UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sabrina Alberg

v. Case No. 17-cv-79-AJ Opinion No.

Foss Motors, Inc.

MEMORANDUM ORDER

Sabrina Alberg alleges that her former employer, Foss

Motors, Inc., subjected her to a hostile work environment in

violation of federal and state employment law. The parties

consented to the jurisdiction of the undersigned magistrate

judge (doc. no. 9), and Foss Motors moved for summary judgment

(doc. no. 18). The court held a hearing on September 21, 2018,

and at that time indicated that it would deny Foss Motors'

motion. This order provides the specific bases for that ruling.

See, e.g., United States v. Joubert,

, 55 n.1

(D.N.H. 2014), aff'd,

(1st Cir. 2015) (citing In re

Mosley,

, 1328 (11th Cir. 2007)) (noting a district

court's authority to later reduce its prior oral findings and

rulings to writing).

In short, this case must go to a jury because there are

genuine disputes in the record whether Alberg faced harassment

at Foss Motors so severe or pervasive that it altered the

conditions of her employment, whether Foss Motors implemented prompt and appropriate action in response to that harassment,

and whether Alberg was constructively discharged.

I. LEGAL STANDARD

At the summary-judgment stage, the court "view[s] the facts

in the light most favorable to the non-moving party" and

"draw[s] all reasonable inferences in the nonmovant's

favor . . . ." Garmon v. Nat’l R.R. Passenger Corp.,

(1st Cir. 2016) (citation and quotation marks omitted).

The court may only grant summary judgment if the moving party

"shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). The moving party has the initial burden

of "identify[ing] for the district court the portions of the

record that show the absence of any genuine issue of material

fact." Flovac, Inc. v. Airvac, Inc.,

(1st

Cir. 2016). If the movant does so, "the burden shifts to the

nonmoving party, who must, with respect to each issue on which

[s]he would bear the burden of proof at trial, demonstrate that

a trier of fact could reasonably resolve that issue in [her]

favor."

(citation omitted).

2 II. BACKGROUND

The facts, when viewed in the light most favorable to

Alberg, are as follows. 1 Foss Motors is an automotive sales and

service facility with approximately 40 to 50 employees. Doc.

no. 18-3 at 5. Larry Foss owns and manages Foss Motors, id. at

5-6, and David Andonian serves as general manager, doc. no. 18-4

at 5. From October 1, 2015, to June 9, 2016, Alberg worked for

Foss Motors as a service writer. Doc. no. 19 at 16, 21, 26,

109. Alberg's schedule called for her to work approximately 45

hours per week, plus certain Saturdays. Id. at 33-34. She

reported to Dave Barry, Foss Motors' service manager. Id. at

21.

A. Comments

During her tenure, Alberg received unwelcomed comments from

other Foss Motors employees. Keith Richardson, a diesel

technician, made many of these comments. On Alberg's first

Saturday, Richardson commented on how "hot" or "sexy" she looked

1 The following narrative is based in large part on Alberg’s deposition testimony. Several other individuals involved in the relevant events have provided materially different testimony. At this stage, however, the court must credit Alberg’s deposition to the extent it is based on her personal knowledge and material to the outcome. See Velazquez-Garcia v. Horizon Lines of P.R., Inc.,

(1st Cir. 2007). Indeed, accepting contrary testimony would require the type of weight and credibility judgments the court may not make at the summary- judgment stage. See Hicks v. Johnson,

(1st Cir. 2014).

3 and stated that he would like to "throw [her] up on his desk."

Id. at 99; 106; doc. no. 18-6 at 2. On a different occasion,

Richardson grabbed a receipt that Alberg had taken out of her

pocketbook and told Alberg that he was making sure she was not

on welfare and "wasn't one of those moms." Doc. no. 19 at 98-

99. Richardson further stated he was "pretty sure [he knew] why

[Alberg's] husband left [her] to begin with." Id. at 98-99.

Richardson commented about Alberg's ex-husband on other

occasions, including wondering aloud whether her ex-husband

"traded [her] in for some hot blonde." Id. at 108.

Richardson's comments made Alberg feel degraded and

belittled, particularly as a single mother. Id. at 99-100. On

at least one occasion she reported the comments to Andonian.

