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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

LINDA HANCOCK, a single individual,

Plaintiff,

v.

THE STATE OF WASHINGTON; THE

WASHINGTON STATE HORSE RACING

COMMISSION; ROBERT LEICHNER,

individually and as an agent of the Washington

State Horse Racing Commission; ROBERT

LOPEZ, individually and as an agent of the

Washington State Horse Racing Commission, 

Defendants.

No. CV06-0669 MJP

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY

JUDGMENT

This matter comes before the Court on motion for summary judgment by Defendants State of

Washington, Washington State Horse Racing Commission (the “Commission”), Robert Leichner and

Robert Lopez (collectively “Defendants”). Having reviewed the record and the documents submitted

by the parties (Dk. No. 1, 7, 20, 21, 30–33, 35–45), the Court GRANTS IN PART and DENIES IN

PART Defendants’ motion. 

Background

This suit arises out of Hancock’s tenure at the Commission. Prior to this suit, Hancock

worked at the Commission for twenty years. (Hancock Decl. ¶ 1) In 2002, Defendant Robert

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ORDER - 2

Leichner became Executive Secretary of the Commission; he was previously Chief of the Washington

State Patrol (the “Patrol”). (Leichner Dep. 7:1–4, 10:6–13) Leichner appointed Defendant Robert

Lopez as Deputy Secretary; Lopez was formerly Assistant Chief of the Patrol. (Lopez Dep. 7:5–15) 

At that time, Hancock had the title of Investigator I and was responsible for monitoring all off-track

betting sites in eastern Washington. (Hancock Decl. ¶ 2) Hancock alleges that her problems began

after she asserted her seniority rights to work “Class C” horse races over co-worker Hal Behme, a

former Patrol officer. (Id. ¶ 3) Hancock received the Class C shifts, but shortly thereafter received a

dramatically different off-track betting site inspection schedule. (Id. ¶ 3–4) She alleges she was

required to inspect two sites per day and that the long driving obligations would aggravate her back

injuries. (Id. ¶ 4) She then filed multiple complaints with her union, including claims for gender bias

and discrimination. (Id. ¶ 5–6) Steve Hiatt was a union steward at that time, and his declaration

states that Hancock’s immediate supervisor Darold Weeks (another former Patrol officer) used the

new schedule to “micro-manag[e]” Hancock and “to push [her] out.” (Hiatt Decl. ¶ 6–7) Hiatt

further states that the western Washington Inspector I, Basil Frazier, was not given the same

regimented schedule to follow. (Id.)

In response to Hancock’s complaints, Leichner first appointed Weeks to investigate the

discrimination claim, even though he was the named subject, and then appointed Behme, even though

he and Hancock had just had a dispute over seniority rights. (Pulliam Decl. ¶ 2; Lopez Dep. 64:1–20;

Hancock Dep. ¶ 8) Leichner also stated that the investigation would not take place until racing season

began in the spring. (Zeeck Decl. Ex. F) Hancock then filed a complaint with the Human Rights

Commission in December 2003. (Hancock Decl. ¶ 9) Thereafter, Leichner brought in an independent

investigator, Nani McLaughlin, to conduct the inquiry off-season. (Zeeck Decl. Ex. G)

In January 2004, Hancock filed four whistleblower complaints with the State Auditor’s office

concerning improprieties by the Commission. (Hancock Decl ¶ 10; Miller Decl. ¶ 3) The

improprieties included the refusal to investigate alleged thefts at off-track betting sites, the failure to

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ORDER - 3

insure all race participants were duly licensed, the failure to monitor properly all off-track betting sites,

and an improper intervention by Leichner into the investigation of illegal drug use by one race horse. 

