United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA, UNITED SLATES DISTRICT JUDGE
INTRODUCTION
Mary
Chesier[1] 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, 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.”
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
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