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Lonnie J. Williams, Jr. (#005966) ([email protected]) Dawn C. Valdivia (#020715) ([email protected]) Luis F. Ramirez (#022653) ([email protected]) Attorneys for Plaintiff Marcela Johnson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Marcela Johnson, Plaintiff, v. Charles Schwab Corporation, Defendant. NO. CV 04-0790 PHX-EHC PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: LIABILITY

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Marcela Johnson ("Johnson") responds to Defendant's Motion for Summary Judgment re Liability. Summary Judgment is not appropriate in this case because there are genuine issues of material fact as to whether Johnson was terminated in retaliation for reporting an incident of sexual harassment, whether she was treated differently during the sexual harassment investigation because she is a Hispanic female, and whether she was subjected to sexual harassment. I. INTRODUCTION In the fall of 2003, Johnson, a Hispanic female, reported to her manager Cheri Melle ("Melle") that co-worker Edmund Steinert ("Steinert"), a white male, had subjected her to unwelcome conduct. Melle probed Johnson to reveal more information, but

Johnson indicated that she did not want to pursue a formal complaint because she believed that she had taken care of the problem by ignoring Steinert. Melle told Johnson that her allegations were serious and that she had to report them to Human Resources ("HR"). Following Johnson's complaint, Schwab launched an investigation into her

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allegations and compelled her to participate against her will. The investigation revealed that Steinert engaged in inappropriate behavior including massaging female employees in the workplace, commenting on Johnson's weight loss and "boobs." The investigation also revealed that Steinert was a touchy person and subjected other employees to unwelcome comments. As a result of the investigation, Schwab disciplined Steinert for engaging in inappropriate workplace conduct and, contrary to its policies, fired Johnson. II. FACTUAL BACKGROUND A. Johnson's Employment History

Johnson worked at Schwab for almost four years before she was terminated. Schwab's Statement of Facts ("SOF") ¶ 1. During that time, Johnson performed above expectations and received numerous awards from her managers and peers. Plaintiff's Separate Statement of Facts ("SSF") ¶¶ 2-7. In January 2003, Melle considered Johnson an employee in good standing and eligible to post for other positions at Schwab. SSF ¶ 3. Just months before she was terminated, Johnson received awards from her Team Lead Joel Price and several co-workers, including Nelson Javier ("Javier"), Jim Navran, Teresa McClung ("McClung"), and Lesa Folker. SSF ¶ 5. Johnson's performance evaluations were equally complimentary. In her 2002 yearend evaluation, Johnson was rated at "exceeds most," which is the second highest rating. Melle commented that Johnson exhibited flexibility and teamwork. SSF ¶ 2. Similarly, Johnson's quarterly review for the second quarter in 2003 (April through June) ranked her as "distinguished." Finally, in her last quarterly review, dated October 29, 2003, the day before Schwab launched the sexual harassment investigation, Melle wrote the following: Marcela exhibits a strong focus on accuracy and timely processing to ensure excellent client service. She pays attention to detail in processes .... She also is one of the first on the team to jump in and assist service with overflow calls, at times proactively taking calls without requests from Supervisors. I would like her to encourage others to exemplify this valuable trait. She learns from her errors and seldom repeats them. When given research items or escalated issues, she tackles them immediately and thoroughly
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examines the item in question to develop a comprehensive and accurate assessment of the item before giving the conclusion back to management. Marcela should use this attribute to focus on searching for ideas that may help improve the team. SSF ¶ 4 (emphasis added). B. Schwab's Policies

Schwab's anti-harassment encourages employees who believe they have been harassed to come forward and instructs employees not to "discourage others from using the internal complaint reporting process." The policy does not warn employees that they can be fired after making a complaint that is deemed to be false under Schwab's Business Conduct Policy. SSF ¶¶ 99-101, 103. In dealing with harassment complaints, Schwab's management is instructed to (1) obtain the information the employee is willing to share at that time; (2) not retaliate against the employee for raising the complaint; and (3) make every effort to prevent and address harassment and provide leadership conducive to creating a professional work environment. SSF ¶¶ 105, 107. Schwab's policy regarding internal EEO investigations sets forth guidelines for HR investigations, including the following: (1) have the employee put the allegation in writing; (2) explain the policy against retaliation; (3) evaluate only facts, not opinions; (4) determine whether others have witnessed or experienced similar behavior from the same player; (5) inform the complainant of the outcome; (6) explain the reasons for finding that an allegation is deemed unfounded and reinforce the policy against

discrimination/harassment and retaliation; and (7) remind the complainant that her complaint was taken seriously and that you appreciate that she came forward;. SSF ¶¶ 108-110, 112, 114, 117, 119, 121, 123. C. On October 15, 2003, Johnson Reported an "HR" Issue to Melle.

On October 14, 2003, Jeff Hansen ("Hanson"), Director of the Electronic Order Review department ("EOR"), reported to Melle that Johnson had asked him and several of his employees to be quiet because she and other employees were trying to make customer
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calls.1 CSF ¶¶ 17. The EOR employees, which are separated from the BSC employees by a narrow aisle wide enough for someone to walk through, were applauding and talking loud. CSF ¶ 53. The next day, Melle met with Johnson regarding Hanson's report. Toward the end of the meeting, Johnson indicated that she had an issue with Steinert that could have been an "HR" issue, but that she had taken care of it. SSF ¶¶ 8, 9. Melle told Johnson that her allegations were very serious and had to be addressed immediately under the proper chain of command. Johnson said that she did not want to further address the issue because she was afraid someone would get fired. Even though Johnson asked Melle to keep her complaint between the two of them, Melle said that she had to report it to human resources ("HR"). CSF ¶ 14. SSF ¶¶ 8-10. After the meeting, Melle emailed her boss, Lisa Gee ("Gee), stating that she "had the feeling that Johnson was trying to draw her attention away from her responsibility with the issue regarding Jeff Hanson." SSF ¶ 13. Melle also told HR director Tammy Kornegay-Hodges ("Hodges") that she had "some very specific feelings about this comment from Marcela as a pattern exists that she brings things up during difficult conversations that are entirely out of left field, I think, in an effort to bring the attention away from her and onto others." SSF ¶ 14. Melle made these statements even though Johnson complained as a result of Melle's question about issues with Steinert. SSF ¶ 8. D. The Investigation Into Johnson's Sexual Harassment Complaint.

On October 30, 2003, Hodges scheduled a meeting with Melle and Johnson to address Johnson's complaint. SOF ¶ 20. Immediately after Hodges set the meeting, Johnson went to Melle crying and told her that she did not want to go to the meeting and that she did not want to get anyone into trouble. Johnson also told Melle that she could not go through with the meeting because she "had thrown up and was feeling very ill" and that she was in no frame of mind to speak with Hodges because one of her aunts had just been diagnosed with cancer and, the previous week, another aunt had died. Melle
1

Although Melle says in her affidavit that Hanson said that Johnson had "yelled" at them, Melle's email to Hodges regarding the incident and her testimony to the NLRB do not indicate that Hanson used the word "yelled." CSF ¶¶ 17, 18.
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told Johnson that she had to go to the meeting. CSF ¶ 22; SSF ¶¶ 19, 23. Melle subsequently sent an email to Hodges informing her that Johnson was ill, had thrown-up, and could not go through with the meeting. She also said: "I just wanted you to know what the situation will be like. FYI, she just found out that one of her aunts has cancer and may not have long to live. That is another reason she isn't `up to going through with this.'" SSF ¶ 24. Hodges responded to the email with: "I walked over to her desk a few minutes ago. She is clear that we are going to meet." SSF ¶ 25. Prior to the meeting, Johnson saw John Creelman ("Creelman"), a white male, smoking a cigarette and asked him if he remembered seeing Steinert massage Barbara Cazaubon's shoulders and saying that it was disgusting. Creelman confirmed that he had and asked her why she wanted to know. Johnson told him that she had a meeting with HR and asked how she could get out of it. Creelman told her that if she said anything to HR someone would get fired. SSF ¶¶ 27-29. Creelman went to his manager Jeff Bosio ("Bosio), a white male, and told him that Johnson approached him. Bosio subsequently informed Hodges. Bosio also told

