1 HONORABLE RICHARD A. JONES
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10 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 12 AT SEATTLE 13 14 MASSAMBA DJITTE, CIVIL ACTION NO. 2:19-cv-00480-RAJ 15 Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 16 vs. 17 DELTA GLOBAL SERVICE, 18 Defendant. 19 This matter is before the Court on Defendant’s motion for summary judgment. 20 Dkt. # 23. For the following reasons, Defendant’s motion is GRANTED. 21 I. BACKGROUND 22 Pro se Plaintiff Massamba Djitte (“Plaintiff” or “Mr. Djitte”) is a former employee 23 of Defendant Delta Global Service (“Defendant” or “Delta”). Dkt. # 1-1. On October 24 20, 2017, Plaintiff alleges that his coworker, Akesa Feaomoeata, directed a racial slur at 25 1 him. Dkt. # 1-1 at ¶ 2. Plaintiff reported the incident to upper management but alleges 2 Delta did not take appropriate measures to resolve the issue. Id. After the incident, 3 Plaintiff stopped coming to work. Dkt. # 25, Ex. I. On December 18, 2017, Delta 4 terminated Plaintiff’s employment on the basis of job abandonment. Dkt. # 25 at ¶ 35, 5 Ex. L. 6 On March 8, 2019, Plaintiff brought suit against Delta in King County Superior 7 Court. Dkt. # 1-1. Although not entirely clear from the complaint, it appears that 8 Plaintiff is asserting a hostile work environment claim and possibly discrimination or 9 retaliation claims. Defendant timely removed to this Court. Dkt. # 1. Defendant now 10 moves for summary judgment. Dkt. # 23. 11 II. LEGAL STANDARD 12 Summary judgment is appropriate if there is no genuine dispute as to any material 13 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 14 56(a). The moving party bears the initial burden of demonstrating the absence of a 15 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 16 Where the moving party will have the burden of proof at trial, it must affirmatively 17 demonstrate that no reasonable trier of fact could find other than for the moving party. 18 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where 19 the nonmoving party will bear the burden of proof at trial, the moving party can prevail 20 merely by pointing out to the district court that there is an absence of evidence to support 21 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets 22 the initial burden, the opposing party must set forth specific facts showing that there is a 23 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, 24 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most 25 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. 1 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). 2 However, the court need not, and will not, “scour the record in search of a genuine 3 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also 4 White v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not 5 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to 6 wade through and search the entire record for some specific facts that might support the 7 nonmoving party’s claim”). The opposing party must present significant and probative 8 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 9 952 F.2d 1551, 1558 (9th Cir. 1991). 10 III. DISCUSSION 11 A. Hostile Work Environment 12 To establish a prima facie case for a hostile work environment under Title VII or 13 the Washington Law Against Discrimination, a plaintiff must show that: 1) he was 14 subjected to verbal or physical conduct because of his membership in a protected class, 2) 15 the conduct was unwelcome, and 3) the conduct was sufficiently severe or pervasive to 16 alter the conditions of the plaintiff’s employment and create an abusive work 17 environment. Meritor v. Savings Bank v. Vinson, 477 U.S. 57 (1986); Manatt v. Bank of 18 America, 339 F.3d 792, 798 (9th Cir. 2003). 19 Courts must look at the totality of the circumstances when making a determination 20 of whether a hostile work environment exists. Faragher v. City of Boca Raton, 524 U.S. 21 775, 787 (1998). This determination includes examining “the frequency of the 22 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 23 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 24 work performance.” Id. at 787–88 (internal citation and quotation omitted). The hostile 25 work environment standard is a demanding one and the conduct must be “extreme” 1 before it can “amount to a change in the terms and conditions of employment.” Faragher 2 v. City of Boca Raton, 524 U.S. 775, 788 (1998). 3 Here, Plaintiff’s case is premised entirely on the October 20, 2017 incident. In 4 response, Delta offers evidence that it took remedial actions immediately following the 5 incident, including speaking with Plaintiff and his coworker, Akesa Feaomoeata, and 6 issuing Ms. Feaomoeata a Corrective Action Notice. Dkt. # 27 at ¶¶ 3-5; Dkt. # 25 at ¶ 7 20; Dkt. # 25, Ex. H. Delta also contacted Plaintiff and assured him that Ms. Feaomoeata 8 had been disciplined and he would no longer need to work with her. Dkt. # 25 at ¶ 20. 9 Plaintiff, for his part, does not dispute that his claim is based entirely on the 10 October 20, 2017 incident. And while Plaintiff accuses Delta of being “fraudulent and 11 dishonest” and expresses concerns regarding the “validity” Delta’s evidence (Dkt. # 29 at 12 4), he offers no evidence to support these claims beyond his own uncorroborated 13 allegations and inadmissible exhibits that are not authenticated or otherwise attested to 14 under the penalty of perjury. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 15 Although the Court appreciates Plaintiff is proceeding pro se, “[t]he summary judgment 16 rules apply with equal force to pro se litigants because they must follow the same rules of 17 procedures that govern other litigants.” Banks v. Soc’y of St. Vincent De Paul, 143 F. 18 Supp. 3d 1097, 1101 (W.D. Wash. 2015) (internal quotations omitted). Uncorroborated 19 allegations and “self-serving testimony” will not create a genuine issue of material fact. 20 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 21 Here, the conduct complained about by Mr. Djitte simply does not rise to the level 22 of creating a cognizable hostile work environment claim. See e.g. Vasquez v. Cty.
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1 HONORABLE RICHARD A. JONES
4 5 6
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10 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 12 AT SEATTLE 13 14 MASSAMBA DJITTE, CIVIL ACTION NO. 2:19-cv-00480-RAJ 15 Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 16 vs. 17 DELTA GLOBAL SERVICE, 18 Defendant. 19 This matter is before the Court on Defendant’s motion for summary judgment. 20 Dkt. # 23. For the following reasons, Defendant’s motion is GRANTED. 21 I. BACKGROUND 22 Pro se Plaintiff Massamba Djitte (“Plaintiff” or “Mr. Djitte”) is a former employee 23 of Defendant Delta Global Service (“Defendant” or “Delta”). Dkt. # 1-1. On October 24 20, 2017, Plaintiff alleges that his coworker, Akesa Feaomoeata, directed a racial slur at 25 1 him. Dkt. # 1-1 at ¶ 2. Plaintiff reported the incident to upper management but alleges 2 Delta did not take appropriate measures to resolve the issue. Id. After the incident, 3 Plaintiff stopped coming to work. Dkt. # 25, Ex. I. On December 18, 2017, Delta 4 terminated Plaintiff’s employment on the basis of job abandonment. Dkt. # 25 at ¶ 35, 5 Ex. L. 6 On March 8, 2019, Plaintiff brought suit against Delta in King County Superior 7 Court. Dkt. # 1-1. Although not entirely clear from the complaint, it appears that 8 Plaintiff is asserting a hostile work environment claim and possibly discrimination or 9 retaliation claims. Defendant timely removed to this Court. Dkt. # 1. Defendant now 10 moves for summary judgment. Dkt. # 23. 11 II. LEGAL STANDARD 12 Summary judgment is appropriate if there is no genuine dispute as to any material 13 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 14 56(a). The moving party bears the initial burden of demonstrating the absence of a 15 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 16 Where the moving party will have the burden of proof at trial, it must affirmatively 17 demonstrate that no reasonable trier of fact could find other than for the moving party. 18 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where 19 the nonmoving party will bear the burden of proof at trial, the moving party can prevail 20 merely by pointing out to the district court that there is an absence of evidence to support 21 the non-moving party’s case. Celotex Corp., 477 U.S. at 325. If the moving party meets 22 the initial burden, the opposing party must set forth specific facts showing that there is a 23 genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, 24 Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most 25 favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. 