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

1 2 3 4 5 6 7 8 9 10 11 Regis Corporation: Super Cuts, 12 Defendant. 13 14 15 Pending before the Court is Defendant Regis Corporation's Motion for Summary 16 Judgment (Doc. # 40). Plaintiff responded and Defendant replied. 17 Plaintiff filed a complaint alleging the following against Defendant, her former 18 employer: 1) age discrimination in violation of 29 U.S.C. § 621(a)(1); 2) national origin and 19 20 21 22 23 24 25 26 27 28 Defendant moves for summary judgment only on Plaintiff's national origin discrimination claim. But Plaintiff also alleges she was the only Hispanic employed at her store and therefore is claiming discrimination based on race. Because Defendant did not move for summary judgment on this issue, it will proceed to trial. Defendant does not move for summary judgment on this claim, but urges the Court to find that Plaintiff has not brought a claim for violation of the FMLA. The Court declines to do so. Defendant claims that it brought out at Plaintiff's deposition that she is not claiming a violation of the FMLA. However, the Court notes that the deposition pages where Plaintiff was asked about the FMLA were not attached to Defendant's Statement of Facts.
Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 1 of 8
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Mary Csanyi, Plaintiff, vs.

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No. CV 03-1987-PHX-JAT ORDER

race discrimination in violation of 42 U.S.C. § 2000(e)1; 3) violation of the Family Medical Leave Act (FMLA)2; and 4) retaliation in violation of 42 U.S.C. § 2000(e).3 Plaintiff was

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employed by Supercuts as a hair stylist for almost five years. From the record, it appears that her employment relationship did not begin to sour until summer 2003 when a new manager, Cara Smith, started managing the Indian Bend store.4 Plaintiff is Hispanic, from Bolivia and was approximately 50 years old at the time of the incidents which culminated in her being transferred from the store on Indian Bend Road to the store on Bell Road, some 25 miles away. Plaintiff claims that Smith told her that she did not like working with old people and that she did not like working with Plaintiff because she could not understand her accent.

The transcript pages were merely referenced and Plaintiff claims not to have been given a copy of the deposition transcript so she would have been unable to challenge Defendant's claim in her response. Further, the basis for Plaintiff's FMLA claim, that Defendant cancelled her health insurance while she was on FMLA leave in 2003, was not discussed at her deposition. At deposition, Plaintiff testified that she was not bringing a claim based on Defendant's refusal to accommodate her set schedule so that she could care for her elderly mother. Finally, Defendant had other avenues to challenge whether Plaintiff's complaint brought a claim for violation of the FMLA. Defendant could have moved for a more definite statement, moved to dismiss, moved to strike or moved for summary judgment. A footnote in a motion for summary judgment is not the appropriate vehicle for dismissing one of Plaintiff's claims. Plaintiff's FMLA claim will proceed to trial. Defendant did not move for summary judgment on Plaintiff's claim of retaliation. Yet, her complaint states that "Mrs. Ortega assisted me in harassment complaint against an employer in October 2002. From that time on I experienced retaliation from her." Plaintiff explained in more detail in her controverting statement of facts that she filed a harassment and discrimination claim against another employee and that the claim was not processed. The Court notes that retaliation does not appear to be part of Plaintiff's charge with the EEOC. However, "a plaintiff's failure to file an EEOC complaint does not bar her absolutely from filing a Title VII suit; exhaustion of administrative remedies is not jurisdictional but is merely a condition precedent to suit which a defendant may waive or be estopped from asserting." Stache v. International Union of Bricklayers and Allied Craftsmen, AFL-CIO, 852 F.2d 1231, 1233 (9th Cir. 1988). Because Defendant did not raise failure to exhaust administrative remedies in either its answer or motion for summary judgment, the Court finds it waived and the claim will proceed to trial. The Court finds that the two employee incident reports included by the Defendant from 2000 are too attenuated in time to be probative of Plaintiff's job performance in 2003. There were no incidents from 2000 to 2003. Plaintiff's problems in 2003 appear to have started when Smith became manager. -2Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 2 of 8
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Plaintiff also claims that Smith did not like her because Plaintiff reported Smith to upper management when she came in late or left early. Defendant claims that Plaintiff was transferred because of her inability to get along with other employees at the Indian Bend store and for being disrespectful to the manager. Specifically, Defendant claims that Plaintiff made derogatory comments regarding Russians that were offensive to two Russian employees. In support of this argument, Defendants have attached affidavits of the two Russian employees as well as an affidavit by Smith. Defendants have also attached copies of two incident reports written by Smith but unsigned by Plaintiff. Plaintiff claims she was never presented with the incident reports. Smith claims and it is noted on the incident reports that she refused to sign them. Neither of the incident reports address the alleged comments made by Plaintiff regarding Russians. Plaintiff denies making any such comments. A court can only grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmovant to establish the existence of material fact. Id. A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment. Id. at 255. The "requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence. The plaintiff need only offer evidence which gives rise to an inference of -3Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 3 of 8

