Equal Employment Opportunity Commission v. Autozone, Inc., No. 2:2006cv00926 - Document 115 (D. Ariz. 2008)

Court Description: ORDER denying Dft's 79 Motion for Summary Judgment; denying EEOC's 103 Response in Opposition to Motion/Request for an adverse inference; denying as moot EEOC's 108 Motion to Strike; denying as moot EEOC's 112 Motion to Strike. Signed by Judge Stephen M McNamee on 09/10/08.(DNH)

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Equal Employment Opportunity Commission v. Autozone, Inc. 1 Doc. 115 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Opportunity) ) ) ) Plaintiff, ) ) vs. ) ) AutoZone, Inc., a Nevada corporation, ) ) ) Defendant. ) Equal Employment Commission, No. CV 06-926-PHX-SMM ORDER 15 16 17 Pending before the Court is Defendant AutoZone, Inc.’s (“AutoZone”) Motion for 18 Summary Judgement. (Dkt. 79.) Plaintiff Equal Employment Opportunity Commission 19 (“EEOC”) opposes Defendant’s motion on grounds that genuine questions of material fact 20 remain. Fed. R. Civ. P. 56. After careful consideration, the Court finds the following. BACKGROUND 21 22 A. Statement of Facts 23 Stacy Wing (“Wing”) was hired to work at AutoZone Store 2737 (“2737") in the first 24 half of 2003. (Wing Dep. at 46-47.) At the time Wing was hired, Jose Contreras 25 (“Contreras”) was the store manager of 2737. (Def.’s Statement of Material Facts ¶ 2.) 26 Contreras resigned as store manager in December 2003. (Id. ¶ 69.) Within the first month 27 of being employed, Wing reported by phone to the Regional Human Resources Manager in 28 charge of 2737 that she had been sexually harassed by Contreras. (Anderson Dep. at 49.) Dockets.Justia.com 1 At the time, Scott Anderson (“Anderson”) was the Regional Human Resources Manager 2 responsible for 2737. (Def.’s Statement of Material Facts ¶ 17.) Several days thereafter, 3 Anderson went to 2737 to investigate the report. (Id. ¶ 31.) While there, Anderson spoke 4 with Wing, Contreras, and allegedly spoke with several other employees of 2737. (Id. ¶¶ 32, 5 36, 37.) AutoZone could not corroborate Wing’s reports of harassment based on this 6 investigation. (Id. ¶¶ 36, 37.) Anderson did remind Contreras of AutoZone’s policies 7 regarding harassment and retaliation. (Id. ¶ 36.) No other action was taken by Anderson at 8 this time. (Id.) Wing alleges that physical and verbal sexual harassment continued during 9 the remainder of the year. (Wing Dep. at 125-127.) 10 In December 2003, Joe Acuna (“Acuna”), who also worked at 2737, witnessed 11 Contreras sexually harassing Wing in a physical nature. (Def.’s Statement of Material Facts 12 ¶ 49.) Acuna reported his observations to Anderson. (Id.) Anderson confirmed Acuna’s 13 report by watching a surveillance video of the incident. (Id. ¶ 56.) Consequently, Anderson 14 was able to identify Contreras engaging in the sexual harassment. (Id.) Anderson met with 15 and informed Contreras that AutoZone possessed a video of him sexually harassing Wing. 16 (Id. ¶ 68.) Anderson told Contreras “he could either: (1) be suspended during the completion 17 of the investigation and then be fired; or (2) resign immediately.” (Id.) Contreras 18 immediately resigned. (Id. ¶ 69.) 19 Wing claims that after Contreras resigned, she was denied a requested day off and was 20 scheduled for four consecutive 12-hour shifts. (Def.’s Statement of Material Facts ¶ 74.) 21 The day off Wing requested was January 19, 2004; however, Wing does not recall why she 22 requested this day off. (Id. ¶ 75.) Further, Wing does not remember who allegedly denied 23 her request for time off nor what reason was given for the alleged denial. (Id.) The 24 consecutive shifts Wing complains of allegedly occurred between the day she was hired and 25 January 29, 2004. (Wing Dep. at 175-176.) Wing does not recall when the four shifts 26 actually occurred or who scheduled her for the specific shifts. (Id. at 178.) 27 28 -2- 1 Wing further claims that she was denied a promotion for the position of Parts Service 2 Manager (“PSM”) in retaliation for reporting the sexual harassment. (Def.’s Statement of 3 Material Facts ¶ 74.) Wing was initially hired as a part-time customer service representative 4 at 2737. (Wing Declaration ¶ 3.) On February 23, 2004, Wing was promoted to “full-time 5 sales.” (Def.’s Statement of Material Facts ¶ 79.) Thereafter, in 2005, Wing was promoted 6 to the position of commercial specialist. (Id.) Wing did not hold the position of PSM. (Id. 7 ¶ 77.) She twice completed the training required by AutoZone for a promotion to a PSM 8 position. (Wing Declaration ¶ 44; “Pl.’s Local Rule of Practice 56.1(b) Resp. to Def.’s 9 Statement of Facts; Pl.’s Separate Statement of Facts” (“Pl. SoF”) ¶ 112.) The first time 10 Wing completed this training, Contreras was the store manager. (Wing Declaration ¶ 44.) 