United States District Court, W.D. Washington, Seattle
ORDER ON SUMMARY JUDGMENT
RICARDO S. MARTINEZ, District Judge.
THIS MATTER comes before the Court on Motion for Summary Judgment by Defendants. Dkt. # 52. Defendants seek dismissal with prejudice of all claims against them asserted by Plaintiff Alec Mangaliman in his Third Amended Complaint. Dkt. # 31. Having considered the records and files herein, including the parties' supplemental response and reply briefs, and for the reasons set forth below, Defendant's Motion is GRANTED.
Plaintiff Alec Mangaliman, who is of Filipino origin, was employed by the Washington State Department of Transportation ("WSDOT") from 1999 through August 2010 as a "materials tester." Materials testers serve as the "eyes" of WSDOT project engineers, performing a quality assurance function in assuring that materials applied on highway projects meet specifications. Dkt. # 57, ¶ 4.
For his first several years, Mangaliman worked as a Transportation Technician 2 ("TT2") at WSDOT's Northwest Regional Bothell Project office located in Bothell, Washington. From the beginning of his employment, Mr. Mangaliman's performance reviews indicated that his work consistently fell below expectations. His first performance review found that he was "not producing work that meets normal expectations of quality, " that he lacked basic skills essential to his job and manifested a "reluctance to learn" in order to correct deficiencies. See Dkt. # 55, Ex. 8. His second performance review of September 2000 suggested slight improvements but that Mangaliman was "still having problems with consistently producing work that meets normal expectations of quality." Id. at Ex. 9. As a result, Mr. Mangaliman's supervisors enrolled him in courses to help him improve his writing and presentation skills. Id. at p. 2.
On February 1, 2002, Mangaliman was auto-promoted from TT2 to a level TT3 position as a result of his three years of service and success in passing a statewide written examination, with a score of 41 out of 85 points, or two points above the minimum. Id. at Ex. 10. Mangaliman's substandard performance reviews continued following his promotion. See Dkt. # 31, ¶ 24. On April 18, 2006, Mangaliman filed a complaint with WSDOT's Office of Equal Opportunity ("OEO"), alleging that WSDOT discriminated against him based on his race, national origin, and age and retaliated against him. Dkt. # 70, Ex. D. The complaint focused on grievances against his supervisors for requiring him to undergo regular performance reviews and for refusing to promote him to a Transportation Engineer position. OEO responded to Mangaliman that the "majority of [his] complaint falls under Human Resources (HR)" and requested further information. Id. at Ex. E. WSDOT dropped the investigation into the complaint when Mangaliman failed to follow up with the information requested. Dkt. # 57, Ex. 11, pp. 10-11.
In April 2007, Mangaliman was transferred to David Lindberg's P.E. Office in Redmond, WA as part of a reasonable accommodation in response to statements by Mangaliman's physician indicating that he was unable to perform essential job functions at his previous work place. Dkt. # 58, Ex. 1. As a condition of his transfer, Mangaliman was provided the standard 60-day window from the start of his employment with Lindberg to "become a fully qualified tester including certification in aggregate testing and [hot-mix asphalt] plant inspection" in order to fulfill his specified essential job functions. Id. ; Dkt. # 58, ¶¶ 4, 5. All qualifications tests are taken at WSDOT Materials Labs and administered by Independent Assurance Inspectors. Mangaliman was unable to obtain certification within 60 days and also unable to correctly perform test procedures and obtain accurate results in the field. Id.
Despite failing qualifications tests, Mangaliman was permitted to continue working at Lindberg's P.E. Office from April 2007 through December 2009. During this period, he received three Performance Reviews, each of which reported his performance to be "below standard" or "unacceptable" in multiple areas. See, Dkt. # 58, Ex. 3; Ex. 4 (reporting Plaintiff's performance "below standards" in results orientation and materials tests, and "unacceptable" in "accountability/follows directions."); Ex. 5 ("below standards" in three behavioral and performance core competencies). Several of his supervisors also found him to be "incompetent" to perform his job as a materials tester, despite the provision of one-on-one training, extra time at work for studying and training, and direct assistance from an engineer in passing his qualification tests. See Dkt. # 58, ¶ 7; Dkt. # 57, ¶ 11; Dkt. # 53, ¶ 6.