(Id.) Sandra Miller, the Auditor employee investigating the claims, states in her declaration that

Leichner and Gary Christensen, Chair of the Commission, acted improperly during her investigation

and that they were aware that Hancock was the whistleblower. (Miller Decl. ¶ 8–16 & Attachments 1

& 2)

During this time period, the Commission was undergoing financial problems due to the decline

in taxes generated by live horse racing in Washington. (See Motion at 3–6, 8–10 & accompanying

notes) Leichner asserts that the decision to RIF (reduction in force, i.e., to terminate) the Inspector I

positions (Hancock and Frazier) was due to this distress. (Id. at 8) Hancock points out, however,

that Leichner, his personal secretary, and Lopez received salary increases during this time. (See Resp.

at 8 & n.34–37) Further, Frazier states in his declaration that Leichner promised him the Clerk of

Scales position after the Inspector I jobs were eliminated. (Frazier Decl. ¶ 5; Hancock Decl. ¶ 11) 

After receiving notice of the RIF, Hancock filed a whistleblower retaliation complaint in July 2004. 

(Hancock Decl. ¶ 12–13)

After the Investigator I positions were eliminated, Hancock applied, and was hired, for the

Investigator II position. (Hancock Decl. ¶ 15) The decision to hire Hancock was made by the

Department of Personnel, not the Commission, and Hiatt states that Lopez tried to prevent Hancock

from being hired. (Id.; Hiatt Decl. ¶ 8) Hancock claims that due to continued poor treatment by

Defendants, she left her position in the spring of 2006. (Hancock Decl. ¶ 16–17) On May 12, 2006,

she filed suit against Defendants.

Analysis

I. Summary Judgment Standard

Summary judgment is not warranted if a material issue of fact exists for trial. Warren v. City

of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying

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1

 Because Washington courts look to federal law when analyzing discrimination and retaliation

claims, Hancock’s Washington state law claims should be considered together with her federal claims. 

See Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003) (citing Little v. Windermere

Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002); Graves v. Dep’t of Game, 76 Wn. App. 705, 887

P.2d 424, 428 (Wash. Ct. App. 1994)). 

ORDER - 4

facts are viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment will not lie if . . . the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the

initial burden to show the absence of a genuine issue concerning any material fact. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 159 (1970). Once the moving party has met its initial burden, the burden

shifts to the nonmoving party to establish the existence of an issue of fact regarding an element

essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving party cannot

rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id.

at 324. 

II. Gender Discrimination

Defendants seek summary judgment on Hancock’s claims of gender discrimination. To make

out a case of gender discrimination under Title VII,1 a plaintiff must show she is a member of a

protected class and was treated less favorably than a similarly situated non-protected employee. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Cornwell v. Electra Cent. Credit

Union, 439 F.3d 1018, 1028 (9th Cir. 2006). If plaintiff successfully presents a prima facie case, the

burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the action. 

411 U.S. at 802–03. If defendant can do so, the burden shifts back to the plaintiff, who may rebut

defendant’s proffered reason as mere pretext. Id. at 804. Once the plaintiff has made out a prima

facie case, the Ninth Circuit has set a high bar for summary judgment. See, e.g., Lindsey v. SLT L.A.,

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ORDER - 5

LLC, 447 F.3d 1138, 1148, 1153 (9th Cir. 2006) (although summary judgment may be granted when

plaintiff’s pretext evidence is “totally lacking,” in general “discrimination cases such as this one present

precisely the kinds of complex factual questions best addressed by juries”).

Hancock is female and therefore a member of a protected class. She also recounts a series of

adverse employment actions that satisfy this element. See Resp. at 12 & Hancock Decl. Most

importantly, her schedule was overhauled and her position was eliminated. Id. Defendants assert

Hancock received the same treatment as Frazier (the male Inspector I) so there was no disparate

treatment. But Hancock has presented sufficient evidence to cast doubt on this assertion, namely that:

1) Frazier was not subject to Hancock’s level of scrutiny and regimentation in scheduling, 2) he was

offered training opportunities that she was not, and 3) he was promised a new position when the

Inspector I positions were eliminated and she was not. Hancock has made out a prima facie case of

gender discrimination.

Defendants present the Commission’s financial predicament as the non-discriminatory reason

for these actions. Hancock has presented evidence, however, that Leichner and others received pay

increases during this time. Also, the evidence used to establish the prima facie case—differential

treatment of Hancock and Frazier—may likewise be used as evidence of pretext. Lindsay, 447 F.3d at

1148. Given the especially high bar to summary judgment in employment discrimination cases,

Hancock has met her burden of demonstrating genuine issues of material fact on these questions.

Defendants’ motion for summary judgment on Plaintiff’s gender discrimination claims is

DENIED.

