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Wahlman v. Datasphere Technologies, Inc.

United States District Court, W.D. Washington, Seattle

February 27, 2014

REBECCA WAHLMAN, et al., Plaintiffs,
v.
DATASPHERE TECHNOLOGIES, INC., Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court are Defendant DataSphere Technologies Inc.'s ("DataSphere") separate motions for summary judgment against Plaintiff Rebecca Pinto[1] (Pinto Mot. (Dkt. #39)), and Plaintiff Shari Graber (Graber Mot. (Dkt. #37)).[2] 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.

II. BACKGROUND

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.[3] (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. )[4] 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!!!!"[5] ( 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, [6] 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.)[7] 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.)[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.)[9] 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).[10]

III. ANALYSIS

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 make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case." Galen, 477 F.3d at 658.

The purpose of summary judgment is to pierce the pleadings and to assess the evidence in order to see whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 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 (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. However, the court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are "jury functions, not those of a judge." Liberty Lobby, 477 U.S. at 249-50.

Both the Ninth Circuit Court of Appeals 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., 991 P.2d 674, 677 (Wash.Ct.App. 2000).[11] The Ninth Circuit has cautioned that "very little evidence" is needed "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." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (internal quotation marks omitted).

B. Effect of Ms. Graber's Chapter 13 Bankruptcy

DataSphere places great emphasis on the effect of Ms. Graber's Chapter 13 bankruptcy filing. Ms. Graber filed for Chapter 13 bankruptcy on August 2, 2013, and her petition is still pending before the bankruptcy court. ( In re Shari Arlene Graber, W.D. Wash. Bankr. Case No. 13-17084TWD.) DataSphere argues that it is entitled to summary judgment on Ms. Graber's claims due to her pending bankruptcy for two reasons: (1) she failed to properly disclose her employment claims to the bankruptcy trustee; and (2) her claims are property of her bankruptcy estate, and thus, she is not a real party in interest and "lacks standing to pursue her instant claims individually" (i.e., in her own name). (Graber Mot. at 9-10.)

DataSphere's argument is not supported by the facts of this case or the applicable law. Although debtors, like Ms. Graber, have a duty to file a schedule of assets and liabilities as part of a Chapter 13 bankruptcy and a court may impose judicial estoppel on undisclosed claims, Ms. Graber has disclosed her employment discrimination claims. See 11 U.S.C. § 521 (establishing the duty to disclose); Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001) ("Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset."); accord Cannata v. Wyndham Worldwide Corp., 798 F.Supp.2d 1165, 1172 (D. Nev. 2011). Ms. Graber disclosed her employment discrimination claims in Schedule B of her bankruptcy filings; she identifies these claims as "EEOC claims." (Beerman Decl. Ex. C (Dkt. #42-4) at 21.) Courts have held that while "[n]umerous cases hold that the debtor has a duty to prepare schedules carefully, completely, and accurately, " there are "no bright-line rules for how much itemization and specificity is required [on the forms]." In re Mohring, 142 B.R. 389, 394-95 (E.D. Cal. 1992); see also Cusano v. Klien, 264 F.3d 936, 946 (9th Cir. 2001) (requiring Chapter 11 debtor to "be as particular as is reasonable under the circumstances" when itemizing assets in bankruptcy schedules). Additionally, when a party acts in good faith and its creditors have been adequately informed, no threat is posed to the "integrity of the bankruptcy system [which] depends on full and honest disclosure of debtors of all their assets." Hamilton, 270 F.3d at 785. Thus, although Ms. Graber's claims are no longer "EEOC claims" and she does not state all of her employment discrimination claims with specificity, the court concludes that her disclosure is sufficient to avoid judicial estoppel because it gives her creditors and the bankruptcy trustee notice of her claims.

