Free Motion for Partial Summary Judgment - 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. 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. Plaintiff Kesorn Henderson ("Plaintiff") contends that her former employer, Defendant Guardsmark, LLC ("Guardsmark" or the "Company")1 should be held liable for harassment based on race and retaliation allegedly perpetrated against her by other Guardsmark employees. Guardsmark, however, is not responsible. Instead of giving her employer the opportunity to address her complaints by reporting the conduct alleged in her
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Case No. CV 04-0754 PHX JAT

DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Guardsmark, LLC, a Delaware LLC, not Guardsmark, Inc., is the proper party in this case.
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Complaint, Plaintiff waited six months to report any kind of harassment ­ and when she did complain she only told a fraction of the story she now describes in this lawsuit. Plaintiff unreasonably failed to take advantage of Guardsmark's policies, which prohibit harassment. Once Guardsmark had Plaintiff's complaints, it promptly acted and she never complained again. Accordingly, Plaintiff's claims for race-based harassment should be dismissed on summary judgment. Moreover, Plaintiff's allegation that Guardsmark retaliated against her for complaining about alleged discrimination fails as a matter of law. Finally, Plaintiff's back pay damages, assuming she receives any, should be limited the period in which she would have served as a Senior Supervisor at the PCH site. Plaintiff is barred from recovering back pay and front pay damages after September 21, 2004, the date that she voluntarily removed herself from the workforce by turning down a transfer to another Guardsmark post. This Motion is supported by the attached Memorandum of Points and Authorities, the separate Statement of Facts Pursuant to Local Rule 56.1(a), the file in this matter, and such argument as the Court permits. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's Complaint asserts the following claims: Count I ­ Title VII Race Discrimination; Count II ­ Title VII Harassment Based on Race; Count III - 42 U.S.C. § 1981 Race Discrimination; Count IV ­ 42 U.S.C. § 1981 Harassment Based on Race; Count V ­ Retaliation; Count VI ­ Age Discrimination; and Count VII ­ Infliction of Emotional Distress. Through this Motion, Guardsmark seeks to have Counts II, IV, and V dismissed. The Company further seeks an order limiting back pay damages for Claims I-VI to the difference between Plaintiff's actual salary and the salary she would have received had she been promoted to senior supervisor for the

