Opinion
Civil No. 02-3088-CO.
August 24, 2004
FINDINGS AND RECOMMENDATION
Plaintiff brings this action against defendants Fred Meyer Jewelry, Inc. and Fred Meyer Stores, Inc. alleging claims for sexual harassment, gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000eet seq., gender discrimination in violation of ORS Chapter 659, and wrongful discharge under state common law. Plaintiff seeks economic and non-economic damages, costs, disbursements, and attorney's fees. Defendants move for summary judgment (#32).
I. FACTS
Defendant employed plaintiff Heidi Chestnut from November 29, 2000, until she resigned on July 17, 2001. (Chestnut Depo. at 48; Complaint ¶ 5). Defendant hired plaintiff for a sales position in the Southgate jewelry store. She interviewed for the position with the new store manager, Ricardo Salas, the regional manager, Bruce Reschke, and the human resources administrator, Louise Young. (Chestnut Depo. at 35, 44).
Plaintiff was hired as temporary part-time help for the 2001 holiday season. After Christmas, defendant retained plaintiff on a part-time basis. Plaintiff eventually asked Mr. Salas to promote her to a full-time position, and he approved that request. She was a full-time employee at the time of her resignation. Her compensation consisted of an hourly rate, plus a 2% commission on sales. (Chestnut Depo. at 34, 41, 66).
Ms. Young conducted plaintiff's orientation. She provided plaintiff with a copy of the employee handbook, which plaintiff read. Ms. Young provided training on the company's policy on attire, and she reviewed the sex harassment policy with plaintiff. Plaintiff knew that Ms. Young was the store's human resources administrator, and that she could bring any workplace complaints that she had to Ms. Young. (Chestnut Depo. at 36-37, 39, 44).
Plaintiff knew the company had a policy on employee attire, and that jewelry employees were expected to wear clothing that was more dressy than the attire expected of other employees. She agrees that the manager has responsibility for enforcing the attire policy, so long as the manager follows the stated guidelines. (Chestnut Depo. at 75-81; Chestnut Depo. Exhibit 5).
At the time she started, plaintiff's coworkers were Mr. Salas, the store manager, Kammy Atwood, the assistant manager, and sales associates Anthony Ameral, James Harbison and Jessica Barry. Ms. Barry was on maternity leave. Plaintiff found her coworkers to be very helpful, and willing to assist her with sales, especially Mr. Salas and Ms. Atwood. (Chestnut Depo. at 40-42).
During her initial sales training, other coworkers assisted her when she tried to make sales. She does not remember if she received credit for the sales on which other coworkers assisted. Mr. Salas may have given her credit for sales on which he assisted. (Chestnut Depo. at 40-42). After she complained about Mr. Salas's behavior, Mr. Salas refused to help her or even speak to her. (Chestnut Affidavit ¶ 3).
Plaintiff's shift schedule fluctuated; sometimes she opened and sometimes she closed. This was consistent with other employees' schedules. (Chestnut Depo. at 43).
Plaintiff had a sales goal for each month. Mr. Salas set that goal, and plaintiff believes he always set her goal in an appropriate manner. She understood that sales were her most important job duty, that Mr. Salas and others would work with her to help her improve and meet her goals, and that a consistent failure to meet goal could lead to termination. (Chestnut Depo. at 45-46, 67).
During her employment, plaintiff had mixed results, meeting her sales goal about half the time. Mr. Salas reviewed her sales fairly and always encouraged her with statements such as: "excellent start", "good effort", stay positive", "great job!", "stay up + positive" and "you're close". (Chestnut Depo. at 47-51; Chestnut Depo. Exhibit 3).
On January 20, 2001, plaintiff received a performance appraisal. At the time of her performance evaluation, she did not have any complaints that were based on either sexual discrimination or sexual harassment, but she had "an uneasy feeling about a comment that was made to . . . [her] . . .". (Chestnut Depo. at 56). She had a "feeling" about the store and/or the department. (Chestnut Depo. at 56). The fact Mr. Salas liked women and he would comment on their dress or their body or their attractiveness led to this "feeling". (Chestnut Depo. at 57).
As of January 20, 2001, she was becoming more aware of this, but it had not reached a level where she felt compelled to complain about it. (Chestnut Depo. at 57). As of January 20, 2001, she and Mr. Salas had not had specific conflicts over her wardrobe or attire. (Chestnut Depo. at 82).
In January 2001, plaintiff received a favorable review. She met with Mr. Salas in the Fred Meyer deli. He told her that she was doing a good job. In her self appraisal portion, plaintiff stated: "Both of my supervisors are extremely helpful. They always take time and show me how things work or whatever I need." (Chestnut Depo. at 53-56; Chestnut Depo. Exhibit 4).
Plaintiff testified that, during the performance review, Mr. Salas commented unfavorably on her attire by saying that "a certain type of man likes to purchase from a certain type of woman", and telling her to use all of her assets. Plaintiff interpreted this to mean that "he felt his idea of attractiveness would sell more." (Chestnut Depo. at 59).
Plaintiff wore tea length skirts and barely above the knee skirts. (Chestnut Depo. at 58). She told Mr. Salas she was following the dress code policy and she did not want to get in trouble for wearing skirts over her knee. (Chestnut Depo. at 58). He stated that he wasn't sure what it said in the dress code, but that she couldn't get "too short" for him. (Chestnut Depo. at 61). He told her that she should use her "assets", and plaintiff understood this to mean that she should use her looks or sex appeal to help her sales. (Chestnut Depo. at 59). Mr. Salas told her that by using all her "assets" and shortening her skirts, it would help her sales. (Chestnut Depo. at 60). At one point, Mr. Salas told her she had to shorten her skirts, but not during the above conversation. (Chestnut Depo. at 60).
Plaintiff alleges that the sexual harassment by Mr. Salas took place between January 2001 and May 2001. (Plaintiff's Exhibit 17). On a daily basis, Mr. Salas would talk about the "big hooters" of a woman who worked in the Fred Meyer deli. (Harbison Depo. at 79). "On a daily basis, if you were working with [Mr. Salas] there were comments. They were always about women; they were always about big breasts." (Harbison Depo. at 81). Mr. Harbison testified that: "After working with [Mr. Salas], it just became like, hello. How are you? Are you having a good day? Look at her big tits. I mean, that was just the general — this is the way he talked." (Harbison Depo. at 81).
Mr. Harbison found Mr. Salas's comments "offensive in general" and "sexually tainted." (Harbison Depo. at 84). Mr. Harbison testified that it was his "belief that you can have a conversation without mentioning penises, breasts, screwing . . . and things of that nature . . ." and "he didn't think "it was necessary in my place of employment and I said so and so [did plaintiff." (Harbison Depo. at 84).
In March 2001, Mr. Salas told plaintiff that he wanted to discuss her attire. Mr. Harbison interrupted and said that Mr. Salas and Mr. Reschke had been discussing her grandma wardrobe, and that they wanted her to shorten her skirts. Plaintiff was wearing a tea length skirt that day. Mr. Salas did not deny Mr. Harbison's statement, and repeated what he previously had told her about a certain type of man liking to purchase from a certain type of woman. (Chestnut Depo. at 82-86). She understood Mr. Salas to be saying that she dressed too conservatively, and that he would prefer non-tea length skirts. (Chestnut Depo. at 87-92).
Plaintiff testified that, either then or near that time, Mr. Salas told her that "Bruce [Reschke] and I agree that sex sells" and that she should "sex it up". She testified that Mr. Salas told her they were in the jewelry business and that their job is to sell themselves and jewelry. (Chestnut Depo. at 87-92).
When Mr. Salas told her to "sex it up" and made the statement that "sex sells", Mr. Reschke was present. Mr. Reschke nodded when the comment was made and stated: "It's the truth. Sex sells." (Chestnut Depo. at 58-60, 82-86, 91-92; Harbison Depo. at 61-62).
On May 18, 2001, plaintiff met with Ms. Young to complain about comments attributed to Mr. Salas. In addition to reporting what happened at her performance review and in March, plaintiff testified that Mr. Salas made the following comments during the preceding months: that he would like a female employee with a "cat-like body" "to sit on his face for about 30 minutes or so"; that in response to a question from Mr. Harbison as to why a female employee got a promotion at a different store, Mr. Salas said "she must give a good blow job"; that a friend with dentures "would pop out her teeth" and "it was amazing the things she could do with her mouth"; that he loves women; that he had to return pornographic movies to a rental location for his wife's ex-husband; that he told Ms. Atwood she looked "mighty fine" in a dress; that he stated that female groupies watched his band practice; and that while plaintiff was trying to talk to Mr. Salas, he turned to watch a woman who he had gone to watch strip and remarked "that he liked that particular performance". She testified that Mr. Salas flirted with a customer. (Chestnut Depo. at 92-98).
She testified that she only told Ms. Young about the comments regarding the "blow job" and regarding the "cat-like body", and that the comment about the stripper was inappropriate, because Mr. Salas was distracted when she was asking for help. (Chestnut Depo. at 98-101). Some of these comments do not appear in either Ms. Young's summary of the meeting or in plaintiff's May 20, 2001 email to Ms. Young. (Chestnut Depo. Exhibits 6 and 7; Chestnut Depo. at 104-107). Ms. Young prepared the report of the meeting. (Plaintiff's Exhibit 2).
The report failed to mention Mr. Salas's offensive behavior, including the following:
Mr. Salas kept inviting plaintiff to watch him play at a night club. (Chestnut Depo. at 132). Mr. Salas stated that: "The first night his wife was allowed to come watch him, but the second night it she had to stay home because it was the groupies turn, the ladies turn." When plaintiff grew tired of the invitations and reminded Mr. Salas that she was married, he stated "even married girls have to have fun".
Mr. Salas talked about how the women dressed, how they flirted and hung on him. He spoke of having "a certain way with women" and how "he just loves women". He spoke about autographing women's breasts. (Chestnut Depo. at 97-98, 132; Harbison Depo. at 47-48).
Mr. Salas would stand so close to the plaintiff she could "feel him breathing on me." "Mr. Salas himself is an intimidating man. His build is intimidating, and comments coming from your boss are intimidating, especially when they're of a sexual nature." (Chestnut Depo. at 102, 184).
Plaintiff was subjected to constant crude comments about coworkers and customers. In addition to the "sit on his face" comment, Mr. Salas said of the "woman with the cat-like body", that "he'd have to put a bag over her head". He made comments about women in tight pants and said "she has a nice ass." Mr. Salas said to plaintiff about a woman customer: "It's too bad this is cold water" "I've got a hard-on."
If Mr. Salas told a joke "it usually involved blondes with big breasts." Mr. Salas referred to his parties as "orgies" and wanted to talk about them. (Chestnut Depo. at 96-98, 132; Harbison Depo. at 47-48, 78-79, 81, 84). When plaintiff was asked how she would feel if Mr. Salas was just kidding when he made these comments, plaintiff stated that: "They would be disgusting and it would be intimidating to think that you worked in a place that tolerated that sort of behavior." (Chestnut Depo. at 185).
On May 22, 2001, Mr. Salas spoke to plaintiff. After that conversation, he did not make any comments about her clothing. (Chestnut Depo. at 119). He did make two inappropriate comments after that conversation. (Chestnut Depo. at 119). One comment was that a woman was pretty, but, as he made the comment, he was "grabbing himself" "like he was adjusting himself in his pants." (Chestnut Depo. at 120).
Plaintiff stated that the report prepared by Laurie McTavish contained some of the things that she complained about, but things that were left out included: "the blow job thing", "the discussion about Athena", "the sitting on the face comment", and "when he told Kammy that she looked mighty fine". (Chestnut Depo. at 115, 120). Plaintiff thought things were left out to minimize the problem. (Chestnut Depo. at 116).
On June 4, 2001, plaintiff made a report to Fred Meyer's 800telephone hotline. The memo of her report repeats some of the things in Ms. Young's May 18, 2001 memo, but does not contain any new allegations. (Chestnut Depo. at 189-190; Chestnut Depo. Exhibit 14).
On June 14, 2001, plaintiff met with Ms. Young and Laurie McTavish, an investigator, regarding her assertions. Plaintiff stated that there was nothing in Ms. McTavish's memo that was "dead wrong". It identifies several comments attributed to Mr. Salas: that a woman walking past the department had "good hooters"; that he was distracted watching the stripper; that a woman in high heels is "something"; that a woman was not voluptuous enough; and that a long skirt worn by plaintiff "cracks me up", while a shorter skirt than that "looks nice". (Chestnut Depo. at 113-116; Chestnut Depo. Exhibit 9). Plaintiff stated in her letter of resignation that: 1) the investigation was "a sham"; 2) the results were found inconclusive; 3) James Harbison was never questioned, even though she was told they had a statement from him; and 4) Mr. Salas and Mr. Reschke went unpunished, while she was given the option of moving to a lower paying position. (Chestnut Depo. Exhibit 10).
Mr. Harbison, one of plaintiff's co-workers, asked Mr. Salas how Ms. Athena Anderson, another co-worker, could have been promoted when she had no experience. Mr. Salas told him that Ms. Anderson had other assets, that Mr. Reschke liked her, and Mr. Reschke took care of those he liked. Mr. Salas said that Ms. Anderson had "special tools" she used, and that "she probably gave good blow jobs." (Harbison Affidavit ¶ 5). Plaintiff testified that it "was known" that a woman who was promoted was sleeping with Mr. Reschke. (Chestnut Depo. at 181).
Mr. Reschke and Mr. Salas never acknowledged that they gave preferential treatment to Ms. Anderson, Ms. Atwood, or anyone else in return for sexual favors. (Chestnut Depo. at 183-184). Plaintiff heard from Mr. Salas that Ms. Anderson was promoted because "she gave good blow jobs." (Chestnut Depo. at 183).
Mr. Reschke and Mr. Salas did not condition plaintiff's promotion, demotion, or performance evaluation upon the submission of sexual favors from plaintiff. (Chestnut Depo. at 204). Mr. Salas and Mr. Reschke never grabbed, fondled, or groped plaintiff. (Chestnut Depo. at 204). Mr. Reschke and Mr. Salas did not display sexually suggestive pictures or cartoons to her. (Chestnut Depo. at 205).
Mr. Salas would stand right behind plaintiff so she could feel him on her back side. Plaintiff testified that this was uninvited and it was invading her personal space. (Chestnut Depo. at 205). Mr. Salas would "grade" Ms. Atwood's outfit; he would tell her if he liked it or not. (Harbison Depo. at 67). Mr. Salas made frequent comments about the attire of female employees. (Harbison Depo. at 67-68, 74-75).
Compared to other women working with her, plaintiff thought she was a woman of conservative dress and manner. (Chestnut Depo. at 122). No one requested that she come to work without undergarments or "display ample cleavage." (Chestnut depo. at 124-125).
After the investigation was inconclusive, plaintiff "knew that it was a dead-end job . . . [she had] . . . lost all faith in the company and all faith in the management, and [she] knew that [Mr. Salas] would get rid of [her] as soon as possible. (Chestnut Depo. at 138).
After she filed her complaints with the corporation and BOLI, she felt she was retaliated against in the following ways:
Her shifts were manipulated so that she no longer worked with Mr. Harbison; Mr. Salas wrote her up whenever he could; He looked for mistakes; On one occasion he stood by the door, saying if she's one minute late I'm writing her up. (Harbison Depo. at 96); Mr. Salas was constantly reprimanding and criticizing her; He would follow her around the department and whatever she'd do, he would question her. (Harbison Depo. at 91); Plaintiff no longer got help and her sales suffered; When she had a question, Mr. Salas said, "I"m not allowed to talk to you."(Harbison Depo. at 94); Mr. Salas forced plaintiff to clean the metal gates that close the store in the mall. This was janitorial work. It had never before been done by a jewelry employee. They were filthy and he made her get up on a ladder to do it in her dress. He stood under the ladder looking up at her. He refused to allow anyone to assist. (Harbison Depo. at 92); Mr. Salas checked the vacuum bag to see if she cleaned, and made her take the trash out to the compactor in the back, which no one else did. (Harbison Depo. at 93); On one occasion when plaintiff had the day off, Mr. Salas changed the schedule after it was posted. When plaintiff could not come in because she already had plans, Mr. Salas told her it was a "terminable offense." He stated that his hands were tied "but he wishes they weren't." (Chestnut Depo. at 175; Chestnut Depo. Exhibit 16); After her complaints, nobody in the department would speak to her; Mr. Harbison was told by human resources not to associate with plaintiff, because "She's a sinking ship". (Harbison Affidavit ¶ 6); Plaintiff's co-worker Dan Vacher suggested that "maybe if [plaintiff] apologized to [Mr. Salas] that everything would go away and that [she] could keep working." (Chestnut Depo. at 144); Mr. Salas would block the register so plaintiff could not get by. (Chestnut Depo. at 147); If plaintiff had customers and said, "excuse me", Mr. Salas still would not move. (Chestnut Depo. at 147); Mr. Salas would get angry, turn red in the face, and lash out verbally. On one occasion, Mr. Salas thought plaintiff made a mistake, "he yanked it out of her hand And she looked like she thought he was going to hit her. And he said, just get out of the way." When he realized there was no mistake, he "slams it down" and says "I'm leaving." (Harbison Depo. at 95); Mr. Salas brought food for employees when they were opening. "When he found out it was [plaintiff], he would dump it in the trash." Mr. Salas brought in snacks and offered them to ever one but plaintiff. (Chestnut Depo. at 148); and when plaintiff remarked, "You never take us to lunch." Mr. Salas replied "I wouldn't take you to lunch if you were the last woman on earth." (Harbison Depo. at 96).
Plaintiff does not know whether anyone else in that store had their days off split-up. (Chestnut Depo. at 139). She does not know for sure if Mr. Salas was keeping track of other employees the way he was keeping track of her. (Chestnut Depo. at 141).
On July 17, 2001, plaintiff resigned from employment. Her resignation letter repeats some of her prior assertions. She admits that no one told her to dress trashy. She was told to "sex it up". (Chestnut Depo. at 128; Chestnut Depo. Exhibit 10).
Plaintiff filed her first BOLI complaint on August 2, 2001. BOLI found Substantial Evidence of Discrimination and issued a Right to Sue Letter on the first complaint on August 2, 2002. Plaintiff filed a second complaint on June 27, 2002. BOLI issued a Right to Sue Letter on the second complaint on September 11, 2002. The EEOC issued a right to sue letter on September 20, 2002. Plaintiff filed her lawsuit on December 3, 2002. (Plaintiff's Exhibits 17, 18, 101-104).
