United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on the parties' cross-motions for summary judgment. The parties did not request oral argument and the court finds oral argument unnecessary. For the reasons stated herein, the court GRANTS Defendants' motion for summary judgment in part and DENIES it in part. Dkt. # 35. The court DENIES Plaintiffs' summary judgment motion. Dkt. # 39. Because this order disposes of all claims against Defendants Randy Rubenstein, Paul Singh, and Joseph Geiger, the court directs the clerk to TERMINATE them as parties. The clerk shall also TERMINATE Plaintiff Vitaliy Ostapyuk as a party because none of his claims survive summary judgment. The court declines Defendants' request to impose sanctions via Federal Rule of Civil Procedure 11, although the court warns Plaintiff's counsel in Part III.E that he will face sanctions if he repeats the practices he employed in these motions.
This order concludes with a list of claims remaining for trial.
In recounting the parties' evidence, the court is mindful of the familiar summary judgment standard, which requires the court to draw all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
A. Evidence that Foreman Shawn Novoa Subjected the Flooring Installers Under His Supervision to Repeated Racial Epithets
A jury could conclude that Shawn Novoa, a foreman at North American Terrazzo, Inc. ("NAT") since late 2009, treated the workers under his supervision abominably. Mr. Novoa supervised a crew of NAT employees who installed terrazzo flooring at various sites. The five Plaintiffs, all of whom were members of Mr. Novoa's crew at various times from 2009 to 2011, testified that he demeaned the employees in his charge with frequent profanity-laden racial tirades.
Plaintiff Jesse Thompson, the only African-American worker on the crew, testified that Mr. Novoa belittled him for being "cool" with the "white mother fuckers" who were his coworkers. Thompson depo. at 73. Mr. Novoa called him a "F'ing Uncle Tom" and "whitewash." Id. at 74, 77. He called Mr. Thompson a "nigger, " id. at 80, and the evidence suggests he did so frequently. Once when Mr. Thompson asked him to stop, Mr. Novoa responded, "Yo, you nigger, my mother fucking daughter is black." Id. Mr. Novoa called Mr. Thompson's Latino co-workers "mother fucking wetbacks, " and did so "all the time." Id. at 78. Once when Mr. Thompson asked him to stop and pointed out that Mr. Novoa was "Hispanic" or "Mexican, " Mr. Novoa became "really angry" and said "I ain't no mother fucking Mexican. I'm Chicano, mother fucker." Id. at 83. He testified about an occasion when a Latino worker submitted a timesheet for 50 hours of work and Mr. Novoa demanded a new sheet because "this company [doesn't] have the kind of money to pay you mother fuckers that kind of money." Id. at 83. Mr. Novoa told Mr. Thompson that "[t]hese wetback mother fuckers come to [the] United States and... they should be happy that they have a mother F'ing job...." Id. at 84. Mr. Thompson left NAT in August 2010.
Plaintiff Julio Romero echoed Mr. Thompson's testimony about Mr. Novoa's conduct toward his Latino subordinates. He testified that Mr. Novoa referred to him and other Latino workers as "spick[s], " "wetback[s], " and "water jumper[s]." Romero depo. at 18. Upon learning that Mr. Romero was born in Mexico, Mr. Novoa called him a "F'ing border jumper" who "get[s] all this money and send[s] it back to Mexico, [to] F up our economy." Id. at 59-60. Mr. Romero last worked at NAT in November 2010.
Plaintiff Ernesto Martinez, who is Latino, testified that Mr. Novoa told him that he was "going to fire all the fucking white guys, because they are a bunch of lazy asses, and I want a company that is all Mexican." Id. at 42. Then he "changed the tune and he said that he was going to fire all the Mexicans, because they were wetbacks and they were just jumping the border because they wanted to come here and get money for free." Id. at 43. When Mr. Martinez asked him why Mr. Novoa would speak like that if he was Mexican, Mr. Novoa responded that he was "not a fucking Mexican, " but rather "a Chicano." Id. Mr. Martinez also witnessed Mr. Novoa calling Mr. Thompson a "fucking nigger" and an "Uncle Tom." Id. at 45. He testified that Mr. Novoa treated Mr. Thompson "as if he were an animal." Id. at 56. Mr. Martinez last worked at NAT in April 2011.
Plaintiff Vitaliy Ostapyuk, a Caucasian born in Ukraine, was under Mr. Novoa's supervision only briefly in May 2010. He testified that within the first few days of his employment, Mr. Novoa began calling him a "fucking Russian." Ostapyuk Depo. at 25. He also referred to Mr. Ostapyuk as "white trash." Belzberg Decl. (Dkt. # 36), Ex. F. On the last day of Mr. Ostapyuk's employment, Mr. Novoa used the same slur (and variations including "mother fucking Russian" and "fucking white Russian") while ordering his subordinate to clean his tools. Ostapyuk Depo. at 64. Mr. Ostapyuk refused to clean Mr. Novoa's tools, so Mr. Novoa fired him. Id. at 65-66.
Plaintiff Justin Taylor, who is Caucasian, testified that Mr. Novoa used "racist terms" toward "every Hispanic guy" who worked on his crews, including Mr. Martinez. Taylor depo. at 26. Mr. Novoa told him, in reference to one Latino worker, to "[h]ave that spick go get alcohol, " presumably for cleaning tools. Id. at 27. He witnessed him call Mr. Ostapyuk a "fucking Russian, " and heard him scream "nigger" at Mr. Thompson twice. He did not use racist terms to describe Mr. Taylor when speaking to him, but Mr. Taylor's co-workers told him that Mr. Novoa called him "[h]onky, white trash, [and] trailer trash." Id. at 27-28. Mr. Taylor last worked at NAT in October 2010.
Mr. Novoa submitted a declaration in which he denied ever using racially offensive language at NAT. Dkt. # 55. That is one of the many reasons that the court cannot grant Plaintiffs' summary judgment motion. In considering Defendants' request for summary judgment, however, the court must resolve any evidentiary conflict in favor of Plaintiffs.
B. Evidence that Plaintiffs Complained to Mr. Novoa's Superiors, to their Union, and to State and Federal Civil Rights Commissions
At least two Plaintiffs testified that they complained about Mr. Novoa's conduct to Joseph Geiger, who was at all times relevant to this lawsuit NAT's Project Manager and Mr. Novoa's immediate supervisor. Mr. Romero testified that he complained to Mr. Geiger about the "racial demeaning" in October 2009, not long after Mr. Novoa became a foreman. Romero depo. at 17, 20. He also complained to his union representatives. Id. at 20. The union representatives told him that they had discussed his complaints with Mr. Geiger, NAT Vice-President Paul Singh, and NAT President Randy Rubenstein. Id. at 21. The union representatives told Mr. Romero that Mr. Novoa's superiors did not "see [Mr. Novoa] as being th[at] type of guy." Id. After a stint of working away from NAT, Mr. Geiger enticed Mr. Romero to return to work in the fall of 2010 by telling him he would not have to work with Mr. Novoa. Id. at 28-29. After he returned, he encountered Mr. Novoa while picking up his paycheck, and another string of Mr. Novoa's racial slurs ensued. Id. at 31-34. He reported the encounter to Mr. Geiger. Id. at 34-35. He quit working at NAT soon thereafter, and told Mr. Geiger that it was because of Mr. Novoa. Id. at 35-36.
Mr. Martinez also testified that he complained to Mr. Geiger in the fall of 2009. Martinez depo. at 45-46. He contends that when he returned to NAT in 2011 after a long stint away, Mr. Novoa told him that someone had ordered him to "stay away from people." Id. at 57. But he did not stay away from people; he approached Mr. Martinez and asked him to sign a letter declaring that he perceived Mr. Novoa's harassment as "just kidding around...." Id. at 48. That creates an inference that Mr. Novoa was preparing to defend himself against racial harassment claims, as well as an inference that his superiors at NAT had approached him about those claims. Mr. Martinez refused to sign the letter. Id. at 49. When Mr. Geiger confronted Mr. Martinez with a dispute about his Social Security number, Mr. Martinez left NAT. Id. at 49-51. Mr. Martinez testified that he left NAT because of the way Mr. Novoa treated him. As he explained:
Sometimes I didn't even want to go to work. I had to because, out of necessity, I had to work. But it was not a pleasurable thing to do anymore. Sometimes I couldn't even sleep thinking about what I was going to encounter the next day.
