Campbell-Thomson v. Cox Com, Inc, No. 2:2008cv01656 - Document 68 (D. Ariz. 2010)

Court Description: ORDER granting in part and denying in part 40 Cox's Motion for Summary Judgment, see PDF document for details; denying 42 Plaintiff's Motion for Summary Judgment on her FLSA claims. IT IS FURTHER ORDERED denying as moot 67 parties Stipulation to temporarily hold the Court's decision on the pending motions and to modify the Court's scheduling order. Signed by Judge G Murray Snow on 5/4/10.(LSP)

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Campbell-Thomson v. Cox Com, Inc 1 Doc. 68 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sheila C. Campbell-Thomson, 10 Plaintiff, 11 vs. 12 Cox Communications, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-08-1656-PHX-GMS ORDER 15 16 Pending before the Court are the parties’ competing motions for summary judgment. 17 (Dkt. ## 40, 42.) As set forth below, the Motion of Plaintiff Sheila C. Campbell-Thompson 18 (“Plaintiff”) is denied and the Motion of Defendant Cox Communications (“Cox” or the 19 “Company”) is granted in part and denied in part.1 BACKGROUND 20 21 Plaintiff began working for Cox in June 1996 as a Field Service Representative. (Dkt. 22 # 52 at ¶ 1.) In September 2005, Plaintiff voluntarily transferred from the Field Operations 23 Department to work in Cox’s Sales Department as a Customer Loyalty Representative 24 (“CLR”). (Id. at ¶ 2.) Shortly after Plaintiff joined the Sales Department, she began to 25 complain to her supervisors and to Human Resources that she was required to work overtime 26 27 28 1 The parties’ requests for oral argument are denied as the Court has determined that oral argument will not aid in its decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). Dockets.Justia.com 1 hours without commensurate compensation. (See Dkt. # 52.) After management failed to take 2 action, Plaintiff filed a formal complaint with the United States Department of Labor, 3 asserting that the Company denied overtime compensation to CLRs. (Id. at ¶ 128.) 4 Ultimately, Plaintiff recovered $3,599.55 in unpaid overtime wages from Cox. (Id. at ¶ 182.) 5 As a member of the Sales Department, Plaintiff was responsible for contacting Cox 6 customers who were dissatisfied with their internet and cable services and for attempting to 7 persuade them to retain these services. (Id. at ¶13.) When customers decided to cancel, 8 Plaintiff was responsible for disconnecting their service and retrieving Cox’s equipment, if 9 necessary, from the customers’ property. (Id. at ¶ 14.) Each CLR was also assigned a specific 10 geographic zone in which he or she worked to “save” dissatisfied customers, solicit sales, and 11 disconnect services. (See id.) During her time as a CLR in the Sales Department, Plaintiff 12 reported to Ray Williams, her team leader. (Id. at ¶ 7.) Mr. Williams in turn reported to 13 Lenny Trujillo, the Area Team Manager for the Sales Department. 14 Approximately six months after Plaintiff became a CLR, she and her fellow CLRs 15 attended a team meeting with Mr. Williams. (Dkt. # 52 at ¶ 111.) During this meeting, Mr. 16 Williams apparently became upset and “screamed” at the CLRs for their failure to comply 17 with new scheduling guidelines that had been implemented in March 2006. (Id. at ¶ 114.) 18 The CLRs, including Plaintiff, were concerned that the new scheduling guidelines were too 19 demanding and required them to work as many as fifteen hours a day without overtime pay. 20 (Id. at ¶¶ 114–117.) When Plaintiff voiced her concerns about the lack of overtime 21 compensation, Mr. Williams responded by calling her a “f*****g b***h.” (Id. at ¶ 117.) 22 After Mr. Williams made this comment, Plaintiff promptly left the meeting and vomited in 23 an employee restroom. (Id.; Dkt. # 43 at ¶ 13.) Mr. Williams then stated to those present at 24 the meeting that Plaintiff “should be f*****g fired for walking out of the meeting.” (Dkt. # 25 52 at ¶ # 119.) 26 A few weeks after this meeting, Mr. Williams announced that he was in the process 27 of reconfiguring and reassigning his team’s geographic work zones. (Id. at ¶ 74.) According 28 to Cox, Mr. Williams, with the help of three CLRs, decided to change the boundaries of the -2- 1 team’s eleven geographic work zones to more evenly distribute workload and to maximize 2 potential revenue. (Id. at ¶¶ 81–82.)2 Once the geography of the new zones was decided 3 upon, each CLR was allowed to bid on the work zone he or she desired. (Id. at ¶ 74.) The 4 bidding order was determined by “a stacked ranking of each CLR’s sales, saves[,] and 5 disconnects.” (Id.) Based on her ranking, seven CLRs bid before Plaintiff, and three or four 6 bid after her. (Id. at ¶ 93.) And though Plaintiff had the choice of three to four other zones, 7 including a geographically contiguous zone, she ultimately selected a non-contiguous 8 geographic zone that included parts of Phoenix and Scottsdale. (Id. at ¶ 94–95.) 9 Shortly after selecting her zone, Plaintiff began to complain that she was assigned to 10 a “dead zone” because it contained a large number of apartment complexes, low-income 11 housing, and winter residents. (Id. at ¶ 98.) Nonetheless, in spite of these challenges, 12 Plaintiff’s sales statistics improved in her new zone, and her bid ranking rose when the team 13 rebid in July 2009, just ninety days after the first bid. (Id. at ¶ 104–105.) Where Plaintiff was 14 near the bottom of the bidding order in April, she was now ranked toward the middle of the 15 list. (Id. at ¶ 105.) During the second bid, Plaintiff had the choice of at least six other zones, 16 including more affluent and geographically contiguous areas; nevertheless, Plaintiff selected 17 the same non-contiguous geographic zone that she selected during the first bid. (Id.) In her 18 Complaint, Plaintiff alleges that she was “assigned” this work zone in a deliberate attempt 19 to limit her productivity and to provide Cox with a reason to fire her. (See Dkt. # 1 at ¶ 10.) 