Walker-Jackson v. Smith's Food and Drug Centers, Inc., No. 2:2021cv02066 - Document 33 (D. Nev. 2023)
Court Description: ORDER granting in part and denying in part 26 Motion for Summary Judgment. It is ordered that Smiths Motion for Summary Judgment 26 is granted-in-part and denied-in-part as follows: (1) Smiths Motion for Summary Judgment is granted as to W alker-Jacksons retaliation claim; (2) Smiths Motion for Summary Judgment is denied as to Walker-Jacksons sexual harassment and negligent retention and supervision claims. Signed by District Judge Anne R. Traum on 5/23/2023. (Copies have been distributed pursuant to the NEF - CAH)
Download PDF
<![CDATA[
Walker-Jackson v. Smith&#039;s Food and Drug Centers, Inc. Doc. 33 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 1 of 15 1 2 UNITED STATES DISTRICT COURT 3 4 5 6 7 DISTRICT OF NEVADA KAREN WALKER-JACKSON, Individual, v. an 10 11 Defendants. 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER Plaintiff, SMITH’S FOOD AND DRUG CENTERS, INC., d/b/a SMITH’S FOODS, a Foreign Corporation; DOES 1 through 25, inclusive; and ROE CORPORATIONS 1 through 25, inclusive, 8 Case No. 2:21-cv-2066-ART-BNW Before the Court is Defendant Smith Food & Drug Centers, Inc. (“Smith’s”) Motion for Summary Judgment. (ECF No. 26). Plaintiff Karen Walker-Jackson (“Walker-Jackson”) brings claims of sexual harassment, and negligent hiring, training, and supervision against Smith’s under Title VII 42 U.S.C. § 2000e et seq. and NRS 613.330. (Compl.; ECF No. 12). Smith’s moves for summary judgment on all claims. Walker-Jackson conceded her retaliation claim in her Response to Smith’s Motion for Summary Judgment. (ECF No. 29 at 16). The Court therefore considers Walker-Jackson’s sexual harassment and negligent hiring claims. For the reasons discussed herein, the Court grants-in-part and denies-in-part Smith’s Motion. I. BACKGROUND Walker-Jackson was hired by Smith’s in February, 2007. (Id. ¶9). Walker-Jackson began working at Store 319 in July, 2018. (ECF No. 26 at 4). David Robson (“Robson”), a Wine Steward, also worked at Store 319. (Id.) Robson worked in the wine and alcohol section, about four aisles away from 1 Dockets.Justia.com Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 2 of 15 1 where Walker-Jackson worked, but routinely came near Walker-Jackson’s work- 2 area to check out customers’ liquor and retrieve expensive liquor from the cabinet 3 located near the checkout registers. (ECF No. 26 at 4). Robson would also 4 “wander around” at the front of the store pushing a shopping cart without an 5 apparent business reason for being at the front of the store. (ECF No. 26-1 Ex. 2 6 at 56:12-25). 1 7 In July 2018, about a week after Walker-Jackson began working at Store 319, 8 Robson began initiating sexual advances towards Walker-Jackson. (ECF No. 1-2 9 ¶10). Robson called Walker-Jackson “sweet baby angel,” an interaction that 10 Walker-Jackson found “creepy.” (ECF No. 26 at 5 n.19). Robson repeated these 11 phrases to Walker-Jackson weekly. (Id.) 12 In November or December 2018, Robson touched Walker-Jackson’s neck with 13 his finger and said, “I would like to bite you there.” (ECF No. 26 at 5 n.21). Walker- 14 Jackson reported Robson’s verbal advances and the neck-touching incident to 15 Smith’s HR representative Shelia Chapman (“Chapman”) that day or the next day. 16 (ECF No. 26-1 Ex. 2 at 40:1-25, 45:9-10). Walker-Jackson asked Chapman to 17 define sexual harassment for her, and subsequently described Robson’s conduct 18 to Chapman as sexual harassment. (Id. at 40:10-13). Walker-Jackson told 19 Chapman that she wanted the behavior to stop. (Id. at 44:1-3). Chapman told 20 Walker-Jackson that Robson was “just creepy Dave,” and told Walker-Jackson to 21 “not do anything.” (Id. at 41:3-9). No report was documented by Smith’s Human 22 Resources Department regarding this incident, and no disciplinary action was 23 taken against Robson in response to this complaint. (Id. at 40:1-25). According 24 25 26 27 28 Smith’s admits that all statements in Walker-Jackson’s deposition are admissible evidence. (See ECF No. 26-1 Ex. 1 ¶2 (“Attached hereto as Exhibit 2 is a true and correct copy of the Deposition of Plaintiff taken on December 13, 2022. Any statements therein are admissible evidence. . . .”)) Indeed, Smith’s admits that all statements in each of its exhibits to its Motion for Summary Judgment are admissible. (See id. ¶¶ 2-10). 