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

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

M. Brett Burns (admitted pro hac vice) [email protected] Stephanie K. Osteen (admitted pro hac vice) [email protected] AKIN GUMP STRAUSS HAUER & FELD LLP 1700 Pacific Avenue, Ste. 4100 Dallas, Texas 75201 (214) 969-2800 facsimile (214) 969-4343 Tricia Schafer (018748) MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.C. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 (602) 889-5341 facsimile (602) 285-5100 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Patrice Jerome, Plaintiff, v. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT CV03-1913-PHX-MHM

Midway Holdings, Inc. et al., Defendants.

Case 2:03-cv-01913-MHM

Document 65

Filed 03/31/2006

Page 1 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 and against whom she makes no complaint in this lawsuit, and who ultimately terminated 17 her for "lack of performance." 18 19 20 21 22 23 24 25 26
1 Case 2:03-cv-01913-MHM Document 65 Filed 03/31/2006 Page 2 of 20

Defendants Midway Holdings, Inc. and Midway Chevrolet, Inc. (collectively "Midway Auto Team") submit this Motion for Summary Judgment and Memorandum in Support, ask the Court to grant summary judgment on all claims asserted by Plaintiff Patrice Jerome in this lawsuit, and respectfully show the Court as follows: I. INTRODUCTION Plaintiff was employed by Midway Auto Team in three different positions for a total of eight months in 2002. Her last position was a recruiter for Midway Auto Team. Her employment was terminated for poor performance after she received numerous verbal and written reprimands for a variety of work problems, including, without limitation, tardiness, missing work, failing to maintain an appropriate sales staff for the Midway Auto Team dealerships, failing to keep accurate interview logs, failing to answer and return more than 140 telephone calls from job candidates responding to a paid Company advertisement, and other things. These work problems were both frequent and welldocumented. Plaintiff was given five written reprimands during the final three months of her employment, including four by new supervisor Jack Colson, who she admittedly liked

Against this background of written and verbal reprimands, Plaintiff belatedly claims that her termination was not because of poor performance, but due to retaliation, sex discrimination, and age discrimination, all apparently arising from conflicts she had with former coworker Patrick Beaman. These claims are completely lacking in merit for several independent reasons. Plaintiff cannot establish a prima facie case for her retaliation or discrimination claims. The decision to terminate Plaintiff's employment for poor work performance was a legitimate and nondiscriminatory reason and is evidenced by numerous written and verbal reprimands from different supervisors, any one of which

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

is a legitimate and nondiscriminatory reason for discharge in and of itself. There is no competent evidence of pretext, either ­ Mr. Colson, the supervisor who terminated Plaintiff's employment, had no knowledge of any alleged discrimination or protected activity (Plaintiff admittedly never told him and the supervisor testified under oath that no one else did, either), and Plaintiff does not even allege, much less establish with competent evidence, that Mr. Colson ever did or said anything inappropriate or that could possibly demonstrate sexist or ageist animus. Plaintiff also belatedly asserts claims for sex harassment and race harassment. The claims are based on two inappropriate sexual comments and three inappropriate racial comments concerning persons of other races she allegedly overheard during her employment. Neither rises to the level of an actionable sexually or racially hostile work environment claim. Both harassment claims also fail because Plaintiff did not complain of any inappropriate comments to management (except for one sexual remark by a coworker on her first day of employment that was immediately remedied to her satisfaction) and because Plaintiff made no sex or race harassment complaint whatsoever on the Company's 1-800 Employee Line, despite admittedly knowing these complaint avenues were available to her, being trained on them, and even training others on them in her role as recruiter.1 Finally, Plaintiff's claims for economic damages, which have been the subject of repeated discovery dispute hearings before the Court, should be dismissed on summary judgment because Plaintiff failed to mitigate her damages. Rather than attempt to obtain comparable employment in the automobile sales industry after her employment with Midway Auto team ended, and despite undisputed evidence that comparable jobs were

There are additional independent legal obstacles to Plaintiff's race harassment claim, including that Plaintiff failed to exhaust administrative remedies to pursue the claim, and that Plaintiff lacks standing to complain of harassment based solely on alleged comments concerning other races.

