Hostile Work Environment Claim Can’t Be Based On Off Worksite, Off Work Hours Communications Between the Employee And A Supervisor With Whom The Employee Was Friends
Atalla v. Rite Aid Corp., 89 Cal.App.5th 294 (2023)
Hanin Atalla and Erik Lund were friends. At some point after their friendship began, they both went to work for Rite Aid. Lund was a District Manager for Rite Aid, and Atalla was a pharmacist and was directly supervised by her store’s pharmacists. Her store’s pharmacist reported to Lund.
At Rite Aid, their friendship continued and, as part of that friendship, they continued to text (via their personal cell phones) frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media, drinking and alcohol, birthdays, fashion, and work issue. They exchanged hundreds of texts. They would go out for coffee and meet up for lunch. Lund and his wife joined Atalla and her husband (and another couple) for dinner to celebrate Atalla’s birthday.
In their final text exchange, which occurred on a Friday night after 11:00 p.m. and after Lund had gotten drunk, Lund texted Atalla to ask how her day went. Atalla responded with texts stating, “I think it was ok, tough because I was fighting my cold but I’m picking it up.” Lund replied, “You are my girl so conquer”; Atalla texted back, “I’m trying my best.” Atalla added: “The senior pharmacist says once I’m comfortable with everything she would love for me to cover for her … that she trusts me.” Lund responded, “That is high praise.” Atalla replied, “But I never know if people are being nice or if they’re serious.”
Lund then sent Atalla a photo of five bottles of wine. Atalla replied, “I’m doing the same with vodka, clearing my cold the Russian way.” Lund texted, “Great choice,” and sent a photo of a bottle of wi e. Later that evening, Lund texted Atalla a “Live Photo” of him masturbating. Atalla—who was in her living room, sitting next to her husband on the couch, when she received the text—could tell at first glance it was an image of his penis. Atalla put her phone face down on her coffee table for 10 minutes, then went into the bathroom and viewed the Live Photo in private so her husband would not see it. While she was in the bathroom, Atalla received another text message from Lund that said, “I am so drunk right now.” Atalla deleted that text and the Live Photo.
Lund then sent another text stating, “Meant to send to wifey,” followed by a text that said, “Going to go die.” Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Atalla called her friend and went into her bedroom. While on the phone with her friend, Atalla received texts from Lund stating, “Both of us” and “Race to the bottom,” accompanied by a photo of his penis. Atalla texted Lund, “Erik, stop please,” to which he replied, “You are right.” That was the end of the exchange.
The next morning, Lund texted Atalla, “Wanted to apologize I was embarrassing drunk last night.” Atalla did not respond.
On Sunday, January 6, 2019, Atalla called her training pharmacist and said she was not feeling well and would not be able to work that week. On Monday, January 7, 2019, Lund texted Atalla asking whether she was still sick, but Atalla did not respond and blocked his number.
On January 10, 2019, Atalla’s counsel sent a letter to Rite Aid asserting a claim of sexual harassment. Waterman’s letter was forwarded to the in-house counsel for Rite Aid, Emily Edmunds.
Edmunds spoke with Atalla’s counsel on January 11, 2019. Atalla’s counsel told Edmunds that Lund sent Atalla a video of himself masturbating and a still picture of his penis. Atalla’s counsel also advised that Atalla “will not be returning to work at Rite Aid.” Atalla’s counsel said he had already obtained a right-to-sue letter and would be filing a complaint that coming Monday, January 15, 2019. He observed the question was about damages and proposed early mediation.
Edmunds immediately directed Divisional Human Resources Leader Rodney Lachin to investigate Atalla s complaint. Lachin met with Lund on the same day, January 11, 2019. Lund admitted sending Atalla the photo and video of his penis. Lachin handed Lund a copy of Rite Aid’s anti-retaliation policy and placed him on suspension. Rite Aid investigated whether there were any other complaints of sexual harassment against Lund; the investigation revealed none.
Rite Aid made the decision to terminate Lund on Monday, January 14, 2019. That same day, Edmunds emailed a letter to Atalla’s counsel advising of Lund’s termination and assuring them, “Ms. Atalla remains an active employee in our system, and she is welcome to return to work.” Edmunds’s letter invited Atalla to call the pharmacy scheduler so she could get back on the schedule (Edmunds provided the number).
Neither Atalla’s counsel nor Atalla responded to Edmunds’s letter, nor did they indicate in any way that Atalla intended to return to work at Rite Aid at some point. Atalla did not contact the scheduler as Edmunds had suggested, nor did she communicate to anyone at Rite Aid that she was uncomfortable doing so or that she needed a leave of absence.
On January 16, 2019, Edmunds spoke to Atalla’s other counsel. During the call, Atalla’s other counsel reiterated that Atalla would not be returning to work at Rite Aid.
Edmunds waited the rest of the week but heard nothing further. Based on the statements of Atalla’s counsel and the lack of any communication to the contrary, Edmunds concluded that Atalla had no intention of returning to work at Rite Aid and, rather, had decided to resign and pursue litigation. Accordingly, on January 21, 2019, Atalla’s status in Rite Aid’s system was changed to “resignation with the possibility of re-hire.” On January 22, 2019, Rite Aid sent Atalla a separation notice, along with her vacation payout.
After Atalla received the separation notice, she did not communicate with anyone at Ride Aid for any needed clarification. She never contacted Rite Aid to indicate she wanted to return to work.
Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.
Atalla then filed sexual harassment, failure to prevent sexual harassment, wrongful constructive termination, discrimination, and retaliation action against her Rite Aid. Rite Aid filed a summary judgment motion. The trial court granted summary judgment in favor of the Rite Aid defendants as to all of Atalla’s claims. Atalla appealed. On appeal, the Court affirmed:
Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.
The trial court concluded Atalla had not raised a triable issue of fact as to the required showing that Lund was acting in the capacity of a supervisor when he sent the inappropriate texts.
We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”
We affirm the trial court’s conclusion that Atalla has not raised a triable issue of material fact with respect to the required showing that Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, Lund and Atalla had an extensive texting relationship, and their late-night text exchange, which occurred outside the workplace and outside of work hours, was spawned from a personal exchange that arose from a friendship between them. Summary judgment is, therefore, proper as to Atalla’s sexual harassment claims.
The Court of Appeal also affirmed the trial court’s grant of summary judgment on Atalla’s constructive discharge claim:
We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”
Here, upon being notified of Lund’s conduct, Rite Aid took immediate steps to remedy the situation. Rite Aid immediately investigated the sexual harassment claim reported by Atalla’s attorneys, terminated Lund expeditiously, advised Atalla’s attorneys that Lund had been fired, invited Atalla back to work, and urged her to contact the scheduler to get back on schedule. Atalla’s attorneys, however, repeatedly advised Edmunds that Atalla would not be returning to work at Rite Aid. Nor was any evidence adduced that Rite Aid intentionally created or knowingly permitted intolerable working conditions that left Atalla with no choice but to resign.
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