On June 23, 2009, WSDOT issued Mangaliman a formal "Letter of Concern, " addressing his failure to pass the tests necessary to gain qualifications at a TT3 Materials Tester two years after his transfer to Lindberg's Office. See Dkt. # 58, Ex. 6. The Letter provided him a deadline of July 17, 2009 to "become certified in all aspects of materials testing process within David Lindberg's office, including the HMA plant inspection." Id. at p. 2. After Mangaliman failed to become fully qualified, was witnessed handling a Nuclear Gage in an insecure manner, and produced faulty asphalt test results in the field, he received a letter advising him of possible disciplinary actions and setting a disciplinary hearing. Dkt. # 54, ¶¶ 5-6; Dkt. # 58, Ex. 7. Following the hearing, WSDOT formally demoted Mangaliman from TT3 to TT2 by letter dated January 13, 2010. See Dkt. # 58, Ex. 8 (detailing performance-based reasons for Mangaliman's demotion).
Following his demotion, Mangaliman was assigned to the South End Viaduct Project under Project Engineer Paul Johnson as part of a shift in workers to meet staffing requirements for the Alaska Way Viaduct project. Mangaliman remained under Johnson's supervision until his termination in August 2010. Dkt. # 60, ¶ 4-5. Johnson placed Mangaliman under a six-month performance improvement plan ("PIP") and assigned Transportation Engineer Brian Curtis to mentor, train, and assist him during that period. Johnson informed Mangaliman in person and by written memorandum that failure to meet plan objectives could result in "further disciplinary action, including termination." Id. at ¶ 5, Ex. 1.
Again, Mangaliman's supervisors found that he was unable to obtain most materials testing qualifications and to maintain those for modules that he passed as he failed to properly apply testing procedures in the field. In sum, Mangaliman failed approximately 60 tests in a span of six years, a failure rate that his supervisors contend is unprecedented. See Dkt. # 57, ¶ 7. After Mangaliman and a fellow junior tester improperly performed field tests for concrete, WSDOT revoked both of their concrete testing qualifications for 21 days. Id. at ¶ 8. Assistant Project Engineer Scott Hart also observed Mangaliman sleeping at work on multiple occasions while on his six-month performance improvement plan, including in the office, at his desk, and during class. See Dkt. # 56. Hart documented several of these incidents with detailed contemporaneous notes, photographs, and video. Id. at Ex. 1-3. Mangaliman additionally failed to follow basic Nuclear Gauge safety measures during the PIP period. His Nuclear Badge was consequently put on hold, limiting his ability to perform certain materials tests. See Dkt. # 54, ¶¶ 12-13.
Following notification and opportunity to respond, WSDOT terminated Mangaliman's employment on August 19, 2010. His termination letter provided as grounds Mangaliman's substandard work performance, sleeping on duty, and Nuclear Gauge violations. See Dkt. # 60, Ex. 3. Mangaliman filed an EEOC complaint on October 27, 2010, alleging that WSDOT discriminated on against him on the grounds of his race, age, and national origin and took retaliatory action against him. Dkt. # 71, Ex. B. His union also filed but abandoned a grievance. Dkt. # 55, Ex. 6, p. 185.
Mangaliman filed the instant action pro se against 12 defendants on September 21, 2011. He was subsequently appointed counsel and filed his currently controlling Third Amended Complaint in August 2012. See Dkt. # 31. Five Defendants have since been dismissed. See Dkt. # 39. The seven remaining Defendants consist of WSDOT, WSDOT's former Secretary, and five WDOT employees from the last two Project Engineering offices where Mangaliman worked. Mangaliman has dismissed with prejudice his claims related to age, disability, the Family and Medical Leave Act, and retaliation based on those claims. See Dkt. # 41. The only claims remaining allege disparate treatment and hostile work environment based on race and national origin as well as retaliation, pursuant to Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 20001e), 42 U.S.C. §§ 1981 and 1983, and the Washington Law Against Discrimination (RCW 49.60). The gravamen of these claims is that Mangaliman was not promoted, was demoted, and was terminated based on his race and national origin.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) permits parties to move for summary judgment on all or part of their claims. Summary Judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those that may affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248. An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a motion for summary judgment, the court does "not weigh the evidence or determine the truth of the matter but only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, 41 F.3d 547, 549 (internal citations omitted).
The moving party bears the initial burden of production and the ultimate burden of persuasion. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The moving party must initially establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party defeats a motion for summary judgment if she or he "produces enough evidence to create a genuine issue of material fact." Nissan Fire, 969 F.2d at 1103. By contrast, the moving party is entitled to summary judgment where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof" at trial. Celotex, 477 U.S. at 322. "[T]he inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment. Anheuser-Busch, Inc. v. ...