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

Ernest Calderón (#007677) Faith C. Klepper (#018444) CALDERÓN LAW OFFICES 2020 N. Central Ave., Suite 1100 Phoenix, AZ 85004 (602) 265-0004

Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOYCE A. CORRALES, Plaintiff, vs. CHASE BANKCARD SERVICES, INC., a Delaware corporation, d/b/a Chase Manhattan Bank, N.A., Defendant. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Assigned to the Honorable Susan R. Bolton) (Oral Argument Requested) No. CIV 02-2157-PHX-SRB

Pursuant to Federal Rule of Civil Procedure 56(b), Defendant Chase BankCard Services, Inc., moves for summary judgment on Plaintiff's discrimination claims because: (1) Plaintiff did not suffer any sexual harassment; (2) Plaintiff's working conditions were not altered; (3) Defendant had no notice of Plaintiff's allegations prior to her resignation; (4) Plaintiff did not suffer any damages; and (5) Chase BankCard is not liable for punitive damages as a matter of law. This motion is supported by the attached Memorandum of Points and Authorities

21

incorporated herein.
22 23 24 25 26

RESPECTFULLY SUBMITTED this 1st day of May, 2006. CALDERÓN LAW OFFICES

___s/Faith C. Klepper__________________ Ernest Calderón Faith C. Klepper
1

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 1 of 18

1 2

MEMORANDUM OF POINTS AND AUTHORITIES I. Standard for Granting Summary Judgment. Summary judgment is appropriate where there is no genuine dispute of material fact and

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

the requesting party is entitled to summary judgment as a matter of law. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000). A motion for summary judgment should be granted if the facts produced in support of the claim or defense show no issue of material fact. Id. The moving party carries the burden of production, in which it must produce evidence negating an element of the claim or show that the non-moving party does not have sufficient evidence to meet its burden at trial. Id. II. Factual Background On April 4, 2001, Chase Bright, an experienced employee relations officer for JPMorgan Chase & Co., was assigned to conduct an investigation of sexual harassment allegations made by employee Brooke King. See Separate Statement of Facts ("SSOF") at ¶ 3. Ms. King told Mr. Bright that, among other things, a male co-worker had made unwelcome sexual remarks about her breasts during a lunch with other Chase employees. SSOF at ¶ 2, 5. At the time, Plaintiff

18 19 20 21 22 23 24 25

also worked for Chase BankCard as a retention services representative. SSOF at ¶1. Ms. King identified Plaintiff as a witness to the comments made at the lunch. SSOF at ¶5. Together, Chase Bright and his assistant, Derek Cheu, interviewed the employees Ms. King named as witnesses, including Plaintiff. SSOF at ¶6. Mr. Bright and Mr. Cheu's interview with Plaintiff occurred on the morning of April 4, 2001, shortly after the interview with Ms. King. Id. During the interview, Mr. Bright made appropriate inquiries which were limited to Plaintiff's knowledge of the circumstances surrounding the alleged sexual harassment. SSOF at

26

¶7.

He asked the same series of questions to every witness he interviewed during the
2

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 2 of 18

1 2 3 4

investigation. Id. He began his interviews by stating that he and Mr. Cheu were conducting an investigation into some inappropriate comments that were made in the workplace. Id. He then asked Plaintiff if she had heard any inappropriate remarks in the workplace. Id. When Plaintiff responded that she had not heard anything in the workplace, Mr. Bright asked her if she had

5 6 7 8 9 10 11 12

heard anything outside the workplace. Id. Plaintiff was initially reluctant to answer because she was unsure why she was being asked about a lunch that took place off Chase property and thought she was being accused of sexual harassment. SSOF at ¶8, 9. Plaintiff eventually responded to the questions when it was explained that she must cooperate with the investigation and was told why comments made at lunch were relevant. SSOF at ¶8. Mr. Bright did not inform Plaintiff of the specific nature of the complaint because he did not want to lead Plaintiff, but hear what, if anything, she knew about the allegations

