Opinion
No. 07-247-HU.
March 25, 2008
Sara L. Allen, Michael D. Hallas, Allen2 Law, LLC, Portland, Oregon, Attorneys for plaintiff.
Scott Oborne, Mark Crabtree, Jackson Lewis LLP, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
Darcie Hansen brings this action against her former employer, Advo, Inc., asserting claims for sex discrimination, sexual harassment, and retaliation in violation of Title VII, 42 U.S.C. § 2000e and Or. Rev. Stat. § 659A.030, and a common law claim for intentional infliction of emotional distress. She seeks back pay and front pay; emotional distress damages; punitive damages; and attorney's fees and costs.
Factual Background
Advo is a direct mail company that employs approximately 3,700 people at about 57 locations. Advo is headquartered in Windsor, Connecticut. Advo hired Hansen on September 7, 2004 to work in its Portland, Oregon sales office; Hansen worked for Advo until the first week of March 2006, a period of about 17 months.
During Hansen's employment, the Portland office was managed by a District Sales Manager, Tim Townsend. The District Sales Manager is responsible for managing the sales officers and directing other office personnel. Townsend was Hansen's supervisor. Human resources (HR) personnel are not present at every Advo facility; during Hansen's employment, the HR professionals assigned to the Portland office worked out of Advo's San Francisco and Los Angeles offices.
From approximately August 2003 to December 2, 2005, the HR professional assigned to the Portland office was Dewayne Quock, who worked in the San Francisco office. After December 2, 2005, Emanuel Maxwell replaced Quock as HR professional for the Portland office. Besides Townsend and Hansen, the only Advo employees in the Portland office during Hansen's employment were Regional Account Executives (RAEs), Kenneth Niebur, Richard Cronkrite and Roger Fune. Another RAE, James Barner, worked for Advo during part of the time Hansen was employed there, but was laid off in May 2005. The RAEs did not supervise Hansen.
Hansen asserts that she was told at the time of her job interview with Townsend that her job title was to be "Sales and Marketing Assistant." Hansen Declaration ¶ 1. As evidentiary support for this statement, Hansen attaches business cards made for her by Advo, which give her title as "Marketing and Sales Assistant."
Emanuel Maxwell, Advo's HR person for the Portland office, states in an affidavit that Hansen's job title was "Sales Administrative Assistant," Maxwell Declaration, ¶ 7, but the position description attached to Maxwell's affidavit and cited as evidence for that statement merely identifies the job as "Assistant." Maxwell Declaration Exhibit C. The duties described in the position are consistent with those of an administrative or office assistant, including calendar coordination and management for the office manager; organizing and coordinating meetings; directing incoming and outgoing correspondence; composing routine responses to correspondence; taking meeting minutes and notes; researching and compiling routine reports, creating presentations and reports; handling travel arrangements for the office manager; acting as liaison for manager and staff; monitoring invoices and budget activity; preparing budget variance reports and expense reports; and handling filing. Id.
Hansen states in her declaration that she has never seen a copy of the job description attached to Maxwell's declaration, and that she was not described as a "Sales Administrative Assistant." Hansen Declaration ¶ 2. Hansen does not deny that she was the only "assistant" in the Portland office.
Townsend states in his declaration that Hansen had expressed an interest in marketing, and that over the course of her employment she was given tasks with a marketing or sales component, including responsibility for maintaining client relations with three of Advo's larger regional accounts, working with them to develop marketing plans. Townsend Declaration ¶ 2. Townsend states that Hansen was also assigned a variety of marketing projects such as developing individual clients' marketing based on an analysis of customer base, demographic goals, and sales objectives. Id.
Hansen acknowledged at her deposition that she compiled "targeting reports," Hallas Declaration, Exhibit A, Oborne Declaration, Exhibit A (Hansen dep.) 71:17-73:19, helped with market analysis projects, id. at 83:19-84:21; aided in "strategic print buys," id. at 84:22-85:19, led team-building classes, sales building exercises, and training on online market research procedures, id. at 85:25-87:17; maintained client relations on three large accounts, id. at 88:20-90:3, and produced "forecast summaries" for the sales team, id. at 90:4-21. See also Reply Declaration of Scott Oborne, Deposition Exhibit 8, (Hansen's resume, listing experience obtained at Advo with these tasks); Hansen dep. 69:1-25 (testimony about resume).
