Opinion
CV-01-466-ST
November 30, 2001
JUDGMENT
Based on the record, IT IS ORDERED AND ADJUDGED that plaintiff take nothing and this action is dismissed with prejudice.
OPINION AND ORDER INTRODUCTION
Plaintiffs, Marie S. Ostin ("Ostin"), Devi Prasad ("Prasad"), and Florencia Tumusok ("Tumusok"), originally filed this action against defendant, Gate Gourmet, Inc. ("Gate Gourmet"), on March 1, 2001, in the Multnomah County Circuit Court, State of Oregon, as Ostin, et al. v. Gate Gourment, Inc., Case No. 01-03-02200. Plaintiffs allege that beginning in July 1999 they were subjected to a hostile work environment at Gate Gourmet's Portland, Oregon facility, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq ("Title VII") and Oregon's parallel statute, ORS Chapter 659.
Gate Gourmet filed a Notice of Removal to this court on April 3, 2001, and has since filed a Motion for Summary Judgment (docket #14). This court has jurisdiction over plaintiffs' Title VII claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367(a). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c).
For the reasons that follow, Gate Gourmet's Motion for Summary Judgment (docket #14) is granted and this action is dismissed.
STANDARDS
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
UNDISPUTED MATERIAL FACTS
Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to plaintiffs. A review of the parties' facts, as well as the other materials submitted by the parties, including deposition excerpts, reveals the following material facts:
Deposition excerpts are identified by the last name of the deponent, and citations are to the page of the deposition transcript.
I. Employment History
Tumusok and Prasad began their employment with Gate Gourmet in December 1993, and remain employed in its Portland facility. Tumusok Depo, p. 10; Prasad Depo, pp. 9-10, 16. Ostin began her employment with Gate Gourmet on April 4, 1997, and voluntarily resigned by a letter submitted to Gate Gourmet on August 21, 1999. Ostin Depo, pp. 47, 120-22 and Ex 8.
II. The Ice Incident
On Saturday, April 17, 1999, two supervisors, Daniel Harrison ("Harrison") and Michael Gleich ("Gleich"), briefly showed each plaintiff a block of ice from the freezer that had naturally formed into a shape resembling a man's penis. Plaintiffs were apparently the only people working the late shift that night. Ostin Depo, p. 88. Harrison and Gleich asked each plaintiff if she "liked" the ice, and each plaintiff responded "no." Id at 76-80; Prasad Depo at 16-18; Tumusok Depo, pp. 13-21. After showing the ice to plaintiffs, Harrison and Gleich returned the ice to the freezer, apparently intending to show it to other employees who would come to work the following morning. Ostin Depo, pp. 81-82; Prasad Depo, p. 18; Tumusok Depo, p. 21.
None of the plaintiffs reported the ice incident to management that day. Ostin Depo, pp. 84-86; Prasad Depo, pp. 22-24; Tumusok Depo, p. 31. None of the plaintiffs was scheduled to work on the Sunday or Monday following the ice incident. Ostin Depo, p. 85; Prasad Depo, p. 19; Tumusok Depo, p. 29.
On Tuesday, April 20, 1999, all three plaintiffs returned to work. Ann Ramsey ("Ramsey"), the storeroom supervisor, noticed that Tumusok was upset and asked Ostin what was wrong. Ostin and Prasad then told Ramsey about the ice incident. Ostin Depo, pp. 85-89; Prasad Depo, pp. 22-23. Ramsey immediately called a meeting with plaintiffs, Harrison, and Gleich. Gleich was not scheduled to work that day, but was called in to discuss the ice incident. During the meeting, Ramsey discussed the inappropriate nature of Harrison's and Gleich's conduct, and Gleich apologized for his behavior. Harrison, however, did not apologize as he did not believe that his conduct was offensive to plaintiffs. Ostin Depo, pp. 90-91; Prasad Depo, pp. 22-26; Tumusok Depo, pp. 30-32. Harrison transferred from the Portland Gate Gourmet facility in July 1999. Ostin Depo, p. 113.
