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Nester v. Recreational Equipment, Inc.

United States District Court, D. Nevada

July 19, 2019

LEANNE NESTER, Plaintiff,
v.
RECREATIONAL EQUIPMENT, INC., Defendant.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Plaintiff Leanne Nester alleges that Defendant Recreational Equipment, Inc. (“REI”) fired her, and took other adverse employment actions against her, because she is a heterosexual woman who suffers from hyperthyroidism. (ECF No. 1.) She specifically alleges discrimination and retaliation regarding her hyperthyroidism, and a sexual harassment claim with a retaliation component-mostly directed at one of her former supervisors. (Id.) Before the Court is Defendant's motion for summary judgment on all of Plaintiff's claims (“Motion”) (ECF No. 34), [1] and motion to seal one of the exhibits to its Motion (“Motion to Seal”) (ECF No. 36). As further explained below, the Court will grant the Motion in its entirety-as to Plaintiff's disability-related claims because of her failure to exhaust her administrative remedies, as to Plaintiff's sexual harassment claim because she was not subjected to an objectively hostile work environment, and as to her retaliation claim because Plaintiff failed to proffer sufficient evidence of pretext to rebut the legitimate, non-retaliatory business reasons Defendant proffers for each of the alleged adverse employment actions it took against Plaintiff. The Court will also grant Defendant's Motion to Seal because Defendant provided compelling reasons to seal one exhibit to its Motion.[2]

         II. RELEVANT BACKGROUND[3]

         Defendant owns and operates retail stores that sell outdoor sports clothing and equipment, such as kayaks and hiking boots. Plaintiff worked in Defendant's Boca Park, Las Vegas, Nevada store as a sales specialist from approximately June 2013 until May 13, 2017, when she was terminated. (ECF No. 1 at 2.) The gravamen of Plaintiff's Complaint is that she was fired because she rebuffed an invitation for a date from a manager, who then engaged in a campaign of retaliation against her that culminated with her termination. (Id. at 2-6.) She further alleges that both that manager, and the store manager of the store where she worked, discriminated against her because she has a disability-hyperthyroidism-and then retaliated against her because she refused to carry a mobile point of sale device (“MPOS”) in contravention of a note she obtained from her doctor. (Id.) Thus, Plaintiff's claims break into two categories, disability discrimination and related retaliation in violation of the Americans with Disabilities Act, as amended by the ADA Amendments Act, 42 U.S.C. § 12101, et seq. (the “ADA”), and hostile work environment sexual harassment and related retaliation in violation of Title VII the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”). (Id. at 1.) While Plaintiff's factual allegations regarding these claims overlap, the Court will briefly describe them somewhat separately below in the interest of clarity. But the Court will first describe the facts relevant to Plaintiff's contested termination.

         A. Plaintiff's Employment Termination

         Defendant offers a “ProDeal” program, which allows employees to buy discounted or wholesale-priced merchandise from Defendant and its vendors.[4] (ECF No. 34 at 4; see also ECF No. 34-1 at 177.) “There are two types of ProDeals: Vendor ProDeals (which are offered and sold directly from one of REI's many participating vendors) and REI Gear & Apparel ProDeals[, ]” which apply to REI-branded merchandise and Novara bicycles. (ECF No. 34-1 at 65.)

         The former-a Vendor ProDeal-is relevant to Plaintiff's employment termination. Specifically, Plaintiff purchased a child's personal flotation device (“PFD”) from Northwest River Supplies (“NRS”), for $22.55, for her then-boyfriend's son, using an NRS (vendor) ProDeal. (ECF Nos. 34 at 26-27, 34-1 at 495, 35-1 at 463, 628.) However, that particular ProDeal was limited to “Employee, Spouse, and Dependent children.” (ECF No. 34-1 at 453.) The phrase “Dependent children” was not defined anywhere in the applicable NRS ProDeal, or Defendant's policies. (ECF No. 35-1 at 67-69.) Plaintiff admitted in a written statement completed relatively contemporaneously to the purchase, and in connection with the investigation leading to her termination, that she purchased the PFD for her “stepson/nephew, ” writing “[i]t was wrong and Im [sic] Sorry [sic].” (ECF No. 34-1 at 495.) Plaintiff further testified at her deposition that the child for whom she purchased the PFD was not her natural child, she was not married to his father, she had not adopted him, and she never claimed him as a dependent for tax purposes. (ECF No. 35-1 at 215-227.) In addition, Defendant proffered a Performance Improvement Process Action form dated the day of Plaintiff's termination indicating she was involuntarily terminated for violating this particular NRS ProDeal. (ECF No. 34 at 26.)

         While it is undisputed that a violation of Defendant's ProDeal policy is a terminable offense, the parties dispute whether every ProDeal policy violation will always result in termination. Plaintiff signed a document shortly after she started at Defendant that said, “I have read and understand the Prodeal and employee discount policy for REI. I understand that REI performs routine audits of employee purchases and periodically reviews full purchase history. Failure to abide by the rules of the program may result in disciplinary action up to and including termination of employment.” (ECF No. 34-1 at 81.) Plaintiff's former store manager Michael Harcarik stated at his deposition that, “[t]ypically, a ProDeal violation would result in immediate termination.” (ECF No. 35-1 at 69.) Defendant's employee handbook also states that ProDeal violations are a terminable offense. (ECF No. 34-1 at 67 (“As much as REI hates to lose great employees, if you misuse the employee discount or ProDeal program, your employment may be terminated immediately without being given a “warning” or the opportunity to improve.”).) But Plaintiff proffered two declarations from her former coworkers, who said that they knew of other employees who violated the ProDeal policy, or had violated the ProDeal policy themselves, but were not terminated. (ECF No. 35-1 at 176-181.) Further, Harcarik testified at his deposition that store managers retain some discretion over termination decisions in the event of a ProDeal policy violation. (ECF No. 34-1 at 185-191.)

         B. Disability-Related Claims

         As to Plaintiff's ADA claims, Plaintiff was diagnosed in 2013 with Grave's disease and its resulting hyperthyroidism, where the thyroid overproduces hormones. (ECF Nos. 34-1 at 102, 35-1 at 363-64, 368-69.) On July 14, 2016, she got a doctor's note (the “Doctor's Note”) stating: “Please be advised that this patient has medical concerns/condition that preclude the persistent use of any device that emits electromagnetic frequency for prolonged periods (>3hr continuous). For this reason, phone is a device that may present concern and or/potential hazard to the above.” (ECF No. 34-1 at 293.) Plaintiff interpreted the Doctor's Note to mean that she could not carry an MPOS while at work. (ECF No. 35-1 at 53, 352-55.) Plaintiff therefore generally did not carry an MPOS, and would hide any MPOSs she was given around the store so that she did not have to carry one. (Id. at 360.) She gave the Doctor's Note to her store manager, Harcarik, who added it to her file. (Id. at 351.)

         However, one time, another manager, Sarah Webster (located in between Plaintiff and Harcarik in the management hierarchy) asked Plaintiff to use her MPOS, and Plaintiff said she was not carrying one. (Id. at 347-48.) Webster told Plaintiff that meant she was out of uniform and could be terminated for not carrying a MPOS. (Id. at 348.) On several other occasions, some of which were after she gave Harcarik the Doctor's Note, Webster told Plaintiff she had to carry the MPOS. (Id. at 361.) Plaintiff testified she told Webster she gave Harcarik a doctor's note indicating she did not have to carry a MPOS twice, but Webster still asked her to check one out. (Id. at 360.)

         C. Sexual Harassment Claim

         Plaintiff alleges that Webster asked her out on a date shortly after Webster was transferred to the store where Plaintiff worked. (ECF No. 6 at 2-3.) According to Plaintiff, on one occasion, when Plaintiff was leaving her shift, Webster held the store entrance door open for her. (ECF No. 35-1 at 335.) Then Webster followed Plaintiff out the door. (Id. at 335-36.) Webster said to Plaintiff, “go trail running with me.” (Id. at 336.) Plaintiff explained in response that she was “not really a runner, ” and told Webster to see if another employee, who Plaintiff knew liked trail running, would go with her instead. (Id.) Webster responded that she “didn't ask [the other employee]. I asked you.” (Id.) Plaintiff backed away as their conversation continued, and eventually turned around and walked away. (Id.) At one point, as Plaintiff was moving away from Webster, Webster said “I see how you are.” (Id.) Plaintiff perceived this conversation as a request for a date because of the way Webster asked her, and her body language-not because Webster ever used the word date. (Id. at 338-42.)

         Plaintiff reported this conversation to Harcarik shortly after it happened. (Id. at 343-44.) Harcarik told her, “[y]ou have my permission to skip the chain of command and come to me if she is inappropriate anymore to you.” Plaintiff did not report the conversation to anyone else, made no written report about it, and Webster never asked Plaintiff out on a date on any other occasion. (Id. at 344-47.) Harcarik checked in with Plaintiff weekly about her interactions with Webster, to make sure Webster was being appropriate, and that Plaintiff's concerns were being addressed. (Id. at 536-38.) However, Plaintiff alleges that Webster nevertheless began a campaign of harassment and retaliation against her after the conversation that Plaintiff perceived to be a request for a date. (Id. at 347-48.)

         D. Complaint to the U.S. Equal Employment Opportunity Commission (“EEOC”)

         Shortly after she was terminated, Plaintiff submitted a questionnaire to the EEOC (the “Questionnaire”). (ECF No. 34-1 at 497.) In response to the question, “Do You Have a Disability?” Plaintiff checked the box for yes. (Id.) However, in response to the question, “What is the reason (basis) for your claim of employment discrimination?” Plaintiff only checked the boxes for “Sex” and “Retaliation, ” and did not check the box for “Disability.” (Id. at 499.) Later, in a section of the form prefaced by the instructions, “Answer questions 9-12 only if you are claiming discrimination based on disability[, ]” Plaintiff checked a box labelled, “Yes, I have a disability, ” but otherwise left questions 9-12 entirely blank, including lines allowing for a narrative answer. (Id. at 500.) At the conclusion of the form, Plaintiff checked Box 2 indicating she would like to immediately file a charge of discrimination. (Id. at 501.)

         Plaintiff later received a right-to-sue letter from the EEOC, with a box checked stating that “the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” (Id. at 503.) The right-to-sue letter indicates nothing about the substance of Plaintiff's allegations. (Id.) The EEOC sent Defendant a Notice of Charge of Discrimination (“the Charge”) stemming from Plaintiff's questionnaire. (Id. at 504.) The Charge notified Defendant of claims of discrimination “based on Retaliation and Sex, and involve issues of Harassment, Discipline, and Discharge that are alleged to have occurred on or about May 13, 2017.” (Id.) There is no mention of a disability, or any disability-related discrimination, on the face of this document. (Id. at 504-5.)

         III. LEGAL STANDARD

         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.

         IV. ...


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