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Black v. Grant County Public Utility District

United States District Court, E.D. Washington

June 26, 2019

WAYNE R. BLACK, Plaintiff,
v.
GRANT COUNTY PUBLIC UTILITY DISTRICT, a statutory nonprofit corporation, Defendant.

          ORDER DENYING MOTIONS TO STRIKE AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Cross-Motions for Summary Judgment by Plaintiff Wayne Black, ECF No. 66, and Defendant Grant County Public Utility District (the “PUD”), ECF No. 69. The parties also have moved to strike various documents associated with the Cross-Motions for Summary Judgment. The PUD moves to strike a portion of the expert testimony Black cited in support of his Motion for Summary Judgment. ECF No. 94. Black moves to strike declarations filed by the PUD in support of summary judgment, ECF Nos. 93, 110, and 79. ECF No. 114. The PUD moves to strike Black's reply. ECF No. 116. Having reviewed the Motions, the accompanying filings, and the relevant law, as well as having heard oral argument from the parties on May 22, 2019, the Court is fully informed.

         BACKGROUND

         Unless otherwise indicated, the following facts are undisputed.

         The PUD hired Black as a lineman on January 3, 2005. ECF No. 83-1 at 9. Black was then 47 years old with nineteen years of experience as a journey-level lineman. Id. at 17. The average age of the PUD's workforce is 46. ECF No. 81 at 2. Half of the Line Department is over forty. Id.

         Black is a lifelong member of the Church of Jesus Christ of Latter-day Saints (“LDS”), and he serves as a bishop in his local ward. ECF No. 83-1 at 5. Black recalled being asked by a fellow lineman, Eric Huber, around the time that he started working at the PUD, whether he was Mormon. Id. at 8-9. Huber also is Mormon. Id. at 9-10. Other than that brief interaction, which Black did not remember in detail, Black did not recall any other instances in which he was asked about his religion while working for the PUD. Id. at 10-11. He further asserted that he did not discuss his religion at the workplace and left “that at home, at the church.” Id. at 8. His coworkers did the same. Id. at 13. However, Black submitted that people at the PUD were aware of his religion, although he was not aware of how they knew. Id. at 11. When asked specifically whether, during his employment at the PUD, he ever heard anyone making negative or disparaging remarks about Mormonism or any religion, Black responded that he could not recall any instances of that nature. ECF No. 83-1 at 14.

         From 2005 through July 2016, Black had a clean record at the PUD, without any discipline, and received several employee recognition awards. ECF No. 83-1 at 19-20. Black became a temporary line crew foreman in March 2012 and was elevated to permanent line crew foreman in July 2013. Id. at 20-21.

         However, as early as 2014, [1] crew member Ryan Bingham reported to Line Superintendent Chris Heimbigner, Black's “boss's boss, ” that Black had asked Bingham and other crew members to report more time than they actually had worked. ECF Nos. 79-2 at 20; 89 at 2; 96 at 2.

         Bingham recalled that Heimbigner “some time later . . . called a foremen's meeting and distributed a document outlining his expectations for the line department, which included that, going forward, all overtime had to be approved in advance by a Supervising Foreman.” ECF No. 79-2 at 20. There is no indication that Heimbigner initiated an investigation into the allegations of inaccurate reports or that any discipline was contemplated or imposed.

         Tagging Incident

         Employees of the PUD who perform safety checks rely on clearance tags to confirm that electricity has been properly turned off at necessary points. ECF No. 71 at 2. In spring 2016, Heimbigner informed all foremen from the PUD's Line Department and Electric Shop that clearance tags for Motor Operated Disconnect (“MOD”) devices were to be hung on the device and not on the cabinet door. Id. at 3. Black maintains that he “barely” recalled the meeting at which Heimbigner gave the instruction and that he preferred the former practice of hanging the clearance tags on doors. ECF No. 83-1 at 418.

