Free Motion for Summary Judgment - District Court of Arizona - Arizona

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Terry Goddard ATTORNEY GENERAL LISA K. HUDSON MICHAEL M. WALKER Assistant Attorneys General State Bar No. 012597 State Bar No. 20315 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7673 Fax: (602) 542-7644 Attorneys for Defendants ADOA and Capitol Police UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Bobbie M. Golden and Daniel Golden, husband and wife; and Shelley M. Hebets, Plaintiffs, v. State of Arizona ex rel. Arizona Department of Administration and the Capitol Police Department; Wayne Corcoran and Patricia Corcoran, husband and wife; and Andrew Staubitz and Laura Staubitz, husband and wife, Defendants. Defendant State of Arizona, pursuant to Fed.R.Civ.P. Rule 56(c), moves the Court to grant it summary judgment on Plaintiffs' Title VII and Arizona Civil Rights Act ("ACRA") claims against Defendant State.1 I. FACTUAL BACKGROUND (Assigned to the Honorable Paul G. Rosenblatt) Case No: CIV-04-0320-PHX-PGR DEFENDANT STATE OF ARIZONA'S MOTION FOR SUMMARY JUDGMENT

As the ACRA is patterned after Title VII, federal case law interpreting Title VII is persuasive in applying and determining ACRA claims. Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 582, 937 P.2d 1382, 1388 (App. 1996).
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Plaintiffs Bobbie Golden and Shelley Hebets-Hartsuiker ("Hebets") were employed as Arizona State Capitol Police Officers. (SOF 1, 67.) During 2002, both worked with Sergeant ("Sgt.") Wayne Corcoran ("Defendant Corcoran") although he was not their supervisor. (SOF 4, 71, 115.) In 2002, Plaintiffs were supervised by other Capitol Police sergeants, Brian Neus and Jim Warner, both of whom were Plaintiffs' friends. (SOF 32, 38, 39, 42, 68, 74, 79, 80.) A. The Alleged Harassment.

In January 2002, Plaintiff Golden and Defendant Corcoran attended a training seminar. After its conclusion, Defendant Corcoran asked Plaintiff to go to his personal vehicle with him where he gave her a training manual and a gun holster for her ballistics vest. (SOF 5, 6.) Plaintiff Golden alleges that Defendant Corcoran told Plaintiff Golden he got the items for her and kissed her cheek. (SOF 7.) Plaintiff Golden laughed, said thanks and left. (SOF 7.) Plaintiff never reported the incident to anyone. (SOF 8.) In summer 2002, Defendant Corcoran approached Plaintiff Golden and advised her that he needed to measure her for a ballistics vest. (SOF 10, 11.) When the measurement required information about Plaintiff's Golden's breast cup size, Plaintiff Golden alleges Defendant Corcoran said something to the effect that he was not supposed to be measuring her, and wanted to know if he should go to the cafeteria and get a 44, 32 or 20 ounce cup or would she tell him her cup size. (SOF 16.) When asked to provide a written statement about the incident, Plaintiff Golden wrote that "as he was already obtaining the measurements and no inappropriate contact was occurring, I did not object to the measurements being taken" and further told Defendant Staubitz that the incident was "no big deal." (SOF 24, 31.) During this same time period, Defendant Corcoran also measured Plaintiff Hebets for a ballistics vest. Plaintiff Hebets was wearing a sports bra and t-shirt. (SOF 71, 72, 75.) According to Plaintiff Hebets, Defendant Corcoran did not say anything inappropriate
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while measuring her or touch her breasts, but she felt uncomfortable being measured by him because he lifted the measuring tape over her breasts rather than requesting she do it and measured her from the side rather than from the back. (SOF 77, 78.) Neither Plaintiff filed a formal complaint in accordance with Department policy or reported the incident as sexual harassment. (SOF 18, 19, 20, 21, 31, 79, 80, 81.) In late August 2002, Plaintiff Hebets attended a three day training seminar with several other Capitol Police Officers. (SOF 82.) On the third day, Plaintiff wore a pair of baggy shorts. (SOF 83.) Plaintiff alleges that Defendant Corcoran put his finger in the cuff of her shorts, lifted the shorts up her thigh and lamented, "oh, is it casual wear today?" (SOF 84.) Defendant Staubitz did not know about these incidents until being told about Plaintiff Golden's vest measuring which he promptly discussed with her. (SOF 22.) Defendant Staubitz directed Captain Jay Swart to investigate allegations against Defendant Corcoran and an investigation was ultimately initiated by the Arizona Department of Administration ("ADOA"). (SOF 25, 27.) As a result, Defendant Staubitz learned of additional complaints against Defendant Corcoran, including those by Plaintiff Hebets, Officer Traci Woody Carmen, a white female, and Officer Jeffrey Miller, a white male. (SOF 26, 116.) Defendant Corcoran was placed on administrative leave pending investigation on September 12, 2002. (SOF 28) Five days later, he submitted notice of his intent to retire effective September 23, 2002. (SOF 33.) On August 8, 2003, more than three hundred days after the last alleged act of sexual harassment, Plaintiffs Golden and Hebets filed an EEOC charge alleging sex and national origin discrimination and retaliation. (SOF 55, 98.)

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B.

Plaintiff Golden's Retaliation Allegations.

Plaintiff Golden, whom the Department allowed to work part time (two ten-hour shifts) to spend more time with her children, alleges that her schedule was changed in retaliation for complaining about Defendant Corcoran's alleged sexual harassment. (SOF 2, 43, 44.) Prior to May 2003, Sgt. Neus supervised Plaintiff Golden. (SOF 3, 39.) Under his supervision, she worked patrol and he never assigned her to less favored state building posts worked by other officers. (SOF 39.) In May 2003, Plaintiff Golden's new supervisor, Sgt. Hollis Corey, assigned Plaintiff to work one of her ten hour shifts on patrol and one shift in a state building assignment. (SOF 43.) Other capitol police officers had previously complained to Sgt. Corey about Plaintiff Golden receiving preferential treatment from Sgt. Neus in her work assignments and unfair labor divisions. (SOF 42.) Plaintiff Golden complained about the assignment to her friend Sgt. Neus and Defendant Staubitz, in an attempt to diffuse the matter, allowed Plaintiff to work patrol and not work building assignments. (SOF 44, 45.) In 2004, Plaintiff Golden's shift was changed from working Saturdays and Mondays to Saturdays and Sundays. (SOF 56, 57.) Sgt. Corey made the schedule change because he had too many supervisors working on Mondays and no supervisors working on Sundays. (SOF 59.) Sgt. Corey felt the Sunday crew needed proper supervision and assigned Corporal Golden to this shift. (SOF 60, 62.) Sgt. Corey did not assign the other corporal because, as a full time employee, the other corporal had additional administrative tasks and needed to be available Monday through Friday. (SOF 61.) Sgt. Corey had previously assigned another male corporal to work weekends to ensure weekend crews had an experienced supervisor. (SOF 63.) In addition, Plaintiff Golden also claims a reminder memo asking her to sign a log book was retaliatory. (SOF 47.) But others were also given the same memoranda. (SOF 53.)
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C.

Plaintiff Hebets Retaliation Allegations.

Plaintiff Hebets contends she was retaliated because the department looked into complaints about her from other officers regarding an arrest she handled, reviewed a high speed chase per internal procedure and asked her about a prior incident when drugs were found in the back of her patrol car after she reported finding drugs in the back of another officer's patrol car. (SOF 91-97, 99, 100, 102, 103.) No discipline or any adverse action was taken against Plaintiff as a result of any of these incidents. (SOF 97, 101, 104.) Plaintiff Hebets also claims retaliation because she was given a memorandum of concern. (SOF 108.) The memorandum is based in significant part on Plaintiff Hebets inappropriately discussing an ongoing sexual harassment investigation concerning her friend Sgt. Jim Warner with their friend, Sgt. Neus, a charge she admits and which played a role in Sgt. Neus' termination. (SOF 111, 112.) A white female officer, Cheryl Judd, received a similar memorandum of concern for her part in disclosing too much information regarding the same investigation. (SOF 113.) II. LEGAL DISCUSSION A. Plaintiffs' sexual harassment claims are barred by the statute of limitation.

