Yerba v. Amfit, Inc

Filing 38

ORDER by Judge Benjamin H. Settle granting in part and denying in part 18 Motion for Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ESTRELLA YEBRA,

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Plaintiff,

ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

v.
AMFIT, INC,

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CASE NO. C14-5233 BHS

Defendant.

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This matter comes before the Court on Defendant Amfit, Inc.’s (“Amfit”) motion

14 for summary judgment (Dkt. 18). The Court has considered the pleadings filed in support
15 of and in opposition to the motion and the remainder of the file and hereby grants in part
16 and denies in part the motion for the reasons stated herein.
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I. PROCEDURAL HISTORY
On March 18, 2014, Plaintiff Estrella Yebra (“Yebra”) filed a complaint against

19 Amfit asserting causes of action for national origin discrimination, sex discrimination,
20 color discrimination, and retaliation in violation of Title VII of the Civil Rights Act of
21 1964, 42 U.S.C. § 2000e, et seq., and the Washington Law Against Discrimination, RCW
22 Chapter 49.60 and a claim for negligence. Dkt. 1.

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On June 6, 2015, Amfit filed a motion for summary judgment. Dkt. 18. On July

2 6, 2015, Yebra responded. Dkt. 24. On July 10, 2015, Amfit replied. Dkt. 26.
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II. FACTUAL BACKGROUND

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This case arises out of the employment and termination of Yebra from Amfit.

5 Although not supported by admissible evidence in the record, Yebra alleges that she is a
6 female, was born in Cuba, and has dark skin complexion. Dkt. 1 at 1. In July 2009,
7 Amfit hired Yebra to work in the milling unit of its orthotic insole manufacturing
8 business. Dkt. 20, Declaration of Robert Catchings, ¶ 4. Robert Catchings, the
9 supervisor of Amfit’s fabrication department, made the decision to hire Yebra and admits
10 that he was aware of Yebra’s sex, national origin, and skin color when he hired her. Id.
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It is undisputed that Yebra received numerous warnings regarding her poor work

12 performance. In fact, Mr. Catchings declares he moved Yebra from the milling unit to
13 the covering department “to preserve her employment.” Id. ¶ 16. In support of Amfit’s
14 position, it has submitted two disciplinary warnings, four written warnings, and Yebra’s
15 termination letter. Id., Exhs. 3–5. Although Yebra concedes that she made mistakes, she
16 declares that other co-workers, such as Tracey and Josiah, also made similar mistakes.
17 Dkt. 25, Declaration of Estrella Yebra (“Yebra Dec.”), ¶¶ 8–12. Yebra bases her claims
18 for discrimination on the allegations that she was unfairly punished for mistakes that
19 everyone made, but for which only she received reprimands. Id. ¶ 20. Yebra also
20 contends that she was subjected to adverse employment actions such as lower raises and
21 having to do manual labor. Id. ¶ 26. With regard to retaliation, Yebra claims that she
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1 was retaliated against for reporting co-worker Dan’s harassment of her and other
2 employees. Id. ¶¶ 23–24.
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In February 2013, Amfit experienced a downturn in business and was forced to lay

4 off three employees. Catchings Dec., ¶ 20. Mr. Catchings chose to terminate Yebra
5 because of her below average work quality. Id., Exh. 5.
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III. DISCUSSION

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Amfit moves for summary judgment on all of Yebra’s claims. Dkt. 18.

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Summary Judgment Standard

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Summary judgment is proper only if the pleadings, the discovery and disclosure

10 materials on file, and any affidavits show that there is no genuine issue as to any material
11 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
12 The moving party is entitled to judgment as a matter of law when the nonmoving party
13 fails to make a sufficient showing on an essential element of a claim in the case on which
14 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,
15 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,
16 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.
17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must
18 present specific, significant probative evidence, not simply “some metaphysical doubt”).
19 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists
20 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or
21 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477
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1 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
2 626, 630 (9th Cir. 1987).
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The determination of the existence of a material fact is often a close question. The

4 Court must consider the substantive evidentiary burden that the nonmoving party must
5 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477
6 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual
7 issues of controversy in favor of the nonmoving party only when the facts specifically
8 attested by that party contradict facts specifically attested by the moving party. The
9 nonmoving party may not merely state that it will discredit the moving party’s evidence
10 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.
11 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,
12 nonspecific statements in affidavits are not sufficient, and missing facts will not be
13 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).
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Discrimination

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Under Title VII, an employer may not discriminate against a person with respect

16 to her “terms, conditions, or privileges of employment” because of her “race, color,
17 religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). To establish a prima facie case
18 of discrimination under Title VII, a plaintiff must provide evidence that gives rise to an
19 inference of unlawful discrimination. Texas Dept. Of Comm. Affairs v. Burdine, 450 U.S.
20 248, 253 (1981). A Title VII plaintiff alleging discriminatory treatment may prove her
21 case through circumstantial evidence, following the burden shifting framework in
22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Washington courts have