III. Plaintiff Tumusok
In addition to the ice incident, Tumusok alleges two other workplace occurrences in support of her claims. Both incidents occurred within or prior to August 1999. Tumusok Depo, p. 49. Harrison would "sometimes" place his hands on Tumosok for a few seconds, touching her on the shoulder or forearm, holding her hand, and once approaching her from behind and "massaging" her back. Id at 34-35. Tumusok does not recall whether she said anything to Harrison about touching her and did not tell anyone else about it. Id at 35-36. On another occasion, General Manager, Jeff Straight ("Straight"), took a photograph of Tumusok and Ostin eating lunch. He then wrote a comment on the photo "Doing what we do best" and displayed it in the workplace without permission. Id at 34-40.
Tumusok never filed an administrative complaint of discrimination with the State of Oregon or the Equal Employment Opportunity Commission ("EEOC"). Tumusok Depo at 41.
IV. Plaintiff Prasad
Prasad alleges one workplace occurrence, in addition to the ice incident, in support of her claims. Prasad contends that Harrison tried to get her to quit when he informed her that she must change positions and move to the supply room because he had no work for her to do in the pantry. Prasad, however, remained in the pantry and was not required to move to the supply room because she was under lifting restrictions. Prasad Depo, pp. 27-30.
Prasad never filed an administrative complaint of discrimination with the State of Oregon or the EEOC. Id at 35-36.
V. Plaintiff Ostin
In 1999, Ostin received documented disciplinary actions prior to any alleged incidents of harassment. Specifically, on January 6, 1999, Ostin was suspended for five days for her lack of teamwork, substandard performance, and poor attitude when she failed to prepare meals properly and responded "I don't care anymore" to the supervisor who brought the error to her attention. Ostin Depo, pp. 127-28 and Ex 2. On March 18, 1999, Ostin received a written warning for failing to color code and cover food properly. Id, pp. 129-31 and Ex 3.
In addition to the ice incident of April 17, 1999, Ostin alleged a number of subsequent workplace occurrences as grounds for her claims of sexual harassment. Id, Ex 12.
On May 1, 1999, Harrison kicked Ostin's foot and called her "baby." Id at 92-96 and Ex 12. On May 27, 1999, when Ostin requested her paycheck, Harrison inquired if she was on break or at lunch, which is the only permissible time to retrieve checks under Gate Gourmet's policies. Ostin was on break, and, accordingly, she received her check. Id at 96-99 and Ex 10.
On June 5, 1999, Ostin received a final written warning for failing to follow airline specifications and work standards. Id at 131-33 and Ex 4.
On June 17, 1999 Straight offered Ostin a $0.75 per hour raise if she improved her performance and discontinued gossiping with employees for one full month. Id, Ex 11. This offer was made after Ostin spoke to other employees about defendant's termination of former employee Marie St. Luis, and what Ostin perceived as defendant's falsehoods and unfair denial of employment benefits to Marie St. Luis. Id at 67-68. Ostin complied and, on July 17, 1999, received the $0.75 per hour raise. Id at 66-69, 152-53.
On July 17, 1999, Ostin borrowed Harrison's personal knife, which she broke. Harrison asked Ostin to pay him $80.00 to replace the knife, and Ostin complied. Harrison, however, attempted to return the money. Harrison paged Ostin, but she would not respond to the page. Xenia Lavin ("Lavin"), a female supervisor, went to Ostin's work area, and when Ostin refused to comply with her request to report to the office, Lavin grabbed Ostin's arm and led her to the office. Once in the office, Ostin refused to stay and grabbed Lavin's arm and pushed her away from the door. Ostin left the office and returned to her work station. Id at 51-59 and Ex 12.
On July 21, 1999, Straight suspended Ostin pending investigation of the office incident. Ostin continued to refuse to accept return of the $80.00, so Straight returned the money to her via Federal Express. Id at 60-64 and Ex 5. On July 22, 1999, Straight lifted Ostin's suspension and compensated Ostin for the days she was suspended. Id at 64-65 and Ex 12.
