Kitazi v. Sellen Construction Company Inc et al

Filing 46

ORDER granting defendants' Motions to Strike (dkt. ## 32 , 35 ); denying Defendant Sellen's 32 Motion for Summary Judgment; granting Defendants Kate Harkess and Ken Knudsen's 35 Motion for Summary Judgment; This case will proceed to trial on all claims against Defendant Sellen. Signed by Judge Marsha J. Pechman.(SWT) (Kate Harkess and Ken Knudsen terminated.)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ERIC KITAZI,
Plaintiff,

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CASE NO. C16-1651-MJP

v.

ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

SELLEN CONSTRUCTION
COMPANY, INC. a corporation;
ROBERT P. MCCLESKY director, in
his individual and corporate capacities
and on behalf of his marital
community, JANE DOE MCCLESKY;
KATE HARKESS, individually and in
her official capacity; and KEN
KNUDSEN, individually and in his
official supervisory capacities,

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Defendants.
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THIS MATTER comes before the Court on Defendants’ Motions for Summary Judgment
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and Motions to Strike. (Dkt. Nos. 32, 35.) Having considered the Parties’ briefing and all
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related papers, the Court GRANTS Defendants’ Motions to Strike; DENIES Defendant Sellen
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY
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Construction Company’s Motion for Summary Judgment; and GRANTS Defendants Kate

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Harkess and Ken Knudsen’s Motion for Summary Judgment.

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Background

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Plaintiff Eric Kitazi brings this employment discrimination action against Sellen

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Construction Company, Inc. (“Sellen”), its Director of Human Resources Kate Harkess

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(“Harkess”), and its Superintendent of Cement Masons Ken Knudsen (“Knudsen”) (collectively,

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“Defendants”) on the basis of race and national origin. (Dkt. Nos. 1, 17.)

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Plaintiff, a Kenyan national, worked at Sellen from 2008-2010 and from January-

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November 2014. (Dkt. No. 17 at 2.) Plaintiff alleges that he was discriminated against by co-

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workers and supervisors who subjected him to harassment and demeaning remarks on the job.

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(Id. at 5-8.)

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Plaintiff alleges that in September 2014, shortly after the Ebola outbreak in West Africa,

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an unknown worker yelled “Ebola!” inciting laughter from other workers on the jobsite. (Dkt.

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No. 37 at 4-5.) On another occasion, Plaintiff alleges a worker stated he was “keeping the rapists

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out,” which Plaintiff perceived as a racial stereotype. (Id. at 5.) On another occasion, a worker

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called Plaintiff “monkey butter,” which he perceived as a racial slur. (Id.) Plaintiff alleges that

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he was repeatedly stared at, followed, regarded with suspicion, threatened and yelled at by other

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workers. (Id. at 6, 10-13.) Plaintiff alleges that his foreman treated white workers with more

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respect, encouraged other workers to follow and harass him, and refused to communicate with

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him about details of the job. (Id. at 9, 11-12.) Plaintiff alleges that other workers noticed his

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disparate treatment and told him, “I see how they treat you different.” (Id. at 4). Plaintiff alleges

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he complained to supervisors and foremen about being followed and physically threatened on the

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jobsite, and on one occasion he complained formally to Defendant Harkess. (Id. at 6, 10, 12-13.)

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY
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Plaintiff alleges he reported instances of being followed and stared at to Defendant Knudsen on

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November 19, 2014 and to another supervisor and foreman on November 24, 2014. (Id. at 12-

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13.) Plaintiff alleges he was terminated the following day, on November 25, 2014. (Id. at 13.)

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Plaintiff’s amended complaint asserts a variety of causes of action under state and federal

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law relating to the alleged employment discrimination. (See Dkt. No. 17.) Plaintiff voluntarily

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has abandoned several of those claims, and only his only remaining claims are for employment

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discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

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1981 (“Section 1981”), and the Washington Law Against Discrimination; retaliation; and hostile

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working environment. (See Dkt. No. 37 at 2.)

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Defendants argue that Plaintiff’s complaints to management alluded only vaguely to

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racial tension and differential treatment, and that Plaintiff did not provide any details that could

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be investigated. (Dkt. No. 32 at 18.) Defendants allege that Plaintiff was laid off due to a

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reduction in work for cement masons between November-December 2014. (Id. at 19; Dkt. No.

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41 at 7.)

