Dye v. BNSF Railway Company
ORDER granting 39 Motion for Summary Judgment; finding as moot 42 Motion for Sanctions. Signed by Magistrate Judge Carolyn S Ostby on 2/8/2016. (JDR, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ORDER GRANTING BNSF’S
BNSF RAILWAY COMPANY, a
After Plaintiff S. Dye (“Dye”) was discharged from her job with
Defendant BNSF Railway Company (“BNSF”), she filed this action in
state court asserting four claims under Montana law: (1) quid pro quo
sexual harassment; (2) negligent supervision; (3) negligent infliction of
emotional distress; and (4) defamation. Cmplt. (ECF No. 4) at 4-5.1
On November 21, 2014, BNSF removed the matter to this Court
asserting diversity jurisdiction under 28 U.S.C. § 1332. Notice of
Removal (ECF No. 1) at 1-5. On December 15, 2014, upon the parties’
“ECF No.” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3. References to page numbers are to those assigned by ECF.
written consent, this case was assigned to the undersigned for all
proceedings. Notice of Assignment (ECF No. 12).
Two motions are pending. First, BNSF moves for summary
judgment on all claims. BNSF’s Summary Judgment Mtn. (ECF No.
39). Dye does not resist summary judgment in BNSF’s favor on any
claims except her quid pro quo sexual harassment claim. See Dye’s
Resp. Br. (ECF No. 46) at 18-19 (conceding that she “does not dispute
the issues raised in [BNSF’s] motion” specific to her claims for
negligent supervision, negligent infliction of emotional distress, and
Second, BNSF moves for sanctions – specifically dismissal of this
action – for Dye’s alleged failure to provide her psychological treatment
records as previously ordered by the Court. BNSF’s Mtn. for Sanctions
(ECF No. 42). Dye resists this motion and argues that dismissal is not
warranted. Dye’s Resp. to Sanctions Mtn. (ECF No. 45).
Having considered the record and the parties’ arguments, the
Court will grant BNSF’s summary judgment motion for the reasons
discussed below. Because of this conclusion, BNSF’s motion for
sanctions is moot.
For reasons not apparent in the record, Dye filed a Statement of
Undisputed Facts in response to BNSF’s motion rather than a
Statement of Disputed Facts as required by Local Rule 56.1(b). See
ECF No. 47. Local Rule 56.1(d) provides, in relevant part, that a
“[f]ailure to file a Statement of Disputed Facts will be deemed an
admission that no material facts are in dispute.” Even without
application of Local Rule 56.1(d), however, the Court, after reviewing
the record, concludes that no genuine issues of material fact exist that
would preclude summary judgment in BNSF’s favor on Dye’s quid pro
The facts that follow are undisputed unless otherwise noted:2
On January 17, 2011, BNSF hired Dye. She worked as a
conductor trainee and conductor at BNSF’s Glendive, Montana,
Consistent with summary judgment standards discussed below,
the following facts are taken from the materials of record. The Court
views the facts and inferences from them in the light most favorable to
Dye as the non-moving party. Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 474 U.S. 574, 587-88 (1986); Betz v. Trainer
Worthham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007). Because
Dye resists BNSF’s motion only to the extent it is directed at her quid
pro quo claim, the Court has limited this description of background
facts to those relevant to that claim.
location. As a conductor in Glendive, BNSF employee Glen Greer
(“Greer”) at times had supervisory responsibility over Dye, although
her primary supervisor was Troy Brewer, another BNSF management
In a one-year period – from March 19, 2012, to March 18, 2013 –
Dye was disciplined eight separate times: she received (1) four separate
violations for failing to comply with BNSF’s Attendance Guidelines;
and (2) four separate violations for either laying off on call or missing a
call altogether. On March 18, 2013, as the sole result of these reported
rule violations, BNSF dismissed Dye from her employment. Dye does
not challenge her discharge from employment as part of this lawsuit.
In early 2013, Dye and Greer had a brief, consensual, physical
relationship. The relationship began on or about February 23, 2013,
when Dye and Greer first had sexual relations. That day was the date
of a retirement party for a fellow BNSF coworker, Al Koncylias. Before
the retirement party, Greer had not made any promises or requests
from Dye about her job, nor did Dye feel that Greer was romantically
interested in her.
On February 23, 2013, Greer told Dye via text message that he
was excited to get a beer after work and invited her to come to the
coworker’s retirement party in Miles City. Dye informed Greer that
she did not have any vacation days and that she was on call that night.
