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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. v. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, et al, MARK CHRISTENSEN,

HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Case No. C08-5191RBL Plaintiff, ORDER ON SUMMARY JUDGMENT

THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment. [Dkt. #44.] Defendant seeks dismissal of each of Plaintiff's five causes of action as articulated in his Amended Complaint. [Dkt. #12]. Plaintiff suggests that the Motion does not address all of the "incredibly specific detailed allegations in his complaint." The facts1 provided, and the law/fact analysis applicable to them, are difficult to ascertain from the parties' respective filings. The court has been left to mine the record to ascertain what the case and the motion actually involve. The Court has done so, and rules on the Motion as follows. A. Background. Plaintiff Christensen began his employment as a Washington State Corrections Officer in 1983.

In the future, counsel are urged to use an organizational structure which begins with a chronological statement of relevant facts, followed by an argument in the traditional "IRAC" [Issue, Rule, Analysis, Conclusion] format. Factual statements like the Plaintiff's "stream of consciousness" paragraph, starting on page 15 and concluding on page 20, are not helpful.
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At all relevant times, he was employed at the Corrections facility in Shelton, Washington. He claims that throughout his tenure he observed and reported an increase in inmate assaults on correctional officers, and was himself the subject of assault. He claims that these reports were not well received. In 2005, Plaintiff applied for "assault benefits" following an assault by an inmate. He claims that one of his superiors, Carol Porter, "protested" his benefits and also made inappropriate religious based comments to him. Specifically, Porter told him they needed to have a "come to Jesus meeting." Plaintiff grieved the religious comment, and the grievance was resolved when Porter agreed to withdraw her opposition to Plaintiff's assault benefits. He claims the benefits were not fully paid. Plaintiff claims he was then subjected to a "tremendous amount of discrimination and retaliation," though his Complaint does not specify the nature of the discrimination2 or retaliation. Plaintiff's primary complaints appear to be that he was not permitted to apply for assault benefits each time he was assaulted3; that the inmate(s) who assaulted him was not prosecuted; and the assault pay benefits he did receive were improperly subjected to income tax withholding by the DOC. He also claims that when he prevailed on his argument that the benefits were not to be taxed, the DOC somehow prevented him from filing an amended tax return, though the mechanism of that is not explained. Plaintiff claims he is permanently disabled with PTSD and back injuries (though he does not appear to assert claims based on these injuries). He also claims he has suffered emotional distress as the result of his treatment at the hands of the Defendants. Plaintiff also suggests that he was subject to improper discipline, perhaps in retaliation for his complaints about inmate assaults and/or his complaining about what he perceived to be improper taxation of assault benefits. His complaint does not specifically address the factual context of that allegation, though the Defendants appear to know what he is complaining about. They suggest that Plaintiff was disciplined for getting involved in a physical altercation with a coworker (Derek Kennedy) in front of inmates and other correctional staff, after Kennedy suggested that all Indeed, it appears Mr. Christensen is a white male. He claims repeatedly that he was a victim of discrimination, but does not ever identify the protected class in which he claims membership. The only potential classes are those relating to a disability, his religion, or perhaps his age. Plaintiff has not claimed he was the victim of age or disability-related discrimination, and has only briefly referenced his religion. Plaintiff claims instead, somewhat inconsistently, that he was discouraged or prevented from filing reports about inmate assaults because the DOC did not want to publicize the frequency of such events.
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of the guards and all Shelton residents were "red necks." Porter initiated an investigation, which was undertaken by Lt. Tony Dunnington. A pre-disciplinary Loudermill hearing, with union support for Mr. Christensen, followed. At the end of the hearing (and an extended period for Plaintiff to provide any additional information), he was issued a written letter of reprimand. This letter was based on Plaintiff's inability or unwillingness to de-escalate the situation, and the resulting risk of danger to inmates and staff. The letter was the second lowest form of discipline available. After receiving the letter, Plaintiff confronted the witnesses to the event about their statements. According to these witnesses, he intimidated them in response to their testimony. They complained, and another investigation was undertaken, this time by a counselor named Don MacWilliams. MacWilliams found that Plaintiff had called one of the officers who gave a statement in the prior investigation, a "cheese eating rat." Plaintiff was given a chance to respond, and another Loudermill hearing was held. Plaintiff was given a one month, 5% reduction in pay, from $3583 per month to $3414, effective August 16 to September 15, 2006. [Porter Dec., Dkt. #46 at Ex. P]. It appears that Plaintiff continues to work at the Shelton correctional facility, He filed this suit in state court on or about February 28, 2009, and Defendants timely removed it to this Court. [Dkt. #1]. Defendants seek dismissal of each of the claims enumerated in Plaintiff's amended Complaint [Dkt. #12]: (1) "Retaliation/Discrimination/Hostile Work Environment" in violation of Title VII; (2) "Emotional Distress"; (3) Violation of Civil Rights; (4) Failure to pay wages/benefits (a state law claim); and (5) Fraud /Misrepresentation/Injunctive Relief." Plaintiff does not agree that these are his only causes of action, and suggests that even granting the motion will not dispose of the case. His complaint, however, asserts these, and only these, causes of action. Finally, the parties each seek to strike portions of each others' submittals for various evidentiary reasons. Those Motions are DENIED (except where the parties have agreed that a portion should be stricken). In any event, the court has not based its rulings in this Order on any inadmissable material. Specifically, the Plaintiffs' narrative about events occurring prior to February 2006 (for which claims are time barred) has not been considered. Nor has the court relied on hearsay statements for the truth of the matters asserted. It has considered various documents in the context that certain communications were