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Defendant Sellen (Dkt. No. 32) and Defendants Harkess and Knudsen (Dkt. No. 35) now

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move for summary judgment as to each of Plaintiff’s claims. Plaintiff opposes Defendant

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Sellen’s Motion, but has not substantively opposed Defendants Harkess and Knudsen’s Motion.

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(See Dkt. No. 37.)

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Discussion
I.

Legal Standards
A. Summary Judgment
Summary judgment is proper where “the movant shows that there is no genuine issue as

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to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY
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of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In assessing whether a party has met

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its burden, the underlying evidence must be viewed in the light most favorable to the non-

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moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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The Ninth Circuit and Washington courts impose a high standard for granting summary

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judgment in employment discrimination cases. The Ninth Circuit has stated that “very little

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evidence” is required to survive summary judgment because “the ultimate question is one that

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can only be resolved through a searching inquiry—one that is most appropriately conducted by

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the factfinder, upon a full record.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th

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Cir. 1996) (internal quotation marks and citation omitted). Washington courts have stated that

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summary judgment “should rarely be granted in employment discrimination cases.” See, e.g.,

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Sangster v. Albertson’s, Inc., 99 Wn. App. 156, 160 (2000) (citation omitted).

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II.

Defendants’ Motion to Strike
Defendants move to strike Exhibit B-1, submitted by Plaintiff in response to Defendants’

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Motions for Summary Judgment. (Dkt. No. 40 at 2; Dkt. No. 41 at 2-4.) Defendants assert that

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Exhibit B-1 is unauthenticated and unsigned, and contains factual assertions and legal argument

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in excess of the Court’s page limits. (Id.)

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“A trial court can only consider admissible evidence in ruling on a motion for summary

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judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) . “Authentication

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is a condition precedent to admissibility, and this condition is satisfied by evidence sufficient to

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support a finding that the matter in question is what its proponent claims.” Id. (citing Fed. R.

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Evid. 901(a)) (internal quotation marks omitted). Additionally, Local Rule 7 provides that an

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opposition to a motion for summary judgment shall not exceed 24 pages, and that the court may

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refuse to consider any text which is not included within these page limits. LCR 7(e)(3), (6).

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY
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Exhibit B-1 is a 65-page chart listing Plaintiff’s disagreements with the facts and

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arguments in Defendants’ Motions. First, although Plaintiff essentially uses the exhibit as a

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sworn declaration to make factual assertions, it is not signed by a party or witness under penalty

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of perjury, and is therefore inadmissible. See Curtis v. Illumination Arts, Inc., No. C12-991JLR,

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2013 WL 6173799, at *10 (W.D. Wash. Nov. 21, 2013) (striking unsigned declaration and

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refusing to consider it on summary judgment); Coleman-Askew v. King County, No. C15-

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994MJP, 2016 WL 4399602, at *3 (W.D. Wash. Aug. 18, 2016) (striking unauthenticated,

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unsigned, and undated spreadsheet because “[i]t [was] not apparent from the document exactly

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what it is, how it was obtained, who created it, when it was created, and whether it has been

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edited.”). Second, Exhibit B-1 sets forth factual assertions and legal arguments which should

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have been included in the body of Plaintiff’s responsive pleading. Plaintiff should not be

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permitted to exceed the Court’s page limits in this manner.

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Therefore, the Court GRANTS Defendants’ Motions to Strike. Exhibit B-1 to Plaintiff’s

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Reply to Defendants’ Motions for Summary Judgment is stricken in its entirety and is not relied

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upon in the Court’s consideration of Defendants’ Motions for Summary Judgment.

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III.

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Plaintiff’s Employment Discrimination Claims
Plaintiff asserts employment discrimination claims under Title VII, Section 1981, and

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WLAD on the basis of race and national origin. Plaintiff alleges he was subjected to disparate

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treatment because he is from Africa and because he is African American. (Dkt. No. 37 at 3.)

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Absent direct evidence of discrimination, employment discrimination claims under Title

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VII, Section 1981, and WLAD typically are analyzed under the framework set forth in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff bears the initial burden of

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establishing a prima facie case of discrimination by showing (1) he is a member of a protected

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class; (2) he was qualified for his position or performing satisfactory work; (3) he suffered an
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adverse employment action, and (4) similarly situated employees outside the protected class

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were treated more favorably, or other circumstances surrounding the adverse action give rise to

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an inference of discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155-56 (9th Cir.

