Free Reply to Response to Motion - District Court of Arizona - Arizona

Andrew Thomas M ARICOPA C OUNTY A TTORNEY Daniel R. Brenden, Bar #016395 Mary C. Cronin, Bar #010816 Division of County Counsel 222 North Central Avenue, Ste. 1100 Phoenix, Arizona 85004-2206 (602) 506-8541 Eileen Dennis GilBride, Bar #009220 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Ste. 800 Phoenix, Arizona 85012 (602) 263-1700 Attorneys for Defendants Maricopa County Department of Transportation, Medlin, Peterson and Ramsey IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Scott M. McNair, Plaintiff, vs. Maricopa County Department of Transportation; Kenneth Medlin; Terry Peterson; Jennipher Ramsey; State of Arizona Personnel Board, Defendants. Plaintiff has not come forward with evidence or arguments sufficient to survive summary judgment. Defendants respectfully request the Court to grant their motion. I. THE INDIVIDUAL DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW Preliminarily, because Plaintiff's complaint alleges a claim only under Title VII (see Complaint, ¶1), the entire complaint must be dismissed as against the individual defendants. The individual defendants are Plaintiff's co-worker and supervisors. Title VII does not provide a cause of action against co-workers or supervisors. Holly D. v. California Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003). REPLY IN SUPPORT OF THE COUNTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. CIV03-2119-PHX-NVW

Case 2:03-cv-02119-NVW

Document 72

Filed 10/18/2005

Page 1 of 12

II. THE COUNTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S PUNITIVE DAMAGE CLAIM Plaintiff seeks but is not entitled to punitive damages under 42 U .S.C. § 1981a (Complaint, ¶1). This section specifically exempts governments and political subdivisions from its ambit ("A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) . . . ."). City of Newport v. Fact Concerts, 453 U.S. 247, 271 (1981); Mitchell v. Duphik, 75 F.3d 517, 527 (9th Cir. 1996). III. PLAINTIFF HAS NOT COME FORWARD WITH EVIDENCE SUFFICIENT TO SURVIVE SUMMARY JUDGMENT ON HIS SEXUAL HARASSMENT CLAIM Plaintiff has not alleged that his supervisor(s) sexually harassed him. He seems to allege that his female co-worker, Defendant Ramsey, created a hostile work environment by engaging Plaintiff in sexually-oriented discussions. Defendants are entitled to summary judgment on this claim on several grounds. A. existed. The admissible record is undisputed that no hostile work environment

Defendant Ramsey avowed in her affidavit that she and Plaintiff had a casual friendship outside the office, and that she "never participated in sexual innuendos with McNair" (DSOF Ex. B, ¶7). She avowed that if something was said outside the office on their own time that could have been interpreted as having a sexual meaning, "we would laugh about it and move on, but we certainly never flirted with each other" (Id.). Plaintiff has not submitted admissible contrary evidence. See Rule 56(e). He does not even address this avowal in his summary judgment response. Thus, the record is undisputed that no sexual harassment occurred. For this reason alone, summary judgment is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986).

