Opinion
CV. No. 00-1721-HA.
November 27, 2001
Richard C. Busse, Jennifer L. Lanfranco, Busse Hunt, Portland, Oregon, Attorneys for Plaintiff.
Stephen P. Rickles, William D. Okrent, Holmes Rickles, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
In this action, plaintiff is suing her former employer, alleging federal and state claims for unlawful sex discrimination. Her Amended Complaint contains claims for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), and O.R.S. 659.030. This court has jurisdiction over the Title VII claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. For the following reasons, defendant's motion for summary judgment (doc. # 21) is denied, except as to plaintiff's federal claim for retaliation.
BACKGROUND
Plaintiff was employed as a salesperson for the defendant automotive dealership from May, 1999, through November, 1999, when she resigned. She worked primarily in defendant's Subaru dealership, with three other women and 10 men.
Plaintiff asserts that during the first few weeks of her employment, she was subjected to "intimidating type harassment," which belittled her. Plaintiff alleges that Bud Wilson, the used car sales manager, did most of the intimidating, and was more critical of female employees than the male employees. Plaintiff testified in her deposition that Wilson treated employees poorly, and frequently yelled and screamed at them.
Plaintiff also asserts that Floor Manager Michael Jackson harassed her sexually, by repeatedly asking her and other female employees to go to his house for "afternoon fun." These invitations began in July, 1999, and occurred three or four times a week until October, 1999. Jackson also is purported to have told plaintiff one day that she "looked beautiful" and was wearing a "sexy outfit." He also joked with plaintiff and Candy Chance, another female employee, about them both going together to his house with him.
Plaintiff also testified that another Floor Manager, Kevin Davis, once signaled to plaintiff from across the street and indicated to her that she had a telephone call. When plaintiff ran across the street, he told her that she did not have a call, but that he had wanted to watch her "titties bounce" as she crossed the street. Davis also repeatedly inquired about plaintiff's sexual activities, her "favorite positions," and how often she performed oral sex for her boyfriend.
Plaintiff resisted these overtures and conversations, and believes that as a result, her male supervisors retaliated against her. She claims she was deprived of vital training and support, while male salespersons received assistance. Once, when she went to the "sales tower" to get information, Wilson screamed at her to "get the fuck out, this is my tower." Plaintiff asserts that after she refused to engage in sexual banter or accept sexual propositions, the male managers refrained from providing assistance or training to her.
In October, 1999, plaintiff participated in a month-long "Autzen Stadium" car sales promotion and, despite expectations of selling 10 to 15 cars, sold only five. On November 12, 1999, plaintiff received a warning about her performance, and was advised that there was an expected monthly quota of eight sales. She and some other sales personnel were written up for October's performance. While she was initially motivated to perform better after the warning, plaintiff resigned from her job after an insulting encounter with Wilson. Plaintiff testified that on the day of this encounter she reported to work at 8 a.m., and that she worked until mid-afternoon without eating. When she asked Wilson if she could have a break for lunch, he purportedly yelled at her, saying "Well, you're not selling any cars anyway, you're just a piece of shit, why don't you go ahead and go."
Plaintiff says she did not return to work the next day, and resigned shortly thereafter. On her termination statement, plaintiff indicated that "the treatment of employees needs to be improved. Yelling and screaming is not the way to motivate people."
Plaintiff acknowledges that she received an employees' manual when she began her employment with defendant, and that the manual contains a "No Harassment Policy," indicating that dealership will not tolerate sexual harassment, and instructing employees who felt harassed to notify department managers, or alternatively the general manager, the human resource manager, or the dealer. Plaintiff did not make any reports or pursue the matter. She testifies that she was given the impression by other employees that one should never "step over your manager," that employees who did so were retaliated against, and she observed that Davis became very angry at another female employee who attempted to "go to upper management." Plaintiff's Deposition at 20. Another female employee, Shawna Burke, shared her frustration with plaintiff after Burke attempted to go to upper management about the need for more support. Plaintiff's Deposition at 22-23. Plaintiff also went to Shawn Mogenson, a sales manager at defendant's adjoining Toyota dealership, with a problem. He purportedly told plaintiff that he could not help her, and that her going to him for help would create a problem. Plaintiff's Deposition at 24. Plaintiff also observed that female employee Candy Chance received hostile treatment after she complained about being propositioned by a male co-worker. Plaintiff's Deposition at 27. There is no assertion by plaintiff, or any factual evidence in the record, that plaintiff formally complained about or reported her harassment.