11 The training occurred sometime after Anderson responded to Wing’s first sexual harassment 12 complaint, but before Acuna lodged his complaint on Wing’s behalf. (See Wing Dep. at 72- 13 77.) Wing claims that Contreras told her the reason she was not promoted to PSM after 14 taking the training was because she had complained about him to Scott Anderson. (Wing 15 Declaration ¶ 46.) After Contreras resigned, a temporary store manager gave Wing the pass 16 code necessary to work as a PSM; however, Wing was not told that she was being promoted 17 to that position. (Id. ¶ 47.) 18 manager. (Id. ¶ 49.) Wing participated in the PSM training a second time under the new 19 store manager, Howard Brown (“Brown”). (Id. ¶ 50.) Wing claims that Brown told her that 20 AutoZone had “no intention of promoting [her] to PSM because [she] had gone to an outside 21 agency.” (Id. ¶ 51.) Wing claims a district manager, Scott Schmitt, told her that she was not 22 being promoted to PSM because she “did not keep [her] mouth shut and had gone to an 23 outside agency.” (Id. ¶ 52.) 24 /// 25 /// 26 /// Shortly thereafter the code was deactivated by a district 27 28 -3- 1 B. Procedural History 2 Wing filed a complaint against AutoZone with the EEOC on January 29, 20041. On 3 March 30, 2006, the EEOC filed suit, on behalf of Stacy Wing, under Title VII of the Civil 4 Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991. (“Compl.”) The 5 EEOC alleged that AutoZone (1) engaged in unlawful employment practices by 6 discriminating against Stacy Wing on the basis of her sex by subjecting her to sexual 7 harassment by a manager thereby creating a hostile work environment, (2) failed to exercise 8 reasonable care to prevent and/or promptly correct the sexual harassment, and (3) engaged 9 in unlawful retaliatory practices by, inter alia, withdrawing a promotion, because she 10 complained of the harassment to the AutoZone Human Resources Department and/or because 11 she assisted or participated in the EEOC investigation of the unlawful sexual harassment. 12 (Id. ¶¶ 7-10.) STANDARD OF REVIEW 13 14 A. Summary judgement 15 A court must grant summary judgment if the pleadings and supporting documents, 16 viewed in the light most favorable to the nonmoving party, “show that there is no genuine 17 issue as to any material fact and that the moving party is entitled to judgment as a matter of 18 law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 19 Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law 20 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 21 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the 22 outcome of the suit under the governing law will properly preclude the entry of summary 23 judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the 24 1 27 This complaint alleged gender discrimination, specifically sexual harassment, and retaliation, “being scheduled for 12 hour shifts for 4 consecutive days, denied off on January 19, 2004, demoted from Parts Sales Manager position and denied full-time benefits even though I work full-time hours.” (Wing Dep. Ex. 6 ) 28 -4- 25 26 1 evidence must be “such that a reasonable jury could return a verdict for the nonmoving 2 party.” Id.; see Jesinger, 24 F.3d at 1130. 3 A principal purpose of summary judgment is “to isolate and dispose of factually 4 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 5 against a party who “fails to make a showing sufficient to establish the existence of an 6 element essential to that party's case, and on which that party will bear the burden of proof 7 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 8 1994). The moving party need not disprove matters on which the opponent has the burden 9 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment 10 need not produce evidence "in a form that would be admissible at trial in order to avoid 11 summary judgment." Id. at 324. However, the nonmovant “may not rest upon the mere 12 allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing 13 that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., 14 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint 15 Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). DISCUSSION 16 17 A. Sexual Harassment 18 Title VII prohibits employers from “discriminat[ing] against any individual with 19 respect to his compensation, terms, conditions, or privileges of employment, because of an 20 individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). This anti-discrimination principle “is 21 violated when sexual harassment is sufficiently severe or pervasive so as to alter the 22 conditions of the victim’s employment and create an abusive working environment.” 23 Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2005) (quoting Meritor Sav. 24 Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Unwelcome sexual advances, requests for 25 sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual 26 harassment when . . . such conduct has the purpose or effect of unreasonably interfering with 27 28 -5- 1 an individual's work performance or creating an intimidating, hostile, or offensive working 2 environment. 29 C.F.R. § 1604.11(a). To be actionable under Title VII, “a sexually 3 objectionable environment must be both objectively and subjectively offensive, one that a 4 reasonable person would find hostile or abusive, and one that the victim in fact did perceive 5 to be so.” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998). 6 As AutoZone has “assumed” the EEOC can establish a claim for prima facie sexual 7 harassment, no further analysis of this issue is necessary for the purpose of this motion. 8 (Def.’s Mem. in Supp. of Mot. for Summ. J. at 10.) 9 B. Vicarious Liability for Sexual Harassment 10 “[A]n employer is subject to vicarious liability to a victimized employee for an 11 actionable hostile environment created by a supervisor with immediate (or successively 12 higher) authority over the employee.” Faragher, 542 U.S. at 807; Burlington Indus., Inc. v. 13 Ellerth, 524 U.S. 742, 765 (1998). “Notice of the sexually harassing conduct triggers an 14 employer's duty to take prompt corrective action that is reasonably calculated to end the 15 harassment.” Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir.2001) (internal quotations 16 omitted). However, the Supreme Court provides a defense against vicarious liability: 17 18 19 20 “[A] defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action.” 21 Faragher, 542 U.S. at 807-808; Ellerth, 542 U.S. at 765. The Court will analyze each 22 element individually. 23 1. Employer Exercised Reasonable Care 24 The Ninth Circuit has held that the first element of the Faragher/Ellerth affirmative 25 defense includes both preventive and remedial measures. Kohler v. Inter-Tel Tech., 244 F.3d 26 1167, 1180-1181 (9th Cir. 2001). “The legal standard for evaluating an employer’s efforts 27 28 -6- 1 to prevent and correct harassment . . . is not whether any additional steps or measures would 2 have been reasonable if employed, but whether the employer’s actions as a whole established 3 a reasonable mechanism for prevention and correction.” Holly D. v. Cal. Inst. of Tech., 339 4 F.3d 1158, 1177 (9th Cir. 2003) (citation omitted). 5 a. Preventive Measures 6 An employer’s adoption and dissemination of an anti-harassment policy can establish 7 that the employer exercised reasonable care to prevent sexual harassment in the workplace. 8 Kohler, 244 F.3d at 1180 (employer had clearly defined definitions, consequences, and 9 reporting procedures for sexual harassment in its policy, ensured employees received and 10 understood the policy on their first day of work, and included a supplemental notice 11 specifically summarizing the policy). 12 The reasonableness of an employer’s efforts can depend on the extent of the 13 dissemination. Faragher, 524 U.S. at 808. In Faragher, the City of Boca Raton had a 14 policy, but failed to adequately disseminate it. Id. at 809. This resulted in the Court holding 15 “as a matter of law that the City could not be found to have exercised reasonable care to 16 prevent the supervisors' harassing conduct.” Id. at 808. 