Rippstein v. Boeing Company

• Court: District Court, D. Arizona
• Decided: May 13, 2022
• Docket: 2:20-cv-02216
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Erin Rip pstein, ) No. CV-20-02216-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Boeing Company, et al., ) 12 ) 13 Defendant(s). ) ) 14 )

15 Before the Court is Defendant The Boeing Company’s Motion for Summary 16 Judgment (Doc. 54). For the following reasons, the Motion will be granted in part and 17 denied in part.1 18 I. BACKGROUND 19 Plaintiff Erin Rippstein worked as a software engineer for Defendant The Boeing 20 Company for ten years beginning in June 2009. (Doc. 1-4 at 7). On December 14, 2015 21 and again on April 24, 2018, Plaintiff found anonymous notes on her desk with lewd 22 messages about her body and her clothing. (Doc. 1-4 at 7–8). Around July 19, 2018, 23 Plaintiff learned that a photo of her was missing from a coworker’s cubicle. (Doc. 63 24 ¶ 20). After that, Defendant’s Corporate Investigations team opened an investigation. 25 (Doc. 63 ¶ 24). 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 On October 12, 2018, Plaintiff received a message to her work email address from 2 an unfamiliar non-Boeing email address that read, “Consider this your 2 weeks notice 3 from boeing, you have 2 weeks to quit or else you’ll regret it I’m not joking around 4 anymore if you know what’s good for you you’ll leave if you care at all for you and ur 5 family.” (Doc. 63 ¶ 28). Defendant’s Threat Management Team (“TMT”) met that day to 6 assess the threat and determine a plan of action. (Doc. 63 ¶ 30). One aspect of that plan 7 involved rerouting emails with similar key words, domains, and addresses to a “trace” 8 inbox monitored by a member of Defendant’s forensics team. (Doc. 63 ¶ 34). In addition, 9 on October 15, 2018, Plaintiff filed a report with the Mesa Police Department (“MPD”), 10 which launched an investigation. (Doc. 63 ¶¶ 37, 40). 11 On December 22, 2018, another threatening message was sent to Plaintiff’s work 12 email address—but was rerouted to the trace inbox—stating, “I watch you with your 13 daughter and alone and at work You need to leave boeing Mesa.” (Doc. 1-4 at 9). 14 Defendant informed the MPD of the email on January 4, 2019, and Plaintiff was 15 informed of the email on January 7, 2019. (Doc. 63 ¶¶ 48, 49). 16 On February 5, 2019, a member of Defendant’s forensics team found another 17 email that had been sent to Plaintiff’s work email address and rerouted to the trace inbox 18 on November 1, 2018 stating, “I will end it for you Either quit your job at Boeing Mesa 19 or die.” (Doc. 63 ¶¶ 58, 59). That day, Defendant alerted MPD of the email, and the TMT 20 elevated the threat level. (Doc. 63 ¶¶ 61, 62). 21 By the end of February 2019, MPD had exhausted its leads based on digital 22 evidence and sought to interview Plaintiff’s coworkers. (Doc. 63 ¶ 67). In-person 23 interviews at Boeing’s campus took place in May 2019. (Doc. 63 ¶ 68). 24 In the meantime, twice in March 2019, Plaintiff’s car had a flat tire. (Doc. 1-4 at 25 9). On the second occasion, the flat tire was caused by a piece of metal resembling a 26 blade. (Doc. 63 ¶ 66). 27 On July 2, 2019, Plaintiff began a leave of absence to seek medical care for her 28 panic and anxiety. (Doc. 63 ¶ 71). On July 11, 2019, Defendant closed its investigation. 1 (Doc. 63 ¶ 122). On August 9, 2019, Plaintiff left her job with Defendant. (Doc. 63 ¶ 72). 2 On October 3, 2019, Plaintiff filed an administrative charge of discrimination, sexual 3 harassment, and retaliation against Defendant. (Doc. 63 ¶ 74). 4 On August 25, 2020, Plaintiff filed a Complaint against Defendant in Maricopa 5 County Superior Court. (Doc. 1-4 at 5). On November 18, 2020, Defendant removed the 6 case to this Court. (Doc. 1). On March 4, 2022, after completion of discovery, Defendant 7 filed the instant Motion for Summary Judgment, which has been fully briefed. (Docs. 54, 8 62, 64). 9 II. LEGAL STANDARD 10 Summary judgment is appropriate if “the movant shows that there is no genuine 11 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 12 Fed. R. Civ. P. 56(a). A party seeking summary judgment always bears the initial burden 13 of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. 14 Catrett, 477 U.S. 317, 323 (1986). The moving party can satisfy this burden by 15 demonstrating that the nonmoving party failed to make a showing sufficient to establish 16 an element essential to that party’s case on which that party will bear the burden of proof 17 at trial. See id. at 322–23. When considering a motion for summary judgment, a court 18 must view the factual record and draw all reasonable inferences in a light most favorably 19 to the nonmoving party. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). 20 III. DISCUSSION 21 Plaintiff’s Complaint alleges six counts against Defendant: (1) hostile work 22 environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 23 42 U.S.C. § 2000e-2(a)(1); (2) retaliation in violation of Title VII, 42 U.S.C. § 2000e- 24 3(a); (3) retaliation in violation of the Arizona Employment Protection Act (“AEPA”), 25 A.R.S. § 23-1501(A)(3)(c)(2); (4) discrimination and harassment in violation of the 26 Arizona Civil Rights Act (“ACRA”), A.R.S. § 41-1463; (5) retaliation in violation of the 27 ACRA, A.R.S. § 41-1464; and (6) intentional infliction of emotional distress (“IIED”). 28 (Doc. 1-4 at 5). The ACRA is “generally identical” to Title VII, so the Court will address 1 the ACRA claims together with their corresponding Title VII claims. Higdon v. 2 Evergreen Int’l Airlines, Inc., 673 P.2d 907, 909 n.3 (Ariz. 1983); see also Bodett v. 3 CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004). In addition, an AEPA retaliation claim 4 uses the same framework as a Title VII retaliation claim. See Whitmire v. Wal-Mart 5 Stores Inc., 359 F. Supp. 3d 761, 796 (D. Ariz. 2019). The Court will therefore begin by 6 addressing the hostile work environment sex discrimination claims, followed by the 7 retaliation claims, and finally, the IIED claim. 8 a. Sex Discrimination 9 “A plaintiff asserting a Title VII claim under a hostile work environment theory 10 must show (1) the existence of a hostile work environment to which the plaintiff was 11 subjected, and (2) that the employer is liable for the harassment that caused the hostile 12 environment to exist.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006). To meet the 13 first prong, the plaintiff must show that “(1) she was subjected to verbal or physical 14 conduct of a sexual nature, (2) this conduct was unwelcome, and (3) this conduct was 15 sufficiently severe or pervasive to alter the conditions of employment and create an 16 abusive working environment.” Id. (internal quotation marks and alteration omitted). 17 Under the second prong, the employer is not liable for harassment by a non-supervisory 18 employee if it takes “corrective measures . . . reasonably calculated to end the 19 harassment” considering “the employer’s ability to stop the harassment and the 20 promptness of the response.” Id. at 539–40 (internal quotation marks omitted); see 21 Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). Here, Defendant argues 22 that some of the conduct Plaintiff cites as discriminatory is not actionable because it is 23 time barred or not sexual in nature, that the actionable conduct was not sufficiently severe 24 or pervasive, and that regardless, Defendant took reasonable corrective measures that 25 stopped the harassment. 26 First, Defendant argues that the December 2015 note cannot be considered 27 because it is time barred. (Doc. 54 at 11). A Title VII discrimination claim “will not be 28 sustained if it is based on an event . . . that occurred more than 300 days before the filing 1 of a charge.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998); see 2 42 U.S.C. § 2000e-5(e)(1). A similar 180-day limitation period applies to ACRA claims. 3 A.R.S. § 41-1481(A); see Gordwin v. Amazon.com Inc., No. CV-21-00888-PHX-SPL, 4 2021 WL 5396086, at *3 (D. Ariz. Nov. 17, 2021). Still, because hostile work 5 environment claims “are based on the cumulative effect of individual acts,” as long as an 6 act contributing to the claim occurs within the time limit, “the entire time period of the 7 hostile environment may be considered by a court for the purposes of determining 8 liability” on those claims. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 117 9 (2002). For Morgan’s continuing violation doctrine to apply, “the acts about which an 10 employee complains [must be] part of the same actionable hostile work environment 11 practice.” Id. at 120. In making that determination, “a court is to consider whether the 12 conduct was sufficiently severe or pervasive and whether the earlier and later events 13 amounted to the same type of employment actions, occurred relatively frequently, or 14 were perpetrated by the same managers.” Day v. LSI Corp., 174 F. Supp. 3d 1130, 1164 15 (D. Ariz. 2016) (quoting Morgan, 536 U.S. at 115). “The continuous violations must be 16 more than episodic; they must be sufficiently continuous and concerted in order to be 17 deemed pervasive.” Sheikh-Hassan v. United Airlines, Inc., No. 98-15114, 1999 WL 18 137336, at *6 (9th Cir. 1999) (internal quotation marks omitted) (holding that summary 19 judgment was properly granted where there was no evidence that the discriminatory acts 20 alleged came from the same source and where there was a three-year gap between 21 discriminatory incidents because “a gap of three years is not a continuous pattern”). 