Read the Chesier case?linked to your module. ?Do you think the court was correct in finding that the ‘severe and pervasive’ element of the prima facie was not satisfied? ?Why or why not?

382 F.Supp.3d 918 United States District Court, D. Arizona.

Mary CHESIER, Plaintiff, v.

ON Q FINANCIAL INCORPORATED, Defendant.

No. CV-17-04034-PHX-DWL |

Signed April 18, 2019

Synopsis Background: Former employee brought action against employer, alleging hostile work environment in violation of Title VII. Employer moved for summary judgment, and employee moved for partial summary judgment.

The District Court, Dominic W. Lanza, J., held that supervisor’s conduct in sending sexually explicit messages was not sufficiently severe or pervasive to constitute hostile work environment.

Employer’s motion granted; employee’s motion denied.

Attorneys and Law Firms

*919 Robert Evan Trop, Law Office of Robert Evan Trop PLLC, Phoenix, AZ, for Plaintiff.

Jennifer Rachel Yee, Joshua Robert Woodard, Snell & Wilmer LLP, Phoenix, AZ, for Defendant.

ORDER

Dominic W. Lanza, United States District Judge

*920 INTRODUCTION

Mary Chesier1 worked for On Q Financial Incorporated (“On Q”) in an administrative capacity. One of her supervisors was Thomas Middleton, who served as On Q’s Vice President of Business Development. On March 20, 2017, Chesier and Middleton were engaged in a work-related discussion over an instant messaging app when the discussion veered off in a sexual direction. This detour was unexpected—they had not engaged in any prior discussions of a sexual nature. Over the course of three hours (with some breaks), both sent sexually explicit messages to each other, with Middleton asking questions about Chesier’s underwear, both parties discussing Middleton’s “dominance” in the bedroom, Chesier providing her measurements, and Middleton stating he wanted to engage in sexual conduct with Chesier. Although the text messages, when read in isolation, give the impression that Chesier was enjoying the exchange, Chesier contends she was actually shaking and crying during the episode and participated only because she wanted to appease her

boss. The very next morning, Chesier sent a distraught email to a coworker seeking assistance. The email culminated in a meeting later that day between Chesier and a member of On Q’s Human Resources department. On Q promptly fired Middleton. In this lawsuit, Chesier asserts a claim against On Q under Title VII of the Civil Rights Act of 1964, alleging she was subjected to a hostile working environment. Now pending before the Court is On Q’s motion for summary judgment, which argues that Chesier hasn’t satisfied two elements of her prima facie case and that it has separately established a “reasonable care” affirmative defense. (Doc. 61.) Chesier disagrees and has filed her own motion for partial summary judgment, arguing that the “reasonable care” affirmative defense is inapplicable in cases (such as this one) involving “sudden sexual harassment.” (Doc. 59.) For the following reasons, the Court grants On Q’s motion and denies Chesier’s motion as moot. Although the Court disagrees with On Q’s contention that Middleton’s conduct was not “unwelcome” as a matter of law—a rational jury could easily find that Chesier was mortified and that the power differential between her and Middleton explains why she adopted a playful tone during the exchange—the Court agrees with On Q that the conduct was not “sufficiently severe or pervasive” to trigger liability under Title VII. This case involves in single instance in which a supervisor sent improper messages to a subordinate. There was no physical contact. Although it is possible for a single incident of harassment to create liability, the Ninth Circuit has emphasized that the single incident must involve an “extremely severe” form of harassment and has identified rapes and other violent physical assaults as the only types of conduct that might qualify. The conduct at issue here —a single string of sexually-charged messages, *921 divorced from any physical contact—is simply not enough.

BACKGROUND

The following facts are undisputed: Chesier was hired by On Q on October 3, 2016. She received On Q’s employee handbook on November 2, 2016 and had electronic access to the handbook during her period of employment. This handbook included On Q’s anti-harassment policy, which provided that employees who feel they have been subjected to harassment should immediately report their concerns to their supervisor, Human Resources, or a member of senior management. Chesier and Middleton engaged in a conversation over a work instant message system on March 20, 2017. This conversation occurred over the course of three hours with some breaks. Both parties sent sexually explicit messages. Examples of these messages include: Middleton asking Chesier about her underwear and her describing them; Middleton asking to see Chesier’s underwear and Chesier responding maybe at a later date; both parties discussing Middleton’s “dominance” in the bedroom; Chesier providing her measurements, including height, weight, and bra size, to Middleton; Middleton stating he wanted to see Chesier’s breasts and suck on them; and Middleton stating multiple times he wanted to make Chesier “wet.” Chesier declined Middleton’s requests to see her underwear, “send [him] pics,” “see [her breasts] and suck on them and bite them,” and “let him feel.” That same day, Middleton sent Chesier a single text message saying he wanted to “feel [her] and suck on [her] tits,” “feel [her] and then taste [his] fingers,” and “make [her] put [her] wet fingers in [his] mouth.” She did not respond to the content of that message, stating instead: “Totally random thought/question. You pay for your daughters cell right? As the person who’s name it’s all done under etc. are you able to get into her texts and read them or anything? Like from the carriers web sight?” During the instant message exchange, Chesier described the conversation as having “a decent ebb and flow” and “some tit for tat.” She also told Middleton he could “ask all [he] want[ed].” Several times she expressed gratitude for his compliments and when Middleton stated, “thanks for playing along a little,” she replied, “[y]ou’re welcome lol.” She closed the exchange by noting she was “happy to help” and that the day had been “not too shabby for a [M]onday.” Chesier testified in her deposition that Middleton’s comments were unwelcome and that she was not a “willing participant” in the conversation. When asked about the “decent ebb and flow” statement, she claimed: “I think it more just says the conversation seems to be going back and forth, but it speaks nothing to the willingness of either participant.” She also contended: “He had asked if this was one-sided, and I was grasping for an answer that would again keep him appeased, but I didn’t want to actually say, ‘Yes, this is fine by me, because it truly wasn’t.’ ” And when asked if the conversation was “fine” with her, she stated: “I think it reflects somebody who is kind of deflecting and not wanting to answer that question.” Additionally, when asked about her message, “You can ask all you want,” she testified that she was “[t]rying to keep him

appeased and happy, just get through the day. I was trying to not give him any indication that I could be trouble for him.” Finally, she stated that she did not respond to the content of Middleton’s text message because she was “hoping to delay and deter him and distract him once again, rather than responding to the extremely vulgar text message.” *922 Chesier also testified in her deposition that as this conversation was happening, she was upset and crying at her desk. She further testified that she responded to Middleton “out of fear” and that she “was legitimately afraid of him if he were to get the vibe that [she] … could potentially threaten his job or cause problems for him there.” She stated: “[A]t that time I was legitimately sitting at my desk in tears, and I was shaking and I was just worried about trying to get through this day safely so I could get home and break down and figure out what to do.” Chesier admits there was never any unwelcome or unwanted physical touching between her and Middleton. She testified during her deposition that she and Middleton had established that anything physical was “absolutely off the table.” Chesier first complained of the incident the next morning when she sent an email, from her phone, to a co-worker named Erin Dueck (“Dueck”). This was the first time she complained to anyone of harassment at On Q. Dueck met with Chesier a few hours later. Kevin Grindle (“Grindle”), On Q’s Vice President of Human Resources at the time, also joined the conversation. When Chesier showed Grindle the transcript of the messages, he noted there was “some very concerning material in there.” After speaking with Dueck and Grindle, Chesier was allowed to go home, with pay, while On Q initiated an internal investigation. This investigation concluded on March 23, 2017, at which time On Q fired Middleton. Chesier voluntarily resigned on March 24, 2017—the day after Middleton was fired. She testified that she wanted to resign because she believed that other team members continued to owe loyalties toward Middleton and because she believed Middleton and another On Q employee may have had an intimate relationship. She had not been fired or reassigned or refused a promotion.

LEGAL STANDARD

A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party’s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If … [the] moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103. “Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “A genuine dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” United States v. JP Morgan Chase Bank Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $ 446,377.36, 835 F.3d 1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court “must view the evidence in the light most favorable to the nonmoving party and *923 draw all reasonable inference in the nonmoving party’s favor.” Rookaird, 908 F.3d at 459. Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

ANALYSIS

A. Title VII “Title VII of the Civil Rights Act of 1964 makes it ‘an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ ” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

Collepals.com Plagiarism Free Papers

Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.

Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS

Why Hire Collepals.com writers to do your paper?

Quality- We are experienced and have access to ample research materials.

We write plagiarism Free Content

Confidential- We never share or sell your personal information to third parties.

Support-Chat with us today! We are always waiting to answer all your questions.