IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON

Transcription

1 0 MATTHEW Z. CROTTY Crotty & Son Law Firm, PLLC 0 West Riverside, Suite 0 Spokane, WA 0 Telephone: Facsimile: 0.0. MICHAEL B. LOVE Michael Love Law Firm, PLLC 0 West Riverside, Suite 0 Spokane, WA 0 Telephone: 0.. Facsimile: 0.0. Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON 0 JIN ZHU, v. Plaintiff, NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT ESD, Defendant. NO. :-cv- COMPLAINT AND DEMAND FOR TRIAL BY JURY Mr. Zhu, by and through his attorneys, now alleges: I. PARTIES AND JURISDICTION TRIAL-

2 0 0. Defendant, NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT ESD ("ESD ") is a municipal government agency located in the State of Washington. ESD is charged with, inter alia, promot[ing] communication and dialogue between and among ESD s, school districts, governmental agencies, organizations, and the general public for the purpose of enhancing programs for families and children.. One of the school districts to which ESD provides support and promotes communication with is Waterville School District, an entity encompassing the Waterville Secondary School.. Plaintiff, JIN ZHU ( Mr. Zhu ), resided in Waterville, Washington at all times relevant to this lawsuit.. All acts complained of occurred within the Eastern District of Washington.. The Federal Court for the Eastern District of Washington has personal jurisdiction over the parties and subject matter jurisdiction for the claims in this complaint pursuant to U.S.C., U.S.C., and U.S.C. (a).. Venue is proper in the Eastern District of Washington under U.S.C. (b) because the acts and omissions complained herein occurred in the District and Defendant conducts business there. TRIAL-

3 0 0. On May, 0, Mr. Zhu mailed (via certified mail, return receipt requested, tracking number ) a RCW..00 Notice of Tort Claim to ESD. ESD did not return the May, 0, certified mail receipt; however, the U.S. Post Office s records reflect the Notice of Tort Claim was delivered to ESD on May, 0. Sixty days have expired since May, 0, therefore Mr. Zhu has complied with the administrative preconditions of filing this lawsuit and the statute of limitations regarding his federal and state claims was tolled during that sixty day timeframe and the five court days following. II. INTRADISTRICT ASSIGNMENT. This action arose in Chelan County, Washington; therefore, Mr. Zhu respectfully requests that the case be assigned to the Spokane Division of the Eastern District of Washington. III. FACTS. Plaintiff re-alleges the above paragraphs. 0. Mr. Zhu worked as a secondary math teacher at Waterville Secondary School ( Waterville ) from 00 to 0.. During this time the ESD s Assistant Fiscal Director Sally Ryan also worked for Waterville School District part-time. TRIAL-

4 0 0. During Mr. Zhu s tenure at Waterville he was the subject of racial discrimination, reported that discrimination, and experienced retaliation following his report of the same.. Those events ultimately led to Mr. Zhu filing a federal lawsuit against the Waterville School District. The above-actions constitute protected activity upon which retaliation on the part of employers, of which ESD is one, is forbidden.. Ms. Ryan shared an office with Caryn Davis (Administrative Assistant to the Waterville School District Superintendent), was aware of Mr. Zhu s discrimination complaint against Waterville (and the following events), participated in the process by which Mr. Zhu s case against Waterville was ultimately resolved, and, communicated the facts, circumstances, and result of Mr. Zhu s federal lawsuit to ESD before June, 0.. Local newspaper outlets covered Mr. Zhu s March 0 settlement with Waterville.. Upon information and belief, other employees or agents of Waterville School District, ESD employees/agents, and/or citizens of Waterville (including those who sit on the ESD board of directors) communicated, before June, 0, the facts, circumstances, and/or result of Mr. Zhu s federal lawsuit to the ESD employees/agents who made decisions to not hire Mr. Zhu. TRIAL-

5 0 0. Accordingly, the ESD was, before June, 0, aware of Mr. Zhu s complaints of discrimination against Waterville, the retaliation Mr. Zhu experienced as a result of Mr. Zhu reporting the discrimination, and Mr. Zhu s federal lawsuit against Waterville.. The ESD, upon information and belief, cognizant of the risks associated with hiring an employee not afraid to enforce state and federal antidiscrimination laws, chose to hire less qualified candidates for the below-referenced positions.. On May, 0, the ESD posted a job opening for a Math- Science specialist position. 0. On May 0, 0, Mr. Zhu applied for the Math-Science Specialist position. Mr. Zhu s application reflected that he was highly qualified for the job insofar as he, without limitation, possessed at least seven years of teaching experience and had successfully taught secondary math and science.. On June, 0, Mr. Zhu interviewed for the Math-Science Specialist position. Present at the interview were four panelists: Suzanne Reister, ESD s HR Managing Director, ESD s Assistant Superintendent Cindy Duncan, ESD s Regional Math Coordinator, Mary Jane Ross, and ESD Regional Science Coordinator, Mechelle LaLanne. TRIAL-

