Jennifer Christian v. Umpqua Bank ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER CHRISTIAN, FKA Jennifer No. 18-35522
Havemen,
Plaintiff-Appellant, D.C. No.
3:16-cv-01938-
v. BR
UMPQUA BANK,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted November 5, 2019
Portland, Oregon
Filed December 31, 2020
Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and Leslie E. Kobayashi, * District Judge.
Opinion by Judge Paez
*
The Honorable Leslie E. Kobayashi, United States District Judge
for the District of Hawaii, sitting by designation.
2 CHRISTIAN V. UMPQUA BANK
SUMMARY **
Employment Discrimination
The panel reversed the district court’s grant of summary
judgment in favor of defendant Umpqua Bank on claims of
gender harassment brought under Title VII and the
Washington Law Against Discrimination by a former
Umpqua employee who alleged that a bank customer stalked
and harassed her in her workplace and that Umpqua failed to
take effective action to address the harassment.
The panel held that to establish sex discrimination under
a hostile work environment theory, a plaintiff must show 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. The panel concluded that a trier of fact could
find that the harassment altered the conditions of plaintiff’s
employment, and the district court erred in failing to
consider harassing incidents together, in declining to
consider incidents in which plaintiff did not have any direct,
personal interactions with the customer, and in neglecting to
consider record evidence of interactions between the
customer and third persons. The panel further concluded
that there were genuine issues of material fact whether
Umpqua either ratified or acquiesced in the harassment by
failing to take prompt, appropriate, and effective action.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHRISTIAN V. UMPQUA BANK 3
The panel reversed the district court’s grant of summary
judgment and remanded for further proceedings. It
addressed plaintiff’s retaliation claims in a concurrently filed
memorandum disposition.
COUNSEL
Nadia H. Dahab (argued), Stoll Stoll Berne Lokting &
Shlachter P.C., Portland, Oregon, for Plaintiff-Appellant.
Steven Caplow (argued) and Rachel H. Herd, Davis Wright
Tremaine LLP, Seattle, Washington, for Defendant-
Appellee.
Philip Matthew Kovnat (argued) and Anne W. King,
Attorneys; Sydney A.R. Foster, Assistant General Counsel;
Jennifer S. Goldstein, Associate General Counsel; James L.
Lee, Deputy General Counsel; Equal Employment
Opportunity Commission, Washington, D.C., for Amicus
Curiae Equal Employment Opportunity Commission.
OPINION
PAEZ, Circuit Judge:
Jennifer Christian, a former employee of Defendant
Umpqua Bank (“Umpqua”), appeals the district court’s order
granting summary judgment on her claims of gender
harassment and retaliation under Title VII of the Civil Rights
Act of 1964 and the Washington Law Against
Discrimination. Christian alleges that a bank customer
stalked and harassed her in her workplace and that Umpqua
4 CHRISTIAN V. UMPQUA BANK
failed to take effective action to address the harassment. 1
The district court granted summary judgment in favor of
Umpqua, holding that no reasonable juror could conclude
that (1) the harassment Christian endured was so severe or
pervasive as to create a hostile work environment or that
(2) Umpqua ratified or acquiesced in the harassment. We
have jurisdiction under 28 U.S.C. § 1291, and we reverse.
I.
Christian began working for Umpqua in 2009 as a
Universal Associate. She received generally favorable
performance reviews, and was twice promoted, most
recently in 2014 to Universal Associate III. At the time of
the harassment at issue in this litigation, she worked at
Umpqua’s Downtown Vancouver branch (the “Downtown
branch”).
In late 2013, a customer (“the customer”) asked
Christian to open a checking account for him. 2 The
interaction was unremarkable, and Christian did not feel
threatened or afraid while meeting him. Soon, however, the
customer began visiting the bank to drop off “small notes”
for Christian. The notes stated that Christian was “the most
beautiful girl he’[d] seen” and that the customer “would like
to go on a date” with her. Christian began to feel
1
Christian also alleges that Umpqua retaliated against her for
complaining about the harassment and Umpqua’s response to it. Her
appeal of the district court’s grant of summary judgment on her
retaliation claims is addressed in a concurrently filed memorandum
disposition.
