House v. Brovious, No. 2:2017cv02668 - Document 26 (D. Ariz. 2018)

Court Description: ORDER denying Plaintiff's Motion for Summary Judgment (Doc 45 in CV-17-01456-PHX-DLR) and granting Defendants' Cross-Motion for Summary Judgment (Doc 53 in CV-17-01456-PHX-DLR). The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge Douglas L Rayes on 9/11/18. (DXD)

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House v. Brovious 1 Doc. 26 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amber House, No. CV-17-01456-PHX-DLR Plaintiff, 10 11 v. Consolidated with: Case No. CV-17-02668-PHX-DLR Case No. CV-18-01462-PHX-DLR 12 Brovitz Group, et al., ORDER 13 Defendants. 14 15 16 Before the Court are the parties’ cross-motions for summary judgment (Docs. 45, 17 53), which are fully briefed.1 For the following reasons, Plaintiff Amber House’s motion 18 is denied, and Defendants Defendant Desert Massage Companies, Inc. (“DMC”) and The 19 Brovitz Group’s (“Brovitz”) motion is granted. 20 BACKGROUND 21 DMC operates 13 Massage Envy Spa Clinics across Arizona, including a clinic in 22 Ahwatukee. Brovitz is a shareholder of DMC. House, a black woman, was employed at 23 DMC’s Ahwatukee Massage Envy Clinic (“Clinic”) as an esthetician. 24 On September 6, 2016, House raised concerns with Sasha Alba, the Clinic’s 25 General Manager, about Cynthia Larson, another Clinic employee. Specifically, House 26 alleged that Larson, in an effort to sabotage House, engaged in inappropriate gossip and 27 1 28 After reviewing the briefing and record, the Court finds oral argument unnecessary. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). Dockets.Justia.com 1 spread unfounded and slanderous accusations. 2 memorialized in an email she sent to Alba, did not include allegations that Larson’s 3 behavior was motivated by racial animus. House’s concerns, which were 4 On September 9, 2016, Alba organized a meeting between Larson and House. 5 Also present at the meeting was Ashley Mosono, Director of Operations and Alba’s 6 direct supervisor. During this group meeting House did not raise concerns about racial 7 discrimination or the existence of racial animus in the workplace. 8 On October 19, 2016, House emailed Alba with concerns over her work schedule. 9 According to House, after the September 9 meeting her regular customers were being 10 diverted to other Clinic estheticians and her Saturday shifts were reduced. House also 11 questioned whether these changes were retaliation for her September 6 email. Alba 12 responded, assuring House that these incidents were unrelated to the September 6 13 complaint, clarifying that her reduction in Saturday shifts was a mistake that would be 14 promptly remedied, and requesting further information concerning diverted clients in 15 order for Alba to properly investigate the matter. Despite Alba’s assurances to the 16 contrary, House sent a second email to Alba on October 19, in which she stated that she 17 suspected both incidents were “racially motivated,” but that she did not “know for a fact.” 18 On October 25, 2016, Alba met with House and Shawn Adams, a human resources 19 staff member. 20 retaliating against her. Nor did House identify any DMC employee she believed was 21 retaliating against her. During the meeting Houses stated that she did not think Alba was 22 Several months later, on April 6, 2017, House submitted an EEOC intake 23 questionnaire, alleging claims against Brovitz. House then filed an EEOC charge for 24 discrimination against the company, alleging racial discrimination and retaliation. On 25 May 11, 2017, House filed suit in this matter. 26 On August 19, 2017, House allegedly injured her hand using a steamer while 27 performing a facial at work. House reported her injury to the Lead Sales Associate, but 28 returned to work and did not seek any medical treatment for her alleged injury. -2- 1 On August 20, 2017, Monica McNatt, Assistant General Manager of the Clinic, 2 moved House’s handbag in order to access employee mailboxes. According to McNatt, 3 later that day House informed her that she had a loaded gun in her purse and that McNatt 4 should be careful moving her stuff. McNatt reported this conversation to Alba. 5 On August 23, 2017, Alba discussed McNatt’s report with House. House denied 6 saying that she had a gun in her purse, but admitted that she sometimes carries a gun in 7 her purse, she has a concealed carry license, and she intended to start bringing a gun to 8 work. House also alleged that other employees were bringing concealed weapons to 9 work, but refused to divulge the identity of such employees. Alba instructed House that 10 DMC prohibits firearms on Clinic premises, and notified her that bringing a firearm to 11 work would be cause for termination. 12 Upon learning that other Clinic employees were allegedly bringing concealed 13 weapons to work, Alba and Tiffany Harris, DMC’s Chief Operating Officer, initiated an 14 investigation and interviewed all Clinic employees. On August 26, 2017, as part of the 15 investigation, Alba and Harris interviewed House. According to Alba, House changed 16 her story during the interview, denying that she even owned a gun. On August 29, 2017, 17 DMC terminated House, citing safety concerns, House’s inconsistent statements 18 regarding the August 23 incident, and her refusal to aid in the investigation by identifying 19 other employees bringing concealed weapons to work. 20 On September 25, 2017, House filed her amended complaint, alleging that 21 Defendants: (i) violated of Title VII of the Civil Rights Act of 1964 by discriminating 22 against her on account of race; (ii) violated Title VII by retaliating against her for 23 engaging in protected activity; (iii) violated 42 U.S.C. § 1981 by engaging in racial 24 discrimination in enforcing her employment contract; (iv) violated the Lilly Ledbetter 25 Fair Pay Act of 2009 (“FPA”) by paying House less than co-workers of a different race; 26 (v) violated the American’s with Disabilities Act of 1990 (“ADA”);2 and (vi) acted 27 negligently in providing “faulty equipment” in the workplace. (Doc. 20 at 26-29.) 28 2 On July 3, 2018, the Court granted House’s motion for voluntary dismissal of her ADA claim. (Doc. 59.) -3- 1 This action was consolidated with House v. Brovitz Group, et al., No. 17-CV- 2 1456-DLR on September 14, 2017, and House v. Brovitz Group Inc. et al., No. 18-CV- 3 01462-DJH on September 10, 2018, because these matters contained substantially similar 4 allegations. 5 On February 28, 2018, House moved for summary judgment on all claims (Doc. 6 45), and on June 15, 2018, Defendants cross-moved for summary judgment on House’s 7 claims (Doc. 53). 8 LEGAL STANDARD 9 Summary judgment is appropriate when there is no genuine dispute as to any 10 material fact and, viewing those facts in a light most favorable to the nonmoving party, 11 the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary 12 judgment may also be entered “against a party who fails to make a showing sufficient to 13 establish the existence of an element essential to that party’s case, and on which that 14 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 15 (1986). A fact is material if it might affect the outcome of the case, and a dispute is 16 genuine if a reasonable jury could find for the nonmoving party based on the competing 17 evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 The party seeking summary judgment “bears the initial responsibility of informing 19 the district court of the basis for its motion, and identifying those portions of [the record] 20 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 21 477 U.S. at 323. The burden then shifts to the non-movant to establish the existence of a 22 genuine and material factual dispute. Id. at 324. The non-movant “must do more than 23 simply show that there is some metaphysical doubt as to the material facts,” and instead 24 “come forward with specific facts showing that there is a genuine issue for trial.” 25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal 26 quotation and citation omitted). Conclusory allegations, unsupported by factual material, 27 are insufficient to defeat summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th 28 Cir. 1989). If the non-movant’s opposition fails to cite specifically to evidentiary -4- 1 materials, the court is not required to either search the entire record for evidence 2 establishing a genuine issue of material fact or obtain the missing materials. See Carmen 3 v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Forsberg v. Pac. N.W. 4 Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988). 5 6 DISCUSSION I. Disparate Treatment and Retaliation 7 House raises two claims under Title VII, which prohibits employers from 8 discriminating against employees based on race, and from retaliating against employees 9 for engaging in certain protected activities. See 42 U.S.C. §§ 2000e-2(a), 2000e-3. 10 House also raises a racial discrimination claim in violation of § 1981. House claims that 11 Defendants violated Title VII and § 1981 by subjecting her to disparate treatment on 12 account of her race and retaliating against her for submitting a complaint against her co- 13 worker. (Doc. 20 at 27.) 14 Title VII and § 1981 claims are governed by the burden-shifting framework 15 established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See 16 Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000); 17 Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007). Under this framework, the 18 plaintiff bears the initial burden of demonstrating a prima facie case of racial 19 discrimination or retaliation. To establish a prima facie case of disparate treatment, a 20 plaintiff must show that she: (1) is a member of a protected class, (2) is qualified for her 21 job, (3) suffered an adverse employment action, and (4) was treated less favorably than 22 other similarly situated employees outside her protected class. McDonnell Douglas, 411 23 U.S. at 802. To establish a prima facie case of unlawful retaliation, a plaintiff must show 24 that (1) she engaged in protected activity; (2) she thereafter was subjected by her 25 employer to an adverse employment action; and (3) a causal link exists between the 26 protected activity and the adverse employment action. See Porter v. Cal. Dep’t of Corr., 27 419 F.3d 885, 894 (9th Cir. 2005). “The requisite degree of proof necessary to establish a 28 prima facie case for Title VII . . . on summary judgment is minimal and does not even -5- 1 need to rise to the level of a preponderance of the evidence.” Chuang, 225 F.3d at 1124. 2 If a plaintiff makes this threshold showing, “[t]he burden of production, but not 3 persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory 4 [or non-retaliatory] reason for the challenged action.” Id. at 1123-24. If the employer 5 does so, the burden shifts back to the plaintiff to demonstrate that the employer’s 6 proffered reason is a pretext for discrimination or retaliation, “either directly by 7 persuading the court that a discriminatory [or retaliatory] reason more likely motivated 8 the employer or indirectly by showing that the employer’s proffered explanation is 9 unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 10 (1981). 11 Pretext means more than a mistake on the part of the employer; pretext means a 12 lie, specifically a phony reason for some action.” Wolf v. Buss (America) Inc., 77 F.3d 13 914, 919 (7th Cir. 1996) (internal quotation and citation omitted). A plaintiff “cannot 14 simply show that the employer’s decision was wrong, mistaken, or unwise.” Dep’t of 15 Fair Emp’t & Housing v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (internal 16 quotation and citation omitted). 17 implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate 18 reasons for its action that a reasonable factfinder could rationally find them unworthy of 19 credence.” Id. A plaintiff’s evidence on this point “must be both specific and substantial 20 to overcome the legitimate reasons put forth by,” the employer. Aragon v. Republic 21 Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002). Instead, she must show “such weaknesses, 22 Defendants contend that they are entitled to summary judgment on House’s 23 disparate treatment and retaliation claims because House cannot establish that she 24 suffered an adverse employment action. An adverse employment action is one that 25 materially affects the compensation, terms, conditions, or privileges of employment. See 26 Chuang, 225 F.3d at 1126. 27 As an initial matter, House’s termination cannot form the basis of her current 28 discrimination and retaliation claims because her EEOC charge did not include -6- 1 allegations related to her termination. Federal courts lack jurisdiction over Title VII 2 claims until claimants have exhausted their EEOC administrative remedies. “Incidents of 3 discrimination [or retaliation] not included in an EEOC charge may not be considered by 4 a federal court unless the new claims are ‘like or reasonably related to the allegations 5 contained in the EEOC charge.’” Green v. L.A. Cty. Superintendent of Sch., 883 F.2d 6 1472, 1475-76 (9th Cir. 1989) (quoting Brown v. Puget Sound Elec. Apprenticeship & 7 Training