Walker-Jackson v. Smith's Food & Drug Ctrs.

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KAREN WALKER-JACKSON, an Individual, Plaintiff, v. SMITH'S FOOD AND DRUG CENTERS, INC., d/b/a SMITH'S FOODS, a Foreign Corporation; DOES 1 through 25, inclusive; and ROE CORPORATIONS 1 through 25, inclusive, Defendants.

No. 2:21-cv-2066-ART-BNW

United States District Court, D. Nevada

May 23, 2023

ORDER

ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Smith Food & Drug Centers, Inc. (“Smith's”) Motion for Summary Judgment. (ECF No. 26).

Plaintiff Karen Walker-Jackson (“Walker-Jackson”) brings claims of sexual harassment, and negligent hiring, training and supervision against Smith's under Title VII 42 U.S.C § 2000e et seq. and NRS 613.330. (Compl.; ECF No. 12). Smith's moves for summary judgment on all claims. Walker-Jackson conceded her retaliation claim in her Response to Smith's Motion for Summary Judgment. (ECF No 29 at 16). The Court therefore considers Walker-Jackson's sexual harassment and negligent hiring claims.

For the reasons discussed herein, the Court grants-in-part and denies-in-part Smith's Motion.

I. BACKGROUND

Walker-Jackson was hired by Smith's in February, 2007. (Id. ¶9).

Walker-Jackson began working at Store 319 in July, 2018. (ECF No. 26 at 4). David Robson (“Robson”), a Wine Steward, also worked at Store 319. (Id.)

Robson worked in the wine and alcohol section, about four aisles away from where Walker-Jackson worked, but routinely came near Walker-Jackson's workarea to check out customers' liquor and retrieve expensive liquor from the cabinet located near the checkout registers. (ECF No. 26 at 4). Robson would also “wander around” at the front of the store pushing a shopping cart without an apparent business reason for being at the front of the store. (ECF No. 26-1 Ex. 2 at 56:12-25).^[1]

In July 2018, about a week after Walker-Jackson began working at Store 319, Robson began initiating sexual advances towards Walker-Jackson. (ECF No. 1-2 ¶10). Robson called Walker-Jackson “sweet baby angel,” an interaction that Walker-Jackson found “creepy.” (ECF No. 26 at 5 n.19). Robson repeated these phrases to Walker-Jackson weekly. (Id.)

In November or December 2018, Robson touched Walker-Jackson's neck with his finger and said, “I would like to bite you there.” (ECF No. 26 at 5 n.21). Walker-Jackson reported Robson's verbal advances and the neck-touching incident to Smith's HR representative Shelia Chapman (“Chapman”) that day or the next day. (ECF No. 26-1 Ex. 2 at 40:1-25, 45:9-10). Walker-Jackson asked Chapman to define sexual harassment for her, and subsequently described Robson's conduct to Chapman as sexual harassment. (Id. at 40:10-13). Walker-Jackson told Chapman that she wanted the behavior to stop. (Id. at 44:1-3). Chapman told Walker-Jackson that Robson was “just creepy Dave,” and told Walker-Jackson to “not do anything.” (Id. at 41:3-9). No report was documented by Smith's Human Resources Department regarding this incident, and no disciplinary action was taken against Robson in response to this complaint. (Id. at 40:1-25). According to Robert Day (“Day”), Smith's 30(b)(6) witness, reports of sexual harassment made to store managers are not routinely documented at Smith's. (ECF No. 29 Ex. 1 at 33:5-8).

Walker-Jackson sought transfer to another store due to Robson's advances. (ECF Nos. 29 at 8; 26-1 Ex. 2 at 42:12-25). Walker-Jackson told another Smith's employee, Kyle Spicer (“Spicer”), about Robson's advances. (ECF No. 26-1 Ex. 2 at 39:6-15). Spicer told Walker-Jackson he would help her transfer to another store. (Id.) On January 13th, 2019, Walker-Jackson transferred from Store 319 to Store 366. (ECF No. 26 at 5 n.27).

On August 4, 2019, Robson also began working at Store 366. (ECF No. 26 at 5). The same day, Robson hugged Walker-Jackson and said “let's let people talk.” (ECF No. 26 at 6 n.30). In response, Walker-Jackson said “eww, stop, get away.” (Id.) Walker-Jackson verbally reported this hug incident to Spicer. (ECF No. 26-1 Ex. 2 at 64:19-25).

Robson immediately resumed his verbal sexual advances towards Walker-Jackson, which occurred almost daily at Store 366. (Id. at 66:4). Walker-Jackson reported these verbal advances to three customer service managers on separate occasions. (Id. at 66:5-9). Walker-Jackson testified that Smith's customer service managers found Robson's behavior “funny.” At least one customer service manager “laughed about it and said; oh, here comes your boyfriend” when Walker-Jackson reported Robson's advances and told the customer service managers she did not like Robson's behavior. (Id. at 67:11-16).

On September 21, 2019, Robson asked Walker-Jackson if she was “as single as [I] think you are” or “as single as I want you to be” while bagging groceries for a customer. (ECF Nos. 26 at 5 n.32; 26-1 Ex. 5 at 1; 26-1 Ex. 2 at 69:6-7). Walker-Jackson responded that she was married and showed Robson her wedding ring. (ECF No. 26-1 Ex. 2 at 69:7-8).

On September 26, 2019, Robson grabbed Walker-Jackson and kissed her on the cheek in the checkout area of Store 366. (ECF No. 26-1 at 72:3-14). Later that day, Walker-Jackson told her supervisor, Kathy Dicosta (“Dicosta”) about Robson's forceful kiss, and other interactions with Robson. (Id. at 82:8-12). Dicosta asked Walker-Jackson if she “yelled at him to stop” when Robson forcibly kissed Walker-Jackson in the checkout area. (Id at 82:12-15). Dicosta took Walker-Jackson to see Dicosta's supervisor, Danny Sebron (“Sebron”). Sebron and or Dicosta told Walker-Jackson to write a statement. (ECF No. 26-1 Ex. 2 at 83:16-24; 86:13-20).

On September 26 or 27, 2019, Walker-Jackson submitted a written statement describing her treatment by Robson. (ECF Nos. 26 at 7 n.43; 1-2 ¶17). In it, Walker-Jackson recounts the “single as I think you are” on September 21 and the kiss incident on September 26. (ECF No. 26-1 Ex. 5 at 1). Walker-Jackson noted that she had “told my front-end management about the touching and endearments he does (sweet angel, babygirl) and have now gotten upper management involved.” (Id.) Walker-Jackson explained that she avoided Robson at work, would only “return to her area when he leaves” and explained that she did “not appreciate or welcome his endearments or his touching my person as I feel threatened.” (Id. at 2).

On September 27, 2019, Robson walked behind Walker-Jackson in the computer room where offices were in Store 366. (ECF No. 26 at 7 n.39). Robson began massaging Walker-Jackson's shoulders. (Id.) Walker-Jackson told Robson to stop touching her, but he continued. (Id.) Walker-Jackson stood up, pushing the chair into Robson, and told him to never touch her again. (Id.)

On September 30, 2019, Smith's issued a written warning to Robson, which he signed. (ECF No. 26-1 Ex. 6). The “reason for warning” was that Robson “violated the sexual harassment and other forms of harassment policy that was put in place.” The warning required Robson to redo training pertaining to the harassment policy and re-read and sign the policy before his next working shift.

(Id.) The warning noted that “any further violation pertaining to this policy will result in immediate termination of employment any retaliation towards any employee or employees involved will also result in termination of employment.” (Id.)

On or around September 30, 2019, Sebron told Robson that Walker-Jackson had been the one who reported his behavior. (ECF No. 26-1 Ex. 2 at 91:21-22). Walker-Jackson understood that her complaint would be anonymous. (Id. at 96:23-24). Walker-Jackson reported Robson's behavior to a hotline Smith's provided for reporting sexual harassment after she learned that Robson was not punished beyond a written warning and that Sebron revealed to Robson that Walker-Jackson reported his behavior. (Id. at 131:17-25).

Spicer offered to transfer Walker-Jackson to another store. (Id. at 96:11-13, 97:13-17). Walker-Jackson refused, perceiving such a transfer to be a punishment. (Id.) Spicer offered to move Walker-Jackson to a later shift, but Walker-Jackson refused and inquired why Robson's hours would not be moved instead. (Id. at 98:1-12).

On October 8, 2019, Walker-Jackson filed another complaint against Robson with Smith's Human Resources Department. (ECF Nos. 1-2 ¶21; 26-1 Ex. 7). She explained “[s]ince my initial complaint against [Robson] the following issues have been happening since he was told I was his accuser: his presence in or near my work area more often, although no verbal exchange, just walking past me. Also when I have glanced around I've noticed a few times he's been in or around my work area, he's standing there staring (glaring) at me. It's enough that other associates have noticed and have mentioned it. I feel his actions are intimidating and hostile. S.D. Danny [Sebron] addressed [the] issue of him coming on frontend Monday October 7th and I was relieved at the intervention. This is a second written complaint I felt needed to be documented.” (ECF No. 26-1 Ex. 7).

Two of Walker-Jackson's coworkers wrote notes to Smith's explaining that they had “seen David . . . walk past [Walker-Jackson] with a glare” and “walk by her when he didn't need to in a way that seemed like he was trying to intimidate her.” (ECF No. 29 Ex. 7).

Walker-Jackson testified that Robson glared at Walker-Jackson while she was working nearly every day in late 2019 and throughout 2020 until Robson was suspended. (ECF No. 26-1 Ex. 2 at 114:21-25). Walker-Jackson verbally reported Robson's glaring and hostile behavior to Spicer twice and Sebron once after submitting her October 8, 2019 complaint. (Id. at 117:9-21). When Walker-Jackson verbally reported Robson's behavior to Sebron he yelled at her and asked her what she wanted him to do. (Id. at 118:9-14).

Walker-Jackson filed her EEOC Charge in...