# Zelton v. FedEx Express Corporation

> District Court, W.D. Washington · August 26, 2025

URL: https://www.frixlaw.com/law-library/cases/11127910

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** August 26, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11127910

## How later opinions describe it (automated extraction)

- finding that lack of 7 diversity on interview panel created inference of discrimination where defendant’s explanation 8 for non-diverse panels—an inability to find qualified persons of color to serve on panels—was 9 rebutted by evidence that qualified individuals existed

## Opinion text

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE
10
11 ADAM ZELTON, CASE NO. 2:23-cv-01174-TL
12 Plaintiff, ORDER ON MOTION FOR
v.
SUMMARY JUDGMENT
13
FEDEX EXPRESS CORPORATION et al.,
14
Defendant.
15

16

17 This matter is before the Court on Defendant FedEx Express Corporation’s motion for
18 summary judgment. Dkt. No. 44. Having considered Plaintiff Adam Zelton’s opposition (Dkt.
19 No. 45), Defendant’s reply (Dkt. No. 47), and the relevant record, the Court GRANTS Defendant’s
20 motion.1
21 I. BACKGROUND
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1 Neither Party requested oral argument (see Dkt. No. 44 at 1; see generally Dkt. No. 45), and the Court finds oral
24 argument unnecessary. See LCR 7(b)(4).
1 This action arises from Plaintiff’s termination from his employment with Defendant. See
2 generally Dkt. No. 34 (amended complaint). The undisputed facts, as the Court understands
3 them, follow.
4 On or about August 3, 2022, Plaintiff was hired by Defendant as a courier at the Seattle

5 FedEx Station. Dkt. No. 44-1 (Zelton Dep. Tr.) at 5–6, 15. When he was hired, he was provided
6 with a paper badge showing his name and employee identification, which was housed inside of a
7 case attached to a lanyard and intended to be worn around Plaintiff’s neck. Id. at 16. Plaintiff was
8 instructed to wear the badge at all times for security reasons. Id. at 17.
9 On the morning of September 13, 2022, Plaintiff arrived at the Seattle FedEx Station and,
10 after showing his badge to an employee outside, entered the building. Id. at 22. Once Plaintiff
11 entered the building, he was asked by a senior manager to again show his badge and instructed to
12 wear the badge, which was underneath his partially-zipped jacket, over his outermost layer. Id. at
13 22–24.
14 Plaintiff informed the manager that he would show his badge but asked to “put [his] stuff

15 down first.” Id. at 27. The senior manager informed Plaintiff that he “need[ed] to show [his
16 badge] now,” and an exchange between the two occurred. See id. Plaintiff said something to the
17 effect of “[i]s it really necessary,” and “[c]an’t you see I have the badge?” Id. at 28. The senior
18 manager then approached Plaintiff and instructed him to “[p]ut [the badge] on now.” Id. Plaintiff
19 continued into the building to the office where his training was scheduled to take place, and then
20 “changed [his] mind, . . . grabbed [his] bag[,] and walked out.” Id.
21 As Plaintiff was walking out, another senior manager approached him and instructed
22 Plaintiff to “step into her office.” Id. at 29. Plaintiff refused, telling the second senior manager,
23 “[n]o, not right now,” and that he “d[idn’t] think it[ was] necessary.” Id. As he left, Plaintiff saw

24 that one or two of the managers did not have their badges, which upset him more. Id. at 30.
1 Plaintiff then left the building, telling the second senior manager that he needed to “cool off.” Id.
2 at 31. At some point during the exchange, Plaintiff used profanity and raised his voice, though
3 the degree to which he did both is disputed. See id.; see also Dkt. No. 45 at 12.
4 A senior manager followed Plaintiff outside and asked for his badge and other company

5 property. See Dkt. No. 44-1 at 31. Plaintiff refused to turn his badge over, as he believed that the
6 badge was his personal property, and he told the managers that he did not have any other
7 property. See id. A senior manager again asked for Plaintiff’s badge, and Plaintiff again refused
8 to turn it over. Id. Plaintiff then left the Seattle FedEx premises. See Dkt. No. 34 at 3.
9 Several days later, Plaintiff received a letter terminating his employment with Defendant.
10 Dkt. No. 44-1 at 34; see also Dkt. No. 44-2 at 16–17 (letter of termination). On May 10, 2023,
11 Plaintiff filed a charge of discrimination against Defendant with the Washington State Human
12 Rights Commission and United States Equal Employment Opportunity Commission (“EEOC”).
13 See Dkt. No. 44-2 at 17–18. On May 24, 2023, the EEOC determined that it would not proceed
14 further with its investigation and provided Plaintiff with a notice of his right to sue Defendant.