1

Case 2:03-cv-01913-MHM

Document 65

2 Filed 03/31/2006

Page 3 of 20

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

available, Plaintiff instead chose to pursue brief stints of work in pharmaceutical research, mortgage sales, and interior design, among others, most separated by several months of unemployment. The law does not permit economic damages to be awarded under these circumstances. By and through these actions, Plaintiff failed to mitigate her economic damages as a matter of law. II. FACTS RELEVANT TO THIS MOTION This Motion is supported by Defendants' Statement of Undisputed Facts, filed contemporaneously herewith, and incorporated by reference as if fully set forth herein. III. ARGUMENT A. Plaintiff's Retaliation Claim Fails As A Matter Of Law. 1. Plaintiff did not engage in protected activity.

To make a prima facie showing of retaliation, Plaintiff must show, among other things, that she engaged in protected activity. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002); EEOC v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994, 1005 (9th Cir. 2002). Plaintiff cannot make that required prima facie showing here. Plaintiff's retaliation claim is based on her allegation that coworker Patrick Beaman once showed her a photograph of a successful job applicant and told her that she should hire "flat gut, 20-year old white males" like the person in the photograph.2 (Ex. A, Jerome Depo. 260:21-261:3.) She claims to have engaged in protected opposition activity when, weeks or months later, during a counseling meeting with Midway Auto Team General Manager John Cleaves, she allegedly commented that she "could not find enough 20-year-old white guys who wanted to sell cars." (Ex. A, Jerome Depo. 179:8-180:3; Ex.
Defendant denies this allegation but concedes that it is appropriate to assume for purposes of this Motion that the statement was made. However, it is notable that Plaintiff has changed her story ­ she told the EEOC twice that she was told to hire "twenty (20) year old, flat gut men" (see Ex. C, EEOC Charge and Ex. D, Charge Questionnaire), and it was only after she later retained
2

Case 2:03-cv-01913-MHM

Document 65

3 Filed 03/31/2006

Page 4 of 20

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

B, Cleaves Depo. 12:17-25.) Even assuming that this statement was made, there is no evidence that Mr. Cleaves understood what Plaintiff meant by this cryptic comment, much less understood her to be complaining of a discriminatory hiring directive, as opposed to merely expressing frustration that she would be unable to recruit enough candidates to staff her new hire classes. The alleged comment is even more confusing considering the fact that Plaintiff admits she continued to recruit ­and Midway Auto Team continued to hire ­ salespersons of both sexes who were non-white and older than twenty. (Ex. A, Jerome Depo. 307:8-308:8; Ex. E, Colson Depo. 10:18-12:3.) Plaintiff's vague comment to Mr. Cleaves does not constitute "protected activity" under Title VII, which prohibits an employer from discriminating against an employee "because [she] has opposed any practice made an unlawful employment practice by this subchapter . . . ." Luce, Forward, Hamilton, & Scripps, 303 F.3d at 1005 n.7 (citing 42 U.S.C. § 2000e-3); see also Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 823 (S.D. Tex 1998) (granting summary judgment because plaintiff's vague complaint failed to apprise her employer of any particular activity she perceived as discriminatory). The comment simply does not meet the threshold requirement of communicating opposition to unlawful behavior. See Jowers v. Lakeside Family and Children's Servs., No. 03 Civ. 8730 (LMS), 2005 WL 3134019, at *5 (S.D.N.Y. Nov. 22, 2005) (communications must be sufficiently clear so that "the employer must have understood, or reasonably understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII"); Dupont-Lauren, 994 F. Supp. at 823 (plaintiff did not engage in protected activity where she failed to put her employer on notice of any particular activity she perceived as discriminatory). Merely complaining of a professed inability to recruit enough candidates without mentioning "discrimination" or "unlawful" falls short of these
counsel and filed this lawsuit that she added the word "white" to the alleged comment and claimed the directive was racially discriminatory. (See Complaint, Docket Entry No. 1.)

Case 2:03-cv-01913-MHM

Document 65

4 Filed 03/31/2006

Page 5 of 20

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

standards. See Jowers, 2005 WL 3134019, at *5 (finding employee did not engage in protected activity where he did not even mention the word discrimination and instead complained about his supervisor's critique of his performance); Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (no protected activity where employee failed to articulate an alleged Title VII discriminatory practice and employer had no way to infer existence of discrimination from employee's comment); Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995) (employee's written letter complaining of unfair treatment but not mentioning discrimination did not constitute "protected activity"); Alack v. Beau Rivage Resorts, Inc., 286 F. Supp. 2d 771, 774-75 (S.D. Miss. 2003) (no protected activity where employee refused to provide written statement to employer and did not state such refusal was in opposition to employment practice). There is no causal connection between Plaintiff's alleged protected activity and Plaintiff's termination. Another essential element of a prima facie case of retaliation is "but for" causation ­ that is, Plaintiff must show that the complained of adverse employment action would not have occurred but for her participation in protected activity. Villiarimo, 281 F.3d at 1065. She cannot make that showing here because there is no evidence that Mr. Colson, the supervisor who terminated Plaintiff's employment, had knowledge that Plaintiff ever engaged in protected activity or that she believed Mr. Beaman had given her a discriminatory hiring instruction. (Ex. E, Colson Depo. 29:24-30:1; 39:19-40:5; Ex. A, Jerome Depo. 230:15-25.) Plaintiff's inability to establish a causal connection is fatal to her retaliation claim. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (decision maker's awareness of an employee's protected activity is necessary to establish a causal link between that activity and an alleged retaliatory action); Chaney v. New Orleans Pub. Fac. Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (affirming summary 2.

Case 2:03-cv-01913-MHM

Document 65

5 Filed 03/31/2006

Page 6 of 20

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

judgment because there was no evidence that the employer had knowledge of any protected activity at the time the adverse employment decision was made); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994) (same).3 3. Plaintiff was terminated for legitimate non-retaliatory reasons ­ repeated poor performance ­ and there is no evidence of pretext.

Even if Plaintiff could establish a prima facie case of retaliation, which she cannot, her claim of retaliation fails because she cannot show that the reason for her termination was pretextual. Villiarimo, 281 F.3d at 1062-63. Plaintiff was terminated for her repeated extremely poor performance, not retaliation or discrimination. During the final three months of her employment, Plaintiff was informed that her employment would be terminated after she failed to show up to work on a Friday and then skipped a Company job fair on Saturday (the termination was later revoked), placed on probationary status with a new supervisor (who she admittedly liked and against whom she makes no complaint in this lawsuit), and given repeated verbal and written reprimands for various work problems by the same new supervisor, any one of which alone would have been sufficient for termination. (See, e.g., Ex. F, October 15, 2002 Inter-Office Memorandum (no-call/no-show for work on Friday and Saturday); Ex. G, November 4, 2002 Memorandum (failure to recruit the required number of candidates for the salesperson job); Ex. H, November 20, 2002 Memorandum (arriving late to training classes and producing insufficient salesperson candidates); Ex. I, December 2, 2002 Inter-Office Memorandum (insufficient recruit quality and failing to answer calls from 148 candidates who called Plaintiff in response to a paid job advertisement ­ Plaintiff simply let the
Further, even if there was competent evidence that Mr. Colson was somehow aware of Plaintiff's alleged opposition statement to Mr. Cleaves (allegedly made in a meeting that Mr. Colson did not even attend), as discussed below, Plaintiff's employment could still be terminated lawfully for poor performance. Vasquez v. County of Los Angeles, 349 F.3d 634, 641, n.9 (9th
3

Case 2:03-cv-01913-MHM

Document 65

6 Filed 03/31/2006

Page 7 of 20

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

recruiting responses roll to her voice mail).) After the telephone/no-answer debacle, in the final December 2, 2002 write-up, among other things, Mr. Colson commented that "[i]t is becoming obvious that you are either not committed to performing this job or unable to, or perhaps, some of both," stated clearly that Plaintiff's "continued employment is at risk," and noted "[o]ur expectations have absolutely not been met." Four days later, Mr. Colson terminated Plaintiff for "lack of performance." (See Ex. J, Personnel Change of Status Notice.) Upon hearing the news, Plaintiff did not protest, complain of retaliation or discrimination, or even express disagreement ­ she later stated that she felt "relieved" by the decision. (Ex. A, Jerome Depo. 231:5-13.) These numerous well-documented performance problems were legitimate reasons for Mr. Colson's decision to terminate Plaintiff's employment and there is no evidence of pretext to support a claim for retaliation or discrimination.4 See Villiarimo, 281 F.2d at 1065 n.10 (affirming summary judgment for employer on retaliation claim where plaintiff was terminated because of his poor performance); Aragon v. Republic Silver State Disposal, 292 F.3d 654, 661-62 (9th Cir. 2002) (affirming summary judgment where employee could not show his poor performance was a pretext for his termination); Messick v. Sears, Roebuck and Co., 89 F. Supp. 2d 848, 851 (W.D. Tex. 2000) (poor attendance is a legitimate non-discriminatory reason to terminate an employee). B. Plaintiff's Sex And Age Discrimination Claims Fail As A Matter Of Law. To establish a prima facie case for disparate treatment, Plaintiff must show, among

