Wahlman et al v. Datasphere Technologies, Inc., No. 2:2012cv01997 - Document 68 (W.D. Wash. 2014)

Court Description: ORDER granting in part and denying in part 37 39 Defendant's Motion for Summary Judgment, by Judge James L. Robart.(MD)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 REBECCA WAHLMAN, et al., Plaintiffs, 11 ORDER ON MOTIONS FOR SUMMARY JUDGMENT v. 12 13 CASE NO. C12-1997JLR DATASPHERE TECHNOLOGIES, INC., 14 Defendant. 15 I. INTRODUCTION 16 Before the court are Defendant DataSphere Technologies Inc.’s (“DataSphere”) 17 separate motions for summary judgment against Plaintiff Rebecca Pinto1 (Pinto Mot. 18 19 20 21 22 1 Formerly Rebecca Wahlman, as reflected in the case caption. (See Resp. (Dkt. # 53) at 2.) ORDER- 1 1 (Dkt. # 39)), and Plaintiff Shari Graber (Graber Mot. (Dkt. # 37)).2 The court has heard 2 oral argument and considered the motions, all submissions filed in support and opposition 3 thereto, the balance of the record, and the applicable law. Being fully advised, the court 4 GRANTS in part and DENIES in part both motions as discussed below. 5 6 II. BACKGROUND This is an employment discrimination case. Ms. Pinto and Ms. Graber contend 7 that they were “exposed to shocking working conditions, including repeated verbal abuse 8 from supervisory employees using sexist slurs, . . . [and] sexist and racist e-mail 9 messages that were condoned and encouraged by management” while employed at 10 DataSphere. (Compl. ¶ 12.) Plaintiffs bring federal and state law claims alleging that 11 DataSphere created a hostile work environment and discriminated against them on the 12 basis of their sex. (Compl. (Dkt. # 1) ¶ 1.) 13 The dispute arises from Plaintiffs’ employment as sales account executives at 14 DataSphere. DataSphere is an “[i]nternet-based media advertising company 15 headquartered in Bellevue, Washington.” (O’Neil Decl. (Dkt. ## 38, 40) ¶ 3.) Ms. 16 17 18 19 20 21 22 2 The court notes that DataSphere filed separate motions for summary judgment against each Plaintiff in contravention of Local Rule 7(e)(3), which prohibits contemporaneous dispositive motions. See Local Rules W.D. Wash. LCR 7(e)(3). DataSphere’s motions are contemporaneous dispositive motions and DataSphere should have not filed them together. This is sanctionable conduct. The court also notes that DataSphere’s motions may be overlegnth as they contain significant footnoting of DataSphere’s arguments and other relevant material. See Local Rules W.D. Wash. LCR 7(e)(3), (4), (6); Glassybaby, LLC v. Provide Gifts, Inc., No. 110380MJP, 2011 WL 4571876, at *4 (W.D. Wash. Sept. 20, 2011) (“As a warning to all parties, the court strongly urges parties to avoid footnotes, particularly for any substantive purpose. The Court is not in the practice of reading lengthy footnotes where they are used merely as a way to avoid page limitations.”). Nevertheless, the court has decided to consider the merits of DataSphere’s motions in the interest of streamlining the upcoming trial. ORDER- 2 1 Graber was hired as an account executive by DataSphere in May 2011, and Ms. Pinto 2 was hired as an account executive in September 2011. (Compl. ¶¶ 5-6.) As account 3 executives, Plaintiffs sold advertising space on local news websites. (See Graber Dep. 4 (Dkt. ## 42-3, 58) at 94; Pinto Dep. (Dkt. ## 42-1, 42-2, 61, 62, 63) at 37.) DataSphere’s 5 account executives are organized into teams, each with a unique name. (O’Neil Decl. 6 ¶ 3.) Plaintiffs were both members of “The Force.” (Id. ¶ 7.) 7 Plaintiffs testify that they were sent sexist and sexually explicit e-mail messages 8 during their employment at DataSphere. (Pinto Dep. at 115; Graber Dep. at 117.) These 9 e-mail messages include one in which a manager celebrates a recent sale by saying “[t]he 10 sales are coming in so fast its creepy! Just like this picture.” (Resp. (Dkt. # 53) at 6; see 11 Carlson Decl. Ex. D (Dkt. # 56) at 1.) The accompanying picture depicts a grown man 12 with his pants unzipped facing a little boy; another man’s bald head protrudes from the 13 grown man’s unzipped pants and seems to be yelling at the little boy. (See id.) The bald 14 man appears to symbolize a man’s penis and the scene portrays a pedophilic theme. 15 Other e-mails were sent by Plaintiffs’ “Sales Manager” Reed Mattson.3 (Resp. at 6.) In 16 one e-mail Mr. Mattson offers to buy lunch for his sales team if they get five sales, and 17 includes a picture of a naked woman covered in sushi. (Carlson Decl. Ex. D at 9.) Mr. 18 Mattson also sent another e-mail to encourage sales that reads “Get them screamin’ ‘Yes’ 19 like Sally does . . . What’s in it for you besides the thrill? $200 of course!” and includes 20 a picture of a scene from the film “When Harry met Sally.” (Id. at 16 (emphasis in 21 3 22 Mr. Mattson was Plaintiffs’ supervisor. (O’Neil Decl. ¶ 7.) ORDER- 3 1 original).) In the scene and picture, the main female character vocally simulates an 2 orgasm loudly in the middle of a restaurant. (See id.)4 Finally, other e-mails feature rape 3 jokes including one with the text: “[h]e’s climbing in your windows[,] He’s snatchin 4 your people up[,] So Hide your kids, hide your wife[,] Cause Luke rapin errbody out 5 there!!!!”5 (Id. at 2.) Plaintiffs testify that they found these and other e-mails with sexist 6 themes “offensive” and “inappropriate.” (Graber Dep. at 117; Pinto Dep. at 107, 111.) 7 Additionally, Ms. Pinto testifies that her “Team Captain” on The Force, Antonio 8 Jones,6 once shot her in the breast with a “Nerf” gun. She states that Mr. Jones walked 9 up to her, pointed the Nerf gun at her, and shot her in the breast. (Pinto Dep, at 75.) Ms. 10 Pinto felt “mortified and humiliated” because of this incident. (Id.) With regard to Nerf 11 guns, DataSphere’s human resources report states, “Nerf guns are part of DataSphere’s 12 casual and fun work environment; employees play with these toys during work hours, 13 including shooting each other in jest.” (O’Neil Decl. (Dkt. ## 38-4, 40-4) Ex. H at 10.) 14 15 4 This e-mail was sent on June 28, 2011, before Ms. Pinto was employed at DataSphere. 16 (See Carlson Decl. Ex. D. at 16.) However, Ms. Graber was employed at DataSphere during this 17 time and received this e-mail. (Id.) 5 This is a reference to the popular YouTube video “Bed Intruder Song,” which has been 18 viewed over 119,000,000 times. See Auto-Tune the News, “BED INTRUDER SONG!!!” YouTube (Jul. 31, 2010), 19 http://www.youtube.com/watch?v=hMtZfW2z9dw&list=RDEzNhaLUT520. 6 Mr. Jones’ position as “Team Captain” was non-supervisory. Instead, “[t]he Team Captain role [is] a non-management lead role that DataSphere uses as a training and proving 21 ground for potential new Sales Managers.” (O’Neil Decl. (Dkt. ## 38, 40) ¶ 8.) “As Team Captain, Antonio Jones had no authority to hire, fire, discipline, or otherwise make any substantive employment decisions concerning anyone . . . .” (Id.) 20 22 ORDER- 4 1 Plaintiffs also testify that their Team Captain Mr. Jones and supervisor Mr. 2 Mattson consistently called them derogatory names like “bitch” and “cunt.” (Resp. at 23 3; Pinto Dep. at 46-47, 150, 152-53; Graber Dep. at 95-98, 100-02, 109-10, 117-19, 120.) 