Free Statement - District Court of Arizona - Arizona

O SBORN MALEDON
A P ROF E SS IO NA L A S S OC IA T I O N A T T OR NEY S A T LA W

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The Phoenix Plaza 21st Floor 2929 North Central Avenue Phoenix, Arizona 85012-2793 P.O. Box 36379 Phoenix, Arizona 85067-6379 Telephone Facsimile 602.640.9000 602.640.9050

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Scott W. Rodgers, 013082 John L. Blanchard, 018995 Ronda R. Fisk, 022100 OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Defendant Guardsmark, LLC.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kesorn Henderson, Plaintiff, vs. Case No. CV 04-0754 PHX JAT

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Guardsmark, LLC, a Delaware corporation doing business in Arizona; Guardsmark, Inc., a Delaware corporation doing business in Arizona; John and Jane Does I-X; Black Corporation I-X, White Limited Liability Companies I-X. Defendants.

STATEMENT OF FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

1.

Guardsmark, one of the world's largest security services firms, contracts

with companies to provide security services. (See Affidavit of John J. Callahan attached hereto as Exhibit 1 ¶ 3.) 2. Guardsmark's offices in Tempe and Phoenix manage accounts for all of

Arizona, including the greater Phoenix metropolitan area, Yuma, and Tucson. (Ex. 1 ¶ 4.)

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3.

Guardsmark employed Plaintiff, a Yuma resident, as an unarmed

security officer at the Yuma Regional Medical Center ("YRMC") from February 2000, through March 16, 2001, when she resigned to take a position with the YRMC. (Ex. 1 ¶ 9.) 4. In October 2001, Guardsmark rehired Plaintiff and assigned her to a

post at St. Joseph's Hospital in Phoenix. (Ex. 1 ¶ 11.) 5. In May 2003, following an incident of misconduct in which Plaintiff

refused to follow a supervisor's direct order, Guardsmark transferred her to Phoenix Children's Hospital ("PCH"). (Ex. 1 ¶ 12.) 6. Plaintiff worked at the PCH site until September 2004, when PCH

terminated its contract with Guardsmark. (Ex. 1 ¶ 35.) 7. Plaintiff filled out two Official Guardsmark Applications for

Employment ("Applications"): the first on February 6, 2000, when she applied for the Yuma position and the second on October 24, 2001, when she returned to work at Guardsmark. (Ex. 1 ¶¶ 5, 8, 10, and Ex. A thereto; Deposition of Kesorn Henderson dated July 15, 2005, attached hereto as Exhibit 2 (excerpts) at 94:16-96:14, 107:1025.) 8. The Applications contained the full language of various policies

prohibiting discrimination and harassment, including a Diversity Policy, a No Slur Policy, and a Sexual Harassment Policy Statement (collectively, the "Policies"). (Ex. 1 ¶ 5, and Ex. A thereto.) 9. The Diversity Policy provides, in part, as follows:

Any Guardsmark employee who witnesses or experiences any discrimination or harassment prohibited by this Policy or is being pressured to engage in such conduct, by another Guardsmark employee, a client employee, client, or other sources outside Guardsmark, must call within 48 hours after the alleged act occurs and report to his or her Manager in Charge and/or the Corporation's Chief Diversity Officer, Stephen I. Kasloff, or O. Franklin Lowie, Dwight A. Butler or Donna D.
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Smith at 1-800-238-5878, a toll-free number at Corporate Headquarters. This toll-free number is available from 9:00 a.m. to 5:00 p.m. Central Time, Monday through Friday. Any Manager in Charge who receives such a report must promptly notify one of the individuals listed above. An investigation of each such report will be undertaken immediately and the employee making the report will receive a response. Any employee having questions about this Policy should call the toll-free number. (Ex. 1 ¶ 5, and Ex. A thereto at G000026.) 10. The No Slur Policy provides, in part, as follows:

