NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2025 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JAMIE ELWARD, No. 23-4143 D.C. No. Plaintiff - Appellant, 3:22-cv-05645-BHS v. MEMORANDUM* SEALY INC,
Defendant - Appellee.
JAMIE ELWARD, No. 23-4421 Plaintiff - Appellee, D.C. No. 3:22-cv-05645-BHS v.
SEALY INC,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Argued and Submitted March 25, 2025 Seattle, Washington
Before: McKEOWN and OWENS, Circuit Judges, and KENDALL, District Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. Jamie Elward appeals from the district court’s order granting summary
judgment to her former employer Sealy Inc. on her (1) quid pro quo and (2) hostile
work environment sexual harassment claims under the Washington Law Against
Discrimination (“WLAD”). See Wash. Rev. Code § 49.60, et seq. Elward also
moves to certify a question to the Washington Supreme Court. Sealy appeals from
the district court’s denial of its motion for sanctions.
We have jurisdiction under 28 U.S.C. § 1291. We reverse the grant of
summary judgment, deny the motion for certification, and affirm the denial of
sanctions. Because the parties are familiar with the facts, we need not recount
them here.
We review de novo the district court’s grant of summary judgment to Sealy
on Elward’s sexual harassment claims. Clarkson v. Alaska Airlines, Inc., 59 F.4th
424, 432 (9th Cir. 2023). Summary judgment is “proper only where there is no
genuine issue of any material fact or where viewing the evidence and the
inferences which may be drawn therefrom in the light most favorable to the
adverse party, the movant is clearly entitled to prevail as a matter of law.” Id.
(internal citation omitted); Fed. R. Civ. P. 56(a). Here, disputes of material fact
preclude summary judgment on Elward’s quid pro quo and hostile work
environment claims.
As to Elward’s quid pro quo claim, disputes of fact remain regarding
whether her supervisor, Alfredo Perez, conditioned a work trip to a supervisor’s
2 training conference on Elward’s agreement to have sex with him, and whether
Perez had the authority to get Elward onto the trip. A quid pro quo claim requires
showing a supervisor’s “extortion or attempted extortion of sexual favors in
exchange . . . for a job or job benefit.” DeWater v. State, 921 P.2d 1059, 1062
(Wash. 1996). Viewing the evidence in the light most favorable to Elward, Perez’s
repeated and vulgar comments to Elward about having sex with her during the
conference were implicit requests for sex in exchange for going on the trip and
were not consensual “jokes.” The trip was for supervisors—a position Elward
aspired to—and was therefore a benefit. Despite Perez’s boss, Sean Coatney,
indicating that Elward could not attend, Perez continued to imply that he had
leverage to get Elward approved, and suggested she could come on the trip
regardless because he would pay for her ticket with the company card if she would
stay in a room with him.
As to Elward’s hostile work environment claim, the district court correctly
held that the Faragher-Ellerth defense applies to the WLAD. Sangster v.
Albertson’s, Inc., 991 P.2d 674, 679–80 (2000); In re Kirkland, 915 F.2d 1236,
1239 (9th Cir. 1990) (holding federal courts follow the state’s intermediate
appellate courts absent convincing evidence the state supreme court would decide
differently). Elward made a sufficient showing to survive summary judgment and
genuine questions of fact prevent Sealy’s assertion of the Faragher-Ellerth
defense.
3 A hostile work environment claim requires “(1) offensive, unwelcome
contact that (2) occurred because of sex or gender, (3) affected the terms or
conditions of employment, and (4) can be imputed to the employer.” Sangster,
991 P.2d at 678. Sealy conceded the first two elements for the purpose of its
summary judgment motion, and Elward raises genuine disputes of fact as to the
remaining two. The harassment affected Elward’s terms and conditions of
employment as they were objectively abusive—Perez propositioned his
subordinate Elward for sex, recounted what sex acts he wanted to perform on her,
and touched her without her consent—and were subjectively perceived as abusive
by Elward, who was upset by this conduct and reported it. The conduct is imputed
to Sealy as Perez was Elward’s manager.
Questions of fact preclude applying the Faragher-Ellerth defense, which
requires meeting two prongs. Viewing the facts in the light most favorable to
Elward, Sealy did not take reasonable care to prevent sexual harassment when it
failed to monitor Perez for sexual harassment after prior substantiated claims and a
written warning. Further, Elward did not unreasonably delay where she waited
only a few days to gather evidence against her harasser and still reported Perez
within the same work week. Elward alleged she was harassed on Monday,
November 15; Wednesday, November 17; and Thursday, November 18, 2021. She
reported on Friday, November 19, 2021. A jury could find the delay was not
unreasonable as Perez deterred Elward from ever “going upstairs” where human
4 resources was located, making it more difficult for Elward to reach human
resources to report.
Elward moved to certify the question of Faragher-Ellerth’s applicability to
the WLAD to the Washington Supreme Court. Washington allows for federal
certification when “it is necessary to ascertain the local law of this state in order to
dispose of such proceeding and the local law has not been clearly determined.”
Wash. Rev. Code § 2.60.020. Certification is not necessary to ascertain the law as
there is no clear conflict among Washington courts on the application of the
Faragher-Ellerth defense to the WLAD. Syngenta Seeds, Inc. v. County of Kauai,
842 F.3d 669, 681 (9th Cir. 2016) (holding “certification is unnecessary” where the
relevant test was clear despite not having been applied by the state’s supreme
court). There is also a strong presumption in the Ninth Circuit against certification
where the party that lost below—Elward—did not seek certification until after an
unfavorable ruling by the district court. Hinojos v. Kohl’s Corp., 718 F.3d 1098,
1108 (9th Cir.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2025 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JAMIE ELWARD, No. 23-4143 D.C. No. Plaintiff - Appellant, 3:22-cv-05645-BHS v. MEMORANDUM* SEALY INC,
Defendant - Appellee.
JAMIE ELWARD, No. 23-4421 Plaintiff - Appellee, D.C. No. 3:22-cv-05645-BHS v.
SEALY INC,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding
Argued and Submitted March 25, 2025 Seattle, Washington
Before: McKEOWN and OWENS, Circuit Judges, and KENDALL, District Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation. Jamie Elward appeals from the district court’s order granting summary
judgment to her former employer Sealy Inc. on her (1) quid pro quo and (2) hostile
work environment sexual harassment claims under the Washington Law Against
Discrimination (“WLAD”). See Wash. Rev. Code § 49.60, et seq. Elward also
moves to certify a question to the Washington Supreme Court. Sealy appeals from
the district court’s denial of its motion for sanctions.
We have jurisdiction under 28 U.S.C. § 1291. We reverse the grant of
summary judgment, deny the motion for certification, and affirm the denial of
sanctions. Because the parties are familiar with the facts, we need not recount
them here.
We review de novo the district court’s grant of summary judgment to Sealy
on Elward’s sexual harassment claims. Clarkson v. Alaska Airlines, Inc., 59 F.4th
424, 432 (9th Cir. 2023). Summary judgment is “proper only where there is no
genuine issue of any material fact or where viewing the evidence and the
inferences which may be drawn therefrom in the light most favorable to the
adverse party, the movant is clearly entitled to prevail as a matter of law.” Id.
(internal citation omitted); Fed. R. Civ. P. 56(a). Here, disputes of material fact
preclude summary judgment on Elward’s quid pro quo and hostile work
environment claims.
As to Elward’s quid pro quo claim, disputes of fact remain regarding
whether her supervisor, Alfredo Perez, conditioned a work trip to a supervisor’s
2 training conference on Elward’s agreement to have sex with him, and whether
Perez had the authority to get Elward onto the trip. A quid pro quo claim requires
showing a supervisor’s “extortion or attempted extortion of sexual favors in
exchange . . . for a job or job benefit.” DeWater v. State, 921 P.2d 1059, 1062
(Wash. 1996). Viewing the evidence in the light most favorable to Elward, Perez’s
repeated and vulgar comments to Elward about having sex with her during the
conference were implicit requests for sex in exchange for going on the trip and
were not consensual “jokes.” The trip was for supervisors—a position Elward
aspired to—and was therefore a benefit. Despite Perez’s boss, Sean Coatney,
indicating that Elward could not attend, Perez continued to imply that he had
leverage to get Elward approved, and suggested she could come on the trip
regardless because he would pay for her ticket with the company card if she would
stay in a room with him.
As to Elward’s hostile work environment claim, the district court correctly
held that the Faragher-Ellerth defense applies to the WLAD. Sangster v.
Albertson’s, Inc., 991 P.2d 674, 679–80 (2000); In re Kirkland, 915 F.2d 1236,
1239 (9th Cir. 1990) (holding federal courts follow the state’s intermediate
appellate courts absent convincing evidence the state supreme court would decide
differently). Elward made a sufficient showing to survive summary judgment and
genuine questions of fact prevent Sealy’s assertion of the Faragher-Ellerth
defense.
3 A hostile work environment claim requires “(1) offensive, unwelcome
contact that (2) occurred because of sex or gender, (3) affected the terms or
conditions of employment, and (4) can be imputed to the employer.” Sangster,
991 P.2d at 678. Sealy conceded the first two elements for the purpose of its
summary judgment motion, and Elward raises genuine disputes of fact as to the
remaining two. The harassment affected Elward’s terms and conditions of
employment as they were objectively abusive—Perez propositioned his
subordinate Elward for sex, recounted what sex acts he wanted to perform on her,
and touched her without her consent—and were subjectively perceived as abusive
by Elward, who was upset by this conduct and reported it. The conduct is imputed
to Sealy as Perez was Elward’s manager.
Questions of fact preclude applying the Faragher-Ellerth defense, which
requires meeting two prongs. Viewing the facts in the light most favorable to
Elward, Sealy did not take reasonable care to prevent sexual harassment when it
failed to monitor Perez for sexual harassment after prior substantiated claims and a
written warning. Further, Elward did not unreasonably delay where she waited
only a few days to gather evidence against her harasser and still reported Perez
within the same work week. Elward alleged she was harassed on Monday,
November 15; Wednesday, November 17; and Thursday, November 18, 2021. She
reported on Friday, November 19, 2021. A jury could find the delay was not
unreasonable as Perez deterred Elward from ever “going upstairs” where human
4 resources was located, making it more difficult for Elward to reach human
resources to report.
Elward moved to certify the question of Faragher-Ellerth’s applicability to
the WLAD to the Washington Supreme Court. Washington allows for federal
certification when “it is necessary to ascertain the local law of this state in order to
dispose of such proceeding and the local law has not been clearly determined.”
Wash. Rev. Code § 2.60.020. Certification is not necessary to ascertain the law as
there is no clear conflict among Washington courts on the application of the
Faragher-Ellerth defense to the WLAD. Syngenta Seeds, Inc. v. County of Kauai,
842 F.3d 669, 681 (9th Cir. 2016) (holding “certification is unnecessary” where the
relevant test was clear despite not having been applied by the state’s supreme
court). There is also a strong presumption in the Ninth Circuit against certification
where the party that lost below—Elward—did not seek certification until after an
unfavorable ruling by the district court. Hinojos v. Kohl’s Corp., 718 F.3d 1098,
1108 (9th Cir. 2013), as amended on denial of reh’g and reh’g en banc. We deny
the motion for certification.
Finally, we review for abuse of discretion the district court’s denial of
Sealy’s motion for sanctions under Federal Rule of Civil Procedure 37(e) based on
Elward’s spoliation of the recordings she made of Perez. Liberty Ins. Corp. v.
Brodeur, 41 F.4th 1185, 1189 (9th Cir. 2022). Though Elward improperly lost or
edited the audio recordings, the district court did not abuse its discretion in denying
5 Sealy’s requested sanction of dismissing Elward’s complaint. Dismissal is only
permitted when the court finds “the [spoiling] party acted with the intent to deprive
another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2).
The district court did not find intentional destruction here and thus did not abuse its
discretion in denying Sealy’s request for dismissal.
We REVERSE and REMAND the grant of summary judgment to Sealy on
the quid pro quo and hostile work environment claims and accordingly VACATE
the district court’s award of costs to Sealy. We DENY Elward’s motion for
certification of a question to the Washinton Supreme Court and AFFIRM the
denial of Sealy’s motion for sanctions.
Costs on appeal are awarded to Elward.