#283 - Pl's Opp. To Defs' Partial SJ

Case 2:08-cv-01827-JLR Document 283 Filed 01/24/11 Page 1 of 27
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THE HONORABLE JAMES L. ROBART
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UNITED STATES DISTRICT COURT
10 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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LONDI K. LINDELL,
12 No. CV 08-1827 JLR
Plaintiff,
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v.
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CITY OF MERCER ISLAND, a Washington PLAINTIFF LINDELL'S OPPOSITION
15 municipal corporation; MERCER ISLAND CITY TO DEFENDANTS’ PARTIAL
MANAGER RICHARD CONRAD, in his official SUMMARY JUDGMENT
16 and individual capacities; MERCER ISLAND
DEPUTY MAYOR JIM PEARMAN, in his official NOTE ON MOTION CALENDAR:
17 and individual capacities; MERCER ISLAND January 28, 2011
COUNCILMEMBER ERNEST JAHNCKE, in his
18 official and individual capacities; MERCER
ISLAND FINANCE DIRECTOR CHARLES
19 CORDER, in his official and individual capacities,
20 Defendants.
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THE BLANKENSHIP LAW FIRM, P.S.

PLAINTIFF LINDELL'S MOTION OPPOSITION TO 28th Floor, Washington Mutual Tower
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY 1201 Third Avenue
JUDGMENT (Cause No. CV 08-1827 JLR) Page i Seattle, Washington 98101
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1 Defendants’ attempt to dismiss Ms. Lindell’s claims of discrimination and retaliation must
2 fail. Indeed, it is undisputable that Lindell’s complaints about a sexually hostile work environment
3 resulted in a legal memorandum being written by the City Attorney, warning the City of “potential
4 claims and/or liability” for “quid pro quo harassment” and a “hostile work environment.” In turn,
5 an investigation into such allegations was conducted by an independent, third-party investigator
6 hired by the City. Notably, the investigator verified Lindell’s concerns, reasonably concluding not
7 only that “potentially successful gender discrimination, sexual harassment, and hostile work
8 environment claims could be made by both female and male staff members,” but also that “at least
9 three other staff members [were] at risk of being retaliated against by the City Manager;” Ms.
10 Lindell was identified as one such staff member at risk. Ignoring the investigator’s advice, the City
11 nonetheless notified Lindell of her pending termination within just twelve days of the investigator’s
12 findings, and ultimately terminated her within two months of Ms. Lindell’s counsel complaining of
13 retaliation on her behalf. Conceding liability, the City Manager testified that receiving the “letter of
14 retaliation” was a basis for her termination. Defendants’ motion must be denied.
15 I. STATEMENT OF FACTS
A. Londi Lindell Had an Outstanding Performance History at the City of Mercer Island.
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Ms. Lindell was a top performer at the City of Mercer Island, always receiving the highest
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rating for her performance (“outstanding”) from City Manager Rich Conrad, who praised her for
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her “professionalism,” “good nature,” and “profound loyalty,” and believed Ms. Lindell to be “one
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of the City’s greatest assets.” Exhs. C-E. As such, after over five years as City Attorney, in January
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2007, Lindell was promoted to Deputy City Manager, the second highest position within the City.
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Ex. F at 124. She was committed to Mercer Island, and having two school-age children at the time,
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was content being Deputy City Manager, even turning down offers to become City Manager of
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Federal Way, a higher paying job at a larger city. LL Decl.
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B. The City of Mercer Island Had a History of Tolerating a Sexually Hostile Work
25 Environment and Retaliating Against Its Employees.
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During the time Lindell was acting as City Attorney, City Manager Conrad solicited sex
from City Clerk Tina Eggers. Conrad 147:15-149:12 (Ex. RRR) (admitting under oath that he “did
make a proposition, and she declined it.”); Ex. I; SB Decl., Ex. DDDD. After Conrad’s rejected
JUDGMENT (Cause No. C 08-1827 JLR) Page 1 Seattle, Washington 98101
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1 proposition, he continued to harass her, making comments like “you just give me the word and I’ll
2 divorce my wife,” “you’re one of the reasons I enjoy coming to work,” and “there’s this smell
3 about you.” Id. Eggers opposed his conduct, seeking help from then HR Manager Kryss Segle, but
4 nothing was done, and instead Eggers suffered retaliation, with Conrad becoming “increasingly
5 violent and irrational,” even retaliatorily accusing her of having an affair with a vendor, yelling that
6 she was “crossing into dangerous territory, and people lose their jobs for doing this.” Id.
7 Finally, after over a year of harassment and retaliation, enabled by HR Manager Segle
8 covering-up Ms. Eggers’ complaints in violation of the City’s anti-harassment policy, Conrad
9 finally disclosed his sexual advance to Lindell, the City Attorney at the time. Ms. Lindell hired
10 outside investigator Amy Stephson, an investigation was conducted, and ultimately the matter was
11 mediated and resulted in Ms. Eggers leaving the City and being paid approximately $90,000.1 Dkt.
12 268-1; LL Decl. Conrad was disciplined for his conduct, suspended without pay for two weeks (one
13 week stayed), denied a raise for the following year, and ordered to take sexual and anti-harassment
14 training. Ex. J; Conrad 152:22-154:24 (Ex. RRR). Segle was also disciplined for violating City
15 policy, receiving a written warning. Ex. K. She was nonetheless promoted to HR Director– the top
16 position overseeing all aspects of human resources – by City Manager Conrad.2 LL Decl.
17 Unfortunately, even after this costly indiscretion, City Manager Conrad and HR Director
18 Segle continued to expose the City to liability, by both participating in and tolerating conduct that
19 violated discrimination laws and City policy. LL Decl. Exhs. A, B. Offensive and sexually
20 inappropriate e-mails were commonplace between employees (Exhs. L, M, N), and conversations
21 often crossed the line, eventually degenerating to the point where, in March 2007, after conducting
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1
23 The City incorrectly states that as City Attorney, Lindell concluded that Conrad had not violated any City's sexual
harassment laws. As explained in Lindell’s declaration, Conrad’s discipline was decided based on Mayor Merkle’s
24 recommendation, which was approved by the Council. After the discipline was decided, Merkle, with Lindell's
assistance, prepared the disciplinary memo that concludes Conrad violated the City's anti-harassment policy, but he
25 did not engage in quid pro quo harassment or create a hostile work environment. As she testified, the Merkle memo
does not contain her legal conclusion, as she believed Conrad had created a hostile work environment and engaged
26 in illegal retaliation. At the time, Lindell believed Conrad’s conduct was a "blip in the radar screen" and would not
happen again. In hindsight, she believes she was mistaken. LL Decl; Lindell 172:13- 177:14 (Ex. QQQ); Ex. CC.
2
When Segle was promoted to HR Director by Conrad over the concerns of at least two Directors the City instigated
a firewall. LL Decl; Lindell 59:1-60:9 (Ex. QQQ); Boettcher 70:14-71:3 (Ex. XXX). HR Director Segle was not to
be involved in any HR matters involving her husband, Johnny Segle and the DCM would be charged with handling
any disciplinary issues that may arise relating to Johnny to avoid potential conflict. Conrad 112:2-12 (Ex. RRR).
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1 an exit interview with a police detective who was retiring, HR Director Segle broadcasted to City
2 employees that she was not wearing any underwear and had accidentally flashed the detective,
3 resulting in a sexually offensive office-wide joke. Knight Int. 13-14 (Ex. DD) (“Kryss came back to
4 Knight to talk to her and said that the officer kept looking at her belt so it occurred to Kryss later
5 that he might have been able to see her vagina . . . [Kryss] demonstrated and asked whether that
6 might have happened. Knight acknowledged that it had probably happened . . . [Leslie] Burns went
7 down and asked the officer whether he had noticed and he said "yes." . . . Kryss was teased
8 unmercifully by others . . .”);3Conrad 56:5-57:5;317:10-25 (Ex. RRR) (Segle “reported that she did
9 not have underwear on” and warned him that “you may hear giggling in the hallway.” ). Such jokes
10 not only violated anti-harassment laws, but as explained by Communications Coordinator Joy
11 Johnston, they were especially offensive coming from the City’s HR Director:
12 Johnston was very uncomfortable when she was pulled in to Kryss' office to hear that
Kryss had not been wearing any underwear that day and that during the interview, her
13 skirt had been up and the police detective had noticed . . . Kryss had been wearing no
underwear, her skirt was short, and apparently she had had a Brazilian wax job. Brown,
14 who is pretty funny, gave Kryss the granny pants underwear and the hair clip as part of a
joke . . . Johnston is pretty annoyed because Kryss is her supervisor. Johnston is trying to
15 perform well and to make a name for herself and she thought it reflected poorly on her that
her supervisor was involved in this kind of activity. It was clear to Johnston that the entire
16 Police Department knew Kryss did not have any underwear on during the exit interview.
For Johnston it felt like her position had been taken down a notch. Johnston at 5 (Ex. HH).
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Nonetheless, despite knowing about the incident, Conrad disregarded Lindell’s complaints,
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failing to take any disciplinary action. Lindell 127:13-133:15 (Ex. QQQ). Months later, in August
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2007, the joking continued with then Assistant City Attorney Knight emailing HR Director Segle
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suggestive pictures of a woman with her legs over her head, wearing skimpy black panties and a
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bra, with the caption: “Maybe this is how you should conduct your exit interviews.” Ex. AA.
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These individuals – the City Manager, Human Resource Director, and Assistant City
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Attorney – were supposed to be running the City by enforcing City policy and anti-harassment laws
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3
Neither the Reed investigation reports nor the statements contained within the reports are hearsay. The interviews
25 fall within the business record exception ER 803(6). Exhs. AA, BB. The statements within the reports made by city
officials, including individually-named Defendants, are admissions by party opponents and so are not hearsay under
26 Fed.R.Evid. 801(d)(2).Furthermore, the written investigation reports are not hearsay because they are not offered to
prove the truth of the statements contained within. Fed.R.Evid. 801(c). See, e.g., Hernandez v. City of Vancouver,
277 Fed. Appx. 666, Fn.2 (9th Cir. 2008) (although affidavit contained two out-of-court statements, neither
statement was hearsay. The court held that the first statement; namely, he plaintiff “had gotten his job because he
was Mexican,” was not “offered to prove the truth of the matter asserted, but rather as evidence of Defendants'
racially-tinged motives.” The second statement was not hearsay because it was an admission of a party-opponent.”).
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1 and through example. Instead, jokes about the HR Director revealing her “vagina” to a police
2 detective was not only tolerated by the highest levels of the City, but encouraged and perpetuated.
3 As such, Ms. Lindell developed serious concerns4 regarding the conduct of City Manager
4 Conrad and HR Director Segle, 5 the final straw coming in fall 2007, when City Manager Conrad
5 inappropriately interfered in the disciplining of HR Director Segle’s husband, Johnny Segle, for his
6 violations of the City’s sexual harassment policy and refused to discipline Segle for writing her
7 husband’s grievance, despite her role as HR Director. LL Decl.
8 C. When Conrad and Segle Again Violated City Policy, Lindell Complained.
9 In June 2007, maintenance workers were caught watching a video of animals having sex,
10 while shouting vulgar comments, and were accordingly counseled by their supervisor. During the
11 counseling, Johnny Segle stated, “what, no more boobies” in front his supervisor and co-workers
12 (including female employees). Boettcher 45:2-25(Ex. XXX). Pursuant to the enacted firewall
13 prohibiting HR Director Segle from handling issues involving her husband, Lindell was directed to
14 step in. Exhs.Q, P; Conrad 117:7-119:17 (Ex. RRR). Within less than two weeks of being notified
15 of the incident, Lindell completed her role, recommending the lowest level of written discipline:
Attached is a discipline memo for [Johnny] Segle . . . I also need you to confirm the facts
16 as recited are correct . . . as I discussed with Glenn [Boettcher], the Department Directors
need to decide on the level of discipline . . . My recommendation on Segle due to his
17 comment during the Team Mgr. meeting . . . is a Reminder I Notice-Written Warning . . .
my role as HR in investigating this matter and preparing the draft memo is now complete.
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Ex. P. As such, Johnny was disciplined by the Maintenance Director, receiving a write-up for
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violations the City’s anti-harassment policy.6 Ex. Q; Boettcher 45:2-48:24 (Ex. XXX).The issue
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21 4
Not only did their conduct violate the City’s anti-harassment policies, but Conrad had been accused of preferential
treatment of Segle, with Finance Director Chip Corder alerting Lindell to the fact that Conrad had approved a salary
22 increase for Segle that was inconsistent with the City’s compensation policy. Ex. Y. Moreover, Conrad would make
troubling statements to City employees about Segle, such as telling then Assistant City Manager Mayer that “one of
23 the only reasons he could still get up in the mornings and come to work was because of Segle.” PM Decl. (Ex. TT).
5
Other conduct by HR Director Segle further undermined her role as the City’s HR Director. Kryss Segle’s
24 husband who worked in the maintenance department, had pictures of the HR Director in lingerie posted in his work
locker for other employees to see. Knight Int. at 14 (Ex. DD); Knight 135:21-136:23 (Ex. SSS). Moreover, Segle
25 had boasted about participating in a lingerie show at the City and had openly discussed her previous intimate
relationship with a City Director in the workplace. PM Decl. (Ex. TT). Employees, including Defendant Corder, had
26 also complained that HR Director Segle dressed overly provocatively. Corder 186:18-187:7 (Ex. UUU). In
response, HR Director Segle and City Attorney Knight were instructed to revise the City’s dress code. The