20 21 22 23 24 25 26 27 28 2 Plaintiff raises the best evidence rule in objection to Cox’s evidence regarding the nature of the geographic zones. (Dkt. # 52 at ¶¶ 76, 81, 97.) Plaintiff’s objection, however, is premised on a misunderstanding of the rule. See United States v. Gonzales-Benitez, 537 F.2d 1051, 1053–54 (9th Cir. 1976) (holding that the best evidence “rule [is] applicable only when one seeks to prove the contents of documents or recordings”) (citing Fed. R. Evid. 1002). While Plaintiff asserts that the best evidence rule requires Cox to submit a map of each zone, the contents of a map are not at issue. See id. Instead, the relevant factual inquiry concerns the configuration of the geographic zones. Testimony from those who configured and who are familiar with the geographic zones is therefore admissible to establish the nature of these zones. See id. -3- 1 Plaintiff also asserts that Cox denied her request to transfer from the Sales Department 2 based on her complaints regarding overtime. From April to September of 2006, Plaintiff 3 made several requests to transfer back to the Field Operations Department. (Dkt. # 52 ¶ 41.) 4 The transfer was rejected, however, because Cox’s internal policy requires that employees 5 work in their current position for a minimum of twelve months in order to be eligible to apply 6 for an internal transfer. (Id. at ¶ 38) The only exception to the twelve month minimum 7 requires an employee to obtain approval from his or her current department as well as from 8 the department into which the employee desires to transfer. (Id. at ¶ 39.) According to Cox, 9 the Sales Department consented to a possible transfer, but the Field Operations Department 10 denied Plaintiff’s request because the Department was overstaffed and because the managers 11 of Field Operations, Frank LaSpisa and John Dolezal, felt that Plaintiff was unable to 12 perform the requirements of the position due to her health. (Dkt. # 41 at 49.) Cox further 13 presents evidence that Mr. LaSpisa and Mr. Dolezal were unaware of Plaintiff’s overtime 14 complaints when they denied the transfer. (See id. at ¶¶ 10–12.) 15 Shortly after Plaintiff’s transfer request was denied, Mr. Williams became concerned 16 that Plaintiff had performed “false disconnects” in her zone. (Dkt. # 52 at ¶ 146.) A false 17 disconnect occurs when a CLR certifies that he or she disconnected a customer’s cancelled 18 service, but fails to actually do so. Because CLRs are paid a commission for disconnecting 19 cancelled services, Cox considers performing false disconnects to be a terminable offense. 20 (Id. at ¶ 134.) According to Cox, a December 2006 internal audit revealed that Plaintiff had 21 coded several customer accounts as disconnected even though it was discovered that these 22 accounts were still connected to Cox’s services. (Id. at ¶ 146.) Plaintiff, however, asserts that 23 she never performed any false disconnects and that it was not uncommon for a CLR to 24 disconnect a customer’s service only to have that customer illegally reconnect and steal 25 services. (Id. at ¶ 134.) On January 8, 2007 Mr. Williams and Mr. Trujillo met with Plaintiff 26 to discuss the alleged false disconnects. (Id at ¶ 152.) They also showed her documentary 27 evidence demonstrating that the supposedly disconnected accounts were still active. (Id.) 28 When Plaintiff attested that she had documentary evidence demonstrating that she performed -4- 1 the disconnects in question, Mr. Williams and Trujillo gave her until 6:00 p.m. that day to 2 present the exonerating evidence. (Id. at ¶ 153.) And while Plaintiff presented “route sheets, 3 signed work orders, pictures, [and] apartment maps” showing that she actually performed the 4 work, Cox relied on the internal audit and terminated Plaintiff the next morning. (Id. at 5 ¶¶ 156, 160, 161, 164.) According to Plaintiff, Cox fabricated the audits as an excuse to fire 6 her. 7 Following her termination from Cox, the Company told Plaintiff that she was not 8 eligible for rehire because she was fired for committing fraud. (Dkt. # 52 at ¶ 185.) Given her 9 employment experience, Plaintiff decided to apply for positions with five other 10 telecommunications companies in the Phoenix area: End2End Communications, Sunshine 11 Communications, Cable Enterprises, Micor, and TriWire Communications. (Dkt. # 52 at 12 ¶¶ 192, 197, 200, 203, 207.) Each of these prospective employers, however, rejected 13 Plaintiff’s application. (Id.) According to Plaintiff, these employers were unlawfully 14 influenced by Cox, who allegedly told the employers that Plaintiff was ineligible for rehire. 15 (See id.) Plaintiff further asserts that Cox unlawfully listed her as ineligible for rehire because 16 Mr. Williams allegedly knew that Plaintiff never falsified any disconnects. (See Dkt. # 51.) 17 Plaintiff now claims that her complaints regarding overtime compensation led the 18 Company to take several actions that materially impacted her employment. (Dkt. # 1.) 19 Specifically, Plaintiff alleges that Cox violated the retaliation provisions of the Fair Labor 20 Standards Act, 29 U.S.C. 215 (“FLSA”). (Dkt. # 1.) She also complains that the Company 21 unlawfully interfered with contractual relations between Plaintiff and prospective employers 22 following her termination from Cox. (Id.) On December 4, 2009, Plaintiff and Cox filed 23 competing Motions for Summary Judgment on these claims. (Dkt. ## 40, 42.) 