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

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff MONTOYA JIMENEZ A Professional Association Plaintiff hereby responds to Defendant's Motion for Summary Judgment and respectfully asks the Court to deny the Motion because multiple material factual disputes preclude summary judgment in favor of Defendant, and Defendant is not entitled to judgment as a matter of law. This Response is supported by the following Memorandum of Points and Authorities and Plaintiff's separate Statement of Facts. Respectfully submitted this 10th day of May 2006. Patrice Jerome, plaintiff, vs. Midway Holdings, Inc., Midway Auto Team, Midway Infiniti, Midway Nissan, Midway GMC, Midway Buick, Midway Pontiac, and Midway Chevrolet, defendants. No. CV 03-1913-PHX MHM Plaintiff's Response to Defendant's Motion for Summary Judgment (Oral Argument Requested) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PSOF ¶ 47. Answer: A.

MEMORANDUM OF POINTS AND AUTHORITIES Factual Background:

The sad chronicle of Patrice Jerome's tenure of employment at the Midway Auto Group is set forth in detail in her Statement of Facts in opposition to Midway's Motion for Summary Judgment. For purposes of brevity, that chronicle will not be repeated here. Suffice it to say, Ms. Jerome's immediate supervisor at Midway--Mr. Patrick Beaman­repeatedly ordered her to only "hire white males in their twenties with flat-guts." Plaintiff's Statement of Facts ("PSOF") ¶ 20. 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." PSOF ¶ 26. Similarly, Mr. Beaman also ordered Ms. Jerome not to hire single mothers because they were unreliable. PSOF ¶ 22. To compound the problem, Mr. Beaman also called Ms. Jerome a "worthless cunt" on the showroom floor of Midway Pontiac, called a Hispanic job applicant a "wetback who's too big for his shoes," and described a Hispanic employee of Midway Pontiac as an "overdressed spic in a cheap suit." PSOF ¶ 24, 25. Not surprisingly, Mr. Beaman's discriminatory misconduct had a profoundly negative impact on Ms. Jerome's work environment and work performance. As she testified in her deposition: Question: Is it your testimony that you were not able to recruit the requisite number of people because of the hiring directives you say you were subjected to? Correct.

Accordingly, Midway's Motion for Summary Judgment ignores the extensive evidence supporting Ms. Jerome's claims that was revealed in pretrial discovery. Based on that evidence, Midway's Motion for Summary Judgment should be denied. B. Standard of Review:

The Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (reversing summary judgment). As the court has observed: We require very little evidence to survive summary judgment in a -2-

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discrimination case, because the ultimate question is one that can be resolved only through a searching inquiry­one that is most appropriately conducted by the factfinder upon a full record. Besides an overall more particularized factual inquiry, a trial provides insight into motive, a critical issue in discrimination cases. The existence of an intent to discriminate may be difficult to discern in depositions complied for purposes of summary judgment, yet it may later be revealed in the face-to-face encounter of a full trial. Lam v. University of Hawaii, 40 F.3d 1551, 1564 (9th Cir. 1994) (reversing summary judgment). More recently, the Ninth Circuit once again noted that: In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses. McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). In light of this exacting standard, in considering a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge"). Accordingly, "the evidence of the [non-moving] party is to be believed," Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991) (reversing summary judgment), and the court is to "resolve all inferences in [the non-moving party's] favor." Warren v. City of Carlsbad, 58 F.3d 439, 441, 443 (9th Cir. 1996) (reversing summary judgment). Significantly, for purposes of this particular case, "any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986) (reversing summary judgment). See also, Anderson v. Reno, 190 F. 3d 930, 937 (9th Cir. 1999) ("To withstand summary judgment on [a] disparate treatment claim, [a plaintiff has] to produce very little evidence of discriminatory motive"). Moreover, the question of whether discriminatory harassment is sufficiently severe or pervasive to give rise to a hostile working environment is "quintessentially a question of fact." Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994).

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C. 1.

Legal Argument: Ms. Jerome complained of discrimination in the workplace

Midway first contends that Ms. Jerome failed to complain of discrimination in the workplace. This contention is refuted by even a cursory review of Ms. Jerome's deposition testimony. Ms. Jerome repeatedly testified that she complained of Patrick Beaman's discriminatory hiring directives to Midway General Manager John Cleaves. For example, Ms Jerome testified that she complained to Mr. Cleaves that: · she "was frustrated [that she] couldn't find enough 20-year old white guys with flat guts that wanted to sell cars"; · she "complained [to Mr. Cleaves] that [she] could not find enough 20year-old white guys who wanted to sell cars"; and · she "told ["Mr. Cleaves] that she was having difficulty with the hiring criteria, finding enough of the candidates as per Mr. Beaman. He wanted 20-year-old white guys with flat guts." See PSOF ¶ 35, Exhibit A, p. 175, lines 1-13, and p. 179, lines 12-19, and p. 15-18. Of course, these specific, repeated complaints to the General Manager of Midway were sufficient to put Midway on notice that Patrick Beaman was engaging in discriminatory conduct in the workplace. See, e.g., Howard v. Winter, 2006 WL 1172329, pp. 9-10 (4th Cir. May 4 2006) (complaining employee need not use technical terms in order to put an employer on notice of discrimination). 2. The discriminatory work environment at Midway hurt Ms. Jerome's job performance.

