United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT; GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STRIKE
J. PECHMAN, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Royal Canin USA,
Inc.'s Motion for Summary Judgment (Dkt. No. 27) and
Plaintiff's Motion to Strike (Dkt. No. 37). Having
considered the parties' briefs, and the documents
submitted in support thereof, the Court DENIES
Defendants' Motion for Summary Judgment and GRANTS in
part and DENIES in part Plaintiff's Motion to Strike.
Alan Kwang filed suit against his former employer Royal Canin
USA, Inc. (“Royal Canin”) and DOES 1-10
(collectively, “Defendants”) for employment
discrimination based on race. (Dkt. No. 1.)
who is Chinese-American, worked as a Regional Sales Manager
for Royal Canin from May 2014 through January 2017. (Dkt. No.
1, ¶¶ 8, 16; Dkt. No. 36, Smith Decl., Ex. A at
19:15-19, 30:2-7.) Around January 2016, Victoria Burke, who
is Caucasian, became Plaintiff's direct supervisor. (Dkt.
No. 1, ¶ 9.) Plaintiff alleges that Ms. Burke
immediately began to make frequent, discriminatory comments
about Plaintiff's race and that these discriminatory
comments continued throughout the time Ms. Burke was his
supervisor. (Id., ¶¶ 9-11.)
alleges several specific discriminatory comments from Ms.
Burke. Once, during a meeting, several Royal Canin employees
were trying to decide where to eat, when one employee
commented that the group should not go to one restaurant
because “the food could be dog for all you know.”
(Dkt. No. 36, Ex. A at 130:20-131:20.) According to
Plaintiff, “Ms. Burke replied that Plaintiff would be
okay with that because his people eat that.”
another meeting, Plaintiff alleges that Ms. Burke asked for a
volunteer to set up a dual screen. (Id.) When
Plaintiff raised his hand, Ms. Burke stated, “I kn[e]w
you could Alan. Your people are great at this.”
(Id. at 133:4-19.) When attempting to work out a
formula on an Excel spreadsheet, Plaintiff alleges Ms. Burke
said, “his people are better at math, ” while
referring to Plaintiff. (Id.) Plaintiff also alleges
that when Ms. Burke was attempting to resolve technology
issues she would comment that she was glad she had an Asian
person on her team. (Id. at 137:13-138:17.) In
another instance, when Ms. Burke was deciding which Regional
Manager would sell to a veterinary clinic, she discovered one
of the doctors was Asian and asked Plaintiff,
“Wouldn't it be easier if you took all the Asian
ones?” (Id. at 149:18-150:15.)
in the late spring or early summer of 2016, Plaintiff told
Ritston Brevitt, an Area Manager, and Kathy Joyce,
Plaintiff's former Area Manager, about Ms. Burke's
comments. (Id. at 129:24-130:21, 131:20-133:19; Ex.
G, ¶ 8.) According to Plaintiff, after he told Mr.
Brevitt about several specific discriminatory comments, Mr.
Brevitt told him “not to make a big deal out of it so
you don't create a scene or give them anything to respond
to.” (Id. at 134:1-3.) After speaking with Mr.
Brevitt, Plaintiff spoke with Ms. Burke about her joking,
telling her that “sometimes her humor was
inappropriate, ” without giving specific examples or
telling her that he felt these jokes were discriminatory.
(Dkt. No. 28, Gallagher Decl., Ex. A at 142:12-16.) Plaintiff
testified that during this conversation he “was trying
to tiptoe around it in order to preserve the relationship
that I had with [Ms. Burke].” (Id. at
contend that Plaintiff was failing to perform many of his
primary duties as a Regional Manager. (Dkt. No. 27 at 7-13.)
For example, Plaintiff provided only infrequent coaching
sessions to his direct reports, as opposed to the 48 he was
required to provide each year. (Dkt. No. 34, Mackin Decl.,
¶ 7; Dkt. No. 31, Gauthier Decl., ¶ 3, Dkt. No. 33,
Germanis Decl., ¶¶ 3-4; Dkt. No. 29, Benzinger
Decl. ¶ 3). Defendants also contend that Plaintiff
“had very poor interactions with his District
Managers” (Mackin Decl., ¶ 4), was “very
negative in his comments and communications, but would not
offer a solution to his criticisms” (Id.
¶ 5), expressed a negative attitude during a Gallup
Impact Planning session (Dubois Decl., ¶ 11), and would
often not respond to a Key Account Manager's questions
for weeks at a time (Mackin Decl. ¶ 4). According to
Defendants, Plaintiff also failed to perform many of the
administrative tasks that were part of his job as a Regional
Manager. (Dkt. No. 27 at 10.) Plaintiff admits he was late
submitting his expense reports (Dkt. No. 28, Ex. A at
83:18-25), calibration ratings (Id. at 120:4-16),
and line manager comments (Id.).
disputes the extent and severity of many of Defendants'
allegations about his performance. (See Dkt. No. 35
at 13-17.) For example, Plaintiff contends that he received
conflicting expectations on field coaching reports. (Dkt. No.
36, Smith Decl., Ex. A at 52:3-55:1, 57:6-15, 59:9-16.) On
Expense Accrual Summaries sent by Ms. Burke to her team in
August and November 2016, Plaintiff was in third or fourth
place out of eight for timeliness. (Dkt. No. 36, Smith Decl.,
Exs. O, P.)
also points to evidence that he was performing some aspects
of his job well. In Plaintiff's 2016 Performance and
Development Review, Victoria Burke commented that,
“This year Alan's regional team has over-delivered
on sales growth objectives and met expectations for their
[Key Performance Indicator] delivery.” (Smith Decl.