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B. Even if sexual conversations took place, Plaintiff has not met his burden of coming forward with necessary evidence for a sexual harassment claim. In response to Defendants' motion, Plaintiff seems to rely on the allegations of the 40-page complaint he filed months after his contract expired (DSOF Ex. 9) (Response at 3, n.3, n.5 and at 5, n.8). These allegations are insufficient to defeat summary judgment. Rule 56(e), F.R.Civ.P.; Local Rule 56.1. But even if the Court were to consider them, they are insufficient to meet a prima facie sexual harassment claim. To establish a claim of hostile work environment, a plaintiff must show that: (1) he or she was a member of a protected group; (2) he or she was subjected to unwelcome harassment in the workplace; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Alagna v. Smithville R-II, 324 F.3d 975, 979 (8th Cir.2003); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 965 (8th Cir.1999). By Plaintiff's own description in his 40-page complaint, (1) any harassment by Ms. Ramsey was not severe or pervasive; (2) the conversations were not unwelcome; and (3) the employer did not know of the harassment, and took prompt and effective remedial action for the complaints that were made. 1. By Plaintiff's description, any harassment was not severe or pervasive. To establish the fourth element, a plaintiff must be prove that the harassment was "so severe or pervasive as to alter a term, condition, or privilege of employment." Scusa, 181 F.3d at 967. Plaintiff must establish harassment that is "so intimidating, offensive, or hostile that it 'poisoned the work environment.' " Scusa, 181 F.3d at 967; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993). Both an objective and subjective test must be met; in other words, the conduct must be so severe or pervasive as to constitute a hostile or abusive working environment both to the reasonable person and the actual victim. Id. at 21-22. To determine whether an environment is hostile, courts 3 Case 2:03-cv-02119-NVW Document 72 Filed 10/18/2005 Page 3 of 12

must look at all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275 (1998). See, e.g., Chavez v. Thomas & Betts Corp. 396 F.3d 1088 (10 th Cir. 2005) (hostile work environment where supervisor made humiliating comments about female plaintiff's body parts, called men over to guess what kind of underwear she was wearing, physically assaulted her by pulling open her shirt and pants, exposing her underwear; conduct was extreme, humiliating, physically threatening, embarrassing, and caused plaintiff to become depressed and sick). Plaintiff has not submitted admissible evidence of any such conduct. Nor does his own description of events (DSOF Ex. 9) make any allegations of this sort. His complaint shows that Plaintiff willingly engaged in conversations with Defendant Ramsey in and out of the work place that were sexual in nature (see, e.g. DSOF Ex. 9 at 3-12). He alleges that he "made no attempt to silence this activity, and instead treated [her sexual innuendos and giggling] as entertainment more than anything else" (DSOF Ex. 9 at 2). He does not allege that she forced him to engage in sexual conduct, groped or threatened him, or that she made humiliating remarks to him because of his sex. He does not allege that he was unable to work. As a matter of law, this is not the kind of severe or pervasive conduct that creates a discriminatorily abusive working environment. See Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988) (abusive environment not created where parties were engaged in flirtatious conversation, and men and women told "off-color" jokes at work). 2. The conversations were not unwelcome.

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For many of the same reasons, Plaintiff cannot meet his burden of showing that Defendant Ramsey's conversations were unwelcome. In order to find conduct

"unwelcome," the complaining party must show that he "neither solicited it nor invited it and regarded the conduct as undesirable or offensive." Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.1999). "The proper inquiry is whether [appellant] indicated by his conduct that the alleged harassment was unwelcome." Id. Plaintiff's recitation (DSOF Ex. 9) of his own conduct shows that the sexual conversations were not unwelcome; to the contrary, he willingly participated in them. He alleged that he questioned Ms. Ramsey about her relationship with "Jason" (Id. at 5, 7, 9), asked her about her relationship with Brian Dalager (Id.), invited her to join him at a club (Id.), called her on a number of occasions (Id. at 6, 12, 16, 17), teased her (Id.), accused her of making a "booty call" (Id.), laughed when she proclaimed to have given a guy a "blowjob" in a parking lot (Id.), tried to find out what her "Life Plan" was (Id. at 8), commented on her appearance (Id. at 9), engaged in sexual conversations (Id. at 10), and invited her to events (Id. at 11, 13-14). Plaintiff cannot meet the "unwelcome" element of a sexual harassment claim. 3. The employer did not know of the harassment, and took prompt and effective remedial action for the complaints that were made. Employer liability for co-worker harassment is based directly on the employer's conduct; and as such, an employer can only be held liable if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 965 (8th Cir.1999). In determining whether a response was "prompt and appropriate," negligence in fashioning a remedy is not sufficient for the employer to incur liability." Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 873 (6th Cir.1997). Rather, the employer will only be liable "if its response manifests 5 Case 2:03-cv-02119-NVW Document 72 Filed 10/18/2005 Page 5 of 12

