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Ismail v. Amazon.Com

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

June 5, 2018

ISMAHAN ISMAIL, Plaintiff,
v.
AMAZON.COM, Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Defendant Amazon.com's (“Amazon”) motion for summary judgment.[1] (MSJ (Dkt. # 27).) Plaintiff Ismahan Ismail opposes the motion. (Resp. (Dkt. # 37).) The court has considered Amazon's motion, the parties' submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, [2] the court GRANTS Amazon's motion for summary judgment on Ms. Ismail's claims.

         II. BACKGROUND

         A. Factual Background

         This case arises from Ms. Ismail's employment at Amazon's Global Security Command Center (“GSCC”) in Phoenix, Arizona.[3] (See Am. Compl. (Dkt. # 22) ¶¶ 4.1-4.2; Blatt Decl. (Dkt. # 30) ¶ 3, Ex. 2 (Dkt. # 30-2) (“Ismail Dep.”) at 67:23-68:11.)[4] Ms. Ismail began working full-time for Amazon's GSCC in December 2013. (Ismail Dep. at 17:15-18.) Ms. Ismail was responsible for “protect[ing] [Amazon's] people, brand[, ] and property, ” putting “together safety reports, ” “answer[ing] alarms, ” “deal[ing] with incoming phone calls, ” and “assist[ing] security officers.” (Id. at 68:23-69:3.) During the relevant period, Ms. Ismail worked the 12-hour night shift on GSCC's Team 4 with Saul Chavez, Migail Graves, J'Dyn Banks, Kyle Pearson, and Halle Matteson. (Peterson Decl. (Dkt. # 33) ¶ 2; Ismail Decl. ¶ 7; Ismail Dep. at 85:8-10.) Mr. Chavez, Mr. Graves, and Mr. Banks had the same job title as Ms. Ismail. (See Peterson Decl. ¶ 2.) Mr. Pearson was the assistant manager, and Ms. Matteson had a supervisory role over Ms. Ismail. (See Peterson Decl. ¶ 2; Ismail Dep. at 86:14-87:18.) When Ms. Ismail first started working at the GSSC, Charles Wyatt was her manager, followed by Levy Bland, [5] and then Braden Peterson. (See Ismail Decl. ¶ 6; Bland Decl. (Dkt. # 29) ¶ 2; Peterson Decl. ¶ 1.)

         At all relevant times, Amazon policy “provided that full-time associates working twelve-hour shifts received a minimum of three, ten-minute paid breaks and a thirty-minute unpaid meal period.” (Renner Decl. (Dkt. # 34) ¶ 2; see also id., Ex. 66 (“Break Policy”) at 4-5.) In addition, associates could not work “longer than twelve hours at a time.” (Renner Decl. ¶ 2; see also Break Policy at 3.) Amazon further allowed a five-minute “grace period” for unanticipated situations that would delay or hasten an employee's clock-in or clock-out time and a three-minute grace period for a meal break. (Feulner Decl. (Dkt. # 39), Ex. 504 at 56.) The parties refer to the paid breaks as 15-minute breaks, presumably because after accounting for the ten minutes provided by Amazon policy and the five minutes of grace time, the total time was 15 minutes. (See, e.g., Ismail Decl. ¶ 8.)

         Ms. Ismail was aware of Amazon's formal policy that she receive three 15-minute paid breaks and one unpaid 30-minute lunch break, but contends that “there was little guidance given to [Team 4 members] about breaks and expectations about breaks.” (Ismail Decl. ¶ 8.) She attests that Amazon did not “strictly enforce[]” the policy and employees often took more than three breaks. (Id.) As examples, Ms. Ismail states that “[p]eople on [her] team would take breaks to go smoke a cigarette, go get food from the local restaurants, or go to the break room.” (Id.) She believed such breaks were permitted if she “got coverage before going on a break from other employees on the team.” (Id.) In addition to breaks, Ms. Ismail states that “employees on the night shift were permitted to be away from their desk[s] or doing other tasks during slow periods.” (Id. ¶ 9.) During those slow periods, employees watched TV, played video games, played miniature golf, did their homework, or used their phones. (See id.; see also Ismail Dep. at 97:2-12.)

         Ms. Ismail is a practicing Muslim and prays five times a day. (Ismail Decl. ¶ 3.) To her knowledge, she was the only practicing Muslim on Team 4. (Id.; see also Id. ¶ 10 (Ms. Ismail “was not secretive about wearing . . . prayer clothes” and believed “that every employee on Team 4 saw [her] change into prayer clothes at some point during [her] time at GSCC.”).) Because Ms. Ismail worked the night shift at Amazon, she “could not do the prayers during the day and did the prayers while [she] was awake during [her] shift.” (Id. ¶ 3.) Ms. Ismail contends that her co-workers knew she used her breaks to pray, and states that she stored her “prayer materials” in a “cubby . . . where employees were expected to store their stuff.” (Id.) // The facts in this case center on Ms. Ismail's interactions with her coworkers and supervisors, Ms. Ismail's breaks, and Amazon's investigations of Ms. Ismail's complaints and behavior at work.[6] In roughly chronological order, the court recounts below the events giving rise to Ms. Ismail's leave of absence from Amazon and her claims.

         In October and November 2014, while Mr. Bland was Ms. Ismail's manager, he “coached” her several times about matters related to her performance. (Bland Decl. ¶ 4, Ex. 41 (“Coaching”) at 2.) On October 10, 2014, Mr. Bland told Ms. Ismail not to leave Amazon “to get food for lunch while still on the clock, ” not to have her “cell phone out on the operations floor, ” not to have social media websites “constantly up on [her] computer, ” and not to play games on work computers. (Id.) Mr. Bland also advised Ms. Ismail that he expected her to log into her computer at the time that her shift started and that “[t]he time clock grace period is to protect pay[, ] not attendance.” (Id.) On October 16, 2014, Mr. Bland addressed with Ms. Ismail errors she had made in processing notifications and told her that continued errors would result in her being demoted. (Id.) On November 8, 2014, Mr. Levy “coached” Ms. Ismail about her excessive tardiness, which arose because of medical and car problems. (Id.; Ismail Dep. at 229:5-13.) Ms. Ismail's time cards reflect that she was early for 13 of 15 shifts during the remainder of November 2014, early for 13 of 16 shifts in December 2014, and early or on time for 14 of 15 shifts in January 2015. (Feulner Decl. ¶ 2, Ex. 500 (Dkt. # 39-1) at 7 (summarizing Ms. Ismail's work start times).)[7]

         Also in November 2014, Amazon promoted Ms. Ismail to Escalation Specialist.[8](Ismail Decl. ¶ 15.) After her promotion, Ms. Ismail experienced difficulties with Migail Graves, the other Escalation Specialist on Team 4. (Id.) She states that Mr. Graves was “incredibly rude and abusive” to her. (Id.) She informed Mr. Bland and Mr. Pearson about Mr. Graves' behavior. (Id. ¶¶ 15-16, 20.) Despite Mr. Graves's alleged verbal abuse, Ms. Ismail contends that neither manager reprimanded him. (Id. ¶¶ 16-17, 19-20.) However, on January 23, 2015, Mr. Bland coached Ms. Ismail on what he determined was her unprofessional behavior related to her interactions with Mr. Graves. (Coaching at 2.)

         In January 2015, Amazon moved Ms. Ismail back into her previous role, which Ms. Ismail characterizes as a demotion. (Ismail Decl. ¶ 21; see also Resp. at 6 (stating that Ms. Ismail was demoted after complaining about Mr. Graves).) When Mr. Bland told Ms. Ismail about the decision, Ms. Ismail informed him that she “was primary on everything” and “doing the majority of the work.” (Ismail Decl. ¶ 21.) In addition, Ms. Ismail asked Mr. Bland whether he considered moving Mr. Graves back to his former role instead, and, according to Ms. Ismail, Mr. Bland told her that Mr. Graves “was better than [her] as an Escalation Specialist.” (Id.) Mr. Bland moved J'dyn Banks into the role of Escalation Specialist during the night shift. (Id.) Mr. Bland said that Mr. Banks had seniority, but Ms. Ismail contends that Mr. Banks “did not have any seniority over” her. (Id.) Ms. Ismail did not further contest the move. (See id.)

         During the same general timeframe as those events, Ms. Ismail applied for four internal transfers-two in December 2014 and two in January 2015. (Feulner Decl. ¶ 16, Ex. 514 (Dkt. # 39-2) at 15-17.) To interview for an open internal position, Amazon policy requires manager approval for employees who were not meeting standards. (Bland Decl. ¶ 5, Ex. 42 at 2 (providing an Amazon policy that states that “[e]mployees who are not currently meeting performance standards must obtain manager approval before interviewing”).) Mr. Bland declined to give Ms. Ismail the necessary approval, stating that he would support a transfer only after “a sustained period of improvement.” (Bland Decl. ¶ 5; see also Feulner Decl. ¶ 16, Ex. 514 at 15 (stating that Mr. Bland denied Ms. Ismail the opportunity to interview for a transfer because “several leadership principles . . . need[ed] improvement”); id. ¶ 3, Ex. 501 at 30.) Amazon's transfer team told Mr. Bland to “ensure that performance comments are limited to those that are formally documented in performance management systems.” (Feulner Decl. ¶ 16, Ex. 514 at 15.) According to Ms. Ismail, despite Mr. Bland's coaching regarding her performance, her first two managers never expressed concern with the length of breaks she took. (Ismail Decl. ¶ 6; see also Ismail Dep. at 73:20-23; Feulner Decl. ¶ 9, Ex. 507 at 182.)

         However, Braden Peterson became the manager of Team 4 on or around February 20, 2015 (Peterson Decl. ¶ 1), and took a different approach to Amazon's break policy (see Peterson Decl. ¶ 3; Ismail Decl. ¶ 6).[9] According to Mr. Peterson, “[o]ne of the first things [he] noticed after taking supervision of [his] team was that there was little communication surrounding break times, and even less structure about when it was appropriate to take them.” (Peterson Decl. ¶ 3; see also Feulner Decl. ¶ 7, Ex. 505 at 53 (quoting Amazon Human Resources (“HR”) Manager Erin Klump as stating that “[b]reaks and lunches have not been defined for the GSCC. People come and go as they please.”).) Shortly after moving into the supervisory role, Mr. Peterson “made [his] expectation surrounding breaks very clear.” (Peterson Decl. ¶ 3) His “expectation was that everyone would take three 15[-]minute breaks and a 30[-]minute lunch, and would [be] back in their seats . . . to ensure that they were ready to work again.” (Id.) He further states that he also told Team 4 “that anything outside of [the policy] would require escalation to [him], so that [he could] ensure proper coverage across the team.” (Id.)

         In emphasizing compliance with Amazon's break policy, Mr. Peterson began to focus on Ms. Ismail. (See Id. ¶¶ 5-6.) He “observed that Ms. Ismail often took 45-minute lunch breaks and paid breaks lasting up to 46 minutes and that she took paid breaks during every four-hour work segment.”[10] (Id. ¶ 5.) Mr. Peterson further attests that Ms. Ismail “often left the premises” and returned with “food from local restaurants.” (Id.) In addition to the longer breaks, Mr. Peterson also observed Ms. Ismail work longer than her maximum 12-hour shift. (Id. ¶ 7; see also id., Ex. 48A.) However, Ms. Ismail counters that she “had the fewest number of [lunch] breaks that went over 30 minutes between February 1, 2015, and May 8, 2015.” (Resp. at 7 (citing Feulner Decl. ¶ 23, Ex. 521 at 142-45).)

         On March 6, 2015, Mr. Peterson and Ms. Ismail had an introductory meeting. (Peterson Decl. ¶ 4; Ismail Decl. ¶ 22.) During that meeting, they discussed Ms. Ismail's breaks, and Ms. Ismail told Mr. Peterson that she took extended breaks to accommodate her prayer schedule. (Peterson Decl. ¶ 4.) Ms. Ismail told Mr. Peterson that she “prayed during [her] breaks” and “used the conference room” to do the prayers. (Ismail Decl. ¶ 22.) At that time, Ms. Ismail believed that Mr. Peterson had no problems with her taking extended breaks. (Id.) Mr. Peterson states that, based on the meeting, he “assumed that Ms. Ismail was combining some of her paid breaks to accommodate her prayers.” (Peterson Decl. ¶ 4.) It does not appear that they agreed to any plan concerning Ms. Ismail's breaks during this meeting. (See generally Peterson Decl.; Ismail Decl.)

         On March 12, 2015, Mr. Peterson “reached out to [his] manager, who reached out to [HR], and requested guidance” about Ms. Ismail's need to take longer breaks. (Peterson Decl. ¶ 6; see also id., Ex. 48.) Amazon's HR department advised Mr. Peterson “to have a conversation with Ms. Ismail concerning [his] expectations around break times and seek to understand the reasons she was taking such long breaks.” (Id. ¶ 6.) A couple of weeks later, Mr. Peterson also notified HR that Ms. Ismail worked 20 minutes past her maximum 12-hour shift. (Id. ¶ 7; see also id., Ex. 48A.)

         Mr. Peterson and Ms. Ismail met again on March 27, 2015. (Peterson Decl. ¶ 8; Ismail Decl. ¶ 24.) During that meeting, Ms. Ismail informed Mr. Peterson that “she combine[d] prayers, not breaks as [he] had assumed, and because she combined prayers, she needed slightly longer breaks.” (Peterson Decl. ¶ 8.) According to Mr. Peterson, slightly longer breaks were permissible but he wanted to “establish[] clear expectations concerning how much time she would be taking.” (Id.) Ms. Ismail states that it “was difficult for [her] to identify a specific amount of time” she needed for prayers because she did not “necessarily spend [her prayer time] watching the clock.” (Ismail Decl. ¶ 24.) Mr. Peterson states that Ms. Ismail agreed that 20 minutes per break and a 30-minute lunch break would suffice (Peterson Decl. ¶ 8), while Ms. Ismail states that she “agreed to try” the 20-minute breaks (Ismail Decl. ¶ 24). After the meeting, Mr. Peterson emailed Mr. Butler to memorialize his understanding that Ms. Ismail take 20-minute breaks going forward. (Peterson Decl. ¶ 8; see also id., Ex. 49 at 2 (emailing Mr. Butler a summary of the purported agreement).)

         On March 28, 2015, Mr. Peterson states that Ms. Ismail took a 42-minute lunch break. (Id. ¶ 9; see also id., Ex. 50 (stating that although Ms. Ismail clocked in at the 30-minute mark, she remained on break-and did not work-for an additional 12 minutes).) Ms. Ismail disputes that contention.[11] (Resp. at 7.) Mr. Peterson emailed Ms. Ismail to remind her of the agreement from the previous day, and emailed Mr. Butler to inform him that Ms. Ismail's break extended beyond the agreed 30 minutes. (Peterson Decl. ¶¶ 9-10.) Ms. Ismail responded that 20-minute breaks were in fact not long enough and said she needed three 30-minute breaks instead. (Id. ¶ 10; see also Ismail Decl. ¶ 25 (“ . . . I indicated that I felt like 20 minutes was too short. . . . and that I needed thirty minutes.”).) Mr. Peterson conveyed that request to HR. (Peterson Decl. ¶ 10.) Ms. Ismail then emailed Mr. Butler on March 29, 2015, because she felt that Mr. Peterson “was becoming increasingly hostile and fixated about wanting to talk about [her] breaks.” (Ismail Decl. ¶ 25.)

         Also on March 29, 2015, Ms. Ismail took another a 42-minute lunch and again worked past her 12-hour shift. (Peterson Decl. ¶¶ 11-12.) During this same general timeframe, Ms. Matteson reported to Mr. Peterson that Ms. Ismail had called her coworkers “lazy asses, ” which Ms. Ismail disputes. (Id. ¶ 13; Ismail Decl. ¶ 27 (“. . . I never said that people were lazy asses.”).) On March 31, 2015, HR “approved giving Ms. Ismail a documented verbal coaching concerning her long lunch breaks.” (Peterson Decl. ¶ 12; see also Renner Decl. ¶ 4.) On April 2, 2015, Mr. Peterson met with Ms. Ismail to deliver the “coaching.” (Peterson Decl. ¶ 12.)

         During the April 2, 2015, coaching session, Mr. Peterson asked Ms. Ismail to sign a document stating that she had violated Amazon's rules because she took long lunches. (Ismail Decl. ¶ 30; Peterson Decl. ¶ 12.) She refused to sign because she thought the document was incorrect. (Id.; see also Peterson Decl. ¶ 12.) At this time, Ms. Ismail asked Mr. Peterson to involve HR in future meetings and told him she felt he was discriminating against her by “treating [her] breaks differently than others[' breaks].”[12](Ismail Decl. ¶ 30.)

