427 F.3d 1177 (9th Cir. 2005), 03-35906, Hardage v. CBS Broadcasting, Inc.

Docket Nº:03-35906.
Citation:427 F.3d 1177
Party Name:Hugh HARDAGE, Plaintiff-Appellant, v. CBS BROADCASTING INC., a New York Corporation; Viacom Television Stations Inc., a Delaware Corporation; Viacom Broadcasting of Seattle Inc., a Delaware Corporation; Kathy Sparks, an individual, Defendants-Appellees.
Case Date:November 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1177

427 F.3d 1177 (9th Cir. 2005)

Hugh HARDAGE, Plaintiff-Appellant,


CBS BROADCASTING INC., a New York Corporation; Viacom Television Stations Inc., a Delaware Corporation; Viacom Broadcasting of Seattle Inc., a Delaware Corporation; Kathy Sparks, an individual, Defendants-Appellees.

No. 03-35906.

United States Court of Appeals, Ninth Circuit.

Nov. 1, 2005

Argued and Submitted May 3, 2005—Seattle, Washington

As amended Jan. 6, 2006.

Second Amendment Feb. 8, 2006.

Page 1178

[Copyrighted Material Omitted]

Page 1179

[Copyrighted Material Omitted]

Page 1180


Claudia Kilbreath, Short Cressman & Burgess PLLC, Seattle, Washington, for the plaintiff-appellant.

Harry J. F. Korrell and Kathryn S. Loppnow, Davis Wright Tremaine LLP, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington, D.C. No. CV-02-01303-JCC, John C. Coughenour, Chief Judge, Presiding

Before: J. Clifford Wallace, Barry G. Silverman, and Richard A. Paez, Circuit Judges.



The district court entered summary judgment dismissing Hardage's sexual harassment and retaliation claims against CBS Broadcasting Inc., Viacom Television Stations Inc., and Viacom Broadcasting of Seattle Inc. (collectively, CBS), pursuant to Title VII of the 1964 Civil Rights Act and the Washington Law Against Discrimination (WLAD). The district court concluded that CBS was entitled to assert an affirmative defense to liability based on the Supreme Court's decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and it accordingly denied Hardage's motion for partial summary judgment on that issue. In addition, the court declined to exercise supplemental jurisdiction over Hardage's WLAD claims against Kathy Sparks (the alleged harasser) and dismissed those claims without prejudice. See 28 U.S.C. § 1367(c). The court also dismissed Hardage's Title VII claims against Sparks with prejudice, and Hardage does not appeal this portion of the court's judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


In the summer of 1998, Hardage began working as an advertising account executive for KSTW-TV, a television station owned by Viacom Television Stations, Inc. and managed by CBS Broadcasting Inc. He was promoted to Local Sales Manager in February of 2000, and in this position he worked with another Local Sales Manager, Nadene Stauffer, to manage and supervise the account executives. Both Hardage and Stauffer were supervised by Patty Dean, the General Sales Manager, who was in turn supervised by defendant Sparks, the station's General Manager. Until about a month before Hardage resigned in August of 2001, he worked in the Seattle sales office whereas Sparks worked in the management office in Tacoma.

Hardage contends he was sexually harassed by Sparks on several occasions and subjected to retaliation after he rejected her advances. He alleges that during Sparks' visits to the Seattle office, she repeatedly flirted with him and made inappropriate

Page 1181

comments--such as "[y]ou need somebody that's older and more stable that can take care of you." Leo Elbert, another employee at KSTW, stated that Sparks would "camp out" in Hardage's office, kick back in his chair with her feet on his desk, and smile and giggle in a flirtatious manner. Hardage asserts that he never flirted with Sparks, but that he is a "flirtatious person by nature" and that there was "playful banter from the git-go" with Sparks, some of which he concedes could have been perceived as mutually flirtatious. He has also stated that he referred to Sparks as "Sparkalicious," "Baskin Robbins 32nd Flavor" and "Driving Ms. Sparky." He also agreed in his deposition that his love life in general was "[d]efinitely" part of the "watercooler talk" and "a big topic of conversation around the office."

In addition to the charged workplace harassment, Hardage alleges more serious harassment on five occasions outside of the office. First, on Easter Sunday in 2000, Hardage, Sparks, Dean, Dean's husband, and a few others attended a brunch at the Sorrento Hotel. Hardage believes that he might have been the person who invited Sparks to the event. The group consumed alcoholic beverages and eventually relocated to a sports bar. Hardage drove Sparks in her car. After a few more drinks, Sparks allegedly asked Hardage if her hands were pretty, and then put her foot on an air hockey table while Hardage was playing and asked if he thought she had cute feet. Later, while Hardage was on a skateboard game, Sparks allegedly got up on the skateboard behind him, put her arms around his waist and told him that he had a "cute ass."