1 2 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 3 of 15 1 to Robert Day (“Day”), Smith’s 30(b)(6) witness, reports of sexual harassment 2 made to store managers are not routinely documented at Smith’s. (ECF No. 29 3 Ex. 1 at 33:5-8). 4 Walker-Jackson sought transfer to another store due to Robson’s advances. 5 (ECF Nos. 29 at 8; 26-1 Ex. 2 at 42:12-25). Walker-Jackson told another Smith’s 6 employee, Kyle Spicer (“Spicer”), about Robson’s advances. (ECF No. 26-1 Ex. 2 7 at 39:6-15). Spicer told Walker-Jackson he would help her transfer to another 8 store. (Id.) On January 13th, 2019, Walker-Jackson transferred from Store 319 9 to Store 366. (ECF No. 26 at 5 n.27). 10 On August 4, 2019, Robson also began working at Store 366. (ECF No. 26 at 11 5). The same day, Robson hugged Walker-Jackson and said “let’s let people talk.” 12 (ECF No. 26 at 6 n.30). In response, Walker-Jackson said “eww, stop, get away.” 13 (Id.) Walker-Jackson verbally reported this hug incident to Spicer. (ECF No. 26-1 14 Ex. 2 at 64:19-25). 15 Robson immediately resumed his verbal sexual advances towards Walker- 16 Jackson, which occurred almost daily at Store 366. (Id. at 66:4). Walker-Jackson 17 reported these verbal advances to three customer service managers on separate 18 occasions. (Id. at 66:5-9). Walker-Jackson testified that Smith’s customer service 19 managers found Robson’s behavior “funny.” At least one customer service 20 manager “laughed about it and said; oh, here comes your boyfriend” when 21 Walker-Jackson reported Robson’s advances and told the customer service 22 managers she did not like Robson’s behavior. (Id. at 67:11-16). 23 On September 21, 2019, Robson asked Walker-Jackson if she was “as single 24 as [I] think you are” or “as single as I want you to be” while bagging groceries for 25 a customer. (ECF Nos. 26 at 5 n.32; 26-1 Ex. 5 at 1; 26-1 Ex. 2 at 69:6-7). Walker- 26 Jackson responded that she was married and showed Robson her wedding ring. 27 (ECF No. 26-1 Ex. 2 at 69:7-8). 28 On September 26, 2019, Robson grabbed Walker-Jackson and kissed her on 3 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 4 of 15 1 the cheek in the checkout area of Store 366. (ECF No. 26-1 at 72:3-14). Later 2 that day, Walker-Jackson told her supervisor, Kathy Dicosta (“Dicosta”) about 3 Robson’s forceful kiss, and other interactions with Robson. (Id. at 82:8-12). 4 Dicosta asked Walker-Jackson if she “yelled at him to stop” when Robson forcibly 5 kissed Walker-Jackson in the checkout area. (Id at 82:12-15). Dicosta took 6 Walker-Jackson to see Dicosta’s supervisor, Danny Sebron (“Sebron”). Sebron 7 and or Dicosta told Walker-Jackson to write a statement. (ECF No. 26-1 Ex. 2 at 8 83:16-24; 86:13-20). 9 On September 26 or 27, 2019, Walker-Jackson submitted a written statement 10 describing her treatment by Robson. (ECF Nos. 26 at 7 n.43; 1-2 ¶17). In it, 11 Walker-Jackson recounts the “single as I think you are” on September 21 and 12 the kiss incident on September 26. (ECF No. 26-1 Ex. 5 at 1). Walker-Jackson 13 noted that she had “told my front-end management about the touching and 14 endearments he does (sweet angel, babygirl) and have now gotten upper 15 management involved.” (Id.) Walker-Jackson explained that she avoided Robson 16 at work, would only “return to her area when he leaves” and explained that she 17 did “not appreciate or welcome his endearments or his touching my person as I 18 feel threatened.” (Id. at 2). 19 On September 27, 2019, Robson walked behind Walker-Jackson in the 20 computer room where offices were in Store 366. (ECF No. 26 at 7 n.39). Robson 21 began massaging Walker-Jackson’s shoulders. (Id.) Walker-Jackson told Robson 22 to stop touching her, but he continued. (Id.) Walker-Jackson stood up, pushing 23 the chair into Robson, and told him to never touch her again. (Id.) 24 On September 30, 2019, Smith’s issued a written warning to Robson, which 25 he signed. (ECF No. 26-1 Ex. 6). The “reason for warning” was that Robson 26 “violated the sexual harassment and other forms of harassment policy that was 27 put in place.” The warning required Robson to redo training pertaining to the 28 harassment policy and re-read and sign the policy before his next working shift. 