Villanueva v. Wal-Mart Inc

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 18, 2020 3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON [4] MARTIN VILLANUEVA, GABELO No. 1:18-cv-03125-SMJ 5 TLATELPA, and JOHN DOE, Trustee, ORDER GRANTING IN PART 6 AND DENYING IN PART Plaintiffs, DEFENDANTS’ MOTIONS FOR 7 SUMMARY JUDGMENT, AND v. DENYING PLAINTIFFS’ 8 MOTIONS FOR SUMMARY WAL-MART INC., a foreign profit JUDGMENT 9 corporation, JAKE CARLSTROM, and AARON RODRIGUEZ, [10] Defendants. [11] 12 Before the Court, without oral argument,1 are Defendants Wal-Mart Inc. 13 (“Walmart”), Jake Carlstrom, and Andrew Rodriguez’s Motion for Summary 14 Judgment on Villanueva’s Claims, ECF No. 120, Defendants’ Motion for Summary 15 Judgment on Tlatelpa’s Claims, ECF No. 122, Plaintiff Martin Villanueva’s Motion 16 for Summary Judgment, ECF No. 126, and Plaintiff Gabelo Tlatelpa’s Motion for 17 Summary Judgment, ECF No. 127. Defendants seek summary judgment on each of [18] 1 Though Plaintiffs requested hearing with oral argument on Defendants’ motions, 19 the Court, having reviewed the record, the parties’ briefs, and the relevant legal authorities, is fully informed and finds the motions appropriate for decision without 20 oral argument. See LCivR 7(i)(3)(B)(iii). 1 Plaintiffs’ nine claims related to their respective termination from employment with 2 Walmart. ECF Nos. 120, 122. Plaintiffs seek summary judgment on their claims for 3 discrimination on the basis of disability under the Washington Law Against 4 Discrimination (WLAD) and the Washington Industrial Insurance Act (IIA). ECF 5 Nos. 126, 127. Plaintiff Tlatelpa also seeks summary judgment on his claim for 6 failure to accommodate. ECF No. 127. 7 Having reviewed the motions and the file in this matter, the Court is fully 8 informed. For the reasons discussed below, the Court finds genuine disputes of 9 material fact exist with regard to Plaintiffs’ claims for disability discrimination and 10 wrongful termination in violation of the IIA, and Plaintiff Tlatelpa’s failure to 11 accommodate claim, and therefore summary judgment is inappropriate on those 12 claims. However, the Court finds Defendants are entitled to judgment as a matter 13 of law on Plaintiffs’ hostile work environment claims. 14 BACKGROUND 15 In 2017, Defendants Villanueva and Tlatelpa both worked in Walmart’s 16 Grandview, Washington distribution center, sustained injuries on the job, filed 17 workers’ compensation claims, and were discharged after reaching the fourth and 18 final step of Walmart’s “accountability system.” ECF No. 78 at 3; ECF No. 120 at 19 5–6; ECF No. 122 at 5–7; ECF No. 126 at 2–4; ECF No. 127 at 2–5. 20 // 1 A. Walmart’s Accountability System 2 Defendants assert Walmart employs a “progressive accountability system 3 whereby employees . . . are disciplined to improve their job performance 4 or behavior to meet Walmart’s expectations.” ECF No. 120 at 2–3; ECF No. 122 5 at 2–3. Plaintiffs’ and Defendants’ representation of the exact procedures under this 6 system differ. Defendants assert an incident involving an employee that results in a 7 formal reprimand would be recorded in the employee’s personnel file as an 8 “occurrence until the issue reaches a step level.” ECF No. 120 at 3; ECF No. 122 9 at 3. Plaintiffs assert that this system also permitted recording certain incidents as 10 “events,” which were less severe than an occurrence and that two events would 11 result in a recorded occurrence. ECF No. 126 at 6; ECF No. 127 at 5. 12 Discipline under the accountability system included four steps; reaching the 13 fourth step would result in an employee’s termination. ECF No. 120 at 3; ECF 14 No. 122 at 3. An employee’s status within the accountability system was recorded 15 under two categories—Section A related to safety, procedure, quality, productivity, 16 or other topics, and Section B related to attendance and punctuality. ECF No. 120 17 at 3; ECF No. 122 at 3. Employees could be at Step One or Step Two in either 18 category and incur an additional step without termination, but once the employee 19 reached Step Three in either category, any further step progression in either 20 category would result in progression to Step Four and termination. ECF No. 120 1 at 3–4; ECF No. 122 at 3–4. 2 B. Villanueva’s Employment, Injury, and Termination 3 Plaintiff Villanueva began working for Walmart on November 19, 2007 and 4 was terminated on September 12, 2017. ECF No. 120 at 5. On May 30, 2017, 5 Villanueva was putting away a pallet of water when the cases of water fell. ECF 6 No. 120 at 5; ECF No. 126 at 3. He and a co-worker were putting the cases back on 7 the pallet when the cases of water fell again and struck Villanueva. ECF No. 120 8 at 3; ECF No. 126 at 3. Villanueva sustained injuries to his shoulder and knee. ECF 9 No. 126 at 3. He filed a workers’ compensation claim related to the incident. ECF 10 No. 120 at 6. Defendant asserts Villanueva’s injury was a result of his violation of 11 safety procedures because he placed himself in an unsafe “pinch point” between the 12 rack and the pallet and was therefore unable to avoid being struck by the falling 13 cases. ECF No. 120 at 5–6. Plaintiff Villanueva asserts that he did not place himself 14 in a pinch point and that he had previously used the same method to pick up fallen 15 merchandise without reprimand. ECF No. 126 at 4. 16 Walmart investigated this incident and found Villanueva’s conduct reckless, 17 meriting an immediate escalation to Step Three. ECF No. 120 at 6. Villanueva 18 argues the decision to find his conduct reckless, rather than careless meriting only 19 an escalation to Step One, was part of Defendants’ practice of targeting workers 20 who had been injured in the course of employment and who filed workers’ 1 compensation claims. See ECF No. 126 at 2–3. Villanueva also argues Walmart 2 failed to communicate the finding of recklessness within the time required by 3 Walmart’s policies and that after the incident, Walmart “was looking for any excuse 4 to fire him.” Id. On September 7, 2017, Walmart asserts Villanueva placed a pallet 5 in the wrong location, which resulted in a progression to Step Four and Villanueva’s 6 termination. ECF No. 120 at 6–7. Villanueva asserts he challenged the claim that he 7 had misplaced the pallet, but his challenge was not addressed. ECF No. 126 at 4–5. 8 C. Plaintiff Tlatelpa’s Employment, Injury, and Termination 9 Plaintiff Tlatelpa began working for Walmart on or about November 28, 2016 10 and was terminated on September 14, 2017. ECF No. 122 at 5. On May 25, 2017, 11 Tlatelpa was injured while operating power equipment and filed a workers’ 12 compensation claim. ECF No. 122 at 5–6; ECF No. 127 at 2. Tlatelpa had already 13 received two step-increases, once for taking too long for lunch on March 16, 2017, 14 and once for a fifth incident of failing to make productivity goals in April 2017. 15 ECF No. 122 at 5. Walmart investigated the May 25, 2017 incident resulting in 16 Tlatelpa’s injury, determined he had engaged in reckless behavior, and progressed 17 Tlatelpa’s status from Step Two to Step Three. Id. at 5–6. 18 Defendants assert Tlatelpa failed to timely call Walmart to report his absence 19 on August 31, 2017, resulting in a progression to Step Four and Plaintiff Tlatelpa’s 20 termination. Id. at 6. Tlatelpa asserts that after his injury, he was repeatedly assessed 1 “occurrences” related to missing work for doctors’ appointments and otherwise 2 stemming from the recommended treatment of his injuries, despite Walmart being 3 made aware of these appointments and recommendations in advance. ECF No. 127 4 at 4–5. Tlatelpa asserts these reported occurrences in conjunction with his 5 August 31, 2017 late call resulted in his progression to Step Four and termination. 6 Id. at 5. 7 D. Relevant Procedural History 8 Defendants filed a motion for summary judgment pertaining to each Plaintiff, 9 asserting each Plaintiff’s nine claims fail as a matter of law. ECF Nos. 120, 122. In 10 response to the Defendants’ motions, Plaintiffs voluntarily dismissed their claims 11 under the Family Medical Leave Act (FMLA), under the Washington Family Leave 12 Act (WFLA), for intentional and negligent infliction of emotional distress, and for 13 breach of contract. ECF No. 129 at 2; ECF No. 130 at 2. Plaintiffs each filed a 14 motion for summary judgment asserting judgment as a matter of law is appropriate 15 on their claims for disability discrimination under the WLAD and the Washington 16 IIA. ECF Nos. 126, 127. Plaintiff Tlatelpa also seeks summary judgment on his 17 claim for failure to accommodate. ECF No. 127. 18 LEGAL STANDARD 19 The Court must grant summary judgment if “the movant shows that there is 20 no genuine dispute as to any material fact and the movant is entitled to judgment as 1 a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the 2 outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 3 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if “the evidence 4 is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 5 In ruling on a summary judgment motion, the Court must view the evidence 6 in the light most favorable to the nonmoving party. See Tolan v. Cotton, 572 7 U.S. 650 , 657 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144 , 157 8 (1970)). Thus, the Court must accept the nonmoving party’s evidence as true and 9 draw all reasonable inferences in its favor. See Anderson, 477 U.S. at 255. The 10 Court may not assess credibility or weigh evidence. See id. Nevertheless, the 11 nonmoving party may not rest upon the mere allegations or denials of its pleading 12 but must instead set forth specific facts, and point to substantial probative evidence, 13 tending to support its case and showing a genuine issue requires resolution by the 14 finder of fact. See Anderson, 477 U.S. at 248–49. 15 DISCUSSION 16 A. New claims raised in motions for summary judgment and new facts and arguments in overlength reply briefs [17] 18 As an initial matter, the Court has not considered Plaintiffs’ arguments raised 19 for the first time in their motions for summary judgment that they are entitled to 20 judgment as a matter of law on claims for disparate impact in violation of the 1 WLAD. ECF No. 126 at 12–14; ECF No. 127 at 13–14. The First Amended 2 Complaint makes no mention of a claim for discrimination based on disparate 3 impact, nor does it include allegations that would lead to a belief that Plaintiffs 4 intended to bring such a claim. To establish a prima facie case of disparate impact, 5 a plaintiff must show (1) a facially neutral employment practice (2) that falls more 6 harshly on a protected class. Kumar v. Gate Gourmet, Inc., 325 P.3d 193 , 204 7 (Wash. 2014) (citing Oliver v. Pac. Nw. Bell Tel. Co., 724 P.2d 1003 , 1006 8 (Wash. 1986)). However, the facts described in the First Amended Complaint do 9 not include a facially neutral practice that falls more harshly on a protected class; it 10 focuses on Defendants’ intentionally discriminatory use of policies to target certain 11 employees. ECF No. 78 at 3–4. Plaintiffs also only assert a claim based on 12 Defendants targeting Plaintiffs. Id. at 5. The deadline to amend the First Amended 13 Complaint has passed and Plaintiffs have not sought leave to add any claims. As 14 such, the Court disregards Plaintiffs’ arguments related to disparate impact. 15 Further, Plaintiffs’ reply briefs in support of their motions for summary 16 judgment were approximately twenty pages in length. ECF Nos. 155, 156. The 17 Court’s Local Civil Rules limit all reply memoranda to ten pages in length. 18 LCivR 7(f)(3). Moreover, in these replies, Plaintiffs attempt to present new facts 19 and arguments that were not presented as a part of the original motion or raised in [20] 1 Defendants’ responses.2 See ECF Nos. 155, 156. “It is well established that new 2 arguments and evidence presented for the first time in a Reply are waived.” 3 Docusign, Inc. v. Sertifi, Inc., 468 F.Supp.2d 1305, 1307 (W.D. Wash. 2006) (citing 4 U.S. v. Patterson, 230 F.3d 1168, 1172 (9th Cir. 2000). The Court has therefore not 5 considered the new evidence and arguments raised in the reply briefs and has only 6 considered the first ten pages of each brief.3 7 B. Voluntarily dismissed claims 8 Plaintiffs seek voluntary dismissal of their claims under the FMLA, under the 9 WFLA, for intentional and negligent infliction of emotional distress, and for breach 10 of contract. ECF No. 129 at 2; ECF No. 130 at 2. Plaintiff Villanueva also [11] 2 In fact, it would appear some of the evidence Plaintiffs attempt to argue was not 12 disclosed to Defendants as it was only recently discovered by Plaintiffs. See ECF No. 155 (discussing evidence found on March 1, 2020). Defendants filed a Motion 13 to Strike Plaintiffs’ replies in Support of Their Motions for Summary Judgment, ECF No. 160, which confirms that this evidence had not been disclosed to 14 Defendants until the reply brief was filed. ECF No. 160 at 4. 15 3 Defendants filed a Motion to Strike Plaintiffs’ replies, arguing that Plaintiffs’ replies were overlength, that Plaintiffs’ replies raised previously undisclosed 16 evidence, and that Plaintiffs’ replies mischaracterized Defendants’ evidence. ECF No. 160. Plaintiffs then filed a Motion for Leave Regarding Page Count, asking the 17 Court to consider only one reply as though filed by both Plaintiffs or, alternatively, to only consider the first ten pages of each brief. ECF No. 164. Regarding the third 18 argument, the Court understands Plaintiffs’ characterization of Defendants’ evidence as a competing interpretation of the evidence, which is not inappropriate. 19 Because the Court has not considered the new arguments or evidence presented in the replies and has only considered the first ten pages of each reply, these motions 20 are denied as moot. 1 represents that he “is not bringing a claim for failure to accommodate,” and that 2 only Plaintiff Tlatelpa is asserting this claim. ECF No. 129 at 16. But as to the 3 failure to accommodate claim, the First Amended Complaint includes both Plaintiff 4 Villanueva and Plaintiff Tlatelpa. ECF No. 78 at 7 (“Defendants violated 5 Washington State Law against discrimination by failing to accommodate Plaintiffs’ 6 medical conditions . . .”) (emphasis added). As such, the Court understands that 7 Plaintiff Villanueva is seeking voluntary dismissal of his claim for failure to 8 accommodate, and Defendants similarly interpret this as Plaintiff Villanueva’s 9 intent to voluntarily dismiss this claim. See ECF No. 146 at 2. Defendants do not 10 object to dismissal of these claims but rather describe dismissal as appropriate. ECF 11 No. 146 at 2; ECF No. 148 at 2. As such, the Court will grant voluntary dismissal 12 of these claims and Defendants’ motions for summary judgment on these claims are 13 denied as moot. 14 C. Discrimination and hostile work environment 15 Defendants move for summary judgment on each of Plaintiffs’ respective 16 claims of disability discrimination and hostile work environment under WLAD. 17 Plaintiffs each seek summary judgment on their claims for disability discrimination 18 under WLAD and oppose summary judgment on their claims for hostile work 19 environment. 20 // 1 1. There is a dispute of material fact related to Plaintiffs’ claims for disability discrimination [2] Plaintiffs assert Defendants violated the WLAD, Wash. Rev. Code § 49.60 , [3] et seq., by taking adverse employment actions, retaliating against Plaintiffs, and [4] ultimately terminating them because of their disability or industrial injury. ECF [5] No. 78 at 5. Washington law prohibits employers from discriminating against any [6] person in the conditions of employment or discharging any person because of [7] disability. Wash. Rev. Code §§ 49.60.180 (2), (3). However, “smoking gun” [8] evidence of discriminatory motive is rare because proof resides in the employer’s [9] mental processes and savvy employers “infrequently announce their bad motives [10] orally or in writing.” Hill v. BCTI Income Fund-I, 23 P.3d 440, 445 (Wash. 2001), [11] abrogated on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cty., [12] 404 P.3d 464 (Wash. 2017) (citations omitted). Thus, to ensure plaintiffs are not [13] unfairly denied their day in court, Washington courts utilize the burden-shifting [14] framework announced by the United States Supreme Court in McDonnell Douglas [15] Corp. v. Green, 411 U.S. 792 (1973), to “‘compensate for the fact that direct [16] evidence of intentional discrimination is hard to come by.’” Hill, 23 P.3d at 445 [17] (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989)). [18] Under this framework, an employee claiming discrimination or retaliation [19] due to disability must first establish a prima facie case by establishing the elements [20] 1 of the particular claim. See Brownfield v. City of Yakima, 316 P.3d 520 , 533 (Wash. 2 Ct. App. 2013) (quoting Swinford v. Russ Dunmire Oldsmobile, Inc., 918 P.2d 186 , 3 193 (Wash. Ct. App. 1996)). To establish a prima facie case for discrimination due 4 to disability, the employee must show he was “[(1)] disabled, [(2)] subject to an 5 adverse employment action, [(3)] doing satisfactory work, and [(4)] discharged 6 under circumstances that raise a reasonable inference of unlawful discrimination.” 7 Brownfield, 316 P.3d at 533 (Wash. Ct. App. 2013) (alterations in original) (quoting 8 Callahan v. Walla Walla Hous. Auth., 110 P.3d 782, 786 (Wash. Ct. App. 2005)). 9 Once the employee has established a prima facie case, the burden “shifts to 10 the employer to present evidence suggesting a nondiscriminatory reason for [the 11 termination].” Brownfield, 316 P.3d at 533 (alterations in original) (quoting 12 Swinford, 918 P.2d at 193 ). “If the employer sustains its burden, the employee must 13 then demonstrate that the reasons given by the employer are pretext for 14 discrimination.” Swinford, 918 P.2d at 193 . “A plaintiff cannot create a pretext issue 15 without some evidence that the articulated reason for the employment decision is 16 unworthy of belief.” Kuyper v. Dep’t of Wildlife, 904 P.2d 793, 797 (Wash. Ct. 17 App. 1995 ). “To do this, a plaintiff must show, for example, that the reason has no 18 basis in fact, it was not really a motivating factor for the decision, it lacks a temporal 19 connection to the decision or was not a motivating factor in employment decisions 20 for other employees in the same circumstances.” Id. 1 In their motion for summary judgment, Defendants focus on whether, 2 assuming Plaintiffs can establish a prima facie case for disability discrimination, 3 Plaintiffs can show that Walmart’s proffered reasons for discharging each Plaintiff 4 were pretext for discrimination. ECF No. 120 at 9–10; ECF No. 122 at 11. Because 5 Defendants’ arguments focus on this stage of the process, the Court will assume, 6 without deciding, that Plaintiffs can establish a prima facie case and consider 7 whether Plaintiffs have submitted sufficient evidence to show Defendants’ 8 justifications for terminating Plaintiffs were pretextual. 9 Walmart has presented evidence that Plaintiff Villanueva was terminated for 10 “misconduct with coachings,” and specifically that Villanueva was elevated to Step 11 Three as a result of reckless behavior and that he was then elevated to Step Four as 12 a result of incorrectly placing a pallet. ECF No. 125 at 3–4, 15–16. Walmart has 13 also presented evidence that Plaintiff Tlatelpa was terminated for “misconduct with 14 coachings,” and specifically that Tlatelpa was elevated to Step Three as a result of 15 reckless behavior and that he was elevated to Step Four for failing to timely call to 16 report his absence from a scheduled workday. ECF No. 125 at 3, 30–31. Because 17 Defendants have presented evidence of a nondiscriminatory reason for termination, 18 Plaintiffs must “demonstrate that the reasons given by the employer are pretext for 19 discrimination.” Swinford, 918 P.2d at 193 . 20 Plaintiff Villanueva argues that Walmart’s finding of recklessness, its 1 decision to elevate him to Step Three, and its determination that he incorrectly 2 placed a pallet are not worthy of belief. Specifically, Villanueva has presented 3 declarations indicating that for ten years, he had consistently picked up fallen 4 merchandise using the same method he used on May 30, 2017, that this method was 5 not out of the ordinary for him or his coworkers, and that on May 30, 2017, contrary 6 to Walmart’s finding, he was not in a pinch point. ECF No. 126-3 at 3; ECF 7 No. 131-1 at 3–4. Villanueva also submitted a sworn declaration concerning the 8 alleged incorrect placement of the pallet, stating that he put the pallet in the correct 9 slot and scanned it, that his device would have alerted if the scanned pallet was in 10 the wrong slot and would not have allowed him to complete the process, that 11 everyone in the warehouse has access to move the pallets, and that Walmart did not 12 locate the misplaced pallet until days after the alleged misplacement. ECF 13 No. 126-3 at 4; ECF No. 131-1. 14 Plaintiff Tlatelpa has presented evidence that Walmart’s decision to elevate 15 him to Step Three based on his accident and to elevate him to Step Four based on 16 his late call-out were pretextual. Like Plaintiff Villanueva, Plaintiff Tlatelpa has 17 presented evidence that on the date of his injury, he was using his equipment in the 18 same manner as he had previously and “it had not been an issue” prior to his injury 19 and that the machine moved as it did because of the weight of the items rather than 20 because he was careless or reckless. ECF No. 127-2 at 3. Moreover, Tlatelpa has 1 presented evidence that Walmart improperly assessed negative disciplinary entries 2 against him for absences related to his treatment, and that if Walmart had not done 3 so, he would not have been elevated to a Step Four and discharged when he called 4 out late on August 31, 2017. Id. at 5. 5 In reviewing Plaintiffs’ evidence in support of their arguments that 6 Defendants’ explanations were pretextual, the Court finds sufficient evidence from 7 which a rational juror could conclude either that the explanations were or that they 8 were not pretextual. Because Defendants have put forward a legitimate, non9 discriminatory reason for terminating both Plaintiffs and Plaintiffs have responded 10 with credible evidence that these reasons were pretextual, summary judgment is not 11 appropriate. See Carle v. McChord Credit Union, 827 P.2d 1070, 1077 (Wash. Ct. 12 App. 1992 ) (“When all three facets of the burden of production have been met, the 13 case must be submitted to the jury.”). 14 2. There is no dispute of material fact related to Plaintiffs’ claims for hostile work environment [15] 16 Plaintiffs assert that Defendants’ subjected them to a hostile and abusive 17 working environment.4 ECF No. 78 at 6. Under Washington law, to establish a [18] 4 Plaintiffs do not identify a statutory basis for hostile work environment in the First 19 Amended Complaint. However, Title VII of the Civil Rights Act of 1964 “protects persons on the basis of ‘race, color, religion, sex, or national origin,’ it does not 20 protect persons on the basis of disability.” Dotson v. County of Kern, 2011 WL 1 prima facie case for a hostile work environment claim, a plaintiff must show that 2 (1) he or she was subjected to unwelcome hostile or abusive conduct, (2) the 3 conduct was based on the plaintiff’s protected status, (3) the conduct was 4 sufficiently severe to affect the terms and conditions of employment and create an 5 abusive working environment, and (4) the hostile or abusive conduct is imputable 6 to the employer. See Glasgow v. Georgia-Pacific Corp., 693 P.2d 708 , 711–12 7 (Wash. 1985). “[I]solated or trivial manifestations of a discriminatory environment” 8 are insufficient to state a cause of action under Washington law. Id. To determine 9 whether the conduct was sufficiently pervasive so as to alter the conditions of 10 employment and create an abusive working environment, the Court considers the 11 totality of the circumstances, including frequency and severity of the alleged 12 conduct, whether the conduct involved words alone or also included physical 13 intimidation or humiliation, and whether the conduct interfered with the employee’s 14 work performance. Adams v. Able Bldg. Supply, Inc., 57 P.3d 280, 283 (Wash. Ct. 15 App. 2002 ) (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993); Glasgow, [16] 693 P.2d at 712 ; MacDonald v. Korum Ford, 80 Wn. App. 877, 885 , 912 P.2d 1052 17 (Wash. Ct. App. 1996)). 18 Neither Plaintiff has made a prima facie case of a hostile work environment [19] 902142, at *6 (E.D. Cal. Mar. 15, 2011). As such, the Court understands Plaintiffs’ 20 claim as arising from Washington law. 1 because neither Plaintiff has shown that they were subjected to unwelcome hostile 2 or abusive conduct that was sufficiently severe to create an abusive working 3 environment. Plaintiff Villanueva argues that “placing injured workers at an 4 automatic step 3 constitutes a hostile work environment,” that he was “in an 5 extremely vulnerable position,” was “under stress,” and that he “could tell his 6 supervisors . . . were looking for any reason to fire him.” ECF No. 129 at 14. 7 However, Plaintiff Villanueva does not identify any specific hostile or abusive 8 conduct to which he was subjected, nor identify any authority holding that an 9 employer’s heightened oversight or concern for losing one’s job created a hostile 10 work environment. Id. 11 The Court cannot conclude that Plaintiff Villanueva’s perception that his 12 employers were “looking for any reason to fire him” constitutes actionable hostile 13 or abusive conduct. Cf. Brooks v. BPM Senior Living Co., 180 Wash. App. 1001 , [14] 2014 WL 1018226 , at *8 (Wash. Ct. App. 2014) (affirming finding that 15 communications that caused plaintiff concern over losing her job were not hostile, 16 concluding the messages were upsetting because of possible job loss, not the way 17 in which the message was communicated). Accepting Villanueva’s allegations as 18 true and drawing all reasonable inferences in his favor, he has not come forward 19 with sufficient evidence for a rational juror to find they were subject to a sufficiently 20 hostile work environment on the basis of his alleged disability. 1 Plaintiff Tlatelpa identifies the following as events establishing a hostile 2 work environment: (1) the initial refusal to allow him to see a doctor on the day of 3 his injury; (2) the requirement that he return to Walmart for transport for treatment, 4 (3) interference with his doctor’s recommendations; (4) that, after he returned to 5 work and his foot began to swell, Walmart refused to allow him to go to a doctor 6 and told him if he left, “Walmart would write him up;” (5) reprimanding him the 7 following day for leaving to see a doctor after his foot began swelling; and 8 (6) reprimanding him for absences caused by his treatment for which he gave 9 Walmart advance notice. ECF No. 130 at 13. However, Plaintiff Tlatelpa fails to 10 explain how these factual allegations establish that this was hostile or abusive 11 conduct or was sufficiently severe to affect the terms and conditions of employment 12 and create an abusive working environment. Plaintiff Tlatelpa does not provide 13 evidence of how this may have been intimidating or humiliating and does not 14 identify any authority in support of finding that interfering with an employee’s 15 medical care, absent some other circumstances, constitutes hostile or abusive 16 conduct. 17 The Court accepts that Plaintiff Tlatelpa may have found Defendants’ 18 conduct personally upsetting or offensive, and the described conduct is certainly 19 both concerning and highly relevant to Tlatelpa’s failure to accommodate claim. 20 However, there is no indication that these communications under the totality of the 1 circumstances constituted an abusive working environment. Cf. Brooks, 2014 2 WL 1018226 , at *8. As such, both Plaintiffs’ claims for hostile work environment 3 fail as a matter of law and summary judgment in favor of Defendants is appropriate. 4 D. Wrongful termination and Washington Industrial Insurance Act 5 Defendants move for summary judgment on Plaintiffs’ claims of wrongful 6 discharge in violation of public policy. Plaintiffs and Defendants each also move 7 for summary judgment on Plaintiffs’ claims that Defendants violated Washington 8 State’s IIA. 9 As a preliminary matter, Plaintiffs allegations of wrongful termination have 10 evolved since the filing of the First Amended Complaint and it now appears 11 Plaintiffs’ claims for wrongful termination are subsumed by their claims for 12 violation of the IIA. In the First Amended Complaint, Plaintiffs asserted that 13 “Defendants wrongfully terminated Plaintiffs in violation of public policy by 14 retaliating against Plaintiffs and terminating them for taking protected medical 15 leave and for requiring medical accommodations.” ECF No. 78 at 7. However, 16 Plaintiffs have since sought voluntary dismissal of their claims for violations of the 17 FMLA and WFLA and of Plaintiff Villanueva’s claim for failure to accommodate. 18 ECF No. 129 at 2; ECF No. 130 at 2. 19 Plaintiffs’ arguments now focus on Defendants allegedly discharging 20 Plaintiffs for their injuries on the job and subsequent workers’ compensation claims. 1 ECF No. 129 at 15–16; ECF No. 130 at 18–19; ECF No. 129-1 at 6. However, these 2 claims overlap entirely with Plaintiff’s claims that, under the IIA they were entitled 3 to receive benefits for a workers’ compensation injury, that they filed workers’ 4 compensation claims, and that Defendants took adverse employment action against 5 them, interfered with their workers’ compensation benefits, and discharged and 6 discriminated against them based on their exercise of rights protected by the IIA. 7 ECF No. 78 at 9–10. Plaintiffs’ arguments on their IIA claims also focus on the 8 same action as the claims for wrongful termination in violation of public policy, 9 namely, Defendants’ discharge of Plaintiffs after Plaintiffs filed workers’ 10 compensation claims. ECF No. 126 at 14–15; ECF No. 127 at 14–16. As such, the 11 Court understands these as a single cause of action for wrongful termination in 12 violation of the IIA. 13 Washington recognizes the tort of wrongful discharge in violation of public 14 policy.5 Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089 (Wash. 1984). 15 Wrongful discharge claims under Washington law employ a similar burden shifting 16 framework as disability discrimination claims. To establish a prima facie case of [17] 5 In Washington, as in many states, unless specified, an employment contract is 18 terminable at will by either the employee or the employer. Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1084 (Wash. 1984). Even so, a Washington employer 19 may not rely on the terminable at will doctrine to “shield [its] action which otherwise frustrates a clear manifestation of public policy.” Id. at 1088 . [20] 1 retaliatory discharge, the employee must show three elements: 2 (1)[T]hat he or she exercised the statutory right to pursue workers’ benefits under RCW Title 51 or communicated to the employer an 3 intent to do so . . . ; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the 4 discharge, i.e., that the employer’s motivation for the discharge was the employee’s exercise of or intent to exercise the statutory rights. [5] 6 Wilmot v. Kaiser Aluminum & Chem. Corp., 821 P.2d 18 , 28–29 (Wash. 1991).6 As 7 to the third element of the prima facie case, “[p]roximity in time between the claim 8 and the firing is a typical beginning point, coupled with evidence of satisfactory 9 work performance and supervisory evaluations. Evidence of an actual pattern of 10 retaliatory conduct is, of course, very persuasive.” Wilmot, 821 P.2d at 29 (quoting 11 1 L. Larson, Unjust Dismissal § 6.05[5] (1988)). 