24 LEGAL STANDARD 25 Summary judgment is appropriate if the evidence, viewed in the light most favorable 26 to the nonmoving party, shows “that there is no genuine issue as to any material fact and that 27 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Substantive law 28 determines which facts are material[] and “[o]nly disputes over facts that might affect the -5- 1 outcome of the suit under the governing law will properly preclude the entry of summary 2 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Jesinger v. Nev. 3 Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). The dispute must also be genuine, 4 that is, the evidence must be “such that a reasonable jury could return a verdict for the 5 nonmoving party.” Anderson, 477 U.S. at 248. 6 The moving party “bears the initial responsibility of informing the district court of the 7 basis for its motion, and identifying those portions of [the record] which it believes 8 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 9 U.S. 317, 323 (1986). The moving party, however, need not disprove matters on which the 10 opponent has the burden of proof at trial. Id. at 323. In such cases, the burden is on the 11 nonmoving party to establish a genuine issue of material fact. Id. at 322–23. The nonmoving 12 party “may not rest upon the mere allegations or denials of [the party’s] pleadings, but . . . 13 must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 14 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). 15 DISCUSSION 16 Genuine issues of material fact preclude summary judgment on Plaintiff’s FLSA claim 17 to the extent that Plaintiff asserts that Cox terminated her in violation of the Statute and that 18 Cox told prospective employers, without a good faith basis, that she was ineligible for rehire. 19 Genuine issues of material fact also preclude summary judgment on Plaintiff’s tortious 20 interference with contractual relations claim. 21 I. Plaintiff’s Retaliation Claim 22 A. Legal Framework for FLSA Retaliation Claims 23 Under the FLSA, employers are required to pay eligible “employees one and one-half 24 times their regular rates of pay” when those employees work overtime hours. See Mamola 25 v. Group Mfg. Servs. Inc., 2010 WL 1433491, at *11 (D. Ariz. April 9, 2010) (citing Ogden 26 v. CDI Corp., 2009 WL 4508502, at *1 (D. Ariz. Dec. 1, 2009)). The FLSA further makes 27 it unlawful “to discharge or in any other manner discriminate against any employee because 28 such employee has filed any complaint or instituted or caused to be instituted any proceeding -6- 1 under or related to this chapter.” 29 U.S.C. § 215(a)(3). Claims for retaliation under this 2 provision are subject to the burden-shifting analysis applied under Title VII of the Civil 3 Rights Act or 1964, 42 U.S.C. 2000e-7 (“Title VII”). See Spata v. Smith’s Food & Drug 4 Ctrs., Inc., 253 F. App’x 648, 649 (9th Cir. 2007); Conner v. Schnuck Mkts., Inc., 121 F.3d 5 1390, 1394 (10th Cir. 1997).3 6 Under this burden shifting approach, a plaintiff must first set forth a prima facie case 7 of retaliation. See E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1004–05 8 (9th Cir. 2002); Spata, 253 F. App’x at 649. This requires the plaintiff to show (1) that she 9 engaged in protected activity, (2) that she suffered a materially adverse employment action, 10 and (3) a causal connection between the two. Luce, 303 F.3d at 1005; see Surrell v. Cal. 11 Water Serv., 518 F.3d 1097, 1108 (9th Cir. 2008). An employee engages in a protected 12 activity when she participates in conduct that reasonably could be perceived as directed 13 toward the assertion of rights protected by the statute. See Lambert v. Ackerley, 180 F.3d 997, 14 1004 (9th Cir. 1999) (en banc), cert. denied, 528 U.S. 1116 (2000). Such conduct not only 15 includes formal complaints with a court or the Department of Labor, but also informal 16 complaints to an employer. See Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151 17 (9th Cir. 2000) (citation omitted). An employment action is cognizable as adverse when “it 18 is reasonably likely to deter employees from engaging in protected activity.” See Ray v. 19 20 21 22 23 24 25 26 27 28 3 Plaintiff also contends that she can prove retaliation using the Supreme Court’s “mixed-motive” test set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Even assuming the Price Waterhouse test is viable in the context of the FLSA, it not applicable in this case because Plaintiff “has not come forward with direct evidence of causation.” See Pearson v. City of Big Lake, Minn., ___ F. Supp.2d ___, 2010 WL 681847, at *26 n. 3 (D. Minn. 2010). While Mr. William’s offensive remarks following Plaintiff’s complaint about overtime pay arguably constitute “‘direct evidence of [a] retaliatory motive,’” such evidence “is insufficient to trigger Price Waterhouse.” See id. (quoting Conner v. Schnuck Mkts., Inc., 906 F. Supp. 606, 612 (D. Kan. 1995) (observing that direct evidence of causation, rather than direct evidence of discriminatory animus, is necessary to trigger the “mixed-motive test”), aff’d, 121 F.3d 1390 (10th Cir. 1997)); cf. Price Waterhouse, 490 U.S. at 257 (holding that “mixed motive” analysis is only available when an employee brings forth “direct evidence” that participation in a protected activity “contributed” to the adverse employment decision). -7- 1 Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The causal link at the prima facie stage is 2 construed broadly; a plaintiff must merely “prove that the protected activity and the negative 3 employment action are not completely unrelated.” See Poland v. Chertoff, 494 F.3d 1174, 4 1181 n. 2 (9th Cir. 2007). 5 Once a plaintiff establishes her prima facie case, the burden shifts to the employer to 6 articulate a legitimate explanation for its decision that is non-retaliatory. See Steiner v. 7 Showboat Operating Co., 25 F.3d 1459, 1464–65 (citations omitted); see also Spata, 253 F. 8 App’x at 649. To meet this burden, “the employer need only produce admissible evidence 9 which would allow the trier of fact rationally to conclude that the employment decision had 10 not been motivated by [retaliatory] animus.” See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 11 U.S. 248, 257 (1981); see also Steiner, 25 F.3d at 1464–65 (applying this standard in the 12 context of a retaliation claim). 