Price et al v. Shell Oil Company et al

Filing 124

ORDER by Judge John C Coughenour; Defendant's 94 95 motions for summary judgment are GRANTED IN PART and DENIED IN PART. (TF)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RACHEL A PRICE, et al.,

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Plaintiffs,
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CASE NO. C11-1553-JCC
ORDER

v.
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EQUILON ENTERPRISES LLC, d/b/a
SHELL OIL PRODUCTS US, a Delaware
Limited Liability Company,

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Defendant.
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This matter comes before the Court on Defendant‘s two motions for summary judgment.

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(Dkt. Nos. 94 & 95.) Having thoroughly considered the parties‘ briefing and the relevant record,

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the Court finds oral argument unnecessary and hereby GRANTS IN PART and DENIES IN
PART the motions for the reasons explained herein.

I.

BACKGROUND
This is an employment discrimination case arising out of Defendant Equilon Enterprises,

LLC‘s alleged discrimination against Plaintiffs on the basis of gender and sexual orientation.
(Dkt. No. 54.) Plaintiffs, two LGBT women, allege that they were discriminatorily denied
promotions in 2008, 2011, and 2012, based on their gender or sexual orientation, in violation of
Title VII as well as the Washington Law Against Discrimination (―WLAD‖). (Id. at 6.) In each
case, Plaintiff alleges that less qualified heterosexual men were awarded the promotion. (Id. at 3–

ORDER
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1 5.) Defendant contends that it had legitimate, nondiscriminatory reasons for denying Plaintiffs
2 the promotions. Plaintiffs also state that Defendant subjected them to a hostile work
3 environment, as some of their coworkers allegedly made degrading or derogatory comments
4 about their gender or sexual orientation. (Id. at 2–3.)
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Defendant moves for summary judgment on all claims. (Dkt. Nos. 94 & 95.) Specifically,

6 Defendant argues that a number of the Title VII claims are procedurally barred; that none of the
7 hostile work environment claims under either Title VII or the WLAD may be asserted, as
8 Plaintiffs have not made out a prima facie case on that issue; and that Defendant had legitimate
9 nondiscriminatory reasons to deny the promotions to Plaintiffs. Plaintiffs filed a consolidated
10 response. (Dkt. No. 113.) Defendant filed timely replies. (Dkt. Nos. 115 & 116.)
11 II.

DISCUSSION

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Under Federal Rule of Civil Procedure 56, the Court must enter summary judgment if the

13 record shows ―that there is no genuine issue as to any material fact and that the moving party is
14 entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(a). In determining whether an issue
15 of material fact exists, the Court must determine ―whether the evidence presents a sufficient
16 disagreement to require submission to a jury or whether it is so one-sided that one party must
17 prevail as a matter of law.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
18 Accordingly, the Court must ―draw all reasonable inferences in favor of the nonmoving party,
19 and it may not make credibility determinations or weigh the evidence.‖ Reeves v. Sanderson
20 Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
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In an employment discrimination dispute, a plaintiff generally needs to ―produce very

22 little evidence in order to overcome an employer‘s motion for summary judgment. This is
23 because ‗the ultimate question is one that can only be resolved through a searching inquiry—one
24 that is most appropriately conducted by a factfinder, upon a full record.‘‖1 Chuang v. Univ. of
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The summary judgment standard is the same for state and federal employment
discrimination claims. See Anderson v. Pac. Mar. Ass’n, 336 F.3d 924, 925 n.1 (9th Cir. 2003).
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1 Cal. Davis, Bd. Of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig v. Columbia
2 Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). The Ninth Circuit has ―emphasized the
3 importance of zealously guarding an employee‘s right to a full trial, since discrimination claims
4 are frequently difficult to prove without a full airing of the evidence and an opportunity to
5 evaluate the credibility of the witnesses.‖ McGinest v. GTE Serv. Corp, 360 F.3d 1103, 1112 (9th
6 Cir. 2004).
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Here, Defendant moves for summary judgment on all claims asserted in Plaintiffs‘ Fourth

8 Amended Complaint. (Dkt. Nos. 94 & 95.) Plaintiffs respond only to arguments regarding the
9 WLAD claims that relate to the allegedly discriminatory failure to promote in 2008, 2011, and
10 2012. (See Dkt. No. 105.) Nonetheless, ―a non-movant‘s failure to respond‖ to arguments made
11 in a motion for summary judgment does not constitute ―a complete abandonment of its
12 opposition to summary judgment.‖ Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).
13 However, ―the opposing party‘s failure to respond to a fact asserted in the motion permits a court
14 to ‗consider the fact undisputed for the purposes of the motion.‘‖ Id. (quoting Fed. R. Civ. P.
15 56(e)(2)).
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A.

Discriminatory Denial of a Promotion under the WLAD

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―In discrimination cases, summary judgment is often inappropriate because the WLAD

18 ‗mandates liberal construction‘ and the evidence ‗will generally contain reasonable but
19 competing inferences of both discrimination and nondiscrimination that must be resolved by a
20 jury.‘‖ Johnson v. Chevron U.S.A., Inc., 244 P.3d 438, 443 (Wash. Ct. App. 2010) (footnotes
21 omitted). Summary judgment is appropriate, however, ―when the plaintiff fails to raise a genuine
22 issue of fact on one or more prima facie elements.‖ Id. (footnote omitted).2
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The Court does not reach the issue of whether, in this case, the more appropriate
standard to apply at trial with respect to the WLAD claims is the McDonnell Douglas pretext
26 standard or the mixed motive standard, because the Court has determined that Plaintiffs have
satisfied their burden on summary judgment even under the McDonnell Douglas standard.
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ORDER
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Under the WLAD, an employer may not ―discriminate against any person in

2 compensation or in other terms or conditions of employment because of . . . sex . . . [or] sexual
3 orientation.‖ RCW § 49.60.180(3). To establish a sex or sexual orientation discrimination claim,
4 a plaintiff must show that she can put forward a prima facie case, consisting of: ―(1) membership
5 in a protected class; (2) the employee is qualified for the employment position or performing
6 substantially equal work; (3) an adverse employment decision including termination or denial of
7 promotion; and (4) selection by the employer of a replacement or promoted person from outside
8 the protected class.‖ Kuest v. Regent Assisted Living, Inc., 43 P.3d 23, 26 (Wash. Ct. App. 2002).
9 The employee alleging discrimination must establish specific and material facts to support each
10 element of the prima facie case. Id. at 26–27. ―If a prima facie case is established, a ‗legally
11 mandatory, rebuttable presumption of discrimination temporarily takes hold‘ and the employer
12 must produce sufficient evidence of a legitimate and nondiscriminatory explanation for the
13 employment action.‖ Id. at 27 (quoting Hill v. BCTI Income Fund-I, 23 P.3d 440, 446 (Wash.
14 2001)). If the employer satisfies its burden, the employee must provide evidence of pretext. Id.
15 But ―once evidence supporting a prima facie case, a non-discriminatory explanation, and pretext
16 have been presented and ‗the record contains reasonable but competing inferences of both
17 discrimination and nondiscrimination, it is the jury‘s task to choose between such inferences.‘‖
18 Id. (quoting Hill, 23 P.3d at 449).
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Here, Plaintiffs have satisfied their obligation to put forward sufficient evidence to prove

20 their prima facie case with respect to the 2011 and 2012 promotions.3 The first, third, and fourth
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Neither Plaintiff alleges, in the Complaint, that either of them applied to the 2008
position after it was publicly reposted. (Dkt. No. 54 at 4.) Nor have they submitted evidence
supporting such a claim. Failure to apply for the promotion means they have not satisfied the
second element of their prima facie case as to the 2008 position. See Fulton v. State Dep’t of Soc.
& Health Servs., 279 P.3d 500, 511 (Wash. Ct. App. 2012) (generally, employee must
demonstrate that she applied for the position and was not accepted to satisfy her prima facie case;
if employee was never given notice of the position, she need not show that she applied). To the
extent Plaintiffs are alleging WLAD discriminatory denial of promotion claims regarding 2008
position, the Court grants summary judgment to Defendant on those claims.
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1 elements are clearly satisfied. Defendant concedes that both Plaintiffs are members of two
2 protected classes. Moreover, Plaintiffs satisfy the third element because they were not promoted.
3 Finally, the fourth element is satisfied because heterosexual men were awarded each of the
4 contested positions.
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Moreover, the Court finds that Plaintiffs have alleged sufficient facts to satisfy the second

6 factor as to both the 2011 and 2012 promotion opportunities. Defendant argues that Rachel Price
7 did not qualify for the 2011 position because she had three safety violations, (Dkt. No. 94 at 15),
8 and so ―[Defendant] had legitimate, nondiscriminatory reasons for not promoting Price.‖ (Id.)
9 Similarly, Defendant argues that ―[it] had legitimate non-discriminatory reasons for its decision,‖
10 not to offer the 2011 promotion to Tessa Gehardt because she ―had difficulties working with
11 other employees.‖ (Dkt. No. 95 at 15.) However, Defendant puts forward no evidence that the
12 2011 job posting was limited to individuals who did not have three or more safety violations, or
13 who had no ―difficulties working with other employees.‖
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Defendant argues that Rachel Price did not qualify for the 2012 position, ―because she

15 was not the most qualified applicant.‖ (Dkt. No. 94 at 16.) But even if she was not the most
16 qualified applicant, she has put forward sufficient evidence to show that she met the minimum
17 requirements for the position. Similarly, Defendant contends that it did not promote Tessa
18 Gehardt in 2012 because ―of her responses to interview questions, ongoing concerns about her
19 ability to work effectively with others, and her lack of computer programming knowledge.‖ (Dkt.
20 No. 95 at 15.) However, it is only after a plaintiff has satisfied her burden to put forward a prima
21 facie case that the burden shifts to Defendant to provide a ―legitimate and nondiscriminatory
22 reason‖ to not promote the individual alleging discrimination. See Kuest, 43 P.3d at 27. Here,
23 Plaintiff has put forward sufficient facts to demonstrate that both Rachel Price and Tessa Gehardt
24 met the minimum qualifications for the two job postings. Accordingly, Plaintiffs have provided
25 sufficient evidence to satisfy their burden of proving a prima facie case of employment
26 discrimination under the WLAD.

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Accordingly, the Court considers whether there are any reasonable ―competing

2 inferences‖ that may be drawn after Defendant has put forward a nondiscriminatory motive, and
3 Plaintiffs have put forward their evidence of pretext.
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1. 2011 Promotion
Defendant repeats its arguments regarding its legitimate and nondiscriminatory reasons

6 for failing to promote Plaintiffs in 2011: namely, that Rachel Price allegedly had a history of
7 safety violations, and Tessa Gehardt allegedly had difficulty working with others. (Dkt. No. 94 at
8 16, Dkt. No. 95 at 16.) Plaintiff argues that there is evidence of pretext, given the fact that, in the
9 past, a heterosexual man‘s difficulty working with other individuals did not preclude promotion,
10 and the person who was offered the promotion in 2011 was himself involved in at least one
11 safety violation that required the presence of a hazmat team. (Dkt. No. 113 at 12–13.) Moreover,
12 Plaintiff points to discriminatory statements and actions by employees of Defendant that support
13 her claim of a discriminatory motive, including statements by at least one individual involved in
14 the hiring process. The Court cannot find that Plaintiff‘s inferences are unreasonable. See Kuest,
15 43 P.3d at 27 (case should be submitted to the jury as long as there are inconsistent but
16 reasonable inferences).
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2. 2012 Promotion
Defendant again alleges that it denied the 2012 promotion to Rachel Price because she

19 had fewer programming skills than the person eventually promoted, (Dkt. No. 94, at 17), and to
20 Tessa Gehardt because she did not provide strong answers in her interview questions and had
21 difficulties working with others. (Dkt. No. 95 at 16–17.) Plaintiffs point to a pattern of promoting
22 heterosexual men over LGBT people and women, and argue that, objectively, Plaintiffs were
23 better qualified for the position than the heterosexual man who was eventually hired. (Dkt. No.
24 113 at 13–16.) Drawing all reasonable inferences in Plaintiffs‘ favor, there is a genuine issue of
25 material fact as to whether the reasons advanced for failing to promote Plaintiffs were pretextual.
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Accordingly, because the Court finds that there are permissible competing inferences

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1 regarding whether the failure to promote either Plaintiff in 2011 or 2012 was discriminatory, the
2 Court finds that there are genuine issues of material fact that should be submitted to a jury.
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B.

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Discriminatory Denial of Promotion and Hostile Work Environment Claims
under Title VII

Defendant argues that the Title VII claims asserted by Plaintiffs relating to events

6 occurring before February 2, 2011 are barred by Title VII‘s statute of limitations; that many of
7 the Title VII claims are barred because neither Plaintiff included them in the Equal Employment
8 Opportunity Commission (―EEOC‖) charges; that sexual orientation is not a protected class
9 under Title VII; and that neither Plaintiff can meet her burden to show a prima facie case of
10 gender discrimination on either the discriminatory denial of promotion claims or the hostile work
11 environment claims. (Dkt. No. 94 at 9–18; Dkt. No. 95 at 9–17.) Plaintiffs do not respond to any
12 of these arguments. (See Dkt. No. 113 at 1.) However, because ―a non-movant‘s failure to
13 respond‖ to summary judgment arguments does not constitute ―a complete abandonment of its
14 opposition to summary judgment,‖ Heinemann v, 731 F.3d at 917, the Court will analyze the
15 arguments under the normal summary judgment standards.
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Title VII claimants ―generally establish federal court jurisdiction by first exhausting their

17 EEOC administrative remedies. Therefore ‗[i]ncidents of discrimination not included in an
18 EEOC charge may not be considered by a federal court unless the new claims are like or
19 reasonably related to the allegations contained in the EEOC charge.‘‖ Sosa v. Hiraoka, 920 F.2d
20 1451, 1456 (9th Cir. 1990) (quoting Green v. Los Angeles Cnty. Superintendent of Schs., 883
21 F.2d 1472, 1475–76 (9th Cir. 1989)). Where a plaintiff only alleges a discriminatory failure to
22 promote claim in the EEOC charge, unrelated claims may not be asserted in a subsequent
23 lawsuit. See Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)
24 (―[I]nquiry into whether a claim has been sufficiently exhausted [by an EEOC administrative
25 charge] must focus on the factual allegations made in the charge itself, describing the
26 discriminatory conduct about which a plaintiff is grieving.‖). ―While it is true that the continuing

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1 violation theory ‗draws within the ambit of a Title VII claim all conduct occurring before and
2 after the filing of an EEO charge,‘ that conduct must still be like or reasonably related to the
3 events charged.‖ Id. at 639 (quoting Greenlaw v. Garrett, 59 F.3d 994, 1000 (9th Cir. 1994)).
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In this case, Plaintiffs each filed an EEOC complaint. In each of the EEOC complaints,

5 Plaintiffs argue only that they were discriminatorily denied a promotion in 2011 due to their
6 gender or sexual orientation. (See Dkt. No. 98, Ex. F.) Neither of them makes any claims about a
7 hostile work environment. Accordingly, the Court grants summary judgment to Defendant on the
8 hostile work environment claims. Moreover, the Court grants summary judgment to Defendant
9 on all Title VII claims related to the 2008 failure to promote, as neither Plaintiff applied for that
10 promotion.4
However, because the ―denial of [a] promotion occurring after [the] filing of [an] EEOC

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12 charge may be adjudicated along with other Title VII claims,‖ Sosa, 920 F.2d at 1457 (citing
13 Chung v. Pomona Valley Cmty. Hosp., 667 F.2d 788, 792 (9th Cir. 1982), the Court declines to
14 grant summary judgment on Plaintiffs‘ Title VII claims arising out of the alleged denial of the
15 2011 and 2012 promotions. Moreover, for the reasons discussed above in relation to the WLAD
16 denial of promotion claims, the Court finds that Plaintiffs have raised a genuine issue of material
17 fact as to whether the denials of the promotions in 2011 and 2012 were discriminatory. To the
18 extent Plaintiffs‘ claims regarding the denial of those promotions rest on discrimination due to
19 either gender or gender nonconformity, the Court declines to grant summary judgment on those
20 claims. See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1069 (9th Cir. 2002) (holding that
21 Title VII bars discrimination on the basis of sex stereotypes, which may manifest in a manner
22 similar to sexual orientation discrimination) (en banc).
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Because the Court grants summary judgment to Defendant on this claim, it does not
26 reach the issue of whether the Plaintiffs are barred from asserting it due to the statute of
limitations.
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C.

Hostile Work Environment Claims Under the WLAD

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Defendant also contends that there is no genuine issue of material fact as to the hostile

3 work environment claims asserted under the WLAD, as Plaintiffs cannot prove their prima facie
4 case. (Dkt. No. 94 at 18–23; Dkt. No. 95 at 17–22.) Plaintiffs do not contest Defendant‘s claims,
5 or put forward any evidence to oppose that which was submitted by Defendant.
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The four elements of a prima facie hostile work environment claim under the WLAD are:

7 ―(1) the harassment was unwelcome, (2) the harassment was because of sex [or sexual
8 orientation], (3) the harassment affected the terms and conditions of employment, and (4) the
9 harassment is imputable to the employer.‖ Antonius v. King Cnty., 103 P.3d 729, 732 (Wash.
10 2004). A hostile work environment may be imputed to an employer if an owner, manager,
11 partner, or corporate officer ―personally participates in the harassment,‖ Glasow v. Georgia12 Pacific Corp., 693 P.2d 708, 712 (Wash. 1985), or, where the harassment was performed by the
13 harassed employee‘s lower-level supervisors or co-workers, the employer ―authorized, knew, or
14 should have known of the harassment‖ and ―failed to take reasonably prompt and adequate
15 corrective action.‖ Id. Corrective action must be ―reasonably calculated to end the harassment.‖
16 Perry v. Costco Wholesale, Inc., 98 P.3d 1264, 1270 (Wash. Ct. App. 2004) (quoting Swenson v.
17 Potter, 271 F.3d 1184, 1192 (9th Cir. 2001)). In this case, Plaintiffs do not argue, and have not
18 put forward any evidence demonstrating, that the alleged harassment was performed by upper19 level management.
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Defendant argues that there is no evidence that it failed to take reasonably prompt and

21 adequate corrective action, based on the conduct reported. First, some of the statements that
22 Plaintiffs allege contributed to the hostile work environment were never reported to ―higher
23 managerial or supervisory personnel.‖5 See Glasgow, 693 P.2d at 712. Nor does Plaintiff argue,
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For instance, Plaintiff Gehardt alleges that Jim Fox told her that he needed to ―find [her]
a man, get [her] married,‖ while referencing her ―lifestyle,‖ apparently referencing her status as a
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1 or put forward any evidence demonstrating, ―such a pervasiveness of sexual harassment at the
2 work place as to create an inference of the employer‘s knowledge or constructive knowledge of
3 it.‖ Glasgow, 693 P.2d at 712. Accordingly, Defendant cannot be said to have been ―aware‖ of
4 those specific allegations. Moreover, while some hostile conduct was reported, remedial actions
5 related to that conduct were subsequently taken. For instance, Defendant notes that its Human
6 Resources Manager, who investigated allegedly discriminatory comments made by Plaintiffs‘
7 co-workers, stated that even if certain comments were made, ―they had been resolved and . . .
8 had never occurred again.‖ (Dkt. No. 97, Ex. H, at 153–56.) Plaintiff does attempt to show, or
9 put forward any evidence demonstrating, that the ―remedial action was not of such nature as to
10 have been reasonably calculated to end the harassment.‖ Glasgow, 693 P.2d at 712.
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Thus, based on the uncontroverted evidence submitted to the Court, there is no genuine

12 issue of material fact as to whether the alleged hostile work environment may be imputed to
13 Defendant. Accordingly, the Court grants summary judgment to Defendant on the hostile work
14 environment claims asserted under the WLAD.
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CONCLUSION

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For the foregoing reasons, Defendant‘s motions for summary judgment (Dkt. Nos. 94 &

17 95) are GRANTED IN PART and DENIED IN PART. The Court DENIES summary judgment
18 as to claims by either Plaintiff alleging the discriminatory denial of a promotion in 2011 or 2012
19 under Title VII or the WLAD, but GRANTS summary judgment to Defendant as to all other
20 claims.
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26 member of the LGBT community. (Dkt. No. 96, Ex. C at 6.) However, she acknowledges that
she never reported those statements to Human Resources or other corporate officials. (Id. at 7.)
ORDER
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DATED this 18th day of February 2014.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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