Free Reply to Response to Motion - District Court of Arizona - Arizona

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(JTOER MENOELSON

J. Mark Ogden, AZ Bar No. 0170IS J. Greg Coulter; AZ Bar No. 016890 Kristin R. Culbcrtson; AZ Bar No. 020801 LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 E-Mail: [email protected] cr.com [email protected] [email protected] Attorneys for Defendant Connecticut General Life Insurance Company UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff,
v.

Case No. CIV'04-0627 PHX JAT DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Connecticut General Life Insurance Company, Defendant. Defendant Connecticut General Life Insurance Company ("Defendant" or "CGLIC") hereby submits its reply in support of its Motion for Summary Judgment as follows: A. The EEOC's cause of action for pregnancy discrimination must be dismissed because it cannot establish the fourth element of its priina facie case, that the offer of employment was withdrawn.

CGLIC concedes that the evidence is to be construed in the light most favorable to the non-moving party. Fed. R. Civ. P. 56. Regardless, it remains undisputed that the offer of employment made to Ms. Santa Cruz was never withdrawn, as acknowledged by the EEOC in its Response. Instead, the EEOC argues that a reasonable jury could conclude that the perception of withdrawing a job offer is sufficient to conclude that it was actually
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withdrawn. In doing so, the EEOC relies on the same events already addressed in CGLIC's Motion. A reasonable jury, however, could not conclude that the position was withdrawn, given that all three of the individuals involved unequivocally testified that the offer was never withdrawn, and Ms. Santa Cruz specifically testified that she perceived the offer was withdrawn. Q: So is it more accurate to say that you believe that the you perceived that the offer was withdrawn because of the circumstances?

A: ...

Yes.

Q:

Those [six] things make up the entire group of information that had that made you believe that there wasn't a job offer to be accepted, right? I should have asked was the job still offered. You should have asked that? Yes, I think I should have.

A: Q: A:

(emphasis added) (SOF \ ^ 28, 30). This is further supported by Ms. Gasche's testimony: Q: A: Q: A: Did you ever withdraw the offer of employment to Carmen Santa Cruz because of her pregnancy? Absolutely not. Did you ever withdraw the offer to Carmen Santa Cruz for any other reason? Absolutely not.

(SOF U 28).
Likewise, Ms. Casey testified that the offer of employment was never withdrawn.

(SOF 1 28).
Q:
A:

In your conversations with Ms. Santa Cruz, did you ever withdraw the offer of employment?
No.

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Q:

In the conversation that you were involved in with Ms. Santa Cruz with Sandra Gasche, did you hear Sandra Gasche ever withdraw the offer of employment?
No.

A:

(SOF U 28).
Even taken in the light most favorable to the non-moving party, a reasonable jury would not conclude that the offer was withdrawn, only that Ms. Santa Cruz perceived it so. Perception alone is insufficient to establish that the offer was withdrawn. Thus, the EEOC cannot establish its prima facie case. B. CGLIC cannot be held liable for punitive damages because that is contrary to CGLIC's good faith efforts to comply with Title VII.

Plaintiff presents four arguments to defeat summary judgment of its claim for punitive damages: · · · Inadequacy of CGLIC's policy; Implementation efforts during the relevant time period; Inadequacy of implementation efforts after the relevant time period; and

· Absence of any enforcement efforts. 1. Inadequacy of the policy

The EEOC argues that CGLIC's anti-discrimination policy is inadequate because the EEO policy "completely omits any reference to pregnancy, children, childbirth, or discrimination on the basis of the forgoing."1 The EEOC's argument is without merit. First, CGLIC's list of protected classes exceeds the protected classes mandated by federal law.2 (PSOF U 11). Second, CGLIC's purported "omission" of pregnancy discrimination in that list is hardly surprising because pregnancy discrimination is a form of sex discrimination, The EEOC's argument essentially requires all employers to specifically identify all possible protected classes. Taking the EEOC's argument to its logical conclusion, broadly prohibiting discrimination on the basis of national origin is insufficient. Instead, an employer must prohibit discrimination on the basis of an employee's Hispanic, Asian, Ethiopian, Iranian, etc., origin.
2

As indicated in Exhibit 5 of Plaintiffs Statement of Facts, Defendant's EEO policy explicitly covers the following protected categories: race, color, age, gender, religion, national origin, disability, sexual orientation, veteran, or marital status.

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which is listed. Jackson v. Birmingham Bd. ofEditc. 125 S.Ct. 1497, 1511 (2005). Even the EEOC recognizes this fact. For instance, the EEOC's Charge of Discrimination does not list pregnancy as a separate protected class. (Charge of Discrimination, Exhibit 14). Likewise, the EEOC Intake Questionnaire Attachment does not differentiate pregnancy discrimination from sex discrimination. (Intake Questionnaire Attachment, Exhibit 15). The federal statute proscribing discrimination does not even separately identify pregnancy as a protected class. 42U.S.C. §2000c-2(a)(l). In fact, when Ms. Santa Cruz filled out the Charge of Discrimination, she checked sex as the basis of her discrimination; presumably because pregnancy was not an option. The EEOC's argument that CGLIC's "omission" of pregnancy discrimination in its list of protected classes - separate and apart from sex discrimination - demonstrates bad faith is without merit. Not even the EEOC - the agency charged with enforcing Title VII and the Plaintiff in this case- makes that distinction. 2. Implementation Efforts During the Relevant Time Period

The EEOC also argues that there is insufficient evidence to establish that CGLIC made good faith efforts to implement its policies in late 2001, when the alleged discriminatory conduct occurred. In doing so, the EEOC relies exclusively on the

proposition that the undisputed evidence presented by CGLIC in its Motion for Summary Judgment is "without relevance here, as CGLIC's discriminatory conduct towards Ms. Santa Cruz took place in late 2001." (Resp. 11:22-24). Thus, the EEOC erroneously concludes that "subsequent good faith efforts to comply with Title VII do not insulate an employer from incurring punitive damages for prior acts of discrimination." (Resp. 11:24-25); David v. Caterpillar 324 F.3d 851, 865 (7th Cir 2003)3; Last v. Seaty, Inc. 211 F. Supp. 973, 998 David is not applicable here. The discussion in David, relied upon by the EEOC, is unrelated to the third prone of Kolstad, which forms the basis of CGLIC's Motion for Summary Judgment. Davidaddresses the first prong - whether the employer engaged in a discriminatory practice with malice or indifference - noting that efforts made towards a specific employee after a specific incident of discrimination does not negate punitive damages. David, 324 F.3d at 33-34. The nature and extent of the Defendant's good faith efforts to comply with Title VII were not at issue and not addressed by the Court. Id.

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(W.D. Wis. 2003); Greene v. Coach, Inc. 218 F. Supp. 2d 404, 414 (S.D. N.Y. 2002). Essentially, the EEOC maintains that an employer's good faith efforts to comply with Title VII after the alleged discrimination is per se irrelevant in analyzing the Kolstad affirmative

4 defense. The EEOC, however, ignores Ninth Circuit precedent directly on point. Swinton v. 5
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Potomac Corp.. 270 F.3d 794, 811 (9th Cir. 2001). Because the EEOC's argument is contrary to the law, it should be rejected. The EEOC's argument that CGLIC's post-complaint conduct, including its remedial efforts, is per se irrelevant was addressed and rejected by the Ninth Circuit in Swinton v. Potomac Corporation. 270 F.3d 794, 811 (9th Cir. 2001). In Swinton, the employer sought to admit evidence of its post-litigation remedial "good faith" actions in support of its affirmative defense under Kolstad. In opposition the plaintiff-employee cited numerous cases in support of his argument that evidence of post-occurrence remediation is irrelevant in discrimination cases. The Ninth Circuit rejected this argument. [T]hc issue of discrimination vel non is distinct from the issue of whether punitive damages are warranted. Given the fact of different standards for the imposition of liability and the award of punitive damages it is not unreasonable to conclude that evidence may be irrelevant to proving the former is nevertheless relevant to demonstrate the appropriateness of the latter (and vice versa). Swinton, 270F.3dat 812. The Court then acknowledged that the United States Supreme Court, as well as the Ninth Circuit, has referenced remedial actions taken by defendants when discussing whether punitive damages are appropriate. Id. (citing, BMW of North Amer. v. Gore, 517 U.S. 559 (1996). After evaluating the relevant authority from both sides, the Swinton Court refused to draw the bright-line rule suggested by the EEOC in this case. "In the employment