6 0 0. Ms. Ross was well aware of Mr. Zhu s employment with Waterville. In the spring of 00, Mr. Zhu organized Waterville School District s first math team to participate in the Washington State Math Committee s Regional High School Math Contest held by the ESD in Wenatchee. Ms. Ross, then the ESD s Math Specialist, introduced herself to Mr. Zhu. In conversing with Mr. Zhu Ms. Ross noted that she recently visited China to learn about math education and expressed that American educators could learn a lot from math teachers in China.. In August 00, Mr. Zhu attended the ESD s Math/Science Partnership Program Summer Institute held at Wenatchee Valley College. Ms. Ross, then the ESD s State/Regional Math Coordinator, presented at the conference. At that conference Mr. Zhu told Ms. Ross that Waterville School District had put him on administrative leave pending investigation.. Ms. Ross also knew of Mr. Zhu s federal lawsuit against Waterville. In the summer of 0 Mr. Zhu, Mr. Zhu s wife, and their children visited Ms. Ross at the ESD s building. In her office Ms. Ross asked about Mr. Zhu s situation. Mr. Zhu told her that he was (in early July 0) restored to his job by a Statutory Hearing Officer and still had a pending federal discrimination and retaliation lawsuit against Waterville School District.. In the August 0 time frame Ms. Ross gave a presentation at a Waterville High School faculty collaboration meeting. Following the presentation TRIAL-

7 0 0 she and Mr. Zhu had a conversation regarding his workload and difficult reentry to Waterville School District.. On or about June, 0, the ESD s Human Resources Managing Director, Suzanne Reister, informed Mr. Zhu that he was the unsuccessful candidate for the Math-Science Specialist position.. Instead the ESD hired Andrew Hickman for the Math-Science Specialist position. Upon information and belief, Mr. Hickman is a Caucasian.. Mr. Hickman is not certified to teach math or science above th grade, had substantially less experience than Mr. Zhu, and, as was later discovered, misrepresented his qualifications to the interview panel in violation of Washington administrative regulations. follows:. The disparity between Mr. Zhu and Mr. Hickman s qualifications is as Criteria Zhu Qualifications Hickman Qualifications Education - ESD, in response to Mr. Degree: Bachelor of Zhu s public record request of Engineering Major: Chemical Analysis for Industry September, 0, claimed no responsive documents existed. Minors: Mathematics, Physics, and Computer Science Degree: Master s degree of Arts Major: Applied Linguistics Minors: Statistics TRIAL-

8 Criteria Zhu Qualifications Hickman Qualifications 00 Admission into Ph.D. Research in World History after receiving excellent scores in three entrance tests 0 Educational Testing Service (ETS) Praxis II Content Knowledge Tests Secondary Education Certification with sponsorship from Washington State Professional Educator Standards Board points in Mathematics Content Knowledge test. The Chief Executive Officer of ETS issued a Recognition of Excellence that acknowledges Your exceptional performance earned a score that ranks within the top % of all test takers who took this assessment in previous years. None 0 points in Physics Content Knowledge test - - a score six points higher than the high end of the average performance range -. Educational Certificate Issue Date: July, 00 Issue Date: May, 00 TRIAL-

9 0 0 Criteria Zhu Qualifications Hickman Qualifications Endorsements: Mathematics (- th grade) Physics (- th grade) Chemistry (- th grade) Middle Level Math/Science (- th grade) Endorsement: Elementary Education (K- th grade) Certificated Teacher Experience In Washington State 00 Zhu taught Elementary Summer School Zhu taught Advanced Placement Physics, Chemistry, Chemistry, and Astronomy 00 0 Zhu taught Advanced Placement Calculus, Calculus, Pre-calculus, Trigonometry, Geometry, Trigonometry, Algebra, Algebra, Intervention Math, Summer School Math, Middle School Math, Business Math, and Physics TRIAL Hickman taught th Grade Math, Math/Intervention, Science, Computer, and th Grade Science 0. On March, 0, the ESD posted a job opening for a Regional Science Refurbishment Assistant position.. On April, 0, Mr. Zhu applied for the ESD s Regional Science Refurbishment Assistant position.. On April, 0, at : AM, Mr. Zhu inquired of Ms. Reister as to when the interview for the Refurbishment Assistant position would take place.