PowerPoint presentation prepared by Segle and Knight made direct references to the City’s Segle’s past lingerie
shows with a slide that stated: “Sorry folks, no more lingerie shows at lunch time!” Ex. O.
6
Notably, Maintenance Director Boettcher explained that it was not just Johnny’s sexual comment that necessitated
action, but also his self-promoted reputation for being “untouchable” as a result of his wife’s position: “Boettcher
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1 should have been resolved there; instead HR Director Segle breached the firewall, actually writing
2 a grievance opposing the discipline for her husband despite her role as HR Director. Ex. R. More
3 incredibly, as confirmed by both Conrad and Segle, Segle consulted with Conrad the weekend
4 before Johnny filed the grievance and Conrad endorsed her involvement, telling Segle that “he
5 would probably do the same thing if he were in her position.” Conrad Int. at 4 (Ex. EE); Ex. R, T.
6 Not only did Segle write her husband’s grievance – a complete violation given her position
7 as the highest human resource employee of the City – but she also lobbied Conrad heavily to
8 intervene, even threatening to resign if he did not reduce Johnny’s write-up to a warning. Exhs. T,
9 U, V. In response, Conrad stated he was “tempted to break all the rules” by “tearing up” Johnny’s
10 discipline and implementing an “alternative process.” Ex. T; Conrad 123:14-126:23 (Ex. RRR).
11 When she discovered that Conrad was planning on deviating from City policy at Ms.
12 Segle’s request, Lindell voiced opposition, telling Conrad that he was failing to take appropriate
13 remedial actions that were necessary to protect the City and comply with discrimination and
14 harassment laws. PM Decl. ¶ 8 (Ex. TT); LL Decl. City Attorney Bob Sterbank and Assistant City
15 Manager Pete Mayer also opposed Conrad’s conduct. PM Decl. (Ex. TT); Conrad Int. 5 (Ex. EE).
16 Worried that Conrad would violate laws despite his legal advice,7 Sterbank wrote a legal
17 memorandum on October 3, 2007, advising Conrad that such conduct could place the City at risk
18 by tolerating sexual harassment, discussing liability for quid pro quo harassment and a hostile work
19 environment in violation of Title VII and the Washington Law Against Discrimination. Ex. V.
20 Sterbank also warned that Directors, including Lindell, “perceive the relationship to be similar in
21 character to the City Manager’s former City Clerk [Eggers]” and “that his relationship with Ms.
22 Segle, and his intervention in her husband’s disciplinary matter, made them ‘physically sick,’ and
23 was keeping them awake at night with worry.”8 Id.
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has heard ‘innumerable times’ from many people over the years that Johnny has said that ‘Management won't mess
25 with me.’ There were too many people in the room who heard him make the ‘boobies’ comment to let it go. Many
of them were the same people who’d heard Johnny say that management wouldn't deal with him . . .” Boettcher
26 48:5-49:24 (Ex. XXX); Boettcher Int. 10 (Ex. II). Johnny had a history of problematic conduct, including stealing
City property, and according to Boettcher, his disciplining was “inevitable.” Id. at 2.
7
Conrad did not initially discuss his alternative plan with the City’s Attorney, Bob Sterbank “because he knew that
Sterbank would try to talk him out of it.” Conrad Int. 5 (Ex. EE).
8
Notably, the only two Directors cited by name – Ms. Lindell and Assistant City Manager Pete Mayer – were
ultimately pushed out of the City, along with Mr. Sterbank. LL Decl.; Ex. UU-XX; PM Decl. (Ex. TT).
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1 Upon receipt of the Sterbank Memo, Defendant Conrad became outraged, telling Lindell he
2 wanted to fire Sterbank for writing the memo and directing her to pressure him to revise the memo.
3 Lindell refused, telling Conrad that firing Sterbank constituted retaliation and would further expose
4 the City. Conrad then insisted that Lindell and Assistant City Manager Mayer conduct a sham
5 investigation to rebut the memo and “clear his name.” LL Decl, Conrad 76:23-80:10, 288:6-289:22
6 (Ex. RRR); Lindell 110:3-112:8 (Ex. QQQ); PM Decl. (Ex. TT). When they refused, believing it
7 would not properly address the hostile work environment, Conrad grew angrier, writing: “why [] is
8 so much resistance to the “name clearing” process . . . When are you guys going let me lead my
9 City? I feel I am being held hostage. What's going on? It is shaking my trust in all of you.” Ex. X.9
10 Ultimately, in adherence with the City’s anti-harassment policy, the City hired outside
11 investigator Marcella Reed – an experienced employment lawyer and investigator – to conduct an
12 investigation into the claims from the Sterbank memo (“Reed Investigation”); namely whether
13 Conrad had created a hostile work environment or engaged in quid pro quo harassment. Exhs. V, W,
14 Z; Reed at 88:10-25; 98:15-100:25 (Ex. YYY).
15 D. Defendants Begin to Conspire to Retaliate and Discriminate Against Lindell.
16 Despite being directed to refrain from communicating with any of the witnesses during the
17 Reed Investigation, City Manager Conrad began lobbying City employees, going as far as asking
18 Ms. Lindell to contact City councilmembers and employees to convince them he had done nothing
19 wrong. LL Decl.; Ex. B; Holmes Int. 5-6 (Ex. LL). Although she felt stifled by Conrad’s pressure to
20 protect him, Ms. Lindell reported much of Conrad’s and Segle’s sexually offensive and retaliatory
21 conduct discussed above, including recounting the flashing incident, the Eggers’ allegations,
22 “sexually explicit jokes,” retaliation and yelling by Conrad “over the recent issues regarding
23 Segle,” and “inappropriate” interactions by Conrad with Segle. Id. Ms. Lindell also provided Reed
24 with a chronology she began keeping in September 2007, which further outlined her concerns
25 regarding the City’s hostile and retaliatory environment. Ex. B; Lindell 107:2-109:7 (Ex. QQQ).
26
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Meanwhile, Segle continued to lobby Conrad to interfere in Johnny’s discipline, threatening to leave the City if
lesser discipline was not imposed. Ex. S-U. In response, Conrad made multiple threats to resign if Segle were to
leave the City, retaliatorily screaming at Lindell for opposing his attempts to circumvent the City’s anti-harassment
policies. Lindell Int. 31 (Ex. CC); Spietz Int. 5 (Ex. NN); Segle Int. 13 (Ex. JJ); PM Decl.(Ex. TT); LL Decl.
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1 When Lindell refused to manipulate the investigation, and reported discriminatory conduct,
2 City Manager Conrad attempted to retaliatorily convince employees that Ms. Lindell was engaging
3 in a coup and was “conspiring” to take his job. As told by then Assistant City Manager Mayer:
4 Conrad placed a straw on the table and asked me something to the effect of: “What side of
the line are you on, mine or Londi’s?” . . . I told Conrad I was not picking sides. His
5 response was: “It’s too late for that, Pete.” . . . Conrad told me that Ms. Lindell’s
complaining was merely a conspiracy to get him fired so Ms. Lindell could get his job . . .
6 I again told Conrad that I did not believe that a conspiracy existed or that anyone was
trying to overthrow him as City Manager10 . . . At some point, Conrad conveyed to me that
7 Mr. Sterbank and Ms. Lindell needed to leave the City . . .
When I advised Conrad that I was concerned that the environment was becoming
8 retaliatory, he became extremely angry and told me “retaliation” is a loaded word . . .
[and] that “things could have worked out differently” if I had played my cards differently.
9
PM Decl. ¶¶ 16-17 (Ex. TT). Knight, Segle, Burns, and Corder, all having much to gain, 11
10
also turned against Lindell, Sterbank, and Mayer, retaliatorily spreading false rumors, while
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advancing their conspiracy theory; a theory diplomatically characterized by Investigator Reed as
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“unusual.” Cairns 44:16-54:5 (Ex. WWW); Holmes 123:16-126:9; 227:6-16 (Ex. VVV); Pearman
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135:19-143:18 (Ex. TTT); Reed 235:8-25 (Ex. YYY); Exhs. ZZ, AAA.12
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E. Despite the Investigation Revealing Serious Misconduct, Defendants Terminated
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Reed’s Services and Escalated Their Retaliation Against Ms. Lindell.
On December 3, 2007, after completing thirteen interviews of Mercer Island employees and
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reviewing voluminous documents (Ex. AA), Investigator Reed reported her findings to the City
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Council. LL Decl; Ex. OO-PP. Among other findings, Reed concluded that “potentially successful
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gender discrimination, sexual harassment, and hostile work environment claims could be made by
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both female and male staff members.” Ex. QQ. Especially relevant to Lindell’s lawsuit, Reed also
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warned of “retaliation,” writing that Conrad “has shown no ability to control his behavior with
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subordinates in the face of advice from his staff and attorneys,” “[t]here is evidence the City
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Manager is preparing to retaliate against City Attorney Sterbank,” and that there were “at least
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three other staff members at risk of being retaliated against by the City Manager.” Id. (Reed
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10
Prior to these events, Conrad had been criticized for being “paranoid about losing his job.” SB Decl., Ex. BBB.
11
26 Not only were all of their futures in Conrad’s hands, but Burns, Knight and Segle are close friends, who had
vested interest in the outcome of the investigation given the allegations against Segle. Sterbank’s departure would
also lead to Knight’s promotion to City Attorney. LL Decl.; Exhs. SS.
12
Notably, prior to the Reed Investigation, these same individuals universally respected and trusted Ms. Lindell.
Knight Int. 1 (Ex. DD); Exhs. C-E. HR Director Segle even advocated for Ms. Lindell’s promotion to Deputy City
Manager in October 2006, stating “I absolutely believe you can and should trust her.” Ex. G.
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1 testified that the people “at risk of being retaliated against” were Lindell (terminated), Sterbank
2 (leaving the City after receiving a $137,000 severance), and Mayer (resigned after suffering
3 retaliation). Reed 56:16-57:21 (Ex. YYY); PM Decl. (Exh. TT); Exhs. UU, VV.
4 Based on these findings, Reed also advised the Council on December 3 that City Manager
5 Conrad should be terminated. Reed Dep. at 72:6-73:14 (Ex. YYY).
6 In order to protect Conrad’s job and punish Lindell,13 the City fired Reed on December 3,
7 2007, and instead, the City Council decided to conduct its own “investigation.” Then Mayor
8 Cairns, then Deputy City Mayor Pearman, and Defendant Jahncke, each having no experience or
9 training in conducting employment investigations into sexual harassment or retaliation, were the
10 “investigators,” and dubbed themselves the “Cabinet.” Pearman Dep. at 135:19-143:18 (Ex. TTT);
11 Cairns Dep. 44:16-54:5 (Ex. WWW); LL Decl. Rather than investigate allegations of harassment
12 and retaliation, the Cabinet adopted Conrad’s and Corder’s conspiracy theory, re-focusing the
13 inquiry to whether Ms. Lindell and Mr. Sterbank had planned a “coup.” Id., Ex. YY.
14 The Cabinet deliberately disregarded Investigator Reed’s month of work,14 reviewing no
15 investigative interviews or materials. 15 Cairns 21:12-19 (Ex. WWW); Pearman 98:21-102:24,
16 192:23-193:3(Ex. TTT). Instead, they interviewed Directors for “20 minutes to half an hour,”
17 allegedly keeping no notes, and accepting Knight’s, Burns’, and Corder’s allegations as the gospel.
18 Knight and Burns told the Cabinet that Lindell had engaged in a “conspiracy” to overthrow Rich
19 Conrad, that they had heard Ms. Lindell bragging about her coup at a social function, and that Ms.
20 Lindell had also spread two rumors about City Directors. Id. And Corder, despite having absolutely
21 no personal knowledge of the underlying events, testified that “his comprehensive knowledge,”
22 “was drawn from a conversation with Kryss [Segle]” (Corder at 274:20-276:2 (Ex. UUU),
23
13
24 Defendants’ attempt to discount Reed’s findings by suggesting that her findings were made in “the middle” of her
investigation is without merit. Reed’s “investigation status” concluded with the “recommendation” that the City “do
25 not request a written report,” and “wrap up the investigation (summarize interviews and collect remaining
documents).” Ex. QQ. Moreover, in a November 15, 2007 email, in response to Conrad’s “concern[s] about any
26 delays in wrapping up the investigation,” Acting City Attorney Bolasina noted that he was “optimistic” that the
investigation would be “wrapp[ed] up by 12/3,” the date Reed ultimately presented her findings. Ex. RR.
14
Reed’s investigation cost the City $38,000. Ex. FFF. This does not include acting city attorney Bolasina’s costs.
15
Indeed, the Cabinet testified that they did not know that Conrad admitted to propositioning Eggers for sex and
believed that the Segle flashing incident was entirely made up by Lindell. Cairns at 25:2-27:1, 42:5-43:4 (Ex.
WWW); Pearman at 32:11-43:10; 213:21-214: (Ex. TTT)
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1 provided the Cabinet with a scathing memorandum accusing Ms. Lindell and Mr. Sterbank of a
2 conspiracy.16 Exs. ZZ, AAA. Notably, however, Pearman and Cairns testified that during their
3 “investigation” they never asked Lindell about the allegations or for her side of the story. Pearman
4 139:17-140:10; 278:2-282:1 (Ex. TTT); Cairns Dep. 44:16-54:5 (Ex. WWW). Had they, the
5 Cabinet would have learned that such allegations were entirely baseless and retaliatory, just as Reed
6 warned. LL Decl; Boettcher at 34:6-35:19;120:13-17. The Cabinet was not interested in the truth.
7 Indeed, each accusation can be rebutted. First, the Cabinet alleged that Lindell fabricated
8 HR Director Segle’s flashing incident. Pearman at 32:11-43:10 (Ex. TTT). However, as discussed
9 above, numerous employees, including Knight and Burns, reported the exact same incident to
10 Reed. Knight Int. 13, 16 (Ex.DD); Burns Int. 3-4 (Ex. MM). Second, the Cabinet alleged that
11 Lindell lied about Officer Holmes having an affair with HR Director Segle. However, this
12 allegation was completely fabricated, and in fact when deposed, Officer Holmes testified he only
13 ever heard the rumor about Lindell’s purported allegations from Knight and Burns.17 Holmes Dep.
14 123:16-126:9 (Ex. VVV). In fact, the only employees ever heard promoting the idea that Segle was
15 having an affair with Holmes, was Segle herself, along with her close friends Knight and Burns.
16 Id., Pearman 278:2-282:1 (Ex. TTT). Lindell never made such an allegation. LL Decl.
17 Based again on statements by Knight and Burns, the Cabinet also alleged that. Lindell had
18 expressed her desire to overthrow Conrad at a social event, which occurred in September 2007.
19 Cairns Dep. 44:16-54:5 (Ex. WWW). Curiously, however, despite the event occurring before the
20 Reed Investigation, neither Burns nor Knight recounted such statements to Ms. Reed. LL Decl.18
21 F. Ms. Lindell Was Retaliatorily Fired Without Any Due Process.

