Washington Cases June 09, 2021: Quinn v. City of Vancouver

Case Description

REPORT AND RECOMMENDATION

RICHARD CREATURA CHIEF UNITED STATES MAGISTRATE JUDGE

The District Court has referred the parties' pending motions for summary judgment (Dkts. 260, 262, 266, 268) to the undersigned Magistrate Judge. See Dkt.

Plaintiff, an attorney, initiated this action in November 2017 against her then employer, defendant City of Vancouver (“defendant City”), and her supervisors, defendants Eric Holmes, Bronson Potter, and Jonathan Young. In June 2019, after filing suit, defendant City terminated plaintiff's employment. While still employed, plaintiff claims that she was the victim of gender discrimination, harassment, and retaliation. Plaintiff also claims that defendant City wrongfully terminated her employment, among other claims.

Plaintiff and defendants now seek summary judgment pursuant to Fed.R.Civ.P. 56 as to plaintiff's claims raised in her second amended complaint (Dkt. 186). See Dkts. 260, 262, 266, 268. The parties have filed their respective response briefs, and the matter is ripe for review.

Specifically, defendant City seeks summary judgment as to plaintiff's claims that defendant City deprived her of a liberty interest in violation of the Fourteenth Amendment (Count 7) and that plaintiff was wrongfully discharged in violation of public policy (Count 8). See Dkt. 260. The Court agrees that plaintiff's claim under the Fourteenth Amendment (Count 7) should be dismissed with prejudice. Plaintiff has failed to come forward with required evidence that she requested a name clearing hearing in connection with the termination of her employment. Therefore, having failed to proffer evidence that she requested any such hearing, plaintiff has failed to show that defendant City violated her due process rights under the Fourteenth Amendment. However, the Court finds that defendant City has failed to show that it is entitled to summary judgment as to plaintiff's claim of wrongful discharge in violation of public policy (Count 8). Although defendant City argues that federal and state statutory remedies are exclusive, and thus, bar plaintiff's claim of wrongful discharge, the Court finds that plaintiff is not precluded from pursuing possible recovery under her state common law claim of wrongful discharge. Accordingly, the Court recommends that defendant City's motion for summary judgment be granted in part and denied in part.

Plaintiff also seeks summary judgment as to her claims of retaliation under state and federal law (Counts 3 and 4) against defendant City. See Dkt. 262. Plaintiff argues that she is entitled to summary judgment because defendant City admitted to terminating plaintiff's employment in retaliation for engaging in protected activities. However, the Court finds that defendant City has come forward with sufficient evidence that creates a genuine issue of material fact as to whether plaintiff's employment was terminated for legitimate, non-retaliatory reasons. Therefore, the Court recommends denying plaintiff's motion for summary judgment.

Defendant Young also seeks summary judgment as to plaintiff's claim that he unlawfully retaliated against plaintiff in violation of state law (Count 4) when he placed plaintiff on paid administrative leave. See Dkt. 266. Defendant Potter also joins defendant Young's motion and seeks dismissal of plaintiff's claim of retaliation against him. See Dkt. 268, at 2. Defendants Potter and Young argue that plaintiff has failed to show that their reasons for placing plaintiff on leave-in order to investigate plaintiff's allegedly unprofessional behavior-were pretext for retaliation. However, the Court finds that plaintiff has come forward with sufficient evidence, when viewed in the light most favorable to her, that creates a genuine issue of material fact as to whether defendants Young and Potter's reasons for placing plaintiff on leave were false and/or inconsistent, and therefore, pretextual or substantially motivated by retaliation. Therefore, the Court recommends denying defendants Young and Potter's motions for summary judgment as to plaintiff's claim of retaliation.

Defendants Young and Potter also request that the Court dismiss plaintiff's request for punitive damages against them because such relief is not permitted under state law. See Dkt. 266, at 23. The Court agrees. The Supreme Court of Washington State has unequivocally stated that punitive damages are not available under Washington's antidiscrimination law. Because plaintiff raises only state law claims against defendants Young and Potter, the Court recommends dismissing plaintiff's requested punitive damages against them.

Defendant Potter also seeks summary judgment as to plaintiff's claim that he unlawfully discriminated against plaintiff by failing to promote her based on her gender (Count 2). See Dkt. 268. Defendant Potter argues that plaintiff is unable to show that his legitimate reason for selecting a male candidate (defendant Young) over plaintiff for a promotion was pretext for gender discrimination or otherwise substantially motivated by plaintiff's gender. However, the Court finds that plaintiff has come forward with evidence, when viewed in the light most favorable to her, that creates a material issue of fact as to whether defendant Potter was improperly motivated by plaintiff's gender in failing to promote her. Therefore, the Court recommends denying defendant Potter's motion for summary judgment.

Finally, defendant Holmes joins in defendant Potter's motion for summary judgment (Dkt. 268) and requests that the Court dismiss plaintiff's claim of gender discrimination against him (Count 2). See Dkt. 270. Defendant Holmes argues that if plaintiff's claim against defendant Potter fails, her claim against defendant Holmes must also fail. As the Court recommends that defendant Potter's motion for summary judgment should be denied, the Court recommends that defendant Holmes' request for dismissal of plaintiff's claim of gender discrimination should also be denied.

Accordingly, the Court recommends that the parties' motions for summary judgment (Dkts. 260, 262, 266, 268, 270) be granted in part and denied in part, as discussed below.

FACTUAL AND PROCECURAL BACKGROUND

Defendant City hired plaintiff as an Assistant City Attorney in April 1993. Dkt. 186, at 4. During the relevant period from December 2013 to June 2019, defendants Holmes, Potter, and Young were plaintiff's supervisors during her employment with defendant City. See Id. at 3.

Plaintiff alleges that in December 2013, she learned that defendant Potter made discriminatory and demeaning comments about another female employee, referring to the employee as “the one with the big tits.” Dkt. 186, at 4; see also Dkt. 103-6, at 12 (defendant Potter's testimony confirming his statement). Plaintiff alleges that she reported her concerns regarding these comments to defendants Young and Potter, who thereafter allegedly “ostracized” plaintiff. Id.

In October 2014, plaintiff applied for a promotion as the Chief Assistant City Attorney. See Dkt. 186, at 4. Plaintiff was the only female candidate interviewed for the position. See Id. Plaintiff further alleges that she participated in two separate interview panels for the position and that one panel preferred plaintiff, while the second all male panel did not. See Id. Plaintiff further alleges that defendant Potter made sexist and derogatory comments about plaintiff to the second, all male panel and discouraged that panel from selecting plaintiff for the promotion. See Id. Defendant Potter disputes that he made any sexist or derogatory comments about plaintiff to the second interview panel. See Dkt. 268, at 5-6.

Following the interview process, plaintiff alleges that defendant Potter “disregarded” defendant City's appointment policy and procedures and selected defendant Young for the promotion, even though defendant Young had not applied for the position. See Id. Defendant Potter argues that his decision to promote defendant Young over plaintiff was consistent with the City's recruitment guidelines. See Dkt. 268, at 9-10.

In October 2015, plaintiff reported other sexist and derogatory comments made by defendant Potter regarding other female employees to defendant Young and to City Human Resources. See Dkt. 186, at 5; see also Dkt. 297-3, at 8-9 (reflecting defendant Potter's 2015 comments calling another female attorney a “bitch, ” and offering to “throw in a wig” as part of a severance package to another female employee undergoing cancer treatment). In November 2015, defendant City procured outside counsel to investigate plaintiff's complaint and other claims of gender discrimination. See Dkts. 186, at 5. Plaintiff alleges that on November 12, 2015, she was scheduled to participate in the discrimination investigation; however, defendants Young and Potter prevented her from doing so. See Id. Instead, plaintiff alleges that defendants Young and Potter “pulled [plaintiff] into a disciplinary meeting, ” accused her of misconduct, and placed her on administrative leave. See Id. Plaintiff further alleges that defendant Young told plaintiff that she was the subject of an investigation, but he refused to tell her the nature or subject of the investigation. See Id. Plaintiff claims that the decision to place her on leave was in retaliation for having complained about defendant Potter's discriminatory comments and defendants' other discriminatory conduct. See Id. at 10. Defendants Young and Potter dispute that their decision to place plaintiff on leave was motivated by retaliation. See Dkt. 266.

