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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 SANDRA RUSSELL, CASE NO. 2:24-cv-00255-MJP 11 Plaintiff, ORDER GRANTING IN PART DEFENDANT’S MOTION FOR 12 v. SUMMARY JUDGMENT 14 Defendant. 15 17 This matter comes before the Court on Defendant T-Mobile USA, Inc.’s Motion for 18 Summary Judgment (Dkt. No. 39.) Having reviewed the Motion, Plaintiff Sandra Russell’s 19 response (Dkt. No. 44), the reply (Dkt. No. 53), the Parties’ presentations during oral argument 20 (Dkt. No. 68), and all other supporting materials, the Court GRANTS IN PART the Motion. 22 In 2023, after nearly 17 years of working for Defendant T-Mobile, Plaintiff Sandra 23 Russell was terminated as part of a planned reduction in force (“RIF”). (See generally Complaint 24 1 (Dkt. No. 1).) She alleges that her termination—along with a reduction in her year-end bonus in 2 2022—violated federal, state, and local laws as they were (1) based on her age, race, gender, sex, 3 and disability; (2) retaliatory; and (3) against public policy. (Id.) She further alleges that (1) 4 Defendant failed to accommodate her disability; (2) subjected her to a hostile work environment;
5 and (3) failed to pay her as well as similarly situated male employees. (Id.) The Court reviews 6 the relevant facts. 7 Plaintiff began her employment with T-Mobile in 2006. (Declaration of Sandra Russell 8 (Dkt. No. 47) ¶ 3.) In September 2019, Plaintiff became a Product Owner and worked as part of a 9 team supporting T-Mobile’s Digitally Assisted Sales Hub (the “DASH” team). (Russell Decl. ¶ 10 6; Declaration of Giancarlo Urey (Dkt. No. 43) Ex. B (the “Hampleman Dep.”) at 110–11.) As a 11 Product Owner, Plaintiff was responsible for writing “user stories,” or succinct descriptions of a 12 user’s experience with the DASH system to inform future developments to T-Mobile’s products 13 or processes. (Urey Decl., Ex. A (the “Russell Dep.”) at 9–10.) 14 A. Plaintiff’s Managers
15 Throughout her time as a Product Owner, Defendant assigned various individuals to 16 manage or otherwise supervise Plaintiff. Plaintiff alleges that four of these supervisors 17 discriminated against her in various ways. (Russell Decl. ¶ 4.) For the purposes of these 18 allegations, the Court briefly summarizes the relevant interactions between Plaintiff and three of 19 her supervisors—Bob Bird, Vance Hampleman, and John Barr—below. The Court notes, 20 however, that Plaintiff’s interactions with the fourth supervisor, Collin Williams, do not rise to 21 the level of being actionable, and so are not discussed. 22 23
24 1 1. Bird 2 In 2021, Bird became the Director of the product and engineering group, which included 3 the DASH team and Plaintiff. (Declaration of Sherri Moore (Dkt. No. 49) ¶ 11.) Responding to 4 employee “concerns about Mr. Bird and treatment” of the “fairly diverse group of employees” he
5 oversaw, Sherri Moore, Plaintiff’s former manager, arranged a forum for T-Mobile employees to 6 express their concerns regarding Bird with a company vice president. (Moore Decl. ¶ ¶ 12–18.) 7 At that forum, some employees—including Plaintiff—shared concerns that Bird “was not 8 sensitive or responsive to his diverse employees;” “would not treat employees of color fairly;” 9 and would retaliate against employees who spoke out about their treatment. (Id. ¶¶ 19–20.) After 10 the forum, Plaintiff sent a message to Bird’s supervisor, Amy Fulcher, regarding Bird’s behavior 11 and perception within the DASH team including that she had “no idea” as to whether Bird would 12 “judge [her] fairly” during her salary review because she did not “know where he stands on 13 diversity and inclusion.” (See Russell Decl., Ex. A.) Fulcher passed Plaintiff’s message along to 14 Bird. (Id.)
