Weil v. Citizens Telecom Services Company, LLC

• Court: District Court, W.D. Washington
• Decided: November 8, 2019
• Docket: 2:15-cv-00835
• Status: Unknown

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 DAVID R. WEIL, CASE NO. C15-0835JLR 11 Plaintiff, ORDER GRANTING v. DEFENDANTS’ MOTION FOR 12 PARTIAL SUMMARY JUDGMENT CITIZENS TELECOM SERVICES 13 COMPANY, LLC, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is Defendants Citizens Telecom Services Company, LLC and 17 Frontier Communications Corporation’s (collectively, “Defendants”) motion for partial 18 summary judgment to limit plaintiff David R. Weil’s damages claim. (Mot. (Dkt. # 68); 19 see also Reply (Dkt. # 72).) Mr. Weil opposes Defendants’ motion. (Resp. (Dkt. # 69).) 20 Having considered the parties’ submissions, the appropriate portions of the record, and 21 // 22 1 the relevant law,1 the court GRANTS Defendants’ motion for partial summary judgment 2 to limit plaintiff’s damages claim.

3 II. BACKGROUND 4 This case involves alleged employment discrimination “on the basis of race, color, 5 and sex.”2 (See Am. Compl. (Dkt. # 21) ¶ 1.) In his amended complaint, Mr. Weil, a 6 male of East Indian descent, alleges that Defendants violated Title VII of the Civil Rights 7 Act of 1964, 42 U.S.C. § 2000e et seq.; Section 1981 of the Civil Rights Act of 1866, 42 8 U.S.C. § 1981; and the Washington Law Against Discrimination (“WLAD”), RCW

9 49.60.010 et seq., when Defendants failed to promote him to the position of call center 10 director and subsequently terminated his employment. (See generally id.) On October 6, 11 2016, the court granted Defendants’ motion for summary judgment and dismissed this 12 case based on the court’s finding that Mr. Weil failed to raise a genuine dispute of 13 material fact in support of his failure to promote claim and his wrongful termination

14 claim. (See 10/6/16 Order (Dkt. # 51) at 16-24.) 15 Mr. Weil appealed, and the Ninth Circuit Court of Appeals affirmed the court’s 16 summary judgment ruling against Mr. Weil’s wrongful termination claim, but reversed 17 the court’s summary judgment dismissal of Mr. Weil’s failure to promote claim. (See 18 4/29/19 Op. (Dkt. # 60) at 14-19.) On the failure to promote claim, the Ninth Circuit held

20 1 Neither party has requested oral argument (see Mot. at 1; Resp. at 1), and the court finds it unnecessary for the disposition of this motion, see Local Rules W.D. Wash. LCR 7(b)(4).

21 2 The court and the Ninth Circuit have set forth the relevant background of Mr. Weil’s employment discrimination case in detail. (See 10/6/16 Order at 2-9; 4/29/19 Op. at 4-8.) The 22 court repeats here only what is necessary to the outcome of this motion. 1 that the court improperly excluded a statement from one of Mr. Weil’s co-workers as 2 hearsay. (See id. at 8-14.) According to the Ninth Circuit, Mr. Weil’s failure to promote

3 claim survived summary judgment once the court considered the co-worker’s statement. 4 (See id. at 16-17.) 5 In analyzing Mr. Weil’s wrongful termination claim, the Ninth Circuit recognized 6 that the level of proof Mr. Weil needed to establish a prima facie case at the summary 7 judgment stage “is minimal and does not even need to rise to the level of a preponderance 8 of the evidence.” (Id. at 18 (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.

