Calhoun v. Liberty Northwest Ins. Corp.

• Decision Date: 06 January 1992
• Docket Number: No. C91-357R.,C91-357R.
• Citation: 789 F. Supp. 1540
• Parties: Robbyn CALHOUN, Plaintiff, v. LIBERTY NORTHWEST INSURANCE CORPORATION, Defendant. Robbyn CALHOUN, Plaintiff, v. LIBERTY MUTUAL INSURANCE CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Washington

789 F. Supp. 1540

Robbyn CALHOUN, Plaintiff, v. LIBERTY NORTHWEST INSURANCE CORPORATION, Defendant.

Robbyn CALHOUN, Plaintiff, v. LIBERTY MUTUAL INSURANCE CORPORATION, Defendant.

No. C91-357R.

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

January 6, 1992.

COPYRIGHT MATERIAL OMITTED

Michael Holland, Seattle, Wash., for plaintiff.

David John Riewald, Jonathan T. Harnish, Corbett Gordon, Portland, Or., for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISPOSING OF OTHER PENDING MOTIONS

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on defendants' motions for summary judgment of dismissal and for sanctions and on plaintiff's motions to strike defendants' motion for summary judgment, for reconsideration of this court's November 26, 1991, Order granting Defendants' Motion to Compel and Awarding Costs, and for sanctions. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully informed, the court finds and rules as follows:

I. FACTUAL BACKGROUND

Defendants Liberty Northwest Insurance Corp. ("Liberty Northwest") and Liberty Mutual Insurance Corp. ("Liberty Mutual") employed plaintiff Robbyn Calhoun from March 7, 1978, until her discharge on November 18, 1987. Ms. Calhoun was hired as a claims representative by Liberty Mutual on March 7, 1978. In 1983, Liberty Northwest was incorporated, and in January 1985, Liberty Mutual transferred all of its operations in the Seattle area to Liberty Northwest. At that time, all Liberty Mutual employees, including plaintiff, became employees of Liberty Northwest. Affidavit of Maggie Haines, ¶ 3.

Plaintiff, an African American, suffered back and neck injuries in an automobile accident in November 1985 and began a long-term disability leave from her employment with Liberty Northwest. After being cleared to return to work by her doctor, plaintiff returned to Liberty Northwest in a claims representative position in January 1986. However, after complaining of severe headaches she began a second long-term disability leave on March 4, 1986. Plaintiff again was cleared by her doctor to return to work in March 1987. At that time, however, there were no claims representative openings in the Seattle office. Plaintiff was assigned to a file clerk position in the sales department, receiving the same level of pay she did as a claims representative. Plaintiff was dismissed eight months later for, according to defendants, inadequate job performance. See Defendants' Memorandum in Support of Motion for Summary Judgment, at 4.

On December 22, 1987, plaintiff filed a complaint with the Washington State Human Rights Commission ("WSHRC"), alleging that she was discharged based on her race, handicap and marital status (single mother). After an investigation into plaintiff's charges, the WSHRC concluded that there was no evidence of discrimination against Ms. Calhoun. Defendants' Memorandum in Support of Motion for Summary Judgment, Exhibit D.

On November 16, 1990, plaintiff filed separate suits in King County Superior Court against each defendant, alleging claims based on: (1) race and handicap discrimination in violation of RCW 49.60; (2) retaliation for opposing discrimination in violation of RCW 49.60; and (3) negligent infliction of emotional distress.¹ Defendants removed both actions to federal court, and this court consolidated the cases under this cause number.

The parties have encountered considerable discovery problems in this matter. This court twice has extended the discovery deadline to permit defendants to pursue additional discovery and twice has granted defendants' motions to compel and to award costs for bringing the motions.²

Alleging that plaintiff cannot establish the prima facie elements of any of her claims and that plaintiff cannot establish that defendants' asserted reason for firing Ms. Calhoun, inadequate performance, was mere pretext, defendants now move for summary judgment of dismissal of all claims against them. Defendants also move for sanctions for plaintiff's failure to adequately answer defendants' third set of interrogatories and for plaintiff's failure to appear on the date scheduled to complete her deposition. Plaintiff moves for reconsideration of that part of this court's November 26, 1991, order directing plaintiff to pay $500 in costs for defendants' motion to compel. Plaintiff also moves to strike defendants' motion for summary judgment and for sanctions based on what plaintiff alleges are violations of Fed.R.Civ.P. 11 by defendants in bringing their motion for summary judgment.