PENDING MOTION
Defendant moves for summary judgment, arguing that (1) the alleged harassment falls short of constituting a "hostile environment altering the conditions of employment;" (2) plaintiff suffered no adverse employment action, including constructive discharge, and that constructive discharge is not an adverse or tangible employment action; (3) plaintiff's Title VII claim fails because she failed to take advantage of corrective opportunities; and (4) plaintiff's state claim should be dismissed under a similar analysis.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Special rules of construction apply to evaluating summary judgment motions: 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The issue of material fact required by Rule 56 to entitle a party to proceed to trial need not be resolved conclusively in favor of the party asserting its existence; all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id.; see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).
STANDARDS FOR UNLAWFUL GENDER DISCRIMINATION CLAIMS
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e. "Virtually no legislative history provides guidance to courts interpreting the prohibition of sex discrimination," however. Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).
In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII. Courts have recognized different forms of sexual harassment. In "quid pro quo" cases, employers condition employment benefits on sexual favors. In "hostile environment" cases, employees work in offensive or abusive environments. This case, like Meritor, involves a hostile environment claim.
The Equal Employment Opportunity Commission ("EEOC") guidelines describe hostile environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a)(3). The EEOC, in accord with a substantial body of judicial decisions, has concluded that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor, 477 U.S. at 65.
The Supreme Court cautioned, however, that not all harassment affects a "term, condition, or privilege" of employment within the meaning of Title VII. For example, the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" is not, by itself, actionable under Title VII. Id. at 67.
To state a claim under Title VII, sexual harassment "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. The Supreme Court drew its limiting language from Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972), the first case to recognize a hostile racial environment claim under Title VII. The Rogers phrasing limits hostile environment claims to cases where conduct alters the conditions of employment and creates an abusive working environment.
Similarly, the Ninth Circuit has recognized that to succeed on a hostile work environment theory of sexual harassment under Title VII, a plaintiff must prove that he or she was forced to endure a subjectively and objectively abusive working environment. Rene v. MGM Grand Hotel Inc., 243 F.3d 1206, 1207 (9th Cir. 2001). In Jordan v. Clark, 847 F.2d 1368, 1373 (9th Cir. 1988), cert. denied sub nom., Jordan v. Hodel, 488 U.S. 1006 (1989), the Ninth Circuit explained that a hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. See also Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999); Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999) (to assert Title VII claim based on a hostile work environment, claimant must allege pattern of ongoing and persistent harassment severe enough to alter the conditions of employment), quoting Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). As already noted above, the working environment must be subjectively and objectively perceived as abusive because of the sexual harassment. Id., citing Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir. 1995) and Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
In Draper, the Ninth Circuit recognized that to evaluate claims of discriminatory conduct narrowly and in isolation "is inappropriate, particularly in the context of a continuing violation claim." Draper, 147 F.3d at 1108, quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (determining what sorts of workplace behavior constitutes discriminatory action creating a hostile work environment requires "careful consideration of the social context in which particular behavior occurs and is experienced by its target . . . [and it] often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed"). The Draper court recognized that "[d]iscriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender." Draper, 147 F.3d at 1109 (citation omitted). In sum, sexual or gender-based conduct violates Title VII where it "pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position." Steiner v. Showboat Operating Com., 25 F.3d 1459, 1463 (9th Cir. 1994).
However, in order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, the Ninth Circuit held in Ellison that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Ellison, 924 F.2d at 879.
Relatedly, the Supreme Court has recognized that the "standards for judging hostility [must be] sufficiently demanding to ensure that Title VII does not become a `general civility code.'" Faragher v. Boca Raton, 524 U.S. 775, 788 (1998), (quoting Oncale, 523 U.S. at 80). Such standards "will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id., (internal quotations and citations omitted).
The Ninth Circuit has reiterated that a high standard exists for the granting of summary judgment in employment discrimination cases. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (courts should require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record (citations omitted)); see also Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991).
ANALYSIS OF SUMMARY JUDGMENT ARGUMENTS
(1) Did the alleged harassment create a "hostile environment altering the conditions of employment"
Defendant's first argument in support of its motion for summary judgment is that plaintiff's allegations fall short of describing a hostile work environment that altered her conditions of employment. Taking the allegations in a light favorable to plaintiff's claims, she endured sexual commentary and joking from the male workforce in general, repeated propositions of a sexual nature from one floor manager, who also told her she looked "sexy" and "beautiful," as well as repeated inquiries regarding her sexual practices from another male manager, who also once deceived plaintiff into running across a street so that he could stare at her breasts. Relatedly, plaintiff experienced resistance and hostility when seeking assistance and support, possibly in retaliation to her objections to the sexual banter from male supervisors.
