6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 LINDSAY DROZ, CASE NO. C20-48 RSM
9 Plaintiff, ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING REPORT 10 v. AND RECOMMENDATION
11 BOSTON SCIENTIFIC CORPORATION,
12 Defendant.
13 14 This employment discrimination matter is before the Court on a Report and 15 Recommendation (“R&R”) issued by the Honorable David W. Christel, United States Magistrate 16 Judge. Dkt. #66. Judge Christel recommends that the Court grant Defendant’s motion for 17 summary judgment and dismiss this action. Id. Plaintiff, objecting to the R&R on several bases, 18 asks that the Court not adopt the R&R. Dkt. #67. Defendant responds in support of the Court 19 adopting the R&R. Dkt. #70. Having considered the issues, the Court overrules Plaintiff’s 20 objections, adopts the R&R, and dismisses the action. 21 On objections to a R&R addressing dispositive motions, the Court “must determine de 22 novo any part of the magistrate judge’s disposition that has been properly objected to.” FED. R. 23 CIV. P. 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the findings 24 1 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court addresses 2 Plaintiff’s objections in turn. 3 Plaintiff first objects that “[t]he [R&R] applies the wrong causation standard” and argues 4 that she established a prima facie case of gender discrimination by presenting direct evidence of 5 discriminatory animus that played a substantial part in Defendant’s employment decisions. Dkt.
6 #67 at 1–2 (citing Alonso v. Qwest Commc’ns Co., LLC, 178 Wash. App. 734, 743–44, 315 P.3d 7 610, 615 (2013)). In support, Plaintiff points to a single comment made in 2015 by her manager’s 8 boss—a time the R&R notes is outside of the applicable statute of limitations1—that was 9 unrelated to the employments decisions upon which Plaintiff bases her discrimination claims. Id. 10 at 4. As Defendant points out, Plaintiff fails to provide any legal authority indicating that a prior 11 statement can establish discriminatory animus for later, unrelated employment decisions. Dkt. 12 #70 at 4–5.2 The Court agrees that Plaintiff did not present direct evidence of discrimination 13 related to her actionable claims of discrimination. And even if the 2015 comment was direct 14 evidence of discriminatory animus, Plaintiff does not establish that discriminatory animus played
15 a substantial role in Defendant’s later employment decisions. The objection is overruled. 16 Second, Plaintiff objects that “[t]he [R&R] ignores clear law regarding what constitutes 17 an adverse employment action.” Dkt. #67 at 5. But the Court’s de novo review establishes that 18 the R&R correctly delineated actionable adverse actions. Dkt. #66 at 12–13. In arguing 19 otherwise, Plaintiff relies on authority considering adverse employment actions in the context of 20 retaliation claims where the law looks to actions “reasonably likely to deter employees from 21
1 Dkt. #66 at 12. 22
2 Defendant also point out, as it did in its reply brief in support of its motion for summary 23 judgment, that “stray remarks not directly tied to [a] decision-making process are not direct evidence capable of defeating summary judgment.” Dkt. #70 at 4 (quoting France v. Johnson, 24 795 F.3d 1170, 1173 (9th Cir. 2015)). 1 engaging in protected activity.” Dkt. #67 at 5 (quoting Ray v. Henderson, 217 F.3d 1234, 1243 2 (9th Cir. 2000)) (quotation marks omitted); Dkt. #70 at 5–6 (Defendant noting distinction in 3 context of discrimination and retaliation claims and citing Knight v. Brown, 797 F. Supp. 2d 1107 4 (W.D. Wash. 2011)). Plaintiff’s objection seeks to impermissibly expand what may constitute 5 an adverse employment action for the purposes of her gender discrimination claims.