13 If the employer satisfactorily sets forth a legitimate explanation for its employment 14 decision, the burden then shifts back to the plaintiff to present evidence that the employer’s 15 reason is pretext for retaliation. See Steiner, 25 F.3d at 1464–65 (holding that a plaintiff “has 16 the ultimate burden of showing that [defendant’s] proffered reasons are pretextual”); see also 17 Spata, 253 F. App’x at 649. To demonstrate pretext, a plaintiff must show that a retaliatory 18 “reason more likely motivated the employer,” or “that the employer’s proffered explanation 19 is unworthy of credence.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 20 2002). To show that an employer was more likely motivated by a discriminatory or 21 retaliatory motive, a plaintiff must present direct or circumstantial evidence of the employer’s 22 allegedly illegal motive. See id. “[V]ery little evidence,” however, “is necessary to raise a 23 genuine issue of fact regarding an employer’s motive; any indication of [an improper] motive 24 . . . may suffice to raise a question that can only be resolved by a fact-finder.” McGinest v. 25 GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004) (internal quotations and citations 26 omitted). “To satisfy the unworthy of credence test, a plaintiff must identify specific 27 inconsistencies, contradictions, implausibilities, or weaknesses in the employer’s explanation 28 so that a reasonable fact finder could infer that the employer did not act for the asserted -8- 1 reason. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005); 2 see also Hernandez v. Arizona, ___ F. Supp.2d ___, 2010 WL 1193727, at *9 (D. Ariz. 3 2010); Mamola, 2010 WL 1433491, at *6. Where the parties rely on circumstantial evidence 4 of pretext, that evidence must be sufficiently “specific and substantial” to “raise a genuine 5 issue of material fact under Rule 56(c).” Cornwell v. Electra Cent. Credit Union, 439 F.3d 6 1018, 1029 (9th Cir. 2006). 7 B. Analysis: Genuine Issues of Material Fact Preclude Summary Judgment with Respect to Some Aspects of Plaintiff’s FLSA Retaliation Claim. 8 Plaintiff asserts that Cox retaliated against her for raising concerns about overtime 9 compensation. Specifically, Plaintiff claims that Cox’s conduct was retaliatory on five 10 occasions: When (1) Mr. Williams called Plaintiff a derogatory name and threatened to fire 11 her; (2) Mr. Williams assigned Plaintiff to a non-contiguous and unproductive work zone; 12 (3) Cox managers denied Plaintiff’s request to transfer back to the Field Operations 13 Department; (4) Mr. Williams and his team conducted “false audits” of Plaintiff’s work and 14 terminated her employment; and (5) Cox told prospective employers that Plaintiff was not 15 eligible for rehire. (Dkt. # 52 at 5.) Under the burden-shifting test for retaliation, Plaintiff’s 16 fourth and fifth claims withstand summary judgment. 17 (1) Mr. William’s Offensive Comment and Threat to Plaintiff 18 Plaintiff first presents evidence that a member of Cox’s management team called her 19 an offensive name and later threatened to terminate her. (Dkt. ## 40, 42.) These facts, 20 however, are insufficient to set forth a prima facie case of retaliation because derogatory 21 comments and unfulfilled threats are not adverse employment actions under the FLSA. 22 Under employment statutes such as the FLSA, snide remarks, increased criticism, 23 offensive utterances, and derogatory statements do not constitute adverse employment 24 actions. Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1189 (9th Cir. 2005) amended by 433 25 F.3d 672 (2006), and 436 F.3d 1050 (2006); see Nunez v. City of L.A., 147 F.3d 867, 875 (9th 26 Cir. 1998) (holding that “harsh words” and “badmouthing” are insufficient to constitute an 27 adverse employment action); Davis v. Verizon Wireless, 389 F. Supp.2d 458, 478 (W.D. N.Y. 28 -9- 1 2005) (holding that “name calling” does not constitute an adverse employment action as 2 required to establish a retaliation claim); cf. Fry v. Am. Italian Pasta Co., 2007 WL 1113673, 3 at *4 (D. S.C. 2007) (granting summary judgment in favor of an employer who called the 4 plaintiff a “stupid f*****g b***h” because the comment “was not sufficiently severe or 5 pervasive” under Title VII). 6 Similarly, Plaintiff’s evidence that Mr. Williams wanted to terminate her for making 7 “unethical sales” is insufficient to raise a FLSA retaliation claim. (Dkt. # 51 at 6.) As the 8 Ninth Circuit has repeatedly reiterated, “the mere threat of termination does not constitute 9 an adverse employment action.” Hellman v. Weisberg, 2009 WL 5033643, at *2 (9th Cir. 10 Dec. 23, 2009) (citing Hardage, 427 F.3d at1189 (holding that thinly veiled threats were not 11 enough to constitute retaliation under Title VII)); see Nunez, 147 F.3d at 875 (9th Cir. 1998) 12 (holding that verbal threats do not meet the adverse employment action element); see also 13 Heilman-Asmus v. Young, 7 F. App’x 694, 695 (9th Cir. 2001) (“[I]solated instances of 14 unfulfilled threats . . . cannot be construed as adverse employment actions.”). Further, to the 15 extent that a verbal threat could be an adverse employment action, Plaintiff fails to explain 16 why, under the circumstances of this case, a reasonable employee would have been deterred 17 from engaging in protected activity based on Mr. William’s threat to terminate Plaintiff for 18 making unethical sales. A threat to terminate an employee for reasons unrelated to the 19 employee’s protected conduct does not constitute an adverse employment decision. See 20 D’Andrea v. Univ. of Haw., ___ F. Supp.2d ___, 2010 WL 651593, at *8 (D. Haw. 2010) 21 (implying that a threat must relate to the employee’s protected activity to rise to the level of 22 an adverse employment action); see also Hardage, 427 F.3d at 1189 (holding that threats are 23 not adverse employment actions). Accordingly, to the extent the parties seek summary 24 judgment on this issue, Plaintiff’s Motion is denied and Cox’s is granted. 25 (2) Plaintiff’s Non-Contiguous Work Zone 26 The Court also grants summary judgment in Cox’s favor on Plaintiff’s claim that she 27 was retaliated against when Mr. Williams assigned her to a non-contiguous work zone. The 28 undisputed facts demonstrate that Plaintiff was never assigned to this work zone, but that she - 10 - 1 selected this work zone herself. (Dkt. # 52 at ¶ 94–95.) When Cox reconfigured the work 2 zones for the CLRs in the Sales Department in April 2006, each CLR was allowed to bid on 3 the work zone he or she desired. (Id. at ¶ 74.) The bidding order was determined by “a 4 stacked ranking of each CLR’s sales, saves[,] and disconnects.” (Id.) Though this objective 5 ranking put Plaintiff near the bottom of the bid, she still had the choice of three to four other 6 zones, including an affluent and geographically contiguous zone. (Id. at ¶¶ 94–95.) Plaintiff, 7 however, selected a work zone that she later dubbed the “dead zone.” (Id. at ¶ 98.) She again 8 selected the same zone, even though she had the choice of several additional work areas, 9 when the Sales Department rebid in July 2006. 10 Plaintiff alleges that Cox intentionally assigned her to a “gerrymandered 11 non-contiguous” work zone (see Dkt. # 51 at ¶ 5.); however, the record is devoid of any 12 evidence to support this allegation. There is nothing in the record suggesting that the 13 reconfiguration was targeted at Plaintiff. See Weger v. City of Ladue, 500 F.3d 710, 726–27 14 (8th Cir. 2008) (rejecting a plaintiff’s Title VII claim where the employer’s allegedly adverse 15 employment policy “affect[ed] all or substantially all of its employees in the same manner”). 16 There also is no evidence that the “stacked rankings” were somehow unobjective or 17 calculated to impair Plaintiff’s bid position—all of the CLRs were subject to the same 18 formula for determining bidding order. See id. Accordingly, any causal connection between 19 Plaintiff’s protected activity and her assignment to the work area is severed by the undisputed 20 fact that Plaintiff, not Cox, selected her assignment. See Luce, 303 F.3d at 1005 (holding that 21 a prima facie case for retaliation requires evidence of a causal connection between the 22 plaintiff’s protected activity and the employer’s adverse employment decision).4 23 24 25 26 27 28 4 In her Response to Defendant’s Motion, Plaintiff also asserts that Cox retaliated against her when Mr. Trujillo, the area team leader, failed to assist her after she complained about her geographic work zone. This claim fails, however, because she does not present any evidence of actions that Mr. Trujillo failed to take to address her complaint and she does not explain what assistance was requested. See Roley v. New World Pictures, 19 F.3d 479, 482 (9th Cir. 1994) (noting that a party’s naked allegations and speculation are insufficient to create a genuine issue of material fact and withstand summary judgment). She also fails to - 11 - 1 (3) Denial of Plaintiff’s Requested Transfer Back to the Field Operations Department 2 The Court next rejects Plaintiff’s argument that Cox retaliated against her by denying 3 her transfer back to the Field Operations Department. Here, Plaintiff fails to establish her 4 prima facie case of retaliation because there is no evidence of a causal connection between 5 Plaintiff’s protected activity and Cox’s decision to deny the transfer. Even if Plaintiff had set 6 forth a prima facie case, she fails to show that Cox’s legitimate reason for denying the 7 transfer was pretext for retaliation. 8 First, there is no evidence of a causal connection between Plaintiff’s complaints 9 regarding overtime pay and Cox’s refusal to deny Plaintiff’s requested transfer to the Field 10 Operations Department. Instead, Defendants present undisputed affidavit evidence indicating 11 that Mr. Dolezal and Mr. LaSpisa, the managers who denied the transfer, were unaware of 12 Plaintiff’s complaints regarding the Sales Department’s failure to pay overtime 13 compensation. (See Dkt. # 41 at ¶¶ 10–12.) Absent such awareness, Plaintiff cannot 14 demonstrate the requisite causal connection to overcome summary judgment. See Raney v. 15 Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (9th Cir. 1997) (“In order to satisfy the 16 ‘causal link’ prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally 17 establish that the defendant was actually aware of the protected expression at the time the 18 defendant took the adverse employment action.”) (citing Goldsmith v. City of Atmore, 996 19 F.2d 1155, 1163 (11th Cir. 1993)). While Plaintiff alleges that the Field Operations 20 Department must have been aware of her complaints, she provides no admissible evidence 21 to support this allegation. (See Dkt. # 52 at ¶ 52.) Rather, Plaintiff cites an email from one 22 member of Cox’s Human Resources Department to another member of that Department. (See 23 Dkt. # 41, Ex. 12 at 756–757.) This email does not even remotely suggest that personnel in 24 the Field Operations Department were aware of Plaintiff’s complaints. (Id.) While the email 25 pertains to Plaintiff’s transfer request, it does not mention her complaints regarding Cox’s 26 27 28 explain how Mr. Trujillo’s failure to help her was related to her complaints regarding overtime. - 12 - 1 failure to pay overtime wages. (See id.) Because Plaintiff fails to carry her burden of setting 2 forth evidence of causation, summary judgment is appropriate on this claim in Cox’s favor. 3 See Fed. R. Civ. P. 56(e) (noting that the parties’ allegations are insufficient to defeat 4 summary judgment). 