Defendant argues that these incidents, while regrettable if true, fall short of being so severe and pervasive as to alter plaintiff's employment conditions. Defendant characterizes the incidents as the kind of simple teasing and offhand commentary that the Supreme Court in Faragher recognized as not causing "discriminatory changes in the terms and conditions of the workplace." Faragher, 524 U.S. at 788 (internal quotations omitted).
In Burrell, the Ninth Circuit was faced with allegations of supervisor conduct similar to those raised here. The Circuit reversed the lower court's decision to grant the employer summary judgment, concluding that allegations that a store manager sexually harassed a plaintiff by making comments containing sexual references, saying he wanted to take a trip to the mountains with her, and making references to how plaintiff looked and how "well built" she was, raised issues of fact regarding whether there was a hostile work environment. See Burrell, 170 F.3d at 953. The allegations here raise similar issues of fact regarding a possible hostile work environment. These issues of fact are sufficient to defeat the motion for summary judgment.
(2) Plaintiff's allegations of retaliation
To establish a prima facie retaliation claim for opposing prohibited conduct under the "opposition clause" of 42 U.S.C. § 2000e-3(a), Title VII, a plaintiff is required to show 1) involvement in a protected activity, 2) an adverse employment action taken against the plaintiff, and 3) a causal link between the two. See Little v. Windermere Relocation, Inc., 265 F.3d 903, 913 (9th Cir. 2001); see also Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (a prima facie case of retaliation under Title VII requires a plaintiff to establish that: (1) she was engaged in a protected activity under Title VII; (2) the employer subjected the plaintiff to an adverse employment action; and (3) that there is a causal link between the protected activity and the employer's action).
Title VII provides in relevant part that employers are prohibited from discriminating against an employee because that employee "has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). A plaintiff's opposition to an employer is protected when it is based on a reasonable belief that the employer has engaged in an unlawful employment practice. Little, 265 F.3d at 913, quoting Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994); but see Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987) (summary judgment appropriate for radio station employer on employee's retaliation claim where employee was fired for failing to comply with an order to speak only English while broadcasting, and plaintiff failed to produce evidence that by personally opposing the employer's order, he engaged in any activity protected by Title VII).
Plaintiff relies upon Black v. City County of Honolulu, 112 F. Supp.2d 1041, 1049 (D. Ha. 2000), in arguing that her resistance to the sexual advances may constitute "protected activity." The plaintiff in Black alleged that she engaged in protected activities that included making informal complaints; filing a formal complaint of sexual harassment; and requesting a transfer. The court noted that characterizing the request for a transfer as "protected activity" was "questionable," but recognized that some "courts have held that refusal of sexual advances is sufficient to constitute protected activity." Id. at 1049, citing Fleming v. South Carolina Dep't of Corrections, 952 F. Supp. 283 (D.S.C. 1996); Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995); Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D.Tenn. 1987); EEOC v. Domino's Pizza, 909 F. Supp. 1529, 1533 (M.D.Fla. 1995). The court acknowledged a split on this issue, however, citing Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996) (which ruled that "even the broadest interpretation of a retaliation claim cannot encompass instances where the alleged `protected activity' consists simply of declining a harasser's sexual advances, which is all that is alleged here by way of `protected activity.' If it were otherwise, every harassment claim would automatically state a retaliation claim as well").
In Black, the court considered evidence suggesting that the plaintiff requested a transfer "in order to free herself from [her supervisor's] sexual advances and harassment," and concluded that the plaintiff "affirmatively attempted to end [the supervisor's] abusive practices" and while "opposition of this sort is not as overt as verbal or physical rejection, or even rejection manifested in disobedience, it is still behavior that [the supervisor] should have comprehended as opposition to his conduct." Black, 112 F. Supp.2d at 1049-1050.
The circumstances presented in this case are distinguishable. Plaintiff did not make any formal or informal complaints, and did not request a transfer or otherwise manifest her opposition to the alleged sexual advances. While this court agrees that there may be circumstances in which a plaintiff's refusal of sexual advances may manifest itself in conduct that is sufficient to constitute protected activity, those circumstances are absent in the facts of this case as alleged by plaintiff. Accordingly, defendant is entitled to summary judgment on plaintiff's retaliation claim because the record lacks evidence of any "protected activity" in which plaintiff may have engaged.