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2010). If Plaintiff succeeds, the burden shifts to Defendants to articulate a legitimate, non-

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discriminatory reason for the adverse employment action. Id. If Defendants succeed, Plaintiff

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must produce evidence that the articulated reason is mere pretext for unlawful discrimination.

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Id. This burden-shifting scheme is “designed to assure that the ‘plaintiff [has] his day in court

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despite the unavailability of direct evidence.’” Enlow v. Salem-Keizer Yellow Cab Co., Inc.,

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389 F.3d 802, 812 (9th Cir. 2004) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

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121 (1985)).

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Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that a

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reasonable fact-finder could find that the incidents alleged – notably, the remarks regarding

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“Ebola” and “monkey butter” – give rise to an inference of discrimination based on race and

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national origin. Similarly, a reasonable fact-finder could find that Plaintiff’s termination was

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related to the discrimination, and that Defendants’ alternative explanation is pretext.

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Therefore, summary judgment as to the employment discrimination claims against

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Defendant Sellen is DENIED.

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IV.

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Plaintiff’s Retaliation Claims
Plaintiff asserts retaliation claims under Section 1981 and the WLAD. Retaliation under

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federal and state law is analyzed using the burden-shifting scheme set forth in McDonnell

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Douglas. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (applying

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burden-shifting framework to retaliation claim under Section 1981); Tyner v. State, 137 Wn.

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App. 545, 564 (2007) (applying burden-shifting framework to retaliation claim under WLAD).

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To establish a prima facie case, Plaintiff must prove (1) he engaged in statutorily protected
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activity; (2) Defendants took an adverse employment action; and (3) there was a causal link

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between the protected activity and the adverse action. See Harris v. City of Seattle, 315 F. Supp.

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2d 1112, 1125 (W.D. Wash. 2004) (citing Bierlein v. Byrne, 103 Wn. App. 865, 871 (2000)).

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Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that a

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reasonable fact-finder could find that the incidents alleged suggest a causal link between

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Plaintiff’s complaints and his termination. First, Plaintiff’s termination occurred in close

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temporal proximity to his complaints to supervisors, including Knudsen. (Dkt. No. 37 at 12-13;

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Dkt. No. 41 at 5.) Second, Plaintiff offered evidence of satisfactory work performance and

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evaluations. Plaintiff’s supervisor and foreman described him during his deposition as a “great

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worker,” “a great guy to have on the pours,” and “a great guy to have around.” (Dkt. No. 37 at

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13.) In a claim for retaliation, an employee can establish that his employer acted with an

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improper motive if there is “[p]roximity in time between the adverse action and the protected

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activity, coupled with evidence of satisfactory work performance and supervisory evaluations.”

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Kahn v. Salerno, 90 Wn. App. 110, 131-32 (1998) (citing Wilmot v. Kaiser Aluminum & Chem.

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Corp., 118 Wn.2d 46, 69 (1991)).

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Furthermore, the Court concludes that a reasonable fact-finder could find that

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Defendants’ proffered explanation for terminating Plaintiff is pretext. Defendants allege that

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Plaintiff was laid off due to a decline in work at his jobsite and an overall reduction in work for

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cement masons from 4,863 hours in November 2014 to 3,931 hours in December 2014. (Dkt.

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No. 34-3 at Ex. 1.) However, this reduction in hours was apparently accompanied by an overall

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increase in employment of cement masons, from 29 to 34 during this same period. (Id.)

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Defendants also allege that Plaintiff was laid off along with a white co-worker, but offer no

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details as to the co-worker’s work performance or supervisory evaluations. (Dkt. No. 41 at 7.)

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Therefore, summary judgment as to the retaliation claims against Defendant Sellen is
DENIED.
V.

Plaintiff’s Hostile Working Environment Claim
Plaintiff asserts a hostile working environment claim under WLAD. Plaintiff must show

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(1) he suffered offensive, unwelcome conduct; (2) that is attributable to his membership in a

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protected class; (3) that affected the terms and conditions of his employment; and (4) that is

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imputable to his employer. See Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275 (2012).

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Conduct may be imputed to an employer if it is the conduct of an owner, manager, partner, or

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corporate officer of the employer, or if management authorized, knew or should have known of

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the conduct and failed to take reasonably prompt and adequate corrective action. See Francom v.

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Costco Wholesale Corp., 98 Wn. App. 845, 853 (2000) (citation omitted).

