Everts v. Sushi Brokers LLC et al, No. 2:2015cv02066 - Document 81 (D. Ariz. 2017)

Court Description: ORDER granting 70 Amended Motion for Partial Summary Judgment on the issue of Defendant's liability. IT IS FURTHER ORDERED that this matter will proceed for a determination of damages. (See document for further details). Signed by Judge John J Tuchi on 3/27/17. (LAD)
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Everts v. Sushi Brokers LLC et al 1 Doc. 81 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brittany Everts, No. CV-15-02066-PHX-JJT Plaintiff, 10 11 v. 12 ORDER Sushi Brokers LLC, 13 Defendant. 14 15 At issue is Plaintiff’s Amended Motion for Summary Judgment (Doc. 70, Mot. 16 Summ. J.), to which Defendant filed a Response (Doc. 73, Resp.), and Plaintiff filed a 17 Reply (Doc. 75, Reply). Because the parties’ briefs were adequate for the Court to 18 resolve the issues arising in Plaintiff’s Motion, the Court finds this matter appropriate for 19 decision without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the 20 Court grants Plaintiff’s Motion for Summary Judgment on the issue of Defendant’s 21 liability. 22 I. BACKGROUND 23 On October 15, 2015, Plaintiff Brittany Everts filed a Complaint, the operative 24 pleading, against Defendant Sushi Brokers, LLC. (Doc. 1, Compl. at 1.) Plaintiff alleges 25 two claims: (Count 1) pregnancy discrimination in violation of Title VII of the Civil 26 Rights Act of 1964, 42 U.S.C. § 2000e; and (Count 2) gender discrimination in violation 27 of the Arizona Civil Rights Act (“ACRA”), A.R.S. § 41-1463(B). (Compl. ¶¶ 37-53.) 28 Dockets.Justia.com 1 Beginning in early 2011, Plaintiff worked as a sushi server at Defendant’s 2 restaurant. (Doc. 71, PSOF ¶¶ 1–2.) Later that year, she became pregnant, and her 3 pregnancy began to show. (PSOF ¶¶ 1–2.) On September 18, 2011, Randon L. Miller, 4 Defendant’s managing member and thus owner of the restaurant, left a voicemail for 5 Plaintiff’s shift manager, Ms. Morton, stating the following: 6 [W]e got Baby Momma. We got—oh, I can’t leave these messages because 7 obviously we’d get in trouble—but it’s just ridiculous. It’s all the same 8 stuff. We can’t have a big fat pregnant woman working in my restaurant. 9 I’m sorry it doesn’t fly. I will not hire them when they walk in. I will not 10 eat them with eggs. I will not eat them with ham. No green eggs; no ham; 11 no nothing . . . I don’t know how I have—who I have to deal with to get 12 people off my schedule. So please call me tomorrow and we’ll work it out. 13 (PSOF ¶ 9.)1 14 On September 20, 2011, Ms. Morton fired Plaintiff without citing her pregnancy 15 as the reason for the termination. (PSOF ¶ 10.) Plaintiff avers that Defendant terminated 16 her after she refused to accept a reassignment to the hostess position because of her 17 pregnancy. (PSOF ¶ 21.) Defendant concedes that one of the reasons it fired Plaintiff was 18 because she refused to accept reassignment to the hostess position as a reasonable 19 accommodation designed to protect her health and safety during her pregnancy. (Doc. 74, 20 DSOF ¶¶ 21, 23–26.) On September 27, 2011, Plaintiff filed a charge of discrimination 21 with the Equal Employment Opportunity Commission (“EEOC”). (PSOF ¶ 37.) On 22 August 24, 2015, Plaintiff received a Notice of Right to Sue from the EEOC, thus 23 allowing the present action. (PSOF ¶ 37.) 24 II. LEGAL STANDARD 25 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 26 appropriate when: (1) the movant shows that there is no genuine dispute as to any 27 28 1 The Court also permitted Plaintiff to non-electronically file an audio recording of the voicemail. (Doc. 79.) -2- 1 material fact; and (2) after viewing the evidence most favorably to the non-moving party, 2 the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. 3 Catrett, 477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 4 1288–89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect 5 the outcome of the suit under governing [substantive] law will properly preclude the 6 entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7 A “genuine issue” of material fact arises only “if the evidence is such that a reasonable 8 jury could return a verdict for the non-moving party.” Id. 9 In considering a motion for summary judgment, the court must regard as true the 10 non-moving party’s evidence if it is supported by affidavits or other evidentiary material. 