5 Further, even if Plaintiff had set forth a causal connection, the record indicates that 6 the Field Operations Department had a legitimate non-retaliatory reason for denying 7 Plaintiff’s transfer. Cox’s internal policy required Plaintiff to work in her position in Sales 8 for a minimum of twelve months to be eligible for an internal transfer. (Dkt. # 52 at ¶ 38.) 9 Plaintiff began working in the Sales Department on September 25, 2005. Unhappy with this 10 new position, however, Plaintiff subsequently made multiple requests to transfer back to the 11 Field Operations Department between April and early September of 2006. (Id. at ¶ 41.) 12 Because this time frame indicates that Plaintiff had worked in Sales for less than a year when 13 she requested the transfer, the only exception to Cox’s policy required her to obtain approval 14 from both Sales and Field Operations. (Id. at ¶ 39.) The Sales Department granted the 15 request; however, the Field Operations Department denied the request because it was 16 overstaffed. (Dkt. # 41 at ¶ 49.) Plaintiff does not dispute that Field Operations was 17 overstaffed. (See Dkt. # 52 at ¶ 49.) She further fails to present facts suggesting that a 18 “retaliatory motive” more likely influenced the Field Operations Department’s decision or 19 that its explanation is “unworthy of credence.” See Villiarimo, 281 F.3d at 1065. Thus, to the 20 extent the parties seek summary judgment on this issue, Plaintiff’s Motion is denied and 21 Cox’s is granted. 22 (4) False Audits and Termination 23 The Court denies both parties’ request for summary judgment on Plaintiff’s claim that 24 Cox terminated her in violation of the FLSA. With respect to this claim, neither party 25 disputes that Plaintiff has set forth a prima facie case of retaliation. (See Dkt. # 64 at 9.) 26 Summary judgment, therefore, turns on whether Cox had a legitimate non-retaliatory reason 27 for terminating Plaintiff’s employment, and if so, whether Plaintiff has brought forth 28 sufficient evidence of pretext. See Spata, 253 F. App’x at 649. - 13 - 1 Here, Cox has met its burden of articulating a legitimate non-retaliatory explanation 2 for its employment decision because it has produced admissible evidence which would allow 3 a reasonable fact finder to conclude that the employment decision was not motivated by 4 retaliatory animus. See Steiner, 25 F.3d at 1464–65. According to Cox, a December 2006 5 internal audit revealed that Plaintiff had coded several customer accounts as disconnected 6 even though it was discovered that these accounts were still connected to Cox’s services. 7 (Dkt. # 52 at ¶ 146.) Cox further attests that its managers reviewed documentary evidence 8 showing that Plaintiff had not performed the work before the Company fired her. Because 9 Cox presents evidence that Plaintiff committed fraud, a “trier of fact” could “rationally . . . 10 conclude that [Cox’s] employment decision” was not “motivated by [retaliatory animus].” 11 Burdine, 450 U.S. at 257. 12 Plaintiff, however, presents sufficient evidence for the fact-finder to alternatively 13 conclude that Cox’s reason is pretext for retaliation. According to Plaintiff’s affidavit, she 14 never performed any “false disconnects.” Instead, she attests that it was not out of the 15 ordinary for a CLR to disconnect a customer’s service only to have that customer illegally 16 reconnect and steal services. (Dkt. # 52 at ¶ 134.) She further provides documentary 17 evidence, which she presented to Mr. Trujillo and Mr. Williams shortly before they fired her, 18 indicating that she actually performed the work in question. (Id. at ¶¶ 156, 160, 161, 164.) 19 Based on this evidence, a reasonable fact-finder could conclude that Cox did not 20 honestly believe that it had a good faith reason for terminating Plaintiff’s employment. In 21 judging whether a proffered reason is pretextual, an employer need only show that it 22 “honestly believed its reason for its actions, even if its reason is ‘foolish or trivial or even 23 baseless.’” Villiarimo, 281 F.3d at1063 (9th Cir. 2002) (quotation omitted). In other words, 24 it is not important whether the proffered justification is objectively false—only that Cox 25 honestly believed its reasons for its actions. See id. Nonetheless, given that Plaintiff 26 presented her employer with evidence that arguably exonerated her, a reasonable fact finder 27 could conclude that Cox did not believe its actions were justified. Further, given that Mr. 28 Williams made derogatory comments about Plaintiff immediately after she first complained - 14 - 1 about Cox’s failure to pay overtime (Dkt. # 52 at 117), Plaintiff has presented sufficient 2 evidence of retaliatory animus to withstand summary judgment. See Villiarimo, 281 F.3d at 3 1063 (holding that a plaintiff can show pretext either by showing that a retaliatory “reason 4 more likely motivated” the employer or by showing that the employer’s proffered reason is 5 “unworthy of credence”). 6 Viewing these facts in the light most favorable to Cox, a reasonable jury could 7 determine that the Company terminated Plaintiff based on an honest belief that she 8 committed false disconnections. Summary judgment in Plaintiff’s favor is therefore denied 9 on this claim. Yet, because a fact finder could reasonably conclude that Cox’s reason for 10 terminating Plaintiff is pretext for retaliation, summary judgment in Cox’s favor is also 11 denied. 12 (5) Unfavorable Job References 13 The Court also denies summary judgment on Plaintiff’s claim that Cox retaliated 14 against her by providing negative employment references to potential employers. Plaintiff’s 15 prima facie case is satisfied because Plaintiff presents evidence that Cox gave her a poor 16 reference shortly after she complained about Cox’s failure to pay her overtime. See 17 Williamson, 208 F.3d at 1151 (holding that an informal complaint is a protected activity 18 under the statute); Ray, 217 F.3d at 1240 (observing that an unfavorable job reference can 19 constitute an adverse employment action); Coszalter v. City of Salem, 320 F.3d 968, 977 (9th 20 Cir. 2003) (holding that causation can be inferred from timing alone depending on the 21 circumstances of each case). 