Title VII makes it unlawful for an employer to discriminate against an employee "because of sex." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is a form of sex

discrimination. Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001). Plaintiffs' sexual harassment claims involve the conduct of Defendant Corcoran who left state service in September 2002. To bring suit under Title VII, a person must first file an administrative charge of discrimination with the EEOC. In a "deferral state" such as Arizona, the charge must be filed with the EEOC within 300 days of the alleged discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1). Plaintiffs filed their EEOC charges on August 8, 2003, more than 300 days after Defendant Corcoran's last alleged sexual harassment of either Plaintiff.

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(SOF 55, 89, 98.) And Plaintiffs have not identified any conduct that can fairly be characterized as sexual harassment occurring within the limitations period. Their sexual harassment claims are time barred. B. The sexual harassment Plaintiffs allege is not sufficiently severe or pervasive to have altered the terms and conditions of their employment. Even if this Court were to disregard the statute of limitations, Plaintiffs cannot establish a sexual harassment claim under Title VII or ACRA. Title VII is not a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1999). It does not prohibit all conduct in the workplace that someone may find unpleasant or offensive. Plaintiff is required to show (1) that she was subjected to verbal or physical conduct of a sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe and pervasive to alter the conditions of her environment and create an abusive work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 1. No material facts support Plaintiff Golden's sexual harassment claim.

Plaintiff Golden's sexual harassment claim is based on two incidents. In January 2002, after attending a training seminar, Defendant Corcoran asked Plaintiff to go to his personal vehicle whereupon he presented her with a "street survival" book and a gun holster for her ballistics vest. (SOF 6.) Corcoran stated he got the gifts for Plaintiff Golden and kissed her cheek. (SOF 7.) Plaintiff Golden laughed, said thank you and left. (SOF 7.) She never reported the incident to anyone. (SOF 8.) Several months later, in the summer of 2002, Defendant Corcoran, who was trained in measuring for ballistics vests, measured Plaintiff for a ballistic vest. (SOF 11, 12.) One of the vest measurements asked for her breast cup size. (SOF 15.) Corcoran allegedly told Plaintiff he was not supposed to be measuring females and asked Plaintiff Golden if he should go to the cafeteria and get a 16 ounce, 32 ounce, or a 44 ounce cup, or could she
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say what her cup size was. (SOF 16) In a September 16, 2002, memorandum Plaintiff Golden advised that she did not object to the measurements as Defendant Corcoran as nothing inappropriate had occurred and that she did not take offense to Mr. Corcoran's comment. (SOF 31.) When asked about the incident by Defendant Staubitz, Plaintiff laughed and indicated the incident was no big deal. (SOF 23, 24.) Plaintiff's allegations fall far short of constituting the severe or pervasive conduct necessary to establish sexual harassment. In Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), a male employee forced his hand underneath the plaintiff's sweater and bra to fondle her bare breast. The Ninth Circuit held that this conduct, while reprehensible, was not sufficiently severe or pervasive to constitute a Title VII violation, and affirmed summary judgment for the employer. Id. at 923-27; see also Kortan v. California Youth Auth., 217 F.3d 1104 (9th Cir. 2000)(rejecting sexual harassment claim where evidence showed that plaintiff's male supervisor stared at her and referred to women generally as "bitches" and described one as a "castrating bitch"); Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995)(rejecting sexual harassment claim where male supervisor called plaintiff "pretty girl," made sexually suggestive comments, grunting sounds and gesture indicating masturbation). Indeed, "simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment'" Faragher, 524 U.S. at 788. Defendant Corcoran's alleged kissing Plaintiff Golden's cheek while presenting her with a training manual and vest holster, while perhaps unwelcome, was an isolated, de minimis incident. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000)("There are some forms of physical contact which, although unwelcome and uncomfortable for the person touched, are relatively minor ... [which] if few and far between they typically will not be severe enough to be actionable in and of