Hodges that he and other employees also witnessed Steinert massaging Cazaubon. Bosio was not disciplined for allowing inappropriate conduct. SSF ¶¶ 30, 76, 106. Johnson was apprehensive about the meeting; she was physically ill and emotionally upset. She was also afraid of repercussions for complaining about Steinert because she perceived him as a higher valued employee with a more significant position because he carried a lot of brokerage licenses. SSF ¶¶ 19, 23, 82, 83, 85. During the meeting, Johnson specifically told Hodges and Melle that she did not want to talk about the issue and asked if they could "just forget the whole thing." Hodges told Johnson that she had a legal obligation to follow-up on any complaint of inappropriate conduct. SSF ¶¶ 32, 35. Johnson then explained how Steinert had come from behind while she was sitting at her desk and leaned over her while massaging her shoulders and told her that she looked sexy.2 SSF ¶ 33. After the meeting, Melle sent Gee an email that said that
2

Melle said that Johnson said that Steinert "rubbed up against her." Regardless of the
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"[Steinert] has done this to other women on his own team. Not good." SSF ¶ 45. On October 31, 2003, Hodges met with Steinert. When asked if he had massaged Johnson, Steinhart responded: "If that is what you are hearing, then that's probably what happened." Steinert admitted he is a "touchy" person and that he told Johnson that he liked the way she changed her hair, complimented her on her clothes and body, and that he had talked to her about her "boobs." He also admitted that he had massaged another female's shoulders at least once a week and that such behavior could be viewed as inappropriate workplace conduct. CSF ¶29; SSOF ¶¶ 47-59, 51, 52-53. On November 3, 2003, Hodges met with Creelman, who confirmed that he had witnessed Steinert massage Cazaubon's shoulders and said that it was "disgusting." Creelman also offered his

opinions as to what he believed Johnson's intentions were. CSF ¶ 30; SOF ¶ 34 On November 4, 2003, Hodges met again with Johnson and Melle. CSF ¶ 32. Hodges asked Johnson if she had witnessed Steinhart engage in similar behavior with other employees. Johnson said that she had witnessed Steinhart massage Cazaubon and that Creelman had also witnessed it and said that it was "disgusting." Hodges accused Johnson of seeking out Creelman. Johnson also reported that she heard Steinert tell another co-worker, Vanessa Barragon-Ortiz ("Ortiz"), that she looked good enough to eat and that McClung overheard the comment. CSF ¶ 35; SSF ¶ 33-34. After the meeting, Hodges told Johnson she could return to her desk but not to leave her desk. CSF ¶ 36_. Later that day Hodges met with McClung, who stated that she wished that Steinert would keep things on a professional level and that he had been irritating her since June 2003, and in October 2003, she requested to move away from his desk. McClung said

that Steinert made "unwelcome comments" and confirmed that he was a touchy, feely individual and that she had seen him, when greeting individuals, doing a "rub on the back" or a "pat on the back." SSF ¶ 72-74. Hodges also met again with Creelman to confirm what he understood Johnson's intentions to be. SOF ¶ 34. exact phrasing, it is undisputed that on October 15, 2003, Johnson reported that Steinert had subjected her to unwelcome touching.
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E.

Schwab Disciplined Steinert and Fired Johnson.

Schwab admits that the touching nature of what Johnson said Steinert had done to her is inappropriate and something that should be brought to the attention of HR. Hodges told Steinhart that even if Cazaubon was not offended by the conduct, massaging an employee was not appropriate workplace activity and "Schwab was not a massage parlor." Id. Hodges also instructed Steinhart to immediately stop massaging anyone for any reason and told him "the action of massaging a female employee in the workplace could be construed as sexual harassment under Schwab's policy." As a result of Johnson informing Melle about Steinert's behavior toward her and other female employees, Schwab was able to become aware of that activity and take action to stop it; thereby mitigating risk under its HR policies. SSF ¶¶ 58-61, 128-131. Even though Hodges confirmed Johnson's allegations and disciplined Steinert, Hodges recommended that Johnson be terminated for making "inconsistent and inaccurate" statements about Steinert in violation of Schwab's Business Conduct Policy and implicating "others as witnesses or recipients of unwelcome behaviors" from Steinert. Melle and Gee agreed with Hodges' recommendation. Hodges did not review any of Johnson's personnel files or performance evaluations prior to recommending her termination. SSF ¶¶ 128-131; 86-87. F. After Schwab Fired Johnson, Schwab Collected Negative Information About Her Performance While Following-up with Steinert to See How He Was Doing.

On November 6, 2003, the same day that Johnson is fired, Melle sent an email to herself in which she described a meeting that happened on April 23, 2003, regarding Johnson's behavior. On December 15, 2003, Melle forwarded the email to Hodges. Similarly, on November 11, 2003, Price sent an email to Melle setting forth various past issues regarding Johnson. The following day, Melle forwarded the email to Hodges. On December 16, 2003, Price sent an email to Melle with the subject line "HR." Attached to the email is a document that contains descriptions of issues regarding Johnson. On December 18, 2003, Melle forwarded the email to Gee with the message "stuff on
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Marcela from Joel." Melle also sent Gee an email with the subject line "discussions with Marcela." The email contains an attachment that documents conversations she had with Johnson on October 15 and 28 and November 6, 2003. These communications were all documented after Johnson made her complaint. SSF ¶¶ 93, 95-98. Conversely, after Johnson's termination, Price followed-up with Steinert to see if he was "ok." On November 10, 2003, Price sent him an email, which stated: "When you come in, I was hoping you'd let me know how you are doing. I understand that last week [the week Johnson was fired] was an amazing experience. Just wanted to touch base and see if you are okay." SSF ¶ 94. III. LEGAL DISCUSSION A. Summary Judgment Standard.

Summary judgment is appropriate only if the evidence, viewed in the light most favorable to Johnson, shows that there us no genuine issue of material fact and that Schwab is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.#d.2d 265 (1986). Schwab cannot meet this standard because there are genuine issues of material fact as to whether Schwab terminated Johnson for her complaint of sexual harassment and whether Schwab treated her differently as a Hispanic female. Similarly, Schwab is not entitled to summary judgment as a matter of law because when construing the evidence in the light most favorable to Johnson a jury could reasonably conclude that Schwab fired her for retaliatory and discriminatory reasons. B. Schwab Retaliated Against Johnson for Her Complaint.

To establish a prima facie case of retaliation Johnson must demonstrate that: (1) she engaged in protected activity, (2) she suffered an adverse action, and (3) a causal link exists between her activity and the adverse action. Once Johnson establishes a prima facie case, the burden shifts to Schwab to articulate a legitimate non-discriminatory reason for the adverse action. If Schwab articulates such a reason, the burden shifts back to Johnson to demonstrate that the stated reason is a pretext for a retaliatory motive. Ray v.
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Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). In the context of Title VII, summary judgment is not appropriate if Johnson offers evidence, direct or circumstantial, that a retaliatory reason more likely motivated her termination. Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). A plaintiff relying on circumstantial evidence is not required to produce more, or better, evidence than a plaintiff who relies on direct evidence. Id. at 1030. 1. Johnson Engaged in Protected Activity.

Schwab's argument that Johnson did not engage in protected activity is erroneous because it relies on the incorrect legal standard.3 In this Circuit, to satisfy the first element of her prima facie case, Johnson is required to show only that she had a reasonable belief that the conduct she protested was prohibited under Title VII.4 Passatino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493 (9th Cir. 2000); Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994) cert denied 513 U.S. 1081, 115 S.Ct. 732 (1995); Trent v. Valley Electric Association Inc., 41 F.3d 524 (9th Cir. 1994); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983). "This same interpretation has been adopted by the EEOC and is consistent with a liberal construction of Title VII to implement the Congressional purpose of eliminating discrimination in employment." Sias v. City

Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978); Moyo, 40 F.3d at 985 (Title VII construed broadly; this directive applies to reasonableness of plaintiff's belief that violation occurred). The purpose of the anti-retaliation provision is to bar employers from taking actions that would deter employees from exercises rights guaranteed under Title VII. Zellerbach, 720 F.2d at 1012 (citation omitted). Johnson has presented sufficient evidence for a jury to conclude that she reasonably believed that Steinert had sexually harassed her. First, Johnson told Melle that
3 4

Schwab does not dispute that Johnson's termination was an adverse action. Schwab's reliance on Clark County Sch. District v. Breeden, 532 U.S. 268 (2001), is misplaced. The Court's holding in Clark was limited to the specific circumstances in that case ­ that no reasonable person would have believed that a male supervisor's reading aloud a single sexually explicit comment about female applicant in the presence of two employees during review of applicant profiles was sex discrimination. Id. at ___.
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she had an "HR" issue regarding Steinert. Next, Stienert's conduct of massaging female employees, making unwelcome comments to female employees, complimenting Johnson daily on her hair, legs, and tan, and discussing her "tummy" and "breasts" can reasonably be construed as sexual harassment. Finally, Johnson testified that she believed that such conduct was sexual harassment, unwelcome, and inappropriate. Schwab's reliance on Johnson's statement to Hodges and Melle that she did not want to lodge a complaint of sexual harassment is misplaced because Johnson also said that she was afraid that someone would get fired. A jury could reasonably conclude that Johnson did not want to press forward with her complaint for fear of being terminated.5 Schwab's reliance on Little v. United Techs., 103 F.3d 956 (11th Cir. 1997) is also misplaced. The standard articulated by the Eleventh Circuit is not the same standard articulated in this Circuit or by the EEOC. Little is also distinguishable because, in that case, the plaintiff complained eight months after her co-worker made a single racial comment. Id. at 960. In this case, Johnson was subjected to numerous comments about her appearance and repeated touching over the course several weeks. Finally, Schwab's assertion that Johnson has to show that Steinert's conduct can be attributed to Schwab is unfounded. See Trent, 41 F.3d 524. In Trent, the plaintiff attended a required safety meeting in which the presenter, not her employer, made sexually harassing remarks. She reported the conduct to her employer who terminated her one month later. Trent, 41 F.3d at 526. The Ninth Circuit overturned the district court's grant of summary judgment and found that the plaintiff engaged in protected activity because she was obligated to attend the safety meeting and was justified in believing that Title VII would protect her from the offensive remarks she endured at the meeting. Id. Regardless, Steinert's conduct can be attributed to Schwab because Bosio knew about it and did nothing. See Follkerson v. Circus Circus Enter., Inc. 107 F.3d 754, 755-56 (9th
5

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Schwab treated Johnson's complaint as a sexual harassment complaint. Melle told Johnson that her allegations were serious and had to be reported to HR. Hodges launched a sexual harassment investigation. Schwab concluded that Steinert's conduct was inappropriate and could be construed as sexual harassment under Schwab's policies.
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Cir. 1997) (employer liable for co-worker's harassment if knew of or acquiesced to conduct it and did not take prompt action). 2. Schwab Terminated Johnson Because of Her Protected Activity.

Schwab incorrectly argues that Johnson failed to present any evidence that she was dismissed because she complained about Steinert. The timing of her protected activity and her termination is enough to establish a causal connection. Passatino, 212 F.3d at 507. "Specifically, when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred." Id. (citations omitted). In this Circuit, evidence based on timing can be sufficient to let the issue go to the jury even in the face of alternative reasons proffered by the employer. Id. citing Strother, 79 f.3d at 870-71 (emphasis added). 3. Schwab's Stated Reason for Johnson's Termination is Pretext for Retaliation.

Johnson has introduced sufficient evidence from which a jury could reasonably conclude that Schwab terminated her for her complaint of sexual harassment. Ray, 217 F.3d at 1244. First, Schwab's stated reason that Johnson fabricated her claim of sexual harassment is contrary to the evidence in this case. Steinert did not deny massaging Johnson's shoulders and said that he had probably done it. He also admitted that he had often complimented her and had talked to her about her "tummy" and "breasts."6 Schwab's assertion that Johnson lied during the sexual harassment investigation is equally spurious. As demonstrated by the following chart the majority of Johnson's allegations were supported by the findings from the investigation: Johnson's Statements to Management Steinert massaged her shoulders Steinert told her she looked sexy
6

Finding Steinert said it was probable Steinert denied

Schwab's contention that Johnson fabricated the claim because she and Brad Allen suspected that Steinert had called Allen's wife is also without merit. The evidence upon which Schwab relies is irrelevant and inadmissible because it was not known by the decision-makers when they terminated Johnson; it was discovered almost a year after Johnson's termination. CSF ¶ 14. Even if this evidence is admitted, which it should not be, it is not worthy of credence because Johnson and Allen suspected other individuals of calling Allen's wife as well and never determined who had, in fact, called her.
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Steinert complimented her on her hair and clothing Steinert talked to her about her "tummy" and breasts" Steinert massaged Cazaubon's shoulders Creelman said that Steinert's massaging Cazaubon was "disgusting" Steinert told Ortiz that she "looked good enough to eat"

Steinert corroborated Steinert corroborated Steinert, Cazaubon, Creelman, and Bosio corroborated Creelman corroborated Ortiz and Steinert denied

In light of this evidence, Schwab could not have in good faith believed that Johnson lied during the sexual harassment investigation and a jury could reasonably conclude that Schwab's stated reason is pretext for retaliation. Moreover, Schwab's contention that Johnson tried to secure false statements from Creelman defies the evidence in this case. Contrary to Schwab's assertion, Creelman never testified that Johnson asked him to lie for her. Instead, he testified that she "asked [him] to confirm that [he] witnessed Steinert massaging Cazaubon's shoulders and that [he] thought it was disgusting," which he did. The remainder of Creelman's testimony is based on his feelings, beliefs, and opinions. Contrary to Schwab's policies, Hodges relied on Creelman's opinion of what he understood Johnson's intention to be instead of what the facts actually were. In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court held that the factfinder may infer "the ultimate fact of intentional discrimination" without additional proof once the plaintiff has made out her prima facie case if the factfinder believes that the employer's proffered nondiscriminatory reasons lack credibility. Id. at 147, 120 S.Ct. 2097. The Ninth Circuit has held, following Reeves, that the plaintiff can prove pretext either "(1) indirectly, by showing that the employer's proffered explanation is 'unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Id. (citations omitted); accord Lyons v. England, 307 F.3d 1092, 1113 (9th Cir.2002). The Ninth Circuit has also

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held that "any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact finder," and for that reason "summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the elusive factual question of intentional discrimination." Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995). Here, Schwab initially took the position that every aspect of Johnson's statements made to Ms. Hodge were false. When addressing the EEOC in their Position Statement, Schwab was clear that there was absolutely no evidence to support Johnson's allegations. SSF ¶¶ 46. The same is true in connection with testimony provided at the NLRB hearing. SSF ¶¶ 59. However, later during discovery, it acknowledged that the majority of the statements made by Johnson were objectively confirmed as being correct. SSF ¶¶ 47-49, 51-53, 72-76. This includes the information provided by Creelman, the information she provided regarding the acts of Steinert and her observations of Steinert massaging another employee on an ongoing basis. SSF ¶¶ 63-69. This left Schwab having to admit, despite its earlier allegations, that Johnson's allegations were, at least, partially true. SSF ¶ 44. Likewise, Schwab reported to the EEOC that Ms. Johnson had, in essence, asked Mr. Creelman to lie. As quoted above, a large majority of facts relayed by Mr. Creelman are identical to those stated by Ms. Johnson. The only difference relates to Creelman's opinions that he offered regarding Ms. Johnson's motives. If Schwab had followed its policies that prohibited it from considering opinions, as opposed to facts, a nondiscriminatory decision would have been reached avoiding the events currently taking place before the Court. CSF ¶ 17; SSF ¶¶ 114-118. See Porter v. California Department of Corrections, 383 F.3d 1018 (9th Cir. 2004), superseded by 419 F.3d 885 (9th Cir. 2005) (employer's deviation from policies is evidence of pretext). It is hard to believe a stronger case where a jury could easily disbelieve a company based on its inconsistent actions taken at the time of and following the adverse job action.7
7

The cases cited by Schwab are inapposite. For example, unlike Total Systems, in which the complainant told management that the plaintiff (a witness in the investigation) had gone to her house to try to convince her that an incident had taken place, Johnson asked
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Additionally, Schwab's stated reasons for terminating Johnson contradict the RCIT completed by Hodges. The RCIT states that the reasons for terminating Johnson were because she "provided inconsistent and inaccurate statements" about Steinert's actions towards her and "implicated others as witnesses to or recipients of unwelcome behaviors" from Steinert. Schwab now alleges that Johnson fabricated a claim, lied, and coerced a co-worker to provide false statements. As previously explained, these contentions are untrue.8 See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654 (9th Cir. 2002) (employers use of fundamentally different justifications to support adverse action is evidence of pretext); Quaranta v. Management Support, 255 F.Supp.2d 1040 (D. Ariz. 2003) (inconsistent positions are evidence of pretext). C. Schwab Discriminated Against Johnson as a Hispanic Female.

"Section 1981 provides an independent but overlapping federal remedy for intentional racial discrimination in employment. Because facts sufficient to give rise to a Title VII claim may also support a Section 1981 claim, and employee may seek relief for a retaliatory discharge under both provisions." Miller v. Fairchild Industries, Inc. 885 F.2d 498, 503 (9th Cir. 1989) (citations omitted). Schwab treated Johnson, a Hispanic female, differently than Creelman and Stienert, both white males. Schwab's investigation was prejudiced from the onset. As soon as Johnson made her complaint, Melle immediately expressed preconceived notions about its lack of validity. Then, Price and Melle promised, Steinert, the white male, that they would "work to preserve [his] intent and represent [his] integrity" and that they were "doing [their] best to correctly handle" the situation. These promises were made to Steinert before the investigation had even begun and before Hodges and Melle met with Johnson to purportedly listen to her concerns. Id. Creelman to confirm what he in fact witnessed and said. EEOC v. Total Systems Services, Inc., 221 F.3d 1171 (11th Cir. 2000). Similarly, in Unt v. Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir. 1985), the there was, unlike here, sufficient evidence that the employee was disciplined because of well documented performance deficiencies. 8 Schwab made similar misstatements in its position statement to the EEOC. Schwab told the EEOC that Johnson's claim was "baseless," even though Hodges testified that Johnson's claim was not baseless and was at least partially true.
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When they finally met with Johnson, Hodges and Melle displayed an utter lack of sympathy and an unwillingness to evaluate her concerns fairly. Hodges said that Johnson was already on her "radar" for purported incidents of misconduct that had not been documented in Johnson's personnel file and that Hodges admitted were mostly "anecdotal."9 Additionally, the day after comforting the white male and easing his

anxiety concerning the investigation, Melle and Hodges showed no concern for Johnson's condition caused by illness and a family tragedy. Indifferent to Johnson's apprehension regarding the investigation and her emotional and physical inability to effectively participate in the meeting, neither Melle nor Hodges ever reiterated Schwab's policy against retaliation or thanked her for reporting misconduct in the workplace that they were able to correct. After compelling Johnson to attend the meeting and elaborate on her concerns about Steinert's inappropriate behavior, Schwab immediately began a deliberate campaign to discredit these concerns. Schwab ignored key corroborating statements from other employees such as McClung, Steinert, Cazaubon, and Creelman. Indeed, Schwab disregarded its own conclusions regarding Stienert's conduct. Specifically that Steinert had probably massaged Johnson's shoulders, had talked to her about her body and her looks, and had massaged another female's shoulders and that his manager knew about it and did not do anything to stop the inappropriate conduct. Similarly, Schwab credited Creelman's (white male) beliefs of what Johnson's intentions were even in the face of contradictory facts. Under Schwab's twisted concept of a harassment investigation Steinert, a white male, was treated as the victim and all efforts were made to reassure him and preserve his "integrity," while Johnson, a Hispanic female was treated like a criminal. D. Steinert Sexually Harassed Johnson.

Johnson can establish a prima facie case of sexual harassment. She was subjected All the communications purported to describe Johnson's issues that occurred prior to her complaint were not raised until after she made her complaint. SSF ___.
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to unwelcome verbal and physical conduct of a sexual nature. During the summer of 2003, Stienert leaned over Johnson's back and massaged her shoulders on more than one occasion while telling her that she looked sexy. Steinert also made comments, on a daily basis, about Johnson's clothing and looks, including the size of her breasts, the fact that she had lost weight, and what she ate and drank. He often complimented her on her hair, her tan, and her legs. He also interrupted and commented on her personal conversations. Schwab argues that Johnson cannot establish sexual harassment because she did complain about Steinert's behavior until her deposition. However, Schwab's campaign to discredit her from the moment she made her initial complaint did not permit Johnson to provide additional information. Johnson was afraid that she would be fired. Similarly, Johnson never told Steinert to stop his behavior because she believed that his position within Schwab was more significant than hers because he carried a lot of brokerage licenses. Schwab cannot benefit from its retaliatory tactics by now claiming that Johnson never gave them a chance to remedy the behavior. Additionally, Steinert's conduct was sufficiently severe and pervasive to alter the conditions of Johnson's employment. Johnson testified that she stopped wearing skirts and started wearing pants as a result of his comments about her legs. She said that some of his comments caused her to feel nauseous, like she would want to vomit. Johnson also tried to avoid going to the copy machine because he was located next to Steinert's desk. See Dominguez-Curry v. Nevada Transportation Department, 424 F.3d 1027, 1034-35 (9th Cir. 2005) (genuine issue of fact whether conduct was sufficiently severe or pervasive in light of plaintiff's testimony that alleged harasser made numerous demeaning comments about women in the workplace). Finally, Schwab knew via Bosio that Steinert had engaged in inappropriate conduct and never did anything to stop it. In fact, Steinert's behavior was not corrected until Johnson complained. III. CONCLUSION

Summary judgment should not be granted because a jury could reasonably
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conclude that Schwab retaliated against Johnson for bringing a complaint of sexual harassment to management, that Johnson was treated differently because she is a Hispanic woman, and that she was subjected to sexual harassment by Steinert. RESPECTFULLY SUBMITTED this 12th day of May, 2004. QUARLES & BRADY STREICH LANG LLP By s/Dawn C. Valdivia Lonnie J. Williams, Jr. Dawn C. Valdivia Attorneys for Plaintiff Marcela Johnson

I hereby certify that on May 12, 2006, I electronically transmitted the attached document to the Clerk's office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECF registrants: Joseph T. Clees Christopher Mason Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2415 E. Camelback Road Suite 800 Phoenix, AZ 85016 A copy of this document was provided to The Honorable Earl H. Carroll s/Dawn C. Valdivia

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