United States District Court, W.D. Washington, at Seattle
November 3, 2005.
KAREN RISPOLI, Plaintiff,
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
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
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 in protected activity. Brooks
v. City of San Mateo, 299 F.3d 917, 928 (9th Cir. 2000).
Defendants argue, however, that plaintiff has failed to establish
a causal nexus between the Performance Reports and plaintiff's
protected conduct. Motion at 11.
Plaintiff has submitted evidence from which a reasonable
factfinder could conclude that her receipt of numerous adverse
Performance Reports while employed by Metro was related to her
participation in lawsuits against another King County agency.
Plaintiff testified in Bunch v. King County in October 2001 and
has been identified as a witness in two other discrimination
cases against DYS. There is evidence that plaintiff's direct and
indirect supervisors were aware of her protected activity, that
certain supervisors had expressed their own or their superiors'
displeasure regarding her past and continuing involvement in
litigation against DYS, that her performance as a bus driver was
subjected to heightened scrutiny during the relevant time frame,
and that at least one of the supervisors who made statements
reflecting a retaliatory attitude issued or caused to be issued
four of the adverse Performance Reports of which plaintiff
In response to this prima facie showing of retaliation,
defendants have come forward with a non-retaliatory reason for
the issuance of the various Performance Reports, namely that
plaintiff violated specific rules or policies as set forth in
each of the reports. The supervisors who issued the Performance
Reports state that they did so because plaintiff violated Metro policies and for no other reason. The burden therefore
shifts back to plaintiff to show by a preponderance of the
evidence that the challenged employment decisions were made
"because of" retaliation. See Stegall, 350 F.3d at 1068.
Plaintiff may accomplish this goal "directly by persuading the
court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's proffered
explanation is unworthy of credence." Texas Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). Where plaintiff
offers direct evidence which, if believed, proves the fact of
retaliatory animus without the need for inference or presumption,
such evidence is considered highly probative and "plaintiff need
offer `very little' direct evidence to raise a genuine issue of
material fact." Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,
1095 (9th Cir. 2005) (quoting Godwin v. Hunt, 150 F.3d 1217,
1221 (9th Cir. 1998)).
In combination with plaintiff's prima facie case, plaintiff
has provided direct evidence of retaliatory animus and one could
infer that plaintiff's direct and indirect supervisors knew that
she had testified against DYS, that she was a potential witness
in continuing litigation against DYS, and that they disapproved
of these activities. At least one of the supervisors who issued
or directed the issuance of four of the adverse Performance
Reports had warned plaintiff that she should not testify against
DYS, that Metro was going to "get rid of" plaintiff, and that
things were going to get worse for her. Decl. of Karen Rispoli at
¶ 63 (Dkt. # 116). In addition, the adverse employment actions of
which plaintiff complains began shortly after plaintiff reported
an instance of harassment in June 1999 and Metro discovered that
plaintiff had been involved in lawsuits against DYS.*fn2 For
purposes of her state and federal retaliation claims, plaintiff
has raised a genuine issue of fact regarding defendants' motive
in scrutinizing plaintiff's job performance and issuing adverse Performance Reports during
the relevant time period.*fn3
(2) Although plaintiff's opposition includes factual averments
regarding her disability and the effect it had on her ability to
perform her job, plaintiff has not opposed defendants' motion for
summary judgment on her state and federal claims based on an
alleged failure to accommodate plaintiff's disability. Claim II
of the Complaint is, therefore, dismissed.
(3) Plaintiff has not opposed defendants' motion for summary
judgment on her claim that defendants' improperly disclosed
confidential medical information in violation of federal law.
Claim III of the Complaint is, therefore, dismissed.
(4) Plaintiff has not opposed defendants' motion for summary
judgment on her claim under RCW 49.12.240. Claim V of the
Complaint is, therefore, dismissed.*fn4
(5) Plaintiff has not opposed defendants' motion for summary
judgment regarding the claim of intentional infliction of
emotional distress. Claim VI of the Complaint is, therefore,
(6) Although plaintiff's opposition includes factual averments
regarding the work environment to which she was subjected, those
averments were offered in support of plaintiff's state and
federal retaliation claims. Plaintiff has not opposed defendants'
motion for summary judgment on her separate hostile work environment claim. Claim
VII of the Complaint is, therefore, dismissed.
(7) Plaintiff has not opposed defendants' motion for summary
judgment on her breach of contract claims. Claim VIII and Claim
IX are, therefore, dismissed.
For all of the foregoing reasons, defendants' motion for
summary judgment is GRANTED in part and DENIED in part.
Plaintiff's claims of retaliation under state and federal law may
proceed to trial. All of plaintiff's other claims are DISMISSED
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