III. Retaliation

Defendants seek summary judgment on Hancock’s retaliation claims. To make out a prima

facie case of retaliation under Title VII, a plaintiff must demonstrate: 1) she engaged in a protected

activity; 2) she suffered an adverse employment action; and 3) there was a causal link between her

activity and the employment decision. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065–66 (9th

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ORDER - 6

Cir. 2003). If a plaintiff is able to assert a prima facie retaliation claim, the same burden shifting

scheme articulated in McDonnell Douglas applies: defendant must “articulate a legitimate,

non-discriminatory reason for the adverse employment action.” Manatt v. Bank of Am., N.A., 339

F.3d 792, 800 (9th Cir. 2003). If defendant articulates such a reason, plaintiff “bears the ultimate

burden of demonstrating that the reason was merely a pretext for a discriminatory motive.” Stegall,

350 F.3d at 1066.

Hancock filed a gender discrimination grievance with her union in 2003 and filed a complaint

with the Human Rights Commission in January 2004. The protected activity prong is easily satisfied. 

To satisfy the adverse action requirement, an employee must demonstrate “that a reasonable

employee would have found the challenged action materially adverse, which in this context means it

well might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006). The

Supreme Court noted that “the significance of any given act of retaliation will often depend upon the

particular circumstances. Context matters.” Id. at 2416. Hancock cites a variety of adverse actions

she encountered, see Resp. at 12, most of which satisfy this element under White’s liberal

interpretation.

Plaintiffs in retaliation cases need only show that retaliation was one of the motivating factors

behind the adverse action, and the causal link may be shown by either direct or circumstantial

evidence. See Stegall, 350 F.3d at 1068. The Ninth Circuit has held that timing alone can satisfy the

causal link requirement. Id. at 1069 (“Temporal proximity between protected activity and an adverse

employment action can by itself constitute sufficient circumstantial evidence of retaliation in some

cases.”). The timeline in this case constitutes circumstantial evidence of a causal link. Furthermore,

the declarations presented by Hancock, particularly Miller’s declaration about Leichner’s reaction to

the investigation, presents further evidence linking the two events. Hancock has shown a sufficient

causal link to survive summary judgment.

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ORDER - 7

To the extent that Defendants offer the Commission’s financial cutbacks as a legitimate reason

for these action, Hancock’s claims of pretext rebut their assertions for the reasons stated in Part II.

Defendants’ motion for summary judgment on Plaintiff’s retaliation claims is DENIED.

IV. First Amendment / § 1983

Hancock alleges Defendants retaliated against her for reporting the Commission’s wrongdoing

to the State Auditor’s office. She claims that this retaliation violated her First Amendment rights and

is actionable under § 1983. Defendants seek summary judgment on this issue, asserting that

Hancock’s First Amendment claim fails as a matter of law.

The elements required to establish a First Amendment claim against a public employer are

similar to retaliation claims: 1) the employee engaged in constitutionally protected speech; 2) the

employer took adverse employment action against the employee; and 3) the employee’s speech was a

“substantial or motivating” factor in the adverse action. Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir.

2006). 

To determine whether an employee’s speech is protected, the court first asks whether the

employee spoke as a citizen on a matter of public concern. Garcetti v. Ceballos, 126 S.Ct. 1951, 1958

(2006). If the answer is no, there is no First Amendment claim. Id. If the answer is yes, the court

moves to the second question: whether the relevant government entity had an adequate justification

for treating the employee differently from any other member of the general public. 

 Id. Whether speech is protected is a question of law for the court. Connick v. Myers, 461 U.S. 138,

148 n.7 (1983). 

Defendants all but concede that Hancock’s whistleblower complaint to the State Auditor

concerning Commission improprieties is protected speech. See Reply at 6 n.24 (noting that Hancock’s

complaint was to an outside entity, unlike Garcetti); see also Freitag, 468 F.3d at 545 (complaints of

sexual harassment at prison to state senator and state inspector general were not pursuant to official

duties and were protected). If an employee speaks on an issue that she learns of through her

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ORDER - 8

employment, it does not mean that she is not speaking as a citizen on a matter of public concern. 