13

already. SSOF at ¶7. The technique is used to get a comprehensive picture of the alleged
14 15 16 17 18 19 20 21

incidents and to draw as much relevant information from witnesses as possible without slanting their testimony. Id. In doing so, Mr. Bright learned, among other things during the interview, that Plaintiff had also made comments of a sexual nature and at one point, demonstrated the size of Ms. King's breasts. SSOF at ¶ 9. After she told this to Mssrs. Bright and Cheu, Mr. Bright followed up on what she may have said or heard at the lunch by asking her what else was stated. SSOF at ¶7. Plaintiff gave additional information about comments made by others. Id. Mr. Bright also asked if she had heard anything else that would have been inappropriate in the

22

workplace, as part of his investigation into Ms. King's other allegations against the male co23 24 25 26

worker. Id. Plaintiff denied knowledge of anything else. Id. At the end of the interview, Mr. Bright advised Plaintiff, as he did all others he interviewed that day, that the investigation was confidential and she was not to speak with anyone about the investigation. SSOF at ¶10.
3

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 3 of 18

1 2 3 4

Plaintiff initially claimed that she notified her supervisors that Mr. Bright had asked inappropriate questions after she returned to her work area and that they told her they could do nothing about it. See Complaint, ¶ 12. However, Plaintiff testified at her deposition that she did not tell her supervisors about her allegations or that she wanted to file a complaint about Mr.

5 6 7 8 9 10 11 12

Bright's conduct during the interview. SSOF at ¶11. The deposition revealed that Plaintiff only said she wanted to talk about the interview and her supervisors advised her that they were not permitted to discuss the ongoing investigation into Ms. King's allegations. Id. After speaking with her supervisors, Plaintiff then returned to her work station and continued performing her job duties the rest of that day without incident. SSOF at ¶ 12. Plaintiff returned to work the next day, fully intending to continue working as she had done before, having suffered no ill effects on her working conditions from the previous day's interview. Id.

13

She still believed that Ms. King had filed a complaint against her and thought about calling her to
14 15 16 17 18 19 20 21

"give her a piece of [her] mind." Id. That same day, Mr. Bright sought to interview Plaintiff again to follow up on the investigation after he and Mr. Cheu heard statements from other witnesses that Ms. King may have been participating in the sexual comments made at the lunch. SSOF at ¶ 13. When supervisor Traci Mott approached Plaintiff to inform her that a follow-up interview was requested, Plaintiff said nothing whatsoever to Ms. Mott. SSOF at ¶14. She only wrote a letter stating: "Letter of resignation, immediately. I refuse to become involved in all this sexual

22

harassment crap. I am an adult. I was on my lunch, unpaid hours." Id. She did not approach
23 24 25 26

Ms. Mott or any of her other supervisors but simply took the letter to a human resources department receptionist and turned it in with her badge. Id.

4

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 4 of 18

1 2 3 4

After resigning, Plaintiff, still believing Ms. King had filed a sexual harassment charge against her, called Ms. King and confronted her about the investigation. SSOF at ¶ 15. Ms. King informed Plaintiff that her complaint was against another male employee, who was the primary person making sexual comments about Ms. King at the lunch and who had allegedly

5 6 7 8 9 10 11 12

engaged in other harassing behavior. Id. After learning that she was not the target of the bank's sexual harassment investigation, Plaintiff "felt better." Id. She did not make any claim to Ms. King that Mr. Bright compelled her to disclose intimate details of her or Ms. King's sexual affairs. Id. The following day, however, she went to the EEOC to make a complaint. SSOF at ¶16. Then, on April 7, two days after she resigned from the bank, she wrote a letter to Mr. Bright's supervisor alleging that Mr. Bright conducted himself inappropriately. Id. Thus, it was not until after Plaintiff quit her job and found out that she was not the target of the investigation

13

that she claimed she suffered any sexual harassment. Even then, however, Plaintiff wanted to
14 15 16 17 18 19 20 21

return to her job; she just didn't want to participate in the investigation of Ms. King's allegations. Id. Plaintiff now brings a Complaint for sexual harassment against Chase BankCard because she claims that its employee, Chase Bright, inquired about matters of a sexual nature outside the scope of his sexual harassment investigation and that she was constructively discharged because of that single incident. See, generally, Complaint. Plaintiff's own inadequate allegations are the only evidence she offers to prove she was sexually harassed by Mr. Bright. All other evidence

22

shows that Mr. Bright asked only appropriate questions during his interview with Plaintiff
23 24 25 26

regarding her co-employee's complaints of sexual harassment.

Moreover, uncontroverted

evidence demonstrates that Plaintiff quit because she believed she was being investigated for

5

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 5 of 18

1 2 3 4 5 6 7

sexually harassing Ms. King, not because she believed she had been sexually harassed. Bright did not commit any improper conduct in this case. III.

Mr.

Plaintiff's Only Evidence of Mr. Bright's Alleged Conduct Is Her Own Changing Testimony. Plaintiff has offered no corroborating evidence to support her claims that Mr. Bright

asked inappropriate questions. All other evidence, for example, Mr. Bright's testimony, Mr. Cheu's testimony, and notes taken during every witness interview surrounding the investigation,

8

supports that Mr. Bright asked only appropriate questions during his interview with Plaintiff
9 10 11 12 13 14 15 16

regarding her co-employee's complaints of sexual harassment. After years of discovery in two separate court matters, Plaintiff has not produced a single shred of evidence outside of her allegations to support that Mr. Bright harassed her. In fact, Plaintiff's own story has changed over time, thus significantly lessening its probative impact. When she wrote a letter to Mr. Bright's supervisor two days after quitting her job, she claimed only that Mr. Bright asked questions about sexual comments occurring within her "social group," which Mr. Bright did ask about in relation to his investigation of the lunch in

17

which Plaintiff and a number of her co-workers made remarks about Ms. King's body. See
18 19 20 21 22 23 24 25

SSOF at ¶16.

This allegation has since morphed into a complaint that Mr. Bright asked

questions about private conversations between her and Ms. King ­ not the "social group" of which she previously complained. Complaint at ¶10. Additionally, in her post-resignation letter, she claimed she told her supervisors that she "did not appreciate being forced to discuss with Chase Bright the intimate details of conversations I have had with my friends." See SSOF at ¶16. Now, however, she claims she only said the following to her supervisor during that same conversation: "I need to talk to you about what just happened downstairs." See SSOF at ¶11.

26

6

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 6 of 18

1 2 3 4

This vague statement does not come close to making a claim of harassment against her coworker and cannot reasonably give Chase BankCard notice that Plaintiff wanted to make a sexual harassment complaint. A plaintiff must provide affirmative, probative evidence to support the allegations in her

5 6 7 8 9 10 11 12

Complaint to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). Assuming for purposes of argument that Chase BankCard is liable for the alleged conduct of its employee, Plaintiff's only evidence in this case is her own changing testimony. Such vastly different statements have so little probative value that a reasonable factfinder could not return a verdict in her favor. This is especially true where Plaintiff provides no corroborating evidence of the alleged conduct and all other evidence, such as the testimony and contemporaneous interview notes of Chase Bright and Derek Cheu, fail to support her

13

allegations. Accordingly, Plaintiff cannot meet her burden to produce evidence sufficient to
14 15 16 17 18 19 20 21 22 23 24 25 26

meet her ultimate burden of persuasion at trial and this court should grant summary judgment for Chase BankCard. Even if Plaintiff's stories about the interview had some support in evidence, however, she still would not be able to meet her burden to prove her claims because it is clear that Plaintiff went back to work after the interview, suffering no performance problems and did not make a complaint of sexual harassment until two days after she quit and found out she was not the target of Mr. Bright's investigation. IV. Plaintiff has not made a prima facie case of quid pro quo or hostile work environment sexual harassment. A. Elements of Sexual Harassment

Plaintiff claims that Mr. Bright's alleged conduct constitutes a claim of quid pro quo and hostile work environment sexual harassment. "A hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the job
7

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 7 of 18

1 2 3 4

performance of those harassed. A quid pro quo claim, as the name implies, occurs when a supervisor demands sexual favors in return for a job benefit." Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). To prove a hostile work environment sexual harassment claim, Plaintiff must show that