Trust, 732 F.2d 726, 729 (9th Cir.1984)). In determining whether the new claim 8 is like or reasonably related, the Court must examine the scope of both the EEOC charge 9 and the EEOC investigation and determine whether the original EEOC investigation 10 would have encompassed the additional charges made in the complaint but not included 11 in the EEOC charge itself. Id. at 1476. Here, the EEOC issued House a right to sue letter 12 three months prior to her termination, meaning House’s termination clearly was not 13 included in the EEOC’s charge. Indeed, House did not file with the EEOC a charge 14 related to her termination until a month before filing her summary judgment motion in 15 this action.3 The Court therefore is without jurisdiction to consider any claim that House 16 was terminated for discriminatory or retaliatory reasons. Sosa v. Hiraoka, 920 F.2d 1451, 17 1456 (9th Cir. 1990). 18 Aside from her termination, House alleges as the basis for her discrimination and 19 retaliation claims that she was (i) excluded from a promotional event; (ii) deprived of a 20 seaweed mask; and (iii) prevented from seeking medical attention for an injury. The 21 undisputed evidence, however, belies House’s characterization of these incidents. First, 22 House was unable to participate in the promotional event because she was working that 23 day. Second, the undisputed evidence shows that House was not denied a seaweed mask. 24 Rather, these supplies were of a limited quantity and were to be shared by the estheticians 25 until the Clinic received a new shipment. Lastly, there is no evidence that House was 26 deprived of medical attention for her workplace injury. Instead, House informed her 27 28 3 House attached with her complaint in the now-consolidated case No. 18-CV1462 an EEOC charge alleging wrongful termination by Defendants that was filed with the EEOC on January 25, 2018. House did not proffer an EEOC notice of dismissal or right-to-sue letter for this charge. -7- 1 supervisor that she was able to return to work and never sought medical attention for the 2 alleged burn. 3 Even assuming that House’s allegations had evidentiary support and otherwise 4 constituted adverse employment actions, House has proffered no evidence that these 5 actions were causally related to her workplace complaint. 6 evidence demonstrating that Defendants’ legitimate, non-discriminatory and non- 7 retaliatory explanations for these actions are pretextual. Defendants therefore are entitled 8 to summary judgment on House’s discrimination and retaliation claims. 9 II. FPA Nor has House offered 10 House claims that that she received a lower base pay because of her race and 11 despite her superior work experience. (Doc. 20 at 27.) The FPA, however, was intended 12 to reverse the Supreme Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., 550 13 U.S. 618 (2007), by extending the statute of limitations for pre-existing anti- 14 discrimination statutes, not to create an independent cause of action. See, e.g., Boyar v. 15 City of New York, No. 10-CV-65(HB), 2010 WL 4345737 (S.D. N.Y. 2010); Lilly 16 Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2, § 2(1)-(2), 123 Stat. 5 (2009). 17 Although House may seek damages for discriminatory wage practices, such an action 18 must arise under another statute. For instance, Title VII makes it unlawful for “an 19 employer . . . to discriminate against any individual with respect to his compensation . . . 20 because of such individual’s race . . . .” § 2000e–2(a)(1).4 21 For purposes of this order, then, the Court will construe House’s wage 22 discrimination claim liberally as one brought under Title VII. To state a prima facie case 23 of wage discrimination under Title VII, House must show that: (1) she belongs to a racial 24 minority; (2) she received low wages; (3) similarly situated comparators outside her 25 26 27 28 4 The FPA amends Title VII to state, in pertinent part: “[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title. . . when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” 42 U.S.C. § 2000e– 5(e)(3)(A). The FPA merely deems each paycheck issued pursuant to a discriminatory pay structure an independent, actionable employment practice under Title VII. -8- 1 protected class received higher compensation; and (4) she was qualified to receive a 2 higher wage. Walker v. Fulton Cty. Sch. Dist., 624 Fed. App’x 683, 686 (11th Cir. 2015). 