The court is also unpersuaded by DataSphere's second argument-that Ms. Graber has no standing to sue in her own name because she is not a party in interest. ( See Graber Mot. at 10 ("And, unlike a Chapter 7 debtor, while a Chapter 13 debtor retains authority to sue, that authority is confined to authority to sue or be sued only on behalf of the bankruptcy estate. ") (emphasis in original).) Without ruling on the issue, the Ninth Circuit has cited sister circuits for the rule that debtors in the Chapter 11 and Chapter 13 contexts can bring lawsuits in their own names. See In re Disalvo, 219 F.3d 1035, 1039 (9th Cir. 2000) ("In [Chapter 7] liquidation proceedings, only the trustee has standing to prosecute or defend a claim belonging to the estate. The same cannot be said for trustees under the reorganization chapters. In those regimes, the debtor has express authority to sue and be sued.") (emphasis in original) (citing Cable v. Ivy Tech State Coll., 200 F.3d 467, 472 (7th Cir. 1999).) Additionally, in Donato v. Metropolitan Life Insurance Company, the District Court for the Northern District of California held that a Chapter 13 debtor had standing to pursue a pre-petition employment claim against her former employer. 230 B.R. 418, 425 (N.D. Cal. 1999). In its holding, the court relied on decisions from the Second and Third Circuits, both of which held that a Chapter 13 debtor has standing to pursue pre-petition claims because the debtor retains possession of and may use all property in his or her estate during Chapter 13 liquidation. Id. at 425 (citing Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515 (2nd Cir. 1998); Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1209 n.2 (3rd Cir. 1991)); see also 11 U.S.C § 1306(b). The sound reasoning of these courts is persuasive. Although Ms. Graber has filed for Chapter 13 bankruptcy, she retains possession of all property in her estate including her employment claims against DataSphere, and thus, she has standing to bring these claims. Accordingly, the court DENIES DataSphere's motion for summary judgment with respect to this issue.

C. Hostile Work Environment under Title VII and WLAD

Plaintiffs claim they were subjected to a hostile work environment while they were employed at DataSphere. Claims for gender discrimination based on a hostile work environment are recognized under both Title VII and WLAD. See, e.g., Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 875 (9th Cir. 2001). DataSphere asserts that it is entitled to summary judgment on Plaintiffs' hostile work environment claims because, even if Plaintiffs' allegations are true, they do not "rise to the level required to prove an abusive working environment when compared to the types of behavior found to be sufficiently severe under the law." (Graber Mot. at 12; Pinto Mot. at 12.) The court concludes, however, that there is a material factual issue as to whether Plaintiffs' evidence shows that DataSphere's work environment was sufficiently severe and abusive to support their hostile work environment claims.

Hostile work environment claims are based on the existence of an abusive work environment. A hostile work environment exists when the harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Nichols, 256 F.3d at 872. This standard is both objective and subjective. Dawson, 630 F.3d at 939. Plaintiffs must show that a "reasonable person" would find the work environment "hostile or abusive" and that each Plaintiff in fact found it so. Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir. 2013) (citing Faragher, 524 U.S. at 787). "To determine if an environment is sufficiently hostile or abusive... [courts] look at 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.'" Nichols, 256 F.3d at 872 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). "The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct." Id. (citing Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Courts must keep in mind, however, that "Title VII is not a general civility code" and that "evidence showing sporadic use of abusive language, gender-related jokes, and occasional teasing" do not establish violations. E.E.O.C. v. Prospect Airport Serv. Inc., 621 F.3d 991, 998 (9th Cir. 2010).

Hostile work environment claims are similar under Washington and Federal law. Federal cases interpreting Title VII are persuasive authority for the construction of WLAD because the state civil rights statute substantially parallels Title VII. Estevez v. Faculty Club of Univ. of Wash., 120 P.3d 579, 588 (Wash.Ct.App. 2005). Accordingly, analysis of federal law applies with equal force to the WLAD claim. Hardage v. CBS Broadcasting Inc., 427 F.3d 1177, 1183 (9th Cir. 2005); accord Laying v. Twin Harbors Grp. Home Ass'n, No. 05-5260, 2006 WL 197127, at *2 (W.D. Wash. Jan. 24, 2006).