On August 14, 1999, Ostin was paged to the office to discuss her refusal to prepare a meal for a flight checker; she received a final written warning for this conduct on August 19, 1999. Id at 134-38 and Ex 6. On August 21, 1999 Plaintiff submitted her letter of resignation. On August 26, 1999, Ostin attempted to rescind her resignation. However, Straight informed her that she had resigned and her position had already been filled. Ostin was paid through September 14, 1999. Id at 120-22, 146.
On May 4, 2000, Ostin filed a complaint of discrimination with the State of Oregon Bureau of Labor and Industries, Civil Rights Division ("BOLI"). Id at 144-48.
ANALYSIS
Gate Gourmet argues that it is entitled to summary judgment either because plaintiffs' claims are time-barred, or because plaintiffs' allegations, even if true, are insufficient to state a claim for hostile work environment harassment.
I. Oregon Claims By Prasad and Tumusok are Time-Barred
Oregon law expressly provides that the "filing of a complaint with [BOLI] . . . shall not be a condition precedent to the filing of a civil suit or action" for unlawful discrimination under ORS Chapter 659. ORS 659.121(3). However, a BOLI complaint or civil action must be "commenced within one year of the occurrence of the alleged unlawful employment practice." Id and 659.040(1). It is undisputed that the unlawful employment practices alleged by each plaintiff took place no later than August 1999. Ostin Depo, pp. 120-22, 146 (Ostin resigned in August 1999); Prasad Depo, pp. 27-30 (describing Harrison's attempt to move her out of the pantry); and Defendant's Concise Statement of Material Facts, ¶ 11 (Harrison transferred out of the facility in July 1999); Tumusok Depo, p. 49.
Prasad and Tumusok never filed an administrative complaint with BOLI or the EEOC. Although Ostin filed an administrative complaint with BOLI on May 4, 2000, and timely commenced her Complaint on March 1, 2001, plaintiffs have offered no authority that the "single filing rule" exception for Title VII claims (discussed below) applies to claims of unlawful discrimination under Oregon law. Because Prasad and Tumusok neither filed an administrative complaint nor initiated a civil action until well over a year after the last alleged unlawful act of discrimination, their claims of unlawful discrimination under ORS Chapter 659 are barred as untimely.
II. Administrative Exhaustion of Title VII Claims
Timely filing of an administrative complaint is a prerequisite to a Title VII suit. 42 U.S.C. § 2000e-5(e). Complaints filed with the EEOC must be filed within 180 days after the alleged unlawful employment practice occurred. Id. If the plaintiff instead first institutes proceedings with a state or local agency, the period of limitations for filing a charge with the EEOC is extended to 300 days. Id.
While the statutory requirement of filing an administrative complaint is subject to waiver, estoppel, and equitable tolling, Sommatino v. United States, 255 F.3d 704, 708 (9th Cir 2001), citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982), Gate Gourmet contends that the Title VII claims of both Tumusok and Prasad are barred because they failed to file an administrative complaint. In response, Tumusok and Prasad assert that the "single filing rule" exception to the filing requirement applies and that the continuing violation doctrine allows this court to consider conduct outside of the relevant limitations period.
A. "Single-Filing Rule" Exception
This district follows the "single filing rule," which is an exception to the requirements for a Title VII suit. Logan v. West Coast Benson Hotel, 981 F. Supp. 1301, 1313 (D Or 1997). Under that exception, "`[w]here a substantially related non-filed claim arises out of the same time frame as a timely filed claim, the complainant need not satisfy Title VII's filing requirement to recover.'" Id, citing EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 (6th Cir 1994). This exception allows the basic purpose of the Title VII filing requirement to be fulfilled by giving notice of potential liability to the alleged wrongdoer and attempting resolution by conciliation through the EEOC. Id at 1313-14.
The "single filing rule" is premised upon the requirement that the claims of the non-filing plaintiff occur in the same time frame as a timely filed claim. The only administrative complaint filed in this case was by Ostin on May 4, 2000. Thus, only those events which took place within the preceding 300 days (i.e. no earlier than July 9, 1999) are "timely" filed for Prasad and Tumusok for purposes of Title VII. 42 U.S.C. § 2000e-5(e)(1).
