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Kwang v. Royal Canin USA, Inc.

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

April 16, 2019

ALAN KWANG, Plaintiff,



         THIS 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.


         Plaintiff 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.)

         Plaintiff, 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.)

         Plaintiff 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.” (Id.)

         At 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.)

         Sometime 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 142:8-9.)

         Poor Performance Review

         Defendants 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.).

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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 61:11-23; 62:9-12.)

         Around 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.)


         Shortly 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.)

         According 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 187:17-188:12.)

         Plaintiff 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.)


         Defendants 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.)

         Plaintiff 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.)

         Royal 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. (Id.)

         Plaintiff 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, ...

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