DataSphere argues that neither Ms. Graber's nor Ms. Pinto's testimony involves conduct that is sufficiently severe or pervasive to meet the hostile work environment standard. ( See Graber Mot. at 12; Pinto Mot. at 12.) DataSphere characterizes Ms. Graber's testimony as only involving "several negative encounters with Jones." (Graber Mot. at 13.) Likewise, DataSphere claims that Ms. Pinto's testimony does not show sufficiently severe conduct even though it recognizes her allegations that she experienced "constant' unwelcome conduct during her brief five weeks of work at DataSphere through e-mails she received; profanity such as being called or referred to as a bitch' or cunt'; and being threatened by Antonio Jones." (Pinto Mot. at 12.) Finally, DataSphere also argues that Plaintiffs' allegations regarding offensive e-mails "fail to qualify as severe or pervasive conduct." (Graber Mot. at 13; Pinto Mot. at 12-13.)

DataSphere analogizes to the facts of three cases to support its argument that the complained-of conduct is not sufficiently severe. In Brooks v. City of San Mateo, the court decided that there was no hostile work environment where the alleged harasser forced his hand down the plaintiff's sweater and fondled her breasts one time. 229 F.3d 917, 921-24 (9th Cir. 2000). Similarly, in Kortan v. California Youth Authority, the court held that there was no hostile work environment when a supervisor called female employees derogatory terms in front of the plaintiff on several occasions and called her "Medea." 217 F.3d 1104, 1109 (9th Cir. 2000). Finally, in MacDonald v. Korum Ford, the court affirmed that there was no sufficient factual basis for a hostile environment claim when a co-worker kissed the plaintiff one time at a New Year's party, a second coworker had a habit of placing his hand on the plaintiff's back and brushing past her in the hallway, and a third co-worker used inappropriate language or gestures in the plaintiff's presence twice. 912 P.2d 1052, 1058 (Wash.Ct.App. 1996). In so holding, the MacDonald court relied on the plaintiff's testimony that she did not perceive the second co-worker's actions as "sexual harassment at the time they occurred" and that she was unsure whether the third co-worker meant his inappropriate statements to have sexual overtones. Id. at 1058-59. Additionally, DataSphere cites out-of-circuit, unpublished cases in footnotes for the proposition that "unsavory mass e-mails" that are "inappropriate and unprofessional" do not create a hostile work environment. ( See, e.g., Graber Mot. at 13 n.87 (citing Reed v. Metro. Gov't of Nashville & Davidson Cnty., 286 Fed.App'x 251, 253-54 (6th Cir. 2008)).)

None of these cases control the outcome of this case. Here, Plaintiffs do not provide evidence of a single instance of abusive conduct, or even "several" instances of abusive conduct. Instead, Plaintiffs provide evidence that they were constantly harassed. Plaintiffs testify that they were regularly called derogatory names like "bitch" and "cunt" by a supervisor and a co-worker, and that they were each threatened by the same coworker. ( See Graber Dep at 95, 118; see generally Pinto Dep. at 48-68.) Ms. Graber testified that Mr. Jones threatened her on at least two occasions. (Graber Dep. at 109.) On one of these occasions, Mr. Jones threatened Ms. Graber after she talked to DataSphere's human resources personnel by "pointing at [her], calling [her] a bitch, calling [her] a snitch, " and saying: "I'm untouchable. I'm not going anywhere. I'm getting my own team." ( Id. ) Ms. Graber testifies that on another occasion Mr. Jones called her a bitch and suggested that "he would love to get in the elevator and go downstairs" and get into a physical altercation with her. (Graber Dep. at 96.) Similarly, Ms. Pinto testified that Mr. Jones threatened her on more than one occasion by hitting the wall in her cubicle, calling her a "fucking bitch" and telling her that she was either "fucking worthless" or that she would be kicked off the sales team. (Pinto Dep. at 50-51, 87-91.) Ms. Pinto testified that Mr. Jones called her derogatory names "almost daily." ( Id. at 67.) Plaintiffs also provide evidence that they were sent numerous sexist e-mails by co-workers and managers. ( See Carlson Decl. Ex. D.) Considering all of the circumstances, reasonable minds could differ as to whether this conduct is sufficiently severe to constitute a violation of Title VII and WLAD. See E.E.O.C. v. Nat'l Educ. Ass'n of Alaska, 422 F.3d 840, 847 (9th Cir. 2005) ("Where the conduct in question was allegedly a "daily thing, " there can be little question that a reasonable juror might infer that [the harasser's] pattern of verbal and physical intimidation... was sufficiently severe to satisfy the statute.") Plaintiffs' evidence should be weighed by the jury, not by the court. Accordingly, the court DENIES DataSphere's motions for summary judgment with respect to this issue.