Id. Alberg specifically asked Andonian whether she was expected

to work in an environment where she felt that people did not

view her as a person. Id. at 100. Andonian responded that it

was just "[Richardson] being [Richardson]," that it was part of

Richardson's attitude, and that Richardson did not mean anything

by it. Id. at 99-100. Alberg also raised Richardson's conduct

with Barry "multiple times," offering to quit after Richardson's

comment about the receipt because it made her "feel like crap."

Id. at 107-09. There is no indication in the record that

Andonian, Barry, or anyone else ever addressed the comments with

Richardson.

4 Alberg was also the target of a comment by a Foss Motors

employee identified in the record only as "Wayne." On Tuesday,

June 7, 2016, Foss called Alberg and requested that someone

remove a Siemens Electric truck from the truck bay so that Foss

could park his motor home. Id. at 51. Alberg relayed this

request to Wayne, who responded by offering to "give [Alberg]

some semen in [her] mouth." Id. at 51-52. Alberg reported

Wayne's comment to Barry and Andonian, stating that "enough is

enough" and that she did not need "13-year[-]old comments of

what [Wayne] wants to do because it was a Siemens Electric

truck." Id. at 52. Barry responded, "Ah it's Wayne, you know.

I'll talk to him. It's Wayne." Id. Andonian said nothing.

Id. It is unclear from the record whether any Foss Motors

employee ever address this comment with Wayne. 2

B. June 8 and 9, 2016

In June 2016, Richardson twice slapped Alberg on the butt.

The first slap occurred on June 8, when Alberg was speaking with

a customer at her desk. Id. at 56-59. Alberg told Richardson

not to put his hands on her. Id. at 57, 59, 63. Richardson

laughed and walked away. Id. at 59, 62, 63. Alberg’s face

2Alberg contends that she was the target of other similar comments, as well as whistling and catcalling, but does not provide specifics with respect to those incidents. Doc. no. 18- 6 at 2. There is no indication in the record that she ever mentioned these other incidents to her coworkers or reported them to her superiors.

5 turned red and her eyes welled up. Id. at 57. Once Alberg

finished with the customer, Foss Motors' parts manager, Brian

Dion, approached her. Id. at 60-61; doc. no. 18-5 at 9-10.

Alberg told Dion what Richardson had done, and Dion brought her

to Andonian’s office. Doc. no. 19 at 61; doc. no. 18-3 at 9-15.

With Dion present, Alberg reported Richardson's conduct to

Andonian. Doc. no. 19 at 61-62; doc. no. 18-5 at 13. Alberg

was upset and indicated that, while she had tolerated some of

the previous comments, physical contact crossed a line. Doc.

no. 19 at 61-63. Though Andonian apologized and noted that

there had been issues with Richardson in the past, he also

indicated that Richardson was Foss Motors' only diesel mechanic

and made the company a lot of money. Id. at 64-65. Andonian

noted that Richardson would be on vacation the following week.

Id. at 65. After speaking with Andonian, Alberg returned to

work, id. at 67, and Andonian reported to Foss what had

happened, doc. no. 18-3 at 11. Foss scheduled a meeting with

Andonian and Alberg for the following morning. Id. at 11-12.

Alberg met with Foss and Andonian the next morning as

scheduled. Doc. no. 19 at 68. At that meeting, Andonian stated

that his first thought was to let Richardson go. Id. at 68-69.

Andonian again mentioned that Richardson generated a lot of

business for Foss Motors but suggested that this meant

Richardson should be held to a higher standard. Id. Foss

6 suggested that the technicians were a "good old boys' club" that

he should have addressed a long time ago, but at the same time

mentioned that Richardson made Foss Motors a lot of money. Id.

at 69. Foss noted that Richardson was on vacation the following

week and suggested that it "should help" to let time pass, but

also noted that Richardson would "drinking all week" with his

"biker buddies," which Foss thought might make his conduct

worse. Id. at 69-70. Foss ultimately indicated that he would

speak with Richardson and "go from there." Id. at 70. He also

suggested that it might be time to bring somebody in to provide

sexual-harassment training. Id. at 70-71. Alberg testified at

her deposition that she never told Andonian or Foss not to

discipline or fire Richardson, but that she could not recall

whether she requested that he be fired. Id. at 70.

Foss and Andonian met with Richardson after meeting with

Alberg. Id. at 71. According to Foss and Andonian, they

reprimanded Richardson and told him that they would deal with

his conduct after his vacation. See doc. no. 18-3 at 14-15, 21-

23; doc. no. 18-4 at 14-15. There is no evidence in the record

that Richardson received any other punishment, and Foss

testified that he did not conduct any additional investigation.

