Jones v. Rabanco, Ltd.
| Decision Date | 05 July 2006 |
| Docket Number | No. C03-3195P.,C03-3195P. |
| Citation | 439 F.Supp.2d 1149 |
| Court | U.S. District Court — Western District of Washington |
| Parties | Andre JONES, et al., Plaintiff(s), v. RABANCO, Ltd., et al., Defendant(s). |
Peter Moote, Freeland, WA, Darrell L. Cochran, James Walter Beck, Maria Lorena Gonzalez, Gordon Thomas Honeywell Malanca Peterson & Daheim, Tacoma, WA, for Plaintiffs.
Daniel P. Hurley, Trilby C.E. Robinson-Dorn, Mark Stephen Filipini, Patrick M. Madden, Thomas E. Kelly, Jr., Preston Gates & Ellis, Chris Farias, Stokes Lawrence, P.S., Seattle, WA, for Defendants.
Carl Passmore, Orting, WA, pro se.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THE CLAIMS OF PLAINTIFF LAWRENCE J. ORTIZ
This matter comes before the Court on Defendants' Motion for Summary Judgment Dismissing Claims of Plaintiff Lawrence J. Ortiz (Dkt. No. 379). Having considered Defendants' Motion, Plaintiff Ortiz' Opposition, Defendants' Reply and all other documents and papers pertinent to this motion, the Court GRANTS Summary Judgment as to Plaintiff Ortiz' Title VII race discrimination claim, Retaliation, Violation of Public Policy, Meal/Rest Break Violation, Negligent Supervision, Willful Withholding of Wages, Negligent Infliction of Emotional Distress, and Outrage claims and DENIES Summary Judgment as to. Plaintiff Ortiz' Racial and Age Discrimination claims under the Washington Law Against Discrimination, Hostile Work Place claims, and Overtime Wage Violation claims. Regarding the evidentiary issues raised by Defendants, the Court DENIES all of Defendants' Motions to Strike.
Plaintiff Lawrence Ortiz began working for U.S. Disposal, a subsidiary of Defendant Allied Waste, in April 2000. At the time, Mr. Ortiz was 63 years old. He had been hired by U.S. Disposal after Allied had won a large portion of the Seattle waste disposal contract, part of which had been held by General Disposal, Ortiz' former employer. Mr. Ortiz was hired at the rate of $60,000 per year. In addition, he was paid a $3,500 bonus and given four weeks paid vacation as part of his hiring agreement.
When Mr. Ortiz was hired, he was part of a team of people working to help U.S. Disposal implement new waste collection routes throughout the city of Seattle. In this capacity, he drew on his forty-years' experience in the Seattle waste industry to give suggestions about how the routes should be designed and other logistical matters. In addition, Mr. Ortiz oversaw the work of between 12-15 men as a foreman at U.S. Disposal. In this role, Mr. Ortiz worked to schedule the routes and make sure he had enough people to staff them, get drivers out on the road in the morning, follow up with customer complaints, and report to the scene of accidents or injuries to do preliminary investigation and take any injured employees to the hospital when necessary.
Beside these tasks, Mr. Ortiz also drove a small garbage truck for U.S. Disposal that was more maneuverable than the large garbage trucks used by most drivers. As part of his daily job duties, Mr. Ortiz was also was responsible for picking up missed garbage cans ("misses") and collecting garbage and yard waste from tight, hard-to-reach areas that could not be reached with most of the regular trucks. (Ortiz Decl. at 11). In general, Mr. Ortiz claims that he worked, on average, fifteen hours a day, starting around 5:30 a.m. and ending around eight or nine at night. (Id. at 2). He also states that he worked most Saturdays. (Id.).
