Grummer v. Washington State Department of Corrections

• Court: District Court, W.D. Washington
• Decided: September 6, 2022
• Docket: 2:19-cv-00532
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 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. 13

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. 11

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 19

20 21 Dated this 6th day of September, 2022.

23 Robert S. Lasnik 23 United States District Judge 25 26 27 28