1 Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). 2 However, the court need not, and will not, “scour the record in search of a genuine 3 issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); see also 4 White v. McDonnel-Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (the court need not 5 “speculate on which portion of the record the nonmoving party relies, nor is it obliged to 6 wade through and search the entire record for some specific facts that might support the 7 nonmoving party’s claim”). The opposing party must present significant and probative 8 evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 9 952 F.2d 1551, 1558 (9th Cir. 1991). 10 III. DISCUSSION 11 A. Hostile Work Environment 12 To establish a prima facie case for a hostile work environment under Title VII or 13 the Washington Law Against Discrimination, a plaintiff must show that: 1) he was 14 subjected to verbal or physical conduct because of his membership in a protected class, 2) 15 the conduct was unwelcome, and 3) the conduct was sufficiently severe or pervasive to 16 alter the conditions of the plaintiff’s employment and create an abusive work 17 environment. Meritor v. Savings Bank v. Vinson, 477 U.S. 57 (1986); Manatt v. Bank of 18 America, 339 F.3d 792, 798 (9th Cir. 2003). 19 Courts must look at the totality of the circumstances when making a determination 20 of whether a hostile work environment exists. Faragher v. City of Boca Raton, 524 U.S. 21 775, 787 (1998). This determination includes examining “the frequency of the 22 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 23 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 24 work performance.” Id. at 787–88 (internal citation and quotation omitted). The hostile 25 work environment standard is a demanding one and the conduct must be “extreme” 1 before it can “amount to a change in the terms and conditions of employment.” Faragher 2 v. City of Boca Raton, 524 U.S. 775, 788 (1998). 3 Here, Plaintiff’s case is premised entirely on the October 20, 2017 incident. In 4 response, Delta offers evidence that it took remedial actions immediately following the 5 incident, including speaking with Plaintiff and his coworker, Akesa Feaomoeata, and 6 issuing Ms. Feaomoeata a Corrective Action Notice. Dkt. # 27 at ¶¶ 3-5; Dkt. # 25 at ¶ 7 20; Dkt. # 25, Ex. H. Delta also contacted Plaintiff and assured him that Ms. Feaomoeata 8 had been disciplined and he would no longer need to work with her. Dkt. # 25 at ¶ 20. 9 Plaintiff, for his part, does not dispute that his claim is based entirely on the 10 October 20, 2017 incident. And while Plaintiff accuses Delta of being “fraudulent and 11 dishonest” and expresses concerns regarding the “validity” Delta’s evidence (Dkt. # 29 at 12 4), he offers no evidence to support these claims beyond his own uncorroborated 13 allegations and inadmissible exhibits that are not authenticated or otherwise attested to 14 under the penalty of perjury. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 15 Although the Court appreciates Plaintiff is proceeding pro se, “[t]he summary judgment 16 rules apply with equal force to pro se litigants because they must follow the same rules of 17 procedures that govern other litigants.” Banks v. Soc’y of St. Vincent De Paul, 143 F. 18 Supp. 3d 1097, 1101 (W.D. Wash. 2015) (internal quotations omitted). Uncorroborated 19 allegations and “self-serving testimony” will not create a genuine issue of material fact. 20 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 21 Here, the conduct complained about by Mr. Djitte simply does not rise to the level 22 of creating a cognizable hostile work environment claim. See e.g. Vasquez v. Cty. of Los 23 Angeles, 349 F.3d 634, 643-44 (9th Cir. 2003) (holding that alleged harassing conduct, 24 including two racial epithets directed at the plaintiff, was insufficient to create a hostile 25 work environment); Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir.1990) (finding 1 no hostile work environment despite allegations that the employer posted a racially 2 offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, 3 provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino 4 officers, and kept illegal personnel files on plaintiffs because they were Latino). 