17 AutoZone contends that its efforts to adopt and disseminate a sexual harassment 18 policy are sufficient to meet the preventive element of the Faragher/Ellerth affirmative 19 defense. As support, AutoZone has submitted sections of its 2002 and 2004 Employee 20 Handbooks, each of which contain substantially identical language regarding sexual 21 harassment and reporting procedures therefor. (Def.’s Reply in Supp. of its Mot. for Summ. 22 J. Ex. A.; Statement of Material Facts in Supp. of Mot. for Summ. J. Ex. B.) According to 23 Wing, at some point during her employment, she received an Employee Handbook. (Wing 24 Dep. at 61-62). AutoZone cites Wing’s deposition, which shows evidence that when Wing 25 was hired, she was aware that AutoZone had a policy prohibiting sexual harassment. (Id. at 26 27 28 -7- 1 66.) Wing knew that a procedure existed to report sexual harassment; however, she could 2 not recall exactly what that procedure entailed. (Id.) 3 The EEOC argues that there is no evidence Wing or Contreras received the handbook 4 prior to, or during the time Wing was being sexually harassed by Contreras. (Pl. SOF ¶ 181.) 5 The EEOC further contends there is no evidence Contreras himself ever received training on 6 AutoZone’s sexual harassment policy. (Id. ¶ 182.) Furthermore, the EEOC maintains that 7 there is no evidence that AutoZone trained anyone at the store manager level or below with 8 regard to sexual harassment beyond an initial issuance of the handbook containing the policy. 9 (Arias Dep. at 15-16.) 10 According to the record, the Court agrees that there is no evidence that Contreras 11 knew a sexual harassment policy existed at the time the initial harassment occurred. As to 12 Wing, there is evidence only as to her knowledge of “a policy” and that at some point during 13 her employment, she received the 2004 handbook. Therefore, although a sexual harassment 14 policy may have existed and may have been reasonable on its face, similar to the policy in 15 Kohler, there is no evidence in the instant case of adequate dissemination. As in Faragher, 16 a failure to disseminate can render a policy, reasonable on its face, insufficient to raise an 17 affirmative defense. Therefore, the Court finds that a legitimate question exists as to whether 18 AutoZone’s preventive measures were reasonable for the purpose of asserting a 19 Faragher/Ellerth affirmative defense, and consequently denies AutoZone’s motion for 20 summary judgment. b. 21 Remedial Measures 22 Assuming AutoZone established the first prong of the Faragher/Ellerth affirmative 23 defense, AutoZone must still establish that it took remedial measures to end the sexual 24 harassment. 25 The reasonableness of a remedy for sexual harassment depends on its ability to: (1) 26 stop harassment by the person who engaged therein and (2) persuade potential harassers to 27 28 -8- 1 refrain from sexually harassing conduct. Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 2 875-876 (9th Cir. 2001) (citation omitted). The reasonableness of the remedial measure must 3 track the nature and/or severity of the alleged conduct. See Swenson v. Potter, 271 F.3d 4 1184, 1192-1193 (9th Cir. 2001). When the employer fails to undertake any remedial 5 measure, or where the remedial measure undertaken does not put an end to the current 6 harassment and deter future harassment, liability attaches for both the past harassment and 7 any future harassment. Nichols, 256 F.3d at 875-876. 8 AutoZone contends that, given the information presented, its efforts were reasonable 9 and sufficient to meet the remedial measure element of the Faragher/Ellerth affirmative 10 defense. The EEOC maintains that AutoZone’s efforts in both of the investigations fail to 11 meet its burden under Faragher/Ellerth. To evaluate the reasonableness of AutoZone’s 12 response to the first investigation, the Court must evaluate (1) what conduct AutoZone was 13 responding to and (2) what measures AutoZone took in response to the complaints of 14 harassment by the Plaintiff. See id. Three issues have been raised pertaining to the remedial 15 measures taken by AutoZone; the Court will address each individually. 