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Kwesele v. King County

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

April 30, 2019

JOHN KWESELE, Plaintiff,
KING COUNTY, et al., Defendants.


          The Honorable Richard A. Jones, United States District Judge.

         This matter comes before the Court on Plaintiff's Motion for a New Trial or, Alternatively, to Alter or Amend Judgment. Dkt. # 48. Defendants oppose, and Plaintiff has filed a Reply. Dkt. ## 49, 50. For the reasons stated below, the Court DENIES Plaintiff's Motion.

         I. BACKGROUND

         On January 18, 2019, this Court granted Defendants' Motion for Summary Judgment against Plaintiff on his Section 1981 race discrimination and retaliation claims, and Section 1983 claims. Dkt. # 43. The Court outlined the relevant facts of this case in its prior Order and will not reiterate those facts here. Id. On February 14, 2019, Plaintiff filed the instant Motion, arguing that the Court should grant Plaintiff a new trial or amend its prior judgment. Dkt. # 48.


         The Court construes Plaintiff's Motion as one arising under Federal Rule of Civil Procedure 59(e). Rule 59(e) allows a plaintiff to file a motion to alter or amend a judgment “no later than 28 days after the entry of judgment.” Fed. R. Civ. Proc. 59(e). Although a district court may extend filing times for good cause, Rule 6(b)(2) expressly prohibits the court from extending time to act under Rule 59(e). Fed. R. Civ. Proc. 6(b)(2). A Rule 59(e) motion “‘should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (emphasis in original).


         Plaintiff argues that this Court's decision dismissing his Section 1981 discrimination and retaliation claim should be amended due to (1) the Court committing legal and factual error; (2) there was an intervening change in the law with respect to the retaliation claim; and (3) for public policy reasons. Dkt. # 48. For the reasons that follow, the Court concludes that it did not err in dismissing Plaintiff's Section 1981 discrimination and retaliation claims, and will not amend its ruling on public policy grounds.

         A. The Court Did Not Err in Dismissing Plaintiff's Discrimination Claim

         The Court agrees with Plaintiff that Section 1981 imposes liability against employers for hostile work environments. Dkt. # 48 at 4. And it is true that the Court found the evidence of racist behavior by Plaintiff's colleagues “may have supported a hostile work environment claim, ” had Plaintiff actually pled such a claim. Dkt. # 43 at 17 n.7. But as the Court already explained, “Plaintiff is not making a hostile work environment claim in this lawsuit; he is alleging claims of racial discrimination and retaliation against him by King County and his direct supervisors through his termination and probation extensions.” Id. at 19. Plaintiff provides no authority that the need to plead a hostile work environment claim is obviated by pleading other Section 1981 claims for discrimination and retaliation. Hostile work environment claims are distinct claims, with distinct elements, and must be analyzed separately from discrimination and retaliation claims. See, e.g., Atkins v. Commercial Office Interiors, C06-1594-JCC, 2007 WL 4561091, at *3 (W.D. Wash. Dec. 20, 2007) (finding that discrimination and hostile work environment claims are “distinct Title VII claims” with differing elements, and considering them separately).

         Plaintiff lambasts the Court for providing a “veritable blueprint” for employers to “passively tolerate discrimination, ” but ignores his inexplicable failure to ever properly assert a hostile work environment claim. Dkt. # 48 at 14. Plaintiff has still not argued that he is, or was ever, asserting a Section 1981 hostile work environment claims against Defendants. Plaintiff has not filed, for instance, a Rule 15(b)(2) motion or made any other attempt to amend his pleadings to add a hostile work environment claim. As such, this claim has never been properly before the Court, and this status continues to this day.

         Absent an active claim for hostile work environment, Plaintiff's attempt to shoehorn in this unpled claim to his discrimination claim falls short. Plaintiff's Motion again fails to show that this environment was the product of any action or discriminatory intent on the part of the relevant decision-makers. The Court has already addressed the other alleged acts of discrimination by other King County employees Doug Moore, Annette James, Kevin Winter, and Glenn Brockett, and found that Plaintiff failed to connect these actions to Plaintiff's termination by the relevant decision-makers. Dkt. # 43 at 17-18. Plaintiff provides little reason for the Court to deviate from its conclusion.

         Importantly, Plaintiff's failure to articulate a causal link between his direct supervisor's actions and the alleged hostile environment distinguish this case from the two out-of-circuit authorities Plaintiff cites in his Motion. Dkt. # 48 at 15-16. In its previous Order, the Court determined based on the record that it was King County's ignorance and apathy that contributed to this environment, not the actions of Plaintiff's supervisors. Dkt. # 43 at 18-21. The Court's view of the record on this point remains the same. Plaintiff's charge in his Motion that his supervisors “were fabricating evidence against him in order to get him fired” is still not supported by citations to admissible evidence in the record. Dkt. # 48 at 8. The only evidence Plaintiff cites that is connected to Plaintiff's actual supervisors fails to indicate any discriminatory animus on the part of relevant decision-makers. For instance, alleged statements by Michael Avery that suggested Sound Transit disapproved of Plaintiff do not show any discriminatory intent on the part of the relevant decision-makers because, as the Court already determined, Sound Transit has no managerial authority over Plaintiff. Dkt. # 43 at 7.[1] Plaintiff does not challenge this finding, and fails to point to any evidence that Sound Transit played any role in taking any adverse action against him.[2]

         Plaintiff's Motion also largely ignores the Court's determinations that Plaintiff's prima facie discrimination claim failed on multiple prongs. First, Plaintiff has failed to meaningfully address the Court's finding that Plaintiff failed to show that similarly situated individuals outside his protected class were treated more favorably. Dkt # 43 at 14. Plaintiff still does not provide evidence that other fellow RSITs received different discipline, and does not address the Court's point that the ROW incident is of a different kind and severity entirely. Dkt. # 43 at 14-15. Second, Plaintiff fails to effectively counter that Plaintiff's multiple performance lapses still indicate that he was not meeting his employer's legitimate expectations. Dkt. # 43 at 12-14. The Court was particularly concerned with the Right-of-Way (“ROW”) incident, where Plaintiff's admitted failure to properly follow the ROW protocol put surveyors in serious danger and could have led to fatalities. Dkt. # 43 at 12-13. Plaintiff's actions during this incident, which included permitting surveyors to remain in the ROW for the trail tracks for an extended period of ...

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