Approximately two weeks after Hansen began working for Advo, Advo eliminated its voicemail system after Townsend received complaints about it from Advo management, and Hansen was given the job of answering the phones. Hansen has testified that she believes she was given the task because she was female. Hansen dep. 99:16-100:6. This belief is based on Hansen's testimony that every time she called any of Advo's offices, a woman answered the phone. Hansen Declaration ¶ 3. Hansen testified that she answered the phone approximately 40 times a day. Hansen dep. 92:11-14.
Hansen testified that she was also required to clean the office, dust, do "everybody's dishes," pick up coffee, run errands, pick people up at the airport, get groceries for the office, and buy supplies for meetings and birthday parties. Id. at 93:8-21. According to Hansen, Townsend would "pick up the dishes and put them in my office on my desk," and would scoop up anything lying on the conference room table and toss it on her floor or her desk. Id. at 94:15-18; 94:22-25. Hansen stated that Townsend would tell her to ensure that the conference room was clean for sales meetings. Id. at 95:18-24. She stated further that she had to "make everyone's travel arrangements," id. at 96:3-5, but then admitted that "most of the time" the sales team "did do their own" travel arrangements. Id. at 96:18-97:1.
Defendants challenge the inference that Hansen was solely responsible for office housekeeping and other mundane tasks. Townsend states in his declaration that everyone in the office "helped contribute to the upkeep of the office," and that he himself "often washed coffee cups" and "often picked people up from the airport for business meetings." Townsend Declaration ¶ 9. Townsend states that although he sometimes asked Hansen to help with travel arrangements, he also made travel arrangements for himself "multiple times," and handled his own expense reimbursements. Id. Townsend says he occasionally asked Hansen to purchase supplies for the office, but that he also bought groceries or coffee for the office. Id.
Ken Niebur states in his declaration that he frequently washed coffee cups and helped keep the office's kitchen area clean; frequently made his own travel arrangements; and frequently made shopping trips to purchase coffee and other supplies for the office. Niebur Declaration, ¶ 4. Niebur states that Hansen was "not singled out to perform office chores." Id.
Richard Cronkrite says that because the Advo office was small, all employees were "expected to assist with office tasks from time to time," and that he frequently pitched in by cleaning up the kitchen and common areas, as well as occasionally purchasing supplies and groceries. Cronkrite Declaration ¶ 6. According to Cronkrite, Hansen was not "singled out to perform these types of tasks, although she was the only assistant in the office at that time." Id.
Townsend states in his declaration that Hansen regularly called in sick, left work early, or arrived late. Townsend Declaration ¶ 4. Townsend has compiled a list, based on Advo's attendance records, showing that between September 29, 2004 and February 16, 2006, Hansen was absent 18 days; between 60 and 105 minutes late on eight occasions; and either left early or arrived late on five other occasions. Id. Townsend states that he counseled Hansen about her attendance in March 2004, May 2004, September 2004, and September 2005. Id. at ¶ 5, 6. According to Townsend, Hansen's lack of attendance was an "obstacle to her receiving more substantive marketing tasks," and "placed a strain on the sales team." Id. at ¶ 8. Hansen contends that no one except Townsend told her attendance was a problem, and that she arranged to have time off for medical reasons. Hansen dep. 155:4-158:5; Hansen Declaration ¶ 9. However, Advo counters that Hansen testified she requested leave for medical reasons in July 2005, Hansen dep. 155:20-24, and that Townsend's log omits incidents occurring in July or August 2005. See Townsend Declaration ¶ 4.
Niebur states in a declaration that he was "frustrated" by Hansen's attendance, because she was "often late to work and frequently called in sick." Niebur Declaration ¶ 3. Niebur says he noticed an attendance pattern in which Hansen was absent from work on days Townsend was out of the office, and that he expressed his frustration with Hansen's attendance to Townsend.Id.
Cronkrite states in a declaration that Hansen performed her job well when she was at work, but was frequently absent, and that he expressed his frustration with Hansen's attendance to Townsend. Cronkrite Declaration ¶ 5.
Hansen gave notice that she was leaving on February 14 or 16, 2006; her resignation letter is dated February 14, 2006, but there is evidence that she tendered the letter to Townsend at a meeting on February 16, 2006. According to Townsend, he was scheduled to meet with Hansen to review attendance issues on February 16, 2006, and Hansen "started out the meeting by submitting a letter of resignation." Townsend Declaration ¶ 10. In her resignation letter, Hansen said she had "decided to take a different path with her career." Hansen dep. Exhibit 12. At the meeting with Townsend, Hansen asked that her last day of employment be March 7, 2006. Hansen dep. 174:22-24. Townsend states that at the meeting on February 16, 2006, Hansen complained about her work responsibilities; he responded that her attendance was an issue underlying her not being assigned marketing tasks; and Hansen told Townsend about offensive statements Fune had made to her.Id. See also Hansen dep. 182:10-21. According to Townsend, this conversation "was the first time I had heard of the allegations regarding Roger Fune," and Townsend reported Hansen's concerns to Advo's HR department, as well as advising Hansen to follow up with HR on her own. Id.