12 If the plaintiff succeeds at this first step, the burden shifts to the employer to 13 “articulate a legitimate nonpretextual nonretaliatory reason for the discharge.” Id. 14 at 29. If the employer does so, the burden shifts back to the employee to demonstrate 15 that the employer’s proffered justification was pretextual or, even if it was [17] 18 6 Even if Plaintiffs were able to assert these as separate claims, the legal standard for wrongful termination in violation of the IIA is identical to the standard 19 announced in Wilmot, 821 P.2d. See Anica v. Wal-Mart Stores, Inc., 84 P.3d 1231, 1237 (Wash. Ct. App. 2004) (applying Wilmot standard to claim for wrongful 20 discharge to claim for wrongful discharge in violation of IIA). 1 legitimate, that the employer’s retaliatory motive was a “substantial or important 2 factor motivating the discharge.” Id. at 29, 30. 3 The parties do not contest that both Plaintiffs Villanueva and Tlatelpa 4 exercised their statutory right to file workers’ compensation claims or that Plaintiffs 5 were thereafter discharged. ECF No. 121 at 3, 5; ECF No. 123 at 5; ECF No. 126-1 6 at 3, 4; ECF No. 127-1 at 5. Defendants argue that the following facts undermine 7 Plaintiffs’ claims: (1) the nearly four-month period between Plaintiffs’ filing of a 8 compensation claim and their termination, and (2) the fact that they were each 9 terminated after progressing to Step Four of WalMart’s accountability system. ECF 10 No. 120 at 14–15; ECF No. 122 at 15. Defendants’ second argument is more 11 appropriately construed as rebuttal evidence showing a legitimate, non-retaliatory 12 reason for discharging Plaintiffs. 13 As to the first argument, although the three-to-four-month gap may weigh 14 against finding that Plaintiffs have made a prima facie case, the Court does not find 15 this gap dispositive given that Plaintiffs have presented other evidence in support 16 the causal inference. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 , 273 17 (2001) (citing with approval cases holding that three-month and four-month period 18 were insufficient to establish causation for a prima facie case where there was no 19 evidence of causation beyond temporal proximity). Plaintiffs have submitted 20 evidence that Plaintiff Villanueva had minimal prior history of reprimand, ECF 1 No. 126-1 at 2, that Plaintiffs challenged the reprimands both had received as 2 inappropriate or retaliatory, ECF No. 131 at 3, 5–6, ECF No. 131-1 at 5, and that in 3 Plaintiff Villanueva’s ten years of employment, he had observed a pattern of injured 4 workers being separated from Walmart, ECF No. 126-3 at 2. 5 Walmart describes Plaintiffs’ claims of causation as “pure speculation.” ECF 6 No. 120 at 14–15; ECF No. 122 at 15. However, the issue of what weight to give 7 evidence is a question for the trier of fact and the Court finds that at this stage, 8 Plaintiffs have produced sufficient evidence for a reasonable trier of fact to 9 conclude that there was a causal connection between Plaintiffs’ termination and 10 their workers’ compensation claims. 11 Defendants also maintain Plaintiffs were terminated in accordance with 12 Walmart’s accountability system for unsatisfactory performance. ECF No. 120 13 at 14–15; ECF No. 122 at 15. If credited by the finder of fact, these explanations 14 would suffice as nonretaliatory justifications for Plaintiffs’ termination. Therefore, 15 Plaintiffs bear the burden of establishing either that Defendants’ explanations are 16 pretextual or that, even if they are legitimate, Plaintiffs’ filing workers’ 17 compensation claims were substantial motivating factors in their respective 18 terminations. Wilmot, 821 P.2d at 28–29. As discussed above, Plaintiffs have 19 presented evidence that Walmart’s proffered justifications were pretextual, and the 20 same evidence would support the inference of retaliation for filing workers’ 1 compensation claims. Considering the evidence and drawing all reasonable 2 inferences in favor of Plaintiffs, Plaintiffs have produced competent evidence that 3 retaliation could have been a substantial factor behind their termination. As such, 4 genuine issues of material fact preclude summary judgment on these claims. 5 E. Failure to accommodate 6 Defendants and Plaintiff Tlatelpa each move for summary judgment on 7 Tlatelpa’s failure to accommodate claim. Tlatelpa asserts Defendants violated 8 WLAD by failing to accommodate his medical conditions. ECF No. 78 at 7. 9 To establish a prima facie case of failure to accommodate, Tlatelpa must 10 establish that (1) he had a sensory, mental, or physical impairment that substantially 11 limited a major life activity, (2) he was qualified to perform the essential functions 12 of the job, (3) he gave the employer notice of the disability and its substantial 13 limitations, and (4) upon notice, his employer failed to affirmatively adopt available 14 measures that were medically necessary to accommodate his disability. Davis v. 15 Microsoft Corp., 70 P.3d 126, 131 (Wash. 2003). 