15 See Dkt. No. 44-2 at 19–20.
16 Plaintiff filed the instant action on August 3, 2023, asserting claims against Defendant
17 FedEx as well as against the individual senior managers involved in the September 13, 2022,
18 altercation. See generally Dkt. Nos. 1 (application for leave to proceed in forma pauperis), 5
19 (complaint). Defendants moved to dismiss the individual Defendants (Dkt. No. 13), and the
20 Court granted that motion. Dkt. No. 22. Plaintiff subsequently filed an Amended Complaint
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1 (Dkt. No. 342), and Defendant answered (Dkt. No. 36). On June 13, 2025, Defendant filed the
2 instant motion, which seeks summary judgment on all of Plaintiff’s claims. See Dkt. No. 44.
3 II. LEGAL STANDARD
4 The Federal Rules of Civil Procedure “mandate[] the entry of summary judgment, after

5 adequate time for discovery and upon motion, against a party who fails to make a showing
6 sufficient to establish the existence of an element essential to that party’s case, and on which that
7 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
8 (1986) (citing Fed. R. Civ. P. 56(c)). The inquiry at the summary judgment stage is “whether the
9 evidence presents a sufficient disagreement to require submission to a jury or whether it is so
10 one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S.
11 242, 251–52 (1986).
12 The party moving for summary judgment must carry its burden of production by “either
13 produc[ing] evidence negating an essential element of the nonmoving party’s claim or defense or
14 show[ing] that the nonmoving party does not have enough evidence of an essential element to

15 carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz
16 Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). This showing must be made through evidence in
17 the record. Fed. R. Civ. P. 56(c) (explaining the ways in which a “party asserting that a fact
18 cannot be or is genuinely disputed must support the assertion”). Unless the burden of production
19 is met, “the nonmoving party has no obligation to produce anything” to support its claims or
20 defenses. Nissan Fire, 210 F.3d at 1103.
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2 Plaintiff filed a praecipe to his Amended Complaint (Dkt. No. 35), but it is unclear what he was correcting:
Plaintiff did not attach a redlined version of the amended pleading that showed how it differed from the pleading
24 that it sought to amend. See LCR 15(b).
1 Courts do not make credibility determinations or weigh the evidence at this stage. See
2 Munden v. Stewart Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021). They resolve factual
3 issues in favor of a non-moving party, “only in the sense that, where the facts specifically
4 averred by that party contradict facts specifically averred by the movant, the motion must be

5 denied.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). Conclusory, non-specific
6 affidavits are insufficient, and “missing facts” are not to be presumed. Id. at 889. Further,
7 uncorroborated and self-serving testimony does not create a genuine issue of fact. See Villiarimo
8 v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
9 III. DISCUSSION
10 Plaintiff brings six claims under Title VII of the Civil Rights Act of 1964, asserting that
11 Defendant discriminated against him based on his race when it terminated his employment. See
12 generally Dkt. No. 34.
13 A. Asserted Factual Disputes
14 As an initial matter, the Court addresses several of the factual disputes that Plaintiff

15 contends preclude summary judgment in this case. See Dkt. No. 45 at 9–14.
16 As the Court articulated above, a genuine dispute as to a material fact may preclude
17 summary judgment. See Fed. R. Civ. P. 56(a). “A material fact is one that may affect the
18 outcome of the case under the applicable law.” Walsh v. Tehachapi Unified Sch. Dist., 997 F.
19 Supp. 2d 1071, 1077 (E.D. Cal. 2014) (citing Anderson, 477 U.S. at 248). “A dispute is genuine
20 ‘if the evidence is such that a reasonable trier of fact could return a verdict in favor of the
21 nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248).
22 Plaintiff contends that Defendant’s failure to preserve or produce video and audio
23 evidence of the incident related to Plaintiff’s termination is a “specific fact showing that there is