1. Vicarious Liability under Title VII and WLAD and the Ellerth/Faragher Affirmative Defense

Next, DataSphere argues that it is not vicariously liable for the conduct of its supervisory employees, like Mr. Mattson, even if there was a hostile work environment.[12] (Graber Mot. at 16; Pinto Mot. at 16.) In order to establish a hostile work environment claim based on sex discrimination, Plaintiffs must show not only that the workplace was permeated with discriminatory conduct sufficiently severe or pervasive as to alter the condition of their employment but also that DataSphere is liable for the hostile environment. See Faragher v. Boca Raton, 524 U.S. 775, 776, 807 (1998). Generally, employers are vicariously liable for the actions of supervisors. See id. at 807 ("An employer is subject to vicarious liability to a victimized employee on an actionable hostile environment created by a supervisor with immediate... authority over the employee."). A supervisor is someone the employer has empowered 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.'" Vance v. Ball State, ___ U.S. ____, 133 S.Ct. 2434, 2443 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

An employer, however, may raise an affirmative defense to avoid vicarious liability. Dawson, 630 F.3d at 940. The affirmative defense (known as the " Faragher/Ellerth " defense) has two prongs: (1) "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and (2) "that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765. "Whether the employer has a stated anti-harassment policy is relevant to the first element of the defense." Nichols, 256 F.3d at 877 (citing Ellerth, 524 U.S. at 765). Furthermore, "an employee's failure to use a complaint procedure provided by the employer will normally suffice to satisfy the employer's burden under the second element of the defense." Id. The Faragher/Ellerth defense is applicable only to vicarious liability claims stemming from a supervisor's harassment. See McGinest v. GTC Serv. Corp., 360 F.3d 1103, 1119 (9th Cir. 2004). The defense is not applicable to claims based on a coworker's harassment. Id.

DataSphere argues that it satisfies the elements of the Faragher/Ellerth affirmative defense, and therefore, that it is not vicariously liable for any hostile work environment. DataSphere argues that its satisfies the Faragher/Ellerth affirmative defense because (1) "DataSphere exercised reasonable care to prevent workplace harassment through its anti-harassment policy, distributed to all employees" (Graber Mot. at 15; Pinto Mot. at 15), (2) "DataSphere took prompt remedial action and effectively ended the alleged offending conduct" (Pinto Mot. at 15), and (3) Ms. Graber "never complained about any conduct to anyone at DataSphere" (Graber Mot. at 15).