16 Defendants do not dispute that Tlatelpa had an impairment meeting the 17 standard or that he was qualified to perform the essential functions of his job. ECF 18 No. 122 at 16–17; ECF No. 135 at 20. As to the third and fourth elements, 19 Defendants contend that Tlatelpa failed to request a reasonable accommodation 20 beyond his assignment to Temporary Alternative Duty. ECF No. 122 at 17; ECF 1 No. 135 at 20. Defendants assert that the Temporary Alternative Duty complied 2 with the restrictions imposed by Tlatelpa’s doctor and that he never requested an 3 additional accommodation. ECF No. 122 at 17; ECF No. 135 at 20. 4 Tlatelpa first contends that Walmart contacted his doctor to ask that he 5 change his recommendation from refraining from all work from May 25, 2017 6 through June 1, 2017, to being permitted to work with restrictions. ECF No. 127 7 at 17; ECF No. 130 at 17. However, Tlatelpa does not identify how, if at all, the 8 altered recommendation failed to incorporate medically-necessary 9 accommodations. That Walmart proposed limitations on Tlatelpa’s work to the 10 doctor and the doctor determined Tlatelpa could perform work with those 11 limitations does not show that Walmart failed to affirmatively adopt available 12 measures that were medically necessary to accommodate the injury. See Davis, 70 13 P.3d at 134 (“[R]easonable accommodation . . . envisions an exchange between 14 employer and employee where each seeks and shares information to achieve the 15 best match between the employee’s capabilities and available positions.” (quoting 16 Goodman v. Boeing Co., 899 P.2d 1265, 1270 (Wash. 1995)); see also ECF 17 No. 127-3 (explaining Walmart’s process of discussing employment restrictions 18 with doctors). 19 Tlatelpa next argues that Walmart refused to allow him to leave to seek 20 medical treatment when his injury was causing pain and swelling and later refused 1 to allow him to attend his medical appointments without assessing penalties in the 2 accountability system. ECF No. 127 at 17; ECF No. 130 at 17. Contrary to 3 Defendants’ assertion that Plaintiff Tlatelpa did not request accommodation beyond 4 his assignment to Temporary Alternative Duty, Tlatelpa has presented evidence 5 showing that he asked to take time off to attend medical appointments related to 6 his disability and that Walmart disciplined him for these absences. ECF No. 127-2 7 at 4–5; ECF No. 127-3 at 48. 8 Neither party cites to an interpretation of whether refusal to allow an 9 employee permission to miss work to attend medical appointments related to his 10 disability constitutes failure to accommodate. However, at least one case addressing 11 a failure to accommodate claim under California law found that threatening to 12 terminate an employee for attending medically-necessary appointments supported 13 a finding of failure to accommodate. See Rizzio v. Work World Am., Inc., No. 2:1414 cv-02225-TLN-DAD, 2015 WL 5601352 , at *8 (E.D. Cal. Sept. 22, 2015). 15 Moreover, the parties contest whether the violations assessed against Tlatelpa were 16 actually caused by attending medical appointments or were unrelated to Tlatelpa’s 17 injury. See ECF No. 136 at 5. As such, there remains a question of material fact as 18 to whether Walmart’s alleged interference with Tlatelpa’s medical appointments 19 was a failure to affirmatively adopt available measures that were medically [20] 1 necessary to accommodate the injury and summary judgment on this claim is not 2 appropriate. 3 CONCLUSION 4 Because genuine disputes of material fact exist with regard to Plaintiffs’ 5 claims for disability discrimination and wrongful termination in violation of the IIA, 6 and concerning Plaintiff Tlatelpa’s failure to accommodate claim, summary 7 judgment is inappropriate. As such, Plaintiffs’ motions for summary judgment are 8 denied and Defendants’ motions for summary judgment are denied in part as to 9 these claims. However, Defendants are entitled to judgment as a matter of law on 10 Plaintiffs’ hostile work environment claim and their motions for summary judgment 11 are granted as to these claims. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Based on Plaintiff’s stated intent to voluntarily dismiss, the following 14 claims are DISMISSED WITHOUT PREJUDICE: 15 A. Plaintiff Villanueva’s and Plaintiff Tlatelpa’s claims under the 16 Family Medical Leave Act and the Washington Family Leave 17 Act, listed in the First Amended Complaint as Count Two; for 18 intentional and negligent infliction of emotional distress, listed 19 as Counts Six and Seven; and for breach of contract, listed as 20 Count Eight; and 1 B. Plaintiff Villanueva’s claim for failure to accommodate, listed 2 in the First Amended Complaint as Count Five. 3 2. Defendants’ Motion for Summary Judgment on Villanueva’s Claims, 4 ECF No. 120, and Defendants’ Motion for Summary Judgment on 5 Tlatelpa’s Claims, ECF No. 122, are GRANTED IN PART and 6 DENIED IN PART as described above. 7 3. Plaintiff Martin Villanueva’s Motion for Summary Judgment, ECF 8 No. 126, and Plaintiff Gabelo Tlatelpa’s Motion for Summary 9 Judgment, ECF No. 127, are DENIED. 10 4. Defendants’ Motion to Strike Plaintiffs’ Replies in Support of Their 11 Motions for Summary Judgment, ECF No. 160, is DENIED AS 12 MOOT. 13 5. Plaintiffs’ Motion for Leave Regarding Page Count, ECF No. 164, is 14 DENIED AS MOOT. 15 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 16 || provide copies to all counsel. 17 DATED this 18th day of May 2020. 18 (oO endae, “SALVADOR MENDGZA, JR. 19 United States District judge [20] ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS’