United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JAMES P. DONOHUE, Magistrate Judge.
I. INTRODUCTION AND SUMMARY CONCLUSION
Plaintiff Arthur Clemens, Jr. alleges that his August 2008 termination by his employer defendant Qwest Corporation (hereinafter "Qwest") was discriminatory and retaliatory. Although plaintiff's employment at Qwest was later reinstated by an arbitrator, plaintiff is now seeking back pay and benefits. Qwest filed the instant motion for summary judgment, arguing that plaintiff was properly terminated for sub-standard performance. Dkt. 19. Plaintiff opposes the motion. Dkt. 26. After careful consideration of the parties' briefs, the governing law and the balance of the record, the Court DENIES Qwest's motion for summary judgment. Dkt. 19.
A. Factual History
1. Plaintiff's Employment with Qwest from 1987-2008
Plaintiff, who is an African American, began working for Qwest (which was formerly known as Pacific Northwest Bell) as an operator in 1987 at the age of sixteen. Dkt. 27 (Clemens Decl.) at ¶ 2; Dkt. 20, Ex. A (Clemens Dep. at 16:6-25). Over the years plaintiff was promoted to credit consultant, network technician, and by 2008 he was working as a customer data technician on the cable maintenance crew. Dkt. 20, Ex. A (Clemens Dep. at 60:7-9, 72:22-73:1). Customer data technicians, including Mr. Clemens, are highly skilled technicians who are often able to solve problems that others are unable to resolve. Dkt. 21 (Butler Decl.) at ¶ 12. As plaintiff's second-level supervisor John Rust described the position, "cable maintenance technicians are the best of the best. They are the people who fix what everyone else cannot." Dkt. 22 (Rust Decl.) at ¶ 3. Plaintiff had a non-existent disciplinary record and no significant performance issues during his over twenty years of employment at Qwest until late 2007. Dkt. 27 (Clemens Decl.) at ¶ 2.
2. Plaintiff's Difficulties with his New Supervisor, Shannon Ridge
In October 2007, plaintiff rear-ended another vehicle while driving a Qwest truck. Dkt. 23 (Griffith Decl.) at ¶ 4, Ex. C at 47. Plaintiff received a written warning for this incident on November 11, 2007. Id. Plaintiff had been "on loan" to another crew at the time of the accident, and he returned to his regular crew in November 2007 shortly thereafter. Dkt. 24 (Ridge Decl.) at ¶ 4.
While plaintiff was still "on loan" to the other crew, Shannon Ridge was assigned as the new supervisor of plaintiff's regular crew. Id. at ¶ 3. Ridge had previously worked as one of plaintiff's co-workers as a cable maintenance technician. Id. at ¶¶ 2-3. When plaintiff had previously worked with Ridge as a co-worker, plaintiff claims that Ridge told him that he and his friends would often drive around looking for black people to "beat up." Dkt. 27 (Clemens Decl.) at ¶ 4. Ridge was promoted to supervisor earlier in 2007, and had supervised several different crews before being assigned to plaintiff's crew later that year. Dkt. 24 (Ridge Decl.) at ¶ 3. Plaintiff had heard from Michael Green, an African-American technician on the "Valley crew" in South King County that Ridge had previously supervised, that Ridge treated African-American employees unfairly. See Dkt. 29 (Green Decl.) at ¶ 10 (noting that he told plaintiff about prior instances of alleged race discrimination by Ridge on his crew from January 2006-2007, which had prompted Green to file a formal complaint against Ridge with the Washington State Human Rights Commission and Ridge to be transferred to plaintiff's crew in 2007). Plaintiff had also heard race discrimination complaints about Ridge from at least one other African-American employee. Dkt. 27 (Clemens Decl.) at ¶ 4.
Shortly after plaintiff's motor vehicle accident, plaintiff was transferred back to his regular crew. He called and asked Ridge if he was behind the transfer, making it clear that he was not happy about it. Dkt. 24 (Ridge Decl.) at ¶ 5. Once plaintiff was working for Ridge, he felt that Ridge was constantly "on his back." Dkt. 27 (Clemens Decl.) at ¶ 5. He believed that Ridge's conduct was racially motivated, in part because of what he heard from his African-American co-workers. Id.
Ridge claims that plaintiff was a difficult employee to supervise and had a negative, confrontational attitude. Dkt. 24 (Ridge Decl.) at ¶ 6. Specifically, Ridge claims that plaintiff interrupted or walked out of crew meetings even when Ridge was talking, and had low quality jobs per day ("QJD") scores, which measures the number of jobs completed in an eight-hour day minus defects (which occurs when a job is not fixed correctly). Id. at 6, 8. See also Dkt. 21 (Butler Decl.) at ¶ 7 (discussing QJD scores). Ridge claims that plaintiff even advocated to other crew members that they should intentionally fail to meet their QJD performance goals. Dkt. 24 (Ridge Decl.) at ¶ 10.