4 Plaintiffs’ testimony is corroborated by Chuck Siegmund, another account executive on 5 The Force, who reported to DataSphere’s “Sales Director” Josh Hartnett on September 6 30, 2011, that Mr. Jones “engage[ed] in obscene verbal outbursts on the sales floor.” 7 (O’Neil Decl. (Dkt. ## 38, 40) ¶ 8.) Mr. Jones’ “verbal outburst” on September 30, 2011, 8 was directed at Ms. Pinto. (Pinto Dep. at 49-50; see also Graber Dep. 104-06.)7 During 9 this outburst Mr. Jones punched the wall of Ms. Pinto’s cubicle, told her that she was 10 “fucking worthless,” and called her a “fucking bitch.” (Pinto Dep. at 50-51.) After the 11 September 30 outburst, Mr. Hartnett discussed the incident with Mr. Jones but did not 12 discipline him. (See O’Neil Decl. Ex. D at 16-17.) After not being disciplined, Mr. Jones 13 announced to the team that he was “untouchable” and that he could do whatever he 14 wanted. (Pinto Dep. at 50-51.) Ms. Pinto was verbally threatened again by Mr. Jones on 15 October 11, 2011, after he found out she imitated him during a team meeting at Mr. 16 Mattson’s request. (Pinto Dep. at 87-91.) During the October 11 confrontation, Mr. 17 Jones again called Ms. Pinto a “fucking bitch” and threatened that she would be kicked 18 off the sales team if she imitated him again. (Pinto Dep. at 87.) Following this incident, 19 20 7 DataSphere disputes that the September 30, 2011, outburst by Mr. Jones was directed at Ms. Pinto; DataSphere argues that this outburst was not aimed at anyone in particular. (See Pinto 21 Mot. at 5; see also O’Neil Decl. ¶¶ 10, 13; O’Neil Decl. Ex. D (Dkt. ## 38-4, 40-4) at 9.) However, on summary judgment, the evidence of the opposing party—Ms. Pinto in this case—is 22 to be believed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985). ORDER- 5 1 Ms. Pinto complained to DataSphere’s management about Mr. Jones’ conduct and 2 ultimately resigned on November 7, 2011. (Pinto Dep. at 91-94; O’Neil Decl. ¶ 16.) Ms. 3 Graber also quit her job at DataSphere during this same timeframe—on October 20, 4 2011. (O’Neil Decl. ¶ 14.) Ms. Graber quit the day after Mr. Jones threatened her and 5 called her a “fucking bitch” among other expletives, following a meeting she had with 6 DataSphere’s “Human Resources Director” Raymond Granaada about Mr. Jones’ 7 conduct. (Graber Decl. at 109.) Both Plaintiffs contend that they were “constructively 8 discharged” and forced to resign. (Compl. ¶¶ 19, 21, 25, 29, 33, 37, 41.) 9 After Mr. Siegmund’s and Ms. Pinto’s reports, DataSphere assigned Ms. Pinto to a 10 different sales team and investigated Mr. Jones’ and Mr. Mattson’s conduct. (See O’Neil 11 Decl. Ex. H. at 6.) In its report on the investigation, DataSphere concluded that Mr. 12 Jones should be given a “stern written warning” and that he should not be considered for 13 any managerial roles. (Id. at 13-14.) With regard to Mr. Mattson, the report concluded 14 that he should also be given a written warning, “indicating that he could have handled the 15 situation better.” (Id.) DataSphere’s report also concluded that it was unlikely that Mr. 16 Mattson did not know about Mr. Jones’ ongoing inappropriate behavior. (Id. at 8.)8 Both 17 18 8 19 Based on the substantial evidence from multiple team members about [Mr. Jones’] loud and outlandish behavior, it’s difficult to believe that [Mr. Mattson] was not aware to some degree of what [Mr. Jones] was doing and that the way he was behaving went beyond the standards of acceptable behavior for someone who works in the DataSphere environment, especially once [Mr. Jones] was moved into the Team Captain role. [Mr. Mattson] had lots of opportunities as team manager moving about the floor to observe [Mr. Jones] in one of his “outbursts”. Moreover, the witnesses reported enough outbursts by [Mr. Jones] over multiple 20 21 22 With regard to Mr. Mattson, DataSphere’s report states: ORDER- 6 1 Plaintiffs also testify that Mr. Mattson knew about Mr. Jones’ behavior because he 2 witnessed it. (See, e.g., Graber Dep. at 95-102, 109-10; Pinto Dep. at 46, 84-86.) Before 3 DataSphere was able to issue a written warning to Mr. Jones, he threatened to “kick the 4 ass” of a male employee, and DataSphere terminated his employment on November 15, 5 2011. (O’Neil Decl. ¶ 18.) 6 After leaving their roles at DataSphere, Plaintiffs filed discrimination charges 7 against the company with the Equal Employment Opportunity Commission (“EEOC”). 8 (Id. ¶ 22.) The EEOC declined to take Plaintiffs’ case and issued a right to sue letter. 9 (Compl. ¶ 11.) Thereafter, on November 13, 2012, Plaintiffs filed this lawsuit. (See 10 generally Compl.) Plaintiffs bring claims for violations of Title VII of the Civil Rights 11 Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Washington’s Law Against 12 Discrimination (“WLAD”), chapter 49.60 RCW, contending that DataSphere subjected 13 them to a hostile work environment, treated them differentially, and retaliated against 14 them because of their sex. (Id. ¶¶ 20-30.)9 Plaintiffs claim that they were constructively 15 discharged because of DataSphere’s hostile work environment. (See id. ¶ 19.) Plaintiffs 16 also bring state law tort claims against DataSphere for intentional and negligent infliction 17 18 19 months even before [Ms. Pinto] joined the team that [Mr. Mattson] must have been aware of one or more of these incidents. If he was entirely unaware of them, then he was failing to provide proper management oversight. 20 (O’Neil Decl. at 8 (emphasis in original).) 9 Plaintiffs also reference a “Section 1981” claim under 42 U.S.C. § 1981 on the first page of their complaint, however, Plaintiffs do not mention this claim anywhere else in their pleadings. (See Compl. at 1; see generally Resp.) Plaintiffs conceded at oral argument that they 22 do not, in fact, bring any claim under this statute. 21 ORDER- 7 1 of emotional distress, and negligent hiring, supervision, and training. (Id. ¶¶ 31-38.) As 2 redress, Plaintiffs seek money damages, injunctive relief, attorney’s fees, and punitive 3 damages. (Id. ¶ 1.) 4 DataSphere filed separate motions for summary judgment against each Plaintiff 5 with respect to all of their claims on January 16, 2014. (See Graber Mot.; Pinto Mot.) In 6 its motions, DataSphere argues that there are no material factual disputes and: (1) 7 Plaintiffs’ hostile work environment and constructive discharge claims fail because they 8 do not meet the requisite harassment standard and because the complained-of conduct 9 cannot be imputed to DataSphere (Graber Mot. at 11-19; Pinto Mot. at 11-20); (2) 10 Plaintiffs have failed to provide evidence establishing prima facie cases of differential 11 treatment or retaliation (Graber Mot. at 19-22; Pinto Mot. at 20-23); and (3) Plaintiffs’ 12 state tort claims are duplicative of their harassment claims and must be dismissed (Graber 13 Mot. at 22-23; Pinto Mot. at 23-24). With respect to Ms. Graber, DataSphere also argues 14 that she does not have standing to bring her claims because she is a debtor in a pending 15 Chapter 13 bankruptcy. (Graber Mot. at 9-11.) Plaintiffs filed a consolidated response 16 on February 5, 2014. (See Resp.) Plaintiffs argue that there are material factual issues 17 about whether the evidence meets the requisite standard for hostile work environment and 18 constructive discharge claims and also whether the evidence establishes a prima facie 19 case of retaliation. (Id. at 7-12, 13-14.) Plaintiffs do not rebut DataSphere’s argument 20 that they do not establish a prima facie case of differential treatment. (See generally id.) 21 Additionally, Plaintiffs argue that there is no legal basis to dismiss their duplicative state 22 tort claims or to dismiss Ms. Graber’s claims solely because she is a Chapter 13 ORDER- 8 1 bankruptcy debtor. (Id. at 12-13, 15-16.) DataSphere replied on February 11, 2014, 2 asserting again the arguments in its original motions (see generally Graber Reply 3 (Dkt. #63); Pinto Reply (Dkt. # 66)), and moving to strike some of the evidence relied 4 upon by Plaintiffs in their response (Graber Reply at 7 n.25; Pinto Reply at 2 n.5).10 5 III. ANALYSIS 6 A. Summary Judgment Standards 7 Summary judgment is appropriate if the evidence, when viewed in the light most 8 favorable to the non-moving party, demonstrates “that there is no genuine dispute as to 9 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 10 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty. of L.A., 11 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing 12 there is no genuine issue of material fact and that he or she is entitled to prevail as a 13 matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or her burden, the 14 non-moving party “must make a showing sufficient to establish a genuine dispute of 15 material fact regarding the existence of the essential elements of his case.” Galen, 477 16 F.3d at 658. 17 18 10 In its reply, DataSphere moves to strike portions of Exhibit D to the Carlson Declaration. (See Graber Reply at 7 n.25; Pinto Reply at 2 n.5.) DataSphere claims that Exhibit 20 D contains e-mails that are irrelevant because they predate Plaintiffs’ employment and are not sexual in nature. (Id.) The court has not relied on any e-mails that predate Plaintiffs’ 21 employment in coming to its decision, and therefore, does not reach DataSphere’s request to strike these e-mails. However, to the extent Exhibit D contains non-sexual e-mails, these e-mails support Plaintiffs’ emotional distress claims and are relevant. Thus, the court DENIES 22 DataSphere’s motion to strike with respect to any non-sexual e-mails in Exhibit D. 19 ORDER- 9 1 The purpose of summary judgment is to pierce the pleadings and to assess the 2 evidence in order to see whether there is a genuine need for trial. Matsushita Elec. Indus. 3 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In resolving a summary judgment 4 motion, the evidence of the opposing party is to be believed, Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 255 (1985), and all reasonable inferences that may be drawn from the 6 facts placed before the court must be drawn in favor of the opposing party, Matsushita, 7 475 U.S. at 587. However, the court may not weigh evidence or make credibility 8 determinations in analyzing a motion for summary judgment because these are “jury 9 functions, not those of a judge.” Liberty Lobby, 477 U.S. at 249-50. 10 Both the Ninth Circuit Court of Appeals and Washington courts have set a high 11 standard for granting summary judgment in employment discrimination cases. 12 Washington courts have stated that summary judgment “should rarely be granted in 13 employment discrimination cases.” See, e.g., Sangster v. Albertson’s, Inc., 991 P.2d 674, 14 677 (Wash. Ct. App. 2000).11 The Ninth Circuit has cautioned that “very little evidence” 15 is needed “to survive summary judgment in a discrimination case, because the ultimate 16 question is one that can only be resolved through a searching inquiry—one that is most 17 appropriately conducted by the fact-finder, upon a full record.” Schnidrig v. Columbia 18 Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (internal quotation marks omitted). 19 20 11 However, in order to defeat summary judgment, the employee “must establish specific and material facts to support each element of her prima facie case.” Marquis v. City of Spokane, 922 P.2d 43, 48 (Wash. 1996) (stating that an employee “must do more than express an opinion 22 or make conclusory statements”). 21 ORDER- 10 1 B. Effect of Ms. Graber’s Chapter 13 Bankruptcy 2 DataSphere places great emphasis on the effect of Ms. Graber’s Chapter 13 3 bankruptcy filing. Ms. Graber filed for Chapter 13 bankruptcy on August 2, 2013, and 4 her petition is still pending before the bankruptcy court. (In re Shari Arlene Graber, 5 W.D. Wash. Bankr. Case No. 13-17084TWD.) DataSphere argues that it is entitled to 6 summary judgment on Ms. Graber’s claims due to her pending bankruptcy for two 7 reasons: (1) she failed to properly disclose her employment claims to the bankruptcy 8 trustee; and (2) her claims are property of her bankruptcy estate, and thus, she is not a 9 real party in interest and “lacks standing to pursue her instant claims individually” (i.e., in 10 her own name). (Graber Mot. at 9-10.) 11 DataSphere’s argument is not supported by the facts of this case or the applicable 12 law. Although debtors, like Ms. Graber, have a duty to file a schedule of assets and 13 liabilities as part of a Chapter 13 bankruptcy and a court may impose judicial estoppel on 14 undisclosed claims, Ms. Graber has disclosed her employment discrimination claims. See 15 11 U.S.C. § 521 (establishing the duty to disclose); Hamilton v. State Farm Fire & Cas. 16 Co., 270 F.3d 778, 784 (9th Cir. 2001) (“Judicial estoppel will be imposed when the 17 debtor has knowledge of enough facts to know that a potential cause of action exists 18 during the pendency of the bankruptcy, but fails to amend his schedules or disclosure 19 statements to identify the cause of action as a contingent asset.”); accord Cannata v. 20 Wyndham Worldwide Corp., 798 F. Supp. 2d 1165, 1172 (D. Nev. 2011). Ms. Graber 21 disclosed her employment discrimination claims in Schedule B of her bankruptcy filings; 22 she identifies these claims as “EEOC claims.” (Beerman Decl. Ex. C (Dkt. # 42-4) ORDER- 11 1 at 21.) Courts have held that while “[n]umerous cases hold that the debtor has a duty to 2 prepare schedules carefully, completely, and accurately,” there are “no bright-line rules 3 for how much itemization and specificity is required [on the forms].” In re Mohring, 142 4 B.R. 389, 394-95 (E.D. Cal. 1992); see also Cusano v. Klien, 264 F.3d 936, 946 (9th Cir. 5 2001) (requiring Chapter 11 debtor to “be as particular as is reasonable under the 6 circumstances” when itemizing assets in bankruptcy schedules). Additionally, when a 7 party acts in good faith and its creditors have been adequately informed, no threat is 8 posed to the “integrity of the bankruptcy system [which] depends on full and honest 9 disclosure of debtors of all their assets.” Hamilton, 270 F.3d at 785. Thus, although Ms. 10 Graber’s claims are no longer “EEOC claims” and she does not state all of her 11 employment discrimination claims with specificity, the court concludes that her 12 disclosure is sufficient to avoid judicial estoppel because it gives her creditors and the 13 bankruptcy trustee notice of her claims. 