Judge Richard McDermott

Noted for 9:30 am February 8, 2002

  

SUPERIOR COURT OF WASHINGTON

COUNTY OF KING

 

LARRY E. PITTMAN and SYLVESTER        )

PITTMAN, MICHAEL PITTMAN,                )           No.  99-2-52345-8 KNT

TERRANCE A. DAVIS, KEITH KERN,        )

YOLANDA ESKRIDGE, MICHAEL             )           RESPONSE IN OPPOSITION TO

DAVIS, GREGORY CODY, DAVID             )           DEFENDANT’S MOTION FOR

LISTIOWEL ABRUQUAH, ARTHUR           )           SUMMARY JUDGMENT TO DISMISS

FOREST, NATHAN A. KILCREASE,           )           PLAINTIFFS TERRANCE DAVIS,

JOSEPH A. DONKOR, DARREL CODY,     )           SHABAE DIQUAN AND KEITH KERN,

MARY COLEMAN, ERIC ARHIN,               )           AND TO DEFENDANT’S MOTION FOR

SHABAE DIQUAN, SIDNEY LANIER,        )           SUMMARY JUDGMENT TO DISMISS

RE-LASHIA SEARLES, JAMES GOODE,    )           ERIC ARHIN AND REQUEST FOR

CURTIS HOLLIS, and BENJAMIN               )           SANCTIONS

BARNES, individually,                                     )

                                                                        )

                                    plaintiffs,                       )

            v.                                                         )

                                                                        )

KING’S COMMAND FOODS, INC.,           )

a Washington business corporation,                   )

                                    defendant.                    )

____________________________________)

 

            Plaintiffs LARRY E. PITTMAN, et al, through their undersigned attorney, respond in opposition to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Terrance Davis, Shabae, Diquan and Keith Kern, and in opposition to Defendant’s Motion for Summary Judgment to Dismiss Plaintiff Eric Arhin and Request for Sanctions.  The plaintiff hereby incorporates by reference, the facts set forth and the legal authorities cited and argued in the Standards for Summary Judgment, the Material Facts, and the Relevant Substantive Law sections of the Response in Opposition to Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Michael Pittman, Sylvester Pittman, Relashia Searles and James Goode, in Opposition to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Abruquah, Barnes, Forest, Kilcrease, and Hollis; and in Opposition to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Michael Davis, Joe Donker, Yolanda Eskridge and Sidney Lanier (Plaintiffs’ Response I); and the facts set forth and legal authorities cited and argued in the Material Facts with Respect to Plaintiffs Mary Coleman, Darrel Cody, and Gregory Cody and the Relevant Substantive law sections of the Response in Opposition to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Mary Coleman, Darrel Cody and Greg Cody (Plaintiffs’ Response II).

SUMMARY OF THE ARGUMENT BELOW

            The plaintiffs argue below, under the heading “The Relevant Substantive Law, Continued” that there are several different standards that apply to employment discrimination cases.  Because multiple plaintiff employment discrimination cases have not reached publish opinion decision in the Washington courts, the standard for practice or pattern of discrimination has not been set forth in a Washington court decision.  However, United States v. Ironworkers Local 86, (9th Cir. 1971) 443 F.2d 544 provides that Congress intended to prohibit a pattern or practice of discrimination.  The Washington Legislature also intended to prohibit such a pattern or practice of discrimination with chapter 49.60 RCW.

            The legal authorities cited herein and in the other Responses by the plaintiffs inform the Washington Pattern Jury Instructions for employment discrimination cases and these standard instructions are attached as Exhibits to this Response.

THE MATERIAL FACTS WITH RESPECT TO PLAINTIFFS TERRANCE DAVIS, SHABAE DIQUAN, KEITH KERN, AND ERIC ARHIN

             When Terrance Davis worked with Bill Klosterman he picked up a tub with a forklift.  Mr. Klosterman told him to move it by hand instead: “Get your lazy ass off the forklift and move it with your fucking hands!”  Mr. Davis responded to this request by telling Mr. Klosterman that he need not yell and that they are both grown men.  Mr. Klosterman retorted with “Don’t fucking talk back to me.  Just do what I say.”  Mr. Davis simply walked away and moved the tub by hand.  Declaration of Darren Feider in Support of Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Terrance Davis, Shabae Diquan, and Keith Kern (Feider Declaration V) Exhibit B Transcript of Terrance A. Davis Deposition (Terrance Davis Dep.) pages 84-85.

            A co-worker, Roy Boberg, used racially inappropriate terminology with Mr. Davis.  Example: “You fucking coloreds[1] should know how to do this labor work.”  Id. page 86-87.

            Tim Markowicz was always yelling at people.  Id. page 100.  He often called Mr. Davis “boy”.  Id. Page 101.  He would say “Y’all people should know how to do that type of work.  Id. page 102.  He refused to explain why.  Id. page 103.  Mr. Davis heard Mr. Markowicz mumble “fucking nigger”[2] as he walked away.  Id. pages 103-104.  Sometimes he used the word “colored”.  Example: “You colored people are always messing up.” Id. page 130.  When Mr. Davis suggested “African-American”, Mr. Markowicz responded with “What the fuck ever.”  Id. page 131.

            Mr. Davis was officially a “helper-grinder”.  Because the “assistant grinder” position was vacant, Mr. Davis had to perform that function, and then fill out paperwork to qualify for the higher pay rate of an “assistant grinder”.  Therefore he went to Terry Smith and asked him about it, why not promote him to “assistant grinder” to eliminate the need to fill out paperwork for the higher pay rate.  Mr. Smith responded by telling Mr. Davis that he would get the position when he showed Mr. Smith that he deserved it.  Mr. Smith told Mr. Davis to get out of his office.  When Mr. Davis went back to the grinder, Mr. Smith, Tim Markowicz, and Pete DeWitt were watching him intently.  Then they demoted Mr. Davis from “helper grinder” to “packer” to “cool off” and busted his pay rate accordingly.  The union grievance procedure was ineffective.  Id. pages 105-113.  One of the problems with having to put in paperwork to get the higher pay rate for “assistant grinder” was that the paperwork got “lost” and Mr. Davis would not get the higher pay rate.  Id. page 117.  Sometimes management made a decision not to pay the higher pay rate even when the paperwork was filled out and turned in.  Id. page 122.

            When Mr. Davis worked with co-worker Jim Kimborowicz, Mr. Kimborowicz would casually make racial slurs, including about Hispanics.  Example: “You stupid little Mexicans, you can’t hurry up and do that?”  Id. page 128.

            Discipline policies were enforced against Mr. Davis.  On one occasion he was written up for punching out at the wrong time.  His defense was that they worked overtime was ineffective.  Id. page 134.  He was written up for absences due to being sick.[3]  Id. page 135.

            Mr. Davis was disciplined for changing out of his work clothes into his street clothes before punching out at the time clock.  This is a violation of the federal Portal to Portal Act, 29 U.S.C. §254.[4]  Id. page 146.

            Mr. Davis was written up for errors he made while running a new chicken meat combination on July 19, 2000.  He had never done this particular recipe before.  He asked Tim Markowicz for direction, because he did not know what the weights, calculations, and machine adjustments needed to be made to properly run the batch.  Mr. Markowicz refused to give such direction.  The batch was ruined and Mr. Davis refused to sign the write up.  Id. pages 158-162.

            Mr. Davis resigned from King’s Command because he was tired of the way he was talked down to and the smart remarks made Mr. Markowicz, Mr. Smith, and Mr. McCoy.  Id. page 169.

            Shabae Diquan was repeatedly told by King’s Command management personnel, including Terry Smith and Kirk McCoy, that if he worked for 90 days, he would be hired direct and no longer through Interim.   Feider Declaration V Exhibit C Transcript of Shabae Diquan Deposition (Diquan Dep.) pages 97-101.  Mr. Diquan applied for almost every position that was posted.  When he asked Mr. Smith about the grinder position, one of the jobs he applied for, Mr. Smith refused to discuss the matter in any meaningful way.  Mr. Smith joked about how Mr. Diquan did not need the job, and Mr. Smith mentioned drugs and cocaine.  Mr. Smith actually asked him where he could get cocaine.  Mr. Diquan told him that he did not sell illegal drugs.  This became a running game with King’s Command management, Mr. Smith and Mr. McCoy would ask him about buying cocaine, in front of the other employees.  He was told that “if we want another N, we’ll hire one.”  He was denied the grinder position without explanation by Mr. Smith.  He was denied the freezer position.  And when Mr. Diquan told Mr. Smith that he needed to work, Mr. Smith would ask him if cocaine did not pay enough.  Whenever Mr. Smith got tired of Mr. Diquan, he would tell him to get back to work or get off the premises.  When Mr. Diquan asked Mr. Smith why he was not selected for the assembly position, Mr. Smith rudely told him to get back to work and stop bothering him.  Mr. Smith said, “We’ll hire another nigger when we want one.”  He then told him that if he wanted to continue employment, to get busy and get out of his face.  He said this in front of other people, including Kirk McCoy and Larry Pittman.  Mr. Diquan reported these comments on a grievance form in the personnel office.  Id. pages 105-117, 120-121, 130.