2
Because Christian is the non-movant, we construe the facts in the
light most favorable to her. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
CHRISTIAN V. UMPQUA BANK 5
“concerned,” as did her colleagues. Christian’s “lead
supervisor,” Anna Mishuk, advised her to “watch out, you
know, that it doesn’t escalate.” 3
When Christian next saw the customer at the bank, she
told him, “I’m not going to go on a date with you.” He
responded, “okay,” and left the bank. Yet his behavior
continued. In early February 2014, he sent Christian a long
letter stating that she “was the most beautiful woman he’s
ever seen, that . . . [she] was his dream girl, that [they] were
meant to be together, [and] that he wanted to be with [her].”
Christian found the letter “disturbing” because it was
“affectionate and personal” yet she “barely knew the person
sending it.” She showed the letter to her manager, Chris
Sanseri (“Sanseri”), 4 corporate trainer Shawnee Effinger
(“Effinger”), and other colleagues. Effinger and her other
colleagues warned her to be careful.
Around the same time, Christian learned from
employees at Umpqua’s Esther Short Park branch (the
“Esther Short branch”) that the customer had “been in [to the
branch] several times . . . asking [the employees] over and
over . . . how he was going to get a date with [Christian].”
The employees were “concerned,” felt that the customer’s
conduct was “getting creepy,” and warned Christian “that
this was potentially extremely dangerous for [her].”
Effinger advised Christian to call the police. Christian
became increasingly concerned for her safety.
3
Although Christian did not remember whether she told her
manager, Chris Sanseri, about these initial notes, she believed that
Mishuk mentioned them to Sanseri.
4
The parties do not dispute that Sanseri was Christian’s manager.
6 CHRISTIAN V. UMPQUA BANK
On Valentine’s Day of 2014, the customer sent Christian
flowers and a card. Christian felt threatened because “I
[didn’t] know him on a personal level, and he had sent
inappropriate letters and notes talking about how . . . we
were meant to be together, we were soulmates.” Christian,
Effinger, and Mishuk showed Sanseri the letter and card and
told him, “This is disturbing.” Effinger told Sanseri that
“this was a dangerous situation for [Christian].” Christian
later recalled that Effinger “had to explain to [Sanseri] that
these letters were alarming and that several people were
concerned for [Christian’s] safety.”
Christian told Sanseri that she did not want the customer
to be allowed to return to the bank. According to Christian,
Sanseri promised her that he would not allow the customer
to return but never in fact communicated that decision to the
customer. Instead, according to Christian’s deposition
testimony, Sanseri asked her to call the customer to tell him
that it was inappropriate to send her flowers. Christian felt
uncomfortable calling the customer, but agreed to do so
because she felt that Sanseri “didn’t seem like he wanted to
deal with it.” She telephoned the customer and informed
him it was inappropriate to send her flowers and that she was
not going to go on a date with him. She told him to stop
asking her on dates and to stop asking her colleagues at the
Esther Short branch about how to get a date with her. The
customer said “okay.”
The customer did not stop. Several days later, he hand-
delivered another letter for Christian to the Downtown
branch. This letter stated that he and Christian were “meant
to be together” and were “soulmates.” Christian showed the
letter to Sanseri, Mishuk, and several other colleagues.
Christian did not have any direct contact with the
customer again until September 2014. But the customer
CHRISTIAN V. UMPQUA BANK 7
“continue[d] to go into [the] Esther Shor[t] [branch] and ask
about [Christian]” and “badger[] [Christian’s colleagues]
about how he was going to get a date with [Christian].”
Christian’s colleagues informed her that the customer
continued to ask about her. Ultimately, the Esther Short
branch closed the customer’s account because he was
“wasting their time[,]” “badgering them constantly[,]”and
“didn’t have any money.”
In September 2014, Christian and Sanseri volunteered on
behalf of Umpqua at a charity event for homeless
community members. While Christian was scooping ice
cream in the ice cream truck, she noticed the customer
“sitting on the wall of the building” staring at the truck for
twenty to thirty minutes. Christian felt threatened, and told
the other volunteers in the truck “that [the customer] was
present and asked them to watch out for [her] safety because
[she] was afraid of what he might do.” 5
Within a few days of the charity event, the customer
returned to the Downtown branch to reopen his account.
Rather than ask the customer to leave, Sanseri instructed
Christian to open the new account for him. Christian felt
uncomfortable and reminded Sanseri that he had promised
her the customer would not be allowed to return to the bank.
Sanseri responded, “I don’t really remember any of that,
5
It is unclear when Sanseri became aware of this incident. Christian
testified that she did not believe she informed Sanseri of the incident at
the time. By contrast, Sanseri, at his deposition, seemingly testified that
Christian did inform him of the incident at the time. See Excerpts of
Record 189 (“I got there [to the charity event], I’m going to say, around
twelve or one. The event goes until three. And Jennifer had mentioned
that she saw [the customer] at the event.”); Excerpts of Record 193 (“I
do remember asking her if they exchanged words [at the event]. There
was [sic] no words exchanged.”).
8 CHRISTIAN V. UMPQUA BANK
Jennifer, and I’ll just get [another associate] to do it,”
causing her to feel “upset and scared.” While the customer
was assisted by another associate, he stared at Christian.
The following day, Christian went to work “filled with
fear and overwhelming anxiety that [the customer] would
come back” to the bank. A few days later, he did return.
Although “he had no apparent banking business to do,” the
customer sat in the bank lobby for 45 minutes to one hour,
staring at Christian. Christian “became filled with fear and
sick to [her] stomach” and “froze up while helping [another]
customer.” She asked that customer to stay with her until he
left.
Afterward, Christian informed a regional manager of
another region, Dan Souvenier, of the situation. Souvenier
told her, “Don’t worry. This is an easy fix. We can close
his account in 20 minutes . . . . [W]e can get this fixed today
so he’s not allowed to come in the bank anymore.” Christian
also telephoned and left voicemail messages with the
regional manager for her region, Bobbi Heitschmidt
(“Heitschmidt”), and a Human Resources representative,
Kris Wolfram (“Wolfram”), seeking assistance.
The following Monday and Tuesday, Christian called
out sick due to stress and anxiety, and refused to return to
work at the Downtown branch until a no-trespassing order
was implemented to bar the customer from visiting the bank.
Sanseri instructed Christian to return to work and directed
her to “just hide in the break room” if the customer visited
the bank. Later that same week, Christian met with
Heitschmidt, Wolfram, and Sanseri, who again suggested
that she “hide in the break room during the times when [the
customer] would come into the Bank.” They also asked
Christian if she wanted to transfer to a different bank branch
location.
CHRISTIAN V. UMPQUA BANK 9
Shortly thereafter, Christian requested in writing that the
bank close the customer’s bank account and obtain a no-
trespassing order against him. Christian also asked to be
transferred to another Umpqua location, the Salmon Creek
branch. Although she was aware that there was only a 25-
hour per week position available at that location—fewer than
her 32-hour per week position at the Downtown branch—
Christian stated that she was “willing to [accept] those hours
even with the financial burden I will encounter because I
need to work in a safe environment and because I feel you
have given me no other options . . . . I can only feel that I am
being punished for the mistake of others at Umpqua.”
Umpqua closed the customer’s account and told him not
to return to the bank. Umpqua also temporarily transferred
Christian to a different Umpqua location, the Evergreen
Square branch, before finally transferring her to the Salmon
Creek branch several weeks later. Soon after, Christian
resigned her position, stating in an email that she was leaving
because her “doctor has declared it is bad for [her] health to
continue working at Umpqua Bank.”
After obtaining a Notice of Right to Sue from the Equal
Employment Opportunity Commission (“EEOC”), Christian
filed suit in state court, alleging gender discrimination and
retaliation in violation of state and federal law. Umpqua
removed the suit to federal court and moved for summary
judgment, which the district court granted. Christian timely
appealed. 6
6
Umpqua seeks to strike a portion of Christian’s reply brief, which
Umpqua contends introduces “a new theory and evidence that . . . [the]
customer had engaged in ‘characteristic stalking behavior.’” Dkt. 49.
Because we do not rely on the challenged portions of the reply brief, we
deny the motion to strike as moot.
10 CHRISTIAN V. UMPQUA BANK
II.
We review de novo the district court’s grant of summary
judgment. Davis v. Team Elec. Co., 520 F.3d 1080, 1088
(9th Cir. 2008). “[W]hether the plaintiff has established that
she or he was subjected to a hostile work environment, and
whether the employer is liable for the harassment that caused
the environment” presents “mixed questions of law and fact
that we review de novo.” Little v. Windermere Relocation,
Inc., 301 F.3d 958, 966 (9th Cir. 2001), as amended (Jan. 23,
2002). Viewing the evidence in the light most favorable to
Christian, the non-movant, “we must determine whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,
1033 (9th Cir. 2005). “We do not weigh the evidence or
determine whether the employee’s allegations are true.”
Davis, 520 F.3d at 1088.
III.
Title VII and its state counterpart, the Washington Law
Against Discrimination (“WLAD”), 7 prohibit sex
discrimination in employment. See 42 U.S.C. § 2000e et
seq.; Wash. Rev. Code. § 49.60.180(3). Recognizing that
“[a] discriminatorily abusive work environment . . . can and
often will detract from employees’ job performance,
discourage employees from remaining on the job, or keep
7
The district court treated the federal and state claims as
functionally identical, an approach Christian replicates in her briefing on
appeal. (Umpqua does not address the state claims in its brief at all.)
“Because Washington sex discrimination law parallels that of Title VII,”
we, too, consider Christian’s federal and state claims together. Little,
301 F.3d at 966; see also Blackburn v. State, 375 P.3d 1076, 1080 (Wash.
2016) (en banc).
CHRISTIAN V. UMPQUA BANK 11
them from advancing in their careers,” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 22 (1993), Congress enacted “Title
VII to prevent the perpetuation of stereotypes and a sense of
degradation which serve to close or discourage employment
opportunities for women.” Ellison v. Brady, 924 F.2d 872,
881 (9th Cir. 1991) (quoting Andrews v. City of
Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990)).
To establish sex discrimination under a hostile work
environment theory, a plaintiff must show 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. See
Little, 301 F.3d at 966; Antonius v. King Cty., 103 P.3d 729,
732 (Wash. 2004) (en banc). At issue here is only whether
the harassment Christian suffered was severe or pervasive
and whether Umpqua is liable for it.
A.
To determine whether the conduct was sufficiently
severe or pervasive, “[w]e must consider all the
circumstances, including ‘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, 520 F.3d at 1095 (quoting
Harris, 510 U.S. at 23). “The required level of severity or
seriousness ‘varies inversely with the pervasiveness or
frequency of the conduct.’” Nichols v. Azteca Rest. Enters.,
Inc., 256 F.3d 864, 872 (9th Cir. 2001) (quoting Ellison,
924 F.2d at 878)).
The district court held that Christian’s harassment claims
failed as a matter of law because no reasonable juror could
conclude the customer’s conduct was severe or pervasive
12 CHRISTIAN V. UMPQUA BANK
enough to create a hostile work environment. The court
declined to consider much of the record evidence of
misconduct because “seven months elapsed between” the
harassment occurring in February 2014 and that occurring in
September 2014, and because many of the incidents did not
involve “direct, personal interactions” between Christian
and the customer. Thus, the court accepted only one incident
as actionable harassment—the customer’s visit to the bank
in September 2014 to reopen his account—and concluded
that, “[w]ithout more, . . . this single incident is not sufficient
to constitute a hostile workplace.” The district court erred in
three respects.
