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Gillum v. Safeway, Inc.

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

April 7, 2015

SAFEWAY, INC., Defendant.



Defendant Safeway Inc. ("Safeway") brings this motion for summary judgment, seeking dismissal of the hostile work environment, racial discrimination, and retaliation claims raised by Plaintiff David Gillum under Title VII, 42 U.S.C. § 1981 and the Washington Law Against Discrimination ("WLAD"). After reviewing the briefs and all other relevant material properly before the Court, the Court grants Safeway's motion for summary judgment, with respect to the Gillum's racial discrimination claim, and denies Safeway's motion for summary judgment, with respect to the hostile work environment and retaliation claims.


A. Summary Judgment Generally

Summary judgment is appropriate where "there is no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Material facts are those that may affect the case's outcome." Colorado Cas. Ins. Co. v. Starline Windows, Inc., No. C12-2218-JCC, 2014 WL 1328491, at *1 (W.D. Wash. Apr. 1, 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A dispute about a material fact is genuine if there is enough evidence for a reasonable jury to return a verdict for the nonmoving party." Id. "[E]vidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences must be drawn in the nonmovant's favor." Id. (citing Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011)).

B. Legal Standard for Summary Judgment for Racial Discrimination and Retaliation Claims Under Title VII and 42 U.S.C. § 1981

Claims of employment discrimination are examined under the framework set out in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). See Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002). Initially, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of a specific employment discrimination claim. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted). If the plaintiff meets that burden, the burden shifts to the defendant "to articulate some legitimate, [nondiscriminatory] reason for" its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing McDonnell Douglas, 411 U.S. at 802, 804). If the employer successfully presents a legitimate, non-discriminatory reason for its actions, "the presumption raised by the prima facie case is rebutted and drops from the case." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citation omitted). At this point, the employee has an opportunity to introduce evidence that "the proffered reason was not the true reason for the employment decision, and that race was." St. Mary's Honor Ctr., 509 U.S. at 508 (citing Burdine, 450 U.S. at 256). The court must consider whether the jury could infer discrimination from the plaintiff's prima facie case and any other evidence the plaintiff offers to show that the actions were discriminatory or that the non-discriminatory justification was pretextual. See id.


Plaintiff David Gillum is a 52-year-old African American who has worked for Defendant Safeway since 1996. (Doc. No. 33, Ex. C at 4). For most of his employment with Safeway, Gillum worked as a "floating meat cutter"-he cut and packaged meat at various area stores for short periods of time. ( Id. ). From July 2001 through July 2013, he received "good" and "exceptional" performance reviews. (Doc. No. 33, Ex. A).

In 2010, District Manager Bret Podnar and Meat Merchandiser Shawn Kaiser decided to assign Gillum to a permanent position in Safeway's Renton Highlands store under the supervision of meat market manager Gary Brown. (Hunter Decl., Ex. A at SW000082). Safeway proffers that it transferred Gillum to work under Brown's supervision due to Gillum's "performance issues." (Gillum Decl. ¶4). However, Gillum alleges that Safeway managers transferred him to work under Brown in the hopes that Brown would cause him to be fired. In making this argument, Gillum relies on the deposition of Collette Thomas, a Safeway meat market manager. According to Thomas, Shawn Kaiser initially asked Thomas if he could place Gillum under her supervision so she could fire Gillum. (Thomas Decl. ¶15). Kaiser told Thomas that "[he] just want[s] that black piece of shit gone" and that Safeway's Operation manager Jon Blank wanted Kaiser to "get [Gillum] good or get [him] gone." (Thomas Decl. ¶15). According to Gillum, shortly after this conversation, Safeway placed Gillum under the supervision of Gary Brown. ( Id. at ¶16). According to Thomas, Brown often expressed racist views, especially toward African Americans. In fact, Thomas asserted that Brown used racial slurs such as "nigger" routinely, "if not every day, " around employees and "any time occasion arose." ( Id. at ¶¶4-13).

Thomas asserts that, while only store managers have the ultimate authority to fire employees, meat market managers, such as Brown, have substantial input into promotion and firing decisions. (Hudson Decl. ¶8 at 86:6-19). According to Thomas, meat market managers may provide written discipline to employees working in the meat section and these "write ups" can result in either suspension and/or termination. (Thomas Dep., Ex. J at 86:5-87:5). Meat market managers can also influence compensation. ( Id. at 89:11-90:11). For example, Gary Brown controlled the number of shifts employees in his department worked. ( Id. ).