Defendants do not put forth a meaningful balancing argument, and Plaintiff correctly notes that it

would be inconsistent with their arguments that Hancock’s termination was unrelated to her

whistleblower complaints. Hancock’s speech is protected. 

As described in Parts II and III, Hancock has presented sufficient facts to go forward that she

was subject to adverse action.

Whether an employee’s speech is a “substantial or motivating” factor is a question of fact,

which the Ninth Circuit has said “normally should be left for trial.” Ulrich v. City & County of San

Francisco, 308 F.3d 968, 979 (9th Cir. 2002). Direct or circumstantial evidence can satisfy this

element, and “[g]enerally, a plaintiff need only offer ‘very little’ direct evidence of motivation to

survive summary judgment on this element.” Id. at 980. Hancock meets her burden here for the same

reasons that she satisfies the causal link prong of her retaliation claim: she presents sufficient direct

and circumstantial evidence linking her whistleblowing and adverse action to satisfy the very lenient

summary judgment standard.

Defendants’ motion for summary judgment on Plaintiff’s First Amendment claim is DENIED.

V. Constructive Discharge

Hancock did not include a separate claim for constructive discharge in her complaint, but the

parties both addressed this claim. Given the facts alleged and Rule 8(f)’s requirement of construing all

pleadings to do substantial justice, the Court holds that Hancock’s complaint gave “enough details so

as to provide defendant and the court with a fair idea of the basis of the complaint and the legal

grounds claimed for recovery,” Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462,

466 (9th Cir. 1990). The Court can reach the constructive discharge claim in this motion.

To establish a constructive discharge claim under Washington law, “the employee must show:

(1) a deliberate act by the employer that made his working conditions so intolerable that a reasonable

person would have felt compelled to resign; and (2) that he or she resigned because of the conditions

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ORDER - 9

and not for some other reason.” Washington v. Boeing Co., 105 Wn. App. at 15. A resignation is

“presumed to be voluntary, and it is incumbent upon the employee to introduce evidence to rebut that

presumption.” Sneed v. Barna, 80 Wn. App. 843, 849 (1996). The Ninth Circuit has held that the

intolerable conditions requirement is a high standard. Brooks v. City of San Mateo, 229 F.3d 917,

930 (9th Cir. 2000) (“[C]onstructive discharge occurs when the working conditions deteriorate, as a

result of discrimination, to the point that they become sufficiently extraordinary and egregious to

overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the

job to earn a livelihood and to serve his or her employer.”). Further, plaintiff must demonstrate that

the intolerable and discriminatory conditions continue up to the point when he or she quits the job. 

See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465–66 (9th Cir. 1994).

Hancock worked in the Inspector II role throughout the 2005 season, and she resigned in the

spring of 2006 before the racing season began. But the declarations and memorandum are almost

completely silent on the conditions of her employment after 2004—and completely silent on any

specific instances of workplace abuse. Defendants correctly note that it is not sufficient for Hancock

to argue that her dislike of Lopez and Leichner amount to constructive discharge. See Hancock Decl.

¶ 17 (“I did not believe I could handle another season working with Mr. Lopez”). Moreover,

Hancock expressly states that two of the reasons she left the Inspector II position were the commute

to western Washington and a decline in her health. Id. at ¶ 15–17. Hancock seeks to forestall

summary judgment by repeatedly stating that whether the conditions were intolerable is a question of

fact for the jury, but Hancock must put forth some competent evidence to support her claim. See

Sneed, 80 Wn. App. at 850. As a result of this failure, Hancock has failed to present evidence to rebut

the presumption that her resignation was voluntary.

Defendants’ motion for summary judgment on Plaintiff’s constructive discharge claim is

GRANTED. 

VI. Intentional Infliction of Emotional Distress, aka Outrage

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ORDER - 10

To establish liability for intentional infliction of emotional distress, the first element that a

plaintiff must demonstrate is that defendant engaged in “extreme and outrageous conduct.” 

Washington v. Boeing, 105 Wn. App. 1, 17 (2000). The alleged conduct must be “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id. In the few cases that

Washington courts have allowed this claim to get to a jury in the employment context, plaintiffs cited

incredibly derogatory comments from workplace supervisors. See Robel v. Roundup Corp., 148 Wn.