II. LEGAL STANDARDS
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56©); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.The moving party bears the initial burden of proof. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted); See City of Mt. Pleasant, Iowa v. Associated Electric Co-op, Inc., 838 F.2d 268, 273-274 (8th Cir. 1988) (it is sufficient for the movant to argue that the record does not contain an issue of fact and to identify that part of the record that supports that assertion).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
III. DISCUSSION
Defendants move for summary judgment arguing that:1) the actions plaintiff complains about are insufficient to state a claim, because they are based on conjecture or are business actions unrelated to sex;
2) assuming plaintiff's allegations are true, her allegations are insufficient to satisfy the severe and pervasive element of her prima facie case;
3) plaintiff failed to file her Second Claim, hostile work environment in violation of ORS 659.020, in a timely manner;
4) there is no evidence that defendant took any adverse action against plaintiff because she filed a complaint;
5) plaintiff cannot pursue a common law wrongful discharge claim because she has adequate statutory remedies under Oregon law and Title VII; and
6) there is no causal connection between her protected activity and any action taken against plaintiff.
In response, plaintiff argues that:
1) plaintiff's evidence establishes a pattern of harassing behavior that permeated the workplace and directly interfered with plaintiff's ability to function in the workplace satisfying the severe and pervasive requirement;
2) defendant is not entitled to the protections of an affirmative defense under Faragher;
3) plaintiff's Second Claim is timely;
4) plaintiff's evidence establishes the adverse employment action element and the causal connection requirement — immediately after she complained, she was treated abusively by her supervisor, who also interfered with her ability to do her job, her co-workers were warned not to associate with her, she was threatened with discharge, her work was unreasonably criticized, she lost sales, she was forced to do jobs that no other employee had to do, her work hours were changed, and her work place became so unbearable she was forced to resign; and
5) under Federal and Oregon law, the remedies available under ORS Chapter 659 and Title VII do not abrogate her common law wrongful discharge claim.
In reply, defendant argues that:
1) plaintiff's Second Claim is not timely — plaintiff filed this suit more than 90 days after BOLI issued a Notice of Right to File a Civil Suit on plaintiff's first complaint;
2) plaintiff does not offer any admissible evidence to prove severe or pervasive conduct;
3) plaintiff's admissible evidence is insufficient to establish an adverse employment action or a causal connection with respect to her retaliation claim; and
4) plaintiff's common law wrongful discharge claim is barred because there are adequate statutory remedies and there is no causal connection between the protected activity and the complained of action. Plaintiff's Second Claim — Violation of ORS 659.020 — Sex
Since ORS Chapter 659A is patterned after Title VII, federal cases are instructive in interpreting its provisions. See A.L.P. Inc. v. Bureau of Labor and Industries, 161 Or.App. 417, 422 (1999) (ORS 659.030 is patterned after Title VII and therefore federal cases are instructive) (citing Mains v. II Morrow, Inc., 128 Or.App. 625, 634 (1994). ORS 659A.820(1) provides in part that a person "claiming to be aggrieved by an alleged unlawful practice may file with the Commissioner of the Bureau of Labor and Industries [BOLI] a verified written complaint . . . no later than one year after the alleged unlawful practice." ORS 659A.820. ORS 659A.875 provides that:
(1) Except as provided in subsection (2) of this section, a civil action under ORS 659A.885 alleging an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under ORS 659A.820.
(2) A person who has filed a complaint under ORS 659A.820 must commence a civil action under ORS 659A.885 within 90 days after a 90-day notice is mailed to the complainant under ORS 659A.880.
Plaintiff filed her first complaint with BOLI on August 2, 2001. In this complaint plaintiff alleged that:
from January 2001 through May 2001 my employer discriminated against me in the terms and conditions of my employment because of my sex, and retaliated against me because I opposed sexual discrimination.
(Plaintiff's Exhibit 17). On August 2, 2002, BOLI mailed plaintiff a Notice of Right to File a Civil Suit regarding her August 2001 complaint. (Plaintiff's Exhibit 18). The letter stated that, pursuant to ORS 659.095, plaintiff must file a civil suit in state circuit court within 90 days from the mailing date or lose her right to file a suit. (Id.). Plaintiff filed this suit on December 3, 2002.
On June 27, 2002, plaintiff filed a second complaint with BOLI. This complaint alleged that:
my employer discriminated against me in that I was retaliated against because I opposed unlawful discrimination, and that conditions were so intolerable that I had no reasonable alternative but to resign and did so on August 6, 2001.
(Plaintiff's Exhibit 102). Plaintiff's allegations stated that from January 2001 through May 2001 she was sexually harassed by her manager and that the harassment was the subject of a complaint she filed on August 2, 2001. (Id.). On September 11, 2002, BOLI issued a Notice of Right to File a Civil Suit on plaintiff's June 27, 2002 complaint. (Plaintiff's Exhibit 103). This notice provided that, pursuant to ORS 659A.880, a civil suit must be commenced in state circuit court within 90 days from the mailing date or she would lose her right to file a suit. (Id.).
