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Simmons v. Safeway, Inc.

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

August 1, 2019

AVERY SIMMONS, an individual, Plaintiff,
v.
SAFEWAY, INC., d/b/a HAGGEN FOOD AND PHARMACY, a Delaware corporation, Defendant.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN United States District Judge

         THIS 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.

         On May 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 be granted.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         A. BACKGROUND FACTS

         Haggen 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.

         On 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.

         Around 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.

         On October 3, 3017, the Plaintiff accepted a job with Hobby Lobby. Dkt. 61-1, at 4.

         On 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.

         Around 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.

         That 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 28.

         After 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.

         Four 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, at 3.

         On 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.

         After 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.

         On 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 50-51.

         The Plaintiff asserts that, at that point, no one followed up with her about her complaint regarding Mr. Shaffer. Dkt. 50-1, at 32.

         On 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. Dkt. 59-7.

         Even 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.

         That 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.

         The 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.

         On 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.

         On 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.

         On November 7, 2017, Mr. Schaffer was again counseled by Ms. Barker and Mr. Mayes. Dkts. 50-2, at 39 and 53, at 2.

         The Plaintiff filed an Equal Employment Opportunity Commission charge on April ...


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