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period from early November 2003, through September 21, 2004. Guardsmark does not seek any further action on Counts I, III, VI, and VII. I. FACTUAL BACKGROUND Plaintiff's Employment History With Guardsmark Guardsmark, one of the world's largest security services firms, contracts with companies to provide security services. (Statement of Facts (hereafter "SOF") ¶ 1.) Guardsmark's offices in Tempe and Phoenix manage accounts for all of Arizona, including the greater Phoenix metropolitan area, Yuma, and Tucson. (SOF ¶ 2.) Guardsmark employed Plaintiff, a Yuma resident, as an unarmed security officer at the Yuma Regional Medical Center from February 2000, through March 16, 2001, when she resigned to take a position with the client. (SOF ¶ 3.) In October 2001, Guardsmark rehired Plaintiff and assigned her to a post at St. Joseph's Hospital in Phoenix. (SOF ¶ 4.) 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"). (SOF ¶ 5.) Plaintiff worked at the PCH site until September 2003, when PCH terminated the Guardsmark contract. (SOF ¶ 6.) Guardsmark's Discrimination and Harassment Policies 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. (SOF ¶ 7.) The Applications contained the full language of various comprehensive policies prohibiting discrimination and harassment, including a Diversity Policy, a No Slur Policy, and a Sexual Harassment Policy Statement (collectively, the "Policies"). (SOF ¶ 8.) Each of the Policies enumerated prohibited behaviors (including the racial harassment claimed by Plaintiff); directed employees who witnessed prohibited behaviors to report the misconduct within 48 hours; and
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listed the names and contact information for the individuals to whom misconduct should be reported. (SOF ¶¶ 9-11.) 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 carried with her at all times. (SOF ¶ 12.) The GORI contains various regulations that she was required to read "often and be thoroughly familiar with," including the full text of the Policies. (SOF ¶ 13.) Reporting Structure for Guardsmark Employees at PCH As detailed in the GORI, Guardsmark security officers like Plaintiff report to supervisors. (SOF ¶ 15.) During the time that Plaintiff worked at the PCH site, her immediate supervisors were Senior Supervisors William Whitehead and Lisa Benedict. (SOF ¶ 16.) These senior supervisors reported to the Facility Manager, Craig Crosby, the highest-level Guardsmark employee at the hospital. (SOF ¶¶ 17, 18.) Mr. Crosby served as the liaison between Guardsmark and the client, PCH. (SOF ¶ 18.) One of Mr. Crosby's duties was selecting appropriate staff members to fill open supervisory positions. (Id.) Mr. Crosby reported to Jack Callahan, Guardsmark's Manager-in-Charge for Arizona, who was located offsite at Guardsmark's Tempe office. (SOF ¶ 19.) Hiring of Senior Supervisor at PCH In November 2003, Mr. Crosby interviewed Plaintiff and other individuals for an open senior supervisor position at the PCH site. (SOF ¶ 20.) During Plaintiff's 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]." (SOF ¶ 22.) She also told him that "when she's right, she's right and she doesn't care what anyone thinks or says about it." (See SOF ¶ 21.) These and other comments surprised Mr. Crosby and led him to conclude that Plaintiff was not ready to be a senior supervisor at PCH. Individuals in
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the position had to be willing to approach problems from different angles, work with upset parents, and de-escalate potentially volatile and emotional situations. (SOF ¶ 23.) Mr. Crosby selected Lisa Benedict, a 23-year-old female, for the position instead. (SOF ¶ 24.) Ms. Benedict's hourly wage was $13.50 per hour. (Id.) Plaintiff's December 1, 2003 Complaints to Guardsmark 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. (SOF ¶ 25.) At the end of their conversation, Plaintiff reported to Mr. Callahan certain activities at the PCH site that made her uncomfortable. (Id.) Mr. Callahan encouraged Plaintiff to report any policy violations to Leah Plush, the Director of Human Resources for the Tempe office. (Id.) That week, 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. (SOF ¶ 26.) Following her conversation with Mr. Callahan, Plaintiff contacted Ms. Plush by telephone and informed her that Plaintiff intended to file discrimination and harassment charges with the EEOC regarding Mr. Crosby's behavior. (SOF ¶ 27.) 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.) Plaintiff followed up this conversation by sending Ms. Plush an e-mail dated December 1, 2003, which described her allegations in greater detail. (SOF ¶ 28.) The three allegations that described potentially unlawful conduct included the following: (1) Mr. Crosby had terminated and was "terminating employment of security guards based on race and age;" (2) Mr. Crosby (an African American) allegedly told senior supervisor Bill Whitehead that Mr. Crosby did not like "color" on the premises; and (3) Mr. Crosby selected a younger non-minority
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employee to fill the open senior supervisor position. (Id.) Ms. Plush immediately investigated the allegations in Plaintiff's December 1 email. On December 2, she researched the allegation that Mr. Crosby had terminated employees on the basis of race and age, and determined that it was unfounded because none of the named employees had been terminated. (SOF ¶ 29.) She also forwarded a copy of Plaintiff's December 1 e-mail to Mr. Crosby. (SOF ¶ 30.) On December 10, 2003, Mr. Crosby provided a detailed response to Plaintiff's December 1 e-mail, giving reasonable explanations for the so-called discrimination. (SOF ¶ 31.) Mr. Crosby explained 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. (SOF ¶ 32.) Indeed, all decisions to terminate an employee had to be made by the Guardsmark Human Resources Department. (SOF ¶ 33.) Mr. Crosby noted that he had never stated he did not like "color on the property" and had not been present for the conversation related in Plaintiff's e-mail. (SOF ¶ 34.) Mr. Crosby further explained that he had selected Ms. Benedict over Plaintiff for the supervisor position based on Plaintiff's lack of qualifications for the position. (SOF ¶ 35.) Plaintiff's December 5, 2003 Complaint to Guardsmark Four days after Plaintiff first complained to Guardsmark, she sent Donna Smith ­ a contact identified in the Guardsmark Sexual Harassment and Diversity Policies ­ an e-mail detailing harassment and discrimination allegedly perpetrated by Supervisor Larry Martin. (SOF ¶ 36.) Plaintiff's December 5 e-mail alleged that although she 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.) She further alleged that Mr. Martin talked about her to other security officers and supervisors. (Id.) Plaintiff identified one incident in particular that occurred on December 2, 2003, at 11:45 p.m.
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in which Mr. Martin allegedly told Lisa Benedict, 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.) Plaintiff concluded in her e-mail that she wanted Mr. Martin fired because of his alleged misconduct. (SOF ¶ 37.) Ms. Smith forwarded the December 5 e-mail to Ms. Plush on December 16, 2003, who immediately investigated. (SOF ¶ 39.) Between December 16-19, 2003, Ms. Plush interviewed all three of the employees identified as witnesses in Plaintiff's December 5 e-mail. (SOF ¶¶ 41-43.) 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." (SOF ¶ 41.) Mr. Ryan and Ms. Benedict, however, were unable to confirm the conversation related in Plaintiff's December 5 email. (SOF ¶¶ 42, 43.) Ms. Plush met with Mr. Martin on January 14, 2004, and he denied all allegations. (SOF ¶¶ 44-45.) Given the conflicting witness reports, the outcome of the investigation was inconclusive. Nevertheless, as "corrective action" Ms. Plush had Mr. Martin sign a statement indicating he had reviewed the No Slur Policy and Sexual Harassment Policy. (Id.) Plaintiff's December 14, 2003 EEOC Charge On December 14, 2003, Plaintiff filed her first EEOC charge (Charge No. 3502004-00954) alleging race and age discrimination. (SOF ¶ 47.) In the December 14 EEOC charge, Plaintiff contended 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." (Id.) She also alleged that Mr. 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.) Plaintiff did not include the