Ridge asserts that plaintiff's behavior at times was even threatening, as he once asked Ridge if he knew that everyone on the crew "knew where I lived, " which concerned Ridge because he has a wife and three kids. Id. at ¶ 6. During the same conversation, he asked how Ridge's supervisor, John Rust, "could sleep at night with his prejudice." Id. Ridge claims that plaintiff frequently responded to coaching and discipline by threatening to file a lawsuit and making racially charged comments, such as "the Company's doing this to the black man." Id. at ¶ 7.
3. Plaintiff Encouraged Another African-American Employee to File a Race Discrimination Complaint in March 2008
Plaintiff is an active member of the Communications Workers of America Local 7800 ("CWA" or "Union"), which represents Qwest technicians in the Seattle area. Dkt. 25 (Edwards Decl.) at ¶ 4. In 2008, plaintiff was a union steward for his crew, which means that he provides representation to other employees during disciplinary meetings, files grievances on behalf of employees, and communicates other union concerns to management. Id . See also Dkt. 20, Ex. A (Clemens Dep. at 90:17-18).
As mentioned above, in the months prior to his termination, plaintiff believed that Ridge was treating African-American employees unfairly. In addition to his own experience with Ridge, he had heard from at least two other African-American employees that Ridge treated African-American employees unfairly. Dkt. 27 (Clemens Decl.) at ¶ 5. When another African-American co-worker, Boris Owens, told plaintiff about similar experiences with Ridge, plaintiff encouraged Owens to file an external Equal Employment Opportunity Commission ("EEOC") race discrimination complaint in March 2008. Id.
On March 31, 2008, Ridge sent an email to his supervisor Rust stating, among other things, that plaintiff "challenge[s] me on almost everything I state and advocates to others to... fail the QJD performance scoring system. Art consistently tells me and the crew, he wants to gather information for a law suit (sic) he plans to file.' Art is unprofessional and mocks and challenge[s] me in front of the crew daily, I think trying to test my temper." Dkt. 22 (Rust Decl.) at ¶ 5, Ex. A at 9. Ridge also noted in his email that he had been "instructed to gather information in regards to Art performing Union work on company time and his unprofessional behavior in the crew room... pull Art's March QJD SAT information and to look specifically at day[s] where Art has only completed one job or less. Also; to match this type of information with other information like GPS and Art showing up at other locations other than work locations." Id. Finally, Ridge noted that plaintiff's March QJD score had lowered the crew's average score. Id.
At this time, Ridge had already been interviewed by a Qwest attorney in January 2008 regarding an internal race discrimination complaint that Owens had filed against him in December 2007. Dkt. 24 (Ridge Decl.) at ¶ 8. Ridge admits that "at the time, I believed that [plaintiff] might have triggered the complaint because he was always encouraging Boris [Owens] and others to make complaints and with [plaintiff] race was a frequent topic of conversation." Id.  However, Ridge claims that he did not yet know about Owens' external complaint filed in March 2008. Id.
Plaintiff was also interviewed by Qwest's attorney Jenny Chung Savidge about his involvement with Owens' EEOC complaint on approximately April 2, 2008. Dkt. 27 (Clemens Decl.) at ¶ 6; Dkt. 23 (Griffith Decl.) at ¶ 3, Ex. B at 44-45 (EEO Interview with Plaintiff). During the interview, plaintiff admitted to Savidge that he told Owens to file a formal discrimination complaint against Ridge and that "I have been telling Boris [Owens] to keep track of everything that happens to him. I'm doing the same myself." Id. at 45.
4. Plaintiff's Performance in the Months Preceding his Termination
a. Plaintiff Drove a Qwest Truck While Talking on the Phone Without a Hands-Free Device
On April 1, 2008, Ridge and Rust were driving together when another Qwest vehicle, driven by plaintiff, passed them. Dkt. 22 (Rust Decl.) at ¶ 6. The two men saw plaintiff holding his cell phone up to his ear while driving down the road in violation of Qwest's policy forbidding hand-held cell phones while driving. Id.; Dkt. 24 (Ridge Decl.) at ¶ 11. The next day, when Ridge spoke with plaintiff about the incident, plaintiff immediately admitted to driving and talking on the phone without a hands free device, and asked for a new one because his current device was very used and dirty. Dkt. 27 (Clemens Decl.) at ¶ 8. Ridge provided a new one to him on April 7, 2008, without indicating that discipline or any investigation would follow. Id.; Dkt. 22 (Rust Decl.), Ex. B at 16 (noting that a new hands-free device was provided to Clemens "yesterday").
b. Plaintiff's April 8, 2008 Interview with Supervisors Ridge and Rust
On April 8, 2008, approximately one week after Qwest's in-house counsel learned that plaintiff had encouraged Owens to file the complaint and plaintiff was observed talking on the phone without a hands-free device, plaintiff and Ridge had an unrelated disagreement during an early morning crew meeting. Dkt. 27 (Clemens Decl.) at ¶ 7. Plaintiff told Ridge they could call the compliance hotline to resolve the issue, which is the same number used to report EEO discrimination concerns. Ridge responded, "I'm sure you have that number on speed dial." Id.
Later that same day, Ridge summoned plaintiff into the first of what would ultimately be four investigatory interviews. The purpose of an investigatory interview is to give employees an opportunity to explain their side of things, so that management can have all the relevant facts before making a decision about whether some kind of discipline is warranted. Dkt. 25 (Edwards Decl.) at ¶ 5.
This first interview lasted three hours. Ridge and Rust asked plaintiff for his understanding with respect to a broad range of company policies, with no description of any alleged violation of those policies by the plaintiff. Dkt. 22 (Rust Decl.) at ¶ 7, Ex. B at 12-20 (Notes from Investigatory Interview). Thus, plaintiff was not specifically advised regarding what he had done wrong that necessitated the meeting. Id . See also Dkt. 27 (Clemens Decl.) at ¶ 8; Dkt. 24 (Ridge Decl.) at ¶ 12; Dkt. 35 (Higgins Decl.), Ex. D (Rust Dep. at 33:23-34:3) and E (List of interview questions prepared by Rust). For example, they asked plaintiff, "What is your understanding with regards to accuracy of records and time reporting... What is your understanding of professionalism... Violence in the workplace... How long are your breaks and lunch periods... When is it appropriate to perform union work on company time?" Dkt. 22 (Rust Decl.) at ¶ 7, Ex. B at 12-13 (Notes from Investigatory Interview).
With respect to hands-free cell phone use, Ridge noted, "We talked about being on your cell phone, without being on hands-free; tell me the company policy on using phone without hands-free." Id. at 16. Plaintiff stated that although he understood that not talking on the cell phone while driving is a Qwest tech expectation, he sees his manager, as well as others, do it all the time. Id. Ridge asked plaintiff, "Does that make it ok?" Id. Plaintiff responded, "If the company allows everyone to do it. I'm not perfect either." Id. Ridge then asked plaintiff "about the interaction this morning with me in the crew room." Id. Plaintiff described his recollection of their interaction, including Ridge's comment that plaintiff must have the compliance hotline number "on speed dial." Id. at 17. Plaintiff noted that "[a]fter his comment about having compliance on speed dial, I felt that he was retaliating against me for participating in an ongoing investigation." Id. Plaintiff also stated that "I feel that this whole meeting is retaliatory." Id. Neither Ridge nor Rust asked what investigation plaintiff was referring to. Id. Ridge did ask if plaintiff believed he treated Ridge "with professionalism, " and plaintiff responded, "Yes, same professionalism you were treating me with." Id.
Qwest's investigation procedures direct managers to ask about the policies that were allegedly violated by the plaintiff. See Dkt. 35 (Higgins Decl.), Ex. F ("How to conduct an Investigatory Interview"). See id., Ex. G (Edwards Dep. 26:7-16). In addition, Qwest trains its managers to begin the interview by stating the purpose or reason for the meeting, whereas Ridge and Rust began the April 8 meeting by stating that "the purpose of this meeting is investigatory; to provide you with an opportunity to answer questions. It could result in disciplinary action. You are required to comply with this investigation." Dkt. 27 (Clemens Decl.) at ¶ 10. During Rust's deposition, the only reason he provided for the first investigatory interview was related to plaintiff's cell phone use without a hands-free device. Dkt. 35 (Higgins Decl.), Ex. D (Rust Dep. at 33:23-34:3). When asked why he and Ridge asked plaintiff questions about such a wide range of topics, Rust responded, "Just wanted to know his understanding." Id. at 38:24-42:20. No discipline issued immediately after the meeting.
c. Supervisor Rust Accused Plaintiff of Failing to Use a Hands-Free Device While Driving a Second Time
On April 28, 2008, after hearing nothing about the outcome of the first investigatory interview, plaintiff emailed Rust. Specifically, plaintiff advised him,
... shortly after I participated in a eeo investigation I was moved to the late shift and pulled into an investigatory meeting that lasted 3 hours. I thought that I had answered all of your questions correctly and had done everything [in] accordance to company procedures. You told me that you would get back to me about the outcome of the investigation. The meeting was on April 8, 2008 and it is now April 28th, 2008. Twenty days have gone by and I have not heard anything. Please let me know what is going on, I find myself very stressed and worried about my job.
Dkt. 27 (Clemens Decl.), Ex. A. Rust did not respond to plaintiff's email.
Rust claims on that same day, April 28, 2008, he again saw plaintiff talking on his cell phone without a hands-free device while driving a company truck. Dkt. 22 (Rust Decl.) at ¶ 8. Rust contacted Tammy Edwards, Lead Labor and Human Resources Generalist, and asked her to pull plaintiff's phone records. Rust claims these records confirmed that plaintiff was on a call at the time Rust saw him and that GPS records confirmed that plaintiff was in the area at the time. Id . See also Dkt. 41 (Second Edwards Decl.), Ex. B ...