Rasmusson v. Copeland Lumber Yards, Inc.
| Decision Date | 31 October 1997 |
| Docket Number | No. CV-N-96-258-RAM.,CV-N-96-258-RAM. |
| Citation | 988 F.Supp. 1294 |
| Parties | Dale RASMUSSON, Plaintiff, v. COPELAND LUMBER YARDS, INC., Defendant. |
| Court | U.S. District Court — District of Nevada |
Mark Mausert, Reno, NV, for Plaintiff.
Stephen C. Balkenbush, Thorndal, Backus, Armstrong & Balkenbush, Reno, NV, for Defendant.
This matter is before the court on Defendant's Motion for Summary Judgment (Doc. # 12). Plaintiff has opposed the motion (Doc. # 15), and Defendant has replied (Doc. # 18).
This is a Title VII sexual discrimination case. In April of 1995, Plaintiff Dale Rasmusson ("Rasmusson") was hired as a stock clerk at Copeland Lumber1. Rasmusson, a male, complains he was harassed by his male supervisor, George Dimitrievski ("Dimitrievski"). There is no allegation that either are homosexual.
The first incident occurred approximately one month after Rasmusson began work. Dimitrievski commented to fellow employee Gordon Dahl ("Dahl") that they should "take Dale in the back room and fuck him." Dahl replied, "[n]o, I just want to put my cock in his mouth and see what happens." (Doc. # 15, exhibit 1, pp. 22-23). Rasmusson complained to the General Manager, Randy Smith ("Smith"). Smith replied "[t]hat's just the way we talk here at the lumberyard." (Id., p. 25). However, Smith spoke to Dimitrievski and Dahl, who then apologized to Rasmusson. (Id., p. 26).
Despite the apology, the offensive conduct continued, Dimitrievski, on a number of occasions, told Rasmusson to "[c]ome here and give me a blow job." (Id., pp. 26-27, 33). After one of these comments, Rasmusson replied, "George, if I ever did that, you would never return to your wife." (Id., pp. 27-28). Rasmusson made this comment in front of Smith and "some other girls in the office." (Id.). Rasmusson alleges that he complained of several blow job remarks to Smith, whose response was "[w]ell, you know, I've never heard him [Dimitrievski] say anything." (Id.).
Rasmusson testified that he believed Dimitrievski "was saying some of these things to get me angry, to get me fed up because I had gone to Randy (Smith) with it originally when it first happened..." (Id., p. 30). Dimitrievski told Rasmusson, (Id.).
Rasmusson alleges that the harassment continued. Dimitrievski called him "a lot of degrading names." (Id., p. 31). Dimitrievski pulled Rasmusson's head towards his crotch as Rasmusson was bending over to retrieve a toolbox. (Id.). Another time, Dimitrievski grabbed Rasmusson in a bear-hug and "started humping me like a dog." (Id., pp. 31-32). Dimitrievski admitted he had a habit of grabbing male employees, and Smith was grabbed at least one time. (Id., pp. 35-36).
Rasmusson claims that he complained to Smith about Dimitrievski's conduct at least a half a dozen times, but Smith took no further action. (Id., p. 33). He finally quit complaining to Smith "because it was going nowhere." (Id., pp. 33-34). Rasmusson was informed by some female employees at the office that Dimitrievski warned Smith not to take any action. Specifically, Dimitrievski threatened to reveal to corporate headquarters that Smith was sexually harassing the female employees. (Id., p. 49). As a result, Rasmusson alleges that Smith did not handle his complaints.
Around October 9, 1995, Rasmusson contacted Randy Stedman ("Stedman"), Copeland's Director of Human Resources, to complain about Dimitrievski (Doc. # 12, exhibit A, p. 40). When Rasmusson was hired, he was given an Employee Handbook which defined sexual harassment and stated, "[a]ny employee who believes they have been subjected to sexual harassment should contact the Director of Human Resources in confidence." (Id., exhibit B). On October 12, 1995, Rasmusson provided a written complaint to Stedman. (Id., exhibit A, pp. 43-44). A day or two later, Stedman came to the lumber yard to investigate Rasmusson's complaint. (Id., p. 44). Stedman interviewed Dimitrievski. (Id.). A few days later, when the investigation was complete, Dimitrievski was terminated. (Id., pp. 50-51).
Shortly thereafter, Dahl (who is a management level employee), informed Rasmusson that corporate headquarters had ordered a close inspection of all Rasmusson's sales tickets. (Doc. # 15, exhibit 1, p. 78). When Rasmusson asked for an explanation, he was told it was "not your business." (Id.). Rasmusson, now believing Copeland was "looking over my shoulder to find any and every mistake that might be made," began to make mistakes when writing sales tickets. (Id., pp. 79-81, 84, 96). Rasmusson was told by some office workers that he wasn't making as many mistakes as other employees had in the past. (Id., p. 85).
On December 20, 1995, Rasmusson was terminated due to poor work performance. (Doc. # 12, exhibit A, pp. 99-101). During Rasmusson's employment, he had a history of absenteeism, and in November and December 1995, he was counseled regarding compliance with Copeland's policy of two breaks per day. (Id., pp. 19-20, exhibit E, # 17).
Rasmusson has alleged four causes of action: (1) Hostile Environment Discrimination in violation of Title VII, (2) Quid Pro Quo Discrimination in violation of Title VII, (3) Retaliation in violation of Title VII, and (4) Negligence (Doc. # 1).
Copeland has moved for summary judgement on all claims (Doc. # 12).
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which the moving party believes indicates the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
Once the moving party has met its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue as to any material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Additionally, the nonmoving party must show that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively; only that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).
In determining whether to grant or deny the motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)). However, to demonstrate a genuine issue, the opposing party Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).
Title VII of the 1964 Civil Rights Act outlaws sex discrimination in an employment context. 42 U.S.C. § 2000e et seq. This general prohibition extends to sexual harassment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). There are two theories by which sexual harassment can be found under Title VII: hostile environment and quid pro quo. Ellison v. Brady, 924 F.2d 872, 875 (9th Cir.1991).
However, there are two preliminary issues which must be resolved before Rasmusson can prove a Title VII violation based on one of the above theories. First, there is the issue of whether a claim for harassment exists when both the harasser and victim are of the same gender. Second, there is the issue of whether Rasmusson was harassed because of his gender, as required by the statutory language of Title VII.
A threshold inquiry in the case at bar is whether a cause of action exists for same gender sexual harassment under Title VII. This issue is undecided in both the Supreme Court and the Ninth Circuit2. However, case law from other circuits, as well as Ninth Circuit decisions on similar issues, provide guidance.
Title VII, on its face, draws no distinction between men and women, and the Supreme Court has never indicated that only opposite gender harassment is actionable. The prohibition against sex discrimination was added to the language of Title VII by a congressional opponent in a last minute attempt to defeat the bill. 110 Cong.Rec. 2577-84 (1964). Thus, there is no indication...
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