Equal Emp't Opportunity Comm'n v. Fred Meyer Stores, Inc.
| Decision Date | 17 June 2013 |
| Docket Number | Case No. 3:11-cv-00832-HA |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. FRED MEYER STORES, INC., Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiff initiated this action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex and to provide relief to a class of current and former employees of defendant. Specifically, plaintiff alleges that defendant subjected the class members to a sexually hostile work environment because of their female sex. Plaintiff filed a Motion for Partial Summary Judgment [126], requesting that this court strike defendant's Affirmative Defenses 16, 18, 19, 20, 22, 24, 26, 27, and 30. In the alternative, plaintiff requests summary judgment on the same affirmative defenses. Defendant also filed a Motion for Partial Summary Judgment [121], asserting that plaintiff cannot establish that Class Members Kelly O'Neal, Courtney McMurray, Deborah Atlee, and Addie Humiston were subjected to a hostile work environment as a matter of law.Defendant also asserts that Humiston signed two settlement agreements releasing defendant of Title VII claims. The court heard oral arguments on May 30, 2013.
This case involves events that occurred in a retail department store in Oak Grove, Oregon, owned by Fred Meyer Stores, Inc. ("defendant"). Plaintiff is the U.S. Equal Employment Opportunity Commission ("EEOC" or "plaintiff"), which is a governmental agency responsible for enforcing federal employment discrimination laws. Plaintiff's claims originate from repeated interactions between Charles Janac, a regular customer of the Oak Grove store, and several current and former employees of the store - Laura Morrow, Kelly O'Neal, Victoria Settle, Janet Dudley, Deborah Atlee, Addie Humiston, and Courtney McMurray. These listed class members and a class of similarly situated individuals allege that they were sexually harassed by Janac on multiple occasions and defendant failed to adequately address the problem, despite its knowledge of it.
Management of the Oak Grove store was first made aware of Janac's conduct in 2007, when McMurray complained that Janac had reached down her shirt. In 2008, Atlee reported to Loss Prevention Management, the department tasked with reducing liability associated with accidents in the store, that an older customer attempted to grab her breast. After Janac pressed his body against Humiston and attempted to touch her several times, Humiston complained of Janac's behavior to Apparel Manager Pat McPhee and Assistant Apparel Manager Darla Anderson. In the beginning of 2009, Janac patted Settle's breast and she complained to Assistant Manager Tom Banks. In April 2009, Janac poked O'Neal in the breast, but she did not report theincident to managers. Later in 2009, Janac grabbed Morrow's breast.1
Morrow filed a charge with the EEOC, alleging violations of Title VII by defendant. On July 12, 2011, plaintiff filed a complaint in which it alleges that defendant engaged in unlawful practices in violation of 42 U.S.C. § 2000e-2(a) by subjecting Morrow and the class members to harassment because of their sex. The parties each filed a motion for partial summary judgment. Each motion will be addressed separately below.
A party is entitled to summary judgment as a matter of law 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); Bahn v. NME Hosps., Inc., 929 F.2d 1404,1409 (9th Cir. 1991). The moving party carries the initial burden of proof and meets this burden by identifying portions of the record on file that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the non-moving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id
The court must view the evidence in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (citations omitted). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. MetroPCS, Inc. v. City & County of S.F., 400 F.3d 715, 720 (9th Cir. 2005)(citation omitted). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Scmkovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981) (citing Fed. R. Civ. P. 56©).
Deference to the non-moving party has limits. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The "mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 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) (citation omitted).
As an initial matter, defendant sets forth many objections to evidence offered by plaintiff in its Motion for Partial Summary Judgment. More specifically, defendant objects to the manner in which plaintiff describes the testimony of several deponents. For each objection, defendant states plaintiff's description of the testimony and directs the court to the relevant pages of the applicable deposition transcript. For example, defendant takes issue with plaintiff stating that Shonna Kimble "recall[ed] that a clerk got touched on her breast by a customer while she was the manager at Oak Grove." Defendant cites the deposition transcript and explains that Kimble really testified that someone, who she does not remember, told her that a clerk got touched on the breast. All of the evidentiary objections are similar in nature. For each of defendant's evidentiary objections, the court acknowledges and relies upon the true testimony of eachdeponent. The court also acknowledges and relies upon the original portions of the deposition transcripts that plaintiff has highlighted in its Reply to Defendant's Opposition to EEOC's Motion for Partial Summary Judgment [143].
Pursuant to Federal Rule of Civil Procedure 12(1), plaintiff moves to strike defendant's Affirmative Defenses 16, 18, 19, 20, 22, 24, 26, 27, and 30. Rule 12(f) provides, in relevant part, that a court may strike any redundant, immaterial, impertinent, or scandalous matter "on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." Defendant filed its Answer and Affirmative Defenses to First Amended Complaint [54] on June 4, 2012, and plaintiff did not move to strike these affirmative defenses until December 31, 2012. Therefore, plaintiff's motion to strike is untimely and denied.
In the alternative, plaintiff requests summary judgment on the same affirmative defenses. During oral argument, defendant argued that requesting summary judgment on an affirmative defense is procedurally inappropriate, directing the court to Kerzman v. NCH Corp., No. C05-1820JLR, 2007 WL 765202 (W.D. Wash. Mar. 9, 2007). In Kerzman, the court held that a motion for summary judgment on an affirmative defense is properly construed as a motion to strike. Id. at *7. This court declines to follow Kerzman for several reasons. First, Federal Rule of Civil Procedure 56(a) expressly permits a party to move for summary judgment on a "claim or defense" (emphasis added). Second, in E.E.O.C. v. United States Bakery, Inc., No. 03-64-HA, 2004 WL 1774214, *9 (D.Or. Aug. 9, 2004), this court granted summary judgment for plaintiff as to the defendant's affirmative defense. Finally, a motion that attacks the substance ofdefendant's affirmative defenses rather than the form of the pleading should be treated as a motion for summary judgment, allowing the court to consider facts outside the pleadings. To hold otherwise would render this court unable to rule on a timely motion to strike. Accordingly, each affirmative defense will be analyzed to determine if it satisfies the standards to survive summary judgment.
Plaintiff seeks summary judgment on defendant's Affirmative Defenses 16 and 18. Affirmative Defense 16 states, "Plaintiff's First Amended Complaint fails to state a claim upon which relief can be granted." Affirmative Defense 18 states, "Plaintiff's First Amended Complaint is barred or precluded because the unidentified alleged 'similarly situated' individuals have failed to state a timely claim or have failed to state a claim upon which relief can be granted."
In support of its motion, plaintiff asserts that its First Amended Complaint satisfies the threshold of "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Defendant argues that plaintiff has failed to meet the pleading standard because it did not allege that each class member complained to defendant's managers about the alleged harassment. In a case such as this, in which the Title VII claim against the employer involves harassment by an individual that does not supervise the claimant, "plaintiff must prove that the employer was negligent, i.e. that the employer knew or should have known of the harassment but did not take adequate steps to address it." Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). Accordingly, plaintiff need not allege that each class member complained about the harassment, but rather plaintiff need only allege...
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