Cir. 2003) ("[N]o nexus exists when the decision maker makes an independent and legitimate decision to discipline the plaintiff."). 4 To be clear, despite Plaintiff's dislike of Mr. Beaman, it was Mr. Colson, not Mr. Beaman, who made the decision to terminate Plaintiff's employment. (Ex. E, Colson Depo. 29:24-30:1; 39:1940:5) And when it came to Mr. Colson, she admitted that she liked him, thought that he was nice guy, never heard him make any inappropriate remarks or comments or saw him act inappropriately, and that he often tried to help her with her work. (Ex. A, Jerome Depo. 200:416; 209:13-17.)

Case 2:03-cv-01913-MHM

Document 65

7 Filed 03/31/2006

Page 8 of 20

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

other things, that she was performing according to her employer's legitimate expectations, she suffered an adverse employment action, and other employees with qualifications similar to her own were treated more favorably. See Villiarmo, 281 F.2d at 1062; Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001). In the present case, there is no evidence that other employees with similar qualifications were treated more favorably. When asked in her deposition to identify similarly-situated counterparts who received more favorable treatment than she did, Plaintiff named Bob Carter (her predecessor) and John Ferguson (a recruiting director at Midway Chevrolet while she was a recruiting director at Midway Auto Team). (Ex. A, Jerome Depo. 274:15-275:8; 283:12-15.) However, it is undisputed that Mr. Carter was terminated for performance problems, including failing to recruit an adequate number of individuals (Ex. E, Colson Depo. 35:212), and there is no evidence that Mr. Ferguson had any job performance problems, much less the many documented job problems Plaintiff experienced during her employment. (Ex. A, Jerome Depo. 283:24-284:1.) Moreover, even assuming Plaintiff could establish a prima facie case, Plaintiff was terminated by Mr. Colson for legitimate, nondiscriminatory reasons, and there is no evidence that the reasons are pretextual. See Section A(3) of this Motion, supra. C. Plaintiff's Sex Harassment Claim Fails As A Matter of Law. 1. The alleged sex harassment ­ two isolated inappropriate comments ­ does not rise to the level of a hostile work environment.

An actionable hostile work environment claim requires proof that the workplace was "permeated with discriminatory intimidation, ridicule, insult . . . sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Manatt v. Bank of Am., NA, 339 F.3d 792, 798, (9th Cir. 2003) (conduct must "so pollute the workplace that it altered the conditions of the [the plaintiff's] employment"). Courts

Case 2:03-cv-01913-MHM

Document 65

8 Filed 03/31/2006

Page 9 of 20

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

require such a high standard because Title VII is not meant to be a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Manatt, 339 F.3d at 798 ("Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory charges in the terms and conditions of employment."). "Title VII does not impose a legal duty to purify the language of the workplace of profanity." Williams v. Arrow Chevrolet, Inc., 121 Fed. Appx. 148, 2005 U.S. App. LEXIS 1038 (7th Cir. 2005) (citation omitted). Instead, Title VII only seeks to eradicate environments that are "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982). "Conduct must be extreme to amount to a change in the terms and conditions of employment." Kortan v. Cal Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000). Thus, to be actionable, the environment must be both objectively and subjectively hostile or abusive, i.e., one that a reasonable person would find hostile and one that the victim in fact perceived to be so based on a number of factors including the frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id.; see also Vasquez v. County of Los Angeles, 349 F.3d 634, 642-43 (9th Cir. 2004) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)). The alleged acts of sexual harassment identified by Plaintiff at deposition consist of two incidents of inappropriate name-calling. Early in her employment, Plaintiff alleges that coworker Mike Moss greeted her by asking her how a "cunt like her" got a job at Midway Auto Team. (Ex. A, Jerome Depo. 94:9-21.) Three months before her employment ended, Plaintiff alleges that she overheard Mr. Beaman mutter "worthless

Case 2:03-cv-01913-MHM

Document 65

9 Filed 03/31/2006

Page 10 of 20

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

cunt" while following her on the showroom floor out of the dealership after an argument over her failing to show up for work. (Ex. A, Jerome Depo. 158:25-159:22.)5 Any incidents of inappropriate name-calling are regrettable, but two such incidents occurring over eight months of employment, even if true, are simply insufficient to state a viable claim for sex harassment. Other cases with far more serious allegations, including physical touching, have reached similar conclusions. See, e.g., Lappin v. Laidlaw Transit Inc., 179 F. Supp. 2d 1111, 1120-1121 (N.D. Cal. 2001) (allegations of coworker's numerous comments on employee's attractiveness or appearance and anatomy of coworkers, calling plaintiff sexist names several times, and puckering lips and wiggling tongues at plaintiff insufficient to rise to the level of a hostile work environment); accord Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir. 1997) (allegations that former supervisor made a variety of inappropriate comments and put his arm around plaintiff and attempted to look down her dress did not create a hostile or abusive work environment); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995) (stream of vulgar criticisms, threats, and highly offensive name calling was not severe or pervasive enough to support a hostile work environment when considering totality of the circumstances); Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir. 2000) (repeated touching and comments not sufficient to show hostile work environment); Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995) (nine instances of offensive behavior, including one instance of simulated sex, insufficient to establish a hostile work environment).
Midway Auto Team denies these allegation but assumes the truth of them for purposes of this Motion. Regarding the allegation against Mr. Moss, Plaintiff reported this incident to Rodney Berry (a former Nissan Assistant Sales Manager ) and Ken Pfifer (her direct supervisor) (Ex. A, Jerome Depo. 98:3-23; 99:13-21), who addressed her complaint against Mr. Moss, and she never had another problem with Mr. Moss. (Ex. A, Jerome Depo. 100:15-19; 101:15-16.) Plaintiff admits that Midway Auto team's response to her complaint was reasonable and resolved her concerns. See id. Plaintiff admittedly never reported the allegation against Mr. Beaman, despite
5

Case 2:03-cv-01913-MHM

Document 65

10 Filed 03/31/2006

Page 11 of 20

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

2.

The alleged harassment is not actionable because Plaintiff failed to report it.

The United States Supreme Court has provided for a complete affirmative defense to harassment claims involving alleged harassment not involving a "tangible employment action against an employee where: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 529 U.S. at 807. In sum, Midway Auto Team can only be held liable for alleged harassment if it failed to take remedial action after Plaintiff complained of harassment.6 Faragher, 524 U.S. at 789; Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) ("an employer cannot be held liable for misconduct of which it is unaware"); Steiner v. Showboat Oper. Co., 25 F.3d 1459, 1462-63 (9th Cir. 1994) (same); Lappin v. Laidlaw Transit, Inc., 179 F. Supp. 2d 1111, 1121 (N.D. Cal. 2001) (same). Midway Auto Team has written policies that expressly prohibit discrimination and harassment, and offers its employees two different avenues to report harassment and discrimination. (Ex. A, Jerome Depo. 54:17-25.) Employees may report alleged harassment to supervisors, up to and including the General Manager, or may report alleged harassment on an Employee Report Line. Plaintiff was aware of these policies and procedures. She signed forms acknowledging her awareness of the policy and received training on the policy (Ex. A, Jerome Depo. 55:10-56:4; 58:5-9), and as a
meeting with Mr. Cleaves the following workday to discuss her continued employment and probationary status. (Ex. A, Jerome Depo. 170:21-24) 6 "An employer's liability for harassing conduct is evaluated differently when the harasser is a supervisor as opposed to a coworker." McGinest v. GTE Service Corp., 360 F.3d 1103, 1119 (9th Cir. 2004). If the alleged harasser is a supervisor, the employer is vicariously liable for said harassment, although the employer may raise the Faragher/Ellerth affirmative defense. Id. "If, however, the harasser is merely a coworker, the plaintiff must prove that the employer knew or

Case 2:03-cv-01913-MHM

Document 65

11 Filed 03/31/2006

Page 12 of 20

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

recruiter with responsibility for conducting orientation sessions for new hires, instructed new hires on the employee hotline and distributed flyers with the hotline number and instructions on its use. (Ex. A, Jerome Depo. 62:1-10.)7 It is undisputed that Plaintiff never complained, however, either through the Employee Report Line or directly to management, about Mr. Beaman's alleged inappropriate comment to her. (Ex. A, Jerome Depo. 170:21-24). This admitted failure to complain is fatal to her claim, and Midway Auto team cannot be held liable for this conduct as a matter of law. Swenson, 271 F.3d at 1192; Ellerth, 524 U.S. at 764-65. 8 D. Plaintiff's Race Harassment Claim Fails as a Matter of Law. 1. Plaintiff failed to exhaust administrative remedies with respect to her race harassment claim.

Plaintiff's claim of race harassment fail as a matter of law because she failed to exhaust administrative remedies for it. Plaintiffs must "exhaust their administrative remedies before seeking judicial relief from discriminatory action," and failure to do so precludes the presentation of that claim in federal court. Brown v. Puget Sound Elec. App. & Train. Trust, 732 F.2d 726, 729-30 (9th Cir. 1984) (plaintiff barred from presenting disparate treatment claim where charge alleged only disparate impact claim); see also Lowe v. City of Monrovia, 775 F.2d 998, 1003 (9th Cir. 1985), amended by, 784 F.2d
should have known of the harassment but did not take adequate steps to address it." Id. 7 During her employment, Plaintiff even used both reporting avenues herself. She complained to Rod Berry and Ken Pfifer about Mike Moss's alleged inappropriate comment (Ex. A, Jerome Depo. 98:3-23; 99:13-21), and admitted that she was satisfied with their response and felt that it had been handled reasonably. (Ex. A, Jerome Depo. 100:15-19; 101:15-16.) Plaintiff once used the Employee Report Line when she was told that she was being terminated for job abandonment to inform them that "she was confused about it" (Ex. A, Jerome Depo. 169:25-170:20), and the report led to a meeting with Mr. Cleaves where the termination was rescinded. 8 To the extent that Plaintiff may attempt to argue that Mr. Beaman was her supervisor at the time the comment was made, Midway Auto Team would still prevail on this affirmative defense because it is undisputed that Plaintiff never complained about the alleged name-calling incident,

Case 2:03-cv-01913-MHM

Document 65

12 Filed 03/31/2006

Page 13 of 20

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

1407 (1986) (plaintiff barred from bring sex discrimination claim where charge related only to race). Plaintiff's charge did not check the "race" box on her charge, nor did the charge contain any information whatsoever indicating that she believed she was harassed because of her race. (See Ex. C, EEOC Charge.) As Plaintiff did not afford the EEOC an opportunity to investigate and conciliate that charge, the claim must be dismissed as a matter of law. Brown, 732 F.2d at 730. 2. The alleged race harassment ­ consisting of three isolated comments directed to persons of other races ­ does not rise to the level of a hostile work environment.

The alleged acts of racial harassment identified by Plaintiff (a Caucasian female) at her deposition consist of three incidents of overhearing three racial remarks directed to persons of other races.9 Again, any incidents of inappropriate behavior such as this are regrettable, but three such incidents occurring over eight months of employment are simply not sufficient to state a viable claim for race harassment under applicable legal standards. See Section III(C)(1) of this Motion, supra.10 Summary judgment also is warranted because the incidents about which Plaintiff complains are not even related to Plaintiff's race. See Kortan, 5 F. Supp. 2d at 850 (granting summary judgment on racial harassment claim because the offensive comments were directed at "bystanders" of a different race than plaintiff and "[i]nsensitive and boorish remarks not motivated by the plaintiff's race are not actionable."); Patee v. Pac.
either to Mr. Cleaves or on the Company's 1-800 employee hotline. See Ellerth, 524 U.S. at 76465. 9 Plaintiff alleges that she once overheard Mr. Beaman refer to a male, Hispanic job applicant as a "wetback who's too big for his shoes" (Ex. A, Jerome Depo. 287:12-16.), that she once overheard Mr. Beaman refer to a Hispanic employee as an "overdressed spick in a cheap suit" (Ex. A, Jerome Depo. 288:23-289:4), and that she overheard coworker Jerry Schwelling use the term "nigger." (Ex. A, Jerome Depo. 82:21-83:1.) 10 Again, other courts regularly find that more egregious comments are insufficient to support a harassment claim as a matter of law. See, e.g., Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982) Hervey v. Bodycote Lindberg Corp., 2004 U.S. Dist. LEXIS 2826 (D. Minn. 2004).