9 1994)).) Despite this low evidentiary bar, the Ninth Circuit concluded that the 10 “undisputed evidence” in this case shows that Mr. Weil’s job performance was not 11 satisfactory at the time Defendants terminated him. (See id. at 18-19). More specifically, 12 the Ninth Circuit noted that “[Mr.] Weil’s performance was steadily declining from 2011 13 to 2013;” that Mr. Weil’s own evaluations of his performance “reflected performance that

14 was unsatisfactory;” and that Mr. Weil “missed deadlines,” “failed to complete action 15 items in his [developmental action plan],” and was ultimately “placed on a [performance 16 improvement plan] to address his performance and warned that termination was a 17 possible outcome if he failed to improve.” (See id.) Thus, the Ninth Circuit concluded 18 that Mr. Weil’s wrongful termination claim failed because the undisputed evidence

19 showed that Defendants terminated Mr. Weil for poor job performance and not because 20 of his membership in a protected class. (See id.) Additionally, the Ninth Circuit agreed 21 with the court’s conclusion that Mr. Weil failed to establish a genuine dispute of material 22 fact on the fourth element of his prima facie wrongful termination claim—that 1 Defendants treated him differently than similarly situated employees outside his protected 2 class. (See id. at 19.)

3 Defendants now move for partial summary judgment on the narrow issue of 4 whether Mr. Weil is entitled to back pay or front pay after the date Defendants terminated 5 him. (See Mot at 1-2, 8-12.) Specifically, Defendants argue that, as a result of the court’s 6 summary judgment ruling on Mr. Weil’s wrongful termination claim and the Ninth 7 Circuit’s order affirming that ruling, there is no longer any dispute that Defendants 8 lawfully terminated Mr. Weil. (See Mot. at 1-2, 12.) As such, Defendants assert that Mr.

9 Weil’s claims for back pay and front pay should be cut off at his termination date and 10 limited as a matter of law to the amount of back pay that Mr. Weil would have been 11 entitled to had he been promoted but then subsequently terminated. (See id. at 1-2 12 (“[E]ven if for the sake of argument Plaintiff succeeds on his remaining failure-to- 13 promote claim, he cannot reap a windfall by recovering damages for a period following

14 his lawful termination from employment. Thus, Plaintiff’s potential damages should be 15 cut off at the time of his termination.”).) Defendants allege that Defendants decided not 16 to promote Mr. Weil on April 1, 2013, and terminated him on August 15, 2013. (See 17 Mot. at 12.) In response, Mr. Weil claims that Defendants can limit his entitlement to 18 back pay only if Defendants can show that his loss of earnings was willful, which, he

19 argues, Defendants have not shown. (See Resp. at 4-11.) 20 // 21 // 22 // 1 III. ANALYSIS 2 A. Legal Standard

3 Defendants move for partial summary judgment under Federal Rule of Civil 4 Procedure 56. (See Mot at 1.) Summary judgment is appropriate if the evidence, when 5 viewed in the light most favorable to the non-moving party, demonstrates “that there is 6 no genuine dispute as to any material fact and the movant is entitled to judgment as a 7 matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 8 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears

9 the initial burden of showing there is no genuine issue of material fact and that he or she 10 is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party 11 meets his or her burden, then the non-moving party “must make a showing sufficient to 12 establish a genuine dispute of material fact regarding the existence of the essential 13 elements of his case that he must prove at trial” to withstand summary judgment.3 Galen,

14 477 F.3d at 658. On a motion for summary judgment, the court is “required to view the 15 facts and draw reasonable inferences in the light most favorable to the [non-moving] 16 party.” Scott v. Harris, 550 U.S. 372, 378 (2007). 17 // 18 //

19 // 20 3 The same standard and procedural rules apply to motions for partial summary judgment. See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 768 (9th Cir. 1981) (noting 21 that, on a motion for partial summary judgment “the moving party has the burden of showing that there is no genuine issue as to any material fact and that he is entitled to a partial summary 22 judgment as a matter of law”). 1 B. Defendants’ Motion for Partial Summary Judgment 2 1. Standard for Front Pay and Back Pay

3 Defendants’ motion presents a single issue: Whether Mr. Weil is entitled to back 4 pay or front pay after the date Defendants terminated him. “An award of back pay 5 compensates plaintiffs for lost wages and benefits between the time of the discharge and 6 the trial court judgment.” Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 379 7 (1st Cir. 2004) (citations omitted). In contrast, “front pay is simply money awarded for 8 lost compensation during the period between judgment and reinstatement or in lieu of

