In Rippstein v. Boeing Company, et al, 2022 WL 1522155 (D.Ariz. May 13, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Defendant next argues that the three anonymous emails sent to Plaintiff’s work email address are not actionable because they are not sex-based discrimination. Plaintiff counters that through their references to her family, the emails in fact targeted her based on her being a woman and mother. But regardless of whether the emails were facially discriminatory, “acts contributing to a hostile work environment do not need to be specifically…sex-based in nature so long as there is some basis to infer that incidents neutral on their face were in fact discriminatory.” Gordwin, 2021 WL 5396086, at *6 (internal quotation marks omitted). For example, in Curtis v. City of Oakland, the conduct that formed the basis for an employee’s hostile work environment claim was largely neutral on its face, and the perpetrator of some of the events was unknown. 571 F. App’x 616, 617 (9th Cir. 2014). Still, the Ninth Circuit reversed the district court’s decision granting summary judgment in favor of the employer because “there was evidence in the record from which a reasonable jury could infer” that the employee was being targeted because of his race. Id. at 618. Likewise, here, although no perpetrator was ever identified, in light of the references to Plaintiff’s daughter and family along with the explicitly sex-based April 2018 note, a reasonable jury could infer that the emails were sent to Plaintiff because of her sex. Accordingly, the Court will consider the emails as part of Plaintiff’s hostile work environment claim.
Next, Defendant argues that the actionable conduct was not so severe or pervasive as to alter the conditions of employment and create an abusive working environment. If Defendant were correct that the only actionable conduct were the April 2018 note, that may be true. But Defendant is not correct. In addition to the anonymous emails that threatened Plaintiff and her family, the evidence in the record— when viewed in the light most favorable to Plaintiff—supports several other instances of harassment that could reasonably be considered sex-based. Those instances include, among others, comments made by a coworker about Plaintiff’s body, the closure of Defendant’s initial investigation because of Plaintiff’s purported “selective reporting”, and a message from one member of Defendant’s security staff to another in an email chain about Plaintiff asking if the recipient was “going to slap her around a little bit and see if she confesses”. A reasonable jury could conclude that the severity of the email containing a death threat together with the pattern of other conduct “so pollute[d] the workplace that it altered the conditions of [Plaintiff’s] employment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003); see Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (“[T]he required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” (internal quotation marks omitted)); Pryor v. United Air Lines, Inc., 791 F.3d 488, 496– 97 (4th Cir. 2015) (finding that non-pervasive racially tinged death threats were so severe that they could, on their own, engender a hostile work environment).
The court also held that there were genuine issues of material fact as to whether liability could be imputed to defendant. Defendant contended that that it “implemented reasonable investigative and safety measures that stopped any harassment of Plaintiff.”
This, however, did not end the inquiry:
The mere fact that harassment stops is not conclusive, as an employer’s “remedial obligation” is discharged only if “prompt, effective action” is taken. Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). Effectiveness is measured “by the twin purposes of ending the current harassment and deterring future harassment—by the same offender or others.” Id. Although it is a close question, as Defendant undisputedly implemented some remedial measures, the Court finds that there are genuine issues of material fact as to whether Defendant’s corrective measures were reasonably effective. In addition to the closure of Defendant’s initial investigation due to Plaintiff’s purported “selective reporting” and the email between the security staff mentioned above, Plaintiff has presented evidence that there was significant delay in Defendant’s discovery of two of the threatening emails, potentially resulting in the loss of evidence that could have resulted in identification of the perpetrator, and that MPD’s interviews of Plaintiff’s coworkers were delayed by Defendant. Based on this evidence, a reasonable jury could find that Defendant’s remedial actions were ineffective at promptly ending the harassment of Plaintiff or deterring future harassment of its employees. Defendant is not entitled to summary judgment on Plaintiff’s sex discrimination claims under Title VII and ACRA.