Greer informed Dye that he could approve a vacation day. Dye then
put in for a vacation day and Greer approved it.
Dye states that she did not put in for the vacation day so she
could attend the retirement party. Instead, she put in the request
“[b]ecause a supervisor said he would approve a vacation day, and I was
going to take it.” Dye Deposition (ECF 41-1) at 9. Dye then traveled to
Miles City, not to go to the retirement party, but to see her friend who
lived there. The drive from Glendive to Miles City was approximately
Both before and during her travel to Miles City, as well as upon
Dye’s arrival there, Dye and Greer exchanged multiple text messages.
In them, Dye repeatedly expressed reluctance to go to the party
because: (1) there would be people there who she did not know; (2) she
could not find anyone to go with her; (3) she would be just sitting there
if she went; (4) she would feel out of place; (5) she hated to walk into
bars alone; (6) she did not like to do stuff like that alone; (7) she was
not drunk enough to go in some place she did not know; (8) she had
never been in the bar where the retirement party was being held; and
(9) she did not know anyone in Miles City who could go with her. See
ECF 41-3 at 51-55.
Greer responded by: (1) repeatedly asking Dye to go to the
retirement party; (2) telling her it would be a “calm deal” and “fun”; (3)
offering to buy drinks; (4) telling her she would know him at the party;
(5) telling her the other people at the party would go home early; and
(6) offering to go out and walk her into the bar so that she would not
have to go in the bar alone. Id.
Ultimately, Dye arrived at the party at the bar. Koncylias, Greer,
and another railroader named “Dave” were present. When the party
winded down, Dye, Greer, and Dave walked to two other bars. Dye
admits that she willingly walked to the other bars with Greer and Dave
because they “were all just hanging out.”
After bar hopping, Dye was giving Greer a ride home when,
according to Dye, Greer told her that he would help her out if she
helped him out. Dye alleges that she believes that Greer meant that he
would help her save her job in exchange for Dye having sex with him.
Dye and Greer then went to Dye’s hotel room where they
proceeded to have sex. Dye alleges that, later that morning when she
was dropping Greer off, he told her that he would write Dye a letter to
help her maintain her employment with BNSF.
In text messages sent between Dye and Greer two days later – on
February 25, 2013 – Dye told Greer that she “definitely had fun” with
him in Miles City and that she was “more than okay to do it again.”
Dye’s grandfather passed away on February 13, 2013. Later that
month, after being told by her supervisor, Brewer, that she could not
take time off to attend her grandfather’s funeral, Dye went to Greer
and asked him because “[she] figured if [she] was giving him what he
wanted, that he could give [her] what [she] wanted.” After receiving a
text message from Greer indicating that he would approve the days off,
Dye texted back that he was “the best” and that “maybe [they] could
hook up before [she] leave[s], parentheses, fingers crossed with a smiley
face.” Dye said this to Greer because she wanted to “mak[e] sure he
would approve [the days off] by . . . flirting with him” and suggesting
that they have sex again.
Following the February 23 retirement party, Dye and Greer
exchanged extensive sexually-explicit text messages, many of a highly
graphic nature.3 The messages were exchanged between February 24,
2013, and March 21, 2013. Dye alleges that some of the text messages
were not sent by her, but from her phone by her friend, Abby Wilcox.
Dye noted Wilcox is uncertain which text messages she physically sent,
but said that she “either sent or contributed to the content in the
messages sent” on March 8, 2013. Dye also sent Greer two naked
pictures of herself.
Even after Greer’s alleged agreement to assist Dye with saving
her job, Dye, on more than one occasion, sent text messages to Greer
indicating that she believed she was going to be fired. For example, at
one point, Dye told Greer, “I guess I’ll probably be fired. That sucks,
but I will just move back to Washington.” She also told him, “I would
hate to be fired, but I should have pulled it together a year ago.”
Ultimately, Dye told Greer that she will either move to Washington or
go back to school for nursing, and that she appreciated that he tried.
Dye says that she sent Greer these text messages referencing what she
believed to be her impending termination to “get him to try harder.”
Dye also explained that she “was trying to get him interested again,”
A spreadsheet of the text messages is part of the record. ECF
No. 41-3 at 1-55. Thus, the Court will not repeat their content here.
both in her and in trying to save her job. By continuing to text Greer,
Dye was trying to do whatever it took to save her job, including having
sex with Greer again.
