Johnson v. Albertsons LLC

1 The Honorable Richard A. Jones

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE KIMBERLY ANN JOHNSON, No. 2:18-01678-RAJ 9 Plaintiff, ORDER ON PARTIES’ 10 v. MOTIONS FOR SUMMARY JUDGMENT ALBERTSONS LLC, 12 Defendant.

14 This matter comes before the Court on Plaintiff’s motion for partial summary judgment (Dkt. # 26), Defendant’s cross-motion for summary judgment (Dkt. # 36), and Defendant’s motion for summary judgment (Dkt. # 29). 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 for summary judgment is DENIED. Dkt. # 29. Plaintiff’s motion for partial summary judgment is GRANTED in part and DENIED in part. Dkt. # 26.

21 Defendant’s cross-motion for summary judgment is DENIED. Dkt. # 36.1 Defendant also filed a motion to disqualify court reporter Lauren G. Harty. Dkt. # 16.

24 Specifically, Defendant requested that Ms. Harty be precluded from acting as a court reporter in any further proceedings. Id. After reviewing the briefings, the Court is deeply discouraged by the breakdown in civility between the parties. The fact that this dispute could not be resolved without this Court’s intervention is baffling. Regardless, because discovery in this matter is now closed, Defendant’s motion is DENIED as moot.

1 I. BACKGROUND 2 Plaintiff Kimberly Johnson (“Johnson” or “Plaintiff”) was hired by Albertsons in 1983. Dkt. # 30-1, Ex. A. Over time, Plaintiff rose to the position of District Manager, first in the Intermountain West Division and later in the Northwest Division. Dkt. # 41 at ¶¶ 5, 12. In 2013, Plaintiff assumed the district manager position of District 24, in the Seattle Area. Id. at ¶ 14.

7 In February 2016, Mr. Robert Backus assumed the role of Senior Vice President of the Seattle Division. Dkt. # 33 at ¶ 3. According to Plaintiff, Mr. Backus began “systematically eliminating women” from top management positions in the Seattle Division. Dkt. # 41 at ¶ 25. In early 2017, Plaintiff claims that she began to have conversations with Trevor Ennis, Seattle Division Human Resources Director, about the “bad treatment of female managers” by Seattle division leadership. Dkt. # 40-1, Ex. 1 at 158:13-24. Plaintiff also emailed Albertsons CEO, Bob Miller, with her concerns.

14 After Plaintiff began raising concerns about gender discrimination, she alleges that Mr. Backus “hyper-inflated” the sales projections for her district, giving the appearance that she was under-performing. Dkt. # 41-1, Ex. 6 at ¶ 12. In October 2017, Plaintiff was placed on a performance improvement plan (“PIP”) because of issues related to store conditions, leadership, and customer service. Dkt. # 31-2, Ex. G.

19 Plaintiff alleges that the real reason for the PIP was retaliation for her complaints about gender discrimination. In April 2018, Plaintiff was terminated because of her alleged failure to improve consistently, as required under the PIP. Dkt. # 30, Ex. A at 303:1-24, Ex. 19; Ex. B at 314:19–315:2. According to Plaintiff, her performance did in fact improve, but she was still terminated. Dkt. # 38 at 15.

24 Plaintiff now sues Albertsons alleging discrimination and retaliation under Title VII and the Washington Law Against Discrimination (“WLAD”), RCW 49.60. Dkt. # 1-1. Defendant moves for summary judgment as to all of Plaintiff’s claims. Dkt. # 29.

27 Plaintiff moves for partial summary judgment as to Defendant’s affirmative defenses (Dkt. # 26) and Defendant cross-moves for summary judgment as to the after-acquired evidence defense (Dkt. # 36).

3 II. LEGAL STANDARD 4 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).

8 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.

10 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).

19 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).

3 III. DISCUSSION 4 A. Defendant’s Motion for Summary Judgment 5 Defendant moves for summary judgment as to Plaintiff’s claims of gender discrimination and retaliation under Title VII and the WLAD. Dkt. # 29.2 7 i. Gender Discrimination 8 A plaintiff can show discrimination by presenting either direct evidence or indirect evidence. Enlow v. Salem–Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004); Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty., 189 Wash. 2d 516, 526 (2017). In cases like this one where there is no direct evidence of discrimination, Plaintiff may prove discrimination using indirect, or circumstantial evidence, under the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Salas v. Indep. Elec. Contractors Inc., No. 11-1748 RAJ, 2013 15 WL 1898249, at *5 (W.D. Wash. May 7, 2013), aff’d, 603 F. App’x 607 (9th Cir. 2015) (applying McDonnell Douglas test to ADEA claim on summary judgment). The McDonnel Douglas framework has been adopted by the Washington Supreme Court when reviewing WLAD claims. Mikkelsen, at 526. However, for WLAD claims, employees may also satisfy the pretext prong of the McDonnell Douglas framework by offering evidence that discrimination was a “substantial factor” in the employer’s decision to take adverse employment action. Scrivener v. Clark Coll., 181 Wash. 2d 22 439, 441 (2014).

2 Defendant also moves to strike several declarations it contends contain inadmissible evidence. Dkt. # 44. In reviewing the evidence, the Court focused on the admissibility of the evidence’s content, not on the admissibility of the evidence’s form. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). Where the evidence is substantively inadmissible, the Court has not considered it for the purposes of these motions.

1 Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, at 802. If she succeeds in making out a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, at 802. It is then the plaintiff’s responsibility to establish that the defendant’s stated reason was merely pretext and that the true reason was discriminatory. Id. 7 To establish a prima facie case of gender discrimination, Plaintiff must show that: (1) she was within a statutorily protected class, (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) her employer treated her differently than a similarly-situated employee outside of her protected class.

11 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden on Plaintiff in establishing a prima facie case is “not onerous” and requires only that she establish facts adequate to permit an inference of discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).

15 Ms. Johnson is a woman, and therefore a member of a protected class.

16 Defendant does not dispute that Ms. Johnson was terminated and thus suffered an adverse employment action. The parties do dispute the quality of Plaintiff’s job performance. Plaintiff offers evidence that her performance was satisfactory until 2016.

19 See Dkt. # 41 at ¶¶ 6-7; Dkt. # 40-1; Dkt. # 31-1, Ex. D. Plaintiff also challenges Defendant’s reliance on her performance issues in 2016, offering evidence that 2016 was a difficult year for many districts and that District 24 still experienced some success. Dkt. # 40-1, Ex. 6; Dkt. # 40-1, Ex. 1. Finally, Plaintiff offers evidence that later performance issues in 2017 and 2018 were the result of Albertsons intentionally “hyper-inflat[ing]” her district’s sales projections and that her performance metrics had improved by April 2018, when she was terminated. See Dkt. # 41-1, Ex. 6 at ¶¶ 13-19; Dkt. # 40-1, Ex. 7 at 72:15-18; Dkt. # 41 at ¶ 39-44; see also Dkt. # 40-1, Ex. 3.

1 To prevail, however, Plaintiff must still show that she was treated differently than a similarly-situated employee outside of her protected class. Here, Plaintiff offers evidence that the District 24 district manager position was filled by a male employee, Brett Podnar, and that Mr. Podnar was treated more favorably than Plaintiff. Dkt. # 40- 1, Ex. 4; Dkt. # 41-1, Ex. 4, at ¶ 26.3 6 In opposing summary judgment, an employee’s evidentiary burden to establish a prima facie case is not onerous. See Aragon v. Republic Silver State Disposal, Inc., 292 8 F.3d 654, 659 (9th Cir. 2002) (The “requisite degree of proof necessary to establish a prima facie case for Title VII ... on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.”). Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that Plaintiff has established a prima facie case of discrimination. The burden then shifts to Albertsons to demonstrate a lawful motive for discharge.

14 Albertsons contends that Johnson was terminated because of performance issues.

15 Dkt. # 44 at 8. This is a legitimate, nondiscriminatory reason for termination and thus, under McDonnell Douglas, the burden now shifts to Johnson to put forth evidence that Albertson’s reasons are pretextual. A plaintiff can show pretext in two ways: either “directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Because Johnson has not offered any direct evidence of discrimination, she must instead provide “specific” and “substantial” circumstantial evidence that Albertsons’ explanation for her termination is pretextual. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011).

