Free Statement - District Court of Arizona - Arizona

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MARY JO O'NEILL # 005294 C. EMANUEL SMITH KATHERINE J. KRUSE # 019127 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, Arizona 85012 Telephone: (602) 640-5029 E-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, vs. Connecticut General Life Insurance Company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIV 04-0627-PHX-JAT PLAINTIFF EEOC'S STATEMENT OF FACTS IN SUPPORT OF ITS RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff EEOC submits this Statement of Facts in Support of its Response to Defendants' M otion for Summary Judgment. STATEMENTS OF FACT REGARDING AFFIRMATIVE DEFENSE TO PUNITIVE DAMAGES 1. Tiffanie Dillard first became employed with Connecticut General Life Insurance Company ("CGLIC") in 1999, and took a position as Human Resources Director for the Phoenix Services Center in August 2002. 11:24-12:14). 2. Dillard has no knowledge of the structure of the Phoenix Service Center in 2001. (Ex. 9, Dillard Dep. at 17:9-12). 3. Dillard's previous position as Regional Training Director did not provide her with direct knowledge of whether particular training sessions were actually conducted at the Phoenix Service Center. (Ex. 9, Dillard Dep. at 137:12-138:18). (Ex. 9, Dillard Dep. at 6:6-7,

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4.

Dillard was also unable to estimate the number of EEO briefings and updates at the Phoenix Service Center in 2001, or for any other period between 1999 and 2002. (Ex. 9, Dillard Dep. at 24:13-25:15).

5.

Despite having worked at the Phoenix Service Center in 2002, Dillard could not remember any EEO training there from 2002 or other specific dates or times. (Ex. 9, Dillard Dep. at 29:5-11, 30:5-8).

6.

Dillard defines training as anything that allows you to gain knowledge, including receiving answers to questions on EEO topics and information from sources unaffiliated with CGLIC. (Ex. 9, Dillard Dep. at 35:24-36:13, 55:8-21).

7.

As of 2005, formal EEO training for non-manager employees at the Phoenix Service Center is limited to one hour of instructor-led training and one hour of web-based training. (Ex. 9, Dillard Dep. at 56:19-57:10).

8. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \\ 10. 9.

Dillard believes nine other means, as of 2005, should be considered training for all employees at the Phoenix Service Center: the EEO statement in CGLIC's application, the EEO policy statement in the employee handbook, the new hire packet, the statement posted at CGLIC's facilities, the statement available on the Internet, wallet-sized cards concerning ethical decision-making, the CEO's EEO reaffirmation statement, the specific performance objective evaluating the fair treatment of employees, and the "five-in-one" postings in the lunchroom and near the Human Resources Department. (Ex. 9, Dillard Dep. At 56:9-58:8, 62:19-20, 129:11-12). Sandra Gasche, a non-management staffing consultant, does not recall any training or conversations about EEO at CGLIC, and did not know whether pregnancy discrimination is sex discrimination or disability discrimination. (Ex. 10, Gasche Dep. at 130:23-131:8, 135:4-12). The EEO statement on CGLIC's application form filled out by Carmen Santa Cruz never mentions discrimination on the basis of pregnancy, nor does it provide information about how an applicant may pursue any complaint concerning discrimination. (Def.'s Ex. 8 at D0004).

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11.

The EEO policy contained in the employee handbook in use in 2001 (Ex. 11, Heather Casey Giles Dep. at 119:14-120:4) never refers to discrimination on the basis of pregnancy. (Ex. 5).

12.

Cheryl Wroten, a manager, had never seen the EEO policy page of the employee handbook nor any of the rest of the employee handbook prior to her deposition, and is unaware of how she became familiar with CGLIC's EEO policy. (Ex. 12, Wroten Dep. at 73:1-15, 73:21 -74:4, 74:15-20).

13.

Gasche does not recall having seen the employee handbook effective in November 2001 or otherwise being asked to review the EEO policy at CGLIC. (Ex. 10, Gasche Dep. at 128:15-22, 143:4-5).

14.

According to the "First Day Checklist," the only EEO documents in the packet of information given to newly hired employees are the employee handbook and the affirmative action form. (Ex. 2).

15.

The "Welcome to Cigna HealthCare" W elcome Package never refers to equal employment opportunity other than to state that Defendant is committed to it. (Def.'s Ex. 6).

16.

As of 2005, the Equal Employment Opportunity statement available on the "Cigna Central--Culture" website (Ex. 9, Dillard Dep. at 68:12-69:7, 128:12-22) does not inform employees that pregnancy discrimination is illegal or that pregnancy is a characteristic protected by law, (Ex. 1), and other internet materials merely

discourage interviewers from asking questions relating to the candidate's "plans to have children in the future" or "capacity to reproduce." (Ex. 6). 17. The wallet-sized card provided to employees concerning ethical decision-making, entitled "Doing the Right Thing," (Ex. 9, Dillard Dep. at 68:12-69:7, 129:11-21) never refers to equal employment opportunity nor pregnancy discrimination, but deals with general ethical dilemmas. (Ex. 8). 18. The only CEO reaffirmation statement produced by Defendant is dated January 3, 2005. (Ex. 7). \\ 3 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 3 of 16

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19.

The 2005 CEO reaffirmation statement never refers to pregnancy discrimination. (Ex. 7).

20.

Managers and supervisors were not held accountable for supporting and achieving EEO objectives, other than by receiving information concerning affirmative action goals and the previous year's affirmative action results from Heather Casey, Senior Human Resources Consultant. (Ex. 11, Casey Giles Dep. at 122:23-123:25).

21.

The sample employee performance appraisal included in the Welcome Package for new hires does not include a "People Expectation," "Manager Expectation," or other equal treatment component. (Def.'s Ex. 6 at EEOC-CGLIC-0106).

22.

As of 2005, Dillard believes that managers receive training regarding equal employment opportunity issues on occasions in addition to the training provided to non-managers: a two-day course called "Civil Treatment," a one-day training session on interviewing if the manager is participating in hiring that year, and responses to specific questions (known as "just in time" training). 47:11-48:9, 53:8-54:19, 55:8-56:8). (Ex. 9, Dillard Dep. at

23.

Casey never received formal training on EEO at CGLIC. (Ex. 11, Casey Giles Dep. at 122:14-18).

24.

Wroten, a manager, has only had formal training regarding EEO on one occasion, but does not recall the length or content of her EEO training. (Ex. 12, Wroten Dep. at 75:14-76:7, 76:18-22).

25.

The course objectives for "Civil Treatment" manager training do not mention specific forms of discrimination, but refer only generally to achieving "fair and equal treatment in the workplace." (Ex. 9, Dillard Dep. at 128:7-9, 68:12-69:7; Ex. 3).

26.

The Phoenix Service Center allegedly tracks the attendance of managers at the Civil Treatment Course, (Ex. 9, Dillard Dep. at 49:23-25), but CGLIC failed to produce any such records for any management employees, including Wroten.

27.

Manager training entitled "Building an Inclusive Environment" (Ex. 9, Dillard Dep. at 68:12-69:7, 129:2-6) discusses diversity generally without ever mentioning pregnancy discrimination, and limits its discussion of whether an individual has 4

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children or not to a matter of membership in a "social identity group." (Ex. 4). STATEMENTS OF FACT REGARDING BACK PAY The job with Security Trust was temporary and Santa Cruz considered it an internship of sorts, albeit a paid one. (Ex. 14, Santa Cruz Dep. at 195:23-25). While employed at Security Trust, Santa Cruz observed a variety of legal and ethical problems that she referred to in her deposition as "legal problems," "issues," "the situation," and "the environment there." (Ex. 15, Santa Cruz Aff. ¶ 15; Ex. 14, Santa Cruz Dep. at 198:23-199:2, 266:7-8, 280:21-281:5, 283:23-284:1). Santa Cruz observed client files containing confidential information stored in disarray, including files haphazardly left in boxes in hallways and the mail room without regard for preserving client confidentiality. Santa Cruz believed that Security Trust's maintenance of client information was contrary to industry requirements for the handling of such information. (Ex. 15, Santa Cruz Aff. ¶¶ 3-4). Santa Cruz observed that Security Trust had fallen far behind in entering client information into its computer system. Santa Cruz believed that this failure to timely enter client information into the Security Trust computer system negatively affected the management of client funds. (Ex. 15, Santa Cruz Aff. ¶¶ 5-6). Santa Cruz observed supervisory personnel at Security Trust frequently engaged in bickering and conflict to the exclusion of performing their management duties. Santa Cruz believed that this behavior contributed to a lack of oversight and negatively affected compliance with industry requirements. (Ex. 15, Santa Cruz Aff. ¶¶ 7-8). Santa Cruz was told by a Security Trust employee from a different department that Security Trust was engaging in a practice known as "night trading." Based on her understanding of securities laws at that time, Santa Cruz believed that Security Trust was impermissibly engaged in night trading. (Ex. 15, Santa Cruz Aff. ¶¶ 9-10). At the time of her employment with Security Trust, Santa Cruz was a registered member of the National Associate of Securities Dealers (NASD) and possessed Series 6, 7, and 65 "licenses." (Ex. 15, Santa Cruz Aff. ¶ 11).