Toward the end of their relationship, Dye told Greer by text
message that they “should have made a better effort” and that “her
apartment is only two blocks from the depot.” Greer responded by
saying that they should be having sex “at least every other day,” to
which Dye said that she thinks about him like crazy and that she
“would take any minute to be with [him].”
On March 18, 2013, Dye was dismissed from her employment
with BNSF. Dye has stipulated that the termination resulted solely
from her rule violations noted above. ECF 19 at 2.
On or about March 21, 2013, Dye and Greer had sex, at Dye’s
apartment, for a second and final time. Dye agrees that following her
termination Greer did not “promise [her] anything[.]” Dye picked Greer
up from a separate location and drove him back to her apartment,
knowing that the two would engage in sexual activity. Dye drove Greer
back to his vehicle after their rendezvous.
Dye believes that throughout this time she and Greer were
texting one another and engaging in sexual activity, Greer was using
her and she was also using him.
Dye did not report to any BNSF supervisor or human resources
department personnel that she had engaged in sexual activity with
Greer and/or took part in a texting relationship with Greer until after
her employment with BNSF was terminated. BNSF first became
aware of a relationship between Dye and Greer on or about April 8,
2013, when Dye contacted BNSF’s Montana Division Human Resources
Director, Andrew Shelton, alleging that Greer had sent her
inappropriate text messages and that the two of them had been
involved in an intimate relationship.
Greer was terminated from his employment as a BNSF
management employee on June 6, 2013, for “carrying on the
relationship with Dye in violation of BNSF’s Code of Conduct.” ECF
No. 41-7 at 4.
III. The Parties’ Arguments
BNSF argues that there are no genuine issues of material fact
and that it is entitled to summary judgment on Dye’s quid pro quo
sexual harassment claim. BNSF’s Opening Br. (ECF No. 40) at 14-21.
It advances two principal arguments.
First, BNSF argues that Dye’s consensual relationship with Greer
was not “unwelcome” as required for an actionable sexual harassment
claim. Id. at 14-16. BNSF argues that Dye’s conduct, even when
viewed in the light most favorable to her, cannot reasonably be viewed
as supporting a conclusion that Greer’s actions were unwelcome. Id. at
Second, and in the alternative to its first argument, BNSF
maintains that it is entitled to summary judgment because it exercised
reasonable care to prevent and promptly correct any sexual harassment
that may have occurred. Id. at 21-27. And, it argues, Dye
unreasonably failed to avail herself of BNSF’s preventive or corrective
opportunities by not reporting her relationship with Greer to any BNSF
supervisor or human resources representative until after her March 18,
2013 dismissal from BNSF. Id.
In response, Dye argues that the relationship between her and
Greer was “unwelcome.” Dye’s Resp. Br. (ECF No. 46) at 15. She
argues that she stated in multiple text messages to Greer that she did
not want to attend the retirement party on February 23, 2013, but that
Greer “kept pressuring [her] to attend, even going so far as to
repeatedly offer to buy [her] drinks if [she] went to the retirement
party.” Id. Dye maintains that “[a]fter many drinks, [she] agreed to
have sexual relations with Greer in exchange for Greer’s help to keep
[her] employment.” Id. at 16. She argues that she “continued to text
provocative messages to Greer in the hopes that he would keep up his
end of the bargain.” Id. And, Dye argues, after her termination from
BNSF, she was desperate to keep her job, so again had sex with Greer
because of promises that he would write a letter on her behalf to appeal
her termination. Id.
Second, Dye argues that BNSF is not entitled to summary
judgment because it did not exercise reasonable care to prevent and
promptly correct any sexual harassment. Id. at 17. She argues that if
Greer had been properly trained and supervised, he would not have
engaged in quid pro quo harassment by offering to help her keep her
job in exchange for sex with him. Id. And, Dye argues, she did report
the harassment in March 2013, but that BNSF’s Code of Conduct does
not indicate a time frame for reporting harassment. Id. at 18.
In reply, BNSF argues that it is entitled to summary judgment on
Dye’s quid pro quo sexual harassment claim because: (1) Dye’s response
to BNSF’s summary judgment motion was untimely, she did not seek
an extension of time to file, she has not shown excusable neglect for her
late filing, and BNSF has been prejudiced by the delay, BNSF’s Reply
Br. (ECF No. 51) at 2-4; (2) Dye has failed to raise any genuine issues of
material fact about her relationship with Greer not being “unwelcome,”
id. at 4-8; and (3) BNSF has established, and Dye is unable to refute,
that BNSF exercised reasonable care to prevent and correct promptly
the alleged harassing behavior, and Dye failed to avail herself of the
preventive and corrective opportunities BNSF provided, id. at 10-14.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.
