Chinn v. Whidbey Public Hospital District

Filing 64

MINUTE ORDER granting in part, denying in part, and deferring in part Plaintiff's 49 Motion for Partial Summary Judgment. Authorized by Judge Thomas S. Zilly. (MW)

Case 2:20-cv-00995-TSZ Document 64 Filed 11/18/21 Page 1 of 4

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7

MELISSA CHINN,

8
9
10
11

Plaintiff,
v.

C20-995 TSZ

WHIDBEY PUBLIC HOSPITAL
DISTRICT, d/b/a WHIDBEY
HEALTH MEDICAL CENTER,

12

MINUTE ORDER

Defendant.

13

The following Minute Order is made by direction of the Court, the Honorable
14 Thomas S. Zilly, United States District Judge:
15
16
17
18
19
20
21
22

(1)
Plaintiff’s motion, docket no. 49, for partial summary judgment on certain
affirmative defenses (6, 7, 9, 10, 11, 13, 15, 16, 17, 18, 19, and 23) is GRANTED in part,
DENIED in part, and DEFERRED in part, as follows:
a.
The motion is GRANTED, in part, as to Defendant’s sixth
affirmative defense that the discriminatory treatment was based on one or more
bona fide factors or occupational qualifications; provided, however, Defendant
may raise the issue in connection with pay disparity.
b.
The motion is DENIED as to Defendant’s seventh affirmative
defense that the pay disparity was the result of (a) a seniority system; (b) a merit
system; (c) a system that measures earnings by quantity or quality of production;
(d) a bona fide job-related factor or factors; and/or (e) any factors other than sex.
There are material issues of fact concerning Defendant’s use of Medical Group
Management Association (“MGMA”) earnings data that preclude summary
judgment.

23
MINUTE ORDER - 1

Case 2:20-cv-00995-TSZ Document 64 Filed 11/18/21 Page 2 of 4

1
2

c.
The unopposed motion is GRANTED as to Defendant’s ninth
affirmative defense that the equitable doctrine of unclean hands bars some, or all,
of Plaintiff’s claims.

3

d.
The unopposed motion is GRANTED as to Defendant’s tenth
affirmative defense that Laches bars some, or all, of Plaintiff’s claims.

4

e.
The motion is GRANTED, in part, as to Defendant’s eleventh
affirmative defense that sovereign immunity bars some, or all, of Plaintiff’s
claims; provided, however, Defendant is not subject to punitive damages. Though
Plaintiff asserts that the Ninth Circuit has left open the question of whether
“punitive damages are available at all under section 1981 where the defendant is a
municipality,” see White v. Wash. Pub. Power Supply Sys., 692 F.2d 1286, 1290
(9th Cir. 1982), the ruling was superseded by the Civil Rights Act of 1991, which
“made available compensatory damages for emotional pain and suffering and
punitive damages under Title VII.” Ahlmeyer v. Nevada Sys. of Higher Educ., 555
F.3d 1051, 1059 (9th Cir. 2009). 42 U.S.C. § 1981a(b)(1) provides that a plaintiff
may recover punitive damages against a defendant “other than a government,
government agency or political subdivision.” The parties do not dispute that
Whidbey Health is a municipal corporation. Plaintiff’s claim of punitive damages
under state law and its reliance on RCW 4.96.010 which subjects “[a]ll local
government entities” to “liab[ility] for damages arising out of their tortious
conduct . . . to the same extent as if they were a private person or corporation” is
misplaced. See Resp. at 24 (docket no. 56). Washington law does not allow for
punitive damages against any person or corporation. Barr v. Interbay Citizens
Bank of Tampa, Fla., 96 Wn.2d 692, 697 635 P.2d 441 (1981) (“Under the law of
this state, punitive damages are not allowed unless expressly authorized by the
legislature.”). Punitive damages are unavailable under the Washington Law
Against Discrimination, see Chuong Van Pham v. City of Seattle, Seattle City
Light, 159 Wn.2d 527, 537, 151 P.3d 976 (2007) (citing Dailey v. N. Coast Life
Ins. Co., 129 Wn.2d 572, 575, 919 P.2d 589 (1996)), and the Washington Equal
Pay and Opportunities Act. See RCW 49.58.070. Accordingly, Defendant is not
subject to a claim for punitive damages.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

f.
The motion is GRANTED as to Defendant’s thirteenth affirmative
defense that the Ellerth/Faragher defense bars some, or all, of Plaintiff’s claims.
Ellerth and Faragher established a test for determining whether an employer is
vicariously liable for a hostile work environment created by a supervisor. See
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998). “The Supreme Court made clear that the affirmative
defense outlined in Ellerth and Faragher applies only in cases of vicarious
liability, where the harasser is the victim’s supervisor.” Swinton v. Potomac
Corp., 270 F.3d 794, 803 (9th Cir. 2001). If harassment is committed by a co-

23
MINUTE ORDER - 2

Case 2:20-cv-00995-TSZ Document 64 Filed 11/18/21 Page 3 of 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

worker of the plaintiff’s, the employer is liable only under a negligence theory and
the employer may not invoke the Ellerth/Faragher affirmative defense. See id. at
803–04. The record contains no allegation that Plaintiff’s supervisor created a
hostile work environment and Plaintiff does not allege discrimination on a theory
of hostile work environment. See Compl. (docket no. 1). Defendant’s discussion
of Plaintiff’s interactions with Dr. Giem is misplaced, as Dr. Giem was not
Plaintiff’s supervisor.
g.
The motion is DEFERRED as to Defendant’s fifteenth affirmative
defense that Plaintiff failed to mitigate her damages.
h.
The motion is DENIED as to Defendant’s sixteenth affirmative
defense that an applicable statute of limitations bars some, or all, of Plaintiff’s
claims. The federal Equal Pay Act, 29 U.S.C. § 255(a), has a two-year statute of
limitations (or three years for willful conduct) and the Washington Equal Pay and
Opportunities Act, RCW 49.58.070(1), has a three-year statute of limitations. The
Court will address the applicable statute of limitations and the limit of any
damages recovered under these acts as part of its jury instructions.
i.
The unopposed motion is GRANTED as to Defendant’s seventeenth
affirmative defense that Plaintiff failed to exhaust contractual and administrative
remedies as required by law.
j.
The unopposed motion is GRANTED as to Defendant’s eighteenth
affirmative defense that the doctrine of after-acquired evidence bars Plaintiff’s
claims and/or damages.
k.
The unopposed motion is GRANTED as to Defendant’s nineteenth
affirmative defense that Plaintiff is estopped from raising her claims if she
declared bankruptcy.
l.
The motion is DEFERRED as to Defendant’s twenty-third
affirmative defense that reinstating Plaintiff would produce undue hardship.
Reinstatement is an equitable remedy that will be resolved by the Court, if
necessary, after trial.

(2)
19 record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

20
21
22
23
MINUTE ORDER - 3

Case 2:20-cv-00995-TSZ Document 64 Filed 11/18/21 Page 4 of 4

1

Dated this 18th day of November, 2021.

2
Ravi Subramanian
Clerk

3

s/Gail Glass
Deputy Clerk

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
MINUTE ORDER - 4