Judge Richard McDermott

Noted for 9:00 am January 18, 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 MICHAEL PITTMAN,

JOSEPH A. DONKOR, DARREL CODY,     )           SYLVESTER PITTMAN, RELASHIA

MARY COLEMAN, ERIC ARHIN,               )           SEARLES AND JAMES GOODE, IN

SHABAE DIQUAN, SIDNEY LANIER,        )           OPPOSITION TO DEFENDANT’S

RE-LASHIA SEARLES, JAMES GOODE,    )           MOTION FOR SUMMARY JUDGMENT

CURTIS HOLLIS, and BENJAMIN               )           TO DISMISS PLAINTIFFS ABRUQUAH,

BARNES, individually,                                     )           BARNES, FOREST, KILCREASE AND

                                                                        )           HOLLIS, AND IN OPPOSITION TO

                                    plaintiffs,                       )           DEFENDANT’S MOTION FOR

            v.                                                         )           SUMMARY JUDGMENT TO DISMISS

                                                                        )           PLAINTIFFS MICHAEL DAVIS, JOE

KING’S COMMAND FOODS, INC.,           )           DONKER, YOLANDA ESKRIDGE, AND

a Washington business corporation,                   )           SIDNEY LANIER

                                    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 Michael Pittman, Sylvester Pittman, Relashia Searles and James Goode; to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Abruquah, Barnes, Forest, Kilcrease, and Hollis; and to the Defendant’s Motion for Summary Judgment to Dismiss Plaintiff Michael Davis, Joe Donker, Yolanda Eskridge and Sidney Lanier.

STANDARDS FOR SUMMARY JUDGMENT

            Trimble v. Washington State Univ., (2000) 140 Wash. 2d. 88, 92-93, 993 P. 2d. 259:

            The standard of review on summary judgment is well settled.  Review is de novo; the appellate

 court engages in the same inquiry as the trial court.  Benjamin v. Washington State Bar Ass'n, 138

 Wn.2d 506, 515, 980 P.2d 742 (1999).  Summary judgment is appropriate if there is no genuine issue

 of material fact and the moving party is entitled to judgment as a matter of law.  Clements v. Travelers

 Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c).  All facts submitted and all

 reasonable inferences from them are to be considered in the light most favorable to the nonmoving party.

 Clements, 121 Wn.2d at 249.  “The motion should be granted only if, from all the evidence, reasonable

 persons could reach but one conclusion.” Clements, 121 Wn.2d at 249 (citing Wilson v. Steinbach, 98

 Wn.2d 434, 656 P.2d 1030 (1982)).  However, bare assertions that a genuine material issue exists will

 not defeat a summary judgment motion in the absence of actual evidence.  White v. State, 131 Wn.2d 1,

 9, 929 P.2d 396 (1997).

            Absent a genuine issue of material fact, the matter is whether the trial court correctly applied the relevant substantive law.  Baldwin v. Trailer Inns, Inc., (9th Cir. 2001) 266 F. 3d. 1104, 1111 and Impecoven v. Dept. of Revenue, (1992) 120 Wash. 2d. 357, 365, 842 P. 2d. 752.

THE MATERIAL FACTS

            One plaintiff, Nathan Kilcrease, is a Native American.  The other 20 plaintiffs are blacks of African ancestry.  David Listiowel Abruquah, Joseph A. Donkor, and Eric Arhin were born in Ghana.  Joseph A. Donkor is a naturalized United States citizen.  Abruquah and Arhin are citizens of Ghana.  The other 18 plaintiffs were born citizens of the United States.[1]

            Sylvester Pittman telephoned Terry Smith of King’s Command Foods, Inc. in 1999 to inquire about job openings.  Mr. Smith told Mr. Pittman to come on in.  When he met Mr. Smith in person, Mr. Smith told him “There is no job and there won’t be a job.”[2]

            Relashia Searles worked at King’s Command Foods as an Interim temporary employee on two occasions in 1996-1997, with only a few weeks in between.  While there she packed meatballs.  When she asked for an application for direct employment by King’s Command Foods, she was told that she “wouldn’t need one because I wasn’t going to be there that long.”  Her impression of how her supervisor and co-workers spoke to her was “snappy”.  The way she was treated “wasn’t businesslike”.  She asked for an application “quite a few times”, but “never did get an application.”  People around the plant talked about how “they’re always hiring” and how she was advised “You should go and talk to --- and he’ll get you an application”, but then not getting an application when she talked to him.  This happened at least three times.  King’s Command hired five people during the time Ms. Searles was requesting an application.[3]