11 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not 12 merely rest on its pleadings; it must produce some significant probative evidence tending 13 to contradict the moving party’s allegations, thereby creating a question of material fact. 14 Anderson, 477 U.S. at 256–57 (holding that a plaintiff must present affirmative evidence 15 in order to defeat the defendant’s properly supported motion for summary judgment); 16 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 17 “A summary judgment motion cannot be defeated by relying solely on conclusory 18 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 19 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 20 sufficient to establish the existence of an element essential to that party’s case, and on 21 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 22 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 23 III. ANALYSIS 24 A. 25 Plaintiff first moves for summary judgment on Defendant’s liability for her Title 26 Title VII Discrimination VII pregnancy discrimination claim. (Mot. Summ. J. at 6–17.) 27 28 -3- 1 1. Legal Standard 2 Under Title VII, an employer cannot discharge or discriminate against an 3 individual based on sex. 42 U.S.C. § 2000e-2(a)(1). As amended by the Pregnancy 4 Discrimination Act [“PDA”], sex discrimination under Title VII includes discrimination 5 on the basis of pregnancy. 42 U.S.C. § 2000e(k). 6 Liability in a disparate treatment case, such as this one, “depends on whether the 7 protected trait actually motivated the employer’s decision.” Raytheon Co. v. Hernandez, 8 540 U.S. 44, 52 (2003) (ellipsis and internal quotation marks omitted). A plaintiff can 9 prove disparate treatment “either (1) by direct evidence that a workplace policy, practice, 10 or decision relies expressly on a protected characteristic, or (2) by using the burden- 11 shifting framework set forth in McDonnell Douglas.” Young v. United Parcel Service, 12 Inc., 135 S. Ct. 1338, 1345 (2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 13 792 (1973)). 14 To prove disparate treatment under Title VII using direct evidence,2 a plaintiff 15 must show that the employer had a facially discriminatory policy—one which on its face 16 applies less favorably to a protected group. Frank v. United Airlines, Inc., 216 F.3d 845, 17 854 (9th Cir. 2000). When an employer openly and explicitly uses gender as a basis for 18 disparate treatment, the employer in effect admits systematic discrimination and the case 19 turns on whether such disparate treatment is justified under Title VII. Id. Rather than 20 applying the McDonnell Douglas test, once a policy is shown to be facially 21 discriminatory, the court simply asks whether sex was a “bona fide occupational 22 qualification” (“BFOQ”) as outlined in 42 U.S.C. § 2000e-2(e). Cmty. House, Inc. v. City 23 of Boise, 490 F.3d 1041, 1049 (9th Cir. 2006). The BFOQ defense is read narrowly and 24 can be established only by “objective, verifiable requirement[s] . . . [that] concern job- 25 related skills and aptitudes.” Int’l Union, United Auto., Aerospace & Agric. Implement 26 Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991). To prove that 27 28 2 Because the Court resolves Plaintiff’s Motion under the direct evidence test, it need not set forth the legal standard for disparate treatment using indirect evidence. -4- 1 sex3 is a BFOQ, an employer must prove by a preponderance of the evidence that “1) the 2 job qualification justifying the discrimination is reasonably necessary to the essence of its 3 business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a 4 ‘substantial basis for believing that all or nearly all [pregnant women] lack the 5 qualification,’ or . . . (b) it is impossible or ‘highly impractical . . . to insure by individual 6 testing that its employees will have the necessary qualifications for the job.” EEOC v. 7 Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988) (citation omitted). 