Not all of the events alleged by Prasad and Tumusok occurred in the same time frame (i.e. after July 9, 1999) as Ostin's timely filed claim. Apart from the ice incident on April 17, 1999, before the relevant time period, the only allegation made by Prasad in support of her claims is Harrison's alleged attempt to get her to quit by telling her she could no longer work in the pantry. Prasad testified that she did not know whether this took place prior to or after the ice incident. Prasad Depo, p. 27.
Tumusok's allegation that Straight took and posted an unflattering picture is identical to the conduct alleged by Ostin within the relevant time period. In addition, Tumusok's remaining allegation that Harrison sometimes put his hand on her shoulder or arm for a few seconds and once massaged her back arguably occurred within the relevant time period because Harrison was still working at Gate Gourmet's Portland facility until some time in July 1999.
Although some of Prasad's and Tumusok's allegations occurred before July 9, 1999, plaintiffs assert that this court may nonetheless consider them under the continuing violation doctrine based on a hostile work environment created by the two supervisory employees (Harrison and Straight).
B. Continuing Violation Doctrine
The continuing violation doctrine allows courts to consider conduct that would ordinarily be time-barred. Anderson v. Reno, 190 F.3d 930, 936 (9th Cir 1999). A plaintiff first "must demonstrate that the untimely incidents are part of a pattern of discrimination and that the [defendant] continued this pattern into the relevant limitations period." Id. A plaintiff can make the requisite showing "by presenting evidence that [the defendant] engaged in a `systematic policy of discrimination' or by presenting evidence of a series of related discriminatory acts directed at her by the [defendants'] personnel." Id, quoting Sosa v. Hiraoka, 920 F.2d 1451, 1455-56 (9th Cir 1990); see also Morgan v. National RR Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir 2000).
Systematic discrimination involves "demonstrating a company wide policy or practice." Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir 1989). Plaintiffs have presented no such evidence. Thus, their claims must be analyzed as a "series of related acts" under the continuing violation doctrine. Under that analysis, the question "boils down to whether sufficient evidence supports a determination that the `alleged discriminatory acts are related closely enough to constitute a continuing violation.'" Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir 1987), quoting Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir 1983).
In addition to the ice incident involving Harrison and Gleich, Prasad alleges that Harrison unsuccessfully tried to oust her from the pantry. While not expressly stated in the record, Prasad's theory seems to be that this conduct was part of an ongoing campaign of harassment directed at all three plaintiffs by two of their supervisors, Harrison and Straight. Similarly, Tumusok's allegations that Straight posted an unflattering photograph of her and Ostin, and that Harrison sometimes touched her on the shoulder or arm and once massaged her back seems to be based on the theory that Harrison and Straight knew that Ostin, Prasad, and Tumusok were friends, and were deliberately targeting them either as a group or individually. The record supports the conclusion that plaintiffs were friends and discussed the events with each other even though they were not personally present at each incident.
Ostin alleges that between July and August 1999, within the limitations period, Harrison insisted that she pay him $80 for a knife she broke, and that Straight posted the photograph of her and Tumusok, offered to increase her wages by $0.75 per hour for not discussing the circumstances of another employee's departure, suspended her pending an investigation of her altercation with Lavin, and refused to let her rescind her resignation. Prior to the limitations period, Ostin alleges that Harrison participated in the ice incident, kicked her foot and called her "baby," and once asked whether she was on a break when she came to pick up her paycheck. She also alleges that Harrison and Straight gave her either written warnings or suspensions for allegedly failing to properly prepare or package meals in January, March, and June 1999. As with the allegations by Prasad and Tumusok, the common thread in Ostin's allegations is that Harrison and Straight were the supervisory perpetrators of sexual harassment.