14 The court is also unpersuaded by DataSphere’s second argument—that Ms. Graber 15 has no standing to sue in her own name because she is not a party in interest. (See Graber 16 Mot. at 10 (“And, unlike a Chapter 7 debtor, while a Chapter 13 debtor retains authority 17 to sue, that authority is confined to authority to sue or be sued only on behalf of the 18 bankruptcy estate.”) (emphasis in original).) Without ruling on the issue, the Ninth 19 Circuit has cited sister circuits for the rule that debtors in the Chapter 11 and Chapter 13 20 contexts can bring lawsuits in their own names. See In re DiSalvo, 219 F.3d 1035, 1039 21 (9th Cir. 2000) (“In [Chapter 7] liquidation proceedings, only the trustee has standing to 22 prosecute or defend a claim belonging to the estate. The same cannot be said for trustees ORDER- 12 1 under the reorganization chapters. In those regimes, the debtor has express authority to 2 sue and be sued.”) (emphasis in original) (citing Cable v. Ivy Tech State Coll., 200 F.3d 3 467, 472 (7th Cir. 1999).) Additionally, in Donato v. Metropolitan Life Insurance 4 Company, the District Court for the Northern District of California held that a Chapter 13 5 debtor had standing to pursue a pre-petition employment claim against her former 6 employer. 230 B.R. 418, 425 (N.D. Cal. 1999). In its holding, the court relied on 7 decisions from the Second and Third Circuits, both of which held that a Chapter 13 8 debtor has standing to pursue pre-petition claims because the debtor retains possession of 9 and may use all property in his or her estate during Chapter 13 liquidation. Id. at 425 10 (citing Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515 (2nd Cir. 1998); 11 Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1209 n.2 (3rd Cir. 1991)); 12 see also 11 U.S.C § 1306(b). The sound reasoning of these courts is persuasive. 13 Although Ms. Graber has filed for Chapter 13 bankruptcy, she retains possession of all 14 property in her estate including her employment claims against DataSphere, and thus, she 15 has standing to bring these claims. Accordingly, the court DENIES DataSphere’s motion 16 for summary judgment with respect to this issue. 17 C. Hostile Work Environment under Title VII and WLAD 18 Plaintiffs claim they were subjected to a hostile work environment while they were 19 employed at DataSphere. Claims for gender discrimination based on a hostile work 20 environment are recognized under both Title VII and WLAD. See, e.g., Nichols v. Azteca 21 Rest. Enter., Inc., 256 F.3d 864, 875 (9th Cir. 2001). DataSphere asserts that it is entitled 22 to summary judgment on Plaintiffs’ hostile work environment claims because, even if ORDER- 13 1 Plaintiffs’ allegations are true, they do not “rise to the level required to prove an abusive 2 working environment when compared to the types of behavior found to be sufficiently 3 severe under the law.” (Graber Mot. at 12; Pinto Mot. at 12.) The court concludes, 4 however, that there is a material factual issue as to whether Plaintiffs’ evidence shows 5 that DataSphere’s work environment was sufficiently severe and abusive to support their 6 hostile work environment claims. 7 Hostile work environment claims are based on the existence of an abusive work 8 environment. A hostile work environment exists when the harassment is “sufficiently 9 severe or pervasive to alter the conditions of the victim’s employment and create an 10 abusive work environment.” Nichols, 256 F.3d at 872. This standard is both objective 11 and subjective. Dawson, 630 F.3d at 939. Plaintiffs must show that a “reasonable 12 person” would find the work environment “hostile or abusive” and that each Plaintiff in 13 fact found it so. Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 14 (9th Cir. 2013) (citing Faragher, 524 U.S. at 787). “To determine if an environment is 15 sufficiently hostile or abusive . . . [courts] look at ‘all the circumstances,’ including the 16 ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening 17 or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with 18 an employee’s work performance.’” Nichols, 256 F.3d at 872 (citing Harris v. Forklift 19 Sys., Inc., 510 U.S. 17, 23 (1993)). “The required level of severity or seriousness varies 20 inversely with the pervasiveness or frequency of the conduct.” Id. (citing Ellison v. 21 Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Courts must keep in mind, however, that 22 “Title VII is not a general civility code” and that “evidence showing sporadic use of ORDER- 14 1 abusive language, gender-related jokes, and occasional teasing” do not establish 2 violations. E.E.O.C. v. Prospect Airport Serv. Inc., 621 F.3d 991, 998 (9th Cir. 2010). 3 Hostile work environment claims are similar under Washington and Federal law. 4 Federal cases interpreting Title VII are persuasive authority for the construction of 5 WLAD because the state civil rights statute substantially parallels Title VII. Estevez v. 6 Faculty Club of Univ. of Wash., 120 P.3d 579, 588 (Wash. Ct. App. 2005). Accordingly, 7 analysis of federal law applies with equal force to the WLAD claim. Hardage v. CBS 8 Broadcasting Inc., 427 F.3d 1177, 1183 (9th Cir. 2005); accord Laying v. Twin Harbors 9 Grp. Home Ass’n, No. 05-5260, 2006 WL 197127, at *2 (W.D. Wash. Jan. 24, 2006). 10 DataSphere argues that neither Ms. Graber’s nor Ms. Pinto’s testimony involves 11 conduct that is sufficiently severe or pervasive to meet the hostile work environment 12 standard. (See Graber Mot. at 12; Pinto Mot. at 12.) DataSphere characterizes Ms. 13 Graber’s testimony as only involving “several negative encounters with Jones.” (Graber 14 Mot. at 13.) Likewise, DataSphere claims that Ms. Pinto’s testimony does not show 15 sufficiently severe conduct even though it recognizes her allegations that she experienced 16 “‘constant’ unwelcome conduct during her brief five weeks of work at DataSphere 17 through e-mails she received; profanity such as being called or referred to as a ‘bitch’ or 18 ‘cunt’; and being threatened by Antonio Jones.” (Pinto Mot. at 12.) Finally, DataSphere 19 also argues that Plaintiffs’ allegations regarding offensive e-mails “fail to qualify as 20 severe or pervasive conduct.” (Graber Mot. at 13; Pinto Mot. at 12-13.) 21 DataSphere analogizes to the facts of three cases to support its argument that the 22 complained-of conduct is not sufficiently severe. In Brooks v. City of San Mateo, the ORDER- 15 1 court decided that there was no hostile work environment where the alleged harasser 2 forced his hand down the plaintiff’s sweater and fondled her breasts one time. 229 F.3d 3 917, 921-24 (9th Cir. 2000). Similarly, in Kortan v. California Youth Authority, the court 4 held that there was no hostile work environment when a supervisor called female 5 employees derogatory terms in front of the plaintiff on several occasions and called her 6 “Medea.” 217 F.3d 1104, 1109 (9th Cir. 2000). Finally, in MacDonald v. Korum Ford, 7 the court affirmed that there was no sufficient factual basis for a hostile environment 8 claim when a co-worker kissed the plaintiff one time at a New Year’s party, a second co9 worker had a habit of placing his hand on the plaintiff’s back and brushing past her in the 10 hallway, and a third co-worker used inappropriate language or gestures in the plaintiff’s 11 presence twice. 912 P.2d 1052, 1058 (Wash. Ct. App. 1996). In so holding, the 12 MacDonald court relied on the plaintiff’s testimony that she did not perceive the second 13 co-worker’s actions as “sexual harassment at the time they occurred” and that she was 14 unsure whether the third co-worker meant his inappropriate statements to have sexual 15 overtones. Id. at 1058-59. Additionally, DataSphere cites out-of-circuit, unpublished 16 cases in footnotes for the proposition that “unsavory mass e-mails” that are 17 “inappropriate and unprofessional” do not create a hostile work environment. (See, e.g., 18 Graber Mot. at 13 n.87 (citing Reed v. Metro. Gov’t of Nashville & Davidson Cnty., 286 19 Fed. App’x 251, 253-54 (6th Cir. 2008)).) 20 None of these cases control the outcome of this case. Here, Plaintiffs do not 21 provide evidence of a single instance of abusive conduct, or even “several” instances of 22 abusive conduct. Instead, Plaintiffs provide evidence that they were constantly harassed. ORDER- 16 1 Plaintiffs testify that they were regularly called derogatory names like “bitch” and “cunt” 2 by a supervisor and a co-worker, and that they were each threatened by the same co3 worker. (See Graber Dep at 95, 118; see generally Pinto Dep. at 48-68.) Ms. Graber 4 testified that Mr. Jones threatened her on at least two occasions. (Graber Dep. at 109.) 5 On one of these occasions, Mr. Jones threatened Ms. Graber after she talked to 6 DataSphere’s human resources personnel by “pointing at [her], calling [her] a bitch, 7 calling [her] a snitch,” and saying: “I’m untouchable. I’m not going anywhere. I’m 8 getting my own team.” (Id.) Ms. Graber testifies that on another occasion Mr. Jones 9 called her a bitch and suggested that “he would love to get in the elevator and go 10 downstairs” and get into a physical altercation with her. (Graber Dep. at 96.) Similarly, 11 Ms. Pinto testified that Mr. Jones threatened her on more than one occasion by hitting the 12 wall in her cubicle, calling her a “fucking bitch” and telling her that she was either 13 “fucking worthless” or that she would be kicked off the sales team. (Pinto Dep. at 50-51, 14 87-91.) Ms. Pinto testified that Mr. Jones called her derogatory names “almost daily.” 15 (Id. at 67.) Plaintiffs also provide evidence that they were sent numerous sexist e-mails 16 by co-workers and managers. (See Carlson Decl. Ex. D.) Considering all of the 17 circumstances, reasonable minds could differ as to whether this conduct is sufficiently 18 severe to constitute a violation of Title VII and WLAD. See E.E.O.C. v. Nat’l Educ. 19 Ass’n of Alaska, 422 F.3d 840, 847 (9th Cir. 2005) (“Where the conduct in question was 20 allegedly a “daily thing,” there can be little question that a reasonable juror might infer 21 that [the harasser’s] pattern of verbal and physical intimidation . . . was sufficiently 22 severe to satisfy the statute.”) Plaintiffs’ evidence should be weighed by the jury, not by ORDER- 17 1 the court. Accordingly, the court DENIES DataSphere’s motions for summary judgment 2 with respect to this issue. 3 1. Vicarious Liability under Title VII and WLAD and the Ellerth / Faragher Affirmative Defense 4 Next, DataSphere argues that it is not vicariously liable for the conduct of its 5 supervisory employees, like Mr. Mattson, even if there was a hostile work environment.12 6 (Graber Mot. at 16; Pinto Mot. at 16.) In order to establish a hostile work environment 7 claim based on sex discrimination, Plaintiffs must show not only that the workplace was 8 permeated with discriminatory conduct sufficiently severe or pervasive as to alter the 9 condition of their employment but also that DataSphere is liable for the hostile 10 environment. See Faragher v. Boca Raton, 524 U.S. 775, 776, 807 (1998). Generally, 11 employers are vicariously liable for the actions of supervisors. See id. at 807 (“An 12 employer is subject to vicarious liability to a victimized employee on an actionable 13 hostile environment created by a supervisor with immediate . . . authority over the 14 15 employee.”). A supervisor is someone the employer has empowered to take “tangible employment actions against the victim, i.e., to effect a ‘significant change in employment 16 status, such as hiring, firing, failing to promote, reassignment with significantly different 17 responsibilities.’” Vance v. Ball State, --- U.S. ----, 133 S. Ct. 2434, 2443 (2013) 18 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). 19 12 In its motion, DataSphere also seems to imply that it is not vicariously liable for the conduct of any employee, including the conduct Mr. Jones, who was a non-supervisory 21 employee. (See Graber Mot. at 14-16; Pinto Mot. at 14-16.) However, DataSphere’s potential liability for Mr. Jones’ conduct is not based on vicarious liability, but its own negligence in preventing or correcting Mr. Jones’ conduct. Thus, DataSphere may also be separately liable for 22 its own negligence with regard to Mr. Jones, as discussed in Section C.2. infra. 20 ORDER- 18 1 An employer, however, may raise an affirmative defense to avoid vicarious 2 liability. Dawson, 630 F.3d at 940. The affirmative defense (known as the “Faragher / 3 Ellerth” defense) has two prongs: (1) “that the employer exercised reasonable care to 4 prevent and correct promptly any sexually harassing behavior” and (2) “that the plaintiff 5 unreasonably failed to take advantage of any preventative or corrective opportunities 6 provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765. 7 “Whether the employer has a stated anti-harassment policy is relevant to the first element 8 of the defense.” Nichols, 256 F.3d at 877 (citing Ellerth, 524 U.S. at 765). Furthermore, 9 “an employee’s failure to use a complaint procedure provided by the employer will 10 normally suffice to satisfy the employer’s burden under the second element of the 11 defense.” Id. The Faragher / Ellerth defense is applicable only to vicarious liability 12 claims stemming from a supervisor’s harassment. See McGinest v. GTC Serv. Corp., 360 13 F.3d 1103, 1119 (9th Cir. 2004). The defense is not applicable to claims based on a co14 worker’s harassment. Id. 15 DataSphere argues that it satisfies the elements of the Faragher / Ellerth 16 affirmative defense, and therefore, that it is not vicariously liable for any hostile work 17 environment. DataSphere argues that its satisfies the Faragher / Ellerth affirmative 18 defense because (1) “DataSphere exercised reasonable care to prevent workplace 19 harassment through its anti-harassment policy, distributed to all employees” (Graber Mot. 20 at 15; Pinto Mot. at 15), (2) “DataSphere took prompt remedial action and effectively 21 ended the alleged offending conduct” (Pinto Mot. at 15), and (3) Ms. Graber “never 22 complained about any conduct to anyone at DataSphere” (Graber Mot. at 15). ORDER- 19 1 DataSphere has provided undisputed evidence that it is entitled to summary 2 judgment on its affirmative defense to vicarious liability for the acts of Mr. Mattson. 3 DataSphere satisfies the first prong of the defense, in part, because it has a workplace 4 anti-harassment policy that it has distributed to all employees. (O’Neil Decl. Ex. A at 2.) 5 This policy was given to both Plaintiffs. (O’Neil Decl. Ex. B at 4-5.) DataSphere’s 6 policy defines sexual harassment, sets forth a reporting procedure, states that employees 7 who violate the policy will be disciplined, and assures employees that no reprisals will be 8 made against them for complaining of sexual harassment. (Id.) The Ninth Circuit has 9 found that policies with these attributes support the first prong of the affirmative defense. 10 See, e.g., Nichols, 256 F.3d at 877; Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1180 (9th 11 Cir. 2001); Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir. 1999). In addition, once 12 Mr. Mattson’s abusive conduct in using the word “bitch” and sending inappropriate e13 mails came to DataSphere’s attention,13 DataSphere promptly investigated the allegations 14 and took remedial action by giving Mr. Mattson verbal and written warnings. (O’Neil 15 Decl. ¶ 20; O’Neil Decl. Ex. H at 9.) Where, as here, an employer has a workplace anti16 harassment policy, promptly investigates alleged harassment, and takes remedial action, 17 the first prong is satisfied. Montero, 192 F.3d at 862-63; accord Kohler, 244 F.3d at 18 1181. 19 20 13 Mr. Mattson’s objectionable conduct came to the attention of DataSphere’s human resources team only as a consequence of its investigation of Mr. Jones’ conduct. (See O’Neil Decl. ¶ 20.) There is no evidence in the record that either Plaintiff ever made a formal complaint 22 about Mr. Mattson’s conduct. (See generally Dkt.) 21 ORDER- 20 1 DataSphere has also satisfied the second prong of the Faragher / Ellerth defense. 2 This is because neither Plaintiff utilized DataSphere’s complaint procedure to protest Mr. 3 Mattson’s conduct. (See Graber Dep. at 106-09, 126; Pinto Dep. at 91-93.) Plaintiffs 4 argue that they did not need to complain about Mr. Mattson’s conduct because he was a 5 manager and DataSphere’s employment manual requires employees to complain to 6 managers. However, Plaintiffs’ argument does not create a factual dispute as to this 7 issue—the law requires employees to take affirmative steps and utilize a company’s 8 complaint procedures when supervisor misconduct is alleged. See, e.g., Kohler, 244 F.3d 9 at 1182. Thus, DataSphere is entitled to summary judgment in its favor on the issue of its 10 vicarious liability for Mr. Mattson’s conduct because it has provided undisputed evidence 11 sufficient to establish its affirmative defense as a matter of law. See Holly D. v. Cal. 12 Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003) (affirming summary judgment on 13 employer’s Faragher / Ellerth affirmative defense). Accordingly, the court GRANTS 14 DataSphere’s motions for summary judgment on the issue of its vicarious liability for Mr. 15 Mattson’s conduct. 16 2. Negligence under Title VII and WLAD 17 Even if it is not vicariously liable, DataSphere may still be liable in connection 18 with Mr. Jones’ conduct. Although DataSphere seems to argue in its motions that its 19 Faragher / Ellerth affirmative defense forecloses all liability (see Graber Mot. at 14-16; 20 Pinto Mot. at 14-16), it can still be liable for the harassment of a co-worker if it was 21 negligent in failing to end the harassment. The question of whether DataSphere was 22 ORDER- 21 1 negligent in failing to end the harassment of Mr. Jones, Plaintiffs’ co-worker, is 2 appropriate for a jury to decide. 3 In this context, DataSphere would be held liable if it acted negligently. The rule is 4 that, “where harassment by a co-worker is alleged, the employer can be held liable only 5 where its own negligence is the cause of the harassment.” Swenson v. Potter, 271 F.3d 6 1184, 1191 (9th Cir. 2001). Generally, the employer may be liable if it knows or should 7 know of the harassment but fails to take steps “‘reasonably calculated’ to end the 8 harassment.” Dawson, 630 F.3d at 938. “The reasonableness of the remedy depends on 9 [the employer’s] ability to: (1) ‘stop harassment by the person who engaged in 10 harassment;’ and (2) ‘persuade potential harassers to refrain from unlawful conduct.’” 11 Nichols, 256 F.3d at 875 (quoting Ellison, 924 F.2d at 882). Although “the most 12 significant immediate measure an employer can take . . . is to launch a prompt 13 investigation . . . the ‘fact of investigation alone’ is not enough.” Swenson, 271 F.3d at 14 1193 (citing Fuller v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995)). 15 Factual disputes prevent summary judgment on this issue. Specifically, there is a 16 material factual issue as to whether DataSphere should have known about Mr. Jones’ 17 offending conduct and whether DataSphere was negligent for not having taken remedial 18 action sooner. DataSphere contends that “it is undisputed that, once Pinto reported 19 Jones’ alleged harassment on October 11, 2011, [it] took prompt remedial action and 20 effectively ended the alleged offending conduct.” (Graber Mot. at 15; Pinto Mot. at 15.) 21 However, both Plaintiffs testify that Mr. Mattson, their supervisor and a manager in the 22 company, witnessed Mr. Jones conduct toward them and took no action. (See Resp. at 3ORDER- 22 1 4; Pinto Mot. at 12.) Thus, it is disputed whether Mr. Jones’ conduct in front of Mr. 2 Mattson constituted notice to DataSphere of the harassing behavior, and whether 3 DataSphere is negligent for taking no action when Mr. Mattson witnessed such conduct. 4 (See Resp. at 12.) 5 DataSphere’s argument to the contrary is unavailing. DataSphere states that 6 “Graber’s admitted recommendation of Jones for the Team Captain role coupled with her 7 admitted failure to ever complain while employed with DataSphere gave Mattson 8 objective reasons to believe that Graber did not regard herself as the victim of a sexually 9 hostile working environment.” (Graber Reply at 8; Pinto Reply at 8.) Ms. Graber’s 10 recommendation and failure to complain that she was being sexually harassed does not 11 mean that DataSphere was not on notice of Mr. Jones’ improper behavior toward either 12 Ms. Graber or Ms. Pinto, especially when Mr. Mattson witnessed Mr. Jones’ 13 inappropriate conduct. Additionally, Ms. Pinto testifies that Mr. Jones’ inappropriate 14 conduct toward her continued even after Mr. Hartnett talked to him about his September 15 30, 2011, verbal outburst. In relation to the incident, she states “[Mr. Jones] came out 16 [after meeting with Mr. Hartnett] and said ‘I’m untouchable’. . . [a]nd paraded around 17 and made a big deal of how he could do whatever he wanted.” (Pinto Dep. at 51-52.) 