15 2. Hampleman and Barr 16 Between September 2021 through April 2023, Plaintiff was supervised by either 17 Hampleman or Barr. (Russell Decl. ¶ 4.) Plaintiff claims that both Hampleman and Barr treated 18 her differently than other non-Black, male employees. (Id. ¶ 9.) They “routinely treated [her] 19 with disrespect, talk[ed] over [her], and did not listen to [her],” all things she claims they did not 20 do with white employees or male employees. (Id.) 21 Plaintiff claims that Barr treated her like a “servant,” and instructed her to organize 22 parties and run personal errands for him. (Russell Decl. ¶¶ 10–11.) He “pressured [her] to work” 23 during her paid time off, Plaintiff recalls Barr once telling her that she should “interact with a
24 1 newer employee,” noting that she would “not want to be perceived as ‘angry’.” (Id. ¶ 14.) When 2 Plaintiff spoke with Barr about the challenges she faced at T-Mobile as a Black woman, he 3 “dismissed” her as “paranoid,” and once ended the conversation by saying “I’m Jewish.” (Id. ¶ 4 15.) Meanwhile, Plaintiff’s interactions with Hampleman were rare and short, and Hampleman
5 excluded her from meetings to which she should otherwise be invited. (Id. ¶¶ 17-18.) Other 6 employees felt that Hampleman held diverse members of his team to “higher standards” than 7 others, which resulted in fewer opportunities and projects being provided to non-white 8 employees. (Declaration of Maxine Jarman (Dkt. No. 46) ¶ 9.) 9 B. Plaintiff’s 2022 Bonus 10 As a T-Mobile employee, Plaintiff was eligible for yearly bonuses. The amount of each 11 employee’s bonus was based on the employee’s individual performance, which was determined 12 by the employee’s direct manager. (Russell Dep. at 39–40; Urey Decl., Ex. D (the “Williams 13 Dep.”) at 170–71.) In 2022, individual performance bonuses ranged from 80% to 120%. (Bird 14 Dep. at 188.) Approximately 25% of the highest performers received bonuses of 120%; 65% of
15 average performers received 100% bonuses; and the lowest 10% of performers received 80% 16 bonuses. (Hampleman Dep. at 69–70.) 17 On February 14, Plaintiff met with Hampleman, her direct manager at the time, who 18 informed her that her individual bonus for 2022 would be 80% for four reasons. (Russell Dep. at 19 144; Hampleman Dep. at 79.) First, Hampleman informed that Plaintiff was not always 20 “available” over Slack, a direct messaging application used by T-Mobile (Hampleman Dep. at 21 101; Russell Decl. ¶ 23.) Second, Hampleman told Plaintiff that she missed meetings. (Russell 22 Decl. ¶ 23.) Third, Hampleman alleged that due to Plaintiff’s unavailability, her co-workers were 23 required to write User Stories for her. (Hampleman Dep. at 104; Russell Decl. ¶ 23.) Fourth,
24 1 Hampleman said that Plaintiff “spent too much time working on DEI events.” (Russell Decl. ¶ 2 23.) At that time, Hampleman supervised only two Black employees: Plaintiff and James 3 Strickland. (Jarman Decl. ¶ 32.) Both Plaintiff and Strickland had their bonuses reduced to 80%. 4 (Id.)
5 Plaintiff, unsatisfied with her 80% bonus, contacted Bird and alleged that her reduced 6 bonus was influenced by her race. (Russell Decl., Ex. I.) Bird subsequently sent Plaintiff’s 7 concerns to a human resources employee, Treva Theus, who failed to promptly escalate the 8 concerns to T-Mobile’s Employee Relations department. (Declaration of Jeffrey Musto (Dkt. No. 9 45), Ex. H at 2.) 10 C. Accommodations for Plaintiff’s Disability 11 Plaintiff suffers from a sensitivity to light and sound which trigger migraine headaches. 12 (Russell Decl. ¶ 40.) Defendant originally accommodated Plaintiff’s disability by reducing her 13 exposure to overhead lighting in her workspace and by permitting her to work from home when 14 needed. (Russell Decl. ¶¶ 39–41.) Plaintiff had originally received an in-person accommodation
15 through a light-blocking polyester leaf, which prevented her from suffering headaches while 16 working in the office. (Id. ¶ 41.) However, the leaf was determined to be a fire hazard was 17 unavailable as an accommodation. (Russell Decl., Ex. O at 92.) Regardless, Plaintiff was still 18 allowed to work from home when needed. (Bird Dep. at 198.) 19 D. Plaintiff’s Reassignment as Product Tester 20 On March 15, 2023, Hampleman assigned Plaintiff additional work as a product tester. 21 (Hampleman Dep. at 274–75; Russell Decl., Ex. J at 70.) Plaintiff viewed her new role as a de 22 facto demotion, though admits that her title remained Product Owner and she was paid at the 23 level of a Product Owner. (Russell Dep. at 7–8.)
24 1 E. Plaintiff’s Termination 2 Defendant began having conversation regarding a reduction in force in late 2022. (Bird 3 Dep. at 120.) By January or early February 2023, Defendant had a list of individuals who were 4 proposed to be included in the RIF. (Urey Decl., Ex. G (the “Theus Dep.” at 213.) This list
5 included Plaintiff based on her “previous years of performance,” (see Bird Dep. at 119–120), 6 which Defendant maintains was “lacking,” (see Mot. at 12). 7 Plaintiff was notified of her termination on April 4, 2023, as part of Defendant’s “large- 8 scale” RIF “across the product group. (Hampleman Dep. at 282.) Approximately 17 employees 9 in Bird’s group were fired because of the RIF. (Declaration of Treva Theus (Dkt. No. 41) ¶ 3.) 10 Plaintiff was the only employee of those 17 who identified as African American. (Id.) 11 F. Plaintiff’s Lawsuit 12 On February 23, 2024, Plaintiff filed her lawsuit against her former employer. (See 13 generally, Compl.) Plaintiff brings the following nine claims against Defendant: (1) disability 14 discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.;
15 (2) disability, sex, gender, race, and age discrimination under the Washington Law Against 16 Discrimination (“WLAD”), RCW § 49.60 et seq.; (3) failure to accommodate under the ADA 17 and WLAD; (4) retaliation under the ADA and WLAD; (5) violation of the Washington Equal 18 Pay and Opportunities Act (“EPOA”), RCW § 49.58 et seq.; (6) violation of the anti- 19 discrimination ordinances set forth in King County Code (“KCC”) Chapter 12.18; (7) wrongful 20 discharge in violation of public policy; (8) hostile work environment; and (9) retaliation. (Compl. 21 at 10–22.) Defendant moves for summary judgment on all of Plaintiff’s claims. (Dkt. No. 39.) 22 23
24 2 In analyzing Defendant’s Motion, the Court first addresses the legal standard for 3 summary judgment in Subsection A and then briefly discusses those claims which Plaintiff has 4 either conceded or withdrawn in Subsection B. Subsection C assesses Plaintiff’s discrimination
5 claims under the ADA (Claim 1) and WLAD (Claim 2), Subsection D discusses her pair of 6 retaliation claims (Claims 4 & 9), and then Subsection E reviews her unlawful termination 7 claims (Claim 7). The Court then moves to her EPOA claim (Claim 5) in Subsection F, followed 8 by analysis of her hostile work environment claim (Claim 8) in Subsection G, and finally 9 addresses her failure to accommodate claim (Claim 3) in Subsection H. 10 A. Legal Standard 11 Summary judgment is proper “if the pleadings, the discovery and disclosure materials on 12 file, and any affidavits show that there is no genuine issue as to any material fact and that the 13 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether 14 an issue of fact exists, the Court must view all evidence in the light most favorable to the
15 nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty 16 Lobby, Inc., 477 U.S. 242, 248–50 (1986). A genuine issue of material fact exists where there is 17 sufficient evidence for a reasonable factfinder to find for the nonmoving party. Id. at 248. The 18 moving party bears the initial burden of showing that there is no evidence which supports an 19 element essential to the nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 Once the movant has met this burden, the nonmoving party then must show that there is a 21 genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the 22 existence of a genuine issue of material fact, “the moving party is entitled to judgment as a 23 matter of law.” Celotex, 477 U.S. at 323-24.
24 1 B. Conceded Claims 2 The Court first disposes of two claims which Plaintiff has conceded are no longer at 3 issue. First, Plaintiff concedes that her KCC 12.18 claim is improper because that ordinance does 4 not apply to Defendant. (Resp. at 27.) Second, Plaintiff conceded during oral argument that she
5 has withdrawn her age discrimination claims. Therefore, Defendant’s Motion is GRANTED as to 6 Plaintiff’s KCC 12.18 claim (Claim 6) and as to her age discrimination claims. 7 C. Discrimination Claims Under the ADA and the WLAD (Claims 1 & 2). 8 Defendant first argues that it is entitled to judgment as a matter of law on Plaintiff’s 9 claims sounding in race, sex, gender, and disability discrimination under both the ADA and the 10 WLAD. For the reasons discussed below, the Court finds that—as a matter of law—Plaintiff 11 cannot make her prima facie showing of sex and disability discrimination. Therefore, the Motion 12 is GRANTED as to those claims. However, finding there to be genuine issues of material fact 13 regarding Plaintiff’s race discrimination claim, the Court DENIES the Motion as to that claim. 14 1. Legal Standard
15 Disparate treatment claims under federal and state law are governed by the McDonnell 16 Douglas burden-shifting framework. See Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th 17 Cir. 2014) (ADA); Hines v. Todd Pac. Shipyards, 127 Wn.App. 356, 370–71 (2005) (WLAD); 18 see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because the WLAD 19 largely mirrors federal law, courts “look to interpretations of federal anti-discrimination laws . . . 20 when applying the WLAD.” See Grill v. Costco Wholesale Corp., 312 F. Supp. 2d 1349, 1354 21 (W.D. Wash. 2004). 22 Under the McDonnell Douglas framework, Plaintiff must first establish a prima facie 23 case of discrimination by offering direct or indirect evidence of discrimination. See Brzycki v.