24 a genuine issue for trial.” Dkt. No. 45 at 15. But Plaintiff did not file a motion to compel or
1 otherwise alert the Court of a potential discovery dispute until filing his response to the instant
2 motion, well after the deadline for discovery motions in this case. See generally Dkt. No. 28
3 (case schedule). While Plaintiff has produced emails showing his negotiations with Defendant
4 over this issue (Dkt. No. 45 at 33–35), he has not presented any evidence suggesting that

5 Defendant improperly engaged in spoliation of relevant evidence in this case. Plaintiff’s
6 allegation that “Defendant’s weak explanation for not providing video footage shows
7 discriminatory intent” (Dkt. No. 45 at 15) is insufficient to create an issue of material fact
8 precluding summary judgment. See Bazzo v. Gates, No. C21-1343, 2025 WL 1092760, at *12
9 (E.D. Cal. Aug. 11, 2025) (finding that plaintiff’s assertions that defendants’ responses to various
10 discovery requests did not preclude summary judgment where plaintiff had never filed motion to
11 compel).
12 Plaintiff also argues that his behavior is disputed because: (1) he did not direct profanity
13 toward any staff; (2) he was never “instructed” to step into a manager’s office, but was instead
14 requested to do so; and (3) he returned Defendant’s company property prior to being terminated.

15 See Dkt. No. 45 at 6. But it does not appear that Defendant disputes these facts; rather, it argues
16 that these facts were not material to the reason for Plaintiff’s termination. See Dkt. No. 47 at 6.
17 The Court agrees. To the extent that Plaintiff provides supporting evidence for his assertions of
18 fact, the Court views it in the light most favorable to Plaintiff. However, as discussed below, see
19 infra Section III.B.3, none of the evidence presented by Plaintiff presents a competing factual
20 narrative as to the causes for Plaintiff’s termination.
21 Having determined that no factual dispute as to any material facts precludes summary
22 judgment, the Court turns to a substantive evaluation of Defendant’s motion.
23

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1 B. Title VII Disparate Treatment Claims
2 “Title VII makes it an unlawful employment practice to ‘discriminate against any
3 individual with respect to his compensation, terms, conditions, or privileges of employment,
4 because of such individual’s race, color, religion, sex, or national origin.’” Jordan v. Foxx, 107

5 F. Supp. 3d 1144, 1150 (W.D. Wash. 2015) (quoting 42 U.S.C. § 2000e–2). “Disparate treatment
6 occurs ‘where an employer has treated a particular person less favorably than others because of a
7 protected trait.’” Id. (quoting Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012)).
8 “[T]he basic allocation of burdens and order of presentation of proof in a Title VII case alleging
9 discriminatory treatment” is as follows:
10 First, the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if the
11 plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant to articulate some legitimate, nondiscriminatory
12 reason for the employee’s rejection. Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to
13 prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were
14 a pretext for discrimination.
15 Id. (quoting Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014)); see also McDonnell
16 Douglas Corp. v. Green, 411 U.S. 792 (1973).
17 1. Prima Facie Showing of Racial Discrimination
18 To prove a prima facie claim of Title VII discrimination based on race, Plaintiff must
19 show that: (a) he belonged to a protected class; (b) he was qualified for his job; (c) he was
20 subjected to an adverse employment action; and (d) similarly situated employees not in his
21 protected class received more favorable treatment. Jordan, 107 F. Supp. 3d at 1150. “Under the
22 McDonnell Douglas framework, ‘[t]he requisite degree of proof necessary to establish a prima
23 facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to
24 the level of a preponderance of the evidence.’” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225
1 F.3d 1115, 1124 (9th Cir. 2000) (citation omitted). To survive summary judgment with respect to
2 the establishment of a prima facie case of disparate treatment, a plaintiff must produce “very
3 little, . . . so long as it is more than ‘purely conclusory allegations of alleged discrimination, with
4 no concrete, relevant particulars.’” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.

