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Easton v. Asplundh Tree Experts, Co.

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

September 12, 2017

RITTANY EASTON, Plaintiff,
v.
ASPLUNDH TREE EXPERTS, CO., Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION TO EXCLUDE EXPERT WITNESS

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter comes before the Court on Plaintiff's Motion to Exclude Testimony of Defendant's Expert Witness Russ Perisho. Dkt. #21. Plaintiff argues that Mr. Perisho's testimony should be excluded because he is not qualified to be a human resources expert, his testimony is unreliable and irrelevant, and his proposed testimony invades the province of the jury. Id. Defendant opposes the motion, arguing that Mr. Perisho is more than qualified to provide his propounded opinions and that he will assist the trier of fact in understanding the issues raised in this lawsuit. Dkt. #25.[1] For the reasons set forth below, the Court disagrees, and GRANTS Plaintiff's Motion to Exclude.[2]

         II. BACKGROUND

         This is an employment action in which Plaintiff raises claims for violations of Washington's Law Against Discrimination (“WLAD”) based on sex (female), intentional infliction of emotional distress, respondeat superior, negligent hiring and supervision and failure to train, and hostile work environment. Dkt. #1-1. Plaintiff alleges that she had been hired by Defendant as a flagger and was subsequently sexually harassed by her male supervisor.[3] Dkt. #1-1 at ¶ ¶ 1-10. Plaintiff further alleges that after she reported the harassing behavior to another foreman and a supervisor, she suffered retaliation, Defendant failed to take appropriate corrective action, and she was eventually laid off. Id. at ¶ ¶ 12-32. Defendant denies those allegations. Dkt. #9.

         On August 9, 2017, Defendant produced the report of its proposed human resources expert, Russ Perisho. Dkt. #21-1, Ex. 2. Mr. Perisho describes himself as “an attorney, hearing officer, and workplace investigator.” Id.at 1. Mr. Perisho summarized his opinions as follows:

1. The Company implemented and publicized appropriate antidiscrimination and antiharassment policies, which were regularly provided to their employees. Based on a review of the records, Asplundh took reasonable steps to publicize the policy with its employees. Asplundh's anti-discrimination anti-harassment policy, if implemented as written, should be considered to be an effective employer program to prevent and address unlawful sex harassment consistent with HR best practices, Washington legal requirements and common-sense considerations.
2. The Company responded reasonably promptly when it learned that harassing and offensive behavior may have occurred which could be in violation of the Company's policies. I conclude based on the available facts that the Company conducted a reasonably prompt investigation, consistent with HR best practices, Washington legal requirements and common-sense considerations.
3. The Company conducted an appropriate investigation to gather and determine the relevant facts. Six employees, including the complainant (Easton) and the alleged harasser (Mel), were interviewed. The records do not suggest that the internal investigator was biased. His position and the record of his investigation suggest that he had the necessary skills to conduct an investigation. The interviews were conducted so that the relevant facts were elicited and recorded with sufficient detail. Thorough and accurate notes were kept. The investigation was promptly initiated and concluded. Based on these facts and other factors, I conclude that the Company conducted a reasonably thorough investigation, consistent with HR best practices, Washington legal requirements and common-sense considerations.
4. The Company took actions that were reasonably calculated to end harassing and offensive behavior. Following the investigation, the Company disciplined Mel for “Violation of No Harassment Policy.” Mel was suspended without pay for five days - one work week. He was told that the next step in discipline would be termination. He was provided with copies of the Company's policies prohibiting discrimination and harassment, which he signed and agreed to follow. Here, given the totality of the circumstances, a one work week suspension is reasonably proportionate to the offense, particularly in light of this being a first offense of the kind in Mel's thirty years working at Asplundh.
Mel was to undergo retraining on the Company's harassment policy. The training requirement was particularly appropriate here. Good training can be valuable in gaining compliance with employer policies prohibiting harassment. A primary disciplinary goal under best HR practices and the law is not punishment; rather, the employer must initiate steps reasonably calculated to provide a harassment-free workplace for its employees and prevent future violations of the employer's policy. That occurred here.

Dkt. #21-1, Ex. 2 at 2-3. Plaintiff objects to Mr. Perisho offering those opinions at trial, and now moves to exclude him.

         III. DISCUSSION

         A. ...


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