Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 345-43

Filed 02/16/2006

Page 1 of 7

EXHIBIT H

Case 1:03-cv-02485-MSK-PAC

Document 345-43

Filed 02/16/2006

Page 2 of of7 Page 2 7

~vv
,A:""

Not Reported in F.Supp.
Not Reported in F.Supp., 1995 WL 17170492 (W.D.Wash.)

Page 1

(Cite as: Not Reported in F.Supp.)

H Only the Westlaw citation is currently available. United States District Court,W.D. Washington. Steven MUNIZZA, Plaintiff,
v.

with "errors" and stated the major areas where

plaintiffs work performance needed improvement.
Id. at Exhibit 10.

STATE FARM MUTUAL AUTOMOBILE INSURANCE, CO., an Ilinois corporation, Defendant.
No. C94-5345RJB.

In January 1993, defendant approved plaintiffs parental leave for March 17 to June 4, 1993. Id. at
6. On June 4, 1993, plaintiff returned to work from his parental leave. Id. On that same day, plaintiff

received a memo placing him on probation. Id. at

Exhibit 14. The memo set forth defendant's
May 12, 1995.

concerns with the quality of plaintiffs work and
suggested ways in which plaintiff could improve his
job performance. Id. On September 23, 1993,

Paul Alexander Lindenmuth, Law Offces of Ben F.
Barcus, Tacoma, W A, for Plaintiff.

defendant decided to terminate plaintiffs
employment. Id. at Exhibit 16.

Timothy J. Whitters, Gordon Thomas Honeywell Malanca Peterson & Daheim, Seattle, W A, for
Defendant.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant asserts that plaintiff was terminated for poor job performance. Id. Plaintiff alleges that his employment was terminated in retaliation for taking parental leave. Aff. of Munizza, page 8; Amended
Complaint, ir 3.6.

BRYAN,J.

Discussion
Under Fed.R.Civ.P. 56(c), the entry of summary

*1 THIS MATTER comes before the court on
defendant's Motion for Summary Judgment. The court has considered the motion, documents fied in
support and in opposition, and the fie herein.
Statement of Facts

judgment is mandated when the evidence in the
record shows no genuine issue of material fact and the moving part is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); TW
Electrical Service, Inc. v. Pacifc Electrical

Plaintiff Steven Munizza was a claims

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)

representative for defendant State Farm Mutual Automobile Insurance Company from 1987 until his

. A material fact is one that is relevant to an element
of a claim or defense and whose existence might

employment was terminated on September 24,
1993. Aff. of Munizza, dated April 11, 1995, page

affect the outcome of the suit. T W Electrical
Service, 809 F.2d at 630. A genuine issue of
material fact exists if there is sufficient evidence

1, 8. In October 1992, plaintiff asked his supervisor
about the possibilty of taking a parental leave from

supporting the claimed factual dispute to require a

his employment because plaintiff and his wife were
expecting a baby in January 1993. Id. at 5. On

judge or jury to resolve the differing versions of the

truth. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T W Electrical Service, 809 F.2d at 630.

October 29, 1992, plaintiffs supervisor, Jeff
Latham, gave plaintiff a memo entitled "Work Product Concerns," which listed twenty-six fies

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Case 1:03-cv-02485-MSK-PAC

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Not Reported in F.Supp.
Not Reported in F.Supp., 1995 WL 17170492 (W.D.Wash.)

Page 2

(Cite as: Not Reported in F.Supp.)
Defendant argues that it is entitled to summary

denied.

judgment on plaintiffs claims for wrongful
termination and failure to pay overtime. Memo. in
Support of SJ. Motion, page 2. Defendant argues
i. Plaintifs Wrongful Termination Claims

there is "insuffcient evidence in support of

Munizza's claim of retaliation or wrongful
termination," and plaintiffs "Fair Labor Standards

Plaintiffs wrongful termination claims includes

claims for (1) violation of RCW 49.60, et seq., the
Law Against Discrimination in Employment

Act claim and his claim under RCW 49.46 are
deficient" because plaintiffs employment position

was exempt from the overtime provisions of these
statutes. Id.

U.S.C. §§ 2601, et seq., the Family and Medical

(Amended Complaint, ir 4.2); (2) violation of 29

Leave Act (Amended Complaint, ir 4.3); and (3)
violation of RCW 49.78, et seq., the Washington

*2 Plaintiffs Amended Complaint includes a claim
for breach of implied contract. Amended
Complaint, ir 4.1. In its brief in support of its

Family Leave Act (Amended Complaint, ir 4.4).

Plaintiff alleges that defendant violated RCW
49.60, et seq., because "a substantial or motivating
factor in the decision to terminate plaintiff was

motion for summary judgment, defendant did not
address plaintiffs claim for breach of implied

plaintiffs marital status and gender." Amended

contract. See, Memo in Support of SJ. Motion. Indeed, in that brief, defendant asserts: "Munizza

Complaint, ir 4.2(B). Plaintiff alleges that
defendant violated 29 U.S.C. §§ 2601, et seq.,

has not alleged any breach of a contractual
relationship between him and the Company." Id. at 16. In its reply brief, although defendant argues that it moves for summary judgment on all of plaintiffs claims, defendant did not provide legal analysis of why it is entitled to summary judgment on plaintiffs
breach of implied contract claim. The court has
insuffcient information to determine if defendant

because "Plaintiff was subject to discrimination in

his employment and was ultimately terminated for

taking family leave." Amended Complaint, ir
4.3(C). Plaintiff alleges that defendant violated

RCW 49.78, et seq., on the grounds that "the termination of Plaintiffs employment in retaliation
for his assertion of parental leave rights violated

is

entitled to summary judgment on plaintiffs claims for breach of implied contract. Therefore, the court
declines to rule on that issue.

(the) statute and the public policy of the State of
Washington." Amended Complaint, ir 4.4(C).

Plaintiff opposes defendant's Motion for Summary
Judgment. Plaintiff argues that there are genuine

1. RCW 49.60, et seq., the Law Against Discrimination in Employment
*3 It is an unfair practice for any employer to

motivations for termination of plaintiffs
employment. Plaintiff also argues that defendant is not entitled to summary judgment on plaintiffs overtime claims because plaintiff was not an exempt employee under federal and state wage laws, plaintiff was entitled to overtime compensation for
work performed beyond a standard fort hour work

issues of material fact for trial regarding defendant's

discharge or bar any person from employment or

discriminate against any person in compensation or in other terms or conditions of employment because
of

sex or marital status, RCW 49.60.180(2), (3).

Washington courts have adopted the 3-step burden

shifting test in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817,36 L.Ed.2d 668 (1973)

week, and plaintiffs termination for failure to work

uncompensated overtime violates public policy of
Washington.
Defendant requests oral argument. Oral argument

, in discrimination cases that arise out of 49.60.180. Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 364, 753 P.2d 517 (1988). Under McDonnell Douglas, a plaintiff must first make out
a prima facie discrimination case by showing that he or she (1) was within the protected group; (2)

does not appear to be necessary to determine

whether defendant is entitled to summary judgment.

Defendant's request for oral argument should be

was discharged; (3) was replaced by a person

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Not Reported in F.Supp.
Not Reported in F.Supp., 1995 WL 17170492 (W.D.Wash.)

Page 3

(Cite as: Not Reported in F.Supp.)
outside the protected group; and (4) was qualified

plaintiffs claim under RCW 49.60.180.

to do the job. See, McDonnell Douglas, 411 U.S. at
802.

2.29 Us.e. §§ 2601, et seq., the Family and

The defendant employer must then show a legitimate nondiscriminatory reason for the termination. Kastanis v. Educ. Employees Credit
Union, 122 Wash.2d 483, 490 (1993), modifed on
other grounds, 865 P.2d 507 (Wash, 1994). If the defendant shows a nondiscriminatory reason for termination the plaintiff must then show that the
employer's articulated reasons are a mere pretext for

Medical Leave Act and RCW 49. 78, et seq., the Washington Family Leave Act
*4 The Family and Medical Leave Act, 29 U.S.c. §§

2601, et seq., ("FMLA"), and the Washington

Family Leave Act, RCW 49.78, et seq ., ("WFLA"), permit certain employees to take a total of 12 weeks
of unpaid leave to care for the employee's newborn.

a discriminatory purpose. Id. at 491.