DataSphere has provided undisputed evidence that it is entitled to summary judgment on its affirmative defense to vicarious liability for the acts of Mr. Mattson. DataSphere satisfies the first prong of the defense, in part, because it has a workplace anti-harassment policy that it has distributed to all employees. (O'Neil Decl. Ex. A at 2.) This policy was given to both Plaintiffs. (O'Neil Decl. Ex. B at 4-5.) DataSphere's policy defines sexual harassment, sets forth a reporting procedure, states that employees who violate the policy will be disciplined, and assures employees that no reprisals will be made against them for complaining of sexual harassment. ( Id. ) The Ninth Circuit has found that policies with these attributes support the first prong of the affirmative defense. See, e.g., Nichols, 256 F.3d at 877; Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1180 (9th Cir. 2001); Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir. 1999). In addition, once Mr. Mattson's abusive conduct in using the word "bitch" and sending inappropriate emails came to DataSphere's attention, [13] DataSphere promptly investigated the allegations and took remedial action by giving Mr. Mattson verbal and written warnings. (O'Neil Decl. ¶ 20; O'Neil Decl. Ex. H at 9.) Where, as here, an employer has a workplace antiharassment policy, promptly investigates alleged harassment, and takes remedial action, the first prong is satisfied. Montero, 192 F.3d at 862-63; accord Kohler, 244 F.3d at 1181.

DataSphere has also satisfied the second prong of the Faragher/Ellerth defense. This is because neither Plaintiff utilized DataSphere's complaint procedure to protest Mr. Mattson's conduct. ( See Graber Dep. at 106-09, 126; Pinto Dep. at 91-93.) Plaintiffs argue that they did not need to complain about Mr. Mattson's conduct because he was a manager and DataSphere's employment manual requires employees to complain to managers. However, Plaintiffs' argument does not create a factual dispute as to this issue-the law requires employees to take affirmative steps and utilize a company's complaint procedures when supervisor misconduct is alleged. See, e.g., Kohler, 244 F.3d at 1182. Thus, DataSphere is entitled to summary judgment in its favor on the issue of its vicarious liability for Mr. Mattson's conduct because it has provided undisputed evidence sufficient to establish its affirmative defense as a matter of law. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003) (affirming summary judgment on employer's Faragher/Ellerth affirmative defense). Accordingly, the court GRANTS DataSphere's motions for summary judgment on the issue of its vicarious liability for Mr. Mattson's conduct.

2. Negligence under Title VII and WLAD

Even if it is not vicariously liable, DataSphere may still be liable in connection with Mr. Jones' conduct. Although DataSphere seems to argue in its motions that its Faragher/Ellerth affirmative defense forecloses all liability ( see Graber Mot. at 14-16; Pinto Mot. at 14-16), it can still be liable for the harassment of a co-worker if it was negligent in failing to end the harassment. The question of whether DataSphere was negligent in failing to end the harassment of Mr. Jones, Plaintiffs' co-worker, is appropriate for a jury to decide.

In this context, DataSphere would be held liable if it acted negligently. The rule is that, "where harassment by a co-worker is alleged, the employer can be held liable only where its own negligence is the cause of the harassment." Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001). Generally, 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, 630 F.3d at 938. "The reasonableness of the remedy depends on [the employer's] ability to: (1) stop harassment by the person who engaged in harassment;' and (2) persuade potential harassers to refrain from unlawful conduct.'" Nichols, 256 F.3d at 875 (quoting Ellison, 924 F.2d at 882). Although "the most significant immediate measure an employer can take... is to launch a prompt investigation... the fact of investigation alone' is not enough." Swenson, 271 F.3d at 1193 (citing Fuller v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995)).

Factual disputes prevent summary judgment on this issue. Specifically, there is a material factual issue as to whether DataSphere should have known about Mr. Jones' offending conduct and whether DataSphere was negligent for not having taken remedial action sooner. DataSphere contends that "it is undisputed that, once Pinto reported Jones' alleged harassment on October 11, 2011, [it] took prompt remedial action and effectively ended the alleged offending conduct." (Graber Mot. at 15; Pinto Mot. at 15.) However, both Plaintiffs testify that Mr. Mattson, their supervisor and a manager in the company, witnessed Mr. Jones conduct toward them and took no action. ( See Resp. at 3-4; Pinto Mot. at 12.) Thus, it is disputed whether Mr. Jones' conduct in front of Mr. Mattson constituted notice to DataSphere of the harassing behavior, and whether DataSphere is negligent for taking no action when Mr. Mattson witnessed such conduct. ( See Resp. at 12.)