5 6 7 8 9 10 11 12

the "workplace [was] permeated with discriminatory intimidation ... that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Harris v. Forklift Systems, 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993). A

hostile work environment claim requires the plaintiff to show a pattern of offensive conduct. Consequently, isolated incidents are rarely considered severe or pervasive enough to change employment conditions. The Ninth Circuit has held that "if a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe." Brooks, 229

13

F.3d at 926 (emphasis added). Like Plaintiff, Brooks claimed that she suffered a hostile work
14 15 16 17 18 19 20 21

environment based on a single incident. Id. at 921. She alleged that her co-worker physically assaulted her. Id. However, even this type of outrageous behavior did not satisfy the standard for a hostile work environment claim. Because "Brooks was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long term," the Ninth Circuit found that she did not establish a legitimate claim of hostile work environment sexual harassment. Id. at 926. To prove a quid pro quo claim of sexual harassment, Plaintiff must demonstrate that her

22

"submission to or rejection of such conduct ... [was] used as the basis for employment decisions
23 24 25 26

affecting [her]."

29 C.F.R. § 1604.119(a)(2).

"For any sexual harassment preceding the

employment decision to be actionable, however, the conduct must be severe or pervasive." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 2265 (1998).
8

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 8 of 18

1 2 3 4

Accordingly, if a plaintiff suffered no adverse employment decision such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits" (Id. at 761, 118 S.Ct. at 2268), her claim must be analyzed under a hostile work environment analysis. Id. at 754, 118 S.Ct. at 2265. In this case, as in

5 6 7 8 9 10 11 12 13 14

Ellerth, it is undisputed that Plaintiff suffered no adverse employment decision like the ones set forth in Ellerth. Therefore, she has no actionable quid pro quo claim and this Court must grant summary judgment for Defendant on that count and analyze the remainder of her claims under a hostile work environment analysis. B. Plaintiff's working conditions were not intolerable or substantially altered. In order to prove a prima facie case of hostile work environment sexual harassment, Plaintiff must show that the incident substantially altered her working conditions. Brooks, 229 F.3d at 923. The working environment must be subjectively and objectively (based on a To determine whether the alleged

reasonable woman standard) perceived as abusive. Id.
15 16 17 18 19 20 21 22

conduct created an objectively hostile working environment, the court must assess the totality of the circumstances, including the frequency of the alleged conduct, its severity and whether it unreasonably interferes with an employee's work performance. Id. at 924. Here, as demonstrated above, there is only one incident involved in Plaintiff's claim. In denying Chase's Rule 12(b)(6) Motion to Dismiss, the Court of Appeals relied on Plaintiff's allegation in her Complaint that she told her supervisors she was harassed and they told her "nothing that could be done about what Mr. Bright had done in his interrogation." Corrales v.

23

Chase Bankcard Services, Inc., 2005 WL 823887 (9th Cir. 2005) (slip copy). The Court of
24 25 26

Appeals relied upon this allegation as an "aggravating circumstance" that prohibited this Court from finding the interview as a single, isolated incident. Id. However, Plaintiff's allegation in
9

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 9 of 18

1 2 3 4

her Complaint is untrue. During the discovery process, Plaintiff admitted she never informed her supervisors of her allegations. SSOF at ¶11. Thus, there are no "aggravating circumstances" as previously suggested by the Court of Appeals. Additionally, there is no question that the alleged conduct was not physically threatening

5 6 7 8 9 10 11 12

or humiliating. The conduct Plaintiff alleges to be harassing are questions asked during the course of an investigation into the sexual remarks Plaintiff and her co-workers were making to each other. Consequently, the only inquiry left is whether Mr. Bright's interview interfered with Plaintiff's work performance. Plaintiff has offered no such evidence of this. She stated in her deposition that she went back to work after the interview with Chase Bright and had no problems performing her job duties. Moreover, she returned to work the next day believing the incident was behind her. This

13

shows that the lone interview did not alter her working conditions as a retention representative.
14 15 16 17 18 19 20 21

Plaintiff has provided no evidence that she was unable to perform her job duties. Indeed, she went right back to work afterward and suffered no ill effects. She admits that her job

performance did not suffer at all and that, even after she quit, she would have continued to work at her position despite this allegedly upsetting interview. Plaintiff's admissions establish two things. First, it shows that the alleged conduct, which she claims caused her to quit her job, did not occur. This information, combined with the Plaintiff's admission and the corroborating testimony of Brooke King that Plaintiff thought she

22

was under investigation for sexual harassment at the time she quit, clearly demonstrates that
23 24 25 26

Plaintiff quit her job because she thought she was going to be fired for making sexually harassing comments to Ms. King.