18 Afterward, Mr. Jones continued to call Ms. Pinto a “fucking bitch.” (See Pinto Dep. at 19 56.) The question of DataSphere’s negligence in addressing and ending Mr. Jones’ 20 hostile behavior are appropriate issues for a jury to decide. Accordingly, the court 21 DENIES DataSphere’s motions to the extent that it seeks summary judgment on the issue 22 of its own negligence with respect to Mr. Jones’ conduct. ORDER- 23 1 D. Constructive Discharge under Title VII and WLAD 2 DataSphere may also be liable for constructive discharge. The federal and 3 Washington standards for constructive discharge are similar. In Washington, “while 4 resignations are presumed to be voluntary, a plaintiff may overcome that presumption . . . 5 by demonstrating a deliberate act by the employer that made her working conditions so 6 intolerable that a reasonable person would have felt compelled to resign.” Washington v. 7 Boeing, 19 P.3d 1041, 1049 (Wash. Ct. App. 2000). Likewise, the federal standard 8 requires a plaintiff to “show that the abusive working environment became so intolerable 9 that [its] resignation qualified as a fitting response.” Penn. State Police v. Suders, 542 10 U.S. 129, 133 (2004). This is an objective standard. Id. at 146-47. Furthermore, “[a] 11 plaintiff alleging constructive discharge must show some aggravating factors, such as a 12 continuous pattern of discriminatory treatment.” Schindrig, 80 F.3d at 1412 (citing 13 Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990)). The Ninth Circuit has 14 “upheld factual findings of constructive discharge when the plaintiff was subjected to 15 incidents of differential treatment over a period of months or years. Watson v. 16 Nationwide Ins., Co., 823 F.2d 360, 361 (9th Cir. 1987). However, the Faragher / 17 Ellerth affirmative defense is also available to employers where the constructive 18 discharge is based on supervisor harassment. Suders, 542 U.S. at 134. Constructive 19 discharge claims usually present a question of fact appropriate for the jury to decide. Id. 20 at 362. 21 Plaintiffs provide sufficient evidence to create a material factual issue of whether 22 constructive discharge occurred. In arguing for summary judgment on this issue, ORDER- 24 1 DataSphere emphasizes that Plaintiffs resigned voluntarily, and that constructive 2 discharge claims are not available where a plaintiff has failed to prove that a hostile work 3 environment existed. (See Graber Mot. at 16-19; Pinto Mot. at 16-19); see also Brooks, 4 229 F.3d at 930-31 (“Where a plaintiff fails to demonstrate the severe or pervasive 5 harassment necessary to support a hostile work environment claim, it will be impossible 6 for her to meet the higher standard for constructive discharge . . . .”). These arguments 7 are unpersuasive because Plaintiffs provide sufficient evidence to overcome the 8 presumption of voluntary resignation, and because they provide evidence showing, at 9 minimum, a material factual dispute about the existence of a hostile work environment, 10 as already discussed. Plaintiffs both claim they were subjected to harassing, threatening, 11 and discriminatory conduct by their co-worker, Mr. Jones, over a period of months and 12 that DataSphere did nothing to remedy this harassment.14 Additionally, both Ms. Graber 13 and Ms. Pinto testify that they had serious incidents with Mr. Jones that closely preceded 14 their resignation; these incidents suggest a causal link between Mr. Jones’ conduct and 15 their decision to leave DataSphere. (Pinto Dep. at 81-91; Graber Dep. at 100-101.) The 16 length of time between incidents of harassment is relevant to whether there is a causal 17 link. See, e.g., Wood v. GCC Bend, LLC, 270 Fed. App’x 484, 485 (9th Cir. 2008) (five18 14 The case law implies that plaintiffs can allege a claim for constructive discharge solely on the basis of a co-worker’s conduct if it rises to the requisite level of intolerableness. See 20 Suders, 542 U.S. at 148 (stating “harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts”). 21 However, Plaintiffs cannot rely on evidence of Mr. Mattson’s or any other manager’s direct harassment in proving their constructive discharge claims because any liability for this conduct is foreclosed by the Faragher / Ellerth test, as already discussed. 19 22 ORDER- 25 1 month lapse between “workplace embarrassment” and resignation could not support a 2 finding of causation between the two events). Mr. Jones’ ongoing harassment creates a 3 material factual issue of whether Plaintiffs were constructively discharged. A reasonable 4 jury could conclude that Mr. Jones’ behavior and DataSphere’s failure to control this 5 behavior created an environment in which a reasonable person would feel compelled to 6 resign. Accordingly, the court DENIES DataSphere’s motions for summary judgment 7 with respect to this claim. 8 E. Differential Treatment and Retaliation under Title VII and WLAD 9 DataSphere is entitled to summary judgment on Plaintiffs’ differential treatment 10 and retaliation sex discrimination claims. Summary judgment is appropriate because 11 Plaintiffs have failed to provide evidence establishing a prima facie case for either of 12 these claims. To prevail on their retaliation claims, Plaintiffs must show: (1) that they 13 engaged in a protected activity; (2) that they suffered an adverse employment action; and 14 (3) that there was a causal connection between the protected activity and the adverse 15 employment action. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 16 2004). The showings required for a retaliation claim under both Title VII and the WLAD 17 are identical, except for the causation element. Ellorin v. Applied Fishing, Inc., No. C1218 1923JLR, 2014 WL 498969, at *9 (W.D. Wash. Feb. 7, 2014) (stating that Title VII 19 requires “but-for” causation, while WLAD only requires that discrimination be a 20 “substantial factor” in causing the retaliatory conduct). 21 Additionally, differential treatment claims under Title VII or WLAD are 22 considered under the burden shifting analysis established by the Supreme Court. See ORDER- 26 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell 2 Douglas framework, the plaintiff must first establish a prima facie case of discrimination. 3 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Plaintiffs can 4 establish a prima facie case by showing: (1) that they belong to a protected class; (2) that 5 they were qualified for the position; (3) that they were subjected to an adverse 6 employment action; and (4) that similarly situated employees outside the protected class 7 were treated more favorably. Id.; Domingo v. Boeing Employees’ Credit Union, 98 P.3d 8 1222, 1225 (Wash. Ct. App. 2004). Next, the burden of production shifts to the 9 defendant to articulate a legitimate nondiscriminatory reason for its decision. Wallis v. 10 J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Finally, the burden shifts back to the 11 plaintiff to demonstrate that the reason offered by the defendant is pretext for an 12 underlying discriminatory motive. Chuang, 225 F.3d at 1123. 