            When James Goode applied he was told by Terry Smith that King’s Command Foods was not hiring but to keep checking back.  Terry Smith threw the application on the desk without looking at it and looked annoyed.  James Goode checked back and was told “not hiring”.  However, he found out from white King’s Command employees that several white people were hired for the same position he was applying for.  One of the white employees told James Goode that King’s Command was not hiring blacks.  Terry Smith’s tone of voice was “snotty”.  He continued calling back for six months, and he was not hired.[4]

            When Michael Pittman worked with Larry Pittman at King’s Command, Terry Smith asked why he did not walk faster.  He responded that he had polio.  Mr. Smith said if Michael Pittman “can’t walk faster than this, you ain’t going to make it around here, boy.”  Previously told by Kirk McCoy that he would be hired, he was let go couple of days later.  After working for two months as a temporary through Interim, King’s Command brought him back after less than a month.  They let him work as a temporary with the promise that if he worked more than 90 days they would hire him as a permanent employee pursuant to a collective bargaining agreement with a labor union.  But they let him go the second time after 84-85 days.[5]

            David Abruquah worked through Interim as a temporary at King’s Command Foods as a packer for $6.50 per hour.  He wanted to transfer to the sanitation crew because he knew the Ghanaians there.  The sanitation jobs paid about $11 per hour.  King’s Command management would not place him into the sanitation crew, except occasionally to fill a manpower shortage.  When he worked sanitation, he was paid $6.50 per hour.  His chances of getting into the sanitation crew for $11 per hour were repeatedly poisoned by David Cassat’s characterization of his work as “slow”.  However, in the packing department, everyone works at the same speed; each worker has to wait for the previous worker to supply the product.

            He perceived King’s Command to have a racially discriminatory atmosphere.  When he applied for the sanitation crew, Bill Klosterman repeatedly told him to “wait”.  He was finally hired in as a permanent employee on May 20, 1998 on the fry line as a packer and paid $8.94 per hour.  His lead harassed him for “being slow” and he was terminated.  He tried to explain to Terry Smith the problem, that if the people ahead of him are slow, it will pile up on him where he is assigned, but to no avail.  Tim Markewicz fired him for being slow and he was smiling.

            He was rehired by Terry Smith in a laundry job a few days later for $10.00 per hour.  His predecessor in that position was paid $11.00 per hour.  He was demoted because a United States Department of Agriculture (USDA) inspector allegedly found dirt under a sink in the bathrooms.  He explained that keeping the bathrooms clean is complicated by their constant use.  When he was late due to a flat tire, and he called it in, it was counted as “half an occurrence” toward discipline for tardiness and absenteeism.  The policy requires two week notice for an excused absence.  He received a written warning when the washing machines broke down and a drain was plugged.  He explained that the machines were old and prone to break down.  He could not pull the drain because that was the mechanics’ job.  He was required to sign the write-up, or he was fired.  He explained that sometimes when he clocked in late, it was not because he was late in arriving at work, it was because laundry had to be sent into the machines right away.  Sometimes he clocked in after doing that.  The work clothes needed to be washed so the swing shift crew can start on time.  He left King’s Command after being busted from $11.30 per hour down to $10.30 per hour.  The need to find subsequent employment necessitated a positive resignation letter.  He observed blacks get the menial jobs and promoted less rapidly than whites.  He heard terms like “nigger” in the passageways.  He heard this said by a tall, dark haired, young white male.  He witnessed it said to a black man.[6]

            The Declaration of Terry Smith in Support of Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs David Abruquah, Benjamin Barnes, Arthur Forest, Curtis Hollis and Nathan Kilcrease (Smith Declaration II) includes 25 attached Exhibits, none of which are written documents from the USDA.  Exhibit 8 to the Smith Declaration II is a handwritten note by Mr. Smith stating that “We were given a ‘citation’ last week by the inspector due to the poor condition of the restrooms . . .”  No such citation is included among these Exhibits.