10

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 10 of 18

1 2 3 4

Second, it shows that, even if the alleged conduct did occur, it was not so severe or pervasive as to change a single thing about the conditions under which she performed her job as a retention representative. Thus, because Plaintiff cannot establish and indeed admits that she suffered no tangible change in her employment or working environment conditions, her claims of

5 6 7 8 9 10 11 12 13

sexual harassment must be summarily dismissed. C. Chase BankCard had no notice of Plaintiff's allegation against her co-worker. Assuming for purposes of argument that Plaintiff can even prove that Mr. Bright acted inappropriately, Plaintiff has not established that Chase had any notice of her allegations. In order to establish that an employer is liable for its employee's alleged conduct, the plaintiff must establish that it had notice of actionable harassment and that it failed to sufficiently respond. Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001). There is no evidence that Chase knew about or could foresee the alleged conduct. Indeed, the only evidence Plaintiff has that any

14 15 16 17 18 19 20 21

misconduct occurred in this case are her own allegations, none of which was imparted to her employer prior to her resignation. Because Plaintiff failed to notify anyone at the bank of her allegations before quitting her job, Chase did not even have an opportunity to investigate or ratify the alleged conduct. According to Plaintiff's deposition testimony, Plaintiff did not inform her supervisors of her allegations. Although she claims in her Complaint that she complained to her supervisors, she never informed any of them that she wished to make a sexual harassment complaint.

22

Moreover, despite her allegation that her supervisor informed her that she could not discuss the
23 24 25 26

pending investigation, Plaintiff had several other opportunities and avenues to lodge her complaint. Plaintiff could have provided a written complaint to her supervisors or Mr. Bright's

11

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 11 of 18

1 2 3 4

supervisors, explaining the nature of her allegations but she did not do this until after she quit and found out from Ms. King that she was not being accused of sexual harassment. Moreover, Plaintiff could have said something to Ms. Mott the next day when approached to return for a follow-up interview, but she did not. She simply wrote a letter of

5 6 7 8 9 10 11 12

resignation and handed it to a receptionist. She did not ask to speak to anyone in the human resources department to discuss her reason for leaving. She did not ask to speak to Mr. Bright's supervisor. She did not ask if she could refuse the follow-up interview. She did not ask if she could cooperate with the investigation by interviewing with a different investigator. She simply left without informing anyone of her reason for leaving or asking anyone for assistance or accommodation to avoid any further alleged harassment. Plaintiff had other opportunities and means of lodging a sexual harassment complaint

13

(and to allow the bank to investigate it), but did not take advantage of a single one until after she
14 15 16 17 18 19 20 21 22

quit and found out from Ms. King that she (Plaintiff) was not the alleged harasser. Thus, it was not until after Plaintiff resigned that Chase had any knowledge of the alleged conduct Plaintiff claims occurred. For that reason, Plaintiff cannot establish the critical element of her claim that Chase knew or should have known about her allegations. Therefore, summary judgment for the defense is appropriate. D. Plaintiff was not constructively discharged.