         Two other events also occurred on April 2, 2015. First, Ms. Ismail met with Mr. Butler to discuss Mr. Bland's “favoritism toward other employees, Mr. Peterson's discrimination and harassing [her] related to [her] prayer breaks, and the lack of teamwork in Team 4.” (Ismail Decl. ¶ 28.) She initially thought the “meeting went well because Mr. Butler told [her] that there were lots of issues that the GSCC needs to fix and that he would work on it.” (Id.) Second, later in the day, Ms. Ismail noticed that her prayer cloth was “in a different cubby and was folded in a different way” and “saw that there was a big boot mark” on it.[13] (Id. ¶ 29; see also Ismail Dep., Ex. 19 (showing the marks on Ms. Ismail's prayer cloth).) She felt “terrified and traumatized” and could not complete her prayers because her “prayer items must be clean in order for [a] prayer to be accepted.” (Id.) Ms. Ismail infers that Mr. Peterson intentionally stepped on her prayer cloth because she noticed that he wore boots that night and he had been focused on her breaks.[14] (Id.) By the end of her shift that day, Ms. Ismail felt that her earlier conversation with Mr. Butler had been futile because she continued “to feel discriminated against.” (Ismail Decl. ¶ 31.)

         On April 7, 2015, Mr. Butler sent an email to Kristen Macklin in Amazon's HR department, reporting Ms. Ismail's “insubordination” and “highly recommend[ing]” that Amazon “move to termination.” (Feulner Decl. ¶ 19, Ex. 517 at 54-55.) Ms. Macklin, however, informed Mr. Butler that termination could result only from an investigation into Ms. Ismail's conduct. (Id. at 53.) Accordingly, Paige Renner from HR met with Ms. Ismail that same day to interview her. (See Renner Decl. ¶ 5; see also id., Ex. 67 (notes of the meeting).) During that meeting, Ms. Renner discussed Ms. Ismail's breaks, her need to adhere to 12-hour shifts, her coworkers' reports of unprofessional conduct, and her failure to complete the self-review. (See MSJ at 11; Renner Decl. ¶ 5, Ex. 76 (attaching notes from the meeting).) Ms. Renner told Ms. Ismail that she would look into the policy regarding Ms. Ismail taking additional break time to allow for her prayers and that Ms. Renner thought any additional time would be unpaid. (Renner Decl. ¶ 5, Ex. 76, at 2.) Ms. Renner also “coached” Ms. Ismail regarding not working longer than 12 hours unless she had her manager's approval. (Id. at 2-3.) Ms. Renner also asked Ms. Ismail about her coworkers' reports of “outbursts” and her refusals to follow her supervisors' instructions. (Id. at 3.) Finally, Ms. Ismail explained that she had completed her self-evaluation but a computer glitch had erased it. (Id.) Ms. Ismail nevertheless agreed to complete the evaluation during that shift. (See id.)

         Immediately after the April 7, 2015, meeting, Ms. Ismail worked on her self-evaluation. (Peterson Decl. ¶ 14; Ismail Decl. ¶ 33.) The parties offer differing accounts of Mr. Peterson's interactions with Ms. Ismail while she was working on the evaluation. (Compare Peterson Decl. ¶¶ 14-15, with Ismail Decl. ¶ 33.) Mr. Peterson states that he asked Ms. Ismail if she was going to respond to her alarms when she returned to her desk after meeting with Ms. Renner. (Peterson Decl. ¶ 14.) Ms. Ismail told him no because “she was working on something” for HR. (Id.) Mr. Peterson then asked her whether she could do that while she answered alarms, and she said she could not. (Id.) Ms. Ismail contends that Mr. Peterson had an “aggressive and intimidating” tone during this incident and “became more aggressive” as he questioned her about answering the alarms. (Ismail Decl. ¶ 33.) She also states that Mr. Peterson told her to cover the alarms while she worked on the evaluation. (Id.) Ms. Renner told Ms. Ismail to have Mr. Peterson call Ms. Renner. (Id. ¶ 34.) After Mr. Peterson spoke to Ms. Renner, Mr. Peterson told Ms. Ismail to “do what [she] was originally doing.” (Id.) She states that she missed her prayer that day because she “was trying to complete [her] review.” (Id.)

         On April 12, 2015, Mr. Bland issued Ms. Ismail her first performance review as an Amazon employee and rated her as “needing improvement.”[15] (Bland Decl. ¶ 10, Ex. 45; Feulner Decl. ¶ 19, Ex. 517.) Mr. Bland also rated Mr. Chavez as needing improvement.[16] (See Bland Decl. ¶ 6; see also id., Ex. 43 (referencing a performance improvement plan for Mr. Chavez)); Feulner Decl. ¶ 3, Ex. 501 at 26.) Ms. Ismail refused to acknowledge that she had received her review, and Mr. Bland reported that refusal to HR. (Bland Decl. ¶¶ 10-11, Exs. 46-47.) After this meeting, Ms. Matteson reported to Mr. Peterson that Ms. Ismail made the following comments when she returned to her work station after the performance review: “The nerve”; “Waste of my fucking time”; “This place gets funnier and funnier by the minute”; “Retarded ass”; and “This place was pure fucking comedy.” (Bland Decl. ¶ 16.) Ms. Ismail states that she never used that language or caused a disruption. (See Ismail Decl. ¶ 27.)

         On April 13, 2015, Mr. Butler again asked HR for approval to terminate Ms. Ismail based on her failure to timely complete the self-evaluation portion of her performance review, refusal to meet with Mr. Peterson, and her disrespect toward her managers and coworkers. (Renner Decl. ¶ 7.) HR instead decided to further investigate those matters. (Id.) Thus, on April 20, 2015, Ms. Renner and HR “business partner” Amanda Berggren interviewed Ms. Ismail and the other Team 4 members. (Id.; see also id., Ex. 69 (attaching notes of the interviews).) During the interviews, most of Ms. Ismail's coworkers reported that Ms. Ismail had made inappropriate comments or been rude to other Team 4 members. (See, e.g., id., Ex. 69 at 5-6, 12-13.) Saul Chavez, however, stated that he had not witnessed any “inappropriate” behavior on Team 4. (Id. at 7; see also Id. at 9-10.)

         Also on April 20, 2015, Ms. Matteson complained to Mr. Peterson that Ms. Ismail lacked professionalism in an interaction. (See Peterson Decl. ¶ 17; see also Id. ¶¶ 13, 16 (describing other incidents of unprofessional behavior).) Based on that complaint, on April 21, 2015, Ms. Berggren and Steven Jensen, Senior Program Manager for Global Security Operations, interviewed Ms. Ismail about the incident involving Ms. Matteson. (Renner Decl. ¶ 8, Ex. 70 at 2-3.) On April 23, 2015, Ms. Renner and Ms. Berggren concluded their investigation and “recommended that Amazon end its employment relationship with Ms. Ismail based on her violations of Amazon's standards of conduct.” (Id. ¶ 9.) On April 24, 2015, they forwarded their conclusion to Ms. Klump. (Id., Ex. 72.) Instead of terminating Ms. Ismail, however, Amazon decided to issue her a final written warning on May 18, 2015. (Peterson Decl. ¶ 18, Ex. 58.)

         On April 24, 2015, Ms. Ismail made her first complaint with Amazon's Ethics Hotline.[17] (Renner Decl. ¶ 10, Ex. 74 (“1st Ethics Compl.”) at 2.) She reported that Mr. Peterson was discriminating against her because of how he treated her breaks. (Id. at 4.) She said she had been “denied overtime or a transfer, ” not “given any projects, ” and “isolated from her team.” (Id.) She reported that Mr. Peterson was “fine” with her prayer breaks at first, but “later started asking why [the] breaks were taking so long” and “tried to write [her] up for taking prayer breaks.” (Id.)

         On April 26, 2014, Ms. Matteson again reported that Ms. Ismail had made unprofessional comments. (Peterson Decl. ¶ 19; id. ¶ 19, Ex. 59 at 2.) Mr. Peterson attempted to meet with Ms. Ismail “to seek to understand what had occurred, ” but Ms. Ismail refused to meet. (Id. ¶ 19.)

         On May 5, 2015, Amazon confirmed that it would treat the additional time Ms. Ismail needed for her breaks as it treated additional break time for nursing mothers: Any additional break time beyond the paid 15-minute break periods would be allowed but unpaid. (Berggren Decl. (Dkt. # 28) ¶ 4; see also id., Ex. 76 at 2 (“[T]his is a religious accommodation and should be handled just like a nursing mother. Any time [s]he takes for this accommodation should be coded as unpaid.”); Renner Decl. ¶ 2; see also Id. ¶ 6, Ex. 68.)

         On May 8, 2015, Ms. Berggren and Mr. Peterson met with Ms. Ismail to relay that arrangement. (Berggren Decl. ¶¶ 4-5; Peterson Decl. ¶ 20; Ismail Decl. ¶ 38.) Ms. Berggren told Ms. Ismail that Amazon would “allow” Ms. Ismail to pray and would accommodate her prayer by providing her with additional “excused, ” unpaid time in addition to her paid breaks.[18] (Berggren Decl. ¶ 5; Ismail Decl. ¶ 37.) Ms. Ismail was offended by Ms. Berggren's comment that Amazon would “allow” Ms. Ismail to pray. (Ismail Decl. ¶ 38; see also Berggren Decl. ¶ 5, Ex. 77 at 2.) Ms. Ismail refused the unpaid break time because she felt that “was being treated differently than other employees by being required to clock out” for prayer breaks, which would decrease her pay. (Id.; Berggren Decl. ¶ 5, Ex. 77 at 2) According to Mr. Peterson, Ms. Ismail became “irate, hostile, and raised her voice.” (Peterson Decl. ¶ 20; see also id., Ex. 62 (Dkt. # 33-16) at 2-3.) Mr. Peterson contends that he enforced Amazon's break policy consistently across the department and had spoken specifically with three other employees about the expectation. (Id. ¶ 20, Ex. 62 at 2.) Mr. Peterson denied knowing about the damage to Ms. Ismail's prayer cloth. (Id. at 3.)

         Ms. Ismail terminated the meeting to phone in a second complaint to the Ethics Hotline. (Id. ¶ 20, Ex. 62 at 2; Ismail Decl. ¶ 38; Berggren Decl. ¶ 6, Ex. 78 (“2d Ethics Compl.”).) Ms. Ismail identified three other Amazon employees who she believed were paid for their prayer time and stated that she believed it was unfair that Amazon paid those employees for their prayer time but would not pay her. (2d Ethics Compl. at 3.) Ms. Ismail also stated that Mr. Peterson had stepped on her prayer cloth, leaving a boot mark on it. (Id.) Ms. Ismail also complained that Mr. Peterson yelled at her to clear a security alarm at the time she was writing a statement for HR. (Id.).

         After the May 8, 2015, meeting, Mr. Peterson contends that Ms. Ismail's breaks for the rest of that shift were longer than allowed. (Peterson Decl. ¶ 21, Ex. 63 (Dkt. # 33-17); id. ¶ 21, Ex. 64 (Dkt. # 33-18); id. ¶ 2, Ex. 65 (Dkt. # 33-19).) Specifically, he stated that she spent 80 minutes “off task . . . away from [her] work station, while clocked in.” (Id. ¶ 21, Ex. 63 at 2; id. ¶ 22, Ex. 65 (stating that Ms. Ismail spent 126 minutes “off task” during that shift).) Ms. Ismail asserts that Mr. Peterson knew she was calling the Ethics Hotline during that time. (Resp. at 11.)

         Based on the May 8, 2015, ethics complaint, Amanda Murrow, an HR “business partner” at Amazon, conducted a second investigation and interviewed all of the Team 4 members. (Murrow Decl. (Dkt. # 32) ¶¶ 1, 3, 5-7.) Ms. Murrow could not substantiate Ms. Ismail's allegations. (Id. ¶ 3; see also id., Ex. 81 (“5/25/15 Rep.”) at 2.) Of the five employees interviewed, only one-Saul Chavez-reported that Mr. Peterson was unfair. (Id. at 6.) Mr. Chavez cited Mr. Peterson's “coaching” of him for coming back late after a lunch break and Mr. Peterson asking Ms. Ismail to multitask. (Id.) The other employees reported that Mr. Peterson treated everyone fairly and that they had never witnessed Mr. Peterson yelling at any employees. (See Id. at 5-7.) In addition, Ms. Murrow interviewed the three other Muslim employees Ms. Ismail identified about their prayer break time. (Id. at 5.) Those employees reported that they did their prayers during the three paid breaks and the one unpaid lunch break and did not need additional time. (Id.)