3 The parties dispute whether Plaintiff was replaced by a male employee. Defendant argues that Plaintiff was actually replaced by Eureka McCrae, a female employee. Dkt. # 44 at 7. However, as the non-moving party, the Court must view the evidence in a light most favorable to Plaintiff.

1 Johnson first points to the timing of her termination to support her claim that Albertsons’ explanation is a pretext for discrimination. Specifically, Johnson notes that she was placed on a performance improvement plan mere months after she began complaining about gender discrimination and terminated shortly thereafter. See Dkt. # 41 at ¶ 42; Dkt. # 40-1, Ex. 11 at 61:22-25, 62:1; Dkt. # 41-1, Ex. 6 at ¶ 12; see also Passantino v. Johnson & Johnson, 207 F.3d 599, 612 (9th Cir. 2000). Although the timing of Johnson’s termination, alone, is insufficient to establish pretext, Johnson also provides evidence that Mr. Backus hyper-inflated District 24’s sales projections after she raised concerns about gender discrimination. Dkt. # 41-1, Ex. 6 at ¶¶ 13-19.

10 Similarly, Johnson offers evidence that the performance metrics in her district had improved by early 2018, prior to her termination, undermining Albertsons’ claim that she was terminated because of her failure to improve. Dkt. # 41 at ¶ 58, Ex. C; Dkt. # 40-1, Ex. 3. Plaintiff’s claims of pretext are further bolstered by evidence of internal discussions among Albertsons leadership regarding the need to increase the legal fees in the FY 2018 budget because of Johnson. Dkt. # 40-1, Ex. 2. Finally, Plaintiff notes that several other female employees were demoted or terminated after Mr. Backus became the Senior Vice President of the Seattle Division. See Dkt. # 40-1, Ex. 4 at 141:1-25, 142:1-25, 143:1,144:1-13; Dkt. # 40-1, Ex. 5 at 103:4-18, 104:9-25, 105:1-19; Dkt. # 40-1, Ex. 4 at 137:15-25, 138:1-25, 139:1-14.

20 Viewing the evidence in the light most favorable to Plaintiff, the Court finds that the record contains reasonable but competing inferences of both discrimination and nondiscrimination on the basis of gender. Accordingly, Plaintiff’s claim for gender discrimination must be resolved by a jury.

24 ii. Retaliation 25 Defendant also moves for summary judgment as to Plaintiff’s Title VII and WLAD retaliation claims. Because Washington courts look to federal law when analyzing retaliation claims, the Court considers Plaintiff’s Washington state law claim and Title VII claim together. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003), as amended (Jan. 6, 2004); Graves v. Dep’t of Game, 76 Wn. App. 705, 712 (1994). The standard for retaliation under Title VII and the WLAD is identical, except for the causation element. Under Title VII, Johnson must establish the “but-for” cause of the adverse employment action, while under the WLAD she must demonstrate that the protected activity was a “substantial factor” in Albertsons’ decision to take the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (Title VII retaliation claims “require proof that the [employer’s] desire to retaliate was the but-for cause of the challenged employment action”); Allison v. Hous.

10 Auth. of City of Seattle, 118 Wn.2d 79, 95(1991) (rejecting “but-for” standard of causation in favor of more lenient “substantial factor” standard).

12 As with her discrimination claim, Johnson must first establish a prima facie case of retaliation, including: (1) that she engaged in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal link between her activity and the employment decision. Raad v. Fairbanks North Star Borough Sch.

16 Dist., 323 F.3d 1185, 1196–97 (9th Cir. 2003). If Johnson is able to assert a prima facie retaliation claim, the “burden shifting” scheme articulated in McDonnell Douglas applies. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

19 Johnson satisfies the first two elements: (1) she raised concerns about gender discrimination and (2) she was terminated. The only remaining question, then, is whether there is a causal link between her complaints about gender discrimination and her subsequent termination. As discussed in more detail above, Plaintiff offers evidence of the timing of her termination, intentionally inflated sales projections, general animosity towards her by Mr. Backus and others, internal discussions regarding legal fees related to Plaintiff, and evidence that performance in Plaintiff’s district had improved shortly before her termination. See supra at 6-7. Viewing this evidence in the light most favorable to Plaintiff, the Court finds that a reasonable juror could find a causal connection between Johnson’s complaints of gender discrimination and her termination.