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made, whether true or not. B. Summary Judgment Standard. Summary judgment is appropriate when, viewing the facts in the light most favorable to the

3 4 nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a 5 matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the 6 non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on 7 file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 8 324 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position 9 10 disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a 11 motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other 12 words, "summary judgment should be granted where the nonmoving party fails to offer evidence from 13 which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1220. 14 Additionally, this Court need not "scour the record in search of a genuine issue of triable fact." Keenan v. 15 16 C. 17 Plaintiff's Federal Title VII claims are analyzed under McDonnell Douglas Corp. v. Green, 411 18 U.S. 792 (1973). Washington law applies this same burden-shifting scheme to cases under RCW 49.60. 19 Hill v. BCTE Income Fund-I, 144 Wn.2d 172, 185-86 (2001)(adopting Title VII analysis from Reeves v. 20 Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)), though it does not appear that Plaintiff has 21 asserted state law discrimination claims. 22 In McDonnell Douglas, the Supreme Court articulated a three-part test for assessing the burdens 23 and order of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden 24 of proving by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas, 25 411 U.S. at 802. Second, if the plaintiff succeeds in demonstrating a prima facie case, the burden shifts to 26 the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. 27 Third, should the defendant carry this burden, the plaintiff then has an opportunity to prove by a 28 preponderance of the evidence that the legitimate reasons offered by the defendant were not its true
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is not sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual

Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal citation omitted). Burden-Shifting Scheme Under Title VII and RCW 49.60

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reasons but were a pretext for discrimination. Id. at 804. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978). 1. Plaintiff's Title VII Discrimination Claim Fails as a Matter of Law.

Defendants argue that Plaintiff's Title VII discrimination claim fails as a matter of law because Plaintiff does not and cannot establish that he is a member of a protected class. In order to prevail on a Title VII claim of discrimination, a plaintiff must first establish a prima facie case of discrimination consisting of the following elements: (1) plaintiff belongs to a protected class; (2) he was performing his job according to the employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) other employees with qualifications similar to his own were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Vasquez v. County of Los Angeles, 307 F.3d 884, n. 5 (9th Cir. 2002). Title VII [42 U.S.C.

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