Lincoln v. State Farm Mutual Automobile Insurance Company
Filing
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ORDER granting in part and denying in part 15 Motion for Summary Judgment. Signed by Judge Robert J. Bryan. (JL)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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CASE NO. 3:17-cv-05177-RJB
MARIANNE LINCOLN,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
ORDER ON DEFENDANT STATE
FARM AUTOMOBILE
INSURANCE COMPANY’S
MOTION FOR SUMMARY
JUDGMENT
Defendant.
THIS MATTER comes before the Court on Defendant State Farm Automobile Insurance
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Company’s Motion for Summary Judgment. Dkt. 15. The Court has considered the pleadings
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filed in support of and in opposition to the motion and the file herein.
I.
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BACKGROUND
A. PROCEDURAL HISTORY
Plaintiff filed this employment action in Pierce County, Washington on October 6, 2016.
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Dkt. 1-3. Defendant removed the case to this Court on March 10, 2017. Dkt. 1. Defendant has
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cited diversity jurisdiction as the basis for this Court’s subject matter jurisdiction, because
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Plaintiff resides in the State of Washington, Defendant is incorporated in the State of Illinois, and
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 1
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Plaintiff has asserted general damages “between $200,000 and $250,000.” Dkt. 2 at ¶4; Dkt. 1-13
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at ¶¶4.1, 4.2.
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The Amended Complaint (Dkt. 1-13), which controls, alleges gender, disability, and age
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discrimination in violation of the Washington Law Against Discrimination (WLAD). Dkt. 1-13
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at ¶¶6.1-6.4. See RCW 49.60 et seq. The Amended Complaint alleges three WLAD
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discrimination claims, for Disparate Treatment, Hostile Work Environment, and Unlawful
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Retaliation. Id. at ¶¶6.1-6.3. The Amended Complaint also alleges a common law claim for
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Wrongful Discharge. Id. at ¶6.4.
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B. FACTS
The Court recites the relevant facts substantiated by the record in the light most favorable
to Plaintiff.
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1. Ms. Lincoln’s initial employment under Team Manager Matt Dyk.
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State Farm hired Ms. Marianne Lincoln as a Claims Associate, level PA2, in September
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of 2013. Dkt. 16-1 at 60. As a Claims Associate, Ms. Lincoln processed insurance claims, a task
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that involved gathering information from policyholders and auto repair shops by phone and
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making liability determinations up to a certain amount. Dkt. 16-1 at 13-15. Prior to going “live”
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on December 9, 2013, Dkt. 16-1 at 209, Ms. Lincoln received about two months of training. The
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training explained various State Farm policies, including the Standard Claim Procedures (SCPs),
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an internal, written database used by claims associates to handle certain situations in a certain
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way. Dkt. 16-1 at 8, 9.
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Ms. Lincoln began work under Team Manager Carolyn Price. Dkt. 16-1 at 64-67. State
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Farm transferred Ms. Lincoln to a team managed by Mr. Matt Dyk at some point prior to
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September 25, 2014. See Dkt. 16-1 at 74. In addition to receiving annual reviews, see, e.g., Dkt.
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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16-1 at 64-72, Ms. Lincoln received work performance feedback from Customer Interaction
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Reviews (“CIRs”), evaluations from non-team members listening to conversations without
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notice, Dkt. 16-1 at 11, and from “one-on-one” observation sessions with Team Managers. Dkt.
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16-1 at 12. Mr. Dyk’s notes from a September 25, 2014 one-on-one session with Ms. Lincoln
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state: “We talked about AHT [Average Handling Time] and trying to get it down a bit. Talked
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about sticking to the SCPs [Standard Claim Procedures] and not giving any other advice during
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the call.” Dkt. 16-1 at 74.
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Ms. Lincoln asked Mr. Dyk for a promotion from Claims Associate level PA2 to PA3, a
promotion that would increase wages but not responsibilities. Dkt. 23 at 2. Mr. Dyk denied the
request but told her that she was “within a couple weeks” of the promotion. Id. at 2, 3.
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2. Ms. Lincoln’s employment under Team Manager Rosa Kong.
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Ms. Lincoln was transferred to a team managed by Ms. Rosa Kong on May 18, 2015.
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Dkt. 16-1 at 6. Within the first month of Ms. Kong’s tenure as team manager, Ms. Lincoln
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recalls Ms. Kong commenting at a team meeting that older team members “were used to being
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more ‘friendly’ on the phone and therefore took longer on calls than younger employees [sic]
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since they had not developed that habit yet,” a fact supported by “HR studies conducted.” Dkt.
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23 at 4. See also, Dkt. 21-1 at 4.