If the moving party meets its initial responsibility, the burden then
shifts to the opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
The purpose of summary judgment is to pierce the pleadings and
to assess the proof in order to see whether there is a genuine need for
trial. Id. at 587 (quotation omitted). In resolving a summary judgment
motion, the evidence of the opposing party is to be believed, Anderson,
477 U.S. at 255, and all reasonable inferences that may be drawn from
the facts placed before the Court must be drawn in favor of the
opposing party, Matsushita, 475 U.S. at 587 (citation omitted).
The Montana Human Rights Act (“MHRA”) prohibits employment
discrimination based on sex. See MCA § 49-2-303(1). Sexual
harassment is sexual discrimination under the MHRA. Harrison v.
Chance, 797 P.2d 200, 204 (Mont. 1990) (citing Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 64 (1986)). The type of discrimination
claim alleged in this action – quid pro quo sexual harassment – is
cognizable under the MHRA. Williams v. Joe Lowther Ins. Agency, Inc.,
117 P.3d 1018, 1024 (Mont. 2008) (citing Campbell v. Garden City
Plumbing and Heating, 97 P.3d 546, 550 (Mont. 2004)).
In resolving sex discrimination claims, Montana courts are to look
both to Montana’s “body of case law and the federal guidelines” on
sexual harassment. Williams, 177 P.3d at 1025 (citing Savino v. C.P.
Hall Co., 988 F.Supp. 1171, 1181 (N.D. Ill. 1997) (on “the quid pro quo
question . . . the [Supreme] Court [has] noted that the E.E.O.C.’s
Guidelines on Sexual Harassment ‘constitute a body of experience and
informed judgment to which courts and litigants may properly resort
for guidance.’”). And, because Montana modeled the MHRA after Title
VII of the Civil Rights Act of 1964, Montana courts often refer to
federal case law when construing the MHRA. See Puskas v. Pine Hills
Youth Correctional Facility, 307 P.3d 298, 303 (Mont. 2013); StringerAltmaier v. Haffner, 138 P.3d 419, 422 (Mont. 2006).
As noted in Williams, supra, the federal regulations define
actionable sexual harassment like that alleged in this action as follows:
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature
constitute sexual harassment when (1) submission to such
conduct is made either explicitly or implicitly a term or
condition of an individual’s employment, [and] (2)
submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such
Williams, 177 P.3d at 1024 (quoting 29 C.F.R. § 1604.11(a)).
“The gravamen of any sexual harassment claim is that the alleged
sexual advances were ‘unwelcome.’” Meritor, 477 U.S. at 68 (quoting 29
CFR § 1604.11(a)). Generally, the question whether particular conduct
was unwelcome presents difficult problems of proof and turns largely
on credibility determinations committed to the trier of fact. Id. But, as
noted above and pertinent to this motion, “if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law[,]” the Court must grant
summary judgment. Fed. R. Civ. P. 56(a). In considering the question
whether sexual advances were unwelcome, “[t]he correct inquiry is
whether [plaintiff] by her conduct indicated that the alleged sexual
advances were unwelcome, not whether her actual participation in
sexual intercourse was voluntary.” Meritor, 477 U.S. at 68.
Here, as noted, Dye alleges that summary judgment is not
warranted because her conduct supports a showing of an “unwelcome”
relationship with Greer. ECF No. 46 at 15-16. Dye argues that: (1)
after Greer invited her to their co-worker’s retirement party, she told
him that she was unable to go because she was on call for work; (2)
Greer offered to approve a vacation day for her and then did so; (3) she
stated in multiple text messages that she did not want to go to the
retirement party because she did not have anyone to go with her; (4)
Greer pressured her to attend, even offering to buy drinks if she did; (5)
she continued to refuse to go to the retirement party by stating that she
was staying home or would return home; (6) Greer continued to coax
her into meeting him at the bar; and (7) Greer even went out to the
bar’s parking lot to walk her in when the thought of going into the bar
alone was “freaking [her] out.” ECF No. 46 at 15. She argues that,
“[a]fter many drinks, [she] agreed to have sexual relations with Greer
in exchange for Greer’s help to keep [her] employment . . . [and]
continued to text provocative messages to Greer in the hopes that he
would keep up his end of the bargain.” Id. at 16. Finally, Dye argues,
after her termination from BNSF, she was “desperate to keep her job,
[so] again had sex with Greer because of promises that he would write a
letter on [her] behalf for purposes of her appeal of her termination.” Id.