         Based on her interviews, Ms. Murrow concluded that she could not substantiate Ms. Ismail's claims that (1) Ms. Ismail had been unable to observe her regular prayer times, (2) Mr. Peterson had discriminated against Ms. Ismail, (3) other Muslim employees were paid for their prayer time beyond the three paid breaks Amazon provided to every employee, (4) Mr. Peterson stepped on her prayer cloth, or (5) Mr. Peterson yelled at Ms. Ismail. (Id. at 8-9.) Finally, Ms. Murrow concluded that there was a hostile work environment, but “not for the reasons” Ms. Ismail identified. (Id. at 8.) Ms. Murrow determined that Ms. Ismail's “verbal outbursts and erratic behavior over the last few months have created an uncomfortable and stressful environment for five out of the seven members of the team.” (Id.)

         As a result of the investigation, on May 18, 2018, Amazon issued Ms. Ismail “a Final Written Warning for her unprofessional behavior.”[19] (Id. at 9; see also Peterson Decl. ¶ 18, Ex. 58.) The warning stated that “[o]ver the course of the last two months, you have exhibited a trend of inappropriate behavior that violates Amazon's published Standards of Conduct. Specific examples include an outright refusal to cooperate or communicate with your manager and/or supervisor including intentionally disregarding instructions.” (Id. at 2.)

         Ms. Ismail did not go back to work after May 8, 2015, and remains formally on leave from Amazon.[20] (Ismail Decl. ¶ 39.) She “felt too traumatized and stressed about work” and “ended up going to a mental health provider in Washington, ” who told her she “should not go back to work.” (Id.)

         On May 22, 2015, Ms. Ismail filed a charge with the Equal Employment Opportunity Commission (“EEOC”). (See Blatt Decl. ¶ 2, Ex. 1 (Dkt. # 30-1) (“EEOC Letter”) at 2.) On August 2, 2016, the EEOC determined that it was “unable to conclude that the information obtained establishes violations of the statutes, ” and issued a Right to Sue letter. (Id.; see also Feulner Decl. ¶ 22, Ex. 520, (Dkt. # 39-2) at 139.)

         B. Procedural Background

         On October 28, 2016, Ms. Ismail filed this lawsuit pro se. (See IFP Mot. (Dkt. # 1); Compl. (Dkt. # 3).) On January 12, 2017, Ms. Ismail moved for the appointment of counsel (MTA (Dkt. # 12)), and per the Western District of Washington's Pro Bono Screening Committee's recommendation, the court appointed counsel on March 23, 2017 (3/23/17 Order (Dkt. # 15); see also 2/23/17 Order (Dkt. # 14)). After counsel for Ms. Ismail appeared, Ms. Ismail amended her complaint on June 30, 2017, asserting seven claims against Amazon. (See FAC (Dkt. # 22); see also Stip. (Dkt. # 20).) Ms. Ismail brings claims under Title VII of the Civil Rights Act of 1964 for disparate treatment based on her race and religion, for a hostile work environment based on her religion, and for retaliation. (FAC ¶¶ 5.1-5.7, 5.12-5.13); 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). She also brings claims for violation of 42 U.S.C. § 1981 based on racial discrimination and retaliation. (Id. ¶¶ 5.8-5.11); 42 U.S.C. § 1981. Finally, she brings claims for racial and religious discrimination and retaliation under the Arizona Civil Rights Act (“ACRA”), Ariz. Rev. Stat. § 41-1461, et seq.[21] (Id. ¶¶ 5.14-5.15.)

         Amazon moves for summary judgment on all of Ms. Ismail's claims. (See generally MSJ.) The court now addresses the motion.

         III. ANALYSIS

         A. Legal Standard

         Summary judgment is appropriate if the evidence 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “‘genuine' only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49).

         The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of a dispute of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party will bear the burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a fact finder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252.

         The court must “view the facts and draw reasonable inferences in the light most favorable to the [nonmoving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are “jury functions, not those of a judge.” Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ...


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