24 1 Harborview Med. Ctr., No. C18-1582-MJP, 2020 WL 1237154, at *6 (W.D. Wash. Mar. 13, 2 2020). The burden then shifts to Defendant to articulate a legitimate nondiscriminatory reason 3 for its actions. Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1062 (9th Cir. 2002), and then 4 back to Plaintiff to produce evidence of pretext. Id.; see also Kastanis v. Education Employees
5 Credit Union, 122 Wn.2d 483 (1993). 6 2. Plaintiff’s Prima Facie Case 7 The Ninth Circuit has explained that a plaintiff may show “an inference of discrimination 8 in whatever manner is appropriate in the particular circumstances.” Hawn, 615 F.3d at 1156 9 (citation omitted). A plaintiff may “offer direct or circumstantial evidence of discriminatory 10 motive[.]” Opara v. Yellen, 57 F.4th 709, 722 (9th Cir. 2023). 11 a. Direct Evidence 12 Despite Plaintiff’s claims that “there is substantial direct evidence of discrimination 13 directed towards Ms. Russell in the words and actions of her managers,” that evidence is not in 14 the record. (Resp. at 17.) Direct evidence includes “conduct or statements by persons involved in
15 the decision-making process that may be viewed as directly reflecting the alleged discriminatory 16 attitude[.]” Opara, 57 F.4th at 722 (cleaned up); see also Dominguez-Curry v. Nev. Transp. 17 Dep’t, 424 F.3d 1027, 1039–40 (9th Cir. 2005) (similar). “[I]f believed,” direct evidence “proves 18 the fact of discriminatory animus without inference or presumption.” Vasquez v. Cnty. of Los 19 Angeles, 349 F.3d 634, 640 (9th Cir. 2003), as amended (Jan. 2, 2004) (cleaned up). “When a 20 plaintiff . . . seeks to establish a prima facie case through the submission of actual evidence, very 21 little such evidence is necessary.” Opara, 57 F.4th at 723 (quoting Schnidrig v. Columbia Mach., 22 Inc., 80 F.3d 1406, 1409 (9th Cir. 1996)); see also Dominguez-Curry, 424 F.3d at 1039 (“[I]n 23 this circuit, we have repeatedly held that a single discriminatory comment by a plaintiff’s
24 1 supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.”) 2 (citations omitted). 3 The only evidence provided by Plaintiff which could be construed as “direct” evidence of 4 any discrimination is Barr warning her that “she risked being perceived as an angry black woman
5 if she did not interact with a new employee.” (Resp. at 17.) But that statement is not accurate: 6 Plaintiff avers only that Barr “told [her] that she did not want to be perceived as ‘angry.’” 7 (Russell Decl. ¶ 14.) Neither race nor sex nor gender were directly implicated in that statement 8 and Plaintiff’s subjective belief that the remark was racially motivated is not sufficient to show 9 direct evidence of discrimination. See Rivera v. National R.R. Passenger Corp., 331 F.3d 1074, 10 1078 (9th Cir. 2003) (“Conclusory allegations unsupported by factual data cannot defeat 11 summary judgment”). 12 b. Indirect Evidence 13 Plaintiff may still establish her prima facie case based on circumstantial evidence by 14 showing: (1) that she is a member of a protected class; (2) that she was qualified for her positions
15 and was performing her jobs satisfactorily; (3) that she experienced adverse employment actions; 16 and (4) that (a) similarly situated individuals outside her protected class were treated more 17 favorably, or (b) other circumstances surrounding the adverse employment action give rise to an 18 inference of discrimination. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 19 2010). The Parties dispute the fourth element. 20 “To establish similarity under the McDonnell Douglas framework, the individuals being 21 compared ‘need not be identical; they must only be similar in all material respects.’” Ballou v. 22 McElvain, 29 F.4th 413, 423 (9th Cir. 2022). “[I]ndividuals are similarly situated when they 23 have similar jobs and display similar conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634,
24 641 (9th Cir. 2003). Defendant argues that Plaintiff’s sex and disability discrimination claims fail 1 because she cannot show that similarly situated employees outside of those classes were treated 2 more favorably. (Mot. at 12.) The Court agrees. Plaintiff was terminated as part of the RIF 3 alongside white, male, and non-disabled employees. (Theus Decl. ¶ 4.) And Plaintiff’s male, 4 non-disabled colleague also received an 80% bonus in 2022. (Jarman Decl. ¶ 32; Declaration of
5 Jennifer Lamb (Dkt. No. 42) ¶ 3.) The Court finds that Plaintiff fails show that similarly situated 6 able-bodied and male colleges were treated more favorably than her, nor does the record show 7 other circumstances which may allow for an inference of discriminatory motive on the basis of 8 sex or disability. Therefore, the Court GRANTS the Motion as to Plaintiff’s sex and disability 9 discrimination claims under both the ADA (Claim 1) and the WLAD (Claim 2). 10 However, the Court finds that Plaintiff has made her prima facie case of racial 11 discrimination under the WLAD. Plaintiff provides indirect evidence of racial discrimination by 12 demonstrating that “other circumstances surrounding the adverse employment action give rise to 13 an inference of discrimination.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 691 (9th Cir. 14 2017); see also Lui, 129 F.4th at 778 (describing the fourth element as “a catch-all requiring only
15 that the adverse action occurred under circumstances giving rise to an inference of 16 discrimination.”) (cleaned up). The only two Black employees managed by Hampleman in 2022 17 had their bonuses reduced. The record includes numerous concerns voiced by former T-Mobile 18 employees regarding Bird, Hampleman, and Barr’s treatment of non-white employees. When 19 viewing this evidence in the light most favorable to Plaintiff, the Court finds that she overcomes 20 the relatively low bar set by the Ninth Circuit in making her prima facie case of race 21 discrimination. See Hawn, 615 F.3d at 1158 (noting that a plaintiff’s burden to make a prima 22 facie case of discrimination is “not onerous.”) (citing Wheeler v. Aventis Pharm., 360 F.3d 853, 23 857 (8th Cir. 2004)).
24 1 3. Legitimate, Nondiscriminatory Reason 2 Because Plaintiff established a prima facie case of race discrimination, “the burden shifts 3 to the employer to articulate some legitimate, nondiscriminatory reason for the challenged 4 action.” Opara, 57 F.4th at 725 (citing Chuang v. Univ. of California Davis, Bd. of Trustees, 225
5 F.3d 1115, 1126 (9th Cir. 2000)) (cleaned up). “This burden is one of production, not persuasion 6 . . . [and] involve[s] no credibility assessment.” Id. (quoting Reeves v. Sanderson Plumbing 7 Prods., Inc., 530 U.S. 133, 142 (2000)) (cleaned up). Defendant’s justification for Plaintiff’s 80% 8 bonus was based on the performance review she received from Hampleman. Similarly, 9 Defendant argues that Plaintiff’s position was eliminated due to her performance, which was 10 “lacking.” (Mot. at 12.) Defendant later clarifies that “Plaintiff was ultimately laid off as part of a 11 larger reduction in force across the Digital organization.” (Reply at 6.) The Court accepts that 12 individual performance and blanket reductions in force constitute legitimate, nondiscriminatory 13 reasons to terminate an employee. 14 4. Pretext
15 With Defendant having met its burden to produce legitimate, nondiscriminatory reasons 16 for the challenged actions, the burden shifts back to Plaintiff to “show that the articulated reason 17 is pretextual.” Opara, 57 F.4th at 723. Pretext may be shown in two ways, “either: (1) ‘directly, 18 by showing that unlawful discrimination more likely [than not] motivated the employer;’ (2) 19 ‘indirectly, by showing that the employer’s proffered explanation is unworthy of credence 20 because it is internally inconsistent or otherwise not believable;’ or via ‘a combination of these 21 two kinds of evidence.’ ” Id. (quoting Chuang, 225 F.3d at 1127) (cleaned up). Plaintiff needs 22 very little evidence to raise a genuine issue of fact regarding Defendant’s motive; “evidence . . . 23
24 1 that the employer’s asserted justification is false, may be enough.” Id. at 723–24 (emphasis in 2 original) (quoting Reeves, 530 U.S. at 148). 3 There are genuine disputes of material fact as to whether Defendant’s proffered reasons 4 for her reduced bonus and termination were pretextual. As to the reduced bonus, there is a factual
5 dispute as to whether Hampleman’s proffered justifications for the reduced bonus were true due 6 to internal inconsistencies and contradictory evidence in the record. First, Hampleman’s 7 criticisms regarding Plaintiff’s availability on Slack are contradicted by Bird’s deposition 8 testimony that bonus decisions should not be based on Slack. (Musto Decl., Ex. U at 47–48.) 9 Second, Hampleman’s criticism that Plaintiff had missed meetings is inconsistent with the 10 concerns raised by Plaintiff that she had been intentionally excluding her from meetings. (See, 11 e.g., Russell Decl., Ex. D (chat log of Plaintiff complaining to Hampleman of being excluded 12 from meetings).) Third, Hampleman’s criticism of other team members needing to write 13 Plaintiff’s User Stories for her does not appear to be outside of the normal business practices for 14 the Digital Team. (See Moore Decl. ¶ 38 (the creation of 6-8 user stories by other team member
15 is “not abnormal nor . . . a basis for concern about a product owner’s performance or reducing 16 their bonus.”).) These inconsistencies are exacerbated by evidence that Hampleman was unable 17 to appropriately justify or explain his reduction of Plaintiff’s bonus during a manager’s meeting, 18 (Jarman Decl. ¶¶ 31–32,) and by Bird himself questioning the validity of Hampleman’s 19 assessment of Plaintiff’s performance, (Musto Decl., Ex. U at 50; Ex. F at 3.) In the aggregate, 20 the Court finds that there is a genuine issue of fact as to whether Hampleman’s evaluation of 21 Plaintiff’s work was pretext for discrimination. 22 As to the termination, the record shows additional inconsistencies which raise questions 23 as to whether Defendant’s reasons for terminating Plaintiff were pretextual. First, in an internal
24 1 email, a T-Mobile Human Resources officer writes that Plaintiff’s termination was “due to 2 reductions in roles and scope in the department, nothing to do with performance.” (See Musto 3 Decl., Ex. H at 3.) This contradicts Defendant’s claim that Plaintiff was laid off because of her 4 performance. (See Mot. at 12; Reply at 6.) Similarly, Defendant’s additional underlying
5 justification for terminating Plaintiff—that T-Mobile was moving away from Product Owners 6 (see Musto Decl., Ex. U at 35)—is undermined by Hampleman’s promotion of a white male 7 employee to the Product Owner role shortly after Plaintiff was fired from that role. (Hampleman 8 Dep. at 114.) At this stage, the contradiction between Defendant’s proffered rationale and the 9 evidence in the record weighs against granting summary judgment on Plaintiff’s race 10 discrimination claim. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell 11 two different stories, one of which is blatantly contradicted by the record, . . . a court should not 12 adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). 13 Accordingly, Defendant’s Motion is DENIED as to Plaintiff’s race discrimination claim under 14 the WLAD (Claim 2).