22 In this case, there was a 28-month gap between the December 2015 note and the 23 next instance of alleged harassment, the April 2018 note. There is no clear continuity 24 between them or any of the other incidents. Because no perpetrator was ever identified, it 25 is impossible to determine if the 2015 note was written by the same person who was 26 responsible for any of the other events. Plaintiff argues that the continuing violation 27 doctrine applies because Defendant’s internal documents grouped the notes and the 28 removal of Plaintiff’s picture from a coworker’s cubicle into a single investigation. (Doc. 1 62 at 18–19). But the law of the continuing violation doctrine—not Defendant’s internal 2 decisions—determines whether the December 2015 note is actionable. And here, it is 3 clear that the December 2015 note was episodic, non-pervasive, and temporally removed 4 from any other conduct giving rise to Plaintiff’s case. Following Sheikh-Hassan, then, the 5 Court will not consider the December 2015 note as part of Plaintiff’s hostile work 6 environment claims because it occurred more than 300 days before Plaintiff filed her 7 administrative charge and it was not part of the same continuous pattern as the events that 8 occurred within the limitations period. 9 Defendant next argues that the three anonymous emails sent to Plaintiff’s work 10 email address are not actionable because they are not sex-based discrimination. (Doc. 54 11 at 12–13). Plaintiff counters that through their references to her family, the emails in fact 12 targeted her based on her being a woman and mother. (Doc. 62 at 15). But regardless of 13 whether the emails were facially discriminatory, “acts contributing to a hostile work 14 environment do not need to be specifically . . . sex-based in nature so long as there is 15 some basis to infer that incidents neutral on their face were in fact discriminatory.” 16 Gordwin, 2021 WL 5396086, at *6 (internal quotation marks omitted). For example, in 17 Curtis v. City of Oakland, the conduct that formed the basis for an employee’s hostile 18 work environment claim was largely neutral on its face, and the perpetrator of some of 19 the events was unknown. 571 F. App’x 616, 617 (9th Cir. 2014). Still, the Ninth Circuit 20 reversed the district court’s decision granting summary judgment in favor of the 21 employer because “there was evidence in the record from which a reasonable jury could 22 infer” that the employee was being targeted because of his race. Id. at 618. Likewise, 23 here, although no perpetrator was ever identified, in light of the references to Plaintiff’s 24 daughter and family along with the explicitly sex-based April 2018 note, a reasonable 25 jury could infer that the emails were sent to Plaintiff because of her sex. Accordingly, the 26 Court will consider the emails as part of Plaintiff’s hostile work environment claim. 27 Defendant further argues that Plaintiff’s flat tires in March 2019 are not actionable 28 for a variety of reasons, including that there is no evidence that they were deliberate or 1 that they occurred on the Boeing campus. (Doc. 54 at 13). Plaintiff’s Response does not 2 dispute this issue, so it is conceded. See, e.g., M.S. v. County of Ventura, No. CV 16- 3 03084-BRO (RAOx), 2017 WL 10434015, at *24 n.20 (C.D. Cal. Mar. 7, 2017) (“Failure 4 to respond to the merits of one party’s argument constitutes a concession of that 5 argument.”); see also Mendoza v. City of Peoria, No. CV-13-00258-PHX-DJH, 2015 WL 6 13239816, at *4 (D. Ariz. July 31, 2015) (construing Plaintiff's “silence” on an argument 7 as a concession). 8 Next, Defendant argues that the actionable conduct was not so severe or pervasive 9 as to alter the conditions of employment and create an abusive working environment. 10 (Doc. 54 at 13–14). If Defendant were correct that the only actionable conduct were the 11 April 2018 note, that may be true. But Defendant is not correct. In addition to the 12 anonymous emails that threatened Plaintiff and her family, the evidence in the record— 13 when viewed in the light most favorable to Plaintiff—supports several other instances of 14 harassment that could reasonably be considered sex-based. Those instances include, 15 among others, comments made by a coworker about Plaintiff’s body (Doc. 63 ¶ 118), the 16 closure of Defendant’s initial investigation because of Plaintiff’s purported “selective 17 reporting” (Doc. 63 ¶¶ 84–86), and a message from one member of Defendant’s security 18 staff to another in an email chain about Plaintiff asking if the recipient was “going to slap 19 her around a little bit and see if she confesses”2 (Doc. 63 ¶ 114). A reasonable jury could 20 conclude that the severity of the email containing a death threat together with the pattern 21 of other conduct “so pollute[d] the workplace that it altered the conditions of [Plaintiff’s] 22 employment.” Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003); see Davis 23 v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (“[T]he required level of severity 24 or seriousness varies inversely with the pervasiveness or frequency of the conduct.” 25 (internal quotation marks omitted)); Pryor v. United Air Lines, Inc., 791 F.3d 488, 496– 26 27 2 This email was sent on May 16, 2019. (Doc. 63 ¶ 114). Because this act contributes to Plaintiff’s claim and occurred within the 180-day ACRA limitations 28 period, Defendant’s argument that the ACRA discrimination claim is untimely fails. 1 97 (4th Cir. 2015) (finding that non-pervasive racially tinged death threats were so severe 2 that they could, on their own, engender a hostile work environment). 3 Finally, Defendant argues that it is not liable for sex discrimination as a matter of 4 law because it implemented reasonable investigative and safety measures that stopped 5 any harassment of Plaintiff. (Doc. 54 at 14–15). The mere fact that harassment stops is 6 not conclusive, as an employer’s “remedial obligation” is discharged only if “prompt, 7 effective action” is taken. Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). 8 Effectiveness is measured “by the twin purposes of ending the current harassment and 9 deterring future harassment—by the same offender or others.” Id. Although it is a close 10 question, as Defendant undisputedly implemented some remedial measures, the Court 11 finds that there are genuine issues of material fact as to whether Defendant’s corrective 12 measures were reasonably effective. In addition to the closure of Defendant’s initial 13 investigation due to Plaintiff’s purported “selective reporting” and the email between the 14 security staff mentioned above, Plaintiff has presented evidence that there was significant 15 delay in Defendant’s discovery of two of the threatening emails, potentially resulting in 16 the loss of evidence that could have resulted in identification of the perpetrator, and that 17 MPD’s interviews of Plaintiff’s coworkers were delayed by Defendant. Based on this 18 evidence, a reasonable jury could find that Defendant’s remedial actions were ineffective 19 at promptly ending the harassment of Plaintiff or deterring future harassment of its 20 employees. Defendant is not entitled to summary judgment on Plaintiff’s sex 21 discrimination claims under Title VII and ACRA. 22 b. Retaliation 23 “To make out a prima facie case of retaliation, an employee must show that (1) he 24 engaged in a protected activity; (2) his employer subjected him to an adverse 25 employment action; and (3) a causal link exists between the protected activity and the 26 adverse action.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Defendant 27 argues that Plaintiff cannot prove the second or third elements and that the retaliation 28 claims therefore fail as a matter of law. 1 A plaintiff meets the second element by showing “that a reasonable employee 2 would have found the challenged action materially adverse, which in this context means 3 it well might have dissuaded a reasonable worker from making or supporting a charge of 4 discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) 5 (internal quotation marks omitted). Adverse employment actions in the retaliation context 6 are “not limited to discriminatory actions that affect the terms and conditions of 7 employment.” Id. at 64. Still, “trivial harms” such as “petty slights, minor annoyances, 8 and simple lack of good manners” are not adverse employment actions. Id. at 68. 9 Here, Plaintiff cites various aspects of Defendant’s investigation into her 10 complaints as adverse employment actions (Doc. 62 at 21 & n.7). While Defendant is 11 correct that some of them are petty slights, minor annoyances, or are not even actions that 12 can be imputed to Defendant (Doc. 64 at 11–12), some of them do raise a genuine factual 13 issue as to whether Defendant subjected Plaintiff to an adverse employment action. 14 Courts have held that evidence that an employer conducted secret surveillance of an 15 employee who has engaged in protected activity raises a material issue of fact for a 16 retaliation claim. See, e.g., MacDonald v. United Parcel Serv., 430 F. App’x 453, 466 17 (6th Cir. 2011); Fercello v. County of Ramsey, 612 F.3d 1069, 1081 (8th Cir. 2010); 18 Williams v. Guilford Tech. Cmty. Coll. Bd. of Trs., 117 F. Supp. 3d 708, 721 (M.D.N.C. 19 2015) (“Secretive surveillance and heightened scrutiny of an employee can constitute 20 adverse employment actions for retaliation purposes.”); Mendez v. Starwood Hotels & 21 Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 598 (S.D.N.Y. 2010) (“[T]here is nothing 22 unreasonable about the jury’s concluding that secret surveillance by an employer well 23 might . . . dissuade a reasonable employee from continuing to complain about 24 discrimination . . . .”); Marceau v. Idaho, No. 1:09-CV-00514-N-EJL, 2011 WL 25 3439178, at *13 (D. Idaho Aug. 5, 2011). Here, there is evidence that Defendant installed 26 a camera in Plaintiff’s cubicle without her knowledge for a period of months—longer 27 than company policy allowed—as well as a covert software program that recorded all of 28 the activity on her computer. (Doc. 63 ¶¶ 93, 94, 96). A jury could reasonably conclude 1 that those actions, at minimum, would dissuade an employee from making a 2 discrimination claim. 3 As to the third element of retaliation, the causation element, Defendant argues 4 only that there can be no causal link between Plaintiff’s protected activity and an adverse 5 action because Plaintiff has not presented evidence of any adverse action in the first 6 place. (Doc. 54 at 17). The Court having found, however, that there is a genuine issue of 7 material fact as to whether an adverse employment action occurred, Defendant’s 8 causation argument also fails. 9 Finally, the Court must specifically address Plaintiff’s AEPA retaliation claim, as 10 Defendant argues that it is time-barred. (Doc. 54 at 17). The statute of limitations for an 11 AEPA claim is one year and starts on the date of an employee’s termination. See A.R.S. 12 § 12-541(5); Breeser v. Menta Grp., Inc., NFP, No. CV 10-1592-PHX-JAT, 2013 WL 13 3199828, at *6 (D. Ariz. June 24, 2013). Defendant left her job with Defendant on 14 August 9, 2019 and filed her lawsuit on August 25, 2020. Plaintiff argues that 15 Defendant’s actionable retaliatory conduct continued post-termination because she was 16 required to go into the office to return her laptop and corporate credit card. (Doc. 62 at 19 17 n.4). Even assuming that requiring Plaintiff to come into the office could be considered 18 retaliatory, however, Plaintiff has provided no evidence of such conduct, much less the 19 date on which it occurred.3 Thus, Plaintiff’s AEPA retaliation claim is barred by the 20 statute of limitations, and Defendant is entitled to judgment as a matter of law. Still, 21 Plaintiff’s Title VII and ACRA retaliation claims will go forward. 22 c. Intentional Infliction of Emotional Distress 23 A successful IIED claim requires proof of three elements: (1) “the conduct by the 24 defendant must be ‘extreme’ and ‘outrageous;’” (2) “the defendant must either intend to 25 cause emotional distress or recklessly disregard the near certainty that such distress will 26 result from his conduct;” and (3) “severe emotional distress must indeed occur as a result

27 3 Plaintiff cites to paragraph 123 of Document 63, but that paragraph makes no 28 mention of Plaintiff being required to return to the office. 1| of defendant’s conduct.” Citizen Publ’g Co. v. Miller, 115 F.3d 107, 110 (Ariz. 2005) 2| (nternal quotation marks omitted). An employer is typically liable for ITED based on sexual harassment of an employee “only when a company utterly fails to investigate or 4) remedy the situation.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1059 (9th Cir. 5 | 2007) (citing Ford v. Revlon, Inc., 734 P.2d 580, 585-86 (Ariz. 1987); Smith v. Am. 6| Express Travel Related Servs. Co., Inc., 876 P.2d 1166, 1173-74 (Ariz. Ct. App. 1994)). 7 | Plaintiff devotes less than a full sentence of her Response to the ITED claim and fails to 8 | provide any substantive argument as to how the evidence in the record raises a genuine issue of material fact as to any element. (Doc. 62 at 21). Moreover, Plaintiff does not dispute that Defendant took at least some measures to investigate and remedy the 11 | incidents giving rise to her case. (See, e.g., Doc. 63 Jf] 17, 26, 27, 30-34, 44, 45, 54-56, 12| 62). Thus, the Court will grant summary judgment in favor of Defendant on □□□□□□□□□□□ 13 | claim. 14 IV. CONCLUSION 15 Plaintiffs AEPA retaliation claim is time-barred, and Defendant is entitled to 16 | judgment as a matter of law on the ITED claim. As for Plaintiff's Title VI and ACRA sex 17 | discrimination and retaliation claims, however, there remain genuine disputes of material 18 | fact to be resolved by a factfinder at trial. Accordingly, 19 IT IS ORDERED that Defendant The Boeing Company’s Motion for Summary 20 | Judgment (Doc. 54) is granted in part as to Count III and VI and denied in part as to 21 | Counts IJ, II, IV, and V. 22 Dated this 13th day of May, 2022. 23

United States District Judge 26 27 28