Kinnune v. Washington

1

ROBERT THEODORE KINNUNE, Plaintiff, v. STATE OF WASHINGTON; and WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Defendants.

No. 2:23-CV-00026-MKD

United States District Court, E.D. Washington

January 26, 2024

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF Nos 38, 43

MARY K. DIMKE UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff Robert Theodore Kinnune's Motion for Partial Summary Judgment, ECF No. 38, and Defendants Washington State and Washington State Department of Social and Health Services' (collectively “DSHS”) Motion for Summary Judgment, ECF No. 43. On January 19, 2024 the Court held a hearing on the motions. ECF No. 65. Eric Gilman and James Beck appeared on behalf of Mr. Kinnune. Taylor Hennessey appeared on behalf of DSHS.

Mr Kinnune alleges that DSHS discriminated against him, retaliated against him, and failed to rehire him, in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq., and the Washington Law Against Discrimination (“WLAD”), RCW 49.60, et seq. ECF No. 2-2. Mr. Kinnune moves for summary judgment on his USERRA failure-to-reemploy claim, and on certain elements of his discrimination and retaliation claims. ECF No. 38. DSHS moves for summary judgment on Mr. Kinnune's failure-to-reemploy claim, and on certain elements of Mr. Kinnune's discrimination and retaliation claims. ECF No. 43.

For the reasons stated at the hearing and set forth below, Mr. Kinnune's Motion for Partial Summary Judgment is GRANTED in part and DENIED in part. DSHS's Motion for Summary Judgment is DENIED.

BACKGROUND

The following factual background is undisputed. Mr. Kinnune is a member of the United States Army Reserve. ECF No. 57 at 1 ¶ 1. On May 2, 2016, DSHS hired Mr. Kinnune as full-time Chaplain at Eastern State Hospital (“ESH”). ECF No. 57 at 1 ¶ 3.

On June 20, 2018, the Department of the Army ordered Mr. Kinnune to report for active duty, beginning July 23, 2018, and ending July 22, 2019. ECF No. 57 at 4 ¶¶ 18-21. Mr. Kinnune informed his supervisors at ESH on June 21, 2018. ECF No. 57 at 4 ¶ 19. Prior to being called to active duty, Mr. Kinnune had no disciplinary actions, complaints, or documented performance issues recorded against him. ECF No. 57 at 4 ¶ 23.

While Mr. Kinnune was on military leave, DSHS hired April Ross, an intern that worked under Mr. Kinnune, as interim chaplain. ECF No. 57 at 4 ¶ 25. During Mr. Kinnune's military leave in January 2019, Ms. Ross wrote a six-page complaint against Mr. Kinnune that include allegations of sexual misconduct with patients, bullying, misogyny, and discrimination against LGBTQ+ individuals. ECF No. 57 at 5-6 ¶¶ 32.

On April 8, 2019, the Army extended Mr. Kinnune's tour to June 30, 2020. ECF No. 57 at 7 ¶ 44. Mr. Kinnune informed DSHS on June 5, 2019. ECF No. 57 at 7 ¶ 45. On May 5, 2020, the Army extended Mr. Kinnune's tour to August 29, 2020. ECF No. 57 at 8 ¶ 50. Mr. Kinnune informed DSHS on May 12, 2020. ECF No. 57 at 8 ¶ 51.

On June 26, 2020, Mr. Kinnune reapplied for his job. ECF No. 57 at 10 ¶¶ 71-72. In anticipation of Mr. Kinnune's return, DSHS employees held a number of meetings and collected documents. ECF No. 57 at 10-11 ¶¶ 74-86.

On August 28, 2020, DSHS managers and employees scheduled a meeting with Mr. Kinnune to discuss the terms of his return. ECF No. 38-1 at 14 ¶ 86; ECF No. 49 at 12 ¶ 86. On September 1, 2020, Mr. Kinnune returned to ESH full-time. ECF No. 44 at 5 ¶ 23; ECF No. 59 at 5 ¶ 23.

Following his return, Mr. Kinnune was dissatisfied with the conditions and circumstances of his employment. ECF No. 44 at 5 ¶ 21; ECF No. 59 at 4-5 ¶ 21; ECF No. 57 at 13 ¶ 97, 14 ¶¶ 102, 109. On September 23, 2020, Mr. Kinnune requested leave to work with the Spokane County Sheriff Department, which DSHS granted. ECF No. 57 at 15 ¶ 116. On September 24, 2020, Mr. Kinnune reported to human resources that he believed he had experienced a hostile work environment at ESH. ECF No. 57 at 14 ¶ 109. On January 26, 2021, ESH sent Mr. Kinnune a letter indicating that DSHS completed an investigation into his claims. ECF No. 44 at 6 ¶ 26; ECF No. 46-2 at 6; ECF No. 59 at 5 ¶ 26.