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themselves. A hand on the shoulder, a brief hug, or a peck on the cheek lie at this end of the spectrum.")

2.

No material facts support Plaintiff Hebets' sexual harassment claim.

For her sexual harassment claim, Plaintiff Hebets alleges that during the summer of 2002, Defendant Corcoran also measured her for a ballistics vest. (SOF 72.) Immediately prior to the measurement, Plaintiff Golden joked with Plaintiff Hebets that she was supposed to measure her, but did not want to. (SOF 71.) Plaintiff Hebets alleges

Defendant Corcoran acted inappropriately because he took her into his office, closed the door and had her remove her outer shirt and ballistics vest. (SOF 73, 75.) When being measured, Plaintiff Hebets was wearing a sports bra covered by a t-shirt. (SOF 75.) While never touching her breasts or saying anything inappropriate, Defendant Corcoran lifted the measuring tape over her breasts instead of allowing Plaintiff Hebets to do it herself, and stood to her side instead of measuring her from the back. (SOF 77, 78.) Plaintiff never formally complained about the incident. Although she spoke with her friends Sgt. Warner, Captain Swart and friend/supervisor Sgt. Neus about the incident, she never reported the matter as sexual harassment, did not ask them to take any action and had no expectations that they would take any action. (SOF 79, 80.) Plaintiff Hebets also alleges that on August 16, 2002, the third day of a training seminar that she and several other Capitol Police officers were attending, Defendant Corcoran cuffed his finger into the Plaintiff's baggy shorts, pulled them up her thigh and stated, "oh, is it casual wear today?" (SOF 82-84.) After Plaintiff Hebets pushed his hand away, Corcoran walked away and she did not speak with him about the matter. (SOF 85.) Although inappropriate, Defendant Corcoran's actions regarding the shorts were a sarcastic rebuke of her inappropriate dress at a training seminar and were not sexual in

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nature. Indeed, even Plaintiff Hebets' friend Sgt. Neus thought Defendant Corcoran was chastising her for her inappropriate dress. (SOF 86.) And even if the vest measurement and short pulling incidents are construed in Plaintiff's favor, the conduct falls far short of the severe or pervasive conduct necessary to violate Title VII or ACRA. Cf. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 870 (9th Cir. 2001)(co-workers referred to male employee as "she" and called him a "faggot" and "fucking female whore" on at least a weekly and sometimes daily basis); Draper v. Couer Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998)(over a two year period, supervisor made comments such as telling the plaintiff he wanted to have sex with her, commenting on the plaintiff's "ass," and he got on the loudspeaker to ask if she needed help changing her clothes, as several guys were willing to help). 2 In addition, the "working environment must both subjectively and objectively be perceived as abusive." Brooks, 229 F.3d at 923. Plaintiffs have a double standard when it comes to what is abusive and what is not. Plaintiffs were not offended by their and their friends' banter regarding a website discussing anal sex and how the girl in the website looks like Plaintiff Golden, or when "friends" joke about their breasts. (SOF 34, 35, 36, 37, 38.) Yet they claim a comment analogizing breast size to drinking cup size and being measured from the side instead of the back are abusive enough to alter the terms and conditions of their employment. No reasonable person could believe Plaintiffs' work environment was subjectively or objectively abusive. Cf. Clark County School Dist. v. Breeden, 532 U.S 268, 270 (2001)(stating no reasonable person would believe hiring
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Two other Capitol Police Officers, Traci Woody Carmen ­ a white female and Jeffrey Miller ­ a white male, also complained about Defendant Corcoran engaging in sexually inappropriate behavior toward them. (SOF 116.) Neither Plaintiff Hebets nor Golden knew about these officers complaints against Defendant Corcoran until after he was no longer employed by Capitol Police. (SOF 117.) "Harassment of which an employee is unaware can, naturally, have no bearing on whether she reasonably considered her working environment abusive." Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000).
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panel's discussion of comment from job applicant that making love to co-worker would be like making love to grand canyon violated Title VII.) Even assuming Plaintiffs' sexual harassment claims were not time barred, summary judgment is appropriate. C. Defendant State acted appropriately to end the alleged harassment.

Once an employer knows or should know of co-worker harassment, the employer has a remedial obligation. An employer is responsible for harassment by a co-worker unless it takes adequate remedial measures. Yamaguchi v. United States Dept. of Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997). Plaintiffs. Defendant Corcoran never supervised

Thus, Defendant State's remedial actions in response to Plaintiff's sexual

harassment allegations are assessed under a negligence standard. See e.g. Swinton v. Potomac Corporation, 270 F.3d 794, 803-804 (9th Cir. 2001). The remedial action must be reasonably calculated to end the harassment. Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991). The standard, however, is "not whether any additional steps or measures would have been reasonable if employed, but whether the employer's actions as a whole establish a reasonable mechanism for prevention and correction." Holly D. v. California Institute of Technology, 339 F.3d 1158, 1177 (9th Cir. 2003). Neither Plaintiff filed a sexual harassment complaint against Defendant Corcoran pursuant to Department policy. In their discussions with friendly supervisors, neither described the vest measurements as sexual harassment nor had expectations that any thing would be done as a result of their conversations. (SOF 19, 20, 21, 24, 31, 79, 80, 81.) When Defendant Staubitz learned of Plaintiff Golden's being measured, he addressed the matter with her and she stated it was "no big deal"; a remark wholly consistent with her written statement that she did not object to the measurement because "no inappropriate contact was occurring." (SOF 31.) Defendant Staubitz nevertheless directed an

investigation of Defendant Corcoran ensue; an investigation which uncovered other allegations of wrongdoing.
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(SOF 25, 26.) 10

Defendant Corcoran was placed on
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administrative leave pending an investigation and within a week submitted his intent to retire. (SOF 28, 33.) Plaintiffs' bemoaning that a full and complete investigation was not completed because Corcoran retired is irrelevant. As explained in Swenson v. Potter, 271 F.3d 1184, 1197 (9th Cir. 2001): In considering whether the employer's response was appropriate, we consider the overall picture. Even assuming the investigation was less than perfect, the [employer] nevertheless took prompt action to remedy the situation. The harassment stopped. Id. The Department's actions removed Defendant Corcoran from the work environment. The alleged sexual harassment stopped. Defendant's obligations were met. Summary judgment is appropriate. D. Plaintiffs' disparate treatment claims fail because Plaintiffs were not treated differently than any similarly situated persons outside of their protected class.

To prevail on their claims of disparate treatment discrimination in violation of Title VII, each Plaintiff must show that she belonged to a protected class; was subjected to an adverse employment action; and similarly situated employees not in her protected class received more favorable treatment. Kang v. U. Lim America, Inc., 296 F.3d 810, 817 (9th Cir. 2002). Plaintiffs' allege they were treated differently because of their gender and national origin. Their claims fail under either theory. As evidence of their national origin disparate treatment claim, they allege that their complaint of sexual harassment against Defendant Corcoran was not investigated but white female Cheryl Judd's sexual harassment claim against Plaintiffs' friend, Sgt. Jim Warner, was investigated. (SOF 105, 106.) Plaintiff's argument is misguided on two grounds.