DataSphere's argument to the contrary is unavailing. DataSphere states that "Graber's admitted recommendation of Jones for the Team Captain role coupled with her admitted failure to ever complain while employed with DataSphere gave Mattson objective reasons to believe that Graber did not regard herself as the victim of a sexually hostile working environment." (Graber Reply at 8; Pinto Reply at 8.) Ms. Graber's recommendation and failure to complain that she was being sexually harassed does not mean that DataSphere was not on notice of Mr. Jones' improper behavior toward either Ms. Graber or Ms. Pinto, especially when Mr. Mattson witnessed Mr. Jones' inappropriate conduct. Additionally, Ms. Pinto testifies that Mr. Jones' inappropriate conduct toward her continued even after Mr. Hartnett talked to him about his September 30, 2011, verbal outburst. In relation to the incident, she states "[Mr. Jones] came out [after meeting with Mr. Hartnett] and said I'm untouchable'... [a]nd paraded around and made a big deal of how he could do whatever he wanted." (Pinto Dep. at 51-52.) Afterward, Mr. Jones continued to call Ms. Pinto a "fucking bitch." ( See Pinto Dep. at 56.) The question of DataSphere's negligence in addressing and ending Mr. Jones' hostile behavior are appropriate issues for a jury to decide. Accordingly, the court DENIES DataSphere's motions to the extent that it seeks summary judgment on the issue of its own negligence with respect to Mr. Jones' conduct.

D. Constructive Discharge under Title VII and WLAD

DataSphere may also be liable for constructive discharge. The federal and Washington standards for constructive discharge are similar. In Washington, "while resignations are presumed to be voluntary, a plaintiff may overcome that presumption... by demonstrating a deliberate act by the employer that made her working conditions so intolerable that a reasonable person would have felt compelled to resign." Washington v. Boeing, 19 P.3d 1041, 1049 (Wash.Ct.App. 2000). Likewise, the federal standard requires a plaintiff to "show that the abusive working environment became so intolerable that [its] resignation qualified as a fitting response." Penn. State Police v. Suders, 542 U.S. 129, 133 (2004). This is an objective standard. Id. at 146-47. Furthermore, "[a] plaintiff alleging constructive discharge must show some aggravating factors, such as a continuous pattern of discriminatory treatment." Schindrig, 80 F.3d at 1412 (citing Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990)). The Ninth Circuit has "upheld factual findings of constructive discharge when the plaintiff was subjected to incidents of differential treatment over a period of months or years. Watson v. Nationwide Ins., Co., 823 F.2d 360, 361 (9th Cir. 1987). However, the Faragher/Ellerth affirmative defense is also available to employers where the constructive discharge is based on supervisor harassment. Suders, 542 U.S. at 134. Constructive discharge claims usually present a question of fact appropriate for the jury to decide. Id. at 362.

Plaintiffs provide sufficient evidence to create a material factual issue of whether constructive discharge occurred. In arguing for summary judgment on this issue, DataSphere emphasizes that Plaintiffs resigned voluntarily, and that constructive discharge claims are not available where a plaintiff has failed to prove that a hostile work environment existed. ( See Graber Mot. at 16-19; Pinto Mot. at 16-19); see also Brooks, 229 F.3d at 930-31 ("Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard for constructive discharge...."). These arguments are unpersuasive because Plaintiffs provide sufficient evidence to overcome the presumption of voluntary resignation, and because they provide evidence showing, at minimum, a material factual dispute about the existence of a hostile work environment, as already discussed. Plaintiffs both claim they were subjected to harassing, threatening, and discriminatory conduct by their co-worker, Mr. Jones, over a period of months and that DataSphere did nothing to remedy this harassment.[14] Additionally, both Ms. Graber and Ms. Pinto testify that they had serious incidents with Mr. Jones that closely preceded their resignation; these incidents suggest a causal link between Mr. Jones' conduct and their decision to leave DataSphere. (Pinto Dep. at 81-91; Graber Dep. at 100-101.) The length of time between incidents of harassment is relevant to whether there is a causal link. See, e.g., Wood v. GCC Bend, LLC, 270 Fed.App'x 484, 485 (9th Cir. 2008) (five-month lapse between "workplace embarrassment" and resignation could not support a finding of causation between the two events). Mr. Jones' ongoing harassment creates a material factual issue of whether Plaintiffs were constructively discharged. A reasonable jury could conclude that Mr. Jones' behavior and DataSphere's failure to control this behavior created an environment in which a reasonable person would feel compelled to resign. Accordingly, the court DENIES DataSphere's motions for summary judgment with respect to this claim.

E. Differential Treatment and Retaliation under Title VII and WLAD

DataSphere is entitled to summary judgment on Plaintiffs' differential treatment and retaliation sex discrimination claims. Summary judgment is appropriate because Plaintiffs have failed to provide evidence establishing a prima facie case for either of these claims. To prevail on their retaliation claims, Plaintiffs must show: (1) that they engaged in a protected activity; (2) that they suffered an adverse employment action; and (3) that there was 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. Ellorin v. Applied Fishing, Inc., No. C12-1923JLR, 2014 WL 498969, at *9 (W.D. Wash. Feb. 7, 2014) (stating that Title VII requires "but-for" causation, while WLAD only requires that discrimination be a "substantial factor" in causing the retaliatory conduct).

Additionally, differential treatment claims under Title VII or WLAD are considered under the burden shifting analysis established by the Supreme Court. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Plaintiffs can establish a prima facie case by showing: (1) that they belong to a protected class; (2) that they were qualified for the position; (3) that they were subjected to an adverse employment action; and (4) that similarly situated employees outside the protected class were treated more favorably. Id .; Domingo v. Boeing Employees' Credit Union, 98 P.3d 1222, 1225 (Wash.Ct.App. 2004). 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 pretext for an underlying discriminatory motive. Chuang, 225 F.3d at 1123.

Plaintiffs do not show facts establishing their differential treatment and retaliation claims. Specifically, Plaintiffs provide no evidence showing that either experienced an "adverse employment action, " a necessary element of the prima facie case for both claims. ( See Graber Mot. at 19-22; Pinto Mot. at 21-23.) Adverse employment actions are significant changes in employment status and include, "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. It is an action that "materially affects the compensation, terms, conditions, or privileges of employment." Campbell v. Knife River Corp.-Nw., 783 F.Supp.2d 1137, 1149 (D. Or. Mar. 8, 2011) (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); cf. Kortan, 217 F.3d at 1113 (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 any other benefit"). Additionally, constructive discharge is not an adverse employment action. See Suders, 542 U.S. at 149.