            Mr. Diquan raised his grievances concerning racially inappropriate comments with Pete DeWitt because he was the plant supervisor.  He complained about being asked to provide cocaine and racial slurs, including “nigger”, “jigaboo”, “spear chucker”, and “pink monkey”.  He asked him to knock it off and to tell the others to knock it off.  He wanted them to just tell him the information he asked for, which is why he was not considered for the positions.  They did not stop using racially inappropriate language after he asked them to stop.  They never explained why he wasn’t hired.  Id. pages 127-128.

            Kirk McCoy did his share of the racial hazing and teasing about cocaine.  Id. page 130.  He, Mr. DeWitt, and Mr. Smith worked together, covered for each other, and all made racially inappropriate comments in each other’s presence and in the presence of Mr. Diquan and other employees.  Id. pages 131-132.

            Facts have already been set forth concerning Keith Kern have already been entered into evidence, Declaration of Keith Kern in Opposition to Defendant’s Motion for Summary judgment to Dismiss Plaintiff’s Michael Pittman, Sylvester Pittman, Relashia Searles and James Goode and in Opposition to Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Abruquah, Barnes, Forest, Kilcrease and Hollis (Kern Declaration).  These facts are summarized on page 15 of Plaintiffs’ Response I:

            When Keith Kern worked as a line lead, he was paid less than the hourly rate required by the collective bargaining agreement.  When he worked red meat, he was paid less than the red meat rate required by the collective bargaining agreement until after this lawsuit was served.  The white line leads and red meat workers said they always received the higher pay rates for those jobs.  His supervisor, Robert Thomas, always referred to him as “nigger”, “boy”, and “loser”, told racist jokes, and would liken him to a monkey.  He objected.  Kirk McCoy heard this.  Mr. Kern never witnessed Mr. McCoy tell Mr. Thomas not to talk that way.

 

Mr. Kern’s Declaration confirms his deposition testimony as to racial name-calling and other abusive language.  The whole time Mr. Kern was there Robert Thomas would push him around, throw his work out of his way, and refuse to help with clean-up tasks saying “That’s house nigger work.”  Kirk McCoy also abused him.  Constantly asked him and sometimes another black employee, Mary Coleman, if he was clocked in while dressing in the work clothes.  Mr. McCoy constantly harassed him during the time he was assigned to the raw line.  Mr. McCoy grabbed tools out of Mr. Kern’s hands, pushed him aside, called him stupid, and mumbled things under his breath.  Feider Declaration V Exhibit D Transcript of Keith Kern Deposition (Kern Dep.) pages 29-32.

            After he had been on kidney dialysis, in June 2000, he was near the end of his shift, with a load of beef fajita in the tumbling machine.  He had to get to his dialysis appointment.  He told Tim Markowicz and Greg Cody that there was a load tumbling and that he needed to leave the plant for his treatment.  The next day Mr. McCoy disciplined him for leaving and did not listen to his explanation of medical necessity.  Mr. McCoy always made abusive comments about his illness in addition to about his race.  Id. pages 32-33.

            When Mr. Kern first noticed the symptoms cause by his kidney problem, and tried to tell Terry Smith that something was wrong, Mr. Smith just told him to “step it up.”  The day before Mr. Kern went to the hospital, Mr. Smith told Mr. Kern that he was through with him, he was switching him to swing shift as a packer.  If he couldn’t do that job, he will be written up three times and then fired.  He refused to listen to Mr. Kern.  The next day Mr. Kern checked himself into the hospital.  Id. pages 33-39, 41.