Plaintiff argues that her state claim was timely filed, because her sexual harassment complaints made in her first BOLI complaint of August 2, 2001 were reiterated in her second BOLI complaint of June 27, 2002. ORS 659A.820 provides that a person "claiming to be aggrieved by an alleged unlawful practice may file with the Commissioner of the Bureau of Labor and Industries [BOLI] a verified written complaint . . . no later than one year after the alleged unlawful practice." ORS 659A.820. The court finds that, under ORS 659A.820, her allegations of sexual harassment, which occurred between January 2001 and May 2001 according to plaintiff's BOLI complaints, could not have been included in the second complaint of June 27, 2002, because they occurred more than one year before the second complaint was filed.
Plaintiff did not file this suit until December 3, 2002, more than 90 days after the mailing of her BOLI Notice of Right to File a Civil Suit on her first complaint. Plaintiff could not have included her claims of sexual harassment in her second complaint, because they occurred more than a year before her second complaint. In addition, it appears from the allegations in plaintiff's second BOLI complaint are limited to a retaliation claim based on the filing of her earlier sexual harassment complaint. See Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222-223 (8th Cir. 1994). The court finds that plaintiff's second claim for sex discrimination in violation of ORS Chapter 659A is barred by ORS 659A.875, and defendants are entitled to summary judgment on this claim.
Title VII Sex Discrimination Claim
Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment. 42 U.S.C. §§ 2000e(a)(1), 2000e-2(a), 2000e-5. A plaintiff may show a violation of Title VII by proving disparate treatment or disparate impact, or by proving the existence of a hostile work environment. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). Plaintiff alleges a claim for hostile work environment.
A hostile work environment exists when the work place is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the condition of the victim's employment and create an abusive working environment. Faragher v. Boca Raton, 524 U.S. 775, 786 (1998); Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-67 (1986). The conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment; an environment a reasonable person in the plaintiff's position would find hostile or abusive considering all the circumstances.Faragher, 524 U.S. at 787; Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993); Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); Steiner v. Showboat Operating Company, 25 F.3d 1459, 1462, cert. denied, 513 U.S. 1082 (1995). The assessment of whether an environment is objectively hostile "requires careful consideration of the social context in which the particular behavior occurs and is experienced by its target." Oncale, 523 U.S. at 81.
In addition, the victim must perceive the environment as hostile; the conduct must actually alter the conditions of the victim's employment. Harris, 510 U.S. at 21-22. The conduct does not have to seriously effect the victim's psychological well being. Id. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for psychological injury. Id.; Fuller v. City of Oakland, California, 47 F.3d 1522, 1526 (9th Cir. 1995) (citation omitted). It is enough that the hostile conduct pollutes the workplace, making it more difficult for the victim to do her job, take pride in her work, and to desire to stay in her position.Steiner, 25 F.3d at 1462.
Whether an environment is hostile or abusive depends on all the circumstances including; the frequency of the discriminatory conduct; it's severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001);Harris, 510 U.S. at 23. The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness of frequency of the conduct. Ellison, 942 F.2d at 878. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not qualify as changes in the terms and conditions of employment. Breeden, 532 U.S. at 271; Faragher, 524 U.S. at 788.
Defendants argue that plaintiff's complaint allegations regarding the giving of preferential treatment in anticipation of sexual favors is based on conjecture. Plaintiff has presented evidence that Mr. Salas told Mr. Harbison that Ms. Anderson received a promotion because she had other "assets", Mr. Reschke liked her, Mr. Reschke took care of people he liked, Ms. Anderson had "special tools" she used and that "she probably gave good blow jobs." This is not evidence based on conjecture.
Defendants argue that plaintiff's allegations regarding attire are not related to sex. Plaintiff has presented evidence that Mr. Salas told her, with regard to her attire and the attire of other employees and customers, that: "A certain type of man likes to buy from a certain type of woman"; plaintiff should use all her "assets"; plaintiff should wear shorter skirts; s skirt couldn't be "too short" for him; by using all her "assets" and shortening her skirt she would increase her sales; plaintiff should wear shorter skirts; "sex sells" and plaintiff should "sex it up"; a long skirt "cracks me up" while a shorter skirt "looks nice"; plaintiff's coworker looked "mighty fine" in a dress; and when women in tight pants were present that "she has a nice ass". Plaintiff presented evidence that both Mr. Salas and Mr. Reschke (the regional manager) wanted plaintiff to wear shorter skirts, and Mr. Reschke agreed and stated that "It's the truth. Sex sells." There is evidence that Mr. Salas would grade Ms. Atwood's outfits on a regular basis and that he would make comments about how women dressed on a regular basis. Plaintiff presented evidence that there was no question that she dressed professionally. These comments regarding plaintiff's attire and the attire of other women are related to sex. These are not comments or disagreements about plaintiff not following the dress code.