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1 largely adopted the burden shifting scheme announced in McDonnell Douglas to claims
2 of employment discrimination cases brought under the WLAD. See Grimwood v.
3 University of Puget Sound, 110 Wn.2d 355, 362 (1988) (applying the McDonnell
4 Douglas test to claim of employment discrimination brought under WLAD); Coghlan v.
5 American Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005) (noting Washington's
6 employment discrimination law largely parallels federal law under Title VII, and so
7 treatment of a plaintiff’s Title VII claim thus applies also to his similar claim under the
8 WLAD); Hernandez v. Space Labs Medical Inc., 343 F.3d 1107 (9th Cir. 2003) (applying
9 McDonnell Douglas burden shifting test to sex discrimination claim brought under Title
10 VII and the WLAD).
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Under the McDonnell Douglas framework, plaintiff must offer evidence

12 supporting a prima face case of unlawful discrimination. McDonnell Douglas, 411 U.S.
13 at 802. If she succeeds, the burden shifts to defendant to produce evidence of a lawful
14 motive for terminating her. Id. If defendant succeeds, plaintiff is obligated to produce
15 evidence that defendant’s stated lawful motive is pretext. Id. at 804. If there is sufficient
16 evidence of pretext to establish questions of material fact, the case must go to the jury.
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In this case, Yebra alleges discrimination based on her sex, skin color, and

18 national origin. Under McDonnell Douglas, unlawful discrimination is presumed if the
19 plaintiff can show that “(1) she belongs to a protected class, (2) she was performing
20 according to her employer’s legitimate expectations, (3) she suffered an adverse
21 employment action, and (4) other employees with qualifications similar to her own were
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1 treated more favorably.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.
2 1998) (citing McDonnell Douglas, 411 U.S. at 802).
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With regard to her burden to submit evidence establishing a prima facie case, she

4 barely, if at all, meets her burden. Yebra’s only evidence is her declaration in which she
5 asserts that she suffered disparate treatment by Mr. Garcia. First, Yebra claims that Mr.
6 Garcia reprimanded her “for mistakes that could have been made by Tracey, Josiah, or
7 any other employee who assisted in Milling and Covering.” Yebra Dec., ¶ 26(a). This is
8 not evidence of an adverse employment action because the mistake also “could have been
9 made” by Yebra as “another employee” who assisted in the particular department. This
10 is no more than a general allegation lacking specific details, and Yebra fails to meet her
11 burden of submitting “specific, significant probative evidence” to support her claim of
12 disparate treatment. Matsushita, 475 U.S. at 586.
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Second, Yebra claims that Mr. Garcia reprimanded her “for mistakes [she] did

14 make, but refusing to reprimand Tracey or Josiah for mistakes they made that [she]
15 observed and reported to him.” Yebra Dec., ¶ 26(b). While Yebra does provide two
16 specific types of mistakes that Tracy made (Id. ¶ 9), there is no evidence that Yebra was
17 reprimanded or that she suffered any adverse employment actions for these two specific
18 types of mistakes. Again, this is nothing but general allegations without specific
19 evidence.
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Third, Yebra claims that Mr. Garcia gave her “a smaller raise than Tracey or

21 Josiah received.” Id. ¶ 26(c). The two problems with this allegation is that she fails to
22 show that she was performing according to her employer’s legitimate expectations or that

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1 either Tracey or Josiah were similarly situated employees in terms of being able to obtain
2 the same raise.
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Fourth, Yebra claims that Mr. Garcia would allow “Tracey to perform the non-

4 manual labor tasks in Milling while [Yebra] performed all the manual labor tasks.” Id. ¶
5 26(d). Taking this fact in the light most favorable to Yebra, the Court agrees with Yebra
6 that this would establish a prima facie case of discrimination because Yebra was treated
7 differently than a similarly situated female employee.
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Fifth, Yebra claims that Mr. Garci allowed “Tracey and Josiah to frequently leave

9 our work area with no explanation and no warning, which required [Yebra] to perform
10 additional work.” Id. ¶ 26(e). Yebra fails to show that this is an adverse employment
11 action. Moreover, Yebra fails to show that she was entitled to an explanation or warning
12 for other employees’ actions. For example, Yebra does not allege that other employees
13 were allowed a short break every hour whereas Yebra was not allowed such a break.
14 Therefore, with the exception of the manual labor tasks, the Court concludes that Yebra
15 has failed to set forth a prima facie case of discrimination.
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With regard to Amfit’s burden, it has submitted sufficient evidence of legitimate,

17 nondiscriminatory reasons for its actions. For example, Mr. Catchings declares that
18 Tracey was not required to perform manual labor because of a perceived disability that
19 Amfit accommodated (Dkt. 33) and Josiah required frequent breaks due to his advanced
20 age (Catchings Dec., ¶ 31). Moreover, Amfit has submitted significant evidence that the
21 reasons for the reprimands and the termination were due to Yebra’s substandard
22 performance of her duties. Dkt. 20, Exhs. 3–6 (Yebra’s disciplinary notices and

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1 notification of termination because of below average work quality). Therefore, the Court
2 finds that Amfit has met its burden on this issue.
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With regard to pretext, Yebra has submitted evidence to establish material

4 questions of fact whether Amfit’s declared reasons are pretextual. Yebra argues that
5 pretext may be “established when (1) an employee outside the protected class, (2)
6 committed acts of comparable seriousness, but (3) was not disciplined.” Johnson v.
7 Dep’t of Soc. & Health Servs., 80 Wn. App. 212, 227 (1996). “Even if the defendant
8 articulates a legitimate, nondiscriminatory reason for the challenged employment
9 decision . . . summary judgment is normally inappropriate.” Id. (quoting Sischo10 Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991),
11 abrogated on other grounds by statute as stated in Dominguez–Curry v. Nev. Transp.
12 Dept., 424 F.3d 1027 (9th Cir. 2005)). “While some distinctions could be drawn between
13 the behavior of the comparator and [plaintiff], they are insufficient to defeat a reasonable
14 inference that [plaintiff] was disciplined in part due to race.” Johnson, 80 Wn. App. at
15 230.
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In this case, Yebra has submitted a minimal amount of evidence to raise questions

17 of fact regarding pretext. Yebra declares that both Tracey and Josiah made the same
18 mistakes Yebra made, but that they were not similarly punished or reprimanded. Yebra
19 Dec. ¶¶ 12, 20. Where the evidence creates “reasonable but competing inferences of both
20 discrimination and nondiscrimination,” a factual question for the jury exists. Id. (citing
21 Carle v. McChord Credit Union, 65 Wn. App. 93, 102 (1992)). In the context of
22 competing inferences, the Court is unable to conclude that no reasonable juror could find

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1 for Yebra. The Court recognizes that Yebra’s evidence is somewhat conclusory lay
2 opinion testimony based upon her personal observation and little if nothing else.
3 However, the Ninth Circuit has repeatedly cautioned that summary judgment is normally
4 inappropriate in employment discrimination cases. See, e.g., Merced, 934 F.2d at 1111.
5 Therefore, the Court concludes that material questions of fact exist on Yebra’s disparate
6 treatment claims and denies Amfit’s motion on these claims.
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Negligence

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In Washington, a negligence claim that is based on the same facts as

9 discrimination claims should be dismissed as a matter of law because they are
10 duplicative. See Ellorin v. Applied Finishing, Inc., 996 F. Supp. 2d 1070, 1093–94 (W.D.
11 Wash. 2014). Yebra admits that her negligence claim is based on the same alleged facts
12 as her discrimination claims, but argues that the negligence claim should survive because
13 there are material questions of fact on each discrimination claim. Dkt. 24 at 13. This
14 argument is without merit because, regardless of the merits of Yebra’s discrimination
15 claims, the negligence claim is duplicative. Therefore, the Court grants Amfit’s motion
16 on Yebra’s negligence claim.
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Retaliation

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In this case, Yebra argues that Amfit retaliated against her when it suspended her

19 for reporting Dan’s harassment. Dkt. 24 at 12–13. In Washington, Yebra must prove
20 that (1) she engaged in statutorily protected opposition activity, (2) an adverse
21 employment action was taken, and (3) a causal link between the former and the latter.
22 Delahunty v. Cahoon, 66 Wn. App. 829, 839 (1992). Under federal law, Yebra must

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1 show that she would not have been suspended but for reporting the alleged harassment.
2 Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013). Yebra fails to
3 meet either burden.
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On this issue, the parties dispute whether Yebra engaged in protected activity. In

5 its opening brief, Amfit argued that Yebra failed to show that Dan’s harassment was
6 because of Yebra’s sex, national origin, or skin color. Dkt. 18 at 19–20. In response,
7 Yebra submitted a declaration in which she claims that Dan’s harassment toward her was
8 “more aggressive and hostile” than toward other male employees at Amfit. Yebra Dec. ¶
9 24. Even if this was true, this fact does not show that Yebra conveyed such information
10 to Amfit. In other words, Yebra has failed to show that she engaged in the protected
11 activity of reporting harassment based on the protected characteristic of sex. Therefore,
12 the Court grants Amfit’s motion for summary judgment on Yebra’s retaliation claim.
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IV. ORDER
Therefore, it is hereby ORDERED that Amfit’s motion for summary judgment

15 (Dkt. 18) is GRANTED in part and DENIED in part as stated herein.
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Dated this 21st day of August, 2015.

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BENJAMIN H. SETTLE
United States District Judge

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