16 I. Nature of the Harassment 17 Within weeks of being hired, Wing called Anderson, alleging she was being sexually 18 harassed by Contreras. (Wing Dep. at 105-106.) AutoZone claims she complained only of 19 verbal sexual harassment during this phone call. (Anderson Dep. at 49.) AutoZone further 20 contends that, during the subsequent interview at 2737 between the two, Wing complained 21 only of verbal sexual harassment. (Id. at 58.) Wing, however, contends that it was not 22 merely verbal harassment that she complained of. (Wing Dep. at 118.) She argues that her 23 complaint consisted of reports of physical harassment as well. Id. AutoZone claims Wing’s 24 testimony on the subject of what type of harassment is “clear,” and is limited to verbal 25 harassment. (Def.’s Reply in Supp. of its Mot. for Summ. J. at 5.) However, although 26 AutoZone argues Wing only reported verbal sexual harassment, it does acknowledge that 27 28 -9- 1 Wing reported to Anderson the incident wherein Contreras “exposed himself” to her. (Id. 2 at 5 n.6.) The Court finds this act is not “clearly” verbal harassment. Id. Wing contends she 3 told Anderson that Contreras had “physically touched [her] in a sexual manner.” (Wing Dep. 4 at 118.) According to Wing, this interview was preserved in writing, where “[Anderson] 5 would write out a question and then [Wing] would answer it.” Id. at 117. AutoZone has 6 claimed this document has been lost, and therefore is unable to produce a record of the 7 interview. (Pl. SOF ¶ 137.) 8 AutoZone correctly notes that spoliation is a discovery offense. The EEOC’s request 9 for an adverse inference based on this and other lost documents came well after the discovery 10 deadline, therefore the Court will deny this request. However, without this document to 11 clarify a significant discrepancy in material factual recollections, the record consists of two 12 contradictory statements regarding what was said during the phone call and what was 13 reported and discussed at the subsequent interview. As the substance of these conversations 14 would be material in evaluating the reasonableness of the remedial measures taken by 15 AutoZone in response to Wing’s allegations, the discrepancy in material facts is sufficient 16 to establish a legitimate question of fact. The Court therefore denies AutoZone’s motion for 17 summary judgement on this issue. 18 ii. Method of Investigation 19 AutoZone argues the “pertinent legal issue is what Mr. Anderson did upon receiving 20 the [initial] report.” (Def.’s Reply in Supp. of its Mot. for Summ. J. at 5.) It is undisputed 21 that Anderson went to 2727 shortly after receiving the initial report and interviewed Wing. 22 (Def.’s Statement of Material Facts ¶ 31.) During the interview, Wing provided Anderson 23 with the names of five employees of 2737 who she claimed would corroborate her 24 allegations. (Anderson Dep. at 60-61.) The names included: Luz Hernandez (now Luz 25 Gomez), Steve Corbeil, Raiza Bracho, Hector Barajas, and Justin Pierce. Id. AutoZone 26 claims Anderson interviewed all five of these potential witnesses, as well as Contreras. (Id. 27 28 - 10 - 1 at 65-66.) Each of these interviews were allegedly identical in form: “getting a verbal 2 statement and then following that up in writing with where [sic] [Anderson] would write 3 questions and [the employee] would write answers.” Id. at 67. According to AutoZone, 4 Anderson gathered all of these statements and sent them to AutoZoner Relations (part of 5 AutoZone’s corporate counsel). Id. at 76-77. Anderson claims the allegations could not be 6 corroborated. Id. at 70. 7 The EEOC, however, claims a legitimate issue exists as to whether AutoZone 8 conducted a reasonable investigation because AutoZone has no records pertaining to Wing’s 9 sexual harassment claim, thereby prohibiting the EEOC, as well as this Court, from 10 evaluating its reasonableness. (Pl.’s Resp. to Def.’s Mot. for Summ. J. at 8.) Further, the 11 EEOC alleges Anderson’s investigation cannot be as complete as he has claimed. Id. Both 12 Luz Hernandez and Hector Barajas have stated that the only time they spoke to anyone 13 regarding sexual harassment between Wing and Contreras was “around the time Contreras 14 was fired.” (Barajas Dep. at 30; Gomez Declaration ¶ 8.) Contreras left AutoZone as a result 15 of a separate investigation of sexual harassment approximately seven months after Anderson 16 claims his initial investigation occurred. (Def.’s Statement of Material Facts ¶¶ 63-69.) 17 In response, AutoZone claims that a legitimate issue of material fact cannot be created 18 by someone’s inability to recall information. (Def.’s Reply in Supp. of its Mot. for Summ. 19 J. at 5 n.7.) For example, AutoZone claims that because Gomez and Barajas cannot 20 remember speaking with Anderson does not mean it did not occur. In support of its 21 assertion, AutoZone cites two unpublished opinions: Flores v. First Penn Pac. Life Ins., 215 22 F.3d 1332 (9th Cir. 2000) (not reported in F.3d) and Mercon Coffee Corp. v. Beanbag 23 Storage Co., 1992 WL 1352743 (N.D. Cal. 1992))2. In both Flores and Mercon Coffee, the 24 25 2 27 This Court is not bound by unpublished opinions. Further, AutoZone’s reliance on the aforementioned cases is misplaced, as even a cursory reading of the facts of those cases reveals they are inapposite to the case before the Court. 28 - 11 - 26 1 courts found the plaintiffs’ inability to recall a discussion or terms of a document were 2 directly contradicted by documentation that they had made those statements and were aware 3 of what they were doing when they did so. Mercon, 1992 WL 1352743, *1; Flores, 215 F.3d 4 at 1332, *1. In the present case, AutoZone’s inability to retain or locate the documentation 5 of Anderson’s investigations necessarily cannot provide the type of support the courts relied 6 on in AutoZone’s cited cases. The Court therefore denies AutoZone’s motion for summary 7 judgment on this issue. iii. 8 Sufficiency of Remedial Measures 9 The sufficiency of the remedial measures undertaken by AutoZone is entirely 10 dependent on the nature of the allegations. Swenson, 271 F.3d at 1192-1193. It is impossible 11 to evaluate the reasonableness of this element when the nature of the allegations remains 12 disputed. As this Court has ruled above that material questions remain with regard to what 13 the initial complaints made by Wing to Anderson were, the Court will deny AutoZone’s 14 motion for summary judgment on this issue. 15 2. Employee Unreasonably Failed to Take Advantage 16 The second element of the Faragher/Ellerth defense is met when an employer has a 17 complaint or reporting procedure designed to handle sexual harassment claims, and the 18 employee unreasonably fails to take advantage of it. Faragher, 542 U.S. at 807-808. 19 AutoZone argues that Wing’s “conduct in waiting to make an initial report and then failing 20 to make any subsequent report is unreasonable as a matter of law.” (Def.’s Mem. in Supp. 21 for Mot. for Summ. J. at 13.) 22 To bolster its position, AutoZone cite three cases to provide examples of employee 23 conduct that courts have deemed unreasonable. Hardage, 427 F.3d at 1188; Molly D., 339 24 F.3d at 1178; Molina v. Phoenix High School Dist., 2007 WL 1412530, *8 (D. Ariz. 2007) 25 (J. McNamee). In Hardage, the employee waited six (6) months to report the harassment; 26 the plaintiff in Molly D. waited an entire year. Wing, on the other hand, reported being 27 28 - 12 - 1 sexually harassed to Jim Monti, the district manager responsible for 2737, “shortly after 2 [she] started working [at AutoZone]”, and then received Anderson’s phone number. (Wing 3 Dep. at 43; Def.’s Statement of Material Facts ¶ 19.) At most, Wing waited “a couple of 4 weeks” to call Anderson to report Contreras’s sexual harassment. (Def.’s Statement of 5 Material Facts ¶¶ 23-24.) In Molina, the employee “acknowledged receiving the [Employee 6 Conduct/Discipline] Handbook, reading the portions regarding Defendant's harassment 7 policy and understanding the procedure for reporting sexual harassment” and “admitted to 8 being aware of the policies and procedure set forth in the Handbook” and yet “did not follow 9 the reporting procedures set forth in the Handbook.” Molina, 2007 WL 1412530, *7-8. In 10 the instant case, there remains an issue as to when Wing received AutoZone’s handbook 11 which contained the sexual harassment policy.3 See discussion supra at 7-8. Assuming 12 arguendo that Wing did receive the handbook at the time she was hired, the evidence remains 13 that Wing was aware that steps existed to report sexual harassment, but could not recall what 14 those steps were. (Wing Dep. at 66) (emphasis added). This distinguishes Wing’s 15 “understanding” of the procedure and “awareness” of the reporting policies from the plaintiff 16 in Molina. 