The FMLA makes it unlawful for any employer "to
discharge or in any other manner discriminate

The plaintiff can also establish a prima facie case of

discrimination by showing direct evidence of
discriminatory intent. Trans World Airlines, Inc. v.

against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. §
2615 (emphasis added). Likewise, in Washington,

Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83
L.Ed.2d 523 (1985). To establish a prima facie case of discrimination by direct evidence, a plaintiff
must provide direct evidence that the defendant acted with a discriminatory motive and that the

no employer may discharge or otherwise
discriminate against any person because "he or she has opposed any practices forbidden by this chapter. ..." RCW 49.78.130 (emphasis added).

discriminatory motivation was a "significant or
substantial factor in an employment decision...."
Kastanis, 122 Wash.2d at 491 (citations omitted). " Once these factors are established the defendant

Plaintiff admits that by their terms, neither the

FMLA nor the WFLA specifically prohibit
retaliation or discharge of an employee who takes a
family leave but otherwise has not "opposed any

must show that the same decision would have been reached absent the discriminatory factor. In the face
of such evidence, the case goes to the jury." Id.

practices" forbidden by the acts. See, PIa's Memo.
of Points and Authorities in Opposition to Defs

Mo. for SJ., page 25. Plaintiff does not argue that
defendant retaliated against him or terminated him

Plaintiff has attempted to show a prima facie case of discrimination under the McDonnell Douglas

for "opposing any practices" forbidden by the
FMLA or the WFLA. See, Id. Rather, plaintiff urges the court to "imply a remedy" and create a "public

factors, supra. Plaintiff established that he was within a protected group (plaintiff is a married
male) and he was discharged. See, Aff. of Munizza, page 3, 8. However, plaintiff did not establish that
he was replaced by a person outside the protected
group (either a female or a non-married person) or

policy based tort," which would allow plaintiff to assert a claim for violations of the FMLA and the

WFLA without showing that plaintiff was
terminated for "opposing any practices" forbidden by the acts. Id. at 25-26.

that he was qualified to do the job. See, Aff. of
Munizza; Munizza Deposition Vol. II, Exhibit 21,
attached to Decl. ofWhitters, fied March 22, 1995.

The court declines plaintiffs invitation to imply any such remedy or to create a public policy based tort.

Because plaintiff cannot show that plaintiff was

Plaintiff failed to establish a prima facie case of discrimination in violation of 49.60.180 under the
McDonnell Douglas factors. Neither has plaintiff
established a prima facie case of discrimination by

discriminated against or discharged for "opposing

any practices" forbidden by the FMLA or the WFLA, plaintiffs claims under the FMLA
under the WFLA (Amended Complaint, ir 4.4)
should be dismissed. Defendant is entitled to
summary judgment on these claims.

showing direct evidence of discriminatory intent.
The court should grant defendant's motion for

(Amended Complaint, ir 4.3) and plaintiffs claims

summary judgment on this issue and dismiss

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Not Reported in F.Supp.
Not Reported in F.Supp., 1995 WL 17170492 (W.D.Wash.)

Page 4

(Cite as: Not Reported in F.Supp.)
II. Plaintifs Claims of Alleged Violations of RCW 49.46 and 29 Us.e. §§ 201, et seq.
Both the Fair Labor Standards Act ("FLSA"), 29

his hours worked in the workweek to activities

special assignments and tasks; and (d) Who does not devote more than 20 percent ... of
performance of the work described in paragraphs
(a) through (c) of

which are not directly and closely related to the
this section; and

U.S.C. §§ 201, et seq., and RCW 49.46 impose
additional compensation requirements upon

employers with regard to certain classes of
employees. However, both exempt from their
requirements certain individuals who are "employed
in a bona fide executive, administrative or
professional capacity." 29 U.S.C. § 213(a)(1);

(e)(I) Who is compensated for his services on a
salary or fee basis at a rate of not less than $155 per
week....

29 C.F.R. § 541.2; Bratt, 912 F.2d at 1068-69.

RCW 49.46.010(5)(c). The question of how an employee spends his working time is a question of
fact, and the question of whether an employee's

The defendant employer must prove that plaintiff

employee meets all requirements in 29 C.F.R. §
541.2 before the plaintiff can be held exempt from

particular activities exclude them from the overtime benefits of the FLSA is a question of law. Bratt v.

coverage under the FLSA. See, Bratt, 912 F.2d at
1069. The relevant inquiry here involves the factors listed in paragraphs (a), (b), and (c), supra. Neither
part disputes that the factors listed in paragraphs

County of Los Angeles, 912 F.2d 1066, 1068 (9th Cir.1990), cert. den., 498 U.S. 1086, 111 S.Ct. 962,
112 L.Ed.2d 1049 (1991).