Investigator Reed’s conclusions proved all too prophetic, and on or around December 17,
22
just fourteen days after Reed delivered her findings, Defendants informed Lindell and Sterbank that
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they should seek other employment. Ex. GGG; Cairns Dep. at 145:15-152:10 (Ex. WWW).
24
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25 Corder was awarded for his loyalty to City Manager Conrad. SB Decl., Ex. CCCC.
17
Around this time, Segle asks: “How’d your conversation go with Ed [Holmes]?” and Knight replies: “Good. He
26 was calm at first but it got him riled up.” Ex. DD. Their rumor had its desired effect, with Holmes testifying that
“[It] caused me significant concerns with Londi.” Holmes Dep. 132:23-133:21 (Ex. VVV).
18
As explained by Lindell during her deposition the “nail in Rich’s coffin,” reference referred to Lindell having
remorse about “reluctantly being forced” to provide possibly damaging statements against Conrad, that could lead
to his termination. She “was very distressed and saddened by the scope of the investigation, and saddened by
watching my city manager engage in conduct that was going to be significant.” Lindell 263:23-264:12 (Ex. QQQ).
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1 Believing that the impending termination was illegal and violated her civil rights, Ms. Lindell
2 further engaged in protected activity by retaining legal counsel, who appeared on her behalf. Ms.
3 Lindell’s lawyer took action, including addressing some of Ms. Lindell’s concerns regarding
4 retaliation in writing in February 2008. Ex. HHH.
5 Ultimately, Ms. Lindell was officially notified of her termination by email on or around
6 April 14, 2008,19 with Defendants retaliatorily reneging from their previous agreement to allow
7 Lindell adequate time to find alternative employment.20 Ex. III. Lindell was denied any type of
8 “name clearing hearing” or a Loudermill hearing before she was terminated without due process.
9 LL Decl. Notably, Conrad testified under oath that the February 2008 letter from Lindell’s attorney
10 (Ex. HHH) referred to by Conrad as the “letter of retaliation,” “validated [his] previous suspicion
11 that the relationship between the City and Lindell was irreparable,” and was a basis for her
12 termination. Conrad Dep. 312:1-314:1 (Ex. RRR). 21 Similarly, when asked if there were “any
13 other reasons that caused you to lose trust and fire Ms. Lindell,” Conrad also testified that the
14 “mediation letter,” which “accus[ed] [Conrad] of retaliating against her in violation of Washington
15 and federal law,” was a document that “was important in [his] thinking . . . underscoring how the
16 relationship was broken.” Id. at 223:18-225:1. Sterbank and Mayer were also retaliatory pushed out
17 of the City. Exhs. UU, WW, XX;, PM Decl (Ex. TT)., SB Decl., Ex. EEEE.
18 II. LEGAL ANALYSIS AND ARGUMENT

