United States District Court, E.D. Washington
WAYNE R. BLACK, Plaintiff,
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
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
otherwise indicated, the following facts are undisputed.
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.
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.
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
as early as 2014,  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.
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.
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.
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 and Heimbigner instructed
Black to move the tags. ECF Nos. 74 at 5; 83-1 at 413; 110-2
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Foreman Hiring in 2018
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 ...