6 Third, Plaintiff objects that “[t]he [R&R] ignores disputed questions of material fact as 7 to when [Plaintiff] was actually rated ‘needs improvement’” on a performance review. Dkt. #67 8 at 6. But Plaintiff does not establish how these alleged errors would have altered the R&R’s 9 conclusions. As to the “needs improvement” rating, Plaintiff argues, in effect, that the rating 10 demonstrates pretext, failing to appreciate that the R&R found she had failed to establish a prima 11 facie case of gender discrimination.3 Put simply, to the extent the issues of fact are disputed, 12 they are not material. 13 Fourth, Plaintiff objects that “[t]he [R&R] erroneously conflates ‘needs improvement’ 14 ratings with more severe corrective actions” for purpose of similarly situated comparators. Id. at
15 8. Plaintiff argues that she presented evidence that similarly situated male employees were not 16 placed on corrective action plans while she was. But even accepting Plaintiff’s argument, it 17 leaves untouched the R&R’s conclusion that Plaintiff’s verbal and written corrective action plans 18 were not adverse employment actions,4 as they merely delineated Plaintiff’s job expectations. 19 Dkt. #66 at 14 (“In other words, the plans basically describe the job [Plaintiff] should have been 20 doing since the Rhythmia mapping system was introduced in 2015.”). In fact, the R&R 21
3 To the extent Plaintiff argues the point as regards her retaliation claims, the Court considers the 22 argument below.
23 4 Plaintiff was removed from her verbal correction plan when she met its expectations and was not terminated on the basis of her written correction plan. Dkt. #66 at 8–10. Rather, Plaintiff 24 resigned. Id. at 10. 1 concluded that “the corrective action plans were designed to prevent [Plaintiff’s termination] 2 from happening by assisting her in making positive changes.” Id. at 15. Because the corrective 3 action plans were not adverse employment actions, Plaintiff’s argument that similarly situated 4 male employees were not placed on corrective action plans does not help her in establishing a 5 prima facie case of gender discrimination.5
6 Fifth, Plaintiff objects that “[t]he [R&R] improperly relies on an arbitrary 3-month 7 deadline in which retaliatory actions must occur.” Dkt. #67 at 9. Plaintiff’s objection is to the 8 R&R’s conclusion that a lapse of more than four months, between Plaintiff’s protected conduct 9 and the alleged adverse employment action, “precludes finding a causal connection and is fatal 10 to her claim.” Dkt. #66 at 21 (citing Moorehead v. Chertoff, Case No. 07-cv-1205-RAJ, 2008 11 WL 4810308, at *4 (W.D. Wash. Nov. 3, 2008)). While this is Plaintiff’s strongest objection, 12 the Court’s de novo review finds no error and concludes that summary judgment is appropriate. 13 First, and as Defendant notes, Plaintiff does not establish that she suffered an adverse 14 employment action in retaliation to her protected activity. Dkt. #70 at 9; Dkt. #66 at 21. As to
15 Plaintiff’s “needs improvement” rating, she does not point to any evidence that the rating had 16 any adverse impact on her that would deter a reasonable employee from pursuing protected 17 activity. Even further, Defendant points out that the “needs improvement” rating rested on 18 objective data, calling into question any causal connection indicative of discrimination. As to 19 the verbal corrective action, the record demonstrates that Plaintiff satisfied the expectations of 20 the plan and was removed from corrective action at that time. Dkt. #66 at 8–9.
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 LINDSAY DROZ, CASE NO. C20-48 RSM
9 Plaintiff, ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING REPORT 10 v. AND RECOMMENDATION
11 BOSTON SCIENTIFIC CORPORATION,
12 Defendant.
13 14 This employment discrimination matter is before the Court on a Report and 15 Recommendation (“R&R”) issued by the Honorable David W. Christel, United States Magistrate 16 Judge. Dkt. #66. Judge Christel recommends that the Court grant Defendant’s motion for 17 summary judgment and dismiss this action. Id. Plaintiff, objecting to the R&R on several bases, 18 asks that the Court not adopt the R&R. Dkt. #67. Defendant responds in support of the Court 19 adopting the R&R. Dkt. #70. Having considered the issues, the Court overrules Plaintiff’s 20 objections, adopts the R&R, and dismisses the action. 21 On objections to a R&R addressing dispositive motions, the Court “must determine de 22 novo any part of the magistrate judge’s disposition that has been properly objected to.” FED. R. 23 CIV. P. 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the findings 24 1 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court addresses 2 Plaintiff’s objections in turn. 3 Plaintiff first objects that “[t]he [R&R] applies the wrong causation standard” and argues 4 that she established a prima facie case of gender discrimination by presenting direct evidence of 5 discriminatory animus that played a substantial part in Defendant’s employment decisions. Dkt.