Doc. no. 18-3 at 21. Neither Foss nor Andonian ever informed

Alberg what was discussed at that meeting. Doc. no. 19 at 71.

7 Alberg observed Richardson return to work once the meeting

ended. Id. 3

Later that same day, Richardson slapped Alberg on the butt

again, this time so hard it stung. Id. at 71. Alberg went to

Andonian's office, told him what had happened, and indicated

that Foss Motors might not be the right place for her to work.

Id. Andonian responded that he wanted to speak with Richardson.

Id. Alberg returned to her desk, and Andonian called Richardson

into his office. Id. After speaking with Andonian, Richardson

went back to work. Id. As he passed Alberg's desk, Richardson

shook his head and made a noise. Id. at 76. Though she did not

know what Andonian and Richardson had discussed, it was clear to

Alberg that Richardson had not been fired. Id. at 76, 79-80.

Alberg immediately grabbed her pocketbook and went to

Andonian's office. Id. at 71-72, 76. On her way, she

encountered Wayne, who invited her down to his bay in the garage

and promised he would not slap her butt. Id. at 76. Once she

got to Andonian's office, Alberg noted that Richardson had hit

3The record is ambiguous as to when this meeting occurred. Alberg testified that Richardson met with Foss and Andonian on the morning of June 9 and then met with Andonian again after the second slap later that day. See infra pp. 8, 17-18. Foss and Andonian both testified that only one meeting occurred, but disagreed whether it happened after the first or second slap. Compare doc. no. 18-3 at 15-16 with doc. no. 18-4 at 15-16. The court adopts Alberg's version for the purposes of this narrative, but notes this discrepancy because it arises again in the discussion below.

8 her two days in a row and asked Andonian how she was supposed to

feel comfortable working at Foss Motors under the circumstances.

Id. at 71-72. Andonian responded that maybe Alberg "should take

the day and think about it." Id. Upset, Alberg replied, "I

should think about it? I didn't do anything. He hit me two

days in a row. I asked him not to. And it was two days in a

row. And I should think about it?" Id. Alberg left Foss

Motors and did not return the following day. Id. at 80.

C. Aftermath

Alberg's last day at Foss Motors was June 9, 2016. Id. at

16. Foss left Alberg a voicemail after she left, and then

emailed her on June 10 asking whether she had received the

voicemail and suggesting that they meet the following Monday.

Id. at 80-81. Alberg did not respond to Foss's call or email.

Id.

Barry, who was out on the day of the incidents, also called

Alberg on June 10 to ask what happened and see if she was okay.

Id. at 82. Barry asked whether anyone had offered to terminate

Richardson. Id. When Alberg responded no, Barry stated that it

was "harassment 101." Id. Barry asked whether Alberg would be

willing to come in the following week to train another employee,

but Alberg declined. Id. Barry asked whether Alberg would

return to work if Richardson was fired, and Alberg said she

would. Id. at 82-83.

9 The day after Alberg left, Foss contacted an attorney about

how to handle the situation. Doc. no. 18-3 at 26-27. The

following week, Foss decided to terminate Richardson. Id. at

27. When Richardson returned from vacation, Andonian informed

him that he was being let go due to his actions. Doc. no. 18-4

at 18, 20. Alberg timely filed a charge of discrimination with

the New Hampshire Commission for Human Rights and the Equal

Employment Opportunity Commission. Doc. no. 1 ¶ 5. Only then

did she learn that Richardson had been fired. Doc. no. 19 at

83.

III. DISCUSSION

Alberg contends that Foss Motors violated Title VII of the

Civil Rights Act 4 (Count I) and the New Hampshire Law Against

Discrimination 5 (Count II) by subjecting her to a hostile work

environment. Foss Motors moves for summary judgment on both

counts, raising three alternative arguments. First, Foss Motors

contends that the record fails to show sufficiently severe and

pervasive harassment for Alberg's claims to go to a jury. Next,

Foss Motors argues that the record demonstrates as a matter of

law that it implemented prompt and appropriate action in

response to any harassment. Finally, Foss Motors argues that

4 42 U.S.C. § 2000e

5

-A:7.

10 there is insufficient evidence to support Alberg's assertion

that she was constructively discharged, and that the court

should limit her recovery accordingly. 6 Alberg counters that

material disputes in the record preclude summary judgment on any

aspect of her claims.

