Trizuto v. Bellevue Police Department et al

Filing 43

ORDER granting in part and denying in part dfts' 30 Motion for Summary Judgment; granting in part and denying in part dfts' 9 Motion to Dismiss for Failure to State a Claim by Judge Richard A Jones.(RS)

HONORABLE RICHARD A. JONES

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

JAN M. TRIZUTO,
Plaintiff,

10
11
12

CASE NO. C13-479RAJ
v.
ORDER
BELLEVUE POLICE DEPARTMENT, et
al.,

13

Defendants.

14
I. INTRODUCTION

15
16
17
18
19

This matter comes before the court on a motion to dismiss and a motion for
summary judgment from Defendants. No one requested oral argument, and the court
finds oral argument unnecessary. For the reasons stated herein, the court GRANTS in
part and DENIES in part Defendants’ motion to dismiss (Dkt. # 9) and GRANTS in part
and DENIES in part their motion for summary judgment (Dkt. # 30).

20
21
22
23
24
25
26

II. BACKGROUND

Jan Trizuto began working as an officer in the Bellevue Police Department
(“BPD”) in November 2007. After basic training, she began a series of on-the-jobtraining exercises in which she rode along with a field training officer. In May 2008,
BPD assigned Officer Brad Knudtsen as her field training officer. They worked eleven
shifts together from late May until mid-June 2008. During that time, Officer Knudtsen
made sexually explicit comments, revealed personal information, and otherwise made

27
28

ORDER – 1

1

Officer Trizuto uncomfortable. Officer Trizuto did not report the comments to her

2

superiors. She worked another shift with Officer Knudtsen in December 2008 in

3

response to a snow emergency, and he again made unwelcome personal comments. She

4

did not report him. She also did not report unwelcome text messages that Officer

5

Knudtsen sent her in February and March 2009.

6

Lieutenant Daniel Young supervised Officer Trizuto from the completion of her

7

field training in October 2008 until January 2009, and became her squad leader in

8

January 2010. In 2009, her supervisor was Lieutenant Mark Tarantino. At least in part

9

because of two on-the-job incidents in 2009 (one which resulted in a formal reprimand,

10

and one which resulted in a 20-hour suspension), Lieutenant Tarantino placed her on a

11

performance improvement plan as part of Officer Trizuto’s 2009 annual review. When

12

Lieutenant Young became her supervisor in January 2010, he became responsible for

13

ensuring she met the terms of the performance improvement plan, although no one

14

suggests he had any role in imposing it in the first place.

15

The evidence permits many inferences regarding Officer Trizuto’s relationship

16

with Lieutenant Young in the first half of 2010. Officer Trizuto characterizes Lieutenant

17

Young as “sometimes overly harsh,” but well-intentioned. Trizuto Decl. (Dkt. # 35) ¶ 8.

18

She contends among other things that he was reasonable in administering her

19

performance improvement plan. In any event, Officer Trizuto does not allege that

20

Lieutenant Young did anything unlawful in the first half of 2010.

21

In April and May of 2010, Officer Trizuto revealed Officer Knudtsen’s

22

unwelcome comments in conversations with Corporal Sean Sehlin and Lieutenant Dan

23

Mathieu. She first told Lieutenant Mathieu. Trizuto Decl. (Dkt. # 35) ¶ 9. Lieutenant

24

Mathieu apparently recognized that BPD policy required him to report Officer

25

Knudtsen’s conduct to a superior. Officer Trizuto asked him not to report it. Id. In late

26

May, she “vented” to Corporal Sehlin after having been “chewed out” by Lieutenant

27

Young on three occasions for unspecified reasons. Id. ¶ 10. In the same conversation,

28

ORDER – 2

1

she also revealed Officer Knudtsen’s past conduct. Id. Corporal Sehlin, like Lieutenant

2

Mathieu, recognized that BPD policy required him to report her allegations regarding

3

Officer Knudtsen. Id. Again, Officer Trizuto requested that he not make a report. Id.

4

Both Lieutenant Mathieu and Corporal Sehlin reported Officer Trizuto’s

5

allegations up the chain of command. BPD began a formal investigation immediately,

6

and removed Lieutenant Young from supervising Officer Trizuto’s squad. Lieutenant

7

Young’s unchallenged account of his removal reveals that BPD initially notified him that

8

Officer Trizuto had accused him of harassment. Young Decl. (Dkt. # 31) ¶ 11. He

9

recalls that BPD also informed him that Officer Trizuto had “complaints of a sexual

10

harassment nature” against another officer. Id. No one told him that the officer accused

11

of sexual harassment was Officer Knudtsen, and he contends that he did not learn that

12

fact until “much later.” Id. ¶¶ 11-12. Lieutenant Young believes that BPD discovered

13

early in its investigation that Officer Trizuto had not accused him of harassment, leading

14

to his quick reinstatement as squad leader on July 2. Id. ¶ 13. Everyone appears to

15

concede that Lieutenant Young’s removal was either the result of a miscommunication or

16

an excess of bureaucratic caution. There is no allegation that Lieutenant Young bore

17

Officer Trizuto any ill will as a result of his brief removal from the squad.

18
19

A day after he returned as squad leader, Lieutenant Young reported that Officer
Trizuto had successfully completed her performance improvement plan.

20

According to Officer Trizuto, her relationship with Lieutenant Young changed

21

beginning in late August 2010. She contends that Lieutenant Young began “singling

22

[her] out[,] complaining about even the smallest of perceived inadequacies, humiliating

23

[her] in front of her co-workers, and threatening [her] with formal reprimands.” Trizuto

24

Decl. (Dkt. # 35) ¶ 15(g). She identified three specific incidents. In late August, he

25

“yelled at and berated” her following her response to a shooting incident at a local store.

26

Id. ¶ 18. In early September, he confronted Officer Trizuto and two other officers

27

regarding their performance when they worked together on calls. Id. ¶ 19. About a week

28

ORDER – 3

1

later, he confronted her at the station after she unilaterally decided to work on September

2

11 when Lieutenant Young had scheduled her to be off. Id. ¶ 25. The confrontation

3

began in front of her follow officers, and continued inside Lieutenant Young’s office. Id.

4

The day after this final confrontation, Officer Trizuto reported to a superior her

5

belief that Lieutenant Young was retaliating against her because of her accusations

6

against Officer Knudtsen. She believes that Lieutenant Young and Officer Knudtsen are

7

friends. After Officer Trizuto made her retaliation complaint, BPD quickly removed

8

Lieutenant Young from supervising her squad, and he has not supervised her since.

9

Lieutenant Carl Kleinknecht took over supervision of Officer Trizuto’s squad after

10

BPD removed Lieutenant Young. As part of Officer Trizuto’s performance review for

11

the second half of 2010, Lieutenant Young submitted a memo to Lieutenant Kleinknecht

12

with his evaluation of Officer Trizuto from July 2010 until BPD transferred him away

13

from her squad in mid-September. Young Decl. (Dkt. # 31), Ex. E. He reported several

14

of incidents of misconduct, including her decision to work a shift for which she was not

15

scheduled, her questionable decisions in the August shooting incident, and conduct

16

during a response to a child custody dispute. Id. He also reported that she had received

17

favorable feedback for her work on several occasions. Id. Lieutenant Kleinknecht

18

nonetheless gave her a “meets standards” review. Id., Ex. D. Lieutenant Kleinknecht

19

generally evaluated her performance favorably.

20

Officer Trizuto also believes that others at the BPD have engaged in retaliatory

21

conduct. She complains that BPD interviewed her three times regarding her allegations

22

against Officer Knudtsen. Trizuto Decl. (Dkt. # 35) ¶ 15(g). She contends that BPD

23

scheduled those interviews during her shifts, and that she was forced to take personal

24

leave to attend the interviews. Id. BPD has submitted unchallenged evidence that it

25

eventually restored that leave to her. She has no other specific allegation of misconduct

26

connected with the interviews during the Knudtsen investigation. Officer Trizuto

27
28

ORDER – 4

1

complains that BPD conducted its investigatory interview of her following her complaint

2

against Lieutenant Young as an “ambush,” again causing her distress. Id. ¶ 27.
BPD concluded the Knudtsen investigation in December 2010. It issued a written

3
4

reprimand concluding that Officer Knudtsen had acted inappropriately, imposed a 60-

5

hour suspension without pay, and warned him that he would be fired if he engaged in

6

additional misconduct.
BPD’s investigation into Officer Trizuto’s allegation of retaliation against

7
8

Lieutenant Young resulted in no discipline. Lieutenant Young has not supervised Officer

9

Trizuto since September 2010, but BPD has not assured her that Lieutenant Young will

10

never supervise her. Officer Trizuto perceives that Lieutenant Young still carries a

11

grudge, and she believes that he has complained to her fellow officers (including her

12

superiors) regarding her performance on a number of occasions in 2012 and 2013.

13

Officer Trizuto sued Lieutenant Young and BPD. 1 She contends that both

14

Defendants are liable for violating the anti-retaliation provisions of the Washington Law

15

Against Discrimination (“WLAD”) and Title VII of the Civil Rights Act of 1964. RCW

16

49.60.210; 42 U.S.C. § 2000e-5. She also invokes 42 U.S.C. § 1983, contending that

17

both Defendants are liable for violations of the First and Fourteenth Amendments.

18

Finally, she claims that both are liable for intentional and negligent infliction of

19

emotional distress.
Defendants jointly filed a motion to dismiss several of her claims, then filed a

20
21

motion for summary judgment against her remaining claims. The court now considers

22

each motion.

23
24
25
26

1

27

Officer Trizuto sued the City of Bellevue as well, but merely in its capacity as the
governmental unit in which BPD is embedded. For simplicity, the court refers to BPD as the
sole municipal entity defendant.

28

ORDER – 5

III. ANALYSIS

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

A.

Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a motion to

dismiss for failure to state a claim on which the court can grant relief. Harris v. County
of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires the court to
assume the truth of the complaint’s factual allegations and credit all reasonable inferences
arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The
plaintiff must point to factual allegations that “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds,
the complaint avoids dismissal if there is “any set of facts consistent with the allegations
in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009) (“When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.”). The court typically cannot consider evidence beyond the four
corners of the complaint, although it may rely on a document to which the complaint
refers if the document is central to the party’s claims and its authenticity is not in
question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The court may also
consider evidence subject to judicial notice. United States v. Ritchie, 342 F.3d 903, 908
(9th Cir. 2003).
1.

A plaintiff who invokes Title VII must exhaust administrative remedies through
the Equal Employment Opportunity Commission (“EEOC”). Sommatino v. United
States, 255 F.3d 704, 708 (9th Cir. 2001). To exhaust her remedies, a plaintiff typically
must file a complaint with the EEOC. If the EEOC’s investigation of the complaint
results in a so-called “right to sue” letter, the plaintiff has 90 days from the receipt of that
letter to file suit. Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1445 (9th Cir.
1990); 42 U.S.C. § 2000e-5(f)(1). The 90-day deadline is not a limit on the court’s

27
28

Officer Trizuto’s Title VII Claim is Untimely.

ORDER – 6

1

subject matter jurisdiction, it is a statute of limitations subject to equitable tolling, waiver,

2

and estoppel. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008).
Officer Trizuto does not challenge Defendants’ assertion that she received a right-

3
4

to-sue letter from the EEOC on October 17, 2012. She sued on March 1, 2013, more than

5

90 days later. She contends, however, that her filing of a pre-suit claim with the City of

6

Bellevue on December 18, 2012 tolled the limitations period for 60 days.
Washington law requires a plaintiff suing a unit of local government or a local

7
8

government officer to file a pre-suit claim with a designated government agent.

9

RCW 4.96.020(2). The statute prohibits a plaintiff from filing any “action subject to the

10

claim filing requirements” until 60 days have passed following submission of the claim.