First, the court erred in isolating the harassing incidents
of September 2014 from those of February 2014. They
should be evaluated together. “The real social impact of
workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships,”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–
82 (1998), and “what might be an innocuous occurrence in
some circumstances may, in the context of a pattern of
discriminatory harassment, take on an altogether different
character, causing a worker to feel demeaned, humiliated, or
intimidated on account of her gender.” Draper v. Coeur
Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998). The
harassment Christian endured in February involved “the
same type” of conduct, “occurred relatively frequently,” and
was perpetrated by the same individual as the harassment in
September 2014. 8 Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 120–21 (2002). Christian understandably
experienced the harassment not as isolated and sporadic
incidents but rather as an escalating pattern of behavior that
8
Moreover, as discussed below, the harassment did not in fact cease
between February and September 2014.
CHRISTIAN V. UMPQUA BANK 13
caused her to feel afraid in her own workplace. We cannot
say that a juror would not find that fear reasonable or the
resulting environment hostile. The district court’s overly
narrow approach—which ignored the reality “that a hostile
work environment is ambient and persistent, and that it
continues to exist between overt manifestations”—was
error. Draper, 147 F.3d at 1108 n.1.
Second, the district court erred in declining to consider
incidents in which Christian “did not have any direct,
personal interactions with the [c]ustomer,” such as when he
wrote her a letter describing her as his “soulmate,” sent her
flowers, and watched her in the bank lobby. Title VII
imposes no such requirement. In Ellison, for instance, we
concluded that a letter sent to the plaintiff by her co-worker
describing how he “had been ‘watching’ and ‘experiencing’
her” was actionable harassment. 924 F.2d at 880. That the
plaintiff received the letter in the mail while on an out-of-
state business trip—far from her harasser—had no bearing
on our analysis. Id. at 874. Our obligation is to “consider
all the circumstances,” Davis, 520 F.3d at 1095, including
those incidents that do not involve verbal communication
between the plaintiff and harasser, physical proximity, or
physical or sexual touching. 9
9
Because the district court repeatedly emphasized that the customer
“did not attempt to touch Plaintiff physically,” we underscore that
gender-based harassment, like any other form of harassment, need not
involve physical or sexual touching in order to be actionable under Title
VII. See, e.g., Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527–28
(9th Cir. 1995), as amended (Apr. 24, 1995) (finding conduct actionable
that involved repeated phone calls and physical threats but no physical
touching); Frazier v. Delco Elecs. Corp., 263 F.3d 663, 664–65 (7th Cir.
2001) (same, with respect to stalking conduct that involved no physical
touching); see also Equal Emp. Opportunity Comm’n v. Costco
14 CHRISTIAN V. UMPQUA BANK
Finally, the district court erred in neglecting to consider
record evidence of interactions between the customer and
third persons, such as the customer’s repeated visits to the
Esther Short branch to “badger[] [Christian’s colleagues]
about how he was going to get a date with [Christian].”
“Offensive comments do not all need to be made directly to
an employee for a work environment to be considered
hostile.” Davis, 520 F.3d at 1095; see also Woods v.
Graphic Commc’ns, 925 F.2d 1195, 1198, 1202 (9th Cir.
1991) (concluding the harassment was sufficiently severe or
pervasive, even though the plaintiff “heard about most of the
incidents through other employees,” rather than being
directly targeted); Dominguez-Curry, 424 F.3d at 1036.
Christian learned from her colleagues that the customer was
persistently contacting them to obtain information about her.
That she did not witness the customer’s conduct firsthand is
no matter: She heard his message loud and clear. Where, as
here, a plaintiff becomes aware of harassing conduct
directed at other persons, outside her presence, that conduct
may form part of a hostile environment claim and must be
considered.
Viewing all the evidence in the light most favorable to
Christian, we conclude that genuine disputes of material fact
exist as to the severity or pervasiveness of the harassment
such that a jury could find in Christian’s favor. As in Ellison,
the customer—“a person [Christian] barely knew,” 924 F.2d
at 880—repeatedly pestered her, asked her on dates, and sent
her notes and letters declaring that they were “soulmates”
and “were meant to be together.” As in Ellison, the customer
persisted for many months in his unwelcome conduct after
Christian asked him to stop. Id. And, like in Ellison,
Wholesale Corp., 903 F.3d 618, 626 (7th Cir. 2018) (“[Actionable
harassment] need not consist of . . . intimate touching.”).
CHRISTIAN V. UMPQUA BANK 15
Christian was terrorized not only by the customer’s bizarre
and erratic behavior in and of itself but also by its unknown
potential to escalate. See Excerpts of Record at 499 (“I
worried what would come next and if his pursuit of me
would escalate to something physical.”); Ellison, 924 F.2d
at 874 (“I thought he was nuts. I didn’t know what he would
do next. I was frightened.”). Christian’s colleagues also
feared for her safety and repeatedly warned her to be
careful—further bolstering the reasonableness of her
reaction to the stalking. Ellison, 924 F.2d at 879 (adopting
reasonable woman standard). The evidence is more than
sufficient to create a triable issue as to whether the
harassment was sufficiently severe or pervasive to alter the
conditions of Christian’s employment.
Because we conclude that a trier of fact could find that
the harassment altered the conditions of Christian’s
employment and created an abusive working environment,
we turn to the question of Umpqua’s liability.
B.
“[A]n employer may be held liable for sexual harassment
on the part of a private individual, such as [a customer],
where the employer either ratifies or acquiesces in the
harassment by not taking immediate and/or corrective
actions when it knew or should have known of the conduct.”
Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756
(9th Cir. 1997). 10 “[T]he employer’s corrective measures
10
Though the WLAD’s co-worker liability standard mirrors that of
Title VII, see Glasgow v. Georgia-Pacific Corp., 693 P.2d 708, 712
(Wash. 1985) (en banc), we are not aware of any Washington Supreme
Court decision addressing whether the WLAD subjects employers to
liability for harassment by non-employees, such as customers or clients.
The only appellate court to consider the question answered in the
16 CHRISTIAN V. UMPQUA BANK
must be reasonably calculated to end the harassment; the
reasonableness of the corrective action will depend on, inter
alia, the employer’s ability to stop the harassment and the
promptness of the response.” Freitag v. Ayers, 468 F.3d
528, 539–40 (9th Cir. 2006), as amended (Nov. 3, 2006)
(internal quotation marks omitted). Effectiveness is
measured not only by ending the current harassment but also
by “deterring future harassment—by the same offender or
others. If 1) no remedy is undertaken, or 2) the remedy
attempted is ineffectual, liability will attach.” Fuller,
47 F.3d at 1528–29 (internal citation omitted).
Here, the district court held that no reasonable juror
could conclude that Umpqua ratified or acquiesced in the
harassment. The court reasoned that, “[w]hen advised of the
incidents involving the [c]ustomer, Defendant immediately
responded to Plaintiff’s concerns,” both initially in February
2014 and again in September 2014. We disagree. A jury
reasonably could find that Umpqua ratified or acquiesced in
the harassment in February 2014, September 2014, or both.