After being placed on administrative leave, later in November 2015, plaintiff filed an internal complaint of discrimination, retaliation, and hostile work environment with defendant City's Human Resources, which was investigated. See Dkt. 186, at 6; see also Dkt. 297-3 (executive summary report of the investigation). While still on leave, plaintiff alleges that despite repeated requests, defendant City failed to provide plaintiff with reasons for her being placed on leave. See Dkt. 186, at 6. Plaintiff alleges that upon her return, four months after being placed on leave, defendants Potter and Young reassigned some of her job duties and that defendant City also delayed her merit pay increase. See Id. Plaintiff further alleges that six months after her return from administrative leave, in November 2016, defendants Holmes, Potter, and Young again reassigned her job duties. See Id. at 7.

In September 2017, plaintiff submitted a whistleblower complaint to defendant City after learning about other female employees' claims of gender discrimination and hostile work environment against defendant City. See Dkt. 186, at 7; see also Dkt. 261-5 (plaintiff's 2017 whistleblower complaint). Plaintiff alleges that her complaint was never addressed. See id.

On November 21, 2017, plaintiff initiated this lawsuit against defendants. See Dkt. 1. After filing her complaint, and for some time thereafter, plaintiff continued to be employed by and to represent defendant City. In June 2019, following discovery, defendants filed motions for summary judgment (Dkts. 100, 102, 107), which the District Court granted in part and denied in part in August 2019. See Dkt. 170; see also Dkt. 181 (denying defendants Potter and Young's motions for reconsideration of Dkt. 170).

On June 26, 2019, defendant City, through defendant Holmes, terminated plaintiff's employment. Plaintiff alleges that her termination was “in retaliation for her whistleblower complaints and her opposition to [the] City's discriminatory policies and conduct.” Dkt. 186, at 8. Plaintiff alleges that defendant City falsely accused plaintiff of unethical conduct in connection with her termination. See Id. at 12. Defendant City disputes that it terminated plaintiff's employment in retaliation for plaintiff's complaints. See Dkt. 289, at 6. Rather, defendant City asserts that plaintiff's employment was terminated because she allegedly “repeatedly violated mandatory fiduciary obligations owed to the City, ” plaintiff's former client. See id.

After her employment was terminated, plaintiff filed the now operative second amended complaint in October 2019. See Dkt. 186. Additional discovery followed. As relevant here, plaintiff asserts that defendants discriminated against her based on her gender in violation of Washington State's Law Against Discrimination (“WLAD”), RCW 49.60.101, .180 and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2. See Id. at 8-10. Plaintiff also claims that defendants retaliated against her for engaging in protected activity in violation of WLAD, RCW 49.60.180, and Title VII, 42 U.SC. § 2000e-3. See Id. at 10-11. Additionally, plaintiff claims that defendant City deprived her of her protected liberty interest in her good name and reputation in violation of the Fourteenth Amendment and wrongfully terminated her employment in violation of public policy. See Id. at 12-13.

Plaintiff and defendants City, Young, and Potter now seek summary judgment as to plaintiff's claims of discrimination, retaliation, deprivation of a liberty interest, and wrongful discharge. See Dkts. 260, 262, 266, 268. Defendant Holmes also joins defendant Potter's motion for summary judgment. See Dkt. 270. The parties' motions have been fully briefed, and the matter is now ripe for decision. See Dkts. 260, 261, 262, 263, 266, 267, 268, 269, 270, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303.

LEGAL STANDARD

Summary judgment is appropriate if a moving party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The materiality of a given fact is determined by the required elements of the substantive law under which the claims are brought. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Where there is a complete failure of proof concerning an essential element of the nonmoving party's case on which the nonmoving party has the burden of proof, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Anderson , 477 U.S. at 254 (“the judge must view the evidence presented through the prism of the substantive evidentiary burden”).

When presented with a motion for summary judgment, the court shall review the pleadings and evidence in the light most favorable to the nonmoving party. Anderson , 477 U.S. at 255. Weighing of evidence and drawing legitimate inferences from facts are jury functions and not the function of the court. See United Steel Workers of Am. v. Phelps Dodge Corps. , 865 F.2d 1539, 1542 (9th Cir. 1989). If the material evidence is in genuine dispute, a motion for summary judgment dismissal should be denied.

DISCUSSION

The Court will address each motion for summary judgment in the order filed.

I. Defendant City's Partial Motion for Summary Judgment

In its motion for partial summary judgment, defendant City seeks dismissal of plaintiff's claim under 42 U.S.C. § 1983 that defendant City allegedly deprived plaintiff of her protected liberty interest in her good name and reputation in violation of the Fourteenth Amendment (Count 7). See Dkt. 260, at 1, 13-24. Defendant City also seeks dismissal of plaintiff's claim that defendant City allegedly terminated her employment in violation of public policy (Count 8). See Id. at 1, 3-13. As discussed below, the Court recommends granting in part and denying in part defendant City's motion for summary judgment.

A. Count 7 - Deprivation of Liberty Interest

Plaintiff alleges that she has a constitutionally protected liberty interest in her good name and reputation for honesty. See Dkt. 186, at 12. Plaintiff alleges that defendant City deprived her of this protected liberty interest by falsely accusing her of unethical conduct in connection with the termination of her employment with the City. See Id. at 8, 12. Plaintiff further alleges that defendant City, through its agents, repeated these false accusations to the City's staff. See Id. at 8. Plaintiff alleges that she challenged the validity of defendant City's accusations and that defendant City failed to provide plaintiff a hearing to determine the legitimacy of the accusations. See Id. at 8, 9. As a result, plaintiff claims that defendant City harmed her professional reputation and denied plaintiff due process of law in violation of the Fourteenth Amendment. See Id. at 12.

Defendant City argues that plaintiff's claim fails as a matter of law because (1) defendant City's statements regarding plaintiff's alleged ethical misconduct are true, and therefore, plaintiff cannot state a prima facie claim; and (2) plaintiff was not entitled to a name clearing hearing. See Dkt. 260, at 13-24. In support of its motion, defendant City provides copies of policy and personnel documents, excerpts from plaintiff's depositions, and other evidence purporting to show the truth of plaintiff's alleged unethical conduct. See Dkt. 261.

In response, plaintiff argues that there is at least a material dispute as to whether defendant City denied her a name-clearing hearing in violation of the Fourteenth Amendment. See Dkt. 294, at 13-15. Plaintiff further argues that defendant City has failed to address the actual elements of plaintiff's claim and that there are no undisputed issues of fact in defendant City's favor. See Id. at 15-16.

Additionally, in support of defendant City's motion, defendant Young argues that plaintiff's claim is barred because plaintiff never requested a name-clearing hearing. See Dkt. 266, at 22. Plaintiff had the opportunity to respond to defendant Young's argument, but she declined to do so. See Dkt. 296.

“The Fourteenth Amendment protects against deprivation of liberty and property interests without due process of law.” Kramer v. Cullinan, 878 F.3d 1156, 1162 (9th Cir. 2018) (citation omitted). “A person's liberty interest is implicated if the government levels a charge against [her] that impairs [her] reputation for honesty or morality.” Id. (citation omitted). “If the government, in the course of terminating a person's employment, publicly discloses stigmatizing information, the employee is entitled to a ‘name-clearing hearing.'” Id. (quoting Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004)); see also Bathke v. City of Ocean Shores, No. C19-5338 BHS, 2019 WL 4917064, at *6 (W.D. Wash. Oct. 4, 2019).

