United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
JAMES L. ROBART, District Judge.
Before the court are Defendant DataSphere Technologies Inc.'s ("DataSphere") separate motions for summary judgment against Plaintiff Rebecca Pinto (Pinto Mot. (Dkt. #39)), and Plaintiff Shari Graber (Graber Mot. (Dkt. #37)). The court has heard oral argument and considered the motions, all submissions filed in support and opposition thereto, the balance of the record, and the applicable law. Being fully advised, the court GRANTS in part and DENIES in part both motions as discussed below.
This is an employment discrimination case. Ms. Pinto and Ms. Graber contend that they were "exposed to shocking working conditions, including repeated verbal abuse from supervisory employees using sexist slurs, ... [and] sexist and racist e-mail messages that were condoned and encouraged by management" while employed at DataSphere. (Compl. ¶ 12.) Plaintiffs bring federal and state law claims alleging that DataSphere created a hostile work environment and discriminated against them on the basis of their sex. (Compl. (Dkt. #1) ¶ 1.)
The dispute arises from Plaintiffs' employment as sales account executives at DataSphere. DataSphere is an "[i]nternet-based media advertising company headquartered in Bellevue, Washington." (O'Neil Decl. (Dkt. ##38, 40) ¶ 3.) Ms. Graber was hired as an account executive by DataSphere in May 2011, and Ms. Pinto was hired as an account executive in September 2011. (Compl. ¶¶ 5-6.) As account executives, Plaintiffs sold advertising space on local news websites. ( See Graber Dep. (Dkt. ##42-3, 58) at 94; Pinto Dep. (Dkt. ##42-1, 42-2, 61, 62, 63) at 37.) DataSphere's account executives are organized into teams, each with a unique name. (O'Neil Decl. ¶ 3.) Plaintiffs were both members of "The Force." ( Id. ¶ 7.)
Plaintiffs testify that they were sent sexist and sexually explicit e-mail messages during their employment at DataSphere. (Pinto Dep. at 115; Graber Dep. at 117.) These e-mail messages include one in which a manager celebrates a recent sale by saying "[t]he sales are coming in so fast its creepy! Just like this picture." (Resp. (Dkt. #53) at 6; see Carlson Decl. Ex. D (Dkt. #56) at 1.) The accompanying picture depicts a grown man with his pants unzipped facing a little boy; another man's bald head protrudes from the grown man's unzipped pants and seems to be yelling at the little boy. ( See id. ) The bald man appears to symbolize a man's penis and the scene portrays a pedophilic theme. Other e-mails were sent by Plaintiffs' "Sales Manager" Reed Mattson. (Resp. at 6.) In one e-mail Mr. Mattson offers to buy lunch for his sales team if they get five sales, and includes a picture of a naked woman covered in sushi. (Carlson Decl. Ex. D at 9.) Mr. Mattson also sent another e-mail to encourage sales that reads "Get them screamin' Yes' like Sally does... What's in it for you besides the thrill? $200 of course!" and includes a picture of a scene from the film "When Harry met Sally." ( Id. at 16 (emphasis in original).) In the scene and picture, the main female character vocally simulates an orgasm loudly in the middle of a restaurant. ( See id. ) Finally, other e-mails feature rape jokes including one with the text: "[h]e's climbing in your windows[, ] He's snatchin your people up[, ] So Hide your kids, hide your wife[, ] Cause Luke rapin errbody out there!!!!" ( Id. at 2.) Plaintiffs testify that they found these and other e-mails with sexist themes "offensive" and "inappropriate." (Graber Dep. at 117; Pinto Dep. at 107, 111.)
Additionally, Ms. Pinto testifies that her "Team Captain" on The Force, Antonio Jones,  once shot her in the breast with a "Nerf" gun. She states that Mr. Jones walked up to her, pointed the Nerf gun at her, and shot her in the breast. (Pinto Dep, at 75.) Ms. Pinto felt "mortified and humiliated" because of this incident. ( Id. ) With regard to Nerf guns, DataSphere's human resources report states, "Nerf guns are part of DataSphere's casual and fun work environment; employees play with these toys during work hours, including shooting each other in jest." (O'Neil Decl. (Dkt. ##38-4, 40-4) Ex. H at 10.)
Plaintiffs also testify that their Team Captain Mr. Jones and supervisor Mr. Mattson consistently called them derogatory names like "bitch" and "cunt." (Resp. at 2-3; Pinto Dep. at 46-47, 150, 152-53; Graber Dep. at 95-98, 100-02, 109-10, 117-19, 120.) Plaintiffs' testimony is corroborated by Chuck Siegmund, another account executive on The Force, who reported to DataSphere's "Sales Director" Josh Hartnett on September 30, 2011, that Mr. Jones "engage[ed] in obscene verbal outbursts on the sales floor." (O'Neil Decl. (Dkt. ##38, 40) ¶ 8.) Mr. Jones' "verbal outburst" on September 30, 2011, was directed at Ms. Pinto. (Pinto Dep. at 49-50; see also Graber Dep. 104-06.) During this outburst Mr. Jones punched the wall of Ms. Pinto's cubicle, told her that she was "fucking worthless, " and called her a "fucking bitch." (Pinto Dep. at 50-51.) After the September 30 outburst, Mr. Hartnett discussed the incident with Mr. Jones but did not discipline him. ( See O'Neil Decl. Ex. D at 16-17.) After not being disciplined, Mr. Jones announced to the team that he was "untouchable" and that he could do whatever he wanted. (Pinto Dep. at 50-51.) Ms. Pinto was verbally threatened again by Mr. Jones on October 11, 2011, after he found out she imitated him during a team meeting at Mr. Mattson's request. (Pinto Dep. at 87-91.) During the October 11 confrontation, Mr. Jones again called Ms. Pinto a "fucking bitch" and threatened that she would be kicked off the sales team if she imitated him again. (Pinto Dep. at 87.) Following this incident, Ms. Pinto complained to DataSphere's management about Mr. Jones' conduct and ultimately resigned on November 7, 2011. (Pinto Dep. at 91-94; O'Neil Decl. ¶ 16.) Ms. Graber also quit her job at DataSphere during this same timeframe-on October 20, 2011. (O'Neil Decl. ¶ 14.) Ms. Graber quit the day after Mr. Jones threatened her and called her a "fucking bitch" among other expletives, following a meeting she had with DataSphere's "Human Resources Director" Raymond Granaada about Mr. Jones' conduct. (Graber Decl. at 109.) Both Plaintiffs contend that they were "constructively discharged" and forced to resign. (Compl. ¶¶ 19, 21, 25, 29, 33, 37, 41.)
After Mr. Siegmund's and Ms. Pinto's reports, DataSphere assigned Ms. Pinto to a different sales team and investigated Mr. Jones' and Mr. Mattson's conduct. ( See O'Neil Decl. Ex. H. at 6.) In its report on the investigation, DataSphere concluded that Mr. Jones should be given a "stern written warning" and that he should not be considered for any managerial roles. ( Id. at 13-14.) With regard to Mr. Mattson, the report concluded that he should also be given a written warning, "indicating that he could have handled the situation better." ( Id. ) DataSphere's report also concluded that it was unlikely that Mr. Mattson did not know about Mr. Jones' ongoing inappropriate behavior. ( Id. at 8.) Both Plaintiffs also testify that Mr. Mattson knew about Mr. Jones' behavior because he witnessed it. ( See, e.g., Graber Dep. at 95-102, 109-10; Pinto Dep. at 46, 84-86.) Before DataSphere was able to issue a written warning to Mr. Jones, he threatened to "kick the ass" of a male employee, and DataSphere terminated his employment on November 15, 2011. (O'Neil Decl. ¶ 18.)
After leaving their roles at DataSphere, Plaintiffs filed discrimination charges against the company with the Equal Employment Opportunity Commission ("EEOC"). ( Id. ¶ 22.) The EEOC declined to take Plaintiffs' case and issued a right to sue letter. (Compl. ¶ 11.) Thereafter, on November 13, 2012, Plaintiffs filed this lawsuit. ( See generally Compl.) Plaintiffs bring claims for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Washington's Law Against Discrimination ("WLAD"), chapter 49.60 RCW, contending that DataSphere subjected them to a hostile work environment, treated them differentially, and retaliated against them because of their sex. ( Id. ¶¶ 20-30.) Plaintiffs claim that they were constructively discharged because of DataSphere's hostile work environment. ( See id. ¶ 19.) Plaintiffs also bring state law tort claims against DataSphere for intentional and negligent infliction of emotional distress, and negligent hiring, supervision, and training. ( Id. ¶¶ 31-38.) As redress, Plaintiffs seek money damages, injunctive relief, attorney's fees, and punitive damages. ( Id. ¶ 1.)
DataSphere filed separate motions for summary judgment against each Plaintiff with respect to all of their claims on January 16, 2014. ( See Graber Mot.; Pinto Mot.) In its motions, DataSphere argues that there are no material factual disputes and: (1) Plaintiffs' hostile work environment and constructive discharge claims fail because they do not meet the requisite harassment standard and because the complained-of conduct cannot be imputed to DataSphere (Graber Mot. at 11-19; Pinto Mot. at 11-20); (2) Plaintiffs have failed to provide evidence establishing prima facie cases of differential treatment or retaliation (Graber Mot. at 19-22; Pinto Mot. at 20-23); and (3) Plaintiffs' state tort claims are duplicative of their harassment claims and must be dismissed (Graber Mot. at 22-23; Pinto Mot. at 23-24). With respect to Ms. Graber, DataSphere also argues that she does not have standing to bring her claims because she is a debtor in a pending Chapter 13 bankruptcy. (Graber Mot. at 9-11.) Plaintiffs filed a consolidated response on February 5, 2014. ( See Resp.) Plaintiffs argue that there are material factual issues about whether the evidence meets the requisite standard for hostile work environment and constructive discharge claims and also whether the evidence establishes a prima facie case of retaliation. ( Id. at 7-12, 13-14.) Plaintiffs do not rebut DataSphere's argument that they do not establish a prima facie case of differential treatment. ( See generally id. ) Additionally, Plaintiffs argue that there is no legal basis to dismiss their duplicative state tort claims or to dismiss Ms. Graber's claims solely because she is a Chapter 13 bankruptcy debtor. ( Id. at 12-13, 15-16.) DataSphere replied on February 11, 2014, asserting again the arguments in its original motions ( see generally Graber Reply (Dkt. #63); Pinto Reply (Dkt. #66)), and moving to strike some of the evidence relied upon by Plaintiffs in their response (Graber Reply at 7 n.25; Pinto Reply at 2 n.5).
A. Summary Judgment Standards
Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, the non-moving party "must ...