Plaintiffs do not provide any evidence that they had an adverse employment action taken against them. They provide no evidence that they were fired, not promoted, reassigned with different responsibilities, or had their benefits decreased. ( See Graber Dep.; Pinto Dep.) The closest thing to an adverse employment action Ms. Pinto testifies to is that she was assigned to a different sales team. (Pinto Dep. at 97-100.) However, "not every transfer adversely affects [a] victim's employment." Swenson, 271 F.3d at 1194. "If [the employer] decides to separate the two employees in the workplace, the employer may properly consider the relative ease of moving them and their respective importance to its business operations... [it] has wide discretion in choosing how to minimize contact between the two employees, so long as the accuser is not moved to an objectively less desirable position." Id. Here, Ms. Pinto was moved to a different team on a different floor of DataSphere's offices, she was given the same role and benefits on her new team, and DataSphere provided evidence that this move was intended to prevent Mr. Jones from bothering her. ( See O'Neil Decl. ¶ 11 ("To prevent further negative interactions between Mr. Jones and Ms. [Pinto] we moved [her] to a different team where Mr. Jones could not bother her.").) Even if DataSphere's conduct toward Ms. Pinto did rise to the level of an adverse employment action-which it does not-DataSphere presents a legitimate, non-discriminatory reason for the move. ( See id. ) Ms. Pinto provides no evidence that DataSphere's proffered reason is pretext for a discriminatory motive. ( See Dkt.) Furthermore, Ms. Graber does not allege that DataSphere took any adverse employment action against her; she only testifies that she was "disciplined" by Mr. Jones yelling and threatening her. (Graber Dep. at 95-96.) Neither Plaintiff was fired. (Pinto Dep. 140-42; Graber Dep. 151-52.) Plaintiffs have failed to show any adverse employment actions, and therefore, they do not establish prima facie cases of differential treatment and retaliation. Accordingly, the court GRANTS DataSphere's motions for summary judgment on these claims.

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

Last, DataSphere argues that Plaintiffs' state law tort claims are duplicative of their WLAD claims and must be dismissed under Washington law. ( See Graber Mot. at 22-23; Pinto Mot. at 23-24.) Washington courts have held that common law tort claims, such as negligent and intentional infliction of emotional distress, and negligent supervision or retention, are duplicative and must be dismissed when they are based on the same facts as a discrimination claim. See Francom v. Costco Wholesale Corp., 991 P.2d 1182, 1192-93 (Wash.Ct.App. 2000) (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 Ellorin, 2014 WL 498969, at *18 (W.D. Wash.) (granting summary judgment and dismissing plaintiff's negligent and intentional infliction of emotional distress claims, negligent hiring and supervision claims, and sexual battery claim as duplicative of state-law employment discrimination claim). Separate WLAD claims and state tort claims can only arise "when the claim is based on a separate factual basis from the sexual discrimination claim." Haury v. Snow, 31 P.3d 1186, 1193 (Wash.Ct.App. 2001). At oral argument, Plaintiffs conceded that many of their tort claims and their WLAD claims are based on overlapping facts, but Plaintiffs also argued that there were some e-mails that, if not sexist in nature, were disturbing and supported their emotional distress claims. The court is satisfied that Plaintiffs' emotional distress claims are based on these nonsexist e-mails, and thus, these claims are supported by different facts than Plaintiffs' WLAD claims. As to Plaintiffs' other claims, however, there is no dispute that Plaintiffs rely on the same facts to support their WLAD discrimination claims and state law tort claims for negligent hiring, supervision, and training. Thus, these claims are duplicative of Plaintiffs' discrimination claims. (Compl. ¶¶ 31-38.) Accordingly, the court GRANTS DataSphere's motions for summary judgment as to Plaintiffs' negligent hiring, supervision, and training claims.

IV. CONCLUSION

For the reasons discussed, the court GRANTS in part and DENIES in part DataSphere's motions for summary judgment against Ms. Graber (Dkt. #37) and Ms. Pinto (Dkt. #39). The court GRANTS DataSphere's motions for summary judgment with respect to: (1) Plaintiffs' hostile work environment claims based on DataSphere's vicarious liability for Mr. Mattson's conduct; (2) Plaintiffs' differential treatment and retaliation claims; and (3) Plaintiffs' state tort claims for negligent hiring, supervision, and training. However, the court DENIES DataSphere's motions for summary judgment on Plaintiffs' other claims. Specifically the court DENIES DataSphere's motions for summary judgment with respect to: (1) Plaintiffs' hostile work environment claims based on DataSphere's negligence concerning Mr. Jones' conduct; (3) Plaintiffs' constructive discharge claims; and (4) Plaintiffs' state tort claims for emotional distress.


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