To demonstrate that plaintiff has a protected liberty interest at stake, a plaintiff must demonstrate that: ‘(1) the accuracy of the charge is contested, (2) there [was] some public disclosure of the charge, and (3) the charge [was] made in connection with the termination of employment.'” Kramer , 878 F.3d at 1162 (quoting Guzman c. Shewry, 552 F.3d 941, 955 (9th Cir. 2009)). In order to pursue a due process claim, plaintiff must also demonstrate that the defendant's statements were substantially false. See Campanelli v. Bockrath, 100 F.3d 1476, 1484 (9th Cir. 1996) (citation omitted). Furthermore, “a plaintiff who fails to request a name clearing hearing is precluded from asserting a substantive due process claim on an injury to reputation theory.” Reiber v. City of Pullman, 918 F.Supp.2d 1091, 1102 (E.D. Wash. 2013) (citing Quinn v. Shirey, 293 F.3d 315, 322 (6th Cir. 2002); Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993) ; Winskowski v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006)); see also Humann v. City of Edmonds, No. C13-101 MJP, 2014 WL 4161974, at *10 (W.D. Wash. Aug. 19, 2014) (acknowledging that district courts in the Ninth Circuit have imposed the requirement that a plaintiff must show that she requested a name-clearing hearing in order to pursue a due process claim).

Here, the law is clear that plaintiff would have been entitled to a name-clearing hearing. See Kramer , 878 F.3d at 1162. Nonetheless, plaintiff has not alleged, nor has she offered any evidence that she requested any such hearing in connection with defendant City's accusations of plaintiff's unethical conduct and the termination of her employment. See Dkts. 149-1, at 6; 186, at 8, 12 (stating only that she did not receive a name-clearing hearing). Even viewing the facts in the light most favorable to plaintiff, the Court finds that plaintiff has failed to demonstrate a material issue of fact that she requested any name-clearing hearing. Therefore, plaintiff has failed to show that defendant City violated her Fourteenth Amendment substantive due process rights, and thus, defendant City is entitled to summary judgment as a matter of law. See Reiber , 918 F.Supp. at 1102; see also Quinn , 293 F.3d at 322 (“[B]efore asserting [a] liberty interest claim, [p]laintiff [is] required to show that [s]he requested a name-clearing hearing and was denied that opportunity.”).

Accordingly, the Court recommends granting summary judgment for defendant City as to plaintiff's claim of deprivation of a liberty interest in violation of the Fourteenth Amendment.

B. Count 8 - Wrongful Discharge in Violation of Public Policy

Plaintiff alleges that defendant City terminated her employment without justification and in retaliation for filing a whistleblower complaint and for opposing the City's discriminatory policies and conduct. Dkt. 186, at 8, 12. Plaintiff further alleges that defendant City terminated her employment in order to discourage her from reporting and opposing gender-based discrimination, hostile work environment, and retaliation allegedly committed by defendant City's employees and officials. See Id. at 12. Plaintiff claims that defendant City's wrongful termination of her employment violated public policy. See id.

Defendant City argues that plaintiff's claim of wrongful discharge in violation of public policy fails as a matter of law because Title VII and WLAD are exclusive statutory remedies barring her state common law claims and because Title VII and WLAD offer a broader range of remedies than plaintiff's claim of wrongful discharge. See Dkt. 260, at 6-10.

In response, plaintiff argues that Title VII and WLAD are not exclusive statutory remedies that would bar her claim of wrongful discharge. See Dkt. 294, at 6. Plaintiff further argues that it is undisputed that she engaged in protected activity and that there are material issues of fact as to defendant City's actual reason for terminating plaintiff's employment. See Id. at 7-13.

Generally, employment in Washington State may be terminated at will by either employee or employer. See Norvell v. BNSF Ry. Co., No. C17-5683 BHS, 2018 WL 263312, at *3 (W.D. Wash. Jan. 2, 2018); see also Ford v. Trendwest Resorts, Inc., 43 P.3d 1223, 1226 (Wash. 2002) (“In Washington, the general rule is that an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability.” (citation omitted)). However, “[o]ne narrow exception to the general at-will employment rule prohibits an employer from discharging an employee ‘when the termination would frustrate a clear manifestation of public policy.'” Norvell , 2018 WL 263312, at *3 (quoting Roe v. TeleTech Customer Cage Mgmt. (Colorado), 257 P.3d 586, 595 (Wash. 2011)).

To establish the common law cause of action for wrongful discharge in violation of public policy, plaintiff must show: (1) the existence of a clear public policy; (2) that discouraging the conduct in which the plaintiff engaged would jeopardize the public policy; (3) that the public-policy-linked conduct caused the dismissal from employment; and (4) that defendants are unable to offer an overriding justification for the dismissal. Roe , 257 P.3d at 595 (citation omitted). A claim of wrongful discharge in violation of public policy has generally arisen in four situations: “(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.” Id. (internal quotation omitted).

As relevant here, regarding the second element, “plaintiffs must show they engaged in particular conduct and the conduct directly relates to the public policy or was necessary for the effective enforcement of the public policy.” Rose v. Anderson Hay & Grain Co., 358 P.3d 1139, 1143 (Wash. 2015) (emphasis in original) (quoting Gardner v. Loomis Armored Inc ., 913 P.3d 377, 384 (Wash. 1996)). However, a plaintiff need not establish the inadequacy of alternative statutory remedies in asserting a claim of wrongful discharge in violation of public policy. See Id. at 1145-46 (explicitly disavowing and overruling case law holding otherwise). Rather, in determining whether a wrongful discharge claim exists, “[c]ourts [] must consider whether a statutory remedy is intended to be exclusive.” Id. at 1146. “[A]bsent clear legislative intent to modify the common law, its remedies are generally not foreclosed merely because other avenues for relief exist.” Id. at 1145.

Here, defendant City does not factually dispute that plaintiff engaged in protected activity embodied by public policy in Title VII and WLAD. See Dkt. 260, at 6. While defendant City denies plaintiff's allegations, it does not claim that plaintiff has failed to produce evidence sufficient to support plaintiff's claim of wrongful discharge in violation of public policy. See Id. Rather, defendant City argues that Title VII and WLAD are exclusive statutory remedies that bar plaintiff's common law claim. See Dkt. 260, at 6-10. As discussed below, defendant City's argument is unpersuasive.

“Common law remedies should be preempted by statutory law only where the legislature either implicitly or explicitly expresses an intent to do so.” Rose , 358 P.3d at 1146. Under WLAD, “[a]ny person deeming [] herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or [Title VII] .” RCW 49.60.030(2) (emp hasis added). Further, Title VII explicitly states, “[n]othing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided in any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.” 42 U.S.C. § 2000e-7.

The plain language of WLAD and Title VII do not express any intent to preempt plaintiff's common law claim for wrongful discharge in violation of public policy. Indeed, the Ninth Circuit has previously stated that in Title VII, “Congress has indicated that state laws will be pre-empted only if they actually conflict with federal law.” Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 710 (9th Cir. 1997) ; see also Davis v. Jobs For Progress, Inc., 427 F.Supp. 479, 483 (D. Ariz. 1976) (stating that Title VII does no t preempt state regulation nor the imposition of state remedies for violations arising out of the same circumstances). And WLAD explicitly provides for any other appropriate remedy available under Title VII. See RCW 49.60.030(2).

Further, defendant City has cited no legal authority holding that Title VII and WLAD are exclusive statutory remedies that bar plaintiff's claim of wrongful discharge in this case. Indeed, recent cases in this district have permitted plaintiffs to simultaneously proceed on claims under Title VII, WLAD, and wrongful discharge in violation of public policy. See, e.g. , Simmons v. Safeway, Inc., 388 F.Supp.3d 1305, 1313 (W.D. Wash. 2019), rev'd and remanded on other grounds, 820 Fed.Appx. 579 (9th Cir. 2020) (not addressing exclusivity, but allowing plaintiff to proceed with Title VII, WLAD, and wrongful discharge claims based on plaintiff's complaints of employer misconduct); Alexander v. United States Gypsum Co., No. C18-0810RSL, 2018 WL 4931625, at *3 (W.D. Wash. Oct. 11, 2018) (finding that WLAD and wrongful discharge claims based on WLAD public policy are not duplicative and that a plaintiff may proceed on both claims).