15 D. Retaliation (Claims 4 & 9) 16 Plaintiff’s Fourth and Ninth causes of action sound in retaliation, and so the Court 17 analyzes them together. Defendant argues both claims fail as a matter of law because there is no 18 evidence to show a causal link between Plaintiff’s “complaint about her bonus or request for a 19 reasonable accommodation” and “T-Mobile’s decision to terminate her employment.” (Motion at 20 17–18.) The Court disagrees with Defendant. 21 Like disparate treatment claims under WLAD, “a plaintiff may defeat summary judgment 22 in a retaliation claim with direct evidence or through the McDonnell Douglas burden shifting 23 scheme.” Houserman v. Comtech Telecomms. Corp., No. C19-0644-RAJ, 2020 WL 7773417, at
24 1 *8 (W.D. Wash. Dec. 30, 2020). Under both state and federal law, a prima facie case of 2 retaliation requires proof that the plaintiff (1) “engaged in a protected activity,” (2) “suffered an 3 adverse action,” and (3) can establish “a causal connection between the protected activity and the 4 adverse action.” Brzycki, 2020 WL 1237154, at *7 (citing Vasquez v. Cnty. of Los Angeles, 349
5 F.3d 634, 646 (9th Cir. 2003). In the retaliation context, an adverse action “consists of conduct 6 which would dissuade a reasonable worker from engaging in protected activity.” Id. (citing 7 BNSF Ry. Co. v. White, 548 U.S. 53, 68 (2006)). 8 Defendant’s causal argument fails for at least two reasons. First, Defendant incorrectly 9 assumes that the first instance of protected activity occurred on February 14, 2023, when she 10 complained about her 80% bonus being influenced by her race. However, Plaintiff sent a 11 message to Fulcher discussing Bird potentially discriminating against employees of color in by at 12 least August 19, 2021. (Russell Decl., Ex. A.) Among other things, Plaintiff voiced concerns 13 regarding how Bird would evaluate her as a Black woman, given that she “ha[d] no idea” as to 14 his position on Defendant’s DEI efforts. (Id.) Plaintiff herself identified this email as a basis for
15 retaliation. (See Russell Dep. at 37-38 (“With Bob, I have a hard time believing that me being 16 laid off doesn’t stem back to the letter I wrote to Amy because he had the opportunity to jump on 17 board and be retaliatory.”).) The Court notes that while Fulcher claims to have “scrubbed” 18 Plaintiff’s message for identifying information, it still includes information that could still 19 indicate Plaintiff’s authorship, such as her 2006 start date and Bird’s behavior during a particular 20 presentation given by Plaintiff. (Russell Decl., Ex. A.) Bird acknowledged receiving this email 21 on August 30, 2021. (Id.) Bird’s decision to terminate Plaintiff was made nearly a year and a half 22 later. (See Theus Dep. at 213 (noting that decision was made around January 2023)). While the 23 protected activity and adverse employment action are somewhat distant, there is no per se too
24 1 long or too short period of time that satisfies the causation requirement in a retaliation claim. See 2 Howard v. City of Coos Bay, 871 F.3d 1032, 1046 (9th Cir. 2017). Bird’s decision to terminate 3 Plaintiff could feasibly have been the result of Plaintiff’s earlier email to Fulcher, and therefore 4 her retaliation claim cannot be precluded as a matter of law.
5 Second, even if the first instance of protective action occurred on February 14, 2023, 6 Plaintiff presents a genuine dispute of material fact that her subsequent “demotion” constitutes 7 an adverse employment action for the purposes of retaliation. “[A]n action is cognizable as an 8 adverse employment action if it is reasonably likely to deter employees from engaging in 9 protected activity.” Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000); Burlington N. & 10 Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). “The standard for an adverse employment 11 action is a material employment disadvantage, such as a tangible change in duties, working 12 conditions or pay.” Nahum v. Boeing Co., No. 2:19-CV-1114-BJR, 2019 WL 6878242, at *3 13 (W.D. Wash. Dec. 17, 2019), aff’d, No. 21-35008, 2025 WL 670969 (9th Cir. Mar. 3, 2025), and 14 aff'd, No. 21-35008, 2025 WL 670969 (9th Cir. Mar. 3, 2025).
15 Defendant argues that Plaintiff’s role change was not a demotion as she already 16 performed some testing work, retained her job title, and did not suffer a pay decrease. (Mot. at 17 7.) However, even if not considered a demotion, Plaintiff describes her tangible change in duties 18 as “undesirable.” (Russell Decl. ¶ 33.) Whether the imposition of additional testing duties would 19 constitute an adverse employment action is material to Plaintiff’s retaliation claim. Accordingly, 20 Defendant’s Motion is DENIED as to Plaintiff’s retaliation claims (Claims 4 & 9). 21 22 23
24 1 E. Wrongful Discharge in Violation of Public Policy (Claim 7) 2 Defendant argues that Plaintiff’s wrongful discharge in violation of public policy claim 3 fails as a matter of law because it is duplicative of her discrimination and retaliation claims. 4 (Mot. at 18–19.) The Court disagrees.