The Court concludes, however, that Dye has failed to present
evidence from which a reasonable juror could conclude that Greer’s
sexual advances were “unwelcome.” Rather, evidence of Dye’s own
conduct indicates that she not only welcomed Greer’s sexual advances,
but also sought them out and encouraged them. Thus, she cannot
maintain a quid pro quo sexual harassment claim. Meritor, 477 U.S. at
First, Dye’s hesitation to go to the retirement party does not raise
a genuine issue of material fact respecting her claim. Dye concedes
that she and Greer had a “brief, consensual, physical relationship.”
ECF No. 47 at ¶ 5. Greer’s alleged offer to help her with her problems
at work and their consensual sexual relationship did not begin until
later in the evening – hours after the retirement party and immediately
before they engaged in sex. There is no evidence, and no allegation
from Dye, that Greer made any promises or requests of Dye before the
And her hesitancy in going to the party, according to the express
language in her text messages, was not because of Greer and any
unwelcome sexual advances. Rather, it was because: (1) there would be
people there who she did not know; (2) she could not find anyone to go
with her; (3) she would be just sitting there if she went; (4) she would
feel out of place; (5) she hated to walk into bars alone; (6) she did not
like to do stuff like that alone; (7) she was not drunk enough to go in
some place she did not know; (8) she had never been in the bar where
the retirement party was being held; and (9) she did not know anyone
in Miles City who could go with her. See ECF 41-3 at 51-55. Thus,
Dye’s hesitancy in attending the party has no reasonable nexus to her
allegations of quid pro quo harassment that she claims occurred after
Second, the evidence of record, including Dye’s own admissions
and testimony, demonstrates that she not only welcomed Greer’s sexual
advances, but also sought them out and encouraged them. For
example, Dye stipulates that her relationship with Greer was
“consensual.” ECF No. 17 at ¶ 6. She told Greer on a number of
occasions before the retirement party that she was interested in him.
ECF No. 41-1 at 16 (depo. at 116; ll. 13-17). She chose to attend the
coworker’s retirement party in Miles City on February 23, 2013, at
Greer’s invitation, id. at 10 (depo. at 90, ll. 5-11), and brought Greer
back to her hotel room without objection, where they had sex. Id. at 12
(depo. at 101, ll. 8-11; 103, ll. 1-8; 106, ll. 21-23; 108, ll. 11-16). She
gave Greer a ride home later that morning, exchanged text messages
with him two days later, and told Greer that she “definitely had fun,”
“enjoyed [her] night,” and was “more than okay to do it again.” Id. at
15 (depo. at 109, ll. 19-23); ECF No. 41-3 at 50. Dye exchanged,
without any objection, extensive, graphic, sexually-charged text
messages with Greer for weeks following their February 23 rendezvous.
ECF No. 41-3 at 1-55. She never objected, never asked him to stop, and
never indicated that the messages were unwelcome when Greer sent
her sexually explicit text messages, but rather responded with approval
and encouragement. Id. In addition to sending Greer several sexuallyexplicit text messages describing the type of sex she wanted to engage
in with him, Dye also sent Greer two naked pictures of herself. ECF
No. 41-1 (depo. at 80, ll. 23-25; 81, ll. 1-22). After her March 18
dismissal from employment, she repeatedly told Greer that she wanted
to meet to have sex with him. She drove to pick him up, had sex with
him, dropped him back off at his car, and sent him a text message the
next day telling him that she had fun the day before. ECF No. 41-1 at
24 (depo. at 146,ll. 9-25; 147, ll. 1-4); ECF No. 46 at 10-11. She has
admitted that her relationship with Greer was welcome because they
were using each other to get what they wanted, which for her meant
Greer’s approval of her request for time off after her other supervisor
had denied her request, and Greer’s help in trying to save her job in
light of her eight rules violations in a one-year period. ECF No. 41-1
(depo. at 147, ll. 12-20). Furthermore, Dye expected that she would be
dismissed, telling Greer that she would either move to Washington or
go to nursing school and telling him that she appreciated that he had
tried to help her. ECF No. 46 at 10. Dye sent the text messages to
Greer to try to “get him to try harder” because she “was trying to get
him interested again,” both in her and in trying to save her job. Id.
