Opinion
Civil No. CV 00-0615-HA.
July 1, 2001.
Mark G. Passannante, Johnson, Broer Passannante, P.S., Portland, Oregon Attorney for Plaintiff.
John V. Acosta, Courtney W. Wiswall, Stoel Rives, LLP, Portland, Oregon Attorneys for Defendant.
OPINION AND O R D E R
PROCEDURAL BACKGROUND
This case was removed from Multnomah County by defendant on May 4, 2000. Plaintiff asserts unlawful sex discrimination under Title VII, and a claim for constructive discharge. Defendant moved for summary judgment on January 26, 2001 and plaintiff responded on February 21, 2001. Defendant filed a reply on March 16, 2001, and oral argument on the motion was heard on May 24, 2001.
FACTUAL BACKGROUND
Plaintiff alleges she was sexually harassed by a supervisor during employment at Oregon Steel Mills, Inc. ("OSM"). Beginning in 1995, plaintiff claims she was subjected to unwanted sexual advances by defendant Jim Staehely until she could no longer tolerate the situation and resigned from her employment on August 25, 1998. Plaintiff alleges she brought her concerns and complaints to her supervisor, Todd Raddle, on several occasions, but the situation did not improve.
Foreman Raddle worked the same schedule as plaintiff and was assigned to oversee plaintiff's crew. However, Raddle did not direct plaintiff in performing her work, and plaintiff would sometimes work shifts without interacting with Raddle. Plaintiff regularly worked overtime, and when she did, Staehely would sometimes serve as her foreman.
Plaintiff alleges that during the period from August 1995 until August 1998, she experienced the following conduct by Staehely:
1. On August 20, 1995, plaintiff was making coffee when Staehely approached her from behind and began rubbing her shoulders. Plaintiff initially commented, "What a nice guy." Staehely then leaned against plaintiff, so that she felt his "hard-on" and said, "I could be nicer." Although plaintiff states that the incident did not impede her ability to do her job, she considered these actions by Staehely to be unwanted sexual advances and was scared. She then initiated a closed-door discussion with Raddle, and told him of the incident and that it had upset her.
2. On November 8, 1996, while plaintiff was pushing machines, Staehely approached her from behind and commented, "When I see you working like that, I think of that song, `Hey, Hey Good Looking.'" Plaintiff did not respond to the comment and walked away from Staehely. Plaintiff states that while this comment did not interfere with her ability to do her job, she considered it insulting and was upset by it.
3. On June 28, 1998, plaintiff was making coffee when approached by Staehely, who smelled her neck and commented that she smelled good. The comment did not impede plaintiff's ability to do her job, but she felt uncomfortable, immediately left the room, and reported the incident to Raddle on July 7, 1998. For reasons unclear from the record, Staehely was demoted on July 16, 1998.
4. On August 10, 1998, Staehely approached plaintiff and began massaging her shoulders. Plaintiff felt uncomfortable and stepped away, asking him to stop. Staehely apologized. Again, although the comment did not impede plaintiff's ability to do her job, she complained to Raddle, who said that he had already talked to him three times, but that he would do it again.
On August 24, 1998, Raddle told plaintiff he had again spoken with Staehely about her concerns and he anticipated she would have no further difficulties with him. The following day, plaintiff was welding at her work station when she saw Staehely staring at her from approximately 120 feet away with his arms crossed. Plaintiff began shaking and stopped working. She called Raddle to complain and was crying. Raddle told her to calm down and that he would talk to him again. Plaintiff responded that the talking had done no good, gathered her belongings, left work and resigned.
PENDING MOTION
Defendant seeks summary judgment on both plaintiff's sexual harassment and constructive discharge claims. Defendant argues that summary judgment is appropriate for plaintiff's sexual harassment claim because plaintiff's allegations do not rise to the requisite severity and pervasiveness needed to state a Title VII claim. As for plaintiff's constructive discharge claim, defendant argues that no reasonable person in plaintiff's position would feel compelled to resign because the alleged conduct does not establish a hostile work environment. For the following reasons, the motion is denied.
STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if a reasonable fact finder could find for the nonmoving party, and a fact is "material" if it may affect the conclusion of the case. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Special rules of construction apply to evaluating summary judgment motions 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. See T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When there is a dispute over what transpired, and reasonable minds could differ as to the outcome, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The court's role in a motion for summary judgment is to review all evidence most favorable to the nonmoving party. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir. 1997) (quoting United States v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994). It is not the court's role to determine the validity of the evidence or conclude the truth of the matter, but only decide "whether there is a genuine issue for trial." Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (quoting Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). When deciding the presence of a "genuine issue of material fact," all that is required is sufficient evidence supporting the claimed factual dispute to permit a jury to resolve the parties' differing versions of the truth at trial. See Sankovich, 638 F.2d at 140.
