Free Order on 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 27 28 This matter arises out of Plaintiff Joyce Corrales's claim that she was sexually harassed and constructively discharged while employed by Defendant Chase Bankcard Services, Inc. ("Chase Bankcard"). At issue are Defendant's Motion for Summary Judgment (Doc. 49), and Defendant's Motion for Sanctions for Failure to Comply with Discovery Order (Doc. 59). I. BACKGROUND Plaintiff was employed by Defendant as a retention representative at Defendant's Tempe, Arizona office from February 16, 2001 until April 5, 2001. (Resp. to Def.'s Statement of Facts in Supp. of its Mot. for Summ. J., and Statement of Additional Facts from Pl. ("PSOF"), Ex. 1, Decl. of Joyce A. Corrales ("Corrales Decl.") ¶ 3.) During the seven week period of Plaintiff's employment, she became friends with another Chase Bankcard
Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 1 of 13

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Chase Bankcard Services, Inc., a Delaware) corporation, d.b.a. Chase Manhattan Bank,) ) N.A., ) ) Defendant. ) ) Joyce A. Corrales,

No. CV-02-2157-PHX-SRB ORDER

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

employee, Brooke King. On April 4, 2001, King contacted Chase Bright, an employee in Defendant's human resources department, and complained that she was being sexually harassed by a fellow employee. In response to King's complaint, Bright commenced an investigation into the allegations that same day. As part of the investigation, Bright contacted and interviewed witnesses identified by King as individuals who may have personal knowledge of the alleged harassment. Among those witnesses was Plaintiff who was present at a luncheon at a restaurant away from company property where some of the harassment allegedly had occurred. On April 4, 2001, Plaintiff was informed that she would need to speak with Bright concerning a personnel matter. Attending the meeting were Bright, Corrales, and Derek Cheu, Bright's assistant. The purpose of the meeting was to investigate King's allegations. Neither Bright nor Cheu disclosed the names of either the complaining party or the individual being investigated to Plaintiff. Bright did direct a number of his questions to a lunch attended by Plaintiff, King, and other co-workers where matters of a sexual nature were discussed. Bright's questions led Plaintiff to erroneously conclude that she was the target of the investigation. Referring to the meeting with Bright and Cheu, Plaintiff was asked at her deposition: "So you thought you were being accused of sexual harassment?" Plaintiff answered: "Yeah. Basically, yes, I thought so." (Def.'s Separate Statement of Facts in Supp. of its Mot. for Summ. J. ("DSOF"), Ex. 6, Dep. of Joyce A. Corrales ("Corrales Dep.") at 89:7-9.) While most of the facts preceding and following the April 4, 2001 meeting are not in dispute, the substance of the meeting between Bright, Cheu, and Corrales is disputed. As is required on summary judgment, the Court takes Plaintiff's facts­when supported by depositions, affidavits, and other evidentiary material­to be true, and will therefore describe the content of the meeting in the light most favorable to Plaintiff. After Bright, Cheu, and Corrales were assembled in the interview room, Bright commenced the interview by informing Plaintiff that he was investigating allegations of sexual harassment in the -2Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 2 of 13

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

workplace. Immediately Plaintiff felt that she was being accused of something and thought, "what did I do?" (Corrales Dep. at 89:6.) As the interview progressed, Plaintiff stated that "she was trying to avoid answering those questions about conversations that I had of a sexual nature with my friend Brooke." (Corrales Dep. at 89:24-90:1.) However, Bright persisted in his questions concerning conversations of a sexual nature between Corrales and King until, eventually, Plaintiff revealed the content of the discussions. Although disputed by Defendant, in her declaration Plaintiff wrote, "Mr. Bright asked Corrales about all conversations she ever had with Ms. King on the subject of sex, at any time or place, and not limited to Mr. Rowlins [(the employee being investigated for harassment)]." (Corrales Decl. ¶ 7.) Plaintiff alleges that Bright "asked her if she ever discussed sexual matters with Ms. King" and that Bright "insisted that Corrales tell him . . . everything that Ms. King had ever told her about her sex life, experiences and attitudes, and everything Ms. Corrales had ever told Ms. King about her own sex life, experiences and attitudes." (Corrales Decl. ¶¶ 8-9.) Plaintiff's version of the interview depicts an offensive and inappropriate level of intrusion into her personal life, beyond that which would be necessary to internally investigate a workplace harassment claim. At the meeting's outset, Plaintiff refused to provide details to Bright of her conversations with King but eventually Plaintiff did disclose the content of these conversations. Plaintiff complied with Bright's requests only after his admonishment that all Chase Bankcard employees are required to cooperate with investigations of workplace harassment, even if they find the subject matter to be private or offensive. In the course of the investigatory interview at least four private matters were discussed that Plaintiff found intrusive to the point of harassment. These include answers provided by Plaintiff on the topic of menstruation, the size of her husband's penis, anal sex, and oral sex, all of which she had discussed with King on prior occasions. (Corrales Dep. at 91:2-17, 217:5-15, 218:4-14.) Much of the alleged harassment of Plaintiff stems from what she characterizes as Bright's persistence in requiring disclosure of details of her conversations with King and his -3Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 3 of 13

