contract
claim, the claim would fail as a matter of law. The two week notice provision in the contract
plaintiff had with Mastech was inapplicable because ATD requested that plaintiff’s work on the
project be terminated for failure to perform. Plaintiff has not established the existence of any
contract with ATD, much less one that limited the “scope of work” he would perform while
assigned to ATD.2

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For all of the foregoing reason, defendants’ motion for summary judgment (Dkt.

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# 132) is GRANTED. All remaining claims are hereby DISMISSED. Plaintiff’s motion for
leave to file an overlength response (Dkt. # 165) is GRANTED in part as to the documents that
were timely filed on September 22, 2014. It is denied as to Dkt. # 159 and # 162, however:
those documents were untimely filed and have not been considered. Defendants’ motion to
strike (Dkt. # 160) is GRANTED. The Clerk of Court is directed to enter judgment in favor of
defendants and against plaintiff.

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Dated this 17th day of November, 2014.

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A
Robert S. Lasnik

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United States District Judge

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Plaintiff has not properly alleged claims under the Thirteenth Amendment to the United States
Constitution or the Sarbanes-Oxley Act. A motion to add such claims would be denied as both untimely
and futile.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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