            Mr. Kern perceived racial hostility.  Id. page 42.  He observed disparate treatment between the way he was treated for being absent to go to the hospital and a white employee Dave Cassatt.  He was only demoted after going “AWOL”, but he observed a black employee, Greg Cody, fired after being arrested and could not come in.  Id. pages 43-45.

            Additional examples of racial name calling, abuse, and discrimination permeate the rest of Mr. Kern’s deposition transcripts, Volumes 1 and 2, attached as Exhibit D to the Feider Declaration V.

.           Eric Arhin has been unable to obtain a visa to return from Ghana to attend depositions or other proceedings in this case, despite the best efforts by the undersigned attorney to secure his legal re-entry to the United States.  The events of September 11, 2001 and since have made these efforts even more difficult.  The undersigned attorney has not been successful in setting up a telephonic deposition under Civil Rule 30(b)(7) where Mr. Arhin can answer questions under oath in Ghana because counsel for the defendant has refused to participate in such a deposition.

NEW NON-PLAINTIFF DECLARATIONS

            Larry Shockley is a white man.  He worked for King’s Command Foods, Inc. from February 1983 through August 1999.  In his Declaration of Larry Shockley in Response to Defendant’s Motion to Dismiss, he sets forth that he observed a racially hostile work environment.  He described “Papa” Baer, his reference to Harvey Baer, the founder of the company, as being skeptical of hiring blacks.  He respected Darrel Cody.  He observed Michael Pittman get around sufficiently to perform the essential functions of his job, he did not know why he was hired direct.  He observed Robert Thomas treat Larry Pittman and Keith Kern disrespectfully.  He declared that Mr. Thomas had an attitude toward blacks. He then declares that he was treated leniently when he came to work drunk or high on illegal drugs, specifically crack.  He observed that the occurrence policy was not fairly and evenly applied.  He finally quit because he was fed up with the work environment, it made a non-racist white man uncomfortable.

            Royce McMillan is a black woman.  In her Declaration of Royce McMillon in Response to Defendant’s Motion for Summary Judgment she set forth the following facts:  She worked for King’s Command through a temporary agency for three days and refused to go back because of the racially hostile work environment.  Terry Smith said to her and three other black employees: “you need to hurry up, you people are working too slow,” and “I could get better workers in a nursing home”.  When she and another black woman were putting on their work clothes, Mr. Smith complained that they were already five minutes late and “that’s why there’s a high rate of unemployment with you people.”

            Ron Goodar is a black man.  In his Declaration of Ron Goodar in Opposition to Defendant’s Summary Judgment Motion he sets forth the following facts:  He worked for King’s Command through a temporary agency for two months, with Larry Pittman.  He reported to Terry Smith and Kirk McCoy.  He observed hostility to blacks but no hostility to whites and Asians.  They were particularly harsh with Larry Pittman.  Both Mr. Smith and Mr. McCoy called him and Mr. Pittman “boy” and other demeaning terms.  Mr. Goodar was required to work outside in the rain without a raincoat or rubber boots.  He replaced a white man who had been working with Mr. Pittman, being told that they would be more comfortable together.  Mr. Smith mumbled that they weren’t good enough to do anything else but shovel garbage or work in waste. When he asked to be hired directly, he was told that there were no openings.  When he asked for an application, they said they could not find any.

OTHER NON-PLAINTIFF DECLARATIONS

            In her Declaration of Katie Lemur in Opposition to Defendant’s Motion for Summary Judgment, Ms. Lemur declares that she was sexually harassed in addition to witnessing racial discrimination at King’s Command, Foods, Inc.  She specifically declares that Kirk McCoy fondled her and she was deterred from complaining by her need for the job. She also confirms disparate treatment in the application of the occurrence policy, blacks were immediately terminated on not rehired, whites were either not terminated or rehired after a week of unpaid vacation.

            In her Declaration of Denise Haynes in Opposition to Defendant’s Motion to Dismiss, Ms. Haynes that she was sexually harassed.  Terry Smith remarked that when she was hot and sweaty, she should remove her shirt because she would look pretty good in her sports bra.  She observed Kirk McCoy use terms like “boy”, “jungle boogie” and other racially inappropriate terminology with respect to blacks.  Mr. McCoy told racial jokes and always used foul language.  She found this offensive as she was raising two black children.