Because employment cases are so often fact intensive, courts have consistently found that
19
“summary judgment in favor of employers is seldom appropriate.”22 deLisle v. FMC Corp., 57
20
21 19
Prior to firing Ms. Lindell, Defendants began pulling documents off of Ms. Lindell’s computer and actively
building their case against Ms. Lindell. Knight 276:18-279:18; 282:7-285:23 (Ex. SSS). Defendants were eager to
22 terminate her employment, and vindictive in talking about Ms. Lindell. Ex. JJJ.
20
Conrad testified that he consulted with City Attorney Katie Knight before he decided to terminate Lindell.
23 Moreover, Knight testified that she reviewed the Reed investigative materials in March 2008, right before Lindell
was terminated on April 14, 2008, further evidencing Defendants’ retaliatory motives. Knight 97:23-98:3 (Ex. SSS).
21
24 Defendants have continued to retaliate against Lindell, threatening bar complaints (Knight 28:6-13 (Ex. SSS); Ex.
OOO), publicly filing slanderous materials (Dkt. 66), and filing baseless counterclaims against her, alleging that she
25 was “deceitful and dishonest” and precluding her from finding future employment. Dkt. 172.
22
Summary judgment is not warranted if a material issue of fact exists for trial. A motion for summary judgment
26 must be denied if the record shows any reasonable hypothesis which entitles the nonmoving party to relief. T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626 (9th Cir. 1987). The party moving for summary
judgment always has the burden to show the absence of a genuine issue concerning any material fact. Adickes v.
S.H. Kress & Co., 398 U.S. 144 (1970). When considering summary judgment, a court should not weigh the
evidence or assess credibility for the moving party; instead, “the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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1 Wash. App. 79, 83-84. See also McGinest v. GTE Service Corp., 360 F.3d 1104, 1112 (9th Cir.
2 2004). Thus, a “plaintiff in an employment discrimination action need produce very little evidence
3 in order to overcome an employer's motion for summary judgment. This is because the ultimate
4 question is one that can only be resolved through a searching inquiry – one that is most
5 appropriately conducted by a factfinder, upon a full record.” Chuang v. University of CA. Davis Bd.
6 of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000).
7 A. A Reasonable Jury Can Find that Plaintiff Lindell Was Retaliated Against in
Violation of Title VII and WLAD.
8
Title VII and the WLAD both forbid retaliation. In order to establish prima facie retaliation,
9
Ms. Lindell must show that (1) she engaged in a statutorily protected activity, (2) that Defendants
10
took an adverse action against her, and (3) there is a causal link between the protected activity and
11
the adverse action. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 506
12
(9th Cir. 2000) (elements under Title VII).23
13
1. Ms. Lindell Engaged in Protected Activity: It is unlawful for an employer to
14
retaliate against an employee for opposing any practices prohibited by Title VII or the WLAD. 42
15
U.S.C. § 2000e-3(a); RCW 49.6.210. As both statutes clearly prohibit discrimination, sexual
16
harassment and retaliation, complaints about any such practices clearly constitute protected activity.
17
Id. 24 Complaints need not be formal. See e.g., EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th
18
Cir.1989)(making an informal complaint to a supervisor is protected activity); Bahri v. Home
19
Depot USA, 242 F.Supp 2d 922, 956 (D.Or.2002)(“ employee complaining of a violation of Title
20
VII “need not utter the magic words ‘Title VII’” to constitute protected conduct). Moreover, as
21
recently made clear by the Supreme Court, the protection for opposition activity extends to
22
employees who confirm unlawful behavior during an employer’s internal investigation. Crawford
23
v. Metro. Gov’t of Nashville and Davidson County, 129 S.Ct. 846, 852 -853 (2009).
24
23
25 Washington courts have largely adopted Title VII’s framework to claims of employment discrimination and
retaliation cases brought under the WLAD. See Grimwood v. UPS, 110 Wash.2d 355, 362, 753 P.2d 517 (1988).
26 However, “[Washington’s] law against discrimination contains a provision requiring liberal construction, not
contained in Title VII…” Kahn v. Salerno, 90 Wn. App. 110, 118 (1998) (emphasis added).
24
Defendants’ briefing disregards all of Ms. Lindell’s complaints regarding retaliation. Dkt. 271. However, such
complaints clearly constitute protected activity. See e.g., Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir.
2004) (plaintiff made out prima facie case of retaliation based on her opposition to her former employer’s acts of
retaliation against a coworker who had sued the former employer for discrimination).
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1 An employee’s complaint about the treatment of others is also considered a protected
2 activity, even if the employee is not a member of the class that she claims suffered from
3 discrimination, and even if the discrimination she complained about was not legally cognizable.
4 See. Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir.1994)(prison guard had claim for retaliation if he
5 was discharged for complaining about the treatment of black inmates and he was acting on a
6 reasonable belief that a Title VII violation had occurred, even though the complained-of
7 discrimination was not a Title VII violation). Thus, an employee does not need to prove the
8 underlying claim of discrimination in order to establish a retaliation claim; rather “an employee
9 who opposes employment practices reasonably believed to be discriminatory is protected by the
10 ‘opposition clause’ whether or not the practice is actually discriminatory.” Graves v. Dept. of
11 Game, 76 Wn. App 705, 712 (1994); Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (same).
12 Here, as discussed above and verified by substantial evidence, numerous acts by Ms.
13 Lindell would constitute protected activity. For example, in addition to routinely voicing opposition
14 to sexually offensive comments, including the flashing incident involving Ms. Segle (Exhs. A, B;
15 PM Decl. (Ex. TT); LL Decl.), Ms. Lindell engaged in protected activity when she wrote Johnny
16 Segle up, noting that “the Employee Guidelines expressly prohibits harassment.” Ex. P.
17 Lindell engaged in further opposition activity when she complained to the City Attorney
18 and other Directors about Conrad’s conduct and his failure to act against workplace sexual
19 harassment, as memorialized in Sterbank’s Memo, which Conrad read. Id.; Ex. B; Mayer ¶ 5 (Ex.
20 TT) (“I was present when Ms. Lindell complained to me, City Attorney Sterbank and City Manager
21 Conrad about Mr. Conrad’s conduct being inappropriate and conflicting with the City’s anti-
22 harassment policies”). She refused to strong-arm City Attorney Sterbank into revising his memo, as
23 requested by Conrad, and opposed his retaliatory firing. Exhs. A, B; LL Decl; Lindell 110:3-112:19
24 (Ex. QQQ). All such acts constitute textbook opposition activity. See e.g., McDonnell v. Cisneros,
25 84 F. 3d 256, 262 (7th Cir. 1996)(employee engages in protected activity “by refusing to follow a
26 supervisor's order to fire a junior worker for discriminatory reasons”).

(206) 343-2700
1 Lindell also reported to Ms. Reed conduct that clearly violated anti-harassment laws and
2 constituted illegal retaliation, engaging in protected activity under Crawford.25 Ex. CC. She
3 documented unlawful harassment and retaliation by Defendants, which was provided to
4 Investigator Reed and contemporaneously read by Conrad. Ex. B; Conrad dep. at 65:19-66:25
5 (Exh. RRR); Lindell 107:2-109:7 (Ex. QQQ). Lindell also hired a lawyer to protect herself from
6 further retaliation, and significantly, through her counsel, complained of retaliation in a February
7 2008 letter to the City, which Conrad described as a “letter of retaliation.” Conrad Dep. 312:1-
8 314:1. Certainly such conduct would constitute protected activity. Cifra v. Gen. Elec. Co., 252 F.3d
9 205 (2d Cir.2001) (hiring an attorney to pursue discrimination claim constitutes protected activity).
10 Finally, relying on Clark County School Dist. v. Breeden, 532 U.S. 268 (2001), Defendants’
11 attempt to avoid liability by arguing that Ms. Lindell could not have “reasonably believed” that
12 conduct by the City and its employees (which Defendants grossly mischaracterized)26 constituted
13 discrimination, harassment, or retaliation. However, this argument is futile, especially given that the
14 independent outside Investigator Reed reasonably believed that “potentially successful gender
15 discrimination, sexual harassment, and hostile work environment claims could be made by both
16 female and male staff members” and that “there are at least three other staff members at risk of
17 being retaliated against by the City Manager.” Ex. QQ. Moreover, unlike the facts of Breeden,
18 which involved a single, isolated incident,27 here, there were numerous incidents leading both Ms.
19
25
Crawford is directly on point. In Crawford, the plaintiff reported sexual harassment in response to questions
20 during an internal investigation into another employee’s complaint. She was fired and claimed retaliation. The
Supreme Court held that the antiretaliation provision's protection extends to an employee who answers questions
21 during an employer's internal investigation. Crawford, 129 S.Ct. at 847 -848.
26
Ms. Lindell refutes Defendants’ mischaracterization of her protected activity. Not only does it fail to recognize
22 the majority of her opposition activity, but it also erroneously limits Lindell’s opposition activity to concerns about
sexual harassment against Segle or Lindell, neglecting to acknowledge that Lindell raised concerns about a hostile
23 work environment, quid pro quo harassment, and retaliation. In short, just because Ms. Lindell did not believe
Conrad and Segle were having an affair, does not mean she was unreasonable in believing that the City was at risk
24 of fostering a hostile work environment or quid pro quo harassment when the City Manager refused to enforce its
anti-harassment policies, permitted its HR Director and Assistant City Attorney to joke about flashing a police
25 detective (making other employees uncomfortable), allowed maintenance worker Johnny Segle to keep pictures of
HR Director Segle dressed in lingerie in his work locker for others to see, and had a history of exposing the City to
26 liability of sexual harassment. Likewise, certainly Ms. Lindell was not unreasonable in believing that Conrad was
acting retaliatorily when, for example, he told her he wanted to fire Sterbank for writing the October 2007 memo
alleging potential violations of the law, including Title VII and the WLAD.
27
The only incident complained of in Breeden consisted of a male supervisor reviewing a job applicant's
psychological evaluation in the presence of one male and one female employee who were also participating in the
review. The supervisor read aloud that the applicant had once commented to a coworker, “I hear making love to
(206) 343-2700
1 Lindell and Ms. Reed to reasonably believe that the City was both tolerating a hostile work
2 environment and unlawfully retaliating against those employees who opposed such conduct.
3 Simply put, given her numerous acts of opposition to conduct that was clearly actionable under
4 both Title VII and WLAD, it is clear that a reasonable jury could find that Lindell engaged in
5 protected activity. See e.g., Renz v. Spokane Eye Clinic, P.S., 114 Wash.App. 611, 620-621 (2002).
6 2. Lindell Suffered Adverse Employment Actions: It is undisputed that Lindell was
7 terminated by Defendants in April 2008. As discussed above, she was also slandered, threatened
8 with bar complaints, and sued for making “false statements.” Dkt. 14; Exhs. PP, OOO; Knight
9 28:6-13 (Ex. SSS). Certainly, such conduct constitutes adverse employment actions. Burlington v.
10 White, 548 U.S. 53, 52 (2006)(actions are “adverse” if they are “harmful to the point that they could
11 well dissuade a reasonable worker from making or supporting a charge of discrimination”).
12 3. Causation Exists: To establish causation, a plaintiff only needs to show that
13 retaliation was one of the motivating factors behind the adverse action. Steagall v Citadel
14 Broadcasting Co., 350 F.3d 1061, 1068 (9th Cir. 2003); Kahn, 90 Wn. App. at 128. This can be
15 accomplished through either direct or circumstantial evidence. Washington courts have held that an
16 employee establishes the causation element merely by showing that the employee participated in a
17 protected activity, that the employer had knowledge of the activity, and that the employee suffered
18 an adverse employment action. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46 (1991),
19 Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481 (2004). This is because ordinarily an employee
20 is forced to establish the prima facie case “by circumstantial evidence, since the employer is not apt
21 to announce retaliation as his motive.” Wilmot, 118 Wn.2d at 69. Because it is clear Ms. Lindell can
22 prove these elements, as discussed above, she can easily establish causation under Wilmot.
23 Furthermore, proximity in time between the protected activity and the employment action
24 also supports an assertion of retaliatory motive. Francom v. Costco Wholesale Corp., 98 Wn. App.
25 845 (2000); Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003). Specifically, “when adverse
26
you is like making love to the Grand Canyon,” looked at the female employee and stated, “‘I don't know what that
means.’ ” The male employee responded, “‘Well, I'll tell you later,’ ” and both men chuckled. Id. at 269-70.

(206) 343-2700
1 employment decisions are taken within a reasonable period of time after complaints of
2 discrimination have been made, retaliatory intent may be inferred.” Passantino, 212 F. 3d at 507;
3 Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987). Indeed, six months between a complaint and
4 firing will suffice to defeat summary judgment. Green v. FedEx Kinko’s., Inc. 2007 U.S. App.
5 LEXIS 23849 (9th Cir. 2007); Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1996).
6 Here, within two weeks of Investigator Reed providing her findings – including her finding
7 that “there are at least three other staff members at risk of being retaliated against by the City
8 Manager” – the City ignored her warning, retaliatorily notifying Lindell that she must “move on.”
9 Then, within months of Ms. Lindell retaining counsel and sending the City a letter alleging
10 retaliation, referred to by Defendant Conrad as the “letter of retaliation,” Defendants fired her
11 without a due process or Loudermill hearing. LL Decl. Admitting liability, Conrad has since
12 testified that the retaliation letter “validated [his] previous suspicion that the relationship between
13 the City and Ms. Lindell was irreparable,” thus necessitating her termination. Conrad Dep. 312:1-
14 314:1 (Ex. RRR). The City has also represented to this Court that the [Reed] Investigation
15 “ultimately led to [Lindell’s] discharge,” by “revealing serious misconduct.” Dkt. 120, p. 5.
16 Finally, because evidence of the employer’s discriminatory attitude in general is relevant
17 and admissible to prove discrimination and retaliation, Sterbank and Mayer being pushed out of the
18 City further evidences causation. Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995)( “evidence of prior
19 acts of discrimination is relevant to an employer’s motive in discharging a plaintiff, even where this
20 evidence is not extensive enough to establish discriminatory animus by itself.”); USPS Bd. of Gov.
21 v. Aikens, 460 U.S. 711, 713-16 (1983).
22 B. A Reasonable Jury Can Find That Defendants Discriminated Against and Harassed
Ms. Lindell in Violation of Title VII and WLAD.
23
Proving intentional discrimination can be difficult because “[t]here will seldom be
24
'eyewitness' testimony as to the employer's mental processes.” Id. at 716. Thus, courts have
25
repeatedly stressed that circumstantial, indirect and inferential evidence will suffice to discharge the
26 plaintiff’s burden. Id. Because Ms. Lindell has presented evidence establishing a prima facie case
of discrimination and has demonstrated that Defendants’ rationale for her termination was

