YASSER EMAD, Plaintiff, v. THE BOEING COMPANY, Defendant.
CASE NO. C14-1233 MJP
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
August 11, 2015
Marsha J. Pechman
THIS MATTER comes before the Court on Defendant‘s Motion for Summary Judgment. (Dkt. No. 28.) Having considered the Parties’ briefing and all related papers, the Court GRANTS in part and DENIES in part the motion.
Background
Plaintiff Yasser Emad brings suit against his employer, the Boeing Company, for employment discrimination on the basis of race, national origin, and religion in violation of
Defendant now moves for summary judgment on all of Plaintiff‘s claims. (Dkt. No. 28.)
I. Legal Standards
A. Summary Judgment
Summary judgment is proper where “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
B. Title VII
Absent direct evidence of discriminatory animus, claims of employment discrimination are typically analyzed under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Plaintiff bears the initial burden of establishing a prima facie case of discrimination. Once established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the employee. Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002). The burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiff‘s rejection. Id. If the employer sustains the burden, the plaintiff must then demonstrate that the proffered nondiscriminatory reason is merely a
C. Section 1981, Washington Law Against Discrimination
To overcome summary judgment under the Washington Law Against Discrimination (“WLAD“), a plaintiff only needs to show that a reasonable jury could find that Plaintiff‘s protected trait was a substantial factor motivating the employer‘s adverse actions. Scrivener v. Clark Coll., 181 Wn.2d 439, 445 (2014). This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence. Id. Where a plaintiff lacks direct evidence, Washington courts use the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine the proper order and nature of proof for summary judgment. Id.
The “legal principles guiding a court in a Title VII dispute apply with equal force in a
II. Disparate Treatment
“In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant‘s decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas.” Dominguez-Curry v. Nevada Transp. Dep‘t, 424 F.3d 1027, 1037 (9th Cir. 2005) (citation omitted). Direct evidence is evidence which, if believed, proves the fact of discriminatory
Defendant argues Plaintiff‘s disparate treatment discrimination claim fails because (1) Plaintiff did not suffer an adverse employment action because the denial of a temporary management position cannot be considered an adverse employment action, and, (2) the denial of the temporary management position was based on senior management‘s “concern about process issues” regarding filing the position, and “not about [Plaintiff].” (Dkt. No. 28 at 13-14.) Plaintiff argues the denial of the temporary management position was an adverse employment action that affected his wages, hours, and chances for promotion, and the denial was based on Plaintiff‘s manager regarding him as an “Ali-Baba terrorist.” (Dkt. No. 34 at 15-17.)
Adverse employment actions include an array of disadvantageous changes in the workplace that materially affect the terms and conditions of a person‘s employment. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Adverse employment actions are not limited to cognizable employment actions such as discharge, transfer, or demotion. See Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002). Some actions having been found to constitute adverse employment actions include: issuing undeserved performance ratings, negatively affecting an employee‘s compensation, giving an employee a more burdensome work schedule, and excluding an employee from meetings, seminars and positions that would have made the employee eligible for salary increases. See Delacruz v. Tripler Army Med., 507 F. Supp. 2d 1117, 1123-24 (D. Haw. 2007) (collecting cases); Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).
Here, Plaintiff alleges he was denied a temporary management position in August 2012 because of his race, religion, and national origin. (Dkt. No. 34.) Plaintiff alleges that Mr. Hall, a manager with control over a temporary promotion to a team lead position, denied Plaintiff the opportunity, despite the fact he had begun training for the position, while commenting to a coworker, “I‘m not going to let that Ali-Baba terrorist be a team lead.” (Id. at 15.) Plaintiff contends the denial cost him a two dollar per hour raise for the hours worked as a lead, two hours of overtime pay for each day worked as a lead, and leadership experience that would have made him more competitive for future discretionary promotions. (Dkt. Nos. 34 at 16-17, 35 at 4.)
In support of his position, Plaintiff has produced a Statement Form provided to Boeing‘s Equal Employment Opportunity Office by Team Lead Mike Baker, in which Baker reports he overheard Hall say “I‘m not going to have Ali Baba Terrorist be a Team Lead” in reference to Plaintiff‘s candidacy for the temporary promotion. (Dkt. No. 36-2 at 45.) Plaintiff has also put forward evidence that although certain managers claim he was denied the opportunity based on “process issues,” other employees had been trained for and had acted as temporary leads without facing the same “process” he did. (Dkt. No. 36-2 at 43.)