            Ms. Haynes is gay.  Mr. McCoy made comments about sexual acts he imagined between her and her room mate Ms. Lemur.  Because she opposed the sexual harassment and the racial discrimination, the occurrence policy was enforced against her and she was fired.  The last occurrence resulted when she was five minutes late for an unforeseen circumstance. She observed a number of adverse employment actions taken against Larry Pittman, Michael Pittman, Mary Coleman, Keith Kern, Hispanic employees, and a person who was electrocuted on a wet platform.  After an employee named David was cut on the pizza line they were not allowed to clean the blood off the equipment enough for her to be confident that it was sufficiently sanitized.

            In his Declaration of Terry Cramer in Opposition to Defendant’s Motion for Summary Judgment Mr. Cramer declared that Shirley Grennan was forced to take a machine operator job she did not want while this same position was denied to Larry Pittman who wanted it.

THE RELEVANT SUBSTANTIVE LAW, CONTINUED

             The plaintiffs allege disparate treatment with respect to black and Native American employees.  The defendant moves to dismiss 4 more of the plaintiffs.  However, if there was a policy or practice to discriminate against non-white employees, that is a violation of chapter 49.60 RCW.  During the hearing on January 18, 2002, this Court asked about the standard of law to be applied to this case.  Because there are so many ways to discriminate against people in employment on the basis of race, gender, age, or other prohibited ground, there is more than one standard.  The trick is to ascertain the facts of a case and then to determine which is the appropriate standard.

            Grimwood v. University of Puget Sound, (1988) 110 Wash. 2d. 355, 362-363, 753 P. 2d. 517 adopted Loeb v. Textron, Inc., (1st Cir. 1979) 600 F. 2d. 1003, 1014-1017 for use in chapter 49.60 RCW cases.  Loeb at 600 F. 2d. 1016-1017 found that the burden shifting test defined in McDonnell Douglas v. Green, (1973) 411 U.S. 792, 802-805, 36 L. Ed. 2d. 668, 93 S. Ct. 1817 is not the exclusive method of proving discrimination, citing International Brotherhood of Teamsters v. United States, (1977) 431 U.S. 324, 358, 52 L. Ed. 2d. 396, 97 S. Ct. 1843.  Grimwood itself contemplates more than one test.  The burden shifting test of McDonnell Douglas is to allow a plaintiff alleging discrimination an opportunity to have his or her day in court where there is an absence of direct evidence.  This is because employers who discriminate do not always use racially offensive language and their motives, upon which a claim for discrimination is dependent, are not always apparent.  However, racially inappropriate language[5] can be such direct evidence, which is why Fisher v. Tacoma School Dist. No. 10, (1989) 53 Wash. App. 591, 595-596, 769 P. 2d. 591 adopted the hostile work environment test first developed for sexual harassment and gender discrimination to racial discrimination.

            The problem in this case, which might lead to confusion as to appropriate standard, is that the cases cited usually arise from individuals alleging discrimination, while this case involves at least 19 plaintiffs out of 23 originally named plaintiffs.  This is a group plaintiff case.  The defendant corporation seeks to have this Court determine on summary judgment whether there are facts sufficient for each individual plaintiff to go forward to trial under the accepted summary judgment standards of genuine issue of material fact without any consideration of the facts as to what happened to the other black employees of King’s Command.  However, this Court, during the hearing on January 18, 2002, noted to Darren Feider, counsel for the defendant, that there is more than sufficient evidence to allow a rational trier of fact to find that there was a practice of discrimination against non-white employees at King’s Command Foods, Inc.

            That alone should be sufficient to defeat all of the summary judgment motions.  If there is a practice of discrimination, then there is at least a mixed motive, with the discriminatory treatment on the job followed by firing or constructive discharge in the case of each plaintiff, separate causes of action in a discrimination case under chapter 49.60 RCW,[6] whatever the existence of valid reasons for such adverse employment action with respect to such plaintiff.

