Christian v. Umpqua Bank

Filing 63

Opinion and Order. The Court GRANTS Defendants' Motion (# 49 ) for Summary Judgment and, accordingly, DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 5/22/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
JENNIFER CHRISTIAN, formerly
known as JENNIFER HAVEMAN,
Plaintiff,

3:16-cv-01938-BR
OPINION AND ORDER

v.
UMPQUA BANK, an Oregon-forProfit Banking Institution,
Defendant.
CRYSTAL M. LEWIS
March, Higgins, Beaty & Hatch, P.C.
1112 Daniels St., Suite 200
P.O. Box 54
Vancouver, WA 98666
[phone]
Attorneys for Plaintiff
LEAH C. LIVELY
WM. BRENT HAMILTON, JR.
Davis Wright Tremaine, LLP
1300 S.W. Fifth Ave, Suite 2400
Portland, OR 97201
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Defendant Umpqua
Bank’s Motion (#49) for Summary Judgment.
1 - OPINION AND ORDER

After reviewing the

parties’ pleadings the Court concludes the record is sufficiently
developed, and, therefore, oral argument is unnecessary.
For the reasons that follow, the Court GRANTS Defendant’s
Motion.

BACKGROUND
The following facts are taken from the Joint Statement of
Facts (#48) and the parties’ summary-judgment materials and are
undisputed unless otherwise indicated.
In 2009 Defendant hired Plaintiff Jennifer Christian
(formerly known as Jennifer Haveman) as a Universal Associate.
Between 2011 and September 2014 Plaintiff worked at
Defendant’s downtown Vancouver location.
In approximately 20131 Plaintiff opened an account for a
customer referred to as “Brad.”2

Plaintiff encountered and

assisted the Customer on other occasions at the bank.

In late

2013 or early 2014 Plaintiff received two or three notes from the
Customer.

Plaintiff does not recall how she received the notes

or whether she had any contact with the Customer.

In one note he

told Plaintiff that she was beautiful and in another note he said
he wanted to go out with her.

After receiving the notes

Plaintiff encountered the Customer at the bank and told him that

1

The record does not reflect when Plaintiff initially
opened the Customer’s account.
2

The parties refer to the customer only as “Brad” for
privacy reasons. The Court will refer to Brad as “the Customer.”
2 - OPINION AND ORDER

she did not want to go out with him, to which he responded “ok.”
The Customer did not attempt to touch Plaintiff physically nor
did he say anything threatening or offensive to her.

Plaintiff

did not tell the bank manager, Chris Sanseri, about these notes.
In early February 2014 Plaintiff received a letter from the
Customer at the bank.

Plaintiff did not see the Customer deliver

the letter or interact with him.

In the letter the Customer said

things such as Plaintiff was the most beautiful woman he had ever
seen, Plaintiff was his dream girl, they were meant to be
together, and he wanted to be with her.

Plaintiff shared this

letter with Sanseri and other employees.
On Valentine’s Day 2014 the Customer sent Plaintiff flowers
and a card at the bank.

Plaintiff was not at the bank when the

flowers were delivered by a florist.
Plaintiff discussed receiving the flowers and the first
letter with Sanseri.

Plaintiff expressed concern for her safety

and told Sanseri that she thought it was a bad idea for the
Customer to be allowed in the bank.

Sanseri agreed and stated he

“would not allow [the Customer] to come back” and if the Customer
did return, Sanseri “would immediately tell him that he was no
longer allowed to come back in the bank.”

Sanseri asked

Plaintiff whether she was comfortable calling the Customer to
tell him that the flowers and letters were not appropriate.
Plaintiff contends Sanseri said it would be better if Plaintiff
told the Customer herself.

Plaintiff also contends although she

was not comfortable calling the Customer, she agreed to do so
3 - OPINION AND ORDER

“because it was apparent to her that Sanseri did not want to do
it.”
Plaintiff called the Customer and told him the flowers were
inappropriate and that she was not interested in dating him.

The

Customer responded “ok.”
A few days after the telephone call the Customer left a
second letter for Plaintiff at the bank.

Again, Plaintiff was

not present when the letter was delivered, and she did not have
any interaction with the Customer.

The second letter included

statements similar to those in the first letter.
Plaintiff did not have communications from the Customer or
see him again until September 2014.
On Saturday, September 13, 2014, Plaintiff was volunteering
at a community block party.

Defendant supports community events,

encourages employees to volunteer, and routinely sends out an
ice-cream truck to hand out free ice cream.

Plaintiff arranged

for the bank’s ice-cream truck to be present at this community
event, and she handed out the ice cream.

During this event

Plaintiff saw the Customer sitting on a wall near the truck and
looking in her direction.

Plaintiff does not have any

information that the Customer came to the block party because of
her or that he had any way of knowing Plaintiff would be at the
block party.

Plaintiff did not have any interaction with the

Customer at this time nor does she recall telling Sanseri about
this incident.
On September 23, 2014, the Customer came into the bank to
4 - OPINION AND ORDER

open a new bank account.3

That day Plaintiff was assigned to

work the new-accounts desk.

Sanseri asked Plaintiff to open a

new account for the Customer.

Plaintiff told Sanseri that she

did not feel comfortable opening the account because “that was
[the Customer]” who had sent her flowers in February and was not
supposed to return to the bank.

Sanseri had not previously seen

the Customer, could not identify him, and did not remember the
situation.

Sanseri, however, asked another associate to assist

the Customer.

Plaintiff, therefore, did not interact with the

Customer although he “continuously looked in Plaintiff’s
direction.”
On September 26, 2014, the Customer again returned to the
bank “to hang out in the lobby.”

The Customer had interactions

with other employees and “stared” at Plaintiff, but he did not
speak to or have any contact with her.

Following this incident

Plaintiff called Dan Souvenir, a former area manager, about the
situation.

After speaking to Souvenir Plaintiff called Bobbi

Heitschmidt, the current area manager, and left a voicemail.
Plaintiff also called and left a message for Kris Wolfram in
Defendant’s Human Relations Department.

Heitschmidt returned

Plaintiff’s call later that day and asked her whether the
Customer was still in the store and whether Plaintiff was in
immediate danger.

Plaintiff told Heitschmidt that she was

“fearful for her safety.”

Heitschmidt said she would find a way

to help Plaintiff with the Customer.
3

Following her conversation

In July 2014 the Customer had closed his prior account.

5 - OPINION AND ORDER

with Plaintiff Heitschmidt contacted Sanseri and Melissa
Gonzales, Vice President of Corporate Security.

Gonzales told

Heitschmidt that the bank could apply for a no-trespassing order
against the Customer if he posed a physical threat or if there
was reason to believe there was a risk of imminent danger or harm
to Plaintiff.
day.

Wolfram also returned Plaintiff’s call on the same

Plaintiff told Wolfram about all of the past incidents and

that she was afraid of the Customer.

Wolfram said she would call

Sanseri and Heitschmidt and then call Plaintiff back after she
had more information.

Wolfram told Plaintiff that she should go

to the breakroom in the back of the building if the Customer
returned.

After speaking with Heitschmidt, Sanseri met with

Plaintiff to discuss Plaintiff’s concerns and to reassure
Plaintiff that the bank would take immediate action.

Sanseri

told Plaintiff that he had also spoken to Gonzales about getting
a no-trespass order and that the bank could either close the
Customer’s account or ask him to go to another location.
Plaintiff went home for the weekend after this meeting .
On September 29, 30, and October 1, 2014, Plaintiff called
in sick.

Sanseri or Heitschmidt called Plaintiff each day to ask

how she was feeling and to find out when she would return to
work.

Sanseri told Plaintiff that Defendant had not obtained a

no-trespassing order; that the bank was short-staffed; and if
Plaintiff returned to work, she could hide in the breakroom in
the event the Customer returned.

Plaintiff told Sanseri that she

did not want to return to that branch because she feared for her
6 - OPINION AND ORDER

safety.
On October 1, 2014, Sanseri called Plaintiff at home and
told her that he wanted to meet with her when she returned to
determine whether Plaintiff had any evidence that the Customer
threatened her or said or did anything that showed the Customer
was an imminent danger to Plaintiff.
On October 2, 2014, Plaintiff met with Sanseri, Heitschmidt,
and Wolfram to discuss various options to address the situation,
including a location transfer, closing the Customer’s account,
and investigating a no-trespassing order against the Customer.
Wolfram asked Plaintiff to prepare a letter that described the
incidents in order to assist the bank in obtaining a notrespassing order and that listed Plaintiff’s proposed solutions
that would allow Plaintiff to return to work.
On October 4, 2014, Plaintiff sent a letter (dated
October 3, 2014) to Wolfram.