9 reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001). 10 Back pay and front pay are amongst the available remedies under both state and federal 11 law for employment discrimination claims. See Caudle v. Bristow Optical Co., 224 F.3d 12 1014, 1020 (9th Cir. 2000) (“Title VII of the Civil Rights Act of 1964 permits courts to 13 grant equitable remedies to employees who have been impermissibly discriminated

14 against by employers . . . . The relevant remedies include reinstatement and awards of 15 back pay and front pay.” (citations omitted)); Martini v. Boeing Co., 971 P.2d 45, 49-53 16 (Wash. 1999) (noting that WLAD permits recovery of front and back pay for successful 17 discrimination claims). 18 State and federal law dictate that employees who prove claims of employment

19 discrimination are entitled to back pay, front pay, or both so long as the employee 20 establishes that his or her lost wages or earnings were caused by the discriminatory acts 21 at issue. See Rivera v. NIBCO, Inc., 384 F.3d 822, 833 n.16 (9th Cir. 2004) (“[T]he 22 backpay or frontpay or reinstatement remedy [under Title VII] is only available where the 1 damages were caused by the discriminatory conduct.”); Gotthardt v. Nat’l R.R. 2 Passenger Corp., 191 F.3d 1148, 1155 (9th Cir. 1999) (“To receive front pay, a Title VII

3 plaintiff must show that her employer’s violations of Title VII caused her loss of 4 employment.” (citations omitted)); Martini, 971 P.2d at 51-54 (noting that front pay and 5 back pay are part of the plaintiff’s “actual damages” under RCW 49.60.030(2) and, as 6 such, awards of front pay and back pay in WLAD are subject to “determinations of both 7 proximate cause and mitigation”). This focus on causation arises from the principle that 8 “[t]he object of compensation is to restore the employee to the position he or she would

9 have been in absent the discrimination.” McKennon v. Nashville Banner Pub. Co., 513 10 U.S. 352, 362 (1995); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) 11 (noting that one of the “central statutory purposes” of Title VII is “making persons whole 12 for injuries suffered through past discrimination”). Thus, the court must determine 13 whether there is a genuine dispute of material fact that Defendants’ failure to promote

14 Mr. Weil proximately caused him to lose wages and benefits after the date that 15 Defendants terminated his employment. 16 Courts limit claims for back pay or front pay made by an employee who succeeds 17 on the merits of their discrimination claims where the employee would have been 18 subsequently terminated for lawful or non-discriminatory reasons. See, e.g., McKennon,

19 513 U.S. at 360-63 (concluding that employee’s remedy for successful claim under Age 20 Discrimination in Employment Act of 1967 (“ADEA”) can be limited by “after-acquired 21 evidence of wrongdoing that would have led to termination on legitimate grounds had the 22 employer known about it”); O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 1 759 (9th Cir. 1996) (“If an employer discovers that the plaintiff committed an act of 2 wrongdoing and can establish that the wrongdoing was of such severity that the employee

3 in fact would have been terminated on those grounds alone . . . , the employer does not 4 have to offer reinstatement or provide front pay, and only has to provide backpay from 5 the date of the unlawful discharge to the date the new information was discovered.” 6 (citing McKennon, 513 U.S. at 360-63) (internal quotations omitted)); Dean v. Trans 7 World Airlines, Inc., 924 F.2d 805, 812 (9th Cir. 1991) (affirming district court’s 8 conclusion that employee’s subsequent discharge for a tax conviction served as an

9 “independent intervening event” that cut off his damages claim in wrongful discharge 10 case); N.L.R.B. v. Fort Vancouver Plywood Co., 604 F.2d 596, 602 (9th Cir. 1979) 11 (“Where the jobs affected by the illegal discharge would have been phased out anyway, 12 regardless of the unfair labor practices, the Board must tailor its remedy to reflect the 13 situation but for the violations.” (citations omitted)); Harper v. Godfrey Co., 45 F.3d 143,