1. It is against the policies of this Company for any employee to speak, write, permit, endorse, promote, gesture, or communicate in any manner, ethnic, sexual, racial, or religious slurs, or slurs concerning religious belief, age, disability, marital status, veteran status, sexual orientation or sexual preference, against another Guardsmark employee or against anyone else. Sexual slurs include, but are not limited to, remarks about one's sexuality and sexual experience. 2. Any employee who believes that he or she has heard or seen such a slur by a Guardsmark employee must call and give an oral report of the alleged act immediately (within 48 hours after the alleged slur occurs) to his/her Manager in Charge AND to the No Slur Policy Compliance Officer, Stephen I. Kasloff, at 1-800-238-5878, which is a toll-free number at Corporate Headquarters. This toll-free number is available from 9:00 a.m. to 5:00 p.m., Central Time, Monday through Friday. In the event Mr. Kasloff is unavailable, please ask to speak to Dwight A. Butler, Sandra E. Peiser, or O. Franklin Lowie at the same number. An investigation of all complaints will be undertaken immediately, and all complaints will be responded to. Any employee found by the Company after appropriate investigation to have violated this no slur policy will be subject to appropriate disciplinary action, up to and including termination of employment. (Ex. 1 ¶ 5, and Ex. A thereto at G000032.) 11. The Sexual Harassment Policy provides, in part, as follows:

1. It is illegal and against the policies of this Company for any employee, male or female, to sexually harass another employee or a non-employee (See paragraph 3). Sexual harassment includes harassment based on pregnancy, childbirth or related medical condition. Sexual harassment is defined as: (a) making unwelcome sexual advances or requests for sexual favors or other verbal or physical conduct of a sexual nature a condition of an employee's continued employment, or (b) making submission to or rejections of such conduct the basis for employment decisions affecting the employee, or (c) creating an intimidating, hostile or offensive working environment by such conduct. Examples of such conduct can include sex-oriented
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teasing or joking; unwelcome physical conduct such as hugging, assaulting, or grabbing; graphic or degrading, sexual verbal comments or epithets; displaying sexually suggestive cartoons or posters; and unwelcome sexual propositions. 2. Any employee who believes he, she or another Guardsmark employee has been the subject of sexual harassment by a Guardsmark employee must call and give an oral report of the alleged act immediately (preferably within 48 hours after the alleged harassment occurs) to his/her Manager in Charge AND to the Sexual Harassment Policy Compliance Officer(s), Stephen I. Kasloff or Donna D. Smith at 1-800238-5878, which is a toll free number at Corporate Headquarters. This is in the Central Time Zone and is available from 9:00 a.m. to 5:00 p.m., Monday through Friday. Mr. Kasloff or Ms. Smith are available to assist you immediately. In the event they are unavailable, please ask to speak to O. Franklin Lowie or Dr. Sandra Peiser at the same number. A timely report aids the Company in conducting a timely and complete investigation. An investigation of all sexual harassment complaints will be undertaken immediately. Any supervisor, agent or other employee who is found by the Company after appropriate investigation to have sexually harassed another employee will be subject to appropriate sanctions, depending on the circumstances, from a warning in his or her file up to and including termination of employment.... It is against Company policy for anyone to retaliate against an employee for reporting any type of sexual harassment. (Ex. 1 ¶ 5, and Ex. A thereto at G000033.) 12. When Plaintiff was hired, she also received as part of her uniform the

General Orders and Regulations and Instructions for Uniformed Personnel ("GORI"), which she was required to carry with her at all times. (Ex. 1 ¶ 6, and Ex. B thereto; see also Ex. 2 at 44:10-45:6.) 13. The GORI contains various regulations that Plaintiff was required to

read "often and be thoroughly familiar with," including the full text of the Policies. (Ex. 1 ¶ 7.) 14. Plaintiff and her husband consulted the GORI in deciding how to report

the alleged harassment. (Ex. 2 at 102:11-14; Deposition of Paul Henderson dated July 25, 2006, attached hereto as Exhibit 3 (excerpts) at 24:25-26:11.) 15. Guardsmark security officers like Plaintiff report to supervisors. (Ex. 1

¶ 6, and Ex. B thereto at G000190.)
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16.

During the time that Plaintiff worked at the PCH site, her immediate

supervisors were Senior Supervisors William Whitehead and Lisa Benedict. (See Affidavit of Craig M. Crosby attached hereto as Exhibit 4 ¶ 6.) 17. Senior Supervisors William Whitehead and Lisa Benedict reported to

the Facility Manager, Craig Crosby. (Ex. 4 ¶ 6.) 18. Craig Crosby was the highest-level Guardsmark employee at PCH. (Ex.