The Ninth Circuit has reserved a decision on whether a plaintiff must show a discreet discriminatory act within the limitations period, or whether the "ambient and persistent" nature of a hostile work environment combined with the mere presence of the harasser in the workplace and interaction between the plaintiff and the harasser is sufficient to anchor a continuing violations claim within the limitations period. Fielder v. UAL Corp, 218 F.3d 973, 986 (9th Cir 2000), petition for cert filed, 69 USLW 3619 (Mar 7, 2001) (No. 00-1397), citing Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 n1 (9th Cir 1998). In this case, there clearly was some interaction between plaintiffs and the alleged harassers during the limitations period.
Plaintiffs appear to assert that the presence of Harrison and Straight in the workplace and their interactions with plaintiffs during the limitations period is a sufficient anchoring act of discrimination to allow this court to consider the acts outside of the limitations period. This court will give plaintiffs the benefit of the doubt and assume, without deciding, that the presence of Harrison and Straight in the workplace and the interactions they had with plaintiffs during the limitations period is enough to apply the continuing violations doctrine to their allegations. However, as discussed below, even giving plaintiffs the benefit of that assumption and considering their allegations of harassment, they have failed to submit evidence sufficient to support their hostile work environment claims under both Oregon law and Title VII.
III. Sufficiency of the Allegations Under a Hostile Work Environment Theory
A. Legal Standard
Plaintiffs' Title VII and Oregon state law claims under ORS Chapter 659 are premised upon a hostile work environment theory. A hostile environment exists under both Title VII and ORS Chapter 659 when an employee can show (1) that he or she was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 908 (9th Cir 1999), citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Mains v. II Morrow, Inc., 128 Or. App. 625, 635, 877 P.2d 88, 93 (1994). In addition, the plaintiff must show that the harassment was "because of sex." Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 872 (9th Cir 2001) (citations omitted). Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir 1989); Harris v. Pameco Corp., 170 Or. App. 164, 176, 12 P.3d 524, 532 (2000).
Whether a work environment is sufficiently hostile or abusive depends upon "`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.'" Nichols, 256 F.3d at 872, quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir 1994) (sexual or gender-based conduct violates Title VII if "such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.") and Fred Meyer, Inc. v. BOLI, 152 Or. App. 302, 309, 954 P.2d 804, 808 (1998) (applying objective "totality of the circumstances" standard to hostile work environment claims under ORS Chapter 659).
In determining whether the conduct was sufficiently severe or pervasive, each plaintiff must prove both that she subjectively felt the conduct was abusive and that a reasonable person would feel that the conduct was abusive. Harris, 510 U.S. at 21-22. Title VII "forbids only behavior so objectively offensive as to alter the `conditions' of the victim's employment." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The objectively reasonable person standard is measured by what a reasonable woman would have considered abusive. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir 1991). The required level of severity "varies inversely with the pervasiveness or frequency of the conduct." Id at 878. "`[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Nichols, 256 F.3d at 872, quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
B. Analysis
Gate Gourmet does not appear to dispute that plaintiffs were subjected to some unwelcome conduct of a sexual nature. Gate Gourmet also does not appear to dispute that management-level employees were aware of the incidents about which plaintiffs complain. However, Gate Gourmet argues that the conduct alleged by plaintiffs simply was not sufficiently severe or pervasive to support hostile work environement claims. While the incidents alleged by plaintiffs certainly deserve strong condemnation, a searching review of Ninth Circuit and Oregon law reveals that plaintiffs' allegations simply fall short of the type of allegations that will support a hostile work environment claim.
The record suggests that Harrison was plaintiffs' "Supervisor" and that Straight was the "Unit Manger," which is presumably one level of authority higher than that of "Supervisor." Ostin Depo, Exs 2-5.
