Free Memorandum - District Court of Arizona - Arizona

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Steven G. Biddle; AZ Bar No. 012636 [email protected] Rebecca M. Burnside; AZ Bar No. 020393 [email protected] LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 Attorneys for Defendants Andrew and Laura Staubitz UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Bobbie M. Golden and Daniel Golden, husband and wife; and Shelley M. Hebets, Plaintiffs, v. Arizona Department of Administration; Capitol Police Department; Wayne Corcoran and Patricia Corcoran, husband and wife; and Andrew Staubitz and Laura Staubitz, husband and wife, Defendants. Case No.: CIV 04 0320 PHX PGR DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Filed under the Seal of the Protective Order.

Defendants Andrew and Laura Staubitz ("Defendants"), by and through their undersigned counsel, hereby submit the following Memorandum of Points and Authorities in Support of their Motion for Summary Judgment filed contemporaneously herewith. I. FACTUAL BACKGROUND A. The Parties and Plaintiffs' Claims.

Plaintiff Bobbie Golden ("Golden") started working for the Capitol Police Department ("CPD") as an Officer on August 28, 1995. SOF 1. Plaintiff Shelley Hebets ("Hebets") began her employment with CPD as a Police Assistant on October 12, 2000. SOF 2. Defendant Andrew Staubitz ("Staubitz") began working for CPD as a Lieutenant on

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

October 2, 2000. SOF 3. On or about February 25, 2002, Staubitz became Chief of CPD. SOF 4. Defendant Wayne Corcoran ("Corcoran") began his employment as a Sergeant with CPD in 1997. SOF 5. It is important to note that Corcoran was not Plaintiffs' superior officer. At no time did he have supervisory authority over Plaintiffs, or the ability to terminate them or dictate their assignments. SOF 6. The Plaintiffs' First Amended Complaint makes claims for national origin discrimination, retaliation and sexual harassment against the Arizona Department of Administration ("ADOA") and CPD. They also make claims against Staubitz and Corcoran for violations of 42 U.S.C. §§ 1981 and 1983 based on Corcoran's alleged sexual harassment of them and Staubitz's alleged inaction relating to that alleged sexual harassment and his alleged different treatment of them based on their national origin. SOF 7. B. Plaintiffs' Factual Allegations.

It should be noted at the outset that Plaintiffs admit that except for the few belowdescribed actions by Corcoran in summer 2002, in the five years they worked with Corcoran at CPD, they saw him do nothing inappropriate. SOF 8. They also admit he did nothing inappropriate to either of them. In fact, Corcoran was a close friend of Golden's father he considered Hebets "like a daughter." SOF 9. 1. The Ballistic Vest Incident.

In 2002, the CPD sought replacement Kevlar ballistic vests for its officers. SOF 10. To order ballistic vests, all officers had to be fitted for the custom vests. SOF 11. Kevlar does not lend itself to imprecise measurements because the bullet-proof material does not bend and thus must be tailored for each officer based on specific measurements around the chest and waist, from collarbone to belt, across the shoulders, and from armpit to belt. SOF 12. Sometime in the summer of 2002, the vendor repeatedly called Corcoran, who was assisting with the measurements, to ask about the few officers who had not submitted measurements, including Plaintiffs. SOF 13. Over the course of his 25-year career, Corcoran has been trained in taking these measurements and was one of only two persons at the CPD with training in this area. SOF
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

14.

Corcoran had performed these duties for his previous employer, Phoenix Police

Department, on many occasions. SOF 15. In July 2002, Corcoran informed Staubitz of the repeated telephone calls by the vendor and the need to secure the final measurements. SOF 16. Staubitz instructed him to take the measurements, but not of the female officers because he felt "they would be more comfortable with a female measuring." SOF 17. Corcoran found Golden in the briefing room. SOF 18. The briefing room is

surrounded by several officers' offices, including Corcoran's. SOF 19. Corcoran measured Golden, but only after she consented to it. SOF 20. Golden was already in a tee shirt with a bra, which is the attire required for the fitting of a vest. While on duty, the vest is worn over a female officer's tee shirt and bra and under her uniform shirt. SOF 21. According to Golden, the truth of which will be assumed solely for the purposes of this Motion, Corcoran asked her "if he needed to go down to the cafeteria and gab a 32 ounce, 20 ounce, or 16 ounce cup to determine her breast size for the fitting of the vest."1 SOF 22. Golden claims she was offended by this comment and she "immediately reported this comment to Sergeant Brian Neus and Captain Jay Swart who in turn reported it to Chief Staubitz."2 SOF 22. Otherwise, when measuring her, Golden admits that Corcoran was professional, standing behind her not touching her inappropriately. SOF 23. Shortly after Golden was measured, Hebets arrived for work. SOF 24. Corcoran told Hebets he needed to measure her for a vest, and they proceeded into his office. SOF 25. She removed her uniform shirt and the ballistic vest she was wearing so he could measure her. SOF 26. While she was wearing her tee shirt, Corcoran measured her according to the required procedure. SOF 27. Although both Plaintiffs admit the measurements were done in accordance with the manufacturer's specifications and they were not touched by Corcoran on the breast or otherwise inappropriately, they claim the measurements were "done in violation
It is disputed whether it was Corcoran or Sergeant Brian Neus who made the comment about the cup size, but solely for the purposes of this Motion, it will be assumed that Plaintiffs' version is accurate.
2 1

It is disputed whether Neus was present at the time of Golden's measurement, but solely for the purposes of this Motion, it will be assumed that Plaintiffs' version is accurate. However, this incident was not reported to Staubitz, and Plaintiffs have no evidence to dispute this.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

of an order given to Sgt. Corcoran by Chief Staubitz." SOF 28. Hebets claims she "reported the incident to Sgt. James Warner and within a day or two after that it was reported to Sgt. Brian Neus." SOF 29. Hebets also claims she believes Staubitz was made aware of

Corcoran's actions but, like Golden, they have no evidence to refute Staubitz's testimony that he was not told until months later. 2. The Street Survival Training.

On or around August 21, 2002, Hebets attended a Street Survival Training in Scottsdale, Arizona, that Corcoran also attended. SOF 30. All officers in attendance other than Hebets were wearing business casual attire. SOF 31. When Hebets arrived, she was dressed in gray, baggy, draw-stringed gym shorts, which she wore on or below her hips. SOF 32. She also was wearing a short-sleeve tee-shirt, which she wore untucked. SOF 33. She had a hooded jacket with a zipper front, which was unzipped. SOF 34. Before the class began, Corcoran asked her something like, "Is this the uniform of the day?" or "Oh, is it casual wear today?" SOF 35. Corcoran touched the shorts while making this comment. Hebets claims he put his finger in the cuff of the side of her shorts and he pulled the shorts up her thigh.3 SOF 36. Hebets had underwear on, that she admits was not exposed. SOF 37. She also does not claim the gesture exposed her buttocks or genitalia. SOF 38. Hebets claims later that same day she "reported this to Sgt. Brian Neus and Corporal Eric Reed." SOF 39. Although she claims she told Neus she could not believe it happened and that she was embarrassed, she did not ask to initiate a complaint. SOF 40. The next day, she claims she told Sergeant James Warner of the incident, but again did not request an investigation or to file a complaint. SOF 41. At that time, Hebets was not even scheduled to work the same shift as Corcoran, whose shift ended at 3:00 p.m., the same time Hebets' shift began. SOF 42.
3

It is disputed whether Corcoran pulled the shorts up at all or rather just touched them as a comment of her unprofessional attire, but solely for the purposes of this Motion, it will be assumed that Plaintiffs' version is accurate.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

A few weeks later, on September 9, 2002, Hebets discussed the incident with Captain Jay Swart.4 SOF 43. Swart asked her questions relating to the incident, such as who may have been a witness. SOF 44. Swart then reported the allegations to Staubitz, who directed Swart and Neus to get a statement from Hebets and investigate. Hebets prepared a

memorandum dated September 9, 2002, at Neus' request, and Neus told her it was an instruction from Staubitz after Staubitz was apprised of the incident. SOF 45. Plaintiffs do not contend that Staubitz had knowledge of Hebets' complaint or of the incident until Neus and Swart reported it to him on September 9. Plaintiffs also admit they never reported this or any other incident of alleged harassment to Staubitz directly. SOF 46. In fact, Staubitz was not aware of Hebets' complaint or that Corcoran touched her shorts until he was told on September 9, 2002. SOF 47. At this time, Golden was out on maternity leave from the first week of September 2002 until July 2003, and Staubitz had no notice of her complaints at that time. SOF 48. These two incidents (the vest fitting and shorts touching) are the only incidents that Plaintiffs contend created a hostile work environment based on sexual harassment. SOF 49. Indeed, they admit Corcoran did not hurt them physically when he measured them or when he allegedly pulled on Hebets' shorts. SOF 50. C. The Investigation of These Incidents.

Immediately after Swart and Neus reported the incidents to Staubitz, Staubitz instructed Swart to investigate them. SOF 51. It is certainly understandable for the Chief of Police to delegate an internal personnel investigation into allegations of inappropriate conduct to his subordinate management personnel, themselves well-trained police officers. SOF 52. In this case, Staubitz delegated this responsibility to Swart, who in turn assigned compiling witness statements to Neus.5 SOF 53.
4

At this point in time, Captain Swart was the second in command, and the only Captain, under Chief Staubitz.

5

Plaintiffs contend "Because no action was taken to discipline Corcoran, on September 12, 2002, Officer Brian Neus sent Chief Staubitz a memorandum detailing the improper sexual conduct by Corcoran" and Plaintiffs attached a copy of that purported September 12 memorandum to the Complaint. SOF 54. Defendants dispute the authentication and foundation of this memorandum, which was never given to Staubitz or found in any Capitol Police file or on any Capitol Police computer. SOF 55. Staubitz received a

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

On September 10, 2002, Neus gave Swart and Staubitz a memorandum itemizing some of the allegations listed above. SOF 56. Swart, who had been a CPD employee for several years, informed Staubitz that is was actually the responsibility of the Arizona Department of Administration ("ADOA") to investigate allegations of sexual harassment. SOF 57. Based on that advice, Staubitz immediately contacted ADOA Human Resources representative Ron Lloyd, and the investigation was turned over to the ADOA for the investigation. SOF 58. On September 12, 2002, Corcoran was placed on administrative leave at Staubitz's request to get Corcoran away from the workplace, and Lloyd informed Corcoran he was being investigated and that Lloyd was heading the investigation. SOF 59. Staubitz completely cooperated with the ADOA and provided all of the statements and other documents collected by Neus. Staubitz also prepared a memorandum for Lloyd of his firsthand knowledge and opinions of the situation on September 16, 2002. SOF 60. Staubitz only learned that Corcoran measured the female officers shortly before he wrote the September 16 memorandum, and Staubitz told Lloyd that he had directed Corcoran not to measure the female officers. SOF 61. On September 17, 2002, after he was placed on administrative leave, Corcoran tendered his resignation to be effective September 23, 2002. SOF 62. Thus, Corcoran was removed from the work environment immediately after Staubitz learned of his alleged conduct and he did not return to work there. With the removal of the alleged harasser from the workplace, the ADOA apparently terminated its investigation. Other than as described above, Staubitz was not involved in the ADOA investigation. SOF 63. He did not have any input into the ADOA's procedures in conducting its investigation. SOF 64. He was not asked to participate in the investigation, except that he provided the documents regarding Corcoran's behavior to the ADOA. SOF 65.

memorandum from Neus on September 10, 2002, but it is not the memorandum attached to Plaintiffs' Complaint. A true copy of the authentic memorandum is attached to the Statement of Facts Supporting this Motion. Although Plaintiffs cannot rely on inadmissible evidence to survive summary judgment, which memorandum Staubitz received is inconsequential because both discuss Corcoran's alleged behavior that led to him being placed on administrative leave and resigning a few days thereafter.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

D.

Plaintiffs' Other Allegations to Support Their Claims.

Without explaining how it relates to their sexual harassment claim, Plaintiffs contend that a letter of reference Staubitz wrote at Corcoran's request impacted the terms and conditions of their employment. SOF 66. In fact, as is clear from the letter, Staubitz's letter is neutral, at best, and understandably does not mention the allegations against Corcoran because they were never investigated or confirmed. Plaintiffs also contend "Chief Staubitz permitted Corcoran access to secure areas of Arizona State government Complex, including areas where only active CPD Officers are permitted access." SOF 67. Obviously, the State buildings are public areas, and Staubitz cannot prohibit a citizen from coming into a public area unless certain constitutional protections are respected. SOF 68. In any event, Golden admits she never witnessed Corcoran ever visiting CPD after he resigned. SOF 69. She claims she saw him in a public area in the visitor parking lot on July 22, 2003, while she was on her cellular telephone with her husband. SOF 70. Corcoran apparently wanted to speak with her, but when she failed to get off the telephone and she said she needed to leave, Corcoran left and they never spoke. SOF 71. Golden admits the encounter lasted only "about a minute." SOF 72. Hebets claims she came in contact with Corcoran on two occasions about a month or so after he resigned. SOF 73. On one occasion, she passed him as he was walking out of the CPD building. SOF 74. On the second occasion, when Hebets was in the Governor's Tower, Corcoran

approached her and said hello and they spoke for less than a minute, and she does not recall the substance of the conversation. SOF 75. Staubitz was not aware of any of Corcoran's visits. In fact, after Warren Whitney, ADOA Assistant Director, called and told Staubitz that Corcoran had been seen at CPD, he instructed Staubitz to call Corcoran and tell him not to come back. SOF 76. Pursuant to this directive, which was the first Staubitz learned of Corcoran's presence, Staubitz called Corcoran and informed him that his presence made some people uncomfortable and told him not to come back to CPD. SOF 77. Corcoran explained he had been there to retrieve some

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

of his books, but he agreed not to return. SOF 78. After this phone call, Corcoran did not return to CPD. SOF 79. E. Incidents Directed at Other Officers.

Plaintiffs also claim that actions by Corcoran directed at other officers, out of Plaintiffs' presence, also form the basis for their hostile environment sexual harassment claim. For example, on or about September 10, 2002, during a shot gun qualification, Corcoran approached Officer Traci Woody-Carmen and allegedly said, "this is a man's gun, you got to stroke it like you would a man," and that if she "gripped her baton or held it right, it would expand like a man." SOF 80. Plaintiffs also contend Corcoran commented to Woody-Carmen on another occasion, "If you handle a man like you handle a baton, no wonder why you can't keep a man." SOF 81. Plaintiffs also claim Corcoran said to WoodyCarmen, on yet another occasion when she picked up a remote control, "you have to push the right buttons to make it respond like you do a woman." SOF 82. Plaintiffs contend WoodyCarmen reported this behavior to Neus, although they have produced no admissible evidence to support this contention and there is no evidence it was communicated to Staubitz. SOF 83. Plaintiffs also claim Corcoran asked Police Assistant Jeffrey Miller if the woman whose life he saved "gave him a blow job." SOF 84. This allegedly was said in the presence of Sergeant John Burris and Swart, according to Plaintiffs, although they have not produced any admissible evidence to support this contention. SOF 85. Plaintiffs claim Neus collected this information as part of his September 2002 investigation, but it was not transmitted to Staubitz. However, the information apparently was given to ADOA's Lloyd after he began his investigation, unbeknownst to Staubitz. SOF 86. F. Plaintiffs' Retaliation Claim.

Plaintiffs claim Golden was retaliated against when she was "subjected to repeated jokes and comments regarding her breasts and was alienated by members of the Department loyal to Chief Staubitz." SOF 87. However, despite being asked in depositions and written discovery requests, Plaintiffs have produced no evidence of any "retaliatory" jokes,
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

alienation, or other support for their retaliation claims and, in any event, do not show how this even relates to Staubitz. Indeed, Golden admitted in her deposition that the jokes were made by Sergeant James Warner and she was not offended and she never reported this behavior to Staubitz. SOF 88. Plaintiffs also claim that on February 25, 2003, Hebets was "subjected to retaliation" when "Corporal Miller told Sergeant Harkness in a loud and rude manner" that Hebets `is just really stuck up.'" SOF 89. Although she claims she was "embarrassed and offended," when her supervisor told her to write a statement regarding the incident, she did not write it up for over three weeks, finally delivering a statement on March 18, 2003. SOF 90.

Significantly, Hebets admits she has no evidence to show that Staubitz knew about or had anything to do with this incident. SOF 91. Plaintiffs also claim a "meritless investigation" was opened against Hebets which failed to result in any disciplinary action. SOF 92. Someone broke into the Department of Education building, and CPD Officer Robert Gerome responded to the call and Hebets was second on the scene. Gerome located and detained the suspect and he asked Hebets, who was the officer in charge of the second shift, to take over the investigation him because he was going off duty at the time. Gerome briefed her on all of the information he had, but instead of proceeding as if the case was a burglary, she wrote the suspect up for misdemeanor trespassing and released him without even securing a photo identification or taking fingerprints. SOF 93. After this mistake was noticed, Hebets claimed she did not know how to take fingerprints, even though she had attended the Police Academy. Staubitz was mainly concerned that one of his officers lacked basic officer training in fingerprinting and crime scene investigation, so he treated it as a training issue rather than a disciplinary one. SOF 94. Indeed, Hebets did not receive any disciplinary action stemming from her failure to detain the suspect and take fingerprints. Instead, she was sent to a basic crime scene investigation class and taught fingerprinting. SOF 95. Additionally, Hebets mentioned in her deposition that an "investigation" was "improperly conducted" in May 2003 based on her pursuit of a hit-and-run suspect that
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

extended outside CPD's jurisdiction. SOF 96. Interestingly, Plaintiffs' Amended Complaint does not allege the "investigation" of the pursuit was somehow improper or unwarranted, probably because they know that, pursuant to its policies, CPD routinely reviews dispatch tapes relating to all pursuits that extend outside of CPD's jurisdiction to ensure there are no policy violations. SOF 97. Indeed, Hebets admits she did not receive any discipline based on the pursuit and "nothing bad" happened to her because of the "investigation." SOF 98. Obviously, this is not evidence of discrimination or retaliation. Later, in May 2003, Hebets requested that ADOA do an internal investigation of Staubitz regarding her claims of retaliation. SOF 99. As part of the internal investigation, in response to Hebets' request, Plaintiffs and others were interviewed by ADOA Risk Management in July 2003. Hebets' allegations were found to be without merit. SOF 100. Additionally, Plaintiffs claim that Hebets was "denied an opportunity to test for [a] promotion to Sergeant" because she was subpoenaed to testify at Neus's termination hearing in May 2004. Hebets claims she "spoke to Wendell Grasee (then CPD Chief) about this matter" and she "was not allowed to reschedule her test." SOF 101. However, even if true, Plaintiffs do not contend that Staubitz had anything to do with scheduling or rescheduling her test, or that he subpoenaed her, which he did not. Hebets' own statement implicates Grassee, and not Staubitz so, even if true, the Court should disregarded this allegation in considering the claims against Staubitz. Plaintiffs also claim retaliation based on Golden being scheduled to work in the Industrial Commission building on July 28, 2003. SOF 102. Plaintiffs claim building duty is less favorable than patrol duty. SOF 103. Golden claims she complained at the time that she felt the assignment was based on her national origin and because she supported Officer Hebets regarding her handling of the burglary. SOF 104. Again, Plaintiffs have no evidence to support this claim. Indeed, Golden was working part-time at that time, and the hours she was assigned to building duty were not different than other officers. Plaintiffs also allege Golden was retaliated against in or around September 2003 when her supervisor, Sergeant Hollis Corey, changed her assignment. SOF 105. However, it was
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Corey's decision how she would be scheduled and utilized, and none of this was done at the direction of Staubitz. SOF 106. Corey wanted to ensure all officers did at least one building shift to address other officers' complaints that Golden was getting preferential treatment by not having to do a building shift. SOF 107. After Corey explained his rationale, Staubitz agreed that the building assignments seemed fair. SOF 108. Nonetheless, after Golden complained about the assignment change, Staubitz directed Corey to modify the schedule and she was not scheduled for a building post more than a couple of times total. SOF 109. Corey, not Staubitz, changed her assignment and Golden admits she has no proof that Staubitz was motivated to retaliate against her. SOF 110. In July 2003, Staubitz's assignment as Chief was reviewed. His assignment was changed and he became a Captain. SOF 111. Wendell Grasee, a DPS official, then took over as Chief of the CPD. Subsequently, both Plaintiffs voluntarily resigned and no longer are employed by CPD. II. LEGAL ARGUMENT A. Summary Judgment Standard.

One of the main purposes of a summary judgment motion is to isolate and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To overcome a motion for summary judgment, a plaintiff must demonstrate there is a genuine issue of material fact for each element of each claim. Id. at 327; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Supreme Court has stated the party opposing summary judgment cannot simply rest on its pleadings, but must provide sufficient evidence that would allow a reasonable trier of fact to return a verdict for the non-moving party. Anderson, 477 U.S. at 247. Moreover, any factual disputes pointed out by the non-moving party must concern material issues and be supported by admissible evidence. Id. at 248. B. Defendant Staubitz is Entitled to Qualified Immunity.

Plaintiffs claim Staubitz violated 42 U.S.C. §§ 1981 and 1983. In order to state a claims under §§ 1981 and 1983, Plaintiffs must allege a violation of rights secured by the Constitution or laws of the United States, and that such violation was committed by a person
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

acting under color of state law. See 42 U.S.C. § 1983. Neither states nor state officials acting in their official capacities are "persons" within the meaning of §§ 1981 and 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 70-71 (1989). Official-capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690 n.55 (1978). However, personal-capacity suits "seek to impose personal liability upon a government official for actions he takes under color of state law." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (emphasis added). Officials are granted "qualified immunity" from such claims under certain circumstances. The qualified immunity test "allows for mistaken judgments and protects `all but the plainly incompetent or those who knowingly violate the law.'" Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1098 (9th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). The district court must make an objective inquiry considering "whether a reasonable official could have believed his conduct was lawful in light of clearly established law and the information the officials possessed." Id. at 1101. It is undisputed that Staubitz, at all times during Plaintiffs' tenures, acted both within the course and scope of his employment and within his official capacity. Thus, the §§ 1981 and 1983 claims should be dismissed against him. It also is undisputed that Staubitz ordered Swart and Neus to investigate Plaintiffs claims as soon as he was informed of them. Hebets wrote a memorandum on September 9, 2002, detailing her allegations to Neus. SOF 112. On September 10, 2002, Neus delivered to Staubitz a cursory detail of Plaintiffs' complaints. When Staubitz informed Neus and Swart that the investigation must be more detailed, they informed him that State policy requires that the ADOA should conduct all personnel investigations involving allegations of harassment. Immediately thereafter, Staubitz called Ron Lloyd at the ADOA and the

investigation was turned over to the ADOA. Thus, Plaintiffs are completely without basis to claim their allegations were not investigated and that Staubitz refused to initiate an investigation. Plaintiffs also admit Staubitz never said or did anything inappropriate or
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offensive to them or any other CPD female employee. SOF 113. In reality, all of Staubitz's actions were reasonable and in furtherance of CPD's interests. Thus, there is no basis for imposing individual liability and Staubitz enjoys qualified immunity from Plaintiffs' claims. C. Plaintiffs Pled Claims under 42 U.S.C. §§1981 and 1983 to Avoid Title VII's Prohibition on Individual Liability.

In Plaintiffs' First Amended Complaint, they assert Staubitz, in his role as Chief of Police of CPD, is individually liable despite their admission that he at all times acted within the course and scope of his authority. In any event, and contrary to Plaintiffs' allegations, no individual liability exists under Title VII. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1994). The term "employer" in Title VII is defined to include an agent of the employer only to incorporate the doctrine of respondeat superior and not to create individual liability. See 42 U.S.C. § 2000e(b); Miller, 991 F.2d at 587. Therefore, Plaintiffs are seeking §§ 1981 and 1983 liability as a substitute for Title VII's prohibition on individual liability. D. Even if Individual Liability Could Exist, Plaintiffs Cannot Establish Liability under Section 1983 Against Staubitz. 1. Plaintiffs Cannot Establish a Hostile Work Environment Harassment Claim.

In order to prove a § 1983 claim, Plaintiffs must first prove a Title VII violation. Under Title VII, discrimination against "an individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's . . . sex" is an unlawful employment practice. 42 U.S.C. § 2000e-2(a)(1). In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), the Supreme Court stated that sexual harassment is a form of sex discrimination. The Court continued, "[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Id. Thus, in order to prove their § 1983 claim, Plaintiffs must first prove sexual harassment.

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A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

2.

The Actions Described Were Not Based on Sex.

Title VII does not prohibit all harassment in the workplace; rather, it is directed only at discrimination because of race, gender, religion, age, disability, or national origin. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The instant case could be the result of the Plaintiffs' own misunderstanding of the law. For example, in her deposition, Hebets said she understands "sexual harassment" to mean "unwanted comments and unwanted sexual advances... if someone takes offense to a comment or a joke that somebody says, if you take offense to it, then it's constituted as ­ it could be construed as sexual harassment... Somebody else may not be offended by it, but if you take offense to it, then it would be." SOF 114. Obviously, this is an overly expansive definition of sexual harassment. At the Street Survival Training, when Corcoran touched Hebets' shorts,

Corcoran only commented on her unprofessional attire because she was dressed in sweat shorts, a tee shirt, and a sweat jacket, even though it was a work function. Other officers dressed professionally during the seminar. SOF 115. Clearly, the conduct Corcoran

exhibited at the Street Survival Training, even as alleged, is not based on sex. Similarly, Corcoran's actions during the ballistic vest measurement were not based on sex. A trained professional measuring a female for a ballistic vest is not an inherently sexual activity. The Plaintiffs were clothed, and both admitted Corcoran did not touch them

inappropriately during the fitting. Even if he did make the "cup size" comment, it was isolated and Golden said it did not offend her. Plaintiffs seem to imply just because

Corcoran is a man, his measuring the Plaintiffs was somehow violative of Title VII. A man measuring females for a vest professionally and in accordance with manufacturer's specifications does not constitute conduct based on sex. Indeed, neither Plaintiff contends the measurements deviated from the manufacturer's requirements. Therefore, Corcoran's actions were not based on sex. 3. Plaintiff Fails to Establish the Conduct was Severe and Pervasive.

Plaintiffs' allegations, even if accepted as true, fail to rise to the level of severe or pervasive harassment cognizable under Title VII. Various courts have held that conduct
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more egregious than that alleged by Plaintiffs is insufficient, as a matter of law, to support a hostile work environment claim. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) (single incident in which fellow employee touched plaintiff's breast under her sweater, while offensive, did not rise to the level of harassment for which Title VII offers a remedy); Scotts v. Sears, Roebuck & Co., 798 F.2d 210, 211-14 (7th Cir. 1986) (plaintiff's allegations insufficiently severe or pervasive where she was subjected to propositions, lewd comments, and a slap on the buttocks); Mendoza v. Borden, 195 F.3d 1238 (11th Cir. 1999) (insufficient even though supervisor told the employee "I'm getting fired up," rubbed his hip against the employee's hip while touching her shoulder and smiling, twice made sniffing sounds while looking at the employee's groin area and constantly followed and stared at the employee in an obvious fashion); Dwyer v. Smith, 867 F.2d 184, 187-88 (4th Cir. 1989) (employee who found pornographic material in her mailbox, was accused of having sex with other workers, and was subjected to sexually explicit conversations failed to establish severe or pervasive conduct). Hebets acknowledges that during the first ten months of her employment, she did not witness Corcoran make any inappropriate, sexually harassing comments to her or to any other female officer. SOF 116. In fact, Hebets worked at CPD from October 2000 until the summer of 2002 and she was not subjected to any sexual harassment or inappropriate comments by Corcoran for those eighteen-plus months. SOF 117. She admits she did not observe any inappropriate conduct by Corcoran directed towards any other females after that either. SOF 118. Similarly, Golden admits Corcoran did not do anything inappropriate directed towards her from his arrival in 1997 through December 2001. SOF 119. She also admits she did not observe Corcoran do anything inappropriate towards any other female from 1997 through the end of his employment (September 2002). SOF 120. As outlined above, Golden has only identified one incident to support her sexual harassment claim: being measured by Corcoran in accordance with manufacturer

specifications for a ballistic vest. Based on her own comments, it is questionable whether Golden was even subjectively offended by the contact. Immediately after Corcoran

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A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

measured Golden for a vest, Hebets arrived for her shift and found Corcoran and Golden, among others, in the briefing room. SOF 121. Hebets was told she needed to be measured. SOF 122. According to Hebets, Golden said jokingly, "I don't want to do it." SOF 123. Golden also said something to Hebets like, "I was supposed to measure you but I don't want to do it" and she was laughing about it and walked away. SOF 124. Similarly, even if Plaintiffs' allegations are taken as true, Hebets mentions the shorts incident and her vest measurement as the only offensive conduct by Corcoran towards her. Clearly, even if Plaintiffs' allegations about Corcoran are taken as true, his actions were not offensive, severe or pervasive as required to support a sexual harassment claim. 4. Plaintiffs' Sexual Harassment Claims Also Fail Under the Faragher/Ellerth Analysis.

The Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), ruled that an employer may avoid liability for harassment or discrimination under certain circumstances. Thus, if the employer can show: (1) it used reasonable care to prevent and correct any harassment (such as by disseminating a sexual harassment/discrimination policy containing a complaint procedure); and (2) the employee unreasonably failed to make a complaint under the policy or to avoid harm otherwise, the employer cannot be liable for sexual harassment. CPD maintains a policy that prohibits sexual harassment. SOF 125. The procedure for an employee to report incidents of harassment is to notify their immediate supervisor in writing. SOF 126. Plaintiffs acknowledge they received the policy and they had the

responsibility as an employee of CPD to follow the policy. SOF 127. Plaintiffs claim although "Chief Staubitz requested specific information relating to Plaintiff's claim of sexual harassment," "Plaintiff was never interviewed concerning her complaint." SOF 128.

However, Plaintiffs do admit that another officer, Cheryl Judd, complained of sexual harassment against a then current employee (James Warner). Plaintiffs and others were interviewed during the course of that investigation, and Plaintiffs admit they were asked about their own complaints at that time. SOF 129. Indeed, just as with Plaintiffs'

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A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

"complaints," Judd's complaint was investigated by the ADOA Human Resources Department. SOF 130. As mentioned, Staubitz referred the complaints involving Corcoran to the ADOA for investigation per State policy. The alleged harasser, Corcoran, was immediately placed on administrative leave and resigned only a few days later, presumably before the ADOA investigation even began. What "actions" Staubitz was supposed to take against a person who was gone from the workplace and no longer even an employee under his supervision is completely unclear. Staubitz obtained Hebets' statement and assigned Swart to investigate the matter. A few days later, Swart and Neus informed Staubitz of the policy mandating that the ADOA investigate all allegations of harassment. That very day, Staubitz referred the matter to the ADOA and it was then in ADOA's hands. It was not Staubitz who "chose not to do an investigation" as it was the ADOA's investigation. Further, no investigation was necessary because the alleged harasser immediately was removed from Plaintiffs' work environment and resigned, which by definition resolves the hostile work environment when the subject of the alleged "hostility" is no longer present. But that was not Staubitz's decision. The ADOA had complete control of the investigation. Whether to suspend, continue, or cease the investigation was the ADOA's sole decision, not his. Although Plaintiffs claim Staubitz did not speak to them regarding their complaints, they fail to cite any policy, practice, procedure or law mandating that Staubitz discuss their allegations with them.6 Indeed, Staubitz was told by his superiors at the ADOA that the ADOA would handle the investigation. Moreover, Plaintiffs cannot show how the lack of any conversation with Staubitz constituted a "sanction" of Corcoran's actions, particularly because Corcoran was removed from the workplace and placed on leave. Because of his resignation, he was never reintroduced to the environment.

Although Staubitz disputes this fact because he did have conversations with Plaintiffs about some of their complaints, solely for the purposes of this Motion, it will be assumed that Plaintiffs' rendition of the facts are true.

6

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Although Hebets claims she told Swart about the vest incident, she admits she did not tell him she wanted to file a complaint or that she considered the incident to be sexual harassment. SOF 131. She also did not request an investigation. SOF 132. She even testified in her deposition that she did not expect Swart to do anything about it. SOF 133. She also admits she never discussed the incident with Staubitz. SOF 134. Golden does not even contend she lodged a complaint at any time regarding any the allegations in the Amended Complaint relating to her. SOF 135. She cursorily states, "numerous comments relating to past experiences of Sgt. Corcoran's inappropriate commentary and actions by employees inside and outside of CPD went uninvestigated," but she never connects the alleged inaction to Staubitz. SOF 136. In her deposition, she claimed she spoke to Swart and Neus about the vest measurement and was "upset about it" because she was pregnant and she felt the measurements would be inaccurate, and not because she felt Corcoran harassed her. SOF 137. In addition to being contrary to her statements to the EEOC, her allegations in the lawsuit also are contrary to an email she wrote to Neus, in response to his September 2002 request for information following Hebets' complaint, while Golden was on leave. SOF 138. In that email, she stated "no inappropriate contact was occurring [and] I did not object to the measurements being taken." SOF 139. In fact, she explicitly stated, "I did not take offense to Sergeant Corcoran's comment [regarding going to the cafeteria to retrieve cups to measure my cup size] as such comments have been made several times before in a joking manner." (underscore added) SOF 140. Further, Plaintiffs repeatedly usurped Staubitz's authority while he was Chief. Although they seek to hold Staubitz liable, nowhere in this lawsuit do Plaintiffs ever contend they went to Staubitz at all and in fact admit that they never took their complaints to him. SOF 141. In fact, Plaintiffs generally went around him and over his head, and now seek to hold Staubitz liable for his alleged inaction. Hebets even admits speaking to the following officials about the Plaintiffs' claims, whose authority far exceed Staubitz's: Warren

Whitney, the Assistant Director of the ADOA on "numerous occasions;" Betsy Bayless, Director of the ADOA; John Vella, an ADOA investigator; Diane Saunders, the Governor's
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Director of Cabinet Affairs and Special Projects; Sherri Van Horsen, Deputy Director for Constituent Services; and, through others, to Dennis Burke, Governor Napolitano's Chief of Staff of Policy, and Allen Stevens, Governor Napolitano's Chief of Staff of Operations. SOF 142. Thus, Plaintiffs' claims should be barred under the Faragher/Ellerth analysis. E. Plaintiffs Cannot Establish a Retaliation Claim under 42 U.S.C. §1983 1. Plaintiffs' Retaliation Claim Must Fail.

Although Arizona permits notice pleading, Plaintiffs' Complaint and Amended Complaint fail to plead a cause of action against Staubitz for retaliation. Instead, Plaintiffs plead retaliation solely against Defendants ADOA and CPD. This likely is because

retaliation claims are made under Title VII, and there is no individual liability under Title VII. As a result, a retaliation claim should not be entertained against Staubitz. 2. Even if Plaintiffs Did Allege Retaliation, the Claim Must Fail.

Plaintiffs' retaliation claim has no basis. The McDonnell Douglas burden-shifting analysis is appropriate to a retaliation claim under Title VII. Thus, Plaintiffs must establish a prima facie case of retaliation by showing: (1) they engaged in statutorily protected expression; (2) they suffered an adverse employment action; and (3) there is a causal link between their protected expression and the adverse employment action. See E.E.O.C. v. Dinuba Med. Clinic, 222 F.3d 580, 586 (9th Cir. 2000). 3. Plaintiffs Suffered No Adverse Employment Action.

Only nontrivial, final employment actions "materially affect[ing] compensation, terms, conditions, or privileges" of employment are sufficient to constitute adverse employment actions. See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000); see also Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000); Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999) (plaintiff did not suffer final or lasting adverse employment action where tenure decision was subject to grievance procedure), cert. denied, 529 U.S. 1019 (2000). Among those employment decisions that can constitute an adverse employment action are termination, dissemination of a negative employment
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reference, issuance of an undeserved negative performance evaluation, and refusal of consideration for a promotion. Brooks at 928. Nevertheless, "not everything that makes an employee unhappy is an actionable adverse action." Stutler v. Ill. Dep't of Corrs., 263 F.3d 698, 703 (7th Cir. 2001). To be actionable, there must be a "significant change in

employment status, such as hiring, firing, failing to promote, reassignment with significantly differing job responsibilities, or a decision causing a significant change in benefits." Id. The Ninth Circuit has held that such actions as declining to hold a job open for an employee, "badmouthing" an employee, and ostracism in the workplace are not adverse employment actions sufficient for Title VII purposes. Brooks at 929. a. Hebets Suffered no Adverse Employment Action.

Courts have held that, as a matter of law, verbal admonishments are not adverse employment actions. See Sanchez v. Denver Pub. Schs., 164 F.3d 527, 522 (10th Cir. 1998) (oral reprimands do not constitute adverse employment actions absent evidence that they had some impact on the employee's employment status); Childers v. Slater, 44 F. Supp. 2d 8, 20 (D.D.C. 1998), vacated in part on other grounds 197 F.R.D. 185 (D.D.C. 2000) (a reprimand that amounts to a mere scolding without any subsequent discipline is not an adverse employment action); Zbeckwith v. Career Blazer's Learning Ctr. of Wash., D.C., 196 F. Supp. 1035 (D.D.C. 1998) (mere criticism and warnings concerning alleged misconduct do not constitute adverse employment actions). Hebets alleges that while still working at CPD, she received a letter of concern for "discussing an investigation that she had been previously told not to discuss" (the "Warner Investigation"). SOF 143. She claims Lt. John Harkness, and not Staubitz, threatened her with more severe discipline if she attempted to grieve the letter of concern. SOF 144. Hebets claims Officer Cheryl Judd also spoke about the Warner Investigation and was not disciplined at all. However, Hebets does not establish how this is connected to her complaint of sexual harassment. In any event, Plaintiffs' allegations are not true because Judd was not similarly situated because her actions did not compromise the investigation as Hebets did

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when she discussed the questions she was asked in the interview with persons not yet interviewed. Judd merely told someone she had been interviewed. SOF 145. Regardless, Hebets admits she violated a direct order not to discuss the investigation. SOF 146. Her complaints of sexual harassment and her national origin do not give her license to break Department rules, ignore a direct order, or compromise the integrity of an internal investigation. Ironically, the investigation was into allegations that Warner had sexual harassed Judd. Plaintiff's discussion of the substance of her interview with other potential witnesses jeopardized the investigation. Nonetheless, she merely received a "letter of concern," and was not denied promotional opportunities, terminated or not denied any raises as a result of receiving this letter and Judd also received a letter of concern. SOF 147. With regard to the investigation into the arrest for the burglary in May 2003, Hebets' sole complaint regarding the incident is that she had to write a memorandum detailing the incident. SOF 148. She received no disciplinary action as a result of this investigation, and was merely sent for additional training. SOF 149. She did not even receive a letter of concern, even though her lack of knowledge of fingerprinting and basic crime scene investigation was concerning. SOF 150. She admits she suffered no adverse employment action as a result of this investigation, even though Staubitz said he was concerned because she lacked basic officer training. SOF 151. Hebets also complains that she was investigated for failing to detect drugs left by a suspect in the back seat of her patrol car. SOF 152. At the time, Staubitz instructed Hebets' supervisor (Neus) to speak with Hebets and document the incident but, despite this instruction, Neus only spoke to her about it, without documenting the incident or the discussion, unbeknownst to Staubitz. Eight months later, when drugs were found in Officer Clay Jeppson's patrol car, Staubitz wanted to make sure Jeppson and Hebets were treated consistently, so he asked Neus what he had done, and Neus responded that he had just spoken to Hebets but did not document anything. Staubitz told Neus these incidents needed to be documented, but neither officer received any disciplinary action. Indeed, Hebets admits she received no disciplinary action for this, either at the time or eight months later
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when Staubitz inquired about it again. SOF 153. Thus, because Hebets suffered no adverse employment action, her retaliation claim must fail. Hebets also claims after her voluntary resignation, "CPD still retaliated further by notifying AZ POST7 that she had violated some AZ POST rule," but she admits this was "a clerical error on the part of CPD" and that "no paperwork" was submitted to indicate a rule violation. SOF 154. Hebets does not have any evidence that Staubitz had anything to do with the AZ POST clerical error and she has produced no evidence supporting such an allegation (because there is none). The clerical error was eventually corrected, and such an administrative error does not constitute an adverse employment action because it has no effect on the individual. b. Golden Also Suffered no Adverse Employment Action.

Golden claims she suffered the following adverse employment actions: an assignment change and a note from her supervisor. SOF 155. She also claims an adverse employment action occurred when Staubitz wrote a reference letter for Corcoran (and subsequently "attempted to get the letter of recommendation... back so as to hide his condoning of Defendant Corcoran's actions.")8 SOF 156. As mentioned, Golden's assignment change in or around September 2003 was done by her supervisor, Sergeant Corey. SOF 157. it was Corey's decision how she would be scheduled and utilized, and none of this was done at the direction of Staubitz. SOF 158. Indeed, after Golden complained about the change, Staubitz directed Corey to change the schedule and Golden was not scheduled for building duty more than a couple of times total. SOF 159. Thus, this cannot be considered an adverse employment action against Golden. Golden also claims an adverse employment action occurred when she received a memorandum in her box from Corey, her supervisor, instructing her to sign the memo book, pursuant to Department policy. SOF 160. However, in her deposition, Golden admitted this
7

AZ POST is the regulatory agency for Arizona law enforcement personnel.

Although Staubitz never attempted to retrieve the letter of reference, solely for the purposes of this Motion, it will be assumed that Plaintiffs' rendition of the facts is true.

8

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memorandum did not constitute discipline. SOF 161. She also admits she did not receive a suspension or a negative performance evaluation, and there were no change in her conditions of employment as a result of receiving this memorandum. SOF 162. She also does not allege Staubitz had anything to do with this and, in fact, he did not. SOF 163. Golden also fails to provide any support for her claim that Stabutiz's reference letter for Corcoran affected her. Therefore, like Hebets, Golden suffered no cognizable adverse employment action. 4. Plaintiffs Cannot Establish a Causal Connection Between Any of Staubitz's Actions, Even if They are Adverse.

In the instant case, no causal link exists between any tangible employment action and Plaintiffs' "complaint" of sexual harassment. Additionally, Plaintiffs' allegations of

retaliation and a hostile work environment are non-sensical. They claim the "hostile work environment and disparaging treatment did not occur until after Plaintiffs reported the sexual harassment." SOF 164. It defies explanation how a hostile work environment does not exist until after an employee complains of a hostile work environment (unless no hostile environment existed, which would mean Plaintiffs were lying when they complained). The only action Plaintiffs allege that was "retaliatory" was Staubitz initiating investigations of Hebets' mistakes in her police work. Certainly, a superior can and should initiate an

investigation into performance deficiencies and/or policy breaches, and a subordinate does not have license to breach an employer's standards and policies just because she complained of sexual harassment. Regardless, Plaintiffs cannot and do not rebut Staubitz's legitimate, non-retaliatory reasons for his decisions. F. Plaintiffs Cannot Establish a Claim Under 42 U.S.C. §1981.

Title VII and Section 1981 are analyzed under the same framework. See Gomez v. Allegheny Health Services, Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995), cert. denied, 518 U.S. 1005 (1996); Momah v. Albert Einstein Medical Center, 978 F. Supp. 621, 628, 633 (E.D. Pa. 1997) ("Generally, the legal elements of a Section 1981 claim are identical to those under Title VII. . . . As a result, analysis under one theory is usually determinative of the

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other claim."). Plaintiffs allege national origin discrimination in violation of 42 U.S.C. §1981. Plaintiffs bear the initial burden of proving a prima facie case of national origin discrimination. Thus, they must show: (1) they are members of a protected class; (2) they were qualified; (3) they suffered an adverse employment action; and (4) similarly situated individuals outside their protected class were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Chuang v. Univ. of Calif. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Absent direct evidence of discrimination, Plaintiffs must establish their prima facie case based upon circumstantial evidence. 1. Plaintiffs Suffered No Adverse Employment Action.

As described above, neither Golden nor Hebets suffered any colorable adverse employment action. Most importantly, there absolutely is no evidence that Staubitz directed any adverse action against either Plaintiff. Therefore, Plaintiffs cannot satisfy this element of their prima facie case of national origin discrimination necessary to hold Staubitz liable under § 1981. 2. Similarly Situated Individuals Outside Plaintiffs' Protected Class Were Not Treated More Favorably.

Plaintiffs claim that unlike Hebets and Golden, Cheryl Judd, a non-Hispanic female, was not given a letter of concern, even though they allege she also discussed the Warner Investigation with a potential witness. In support of this claim, Golden claims she spoke to Judd shortly before Golden voluntarily resigned and asked Judd if she had received any disciplinary action as a result of discussing the Warner Investigation, and Judd replied she had not. SOF 165. In fact, despite Golden's reliance on this inadmissible hearsay, Staubitz, who was a Captain at that time, issued Judd a letter of concern, just as he had to the Plaintiffs for their more significant interference with the Warner Investigation. SOF 166. With regard to Golden's assignments, Golden admits that there were no other corporals on part-time status as she was. SOF 167. Golden contends it was the amount of time she had to spend in a building, percentage-wise, compared to other corporals, that made her treatment disparate. SOF 168. However, Golden's complaint that she was scheduled to

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work 50% of her time in buildings whereas full-time corporals were only scheduled 20%, one of their five shifts, is not a valid comparison because those officers are not similarly situated because they worked full-time. Moreover, after Staubitz found out about Golden's complaint about having building duty, he directed Golden's supervisor to change her assignment to reduce her building duty. G. Plaintiffs' Claim for Punitive Damages Against Staubitz is Without Merit.

A jury may "assess punitive damages in a civil rights action when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Alexander v. Riga, 208 F.3d 419, 430-431 (3d Cir. 2000) citing Smith v. Wade, 461 U.S. 30, 56 (1983). To qualify for a punitive award, the intent standard in Smith requires, at a minimum, recklessness in its subjective form. Kolstad v. American Dental Ass'n, 527 U.S. 526, 536 (1999), citing Smith at 37 (referring to a "subjective consciousness" of a risk of injury or illegality and a "criminal indifference to civil obligations"). To survive summary adjudication of a punitive damages claim, a plaintiff must demonstrate that the defendant acted with "malice" or "reckless indifference." Id. The proper focus is on the actor's motives and state of mind. Id. Plaintiffs claim that Staubitz's actions were "intentional, willful, spiteful, and in reckless disregard to Plaintiffs' rights such that [he] should be assessed punitive damages." In support of this assertion, Plaintiffs point to Staubitz ordering Corcoran not to measure women for ballistic vests and after Corcoran did, Staubitz allegedly "had a duty to discipline Corcoran for insubordination but chose, instead, to ignore the infraction." SOF 169.

Obviously, this vastly misstates the facts. Plaintiffs claim that instead, Staubitz "disciplined" Hebets when she received a "letter of concern." SOF 170. As mentioned, this letter of concern, dated February 26, 2004, came 18 months after Plaintiff complained of Corcoran's inappropriate conduct in September 2002. See Candelaria v. EG&G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994) (inference of retaliatory motive can be drawn only where "close temporal proximity" exists between protected conduct and adverse employment action); Aldridge v. Tougaloo College, 847 F. Supp. 480, 486 (S.D. Miss. 1994)
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(lapse of time of 16 months between plaintiff's grievance and allegedly improper act "suggests a lack of any causal connection"); Causey v. Balog, 929 F. Supp. 900, 912 (D. Md. 1996) (no causal connection inferred where alleged discriminatory act occurred one year after protected conduct). Hebets also claims, without providing any evidentiary support, that her job duties changed while she was on light duty after she allegedly was asked to shred payroll documents that had been obscured by white out. SOF 171. Hebets cites this in support of her plea for punitive damages. However, Hebets does not contend she voiced an objection to her employer or indicated any discomfort with the directive or, most importantly, that Staubitz had any role in this alleged directive. Indeed, Hebets fails to connect this incident with any claims set forth in her lawsuit, namely sexual harassment, retaliation, and/or national origin discrimination, and she does not allege any involvement by Staubitz. Clearly, Plaintiffs have failed to provide any evidence whatsoever to support their punitive damages claim against Staubitz, so i