Opinion
Case No. 02-1313-KI.
September 10, 2004
Mary A. Betker, The Betker Law Firm, P.C., Vancouver, Washington, Attorney for Plaintiff.
David J. Sweeney, Paul G. Dodds, Brownstein, Rask, Sweeney, Kerr, Grim, DeSylvia Hay, LLP, Portland, Oregon, Attorneys for Defendant.
OPINION
Plaintiff Ramona Arnold brings this action against her former employer, G.I. Joe's Inc., alleging sexual harassment, retaliation and wrongful termination. Before the court is defendant's motion for summary judgment. For the following reasons, I grant the motion.
FACTS
The following facts are taken from the excerpts of plaintiff's deposition. To the extent that plaintiff admitted facts set forth in defendant's concise statement of facts, those facts are also reflected in the following section. As noted by defendant, plaintiff did not file a statement of additional facts as required by the local rules, and accordingly, defendant was unable to reply to each additional fact in accordance with the rules. I have reviewed plaintiff's version of the facts as set forth in her memorandum, and I agree with defendant that plaintiff's recited facts are often not supported by the deposition transcript excerpts cited. Therefore, I have relied on the deposition itself. I also acknowledge defendant's objection to plaintiff's late filing of her opposition materials and defendant's assertion that plaintiff misrepresented the date of service, but I will accept the materials.
Plaintiff was employed by defendant G.I. Joe's as a checker/customer service manager at defendant's Gresham store. Beginning in January 2000, Jim Tusow became the store manager at the Gresham store. Plaintiff reported to Tusow.
Plaintiff believes that Tusow intentionally did things to make her job harder, and plaintiff believes this started about two weeks after he became manager. Plaintiff testified in her deposition that she did not know why or had no opinion as to why Tusow would try to make her job harder.
Tusow was rude to plaintiff on several occasions. Tusow threw plaintiff's schedule at her in front of a customer, which was embarrassing to plaintiff. Plaintiff testified that once Tusow yelled at her, asking "Can't you do a goddamned thing?" Pl. Depo. at 69:17-18. With respect to the latter incident, plaintiff felt that Tusow was acting out of anger and "taking [her] Christianity and using it against [her.]" Pl. Depo. at 70:12-13.
Plaintiff felt that Tusow used foul, inappropriate and offensive language at the workplace. In her deposition, when asked what he said that was inappropriate, plaintiff responded that he used the "F-word." Pl. Depo. at 43:11. The only other examples plaintiff could give were a time when Tusow told others he had a tattoo on his rear end, and a time when Tusow was openly discussing a doctor's visit in which he would be "probed." Id. at 43:20-22. Plaintiff did not take this to suggest any sexual interest in plaintiff but found it inappropriate.
On various occasions, Tusow leaned in close to plaintiff's face while talking to her. Many times when Tusow leaned in close to plaintiff's face he was raising his voice. At no time when Tusow leaned in close to plaintiff's face did Tusow ever say anything indicating he had a sexual interest in plaintiff or anything of a sexual nature. On one occasion, when Tusow was talking close to plaintiff's face, he was angry with her over a scheduling matter and when plaintiff stated she did not receive a particular memorandum, he shoved it at her.
Plaintiff believes that Tusow watched her from a security tower at the store on several occasions. However, plaintiff also admits that the security tower has a one-way mirror and she does not believe she could see into the security tower from the floor of the store to confirm that Tusow was watching her. Plaintiff claims that another employer told her that Tusow told that employee he was going up to the tower to watch plaintiff regarding "theft of company time." Pl. Depo. at 64:21. Plaintiff believes Tusow expressed to another employee that he was concerned about plaintiff using her breaks and lunch periods to drop off and pick up her children from school. Plaintiff also claims that others told her Tusow watched her from the tower.
Plaintiff also observed Tusow standing at the customer service desk, which was located near the front entrance of the store, watching her.
Plaintiff believes that Tusow waited outside the store to watch her leave on several nights that she closed the store. Plaintiff saw a car she believed to be Tusow's car and she saw an individual sitting in the car. On one occasion, plaintiff is positive she saw Tusow's face in the car. Defendant's store closing procedure is that all employees leave the store together; when plaintiff left the store, other employees left with her.
Plaintiff asserts that Tusow grabbed or otherwise touched her arm or shoulder several times when he was trying to get plaintiff's attention to talk with him.
At plaintiff's 20th anniversary party, Tusow put his arm around plaintiff's waist and "acted like [they] were buddies." Pl. Depo. at 55:17-18. He did not say anything inappropriate at that time.
Tusow and plaintiff attended the same human resource management course at Portland State University ("PSU"). During one managers' meeting Tusow said that he and plaintiff were attending school together like high school sweethearts. Tusow laughed and changed the topic, but plaintiff did not find the comment amusing.
Plaintiff believes that Tusow took the same class as she took for the sole purpose of watching her. However, plaintiff does not dispute that Tusow attended five other courses in human resource management at PSU in the spring, summer, and fall of 2001, and obtained a certificate in Human Resource Management in the fall of 2001.
At the conclusions of class one evening, Tusow put his arm on plaintiff's shoulder and said "I'll see you in the morning." Pl. Depo. at 55-56.
On one occasion at work, Tusow, along with another employee, showed plaintiff a magazine that contained a picture of a woman holding her hands over the nipples of her breasts. Tusow offered the magazine to plaintiff "for her boys" and said that there was nothing wrong with it.
Tusow never asked plaintiff out socially, nor did he ever ask plaintiff to have sexual relations with him.
Plaintiff states that she complained to district manager Les Hatton about inappropriate language being used by department manager Juan Parga. Plaintiff also complained to Hatton about Tusow. Although plaintiff could provide very little information about what she said to Hatton regarding Tusow, she claims that she tried to explain to him what Tusow was doing to her. She did not specifically tell him she felt she was being sexually harassed. Hatton was not receptive to plaintiff's complaints and said she was being ridiculous. Plaintiff also tried to talk to Rob Simons, head of Human Resources, over the telephone, but she felt he was not receptive and she did not fully explain what she felt was going on. Plaintiff believes Simons thought she was complaining about work-related discipline. Plaintiff is unsure when these conversations took place.
Some time during mid-2001, Tusow completed an evaluation of plaintiff in which he marked that she needed improvement in several areas.
Plaintiff did not submit the evaluation as evidence, so its exact contents are unknown.
Plaintiff left her employment with G.I. Joe's on June 18, 2001. Plaintiff testified that she quit her employment because other employees were discussing the allegedly poor review that Tusow had given plaintiff, and were placing bets on whether she would return from vacation after receiving the poor review.
Prior to having left G.I. Joe's, plaintiff applied for a job at Safeway and had been given the job conditional on her passing certain tests.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
I. Hostile Work Environment Claim
Under Title VII, it is unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment in the form of a hostile work environment constitutes sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).
To prevail on a hostile work environment claim, a plaintiff must establish a "pattern of ongoing and persistent harassment severe enough to alter the conditions of employment." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). In order to satisfy this requirement, a plaintiff must show that the workplace was objectively and subjectively offensive, and that any harassment took place "because of sex." Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871-72 (9th Cir. 2001) (quoting Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75, 79 (1998))
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court clarified the legal standards that apply to claims under Title VII for sexual harassment.
[I]n order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. We directed courts to determine whether an environment is sufficiently hostile or abusive by "looking 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." Most recently, we explained that Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." A recurring point in these opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment."
These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. . . .Id. at 787-88 (internal citations omitted).
Plaintiff relies exclusively on her deposition as evidence in opposition to defendant's motion. Her deposition testimony is quite vague throughout and does not support the conclusion that a reasonable woman would have found a hostile or abusive environment. For example, plaintiff's belief that Tusow was watching her from the tower and other locations before and after work and that Tusow enrolled in the same class as plaintiff just to watch her, objectively, do not create a hostile work environment. Plaintiff admits that she could not see that Tusow was watching her from the tower and she could only confirm that he was in the parking lot after work on one occasion. Although plaintiff believes that Tusow enrolled in the same class as she did solely to watch her, plaintiff does not deny the fact that Tusow completed several additional classes and obtained a certificate from PSU. Likewise, Tusow leaning in and talking closely or touching plaintiff's shoulder or arm occasionally when speaking with her are not so severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment, the standard necessary for a Title VII claim.