Hansen asserts that in September or October 2005, she complained about Townsend and Fune to Maxwell's predecessor, Quock. According to her testimony, very early in her employment she e-mailed Quock saying she was having problems at work with Townsend, and "just an overall bad working environment" and asked if Quock would call her on her cell phone at a certain time, so that Fune would not overhear the conversation. Quock called her and they talked for about half an hour. During the call, Hansen told Quock about "Tim and the yelling and swearing that he would do," e-mails Townsend would send out when people were late, and about Fune "pretty much on a daily basis [making] inappropriate comments." Hansen dep. 57:12-60:19. According to Hansen, Quock promised an investigation, but never called anyone on Hansen's team. Id. 60:20-61:24. The evidence indicates that Quock left Advo sometime before Maxwell was hired, on December 2, 2005. There is no evidence in the record that Townsend knew of Hansen's complaints to Quock about himself and Fune. Nor is there any evidence that Quock conducted an investigation of Hansen's complaints at any time between September or October 2005 and his departure from Advo at some date before December 2, 2005.
Townsend contacted the HR representative, Emanuel Maxwell. Maxwell Declaration ¶ 10; Townsend Declaration ¶ 10. Maxwell contacted Hansen by telephone the evening of her resignation, see Hansen dep. 183:22-24; 189:18-25, to begin an investigation into her complaint. Maxwell Declaration ¶ 10.
Hansen's allegations of misconduct against Fune are:
1. Fune called Hansen into his office and showed her a website depicting a T-shirt with an outline of a woman on a gynecologist's examining table, with the doctor's head between her knees, and saying, "Best view in town." Hansen dep. 130:10-20.
2. On the second day of Fune's employment at Advo, Townsend was talking to Hansen and Fune about communication techniques used on customers by a good salesperson, and Fune said, "You have to do like Jedi mind tricks with them, like women," or something similar. Hansen dep. 128:16-23.
3. When a loose hair had fallen on Hansen's shirt, Fune reached out as though to grab it, within a few inches of her breast. Fune told Hansen he was not trying to fondle her; he was trying to remove a hair. Hansen herself removed the hair from her shirt. Hansen dep. 141:3-13.
4. Fune returned from a sales call and told Hansen he should have taken her on the call because of her appearance. Maxwell Declaration, Exhibit D; Hansen dep. 152:21-153:7.
5. During the summer of 2005, Fune made a suggestive comment about the uniforms his daughter's volleyball team wore. Hansen dep. 148:2-6; Maxwell Declaration, Exhibit D.
6. Hansen felt she was working in a "boys club environment" because Fune had taken male employees into his office to show them things on the Internet, and because Townsend scheduled a golf event on a day Hansen had asked to take off from work. Maxwell Declaration, Exhibit D; Hansen dep. 188:1-12.
7. On an Advo business trip to Seattle in 2005, Fune joked that he would go to a strip club after dinner; during dinner he positioned himself at the restaurant table so he could see a music video on TV, referring to "hot girls" and "soft core porn." Maxwell Declaration, Exhibit D; Hansen dep. 77:16-24.
8. Fune would "talk about women and their body parts," although Hansen could provide no details of these comments. Hansen dep. 61:12-18; 136:2-16; 151:3-22.
9. In July 2005, Fune commented to Hansen that his daughter's 13 and 14 year old friends had large breasts and he thought it was a tease to someone his age because he couldn't tell how old they were. Hansen dep. 138:3-9.
10. In the fall of 2005, Hansen heard "female sex sounds" coming from Fune's computer speakers. Hansen dep. 146:14-18.
11. Around December 2005, Fune told Hansen a woman in the building was trying to get his attention because she would regularly walk past his office window and stick her chest out. Hansen dep. 138:22-139:4.
12. In December 2005, on a team building trip to Park City, Utah, Fune pointed out a bumper sticker that said, "I love head." Hansen dep. 169:1-5.
According to Fune's deposition testimony, the bumper sticker said, "I love Head Skis." Fune dep. 48:2-6. Fune testified that he told the driver of the van, "I can't believe that guy has it on his car." Id. 48:7-9. Fune did not remember Hansen saying anything about that. 48:10-12.