8 2. Analysis 9 In discrimination cases, “[d]irect evidence is evidence which, if believed, proves 10 the fact [of discriminatory animus] without inference or presumption.” Rashdan v. 11 Geissberger, 764 F.3d 1179, 1183 (9th Cir. 2014) (citation omitted). In other words, 12 direct evidence is “evidence of conduct or statements by persons involved in the 13 decision-making process that may be viewed as directly reflecting the alleged 14 discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude 15 was more likely than not a motivating factor in the employer’s decision.” Shelley v. 16 Geren, 666 F.3d 599, 615–16 (9th Cir. 2012) (citation omitted). Specifically, direct 17 evidence requires an admission by the decision-maker that his or her actions were based 18 on the prohibited animus. Day v. LSI Corp., 174 F. Supp. 3d 1130, 1162 (D. Ariz. 2016). 19 Absent such remarks, a plaintiff must show a nexus between a decision-maker’s actions 20 and a superior’s discriminatory remarks. Vasquez v. County of Los Angeles, 349 F.3d 21 634, 640 (9th Cir. 2003). Alternatively, a facially discriminatory policy can be direct 22 evidence of systematic sex discrimination. Frank, 216 F.3d at 854. 23 Plaintiff claims that a voice mail that Randon L. Miller, the restaurant’s owner, left 24 for Plaintiff’s shift manager, Ms. Morton, is direct evidence of discriminatory animus. 25 (Mot. Summ. J. at 8.) Defendant disputes that the voicemail is about Plaintiff because 26 Mr. Miller never referred to Plaintiff by name and the voicemail never instructed 27 3 28 Defendant argues that non-pregnancy is a BFOQ instead of explicitly arguing that sex is a BFOQ in this case. (Resp. at 8.) However, discrimination on the basis of pregnancy is a type of sex discrimination. 42 U.S.C. § 2000e(k). -5- 1 Ms. Morton to fire anyone. (Resp. at 10.) Defendant, as supported by Mr. Miller’s 2 affidavit, claims that Mr. Miller is not involved in the daily operations of the restaurant, 3 including the termination of employees. (Resp. at 10.) Mr. Miller’s affidavit creates a 4 genuine issue of material fact regarding whether he is the decision-maker at the 5 restaurant. Therefore, Mr. Miller’s voicemail is not direct evidence because it requires the 6 Court to infer that Mr. Miller’s discriminatory remarks have a nexus with Ms. Morton’s 7 termination of Plaintiff. A reasonable jury could find that no such nexus exists, and thus 8 summary judgment supported solely by the voicemail is inappropriate. Nevertheless, 9 Plaintiff has presented unrefuted, direct evidence that Defendant has a facially 10 discriminatory policy. 11 Plaintiff proffers evidence that Defendant has a policy of reassigning pregnant 12 servers to the lower paying hostess position—a policy that is discriminatory on its face. 13 (Mot. Summ. J. at 7.) The parties do not dispute that the hostess position is materially 14 different than the server position. But Defendant argues that it has an unwritten policy of 15 reassigning all employees who may be injured by working behind the bar to the hostess 16 position. (DSOF ¶ 5.) Specifically, Defendant claims that employees who are too large, 17 including pregnant servers and non-pregnant overweight workers, are not allowed to 18 work behind the bar. (DSOF ¶¶ 13–15, 18–19, 29.) However, Defendant failed to provide 19 significant probative evidence to create a question of material fact on this issue because 20 none of the evidence cited shows that Defendant reassigned any other employee except 21 Plaintiff to other positions because of his or her size. Instead, Defendant’s cited evidence 22 shows that in the past, the restaurant switched chefs around to strategically place bigger 23 employees in the middle behind the bar to maximize space instead of moving them to 24 other positions. (Doc. 74-2, Ex. B, Dep. of Chris Kruidenier (“Kruidenier–Def. 25 Excerpts”) at 57.) 26 On the other hand, the record contains overwhelming evidence that Defendant has 27 a standard, unwritten policy at the restaurant of reassigning pregnant servers to the 28 hostess position. For example, speaking about the restaurant in his videotaped deposition, -6- 1 Mr. Miller admitted that “[w]e don’t believe because [servers] are pregnant that they 2 should be fired. They all go to the hostess stand.” (Doc. 70-6, Dep. of Randon Lee Miller 3 (“Miller–Pl. Excerpts”) at 2.) Mr. Miller admitted that reassignment has been a standard 4 practice at the restaurant for fifteen years and that another pregnant employee had been 5 reassigned to a hostess position just days before the videotaped deposition. (Miller–Pl. 6 Excerpts at 2–4.) 7 There is also overwhelming evidence that Defendant tried to reassign Plaintiff to a 8 hostess position out of fear for her safety and the safety of her fetus. First, Defendant 9 provides evidence in which it explicitly and repeatedly admits that it fired Plaintiff for 10 refusing to accept the reassignment to a hostess position as a reasonable accommodation 11 to protect the health and safety of Plaintiff and her fetus. (DSOF ¶¶ 21, 23–25, 35.) 12 Second, Mr. Miller’s videotaped deposition includes multiple admissions that Defendant 13 tried to reassign Plaintiff to a hostess position out of concern for the safety of her fetus. 14 For example, in talking about Plaintiff, Mr. Miller said: “I wasn’t worried about her. I 15 was worried about her kid getting hurt. I didn’t care about my bartenders getting punched 16 in the gut, I was just worried about a child and not that [Plaintiff] was going to get hurt or 17 not.” (Doc. 74-3, Ex. C, Dep. of Randon Lee Miller (“Miller-Def. Excerpts”) at 86.) 18 Third, Chris Kruidenier, a manager at the restaurant, similarly confirmed that Defendant 19 tried to reassign Plaintiff to a hostess position because of “the danger of the position she 20 was in” and out of concern for Plaintiff’s safety and the safety of her fetus. (Doc. 70-4, 21 Dep. of Chris Kruidenier (“Kruidenier–Pl. Excerpts”) at 4, 6.) Fourth, Jonathon Manzer, 22 a manager at the restaurant, testified that the restaurant tried to reassign Plaintiff to a 23 hostess position because the server position was “potentially dangerous for somebody . . . 24 that was in [Plaintiff’s] condition.” (Doc. 70-5, Dep. of Jonathon Manzer (“Manzer–Pl. 25 Excerpts”) at 2–3.) Mr. Manzer also testified that Defendant tried to reassign Plaintiff 26 because the server position, which required Plaintiff to carry plates, knives, and forks 27 could “potentially be harmful to her and the child that she was carrying.” (Manzer–Pl. 28 Excerpts at 5.) The Court finds that Defendant indisputably had a standard practice of -7- 1 reassigning pregnant servers to the hostess position. Additionally, the Court finds that 2 Defendant indisputably tried to reassign Plaintiff to a hostess position, in part, out of fear 3 for the safety of her fetus and subsequently fired Plaintiff when she refused to accept this 4 reassignment. 5 Having concluded that no dispute of material fact remains that Defendant overtly 6 discriminated against Plaintiff based on her pregnancy, the Court next addresses if such 7 disparate treatment is justified under Title VII. Frank, 216 F.3d at 854. Defendant argues 8 that reassigning Plaintiff to a hostess position was necessary because non-pregnancy “is a 9 [BFOQ] reasonably necessary to the normal operation of that particular business or 10 enterprise.” (Resp. at 8 (quoting 42 U.S.C. § 2000e-2(e)).) To qualify for the BFOQ 11 defense, Defendant must prove that 1) specific job qualifications of a server justifying the 12 discrimination are necessary to the essence of its business, and 2) sex is a legitimate 13 proxy for the qualification because nearly all visibly pregnant servers lack the 14 qualification or it is highly impractical to individually test servers to insure that they have 15 the necessary qualification. See Boeing Co., 843 F.2d at 1214. 16 Regarding the first prong of the BFOQ test, Defendant asserts that a prerequisite 17 for the sushi server position is the ability to carry heavy plates in close proximity to sharp 18 sushi knives in a crowded area where a server may get bumped or fall. (Resp. at 8.) 19 Defendant cites to specific testimony in the record that could lead a factfinder to agree. 20 (DSOF ¶¶ 5, 22, 29, 35.) Therefore, the Court finds that Defendant has raised a triable 21 issue of fact that ability to work under certain conditions at the restaurant is reasonably 22 necessary to the essence of its business. 