5 Plaintiff’s hostile work environment claim fails as a matter of law. 6 B. Employment Discrimination 7 To establish a prima facie case of discrimination under Title VII, a plaintiff must 8 provide evidence that: (1) he was qualified for the position and doing satisfactory work, 9 (2) he is a member of a protected class, (3) he suffered an adverse employment action, 10 and (4) he was treated less favorably than similarly situated individuals who are not 11 members of the protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 12 (1973). The McDonnel Douglas framework has been adopted by the Washington 13 Supreme Court when reviewing WLAD claims. Wong v. Wells Fargo Bank, No. C10- 14 0180-JCC, 2011 WL 4063207, at *2 (W.D. Wash. Sept. 13, 2011). However, for WLAD 15 claims, employees may also satisfy the pretext prong of the McDonnell Douglas 16 framework by offering evidence that discrimination was a “substantial factor” in the 17 employer’s decision to take adverse employment action. Scrivener v. Clark Coll., 181 18 Wash. 2d 439, 441 (2014). If the plaintiff succeeds in making out a prima facie case, the 19 burden shifts to the defendant to provide a legitimate nondiscriminatory reason for its 20 actions. If the defendant meets that burden, the plaintiff must in turn show that the 21 articulated reason was merely a pretext for a discriminatory purpose. McDonnell 22 Douglas, 411 U.S. at 802–04. 23 Here, there is no doubt that Plaintiff is a member of a protected class and that he 24 was subject to an adverse employment action as a result of his termination. Therefore, to 25 establish a prima facie case, Plaintiff must show he was performing his job satisfactorily 1 and that similarly situated employees not in his protected class received more favorable 2 treatment. Plaintiff has not established a prima facie case of discrimination. 3 First, he has not shown that he was performing satisfactorily. Plaintiff does not 4 dispute that he had attendance issues before the October 20, 2017 incident (Dkt. # 25 at 5 ¶¶ 10-16), or that he stopped coming to work entirely after the incident (Dkt. # 25, Ex. I). 6 Second, Plaintiff does not allege or offer any evidence to show that he was treated less 7 favorably than similarly situated individuals who are not members of his protected class. 8 Because Plaintiff has not met his initial burden on essential elements of his 9 discrimination claim, Plaintiff’s discrimination claim fails as a matter of law. 10 Even if he were able to make out a prima facie case of discrimination, Delta easily 11 meets its burden to show a legitimate nondiscriminatory reason for terminating Plaintiff's 12 employment. Delta offers substantial evidence to support its claims that Plaintiff had 13 attendance issues before the October 20, 2017 incident, and that Plaintiff stopped coming 14 to work entirely after the incident. Dkt. # 25 at ¶¶ 10-16, 28-33, Ex. I. Additionally, the 15 record shows that Delta attempted multiple times to convince Mr. Djitte to return to work 16 after the incident, but he refused. Dkt. # 27 at ¶¶ 3-7; Dkt. # 25 at ¶¶ 20, 24, 29-30; Dkt. # 17 28 at ¶¶ 2-4; Dkt. # 25, Ex. J. 18 Because Defendant has stated a legitimate nondiscriminatory reason for its 19 actions, the burden shifts back to Plaintiff to produce specific, substantial evidence of 20 pretext. He fails to do so. Plaintiff claims that Delta’s explanation for his termination is 21 “simply not true” and that he could not return to work because the company “failed to do 22 something about discrimination at work.” Dkt. # 29 at 4. But Plaintiff’s conclusory 23 assertion of pretext is unsupported by the record currently before the Court. Instead, the 24 record shows that Delta initiated an investigation within days of the incident, issued Ms. 25 Feaomoeata a Corrective Action Notice, and informed her that further misconduct would 1 result in immediate termination. Dkt. # 25 at ¶¶ 5, 39-42, Ex. H. The Court cannot infer 2 pretext from these facts. Viewing the evidence in the light most favorable to Mr. Djitte, 3 the Court finds that he has failed to carry his burden under the McDonnell Douglas 4 framework and Defendant is entitled to summary judgment on his discrimination claim. 