The day after tendering her resignation letter, on February 17, 2006, Hansen sent an e-mail to the other employees of the Portland office saying she had "decided to go back to school and work towards my Masters in Business," Hansen dep. Exhibit 13, and saying,
Hansen does not deny that before submitting her resignation, she had purchased books to prepare for graduate course work, signed up for two classes at PSU, including one class that met during the day, and sought out part-time employment that would work with a school schedule. Defendant's CSF 12. Nor does Hansen deny that approximately three weeks after resigning her employment with Advo, Hansen began taking graduate classes and obtained part-time employment that accommodated her school schedule. Defendant's CSF 18. Hansen testified at her deposition that she applied to PSU before she resigned from Advo, and that school was set to begin the last week of March. Hansen dep. 173:10-24. She had signed up for two classes, which met from 3:00-5:00 p.m. and from 5:45-9:00 p.m. Id. at 173:25-174:21.
[I]t is important to me that I pass on my appreciation for just how much I learned and how valuable this experience was. . . . [G]etting to know each of you has been wonderful. It is nice knowing that there are companies out there, like Advo, that are made up of such wonderful, hard working and loyal people. I truly will miss working with all of you.Id. Hansen states in her declaration that she was "instructed to write this email," Hansen declaration ¶ 11, but also that she "chose to be gracious and professional rather than focus on the negative aspects of my departure." Id. In her deposition, Hansen testified that Townsend had told her to send an email about her leaving to everyone Hansen had regular contact with in Advo, and to "make Advo look good." Hansen dep. 199:10-20.
Maxwell and another HR representative, Jesus Alvaredo, flew to Portland on February 24, 2006, to interview the office staff. Maxwell Declaration, Exhibit D (Maxwell's investigation report). Maxwell and Alvarado met with each Portland office employee. Maxwell Declaration ¶ 13.
Maxwell states that Fune denied behaving in an inappropriate manner toward Hansen. Maxwell Declaration ¶ 14. Maxwell interviewed all the other employees of the Portland office, and concluded that he was unable to substantiate Hansen's complaints. Maxwell Declaration ¶¶ 15, 17, Exhibit D.
Hansen claims in her testimony that Townsend heard Fune's "Jedi" comment, see Hansen dep. 127:12-19, and did nothing. Hansen dep. 127:4-9. Hansen testified further that Fune would talk about movies he had seen over the weekend, including the attractiveness of the different women in the movies and descriptions of sex scenes, but she was unable to give any specific examples. Hansen dep. 151:3-22. Hansen says Townsend was "always present" when these comments were being made. Id. at 151:25-152:1. In her papers, Hansen does not cite any other evidence that Townsend knew of Fune's allegedly offensive behavior toward her and did nothing.
Fune testified at his deposition that the only internet sites he visited while at Advo were MSNBC, ESPN and a weather site, NOAA.gov. Crabtree Declaration Exhibit A (Fune dep.) 35:16-36:8. He denied ever showing Hansen or anyone else in the office anything on his computer. Id. at 36:9-14. Maxwell states in his declaration that as part of his investigation, he reviewed Fune's computer and Internet history, and was unable to confirm Hansen's allegations. He found no inappropriate Internet usage on Fune's computer. Maxwell Declaration ¶ 16. However, there is some evidence that Fune got a new laptop at some point during his employment.
Fune states in a declaration that he and Hansen had a cordial business relationship, sharing daily cigarette breaks. Fune Declaration ¶ 3. Fune states that once Hansen confided in him that she thought a friend's husband was making sexual advances toward her. Id. According to Fune, during out-of-town trips, he and Hansen went out to bars together and, on one occasion, she borrowed Fune's boxer shorts so that she could get in a hot tub with Fune and the rest of the Portland team. Id. at ¶ 4. Fune states that he never saw Hansen outside of work or asked to do so. Id.
According to Fune's declaration, Hansen once asked Fune if he had made a comment about her body, and Fune did not recall ever making such a comment and told her so. Id. at ¶ 5.
Fune states that he never had any indication from Hansen that she believed he had engaged in offensive conduct, and that the first time he learned of Hansen's claims of sexual harassment was during the HR interview. Id. at ¶¶ 7, 9. According to Fune's deposition testimony, Hansen said to him a couple of times that he had "crossed a line," but "every time she said it she was laughing and she always said it like she was giving the punch line to a joke." Fune dep. 46:24-47:1.
Fune states that the day of the HR investigation, Hansen professed ignorance about what Advo might be investigating, and that shortly before Hansen was interviewed, Fune went to get a bagel and offered to bring Hansen one, which she accepted. Fune states that on the day of the investigation, he and Hansen shared cigarette breaks. Id. ¶ 6.
Fune asserts that the comment about his daughter's volleyball uniform was a complaint about how short the shorts were. Fune Declaration ¶ 8. At his deposition, Fune testified that his daughter's volleyball team was in "these spandex shorts and I didn't like them." Hallas Declaration, Exhibit C (Fune dep.) 43:4-17. Fune disputes Hansen's suggestion that Fune said he should take her on sales calls because of her appearance; he claims that at the start of his employment with Advo, he told Townsend it would "have been nice to have Darcie on my sales call because she was a good resource for information." Fune Declaration ¶ 8. Fune denies anything sexual in the comment.
Niebur states in a declaration that at the time of the HR investigation, he was surprised about Hansen's allegations because "Darcie never appeared uncomfortable working around Roger." Niebur Declaration ¶ 5. Cronkrite states in a declaration that he never heard Fune say anything "sexually inappropriate" to Hansen and never saw him act in a "sexually inappropriate" way toward her. Cronkrite Declaration ¶ 3. Cronkrite says he never saw Fune access sexually inappropriate material on his office computer. Id. Cronkrite states that Hansen never suggested that she felt uncomfortable working around Fune. Id. at ¶ 4.
Hansen continued to work at the Advo office through February 24, 2006. Hansen dep. 192:14-193:6; Maxwell Declaration ¶ 17. Maxwell states in his declaration that Hansen told him she felt uncomfortable in the office, and that he inquired of Hansen what Advo could do to make her comfortable. Maxwell Declaration ¶ 17. Hansen indicated to Maxwell that she no longer wanted to work at Advo. Maxwell Declaration ¶ 17.
Hansen asserts that she did not want to work from home, but was forced to do so for the last two weeks of her employment as retaliation for her complaints. This assertion is not fully supported by Hansen's actual deposition testimony:
Q: So you finished the meeting with Emanuel [Maxwell] and the other HR guy?
A: Right.
Q: Did you go back to your office?
A: I was just walking out the door, and Tim [Townsend] was right there, and he said, "Are you uncomfortable?" and I said, "Yeah. Who wouldn't be?" and then I walked back to my office, and Tim went in to talk with them.
Q: Okay.
A: Tim was in there for 20 minutes or so, probably, and when he came out . . . they called me back in and sat me down, and they said, "We're going to have you work from home for the last few weeks. It will be great. A lot of people like working from home. They get to wear their pajamas," blah, blah, blah. It was, like, "I'm going to take you back to your office so you can pack up your things."
I was physically in shock at that point. I had no words. Emanuel walked me back to my office, and I was cleaning out my drawer, and he came in, and he shut the door behind him, and he said, "How are you feeling about the way things have gone?" and I said, "Actually, I am really mad," and I did start to cry. My lip was quivering. I was really uncomfortable. And he said, "You're mad?" and questioned that, and I replied and said, "Yeah. It took a lot to give you guys examples of everything that happened and try to do the right thing, and I feel like I'm being made to look like the bad guy. I'm being sent home. I don't want to work from home," and he said, "Well, do you still want to work here?" and I said, "No, not now," and he said, "Well, we probably would be handling things different [sic] if you still wanted your job."
Hansen dep. 194:14-195:24.
Hansen testified that she left the office and did not return. While at home, she "sat by my computer and waited and sent e-mails" to Townsend but did not hear from him. Hansen dep. 196:6-197:7. This testimony is contradicted by a string of e-mails between Hansen and Maxwell.
Hansen sent Maxwell an e-mail dated Wednesday, March 1, 2006, saying Townsend had sent out two notices that he was sick and a third saying he was out traveling for the rest of the week. Hansen wrote, "This leaves me no time to get into contact with him. While he has excuses, they all seem very convenient." Maxwell Declaration, Exhibit E. Hansen continued that she had left a voicemail asking Townsend to call her on Monday (presumably, the preceding Monday, February 27, 2006). Id.
Maxwell responded to Hansen's e-mail the same day, March 1, 2006, saying he would ask Townsend to call Hansen immediately.Id. Maxwell did so; Townsend responded via e-mail, also dated March 1, 2006, saying he had been sick for the previous four days, and had notified Hansen and other employees of his illness via e-mail. Id. Townsend also said that on the morning of March 1, 2006, he had traveled to Seattle and worked on projects there. Id. Townsend wrote, "As for projects . . . I do not have anything for her at this time but will check when I get back to the Portland office on Friday." Id. Townsend then sent Hansen a list of things to do, including an Advo "go to" list, a list of outstanding projects she was working on, and a process description of how sales forecasting worked, to be used as a teaching tool for her replacement and a reference tool for other associates. Id. On March 2, 2006, Townsend sent another e-mail asking Hansen to e-mail a vacation file to him. Id. Hansen sent Maxwell an e-mail on March 2, 2006, acknowledging that she had received an e-mail from Townsend listing tasks he wanted completed, and saying she was working on them. Id. Hansen's pay was not decreased during the time she was working at home.
Standard
A party is entitled to summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). A genuine dispute arises "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." State of California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and must draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). The court may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Discussion
A. Sex Discrimination Claim
1. Was Hansen subjected to actionable harassment?
A claim for sex discrimination based on hostile work environment, under Title VII or Or. Rev. Stat. § 659A.030, requires a plaintiff to show that the workplace was "permeated with discriminatory intimidation, ridicule and insult," that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Mains v. II Morrow, Inc., 128 Or. App. 625, 634 (1994). The standard is both subjective and objective: the victim must perceive the environment as abusive, and the environment must be one that a reasonable person would find hostile or abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871 (9th Cir. 2001). In addition, plaintiff must prove that any harassment took place "because of sex." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998); Nichols, 256 F.3d at 872. See also Garcez v. Freightliner Corp., 188 Or. App. 397, 408 (2003).
Factual circumstances relevant to this showing include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23; Garcez, 188 Or. App. at 408.
Advo contends that even if each of Hansen's allegations of misconduct against Fune is accepted, in the aggregate they do not rise to the level of severity or pervasiveness necessary to make out a claim for hostile environment sexual harassment. SeeHarris, 510 U.S. at 21 ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview.") Advo argues that the "severe or pervasive" standard is designed to exclude "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Faragher, 524 U.S. at 786.
Workplace harassment, even harassment between men and women, is not automatically discrimination because of sex "merely because the words used have sexual content or connotations." Oncale, 523 U.S. at 79. Rather, the plaintiff must always prove that the conduct at issue was "not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex." Id. See also Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) (isolated incidents of sexual horseplay or inappropriate behavior not so egregious as to render work environment hostile); Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir. 1988) (off-color jokes told at work did not constitute abusive environment); Benitez v. PGE, 799 F. Supp. 1075, 1080-81 (D. Or. 1992) (sporadic comments or incidents of harassment, without more, will not support a hostile environment claim); Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) (although supervisor's sexually related comments about women were offensive, his conduct was not frequent, severe or abusive enough to interfere unreasonably with plaintiff's employment; offensive conduct was concentrated on one occasion, occurred in the wake of a dispute, and comments were about other people); Shepherd v. City of Salem, 320 F. Supp.2d 1049, 1057-58 (D. Or. 2004) (supervisor hugged and "rubbed up" against female employees, offered to adjust employee's blouse, commented that he liked employees' short skirts, and commented to employees about female customers' hips and breasts).
Hansen asserts that during her employment at Advo, she was subjected to an "unwelcome constant barrage of offensive comments of a sexual nature." She relies on her own characterization of Fune's behavior as "constant," and "daily," and her own testimony that she continually told Fune he was "crossing the line." But the mere conclusory assertion that conduct was constant is not sufficient to prove pervasiveness, in view of the paucity of Hansen's specific examples of such conduct. As Advo points out, on a motion for summary judgment, Hansen is required to come forward with specific facts which show there is a genuine issue for trial, and Hansen is required to provide sufficient detail to "enable a reasonable trier of fact to conclude that discrimination has occurred." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 n. 5 (9th Cir. 2004).
Further, as Advo points out, the conduct was not "severe," as that term is used in sexual harassment cases: Hansen does not allege that Fume propositioned her, touched her inappropriately, expressed any romantic or sexual feelings toward her, threatened or insulted her, called her names, stalked her, or used offensive language toward her. The conduct alleged against Fune is neither severe nor pervasive enough to constitute sexual harassment. The hostile environment sexual harassment claim is dismissed.
2. Was Hansen subject to sex discrimination in her job duties?
The legal framework for considering summary judgment in a disparate treatment discrimination case is that established byMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g.,Chuang v. Univ. of Calif. at Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). The federal burden-shifting analysis also applies to discrimination claims under Oregon statutes. Snead v. Metropolitan Property Cas. Co., 237 F.3d 1080, 1093 (9th Cir. 2001).
