Summary
In Von Heeder, defendant moved for summary judgment, contending that plaintiff's hostile work environment claims were barred by the exclusive remedy provision of Oregon's Worker's Compensation law. 2001 WL 1703092, at *9.
Summary of this case from Equal Emp't Opportunity Comm'n v. Fred Meyer Stores, Inc.Opinion
Civil No. 00-0025-HA; Lead Case
November 11, 2001
Robert S. Dorband, DuBoff Dorband Cushing King PLLC, Portland, Oregon; Attorney for Plaintiffs.
Kirk W. Mylander, Lisa C. Brown, Peter C Richter, Miller Nash LLP, Portland, Oregon; Attorneys for Defendant Safeway.
Peter R. Mersereau, Mersereau Shannon, LLP, Portland, Oregon; Attorney for Defendant Gardner.
OPINION AND ORDER
These cases are brought by three female plaintiffs who claim that they were sexually harassed while working for defendant Safeway and Tillamook store manager defendant Steve Gardner. The cases were filed in January, 2000, and were consolidated on October 24, 2000, with Von Heeder v. Safeway, 00-25 being designated as Lead Case. Both defendants filed motions seeking summary judgment, and oral argument was heard in court on October 9, 2001. For the following reasons, the motions for summary judgment are denied.
BACKGROUND
These cases are brought by females who worked for defendant Safeway in its store in Tillamook, Oregon. Defendant Steve Gardner was store manager in Tillamook, and he is alleged to have viewed the three plaintiffs when they used the restroom in the store. Defendant Gardner allegedly entered the "attic portion" of the store several times a day, whenever one of the plaintiffs went to the restroom. In the attic, Gardner removed the cover of a ceiling vent to observe each of the plaintiffs using the restroom. Gardner also allegedly moved about in the employee-restricted areas of the store while aroused, and would call attention to his erection when he encountered a female employee. In each of the cases, the plaintiff is suing for sexual harassment, negligence, intentional infliction of emotional distress and invasion of privacy.
PENDING MOTIONS
Defendants submit separate motions for summary judgment. Defendant Gardner seeks summary judgment on plaintiffs' two claims brought against him for intentional infliction of emotional distress and for invasion of privacy. Defendant Safeway also seeks summary judgment on the three claims plaintiffs bring against it — for sexual harassment (under state and federal statutes), negligence and intentional infliction of emotional distress.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts showing a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Special rules of construction apply to evaluating summary judgment motions: 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The issue of material fact required by Rule 56 to entitle a party to proceed to trial need not be resolved conclusively in favor of the party asserting its existence; all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id.; see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).
ANALYSIS
1. Defendant Gardner's Motion for Summary Judgment
As noted at oral argument on his motion, defendant Gardner offers his own version of background facts in support of his motion for summary judgment. This version of facts alone establishes the existence of genuine issues of material facts that preclude summary judgment. Nevertheless, defendant also asserts legal arguments against plaintiffs' claims, and these are addressed below.
A. Invasion of Privacy
Defendant first asserts that plaintiffs lack any proof of intentional "intrusion," a necessary element in this tort. Both parties identify Mauri v. Smith, 324 Or. 476, 929 P.2d 307 (1996), as the seminal case describing the elements of the tort of invasion of privacy. The Oregon Supreme Court held in the case that
to establish a claim, a plaintiff must prove three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.
Id. at 324 Or. at 483, 929 P.2d at 310. The court defined "intentional intrusion" as occurring when a
person intrudes by thrusting himself or herself in without invitation, permission, or welcome. A person acts intentionally when he or she either desires to cause the consequence of an act or believes that the consequence is substantially certain to result from the act. By definition, then, an actor commits an intentional intrusion if the actor either desires to cause an unauthorized intrusion or believes that an unauthorized intrusion is substantially certain to result from committing the invasive act in question.
Id. at 324 Or. at 484, 929 P.2d at 311.
A plaintiff bears the burden to establish each element of a tort, including those elements that involve a defendant's state of mind. See McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995) (in the torts of intentional interference with economic relations, intentional infliction of severe emotional distress, and wrongful discharge, an element of a plaintiff's case is a defendant's intention). After viewing the facts and allegations in the light most favorable to plaintiffs, genuine questions of material fact exist precluding summary judgment regarding whether the record reasonably can be read to establish (1) an intentional intrusion, physical or otherwise by defendant, (2) upon the plaintiffs' solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.
Defendant argues that there is a lack of evidence regarding "intrusion," but the evidence regarding defendant's running upstairs whenever a plaintiff entered the restroom, plaintiffs hearing noises above the restroom, and surveillance of defendant above the restroom, is sufficient to raise a triable question of whether defendant either desired to cause an unauthorized intrusion or believed that an unauthorized intrusion was substantially certain to result from committing these acts. Defendant does not challenge the other two elements, namely that the intentional intrusion alleged was upon the plaintiffs' solitude or seclusion or private affairs or concerns, and that such an intentional intrusion would be highly offensive to a reasonable person. This court agrees that there is at least an issue of material fact as to the existence of these elements.
B. Intentional Infliction of Emotional Distress
Defendant also asserts legal challenges against plaintiffs' claim for intentional infliction of emotional distress. To state a claim for intentional infliction of emotional distress under Oregon law, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty, 321 Or. at 543, 901 P.2d at 849, quoting Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989).
Defendant argues in part that there is no evidence that defendant committed any "acts" that caused such distress to plaintiffs. As reviewed above, this court concludes there is sufficient evidence to raise a triable question of fact regarding whether defendant committed acts that would cause emotional distress.
Defendant also argues there is no evidence of defendant's intent to inflict emotional distress. In McGanty, the Oregon Supreme Court analyzed the element of "intent" in an intentional infliction of emotional distress case. The court noted that previous decisions had misconstrued the intent element of this tort by requiring a showing that the defendant acted with the purpose of inflicting severe emotional distress on the plaintiff. Instead, the court emphasized that intent should be defined as discussed in the Restatement (Second) of Torts § 46 (1965):
All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.
Comment i of the Restatement explained the element of intent in the specific context of the tort of intentional infliction of emotional distress: "The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct." See McGanty, 321 Or. at 550-51, 901 P.2d at 853.
Defendant contends that since the alleged behavior was "intended to be secretive, and reasonably expected to remain forever secretive," it cannot logically be concluded that defendant intended to inflict emotional distress upon anyone. The court rejects this argument, in light of the teaching of McGanty. Since defendant knew that distress was certain, or substantially certain to be inflicted upon women as a result of his alleged conduct, his motion for summary judgment is denied.
2. Defendant Safeway's Motion for Summary Judgment
Defendant Safeway moves for summary judgment on the three claims plaintiffs bring against it — for sexual harassment (state and federal), negligence and intentional infliction of emotional distress.
A. Claims for Negligence and Intentional Infliction of Emotional Distress
Plaintiffs concede that their claims for negligence and intentional infliction of emotional distress claims appear to be barred by the recent ruling in Hanson v. Versarail Systems, Inc., 175 Or. App. 92, 28 P.3d 626 (2001), and acknowledged this during oral argument on defendants' motions. This court agrees. Accordingly, defendant Safeway is entitled to summary judgment on the claims of negligence and intentional infliction of emotional distress.
B. Sexual Harassment
Defendant Safeway offers three major arguments in support of its motion for summary judgment on plaintiffs' harassment claims.
I. Workers' Compensation bar
First, defendant Safeway contends that plaintiffs' hostile work environment claims are barred by the "exclusive remedy" provision in Oregon's workers compensation statute at O.R.S. 656.018. That provision states that workers' compensation benefits are "exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course and scope of employment that are sustained by subject workers." Section (2) provides that the benefits from workers' compensation are "in lieu of any remedies" the employee may otherwise have against the employer "under O.R.S. 654.305 to 654.335 or other laws, common law or statute." Defendant Safeway argues that "other laws" include state and federal sexual harassment laws under O.R.S. 659.030 and Title VII.
Counsel for defendant Safeway failed to acknowledge to the court that this position has been roundly rejected by other courts. While courts have recognized that the "exclusive remedies" provisions in applicable Workers' Compensation statutes generally preclude common law claims against an employer, these same courts assert that what is "equally clear is that, under the Supremacy Clause, an exclusivity provision of a state's workers' compensation law cannot pre-empt an employee's right under Title VII to be free from sexual harassment." Rose v. Baystate Medical Center, Inc., 985 F. Supp. 211, 215 (D.Mass. 1997), citing Karcher v. Emerson Elec. Co., 94 F.3d 502 (8th Cir.), cert. denied, 520 U.S. 1210 (1996). In Karcher, the Eighth Circuit interpreted an exclusive remedies provision similar to Oregon's, and concluded that although the state courts "have held that the exclusivity provision bars common law tort actions that arise out of incidents covered by the workers' compensation statute," "[c]learly, this exclusivity provision can not preempt Karcher's federally created right to recover damages for emotional distress under Title VII." Karcher, 94 F.3d at 509. See also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1190 (2nd Cir. 1987) (workers' compensation law not read as denying deny relief under a federal statute; "Were state law to erect such a bar, it would clearly run afoul of the Supremacy Clause of the U.S. Const. Art. VI, cl. 2"), citing Hamm v. City of Rock Hill, 379 U.S. 306, 315 (1964); Kirkland v. New York State Dep't of Correctional Facilities, 628 F.2d 796, 801 (2nd Cir. 1980), cert. denied sub nom, 450 U.S. 980 (1981); St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981) (courts should construe statutes to avoid raising doubts about their constitutionality).
Counsel for Safeway failed to address these authorities, but instead in the Reply brief and at oral argument relied upon an apparently unpublished decision from the United States District Court for the Northern District of California regarding an employee who brought suit against her employer, the United States Postal Service, alleging a claim for intentional infliction of emotional distress. The court initially ruled that the plaintiff's claim was outside the scope of the Federal Employees Compensation Act, 5 U.S.C. § 8101 (the workers' compensation statute for federal employees), and that the plaintiff would have to proceed administratively with her intentional infliction of emotional distress claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-80.
Plaintiff pursued her administrative remedies under the FTCA, and the court reopened her case when plaintiff's administrative claim was denied. The defendant Postal Service then moved for summary judgment by arguing in part that plaintiff's FTCA claim for intentional infliction of emotional distress, which was to be litigated according to California law, was barred by the exclusive remedy provisions of the California workers' compensation statute.
The District court agreed, reasoning that when the United States is sued for intentional infliction of emotional distress under the FTCA, it is entitled to the same immunity from suit enjoyed by a private employer covered by state workers' compensation laws. The court looked to California workers' compensation law to determine whether plaintiff's claim for intentional infliction of emotional distress could proceed, and ruled that under California law, purely emotional injuries such as plaintiff's were compensable under workers' compensation, and so could not be the subject of a lawsuit. Counsel for defendant Safeway elected to quote the decision in part, summarizing that the opinion holds that "a federal claim under the Federal Tort Claims Act filed against a state actor was `barred by the exclusive remedy provision of the California workers' compensation statute.'" Defendants' Reply brief at 5.
The complete quotation from the decision, however, is much more precise: "The Court holds that plaintiff's claim for intentional infliction of emotional distress is barred by the exclusive remedy provision of the California workers' compensation statute." Brown v. U.S. Postal Service, 1998 WL 242677, 3 (N.D.Cal. 1998).
Despite counsel's somewhat disingenuous portrayal of the scope of this decision, it is clear that to the extent that the decision provides any meaningful authority to this court regarding the question of the effect of the exclusive remedy provision of a workers' compensation statute, that authority pertains only to instances in which a federal employee attempts to sue an employer in a common law tort action. To suggest that the Brown decision is the best — or only — authority for determining whether state and federal sexual harassment claims may be barred by a workers' compensation exclusive remedy provision is at best poor lawyering, and at worst falls short of the ethical standards expected and required by this court.
Defendant offers a related argument that under Hanson, the Oregon Court of Appeals emphasized that workers' compensation statutes protect employers from additional liability for common law torts. The decision recognizes that there is an exception to the bar for torts that the employer deliberately intended, but the court ruled that an employee could not rely upon the doctrine of respondent superior to come within this exception.
While this case is inapplicable to defendant Safeway's theory that the harassment claims are barred, the ruling in Hanson regarding the respondent superior doctrine is also distinguishable. Plaintiffs' allegations pertain to a supervisor, which courts have recognized to be an employer's "alter ego." Employers are held strictly liable for the sexually harassing conduct of supervisors, unless the employer can prove as an affirmative defense that (1) the employer exercised reasonable care to prevent and correct promptly any improper behavior; and (2) the victimized employee failed to take advantage of any preventative or corrective measures offered by the employer or otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Defendant Safeway contends that this affirmative defense is applicable, and also seeks summary judgment on these grounds.
II. Preemption Under the NLRA
Defendant Safeway also contends that the claims from plaintiffs Hubbard and Jones should be preempted by Section 301(a) of the National Labor Relations Act ("NLRA"), because Hubbard and Jones are union members and enjoy the benefits of a collective bargaining agreement ("CBA"). Section 301 preempts state law actions that involve the interpretation or enforcement of the collective bargaining agreement. A state law claim is preempted by section 301 when it is "substantially dependent" on analysis of a CBA, but merely because a CBA will be consulted in the course of state-law litigation does not require preemption; nor is a state-law claim preempted merely because the defendant has raised a defense based on the terms of a CBA. Sprewell v. Golden State Warriors, ___ F.3d ___, 2001 WL 1057136, p. 7 (9th Cir. 2001) (citations omitted).
Defendant argues that because a provision of the applicable CBA between Hubbard and Jones and Safeway prohibits Safeway from violating any state or federal discrimination laws (Galego Aff., Ex. 3, Agreement with United Food and Commercial Workers Local 555, October 25, 1998 through November 2, 2002, Art. 1, § 1.1), this court would be required to "analyze the terms" of the CBA, and plaintiffs' claims and Safeway's defenses would be "substantially dependent" upon the court's analysis and application of the terms of the CBA.
This argument fails as well. The United States Supreme Court has recognized that § 301 preempts "only claims founded directly on rights created by collective bargaining agreements, and also claims `substantially dependent on analysis pf a collective bargaining agreement.'" Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987), quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983). Recently, the Ninth Circuit recognized that § 301 preempts a claim only where a "plaintiff's claim cannot be resolved without interpreting the applicable CBA. . . . Alternatively, if the claim may be litigated without reference to the CBA — it is not preempted. * * * The plaintiff's claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiff's claim." Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001); amended August 27, 2001 (en banc).
Nothing in plaintiffs' claims requires this court, or a jury, to interpret the applicable CBA or its terms in evaluating the possible merits of plaintiffs' harassment claims against defendant Safeway. This argument, accordingly, is rejected.
III. Affirmative Defenses
Finally, defendant Safeway argues that it is entitled to summary judgment on the Title VII claims on grounds that plaintiffs cannot prove they were sexually harassed, and because of Safeway's affirmative defenses that (1) Safeway exercised reasonable care to prevent and correct promptly any improper behavior; and (2) the victimized employee failed to take advantage of any preventative or corrective measures offered by Safeway, or otherwise avoid harm. Faragher, 524 U.S. at 807.
a. Standards
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e. "Congress added the word "sex" to Title VII of the Civil Rights Act of 1964 at the last minute on the floor of the House of Representatives. 110 Cong. Rec. 2,577-2,584 (1964). Virtually no legislative history provides guidance to courts interpreting the prohibition of sex discrimination." Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).
In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII. Courts have recognized different forms of sexual harassment. In "quid pro quo" cases, employers condition employment benefits on sexual favors. In "hostile environment" cases, employees work in offensive or abusive environments. This case, like Meritor, involves a hostile environment claim.
In Jordan v. Clark, 847 F.2d 1368, 1373 (9th Cir. 1988), cert. denied sub nom., Jordan v. Hodel, 488 U.S. 1006 (1989), the Ninth Circuit explained that a hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.
The EEOC guidelines describe hostile environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a)(3). The EEOC, in accord with a substantial body of judicial decisions, has concluded that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor, 477 U.S. at 65.
The Supreme Court cautioned, however, that not all harassment affects a "term, condition, or privilege" of employment within the meaning of Title VII. The "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" is not, by itself, actionable under Title VII. Id. at 67.
To state a claim under Title VII, sexual harassment "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. The Supreme Court drew its limiting language from Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972), the first case to recognize a hostile racial environment claim under Title VII. The Rogers phrasing limits hostile environment claims to cases where conduct alters the conditions of employment and creates an abusive working environment.
In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, the Ninth Circuit held in Ellison that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Ellison, 924 F.2d at 879.
Punitive damages are available under Title VII, though they are limited. 42 U.S.C. § 1981a(a)(1). The Civil Rights Act of 1991 amended Title VII to provide for both compensatory and punitive damages. Under Title VII, as amended, punitive damages may be awarded "if the complaining party demonstrates that the respondent engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1).
The Ninth Circuit has held that punitive damages are inappropriate where the discriminatory conduct is merely negligent in respect to the existence of a federally protected right — to receive punitive damages, the plaintiff must demonstrate that the defendant almost certainly knew that what he was doing was wrongful and subject to punishment. Ngo v. Reno Hilton Resort Corp., 140 F.3d 1299 (9th Cir. 1998), cert. dismissed, 526 U.S. 1142 (1999). The Ngo decision addresses the heightened standard for obtaining punitive damages:
Accordingly, we interpret the language of section 1981a to require plaintiffs seeking punitive damages to make a showing beyond the threshold level of intent required for compensatory liability. An award of punitive damages under Title VII is proper where the acts of discrimination giving rise to liability are willful and egregious, or display reckless indifference to the plaintiff's federal rights. In such circumstances, society has a strong interest in punishing the tortfeasor, and exemplary damages are most likely to deter others from undertaking similar actions. Punitive damages may not be awarded, however, where a defendant's discriminatory conduct is merely "negligent in respect to the existence of a federally protected right," (citation omitted), since society's interest in punishing the tortfeasor is substantially reduced in such cases, and the deterrent effect of exemplary damages is likely to be much weaker. Thus, to be entitled to an award of punitive damages, the plaintiff must demonstrate that the defendant "almost certainly knew that what he was doing was wrongful and subject to punishment." Soderbeck v. Burnett County, 752 F.2d 285, 291 (7th Cir. 1985).
Ngo, 140 F.3d at 1304.
In the case, the Ninth Circuit reviewed the evidence of discrimination presented (manager miscalculated length of employment and terminated plaintiff who sought leave, but later allowed another employee with the same length of service to have the leave), and concluded that the acts in question did not "evince an evil motive or a conscious and deliberate disregard for Ngo's federally-protected right against discrimination. * * * [N]egligent decisionmaking and poor communication among managers may properly give rise to compensatory liability under Title VII, but they do not, without more, warrant punishment, nor would such acts be deterred by an award of exemplary damages." Id. at 1305. The Ninth Circuit concluded that the district court properly denied punitive damages as a matter of law.
b. Analysis
Defendant Safeway contends that plaintiffs present merely circumstantial evidence that its supervisor, Gardner, spied on them while they used the restroom, and that this evidence falls short of the "pervasive," on-going kind of sexual misconduct required for liability under the law. Moreover, defendant Safeway asserts the affirmative defenses that it has in place a "zero tolerance" policy against sexual harassment, it promptly responded to and investigated plaintiffs' complaints, and that plaintiffs suffered no adverse employment action.
The Ninth Circuit clearly sets a high standard for granting summary judgment in Title VII and employment discrimination cases. "[B]ecause of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence . . . to raise a genuine issue of fact." Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (regarding discriminatory motive cases); see also Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (courts should require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record (citations omitted)); Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991).
Defendant Safeway's assertions that Gardner's actions were not "pervasive" and "severe," as well as its arguments that it exercised reasonable care to prevent and correct promptly any improper behavior and that plaintiffs failed to take advantage of any preventative or corrective measures offered by the employer or otherwise avoid harm, as described under Faragher, are fact-intensive and insufficient as grounds for awarding Safeway summary judgment. In light of the record as it now stands, this court cannot say as conclusively, a matter of law, how pervasive or severe Gardner's actions were, or whether Safeway exercised reasonable care, or whether plaintiffs failed to take advantage of any preventative or corrective measures. Defendant Safeway's motion for summary judgment is, therefore, denied.
OTHER ISSUES
Defendant Safeway complains that plaintiffs misstated the jurisdictional basis for the case. Plaintiffs admitted they erred by citing 42 U.S.C. § 1983 for jurisdiction, but contend that they should be allowed to amend. This court agrees. Plaintiffs shall by October 26, 2001, file an amended complaint for the sole purpose of stating the jurisdictional basis for the case properly.
Defendant Safeway also seeks summary judgment on plaintiffs' claim for punitive damages. This motion is denied, with leave to renew at the pretrial conference and, if necessary, at the close of evidence.
Finally, there are several evidentiary disputes. The resolution of these did not alter the rulings this court now makes on the defendants' summary judgment motions, and shall be addressed by separate Order.
CONCLUSION
For the reasons provided above, defendant Gardner's motion for summary judgment (doc. # 60) is DENIED, and defendant Safeway's motion for summary judgment (doc. # 65) is DENIED. Plaintiffs shall by October 26, 2001, file an amended complaint for the sole purpose of stating the jurisdictional basis for the case properly. The pretrial conference in this matter remains set for December 10, 2001. Trial will begin on January 8, 2002.
IT IS SO ORDERED.