Defendants argue that the other comments plaintiff complains about were sporadic comments that were not severe or pervasive, and that plaintiff's allegations fall short of the allegations rejected in Shepherd v. City of Salem, 320 F. Supp.2d 1049 (D.Or. 2004). Plaintiff's evidence shows that over a four month period, Mr. Salas made comments about women's breasts on a daily basis. That he used offensive language and talked about inappropriate things on a regular basis as if it were casual conversation. Mr. Salas's comments were offensive and sexually tainted. Mr. Salas would talk about "penises, breasts, screwing, . . . and things of that nature" at work. Mr. Salas made sexually explicit comments of a vulgar nature such as wanting a woman with a "cat-like body" "to sit on his face for about 30 minutes or so", that a woman employee was promoted because "she must give good blow jobs", that a friend with dentures could do "amazing things . . . with her mouth", he spoke about autographing women's breasts, that he had a "hard-on", that he had "orgies" with his women fans; and when he commented that a woman was pretty he was "grabbing himself".
Plaintiff has presented evidence that Mr. Salas stated that he loves women. He stated that he had to return pornographic movies to a rental location for his wife's ex-husband Mr. Salas stated that female groupies watched his band practice. While plaintiff was trying to talk to Mr. Salas, he turned to watch a woman who he had gone to watch strip and remarked "that he liked that particular performance". Mr. Salas flirted with a customer.
Mr. Salas kept inviting plaintiff to watch him play at a night club. (Chestnut Depo. at 132). Mr. Salas stated that: "The first night his wife was allowed to come watch him, but the second night it — she had to stay home because it was the groupies turn, the ladies turn." When plaintiff grew tired of the invitations and reminded Mr. Salas that she was married, he stated "even married girls have to have fun".
Mr. Salas talked about how the women [groupies] dressed, how they flirted and hung on him. He spoke of having "a certain way with women" and how "he just loves women".
Mr. Salas would stand so close to the plaintiff she could "feel him breathing on me." "Mr. Salas himself is an intimidating man. His build is intimidating, and comments coming from your boss are intimidating, especially when they're of a sexual nature."
Mr. Salas said of the "woman with the cat-like body", that "he'd have to put a bag over her head". If Mr. Salas told a joke "it usually involved blondes with big breasts." Plaintiff found Mr. Salas's comments to be "disgusting and it would be intimidating to think that you worked in a place that tolerated that sort of behavior."
Mr. Salas stated that a woman in high heels is "something". He stated that another woman wasn't voluptuous enough. Mr. Salas would stand right behind plaintiff so she could feel him breathing on her neck. Plaintiff testified that this was uninvited and an invasion of her personal space.
While plaintiff's allegations may not be as severe or pervasive as the allegations in E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989), Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999), Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998), or Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999), the court finds that the allegations are more severe and pervasive than those set forth in Shepherd, Bahri v. Home Depot USA, Inc., 242 F. Supp.2d 922 (D.Or. 2002), or Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000). InShepherd, the court found that the evidence was insufficient for a rational trier of fact to conclude that a hostile work environment existed, while in this case there is sufficient evidence. In Shepherd, the court found that the comments were not as vulgar as in other cases where there was actionable sexual harassment, but in this case there is evidence of vulgar comments. In Shepherd, the court found that the conduct to be offensive, but not intimidating. In this case, plaintiff testified that she was intimidated by her supervisor making these comments and that her supervisor was also physically intimidating. In Shepherd, the person making the comments and engaging in the behavior was not the plaintiff's supervisor, while in this case Mr. Salas was plaintiff's supervisor. In addition, at least some of Mr. Salas's comments were directed at the plaintiff. There is evidence that Mr. Salas commented on women's breasts on a daily basis, Mr. Salas repeatedly asked plaintiff to come and watch him play at a night club, Mr. Salas made sex-related comments about plaintiff's attire as well as the attire of other women, and that Mr. Salas used sexually explicit language in casual conversation, unlike the circumstances in Bahri and Kortan.
The court cannot say as a matter of law that plaintiff's evidence is insufficient to establish the severe and pervasive requirement. Plaintiff has presented sufficient evidence to raise an issue of fact as to whether she was subjected to a hostile work environment. Therefore, defendants' motion for summary judgment on this ground should be denied.
Title VII Retaliation Claim
To make out a prima facie case of retaliation, plaintiff must show: 1) she was engaged in a protected activity; 2) there was an adverse employment decision; and 3) a causal link between the protected activity and the adverse employment decision. Wallis v. J.R. Simplot, 26 F.3d 885, 891 (9th Cir. 1994). The Ninth Circuit has adopted the standard from the EEOC compliance manual in defining an adverse employment action. Vasquez v. County of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2004). "[A]n action is cognizable as an adverse employment action if it reasonably likely to deter employees from engaging in protected activity."Id. This standard is both subjective in that it
speaks of any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Including behavior of the charging party in the standard removes it from the hypothetical `reasonable employee' approach and makes it more subjective. Of course, it is not entirely subjective as the conduct must be `reasonably likely' to deter the protected activity, even by the charging party.Id.