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First, Plaintiffs were treated no differently than the white male and female officers who also alleged Defendant Corcoran acted in a sexually inappropriate manner. Upon learning of the allegations by several officers, including Plaintiffs, against Defendant Corcoran, Defendant Staubitz placed Defendant Corcoran on administrative leave pending an investigation. And Defendant Corcoran elected to retire within days after being placed on administrative leave and prior to being interviewed. (SOF 25, 26, 28, 33.) Plaintiffs argue that a full investigation should have been completed even after Corcoran's retirement and complain that they were not told the investigation's outcome. But Plaintiffs received the same information and treatment as the white female and white male officers who alleged Defendant Corcoran engaged in sexually inappropriate behavior. (SOF 116.) More, Sgt. Warner, unlike Defendant Corcoran, did not retire/resign from State Service after being placed on administrative leave pending a sexual harassment investigation. Instead, Sgt. Warner resigned at the conclusion of the investigation. (SOF 106). That Defendant Corcoran chose to retire prior to ADOA concluding its investigation and Sgt. Warner elected to resign after ADOA completed its investigation does not evidence disparate treatment. Both alleged harassers were allowed to voluntarily leave state service, except Defendant Corcoran was removed far earlier in the process. Again, there was no disparate treatment. Finally, Plaintiff Hebets alleges that she was issued a memorandum of concern for interfering in Sgt. Warner's investigation while Traci Woody Carmen, a white female, was not. Plaintiff's argument again fails to evidence disparate treatment. Defendant Staubitz, while not having any information that Officer Woody Carmen engaged in conduct similar to Plaintiff Hebets, issued a memorandum of concern to another white female officer, Cheryl Judd, for disclosing too much information about the investigation to a witness. (SOF 113, 116, 118.) Again, both Hispanic and white officers were similarly treated.

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Plaintiff Hebets' contention that she was treated differently because of her gender regarding the memorandum of concern is equally disingenuous. Her white male

supervisor, Sgt. Neus, with whom she spoke regarding the pending investigation was terminated, in part, for his actions. (SOF 112.) E. No Genuine Issues of Material Fact Support Plaintiffs' Retaliation Claims. Title VII also prohibits retaliating against an employee who opposes discriminatory practices. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Plaintiffs must show that they engaged in a protected activity, that they were thereafter subjected to adverse employment action by their employer, and that a causal link exists between the two. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). 1. Plaintiff Golden has no evidence she was retaliated against.

Plaintiff Golden's retaliation claim is based largely on her perceptions of unfair treatment by Sgt. Hollis Corey, a person who has no interest in this matter, no allegiance to Defendant Corcoran and has never been alleged to have sexually harassed either Plaintiff. Sgt. Corey was not friends with Defendant Corcoran, did not socialize with him and, in fact, did not have a favorable impression of him. (SOF 46.) Plaintiff Golden candidly admits she has no evidence that Sgt. Corey's actions were in retaliation for her complaints against Defendant Corcoran. (SOF 46.) Instead, as Plaintiff Golden's new supervisor, Sgt. Corey made legitimate, non retaliatory decisions regarding her scheduling. Displeased with these supervisory decisions, Plaintiff Golden characterizes the actions as retaliation. At her request, Capitol Police allowed Plaintiff Golden to work part time (two ten hour shifts) which allowed her to spend time with her children. (SOF 2.) She claims that in May 2003, when she was transferred from Sgt. Neus' supervision to Sgt. Corey's supervision, Sgt. Corey required her to work one of her ten hour shifts in a building and one patrolling, rather than working both shifts patrolling as Sgt. Neus had allowed. (SOF 40-43.) Sgt. Corey changed Plaintiff's schedule in response to complaints from other
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officers who perceived Plaintiff was receiving preferential assignments from her friend/supervisor Sgt. Neus by not having to work in buildings as officers did and felt the division of labor was unfair. (SOF 42. 43.) Plaintiff complained to Sgt. Neus about the assignment. (SOF 44.) Defendant Staubitz, in an attempt to diffuse the matter, directed that Plaintiff Golden could spend both shifts on patrol and would not have to work in buildings unless it was operationally necessary. (SOF 45.) Since then, Plaintiff has not worked in a building. (SOF 45.) This does not evidence retaliation. Cf. Kortan v. California Youth Authority, 217 F.3d 1104, 1112 (9th Cir. 2000)(finding no evidence of retaliation when supervisor, whose actions mattered, raised performance evaluation ratings to acceptable levels after alleged harasser had negatively rated employee). Plaintiff Golden also complains that in 2004 she was assigned to work Saturdays and Sundays instead of Saturdays and Mondays because her supervisors, Sgt. Corey and Lieutenant John Harkness (another disinterested Capitol Police officer) wanted a corporal to work weekends. (SOF 57.) Sgt. Corey transferred Plaintiff because he had two

