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Conley v. Stockman Bank

United States District Court, D. Montana, Billings Division

October 14, 2014

CINDY CONLEY and TRACEE BURCHELL, Plaintiffs,
v.
STOCKMAN BANK, Defendant.

FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

CAROLYN S. OSTBY, Magistrate Judge.

I. INTRODUCTION

Plaintiffs Cindy Conley ("Conley") and Tracee Burchell ("Burchell") filed a complaint alleging the following two counts against Defendant Stockman Bank ("Stockman Bank"):

Count I - Violations of Title VII of the Civil Rights Act of 1964 for discrimination based on sex, and for retaliation, and
Count II - Violations of the Montana Human Rights Act, Title 49, MCA, for discrimination based on sex and for retaliation.

Now pending is Stockman Bank's motion to dismiss under Rule 12(b)(6). Defts' Mtn. to Dismiss (ECF 4). [1]

II. BACKGROUND

In addressing this Rule 12(b)(6) motion, the Court must accept the Complaint's fact allegations as true and must construe the pleadings in the light most favorable to the Plaintiffs. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Thus, the following allegations are assumed to be true for purposes of addressing the pending motion to dismiss.

Conley and Burchell are former Stockman Bank employees. Cmplt. (ECF 1) at ¶ 6. They allege that during their employment, they "were subjected to a pattern of unwelcome, inappropriate, and offensive conduct of a sexual nature...." Id . at ¶ 7. At pages 3 through 13 of their Complaint, they recite examples of instances they contend created a hostile work environment, but additionally allege that the offensive conduct was not limited to these instances. Id . at ¶ 7a-7bb. They summarize these contentions by alleging that both Plaintiffs were subjected to a pattern of ongoing and persistent harassment, and that the workplace was permeated with severe and pervasive discrimination that was both objectively and subjectively hostile. Id . at ¶ 8. At an unspecified time, both Conley and Burchell were "forced to resign" from their employment with Stockman Bank. Id. at ¶ 7(bb). The specific instances alleged by each Plaintiff are as follows.

A. Conley's Allegations

Stan Markuson ("Markuson"), the branch president of Stockman Bank,

[M]ade inappropriate sexual comments and jokes to Ms. Conley for many years. One particular instance is when he stood in the doorway of her office, trapping her in her office, and told Ms. Conley in a creepy, flirtatious manner that he would like to see her in a bikini on the beach in Jamaica, where he had just vacationed with his wife and two children.

Id. at ¶ 7(a). Conley was "repeatedly told by other bank personnel, [t]hat's just how Stan is' and that she would have to get used to it." Id. at ¶ 7(b).

In May 2013, Conley was present at a Compliance Department meeting held at a local restaurant. Jeff Flaten ("Flaten"), the Vice President Compliance Director ( id. at ¶ 7(d)), attended the meeting and "talked about his excessive alcohol drinking habits, repeatedly gawked at the young female waitress throughout their meal, and made sure to get the waitress' name off the ticket when he paid." Id. at ¶ 7(h).

Conley and Burchell were present at a Compliance Department meeting held on June 4, 2013. Id. at ¶ 7(k). While celebrating the birthday of Burchell's supervisor, Tami Harwood ("Harwood"), "Mr. Flaten was completely fixated on Ms. Harwood and asked her in a sexually suggestive way if they should all stand in line to spank her or if they all got to spank her at once." Id. After she responded that there would be no spanking, Flaten said, "[o]h, the spanking will come this weekend." Id. Also during the meeting, Flaten discussed "Reg Double D, " and said that it was his favorite regulation "[w]hile fixating on Ms. Conley's breasts." Id. at ¶ 7(l). He "motioned his upper body towards Ms. Conley" and said "it was easy for him to remember that regulation because its name is Double D.'" Id. Mr. Flaten then proceeded to tell a "crude blonde joke' directed at Ms. Conley." Id. at ¶ 7(m).

On July 1, 2013, "Mr. Flaten stood and lingered at Ms. Conley's office door, staring eerily at Cindy for an uncomfortable period of time, making her feel trapped and isolated in her office." Id. at ¶ 7(r).

B. Burchell's Allegations

The Complaint alleges two incidents involving Burchell directly, two incidents that occurred in her presence but involved other employees, and one incident that involved the unnamed waitress at the Compliance Department meeting discussed above.

The first incident occurred on December 22, 2011. Id. at ¶ 7(c). Burchell asked Markuson if he knew that customers could see the main vault from the walk-up window. Markuson "grew enraged, stepped forward and got in Ms. Burchell's face with his finger pointing at and almost touching her face, towering over and physically intimidating her, and told her she better think very carefully about what she says next." Id. The second incident began the next morning when Markuson called Burchell into Harwood's office and again began "yelling at and physically intimidating" Burchell over the teller incident. Id. Burchell reported the incident to the head of the human resources department. Id.

Burchell was also present at the Compliance Department meeting in May 2013, where Flaten gawked at a waitress and got her ...


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