4 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 5 of 15 1 (Id.) The warning noted that “any further violation pertaining to this policy will 2 result in immediate termination of employment any retaliation towards any 3 employee or employees involved will also result in termination of employment.” 4 (Id.) 5 On or around September 30, 2019, Sebron told Robson that Walker-Jackson 6 had been the one who reported his behavior. (ECF No. 26-1 Ex. 2 at 91:21-22). 7 Walker-Jackson understood that her complaint would be anonymous. (Id. at 8 96:23-24). Walker-Jackson reported Robson’s behavior to a hotline Smith’s 9 provided for reporting sexual harassment after she learned that Robson was not 10 punished beyond a written warning and that Sebron revealed to Robson that 11 Walker-Jackson reported his behavior. (Id. at 131:17-25). 12 Spicer offered to transfer Walker-Jackson to another store. (Id. at 96:11-13, 13 97:13-17). Walker-Jackson refused, perceiving such a transfer to be a 14 punishment. (Id.) Spicer offered to move Walker-Jackson to a later shift, but 15 Walker-Jackson refused and inquired why Robson’s hours would not be moved 16 instead. (Id. at 98:1-12). 17 On October 8, 2019, Walker-Jackson filed another complaint against Robson 18 with Smith’s Human Resources Department. (ECF Nos. 1-2 ¶21; 26-1 Ex. 7). She 19 explained “[s]ince my initial complaint against [Robson] the following issues have 20 been happening since he was told I was his accuser: his presence in or near my 21 work area more often, although no verbal exchange, just walking past me. Also 22 when I have glanced around I’ve noticed a few times he’s been in or around my 23 work area, he’s standing there staring (glaring) at me. It’s enough that other 24 associates have noticed and have mentioned it. I feel his actions are intimidating 25 and hostile. S.D. Danny [Sebron] addressed [the] issue of him coming on front- 26 end Monday October 7th and I was relieved at the intervention. This is a second 27 written complaint I felt needed to be documented.” (ECF No. 26-1 Ex. 7). 28 Two of Walker-Jackson’s coworkers wrote notes to Smith’s explaining that 5 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 6 of 15 1 they had “seen David . . . walk past [Walker-Jackson] with a glare” and “walk by 2 her when he didn’t need to in a way that seemed like he was trying to intimidate 3 her.” (ECF No. 29 Ex. 7). 4 Walker-Jackson testified that Robson glared at Walker-Jackson while she was 5 working nearly every day in late 2019 and throughout 2020 until Robson was 6 suspended. (ECF No. 26-1 Ex. 2 at 114:21-25). Walker-Jackson verbally reported 7 Robson’s glaring and hostile behavior to Spicer twice and Sebron once after 8 submitting her October 8, 2019 complaint. (Id. at 117:9-21). When Walker- 9 Jackson verbally reported Robson’s behavior to Sebron he yelled at her and asked 10 her what she wanted him to do. (Id. at 118:9-14). 11 Walker-Jackson filed her EEOC Charge in or around November, 2019. (ECF 12 No. 26 at 8). At some point thereafter, Smith’s conducted a post-Charge 13 investigation of Robson’s behavior. (Id.) 14 On August 31, 2020—nearly eleven months after Walker-Jackson filed her 15 second complaint—Smith’s issued Robson a second warning and suspended him. 16 (ECF No. 26-1 Ex. 8). About a week later, on September 9, 2020, Smith’s fired 17 Robson. (ECF No. 26-1 Ex. 9). 18 On July 27, 2021, the Nevada Equal Rights Commission closed Walker- 19 Jackson’s complaint and issued a state right-to-sue notice. (ECF No. 26-1 at 10). 20 Day testified as Smith’s FRCP 30(b)(6) witness and described Smith’s policy 21 for reporting sexual harassment complaints. Smith’s policy does not mandate 22 reporting to Human Resources when an employee at a given store complains. 23 (ECF No. 29 Ex. 1 at 31:19-22). Rather, location managers, personnel directors, 24 and district managers all have discretion to handle complaints on their own or 25 report them to their superiors. (Id. at 31:1-32:22). Day testified that reports of 26 sexual harassment made to store managers are not routinely documented, and 27 that Smith’s does not have a policy requiring store managers to document 28 complaints of sexual harassment. (Id. at 33:5-8). Similarly, Day testified that 6 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 7 of 15 1 Smith’s does not have a policy requiring “escalated” complaints to a personnel 2 director to make any written record of the complaint. (Id. at 39:20-24). 3 II. LEGAL STANDARD 4 “The purpose of summary judgment is to avoid unnecessary trials when there 5 is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t 6 of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary 7 judgment is appropriate when the pleadings, the discovery and disclosure 8 materials on file, and any affidavits “show there is no genuine issue as to any 9 material fact and that the movant is entitled to judgment as a matter of law.” 10 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there 11 is a sufficient evidentiary basis on which a reasonable fact-finder could find for 12 the nonmoving party and a dispute is “material” if it could affect the outcome of 13 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 14 248-49 (1986). Where reasonable minds could differ on the material facts at 15 issue, however, summary judgment is not appropriate. See id. at 250-51. “The 16 amount of evidence necessary to raise a genuine issue of material fact is enough 17 ‘to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First 19 Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). The court must 20 view the facts in the light most favorable to the non-moving party and give it the 21 benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. 22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must not 23 weigh the evidence or determine the truth of the matter, but only determine 24 whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 25 1054 (9th Cir. 1999). 26 The party seeking summary judgment bears the initial burden of informing 27 the court of the basis for its motion and identifying those portions of the record 28 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 7 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 8 of 15 1 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 2 shifts to the non-moving party to “set forth specific facts showing that there is a 3 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 4 not rely on denials in the pleadings but must produce specific evidence, through 5 affidavits or admissible discovery material, to show that the dispute exists,” Bhan 6 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more 7 than simply show that there is some metaphysical doubt as to the material facts.” 8 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. 9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “[V]ery little evidence 10 [is required] to survive summary judgment in a discrimination case because the 11 ultimate question is one that can only be resolved through a ‘searching inquiry’— 12 one that is most appropriately conducted by the fact finder upon a full record.” 13 Reynaga v. Roseberg Forest Prod., 847 F.3d 678, 691 (9th Cir. 2017) (quoting 14 Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). 15 III. DISCUSSION 16 Smith’s argues that Walker-Jackson’s negligent hiring, training ,and retention 17 claim fails because employers owe no duty to provide a working environment free 18 from sexual harassment, and that Walker-Jackson’s sexual harassment claim 19 fails because Walker-Jackson has not stated facts rising to severe and pervasive 20 harassment and has not shown that Smith’s is liable for Robson’s conduct. (ECF 21 No. 26 at 2). 22 The Court finds that Walker-Jackson has presented genuine disputes of 23 material fact as to both her negligent retention claim and her sexual harassment 24 claim. Therefore, the Court denies Smith’s Motion for Summary Judgment, (ECF 25 No. 26), as to these claims. As Walker-Jackson has conceded her retaliation 26 claim, (ECF No. 29 at 16), the Court grants Smith’s Motion for Summary 27 Judgment (ECF No. 26) as to Walker-Jackson’s retaliation claim. 28 8 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 9 of 15 1 A. Sexual Harassment 2 Title VII and its Nevada state counterpart, NRS 613.330 prohibit sex 3 discrimination in employment. See 42 U.S.C. § 2000e et seq.; NRS 613.330. 4 Claims for unlawful discrimination under NRS 613.330 are analyzed under the 5 same principles applied to Title VII claims. See Samuels v. We’ve Only Just Begun 6 Wedding Chapel, Inc., 154 F. Supp. 3d 1087, 1093 (D. Nev. 2015) (citing Apeceche 7 v. While Pine Co., 615 P.2d 975, 977-78 (Nev. 1980)). 8 “To establish sex discrimination under a hostile work environment theory, a 9 plaintiff must show she was subjected to sex-based harassment that was 10 sufficiently severe or pervasive to alter the conditions of employment, and that 11 her employer is liable for this hostile work environment.” Christian v. Umpqua 12 Bank, 984 F.3d 801, 809 (9th Cir. 2020) (citing Little v. Windermere Relocation, 13 Inc., 301 F.3d 958, 966 (9th Cir. 2001)). 14 All incidents of harassment must be evaluated together. See Christian, 984 15 F.3d at 809. The Court’s obligation is to “‘consider all the circumstances,’ 16 including those incidents that do not involve verbal communication between the 17 plaintiff and harasser, physical proximity, or physical or sexual touching.” Id. at 18 810 (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)). 19 1. Severe and Pervasive Conduct 20 Viewing all the evidence in the light most favorable to Walker-Jackson, the 21 Court concludes that genuine disputes of material fact exist as to the severity or 22 pervasiveness of the harassment. 23 In evaluating whether conduct is sufficiently severe or pervasive, a court must 24 “consider all the circumstances, including ‘the frequency of the discriminatory 25 conduct; its severity; whether it is physically threatening or humiliating, or a 26 mere offensive utterance; and whether it unreasonably interferes with an 27 employee’s work performance.” Id. (quoting Davis, 520 F.3d at 1088). “The 28 required level of severity or seriousness ‘varies inversely with the pervasiveness 9 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 10 of 15 1 or frequency of the conduct.’” Id. (quoting Nichols v. Azteca Rest. Enters., Inc., 256 2 F.3d 864, 872 (9th Cir. 2001). Here, Walker-Jackson experienced Robson’s behavior as an escalating pattern 3 4 of harassment that began with weekly verbal sexual innuendo and 5 advancements, progressed to nonconsensual touching, and then to forced kissing 6 and nonconsensual massage. Robson’s harassment of Walker-Jackson took 7 place over more than two years, at two different stores. Walker-Jackson 8 repeatedly told Robson to stop and otherwise indicated she was not interested in 9 his advances, but he refused to listen. After Smith’s issued a written warning to 10 Robson, he began leering and staring at Walker-Jackson in such a way that made 11 her feel threatened, and Walker-Jackson’s coworkers agreed that Robson was 12 acting in a way that signaled his intention to intimidate her. The harassment 13 Walker-Jackson endured at both Store 319 and 366 involved the “same type” of 14 conduct, “occurred relatively frequently,” and was perpetrated by the same 15 individual. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120-21 (2002). 16 Based on the facts alleged and construing all evidence in the light most 17 favorable to Walker-Jackson, the evidence is more than sufficient to create a 18 triable issue of fact as to whether Robson’s harassment was sufficiently severe or 19 pervasive enough to alter the conditions of Walker-Jackson’s employment. 20 2. Employer Liability 21 Viewing all evidence in the light most favorable to Walker-Jackson, the Court 22 concludes that genuine disputes of material fact exist as to whether Smith’s took 23 prompt, appropriate, and effective action to stop Robson’s harassment. 