Judge Richard McDermott

Noted for 9:30 am January 25, 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 MARY COLEMAN,

JOSEPH A. DONKOR, DARREL CODY,     )           DARREL CODY AND GREG CODY

MARY COLEMAN, ERIC ARHIN,               )

SHABAE DIQUAN, SIDNEY LANIER,        )

RE-LASHIA SEARLES, JAMES GOODE,    )

CURTIS HOLLIS, and BENJAMIN               )

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 Mary Coleman, Darrel Cody and Greg Cody.  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 Plaintiff Michael Davis, Joe Donker, Yolanda Eskridge and Sidney Lanier.

THE MATERIAL FACTS WITH RESPECT TO PLAINTIFFS MARY COLEMAN, DARREL CODY AND GREGORY CODY

            Darrel Cody was called racially inappropriate terms by Kirk McCoy, including “tarbaby”.  Declaration of Darren Feider in Support of Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Mary Coleman, Darrel Cody, and Greg Cody (Feider Declaration IV) Exhibit A Transcript of Darrel Cody Deposition (Darrel Cody Dep.) pages 28-29.  Kirk McCoy also mentioned to Mr. Cody that the founder of the company, Harvey Baer, would not have blacks working for him.  Id. page 30.  Mr. McCoy, Mark Wallace, Tom Butler, and Peter DeWitt commented in the break room, where Hispanic workers sat, that it was the “south of the border” table, in the presence of numerous employees.  Id. page 32-34.  In spite of having a high ranking position in the plant, two white employees with lower ranking positions and fewer responsibilities, Tom Butler and Tim Markowicz, were paid more money than Mr. Cody.  Mr. Butler was the nephew of the plant manager.  Id. pages 43-54, 74-77.  Jody Lambert and Mr. Markowicz received more pay when they were training other people.  Id. pages 55-57.  However, Mr. Cody did not receive pay differentials when he trained other people, whether to grind meat or to operate machines. Id. pages 58-61.  He often did not receive higher pay rates for work that qualified him for higher pay rates.  Id. page 135.

            The occurrence policy was strictly applied to Mr. Cody.  Id. pages 77, 85, 86-89, 93-95, 97-99, 115-116.  He was ultimately fired for “occurrences”. Id. page 117.  It was enforced when he requested to leave early to make a court appearance, probably for a charge of driving while under the influence (DUI).  Id. 94-95.  It was also enforced when he was in a hospital with a fever of 105 F due to bronchitis.  He was required by Terry Smith to bring hospital records in addition to the doctor’s note.[1]  He refused to sign it because it was a medical leave.  He believed that the collective bargaining agreement did not allow an “occurrence” if an absence was excused for medical reasons.  Id. pages 89-92, 97-99, 106, 121.  A white employee, Shawna Flowers, was allowed to make up hours missed instead of getting an “occurrence”. Id. page 105.  He was written up for a low temperature reading when a multipurpose oven was slow cooking a batch of meatloaf, even though he explained that the temperature gauge was constantly inconsistent in its reading.[2] Id. pages 78-79.  He was suspended and demoted after defending himself from an assault by Chuck Imhoff.  Mr. Imhoff was not demoted.  Id. pages 80-81.  Another reason for the demotion is indicated when Kirk McCoy told Mr. Cody that Dave Horn did not want him to be a lead person.  Id. pages 82-83.  Mr. Smith made the decision to demote.  Id. page 84.  Mr. Cody had a personality conflict with a white employee, Mark Ryan.  Id. pages 85-86.

            Mr. Cody was written up for “standing around”.  He was discussing safety issues with a United States Department of Agriculture (USDA) employee while observing the machine operators over whom he had responsibility as a lead.  Terry Smith saw him and blew a gasket over him “standing around”.  Id. 100-101, 109-110.  His relationship with Mr. Smith deteriorated during the last year he worked at King’s Command.  Id. pages 135-136.  Mr. McCoy started not allowing him all of his responsibilities as head machine operator.  It humiliated him.  Id. 136-138.  Mr. McCoy was a difficult supervisor to work with, he would interfere in the production by suddenly pushing control buttons all over the machine and messing up the product.  This left Mr. Cody a big mess to clean up.  Id. page 141.  Other people called Mr. McCoy “asshole” because of his personality and behavior.  Id. pages 141-142.

            Gregory Cody applied for work at King’s Command even though his brother Darrel Cody told him that it had a racist atmosphere, he needed a job and income and was willing to work.  Feider Declaration IV Exhibit B Transcript of Gregory Cody Deposition (Gregory Cody Dep.) pages 49-52.  He worked as a grinder helper in a crew with three white coworkers, with whom he had disagreements over the work.  They ordered him around in a manner that was less than respectful.  Id. 65-69.  These white coworkers called him “nigger” and “black motherfucker”.  Id. 76.  While supervising Robert Thomas he witnessed him get into an argument with Keith Kerns and call him racially inappropriate terms.  Id. pages 124-126.