Exhibit H at ¶ 000026.) And Plaintiff's Gallup
Survey score, one metric Royal Canan uses to assess Regional
Managers, improved in 2016. (Id., Ex. G at 70:2-22.)
also points to employees with worse performance issues who
ultimately fared better at Royal Canan: Bill Adams and Eric
Pruitt. (See Dkt. No. 35 at 14-16.) Bill Adams also
reported directly to Ms. Burke, submitted late expense
reports, had issues with field coaching, and was the subject
of behavioral complaints, but was not terminated. (Dkt. No.
36, Smith Decl., Ex. B at 17:7-13; 18:3-19:24; Id.,
Ex. L 358-61.) Eric Pruitt, another Regional Manager Ms.
Burke supervises, received “below expectations”
reviews in 2015 and 2017 but was not placed on an Off-Track
plan and was not terminated. (Id., Ex. B at
December 22, 2016 Plaintiff received a below expectations
performance review and was set to be placed on an Off-Track
Plan. (Dkt. No. 28, Gallagher Decl., Ex. A at 175:4-5;
Id., Ex. B at 51:8-18.) Plaintiff's poor review
from Ms. Burke was his first poor performance review with
Royal Canan. (Id., Exs. E-F.)
after receiving his poor review, Plaintiff alleges he made a
formal complaint to Defendants' human resources
representative, Lindsay Dugger. (Id. 156:23-158:5,
177:3-10.) Plaintiff contends that Ms. Dugger told him
“it was all in [his] head and that [he was] being too
sensitive to this” and denied that Ms. Burke had taken
any retaliatory action against him. (Id. at
129:6-17.) Ms. Dugger denies receiving any complaints of
harassment or discrimination against Ms. Burke or having any
discussion with Plaintiff about derogatory comments. (Dkt.
No. 28, Gallagher Decl., Ex. C at 15:25-16:4; 19:19-22.)
Plaintiff claims Ms. Dugger lacks credibility. (Dkt. No. 35
at 12.) Kathy Joyce, one of Defendants' former employees
testified that she repeatedly complained to Ms. Dugger about
being harassed and threatened by another employee. (Dkt. No.
36, Ex. D, ¶ 7.) After several complaints, Ms. Joyce had
a conference call with Ms. Dugger, where Ms. Dugger
“claimed to not understand the issue, ” and
“led Ms. Joyce to believe she had not fully read my
written documentation, ” asking Ms. Joyce to explain
what happened. (Id.)
to Plaintiff, after speaking with Ms. Dugger he called a
Royal Canin ombudsman, who suggested a three-way conference
call with Ms. Burke. (Smith Decl., Ex. A at 181:9-182:12.)
Plaintiff alleges that during the call, Ms. Burke initially
denied making the comments, but later said Plaintiff took
them the wrong way. (Id. at 185:2-16.) After the
call, the ombudsman offered to speak with Ms. Burke at the
National Sales Meeting in January. (Id. at
alleges that Ms. Burke is also not credible regarding
Plaintiff's reporting. (Dkt. No. 35 at 12.) Ms. Burke
testified that she was unaware of Plaintiff's allegations
until she reviewed the interrogatories in this matter. (Dkt.
No. 36, Ex. B at 35:21-36:15.) But in notes Ms. Burke took
during her phone call with the ombudsman, she wrote
“jokes - m[anager] meeting ‘foods,'
Alan's peoples . . . insensitive comments, ”
implying Ms. Burke was aware of Plaintiff's allegations
long before she received his interrogatory responses.
(Id., Ex. I at 12.)
allege that two events occurred at Royal Canin's national
sales meeting in the third week of January 2017 that led to
Plaintiff's termination. (Dkt. No. 27 at 16-17.) First,
Defendants allege that during the sales meeting, Ms. Burke
walked in on an argument between two of Plaintiff's
direct reports and saw “Plaintiff with his head down
closing his computer or shutting off the projector as if he
were ignoring the situation.” (Dkt. No. 28, Gallagher
Decl., Ex. B. at 32:24-33:2; Dkt. No. 33, Germanis Decl.
¶ 11.) Defendants also allege that several district
managers saw Plaintiff leave during an awards presentation
where another regional manager received an award. (Dkt. No.
29 Benzinger Decl. ¶ 11; Dkt. No. 31 Gauthier Decl.
¶ 12; Dkt. No. 33, Germanis Decl. ¶ 13.) Ms. Burke
was informed that Plaintiff stood, said “that's
bullshit, ” and walked out of the awards. (Dkt. No. 28,
Gallagher Decl., Ex. B at 85:10-14.)
disputes these incidents. (Dkt. No. 35 at 17.) He
acknowledges that an argument occurred but asserts that he
ended the argument without Ms. Burke's assistance. (Dkt.
No. 36, Smith Decl., Ex. A at 189:15-190:8.) Plaintiff also
denies making the comment Defendants' allege during the
awards dinner. (Id. at 192:11-193:2; Id.,
Ex. C at ¶ 6.)
Canan terminated Plaintiff's employment on January 20,
2017. (Dkt. No. 28, Gallagher Decl., Ex. A at 193:13-25.) On
or about November 2, 2017, Plaintiff filed a charge of
discrimination and retaliation with the United States Equal
Employment Opportunity Commission (“EEOC”),
Seattle Field Office. (Dkt. No. 1, ¶ 19.) On December 6,
2017, the EEOC mailed Plaintiff a Right-to-Sue Letter.
has asserted four causes of action under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000 et seq., based on harassment, discrimination,