13 Plaintiffs do not show facts establishing their differential treatment and retaliation 14 claims. Specifically, Plaintiffs provide no evidence showing that either experienced an 15 “adverse employment action,” a necessary element of the prima facie case for both 16 claims. (See Graber Mot. at 19-22; Pinto Mot. at 21-23.) Adverse employment actions 17 are significant changes in employment status and include, “hiring, firing, failing to 18 promote, reassignment with significantly different responsibilities, or a decision causing a 19 significant change in benefits.” Ellerth, 524 U.S. at 761. “A tangible employment action 20 in most cases inflicts direct economic harm.” Id. at 762. It is an action that “materially 21 affects the compensation, terms, conditions, or privileges of employment.” Campbell v. 22 Knife River Corp.—Nw., 783 F. Supp. 2d 1137, 1149 (D. Or. Mar. 8, 2011) (citing Davis ORDER- 27 1 v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008); cf. Kortan, 217 F.3d at 1113 (no 2 adverse employment action where the plaintiff “was not demoted, was not stripped of 3 work responsibilities, was not handed different or more burdensome work 4 responsibilities, was not fired or suspended, was not denied any raises, and was not 5 reduced in salary or any other benefit”). Additionally, constructive discharge is not an 6 adverse employment action. See Suders, 542 U.S. at 149. 7 Plaintiffs do not provide any evidence that they had an adverse employment action 8 taken against them. They provide no evidence that they were fired, not promoted, 9 reassigned with different responsibilities, or had their benefits decreased. (See Graber 10 Dep.; Pinto Dep.) The closest thing to an adverse employment action Ms. Pinto testifies 11 to is that she was assigned to a different sales team. (Pinto Dep. at 97-100.) However, 12 “not every transfer adversely affects [a] victim’s employment.” Swenson, 271 F.3d at 13 1194. “If [the employer] decides to separate the two employees in the workplace, the 14 employer may properly consider the relative ease of moving them and their respective 15 importance to its business operations . . . [it] has wide discretion in choosing how to 16 minimize contact between the two employees, so long as the accuser is not moved to an 17 objectively less desirable position.” Id. Here, Ms. Pinto was moved to a different team 18 on a different floor of DataSphere’s offices, she was given the same role and benefits on 19 her new team, and DataSphere provided evidence that this move was intended to prevent 20 Mr. Jones from bothering her. (See O’Neil Decl. ¶ 11 (“To prevent further negative 21 interactions between Mr. Jones and Ms. [Pinto] we moved [her] to a different team where 22 Mr. Jones could not bother her.”).) Even if DataSphere’s conduct toward Ms. Pinto did ORDER- 28 1 rise to the level of an adverse employment action—which it does not—DataSphere 2 presents a legitimate, non-discriminatory reason for the move. (See id.) Ms. Pinto 3 provides no evidence that DataSphere’s proffered reason is pretext for a discriminatory 4 motive. (See Dkt.) Furthermore, Ms. Graber does not allege that DataSphere took any 5 adverse employment action against her; she only testifies that she was “disciplined” by 6 Mr. Jones yelling and threatening her. (Graber Dep. at 95-96.) Neither Plaintiff was 7 fired. (Pinto Dep. 140-42; Graber Dep. 151-52.) Plaintiffs have failed to show any 8 adverse employment actions, and therefore, they do not establish prima facie cases of 9 differential treatment and retaliation. Accordingly, the court GRANTS DataSphere’s 10 motions for summary judgment on these claims. 11 F. State Law Tort Claims Duplicative of Title VII and WLAD Claims 12 Last, DataSphere argues that Plaintiffs’ state law tort claims are duplicative of 13 their WLAD claims and must be dismissed under Washington law. (See Graber Mot. at 14 22-23; Pinto Mot. at 23-24.) Washington courts have held that common law tort claims, 15 such as negligent and intentional infliction of emotional distress, and negligent 16 supervision or retention, are duplicative and must be dismissed when they are based on 17 the same facts as a discrimination claim. See Francom v. Costco Wholesale Corp., 991 18 P.2d 1182, 1192-93 (Wash. Ct. App. 2000) (ruling that an employee may recover 19 damages for emotional distress in an employment context but only if the factual basis for 20 the claim is distinct from the factual basis for the discrimination claim); see also Ellorin, 21 2014 WL 498969, at *18 (W.D. Wash.) (granting summary judgment and dismissing 22 plaintiff’s negligent and intentional infliction of emotional distress claims, negligent ORDER- 29 1 hiring and supervision claims, and sexual battery claim as duplicative of state-law 2 employment discrimination claim). Separate WLAD claims and state tort claims can 3 only arise “when the claim is based on a separate factual basis from the sexual 4 discrimination claim.” Haury v. Snow, 31 P.3d 1186, 1193 (Wash. Ct. App. 2001). At 5 oral argument, Plaintiffs conceded that many of their tort claims and their WLAD claims 6 are based on overlapping facts, but Plaintiffs also argued that there were some e-mails 7 that, if not sexist in nature, were disturbing and supported their emotional distress claims. 8 The court is satisfied that Plaintiffs’ emotional distress claims are based on these non9 sexist e-mails, and thus, these claims are supported by different facts than Plaintiffs’ 10 WLAD claims. As to Plaintiffs’ other claims, however, there is no dispute that Plaintiffs 11 rely on the same facts to support their WLAD discrimination claims and state law tort 12 claims for negligent hiring, supervision, and training. Thus, these claims are duplicative 13 of Plaintiffs’ discrimination claims. (Compl. ¶¶ 31-38.) Accordingly, the court 14 GRANTS DataSphere’s motions for summary judgment as to Plaintiffs’ negligent hiring, 15 supervision, and training claims. 16 17 IV. CONCLUSION For the reasons discussed, the court GRANTS in part and DENIES in part 18 DataSphere’s motions for summary judgment against Ms. Graber (Dkt. # 37) and Ms. 19 Pinto (Dkt. # 39). The court GRANTS DataSphere’s motions for summary judgment 20 with respect to: (1) Plaintiffs’ hostile work environment claims based on DataSphere’s 21 vicarious liability for Mr. Mattson’s conduct; (2) Plaintiffs’ differential treatment and 22 retaliation claims; and (3) Plaintiffs’ state tort claims for negligent hiring, supervision, ORDER- 30 1 and training. However, the court DENIES DataSphere’s motions for summary judgment 2 on Plaintiffs’ other claims. Specifically the court DENIES DataSphere’s motions for 3 summary judgment with respect to: (1) Plaintiffs’ hostile work environment claims based 4 on DataSphere’s negligence concerning Mr. Jones’ conduct; (3) Plaintiffs’ constructive 5 discharge claims; and (4) Plaintiffs’ state tort claims for emotional distress. 6 Dated this 27th day of February, 2014. 7 A 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 31

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