11

RCW 4.96.020(4). It provides, however, that “the applicable period of limitations within

12

which an action must be commenced shall be tolled” for 60 days following submission of

13

the claim. Id.
The court holds that the tolling provision of RCW 4.96.020 does not apply to

14
15

Officer Trizuto’s Title VII claim. Every Washington federal court to consider the issue

16

has rejected application of the tolling provision of RCW 4.96.020 to Title VII’s statute of

17

limitations. E.g., Kast v. Royal Sch. Dist., No. C13-32RHW, 2013 U.S. Dist. LEXIS

18

73455, at *4-5 (E.D. Wash. May 23, 2013); Adams v. Dep’t of Corr., No. C08-15RSM,

19

2008 U.S. Dist. LEXIS 98457, at *4-6 (W.D. Wash. Dec. 3, 2008). So far as the court is

20

aware, every district court within the Ninth Circuit has reached the same conclusion

21

regarding any state-law tolling provision. E.g., Ungureanu v. A. Teichert & Son, No.

22

CIV S-11-316 LKK GGH, 2012 U.S. Dist. LEXIS 46440, at *11-12 (E.D. Cal. Apr. 2,

23

2012) (report and recommendation). The Ninth Circuit itself has never addressed the

24

issue in a published decision. 2 So far as the court is aware, every federal court of appeals

25

2

27

In an unpublished 1999 decision, the Ninth Circuit held that the tolling provision of
RCW 4.92.100 does not toll the statute of limitations for a Title VII claim. Because the Ninth
Circuit prohibits litigants before it from citing older unpublished decisions, the court will not cite
the decision either. See 9th Cir. Local Rule 36-3(c).

28

ORDER – 7

26

1

who has addressed the issue has rejected application of state-law tolling provisions to

2

Title VII claims. E.g., Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir.

3

1991) (“When Congress has provided a federal statute of limitation for a federal claim,

4

however, state tolling and saving provisions are not applicable.”); Garrison v. Int’l Paper

5

Co., 714 F.2d 757, 759 n.2 (8th Cir. 1983). Other federal courts of appeals have upheld

6

the more general proposition that state tolling statutes have no impact on federal claims

7

for which Congress has provided a statute of limitations. E.g., Beck v. Caterpillar Inc.,

8

50 F.3d 405, 407 (7th Cir. 1995); Davis v. Smith’s Transfer, Inc., 841 F.2d 139, 140 (6th

9

Cir. 1988). If there is any authority permitting the application of a state-law tolling

10

provision to any federal statute of limitations, Officer Trizuto has not cited it and the

11

court is not aware of it. Officer Trizuto misses the mark in citing this court’s decision in

12

Wyant v. City of Lynnwood, 621 F. Supp. 2d 1108 (W.D. Wash. 2008). There, the court

13

applied the tolling provision of RCW 4.96.020 to a 42 U.S.C. § 1983 claim. Critical to

14

that decision was that Congress has provided no statute of limitations for § 1983 claims,

15

and federal courts thus look to state law for limitations periods and tolling provisions.

16

621 F. Supp. 2d at 1110-11; see also Brown, 926 F.2d at 962 (distinguishing Title VII

17

claim from § 1983 claim). The Wyant decision says nothing about the applicability of

18

state tolling provisions to federal statutes of limitations.

19

Although Officer Trizuto’s Title VII claim is untimely, she argues that BPD is

20

estopped from raising a statute of limitations defense. As the court has noted, Title VII’s

21

statute of limitations is subject to equitable tolling and equitable estoppel. Equitable

22

tolling is not available to Officer Trizuto, because that doctrine focuses on the plaintiff’s

23

excusable ignorance of the existence of a claim during the filing period. Leong v. Potter,

24

347 F.3d 1117, 1123 (9th Cir. 2003). Officer Trizuto cannot claim she was unaware she

25

had a retaliation claim. Equitable estoppel “focuses on the defendant’s wrongful actions

26

preventing the plaintiff from asserting his claim.” Id. Officer Trizuto contends that the

27

City of Bellevue acted wrongfully by using its municipal code to impose a pre-suit claim

28

ORDER – 8

1

requirement for every “claim for damages against the city and/or its officers.” Bellevue

2

City Code (“BCC”) § 4.36.040. The municipal code prohibits a plaintiff from filing suit

3

until 60 days pass after submitting a claim. BCC § 4.36.050. It provides that a pre-suit

4

claim tolls any applicable period of limitations for 60 days. Id.

5

The court will not equitably estop BPD from relying on Title VII’s statute of

6

limitations. Bellevue knew (or unquestionably should have known) that its pre-suit claim

7

requirement has no application to federal claims, 3 yet its City Code purports to require a

8

pre-suit claim in every action for damages without exception. By comparison, the

9

analogous Washington law at least suggests the possibility that there are some actions to

10

which it does not apply. RCW 4.96.020(4) (“No action subject to the claim filing

11

requirements of this section shall be commenced…”) (emphasis added). On the other

12

hand, the same well-established law that would have notified Bellevue that its pre-suit

13

claim requirement was invalid as applied to federal claims would have apprised Officer

14

Trizuto’s counsel as well. Courts typically apply equitable estoppel where a defendant’s

15

affirmative conduct prevents a plaintiff from filing suit. E.g. Santa Maria v. Pacific Bell,

16

202 F.3d 1170, 1176 (9th Cir. 2000) (“[E]quitable estoppel comes into play if the

17

defendant takes active steps to prevent the plaintiff from suing in time . . .”) (citation

18

omitted). Bellevue took no “active steps” here. Officer Trizuto points to Bellevue’s

19

municipal website, which encourages plaintiffs to file pre-suit claims to facilitate

20

settlement in appropriate cases. The court finds nothing misleading about the statements

21

on the website. Bellevue’s municipal code is at least potentially misleading as to the

22

applicability of its pre-suit claim requirement and its tolling provision, but that alone does

23

not justify equitable estoppel.

24
25

3

27

In Wyant, for example, the court cited authority establishing that state pre-suit notice
requirements apply neither to federal claims asserted in federal court nor federal claims asserted
in state court. 621 F. Supp. 2d at 1111 (citing Felder v. Casey, 487 U.S. 131, 140-41, 153
(1988), Wright v. Terrell, 170 P.3d 570, 571 (Wash. 2007)).