The court considers each of Foss Motors' arguments in turn.

In doing so, the court assumes (as do the parties in their

papers) that both claims may be analyzed together under the

federal standard. See Rolfs v. Home Depot U.S.A., Inc.,

(D.N.H. 2013) (citations omitted) (“Because

the New Hampshire Supreme Court relies on Title VII cases to

analyze claims under [§] 354–A, the court will address Rolfs’

state and federal claims together using the Title VII standard.”

(brackets and internal question marks omitted)); Madeja v. MPB

Corp.,

(2003) (relying on federal precedent to

construe a claim under § 354-A).

A. Hostile Work Environment

"To succeed with a hostile work environment claim, a

plaintiff must show harassment sufficiently severe or pervasive

6 Alberg does not bring a separate claim for constructive discharge, but does allege that the hostile work environment to which she was subjected "result[ed] in her constructive termination." Doc. no. 1 ¶ 51. At the hearing, Foss Motors clarified that it did not seek to have Alberg's claims dismissed for lack of evidence of constructive discharge, but did ask that her recovery be limited.

11 so as to alter the conditions of her employment and create an

abusive work environment." Maldonado-Catala v. Municipality of

Naranjito,

(1st Cir. 2017) (citations, brackets,

and internal quotation marks omitted). "The challenged conduct

must be both objectively and subjectively offensive, such that a

reasonable person would find it hostile or abusive and the

plaintiff did in fact perceive it to be so."

(same

omissions). When analyzing a hostile work environment claim, "a

court must mull the totality of the circumstances, including

factors such as the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interfered with an employee's work performance."

(same

omissions). In essence, a court must "distinguish [] between

the ordinary, if occasionally unpleasant, vicissitudes of the

workplace and actual harassment." Rivera-Rivera v. Medina &

Medina, Inc.,

(1st Cir. 2018) (same omissions).

"Subject to some policing at the outer bounds, it is for the

jury to weigh [the relevant] factors and decide whether the

harassment was of a kind or to a degree that a reasonable person

would have felt that it affected the conditions of her

employment."

(same omissions).

The court has little trouble concluding that a jury must

decide whether Alberg faced harassment so severe or pervasive

12 that it violated Title VII and § 354-A. Alberg testified at her

deposition that Richardson twice slapped her on the butt, the

second time so hard it stung. She testified that she reported

both incidents to Andonian, but that each time Richardson was

allowed to return to work. She further testified that in little

more than eight months working for Foss Motors, her coworkers

subjected her to numerous comments that, when viewed in her

favor, were at least inappropriate and at times sexually

explicit. These included Richardson telling her that he wanted

to "throw [her] up on his desk" and Wayne offering to give her

"some semen in [her] mouth." She testified that she raised

these comments at least once with Andonian and multiple times

with Barry, at one point offering to quit. When considering

this evidence in its totality, a reasonable jury could conclude

both that Alberg found the conduct at issue to be subjectively

hostile or abusive and that it was objectively reasonable for

her to feel that way. Summary judgment is therefore not

appropriate.

Foss Motors resists this conclusion by painting the

comments as irrelevant to the court's analysis. This is so,

according to Foss Motors, because Alberg did not find the

comments subjectively offensive and because the comments were

too sporadic to amount to actionable harassment. The former

argument is inconsistent with the record: while Alberg indicated

13 during her deposition that she tolerated some of the comments,

she also testified that she reported certain comments to Barry

and Andonian, questioned whether she should have to work in an

environment where such comments were made, and one time offered

to quit due to one of the comments. From this testimony, a jury

could find that Alberg subjectively believed the comments were

offensive. And while "offhand" comments alone are not enough to

support a hostile work environment claim, see Flood v. Bank of

Am. Corp.,

(1st Cir. 2015), the record here is

not so limited. As discussed, there is evidence in this case

that at least two of the comments were sexually explicit and,

more importantly, that Richardson twice slapped Alberg's butt.