            Exhibit 2 to the Smith Declaration is the collective bargaining agreement for 1998 through 2002 between King’s Command Foods, Inc. and King’s Command Meats Employee Association, Local 181 of the United Food and Commercial Workers.  The last three pages form SCHEDULE C, ATTENDANCE AND TARDINESS PROGRAM.  The second page defines “occurrences”.  Tardies and early leaves less than four hours are “1/2 occurrences” while absences and early leaves more than four hours are “full occurrences”.  The exemptions listed do not include absences or tardies due to unforeseeable circumstances such as an illness.  Such absences and tardies count as 1/2 and full occurrences.  Approved excused absences must be requested in writing at least two weeks in advance.  One paragraph reads:

No illness will count for more than one (1) occurrence, provided the days missed are consecutive.  Also, if an employee attempts to return to work from an illness and subsequently misses time within a five (5) day period as a direct result of the initial illness (illness must be verified by a doctor), then the subsequent absence will be considered part of the first occurrence.

 

On the last page of Exhibit 2, all occurrences, including for illness, count toward the employee discipline process outlined therein.  The last step, Step 5, is termination of employment.[7]

            When Benjamin Barnes worked as a warehouse foreman, white subordinate employees would not accurately count the merchandise as they loaded the truck.  The count daily came up short forcing him to complete the order himself.  He so informed his supervisor, Tom Butler.  It was Mr. Butler’s responsibility to discipline employees.  The problem never went away.  He was transferred to meat cutter and denied a raise he would have received had he remained a warehouse foreman.  He perceived that he was criticized for the short counts because of his race.  He discussed the problem of the subordinates disrespecting him with Darrel Cody.  He was afraid if he said something to management about it, management would use that against him.  The problem with the short counts, orders going to the wrong place, and the excessive overtime required to get the trucks loaded right led to his being moved from warehouse foreman to red meats.  His subordinates felt safe in disrespecting him and sabotaging his work.

            After Benjamin Barnes was transferred to meat cutter, another meat cutter, Elliot, a white man, criticized his meat cutting, and grabbed his knife away from him.  Mr. Barnes went to a supervisor, who said: “If you don’t like it, you can quit.”  Benjamin Barnes witnessed a white man who worked with Keith Kerns on the meat grinder always telling racist jokes.  Mr. Barnes told him that he did not appreciate racist jokes: “I don’t tell Polack jokes because Polack jokes lead to black jokes.”  Every time he saw this man, he was telling such jokes, he walked away without listening to the rest of a joke that contained words “black man”.[8]

            Arthur Forest admits to punching a fellow employee’s time card for her.  He was concerned about her getting “occurrences” when she took time off for illness or injury.  On December 29, 1999 he felt sick and left after two hours.  He was assessed an “occurrence”.[9]

            Mr. Forest applied to take over Dave Cassatt’s position when he was demoted, but was denied the position.  He observed that the company pitted black employees against each other and did not apply the “occurrence” policy equally between the races.  He experienced an atmosphere of racial hostility at the plant.  He still works there and believes that this lawsuit is the primary incentive for improvement in the racial climate that he observed.[10]

            Nathan Kilcrease perceived that management, Dave Cassett, who is white, was “keeping everybody down on the crew.  And to me, that’s discrimination because he was white and everybody else on the crew was ethnic.”  He knew Larry Pittman filed the lawsuit because “Everybody in the plant” “was talking about it.”  He decided to join the lawsuit.[11]

            Mr. Kilcrease testifies to disparate treatment between himself and Dave Cassett.  After Mr. Kilcrease was promoted to supervisor of the sanitation crew, he was assessed three occurrences for absences and tardies.  However, Dave Cassett, the previous supervisor of the sanitation crew, often left after the shift began and returned 15-20 minutes before Kirk McCoy, the morning supervisor, arrived.  When Mr. Kilcrease spoke to Kirk McCoy and Dave Horn, their response was “Well, he’s management.”  Mr. Cassett was demoted, but not terminated.  Mr. Kilcrease faced possible termination under the “occurrence” policy after being promoted to management.  He was given a “Final Warning”, meaning termination with the next “occurrence”.  However, he was not terminated for the “occurrences”.

            Nathan Kilcrease and the sanitation crew were often not given sufficient time to perform their required cleaning.  Sometimes the production swing shift would not finish until 2:00 am.  However, they were expected to be finished by 5:00 am and have the equipment ready for the production morning shift.  When the production ran late and the sanitation crew was thus unable to get the equipment cleaned on time Kirk McCoy and Tim Markewicz yelled at them.  They blamed the sanitation crew for the meat tubs and parts being taken by the grinders.