STANDARDS FOR UNLAWFUL SEXUAL DISCRIMINATION
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1) (West 2000). Sexual harassment constitutes discrimination and includes any "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 C.F.R. § 1604.11(a) (1985). Sexual misconduct falls under the protection of Title VII if it has the effect of "creating an intimidating, hostile, or offensive working environment," 29 C.F.R. § 1604.11(a)(3), and repeated incidents invariably create a more hostile working environment. Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (citations omitted). While the analysis is from the viewpoints of both a reasonable person and the employee, there should be an emphasis on the perspective of the victim. Id. (quoting King v. Bd. of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990).
To be actionable, the plaintiff must demonstrate that "1) she was subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) the conduct was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (citations omitted). To achieve the requisite severity or pervasiveness, it is not necessary that the employee endure sexual harassment to the point of anxiety and debilitation. Ellison, 924 F.2d at 878. Furthermore, the validity of any sexual discrimination claim turns on whether the alleged sexual advances are "unwelcome," 29 C.F.R. § 1604.11(a), and is properly reserved for the trier of fact. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).
"The requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citations omitted). "The plaintiff need only offer evidence which `gives rise to an inference of unlawful discrimination.'" Id. (citations omitted). In determining whether a work environment is hostile or offensive, the court must take into account all of the circumstances, such as whether the conduct was "intimidating or hostile or offensive." See Fred Meyer, Inc. v. BOLI, 152 Or. App. 302, 307 (1998) (emphasis in original). As long as plaintiff offers evidence that the environment could "reasonably be perceived, and is perceived, as hostile or abusive," the plaintiff has met the burden of proof for a Title VII claim. See Harris v. Forklift Systems, Inc. 510 U.S. 17, 22 (1993) (quoting Meritor, 477 U.S. at 67).
Due to the intrinsically factual nature of an employment discrimination case, the nonmoving party need not provide much evidence of a discriminatory motive in order to raise a genuine issue of fact sufficient to survive a motion for summary judgment. Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). The Ninth Circuit has reiterated that a high standard exists for the granting of summary judgment in Title VII cases. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (courts should require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record (citations omitted)); see also Lam v. U. of Haw., 40 F.3d 1551, 1563 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991).
STANDARDS FOR CONSTRUCTIVE DISCHARGE
To succeed on a claim of constructive discharge under Title VII, the plaintiff must show that "`a reasonable person in [her] position would have felt that [she] was forced to quit because of intolerable and discriminatory working conditions,'" and that those conditions were present at the time of resignation. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994) (brackets in original; citation omitted); Id. (quoting Brady v. Elixir Indus., 196 Cal.App.3d 1299, 1306 (1987)). It is traditionally the province of the jury to determine whether or not working conditions were intolerable or discriminatory enough that a reasonable person in plaintiff's position would resign. Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990) (citations omitted).
As applied to Title VII employment discrimination cases, constructive discharge operates when an employee is discouraged from remaining on the job, regardless of whether it seriously affects her psychological well-being or not. See Harris, 510 U.S. at 22. "It is enough . . . 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." Steiner, 25 F.3d at 1463. In order to survive a motion for summary judgment, the nonmoving party must demonstrate that a reasonable woman in her position would have felt compelled to quit because of the discriminatory working conditions. See Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989). Whether or not a plaintiff was constructively discharged due to intolerable working conditions naturally turns on the facts of each case. Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir. 1984); Nolan v. Cleland, 686 F.2d 806, 814 n. 17 (9th Cir. 1982).
ANALYSIS OF DISCRIMINATION CLAIM
The Ninth Circuit has placed a high standard for granting motions for summary judgment in employment discrimination cases. See Schindrig, 80 F.3d at 1410. The nonmoving party need produce very little evidence to survive summary judgment in a Title VII case, because the ultimate question is one that is most appropriately left to the jury upon a full record. Id. Defendant asserts that plaintiff's sexual harassment claim should fail as a matter of law because the conduct she alleges is not sufficiently severe or pervasive enough to create an actionable hostile work environment. Although the court is allowed to consider the perspective of a reasonable person in plaintiff's position, the court should focus its attention on the perspective of the plaintiff herself. King, 898 F.2d at 537. Plaintiff was fearful and uncomfortable with the working environment at OSM due to the repeated unwanted sexual advances and harassment by Staehely, and perceived the atmosphere as hostile and offensive. She made her concerns known to Staehely by turning and walking away during each encounter, as well as voicing her complaints to Raddle.
