Martinez v. Safeway Stores, Inc, et al., No. 2:2008cv02169 - Document 36 (D. Ariz. 2009)
Court Description: ORDER granting in part and denying in part Defendant Safeway Stores' 27 Motion for Summary Judgment. Signed by Judge James A Teilborg on 11/2/09.(REW, )
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Martinez v. Safeway Stores, Inc, et al. 1 Doc. 36 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Valerie Martinez, Plaintiff, 10 11 vs. 12 13 14 Safeway Stores, corporation, Inc., Defendant. 15 a ) ) ) ) ) ) ) Delaware) ) ) ) ) ) No. Cv 08-2169-PHX-JAT ORDER 16 17 Pending before the Court is Defendant Safeway Stores, Inc.’s Motion for Summary 18 Judgment (Doc. # 27). For the reasons that follow, the court grants in part and denies in part 19 Safeway’s motion. BACKGROUND 20 21 The material facts are not in dispute and are as follows. In April 2000, Martinez 22 began working in the deli department of a Safeway store in Phoenix, Arizona. Eventually, 23 she began experiencing scheduling issues and she filed a formal grievance with her union 24 over the way the scheduling issues were being handled in the deli department. Martinez 25 alleges that after filing her grievance over the scheduling process, she began experiencing 26 problems with her co-workers in the deli department who were upset with her having filed 27 the grievance. 28 Dockets.Justia.com 1 In addition to the issues arising from her filing a grievance with the union, Martinez 2 also alleges that, starting in April 2007, she was sexually harassed by F. Audon, a co-worker 3 of Martinez in the deli department. Among other things, Martinez alleges that Audon 4 repeatedly asked Martinez out on dates; Audon frequently told Martinez that he wanted to 5 have sexual intercourse with her; Audon told offensive jokes in Martinez’s presence; Audon 6 made sexual gestures towards Martinez; and Audon used offensive terms in referring to 7 Martinez. In July 2007, Martinez told her immediate supervisor, S. Richards, that Audon 8 was making her uncomfortable. In response, Richards did not take any corrective action. 9 In approximately August or September 2007, Martinez again complained to Richards 10 concerning Audon’s actions. Again, no corrective action was taken by Richards. 11 In December 2007, Martinez filed a complaint with the union regarding Audon’s 12 actions towards her. In January 2008, a union representative contacted a human resources 13 advisor in Safeway’s Phoenix division, M. Cannon. The very same day, Cannon met with 14 Martinez and the union representative. In February 2008, Cannon interviewed Audon and 15 suspended him pending the outcome of an investigation into Martinez’s allegations. Then, 16 on February 27, 2008, Safeway terminated Audon’s employment for violating several store 17 policies, including Safeway’s policy on harassment. 18 In November 2008, Martinez filed her complaint with this Court, alleging five causes 19 of action: 1) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e- 20 2(a)(1); 2) violation of Arizona’s Civil Rights Act, A.R.S. § 41-1463; 3) breach of implied 21 contract; 4) breach of good faith and fair dealing; 5) intentional infliction of emotional 22 distress.1 ANALYSIS 23 24 Summary judgment is appropriate when “the pleadings, depositions, answers to 25 interrogatories, and admissions on file, together with affidavits, if any, show that there is no 26 1 27 28 Martinez also alleged unlawful retaliation by Safeway as well as a “public policy tort.” (Doc. # 11 at p. 6.) In her response to Safeway’s motion for summary judgment, however, Martinez concedes these two claims. See Doc. # 32 at p. 13. -2- 1 genuine issue as to any material fact and that the moving party is entitled to summary 2 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Thus, summary judgment is mandated, 3 “...against a party who fails to make a showing sufficient to establish the existence of an 4 element essential to that party’s case, and on which that party will bear the burden of proof 5 at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 6 Initially, the movant bears the burden of pointing out to the Court the basis for the 7 motion and the elements of the causes of action upon which the non-movant will be unable 8 to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non- 9 movant to establish the existence of material fact. Id. The non-movant “must do more than 10 simply show that there is some metaphysical doubt as to the material facts” by “com[ing] 11 forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. 