2d 35, 52 (2002) (citing “racial jokes and slurs” and “the C word” as cases where reasonable minds

could disagree on outrageousness). 

Even when the events of this case are viewed in the light most favorable to Hancock’s case,

she cannot meet this high burden. Failing to promptly or properly investigate Hancock’s

discrimination claim does not meet this very high standard, nor does declining to offer her training

opportunities, forcing her to travel long distances to make inspections, or terminating her employment. 

Reasonable minds therefore cannot disagree that this conduct is not so extreme and outrageousness as

to allow liability.

Defendants’ motion for summary judgment on Plaintiff’s intentional infliction of emotional

distress claim is GRANTED.

VII. Negligent Infliction of Emotional Distress

In Washington, “[a]n employee may recover damages for emotional distress in an employment

context but only if the factual basis for the claim is distinct from the factual basis for the discrimination

claim.” Haubry v. Snow, 106 Wn. App. 666, 678 (2002) (emphasis added). State courts have

dismissed negligent emotional distress claims when the alleged conduct is not distinct because such

damages are recoverable under the discrimination claim. See Bishop v. State, 77 Wn. App. 228,

234–35 (1995). Hancock asserts that the “cruel and specific manner” of Defendants’ discrimination

and retaliation allow her claim to survive. Plaintiff’s assertion has no basis in Washington law, and I

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2

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Electric, 157 Wn. 2d 215)

ORDER - 11

can see no reason to variate from the rule that negligent emotional distress claims collapse into

discrimination claims.

Defendants’ motion for summary judgment on Plaintiff’s negligent infliction of emotional

distress claim is GRANTED.

VIII. Disability Discrimination / ADA

Plaintiff’s ADA disability claim fails for several reasons. First, Washington is immune from

suit for ADA claims under the Eleventh Amendment. See Univ. of Alabama v. Garrett, 531 U.S. 356

(2001). Second, ADA claims are limited to individuals with disabilities that are permanent and

“substantially limit major life activities.” See Toyota v. Williams, 543 U.S. 184 (2002). Hancock has

not put forth any evidence to show that her neck and back pain reaches this threshold, nor that this

disability is linked to any failure to accommodate. Moreover, Hancock’s disability claim fails even if

under state law where Washington is not immune from suit and may not follow the federal definition

of disabled.2 Plaintiff asserts that the questionnaire mailed to her doctor and Lopez’s comments about

“special accommodations” is sufficient evidence to withstand summary judgment. See Resp. at 24. 

Plaintiff fails to lay out the elements of a state law disability claim or meaningfully rebut Defendants’

arguments. Such evidence is insufficient to meet her burden, and even without the legal infirmities of

Garrett and Williams, this claim would not present a genuine issue of material fact.

Defendants’ motion for summary judgment on Plaintiff’s Americans with Disabilities Act claim

and WLAD Disability claim is GRANTED.

IX. Motions to Strike

Defendants have moved to strike numerous parts of the declarations presented along with

Hancock’s Response. Many of these are trivial and/or unfounded. For instance, Defendant makes

repeated hearsay objections to material that either: 1) is not being offered in evidence to prove the

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3

 Leichner and Lopez are direct party opponents. Statements from Christensen and Weeks can

be imputed to the Commission because they were made during the existence of their employment

relationship and concerned matters within the scope of their employment.

ORDER - 12

truth of the matter asserted,” Fed. R. Evid. 801(c) (emphasis added); 2) comes from a party opponent

under FRE 801(d)(2)(D);3

 or 3) could be presented in an admissible form at trial, see Fonseca v. Sysco

Food Servs. of Ariz., 374 F.3d 840, 846 (9th Cir. 2004). Likewise, most of Defendants’ objections on

the grounds of relevance, conclusory statement, and lack of foundation can be charitably described as

tenuous. Even taking into account Defendants’ few meritorious claims (such as the double-hearsay of

Pulliam Decl. ¶ 3 & Ex. B), their objections are moot as summary judgment would still be

inappropriate as to the gender discrimination, retaliation and First Amendment claims, even if these

materials were removed from the record. 

The Clerk is directed to send copies of this order to all counsel of record. 

Dated: May ___7__, 2007.

 /s/ Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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