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

unwillingness to accept Plaintiff's general answers about topics that she discussed with King. Plaintiff testified that Bright "couldn't accept 'private parts,' he wanted to know what private parts. He couldn't accept 'talked about our husbands,' he wanted to know what about our husbands. And he couldn't accept 'women's issues,' he wanted to know what women's issues." (Corrales Dep. at 90:23-91:3.) Plaintiff cannot recall the meeting's duration, and stated: "I don't know if it was 30 minutes, I don't know if it was an hour. It just felt like forever. I don't remember." (Corrales Dep. at 218:17-19.) Bright testified that the meeting lasted "15, 20 minutes." (Bright Dep. at 15:3.) At the conclusion of the interview, Bright told Plaintiff that she could return to work and instructed her to not discuss the meeting due to the confidential nature of the pending investigation. Upset about the questions she was asked, Plaintiff tried to speak with her supervisors Traci Mott and Michelle Ransom, both of whom told her "we can't talk to you." (Corrales Dep. at 93:16, 218:20-23.) Plaintiff "wanted to talk to the supervisors about the interview." (Corrales Dep. at 93:8-9.) However, she did not tell either Mott or Ransom that she wanted to make a complaint about the interview or of sexual harassment. (Corrales Dep. at 93:8-9.) Plaintiff also tried to speak with supervisor Pamela Reynolds who "kept telling [Plaintiff] the same thing, basically, that this was an open investigation, they couldn't talk to [Plaintiff]." (Corrales Dep. at 94:25-95:2.) Plaintiff never told Reynolds or the other supervisors that she was attempting to make a sexual harassment complaint, but only that she wanted to discuss the interview. Each time they cut her off telling her it was an open investigation and they could not talk to her. (Corrales Dep. at 93:7-95:14.) For the remainder of the day, Plaintiff performed her job duties as usual. (Corrales Dep. at 97:11-17.) The following morning, Plaintiff reported to work and within the first hour was informed by Mott that Bright needed to ask her some follow-up questions. Plaintiff stated that she felt "like, I am not going through that again. I refuse. It was none of his business." (Corrales Dep. at 100:1-3.) Without making her sexual harassment allegations

-4Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 4 of 13

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

to Mott or any other supervisor, Plaintiff delivered a brief hand-written letter of resignation to the human resources receptionist and left the premises. When Plaintiff arrived back at her home she was "still very upset" and she phoned King to find out "what was going on." (Corrales Dep. at 104:14, 105:10.) After speaking with King, Plaintiff testified that, "I was okay when I found out that she didn't file some charge against me." (Corrales Dep. at 107:11-12.) Upon realizing that she was only questioned as a witness, Plaintiff "started making contact with New York, names like Wier, O'Connell, Farrell, trying to find out ­ get somebody to call me back, because I wanted to go back to ­ I wanted to go to work, but I didn't want to go to work if I had to answer those types of questions." (Corrales Dep. at 107:18-23.) Despite Plaintiff's attempts, Defendant's New York corporate human resources office did not offer her an opportunity to return to her previous position. As a result of Bright's alleged harassment, Plaintiff claims to have suffered a variety of damages including loss of income, high blood pressure, depression, stress, headaches, and loss of sleep. From these facts, Plaintiff alleges gender discrimination in the form of a hostile work environment and quid pro quo sexual harassment, both of which she alleges constituted a constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff seeks to recover compensatory damages, punitive damages, reasonable attorney's fees, and "injunctive relief including, inter alia, back pay and front pay" from Defendant. (First Am. Compl. and Demand for Trial by Jury at 8:16-27.) II. LEGAL STANDARDS AND ANALYSIS A. Motion for Summary Judgment

The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when: (1) no genuine issues of material fact remain; and (2) after viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R.

