Newsletter – January 2021
In Christian v. Umpqua Bank, No. 18-35522 (9th Cir. Dec. 31, 2020), the Ninth Circuit Court of Appeals overturned a district court’s summary judgment decision on gender discrimination and retaliation claims. The bank employee’s evidence of a customer’s repeated, unwelcome advances against the associate and the bank’s failure to take action presented genuine issues of material fact regarding the bank’s liability.
Facts of the Case
Jennifer Christian worked for Umpqua Bank in Washington State. In 2013, a customer asked Jennifer to open a checking account for him. This was a typical and unremarkable interaction for Jennifer. Unfortunately, the customer developed a fascination with Jennifer and started visiting the bank to drop off notes for Jennifer. The customer’s notes asked Jennifer to go on a date with him and said that she was “the most beautiful girl he’[d] seen”. Jennifer and her colleagues became concerned. Her supervisor told her to “watch out”.
The customer returned to the bank, and Jennifer told him that she would not go on a date with him. While he acknowledged her statement, he then sent her a long, personal letter. She showed the letter to her manager and a corporate trainer, among others. They warned her to be careful. Jennifer also learned that the customer had come to the bank and asked other employees how to get a date with her. Again, her colleagues were concerned. The corporate trainer told her to call the police.
The customer continued to send Jennifer notes and had flowers delivered to her on Valentine’s Day. Jennifer told her manager that she did not want the customer allowed int the bank. While her manager promised that he would make this happen, he never told the customer not to return. Instead, he instructed that Jennifer call the customer and tell him to stop trying to go on a date with her.
The customer continued badgering Jennifer’s colleagues, and Umpqua Bank eventually closed his account. A few months later, Jennifer volunteered at a charity event and noticed the customer watching her. The customer then returned to the bank and asked to reopen his account. Instead of asking the customer to leave, Jennifer’s manager told her to reopen the account. When she reminded him that he promised that the customer would not be allowed at the bank, he got another associate to open the account. Jennifer became consumed with fear and anxiety, which was not soothed when the customer came back a few days later to sit in the lobby for almost an hour staring at Jennifer.
Jennifer contacted two regional managers and an HR rep about the situation. She had to call in sick due to stress and anxiety, and she requested that the bank obtain a no-trespassing order against the customer. Instead, her manager required her to return to work and told her to “just hide in the break room” if the customer returned. Jennifer asked for a transfer to another branch, even though the new position had fewer hours. She finally quit her job on doctor’s orders and filed a lawsuit against Umpqua, alleging gender discrimination and retaliation.
After the case was removed from state to federal court, the district court granted Umpqua’s motion for summary judgment on Jennifer’s claims. Jennifer appealed the decision to the Ninth Circuit Court of Appeals.
Were There Genuine Issues of Material Fact Regarding the Discrimination?
In deciding this case, the Ninth Circuit had to determine whether there were genuine issues of material fact such that the district court should not have granted Umpqua summary judgment on Jennifer’s claims. To prevail on sex discrimination claims (under the theory of a hostile work environment), a plaintiff needs to show that “she was subjected to sex-based harassment that was sufficiently severe or pervasive to alter the conditions of employment, and that her employer is liable for this hostile work environment.” Here, the issues were (1) was the harassment was severe and pervasive, and (2) is Umpqua is liable for allowing the customer to harass Jennifer.
Courts consider the totality of the circumstances when deciding if harassment is severe and pervasive. They look to “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) [citation omitted]. The district court here decided not to consider much of Jennifer’s evidence because seven months passed between harassing incidents and because many of the incidents did not involve direct contact between Jennifer and the customer. In contrast, the Ninth Circuit found that the district court erred in disregarding these incidents due to the passage of time and lack of direct contact. Instead, the opinion reiterates that the district court should have considered the totality of the circumstances: “Christian understandably experienced the harassment not as isolated and sporadic incidents but rather as an escalating pattern of behavior that caused her to feel afraid in her own workplace.”
Moreover, Ninth Circuit’s opinion notes that the customer did not have to have direct interactions with Jennifer to harass her – harassment is not just physical contact or one-on-one conversations. The customer’s repeated visits to the bank to ask Jennifer’s colleagues about her, the letters he sent, and his watching her in the bank lobby all create genuine issues of material fact and should have been considered by the district court. As a result, the Ninth Circuit concludes that a trier of fact could find that the customer’s harassment created a hostile working environment.
As to Umpqua’s liability for the harassment, the Ninth Circuit also found that Jennifer had shown a genuine issue of material fact to allow the case to proceed to trial. The employer failed to protect Jennifer from the customer’s harassment. Umpqua did not tell the customer not to return to the bank or take other action to end the harassment (obtaining a no-trespassing order, speaking to security or HR, etc.). Instead, bank employees told Jennifer to “watch out” and hide in the break room. The opinion notes that while Umpqua did eventually close the customer’s account, tell him not to return, and transfer Jennifer, a jury could decide that this was “too little too late”. Moreover, the bank asked Jennifer to do most of the work, having her repeatedly talk to the customer, instead of taking the appropriate steps to protect its employee from harassment. All this created a genuine issue of material fact, and so the Ninth Circuit concludes that the district court erred in granting summary judgment to Umpqua.
An employer cannot sit idly by and ignore a customer who is harassing an employee. An employer may have liability for a customer’s harassment of an employee even if it does eventually take action to stop the harassment. Here, the district court incorrectly disregarded evidence of a customer’s pattern of harassment, while the employer’s actions to stop the harassment may have been “too little too late” for the harassed employee.