Washington regulations defining employees acting
in an administrative capacity adopt wholesale the
identical federal regulations defining administrative
employees exempt from the FLSA overtime pro

(d) and (e) were satisfied by plaintiffs employment
with defendant.

vi

a. The Performance of

Offce or Non-Manual Work

sions. See, WAC 296-128-520; 29 C.F.R. § 541.2. Washington courts typically look to federal cases that interpret the FLSA provisions on overtime to
interpret similar state law provisions. Weeks v.

Directly Related to Management Policies or General Business Operations of His employer or His Employer's Customers

Chief of State Patrol, 96 Wash.2d 893, 897, 639
P.2d 732 (1982). Therefore, whether an exemption

to RCW 49.46 applies is also a question of law. See, Bratt, 912 F.2d at 1068.

An employee's primary work is "directly related to management policies or general business operations of his employer or his employer's customers" when he performs work of substantial importance to the management or operation of the business. Bratt, 912
F.2d at 1069. The phrase "substantial importance"

*5 An employee employed in a bona fide
administrative capacity means any employee: (a) whose primary duty consists of...
(1) The performance of offce or non-manual work

Is not limited to persons who participate in the
formulation of management policies or in the

operation of the business as a whole. 1d. Employees

directly related to management policies or general
business operations of his employer or his

whose work is "directly related" to management
policies or to general business operations include

employer's customers, ... and

those whose work affects policy or whose

(b) Who customarily and regularly exercises
discretion and independent judgment; and

responsibilty it is to execute or carry it out. Id.
The administrative operations of the business

proprietor, or an employee employed in a bona fide executive or administrative capacity ..., or (2) Who performs under only general supervision
work along specialized or technical lines requiring special training, experience, or knowledge, or

( c) (1) Who regularly and directly assists a

include the work performed by so-called
white-collar employees engaged in "servicing" a
business, as for example, advising the management,
planning, negotiating, representing the company,

purchasing, promoting sales, and business research
and control..

(3) Who executes under only general supervision
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Not Reported in F.Supp.
Not Reported in F.Supp., 1995 WL 17170492 (W.D.Wash.)

Page 5

(Cite as: Not Reported in F.Supp.)
Id. Insurance claims agents and adjusters are used in
29 C.F.R. § 541.205(c)(5) as examples of

answering demand letters and negotiating
settlements with the public. I have authority to pay out thousands of dollars in claim settlements as well
as make sensitive determinations whenever State

employees who are "servicing" a business, and to
the extent that these employees primarily serve as
general financial advisors or as consultants on the

proper way to conduct a business, these employees

Farm is exposed to liability. I do contact my supervisor for guidance; however-I make the
majority of all my decisions on a regular basis.

properly qualify for exemption under the FLSA. Id.
at 1070.

Decl. of Whitters, Exhibit E, fied March 22, 1995.
*6 Plaintiffs work as a Claims Specialist was "

directly related" to management policies or to
general business operations because it was

The Claims Specialist job description, which

plaintiff admitted accurately reflected his job,
indicates that plaintiffs job involved "the

plaintiffs responsibilty to execute or carry out the employer's policy. Munizza Deposition Vol. II,

pages 12-16, Exhibit 21, attached to Decl. of
Whitters, fied March 22, 1995; see, Bratt, 912 F.2d
at 1069.

comparison and the evaluation of possible courses of conduct and acting or making a decision after the

various possibilities (had) been considered." 29
C.F.R. § 541.207(a); Munizza Deposition Vol. II,
pages 12-16, Exhibit 21, attached to Decl of

Whitters, fied March 22, 1995. Plaintiffs
b. Exercise of Discretion and Independent Judgment

employment with defendant involved the exercise of discretion and independent judgment.
c. Regular and Direct Assistance to a Proprietor,
or an Employee Employed in a Bona Fide Executive or Administrative Capacity; or Work Performance Along Specialized or Technical Lines

For "high-salaried" administrative employees, those making in excess of $250 per week, the "short-test"
applies and the employees's job need not

customarily and regularly involve the exercise of
discretion and independent judgment, but "must

only include work requiring the exercise of
discretion and independent judgment to qualify him
as an exempt employee." O'Dell v. Alyeska Pipeline

