Volland v. Mobile Mini Incorporated

Filing 72

ORDER denying 55 Defendant's Motion for Summary Judgment; denying 63 Plaintiff's Motion to Strike the Declaration of Katherine Callaway. Signed by Judge G Murray Snow on 7/16/12.(TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kuy Volland, Plaintiff, 10 11 vs. 12 Mobile Mini, Inc., 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-10-02745-PHX-GMS ORDER 15 16 Pending before the Court are Defendant’s Motion for Summary Judgment (Doc. 55) 17 and Plaintiff’s Motion to Strike the Declaration of Katherine Callaway (Doc. 63). For the 18 reasons stated below, both motions are denied. BACKGROUND 19 20 Plaintiff, an Asian-American woman, alleges that Defendant, a national publicly- 21 traded company headquartered in Tempe, Arizona that leases and sells portable storage 22 containers and related devices, subjected her to a hostile work environment and retaliated 23 against her when she complained that her supervisor made racially and sexually demeaning 24 remarks. (Doc. 1). 25 On October 8, 2007, Plaintiff began working for Defendant as its National Accounts 26 Manager. (Doc. 56 ¶ 17). She reported to Paul Widner, who was Defendant’s Vice President 27 of Sales and Development. (Id. ¶ 20). In December of 2007, Nicholas Scirghio replaced 28 Widner as the Vice President of Sales and Development, and Plaintiff then reported to 1 Scirghio. (Id. at 21). On December 23, 2005, in response to earlier complaints, Scirghio had 2 been issued a written warning that stated “[a]ny repeated complaints of the above issues will 3 lead to further discipline up to and including suspension, demotion, or termination.” (Doc. 4 61-3, Ex. H). 5 In anticipation of acquiring a competitor, Defendant undertook several broad 6 reorganization efforts in early 2008, overseen by Mark Graham, Defendant’s Director of 7 Professional Development. (Doc. 56 ¶ 35). As part of the reorganization, Defendant created 8 a National Account Support Center. (Id. at 37). In addition, the position of National Accounts 9 Manager, held by Plaintiff, was eliminated, and a new position, National Accounts Support 10 Center Manager, was created. (Id. at 38). Graham informed Plaintiff of the changes 11 personally on April 3, 2008, and while Plaintiff took the news calmly, she stated that she did 12 not understand why she was not automatically selected to be the National Accounts Support 13 Center Manager. (Id. at 41). On April 8, 2008, Scirghio sent an email to the Branch Managers 14 and the Branch Office Managers, copying Graham, announcing a number of new positions, 15 including the National Account Support Center Manager. (Doc. 56-3, Ex. 7(B)). The email 16 stated that Defendant’s preference is to “promote from within,” and stated that anyone 17 interested in a position should email Graham or Scirghio. (Id.). 18 Plaintiff applied for the position of National Account Support Center Manager; she 19 also approached Katherine Callaway, Defendant’s Vice President of Human Resources and 20 Risk Management. (Doc. 56-2, Ex. 2 at 98). According to Callaway, the two met “a couple 21 of times.” (Id. at 101). During the meetings, Plaintiff expressed her belief that “it was 22 discrimination that [Scirghio] did not have to re-apply for his job but she had to re-apply for 23 her job.” (Id.). During that meeting or another meeting with Callaway, Plaintiff reported that 24 Steve Bunger, the President and CEO of Defendant, had spoken with Scirghio about Asian 25 reflexology massage, and that Bunger had made a joke about receiving a “happy ending” at 26 the end of the massage. (Id. at 107). When meeting with Plaintiff before Plaintiff was 27 interviewed for the position, Callaway “advise[d] her to wait until after her interview to see 28 what happened,” rather than make a formal complaint. (Id. at 100). Callaway believed that -2- 1 Plaintiff would be hired for the position, and told Plaintiff so. (Id. at 102). She acknowledged 2 in her deposition that one reason she did not investigate the allegation that Scirghio had 3 participated in the telling of a racially and sexually offensive joke was that if she did, “[i]t 4 may have affected [Plaintiff]’s employment in some way or another,” and that Callaway 5 “really wanted [Plaintiff] to have an unbiased shot at that position.” (Id. at 146). 6 Plaintiff was interviewed for the position by Scirghio and Graham. (Doc. 55 ¶ 113). 7 Another internal applicant, Mary Gaskin, was interviewed only by Graham. (Id. ¶ 114). 