Frotten v. INT Technologies LLC et al

Filing 81

ORDER denying 67 Motion for Summary Judgment; denying 69 Motion for Partial Summary Judgment. The Court will hold a conference call on 5/30/2018 at 4:30 PM to set a final pretrial conference and trial date. Counsel for Plaintiff shall initiat e a conference call to include all counsel and the Court. If a dial-in number is to be used, the dial-in information shall be provided to all counsel and the Court no later than 5/29/2018 at 12:00 noon. Signed by Judge David G Campbell on 5/21/2018.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert M Frotten,
Plaintiff,

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ORDER

v.

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No. CV-16-03289-PHX-DGC

INT Technologies LLC,

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Defendant.

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Plaintiff Robert Frotten filed a complaint against Defendant INT Technologies,

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LLC (“INT”) for discrimination and retaliation in violation of Title VII of the Civil

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Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”). Doc. 18. INT moves for

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summary judgment on all claims (Doc. 67), and Plaintiff moves for partial summary

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judgment on INT’s Faragher/Ellerth affirmative defense (Doc. 69). The motions are

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fully briefed, and no party requests oral argument. For the reasons that follow, the Court

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will deny both motions.

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I.

Background.

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The Court will begin by providing a fairly detailed description of the factual

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matters at issue in this case. Because the case includes allegations of a sexually hostile

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work environment, the description includes some unsavory information.

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Plaintiff worked as a technical recruiter at INT from July 2015 to April 2016.

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Doc. 68 at 2 ¶ 3, 4 ¶ 18; Doc. 71 at 3 ¶¶ 3, 18. INT is a staffing firm, and Plaintiff’s

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position required him to recruit and place qualified candidates with INT’s clients for their

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information technology needs. Doc. 68-1 at 5 ¶¶ 4, 6. In addition to an annual salary of

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$50,000, Plaintiff earned commissions for placing professionals. Id. at 17. His “offer of

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employment” letter also entitled Plaintiff to “a non-recoverable draw against

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commissions . . . of $692.31 paid biweekly for a period of 4 months from start date with a

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possibility of a 2 month extension for good performance.” Id.

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INT is owned by Chris Knott (id. at 170), and a six-person leadership team advises

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Mr. Knott on many business matters, including whether to continue a recruiter’s draw

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(Doc. 73-3 at 10, 17-18). The leadership team includes Rhonda Rutledge, Vice President

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and Director of Technical Recruiting; James Moloney, Vice President of Sales; Tamara

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Ellestad, Vice President of Recruiting; Richard Krause, Vice President of Operations; and

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Chris Moulton, Human Resource Manager. Doc. 73-4 at 4; Doc. 78-7 at 2. During

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Plaintiff’s employment with INT, Mr. Moloney and Ms. Ellestad were married.1 Doc. 68

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at 2 ¶ 4; Doc. 71 at ¶ 4; Doc. 73 at 2 ¶ 5; Doc 73-3 at 5.

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In July 2015, Plaintiff attended a training session in Arizona at which employees

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were required to participate in an icebreaker game prepared and organized by Ms.

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Moulton and Mr. Krause. Doc. 73-1 at 42-43; Doc. 73-4 at 7-8; Doc. 73-6 at 15-20. As

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part of the game, each employee had to email a “secret” about themselves, and Mr.

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Krause distributed the list of secrets during the icebreaker.

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Employees then had to guess which employee submitted which secret.

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employee submitted a secret stating “I had sex in a convent,” and the other employees,

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including Plaintiff, had to ask each other at the meeting if they had sex in the convent.

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Doc. 73-1 at 42-43; Doc. 73-6 at 15-17. Mr. Knott, Mr. Moloney, and Ms. Ellestad were

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present at the ice-breaker game, and one witness testified that they laughed at this “sex in

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a convent” entry. Doc. 73-6 at 19. Plaintiff and other employees found the entry

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inappropriate. Doc. 73-4 at 8; Doc. 73-6 at 18.

Doc. 73-6 at 15-17.
Id.

One

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Mr. Moloney and Ms. Ellestad have since divorced, but prior to the divorce, Ms.
Ellestad was known as Tamara Moloney. Doc. 68 at 2 ¶ 4; Doc. 71 at ¶ 4; Doc. 73
at 2 ¶ 5; Doc 73-3 at 5.
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At the mandatory dinner following the training session, Plaintiff joined a

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conversation with Mr. Moloney, Ms. Ellestad, and other INT employees. Doc. 71-1

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at 26-27. During the conversation, Mr. Moloney told the group that he wanted to get “a

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hand job from a midget” because “his dick [would] look huge” in the midget’s “little

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hands.” Doc. 68-1 at 236; Doc. 71-1 at 26-27. Ms. Ellestad stated that she “was okay

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with him sleeping with a midget because it was only half a person.” Doc. 68-1 at 236;

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Doc. 71-1 at 26-27. Plaintiff stated that Ms. Ellestad and Mr. Moloney then proceeded to

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banter back and forth about midget sex. Doc. 71-1 at 26-27. After these remarks,

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Plaintiff recounted how he once placed an advertisement on Craigslist seeking to hire a

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midget dressed as a leprechaun to accompany him to a Saint Patrick’s Day parade. Id.

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at 28. Plaintiff testified that he did not find Mr. Moloney’s comments offensive or

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sexually harassing, just “inappropriate” and “weird.” Doc. 71-1 at 30. Ms. Ellestad,

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however, testified that Plaintiff made the remarks about having sex with a midget.

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Doc. 73-4 at 16-18.

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testified that Mr. Moloney and Ms. Ellestad made the remarks. Doc. 73-5 at 8-11. Mr.

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Baker also testified that Mr. Moloney, Ms. Ellestad, and Plaintiff laughed during this

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conversation. Id. at 11.

Another employee present for this conversation, Chris Baker,

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Following the July 2015 training, Plaintiff – like most of INT’s recruiters –

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worked virtually from his home in South Carolina, and reported to Ms. Ellestad, who

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resided in Colorado.

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participated in weekly conference calls with INT management, sales managers, and

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recruiters. Doc. 68-1 at 89; Doc. 71-6 at 10, 12. Plaintiff testified that these conference

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calls were replete with “sexually driven” and “offensive” comments, often made by

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INT’s leadership team and in the presence of Mr. Knott. Doc. 71-1 at 25. For instance,

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during one of these conference calls, Plaintiff testified that a male employee, Caesar

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Pena, stated “I’m the third going down,” implying that he was the third to present during

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the conference call. Doc. 68-1 at 89-90. In response, Mr. Moloney stated, “that’s not

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what Rene said.” Id. at 90. Mr. Knott then commented, “I told James [Moloney] not to

Doc. 68-1 at 5 ¶ 6.

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Although he worked remotely, Plaintiff

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start drinking this early in the day.” Id. Rene was a male employee at INT, and Plaintiff

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interpreted Mr. Moloney’s response as implying oral sex between two male employees.

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Id. at 90, 237; Doc. 73-6 at 31-32. He testified that he was not offended by the comment,

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but “more in shock” that a senior leader would say that. Doc. 68-1 at 91.

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Other employees aver that inappropriate sexual banter by INT’s leadership team

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was commonplace on company conference calls and occurred often in the presence of

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Mr. Knott. Doc. 73-2 at 2-3 ¶¶ 2-3; Doc. 71-6 at 7-12. For instance, one recruiter,

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Katherine Noto, testified that before Mr. Moloney would make a “crass” comment –

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whether “sexual or about drugs” – he would ask if Ms. Moulton, INT’s Human Resource

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Manager, was on the call. Doc. 71-6 at 9-11. Because employees had to say their names

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when they dialed into the conference call, Ms. Noto testified that Mr. Moloney knew Ms.

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Moulton was not on the call and thus was joking before he knowingly made an

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inappropriate remark. Id. at 10. She said that crass remarks occurred on “most of the

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calls.” Id. at 13.

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In early October 2015, after four months with INT, Ms. Ellestad evaluated

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Plaintiff’s work performance. Doc. 73-4 at 9. She gave him a positive review, writing

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that “[i]f [Plaintiff] continues to produce on the front end like he is, I have no doubt that

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he will meet or exceed goals set out for him. Keep up the great work[.]” Id. at 10. Ms.

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Ellestad identified nothing negative about Plaintiff’s performance and attitude. Id.

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On October 26, 2015, Plaintiff emailed Mr. Knott, Ms. Ellestad, and Mr. Moloney

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about a meeting he attended at the Veteran Employment Summit on behalf of INT.

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Doc. 68-1 at 239. In his email, Plaintiff stated that one of the attendees was married to a

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military veteran. Id. Mr. Knott just replied: “So this guy wants to get credit for f--king a

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veteran? Veteran f--ker!.” Id. Plaintiff – a veteran himself – testified he was offended

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and “blown away” by these remarks.2 Id.

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Plaintiff also testified that Ms. Ellestad responding “Ha” to Mr. Knott’s
comments. Doc. 68-1 at 37. Although the record includes Mr. Knott’s reply to
Plaintiff’s email (Doc. 68-1 at 239), Ms. Ellestad’s alleged email response is not in the
record.
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On December 16, 2015, Plaintiff spoke on the phone for twenty-five minutes with

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Courtney Knott, who is an INT manager and the daughter of Mr. Knott. Doc. 68-1

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at 94-97; Doc. 73-3 at 19-20.

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discussion of how to raise his and other recruiters’ concerns with her father. Doc. 68-1

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at 94-96. He testified that he said his problems “were with the Moloneys” and that he

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was “going to call her father’s baby ugly.” Id. at 96. By “baby,” he meant INT, which

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Mr. Knott founded. Id. Plaintiff admitted, however, that he provided Courtney with only

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“very generic examples” of the problems he had with Mr. Moloney and Ms. Ellestad. Id.

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He did not mention they were related to “sexual . . . discrimination and the hostile work

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environment [at INT].” Id. at 97. He testified that that Courtney had “heard a lot of this”

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because her boyfriend was also a recruiter at INT. Id. He mentioned that he wanted

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these problems corrected because he and a lot of the other recruiters “were really feeling

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the burden.” Id. at 96. Courtney recommended that Plaintiff call Mr. Knott directly and

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express his concerns, even offering to be on the call with him. Id. Plaintiff told her he

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would contact Mr. Knott by himself because he was “a big guy.” Id. He testified that he

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called Mr. Knott later that afternoon. Id.

Plaintiff contacted Courtney for an “off the record”

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The next day, Mr. Knott called and spoke with Plaintiff for eleven minutes.

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Doc. 68-1 at 96; Doc. 73-3 at 20. Plaintiff testified that he specifically told Mr. Knott

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that he and other recruiters were having problems with Ms. Ellestad and Mr. Moloney.

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Doc. 68-1 at 97-98, 105. He also stated that “there’s some sexual content on some of

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your calls that some people have complained about.” Id. at 106. Before he finished

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saying “complained,” Plaintiff asserts that Mr. Knott “took over the call” and “didn’t

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allow [him] to speak.” Id. Plaintiff testified that Mr. Knott said he didn’t remember any

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conference calls involving the alleged sexual context (id. at 105) and deflected discussing

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Ms. Ellestad and Mr. Moloney by talking about how Plaintiff could do a “better job

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instead of worrying about the members of the organization that [he is] having problems

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with” (id. at 98).

Plaintiff stated he “wasn’t allowed to” raise specific examples

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regarding Ms. Ellestad and Mr. Moloney because Mr. Knott would redirect the

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conversation when he attempted to raise a specific example. Id. at 98-99.

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Mr. Knott denies this version of the phone conversation. Id. at 172. He testified

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that Plaintiff called him because he was financially stressed. Id. at 171, 173-175. In July

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and October 2015, Plaintiff took two salary advances totaling $3,500, and as of

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December 11, 2015, he had repaid $2,500 of the salary advances through $250 wage

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deductions per pay period. Id. at 150-151 ¶¶ 5-7. Mr. Knott averred that, on the call, he

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“sensed stress in [Plaintiff’s] voice” and that he offered, in the Christmas spirit, to forgive

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the remaining $1,000 Plaintiff owed INT. Id. at 171, 173-175; Doc. 71-3 at 3. Mr. Knott

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also testified that Plaintiff “didn’t seek forgiveness of the loan,” but rather that he

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“offered [it] to him without him asking because he was so obviously stressed.” Doc. 71-3

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at 3. INT’s Comptroller averred in a declaration that the remaining $1,000 was forgiven

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and not repaid by Plaintiff. Doc. 68-1 at 151 ¶ 8.

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Plaintiff testified that in January 2016, during a work phone call with Ms. Ellestad,

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she described having sex with her husband on their honeymoon. Id. at 237; Doc. 71-1

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at 19-21. Ms. Ellestad testified that she only discussed how her husband’s legs got

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sunburned while fishing on their honeymoon. Doc. 73-4 at 13-14, 21-22.

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Sometime in February 2016, Mr. Knott decided not to extend Plaintiff a draw,

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effective March 2016. Doc. 73-3 at 14-18. Under the terms of his offer of employment,

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Plaintiff received four draws in August, September, October, and November 2015, and

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INT decided to provide him a draw in December 2015, January 2016, and February 2016.

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Id. at 14-15. Based on both objective and subjective factors, however, Mr. Knott decided

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to discontinue Plaintiff’s draw starting in March 2016. Id. at 17-18. Mr. Knott made this

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decision after consulting with his leadership team, including Ms. Ellestad. Id. at 18;

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Doc. 78-1 at 8-10. Ms. Ellestad testified that they decided to not to extend Plaintiff a

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draw based on his low productivity (Doc. 78-1 at 12) whereas Mr. Knott stated that

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Plaintiff’s productivity was not “the sole reason” (Doc. 73-3 at 17).

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informed Plaintiff about the discontinuation of his draw. Doc. 78-1 at 10, 12. Without a

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Ms. Ellestad

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draw, Plaintiff asserts he received $1,200 less a month. Doc. 68-1 at 17; Doc. 73 at 6

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¶ 23; Doc. 78-1 at 11.3

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In March 2016, Plaintiff attended a training session conducted by Ms. Ellestad in

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Charlotte, North Carolina. Doc. 68-1 at 61, 237. On the first day of the session, Ms.

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Ellestad came over to Plaintiff’s table to show him how to perform some work-related

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function on his laptop. Id. at 62, 65. While doing so, Plaintiff testified that Ms. Ellestad

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leaned over and pressed her breast against his left arm. Id. at 62-63. He alleges that he

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then moved his left arm closer to his right arm to avoid having her touch him further. Id.

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at 64, 237. Plaintiff testified he moved his left arm away so that she would get “the point

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that she was violating [his] personal space.” Id. at 64. Ms. Ellestad then allegedly

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proceeded to lean in closer as he pulled away so that her breast continued to touch his

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arm. Id. Plaintiff testified that incident was not “a quick brush,” but lasted “long enough

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to make [him] very comfortable.” Id. One employee, Ms. Noto, witnessed Ms. Ellestad

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leaning over and “rubbing up against [Plaintiff],” and Plaintiff moving his chair away at

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least twice in response. Doc. 73-6 at 33-34. The following day, Plaintiff told a fellow

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recruiter, Mr. Baker, about the incident. Doc. 73-5 at 14. Ms. Ellestad denies rubbing

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her breast on Plaintiff, testifying that it was physically impossible since she knelt down

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next to him. Doc. 71-5 at 5-6.

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Later, as Plaintiff prepared to leave that training session, Ms. Ellestad instructed

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him in a sexual tone to meet her in her hotel room the following day. Doc. 71-1 at 38.

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Plaintiff alleges she didn’t make that statement to anyone else (id. at 39) and that other

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employees laughed when they heard the comment, understanding it to be sexually

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charged (id. at 38; Doc. 71-6 at 19; Doc. 73-2 at 4 ¶ 9). He testified that other recruiters

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made “woo” and “ooh” grade schools sounds following Ms. Ellestad’s remark.

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Doc. 71-1 at 41. Although Plaintiff and other recruiters attended a training session in Ms.

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Ellestad’s hotel suite the following day (id. at 40; Doc. 78-1 at 18), he interpreted that

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There appears to be some discrepancy between this amount and the amount
reflected in Plaintiff’s offer letter, but the parties do not identify this as a significant
factual issue.
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statement as sexual in nature because of the earlier breast-rubbing incident (Doc. 71-1

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at 38, 40-41). Ms. Ellestad, however, testified that she told all recruiters which hotel

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room to report to the following day and that no one laughed when she told Plaintiff to

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report to her hotel room. Doc. 78-1 at 18.

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On March 10, 2016, Ms. Noto emailed Plaintiff about an incident at an INT work

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dinner on March 3 in Charlotte, North Carolina. Doc. 68-1 at 240. In her email, Ms.

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Noto stated that Mr. Moloney “pretended to undue [sic] his belt” in front of her and

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another co-worker while remarking, “I am going to show Katherine [Noto] how to keep

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her job.” Id. She concluded by stating that she was “[i]ncredibly offended” and “upset”

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by Mr. Moloney’s conduct. Id.

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On March 14, 2016, Plaintiff alleges that Mr. Knott called him after work to

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discuss his performance. Doc. 68-1 at 238; Doc. 73-1 at 73-74. According to Plaintiff,

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Mr. Knott proceeded to tell him that he “had grown a reputation as being hard to work

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with among senior leadership” and that he was being placed on a performance plan

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despite having met his quarterly goals. Doc. 68-1 at 238; Doc. 73-1 at 73-74. When

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Plaintiff asked why he developed this reputation, Mr. Knott did not answer. Doc. 73-1

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at 73-74. Plaintiff believes Mr. Knott took this course of action because he complained

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about INT’s work environment. Doc. 68-1 at 238; Doc. 73-1 at 76.

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On Mach 22, 2016, Plaintiff received an email from Ms. Ellestad stating, “Will

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you f’ing place this guy already.”

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understood this to mean that he needed to place the job candidate, Dennis Chisholm, with

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a client. Doc. 73-1 at 49. He found the email “inappropriate and unprofessional,”

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especially because it “was more of a compound” on prior incidents with Ms. Ellestad. Id.

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Two days later, on March 24, 2016, the U.S. Equal Employment Opportunity

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Commission (“EEOC”) received an intake questionnaire from Plaintiff alleging sex

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discrimination and retaliation by INT. Doc. 68-1 at 232-42. On April 4, 2016, Plaintiff

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filed a charge with the EEOC raising the same allegations. Doc. 18 at 2 ¶ 17. The next

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day, on April 5, 2016, Plaintiff completed an employee self-evaluation form for INT, in

Doc. 68-1 at 241; Doc. 73-1 at 48.

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Plaintiff

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which he stated that he was “discourage[d]” because he has been told that he has “gained

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a reputation of being hard to work with.” Doc. 68-1 at 204. He also noted that there

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“needs to be better avenues” to raise issues about the company and that he felt

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“retaliate[ed]” against when his “draw was cut . . . after [he] tried to speak up about [his]

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concerns within the company.” Id. After submitting this evaluation, Plaintiff testified

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that Ms. Ellestad negatively reviewed his work performance, stating that he had become

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hard to work with. Doc. 73-1 at 11, 79. Plaintiff complained to Ms. Rutledge about this

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comment, who deemed the comment “hearsay” and removed it from Plaintiff’s review.

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Id. at 79-81.

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On the evening of April 18, 2016, Ms. Moulton emailed Plaintiff, notifying him

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that she was “investigating the comments [he] made in [his] self-evaluation about

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retaliation” and requested to obtain his statement. Doc. 68-1 at 207. Ms. Moulton did

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not mention in her email that she was investigating Plaintiff’s EEOC charge. Id. The

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following morning, on April 19, Plaintiff resigned via email from INT, stating that he has

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“been left no choice” due to “the continue[d] retaliation” and “sexual harassment” he

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experienced at INT. Id. at 209. He then replied to Ms. Moulton’s earlier email, stating

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that he would speak with her about the internal investigation with his attorney present.

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Id. at 206. That same day he accepted a sales manager position at Group Management

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Services, another staffing firm, with an annual salary of $75,000 in addition to

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commissions. Id. at 213.

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II.

Plaintiff’s Failure to Comply with Local Rule 56.1.

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INT’s motion for summary judgment includes a separate statement of facts as

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required by Local Rule of Civil Procedure 56.1(a). Doc. 68. Plaintiff’s response includes

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two corresponding statement of facts – a controverting statement of facts and a separate

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statement of additional facts in support of his response. Docs. 71, 73. By setting forth

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the disputed facts and additional facts in two statements of facts instead of one, Plaintiff

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violated Local Rule 56.1(b). Because his two separate statements totaled nineteen pages,

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Plaintiff also failed to comply with the Court’s February 9, 2017 order, which requires

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that Plaintiff’s statement of fact “shall not exceed ten pages in length, exclusive of

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exhibits.” Doc. 23.

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INT moved to strike Plaintiff’s additional statement of facts or alternatively to

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submit five more pages to address the additional facts asserted by Plaintiff. Doc. 74. On

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January 24, 2018, the Court decided not to strike Plaintiff’s additional statement “[a]t this

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time,” but granted INT’s request to submit five more pages. Doc. 75. Local Rule of

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Civil Procedure 7.2(e)(2) sets an eleven-page limit for a reply, and so, the additional five

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pages gave INT sixteen pages for its reply. INT’s filed a fourteen-page reply in support

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of its motion for summary judgment and addressed some of the additional facts. Doc. 76.

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The extra pages appear to have afforded INT an adequate opportunity to address

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Plaintiff’s additional facts. The Court will deny INT’s motion to strike.

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III.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrates the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment, and the disputed evidence must

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be “such that a reasonable jury could return a verdict for the nonmoving party.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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IV.

Discussion.

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Plaintiff alleges two Title VII claims: hostile work environment and retaliation.

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Doc. 18 at 9-10 ¶¶ 72-83. INT moves for summary judgment on both, and on Plaintiff’s

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claim for compensatory damages.

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judgment on INT’s Faragher/Ellerth affirmative defense. Doc. 69.

Doc. 67.

Plaintiff moves for partial summary

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A.

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To prevail on his hostile work environment claim, Plaintiff must show that (1) he

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was subjected to sexual advances, requests for sexual favors, or other verbal or physical

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conduct of a sexual nature; (2) the conduct was unwelcome; and (3) “the conduct was

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sufficiently severe or pervasive to alter the conditions of the victim’s employment and

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create an abusive working environment.”

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F.3d 1061, 1065 (9th Cir. 2002) (en banc) (quoting Ellison v. Brady, 924

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F.2d 872, 875-76 (9th Cir. 1991)). The work environment “must be both objectively and

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subjectively offensive, one that a reasonable person would find hostile or abusive, and

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one that the [plaintiff] in fact did perceive to be so.” Faragher v. City of Boca Raton, 524

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U.S. 775, 787 (1998).

Hostile Work Environment.

Rene v. MGM Grand Hotel, Inc., 305

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INT argues that Plaintiff’s hostile work environment claim fails because the

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alleged conduct was neither unwelcome nor sufficiently severe and pervasive to be

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actionable under Title VII.4 Doc. 67 at 7-11; Doc. 76 at 3-9. The Court finds that

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disputes of material fact prevent the entry of summary judgment on this claim.

