Nester v. Recreational Equip., Inc.

LEANNE NESTER, Plaintiff, v. RECREATIONAL EQUIPMENT, INC., Defendant.

Case No. 2:17-cv-03103-MMD-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 19, 2019

ORDER

I. SUMMARY

Plaintiff Leanne Nester alleges that Defendant Recreational Equipment, Inc. ("REI") fired her, and took other adverse employment actions against her, because she is a heterosexual woman who suffers from hyperthyroidism. (ECF No. 1.) She specifically alleges discrimination and retaliation regarding her hyperthyroidism, and a sexual harassment claim with a retaliation component—mostly directed at one of her former supervisors. (Id.) Before the Court is Defendant's motion for summary judgment on all of Plaintiff's claims ("Motion") (ECF No. 34),¹ and motion to seal one of the exhibits to its Motion ("Motion to Seal") (ECF No. 36). As further explained below, the Court will grant the Motion in its entirety—as to Plaintiff's disability-related claims because of her failure to exhaust her administrative remedies, as to Plaintiff's sexual harassment claim because she was not subjected to an objectively hostile work environment, and as to her retaliation claim because Plaintiff failed to proffer sufficient evidence of pretext to rebut the legitimate, non-retaliatory business reasons Defendant proffers for each of the alleged adverse employment actions it took against Plaintiff. The Court will also grant Defendant'sMotion to Seal because Defendant provided compelling reasons to seal one exhibit to its Motion.²

II. RELEVANT BACKGROUND³

Defendant owns and operates retail stores that sell outdoor sports clothing and equipment, such as kayaks and hiking boots. Plaintiff worked in Defendant's Boca Park, Las Vegas, Nevada store as a sales specialist from approximately June 2013 until May 13, 2017, when she was terminated. (ECF No. 1 at 2.) The gravamen of Plaintiff's Complaint is that she was fired because she rebuffed an invitation for a date from a manager, who then engaged in a campaign of retaliation against her that culminated with her termination. (Id. at 2-6.) She further alleges that both that manager, and the store manager of the store where she worked, discriminated against her because she has a disability—hyperthyroidism—and then retaliated against her because she refused to carrya mobile point of sale device ("MPOS") in contravention of a note she obtained from her doctor. (Id.) Thus, Plaintiff's claims break into two categories, disability discrimination and related retaliation in violation of the Americans with Disabilities Act, as amended by the ADA Amendments Act, 42 U.S.C. § 12101, et seq. (the "ADA"), and hostile work environment sexual harassment and related retaliation in violation of Title VII the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). (Id. at 1.) While Plaintiff's factual allegations regarding these claims overlap, the Court will briefly describe them somewhat separately below in the interest of clarity. But the Court will first describe the facts relevant to Plaintiff's contested termination.

A. Plaintiff's Employment Termination

Defendant offers a "ProDeal" program, which allows employees to buy discounted or wholesale-priced merchandise from Defendant and its vendors.⁴ (ECF No. 34 at 4; see also ECF No. 34-1 at 177.) "There are two types of ProDeals: Vendor ProDeals (which are offered and sold directly from one of REI's many participating vendors) and REI Gear & Apparel ProDeals[,]" which apply to REI-branded merchandise and Novara bicycles. (ECF No. 34-1 at 65.)

The former—a Vendor ProDeal—is relevant to Plaintiff's employment termination. Specifically, Plaintiff purchased a child's personal flotation device ("PFD") from Northwest River Supplies ("NRS"), for $22.55, for her then-boyfriend's son, using an NRS (vendor) ProDeal. (ECF Nos. 34 at 26-27, 34-1 at 495, 35-1 at 463, 628.) However, that particular ProDeal was limited to "Employee, Spouse, and Dependent children." (ECF No. 34-1 at 453.) The phrase "Dependent children" was not defined anywhere in the applicable NRS ProDeal, or Defendant's policies. (ECF No. 35-1 at 67-69.) Plaintiff admitted in a written statement completed relatively contemporaneously to the purchase, and in connection with the investigation leading to her termination, that she purchased the PFD for her"stepson/nephew," writing "[i]t was wrong and Im [sic] Sorry [sic]." (ECF No. 34-1 at 495.) Plaintiff further testified at her deposition that the child for whom she purchased the PFD was not her natural child, she was not married to his father, she had not adopted him, and she never claimed him as a dependent for tax purposes. (ECF No. 35-1 at 215-227.) In addition, Defendant proffered a Performance Improvement Process Action form dated the day of Plaintiff's termination indicating she was involuntarily terminated for violating this particular NRS ProDeal. (ECF No. 34 at 26.)