14 149 (7th Cir. 1995) (“Regardless of whether the discrimination had occurred plaintiffs 15 would have been fired in early 1987 for their misconduct. Accordingly, the district court 16 correctly restricted their awards of back pay to the time preceding termination and 17 disallowed their reinstatements.”); Easley v. Empire Inc., 757 F.2d 923, 925-26, 932 (8th 18 Cir. 1985) (affirming trial court’s decision to limit back pay in failure to promote claim to

19 “the difference between the office manager’s and retail manager’s salary for the period 20 from the approximate date of [the employee’s] first request for promotion to the day of 21 her discharge” where court found that the employee’s subsequent discharge was 22 justified); Lewis v. Donley, 487 F. App’x 373, 374 (9th Cir. 2012) (“[T]he court reviewed 1 the evidence and found Lewis had failed to establish that but for her EEO complaint she 2 would not have been terminated, and concluded that she was actually terminated because

3 she took leave without her employer’s approval. This finding is not clearly erroneous, 4 and precludes the award of reinstatement or back pay.”). 5 Mr. Weil spends almost the entirety of his opposition brief advancing an argument 6 that backpay and front pay can only be limited by a “willful loss of earnings.” (See id. at 7 4-11.) Mr. Weil is correct that a willful loss of earnings can limit awards of back pay or 8 front pay, but he is wrong that that is the only context in which courts limit such awards.

9 If an employee is wrongfully terminated but fails to seek out other employment, then the 10 employee’s entitlement to back pay and front pay may be limited. See, e.g., Ford Motor 11 Co. v. E.E.O.C., 458 U.S. 219, 231-32 (1982). Similarly, even if an employer wrongfully 12 passes over an employee for a promotion, the employee’s entitlement to back pay and 13 front pay can still be limited if he or she is subsequently terminated for legitimate

14 reasons. See, e.g., Easley, 757 F.2d at 925-26, 932 (affirming trial court’s decision to 15 limit back pay in failure to promote claim because the employee’s subsequent discharge 16 was justified). In both scenarios, independent actions taken by the employee—failure to 17 seek substitute employment or workplace conduct that results in lawful termination— 18 severs the causal link between the employer’s discrimination and the employee’s lost

19 wages. 20 2. Application to Mr. Weil’s Failure to Promote Claim 21 Defendants argue that the Ninth Circuit’s rejection of Mr. Weil’s wrongful 22 termination claim means that Mr. Weil is not entitled to back pay or front pay after the 1 date of his termination. (See Mot. at 1-2, 12.) The court agrees. As the court has noted, 2 the question boils down to causation. See Rivera, 384 F.3d at 833 n.16; Gotthardt, 191

3 F.3d at 1155; Martini, 971 P.2d at 51-54. Here, the “undisputed evidence” shows that 4 Mr. Weil was performing poorly at his job at the time he was terminated, such that Mr. 5 Weil cannot even make the “minimal” showing necessary to establish a prima facie case 6 of wrongful termination. (See 4/29/19 Op. at 18-19.) Thus, in the “but for” world where 7 Defendants promoted Mr. Weil, Mr. Weil still would have been lawfully terminated on 8 account of his poor job performance.

9 Mr. Weil’s central argument that his loss in employment was not willful (Mot. at 10 9-11) misses the point. As noted above, although a showing that a terminated employee 11 willfully lost earnings or failed to adequately minimize his damages by finding substitute 12 employment is one of the instances in which courts limit back pay and front pay awards, 13 it is not the only situation in which courts limit such awards. See supra § III.B.1. One

14 other situation in which courts cut off back pay and front pay awards is where an 15 employee is terminated subsequent to the discriminatory conduct for independent, non- 16 discriminatory reasons. See, e.g., Easley, 757 F.2d at 925-26, 932. The latter scenario is 17 the one Mr. Weil is faced with here. Thus, the question is whether Mr. Weil can show 18 that Defendants’ alleged acts of discrimination in failing to promote him caused his

19 termination and subsequent damages. 20 Mr. Weil’s opposition to the current motion offers no evidence showing that 21 Defendants’ failure to promote him caused the poor performance that the Ninth Circuit 22 // 1 identified.4 (See generally Resp.) The most Mr. Weil offers on this causal question 2 appears in a footnote in his response brief where he argues that “had [Mr.] Weil been