An employer is only liable for constructive discharge when it imposes intolerable working conditions that would foreseeably compel a reasonable employee to quit. "The inquiry

23

is objective: Did working conditions become so intolerable that a reasonable person in the
24 25 26

employee's position would have felt compelled to resign?" Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2351 (2004). "A hostile-environment constructive discharge claim entails
12

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 12 of 18

1 2 3 4

something more [than conduct severe or pervasive enough to alter the conditions of the employee's employment]: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Id. at 2354, citing e.g. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997) ("[U]nless

5 6 7 8 9 10 11 12

conditions are beyond `ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress."). "Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge." Brooks, 229 F.3d at 930. Because Plaintiff has produced no evidence that she suffered intolerable working conditions that impaired her ability to do her job, she cannot meet the higher burden of proof to demonstrate that her working conditions had

13

deteriorated to the point where she was compelled to resign the very next day. In fact, Plaintiff's
14 15 16 17 18 19 20 21 22 23 24 25 26

admission that, even after she resigned, she would have returned to the same job if she did not have to do another interview demonstrates that the conditions of her employment were not so intolerable or pervasive as to prevent her from doing her job as a retention representative. Accordingly, she cannot establish that she was constructively discharged and her claim must be summarily dismissed. E. Plaintiff did not seek to mitigate her losses by seeking redress through Chase BankCard grievance procedures before quitting her job. Even if Chase should have known of Plaintiff's allegations based on that one abbreviated conversation with her supervisors, Plaintiff still cannot establish a valid claim of constructive discharge. Plaintiff's response to quit the next day when approached by her supervisor to inform her of the request for a follow interview was unreasonable as a matter of law.

13

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 13 of 18

1 2 3 4

The Ninth Circuit has held that Title VII requires a plaintiff to "remain on the job to mitigate damages from employment discrimination and resolve their complaints through existing employment relationships, unless such job presents such an aggravated situation that a reasonable employee would be forced to resign." Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.

5 6 7 8 9 10 11 12

1982). "An allegation of managerial inaction, especially concerning such a serious complaint as sexual harassment, cannot be sustained when management is not even provided 24 hours in which to investigate the charge." Bowman v. Arizona Department of Economic Security, 182 Ariz. 543, 547, 898 P.2d 492, 496 (App. 1995). Accordingly, any error of her supervisor's initial response to her alleged attempt to complain about Mr. Bright's interview was made moot by the fact that she immediately quit rather than allow the company any opportunity to investigate the matter, much less actually learn

13

about it. Because of Plaintiff's resignation, Chase did not have an opportunity to learn about or
14 15 16 17 18 19 20 21

investigate any alleged improper conduct despite the fact that she had several avenues for airing her alleged grievance. The evidence shows that Chase had an effective and accessible policy for reporting sexual harassment complaints. This is best shown by the testimony of Ms. King and Mr. Bright. When Ms. King notified Mr. Bright of her allegations, an investigation into the matter began the same day. Moreover, Chase BankCard's policy allowed employees to make complaints of sexual harassment to several different persons, from immediate supervisors to the head of Human

22

Resources in New York City, as Plaintiff did several days after she resigned. Despite all the
23 24 25 26

avenues to petition for redress available to her, however, Plaintiff failed to notify anyone at Chase BankCard of her allegations until after she had quit and found out from Ms. King that she was not the person about whom Ms. King had complained. Thus, Plaintiff has failed to show
14

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 14 of 18

1 2 3 4 5 6 7 8 9 10 11

that Chase BankCard itself acted improperly or failed to take any action and summary judgment is appropriate in this case. VII. Plaintiff has produced no evidence showing she suffered any damages. Plaintiff failed to produce any probative evidence that she has suffered any damages. Chase BankCard conducted a lengthy inquiry into this area during Plaintiff's deposition and repeatedly requested production of evidence supporting her claims for damages. Despite these inquiries, her assurances that such material would be produced and the lengthy amount of time she was given to produce such evidence, she has provided Chase BankCard with no supporting evidence of her claims for damages. To avoid summary judgment for the defense, a plaintiff must set forth sufficient facts by affidavit or other evidence that is significantly probative or

12

more than merely colorable to demonstrate that a material issue of fact exists for trial. F.T.C. v.
13 14 15 16 17 18 19 20 21 22

Gill, 265 F.3d 944 (9th Cir. 2001). Plaintiff's vague answers to Chase BankCard's inquiries into her alleged damages are not significantly probative, especially when considered with the fact that she could not produce the requested documentation of her alleged damages. Therefore, Plaintiff cannot establish that a material issue of fact exists for trial and summary judgment for the defense must be granted. VIII. Plaintiff cannot show any egregious conduct by Chase BankCard that would entitle her to punitive damages. In 1991, Congress amended Title VII to authorize punitive damages when an employer has "engaged in a discriminatory practice or discriminatory practices with malice or with

23

reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C.
24 25 26

§ 1981a(b)(1).