Case 2:03-cv-01913-MHM

Document 65

13 Filed 03/31/2006

Page 14 of 20

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

NW Bell Tele. Co., 803 F.2d 476, 478 (9th Cir. 1986) (Ninth Circuit authority requires conclusion that "male workers cannot assert the right of their female co-workers to be free from discrimination based on their sex"); accord Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756 (8th Cir. 2004) (affirming summary judgment where racial slurs were directed at third parties, not plaintiff, and many of the comments were merely overheard by the plaintiff); Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180 (7th Cir. 1998) (dismissing racial harassment claim by Caucasian employee alleging that minority coworkers and clients were mistreated because the plaintiff's claim "is not that white women were harassed on account of their race or sex, but that persons of any race or sex who were opposed to discrimination felt uncomfortable. We have never recognized this as a valid theory of discrimination under Title VII."); Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 901-902 (M.D.N.C. 2005) (granting summary judgment on race harassment claims because "although Plaintiff testifies to feeling embarrassed by what he perceived to be discriminatory treatment of customers, he does not show that this is evidence that he was being harassed based upon his race"); Tilmon v. Dillard's Dep't Stores, 58 F. Supp. 2d 1276, 1285-86 (D. Kan. 1999) (granting summary judgment on racial harassment claim based in part on allegations that plaintiff believed African American customers were more closely monitored by store security personnel). 3. Plaintiff lacks standing to assert a racial harassment claim premised on derogatory racial comments concerning persons of other races.

Plaintiff's race harassment claim also fails as a matter of law for the independent reason that Plaintiff, a Caucasian female, lacks standing to assert a discrimination or harassment claim premised on allegations of derogatory comments about persons of Hispanic or African-American race. In Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1180 (7th Cir. 1998), the Seventh Circuit addressed this precise issue under Title VII and Section 1981 and held that a white plaintiff could not recover for derogatory comments

Case 2:03-cv-01913-MHM

Document 65

14 Filed 03/31/2006

Page 15 of 20

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

concerning African Americans and homosexuals. As the Seventh Circuit explained: [The plaintiff's] claim is not that white women were harassed on account of their race or sex, but that persons of any race or sex who were opposed to discrimination felt uncomfortable. We have never recognized this as a valid theory of discrimination under Title VII, and it is hard to see how it could be reconciled with the proposition that laws must be enforced by the victims (or by public prosecutors) rather than by third parties discomfited by the violations. If unease on observing wrongs perpetrated against others were enough to support litigation, all doctrines of standing and justiciability would be out the window. . . . The directly injured persons, rather than bystanders appalled to learn that discrimination is ongoing, are the proper plaintiffs in situations of this kind. Bermudez, 138 F.3d at 1180, 1181 (emphasis in original); see also, e.g., Childress v. City of Richmond, Va., 134 F.3d 1205 (4th Cir. 1998) (equally divided en banc court and concurring opinion) (affirming decision of district court that white male police officers lacked standing under Title VII to assert hostile work environment claim arising from allegedly disparaging remarks made to and about female and Black police officers); Patee, 803 F.2d at 478 (Ninth Circuit authority requires conclusion that "male workers cannot assert the right of their female co-workers to be free from discrimination based on their sex"); see also Sidari v. Orleans County, 174 F.R.D. 275, 283-84 (W.D.N.Y. 1996) (striking all allegations in complaint relating to alleged harassment of Black jail inmates by Italian-Catholic corrections officer who only had standing to assert national origin and religious discrimination in employment claims); Lyman v. Nabil's Inc., 903 F. Supp. 1443, 1447 (D. Kan. 1995) (males not harassed by actions directed towards females). 4. The alleged race harassment is not actionable because Plaintiff failed to report it.

Plaintiff's race harassment claim also fails as a matter of law because Plaintiff never complained about any alleged racial comments to anyone. (Ex. A, Jerome Depo. 299:16-23; 300:9-13.) This admitted failure to complain is fatal to her claim. Swenson,