28

ORDER – 9

26

1

So far as the court is aware, no court has held that a potentially misleading

2

statement about tolling in a municipal code or state law is a basis for equitable estoppel.

3

If courts reached that conclusion as a matter of course, they would effectively undo the

4

precedent the court has already cited that bars the application of state tolling provisions to

5

federal statutes of limitation. The court will not rule out the possibility that there are

6

circumstances in which it would apply equitable estoppel where local law induces a

7

plaintiff to delay filing a claim with an empty promise to toll the statute of limitations. In

8

this case, Officer Trizuto’s counsel should have known that neither Washington’s nor

9

Bellevue’s pre-suit claim provisions applied to her Title VII claim. The court will not

10

equitably estop Defendants from relying on the statute of limitations. Officer Trizuto’s

11

Title VII claim is untimely as a matter of law.

12
13
14
15
16

2.

Title VII Does Not Permit the Imposition of Liability on Lieutenant
Young.

Even if Officer Trizuto had timely filed her Title VII claim, that claim would not
stand against Lieutenant Young. Title VII does not impose liability on employees, even
supervisory employees; it imposes liability solely on employers. Miller v. Maxwell’s
Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993).

17
18
19
20
21
22
23
24
25

3.

Officer Trizuto’s invocation of the Fourteenth Amendment is confounding. She
asserts that by “treating Plaintiff less favorably because she is a female, defendants
denied Plaintiff her basic Fourteenth Amendment right to equal protection and to be free
from retaliation for making a sexual harassment claim pursuant to the United States
Constitution.” Compl. ¶ 5.3. Nothing in her complaint, however, describes an instance
in which any Defendant treated her “less favorably because she is a female.” Officer
Knudtsen might have done so, but he is not a Defendant. No one could read Officer
Trizuto’s complaint and find that it plausibly alleges gender discrimination. Her

26
27
28

Officer Trizuto Pleads No Violation of the Fourteenth Amendment.

ORDER – 10

1

complaint describes retaliation by Defendants, but the Fourteenth Amendment confers no

2

right to be free from retaliation.

3

The court dismisses Officer Trizuto’s Fourteenth Amendment § 1983 claim with

4

prejudice. Although she has requested leave to amend, nothing about her request

5

suggests that she can state a Fourteenth Amendment claim.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

4.

Defendants’ motion to dismiss does not challenge that Officer Trizuto has
adequately pleaded a § 1983 claim that Lieutenant Young violated her First Amendment
rights by retaliating against her for complaining about workplace harassment. Instead, it
challenges her assertion that BPD can be held liable. Section 1983 does not impose
respondeat superior liability on a local government unit for the wrongful act of one of its
officers. AE v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). Instead, a plaintiff
must establish that the local government unit “had a deliberate policy, custom, or practice
that was the moving force behind the constitutional violation [she] suffered.” Id. (citation
omitted). Because this rule finds its roots in Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), courts and litigants often refer to local governmental liability via § 1983 as
Monell liability.
It is doubtful that Officer Trizuto adequately pleaded a basis for Monell liability
against BPD. Her complaint contains a bare reference to BPD’s alleged “pattern and
practice of retaliating against, or allowing its employees to retaliate against, employees
who lodge formal complaints.” Compl. ¶ 4.31. Her own allegations, however, belie that
there is a BPD-wide practice of retaliating against employees who complain. Lieutenant
Young retaliated against her, she alleges, because he was a friend of Officer Knudtsen.
Once Lieutenant Kleinknecht took over supervision of her squad, she alleges that she
received fair treatment. If BPD has a department-wide policy to retaliate against officers
who lodge complaints, why did Lieutenant Young retaliate but not Lieutenant

27
28

The Court Need Not Decide Whether Officer Trizuto Adequately
Pleads that the BPD Can Be Liable Under § 1983.

ORDER – 11

1

Kleinknecht? If BPD has a department-wide policy to retaliate against officers who

2

lodge complaints, why did Lieutenant Young not begin retaliating against her as soon as

3

he learned she had filed a sexual harassment complaint against an unnamed officer? If

4

Lieutenant Young implemented a department-wide policy to retaliate, why did he give

5

Officer Trizuto a review that released her from her performance improvement plan as

6

soon as he was reinstated as her squad leader? Officer Trizuto’s complaint suggests no

7

plausible answer to these questions. It is arguably slightly more plausible that BPD has a

8

policy of permitting retaliation, but not requiring it. Even in this regard, however, Officer

9

Trizuto’s complaint leaves much to be desired. She admits that BPD removed Lieutenant

10

Young from her squad as soon as she complained of his alleged retaliation, and that he

11

has not resumed supervision of her even though BPD concluded that he did not retaliate.

12

It stretches the bounds of plausibility, to say the least, to draw an inference of a pro-

13

retaliation policy from these allegations. It stretches those bounds even further to draw

14

an inference that BPD’s alleged pro-retaliation policy impacted her.
Despite considerable skepticism about her slipshod allegations, the court need not

15
16

decide whether Officer Trizuto has adequately pleaded BPD’s § 1983 liability. Even if

17

she has adequately pleaded Monell liability, her lone remaining § 1983 claim fails for an

18

independent reason. As the court will now discuss in its review of Defendants’ summary

19

judgment motion, Officer Trizuto’s lone remaining § 1983 claim fails because she has no

20

evidence of a violation of the First Amendment.

21

B.

22

Motion for Summary Judgment
On a motion for summary judgment, the court must draw all inferences from the

23

admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred

24

Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate

25

where there is no genuine issue of material fact and the moving party is entitled to

26

judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must initially show

27

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

28

ORDER – 12

1

323 (1986). The opposing party must then show a genuine issue of fact for trial.

2

Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The

3

opposing party must present probative evidence to support its claim or defense. Intel

4

Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The

5

court defers to neither party in resolving purely legal questions. See Bendixen v.

6

Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999).

7

1.