Midway next asserts that it had a nondiscriminatory reason for terminating Ms. Jerome notwithstanding her complaints of discrimination--namely, poor job performance. However, Midway ignores the fact that Patrick Beaman's discriminatory hiring directives were the cause of Ms. Jerome's performance problems. As Ms. Jerome testified in her deposition: Question: So were there times when you personally disqualified someone because this is what Mr. Beaman told you to look for or not to look for in an applicant. -4-

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PSOF ¶ 23.

Answer:

Not because--no. They would be in my office, and he would tell me to call the ASM to come and complete the interview, for me not to waste my time. And you would do that? I would have to. He's my supervisor. How many times did this happen? Often.

Question: Answer: Question: Answer:

PSOF ¶ 23. Similarly, Ms. Jerome also testified that: Question: Is it your testimony that you were not able to recruit the requisite number of people because of the hiring directives you say you were subjected to? Correct.

Answer:

Accordingly, Ms. Jerome has established a material factual dispute precluding summary judgment on the issue of whether she suffered an adverse employment action (i.e., termination) as a result of Mr. Beaman's discriminatory conduct. As the Ninth Circuit observed in Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994): Sexual or gender-based conduct which is abusive, humiliating or threatening violates Title VII even if it does not cause diagnosed psychological injuries to the victim. . . . It is enough, rather, if such hostile conduct pollutes the victim's workplace, making it more difficult to do her job, to take pride in her work, and to desire to stay in her position. (Emphasis added). Because Ms. Jerome was terminated as a result of Mr. Beaman's discriminatory conduct, she has obviously satisfied the Ninth Circuit's Steiner test under the facts of this case. 3. The discriminatory work environment at Midway was sufficiently severe or pervasive to be actionable.

When determining whether a hostile working environment exists, the court must consider "the totality of the circumstances." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). See also Harris v. Forklift Systems, Inc., 510 U.S. at 23 (1993) ("whether an environment is 'hostile' or 'abusive' can be determined only by looking at all of the circumstances"). Based on this standard, the determination of whether or not a working environment is "hostile" is necessarily a very factually intensive inquiry. -5-

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In considering the "totality of circumstances" in this case, this Court should aggregate any incidents of discrimination based on gender, race,1 religion, and age in order to determine if Ms. Jerome's working environment at Midway was objectively hostile. The Tenth Circuit's opinion in Hicks v. Gates Rubber Company, 833 F.2d 1406, 1416-1417 (10th Cir. 1987), is illustrative: The . . . question is whether, in determining the pervasiveness of the harassment against a plaintiff, a trial court may aggregate evidence of racial hostility with evidence of sexual hostility. We conclude that such aggregation is permissible. The purpose of Title VII is "the removal of artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications." Griggs v. Duke Power Co., 401 U.S. 424. Title VII prohibits an employer from discriminating against any individual because of race or because of sex. The use of the word 'or' evidences Congress' intent to prohibit employment discrimination based on any or all of the listed characteristics. . . . Hicks introduced evidence that her supervisor, Gleason, had made serious racial slurs against blacks. Such evidence should be considered on remand to determine whether there was a pervasive discriminatory atmosphere, combining the racial and sexual harassment evidence, so that a hostile work environment harassment claim may have been established by Hicks. Even though we have held that the evidence sufficiently supports the discrete finding that Gates did not maintain a work environment openly hostile to blacks, that evidence on racial treatment should be considered for this combined purpose here with the sexual harassment evidence. (Emphasis added.) Similarly, in Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999), the Sixth Circuit concluded that: We recognize that the overall harassment Hafford experienced may not have been based exclusively on his race but also on hostility to him as a "black Muslim." In at least one instance--Captain Darling's comment-the link between the racial and religious bias was explicit. The theory of a hostile environment claim is that the cumulative effect of ongoing harassment is abusive. It would not be right to require a judgment against Hafford if the sum of all of the harassment he experienced was abusive, but the incidents could be separated into several categories,

Midway asserts that Ms. Jerome did not exhaust her administrative remedies on her claim for racial discrimination under Title VII. However, Ms. Jerome has asserted her racial discrimination claim under 41 U.S.C. § 1981, which--unlike Title VII--does not require a litigant to "exhaust" administrative remedies with the EEOC. -6-