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1.

Unwelcome Conduct.

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INT contends that it “is simply not credible” that Plaintiff was the victim of

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unwelcome sexual conduct because he “actively engaged in sexual comments and jokes

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himself.” Doc. 67 at 9, 11 (emphasis in original). INT relies on a Seventh Circuit case,

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Reed v. Shepard, 939 F.2d 484, 491-92 (7th Cir. 1991), for the proposition that a

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INT also states that Plaintiff’s sexual harassment claim fails because “some of
the alleged offensive conduct does not involve verbal or physical conduct of a sexual
nature.” Doc. 67 at 6. Other than this one cursory sentence, INT does not further
develop this argument or identify which alleged conduct was not sexual in nature. INT
has not shown that the alleged conduct is not of a sexual nature. Celotex Corp., 477 U.S.
at 323. The alleged conduct of which Plaintiff complains – the breast rubbing incident,
the hotel comment, the icebreaker game, the midget sex comment, and the gay oral sex
comment – are clearly of a sexual nature.
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plaintiff’s “enthusiastic receptiveness to sexually suggestive jokes and activities”

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indicates that the conduct was not unwelcome. Id.

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INT cites no Ninth Circuit opinion adopting Reed’s “enthusiastic receptiveness”

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standard. See Doc. 67 at 9-11; Doc. 76 at 8-9. The relevant Ninth Circuit standard is

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whether Plaintiff, by his conduct, indicated that the alleged harassment was unwelcome.

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Nichols v. Azteca Rest. Enters., 256 F.3d 864, 873 (9th Cir. 2001). The Ninth Circuit has

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found conduct to be unwelcome if the plaintiff complained about it. Id. Moreover, the

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Supreme Court has noted that “the question whether particular conduct was indeed

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unwelcome presents difficult problems of proof and turns largely on credibility

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determinations committed to the trier of fact.” Meritor Sav. Bank, FSB v. Vinson, 477

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U.S. 57, 68 (1986).

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The Court finds disputes of material fact as to whether the alleged conduct was

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unwelcome. First, the parties dispute whether Plaintiff welcomed the conduct through his

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participation. INT presents evidence that Plaintiff participated in some inappropriate

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sexual communications. Although most of the inappropriate sexual communication is

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between Plaintiff and his fellow coworkers (Doc. 68-1 at 246, 257, 259, 261, 272, 279),

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Plaintiff also engaged in such banter with his alleged harassers, Ms. Ellestad and Mr. Mr.

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Moloney (id. at 267, 269, 283, 286-87). But Plaintiff testified that he engaged in this

19

inappropriate sexual banter with INT’s leadership team – most of which occurred during

20

the first few months after he started working at INT – in order to “fit in” and be part of

21

the “good ol’ boys club.” Doc. 71-1 at 51. Cf. Sarantis v. ADP, Inc., No. CV-06-2153-

22

DGC, 2008 WL 1776508, *13 (D. Ariz. Apr. 18, 2008) (denying summary judgment on

23

whether plaintiff welcomed alleged conduct where plaintiff “played along with . . . a

24

powerful and influential” supervisor’s advances).

25

The parties also dispute whether Plaintiff welcomed Ms. Ellestad rubbing her

26

breast on his arm during a computer training session. Plaintiff testified that he moved his

27

arm away so that Ms. Ellestad would get “the point that she was violating [his] personal

28

space.” Doc. 68-1 at 64. Another employee testified she witnessed Ms. Ellestad rubbing

- 12 -

1

up against Plaintiff and that he moved his chair away at least twice in response.

2

Doc. 73-6 at 33-34. Plaintiff’s alleged physical reactions reflect that Ms. Ellestad’s

3

physical contact was unwelcome. Ms. Ellestad, on the other hand, contends it was

4

physically impossible for her to press her breast against Plaintiff’s arm because she knelt

5

down next to him, as opposed to leaning over him.5 Doc. 71-5 at 5.

6

Lastly, there is a dispute of material fact as to whether Plaintiff complained to INT

7

about the discriminatory conduct. Plaintiff presents evidence that he complained in

8

December 2015 to Mr. Knott.

9

problems with Ms. Ellestad, Mr. Moloney, and the “sexual content” on the INT

He testified that he specifically mentioned he had

10

conference calls.

11

December 2015. Mr. Knott testified he only spoke about Plaintiff’s financial problems.

12
13

INT counters with evidence that Plaintiff did not complain in

These disputes of material fact prevent the entry of summary judgment on whether
the alleged conduct was unwelcome.

14

2.

Severe or Pervasive.

15

When assessing severity and pervasiveness, courts look at all the circumstances,

16

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

17

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

18

unreasonably interferes with an employee’s work performance.” Faragher, 524 U.S.

19

at 787-88 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “The required

20

level of severity or seriousness varies inversely with the pervasiveness or frequency of

21

the conduct.” Nichols, 256 F.3d at 872 (internal quotation marks omitted). “Simple

22

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

23

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

24

(internal quotation marks omitted).

25
5

26
27
28

INT argues that it is “especially perplexing” that Plaintiff was offended by this
alleged breast rubbing incident because he had “visited strip clubs on numerous occasions
and received lap dances that involved women rubbing their nude breasts against him.”
Doc. 67 at 8 n.2. But “[a] person’s private and consensual sexual activities do not
constitute a waiver of his or her legal protections against unwelcome and unsolicited
sexual harassment at work.” Ammons-Lewis v. Metro. Water Reclamation Dist. of
Greater Chi., 488 F.3d 739, 746 (7th Cir. 2007) (citation and quotation marks omitted).
- 13 -

1

INT argues that Plaintiff was not subjected to severe or pervasive conduct because

2

his “primary allegation involves a one-time incident” in which his supervisor, Ms.

3

Ellestad, allegedly rubbed her breast against Plaintiff during a training session. Doc. 67

4

at 7 (emphasis in original). The Ninth Circuit has held that a single incident of sexual

5

harassment “may well be sufficiently severe so as to alter the conditions of employment

6

and give rise to a hostile work environment claim.” Brooks v. City of San Mateo, 229

7

F.3d 917, 927 n.9 (9th Cir. 2000); see also Little v. Windermere Relocation, Inc., 301

8

F.3d 958, 967-68 (9th Cir. 2002). For a single incident to ever suffice, it must be

9

“extremely severe.” Brooks, 229 F.3d at 926. The Court need not decide whether the

10

alleged incident alone is extremely severe because it is not “an entirely isolated incident.”

11

Id. at 927.

12

Plaintiff alleges sexual harassment by members of INT’s leadership team, which

13

includes Mr. Moloney, Mr. Knott, and Plaintiff’s immediate supervisor, Ms. Ellestad.

14

The Court must consider the alleged actions of all of these individuals. See Westendorf v.

15

W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir. 2013) (considering the

16

conduct of both the harassing coworker and immediate supervisor when assessing

17

whether plaintiff was subjected to severe or pervasive harassment).

18

Plaintiff’s immediate supervisor and other INT officials engaged in the alleged conduct

19

can render the actions more “emotionally and psychologically threatening” than had they

20

been committed by his coworkers. Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1056

21

(9th Cir. 2007). And how INT’s leadership team reacted to the harassing behavior they

22

allegedly witnessed Plaintiff suffer informs this analysis. See Ray v. Henderson, 217

23

F.3d 1234, 1245 (9th Cir. 2000) (discussing E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504,

24

1515 (9th Cir. 1989), where the Ninth Circuit affirmed the district court’s finding that

25

sexual harassment was sufficiently “severe or pervasive” because plaintiff’s direct

26

supervisor “frequently witnessed, laughed at, and herself made these types of

27

comments”).

28

- 14 -

The fact that

1

Plaintiff’s evidence, if accepted as true by the jury, shows the following: At

2

Plaintiff’s first training session, Mr. Moloney, Ms. Ellestad, and Mr. Knott laughed at the

3

“sex in a convent” comment. At dinner that night, Mr. Moloney and Ms. Ellestad

4

engaged in offensive and sexually explicit banter.

5

sexually explicit jokes and comments by INT supervisors were commonplace. Plaintiff

6

provides specific examples and notes that Mr. Knott was present on the calls and

7

participated in the banter. On a separate call, Ms. Ellestad described having sex with her

8

husband, Mr. Moloney. In an email exchange, Mr. Knott, Ms. Ellestad, and Mr. Moloney

9

made sexual jokes involving a veteran. At a second training session, Ms. Ellestad rubbed

10

her breast on Plaintiff and later made a sexual innuendo about Plaintiff reporting to her

11

hotel room. Around the same time, Plaintiff received an email from a fellow employee in

12

which she described how Mr. Moloney pretended to unzip his pants while saying he was

13

going to teach her how to keep her job.

On weekly phone conferences,

14

This series of incidents could readily be found by a jury to constitute severe or

15

pervasive harassment. Plaintiff admitted that some of the early communications were not

16

necessarily offensive (Doc. 71-1 at 30), but that the “compounding effect” of all this

17

behavior made it offensive (id. at 20, 50). He stated that the breast rubbing incident,

18

followed by the hotel room comment, was “the straw that broke the camel’s back.” Id.

19

at 10. The fact that INT’s leadership team frequently witnessed, laughed at, and made

20

these remarks, even in the presence of Mr. Knott, suggests that INT condones such

21

behavior. See Brooks, 229 F.3d at 924 n.4 (“A case involving a single incident of sexual

22

harassment is obviously distinct from one involving a series of incidents, which the

23

employer knows about and does nothing to correct. In such circumstances, the non-

24

action by the employer can fairly be characterized as acquiescence, i.e., having changed

25

the terms and conditions of employment to include putting up with harassment from other

26

employees.”). And the fact that Plaintiff knew and witnessed discriminatory conduct

27

directed at other employees informs the Court’s assessment of the pervasiveness of the

28

harassing conduct at INT.

See Dominguez-Curry v. Nev. Transp. Dep’t., 424

- 15 -

1

F.3d 1027, 1036-37 (9th Cir. 2005) (reversing grant of summary on plaintiff’s sexual

2

harassment claim because the district court “erroneously disregarded evidence of

3

discriminatory comments that [a supervisor] directed to other women in the division”).

4

Thus, although each incident “standing alone might not satisfy the standard,” they are

5

sufficient “in the aggregate” to raise material issues of fact as to whether the conduct was

6

severe or pervasive enough to alter the conditions of Plaintiff’s employment. Craig, 496

7

F.3d at 1057; see also Zetwick v. Yolo, 850 F.3d 436, 444 (9th Cir. 2017) (requiring

8

courts to consider “the cumulative effect of the conduct at issue to determine whether it

9

was sufficiently ‘severe or pervasive’ to alter the conditions of the workplace”).

10

INT argues that the hostile work environment claim fails because Plaintiff worked

11

remotely and had only two physical interactions with Ms. Ellestad during his time at INT.

12

Doc. 67 at 8. In support, INT points to Westendorf, 712 F.3d at 419-20, where the Ninth

13

Circuit affirmed the dismissal of the plaintiff’s hostile work environment claim in part

14

because the plaintiff there had limited contact (i.e., once a week for three months) with

15

her harassing coworker and supervisor. But this argument inappropriately minimizes the

16

Court’s obligation to look at “all of the circumstances” when assessing the severity or

17

pervasiveness of the alleged harassment. This is especially true here, where Plaintiff

18

presents evidence that a principal means of communication with INT’s leadership team –

19

namely, phone call and emails – was littered with sexual language and innuendos. See

20

Dominguez-Curry, 424 F.3d at 1035 (reversing grant of summary judgment because the

21

district court erroneously disregarded the evidence about the frequency of the

22

supervisor’s discriminatory remarks, which plaintiff testified occurred “like everyday”).

23
24

The Court concludes that disputes of material fact prevent the entry of summary
judgment on whether the alleged conduct was severe or pervasive.

25

B.

26

Title VII prohibits retaliation against an employee for opposing an unlawful

27

employment practice or participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a).

28

A successful retaliation claim must establish that (1) the employee engaged in a protected

Retaliation.

- 16 -

1

activity, (2) the employer took an adverse employment action against the employee,

2

and (3) the employer would not have taken the adverse employment action but for a

3

design to retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see

4

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (clarifying that

5

employee must show “but for” causation).

6

INT argues that Plaintiff did not engage in a protected activity and that it did not

7

take any adverse employment action against Plaintiff. Doc. 67 at 11-15. Disputes of

8

material fact prevent the entry of summary judgment on this claim.

9

1.

Protected Activity.

10

An employee engages in “protected activity” when he complains about or protests

11

conduct that he reasonably believes constitutes an unlawful employment practice. See 42

12

U.S.C. § 2000e-3(a) (describing “protected activity”); Trent v. Valley Elec. Ass’n Inc., 41

13

F.3d 524, 526 (9th Cir. 1994). INT contends that Plaintiff never engaged in such activity.

14

Doc. 67 at 12-13. Specifically, INT argues that Plaintiff’s phone calls with Courtney and

15

Chris Knott in December 2015 do not constitute complaints because he did not provide

16

any specific examples of the sexual harassment. Id. Moreover, INT argues that it could

17

not have retaliated against Plaintiff based on his EEOC charge because INT received

18

notice of the charge after the alleged retaliatory conduct occurred. Id. at 13.

19

“An employee need not utter magic words to put his employer on notice that he is

20

complaining about unlawful discrimination.” Ekweani v. Ameriprise Fin., Inc., No.

21

CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D. Ariz. Feb. 8, 2010) (citation

22

omitted). Whether “analyzed as a requirement for protected activity or under the element

23

of causal link, [] an employer must reasonably be aware that its employee is engaging in

24

protected activity.” Id. (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th

25

Cir. 1982) (“Essential to a causal link is evidence that the employer was aware that the

26

plaintiff had engaged in the protected activity.”)); see also Quinones v. Potter, 661 F.

27

Supp. 2d 1105, 1126-27 (D. Ariz. 2009) (citing Galdieri-Ambrosini v. Nat’l Realty &

28

Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998) for the proposition that “implicit in the

- 17 -

1

requirement that the employer have been aware of the protected activity is the

2

requirement that it understood or could reasonably have understood, that the plaintiff’s

3

opposition was directed at conduct prohibited by Title VII”).

4

The parties dispute whether Plaintiff complained to INT in December 2015.

5

Plaintiff testified that he spoke with Courtney Knott, the daughter of Chris Knott and INT

6

manager, on December 16, 2015. Although only providing “very generic examples” of

7

his problems, he specifically asked her how to raise his concerns about Ms. Ellestad and

8

Mr. Moloney to her father. Pursuant to her advice, Plaintiff spoke with Chris Knott the

9

following day. On that call, Plaintiff testified that he told Mr. Knott that he and other

10

employees were having problems with Ms. Ellestad, Mr. Moloney, and the “sexual

11

context on some of [the] calls.” He stated that Mr. Knott would not “allow [him] to

12

speak” or to provide specific examples but just admonished Plaintiff to focus on how he

13

could do a “better job instead of worrying about the members of the organization that [he

14

is] having problems with.” Mr. Knott denied this occurred, testifying that they discussed

15

Plaintiff’s financial stress. INT also produces documentation indicating that it forgave

16

Plaintiff’s remaining debt, which Mr. Knott testified he offered to do for Plaintiff during

17

the call.

18

The parties do not dispute that these phone calls occurred; rather, they dispute

19

their content. Although the December 16 call with Courtney Knott may be too vague to

20

provide sufficient notice to INT of discriminatory conduct, a reasonable jury could find

21

that the December 17 call put Mr. Knott on notice that Plaintiff was complaining about

22

sexual harassment.

23

prevent the entry of summary judgment on whether Plaintiff engaged in protected

24

activity.6

The Court accordingly concludes that disputes of material fact

25
26
6

27
28

Because the alleged retaliatory conduct occurred after the December 2015 phone
calls, the Court need not address whether INT was aware of the EEOC charge when it
engaged in the alleged retaliatory conduct.

- 18 -

1

2.

Adverse Employment Action.

2

Title VII’s anti-retaliation provision protects against “materially adverse”

3

employment actions – actions that might dissuade a reasonable worker from making or

4

supporting a charge of discrimination – but not against “petty slights or minor

5

annoyances that often take place at work and that all employees experience.” Burlington

6

N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Court’s role at the

7

summary judgment stage is limited to determining whether there is evidence in the record

8

that would support a reasonable jury in finding that the action complained of was

9

materially adverse. Where the evidence would permit no such finding, the Court may

10

grant summary judgment. See, e.g., Johnson v. Fed. Express Corp., No. CV-14-02428-

11

PHX-DGC, 2016 WL 1593811, at *4 (D. Ariz. Apr. 21, 2016).

12

INT argues that there is no evidence that it took any adverse employment action

13

against Plaintiff. Doc. 67 at 13-15. Plaintiff identifies at least four instances of adverse

14

action: (1) Mr. Knott cut Plaintiff’s draw in close proximity to the December 2015 phone

15

calls; (2) INT started giving him lower quality leads, which affected his ability to perform

16

and earn commissions; (3) Ms. Ellestad gave him a negative performance review, which

17

Plaintiff acknowledges INT later reversed after he complained; and (4) Mr. Knott

18

informed Plaintiff that he was developing a reputation as being hard to work with among

19

INT’s leadership team. Doc. 72 at 16-17.

20

A negative performance review, which is subsequently reversed or changed by the

21

employer, and “badmouthing an employee outside the job reference context do not

22

constitute adverse employment actions.” Brooks, 229 F.3d at 929-930; Kortan v. Cal.

23

Youth Auth., 217 F.3d 1104, 1112-1113 (9th Cir. 2000) (holding that a subsequently

24

corrected evaluation does not constitute an adverse employment action). Consequently,

25

Plaintiff’s concerns about his reversed performance review and the “hard to work with”

26

reputation do not suffice.

27

The parties dispute whether Mr. Knott’s decision to not extend Plaintiff’s draw

28

constitutes an adverse employment action. Although his offer of employment letter only

- 19 -

1

guaranteed Plaintiff a draw for four months with the possibility of a two month extension

2

for good performance, INT concedes it gave Plaintiff a draw for seven months – one

3

month beyond what it contractually offered. The record also includes evidence that other

4

employees received draws beyond what they were contractually entitled to receive.

5

Doc. 73-1 at 78, 80; Doc. 73-2 at 4 ¶ 11; Doc. 73-3 at 15, 17, 21; Doc. 71-6 at 4, 5. The

6

lack of a draw reduced Plaintiff’s earnings by $1,200 per month. The Ninth Circuit has

7

held that decreased compensation can be an adverse employment action, including

8

situations when the compensation is not guaranteed contractually. See Little, 301 F.3d

9

at 970 (reduction in monthly pay is an adverse employment action); Ray, 217 F.3d

10

at 1241 (discussing Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 869 (9th

11

Cir. 1996), where the Ninth Circuit found a plaintiff suffered an adverse employment

12

action because “she was excluded from meetings, seminars, and positions that would

13

have made her eligible for salary increases” (emphasis added)). And providing Plaintiff

14

lower quality leads could be materially adverse because it could affect his compensation,

15

which is based in part on commission.

16

A reasonable jury could find that a $1,200 reduction in monthly pay and poorer

17

leads could dissuade a reasonable worker from making or supporting a charge of

18

discrimination.

19

C.

20

INT argues that it is entitled to summary judgment on compensatory damages

21

because Plaintiff failed to produce sufficient evidence, such as tax returns or names of

22

medical providers, showing that he suffered economic and emotional damages. Doc. 67

23

at 15-16; Doc. 76 at 12. In his complaint, Plaintiff seeks “back pay, front pay, and any

24

other available compensatory damages” as well as “general damages for his emotional

25

distress, sleeplessness, depression, loss of focus and concentration, pain and suffering,

26

inconvenience, mental anguish, embarrassment, frustration, humiliation, and the loss of

27

enjoyment of life.” Doc. 18 at 10 ¶¶ A-B.

Damages.

28

- 20 -

1

Plaintiff has presented evidence to substantiate his alleged damages. Plaintiff

2

testified that he lost wages as result of quitting INT because INT recruiters he started

3

with make more money than he currently makes. Doc. 71-1 at 97. He worked from

4

home while at INT, and Plaintiff testified that he must commute an hour each way to his

5

new job. Doc. 71-1 at 98-99. Plaintiff also asserts that he must pay for after-school

6

daycare for two of his three children because he no longer works from home. Doc. 71-1

7

at 99. And he testified that he sought medical treatment for stress and a panic attack due

8

to the harassment at INT. Doc. 71-1 at 102-108. From this evidence, a reasonable jury

9

could find that Plaintiff has suffered damages.

10

D.

11

“Under Title VII, there is a presumption that an employer is vicariously liable for

Faragher/Ellerth Affirmative Defense.

12

a hostile environment created by a supervisor.”

13

F.3d 1068, 1074 n.2 (9th Cir. 2005) (internal quotation marks and citation omitted). An

14

employer may avoid liability if it shows by a preponderance of evidence that (1) it

15

“exercised reasonable care to prevent and correct promptly any sexually harassing

16

behavior” and (2) “the plaintiff employee unreasonably failed to take advantage of any

17

preventive or corrective opportunities provided by the employer[.]” Faragher, 524 U.S.

18

at 807; Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998) (collectively,

19

Faragher/Ellerth defense). But an employer cannot assert a reasonable care defense

20

if (1) the “employee has been subjected to an unlawful ‘tangible employment action’ by a

21

supervisor,” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1167 (9th Cir. 2003), or

22

(2) “the corporate officers who engage[d] in illegal conduct are sufficiently senior to be

23

considered proxies for the company,” Passantino v. Johnson & Johnson Consumer Prod.,

24

Inc., 212 F.3d 493, 517 (9th Cir. 2000).

El-Hakem v. BJY, Inc., 415

25

Plaintiff argues that the Faragher/Ellerth defense is unavailable because Ms.

26

Ellestad was a proxy of INT and took a tangible employment action against him. Doc. 69

27

at 5-8. Even if INT can assert the defense, Plaintiff contends that it cannot demonstrate

28

- 21 -

1

reasonable care. Id. at 8-11. Genuine issues of material fact prevent summary judgment

2

on this issue.

3

1.

Tangible Employment Action.

4

“A tangible employment action constitutes a significant change in employment

5

status, such as hiring, firing, failing to promote, reassignment with significantly different

6

responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S.

7

at 761. Such actions “are the means by which the supervisor brings the official power of

8

the enterprise to bear on subordinates,” and it “requires an official act of the enterprise, a

9

company act.” Id. at 762. “A tangible employment action in most cases inflicts direct

10

economic harm.” Id. But “even if a tangible employment action occurred, an employer

11

may still assert the affirmative defense if the tangible employment action ‘was unrelated

12

to any harassment or complaint thereof.’” Elvig v. Calvin Presbyterian Church, 375

13

F.3d 951, 959 (9th Cir. 2004) (citing Nichols, 256 F.3d at 877).

14

The parties dispute whether Mr. Knott’s decision to not extend Plaintiff a draw

15

constitutes a tangible employment action. Doc. 69 at 6-8; Doc. 77 at 5-7. Although

16

Plaintiff may not have been contractually guaranteed a draw for more than six months,

17

INT gave Plaintiff a draw for one month beyond what his offer letter provided. And, as

18

noted above, the fact that a draw is not contractually guaranteed does not necessarily

19

mean that it is not a benefit of employment. Evidence in the record shows that Mr. Knott,

20

Ms. Ellestad, and other members of INT’s leadership team met, discussed, and decided

21

not to extend Plaintiff a draw, and this decision to discontinue Plaintiff’s draw inflicted

22

direct economic harm on Plaintiff. Plaintiff has presented evidence sufficient for a

23

reasonable jury to find that this decision was a tangible employment action.

24

But even if the decision to discontinue Plaintiff’s draw was a tangible employment

25

action, the parties dispute the motivation for that decision. Given the temporal proximity

26

between Plaintiff’s December 2015 complaint and the draw decision, Plaintiff contends

27

that INT declined to extend the draw because he complained of sexual harassment.

28

Although Mr. Knott admits Plaintiff’s productivity was not the “sole reason” (Doc. 73-3

- 22 -

1

at 17), Mr. Knott and Ms. Ellestad testify that they eliminated the draw because of

2

Plaintiff’s low productivity. This conflicting testimony creates a dispute of material fact

3

as to the motivation of INT’s decision. See Elvig, 375 F.3d at 959 (“[E]ven if a tangible

4

employment action occurred, an employer may still assert the affirmative defense if the

5

tangible employment action ‘was unrelated to any harassment or complaint thereof.’”

6

(citing Nichols, 256 F.3d at 877)).7

7

2.

Proxy Doctrine.

8

Plaintiff argues that INT cannot assert the Faragher/Ellerth defense because Ms.

9

Ellestad was a high-ranking officer and a proxy for INT. Doc. 69 at 5-6. The Ninth

10

Circuit has recognized that an employer cannot invoke the Faragher/Ellerth defense if

11

the harasser is “sufficiently senior” to be considered a proxy for the company. See

12

Passantino, 212 F.3d at 517; see also Hemmings v. Tidyman’s Inc., 285

13

F.3d 1174, 1197-98 (9th Cir. 2002).8 The Supreme Court has held that the individual

14

who holds the highest position within the organization is “indisputably within that class

15

of an employer organization’s officials who may be treated as the organization’s proxy,”

16

Faragher, 524 U.S. at 789, and has further suggested that an owner, supervisor holding a

17

“sufficiently high position ‘in the management hierarchy,’” proprietor, partner, or

18
19
20
21
22
23
24
25
26
27
28

7

Plaintiff argues that he suffered other tangible employment actions, such as being
given lower quality leads and being labeled “hard to work with” by the leadership team.
Doc. 69 at 7-8. Even assuming these constitute tangible employment actions, the
question remains whether they are unrelated to the alleged sexual harassment complaint.
8

Passantino and Hemmings both concern whether the proxy doctrine prohibits an
employer from raising the Faragher/Ellerth defense to an award of punitive damages.
See Passantino, 212 F.3d at 517; Hemmings, 285 F.3d at 1197-98. Outside of the
punitive damages context, neither opinion expressly holds that the Faragher/Ellerth
defense is unavailable when the alleged harasser is a proxy for the employer. Plaintiff
cites non-binding decisions reaching that conclusion, see, e.g., Johnson v. West, 218
F.3d 725 (7th Cir. 2000), and the Court finds no Ninth Circuit case adopting such a rule.
Some district courts in the Ninth Circuit have reached such a holding. See, e.g., E.E.O.C.
v. OSI Rest. Partners, Inc., No. CV-07-0683-PHX-SMM, 2010 WL 11519281, at *11 (D.
Ariz. Feb. 5, 2010); E.E.O.C. v. Reeves, No. CV0010515DTRZX, 2003 WL 22999369,
at *9 (C.D. Cal. Dec. 8, 2003). Neither party raises this issue, and the Court therefore
will assume without deciding that the proxy doctrine can bar the Faragher/Ellerth
defense.

- 23 -

1

corporate officer may also be treated as a corporation’s proxy, see id. at 789-90. Other

2

than these parameters, “the Supreme Court and the Ninth Circuit have not set forth

3

determinative factors for when an individual is ‘sufficiently senior’ or ‘sufficiently high

4

up’ in a company.”

5

SMM, 2010 WL 11519281, at *11 (D. Ariz. Feb. 5, 2010).

E.E.O.C. v. OSI Rest. Partners, Inc., No. CV-07-0683-PHX-

6

The parties dispute whether Ms. Ellestad is “sufficiently senior” to be treated as a

7

proxy for the company. Doc. 69 at 5-6; Doc. 77 at 3-4. Ms. Ellestad is INT’s Vice

8

President of Recruiting and one of six individuals on INT’s leadership team that advises

9

Mr. Knott on business matters. It is unclear what authority she possesses as a member of

10

INT’s leadership team. Ms. Ellestad testified that she could not discontinue a recruiter’s

11

draw without Mr. Knott’s approval (Doc. 80-2 at 4), but she also stated that Mr. Knott

12

could not make this decision alone because such decisions require the approval of “two or

13

more” members of INT’s leadership team (id. at 4). She also testified that she is not

14

aware of Mr. Knott discontinuing an employee’s draw on his own. Id. at 5. During his

15

deposition, Mr. Knott at times testified that draw discontinuation decisions are “made by

16

the leadership team” (Doc. 73-3 at 10); that it “depends on the situation” as to who

17

“makes the final decisions at INT” (Doc. 78-4 at 6); and used the pronoun “we” when

18

asked how many times he extended Plaintiff’s draw (Doc. 73-3 at 15). At other times,

19

Mr. Knott testified that, although he discusses with his leadership team whether to

20

continue an employee’s draw, he is “ultimately responsible for that decision” (id. at 18)

21

and has “veto power” (Doc. 78-4 at 127).

22

It also is unclear who supervises and disciplines Ms. Ellestad. Plaintiff contends

23

that Ms. Ellestad reports to Mr. Knott. Doc. 80 at 1 ¶ 19. Mr. Knott testified that Ms.

24

Ellestad reports to him “for the most part” as well as to Ms. Rutledge, Vice President and

25

Director of Technical Recruiting. Doc. 80-1 at 4. But he also admitted that only he

26

evaluates Ms. Ellestad’s job performance and decides her salary and bonus percentage.

27

Id. at 4, 8-9. Ms. Moulton, INT’s Human Resource Manager, serves on INT’s leadership

28

team and averred in a declaration that she has “the power to take disciplinary action

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1

against [Ms. Ellestad]” if she “violate[s] INT’s anti-harassment policy.”9 Doc. 78-5 at 3

2

¶ 7. Ms. Moulton reports to Mr. Knott (Doc. 78-4 at 4), but Mr. Knott testified that Ms.

3

Moulton “maintains autonomy” as to how to handle and resolve sexual harassment

4

complaints (id. at 3-4). He stated that Ms. Moulton serves as a “confidential source” for

5

complaints and does not necessarily have to report harassment complaints to him. Id.

6

at 3-4. But because Mr. Knott reviews Ms. Ellestad’s job performance and decides her

7

pay and benefits, it is unclear how Ms. Moulton can discipline Ms. Ellestad, especially

8

since Ms. Moulton is not necessarily required to notify Mr. Knott of sexual harassment

9

complaints regarding Ms. Ellestad.

10

In light of this lack of clarity as to Ms. Ellestad’s authority and relationship with

11

other corporate officers, disputes of material fact prevent the entry of summary judgment

12

on this issue.

13

3.

Reasonable Care.

14

In order to succeed on the Faragher/Ellerth affirmative defense, an employer must

15

show by the preponderance of the evidence that (1) it “exercised reasonable care to

16

prevent and correct promptly any sexually harassing behavior” and (2) “the plaintiff

17

employee unreasonably failed to take advantage of any preventive or corrective

18

opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S.

19

at 807; Ellerth, 524 U.S. at 765. Plaintiff argues that the undisputed facts show that INT

20

cannot establish either element. Doc. 69 at 8-11.

21

With respect to the first element, “an employer’s adoption of an anti-harassment

22

policy and its efforts to disseminate the policy to its employees establish that [the

23

employer] exercised reasonable care to prevent sexual harassment in the workplace.”

24

Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1185 (9th Cir. 2005) (citation and quotation

25
9

26
27
28

Plaintiff argues in its reply that Ms. Moulton’s declaration is a sham declaration
because it was prepared solely to contradict Ms. Ellestad’s prior deposition testimony.
Doc. 79 at 9. “The general rule in the Ninth Circuit is that a party cannot create an issue
of fact by an affidavit contradicting his prior deposition testimony.” Van Asdale v. Int’l
Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (citation and quotation marks omitted).
Plaintiff’s argument fails because Ms. Moulton is not contradicting her prior deposition,
but the deposition testimony of another individual.
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1

marks omitted). INT produces their “Policies and Procedures Manual,” which includes

2

its anti-harassment policy. Doc. 68-1 at 13-15. The policy describes prohibited sexual

3

conduct, the complaint and investigation procedures, and the enforcement of the policy.

4

Id. at 14-15. The policy does not require Plaintiff to report harassment to his immediate

5

supervisor, Ms. Ellestad, but rather affords him two reporting avenues: either the Director

6

of Human Resources or his Account Manager.10 Id. at 15. INT also produces an

7

“Associate Handbook Acknowledgement Form,” which states that the handbook

8

“contains important information and guidelines such as prohibited harassment and Equal

9

Employment Opportunity.” Doc. 78-8 at 2. Plaintiff signed the form on July 13, 2015,

10

acknowledging that he “received this Handbook and understand[s] that it is [his]

11

responsibility to read and comply with the policies contained [therein].” Id. Plaintiff

12

testified that he was familiar with INT’s anti-harassment policy (Doc. 78-2 at 6), and he

13

does not dispute that he received “the Manual” (Doc. 80 at 7 ¶ 37).11

14

INT must also demonstrate that it took reasonable steps to promptly resolve

15

Plaintiff’s sexual harassment complaint. Hardage, 427 F.3d at 1185-86. Although an

16

“investigation is a key step,” courts must “‘consider the overall picture’ to determine

17

whether the employer’s response was appropriate.” Id. at 1186 (quoting Swenson v.

18

Potter, 271 F.3d 1184, 1193, 1197 (9th Cir. 2001)). “Notice of the sexually harassing

19

conduct triggers an employer’s duty to take prompt corrective action that is ‘reasonably

20
21
22
23

10

Plaintiff argues for the first time in his reply that the anti-harassment policy is
unreasonable because there is no “Director of Human Resources.” Doc. 79 at 8. The
Court will not consider an argument made for the first time in a reply. Gadda v. State
Bar of Cal., 511 F.3d 933, 937 n.2 (9th Cir. 2007).
11

24
25
26
27
28

INT notes that it required all employees to attend formal anti-harassment
training in July 2016 and January 2018. Doc. 77 at 8; Doc. 78-5 at 4 ¶ 14. But it is
undisputed that Plaintiff quit in April 2016, and therefore could not have attended these
training sessions. INT does not state that Plaintiff attended any anti-harassment training
sessions. Even so, INT’s adoption and communication of an anti-harassment policy,
which Plaintiff does not dispute, establishes reasonable care to prevent harassment as a
matter of law. See Hardage, 427 F.3d at 1185 (finding employer fulfilled its preventive
measures “to disseminate the policy” because the parties did not contest that the
employer had an anti-harassment policy, with which the employee was familiar).

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1

calculated to the end the harassment.’” Swenson, 271 F.3d at 1192 (quoting Nichols, 256

2

F.3d at 875).

3

Plaintiff argues that INT did not promptly address the harassing behavior because

4

INT did not investigate his December 2015 complaint to Mr. Knott. Doc. 69 at 9. INT

5

counters with evidence that the December 2015 telephone conversation was not a

6

complaint and that it first learned of Plaintiff’s EEOC charge in April 2016, whereupon it

7

promptly opened an investigation. This dispute precludes summary judgment based on

8

INT’s alleged failure to take prompt corrective action.12

9

With respect to the second element of the defense, Plaintiff must have

10

“unreasonably failed to take advantage of any preventive or corrective opportunities

11

provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807

12

(emphasis added). “[W]hile proof that an employee failed to fulfill the corresponding

13

obligation of reasonable care to avoid harm is not limited to showing an unreasonable

14

failure to use any complaint procedure provided by the employer, a demonstration of

15

such failure will normally suffice to satisfy the employer’s burden under the second

16

element of the defense.” Id. at 807-08; Ellerth, 524 U.S. at 765.

17

The parties do not dispute that Plaintiff never complained to his Account Manager

18

or the Human Resource Manager, as required by INT’s anti-harassment policy. They

19

instead dispute the reasonableness of Plaintiff’s decision to not follow INT’s complaint

20

procedure. On one hand, it may have been reasonable for Plaintiff to not complain to his

21

Account Manager because his Account Manager reports to Ms. Ellestad’s husband, Mr.

22

Moloney. See Doc. 78-7 at 2. It may also have been reasonable for Plaintiff to not

23

complain to Ms. Moulton because she did not necessarily have to report his complaint to

24

Mr. Knott and she may not have had the power to discipline Ms. Ellestad. But as noted

25

above, the parties dispute Ms. Moulton’s disciplinary power over Ms. Ellestad. Even

26

assuming that Plaintiff may have acted unreasonably by not complaining to Ms. Moulton,

27
12

28

Plaintiff argues for the first time in his reply that INT did not promptly
investigate his EEOC charge or his claim of retaliation set forth in his self-evaluation.
Doc. 79 at 9. The Court cannot consider this argument. Gadda, 511 F.3d at 937 n.2.
- 27 -

1

his alleged complaint in December 2015 to Mr. Knott would suffice as an attempt “to

2

avoid harm otherwise” because Mr. Knott, as Ms. Ellestad’s supervisor, could have put a

3

stop to the harassment. Cf. Holly D., 339 F.3d at 1179 (finding the failure to use the

4

company’s reporting procedures to be unreasonable because plaintiff “made no attempt to

5

seek relief from any person able to help put a stop to the harassment”); Jernigan v.

6

Alderwoods Grp., Inc., 489 F. Supp. 2d 1180, 1197 (D. Or. 2007) (finding that employer

7

cannot show as a matter of law that plaintiff unreasonably failed to invoke the complaint

8

procedure and avoid harm because plaintiff complained to her supervisor for two years

9

before reporting the sexual harassment to human resources, as required by the company’s

10

complaint procedures). Because the parties dispute whether Plaintiff attempted to avoid

11

harm by reporting his harassment to Mr. Knott and whether Ms. Moulton has the power

12

to discipline Ms. Ellestad, a jury must decide whether Plaintiff acted unreasonably by

13

failing to use INT’s complaint procedure.

14

Because genuine issues of material fact exist as to both elements of INT’s

15

Faragher/Ellerth affirmative defense, the Court will deny Plaintiff’s motion for partial

16

summary judgment.

17

IT IS ORDERED:

18

1.

INT’s motion for summary judgment (Doc. 67) is denied.

19

2.

Plaintiff’s motion for partial summary judgment (Doc. 69) is denied.

20

3.

INT’s motion to strike (Doc. 73) is denied.

21

4.

The Court will hold a conference call on May 30, 2018 at 4:30 p.m. to set

22

a final pretrial conference and trial date. Counsel for Plaintiff shall initiate

23

a conference call to include all counsel and the Court. If a dial-in number is

24

to be used, the dial-in information shall be provided to all counsel and the

25

Court no later than May 29, 2018 at 12:00 noon.

26

Dated this 21st day of May, 2018.

27
28

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