8

To state a First Amendment retaliation claim, a government employee must show

9

§ 1983 First Amendment Retaliation

(1) that she spoke on a matter of public concern, (2) that she spoke as a private citizen

10

rather than as a public employee, (3) that her speech was a substantial or motivating

11

factor in an adverse employment action taken against her, (4) that the government actor

12

who took the adverse action had no adequate justification for treating her differently than

13

other members of the public, and (5) that the government actor would not have taken the

14

adverse employment action but for her speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th

15

Cir. 2009). A plaintiff’s failure to prove any of these elements is fatal to a First

16

Amendment retaliation claim. Dahlia v. Rodriguez, No. 10-55978, 2013 U.S. App.

17

LEXIS 17489, at *16-17 n.4 (9th Cir. Aug. 21, 2013) (en banc).

18

Officer Trizuto’s complaint about Officer Knudtsen’s sexual harassment was not

19

speech on a matter of public concern. She bears the burden to show otherwise. Eng, 552

20

F.3d at 1070. Whether speech addresses a matter of public concern is a purely legal

21

question. Id. So far as the court is aware, no court has ever held that an individual

22

employee’s internal complaint against another employee is speech on a matter of public

23

concern. Speech dealing with “individual personnel disputes and grievances” that

24

“would be of no relevance to the public’s evaluation of the performance of [a]

25

governmental agenc[y]” is generally not speech of public concern. Coszalter v. City of

26

Salem, 320 F.3d 968, 973 (9th Cir. 2003) (internal quotations from McKinley v. City of

27

Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) omitted). Often, the general subject of an

28

ORDER – 13

1

employee grievance is a matter of public concern. Racial discrimination, for example, is

2

a “matter inherently of public concern,” Connick v. Myers, 461 U.S. 138, 148 n.8 (2006),

3

and sexual harassment is as well. But an employee communication that is “not otherwise

4

of public concern does not attain that status because its subject matter could, in different

5

circumstances, have been the topic of a communication to the public that might be of

6

general interest.” Id. Had Officer Trizuto called the Seattle Times to report her

7

allegations against Officer Knudtsen, this would be a different case. Instead, she reported

8

her allegations to two superior officers, urging them to tell no one, then repeated those

9

allegations in the internal investigation that followed. An employee’s “complain[ts]

10

about her own job treatment” are emblematic of the “type of personnel matters that [the

11

Ninth Circuit has] deemed unprotected under the public concern test . . . .” Thomas v.

12

City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004) (emphasis in original). If there is

13

any authority in which an internal complaint like Officer Trizuto’s was deemed a matter

14

of public concern, Officer Trizuto has not cited it, and the court is not aware of it.

15

Officer Trizuto makes no attempt to demonstrate that her complaint about Officer

16

Knudtsen was on a matter of public concern, she instead focuses on her “allegation that

17

BPD has a demonstrable and long-standing practice of retaliation against employees who

18

file harassment complaints,” and that Lieutenant Young was “given a pass on his

19

retaliatory conduct as a result of BPD’s long-standing practice.” Pltf.’s Opp’n (Dkt.

20

# 33) at 9. That focus is misplaced because there is no evidence at all that Officer Trizuto

21

complained to BPD regarding its alleged “practice of retaliation.” She has stated those

22

complaints in this lawsuit, but there is no evidence that she reported them to BPD when

23

she reported Lieutenant Young’s alleged retaliation. There is no evidence that she

24

reported them to BPD when it conducted its investigation of those allegations. If Officer

25

Trizuto ever made allegations of a “practice of retaliation” prior to this lawsuit, she has

26

provided no evidence.

27
28

ORDER – 14

1

Even if Officer Trizuto’s complaint of retaliation were speech on a matter of

2

public concern, Lieutenant Young would be entitled to qualified immunity. Qualified

3

immunity protects § 1983 defendants “from liability for civil damages insofar as their

4

conduct does not violate clearly established statutory or constitutional rights of which a

5

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

6

A defendant successfully invokes qualified immunity either by showing that a plaintiff

7

has not alleged (or provided evidence for, depending on the stage of litigation) facts

8

amounting to a violation of a constitutional right or that the right was not “clearly

9

established” at the time of the defendant’s violation. Pearson v. Callahan, 555 U.S. 223,

10

231 (2009). As the court has noted, neither the Supreme Court nor the Ninth Circuit has

11

favored elevating employee grievances to matters of public concern. No clearly

12

established authority would have advised Lieutenant Young that the First Amendment

13

protected Officer Trizuto’s retaliation complaint against him.

14

3.

15

Like Title VII, the WLAD prohibits employers from retaliating against employees

WLAD Retaliation

16

who engage in protected activities. RCW 49.60.210(1). To prove retaliation, Officer

17

Trizuto must establish (1) that she engaged in or was engaging in a statutorily protected

18

activity, (2) that BPD or Lieutenant Young subjected her to an adverse employment

19

action; and (3) that there is a causal link between her protected activity and the adverse

20

action. Lodis v. Corbis Holdings, Inc., 292 P.3d 779, 786 (Wash. Ct. App. 2013). To

21

prove the required causal link, she must show that protected activity was a substantial

22

factor motivating the adverse action. Allison v. Housing Auth. of Seattle, 821 P.2d 34, 43

23

(Wash. 1991).
a.

24
25

Protected Activity

There is no dispute that Officer Trizuto’s complaints about Officer Knudtsen’s

26

harassment were protected activity. Protected activities include allegations of

27

discrimination and threats to take legal action. Short v. Battle Ground Sch. Dist., 279

28

ORDER – 15

1

P.3d 902, 912 (Wash. Ct. App. 2012); see also Renz v. Spokane Eye Clinic, P.S., 60 P.3d

2

106, 109 (Wash. Ct. App. 2002) (finding that complaint of sexual harassment is protected

3

activity).

4
5

b.