(206) 343-2700
1 pretextual, a reasonable jury can find that Defendants intentionally discriminated against her.
2 Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000).
3 To establish the prima facie case of discriminatory discharge, 28 Ms. Lindell must show that
4 (1) she was a member of a protected class; (2) was qualified for her position; and (3) suffered an
5 adverse employment action. Morgan v. AMTRAK, 232 F.3d 1008 (9th Cir. 2000). In the Ninth
6 Circuit “[t]he burden of establishing a prima facie case of disparate treatment is not onerous,” and
7 “[a]t the summary judgment stage, the requisite degree of proof . . . does not even need to rise to the
8 level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
9 1994). Thus, the “amount of evidence that must be produced . . . is very little.” Id.
10 Here, Ms. Lindell’s evidence is more than sufficient to support a jury finding that she was
11 discriminated against on the basis of her gender. First, it is undisputed she is a member of a
12 protected class (female). Second, a reasonable jury can certainly find that Ms. Lindell was
13 performing satisfactory. Indeed, prior to the Reed Investigation, she had never received any rating
14 less than “outstanding” or been subject to any discipline during eight years of service. Exhs. C-F.
15 City witnesses also cannot dispute that Ms. Lindell was qualified. Knight Int. 1, 2 (Ex. DD) (“Until
16 this most recent issue has come up, Knight has always admired Lindell,” “Lindell is a fabulous
17
attorney and excellent boss”); Conrad Int. 6 (Ex. FF) (In November 2007, just a month before
18
Lindell was notified she needed to move on, Conrad told Reed that if he was not City Manager “the
19
Council would likely appoint Lindell to succeed him”). Certainly, Lindell was qualified for her
position. Third, as already discussed above, Lindell suffered adverse employment actions,
20
including being terminated. As such, Plaintiff can easily establish a prima facie case.
21
A reasonable jury can also find that Defendants’ rationale for Ms. Lindell’s termination was
22
pretextual. See Chuang, 225 F.3d at 1127 (“a plaintiff can prove pretext in two ways: (1) indirectly,
23
28
24 Defendants allege that Lindell does not allege that her termination was based on her gender. Dkt. 271, fn. 17.
However, her complaint alleges discriminatory discharge. See e.g. Dkt. 13-2, ¶¶ 36-40 (“with discriminatory
25 motive, Defendants conspired to terminate Ms. Lindell’s employment with Defendant.”); ¶ 86 (“the effect of the
practices complained of in the above paragraphs [which alleged “discrimination” in violation of Title VII] has
26 deprived Ms. Lindell of equal employment opportunities and otherwise adversely affected her status as an
employee because of her gender and protected activity”). Moreover, she testified to being discriminatorily
terminated. Lindell at 100:12-25 (when asked how she was treated differently than male coworkers, Lindell testified
“Well, one example would be that of the three employees that complained about Rich Conrad's conduct, and that it
violated the city's sexual harassment, and potentially federal and state law, the two males were allowed to
gracefully move on . . . I was summarily fired.”).
(206) 343-2700
1 by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is
2 internally inconsistent or otherwise not believable, or (2) by directly showing that unlawful
3 discrimination more likely motivated the employer. These two approaches are not exclusive”);
4 Reeves, 530 U.S. at 147 (“the trier of fact can reasonably infer from the falsity of the explanation
5 that the employer is dissembling to cover up a discriminatory purpose”).
6 In this case, Defendants’ purported reasons for terminating Ms. Lindell – namely, that
7 Directors would not work with her, that she made “false” statements,29 and had “orchestrated
8 events for her own self interest” – can be rejected as pretextual. Ex. PPP. Indeed, given the facts, a
9 reasonable jury can find that by opposing violations of anti-harassment laws and providing truthful
10 testimony to Reed during the subsequent investigation (which Conrad initiated), Ms. Lindell was
11 acting in the best interest of the City. A reasonable jury can also find that the alleged two “false
12 statements” made by Lindell were either true or fabricated by Defendants.30Finally, a reasonable
13 jury can find that not only is it untrue that other Directors would not work with Ms. Lindell
14 (Boettcher 59:2-61:6; 75:8-25 (Ex. XXX); Holmes 258:13-259:16 (Ex. VVV); Ex. EEE; Mayer
15 Decl. (Ex. TTT)), but that the Directors who no longer wanted to work with Ms. Lindell
16 (presumably Conrad, Knight, and Segle) were solely motivated by a retaliatory animus.31
17
18
29
The only alleged “false statements” Defendants have identified are (1) that “plaintiff knowingly and maliciously
19 made the false claim that City Human Director Kryss Segle ‘flashed’ a City police officer – i.e., showed him her
genitals” and (2) that plaintiff “made the false claim that Ms. Segle had a sexual relationship with the Chief of the
20 Mercer Island Police Department.” Exh. PPP.
30
Defendants’ termination of Lindell for reporting the same information that at least four City employees relayed to
21 Reed, including Knight and Conrad, is further evidence that supports a finding of discrimination. See e.g.,Winarto
v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1297 (9th Cir. 2001)(different treatment of
22 similarly situated employees constitutes evidence to support a finding of discrimination).
31
A reasonable jury can also find that Defendants subjected Lindell to a hostile work environment. Vasquez v.
23 County of LA, 349 F.3d 634 (9th Cir. 2003). Whether a workplace is objectively hostile is viewed from the
perspective of a reasonable woman, Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991), and the offensive conduct
24 need not be directed towards the plaintiff. See e.g. McGinest, 360 F.3d at 1117 (“if . . . hostility pervades a
workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the
25 plaintiff.”); Heyne, 69 F.3d at 1480; Jones v. Rabanco, 439 F. Supp. 2d 1149 (W.D. Wash. 2006)(“Plaintiff need
not be present and a racial or ageist comment need not be aimed at him in order to be relevant to the totality of the
26 circumstances in a hostile work environment inquiry.”). Here, construing all facts and inferences in Lindell’s favor,
as is required, it is clear that a reasonable jury could find that a reasonable woman would be offended by among
other things, the HR Director joking about revealing her “vagina” to a police detective, including bringing in
“granny pants underwear and the hair clip as part of a joke,” and comparing Lindell to a “very hormonal,”
“boneless,” and “enormously endowed bustline[d]” rubber chicken. PM Decl (Ex. TT), Ex. QQ, LL Decl.

(206) 343-2700
1 C. A Reasonable Jury Can Find that Defendants Violated Ms. Lindell’s Constitutional
Rights in Violation of 42 U.S.C. §§ 198332.
2
Title 42 U. S. C. § 1983 confers a private federal right of action for damages and injunctive
3
relief against state actors who deprive any citizen or person of “rights, privileges, or immunities
4
secured by the Constitution and laws.” Monroe v. Pape, 365 U.S. 167 (1961). To state a claim for
5
relief in an action brought under § 1983, a plaintiff must establish that he was deprived of a right
6
secured by the Constitution or laws of the United States, and that the alleged deprivation was
7
committed under color of state law. See Azer v. Connell, 306 F.3d 930, 935 (9th Cir. 2002).33
8
1. Equal Protection Claims Under § 1983: Title VII framework applies to both
9
discrimination34 and retaliation35 claims under 42 U.S.C. § 1983. Gairola v. Commonwealth of VA
10
Dep't of General Services, 753 F.2d 1281, 1285 (4th Cir.1985) (“[u]nder Title VII and . . . § 1983,
11
the elements of the required prima facie case are the same.”). Indeed, the same standards are used
12
to prove both claims, and facts sufficient to give rise to one are sufficient to give rise to the other.
13
Lowe v. City of Monrovia , 775 F.2d 998, 1010 (9th Cir.1985). Thus, “a plaintiff who establishes a
14
triable issue regarding intentional discrimination under Title VII [is] therefore entitled to proceed
15
with a § 1983 equal protection claim.” Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465,
16
472 (9th Cir. 1991)(citing Lowe,, 775 F.2d at 1011).36
17
Here, as a reasonable jury can find that Ms. Lindell established her retaliation and
18
discrimination claims under Title VII, as discussed supra §§ II.A-B, this Court must deny
19
32
Ms. Lindell alleged violations of § 1983 by Conrad, Pearman and Jahncke, but not Corder. Dkt. 1.
20 33
Defendants do not dispute that they were acting under color of state law, and cannot, as their actions were clearly
taken in the performance of their official duties; Conrad was acting under color of state law when he used his power
21 as City Manager to terminate Lindell; and Pearman and Jahncke were acting under the color of state law when they
conducted their “cabinet” investigation and advised Lindell that she should move on as a result of their “discussions
22 with the Council at large.” Cairns at 182:19-184:9 (testifying that Council was “responsible for the running of the
City” and was “authorized” to conduct investigation”). US v. Classic, 313 U.S. 299, 326 (1941) (“Misuse of power,
23 possessed by virtue of state law and possible only because the wrongdoer is clothed with the authority of state law,
is action taken ‘under the color’ of state law.”); Atkins, 487 U.S. at 49-50; Carlos, 123 F.3d at 61 (town board
24 members acted under color of state law when they hired a consultant to review the police force).
34
Title VII framework is fully applicable to discrimination claims under § 1983. St. Mary's Honor Ctr. v. Hicks,
25 509 U.S. 502 (1993); Hudson v. Norris, 227 F.3d 1047 (8th Cir.2000).
35
CBOCS West, Inc. v. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)( retaliation is
26 actionable under section 1983.”). While it appears that Defendants did not move on Ms. Lindell’s retaliation claims
under §§1983, which were clearly plead by Ms. Lindell (Dkt. 13-1, ¶¶53, 55, 62), because Defendants moved to
dismiss all of Ms. Lindell’s “constitutional claims,” out of the exercise of caution, she is briefing this issue.
36
“Title VII does not preempt an action under section 1983 for a violation of the fourteenth amendment.” Roberts v.
College of the Desert, 870 F.2d 1411, 1415 (9th Cir. 1988)

(206) 343-2700
1 Defendants’ motion for summary judgment on her equal protection claims under § 1983. See e.g.,
2 Ramirez v. Kroonen , 44 Fed.Appx. 212 (9th Cir. 2002)(holding that because plaintiff established a
3 triable issue of fact under Title VII, he also did so under § 1983.).
4 2. Due Process Claims: Governmental employees may have a property interest in
5 continued employment, in which case they must be afforded due process before being discharged.
6 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1986). While public employment alone does
7 not create constitutionally protected property interests, protected property interests can arise from
8 express or implied contracts for continued employment, rules or mutually explicit understandings,
9 or employer policies or procedures. See e.g., Hoflin v. City of Ocean Shores, 63 Wash.App. 422,
10 424 (1991)(collecting cases and holding that city’s ordinance was sufficient to raise a due process
11 property interest); rev’d on other grounds; Perry v. Sindermann, 408 U.S. 593 (1972); Ritter v.
12 Board of Comm'rs, 96 Wash.2d 503 (1981). Here, by express policy, the City of Mercer Island
13 afforded its employees a Loudermill hearing:
14 Employees who are facing a disciplinary termination will be given a pre-disciplinary