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with no one category containing enough incidents to amount to "pervasive" harassment. Although there is enough evidence of racial harassment for that claim to stand on its own, the district court should allow at trial for consideration of the possibility that the racial animus of Hafford's co-workers was augmented by their bias against his religion. (Emphasis added; citations omitted.) Likewise, in Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2nd Cir. 2000), the Second Circuit concluded that: Cruz's claim finds further support, moreover, in the interplay between the two forms of harassment. Given the evidence of both race-based and sex-based hostility, a jury could find that Bloom's racial harassment exacerbated the effect of his sexually threatening behavior and vice versa. Based on the evidence Cruz presented of both racial and sexual harassment, therefore, a jury reasonably could conclude that Bloom's behavior "alter[ed] the conditions of [her] employment" based on her race and/or her gender. Accordingly, we vacate the district court's grant of summary judgment on Cruz's hostile work environment claim. Finally, in Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir.1994), the Ninth Circuit concluded as follows: At least equally significant is the error committed by the [district] court in its separate treatment of race and sex discrimination. As other courts have recognized, where two bases for discrimination exist, they cannot be neatly reduced to distinct components. Rather than aiding the decisional process, the attempt to bisect a person's identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences. [Internal citations omitted.] As set forth in detail in Ms. Jerome's Statement of Facts, Ms. Jerome was subjected to discrimination based on gender, age, race, and religion while employed at Midway. Based on these authorities, this Court should consider the harassment in its totality and reject Midway's self-serving attempts to compartmentalize it. Similarly, although Ms. Jerome was not the "direct" victim of all of the discriminatory misconduct summarized above, circuit courts across the nation have nevertheless concluded that such behavior is evidence of a hostile work environment. For example, in Hull v. Gus Construction Co., Inc., 842 F.2d. 1010, 1015 (8th Cir. 1988), the Eighth Circuit concluded that "[a]lthough [the plaintiff] was not subjected to sexual propositions and offensive touching, evidence of sexual harassment directed at employees other than the plaintiff is relevant to show a hostile environment." Likewise, in Rodgers v. Western Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. 1993), the Seventh Circuit concluded that "the fact that the employer -7-

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never directly referred to the African-American plaintiff as a 'nigger' does not negate the plaintiff's hostile environment claim." Similarly, in Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2nd Cir. 2000), the Second Circuit concluded that in a hostile environment case, "[b]ecause the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim." Finally, in McGinest v. GTE Service Corp., 360 F.3d 1103, 1117 (9th Cir. 2004), our own Ninth Circuit joined its sister circuits in concluding that "if racial hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff." As the Supreme Court observed in Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993), "whether an environment is 'hostile' or 'abusive' can be determined only by looking at all of the circumstances." Under the "totality of circumstances" test, only a finder-of-fact can resolve Ms. Jerome' hostile environment claim at trial. 4. Midway is liable for Mr. Beaman's discriminatory conduct as a matter of law because Midway failed to take prompt and effective action in response to Ms. Jerome's complaints of discrimination.

Midway also failed to undertake prompt and effective remedial actions when Ms. Jerome complained of discrimination in the workplace at Midway. As demonstrated in Ms. Jerome's Statement of Facts, although Ms. Jerome complained of Mr. Beaman's discriminatory conduct to the Midway General Manager John Cleaves, there is absolutely no evidence that Midway engaged in any corrective measures in response to Ms. Jerome's complaints. To the contrary, John Cleave 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 work performance on December 6, 2002. The inadequacy of Midway's "response" to Ms. Jerome' complaint is illustrated by the Ninth Circuits opinion in Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991): We . . . believe that remedies should be reasonably calculated to end the harassment. An employer's remedy should persuade individual harassers to discontinue unlawful conduct. We do not think that all harassment warrants dismissal, rather, remedies should be assessed proportionately to the seriousness of the offense. Employers should -8-

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impose sufficient penalties to assure a workplace free from harassment. In essence, then, we think that the reasonableness of an employer's remedy will depend on its ability to stop the harassment by the person who engaged in harassment. In evaluating the adequacy of the remedy, the court may also take into account the remedy's ability to persuade potential harassers from unlawful conduct. Indeed, meting out punishments that do not take into account the need to maintain a harassment free working environment may subject the employer to suit by the EEOC. (Internal quotation marks and citations omitted). The Ninth Circuit's opinion in Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995), is also instructive: 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). Based upon the undisputed fact that "no remedy was undertaken" in this case, Midway is liable for Mr. Beaman's misconduct as a matter of law. 5. Ms. Jerome has mitigated her damages.

As Midway concedes in its Motion for Summary Judgment, Ms. Jerome has repeatedly sought and held gainful employment after she was terminated by Midway. See Defendant's Motion for Summary Judgment P. 17, lines 3-10. Although Ms. Jerome has not been able to earn the income that she earned at Midway, the fact that she sought and held gainful employment demonstrates that she is a resourceful, diligent employee. Under the present circumstance, the finder-of-fact (not the Court) must determine whether Ms. Jerome's economic losses are a result of Midway's discriminatory conduct of her own lack of diligence. D. Conclusion:

For the foregoing reasons, Defendants' Motion for Summary Judgment should be denied. Respectfully submitted this 10th day of May 2006. MONTOYA JIMENEZ A Professional Association

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s/ Stephen G. Montoya 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 May 10, 2006, 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: Stephanie K. Osteen Akin Gump Strauss Hauer & Feld LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201 Attorneys for Defendants

I hereby certify that on May 11, 2006, I served the foregoing document by hand-delivery to the following: 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/ Stephen G. Montoya

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