5 2004) (first quoting Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988),
6 then quoting Chuang, 225 F.3d at 1124).
7 a. Protected Class
8 Defendant does not dispute that Plaintiff, as an African–American man, is a member of a
9 protected class. Dkt. No. 44 at 6; Dkt. No. 45 at 15. Employment discrimination based on a
10 person’s racial identity is prohibited under Title VII. See 42 U.S.C. § 2000e; Cornwell v. Electra
11 Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006).
12 b. Qualified for the Job
13 Defendant does not dispute that Plaintiff performed his job adequately; therefore, for the
14 purposes of this motion, the Court assumes without deciding that Plaintiff was performing his

15 job adequately. See generally Dkt. No. 44; McDaniels v. Grp. Health Co-op., 57 F. Supp. 3d
16 1300, 1310 (W.D. Wash. 2014) (assuming without deciding that plaintiff was performing job
17 adequately where “thrust” of plaintiff’s claim was that while she committed some misconduct,
18 defendant punished her more harshly for that conduct because of her race).
19 c. Adverse Employment Action
The Parties agree that Plaintiff was terminated from his employment with Defendant;
20
thus, Plaintiff has established that Defendant took an adverse employment action against him.
21
See Dkt. No. 44 at 9; Dkt. No. 45 at 5; Knight v. Brown, 797 F. Supp. 2d 1107, 1125 (W.D.
22
Wash. 2011) (“The Ninth Circuit has recognized that only ‘non-trivial’ employment actions,
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such as ‘termination, dissemination of a negative employment reference, issuance of an
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1 undeserved negative performance review and refusal to consider for promotion’ qualify as
2 adverse employment actions.” (quoting Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.
3 2000)).
4 d. Similarly Situated Employees/Other Circumstances

5 The thrust of the Parties’ dispute is centered around the fourth prong of a prima facie
6 showing. Under this prong, Plaintiff must show “either that ‘similarly situated individuals
7 outside his protected class were treated more favorably, or that other circumstances surrounding
8 the adverse employment action give rise to an inference of discrimination.’” Knight, 797 F.
9 Supp. 2d at 1127 (quoting Peterson, 358 F.3d at 603). Plaintiff contends that evidence of a
10 similarly-situated employee satisfies this element. See Dkt. No. 45 at 17.
11 Plaintiff points to one similarly-situated employee whom he contends was treated more
12 favorably: Edwin Preston, a former Senior Safety Officer/Specialist with FedEx Express
13 employed in Memphis, Tennessee. See Dkt. No. 45 at 17; Preston v. Federal Express Corp., 373
14 F. Supp. 3d 1172, 1178 (W.D. Tenn. 2019). “Whether two employees are similarly situated is

15 ordinarily a question of fact.” Knight, 797 F. Supp. 2d at 1126 (quoting Beck v. United Food &
16 Com. Workers Union Loc. 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007)). “In general, ‘individuals
17 are similarly situated when they have similar jobs and display similar conduct.’” Id. (quoting
18 Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003)). “The employees’ roles
19 need not be identical, but they must be similar ‘in all material respects.’” Id. (quoting Moran v.
20 Selig, 447 F.3d 748, 755 (9th Cir. 2006)).
21 Plaintiff alleges that Preston was similarly situated and treated more favorably when he
22 committed similar misconduct, citing primarily to Preston’s lawsuit against Defendant. Dkt. No.
23 45 at 17 (citing Preston, 373 F. Supp. 3d at 1172). He argues that Preston had a “far more

24 egregious history of misconduct,” including a physical confrontation with another employee, but
1 received several warning letters and counseling prior to being terminated. See id. at 17–18.
2 Defendant argues that Plaintiff cannot establish that Preston was similarly situated, because
3 Preston was supervised by a different manager in a different city, and because Plaintiff relies
4 entirely on hearsay evidence. Dkt. No. 44 at 12.

5 When ruling on a motion for summary judgment, a trial court may only consider
6 admissible evidence. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing
7 Fed. R. Civ. P. 56(e)). “While a nonmoving party need not present evidence in an admissible
8 form, ‘the facts underlying the [evidence] must be of a type that would be admissible as
9 evidence.’” Pacesetter Consulting LLC v. Kapreilian, No. C19-388, 2021 WL 3168471, at *3
10 (D. Ariz. July 27, 2021) (quoting De La Torre v. Merck Enters., Inc., 540 F. Supp. 2d 1066, 1075
11 (D. Ariz. 2008) (alteration in original)). “Thus, though [a party] is not required to produce
12 evidence in a form that would be admissible at trial, [it] must show that [it] would be able to
13 present the underlying facts in an admissible manner at trial.” Id. (alterations in original)
14 (quoting De La Torre, 540 F. Supp. 2d at 1075).

15 “Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial
16 or hearing, offered in evidence to prove the truth of the matter asserted.’” Orr, 285 F.3d at 778
17 (quoting Fed. R. Evid. 801(c)). “In the absence of a procedural rule or statute, hearsay is
18 inadmissible unless it is defined as non-hearsay under Federal Rule of Evidence 801(d) or falls
19 within a hearsay exception under Rules 803, 804 or 807.” Id. (citing Fed. R. Evid. 802).
20 Plaintiff’s reliance on Preston for the truth of the facts underlying Mr. Preston’s
21 employment and termination is problematic for two reasons. First, the court opinion upon which
22 Plaintiff relies is inadmissible hearsay, and Plaintiff has not made any showing that he would be
23 able to present the underlying facts in an admissible manner at trial. See Pacesetter, 2021 WL

24 3168471, at *3. Second, even if Plaintiff had made a showing that he would be able to, for
1 example, subpoena the parties in Preston, the Court cannot presume the truth of any of the facts
2 detailed in the opinion, as the Preston court made no factual findings. See generally 373 F. Supp.
3 3d at 1176–85. Another Preston order upon which Plaintiff relies (see Dkt. No. 45 at 17–18) is
4 that court’s pretrial order, which lists Preston and defendant FedEx’s “contentions” of fact. See

5 Joint Pre-Trial Order, Preston v. Federal Express Corp., No. C17-2876 (W.D. Tenn. May 13,
6 2019). These are also inadmissible hearsay.
7 But even if Plaintiff were able to present admissible evidence of the facts underlying the
8 court’s opinion in Preston, that opinion fails to demonstrate that a similarly-situated employee
9 was treated more favorably than Plaintiff. The Court acknowledges that Preston’s behavior
10 seems to be, on its face, similar or worse than Plaintiff’s, yet he was not terminated. For
11 example, on one occasion, Preston allegedly failed to present his employee badge after being
12 asked twice and responded with yelling a profanity but received a two-day suspension; on
13 another occasion, Preston received a warning letter when he initiated a physical confrontation
14 where he threw keys at another person and yelled throughout the office. See Joint Pre-Trial

15 Order, Preston v. Federal Express Corp., No. C17-2876, at 9–12 (W.D. Tenn. May 13, 2019)
16 (Defendant’s contentions of fact). However, “[w]hile not every circumstance between . . .
17 comparators must be identical and there is no strict ‘same supervisor’ requirement,” there are
18 material distinctions between Plaintiff’s case and Preston’s. Dismuke v. Boeing Co., No. C11-
19 264, 2012 WL 1658374, at *3 (W.D. Wash. May 11, 2012). Preston did not have a similar
20 position to Plaintiff, and he worked for an entirely different management team at a FedEx
21 location across the country from Plaintiff—which means that Preston’s supervisors may have
22 had different motivations to retain employees and, particularly, different motivations to retain
23 employees in different job categories, such as Safety Officer, like Preston, or Courier, like

24 Plaintiff. Further, Preston’s supervisors may have had different governing standards for handling
1 misconduct than those maintained by Plaintiff’s supervisors. Plaintiff provides no evidence
2 showing that the standards and policies governing Preston’s employment were the same
3 standards and policies that applied to Plaintiff. And Plaintiff and Preston were employed for
4 significantly different periods of time—Plaintiff for less than two months before the disputed

5 conduct, and Preston for almost eight years. See Preston, 373 F. Supp. 3d at 1176.
6 Therefore, Plaintiff has not shown that a similarly situated employee, who was not a
7 member of Plaintiff’s protected class, was treated more favorably. As a result, Plaintiff does not
8 establish a prima facie showing of racial discrimination.
9 2. Legitimate, Nondiscriminatory Reason for Termination
10 Even if the Court assumes for the sake of argument that Plaintiff’s evidence establishes a
11 prima facie case of racial discrimination, Defendant has proffered a legitimate, non-
12 discriminatory reason for Plaintiff’s termination.
13 The burden of articulating “some legitimate, nondiscriminatory reason for the challenged
14 action” “is one of production, not persuasion, and involves no credibility assessment.” Opara v.

15 Yellen, 57 F.4th 709, 723 (9th Cir. 2023) (citation modified) (first quoting EEOC v. Boeing Co.,
16 577 F.3d 1044, 1049 (9th Cir. 2009), then quoting Reeves v. Sanderson Plumbing Prods., Inc.,
17 530 U.S. 133, 142 (2000)).
18 Defendant argues that its “September 2022 Termination Letter articulates a legitimate,
19 nondiscriminatory reason for Plaintiff’s termination, i.e. he was terminated by his manager
20 Adam McCann because he engaged in disruptive behavior on September 13, 2022, in violation
21 of FedEx’s P2-5 Acceptable Conduct Policy.” Dkt. No. 44 at 13; see also Dkt. No. 45 at 52–53
22 (Acceptable Conduct Policy). Plaintiff argues that the termination letter is vague and
23 inapplicable to the conduct policy because the policy does not specifically identify Plaintiff’s

24 cited conduct, including profanity or yelling, as a violation. See Dkt. No. 45 at 9–10. But
1 Defendant’s burden here “is one of production, not persuasion, and involves no credibility
2 assessment.” See Opara, 57 F.4th at 725–26. The Acceptable Conduct Policy, which Plaintiff
3 does not dispute, states that “[a]cceptable conduct involves the sincere respect for the rights and
4 feelings of others and the assurance that personal conduct in both your business and personal life

5 follows the FedEx Code or Business Conduct and Ethics.” Dkt. No. 45 at 52. It includes, as
6 examples of behavior that may result in termination, “[i]nsubordination or refusal to follow
7 instructions,” and “[e]ngaging in violent, threatening, intimidating, harassing, or abusive
8 behavior.” See id. Defendant’s termination letter to Plaintiff cites to conduct that could
9 reasonably fall under these two examples: Plaintiff’s refusal to follow instructions, use of curse
10 words, and refusal to speak to a manager or surrender his badge. Dkt. No. 44-2 at 16.
11 Accordingly, Defendant’s proffered legitimate, nondiscriminatory reasons for its action are
12 sufficient.
13 3. Showing of Pretext
14 Because Defendant has articulated a legitimate, nondiscriminatory reason to explain

15 Plaintiff’s termination, the burden shifts back to Plaintiff to show that Defendant’s articulated
16 reasons are pretextual. See Opara, 57 F.4th at 726. “[A] plaintiff can prove pretext in two ways:
17 (1) indirectly, by showing that the employer’s proffered explanation is ‘unworthy of credence’
18 because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that
19 unlawful discrimination more likely motivated the employer.” Chuang, 225 F.3d at 1127 (citing
20 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 1998)).
21 “Direct evidence is evidence ‘which, if believed, proves the fact [of discriminatory
22 animus] without inference or presumption.’” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090,
23 1095 (9th Cir. 2005) (alteration in original) (quoting Godwin, 150 F.3d at 1221). It “typically

24 consists of clearly sexist, racist, or similarly discriminatory statements or actions by the
1 employer.” Id. (citing Godwin, 150 F.3d at 1221 (supervisor stated he ‘did not want to deal with
2 [a] female”)). “Because direct evidence is so probative, the plaintiff need offer ‘very little’ direct
3 evidence to raise a genuine issue of material fact.” Id. (quoting Godwin, 150 F.3d at 1221).
4 “Circumstantial evidence, in contrast, is evidence that requires an additional inferential

5 step to demonstrate discrimination,” and can take two forms. Id. “First, the plaintiff can make an
6 affirmative case that the employer is biased”—by, for example, presenting statistical evidence
7 pointing to bias. Id. “Second, the plaintiff can make his case negatively, by showing that the
8 employer’s proffered explanation for the adverse action is ‘unworthy of credence.’” Id. (quoting
9 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). When a plaintiff “relies on
10 circumstantial evidence, that evidence must be ‘specific and substantial’ to defeat the employer’s
11 motion for summary judgment.” Id. (quoting Godwin, 150 F.3d at 1222).
12 Here, Plaintiff relies on circumstantial evidence. Plaintiff argues that Defendant’s
13 proffered explanation for his termination is unworthy of credence because it is unsupported by
14 his factual recitation of the events surrounding his termination. See generally Dkt. No. 45 at 9–

15 14. Accordingly, he must present “specific and substantial” evidence to defeat Defendant’s
16 motion for summary judgment. See Coghlan, 413 F.3d at 1096. But as explained in the next
17 section, because the “same actor inference” applies in this case, Plaintiff’s burden is “especially
18 steep.” See id.
19 a. Same-Actor Inference
20 “[W]here the same actor is responsible for both the hiring and the firing of a
21 discrimination plaintiff, and both actions occur within a short period of time, a strong inference
22 arises that there was no discriminatory action.” Coghlan, 413 F.3d at 1096 (quoting Bradley v.
23 Harcourt, Brace & Co., 104 F.3d 267, 270–71 (9th Cir. 1996)). There is a strong inference that

24 there was no discrimination because the “initial willingness to hire the employee-plaintiff is
1 strong evidence that the employer is not biased against the protected class to which the employee
2 belongs.” Coghlan, 413 F.3d at 1096 (citing Bradley, 104 F.3d at 270–71).
3 Here, Defendant asserts that FedEx Manager Adam McCann made the decision to hire
4 Plaintiff, as well as the decision to terminate his employment. Dkt. No. 44 at 7. Plaintiff raises in

5 opposition the fact that several managers were involved in his hiring and termination, citing to
6 offer letters and termination letters signed by individuals other than Mr. McCann. Dkt. No. 45 at
7 19.3 However, regardless of who signed the various paperwork, Plaintiff admitted at his
8 deposition that Mr. McCann was the individual who made the hiring decision (Dkt. No. 44-1),
9 and the documents submitted with his response show that Mr. McCann was the individual
10 responsible for the corrective actions that resulted in termination as well as the actual termination
11 (see Dkt. No. 45 at 24, 28–30). But even where there are multiple decisionmakers involved in
12 both the hiring and firing, if only one of the decisionmakers involved in both is the same, the
13 same-actor inference may apply. See Wilson v. Battelle Mem’l Inst., No. C11-5130, 2012 WL
14 4514510, at *10 (E.D. Wash. Oct. 1, 2012); Griffith v. Schnitzer Steel Indus., Inc., 128 Wn. App.

15 438, 454, 115 P.3d 1065 (Ct. App. 2005). Here, there is no dispute that Adam McCann was
16 involved with both Plaintiff’s hiring on August 3, 2022, and Plaintiff’s termination on September
17 15, 2022—less than two months later. See Dkt. No. 44-1 at 14 (noting that Adam McCann “was
18 the one who made the decision [to hire Plaintiff]”); Dkt. No. 45 at 24 (termination letter).
19 Plaintiff also argues that the fact that he “properly returned all of the company property
20 when requested by Adam McCann” prior to being terminated is a significant change in
21
22
3 It is unclear exactly which pages of the attachments to his response correspond to the letters, as there are no cover
pages or separators between documents that indicate which exhibit letter corresponds to each document. However,
23
the Court notes that offer letters are only sent after a hiring decision is made. Further, the letters discussing
Plaintiff’s termination signed by individuals other than Mr. McCann relate to his appeal of his termination and not to
24 the termination itself. See e.g., Dkt. No. 45 at 41–43.
1 circumstance which voids the same-actor inference. Dkt. No. 45 at 19. Plaintiff points to Sandell
2 v. Taylor-Listug, Inc. in support of his argument. Dkt. No. 45 at 19 (citing 115 Cal. Rptr. 3d 453
3 (Cal. Ct. App. 2010)). In Sandell, an age discrimination case, the plaintiff “suffered a stroke that
4 caused him to appear to be significantly older than he may have appeared at the time he was

5 hired,” leading the court to determine that although only five years existed between plaintiff’s
6 hiring and firing by the same actor, it could not adopt the inference that there had been no
7 discriminatory action as to plaintiff’s age. 115 Cal. Rptr. 3d at 475. The intervening circumstance
8 in Sandell was directly related to the plaintiff’s claim of age discrimination—the plaintiff’s
9 stroke caused him to appear significantly older. See id. Here, Plaintiff’s proposed intervening
10 circumstance—the fact that he returned all company property prior to his termination—does not
11 demonstrate a change in Plaintiff’s employment circumstances or present any suggestion of bias
12 by Defendant.
13 Therefore, the Court finds that the same-actor inference applies to this case. The initial
14 willingness of Defendant to hire Plaintiff is strong evidence that the employer is not biased

15 against the protected class to which the employee belongs. Nevertheless, “[t]he same-actor
16 inference is neither a mandatory presumption (on the one hand) nor a mere possible conclusion
17 for the jury to draw (on the other). Rather, it is a ‘strong inference’ that a court must take into
18 account on a summary judgment motion.” Coghlan, 413 F.3d at 1098 (citing Bradley, 104 F.3d
19 at 271). Accordingly, the Court must next consider whether Plaintiff has made out the strong
20 case of bias necessary to overcome this inference.
21 b. Specific and Substantial Evidence of Bias
22 Plaintiff identifies several pieces of evidence that he contends support a showing of racial
23 bias by Defendant.