Additionally, although defendant City asserts that Title VII and WLAD offer an alternative and broader range of remedies beyond those available under common law (Dkt. 260, at 6-7), this does not preclude plaintiff's claim of wrongful discharge in violation of public policy. See Rose , 258 F.3d at 1145 (explicitly disavowing any requirement that a plaintiff must demonstrate the inadequacy of alternative remedies and stating that “remedies are generally not foreclosed merely because other avenues for relief exist.”). Finally, although defendant City argues that the doctrine of employment at-will further supports its motion for summary judgment (Dkt. 260, at 11-13), this argument appears to ignore the purpose of plaintiff's claim. The common law claim of wrongful discharge in violation of public policy is an “exception to the general at-will employment rule.” Norvell , 2018 WL 263312, at *3.

Therefore, finding that WLAD and Title VII do not preclude plaintiff's possible recovery under a claim of wrongful discharge in violation of public policy, the Court concludes that plaintiff's claim survives summary judgment. As defendant City makes no additional arguments challenging the legitimacy of this claim ( see Dkt. 260, at 3-13), defendant City has failed to show that it is entitled to summary judgment as a matter of law.

Accordingly, the Court recommends denying defendant City's motion for summary judgment dismissal of plaintiff's claim for wrongful discharge in violation of public policy.

II. Plaintiff's Partial Motion for Summary Judgment

Plaintiff seeks summary judgment as to her claims against defendant City based on defendant City's alleged retaliation against plaintiff in violation of Title VII (Count 3) and in violation of WLAD (Count 4). See Dkt. 262. In her motion, plaintiff argues that she is entitled to summary judgment as to her claims of retaliation against defendant City because there is no question of material fact that defendant City terminated her employment in retaliation for her engagement in protected activity. See Dkt. 262, at 6-12. In support of her motion, plaintiff relies on defendant City's responses to interrogatories and defendant Holmes' deposition testimony. See Dkts. 263-2, 263-3.

In response, defendant City argues that plaintiff's motion should be denied because she never asserted claims of retaliation under Title VII and WLAD based on defendant City's termination of plaintiff's employment. See Dkt. 289, at 2-5. Defendant City also argues that even if plaintiff had properly asserted claims of retaliatory discharge under Title VII and WLAD, she has failed to demonstrate that she in entitled to summary judgment on those claims. See Id. at 6-20. In support of its response, defendant City relies on pleadings and court orders filed in this case, declarations, and other evidence of record. See Dkts. 153, 171, 263-3, 290, 291.

Defendant Holmes also filed a response in opposition to plaintiff's motion for summary judgment. See Dkt. 292. Defendant Holmes also argues that plaintiff's motion should be denied because she failed to assert any claims of retaliatory discharge under Title VII or WLAD in her complaint. See Id. at 5-9. Defendant Holmes further argues that any claim for retaliatory discharge against him under Title VII fails because Title VII does not permit liability against individuals. See Id. at 9.

The Court will first address defendant Holmes' arguments in opposition to plaintiff's motion for summary judgment.

A. Claims Against Defendant Holmes

As an initial matter, plaintiff moves to strike defendant Holmes' response and supporting declaration (Dkts. 292, 293) on the grounds that the response is overlength pursuant to Local Civil Rule 7. See Dkt. 302, at 9. Plaintiff also argues that defendant Holmes' response “takes aim at a phantom claim” that plaintiff has not asserted against him. Id. at 9-10.

Although the Court is not persuaded by plaintiff's argument that defendant Holmes' responsive brief “must” be read as an overlength extension of defendant City's response, the Court agrees that plaintiff asserts a claim of retaliation under Title VII only against defendant City-not defendant Holmes. See Dkt. 186, at 10; see also Dkt. 262 (seeking summary judgment against defendant City only). Therefore, the Court need not address the merits of defendant Holmes' argument that any Title VII claim against him must fail a matter of law- there is no such claim, so the Court need not dismiss it.

Accordingly, the Court grants plaintiff's motion to strike defendant Holmes' responsive brief as to this issue.

B. Claims Against Defendant City

In her complaint, plaintiff alleges that she engaged in protected activity by reporting and opposing defendant City's gender-based discriminatory practices. Dkt. 186, at 10. Plaintiff further alleges that in June 2019, defendant City terminated her employment in retaliation for her whistleblower complaints and her opposition to defendant City's discriminatory policies and conduct. Id. at 8. Plaintiff claims defendant City retaliated against her in violation Title VII, 42 U.S.C. § 2000e-3, by placing her on involuntary leave, publishing stigmatizing statement about plaintiff to colleagues, delaying investigation of plaintiff's workplace complaints, delaying plaintiff's merit pay increase, and altering plaintiff's regular workload. See Id. at 10. Plaintiff also claims that defendant City's collective actions constitute retaliation under WLAD, RCW 49.60.180. Id. at 11.

Plaintiff argues that she is entitled to summary judgment as a matter of law as to her claims of retaliation against defendant City under Title VII and WLAD because defendant City admitted that plaintiff's employment was terminated in retaliation for her protected activities. See Dkt. 262, at 1, 6-12. Defendant City opposes plaintiff's motion, arguing that (1) plaintiff seeks summary judgment on claims that she never administratively exhausted or asserted in her complaint, and (2) there are material issues of fact regarding the reasons for plaintiff's termination of employment that preclude summary judgment. See Dkt. 289, at 2-20.

The Court need not determine whether plaintiff properly asserted her claims of retaliatory discharge in violation of Title VII and WLAD in considering plaintiff's motion because, even assuming that plaintiff properly raised these claims, there are material issues of fact that preclude summary judgment.

Under Title VII and WLAD, it is unlawful for an employer to discriminate against an employee because the employee has opposed an unlawful employment practice or filed a charge, testified, assisted, or participated in an investigation or proceeding pursuant to Title VII or WLAD. S ee 42 U.S.C. § 2000e-3(a); RCW 49.60.210(1). Because Washington courts look to federal law under Title VII when analyzing retaliation claims under WLAD, the Court considers plaintiff's Title VII and WLAD claims together. See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003) (citations omitted); see also Graves v. Dep't of Game, 887 P.2d 424, 428 (Wash. 1994). Courts analyze Title VII and WLAD claims of retaliation under the burden shifting framework articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Stegall , 350 F.3d at 1066.

Under the McDonnell Douglas framework, plaintiff must first make out a prima facie case of retaliation under Title VII and WLAD by demonstrating that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision. Stegall , 350 F.3d at 1065-66 (citation omitted). Once plaintiff makes out a prima facie case of retaliation, the burden shifts to defendant City to articulate a legitimate, non-retaliatory reason for the adverse employment action. See Id. at 1066 (citing Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003)). If defendant City articulates such a reason, plaintiff “bears the ultimate burden of demonstrating that [defendant's] reason was merely a pretext for” a retaliatory motive. Id. (quoting Manatt , 339 F.3d at 800).

For the purposes of this motion, plaintiff and defendant City do not dispute that plaintiff engaged in at least some protected activity and that the termination of plaintiff's employment is considered an adverse employment action. See Dkts. 262, at 7-8; 289, at 9. However, the parties dispute whether plaintiff has demonstrated that there is a causal link between plaintiff's protected activity and the termination of her employment. See Dkts. 262, at 9; 289, at 9. Plaintiff and defendant City further dispute the legitimacy of defendant City's proffered reasons for terminating plaintiff's employment. See Dkts. 262, at 10-11; 289, at 9-20.

Here, plaintiff offers evidence purporting to show that defendant City admitted to terminating plaintiff's employment in retaliation for filing whistleblower complaints and suing the City. See Dkt. 262, at 3 (citing defendant City's responses to plaintiff's interrogatories (Dkt. 263-2) and defendant Holmes' deposition testimony (Dkt. 263-3, at 7)). Plaintiff contends that her proffered evidence is direct evidence of defendant City's retaliation, and therefore, the McDonnell Douglas burden shifting framework does not apply. See Dkt. 262, at 9-10 (citing Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)). Plaintiff further argues that even absent direct evidence, defendant City's proffered reasons for terminating her employment are pretextual. See Id. at 10-11.

However, citing to the same evidence relied upon by plaintiff, defendant City argues that the evidence of record merely creates material issues of fact as to the reasons for plaintiff's termination, and therefore, plaintiff is not entitled to summary judgment. See Dkt. 289, at 6-8; see also Dkts. 263-2, 263-3, 290, 291-3.