discrimination context . . . post-occurrence remediation is part and parcel of the legal framework." Swinton, 270 F.3d at 814. The Court also noted, "Ellerth, Faragher, and Kolstad all clearly stand for the proposition that employers should be encouraged to institute anti-harassment measures, and must be given the opportunity to present evidence of such efforts before or after the plaintiff happened to file his complaint." Swinton, 270 F.3d at

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815. See also EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989, 993 (9th Cir. 1998) (preKolstad case; employer's post-complaint cover-up relevant in determining whether punitive damages were warranted); Fuller v. Caterpillar, Inc., 124 F. Supp. 2d 610, 617-18 (N.D. III. 2000) (post-complaint good faith efforts considered in dismissing plaintiffs claim for punitive damages). Notwithstanding Swinton, the EEOC urges the Court to disregard the testimony of Tiffanie Dillard because she was not employed at the Phoenix Service Center at the time Ms. Santa Cruz applied for the position in November 2001. Ms. Dillard was employed by CGLIC in 1999, two years prior to Ms. Santa Cruz's application, although she was not located at the Phoenix Service Center until August 2002. (PSOF U 1). During the relevant period, as a CGLIC Human Resources Consultant and Regional Training Director, Ms. Dillard was aware of CGLIC's EEO policies and how they were implemented. (PSOF 3) 4 . Under Kolstad, the company as a whole is subject to the affirmative defense, not a particular facility. Indeed, testimony regarding a company's good faith efforts to comply with Title VII is not limited to someone located at the facility and, as is often the case, testimony regarding a company's policies may be rendered from a corporate representative located elsewhere. Additionally, the EEOC maintains that because Ms. Dillard was unaware of the "structure" of the Phoenix Service Center in 2001, she lacks the foundation to testify to the ways in which CGLIC implemented its EEO policies. Not only is the EEOC's argument immaterial under Swinton. it mischaracterizes Ms. Dillard's testimony regarding her

Although the EEOC's Statement of Facts suggests otherwise, during the relevant time, Ms. Dillard was the Regional Training Director, and was responsible for the Phoenix Service Center. Although she was not responsible for conducting the training at the facility, she was responsible for providing the training materials to the Phoenix Service Center in 2001 and ensured the 2001 training took place when she was transferred to the facility in 2002. (PSOF 3).
5

Presumably, the EEOC intends to request punitive damages based on the income statements of CGLIC, not the profitability of the Phoenix Service Center.

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knowledge of the "structure."0 That she is not aware of the hierarchy of the Phoenix Service Center in 2001 bears no connection to whether CGLIC implemented its EEO policies. The EEOC also focuses on the training experience of the three employees involved in

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4 Ms. Santa Cruz's job offer to demonstrate that CGLIC did not engage in good faith efforts to
comply with Title VII. This argument is unpersuasive for two reasons. First, Kolstad does not require that employees become aware of CGLIC's policies solely through training courses. Kolsatd, 527 U.S. at 534-35, 199 S.Ct. 2124-25. Second, Kolstad does not require each individual employee to have training. Instead, the good faith effort analysis under Kolstad is based on the company's efforts to educate its workforce about its antidiscrimination policies, regardless of the manner in which the employees are educated. Id. It is undisputed that CGLIC provided several other means of education, in addition to training. (DSOF HH 32-35,37-45).