Id. at 51.
Mr. Geiger denies that Mr. Romero or Mr. Martinez ever complained to him about Mr. Novoa. Geiger depo. at 34-35. A jury could conclude that he is mistaken.
According to Mr. Geiger, Mr. Thompson complained to him about Mr. Novoa in late July or early August 2010, after a meeting in which he, Mr. Singh, and Mr. Rubenstein discussed with Mr. Thompson an incident in which he accidentally spilled a barrel of water at an NAT flooring project. Geiger depo. at 25. Mr. Novoa had fired Mr. Thompson following that incident. Id. at 26-27; Thompson depo. at 23-24, 32. Mr. Thompson was attempting to get his job back. Geiger depo. at 26. He told the men present at the meeting that Mr. Novoa had called him a "nigger, " and he may have said more about Mr. Novoa's racially-charged conduct. Id. at 29-30. Mr. Geiger investigated Mr. Thompson's claim by interviewing an NAT office worker and two laborers whose names are not in the record. Id. at 31-32. All three told Mr. Geiger that they had not heard Mr. Novoa use racially charged language. Id. Mr. Geiger did not interview any of the Plaintiffs. He decided, in consultation with Mr. Singh, to give Mr. Thompson his job back. Id. at 33; Rubenstein Decl. (Dkt. # 37), Ex. G (Aug. 3, 2010 letter from Mr. Geiger granting Mr. Thompson probationary employment).
Mr. Geiger testified that neither Mr. Ostapyuk nor Mr. Taylor ever complained to him about Mr. Novoa. Geiger depo. at 34-35. Mr. Taylor agrees that he did not complain to Mr. Geiger or his superiors, Taylor depo. at 33-34, but he complained to his union, Taylor Depo. at 29-31. Mr. Geiger admits that he witnessed Mr. Novoa call Mr. Ostapyuk a "fucking Russian." Geiger depo. at 24. Mr. Ostapyuk testified that he complained to his union about Mr. Novoa's slurs. Ostapyuk depo. at 21-23.
There is no evidence, other than Mr. Martinez's testimony that Mr. Novoa told him in 2011 that someone had ordered him to "stay away from people, " that NAT took any action to stop Mr. Novoa's conduct. Even when Mr. Geiger witnessed him calling Mr. Ostapyuk a "fucking Russian, " he did not order Mr. Novoa to stop. Geiger depo. at 24.
Plaintiffs complained to an agency with authority to consider discrimination charges. Mr. Ostapyuk complained to the Seattle Office for Civil Rights ("SOCR"), Mr. Romero and Mr. Martinez complained to the Washington State Human Rights Commission. Belzberg Decl. (Dkt. # 36), Exs. F, H, I. The Equal Opportunity Employment Commission ("EEOC") eventually considered each Plaintiff's complaint, ruling that there was reason to believe that NAT had discriminated against Mr. Thompson, Mr. Romero, and Mr. Martinez in violation of Title VII of the Civil Rights Act of 1964. Franklin Decl. (Dkt. # 51-1), Exs. A-C. The EEOC issued right-to-sue letters to all five Plaintiffs. Id., Ex. K.
This suit followed, in which Plaintiffs named as Defendants NAT, Mr. Novoa, Mr. Geiger, Mr. Rubenstein, and Mr. Singh. Their complaint contains claims invoking Title VII, the Washington Law Against Discrimination ("WLAD"), and the Fair Labor Standards Act ("FLSA"). It also asserts that Defendants are liable for outrage, negligent infliction of emotional distress, negligent supervision, various wrongful discharge torts, and breaches of contract. ...