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allegations in her December 5 e-mail in her charge. The EEOC quickly concluded its investigation without a cause determination on January 15, 2004. (SOF ¶ 48.) Plaintiff's February 3, 2004 EEOC Charge Plaintiff filed a second EEOC charge (Charge No. 350-2004-01816) on February 3, 2004, alleging that while she worked at the St. Joseph's Hospital site, Guardsmark discriminated against her because of her race and sex. (SOF ¶ 49.) She 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.) Plaintiff alleged that she 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.) Again, Plaintiff did not relate the allegations in her December 5 e-mail to the EEOC. The EEOC again quickly concluded the investigation without a cause determination on March 12, 2004. (SOF ¶ 50.) Plaintiff's Complaint Plaintiff filed her Complaint against Guardsmark on April 19, 2004. (See Docket (hereafter "Dkt.") 1.) The Complaint alleges race discrimination (Title VII and 42 U.S.C. § 1981); harassment based on race (Title VII and 42 U.S.C. § 1981); retaliation; age discrimination (ADEA); and infliction of emotional distress. (Id.) Although Plaintiff had never filed an EEOC charge relating to the allegations in her December 5 e-mail, she included them in her Complaint. (Id. ¶¶ 2, 29-59.) She also included the allegations in her December 14 EEOC charge. (Id. ¶ 26.) Plaintiff's Complaint did not include the allegations in her February 3 EEOC charge. (Dkt. 1.) The Termination of Guardsmark's Contract With PCH On August 15, 2004, Plaintiff received a letter from Jack Callahan dated August 6, 2004, informing her that effective September 21, 2004, Guardsmark would
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no longer be providing security services at the PCH account. (SOF ¶ 51.) 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.) 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. (SOF ¶ 52.) Plaintiff left Ms. Plush a voicemail message on September 13, 2004, declining the position. (SOF ¶ 53.) Guardsmark policies expressly prohibit employees from refusing post assignments. (SOF ¶ 53.) Plaintiff's refusal to report to the Phelps Dodge assignment was grounds for immediate termination. (Id.) Plaintiff's May 12, 2005 EEOC Charge On 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 (Charge No. 350-2005-03217). (SOF ¶ 54.) The EEOC has not yet completed its investigation and Plaintiff has not obtained a right to sue letter regarding these claims. As such, the issues raised in the May 12 EEOC charge are not at issue in this litigation. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988) (holding that lawsuit filed before a right-to-sue letter is received is subject to dismissal). II. ARGUMENT Summary judgment is proper on Plaintiff's race-based harassment and retaliation claims. Furthermore, the court should limit Plaintiff's claims for back pay and front pay damages to the period in which she would have served as senior supervisor at the PCH site. A. Guardsmark Took Reasonable Care to Prevent Racial Harassment.

Plaintiff's Complaint alleges that she "suffered unlawful harassment because of her race, Asian/Pacific Islander." (Dkt. 1 ¶ 35.) Guardsmark cannot be held
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vicariously liable for its supervisors' alleged harassment of Plaintiff based on her race of Asian/Pacific Islander because the Company took reasonable care to prevent racebased harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). An employer asserting the "reasonable care" defense must satisfy a twopronged test: (1) the defendant-employer must exercise reasonable care to prevent and correct promptly any harassing behavior; and (2) the plaintiff-employee must unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765. Although an employer may always raise the reasonable care defense "[w]hen no tangible employment action is taken," Faragher, 524 U.S. at 807, even "if a tangible employment action occurred, [the employer] may still assert the affirmative defense if the tangible employment action `was unrelated to any harassment or complaint thereof.'" Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir. 2004) (citation omitted). 1. Plaintiff Suffered No Tangible Adverse Employment Action Resulting From Her Harassment Complaints.

The record clearly shows that Guardsmark did not take a tangible employment action against Plaintiff related to her allegations of race-based harassment. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761; see also Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir. 1999). Plaintiff has not alleged that she suffered from an adverse employment action resulting from her complaints of race-based harassment. Indeed, the only adverse employment action at issue in this litigation ­ Guardsmark's selection of Lisa
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Benedict instead of Plaintiff for a senior supervisor position at the Phoenix Children's Hospital site in November 2003 ­ occurred before Plaintiff complained to Guardsmark on December 1 and 5. Thus, the alleged failure to promote Plaintiff in November 2003, was unrelated to reports of racial harassment. Because Plaintiff was not subjected to a tangible employment action, Guardsmark may avail itself of the reasonable care defense to vicarious liability for the alleged harassment of Plaintiff. 2. Guardsmark Exercised Reasonable Care to Prevent and Promptly Correct the Alleged Harassing Behavior.

To satisfy the first element of the two-pronged reasonable care defense, Guardsmark must show that it "exercised reasonable care to prevent and correct promptly any [] harassing behavior." Faragher, 524 U.S. at 807; see also Montero, 192 F.3d at 861. The most critical step an employer can take is to establish "an antiharassment policy with complaint procedure." Faragher, 524 U.S. at 807. Such a policy is not always necessary as a matter of law (id.), but the courts routinely scrutinize whether such a policy existed, whether it provided adequate complaint procedures, and whether the employer adequately ensured that employees were aware of the policy. See Montero, 192 F.3d at 862; see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177-78 (9th Cir. 2003) (satisfactory harassment policy "defined prohibited behavior, identified contact personnel, and established procedures to investigate and resolve any claims"). Guardsmark clearly exercised reasonable care to "prevent...harassment generally." Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 877 (9th Cir. 2001). Long before the alleged harassment occurred, the Company adopted Policies that enumerated which behaviors were prohibited, how to report any harassment, and the potential consequences for substantiated harassment. (SOF ¶¶ 9-11.) The Policies
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also gave Plaintiff clear instructions on when and to whom she should make a report, including additional ways to report if the primary contacts were unavailable. (Id.) Moreover, the record shows that Guardsmark took adequate steps to ensure that Plaintiff was aware of the Policies, including them in the Official Employment Application and the GORI, which Plaintiff carried as part of her uniform. (SOF ¶¶ 12, 13.) Indeed, Plaintiff and her husband both testified that they consulted the GORI in deciding how to report the alleged harassment. (SOF ¶ 14.) In addition to adopting comprehensive policies designed to prevent harassment and informing its employees of the Policies, Guardsmark also "exercised reasonable care to correct promptly...harassing behavior." Montero, 192 F.3d at 862. Plaintiff contacted Jack Callahan, the Manager-in-Charge on December 1, 2003, and suggested that some undefined activities at the PCH site had made her uncomfortable. (SOF ¶ 25.) Mr. Callahan asked Plaintiff to follow up with Ms. Plush, and he promptly followed up with Mr. Crosby, asking him to make sure that all policies were being followed. (SOF ¶ 26.) When Ms. Plush received Plaintiff's two written complaints, she immediately investigated the allegations. (SOF ¶¶ 28-35, 40-45.) The evidence showed that the allegations of racial harassment in the December 1 e-mail simply were unfounded. (SOF ¶ 29.) The evidence was inconclusive regarding the allegations of harassment in the December 5 e-mail, but out of an abundance of caution, Ms. Plush had Mr. Martin, the alleged perpetrator of the racial harassment, review the Policies in her office as a corrective measure. (SOF ¶¶ 41-44.) Mr. Callahan again made sure that Mr. Crosby knew what had been alleged so that he could address the situation with Mr. Crosby (or anyone else) as necessary. (SOF ¶ 26.) Guardsmark's actions successfully establish the first prong of the reasonable care defense.
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3.

Plaintiff Unreasonably Failed to Take Advantage of Preventive or Corrective Opportunities Provided by Guardsmark.

The second prong of the reasonable care defense requires that the "plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm or otherwise." Faragher, 524 U.S. at 807. As noted in Faragher, "[i]f the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided." Id. One court analyzing this language has noted that a plaintiff should not wait for a "hostile working environment to develop when the company has an effective grievance mechanism. If the plaintiff complains promptly, the then-incidental misbehavior can be stymied before it erupts into a hostile environment, and no actionable Title VII violation will have occurred." Indest v. Freeman Decorating, Inc., 164 F.3d 258, 267 (5th Cir. 1999). In this case, Plaintiff "unreasonably failed to take advantage of [the Company's] preventive and corrective opportunities earlier, although she knew of their existence." Montero, 192 F.3d at 863. Plaintiff's Complaint and her deposition testimony confirm that she believes she was subject to race-based harassment that began in July 2003, occurred practically "every day," and continued until her last day of her employment at the PCH site. (Dkt. 1 ¶¶ 23, 30; SOF ¶ 56.) Assuming without conceding that Plaintiff's allegations are true for purposes of this Motion, Plaintiff unreasonably failed to take advantage of Guardsmark's grievance procedures because she never reported the vast majority of the terrible conduct alleged in this case. Plaintiff admits that she knew about Guardsmark's Policies. (SOF ¶¶ 7, 14.) Despite this knowledge, Plaintiff admits that she only reported the alleged race-based
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harassment that occurred at PCH to Guardsmark on two occasions: December 1, 2003, and December 5, 2003. (Id.) Plaintiff admits that she did not report any incidents of race-based harassment (or any harassment) prior to or after these two reports. (SOF ¶ 38.) Thus, Plaintiff's harassment complaints can be divided into two categories: (1) harassment that she either failed to report promptly (occurring long before her December complaints) or failed to report at all (occurring after her December complaints); and (2) harassment that she promptly reported and Guardsmark addressed with a "swift and certain" response. Neither of these categories of alleged harassment is actionable. See Indest, 164 F.3d at 265-67 (holding employer not liable where employee quickly complains and the company promptly responds); Montero, 192 F.3d at 863 (holding employer not liable where employee fails to promptly complain and once the employee complains the employers response is "swift and certain"). The combination of Guardsmark's clear and explicit policies prohibiting harassment, the Company's proactive and prompt enforcement of the Policies, and Plaintiff's untimely reporting of alleged incidents of harassment gives Guardsmark a valid and complete defense against Plaintiff's alleged harassment. Plaintiff's claims for race-based harassment (Counts II and VI) should be dismissed. B. Plaintiff's Section 1981 Retaliation Claim Fails as a Matter of Law Because She Has Failed to Assert a Prima Facie Case for Retaliation.

To establish a prima facie case for retaliation under § 1981, Plaintiff must prove as follows: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the two. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996). Plaintiff fails to state a prima facie claim for retaliation because she has not established the second and third elements of the claim. While she may have engaged in a "protected activity" by
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"opposing unlawful discrimination" (Dkt. 1 ¶ 47), her complaints did not result in an actionable "adverse employment action." Plaintiff's retaliation claim identifies four possible adverse employment actions: (1) "continuously threatening to terminate her employment"; (2) "using abusive language when talking to and about her"; (3) "reprimanding her for conduct which for other, similarly situated employees were not reprimanded"; and (4) "promoting a less qualified, younger non-minority employee to the position of senior supervisor." (Dkt. 1 ¶ 50.) Pursuant to the Ellerth definition of an adverse employment action, included in the discussion of Plaintiff's harassment claims above, only the fourth action ­ Guardsmark's decision to promote Lisa Benedict instead of Plaintiff to the position of Senior Supervisor in November 2003 ­ constitutes an actionable adverse employment action. The timing of Plaintiff's complaints and the promotion defeats any argument that there was a causal connection between them: the promotion occurred one month before Plaintiff complained about discrimination. The Court should enter judgment as a matter of law in favor of Guardsmark on Plaintiff's retaliation claim (Count V). C. Plaintiff's Recovery of Back Pay and Front Pay Damages Is Barred After September 21, 2004, by Her Refusal to Accept a Transfer to Another Guardsmark Post When the PCH Contract Ended.

Plaintiff contends that as a result of Guardsmark's alleged harassment and discriminatory practices, she is entitled to various back pay damages starting from the time Ms. Benedict was promoted to senior supervisor until the present. (SOF ¶ 57.) Plaintiff also apparently seeks various front pay damages for the time period it will take her to obtain with her current employer the salary she would have had as a senior supervisor with Guardsmark. Plaintiff bases her damage calculations on flawed reasoning.

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As a threshold matter, the pay Plaintiff would have received beyond her last date of employment at Guardsmark ­ which she refers to as her date of "termination" ­ are not at issue in this case. The EEOC has not yet issued a right-to-sue letter on her May 2005 EEOC Charge, in which she asserts her so-called "termination" claim. "To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim." Lyons v. England, 307 F.3d 1092, 1103 -04 (9th Cir. 2002). This includes obtaining an EEOC right-to-sue letter, without which a plaintiff's claim is subject to dismissal. See Karim-Panahi, 839 F.2d at 626. Moreover, even if Plaintiff's termination damages were at issue in this case, her refusal to accept Guardsmark's offer of a transfer to the Phelps Dodge post bars recovery of any back pay or front pay damages after the date of refusal. The relevant remedies for a violation of Title VII "include reinstatement and awards of back pay and front pay. An award of back pay is appropriate to advance `Congress' intent to make persons whole for injuries suffered through past discrimination.'" Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir. 2000) (citing Loeffler v. Frank, 486 U.S. 549, 558 (1988)). Title VII, however, "imposes upon plaintiffs seeking back pay a duty to mitigate damages by seeking alternative employment with `reasonable diligence.'" Id. (citing 42 U.S.C. § 2000e-5(g)(1) (1994)). When a plaintiff's diminished income after a particular date results from plaintiff's voluntary decision to remove herself from the workforce, she does not suffer "an injury for which she would need to be `made whole.'" Id. at 1021. Thus, "an award of back pay or front pay is plainly unwarranted under 42 U.S.C. § 2000e-5(g)(1)." Id. Although the scope of available relief under § 1981, Title VII, and the ADEA differs, the reasoning behind barring back pay and front pay damages for voluntarily removing oneself from

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the workforce would apply equally to each. See, e.g., 42 U.S.C. § 1981, 42 U.S.C. § 2000e-5(g), and 29 U.S.C. § 621 et seq. Plaintiff failed to mitigate her damages when she unreasonably and improperly refused the Phelps Dodge post. Plaintiff freely admits that Guardsmark assigned her to Phelps Dodge as Guardsmark's contract with PCH was drawing to a close. (SOF ¶¶ 52, 53.) Plaintiff understood that such refusal was against Guardsmark's regulations and grounds for immediate termination. (SOF ¶ 53.) Plaintiff also freely admits that she did not accept the Phelps Dodge post because she could not promise to "work for Guardsmark for good." (SOF ¶ 53) Notwithstanding Plaintiff's incredulous reason for turning down the Phelps Dodge position, she does not claim she declined the new post out of fear of continued harassment or discrimination. Indeed, at the new post, Plaintiff would have been under a different supervisor with different coworkers. Rather than accept the transfer, however, Plaintiff voluntarily removed herself from the workforce. Plaintiff's voluntary removal from the workforce bars recovery for back pay and front pay damages from September 21, 2004 (her last date of employment) forward. Thus, the time period for which Plaintiff may recover damages for failure to be promoted to a Senior Supervisor position at the PCH site is limited from November 2003, until her last date of employment in September 2004. The amount of Plaintiff's damages is limited to the difference between the salary Plaintiff received as a security officer and the salary that she would have received as a senior supervisor. Plaintiff's total back pay damages should be limited to $7,360. (See, e.g., SOF ¶ 57.) III. CONCLUSION For all of the foregoing reasons, Guardsmark is entitled to summary judgment on Plaintiff's harassment and retaliation claims. Moreover, Plaintiff's back pay and front pay damages are barred following her voluntary removal from the workforce.
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Accordingly, Plaintiffs seek the following relief in this motion: 1. An order dismissing Counts II (Title VII Harassment Based on Race), IV (42 U.S.C. § 1981 Harassment Based on Race), and V (42 U.S.C. § 1981 Retaliation); and 2. An order declaring that Plaintiff's back pay damages are limited to the difference between the salary she received as a security officer and the salary she would have received as a senior supervisor for the period from November 2003, until September 21, 2004, the date which

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Plaintiff voluntarily removed herself from the workforce. Plaintiff's request for back pay and front pay damages are barred after September 21, 2004. The total amount back pay damages Plaintiff may receive is $7,360. RESPECTFULLY SUBMITTED this 25th day of August, 2006. 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

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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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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