8 Gaskin was offered the position of National Account Support Center Manager on April 11, 9 2008. (Id. ¶ 130). Plaintiff again met with Callaway, and stated that she believed she had not 10 received the job because Scirghio had retaliated against her, and that Scirghio had engaged 11 in “inappropriate behavior.” (Doc. 56-2, Ex. 2 at 109–10). On April 14, Scirghio emailed 12 Plaintiff, asking her to “list for me all the duties you perform in your roll [sic],” and 13 requesting that she describe the duties of newly-created positions that would be reporting to 14 Gaskin. (Doc. 61-4, Ex. O). Volland responded, but when asked to train someone hired for 15 the newly-created position, she again approached Callaway. Callaway emailed Scirghio, 16 stating that asking Plaintiff to train Gaskin and those who would report to Gaskin was 17 “belittling” because “on one hand she isn’t good enough for the job, but on the other hand 18 you want her to do the job.” (Doc. 6-14, Ex. P). Scirghio responded that “it is obvious to me 19 that we made the right choice with Mary just base [sic] on [Plaintiff]’s actions over the past 20 few days.” (Doc. 61-4, Ex. N). Gaskin herself describes the position that Plaintiff originally 21 held as “the position I pretty much think I took.” (Doc. 61-3, Ex. F at 69). 22 Plaintiff was offered a severance agreement on April 16, 2008, which offered her two 23 weeks pay in exchange for a waiver of any claim of discrimination or retaliation. (Doc. 56-3, 24 Ex. 7(E)). Plaintiff declined to sign the agreement and received no severance. (Doc. 56 ¶ 25 147–48). Plaintiff filed a charge with the Equal Employment Opportunity Commission 26 (“EEOC”) which found on August 31, 2010 that she had been retaliated against by being 27 asked to sign a severance agreement containing unlawful provisions. (Doc. 61-4, Ex M). The 28 EEOC made no finding on any other charge. (Id.). -3- 1 In July of 2008, Gaskin complained to Graham that Scirghio regularly engaged in 2 sexual innuendo at work, favored attractive female employees over others, and engaged in 3 otherwise inappropriate behavior at work. (Doc. 61-3, Ex. F at 41). In November of 2008, 4 after Scirghio attended a dinner with a number of employees as part of a team-building 5 exercise, multiple employees complained that he had engaged in inappropriate behavior at 6 the dinner. (Doc. 61-3, Ex. J). Defendant conducted an extensive investigation and a 7 “Memorandum/ Employee Warning Report” was prepared and dated December 18, 2008. 8 (Doc. 61-3, Ex. K). There is no evidence in the record of Scirghio receiving any other 9 discipline based on the December 2008 investigation. (Doc. 61-2, Ex. A at 91). 10 Plaintiff filed this lawsuit on December 20, 2010. When Callaway was deposed, she 11 stated that she did not know whether Defendant had a “zero-tolerance policy” with regard 12 to sexual harassment, that she does not “work by consulting policy” but instead evaluates 13 “the working relationship as a whole and the people within the relationship” and would use 14 her “instinct and my intuition” rather than any written policy to determine whether someone 15 needed to be disciplined. (Doc. 63-1, Ex. C at 26, 48). Subsequently she submitted a 16 declaration that quotes extensively from Defendant’s written sexual harassment policy. 17 (Doc.63-1, Ex. A). 18 19 Defendant has moved for summary judgment on the merits of Plaintiff’s suit, and Plaintiff has moved to strike Callaway’s declaration. (Docs. 55, 63). 20 21 DISCUSSION I. Legal Standards 22 A. 23 When a party repudiates a previous deposition in a subsequent affidavit, the affidavit 24 testimony cannot be relied upon to “‘create’ an issue of fact and avoid summary judgment.” 25 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991). Nevertheless, 26 “[a]ggressive invocation of the rule also threatens to ensnare parties who may simply have 27 been confused during their deposition” and therefore the rule should be applied cautiously. 28 Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). Motion to Strike -4- 1 B. 2 Summary judgment is appropriate if the evidence, viewed in the light most favorable 3 to the nonmoving party, shows “that there is no genuine issue as to any material fact and that 4 the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). Only disputes 5 over facts that might affect the outcome of the suit will preclude the entry of summary 6 judgment, and the disputed evidence must be “such that a reasonable jury could return a 7 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 “[A] party seeking summary judgment always bears the initial responsibility of informing 9 the district court of the basis for its motion, and identifying those portions of [the record] 10 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. 