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unlawful discrimination." Wallis v. J.R. Simplot Company, 26 F.3d 885, 888 (1994). In addition, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). The analysis for Title VII and ADEA claims can be combined because the burdens of proof and persuasion are the same. Id. A plaintiff must first establish a prima facie case of discrimination. Id. at 889. If a prima facie case is established, then the burden shifts to defendant to "articulate a legitimate nondiscriminatory reason for its employment decision." Id. If defendant meets this burden, then the plaintiff "must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory." Id. To establish a prima facie case of age discrimination under the ADEA and Title VII, a plaintiff must show that she was: 1) a member of a protected class [age 40-70, ADEA, race, national origin, Title VII]; 2) performing her job in a satisfactory manner; 3) was subject to an adverse employment action; and 4) was treated less favorably than similarly situated individuals outside the protected class. See id. The Court finds that Plaintiff has established a prima facie case under both the ADEA and Title VII. She meets the age requirement. She is Hispanic and from Bolivia, therefore satisfying the protected class requirement under Title VII. The Court finds that there is a disputed fact as to whether she was performing her job in a satisfactory manner. The incident reports that Defendants have provided the Court are all authored by the manager that Plaintiff claims disliked her because she was old and because she had an accent. Plaintiff claims the forms were never given to her to sign and Defendant claims she refused to sign them. It is not for this Court to assess the credibility of these two witnesses to determine what version is most accurate. Furthermore, Defendants submit affidavits from two Russian employees who state that Plaintiff made derogatory comments about people of Russian descent. However, Plaintiff denies ever making such a statement and claims she never had trouble at work. While Defendant claims that Plaintiff's denials are self-serving, this is the type of evidence that these kinds of cases rest on. Plaintiff -4Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 4 of 8

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recites one version of events and Defendant recites another. There is not independent evidence that Plaintiff could put on to prove that she did not make the comments Defendant claims she made. Her testimony denying she made such comments is what the jury will have to rely on in deciding the matter. The Court further finds that Plaintiff's statement that she had received awards in 2003 for productivity and sales supports a finding that she was performing her job satisfactorily. Construing these disputed facts in Plaintiff's favor, as the Court must do, the Court finds Plaintiff survives summary judgment as to this element. The Court rejects Defendant's argument that Plaintiff did not suffer an adverse employment action. Plaintiff was transferred to a store some 25 miles away from the Indian Bend store. Although she did testify at deposition that her salary remained the same, other aspects of her employment were affected. For example, she claims that she received less tips because her client base was centered around the Indian Bend store, not 25 miles away at the Bell Road store. It is intuitive that in a service-based industry, moving away from your clients would impact your income. Further, Plaintiff states that the Bell Road store had 10 stylists already and that she could not get enough hours at that store, whereas the Indian Bend store was short on stylists. This also impacts her pay and is clearly an adverse employment action. Even if these facts were not true, however, the mere fact that she was transferred is sufficient in the Ninth Circuit to establish an adverse employment action. Defendant relies on Spears v. Mo. Dep't. of Corr. & Human Resources, 210 F.3d 850, 853-54 (8th Cir. 2000) for the proposition that a transfer which resulted in "mere inconvenience" to plaintiff, absent "any impact on her job title, salary, benefits, or any other material aspect of her employment," was not an adverse employment action. However, what constitutes an adverse employment action in the Ninth Circuit is much broader than in the Eighth Circuit. In Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000), the Ninth Circuit specifically rejected the "restrictive view of adverse employment action" held by the Eighth Circuit. Instead, the Court joined with the circuits that applied a liberal definition of adverse employment action modeled after the EEOC regulations themselves. Id. The Court noted that "the EEOC test -5Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 5 of 8

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covers lateral transfers . . . these actions are all reasonably likely to deter employees from engaging in protected activity." The decision in Ray, while in the context of a retaliation claim, has been relied on by the Ninth Circuit in a national origin discrimination case. See Fonseca v. Sysco Food Services of Arizona, 374 F.3d 840, 847 (9th Cir. 2004) (citing Ray for the proposition that "we define adverse employment action broadly.") The decision in Ray is also consistent with Ninth Circuit precedent. For example, the Ninth Circuit had stated more than 20 years ago that a transfer to another job of the same pay and status my constitute an adverse employment action. St. John v. Employment Dept., 642 F.2d 273, 274 (9th Cir. 1981). Finally, the Court finds that Plaintiff has presented sufficient evidence to satisfy the prima facie element that she was treated less favorably than other employees not in a protected class. Plaintiff alleges that her supervisor, Ms. Smith, said that she did not like old people and did not like working with Plaintiff because she could not understand her accent. It was Ms. Smith who told the area supervisor that she would quit if Plaintiff was not transferred. Title VII "prohibits an employer from treating an employee disparately because he has an accent, unless the job requires a certain accent." Fonseca, 374 F.3d at 849 n. 3. Discriminatory remarks "may create an inference of discriminatory motive." Mustafa v. Clark County School District, 157 F.3d 1169, 1180 (9th Cir. 1998). Although stray discriminatory remarks may not be actionable, where the comment is made by a person with authority, as here, summary judgment is inappropriate. Id. Additionally, in her complaint to the EEOC, Plaintiff claims that she was the oldest employee in the store and the only Hispanic. Defendants do not dispute this. It follows, therefore that as the employee transferred, she was treated less favorably than younger, non-Hispanic employees. The Court finds this sufficient to meet the minimal burden to defeat summary judgment. Having met her burden of showing a prima facie case, the burden shifts to Defendant to articulate a nondiscriminatory reason for transferring Plaintiff to the Bell Road store. Defendant's proffered reason is Plaintiff's inability to get a long with other employees and specifically the alleged comments made by Plaintiff regarding employees of Russian descent. -6Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 6 of 8

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The Court finds this a sufficient nondiscriminatory reason for transferring her to another store.5 Plaintiff must now demonstrate that Defendant's alleged reason for the transfer was a pretext for discrimination. The Court finds that Plaintiff has met this burden because there is a disputed fact about whether the alleged nondiscriminatory reason, that Plaintiff made racially derogatory comments about other employees, even happened. The Court cannot enter summary judgment on such a record. Chuang v. University of California Davis, Board of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)("[A] disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons.") Defendant also moves for summary judgment on Plaintiff's claim for backpay. Specifically, Defendant claims that Plaintiff failed to mitigate her damages by seeking alternate employment. The Court finds that Defendant has failed to meet its burden on this issue. It appears from the record that Plaintiff was under the care of a psychiatrist until February 2004 and that Plaintiff's doctor recommended that if she return to work, it be within a six mile radius of her home.6 The Court cannot say as a matter of law that Plaintiff failed to mitigate her damages. Finally, Defendant moves for summary judgment on Plaintiff's claim for punitive damages. The Court finds that Defendant has also failed to meet its burden on this issue.

The two incident reports detailing alleged customer complaints about Plaintiff are not supportive of a decision to transfer. If Plaintiff was giving poor hair cuts or acting unprofessionally in front of customers, a transfer would not cure such issues. The Court notes that it has considered everything that Plaintiff has submitted at the summary judgment stage, whether or not such evidence would be admissible at trial in the form presented by Plaintiff at the summary judgment stage. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)(focus at summary judgment stage is on admissibility of contents of evidence, not form). It is Plaintiff's responsibility to present all evidence in an admissible form at trial. -7Case 2:03-cv-01987-JAT Document 53 Filed 07/14/2005 Page 7 of 8
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The Court cannot say that no reasonable juror could find that Defendant acted with reckless disregard to Plaintiff's federally protected rights. If a juror found that Plaintiff had indeed not made any negative comments about those of Russian descent and that Defendant had actually fabricated the reason for her transfer, then such behavior could warrant the assessment of punitive damages. See Equal Employment Opportunity Commission v. WalMart Stores, Inc., 156 F.3d 989, 993 (9th Cir. 1998)(citing to EEOC's Enforcement Guidelines for proposition that evidence that employer's agents "`planned and/or attempted to conceal or cover-up the discriminatory practices or conduct' can support a finding that the employer acted `with malice or reckless indifference to the complaining party's federal protected rights.'" Accordingly, IT IS ORDERED denying Defendant's Motion for Summary Judgment (Doc. # 40); IT IS FURTHER ORDERED that the following claims shall proceed to trial: 1) age discrimination under 29 U.S.C. § 621(a)(1); 2) national origin and race discrimination under 42 U.S.C. § 2000(e); 3) Family Medical Leave Act; and 4) retaliation under 42 U.S.C. § 2000(e); 5) backpay; 6) punitive damages. IT IS FURTHER ORDERED that an order setting the Final Pretrial Conference shall follow.

DATED this 14th day of July, 2005.

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