Safeway's written policies encouraged its employees to report discrimination issues at work to any manager; the manager was then supposed to report the issue to Human Resources. (Doc. No. 33, Ex. D, Hunter Dep. 39:24-40:15). Around April or May of 2010, some time after his first day under Gary Brown's supervision, Gillum reported to Anita Keahey, a scheduling coordinator, that he had problems with Brown and did not want to work with him. (Gillum Decl. ¶7). However, Gillum does not state which specific problems he reported to Keahey. That same day, Gillum received a call from Signe Hunter, the Human Resources manager. (Doc. No. 33, Ex. B, Gillum Dep.101:23-104:11). During that phone call, Gillum reported to Hunter that Brown made several racist comments at the workplace. Gillum also asserted that Brown discouraged Gillum from complaining about Brown's actions, telling Gillum "what happened at the store stayed at the store" and that he would "hunt" Gillum down if he complained. ( Id. at 113:22-114:11). Hunter did not follow up on Gillum's report. Instead, according to Gillum she said: "David, David, David, you are going to be fine." (Gillum Decl. ¶7).

Gillum asserts that after his first report to Hunter, according to Gillum, Brown continued to make racist comments in Gillum's presence. For instance, Brown remarked that African Americans liked certain kinds of meat and that he does not order "that kind of meat" for "those kinds of people." ( Id. at ¶9). Brown also referred to downtown Renton as "niggerville." ( Id. ). According to Gillum, Brown made comments like "Blacks are lazy" and "always on welfare" and that Brown did not want "them" shopping at his store. ( Id. at ¶10). On one occasion, Brown even remarked that "[w]hen Black people's hands touch the meat, the meat turns purple." ( Id. ). On another occasion, Gillum overheard Brown say "we are going to work that nigger into the ground." ( Id. at ¶8). Gillum asserts that Brown made these and similar comments routinely, sometimes many times per day. ( Id. ).

Around mid-June 2010, Gillum complained to Lee Trutmann, a store manager, about Brown's behavior and his use of racially derogatory words. Trutmann defended Brown, telling Gillum that Brown was a "good guy." ( Id. at ¶¶13-14). After this conversation, Brown told Gillum that Trutmann lets Brown do what he wanted and that Gillum better not be "snitching." ( Id. at ¶6).

Around June 29, 2010, Gillum complained to Anita Keahey again, telling her that he was not getting adequate help wrapping the meat, that Brown discriminated against him, and that there was a concerted effort by the managers to terminate Gillum because he was black. ( Id. at ¶15). Shortly after this report, Brown, Kaiser, and Trutmann called Gillum to the manager's office. ( Id. at ¶16). They told Gillum that his job performance was unsatisfactory, that he soon would be let go, and that he better cut enough meat for "today and tomorrow." ( Id. ). After Gillum asserted that he would not be able to complete the meat cutting task without more help, Brown responded "[b]oy, are you being insubordinate?"( Id. ). Gillum immediately telephoned Hunter and reported this incident to her and expressed his fear that Hunter could not protect him from Brown. ( Id. at ¶17). Hunter told Gillum that she did not have time to speak to him because she had a pedicure appointment and that Brown and Trutmann were "good guys." She also claimed that Gillum was just "telling stories." ( Id. at ¶23). Gillum reported the meeting to the Renton Police Department as well because, Gillum asserts, he felt threatened and unprotected. ( Id. at ¶¶18-19).

On July 6, 2010, Gillum contacted Anita Keahy again, telling her about Brown's and other managers' racial hostility. ( Id. at ¶18). He also complained about Brown calling Gillum a "nigger." ( Id. ). On July 9, 2010, Gillum met with Hunter and told her about the police report he filed. Hunter responded by telling Gillum that he should not do anything to hurt the company. ( Id. at ¶21). Gillum asserts that he continued to complain to Hunter about Brown's racist behavior, but Hunter told Gillum that he would have to go back to Brown's store. ( Id. at ¶23). Hunter did not investigate Brown's behavior; however, she did investigate Gillum's job performance. (Doc. No. 33, Ex. D 142:22-143:1, 162:1-23, 166:13-167:25; 169:6-18).[1] On November 17, 2010, Hunter officially "closed" her investigation regarding the harassment because she found Gillum's complaints unsubstantiated. (Doc. No. 33, Ex. D at 11).

At some point prior to January 1, 2011, Gillum went back to being a "floating meat cutter." Around January 1, 2011, Gillum received a call on a store telephone, in which the caller called Gillum "a snitching nigger" and "a dead nigger." (Gillum Decl. ¶27). Gillum asserts that Brown made this threatening phone call. ( Id. ). On April 23, 2012, Clint Miller, a meat market manager at a different store location, called Gillum's cell phone to call him a "snitching nigger" and inform him that "we are going to get you" and "fuck you up." ( Id. at ¶29). On another occasion, Clint Miller pulled out a pocket knife, opened it, and held it in front of Gillum while giving him a "menacing stare." ( Id. at ¶31). On yet another occasion, Clint Miller showed up to work drunk and called Gillum "black piece of shit" when Gillum refused to go to the liquor store to buy alcohol for ...

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