"The terms `malice' or `reckless indifference' pertain to the employer's

knowledge that it may be acting in violation of federal law, not its awareness that it is engaging
15

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 15 of 18

1 2 3 4

in discrimination." Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 2120 (1999). Moreover, "in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's `good-faith efforts to comply with Title VII.'" Id. at 528, 119 S.Ct. at

5 6 7 8 9 10 11 12

2121. In her Complaint, Plaintiff alleges that she is entitled to punitive damages from Chase BankCard because she alleges that Chase BankCard has "poor policies on protection from sexual harassment which discouraged reporting" and because the company did not properly train or control Mr. Bright. Complaint at ¶ 15. However, Plaintiff has not produced a single shred of evidence to support these claims. She has produced no evidence supporting her claim that anyone was discouraged from reporting sexual harassment. In fact, the evidence shows that

13

Chase BankCard's policy did not discourage her friend Brooke King from reporting sexual
14 15 16 17 18 19 20 21

harassment. Moreover, she has produced no evidence that she was discouraged from reporting Mr. Bright's alleged conduct before she quit as a direct result of Chase BankCard's policies nor has she produced any evidence that Chase BankCard improperly trained or "controlled" Mr. Bright. Furthermore, the quick and thorough investigation into Ms. King's allegations shows that Chase BankCard makes good faith efforts to comply with Title VII. Finally, Plaintiff has not provided any evidence that Chase BankCard acted with malice or reckless indifference to her

22

federal civil rights. It could not have done so because it was never made aware of her allegation
23 24 25 26

that her rights were being violated. Chase BankCard has not injured Plaintiff. She voluntarily resigned her employment without notifying Chase BankCard of her allegations. Consequently, Chase BankCard could not
16

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 16 of 18

1 2 3 4

have committed any egregious or intentional conduct when it had no notice of her allegations. The alleged harassing conduct was isolated to one interview on April 4, 2001. Plaintiff quit her job the next day without notifying anyone of her alleged complaint. Her first complaint to a human resources supervisor did not occur until after she resigned and was informed that she was

5 6 7 8 9 10 11 12 13 14

not the target of the investigation. Because of Plaintiff's actions, Chase BankCard could not have ratified Mr. Bright's alleged conduct because it had no notice of it, nor an opportunity to investigate her allegations. Thus, Chase BankCard has not engaged in any reckless or malicious conduct that would permit the awarding of punitive damages. Accordingly, this Court should grant summary judgment with respect to Plaintiff's claim for punitive damages. VIII. Conclusion Chase Bright did not commit any improper conduct in this case and Plaintiff has no evidence to corroborate her bare allegations. Chase BankCard requests that this Court grant summary judgment on Plaintiff's claims of sexual harassment and dismiss this case with

15 16 17 18 19 20 21 22 23 24 25 26

prejudice. In the alternative, if this court finds that a genuine issue of material fact exists as to Chase BankCard's vicarious liability for Mr. Bright's alleged conduct, then Chase BankCard requests that this Court grant partial summary judgment on Plaintiff's punitive damages' claim. RESPECTFULLY SUBMITTED this 1st day of May, 2006. CALDERÓN LAW OFFICES

______s/Faith C. Klepper__________ Ernest Calderón Faith C. Klepper Attorneys for Defendant Chase BankCard Services, Inc.

17

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 17 of 18

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

ORIGINAL of the foregoing filed this 1st day of May, 2006, with: Clerk of the Court United States District Court District of Arizona COPY of the foregoing hand-delivered this 1st day of May, 2006, to: The Honorable Susan R. Bolton COPY of the foregoing mailed this 1st day of May, 2006, to: Mark Brinton 1745 South Alma School Road, Suite 100 Mesa, Arizona 85210-3010 Attorney for Plaintiff

s/Faith C. Klepper

18

Case 2:02-cv-02157-SRB

Document 49

Filed 05/01/2006

Page 18 of 18