10 0 0. On April, 0, at : AM Mr. Reister replied [w]e are currently working out details on this.. On or about April, 0, Ms. Reister informed Mr. Zhu that he was the unsuccessful candidate.. Instead the ESD hired Jessie Swide. Upon information and belief, Ms. Swide is a Caucasian and was less qualified for the position than Mr. Zhu.. Upon information and belief, no interviews took place for the Refurbishment Position.. On or about August, 0 Ms. Reister informed Mr. Zhu that the Refurbishment Assistant position was filled on a first come first served basis.. The Refurbishment Assistant job opening posting did not state that the position would be filled on a first come first served basis.. Curious as to why he did not get either job, Mr. Zhu began investigating the qualifications of the individuals who received those jobs. 0. On or about August, 0, Ms. Reister, responding to a query from Mr. Zhu as to why Mr. Zhu did not get hired for the Math-Science Specialist position wrote: You and the successful candidate both held the required and preferred degrees in education or related math/science fields as well as years of teaching mathematics and/or science. TRIAL- 0

11 0 0. On September, 0, Mr. Zhu requested, from ESD, copies of Mr. Hickman s college transcripts.. On or about October, 0, ESD, claimed that there were no documents responsive to Mr. Zhu s request.. On December, 0, ESD, in response to another query from Mr. Zhu, stated that it is [t]he practice at the North Central ESD to perform reference checks after interviews are completed.. Following extensive public record requests, Mr. Zhu discovered on or about September, 0, that Mr. Hickman received his teaching certificate on May, 00, and that Elementary Education is Mr. Hickman s only endorsement; Mr. Zhu discovered on February, 0 that Mr. Hickman s certificated teacher experience was limited to th grade math and science from 00 to 0 (including one period of th grade science from 00 to 00), and that Mr. Hickman misled the ESD interview panel during the June, 0 interview when he, inaccurately, claimed ten years of certificated teacher experience and having taught math and science above th grade.. Shortly after receiving the February, 0, communication from Yakima, Mr. Zhu reported, to ESD, that Mr. Hickman misled the ESD during the June 0 interview when Mr. Hickman inaccurately claimed ten years of certificated teacher experience and high school level teaching experience. TRIAL-

12 0 0. On or about February, 0, the ESD acknowledged Mr. Zhu s complaint, did not dispute the substance of Mr. Zhu s complaint, but instead claimed any discipline that might befall Mr. Hickman was unnecessary because Mr. Hickman was not applying for a certificated position.. Mr. Zhu s investigation revealed inconsistencies in the ESD s hiring decisions, and deviation from state law and federal law all circumstantial evidence of race discrimination which, in turn, constitutes a violation of the WLAD and U.S.C... The ESD exists to, inter alia, to assist school district management with budgeting, state reporting, accounting, risk management, funding, student information, personnel management and compliance with federal, state and local laws. As such, upon information and belief, the ESD (and/or its agents) has informed local school districts, including the Wenatchee and Bridgeport School Districts, of Mr. Zhu s protected activity which, in turn, has resulted in Mr. Zhu being passed over for selection for numerous positions in favor of less qualified Caucasian applicants. Such acts constitute blacklisting which is barred under Washington s anti-blacklisting statute RCW..00. IV. CAUSES OF ACTION TRIAL-

13 0 0 (CAUSE OF ACTION NO. VIOLATION OF U.S.C., AS AMENDED DISCRIMINATION & RETALIATION). Plaintiff re-alleges the above paragraphs. 0. Analysis of an employment discrimination claim under follows the same legal principles as those applicable in a Title VII disparate treatment case. Fonseca v. Sysco Food Servs. of Arizona, Inc., F.d 0, 0 (th Cir. 00).. To that end an individual asserting a discrimination claim must establish () he is a member of a protected class; () he was qualified for his position; () he experienced an adverse employment action; and () similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Fonseca, F.d at.. As to point (), Mr. Zhu, a Chinese immigrant, is a member of a protected race for the purpose of a, as amended under the Civil Rights Act of, claim as ESD s discriminatory acts prevented him from enjoying all benefits, terms, and conditions of an employment contract with ESD. See Manatt v. Bank of Am., NA, F.d, (th Cir.00).. As to point (), Mr. Zhu was qualified for both of the above-referenced ESD job openings. TRIAL-