Case 2:03-cv-01913-MHM

Document 65

15 Filed 03/31/2006

Page 16 of 20

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

271 F.3d at 1192; Ellerth, 524 U.S. at 764-65; Section III(C)(2) of this Motion, supra. E. Plaintiff Claim For Economic Damages Fails As A Matter Of Law. "Title VII requires the claimant to use reasonable diligence in finding other suitable employment." Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1994) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)). In the present case, after her employment with Midway Auto team ended, Plaintiff failed to mitigate any alleged damages she suffered by seeking comparable employment. There were "substantially equivalent jobs available, which [she] could have obtained, and [she] failed to use reasonable diligence in seeking one." Odima, 53 F.3d at 1497 (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir. 1994)). Midway Auto Team should not be held liable for any salary losses Plaintiff voluntarily incurred by failing to make reasonable efforts to secure positions of substantially equivalent employment by removing herself from the market for such employment due to personal reasons. See Meyer v. United Air Lines, Inc. 950 F. Supp. 874, 876-78 (N.D. Ill. 1997) (summary judgment granted on lost wages claim where a plaintiff made no attempt to find substantially equivalent employment and instead, for personal reasons, accepted a part-time position with a onethird reduction in pay); Laffey v. Independent Sch. Dist. No. 625, 806 F. Supp. 1390, 1399, 1406 (D. Minn. 1992) (discharged teacher who purposefully chose not to seek out comparable employment and instead started unsuccessful brochure and business card business failed to exercise reasonable diligence to secure substantially equivalent employment). At the time of her termination in December 2002, there were several jobs at car dealerships in the Phoenix area that were "substantially equivalent" to the positions Plaintiff held at Midway. (See Ex. K, Aff. of Dr. Mitchell ¶ 6.) Some of the positions advertised in the Arizona Republic listed salaries ranging from $35,000 to $80,000.

Case 2:03-cv-01913-MHM

Document 65

16 Filed 03/31/2006

Page 17 of 20

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

However, instead of applying for any of these positions, Plaintiff decided to work in the following positions: · An independent contractor for three months with Western Pacific, where she earned $1,035 and then quit (See Ex. K, Aff. of Dr. Mitchell ¶ 7; Ex. A, Jerome Depo. 341:1-16); · A position with a pharmaceutical research company where she earned $2,700 (Ex. K, Aff. of Dr. Mitchell ¶ 7); · Positions with four different mortgage companies: Prime Mortgage (where she earned $15,719), Concord Mortgage (where she earned $1,500), Homeowners Mortgagee (where she earned between $3,000 and $4,000), and United Financial (where she earned $800) (See Ex. K, Aff. of Dr. Mitchell ¶¶ 8-9); and · Doing interior design work for her sister, where she earned $3,000 (See Ex. K, Aff. of Dr. Mitchell ¶ 9). Plaintiff's personal decision to forego applying for jobs where she could have earned close to the same salary she had at Midway Auto Team and instead choosing to work at jobs in completely unrelated fields earning substantially less is a failure to mitigate damages. See Meyer, 907 F. Supp. at 876-78 (finding failure to mitigate where plaintiff accepted a part-time position with one-third reduction in pay, without attempting to seek substantially equivalent employment); Humphresys v. Medical Towers, Ltd., 893 F. Supp. 672, 690 (S.D. Tex. 1995) (discharged property manager "not entitled to back pay for any time period in which she was not actively seeking employment as a property manager"). Midway Auto team should not be liable for any economic damages that are not the result of discrimination but instead are the result of Plaintiff's personal decisions that resulted in losses willfully incurred by her. IV. CONCLUSION

For each of the reasons, Defendants are entitled to summary judgment on Plaintiff's claims as a matter of law. DATED this 31st day of March, 2006.

Case 2:03-cv-01913-MHM

Document 65

17 Filed 03/31/2006

Page 18 of 20

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

Respectfully submitted, /s/ Stephanie K. Osteen M. Brett Burns (admitted pro hac vice) Stephanie K. Osteen (admitted pro hac vice) 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4618 (214) 969-2800 facsimile (214) 969-4343 Tricia Schafer MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.C. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 (602) 285-5000 facsimile (602) 285-5100 Attorneys for Defendants

Case 2:03-cv-01913-MHM

Document 65

18 Filed 03/31/2006

Page 19 of 20

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 By: /s/ Stephanie K. Osteen
#5811801

I hereby certify that on this 31st day of March, 2006, I electronically transmitted the foregoing 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 Montoya Jiminez, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorney for Plaintiff COPY hand-delivered to: Honorable Mary H. Murguia United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 525 401 West Washington Street, SPC 53 Phoenix, Arizona 85003-2154

Case 2:03-cv-01913-MHM

Document 65

19 Filed 03/31/2006

Page 20 of 20