-5Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 5 of 13

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

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987). In considering a motion for summary judgment, the court must regard as true the nonmoving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986) (holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 1. Employment Discrimination: Hostile Work Environment

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To withstand summary judgment on a hostile work environment sexual harassment claim, a plaintiff must allege facts tending to demonstrate that she was: (1) subjected to "ongoing and persistent harassment severe enough to alter the conditions of employment" in an environment that was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so"; (2) that this harassment was "because of sex"; and (3) that the defendant employer is responsible for the acts of its employees under a recognized theory of liability. Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871-72, 875 (9th Cir. 2001). "Whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. -6Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 6 of 13

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

2000) ("frequency, severity and level of interference with work performance [are] among the factors particularly relevant to the inquiry."). The Supreme Court has not identified dispositive factors and instead has instructed the district courts to employ a totality of the circumstances analysis to determine whether the plaintiff has alleged facts that a reasonable person in the plaintiff's position could regard as either "hostile" or "abusive" enough to alter the conditions of the working environment. See Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1527 (9th Cir. 1995). In evaluating the objective portion of the test, courts often find it appropriate to begin by examining the frequency and severity of the harassing conduct. It is widely recognized that "[t]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (citing King v. Bd. of Regents of Univ. of Wis. Sys., 898 F.2d 533, 537 (7th Cir. 1990) ("although a single act can be enough, . . . generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.")); accord Andrews v. Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990); Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 578 (2d Cir. 1989). A single incident is rarely sufficient to support the showing of severity necessary to sustain a Title VII action, however, where an occurrence is "extremely severe," even a single incident can suffice. Brooks, 229 F.3d at 926. In this case, Plaintiff clearly felt uncomfortable, humiliated, and upset due to the questions asked at the April 4, 2001 meeting with Bright. However, Defendant was obligated to investigate Brooke King's complaint of sexual harassment. See generally Faragher v. Boca Raton, 524 U.S. 775 (1998); see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (defining the standard of conduct that employers must adhere to in order to avoid liability for supervisor harassment). As an unavoidable consequence of the investigatory process, employers might have to ask questions calculated to uncover the extent of the sexual banter occurring among their employees, allowing the employer to accurately gauge the -7Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 7 of 13

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

relative offensiveness of the complained-of conduct. Comments that seem outrageous in some work environments could be considered everyday dialogue in a workplace where racy comments are the norm. Title VII requires that employers promptly investigate complaints of workplace harassment in a manner fair to the parties, and in doing so employers must sometimes ask difficult questions on topics that most employees would never imagine they would have to discuss with their employer. Viewing Plaintiff's version of the facts as true, there is evidence to suggest that Bright's interview of Plaintiff was intrusive and may have required unnecessarily graphic details of her conversations with King. Detailed questions about Corrales and King's conversations about their marital sexual practices and the respective sizes of their husbands' genitalia seem well beyond what was necessary to investigate the harassment charge made by King. However, the description of the interview as described by Plaintiff does not, by itself, amount to hostile work environment sexual harassment. In addition to the questions asked by Bright during the April 4, 2001 meeting, Plaintiff has alleged several subsequent events that she contends contributed to her perception that her work environment had become hostile and abusive. After leaving the interview, Plaintiff claims that she attempted to complain to her supervisors about Bright's conduct and that she was rebuffed in her attempts to report his allegedly sexually harassing questions. Moreover, on the morning of April 5, 2001, Plaintiff was ordered by her supervisor to report to a second meeting with Bright. From Plaintiff's perspective, this was akin to being ordered by her supervisor to submit to a second round of humiliating sexual harassment, something that she was unwilling to do. The Court examines these allegations to determine whether these additional circumstances could have led a reasonable person to find that the workplace had become hostile and abusive. The evidence presented by Plaintiff does not support her assertion that she attempted to report sexual harassment to three separate supervisors. Instead, the evidence shows that Plaintiff, in general terms, told her supervisors that she wished to speak about the -8Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 8 of 13