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Ms. Kong began weekly one-on-one meetings with Ms.Lincoln a couple weeks after the
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transition, on May 28, 2015. Dkt. 16-1 at 209. Ms. Kong relied upon several metrics to evaluate
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the performance of her team, including the Standard Claim Procedures; Average Handling Time
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(AHT), the average the length of calls; and Task Productivity Rate (TPR), the total number of
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“tasks” accomplished per day. See, e.g., Dkt. 23-14. According to Ms. Lincoln, on July 10, 2015,
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and again on July, 2015, Ms. Kong’s one-on-one meetings singled out Ms. Lincoln for technical
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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violations of the Standard Claim Procedures not also enforced against others. Dkt. 23 at 6. Ms.
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Kong’s notes to the July 10, 2015 session state that Ms. Lincoln “continues to demonstrate
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remarkable behaviors with every interaction per CIR scores,” but “we have discussed quality
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concerns and the importance of SCP adherence. AHT has improved[.]” Dkt. 16-1 at 99.
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On July 20, 2015, another manager emailed Ms. Kong that he had received a complaint
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by an associate of an “outburst” incident by Ms. Lincoln, where Ms. Lincoln pounded her fist on
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her desk and loudly stomped her feet. The manager had handled the situation by asking Ms.
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Lincoln to “be more self-aware and conscientious of those around her.” Dkt. 16-1 at 106. On
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July 21, 2015, Ms. Kong spoke with Ms. Lincoln about the incident, and according to Ms. Kong,
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Ms. Lincoln acknowledged personal stress, but stated that “personal issues . . . have not affected
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her quality production and the lack of focus.” Dkt. 16-1 at 108.
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On July 22, 2015, Ms. Kong sent an email to recap the “conversation of yesterday July
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21st, 2015 and to highlight a few sequence of events that have led up to our performance
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discussion.” Dkt. 16-1 at 112. Ms. Lincoln responded to Ms. Kong’s email and expressed that
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receiving Ms. Kong’s email “caused me to panic . . . [i]n the light of 2 women over 50 on our
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team being let go recently . . . [because] I, too am similar in profile (over 50).” Id. 110-112. Ms.
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Kong sympathized that Ms. Lincoln “fe[lt] singled out,” but doubled down on her opinion that
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Ms. Lincoln’s was “completely unprofessional and unacceptable.” Id. at 114. Ms. Kong
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commented that “[a]s for terminations in the past, it has nothing to do with your allegations and
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due to private reasons I’m not at liberty to discuss their performance[.]” Id. at 114.
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On September 24, 2015, Ms. Kong “[c]ompleted file reviews to measure [Ms. Lincoln’s]
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SCP adherence due to her PA3 interest,” but “file reviews completed indicated she was not
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consistently adhering to SCPs.” Dkt. 16-1 at 211. Ms. Kong “advised I would continue to
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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monitor [Ms. Lincoln’s] SCP adherence[.]” Id. Ms. Kong’s notes to a September 25, 2015 one-
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on-one meeting similarly state, “advised we were going to review her PA3 candidacy.” Dkt. 16-1
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at 131.
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On October 2, 2015, Ms. Kong emailed Ms. Lincoln about a Customer Interaction
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Review (CIR), where the CIR team had flagged an inappropriate conversation between Ms.
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Lincoln and a customer. Dkt. 16-1 at 133. According to the CIR, “[d]uring this call, the customer
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mentioned he would take the [customer satisfaction] survey if this would help with a raise for the
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associate,” and Ms. Lincoln responded to the customer by stating, “I’m kinda hanging on the
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edge of my seat on that one. They opened up this center two years ago and there’s a bunch of
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us[.]” Id. at 135. Ms. Lincoln emailed Ms. Kong at 2:52pm, apologizing for the negative CIR and
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conveying that she was “not in a good place to discuss [the CIR] at this time” because she felt
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overwhelmed. Dkt. 16-1 at 139. Ms. Lincoln reported “trying to keep [herself[ together . . . to get
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[her] affairs in order regarding logics for the surgery.” Id. A 3:36pm email from another
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manager to Ms. Kong reported Ms. Lincoln venting frustration about the negative CIR and
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meager prospects of a PA3 promotion, because, “who would promote someone who’s about to
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go on medical leave.” Id. at 141. Ms. Lincoln first notified Ms. Kong of her need for medical
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leave on October 2, 2015. Dkt. 23 at 9; Dkt. 21-2 at 33.
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While out on leave, which began on October 6, 2015, on October 20, 2015, Ms. Lincoln
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called Ms. Holly Williams (HR). Ms. Williams’ notes reflect that Ms. Lincoln expressed her
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frustrations with Ms. Kong and requested a new manager. Dkt. 16-1 at 148. According to Ms.
