3 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 4 AT SEATTLE
5 MARCUS ANTHONY DELGADO, ) ) Case No. 2:19-cv-00395-BJR 6 Plaintiff, ) ) 7 ) ORDER GRANTING DEFENDANT’S v. ) MOTION FOR SUMMARY JUDGMENT 8 ) ) 9 HONEYWELL INTERNATIONAL, INC., ) d.b.a. HONEYWELL AEROSPACE, a ) 10 Delaware corporation, ) ) 11 Defendant. ) ____________________________________) 12 I. INTRODUCTION 13 Plaintiff Marcus Delgado, an African-American male, began his employment with 14 Defendant Honeywell International, Inc. (“Honeywell”) in 2001 and remained with the company 15 until his resignation in 2019. Delgado brings this action against his former employer alleging: (1) 16 racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title 17 VII”), 42 U.S.C. § 2000e et seq. and the Washington Law Against Discrimination (“WLAD”), 18 RCW 49.60.180. et seq.; (2) interference with his rights under the Family Medical Leave Act 19 (“FMLA”), 29 U.S.C. §2615(a)(1); and (3) negligent infliction of emotional distress under 20 Washington law. See Compl., Dkt. No. 1. Currently before the Court is Honeywell’s Motion for 21 Summary Judgment. See Def.’s Mot. Summ. J.; Pl.’s Resp., Dkt. Nos. 27, 34. Having reviewed 22 the motion, opposition thereto, the relevant legal authority, and the record of the case, the Court 23 will grant the motion. The Court’s reasoning follows. 1 II. BACKGROUND 2 A. Delgado’s Employment at Honeywell 3 Delgado was hired by Honeywell in May 2001. Delgado Dep. 20:15-17, Dkt. No. 34-2. 4 After a series of promotions from November 2005 to December 2007, he transitioned from his
5 original role in product development and quality assurance to one in the Program Planning and 6 Control Department (“PP&C”). Id. at 20:21-21:19. In May 2011, he became a Senior PP&C 7 Analyst at Honeywell’s facility in Redmond, Washington. Id. Delgado remained in this role until 8 his resignation on April 4, 2019. Id. 9 During the time period relevant to this action, Delgado’s primary duty was to track, 10 analyze, and report on the costs associated with Honeywell’s aerospace development programs. 11 Def.’s Mot. Summ. J. at 4. Delgado was directly supervised by Honeywell’s PP&C manager. 12 Robin Parker served in this role from 2014 until her promotion to Sr. PP&C manager in February 13 2017. Parker Decl. ¶ 3. On March 27, 2017, Minerva Davis replaced Parker as PP&C manager 14 and, therefore, became Delgado’s direct supervisor. Davis Decl. ¶ 4. Prior to her promotion, Davis
15 was Delgado’s peer from 2007 through 2017, working as a Sr. PP&C Analyst in the same 16 department. Id. at 3. Delgado claims that from the moment Davis became his supervisor, he was 17 subject to “a pattern of racial discrimination”, including unfair ridicule and alienation from his 18 team at Davis’ direction. Delgado Dep. 97-98. 19 B. 2017 Mid-Year Performance Review & Performance Improvement Plan 20 On July 28, 2017, Delgado received an unsatisfactory mid-year performance evaluation, 21 including a 6-block rating1 indicating his performance fell below Honeywell’s standards. See 22
23 1 According to Honeywell’s performance scale, a 6-block rating indicates that Delgado’s expected behaviors fell below Honeywell’s expectations, while his performance and “targets for most goals with respect to quality and quantity” were at Honeywell standards. See Delgado 2017 Mid-Year Review. 1 Delgado 2017 Mid-Year Review, Dkt. No. 30-1. The 2017 mid-year evaluation listed Delgado’s 2 performance unsatisfactory in, among other areas, “providing key deliverables to his team” and 3 more specifically, in “providing timely actuals [and] reviewing [Program Performance Reports] . 4 . . with his program team with understandable variance explanations.” Id. at 2. Delgado was also
5 found to submit travel requests that “far exceed those [sic] of his peers, who also support [their 6 clients] virtually.” Id. 7 Delgado was also placed on a 60-day Performance Improvement Plan (“PIP”). Among 8 other things, the PIP required Delgado to: (1) “present the completed PPRs to the program team 9 on a monthly basis”; (2) “be at [his] desk working by the agreed upon core hours”; (3) “complete[] 10 the necessary training to be at the Bronze for schedule and Silver for cost”; and (4) receive “written 11 pre-approval from [his] Program Manager authorizing travel against [a] particular program.” See 12 Delgado PIP at 3-5, Dkt. No. 30-2. The PIP further made clear that Delgado’s failure to meet the 13 expectations set forth in the PIP by September 29, 2017 would “result in further discipline up to 14 and including the termination of [his] employment.” Id. at 5.