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

interview­an off-limits topic due to confidentiality concerns­and never communicated either her desire to make a sexual harassment complaint or the actual complaint itself. The following morning, when Supervisor Mott ordered Plaintiff to participate in a follow-up interview with Bright, Plaintiff delivered a letter of resignation to the human resources receptionist and walked off the job. She did not report harassment to Mott or any other supervisor. The events following the interview add little support to Plaintiff's position that her work environment had become objectively hostile and abusive. After assessing the totality of the circumstances using the factors set forth by the United States Supreme Court in Harris­frequency, severity, physical threats, humiliation, and interference with job performance­the evidence presented demonstrates that the "[c]onduct [] is not severe or pervasive enough to create an objectively hostile or abusive work environment­an environment that a reasonable person would find hostile or abusive." Harris, 510 U.S. at 21. The entire series of events alleged by Plaintiff transpired over a period of no more than twenty-four hours. Plaintiff was neither physically threatened nor physically harmed. The evidence supports the conclusion that Plaintiff's job performance was only minimally affected, because she was able to return to work following the interview, and after resigning and learning the true nature of the investigation, immediately sought reinstatement. No reasonable woman in Plaintiff's position could have found the

circumstances of her employment hostile and abusive. The facts alleged, viewed in a light most favorable to Plaintiff, do not rise to the level of actionable sexual harassment. Accordingly, the evidence presented by Plaintiff is insufficient to support a Title VII hostile work environment claim and Defendant is entitled to summary judgment.1

On January 21, 2004, this Court granted Defendant's Motion to Dismiss. Plaintiff appealed and the Ninth Circuit in Corrales v. Chase Bankcard Serv., Inc., 128 Fed.Appx. 598 (9th Cir. 2005), reversed this Court's Order of Dismissal. Plaintiff argues in her Response to Defendant's Motion for Summary Judgment ("Plaintiff's Response") that this Court is bound by the "law of the case" and "the Court cannot grant the DMSJ as to the [hostile environment sexual harassment] claim unless it finds that Corrales has failed to present -9Case 2:02-cv-02157-SRB Document 91 Filed 02/20/2007 Page 9 of 13

1

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

2.

Employment Discrimination: Quid Pro Quo

"A complainant establishes a case of quid pro quo sexual harassment by showing that a supervisor 'explicitly or implicitly condition[ed] a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct.'" Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 n.15 (9th Cir. 2003) (citing Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir.1995) (quoting and adopting Nichols v. Frank, 42 F.3d 503, 511 (9th Cir. 1994))). Plaintiff alleges that Bright interrogated her about her personal sexual preferences to satisfy his prurient interests and that the interrogation constituted "sexual conduct." In addition, Plaintiff has testified that Bright told her during the interview that cooperation with the investigation was mandatory. However, Plaintiff has failed to produce any evidence that Bright explicitly threatened her with adverse employment action had she refused to answer the intrusive questions or to submit to the second interview. In her Response to Defendant's Motion for Summary Judgment, Plaintiff wrote that during the interview Bright "ordered [Plaintiff] to answer or be fired." (Pl.'s Resp. at 6 (emphasis in original).) This statement cites to, but is not supported by, Plaintiff's Declaration where she wrote that she was "afraid of being fired." (Pl.'s Resp., Ex. 1 ¶ 9.) Subjective fear of losing one's job in contrast to a specific statement that one "answer or be fired" are not the same, and the former is insufficient to show an explicit threat of a job-related detriment.

admissible evidence to prove some element" of her claim. (Pl.'s Resp at 4-5.) While this Court is required to follow the law provided by the Ninth Circuit in its April 11, 2005 memorandum decision, the Court is only required to do so concerning "issues 'decided explicitly or by necessary implication.'" United States v. Garcia-Beltran, 443 F.3d 1126, 1129 (9th Cir. 2006) (citation omitted). The Ninth Circuit's decision was based on the allegations in the Complaint. The Court is now considering Defendant's Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56. Rule 56 requires that the non-moving party "must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a material question of fact." Anderson, 477 U.S. at 256-57. The evidence fails to fully support the allegations made in the Complaint. - 10 Document 91 Filed 02/20/2007 Page 10 of 13