            The prima facie case for group discrimination is simply that employer treats some employees less favorably than others because of race, Johnson v. Dept. of Social and Health Services, (1996) 80 Wash. App. 212, 226, 907 P. 2d. 1223, quoting Shannon v. Pay N’ Save Corp., (1985) 104 Wash. 2d. 722, 726, 709 P. 2d. 799, which in turn quoted Teamsters at 431 U.S. 335 n. 15.  This is where Shannon set forth the disparate treatment and disparate impact tests and applied these tests to a discrimination suit brought under chapter 49.60 RCW.  But a disparate treatment claim need not be limited to the case where an individual is alleging discrimination.  Shannon at 104 Wash. 735 found that while Stieler v. Spokane School Dist. 81, (1977) 88 Wash. 2d. 68, 74, 558 P. 2d. 198 determined that an individual plaintiff cannot use statistics to establish a prima facie case, he must show that he is qualified for the position in question, it does not prohibit the use of statistical evidence to rebut as pretext the employers claim of legitimate nondiscriminatory reasons for the employment decision:

“[s]tatistics showing a general pattern of discrimination are probative on the question of whether the reasons given for a particular action are pretextual.” Bauer v. Bailar, 647 F.2d 1037, 1045 (19th Cir. 1981); see also Talley v. United States Postal Serv., 720 F.2d 505, 507 (8th Cir. 1983), cert. denied, 466 U.S. 952, 80 L. Ed. 2d 541, 104 S. Ct. 2155 (1984); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).  Stieler does not prohibit the use of statistics in this context, and we agree with the federal courts that statistics are relevant to show that an employer’s asserted justification for not hiring or promoting the plaintiff is a facade for discrimination.

 

            Stieler, at 88 Wash. 2d. 73 notes that:

            In this court, the respondent cites United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), a federal case in which it was held that the statistical data and other evidence offered were sufficient to show a ‘pattern of discrimination.’  This was an action brought by the Attorney General alleging a ‘pattern or practice’ of resistance to full employment of blacks in violation of title 7 of the Civil Rights Act of 1964.  When he had shown such a pattern, he had sustained his burden of proof.  It was not a suit by an individual alleging discrimination.

 

Stieler was a suit by an individual alleging discrimination, therefore the Stieler Court went on to find that the McDonnell Douglas case was more to the point.  Stieler at 88 Wash. 2d. 74.

            Where at least 19 plaintiffs are alleging discrimination against them on the basis of race, the federal decision in Ironworkers “is persuasive in interpreting RCW 49.60.”, Xieng v. Peoples National Bank, (1993) 120 Wash. 2d. 512, 531, 844 P. 2d. 389.  Ironworkers at 443 F. 2d. 551-552 found as to pattern or practice:

            Here, even if we were to accept appellants’ assertion that statistics alone cannot show as a matter of law that there has been a violation, it would not command our overturning of the conclusions of law reached by the district court. We are not faced with a situation where a court has relied upon statistical data alone. On the contrary, in its findings, the district court cited specific instances of discrimination on the part of the unions and apprenticeship committees, thus the statistical evidence is complementary rather than exclusive. We see no merit in appellants’ complaint regarding the use of statistics.

            Appellants next argue that the conclusions reached by the court that appellants engaged separately in a ‘pattern or practice’ of resistance are wholly unsupportable. They equate the phrase ‘pattern or practice’ with ‘uniformly engaged in a course of conduct aimed at denying rights secured by the Act.’  We feel that such an interpretation is overly restrictive and does violence to the meaning intended by Congress to be accorded the phrase.  Moreover, it is our firm belief that the conclusions reached by the district court are not clearly erroneous and must be affirmed.

            The phrase is not defined in Title VII, but some guidance is offered by an examination of the legislative history of this and other Civil Rights Acts employing the same words.  Commenting on the meaning to be accorded the phrase in the debates on the Civil Rights Act of 1964, Senator Humphrey stated:

* * * Such a pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine or of a generalized nature.[7]

            In testimony before the House Judiciary Committee on the Civil Rights Act of 1960.[8] Deputy Attorney General Walsh said:

Pattern or practice have their generic meanings.  In other words, the court finds that the discrimination was not an isolated or accidental or peculiar event; that it was an event which happened in the regular procedures followed by the state officials concerned.[9]

            In United States v. Mayton 335 F.2d 153. 158 (5th Cir. l964), an action under the Civil Rights Act of 1960, in which the court found that racial discrimination in the voter registration process was pursuant to a pattern or practice, the court addressed itself to defining the words and concluded that they were not intended to be words of art.’ See also United States v. Ramsey, 331 F.2d 824. 837 (5th Cir. 1964) (Judge Rivas, concurring and dissenting in part). With respect to the phrase, Senator Keating commented that ‘the ‘pattern or practice’ requirement means only that the proven discriminatory conduct of defendants was not merely an isolated instance of racial discrimination.’ 106 Cong. Rec. 7767.