Dye argues that, by continuing to text Greer, she “was trying to do
whatever it took to save her job, including having sex with Greer
again.” Id. She never asked Greer to stop texting or having a
relationship with her, and never reported to any BNSF supervisor or
human resources department personnel that she was experiencing any
unwelcome attention from Greer until after she was dismissed from
employment. Id. at 11-12.
From the foregoing and other evidence of record viewed in its
totality, the Court concludes that Dye has failed to raise any genuine
issue of material fact respecting whether her sexual interactions with
Greer were unwelcome. On the current record, it cannot reasonably be
disputed that Dye’s interactions with Greer were welcomed and indeed
encouraged. See, e.g., Zhao v. Kaleida Health, 2008 WL 346205 (W.D.
N.Y. Feb.7, 2008) (dismissing on summary judgment plaintiff’s claim of
a hostile work environment alleging a series of sexual advances
culminating in sexual assault in light of emails demonstrating that
sexual conduct by defendant was welcome).
As noted, Dye: (1) concedes their sexual interactions were
consensual; (2) acknowledges that she was interested in Greer even
before the retirement party after which they first engaged in sexual
activities; (3) admits that she was using Greer to get what she wanted
as much as he was using her; (4) expressly acknowledges that she was
actively trying to get and keep him interested in her; and (5) admits
that she had sex with him even after BNSF discharged her from her
employment. Such conduct is inconsistent with Dye’s allegations of
unwelcome sexual advances from Greer. The uncontroverted evidence
instead shows conclusively that Dye welcomed and actively pursued
Under the undisputed facts, no reasonable juror could conclude
that Dye was subjected to unwelcome sexual advances. Thus, she
cannot maintain a quid pro quo sexual harassment claim, and
summary judgment in BNSF’s favor is appropriate.
Furthermore, even if Dye had raised genuine issues of material
fact sufficient to withstand BNSF’s summary judgment motion, her
claim fails for an alternative reason. BNSF asserted in its Answer the
so-called Ellerth-Faragher affirmative defense. See BNSF’s Answer
(ECF No. 6) at ¶ 35; see also Burlington Indus., Inc. v. Ellerth, 524 U.S.
742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). It
provides that, if an employee has made out a prima facie case of sexual
harassment, an employer is vicariously liable unless it demonstrates
entitlement to this affirmative defense by satisfying two elements: (1)
“the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior”; and (2) the “employee
unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise.”
Faragher, 524 U.S. at 807; see also Stringer-Altmaier v. Haffner, 138
P.3d 419, ¶ 26 (Mont. 2006). Generally, these are fact-intensive
determinations that a jury must make.
Here, the undisputed facts show that BNSF has satisfied the
affirmative defense as a matter of law. Respecting the first element, it
is undisputed that BNSF had an anti-harassment policy – its
Workplace Harassment Policy. It included definitions, information
about where to report violations, and information concerning
enforcement of the policy. See ECF No. 41-7 at 52-54. Both Dye and
Greer had received training on BNSF’s EEO Policy and Workplace
Harassment Policy in 2011. Id. at 2-3. When Dye reported Greer’s
alleged harassment about three weeks after she had been discharged
from employment, BNSF promptly scheduled an interview with her,
but her attorney cancelled the meeting. See Declaration of Andrew
Shelton, BNSF’s Human Resources Director for its Montana Division
(ECF No. 41-7 at 3, ¶ 7). BNSF also contacted Greer, who
acknowledged his consensual relationship with Dye. As noted, BNSF
subsequently terminated Greer’s employment as a BNSF management
employee on June 6, 2013, for his involvement with Dye in violation of
BNSF’s Code of Conduct. Id. at ¶ 8. From this undisputed evidence,
the Court concludes that BNSF exercised reasonable care to prevent
and correct promptly any sexually harassing behavior. See, e.g., Kohler
v. Inter-Tel Technologies, 244 F.3d 1167, 1181-82 (9th Cir. 2001)
(upholding summary judgment for employer even given plaintiff’s
sexual harassment allegations because employer’s anti-harassment
policy established that employer exercised reasonable care to prevent
Respecting the second element of the Ellerth-Faragher affirmative
defense, the record demonstrates that Dye received the training in
January 2011 that included the Workplace Harassment Policy. See
Shelton Declaration (ECF No. 41-7 at 2, ¶ 5 and ECF 41-7 at 58). In
addition to defining quid pro quo sexual harassment, paragraph 5 of
the policy provides:
Employees are required to report harassment immediately.