The parties' cited evidence reflects the following: on June 26, 2019, plaintiff's employment was terminated, and defendant City delivered a letter to plaintiff indicating that she had been terminated because she “violated ethical and fiduciary duties owed to the City, [plaintiff's] client.” Dkt. 291-3. During an August 2020 deposition, defendant Holmes testified that the decision to terminate plaintiff's employment “began [. . .] when I understood the contents of a whistleblower complaint that was filed” by plaintiff in 2017. Dkts. 263-3, at 5. Defendant Holmes further testified that “it's not the whistleblower complaint itself, it's really the content of the complaint.” Id. Regarding the contents of plaintiff's whistleblower complaint, defendant Holmes testified that it “caused me to start to have concerns about [plaintiff's] commitment to maintaining client confidences, her loyalty to the City, and her role as a lawyer to the City.” Id. at 6. Defendant Holmes testified that “[o]ver time there was an accumulation of some additional concerns [. . .] rooted in [plaintiff] fulfilling her ethical obligations to the City as her client, ” including plaintiff's statements “adverse to her client while she was still advising that client.” Id. Defendant Holmes' December 2020 declaration is consistent with his prior deposition testimony. See Dkt. 290, at 4-6. Defendant City has consistently taken the position that it is unethical for plaintiff to be representing the City in matters involving persons who are making claims against the City for discrimination, harassment and retaliation, while at the same time bringing similar claims on her own behalf against the very client she represents-namely, defendant City. See, e.g. , Dkt. 263-2, at 4-10 (defendant City's responses to plaintiff's interrogatories); Dkt. 264 (defendant City's renewed motion to dismiss plaintiff's complaint based on evidence of ethical misconduct); Dkt. 289, at 6-8 (defendant City's response in opposition to plaintiff's motion for summary judgment (Dkt. 262)).

Additionally, in response to plaintiff's interrogatories, defendant City stated that plaintiff's employment was terminated “because of cumulative effects of the then known and documented ethical and fiduciary violations that had been perpetrated by [plaintiff].” Dkt. 263-2, at 9 (also incorporating prior interrogatory responses reflecting plaintiff's purported ethical and fiduciary violations, Dkt. 263-2, at 3-8). Defendant City also responded that “[plaintiff] had a right to pursue her legal claims against the City, her client. However, that did not mean [plaintiff] could disregard her ongoing ethical and fiduciary obligations” that she owed to defendant City. Id. at 6.

In considering the parties' proffered evidence, it appears that plaintiff has selectively overlooked portions of defendant City's stated reasons for terminating plaintiff's employment. Taking both plaintiff and defendant City's evidence together, and viewing the facts in the light most favorable to defendant City-the nonmoving party-the Court finds that there are material issues of fact regarding defendant City's asserted non-retaliatory reasons for terminating plaintiff's employment. While plaintiff contends that defendant City admitted to terminating her employment because of her protected activity (Dkt. 262, at 9), the parties' proffered evidence is susceptible to more than one reasonable interpretation as to defendant City's reasons for terminating plaintiff's employment-whether defendant City terminated plaintiff's employment because of protected activity or because she purportedly violated ethical and fiduciary obligations owed to the City. Weighing of this evidence, and drawing any inferences therefrom, are jury functions and not the function of the Court. See United Steel Workers of Am. , 865 F.2d at 1542. Therefore, plaintiff has failed to demonstrate that she is entitled to summary judgment as a matter of law as to her claims of retaliation against defendant City under Title VII and WLAD.

Accordingly, the Court recommends denying plaintiff's motion for summary judgment.

III. Defendant Young's Motion for Summary Judgment

Defendant Young seeks summary judgment dismissal of plaintiff's claim that he retaliated against plaintiff in violation of WLAD, RCW 49.60.180 (Count 4). See Dkt. 266. Defendant Potter joins defendant Young's motion for summary judgment and also seeks dismissal of plaintiff's claim of retaliation under WLAD against him. See Id. at 1 n. 1, 9 n. 5; Dkt. 268, at 2. Defendants Young and Potter also ask the Court to dismiss or strike plaintiff's request for punitive damages against them. See Dkt. 266, at 23.

A. Count 4 - Retaliation in Violation of WLAD

Plaintiff alleges that during her employment with defendant City, defendants Young and Potter were her supervisors with the power to make personnel decisions regarding plaintiff's employment. See Dkt. 186, at 3. Plaintiff further alleges that in December 2013 and in October 2015, she complained to defendants Young and Potter about discriminatory comments made by defendant Potter, which were investigated. See Id. at 4-5. Thereafter, in November 2015, plaintiff alleges that defendants Young and Potter accused plaintiff of misconduct and placed her on administrative leave. See Id. at 5. Plaintiff claims that defendants Young and Potter's decision to place her on leave was in retaliation for her reporting and opposing defendants' discriminatory conduct, and therefore, in violation of WLAD, RCW 49.60.180. See Id. at 10-11.

Defendants Young and Potter do not dispute that plaintiff has shown a prima facie case of retaliation under WLAD. See Dkt. 266, at 9. Defendants Young and Potter further note that the District Court previously found that defendants met their burden of producing legitimate, non-retaliatory reasons for placing plaintiff on paid administrative leave. See Id. (citing Dkts. 170, at 49-50; 181, at 5-6). Accordingly, defendants Young and Potter argue that they are entitled to summary judgment because plaintiff cannot show that their asserted reasons for placing plaintiff on leave were pretext for retaliation. See Id. at 9-19. In support of their motion, defendants Young and Potter rely on defendant Young's declaration (Dkt. 267); the deposition testimony of plaintiff and defendants Young, Potter, and Holmes (Dkts. 269-1, 269-2, 269-3, 269-6); and other pleadings and evidence of record. See Dkt. 266, at 9.

In response, plaintiff argues that (1) the “law of the case doctrine” precludes summary judgment, and (2) defendants Young and Potter's motion gives rise to additional material issues of fact regarding defendants' purported reasons for placing plaintiff on paid administrative leave. See Dkt. 296, at 5-6, 9-19.

As an initial matter, plaintiff argues that defendant Young and Potter's motion is barred by the “law of the case doctrine” because the District Court previously denied defendants' motions for summary judgment on the same claims of retaliation. Dkt. 296, at 5-6 (citing Dkts. 170, at 50; 181, at 7). “The law-of-the-case doctrine generally provides that when a court decides upon a rule of law, the decision should continue to govern the same issues in subsequent stages in the same case.” Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018) (citation omitted). However, the doctrine “does not preclude a court from reassessing its own legal rulings in the same case.” Id. (“The law of the case doctrine does not [] bar a court from reconsidering its own orders before judgment is entered or the court is otherwise divested of jurisdiction over the order.” (citation omitted)). “Once the plaintiff elects to file an amended complaint, the new complaint is the only operative complaint before the district court.” Id. (citation omitted). Where a motion is filed challenging the amended complaint, the district court “is not [] bound by any law of the case.” Id.

Here, plaintiff elected to file an amended complaint after the District Court denied defendant Young and Potter's prior motion for summary judgment. See Dkts. 170, 181, 186. Therefore, plaintiff's second amended complaint is the operative complaint, and the Court is not bound by any law of the case in considering defendants' subsequent motions for summary judgment. See Askins , 899 F.3d at 1042; see also Clark v. Mason, No. C04-1647-JCC, 2008 WL 336790, at *4 (W.D. Wash. Feb. 5, 2008) (“By entertaining a subsequent motion for summary judgment on the retaliation issue, the Court would not be changing its interpretation of the law, but rather deciding whether [d]efendants' subsequent showing meets the Rule 56 standard. Thus, ‘[t]he law of the case as established by the ruling on the first summary judgment motion [is] not so inflexible as to preclude a second look.'” (quoting Cable & Computer Tech. Inc. v. Lockheed Sanders, Inc., 214 F.3d 1030, 1038 (9th Cir. 2000)).

Turning to the merits of defendants Young and Potter's motion, as noted above ( see supra Section II.B), under the McDonnell Douglas framework, plaintiff must first make out a prima facie case of retaliation under WLAD by demonstrating that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision. Stegall , 350 F.3d at 1065-66 (citation omitted). Defendants Young and Potter appear to concede, and the District Court previously found, that plaintiff has demonstrated a prima facie claim of retaliation. See Dkt. 170, at 44-49; Dkt. 266, at 9.

Once plaintiff makes out a prima facie case of retaliation, the burden shifts to defendants Young and Potter to articulate a legitimate, non-retaliatory reason for the adverse employment action. See Id. at 1066 (citing Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003)). Here, defendants Young and Potter assert that they placed plaintiff on paid administrative leave based on their concerns that plaintiff was not acting in the best interests of her client, defendant City, and because of their concerns regarding plaintiff's ability to provide legal services at that time. See Dkt. 170, at 50 (the District Court's prior order finding that defendants had produced a legitimate reason for placing plaintiff on leave); Dkt. 266, at 11 (defendants' motion reflecting the same). Plaintiff does not appear to dispute that defendants Young and Potter have satisfied their burden of producing legitimate, non-retaliatory reasons for placing plaintiff on leave. See Dkt. 296. However, plaintiff argues that material issues of fact remain as to whether defendants' asserted reasons were improperly motivated, and therefore, pretextual and/or actually motivated by retaliation against plaintiff. See Id. at 10-24. Therefore, the Court turns to the disputed issue of pretext.

Once plaintiff demonstrates a prima facie case of retaliation, and defendants have proffered a legitimate, non-retaliatory reason for taking an adverse employment action, plaintiff “bears the ultimate burden of demonstrating that [defendants'] reason was merely a pretext for” a retaliatory motive. Stegall , 350 F.3d at 1066 (citation omitted). A plaintiff may survive summary judgment “by offering sufficient evidence to create a genuine issue of material fact either (1) that the [defendant] employer's articulated reason for its action is pretextual or (2) that although the employer's stated reason is legitimate, [retaliation] nevertheless was a substantial factor motivating the employer.” Scrivener v. Clark College, 441, 334 P.3d 541, 544 (Wash. 2014) (citing McDonnell , 411 U.S. at 93). “Once the record contains reasonable but competing inferences of both [retaliation] and non[retaliation], it is for the jury to decide between the competing inferences.” Edman v. Kindred Nursing Ctrs. West, LLC, No. 14-CV-01280 BJR, 2016 WL 6836884, at *6-7 (W.D. Wash. Nov. 21, 2016) (stating that the retaliation must be a substantial factor behind the adverse employment action).

Although proof supporting a plaintiff's prima facie claim of retaliation may be relevant to her proof of the defendant's pretext, “[t]he difference between the first and the third steps of the McDonnell Douglas framework is not without some consequence.” Hawn v. Executive Jet Mgmt., Inc. , 615 F.3d 1151, 1158 (9th Cir. 2010) (noting that a plaintiff's burden at the prima facie stage is less onerous than at the pretext stage). “[A] plaintiff at the pretext stage must produce evidence in addition to that which was sufficient for her prima facie case in order to rebut the defendant's showing” of a nonretaliatory reason for the allegedly retaliatory conduct. Godwin v. Hunt Wesson, Inc. 150 F.3d 1217, 1220 (9th Cir. 1998). However, “the trier of fact may [also] consider the same evidence that the plaintiff has introduced to establish a prima facie case in determining whether the defendant's explanation for the employment decision is pretextual.” Lowe v. City of Monrovia , 775 F.2d 998, 1008 (9th Cir. 1985); see also Stegall , 350 F.3d at 1069 (“[I]t is improper to ignore evidence in support of [plaintiff]'s prima facie case” in analyzing pretext.).

When a plaintiff offers circumstantial evidence that an employer's motives were different from its stated motives, the Court requires “specific” and “substantial” evidence of pretext to survive summary judgment. Stegall , 350 F.3d at 1066. Overall, “[t]he plaintiff in an employment discrimination [or retaliation] action need produce very little evidence in order to overcome an employer's motion for summary judgment [. . .] because the ultimate issue is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.” Chuang v. Univ. of Cal. Davis, Bd. of Trustees , 225 F.3d 1115, 1124 (9th Cir. 2004); see also Stegall , 250 F.3d at 1072 (“[W]e require very little evidence to survive summary judgment.”).

Here, the Court finds that there are material issues of fact that preclude summary judgment as to plaintiff's claims of retaliation against defendants Young and Potter. Although defendants Young and Potter argue that there is no evidence to show pretext, and that their decision to place plaintiff on leave was reasonable, plaintiff has offered specific and substantial circumstantial evidence suggesting that defendants' proffered reasons for placing her on leave were pretextual.

Plaintiff argues that defendants Young and Potter's reasons for placing plaintiff on paid administrative leave were factually false and inconsistent. See Dkt. 296, at 16-19. Plaintiff also argues that placing her on leave was in “sharp contrast” to the discipline that defendant Potter received for his own unprofessional conduct. Id. at 13. In support of her argument, plaintiff provides evidence that at the time she was placed on administrative leave, no rationale was given as to the reasons she was placed on leave. See Dkt. 297-1. Plaintiff further cites evidence that a month after being placed on leave, defendant Young then stated that plaintiff was placed on leave so that defendant City could investigate (1) an October 2015 incident regarding plaintiff's failure to provide legal advice on an issue, and (2) plaintiff's “unusual” and “unprofessional” behavior during a November 2015 litigation strategy meeting. See Dkt. 297-2. Regarding defendant Young's first reason, plaintiff cites evidence that she did in fact provide legal advice as to the issue cited in defendant Young's letter, and therefore, plaintiff argues that this reason is false. See Dkts. 296, at 17; 297-7; see also Dkts. 297-2; 297-3, at 11; 297-7, at 1 (reflecting that plaintiff “tried to tell” defendant Potter that she had previously provided the legal advice at issue prior to being placed on leave).

As for the second reason, plaintiff provides evidence that although she was placed on leave for her behavior during a November 2015 meeting, defendant Potter's own unprofessional behavior did not result in him being placed on administrative leave. See Dkts. 296, at 13; 297-4, at 2 (reflecting that defendant Potter was merely counseled and required to attend training regarding his own unprofessional behavior). Here, the fact that plaintiff was placed on leave for a reason that plaintiff claims is factually false, coupled with the inconsistent application of discipline to an employee who lodged complaints, is sufficiently specific and substantial evidence from which a jury could conclude that the decision to place plaintiff on leave was a pretext for retaliation. See Scrivener , 334 P.3d at 547 (To show pretext, a plaintiff can show that a defendant's articulated reason for an adverse employment action “has no basis in fact” or “was not really a motivating factor for the decision.”).

Additionally, plaintiff further identifies the “incriminating timing” of defendants Young and Potter's decision to place plaintiff on paid administrative leave on November 12, 2015, immediately after she complained about discriminatory conduct and retaliation. See Dkt. 296, at 11, 14 (citing Dkt. 170, at 12-13). Defendants Young and Potter argue that the decision to place plaintiff on paid administrative leave was made prior to the November 12, 2015, meeting, and therefore, plaintiff's complaints raised during the same meeting could not have been a substantial factor in the decision to place plaintiff on leave. See Dkt. 266, at 14.

Here, it is undisputed that a signed memorandum placing plaintiff on administrative leave was prepared prior to the November 12, 2015, meeting. See Dkt. 266, at 15. However, both defendants Young and Potter testified that the decision to place plaintiff on administrative leave had not actually been made prior to that meeting. See Dkt. 103-6, at 12 (defendant Potter's testimony that at the time of the November 12, 2015, meeting, defendants “were only considering placing plaintiff on leave.”); Dkt. 103-9, at 4 (defendant Young's testimony reflecting the same). Further, defendant Potter testified that, just before placing plaintiff on administrative leave, plaintiff raised complaints regarding defendant Potter calling women “bitches” and recalling defendant Potter's comment about another female employee with the “big tits.” Dkt. 103-6, at 12; see also Dkt. 105, at 3 (defendant Young's declaration reflecting the same). Further, plaintiff testified that during the November 12, 2015, meeting-before being placed on leave-she told defendant Young that she “[felt] retaliated against” for making complaints about defendant Potter's comments. Dkt. 129-1, at 87, 89. Considering plaintiff's evidence regarding the close timing of defendants Young and Potter's decision to place her on paid administrative leave, a reasonable jury could find that defendants' decision was substantially motivated by retaliation against plaintiff because of her complaints. See Stegall , 350 F.3d at 1069 (Although timing alone may not be sufficient to raise a genuine issue with respect to pretext, “the timing of adverse employment action can provide strong evidence of retaliation.”).

Defendants Young and Potter offer additional evidence to corroborate that their decision to place plaintiff on administrative leave was reasonable and not motivated by retaliation. See Dkt. 266, at 6-8, 14-15 (citing outside attorney and expert opinions (Dkts. 269-5; 269-12) and plaintiff's medical records (Dkts. 66, 67)). However, this evidence-procured after placing plaintiff on leave-introduces a competing rationale as to defendants' asserted reasons for placing plaintiff on leave. “Once the record contains reasonable but competing inferences of both [retaliation] and non[retaliation], it is for the jury to decide between the competing inferences.” Edman , 2016 WL 6836884, at *6-7; see also Stegall , 350 F.3d at 1072-73 (“[B]ecause motivations are difficult to ascertain, such an inquiry should be left to the trier of fact[.] [. . .] [W]ithout a searching inquiry into these motives, those [acting for impermissible motives] could easily mask their behavior behind a complex web of post hoc rationalizations.” (internal quotations omitted)).

Therefore, taking plaintiff and defendants' cited evidence together, and viewing the facts in the light most favorable to plaintiff, a reasonable juror could conclude that defendants Young and Potter's asserted reasons for placing plaintiff on paid administrative leave were pretextual or substantially motivated by retaliation. Thus, the Court finds that there are material issues of fact remaining, and defendants Young and Potter have failed to demonstrate that they are entitled to summary judgment as a matter of law.

Accordingly, the Court recommends denying defendants Young and Potter's motion for summary judgment as to plaintiff's claim of retaliation under WLAD, RCW 49.60.180.

B. Punitive Damages

Defendants Young and Potter next argue that plaintiff's request for punitive damages against them be stricken or dismissed, as punitive damages are not permitted under Washington State law. See Dkt. 266, at 23. The Court agrees.

Here, plaintiff seeks punitive damages against defendants Young and Potter based on claims alleged under WLAD. See Dkt. 186, at 10, 13. However, the Supreme Court of Washington State has unequivocally stated that “[p]unitive damages are unavailable under the [Washington] Law Against Discrimination [], RCW 49.60.” Dailey v. N. Coast Life Ins. Co., 919 P.2d 589, 590 (Wash.1996). Therefore, plaintiff is foreclosed from seeking punitive damages against defendants Young and Potter.

Accordingly, the Court recommends granting defendants Young and Potter's request to dismiss plaintiff's request for punitive damages under WLAD.

IV. Defendant Potter's Motion for Summary Judgment

Defendant Potter seeks summary judgment dismissal of plaintiff's claim that he allegedly discriminated against plaintiff based on her gender by failing to promote her in violation of WLAD, RCW 49.60.030, .180 (Count 2). See Dkt. 268. Defendant Potter also seeks summary judgment dismissal of plaintiff's claim of retaliation against him. Id. at 2, 15. The Court has already addressed defendant Potter's request to dismiss plaintiff's claim of retaliation in violation of WLAD based on the decision to place plaintiff on paid administrative leave. See supra , Section III.A. Therefore, the Court turns to the merits of defendant Potter's motion regarding plaintiff's claim of gender discrimination.

In her complaint, plaintiff alleges that in October 2014, she applied and interviewed for a promotion and that she was the only female candidate interviewed for the position. See Dkt. 186, at 4. Plaintiff further alleges that defendant Potter, her supervisor, made derogatory and sexist comments about plaintiff and discouraged the interview panel from selecting her for the promotion. See Id. Plaintiff also alleges that in December 2013, defendant Potter made sexist and derogatory statements about other female employees. See Id. at 4-5. Plaintiff further alleges that defendant Potter disregarded the City's hiring procedures and offered the promotion to defendant Young, a male, who did not apply or interview for the promotion. See Id. at 4. Based on the foregoing, plaintiff claims that defendant Potter discriminated against her based on her gender in violation of WLAD, RCW 49.60.030, 180. See Id. at 8-10.

Regarding plaintiff's claim of discrimination, defendant Potter argues solely that he is entitled to summary judgment as a matter of law because there is no evidence that his decision to promote defendant Young over plaintiff was “pretext to cover up for any discriminatory intent.” Dkt. 268, at 5-14. In support of his motion, defendant Potter relies on the deposition testimony of City of Vancouver Fire Chief Joe Molina, as well as other deposition testimony and pleadings of record. See Dkts. 268, at 3, 5-8; 269.

In response, plaintiff first argues that defendant Potter's motion should be denied based on the “law of the case doctrine.” Dkt. 296, at 5-6. As discussed above, the District Court's order denying defendant Potter's prior motion for summary judgment as to plaintiff's gender discrimination claim does not bar the Court from considering defendant Potter's pending motion for summary judgment. See supra , Section III.A. Therefore, the Court turns to plaintiff's remaining arguments in opposition to defendant Potter's motion for summary judgment.

Plaintiff next argues that there are genuine issues of material fact regarding pretext and defendant Potter's asserted reasons for deciding to promote defendant Young over plaintiff. See Dkt. 296, at 8-9, 19-23. Under WLAD, an employer may not discriminate against an employee in compensation or in other terms or conditions of employment, including job promotions, because of the employee's gender. See RCW 49.60.180(3); Fulton v. State, Dep't of Soc. & Health Servs., 279 P.3d 500, 508 (Wash. App. Ct. 2012). Claims of discrimination under WLAD are analyzed under the burden shifting framework articulated in McDonnell Douglas , 411 U.S. 792. See supra, Section III.A; Mikkelsen v. Pub. Util. Dist. No.1 of Kittitas Cty., 404 P.3d 464, 470 (Wash. 2017); see also Erickson v. Biogen, Inc., 417 F.Supp.3d 1369, 1378 (W.D. Wash. 2019) (citations omitted).

Under the McDonnell Douglas framework, defendant Potter and plaintiff do not appear to dispute that plaintiff has established a prima facie claim of gender discrimination under WLAD. See Dkt. 268, at 3-5; see also Dkt. 170, at 44-45 (the District Court's prior order finding the same).

Once plaintiff has demonstrated a prima facie claim of gender discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for failing to promote plaintiff. See Mikkelsen , 404 P.3d at 471. Here, the parties do not appear to dispute that defendant Potter has proffered legitimate, non-discriminatory reasons for failing to promote plaintiff-that he selected defendant Young over plaintiff for the promotion because he believed defendant Young was the best for the position and because he was faced with a “split recommendation” from interview panels. See Dkts. 170, at 44; 268, at 4-5; 296, at 8, 19. Therefore, the Court turns to the disputed issue of pretext.

At the third and final step in the McDonnell Douglas burden shifting analysis, a plaintiff must produce sufficient evidence that the defendant's alleged non-discriminatory reason for his employment action was a pretext for a discriminatory purpose. See Scrivener , 334 P.3d at 546. A plaintiff may satisfy “the pretext prong” by “offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant's reason is pretextual or (2) that although the [defendant]'s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the [defendant].” Id. To overcome summary judgment, a plaintiff need only show that “discrimination was a substantial factor in an adverse employment action, not the only motivating factor.” Id. ; see also Mikkelsen , 404 P.3d at 528 (“To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer's adverse action.”). As discussed above ( see supra , Section III.A), although the evidentiary burden on plaintiff at the pretext stage of the analysis remains relatively low, she must produce evidence in addition to evidence relied upon in establishing her prima facie claim of gender discrimination. See Stegall , 350 F.3d at 1069; see also Scrivener , 334 P.3d at 546 (“An employee does not need to disprove each of the employer's articulated reasons to satisfy the pretext burden of production” at summary judgment. (emphasis in original)). “Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation. [] When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.” Mikkelsen , 404 P.3d at 527-28 (internal quotations and citations omitted).

Here, defendant Potter argues that there is no evidence establishing that his asserted reasons for failing to promote plaintiff were “pretext to cover up for discriminatory intent.” Dkt. 269, at 5-11. Defendant Potter relies on the undisputed deposition testimony of Chief Molina that defendant Potter never made any derogatory comments about plaintiff to an interview panel and that plaintiff otherwise “performed poorly” during her interview with the interview panel. Dkt. 268, at 6-7 (citing Dkt. 269-4, at 26, 28). Defendant Potter further argues that in light of Chief Molina's testimony, plaintiff cannot otherwise produce evidence that her gender was a “substantial factor” in defendant Potter's decision to promote defendant Young over plaintiff. See Id. at 11-14.

However, plaintiff argues that Chief Molina's deposition testimony “does not erase” genuine issues of material fact regarding defendant Potter's reasons for failing to promote plaintiff. Dkt. 296, at 19-23. During his deposition, Chief Molina testified that defendant Potter did not make sexist comments about plaintiff to one of the two interview panels during the recruitment process. Dkt. 269-4, at 27-28. However, Chief Molina also testified that the hiring process in this case “was an unusual process” because defendant Young “wasn't a candidate.” Id. at 14; see also Dkt. 297-10, at 8-9 (Chief Molina's additional testimony that this “was unusual in the [recruitment] processes” and that he “just [felt] like you get the position in a more credible way when you go through the process.”). Although defendant Potter argues that his decision to promote defendant Young over plaintiff was within the City's recruitment guidelines ( see Dkt. 268, at 9), defendant Molina's testimony regarding the unusual process followed in this case supports an inference that defendant Potter's decision may have been improperly motivated. And defendant Potter offers no additional evidence to show otherwise.

Plaintiff further cites Chief Molina's testimony that during the interview process, defendant Potter sought support of the all male interview panel to oppose the promotion of plaintiff-the only female applicant. See Dkt. 296, at 22. Chief Molina testified that defendant Potter informed him that a separate interview panel was going to recommend plaintiff for the promotion, but that “[defendant Potter] just said [. . .] so whoever I pick, I'm going to need-I'm going to need your support if it's not [plaintiff].” Dkt. 297-10, at 5-6. Chief Molina further testified that he understood defendant Potter's statement “to mean that [defendant Potter] was going to have an office that was going to be disappointed [. . .] if he selected anybody but [plaintiff]. [. . .] And therefore, he would need, you know, as a management team we tried to support each other when one of us was going through something[.]” Id. at 7. Although defendant Potter argues that there is no evidence to suggest that he “tried to rally” interview panel members to reject plaintiff's promotion (Dkt. 298, at 11-12), defendant Molina's testimony could suggest otherwise.

Plaintiff further argues that defendant Potter's asserted reason for selecting defendant Young over plaintiff-that there was a split recommendation between plaintiff and another male candidate (Dan Lloyd)-is also questionable based on Chief Molina's testimony. See Dkt. 296, at 23. In his own deposition, defendant Potter testified that he first believed that defendant Young should be promoted over plaintiff when he “was presented with a dilemma” of split recommendations between plaintiff and Mr. Lloyd for the promotion. Dkt. 103-5, at 16; see also Dkt. 268, at 3. However, Chief Molina testified that “there wasn't a consensus” and that there were “other candidates that [the interview panel] felt strongly about.” Dkt. 297-10, at 10. Plaintiff's cited evidence calls into question the factual accuracy of defendant Potter's asserted reasons for selecting defendant Young over plaintiff.

Finally, plaintiff argues that defendant Potter's prior derogatory comments about female employees supports the inference that he did not respect women in the workplace. See Dkt. 296, at 19 (citing Dkt. 170, at 44 (the District Court's prior finding regarding the same)). Here, plaintiff cites evidence that in December 2013, defendant Potter made a comment about a female employee “with the big tits.” Dkt. 129-1, at 40; see also Dkt. 103-6, at 12 (defendant Potter's deposition testimony reflecting the same); Dkt. 297-3, at 7-9 (reflecting the same, as well as other derogatory comments about female employees).

Defendant Potter argues that this single remark about another female employee does not create a material issue of fact that his decision to promote defendant Young over plaintiff was substantially motivated by gender. See Dkt. 268, at 11-12. However, this remark, considered with other circumstantial evidence, is probative of discriminatory intent. See Scrivener , 334 P.3d at 548 (“Whether or not these statements alone would be sufficient to show either pretext or that [plaintiff's gender] was a substantially motivating factor, they are circumstantial evidence probative of discriminatory intent.”); see also Shokri v. Boeing Co., 311 F.Supp.3d 1204, 1214 (W.D. Wash. 2018) (noting that courts may “discount” stray remarks that are not connected to an adverse employment action, but that the remarks are not “irrelevant” in considering any discriminatory animus against a plaintiff based on a protected characteristic). Thus, defendant Potter's prior statement supports an inference that he did not respect women in the workplace.

Therefore, considering plaintiff's proffered evidence, and viewing the facts in the light most favorable to her, a reasonable jury could conclude that defendant Potter's decision to promote defendant Young over plaintiff was pretextual or substantially motivated by the plaintiff's gender. Thus, the Court finds that there are material issues of fact remaining, and defendant Potter has failed to demonstrate that he is entitled to summary judgment as a matter of law.

Accordingly, the Court recommends denying defendant Potter's motion for summary judgment as to plaintiff's claim of gender discrimination under WLAD, RCW 49.60.030, .180.

V. Defendant Holmes' Joinder

Defendant Holmes joins in defendant Potter's motion for summary judgment (Dkt. 268) and requests summary judgment dismissal of plaintiff's claim of gender discrimination in violation of WLAD (Count 2) based on the failure to promote plaintiff. See Dkt. 270, at 2-3. Plaintiff did not file any response to defendant Holmes' joinder. See Dkt.

Defendant Holmes argues that if plaintiff's claim of gender discrimination against defendant Potter fails, plaintiff's claim against defendant Holmes' must also fail. See Id. at 3. Defendant Holmes states that he was not involved in the decision to promote defendant Young over plaintiff and that defendant Potter was the ultimate decisionmaker. See Id. at 2 (citing Dkt. 101-1 (defendant Holmes' deposition testimony); Dkt. 101-2 (defendant Potter's deposition testimony)). However, defendant Holmes' notes that the District Court previously denied summary judgment as to plaintiff's claim against him, finding genuine issues of material fact as to (1) defendant Holmes' decision to delegate the decision-making authority to defendant Potter, and (2) defendant Holmes' decision not to object to defendant Potter's plan to abandon the interview and appointment process and promote defendant Young over plaintiff. See Dkts. 170, at 24, 27; 270, at 2.

As discussed above, the Court recommends denying defendant Potter's motion for summary judgment. See supra , Section IV. Because the court has previously denied defendant Holmes' motion for summary judgment, and defendant Holmes' only other argument for summary judgment is premised upon the success of defendant Potter's motion ( see Dkt. 270, at 2-3), the Court recommends denying defendant Holmes' request to dismiss plaintiff's claim of gender discrimination in violation of WLAD, RCW 49.60.030, 180.

CONCLUSION

For the reasons discussed herein, the Court recommends the following:

1. Defendant City's partial motion for summary judgment (Dkt. 260) should be GRANTED in part and DENIED in part. Plaintiff's claim of deprivation of a liberty interest in violation of the Fourteenth Amendment (Count 7) should be dismissed with prejudice;

2. Plaintiff's partial motion for summary judgment (Dkt. 262) should be DENIED . Additionally, defendant Holmes' brief in opposition (Dkt. 292) to plaintiff's motion for summary judgment should be stricken;

3. Defendant Young's motion for summary judgment (Dkt. 266) should be GRANTED in part and DENIED in part. Plaintiff's request for punitive damages against defendants Young and Potter should be dismissed;

4. Defendant Potter's motion for summary judgment (Dkt. 268) should be DENIED ; and

5. Defendant Holmes' joinder and request for summary judgment (Dkt. 270) should be DENIED .

Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a result in a waiver of those objections for purposes of appeal. See Thomas v. Arn , 474 U.S. 140 (1985); Miranda v. Anchondo , 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on June 25, 2021, as noted in the caption