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

Georgia A. Staton, 004863 Rebecca J. Herbst, 020491 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1752; (602) 263-7365 [email protected]; [email protected] Attorneys for Defendants Wayne and Patricia Corcoran 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 Division; Wayne Corcoran and Patricia Corcoran, husband and wife; and Andrew Staubitz and Laura Staubitz, husband and wife, Defendants. I. Introduction. Plaintiffs and Sgt. Corcoran worked together at the Capitol Police Department. Each Plaintiff claims Sgt. Corcoran 1 sexually harassed her and discriminated against her on the basis of her national origin. Golden claims three incidents of conduct: (1) Sgt. Corcoran kissed her on the cheek one time, (2) Sgt. Corcoran measured her for her ballistic vest, and (3) Sgt. Corcoran asked if he could talk to her in the parking lot at the Capital Police Department. Hebets claims two incidents: (1) Sgt. Corcoran measured her for her ballistic vest, and (2) pulled up her shorts and asked her if it was "casual day." DEFENDANT WAYNE CORCORAN'S MOTION FOR SUMMARY JUDGMENT NO. CIV 04-0320-PHX-PGR

Plaintiffs also named Sgt. Corcoran's wife as a Defendant in this lawsuit. All of Plaintiffs' allegations pertain only to Sgt. Corcoran, however. Case 2:04-cv-00320-PGR Document 83 Filed 08/05/2005 Page 1 of 14

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Summary judgment is appropriate on Plaintiffs' sexual harassment claims because even if this Court assumes Plaintiffs' allegations against Sgt. Corcoran are true,2 he did not subject either Plaintiff to severe and pervasive conduct that affected their terms and conditions of employment. Summary judgment is also appropriate on Plaintiffs' national origin discrimination claims because they both admit that they have no evidence to support this claim. II. Factual Background. In 1996, Sgt. Corcoran retired from the Phoenix Police Department after working there for 30 years. H e acted as an expert witness, body guard, and taught across the country for the next year and then joined the Capitol Police Department as an officer in July 1997. The Capital Police Department promoted him to Sergeant one year later. Sgt. Corcoran retired from the Capital Police Department in the September 2002. He currently is a Lieutenant with the Maricopa County Sheriff's Office. See DSOF ¶¶ 1-4, 8. Plaintiff Bobbie Golden was hired by the Capital Police Department in 1996 as an officer. See DSOF ¶ 9. Plaintiff Shelley Hebets was hired in 2000 as an assistant and became a sworn law enforcement officer in November 2001. See DSOF ¶ 44-45. Neither Plaintiff ever reported to Sgt. Corcoran. See DSOF ¶¶ 5, 10 and 46. Both Plaintiffs continued their employment with the Capitol Police Department after Sgt. Corcoran retired.3

Sgt. Corcoran does not concede that Plaintiffs' versions of events are true. However, even if they are, summary judgment in Sgt. Corcoran's favor is appropriate. Although Plaintiffs were still employed with the Capitol Police Department on the date of their depositions, September 14-15, 2004, Sgt. Corcoran believes that both have since resigned from the Capitol Police Department. 2 Case 2:04-cv-00320-PGR Document 83 Filed 08/05/2005 Page 2 of 14
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III.

Legal Argument. Plaintiffs have presented two theories of discrimination against Defendant

Corcoran: sexual harassment and national origin discrimination. Because Plaintiffs cannot sue Corcoran directly under Title VII, they have brought claims against him under 42 U.S.C. §§ 1981 and 1983. Holly D. v. California Inst. of Tech., 339 F.3d 1158,

1179 (9th Cir. 2003) (Title VII does not provide a cause of action against co-workers or supervisors). In cases brought under Sections 1981 and 1983 the court applies the same standards as though the case was brought under Title VII. Sischo-Nownejad v. Merced Comm'ty College, 157 F.2d 1104, 1112 (9th Cir. 1991); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998). A. Plaintiffs' Section 1981 Claim Fails Because There is No Evidence of Discrimination and No Interference with Their Employment Contracts.

Section 1981 prohibits the interference with one's employment contract on the basis of race, which the courts have held to include national origin discrimination. To recover under Section 1981, Plaintiffs must show: (1) they were subjected to intentional discrimination on the basis of their national origin, and (2) that discrimination interfered with their economic interests. Guy v. City of Phoenix, 668 F.Supp. 1342, 1351 (D. Ariz. 1987). In other words, Section 1981 "only provides a remedy for racially motivated employment discrimination which results in or impacts upon an employment decision affecting the plaintiff." Id. Plaintiffs' claims under Section 1981 fail for two reasons. First, they admit that Sgt. Corcoran never made any comments about their national origin. See DSOF ¶¶ 11 and 47. Second, Plaintiffs cannot show that Sgt. Corcoran interfered with their employment contract because they both continued working at the Capital Police Department for at least two years after Sgt. Corcoran retired. See DSOF ¶ 7. Plaintiffs have presented no evidence that Corcoran subjected them to intentional national origin 3 Case 2:04-cv-00320-PGR Document 83 Filed 08/05/2005 Page 3 of 14

discrimination or that his alleged discrimination interfered with their economic interests. Thus, this claim fails as a matter of law. B. Plaintiffs' Section 1983 Claims Fail Because They Cannot Show Discrimination or a Hostile Work Environment.

Section 1983 does not provide any substantive rights. It provides a mechanism for plaintiffs to sue for a violation of one of their Constitutional or federally protected rights. Wilson v. Garcia, 471 U.S. 261, 279 (1985). To succeed on their Section 1983 claims, Plaintiffs must prove Sgt. Corcoran discriminated against them on the basis of their national origin or sexually harassed them. 1. Plaintiff's Cannot Show National Origin Discrimination.

To succeed on a national origin discrimination claim under Section 1983, Plaintiffs must show: (1) (2) (3) (4) they belong to a protected category; they were performing their jobs satisfactorily; they suffered an adverse employment action; and other employees with the same qualifications were treated more favorably.

Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2004); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For the same reasons Plaintiffs' national origin discrimination claim fails under Section 1981, it fails under Section 1983. Not only do Plaintiffs have no evidence to show Corcoran treated them differently on the account of national origin, he did not cause them to suffer any adverse employment actions. 2. Plaintiffs Were Not Subjected to Sexual Harassment.

To establish a hostile work environment, Plaintiffs must show: (1) (2) (3) they were subjected to verbal or physical conduct because of their gender; the conduct was unwelcome; and the conduct was sufficiently severe or pervasive to alter the conditions of their employment so as to create an abusive environment.

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Kang v. U. Lim Am., Inc., 296 F.3d 810 (9th Cir. 2002). The test is both subjective and objective ­ the conduct must be unwelcome to the Plaintiffs and sufficiently severe and pervasive as judged from the perspective of a "reasonable woman." Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Golden's Allegations To support her hostile work environment claim, Plaintiff Golden claims three incidents of inappropriate conduct by Sgt. Corcoran. 1. Sgt. Corcoran kissed her on the cheek.

Golden testified that after a seminar, Sgt. Corcoran gave her some books and a device for her ballistic vest to hold a secondary weapon. Then, he kissed her on the cheek. Golden said thank you and left. She did not report the kiss on the cheek to anybody. Sgt. Corcoran never kissed Golden on the cheek again. See DSOF ¶ 12-15. 2. Sgt. Corcoran measured Plaintiff Golden for her ballistic vest and made

a joke about her cup size. In the summer of 2002, the department ordered new ballistic vests and Sgt. Corcoran, who was experienced in body armor, measured some of the officers for their vests. Golden was in the briefing room with other officers when Sgt. Corcoran approached her and told her he was going to measure her for her vest. Golden was pregnant at the time, and asked Sgt. Corcoran why she was going to be measured because she did not think the measurements would be accurate. Sgt. Corcoran replied, "it'll be fine." Golden was in civilian clothes at the time. See DSOF ¶¶ 16-17, 19-21 and 24.

Sgt. Corcoran proceeded to take the measurements with a soft measuring tape. Golden recalls Sgt. Corcoran measuring her waist, her back (from the top of her neck down to her waist), and her chest. When Sgt. Corcoran measured around Golden's chest,

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he started the tape measure at her armpit, wrapped it around her back, and measured to where it connected again at her armpit. See DSOF ¶ 22, 23, 25.

Female officers are also required to provide their bra cup size as part of the measurement. When it came time to providing a cup size, Golden claims that Sgt. Corcoran told her that he was not supposed to be measuring the female officers. He then asked her, while laughing, if he should go to the cafeteria and get a sixteen ounce, thirtytwo ounce, or forty-four ounce cup. Golden did not say anything back to Sgt. Corcoran. The entire measurement process took approximately three to four minutes. See DSOF ¶ 26-29. Golden testified that she told Captain Swart and Sgt. Neus that she was upset that Sgt. Corcoran had measured her for her ballistic vest. See DSOF ¶ 30. On September 16, 2002, Golden sent an email to Sgt. Neus about being measured by Sgt. Corcoran: Upon your request, I am providing the following information regarding Sergeant W. Corcoran's assignment to obtain measurements for replacement body armor. Sergeant Corcoran approached me during the time we were scheduled to be receiving replacement body armor and indicated that he needed to obtain my measurements. Sergeant Corcoran and I were in the briefing room at the end of a briefing. I do not recall whether or not other officers were present. While obtaining my measurements, Sergeant Corcoran related that Chief Staubitz instructed him not measure any of the female officers. As he was already obtaining the measurements and no inappropriate contact was occurring, I did not object to the measurements being taken. The only comment that was made, related to my chest size to wit Sergeant Corcoran said something to the effect, "If you want , I can go to the cafeteria and get drink cups and you can say if you are a 24, 32, or 44 ounce." I did not take offense to Sergeant Corcoran's comment as such comments have been made several times before in a joking manner. I have no recollection of any specific comments or dates and times of which they may have occurred. See DSOF ¶ 31 (emphasis added).

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3.

Sgt. Corcoran approached Golden in the parking lot of the Capitol Police

Department and told her they needed to talk. On July 23, 2003 (ten months after Sgt. Corcoran left the Department), Golden was standing outside her vehicle, talking on her cell phone when Sgt. Corcoran pulled his vehicle up along side her. He got out of his vehicle and said "he wanted to talk to her about what was going on." Golden told him that she needed to leave and she got in her vehicle. At that point, Sgt. Corcoran got in his vehicle as well. The entire exchange lasted about one minute. Apparently, Golden felt scared by Sgt. Corcoran. See DSOF ¶ 32-36. Hebets' Allegations Plaintiff Hebets claims two incidents of conduct: 1. Corcoran measured Plaintiff Hebets for her ballistic vest in his office with

the door closed. When Hebets arrived for her shift one day, Sgt. Corcoran told her that he was going to measure her for her ballistic vest. Hebets did not ask to have anybody else measure her for body armor. Hebets and Corcoran entered Corcoran's office and he closed the door. He asked Hebets to take off her outer shirt and vest so that she could be measured. She had on a sports bra over which she wore a tight white shirt.4 See DSOF ¶ 49-56. Sgt. Corcoran measured Hebets' waist, chest and back. When he measured her chest, he stood on the side of her and measured her from armpit to armpit. The palm of his hand did not touch her breast in any way. But, Hebets thought it would have been

All officers are required to remove their uniform shirt in order to obtain a proper ballistics vest measurement. The vest is worn under the shirt. Additionally, the shirt has a badge, pockets, and other items that would interfere with the measurements. See DSOF 55. 7 Case 2:04-cv-00320-PGR Document 83 Filed 08/05/2005 Page 7 of 14

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more appropriate for Corcoran to stand behind her when he measured her chest, rather than stand on her side. See DSOF ¶ 57-58, 60.

It took Corcoran approximately five to ten minutes to measure Hebets and he was measuring her the entire time. Hebets testified that Corcoran did not say anything inappropriate to her while he measured her. In fact, he did not say or do anything unrelated to the measuring for the ballistic vests. See DSOF ¶ 59, 62, 63.

Later that day, Hebets told Sergeant Warner what had happened and told him it made her uncomfortable. A few days later, she relayed the same information to Sergeant Neus. See DSOF ¶ 66. 2. On August 21, 2002, at a Street Survival training, Hebets alleges that

Corcoran pulled her shorts up high on her thigh and asked "is this the uniform of the day?" The incident occurred on the third day of the seminar. Hebets had just walked into the seminar and was wearing shorts. Hebets had dressed appropriately for the first two days of the seminar, but dressed in shorts on the third day. Sgt. Corcoran asked Hebets "oh, is it casual wear today?" Hebets claimed that as he said that, they were both standing next to each other and Corcoran "took his finger and cuffed it into the cuff of my shorts and pulled them up my thigh." Hebets did not say anything to Sgt. Corcoran but slapped his hand and pushed it away. On September 9, 2002, (two and a half weeks later) upon the request of Sgt. Neus, Hebets wrote a written complaint about the incident. She indicated that although she had previously complained to Sgt. Neus about the incident, she "did not request any action to be taken." See DSOF ¶ 68-74. a. The Alleged Conduct Is Not Severe And Pervasive.

Plaintiffs do not complain of any severe and pervasive conduct sufficient to affect the terms and conditions of their employment. Plaintiffs complain that Sgt. Corcoran

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measured them for their vests but admit he did not touch them inappropriately. In Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the plaintiff complained of a incident in which a co-worker touched her stomach and then fondled her breast underneath her sweater. The Ninth Circuit found that although this conduct was clearly offensive, it was not sufficiently severe or pervasive to establish sexual harassment. Here, Plaintiffs do not even claim that their breasts were touched. Plaintiffs claim that Sgt. Corcoran made inappropriate jokes, kissed Golden on the cheek, or tugged on Hebets' shorts but those allegations do not rise to the level of severe and pervasive conduct either. Brooks relied on other Ninth Circuit cases, and cases from other jurisdictions, that found offensive conduct, in and of itself is not sufficiently severe and pervasive to constitute sexual harassment. See e.g., Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) (per curiam) (sexually charged environment and isolated incidents of sexual horseplay that took place over a period of years); De Valle Fontanez v. Aponte, 660 F.Supp. 145, 146-47, 149 (D.P.R. 1987) (defendant pressed the plaintiff against a door and pushed his erect penis up against her); Saxton v. AT&T, 10 F.3d 526, 528, 534 (7th Cir. 1993) (plaintiff was rubbed and kissed on one occasion and resisted an attempted groping on another). See also Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) (supervisor's name-calling of women as "Madonna," "regina" and "castrating bitch" insufficient to create a hostile work environment). Here, Plaintiffs' allegations do not come close to those made or relied on in Brooks. Both Plaintiffs testified that Sgt. Corcoran did not touch them inappropriately when he took their ballistic vest measurements. They were simply upset that he measured them and Hebets thought Sgt. Corcoran should have stood behind her instead of at her side. Hebets was also upset that Sgt. Corcoran allegedly "pulled her shorts high up her

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thigh." However, if fondling one's breast underneath a sweater is insufficient to show a hostile work environment, then pulling on one's shorts (not even her leg) is insufficient. Brooks, 229 F.3d 917. Finally, if pushing one's erect penis against a co-worker is insufficient, then giving a co-worker a single kiss on the cheek is insufficient as well. De Valle Fontanez, 660 F.Supp. 146-47. b. Plaintiffs Cannot Show The Conduct W as Subjectively Offensive Either.

Further, neither Plaintiff can show Sgt. Corcoran's alleged conduct was subjectively offensive. Hebets has been measured by others for their ballistic vests, but was not uncomfortable. Hebets obtained her first ballistic vest when she graduated from the police academy at John's Uniform, where she was measured, including her waist and chest, by a man. She had a bra and t-shirt on at the time (the same as when Sgt. Corcoran measured her) and was not uncomfortable. Hebets was measured again by a man for a ballistic vest, including her waist, chest, and back, in August, 2004, at Arizona Tactical. See DSOF ¶ 78-83. Golden testified that Jim Warner, another officer in the department who was later promoted to Sergeant, made comments about her breast size but that did not offend her. Golden did not report Warner's comments about her breast size to anyone at the Capitol Police Department. See DSOF ¶ 37-38. In February of 2004, officers in the briefing room were talking about a girl on a web site, in a school uniform, who was talking about anal sex. The officers, including Hebets, thought the girl on the website looked like Golden. Golden told the other officers that she did not think the girl in the picture looked like her and went home. Golden was not offended by the references to anal sex or the officers' comments that the girl looked like her. Hebets testified that she "did not have an opinion" as to whether it was

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appropriate to look at a radio station web site talking about anal sex while on duty. See DSOF ¶ 39-43, 75-77. No reasonable jury could find Sgt. Corcoran's alleged conduct was subjectively offensive to the Plaintiffs. Hebets was not offended when other men measured her for her ballistic vests. Golden was not offended when other men commented on the size of her breasts. Further, neither Plaintiff found it offensive to view a website discussing anal sex in the workplace and joke about how the girl on the website looked like Golden. C. Sgt. Corcoran is Entitled to Qualified Immunity.

Assuming this Court finds a fact issue on the national origin and sexual harassment claims, summary judgment is still appropriate in Sgt. Corcoran's favor because he is entitled to qualified immunity. Wood v. Strickland, 420 U.S. 308, 318 (1975). In determining whether an officer is entitled to qualified immunity, the Court must focus on whether the officer had fair notice at the time that his conduct was unlawful. Brusseau v. Haugen, 125 S.Ct. 596, 599 (2004). If a reasonable official could believe the defendant's actions were legal in light of clearly established law and the information that he possessed at the time, the defendant is protected by qualified immunity. Saucier v. Katz, 533 U.S. 194, 202 (2001); Devereaux v. Abbey, 263 F.3d 1070, 1074 (9 th Cir. 2001) (en banc). Thus, a two-part test controls the qualified immunity analysis. First, the court must determine whether the law that governs the official's conduct was clearly established. Second, the court must consider whether a reasonable officer could have believed the conduct was lawful. Katz, 533 U.S. at 201-02; Act Up! Front/Portland, 988 F.2d 868, 871 (9th Cir. 1993). This standard protects "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) quoting Malley v. Briggs, 475 U.S. 335, 343 (1986).

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In Brusseau, the plaintiff claimed that an officer used excessive force by shooting him in the back as he attempted to flee. The court found that the officer was entitled to qualified immunity because the plaintiff posed a danger to other officers during the escape. The court stressed that it should not make the inquiry into qualified immunity as a "broad general proposition," i.e., whether it is acceptable to shoot a fleeing suspect in the back, but whether under the facts of the specific case the conduct was reasonable. Id. at 599. Thus, this Court should determine whether Sgt. Corcoran is entitled to qualified immunity based on the specific facts of this case, not the broad general proposition of whether sexual harassment is lawful. Plaintiffs have not identified any cases (and Sgt. Corcoran is not aware of any) that clearly establishes it is sexual harassment to give a co-worker a single kiss on the cheek, measure a co-worker for a ballistic vest, make an isolated sexual joke, or pull on a co-worker's clothing. See e.g., Saucier, 533 U.S. at 208 (finding no case that prohibited the officer from throwing a protestor in a van thereby granting qualified immunity). In fact, all the case law holds that isolated jokes and incidents of sexual conduct are insufficient to rise to the level of sexual harassment. Brooks, 229 F.3d 917; Candelore, 975 F.2d 588; De Valle Fontanez, 660 F.Supp. 145; Sexton, 10 F.3d 526; Kortan, 217 F.3d 1104. Thus, Sgt. Corcoran is entitled to qualified immunity on Plaintiffs' sexual harassment claims. IV. Conclusion. For these reasons, summary judgment in Sgt. Corcoran's favor is appropriate.

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RESPECTFULLY SUBMITTED this 5th day of August, 2005. JONES, SKELTON & HOCHULI, P.L.C.

By_________s/______________________ Georgia A. Staton Rebecca J. Herbst 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Wayne & Patricia Corcoran

ORIGINAL of the foregoing filed this __5th___ day of August, 2005 with: Clerk of the U.S. District Court District of Arizona COPIES of the foregoing mailed this __5th__ day of August, 2005, to: Marshall A. Martin, Esq. LAW OFFICES OF MARSHALL A. MARTIN 8930 E. Raintree Drive Suite 100 Scottsdale, AZ 85250 480-444-9980 FAX: 480-308-0015 Attorneys for Plaintiffs Lisa K. Hudson, Esq. Michael M. Walker, Esq. Assistant Attorneys General Office of the Attorney General 1275 West Washington Street Phoenix, Arizona 85007-2926 Attorneys for Defendants Arizona Department of Administration and Capitol Police

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Steven G. Biddle, Esq. LITTLER MENDELSON 2425 East Camelback Road Suite 900 Phoenix, Arizona 85016 Attorneys for Defendants Andrew and Laura Staubitz

___________s/_____________________

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