Northrop v. Safeway Inc

Filing 72

MINUTE ORDER granting parties' 67 Stipulated Motion re Evidence ; denying Defendant's 64 Motion for Reconsideration. Authorized by Judge Thomas S. Zilly. (SWT)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 LORAN G. NORTHROP, 8 9 10 Plaintiff, C16-350 TSZ v. MINUTE ORDER SAFEWAY, INC., 11 Defendant. 12 The following Minute Order is made by direction of the Court, the Honorable 13 Thomas S. Zilly, United States District Judge: 14 15 16 17 18 (1) The parties’ stipulated motion regarding evidence, docket no. 67, is GRANTED as follows: (a) Pursuant to the parties’ stipulation, for purposes of trial, all evidence or testimony concerning anyone employed by defendant, other than Brett Dow, calling plaintiff a “mental retard” or words to that effect is EXCLUDED. (b) Pursuant to the parties’ stipulation, defendant’s affirmative defense based on after-acquired evidence, see Answer at p. 5, ¶ 14 (docket no. 6 at 5), is STRICKEN. (2) Defendant’s motion for reconsideration, docket no. 64, of the Minute Order entered April 24, 2017, docket no. 62, denying in part defendant’s motion for summary 20 judgment as to plaintiff’s claim of retaliation, is DENIED. Defendant’s contention that plaintiff’s claim of retaliation is based on the same theory underlying his disability-based 21 hostile work environment claim, which was dismissed with prejudice by Order entered April 28, 2017, docket no. 63, lacks merit. Indeed, consistent with the Court’s ruling on 22 the hostile work environment claim, plaintiff has stipulated not to offer evidence at trial 19 23 MINUTE ORDER - 1 1 concerning name calling and aspersions about his mental acuity uttered by co-workers other than Brett Dow. Plaintiff asserts his retaliation claim under both the Americans 2 with Disabilities Act (“ADA”) and the Washington Law Against Discrimination (“WLAD”). To prevail on his retaliation claim, plaintiff must prove (i) he engaged in 3 protected conduct; (ii) he was subjected to an adverse employment action at the time, or after, the protected conduct occurred; and (iii) either, for purposes of the ADA claim, the 4 adverse employment action was taken because of plaintiff’s protected conduct or, for purposes of the WLAD claim, plaintiff’s protected conduct was a substantial factor in 5 defendant’s decision to take the adverse employment action. See 9th Cir. Model Instr. No. 12.9; WPI 330.05. Unlike in a disparate treatment case, an adverse employment 6 action in the retaliation context need not materially affect the terms and conditions of employment. See 9th Cir. Model Instr. No. 10.9. With respect to retaliation claims, an 7 adverse employment action is established if a reasonable employee would have been dissuaded by the action from making or supporting a charge of discrimination. See 9th 8 Cir. Model Instr. No. 10.10. Plaintiff alleges that, after learning about the charge he filed with the Washington State Human Rights Commission, Brett Dow demanded that he 9 “drop it,” grabbed him by the arm, prevented him from leaving, and threatened to make things difficult for him. See Northrop Decl. at ¶ 28 (docket no. 56). The Court is 10 satisfied that plaintiff has presented issues for trial concerning whether he was subjected to an adverse employment action as a result of protected conduct. Defendant was simply 11 not entitled to summary judgment as to plaintiff’s claim of retaliation. See Fed. R. Civ. P. 56(a). 12 (3) The Clerk is directed to send a copy of this Minute Order to all counsel of record. 13 14 Dated this 5th day of May, 2017. 15 William M. McCool Clerk 16 s/Karen Dews Deputy Clerk 17 18 19 20 21 22 23 MINUTE ORDER - 2

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