corporals, himself, several other sergeants, lieutenants and other superior officers available to work and supervise Monday through Friday, but no supervisory officer to work Sundays. (SOF 59.) Further, Sgt. Corey felt it was important for the Sunday crew to have a true supervisory officer available to supervise and work with officers working Sundays. (SOF 60, 62.) Of the two corporals available, Corporal Miller and Plaintiff Golden, Corporal Miller worked full time and was responsible for numerous administrative tasks necessitating his availability Monday through Friday. (SOF 61.) Plaintiff, who worked two days per week, did not carry the additional administrative duties and was the logical choice to fill the Sunday assignment. (SOF 61.) Plaintiff Golden disagreed with the assignment because she believes other shifts are run by "officers in charge." But she admittedly does not know whether it is better to have a shift run by a corporal or sergeant as opposed to an officer in charge. (SOF 64, 65.) In fact, Sgt. Corey had previously
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assigned a white male corporal to work weekends. (SOF 63.) Aside from the assignment itself, Plaintiff has no knowledge that the desire to have a corporal supervising the weekend crew was retaliatory. (SOF 65.) But to defeat a motion for summary judgment, Plaintiffs must introduce "direct or specific and substantial circumstantial evidence of pretext." Manatt v. Bank of America, NA, 339 F.3d 792, 801 (9th Cir. 2003). Plaintiff Golden's personal subjective beliefs regarding the propriety of assigning a corporal to supervise a weekend shift are insufficient to establish a retaliation claim. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996)(explaining that "an employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact."). Plaintiff Golden also alleges Sgt. Corey sent her a memorandum reminding her to sign a log which she had failed to sign. (SOF 47.) She alleges others who failed to sign the log were not given reminder memorandum. In fact, Plaintiff received a reminder note after Sgt. Corey asked her and another officer to ensure they signed the log book. When the one officer signed the book and Plaintiff patently ignored the order, she received the reminder note. (SOF 51.) Other male and female officers received similar reminder notes within the same time period. (SOF 53.) Further, the note was not a form of discipline and there were no changes to the conditions of her employment as a result of the memorandum. (SOF 52.) Plaintiff Golden contends that her only reason for believing Sgt. Corey's action was retaliatory was because he was short with her and not as friendly as he used to be. (SOF 54.) Even assuming Plaintiff's perceptions of Sgt. Corey's demeanor were accurate, ostracism suffered at the hands of co-workers cannot constitute an adverse employment action. Brooks, 229 F.3d at 929. More, no straight face argument can be made that a reminder note to sign a log book would deter an employee from reporting Title VII violations. Id. (stating "only non-trivial employment actions that would deter reasonable

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employees from complaining about Title VII violations will constitute actionable retaliation.") 2. Plaintiff Hebets was not retaliated against.

