United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR SUMMARY JUDGMENT
J. BRYAN United States District Judge
MATTER comes before the Court on Defendant Safeway, Inc.,
d/b/a Haggen Food and Pharmacy's (“Haggen” or
“Defendant”) Motion for Summary Judgment. Dkt.
49. The Court has considered the pleadings filed regarding
the motion and the remaining file.
14, 2018, Plaintiff Avery Simmons filed this employment
discrimination case in Thurston County, Washington, Superior
Court, in connection with her employment in the deli at
Haggen's Olympia, Washington store. Dkt. 1-2. Haggen
moves for summary judgment on all claims. Dkt. 49. For the
reasons provided below, Haggen's motion (Dkt. 49) should
BACKGROUND FACTS AND PROCEDURAL HISTORY
hired the Plaintiff as a deli worker on February 16, 2017.
Dkt. 12, at 2. The Plaintiff received employee orientation
and a handbook, which contained Haggen's policies
regarding harassment, discrimination, retaliation, mandatory
immediate worker injury reporting, and attendance
requirements (which provided that during a six month period
excessive absenteeism - four or more instances - will be
subject to corrective action). Dkt. 50-1, at 6-10. The
Plaintiff was also a member of a union, and was aware she
could, but did not, file complaints with her union.
Id., at 10-11.
August 24, 2017, the Plaintiff splashed water in her eye
while cleaning up after 9:00 p.m. Dkt. 50-1, at 13. The
following day, the eye appeared swollen, and the Plaintiff
was concerned she had an infection. Id., at 14. She
reported the incident to Haggen on August 26, 2017. Dkt.
50-1, at 15-17. The Plaintiff filled out a formal incident
form on August 27, 2017. Id. On September 3, 2017,
she received a write-up by Lillian Hett, a supervisor,
indicating that her injury resulted from careless work
habits. Id., at 19. Plaintiff also filed a
Self-Insurer Accident Report form and a worker's
compensation claim on September 3, 2017. Dkt. 50-1, at 77.
She received a Personnel Action Notice, dated September 4,
2017, for failing to report the injury right away. Dkt. 50-1,
at 84. The Personnel Action Notice is a form, which includes
a small type-written portion which reads, “additional
or continued violations will subject you to further
corrective action up to and including discharge.” Dkt.
50-1, at 84.
the end of August 2017, Andy Shaffer began working in the
deli with the Plaintiff. Dkt. 50-1, at 21. The Plaintiff felt
uncomfortable around Mr. Shaffer - she asserts that he stared
at her and would stand one to two feet away (too close for
her comfort). Dkt. 50-1, at 22. Although she never told
anyone at Haggen, the Plaintiff felt the way he stared was
like he “was undressing [her] with his eyes.”
Dkt. 59-4, at 41.
October 3, 3017, the Plaintiff accepted a job with Hobby
Lobby. Dkt. 61-1, at 4.
October 16, 2017, around 9:00 a.m. or 10:00 a.m., the
Plaintiff reported to Haggen managers Connie West and Lillian
Hett that Mr. Shaffer was staring at her, following her
around (into the dish room and cooler), and that he made her
feel uncomfortable and unsafe. Dkt. 50-1, at 29-30. According
to the Plaintiff, Ms. West said “That's just how he
is, he stares at me too.” Dkt. 50-1, at 30. The
Plaintiff asserts that Ms. Hett said, “We'll watch
him.” Dkt. 50-1, at 30-31. The Plaintiff wanted them to
talk with Mr. Shaffer immediately about it. Dkt. 50-1, at 31.
lunch time on October 16, the Plaintiff asserts that Mr.
Shaffer took his meal break at the same time she did even
though meal breaks were supposed to be staggered so that only
one deli employee was on break at a time. Dkt. 58, at 2.
same day, October 16, around 1:30 p.m., the Plaintiff
maintains that she was standing in a small hallway looking at
the schedule with another employee, CJ (the employee's
full name is not in the record). Dkt. 50-1, 24. The schedule
and temperature log, which the employees used to keep track
of the temperatures of various deli products to ensure they
comply with health codes, was kept next to the schedule. Dkt.
50-1, at 24. According to the Plaintiff, Mr. Shaffer
“takes his hand and forearm and cups his hand and
touches [her] lower back, and wraps it around [her] waist,
and then reaches for the [temperature] log” for 30
seconds. Dkt. 50-1, at 24-25. She does not know if CJ, the
other employee who was present, saw it. Id. The
Plaintiff maintains that Mr. Shaffer did not need the
temperature log for another 30 minutes. Id. She
asserts that she ran away crying to the dish room. Dkt. 58,
at 2. The Plaintiff did not report to anyone at Haggen that
Mr. Shaffer touched her until October 23, 2017. Dkt. 59-4, at
learning that Mr. Shaffer was making the Plaintiff
uncomfortable with his staring, Ms. Hett counseled Mr.
Shaffer that day (October 16) about how he looked at people
in the store; specifically, that he made co-workers
uncomfortable when he stared at them. Dkts. 53, at 2 and 54
at 2. Mr. Shaffer maintains that no one told him they felt
uncomfortable, that he felt badly, and was only trying to
learn his job by watching others. Dkt. 53, at 2. He denies
touching the Plaintiff. Id.
days later, on the morning of October 20, 2017, the Plaintiff
received two Personnel Action Notices, or “documented
verbal warnings” given to her by Jennifer Barker,
another manager. Dkts. 50-1, at 37 and 52, at 2. One was for
her failure to turn on the soup pots on October 7 and October
15; it was signed by Ms. Barker and Ms. Hett. Id.
The Plaintiff thought she turned the pots on. Dkt. 50-1, at
37. However, she was the only employee that turned the pots
on (Dkt. 50-1, at 38) and she acknowledges that the daily
temperature logs indicated that she failed to do it on those
days (Dkt. 50-1, at 48). The second Personnel Action Notice
or “documented verbal warning” was for excessive
absenteeism. Dkt. 52, at 2. The Plaintiff acknowledges that
she was absent from work on July 30, August 12, August 26
(for her eye injury), September 25, and October 8. Dkt. 50-1,
at 38-39 and 49. Ms. Barker states that she alone decided to
issue the Personnel Action Notices and had no knowledge of
the Plaintiff's complaint regarding Mr. Shaffer. Dkt. 52,
Friday, October 20, 2017 Elizabeth Parkes, in-house counsel
for Haggen, was ill, but was at work. Dkt. 50-2, at 4. The
Plaintiff called and told the Ms. Parkes's assistant (the
person who answered the phone) that she needed to talk to
someone about “sexual harassment.” Dkt. 59-4, at
35. Ms. Parkes was on the phone when her assistant brought
her a note card about the phone call from the Plaintiff about
being sexually harassed. Dkt. 50-2, at 4-5. Ms. Parkes states
that she called the store, spoke to Ms. Hett, and began her
investigation into the Plaintiff's allegations on October
20, 2017. Dkt. 50-2, at 5. After making some notes about the
conversation, she then went home early because she was sick.
Dkt. 50-2, at 6. Ms. Parkes was aware that the Plaintiff and
Mr. Shaffer were not scheduled to work together again until
October 24, 2017. Dkt. 51, at 3.
her conversation with Ms. Parkes, Ms. Hett again coached Mr.
Shaffer about his staring and Haggen's policies, even
though he had not worked with the Plaintiff since her October
16thcomplaint. Dkt. 54, at 2.
Monday, October 23, 2017, at the beginning of her shift, the
Plaintiff states that she talked with Ms. Barker, a manager,
about Mr. Shaffer. Dkt. 50-1 at 32. The Plaintiff maintains
that she reported to Ms. Barker that Mr. Shaffer had touched
her, was staring at her, and she “did not feel safe to
close with him at night.” Dkt. 50-1, at 32. The
Plaintiff did not tell Ms. Barker that she was not going to
come to work the next day - October 24, 2017. Dkt. 50-1, at
Plaintiff asserts that, at that point, no one followed up
with her about her complaint regarding Mr. Shaffer. Dkt.
50-1, at 32.
October 23, 2017, the Plaintiff states she again contacted
Haggen's legal team. Dkt. 50-1, at 32. She maintains that
she was asked to call back later because Ms. Parkes, who was
investigating her complaints, was out sick. Dkt. 50-1, at 40.
The Plaintiff told the assistant who answered the phone, that
in addition to the staring, Mr. Shaffer touched her waist.
though she was at home sick, Ms. Parkes states that she tried
calling the Plaintiff twice on October 23, 2017. Dkt. 50-2,
at 8. She left a message after an automated greeting.
Id. Ms. Parkes had the wrong number; she dialed a
phone number one digit off the Plaintiff's number. Dkt.
51, at 3.
same day, on October 23, 2017, Ms. Parkes called Ms. Hett and
emailed the store. Dkt. 50-2, at 13. Ms. Parkes told Ms. Hett
to counsel Mr. Shaffer and to “get a detailed written
statement” from the Plaintiff. Id. and Dkt.
51, at 4. The email, dated October 23, 2017, marked
“high importance, ” and sent to the store manager
Darren Mayes and Lillian Hett, provides that Ms. Parkes tried
calling the Plaintiff. Dkt. 50-2, at 15 and 32. It further
provides that “[i]f she doesn't call me back
someone will need to get a detailed written statement from
her when she clocks on tomorrow.” Id.
Plaintiff was scheduled to work with Mr. Schaffer on October
24, 2017. Dkt. 50-1, at 41. She did not go to work on October
24th. Dkt. 50-1, at 41. She states that she
communicated to Haggen that she was not working by “not
show[ing] up.” Dkt. 50-1, at 50-51. She did not call
them either. Dkt. 50-1, at 51. She states that she had a
panic attack that day and went to the hospital for suicidal
thoughts. Dkt. 58, at 3.
October 25, 2017, the Plaintiff came into the deli and told
manager Ms. West that she “quit.” Dkt. 50-1, at
52. According to the Plaintiff, Ms. West responded with
“it wasn't even that bad, I thought you were
tougher than that, he didn't even show up last
night.” Dkt. 50-1, at 52. The Plaintiff states that she
“quit, so [she didn't] think [she] was discharged
constructively.” Dkt. 50-1, at 54.
November 7, 2017, the Plaintiff spoke with an in-house
attorney for Haggen, Ms. Parkes. Dkt. 50-2, at 27. Ms. Parkes
told the Plaintiff about the counseling that Mr. Shaffer
received regarding her complaints. Dkt. 50-2, at 28.
November 7, 2017, Mr. Schaffer was again counseled by Ms.
Barker and Mr. Mayes. Dkts. 50-2, at 39 and 53, at 2.
Plaintiff filed an Equal Employment Opportunity Commission
charge on April ...