Little v. Windermere Relocation, Inc.

301 F.3d 958

Maureen LITTLE, Plaintiff-Appellant, v. WINDERMERE RELOCATION, INC., a Washington corporation, Defendant-Appellee.

No. 99-35668.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2001.

Opinion Filed September 12, 2001.

Amended January 23, 2002.

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Marilee Erickson, Danielle A. Hess and Jennifer L. Moore, Reed McClure, Seattle, WA, for the appellant.

Patrick N. Rothwell, Abbott, Davis, Rothwell, Mullin & Earle, P.C., Seattle, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-98-01184-RSL.

Before: PREGERSON, THOMAS and GOULD, Circuit Judges.

ORDER

The opinion filed on September 12, 2001, is hereby amended. With the amendments, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

THOMAS, Circuit Judge.

Maureen Little ("Little") appeals from an order granting summary judgment on her claims of hostile work environment and retaliation in violation of Title VII, and wrongful discharge in violation of Washington state law. Because genuine issues of material fact exist on these claims, we reverse the judgment of the district court. We affirm the dismissal of her state law claim of negligent infliction of emotional distress.

I

Taking the facts in the light most favorable to the plaintiff, as we must in evaluating the propriety of a grant of summary judgment, see Ellison v. Brady, 924 F.2d 872, 873 (9th Cir.1991), the events leading up to this lawsuit occurred as follows:

Little was employed by Windermere Relocation Services, Inc. ("Windermere") as a Corporate Services Manager, a position that required her "to develop an ongoing business relationship and relocation contacts with corporations in order to obtain corporate clients needing relocation services for their employees." Until she was terminated, she received only positive feedback from her supervisors. Windermere's records confirm that during the relevant period, Little had the best transaction closure record of all corporate managers by a large margin.

Unlike the other managers, Little's employment contract provided that Little would receive $2,000 monthly, plus a $1,000 monthly override and $250 per closed sale. The override was based on the assumption that Little would close four transactions per month, with a provision for rollover when she did not make target. According to Windermere President Gayle Glew, the other managers had not received the $1,000 override.

One of Windermere's clients was the Starbucks Corporation. Some time in 1997, Little performed some relocation services for Starbucks Human Resources Director, Dan Guerrero, on a contract basis, and she learned from him that Starbucks was dissatisfied with its primary relocation provider. Glew told Little that he would "do whatever it takes to get this account" and that Little should "do the best job she could." Thus, Little believed that, as part of her job, she was to build a business relationship with Guerrero to try to get the Starbucks account, and she had at least two business lunches with Guerrero toward this end.

On October 14, Little accepted Guerrero's invitation to discuss the account at a restaurant. After eating dinner with Guerrero and having a couple of drinks, Little suddenly became ill and passed out. She awoke to find herself being raped by Guerrero in his car. She fought him off and jumped out of the car, but again she became violently ill. Guerrero put her back in the car and took her to his apartment, where he raped her again. Little fell asleep, and when she awoke he was raping her again. Afterward, he showered and drove her to her car.

Little was reluctant to tell anyone at Windermere about the rape because, in her own words, "I knew how important the Starbucks account was to Mr. Glew. Mr. Glew would ask me on a consistent basis the status of the account and I was afraid that if I told him about the rape, he would see me as an impediment to obtaining the Starbucks account." This belief was reinforced when, a few days after the rape, Little reported the rape to Chris Delay, Director of Relocation Services (apparently not one of Little's supervisors), and Delay advised her not to tell anyone in management. Little believed that Delay feared "what might happen to [Little] if [she] did tell."

On October 23, about nine days after the rape, Little reported it to Peggy Scott, the Vice President of Operations, who was designated in Windermere's Harassment Policy as a complaint-receiving manager. Little described Scott's response:

She came out around the desk and I could tell she was upset and she just gave me a hug and said she wished there was something she could do. She didn't understand what I was going through. She asked me if I was in therapy. Then she proceeded to tell me she wouldn't say anything to [Glew] unless I proceeded to seek legal action [against Dan Guerrero].

Scott told Little that "[s]he thought it would be best that [Little] try to put it behind [her] and to keep working in therapy," and that she should discontinue working on the Starbucks account. She did not give Little any advice about going to the police, and she did not conduct an investigation of Little's complaint or any follow-up interview with Little. Scott testified in her deposition that, because the rape occurred outside the "working environment," she believed that it fell outside the scope of Windermere's Harassment Policy.

Despite Little's supposed removal from the Starbucks account, Glew continued to ask her about the status of the Starbucks account during the next six weeks. "[As of December 2,] Gayle was asking me questions about Starbucks ... a couple of times every month to see what the status was." Concerned by Glew's questions, Little told her immediate supervisor, Linda Bellisario, the Vice President of Sales and Marketing, on December 2, 1997, about the rape. Little had been reluctant to tell Bellisario because she "felt that [Bellisario] would immediately go to Gayle and Gayle would terminate my position.... I knew how much this account meant to him. He said he would do whatever it took to get this account." Bellisario told Little to inform Glew of the incident.

When Little told Glew of the rape, which, according to Glew, was the first he had heard of it, Glew's "immediate response was that he did not want to hear anything about it." He told Little that she would have to respond to his attorneys. Glew then informed her that he was restructuring her salary from $3,000 monthly to $2,000 monthly plus $250 per closed transaction. The pay reduction was effective immediately and non-negotiable. Bellisario, who was present at that portion of the meeting, appeared "surprised and upset" to Little.

She told me [later] that she had no idea Mr. Glew was going to cut my salary. It did not appear he had talked with her about my pay structure prior to his making his decision .... [She] was crying and she was upset, she said she had no idea that Gayle was going to talk about this at all. And she had no idea he was going to reduce my pay. And that she didn't want me to leave and she didn't know what to do. And she was pretty upset about the whole thing.

Little found the pay cut unacceptable, and Glew told her to go home for two days to think it over "because he did not want any `clouds in the office.'" When Little still found the pay cut unacceptable two days later, Glew told her it would be best if she moved on and that she should clean out her desk.

Little brought suit against Windermere, alleging unlawful discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e, and the Revised Code of Washington § 49.60; wrongful discharge in violation of public policy; and intentional, reckless, and/or negligent infliction of emotional distress. The district court granted summary judgment in favor of Windermere on all four claims. We review the district court's grant of summary judgment de novo. Ellison, 924 F.2d at 873.

II

Little alleges that Windermere's response to the rape created a hostile work environment in violation of Title VII and the Washington Law Against Discrimination, Rev. C. Wash. § 49.60.180(3). Because Washington sex discrimination law parallels that of Title VII, see Payne v. Children's Home Society of Washington, Inc., 77 Wash.App. 507, 892 P.2d 1102, 1105 (1995), it is appropriate to consider Little's state and federal discrimination claims together.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination, including sexual harassment, in employment. 42 U.S.C. § 2000e-2(a)(1); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

When evaluating a claim of sexual harassment based on a hostile work environment, we must determine two things: whether the plaintiff has established that she or he was subjected to a hostile work environment, and whether the employer is liable for the harassment that caused the environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-89, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871-75 (9th Cir.2001). Both present mixed questions of law and fact that we review de novo. See Id. at 871, 875.

A

To establish that she was subjected to a hostile work environment, a plaintiff must prove that "1) she was subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) this...