Bertsch v. Overstock.com
MEMORANDUM DECISION granting 15 Motion for Summary Judgment. Signed by Judge Dale A. Kimball on 05/26/2011. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
ELIZABETH ANN BERTSCH,
Case No. 2:10CV37DAK
This matter is before the court on Defendant Overstock.com’s Motion for Summary
Judgment. The court held a hearing on the motion on May 10, 2011. Plaintiff was represented
by April Hollingsworth, and Defendant was represented by Rick Sutherland. Having fully
considered the motion, memoranda, affidavits, and exhibits submitted by the parties and the law
and facts relevant to this motion, the court enters the following Memorandum Decision and
This case is an employment dispute in which Plaintiff, who was terminated about three
months after she complained about the conduct of a co-worker, alleges causes of action against
her former employer for hostile work environment sexual harassment and retaliation. Defendant
claims that it responded properly to her complaint, no objectionable conduct occurred after her
co-worker was given a corrective action plan, and Plaintiff’s subsequent termination was based
only on Plaintiff’s own behavioral issues.
In 2001, Bertsch began working at Overstock. She was promoted and reassigned to the
company’s media department in 2002. In the media department, Berstch was required to interact
with a number of co-workers, including Dustin Latimer. Berstch and Latimer did not get along
well with each other.
Bertsch’s direct supervisor, Brian Popelka and the vice president over her department,
Stormy Simon, observed Plaintiff having difficulty working with others and Latimer in
particular. In Bertsch’s 2003 Annual Review, dated February 20, 2003, she was informed that
“she needs to work on getting along with her fellow employees [and that] she needs to continue
to develop her relationship skills.” In her “employee comments” section of the review, Berstch
noted “weak points–my attitude.”
In Berstch’s 2004 Annual Review, dated January 19, 2004, Berstch was informed that she
“needs to work on the team dynamic.” In her “employee comments” section of the review,
Berstch indicated that “I agree with everything.”
Despite these comments in connection with her reviews, Berstch’s supervisors rated her
interpersonal skills as “meets expectations.” In addition, Berstch was never disciplined for a
failure to get along with fellow employees until an incident with Latimer in February 2004.
Berstch alleges that her relationship with Latimer became strained in 2002 when she was
in a group of women who complained about a poster Latimer had put up in his workspace of a
scantily clad woman. Latimer had the poster up for two weeks before Overstock management
told him to take it down. Latimer was upset about taking down the poster and made a comment
that it would not have happened if women did not work in the department.
Also during the 2002-03 time frame, other employees complained about Latimer
watching what appeared to be pornography on his work computer. Overstock states that Latimer
was the video buyer for it and, as part of his duties in late 2002 and early 2003, he had a monitor
to view prospective videos for purchase. Overstock asserts that none of these were pornographic
videos. However, following complaints that he was watching movies while at work, the practice
Berstch testified that not only was Latimer watching videos, but, at some point during this
time, she saw Latimer visit pornographic websites on his work computer. Overstock states that
Berstch did not complain or speak to supervisors about this problem. When another employee,
however, went to their supervisor, the supervisor had Latimer turn it off that day.
There is some dispute about when Berstch complained to supervisors about Latimer and
to whom she complained. Berstch claims that she independently complained to her direct
supervisor and the vice president for her department, who told her to contact the human resources
department. Neither of her supervisors testified that she spoke to them. Overstock claims that
because of an email incident on February 18, 2004, involving Latimer, Berstch, and an outside
vendor, they directed the issue of Latimer and Bertsch’s poor working relationship to the human
resources department. Both supervisors recalled discussing the issue and agreeing to turn the
issue over to the human resources department, but neither recalls which of them informed the
human resources department to look into it.
Berstch stated the date of her complaint differently on two different letters she submitted
to the Utah Anti-discrimination and Labor Division (“UALD”), one before the email incident and
one after it. In her deposition, Overstock asked her to clarify which date was correct, and she
stated that the later date was correct. She stated that she remembered that her meeting with the
human resources department occurred on a Friday, which would have been Friday, February 20,
2004. Thus, according to her deposition testimony, Berstch made her complaint after the email
incident. In addition, the later date is supported by the notes of the HR employee which
reference the email incident.
The email incident involved Latimer stating to a vendor that a delay was due to Berstch’s
failure to provide a timely purchase order. Latimer copied their supervisor, Popelka, and the vice
president of the department, Simon, on the email as well. Simon testified that when she saw the
email she was concerned that Latimer had openly criticized a fellow employee to a vendor. She
was also concerned because it was a vendor with whom she had a longstanding relationship.
Simon was further concerned that Berstch had failed to issue the necessary purchase order and
viewed it as part of Berstch’s ongoing problem with lack of teamwork.
Either Simon or Popelka notified the human resources department (“HR”) of the email
and asked for an investigation into the source of the underlying contention between Berstch and
Latimer. HR investigated the problem and prepared corrective action plans for both Latimer and
Berstch. During the HR investigation, Berstch complained to HR that she had been subjected to
insulting and discriminatory comments by Latimer. The HR notes show that she mentioned that
Latimer insults her in front of others, talks about her behind her back, talks about women, talks
about women as possessions, and makes her feel like a servant rather than a co-worker. She also
states that when he is talked to he improves, but then he goes back to his behavior and he has
gotten worse as time goes on.
The parties dispute whether Latimer’s comments were random incidents or occurred
frequently. Berstch contends that she has consistently said they were almost constant.
Overstock, however, states that she has consistently referred to only a handful of comments over
a multi-year span. The comments Berstch has identified include: Latimer stating that he would
not have been required to take down the poster “if there were not women in the department;”
Latimer stating “this department would run better if the males were doing the job;” Latimer
stating that “this is what happens when you have uneducated women working for you;” and
Latimer stating something to the effect of “that’s how it should be with all of them” in response
to a co-worker’s story that his ex-wife had paid for his trip to California and had sex with him
while he was there.
Plaintiff asserts that too much time has passed for her to recall other specific comments.
Overstock, however, points out that these were the only comments Berstch mentioned to HR
during its investigation and the only comments identified in her complaint to the UALD.
Overstock argues, therefore, that if she could not identify any other comments even during her
employment, there does not appear to be any support for her contention that she has forgotten
Latimer’s comments over the years. Berstch also testified in her deposition that while she could
not remember all of the comments, she could recall the worst and most hurtful comments.
On February 24, 2004, Latimer was given his corrective action plan on a “Disciplinary
Notice” form for his February 18, 2004 email to the vendor. The form was prepared by HR and
describes the problem as: “I have received and investigated complaints that Dustin contributes to
a hostile work environment. The complaints also include abusive behavior by way of manner
and sarcasm. Dustin has insulted a co-worker by e-mail to a vendor.” The notice states that the
corrective action to be taken by Latimer is: “Work with manager and other employees to improve
working relationships with department personnel. Abstain from making derogatory remarks
about sex and gender.”
The next day, on February 25, 2004, a member of the HR staff and Popelka met with
Berstch to discuss their intent to issue her a corrective action plan as well in connection with the
vendor email incident. They explained that her failure to get along with co-workers was creating
performance issues that needed to be addressed. There were concerns that Berstch was
prioritizing work based on how much she liked the person rather than on business necessity.
Overstock states that they also talked to Berstch about separating her from other team members
by having her spend more time doing her work in the warehouse than in the office. Because of
the nature of her job, Berstch spent some days every month in the warehouse. Whereas other
employees in the office, such as Latimer, did not have jobs that were performed in the
warehouse. Berstch claims that at this meeting she was told she would have to work in the
warehouse full-time. Whichever version is correct, no action was taken at that time and
Berstch’s work place did not change.
The next morning, February 26, 2004, Berstch sent a series of emails to Popelka, Simon,
and several of her co-workers. Her email to Popelka and Simon stated:
I think a reason so many people fail at things is that when
presented with a problem, they can’t imagine they are the cause.
Because of a deeply humbling experience, I have learned that I am
the problem. And, because I want the company to succeed, I am
willing to do what it takes to become the solution. But, with the
greatest amount of respect, I ask that I be given an opportunity to
prove to my co-workers that I can change. I am 100% confident
that given this opportunity, I can improve my attitude and become
more “user friendly” to all of my colleagues. For fear of sounding
arrogant, I don’t believe my talents and abilities will be used
effectively at the warehouse. I beg you to reconsider your decision.
I want to change and I know that I can.
Plaintiff also sent an email directly to Latimer. She stated that she sent it because she
wanted to, not because she was told to do it. She also wrote: “I have been blinded enough by my
own pride and prejudices that I could not see I was the problem in our work relationship. Please
believe me when I tell you how sorry I am for this. I never intended to make you feel I was
unapproachable or that your projects were less of a priority. I truly never knew this is how I
make you feel. The last thing I want to have happen is to have my team feel they can’t come to
me for help. Please accept my most sincere apologies. I only hope I will be given the
opportunity to prove I can change. Despite our differences (or mine as the case may be), I have
enjoyed working with you.”
Plaintiff also sent a general email apology to all of the employees in her department. In a
follow-up email to a co-worker who expressed that he had not experienced any problems in
working with her, Plaintiff wrote: “I was told that there were people in the department that said I
made them uncomfortable, they were intimidated by me, and that they had to bribe me to get
their work done. So, since I did not know who was talked to, I sent everyone a personal apology.
God knows I need to, even my family has told me I can be a bitch at times. I would hope that if I
ever do offend you or make you feel uncomfortable, that you would let me know.”
Berstch now states that she did not believe she was the problem or even part of it. She
states that she wrote the emails based on the advice of her mother and in an effort to keep her job.
Later the same day, HR issued Berstch her corrective action plan. The form stated the
problem as: “ I have received and investigated complaints that Beth contributes to a hostile work
environment. The complaints also include abusive behavior by way of manner and sarcasm.
Beth has shown a pattern of not supporting co-workers business needs and she needs to prioritize
her tasks more effectively.” Berstch was given the opportunity to question any aspect of her
corrective action plan, but she did not. She accepted it and noted her acceptance in the employee
statement portion of the form. In that section she wrote: “After having some time to step back
and evaluate my own behavior, I realize I have been contributing to some departmental
contention. I would like the opportunity to personally apologize to those I have offended to help
make amends. I am willing to do my part for the success of the company.” The corrective action
portion of the form stated: “Work with manager and other employees to improve working
relationships with department personnel. Beth will treat all co-workers fairly and prioritize her
work based on business needs. Beth will work on being more consistent in her interactions with
After the corrective action plan was issued on February 26, 2004, Berstch continued to
work in the same position and keep the same work schedule with respect to days in the office and
days in the warehouse. Berstch states that she cannot recall working in the warehouse from
February to May 2004. But she also submitted an affidavit from Dawn Moya stating that she did
not have any performance issues in the warehouse during that time frame.
On May 12, 2004, a warehouse manager complained to Popelka that Berstch was creating
problems with other employees in the warehouse. Popelka also discovered that Berstch had
failed to complete assigned work tasks. On May 17, 2004, Popelka and Simon decided to
terminate Berstch for failing to improve her ability to work well within the team dynamic, failing
to complete cross training of team members, isolating herself from co-workers, playing video
games at work, and being sarcastic and creating disharmony.
Overstock asserts that rather than deny these reasons, Berstch only attempted to explain
or justify the problems. Bertsch claims that Overstock was merely retaliating for her previous
complaint. To the UALD, Berstch mentioned that she thought she was also fired because of a
statement she made about Simon being flirtatious with the men in the department.
After the February 2004 complaint, however, Bertsch made no further complaints
regarding Latimer’s behavior and does not allege any specific conduct occurred after her
After Berstch’s termination, the parties dispute facts related to whether she mitigated her
damages. Overstock alleges that she made no reasonable effort to obtain employment, and
Berstch claims that she was employed continuously. Berstch had been going to college while
working at Overstock. After her termination, she continued attending college full-time and
graduated with a degree in cosmetology a year after her termination. She began working in that
field shortly after graduation and, in April of 2006, she purchased the barber shop at which she
had been working.
Motion For Summary Judgment
I. Hostile Environment Claim
To establish that a sexually hostile work environment existed, a plaintiff must prove the
following elements: (1) she is a member of a protected group; (2) she was subject to unwelcome
harassment; (3) the harassment was based on sex; and (4) due to the harassment's severity or
pervasiveness, the harassment altered a term, condition, or privilege of the plaintiffs employment
and created an abusive working environment. Harsco Corp. v. Renner, 475 F.3d 1179, 1186
(10th Cir. 2007). To survive summary judgment on a claim alleging a sexually hostile work
environment, Berstch must "show that a rational jury could find that the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of [her] employment and create an abusive working environment" and that
she was "targeted for harassment" because of her gender. Herrera v. Lufkin Indus., Inc., 474
F.3d 675, 680 (10th Cir.2007) (quotation omitted).
This court recently analyzed the methodology to be used in cases of alleged co-worker
harassment. In such cases, “‘[a]n employer may be held liable for harassment by employees
(when they act without apparent authority and outside the scope of their employment), and by
non-employees, only when they employer is negligent, that is when the employer fails to remedy
harassment that it knows or should know about.’” Robinson v. Sunroc Corp., 2010 WL 2079680,
*5 (D. Utah May 24, 2010) (citations omitted). “‘[T]he employer’s liability for allowing a
sexually hostile work environment after it is reported to the employer by the employee arises only
if the employer fails to take adequate remedial and preventative responses to any actually or
constructively known harassment.” Id.
In a co-worker harassment case, “[t]he plaintiff bears the burden of bringing to the trial
court’s attention sufficient evidence to establish the essential element for employer liability: that
the employer inadequately responded to incidents of harassment of which it knew or should have
known.” Id. “The ‘touchstone for evaluation of an employer’s response . . . is reasonableness,’
which is whether the employer’s action was ‘reasonably calculated to end the harassment.” Id.
(citations omitted). “‘A court may determine on summary judgment whether an employer’s
responses to claims of sexual harassment were reasonable as a matter of law.’” Id.
In this case, Berstch registered her complaints about Latimer to HR on February 20, 2004.
Only two business days later, on February 24, 2004, Overstock issued a corrective action plan to
Latimer informing him that he must refrain from making derogatory comments. After Overstock
issued the corrective action plan to Latimer, Berstch does not allege any comment or behavior on
his part that was offensive. Bertsch admits that she did not speak to anyone about Latimer during
the remainder of her employment with Overstock. Berstch, however, believes that Overstock
should have followed up with her. If Overstock had followed up with her, however, there is no
evidence that Berstch would have had anything to report. Due to its prompt and remedial action,
Overstock is not liable for co-worker harassment. This fact alone is dispositive of Berstch's
hostile environment claim. See Robinson, at *5 ("The employer's liability for allowing a sexually
hostile work environment after it is reported to the employer by the employee arises only if the
employer fails to take adequate remedial and preventative responses.").
Even if Overstock’s remedial actions were not enough, Berstch has not proven the
elements of a hostile work environment claim. Berstch alleges only a few comments made over
the span of two years. In fact, most of the comments were not even made directly to Berstch, she
merely overheard some of them in Latimer's conversations with other employees. Although
Berstch has sometimes stated that comments were constant, she has given the same few
examples ever since she complained to the HR department in 2004. She has no support for her
contention that the comments were constant. Berstch, therefore, has not made the requisite
showing of severe or pervasive misconduct necessary to support a claim of hostile work
Overstock also argues that this court should grant summary judgment because Berstch
cannot establish a prima facie case of retaliation. In the absence of direct evidence of retaliation,
the McDonnell Douglas burden-shifting framework applies to a claim for retaliation. Zokari v.
Gates, 561 F.3d 1076, 1081 (10th Cir. 2009). Under this framework, Berstch must establish a
prima facie case of retaliation by showing: (1) a protected employee action, (2) an objectively
materially adverse employer action either after or contemporaneous with her protected action,
and (3) a causal connection between the protected action and the adverse action. Id.
A. Protected Employee Action
Overstock assumes for purposes of this motion that Berstch's February 20 meeting with
HR in which she complained about Latimer meets the first element’s requirement for engaging in
a protected activity.
B. Materially Adverse Employer Action
The second element of the prima facie case requires Berstch to show that "a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,63 (2006). This stage of the
analysis must filter out trivial harms such that Title VII does not become "a general civility code
for the American workplace." Id. at 68.
Berstch alleges that Overstock took three adverse actions: (1) the corrective action plan
Overstock issued against her for the email incident; (2) the alleged threat that she would work in
the warehouse or be terminated; and (3) her termination on May 17, 2004.
Overstock argues that the corrective action plan cannot be considered an adverse action.
In Kline v. Utah Antidiscrimination and Labor Division, 2010 WL 1371362, at *6 (D. Utah
March 31, 2010), the court recognized that "being subject to a [corrective action plan] is not an
adverse employment action." This rule is made clear in Haynes v. Level 3 Communications, 456
F.3d 1215 (10th Cir. 2006) (expressly joining other circuits in holding that a PIP standing alone
is not an adverse employment action). "A written warning may be an adverse employment action
only if it effects a significant change in the plaintiff's employment status." Id.
Here, Berstch was given a corrective action plan as a result of her role in the vendor email
incident. The corrective action plan identified the problem and the corrective action to be taken.
As a result of the corrective action plan, Berstch had no change in her employment status or the
terms of her employment. Therefore, the corrective action plan is not an adverse employment
Next, Berstch alleges that she was threatened with job reassignment in retaliation for her
complaint. Overstock states that Berstch’s supervisors were only trying to remedy the situation
by separating Latimer and Berstch, and only Berstch’s position required spending time at the
warehouse. Berstch’s email to her supervisors the day after the conversation asks them to
reconsider. This email does suggest that they had decided to move her to the warehouse. But, it
also shows that she believed she could still discuss the issue. The fact that the reassignment
never occurred shows that either it had not been decided in the conversation the day before or her
request was considered. In either event, the prospect of being reassigned to the warehouse,
which did not materialize, does not appear to be the kind of conduct that would dissuade an
employee from raising other complaints. Whatever happened in the conversation did not
dissuade Berstch from asking not to be reassigned.
Although the facts relating to the reassignment conversation are somewhat in dispute, it is
undisputed that no job reassignment ever occurred. Even if a threat of reassignment was made,
she experienced no adverse action and had no change to her terms of employment. Moreover,
even if the reassignment had happened, the evidence demonstrates that she would have
maintained her same position and terms of employment but merely worked in different location.
The court, therefore, concludes that the threat of reassignment to the warehouse does not
constitute a materially adverse employment action.
The final alleged adverse action was Berstch’s termination, which occurred three months
after her complaint. Berstch recognizes that the temporal proximity does not establish a causal
connection between her complaint and subsequent termination. Rather, Berstch claims that her
strongest evidence that she was terminated for her protected activity is that the reasons Overstock
gave for her termination are not believable. To establish a prima facie case, however, a plaintiff
must demonstrate a nexus between her complaint and her termination. Overstock is not required
to articulate its reasons for her termination until Berstch has established a prima facie case. A
plaintiff cannot jump to the pretext discussion prior to making out a prima facie case.
Berstch does appear to argue that her termination is connected to her complaint because
she was terminated for failing to correct the problems in her corrective action plan, which was
issued at the same time as her complaint. This argument, however, fails to recognize that Berstch
was not issued a corrective action plan in connection with her complaints against Latimer.
Berstch was issued a corrective action plan for failing to prioritize her work according to
business needs. The email incident occurred because of a delay in processing a purchase order.
The email incident did not occur because of alleged sexual harassment. While Latimer was given
a corrective action plan addressing both the improper email and the other behaviors complained
about by Berstch, Berstch was only given a corrective action plan with respect to work
performance that led to the inappropriate email. The fact that another work performance problem
occurred three months later that caused her to be terminated does not relate to her complaints
against Latimer. The work performance issues related to her termination had no connection to
Latimer. The nexus she must show to establish a prima facie case of retaliation is a connection
between her termination and her complaint regarding Latimer’s conduct, not a connection
between her own corrective action plan and her termination. Because Bertsch has failed to
establish a prima facie case of retaliation, he claim fails and Overstock is entitled to summary
III. Disparate Treatment in Termination
Berstch asks to amend her Complaint to assert a new claim for gender based disparate
treatment in termination. She claims that she was terminated for persisting in certain work
performance issues while Latimer was not. She points to an instance in 2005, about a year after
she was terminated, in which Latimer made an offensive comment in front of a vendor and was
again disciplined but not terminated. Overstock responds that this is an independent cause of
action that was never raised in the Complaint or before the UALD and cannot be raised now.
Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title
VII, not a condition precedent to suit. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317
(10th Cir. 2005). This court lacks subject matter jurisdiction over the claim because it was not
raised before the UALD. Berstch argues, however, that the court can allow her amendment
because her new discrimination claim is sufficiently tied to her other claims. But her new claim
is based on Latimer’s conduct toward a vendor over a year after Berstch was terminated and
after she made her UALD claim. The claim, therefore, does not arise out of the facts that were
asserted to the UALD. Moreover, Berstch has made no attempt to show how Berstch and
Latimer were similarly situated. It would be futile to allow Berstch to add a new disparate
treatment claim. Therefore, her request to amend is denied.
Based on the above reasoning, Defendant Overstock.com’s Motion for Summary
Judgment is GRANTED as to each of Plaintiff’s claims. Because this ruling disposes of all of
Plaintiff’s claims, the Clerk of Court is directed to the close the case. Due to the particular
circumstances presented by the case, the court finds that each party shall bear her and its own
fees and costs. Although Defendant has prevailed on summary judgment, Plaintiff’s case was not
frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421-22 (1978).
DATED this 26th day of May, 2011.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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