Plaintiff's claim also falls short because she does not provide evidence that any harassment was because of plaintiff's sex. As noted above, in addition to showing that the work environment was both objectively and subjectively hostile, plaintiff must show that any harassment was "because of sex." See Nichols, 256 F.3d at 872. None of Tusow's inappropriate comments or yelling at plaintiff were of a sexual nature. Tusow never asked plaintiff out or otherwise made any sexual advances toward her. The only evidence regarding anything of a sexual nature is plaintiff's testimony that Tusow referred jokingly to plaintiff and Tusow as high school sweethearts and that Tusow showed plaintiff the photograph of a woman covering her breasts in a magazine. The latter incident is the most egregious action taken by Tusow, but even when considered in combination with the other incidents does not rise to the level of altering the conditions of plaintiff's employment.
Even absent evidence of sexually explicit language or other gestures of a sexual nature, plaintiff might still be able to prevail if she offered evidence suggesting that rudeness and anger on Tusow's part were because of plaintiff's sex. "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale, 523 U.S. at 80. The motivation can be a "general hostility to the presence of women in the workplace." Id. Plaintiff simply offers nothing in support of this inference. It is clear that plaintiff and Tusow did not get along. Assuming plaintiff's version of the facts to be true, it is also clear that Tusow yelled and was otherwise rude to plaintiff on several occasions. However, in order to prevail on a Title VII claim, plaintiff must show that she was discriminated against in the form of a hostile work environment on the basis of sex. "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ` discriminat [ion] . . . because of . . . sex.'" Id. (emphasis in original).
The facts of this case, taken in the light most favorable to plaintiff, are quite different than the facts of the cases in which the Ninth Circuit found the conduct at issue to constitute, or raise questions of fact about the existence of, a hostile work environment. See, e.g., Nichols, 256 F.3d at 870 (reversing district court's ruling in favor of defendant after bench trial; finding that a hostile work environment existed where male worker was "[t]hroughout his tenure . . . subjected to a relentless campaign of insults, name-calling, and vulgarities," mocked by supervisor and coworkers, "taunted" by calling him, among other names, a "faggot" and a "fucking female whore" at least once a week and often several times a day); Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999) (holding that for purposes of appeal, plaintiff had established hostile work environment where supervisor, among other things, called her a "butt-kiss," used foul language around her, and told her he was going to spank her; and another supervisor, among other things, frequently grabbed his crotch while speaking with plaintiff, placed his face on her bottom, told her he had sexual dreams about her, placed pin-ups on her desk, attempted to grab her breasts, and knelt down and attempted to put his head between her knees).
In contrast, courts have found that plaintiffs have failed to establish hostile work environment claims with more evidence than that which plaintiff has submitted here. See, eg., Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) (finding no sex discrimination based on hostile work environment despite several comments by supervisor that female employee was a "castrating bitch," "Madonna" and "Regina," and evidence of other difficulties with the supervisor including plaintiff receiving letters from him at home); Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) (holding no reasonable jury would have found race discrimination based on a hostile work environment despite allegations that employer posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, did not provide adequate backup to Latino police officers, provided unsafe vehicles to Latino officers, and kept illegal personnel files on plaintiffs because they were Latinos).
I find that plaintiff has failed to establish that there are triable issues about the existence of a hostile work environment, and accordingly I grant defendant's motion for summary judgment on this claim. I need not reach the issues related to defendant's affirmative defenses.
II. Wrongful Termination Claim
Plaintiff also brings a claim for wrongful termination. Plaintiff was not terminated but instead resigned from G.I. Joe's on June 18, 2001. Therefore, plaintiff's claim is properly viewed as being based on a constructive discharge theory.
In Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2347 (2004), the Supreme Court recently clarified that "to establish `constructive discharge,' the plaintiff must make a further showing [than a hostile work environment]: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response." See also Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) ("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 of constructive discharge: conditions so intolerable that a reasonable person would leave the job.").
Because plaintiff has failed to establish triable issues of fact as to her hostile work environment claim, she is unable to meet the higher standard necessary for her constructive discharge claim. Defendant's motion for summary judgment is granted on this claim.
III. Retaliation Claim
A Title VII retaliation claim does not require that an employee correctly determine that a violation of Title VII has occurred. The Ninth Circuit allows a plaintiff to bring a retaliation claim under Title VII if she reasonably believes that the underlying discrimination is actionable, even if actually it is not. Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994). "The reasonableness of [a plaintiff's] belief that an unlawful employment practice occurred must be assessed according to an objective standard — one that makes due allowance, moreover, for the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases for their claims." Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994), cert. denied, 513 U.S. 1081 (1995). Thus, although I have concluded that plaintiff failed to raise triable issues of fact on her hostile work environment and constructive discharge claims, plaintiff may still have a claim for retaliation.
A plaintiff can establish a prima facie of retaliation under Title VII by establishing the following factors: (1) involvement in a protected activity; (2) an adverse employment action; and (3) a causal link between the activity and the employment action. The causal link can be inferred from circumstantial evidence, such as the proximity in time between the protected activity and the retaliatory employment decision. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1069 (9th Cir. 2003) (only nine days lapsed between complaint and termination). See also Clark County School District v. Breeden, 532 U.S. 268, 273-74 (2001) (citing with approval cases holding that a three month period and a four month period were insufficient to establish causation for a prima facie case when there is no causation evidence beyond the temporal proximity).
Plaintiff's retaliation claim suffers from several shortcomings. First, it is unclear that plaintiff engaged in protected activity. Despite numerous attempts by defendant's counsel to ferret out the details during her deposition, plaintiff could give only vague testimony about what she said to Hatton and Simons regarding any alleged harassment. Nor could plaintiff give the dates of any of these conversations. Viewing the facts in plaintiff's favor, however, I will assume that plaintiff's conversations with Hatton and Simons were sufficient to constitute protected activity.
The next element plaintiff must establish is that she was subjected to an adverse employment action. An adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). "This definition includes actions `materially affect[ing] compensation, terms, conditions, or privileges' of employment." Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (quoting 42 U.S.C. § 2000e-2(a)(1)). The Supreme Court has explained that a tangible employment action "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Plaintiff's retaliation theory is somewhat difficult to decipher with respect to what plaintiff believes constituted the adverse employment action(s) taken against plaintiff. Although not explicitly addressed, plaintiff's summary judgment brief appears to assert that the adverse employment action taken in retaliation was the allegedly negative evaluation completed by Tusow. As noted above, plaintiff did not submit the evaluation as evidence, and I have no way of determining its contents. In her briefing, however, plaintiff concedes that the evaluation did not affect her pay or otherwise cause her economic harm. Plaintiff has failed to show that this evaluation materially affected the terms or status of her employment sufficient to constitute an adverse employment action.
Plaintiff's complaint and deposition testimony appear to advance the theory that Tusow's harassing conduct and plaintiff's constructive discharge were the adverse employment actions to which she was subjected in retaliation for engaging in protected activity. Plaintiff has failed to make the requisite showing, as discussed above, of hostile work environment or constructive discharge, and they do not constitute adverse employment actions for purposes of retaliation.
Finally, even if plaintiff had met the other elements of her prima facie case of retaliation, she offers no evidence, not even testimony regarding the timing of any actions, to support the causal link required.
Plaintiff has failed to establish a prima facie case of retaliation, and accordingly defendant is entitled to summary judgment on this claim.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment (#45) is granted. This case is dismissed with prejudice.
Plaintiff's complaint was originally brought against G.I. Joe's, Jim Tusow, and John Does 1-10. Defendant Tusow was dismissed from the case on May 12, 2004, by stipulation of the parties. Plaintiff never filed returns of service or otherwise pursued claims against any John Doe defendants, and accordingly I dismiss the case in its entirety.