         During a safety inspection on July 12, 2016, PUD Power System Electrician Ron Dodd, acting as foreman at the time, found that Black had hung his clearance tags on the cabinet doors to the MOD device rather than on the device itself. ECF No. 71 at 2. In consultation with supervisors, Dodd refused to give clearance to allow a Hydro crew to begin work removing a transformer from a substation until the tags were placed in the correct position and removed from the incorrect location. Id. at 2-3; see also ECF No. 110-2 at 3. By telephone, System Operator Mike Lanes[2] and Heimbigner instructed Black to move the tags. ECF Nos. 74 at 5; 83-1 at 413; 110-2 at 2.

         When Dodd reperformed his safety check, he found that Black had made new tags and hung them in the correct location. ECF No. 74 at 6. However, the content of the new tags was incorrect, as it indicated that clearance had been ordered by Heimbigner, who was not authorized to give clearance or switching orders. Id. Black recalled that he did not think Dodd was qualified to direct Black to move the tags, and he did not know why Lanes and Heimbigner listened to him when they orally directed Black to move the tags. ECF No. 83-1 at 422-23. Black also opined that it “would have been probably proper” for Lanes and Heimbigner to have sent Black a printed switching order by courier ordering him to move the clearance tags, and he would have better understood the nature of the directive. Id. at 423. After the second failed clearance, Dodd released the Hydro crew for the day to return the next day, at which point Black had corrected the tags and Dodd accepted the clearance for the crew to work on the transformer. Id. at 3-4.

         At Heimbigner's request, Andrew Munro, Customer Service Division Director, Mike Tongue, then-Dispatch Manager, and Karrie Buescher, in Human Resources, investigated the matter and determined that a number of corrective actions were appropriate. ECF No. 76-1 at 2. The corrective action specific to Black entailed a written warning for failure to follow instructions as well as a two-day suspension without pay. ECF Nos. 74 at 7; 75 at 2; 76 at 6; 76-1 at 4; 76-2 at 2. The warning letter, signed by Black, cautioned, “Any future actions of this nature will result in further disciplinary action, including removal of foreman position and up to immediate discharge.” ECF No. 76-2 at 2.

         Tool Belt Incident

         On approximately September 21, 2016, lineman Austin Schwint reported to Heimbigner that Black had sold a tool belt that had been purchased by the PUD to a probationary lineman, Dillon Watkins. ECF Nos. 82 at 10; 83-1 at 400. Heimbigner recalled that Black had asked him in approximately February 2015 for the PUD to replace Black's tool belt on the basis that it was worn out and no longer fit him. ECF No. 82 at 9. The PUD purchased a new belt for Black and retained the invoice, stating a total cost of $501.11. ECF Nos. 82 at 9; 82-2 at 2.

         Heimbigner investigated the matter by interviewing Black and Watkins and reviewing PUD records and its Code of Ethics. ECF No. 82 at 11-12. According to Heimbigner, Black represented that he had intended to purchase a replacement belt himself, but had not yet done so. Id. at 11. Heimbigner “concluded that Mr. Black knew he had done something wrong because he had immediately pleaded for leniency.” Id. at 11. Black maintains that he had thought that the tool belt that the PUD had purchased for him became his property when it replaced his previous belt, which he had brought with him from his previous employment. ECF No. 95-2 at 12.

         Heimbigner concluded that Black had sold Watkins a tool belt, for $400, that was property of the PUD at the time it was sold, and that this action violated the PUD's ethics policy. ECF No. 82 at 11. Senior Human Resources Manager Darla Stevens and Munro also were involved in the ultimate determination of the appropriate level of discipline and supported Heimbigner's conclusion. ECF Nos. 81 at 5; 82 at 11-12.

         As a result of the tool belt incident, and in consideration of the previous tagging incident, the PUD demoted Black on October 4, 2016, from his foreman position to lineman and deemed him ineligible to bid on a foreman position for three years. ECF Nos. 76 at 10; 82 at 11; 83-1 at 172.