4 ¶ 3; Ex. 1 ¶ 13.) Mr. Crosby's responsibilities included but were not limited to serving as the liaison between Guardsmark and the client, PCH and selecting appropriate staff members to fill open supervisory positions. (Ex. 4 ¶ 4; Ex. 1 ¶ 14.) 19. Mr. Crosby reported to Jack Callahan, Guardsmark's Manager in

Charge for Arizona, who was located offsite at Guardsmark's Tempe office. (Ex. 4 ¶ 5; Ex. 1 ¶¶ 1, 2, 13.) 20. In early November 2003, Mr. Crosby interviewed Plaintiff and other

individuals for an open senior supervisor position at the PCH site. (Ex. 4 ¶ 7; Ex. 1 ¶ 15.) 21. During Plaintiff's interview with Mr. Crosby, she told him that "when

she's right, she's right and she doesn't care what anyone thinks or says about it." (Ex. 4 ¶ 8, and Ex. 2 thereto at G000315.) 22. During Plaintiff's November interview she told Mr. Crosby that "if he

didn't trust [her] and wouldn't let [her] do [her] job to not even think about picking [her]." (Ex. 4, and Ex. 1 thereto at G000308.) 23. Plaintiffs remarks to Mr. Crosby during the November interview led Mr.

Crosby to conclude that Plaintiff was not ready to be a senior supervisor at PCH because individuals in the position had to be willing to approach problems from different angles, work with upset parents, and de-escalate potentially volatile and emotional situations. (Ex. 4 ¶ 9.) Mr. Crosby concluded that her attitude and
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demeanor were inconsistent with the duties and responsibilities of the Supervisor position. (Id. ¶ 10.) 24. Mr. Crosby selected Lisa Benedict, a 23-year-old female for the position

instead. Ms. Benedict's hourly wage was $13.50 per hour. (Ex. 4 ¶ 10; Ex. 1 ¶ 15.) 25. On or about December 1, 2003, Plaintiff contacted Manager-in-Charge

Jack Callahan to discuss concerns she had about the performance of Guardsmark managers at the PCH site. At the end of Plaintiff's December 1 discussion with Mr. Callahan, she reported that certain activities at the PCH site made her uncomfortable. She was not specific. Mr. Callahan encouraged Plaintiff to report any policy violations to Leah Plush, the Director of Human Resources for the Tempe office. (Ex. 1 ¶ 16.) 26. The week of December 1, 2003, Mr. Callahan followed up with Mr.

Crosby, informing him that one of the officers at the PCH site had made allegations of potential discriminatory or harassing behavior and requesting that he follow up on the matter. (Ex. 1 ¶ 17; Ex. 4 ¶ 11.) 27. Plaintiff contacted Ms. Plush by telephone on December 1, 2003, and

informed her that Plaintiff intended to file discrimination and harassment charges with the EEOC regarding Craig Crosby's behavior. (Ex. 1 ¶ 18.) During the telephone call with Ms. Plush, Plaintiff alleged that various reprimands she received constituted harassment and that the selection of Lisa Benedict over her for the senior supervisor position constituted discrimination. (Id.) 28. Plaintiff sent Ms. Plush an e-mail dated December 1, 2003, which

described in detail the allegations Plaintiff made during her December 1 telephone call. (Ex. 1 ¶ 19, and Ex. D thereto.) The e-mail stated that Plaintiff believed that Mr. Crosby had terminated and was "terminating employment of security guards based on race and age," Mr. Crosby allegedly had told Senior Supervisor Bill Whitehead that
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Mr. Crosby did not like "color" on the premises; and Mr. Crosby selected a younger non-minority employee to fill the open senior supervisor position. (Id.) 29. On or about December 2, 2003, Ms. Plush researched the allegation in

Plaintiff's December 1 e-mail that Mr. Crosby had terminated employees on the basis of race and age and determined that it was unfounded. (Ex. 1 ¶ 20, and Ex. E thereto.) 30. On or about December 1, 2003, Ms. Plush forwarded a copy of

Plaintiff's December 1 e-mail to Mr. Crosby for review and comment. (Ex. 4 ¶ 12, and Ex. 1 thereto.) 31. On or about December 10, 2003, Mr. Crosby provided a detailed

response to Plaintiff's December 1 e-mail, giving reasonable explanations for the socalled discrimination. (Ex. 4 ¶ 13, and Ex. 2 thereto.) 32. Mr. Crosby explained in his response dated December 10, 2003, that

although he had transferred some employees for purely non-discriminatory reasons, he had never terminated any employees on the basis of age or race and did not have a list of minority or elderly employees to terminate. (Ex. 4 ¶¶ 15, 16.) 33. Mr. Crosby explained in his response dated December 10, 2003, that all

decisions to terminate an employee had to be made by the Guardsmark Human Resources Department. (Ex. 4 ¶ 17.) 34. Mr. Crosby explained in his response dated December 10, 2003, that he

had not been present for the conversation about him not liking "color" on the property." (Ex. 4 ¶¶ 18-19.) Mr. Crosby, an African American, took personal offense to this accusation. (Id. ¶ 18.) 35. Mr. Crosby explained in his response dated December 10, 2003, that he

had selected Ms. Benedict over Plaintiff for the senior supervisor position based on Plaintiff's lack of qualifications for the position. (Ex. 4 ¶ 10.)

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36.

On December 5, 2003, Plaintiff sent Donna Smith an email detailing

additional incidents of harassment and discrimination allegedly perpetrated by Supervisor Larry Martin. (Ex. 1 ¶ 21, and Ex. F thereto.) The e-mail alleged that although Plaintiff only saw Mr. Martin two minutes a week, she had heard him call her a "bitch" on numerous occasions, usually when her back was turned. (Id.) The e-mail alleged that Mr. Martin talked about her to other security officers and supervisors. (Id.) The e-mail further alleged that on December 2, 2003, at 11:45 p.m. in which Mr. Martin allegedly told Senior Supervisor Lisa Benedict and Supervisors LaRonn Taylor and Chris Ryan that Plaintiff was a "bitch" and that she had "another way to make money" as a "legalized prostitute from Thailand." (Id.) 37. Plaintiff's December 5, 2003 e-mail stated that she wanted Mr. Martin

fired because of his alleged misconduct. (Ex. 1, and Ex. F thereto.) 38. Plaintiff admits that she only reported the race-based harassment that

allegedly occurred at PCH to Guardsmark on two occasions: on or about December 1, and December 5, 2003. Plaintiff also admits that she did not report any incidents of race-based harassment (or any harassment) prior to or after these two reports. (Ex. 2 at 103:19-105:13; Deposition of Kesorn Henderson dated July 28, 2006, attached hereto as Exhibit 5 (excerpts) at 205:24-206:22.) 39. Ms. Smith faxed Plaintiff's December 5, 2003 e-mail to Ms. Plush on or

about December 16, 2003. (Ex. 1 ¶ 22.) 40. Ms. Plush commenced an investigation into the allegations in Plaintiff's

December 5, 2003 e-mail on or about December 16, 2003. (Ex. 1 ¶ 23.) 41. Ms. Plush interviewed LaRonn Taylor regarding the allegations in

Plaintiff's December 5, 2003 e-mail on December 16, 2003. Mr. Taylor confirmed that he had heard Mr. Martin refer to Plaintiff as a "bitch" and "a Chinese bitch," and that he had said she could "work as a prostitute in Thailand." (Ex. 1 ¶ 24.)
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42.

Ms. Plush interviewed Christopher Ryan regarding the allegations in

Plaintiff's December 5, 2003 e-mail on December 18, 2003. Mr. Ryan was unable to confirm the conversation related in Plaintiff's December 5 e-mail. (Ex. 1 ¶ 25.) 43. Ms. Plush interviewed Lisa Benedict regarding the allegations in

Plaintiff's December 5, 2003 e-mail on December 18, 2003. Mr. Benedict was unable to confirm the conversation related in Plaintiff's December 5 e-mail. (Ex. 1 ¶ 26.) 44. Ms. Plush interviewed Larry Martin regarding the allegations in

Plaintiff's December 5, 2003 e-mail on or about January 14, 2004. Ms. Plush had Mr. Martin sign a statement indicating he had reviewed the No Slur Policy and Sexual Harassment Policy as "corrective action." (Ex. 1 ¶ 27.) 45. On or about January 14, 2004, Mr. Martin denied the allegations in

Plaintiff's December 5, 2003 e-mail in a written statement. (Ex. 1 ¶ 28.) 46. When Plaintiff made her complaints of harassment and discrimination to

Guardsmark in December 2003, she attempted to give Guardsmark "all of the facts that [it] would need to understand" her complaints. (Ex. 2 at 139:6-141:8.) And in her December 1, 2003 complaint to Guardsmark, she did not mention Larry Martin or any of the alleged harassment. (Id. at 139:6-12.) 47. On December 14, 2003, Plaintiff filed her first charge with the EEOC

(Charge No. 350-2004-00954) alleging race and age discrimination. (Ex. 1 ¶ 29, and Ex. J thereto.) Plaintiff's charge alleged that "since approximately July 2003," she was harassed by her supervisors, Bill Whitehead and Craig Crosby and repeatedly told that she was "on the list to be fired." The charged also alleged that Craig Crosby did not select her for an open supervisor position because of her race and age, instead selecting a candidate who "had a nice voice." (Id.) The charge notes that the last date of the alleged harassment was November 11, 2003. (Id.)

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48.

The EEOC issued a Dismissal and Notice of Rights regarding EEOC

Charge No. 350-2004-00954 dated January 15, 2004, indicating that "based on its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes." (Ex. 1 ¶ 30.) 49. On or about February 3, 2004, Plaintiff filed a second EEOC charge

(EEOC Charge No. 350-2004-01816). The charge alleged that while Plaintiff worked at the St. Joseph's Hospital site, Guardsmark discriminated against her because of her race and sex. (Ex. 1 ¶ 31, and Ex. L thereto.) The charge also alleged that Guardsmark and its client, St. Joseph's Hospital, retaliated against her by not allowing her to use a cell phone in the Hospital and for removing her from her post after she complained directly to the client about the Hospital's cell phone policy. (Id.) The charge alleged that Plaintiff was repeatedly harassed by Chris Bellino, a St. Joseph's Hospital employee, from January 2003 until she was transferred for misconduct in May 2003. (Id.) 50. The EEOC issued a Dismissal and Notice of Rights regarding EEOC

Charge No. 350-2004-01816 dated March 12, 2004, indicating that "based on its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes." (Ex. 1 ¶ 32.) 51. On August 15, 2004, Plaintiff received a letter from Jack Callahan dated

August 6, 2004, informing her that effective September 21, 2004, Guardsmark would no longer be providing security services at the PCH account. (Ex. 1 ¶ 33, and Ex. N thereto.) Mr. Callahan's letter stated that Guardsmark had another position available for Plaintiff and asked that she contact Ms. Plush regarding her new assignment (Id.) 52. On or about September 13, 2004, Ms. Plush offered Plaintiff a shift at

her same rate of pay of $9.50 per hour at the Phelps Dodge building. (Ex. 1 ¶ 36.)

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53.

On or about September 13, 2004, Plaintiff left Ms. Plush a voicemail

message, declining the position at the Phelps Dodge building. (Ex. 1 ¶ 37.) Plaintiff did not accept the Phelps Dodge post because she could not promise to "work for Guardsmark for good", meaning the rest of her life. (Ex. 2 at 81:12-83:10, 101:1620). Guardsmark's regulations prohibit employees from refusing post assignments and such refusal is grounds for termination. (Ex. 1 ¶ 4). Plaintiff was aware of that prohibition when she refused to report to work. (Ex. 2 at 52:7-53:4) 54. On or about May 12, 2005, Plaintiff filed a third EEOC charge alleging

that her termination by Guardsmark was retaliatory and unlawful discrimination based on her race and age (No. 350-2005-03217). (Ex. 1 ¶ 40.) 55. Plaintiff has been employed as a security officer at Cocopah Casino

since June 23, 2005. (Ex. 2 at 8:23-9:7.) Her starting hourly wage was $8.70; on or about her one year anniversary with the company her hourly wage increased to $9.14, the amount she is still paid today. (Id. at 10:19-11:9.) 56. Contrary to the limited allegations in Plaintiff's EEOC charges and her

December complaints to Guardsmark, Plaintiff testified at her deposition that she believes she was subject to race-based harassment that began July 2003, occurred practically "every day," and continued until her last day of her employment at the PCH site. (See, e.g., Ex. 2 at 66:23-70:25.) 57. Plaintiff alleges she is entitled to back pay damages from the date Lisa

Benedict was promoted to the senior supervisor position, on or about November 11, 2003, until Plaintiff's last date of employment, September 21, 2004. (Plaintiff's Supplemental Responses to Defendant's First Set of Interrogatories attached hereto as Exhibit 6.) Plaintiff alleges she is entitled to the difference between her salary, $9.50 per hour, and the salary Lisa Benedict received as senior supervisor, $13.50. (Id.)

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DATED this 25th day of August, 2005. OSBORN MALEDON, P.A.

/s/ Ronda R. Fisk Scott W. Rodgers John L. Blanchard Ronda R. Fisk 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Defendant Guardsmark, LLC

I hereby certify that on August 25, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mishka L. Marshall, Esq. Marshall Law Group, P. C. 777 E. Thomas Road, Suite 210 Phoenix, AZ 85014 [email protected] [email protected] Attorneys for Plaintiff

/s/ Lindsay B. Jensen

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