24 “[A]n employer is liable for a hostile work environment created by a plaintiff's 25 co-worker if the employer ‘knew, or should have known, about the harassment 26 and failed to take prompt and effective remedial action.’” Reynaga v. Roseburg 27 Forest Prod., 847 F.3d 678, 689 (9th Cir. 2017) (quoting E.E.O.C. v. Prospect 28 Airport Servs., Inc., 621 F.3d 991, 1001 (9th Cir. 2010)). “Remedial action must 10 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 11 of 15 1 include some form of disciplinary measures . . . which must be “proportionate[] 2 to the seriousness of the offense.” Id. (quoting Ellison v. Brady, 924 F.2d 872, 882 3 (9th Cir. 1991)). “[T]he employer’s corrective measures must be reasonably 4 calculated to end the harassment; the reasonableness of the corrective action will 5 depend on, inter alia, the employer’s ability to stop the harassment and the 6 promptness of the response.” Christian, 984 F.3d at 811-12 (quoting Freitag v. 7 Ayers, 468 F.3d 528, 539-40 9th Cir. 2006) as amended (Nov. 3, 2006)). 8 “Effectiveness is measured not only by ending the current harassment but also 9 by ‘deterring future harassment—by the same offender or others. If 1) no remedy 10 is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” Id. 11 (quoting Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1528-29 (9th Cir. 1995)). 12 Whether Smith’s took prompt, appropriate, and effective action presents a 13 genuine issue of material fact. When Walker-Jackson complained about Robson’s 14 behavior at Store 319, she was rebuffed and told not to do anything. Robson’s 15 behavior was clearly known to Smith’s because its Human Resources 16 representative had a nickname for him—“Creepy Dave.” Once Robson’s behavior 17 escalated to forced kissing at Store 366, Smith’s issued a warning that required 18 him to read the relevant harassment policies before his next shift. After receiving 19 this warning, Robson attempted to intimidate Walker-Jackson by standing near 20 her workstation and staring at her nearly every day between late-September 21 2019, and his suspension in late-August 2020. Robson’s behavior was noticeable 22 and concerning to multiple other Smith’s employees, whose notes confirming his 23 behavior are in the record. Despite written and verbal complaints to various 24 supervisors at multiple levels by Walker-Jackson, Smith’s did not investigate or 25 otherwise discipline Robson for nearly a year after he began staring at Walker- 26 Jackson in September 2019. A reasonable factfinder could find Smith’s action of 27 issuing a written warning to Robson ineffective because Robson did not elect to 28 cease his harassment of Walker-Jackson but merely modified it from unwanted 11 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 12 of 15 1 touching and verbal advances to leering. See Christian, 984 F.3d at 813; Fuller, 2 47 F.3d at 1529. 3 Further, a jury could find that Smith’s eventual suspension and firing of 4 Robson—occurring more than two years after Robson’s verbal harassment 5 initially began—was “too little too late.” Id. (citing Fuller, 47 F.3d at 1528 (remedy 6 must be prompt); Freitag, 468 F.3d at 540 (same)). 7 Finally, a jury could also find that Smith’s response of offering Walker- 8 Jackson a transfer from Store 366 to another store or changing her work hours 9 unreasonably burdened Walker-Jackson. See Christian, 984 F.3d at 813 (citing 10 Intlekofer v. Turnage, 973 F.2d 773, 780 n.9 (9th Cir. 1992) (“[H]arassment is to 11 be remedied through actions targeted at the harasser, not at the victim.”)). “[A] 12 victim of sexual harassment should not have to work in a less desirable location 13 as a result of an employer’s remedy for sexual harassment.” Id. (quoting Ellison 14 v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)). 15 “Because gender-based harassment threatens the ability of its victims to thrive 16 in the workplace, employers must act promptly to remedy its effects and prevent 17 its recurrence.” Christian, 984 F.3d at 814. Here, genuine issues of material fact 18 exist as to both whether Robson’s harassment was sufficiently severe or pervasive 19 to alter the conditions of Walker-Jackson’s work environment, and as to whether 20 Smith’s met its burden to stop Robson’s harassment and prevent it from 21 recurring. 22 23 Therefore, the Court denies Smith’s Motion for Summary Judgment as to Walker-Jackson’s harassment claim. (ECF No. 26). 24 B. Negligent Hiring and Retention 25 Walker-Jackson alleges that Smith’s was negligent in its supervision and 26 retention of Robson. 27 Nevada recognizes the tort of negligent hiring, training, supervision, and 28 retention. Hall v. SSF, Inc., 930 P.2d 94, 99 (Nev. 1996). “To state a claim for 12 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 13 of 15 1 negligent training and supervision in Nevada, [Walker-Jackson] must show ‘(1) a 2 general duty on the employer to use reasonable care in the training and/or 3 supervision of employees to ensure that they are fit for their positions; (2) breach; 4 (3) injury; and (4) causation.’” Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 5 1028 (D. Nev. 2013) (quoting Reece v. Rep. Servs., Inc., 2011 WL 868386, *11 (D. 6 Nev. Mar. 10, 2011)). “In Nevada, an employer ‘has a duty to use reasonable care 7 in the training, supervision, and retention of his or her employees to make sure 8 the employees are fit for their positions.’” Blanck v. Hager, 360 F.Supp.2d 1137, 9 1157 (D. Nev. 2005) (quoting Hall, 930 P.2d at 99). “Because the question of 10 whether reasonable care was exercised almost always involves factual inquiries, 11 it is a matter that must generally be decided by a jury.” Okeke, 927 F. Supp. 2d 12 at 1028 (quoting Butler ex rel. Biller v. Bayer, 123 Nev. 450, 168 P.3d 1055, 1065 13 (2007)). Although the Nevada Supreme Court has not yet decided the question, 14 several courts have concluded that physical harm is not necessary to state a 15 claim for negligent hiring and supervision in Nevada, and this Court agrees. See 16 Ramirez v. Wynn Las Vegas, LLC, 2022 WL 3715751 at *11 (D. Nev. Aug. 29, 17 2022); see also Chocolate Magic Las Vegas LLC v. Ford, 2018 WL473006 at *2-*3 18 (D. Nev. Jan. 17, 2018); Sadler v. PacifiCare of Nev., 340 P.3d 1264 (Nev. 2014); 19 Russo v. Shac, LLC, 2021 WL 5370814 at *9 (Ct. App. Nev. Nov. 17, 2021). 20 Here, the Court finds that there is a genuine dispute of material fact as to 21 whether Smith’s negligently supervised and retained Robson. Walker-Jackson 22 argues that Smith’s negligently supervised and retained Robson when he began 23 staring at Walker-Jackson after Smith’s issued its initial written warning to 24 Robson. (ECF No. 29 at 15-16). 25 A reasonable jury could find that Smith’s negligently supervised and retained 26 Robson after Smith’s issuance of the first written warning to Robson, which 27 included language indicating that any retaliation would result in immediate 28 termination. Subsequently, Walker-Jackson made numerous written and verbal 13 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 14 of 15 1 complaints to managers at Smith’s that Robson was attempting to intimidate her 2 through near-daily staring. Robson’s behavior was severe enough that both 3 Walker-Jackson and other employees at Smith’s perceived it as threatening. And, 4 Smith’s did not issue Robson another written warning for about eleven months 5 after the first written warning which indicated that termination would result from 6 any retaliation. 7 Walker-Jackson argues that Smith’s had a duty to use reasonable care in the 8 supervision and retention of employees. Viewing the evidence in the light most 9 favorable to her, Walker-Jackson has raised a genuine dispute over whether 10 Smith’s breached its duty to do so. Therefore, the Court denies Smith’s Motion 11 for Summary Judgment as to Walker-Jackson’s negligent retention claim. (ECF 12 No. 26). 13 IV. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several 15 cases not discussed above. The Court has reviewed these arguments and cases 16 and determines that they do not warrant discussion as they do not affect the 17 outcome of the motions before the Court. 18 The Court further notes that, having undertaken a detailed review of the 19 record, no oral argument is required on Defendant’s Motion for Summary 20 Judgment. (ECF No. 26). 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 14 Case 2:21-cv-02066-ART-BNW Document 33 Filed 05/23/23 Page 15 of 15 1 It is ordered that Smith’s Motion for Summary Judgment (ECF No. 26) is 2 granted-in-part and denied-in-part as follows: (1) Smith’s Motion for Summary 3 Judgment is granted as to Walker-Jackson’s retaliation claim; (2) Smith’s Motion 4 for Summary Judgment is denied as to Walker-Jackson’s sexual harassment and 5 negligent retention and supervision claims. 6 It is so ordered. 7 8 DATED THIS 23rd day of May 2023. 9 10 11 12 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