12 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 13 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury 14 could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 248 (1986). The non-movant’s bare assertions, standing alone, are insufficient to create 16 a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, 17 in the summary judgment context, the Court construes all disputed facts in the light most 18 favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 19 2004). Sexual Harassment 20 21 Martinez alleges hostile work environment claims based upon sexual harassment 22 under both Title VII of the Civil Rights Act of 1964 and the Arizona Civil Rights Act.2 23 Under Title VII, an employer may not “discriminate against any individual with respect to 24 his compensation, terms, conditions, or privileges of employment, because of such 25 26 27 28 2 Because Arizona courts look to federal jurisprudence in the area of Title VII when interpreting similar provisions in the Arizona Civil Rights Act, the Court’s analysis under Title VII is equally applicable to Martinez’s claims under the Arizona Civil Rights Act. See Najar v. State, 9 P.3d 1084, 1086 (Ariz. Ct. App. 2000). -3- 1 individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “By 2 tolerating sexual harassment against its employees, the employer is deemed to have adversely 3 changed the terms of their employment in violation of Title VII.” Swenson v. Potter, 271 4 F.3d 1184, 1191 (9th Cir. 2001) (citing Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th 5 Cir. 2000). 6 To prove a hostile work environment claim, plaintiff must demonstrate conduct 7 “sufficiently severe or pervasive to alter the conditions of the victim’s employment and 8 create an abusive working environment.” Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 9 U.S. 57, 67 (1986)). Safeway admits, for the purposes of its motion, that Martinez has 10 demonstrated that she was subjected to a hostile or abusive work environment in violation 11 of Title VII. Nevertheless, Safeway argues that it cannot be held liable for the harassment 12 because it did not know of the harassment and, when Safeway was made aware of the 13 harassment, it promptly addressed it. 14 “A plaintiff may state a case for harassment against the employer under one of two 15 theories: vicarious liability or negligence. Which route leads to employer liability depends 16 on the identity of the actual harasser, specifically whether he is a supervisor of the employee, 17 or merely a co-worker.” Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) 18 (footnote omitted). If the harasser is a co-worker and not a supervisor, then “the plaintiff 19 must prove that the employer was negligent, i.e.[,] that the employer knew or should have 20 known of the harassment but did not take adequate steps to address it.” Id. In this case, 21 Audon was a co-worker of Martinez. As such, Martinez must demonstrate that Safeway 22 knew or should have known of the harassment but failed to take adequate steps to remedy 23 it. 24 Martinez argues that she informed Richards–her immediate supervisor–of the 25 harassment in July 2007 and then again in either August or September 2007 and, 26 consequently, Safeway had notice of the harassment and failed to remedy it at that time. 27 Safeway argues that it had a very specific structure in place for reporting harassment, that 28 Martinez was aware of this structure, and that Safeway cannot be held liable for Martinez’s -4- 1 failure to abide by this structure. The Court finds that there is a disputed issue of material 2 fact concerning whether Safeway knew or should have known of the alleged harassment. 3 Safeway has a written policy regarding sexual harassment in the workplace, a copy 4 of which Martinez received when she began working for Safeway. Specifically, the Safeway 5 “Employee Handbook/Store Policies” states that a person subjected to sexual harassment 6 should immediately report the harassment to “Your Store Manager, Any other Safeway 7 Manager, Your Human Resource Advisor, The Security Hotline, SVP. Corporate Human 8 Resources, VP. Corporate Human Resources.” (Doc. # 27, Attachment 1 at p. 114; aka 9 DSOF 16, Ex. I at p. 19.) 10 Even assuming Martinez was bound to report the harassment within the parameters 11 determined by Safeway in its employee handbook, based upon Martinez’s allegations, it 12 appears that she satisfied Safeway’s dictates. Martinez alleges that she began experiencing 13 harassment in April 2007. In July 2007, Martinez alleges that she informed Richards about 14 the harassment. In response, Richards took no action to remedy the alleged harassment. 