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Ellorin v. Applied Finishing, Inc.

United States District Court, W.D. Washington

February 7, 2014

ANNALIZA ELLORIN, Plaintiff,
v.
APPLIED FINISHING, INC., et al., Defendants

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For Annaliza Ellorin, Plaintiff: Darryl Parker, LEAD ATTORNEY, Ada Ko Wong, PREMIER LAW GROUP, BELLEVUE, WA.

For Applied Finishing Inc, Michael Soden, Defendants: Aimee K Decker, Clemens H Barnes, GRAHAM & DUNN (SEA), SEATTLE, WA.

OPINION

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ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, United States District Judge.

I. INTRODUCTION

Before the court are: (1) Defendant Applied Finishing, Inc.'s (" Applied Finishing" ) motion for summary judgment (AF Mot. (Dkt. # 21)), and (2) Defendant Michael Soden's motion for summary judgment (Soden Mot. (Dkt. # 22)). The court has considered the motions, all submissions filed in support of and opposition thereto, the balance of the record, and the applicable law.[1] Being fully advised the court GRANTS in part and DENIES in part both motions as discussed below.

II. BACKGROUND

In this lawsuit, Plaintiff Annaliza Ellorin brings federal and state law claims alleging that Mr. Soden sexually harassed her and discriminated against her, and that her employer, Applied Finishing, did not take reasonable steps to investigate the harassment or ensure the implementation of appropriate corrective actions.

Ms. Ellorin immigrated to the United States in 1988 from the Philippines. (Ellorin Decl. (Dkt. # 34) ¶ 1.) She can speak and understand some English, but does not consider herself to be fluent. ( Id. ¶ 3.) Applied Finishing is a business that paints metal and plastic parts for the aerospace industry. (R. Bickle Decl. (Dkt. # 24) ¶ 1.) The company is located in Mukilteo, Washington, and is owned by Randy and Pam Bickle and Mike and Heather Alligood.

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( Id. ) Mr. Soden is the operations manager at Applied Finishing. (Barnes Decl. (Dkt. # 30) Ex. A (" Bickle Dep." ) at 12:10-14; Ex. B (" Soden Dep." ) at 23:19-20.)

Ms. Ellorin worked at Applied Finishing from mid-October 2011, to January 22, 2012, through Express Personnel Service. (Ellorin Decl. ¶ 2.) She became a full-time employee directly with Applied Finishing on January 22, 2012, and worked there until May 3, 2013. ( Id. ) Ms. Ellorin's job entailed masking parts before they were painted. ( See id. ¶ ¶ 2-3; Barnes Decl. Ex. D (" Ellorin Dep." ) at 8-10.) She worked at an open table with five other women employees who were also masking parts. (Ellorin Dep. at 8-10, 12, 34-36.) With the exception of " a couple" of men, the majority of employees in the masking and packaging area of Applied Finishing's facility are women. (Bickle Dep. at 13:22-14:5.)

Applied Finishing hired Mr. Soden to manage operations, including facility management. (Soden Decl. (Dkt. # 23) ¶ 2.) In this position, Mr. Soden assists in setting up production lines and establishing workforce requirements. (Bickle Dep. at 12:18-24.) Mr. Soden maintains that his duties do not include hiring, firing, directing, or in any other way managing or supervising any employees. (Soden Decl. ¶ 2; Soden Dep. at 23:23-24:9.) Mr. Randy Bickle, the president of Applied Finishing and one of its owners, also maintains that Mr. Soden does not supervise or manage any employees. ( See Bickle Dep. at 12:23-24 (" [Mr. Soden] didn't supervise or manage any employees." ).)

Nevertheless, there is conflicting testimony about Mr. Soden's involvement in supervising others at Applied Finishing. Some employees have testified that he supervised their work at least to some degree. ( See, e.g., Gillum Decl. (Dkt. # 26) ¶ 3; see also Ellorin Decl. ¶ 4.) Further, contrary to Mr. Soden's testimony, Mike Alligood, the production manager and one of the company's owners, testifies that Mr. Soden has participated in hiring employees. (Barnes Decl. Ex. C (" Alligood Dep." ) at 6:3-4 (" Q: Has [Mr. Soden] participated in the hiring of employees? A: Yes." ); see also id. at 5:18-6:2; 6:5-10:9.) Further, Mr. Alligood testifies that, although Mr. Soden does not have direct authority to terminate an employee, he could " voice his opinion" or recommend the termination of an employee, and in fact has commented on employees and their performance. (Alligood Dep. at 10:4-13.)

Ms. Ellorin states that she was initially hired in a masking production and quality assurance position. (Ellorin Decl. (Dkt. # 34) ¶ 2.) She testifies that Mr. Alligood told her that he wanted her learn the facility first, and that once she had done so, she could move into the quality assurance position. ( Id. ) Ms. Ellorin testifies that Mr. " Soden was the manager, and he would instruct the employees in masking and packaging . . . and give . . . instructions on a daily basis." ( Id. ¶ 4; see also Gillum Decl. (Dkt. # 26) ¶ 3 (" Mike Soden does not have authority over the Production team, including maskers, although initially, he would sometimes tell the maskers how to do their work on particular projects he was overseeing." ).)

Ms. Ellorin immediately saw Mr. Soden " being overly friendly" with some women employees and " greeting them with hugs." ( Id. ) Three weeks after Ms. Ellorin began full-time employment with Applied Finishing, Mr. Soden approached her and asked her to join him for a drink after work. ( Id. ¶ 5.) She declined. ( Id. )

Ms. Ellorin states that in her interactions with Mr. Soden, he would touch her hand, grab it tightly, or rub her arms. ( Id. ¶ 6.) She testifies that Mr. Soden would " find a reason to touch [her] on a daily basis" and " would stand so close that it would make [her] uncomfortable" and

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make it " difficult to concentrate on [her] work." ( Id. ) Once as he walked by, Mr. Soden blew Ms. Ellorin a kiss. ( Id. ¶ 6.)

Ms. Ellorin also testifies that Mr. Soden would touch her coworker, Martha, on her arms and hands ( id. ¶ 7), and she was told he had slapped another coworker on her buttocks and afterwards was " very flirty" ( id. ¶ 11).