6 #67 at 1–2 (citing Alonso v. Qwest Commc’ns Co., LLC, 178 Wash. App. 734, 743–44, 315 P.3d 7 610, 615 (2013)). In support, Plaintiff points to a single comment made in 2015 by her manager’s 8 boss—a time the R&R notes is outside of the applicable statute of limitations1—that was 9 unrelated to the employments decisions upon which Plaintiff bases her discrimination claims. Id. 10 at 4. As Defendant points out, Plaintiff fails to provide any legal authority indicating that a prior 11 statement can establish discriminatory animus for later, unrelated employment decisions. Dkt. 12 #70 at 4–5.2 The Court agrees that Plaintiff did not present direct evidence of discrimination 13 related to her actionable claims of discrimination. And even if the 2015 comment was direct 14 evidence of discriminatory animus, Plaintiff does not establish that discriminatory animus played
15 a substantial role in Defendant’s later employment decisions. The objection is overruled. 16 Second, Plaintiff objects that “[t]he [R&R] ignores clear law regarding what constitutes 17 an adverse employment action.” Dkt. #67 at 5. But the Court’s de novo review establishes that 18 the R&R correctly delineated actionable adverse actions. Dkt. #66 at 12–13. In arguing 19 otherwise, Plaintiff relies on authority considering adverse employment actions in the context of 20 retaliation claims where the law looks to actions “reasonably likely to deter employees from 21
1 Dkt. #66 at 12. 22
2 Defendant also point out, as it did in its reply brief in support of its motion for summary 23 judgment, that “stray remarks not directly tied to [a] decision-making process are not direct evidence capable of defeating summary judgment.” Dkt. #70 at 4 (quoting France v. Johnson, 24 795 F.3d 1170, 1173 (9th Cir. 2015)). 1 engaging in protected activity.” Dkt. #67 at 5 (quoting Ray v. Henderson, 217 F.3d 1234, 1243 2 (9th Cir. 2000)) (quotation marks omitted); Dkt. #70 at 5–6 (Defendant noting distinction in 3 context of discrimination and retaliation claims and citing Knight v. Brown, 797 F. Supp. 2d 1107 4 (W.D. Wash. 2011)). Plaintiff’s objection seeks to impermissibly expand what may constitute 5 an adverse employment action for the purposes of her gender discrimination claims.
6 Third, Plaintiff objects that “[t]he [R&R] ignores disputed questions of material fact as 7 to when [Plaintiff] was actually rated ‘needs improvement’” on a performance review. Dkt. #67 8 at 6. But Plaintiff does not establish how these alleged errors would have altered the R&R’s 9 conclusions. As to the “needs improvement” rating, Plaintiff argues, in effect, that the rating 10 demonstrates pretext, failing to appreciate that the R&R found she had failed to establish a prima 11 facie case of gender discrimination.3 Put simply, to the extent the issues of fact are disputed, 12 they are not material. 13 Fourth, Plaintiff objects that “[t]he [R&R] erroneously conflates ‘needs improvement’ 14 ratings with more severe corrective actions” for purpose of similarly situated comparators. Id. at
15 8. Plaintiff argues that she presented evidence that similarly situated male employees were not 16 placed on corrective action plans while she was. But even accepting Plaintiff’s argument, it 17 leaves untouched the R&R’s conclusion that Plaintiff’s verbal and written corrective action plans 18 were not adverse employment actions,4 as they merely delineated Plaintiff’s job expectations. 19 Dkt. #66 at 14 (“In other words, the plans basically describe the job [Plaintiff] should have been 20 doing since the Rhythmia mapping system was introduced in 2015.”). In fact, the R&R 21