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Williams’ notes, she discussed with Ms. Lincoln State Farm’s “expectation that she is to work
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for any manager.” Id. The conversation also included discussion of Plaintiff’s medical leave, and
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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Ms. Williams “discussed ADA and if [Ms. Lincoln] needed anything to let Rosa [Kong] know
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when she returns[.]” Id.
Ms. Lincoln returned to work from leave on November 16, 2015. Dkt. 23 at 9, 10. On
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December 9, 2015, Ms. Kong drafted a work performance memo about Ms. Lincoln, referred the
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parties as a “drop file memo.” Dkt. 16-1 at 154-155. The drop file memo outlined a series of
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work performance concerns by Ms. Kong. Id. Ms. Kong signed the memo, but Ms. Lincoln
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refused to sign. See id. Cynthia Jones, HR, and “Supervisor Drop File” were copied in the
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correspondence. Id. Ms. Lincoln comprehensively responded to the drop file memo by email on
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December 17, 2015. Dkt. 16-1 at 164-167. Around that time, on December 6, 2015, Ms. Kong
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also informed Ms. Lincoln that she was no longer authorized to take overtime shifts. Dkt. 23 at
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On December 17, 2015, Ms. Kong reprimanded Ms. Lincoln for typing on her personal
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laptop. Ms. Kong recalls that Ms. Lincoln responded by raising her voice and saying, “Go away
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and leave me alone! Do you want me to finish the training or not?” Dkt. 16-1 at 214. Ms. Kong
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“[c]onsulted with leadership and Human Resources who made the decision to place [Ms.
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Lincoln] on Paid Administrative Leave.” Dkt. 16-1 at 214.
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Ms. Lincoln was placed on paid administrative leave from December 17, 2015 until
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January 6, 2016. Dkt. 23 at 14, 15. At a January 13, 2016 one-on-one meeting, Ms. Kong
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reprimanded Ms. Lincoln for “cherry picking” tasks to improve the appearance of her speed,
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though in Ms. Lincoln’s view, she was exercising discretion to economize her tasks. Id. Ms.
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Kong sent an email on January 13, 2016 recapping her view that Ms. Lincoln had made no
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progress in improving her adherence to the SCPs. Dkt. 16-1 at 205-206. Ms. Lincoln responded
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to the email by rejecting Ms. Kong’s accusations. Dkt. 16-1 at 206.
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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3. State Farm’s termination of Ms. Lincoln’s employment.
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On January 20, 2016, Ms. Kong by email recommended terminating Ms. Lincoln to
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“upper leadership,” comprised of Ms. Jones (HR), Don Bright, and Javier Ray. Dkt. 21-2 at 33.
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According to Ms. Kong, her recommendation was based “strictly on performance,” as well as
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misconduct, to wit, Ms. Lincoln’s disruptive and insubordinate behavior. Dkt. 21-2 at 38, 41. In
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Ms. Kong’s view, three incidents supported the misconduct conclusion: (1) the outburst incident,
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(2) the personal laptop incident, and (3) the cherry pick incident. Dkt. 21-2 at 38.
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Ms. Kong’s January 20, 2016 email recommended immediate employment termination
for “Misconduct.” Dkt. 16-1 at 218. The email states:
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[Ms. Lincoln] has not shown a consistent ability to accept feedback, implement the
feedback, and maintain professionalism in the work environment. [Ms. Lincoln] has been
provided multiple coaching opportunities, feedback, and job shadows to help her
consistently achieve expectations. She has disregarded and chosen not to implement
specific job performance related feedback with regards to her customer interactions and
adherence to the Standard Claim Processes (SCPs). This has resulted in instances of
insubordination on the work floor which was overheard by and disruptive to the team[.]
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Dkt. 16-1 at 218. The email also narrated a summary of “recent events,” from December 9, 2015
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until December 12, 2015, including a December 12, 2015, incident where Ms. Kong
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“[c]onducted weekly side by side observation . . . [and] observed [Ms. Lincoln] filtering through
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task work and cherry picking easier tasks.” Id. at 219. According to Ms. Kong, Ms. Lincoln
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“stated that she disagreed” with that policy and refused to comply, by continuing to filter through
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task work, completing easier tasks first. Id.
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At a meeting on January 22, 2016, attended by Ms. Lincoln, Ms. Kong, Ms. Williams
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(HR), and another manager, Ms. Kong informed Ms. Lincoln of her termination because
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performance had fallen below expectations, where “most recently in a [one-on-one] she refused
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to cease cherry picking and follow the SCPs [Standard Claims Procedure].” Dkt. 16-1 at 222.
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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Ms. Lincoln remarked at the meeting that she was “leaving under a lie” and denied cherry
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picking. Id.