Adverse Employment Action or Hostile Work Environment

Whether Officer Trizuto experienced an adverse employment action is a closer

6

question. In a Title VII retaliation claim, an “employer’s actions must be harmful to the

7

point that they could well dissuade a reasonable worker from making or supporting a

8

charge of discrimination.” Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 57

9

(2006); see also Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (holding in

10

retaliation context that an adverse employment action is one that is “reasonably likely to

11

deter employees from engaging in protected activity”). No published Washington

12

decision has adopted the federal definition of an adverse employment action in the

13

retaliation context, although this District’s judges have sometimes relied on the definition

14

when assessing WLAD claims. E.g., Daniel v. Boeing Co., 764 F. Supp. 2d 1233, 1246

15

(W.D. Wash. 2011). Whereas federal courts interpreting Title VII define adverse

16

employment actions more broadly in the retaliation context than in the discrimination

17

context, White, 548 U.S. at 61-67, Washington courts have not, at least not explicitly. An

18

adverse action in a retaliation claim “must involve a change in employment conditions

19

that is more than an inconvenience or alteration of job responsibilities . . . .” Tyner v.

20

DSHS, 154 P.3d 920, 929 (Wash. Ct. App. 2007) (internal quotation of Kirby v. City of

21

Tacoma, 98 P.3d 827, 833 (Wash. Ct. App. 2004), omitted). By that definition, “yelling

22

at an employee or threatening to fire an employee is not an adverse employment action.”

23

Kirby, 98 P.3d at 833. By this standard, it is questionable at best whether Officer Trizuto

24

can point to an adverse employment action. She did not lose her job, suffer a demotion,

25

lose pay, or suffer any other professional consequences. Ultimately, however, the court

26

need not decide which definition of “adverse action” it should apply, or whether Officer

27

Trizuto has evidence of any single adverse action. Officer Trizuto does not attempt to

28

ORDER – 16

1

establish that any single act by Lieutenant Young or anyone else at BPD was an adverse

2

employment action.
Rather than argue that any one of Defendants’ actions was an adverse employment

3
4

action, Officer Trizuto argues that their actions collectively constituted a hostile work

5

environment motivated by the desire to retaliate against her. Federal courts applying

6

Title VII have recognized a retaliatory hostile work environment claim. Ray, 217 F.3d at

7

1244-45. Washington courts recognize hostile work environment claims based on

8

discrimination. See, e.g., Antonius v. King County, 103 P.3d 729, 733 (Wash. 2004)

9

(recognizing a claim for “a racially hostile work environment extending over six years”).

10

In those cases, a “hostile work environment claim is composed of a series of separate acts

11

that collectively constitute one unlawful employment practice.” Id. at 734 (internal

12

quotation omitted). So far as the court is aware, no Washington court has expressly

13

authorized a retaliatory hostile work environment claim. 4 But see Shields v. BCI Coca-

14

Cola Bottling Co., No. C04-928JLR, 2005 U.S. Dist. LEXIS 33626, at *2 (W.D. Wash.

15

Sept. 12, 2005) (assuming, without deciding, that Washington’s courts would recognize a

16

cause of action for a retaliatory hostile work environment).
The court concludes that Washington’s courts would recognize a retaliatory hostile

17
18

work environment claim. They have recognized such claims in other contexts. See, e.g.,

19

Harrell v. DSHS, 285 P.3d 159, 166 (Wash. Ct. App. 2012); Crownover v. Dep’t of

20

Transp., 265 P.3d 971, 145 (Wash. Ct. App. 2011) (recognizing, in sexual harassment

21

context, that a hostile work environment consists of acts of harassment “sufficiently

22

pervasive so as to alter [an employee’s] working conditions”). The court is aware of no

23

reason that they would not, like their federal counterparts, permit a plaintiff to establish

24

retaliation via a hostile working environment. See Antonius, 103 P.3d at 735 (“[The

25

4

27

Four dissenting Washington Supreme Court justices in Robel v. Roundup Corp. would have
required, in the context of a worker’s compensation retaliation claim, an “actual adverse
employment action, such as a demotion or adverse transfer, or a hostile work environment that
amounts to an adverse employment action.” 59 P.3d 611, 631 n.24 (2002).

28

ORDER – 17

26

1

Washington Supreme Court] ha[s] frequently recognized that while federal

2

discrimination cases are not binding, they may be persuasive and their analyses adopted

3

where they further the purposes and mandates of state law.”).

4

The court concludes, without suggesting that Officer Trizuto is likely to prevail at

5

trial, that she has sufficient evidence of conduct severe and pervasive enough to

6

constitute a hostile working environment. Although a jury could conclude that the

7

conduct Officer Trizuto complains of was neither severe nor pervasive, the court cannot

8

hold that no jury could possibly reach the opposite conclusion.

9
10

c.

Causal Link Between Protected Activity and Retaliation

Before considering whether Officer Trizuto has presented evidence from which a

11

jury could find a causal link between Defendants’ allegedly retaliatory conduct and

12

Officer Trizuto’s protected activity, the court notes that Officer Trizuto has evidence of

13

two distinct periods of retaliatory conduct. The first period, in her view, was from when

14

Lieutenant Young began treating her differently in the end of August 2010 until the end

15

of BPD’s investigation into her retaliation complaint a few months later. She has no

16

evidence of any retaliatory conduct thereafter until November 2012. Then, just after she

17

filed her pre-suit claim with the City, she contends that Lieutenant Young began to

18

retaliate again. His conduct in this period consisted of more glares, allegedly pressuring

19

other officers to question Officer Trizuto’s conduct, and an incident in which Lieutenant

20

Young drove through a parking lot in which she was working. Id. ¶ 31. Officer Trizuto

21

does not describe this conduct in her complaint (indeed, some of it occurred after she

22

filed her complaint), but Defendants do not object to her evidence on that basis. The

23

court assumes, without deciding, that Officer Trizuto could amend her complaint to

24

allege this later conduct.

25

Both periods of alleged retaliation came not long after Officer Trizuto engaged in

26

a protected activity. When alleged harassment is in close temporal proximity to a

27

plaintiff’s protected activity, a jury may infer that it is retaliatory. Dawson v. Entek Int’l,

28

ORDER – 18

1

630 F.3d 928, 937 (9th Cir. 2011) (noting that “temporal proximity can by itself

2

constitute sufficient circumstantial evidence of retaliation”). Estevez v. Faculty Club, 120

3

P.3d 579, 590 (Wash. Ct. App. 2005) (noting that temporal proximity between alleged

4

retaliatory conduct and protected activity is evidence that “suggest[s] retaliatory

5

motivation”).