15 Richards, however, is not simply a co-worker of Martinez. Rather, as even Safeway refers 16 to her, Richards was the “Deli Manager” and Martinez’s direct supervisor. (Doc. # 27 at p. 17 8.) Based upon Safeway’s own policies, one of the persons an employee being subjected to 18 harassment is directed to report the harassment to is “Any other Safeway Manager.” The 19 Court finds that, at a minimum, there is a question of fact concerning whether Richards, 20 whose title was “Deli Manager,” was an “Any other Safeway Manager” within the meaning 21 of Safeway’s policies. 22 Moreover, regardless of whether Richards falls under the “Any other Safeway 23 Manager” designation in Safeway’s policies, the parties do not dispute that Richards was 24 Martinez’s supervisor. Among other things, Richards was responsible for supervising 25 Martinez’s day-to-day work, reviewing the quality of Martinez’s work, and setting the work 26 schedule of the deli department employees. 27 department–the only area of the store Martinez was assigned–and Richards’ supervisor status 28 within this department, the Court finds that there is a question of fact concerning whether -5- Based upon Richards’ role in the deli 1 Safeway had constructive notice of the harassment based upon Martinez’s allegations that 2 she informed Richards of the harassment and Richards witnessed some of the alleged acts 3 of harassment. Accordingly, Safeway has failed to demonstrate that it is entitled to judgment 4 as a matter of law and the Court will deny Safeway’s motion for summary judgment to the 5 extent it seeks dismissal of Martinez’s sexual harassment claims. 6 Breach of Contract 7 Martinez admits that her employment relationship with Safeway is “at-will.” (Doc. 8 # 32 at p. 7.) Nevertheless, Martinez argues that certain requirements contained in Safeway’s 9 policy against harassment–e.g., an employee who engages in harassment in the workplace 10 will be disciplined or terminated–became express terms and conditions of an employment 11 contract between the parties. That is, because Martinez is required to abide by the policy or 12 face discipline or termination of her employment, the policy becomes a term of her 13 employment. 14 “In Arizona, implied-in-fact terms may be found in an employer’s policy statements 15 regarding job security or employee disciplinary procedures, such as those contained in 16 personnel manuals or memoranda.” Roberson v. Wal-Mart Stores, Inc., 44 P.3d 164, 169 17 (Ariz. Ct. App. 2002). “Not all employer policy statements, however, create contractual 18 promises.” Id. Indeed, in Arizona, employers can prevent policy manuals from becoming 19 implied-in-fact terms by including disclaimer statements. See, e.g., Leikvold v. Valley View 20 Comm. Hosp., 688 P.2d 170, 174 (1984), superseded by ARIZ. REV. STAT. § 23-1501; 21 Roberson v. Wal-Mart Stores, Inc., 44 P.3d 164, 169(Ariz. Ct. App. 2002); Duncan v. St. 22 Joseph’s Hosp. & Med. Ctr., 903 P.2d 1107 (Ariz. Ct. App. 1995); Thomas v. Garrett Corp., 23 744 F.Supp. 199 (D. Ariz. 1990); Chambers v. Valley Nat. Bank of Arizona, 721 F.Supp. 24 1128 (D. Ariz. 1988). 25 Martinez does not disagree that Safeway’s policies contain disclaimer statements that 26 the policies “do not constitute all or part of the terms of a contract of employment,” 27 (Defendant’s SOF #’s 14, 24.) and “[t]he Store Policies are not intended to create any 28 contractual rights or obligations . . . .” (Id. at ¶ 20.) Moreover, Martinez fails to respond to -6- 1 Safeway’s argument that the disclaimer statements contained in its policies precludes the 2 policies from becoming part of an employment contract. In any event, based upon 3 controlling Arizona law, and the absence of any Arizona cases refusing to uphold such 4 disclaimer statements, Safeway’s policies and handbooks are not a part of the employment 5 contract between Safeway and Martinez. Accordingly, Safeway is entitled to summary 6 judgment on Martinez’s claim that Safeway is in breach of contract for violating its policies 7 governing harassment. 8 Breach of Good Faith and Fair Dealing 9 Martinez argues that Safeway violated the covenant of good faith and fair dealing by 10 breaching its promise to protect Martinez from the type of harassment perpetuated by Audon. 11 However, Martinez admits that her claim for breach of good faith and fair dealing “is tied to” 12 her claim for breach of contract. (Doc. # 32 at p. 9.) Indeed, there can be no breach of good 13 faith and fair dealing to perform a particular promise when the promise was never made. 14 Because the Court has already determined that the statements contained in Safeway’s policies 15 are not terms of an employment contract between Martinez and Safeway, Safeway cannot 16 be held liable for a breach of good faith and fair dealing of these policies. See Rawlings v. 17 Apodaca, 726 P.2d 565, 570 (Ariz. 1986) (stating that covenant of good faith and fair dealing 18 only requires parties to “refrain from any action which would impair the benefits which the 19 other had the right to expect from the contract or the contractual relationship.”); Wagenseller 20 v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1039 (Ariz. 1985) (stating that in the good faith 21 and fair dealing context, “the relevant inquiry always will focus on the contract itself, to 22 determine what the parties did agree to.”), superseded in other respects by ARIZ. REV. STAT. 23 § 23- 1501 (1996). 