Under McDonnell Douglas, Hansen must first establish a prima facie case of discrimination. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). If she succeeds in doing so, the burden shifts to Advo to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. Id. If it does so, Hansen must show that the articulated reason is pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
a. Prima facie case
A prima facie case of discrimination under McDonnell Douglas requires Hansen to show that 1) she belongs to a protected class; 2) she was performing according to her employer's legitimate expectations; 3) she suffered an adverse employment action; and 4) similarly situated employees outside her protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Advo moves against this claim on the grounds that Hansen cannot show that she suffered an adverse employment action, or that similarly situated male employees were treated more favorably.
b. Adverse employment action
In this jurisdiction, a wide array of disadvantageous changes in the workplace can constitute adverse employment actions. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Nevertheless, Hansen has pointed to no evidence that Advo inflicted any such disadvantageous changes on her. There is no evidence that Hansen was terminated, demoted or not promoted, disciplined, suffered a reduction in pay, received an unfavorable employee review, was transferred, or had job duties taken away.
Hansen asserts that she has met her prima facie case by showing that she was "reassigned" to administrative duties based on her gender, arguing that she was hired as a "sales and marketing assistant" rather than an "administrative assistant" and told she would be doing sales and marketing, not menial administrative tasks such as answering phones and washing coffee cups.
While there is authority that transfers of job duties can constitute adverse employment actions, see, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (transfer of job duties away from plaintiff), Hansen cites to no legal authority suggesting that misrepresentations at a job interview about the importance of her position or the number of interesting tasks she would be assigned is actionable as sex discrimination. The evidence establishes that Hansen, who was in her early twenties at the time of her employment, was hired as an "assistant," to work in the office with Townsend, while all the other Portland office employees worked as salesmen.
But even if Hansen could show that assigning her to such duties as answering the phone, washing most of the dishes, and making travel arrangements for other people, instead of allowing her to pursue sales and marketing tasks exclusively, was an adverse employment action, Hansen's prima facie case founders on the absence of a male comparator.
c. Similarly situated male employee
To be considered "similarly situated, the other employee's job must be similar to the plaintiff's in all material respects."Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). There is no evidence in the record of the existence of a male employee whose job was similar to Hansen's in all material respects, and who was treated differently. The absence of a male comparator is fatal to Hansen's prima facie case of discrimination.
Because Hansen has not made out a prima facie case, I do not reach Advo's articulation of a legitimate nondiscriminatory reason for its actions, although on this record, Advo also would be entitled to summary judgment on the ground that Hansen has not carried her burden of showing that Advo's proffered explanations for Hansen's job duties — that the automated phone system was discontinued because of complaints, that Hansen was the only assistant in the office, and that the menial tasks of which she complains were shared by all the others in the office, including the manager — were pretextual. Hansen's sex discrimination claim is dismissed.
3. Was Hansen constructively discharged because of a hostile work environment?
Although a determination of constructive discharge is normally a factual question, see Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007), constructive discharge based on Title VII is based on an objective inquiry: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004). This standard requires of plaintiff a burden of proof more onerous than the "severe or pervasive" standard of sexual harassment. Id. Unless conditions are "beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress." Id. (internal quotation and citation omitted). In Poland, the court held that constructive discharge occurs when
the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.Poland, 494 F.3d at 1184. As the Poland court observed, the law
set [s] the bar high for a claim of constructive discharge because federal antidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable.Id.
In Poland, the court held that plaintiff had not, as a matter of law, shown that he was constructively discharged because neither the court's factual findings nor any other evidence in the record indicated that plaintiff's working conditions were "so poor that they trumped his motivation to earn a living." 494 F.3d at 1185. Hansen has not made out a constructive discharge claim based upon her assignment to office assistant job duties. See, e.g., Poland, 494 F.3d at 1185 ("constructive discharge cannot be based upon the employee's subjective preference for one position over another.") Nor, having failed to demonstrate that Fune's alleged misconduct was either severe nor pervasive enough to constitute sexual harassment, can Hansen satisfy the heavier burden of proving that her working conditions were so intolerable that a reasonable person would have felt compelled to resign, particularly when, as here, the record contains evidence that Hansen's motivation in quitting her job was the desire to resume her education.
Hansen's sex discrimination claim based on constructive discharge is dismissed.
B. Retaliation Claim
To establish a claim of retaliation, Hansen must show that 1) she engaged in protected activity; 2) she suffered an adverse employment action; and 3) there was a causal link between the protected activity and the adverse employment action. Poland, 494 F.3d at 1180; Villarimo v. Aloha Is. Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). At the prima facie stage, the causal link element is construed broadly, so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated. Poland, 494 F.3d 1181, n. 2. Advo does not dispute that Hansen's complaints about Fune, whether made to Quock or to Townsend, constitute protected activity.
