United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE
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.
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.
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.
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rescinded the prior PIP and issued a new one.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.
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.
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.
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.
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).
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).
Plaintiff's Discrimination ...