First, whether Umpqua took prompt, appropriate, and
effective action in February presents a genuine issue of
affirmative and adopted Title VII’s non-employee liability standard. See
LaRose v. King Cty., 437 P.3d 701, 714 (Wash. Ct. App. 2019)
(“[E]mployers may be subject to liability for harassment of their
employees in the workplace, even harassment by nonemployees . . . . [A]
nonemployee’s harassment of an employee in the workplace will be
imputed to an employer if the employer (a) authorized, knew, or should
have known of the harassment and (b) failed to take reasonably prompt
and adequate corrective action.”) (internal quotation marks and citation
omitted). In the absence of contrary authority, we construe the employer
liability standards under Title VII and the WLAD to be functionally
identical. See West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940);
Torrance Nat’l Bank v. Aetna Cas. & Sur. Co., 251 F.2d 666, 669 n.6
(9th Cir. 1958).
CHRISTIAN V. UMPQUA BANK 17
material fact. Although the district court credited Umpqua
with “decid[ing]” in February that “the [c]ustomer would not
be allowed to come back in the bank and . . . should be told
it was inappropriate to send flowers,” Umpqua did not take
steps to implement that decision, such as actually informing
the customer not to return to the bank or closing his
account. 11 Nor did Umpqua take any other action to end the
harassment, such as creating a safety plan for Christian,
securing a no-trespassing order, or discussing the situation
with bank security or Human Resources. Inaction is not a
remedy “reasonably calculated to end the harassment,” and
“[w]e refuse to make liability for ratification of past
harassment turn on the fortuity of whether the harasser . . .
voluntarily elects to cease his activities[.]” Id. at 1529.
Umpqua counters that Christian volunteered to call the
customer and that her action was sufficient to excuse
Umpqua of its liability. As an initial matter, whether
Christian genuinely “volunteered” to call the customer or, as
Christian testified, was pressured to talk to the customer
because Sanseri was uninterested in “deal[ing] with it”
himself is disputed; 12 because Christian is the non-movant,
11
Indeed, Sanseri himself stated that he did not take the minimal
action Umpqua purports he did: He testified that he did not tell Christian
he would ensure the customer did not return to the bank.
12
Umpqua disputes that Sanseri asked Christian to call the customer
and contends that the parties’ Joint Statement of Facts places this issue
beyond dispute. We disagree. The Joint Statement of Facts states, “After
receiving the flowers on Valentine’s Day, plaintiff had a discussion with
her manager, Chris Sanseri. Mr. Sanseri offered to talk to the [c]ustomer
and to tell him that the flowers were inappropriate and that plaintiff was
not interested. Plaintiff told Mr. Sanseri that she would call the
[c]ustomer.” By contrast, Christian testified in her deposition that
Sanseri “asked me if—well, he told me that it was best that I—that he
probably hear from me and that I call him and asked me if I felt
18 CHRISTIAN V. UMPQUA BANK
the evidence must be viewed in the light most favorable to
her. Even were we to credit Umpqua’s version of events,
however, we refuse to accept the notion that a victim’s own
actions immunize her employer from liability for ongoing
harassment. 13 See Nichols, 256 F.3d at 876 (“[B]y
conditioning its response on [Plaintiff’s] reports of further
harassment, [Defendant] placed virtually all of its remedial
burden on the victimized employee . . . . [T]his response was
not sufficient.”).
More importantly, Umpqua’s “action” easily could be
deemed ineffective, since the customer did not “elect[] to
cease his activities[.]” Fuller, 47 F.3d at 1529; see also
Nichols, 256 F.3d at 876 (holding employer liable where its
“solution” failed “to deter future harassment”). Just a few
days after the phone call, the customer hand-delivered a
second letter to Christian’s place of work. Again, Umpqua
took no action. The harassment continued over the course
comfortable calling him and explaining to him that it was inappropriate.
And I said that I’d call him, you know, because it didn’t seem like he
wanted to deal with it.” The Joint Statement of Facts does not necessarily
conflict with Christian’s deposition testimony: Sanseri could have
“offered” to talk to the customer and also asked or pressured Christian
to call the customer. At this stage, we take the evidence in the light most
favorable to Christian and leave this factual dispute to the jury.