Causation, sufficient to establish a prima facie case of unlawful retaliation, may be inferred from the proximity in time between the protected action and the alleged retaliation. Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731 (9th Cir. 1986) (citations omitted). A plaintiff may prove causation by presenting direct evidence of a retaliatory motive. Id.
A hostile work environment claim may also be the basis for a retaliation claim under Title VII. Ray v. Henderson, 217 F.3d 1234, 1244-1245 (9th Cir. 2000). Harassment in retaliation for engaging in a protected activity can satisfy the adverse employment action prong when the harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Id. at 1245 (citation omitted).
The harassment must be both objectively and subjectively offensive. Id. Whether an environment is hostile or abusive depends on all the circumstances including; the frequency of the discriminatory conduct; it's severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id.
Defendants argue that plaintiff's allegations in support of her retaliation claim are based on speculation or do not identify any adverse employment action, and that there is no causal connection between the protected activity and any adverse employment action. Plaintiff has presented the following evidence in support of her claim:
After she filed her complaints with the corporation and BOLI, she was retaliated against in the following ways:
Her shifts were manipulated so that she no longer worked with Mr. Harbison; Mr. Salas wrote her up whenever he could; He looked for mistakes; On one occasion he stood by the door, saying if she's one minute late I'm writing her up. (Harbison Depo. at 96); Mr. Salas was constantly reprimanding and criticizing her; He would follow her around the department and whatever she'd do, he would question her. (Harbison Depo. at 91); Plaintiff no longer got help and her sales suffered; When she had a question, Mr. Salas said, "I"m not allowed to talk to you."(Harbison Depo. at 94); Mr. Salas forced plaintiff to clean the metal gates that close the store in the mall. This was janitorial work. It had never before been done by a jewelry employee. They were filthy and he made her get up on a ladder to do it in her dress. He stood under the ladder looking up at her. He refused to allow anyone to assist. (Harbison Depo. at 92); Mr. Salas checked the vacuum bag to see if she cleaned, and made her take the trash out to the compactor in the back, which no one else did. (Harbison Depo. at 93); On one occasion when plaintiff had the day off, Mr. Salas changed the schedule after it was posted. When plaintiff could not come in because she already had plans, Mr. Salas told her it was a "terminable offense." He stated that his hands were tied "but he wishes they weren't." (Chestnut Depo. at 175; Chestnut Depo. Exhibit 16); After her complaints, nobody in the department would speak to her; Mr. Harbison was told by human resources not to associate with plaintiff, because "She's a sinking ship". (Harbison Affidavit ¶ 6); Plaintiff's co-worker Dan Vacher suggested that "maybe if [plaintiff] apologized to [Mr. Salas] that everything would go away and that [she] could keep working." (Chestnut Depo. at 144); Mr. Salas would block the register so plaintiff could not get by. (Chestnut Depo. at 147); If plaintiff had customers and said, "excuse me", Mr. Salas still would not move. (Chestnut Depo. at 147); Mr. Salas would get angry, turn red in the face, and lash out verbally. On one occasion, Mr. Salas thought plaintiff made a mistake, "he yanked it out of her hand And she looked like she thought he was going to hit her. And he said, just get out of the way." When he realized there was no mistake, he "slams it down" and says "I'm leaving." (Harbison Depo. at 95); Mr. Salas brought food for employees when they were opening. "When he found out it was [plaintiff], he would dump it in the trash." Mr. Salas brought in snacks and offered them to ever one but plaintiff. (Chestnut Depo. at 148); and when plaintiff remarked, "You never take us to lunch." Mr. Salas replied "I wouldn't take you to lunch if you were the last woman on earth." (Harbison Depo. at 96).
The court finds that plaintiff's evidence is sufficient to create an issue of fact regarding whether any adverse employment actions were taken against her. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); See also Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996). There is sufficient evidence from which a jury could find that the actions taken against plaintiff were reasonably likely to deter employees from engaging in protected activity. The court finds that a jury could infer the required causal connection from the facts that Mr. Salas knew about plaintiff's complaints and the proximity in time between plaintiff's complaints and Mr. Salas's actions against plaintiff. Plaintiff's evidence is sufficient to raise an issue of fact as to whether she was subjected to a hostile environment in retaliation for her complaints.
Oregon Wrongful Discharge Claim
Defendants argue that, because plaintiff has adequate remedies under state and federal statutory law, her common law wrongful discharge claim is barred. This court, following Judge Stewart's opinions in Hand v. Fred Meyer, Inc. 96-92-ST ((April 8, 1996) and Coleman v. Pig N Pancake, Inc., 94-405-ST (January 22, 1996) and Judge Jeldreks's opinion in Chandos v. Palmer, Groth Pietka, Inc., 95-1473-JE (December 14, 1995), finds that plaintiff's common law wrongful discharge claim based on her resistance to unlawful sex-based discrimination is not barred.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that defendants' motion for summary judgment (#32) be granted in part and denied in part. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.