            We are firmly convinced that it was the intent of Congress that a ‘pattern or practice’ be found where the acts of discrimination are not ‘isolated, peculiar or accidental’ events. The words were not intended to be words of art.  Applying this definition in the instant case, we are compelled to concur with the district court’s findings that appellants engaged in a ‘pattern or practice’ of discrimination.  The findings are well documented wit statistical evidence showing a distinct absence of black membership in the unions and the apprenticeship programs: the failure of the union hiring halls to grant blacks referrals; many overt acts of discrimination on the part of appellants: and many facially neutral employment practices which had a differential effect upon blacks. We are not concerned with isolated or accidental acts by appellants but a ‘pattern or practice’ of resistance by them which has had an effect of denying black workers equal job opportunities in the Seattle area.

            Therefore, we hold that the conclusions reached by the district court finding appellant unions and joint apprenticeship and training committees to have engaged in a pattern or practice of discriminatory conduct with respect to employment opportunities in the construction industry are not clearly erroneous.

 

            Just as Congress clearly intended to outlaw a pattern or practice of discrimination with respect to employment with the Civil Rights Act of 1964, the Washington Legislature intended to outlaw such a pattern or practice with chapter 49.60 RCW.  RCW 49.60.010 reads in significant part:

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

 

            Because of this sentence in the opening section of the Washington Law Against Discrimination, the criteria set forth in Ironworkers for a pattern or practice of discrimination under the federal law clearly apply to this state’s law.

            The facts set forth in this case show King’s Command Foods, Inc. engaged in a practice of discrimination against black employees and black applicants for employment.  The acts of discrimination for which there is admissible evidence are not isolated, peculiar, or accidental events.  A rational trier of fact can find, as this Court noted during the hearing on January 18, 2002, that from the evidence submitted, there was an unlawful pattern or practice of racial discrimination in employment and therefore, all of the plaintiffs are entitled to a trial by jury to determine the fact of racial discrimination.

            These specific facts as herein above cited and in the plaintiffs’ other Responses to the defendant’s motions for summary judgment include racist name calling, comments and jokes by decision makers, tolerance by management of the racist taunting and insults by co-workers, and disparate treatment by management of its black employees and black job applicants in hiring, promotion, employee discipline, discharge, and the other terms and conditions of employment.

            A rational trier of fact can, with this evidence, find that there was unlawful racial discrimination in employment with respect to each and every plaintiff and that there was a hostile work environment[10] that affected the terms and conditions of employment for all of the black employees and for the Native American employee.

            The statute and case law cited in this and in the previous responses inform the Washington Pattern Jury Instructions as published by the Washington Supreme Court Committee on Jury Instructions for employment discrimination, with notes on use and comments, attached as Exhibits to this Response.  WPI 330.01 incorporates the substantial factor test.  If there is a pattern or practice of disparate treatment, then a rational trier of fact could find that race is a substantial factor in every employment decision with respect to the plaintiffs.  Same with a racially hostile work environment.  WPI 330.02, WPI 330.03 are disparate impact instructions, however, plaintiffs are not alleging that any particular practice will have a disparate impact which could be justified as a bona fide occupational qualification under WPI 330.04, the plaintiffs are alleging that every practice by King’s Command Foods was applied disparately to the black employees.  Disparate treatment fits within WPI 330.01.  WPI 330.05 is the instruction for retaliation for opposing discrimination.  Some of that was going on as well, particularly against Denise Haynes.  WPI 330.23 sets forth the standards for proving hostile work environment in a sexual harassment case.  Because hostile work environment can also be a form a racial or other type of discrimination, the plaintiffs intend to propose an instruction based on WPI 330.23 and adjusted for racial discrimination.  WPI 330.81 instructs the jury how to calculate damages if employment discrimination is found.  WPI 330.82 defines how front pay damages can be calculated.

CONCLUSION

            For these reasons, the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Terrance Davis, Shabae, Diquan and Keith Kern and the Defendant’s Motion for Summary Judgment to Dismiss Plaintiff Eric Arhin and Request for Sanctions should be denied.

RESPECTFULLY SUBMITTED, January 28, 2002,

 

                                                            ____________________________________

                                                            Paul H. King                             WSBA #7370

                                                            Attorney for Plaintiff