6

As to the period of allegedly retaliatory conduct in 2010, it came at most two

7

months after Officer Trizuto’s complaint against Officer Knudtsen became an official

8

investigation. Officer Trizuto has evidence that Lieutenant Young and Officer Knudtsen

9

were friends, evidence that the court must accept on summary judgment. Lieutenant

10

Young declares that he had no idea that Officer Knudtsen was the subject of the

11

complaint in June 2010, and did not learn that fact until “much later.” Young Decl. (Dkt.

12

# 31) ¶ 12. Officer Trizuto has no contrary evidence. Lieutenant Young does not,

13

however, reveal precisely when he learned that Officer Knudtsen was the target of her

14

complaint. It is possible that he did not learn that Officer Knudtsen was the target until

15

after he had been removed as Officer Trizuto’s squad leader in September 2010, in which

16

case it is not possible that his alleged mistreatment of Officer Trizuto was for a retaliatory

17

purpose. Officer Trizuto does not contend that Lieutenant Young retaliated against her

18

merely because she lodged a complaint against someone, she alleges that he retaliated

19

because she lodged a complaint against Lieutenant Young’s friend, Officer Knudtsen. It

20

is also possible, however, that he learned that Officer Knudtsen was the target of Officer

21

Trizuto’s complaint in August 2010, and that his treatment of Officer Trizuto changed

22

thereafter. It is, of course, Ms. Trizuto’s burden to offer evidence from which a jury

23

could reach that conclusion without undue speculation. Defendants made it difficult for

24

her to do so, however, because they filed their motion for summary judgment before she

25

took Lieutenant Young’s deposition or obtained other discovery. Defendants chose both

26

to avoid specifics regarding when Lieutenant Young learned that Officer Knudtsen was

27

the target of Officer Trizuto’s complaint and to file their summary judgment motion near

28

ORDER – 19

1

the outset of discovery. They must bear the consequences of that decision. 5 A jury may

2

decide if Lieutenant Young’s alleged mistreatment of Officer Trizuto resulted from him

3

learning that she had lodged a complaint against Officer Knudtsen.
As to the period of allegedly retaliatory conduct beginning in November 2012 and

4
5

continuing until at least July 2013, it came just after Officer Trizuto notified the City of

6

her intent to file this lawsuit. Again, there is no direct evidence revealing when

7

Lieutenant Young learned that he was the subject of a lawsuit. A jury could infer, at a

8

minimum, that Lieutenant Young knew no later than March 2013, when local press

9

publicized the suit. Discovery from Lieutenant Young will clarify when he first learned

10

of this lawsuit.

11

d.

Defendants’ Defenses

Before leaving Officer Trizuto’s WLAD retaliation claim, the court addresses a

12
13

few of Defendants’ attempts at raising defenses. First, Defendants invite the court to

14

apply the McDonnell Douglas burden-shifting analysis that augments the familiar

15

summary judgment standard in employment discrimination cases where the plaintiff lacks

16

direct evidence of an unlawful motive. See, e.g., Hegwine v. Longview Fibre Co., 172

17

P.3d 688, 696 (Wash. 2007) (Wash. 1993) (using McDonnell Douglas framework to

18

5

27

Officer Trizuto’s opposition to Defendants’ summary judgment motion includes a request,
invoking Federal Rule of Civil Procedure 56(d), that the court delay ruling on the summary
judgment motion until she can take additional discovery. Rule 56(d) permits a party to resist a
summary judgment motion by “show[ing] by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition” to the motion. Fed. R. Civ. P. 56(d). A
party may invoke Rule 56(d) to ask the court to deny the summary judgment motion outright, or
delay consideration of it while the party completes necessary discovery. A party relying on Rule
56(d) must offer specific reasons that it needs additional discovery to oppose a summary
judgment motion. The affidavit must state “the specific facts it hopes to elicit from further
discovery,” and that “the sought-after facts are essential to oppose summary judgment.” Family
Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). A
court has discretion to deny a Rule 56(d) request that does not meet these requirements. Tatum
v. City & County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006) (discussing Rule
56(f), the predecessor to Rule 56(d)). Except as to discovery from Lieutenant Young, Officer
Trizuto’s Rule 56(d) request gives the court no reason not to rule on Defendants’ summary
judgment motion. The court’s ruling ensures that Officer Trizuto suffers no prejudice from
Defendants’ choice to file their summary judgment motion before she obtained discovery from
Lieutenant Young.

28

ORDER – 20

19
20
21
22
23
24
25
26

1

evaluate WLAD disparate treatment claim). That analysis, which takes its name from

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), requires a plaintiff to establish

3

a prima facie case of discrimination or retaliation; if she succeeds, the burden shifts to the

4

defendant to produce evidence of a lawful motive for its action; if the defendant

5

succeeds, the plaintiff must produce evidence that the defendant’s proffered motive is

6

pretext. Hegwine, 172 P.3d at 696. The court questions whether the McDonnell Douglas

7

analysis applies to a hostile work environment claim. See, e.g., McGinest v. GTE Serv.

8

Corp., 360 F.3d 1103, 1112-24 (9th Cir. 2004) (applying McDonnell Douglas to claims

9

of race discrimination and retaliation, but not to hostile work environment claim). If it

10

did, it would potentially require a court to examine individually all of the discrete acts

11

comprising the alleged hostile work environment to determine if the defendant had a

12

lawful and non-pretextual motive for each. The court does not decide whether the

13

McDonnell Douglas analysis is applicable to a hostile work environment claim. It

14

concludes, in summary fashion, that if it does apply, both parties discharged their

15

respective burdens as to a prima facie case, a lawful motive, and pretext.