            Terry Smith was ready to suspend him for three days because of a wrong batch.  It turned out that the specification sheets were wrong and the error was not Mr. Cody’s fault, no suspension.  But Mr. Cody was guilty until proven innocent in the mind of Mr. Smith.  After the proof, Mr. Smith tore up the suspension notice and rudely told Mr. Cody to get out of his office and go back to work.  When it came to disciplining grinders for mistakes that ruined batches, there was disparate treatment between the races.  The whites were treated leniently and the blacks were treated harshly, and Mr. Smith was ready to suspend Mr. Cody before Mr. Cody had a chance to explain.  Id. pages 134-140, 145-146, sheet with pages 141-144 missing from plaintiffs’ copy of Exhibit B.  Mr. Smith threatened him with firing if he did not show up when he had a car problem.  Id. page 151.  The occurrence policy was enforced against him when he called in sick and told Mr. Smith he was vomiting.  It was not appropriate for a person in such condition to be handling food.  Id. page 155. The occurrence was enforced whether he was sick or had car problems.  Id. page 166.  In his observation, blacks who were terminated under the occurrence policy were never hired back but employees of other races were.  Id. pages 189-190.  Mr. Cody received an employee warning that identifies him as having been sick.  Id. pages 190-191.  He was terminated for being absent two days when he was arrested.  He and Yolanda Eskridge had an argument, neighbors called the police and he was hauled off to jail.  Because King’s Command does not accept collect calls from a prison, he had no way of calling in and explaining the problem.  He did not grieve the firing because experience taught him that the union was ineffective.  He was actually relieved to no longer be exposed to the circumstances at King’s Command.  Id. pages 202-209.

            Mr. Cody was never transferred to a job off the grinding platform, but numerous white grinders were moved off the grinding platform to machine operator or other jobs with similar pay and less physical demand.  He witnessed Kirk McCoy tell Larry Pittman that he not getting a job in the red meat department that was posted.  Id. page 221. He grieved the refusal to move him off the grinding platform with the union, it was ineffective.  Id. page 224.

            Mary Coleman was working at King’s Command as a packer.  She and other black employees, Larry Pittman and Keith Kern, applied to work in the red meat department.  She delivered her application to Terry Smith.  Several weeks later, the position was filled by a white man named Dennis hired off the street.  Feider Declaration IV Exhibit C Transcript of Mary Coleman Deposition (Coleman Dep.) pages 22-29.  She was repeatedly passed over for line end lead positions, in favor of white female employees with less seniority that her, before finally being promoted to such a position, in December 1999, after this lawsuit was filed.  She volunteered to fill in at that position to learn the position.  Id. pages 55-71, 218.

            She witnessed Kirk McCoy make a comment about Martin Luther King, Jr. Day, around 10:30 to 11:00 am January 15.  He asked her and another employee “Who killed Martin Luther King, Jr.?”  She and the other employees said the killer’s last name was Ray.  Mr. McCoy spoke on the telephone and then came back with “You know what?  We should celebrate James Earl Ray Day, you know, James Earl Ray Day for killing -- you know, for killing Martin Luther King, we should have a day for him.”  Id. pages 75, 223.[3]

            When she and Keith Kerns were clocking in with three or four white employees, Mr. McCoy told her and Mr. Kerns that they needed to have their work coats on before clocking in, but made no similar demand upon the white employees.  This is a violation of the federal Portal to Portal Act, 29 U.S.C. §254.[4] as well as discrimination in employment on the basis of race.  Id. pages 76-77, 219-222.

            She observed disparate treatment of employees who were fired.  Some of the white employees were told to reapply and were hired back.  But she did not observe black employees who were fired hired back.  Id. pages 82-84.  She observed that King’s Command management picked on the black employees more than they picked on the white employees.  Id. pages 107, 126-127.  Tim Markowicz was a difficult person with a bad attitude and behavior.  Id. pages 130-131.

            She liked her job, but did not like the way Mr. McCoy treated her, he did not like black people.  Mr. McCoy harassed her on the job, particularly when things got difficult or hectic.  He expected her to abandon her line and help make boxes when she did not have any training or experience in making boxes.  Terry Smith did not help her out and her complaint with the union shop steward was ineffective.  Id. pages 224-227.  Ms. Coleman was written up for “loafing” but another person on her packing line, Nina Rosario, was not written up.  Id. pages 249-251.  Mr. McCoy was always saying nonsensical things to her that she had to ignore.  If she did not ignore him when hew wasn’t making any sense, she would get grouchy and it would ruin her performance and ability to get along with the other employees.  Id. pages 252-256.  Reporting him and his behavior is ineffective.  Id. page 257.

            Mary confirms these facts in her Declaration of Mary Coleman in Opposition to Defendant’s Motion for Summary Judgment.  Attached to her Declaration is a true and correct copy of one of her applications for line end position.

            Darrell Cody witnessed Kirk McCoy yelling at Mary Coleman a lot.  Darrell Cody Dep. page 140.