11 v. Catrett, 477 U.S. 317, 323 (1986). Summary Judgment 12 “Issues of credibility, including questions of intent, should be left to the jury.” Harris 13 v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (citations omitted). See also Consol. Elec. Co. 14 v. United States, 355 F.2d 437, 438 (9th Cir. 1966) (reversing summary judgment and stating 15 that “[w]hen an issue requires determination of state of mind, it is unusual that disposition 16 may be made by summary judgment”). Because credibility determinations and motive are 17 particularly important considerations in employment discrimination cases, the Ninth Circuit 18 has held that “in the context of employment discrimination, we have emphasized the 19 importance of zealously guarding an employee’s right to full trial.” Davis v. Team Elec. Co., 20 520 F.3d 1080, 1089 (9th Cir. 2008). 21 II. Analysis 22 A. Motion to Strike 23 It is not proper to invoke the sham affidavit rule to strike Callaway’s affidavit. The 24 affidavit is not in fact in conflict with Callaway’s deposition testimony. The portions of the 25 affidavit to which Plaintiff objects detail Defendant’s written anti-discrimination policy. The 26 fact that such a policy exists does not contradict Callaway’s statement that she does not work 27 by consulting policy but instead evaluates whether or not one employee has sexually harassed 28 another based on her intuition and instinct. (Doc. 63-1, Ex. C at 26, 48). In her statement of -5- 1 facts in opposition to Defendant’s motion, Plaintiff acknowledges as much, writing that she 2 “admits that [Defendant] has accurately quoted its antidiscrimination policy, but DENIES 3 that [Defendant] actually enforces the policy.” (Doc. 61 ¶ 6) (emphasis in original). In 4 evaluating Defendant’s summary judgment motion, the Court will rely on all evidence 5 submitted, including Callaway’s affidavit and her deposition. 6 B. 7 Plaintiff alleges both that she was retaliated against for complaining about Scirghio’s 8 behavior and that she was subjected to a hostile work environment. These claims will be 9 addressed in turn. 10 Summary Judgment 1. Retaliation 11 Title VII “prohibits retaliation against an employee ‘because [she] has opposed any 12 practice made an unlawful employment practice’” by Title VII. Nelson v. Pima Cmty. 13 College, 83 F.3d 1075, 1082 (9th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a) (2006)). 14 Retaliation claims are evaluated under the familiar three-part test for Title VII claims 15 established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima 16 facie case of retaliation, an employee must show that “(1) he engaged in a protected activity; 17 (2) his employer subjected him to an adverse employment action; and (3) a causal link exists 18 between the protected activity and the adverse action.” Ray v. Henderson, 217 F.3d 1234, 19 1240 (9th Cir. 2000). The Ninth Circuit “has explained that . . . ‘the requisite degree of proof 20 necessary to establish a prima facie case for Title VII on summary judgment is minimal and 21 does not even need to rise to the level of a preponderance of the evidence.’” Villiarimo v. 22 Aloha Island Air, Inc., 281 F.3d 1054, 1061–62 (9th Cir. 2002). 23 Once an employee establishes a prima facie case, the employer has the burden to put 24 forward “legitimate, non-retaliatory reasons for any adverse actions taken.” Steiner v. 25 Showboat Operating Co., 25 F.3d 1459, 1464–65 (9th Cir. 1994). If the employer meets this 26 burden, the employee then “has the ultimate burden of showing that [the employer’s] 27 proffered reasons are pretextual.” Id. The plaintiff may do so by presenting either direct 28 evidence or specific and substantial circumstantial evidence that the defendant’s reason was -6- 1 a pretext to retaliate against her. See Villiarimo, 281 F.3d at 1062; Godwin v. Hunt Wesson, 2 Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). 3 a. Prima Facie Case 4 Plaintiff claims that she reported to Callaway in late 2007 and early 2008 that Scirghio 5 had made sexually and racially offensive comments in the workplace, such as repeatedly 6 referring to her as “China Doll,” stating that “Asian women are supposed to be submissive,” 7 and suggesting that she should use her looks to advance her career. (Doc. 61 ¶ 175). 