(3). Defendant's affirmative defense
Where a harasser has supervisory authority over the victim, the harasser's employer is presumed to be vicariously liable for the harassment. However, this presumption may be overcome through an affirmative defense if the alleged harassment has not culminated in a "tangible employment action." See Burrell, 170 F.3d at 956, citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
As explained in Ellerth and Faragher:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807 (emphasis added).
Conversely, this affirmative defense is unavailable when the supervisor's harassment has culminated in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id.
Defendant wishes to overcome the presumption of liability and so argues that plaintiff suffered no "tangible" or adverse employment action as a preface to asserting the affirmative defense that would negate the presumption of vicarious liability for the actions of plaintiff's supervisor. If plaintiff were constructively discharged, however, this could constitute a "tangible employment action" precluding defendant from asserting its affirmative defense against the presumption of liability.
See Ray, 217 F.3d at 1242-43 (the Ninth Circuit recognizes a distinction between the more restrictive concept of "tangible" employment actions, which apply to determinations of whether vicarious liability applies, and "adverse" employment actions, which apply in evaluating retaliation claims).
Regardless of whether plaintiff was constructively discharged, or whether such discharge is a tangible employment action, questions of fact exist concerning the elements of the affirmative defense (whether defendant exercised reasonable care to prevent or promptly correct any sexually harassing behavior and whether plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm). Accordingly, the portion of defendant's motion for summary judgment based upon these arguments is denied.
Because defendant may wish to assert the affirmative defense after evidence is presented at trial, the court now addresses whether a constructive discharge should constitute a "tangible employment action" that would preclude defendant from asserting its affirmative defense. The Ninth Circuit has expressly left open the question of whether constructive discharge can constitute a tangible employment action. See Montero, 192 F.3d at 861 ("We need not decide whether a constructive discharge can be a `tangible employment action' for the purpose of a Faragher analysis, because the plaintiff was not constructively discharged"). In Cherry v. Menard, Inc., 101 F. Supp.2d 1160, 1173 (N.D.Iowa 2000), the district court interpreted the Supreme Court's reasoning in Ellerth/Faragher as relying upon the nature of the harm inflicted by a supervisor (either a significant change in employment status or the infliction of a direct economic harm) for determining whether the supervisor's action is a "tangible employment action;" as such, "constructive discharge constitutes precisely the same sort of `significant change in employment status' and inflicts precisely the same sort of `economic harm' as any other `firing.'" Id. Accordingly, "a constructive discharge that results from the sexually harassing conduct of a supervisor should suffice to deprive an employer of the Ellerth/Faragher affirmative defense." Id.
This court agrees. Under the reasoning provided by the Supreme Court in Ellerth/Faragher, constructive discharge constitutes a tangible employment action as the Court contemplated the term. Therefore, if there were a factual determination that plaintiff was constructively discharged, defendant would be precluded from asserting the Ellerth/Faragher affirmative defense. However, during oral argument on the motion for summary judgment, plaintiff's counsel acknowledged that plaintiff's common law claim for constructive discharge was withdrawn. The parties are ordered to file briefs addressing how best to present and resolve at trial the factual issues pertaining to the Ellerth/Faragher affirmative defense, including whether defendant exercised reasonable care to prevent or promptly correct any sexually harassing behavior; whether plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm; and whether plaintiff was constructively discharged. These briefs must be filed no later than January 12, 2002. The parties may also elect to draft responsive briefs, which are to be filed on or before January 26, 2002. If necessary, the court will elicit oral argument on the issue at the pretrial conference.
(4) Plaintiff's state discrimination claim
Plaintiff asserts a claim under Oregon's discrimination statute. Defendant's motion for summary judgment as to the state discrimination claim is granted in part and denied in part in accordance with the federal claims rulings provided above. See Snead v. Metropolitan Property Casualty Ins. Co., 237 F.3d 1080, 1092 (9th Cir.) cert. denied, ___U.S.___, 122 S.Ct. 201 (2001) (it is appropriate to decline to provide separate analyses for state and federal claims after finding an issue of fact precluding summary judgment on the federal claim).
CONCLUSION
For the reasons provided above, defendant's motion for summary judgment (doc. # 21) is denied, except as to plaintiff's federal claim for retaliation. The pretrial conference in this matter is scheduled in Courtroom 13A on Monday, February 25, 2002 at 2 p.m. Trial is scheduled to begin at 9 a.m. on Tuesday, March 19, 2002. A Trial Management Order will follow separately detailing the court's requirements for the pretrial conference and the trial.
IT IS SO ORDERED.