23 However, regarding the second prong, the Court finds that Defendant has not 24 shown any evidence that nearly all visibly pregnant women lack the ability to work in the 25 conditions required by the server position or that it is impracticable to insure employees 26 are qualified through individual testing. In its brief, but not its statement of facts, 27 Defendant cites broad, scientific studies regarding trauma during pregnancy to argue that 28 all pregnant women must be reassigned because it is impracticable to test on a case-by- -8- 1 case basis whether Plaintiff could handle trauma to her stomach. (Resp. at 8.) This 2 argument and the supporting evidence are unpersuasive because Defendant presumes that 3 servers are likely to experience trauma to the stomach that is severe enough to harm a 4 fetus or a pregnant employee. Defendant proffers no evidence to support this 5 presumption, such as expert testimony regarding the risk of fetal injury at the restaurant 6 or evidence of previous injuries to servers. Defendant’s argument is solely based on a 7 barebones speculation of danger. Even if Defendant had supported this argument with 8 evidence, Defendant’s reasoning is explicitly rejected by the Ninth Circuit Court of 9 Appeals and the United States Supreme Court. 10 Concerns for the safety of an unborn fetus, even if such concerns are well-founded 11 and altruistic, are not sufficient to establish sex as a BFOQ. For example, in Johnson 12 Controls, a battery manufacturer barred all women, except those whose infertility was 13 medically documented, from jobs involving actual or potential lead exposure exceeding 14 the Occupational Safety and Health Administration (“OSHA”) standard. 499 U.S. at 191– 15 97. The Supreme Court held that the company’s fetal-protection policy is sex 16 discrimination forbidden under Title VII and that sex was not a BFOQ in that case. Id. at 17 200, 206. The Court reasoned that “moral and ethical concerns about the welfare of the 18 next generation do not suffice to establish a BFOQ.” Id. at 206. Instead, the PDA 19 mandates that decisions about the welfare of future children be left to parents, not 20 employers. Id. at 206–207. 21 Sex can be a BFOQ in very limited situations. The Supreme Court held that an 22 employer’s concerns for the physical safety of its clientele may qualify sex as a BFOQ. 23 See Dothard v. Rawlinson, 433 U.S. 321, 334–35 (1977) (reasoning that employing 24 women as prison guards—in a maximum-security prison where an estimated 20% of the 25 male prisoners were sex offenders scattered throughout the prison’s dormitory facility— 26 could pose a threat to the basic control of the penitentiary and the protection of the 27 inmates and other security personnel). However, courts can only consider the safety of 28 third parties in the BFOQ analysis if those third parties are indispensable to the “essence -9- 1 of the business.” Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 420–21 (1985); see 2 also Johnson Controls, 499 U.S. at 203–204 (rejecting the company’s BFOQ defense in 3 regards to a policy that excludes pregnant workers, in part, because fetuses are not 4 customers or third parties whose safety is essential to the company’s business). 5 Additionally, arbitrary stereotypes about the physical capabilities of women 6 generally attributable to the group cannot be used to establish sex as a BFOQ. For 7 example, in Rosenfeld v. Southern Pacific Co., a female employee sued a telephone 8 company for its policy of excluding women from certain physically demanding positions 9 that the company deemed women incapable of performing. 444 F.2d 1219, 1229 (9th Cir. 10 1971). The court held that the telephone company’s policy is not excusable under the 11 BFOQ defense. Id. at 1227. The court reasoned that the company’s policy was based on 12 “a general assumption regarding the physical capabilities of female employees” and that 13 “the company attempts to raise a commonly accepted characterization of women as the 14 ‘weaker sex’ to the level of a BFOQ.” Id. at 1224. Instead, employees can only be 15 excluded upon a showing of individual incapacity. Id. at 1225; see also EEOC v. Spokane 16 Concrete Products, Inc., 534 F. Supp. 518, 524 (9th Cir. 1982) (holding that sex was not 17 a BFOQ for a truck driver position because the employer’s decision to exclude women 18 relied solely on myths and purely habitual assumptions about the physical differences 19 between men and women). 