Neither the Title VII nor the Oregon cases discussing a hostile work environment clearly draw a line between conduct which is actionable and conduct which is not actionable. Some conduct can "make the workplace hellish for women" and clearly falls within the purview of Title VII. Baskersville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir 1995). Such conduct includes "sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; and [unwelcome distribution or display of] pornographic pictures." Id (citations omitted); see also Mains, 128 Or App at 635, 877 P.2d at 93 (allegations that plaintiff's supervisor called her a "sex-atary, a "bitch," and a "wench," and told her she was "just another worthless woman," often said "lick my balls," and said that she must be catching AIDS from her boyfriend, coupled with allegations that he shoved the plaintiff, grabbed her ankles, and blocked her from leaving the parking lot, encouraging others to do the same were sufficient); Fred Meyer, 152 Or App at 304-05, 954 P.2d at 805-06 (numerous comments by a co-worker about the physical characteristics of the plaintiff and other women, daily sexual comments, comments about plaintiff's breasts, and frequent touching of the plaintiff was sufficient).
At the other end of the spectrum lies conduct which, although unwelcome and unpleasant, is not sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Such conduct, including the "occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers," will not support liability under Title VII. Baskersville, 50 F.3d at 430; see also Brooks v. City of San Mateo, 229 F.3d 917, 926-27 (9th Cir 2000) (citing cases where allegations were insufficient); Candelore v. Clark Co. Sanitation Dist., 975 F.2d 588, 590 (9th Cir 1992) (isolated incidents of "sexual horseplay" insufficient to support hostile work environment claim); Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir 1988), cert denied, 488 U.S. 1006 (1989) (abusive work environment not created where men and women told "off-color" jokes at work). "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . ., and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Oncale, 523 U.S. at 82.
The one allegation common to each claim is the ice incident of April 17, 1999. That incident involved Harrison and Gleich showing each plaintiff a penis-shaped block of ice and asking whether each plaintiff "liked" it. When Gate Gourment's storeroom supervisor, Ramsey, learned of the ice incident, she immediately called a meeting and told Harrison and Gleich their conduct was inappropriate. Gleich apologized, but Harrison would not.
Tumusok's additionally alleges that (1) Straight took and posted an unflattering photograph of her and Ostin along with a disparaging comment, and (2) Harrison sometimes touched her shoulder or arm for a few seconds and once massaged her back. Prasad also alleges that Harrison unsuccessfully tried to get her to quit by telling her she could no longer work in the pantry. These allegations simply are insufficient to state a claim for discrimination based on a hostile work environment theory. There is no evidence that these incidents were anything more than unrelated and isolated workplace events. Moreover, other than the fact that plaintiffs are women and Straight, Harrison, and Gleich are men, nothing supports the conclusion that the conduct about which plaintiffs complain was "because of" their gender.
Even the infamous ice incident, which appears to be the most serious allegation and certainly has sexual overtones, is lacking that element. Plaintiffs are all women, but also were the only other people who were working late the night of the ice incident. Ostin Depo, p. 88. After showing each of them the ice, Harrison and Gleich returned it to the freezer so that they could "show it to the morning people." Tumusok Depo, p. 21. Plaintiffs have not suggested that the only "morning people" to whom Harrison and Gliech intended to show the ice were also women and the fact that Harrison and Gleich showed the ice to everyone who was at work that night undercuts any suggestion that they were showing the ice to plaintiffs "because of" their gender.
With the possible exception of Ostin's allegation that Harrison called her "baby" and Tumusok's allegation that Harrison touched her shoulders or arm and once "massaged" her back, none of the conduct alleged by any of the defendants can even remotely be characterized as having any sexual content or having been directed at the plaintiffs "because of" their gender. Instead, plaintiffs allege several discreet events which they found offensive (the posting of the unflattering photo with the disparaging comment) or unfair (insisting that Ostin pay for the broken knife, suspending Ostin for the tussle with Lavin, questioning Ostin as to whether she was on a break when she went to pick up her check, and the attempt to move Prasad out of the pantry). These types of actions simply are insufficient to state a hostile work environment claim.
In sum, the undisputed facts reveal no discriminatory conduct that was sufficiently severe or pervasive to unreasonably interfere with an employee's work performance. Several incidents, many of which have no relationship to sex, over a period of three to four months provide no evidence upon which a rational trier of fact can reasonably find a hostile work environment under either Oregon law or Title VII.
ORDER
For the reasons stated above, Gate Gourmet's Motion for Summary Judgment (docket #14) is GRANTED.