24 Intentional Infliction of Emotional Distress 25 To prevail on the claim of intentional infliction of emotional distress, Martinez must 26 show that Safeway’s conduct was extreme and outrageous, that Safeway either intended to 27 cause emotional distress or recklessly disregarded the near certainty that emotional distress 28 would result, and that Safeway’s conduct actually caused severe emotional distress. Ford -7- 1 v. Revlon, 734 P.2d 580, 585 (Ariz. 1987). Extreme and outrageous conduct is “conduct that 2 an average member of the community would regard as atrocious and beyond all possible 3 bounds of decency.” Id. The Court must make a preliminary determination whether 4 Safeway’s conduct may be considered so outrageous and extreme as to permit recovery. 5 Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 905 P.2d 559, 563 (Ariz. Ct. App. 1995). This issue 6 may only be sent to the jury where “reasonable minds may differ.” Nelson v. Phoenix Resort 7 Corp., 888 P.2d 1375, 1386 (Ariz. Ct. App. 1995) (quoting RESTATEMENT (SECOND) OF 8 TORTS § 46). Even if Safeway’s conduct was unjustified, “it does not necessarily rise to the 9 level of ‘atrocious’ and ‘beyond all bounds of decency’” to allow recovery under a claim of 10 intentional infliction of emotional distress. Nelson, 888 P.2d at 1386 (quoting Ford, 734 P.2d 11 at 585). “Major outrage is essential to the tort; and the mere fact that the actor knows that 12 the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.” 13 RESTATEMENT (SECOND) OF TORTS § 46 cmt. f. 14 Martinez bases her claim for intentional infliction of emotional distress upon her co- 15 worker’s reactions towards her after she filed a grievance with the union over scheduling 16 issues. The co-worker’s actions include: yelling at Martinez; the throwing of a box; a raw 17 chicken being “slammed down,” resulting in a splash to Martinez’s face; Richards giving a 18 negative review of Martinez; Richards calling Martinez a liar and telling Martinez that she 19 needed to work on personal maintenance issues; preferential treatment of favorites within the 20 deli department over Martinez; and the store manager siding with Richards over scheduling 21 issues . Martinez argues that this conduct was extreme and outrageous and was intentionally 22 performed by Safeway through its employees. Considering the “extremely high burden of 23 proof for demonstrating intentional infliction of emotional distress,” the Court disagrees. See 24 Bodett v. Coxcom, Inc., 366 F.3d 736, 747 (9th Cir. 2004). 25 Even assuming Safeway is responsible for the actions of Martinez’s co-workers, the 26 conduct Martinez complains of, as a matter of law, does not arise to the level of extreme and 27 outrageous. While the conduct of Martinez’s co-workers may be improper or unjustified, the 28 Court cannot conclude that reasonable minds could find that the alleged conduct was -8- 1 outrageous, atrocious, or beyond all possible bounds of decency. “[I]t is extremely rare to 2 find conduct in the employment context that will rise to the level of outrageousness necessary 3 to provide a basis for recovery for the tort of intentional infliction of emotional distress.” 4 Mintz, 905 P.2d at 563 (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 5 1988), cert. denied, 498 U.S. 811 (1990)). Accordingly, the Court will grant Safeway’s 6 motion for summary judgment to the extent it seeks dismissal of Martinez’s intentional 7 infliction of emotional distress claim. 8 CONCLUSION 9 Based upon the foregoing, the Court finds that there are genuine issues of material fact 10 precluding summary judgment with respect to Martinez’s claims for sexual harassment under 11 Counts I and II. With respect to Martinez’s remaining counts, however, the Court finds that 12 summary judgment is appropriate. 13 Accordingly, 14 IT IS ORDERED that Defendant Safeway Stores, Inc.’s Motion for Summary 15 16 Judgment (Doc. # 27) is granted in part and denied in part consistent with this motion. DATED this 2nd day of November, 2009. 17 18 19 20 21 22 23 24 25 26 27 28 -9-
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