In December 2020, Mr. Kinnune's supervisor admonished him for sending a holiday email to ESH staff. ECF No. 57 at 15-16 ¶¶ 117-119. In May 2021, DSHS opened an investigation into whether Mr. Kinnune misrepresented his leave of absence. ECF No. 57 at 16 ¶¶ 120-123. DSHS closed the investigation with no adverse findings against Mr. Kinnune. ECF No. 57 at 16 ¶ 122.

On August 16, 2021, ESH sent a letter to Mr. Kinnune directing him to return to ESH on September 30, 2021. ECF No. 39-3 at 166 (referencing an August 16, 2021 letter); ECF No. 45-12 at 2 (referencing an August 16, 2021 letter). On September 23, 2021, Mr. Kinnune, through counsel, sent a letter to DSHS explaining that Mr. Kinnune could not return to ESH, as he believed ESH violated federal and state laws. ECF No. 38-1 at 20 ¶ 125; ECF No. 39-3 at 166; ECF No. 49 at 17 ¶ 125. On October 1, 2021, DSHS's counsel spoke with Mr. Kinnune's counsel, who clarified that Mr. Kinnune would resign from ESH. See ECF No. 45-12 at 2. Mr. Kinnune maintains that his resignation was not voluntary. ECF No. 59 at 5-6 ¶ 27. On October 4, 2021, DSHS told Mr. Kinnune that his effective last day would be October 5, 2021. ECF No. 45-12 at 2.

On November 16, 2022, Mr. Kinnune filed a complaint in the Superior Court of Washington for Thurston County, No. 22-2-03157-34. ECF No. 1 at 1. He alleges violations of (1) the Uniformed Services Employment Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-4333, and (2) the Washington Law Against Discrimination (“WLAD”), RCW 49.60. ECF No. 2-2. On January 6, 2023, Defendants removed to this Court. ECF No. 1.

LEGAL STANDARD

A district court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906 (9th Cir. 2019).

“A fact is ‘material' only if it might affect the outcome of the case, and a dispute is ‘genuine' only if a reasonable trier of fact could resolve the issue in the non-movant's favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court “must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inference in the nonmoving party's favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018).

The moving party bears the initial burden of demonstrating the basis for its motion and identifying the portions of the record and the evidence that show the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323 (quoting former Fed.R.Civ.P. 56(c)). After the moving party has satisfied its burden, to survive summary judgment, the non-moving party must demonstrate with evidence on the record “specific facts” showing that there is a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient[.]” Anderson, 477 U.S. at 252. A party may move for summary judgment on part of a claim or defense. Fed.R.Civ.P. 56(a).

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ....” Anderson, 477 U.S. at 255. “[W]hen parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits,” but the court must consider all evidence before it when separately reviewing the merits of each motion. Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (second alteration in original).

DISCUSSION

Mr Kinnune moves for partial summary judgment, asking the Court to decide as a matter of undisputed fact and law that (1) Mr. Kinnune was entitled to reemployment under USERRA, (2) DSHS failed to reemploy Mr. Kinnune as required under USERRA, (3) Mr. Kinnune was entitled to USERRA and WLAD's anti-discrimination provisions due to his protected status, and (4) Mr. Kinnune was entitled to USERRA and WLAD's anti-retaliation provision due to his protected activity. ECF No. 38. DSHS moves for summary judgment, arguing that (1) DSHS met its reemployment obligations under USERRA, and that Mr. Kinnune cannot establish (2) a hostile work environment, (3) an adverse employment action, (4) discriminatory motive, or (5) that any alleged USERRA violations were willful. ECF No. 43.

A. USERRA Reemployment

Congress enacted USERRA to ease the burden of military service on servicemembers' civilian careers and employment. Belaustegui v. Int'l Longshore & Warehouse Union, 36 F.4th 919, 923 (9th Cir. 2022) (quoting 38 U.S.C. § 4301(a)(1)). USERRA provides that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits . . . of this chapter[.]” 38 U.S.C. § 4312(a). The Ninth Circuit has instructed that USERRA is to be “liberally construed for the benefit of those who left private life to serve their country in its hour of great need.” Belaustegui, 36 F.4th at 923 (quoting Ziober v. BLB Res., Inc., 839 F.3d 814, 819 (9th Cir. 2016)) (quotation marks omitted).

Mr Kinnune argues that he is entitled to reemployment under USERRA as a matter of law, and the parties...