22 Although the parties agree that Cox considers Plaintiff to be ineligible for rehire, Cox 23 asserts that there is no evidence that the Company ever shared this information with 24 prospective employers. (See Dkt. # 40.) A review of the evidence, however, indicates 25 otherwise. According to the record, Plaintiff applied for positions with five 26 telecommunications companies after she was terminated. (Dkt. # 52 at ¶¶ 192, 197, 200, 203, 27 207.) The record further indicates that each of these prospective employers, who perform a 28 substantial amount of contract work for Cox, were required to contact Cox about Plaintiff. - 15 - 1 (Id.) According to Cox’s own evidence, the Company has a policy pursuant to which its 2 contractors are required to contact Cox regarding job applications from former Cox 3 employees. (Dkt. # 41, Ex. 35 at ¶ 17.) This policy further provides that contractors must 4 ensure that former Cox employees are rehirable by Cox before those employees are permitted 5 to perform contract work for Cox.5 (Id.) This is sufficient circumstantial evidence for a fact- 6 finder to conclude that the prospective employers contacted Cox about Plaintiff. Given that 7 Cox told Plaintiff that she was ineligible for rehire, a fact-finder could also reasonably 8 conclude that Cox conveyed the same information to the prospective employers. See 9 Anderson, 477 U.S. at 255 (requiring the Court to draw all reasonable inferences in non- 10 moving party’s favor on summary judgment). And although Plaintiff fails to show that she 11 would have been hired by these employers but for Cox’s negative references, the fact that an 12 employer did not base its hiring decision on the poor reference does not preclude a claim for 13 retaliation. See Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (denying summary 14 judgment on an employee’s retaliation claim even though the employer proved that the poor 15 job reference did not affect the prospective employer’s decision not to hire the employee 16 because the fact that “this unlawful personnel action turned out to be inconsequential goes 17 to the issue of damages, not liability”). 18 To the extent that Cox argues that it had a legitimate non-pretextual reason for 19 providing a negative employment reference, questions of fact preclude summary judgment 20 on this issue. While Cox has presented evidence that it listed Plaintiff as ineligible for rehire 21 because she committed fraud (Dkt. # 52 at ¶ 146), Plaintiff presents evidence upon which a 22 trier of fact could conclude that Cox did not honestly believe that she had committed fraud 23 when the Company fired her and gave the unfavorable job reference. (Id. at ¶¶ 156, 160, 161, 24 25 26 27 28 5 Plaintiff also presents her own deposition testimony as evidence that Cox provided negative employment references. According to Plaintiff, several of these prospective employers told her that she was not hired because Cox told them that Plaintiff was ineligible for rehire. (See, e.g., Dkt. # 53 ¶ 195.) This evidence, however, appears to be inadmissible double hearsay; therefore, the Court has not taken it into consideration in resolving the parties’ motions. See Fed. R. Evid. 802–803. - 16 - 1 164.) Accordingly, to the extent that the parties seek summary judgment on this claim, both 2 Motions are denied. 3 C. 4 The parties next dispute whether the FLSA’s retaliation provisions permit punitive 5 damages. Under § 216(b) of the statute, an aggrieved employee is entitled to “such legal and 6 equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) . . . 7 including without limitation employment, reinstatement, promotion, and payment of wages 8 lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). As both 9 parties agree, the Ninth Circuit has not yet definitively determined whether punitive damages 10 are available to a plaintiff suing for retaliation under the FLSA. Nevertheless, it appears that 11 the Ninth Circuit has endorsed the view that punitive damages are available for violations of 12 the FLSA’s retaliation provisions. See Lambert, 180 F.3d at 1011. In Lambert, the court 13 declined to reach the issue of punitive damages under the FLSA because the defendant 14 waived the argument. Id. The Ninth Circuit explicitly acknowledged, however, that it found 15 the Seventh Circuit’s determination that punitive damages are available under the FLSA to 16 be “persuasive.” Id. (citing Travis v. Gary Cmty Mental Health Ctr., Inc., 921 F.2d 108, 17 111–12 (7th Cir. 1990) cert. denied, 502 U.S. 812 (1991)). Punitive Damages Under the FLSA 18 Focusing on the plain language of § 216(b), the Seventh Circuit in Travis specifically 19 held that punitive damages are available under the FLSA’s retaliation provisions. See 921 at 20 111–12. As enacted in 1938, § 216(b) allowed only for specific types of damages that 21 excluded compensatory and punitive damages. Id. at 111. Congress, however, later amended 22 § 216(b) and eliminated this limitation and replaced it with the following: “Any employer 23 who violates the provisions of section 15(a)(3) of this Act [29 U.S.C. § 215(a)(3)] shall be 24 liable for such legal or equitable relief as may be appropriate to effectuate the purposes of 25 section 15(a)(3), including without limitation employment reinstatement or promotion and 26 the payment of wages lost and an additional amount of liquidated damages.” Id. (quoting 27 Pub.L. 95-151, 91 Stat. 1252 (1977)). The court in Travis then explained that the provision, 28 as amended, indicated Congress’s intent to give courts the discretion to grant relief as - 17 - 1 appropriate, including punitive damages. Id. at 112. Indeed, the term “legal” relief is 2 “commonly understood to include compensatory and punitive damages.” Id. at 111. 