II. DISCUSSION

A. Plaintiff's Motion to Strike and For Sanctions

Plaintiff moves to strike defendants' motion for summary judgment and seeks sanctions against defendants for bringing a motion that could not have been signed by counsel in the good faith belief that the motion had a reasonable basis in fact as required by Fed.R.Civ.P. 11. Plaintiff argues that defendants' motion for summary judgment was brought for an improper purpose — to inundate the court and plaintiff with numerous pleadings, causing delay and unnecessarily increasing the cost of litigation. Plaintiff also argues that defendants miscite several cases in their memorandum in support of their motion for summary judgment. In addition, plaintiff argues that the affidavits submitted in support of defendants' motion for summary judgment could not express each affiant's individual views because of the similarity of some of the paragraphs in several of the affidavits. Plaintiff concludes that the court must strike the motion and impose sanctions in the form of attorneys' fees, costs and special damages.

Plaintiff's arguments are without merit. Defendants have neither inundated the court with frivolous motions nor miscited the law applicable to this motion. In the course of this matter, defendants have filed three substantive motions, four discovery-related motions and a motion to strike plaintiff's late-filed response to their motion for summary judgment. With the exception of the motion to strike and the third motion to extend the discovery deadline, the court granted some or all of defendants' requested relief.

Plaintiff's allegation that defendants repeatedly miscite cases in their motion for summary judgment focuses on cases cited by defendants as setting out the applicable standards of review and elements of a prima facie handicap, retaliation or race discrimination case under Washington law. As is discussed in more detail below, the court determines that defendants citation to the relevant case law is in accord with this court's reading of those cases and is well within the boundaries of Fed.R.Civ.P. 11.

Plaintiff also argues that defendants failed to cite contrary authority, particularly Huber v. Standard Insurance Co., 841 F.2d 980 (9th Cir.1988), in arguing for summary judgment on plaintiff's negligent infliction of emotional distress claim. Huber, however, involves a claim of intentional, not negligent, infliction of emotional distress. Id. at 986.

Finally, plaintiff's argument that the affidavits submitted in support of defendants' motion for summary judgment could not be based on the affiants' personal knowledge because of the similarity of some of the paragraphs is also without merit. As defendants explain, the affidavits were prepared by defendants' counsel with information supplied by the affiants. The affidavits were then reviewed for accuracy and signed by each affiant. Such a practice is neither unusual nor improper.

Plaintiff's motions to strike defendants' motion for summary judgment and for sanctions will be denied.

B. Defendants' Motion for Summary Judgment

In their motion for summary judgment, defendants seek dismissal of plaintiff's remaining four claims for relief: (1) employment discrimination based on plaintiff's race in violation of RCW 49.60; (2) employment discrimination based on the disability plaintiff sustained in her 1985 automobile accident in violation of RCW 49.60; (3) employment discrimination in the form of retaliation for plaintiff's complaints about unfair treatment in her file clerk position in violation of RCW 49.60; and (4) negligent infliction of emotional distress.

1. Standard of Review

A grant of summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the opposing party, that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-631 (9th Cir. 1987); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985). Summary judgment is not appropriate if "a result other than that proposed by the moving party is possible under the facts and applicable law." See Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983).

To defeat a motion for summary judgment, a nonmoving party must comply with the requirements of Fed.R.Civ.P. 56(e), which provides that

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

In two cases, the Supreme Court has clarified what the nonmoving party must do to withstand a motion for summary judgment. First, the Court noted that if the nonmoving party will bear the burden of proof at trial as to an element essential to its case, and that party fails to make a showing sufficient to establish a genuine dispute of fact as to that element, then summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Second, if...