Hotchkiss v. CSK Auto Inc.

• Decision Date: 22 January 2013
• Docket Number: No. 12–CV–0105–TOR.,12–CV–0105–TOR.
• Citation: 918 F.Supp.2d 1108
• Parties: David G. HOTCHKISS, Plaintiff, v. CSK AUTO INC. d/b/a O'Reilly Auto Parts, et al., Defendants.
• Court: U.S. District Court — District of Washington

918 F.Supp.2d 1108

David G. HOTCHKISS, Plaintiff,

v.CSK AUTO INC. d/b/a O'Reilly Auto Parts, et al., Defendants.

No. 12–CV–0105–TOR.

United States District Court,

E.D. Washington.

Jan. 22, 2013.

Patrick Joseph Kirby, Patrick J. Kirby PLLC, Spokane, WA, for Plaintiff.

James Michael Kalamon, Paine Hamblen Coffin Brooke & Miller, Spokane, WA, for Defendants.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

THOMAS O. RICE, District Judge.

BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. 69) and Plaintiff's Motion for Partial Summary Judgment (ECF No. 59). These motions were heard with oral argument on January 10, 2013. Plaintiff was represented by Patrick J. Kirby. Defendants were represented by James M. Kalamon. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

This is a sexual orientation harassment case. Plaintiff has sued his employer, O'Reilly Auto Parts, for creating a hostile work environment, wrongfully terminating his employment, and negligently supervising and retaining the employees responsible for harassing him. Plaintiff has also sued three of his former co-workers in their individual capacities for sexual orientation discrimination, intentional infliction of emotional distress, and common law assault. Plaintiff further seeks to recover wages and sales commissions allegedly owed to him by O'Reilly.

Defendants have moved for summary judgment on all claims. Plaintiff has filed a cross-motion for summary judgment on his sixth cause of action for retaliation during the re-hiring process. As discussed below, the Court will grant summary judgment for Defendants on Plaintiff's claims for negligent supervision and retention, intentional infliction of emotional distress, assault, and unpaid sales commissions. The Court will also dismiss Plaintiff's claims against Defendants Lewis, Huffman, and Realing under Title VII and the ADA. All other claims will proceed to trial.

FACTS

Plaintiff David Hotchkiss (“Hotchkiss”) is a Retail Service Specialist (“RSS”) employed by Defendant O'Reilly Auto Parts (“O'Reilly”). Hotchkiss began his career with O'Reilly in 2004. From 2004 to 2006, and again from 2009 to the summer of 2010, Hotchkiss was assigned to O'Reilly retail stores in the Seattle, Washington area. In July 2010, Hotchkiss moved across the state to Spokane and began working at an O'Reilly store in Spokane Valley.

Shortly after Hotchkiss began working in Spokane Valley, one of his subordinates, Kevin Hulme (“Hulme”), began making disparaging comments about his sexual orientation. On one occasion, Hulme called Hotchkiss at work to inquire about his work schedule. At some point during the call, Hulme told Hotchkiss that he “sounded like a queer on the phone.” On at least one other occasion, Hulme called Hotchkiss a “queer” and a “faggot” while the two worked together in the store. On yet another occasion, after refusing a work assignment from Hotchkiss, Hulme stated, “What are you going to do about it, faggot?”

Hotchkiss reported these comments to his supervisor, the Store Manager, Defendant Cecil Lewis (“Lewis”) on Friday, September 24, 2010. The details of the conversation between Hotchkiss and Lewis are disputed. Hotchkiss claims to have told Lewis that he was a homosexual, that he was being called a “queer” and a “faggot” at work, that he found these comments offensive, and that he wanted Lewis to address the problem. O'Reilly asserts that the conversation was more generic. Under its version of events, Hotchkiss simply told Lewis that the comments made him uncomfortable and that he wanted them to stop. However, both parties agree that the conversation ended with Lewis informing Hotchkiss that he would “take care of it” or that he would “handle it.”