3.

Implementation Efforts After the Relevant Time Period.

The EEOC takes the unusual position that questions "persist about the adequacy of the training" in existence after 2001. (Resp. 13:13-16). In doing so, the EEOC attempts to create an additional element of proof, currently nonexistent under Ninth Circuit law. Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1292 (9th Cir. 2001), citing, Cadena v. Pacesetter Corp. 224 F.3d 1203, 1210 (10th Cir. 2000); Swinton v. Potomac Corp., 270 F.3d 794, 811-12 (9th Cir. 2001); Passantino v. Johnson & Johnson Consumer Prods,, Inc., 212 F.3d 493, 517 (9th Cir. 2000). The Ninth Circuit docs not require any analysis with respect to the "adequacy of training," nor does the EEOC provide any authority in support of that proposition. The EEOC concedes that non-management employees arc exposed to CGLIC's EEO policies during new-hire orientation, new hire documents, CGLIC's website, wallet sized cards, but it questions the adequacy of CGLIC's implementation efforts because CGLIC
6

CGLIC urges the Court to review Exhibit 9, page 17 of the EEOC's Statement of Facts to illustrate that the testimony referenced Ms. Dillard's familiarity with the hierarchy and various departments at the Phoenix Service Center, which is wholly unrelated to implementing CGLIC's EEO policies.

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provided "no evidence concerning the content of 'five-in-one' posting or the EEO component of the new hire orientation." (Resp. 13:16-22). First, CGLIC is not required to prove the adequacy of the evidence, and, in particular, the two items with which the EEOC

4 takes issue, especially since the EEOC does not dispute the adequacy of the remaining
evidence. The Kolstad analysis requires that the company's efforts be reviewed collectively. Swinton, 270 F.3d at 815. The Ninth Circuit simply requires that CGLIC have an EEO policy, that it inform its employees about the policy, and they enforce it. Passantino, 212 F.3d at 517. Second, it is disingenuous, at best, for the EEOC to suggest it is unaware of the content of the standard fivc-in-one posting.7 Regardless, attached is a copy of the relevant portion of the fivc-in-one posting, setting forth the prohibition on discrimination on the basis of sex, and providing the EEOC's contact information for those who wish to exercise their rights. (Fivc-in-one posting, Exhibit 16). Although CGLIC has an affirmative action program in place, the EEOC contends that it is somehow deficient because it does not include sex-related goals for the Phoenix Service Center. (DSOF ^ H 35-36). Presumably, the EEOC understands that affirmative action goals are aimed at providing opportunities for classes that are underrcpresentcd. Black's Law Dictionary 59 (6th cd. 1990). As stated in CGLIC's Motion for Summary Judgment and repeated here, females are not underrepresentcd; the workforce at Phoenix Service Center is comprised of 86% females. (DSOF U 36). Q: A: (DSOF U 36).8 So there are no goals for improvement in that area? Correct. We are 86% female in our office.

Ms. Dillard testified that CGLIC's fivc-in-one posting contained an EEO component, was posted in two locations throughout the facility, and is approximately two feet by three feet. (DSOF U 45). The EEOC's suggestion that Ms. Dillard's testimony in lieu of the documentary evidence is deficient is without merit.
8

The EEOC's mischaracterization of the evidence and implication that a workforce comprised of 86% females is deficient is tenuous, at best.

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Finally, the EEOC suggests that because CGLIC did not provide any evidence that those involved with Ms. Santa Cruz's application attended classes on proper interviewing, that CGLIC is somehow precluded from seeking the protection of Kolstad. Again, the EEOC misunderstands the affirmative defense offered by Kolstad. That CGLIC has classes that address proper interviewing, which include EEO components, is the relevant inquiry. 4. Absence of Enforcement Efforts

The EEOC maintains that CGLIC has not sustained its burden with respect to its enforcement efforts "during the period through 2001." As addressed above, the relevant inquiry is not limited to 2001. S\vinton. 270 F.3d at 812. With respect to the enforcement procedures in effect in 2001, the EEOC claims that because CGLIC did not provide the documentary evidence, it is precluded from seeking summary judgment. Again, the EEOC makes this argument without any reference to authority stating documentary evidence is necessary. Instead, CGLIC offered the testimony of Ms. Dillard. Deposition testimony is sufficient evidence to support a Motion for

Summary Judgment. Fed. R. Civ. P. 56(e). "There is the annual performance objective that employees and managers are held to regarding the work environment. It's called The People Expectation. Or if you're a manager, it's called The Manager Expectation. So employees are held - - we hold every employee accountable to that expectation of treating employees fairly." (SDOFH44). C. Ms. Santa Cruz's back pay damages terminate as a matter of law.

In its Response, the EEOC attempts to argue that Ms. Santa Cruz's back pay does not terminate because she had justifiable reasons for voluntarily resigning from Security Trust. Moreover, it argues that even if Ms. Santa Cruz was not justified in resigning from Security Trust, the job was not comparable to the job she would have had at CGLIC. arguments are unsupported by the record. These

9

Filed herewith is a Motion to Strike addressing Ms. Santa Cruz's affidavit in support of the EEOC's Response to the Motion for Summary Judgment.

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The EEOC attempts to keep Ms. Santa Cruz's back pay claim alive by relying on her own conclusory and contradictory affidavit submitted in support of the EEOC's Response. The EEOC cannot, however, create a genuine issue of material fact through Ms. Santa Cruz's self-serving affidavit that conveniently alters her previous deposition testimony. Kennedy v. Allied Mat. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991); Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir. 1985); Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975). "[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting h[cr] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Foster, 112 F.2d at 1462; Radobenko, 520

F.2d at 544.
Ms. Santa Cruz originally stated in her deposition that she left Security Trust because she did not like the environment and there were "issues" and "legalities" with Security Trust. In the EEOC's Statement of Facts, however, Ms. Santa Cruz offered an affidavit in which she stated that the "issues" to which she referred in her deposition involved her subjective belief that Security Trust was disorganized, supervisory personnel did not get along, and she heard one rumor that Security Trust was engaging in night trading. Santa Cruz failed to identify these issues during her deposition and instead conveniently identifies them in the Response to support her position that she was justified in quitting her employment with Security Trust and thus, entitled to back pay. Unfortunately for Santa Cruz, she cannot now rely on a self-serving and contradictory affidavit to create an issue of fact with regard to back

pay. Id.
Instead, the record reflects that Santa Cruz's back pay claim terminated when she became employed at Security Trust with a starting salary of 330,000.00, which was considerably more than she would have made at CGLIC. (DSOF 46, 47). Moreover, the record shows that Ms. Santa Cruz voluntarily resigned from Security Trust and became employed with Wells Fargo in July 2002, where her starting salary was also more than

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offered at CGLIC. (DSOF 48). Accordingly, even if Ms. Santa Cruz was entitled to back pay damages, her claim terminated when she became employed with Security Trust. D. Conclusion

For the foregoing reasons, Defendant respectfully requests that the Court grant its Motion for Summary Judgment and dismiss Plaintiffs Complaint in its entirety. DATED this22nd day of November, 2005.

s/ Kristin R. Culbertson J. Mark Ogden J. Greg Coulter Kristin R. Culbertson LITTLER MENDELSON, P.C. Attorneys for Defendant Connecticut General Life Insurance Company

I hereby certify that on November 22,2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-9688 Attorneys for Plaintiff s/ Ruth A. Mare
FimwideMttlCW I M3MI 1007

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EXHIBIT 14

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CHARG ^DISCRIMINATION
'his Torn Is iTfected by the Privacy Act of 1974; Sea Privacy Act Statenant betor? ioBpletlns tills torn.

CHAftQE NUMBER

350A200972
and BEOC

Aht&nt>eD

Arizona Civil Biehts Division
State or localAgency, if any
HAHE (loHlcitc xr., Xs.. Mt*.)

HOME T E L E P H O N E (Jnclude Artt Coif) CITY, STATE AND ZIP CODE

Mrs* Carmen I'. Santa Cruz
STREET ADDRESS

(6231 939^72
DATE OF BIRTH 04/29/1971

Rlni V. Sands Bead. Qlendale. AZ 8*5^01
NAME NUUBER OF EMPLOYEES, UEUDERS

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME fxr*m MM MM ttmt 1*1°*.}
TELEPHONE (JaeJuUe Mr* Code) COUNTY TELEPHONE HU1IBER tffccJurfe Area Code} CITY, STATE AND ZIP CODE COUNTY. DATE DISCRIMINATION TOOK PLACE O HATIOHAL ORIQIH
EABLXEST LATEST

Ciena Healthcare Of Arizona. Inc.
STREET ADDRESS

·Cat D ("501 +1
8R012

CITY, STATE AND ZIP CODE

HAHE C^ena C n -rporatlon
STREET ADDRESS

3P3R H. Central Avenue. Phoenix, AZ

013

CAUit OF DISCRIMINATION OASEO OH (CHecX mpprepmte txaKesJJ O RACE CD COLOR EQ SEX D RELIGION

16*50 Market Street D RETALIATION

PhiladelDhia, Pa 19192 D DISABILITY CD OTHER tspeetiyt 11/19/2001 11/19/2001
O C O N T I N U I N G ACTIDH

DAQE

THE PARTICULARS AHE

I was not hired as a .Customer Service Rep on November 19 * 2 0 . 01 Sandra Qaschej Human Resources Manager, advised ae the company
a strict attendance policy during the first 90 days of Floyment.

(If atiattloail aptee I* neetSeU, ettteh extra sl>eetM}i

I believe I have been discriminated against due to my sex, female and my pregnant condition in violation of Title VII of Civil Rights Act of 1964, as amended. The third Respondent is Connecticut General Life Insurance Company. (This charge is amended to put' correct legal names of Respondent Cigna and to add an additional Respondent named by Cigna.)

EEOC-CGLIC-0016

I want .ttilc charge Tiled with both the EEOC and the State or .NOTARY - (Hhen necessary for State and Local Requirement*) local Agency, .IT any,' I will advise the agencies if I change ny address or telephone number and cooperate fully with then In the I swear or afflno that I have read the above charge and that it is true to the best of ny knowledge. Into nation and belief. ^·^·^·-Ing of ny charge In accordance with their procedures. ^^·Ure under penalty oT perjury that the foregoing Is true SIGNATURE OF COMPLAINANT

Unc toui & iRe*. o/m)

v *' Jt ^^ DaU /~~/ty-C&* Case

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (Month, day and year) :. _ vXj^-Jfv 4**rl. ^?.-*TI . *^> ^C/«<-** j- -ff Z£.-----"' OiarBlno Party (Signature) 2:04-cv-00627-JAT Document 100 Filed 11/22/2005 Page 13 of 17

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?\U= COPY

EXHIBIT 15

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A?.-1

EEOC Intake Questionnaire Attachment .1. What reason did your employer give you for what happened to you? &S .iVM&in/t-r -70 n>W^3- -~//&ir

J^/y/gft/Ev?

2.

Name- others who were treated similarly to you? _ Name " " Sex ' Race ' National Origin

Job Title

3.

Name others who did the same thing you did, but were treated differently? ' Name Sex Race National Origin Job Title

!

)
4. Do you have witnesses to the unfair actions described in EEOC Form 283? If so provide . . their names, addresses and telephone numbers. WhnessName Address Phone Number

/$ <$2? C/0Mtwt z£~^Signature: I declare under penalty of perjury that the foregoing is true and correct.

/^*^<3
Date

EEOC-CGLlC-0029
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EXHIBIT 16

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Wooi

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