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Hanson v. County of Kitsap

United States District Court, W.D. Washington, Tacoma

June 2, 2014

CRAIG D. HANSON, Plaintiff,
v.
COUNTY OF KITSAP, WASHINGTON, DAVID LYNAM, KITSAP COUNTY FIRE MARSHAL, JOHN DOE, EMPLOYEE-AGENTS AND FORMER EMPLOYEE AGENTS OF KITSAP COUNTY, Defendants.

ORDER ON THE PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANTS' MOTION FOR RECONSIDERATION AND JANE

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Plaintiff's Motion and Memorandum for Partial Summary Judgment Regarding Public Records Act and Defamation (Dkt. 126), Defendants' Cross Motion for Partial Summary Judgment Regarding Claims for Public Records Act and Defamation (Dkt. 137) and Defendants' Motion for Reconsideration (Dkt. 139). The Court has considered the pleadings filed regarding the motions and the remaining file.

Plaintiff, a veteran of the United States Army, United States Marine Corps, and Washington Army National Guard, filed this employment case pursuant to Uniformed Services Employment and Reemployment Rights Act ("USERRA") 38 U.S.C. § 4301, et seq. and state law on May 22, 2013. Dkt. 1. In his second Amended Complaint, Plaintiff made USERRA based claims for discrimination in employment based on his military service under 38 U.S.C. § 4311, for retaliation under § 4311, failure to reemploy to the proper reemployment position under §§ 4312 and 4313; failure to provide proper benefits under § 4316; discharge without cause under § 4316; and for failure to properly pay employee pension and other benefits under §4318. Dkt. 45. Plaintiff also made state law claims for violations of the Washington Law Against Discrimination ("WLAD"), Washington's Public Records Act ("PRA"), defamation and liquidated damages. Id. He seeks damages, attorneys' fees and costs. Id.

The pending motions for partial summary judgment are two of the parties' many motions for partial summary judgment. Plaintiff's first partial motion for summary judgment was denied on October 10, 2013. Dkt. 37.

On May 22, 2014, the undersigned issued a 38 page Order, granting in part, and denying, in part, the Defendants' two partial motions for summary judgment and Plaintiffs' two cross motions for partial summary judgment. Dkt. 136. The facts and procedural history of this case are contained in that Order (Dkt. 136, at 1-16), and are adopted here by reference. That Order granted Defendants' motion for summary dismissal of Plaintiff's USERRA claims under §§4312 and 4313 (reemployment) and § 4316 (benefits), and his claims for hostile work environment and constructive discharge, and those claims were dismissed. Id. Plaintiff's motion for summary judgment on his USERRA claim under § 4318 (pension) was granted. Id. Defendants' motion for summary dismissal of Plaintiff's USERRA claim for § 4311 (discrimination) and claims under WLAD for discrimination was denied only to the extent that the claims were based on the failure to promote him and his removal from the fire investigation rotation. Id. Defendants' motion and Plaintiff's cross motion on the USERRA claim under § 4316 (without cause discharge) were both denied. Id.

Plaintiff's claims for violation of the PRA and for defamation were not raised by the parties in those motions.

On May 8, 2014, Plaintiff filed the instant motion for summary judgment on his PRA and defamation claims. Dkt. 126. Plaintiff noted the motion for May 30, 2014. Id. Defendants timely responded and within the response, filed a cross motion for partial summary judgment on the same claims. Dkt. 137. In a footnote, Defendants further request that the May 20, 2014 dispositive motions deadline be extended to allow for this cross motion. Id., at 1, n.1. Plaintiff opposes the extension of time. Dkt. 141.

On May 29, 2014, Defendants filed their Motion for Reconsideration. Dkt. 139. Defendants seek reconsideration of the Court's decision to deny summary judgment on Plaintiff's § 4311 (discrimination) and WLAD retaliation claims on the basis that temporal proximity alone is insufficient to establish retaliatory motive. Dkt. 139.

The case is set for on August 18, 2014. Dkt. 30.

This opinion will first consider Defendants' motion for extension of time (Dkt. 137), then the noting dates for the motions for partial summary judgment, and lastly, the Defendants' motion for reconsideration.

MOTION FOR EXTENSION OF TIME

Pursuant to Fed.R.Civ.P. 16(4), a case schedule may be modified for good cause.

Defendants' motion for a modification of the case schedule to extend the dispositive motions deadline for one week should be granted. Defendants have shown good cause and their motion should be permitted.

NOTING DATE FOR THE MOTIONS FOR PARTIAL SUMMARY JUDGMENT

The pending cross motions for partial summary judgment address the same claims. They should be considered together. The Plaintiff's Motion and Memorandum for Partial Summary Judgment Regarding Public Records Act and Defamation (Dkt. 126) and Defendants' Cross Motion for Partial Summary Judgment Regarding Claims for Public Records Act and Defamation (Dkt. 137) should be renoted for June 20, 2014. The response and reply, if any, should be filed in accord with the federal and local rules.

Motions practice in this relatively simple case has been extensive. Parties have overbriefed many of the issues. The undersigned is familiar with the entire record and does not need yet another rehashing of events. Be concise.

MOTION FOR RECONSIDERATION

Local Rule 7(h)(1) provides that motions for reconsideration are "disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the ruling, or (b) facts or legal authority which could not have been brought to the attention of the court earlier, through reasonable diligence."

As stated in the May 22, 2014 Order, in deciding whether the employee's military service was "a motivating factor" in the employer's action, the burden-of-proof allocations approved by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983) are used. Leisek v. Brightwood Corp., 278 F.3d 895, 899 (9th Cir. 2002).

Under the scheme set forth in Transportation Management, the employee first has the burden of showing, by a preponderance of the evidence, that his or her protected status was a substantial or motivating factor in the adverse employment action; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status.

Id. ( internal quotation omitted ). Insofar as the "substantial or motivating factor" is concerned in the Ninth Circuit:

Under USERRA, discriminatory motivation of the employer may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.

Leisek, at 900 (internal quotations omitted).

Defendants' motion for reconsideration of the Court's decision to deny summary judgment on Plaintiff's § 4311 (discrimination) and WLAD retaliation claims on the basis that temporal proximity alone is insufficient to establish retaliatory motive (Dkt. 139) should be denied. Defendants have failed to point to a "manifest error in the ruling" or "facts or legal authority which could not have been brought to the attention of the court earlier." Defendants point to unpublished cases that held, in the circumstances there, that the time between the adverse employment action and the protected activity (or return from military service) was insufficient to show a discriminatory motive and so the claims were dismissed. Dkt. 139. Considering the facts at issue, the Court cannot do so here. The reasoning in the May 22, 2014 Order (Dkt. 136) is adopted. Moreover, despite Defendants urging to the contrary, in Leisek, the Ninth Circuit held that "discriminatory motivation of the employer may be reasonably inferred from a variety of factors including proximity in time between the employee's military activity and the adverse employment action." Defendants' motion for summary judgment should not be granted.

ORDER

It is ORDERED that:

• Defendants' motion for extension of time (Dkt. 137) IS GRANTED;
• Plaintiff's Motion and Memorandum for Partial Summary Judgment Regarding Public Records Act and Defamation (Dkt. 126) IS RENOTED TO JUNE 20, 2014;
• Defendants' Cross Motion for Partial Summary Judgment Regarding Claims for Public Records Act and Defamation (Dkt. 137) IS RENOTED TO JUNE 20, 2014; and
• Defendants' Motion for Reconsideration (Dkt. 139) IS DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.


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