8 According to Plaintiff, she made a total of three complaints; first Callaway told her to “brush 9 off” Scirghio’s behavior, but ultimately warned her that Plaintiff could lose her job if she 10 continued to complain, and told her that others who had complained about Scirghio had 11 subsequently lost their jobs. (Doc. 61 ¶¶ 178–87). Additionally, she states that she asked 12 Scirghio to stop making such comments on multiple occasions, but that his response was to 13 grin, laugh, or joke. (Doc. 61 ¶ 183). Defendant points to evidence which it claims suggests 14 that Plaintiff did not make these early complaints, but acknowledges that for the purposes of 15 summary judgment, it “accepts as true [Plaintiff’s] allegations that she complained” prior to 16 April 2008. (Doc. 55 at 6). Moreover, Callaway denies telling Plaintiff that she could lose 17 her job over complaining, although subsequent discovery has revealed that two earlier 18 women had in fact complained about Scirghio and he had received no punishment other than 19 a written warning. (Doc. 33 at 120:4; 80:9–24). 20 Plaintiff was employed until April of 2008, at which point she was let go and offered 21 severance on the condition that she not file a Title VII complaint. (Doc. 56-3, Ex. 7(E)). 22 Defendants claim that Plaintiff’s position was eliminated and replaced with a substantively 23 different position, but the internal candidate who took that position described it as Plaintiff’s 24 previous position. (Doc. 61-3 at 69:17–20). Defendant claims that Scirghio played no role 25 in selecting another candidate over Plaintiff for the position, and that the person who did 26 select the other candidate had no way of knowing about Plaintiff’s complaint history. (Doc. 27 55 at 13–14). It is not contested that Scirghio sent out the notice for the position and asked 28 potential applicants to email him, that Scirghio interviewed candidates for the position, -7- 1 including Plaintiff, and that after another candidate was selected for the position, Scirghio 2 wrote an email about Plaintiff stating that “it is obvious to me that we made the right choice” 3 in hiring someone else. (Doc. 61-4, Ex. N). A reasonable jury could conclude that Scirghio 4 played some role in deciding whom to hire for the position. Since Scirghio was the subject 5 of the complaints and because a jury could believe Plaintiff when she stated that she 6 complained to him directly, Plaintiff has established a causal connection between her 7 complaints and the loss of her job and has therefore made out her prima facie case. 8 b. Legitimate, Non-retaliatory Reasons 9 Defendant notes that the person hired for the position, Mary Gaskin, had substantially 10 more experience managing people than Plaintiff, and that the new job would require more 11 management experience. (Doc. 56 ¶ 44). To meet its burden in the second step of the 12 McDonnell Douglas test, an employer need only “articulate some legitimate, 13 nondiscriminatory reason for the challenged action,” and Defendant here has met that burden. 14 Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1062 (9th Cir. 2002). 15 c. Pretext 16 At the third step, the Plaintiff has the burden of demonstrating that the employer’s 17 proffered reason is pretextual, “either directly by persuading the court that a discriminatory 18 reason more likely motivated the employer or indirectly by showing that the employer’s 19 proffered explanation is unworthy of credence.” Chuang v. University of California Davis, 20 225 F.3d 1115, 1124 (9th Cir. 2000). If the evidence of pretext is circumstantial, it must be 21 “specific and substantial in order to create a triable issue.” Godwin v. Hunt Wesson, Inc., 150 22 F.3d 1217, 1222 (9th Cir. 1998). The Ninth Circuit has found “substantial evidence” of 23 pretext when the evidence, viewed in a light most favorable to the Plaintiff, shows that those 24 people involved with the adverse employment decision were “the very people whose actions 25 had prompted [a plaintiff’s] complaints.” Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 26 (9th Cir. 1989). Here, Plaintiff alleges that she complained to Scirghio directly in addition 27 28 -8- 1 to complaining to Callaway about Scirghio.1 (Doc. 61 ¶¶ 177–183). Callaway acknowledged 2 in her deposition that if Scirghio knew that Plaintiff had complained about her, Scirghio 3 “might say something to her that might increase her stress,” or “[i]t might have affected her 4 employment in some way or other.” (Doc. 61-2, Ex. A at 145:23-146:21). Although 5 Defendant contests the fact that Plaintiff ever complained to Callaway prior to April of 2008 6 and asserts that Scirghio played no role in deciding whom to hire, when material issues of 7 fact are found in Plaintiff’s favor, Scirghio participated in the decision to hire or terminate 8 Plaintiff while aware that she had filed complaints against him for his inappropriate 9 comments. Such facts would constitute substantial evidence of pretext, and summary 10 judgment on the retaliation claim will be denied. 11 2. Hostile Work Environment 12 Title VII provides that an employer may not “discriminate against an individual with 13 respect to [her] compensation, terms, conditions, or privileges of employment because of 14 such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) 15 (2006). A plaintiff may establish a violation of Title VII by proving the discrimination 16 “created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 17 57, 66 (1986). 18 An employee was subject to a hostile work environment when he or she can show “(1) 19 that he or she was subjected to verbal or physical conduct of a racial or sexual nature, (2) that 20 this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive 21 to alter the conditions of the victim’s employment and create an abusive working 22 environment.” Ellison v. Brady, 924 F.2d 872, 875–76 (9th Cir. 1991). The Ninth Circuit has 23 24 25 26 27 28 1 Plaintiff claims additionally that her EEOC determination constitutes evidence of retaliation. (Doc. 64 at 26). An EEOC determination is “highly probative” of the merits of a complaint. Plummer v. Western Intern. Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981). Plaintiff’s EEOC determination, however, did not involve an allegation that she was retaliated against when Defendant did not hire her for the managerial position, but only addressed whether requiring her to waive the right to sue in exchange for severance was itself retaliatory. -9- 1 cautioned that “where two bases for discrimination exist, they cannot be neatly reduced to 2 distinct components,” so Plaintiff’s allegations regarding racial and sexual comments must 3 be considered together. Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994). If 4 an employee experiences a hostile work environment, an employer has an affirmative defense 5 to liability if the employer has “provided a proven, effective mechanism for reporting and 6 resolving complaints of sexual harassment, available to the employee without undue risk or 7 expense,” and the employee “failed to avail herself of the employer’s preventive or remedial 8 apparatus.” Faragher v. City of Boca Raton, 524 U.S. 775, 806–07 (1998). 9 Plaintiff alleges that working for Scirghio required enduring a constant barrage of 10 sexually and racially demeaning comments. She claims that the first time she met him, 11 Scirghio stated, “I didn’t think [Plaintiff’s husband] had a hot little Asian as a wife.” (Doc. 12 61 ¶ 175). He advised her to “use her body to market,” and asked “so you never flaunt your 13 goods to get in the door?” (Id.). He told her that she did not need to exercise because “you 14 look hot already,” and asked her to come into his office and fix his phone because “your 15 people are good at computers and phones and things like that.” (Id.). He referred to her as 16 “China Doll,” according to Plaintiff, too many times for her to remember, and stared at her 17 breasts so frequently that she had to tell him to look at her face instead. (Id.). He stated that 18 he could “make or break” her career and asked “what she was going to do for him” while 19 leering at her. (Id.). Defendant denies that many of these statements were made, and provides 20 evidence to impeach Plaintiff’s credibility. (Doc. 55 at 6). At summary judgment, however, 21 “[i]ssues of credibility, including questions of intent, should be left to the jury.” Harris, 183 22 F.3d at 1051. 23 Scirghio’s alleged comments were racial and sexual in nature, and Plaintiff credibly 24 claims that they were unwelcome. The alleged behavior would create “an environment that 25 a reasonable person would find hostile or abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 26 21 (1993). An objectively reasonable person would find that the comments were not merely 27 “genuine but innocuous differences in the ways men and women routinely interact with 28 members of the same sex and the opposite sex.” Oncale v. Sundowner Offshore Svcs., Inc., - 10 - 1 523 U.S. 75, 81 (1998). Resolving disputed issues in her favor, Plaintiff has shown that she 2 was subjected to a hostile work environment. 3 Nor can Defendant avail itself of the affirmative defense outlined in Faragher. 4 Plaintiff does not deny that Defendant had a sexual harassment policy in place, but a 5 reasonable jury could conclude, based on Callaway’s deposition testimony and Defendant’s 6 response to multiple complaints against Scirghio, that it did not enforce this policy, or in any 7 event did not enforce it with regard to Scirghio. The Court has not considered whether the 8 underlying allegations in the previous complaints are admissible at summary judgment in 9 support of Plaintiff’s allegations regarding Scirghio’s actions; it has considered these 10 incidents only with regards to how they bear on Defendant’s Faragher defense. Scirghio was 11 the subject of multiple complaints of sexually inappropriate behavior after Plaintiff was fired, 12 and the record contains no evidence that Defendant took any action beyond issuing warning 13 letters, only to issue further warning letters when the warnings were not heeded.2 14 A reasonable jury, moreover, could conclude, based upon Callaway’s deposition, that 15 Defendant did not enforce its written sexual harassment policy. Callaway stated that she does 16 not consult written policy but instead works by intuition. (Doc. 61-2, Ex. A at 48). She stated 17 that she believes a hostile work environment is “one in which a person is so distraught 18 that—and distracted by whatever is making the environment hostile that they can’t perform 19 their job functions.” (Id. at 151). The Supreme Court has specifically rejected this argument, 20 noting that “the test is not whether work has been impaired, but whether working conditions 21 have been discriminatorily altered.” Harris, 510 U.S. at 25 (Scalia, J., concurring). Callaway 22 also stated that she was not aware of whether Defendant had a zero-tolerance policy towards 23 24 25 26 27 28 2 The record contains an “Employee Warning Report” regarding the November 2008 incident. (Doc. 61-3, Ex. K). This “warning” does not mention the previous “warning” which promised that Scirghio would be disciplined for repeating his behavior, and does not state that Scirghio is receiving discipline. The copy is not signed by Scirghio or anyone else; and there is no evidence in the record that the “warning” was actually provided to him. - 11 - 1 sexual harassment. (Id. at 25–26).3 A reasonable jury could conclude, based on Defendant’s 2 handling of the multiple complaints against Scirghio and Callaway’s deposition, that 3 Defendant did not offer “a proven, effective mechanism for reporting and resolving 4 complaints of sexual harassment, available to the employee without undue risk or expense.” 5 Faragher, 524 U.S. at 806. Given the fact that there is a genuine issue of material fact as to 6 whether Defendant fulfilled the first prong of the Faragher defense, consideration of the 7 second prong is not necessary. Defendant is denied summary judgment with regards to the 8 hostile work environment claim. 9 CONCLUSION 10 Callaway’s declaration does not contradict her deposition. Plaintiff’s motion to strike 11 her declaration is denied and the Court considered both the declaration and the deposition in 12 ruling on Defendant’s motion. 13 Plaintiff has stated a prima facie case of retaliation, and Defendant has put forth a 14 legitimate non-discriminatory reason for the adverse employment action. Because a 15 reasonable jury could credit Plaintiff’s claims that she complained directly to Scirghio about 16 his behavior, and because a jury could believe that Scirghio was involved in the decision not 17 to hire Plaintiff, genuine issues of material fact remain as to whether the decision not to hire 18 her was pretextual. Moreover, a reasonable person crediting Plaintiff’s account of Scirghio’s 19 behavior would find that Scirghio’s comments created a hostile work environment. Based on 20 Defendant’s failure to discipline Scirghio for similar incidents, and Callaway’s statements 21 in her deposition that she does not work according to written policy, Defendant cannot avail 22 itself of the Faragher defense. 23 IT IS THEREFORE ORDERED: 24 25 26 27 28 3 Defendant argues that “zero-tolerance policy” is a “vague and undefined term.” (Doc. 67 at 3). Plaintiff’s attorney greatly reduced any confusion by asking Callaway if she understood the term to mean that “[w]e will not tolerate any sexual harassment, even a little bit is what I mean, zero tolerance, we will absolutely not tolerate discriminatory harassment at work.” (Doc. 63-1, Ex. C at 25–26). Callaway stated that she understood that definition and did not know whether Defendant had such a policy. Id. - 12 - 1 1. Defendant’s Motion for Summary Judgment (Doc. 55) is denied. 2 2. Plaintiff’s Motion to Strike the Declaration of Katherine Callaway (doc. 63) 3 4 is denied. DATED this 16th day of July, 2012. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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