During the first week of March 2012, Ms. Ellorin testifies that Mr. Soden asked her to go out with him for a second time. ( Id. ¶ 10.) She declined the invitation again, but testifies that Mr. Soden " continue[d] to touch and rub [her] as he came around with increasing frequency." ( Id. ) During the same month, Mr. Soden surprised Ms. Ellorin by standing behind her when she was unaware of his presence and breathing on the back of her neck. ( Id. ¶ 12.) When she turned around, she found Mr. " Soden blowing air on [her] neck and in [her] ear while standing up close and sniffing [her]." ( Id. ) She was startled by Mr. Soden's behavior and screamed loudly. ( Id. ¶ 12.) Ms. Ellorin states that Michelle Gillum, who was Ms. Ellorin's " lead," saw Mr. Soden do this, asked Ms. Ellorin if she was okay, and said, " I saw your reaction and what he did was not right." ( Id. )

In late March or early April, Ms. Ellorin testifies that Mr. Soden told the staff that she was such a good employee that she was " going to become the staff quality assurance person" because Ms. LuAnn Wible needed her help. ( Id. ¶ 14.) Mr. Soden told Ms. Ellorin to give her resume to Ms. Wible. ( Id. ) Ms. Ellorin testifies that Ms. Wible began to train her in the position and that she began performing the job. ( Id. )

Ms. Ellorin states that on May 11, 2012, on her way out the door, Mr. Soden said to her: " Have a good weekend and don't forget to scream my name loud tonight." ( Id. ¶ 16.) Ms. Ellorin reported this and earlier events involving Mr. Soden to her husband. ( Id. ¶ ¶ 13, 16.) On May 14, 2012, Ms. Ellorin's husband, Mr. Shawn Lee, called Applied Finishing and reported Mr. Soden's behavior to Mr. Bickle. ( Id. ¶ 17.) Ms. Ellorin also later reported all of the foregoing events to Mr. Bickle directly. ( Id. )

Prior to the telephone call from Mr. Lee, Mr. Bickle testifies that Ms. Ellorin had never complained to him or any of her other supervisors about Mr. Soden's conduct. (R. Bickle Decl. (Dkt. # 24) ¶ 4.) Indeed, Mr. Bickle states that Applied Finishing had never received a complaint by any female employee concerning Mr. Soden or anyone else. ( Id. ¶ 3.) However, as noted above, Ms. Ellorin has testified that Ms. Gillum, her " lead," observed at least some of Mr. Soden's behavior and told Ms. Ellorin that " what he did was not right." (Ellorin Decl. ¶ 12.)

Following his telephone conversation with Mr. Lee, Mr. Bickle met with Mr. Soden and, without reaching a determination that Mr. Soden had been involved in sexual harassment, counseled him about the company's expectations concerning his conduct. ( Id.; see also Bickle Dep. at 32:17-36:13.)

In addition, Office Manager Pam Bickle also met with other female employees in the plant to investigate whether other employees in the plant had any problems with Mr. Soden. (P. Bickle Decl. (Dkt. # 25) ¶ ¶ 2-9.) Ms. Bickle testifies that almost all of the women in the plant indicated that everything was fine and that they were not uncomfortable with Mr. Soden or his behavior. ( See generally id. ) However, at least one other woman, Ms. Wible, repeatedly complained about Mr. Soden's behavior to Ms. Bickle ( see id. ¶ ¶ 4-5, 9) and another reported that Mr. Soden had " slapped her once on the bottom" albeit prior to Mr. Bickle's conversation with Mr.

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Soden about the company's expectations concerning his conduct ( id. ¶ 7).

The day after Mr. Lee called Mr. Bickle to report Mr. Soden's behavior, Ms. Ellorin testifies that Mr. Soden blew her a kiss as she was on her way to her work area. (Ellorin Decl. ¶ 18.) Three weeks later, another coworker informed Ms. Ellorin that Mr. Soden " had touched her hands and arms and hugged her inappropriately." ( Id. ¶ 19.) Ms. Ellorin also testifies that she overhead Mr. Soden asking another employee out. ( Id. ¶ 21.)

On August 20, 2021, Mr. Lee visited Applied Finishing, talked with Mr. Bickle a second time, and reported Mr. Soden's further conduct. ( Id. ¶ 22; Lee Decl. (Dkt. # 37) ¶ ¶ 5-6; R. Bickle Decl. ¶ 5; Ellorin Decl. ¶ 22.) Mr. Lee testifies that Mr. Bickle did not say anything in response, but " just shook his head and listened." (Lee Decl. ¶ 7.) Mr Bickle testifies that he explained to Mr. Lee the steps he had taken to investigate the complaint and to counsel Mr. Soden concerning his conduct. ( See R. Bickle Decl. ¶ 5.)

Following the second conversation between Mr. Lee and Mr. Bickle, Ms. Ellorin testifies that Mr. Soden " finally stopped his advances but he continued to give [her] angry looks." (Ellorin Decl. ¶ 22.) Nevertheless, Ms. Ellorin testifies that she was never given the quality assurance position that she had been promised, and that the position went instead to another employee, Antonio Martinez. ( Id. ¶ 23.) Mr. Bickle, on the other hand, denies that the quality assurance position was ever created--let alone filled by Mr. Martinez instead of Ms. Ellorin. (R. Bickle Decl. ¶ 2.)

On May 3, 2013, Ms. Ellorin was laid off. (Ellorin Decl. ¶ 24.) Mr. Bickle indicates that Applied Finishing has laid off close to fifty percent of its workforce, and that Ms. Ellorin was laid off because she was the most junior worker in the masking department. (R. Bickle Decl. ¶ 2.)

III. ANALYSIS

In her complaint, Ms. Ellorin alleges four federal claims against both Mr. Soden and Applied Finishing under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. , including (1) sex discrimination based on a hostile work environment (Compl. (Dkt. # 1) ¶ ¶ 32-37); (2) quid pro quo sexual harassment ( id. ¶ ¶ 39-45); and (3) sexual discrimination based on differential treatment ( id. ¶ ¶ 46-50); and (4) retaliation ( id. ¶ ¶ 51-55). She also alleges these four claims against both Defendants under the Washington Law Against Discrimination (" WLAD" ), chapter 49.60 RCW. (Compl. ¶ ¶ 78-101.) Ms. Ellorin alleges several other state law claims as well, including: (1) sexual battery ( id. ¶ ¶ 56-62); (2) intentional infliction of emotional distress ( id. ¶ ¶ 63-67); (3) negligent infliction of emotional distress ( id. ¶ ¶ 68-72), and (4) negligent hiring against Applied Finishing only ( id. ¶ ¶ 73-77). Applied Finishing and Mr. Soden have moved separately for summary judgment with respect to all of Ms. Ellorin's claims and any punitive damages award. ( See generally AF Mot.; Soden Mot.)

A. Standards

Federal Rule of Civil Procedure 56(a) requires the court to grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Entry of summary judgment is appropriate " 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The movant bears the initial responsibility of informing the district court of the

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basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. A moving party without the ultimate burden of persuasion at trial has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue as to any material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Id. at 587. In resolving a summary judgment motion, the evidence of the opposing party is to be believed, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985), and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587.

Both the Ninth Circuit and Washington courts have set a high standard for granting summary judgment in employment discrimination cases. Washington courts have stated that summary judgment " should rarely be granted in employment discrimination cases." See e.g., Sangster v. Albertson's, Inc., 99 Wn.App. 156, 991 P.2d 674, 677 (Wash. Ct. App. 2000).[2] The Ninth Circuit has cautioned that " very little evidence" is needed " to survive summary judgment in a discrimination case, because the ultimate questions 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." Schnidrig v. Columbia Mach, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (internal quotation marks omitted).