While it is undisputed that a violation of Defendant's ProDeal policy is a terminable offense, the parties dispute whether every ProDeal policy violation will always result in termination. Plaintiff signed a document shortly after she started at Defendant that said, "I have read and understand the Prodeal and employee discount policy for REI. I understand that REI performs routine audits of employee purchases and periodically reviews full purchase history. Failure to abide by the rules of the program may result in disciplinary action up to and including termination of employment." (ECF No. 34-1 at 81.) Plaintiff's former store manager Michael Harcarik stated at his deposition that, "[t]ypically, a ProDeal violation would result in immediate termination." (ECF No. 35-1 at 69.) Defendant's employee handbook also states that ProDeal violations are a terminable offense. (ECF No. 34-1 at 67 ("As much as REI hates to lose great employees, if you misuse the employee discount or ProDeal program, your employment may be terminated immediately without being given a "warning" or the opportunity to improve.").) But Plaintiff proffered two declarations from her former coworkers, who said that they knew of other employees who violated the ProDeal policy, or had violated the ProDeal policy themselves, but were not terminated. (ECF No. 35-1 at 176-181.) Further, Harcarik testified at his deposition that store managers retain some discretion over termination decisions in the event of a ProDeal policy violation. (ECF No. 34-1 at 185-191.)

B. Disability-Related Claims

As to Plaintiff's ADA claims, Plaintiff was diagnosed in 2013 with Grave's disease and its resulting hyperthyroidism, where the thyroid overproduces hormones. (ECF Nos.34-1 at 102, 35-1 at 363-64, 368-69.) On July 14, 2016, she got a doctor's note (the "Doctor's Note") stating: "Please be advised that this patient has medical concerns/condition that preclude the persistent use of any device that emits electromagnetic frequency for prolonged periods (>3hr continuous). For this reason, phone is a device that may present concern and or/potential hazard to the above." (ECF No. 34-1 at 293.) Plaintiff interpreted the Doctor's Note to mean that she could not carry an MPOS while at work. (ECF No. 35-1 at 53, 352-55.) Plaintiff therefore generally did not carry an MPOS, and would hide any MPOSs she was given around the store so that she did not have to carry one. (Id. at 360.) She gave the Doctor's Note to her store manager, Harcarik, who added it to her file. (Id. at 351.)

However, one time, another manager, Sarah Webster (located in between Plaintiff and Harcarik in the management hierarchy) asked Plaintiff to use her MPOS, and Plaintiff said she was not carrying one. (Id. at 347-48.) Webster told Plaintiff that meant she was out of uniform and could be terminated for not carrying a MPOS. (Id. at 348.) On several other occasions, some of which were after she gave Harcarik the Doctor's Note, Webster told Plaintiff she had to carry the MPOS. (Id. at 361.) Plaintiff testified she told Webster she gave Harcarik a doctor's note indicating she did not have to carry a MPOS twice, but Webster still asked her to check one out. (Id. at 360.)

C. Sexual Harassment Claim

Plaintiff alleges that Webster asked her out on a date shortly after Webster was transferred to the store where Plaintiff worked. (ECF No. 6 at 2-3.) According to Plaintiff, on one occasion, when Plaintiff was leaving her shift, Webster held the store entrance door open for her. (ECF No. 35-1 at 335.) Then Webster followed Plaintiff out the door. (Id. at 335-36.) Webster said to Plaintiff, "go trail running with me." (Id. at 336.) Plaintiff explained in response that she was "not really a runner," and told Webster to see if another employee, who Plaintiff knew liked trail running, would go with her instead. (Id.) Webster responded that she "didn't ask [the other employee]. I asked you." (Id.) Plaintiff backed away as their conversation continued, and eventually turned around and walkedaway. (Id.) At one point, as Plaintiff was moving away from Webster, Webster said "I see how you are." (Id.) Plaintiff perceived this conversation as a request for a date because of the way Webster asked her, and her body language—not because Webster ever used the word date. (Id. at 338-42.)

Plaintiff reported this conversation to Harcarik shortly after it happened. (Id. at 343-44.) Harcarik told her, "[y]ou have my permission to skip the chain of command and come to me if she is inappropriate anymore to you." Plaintiff did not report the conversation to anyone else, made no written report about it, and Webster never asked Plaintiff out on a date on any other occasion. (Id. at 344-47.) Harcarik checked in with Plaintiff weekly about her interactions with Webster, to make sure Webster was being appropriate, and that Plaintiff's concerns were being addressed. (Id. at 536-38.) However, Plaintiff alleges that Webster nevertheless began a campaign of harassment and retaliation against her after the conversation that Pla...