20 The Court agrees with Plaintiff that it is undisputed that non-pregnancy in this 21 case is not a BFOQ. First, there is no evidence that Plaintiff’s pregnancy created a risk to 22 customers. See Dothard, 433 U.S. at 334–35. Second, the only third-party whose safety 23 Defendant is concerned about is Plaintiff’s fetus, which is not an indispensable party to 24 the essence of Defendant’s business. See Johnson Controls, 499 U.S. at 203–204; 25 Western Air Lines, Inc., 472 U.S. at 420–21. Third, Defendant’s reason for reassigning 26 Plaintiff—concerns about the safety of her fetus—is explicitly rejected by Johnson 27 Controls. 499 U.S. at 206. Fourth, Defendant’s statements about the weight of plates, 28 sharp knives, and other conditions in the restaurant that Defendant sees as inappropriate - 10 - 1 for a pregnant server are arbitrary stereotypes about the physical capabilities of pregnant 2 women that are insufficient to establish a BFOQ. See Rosenfeld, 444 F.2d at 1224. 3 Defendant can only exclude upon a showing of individual incapacity instead of based on 4 habitual assumptions about all pregnant workers. See id. at 1225. 5 Unlike cases involving prisoners and dangers to customers where a BFOQ defense 6 might be colorable, the present situation is exactly the type of case that Title VII guards 7 against. For example, in EEOC v. Red Baron Steak Houses, No. C–86–5522 CAL, 1988 8 WL 168582, at *1, (N.D. Cal. Jun. 3, 1988), a plaintiff became pregnant while employed 9 as a waitress at a restaurant. The restaurant manager reduced the plaintiff’s work hours 10 and told her that “it doesn’t look right” to have someone pregnant waiting on tables. Id. 11 During the EEOC investigation, the restaurant conceded that it had a policy of trying to 12 find other positions for pregnant employees out of fear that they might suffer an injury 13 while performing their waitress duties. Id. The court granted the plaintiff’s summary 14 judgment motion on the issue of Title VII discrimination. Id. at *2. The court reasoned 15 that the defendant’s admission that it reduced the plaintiff’s hours in the best interests of 16 the mother and child is a per se violation of Title VII because there is no evidence that 17 the plaintiff was not fully capable of performing her duties. Id.; see also Schneider v. Jax 18 Shack, Inc., 794 F.2d 383, 384–85 (8th Cir. 1986) (holding that a plaintiff bartender 19 established a prima facie case of discrimination under Title VII where the employer 20 forbade her from working behind the bar while pregnant because of job hazards such as 21 heavy lifting and walking on wet, slippery floors, that might threaten her pregnancy). 22 Overall, Plaintiff has indisputably established through direct evidence that 23 Defendant has a workplace policy that discriminates against pregnant women, a protected 24 class under Title VII as modified by the PDA, and the discriminatory policy is not 25 excused by a BFOQ. Accordingly, the Court will grant Plaintiff’s Motion for Summary 26 Judgment as to Defendant’s liability for sex discrimination in violation of Title VII 27 (Count 1). 28 - 11 - 1 B. 2 Plaintiff next moves for summary judgment on Defendant’s liability for her claim 3 of gender discrimination in violation of ACRA, A.R.S. § 41-1463(B). (Mot. Summ. J. at 4 6–17.) 5 Gender Discrimination under the Arizona Civil Rights Act 1. Legal Standard 6 Under ACRA, an employer cannot discharge or discriminate against any 7 individual based on sex. A.R.S. § 41-1463(B). ACRA is generally identical to Title VII, 8 and thus federal Title VII case law is persuasive in interpreting the ACRA. Bodett v. 9 CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004); see also Vitto v. Cent. Parking Corp., 10 103 F. App’x 202, 203 n.1 (9th Cir. 2004) (“We hold that Vitto’s claim under the ACRA 11 fails for the same reasons as his claim fails under Title VII.”). 12 13 14 15 16 17 18 19 2. Analysis The Court will grant Plaintiff’s Motion for Summary Judgment under ACRA (Count 2) for the same reasons it will grant Plaintiff’s Motion under Title VII. IT IS THEREFORE ORDERED granting Plaintiff’s Motion for Summary Judgment (Doc. 70) on the issue of Defendant’s liability. IT IS FURTHER ORDERED that this matter will proceed for a determination of damages. Dated this 27th day of March, 2017. 20 21 22 Honorable John J. Tuchi United States District Judge 23 24 25 26 27 28 - 12 -