3 Wage discrimination claims under Title VII are governed by the McDonell Douglas 4 burden-shifting analysis. In race-based wage discrimination cases, the plaintiff must 5 present a comparator who received higher compensation in order to establish a prima 6 facie case. Id. 7 House offers two comparators: Cynthia Larson and Jennifer Swanson. (Doc. 45 at 8 3.) With respect to House’s prima facie case, Defendants argue only that House has not 9 identified valid comparators. Specifically, Defendants contend that House cannot satisfy 10 the third element of her prima facie case because Cynthia Larson and Jennifer Swanson, 11 the only two comparators House identifies, are not similarly situated to House. The 12 Court agrees that Larson is not an appropriate comparator because her job responsibilities 13 are not substantially similar to House’s. For instance, in addition to her duties as an 14 aesthetician, Larson provided training and education to other Clinic staff members. See 15 Hooper v. Total Sys. Servs., Inc., 799 F. Supp. 2d 1350, 1364 (M.D. Ga. 2011) 16 (explaining that the plaintiff cannot rely “merely on a comparison of generic job titles” 17 and must point to evidence “regarding the actual job functions and the skill and effort 18 required to perform those functions”). Swanson, however, is an appropriate comparator. 19 Swanson, a Caucasian, works as an esthetician, has substantially similar job 20 responsibilities, and makes $16.75 per hour, 25 cents more per hour than House. (Doc. 21 48-1 at 4, 313.) 22 Because House established a prima facie case of wage discrimination, the burden 23 shifts to Defendants to articulate a legitimate, nondiscriminatory reason for the pay 24 disparity. Defendants have done so. Specifically, Defendants contend the minimal 25 difference between Swanson’s and House’s hourly wage is commensurate with 26 Swanson’s longer tenure with the company. Swanson has been with the company for 27 over a year longer than House. See Parker v. Arizona, No. 08-CV-656-TUC-AWT, 2013 28 WL 3286414, at *4 (D. Ariz. June 28, 2013) (noting that Title VII incorporates the Equal -9- 1 Pay Act’s affirmative defenses, including seniority based pay). House offers no specific 2 and substantial evidence rebutting this legitimate, non-discriminatory rationale for her 3 difference in pay. 4 summary judgment on this claim. 5 III. Negligence Aragon, 292 F.3d at 659. Defendants therefore are entitled to 6 House alleges that she suffered workplace injury due to Defendants’ negligence in 7 providing her with “faulty equipment.” (Doc. 20 at 29.) Defendants argue that House’s 8 negligence claim fails as a matter of law because the Arizona workers’ compensation 9 system provides the exclusive remedy for her alleged injury. (Doc. 53 at 13.) The Court 10 agrees. 11 The Arizona workers’ compensation statute provides the exclusive remedy for 12 injuries sustained by an employee caused by an employer’s negligence. A.R.S. § 23- 13 1022(A); See Irvin Investors, Inc. v. Superior Ct., 800 P.2d 979, 981-82 (Ariz. Ct. App. 14 1990) (holding that the plaintiff’s negligence claims against her former employer were 15 barred by Arizona's workers’ compensation law, “which provides the exclusive remedy 16 for workers injured on the job”). 17 Because House’s negligence claim alleges that she was injured as a result of 18 Defendants negligently providing faulty workplace equipment, House must pursue her 19 remedies through the Arizona’s workers’ compensation scheme unless an exception to 20 the workers’ compensation scheme applies. § 23-1022(A). House does not argue, nor 21 does the Court find, that any such exception applies. See Eichenberger v. Falcon Air 22 Exp. Inc., No. 14-CV-168-PHX-DGC, 2014 WL 3819355, at *4-5 (D. Ariz. Aug. 4, 23 2014) (finding that the willful misconduct exception to Arizona’s workers’ compensation 24 scheme does not apply to claims based on negligence). Defendants therefore are entitled 25 to summary judgment on this claim. Accordingly, 26 // 27 // 28 // - 10 - 1 IT IS ORDERED that House’s motion for summary judgment (Doc. 45) is 2 DENIED and Defendants’ cross-motion for summary judgment (Doc. 53) is 3 GRANTED. The Clerk shall enter judgment accordingly and terminate this case. 4 Dated this 11th day of September, 2018. 5 6 7 8 9 Douglas L. Rayes United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -

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