The Court finds Plaintiff has produced evidence sufficient to preclude summary judgment on this claim. A reasonable jury could conclude, based on the evidence submitted, that the denial of the temporary management position was an adverse employment action, which affected Plaintiff‘s compensation, hours, and opportunity for advancement, and that the adverse action was based on a supervisor‘s discriminatory animus towards Arabs and Muslims. Defendant argues this denial was not a significant employment action because the monetary loss was only
III. Hostile Work Environment
To establish a prima facie case for a hostile work environment claim under
Under Washington law, a prima facie case requires that: (1) Plaintiff suffered unwelcome harassment; (2) the harassment was because of race, national origin, or religion; (3) the harassment affected the terms or conditions of employment; and (4) the harassment can be imputed to the employer. Washington v. Boeing, 105 Wn. App. 1, 12-13 (2000).
Defendant argues Plaintiff‘s hostile work environment claim fails because (1) Boeing maintains an anti-harassment policy that is a reasonable mechanism for harassment prevention and correction, and Plaintiff knew about the policy but unreasonably declined to report the
A. Severity and Pervasiveness of Supervisor Harassment
The Court finds Plaintiff has produced evidence sufficient to preclude summary judgment on this basis. A reasonable jury could conclude, based on the evidence submitted, that harassment by managers and supervisors was severe and pervasive enough to alter the conditions of employment and create a subjectively and objectively abusive work environment.
Plaintiff has submitted evidence that Mr. Hall, who had control over Plaintiff‘s wages, hours, and working conditions, removed Plaintiff from training to become a temporary lead, telling another colleague he made the decision because he would not allow an “Ali-Baba terrorist” to serve as a team lead. (Dkt. Nos. 35, 36-2 at 45.) Plaintiff has submitted evidence that a coworker, pointing to Plaintiff, commented to Mr. Hall that Boeing does not just build the best airplanes, “they also come with a terrorist.” (Dkt. No. 35 at 9.) Mr. Hall laughed at the comment, and walked away. (Id.)
Plaintiff has submitted evidence that Mr. Fink, another manager with control over Plaintiff‘s wages, hours, and working conditions, played a video clip at the end of a crew meeting, telling his crew to pay special attention to a very funny clip which featured a young
Plaintiff has submitted evidence that Mr. McNeil, a supervisor, began calling Plaintiff “camel jockey” after Plaintiff complained to McNeil about other coworkers referring to him as “Achmed.” (Dkt. No. 35 at 10.) Plaintiff has submitted evidence that Mr. McNeil called Plaintiff a “terrorist” and “Taliban,” and was often present when other coworkers used similar language to refer to Plaintiff. (Id. at 2.) Plaintiff has submitted evidence that Mr. Turner, another supervisor, regularly used racist language to refer to Plaintiff, and made a derogatory remark about a t-shirt depicting a man in three Muslim prayer stances. (Id. at 11.)
Courts have recognized “Title VII is not a general civility code.” E.E.O.C. v. Prospect Airport Services, Inc., 621 F.3d 991, 998 (9th Cir. 2010). Nevertheless, Plaintiff has put forward sufficient evidence of frequent, consistent harassment by numerous people in leadership positions so as to create a genuine issue of material fact. Summary judgment on this basis is DENIED.
i. Supervisor Harassment and Affirmative Defense
Under Washington law, where an owner, manager, partner or corporate officer personally participates in the harassment, the harassment is imputed to the employer. Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 407 (1985). Managers are those who have been given by the employer the authority and power to affect the hours, wages, and working conditions of the employer‘s workers. Robel v. Roundup Corp., 148 Wn.2d 35, 48 n.5 (2002).
The Court finds that a genuine issue of material fact regarding whether a “manager” participated in harassment precludes summary judgment under Washington law because a reasonable fact finder could conclude that Mr. Hall and Mr. Fink had control over Plaintiff‘s wages, hours, and working conditions, and thus that their harassment is imputable to Boeing. See Glasgow, 103 Wn.2d at 407.
Under Title VII and
If no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take
The Court finds that a genuine issue of material fact precludes summary judgment under federal law because a reasonable fact finder could conclude that Mr. Hall was a “supervisor,” that denying Plaintiff the temporary team lead position was a failure to promote that constituted a “tangible employment action,” and, therefore, that Boeing is strictly liable. Summary judgment on this basis is DENIED.
ii. Coworker Harassment
Under Washington law, harassment by coworkers and supervisors is imputed to the employer only where the employer (1) authorized, knew about, or should have known about the harassment, and (2) failed to take reasonably prompt and adequate corrective action. Glasgow, 103 Wn.2d at 407. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel, or by proving such a pervasiveness of harassment at the work place as to create an inference of the employer‘s knowledge or constructive knowledge of it, and (b) that the employer‘s remedial action was not of such nature as to have been reasonably calculated to end the harassment. Id.
Under Title VII and
When the employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment. Id. at 875-76.
Here, Plaintiff has introduced evidence that coworkers harassed Plaintiff in front of several different managers beginning shortly after he began his employment in January 2012, but that the managers took no steps to correct or prevent the harassment. (Dkt. No. 35.) Plaintiff has introduced evidence that despite being told that complaining to human resources about another union member would “make him a target,” Plaintiff eventually did report the harassment to human resources in August 2012 and to Boeing‘s Equal Employment Office in December. (Id. at 2, 5-10.) Plaintiff has introduced evidence that the harassment continued, and even worsened, during Boeing‘s internal investigation, which concluded in March 2013. (Id. at 2-10.) Plaintiff has submitted evidence that the harassment continued after that, resulting in Plaintiff filing a charge with the Equal Employment Opportunity Commission (“EEOC“) in September 2013. (Id. at 9.) Plaintiff has submitted evidence that the harassment continues to this day, despite Plaintiff‘s January 2014 transfer to Boeing‘s Renton facility. (Id. at 9-11.) Plaintiff has submitted sufficient evidence for a reasonable fact finder to conclude Boeing knew or should have known about the harassment.
Plaintiff has also submitted sufficient evidence for a reasonable fact finder to conclude Boeing did not take steps reasonably calculated to end the harassment. Plaintiff has submitted
Defendant argues that it is “undisputed that Boeing immediately and thoroughly investigated Emad‘s workplace harassment complaints,” and that “after Boeing granted Emad‘s request to be transferred to a new, higher level assignment in Boeing‘s Renton facility, Emad was never again subjected to workplace harassment.” (Dkt. No. 28 at 17.) Defendant argues that it took sufficient corrective action against those employees who it did find had engaged in inappropriate conduct by issuing corrective action memoranda to those employees. (Id.) With regards to Plaintiff‘s harassment contentions at the Renton facility, Defendant argues that “no reasonable jury could find Emad‘s assertions to be credible.” (Dkt. No. 38 at 4.) Once again, Defendant advances arguments that rely on its interpretation of disputed facts, and asks the Court
IV. Retaliation
To establish a prima facie case of retaliation under both federal and Washington law, Plaintiff must show: (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between his activity and the employment decision. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003).
Defendant argues Plaintiff‘s retaliation claim fails because Plaintiff did not suffer an adverse employment action because any retaliatory harassment by coworkers amounted to nothing more than mere ostracism and thus was not an adverse employment action. (Dkt. No. 28 at 14-16.) Plaintiff argues he suffered a retaliatory adverse action in the form of increased harassment from coworkers, including coworkers and managers falsely accusing Plaintiff of proactively initiating the harassment in order to later entrap them by filing discrimination complaints against them. (Dkt. No. 34 at 24-25.)
Title VII‘s “antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006). To demonstrate that he suffered an adverse employment action under the antiretaliation provision, Plaintiff “must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citation omitted). The action must be materially adverse because an employee‘s “decision to report discriminatory behavior cannot
A hostile work environment may form the basis for a retaliation claim under Title VII. Ray, 217 F.3d at 1244-45. “Harassment for engaging in a protected activity . . . is the paradigm of adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” Id. at 1245 (internal quotation marks and citation omitted).
The Court—having found that Plaintiff has produced enough evidence for a reasonable jury to conclude Plaintiff was subjected to, and continues to be subject to, sufficiently severe and pervasive harassment so as to alter the conditions of employment and create an abusive work environment—finds that summary judgment on the retaliation claim is precluded. Plaintiff has established a genuine issue of material fact as to whether he suffered an adverse employment action in the form of a hostile work environment. Summary judgment on the retaliation claim is DENIED.
V. Intentional and Negligent Infliction of Emotional Distress
Washington does not recognize claims for intentional or negligent infliction of emotional distress by an employee against his or her employer “when the only factual basis for emotional distress [is] the discrimination claim.” Little v. Windermere Relocation, Inc., 301 F.3d 958, 972 (9th Cir. 2002) (citations omitted); Anaya v. Graham, 89 Wn. App. 588, 596 (1998). Citing Plaintiff‘s testimony regarding the source of his stress during his deposition, Defendant argues that Plaintiff‘s emotional distress claims are based solely on the allegedly discriminatory events that form the basis for Plaintiff‘s other claims. (Dkt. Nos. 28 at 20-22, 38 at 10-11.) Plaintiff does not address these claims in his Response. (Dkt. No. 34.)
Conclusion
The Court GRANTS in part and DENIES in part the motion. Genuine issues of material fact preclude summary judgment on Plaintiff‘s discrimination the basis of race, national origin, and religion claims. Because the factual basis for these claims is identical to the factual basis for Plaintiff‘s intentional and negligent infliction of emotional distress claims, however, summary judgment on the emotional distress claims is GRANTED.
The clerk is ordered to provide copies of this order to all counsel.
Dated this 11th day of August, 2015.
Marsha J. Pechman
Chief United States District Judge