Seven days later, on October 1, 2010, Hotchkiss was assigned to work a shift with Defendant Don Realing (“Realing”). On that date, Realing was serving as the Acting Store Manager in Lewis's absence. At some point that morning, Hotchkiss informed Realing that one of his “friends” was being sexually harassed by a coworker. Hotchkiss also sought Realing's advice about how his “friend” should handle the situation. It is unclear what advice, if any, Realing actually gave. However, Plaintiff alleges that toward the end of the conversation, Realing stated, “All faggots should be shot.” Realing denies having made this statement at all.

Later that day, apparently fearful for his physical safety, Hotchkiss walked off the job. Three days later, on October 4, 2010, Hotchkiss called Lewis to explain his reasons for quitting. Toward the end of this conversation, Hotchkiss asked Lewis whether he could be transferred back to his former position at the O'Reilly store in Seattle. Lewis informed Hotchkiss that he would have to “reapply” for the position since he had walked off the job.

At some point after speaking with Lewis, Hotchkiss contacted his former manager, Dave Savelle (“Savelle”) about returning to work for O'Reilly in Seattle. Savelle informed Hotchkiss that he would be pleased to have Hotchkiss return to work for him, but that Hotchkiss would need to contact O'Reilly's human resources department to make the necessary arrangements. Later, Hotchkiss called Savelle's supervisor, Seattle District Manager Bob Knight (“Knight”), to inquire about returning to an O'Reilly store in Seattle. Knight likewise responded that he would be pleased to rehire Hotchkiss, but that Hotchkiss would need to contact O'Reilly's Western Division Human Resources Manager, Dave Vanden Bos.

What occurred next is disputed. Hotchkiss asserts that he made several telephone calls to Alexis Brown (“Brown”), a member of O'Reilly's human resources department, asking to be rehired. According to Hotchkiss, Brown was generally non-committal and informed Hotchkiss that he would have to “reapply” for a position in Seattle. Hotchkiss further asserts that Brown eventually stopped returning his calls. Frustrated by O'Reilly's handling of the situation, Hotchkiss filed a formal complaint with the Washington State Human Rights Commission (“WSHRC”) on December 27, 2010.

According to O'Reilly, Hotchkiss's interactions with its human resources department were much less extensive. By its account, Hotchkiss contacted Brown about transferring to a store in Seattle, at which time Brown informed Hotchkiss that he would have to formally reapply for any position he sought. Believing that he “shouldn't have to” reapply, Hotchkiss instead elected to file a formal WSHRC complaint.

Following the filing of the WSHRC complaint, the parties attempted to resolve the dispute. This process culminated in Hotchkiss sending O'Reilly's human resources department a letter dated August 23, 2012 requesting to be rehired at a store in the Seattle area. Shortly after receiving this letter, an O'Reilly representative contacted Hotchkiss and walked him through the process of submitting an online application. Hotchkiss was subsequently extended an offer and began working in a Seattle-area store on October 17, 2012.

DISCUSSION

The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505.

For purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. 2505. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a motion for summary judgment, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Finally, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir.2002).

A. Hostile Work Environment Claim

Hotchkiss has asserted a hostile work environment claim under the Washington Law Against Discrimination (“WLAD”), RCW Chapter 49.60. To establish a prima facie hostile work environment claim, a plaintiff must demonstrate (1) unwelcome harassment; (2) that is attributable to the plaintiff's membership in a protected class; (3) which affected the terms and conditions of the plaintiff's employment; and (4) which can be imputed to the plaintiff's employer. Loeffelholz v. Univ. of Wash., 175 Wash.2d 264, 265, 285 P.3d 854 (2012). In the instant motion, O'Reilly asserts that Hotchkiss cannot satisfy the third and fourth elements of his claim. Each of these elements is discussed in turn below.

1. Altered Conditions of Employment

To satisfy the third element of a hostile work environment claim, a plaintiff must show that the harassment was sufficiently severe or pervasive to change the conditions of his employment and create an abusive working environment. Loeffelholz, 175 Wash.2d at 265, 285 P.3d 854. This inquiry focuses on “the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Washington v. Boeing Co., 105 Wash.App. 1, 10, 19 P.3d 1041 (2000...