3 The burden then shifts to Defendant to demonstrate a legitimate reason for the termination. As discussed above, Albertsons has met this burden of production, so the burden shifts back to Plaintiff to show that the reason is pretext for retaliation.

6 Although a close call, given the totality of the circumstances, a reasonable juror could find that Albertsons’ explanation for Plaintiff’s termination was a pretext for retaliatory motive. Thus, because Plaintiff has demonstrated a genuine issue of material fact, her claim for retaliation must go to the jury. Defendant’s motion for summary judgment is DENIED.

11 B. Plaintiff’s Motion for Partial Summary Judgment 12 Plaintiff separately moves for partial summary judgment as to Defendant’s affirmative defenses. Dkt. # 26. Defendant cross-moves for summary judgment as to the after-acquired evidence defense. Dkt. # 36.

15 i. Failure to state a claim 16 Plaintiff moves for judgment as a matter of law dismissing Defendant’s affirmative defense for failure to state a claim. Dkt. # 26 at 6. Plaintiff argues that this defense is frivolous because Plaintiff has clearly stated a claim for gender discrimination and retaliation. Dkt. # 26 at 7. Defendant does not dispute that Plaintiff has stated a claim for gender discrimination and retaliation under Title VII and the WLAD. However, Defendant argues that the “phrasing” of Plaintiff’s claims does not “foreclose the possibility that she may attempt to shift her legal theories beyond gender- based disparate treatment and retaliation.” Dkt. # 36 at 5. Defendant does not identify what these potential new theories of liability might be or offer any other support for its speculation that Plaintiff may attempt to expand the scope of her theories of liability.4 Plaintiff’s motion is GRANTED.

3 ii. Statute of limitations and Scope of EEOC charge 4 Plaintiff also moves for summary judgment as to Defendant’s statute of limitations and scope of EEOC charge defenses. Dkt. # 26 at 8. The parties do not dispute that Plaintiff’s claims for gender discrimination and retaliation under Title VII and the WLAD were filed within the applicable statute of limitations and are within the scope of her EEOC charge. Instead, Defendant again expresses concerns that Plaintiff may attempt to assert new alternative theories of liability at some point in the indefinite future. Defendant offers no evidence to support this assertion beyond what appears to be blind speculation. As explained above, this is insufficient to survive summary judgment.5 Accordingly, Plaintiff’s motion is GRANTED.

13 iii. Scope of employment 14 Plaintiff next moves for summary judgment as to Defendant’s scope of employment affirmative defense. Defendant argues that it cannot be held liable if Plaintiff cannot prove that its employees were acting within the scope of their employment when they engaged in discriminatory practices.

18 Plaintiff argues that no genuine issue of material fact exists that Mr. Schroeder, Ms. Morris, and Mr. Backus were acting within the scope of their employment with Albertsons when they engaged in discrimination. Dkt. # 26 at 10-11. Plaintiff notes that Schroeder and Morris are both corporate officers within Albertsons and that the 4 In addition, failure to state a claim is not a proper affirmative defense. Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174 (N.D. Cal. 2010).

5 The Court also notes that at this stage in the litigation it would be improper and highly prejudicial for Plaintiff to attempt to raise new theories of liability. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (holding that allowing the plaintiffs to proceed with a new theory of liability after the close of discovery would prejudice the defendants).

1 decision to terminate Plaintiff was within the scope of their employment. Dkt. # 26 at 11. Defendant offers no evidence in response, instead arguing that it is Plaintiff’s responsibility to prove this element at trial. Dkt. # 36 at 7. This is insufficient. Where Plaintiff as the moving party establishes that no genuine issue of fact exists, Defendant must counter with evidence of a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Plaintiff’s motion for summary judgment dismissing Defendant’s scope of employment defense is GRANTED.

