Chesier v. On Q Financial Incorporated

          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 ...