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Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that a

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reasonable fact-finder could find that the incidents alleged by Plaintiff give rise to a hostile

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working environment. While “[s]imple teasing, offhand comments, and isolated incidents

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(unless extremely serious) are not sufficient to create an actionable claim,” Reynaga v. Roseburg

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Forest Prods., 847 F.3d 678, 687 (9th Cir. 2017) (internal quotation marks and citation omitted),

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the conduct alleged by Plaintiff, viewed in the aggregate, is arguably offensive and unwelcome.

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See Jones v. Rabanco, Ltd., 439 F. Supp. 2d 1149, 1165 (W.D. Wash. 2006) (“In cases where

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several incidents occur over time, the Court must aggregate the occurrences and analyze the

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situation as a whole to determine if a hostile workplace existed.”). Furthermore, the Court

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concludes that a reasonable fact-finder could find that the alleged discriminatory conduct can be

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imputed to Defendants, as Plaintiff reported several of these incidents to management and human

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resources, while others (including the “Ebola” remark) occurred in the presence of, or were

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carried out by, supervisors and foremen. (Dkt. No. 37 at 4-7, 9-13.)
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Therefore, summary judgment as to the hostile working environment claims against

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Defendant Sellen is DENIED.

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VI.

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Plaintiff’s Claims Against Harkess and Knudsen
Plaintiff asserts employment discrimination, retaliation, and hostile work environment

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claims under WLAD against Defendants Harkess and Knudsen individually. (See Dkt. No. 17.)

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To hold supervisors individually liable, Plaintiff must show either that they themselves

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affirmatively engaged in discriminatory conduct, or that they aided, abetted, encouraged, or

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incited others in unfair practices. Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 360

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(2001). “Mere knowledge of harassing or discriminatory behavior is not sufficient to create

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liability for aiding and abetting . . . What is required is proof that the defendant has engaged in

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actions for the purpose of encouraging or assisting another to discriminate.” Yousefi v. Delta

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Elec. Motors, Inc., No. C13-1632RSL, 2014 WL 4384068, at *3 (W.D. Wash. Sept. 4, 2014)

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(citing Rody v. Hollis, 81 Wn.2d 88, 94-95 (1972)). Where a claim against an individual

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supervisor is premised on alleged failure to prevent or correct discrimination, Plaintiff must show

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that the individual “treated him less favorably than others because of his protected

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characteristics, not simply by accident or through a lack of care.” Id. (citing Hegwine v.

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Longview Fibre Co., Inc., 162 Wn.2d 340, 354 n.7 (2007)). Stated otherwise, a supervisor’s

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alleged failure to adequately investigate complaints of discrimination cannot give rise to liability

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without specific evidence of discriminatory intent. Id.

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Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that a

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reasonable fact-finder could not find that the incidents alleged by Plaintiff support his claims

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against Harkess or Knudsen, and thus these claims fail as a matter of law. Plaintiff has not

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shown that either supervisor affirmatively engaged in discrimination or intentionally failed to

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adequately investigate his complaints. The “Ebola” and “monkey butter” remarks did not occur
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in the presence of, were not witnessed by, and were not reported to Harkess or Knudsen. (See

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Dkt. No. 37 at 4-5.) Furthermore, Plaintiff does not substantively address the arguments or

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factual assertions made by Harkess or Knudsen. (See id.).

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Therefore, summary judgment as to all claims against Defendants Harkess and Knudsen
is GRANTED.

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Conclusion
The Court GRANTS Defendants’ Motions to Strike (Dkt. Nos. 32, 35) Plaintiffs’ Exhibit

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B-1 because it is unauthenticated and unsigned and does not comply with the rules regarding

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summary judgment briefing. The Court DENIES Defendant Sellen’s Motion for Summary

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Judgment (Dkt. No. 32) as to all claims because Plaintiff has provided just enough evidence to

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allow a reasonable fact-finder to find in his favor and to foreclose summary judgment on this

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basis. The Court GRANTS Defendants Kate Harkess and Ken Knudsen’s Motion for Summary

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Judgment (Dkt. No. 35) as to all claims because Plaintiff has failed to present specific evidence

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of discriminatory intent on the part of these individuals. This case will proceed to trial on all

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claims against Defendant Sellen.

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The clerk is ordered to provide copies of this order to all counsel.

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Dated November 14, 2017.

A
Marsha J. Pechman
United States District Judge

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