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RISPOLI v. KING COUNTY

November 3, 2005.

KAREN RISPOLI, Plaintiff,
v.
KING COUNTY, et al., Defendants.



The opinion of the court was delivered by: ROBERT LASNIK, District Judge

ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on "Defendants' Motion for Summary Judgment." Dkt. # 100. Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient," however, and factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995).

Taking the evidence presented in the light most favorable to plaintiff, the Court finds as follows:

  (1) Plaintiff asserts that her current employer, King County Department of Transportation, Metro Division ("Metro"), retaliated against her for testimony she provided in litigation against the King County Department of Youth Services ("DYS"). Specifically, plaintiff contends that her direct and indirect supervisors at Metro were aware of her involvement in litigation against DYS and indicated that such activity is frowned upon and would get her in trouble at Metro. Plaintiff asserts that, because of her protected activity, she was not recommended for training in 1999, was terminated in 2000 (she was reinstated following a union grievance), was targeted for observation, and was subjected to unjustified discipline for various policy infractions. In her response memorandum, plaintiff also asserts that she was subjected to a hostile work environment as retaliation for engaging in protected activity. Plaintiff did not mention this aspect of her retaliation claim, either in general or specific terms, when she was asked to identify every adverse employment action to which she was subjected. See Decl. of Stephen G. Teply at Ex. 14 (Dkt. # 101). Having failed to disclose in discovery conduct which she now claims was retaliatory, plaintiff will not be permitted to base her retaliation claim on the alleged attacks on her mental health, her request for accommodation under the Americans with Disabilities Act, the false attribution and embellishment of customer complaints, a failure to protect, or the sham investigation.

  To the extent plaintiff's state and federal retaliation claims are based on the 1999 failure to train, her termination, and the two Performance Reports issued in 2000, they are barred by the relevant statutes of limitation. Under Title VII, retaliatory acts occurring more than 300 days before plaintiff filed her EEOC complaint (i.e., before February 20, 2002) are time barred. Under the Washington Law Against Discrimination, suit must be brought regarding retaliatory acts within three years and sixty days of their occurrence. Plaintiff filed this suit on June 3, 2004: acts occurring before April 4, 2001, may not, therefore, be the basis of plaintiff's retaliation claims.*fn1

  To make out a prima facie case of retaliation under Title VII, plaintiff must demonstrate that "(1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision." Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003). The burden then shifts to defendants "to articulate a legitimate, non-discriminatory reasons for the adverse employment action." Manatt v. Bank of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003). Plaintiff bears the ultimate burden of persuasion, however, and must rebut the employer's justification for the adverse employment action by showing that the proffered reason was pretext or that retaliation was the real motivating factor. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1068-69 (9th Cir. 2003). "Because Washington courts look to interpretations of federal law when analyzing retaliation claims, we . . . consider [plaintiff's] federal and state claims together." Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002) (citing Graves v. Dept. of Game, 76 Wn. App. 705 (1994)).

  In their moving papers, defendants neither challenged nor conceded plaintiff's claim that her participation in several cases against DYS was "protected activity" for purposes of a retaliation claim. Motion at 10. Defendants may not raise for the first time in reply an argument regarding which conduct may or may not qualify as protected activity. Reply at 3. The Court will assume, as defendants originally did, that plaintiff engaged in protected activity "by testifying in several cases against DYS, including her own and Bunch v. King County." Motion at 10. Despite pointing out the difference between "counseling" and "reminder" Performance Reports (Motion at 11 n. 2), defendants do not characterize the Performance Reports issued to plaintiff and apparently concede that the issuance of either type of adverse report can constitute an "adverse employment action" under Title VII if the issuance of such reports would likely deter a reasonable employee from engaging ...


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