            Attached to the Declaration of Judith Calhoun Authenticating Documents Submitted by Defendant in Response to Plaintiffs’ Discovery Requests Regarding Occurrence Policy (Calhoun Declaration) are true and correct copies of documents kept by King’s Command recording absences and tardies and the discipline meted out for these absences and tardies.  Some of these documents pertain to named plaintiffs in this case.  With each document that concerns a plaintiff, either a half occurrence for a tardy or a full occurrence for an absence was recorded and added to the plaintiff’s cumulative total.  In the case of plaintiff Larry Pittman, he received at least 1 1/2 occurrences added to his total for only one absence.

            In the case of non-plaintiff employees, the name of the employee was redacted.  The race and gender of these employees are not indicated.  However, most of the non-plaintiff employees at King’s Command are either white, Hispanic, or Asian, while the plaintiffs are 20 blacks and one Native American.  The documents concerning the tardies and absences of the non-plaintiff employees indicate that in most cases, neither half occurrence for a tardy nor a full occurrence for an absence was assessed or added to the employee’s cumulative total.  While it is true that the employee in question was warned that another such incident would result in termination, there is no recording of the occurrence nor any statement of what the cumulative total is at the time the document was created.  In the case of one non-plaintiff employee, he was terminated after being absent for 11 days for abandoning his job.  However, plaintiff Mike Davis was terminated for abandoning his job after being absent for only two days.

THE RELEVANT SUBSTANTIVE LAW WITH RESPECT TO PLAINTIFFS MARY COLEMAN, DARREL CODY AND GREGORY CODY

             The plaintiffs allege disparate treatment with respect to black and Native American employees.  The defendant moves to dismiss 3 more of the plaintiffs.  However, if there was a policy or practice to discriminate against non-white employees, then it had mixed motives with respect to each plaintiff.  Where there are mixed motives, Washington courts, in applying chapter 49.60 RCW, have settled upon the “substantial factor” test.

            Furthermore, Washington courts have recognized that unlawful discrimination can be proven if there is established that the plaintiffs were presented with a hostile work environment that affected the terms and conditions of their employment.  Washington v. The Boeing Co., (2000) 105 Wash. App. 1, 10, 19 P. 3d. 1041; Fisher v. Tacoma School Dist. No. 10, (1989) 53 Wash. App. 591, 595-596, 769 P. 2d. 591; and Glasgow v. Georgia-Pacific Corp., (1985) 103 Wash. 2d. 401, 406-407, 693 P. 2d. 708.  To establish hostile work environment the employee must prove: 1) the harassment was unwelcome, 2) the harassment was because of the unlawful ground, in this case race, in other cases, gender, national origin, disability, or age, 3) the harassment affected the terms and conditions of employment, and 4) the harassment is imputed to the employer.  In this case, there is plenty of evidence, in the deposition testimony attached to the Darren Feider Declarations, to prove all four elements of hostile work environment on the basis of race.

            The plaintiffs meet the standard of Kahn v. Salerno, (1998) 90 Wash. App. 110, 117, 951 P. 2d. 321 by setting forth specific facts as to each essential element of discrimination.  These specific facts as herein above cited include racist name calling, comments and jokes by decision makers, tolerance by management of the racist taunting and insults,[5] management’s refusal to promote Mary Coleman to line end lead until after this lawsuit is filed but after promoting similarly situated white employees with less seniority, the counting of sick leave toward a policy of discipline of employees for absenteeism, such policy enforced without any flexibility against the black employees for such unforeseeable events as illnesses, and other facts set forth to show that not only was race a substantial factor in the treatment of every plaintiff in this action, but that it was a policy or practice by King’s Command Foods, Inc. to treat its nonwhite employees differently than its white employees to the disadvantage of its nonwhite employees.

            Furthermore, while the defendant has not been fully complying with plaintiffs’ discovery requests, the documents attached to the Calhoun provide direct evidence of disparate treatment of employees on the basis of race in the application of the occurrence policy.  All evidence submitted indicate that this policy was strictly enforced against the black employees, even when the black employees were calling in sick, had mechanical breakdowns of their automobiles, or in one case held up by a terrible traffic accident on Interstate 5 in Federal Way that injured a Washington State Patrol officer.  In that case, the half occurrence was not lifted when Curtis Hollis presented a written record of the incident from the Washington State Patrol.  However, the redacted documents for non-plaintiff employees indicate that the occurrence policy was not strictly enforced against non-black employees.  Because the accumulation of “occurrences” leads to employee discipline and firing, this evidence of disparate treatment of employees on the basis of race is direct evidence of unlawful racial discrimination.

            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.  A rational trier of fact can find that the defendant corporation had a policy or practice of disparate treatment of its employees on the basis of race.  A rational trier of fact could conclude that there was a hostile work environment that affected the terms and conditions of employment for all of the black employees and for the Native American employee.

            For the reasons stated herein, the Defendant’s Motion to for Summary Judgment to Dismiss Plaintiffs Mary Coleman, Darrel Cody and Greg Cody should be denied.

RESPECTFULLY SUBMITTED, January 14, 2002.

 

                                                            ____________________________________

                                                            Paul H. King                             WSBA #7370

                                                            Attorney for Plaintiff