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4. Ms. Lincoln’s discrimination complaints
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On October 14, 2015, Ms. Lincoln filed an EEOC age discrimination complaint with the
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Washington State Human Rights Commission. Dkt. 16-1 at 145-146. The EEOC claim
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represents that Ms. Lincoln, age 58, was denied a promotion and raise because of age
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discrimination. Id. According to the EEOC complaint, “a major change was made in the way that
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we process claims and . . . my Team Leader kept moving the target and telling me that I still
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could not get a promotion and a raise. . . find[ing] fault with my performance in subject areas.”
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Id. Five employees in the “Protected Age Group have been let go, while three employees under
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the age of 30 have received promotions and/or raises.” Id.
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On January 14, 2016, Ms. Lincoln filed a second EEOC complaint, alleging age and
gender discrimination. Dkt. 21-2 at 34.
In addition to the EEOC complaints, Ms. Lincoln filed an internal State Farm complaint
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with the State Farm Compliance and Ethics Hotline. A State Farm Case Detail Report narrates
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Ms. Lincoln’s concern, raised on December 17, 2015, as follows:
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Caller states caller is reporting retaliation. Caller states caller 58 years old, and caller is
on a team of about 12 people. Caller states four people have been eliminated from this
team, and they are all over the age of 50. Caller states when caller announced . . . back
surgery, Rosa Kong changed how Rosa approached caller, and Rosa started attacking
caller’s performance . . . Caller is afraid of fired . . . needs overtime pay to pay medical
bills.
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Dkt. 16-1 at 169. The follow-up comment to the Case Detail Report, dated December 18, 2015,
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states, “As the investigation is completed, we will provide an update to this site indicating the
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status of the investigation. Id. at 171. A second follow-up comment, dated December 29, 2015,
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states, “Caller is calling for a management response. Specialist reads caller the management
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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response. Caller states there is more going on . . . Caller states caller is on leave. Caller thanks
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specialists, leaves no further comments, and ends call.” Id.
On December 22, 2015, Evelynn Hurdman, Employee Relations Investigator,
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interviewed Ms. Lincoln about “some concerns recently brought forward.” Dkt. 16-1 at 176. Ms.
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Hurdman also interviewed Mr. Dyk and another manager. Dkt. 16-1 at 185-190, 194. Ms.
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Hurdman did not interview Ms. Kong, because, in her view, the allegations of discrimination and
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retaliation against Ms. Lincoln were “not substantiated [] [a]s the evidence provided to [sic] do
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not indicate behavior . . . rose to the level of a policy violation she was not interviewed.” Id. at
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194.
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5. Termination of employment for other members of Ms. Kong’s team.
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Including Ms. Lincoln, Ms. Kong’s team had twelve people, eight of whom were over
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age fifty (50), including Ms. Lincoln. 21-1 at 29; Dkt. 22 at ¶3; Dkt. 23 at 3. The other four
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people were under age thirty (30). Id. Three of those four had previously received level PA3
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promotions, and the fourth was promoted under Ms. Kong’s management. Id.
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Between June of 2015 and January of 2016, State Farm terminated six Claims Associates
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from Ms. Kong’s team, all of whom were over the age of fifty (50): Lori Chavez (June 2015),
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Mary Huff (July 2015), Rene Sherry (August 2015), Kristine Morley (September 2015), Ms.
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Lincoln (January 2016), and Jim Shea (January 2016). Dkt. 21-2 at 38, 39; Dkt. 23 at 5. State
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Farm terminated them ostensibly because none of them showed “any immediate or sustained
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improvement.” Id. State Farm also terminated Susan Hamilton, age 61, in May 2015, during the
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manager transition from Mr. Dyk to Ms. Kong. Dkt. 23 at 5.
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In the opinion of Katheryn Vazquez, a member of Ms. Kong’s team who “did not want to
draw the conclusion that someone was singling out people over 40[,]” employees over age forty
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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(40) “appeared to be coached differently[.]” Dkt. 21-1 at 4, 9. The younger employees were
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“held up as examples to us in areas where we struggled.” Id. Mr. Shea, age sixty, who was
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terminated approximately one week after Ms. Lincoln, testified that Ms. Kong “had a strong
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dislike of being challenged. I believe that the older people on our team . . . challenged her . . .
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[and] she didn’t’ like that.” Dkt. 21-1 at 21. According to Ms. Shea, “[n]ewly trained employees
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were brought in as replacements, with only one being over 40.” Dkt. 22 at ¶6. See also, Dkt. 21-2
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at 24.
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II.
DISCUSSION
A. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, the discovery and disclosure materials
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on file, and any affidavits show that there is no genuine issue as to any material fact and that the
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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c).The moving party is
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entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient
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showing on an essential element of a claim in the case on which the nonmoving party has the
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burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of
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fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for
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the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
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(1986)(nonmoving party must present specific, significant probative evidence, not simply “some
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metaphysical doubt.”). See also Fed. R. Civ. P. 56 (d). Conversely, a genuine dispute over a
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material fact exists if there is sufficient evidence supporting the claimed factual dispute,
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requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors
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Association, 809 F.2d 626, 630 (9th Cir. 1987).