5 “To maintain a common law claim for wrongful discharge, a plaintiff must prove four 6 elements: (1) the existence of a clear public policy, (2) that discouraging the conduct in which 7 the plaintiff engaged would jeopardize the public policy (the ‘jeopardy’ element), (3) that the 8 conduct caused the dismissal, and (4) that the defendant has not offered an overriding 9 justification for the dismissal.” Gamble v. Pac. Nw. Reg’l Council of Carpenters, No. 2:14-CV- 10 00455RSM, 2015 WL 402782, at *6 (W.D. Wash. Jan. 29, 2015) (citing Lee v. Rite Aid Corp., 11 917 F. Supp. 2d 1168, 1175 (E.D. Wash. 2013)). 12 At oral argument, Defendant conceded that its argument as to Plaintiff’s wrongful 13 discharge claim did not accurately describe Washington law. The Washington Supreme Court 14 has held that dismissal of a wrongful discharge claim as a matter of law is appropriate only
15 where the alternative statutory remedy is intended to be exclusive. See Rose v. Anderson Hay & 16 Grain Co., 184 Wn.2d 268 (2015). Courts in this district have since denied duplicative arguments 17 like those now raised by Defendant. See, e.g., Bradley v. Swedish Health Servs., No. C22-0581 18 TSZ, 2023 WL 8879121, at *8 (W.D. Wash. Dec. 22, 2023). Accordingly, the Motion is 19 DENIED as to Plaintiff’s wrongful discharge claim (Claim 7). 20 F. Washington’s Equal Pay and Opportunities Act (Claim 5) 21 Defendant next argues that Plaintiff’s EPOA claim fails as a matter of law because she 22 cannot show that she received less pay because of her gender. (Mot. at 20.) The Court agrees. 23
24 1 The EPOA prohibits “providing compensation based on gender between similarly 2 employed employees.” RCW 49.58.020(1). “Employees are similarly employed if the individuals 3 work for the same employer, the performance of the job requires similar skill, effort, and 4 responsibility, and the jobs are performed under similar working conditions.” RCW
5 49.58.020(2). The EPOA is virtually identical to its federal counterpart, the Equal Pay Act of 6 1963, 29 U.S.C. § 206(d), and, as such, “[d]ecisions interpreting the federal act may then be 7 helpful.” Hudon v. W. Valley Sch. Dist. No. 208, 123 Wn. App. 116, 124 (2004). Notably, the 8 federal law “does not prohibit variations in wages; it prohibits discriminatory variations in 9 wages.” Hein v. Oregon Coll. of Educ., 718 F.2d 910, 916 (9th Cir. 1983) (emphasis in original). 10 “If it should turn out that [Plaintiff] earns more than males performing substantially equal work, 11 it is axiomatic that the [EPOA] does not afford her relief.” Id. (emphasis in original). Here, 12 Defendant provides undisputed evidence that Plaintiff was paid more than a male Product Owner 13 and a male Senior Product Owner in the Digital Group. (Theus Decl. ¶ 4, Ex. 2.) Accordingly, 14 the Motion is GRANTED as to Plaintiff’s EPOA claim (Claim 5).
15 G. Hostile Work Environment (Claim 8) 16 Defendant next argues that Plaintiff fails to show that she was subject to harassment due 17 to her race, sex, gender, disability, or age, and therefore her hostile work environment claim fails 18 as a matter of law. (Mot. at 21–22.) The Court agrees. 19 To establish her hostile work environment claim, Plaintiff must show (1) that she was 20 subjected to verbal or physical conduct because of her protected class (2) that the conduct was 21 unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions 22 of her employment and create an abusive work environment. See Manatt v. Bank of Am., NA, 23 339 F.3d 792, 798 (9th Cir. 2003). “The working environment must both subjectively and
24 1 objectively be perceived as abusive.” Id. at 800 n.6 (quoting Brooks v. City of San Mateo, 229 2 F.3d 917, 923 (9th Cir. 2000)). The WLAD’s formulation of a hostile-work environment claim is 3 largely the same as that of the federal statue. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401 4 (1985). The Court must “look at all the circumstances, including the frequency of the
5 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 6 offensive utterance; and whether it unreasonably interferes with an employee’s work 7 performance.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (internal 8 quotations omitted). 9 The record here does not show that Plaintiff herself endured the type of harassment 10 severe or pervasive enough to rise to the level of “a discriminatorily hostile or abusive 11 environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Plaintiff relies on the 12 experiences of others to construct her hostile work environment claim. For example, Moore 13 avers that Bird “would berate [her] to a severity and in ways [she] did not see him do with other 14 white or male employees.” (Moore Decl. ¶ 16.) But Moore is not the plaintiff here. Even when
15 viewing the record in her favor, Plaintiff’s interactions with Bird and Barr were perhaps 16 unpleasant, but not threatening, humiliating, or otherwise subjectively and objectively perceived 17 as abusive. A hostile work environment claim requires more than an unkind boss. Furthermore, 18 Plaintiff’s complaints regarding Hampleman—that he was dismissive and disengaged—are on 19 the opposite end of the spectrum to the type of verbal and physical conduct needed to establish a 20 hostile workplace claim. Because Plaintiff cannot show that she herself was subjected to the type 21 of verbal and physical conduct found to constitute a hostile work environment, the Court 22 GRANTS Defendant’s Motion as to Plaintiff’s hostile work environment claim (Claim 8). 23
24 1 H. Failure to Accommodate (Claim 3) 2 Defendant next argues that Plaintiff’s failure to accommodate claim fails as a matter of 3 law because she was allowed to work from home due to her disability. (Mot. 19–20.) The Court 4 agrees.