24
1 First, Plaintiff contends that “[a] lack of diversity in the ratio between the white managers
2 to the Plaintiff’s race (African-American) shows the disadvantage the Plaintiff had against his
3 coworkers.” Dkt. No. 45 at 15. The potential effect of a non-diverse group of managers is
4 certainly relevant to Plaintiff’s claim but, standing alone, it does not present a competing

5 inference that is sufficient to support a showing of pretext by a preponderance of the evidence.
6 See Gibson v. King County, 397 F. Supp. 2d 1273, 1279 (W.D. Wash. 2005) (finding that lack of
7 diversity on interview panel created inference of discrimination where defendant’s explanation
8 for non-diverse panels—an inability to find qualified persons of color to serve on panels—was
9 rebutted by evidence that qualified individuals existed).
10 Plaintiff also contends that his letter of termination was “too vague and inapplicable to
11 [Defendant’s acceptable conduct policy].” Dkt. No. 45 at 9. But Plaintiff’s disagreement with
12 Defendant’s conclusions as to his conduct and the reasons for his termination does not mean that
13 those conclusions were not the actual reason for his termination. See Popek v. Prime Source, No.
14 C22-5283, 2023 WL 6466008, at *13 (W.D. Wash. June 20, 2023), report and recommendation

15 adopted by 2023 WL 5950459 (Sept. 13, 2023). “The Court’s role is to remedy discrimination,
16 not to assume the role of a super personnel department, assessing the merits—or even
17 rationality—of employers’ nondiscriminatory business decisions.” Id. (citation modified)
18 (quoting Shokri v. Boeing Co., 331 F. Supp. 3d 1204, 1220–21 (W.D. Wash. 2018)). Here,
19 Plaintiff admits that he raised his voice and used profanity (though he argues that he did not
20 direct profanity toward any particular manager), initially refused to return his badge, and left the
21 workplace when he had previously been scheduled to attend training. See, e.g., Dkt. No. 44-1 at
22 22–32; Dkt. No. 45 at 11, 13, 25–26, 44, 51, 65–70. Plaintiff’s own depiction of the incident
23 giving rise to his termination, even when read in the light most favorable to Plaintiff, does not

24 present sufficient evidence or demonstrate genuine disputes as to material facts that would allow
1 reasonable jury to find Defendant’s decision to terminate Plaintiff's employment based on the
2 || incident was merely a pretext to mask racial discrimination.
3 Therefore, Plaintiff has not presented “specific and substantial” evidence that
4 || Defendant’s proffered rationale for its decision to terminate Plaintiff's employment was
5 || pretextual. Taking into consideration both the same actor inference and Plaintiffs failure to
6 || provide specific and substantial evidence of bias, the Court finds Plaintiff fails to meet his
7 || burden to prove by a preponderance of the evidence that the legitimate, non-discriminatory
8 || reason offered by Defendant for terminating Plaintiff was a pretext for discrimination.*
9 IV. CONCLUSION
10 Accordingly, Defendant’s motion for summary judgment (Dkt. No. 44) is GRANTED. This
11 || case is DISMISSED.
12 Dated this 26th day of August 2025.
3 V4 Ze
14 Tana Lin
United States District Judge
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+ Because the Court finds that summary judgment is appropriate, it does not reach the timeliness issue raised by
92 || Defendant. The Court nevertheless notes that Defendant’s statement that “[c]ourts have consistently held that
FedEx’s contractual limitations period is enforceable as to Title VII claims” (Dkt. No. 47 at 14) misrepresents its
3 cited case. The case actually holds that FedEx’s six-month contractual limitation is not unreasonable as to Section
1981 claims, because “unlike Title VII claims, ‘there are no time-consuming procedural prerequisites that a plaintiff
must satisfy before she brings her claim in court.” Harris v. FedEx Corp. Servs., 92 F 4th 286, 295 (Sth Cir. 2024)
24 (emphasis added) (quoting Njang v. Whitestone Grp., Inc., 187 F. Supp. 3d 172, 179 (D.D.C. 2016)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11127910. Public record. Not legal advice.