            Nathan Kilcrease witnessed Kirk McCoy use racially inappropriate terminology, calling Larry Pittman offensive names on numerous occasions.  At about 5:00 am he was leaving the graveyard shift and Mr. McCoy and Mr. Pitttman were arriving for the morning shift.  He witnessed Mr. McCoy physically assault Mr. Pittman and say “What’s up, black man?”  The assault was with a closed hand.  He observed Pete Dewitt was present during the incident.[12]

            When Curtis Hollis worked as a grinder, people called him “boy” including Tim Markewicz and Jim Bear, brother of the defendant corporation’s registered agent.  Jim Bear told racial jokes every day.  Jim Bear yelled “Smile, Curtis, because I can’t see you.” when the lights went out.  Mr. Hollis complained about it with the union, but no grievance meeting was set up.  He perceived management as tolerant of the abuse.  Terry Smith had Tim Markewicz write him up for “moving too slow.”  When he tried to talk to Terry Smith about it, Terry refused to discuss it.  When management watched them work, they made him feel like a “small nobody”.

            When Curtis Hollis was arrested for missing a probation appointment, he received an “occurrence”.  On several occasions he told management in advance that he had court dates.  He was granted an excused absence the second time because he put the request in writing 17 days before the scheduled court date.  The first time he informed Tim Markewicz of the court date, Mr. Markewicz said he forgot, and Mr. Hollis was assessed an “occurrence”.  When he was delayed by an accident on the freeway, he was assessed half an “occurrence”.  Dave Horn and Terry Smith did not listen to his explanation.  When he presented a written record of the incident from the Washington State Patrol, it did not lift the “occurrence”.  He perceived Tim Markowicz as having a racially based personal dislike for him.  After he obtained release from work to report to a treatment center at the Veterans Administration hospital, the appointment was canceled due to a mix up in the schedule.  Terry Smith told him to come to work the next day, and when he did, he was given a warning that one half more “occurrence” and he would be fired. Soon after that, he was fired.  What happened was that he got arrested on another federal probation problem.  An attempt to grieve the firing with the union was ineffective.  He perceived that when white employees came in late or were absent, they were not assessed “occurrences” as often, but when black employees came in late, they were assessed “occurrences” every time.  He observed Jody come in late, and was still next in line for supervisor.  He observed that Shannon, Jody’s brother in law, received rapid promotions, while the black employees received promotions slowly or not at all.  He observed Dave Greenwood, white, come in drunk, cuss out the management, using profanity, they sent him home in a taxi.  He came to work the next day like nothing happened.  All he received was an “occurrence”.[13]

            Michael Davis was first assigned for one day to a position as a grinder, because management personnel, might have been Tim Markewicz, told him it was because he was a young black male, big and strong.  When he was moved to the sanitation crew, management, perhaps either Tim Markewicz or Robert Thomas, told him that he would be good there because he was a big, strong, black male.  Mr. Thomas made racially inappropriate comments to Mr. Davis, calling him “Dogg” and “boy”.  Mr. Thomas commented that Terrance Davis looked like Snoop Doggie Dogg and that a minority woman wearing a hairnet looked like Aunt Jemima.  Mr. Thomas thought white women wearing hairnets were not funny but minority women wearing hairnets were.  Mr. Thomas never called white people “Dogg”.  He called Nathan Kilcrease “Chief”.  Mr. Davis told Mr. Thomas that he was not his “boy” and that his name is Michael after almost every incident.  Jody Lambert told African jokes.

            After he was transferred to the sanitation crew, Mr. Davis was spraying throw-away meat off of the machinery.  He heard Mr. Markewicz screaming at him.  Mr. Markewicz said “What the F you think your stupid ass is doing?”  Mr. Davis tried to calm him.  Mr. Markewicz complained about being sprayed and objected to the spraying of the meat.  Mr. Markewicz called Mr. Davis a “mother fucker” and a “stupid ass”.  Mr. Davis asked Mr. Markewicz to show him respect as a man, not to threaten, just stop the hysterics.  Mr. Davis received a write-up from Terry Smith, who did not listen.  There was a meeting between Mr. Davis, Mr. Markewicz, Mr. Smith, and Nathan Kilcrease.  Other employees who witnessed the incident attended the meeting exonerating Mr. Davis.  However, a short time after that, Mr. Davis was fired for having eight “occurrences”.  On April 27, 2000, Mr. Davis had to take his girlfriend to the hospital.  He called in on April 28 and Nathan Kilcrease informed him that he was fired.

            Mr. Davis perceived that promotions of blacks accelerated after this lawsuit was filed.  He received an “occurrence” for being late when his tire blew out.  There were written Employee Warnings with signatures that Mr. Davis refused to confirm or deny as his because of the way they looked.[14]

            Joseph Donker was told to go home by his supervisor, Dave Cassatt, and so he clocked out and headed to the locker room.  On his way Nathan Kilcrease told him that Mr. Cassatt wanted him in the plant.  Mr. Donker continued to the locker room and changed his clothes.  Terry Smith and Mr. Cassatt arrived to tell him to return to work or be fired.  After Mr. Donker returned to work, Mr. Cassatt gave him a simple task requiring a few seconds.  While asking him to hurry a cleaning task, Mr. Cassatt called Mr. Donker a “stupid motherfucker”.

            Tim Markowicz ordered the sanitation crew out of the plant, who responded by threatening to go home en masse.  Mr. Cassatt had to talk Mr. Markowicz into letting the sanitation crew back in the plant.  When Mr. Donker filled out applications for other jobs in the plant, Mr. Cassatt received the applications but did not turn them in, preventing him from obtaining other positions.  Mr. Cassatt was abrupt and hostile with Mr. Donker when writing him up for loafing and for retrieving his keys from his car after clocking in, he did not listen to explanations.  Mr. Donker received a write-up for clocking in before dressing up in the locker room he was required to clock in after dressing up for the work.[15]

            Yolanda Eskridge attempted to switch from the swing shift to day shift after she had worked for three months and again after six months. A Hispanic woman who had worked for two weeks got a day shift position instead.  Terry Smith told her that she could work day shift if someone wanted to switch, an impossible requirement.  She grieved it with the union, which was ineffective.  Tim Markowicz treated the whites differently than the blacks, having the blacks do the dirty work and allowing the whites to take their breaks before the blacks.  At the end of her shift, she wasn’t feeling well and had worked 9 hours, her line shut down and Mr. Markowicz told her she could leave.  After she changed out of her work clothes, he told her there was more work to do.  She redressed for work and asked what needed to be done.  He could not find any more work.  She went home.  She was fired the next day.  She denied yelling and using profanity.  Explanations weren’t listened to.  The rumor mill was that Mr. Markowicz was looking to fire someone and intended to deliberately provoke her.  The union grievance was ineffective.  A white employee, Dave Greenwood was not fired after coming to work drunk and cursing a line lead, Mr. Markowicz, and Ron Baer.  Another white employee, Dave Cassatt, was not fired after a no call no show.  Other instances of disparate treatment was witnessed by Ms. Eskridge.[16]  Gregory Cody wrote a letter concerning the last day Ms. Eskridge worked.  Mr. Markowicz told Mr. Cody that he intended to deliberately anger another worker.  Mr. Markowicz was looking to open a position on the fry line for Keith Kern.[17]

            Sidney Lanier was once called “blacky” by his supervisor, Robert Thomas.  Mr. Thomas slapped Mr. Lanier on the rear end, made sexual gestures, and pulled him while he was cutting meat.  Complaints to Kirk McCoy were ineffective.  Mr. Lanier was being trained by a reluctant Allen Watson to be his replacement.  Mr. Thomas warned Mr. Lanier to be careful because Mr. Watson had a swastika on his ear.  Mr. Lanier went back to meat cutting.  The occurrence policy was strictly enforced against Mr. Lanier.  He received an “occurrence” when he was absent for feeling sick.  He received another “occurrence” when he had to leave early for a back injury and had to stay home the next day.  He was fired after being absent to see a physician for a stomachache and a hip problem.  Kirk McCoy once grabbed Mr. Lanier around the neck to intimidate him and told him that he bothered him.[18]

            After Mr. Lanier worked 30 days in the freezer, he was placed on the floor and replaced by a white employee newly hired from Interim.  He observed disparate treatment between the races in the posting of job openings and the practice of waiting for whites to apply before filling them.  He was used as a pawn in some kind of contest between management and Allen Watson.  Don Furtick called Mr. Lanier “a dumb, stupid, black ass mother fucker.”  His complaints to Kirk McCoy and Terry Smith were ineffective.  Mr. McCoy called him “stupid”.  The reason he did not complain to management was that management was the problem, his complaints to them were ineffective.  The dirtier and crummier jobs went to the blacks.  He was the target of racial abuse, both verbal and physical.  Mr. McCoy physically assaulted him.[19]

            In addition to the thirteen plaintiffs whom the defendant moves to dismiss, other plaintiffs had suffered abuse and adverse employment actions.

            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.[20]

            Gregory Cody was placed in a position for two weeks that entitled him to a higher pay rate but he was denied the higher pay.[21]

            When Shabae Diquan repeatedly applied for positions Terry Smith and Kirk McCoy told him that when they wanted to hire another black, they will hire another black.  The union grievance procedure was ineffective.  He witnessed white staff use terms against the non-white employees such as “ass-holes”, “stupid”, “dumb Nigger”, and “dummy”.  The phrase “those lazy black mother fuckers never do anything right” was used almost daily.  Mr. Diquan was referred to as “Nigger” and “Black Sambo Darkie” by King’s Command white supervisors.  Mr. Smith said black people reminded him of the little black statutes that hold lantern lights on his lawn.  Mr. McCoy said he agreed with that.  Mr. Diquan asked Mr. Smith what a “Sambo Darkie” was.  The answer: “porch monkey”.  Mr. Diquan requested that he not be called that and Mr. Smith said “What? Do you think the Niggers are running King’s Command?  Well, you’re not.  Now get back to work.”  His complaints about this treatment were met with either hostility or indifference and he was told that it was the “Niggers” who made the problems.[22]

            When Larry Pittman worked at King’s Command, Dave Horn and Terry Smith told him that he was not getting any raises, transfers, or promotions.  Whenever he applied for a posted opening he was refused.  Terry Smith told him he threw the applications away, and if he did not like it, he can quit.  Whenever he performed work which the collective bargaining agreement mandated a higher pay rate, he was refused that pay.  When he filed a grievance with the union, he was fired for accumulated “occurrences”.  He was approved a day off to accompany his wife to a medical appointment.  The physician confirmed his presence.  Management claimed that the approval was for Tuesday, not Monday.  He was fired.  Prior to that incident, he came to work sick.  He was allowed off the rest of the day but assessed a full “occurrence”.  Three days before firing him, Terry Smith told him “Boy, you do not have any rights.”

            Robert Thomas repeatedly called Mr. Pittman racially offensive terms.  Kirk McCoy told him a racial joke.  After having him do a particularly degrading task, Mr. McCoy taunted Mr. Pittman into quitting.  He returned to work after King’s Command called to apologize, told him that Mr. McCoy will no longer be his boss, and falsely promised a raise and promotion.  King’s Command refused to allow Mr. Pittman sit in on training.  When he asked Mr. McCoy about a valve on a machine, he refused to answer, stating as his reason if “I train you for this, I will have to give you more money, and we are not going to do it.”  Mr. Thomas told Mr. Pittman that he was surprised that he lasted so long, because “black guys don’t do well at this company.”  Mr. Pittman observed that when black men were assigned to packing, it was to punish them or to run them out of the company.  White men assigned to the packing line were promoted to better paying, positions.[23]

            Larry Pittman was repeatedly physically assaulted by Kirk McCoy.  Terry Smith, Mark Wallace, Tom Butler, Doug Nance, and numerous other employees witnessed the assaults.  Mr. Smith and Mr. Wallace surrounded Mr. McCoy and Mr. Pittman, and told Mr. Pittman that if he hit back, he was fired.  They did not stop McCoy’s physical assaults. After McCoy was no longer his boss, he still physically assaulted him.  When he asked Pete Dewitt, his new boss, about it, he refused or was unable to do anything about it.  Dave Horn, who ran the King’s Command facility in Kent, refused to do anything about it.[24]

            In addition there is direct evidence of disparate treatment between the races.  The defendant answered interrogatory question asserting that there were no merit raises for the hourly workers at the plant.  This answer is inconsistent with document submitted by the defendant in response to plaintiffs’ requests for production.  Merit raises were given to numerous hourly workers throughout the 1990’s and the 21st Century so far.  38 white workers received merit raises according to these documents.  Two Asian and two Hispanic workers received merit raises.  Two black workers received merit raises, but only account for three merit raises between them. Same is true for the two Hispanic workers.  Many of the white workers and the two Asian workers received multiple merit raises.[25]  Given the number of black employees at King’s Command, as evidenced by the 20 black plaintiffs currently in this case and by the three plaintiffs formerly in this case, it is definitely statistical evidence of disparate treatment between the races as to discretionary merit raises.