Any employee who believes that a supervisor’s, another
employee’s, or a non-employee’s actions or words constitute
harassment has a responsibility to report or complain about
the situation as soon as possible. Such report or complaint
should be made to the employee’s supervisor, Human
Resources, the Office of Corporate Diversity, or the
Employee Hotline at 1-800-533-BNSF.
Id. at 53 (emphasis added).
Although Dye had received training respecting the type of
harassment she alleges she endured and information about when and
to whom to report such treatment, it is undisputed that she did not
report Greer’s alleged harassment “immediately” pursuant to the policy
or even while she still worked for BNSF. Rather, she reported it about
three weeks after BNSF terminated her employment. See ECF 41-1 at
21 (depo. at 135, ll. 20-25; 136, ll. 1-5). From this evidence, the Court
concludes that Dye failed to avail herself of any preventative or
corrective opportunities provided by BNSF, and has offered no
legitimate reason for her failure to do so. Faragher, 524 U.S. at 807;
see also Stringer-Altmaier v. Haffner, 138 P.3d 419, ¶ 26 (Mont. 2006).
Thus, the Court concludes that BNSF has satisfied the second element
of the affirmative defense.
In light of the foregoing, the Court concludes that, even if Dye had
presented evidence creating genuine issues of material fact sufficient to
withstand BNSF’s summary judgment motion, which she did not, her
claim nevertheless fails because BNSF has demonstrated, under these
facts, that it is entitled to the Ellerth-Faragher affirmative defense.
In reaching this conclusion, the Court is not persuaded by Dye’s
arguments in opposition to BNSF’s assertion of the affirmative defense.
As an initial matter, Dye does not dispute availability of this defense
provided BNSF satisfies both elements. And in responding to BNSF’s
motion, Dye does not dispute that she was trained on BNSF’s antiharassment policies, including the ways in which employees can report
harassment. ECF No. 46 at 17-18. But Dye persists in her position
that BNSF cannot satisfy either element of the affirmative defense.
First, Dye argues that BNSF must not have properly exercised
reasonable care to prevent Greer’s actions because his actions, in fact,
occurred. Id. Second, she argues that BNSF’s policy that addresses
reporting sexual harassment does not indicate any time frame for
reporting such harassment. Because she reported Greer’s alleged
harassment in March 2013, she argues, she did take advantage of
BNSF’s corrective opportunities. Id. at 18. The Court is not persuaded.
Respecting Dye’s first argument, a party is not foreclosed from
relying on the Ellerth-Faragher affirmative defense on the basis that
harassment occurred. Rather, courts applying the defense examine the
defendant employer’s anti-harassment policies and procedures precisely
because harassment allegedly did occur. See Kohler, supra. The
Court, therefore, rejects Dye’s first argument.
Respecting Dye’s second argument, as noted above, undisputed
evidence of record shows that Dye underwent training on January 19,
2011, that included training on BNSF’s Workplace Harassment Policy
and BNSF’s Employee Hotline, which includes a telephone number for
reporting alleged violations. See Shelton Declaration (ECF No. 41-7 at
1-4). As already discussed, the policy states that employees “are
required to report harassment immediately.” Id. at 53. In light of this
undisputed evidence, Dye’s argument that the policy contains no time
frame for reporting harassment is unpersuasive.
For all of the foregoing reasons, the Court concludes that no
genuine issues of material fact exist and that BNSF is entitled to
summary judgment on Dye’s quid pro quo sexual harassment claim.
Because of this conclusion, the Court finds it unnecessary to address
BNSF’s other arguments supporting its motion.
Based on the foregoing, IT IS ORDERED that BNSF’s summary
judgment motion (ECF No. 39) is GRANTED in its entirety. In light of
IT IS FURTHER ORDERED that BNSF’s motion for sanctions –
specifically dismissal of this action – for Dye’s alleged failure to
provided her psychological treatment records as previously ordered by
the Court (ECF No. 42) is MOOT.
The Clerk of Court shall enter Judgment accordingly, and close
DATED this 8th day of February, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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