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Duenez v. Dakota Creek Industries Inc.

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

January 19, 2018

SILVESTRE DUENEZ, Plaintiff,
v.
DAKOTA CREEK INDUSTRIES INCORPORATED, Defendant.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's motion for partial summary judgment (Dkt. No. 23) and motion to strike (Dkt. No. 28). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for summary judgment (Dkt. No. 25) and DENIES the motion to strike (Dkt. No. 28) for the reasons explained herein.

         I. BACKGROUND

         Plaintiff Silvestre Duenez (“Duenez”) worked as a painter for Defendant Dakota Creek Industries (“Dakota”) from May to September of 2013. (Dkt. Nos. 1 at 3, 24 at 140.) Dakota builds and repairs ships, and Duenez worked as part of a team that was supervised by a foreman and several “leads.” (Id. at 32-33.) During his time at Dakota, Duenez worked under the direction of foreman Joe Robinson (“Robinson”) and lead Brian Magana (“Magana”). (Id.)

         Duenez, who was born in Mexico, believed that he was a frequent target of racially-charged jokes and comments, often coming from Magana and Robinson. (Dkt. No. 24 at 8-9, 11-13, 136.) In August 2013, Duenez spoke with Dakota's human resources manager, Aga Samsel (“Samsel”), about some of the harassment he felt he was experiencing. (Id. at 136.) Duenez told Samsel about a sexually-explicit bumper sticker that he thought Robinson had placed on his truck. (Id.) The sign read “I'm not gay but my ass is.” (Id.) Duenez also told Samsel that other employees made jokes about his accent and treated him differently. (Id.)

         In early September, Duenez provided Samsel with a written complaint describing additional allegations about Robinson's actions. (Id. at 146-47.) Duenez alleged that he caught Robinson using Duenez's cellphone to take a picture of Robinson's genitals. (Id. at 146.) Duenez additionally wrote that Robinson had asked him to give the sexually-explicit bumper sticker back to him, which made Duenez think Robinson had put the sticker on his truck. (Id.) Duenez also wrote that Robinson had condoned the jokes made about Duenez's accent. (Id. at 147.) Based on the complaint, Samsel conducted an investigation in which she spoke to Magana, Robinson, and others about Duenez's allegations. (Id. at 146-153.) Samsel concluded that the allegation about Robinson taking a picture of his genitals could not be corroborated. (Id. at 153.)

         In addition to Duenez's complaints to Samsel, it is undisputed that Duenez had received write-ups for not following instructions, a safety violation, and failing to show-up for a scheduled shift. (Dkt. No. 26 at 9-18.) On September 27, 2013, Samsel informed Duenez he was being terminated by Dakota for not meeting expectations. (Dkt. No. 24 at 157.) Superintendent Rick Kirschman (“Kirschman”) and Robinson were also involved in the decision to terminate Duenez. (Dkt. No. 24 at 117, 161.)

         Duenez brings claims against Dakota for harassment based on his race and sex, hostile work environment, and retaliation under 42 U.S.C. § 1981, et seq. (“§ 1981”), Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000(e), et seq. (“Title VII”), and the Washington Law Against Discrimination, Revised Code of Washington section 49.60, et seq. (“WLAD”) (Dkt. No. 23 at 3.) Duenez asks the Court to grant partial summary judgment and rule that Dakota is liable for retaliation under state and federal law. (Id. at 4.) Duenez also asks the Court to dismiss two of Dakota's affirmative defenses (Id.) Dakota asks the Court to deny Duenez's motion in its entirety. (Dkt. No. 25 at 1.)

         II. DISCUSSION

         A. Duenez's Motion to Strike

         Duenez asks the Court to strike Kirschman's declaration submitted with Dakota's response in opposition to summary judgment. (Dkt. No. 28 at 5). First, Duenez asserts that Kirschman had no personal knowledge of Samsel's investigation into his complaints, and therefore Kirschman's statements about the investigation are inadmissible hearsay. (Id. at 6.) Duenez next argues that many of Kirschman's statements contradict his deposition testimony and his declaration is thus a “sham” that cannot be used to create genuine disputes of fact. (Id. at 8.)

         “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed R. Civ. P. 56(c)(4). Kirschman can testify about Samsel's investigation even though he wasn't involved because Samsel “reported to [Kirschman] the results of her investigation.” (Dkt. No. 27 at 3.) The Court additionally finds that Kirschman's statements about what Samsel told him could be admissible as non-hearsay because they demonstrate his state-of-mind, which is relevant to basis for Duenez's termination. See Jones v. Los Angeles Cmty. Coll. Dist., 702 F.2d 203, 205 (9th Cir. 1983) (out-of-court statements about employee's performance and conduct were nonhearsay because they were offered to show non-discriminatory motive for termination).[1]

         Under Ninth Circuit case law, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (citation and internal quotation marks omitted). But this sham affidavit rule “should be applied with caution” because the Court must not make credibility determinations when resolving a summary judgment motion. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).

         Duenez argues that Kirschman's declaration is a sham because parts of it contradict his deposition testimony. (Dkt. No. 28 at 8-9.) The Court cannot agree. Much of Kirschman's declaration either clarifies or elaborates on his deposition testimony. See Van Asdale, 577 F.3d at 999 (“[T]he non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.”) (internal quotation omitted). In his declaration, Kirschman points to sections of his deposition not cited in Duenez's motion that attempt to clarify his statements about how Duenez's complaints impacted the termination decision. (Dkt. No. 27 at 5.) Kirschman also elaborates on the reasons for Duenez's termination. (Id.) The Court does not find these statements contradictory, as Kirschman offered more than one reason in his deposition for Duenez's termination. (See Dkt. No. 24 at 110) (“I think it escalated. I think it went from he was being written up and disciplined for not wearing the harness and he just blew up, and then became, we're terminating you. I don't remember exactly. I just remember the outcome.”).

         To the extent that Kirschman's declaration testimony could be viewed as contradicting his deposition testimony, the Court believes such inconsistencies are better addressed at trial. Duenez's motion to strike (Dkt. No. 28) is DENIED.

         B. Summary Judgment Standard

         Summary judgment should be granted “if 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). Material facts are those that may affect the case's outcome. See 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. See Id. at 49. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences must be drawn in the nonmovant's favor. See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .” Anderson, 477 U.S. at 255.

         C. Federal Retaliation Claims

         Dakota asks the Court to apply the three-step burden shifting framework developed by the Supreme Court in McDonnell Douglas Corp. v. Green to analyze the federal retaliation claims. 411 U.S. 792, 802 (1973). (Dkt. No. 25 at 7-8); see, e.g., Manatt v. Bank of Am., N.A., 339 F.3d 792, 800 (9th Cir. 2003) (applying the McDonnell Douglas framework to retaliation claims brought under Title VII and § 1981). Under the McDonnell Douglas analysis, if a plaintiff makes out a prima facie case of retaliation, the burden shifts to the defendant to provide a non-discriminatory reason for the adverse employment decision. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002) (citation omitted). If the defendant articulates such a reason, the plaintiff must demonstrate that the defendant's reason is merely a pretext for a discriminatory motive. Manatt, 339 F.3d at 800.

         Since Duenez moves for summary judgment on his retaliation claims and would bear the ultimate burden of persuasion at trial, there is no need to apply the rigid McDonnell Douglas framework. See Poland v. Chertoff, 494 F.3d 1174, 1189 n. 2 (9th Cir. 2007) (discussing the differences between a plaintiff's burden in making a prima facie case of retaliation under McDonnell Douglas framework with a plaintiff's ultimate burden of persuasion at trial). Instead, the Court need only determine whether Duenez has shown that the undisputed material facts demonstrate that he is entitled to judgment on his retaliation claims such that no reasonable trier of fact could find for Dakota. Anderson, 477 U.S. at 251.

         To prevail on his retaliation claims brought under Title VII and § 1981, Duenez must prove by a preponderance of the evidence that: (1) he engaged in or was engaging in an activity protected under federal law; (2) Dakota subjected him to an adverse employment action; and (3) Duenez was subjected to the adverse employment action because of his participation in the protected activity. Model Civ. Jury Instr. 9th Cir. 10.8 (2017); see also, Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) (“[f]acts sufficient to give rise to a Title VII claim are also sufficient for a § 1981 claim”).

         1. Protected Activity

         Duenez asserts that he engaged in a protected activity when he made complaints to Samsel about race and gender harassment. (Dkt. No. 23 at 14-15.) Under Title VII, it is unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. In order to be a protected activity, the plaintiff's opposition must have been directed toward a discriminatory act by an employer or an agent of an employer. See Silver v. KCA, Inc., 586 F.2d 138, 140-42 (9th Cir. 1978). An employee engages in a protected opposition activity when his complaints are “based on a ‘reasonable belief& ...


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