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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 ...


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