B. Individual Liability under Title VII and WLAD

Mr. Soden has moved for summary judgment on all of Ms. Soden's claims under Title VII and WLAD as those claims pertain to him. He asserts that Title VII does not provide for individual liability on the part of employees and that WLAD is not applicable to non-supervisory employees. (Soden Mot. at 3, 11-12.)

1. Mr. Soden's Liability under Title VII

To the extent that Ms. Ellorin is seeking to assert claims against Mr. Soden under Title VII ( see Compl. (Dkt. # 1) ¶ ¶ 32-55), such claims are subject to dismissal because the statute does not provide for individual liability. In interpreting Title VII, the Ninth Circuit has held that the statute only applies to employers, not employees. Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993). " The statutory scheme itself indicates that Congress did not intend to impose individual liability on employees." Id. " Title VII limits liability to employers with fifteen or more employees . . . because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources

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from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees." Id. Thus, as a matter of law, Ms. Ellorin is barred from asserting any claim under Title VII against Mr. Soden. The court, therefore, grants Mr. Soden's motion for summary judgment with regard to his personal liability under Ms. Ellorin's Title VII claims. (Soden Mot. at 3.)

2. Mr. Soden's Liabilty under WLAD

Mr. Soden also asserts that he is entitled to summary judgment with respect to Ms. Ellorin's claims under WLAD because he was not acting in a supervisory capacity. (Soden Mot. at 11-12.) Under the WLAD, " individual supervisors, along with their employers, may be held liable for their discriminatory acts." Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921, 928 (Wash. 2001) (" We hold individual supervisors, along with their employers, may be held liable for their discriminatory acts. The plain meaning of RCW 49.60.040(3), by its very terms, encompasses individual supervisors and managers who discriminate in employment." ). In so holding, the Washington Supreme Court noted that WLAD and Title VII " offer significantly different definitions of the term 'employer'." Brown, 20 P.3d at 926.[3]

In order to be held personally liable under WLAD, a supervisor must have acted " in the interest of [the] employer." Brown, 20 P.3d at 926; see also Jenkins v. Palmer, 116 Wn.App. 671, 66 P.3d 1119, 1121 (Wash. Ct. App. 2003) (under Brown, " managers and supervisors may be personally liable under WLAD when acting in their employer's interest" ). Washington decisions look to such persons' involvement in the employment policy or decisions that result in discrimination and hold them liable for their own discriminatory acts. Id. at 926-28. Here, Mr. Soden was allegedly involved in fulfilling his job-related duties at the time much or all of the conduct at issue occurred. Further, as discussed below, the court concludes that there is an issue of fact concerning Mr. Soden's supervisory status with respect to Ms. Ellorin under the more restrictive Title VII case authority. ( See infra § III.D.) If there is an issue of fact with respect to Mr. Soden's supervisory capacity under Title VII case authority, then there is also one under WLAD's more permissive strictures concerning supervisory status. Accordingly, the court denies Mr. Soden's motion for summary judgment on this issue.

C. Hostile Work Environment under Title VII and WLAD

Claims for gender discrimination based on hostile working environment are recognized under both Title VII and WLAD. See, e.g., Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864 (9th Cir. 2001); Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 120 P.3d 579, 588 (Wash. Ct. App. 2005). Both Applied Finishing and Mr. Soden assert that they are entitled to summary judgment on Ms. Ellorin's claims for hostile work environment because, even if taken at face value, Ms. Ellorin's allegations do not amount to a " severe and pervasive" hostile work environment based on the objective standard of a " reasonable person" in the workplace. (AF Mot. at 5-10; Soden Mot. at 6-11.)

To establish a hostile work environment claim based on sexual harassment, Ms. Ellorin must show that she was subjected to verbal or physical conduct of a sexual nature, that was unwelcome, and that was sufficiently severe or pervasive to

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alter the conditions of her employment and create an abusive working environment. Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir. 2013). In addition, she must show that a " reasonable person" would find the work environment to be " hostile or abusive" and that she in fact found it so. Id. " In analyzing whether the alleged conduct created an objectively hostile work environment, we must assess all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th Cir. 2005). In evaluating the conduct at issue, " [t]he required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted)).

Courts should bear in mind, however, that " Title VII is not a general civility code." E.E.O.C. v. Prospect Airport Services, Inc., 621 F.3d 991, 998 (9th Cir. 2010). " A violation is not established merely by evidence showing sporadic use of abusive language, gender-related jokes, and occasional teasing." Id.

Although it is not binding, Washington courts look to Title VII case law for instruction or persuasive authority in construing WLAD. See Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 693 P.2d 708, 711, n.2 (Wash. 1985); Valdez-Zontek v. Eastmont Sch. Dist., 154 Wn.App. 147, 225 P.3d 339, 354 (Wash. Ct. App. 2010). Accordingly, the court's analysis of federal law applies to Ms. Ellorin's claim for hostile work environment under WLAD as well. See Hardage v. CBS Broadcasting Inc., 427 F.3d 1177, 1183 (9th Cir. 2005); Alonso v. Qwest Commc'ns. Co., LLC, 178 Wn.App. 734, 315 P.3d 610, 616, n.11 (Wash. Ct. App. 2013) (" Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, we may look to federal law for guidance." )

In asserting that it is entitled to summary judgment on Ms. Ellorin's hostile work environment claims, Applied Finishing relies primarily on the Washington Court of Appeals decision in MacDonald v. Korum Ford, 80 Wn.App. 877, 912 P.2d 1052 (Wash. Ct. App. 1996). (AF Mot. at 6.) In MacDonald, the plaintiff complained about the actions of two coworkers. She testified that the first coworker had kissed her once at a New Year's Eve party, but that beyond this single incident he had never treated her in an inappropriate way. MacDonald, 912 P.2d at 1058. The court held that this isolated incident could not support a hostile work environment claim. Id.

The MacDonald plaintiff also testified that a second coworker had a habit of coming up behind her and placing his hand on her back and that he would position himself in the hallway so she would brush against him when she passed. Id. Although the plaintiff found the second coworker's behavior offensive and irritating, she " did not perceive these actions to be sexual harassment at the time they occurred." Id. She also recalled two instances when this coworker used inappropriate language or gestures in her presence, although at least with respect to one of these instances " she was unsure whether [he] meant it to have sexual overtones." Id. Based on this record, the appellate court held that the trial court did not abuse its discretion in concluding that the plaintiff's lawyer lacked a factual basis for pursuing a hostile work environment claim. Id. at 1059.