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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The determination of the existence of a material fact is often a close question. The court
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must consider the substantive evidentiary burden that the nonmoving party must meet at trial –
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e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect.
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Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor
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of the nonmoving party only when the facts specifically attested by that party contradict facts
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specifically attested by the moving party. The nonmoving party may not merely state that it will
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discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial
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to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra).
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Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not
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be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
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B. WLAD CLAIMS GENERALLY
The WLAD prohibits discrimination based on sex1, physical disability, and age, inter
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alia. RCW 49.60.010. At summary judgment, where, as here, the plaintiff does not make a
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showing of direct discrimination2, courts apply the three-part McDonnell Douglas burden-
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shifting framework. Scrivner v. Clark College, 181 Wn. 2d 439, 445 (2014). First, the plaintiff-
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employee must make a prima facie showing of discrimination. If the plaintiff-employee makes a
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sufficient showing, second, the defendant-employer must show a legitimate, non-discriminatory
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reason for its adverse employment action. If the defendant-employer makes a sufficient showing,
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thirdly, the plaintiff-employee must show that the defendant-employer’s reason was pretext.
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To show pretext, “[a]n employee does not need to disprove each of the employer’s
reasons[.]” Scrivener, 181 Wn. 2d at 447. Instead, the plaintiff may satisfy the pretext prong by
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The Amended Complaint alleges gender discrimination. The WLAD defines “sex” as “gender.” RCW
49.60.040(25).
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The only reference to direct discrimination appears to be a cut and paste job. See Dkt. 20 at 16, 17.
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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showing that the defendant’s articulated reason had no basis in fact, was not really a motivating
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factor, was not temporally connected to the adverse employment action, or was not a motivating
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factor in the employment decision for other employees in the same circumstances. Id. at 447-48
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(2014). The plaintiff may also satisfy the pretext prong by showing that discrimination was a
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substantial motivating factor. “Substantial factor” refers to a significant motivating factor, not
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necessarily the sole or main one. Id. at 444; Washington Pattern Jury Instructions, 330.01.01 (6th
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ed. 2012). “When the record contains reasonable but competing inferences of both discrimination
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and nondiscrimination, the trier of fact must determine the true motivation.” Id. at 445,
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summarizing Rice v. Offshore Systems, Inc., 167 Wn. App. 77 (2012).
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C. DISPARATE TREATMENT
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1. Prima facie case.
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“Disparate treatment occurs when an employer treats some people less favorably than
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others because of . . . [a] protected status.” Alonso v. Qwest Communications Co., LLC, 178 Wn.
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App. 734, 743 (2013). The prima facie disparate treatment claim for discrimination has four
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elements: (1) that the employee-plaintiff belongs to a protected class, (2) was subject to an
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adverse employment action, (3) was doing satisfactory work, and (4) the employer-defendant
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replaced the plaintiff-employee with a person not of that protected class, or sought applicants
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with similar qualifications to the employee-plaintiff. Mikkelsen v. PUD No. 1 of Kittitas Cty.,
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189 Wn. 2d 516, 527 (2017) (age and gender). See also, Riehl v. Foodmaker, Inc., 152 Wn. 2d
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138, 149 (2004)(disability3).
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Mikkelson clarified the fourth element, known as the “replacement element,” for discrimination cases generally. It
arguably overrules Riehl in part as to the fourth element.
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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The first element is satisfied where it undisputed that Ms. Lincoln is a member of classes
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protected by the WLAD, as a female, age 58, with ongoing medical issues. Also for purposes of
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this motion, Defendant does not dispute the second element, “adverse employment action,”
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because State Farm terminated Ms. Lincoln’s employment. Dkt. 24 at 11. See also, Kirby v. City
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of Tacoma, 124 Wn.App. 454, 465 (2004). Defendant challenges Plaintiff’s showing as to the
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third and fourth elements. The third element, satisfactory work, is satisfied by viewing
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performance metrics in a light favorable to Plaintiff. Although Ms. Kong repeatedly pointed to
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problems with Ms. Lincoln’s performance, Ms. Lincoln at times out-performed colleagues on
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metrics such as Average Handle Time and Task Productivity Rate. See, e.g., Dkt. 23-14.
