Quednau v. Arizona, State of et al

Filing 40

ORDER granting the State of Arizona's 31 Motion for Summary Judgment; directing the Clerk to terminate this action and enter judgment accordingly. Signed by Judge G Murray Snow on 9/20/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dana Quednau,

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No. CV-12-571-PHX-GMS
Plaintiff,

ORDER

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v.

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State of Arizona dba Arizona Department
of Economic Security; Nina Ferrer in her
capacity
as
Professional
Standards
Management and in her personal capacity;
Sally Reyes in her capacity as Regional
Program Manager and in her personal
capacity,

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Defendants.

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Pending before the Court is Defendant State of Arizona’s Motion for Summary

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Judgment on Plaintiff Dana Quednau’s claims. (Doc. 31.) For the reasons discussed

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below, the Court grants the Motion.

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BACKGROUND

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Plaintiff Dana Quednau claims that her former employer, Defendant State of

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Arizona, retaliated against her after she filed a charge of discrimination with the EEOC.

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In November 2010, Quednau was hired by the Arizona Department of Economic Security

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(the “DES”) in the Coolidge office of the Agency’s Division of Benefit and Medical

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Eligibility (the “DBME”) as a Program Services Evaluator I. (Doc. 31, DSOF ¶ 1; Doc.

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36, PSOF ¶ 1.) As a new employee, Quednau began her tenure on probation and spent

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much of her first five months on the job in training. (Doc. 31, DSOF ¶¶ 2–3; Doc. 36,

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PSOF ¶¶ 2–3.)

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In April 2011, Quednau learned that co-worker Antoinette Mercado had made

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comments regarding Quednau’s drinking and had implied that Quednau was an alcoholic.

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(Doc. 31, DSOF ¶ 5; Doc. 36, PSOF ¶ 5.) Quednau submitted a report accusing Mercado

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of slander, hazing, harassment, and workplace bullying. (Doc. 31, DSOF ¶ 6; Doc. 36,

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PSOF ¶ 6.) Quednau’s report further alleged that Mercado drove recklessly and used

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sexual slurs in the workplace. (Doc. 37, Ex. 3.)

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On April 25, 2011, Nina Ferrer, Professional Standards Manager for the Central

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Region, went to the Coolidge office to investigate Quednau’s report. (Doc. 31, DSOF ¶ 7;

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Doc. 36, PSOF ¶ 7.) Ferrer asked Quednau to meet with Mercado to try to resolve the

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situation, but the Parties dispute whether Quednau refused to do so or stated that she did

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not want to do so. (Doc. 31, DSOF ¶ 9; Doc. 36, PSOF ¶ 9.) On April 26, 2011, Ferrer

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and Sally Reyes, Regional Program Manager, met with Quednau and Mercado. (Doc. 31,

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DSOF ¶¶ 10–12; Doc. 36, PSOF ¶¶ 10–12.)

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In response to Quednau’s alleged unprofessional behavior during the April 26

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meeting, Ferrer prepared and submitted a recommendation to DES-DBME Human

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Resources (“HR”) for Quednau’s dismissal. (Doc. 31, DSOF ¶ 13; Doc. 36, PSOF ¶ 13.)

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HR received this recommendation and supporting documents on April 27, 2011. (Doc.

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31, DSOF ¶ 14; Doc. 36, PSOF ¶ 14.) On May 11, 2011, HR forwarded Ferrer’s

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recommendation to Assistant Director Leona Hodges, the employee responsible for

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making determinations regarding the termination, promotion, and suspension of DES-

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DBME employees. (Doc. 31, DSOF ¶¶ 15-16; Doc. 36, PSOF ¶¶ 15-16.)

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Quednau contacted her EEO liaison after the April 26 meeting and contacted EEO

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Administrator Morris Greenridge on May 4. (Doc. 36, ¶¶ PSOF 23, 24, 26, 27.)

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Greenridge informed Human Resources Manager Kathy Montaño of Quednau’s

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complaints and Montaño told Greenridge that she would direct Mercado to cease using

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sexual slurs and review the DES sexual harassment policy. (Doc. 36, ¶¶ PSOF 29–30.)