Case 2:02-cv-02157-SRB

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

Fear that adverse employment action will result from an employee's failure to accept a supervisor's implicit sexual demands, if objectively reasonable, is sufficient to support a claim of quid pro quo sexual harassment when sexual conduct ensues. Holly D., 339 F.3d at 1173-74. In Holly D., the Ninth Circuit held that, "we require more than conclusory allegations that the supervisor proposed a sexual liaison and the employee responded to the overtures in order to protect her employment interests." Id at 1174. For an employee to create a material issue of fact regarding the existence of an implicit requirement that the employee assent to sexual conduct, the employee must provide "particular facts and circumstances" demonstrating the existence of a threat against her employment interests. Id. In Holly D., the court found no implicit threat where there was no evidence of a connection between the sexual conduct and any verbal discussion of her "job duties," "potential change in her employment status," or "any job-related matters." Id. In this case, Plaintiff has not come forward with evidence substantiating her position that Bright had either the authority or the inclination to take adverse employment action against her if she had refused to disclose details of her private sex life. The evidence offered shows that Plaintiff was required to meet with Bright, and during the interview was reminded that cooperation with the internal investigation was mandatory. However, at no time did Bright mention Plaintiff's employment situation, her job duties, prospects for promotion or demotion, or likely ramifications should she choose not to comply with any aspect of the investigation. It is evident that Bright, at a minimum, would have been dissatisfied with Plaintiff's refusal to answer his questions, but any further inferences as to what steps would have been taken to rectify the noncompliance, if any, would be moving from inference to speculation. This form of speculation is precisely the type that the Ninth Circuit warned against in deciding Holly D. Id. Viewing all of the facts presented in the light most favorable to Plaintiff, Plaintiff's quid pro quo claim is unsupported by the evidence. 3. Constructive Discharge

- 11 Document 91 Filed 02/20/2007 Page 11 of 13

Case 2:02-cv-02157-SRB

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

In determining whether an employee was constructively discharged "[t]he inquiry is objective: [d]id the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). This standard requires that the plaintiff prove circumstances beyond those necessary to sustain an ordinary sexual harassment claim. Therefore, "a hostileenvironment constructive discharge claim entails something more" than conduct "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 146-47; See, e.g., Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir. 1999) ("[A]lthough there may be evidence from which a jury could find sexual harassment, . . . the facts alleged [for constructive discharge must be] . . . so intolerable that a reasonable person would be forced to quit."); Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) ("[U]nless conditions are beyond 'ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress."). The Court, in this Order, has determined that Plaintiff failed to create a material issue of fact concerning either of the two sexual discrimination claims that she has advanced. Thus, Plaintiff was not constructively discharged because "ordinary discrimination" is a prerequisite to a finding of constructive discharge, which can only be sustained based on conditions "beyond ordinary discrimination." Perry, 126 F.3d at 1015. However,

irrespective of the disposition of Plaintiff's sexual discrimination claims, Plaintiff has not offered evidence sufficient to create a material issue of fact under a constructive discharge theory because no reasonable person could conclude that Defendant created an intolerable work environment, one from which a reasonable person would have found it necessary to escape. In fact, the evidence demonstrates that Plaintiff returned to work following the meeting with Bright and was able to perform her job duties as usual. Moreover, after resigning her position and subsequently learning that she was not the target of the investigation, Plaintiff immediately contacted Defendant in an attempt at reinstatement. - 12 Document 91 Filed 02/20/2007 Page 12 of 13

Case 2:02-cv-02157-SRB

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

Plaintiff, in the absence of intolerable conditions, was required to mitigate damages by remaining on the job while seeking redress through the appropriate internal channels. Id. Plaintiff cannot support an actionable claim for constructive discharge. B. Defendant's Motion for Sanctions

Defendant has asked the Court to sanction Plaintiff for failing to disclose certain documents in a timely manner. The Court by this Order makes no determination as to the merits of the Motion for Sanctions. Because this Order resolves all of Plaintiff's claims, the Motion is denied as moot. IT IS ORDERED granting Defendant Chase Bankcard Services, Inc.'s Motion for Summary Judgment (Doc. 49). IT IS FURTHER ORDERED denying Defendant Chase Bankcard Services, Inc.'s Motion for Sanctions as moot (Doc. 59). IT IS FURTHER ORDERED directing the Clerk to enter judgment in favor of Defendant.

DATED this 16th day of February, 2007.

- 13 Document 91 Filed 02/20/2007 Page 13 of 13

Case 2:02-cv-02157-SRB