3 To the extent Plaintiff argues the point as regards her retaliation claims, the Court considers the 22 argument below.
23 4 Plaintiff was removed from her verbal correction plan when she met its expectations and was not terminated on the basis of her written correction plan. Dkt. #66 at 8–10. Rather, Plaintiff 24 resigned. Id. at 10. 1 concluded that “the corrective action plans were designed to prevent [Plaintiff’s termination] 2 from happening by assisting her in making positive changes.” Id. at 15. Because the corrective 3 action plans were not adverse employment actions, Plaintiff’s argument that similarly situated 4 male employees were not placed on corrective action plans does not help her in establishing a 5 prima facie case of gender discrimination.5
6 Fifth, Plaintiff objects that “[t]he [R&R] improperly relies on an arbitrary 3-month 7 deadline in which retaliatory actions must occur.” Dkt. #67 at 9. Plaintiff’s objection is to the 8 R&R’s conclusion that a lapse of more than four months, between Plaintiff’s protected conduct 9 and the alleged adverse employment action, “precludes finding a causal connection and is fatal 10 to her claim.” Dkt. #66 at 21 (citing Moorehead v. Chertoff, Case No. 07-cv-1205-RAJ, 2008 11 WL 4810308, at *4 (W.D. Wash. Nov. 3, 2008)). While this is Plaintiff’s strongest objection, 12 the Court’s de novo review finds no error and concludes that summary judgment is appropriate. 13 First, and as Defendant notes, Plaintiff does not establish that she suffered an adverse 14 employment action in retaliation to her protected activity. Dkt. #70 at 9; Dkt. #66 at 21. As to
15 Plaintiff’s “needs improvement” rating, she does not point to any evidence that the rating had 16 any adverse impact on her that would deter a reasonable employee from pursuing protected 17 activity. Even further, Defendant points out that the “needs improvement” rating rested on 18 objective data, calling into question any causal connection indicative of discrimination. As to 19 the verbal corrective action, the record demonstrates that Plaintiff satisfied the expectations of 20 the plan and was removed from corrective action at that time. Dkt. #66 at 8–9. The Court 21 struggles to see how Plaintiff can rest a claim of retaliation on an employment decision which 22
23 5 Even assuming that the R&R erred in finding that Plaintiff could not establish a prima facie case of gender discrimination, Plaintiff does not object that the R&R failed to find that 24 Defendant’s proffered business reasons were pretextual. 1 ultimately had no adverse impact on her. Even if Plaintiff’s retaliation claim could be premised 2 on the verbal corrective action, Plaintiff fails to establish causation on the basis of temporal 3 proximity, as discussed below. 4 Second, and as Defendant again notes, Plaintiff did not sufficiently argue that causation 5 could be inferred from proximity in her briefing before Judge Christel, waiving her current
6 objection. Defendant’s motion specifically argued that “[Plaintiff] cannot establish a causal 7 connection between protected conduct and adverse action because there is no temporal 8 proximity.” Dkt. #47 at 18. Plaintiff’s response merely noted that causation “may be inferred 9 from ‘proximity in time between the protected action and the allegedly retaliatory employment 10 decision.’” Dkt. #53 at 22 (quoting Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000)). 11 But Plaintiff did not argue, other than in a conclusory manner, that the temporal proximity 12 between the actions in this case could support a conclusion that they had a causal relationship. 13 Perhaps more importantly, while temporal proximity alone can raise an inference of 14 retaliation sufficient to support a prima facie case of retaliation, Plaintiff says nothing of her
15 burden to rebut Defendant’s legitimate business decisions and establish that they were merely 16 pretext for intentional retaliation. McDaniels v. Mobil Oil Corp., 527 F. App’x 615, 617–18 (9th 17 Cir. 2013) (“Although intermediate evidentiary burdens shift back and forth under [the 18 McDonnell Douglas] framework, [t]he ultimate burden of persuading the trier of fact that the 19 defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff.”) 20 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)) (alterations in 21 original). Defendant could have placed Plaintiff on a corrective action plan at any time after her 22 protected activity. Plaintiff does not rebut, in any manner, Defendant’s proof that the corrective 23 action plan was in fact temporally proximate to Plaintiff’s sales performance in the first two 24 quarters of 2018. See Dkt. #66 at 8. Under the facts of this case, temporal proximity alone cannot 1 establish causation, raise an inference of retaliation, or rebut Defendant’s legitimate business 2 reasons for its employment decisions. 3 Having considered the R&R, Plaintiff’s objections thereto, Defendant’s response, and the 4 remainder of the record, the Court finds and ORDERS: 5 1. The Court ADOPTS the Report and Recommendation (Dkt. #66).
6 2. Defendant’s Motion for Summary Judgment (Dkt. #47) is GRANTED. 7 3. Plaintiff’s claims are DISMISSED with prejudice. 8 4. This matter is CLOSED. 9 5. The Clerk shall send copies of this Order to the parties and Judge Christel. 10 DATED this 5th day of August, 2021. 11 12 A 13 RICARDO S. MARTINEZ 14 CHIEF UNITED STATES DISTRICT JUDGE
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