Such evidence pushes this case from one not involving actionable

harassment as a matter of law to one a jury must decide. See

Rivera-Rivera,

,

Foss Motors disputes this last point, arguing that the

conduct at issue here is less severe than conduct courts have

previously found insufficient to support hostile work

environment claims. Foss Motors cites five cases to support

this contention, but only two are binding on this court:

Chamberlin v. 101 Realty, Inc.,

(1st Cir. 1990),

and Morgan v. Massachusetts General Hospital,

(1st

Cir. 1990). But even assuming these decades-old decisions

reflect the modern state of Title VII jurisprudence in this

14 Circuit, neither requires an entry of summary judgment for Foss

Motors. Chamberlin is readily distinguishable because it did

not involve the sort of sexually explicit comments alleged in

this case and because the only physical contact at issue there

was the defendant's president twice taking the plaintiff's hand

without permission.

. Likewise, the three

incidents of harassment alleged in Morgan — that the plaintiff's

coworker stood behind the plaintiff when he mopped, causing the

plaintiff to bump into the coworker; that the coworker stood

next to plaintiff in the restroom and "peeped" at the

plaintiff's "privates"; and that the coworker "pull[ed] on" the

plaintiff while trying to get the plaintiff to dance at a

Christmas party, see

, 192-93 — bear little

resemblance to the circumstances here. Without belaboring the

point, nothing in Chamberlin or Morgan persuades the court that

Foss Motors is entitled to judgment on this issue as a matter of

law.

B. Employer Liability

Because Alberg contends that she was harassed by coworkers,

not supervisors, she must make an additional showing for

liability to extend to Foss Motors. Namely, she must

demonstrate Foss Motors "knew or should have known of the

charged sexual harassment and failed to implement prompt and

appropriate action." Forrest v. Brinker Int'l Payroll Co., LP,

15

(1st Cir. 2007) (citations and internal

quotation marks omitted). Foss Motors does not meaningfully

dispute that it knew that Richardson slapped Alberg's butt on

two separate occasions. And while Foss Motors contends that

Alberg never informed it of her coworkers' comments, Alberg

testified that she reported at least some of those comments to

Andonian and Barry. The court therefore focuses its analysis on

whether Foss Motors' response was prompt and appropriate. In

doing so, the court bears in mind that this determination "often

requires the sort of case-by-case, fact-intensive analysis best

left to a jury,"

, and that summary judgment is only

appropriate "when the undisputed facts show that a reasonable

jury could not help but conclude that the employer's response

was both timely and appropriate," Wilson v. Moulison N. Corp.,

(1st Cir. 2011) (citation omitted).

A jury considering the present record could reasonably

conclude that Foss Motors failed to promptly and appropriately

respond to Alberg's reports of harassment. Preliminarily,

Alberg testified during her deposition that Andonian and Barry

both downplayed Richardson and Wayne's comments, and there is no

indication that anyone at Foss Motors ever addressed those

comments with Richardson or Wayne. Far more important, however,

is Foss Motors' response when informed that Richardson had

slapped Alberg's butt. On this count, there is no dispute that

16 Foss and Andonian at most reprimanded Richardson and told him

that they would take the matter up once Richardson returned from

vacation. There is similarly no dispute that Foss and Andonian

allowed Richardson to return to work and to take his scheduled

vacation, and Foss testified that he did not decide to terminate

Richardson until sometime the following week. In contrast,

Alberg testified that when she questioned whether she could

continue to work at Foss Motors under the circumstances,

Andonian suggested that she "take the day to think about it."

Construing this evidence in the light most favorable to Alberg,

the court cannot conclude that Foss Motors' response was prompt

and appropriate as a matter of law.

This conclusion stands regardless of the version of events

the court accepts. As noted above, the record is unclear as to

how many times Richardson met with Foss or Andonian and when

those meetings occurred. Alberg testified that Richardson met

with Foss and Andonian after the first slap and with just

Andonian after the second. Andonian and Foss both testified

that they only met with Richardson once, but disagreed whether

that meeting occurred after the first or second slap. There is

no dispute, however, that Richardson was only disciplined once

before he left on vacation. Thus, a jury could reasonably

conclude, depending on which version it believes, that Foss

Motors' response was not prompt or appropriate either because

17 (1) Richardson was not disciplined at all after the first slap

or (2) received no additional discipline when he slapped Alberg

a second time. Additionally, the court is unaware of any case

holding that it is an appropriate as matter of law to allow an

employee to return to work under the circumstances presented

here. Rather, this case requires the precise sort of "fact-

intensive analysis best left to a jury." Forrest,

.

The court reaches this conclusion cognizant that Title VII

"does not invariably require termination or suspension as a

response to harassment (even very serious harassment)." Wilson,

(citation omitted). The court imposes no such

requirement. Indeed, Foss Motors may well be able to

persuasively argue that its response in this case was timely and

appropriate given the specific circumstances it faced. All the

court holds now is that a jury, not the court, must resolve this

issue.