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35.

Santa Cruz believed that these licenses were concerned with the ethical and lawful handling of confidential client information, among other matters, and that continued employment at Security Trust would jeopardize her Series 6, 7, and 65 licenses. (Ex. 15, Santa Cruz Aff. ¶¶ 12-13).

36.

Santa Cruz believed that she had no choice but to end her employment with Security Trust in February 2002 or risk losing her Series 6, 7, and 65 licenses. (Ex. 15, Santa Cruz Aff. ¶ 14).

Numbers 37-39 unused. STATEMENTS OF FACT REGARDING WITHDRAWAL OF THE JOB OFFER 40. Robert Jarvis is employed by CGLIC as the Vice-President of Service Operations in north Phoenix and is the current site lead at the Phoenix Service Center. (Ex. 13, Fed. R. Civ. P. 30(b)(6) Jarvis Dep. at 6:13-21; Ex. 12, Wroten Dep. at 58:23-59:5). 41. In 2001, CGLIC was a wholly-owned subsidiary of Cigna Corporation ("CIGNA"). (Ex. 13, Fed. R. Civ. P. 30(b)(6) Jarvis Dep. at 97:24-98:13).

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43. 42. The Phoenix Service Center was part of CGLIC in 2001. The Phoenix Service Center is a customer service telephone call center that employs customer service associates. (Ex. 13, Fed. R. Civ. P. 30(b)(6) Jarvis Dep. at 81:9-12, 84:5-12, 97:13-17, 119:17120:5; Ex. 11, Casey Giles Dep. at 21:18-21). CGLIC's Phoenix Service Center regularly does business utilizing the name "CIGNA", as shown by its orientation material and other internal documents. (See, e.g., Ex. 5, excerpt from document entitled "You and CIGNA, Employee Programs Services and Facilities," the employee handbook CIGNA gave to new employees at the Phoenix Service Center in November, 2001; Ex. 11, Casey Giles Dep. at 119:14120:4; Def.'s Ex. 6, orientation material for the Phoenix Service Center (contains: title, "Welcome to the CIGNA HealthCare Phoenix Customer Service Call Center", p. 1; subsection entitled, "Who CIGNA Is"; and "The CIGNA Vision", p. 1); Def.'s Ex. 8, Employment Tracking Form for Carmen Santa Cruz (contains the "CIGNA" name and logo, p. 1, upper left-hand corner); Def.'s Ex. 9, Flexible Time Off Policy for the Phoenix Service Center (contains "Introduction" referring to the policies as 6 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 6 of 16