An adverse employment action is "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." Poland, 494 F.3d at 1180; Ray, 217 F.3d 1234, 1242-43. Advo asserts that Hansen has not demonstrated that she suffered an adverse employment action. I agree.
Hansen's assignment to the duties of an administrative assistant cannot constitute an adverse employment action because the assignment was not a "disadvantageous change" in her employment, and, even if it were, Hansen has not produced any evidence that assigning her to those duties was in retaliation for protected activity. Hansen contends that she was assigned to the duties of an administrative assistant from the beginning of her employment, before she complained to Quock, Townsend, or Maxwell.
Although Hansen asserts that being told to work at home after Maxwell arrived to investigate her complaints about Fune was an adverse employment action, this assertion is unpersuasive. Hansen had already tendered her resignation before she was told to work at home; further, there is evidence in the record that Hansen expressed discomfort with continuing to work in the office after she made her complaints. In view of this evidence, Hansen has not demonstrated that working at home for the last two weeks of her employment, with the same salary and benefits, was an adverse employment action. Hansen argues that being made to work at home would deter other employees from complaining about sexual harassment, but in view of the evidence that she had already resigned and had expressed discomfort with remaining in the office, no reasonable jury could conclude that being told to work at home constituted an adverse employment action taken in retaliation for Hansen's complaints in February 2006. Assuming the truth of Hansen's contention that she had made earlier complaints about Fune to Quock, there is no evidence of any adverse employment action taken against her as a result of these complaints; Hansen's only contention is that Quock failed to investigate her complaints, and this is not an adverse employment action against Hansen.
Hansen's retaliation claim is dismissed.
C. Intentional Infliction of Emotional Distress Claim
A claim for intentional infliction of emotional distress requires the plaintiff to show 1) an intent by defendant to inflict to inflict severe emotional distress on the plaintiff; 2) that defendant's acts caused plaintiff severe emotional distress, and 3) that defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.McGanty v. Straudenraus, 321 Or. 532, 543 (1995). What constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law. Harris v. Pameco Corp., 170 Or. App. 164, 171 (2000).
Advo asserts that the record before the court provides no basis from which to find that the conduct of Advo, its managers or its employees was outrageous. I agree. Nor does the record before the court demonstrate an intent by Advo to inflict severe emotional distress on Hansen. Hansen's claim for intentional infliction of emotional distress is dismissed.
D. Punitive Damages Claim
Advo moves against Hansen's claim for punitive damages, asserting that she has not produced evidence showing that Advo engaged in discriminatory conduct with malice or with reckless indifference to her federally protected rights, citing Kolstad v. American Dental Society, 527 U.S. 526 (1999). Advo argues that Hansen must show that it acted with "knowledge that its actions may have violated federal law," or with disregard by "showing that the defendant's employees lied . . . in order to cover up their discriminatory actions." Id. at 535.
Advo points to the evidence that it has adopted an anti-harassment policy, see Defendant's CSF 21, and implemented the policy in good faith. Id.; see also Maxwell Declaration ¶ 3.
Hansen counters that she has presented evidence that Townsend "did nothing to stop the harassment she experienced despite repeated complaints and being present for some of the inappropriate comments." But there is no evidence that Hansen ever complained to Townsend about harassment until the February 16, 2006 meeting. Hansen does not dispute that immediately after Hansen complained to Townsend about Fune on February 16, 2006, Townsend called Maxwell at HR, Maxwell contacted Hansen, and Maxwell began investigating the complaints.
Hansen also relies on her complaint to Quock. This single episode does not constitute "repeated" complaints, and Quock's failure to investigate Hansen's complaint about Townsend and Fune during the two months or so that remained of his employment with Advo is not conduct sufficient to create a genuine issue of material fact in support of Hansen's claim for punitive damages. Regardless of whether Quock's failure to respond to a complaint by Hansen constituted inadequate implementation of Advo's antidiscrimination policy, it does not constitute the kind of malicious or reckless of behavior that justifies punitive damages.
The claim for punitive damages is stricken.
E. Motion to Strike
Advo has filed objections to some of Hansen's evidence. I have considered those objections and my rulings on those objections are reflected in this Opinion and Order.
Conclusion
Defendant's motion for summary judgment (doc. # 17) is GRANTED.
IT IS SO ORDERED.