C. Constructive Discharge

Foss Motors argues that even if it is not entitled to

summary judgment on the merits, the court should still conclude

that Foss Motors did not constructively discharge Alberg and

should limit her recovery accordingly. A party alleging

constructive discharge "must show that (1) a reasonable person

in her position would have felt compelled to resign and (2) she

18 actually resigned." Cherkaoui v. City of Quincy,

(1st Cir. 2017) (brackets, internal quotation marks, and

citations omitted). 7 When assessing this issue, a court "must

gauge whether the working conditions imposed by the employer had

become so onerous, abusive, or unpleasant that a reasonable

person in the employee's position would have felt compelled to

resign."

(citation omitted). This test "is one of

objective reasonableness."

(citation omitted).

Because there is no dispute Alberg resigned on June 9, the

sole question is whether a reasonable person in her position

would have felt compelled to do so. There is evidence in this

case that: (1) when meeting with Alberg after the first slap,

Andonian and Foss both commented on how much money or business

Richardson brought in; (2) Foss suggested during that meeting

that he would allow Richardson to take his vacation; (3) Foss

ultimately decided to speak with Richardson and "go from there";

(4) Richardson was allowed to return to work after both slaps;

(5) no one ever informed Alberg of the discipline Richardson

received; and (6) after allowing Richardson to return to work a

7 Because Foss Motors' constructive-discharge arguments focus on the calculation of damages rather than an underlying claim, they would arguably have been more appropriately raised in a motion in limine or some other pretrial motion. The court nonetheless addresses this issue now, as both parties briefed it and presented argument at the hearing. In doing so, the court applies the standard used by courts assessing constructive discharge as an independent cause of action.

19 second time, Andonian suggested that Alberg "take the day and

think about it" when she questioned whether Foss Motors was a

place she could continue to work. There is also evidence that

Andonian and Barry downplayed Richardson and Wayne's comments,

that neither Richardson nor Wayne was ever disciplined for those

comments, and that the comments continued up until the day

Alberg resigned. A jury presented with this evidence could

conclude that it was objectively reasonable for Alberg to

believe that Richardson would not face meaningful reprisal for

his conduct and that resignation was the only way to avoid

future harassment.

Foss Motors makes three arguments as to why it is entitled

to summary judgment despite this evidence. First, Foss Motors

contends that Alberg unreasonably failed to return to work or

respond to Foss's voicemail and email. But as Foss Motors

itself acknowledges, the court's analysis focuses on a

plaintiff's circumstances at the time of her resignation, not

what happened after the fact. See doc. no. 18-1 at 13.

Whatever relevance these post-resignation facts might have to

other issues in this case (such as mitigation of damages), they

do not bear on whether a reasonable person in Alberg's position

would have felt compelled to resign when she did.

Foss Motors also argues that it was unreasonable for Alberg

to resign without knowing what discipline Richardson had

20 received. This argument similarly overstates the scope of the

court's analysis. While the test is an objective one, there is

no requirement that the evidence be viewed from the perspective

of an omniscient third party. Rather, the question is whether a

reasonable person in the plaintiff's position would have felt

that she had no choice but to resign. See Cherkaoui v. City of

Quincy,

. A reasonable jury could answer this

question in the affirmative.

Finally, Foss Motors contends that Alberg unreasonably

insisted that Richardson be summarily fired. This misconstrues

Alberg's constructive-discharge argument. Alberg does not argue

that she was constructively discharged because Foss Motors did

not impose discipline with which she agreed. Cf. Wilson,

("[T]he discipline imposed need not be such as will

satisfy the complainant."). She instead contends that at the

time of her resignation, it was objectively reasonable for her

to conclude that Foss Motors had not and would not address

Richardson's conduct in a way that would protect her from future

harassment. When construed in her favor, the record supports

this conclusion.

IV. CONCLUSION

In sum, genuine disputes of material fact preclude the

court from entering summary judgment in Foss Motors' favor on

21 any aspect of Alberg's claims. Foss Motors' motion for summary

judgment (doc. no. 18) is accordingly denied.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

November 27, 2018

cc: H. Jonathan Meyer, Esq. Daniel P. Schwarz, Esq. K. Joshua Scott, Esq

22