This is Nuts: Retaliation Claim, Based in Part of “Harassment” Due to Employee’s Nut Allergy, Survives Summary Judgment

In Villalobos v. Basis Educational Group LLC, No. CV-20-00850-PHX-DJH, 2022 WL 3647832 (D.Ariz. Aug. 24, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claims of retaliation asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

From the decision:

Title VII and § 1981 also share the same elements for a claim of retaliation, which that Plaintiff (1) engaged in a protected activity, (2) suffered an “adverse employment action,” and (3) that a “causal link” exists between the two. Surrell v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).

Plaintiff argues that she engaged in a protected activity when she complained about Ms. Campbell’s conduct to Defendant and to the EEOC. (Doc. 54 at 13). As a result, she claims to have suffered adverse employment actions including: (1) the “temper tantrum” that Ms. Campbell threw, (2) rude treatment in general by Ms. Campbell, (3) accusations by Ms. Campbell that Plaintiff was failing in her duties, and (4) when Ms. Campbell ate a “nut bar” and disposed of it at Plaintiff’s desk, which caused Plaintiff to have an allergic reaction.

Defendant argues that Ms. Campbell’s actions are not the type of conduct that constitutes an adverse employment action. But the Court disagrees. While it is true that “[n]ot every insult or harassing comment will” give rise to an adverse employment action, the Ninth Circuit that harassing behavior may be actionable when it is “ ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ”

Here, the Court is persuaded that the incident involving the nut bar gives rise to harassment. Plaintiff’s deposition testimony claims that Ms. Campbell knew that she was allergic to nuts and that, after Plaintiff submitted a complaint to Defendant, Ms. Campbell stood over Plaintiff’s desk, took a bite of the bar, threw the wrapper away in the trash and started “trying to type” on Plaintiff’s laptop. Plaintiff suffered an allergic reaction and “ended up going to urgent care”.

Defendant argues that Plaintiff fails to establish that her complaint was the cause of this action. But the Court finds otherwise. A causal link may be inferred from “proximity in time” between when a plaintiff engaged in a protected activity and the adverse employment action. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Both Plaintiff’s complaint to Defendant and the incident with the nut bar are claimed to have happened in the same month. (Doc. 58-4 at 12). This is close enough to create a genuine issue of fact as to causation.

[Cleaned up.]

Based on this, the court held that there were genuine disputes of material facts such that summary judgment ws not appropriate on Plaintiff’s retaliation claim.

Share This: