Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791)
MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, plaintiff, vs. Midway Holdings, Inc., Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet, defendants. Plaintiff hereby responds to Defendants' Motion for Reconsideration and respectfully asks the Court to deny the Motion because multiple material factual disputes preclude summary judgment in favor of Defendants on Plaintiff's sexual harassment and gender discrimination claims. This Response is supported by the following Memorandum of Points and Authorities and the papers already submitted by Plaintiff in opposition to Defendants' Motion for Summary Judgment. Respectfully submitted this 7th of June 2007. MONTOYA JIMENEZ A Professional Association

No. CV 03-1913-PHX MHM Plaintiff's Response in Opposition to Defendants' Motion for Reconsideration (Oral Argument Requested)

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Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES The Court's Ruling on Ms. Jerome's Sexual Harassment claim was correct and should be affirmed.

Defendants' Motion for Reconsideration first asserts that they are entitled to summary judgment on Ms. Jerome's sexual harassment claim because they have established their affirmative defenses under the Supreme Court of the United States decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), as a matter of law. The Supreme Court's opinions in Ellerth and Faragher clarified the law governing an employer's liability for a hostile work environment created by the employer's supervisory personnel. Under Ellerth and Faragher, an employer is vicariously liable for a hostile work environment created by the harassed employee's supervisors. Burlington Industries, Inc. v. Ellerth, 524 U.S. at 745, and Faragher v. City of Boca Raton, 524 U.S. at 807. If the harassed employee does not suffer a "tangible employment action," e.g., discharge, demotion, or undesirable reassignment, the employer may assert an affirmative defense--which the employer must prove by a preponderance of evidence--consisting of two necessary elements: (1) that the employer engaged in reasonable efforts to prevent and promptly correct the hostile environment, and (2) that the employee unreasonably failed to avail itself of any preventive or remedial avenues provided by the employer. Id. As the Supreme Court noted in Faragher: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof -2-

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that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id. at 745. In this case, Defendants cannot establish the first prong of the affirmative defense established by Ellerth and Faragher, namely, that the dealership exercised "reasonable care to prevent and correct promptly" any sexual harassment. To the contrary, as demonstrated in detail in Ms. Jerome's Statement of Facts, discrimination based on race, gender, religion, and age pervaded the workplace at the Midway Auto Group. For example: · · When Ms. Jerome was employed at Midway, Desk Manager Jerry Schwelling, "use[d] the word 'nigger' frequently." Ms. Jerome complained of Mr. Schwelling's use of this racial slur to Mr. Schwelling's direct supervisor at the dealership, Midway Nissan Floor Manager Mr. Rodney Berry. Mr. Berry responded that Mr. Schwelling's racial slur "didn't bother him" and that "Jerry Schwelling was there because of Mr. Cleaves. Mr. Cleaves wants him there." And he said "whatever Mr. Cleaves wants, I will do, including mopping the floors." On another occasion, a co-worker at Midway Nissan named Mike Moss referred to Ms. Jerome as a "cunt." During the course of Mr. Beaman's supervision of Ms. Jerome at Midway, Mr. Beaman directed Ms. Jerome to "only hire white males in their twenties with flat guts." Mr. Beaman also directed Ms. Jerome to discriminate against people based upon their age. As Ms. Jerome testified in her deposition: Question Answer: And this is your allegation that Mr. Beaman told you to hire flat gut twenty-year-old white males? [Mr. Beaman] also didn't like me to hire older people. I have a complaint about that as well. And that's discriminatory against me, because I was required to do something I could not do, or discriminate against other people . . . upon interviewing older candidates, he would tell me that, do them a favor, suggest them to go down to Walmart and be a door opener, a door greeter, instead not to waste my time on interviewing older candidates. He even had me pick-up--call an -3-

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ASM [Assistant Sales Manager] to come over and interview older people so they could do three by five interview. I had--he had to explain that to me, I had to explain that to, you know, ASM. I don't mean to interrupt you, but can you tell me what that means, a three by five interview? It is, "what have you done in the last three years? What are you going to do in the next five years?" And at the conclusion of the interview you tell them the hiring committee will make a decision and get back to them. And we didn't have a hiring committee.

Mr. Beaman also directed Ms. Jerome to discriminate against single mothers. Specifically, Ms. Jerome testified in her deposition that: First, [Mr. Beaman] told me not to ask if they had daycare provided, but once I found out, to conclude that they wouldn't be an appropriate candidate . . . whenever I was compelled to hire someone who seemed desperate for a job and I felt compassionate, to remind myself that it took him a full year to properly staff the Pinnacle [Nissan] dealership, and to remind himself, he kept a picture in his drawer and he described that picture to me, of a twenty-year-old white guy with a flat gut. Mr. Beaman also described a Hispanic job applicant to Ms. Jerome as a "wetback who's too big for his shoes." Mr. Beaman also told Ms. Jerome that a Hispanic employee at Midway Pontiac was an "overdressed spic in a cheap suit." Mr. Beaman also directed Ms. Jerome not to hire people with strong religious convictions because Midway's "hires" needed "a little larceny in their hearts." Similarly, Ms. Jerome testified that: The racial comments were rampage [sic, rampant] in the dealership, the whole auto team. The employees made comments as well. And I complained to other people about that. Specifically, I think I mentioned Ken Pfifer. And that was regarding Mike Moss. So there were several times when those comments were made, and I complained about them. That was when I was an assistant sales manager. I wasn't actually in a higher management position. And I went to my supervisors. When Ms. Jerome attempted to ignore Mr. Beaman's discriminatory hiring directives, he retaliated against her by criticizing her work performance and verbally abusing her. On approximately October 14, 2002, Mr. Beaman summarily terminated Ms. -4-

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Jerome's employment with the Midway Auto Team and ordered her to immediately leave the dealership. As Ms. Jerome was leaving the dealership, Mr. Beaman followed her and told her on the showroom floor of Midway Pontiac, "I want you to pack up your things. You're fired. This is the last time I'm ever going to see your face again, you worthless cunt." To make matters worse, Mr. Beaman continued to make discriminatory remarks in the workplace. As Ms. Jerome testified in her deposition: Question: During the entire time that you worked at the Midway Group, tell me when Mr. Beaman stopped making discriminatory remarks at work. When I was fired the second time.

Answer:

As Ms. Jerome further described Mr. Beaman's continuing harassment, "the fact [is] that I was still in his office and was still directing comments to me on a daily basis, critiquing who I was interviewing and my interviewing process."

See Plaintiff's Statement of Facts, ¶¶ 6-31, 44-45. Moreover, as demonstrated in Ms. Jerome's Statement of Facts, at paragraphs 9, 14, 18, and 19, Ms. Jerome complained of Mr. Beaman's discriminatory hiring directives to the General Manager of the Midway Auto Group, Mr. John Cleaves. However, there is absolutely no evidence that Defendants' engaged in any corrective measures in response to Ms. Jerome's complaints. To the contrary, John Cleaves did nothing to correct Mr. Beaman's discriminatory orders and Mr. Beaman continued to harass Ms. Jerome until she was ultimately fired for allegedly poor performance on December 6, 200. Plaintiff's Statement of Facts, ¶¶ 44-45. The inadequacy of Defendants' "response" to Ms. Jerome' complaint is illustrated by the Ninth Circuits opinion in Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995): Once an employer knows or should know of harassment, a remedial obligation kicks in. . . . That obligation will not be discharged until action­prompt, effective action­has been taken. Effectiveness will be measured by the twin purposes of ending the current harassment and deterring future harassment­by the same offender or others. If (1) no remedy is undertaken, or (2) the remedy is ineffectual, liability will attach. (Emphasis added). The Ninth Circuit's decision in Passantino v. Johnson & Johnson Co., 112 F.3d 439, 517 (9th Cir. 1999), is also instructive: -5-

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[A defendant] can escape [liability] only if it has undertaken sufficient good faith efforts at Title VII compliance. Although the purpose of Title VII is served by rewarding employers who adopt anti-discrimination policies, it would be undermined if those policies were not implemented, and were allowed instead to serve only as a device to allow to employers to escape [liability] damages for the discriminatory activities of their managerial employees. Thus, . . . , an employer must show that not only it has adopted an anti-discrimination policy, but that it has implemented that policy in good faith. (Emphasis added.) In this case, Defendants' have not adduced any evidence whatsoever that they either implemented or enforced their alleged anti-discrimination policy in good faith. Indeed, the evidence is overwhelmingly to the contrary. Based upon the undisputed facts that Defendants either knew or should have known that racial, sexual, and age discrimination pervaded the workplace and that nevertheless "no remedy was undertaken" to stop the harassment, Defendants have clearly not met their burden of establishing their affirmative defense under Ellerth and Faragher as a matter of law. B. The Court's ruling on Ms. Jerome's Gender Discrimination claim was correct and should be affirmed.

On October 14, 2002, Patrick Beaman unilaterally terminated Ms. Jerome's employment with the Midway Auto Team and ordered her to leave the dealership. See Plaintiff's Statement of Facts, ¶ 30. As Ms. Jerome was leaving the dealership, Mr. Beaman followed close behind her and told her on the showroom floor of Midway Pontiac, "I want you to pack up your things. You're fired. This is the last time I'm ever going to see your face again, you worthless cunt." Id. at ¶ 31. On the next day, Ms. Jerome met with Mr. Beaman and Midway General Manager, Mr. John Cleaves. At the meeting, Ms. Jerome specifically complained to Mr. Cleaves that Mr. Beaman had given her discriminatory hiring directives and that she was unable to do her job effectively as a result. Id. at ¶ 35. Although Mr. Cleaves finally decided to reinstate Ms. Jerome's employment with the dealership, Mr. Cleaves did not admonish Mr. Beaman in any way for either firing Ms. Jerome in the first place or giving her discriminatory hiring directives. Id. at ¶ 37. Instead, Mr. Cleaves proceeded to give Ms. Jerome advice on how to execute Mr. Beaman's directives. Id. at ¶ 38. -6-

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Moreover, Ms. Jerome continued to work in Mr. Beaman's office, and Mr. Beaman continued to supervise Ms. Jerome on a daily basis. Id. at ¶¶ 40-41. Specifically, as Ms. Jerome testified in her deposition: Question: Did Patrick Beaman stop supervising you in the workplace at Midway at any time during your tenure of employment there? No. Jack Colson, was he ever your supervisor? No. Did Jack Colson ever direct your day to day activities in the workplace at the Midway Group? No, that would have been Patrick Beaman.

Answer: Question: Answer: Question: Answer:

Id. In addition, almost immediately after Ms. Jerome complained about Mr. Beaman's discriminatory hiring directives to Mr. Cleaves, on October 15, 2002, Mr. Colson proceeded to criticize Ms. Jerome's work performance on November 4, 2002, November 20, 2002 and December 2, 2002. See Defendants' Statement of Facts, ¶ 11, 12, 13, 14, and 15. Before Ms. Jerome complained about Mr. Beaman, she had never been reprimanded by the dealership in any way. Id. at ¶ 43. In their Motion for Reconsideration, Defendants assert that because Mr. Colson allegedly made the decision to terminate Ms. Jerome based on alleged poor work performance--and Mr. Beaman and not Mr. Colson made the series of discriminatory remarks chronicled in Ms. Jerome's Statement of Facts--Defendants' termination of Ms. Jerome was nondiscriminatory. This assertion simply ignores the facts. As Ms. Jerome specifically testified in her deposition, although Defendants claim that John Cleaves made Jack Colson Ms. Jerome's direct supervisor, it is undisputed that Ms. Jerome continued to work in Mr. Beaman's office and that Mr. Beaman continued to supervise Ms. Jerome on a daily basis. Moreover, Ms. Jerome continued to labor under Mr. Beaman's discriminatory hiring policies. Id. at ¶¶ 44-45. As the Court correctly concluded in its Order of March 28, 2007 denying Defendants' -7-

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summary judgment on this issue: However, "any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder," and for that reason "summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the elusive factual question of intentional discrimination." Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) (internal quotation marks omitted). Though Plaintiff has not presented direct evidence that the Defendants' articulated reason is a pretext for unlawful discrimination, Plaintiff has presented specific instances of sexual discrimination and a discriminatory motive for firing her. The Court finds that it should be up to a jury to determine whether Defendants' motives for firing Plaintiff were discriminatory in nature. Accordingly, Defendants' Motion for Summary Judgment is denied as to Plaintiff's sex discrimination cause of action. Accordingly, construing the facts and inferences in favor of Ms. Jerome, Defendants are not entitled to summary judgment on this issue and their Motion for Reconsideration should be denied. Conclusion: For the foregoing reasons, Defendants' Motion for Reconsideration should be denied. Respectfully submitted this 7th day of June 2007. MONTOYA JIMENEZ A Professional Association

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Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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I hereby certify that on June 7, 2007, I electronically transmitted the foregoing 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: M. Brett Burns Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants 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

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