13
In its amicus brief, the EEOC argues, compellingly, that this
“action” was inappropriate given that Christian was the victim of
stalking and further contact with the customer could have caused him to
escalate his behavior. See Br. of Amicus Curiae Equal Emp.
Opportunity Comm’n, at 19 (“Such contact was particularly problematic
here because, to individuals engaged in stalking activity, ‘[a]ny kind of
response on the part of the victim, no matter how negative, can be
construed as a sign that she is really interested.’”) (quoting Jane E.
Brody, Personal Health; Do’s and Don’ts for Thwarting Stalker, N.Y.
Times, Aug. 25, 1998)).
CHRISTIAN V. UMPQUA BANK 19
of the following seven months as the customer harassed
Christian’s co-workers about how to get a date with her,
stalked her at the charity event she staffed, and ultimately
reappeared at her workplace in September 2014.
Whether Umpqua’s actions in September were sufficient
is also a question for the jury. Although Umpqua eventually
did close the customer’s account, direct him not to return to
the bank, and transfer Christian to a new branch location, a
trier of fact reasonably could find that Umpqua’s glacial
response—more than half a year after the stalking began—
was too little too late. See Fuller, 47 F.3d at 1528 (noting
that remedy must be prompt); Freitag, 468 F.3d at 540(same).
Further, a jury could find Umpqua’s response
unreasonable because it placed the bulk of the burden on
Christian herself. See Intlekofer v. Turnage, 973 F.2d 773,
780 n.9 (9th Cir. 1992) (“[H]arassment is to be remedied
through actions targeted at the harasser, not at the victim.”).
For instance, Umpqua managers repeatedly suggested that
Christian “hide in the break room during the times when [the
customer] would come into the Bank.” A jury could find the
suggestion that a female employee should be made to hide
in her own workplace unreasonable, callous, and demeaning.
Likewise, a factfinder could determine that the transfers,
first to the Evergreen Square branch and then to the Salmon
Creek branch, also unreasonably burdened Christian. See,
e.g., id. (“While the [defendant] apparently was trying to
solve the situation, it did so at the expense of disrupting
[Plaintiff’s] life. This is not the price that victims must pay
for reporting sexual harassment at the workplace.”). In
Ellison, we rejected the defendant’s argument that its grant
of the plaintiff’s request for a temporary transfer absolved it
of liability for the hostile environment: “[A] victim of sexual
20 CHRISTIAN V. UMPQUA BANK
harassment should not have to work in a less desirable
location as a result of an employer’s remedy for sexual
harassment.” 924 F.2d at 882. We see no reason the same
defense, advanced by Umpqua here, would fare any better.
Moreover, the transfers could be construed as evidence
of just how ineffective Umpqua’s response was. That is, a
juror could find that Umpqua failed so completely in its
obligation “to stop harassment by the person who engaged
in harassment,” id., that Christian felt she had no choice but
to transfer to another bank, accepting less pay and
diminished responsibilities just to escape the stalking. A
forced transfer is no remedy.
In sum, there is more than enough evidence to create a
genuine issue of material fact as to the sufficiency of
Umpqua’s response. Because a jury reasonably could
conclude that Umpqua ratified or acquiesced in the
customer’s harassment, we hold that the district court erred
in granting summary judgment in favor of Umpqua.
IV.
“The purpose of Title VII is . . . through law to liberate
the workplace from the demeaning influence of
discrimination, and thereby to implement the goals of human
dignity and economic equality in employment.” King v.
Hillen, 21 F.3d 1572, 1582 (Fed. Cir. 1994). Because
gender-based harassment threatens the ability of its victims
to thrive in the workplace, employers must act promptly to
remedy its effects and prevent its recurrence. Genuine issues
of material fact exist as to whether Umpqua met this mandate
and, accordingly, we reverse the district court’s grant of
CHRISTIAN V. UMPQUA BANK 21
summary judgment and remand for further proceedings
consistent with his opinion.
REVERSED and REMANDED.