After the sports bar, the group went to the Paragon restaurant for dinner and continued drinking alcoholic beverages. Sparks sat across the table from Hardage and allegedly took off her shoe, slid under the table, and put her foot in Hard-age's crotch. At the end of the dinner, many people commented that Sparks was too drunk to drive home, and Sparks asked if she could stay at Hardage's apartment for the night. Hardage declined her request and, according to one witness, Sparks became "livid" and "stormed off' to drive herself home.

The second incident of harassment outside the workplace allegedly occurred two days after the Easter Sunday events. Sparks called Hardage and invited him to the Icon Grill restaurant for drinks after work. At the restaurant, she allegedly told Hardage she had not been able to sleep and "was having orgasms in her sleep." She asked Hardage if he felt the same way about her; Hardage replied that he did not want to damage his career by having a relationship and wanted to go no further than friendship. Hardage asserts that Sparks responded with a snide comment along the lines of, "Don't forget who got you to where you are."

Third, in August of 2000, Hardage and Sparks were both traveling to Texas to visit their respective families. Sparks arranged her travel plans so that she and Hardage sat next to each other on the same flight. Hardage alleges that Sparks took off her shoe and started rubbing her foot on his leg. After he asked her to stop, she began rubbing his back "in a kind of a weird manner." Sparks later referred to Hardage as her boyfriend as she was ordering drinks from a flight attendant, and as they were consuming their drinks, she grabbed his hand and made explicit sexual advances. Hardage contends that she offered him oral sex and told him that one experience of sexual intercourse with her would be life-altering for him. Hardage told her that nothing physical would happen between them.

Page 1182

The fourth incident of alleged harassment occurred in October of 2000, when Hardage and Sparks took some of KSTW's clients to a baseball game. This is the only alleged instance of harassment outside the workplace that occurred during a work-related event. Hardage and Sparks sat next to each other, and Sparks began rubbing his leg with her foot. Hard-age responded, "Kathy, cut it out, you know, we got clients sitting next to us, it's inappropriate." Later, Sparks allegedly took off her rain poncho, put it over Hardage's lap and reached under it for Hardage's crotch. Hardage states he elbowed her hand away and told her to stop.

After the game, Hardage invited Sparks to join him for drinks with his friends at the Pesos bar. Sparks allegedly glared at Hardage while he greeted his friends, including several women, and shouted, "Who haven't you f--ed in here?" Hardage states he pointed to one woman and responded jokingly, "I haven't f--ed anybody in here, you know, but hopefully she's next." Sparks became very upset, asked to be taken back to her car, and shouted obscenities to Hardage. One witness, Leo Elbert, has stated that Sparks told Hardage, "Don't f--ing talk to me. You're finished."

The day after the Pesos incident, Hardage complained to Dean and told her that "[l]ast night, things went way too far" and that Sparks had lost her temper. However, Hardage has stated that he did not tell her "specifics about sexual contact" and never told Dean that Sparks had touched him in an inappropriate way, nor did he share any details of the harassment with anyone else at work.

Hardage also testified that Dean later suggested something "to the effect of . . . 'Why don't you just do it and get it over with. It may put her in a better mood.' " However, when Hardage told Dean about the Pesos incident, Dean promptly contacted Ray Rajewski, an executive vice president, who in turn called Hardage to let him know that he would be contacted by Paul Falcone, a representative from the company's human resources department. Falcone called Hardage the same day of Hardage's complaint and arranged to meet with him in person the following week.

During their subsequent meeting--which occurred while Hardage drove Falcone to the airport--he did not give Falcone details about the harassment; indeed, he "didn't share any of the so-called gory details with anybody." Instead, he gave Falcone "[j]ust the broad statement . . . that [Sparks] had made . . . unwanted sexual advances that were denied," that he was uncomfortable with the situation, and that Sparks had lost her temper and was "jeopardizing . . . the success of the team." Hardage did not tell Falcone about any of the alleged physical contact or groping by Sparks.

It is also undisputed that although Falcone offered to talk to Sparks and treat Hardage's complaint as an anonymous complaint, Hardage insisted on handling the situation by himself. Hardage explained in his deposition that he did not think the complaint could be handled...

To continue reading