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The fourth element examines whether State Farm replaced Ms. Lincoln with a person
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outside of her protected classes (female, over age forty, with ongoing medical issues), or at least
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sought applicants with qualifications similar to Ms. Lincoln. Mikkelsen, 189 Wn. 2d at 527. See
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Grimwood, 110 Wn.2d 355, 362 (1988). According to Mr. Shea, age sixty, at the time of his
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termination on January 29, 2016, “5 other women over 40 had already been terminated from the
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team [and] [n]ewly trained employees were brought in as replacements, with only one being over
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40.” Dkt. 22 at ¶6. See also, Dkt. 21-2 at 24. Mr. Shea’s declaration is sufficient for purposes of
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the claim for disparate treatment based on age.
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However, Plaintiff has not pointed to—and the Court is aware of no evidentiary showing
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for—a similar showing for the fourth element for sex and disability discrimination. See Dkt. 20
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at 18-21. A showing for the fourth element would consider, e.g., whether State Farm replaced
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Ms. Lincoln with male employees and employees without ongoing medical issues, or whether
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State Farm solicited applications from persons of similar background and qualification to Ms.
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
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Lincoln. Because Plaintiff has not made a showing as to the fourth element, Defendant’s motion
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should be granted in part as to the claim for disparate treatment based on sex and disability.
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2. Legitimate, non-discriminatory reason for employment termination.
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The Court next considers Defendant’s showing of a legitimate, non-discriminatory reason
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for State Farm’s termination of Ms. Lincoln’s employment. State Farm ostensibly terminated
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Ms. Lincoln on two grounds, performance and misconduct. Perhaps the most distilled summary
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of the basis for termination is Ms. Kong’s December 9, 2015 drop memo, which articulated a
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series of performance problems, and Ms. Kong’s January 20, 2016 email, which recommended
9
termination for misconduct. Dkt. 16-1 at 154, 218. Defendant has met its burden.
10
3. Pretext.
11
Finally, the Court turns to the showing of pretext, a burden Plaintiff has met. Over the
12
course of about six months, on Ms. Kong’s team of twelve people, State Farm terminated six
13
people, including Ms. Lincoln, over the age of fifty. Dkt. 21-1 at 29; Dkt. 22 at ¶3; Dkt. 23 at 3.
14
At a team meeting less than one month into Ms. Kong’s tenure, Ms. Kong commented that older
15
team members were used to being friendlier on the phone and took longer than younger
16
employees. Dkt. 23 at 4. See Dkt. 21-1 at 4; Dkt. 21-1 at 30; 21-2 at 4, 28. Ms. Kong coached
17
older employees differently than younger ones, and presented the work of younger employees as
18
exemplary to older ones. Dkt. 21-1 at 4, 9; Dkt. 21-2 at 6. State Farm gave younger employees
19
more opportunities for mentorship and promotion, Dkt. 21-2 at 17, 18, 24; Dkt. 23-3 at 3, and
20
increased wages of four members of Ms. Kong’s team under the age of thirty. Dkt. 22 at ¶3; Dkt.
21
23 at 3. Viewing these facts together in the light favorable to Plaintiff at a minimum reasonably
22
points to competing inferences of age discrimination and nondiscrimination. Notwithstanding
23
Defendant’s argument that all of the terminated team members also had glaring work
24
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 14
1
performance issues, Dkt. 24 at FN10, Plaintiff has met her burden to show pretext, because a
2
reasonable trier of fact could find that age was a substantial factor motivating the termination of
3
Ms. Lincoln’s employment.
4
Defendant’s motion should be granted in part and the claim dismissed as to disparate
5
treatment based on sex and disability, because Plaintiff has not met her prima facie burden.
6
Defendant’s motion should otherwise be denied. The claim for disparate treatment based on age
7
may proceed.
8
9
D. UNLAWFUL RETALIATION
The prima facie case of unlawful retaliation requires a showing that (1) the employee-
10
plaintiff engaged in a statutorily protected activity, (2) the employee-plaintiff suffered an adverse
11
employment action, and (3) there is a causal link between the activity and the adverse action.
12
Marin v. King County, 194 Wn. App. 795, 811 (2016). See also, Short v. Battle Ground School
13
Dist., 169 Wn. App. 188 (2012), overruled in part on other grounds. To prove a causal link, the
14
plaintiff must provide evidence that the protected activity was a substantial factor motivating the
15
adverse action. Currier v. Northland Services, Inc., 182 Wn. App. 733, 746 (2014). “Thus,
16
retaliation need not be the main reason . . . but instead only be the reason that ‘tips the scales’”
17
towards the adverse action. Id.
18
For purposes of Plaintiff’s prima facie burden, the first element of protected activity is
19
satisfied, given that Plaintiff filed three discrimination complaints. See, e.g., Estevez v. Faculty
20
Club of the Univ. of Wash., 129 Wn. App. 774, 778 (2005). Defendant appears to concede this
21
element. See Dkt. 15 at 24 (Defendant “does not deny that Ms. Lincoln complained of
22
discrimination several times”). The second element is also satisfied, because as discussed above,
23
there is no dispute that terminating employment is an adverse employment action.