3 promoted to Call Center Director in April 2013, he would not have been in the Call 4 Center Position, and subject to the supervision of Ms. Brown, from which he was 5 terminated in August 2013.” (See Resp. at 8 n.2.) There are at least two flaws with this 6 argument. First, the one case Mr. Weil cites in support of that claim, Johnson v. Spencer 7 Press of Maine, Inc., was a constructive discharge case that does not support Mr. Weil’s 8 argument. 364 F.3d 368 (1st Cir. 2004). The First Circuit explicitly distinguished the

9 circumstances in the constructive discharge context from circumstances like those present 10 here: 11 This issue is different from the issue of cutting off back and front pay where there is after-acquired evidence of wrongdoing that would have resulted in 12 the employee’s discharge from [the plaintiff’s original employer]. In such cases, the Supreme Court has held that both front and back pay are indeed 13 cut off at the time the defendant discovers evidence that would have led it to fire the plaintiff on legitimate grounds. 14 Id. at 382 n.14 (citing McKennon, 513 U.S. at 361-62). Because the evidence in this case 15 shows that Defendants terminated Mr. Weil on “legitimate grounds,” Johnson supports 16 Defendants’ position, not Mr. Weil’s. 17 Second, even if Mr. Weil could identify authority supporting his position, he does 18 not cite any evidence in support of his claim that he would not have been terminated had 19

20 4 In fact, the evidence Mr. Weil points to merely confirms the Ninth Circuit’s conclusion that Mr. Weil was terminated for poor job performance. (See Venneberg Decl. (Dkt. # 70) ¶ 3, Ex. A (stating that Mr. Weil was terminated due to his “formal PIP (Performance Improvement 21 Plan) and inability to overcome [his] performance gaps”; id. ¶ 4, Ex. B (stating that “Defendant terminated Plaintiff’s employment for performance issues and his continued failure to meet the 22 performance standards expected of an employee in his position”).) 1 he been promoted to a different position. (See Resp. at 8 n.2.) Without evidence, this 2 argument does nothing more than identify the kind of “metaphysical doubt as to the

3 material facts” that does not rise to the level of a genuine dispute of material fact. See 4 Scott, 550 U.S. at 380. 5 Thus, Defendants motion for partial summary judgment is GRANTED. The court 6 concludes that, even if Mr. Weil prevails on his failure to promote claim, he is not 7 entitled to front pay and is only entitled to back pay for the period between the date that 8 he was denied a promotion and the date of his discharge. However, because Defendants’

9 motion for partial summary judgment seeks summary judgment only on Mr. Weil’s 10 entitlement to front pay and back pay, the court’s ruling on this motion should not be 11 construed as a limitation on any other form of damages that may be available under Title 12 VII, 42 U.S.C. § 1981, or WLAD. Moreover, although Defendants haphazardly imply 13 that the court should find that Defendants failed to promote Mr. Weil on April 1, 2013,

14 and terminated him on August 15, 2013 (see Mot. at 12; Prop. Order (Dkt. # 68-1) at 15 1-2), the dates that Defendants failed to promote and subsequently terminated Mr. Weil 16 are factual issues that Defendants offer no argument on (see generally Mot. at 7-12). In 17 fact, Defendants explicitly state that the question presented by their motion “is a pure 18 question of law.” (Id. at 8.) Although the relevant dates may be undisputed or easily

19 susceptible to summary judgment, the court will not wade into factual issues without a 20 formal invitation. Thus, the court concludes that the specific dates that Defendants failed 21 to promote Mr. Weil and the date of his termination are outstanding factual issues. 22 // 1 IV. CONCLUSION 2 For the reasons set forth above, the court GRANTS Defendants’ motion for partial

3 summary judgment (Dkt. # 68). If Mr. Weil prevails on his failure to promote claim, he 4 is not entitled to front pay and is only entitled to back pay for the period between the date 5 that he was denied a promotion and the date of his discharge. 6 Dated this 8th day of November, 2019. 7 A 8 9 JAMES L. ROBART United States District Judge

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