Defendant argues that the conduct was too intermittent and trivial to be properly considered severe or pervasive. Defendant relies on a recent Ninth Circuit case in which the court affirmed summary judgment for the defendant in a Title VII sexual harassment claim. See generally Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). In Brooks, a co-worker boxed plaintiff against a console, forced his hand under her sweater and bra and fondled her bare breast with his hand. Id. at 921. However, the facts in Brooks are distinguishable from this case in that Staehely was not plaintiff's co-worker for the majority of her employment, but a supervisor, and the conduct alleged here occurred on more than one occasion. The court in Brooks also notes that summary judgment may be appropriate when the defendant is a supervisor rather than a co-worker, and even a single incident by a supervisor can be sufficient to alter the conditions of employment and create a hostile work environment. See id. at 927 n. 9.
While there is no brightline rule in determining whether certain conduct rises to the level of a hostile work environment, the courts reiterate that it must be evaluated in light of the totality of the circumstances, with a focus on the victim's perspective. See Fuller, 47 F.3d at 1527; Ellison, 924 F.2d at 878. In Ellison, the court found that the defendant's conduct did rise to the requisite level of severity and pervasiveness to constitute a hostile work environment, yet the conduct alleged in that case could reasonably be viewed as less egregious than that alleged here. In that case, the defendant was a co-worker of the plaintiff who asked her out to lunch twice, one of which she accepted, and then gave her two love letters. While the conduct alleged in Ellison occurred over a few months as opposed to a few years, there was never any physical contact between the co-worker and the plaintiff, in contrast to the two alleged physical contacts here.
Plaintiff has alleged sufficient facts to satisfy a subjective analysis as to the presence of a hostile work environment, and presented enough evidence to support a claim that a reasonable woman would also find the same. The conduct alleged here was not a series of discrete, unrelated discriminatory actions, but rather a pattern of closely related occurrences that arose within a general time period, stemming from the same source. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). In Draper, the alleged sexual harassment continued for a period of two years and consisted of approximately six incidents. See id. at 1106. As in this case, the defendant in Draper was plaintiff's supervisor. See id. at 1105. However, unlike Draper, defendant Staehely not only harassed plaintiff verbally, but physically as well. While the conduct taken individually may not satisfy the requirement of pervasive harassing conduct, the cumulative effect of the general atmosphere should be left to a jury to decide whether a reasonable woman would consider such work environment hostile. A reasonable woman could fear that this pattern would continue for as long as plaintiff and Staehely worked for the same company, and that tolerating the harassing behavior had become a condition of plaintiff's employment. Therefore, since reasonable minds could differ as to whether or not Staehely's alleged conduct created a hostile working environment, there is a "genuine issue of material fact" that should be resolved by the fact-finder, and not by the court.
ANALYSIS OF CONSTRUCTIVE DISCHARGE CLAIM
Defendant's motion for summary judgment on plaintiff's constructive discharge claim fails because there is a "genuine issue of material fact" as to whether plaintiff was reasonable in resigning due to a hostile work environment. Defendant argues that plaintiff's constructive discharge claim lacks sufficient evidence to survive summary judgment. Essentially, defendant claims that no reasonable woman in plaintiff's position would have felt forced to quit because of intolerable and discriminatory working conditions. Defendant asserts that Staehely's alleged staring at plaintiff is insufficient to create a dispute of material fact on the question of whether plaintiff was constructively discharged. While this action alone may not be adequate to survive summary judgment, coupled with the various other allegations, there is a dispute as to whether the cumulative effect created an intolerable working environment that justified plaintiff's resignation.
Defendant relies on a Ninth Circuit case in which the plaintiff alleged she was constructively discharged as a result of her employer's retaliation for her sexual harassment complaints. See Steiner, 25 F.3d at 1465. The court in Steiner stated that "in order to constitute constructive discharge, harassment must be intolerable `at the time of the employee's resignation.'" Id. (citation omitted). However, defendant's reliance is misplaced. In Steiner, the plaintiff failed in her constructive discharge claim because the co-worker who had allegedly harassed her had been terminated 2 months prior to plaintiff's resignation, and the plaintiff had been restored to her favorable position. Id. at 1465-66. In this case, although Staehely had been demoted from his position as plaintiff's part-time supervisor at the time of her resignation, Staehely was still working with the company, and plaintiff continued to view the environment as hostile and offensive due to his ongoing conduct. Furthermore, the very presence of a prior harasser might create a hostile work environment for the victim of sexual harassment. See Ellison, 924 F.2d at 883 n. 19.
Aside from being subjected to repeated unwanted sexual advances by Staehely, plaintiff continued to voice her concerns to Raddle, who told her he would talk to Staehely again. On August 24, 1998, plaintiff was asked to leave Raddle's office so he could talk with Staehely. The following day, plaintiff noticed Staehely staring at her, notified Raddle of her concerns and escalated fear for her safety, and resigned.
CONCLUSION
Based on the foregoing, IT IS ORDERED that defendant's motion for summary judgment (doc. #12) on both plaintiff's sexual harassment and constructive discharge claims is DENIED.
IT IS SO ORDERED.