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Quednau received a noticeable workload increase during the time that she was
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writing her April 2011 report and soliciting witness statements for that report. (Doc. 36,

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PSOF ¶¶ 5–6, 11, 32, 38.) In response to the increased workload, Quednau filed a charge

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with the EEOC on May 12, 2011, alleging a sexually hostile work environment and

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retaliation for reporting that conduct. (Doc. 36, PSOF ¶ 39.)

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After receiving Ferrer’s recommendation for Quednau’s termination on May 11,

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Assistant Director Hodges reviewed the documentation and discussed the matter with

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Human Resources Manager Kathy Montaño and Regional Manager Sally Reyes. (Doc.

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31, DSOF ¶¶ 15, 18, 19; Doc. 36, PSOF ¶¶ 15, 18, 19.)

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The State asserts that Hodges decided to terminate Quednau because her behavior

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was unprofessional and undermined efforts to improve relations in the Coolidge office.

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(Doc. 31, DSOF ¶ 19.) Quednau was terminated on May 25, 2011. (Doc. 31, DSOF ¶ 22;

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Doc. 36, PSOF ¶ 22.)

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Quednau filed the present suit against the State, Ferrer in her official capacity, and

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Reyes in her official capacity. (Doc. 1.) Quednau claimed that Ferrer and Reyes had

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violated 42 U.S.C. § 1983. (Doc. 1 ¶¶ 36–40.) The Parties stipulated to the dismissal of

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Quednau’s claims against Ferrer and Reyes. (Doc. 19.)

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Remaining are Quednau’s retaliation claims against the State under both Section

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704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and

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analogous provisions of the Arizona Civil Rights Act (the “ACRA”), A.R.S. § 41-

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1464(A) . (Doc. 1 ¶¶ 1, 31–35, 41–45.) Quednau alleges that the State retaliated against

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her by increasing her workload and terminating her because she filed an EEOC charge.

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(Doc 1, ¶¶ 35, 45.) The State moves for Summary Judgment on these remaining claims.

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(Doc. 31.)
DISCUSSION

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I.

LEGAL STANDARD
Summary judgment is appropriate if the evidence, viewed in the light most

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favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
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P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over

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facts that might affect the outcome of the suit under the governing law will properly

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preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

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1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving

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party must show that the genuine factual issues “‘can be resolved only by a finder of fact

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because they may reasonably be resolved in favor of either party.’” Cal. Architectural

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Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)

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(quoting Anderson, 477 U.S. at 250).

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Because “[c]redibility determinations, the weighing of the evidence, and the

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drawing of legitimate inferences from the facts are jury functions, not those of a judge, . .

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. [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be

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drawn in his favor” at the summary judgment stage. Anderson, 477 U.S. at 255 (citing

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Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)); Harris v. Itzhaki, 183 F.3d

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1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions of intent, should be

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left to the jury.”) (citations omitted).

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II.

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ANALYSIS
Quednau must prove her claim of retaliation by showing facts that demonstrate

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that: (1) she engaged in an activity protected by Title VII; (2) her employer subjected her

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to a materially adverse employment action; and (3) there was a causal link between the

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protected activity and the adverse action. Vasquez v. County of Los Angeles, 349 F.3d

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634, 646 (9th Cir. 2003).

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As to Quednau’s ACRA retaliation claim, the Act is “generally identical to Title

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VII, and therefore federal Title VII case law is persuasive in the interpretation of the

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[ACRA].” Bodett v. CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004) (citing Higdon v.

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Evergreen Int'l Airlines, Inc., 138 Ariz. 163, 165, 673 P.2d 907, 909–10 n.3 (1983))

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(internal quotations omitted); see Timmons v. City of Tucson, 171 Ariz. 350, 354, 830
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P.2d 871, 875 (Ct. App. 1991). The ACRA’s prohibition against retaliation, A.R.S. § 41–

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1464(A), is “essentially identical” to the prohibition under Title VII. Storey v. Chase

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Bankcard Services, Inc., 970 F. Supp. 722, 731 (D. Ariz. 1997). Thus, the Court will

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analyze both of Quednau's retaliation claims under federal law.

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A.

Protected Activity

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Under the first prong of Title VII’s retaliation provision, Quednau must prove that

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she was retaliated against for opposing an employment practice made unlawful by Title

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VII, or because she “has made a charge, testified, assisted, or participated in any manner

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in an investigation, proceeding, or hearing” related to Title VII enforcement. 42 U.S.C. §

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2000e-3(a); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1082 (9th Cir. 1996). The

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opposition clause protects “only those employees who oppose what they reasonably

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perceive as discrimination under the Act.” Learned v. City of Bellevue, 860 F.2d 928, 932

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(9th Cir. 1988). While an employee may fail to prove the alleged unlawful employment

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practice but still prevail on a retaliation claim, “the opposed conduct must fairly fall

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within the protection of Title VII to sustain a claim of unlawful retaliation.” Id. (citing

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Silver v. KCA, Inc., 586 F.2d 138, 132 (9th Cir. 1978)).

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Quednau alleges that she engaged in an activity protected by Title VII by filing her

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May 12, 2011, EEOC charge. The State acknowledges that filing an EEOC charge is

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generally protected conduct, but argues that Quednau’s charge does not qualify because it

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was not in opposition to any “practice made unlawful” by Title VII.

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Quednau asserts that she opposed Mercado’s comments that created a hostile work

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environment based on sex. Title VII is violated “when the workplace is permeated with

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discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to

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alter the conditions of the victim's employment and create an abusive working

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environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations

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and citations omitted). To prevail on a hostile work environment claim, Quednau would

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need to show that her work environment was both subjectively and objectively hostile;

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that is, she would need to demonstrate that she perceived her work environment to be
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hostile, and that a reasonable person in her position would perceive it to be so.

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Dominguez–Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th Cir. 2005)

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(internal citations omitted). She would also need to show evidence sufficient to establish

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that any harassment that took place was because of sex. Id. (internal citations and

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quotations omitted).

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In analyzing whether the alleged conduct that Quednau opposed created an

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objectively hostile work environment, this Court must assess all the circumstances,

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“including the frequency of the discriminatory conduct; its severity; whether it is

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physically threatening or humiliating, or a mere offensive utterance; and whether it

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unreasonably interferes with an employee's work performance.” Id. (quoting Clark Cty.

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Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)) (internal citation omitted). “Simple

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teasing, offhand comments, and isolated incidents (unless extremely serious) will not

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amount to discriminatory changes in the terms and conditions of employment.” Faragher

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v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation omitted).

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Quednau does not produce evidence that the conduct she opposed constituted

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sufficiently severe or pervasive discrimination because of sex to establish a retaliation

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claim. Much of the behavior Quednau alleged does not relate to gender in any manner.

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Quednau provides no evidence that Mercado’s comments on Quednau’s drinking or work

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were due to the fact that Quednau is a woman.

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Quednau further alleged that Mercado used sexual slurs in the workplace. In her

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April 21, 2011, complaint to her supervisors, Quednau asserted that Mercado “would

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curse to extremes (using sexual slurs) making for a very hostile work environment.”

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(Doc. 37, Ex. 4.) Quednau did not elaborate as to the contents or frequency of these

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sexual slurs. The remainder of Quednau’s report focused on Mercado’s driving and other

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behavior unrelated to gender. Id. Similarly, in her complaint sent to HR on April 26,

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2011, Quednau asserted that Mercado made “comments to [Quednau] that were

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inappropriate and unprofessional (using sexual slurs),” but otherwise focused on

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unrelated behavior. In her May 4, 2011, e-mail to EEO Administrator Morris Greenridge,
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Quednau wrote that “[w]e should have the opportunity to report misconduct and sexual

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harassment,” but did not elaborate further regarding the alleged sexual harassment. (Doc.

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37, Ex. 8.) In a May 4, 2011, e-mail from Human Resources Manager Kathy Montaño to

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Greenridge, Montaño reported that when asked on April 25 about the type of sexual slurs

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used by Mercado, Quednau responded that “‘she used the ‘f-word’ or ‘f-off.’” (Doc. 37,

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Ex. 10.) Quednau subsequently testified that Mercado told her to “get f—ed” and that

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Mercado used the F word on a “continuous basis every day…[i]t was raunchy F words. It

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always came with a joke of some sort.” (Doc. 3, Ex. 1 at 74, 84.)

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Quednau largely provides only conclusory statements in asserting that she was

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sexually harassed. She provides no facts by which a reasonable jury could conclude that

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she was subjected to harassment because of her sex, or that Mercado’s use of the term

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constituted an objectively hostile work environment.

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As previously noted, to state a claim for sexual harassment, the Plaintiff must

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prove that “any harassment took place ‘because of sex.’” Dominguez-Curry, 424 F.3d

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1027 at 1034 (quoting Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871-72 (9th

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Cir. 2001) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, (1998))).

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Among other complaints that have no apparent reference to gender or sex, Quednau

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complained that Mercado, a fellow female employee, used the “F” word every day and

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that “[i]t always came with a joke of some sort.”

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additional detail that Mercado “‘used the ‘f-word’ or ‘f-off.’” (Doc. 37, Ex. 10) or told

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her to “get f—ed.” It is certain that the use of this vulgar term can be and most likely was

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offensive to Quednau. It is also true that a primary definition of the general term is a

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crude reference to the act of sexual intercourse and thus could plausibly have some

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connection to gender.

Quednau further states without

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But, the term has also acquired a connotation of being a vacuous vulgarity used

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only for emphasis by those who wish to express crude or harsh emotions. Although the

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term generally refers to a sex act, Quednau has put forth no facts from which a reasonable

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jury could conclude that Mercado used that term in her relations with Quednau precisely
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because of Quednau’s sex. In the absence of such a showing, no reasonable jury could

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conclude that the use of the “F” term, in this case, was sexually discriminatory.

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Further, Quednau has not set forth facts from which a reasonable jury could

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determine that Mercado’s use of the F-word subjected Quednau to an objectively hostile

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work environment. In determining whether the alleged conduct created an objectively

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hostile work environment, a court “must assess all the circumstances, ‘including the

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frequency of the discriminatory conduct; its severity; whether it is physically threatening

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or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with

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an employee’s work performance.’” Dominguez-Curry, 424 F.3d at 1034 (quoting

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Breeden, 532 U.S. at 270-71).

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Quednau did testify at her deposition that Mercado used the F-word on a daily

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basis, but she raises no facts which suggest that the use of the term was physically

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threatening or humiliating to her as opposed to being merely an offensive utterance.

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Dominguez–Curry, 424 F.3d at 1034. Further, she sets forth no facts from which a

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reasonable jury could conclude that Mercado’s use of the term interfered with Quednau’s

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work performance. Mercado was a co-worker; she was not Quednau’s supervisor.

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Quednau offers no explanation as to how her work environment was so substantially

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impacted by Mercado’s daily use of the vulgarity. Finally, for the reasons set forth

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above, Quednau does not set forth facts from which a jury could conclude that Mercado

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used the F-word because of Quednau’s sex.

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“Not every insult or harassing comment” constitutes sexual harassment. Rather, to

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constitute a hostile work environment such comments must be “[r]epeated derogatory or

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humiliating statements.” See Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000); see

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also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989), overruled on other

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grounds, Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) (finding “severe or

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pervasive” harassment when one supervisor “repeatedly engaged in vulgarities, made

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sexual remarks, and requested sexual favors” while another supervisor “frequently

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witnessed, laughed at, or herself made these types of comments.”).
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At most, the alleged sexual slurs as alleged by Quednau amount to offensive

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comments insufficient to give rise to a claim of sexually-based harassment. Although

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Quednau may have subjectively felt that Mercado’s language created a hostile work

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environment, she offers insufficient facts to conclude that a reasonable person would

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have perceived it to be so. See Dominguez–Curry, 424 F.3d at 1034. Quednau’s

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allegations do not reasonably fall under Title VII and thus fail to establish that she

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engaged in protected activity under the Act when she filed her EEOC charge.
CONCLUSION

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Quednau fails to establish a prima facie case of Title VII retaliation because she

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fails to raise issues of fact on which a reasonable jury could conclude that she engaged in

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protected activity under the Act.

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IT IS THEREFORE ORDERED that the State of Arizona’s Motion for

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Summary Judgment (Doc. 31) is GRANTED. The Clerk of Court is directed to terminate

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this action and enter judgment accordingly.

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Dated this 20th day of September, 2013.

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