Grummer v. Washington State Department of Corrections

[4] UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] TRESSA GRUMMER, Cause No. C19-0532RSL [8] Plaintiff, ORDER DENYING [9] v. DEFENDANTS’ MOTIONS 10 IN LIMINE WASHINGTON STATE DEPARTMENT OF 11 CORRECTIONS, et al., [12] Defendants. [14] This matter comes before the Court on the “State Defendants’ Motions in Limine.” Dkt. [15] # 33. Defendants seek to exclude testimony and evidence related to (a) Northwest University’s [16] 17 investigation of plaintiff’s claims against defendant Carsrud and (b) the three-and-a-half month [18] delay between plaintiff’s complaint and the Department of Corrections’ investigation thereof. [19] Under Washington law, an employer is liable for a discriminatory work environment [20] 21 created by a plaintiff’s supervisor if the employer “(a) authorized, knew, or should have known [22] of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” [23] Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 407 (1985). The employer’s duty is to take [23] 25 remedial action that is “reasonably calculated to end the harassment.” Id. The Department of [26] Corrections intends to argue that it took prompt and adequate corrective action to address the [27] alleged discriminatory conduct based largely on the fact that it allowed plaintiff to transition her [28] 1 internship supervision from Carsrud to another psychologist as soon as she complained of sexual [2] harassment. Defendants argue that, under Washington law, the fact that the harassment never [3] happened again establishes that the employer’s response was reasonable and adequate as a [4] 5 matter of law, citing Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 794 (2004), and [6] Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 857 (2000). The Department of [7] Corrections therefore seeks to exclude all evidence regarding shortcomings in its response to [8] 9 plaintiff’s complaint. [10] In Francom, the Court of Appeals affirmed the trial court’s grant of summary judgment [11] in favor of Costco, holding that “[t]he fact that the conduct never occurred again after October [12] 13 1993 is proof that Costco’s response was reasonable and adequate as a matter of law.” 98 Wn. 14 App. at 857. In repeating that holding a few years later, however, the Court of Appeals cited [15] federal case law for the proposition that the adequacy of an employer’s response “will be [16] 17 measured by the twin purposes of ending the current harassment and deterring future harassment [18] – by the same offender or others.” Perry v. Costco, 123 Wn. App. 783, 794 (2004) (quoting [19] Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995). Thus, the fact that the [20] 21 harassment never occurred again, while clearly relevant when evaluating the reasonableness and [22] adequacy of the employer’s response, is not necessarily dispositive where there is evidence that [23] the response was so weak that it either ratified the past conduct or would fail to dissuade future [23] 25 harassment in the workplace. [26] There is evidence in this case that the Department of Corrections’ response was entirely [27] passive, leaving plaintiff to her own devices or the protections of third parties to extricate herself [28] 1 from defendant Carsrud’s sphere of influence, delaying an investigation for over three months [2] until forced to act, and arguably performing an investigation that was more focused on [3] protecting its staff than ensuring a nondiscriminatory work environment. The jury is entitled to [4] 5 consider this evidence when determining whether the Department took reasonable steps to [6] address plaintiff’s complaint, to protect plaintiff and other interns from sexual harassment, [7] and/or to deter future harassers. While the law does not require that the response to sexual [8] 9 harassment complaints be perfect, it does require that remedial action be “reasonably calculated [10] to prevent further harassment.” Perry, 123 Wash. App. at 795 . [12] 13 For all of the foregoing reasons, defendants’ motions in limine (Dkt. # 33) are DENIED. [14] Plaintiff will be permitted to present evidence that challenges the employer’s assertion that it [15] took reasonable and adequate corrective action. Whether and the extent to which the competing [16] 17 investigations and determinations will be admitted at trial has yet to be determined. The parties [18] shall be prepared to discuss this issue shortly after the jury is selected [20] 21 Dated this 6th day of September, 2022. [23] Robert S. Lasnik 23 United States District Judge