Starting in May 2000, Mr. Ortiz claims that he experienced a racially hostile work environment at U.S. Disposal and that he felt discriminated against due to both his race and his age. He claims that he was aware of supervisors such as Gary Passmore and Dan Marsden using racial slurs in front of other employees (Id. at 7). He states that he heard Dan Marsden use the word "n—er" in reference to another employee: Additionally, Mr. Ortiz claims that he felt that minorities were unfairly targeted for discipline. Mr. Ortiz alleges that minority drivers were given disciplinary notices for minor incidents for which white drivers were not disciplined. Additionally, Ortiz alleges that minority workers were barred from the office while white employees were allowed to enter the office freely.
Beside the racially hostile environment that Mr. Ortiz alleges he experienced, Mr. Ortiz also claims that supervisors Gary Passmore and Dan Marsden made it clear to him that they thought he was too old for his job. Mr. Ortiz claims that Mr. Passmore asked him why he didn't retire and that both Passmore and Marsden made comments that Mr. Ortiz would be better able to do his job and would work faster if he were younger. (Id. at 15). Mr. Ortiz claims that after his termination in May 2001, he, Grady Torrey, and Leonard McDade were replaced by younger, white workers Mike Clawson, Gary Fox, and Brett Fenske. Allied points out that Mr. Ortiz never heard a racial slur during his employment at U.S. Disposal that was directed at him. Allied also claims that the fact that Mr. Ortiz was hired at age 63 disproves his allegation of age discrimination. Finally, Allied contends that Mr. Fenske and Mr. Clawson were not direct replacements for Mr. Ortiz and Mr. McDade and they, in fact, worked for Emerald Disposal, a separate division of Allied Waste in Seattle.
Mr. Ortiz asserts federal and state claims of disparate treatment racial discrimination, age discrimination and hostile work place discrimination, a claim of a public policy violation under Washington law for creation of a hostile work environment, a claim of unlawful retaliation, tort claims of intentional infliction of emotional distress (outrage) and negligent infliction of emotional distress, as well as negligent supervision and overtime wage violation claims. By this motion, Defendants now move to dismiss the entirety of Mr. Ortiz' case.
This matter is before the Court on Defendants' motion for summary judgment. Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). The underlying facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). However, once the moving party has met its initial burden, the burden shifts to the non-moving party to establish the existence of an issue of fact regarding an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To discharge this burden, the non-moving party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
Before ruling on the substance of Defendant's motion to dismiss Mr. Ortiz' claims the Court will first address the materials submitted by Plaintiff in support of his case that Defendants ask to be struck. Proceeding in this manner allows the Court to rule on the evidentiary value of the documents offered as evidence before considering them in the legal analysis of Mr. Ortiz' claims.
Defendants, in their Reply, cite several statements in Mr. Ortiz' declaration, which they claim are inconsistent with his deposition testimony and "self-serving." (Defs' Reply at 1). The Court will allow both deposition and declaration to serve as evidence, reducing the weight it gives to the affidavit where there are inconsistencies. Minor inconsistencies between deposition testimony and an affidavit will not provide a basis for excluding the affidavit. Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.1999).
Defendants also bring several statements in Mr. Ortiz' declaration to the Court's attention and claim that these statements should be struck because they are not based on the personal knowledge of Mr. Ortiz. (Defs' Reply at 2). The statements cited by Defendants reflect Mr. Ortiz' perceptions of events at U.S. Disposal and people with whom he worked and are properly classified as an exception to the hearsay rule under Fed.R.Evid. 803(3). These statements reflect Mr. Ortiz' perception of the working environment at U.S. Disposal and are germane to the Court's present task of taking the totality of circumstances into consideration to determine whether or not an issue of fact may exist for trial on Mr. Ortiz' allegations. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2nd Cir.1997).
Defendants also argue that the declaration of Plaintiffs' expert Susan Webb Bonnell should be excluded because she does not explicitly state why her testimony is useful to Court, she does not attach the comparator files upon which she relies to the declaration in violation of Fed.R.Civ.P. 56(e), she reaches improper legal conclusions, and she relies on insufficient factual data. (Defs' Reply at 3). Regarding Defendants' contention that the declaration is not helpful, Defendants cite a case where expert testimony by a...
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