Sexual Harassment Claims Dismissed; Inappropriate Text Messages Were Sent by Supervisor Not Acting in That Capacity

In Atalla v. Rite Aid Corporation, 2023 WL 2521909 (Cal.App. 5 Dist. Feb. 24, 2023), the court granted defendant’s motion for summary judgment on plaintiff’s sexual harassment claim.

The facts of this case include plaintiff’s supervisor sending her inappropriate text messages. Standing alone, these facts might initially suggest an actionable claim of sexual harassment. However, plaintiff loses, since the sender of the texts was not acting in the capacity of a supervisor when he sent the texts at issue.

As the court explained:

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 January 4, 2019 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.

Atalla and Lund both stated in their depositions that they were close friends and that their friendship predated Atalla’s taking a pharmacy intern position at Rite Aid and continued thereafter. Atalla candidly admitted in her declaration that her friendship with Lund developed before she ever worked at Rite Aid and that this preexisting relationship was wholly unconnected to her work at Rite Aid. As for Lund, he testified he thought Atalla was “one of [his] best friends.”

Both before and after Atalla worked at Rite Aid, she and Lund texted about a range of topics, extensively and frequently, including topics concerning family, vacations, food and dining, alcohol and drinking, people and pets, exercise, as well as chit chat about work. They regularly met for coffee and lunch, got together for holiday and birthday dinners, and were acquainted with each other’s spouses.

Atalla states, in a declaration attached to her opposition to Rite Aid’s motion for summary judgment, that “Lund was simply a career mentor and supervisor” and that she only interacted with him to further herself in her career. Not only do these statements in her declaration contradict her deposition testimony, but they are undercut by the hundreds of texts she exchanged with Lund over the time she knew him. Rather than the occasional networking contact, their interactions were frequent, familiar, candid, and wide-ranging.

Indeed, had their relationship been strictly professional as Atalla states in her declaration, they would not have been texting after 11:00 p.m. on a Friday night (as they did on January 4, 2019), in the first place. Their banter over texts that night—prior to Lund’s texting of the inappropriate photos later in the exchange—was no different in tone and subject matter than loads of their other text exchanges as personal friends. Although Lund began the exchange by asking how Atalla’s week at work went, that is, as the trial concluded, “a common inquiry for a friend.” Even with Lund’s inquiry into how Atalla’s week at work went, their text exchange was highly personal, as reflected in Lund’s feedback, “You’re my girl, [so] conquer.” Atalla testified she was not offended by the personal phrasing because they had previously exchanged similarly friendly text messages with one another. After the introductory inquiry, their text exchange devolved into bantering about alcohol, a subject that frequently came up in their texts. Atalla acknowledged at deposition that they frequently texted about drinking and alcohol. Indeed, on a prior occasion, Lund had texted Atalla, “I drunk help.”

Significantly, when the January 4, 2019 text exchange occurred, both participants were away from the workplace, and it occurred well outside working hours. Lund was in a hotel in Modesto, where he had traveled to meet with his wine group; he had met with the wine group at a restaurant and was back at his hotel. Atalla was at home, sitting on the couch with her husband, sipping vodka and nursing a cold. Atalla testified at deposition that their banter about alcohol that night was unconnected with her employment at Rite Aid and Lund was not supervising her in those texts. They bantered over texts as they usually did, until Lund texted the inappropriate photos. Up until Lund sent the lewd photos, there was nothing remarkable about their text exchange, given their texting history. The timing of the exchange, the fact that the participants were engaged in personal pursuits at the time, and the nature of the exchange, tied the exchange to the personal friendship between Atalla and Lund.

Accordingly, the court concluded that defendant Rite Aid met its burden to show there is no triable issue of material fact, and was therefore entitled to summary judgment on plaintiff’s sexual harassment claims.

Share This: