Free Motion for Directed Verdict - District Court of Arizona - Arizona

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GAONA LAW FIRM
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David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. Defendant Frank Favela moves this Court for a directed verdict, dismissing Plaintiff's only claim against him for supervisory liability because he is entitled to qualified immunity. Mr. Favela is entitled to qualified immunity because none of his conduct in this case violated a "clearly established statutory or constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The standard for determining qualified immunity is objective. If the law at [the time of the official's actions] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to `know' that the law forbade conduct not previously identified as unlawful. Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995) (citation omitted). No. CV04-0289 PHX MHM DEFENDANT FRANK FAVELA'S MOTION FOR DIRECTED VERDICT REGARDING QUALIFIED IMMUNITY

Case 2:04-cv-00289-MHM

Document 65

Filed 12/13/2005

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

Plaintiff's claims in this case are for sexual harassment, or sexually hostile work environment, pursuant to Title VII. According to the United States Supreme Court, "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); see also Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting EEOC Guidelines, 29 C.F.R. § 1604.11(a), and finding that sexual harassment creating a hostile work environment includes "physical conduct of a sexual nature"); Nichols v. Azteca Restaurants Enterprises, Inc., 256 F.3d 864, 872 (9th Cir. 2001) (Plaintiff must prove that "any harassment took place "because of sex'") (quoting Oncale). Moreover, the Supreme Court in Oncale also recognized that the Court has "never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations." 523 U.S. at 80. Plaintiff has the burden to prove that Defendant Favela "violated a right that was `clearly established' at the time of the alleged misconduct." Bator v. Hawaii, 39 F.3d 1021, 1027 (9th Cir. 1994). In the present case, Plaintiff may be able to show that physical conduct occurred between her and Defendant Peralta, and that Defendant Favela either knew of this conduct or witnessed this conduct. Plaintiff has not demonstrated, however, that the conduct was sexual or that the conduct occurred because of sex. Because there is no clearly established law that forbids all physical conduct in the workplace (even harassing or annoying physical conduct), Defendant Favela could not have known that the non-sexual horseplay between Plaintiff and Defendant Peralta was unlawful. To the contrary, the non-sexual horseplay between Plaintiff and Defendant Peralta is not prohibited by Title VII according to Oncale. In other words, Plaintiff has failed to provide any clearly established law forbidding all physical conduct in the workplace or even forbidding non-sexual horseplay. Indeed, the Ninth Circuit Court of Appeals has never determined whether
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GAONA LAW FIRM

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

non-sexual conduct between co-workers or even simple hostility between co-workers of the opposite sex would state a cause of action under Title VII. See Ellison v. Brady, 924 F.2d 872, 875 n.5 (9th Cir. 1991); see also Intlekofer v. Turnage, 973 F.2d 773, 784 (9th Cir. 1992) (Wiggins, J., dissenting). Moreover, with regard to Defendant Favela's supervisory liability and whether Mr. Favela took adequate remedial action, the case law is clear that where there is strong evidence of sexual harassment, some form of disciplinary action must be taken. Swenson v. Potter, 271 F.3d 1184, 1197 n. 16 (9th Cir. 2001) (citing Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997). But there is no clearly established law identifying what remedial action is sufficient in cases such as this where the alleged inappropriate conduct is not obviously sexual(e.g., groping of a breast). See id. at 1197 ("where the proof of harassment is weak and disputed . . . the employer need not take formal disciplinary action"). There are no cases with sufficiently similar facts to this case that would provide "clearly established" guidance to supervisors or that would put a reasonable supervisor on notice that he or she failed to take proper remedial action and, therefore, violated Plaintiff's federal rights. Accordingly, Defendant Favela is entitled to qualified immunity. Plaintiff has not provided any evidence that a reasonable supervisory official in Favela's position would have known that his conduct (i.e., his remedial action taken) violated any clearly established federal rights. Harlow, 457 U.S. at 818. For the foregoing reasons, Defendant Favela respectfully moves for a directed verdict in his favor based upon qualified immunity. DATED this 13th day of December, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants
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GAONA LAW FIRM

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CERTIFICATE OF SERVICE I hereby certify that on December 13, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on December 13, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 s/David F. Gaona

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GAONA LAW FIRM

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