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Defendants assert that Ms. Ellorin's allegations are similarly mild. For example, Mr. Soden allegedly asked Ms. Ellorin out on a date or for drinks and blew her kisses on more than one occasion. (Ellorin Decl. ¶ ¶ 5-6, 10, 18.) He allegedly told her that she smelled " so good," would notice what she was wearing, and once blew air on the back of her neck and in her ear while standing close and sniffing her. ( Id. ¶ 7; Parker Decl. (Dkt. # 36) Ex. D (" Ellorin Dep." ) at 68.) Once, as she left work for the weekend, he allegedly told her not forget to scream his name loudly that night.[4] (Ellorin Decl. ¶ 12.) The court agrees that these allegations are not as severe as some reported cases in which the plaintiff alleged physical threats or abuse. See, e.g., EEOC v. National Educ. Ass'n, Alaska, 422 F.3d 840, 843 (9th Cir. 2005) (finding triable issue where supervisor frequently shouted profanities at female employees and touched them in a physically threatening manner); Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (finding hostile work environment where employer verbally and physically abused plaintiff because of his race).

Nevertheless, the foregoing allegations of misconduct do not present the complete picture of Ms. Ellorin's allegations. In addition to the foregoing, Ms. Ellorin also testifies to frequent and pervasive touching by Mr. Soden, and it is this conduct which in part distinguishes her allegations from the case in MacDonald [5] or other similar claims.[6] As noted above, the required severity of the alleged conduct can vary inversely to its frequency or pervasiveness. See McGinest, 360 F.3d at 1113. Thus, the conduct at issue need not be as severe when frequency or pervasiveness is high. Ms. Ellorin testified that Mr. Soden provided instructions to her work group " on a daily basis" and that he would " h[a]ng around [her] work area and . . . find a reason to touch [her]" with the same frequency--" on a daily basis." ( Id. ¶ ¶ 4, 7.) She testified that Mr. Soden would " touch [her] hand or grab it tightly, rub [her] arms," stroke her hands or arms, or touch her shoulder, when he visited her area. ( Id. ¶ ¶ 4, 7, 10; Ellorin Dep. at

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62:11-63:3, 67:11-24; Barnes Decl. (Dkt. # 30) Ex. D (" Ellorin Dep." ) at 12:3-18.) She also testified he would touch or stroke the hands and arms of other female employees as well.[7] (Ellorin Dep. at 11:15-12:11.) Thus, the fact that some of Mr. Soden's conduct may not be as severe as other cases is not dispositive of Ms. Ellorin's claims on summary judgment due to the frequency and pervasiveness of his allegedly offensive touching in combination with the other conduct described above.

Applied Finishing and Mr. Soden also argue that they are entitled to summary judgment on Ms. Ellorin's hostile work environment claim because, even if Ms. Ellorin subjectively believes her testimony and was subjectively offended by Mr. Soden's conduct, she has failed to establish that her work environment, when viewed by a " reasonable person" under the totality of the circumstances, was objectively hostile. (AF Mot. at 9-10; Soden Mot. at 11); Westendorf, 712 F.3d at 421. Applied Finishing and Mr. Soden assert the work environment could not have been " objectively" hostile because there is " consensus" among the women who have worked with Mr. Soden that, although he is a friendly guy and a " toucher," he does not behave inappropriately. (AF Mot. at 10; Soden Mot. at 11.)

Even assuming that conducting a poll of fellow workers would be the appropriate method for analyzing whether a workplace was " objectively" hostile, the court is unpersuaded by Defendants' argument. Although some female employees have testified that they never experienced or saw any inappropriate behavior by Mr. Soden ( see Devi Decl. (Dkt. # 27) ¶ ¶ 4-7; Porter Decl. (Dkt. # 29) ¶ 5) or that Mr. Soden's conduct in touching other employees was only " friendly" or " completely innocent" (Gillum Decl. (Dkt. # 25) ¶ 4; Fisher Decl. (Dkt. # 28) ¶ ¶ 5-6), at least one employee has largely corroborated Ms. Ellorin's testimony concerning Mr. Soden's " inappropriate behavior" --including that he blew on female employees' necks and in their ears, asked female employees out for drinks, touched female employees, whispered in their ears, and slapped at least one female employee on her " rear-end" ( see generally Smith Decl. (Dkt. # 35)). Thus, even if there is a " consensus" among Applied Finishing's female employees that Mr. Soden's behavior was not inappropriate, that " consensus" is certainly not unanimous. The foregoing dispute in testimony creates a factual issue that is not appropriate for resolution on summary judgment and is within the jury's province. Viewing the evidence in the light most favorable to Ms. Ellorin, the court finds that Applied Finishing and Mr. Soden are not entitled to summary judgment on Ms. Ellorin's hostile work environment claims under either Title VII or WLAD.

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D. Vicarious Liability under Title VII and WLAD

Applied Finishing argues that the Supreme Court's recent decision in Vance v. Ball State, U.S., 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013), controls with respect to whether Mr. Soden's alleged harassment is imputable to Applied Finishing. (AF Mot. at 10-11.) In Vance, the majority held " that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Vance, 133 S.Ct. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Based on that holding, Applied Finishing argues that Mr. Soden was not Ms. Ellorin's supervisor, did not direct any employee's work, hire or fire anyone, conduct performance evaluations, and did not have the authority to promote, or any other attribute that would make him a supervisor under Vance. Thus, Applied Finishing argues that it cannot be held vicariously liable for Mr. Soden's alleged actions toward Ms. Ellorin. ( See AF Mot. at 10-11.)

Applied Finishing interprets Vance too broadly and the factual record before the court too narrowly. We know from Vance that " [t]he ability to direct another employee's tasks is simply not sufficient" to confer supervisory status. 133 S.Ct. at 2448. " [S]omething more is required in order to warrant vicarious liability." Id. at 2448 (internal quotations omitted). Although the Supreme Court rejected a " more open-ended approach . . . which ties supervisor status to the ability to exercise significant direction over another's daily work," id. at 2443, it nevertheless recognized that supervisor status is not conferred solely by formal designations but also where an alleged harasser has been empowered " to make tangible employment decisions" or " take tangible employment actions" against the victim, id.; see id. at 2448 (" [T]he authority to take tangible employment actions is the defining characteristic of a supervisor . . . ." ).

This point was emphasized by the Vance majority when it confirmed that the alleged harassers in an earlier Supreme Court case, Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), were " supervisors" under Title VII even though they held the same position as the plaintiff. See Vance, 133 S.Ct. at 2446-47, 2446 n.8. According to the Vance majority, the individual defendants in Faragher were " supervisors" because their recommendations with respect to hiring, supervision, and discipline were in practice often followed. See id. Indeed, the Supreme Court made clear that " tangible employment actions can be subject to . . . approval" by higher management. Id. at 2447 n.8.

The Vance Court further recognized that where an employer " attempt[s] to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee." Id. at 2452. Thus, even where an alleged harasser does not have power to take formal actions vis-à-vis the victim, the alleged harasser may have substantial input into those decisions, if he or she is more familiar with the victim's work than the off-site manager with actual direct authority to take the formal action. Id. (citing Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 509

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(7th Cir. 2004)). " Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendation it relies." Vance, 133 S.Ct. at 2452.