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those of CIGNA HealthCare, p. 1, and footnote stating "CIGNA" refers to CIGNA Corporation and/or any of its subsidiaries, p. 1)). The employees of CGLIC's Phoenix Service Center generally refer to their employer as "CIGNA." (Ex. 9, Dillard Dep. at 6:8-13, 7:2-4; Ex. 12, Wroten Dep. at 4:8-16; Ex. 10, Gasche Dep. at 12:18-13:2; Ex. 11, Casey Giles Dep. at 88:2-11). When Heather Casey Giles worked at the Phoenix Service Center, she was employed by CGLIC as a Senior Human Resources Consultant. She was an employee at the time of the call to Santa Cruz in 2001. She was known as Heather Casey, her maiden name, at that time. (Ex. 11, Casey Giles Dep. at 5:8-21, 10:6-14, 14:8-14, 131:1-7; Ex. 13, Fed. R. Civ. P. 30(b)(6) Jarvis Dep. at 97:4-12, 165:18-20). Wroten was a CGLIC employee at the Phoenix Service Center. Wroten became a customer service manager. (Ex. 12, Wroten Dep. at 10:4-14). Gasche's job title while working for CGLIC through Dependable Staffing was staffing specialist, recruiter, or staffing consultant. Whether she was paid by Dependable Staffing or CGLIC, Gasche always staffed for CIGNA and CGLIC. (Ex. 10, Gasche Dep. at 11:8-12, 12:24-13:2). Gasche took directions from CIGNA management, performed work for CIGNA, worked at a CIGNA location (including the Phoenix Service Center at 19th Avenue and Rose Garden), and staffed for CIGNA. (Ex. 10, Gasche Dep. at 13:3-20, 31:2032:1). Gasche's "staffing" duties included: sourcing (finding) candidates, talking to applicants, testing, conducting telephone screens as needed, conducting in-face interviews when applicable, and making job offers. (Ex. 10, Gasche Dep. at 23:2424:8). Even while working for CGLIC through Dependable Staffing, Gasche had the authority to make job offer on behalf of CGLIC. Gasche was acting on behalf of CGLIC in conveying an offer of employment to Santa Cruz in November 2001. (Ex. 13, Fed. R. Civ. P. 30(b)(6) Jarvis Dep. at 165:23-166:5, 167:2-4; Ex. 10, Gasche Dep. at 32:2-8). 7 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 7 of 16

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51.

In November 2001, Santa Cruz was approximately fourteen to fifteen weeks pregnant with her second child. Her pregnancy was not yet visible. (Santa Cruz. Dep. at 80:20-81:1, 85:5-14; Ex. 15, Santa Cruz Aff. at ¶ 16).

52.

In November 2001, Santa Cruz was job searching because she had been notified by her employer, Charles Schwab, that she was being laid off as part of a massive layoff. (Santa Cruz. Dep. at 33:24-34:4, 34:24-35:3).

53.

Santa Cruz was interviewed at CGLIC's Phoenix Service Center on November 16, 2001 by Wroten. (Ex. 10, Gasche Dep. at 63:12-14; Ex. 14, Santa Cruz Dep. at 193:12-14).

54.

Wroten does not remember the interview, but took notes regarding the interview on the "Interview Results and Candidate Evaluation" form. (Ex. 12, Wroten Dep. at 16:18- 17:15; Def.'s Ex. 7, "Interview Results and Candidate Evaluation" form).

55. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57. 56.

The information contained on page EEOC-CGLIC-0060 of the "Interview Results and Candidate Evaluation" was read to Santa Cruz during her interview. That information is as follows: CIGNA has a very rigid attendance policy and you need 6 months to accrue before taking vacation time. During the first 90 days of employment, one day missed is a verbal warning, two days missed is a written warning and three days missed is probation. Should you miss 4 days in the first 90 days you will be terminated for unsatisfactory performance. (Ex. 14, Santa Cruz Dep. at 82:9-16, 105:10-21; Ex. 12, Wroten Dep. at 19:19-20:8, 26:4-7; Def.'s Ex. 7, "Interview Results and Candidate Evaluation at EEOC-CGLIC0060). The portion of CIGNA's Flexible Time Off Policy entitled "New Employees Progressive Disciplinary Process" stated the attendance policy for new employees at the Phoenix Service Center while Casey worked there as a human resources consultant. (Ex. 11, Casey Giles Dep. at 18:18-19:1, 27:12-16). The New Employees Progressive Disciplinary Process provides for progressive discipline of new employees for taking unplanned absences, meaning any absences during the training period of the first ninety days of employment. (Ex. 11, Casey Giles Dep. at 19:8-21; Def.'s Ex. 9, Flexible Time Off Policy, at EEOC-CGLIC-0055, 8

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section entitled "New Employees Progressive Disciplinary Process"). Per the New Employees Progressive Disciplinary Process, after the first absence, a new employee receives verbal counseling, which is documented in the manager's employee file. (Ex. 12, Wroten Dep. at 52:10-17; Ex. 11, Casey Giles Dep. at 19:2220:3; Def.'s Ex. 9 at EEOC-CGLIC-0055, section entitled "New Employees Progressive Disciplinary Process"). Pursuant to the New Employees Progressive Disciplinary Process, a new employee's fourth unplanned absence in the first ninety days requires a "Termination Review." The termination review is a discussion among the trainer, a human resources