17 AutoZone further contends that Wing’s failure to make subsequent reports of the 18 ongoing sexual harassment constitutes unreasonable failure. Wing alleges she left three 19 messages for Anderson following his initial investigation, however Anderson failed to return 20 her calls. (Wing Dep. at 144-150.) Anderson denies such messages existed. (Anderson Dep. 21 103-104.) Further, the Ninth Circuit has continuously held that “harassment is to be 22 remedied through actions targeted at the harasser, not at the victim.” Intlekofer v. Turnage, 23 973 F.2d 773, 780 (9th Cir. 1992) (emphasis in original); Nichols, 256 F.3d at 876 24 (employee’s failure to report further harassment was not a defense to liability). The Court 25 26 3 27 Either the 2002 or 2004 handbook, as they are substantively identical regarding sexual harassment policies. 28 - 13 - 1 finds a genuine issue of material fact exists as to whether Wing acted reasonably in her 2 attempts to contact AutoZone, and consequently denies AutoZone’s motion for summary 3 judgment on this issue. 4 3. Presence of Tangible Employment Action 5 A tangible employment action constitutes a significant change in employment status, 6 such as hiring, firing, failing to promote, reassignment with significantly different 7 responsibilities, or a decision causing a significant change in benefits. Ellerth, 524 U.S. at 8 761. When bringing a suit against an employer in district court, “a plaintiff must have raised 9 that claim or a like and reasonably related claim in an administrative action.” Yamaguchi v. 10 U.S. Dept. of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997). This liberal reading of the 11 administrative charge has been recognized in the circuit for decades: “When an employee 12 seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial 13 complaint nevertheless may encompass any discrimination like or reasonably related to the 14 allegations of the EEOC charge . . .” Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 15 571 (9th Cir. 1973) (recognizing federal subject matter jurisdiction over claims of action not 16 explicit in the original EEOC charge). Title VII sets up a “remedial scheme in which 17 laypersons, rather than lawyers, are expected to initiate the process.” See Fed. Exp. Corp. 18 v. Holowecki, 552 U.S. ____, 128 S.Ct. 1147, 1158 (2008) (citations omitted). 19 The EEOC alleges AutoZone “withdr[ew] Ms.Wing’s promotion to a [PSM] 20 position.” (Compl. ¶ 10.) This claim is essentially identical to a failure to promote claim, 21 which is explicitly recognized in Ellerth as a tangible employment action. Ellerth, 524 U.S. 22 at 761. AutoZone challenges the EEOC’s assertion of a failure to promote claim as a 23 tangible employment action. (Def.’s Reply in Supp. of its Mot. for Summ. J. at 6.) It 24 correctly states that Wing originally alleged she was “demoted from [her] [PSM] position.” 25 (Wing Dep. Ex 6.) AutoZone is correct that a “demotion claim is completely distinct from 26 that of a failure to promote claim.” (Def.’s Reply in Supp. of its Mot. for Summ. J. at 7) 27 28 - 14 - 1 (emphasis in original). However, given the liberal interpretation mandated by precedent, this 2 Court will not hold a lay-complainant to a practitioner’s standard when making allegations 3 in an EEOC complaint that may, unbeknownst to the claimant, have a specific meaning as 4 a legal term of art. Consequently, this Court finds a claim of retaliatory demotion to be “like 5 or reasonably related” to a claim of retaliatory failure to promote. Serpe v. Four-Phase Sys., 6 Inc., 718 F.2d 935, 937 (9th Cir. 1983). 7 The only support AutoZone offers for its position is an unreported, district case: 8 EEOC v. Rest. Mktg. Assoc., Inc. 1983 WL 608 (D. Ariz. 1983). The Court finds 9 AutoZone’s reliance on this case misplaced. In Restaurant Marketing Associates, the court 10 erroneously mentioned the “Ninth Circuit has never been faced with a case which presents 11 the question of whether charges outside those asserted in the determination letter are 12 allowable in a subsequent action by the E.E.O.C.” Id., *1. The Circuit had, two months prior 13 to the decision in Restaurant Marketing Associates, held “[t]he EEOC charges must be 14 construed with utmost liberality since they are made by those unschooled in the technicalities 15 of formal pleading.” Serpe, 718 F.2d at 937. Within the case AutoZone has cited, the court 16 quoted a Sixth Circuit opinion, “[i]t is clear that the recitation of a claim in the determination 17 letter is not a prerequisite to the assertion of such claim by a private litigant. This Court has 18 not been presented with a sufficient justification for applying a different rule with regard to 19 claims made by the E.E.O.C. We therefore decline to hold that the recitation of each claim 20 of discrimination is a rigid prerequisite to the assertion of those claims by the E.E.O.C. at 21 trial.” Rest. Mktg. Assoc., Inc. 1983 WL 608, *1-2. 