5 To make a prima facie case of failure to accommodate under either the WLAD or the 6 ADA, Plaintiff must demonstrate that (1) she is disabled; (2) she is qualified for the job in 7 question and capable of performing it with reasonable accommodation; (3) the employer had 8 notice of her disability; and (4) the employer failed to reasonably accommodate her disability. 9 See Samper v. Providence St. Vincent Med. Cntr., 675 F.3d 1233, 1237 (9th Cir. 2012); 10 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088–89 (9th Cir. 2002); Davis v. Microsoft 11 Corp., 149 Wn.2d 521 (2003). If an employee identifies a disability that may require 12 accommodation, the employer has a mandatory duty under the ADA to engage in a good faith 13 interactive process of identifying essential and nonessential job tasks and possible 14 accommodations, assessing the reasonableness and effectiveness of the accommodations, and
15 implementing the accommodation most appropriate for the employee and employer that does not 16 impose an undue hardship on the employer. Steenmeyer v. Boeing Co., 92 F. Supp. 3d 1024, 17 1030 (W.D. Wash. 2015) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000), 18 vacated in part on other grounds by 535 U.S. 391 (2002)). The employee’s expressed preference 19 as to accommodation must be taken into consideration. Id. 20 Plaintiff argues that she “had issues getting her managers to actually take her 21 accommodation seriously,” which “effectively denied [Plaintiff] her accommodation.” (Resp. at 22 27.) But Plaintiff was never denied an accommodation for her disability. It is undisputed that 23 allowing Plaintiff to work from home was a reasonable accommodation for her disability. See
24 1 Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001) (“Working at home is a 2 reasonable accommodation when the essential functions of the position can be performed at 3 home and a work-at-home arrangement would not cause undue hardship for the employer.”) 4 Indeed, Plaintiff admits that she “worked a hybrid role in which [she] was permitted to work
5 from home and the office.” (Russell Decl. ¶ 39.) That Plaintiff may have preferred other 6 accommodations does not change the fact that Defendant reasonably accommodated her 7 disability as required by state and federal law. See Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 8 1050 (9th Cir. 1995) (Upon finding and providing reasonable accommodation, “[Defendant] 9 satisfied its legal obligation, and the inquiry is over.”). Accordingly, the Motion is GRANTED as 10 to Plaintiff’s failure to accommodate claim (Claim 3). 12 Defendant’s Motion is GRANTED IN PART and DENIED IN PART. 13 Several of Plaintiff’s claims fail as a matter of law. First, Plaintiff fails to draw an 14 inference that her termination or reduced bonus were the result of her disability. Second, Plaintiff
15 cannot show that Defendant failed to accommodate her disability, as it is undisputed that she was 16 permitted to work from home. Third, Defendant has provided unrefuted evidence that Plaintiff 17 was compensated as well or better than other male Product Owners in Bird’s group. Fourth, as a 18 business located in incorporated King County, Plaintiff’s KCC claims do not apply. Finally, 19 Plaintiff does not show that she was subject to a hostile workplace environment beyond 20 unpleasant interactions with her supervisors. The Court GRANTS Defendant’s motion as to (1) 21 Plaintiff’s discrimination claim under the ADA (Claim 1); (2) Plaintiff’s failure to accommodate 22 claims under the ADA and WLAD (Claim 3); (3) Plaintiff’s EPOA claim (Claim 5); (4) 23
24 1 Plaintiff’s discrimination claim under KCC Chapter 12.18 (Claim 6); and (5) Plaintiff’s hostile 2 work environment claim (Claim 8). 3 Plaintiff provides insufficient evidence to show that her reduced bonus or termination 4 were influenced by her disability, gender, or sex. She has also withdrawn her allegations that she
5 was discriminated against on the basis of her age. Therefore, the Court GRANTS IN PART 6 Defendant’s motion as to Plaintiff’s WLAD claim (Claim 2) insofar as she alleges discrimination 7 based on disability, age, gender, or sex. 8 The Court finds there remain genuine disputes of material fact as to Plaintiff’s remaining 9 claims. Defendant’s alleged non-discriminatory reasons for Plaintiff’s reduced bonus and 10 termination are contradicted by the evidence, which presents a factual question as to whether 11 those reasons were mere pretext. Similarly, there is a material dispute as to whether Plaintiff’s 12 termination was a consequence of her complaints regarding Bird’s management of diverse 13 employees or whether her reassignment of additional testing responsibilities constitutes an 14 adverse employment action. Finally, Defendant’s argument regarding Plaintiff’s wrongful
15 discharge claim fails as a matter of law. Accordingly, summary judgment is DENIED as to (1) 16 Plaintiff’s race discrimination claims under the WLAD (Claim 2); (2) Plaintiff’s retaliation 17 claims (Claims 4 & 9); and (3) Plaintiff’s wrongful discharge in violation of public policy claim 18 (Claim 7). 19 The clerk is ordered to provide copies of this order to all counsel. 20 Dated June 2, 2025. A 21 22 Marsha J. Pechman United States Senior District Judge 23 24