Middleton v. Tucson, City of et al, No. 4:2015cv00185 - Document 69 (D. Ariz. 2017)

Court Description: REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Judge enter an order GRANTING Defendant City of Tucson's 53 Motion for Summary Judgment. Any party may serve and file written objections within 14 days after being se rved with a copy of this Report and Recommendation. A party may respond to another party's objections within 14 days after being served with a copy. No replies shall be filed unless leave is granted from the District Judge. If objections are fil ed, the parties should use the following case number: CV-15-0185-TUC-JGZ. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. Signed by Magistrate Judge Bruce G Macdonald on 7/17/17.(BAC)
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Middleton v. Tucson, City of et al 1 Doc. 69 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andrea Middleton, 10 No. CV-15-0185-TUC-JGZ (BGM) Plaintiff, REPORT AND RECOMMENDATION 11 12 13 v. The City of Tucson, et al., 14 Defendants. 15 16 17 Currently pending before the Court is Defendant City of Tucson’s Motion for Summary Judgment (Doc. 53). Defendant has also filed a Statement of Facts in Support 18 19 of Its Motion for Summary Judgment (“SOF”) (Doc. 54). Plaintiff has responded (Doc. 20 61) and filed her separate Objections to City’s Statement of Facts and Plaintiff’s 21 Statement of Facts and Exhibits Opposing Summary Judgment (“SSOF”) (Doc. 60), and 22 23 Defendant replied (Doc. 62). Additionally, Plaintiff filed a Supplemental Summary 24 Judgment Brief (Doc. 66) and Defendant responded to the same (Doc. 67).1 As such, the 25 motion is fully briefed and ripe for adjudication. 26 27 28 1 These additional filings were made pursuant to this Court’s direction at oral argument. See Minute Entry 5/23/2017 (Doc. 63). Dockets.Justia.com 1 2 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. On May 3 4 5 6 23, 2017, Judge Macdonald heard oral argument. Minute Entry 5/23/2017 (Doc. 63). The Magistrate Judge recommends that the District Court grant in part and deny in part Defendant’s motion for summary judgment (Doc. 53). 7 8 9 10 I. FACTUAL BACKGROUND 11 Plaintiff’s Employment at the Tucson Police Department and her Relationship with Lt. Greene 12 Plaintiff Andrea Middleton graduated from the police academy and began 13 A. employment with the Tucson Police Department (“TPD”) in September 2005 as a patrol 14 15 officer. Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 3; see also Pl.’s 16 First Amended Complaint (“FAC”) (Doc. 39) at ¶ 10. In early 2009, Plaintiff met Lt. 17 Greene in the course of her employment when he spoke with her about contacting a 18 19 defense lawyer for an interview. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 4; see also Pl.’s 20 FAC (Doc. 39) at ¶ 13. In February 2009, Plaintiff began dating Lt. Frank Greene which 21 was mutual and welcome at the time it started.2 Pl.’s FAC (Doc. 39) at ¶¶ 13–15. At the 22 time their relationship started, Lt. Greene was Plaintiff’s direct supervisor and 23 24 approximately twenty-three (23) years her senior. Id. at ¶¶ 13–14. Plaintiff described Lt. 25 Greene as “approximately 6’ 1” tall and weigh[ing] approximately 270 pounds.” Pl.’s 26 27 28 2 Defendant relies on Plaintiff’s FAC (Doc. 39) which places the beginning of Plaintiff’s relationship with Lt. Greene in February 2009. Plaintiff’s declaration states “Spring of 2009.” Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 10. Regardless of the precise date the relationship began, it is undisputed that it was early in 2009. -2- 1 2 SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 9. She further stated that Lt. Greene “was a dedicated weightlifter and had the physique of a bodybuilder[,] . . . [with] 3 4 5 6 an established reputation within the TPD as being an intimidating, physically threatening person.” Id. In August 2009, Lt. Greene ceased to be in Plaintiff’s chain of command.3 Id.; 7 8 Def.’s SOF (Doc. 54), Middleton Depo. 12/14/2016 (Exh. “B”) at 24:21–25:1. When 9 Plaintiff and Lt. Greene began dating, they kept the relationship secret from TPD, 10 because they knew that while TPD did not prohibit officers from having off duty 11 12 relationships, TPD did have a policy that prohibited romantically involved officers from 13 being in the same direct supervisory chain of command. Def.’s SOF (Doc. 54), Exh. “B” 14 at 12:3–23. 15 Plaintiff states that although she “was generally aware of th[e] rule [regarding supervisor-subordinate relationships,] . . . [she] did not have any experience 16 17 18 19 with how it was interpreted or applied.” Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 11. Plaintiff asserts that she “was uncomfortable trying to maintain a secret relationship[,] but . . . [] followed Lt. Greene’s instruction that [she] had to keep it secret.” Id., Exh. “1” at ¶ 12. 20 21 Their relationship remained consensual until shortly before Middleton was placed on 22 administrative leave for abuse of confidential police computer information in November, 23 2012. Def.’s SOF (Doc. 54), Exh. “B” at 64:23–65:15. 24 25 26 27 28 Plaintiff asserts that “[f]rom the beginning of their relationship, Lt. Greene was insecure, jealous, and controlling of [her] behavior while she was on duty as a patrol 3 In opposition to Defendant’s Motion for Summary Judgment (Doc. 53), Plaintiff asserts that even after August 2009, Lt. Greene “remained a superior officer with general supervisory authority over her.” Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2016 (Exh. “1”) at ¶ 5. -3- 1 2 officer.” Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 13. Plaintiff further asserts that Lt. Greene’s “jealous[y] and controlling behavior toward her while she was on duty 3 4 5 6 increased significantly in the summer of 2009[,] and grew worse until the end of her employment. Id. Plaintiff states that “from the beginning of [their] relationship, [Lt. Greene] wanted [Plaintiff] to keep him informed of [her] location and what [she] was 7 8 doing while on duty, and specifically whether [she] was interacting with male fellow 9 officers, male complainants, or Tucson Fire Department personnel.” Pl.’s SSOF (Doc. 10 60), Exh. “1” at ¶ 15. Plaintiff further asserts that “Lt. Greene discouraged and told [her] 11 12 not to volunteer to respond to calls where male Tucson Fire Department personnel were 13 likely to be present[,] because he was concerned [that she] might flirt with them.” Id., 14 Exh. “1” at ¶ 14. Plaintiff states that if she did not follow Lt. Greene’s instructions 15 “sufficiently to his liking, he would become angry and call or text [her] and angrily call 16 17 18 19 [her] vulgar names, usually some variation of ‘fucking whore’ or ‘cunt’ and other nasty, sexually related slurs.” Id., Exh. “1” at ¶ 16. Plaintiff claims that she first became aware of Lt. Greene’s jealousy and temper ten (10) days after she first dated him in February 20 21 2009, when he berated her for what he believed was a ‘date,’ but what was really a 22 birthday dinner with her parents. Def.’s SOF (Doc. 54), Middleton Depo. 12/15/2016 23 (Exh. “A”) at 8:9–21. 24 25 In June 2009, Plaintiff states that she was swimming with Lt. Greene at his home 26 and he wanted to engage in sex, which Plaintiff declined. Pl.’s SSOF (Doc. 54), Exh. “1” 27 at ¶ 17. Plaintiff asserts that Lt. Greene “became enraged and threw a deck chair against 28 a patio pillar, damaging the pillar.” Id. Plaintiff states that she “went inside [Lt. -4- 1 2 Greene’s] house to get [her] things and leave[,] [and] Lt. Greene confronted [her] and blocked the exit door in the laundry room [she] was trying to use to leave.” Id. Plaintiff 3 4 5 6 further states that when she tried to leave, Lt. Greene “grabbed and tore and ripped the tank top [she] was wearing, exposing [her] breasts[,] [and] . . . punched a hole through a wooden back door.” Id. Plaintiff asserts that she was too afraid to report this incident to 7 8 TPD, because she feared what Lt. Greene would do in retaliation. Id. Plaintiff also states 9 that “[o]n another occasion[,] early in [their] relationship[,] . . . Lt. Greene . . . threw a 10 pointed tipped bottle opener toward [Plaintiff] and it stuck in the wall behind [her.]” Pl.’s 11 12 SSOF (Doc. 60), Exh. “1” at ¶ 18. Plaintiff states that she “stayed in a relationship with 13 Lt. Greene . . . because [she] . . . hop[ed] [it] was an isolated incident[,] and because [she] 14 was scared of how he might react if [she] tried to end the relationship.” Id., Exh. “1” at ¶ 15 19. 16 17 18 19 B. The 2009 Incident and Investigation On December 4, 2009, Plaintiff and Lt. Greene were involved in a verbal altercation which escalated to a physical fight while off-duty at Lt. Greene’s home. 20 21 Def.’s SOF (Doc. 54), TPD Personnel Rpt. Re: Office of Internal Affairs (“OIA”) Case 22 No. 09-0853 (Exh. “C”) at Bates No. 471COT0063. “Both parties sustained physical 23 injuries.”4 Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff objects to 24 25 26 27 28 any suggestion that she and Lt. Greene “were equally ‘involved’ in the argument and domestic violence assault” on this date. Pl.’s SSOF (Doc. 60) at 1. Plaintiff maintains 4 Plaintiff objects to this statement of fact; however, it is a direct quote from the TPD Personnel Reports. Furthermore, whether or not both parties sustained injury is not material to the fact of the December, 2009 incident’s occurrence or Plaintiff’s position that she was a victim. -5- 1 2 that Lt. Greene was the sole aggressor and that she was the victim. Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶¶ 23–24. 3 1. Plaintiff’s Statement 4 5 6 Plaintiff states that on December 4, 2009, she had gone to Lt. Greene’s “house in the evening to socialize and decided later to leave without engaging in sex.” Pl.’s SSOF 7 8 (Doc. 60), Exh. “1” at ¶ 23. Plaintiff further states that “Lt. Greene got angry and 9 accused [her] of lying about the last time [she] had seen an old boyfriend.” Id. Plaintiff 10 further asserts that “Lt. Greene became enraged and would not let [her] leave[,]” despite 11 12 her insistence and attempts to do so. Id. Plaintiff “picked up [her] duffel bag containing 13 [her] uniform and duty belt and slung it across [her] shoulder, Lt. Greene grabbed the 14 strap and used it to violently pull [her] down on the bed in his bedroom.” Id. The force 15 of this action “caused bruising on [Plaintiff’s] shoulder and chest,” which were 16 17 18 19 photographed the following day by TPD Office of Internal Affairs investigators. Id. Defendant asserts that “[t]he bruises were from [Plaintiff’s] heavy equipment bag getting tangled up while she was getting up and down[,] and that Greene did not hit her or grab 20 21 the bag.” Def.’s SOF (Doc. 54) at ¶ 40(a) (citing Middleton Interview, Case No. 09-0853 22 (Exh. “C”) at 47:2–48:23 (Bates Nos. 471COT0536–471COT0537). 23 characterizes this statement as “a partial and seriously misleading excerpt of Ms. 24 25 Plaintiff Middleton’s testimony to IA investigators.”5 Pl.’s SOF (Doc. 60) at 3:12–13. During her 26 interview, Plaintiff stated “I don’t even remember if he grabbed the bag or if he like 27 grabbed the bag and pushed the bag and I went with the bag because it probably weighed 28 5 The Court agrees that this is only a partial and somewhat misleading statement. -6- 1 2 more than I do[.]” Def.’s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0536:25–28. Further, at the start of the interview, Plaintiff explained that she “kept picking up [her] 3 4 5 6 bag, which had, cuz I had all my work stuff cuz I came right over there from work and so it was full and so he pulled it and then fell on the bed[,] [a]nd then every time [Plaintiff] [got] up, he’d pull it and it’d rip and then, cuz the, the strap kept grinding on my arm[.]” 7 8 Pl.’s SSOF (Doc. 60), OIA Case No. 09-0853, Middleton Interview (Exh. “3”) at Bates 9 No. AM010:23–31. Plaintiff stated that Lt. Greene “wasn’t holding [her] down[,] . . . but 10 every time[,] uh, I would try to get up, I’d be pushed back down.” Pl.’s SSOF (Doc. 60), 11 12 Exh. “3” at Bates No. AM016:22–28. Plaintiff agreed with the interviewer’s 13 paraphrasing of Plaintiff’s description as Lt. Greene “[s]watting [her] down as soon as 14 [she] tried to get up[.]” Id., Exh. “3” at Bates No. AM016:39–41. Later in the interview, 15 Plaintiff explained that her bag “kept flying down[,] [a]nd so it was pinching so freaking 16 17 18 19 bad right there[,] . . . the whole thing ended up getting twisted because I get on the bed, and I’d like wrap around and then I’d get back up and it just kept making this huge freaking knot around my arm.” Def.’s SOF (Doc. 54), Exh. “C” at Bates No. 20 21 471COT0537. Plaintiff went on, “So every fucking time I fell back on the bed, it[, the 22 bag and strap,] just got, kept getting tighter.”6 Id. Plaintiff further asserts that Lt. Greene 23 threw a boot at her, and as she continued to try to leave, “grabbed the butt grip of my 24 25 holstered duty pistol and said, “Are you scared now?” Pl.’s SSOF (Doc. 60), Middleton 26 27 28 6 Plaintiff cites to Page 49 of her interview in OIA Case No. 09-0853 regarding Lt. Greene pushing her onto the bed; however, this page was not included in any of the exhibits. As such, the Court cannot assess the veracity of Plaintiff’s statement regarding statements on that page, and relies only on the cited pages it has reviewed. -7- 1 2 Decl. (Exh. “1”) at ¶ 25. Plaintiff states that “[a]fter that statement, Lt. Greene snapped out of his rage and became apologetic, stating how sorry he was.” Id., Exh. “1” at ¶ 26. 3 4 5 6 Plaintiff also asserts that “[t]his became a regular pattern during [their] relationship, with Lt. Greene becoming angry with [her] and making physical threats of harming [Plaintiff] or [her] family, and then becoming apologetic.” Id. After Plaintiff left Lt. Greene’s 7 8 house she “stopped in a parking lot for a while just to stop shaking[,]” and then called Lt. 9 Greene who asked her to come back to his house, which she did. Def.’s SOF (Doc. 54), 10 OIA Case No. 09-0853, Middleton Interview (Exh. “C”) at Bates Nos. 471COT0516:33– 11 12 13 14 15 471COT0517:3. 2. Lt. Greene’s Version Lt. Greene told investigators that the argument was just verbal, never became loud, and he “told [Plaintiff] to pick up her stuff and go if she needed to go[,] so she 16 17 18 19 packed up and left and then she came back about a half hour later and we went to bed.” Pl.’s SSOF (Doc. 60), OIA Case No. 09-0853, Greene Interview (Exh. “4”) at Bates No. AM313. Lt. Greene later told investigators that Plaintiff initiated the first physical 20 21 contact which resulted in her bruises, then as he tried to break off her attack she grabbed 22 his finger. See Def.’s SOF (Doc. 54), Exh. “K” at Bates No. AM161. Lt. Greene also 23 stated that a bruise inside of Plaintiff’s upper left arm came from him trapping her arm 24 25 against her body when she put her hand on her gun. Id., Exh. “K” at Bates No. 26 AM162:1–42. Lt. Greene further asserted that Plaintiff tried to hit him with her car when 27 she left his house. Id., Exh. “K” at Bates No. AM165:21–36. Lt. Greene also alleged 28 -8- 1 2 that Plaintiff asked him to kill two of her former boyfriends. See id., Exh. “K” at Bates. Nos. AM166–AM167. 3 3. Investigation Outcome 4 5 6 Initially, this incident was investigated as possible criminal misconduct involving domestic violence/assault. Def.’s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0055. 7 8 As outlined above, precisely how the fight took place and its escalation are described 9 differently by each party. Id., Exh. “C” at Bates No. 471COT0063. Neither Plaintiff nor 10 Lt. Greene reported the incident to their respective supervisors. Id., Exh. “C” at Bates 11 12 Nos. 471COT0059, 471COT0073. Plaintiff did, however, tell a friend about what had 13 occurred, and the friend reported the incident to TPD OIA. Def.’s SOF (Doc. 54), 14 Middleton Depo. 12/15/2016 (Exh. “B”) 13:8–14:11; see also Exh. “C” at Bates No. 15 471COT0055. OIA interviewed both Plaintiff and Lt. Greene, and obtained other 16 17 18 19 evidence. Def.’s SOF (Doc. 54), Exh. “C” at Bates Nos. 471COT0055–56, 471COT0059, 471COT0063, 471COT0073. Plaintiff told investigators that she did not believe that this sort of incident would 20 21 happen again. Def.’s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0496:20–26. 22 Plaintiff also stated that investigators wouldn’t “find anybody more honest” than Lt. 23 Greene and that his “honesty is impeccable.” 24 25 Id., Exh. “C” at Bates Nos. 471COT0500:11–18, 471COT0501:23–26. During the investigation, Plaintiff indicated 26 that she was not trying to minimize anything or protect Lt. Greene. Def.’s SOF (Doc. 27 54), Exh. “C” at Bates Nos. 471COT0509:20–471COT0510:14. 28 -9- Lt. Greene told 1 2 investigators that Plaintiff was always portraying herself as a victim. Def.’s SOF (Doc. 54), OIA Case No. 09-0853, Greene Interview (Exh. “K”) at Bates No. AM153:1. 3 4 5 6 Plaintiff further stated that she kept Lt. Greene informed about what she was doing, and that was more her thing than his. Def.’s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0513:17–37. Plaintiff also explained that allowing Lt. Greene to see her 7 8 phone or answer it was her idea, and not because he wanted to check up on her. Id., Exh. 9 “C” at Bates No. 471COT0526:21–37. Lt. Greene characterized Plaintiff as jealous of 10 other women and insistent that he keep her informed of what he was doing. Def.’s SOF 11 12 13 14 15 (Doc. 54), Exh “K” at Bates No. AM153:19–42. The case was reviewed by the City prosecutors who declined to file criminal charges against either of the parties. Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff and Lt. Greene were admonished not to discuss the matter 16 17 18 19 pending the OIA investigation. Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff text messaged Lt. Greene and discussed the investigation, as well as discussed the incident with a coworker. Id., Exh. “C” at Bates No. 471COT0059. She was 20 21 suspended for twenty (20) hours. Id. Lt. Greene “text messaged an unidentified and 22 unauthorized person with the intention of directing that person not to cooperate with 23 investigators if contacted by the Office of Internal Affairs.” Def.’s SOF (Doc. 54), Exh. 24 25 “C” at Bates No. 471COT0073 (quotations omitted); see also Pl.’s SSOF (Doc. 60), TPD 26 Personnel Rpt. (Exh. “2”) at Bates No. AM008. Lt. Greene was given a thirty (30) hour 27 suspension. Id. Plaintiff later admitted that she tried to minimize Lt. Greene’s conduct 28 because of their continuing relationship, as well as her fear about how he would react to - 10 - 1 2 her providing information regarding the incident to the OIA. Def.’s SOF (Doc. 54), Middleton Depo. 12/14/2016 (Exh. “A”) at 12:23–14:6; Pl.’s SSOF (Doc. 60), Middleton 3 4 5 6 Decl. 4/25/2017 (Exh. “1”) at ¶¶ 27–28. C. Reactions to the 2009 Incident and Investigation While the 2009 Internal Affairs investigation was pending, Sergeant Pete Trusko, 7 8 one of Plaintiff’s supervisors, told Plaintiff that she needed to be careful because she now 9 “had a target on her back” as a result of having complained about Lt. Greene. Pl.’s SOF 10 (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 35. Plaintiff states that she found 11 12 this statement “scary and distressing,” because it came from a supervisor. Id. Moreover, 13 the statement discouraged Plaintiff from complaining further about Lt. Greene’s conduct, 14 because she felt she would be “targeted” for reporting any concerns. Id. Sgt. Trusko also 15 told Plaintiff that he was being pressured by more senior supervisors to “keep a close eye 16 17 18 19 on” and watch Plaintiff, because of her involvement in initiating a potentially serious Internal Affairs investigation against a senior member of the command staff. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 36. 20 21 Plaintiff asserts that she felt like she “was being punished for having told Internal 22 Affairs that Lt. Green had assaulted [her], and [she] was surprised at how little discipline 23 Lt. Greene received given the findings of the Internal Affairs investigators about 24 25 domestic violence and witness tampering.” Id., Exh. “1” at ¶ 39. As a result of the 26 investigation and the statements by Sgt. Trusko, Plaintiff felt it would be pointless to 27 lodge complaints about Lt. Greene’s continuing harassing conduct toward her. Id., Exh. 28 “1” at ¶ 40. - 11 - 1 2 D. Lt. Greene’s Post-2009 Treatment of Plaintiff Beginning in 2009, Lt. Greene insisted that Officer Middleton not wear makeup 3 4 5 6 while on duty; she wear her hair modestly, in a tight bun; she dye her hair a darker shade instead of blonde; and wear sunglasses to cover her eyes. Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 44. Regarding Lt. Greene’s insistence that 7 8 Plaintiff wear sunglasses while on duty, because he did not want her looking at male 9 officers with her “come fuck me eyes,” Plaintiff asserts that Lt. Greene’s statement made 10 her feel humiliated and objectified as a sex object, not a professional police officer. Id., 11 12 Exh. “1” at ¶ 45. Plaintiff states that Lt. Greene also repeatedly said that the only reason 13 she would wear makeup would be to attract other guys so she could sleep with them. Id., 14 Exh. “1” at ¶ 46. Plaintiff also asserts that Lt. Greene insisted that she be speaking with 15 him on his cellular telephone as she entered daily, pre-shift squad briefings, so that he 16 17 18 19 could know that she was not speaking with other mostly male officers and so that male fellow officers would know she was speaking with him. Id., Exh. “1” at ¶ 51. As Plaintiff’s relationship with Lt. Greene continued in 2010, he increasingly 20 21 monitored what she was doing while on duty and questioned her about every detail of her 22 patrol shifts. Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 42. 23 Plaintiff stated that Lt. Greene would become jealous, suspicious, and often angry about 24 25 an interaction she had with male TPD officers or male Tucson Fire Department (“TFD”) 26 personnel. Id., Exh. “1” at ¶ 43. Plaintiff asserts that while she was on duty, Lt. Greene 27 would call her a cunt, whore, or other variations thereof, and accuse Plaintiff of wanting 28 to “whore around” with male officers and TFD personnel. Id., Exh. “1” at ¶ 46. Lt. - 12 - 1 2 Greene would call Plaintiff names via text message, in person, and by phone. Id., Exh. “1” at ¶ 48. Plaintiff further asserts that this vulgar and sexually accusing language while 3 4 5 6 she was on duty was humiliating, often made her feel physically ill, and interfered with her ability to perform her patrol duties. Id. Plaintiff recounts one occasion on which Lt. Greene called her while she was on 7 8 duty and said that he had driven past her in her patrol car and could see that she had 9 “slapped on a shit ton of makeup” and that she was “all done up for the guys.” Pl.’s 10 SSOF (Doc. 60), Exh. “1” at ¶ 49. When Plaintiff told Lt. Greene that she was not 11 12 wearing any make up, he demanded that she prove it by sending him a picture of her face. 13 Id. Plaintiff felt like Lt. Greene was following her during her patrol shift, and was scared 14 and physically intimidated. Id. Plaintiff further asserts that Lt. Greene would call or text 15 message her, demanding to know where she was and what she was doing in order to 16 17 18 19 ensure that she was not around male officers. Id., Exh. “1” at ¶ 50. Lt. Greene would ask Plaintiff to send pictures of her locations to prove her whereabouts. Id. Plaintiff believes that Lt. Greene was regularly monitoring her patrol activities, 20 21 because he would rather ask her things that he could only know if he were monitoring her 22 on-duty activities. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 52. Plaintiff further states that 23 from 2009 through 2012, if she did not affirmatively keep Lt. Greene informed of her 24 25 location and actions, he would regularly get angry and accuse her of flirting with male 26 officers, “whoring around,” or having “fuck buddies.” Id., Exh. “1” at ¶ 53. Plaintiff 27 provides the following examples of Lt. Greene’s treatment of her while she was on duty: 28 - 13 - 1 2 a) In later 2009, Plaintiff discovered an elderly man with memory problems seemingly lost in a park, and helped have him returned to his family. TPD 3 4 5 6 issued a department-wide commendation congratulating her on her actions. In response, Lt. Greene called Plaintiff, belittling her, referring to her as a “fucking attention grabbing whore” and using other profanity and vulgarities; 7 8 b) In approximately May 2010, Lt. Greene called Plaintiff immediately after she 9 had been dispatched to respond to a nearby car accident scene where there 10 were male TFD personnel on scene, and said, “you fucking cock juggling 11 12 13 14 15 whore, you jumped all over that call,” insinuating that Plaintiff had responded to the call only to flirt with TFD personnel; c) In approximately October 2012, Plaintiff apprehended an armed robbery suspect and was then assigned to transport the arrest suspect to the main 16 17 18 19 downtown police station. Lt. Greene again accused her of being a “fucking attention seeking whore” and of having wanted to take the suspect downtown because she wanted to “go shake [her] ass” in front of male officers and 20 21 22 23 24 25 command staff at the main station; d) Regarding performing pat downs on male suspects for weapons, Lt. Greene told Plaintiff that he knew “how [she] like[d] to grab their cocks”; e) As part of prisoner transport duty, Plaintiff was holding a handcuffed male 26 suspect by the arm and escorting him into the downtown police station through 27 the parking garage, when she noticed Lt. Greene parked nearby in his City- 28 assigned unmarked car. Lt. Greene “peeled out” as he drove away and later - 14 - 1 2 told Plaintiff that “it was nice to see [her] arm [in] arm” with the suspect and that they looked like a “happy couple”; 3 4 5 6 f) Plaintiff was assigned to prisoner transport duty with Christina Davis, another female officer, and Lt. Greene told Plaintiff that he did not want her riding along with Officer Davis, because he thought Officer Davis was “such a 7 8 fucking whore”; 9 g) In late 2011 or early 2012, Lt. Greene looked up the photo and information 10 about a fellow male officer, John Collamore, with whom Plaintiff had worked 11 12 13 14 15 on a call. After the call, Lt. Greene telephone Plaintiff to ask if Officer Collamore’s blue eyes “made her wet”; h) In or about September 2012, Plaintiff was on a patrol shift and parked her squad car at a Circle K to use the restroom. When she came out, she 16 17 18 19 encountered two (2) male TFD personnel and exchanged small talk about a call. The following day, Lt. Greene confronted Plaintiff and demanded to know why she was not wearing sunglasses when she approached and spoke 20 21 22 23 24 25 with the TFD personnel. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 54. Over time, Lt. Greene’s conduct degraded from sexually discriminatory verbal abuse to increasingly frequent threats of physical violence. Id., Exh. “1” at ¶ 55. 26 Plaintiff alleges that Lt. Greene made statements about wanting to shove his fist down her 27 throat, and told her that if she tried to leave him he would bash in her face and shoot her 28 if he saw her again. Id. In or about August 2012, Lt. Greene told Plaintiff that he would - 15 - 1 2 “put [her] in a grave so [she] could rot like [she] deserved[,]” because she had been on a call where numerous male officers and command staff had responded to assist. Id., Exh. 3 4 5 6 “1” at ¶ 57. Plaintiff also alleges that Lt. Greene made threats against her elementary school aged daughter if Plaintiff ended their relationship. Id., Exh. “1” at ¶ 73. Plaintiff further alleges that Lt. Greene appeared at crime scenes or incident locations where 7 8 Plaintiff was working, despite not having a legitimate police related business reason to be 9 there. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 56. Plaintiff asserts that Lt. Greene’s 10 statements and conduct toward her, while she was on duty and about her actions while on 11 12 duty, caused her to feel fear, threatened, beaten down, trapped, depressed, and defeated. 13 Id., Exh. “1” at ¶ 58. This conduct also resulted in Plaintiff suffering weight loss, trouble 14 sleeping, and physical illness. Id., Exh. “1” at ¶ 63. Plaintiff began seeing a psychologist 15 in 2010 in an effort to help her deal with the emotional distress and anxiety stemming 16 17 18 19 from her relationship with Lt. Greene. Id., Exh. “1” at ¶ 62. During 2010 through 2012, Plaintiff would take leave from work due to her depression and illness arising from her relationship with Lt. Greene. Id., Exh. “1’ at ¶ 61. 20 21 Plaintiff states that later in her relationship with Lt. Greene, there were times when 22 she just parked her patrol car while on duty and did not seek out or respond to calls, 23 because Plaintiff was afraid of what Lt. Greene’s reaction would be if she did something 24 25 that he did not like or failed to keep him informed of her activities. Pl.’s SSOF (Doc. 60), 26 Exh. “1” at ¶ 59. Plaintiff was also afraid to respond to calls involving TFD personnel or 27 certain male TPD officers. Id., Exh. “1” at ¶ 60. Plaintiff further alleges that other male 28 officers avoided her because of their fear of crossing Lt. Greene. Id., Exh. “1” at ¶ 67. - 16 - 1 Plaintiff’s father was also employed at TPD and held the rank of Lieutenant at the 2 time she was employed, until his retirement in June 2009.7 See Def.’s SOF (Doc. 54), 3 4 5 6 Middleton Depo. 12/15/2016 (Exh. “B”) at 17:2–8; Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 69. Plaintiff’s father was very popular in the police department. Def.’s SOF (Doc. 54), Exh. “B” at 17:20–18:9. Plaintiff overheard a conversation between her father and 7 8 Captain Mike Gillooly, in which Gillooly warned that Plaintiff staying in a relationship 9 with Lt. Greene would ruin her career. Def.’s SOF (Doc. 54), Exh. “B” at 23:7–17, 10 28:25–29:25; see also Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 69. Middleton further stated 11 12 that she was often warned by people at TPD to stay away from Lt. Greene, because of his 13 temper and because he hated the world. See Def.’s SOF (Doc. 54), Exh. “B” at 21:1– 14 22:5, 34:14–35:6, 93:14–95:22. 15 In 2011, a fellow officer on prison transfer and Plaintiff’s sergeant advised her to get out of the relationship when Lt. Greene was 16 17 18 19 overheard mistreating her on a telephone call.8 Id., Exh. “B” at 47:11–49:13. Plaintiff admits that no one at TPD other than Lt. Greene told her that she would gain or lose any employment benefit by staying in a sexual relationship with Lt. Greene. 20 21 Id., Exh. “B” at 22:16–24:20. At no point during her employment did anyone from 22 TPD’s supervisory or command staff approach Plaintiff outside of an Internal Affairs 23 investigation and ask her about Lt. Greene’s conduct toward her as it related to her work 24 25 26 27 28 7 Plaintiff’s declaration indicates that her father was a Captain; however, her Separate Statement of Facts, as well as Defendant’s Statement of Facts, places his rank as a Lieutenant. Plaintiff’s father’s precise rank is immaterial. 8 Defendant’s SOF further states that Plaintiff did not expect the sergeant to interfere with her private consensual relationship, but that is not an accurate portrayal of Plaintiff’s complete response. Although she answers “no” to that question, she goes on to say that “[i]t really didn’t become that private when it was so involved with work . . . [s]o[,] in a sense[,] it really wasn’t private anymore.” Def.’s SOF (Doc. 54), Exh. “B” at 5–22. - 17 - 1 2 duties or performance. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 70. Plaintiff asserts that no one from Internal Affairs or any other City department took her concerns regarding Lt. 3 4 5 6 Greene’s conduct toward her seriously, nor were there any investigations. Id., Exh. “1” at ¶ 66. Plaintiff further asserts that she did not formally report Lt. Greene’s history of verbal abuse to TPD management or the City’s Equal Employment Office (“EEO”), 7 8 9 10 11 12 because she was too afraid of Lt. Greene to do so. Id., Exh. “1” at ¶ 75. E. The May 2010 Investigation In May 2010, Plaintiff was investigated by OIA for failing to respond to a radio call for assistance from another officer, Pierre De La Ossa. See Def.’s SOF (Doc. 54), 13 OIA Case No. 10-0363, Middleton Interview (Exh. “D”). Plaintiff stated that she did not 14 respond to the radio call due to issues with her force commander and that she did not feel 15 comfortable around Officer De La Ossa. Id., Exh. “D” at Bates Nos. 471COT2981:28– 16 17 18 19 471COT2982:38. Plaintiff further acknowledged that she needed to put her feelings about Officer De La Ossa aside while working. Id., Exh. “D” at Bates No. 471COT2982:29–38. Plaintiff stated that Lt. Greene did not dictate what she did on the 20 21 job, did not contact people to interfere with her job performance, nor did she believe that, 22 in light of his character, Lt. Greene had or would contact someone and question them 23 about what they had said about her on the job. 24 25 Id., Exh. “D” at Bates Nos. 471COT2982:40–471COT2983:14, 471COT2987:4–23. 26 Plaintiff indicated that she was just parking her patrol car while on duty and not 27 responding to calls for assistance due to the stress of the investigation of the December 28 2009 incident, and not due to her personal relationships. Id., Exh. “D” at Bates Nos. - 18 - 1 2 471COT2987:25–471COT2989:7. Plaintiff further indicated that these issues would not continue in the future, and that there was nothing else that she wanted to say regarding 3 4 5 6 the situation. Id., Exh. “D” at Bates No. 471COT2990:9–40. F. Plaintiff’s 2011 Complaint In January 2011, Plaintiff filed a Personnel Report with her sergeant alleging that 7 8 9 10 11 12 13 14 15 Officer Pierre De La Ossa was involved in vandalizing her car and making anonymous telephone calls to harass her. Def.’s SOF (Doc. 54), OIA Case No. 11-0030, TPD Investigation Summ. Rpt. (Exh. “E”) at Bates No. 471COT0634. Plaintiff further indicated that she did not have proof regarding who was responsible, but suspected Officer De La Ossa’s involvement. Id. G. The 2012 Incidents 1. The Trout Incidents 16 17 18 19 In May 2012, Plaintiff thought that Lt. Greene was having a romantic relationship with another woman. Def.’s SOF (Doc. 54), OIA Case No 12-0508, TPD Investigation Rpt. (Exh. “F”) at Bates No. 471COT2064. Plaintiff obtained a license plate for Sabian 20 21 Trout, the person she believed Lt. Greene to be seeing, and asked Officer Rudy 22 Dominguez to use the police computer network to obtain confidential information 23 regarding Ms. Trout. Id., Exh. “F” at Bates Nos. 471COT2064, 471COT2164. Plaintiff 24 25 26 27 28 lied to Officer Dominguez about the reason she needed the license plate information, so that he would believe her request was for police business. Id. On November 15, 2012, Ms. Trout filed an OIA complaint against Plaintiff. Def.’s SOF (Doc. 54), Exh. “F” at Bates No. 471COT2062 & OIA Case No. 12-0532, - 19 - 1 2 TPD Investigation (Exh. “H”) at Bates No. 471COT0704. Ms. Trout reported that she had received several calls from a restricted number which she did not answer, as well as 3 4 5 6 calls from a restricted number which when she answered Plaintiff was on the line. Id., Exh. “F” at Bates No. 471COT2062 & Exh. “H” at Bates No. 471COT0704. In the second call that Ms. Trout answered, Ms. Trout described Plaintiff as “out of control, 7 8 belligerent, insulting, using profanity, and calling her names.” Def.’s SOF (Doc. 54), 9 Exh. “H” at Bates No. 471COT0704 (internal quotations omitted); see also Exh. “F” at 10 Bates No. 471COT2062. Ms. Trout further reported that Lt. Greene had told her that 11 12 Plaintiff knew Ms. Trout’s last name and date of birth. Def.’s SOF (Doc. 54), Exh. “H” 13 at Bates No. 471COT0704. Ms. Trout also stated that this information made her so 14 scared that she could not sleep the previous night. Id. Ms. Trout stated that Lt. Greene 15 also informed her that Plaintiff had sent him a text message revealing that she knew 16 17 18 19 where Ms. Trout worked. Id. Ms. Trout believed that the only way Plaintiff could have obtained this information was from checking her license plate on confidential police networks. Id. Ms. Trout was worried that Plaintiff would follow her or physically harm 20 21 her. Def.’s SOF (Doc. 54), Exh. “F” at Bates No. 471COT2062. 22 On June 12, 2013, Ms. Trout sought an Injunction Against Harassment as to 23 Plaintiff based upon the allegations that on June 6, 2013, “Ms. Middleton beat on the 24 25 26 doors and windows of a residence I was visiting with a pipe,” calling Ms. Trout obscene names and demanding that she come out.9 Def.’s SOF (Doc. 54), Pima County Justice 27 9 28 Defendant refers to a Protective Order; however, Ms. Trout checked the box seeking an Injunction Against Harassment not an Order of Protection. - 20 - 1 2 Court Case No. CV13013508, Petition for Injunction Against Harassment (Exh. “K”) at Bates Nos. AM146–AM148. In her petition, Ms. Trout indicated that those encouraging 3 4 5 her to seek an injunction believed Plaintiff was a danger to Ms. Trout and that Ms. Trout’s life may be in jeopardy because of Plaintiff’s threatening behavior.10 Id. 6 2. The Hause Incidents 7 8 9 10 11 12 In November 2012, Plaintiff thought Lt. Greene was having a romantic relationship with another woman, Valerie Hause. Def.’s SOF (Doc. 54), Exh. “F” at Bates Nos. 471COT2063. Plaintiff again asked another officer to obtain personal identification information for her personal purposes. Id., Exh. “F” at Bates No. 13 471COT2064, 471COT2170. She did not disclose that it was for personal reasons, and 14 believed that the officer thought it was for official business. Id., Exh. “F” at Bates No. 15 471COT2064. Plaintiff also asked Communications Supervisor Paul Liams to run Ms. 16 17 18 19 Hause’s license plate, and lied to him about why she needed the information. Id. Plaintiff stated that she knew what she had done was wrong. Id. Between November 25 and 28, 2012, Plaintiff made several calls to Ms. Hause.11 20 21 Def.’s SOF (Doc. 54), Exh. “F” at Bates No. 471COT2063. Ms. Hause reported to OIA 22 that she was becoming uneasy about the telephone calls from Plaintiff. Id. Ms. Hause 23 agreed to return a call to Plaintiff from the OIA office with police monitoring their 24 25 26 27 28 10 Defendant attributes these beliefs to Ms. Trout; however, the petition attributes these fears to those encouraging her to seek an injunction. 11 Defendant characterizes Plaintiff’s calls to Ms. Hause as “harassing.” See Def.’s SOF (Doc. 54) at ¶ 23. Plaintiff objects to this characterization. See Pl.’s SSOF (Doc. 60) at 3 & Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 92. For purposes of this motion, it is only relevant that Plaintiff called Ms. Hause on more than one occasion, which is undisputed. - 21 - 1 2 conversation. Id. During Ms. Hause’s subsequent telephone conversation with Plaintiff, Plaintiff would not reveal how she had obtained Ms. Hause’s identification information. 3 4 5 Id. Additionally, one of the statements by Plaintiff was difficult for investigators to discern, and was interpreted as a possible threat towards Ms. Trout. Id. 6 3. The End of Plaintiff’s Relationship with Lt. Greene 7 8 In November 2012, Plaintiff finally ended her relationship with Lt. Greene. Pl.’s 9 SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 74. Plaintiff asserts that after 10 November 2012, she found any communication from Lt. Greene to be offensive and 11 12 intimidating. Id., Exh. “1” at ¶ 80. Plaintiff alleges that Lt. Greene continued to contact 13 her in 2013, with text messages including asking whether she was married or gotten any 14 more tattoos; saying Happy Valentine’s Day; and wishing her a Happy Mother’s Day. 15 Id., Exh. “1” at ¶ 82. Plaintiff further alleges that in February or March 2013, Lt. Greene 16 17 18 19 text messaged her lyrics from a song apparently relevant to their relationship, as well as a message later in March 2013 about hearing a song at the gym which made him sad. Id., Exh. “1” at ¶¶ 83, 89. In June 2013, Plaintiff sought an Order of Protection against Lt. 20 21 Greene, which was granted. Pl.’s SSOF (Doc. 60), Exh. “1” at ¶ 91. 22 H. 23 The police computer network used to obtain the identification of Ms. Trout and 24 25 TPD Computer Policy Ms. Hause was to be used for official police business only, and was not to be used for 26 personal reasons. Def.’s SOF (Doc. 54), TPD Info. Sec. Agreement (Exh. “G”) at Bates 27 No. 471COT0051. TPD provided its Information Security Agreement to Plaintiff shortly 28 after she was hired, and which she signed acknowledging her receipt and understanding - 22 - 1 2 that access to the police information and data networks was for official use only and that access for unauthorized purposes was prohibited. Id. Plaintiff also acknowledged that 3 4 5 she knew a violation of these policies subjected her to criminal prosecution under applicable state and federal law and discipline up to and including termination. Id. 6 I. OIA Investigations into Plaintiff’s Actions 7 On November 15, 2012, OIA opened an administrative investigation into 8 9 Plaintiff’s misuse of confidential police computer information. See Def.’s SOF (Doc. 10 54), OIA Case No. 12-0508, TPD Investigation Rpt. (Exh. “F”). On November 25, 2012, 11 12 OIA opened a criminal investigation of Plaintiff’s misuse of confidential computer 13 information. See Def.’s SOF (Doc. 54), OIA Case No. 12-0532, TPD Investigation (Exh. 14 “H”). 15 On November 28, 2012, during the monitored telephone conversation between 16 17 18 19 Ms. Hause and Plaintiff, the decision was made to make immediate contact with Plaintiff regarding the ongoing investigation. Def.’s SOF (Doc. 54), Exh. “F” at Bates No. 471COT2063. OIA officers contacted Plaintiff through her mother and ordered her to 20 21 meet them at her mother’s home. Id., Exh. “F” at Bates No. 471COT2064. When 22 Plaintiff arrived at her mother’s home, “she pulled sharply into her mother’s driveway, 23 quickly turned her car off, and exited her vehicle.” Id. Plaintiff then removed her 24 25 daughter from the back seat. Id. The officers smelled intoxicants on Plaintiff’s person. 26 Id. The officers then accompanied Plaintiff to her residence to retrieve her credentials 27 and weapon. Def.’s SOF (Doc. 54), Exh. “F” at Bates No. 471COT2064. While at 28 Plaintiff’s home, the reporting officer indicated that she appeared unsteady on her feet. - 23 - 1 2 Id. OIA requested Oro Valley Police assistance to perform a DUI investigation of Plaintiff. Id. The Oro Valley Police did not pursue criminal DUI charges. Id. 3 4 5 6 On November 29, 2012, Plaintiff was placed on imposed administrative leave with pay. Def.’s SOF (Doc. 54), City of Tucson Personnel Action Request (Exh. “G”) at Bates No. 471COT0006. Plaintiff did not report any physical or verbal abuse by Lt. 7 8 Greene to TPD or otherwise inform her supervisors, TPD management, the City’s Office 9 of Equal Opportunity or any other City department or division about any physical verbal 10 abuse by Greene other than her statements as a witness/subject in the investigation of the 11 12 December 2009 altercation until after she had been placed on administrative leave. 13 Def.’s SOF (Doc. 54), Middleton Depo. 12/15/2016 (Exh. “B”) at 106:8–109:18, 116:5– 14 23, 118:3–119:5. Plaintiff does not have any personal knowledge of anything that Lt. 15 Greene did to influence her employment after she was placed on administrative leave. 16 17 18 19 Id., Exh. “B” at 76:1–9. Plaintiff alleges that Lt. Greene continued to text her while she was on leave, but still employed with TPD. Pl.’s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶¶ 79–86. Plaintiff further asserts that these messages were 20 21 unwelcome. See id. 22 On February 4, 2013, Plaintiff’s attorney Noah J. Van Amburg wrote a letter to 23 TPD Chief Villasenor regarding Plaintiff’s pending investigation and administrative 24 25 action. Def.’s SOF (Doc. 54), OIA Case No. 13-0113, Investigation Summ. Rpt. (Exh. 26 “I”) at Bates Nos. 471COT0648–471COT0650. Mr. Van Amburg asked TPD to consider 27 Lt. Greene’s conduct towards Plaintiff as mitigating factors in her pending misuse of 28 confidential information investigation. Id. Mr. Van Amburg further alleged that Lt. - 24 - 1 2 Greene monitored Plaintiff’s daily work activities, confronted her about working with other males, appeared at crime scenes where she was working without a reason to be 3 4 5 there, had previously threatened to use his position in TPD to get Plaintiff fired and forced her to conceal physical abuse perpetrated by him. Id. 6 OIA opened an investigation based upon the allegations in Mr. Van Amburg’s 7 8 February 2013 letter. Id., Exh. “I” at Bates No. 471COT0647. OIA interviewed Plaintiff 9 and Detective Pierre De La Ossa as part of its investigation. Id. There was no indication 10 that Lt. Greene was ever questioned or interviewed. See id. OIA concluded that there 11 12 13 14 15 were no violations of TPD policies. Id. On March 4, 2013, OIA closed its investigation. Id. J. Plaintiff’s Criminal Case and Resignation On March 28, 2013, OIA provided information from the criminal investigation to 16 17 18 19 the Pima County Attorney’s Office. Def.’s SOF (Doc. 54), OIA Case No. 12-0532, TPD Investigation (Exh. “H”) at Bates No. 471COT0703. On May 31, 2013, Plaintiff was indicted by a Pima County Grand Jury on three (3) felony charges of computer tampering 20 21 22 23 24 25 in violation of A.R.S. § 13-2316(A). Def.’s SOF (Doc. 54), Arizona Superior Court, Pima County, Case No. CR20132259-001, Direct Indictment (Exh. “J”). On June 13, 2013, Plaintiff resigned from TPD effective immediately. Def.’s SOF (Doc. 54), TPD Personnel Rpt. (Exh. “J”) at Bates No. 471COT1841. Prior to her 26 resignation, Plaintiff was aware of her May 31, 2013 indictment. Def.’s SOF (Doc. 54), 27 Middleton Depo. 12/15/2016 (Exh. “B”) at 91:17–92:13. On June 14, 2013, Plaintiff was 28 arraigned on the three (3) felony charges. See Def.’s SOF (Doc. 54), Arizona Superior - 25 - 1 Court, Pima County, Case No. CR20132259-001, Minute Entry 6/7/2013 at Bates No. 2 471COT1521–471COT1522.12 On August 6, 2013, pursuant to a plea agreement, 3 4 5 6 Plaintiff pled guilty to two (2) counts of computer tampering which were classified as class six undesignated offenses. See Def.’s SOF (Doc. 54), Arizona Superior Court, Pima County, Case No. CR20132259-001, Minute Entry 8/6/2013 (Exh. “J”) at Bates No. 7 8 9 10 471COT1523. On December 20, 2013, Plaintiff filed a charge with the Arizona Civil Rights Division (“ACRD”) that the City had violated Title VII. Def.’s SOF (Doc. 54), Charge of Discrimination (Exh. “J”) at Bates Nos. 471COT1483–471COT1484. 11 12 K. Other Individuals Investigated Regarding Misuse of Police Computers 13 Since 2006, OIA has received complaints and investigate thirteen (13) cases, 14 including Plaintiff’s, involving charges that a TPD employee misused confidential police 15 computer data for non-law enforcement reasons. Def.’s SOF (Doc. 54), Ramirez Decl. 16 17 18 19 (Exh. “N”) at ¶ 4. Of the thirteen (13) cases, seven (7) involved male, and six (6) involved female, employees. Id., Exh. “N” at ¶¶ 5–6. Eight (8) of the employees were terminated or resigned, including five (5) males and three (3) females. Id. Four of the 20 21 22 employees were prosecuted by the Pima County Attorney’s Office, including two (2) males and two (2) females. Id. 23 24 25 26 27 28 12 This Minute Entry only reflects a continuance of Plaintiff’s arraignment until June 14, 2013. A review of the state court docket, however, indicates that Plaintiff’s initial appearance proceeded on June 14, 2013. “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The docket sheet of the Arizona Superior Court, Pima County, is proper material for judicial notice. See Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 n. 3 (taking judicial notice of the docket from a proceeding before another tribunal). - 26 - 1 2 II. STANDARD OF REVIEW 3 4 5 6 Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), “there is no genuine issue as to any 7 8 material fact and [] the moving party is entitled to a judgment as a matter of law.” Fed. 9 R. Civ. P. 56(c). A fact is “material” if it “might affect the outcome of the suit under the 10 governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury 11 12 could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 13 2510. Thus, factual disputes that have no bearing on the outcome of a suit are irrelevant 14 to the consideration of a motion for summary judgment. Id. In order to withstand a 15 motion for summary judgment, the nonmoving party must show “specific facts showing 16 17 18 19 that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Moreover, a “mere scintilla of evidence” does not preclude the entry of summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 20 21 2512. The United States Supreme Court also recognized that “[w]hen opposing parties 22 tell two different stories, one of which is blatantly contradicted by the record, so that no 23 reasonable jury could believe it, a court should not adopt that version of the facts for 24 25 26 purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). 27 28 - 27 - 1 2 III. ANALYSIS At oral argument, Plaintiff conceded that her claims for quid pro quo sexual 3 4 5 6 harassment, disparate treatment, and retaliation are barred by the statute of limitations. As such, the only claims currently before the Court are Plaintiff’s hostile work environment and constructive discharge claims. 7 8 9 10 11 12 13 14 15 16 17 18 A. Sexual Harassment—Hostile Work Environment 1. Hostile Work Environment—In General Title VII of the Civil Rights Act of 1964 provides that: It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 19 20 42 U.S.C. § 2000e-2(a). “Sexual harassment falls into two major categories: hostile work 21 environment and quid pro quo.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th 22 Cir. 2000) (citations omitted). “A hostile work environment claim involves a workplace 23 atmosphere so discriminatory and abusive that it unreasonably interferes with the job 24 25 performance of those harassed.” Id. A quid pro quo claim occurs “where a supervisor 26 demands sexual favors in return for a job benefit.” Id. 27 28 - 28 - 1 2 To establish “a prima facie case of hostile work environment, a person must show that: (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this 3 4 5 6 conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quotations and 7 8 citations omitted). Further, Plaintiff must show that her “workplace [was] permeated 9 with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or 10 pervasive to alter the conditions of the victim’s employment and create and abusive 11 12 working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 13 370, 126 L.Ed.2d 295 (1993) (quotations and citations omitted). The conduct must create 14 an objectively hostile or abusive work environment, and the victim must subjectively 15 perceive the environment to be abusive in order to implicate Title VII. Id. at 21–22, 114 16 17 18 19 S.Ct. at 370. “Objective hostility is determined by examining the totality of the circumstances and whether a reasonable person with the same characteristics as the victim would perceive the workplace as hostile.” Craig, 496 F.3d at 1055 (citations 20 21 omitted). Subjective hostility requires a showing that the employee “perceived her work 22 environment to be hostile, and that a reasonable person in her position would perceive it 23 to be so.” Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th Cir. 24 25 2005) (citations omitted). 26 The Ninth Circuit recognizes that “an employer may be held liable for sexual 27 harassment on the part of a private individual . . . where the employer either ratifies or 28 acquiesces in the harassment by not taking immediate and/or corrective actions when it - 29 - 1 2 knew or should have known of the conduct.” Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 756 (9th Cir. 1997); see also Little v. Windermere Relocation, Inc., 3 4 5 6 301 F.3d 958 (9th Cir. 2002). Moreover, “when no tangible employment action is taken, . . . the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence[.]” Pennsylvania State Police v. Suders, 542 U.S. 129, 7 8 137, 124 S.Ct. 2342, 2349 (2004). “The defense comprises two necessary elements: (a) 9 that the employer exercised reasonable care to prevent and correct promptly any sexually 10 harassing behavior, and (b) that the plaintiff employee unreasonably failed to take 11 12 13 14 15 advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. (citations omitted); see also Craig, 496 F.3d at 1055. 2. Statute of Limitations On December 20, 2013, Plaintiff filed a charge that the City violated Title VII 16 17 18 19 with the Arizona Civil Rights Division. Def.’s SOF (Doc. 54), Exh. “J” at Bates No. 471COT1483–471COT1484. “Section 2000e-5(e)(1) requires that a Title VII plaintiff file a charge with the Equal Employment Opportunity Commission (“EEOC”) either 180 20 21 or 300 days after the alleged unlawful employment practice occurred.” National R.R. 22 Passenger Corp. v. Morgan, 536 U.S. 101, 104–05, 122 S.Ct. 2061, 2068 (2002) (internal 23 quotations omitted). Based upon the filing date of December 20, 2013, the limitations 24 25 period began the 300 days prior on February 24, 2013. See id. 26 Plaintiff correctly points out that unlike discrete acts, hostile environment claims 27 by “their very nature involve[] repeated conduct.” Id. at 115, 122 S.Ct. at 2073 (citations 28 omitted). As such, “[t]he ‘unlawful employment practice’ . . . cannot be said to occur on - 30 - 1 2 any particular day.” Id. Hostile environment claims “occur[] over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not 3 4 5 6 be actionable on its own.” Id. (citations omitted). Accordingly, “[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining 7 8 liability.” National R.R. Passenger Corp., 536 U.S. at 117, 122 S.Ct. at 2074. 9 Here, Plaintiff has alleged an ongoing pattern of harassment by Lt. Greene. It is 10 undisputed, however, that Plaintiff was placed on administrative leave in November 11 12 2012. Even accepting that Plaintiff has established the first two criteria of a prima facie 13 case for hostile work environment—she was subjected to verbal or physical conduct of a 14 sexual nature, and this conduct was unwelcome—once she is on leave any contact from 15 Lt. Greene cannot alter the conditions of her employment and create an abusive working 16 17 18 19 environment. As such, any harassment suffered by Plaintiff after February 2013 cannot be an act contributing to her claim. The Court is constrained by the law, and therefore must grant Defendant’s motion for summary judgment as to Plaintiff’s hostile work 20 21 environment claim. 22 B. 23 “The constructive-discharge doctrine contemplates a situation in which an 24 25 Constructive Discharge employer discriminates against an employee to the point such that [her] ‘working 26 conditions become so intolerable that a reasonable person in the employee’s position 27 would have felt compelled to resign.’” 28 Green v. Brennan, 136 S.Ct. 1769 (2016) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, - 31 - 1 2 159 L.Ed.2d 204 (2004)). To establish a claim for constructive discharge “[a] plaintiff must prove first that [s]he was discriminated against by [her] employer to the point where 3 4 5 6 a reasonable person in [her] position would have felt compelled to resign[,] . . . [b]ut [s]he must also show that [s]he actually resigned. Green, 136 S.Ct. at 1777 (citations omitted). 7 In this case, Plaintiff was placed on leave in November 2012 pending an Internal 8 9 Affairs investigation and subsequent criminal charges for abusing the TPD computer 10 system. While the facts Plaintiff alleges regarding Lt. Greene might support a denial of 11 12 summary judgment prior to November 2012, once she is investigated and indicted no 13 reasonable person could find that her resignation was because of discrimination. A 14 criminal indictment is fatal to a career in law enforcement. Moreover, the investigation 15 and indictment did not arise from the discrimination of any member of TPD, but from 16 17 18 19 Plaintiff’s own choices. Accordingly, Defendant is entitled to summary judgment as to constructive discharge. IV. CONCLUSION 20 For the reasons discussed, supra, Defendant City of Tucson’s Motion for 21 22 Summary Judgment (Doc. 53) should be granted. 23 24 25 26 27 V. RECOMMENDATION The Magistrate Judge recommends that the District Judge enter an order GRANTING Defendant City of Tucson’s Motion for Summary Judgment (Doc. 53). 28 - 32 - 1 2 Pursuant to 28 U.S.C. '636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after 3 4 5 6 being served with a copy of this Report and Recommendation. A party may respond to another party=s objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District 7 8 9 10 Judge. If objections are filed, the parties should use the following case number: CV-150185-TUC-JGZ. Failure to file timely objections to any factual or legal determination of the 11 12 13 Magistrate Judge may result in waiver of the right of review. Dated this 17th day of July, 2017. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 33 -