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Lassair v. Wilkie

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

October 16, 2019

EDNA LASSAIR, Plaintiff,



         The Honorable Richard A. Jones This matter comes before the Court on Defendant's Motion for Summary Judgment (Dkt. # 30). Having considered the submissions of the parties, the relevant portions of the record, and the applicable law, the Court finds that oral argument is unnecessary. For the reasons stated below, Defendant's Motion is GRANTED. Dkt. # 30.

         I. BACKGROUND

         Plaintiff Edna Lassair (“Plaintiff” or “Ms. Lassair”) is a former employee of the VA who began working in 2008 as a Rating Veterans Service Representative (“RSVR”). Dkt. # 12 at p. 2, ¶ 3. Her position entailed reviewing veterans' medical and military records to make service connected disability decisions. Id. All raters are required to meet quantity and quality standards. Dkt. # 32 at ¶ 3. Raters are required to review a certain number of cases each day and their work is reviewed by a Decision Review Officer (“DRO”) to determine if the ratings contain errors. Id. at ¶¶ 4-5. Quantity and quality standards are based on an employee's general schedule (“GS”) grade level, so raters in a higher grade are typically required to meet higher quality and production standards. Id.

         In 2009, Plaintiff's work coach issued her a written counseling due to unacceptable performance. Dkt. # 1-2 at ¶ 6. Plaintiff alleges this is because her DRO at the time, John Dick, was taking a long time to review her cases and that he was discriminating against her based on her age. Dkt. # 31-1, Ex. A at p. 25:16-25. After Plaintiff complained that Mr. Dick was taking too long to review her work, her cases were redistributed to other reviewers in October 2009. Dkt. # 31-1, Ex. A at p. 23:9-12. For the remainder of October 2009, Plaintiff corrected the errors that the new reviewers identified in her work. Id. at p. 22:8-11.

         Plaintiff's performance issues continued into 2010 and 2011 as documented by the Performance Improvement Plan (“PIP”) she was placed on in April 2010, that was continued in January 2011. Dkt. # 33 at ¶ 4; Dkt. # 34 at ¶ 22. Plaintiff also began working from home in 2011 and claims that she had problems with her work disappearing from the system. Dkt. # 31-1, Ex. A at p. 58:2-20. In May 2011, the VA issued Plaintiff a “Warning of Unacceptable Performance-Performance Improvement Plan, ” which rescinded the prior PIP and issued a new one. Dkt. # 32 at ¶ 9. After receiving the new PIP, Plaintiff contacted the EEOC in June 2011, alleging that the issuance of the PIP created a hostile work environment based on her race, age, and disability. Dkt. # 12-1. As a remedy, she sought to have the agency remove her from the PIP. Id.

         In August 2011, the parties participated in a mediation and reached a settlement agreement. Dkt. # 12 at p. 2, ¶ 5. Plaintiff signed the agreement, and so did both her Representative and Chief Union Steward. Dkt. # 12-2. The settlement agreement stated that in exchange for certain undertakings by the VA, Plaintiff would “waive, ” among other rights, “all other civil or administrative proceedings of the Complaint or issues related to it in whatever forum, ” and also “release VA and all of its officers, agents, and employees from all claims that she has or may have against them arising out of the events and circumstances related to the Complaint.” Id.

         In March 2012, Plaintiff filed a notice alleging breach of the settlement agreement. Dkt. # 12 at p. 3, ¶ 7. The Office of Resolution Management (“ORM”) determined that agency did not breach the settlement agreement. Dkt. # 14 at pp. 16-17, ¶¶ 5-6. However, the ORM held that the settlement agreement was not enforceable because it did not contain a waiver under the Older Workers Benefit Protection Act (“OWBPA”). Id. at p. 18, ¶ 9. The decision was ultimately appealed to the EEOC which held that the failure to include an OWBPA waiver voided only Plaintiff's settlement of her claim under the ADEA but did not void the settlement agreement as to her other discrimination claims. Dkt. # 12-4. Plaintiff voluntarily resigned her position with the VA effective January 31, 2014. Dkt. # 12 at p. 3, ¶ 10. She has not worked for the VA since her resignation. Id.

         In July 2018, Plaintiff filed a lawsuit in state court asserting claims of discrimination based on race, disability, and age. Dkt. #3-1. Defendant removed the case to this Court. Dkt. #1. On March 23, 2018, Defendant filed a Motion for Summary Judgment. Dkt. # 14. The Court granted summary judgment, finding that Plaintiff's claims were barred by the settlement agreement, with the exception of Plaintiff's allegations related to age discrimination. Dkt. # 17. The Court gave Plaintiff leave to file an amended complaint asserting an age discrimination claim. Id. On August 31, 2018, Plaintiff filed an Amended Complaint asserting age discrimination under the Age Discrimination in Employment Act (“ADEA”). Dkt. # 18. Defendant now moves for summary judgment as to Plaintiff's remaining claim. Dkt. # 30.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).

         However, the court need not, and will not, “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also White v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not “speculate on which portion of the record the nonmoving party relies, nor is it obliged to wade through and search the entire record for some specific facts that might support the nonmoving party's claim”). The opposing party must present significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Uncorroborated allegations and “self-serving testimony” will not create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); T.W. Elec. Serv. v. Pac Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).


         A. Plaintiff's Discrimination ...

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