indifference or unreasonableness in light of the facts the employer knew or should have known. An employer who implements a remedy "can be liable for sex discrimination in violation of Title VII only if that remedy exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination." McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir.2005). The record does not show such an indifference that amounts to discrimination. First, Mr. Peterson avowed that Plaintiff did not mention any sexual harassment or make any such claim during his December 31, 2001 telephonic complaint (DSOF Attachment A at ¶¶5-6, 10). Plaintiff complained only that Defendant Ramsey's friend had threatened him (Id.). Plaintiff has not controverted this affidavit as required by Rule 56(e), and as such, this fact remains undisputed. Plaintiff cites only to his own allegation in his complaint, which is insufficient under Rule 56(e) to withstand summary judgment. Even if the Court were to consider Plaintiff's allegations in his complaint, however, those allegations are insufficient to show that Plaintiff made a sexual harassment claim on December 31st. Plaintiff alleged that when Mr. Peterson asked what the problem was, Plaintiff began explaining the entire background of his relationship with Ms. Ramsey, including that they used to go out together, about what he called her "sexual tease games," and how she had an abusive boyfriend, and concluded by indicating that he was "concerned of being ambushed in the parking lot by some wife-beating redneck [Ms. Ramsey's male visitor]" (DSOF Ex. 9 at 20) (emphasis in original). This is the allegation upon which Plaintiff relies to show that he made a sexual harassment claim on December 31st (Response at 3). But these allegations do not demonstrate that Plaintiff made a sexual harassment complaint to Mr. Peterson about Defendant Ramsey. They demonstrate that Plaintiff was worried about being ambushed in the parking lot by an abusive boyfriend of a woman Plaintiff went out with outside of work.

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Furthermore, the record remains undisputed that Mr. Peterson's response to the complaint that was made was prompt and appropriate. Plaintiff alleges that Mr. Peterson gave Plaintiff time off with pay while he conducted an immediate investigation (Id. at 20). Mr. Peterson avowed that the day after, he investigated the matter with the Service Desk, questioned Ms. Ramsey, and informed his supervisor, Mr. Medlin, of the complaint (DSOF Attachment A, ¶¶5-8). As a matter of law, this response does not exhibit such indifference as to indicate an attitude of permissiveness that amounts to discrimination.1 In short, Plaintiff has not come forward with the evidence necessary to prove that sexual harassment occurred, or that the County was so indifferent as to indicate an attitude of permissiveness that amounts to discrimination. Summary judgment is appropriate. IV. PLAINTIFF CANNOT PROVE RETALIATION To prove a claim for retaliation, a plaintiff must show (1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000); Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1113 (9th Cir. 2003). If the plaintiff can make out a prima facie case, the burden shifts to the defendant to show that a legitimate, nondiscriminatory reason exists for its employment decision. Then, the plaintiff bears the burden of showing that the employer's proffered reason is pretextual. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir.1997). Summary judgment for Defendants is appropriate for several reasons. A. Plaintiff first made a sexual harassment claim on July 17, 2002 ­ weeks after his contract had already expired.

The County certainly properly responded to the July 17, 2002 email complaint Plaintiff made (after his contract expired). The record contains a report of a comprehensive investigation made in response to that complaint in which 33 employees were interviewed. All of the substantive portions of Plaintiff's complaint were unfounded or not sustained (DSOF Ex. 4). 7 Case 2:03-cv-02119-NVW Document 72 Filed 10/18/2005 Page 7 of 12