When applied to this case, the reasoning of the Vance decision renders summary judgment inappropriate because questions of fact remain about Mr. Soden's supervisory status. Ms. Ellorin has testified that Mr. Soden provided direction or instruction to the production team on a daily basis. (Ellorin Decl. ¶ 4.) Based on the Vance decision, we know that providing direction to other employees alone is not enough to confer supervisory status. Id. at 2448. To make out a claim for vicarious liability, Ms. Ellorin must demonstrate that Mr. Soden could play a significant, possibly determinative role, in such matters as " hiring, firing, failing to promote, [or] reassignment with significantly different responsibilities." Id. at 2443. Although both Mr. Soden and Mr. Bickle have testified that Mr. Soden played no role in hiring, firing or supervising employees, the record is not unwavering in this respect. (Soden Dep at 23:23-24:9; Bickle Dep. at 12:23-24.) Mr. Alligood has testified that Mr. Soden has played a role in hiring employees at the company and that he could make recommendations concerning termination. (Alligood Dep. at 6:3-4; 5:18-6:2; 6:5-10:9.) In addition, Ms. Ellorin testifies that it was Mr. Soden who announced to her team that she was going to be promoted to the quality assurance position and begin training in that position. (Ellorin Decl. ¶ 14.) The fact that Mr. Soden was designated a manager (Bickle Dep. at 12:10-14; Soden Dep. at 23:19-20), who, at least at times, and perhaps " on a daily basis," directed Ms. Ellorin's work (Ellorin Decl. ¶ 4), and (as one owner of the company has testified) played a role in hiring and could make recommendations concerning termination (Alligood Dep. at 5:18-10:9), makes it reasonable to infer that Mr. Soden would have had a significant role in Ms. Ellorin's performance reviews and eligibility for promotion to the quality assurance position. Based on this evidence, the court concludes that Applied Finishing is not entitled to summary judgment on this issue, but rather that it is properly reserved for the jury.[8]

E. Negligence under Title VII and WLAD

Applied Finishing asserts that it is entitled to summary judgment with respect to its own negligence under Title VII and the WLAD. (AF Mot. at 11-13.) " [W]here harassment by a co-worker [as opposed to a supervisor or manager] is alleged, the employer can be held liable only where 'its own negligence is a cause of the harassment.'" Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001) (citing Ellerth, 524 U.S. at 759). " Title VII liability is direct, not derivative: An employer is responsible for its own actions or omissions, not for the coworker's harassing conduct." Swenson, 271 F.3d at 1191-92. Where one coworker allegedly harasses another coworker, the employer may be liable if it knows or should know of the harassment but fails to take steps " reasonably calculated to end the harassment." Dawson v. Entek Int'l, 630 F.3d 928, 938 (9th Cir. 2011); see also 29 C.F.R. § 1604.11(d) (" With respect to conduct between fellow employees, an employer

Page 1086

is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action." ).

Applied Finishing asserts that if Mr. Soden was not Ms. Ellorin's " supervisor" for Title VII purposes, then it is entitled to summary judgment with respect to its own negligence on grounds that it was not on notice of Mr. Soden's behavior until the initial conversation between Ms. Ellorin's husband and Mr. Bickle, and that once the company was on notice, it took reasonable measures to investigate and prevent any further harassment to Ms. Ellorin. (AF Mot. at 11-13.) Once again, the court cannot conclude that Applied Finishing is entitled to summary judgment. First, as detailed above and contrary to Applied Finishing assertions, there is evidence that Ms. Ellorin's " lead" was aware of at least some of Mr. Soden's objectionable conduct prior to Mr. Lee's telephone conversation with Mr. Bickle. ( See Ellorin Decl. ¶ 12.) Second, there is also evidence from which a reasonable juror could conclude that the measures Applied Finishing took after Mr. Lee's telephone call were not reasonably sufficient to stop the alleged harassment. After all, Ms. Ellorin testified that Mr. Soden blew her a kiss just outside of Mr. Alligood's office the morning after Mr. Lee first telephoned Mr. Bickle concerning Mr. Soden's objectionable conduct. ( See Ellorin Decl. ¶ 18.) In addition, she also subsequently heard Mr. Soden asking another female employee out on a date. ( See id. ¶ 21.) Further, there is no evidence that the company considered any step to stop the harassment other than counseling Mr. Soden concerning his behavior and the type of conduct the company expected. Although a reasonable juror could conclude that the company's response was adequate and reasonably executed under the circumstances of this case, such a juror would not be compelled to so conclude. Accordingly, the court denies summary judgment on this issue.

F. Quid Pro Quo Liability

To prove actionable harassment under a quid pro quo or " tangible employment action" theory under Title VII, Ms. Ellorin must show that Mr. Soden " explicitly or implicitly conditioned her job, a job benefit, or absence of detriment on her acceptance of sexual conduct." Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007). WLAD imposes similar requirements with respect to a quid pro quo claim. See Thompson v. Berta Enterprises, Inc., 72 Wn.App. 531, 864 P.2d 983, 986-87 (Wash. Ct. App. 1994) ( " In order to establish quid pro quo harassment under RCW 49.60 an employee must prove (1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment was based on gender and (4) her reaction to the harassment complained of affected tangible aspects of the employee's compensation, terms or conditions of employment." ); see also Pacific Intern'l Grout Co. v. Zinkova, No. 2:12-cv-00778-MJP, 2012 WL 3051771, at *4 (W.D. Wash. July 25, 2012). Applied Finishing and Mr. Soden assert that there is no evidence that Mr. Soden explicitly or implicitly conditioned Ms. Ellorin's placement in the quality assurance position on her acceptance of his unwelcome conduct. (AF Mot. at 14; Soden Mot. at 12-13.) With respect to this claim, the court agrees.

Without some evidence of a causal connection between Mr. Soden's alleged conduct and Ms. Ellorin's alleged job detriment in failing to attain the quality assurance position or being laid off, her quid pro quo harassment claim cannot survive summary judgment. See Copantitla v. Fiskardo Estiatorio, Inc.,

Page 1087

788 F.Supp.2d 253, 298 (S.D.N.Y. 2011). There is no testimony or other evidence before the court that Mr. Soden ever explicitly demanded that Ms. Soden submit to his allegedly offensive conduct. Indeed, Ms. Ellorin herself agreed that Mr. Soden never explicitly told her that she would get her promotion if she agreed to go on a date with him (Ellorin Dep at 67:25-68:4), and she also agreed that he never explicitly told her she would get better benefits or promotions if she agreed to have sexual relations with him ( id. at 76:15-23).

The only evidence of an implicit demand is Ms. Ellorin's testimony that she spurned Mr. Soden's advances and subsequently a male coworker was placed in the quality assurance position and she was laid off. The mere chronological juxtaposition of these events alone, however, is insufficient to raise a genuine issue of fact concerning causation. See, e.g., Dochniak v. Dominium Mgmt. Servs., Inc., No. 06-237 (JRT/FLN), 2007 WL 2669443, at *3 (D. Minn. Sept. 6, 2007) (" The mere timing of [plaintiff's] demotion, one day after refusing [assistant manager's] sexual advances, is not sufficient by itself to support an inference that her refusal was connected to the demotion." ). Although the Ninth Circuit has held that causation may be inferred based on temporal proximity alone in the context of a retaliation claims, see, e.g., Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000), the court finds no instance where the Ninth Circuit has extended this rule to quid quo pro harassment claims.[9]

Even if, however, the court could consider temporal proximity alone to infer causation, Ms. Ellorin's evidence would be insufficient to survive Defendants' motion for summary judgment. Where a plaintiff relies on evidence of temporal proximity, the case law " uniformly hold[s]" that the temporal link " must be very close." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Ms. Ellorin testifies that Mr. Soden " stopped his advances" after August 20, 2012. ( See Ellorin Decl. ¶ 22.) She was not laid off until May 3, 2013. ( Id. ¶ 24.) The more than eight month gap between Mr. Soden's allegedly offending conduct and Ms. Ellorin's termination is too remote to infer causality between the two. See Breeden, 532 U.S. at 273-74 (citing case law concerning causal connection requirement in context of a retaliation case indicating that a three or four month gap is insufficient).

With respect to Ms. Ellorin's failure to attain the quality assurance position, none of the evidence before the court grounds Ms. Ellorin's failure to attain the position or Mr. Martinez's installation in the position to a specific time or period of time. ( See Ellorin Decl. ¶ 23 (" I was never given the Quality Assurance position . . . . Another employee, Antonio Martinez, was transferred to Quality assurance; and he took the position I was promised before I complained." ).

Page 1088

As a result, the court can draw no reasonable inference as to the temporal proximity between the allegedly harassing conduct and her failure to be promoted. See, e.g., Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253, 289-99 (S.D.N.Y. 2011) (" [Plaintiff's] testimony does not ground any of [Defendant's] allegedly harassing behavior in a specific time period, so the Court can draw no reasonable inference as to the temporal proximity of that behavior to [Plaintiff's] alleged firing." ). Accordingly, this evidence is also insufficient to infer causation or avoid summary judgment.

More importantly, however, Ms. Ellorin's own testimony negates any claim that Mr. Soden was implicitly conditioning her promotion on her acquiescence to his conduct. In response to a question concerning whether Mr. Soden had conditioned job benefits or promotions on her acquiescence to his demands, she replied: " No. He didn't say that, and I knew that I was qualified, and that I could earn those promotions anyway on my own." ( Id. at 76:23-25.) Thus, Ms. Ellorin indicates that she believed that she was capable of attaining promotions at Applied Finishing irrespective of Mr. Soden's behavior. In light of this testimony, the court agrees that Applied Finishing and Mr. Soden are entitled to summary judgment on Ms. Ellorin's claim for quid pro quo harassment. There is simply no evidence upon which a reasonable juror could conclude that Mr. Soden either explicitly or implicitly conditioned a job benefit or the absence of a job detriment on her submission to his behavior or demands. Without some evidence of a causal connection between the alleged sexual harassment and the adverse employment actions she alleges, the court must dismiss Ms. Ellorin's quid pro quo sexual harassment claim. The court, therefore, grants Defendants' motions for summary judgment with respect to this claim.

G. Applied Finishing' Affirmative Defense to Vicarious Liability

If a supervisor has sexually harassed an employee, the employer can assert an affirmative defense and avoid liability if it can show that: (1) it took no tangible employment action against the employee; (2) it exercised reasonable care to prevent and correct the harassment; and (3) the employee unreasonably failed to take advantage of preventive or corrective opportunities. Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1183-84 (9th Cir. 2005).

Applied Finishing asserts that it is entitled to summary judgment on this affirmative defense. (AF Mot. at 15-16.) Even assuming that Applied Finishing took no tangible employment action against Ms. Ellorin, it is not entitled to summary judgment on this issue. Applied Finishing asserts that it is entitled to summary judgment because Ms. Ellorin admits that she did not personally complain to Randy or Pam Bickle or Mike Alligood, or even to her lead, Michell Gillum. ( See id. at 15 (citing Ellorin Dep. at 79:16-80:19).) Ms. Ellorin's husband, however, did initially notify the company on her behalf on May 14, 2012--approximately five months after the conduct at issue started. ( See Ellorin Decl. ¶ ¶ 17; see also id. ¶ ¶ 2, 4 (indicating that Ms. Ellorin became a full-time direct employee of the company on January 22, 2012, and " immediately noticed [Mr.] Soden behaving inappropriately towards some female employees . . . ." ).) Further, Ms. Ellorin has testified that even if she did not report the harassment to Ms. Gillum, Ms. Gillum observed it herself.[10] ( See, e.g.,

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Ellorin Dep. at 80:1-5 (" Q: [D]id you ever initiate a conversation with Michelle Gillum about your complaints? . . . A: No. It was Michelle herself who saw it, and that's where it all started." ); see also Ellorin Decl. ¶ 18.) In any event, the fact that she reported the problem through an intermediary (her husband) rather than personally does not entitle Applied Finishing to summary judgment on the affirmative defense. See, e.g., Erickson v. Daimler Trucks N. Am., LLC, No. CV-10-0132-ST, 2011 WL 4753534, at *11 (D. Or. July 20, 2011) (" Even if a plaintiff does not follow reporting requirements of the company's anti-harassment policy, the employer may still be on notice." ) (citing Nichols v. Azteca Restaurant Enters., 256 F.3d 864, 870-71 (9th Cir. 2001)).

Once Applied Finishing was on notice of the alleged harassment (which there is no dispute occurred at least as of the day Mr. Lee spoke with Mr. Bickle on the telephone), it was required to exercise reasonable care to correct the alleged harassment. See Kohler, 244 F.3d at 1181 (" The [reasonable care] prong of the affirmative defense also requires [the employer] to demonstrate that it exercised reasonable care to promptly correct sexually harassing behavior." ). The Ninth Circuit has held that an employer's adoption of an anti-harassment " policy and its efforts to disseminate the policy to its employees establish that [the employer] exercised reasonable care to prevent sexual harassment in the workplace." Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1180 (9th Cir. 2001) see also Ellerth, 524 U.S. at 765. Although Applied Finishing has a policy prohibiting sexual harassment in its employee handbook (Bickle Dep. at 10:5-22), there is no evidence that the employee handbook was in place at the time Ms. Ellorin started working at Applied Finishing or that she ever received a copy (Alligood Dep. at 22:16-23:2). Further, although testimony indicates that the employee handbook was in place before Mr. Soden came to work for the company (Bickle Dep. at 10:5-14), Mr. Bickle does not recall if he reviewed the company's sexual harassment policy with Mr. Soden, told him what it was, or even gave him a copy of it during their counseling session concerning Ms. Ellorin's complaints. ( Id. at 34:13-25, 35:5-10.) Indeed, Mr. Bickle has no specific recollection of ever giving Mr. Soden a copy of the company's policy. ( Id. at 35:11-14.) More importantly, Mr. Soden has acknowledged that although there was a copy of the employee handbook available in the office when he started at the company, he never reviewed it with anyone, including Mr. Bickle or Mr. Alligood. (Soden Dep. at 49:7-50:7.) Finally, after Mr. Bickle's initial counseling session with Mr. Soden, Ms. Ellorin has testified that episodes of the conduct at issue continued. (Ellorin Decl. ¶ ¶ 18-21.) Thus, although Applied Finishing may ultimately be able to establish its affirmative defense at trial, on the record before the court, it is not entitled to summary judgment.

H. Retaliation under Title VII and WLAD

To prevail on her retaliation claim, Ms. Ellorin must show: (1) that she engaged in a protected activity; (2) that she suffered an adverse employment action; and (3) that there is a causal connection between the protected activity and the adverse employment action. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004). The showings required for a retaliation claim under both Title VII and the WLAD are identical, except for the causation element. Under Title VII, Ms. Ellorin must prove that her protected activity was the " but-for" cause of the adverse employment action, while under the WLAD she must merely demonstrate that the protected activity was a " substantial

Page 1090

factor" in the employer's decision to take the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S.Ct. 2517, 2521, 186 L.Ed.2d 503 (2013) (holding that " Title VII retaliation claims require proof that the [employer's] desire to retaliate was the but-for cause of the challenged employment action" ); [11] Allison v. Hous. Auth. of City of Seattle, 118 Wn.2d 79, 821 P.2d 34, 42-43 (Wash. 1991) (rejecting " but-for" standard of causation in favor of more lenient " substantial factor" standard). Once Ms. Ellorin has made out a prima facie case, the burden of production then shifts to Defendants to advance legitimate, nonretaliatory reasons for any adverse actions taken against Ms. Ellorin, then she has the ultimate burden of showing that employer's proffered reasons are pretextual. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994).

Both Applied Finishing and Mr. Soden argue that the court should dismiss Ms. Ellorin's claims for retaliation because she has failed to demonstrate the third element of her prima facie case--a causal connection between her or her husband's complaints about Mr. Soden's alleged harassment and her failure to obtain the quality control position or being laid off.[12] (AF Mot. at 18-20; Soden Mot. at 14.) The court concludes that Ms. Ellorin has failed to raise a genuine issue of material fact regarding this element. Ms. Ellorin provides no direct evidence of but-for causation, and instead asks the court to infer causation from the chain of events. Specifically, following her husband's complaints to Mr. Bickle on May 14, 2012, and August 20, 2012, Ms. Ellorin states that she " was never given the Quality Assurance position that [she] had been promised" and instead " [a]nother employee, Antonio Martinez, was transferred to Quality Assurance" and " took the position [she] was promised before [she] complained." (Ellorin Decl. ¶ 23.) In addition, she states that on May 3, 2013, she was laid off while Mr. Martinez continued to work in the Quality Assurance position. ( Id. ¶ 24.)

The Ninth Circuit has held that causation " may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (" That

Page 1091

an employer's actions were caused by an employee's engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision." ) (internal quotations omitted).[13] The Supreme Court, however, has clarified that for a plaintiff to establish causation in prima facie case of retaliation only on the basis of " temporal proximity between an employer's knowledge of protected activity and an adverse employment action, . . . the temporal proximity must be very close." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam) (citing cases from circuit courts holding that a three-month or four-month time lapse is insufficient to infer causation).

Here, Ms. Ellorin's evidence with respect to temporal proximity is simply insufficient to establish a prima facie case of retaliation, let alone that Applied Finishing's proffered explanation is pretextual. Undisputed evidence establishes that there was a gap of approximately eight months between Mr. Lee's second conversation with Mr. Bickle concerning Mr. Soden's conduct and the date that Ms. Ellorin was laid off. ( See Ellroin Decl. ¶ ¶ 22, 24.) As discussed above, this length of time is simply insufficient to establish causation for a retaliation claim based on the temporal proximity alone. See Breeden, 532 U.S. at 273. With respect to Ms. Ellorin's claim that, prior to her termination, a male employee was promoted to the quality assurance position instead of her, she has not presented the court with specific information concerning when this event occurred. It apparently happened at some point after Mr. Lee's second conversation with Mr. Bickle (August 20, 2012) and before her termination (May 3, 2013), but there is no indication of precisely when Mr. Martinez assumed the quality assurance position. ( See id. ¶ ¶ 22-24.) Absent any evidence that his promotion occurred " very close" to Mr. Lee's second conversation with Mr. Bickle, see Breeden, 532 U.S. at 273, the court concludes that Applied Finishing and Mr. Soden are entitled to summary judgment on this claim. Ms. Ellorin has simply presented insufficient evidence of causation to raise a genuine issue of material fact with respect to her prima facie case of retaliation.[14]

I. Differential Treatment under Title VII and WLAD

Ms. Ellorin's claims that Defendants subjected her to differential treatment because of her sex in violation of Title VII and WLAD. (Compl. ¶ ¶ 46-50, 92-96). Defendants move to dismiss these claims for failure to properly plead or on summary judgment. (AF Mot. at 17; Soden Mot. at 13.)

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Title VII and WLAD claims for disparate treatment are both considered under the burden shifting analysis established by the Supreme Court. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Domingo v. Boeing Employees' Credit Union, 124 Wn.App. 71, 98 P.3d 1222, 1225 (Wash. Ct. App. 2004). Under the McDonnell Douglas framework, the plaintiff first must establish a prima facie case of discrimination. Chuang v. University of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Specifically, plaintiff must show that he or she (1) belongs to the protected class; (2) was qualified for the position; (3) was subject to an adverse employment action; and (4) similarly situated employees outside the protected class were treated more favorably. Id. Next, the burden of production shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Finally, the burden shifts back to the plaintiff to demonstrate that the reason offered by the defendant is a pretext for an underlying discriminatory motive. Chuang, 225 F.3d at 1123. The plaintiff must show that the articulated reason is pretextual " either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Although, as a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment, Chuang, 225 F.3d at 1124, Ms. Ellorin has failed to meet even this low bar with respect to her differential treatment claims. When asked about the claims during her deposition, Ms. Ellorin's attorney objected stating that she could not answer without " the assistance of counsel," and Ms. Ellorin was unable to provide any factual details:

Q: [Your complaint] says that Mike Soden discriminated against you by subjecting you to differential treatment because of your sex. What that says to me is that he favored males over you because you're a female. Am I misinterpreting what you mean?
Mr. Parker: I object to the question, because it can't be answered without the assistance of counsel.
Mr. Barnes: Oh I see, because it's a matter of legal analysis?
Mr. Parker: Correct.
By Mr. Barnes:
Q: You've heard the objection. The question is are you able to answer this without invoking legal doctrine that your lawyer would know about?
A: No.

(Ellorin Dep. 77:22-78:12.)

Despite the objection that questions concerning Ms. Ellorin's differential treatment claims were " a matter of legal analysis," Ms. Ellorin's attorney never discussed the claim in either of the responsive memoranda he drafted to Defendants' motions for summary judgment. ( See generally Resp. to AF Mot. (Dkt. # 33); Resp. to Soden Mot. (Dkt. # 38).) " A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials in pleadings, but 'must set forth specific facts showing that there is a genuine issue for trial.'" MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993) (citation omitted). Neither Ms. Ellorin nor her counsel have done anything to flesh out her differential treatment claim, explain how the facts she alleges conform to the elements of the claim, or explain how her differential treatment claims under Title

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VII and WLAD are different from her hostile work environment or quid pro quo claims. Based on the foregoing, the court finds that Ms. Ellorin has for all intents and purposes abandoned her claims for differential treatment and Defendants are entitled to dismissal.

Further, Ms. Ellorin's differential treatment claims fair no better based on the court's own review of the factual record. An adverse employment action upon which a differential treatment claim may be based includes a significant change in employment status, such as " hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. " A tangible employment action in most cases inflicts direct economic harm." Id. at 762; see also Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (no adverse employment action where the plaintiff " was not demoted, was not stripped of work responsibilities, was not handed different or more burdensome work responsibilities, was not fired or suspended, was not denied any raises, and was not reduced in salary or in any other benefit." ). The only actions in the record that might support this element of the claims include Applied Finishing's failure to place Ms. Ellorin in the quality assurance position and its subsequent decision to terminate her job.

Applied Finishing, however, has countered with legitimate nondiscriminatory reasons for these decisions--namely that the position itself, although discussed, was never created or filled, and Ms. Ellorin was laid off as part of a general downsizing due to poor economic conditions. ( See R. Bickle Decl. ¶ 2; Bickle Dep. at 47:12-48:5.) Indeed, Mr. Martinez, the male coworker that Ms. Ellorin testifies was placed in the Quality Assurance position instead of her, was also subsequently laid off. (12/5/13 Alligood Decl. (Dkt. # 42) ¶ 4.)

The only evidence that Ms. Ellorin can point to as demonstrating that Applied Finishing's proffered explanation is pretextual is Mr. Soden's earlier objectionable conduct. As discussed above, however, the court has already found that Ms. Ellorin has failed to establish that Mr. Soden's conduct is sufficiently close in time to Applied Finishing's alleged promotion of Mr. Martinez or Ms. Ellorin's termination to provide a causal link between the company's actions and Mr. Soden's conduct. ( See supra § III.H.) For the same reasons, the court finds that Ms. Ellorin fails to raise a material issue of fact that a discriminatory reason more likely motivated Applied Finishing or that its proffered explanation concerning her termination or failure to attain the quality assurance position is unworthy of credence.

J. State Law Tort Claims Duplicative of Title VII and WLAD Claims

Defendants move for summary judgment of Ms. Ellorin's state law claims arguing that such claims must be dismissed under Washington law as duplicative of her WLAD claims. (AF Mot. at 18; Soden Mot. at 15.) Washington courts have held that common law tort claims, such as negligent infliction of emotional distress, negligent supervision, and intentional infliction of emotional distress (which is also known as the tort of outrage), that are based on the same facts underpinning a plaintiff's claim for unlawful discrimination, are duplicative of the discrimination claim and therefore must be dismissed. See Francom v. Costco Wholesale Corp., 98 Wn.App. 845, 991 P.2d 1182, 1192-93 (Wash. Ct. App. 2000) (trial court properly dismissed claims for negligent infliction of emotional distress and negligent supervision or retention

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where those claims relied on the same underlying facts supporting plaintiffs' discrimination claim); Haubry v. Snow, 106 Wn.App. 666, 31 P.3d 1186, 1193 (Wash. Ct. App. 2001) (ruling that an 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); see also Anaya v. Graham, 89 Wn.App. 588, 950 P.2d 16, 20 (Wash. Ct. App. 1998) (affirming trial court's dismissal of claim of outrage because it " duplicates the discrimination claim" ). Such claims can " only arise[] when the claim is based on a separate factual basis from the sexual discrimination claim." Haubry, 31 P.3d at 1193. There is no dispute that the same factual allegations that underpin Ms. Ellorin's WLAD claims also underpin her state law claims. ( See generally Compl.) Accordingly, the court grants Defendants' motion for summary judgment with respect to Ms. Ellorin's claims for sexual battery ( id. ¶ ¶ 56-62), intentional infliction of emotional distress ( id. ¶ ¶ 63-67), negligent infliction of emotional distress ( id. ¶ ¶ 68-72), and negligent hiring and supervision ( id. ¶ ¶ 73-77).[15]

K. Punitive Damages

Defendants move for summary judgment with respect to any award of punitive damages under WLAD.[16] (AF Mot. at 21; Soden Mot. at 15.) In Washington, such damages are contrary to public policy and not available under WLAD. Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 919 P.2d 589, 590-91 (Wash. 1996). Accordingly, the court grants Defendants' motion for summary judgment on this issue.

Applied Finishing also moves for summary judgment with respect to any award of punitive damages under Title VII. (AF Mot. at 21-22.) The availability of punitive damages in a Title VII case is governed by statute. Section 1981a(b)(1) of Title 42 provides:

A complaining party may recover punitive damages under [Title VII] against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

42 U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Association, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), the Supreme Court concluded a defendant is appropriately subject to punitive damages if it acts " in the face of a perceived risk that its actions will violate federal law." Id. at 536. Punitive damages " apply in intentional discrimination cases where the plaintiff can show that the employer knowingly or recklessly acted in violation of federal law." Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1197 (9th Cir. 2002) (citing Kolstad, 527 U.S. at 535). Even if the plaintiff makes this showing, the employer may nonetheless " escape punitive damages if it can show that the challenged actions were not taken by senior managers and were contrary to the

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employer's good faith implementation of an effective antidiscrimination policy." Costa v. Desert Palace, Inc., 299 F.3d 838, 864 (9th Cir. 2002) (citations omitted), aff'd on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). It is premature to grant summary judgment on the issue of entitlement to punitive damages. As described above, factual disputes exist with respect to Mr. Soden's status as a supervisor or senior manager and with respect to Applied Finishing timely implementation or distribution of its employee handbook which contained its antidiscrimination policies. Accordingly, the court denies Applied Finishing's motion with respect to punitive damages under Title VII.

IV. CONCLUSION

As described above, the court GRANTS in part and DENIES in part Applied Finishing's motion for summary judgment (Dkt. # 21) and Mr. Soden's motion for summary judgment (Dkt. # 22).


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