THE RELEVANT SUBSTANTIVE LAW

            Washington Law Against Discrimination

            Racial discrimination in employment is prohibited by RCW 49.60.180:

            (1) To refuse to hire any person because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

            (2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

            (3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

 

            Hill v. BCTI Income Fund-I, (2001) 144 Wash. 2d. 172, 179 found that: . . . courts must carefully consider all allegations of unlawful discrimination, since the WLAD “embodies a public policy of ‘the highest priority’” quoting Xieng v. Peoples National Bank, (1993) 120 Wash. 2d. 512, 521, 844 P. 2d. 389 which quoted Allison v. Housing Authority, (1991) 118 Wash. 2d. 79, 86, 821 P. 2d. 34.

            Where there is direct evidence of discrimination, the burden shifting test in McDonnell Douglas v. Green, (1973) 411 U.S. 792, 802-805, 36 L. Ed. 2d. 668, 93 S. Ct. 1817 does not apply.  Trans World Airlines, Inc. v. Thurston, (1985) 469 U.S. 111, 121, 83 L. Ed. 2d. 523, 105 S. Ct. 613, citing International Brotherhood of Teamsters v. United States, (1977) 431 U.S. 324, 358 n. 4, 52 L. Ed. 2d. 396, 97 S. Ct. 1843.

            “Federal authority is persuasive in interpreting RCW 49.60.” Xieng at 120 Wash. 2d. 531.  Xieng applied McDonnell Douglas to claims under chapter 49.60 RCW, but also upheld the finding that Mr. Xieng’s accent was the reason he was passed over for promotion.  Id., at 521.  This was direct evidence of national origin discrimination.  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 McDonnell Douglas is not the exclusive method of proving discrimination, citing Teamsters at 431 U.S. 358.  Direct evidence of unlawful discrimination obviates the need for the burden shifting analysis.

            Where the direct evidence is not shown, then the burden shifting analysis of McDonnell Douglas is available for a plaintiff in a discrimination case.  This analysis has been adjusted and fine tuned by Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 252-256, 67 L. Ed. 2d. 207, 101 S. Ct. 1089; St. Mary’s Honor Center v. Hicks, (1993) 509 U.S. 502, 506-511, 125 L. Ed. 2d. 407, 113 S. Ct. 2742; and Reeves v. Sanderson Plumbing Prod., Inc., (2000) 147 L. Ed. 2d. 105, 119-120, 120 S. Ct. 2097.  The standard is now: once the prima facie case had been established for unlawful discrimination, and that employer’s explanation of legitimate reason is found to be false, it is permissible but not mandatory for a rational trier of fact to find discriminatory intent without additional independent evidence of discrimination.  Preponderance of evidence is the standard of proof, Price Waterhouse v. Hopkins, (1989) 490 U.S. 228, 253-255, 104 L. Ed. 2d. 268, 109 S. Ct. 1775.  These federal opinions are adopted by Hill at 144 Wash. 2d. 176, 180-187 for evaluating chapter 49.60 RCW claims.

            The plaintiffs allege disparate treatment with respect to black and Native American employees.  The defendant moves to dismiss 13 of the plaintiffs applying McDonnell Douglas analysis to the facts of each of these individual 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.  Any legitimate reasons are at most, under such circumstance, pretextual, even if true.  If false, then Reeves as adopted by Hill, allows a trier of fact to conclude unlawful discrimination.  As the trier of fact can conclude unlawful discrimination, then under Reeves, Hill, Clements, and Trimble, summary judgment is precluded.  The court on summary judgment motion does not make a credibility determination.  Seven Gables Corp. v. Metro-Goldwin-Meyer/United Artists Entertainment Co., (1986) 106 Wash. 2d. 1, 13, 721 P. 2d. 1 found:

MGM/UA was obliged to provide . . . sworn testimony presenting specific facts which, if believed, would justify a court in holding RCW 19.58.040 unconstitutional as applied or that Seven Gables was guilty of misconduct which prevented the court from entering a statutory injunction.