hearing, sometimes referred to as the Loudermill Hearing . . . During the course of the
15 hearing, the employee is given an opportunity to present any information that he/she wants
management to consider before taking disciplinary action. Ex. FFFF (emphasis added).
16
As such, Ms. Lindell had a property interest in continued employment. Hoflin, 63
17
Wash.App. at 424. Furthermore, a liberty interest is also implicated when a public employee is
18
charged with an allegation that impairs a reputation for honesty or morality. Jones v. LA
19 Community College Dist., 702 F.2d 203, 206 (9th Cir. 1983). Given that Defendants fired Ms.
20 Lindell for “dishonesty,” with City Manager Conrad informing the public that “Londi has lost the
21 confidence of nearly all of her colleagues, the City Council and myself,” due process protections
22 apply to this liberty interest as well. Ex. MMM.37
23 A reasonable jury can also find that Ms. Lindell’s right to due process was violated. “For a
24 public employee with a property interest in continued employment, due process includes ‘a pre-
25
37
26 It is absolutely untrue that Lindell can “produce no evidence showing that the City made any potentially harmful
(let alone defamatory) statements outside this litigation.” For example, in May 2008, the City provided the Mercer
Island Reporter with highly disputed, defamatory information regarding Lindell. Ex. ZZ, AAA. Certainly, a
reasonable jury could find that Lindell’s termination, coupled with the public release of documents labeling her
“malicious,” and stating that she “lied” would adversely affect her opportunities for future employment. Such a
stigma entitles her to due process protections. Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773 (9th Cir.1982).
(206) 343-2700
1 termination opportunity to respond, coupled with post-termination administrative procedures.’”
2 Silberstein v. City of Dayton, 440 F.3d 306, 315 (6th Cir. 2006). The “root requirement” of the Due
3 Process Clause requires that “an individual be given the opportunity for a hearing before he is
4 deprived of any significant property interest.” Id. (emphasis in original). Moreover, such an
5 opportunity must be “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424
6 U.S. 319 (1976). In so holding, the Supreme Court recognized the “severity of depriving a person
7 of the means of livelihood” and that “[w]hile a fired worker may find employment elsewhere,
8 doing so will take some time and is likely to be burdened by the questionable circumstances under
9 which he left his previous job.” Loudermill, 470 U.S. at 543.
10
Here, no such opportunity was provided. Rather, the evidence shows that Defendants fired
11
Ms. Lindell before giving her any opportunity for a meaningful hearing. Defendants notified Ms.
12
Lindell of her termination on Wednesday, April 9, 2008, stating that the effective date of her
termination would be Monday, April 14. (Ex. III). Notably, however, she was on vacation at the
13
time, and would not return until April 14, a fact Defendants were well aware of. Ex. JJJ.
14
Moreover, while the “Termination Letter” stated Lindell’s termination would be effective on April
15
14, in actuality it was effective immediately, with Conrad notifying all City employees, Directors
16
and councilmembers by email on April 11 and 12 that Lindell had been fired. Ex. KKK; Ex. NNN.
17
Conrad’s draft press release confirms that Defendants fired Ms. Lindell before giving her any
18
opportunity to for a hearing, writing: “Londi Lindell was relieved of her duties as Mercer Island
19
Deputy City Manager on April 9 (?), 2008 following an extensive process of deliberation.” Ex.
20
LLL. Given these facts, a reasonable jury can find that Defendants fired Lindell without giving her
21
any opportunity to respond. See e.g. Brady v. Gebbie, 859 F.2d 1543, 1555 (9th Cir. 1988)(“ jury
22
could also reasonably infer from the scheduling of the meeting just one week after [plaintiff]
23
received the letter of proposed termination . . . that the sequence of events rendered the [meeting]
24
meaningless as a pre-termination opportunity to respond.”).
25
3. First Amendment Claims: “It is well settled that the state may not abuse its
26
position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy
as citizens to comment on matters of public interest.’ ” Eng v. Cooley, 552 F.3d 1062, 1070 (9th

(206) 343-2700
1 Cir. 2009). Courts employ a five-step inquiry to determine whether a public employee has alleged a
2 violation of her First Amendment rights as a result of government retaliation for his speech. Id. 38
3 Here, Lindell can establish all five factors. First, there is no question that Lindell’s speech
4 reporting and opposing discrimination and retaliation is a matter of public concern. Alpha Energy
5 Savers, Inc. v. Hansen, 381 F.3d 917, 925 -927 (9th Cir. 2004) (“discrimination by a governmental
6 employer-was unquestionably a matter of public concern”). Second, as Lindell did not have duty to
7 make the speech in question, a reasonable jury can find that her speech was not part of her official
8 duties as Deputy City Manager. Ex. H.39 Third, given that Defendants have expressly stated that
9 they fired her for statements she said during the investigation (Dkt. 271:12), a reasonable jury can
10 easily find that Lindell’s protected speech was a motivating factor in her termination. Fourth and
11 Fifth; Finally, the last two elements are the City’s to prove, Eng, 552 F.3d at 1070, and the City has
12 failed to even address, let alone establish them. Clearly, however, a reasonable jury can find that
13 wanting to conceal the City’s hostile and retaliatory work environment is not a “legitimate
14 administrative interest” that “outweighs” Lindell’s 1st Amendment rights. Likewise, given that Ms.
15 Lindell was a top performer and it was only after she opposed unlawful conduct that she was
16 terminated, a jury can find that Defendants would not have fired her absent her protected speech.
17 D. Individually Named Defendants Will Be Liable Under §§ 1983 and the WLAD.
18 A person acting under color of state law will be individually liable under section 1983 if he
19 violates an individual’s federal constitutional or statutory rights. Jackson v. City of Bremerton, 268
20 F.3d 646, 650 (9th Cir. 2001). A person deprives another of a constitutional right, where that person
21 “does an affirmative act, participates in another's affirmative acts, or omits to perform an act which
22
38
The five factors are: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke
23 as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a motivating factor in the
adverse employment action; (4) whether the state had an adequate justification for treating the employee differently
24 from other members of the general public; and (5) whether the state would have taken the adverse employment
action even absent the protected speech. Here, Ms. Lindell has satisfied all five elements. Eng, 552 F.3d at 1070.
39
25 Statements are made in the speaker's capacity as citizen if the speaker ‘had no official duty’ to make the
questioned statements . . . or if the speech was not the product of ‘perform[ing] the tasks [the employee] was paid
26 to perform.’” Posey, 546 F.3d at 1127-9. This is a mixed question of fact and law. Id. See Marable v. Nitchman,
511 F.3d 924 (9th Cir.2007)(chief engineer had no official duty to ensure supervisors were refraining from alleged
misconduct); Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) (although prison guard's complaints to correctional
facilities’ officials were pursuant to official policies and part of the guard's official duties, the guard's complaints to
other individuals, including elected legislators, were not); Clairmont v. Sound Mental Health, 2011 WL 149371 (9th
Cir. 2011) (holding that domestic violence counselor’s testimony was not part of his official duties).
(206) 343-2700
1 [that person] is legally required to do that causes the deprivation of which complaint is made.”
2 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Moreover, personal participation is not the
3 only predicate for section 1983 liability. Anyone who “causes” any citizen to be subjected to a
4 constitutional deprivation is also liable. Indeed, the “requisite causal connection can be established
5 not only by some kind of direct personal participation in the deprivation, but also by setting in
6 motion a series of acts by others which the actor knows or reasonably should know would cause
7 others to inflict the constitutional injury.” Id. at 743-44 (emphasis added).
8 Here, the evidence shows that Conrad, Jahncke, and Pearman all participated in and set
9 into motion the conduct that resulted in the deprivation of Ms. Lindell’s rights under § 1983.
10 Indeed, it is undisputed that Conrad made the ultimate decision to terminate Ms. Lindell’s
11 employment, and certainly for the reasons discussed above, a reasonable jury can find that he did so
12 with discriminatory and retaliatory animus. Likewise, Pearman and Jahncke conducted their own
13 investigation, refocusing the inquiry onto whether Ms. Lindell engaged in a “coup,” their findings
14 allegedly forming the basis for her termination, with the City Council even notifying Ms. Lindell
15 that she should “look outside for future employment” prior to her official termination. Cairns
16 145:15-152:10 (Ex. WWW); 182:19-184:9 (Ex. AAAA)(testifying that the Council was “responsible
17 for the running of the City” and had “legal authorization” to conduct its investigation”). Thus, given
18 that all three individuals were directly involved the decision to retaliatorily terminate Ms. Lindell’s
19 employment, personal liability will attach.
20 Individually named Defendants Conrad, Corder, Pearman, and Jahncke will also be
21 personally liable under the WLAD. Under the WLAD, “any person acting in the interest of an
22
employer, directly or indirectly” is liable for an employer’s unlawful actions. RCW 49.60.010;
23
RCW 49.60.220(“[i]t is an unfair practice for any person to aid, abet, encourage, or incite the
24
commission of any unfair practice, or to attempt to obstruct or prevent any other person from
complying with the provisions of this chapter ”); See Brown v. Scott Paper Worldwide Co., 43
25
Wn.2d 349, 361 (2001)(the Court held that “[t]he plain meaning of RCW 49.60.040(3), by its very
26
terms, encompasses individual supervisors and managers who discriminate in employment” and