         Supervising Foreman Position

          Sometime in summer 2016, Black applied for a supervising foreman position with the PUD. ECF No. 83-1 at 20. Line crew foremen report to supervising foremen at the PUD. Id. at 24.

         On approximately September 21, 2016, Heimbigner informed Andrew Munro about receiving the report that Black had sold the PUD-purchased tool belt. ECF No. 76 at 10. However, Heimbigner and Munro decided not to inform other members of the supervising foreman hiring committee of the allegations. Id.

         On September 22, 2016. Black was interviewed by the committee, composed of three PUD managers and three union members. ECF No. 81 at 3. Black was approximately 58 years old at the time. ECF No. 83-1 at 20. Five of the committee members were over age 50. See ECF Nos. 73 at 1; 79 at 3. The three managers were Steven Fisher, Heimbigner, and Munro. ECF Nos. 76 at 8; 81 at 3. The committee interviewed Black's colleague Huber on the same day. Id. at 8. Munro recalls that the committee unanimously agreed that both candidates interviewed poorly. Id. at 9. Furthermore, the committee was unanimous that Black should not be awarded the position. Id.; see also ECF No. 73 at 5.

         The Collective Bargaining Agreement (“CBA”) in place at the time provided that the job posting for a supervising foreman “should include three years of experience as Foremen[.]” ECF No. 76 at 9. The managing members of the hiring committee sought guidance from Stevens regarding whether they could interview two other applicants for the position, both of whom did not have the requisite three years of experience as foreman. Id. Munro recalled that Stevens advised “that the CBA provided management a ‘right of selection,' which allowed [the committee] to interview the other two candidates in this scenario.” ECF No. 76 at 9; accord ECF No. 81 at 3. The committee interviewed two other candidates, Nick Sickels and Bingham. ECF No. 73 at 4-5. Committee member Fisher recounted that both Sickels and Bingham interviewed well, and the consensus of the committee was that they were both good candidates. Id. at 5. Since Sickels was only a few months shy of having three years of experience as a foreman, the committee awarded him the position in consideration of his seniority. Id. at 4-5.

         Distribution Dispatch Position

         In December 2016, Black applied for a lateral transfer to a training position in the Distribution Dispatch Department. ECF No. 95-2 and 14. Dispatch Manager Jesus Lopez was responsible for hiring. ECF No. 73 at 5. Although Lopez initially intended to interview all thirteen applicants, Stevens instructed Lopez to interview only five candidates. ECF No. 75 at 5. In approximately January 2017, he asked his supervisor Fisher for advice about narrowing the applicants to a group of five interviewees. ECF No. 73 at 5. Fisher advised against interviewing Black based on Fisher's opinion that Black interviewed poorly for the supervising foreman position, and Fisher conveyed his belief that Black recently had been disciplined. Id. at 5-6. Lopez further submitted that he personally had interacted with Black sometime between June 2015 and December 2016 and had rejected a proposal by Black to perform work on an energized transmission line. ECF No. 75 at 6. Lopez recalled that Black had responded in “an angry tone.” Id. at 6. That interaction convinced Lopez that Black did not have the appropriate temperament for the Distribution Dispatcher position. Id.

         Black was not interviewed and was not offered the position of Distribution Dispatcher. ECF No. 95-2 at 14. Black denies that he asked to work on an energized transmission line or ever previously interacted with Lopez. Id. Black also contends that he was qualified for the Distribution Dispatch position and had trained one of the candidates, Dustin Kagele, who was in his early thirties and was ultimately selected for one of the two open positions. Id.

         Supervising Foreman Hiring in 2018

         The PUD filled another supervising foreman position, this time at the Ephrata Service Center, in January 2018. ECF No. 70 at 3. One of the union representatives, Tony Alberti, and one of the PUD managers, Heimbigner, on the hiring committee also had participated in the fall 2016 hiring committee in which Black was not selected for the other supervising foreman position. Id. at 1-3. Alberti recounted that the committee was unanimous that Scott Elliott was the best candidate, that Alberti has long known that Elliott is a member of ...


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