 

The phrase “if believed” implies that credibility determinations and the weighing of the evidence are not proper in a summary judgment motion.  Such can only be done after a trial.[26]  Article I Section 21 of the Washington Constitution preserves inviolate the right to a jury for determination of fact.

            Where there are mixed motives, Washington courts, in applying chapter 49.60 RCW, have settled upon the “substantial factor” test: Mackay v. Acorn Custom Cabinetry, (1995) 127 Wash. 2d. 302, 898 P. 2d. 284; Allison v. Housing Authority, (1991) 118 Wash. 2d. 79, 821 P. 2d. 34; and Wilmot v. Kaiser Aluminum & Chemical Corp., (1991) 118 Wash. 2d. 46, 821 P. 2d. 18.  This test is chosen as the middle ground between two other standards of proof in employment discrimination cases: 1) The “determining factor” or the “but for” test, in which case the prohibited ground, must the determining factor and that but for the condition, the adverse employment action would not have occurred.  And 2) The “to any degree” test in which case the adverse employment action was motivated to any degree by the prohibited ground.

            The “determining factor” or “but for” tests were rejected because they placed too high a burden of proof upon the employee alleging discrimination or retaliation for asserting legal rights or for complying with a legal requirement, to effect the public policy enacted by the Legislature.[27]  The employer can usually produce some evidence of another motive for the discharge, defeating the discrimination claim even though the other motive had slight impact on the adverse employment decision.  Wilmot at 118 Wash. 2d. 70; Allison at 118 Wash. 2d. 85-87, 93-94; Mackay at 127 Wash. 2d. 309-310.

            The “to any degree” test was rejected because employers need to be able to take appropriate action against employees when they have legitimate reasons, and that employees might abuse the protection of the standard by filing weak discrimination claims to shield themselves from discharge.  Allison at 118 Wash. 2d. 94-95.  Wilmot and Allison dealt with retaliatory discharge claims, Mackay applied the “substantial factor” test to employment discrimination claims.  The substantial factor test provides that a plaintiff alleging discrimination must prove that race or another prohibited ground was a substantial factor, more than a slight factor, but he or she need not prove that it was the only factor.

            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,[28] management’s flat refusal to consider Larry Pittman for promotion, transfer, or any action that would lead to a raise in pay beyond the cost of living adjustment, refusal to pay black employees at higher rates of pay required by the collective bargaining agreement for certain duties when these employees performed them, the physical assaults against Larry Pittman and the tolerance of these physical assaults by management, refusal to consider Sylvester Pittman, Relashia Searles, James Goode, and Shabae Diquan for job openings and for permanent employment, the discrimination against Michael Pittman for being partially disabled in addition for being black, the impossible no-win position in which David Abruquah was placed, 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, the sudden firing of Yolanda Eskridge for “abandoning” her job after working 9 hours and refusing to hang around for a supervisor who was playing a game, a similar game played with Joseph Donker, considerable incidents of disparate treatment between white and nonwhite employees as to these rules, the lack of cooperation experienced by Benjamin Barnes and Nathan Kilcrease and management failure to back up these foremen to the extent that it backed up white foremen and supervisors, 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, direct evidence of disproportionate treatment of the races in the awarding of discretionary merit raises if provided by documentation supplied by the defendant in response to discovery.  That the defendant inconsistently stated that there were no merit raises in its answers to Interrogatories, brings to mind the Reeves standard, that if the employer is found to be lying, a trier of fact may but is not required to find unlawful 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.  In the case of Michael Pittman, a rational trier of fact can find unlawful disability discrimination in employment.  In the case of many of the plaintiffs a rational trier of fact can find breach of contract in the consistent failure to pay the black employees higher rates of pay required by the collective bargaining agreement when they performed work entitling them to such higher rates of pay.

            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.

            For the reasons stated herein, the Defendant’s Motion to for Summary Judgment to Dismiss Plaintiffs Michael Pittman, Sylvester Pittman, Relashia Searles and James Goode, the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Abruquah, Barnes, Forest, Kilcrease and Hollis, and the Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Michael Davis, Joe Donker, Yolanda Eskridge, and Sidney Lanier should be denied.

RESPECTFULLY SUBMITTED, January 7, 2002.

 

                                                            ____________________________________

                                                            Paul H. King                             WSBA #7370

                                                            Attorney for Plaintiff