(206) 343-2700
1 noted that RCW 49.60.220 “establishes that the Legislature intended to reach individual
2 wrongdoers in the workplace, not just the employers themselves.” ).
3 Thus, under Brown, whenever a supervisor’s conduct violates the WLAD or an employee
4 “aids, abets, encourages” unlawful practices under RCW 49.60.220, he can be subject to individual
5 liability. 143 Wn.2d at 349. Here, Conrad fired Lindell; Pearman and Jahncke conducted an
6 investigation on behalf of the City Counsel which resulted in them recommending Ms. Lindell’s
7 termination and actually notifying her she should move on; and Corder heavily lobbied the City to
8 fire Ms. Lindell (Ex. ZZ, AAA). Because a reasonable jury can find that Ms. Lindell’s termination
9 was retaliatory and discriminatory, all four individual Defendants will be personally liable. 40
E. A Jury Is Entitled To Award Ms. Lindell Punitive Damages Under § 1983.
10
Punitive damages are expressly available “if the complaining party demonstrates that the
11
respondent engaged in a discriminatory practice or discriminatory practices with malice or with
12
reckless indifference to the federally protected rights of an aggrieved individual.” In Kolstad v.
13
ADA, 527 U.S. 526, 535 (1999), the U.S. Supreme concluded that:
14
While egregious misconduct is evidence of the requisite mental state. …Sec. 1981a does
15 not limit plaintiffs to this form of evidence, and the section does not require a showing of
egregious or outrageous discrimination independent of the employer’s state of mind.41
16
Accordingly, the Supreme Court rejected the requirement of “egregious” conduct by an
17
employer before punitive damages could be available. Id. at 534-35. Instead, the Court stated that
18 an employer may be liable for punitive damages in any case where it “discriminates in the face of a
19
20
21 40
Defendants did not argue qualified immunity in their Motion, and therefore such arguments should not be
considered. See e.g., Narducci v. Moore, 572 F.3d 313, 323-24 (7th Cir. 2009) (holding that the individual
22 defendants had failed to raise a qualified immunity defense to Title III claims at summary judgment, and therefore
the district court properly refused to entertain the issue at summary judgment). Notably, in Narducci, the individual
23 defendants had raised qualified immunity as a defense to a 1983 claim in that same motion for summary judgment,
but had failed to raise it with respect to the Title III claims until their reply brief. The Court nonetheless held such
24 arguments were waived as to Title III claims. As such, Defendants have waived such arguments for purposes of
summary judgment and should not be permitted to argue it in their Reply. Buffington v. Baltimore Cty, Md., 913
25 F.2d 113 (4th Cir. 1990)(holding that individual officers had failed to raise qualified immunity in a motion for
summary judgment when they failed to argue immunity until their reply brief); Arpin v. Santa Clara Valley Transp.,
26 261 F. 3d 912, 919 (9th Cir. 2001)(“issues which are not specifically and distinctly argued and raised in a party's
opening brief are waived.”). To the extent the Court considers such arguments, Plaintiff requests an opportunity to
formally respond, as it is her position that Defendants are not entitled to qualified immunity as violating Lindell’s
right to be free from unlawful discrimination and retaliation is a “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Lowe v. Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985).
41
Kolstad’s analysis applies to §1983 claims. Schall v. Vazquez, 322 F.Supp.2d 594, 602 (E.D.Penn.2004).
(206) 343-2700
1 perceived risk that its actions will violate federal law.” Id. at 536. (holding that egregious behavior
2 provides “one means” of satisfying plaintiff's burden of proof for punitive damages).
3 “Thus, in general, intentional discrimination is enough to establish punitive damages
4 liability.” Passantino, 212 F.3d at 515; Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299, 1303 (9th
5 Cir. 1998)(under § 1983 “once a plaintiff has proven an intentional civil rights violation, punitive
6 damages may be awarded at the jury’s discretion.”); Smith v. Wade, 461 U.S. 30, 56 (1983)(
7 rejecting the argument that the threshold for punitives must be higher than that for compensatory
8 damages). This is because “intentional discrimination is a different kind of harm, a serious affront
9 to personal liberty,” and is always “reprehensible.” Zhang v. American Gem Seafoods, 339 F.3d
10 1020, 1043 (9th Cir. 2004) cert. denied, 541 U.S. 902 (2004). Moreover, because “[r]etaliation
11 against a person because that person has complained of sex discrimination is another form of
12 intentional sex discrimination,” and “is, by definition, an intentional act,” intentionally retaliation
13 also warrants punitive damages. Gomez-Perez v. Potter, 553 U.S. 474, 480-481 (2008).
14 Here, considering the evidence in the light most favorable to Ms. Lindell, a reasonable jury
15 could find that Defendants intentionally discriminated and retaliated against Lindell in the face of a
16 perceived risk that its actions will violate federal law when they fired her despite being warned that
17 doing so was retaliatory by Investigator Reed, thus warranting punitive damages.
18 Finally, a reasonable jury can find that Defendants violated OPMA. 42
19 For the foregoing reason, Defendants’ Motion should be denied.43
20
21 42
The OPMA requires that all “meetings” of a “governing body” be open to the public unless expressly exempt.
RCW 42.30.030. An executive session outside of public view may only be held for the limited statutory purposes
22 set forth in RCW 42.30.110(1) but no final vote or action can occur in an executive session. Miller v. City of
Tacoma, 138 Wn.2d 318, 324 (1999). An “action” taken by a governing body can constitute final action where the
23 members of the governing body arrive at a consensus position or agree to a collective positive or negative decision;
a final action does not always require a formal vote. Eugster v. City of Spokane, 110 Wn. App. 212, 225 (2002).
24 “Thus, a consensus on a position to be voted on at a later council meeting would qualify as a collective position and
a ‘final action.’” Id. Here, the City violated the OPMA when, amongst other things, the Council reached a
25 consensus (and thus took final action) that Lindell and Sterbank needed to start looking outside the City for future
employment on December 17, essentially terminating their employment at the City. Cairns at 148:9-150:3.
43
26 Moreover, Defendants should be precluded from raising any issues, arguments, or affirmative defenses in their
Reply that were not raised in their original Motion and this Court should decline to review any issues addressed for
the first time in Defendants’ Reply. See US v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991) (“legal issues raised for
the first time in reply briefs are waived.”); Arpin, 261 F. 3d at 919 (“issues which are not specifically and distinctly
argued and raised in a party's opening brief are waived.”).

(206) 343-2700
1 DATED this 24th day of January, 2011.
2
3
5 By: /s/ Scott C. G. Blankenship

Scott C. G. Blankenship, WSBA No. 21431
6 Nazik S. H. Youssef, WSBA No. 39762
Rick Goldsworthy, WSBA No. 40684
7
The Blankenship Law Firm, P.S.
8 1201 Third Avenue, Suite 2880
Seattle, WA 98101
9 Telephone: (206) 343-2700
Fax: (206) 343-2704
10 Email: sblankenship@blankenshiplawfirm.com
nyoussef@blankenshiplawfirm.com
11
rgoldsworthy@blankenshiplawfirm.com
12 Attorneys for Plaintiff
13
14
15
16
17
18
19
20
21
22
23
24
25
26

(206) 343-2700
1
DECLARATION OF SERVICE
2
3 The undersigned hereby declares under penalty of perjury under the laws of the State of
4 Washington that, on the below date, I mailed or caused delivery and/or electronically filed a true
5 copy of this document, which will send notification of such filing, to the following persons:
6
Stephanie R. Alexander, Esq.
7 Suzanne K. Michael, Esq.
Thomas P. Holt, Esq.
8 Michael & Alexander, PLLC
One Convention Place
9 701 Pike Street, Suite 1150
Seattle, WA 98101
10 Telephone: (206) 442-9696
Fax: (206) 442-9699
11 Email: stephanie@michaelandalexander.com
suzanne@michaelandalexander.com
12 thomas@michaelandalexander.com
13 Attorneys for Defendants
14
15
DATED this 24th day of January, 2011, at Seattle, Washington.
16
17
18
/s/ Scott C.G. Blankenship
Scott C. G. Blankenship, WSBA No. 21431
19 The Blankenship Law Firm, P.S.
1201 Third Avenue, Suite 2880
20 Seattle, WA 98101
Telephone: (206) 343-2700
21
Fax: (206) 343-2704
22
Email: sblankenship@blankenshiplawfirm.com
23
24
25
26

fa230602 DEFENDANTS’ MOTION FOR PARTIAL SUMMARY 1201 Third Avenue
(206) 343-2700

#283 - Pl's Opp. To Defs' Partial SJ

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Case 2:08-cv-01827-JLR Document 283 Filed 01/24/11 Page 1 of 27

THE BLANKENSHIP LAW FIRM, P.S.

5 an investigation into such allegations was conducted by an independent, third-party investigator

7 husband’s grievance, despite her role as HR Director. LL Decl.

23 was keeping them awake at night with worry.”8 Id.

11 investigator Marcella Reed – an experienced employment lawyer and investigator – to conduct an

14 Z; Reed at 88:10-25; 98:15-100:25 (Ex. YYY).

15 D. Defendants Begin to Conspire to Retaliate and Discriminate Against Lindell.

5 Conrad should be terminated. Reed Dep. at 72:6-73:14 (Ex. YYY).

14 The Cabinet deliberately disregarded Investigator Reed’s month of work,14 reviewing no

15 investigative interviews or materials. 15 Cairns 21:12-19 (Ex. WWW); Pearman 98:21-102:24,

21 F. Ms. Lindell Was Retaliatorily Fired Without Any Due Process.

4 retaliation in writing in February 2008. Ex. HHH.

18 II. LEGAL ANALYSIS AND ARGUMENT

6 of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000).

1 An employee’s complaint about the treatment of others is also considered a protected

9 who opposes employment practices reasonably believed to be discriminatory is protected by the

THE BLANKENSHIP LAW FIRM, P.S.

3 documented unlawful harassment and retaliation by Defendants, which was provided to

6 2. Lindell Suffered Adverse Employment Actions: It is undisputed that Lindell was

11 well dissuade a reasonable worker from making or supporting a charge of discrimination”).

12 3. Causation Exists: To establish causation, a plaintiff only needs to show that

THE BLANKENSHIP LAW FIRM, P.S.

15 “ultimately led to [Lindell’s] discharge,” by “revealing serious misconduct.” Dkt. 120, p. 5.

16 Finally, because evidence of the employer’s discriminatory attitude in general is relevant

21 v. Aikens, 460 U.S. 711, 713-16 (1983).

THE BLANKENSHIP LAW FIRM, P.S.

1 by showing that the employer’s proffered explanation is ‘unworthy of credence’ because it is

5 that the employer is dissembling to cover up a discriminatory purpose”).

12 statements” made by Lindell were either true or fabricated by Defendants.30Finally, a reasonable

THE BLANKENSHIP LAW FIRM, P.S.

THE BLANKENSHIP LAW FIRM, P.S.

4 2. Due Process Claims: Governmental employees may have a property interest in

13 afforded its employees a Loudermill hearing:

14 Employees who are facing a disciplinary termination will be given a pre-disciplinary

1 termination opportunity to respond, coupled with post-termination administrative procedures.’”

9 which he left his previous job.” Loudermill, 470 U.S. at 543.

THE BLANKENSHIP LAW FIRM, P.S.

7 others to inflict the constitutional injury.” Id. at 743-44 (emphasis added).

19 employment, personal liability will attach.

THE BLANKENSHIP LAW FIRM, P.S.

2 wrongdoers in the workplace, not just the employers themselves.” ).

3 “Thus, in general, intentional discrimination is enough to establish punitive damages

17 doing so was retaliatory by Investigator Reed, thus warranting punitive damages.

18 Finally, a reasonable jury can find that Defendants violated OPMA. 42

19 For the foregoing reason, Defendants’ Motion should be denied.43

THE BLANKENSHIP LAW FIRM, P.S.

1 DATED this 24th day of January, 2011.

5 By: /s/ Scott C. G. Blankenship

THE BLANKENSHIP LAW FIRM, P.S.

THE BLANKENSHIP LAW FIRM, P.S.

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