16

In addition, the court concludes that BPD has not established a defense, based on

17

its prompt response to Officer Trizuto’s complaint of retaliation, sufficient to warrant

18

summary judgment. In a Title VII hostile work environment claim, a plaintiff must prove

19

that her employer can be held responsible for the hostile environment. McGinest, 360

20

F.3d at 1119 (requiring court to first assess whether a hostile environment existed, then

21

determine whether employer’s “response was adequate as a whole”); Davis v. Team Elec.

22

Co., 520 F.3d 1080, 1089 (9th Cir. 2008). An employer is presumptively responsible if

23

supervisors engaged in harassing conduct. Id. Washington law imposes liability directly

24

on supervisors who violate the WLAD as well as the entity employing them. Brown v.

25

Scott Paper Worldwide Co., 20 P.3d 921, 928 (Wash. 2001) (“[I]ndividual employers,

26

along with their supervisors, may be held liable for their discriminatory acts.”). Where

27

non-supervisor co-workers commit the acts that caused the hostile work environment, the

28

ORDER – 21

1

plaintiff must show that the employer knew or should have known about the hostile

2

environment and failed to take adequate remedial and disciplinary action. Id.; Davis, 520

3

F.3d at 1095. In a WLAD hostile work environment claim, a plaintiff must prove that the

4

hostile work environment is “imputable to the employer.” Antonius, 103 P.3d at 732. As

5

to the period of allegedly retaliatory activity in 2010, Lieutenant Young was Officer

6

Trizuto’s supervisor. As to the period of allegedly retaliatory activity that began in late

7

2012, Lieutenant Young was not her supervisor. She does not reveal whether she

8

reported his allegedly retaliatory conduct to a supervisor. At least some of her

9

allegations, however, are that Lieutenant Young leaned on her supervisors in an attempt

10

to make her working conditions difficult. A jury could infer, therefore, that her

11

supervisors were aware of his allegedly retaliatory conduct.

12

A jury could conclude that BPD responded promptly and adequately whenever it

13

became aware of allegedly retaliatory conduct. Notably, it removed Lieutenant Young

14

from supervising Officer Trizuto as soon as she formally complained. A jury must

15

decide, however, to what extent that shields BPD from liability. BPD has not established

16

a complete defense, at least not as a matter of law. Moreover, even if its remedial efforts

17

were adequate, it cannot avoid respondeat superior liability if a jury concludes that

18

Lieutenant Young engaged in retaliatory conduct while he supervised Officer Trizuto.

19

For similar reasons, the court cannot grant summary judgment in BPD’s favor on

20

its Faragher/Ellerth defense. That defense, taking its name from two eponymous

21

Supreme Court decisions, permits an employer named in a hostile work environment

22

claim to avoid liability if it had an anti-harassment policy in place, executed it with

23

reasonable care, and the plaintiff unreasonably failed to take advantage of preventative or

24

corrective opportunities that the employer offered via the policy. Burrell v. Star Nursery,

25

Inc., 170 F.3d 951, 955-56 (9th Cir. 1999) (citing Burlington Indus. v. Ellerth, 524 U.S.

26

742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998)). As to the 2010 period of

27

alleged retaliation, the Faragher/Ellerth defense is inapplicable. Officer Trizuto did take

28

ORDER – 22

1

advantage of BPD’s anti-harassment policy by filing a complaint about Lieutenant

2

Young’s conduct. As to the 2012 period of alleged retaliation, the record is not clear.

3

BDP may prevail on the defense at trial as to the 2012-2013 retaliation, but the evidence

4

does not compel the court to grant summary judgment.

5

4.

6

Officer Trizuto contends that Defendants’ conduct negligently or intentionally

Emotional Distress Torts

7

inflicted emotional distress on her. The tort of intentional infliction of emotional distress

8

requires “(1) extreme and outrageous conduct, (2) intentional or reckless infliction of

9

emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Robel v.

10

Roundup Corp., 59 P.3d 611, 619 (Wash. 2002). To satisfy the first element, a plaintiff

11

must prove conduct “so outrageous in character, and so extreme in degree, as to go

12

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

13

intolerable in a civilized community.” Id. (citation omitted). A court need not permit a

14

jury to resolve an outrage claim if it determines that reasonable minds could not differ on

15

whether the challenged conduct was sufficiently outrageous. Id.; Dicomes v.

16

Washington, 782 P.2d 1002, 1013 (Wash. 1989).

17

Even under the most charitable view of Officer Trizuto’s description of

18

Defendants’ conduct, they did not engage in the sort of “extreme and outrageous

19

conduct” that she must prove to prevail on a claim of intentional infliction of emotional

20

distress. See Dicomes, 782 P.2d at 1013 (concluding that court may dismiss claim if

21

reasonable minds could not differ over whether conduct was extreme and outrageous);

22

Steinbock v. Ferry County Pub. Util. Dist. No. 1, 269 P.3d 275, 282 (Wash. Ct. App.

23

2011) (affirming dismissal of outrage claim, recognizing that trial court must serve a

24

“gatekeeping role” in determining what qualifies as outrage).

25

Officer Trizuto may take her claim of negligent infliction of emotional distress to

26

the jury, although the court will instruct the jury that it may not duplicate any emotional

27

distress damages it awards via her WLAD claim.

28

ORDER – 23

1
2
3
4
5
6
7
8
9
10
11

IV. CONCLUSION

For the reasons stated above, the court GRANTS in part and DENIES in part
Defendants’ motion to dismiss and their motion for summary judgment. Dkt. ## 9, 30.
What remains of this case is Officer Trizuto’s claim that Defendants violated the WLAD
by creating a retaliatory hostile work environment and her claim that Defendants are
liable for negligent infliction of emotional distress. The court dismisses all other claims
with prejudice.
Summary judgment is not a trial judge’s opportunity to prevent a plaintiff who is
unlikely to succeed at trial from presenting claims to a jury. It is instead a procedure for
keeping from the jury claims that cannot succeed as a matter of law. No one should read
this order to suggest a view on Officer Trizuto’s prospects for success at trial.
Dated this 18th day of November, 2013.

12
13

15

A

16

The Honorable Richard A. Jones
United States District Court Judge

14

17
18
19
20
21
22
23
24
25
26
27
28

ORDER – 24