15 C. Delgado’s Internal Complaint Against Davis 16 On August 2, 2017, less than a week after receiving notice of his negative evaluation and 17 PIP placement, Delgado filed an internal complaint with Honeywell’s Human Resources 18 Department against Davis for racial discrimination. Business Conduct Incident Report at 1, Dkt. 19 No. 32-1; Delgado Dep. 110:11-113:10. Delgado complained that Davis denied him opportunities 20 that were granted to other employees, such as the ability to travel for work, receive training, and 21 work from home. Id. at 4-5. He also alleged Davis had discriminated against him by giving him a 22 negative performance review and refusing to conduct it in person. Id. 23 Honeywell conducted a formal internal investigation and determined there was no evidence 1 to support Delgado’s concerns. Id. at 9. Specifically, Honeywell could not identify any 2 discriminatory treatment by Davis; nor could it identify any signs he was treated less favorably 3 than his colleagues. Id. On October 3, 2017, Honeywell’s Senior HR Managers Joe Cawood and 4 Heather Bore met with Delgado to share the conclusions of the investigation. Delgado Dep. 124:1-
5 13. 6 D. Delgado’s Medical Leave & Voluntary Resignation 7 Around late September of 2017, Delgado first applied for short-term disability benefits and 8 medical leave through Cigna, Honeywell’s third-party benefits administrator. Id. at 148:4-19. Both 9 of Delgado’s requests were approved; his initial FMLA leave of absence was effective October 4 10 through October 31, 2017. See Cigna’s Notice of Delgado’s Medical Leave at 2, Dkt. No. 32-2. 11 Delgado cites “the stresses with work” and the “hostile environment” as reasons for requesting 12 these benefits. Delgado Dep. 142:12-13. Delgado’s last day of work at Honeywell was October 3, 13 2017. Id. at 135:16-136:1; 141:11-18. Unknown to Honeywell at the time, Delgado suffered a 14 cardiac arrest while playing in a basketball tournament on October 7, 2017. Id. at 150:19-23,
15 152:12-14; Davis Decl. ¶ 22. Delgado cites Honeywell’s “hostile and discriminatory work 16 environment” as the cause. Pl.’s Resp. at 4. 17 Due to his ongoing health conditions, Delgado requested several extensions of his leave of 18 absence; all of which were approved. Delgado Dep. 156:9-25-157:12. He first received twelve 19 weeks of FMLA leave from October 4, 2017 through December 25, 2017. See Cigna’s April 4, 20 2019 Letter to Delgado at 2, Dkt. No. 32-4. After Delgado exhausted his initial twelve weeks of 21 FMLA leave, he received an additional fifteen months of leave from Honeywell. Id.; see also 22 Delgado Dep. 156:16-24. Delgado received a total of 18 months of medical leave. Id. 23 Honeywell’s Medical Leave of Absence Policy states that the company will maintain an 1 employee’s active job status for 18 months or a reasonable time thereafter. Bore Decl. ¶ 9. As his 2 leave of absence approached 18 months, Cigna informed Delgado of Honeywell’s policy and his 3 options in a letter dated April 4, 2019; specifically, Delgado was given two weeks to contact 4 Honeywell regarding his return to work. Id. Instead, Delgado notified Honeywell of his immediate
5 resignation on April 14, 2019. Delgado Dep. 184:6-15; Bore Decl. ¶ 10. 6 E. Procedural History 7 On or about November 16, 2017, Delgado filed a charge of discrimination based on race 8 and retaliation with EEOC, Compl. ¶ 3.9; the EEOC then issued him a right to sue letter, id. ¶ 2.4. 9 He filed the instant lawsuit on March 18, 2019; he brings six claims against Honeywell. Id. 10 ¶¶ 3.9-4.17. Delgado brings federal and state law claims for racial discrimination and retaliation 11 alleging Honeywell: (1) intentionally discriminated against him based on his race by giving him a 12 negative performance evaluation and consequently placing him on a PIP as well as treating him 13 differently than his colleagues by denying his requests for travel, training, and telework; and (2) 14 retaliated against him for filing an internal complaint by preventing him from interviewing for an
15 open position within the company and constructively discharging him. Id. ¶¶ 4.1-4.4; 4.10-4.11. 16 Delgado also filed a claim under 29 U.S.C. §2615(a)(1), alleging Honeywell interfered with his 17 rights under the FMLA by negligently terminating his position after an extended leave of absence 18 based on misinformation from Cigna. Id. ¶¶ 4.6-4.9. Lastly, Delgado brings a state law claim for 19 negligent infliction of emotional distress under Washington law. Id. ¶¶ 4.16-4.17. 20 Honeywell moves for summary judgment on each of Delgado’s claims. See Def.’s Mot. 21 Summ. J. With respect to Delgado’s discrimination and retaliation claims, Honeywell argues the 22 undisputed material facts establish that Delgado’s managers had several legitimate, 23 nondiscriminatory reasons for giving him a negative performance evaluation and consequently 1 placing him on a PIP. Id. at 4. Honeywell also argues the undisputed material facts establish that 2 Delgado received a negative performance review before he filed an internal complaint for 3 discrimination; and was not treated differently than his colleagues. Id. at 1-2. Honeywell contends 4 it did not interfere with or deny his rights under the FMLA because his requests for continuous
5 leave were approved. Id. at 15-16. Honeywell also moves for summary judgment on Delgado’s 6 state claim for negligent infliction of emotional distress arguing the claim is not factually or legally 7 supported. Id. at 16-17. 8 III. LEGAL STANDARD 9 A. Summary Judgment 10 Rule 56 provides that a district court “shall grant summary judgment if the movant shows 11 that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 12 matter of law.” Fed. R. Civ. P. 56(a); Fed. Home Loan Mortg. Corp. v. SFR Investments Pool 1, 13 LLC, 893 F.3d 1136, 1144 (9th Cir. 2018), cert. denied, 139 S. Ct. 1618 (2019). Disputes over 14 facts become “material” only where they “might affect the outcome of the suit under governing
15 law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As such, “materiality is based 16 on the substantive law at issue.” Id. A “genuine dispute of material fact,” occurs where the 17 “evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” 18 Id. The moving party bears the “initial responsibility of informing the district court of the basis for 19 its motion,” including “identifying those portions of the pleadings . . . which it believes 20 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 21 317, 323 (1986) (internal citations omitted). In meeting this burden, the nonmoving party must go 22 beyond the pleadings and show “by [his] own affidavits, or by the depositions, answers to 23 interrogatories, or admissions on file” that a genuine issue of material fact exists. Hopkins v. 1 Andaya, 958 F.2d 881, 885 (9th Cir. 1992) (citing Celotex Corp., 477 U.S. at 324). Further, 2 “[w]here the moving party will have the burden of proof on an issue at trial, the movant must 3 affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 4 party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the moving
5 party has met its initial burden, the nonmovant must respond by showing there is a genuine issue 6 for trial. Anderson, 477 U.S. at 250. “If the nonmoving party fails to establish the existence of a 7 genuine issue of material fact, ‘the moving party is entitled to judgment as a matter of law.’” 8 Perfect Co. v. Adaptics Ltd., 374 F. Supp. 3d 1039, 1041 (W.D. Wash. 2019) (quoting Celotex 9 Corp., 477 U.S. at 323–24). In conducting its evaluation of the merits of a motion for summary 10 judgment, “the court does not make credibility determinations or weigh conflicting evidence.” 11 Soremekun, 509 F.3d at 984. Instead, the Court must “view ‘the evidence in the light most 12 favorable to the nonmoving party.’” Universal Cable Prods., LLC v. Atl. Specialty Ins. Co., 929 13 F.3d 1143 (9th Cir. 2019) (quoting Pension Tr. Fund for Operating Eng’rs v. Fed. Ins. Co., 307 14 F.3d 944, 949 (9th Cir. 2002)).
15 IV. DISCUSSION 16 A. Racial Discrimination Claims 17 The Court first addresses Delgado’s claims for racial discrimination under Title VII and 18 the WLAD. Compl. ¶¶ 4.1–4.5. Title VII makes it unlawful for an employer to “discriminate 19 against any individual with respect to his compensation, terms, conditions, or privileges of 20 employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 21 § 2000e–2(a)(1). Similarly, the WLAD is “patterned after Title VII, so ‘decisions interpreting the 22 federal act are persuasive authority’ for its construction.” Tymony v. Harper, No. C13-1085, 2014 23 WL 3689766, at *2 fn. 4 (W.D. Wash. July 24, 2014) (quoting Xieng v. Peoples Nat'l Bank of 1 Washington, 844 P.2d 389, 392 (Wash. 1993) (en banc)); see also Oliver v. Pacific Northwest Bell 2 Tel. Co., 724 P.2d 1003, 1005 (Wash. 1986) (en banc)) (noting that because the WLAD “lacks 3 specific criteria for proving a discrimination claim,” courts look to cases interpreting equivalent 4 federal laws). Delgado must provide evidence that “‘give[s] rise to an inference of unlawful
5 discrimination.’” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002) (quoting Texas Dep’t of 6 Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). When no direct evidence of discrimination 7 exists, Delgado may prove his case through circumstantial evidence, following the three-step 8 burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 9 (1973). See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1105–06 (9th Cir. 2008) (Title 10 VII); Hines v. Todd Pac. Shipyards, 127 Wash. App. 356, 371 (2005) (WLAD). To establish a 11 prima facie case of racial discrimination under this framework, Delgado must first demonstrate 12 that (1) he is a member of a protected class; (2) he performed his job satisfactorily; (3) he 13 experienced an adverse employment action; (3) he was qualified for his job; and (4) he was treated 14 less favorably than similarly situated employees outside his protected class. See Cornwell v.