Plaintiff stated she was making a

“formal complaint” that she was “sexually harassed” by the
Customer.

Plaintiff summarized the events and requested, among

other things, that the bank obtain a no-trespassing order against
the Customer; the bank close the Customer’s account; the bank
transfer Plaintiff to the Salmon Creek location; no one talk to
others about the reason for Plaintiff’s transfer; Sanseri,
Heitschmidt, and another employee participate in sensitivity
training and “not hassle” Plaintiff about the incidents; and
Plaintiff have reasonable time off for medical appointments and
mental-health counseling “to recover from this frightening and
7 - OPINION AND ORDER

threatening situation.”
On October 4, 2014, Defendant closed the Customer’s account
and instructed the Customer that he could not return to any of
Defendant’s locations.

Nevertheless, on October 6, 2014, the

Customer went to the Vancouver location of the bank.
was not present.

Plaintiff

Sanseri told the Customer that his account was

closed and that he was not to return to any of Defendant’s bank
locations.

The Customer has not returned to any of the bank’s

locations and has not had any further contact with Plaintiff.
Plaintiff was temporarily transferred to the Evergreen
location that was managed by Lori Wick.

Wick was aware Plaintiff

needed a “safe place to work,” but she was not aware that
Plaintiff had complained of sexual harassment.
at this location for a few weeks.

Plaintiff worked

While she was at the Evergreen

bank Plaintiff made three “significant” errors that were
documented by Wick in an October 16, 2014, email to Plaintiff.
In her email response Plaintiff “accepted responsibility” for one
of the errors.

In her Complaint, however, Plaintiff alleges she

was “counseled regarding several mistakes that she did not make.”
Plaintiff was eventually transferred to the Salmon Creek
location per her request.

Plaintiff accepted a reduction in her

work hours from 30 to 25 hours per week.

Naomi Camargo, Manager

of the Salmon Creek bank, was not informed about the reason for
Plaintiff’s transfer.
On November 12, 2014, Plaintiff made an error in a deposit
when she entered $6,500 on a deposit slip instead of the actual
8 - OPINION AND ORDER

$65,000 maker-to-maker deposit.

Defendant contends Plaintiff

made other errors and failed to perform other duties that were
documented by Camargo.
On November 21, 2014, Camargo prepared a written
disciplinary report regarding these errors, but she was unable to
deliver it to Plaintiff before she resigned.
On November 26, 2014, Plaintiff emailed her resignation to
Wolfram.

Plaintiff stated she was resigning because “[m]y doctor

has declared it is bad for my health to continue working at
Umpqua Bank.”
On August 20, 2016, Plaintiff filed a civil action against
Defendant in Oregon state court and alleged federal and
Washington state-law claims of sexual harassment/discrimination
and retaliation.
On October 4, 2016, Defendant removed the state-court action
to this Court.4

On October 11, 2016, Defendant filed an Answer

to Plaintiff’s Complaint.
On March 20, 2018, Defendant filed a Motion (#49) for
Summary Judgment.

STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

4

Washington Mut. Ins. v. United

This Court earlier denied Plaintiff’s Motion (#9) to Remand
that was based on issues of service and the timeliness of removal.
9 - OPINION AND ORDER

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

10 - OPINION AND ORDER

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Defendant contends it is entitled to summary judgment
because there is not a genuine dispute of material fact and
Defendant is entitled to judgment as a matter of law on each of
Plaintiff’s claims.

Plaintiff, in turn, contends there are

genuine disputes of material fact as to each of her claims from
which a reasonable juror could find in her favor.
I.

Plaintiff’s Sexual-Harassment Claim
Plaintiff alleges she was subject to sexual harassment and

discrimination in violation of state and federal laws based on
the conduct of the Customer and Defendant’s failure to prevent
the hostile work environment.
Defendant, however, contends Plaintiff cannot establish a
11 - OPINION AND ORDER

prima facie case of sexual harassment because the Customer’s
conduct was not sufficiently severe or pervasive to create a
hostile work environment, and, in any event, the Customer’s
conduct cannot be imputed to Defendant.

A.

Standards
Under Title VII, 42 U.S.C. § 2000e, it is unlawful for

an employer to discriminate against any individual with respect
to her compensation, terms, conditions, or privileges of
employment because of her race, color, religion, sex, or national
origin.

Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th

Cir. 2003).

Sexual harassment in the form of a hostile work

environment constitutes unlawful discrimination.

Id.

To

establish a prima facie case of sex discrimination based on a
hostile work environment the plaintiff must show (1) she was
subjected to verbal or physical conduct relating to a statutorily
protected class of which she was a member, (2) the conduct was
unwelcome, (3) the harassment complained of was so severe or
pervasive as to alter the work environment, and (4) the defendant
had notice of the harassment.

See Vasquez v. County of Los

Angeles, 394 F.3d 634, 642 (9th Cir. 2004).

See also McGinest v.

GTE Serv. Corp., 360 F.3d 1103, 1119 (9th Cir. 2004).
To establish a hostile workplace claim under the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW,
a plaintiff must show (1) unwelcome harassment (2) that is
12 - OPINION AND ORDER

attributable to plaintiff’s membership in a protected class
(3) that affected the terms and conditions of the plaintiff’s
employment (4) that is imputable to the plaintiff’s employer.
Loeffelholz v. Univ. of Wash., 175 Wash.2d 264, 275 (2012).

The

objective severity of harassment is evaluated from the
perspective of a reasonable woman.

Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 79 (1998).

See also Clark County

School Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).
Whether the work environment is “hostile” or “abusive”
depends on all of the circumstance including “the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”
U.S. 17, 23 (1993).

Harris v. Forklift Sys., Inc., 510

“It is the harasser’s conduct [that] must be

pervasive or severe, not the alteration of the conditions of
employment.”
1991).

Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.

See also E.E.O.C. v. Robert L. Reeves & Assoc., 58 F.

App’x 830, 832 (9th Cir. 2003).
In addition to proving that sexual harassment occurred,
the Plaintiff must also prove the employer is liable for the
harassment.

Little v. Windermere Relocation, Inc., 301 F.3d 958,

966, 968–69 (9th Cir. 2002).

The Ninth Circuit has held sexual

harassment on the part of a private individual may be imputed to
the employer when "the employer either ratifies or acquiesces in
the harassment by not taking immediate and/or corrective actions
13 - OPINION AND ORDER

when it knew or should have known of the conduct.”

Folkerson v.

Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997).
See also Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir. 2006);
Davis v. Wash. State Patrol, No. 71736-7-I, 2014 WL 5144762, at
*9 (Wash. App. Oct. 13, 2014)(under WLAD conduct can be
indirectly imputed to the employer if the employer knew or should
have known about the hostile behavior and failed to take
reasonable corrective actions to end the harassment).

In such

instances the hostile environment liability of the employer is
grounded in negligence and ratification rather than intentional
discrimination.
Cir. 2001).

Swenson v. Potter, 271 F.3d 1184, 1191–92 (9th

Accordingly, after the employer becomes aware of the

harassing behavior of the private individual, the employer is
required to undertake remedial measures reasonably calculated to
end the harassment.
1120 (9th Cir. 2004).

McGinest v. GTE Svc. Corp., 360 F.3d 1103,
The reasonableness of such remedial

measures depends on the employer’s ability to stop the harassment
as well as the promptness of the response.
B.

Id.

Analysis
Plaintiff concedes she was not concerned for her safety

during her initial contacts with the Customer.

In fact, the

parties agree the Customer never attempted to touch Plaintiff and
never said anything explicitly threatening or offensive to
Plaintiff.

Plaintiff contends, however, that the “escalating

nature” of the Customer’s conduct was sufficiently severe and
pervasive to alter the conditions of her employment, and,
14 - OPINION AND ORDER

therefore, the Customer’s conduct should be imputed to Defendant.
1.

Hostile Work Environment
Courts must determine whether an environment is

sufficiently hostile or abusive by “looking at all the
circumstances,” including the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.”
Kortan v. California Youth Auth., 217 F.3d 1104, 1110 (9th Cir.
2000)(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 78788 (1998)).

It is the harasser’s conduct that must be pervasive

or severe rather than alteration of the conditions of employment.
Ellison, 924 F.2d at 878.
As noted, Plaintiff alleges several instances of
contact with the Customer after she initially opened his account:
(1) She received notes from the Customer in late 2013 or early
2014 stating Plaintiff was beautiful and that he wanted to go out
with her; (2) she received a letter from the Customer in early
February 2014 stating Plaintiff was beautiful, Plaintiff was the
girl of his dreams, and he wanted to be with her; (3) she
received flowers from the Customer on Valentines Day in 2014;
(4) she received a letter from the Customer after she received
the flowers; (5) she saw the Customer at a community event in
September 2014; (6) she saw the Customer in the bank on
September 23, 2014, when he came to open a new account; and
(7) she saw the Customer in the bank on September 26, 2014,
15 - OPINION AND ORDER

when he came to “hang out” in the lobby.
Plaintiff concedes she did not advise Defendant
that she received the notes from the Customer in late 2013 or
early 2014 and did not notify Defendant that she saw the Customer
at the community event.

The record also reflects Plaintiff did

not have any direct, personal interactions with the Customer on
any of those occasions.

All of these events occurred over a one-

year period, and seven months elapsed between receipt of the
flowers in February 2014 and when Plaintiff saw the Customer in
September 2014 in a public place and then at the bank a few days
later.
Defendant admits Sanseri told Plaintiff in
February 2014 that the Customer would be asked to leave the bank
if he returned, but when the Customer returned to the bank on
September 26, 2014, Sanseri “forgot” about this conversation
and asked Plaintiff to open an account for the Customer.
Plaintiff acknowledges she explained to Sanseri who the Customer
was, Sanseri did not recognize the Customer, Sanseri had another
employee assist the Customer, and Plaintiff went to a break room
until the Customer left.

Without more, however, this single

incident is not sufficient to constitute a hostile workplace.
On this record the Court concludes no reasonable
juror could conclude after considering all of the circumstances
that the Customer’s actions were so severe or pervasive as to
alter the conditions of Plaintiff’s employment and to create a
hostile work environment.
16 - OPINION AND ORDER

2.

Imputed Conduct or Acquiescence
As noted, sexual harassment on the part of a

private individual may be imputed to the employer when "the
employer either ratifies or acquiesces in the harassment by not
taking immediate and/or corrective actions when it knew or should
have known of the conduct.”

Folkerson v. Circus Circus Enters.,

Inc., 107 F.3d 754, 756 (9th Cir. 1997).
When advised of the incidents involving the
Customer, Defendant immediately responded to Plaintiff’s
concerns.

Sanseri met with Plaintiff after she received the

flowers in February 2014 and decided the Customer would not be
allowed to come back in the bank and the Customer should be told
it was inappropriate to send flowers.

Following the incident on

September 26, 2014, Sanseri, Heitschmidt, and Wolfram met with
Plaintiff to address her concerns.

Although the bank was unable

to obtain a formal no-trespassing order, the Customer’s account
was closed, he was instructed not to return to any of Defendant’s
locations, and Plaintiff was transferred to another branch per
her request.
Even if the Customer’s conduct could be considered
sufficiently severe or pervasive to alter the conditions of
Plaintiff’s employment to the degree that is could be considered
sexual harassment and created a hostile work environment, the
record reflects Defendant took immediate and corrective action
reasonably calculated to end the harassment, and Defendant did
not ratify or acquiesce in the Customer’s conduct sufficient to
17 - OPINION AND ORDER

impute the Customer’s conduct to Defendant.
In summary, on this record the Court concludes no reasonable
juror could conclude the Customer’s actions created a hostile
work environment sufficient to support a sexual harassment claim,
and even if the Customer’s actions could be considered sexual
harassment, Plaintiff has not identified any facts to establish
that Defendant ratified or acquiesced in that conduct.
Accordingly, the Court GRANTS Defendant’s Motion for Summary
Judgment as to Plaintiff’s claims for sexual harassment under
federal and state laws.
II.

Plaintiff’s Retaliation Claim
Plaintiff alleges Defendant retaliated against her after she

made complaints about the Customer’s sexual harassment.
Defendant, however, contends Plaintiff did not engage in any
protected activity when she complained about the Customer’s
behavior, Plaintiff did not suffer any adverse employment action,
and Plaintiff cannot show any alleged adverse actions were
motivated by her complaints of sexual harassment.
A.

Standards
To establish a claim for retaliation under Title VII

and WLAD a plaintiff must establish (1) she engaged in a
protected activity, (2) the defendant subjected her to an adverse
employment action, and (3) a causal link exists between the
protected activity and the employer’s adverse action.

McGinest

v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004).

See

also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir.
18 - OPINION AND ORDER

2003)(indicating Washington courts look to federal law when
analyzing retaliation claims under WLAD).
To establish that an employment action was adverse the
plaintiff must show a reasonable employee would have found the
challenged action was “materially” adverse; i.e., that the action
“might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006).

See also Ray v.

Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).

An action need

not rise to the level of an ultimate employee action such as
discharge to be materially adverse.
B.

Ray, 217 F.3d at 1242-43.

Analysis
1.

Protected Activity
Under Title VII an employee engages in a protected

activity when she opposes an unlawful employment practice such as
sexual harassment that her employer has ratified or to which her
employer acquiesced.

42 U.S.C. § 2000e-3(a).

Here Plaintiff asserts Defendant “retaliated
against [her] after she complained about [the Customer's] sexual
harassment."

Compl. ¶¶ 25, 26, 37, and 38.

the following facts support her position:

Plaintiff asserts

She complained to

Sanseri in September 2014 that she could not open a new account
for the Customer; she contacted Souvenier, Heitschmidt, and
Wolfram on September 26, 2014, to report that Sanseri allowed the
Customer to open an account over Plaintiff’s objections and that
she was afraid of the Customer; she “repeatedly” resisted
19 - OPINION AND ORDER

pressure to return to work at the downtown branch without any
protection to ensure her safety; and she insisted on a store
transfer before returning to work.

Pl.’s Resp. (#57) at 37.

Although none of the activities described by Plaintiff constitute
an unlawful employment practice actually engaged in by Defendant,
Plaintiff contends the discriminatory acts of the Customer may be
imputed to Defendant because Defendant allegedly either ratified
or acquiesced in the Customer’s conduct by not taking immediate
and/or corrective action.

See Folkerson, 107 F.3d at 755-56.

The Court, however, has concluded Defendant did
not acquiesce or ratify the Customer’s conduct, and, therefore,
the conduct of the Customer cannot be imputed to Defendant.
Accordingly, the Court concludes Plaintiff has failed to
establish that her complaints about the Customer’s conduct
constituted a protected activity in opposition to an unlawful
employment practice by Defendant.
2.

Adverse Employment Action
Plaintiff also alleges Defendant subjected her to

an adverse employment action.
Following Plaintiff’s complaint's about the
conduct of the Customer, Sanseri, Heitschmidt, and Wolfram each
contacted Plaintiff to discuss the issue in direct response to
Plaintiff’s complaints.

Plaintiff thought she was being treated

rudely when Heitschmidt questioned her about the incident on
September 26, 2014, but that one incident does not rise to the
level of retaliation.
20 - OPINION AND ORDER

As noted, a “materially adverse” action is

one that “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination."

See White, 548 U.S. at

68.
The record also reflects Plaintiff was transferred
to another branch location at her request to make her feel safe
in the workplace.

Plaintiff testified in her deposition that the

following acts were retaliatory:

Wick and Camargo, who were

managers at the other locations where Plaintiff worked, made
negative statements about Plaintiff’s work performance; Camargo
made statements about Plaintiff’s clothing and reputation;
Camargo took sales and lending opportunities away from Plaintiff;
and Camargo complained about Plaintiff’s performance after
Plaintiff resigned.

The record, however, does not contain any

objective evidence to support Plaintiff’s argument that Camargo
or Wick took their actions because Plaintiff complained about the
Customer’s harassment.

Accordingly, the Court concludes on this

record that Plaintiff has not established Defendant subjected her
to an adverse employment action,
3.

Causal Link
Even if the managers’ actions could be considered

“adverse” employment actions, there is not any evidence that
their actions were “retaliatory.”
Evidence that a decision-maker is aware of an
employee’s protected activity is required to support a claim of
retaliation.

See Raad v. Fairbanks N. Star Borough Sch. Dist.,

323 F.3d 1185, 1997-98 (9th Cir. 2003).
21 - OPINION AND ORDER

See also Stephens v.

Nike, 611 F. App’x 896, 897 (9th Cir. 2015).

Both managers

stated they were unaware of Plaintiff’s complaints about the
Customer’s conduct and that the actions they took were based
solely on Plaintiff’s performance while employed at their
branches.

Plaintiff does not provide any objective evidence to

the contrary.
On this record the Court concludes there is not
any evidence that Defendant retaliated against Plaintiff because
of her complaints.
In summary, the Court concludes Plaintiff has failed to
provide any evidence from which a reasonable juror could conclude
Defendant retaliated against Plaintiff for engaging in any
protected activity that resulted in an adverse employment action.

CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion (#49)
for Summary Judgment and, accordingly, DISMISSES this matter with
prejudice.
IT IS SO ORDERED.
DATED this 22nd day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

22 - OPINION AND ORDER