3 As the Southern District of New York has further noted, “this interpretation comports” 4 with the Supreme Court’s decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 5 60, 66 (1992). See Shines v. Serv. Corp. Intern., 2006 WL 3247663, at *2 (S.D. N.Y. Nov. 6 8, 2006). In Franklin, the Supreme Court reaffirmed the principle that “[w]here legal rights 7 have been invaded, and a federal statute provides for a general right to sue for such invasion, 8 federal courts may use any available remedy to make good the wrong done.” 503 U.S. at 66 9 (1992) (quotation omitted). According to this principal, courts may “presume the availability 10 of all appropriate remedies unless Congress has expressly indicated otherwise.” Id. (internal 11 citation omitted). “Clearly, as the Seventh Circuit found, language in § 216(b), which makes 12 violators liable . . . ‘for such legal or equitable relief as may be appropriate’ and prefaces the 13 list of possible forms such relief can take with the phrase ‘without limitation,’ does not 14 expressly indicate otherwise, but rather indicates quite the opposite.” Shines, 2006 WL 15 3247663, at *2 (quoting 29 U.S.C. § 216(a) and citing Travis, 921 F.2d at 111). 16 The Court is aware that the Eleventh Circuit and some district courts have relied on 17 the legislative history of the Statute to hold that § 216(b) prohibits punitive damages. See 18 Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000); see also Tumulty v. 19 FedEx, 2005 WL 1979104, at *11 (W.D. Wash. Aug. 16, 2005). Nonetheless, those courts 20 fail to address the language in Franklin explaining that courts should presume the availability 21 of all appropriate remedies absent an express indication otherwise. See 503 U.S. at 66. As 22 discussed in Shines, there is no express prohibition on punitive damages in the text of §§ 23 215(b) and 216(a). 2006 WL 3247663, at *2. Accordingly, based on Travis, 921 F.2d at 111, 24 Lambert, 180 F.3d at 1011, and their progeny, the Court holds that the FLSA permits 25 Plaintiff to seek punitive damages for Cox’s alleged violation of the Statute’s retaliation 26 provisions. 27 /// 28 /// - 18 - 1 II. Plaintiff’s Tortious Interference with Contract Claim 2 To prevail on a claim for tortious interference under Arizona law, a plaintiff must 3 establish: (1) the existence of a valid third-party contractual relationship or business 4 expectancy; (2) the interferer’s knowledge of the relationship or expectancy; (3) intentional 5 interference inducing or causing a breach or termination of the relationship or expectancy; 6 (4) the interference is improper as to motive or means; and (5) resultant damages to the party 7 whose relationship or expectancy has been disrupted. See Wallace v. Casa Grande Union 8 High Sch. Dist. No. 82, 184 Ariz. 419, 428, 909 P.2d 486, 494 (Ct. App. 1995) 9 Genuine issues of material fact preclude summary judgment on this claim. Viewing 10 the record in the light most favorable to Plaintiff, she has submitted sufficient evidence for 11 a reasonable jury to conclude that Cox unlawfully interfered with Plaintiff’s potential 12 employment opportunities. Pursuant to Cox policy, the telecommunications companies that 13 performed contract work for Cox were all required to contact Cox to determine whether 14 Plaintiff was eligible to work on Cox jobs. (Dkt. # 4, Ex. 35 at ¶ 17.) Similarly, because a 15 reasonable fact-finder could determine that Cox did not have a good faith basis for 16 terminating Plaintiff and listing her as ineligible for rehire, there are issues of fact with 17 respect to Cox’s assertion that the employment references were neither wrongful nor 18 improper. (See Dkt. # 40 at 14 n. 3.) Indeed, Plaintiff has presented evidence that she never 19 performed any wrongful disconnects and she has further adduced evidence that Cox 20 Management was aware of these exculpatory facts when the Company fired her. (Dkt. # 41, 21 Ex. 35 at ¶ 17.) Accordingly, the basis for Cox’s request for summary judgment on Plaintiff’s 22 tortious interference claim fails. 23 24 25 26 27 CONCLUSION Having determined that there are genuine issues of material fact with respect to several aspects of Plaintiff’s FLSA and tortious interference claims, IT IS THEREFORE ORDERED that the Cox’s Motion for Summary Judgment (Dkt. # 40) is GRANTED IN PART AND DENIED IN PART: 28 - 19 - 1 (1) Summary judgment is GRANTED in Cox’s favor to the extent that Plaintiff claims that Cox retaliated against her when a Company Manager used offensive language, assigned her to a new geographic work area, and denied her request to transfer to another department; (2) Cox’s request for summary judgment is DENIED with respect to Plaintiff’s claims that the Company retaliated against her by terminating her and giving her negative employment references; (3) Cox’s request for summary judgment is also DENIED with respect to Plaintiff’s claim that the Company tortuously interfered with contractual relations between Plaintiff and prospective employers. 2 3 4 5 6 7 8 9 IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment on her FLSA claims (Dkt. # 42) is DENIED. 10 IT IS FURTHER ORDERED that the parties’ stipulation to temporarily hold the 11 Court’s decision on their pending motions (Dkt. # 67) is DENIED as moot. The parties’ 12 stipulation to modify the Court’s scheduling order (Dkt. # 67) is also DENIED as the parties 13 have not demonstrated the requisite circumstances for modifying that order. (See Dkt. # 15.) 14 DATED this 4th day of May, 2010. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 -

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