22 The Court finds the alleged reasons for AutoZone’s failure to promote Wing, if 23 proven, would constitute a tangible employment action, thereby preventing AutoZone from 24 raising the defense set forth in Faragher/Ellerth. Questions of material fact remain regarding 25 why Wing was not promoted to a PSM position. Therefore, the Court will deny AutoZone’s 26 motion for summary judgment on this issue. 27 28 - 15 - 1 C. Retaliation 2 Employers are prohibited from discriminating or retaliating against an employee if 3 that employee has “opposed any . . . unlawful employment practice . . . [or] because he has 4 made a charge, testified, assisted, or participated in any manner in an investigation . . .” 42 5 U.S.C.A. § 2000e-3(a). To succeed on a retaliation claim, “a plaintiff must show that a 6 reasonable employee would have found the challenged action materially adverse, which . . 7 .means it well might have dissuaded a reasonable worker from making or supporting a charge 8 of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). 9 To establish a prima facie case of retaliation, a plaintiff must show (1) the plaintiff 10 engaged in a protected action, such as filing a charge with the EEOC, (2) the defendant 11 subjected the plaintiff to an adverse employment action, and (3) a causal link exists between 12 the protected action and the adverse action. See Hardage, 427 F.3d at 1188 (citations 13 omitted). If the plaintiff can make a prima facie claim, the burden shifts to the defendant to 14 articulate a legitimate, nondiscriminatory reason for the adverse action. Manatt v. Bank of 15 Am., NA, 339 F.3d 792, 800 (9th Cir. 2003) (citation omitted). When the defendant 16 articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the 17 given reason was merely a pretext for defendant’s discriminatory motive. Id. “[O]nly 18 non-trivial employment actions that would deter reasonable employees from complaining 19 about Title VII violations will constitute actionable retaliation.” Hardage, 427 F.3d at 1188. 20 Wing’s reporting to her superiors of the alleged harassment and the subsequent 21 reporting to the EEOC, as recognized in Hardage, meets the criteria of a protected action. 22 Wing believes she was denied a promotion. If she subjectively believed the denial was a 23 punitive measure resulting from her complaints, it “might have dissuaded a reasonable 24 worker from making or supporting a charge of discrimination” and constitute an adverse 25 employment action. Wing alleges that she was told by superiors at AutoZone on three 26 separate occasions that the reason she was not being promoted was due to her reporting of 27 28 - 16 - 1 sexual harassment. (Pl’s SOF ¶¶ 113, 118, 119.) In response, AutoZone requests dismissal, 2 claiming, without further proof or argument, “the EEOC has no evidence of any causal 3 connection between any alleged adverse employment action and protected activity.” (Def.’s 4 Reply in Supp. of its Mot. for Summ. J. at 8.) 5 nondiscriminatory reason for the action. Assuming all facts in favor of the nonmovant, as 6 the Court is required to do, this would constitute a causal link between the protected 7 complaint and the adverse employment action. Because AutoZone failed to articulate a 8 legitimate, nondiscriminatory reason, AutoZone’s motion for summary judgment will be 9 denied. 10 It has articulated no legitimate, CONCLUSION 11 In light of the reasons set forth above, 12 IT IS HEREBY ORDERED DENYING Defendants’s Motion for Summary 13 14 15 16 17 18 Judgment. (Dkt. 79.) IT IS FURTHER ORDERED DENYING the EEOC’s request for an adverse inference. (Dkt. 103.) IT IS FURTHER ORDERED DENYING as MOOT EEOC’s Motions to Strike (Doc. 108 and 112).4 DATED this 10th day of September, 2008. 19 20 21 22 23 24 4 27 The Court finds that based on the supplementary briefs provided to the court, Handbook 2002 and Handbook 2004 are substantively identical, and therefore the failure of AutoZone to initially provide Handbook 2002 amounts to harmless error. Furthermore, the Court finds that a surreply is not necessary as the Court has addressed and resolved the issues within the summary judgment discussion, supra. 28 - 17 - 25 26

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