24
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 15
1
Considering the third element, causation, Plaintiff has not met her burden. Plaintiff’s
2
Response does not parse out specific facts for each element. Dkt. 20 at 22. The Response argues
3
generically that there is “more than ample evidence” of retaliation, pointing to just three facts:
4
(1) State Farm failed to interview Ms. Lincoln when conducting its internal investigation of her
5
age discrimination complaint; (2) Ms. Jones (HR) knew of Ms. Lincoln’s complaints, yet has
6
denied knowledge of them, which is “suspicious”; and (3) Ms. Kong “increased the negative
7
reviews, ‘tubed’ plaintiff’s attempts to promote or transfer. . . [and] ignored her discrimination
8
complaints . . . to set [Ms. Lincoln] up for bad performance and termination.” Id.
9
The first two facts, even if true, do not point to retaliation because of Ms. Lincoln filing
10
the EEOC and State Farm complaints. First, the fact that State Farm deliberately declined to
11
interview Ms. Lincoln when conducting its internal investigation does not tend to show an intent
12
to terminate Ms. Lincoln, but rather, at most, shows that State Farm protected its management
13
and believed management over others. Second, if Ms. Jones knew of Ms. Lincoln’s
14
discrimination complaints, it does not follow that Ms. Lincoln was terminated because she filed
15
them. The decision to terminate Ms. Lincoln was made by a team of three people, including Ms.
16
Jones, and there is no evidence that the two others knew of the complaints. In any event, mere
17
awareness is not enough of a showing for causation.
18
The third fact offered by Plaintiff focuses on Ms. Kong’s denial of (1) promotion and (2)
19
transfer and (3) negative reviews. This fact could potentially show causation of unlawful
20
retaliation, but only if this negative treatment increased after Ms. Lincoln filed her EEOC and
21
State Farm complaints. The record does not support this theory. (1) Ms. Lincoln was denied
22
promotion to PA3 by both Mr. Dyk and by Ms. Kong prior to the filing of the EEOC complaint
23
in October of 2015. Dkt. 16-1 at 211; Dkt. 23 at 2. (2) Ms. Lincoln requested to be transferred to
24
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 16
1
another supervisor, but Ms. Williams (HR) reiterated State Farm policy that employees were
2
expected to perform under any supervisor, Dkt. 16-1 at 148, and nothing in the record indicates
3
any basis to conclude that this policy was not consistently enforced. (3) Ms. Kong began meeting
4
with Ms. Lincoln for weekly one-on-one performance-related meetings, presumably the source
5
of what Plaintiff refers to as “negative reviews,” on May 28, 2015, approximately two weeks into
6
Ms. Kong’s tenure as a manager. Dkt. 16-1 at 209. The meetings continued until Ms. Lincoln’s
7
termination in January of 2016. Id. Negative reviews (Plaintiff), also known as constructive
8
criticisms, are apparent throughout the content of Ms. Kong’s reviews in every meeting, long
9
before Ms. Lincoln filed any discrimination complaints. See, e.g., Dkt. 16-1 at 99; Dkt. 23 at 6.
10
Plaintiff has not met her prima facie burden to show a causal nexus between the filing of
11
her discrimination complaints and the termination of her employment. Even if she could, this
12
claim would not survive summary judgment because of the insufficient showing of pretense.
13
Returning again to the three facts alleged in Plaintiff’s Response, see Dkt. 20 at 22, does not
14
make a pretense showing. Nor does examination of the record point to pretext. The most that
15
Plaintiff could point to is that Ms. Kong and Ms. Jones knew of Ms. Lincoln’s complaints and
16
were involved in the recommendation (Ms. Kong) and decision (Ms. Jones) to terminate
17
employment. Beyond the mere timing of events, e.g., the fact that Ms. Lincoln’s termination
18
followed the filing of her complaints, no other facts support the theory that Ms. Lincoln’s
19
complaints were a motivating factor to Ms. Kong, Ms. Jones, or anyone else involved in the
20
termination decision.
21
22
As to the unlawful retaliation claim, Plaintiff has not met her prima facie burden and has
made no showing of pretense. Defendant’s motion should be granted and the claim dismissed.
23
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 17
1
2
E. WRONGFUL DISCHARGE
Although Defendant has requested summary judgment of dismissal for all claims,
3
Defendant’s briefing does not directly discuss the wrongful discharge claim. See Dkt. 1-13 at
4
¶6.4; Dkt. 15 at 20:8-13, 22:16-20, 23:13-16, 24:1-4; Dkt. 24. Wrongful discharge or termination
5
is a distinct and discrete type of claim from a claim for unlawful retaliation. See, e.g,. Blinka v.
