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Riser v. Washington State University

United States District Court, E.D. Washington

August 29, 2019

DARRYL W. RISER, Plaintiff,



         BEFORE THE COURT is Defendants Washington State University, Don Holbrook, Brian Dixon, and Randi Croyle's (Final) Motion for Summary Judgment (ECF No. 118). The Motion was submitted for consideration without a request for oral argument. Riser opposes the Motion. ECF No. 121. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, the Defendants' (Final) Motion for Summary Judgment (ECF No. 118) is granted.


         A movant is entitled to summary judgment if the movant demonstrates “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the “burden of establishing the nonexistence of a ‘genuine issue.'” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party.” Id.

         In deciding, the court may only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). As such, the nonmoving party may not defeat a properly supported motion with mere allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. At this stage, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor.” Id. at 255. However, the “mere existence of a scintilla of evidence” will not defeat summary judgment. Id. at 252.

         Per Rule 56(c), the parties must support assertions by: “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” The court is not obligated “to scour the record in search of a genuine issue of triable fact[;]” rather, the nonmoving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (brackets in original) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)).

         Summary judgment will thus be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.


         Plaintiff Darryl Riser brought this instant action against Defendants Washington State University, Don Holbrook, Brian Dixon, Randi Croyle, Kirk Schulz, Holly Ashkannejhad, and Teddi Phares on April 5, 2018. ECF No. 1 at 1-2. The same day, Riser submitted an application to proceed In Forma Pauperis. ECF No. 2. On April 9, 2018, Riser was allowed to proceed in forma pauperis, at a reduced fee not a complete waiver.[1] ECF No. 9. Given the partial filing fee, the Court was obligated to screen Riser's Complaint to determine whether Riser's allegations stated a plausible claim of relief. The Court found Riser stated a plausible claim for relief against Defendants WSU, Holbrook, Dixon, and Croyle based on Riser's allegations that they retaliated against him for exposing alleged racial discrimination in the financial aid department. ECF No. 16 at 3. The Court determined Riser did not state a claim against Defendants Schulz, Ashkannejhad, and Phares, finding, inter alia, that Washington Administrative Code § 504-04-020 and Wash. Rev. Code § 34.05.240 do not provide a basis for personal liability, ECF No. 16 at 4.

         Riser filed his First Amended Complaint on April 26, 2018. The same day, Riser submitted a Motion for Temporary Restraining Order (ECF No. 19) and a Motion to Voluntarily Dismiss (ECF No. 20) Schulz, Ashkannejhad, and Phares ECF No. 20. The Court granted the Motion to Dismiss. However, the Court denied the Motion for Temporary Restraining Order because Riser did not demonstrate a likelihood of success, inter alia. ECF No. 23. The Court observed:

Although Plaintiff was assigned whistleblower status, Plaintiff has not submitted any evidence supporting his assertion that he was wrongly terminated for his whistleblower activities, which appears to be limited to criticisms of supervisors and other employees. Rather, the evidence submitted so far appears to support WSU's decision to terminate Plaintiff for cause and that Plaintiff was accorded adequate notice and an opportunity to respond despite Plaintiff's status as an at-will employee, bearing in mind that “discharge of a public employee whose position is terminable at the will of the employer” generally does not implicate the due process clause because the employee has no property interest in the position. Bishop v. Wood, 426 U.S. 341, 348 (1976); Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 331 (9th Cir. 1995).

ECF No. 23 at 3-5 (citations omitted). Riser submitted a Motion for Reconsideration (ECF No. 25), which the Court denied (ECF No. 27).

         On May 23, 2018, Riser submitted three Motions for (Partial) Summary Judgment (ECF Nos. 31; 32; 33). On June 27, 2018, Defendants cross-moved for summary judgment in their Replies (ECF Nos. 50; 51; 52). On July 16, the Court provided notice to Riser that Defendants cross-moved for summary judgment and gave Riser additional time to respond. ECF No. 64. Riser provided his Response. On October 12, 2018, the Court held in favor of Defendants on the cross-motions for summary judgment, finding: (1) WSU is not subject to suit under 42 U.S.C. § 1983; (2) under Eleventh Amendment immunity, the individual Defendants cannot be liable for damages in their official capacity; (3) Holbrook did not owe a fiduciary duty to Riser; (4) Holbrook did not commit fraud; (5) Riser's claims of Intentional Infliction of Emotional Distress against Holbrook and Croyle fail as a matter of law; and (6) Riser's claim of defamation against Holbrook and Croyle fails. ECF No. 86.

         Meanwhile, on June 6, 2018, Riser submitted a Motion to Recuse (ECF No. 43), asserting that the presiding judge is biased for a litany of reasons. The Court addressed Riser's complaints, found they “stem from patent misunderstandings and the Court's objective assessment of Plaintiff's motions”, and denied the Motion. ECF No. 60 at 6-15. Riser submitted another Motion to Recuse (ECF No. 69) on July 25, 2018. On August 9, 2018, the Court denied the Motion, noting that Riser's “requests are premised on unfounded claims of bias and retaliation . . . .” ECF No. 76 at 8-9.[2]

         On August 17, 2018, Riser submitted his Second Amended Complaint (ECF No. 77) and submitted another Motion for Preliminary Injunction (ECF No. 78). On October 15, 2018, the Court, again, found Riser did not establish a likelihood of success on the merits and denied the Motion, noting that the grant of Washington State unemployment benefits does not demonstrate he was unlawfully terminated. ECF No. 87 at 3-4.

         On December 11, 2018, Riser submitted his Third Amended Complaint. ECF No. 94. Defendants requested the Court strike certain claims that were previously dismissed on summary judgment. ECF No. 105. The Court granted the request, striking the offending claims (claims 15, 16, 22, 26, and 29). ECF No. 115 at 4-6.

         Defendants now move for summary judgment on the remaining claims. ECF No. 118.


         Upon review of the evidence - construing all genuine disputes (supported by evidence) in favor of Riser as the non-moving party - the Court finds the evidence demonstrates the following.

         In January 2017, Plaintiff was hired as the Training Coordinator at the WSU Student Financial Services Department. ECF No. 94-1 at 2, ¶ 7. Early on, Riser began raising relatively mundane workplace complaints and, in April of 2017, he filed a complaint (Case Number 2017-193) with the WSU Office of Equal Opportunity (“OEO”). See ECF No. 18-1 at 16-22 (complaints about temperature of the office; colleagues watching videos and listening to music, coughing, sneezing, passing gas, and using air fresheners; his computer shutting down because of an overloaded circuit; complaints that Gloria Barker said “you punk” and “get off my chair”, would hit him and say “wake-up”, and complained that he talked too long, etc.); at 24-27 (“Follow-up Complaint” with similar concerns).

         In an affidavit, Riser asserted that he reported incidents of unlawful harassment and unlawful discrimination under Title VII of the Civil Rights Act in April of 2017. ECF No. 18-1 at 4, ¶ 8. However, the attachments he cites to do not support this contention. See ECF No. 18-1 at 16-34. Indeed, after an initial review of Plaintiff's complaint, the OEO closed the file because Plaintiff “did not have reason to believe conduct was discriminatory” and that his complaints did not implicate “Executive Policy 15” (the policy prohibiting “Discrimination, Sexual Harassment, and Sexual Misconduct”). ECF No. 18-1 at 29-32.

         On September 19, 2017, Riser submitted a SWOT (Strength, Weakness, Opportunities, and Threats) Analysis (ECF No. 18-27) to Brian Dixon, Vice President of Student Financial Services, after Dixon “called an emergency meeting to solicit ideas to address the high turnover and the Department's ineffectiveness.” ECF No. 18-1 at 4-5, ¶ 10. In the “Weaknesses” section of the SWOT Analysis, Riser identifies office culture based on managers' conduct as a weakness that negatively impacts the office operation, complaining of (1) perceived inequal treatment of “privileged” and “non-privileged” employees concerning mundane workplace issues (noises; smells; peer review of e-mails); (2) perceived lack of support of employee rights (right to work poster placement, allowing cooking at workstations, and taking no action “on extremely distracting sounds and smells”); (3) inappropriate conversations with students (“about getting drunk and other inappropriate dialogue” and profanity); (4) inconsistent protocol (cooking appliances); (5) lack of respect and consideration for employees (not courteous- not saying please, thank you, etc.; allowing students to manage and train employees and assign work to Riser); and (6) bullying (“[s]ystematically excluding and isolating” Riser; colleagues refusing to meet timelines; managers yelling at Riser to get his attention). ECF No. 18-27 at 4-8.

         According to Riser, “immediately, [he] felt the work environment transition from good to bad for [him], which [he] reported to [the WSU] Human Resource Services (“HRS”) and [OEO].” ECF No. 18-1 at 5, ¶ 11. In support, Riser only cites to “Attachment E”: the “Proposal to Restructure the SFS Department” dated October 19, 2017 (which includes an overview of the SWOT analysis). ECF No. 17-1 at 44-45. ECF No. 18-1 at 36-53.

         Apparently, Myla Walter, Assistant Director of Operations, and Dixon had a meeting with Riser on September 28, 2017 to discuss his SWOT Analysis. See ECF No. 18-28 at 2. In a letter to Riser, Walter (1) thanked Riser for meeting with her and Dixon and (2) summarized some of the items they discussed in the meeting, including the need to “openly and accurately communicate when conflict or office violations may occur and regularly communicate when challenges arise while providing others with the benefit of the doubt” and to be “considerate of [his] fellow team members through open communication channels, limiting assumptions, and mindful interpretations.” ECF No. 18-28 at 2.

         On October 4, 2017, Riser sent an e-mail to Walter responding to the above letter. ECF No. 18-29. Riser states: “After receiving your erroneous Report, I felt compelled to respond; to address the errors, omissions, comments, and to express my disagreement with your justifications[, ]” stating that he felt the “discussion” was more of an “interrogation”. ECF No. 18-29 at 2 (emphasis in original). He writes: “I disagree with most of your Report”, complaining that (1) he felt “blind-sided” because he was not prepared to discuss the SWOT Analysis, (2) not all issues were addressed, (3) he felt his observations were invalidated and discredited, and (4) past complaints had been negligently handled, inter alia. ECF No. 18-29 at 2-4. Riser then directs his attention to kitchen appliances: “I believe special consideration should be given to prohibit ALL kitchen appliances.” ECF No. 18-29 at 4 (emphasis in original). Riser complains about being prohibited from using his rice cooker to warm his food even though a colleague continued to use a coffee maker in his workstation after Riser complained about the “offensive smell of coffee (non-gourmet coffee).” ECF No. 18-29 at 5 (emphasis in original). Riser concludes by asking whether the rice cooker ban was a result of retaliation, whether it was the logical choice to implement such a ban, what the policy is for boiling water for tea with a rice cooker in the workstation, and whether coffee makers and refrigerators were “permitted because certain privileged individuals possess these appliances?” ECF No. 18-29 at 5.

         On October 19, 2017, Riser submitted an eighteen-page “Proposal to Restructure the Student Financial Services Department” to Eric Godfrey (Executive Director), Kirk Schulz (WSU President), Daniel Bernardo (Provost and Executive Vice President) and Mary Gonzales (Vice President for Student Affair and Dean of Students. ECF No. 119 at 2-3, ¶ 6.

         Riser continued to raise workplace issues to the OEO and others throughout October and November of 2017. See ECF Nos. 18-31 at 5-6 (“Workplace Concern Resolution Form” dated October 27, 2017 raising issue of rice cooker); 18-1 at 55 (“Whistleblower Complaint” sent via e-mail to Schulz and Heather Lopez on November 1, 2017); 18-31 at 7-8 (“Workplace Bullying Incident Report” dated November 16, 2017 complaining about being treated “like a work-study student”, “unreasonable timelines” and expectations “without providing adequate training and instructions”, and employees not being polite or cordial.”); 18-1 at 59 (Agreement to Mediate signed on November 20, 2017); 18-4 (Ethics Board e-mail dated November 27, 2017 to Riser regarding alleged violations of the Washington Ethics in Public Service Act).

         Notably, Riser submitted to the Court an OEO document dated November 8, 2017, reflecting the OEO's decision to close claim number 2017-412 because Riser did not provide investigators with any information that would implicate EP 15, despite his claim of gender discrimination. ECF No. 18-1 at 57. However, Riser has not provided the Court with the underlying complaint.

         Riser asserts that, on November 8, 2017, he “filed a RACE and GENDER Discrimination Charge” with the Washington State Human Rights Commission (“WSHRC”) ECF No. 94 at 2. However, Riser has not provided the actual complaint. Rather, the only documents in the record related to the WSHRC appears to be limited to (1) a Notice of Charge of Discrimination (without any information regarding the factual basis thereof) dated November 30, 2017, ECF No. 18-32 at 2, and (2) documents demonstrating that a complaint (filed on March 17, ...

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