15 Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006); Burdine, 450 U.S. at 254. Under 16 the McDonnell framework, establishing a prima facie case creates a rebuttable presumption that 17 the employer discriminated against the employee in an unlawful manner. Id. Therefore, the burden 18 of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the 19 adverse action. Id.; see also Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir. 1995). If the 20 employer offers a legitimate explanation for its decision, the burden shifts back to the plaintiff to 21 show that the employer’s explanation is pretext for the discriminatory or retaliatory behavior. Id. 22 Delgado contends that Davis engaged in a pattern of racial discrimination towards him by 23 giving him a negative performance evaluation and consequently placing him on a PIP. Compl. ¶¶ 1 4.1-4.4; 4.10-4.11. He also alleges Davis treated him differently than his colleagues by denying 2 his requests for travel, training, and telework. Id. Honeywell moves for summary judgment on 3 these claims contending that the undisputed material facts establish that Delgado did not suffer an 4 adverse employment action within the meaning of Title VII and the WLAD; and that he fails to
5 provide any record evidence to demonstrate that Honeywell’s proffered reasons for its actions were 6 mere pretext for racial discrimination. Def.’s Mot. Summ. J. at 10-13. 7 Delgado has advanced a prima facie case of these four elements. He is African American; 8 he was promoted at least three times since beginning his career at Honeywell and received a “top 9 performer” award; his negative performance review and PIP placement as well as his denied 10 requests for travel and internal training are adverse employment actions; and he alleges his 11 colleagues’ requests were approved. This prima facie case is sufficient to shift the burden of 12 production to Honeywell to articulate a legitimate, nondiscriminatory reason for its adverse 13 actions. 14 i. 2017 Mid-Year Evaluation and PIP
15 Delgado first alleges Davis engaged in pattern of racial discrimination toward him by 16 giving him an unwarranted low performance rating, using his poor performance review as a pretext 17 to place him on a PIP, and marring his “record of exemplary performance” by portraying him in a 18 negative light to block his promotional potential within the company. Pl.’s Resp. at 2-3. 19 The Court finds that Honeywell has satisfied its burden with respect to this claim by 20 documenting Delgado’s performance issues in previous evaluations and informal reviews. 21 Honeywell offers the following non-discriminatory reasons for giving Delgado a negative 22 performance review. First, Honeywell argues that Delgado’s performance consistently fell below 23 Honeywell’s standards. His performance deficiencies – failing to consistently provide key 1 deliverables, timely cost reports, and thorough explanations of cost variables on the PPRs – are 2 almost identical to those for which Delgado was previously coached. While Parker and Stefanie 3 Ivie acknowledged that Delgado’s performance was generally satisfactory prior to 2017, they 4 noticed “inconsistencies . . . with respect to his completion of key deliverables, such as internal
5 reporting requirements and month end processing duties.” Parker Decl. ¶ 6; Ivie Decl. ¶ 7. For 6 example, between 2014 and 2017, both declared that Delgado performed his duties well when he 7 was “closely monitored and coached on his performance”; however, when he was not, his 8 performance declined and became inconsistent. Id. Honeywell produces Delgado’s 2015 and 2016 9 performance assessments attesting to these deficiencies. See 2015 Performance Assessment 10 (noting that Delgado “needs to improve on . . . expense reporting, time reporting”, “reviewing 11 reports prior to submitting them to internal or external customers” and citing “customer 12 dissatisfaction” regarding report “submitted with errors”; and attendance and availability issues); 13 see also 2016 Performance Assessment (citing issues with Delgado’s “attendance and compliance 14 to core working hours [and] requesting time off”; and adherence to “chain of command”).2 While
15 Delgado received a 2-block rating in 2016, the company’s internal investigation revealed that this 16 score was given in error; Parker explained that Delgado should have received a 5-block rating, but 17 the mistake was never rectified or communicated to him.3 See Business Conduct Incident Report 18 at 7, 27. Next, Honeywell demonstrates that these very same issues continued throughout the first 19
20 2 Delgado also alleges he was faced with “unfair ridicule and was the butt of ongoing racially motivated jokes by [] Davis.” Pl.’s Resp. at 3. However, he concedes that “Where’s Marcus?” is the only example of these alleged jokes. 21 His supervisors declare that they were often concerned with Delgado’s attendance and continued absences from the office; Honeywell’s investigation and his performance reviews confirm as much. As such, the Court finds that 22 Delgado fails to provide any evidence to support his allegation with respect to this claim. 3 According to Honeywell’s performance scale, a 2-block rating indicates that Delgado exceeded Honeywell’s standards for meeting “his targets for most goals with respect to quality and quantity and delivered these results on or 23 ahead of schedule” and met Honeywell’s standards for “demonstrate[ing] expected behaviors overall.”; while a 5- block rating indicates that Delgado performed “at Honeywell standards” with respect to these targets and behaviors. See 2016 Performance Assessment at 3, Dkt. No. 29-2. 1 half of 2017. Parker, Ivie, and Davis all testify that Delgado consistently failed to provide timely 2 cost reports and thorough explanations of cost variances for the PPRs during that time. Honeywell 3 demonstrates that, based on these concerns, he was given an overall rating of a 6-block indicating 4 that his performance fell below Honeywell’s standards. This decision was not Davis’ alone.