1

As Defendants' motion states, Plaintiff's first complained of sexual harassment in an email that he sent to County officials on July 17, 2002 (DSOF Ex. 6; Attachment A, ¶10) (Motion at 2). But Plaintiff's one-year employment contract had expired as a matter of course on June 29, 2002 (DSOF ¶¶1-3). As such, the County's decision to non-renew his contract could not have been in retaliation for a later-made sexual harassment claim. B. Plaintiff cannot show that he engaged in protected activity on December 31, 2001, or that his contract w as not renewed because of protected activity. The record does not support Plaintiff's argument that he made a sexual harassment complaint on December 31, 2001 (before his contract expired). Again, Mr. Peterson avowed that during Plaintiff's telephone complaint on December 31st, Plaintiff only complained about a threat of physical violence that had allegedly been made by Ms. Ramsey's male visitor. He avowed that Plaintiff did not complain about any sexual harassment (DSOF Attachment B ¶6). Plaintiff has not controverted this avowal as Rule 56(e) requires and as such, the fact is undisputed. Plaintiff cannot rely on the allegations of his complaint to defeat summary judgment, as he does (Response at 3). Rule 56(e). Even if the Court were to consider the allegations of that complaint (DSOF Ex. 9), they are insufficient to show that Plaintiff made a sexual harassment complaint on December 31 st. Plaintiff alleged that when Mr. Peterson asked what the problem was, Plaintiff launched into an explanation of the entire background of his relationship with Ms. Ramsey, how they used to go out together, about what he called her "sexual tease games," and how she had an abusive boyfriend who had threatened Plaintiff while he was in his own office. He concluded his story by indicating that he was "concerned of being ambushed in the parking lot by some wife-beating redneck [Ms. Ramsey's male visitor]" (DSOF Ex. 9 at 20) (emphasis in original). These allegations do not demonstrate that Plaintiff made a sexual harassment complaint to Mr. Peterson about Defendant Ramsey. They show that he was reporting a threat by an allegedly abusive boyfriend 8 Case 2:03-cv-02119-NVW Document 72 Filed 10/18/2005 Page 8 of 12

of a woman with whom Plaintiff had an "outside work" relationship, and that Plaintiff was concerned about a threat that Ms. Ramsey's male friend had made. This is not a sexual harassment complaint and it is not protected activity sufficient to survive summary judgment on a retaliation claim. Further, if Plaintiff did not engage in protected activity, he also cannot show that the later decision to non-renew his contract was causally related to or in retaliation for any protected activity. Summary judgment is appropriate on this ground. C. Even if Plaintiff made a sexual harassment claim on December 31st, giving Plaintiff a few days off with pay w hile the matter was investigated is not an adverse employment action Plaintiff's 40-page complaint (DSOF Ex. 9 at 20-21) and his court complaint (¶23) allege that after he made his telephonic complaint to Mr. Peterson on December 31 st, he was forced to take a few days off with pay while Mr. Peterson investigated. Being given a few days off with pay pending a timely investigation is not an adverse employment action. See e.g. Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.2000)(no adverse employment action where plaintiff placed on paid administrative leave and returned to pre-leave position); Peltier v. United States, 388 F.3d 984, 988 (6th Cir.2004) (suspension with pay and full benefits pending timely investigation into suspected wrongdoing is not an adverse employment action). Thus, this conduct is not actionable. D. Plaintiff cannot show that the County refused to hire him because of protected activity. Plaintiff's Response argues that he"will prove" that he was denied employment on multiple occasions after his contract ended, presumably in retaliation for having sent the email complaint on July 17 th (Response at 5). Plaintiff's opportunity to prove this was with his summary judgment response, and he did not meet his burden. In fact, the uncontroverted record belies the assertion. Mr. Peterson avowed that in November or December 2001, he offered Plaintiff the Database Administrator job that was going to 9 Case 2:03-cv-02119-NVW Document 72 Filed 10/18/2005 Page 9 of 12

replace Plaintiff's contract position, but Plaintiff laughed at the salary and said he was going on vacation or going into business (DSOF Attachment A, ¶1). The Database Administrator job paid less than half of Plaintiff's contract rate (Id. ¶4). By the time Plaintiff realized that he could not obtain a contract job at the pay he wanted, and then indicated that he wanted to apply for the DBA job, the recruitment period for the DBA position had already closed (Id., ¶¶2-4). In fact, prior to 2003, Plaintiff did not apply for any Maricopa County positions (DSOF Attachment C). In short, the uncontradicted record demonstrates that the County did not unlawfully deny Plaintiff employment opportunities even once, let alone "on multiple occasions," or "because of" protected activity. E. Even if Plaintiff could make a prima facie showing that his contract was not renewed in retaliation for some protected activity, the County met its burden of showing a legitimate, non-discriminatory reason for the non-renewal. Even if Plaintiff could establish a prima facie case of retaliation (which he cannot), thus shifting the burden of production to the County to show a legitimate, nondiscriminatory reason for its actions, Stegall v. Citadel Broadcasting Co, 350 F.3d 1061, 1066 (9th Cir. 2004) ("burden shifting" analysis applies in retaliation cases), Defendants have met that burden. Mr. Peterson avowed that Plaintiff's contract position was not renewed due to budget restrictions. Instead, MCDOT was going to recruit for an existing Database Administrator position, which paid less than half of what Plaintiff was getting for his contract rate (DSOF, Attachment A, ¶¶1, 4). Replacing Plaintiff's contract position with the full time DBA position resulted in significant savings to the department (Id.). Plaintiff has not argued in his Response that this reason for eliminating his contract position was pretextual. See Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9 th Cir. 2004) (when employer meets burden of showing legitimate, non-discriminatory reason for its action, burden shifts to plaintiff to show that reason was pretextual). A plaintiff can

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prove pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Id. This record is devoid of evidence of either direct or circumstantial evidence of pretext, and Plaintiff has not argued the point. In summary, Plaintiff has not shown that he engaged in protected activity before his contract expired as a matter of course, or that he suffered any adverse employment action as a result of protected activity. In the alternative, Defendant demonstrated a legitimate, non-discriminatory reason for its actions, and Plaintiff has failed to show that that reason was pretextual. Nor has Plaintiff has raised any genuine issues of material fact on the subject. Defendants are entitled to summary judgment on the retaliation claim. VI PLAINTIFF'S COMPLAINT RAISES NO OTHER CLAIMS Plaintiff cannot avoid summary judgment by asserting, without legal citation or factual support, that he has other nondescript actionable claims (Response at 6). His complaint raised a claim under Title VII, and he did not meet his burden of coming forward with evidence to support such a claim. CONCLUSION For the foregoing reasons, Defendants Maricopa County, Peterson, M edlin and Ramsey respectfully request the Court to grant them judgment as a matter of law on Plaintiff's complaint in its entirety. RESPECTFULLY SUBMITTED this 18th day of October, 2005. J ONES, S KELTON & H OCHULI, P.L.C.

By /s/ Eileen Dennis GilBride Eileen Dennis GilBride 2901 North Central Ave., Ste. 800 Phoenix, Arizona 85012 Co-Counsel for the County Defendants

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ORIGINAL electronically filed this 18th day of October, 2005, with: Clerk of the Court U.S. District Court of Arizona 401 West Washington Street Phoenix, Arizona 85003 and copy delivered the same day to: Honorable Neil V. Wake United States District Court Judge 401 W. Washington Phoenix, AZ 85003 and copy mailed the same day to: Scott M. M cNair 5401 North Black Canyon Highway Phoenix, Arizona 85015 Plaintiff/appellant Pro Per and copies electronically delivered the same day to: Andrew Thomas M ARICOPA C OUNTY A TTORNEY Daniel R. Brenden, Bar #016395 Mary C. Cronin, Bar #010816 Division of County Counsel 222 North Central Avenue, Ste. 1100 Phoenix, Arizona 85004-2206 Attorneys for the County Defendants Craig Mousel Sunberg & Mousel 934 West McDowell Road Phoenix, Arizona 85007 Attorneys for Arizona State Personnel Board /s/ Eileen Dennis GilBride

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