United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on a motion from Defendant Bellingham Cold Storage Co., LLC ("BCS") for summary judgment. No party requested oral argument; the court finds oral argument unnecessary. For the reasons stated herein, the court GRANTS the motion in part and DENIES it in part. Dkt. # 13. The court sets May 6, 2014 as the date for a bench trial and April 10, 2014 as the deadline for submission of motions in limine.
Because the court considers this dispute on BCS's motion for summary judgment, it summarizes the evidence by resolving all disputed facts in favor of the Plaintiff, Peter Sines. In doing so, the court does not suggest an opinion on who would prevail on those disputes of fact at trial.
Peter Sines came to work at BCS in August 2010 as a dock clerk in the "fish house" portion of a large warehouse facility. The fish house processed fish orders for delivery.
Almost immediately after he began working at BCS, Mr. Sines had unwelcome interactions with Eduardo Fajardo, a co-worker who operated a forklift in the fish house. Within a week, Mr. Fajardo pulled down the front part of his pants, exposing at least his pubic hair, and said, in essence, "hey, Peter, I got something for you." Sines Depo. at 121, 125. He repeated that gesture at least a dozen times in 2010. Sines Depo. at 125. On five or more occasions, Mr. Fajardo pointed at Mr. Sines and moved his head in a simulation of oral sex. Sines Depo. at 120-121, 123. On one occasion, Mr. Fajardo put Mr. Sines's hands on the area of Mr. Fajardo's pants covering his genitals and asked to "borrow [his] hand" for the purpose of masturbating. Sines Depo. at 121, 129; Sines Decl. (Dkt. # 21) ¶ 4. Mr. Fajardo also extended his middle finger at Mr. Sines hundreds of times in 2010. Sines Depo. at 123.
Mr. Sines contends that he complained to his supervisor, Mike Coggins, several times in 2010 about Mr. Fajardo's sexual harassment. Sines Decl. ¶ 4. With one exception, he offers no specific evidence about the timing of those complaints, and he does not differentiate them from complaints that he made about Mr. Fajardo's work performance. The court must infer that Mr. Coggins was aware of at least some friction between the two men, because he admits that he moved Mr. Fajardo to work in another part of the BCS facility to keep him separated from Mr. Sines. Coggins Decl. (Dkt. # 16) ¶ 4. It is plain, however, that Mr. Sines made complaints about Mr. Fajardo other than the complaints of sexual conduct. That, plus Mr. Sines's admission that he did not report Mr. Fajardo's simulations of oral sex until he reported the incident where Mr. Fajardo placed Mr. Sines's hands on his crotch, suggest that his complaints of sexual misconduct came later, perhaps as late as November 2010. Sines Depo. at 123 ("[The simulations of oral sex] had gone on for a while before I reported that to Mike Coggins when [Mr. Fajardo] sexually assaulted me and I was fed up enough.").
In late November 2010, a series of complaints that had arisen while Mr. Coggins was away from the BCS facility led Mr. Coggins to contact BCS human resources manager Sheryl Hershey for the first time. Coggins Decl. ¶ 5. Mr. Coggins contacted Ms. Hershey on November 22; she received a written complaint from Mr. Sines the following day. Hershey Decl. (Dkt. # 15) ¶ 7. Mr. Sines's written complaint (Hershey Decl., Ex. 4) described Mr. Fajardo's simulations of oral sex, his exposure of his genitals, and the incident where he placed Mr. Sines's hands on his crotch. It did not specify when any of those incidents occurred. It is clear from Mr. Sines's description (in the same complaint) of conflicts with Mr. Fajardo and other co-workers on November 19 and November 23 that none of the sexual incidents occurred on those dates.
Ms. Hershey began an investigation. She interviewed Mr. Sines and fifteen other employees, including Mr. Fajardo. Hershey Decl. ¶ 8. She ultimately concluded that Mr. Fajardo had engaged in "unprofessional conduct" ( id. ¶ 12) and concluded that he should be disciplined. Id. ¶¶ 12-13. She also believed that Mr. Sines should have been disciplined for some of his conduct, but Mr. Coggins convinced her otherwise. Id. ¶ 14. By the time Ms. Hershey concluded her investigation, both Mr. Fajardo and Mr. Sines had been laid off as part of a widespread seasonal reduction in BCS's workforce. Id. ¶ 12. When BCS recalled Mr. Fajardo to work in April 2011, Ms. Hershey suspended him for three days without pay and warned him that he would lose his job for any further misconduct. Id. ¶ 13.
During the investigation, Mr. Sines reported to Mr. Coggins that an employee at "Home Port" had "flipp[ed] [him] off and grabb[ed] his crotch." Sines Depo. at 107. Mr. Coggins approached the employee and threatened to fire him. Id. at 107-08. The employee never gestured at Mr. Sines again. Id.
BCS recalled Mr. Sines to work in July 2011. Mr. Sines declares that when he returned, Mr. Coggins told him that he would have been recalled sooner but for his complaint of harassment. Sines Decl. ¶ 5; Griffin Decl. (Dkt. # 14), Ex. 6 ("[Coggins] told me that I would have been hired back sooner if I had not reported this sex stuff to the EEOC."). Mr. Coggins denies that he said as much, Griffin Decl., Ex. 8, but the court must accept Mr. Sines's version of events on summary judgment.
Mr. Coggins also told Mr. Sines upon his recall that if he had any further problems with his co-workers, he should report to him immediately and he would put a stop to it. Sines Depo. at 169-70 (Q: "[Mr. Coggins's] words were that if anybody messed with you he would come down on them with both feet, right?" A: "Yes, I believe so.").
Mr. Sines does not contend that Mr. Fajardo's sexual misconduct continued in 2011. Sines Depo. at 195-96. Instead, he contends that Mr. Fajardo became insubordinate, repeatedly extending his middle finger at him, telling him to "fuck off" whenever he asked for deliveries, and refusing to perform work. Sines Depo. at 195. Mr. Sines repeatedly asked Mr. Coggins to arrange for him not to work with Mr. Fajardo, but Mr. Coggins refused. Sines Decl. ¶ 9 ("[H]e would just shrug off my concerns and make fun of me.... ...