Plaintiff Hebets retaliation claims are equally tenuous. She alleges Sgt. Corey was behind an allegation against her that she told her friend, Sgt. Warner, that steroid use would cause Sgt. Warner's "wiener to shrivel." (SOF 109.) She opines Sgt. Corey made the comments about her because he simply does not like her and her friends within Capitol Police. (SOF 110.) This is not retaliation for engaging in protected activity. Further, Plaintiff's steroids comment (which she denies making) was not the driving force for the memorandum of concern. In fact, the memorandum addresses Plaintiff Hebets discussing with her friend, Sgt. Neus, the details of her interview in an ongoing sexual harassment investigation of their friend, Sgt. Jim Warner, a charge she admits. (SOF 111, 112) Indeed, Plaintiff Hebets and Sgt. Neus' conversation formed part of the basis for terminating Sgt. Neus' employment. (SOF 112.) In short, Plaintiff received a

memorandum of concern regarding her inappropriate actions in attempting to undermine an administrative investigation. Cheryl Judd, another police officer, received a

memorandum of concern for similar reasons. (SOF 113.) More, Plaintiff Hebets received no loss of pay or change in the conditions of her employment as a result of the memorandum of concern. (SOF 114.) Plaintiff Hebets also contends that the Department's review of two complaints brought against her by fellow officers was retaliatory. First she claims an internal review of a complaint by Officer Jeff Miller regarding her actions in a police pursuit were retaliatory. (SOF 99.) But to her knowledge, the investigation has been closed and there were no adverse findings or actions taken against her. (SOF 100.) On another occasion, Capitol Police Officer Bob Gerome alleged Plaintiff Hebets acted inappropriately in conducting an arrest. (SOF 91, 92.) This ultimately turned out to be a training issue, and
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did not result in any discipline or adverse employment action. (SOF 93-97.) Finally, Plaintiff Hebets argues that after she wrote a report about finding illegal drugs in the back of one officer's patrol car, Defendant Staubitz asked Sgt. Neus to ask Plaintiff about an incident where drugs were found in the back of her patrol car several months prior. (SOF 102.) In fact, Defendant Staubitz asked Sgt. Neus to follow up with Plaintiff Hebets because Sgt. Neus had failed to do so months earlier. (SOF 102, 103.) disciplinary action was imposed. (SOF 104.) "Not every employment decision amounts to an adverse employment action." Brooks, 229 F.3d at 928. Various officers complained or reported Plaintiff Hebets' actions performed in the line of duty. The matters were reviewed. No wrongdoing was found. No discipline was imposed. She lost not pay. Nothing was placed in her personnel file. No adverse employment action occurred. See Hockman v. Wesward Communications, LLC, 407 F.3d. 317, 331 (5th Cir. 2004)(holding that Plaintiff's claim she was subjected to a baseless investigation did not constitute adverse employment action); Peltier v. U.S., 388 F.3d 984, 988 (6th Cir. 2004)(finding that a suspension with pay and full benefits pending timely investigation into suspected wrongdoing is not an adverse employment action); accord Von Gunten v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001); Haddon v. Executive Residence at White House, 313 F.3d 1352, 1363 (Fed.Cir. 2002). Plaintiff Hebets' filing an EEOC charge does not absolve her from inquiries regarding potential misconduct. Brooks, 229 F.3d at 928. Defendant reviewed Again, no

disinterested officers' complaints against Plaintiff on legitimate police business issues. No adverse finding occurred and no adverse employment action was taken. Plaintiff Hebets' retaliation claim fails. Conclusion No genuine issue of material facts supports Plaintiffs' claims against Defendant State and summary judgment is appropriate.
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DATED this 5th day of August, 2005. Terry Goddard Attorney General

LISA K. HUDSON MICHAEL M. WALKER Assistant Attorneys General Attorneys for Defendants ADOA and Capitol Police ORIGINAL E-FILED With the Clerk of the Court United States District Court and then hand delivered this 5th day of August, 2005, to: The Honorable Paul G. Rosenblatt United States District Court 401 W. Washington Phoenix, AZ 85003 By: __________________________ Linda A. Martin Secretary to Michael M. Walker
ELS04-0037

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