5 C. Retaliation 6 Plaintiff’s retaliation claim (to the extent his is asserting one) fails for similar 7 reasons. The standard for retaliation under Title VII and the WLAD is identical, except 8 for the causation element. Under Title VII, Mr. Djitte must establish the “but-for” cause 9 of the adverse employment action, while under the WLAD he must demonstrate that the 10 protected activity was a “substantial factor” in Delta’s decision to take the adverse 11 employment action. Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, No. 18- 12 1171, 2020 WL 1325816, at *3 (U.S. Mar. 23, 2020) (citing Univ. of Tex. Sw. Med. Ctr. 13 v. Nassar, 570 U.S. 338, 346-47 (2013) (affirming but-for causation in Title VII 14 retaliation claims); Allison v. Hous. Auth. of City of Seattle, 118 Wn.2d 79, 95 (1991) 15 (rejecting “but-for” standard of causation in favor of more lenient “substantial factor” 16 standard). 17 As with his discrimination claim, Mr. Djitte must first establish a prima facie case 18 of retaliation, including: (1) that he engaged in a protected activity, (2) that he suffered an 19 adverse employment action, and (3) that there was a causal link between his activity and 20 the employment decision. Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 21 1185, 1196–97 (9th Cir. 2003). If Mr. Djitte is able to assert a prima facie retaliation 22 claim, the “burden shifting” scheme articulated in McDonnell Douglas applies. See 23 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). 24 Mr. Djitte easily satisfies the first two elements: (1) he raised concerns regarding 25 his coworker’s use of a racial slur, and (2) he was terminated. The remaining question, 1 then, is whether there is a causal link between Mr. Djitte reporting the October 20, 2017 2 incident and his subsequent termination. Here, the Court finds there is not. First, 3 Plaintiff does not allege or offer any evidence to show that his decision to report the 4 incident in any way contributed to Delta’s decision to terminate him. Aside from the 5 timing of his termination, the record is void of evidence linking his termination to the 6 protected activity. Further undercutting Plaintiff’s claim is substantial evidence that 7 Delta attempted, on more than one occasion, to convince Mr. Djitte to return to work. 8 Dkt. # 27 at ¶¶ 3-7; Dkt. # 25 at ¶¶ 20, 24, 29-30, Ex. J; Dkt. # 28 at ¶¶ 2-4. Drawing all 9 reasonable inferences in favor of Mr. Djitte, the evidence is insufficient to avoid 10 summary judgment on his retaliation claim. 11 D. Discovery Issues1 12 In opposition to Delta’s motion for summary judgment, Plaintiff revisits his 13 untimely motion to compel the testimony of former Delta employee, Wabi Wagita, who 14 purportedly witnessed the October 20, 2017 incident. Dkt. # 19. The Court previously 15 denied Plaintiff’s motion to compel and will not revisit it here. Dkt. # 34. Plaintiff also 16 alleges that Delta’s discovery responses in connection with this action were incomplete, 17 although Plaintiff did not otherwise move to compel Delta to provide more complete 18 responses. Notably, Plaintiff does not articulate how these discovery requests are likely 19 to yield evidence giving rise to a triable issue of fact. Qualls By & Through Qualls v. 20 Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994) (holding district court 21 does not abuse its discretion in denying further discovery where movant does not 22 articulate how additional discovery would have precluded summary judgment). 23 1 Defendant also filed a motion to compel. Dkt. # 16. However, because the Court is 24 granting Defendant’s motion for summary judgment, Defendant’s motion to compel is 25 terminated as MOOT. Dkt. # 16. To the extent Defendant wishes to apply for fees or costs, it may do so by separate motion. 1 Plaintiff’s untimely and speculative assertion of “discovery issues” is insufficient to 2 preclude summary judgment. 3 IV. CONCLUSION 4 For the foregoing reasons, Defendant’s Motion for Summary Judgment is 5 GRANTED. Dkt. # 23. 6 7 DATED this 7th day of April, 2020.
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9 10 The Honorable Richard A. Jones 11 United States District Judge
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