January 12, 2021
Christian v. Umpqua Bank, No. 18-35522 (9th Cir. Dec. 21, 2020)
Plaintiff worked at a bank where a customer stalked and harassed her. The customer left plaintiff notes and flowers, and told her she was his soulmate. On one occasion, the customer entered the bank and watched plaintiff from the lobby. The customer also visited another branch of the bank to badger plaintiff’s colleagues about how to get a date with her.
The harassing behavior continued over a period of months. Plaintiff alerted the bank, asking that the customer be prohibited from entering the bank branch where she worked. Plaintiff’s supervisor promised the customer would not be allowed back in the bank. However, the supervisor asked plaintiff to call and tell the customer to stop his inappropriate behavior, and never told the customer he was not allowed back into the bank branch. The customer did not stop his behavior and despite plaintiff’s request and her colleagues’ concerns, the bank did not obtain a no-trespassing order against the customer.
Plaintiff called in sick on two days due to the stress of the customer’s behavior and stated she could not return to work until there was a no-trespassing order. Eventually, the bank closed the customer’s account and told him not to return to the bank. The bank also transferred plaintiff to another branch, where the only available position was one with fewer work hours.
Plaintiff sued the bank alleging sex discrimination based on a hostile work environment theory. The trial court granted the bank summary judgment finding no reasonable juror could conclude that the customer’s behavior was severe or pervasive enough to create a hostile work environment or that the bank ratified or acquiesced in the customer’s behavior.
The 9th Circuit reversed, explaining the trial court (1) did not consider the impact of the customer’s behavior as a whole; (2) failed to consider incidents in which plaintiff had indirect interactions with the customer (e.g., the customer sending flowers and cards and entering the bank to watch plaintiff from the lobby); and (3) neglected to consider the interactions between the customer and plaintiff’s colleagues. The court determined a genuine issue of material fact existed as to the severity and pervasiveness of the harassing behavior and that a jury could reasonably find the harassment created an abusive working environment.
The 9th Circuit also held that a reasonable juror could find the bank liable because it ratified or acquiesced in the customer’s conduct by not taking prompt and effective corrective measures reasonably calculated to end the harassment. The court explained there was a genuine dispute whether the bank failed to act promptly and effectively when it first learned of the harassment because it did not take reasonable steps such as (a) informing the customer he was no longer allowed at the bank, (b) alerting Human Resources or bank security, (c) seeking a no-trespassing order, or (d) making a safety plan for plaintiff. The court added that a reasonable jury could find the bank’s action ineffective because it placed the bulk of the burden to remedy the situation on the plaintiff, asking her to call the customer and hide in a break room if the customer entered the bank. The court also found a forced transfer to another bank branch was not a sufficient remedy.