5 Honeywell presents testimony that both Parker and Ivie worked closely with Davis to determine 6 his performance rating; both remained involved in supervising him even after Davis became his 7 manager. 8 Another example Delgado proffers as evidence of Davis’ racial discrimination is her 9 refusal to meet with him face-to-face to deliver his 2017 mid-year review, unlike her in-person 10 meetings with his colleagues. Pl.’s Resp. at 3 (citing Delgado Dep. 81-83). Delgado explains that 11 his original performance review was rescheduled by management to July 28, 2017; on the 12 rescheduled date, he was out of the office on sick leave and requested that his evaluation be 13 postponed so that “the review could be conducted in person as was done for other team members.” 14 Id. Instead, “Davis refused this request and insisted [he] attend [the] virtual meeting despite his
15 illness.” Id. Davis and her supervisor Parker telephonically delivered his evaluation, despite his 16 request to postpone the meeting. Id.; Davis Decl. ¶ 10; Parker Decl. ¶ 10. 17 Honeywell establishes a legitimate, non-discriminatory reason for Davis’ refusal to 18 reschedule Delgado’s mid-year review while he was out on sick leave; and her decision to conduct 19 it by phone instead. Honeywell cites as evidence the findings of its internal investigation, which 20 indicates that July 28, 2017 – the day of Delgado’s scheduled review – was the internal deadline 21 for PP&C management to finish delivering its mid-year reviews. See Business Conduct Incident 22 Report at 9. The investigation also revealed that PP&C management “made the call to have him 23 call in because he called in for other meetings earlier that day.” Id. at 27. Honeywell acknowledges 1 Delgado’s review should have been “delivered face to face” and later coached Davis, Parker, and 2 Ivie on this issue. Id. at 9. Based on this evidence, the Court finds that Honeywell has articulated 3 legitimate, nondiscriminatory reasons for giving Delgado a negative mid-year evaluation and PIP. 4 Because Honeywell has met its burden of production to establish a legitimate basis for the
5 adverse employment actions, the burden shifts back to Delgado to offer evidence that Honeywell’s 6 explanation is pretextual. Id. Delgado can demonstrate pretext “either directly by persuading the 7 court that a discriminatory reason more likely motivated the employer or indirectly by showing 8 that the employer’s proffered explanation is unworthy of credence.” Chuang v. University of 9 California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Burdine, 450 U.S. 10 at 256). 11 Delgado does neither. In an attempt to establish pretext, he testifies that his “unsatisfactory 12 review came as a complete shock” noting he “could not find any explanation for this substandard 13 and inconsistent review other than discrimination.” Pl.’s Resp. at 2. He points to the “satisfactory 14 ratings on his previous performance review” and Davis’ failure to address his performance issues
15 at any of their previous one-on-one meetings as evidence to rebut Honeywell’s explanation. Id. As 16 stated above, Honeywell submitted to the Court Delgado’s 2015 and 2016 evaluations, which 17 reference many of same performance issues Delgado claims Davis “waited to spring . . . on . . . 18 him as a pretext to place him” on a PIP. Id. at 3. There is no doubt that Delgado was aware of these 19 issues, many of which he had been coached on since 2014. Delgado also offers his own testimony 20 to refute the deficiencies raised in his mid-year review claiming it “contained a number of 21 subjective measurements and errors in calculating subjective standards.”; he offers this as evidence 22 of Davis’ discriminatory intent. Id. at 3. Delgado’s subjective beliefs are contradicted by the 23 1 testimony of all three of his managers, each of whom attested that Delgado’s performance was 2 inconsistent and that he struggled to timely submit his assigned deliverables. 3 ii. Business Travel & Trainings 4 Delgado also proffers as an example of Davis’ discriminatory intent is that she denied him
5 opportunities that were granted to other employees, such as his ability to “travel for work— 6 impacting his ability to receive training, attend meetings, and properly service customers.” Pl.’s 7 Resp. at 4 (citing Delgado Dep. 128-130). 8 Honeywell provides several legitimate, nondiscriminatory reasons for denying Delgado’s 9 requests for travel and associated trainings. First, Honeywell argues that a typical PP&C analyst, 10 like Delgado, is only required to travel one to two times per year; the role can otherwise be 11 performed remotely. See Business Conduct Incident Report at 8; Davis Decl. ¶ 14. Honeywell 12 contends Delgado traveled significantly more than his peers establishing that he traveled at least 13 eight times in 2016. See Business Conduct Incident Report at 10; Davis Decl. ¶ 15. Delgado 14 concedes as much and acknowledges he timed his business trips to Phoenix, Arizona with family
15 visits. Id.; Delgado Dep. 79:16-19; 81:3-5. Honeywell also submits evidence that Delgado’s latest 16 travel request violated company policy because he attempted to charge his travel to a different 17 program than the one that he requested. See Business Conduct Incident Report at 10. Lastly, 18 Honeywell substantiates Delgado filed excessive travel requests – a statement memorialized in 19 both his 2017 mid-year review and the interviews conducted during the investigation into his 20 complaints. Id.; see also Delgado 2017 Mid-Year Review at 2 (stating “Marcus’ team requests for 21 him to travel to their location in order to work with him; these requests far exceed that of his peers, 22 who also support virtually.”). The internal investigation also confirmed the frequency of Delgado’s 23 travel requests noting that “[i]n the past, [he] typically travels to [Phoenix] 8 times per year for 1 work [and] during these work visits [he] also spends time with his family in [Phoenix]”. See 2 Business Conduct Incident Report at 4. It also confirmed that Delgado applied for travel more 3 frequently than necessary for a typical PP&C analyst with the company; traveled more frequently 4 than his colleagues in the same role in the years prior; incorrectly charged his most recent travel