8 iv. Independent, intervening, and unforeseeable acts 9 Defendant waives this affirmative defense. Dkt. # 36 at 7. Plaintiff’s motion is DENIED as moot.

11 iii. After acquired evidence 12 The parties cross-move for summary judgment as to Defendant’s after-acquired evidence affirmative defense. 6 The after-acquired evidence defense applies when “the employer discovers evidence of wrongdoing that, in any event, would have led to the employee’s termination on lawful and legitimate grounds.” McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 354 (1995). To establish this defense, Defendant must: (1) present after-acquired evidence of Plaintiff’s misconduct; and (2) prove by a preponderance of the evidence that it would have fired Plaintiff for that misconduct.

19 April v. U.S. Airways, Inc., No. CV-09-1707-PHX-LOA, 2010 WL 1196015, at *2 (D.

20 Ariz. Mar. 23, 2010).

21 Defendant argues that summary judgment is appropriate because after Plaintiff was terminated, Albertsons discovered a legitimate nondiscriminatory reason for which Plaintiff would have been fired. Specifically, Defendant claims that it later learned that Plaintiff retained various documents belonging to Defendant after her termination and 6 As Plaintiff correctly notes, Defendant’s cross-motion for summary judgment as to the after-acquired evidence affirmative defense was filed after the deadline for dispositive motions. Although Defendant’s motion is untimely, the Court will still consider it.

1 forwarded emails from Defendant’s email system to her own personal email address in violation of Albertsons’ policies. Dkt. # 36 at 6. According to Defendant, these violations “could easily have justified” Plaintiff’s termination. Id. Plaintiff argues that this defense must be dismissed because Defendant has not provided sufficient evidence to show that Albertsons would have terminated Plaintiff for violations of the policies.

6 Here, the Court finds that there is still a genuine issue of material fact as to whether Defendant would have terminated Plaintiff based on this after-acquired evidence.

8 Defendant’s cross-motion for summary judgment as to the after-acquired evidence defense is DENIED. Plaintiff’s motion is also DENIED.

10 C. Punitive Damages 11 Finally, the parties cross-move for summary judgment as to Plaintiff’s claim for punitive damages. Punitive damages are available for violations of Title VII where the plaintiff can show that the employer engaged in a discriminatory practice(s) with malice or reckless indifference. 42 U.S.C. § 1981a(b)(1). The plaintiff must also “impute liability for punitive damages to [the] respondent” by showing that the discrimination was committed by a managerial employee acting within the scope of his or her employment. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 540-41 (1999).

18 Plaintiff asks the Court to find as a matter of law that the Albertsons’ employees who allegedly engaged in discrimination, namely Robert Backus, Karl Schroeder, Susan Morris, and Trevor Ennis” were sufficiently “high placed” to impute liability to Defendant. Dkt. # 26 at 12. The Court agrees that there is no material question of fact as to whether the alleged discrimination was committed by a managerial employee.

23 Based on the record before the Court, Mr. Schroeder, Mr. Morris, and Mr. Backus were all managerial employees at the time they allegedly discriminated against Plaintiff.

25 Defendant offers no evidence to contest this. Accordingly, with respect to whether the employees who engaged in the allegedly discriminatory practices were sufficiently senior to impute liability to Defendant, Plaintiff’s partial motion for summary judgment is GRANTED.

3 Defendant does not appear to dispute the managerial status of Backus, Schroeder, Morris, and Ennis. Instead, Defendant argues that Plaintiff cannot show that Backus, Schroeder, Morris, or Ennis acted with malice or reckless indifference. Here, the Court finds there is still a material question of fact as to whether the “malice or reckless indifference” standard has been met. Accordingly, Defendant’s motion for summary judgment as to Plaintiff’s punitive damages claim is DENIED.

10 IV. CONCLUSION 11 For the foregoing reasons, Defendant’s motion for summary judgment is DENIED. Dkt. # 29. Plaintiff’s motion for partial summary judgment is GRANTED in part and DENIED in part. Dkt. # 26. Defendant’s cross-motion for summary judgment is DENIED. Dkt. # 36.

16 DATED this 28th day of January, 2020.

A The Honorable Richard A. Jones United States District Judge