6
Wash. State Bar Ass’n, 109 Wn. App. 575 (2001). Whether this omission was strategic or an
7
oversight, Defendant has not met its burden to show summary judgment of dismissal.
8
Defendant’s motion should therefore be denied as to this claim.
9
F. HOSTILE WORK ENVIRONMENT
10
To establish a hostile work environment claim, a plaintiff must prove that harassment to
11
the plaintiff (1) was unwelcome, (2) was because the plaintiff is a member of a protected class,
12
(3) affected the terms and conditions of the plaintiff’s employment, and (4) was imputable to the
13
employer. Domingo v. Boeing, 124 Wn. App. 71, 84 (2004). Conduct affects the conditions of
14
employment “if it is sufficiently pervasive so as to alter the conditions of employment and create
15
an abusive working environment.” Glasgow v. Georgia-Pacific Corp., 103 Wn. 2d 401, 406
16
(1985). “Casual, isolated or trivial manifestations of a discriminatory environment” are legally
17
insufficient. Id. Courts look to the totality of the circumstances, such as: “the frequency and
18
severity of the discriminatory conduct; whether it was physically threatening or humiliating, or a
19
mere offensive utterance; and whether it unreasonably interference with an employee’s work
20
performance.” Washington v. Boeing Co., 105 Wn. App. 1, 10 (2000).
21
Applied here, Plaintiff has failed to show that State Farm’s harassment affected the terms
22
and conditions of her employment, the third element. Plaintiff’s showing is overwhelmingly
23
conclusory, where, after articulating the relevant law, Plaintiff first argues that “[i]n this case,
24
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 18
1
there is substantial evidence . . . that the plaintiff was the victim of a hostile work environment
2
due to her age and disability.” Dkt. 20 at 23.
3
Plaintiff next notes that, “[i]n a rather compressed period of time [Plaintiff] . . . was
4
subject to a wide variety of investigative actions and complaints which . . . surrounded the
5
manifestations of her age and/or disability within the work environment.” Dkt. 20 at 24. Plaintiff
6
does not specify the frequency or source of these investigative actions and complaints. From
7
further context in the briefing, it appears that Plaintiff may be referring to the high “volume and
8
intensity of actions taken against plaintiff following her back surgery,” where Ms. Kong “paid
9
extra attention to plaintiff, often marched to [Ms. Lincoln’s] desk to criticize her and . . . to try to
10
write up anything you do that she disagrees with[.]” Id. If so, Plaintiff’s theory is, in essence, that
11
Ms. Kong’s one-on-one reviews and intermittent “write ups” constituted age and disability
12
harassment that in their totality created a hostile work environment. However, Ms. Kong’s one-
13
on-one reviews occurred consistently approximately once per week. Ms. Kong’s write ups, such
14
as the December 9, 2015 drop memo, occurred only a handful of times over a period of several
15
months. Even if the reviews and write ups are construed as age and disability harassment, it
16
cannot be said that such “harassment” was pervasive, given this infrequency.
17
Nor can it be said that Ms. Kong’s one-on-one reviews and write ups were “severe,”
18
because their content plainly related to work performance, not Ms. Lincoln’s protected class, and
19
none made plain insults or threats to Plaintiff’s physical well-being. In their totality, the reviews
20
and write ups do not amount to a discriminatory environment. No trier of fact could find that
21
Defendant’s conduct constituted severe or pervasive harassment.
22
23
Plaintiff has not met her burden to show an issue of material fact as to whether age or
disability discrimination was sufficiently severe and pervasive to affect the terms of
24
ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 19
1
employment. Defendant’s motion should be granted as to the hostile work environment claim,
2
which should be dismissed.
***
3
4
Therefore, it is HEREBY ORDERED that Defendant State Farm Automobile Insurance
5
Company’s Motion for Summary Judgment (Dkt. 15) is GRANTED IN PART and DENIED IN
6
PART as follows:
7
8
1. Disparate treatment claim: The motion is granted in part as to a disparate
treatment claim based on sex discrimination and disability discrimination. To that
extent, the claim is dismissed. The motion is otherwise denied. The claim for
disparate treatment based on age discrimination may proceed.
9
2. Unlawful retaliation claim: The motion is granted. This claim is DISMISSED.
10
3. Wrongful discharge claim: The motion is denied.
11
4. Hostile work environment: The motion is granted. This claim is DISMISSED.
12
IT IS SO ORDERED.
13
The Clerk is directed to send uncertified copies of this Order to all counsel of record and
14
to any party appearing pro se at said party’s last known address.
15
Dated this 12th day of February, 2018.
16
17
18
19
A
ROBERT J. BRYAN
United States District Judge
20
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ORDER ON DEFENDANT STATE FARM AUTOMOBILE INSURANCE COMPANY’S MOTION FOR
SUMMARY JUDGMENT - 20
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