5 request to a different program than the one he requested; and unnecessarily requested travel to 6 client sites. Id. at 10. 7 Delgado fails to offer specific and substantial evidence that Honeywell’s explanations are 8 pretextual. Id. First, he contends Honeywell’s explanations – that PP&C analysts need only travel 9 to client sites twice per year and that this policy limited unnecessary travel – “were applied 10 subjectively and inconsistently” and “not communicated” to him. Pl.’s Resp. at 4. Aside from his 11 subjective brief, he provides no evidence to support his assertions. See Bergene v. Salt River 12 Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) (holding that 13 circumstantial evidence of pretext must be “specific and substantial” in order to survive summary 14 judgment). While Delgado testifies that his colleagues were granted travel opportunities, he
15 provides no substantiation for this testimony. Pl.’s Resp. at 11. 16 The Court therefore finds that Honeywell has catalogued a lengthy record of Delgado’s 17 professional deficiencies and unnecessary travel requests in recorded documents compiled over 18 several years; and that Delgado has failed to produce contrary evidence to demonstrate that a 19 reasonable jury could rationally find Honeywell’s proffered explanation unworthy of credence. 20 Thus, Honeywell is entitled to summary judgment on Delgado’s discrimination claim. 21 B. Retaliation 22 The Court next turns to Delgado’s retaliation claims under Title VII and the WLAD. 23 Compl. ¶¶ 4.1–4.5. Honeywell moves for summary judgment contending that the undisputed 1 material facts show he did not suffer an adverse employment action; and no reasonable jury could 2 find that Honeywell’s proffered reasons for its actions were based on retaliation. Id. The 3 McDonnell burden shifting analysis applies to Delgado’s retaliation claims. Therefore, Delgado 4 must first establish a prima facie case of retaliation by showing (1) he engaged in a protected
5 activity; (2) he suffered an adverse employment action; and (3) there was a causal connection 6 between the two.” Surrell, 518 F.3d at 1108 (citing Bergene, 272 F.3d at 1140–41) (Title VII); 7 Francom v. Costco Wholesale Corp., 991 P.2d 1182, 1191 (2000) (WLAD). 8 The parties do not dispute that Delgado engaged in a protected activity by filing an internal 9 complaint of discrimination on August 2, 2017. However, Honeywell disputes that Delgado 10 establishes that he suffered an adverse employment action after filing this grievance. Def.’s Mot. 11 Summ. J. at 13-15. An adverse employment action is one that a reasonable employee would find 12 materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker 13 from making or supporting a charge of discrimination.’” Burlington Northern & Sante Fe Ry. Co. 14 v. White, 548 U.S. 53, 57 (2006). “At the summary judgment stage, the Court need only determine
15 whether Plaintiff has presented substantial evidence for the jury to find that Defendant’s action 16 would have dissuaded a reasonable worker from making or supporting a charge of unlawful 17 conduct by Defendant.” Edman v. Kindred Nursing Centers West, L.L.C., No. 14-CV-01280, 2016 18 WL 6836884, at *7 (W.D. Wash. Nov. 21, 2016) (citing Burlington, 548 U.S. at 57). 19 Delgado claims he was subject to the following adverse actions by Davis after filing a 20 complaint against her: 1) she denied his requests for travel and telework; 2) she failed to register 21 him for the requisite training course to complete his PIP; and 3) she blocked his ability to be 22 considered for a promotional opportunity in September 2017. Pl.’s Resp. 11-13. This Court has 23 already determined, supra, that Delgado fails to offer evidence that Honeywell’s explanation for 1 his denied travel requests was pretextual. Specific to his retaliation claim, Delgado also fails to 2 demonstrate that any of his travel requests were denied after August 2, 2017, the date of his 3 protected activity. To the contrary, Delgado he testifies that his requests were denied between April 4 and July of 2017—in other words, before he filed the internal complaint. Thus, these denials could
5 not have been done in retaliation for his protected activity. Delgado Dep. 77:14-24. 6 Another instance that Delgado submits as an example of Davis’ retaliatory behavior 7 towards him is that she hindered his ability “to complete the steps in his PIP [by] refus[ing] to 8 allow him to register [for the necessary training] despite other team members [allegedly] being 9 registered without making any requests what-so-ever.” Pl.’s Resp. at 4 (citing Delgado Dep. 128- 10 130); see also Delgado PIP at 4 (listing requirement to “complete[] the necessary training to be at 11 the Bronze for schedule and Silver for cost” by September 28, 2017). He testifies that Davis and 12 Parker did not automatically enroll him in the August session “to make sure that [he] completed” 13 his PIP; when he eventually took the initiative to request that he be registered for the September 14 session, he claims “it was [] difficult for [him] to get in at that point.” Delgado Dep. 126:10-
15 127:25. He concludes “from the discrimination aspect, there were other employees on [his] team 16 who were registered for courses because it’s a management only directive”, id. at 127:7-12; and 17 alleges they “did not take the same approach for” him, id. at 128:9-10. 18 With respect to this claim, Honeywell proffers evidence that Delgado did not ask Davis or 19 Parker to register him for the August session. Id. at 126:12-129:14. Instead, Honeywell argues, it 20 had to remind Delgado through email correspondence to follow up on the required, incomplete 21 courses he needed to fulfill for his PIP. Id. at 128:11-134:18. Delgado acknowledges receiving this 22 correspondence and he does not dispute that he never asked his supervisors to register him for the 23 August training, id. at 131:21-132-2. Despite this evidence, Delgado still maintains that he 1 expected management to automatically enroll him in the training courses. Aside from his testimony 2 that Davis and Parker “enrolled everyone else . . . on the team [without them] having to ask”, 3 Delgado fails to proffer anything more than his speculative belief to substantiate his claim; he 4 could not point to any conversations where this was communicated to him nor could he establish
5 that any of his colleagues were on a PIP and similarly working to fulfill these courses as a 6 requirement. Id. at 128:5-10; 130:15-131:8. As such, the Court finds no evidence to substantiate 7 his claim. 8 Lastly, as an example of Davis’ retaliatory behavior, Delgado points to an incident from 9 September 2017 where she “blocked and prevented” him from interviewing for a PMOS Portfolio 10 Manager position, which was “one level up” from the Sr. PP&C Analyst role; he claims the 11 position was reopened so he could apply. Id. at 136:2-137:9; 140:19-24. He testifies that an 12 internal manager “highly recommended” him for this role “based on [his] credentials and . . . 13 qualifications.” Id. at 117:8-12. A month after submitting his grievance, Delgado followed up with 14 the internal manager and he claims that he then learned he was “blocked from interviewing” for
15 the position by Davis. Id. at 117:18-19. The parties disagree as to the characterization of the 16 incident; Honeywell contends it was not an existing position while Delgado classifies it as a 17 promotional opportunity. Assuming Honeywell refused to consider Delgado for a promotion a 18 month after he filed his internal complaint against Davis, he establishes a prima facie showing of 19 retaliation. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (listing “a refusal 20 to consider for promotion” as an “employment decision[] that can constitute an adverse 21 employment action”); see also Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 786 22 (9th Cir. 1986) (same). 23 1 In response, Honeywell produces the following evidence of a legitimate basis for its 2 decision. First, the Portfolio Manager position for which Delgado applied was cancelled and never 3 filled. Bore Decl. ¶ 12; Delgado Dep. 137:4-12. Next, Davis informed the hiring manager that 4 Delgado was not eligible to interview for the position because of her good faith belief that he was
5 not eligible for an internal transfer pending completion of his PIP. Davis Decl. ¶¶ 19-20. Delgado 6 is unable to offer evidence that these articulated reasons are pretextual and therefore cannot meet 7 his respective burden within the retaliation framework to preclude summary judgment. The Court 8 therefore finds it appropriate to grant Honeywell’s motion for summary judgment on Delgado’s 9 retaliation claim.4 10 C. FMLA Claim
11 The FMLA allows covered employees “up to twelve weeks of leave each year for their 12 own serious illnesses or to care for family members, and guarantees them reinstatement after 13 exercising their leave rights.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 (9th Cir. 14 2001) (citing 29 U.S.C. §§ 2612(a)(1), 2614(a)(1)). To successfully claim a case of interference 15 under the FMLA, Delgado must demonstrate that Honeywell interfered with, restrained, or denied 16 his exercise of FMLA rights; and that he was prejudiced by the violation. 29 U.S.C. § 2615(b)(2). 17 See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002); see also McDaniels v. Grp. 18 Health Co-op., 57 F. Supp. 3d 1300, 1316 (W.D. Wash. 2014) (“[F]or an employee to obtain relief 19 under the FMLA, the asserted violation must result in prejudice to the employee.”). 20
21 4 Delgado also alleges constructive discharge based on the same evidence cited in support of his claims for discrimination and retaliation. See Pl.’s Resp. at 12-13. The Court finds that Delgado fails to substantiate a showing 22 or to create a triable issue of fact that his working conditions were so “intolerable and discriminatory” that a reasonable person in his position would have felt that he had no choice but to resign. See Penn. State Police v. Suders, 542 U.S. 129, 141 (2004). Although his work environment may have been stressful for him, the evidence does not meet the 23 standard under federal and state law that the conditions were so “extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his [] employer.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). 1 Delgado cannot survive summary judgment on this claim because all his requests for 2 continuous medical leave were approved. He applied for and was granted a leave of absence, 3 beginning on October 4, 2017 and lasting through December 25, 2017. See Cigna’s Notice of 4 Delgado’s Medical Leave at 2. After Delgado exhausted his initial twelve weeks of FMLA leave,
5 Delgado Dep. 156:16-24, he received an additional fifteen months of leave per Honeywell’s 6 policy, Cigna’s April 4, 2019 Letter to Delgado at 2. He was not denied any benefits to which he 7 was entitled, receiving a total of over eighteen months of leave. Delgado concedes as much. 8 Delgado Dep. 156:16-24; 181:6-10. 9 Delgado attempts to support his claim of interference citing that Honeywell wrongfully 10 terminated his position after “negligently rel[ying] upon [Cigna] to manage its FMLA claims . . . 11 despite [its] knowledge that this . . . company was known to make errors”, Pl.’s Resp. at 14. Due 12 to his ongoing health conditions, Delgado applied to extend his leave of absence prior to December 13 25, 2017, the day his FMLA leave was set to expire. See Cigna’s April 4, 2019 Letter to Delgado 14 at 2. Despite following Honeywell’s procedures for requesting an extension of his leave,
15 Honeywell terminated his employment with the company, for job abandonment, effective January 16 11, 2018. 17 Honeywell denies interfering with Delgado’s FMLA rights noting that his later-rescinded 18 termination was “based on an honest mistake” and its delayed receipt of his notice of intent to 19 extend his leave of absence. It proffers evidence to establish that it “did not receive timely 20 notification from Cigna that [Delgado] had applied to extend his leave beyond December 25, 21 2017”; and it did not hear back from Delgado in response to its inquiries into his expected return 22 date. See Def.’s Mot. Summ. J. at 7 (citing Bore Decl. ¶ 7; Davis Decl. ¶ 24; Delgado Dep. 157:19- 23 159:21). It also submits communications dated January 5, 2018, in which Cigna notifies 1 Honeywell that Delgado had not contacted the company regarding his intent to extend his leave 2 beyond December 25, 2017. See Cigna’s Email Chain to Honeywell HR at 2-4, Dkt. No. 32-3). 3 The Court finds that Delgado provides no factual evidence—whatsoever—to support his 4 claim that Honeywell prevented him from “exercising his right to return to work . . . despite his
5 continued compliance with company policy for extended medical leave.” Pl.’s Resp. at 14. First, 6 Delgado’s claim fails as a matter of law because Honeywell terminated Delgado’s employment 7 for job abandonment, effective January 11, 2018, “after completion of his FMLA leave.” Id. Next, 8 Honeywell acknowledges it terminated his position “based on an honest mistake” after receiving 9 incorrect information from Cigna that Delgado had not applied to extend his medical leave beyond 10 December 25, 2017. Def.’s Mot. Summ. J. at 16. Delgado’s failure to respond to Honeywell’s 11 inquiries regarding his scheduled return date, January 2, 2018, also suggested he had no interest in 12 resuming his employment with the company.5 13 Lastly, Delgado suffered no harm from his brief termination. See Ragsdale, 535 U.S. at 89 14 (holding the FMLA “provides no relief unless the employee has been prejudiced by the
15 violation.”). Once Honeywell received the correct information that Delgado had applied to extend 16 his leave of absence, the company immediately retracted its termination decision on January 30, 17 2018 and fully reinstated his employment back to the date he was terminated. Bore Decl. ¶ 8; 18 Delgado Dep. 160:1-23. Delgado’s benefits were also reinstated retroactively. Id.; see Crawford 19 v. JP Morgan Chase NA, 983 F. Supp. 2d 1264, 1271 (W.D. Wash. 2013) (citing Washburn v. 20 Gymboree Retail Stores, Inc., 2012 WL 5360978, at *7 (W.D. Wash. Oct. 30, 2012)) (“[E]ven if 21 22 5 Honeywell attempted to contact Delgado through text messages and voicemail – via Davis and its Human Resources Department – on December 22, 2017 and on January 2, 3, and 4, 2018. Davis Decl. ¶ 23; Delgado Dep. 154:19-155:24. 23 Although Honeywell attempted contact him regarding his expected return date, January 2, 2018, Delgado does not recall receiving those communications or having any contact with Honeywell between October 4, 2017 and December 25, 2017, when he was on FMLA leave, or anytime thereafter. Delgado Dep. 154:19-155:24. 1 there is a technical violation under FMLA, an employee who does not suffer any harm and receives 2 all leave requested is not entitled to relief under the FMLA.”). The Court therefore finds that 3 Delgado cannot make a claim of FMLA interference because he was not denied any leave; and 4 was not prejudiced from his brief and later-rescinded termination. Accordingly, Honeywell’s
5 Motion for Summary Judgment as to Delgado’s claim of FMLA interference is granted. 6 D. Negligent Infliction of Emotional Distress 7 Washington courts have long recognized that common law tort claims, such as negligent 8 infliction of emotional distress (“NIED”), must be dismissed as duplicative when they are based 9 on the same underlying facts as a discrimination claim. See Wahlman v. DataSphere Techs., Inc., 10 2014 WL 794269, at *13 (W.D. Wash. Feb. 27, 2014) (citing Francom, 991 P.2d at 1192–93) (“an 11 employee may recover damages for emotional distress in an employment context but only if the 12 factual basis for the claim is distinct from the factual basis for the discrimination claim”); see also 13 Ellorin v. Applied Finishing, Inc., 996 F. Supp. 2d 1070, 1093–94 (W.D. Wash. 2014) (dismissing 14 state law claim for negligent infliction of emotional distress as duplicative of discrimination claim
15 under WLAD). However, when a plaintiff alleges the “non-discriminatory conduct caused separate 16 emotional injuries, he or she may maintain a separate claim for negligent infliction of emotional 17 distress.” Francom, 991 P.2d at 1192. 18 The Court finds Delgado’s NIED claim is based on the same factual allegations underlying 19 his WLAD claims for discrimination and retaliation. Delgado concedes as much. Delgado Dep. 20 15:15-21 (“Davis’ [sic] behavior is alleged to have been racially motivated, but many of the facts 21 and alleged claims do not relate exclusively to her discriminatory actions—they additionally rest 22 in Honeywell’s [sic] inappropriate, hostile, and retaliatory actions taken against [] Delgado for his 23 1 |/complaints and use of FMLA benefits.”).° Therefore, Delgado’s NIED claim and his WLAD 2 ||claims are barred as duplicative because they are based on the same, overlapping factual 3 || allegations. As such, Honeywell’s motion for summary judgment on Delgado’s state law claim for 4 || negligent infliction of emotional distress is GRANTED. 5 V. CONCLUSION 6 For the foregoing reasons, the Court GRANTS Honeywell’s Motion for Summary 7 || Judgment as to: 8 (1) Plaintiffs claims for discrimination and retaliation pursuant to the Title VII; 9 (2) Plaintiffs claims for discrimination and retaliation pursuant to the Washington Law 10 Against Discrimination; 11 (3) Plaintiffs claims for interference with his rights pursuant to the Family Medical Leave 12 Act; and 13 (4) Plaintiff's state law claims for negligent infliction of emotional distress. 14 15 ISSO ORDERED. 16 DATED this 25" day of November, 2020. fy [eben 17 BARBARA J. ROTHSTEIN 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 6 Delgado’s reliance on Wahiman is also misplaced. See Wahlman, 2014 WL 794269, at *13 (finding plaintiff 23 |! presented sufficient evidence to establish ‘there were some e-mails that, if not sexist in nature, were disturbing and supported their emotional distress claims.”). Here, Delgado provides no distinct, non-discriminatory evidence — whatsoever — to support his position.