14 0 0. As to point (), Mr. Zhu experienced an adverse employment action by not being hired for positions of which he was exceptionally qualified.. As to point (), the following circumstances exist that give rise to an inference of discriminatory animus.. First, the close proximity between Mr. Zhu s March 0 settlement of his lawsuit with Waterville (an event that was published in the local newspaper) and Mr. Zhu s June 0 non-hire for the Math-Science Specialist Position is circumstantial evidence of discrimination.. Second, inconsistencies give rise to an inference of discrimination. Examples of some of the inconsistencies at issue here are as follows: on August, 0, ESD informed Mr. Zhu that Mr. Hickman held the required and preferred degrees for the Math-Science Specialist job; yet, on October, 0, claimed to have no records of Mr. Hickman s education. As to the Refurbishment Assistant position, on April, 0, the ESD told Mr. Zhu that it was still working out the details on interviews for the position; but, on April, 0, informed Mr. Zhu that the Refurbishment Assistant position was filled on a first-come-first-served basis.. Third, deviation from policy gives rise to an inference of discrimination. Here when Mr. Hickman applied for the Math-Science specialist position he, as a certificated teacher, was subject to WAC --00 s professional conduct standards. And ESD, as Mr. Hickman s employer, was TRIAL-

15 0 0 required to, under the Washington OSPI s policies, initiate an investigation as to allegations of employee dishonesty. Yet although on notice of Mr. Hickman s misrepresentations (regarding his ten years of certificated teacher experience and high school teaching experience), the ESD took no action to discipline or otherwise investigate Mr. Zhu s allegations.. Fourth, the hiring of a vastly lesser qualified employee over a higher qualified employee gives rise to an inference of discrimination and Mr. Zhu was exceptionally more qualified that either successful candidate for either position. 0. To establish a U.S.C. retaliation claim, a plaintiff must prove () she engaged in a protected activity; () she suffered an adverse employment action; and () there was a causal connection between the two. Surrell v. California Water Serv. Co., F.d 0, 0 (th Cir. 00).. Here Mr. Zhu engaged in protected activity with regard to his lawsuit against Waterville, suffered an adverse employment action in not getting hired by ESD, and a causal connection exists between the protected activity and adverse action as ESD was aware of Mr. Zhu s lawsuit against Waterville and retaliated against Mr. Zhu, by not hiring him, because it did not want to hire an individual not afraid of suing his employer to enforce civil rights laws. (CAUSE OF ACTION NO. VIOLATION OF RCW.0.0() RETALIATION & RCW.0.0 DISCRIMINATION) TRIAL-

16 0 0. Plaintiff re-alleges the above paragraphs.. The WLAD s anti-retaliation statute provides, in part, that () It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.. Defendant violated the WLAD by, inter alia, refusing to hire Mr. Zhu on account of Mr. Zhu s opposing, by virtue of his lawsuit against Waterville, the race-discrimination that is forbidden by the WLAD.. The WLAD s anti-discrimination statute makes it illegal for an employer to use a prospective employee s race as a substantial factor in deciding to not hire that employee.. For the reasons set out above, Mr. Zhu s race was a substantial factor in the ESD s decision to not hire him for either position.. Defendant s violation of the WLAD caused Mr. Zhu damages in an amount to be proven at trial. (CAUSE OF ACTION NO. VIOLATION OF WASHINGTON'S BLACKLISTING STATUTE - RCW..00). Plaintiff re-alleges the above-paragraphs. TRIAL-

17 0 0. RCW..00 makes it a criminal offense to "willfully and maliciously make or issue any statement or paper that will tend to influence or prejudice the mind of any employer against the person of such person seeking employment." 0. RCW..00 allows for a civil cause of action.. Upon information and belief, ESD told other school districts within ESD, such as Bridgeport School District and Wenatchee School District, to not hire Mr. Zhu as Mr. Zhu has applied for numerous positions with both entities but has not been hired. Instead, Caucasian applicants with little-to-no teaching experience have been hired for said positions. V. PRAYER FOR RELIEF Plaintiff respectfully prays for: A. Compensation for all injury and damages suffered by Mr. Zhu including, but not limited to, both economic and non-economic damages, in the amount to be proven at trial including back pay, front pay, pre and post judgment interest, lost benefits of employment, adverse tax consequences of any award for economic damages pursuant to Chapter RCW.0 et seq., liquidated damages under both federal and Washington law for willful violations as it relates to the improper withholding of wages and benefits, exemplary damages, punitive damages, and TRIAL-

18 0 0 general damages relating to emotional distress and mental anguish damages as provided by law. B. Plaintiff s reasonable attorneys, expert fees, and costs, pursuant to U.S.C., and as otherwise provided by law under RCW..00 and.0.00(), as well as the private attorney general theory of recovery of reasonable attorney fees and costs in employment related cases. C. For such other and further relief as this Court deems just and equitable. Respectfully submitted this 0 th day of July 0. /s Matthew Crotty MATTHEW Z. CROTTY Crotty & Son Law Firm, PLLC 0 West Riverside, Suite 0 Spokane, WA 0 Telephone: /s Michael Love MICHAEL B. LOVE Michael Love Law Firm, PLLC 0 West Riverside, Suite 0 Spokane, WA 0 Telephone: 0.. Facsimile: 0.0. Attorneys for Plaintiff TRIAL-