Requiring Special Training. Experience, or
Knowledge Under Only General Supervision; or

Service Co., 856 F.2d 1452, 1454 (9th Cir.1988)

Special Assignments and Tasks Executed Under
Only General Supervision

(internal quotations and citations omitted); 29 C.F.R. §§ 541.2(e)(2), 541.214. "(T)he exercise of
discretion and independent judgment involves the

The Claims Specialist job description indicates that
plaintiffs job required special training, experience

comparison and the evaluation of possible courses of conduct and acting or making a decision after the
various possibilties have been considered." 29
C.F.R. § 541.207(a).

and knowledge. Munizza Deposition Vol. II, pages
12-16, Exhibit 21, attached to Decl. of Whitters,

fied March 22, 1995. Additionally, plaintiffs job
was performed under only "general supervision."

Plaintiff was a "highly-salaried" employee of

defendant insurance company because he made in excess of $250 per week. Decl. of Whitters, Exhibit E, fied March 22, 1995. As support for defendant's
argument that plaintiffs job included work requiring
the exercise of discretion and independent

Decl. of Whitters, Exhibit E, fied March 22, 1995 (plaintiffs statement to the Department of Labor); Munizza Deposition Vol. II, pages 12-16, Exhibit 21, attached to Decl. of Whitters, fied March 22,
1995.
*7 As additional support for defendant's argument that plaintiffs position as Claims Specialist was

judgment, defendant submits the plaintiffs declaration to the Department of Labor where
plaintiff stated:

exempt from the overtime provisions of the FLSA

I use a high level of discretion in my job in completing progress/final reports, reading &

and RCW 49.46, defendant submitted a
determination by the Department of Labor, which

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Not Reported in F.Supp.
Not

Page 6

Reported inF.Supp., 1995 WL 17170492 (W.D.Wash.)

(Cite as: Not Reported in F.Supp.)
found that plaintiffs position as Claims Specialist

The Clerk of the Court is instructed to send
un

was exempt from the overtime provisions of the

certified copies of this Order to all counsel of

FLSA. Decl. of Dale E. Bock, Exhibit 1. Both federal and Washington State courts typically view
the factual determinations of the administrative

record and to any part appearing pro se at said

part's last known address.
W.D.Wash.,1995. Munizza v. State Farm Mut. Auto. Ins. Co.
Not Reported in F.Supp., 1995 WL 17170492

agency charged with enforcement of a statue with
deference. See. e.g., Mourning v. Family

Publications Serv., Inc., 411 U.S. 356, 372, 93
S.Ct. 1652, 36 L.Ed.2d 318 (1973); accord, English

Bay Enterprises, Ltd. v. Island County, 89 Wash.2d
16,21,568 P.2d 783 (1977).

(W.D.Wash.)

END OF DOCUMENT

There are no disputed questions of fact regarding
how plaintiff spent his working time. Defendant's

arguments are persuasive. Plaintiff was an
administrative employee of defendant employer and
was therefore exempt from the overtime

requirements of the FLSA and RCW 49.46. See,
WAC 296-128-520; 29 C.F.R. § 541.2.

Even if plaintiff was not exempt from the overtime provisions of those statutes, plaintiff failed to submit any evidence that he was terminated for
refusing to work overtime without compensation.

Plaintiff admits that he never asked defendant for overtime compensation. Munizza Dep., Vol. II, at
23-24, 26. The defendant is entitled to summary

judgment on this issue and plaintiffs claims
regarding overtime compensation, Amended

Complaint, irir 3.7,3.8,4.6, should be dismissed.
For the foregoing reasons, it is now

seq., the Law Against Discrimination in Employment, (Amended Complaint, ir 4.2);
Plaintiffs claims for violation of 29 U.S.c. §§ 2601

ORDERED that the defendant's Motion for Summary Judgment is DENIED IN PART AND GRANTED IN PART to the extent stated herein: Plaintiffs claims for violation of RCW 49.60, et

, et seq., the Family and Medical Leave Act

(Amended Complaint, ir 4.3); Plaintiffs claims for
violation of RCW 49.78, et seq., the Washington

Family Leave Act (Amended Complaint, ir 4.4); and Plaintiffs claims for violations of RCW 49.46
and 29 U.S.C. §§ 201, et seq., claims for overtime

compensation, (Amended Complaint irir 3.7, 3.8,
4.6), are hereby DISMISSED.
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