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employee, and one of the directors to determine whether the trainer should terminate the employee. Termination after the fourth unplanned absence is discretionary. (Ex. 11, Casey Giles Dep. at 23:11-24; Def.'s Ex. 9 at EEOC-CGLIC-0055, section entitled "New Employees Progressive Disciplinary Process"). Two extraordinary situations in which absences did not result in termination occurred when the absences were due to a death in the family or to a serious accident of a family member. (Ex. 11, Casey Giles Dep. at 24:16-26:11). The "Interview Results and Candidate Evaluation" at EEOC-CGLIC-0060 directed the reader to pose this question: "What concerns do you have about such a rigid attendance policy?" Next to this question on the form used for the interview of Santa Cruz, Wroten wrote, "No." (Def.'s Ex. 7, "Interview Results and Candidate

Evaluation" at EEOC-CGLIC-0060). Santa Cruz was informed that the class required 100% attendance, and she had no concerns about it. She did not believe her pregnancy would interfere with the ninetyday attendance policy, and had no concerns at the time about her ability to meet the policy. (Ex. 14, Santa Cruz Dep. at 79:15-25, 87:5-10). Each of the three times Santa Cruz was asked whether she had any problems with or concerns about the attendance policy, Santa Cruz stated no. She stated that she had no problems with ninety-day mandatory attendance, and she never expressed any concerns. (Ex. 14, Santa Cruz Dep. at 78:24-79:11, 105:22-106:1, 106:7-15; Ex. 12,

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Wroten Dep. at 20:12-14). According to the final page (EEOC-CGLIC-0062) of the "Interview Results and Candidate Evaluation," Wroten recommended Santa Cruz for hire. (Ex. 12, Wroten Dep. at 18:11-15; Def.'s Ex. 7, "Interview Results and Candidate Evaluation" at EEOC-CGLIC-0062). Gasche remembers making Santa Cruz an offer of employment. She called and left a voicemail. (Ex. 10, Gasche Dep. at 47:7-13, 70:9-71:10). When Santa Cruz returned to her house from the interview on November 16, 2001, there was a message on her answering machine stating that CIGNA was extending her an offer for the Customer Service Associate job and that they wanted her to contact CIGNA as soon as possible. (Ex. 14, Santa Cruz Dep. at 87:13-24, 109:6-12, 121:317). Santa Cruz was happy that she was offered the position and that it happened so quickly. (Ex. 14, Santa Cruz Dep. at 87:25-88:9). Santa Cruz called back the person who left her the offer within five to ten minutes of receiving the message. (Ex. 14, Santa Cruz Dep. at 109:16-17, 147:19-24). Santa Cruz recalls that during her first phone call, she was told, "'I'm very happy to inform you that we want to offer you or extend to you . . . the position." (Ex. 14, Santa Cruz Dep. at 89:16-20, 127:4-20). During the first phone call, the CIGNA representative offered Santa Cruz the position, stated that there were two starting dates, December 10 and December 17, and added that CIGNA wanted Santa Cruz to start as soon as possible, on December 10th. Santa Cruz stated that she had a doctor's appointment on that date and asked to start on the 17th instead. (Ex. 14, Santa Cruz Dep. at 89:16-20, 128:24- 129:7, 130:19-131:7). Gasche does not specifically recall the dates of two training sessions, however, she said there were frequently several dates to start training and she would try to fill the first training session first. It is possible she told Santa Cruz that she wanted Santa Cruz to start on the 10th rather than the 17th so that she could fill the first class. (Ex. 10, Gasche Dep. at 74:6-23).

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72.

During the first phone call, Santa Cruz stated that she had a doctor's appointment on December 10 th . She was asked to reschedule it. She stated that she would call her doctor and try to reschedule it, and then call back. (Ex. 14, Santa Cruz Dep. at 125:13 - 23, 130:3-10, 130:19-131:7, 132:12-17).

73.

When Santa Cruz called CIGNA for the second time, she spoke with the same person, Gasche. Santa Cruz told Gasche that she was unable to reschedule the doctor's appointment. (Ex. 14, Santa Cruz Dep. at 136:14-17, 137:20-25, 139:21-140:4).

74. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \\ 79. 78. 77. 76. 75.

Santa Cruz also asked again if she could start on the second date, December 17 th . Gasche did not accept that proposal or even respond to it. (Ex. 14, Santa Cruz Dep. at 139:3- 12, 143:14-23). Instead, Gasche proceeded to ask Santa Cruz what type of doctor's appointment she had, and why it could not be rescheduled. The CIGNA representative also began inquiring about what type of a doctor Santa Cruz was seeing and/or for what Santa Cruz was being seen. (Ex. 14, Santa Cruz Dep. at 138:1-12, 139:21-140:4, 143:1423). At first, Santa Cruz told Gasche that she was seeing a "specialist." However, Gasche continued asking Santa Cruz more probing questions about whether there was something wrong with her. In response, Santa Cruz told the CIGNA representative that she was pregnant. (Ex. 14, Santa Cruz Dep. at 139:21-140:7, 140:14-141:5). After leaning that Santa Cruz was pregnant, Gasche's attitude totally changed. She became agitated, as shown by her tone of voice and her impatience. (Ex. 14, Santa Cruz Dep. at 140:14-141:5, 142:6-143:4). Gasche then began asking whether Santa Cruz had informed Wroten, the interviewing manager, that she was pregnant. Santa Cruz stated that she had not. (Ex. 14, Santa Cruz Dep. at 138:1-12, 140:14-141:5, 142:6-18). Gasche also asked whether Santa Cruz was familiar with the ninety-day attendance policy, whether Wroten had reviewed it with her, and whether Santa Cruz understood it. (Ex. 14, Santa Cruz Dep. at 138:1-12, 140:14-141:5).

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80.

Santa Cruz told Gasche that she understood the ninety-day attendance policy, that Wroten had explained it to her in detail, and that she did not think her pregnancy would hinder her ability to satisfy the attendance requirements. (Ex. 14, Santa Cruz Dep. at 139:3-12, 140:14-141:8, 141:12-14).

81.

During the second conversation, Gasche proceeded to set out the ninety-day attendance policy in detail, including the steps in the progressive discipline process. (Ex. 14, Santa Cruz Dep. at 138:1-12, 138:16-17, 140:14-141:5).

82. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 88. 87. 86. 85. 84. 83.

Gasche does not recall Santa Cruz raising any concerns about attendance during the telephone call. Santa Cruz likewise states that she did not express any concerns about the ninety-day policy. (Ex. 10, Gasche Dep. at 77:25-78:12; Ex. 14, Santa Cruz Dep. at 141:12-14). Gasche remembers offering Santa Cruz a position. Gasche said Santa Cruz made some kind of a comment about doctor's appointment, and stated that she was expecting. Gasche recalls reiterating the strict attendance policy. (Ex. 10, Gasche Dep. at 72:1-17). Gasche reiterated the attendance policy to Santa Cruz because if someone seemed to raise concerns about meeting the training requirements it's in everyone's best interest to make sure they know what they're coming into if they accept the position. (Ex. 10, Gasche Dep. at 77:3-13). Gasche reiterated the attendance policy because Santa Cruz mentioned a doctor's appointment. (Ex. 10, Gasche Dep. at 78:14-79:8). Gasche did not indicate that the offer was still open to Santa Cruz at any point after learning that Santa Cruz was pregnant. (Ex. 14, Santa Cruz Dep. at 294:10-19). The second phone call ended with Gasche stating that she would have to talk with Human Resources and that she would call Santa Cruz back. Gasche did not state why she needed to speak with Human Resources. (Ex. 14, Santa Cruz Dep. at 138:18-24, 141:15-17, 146:20-24). Gasche informed Casey, the Director of Human Resources, that she learned Santa Cruz was pregnant when she called to offer Santa Cruz the position. (Ex. 11, Casey

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1 2 3 4 5 6 7 91. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 95. 94. 93. 92. 90. 89.

Giles Dep. at 32:18-24). Gasche told Casey that she explained CIGNA's new-employee attendance policy to Santa Cruz after learning that Santa Cruz was pregnant. (Ex. 11, Casey Giles Dep. at 30:3- 12). According to Casey, Gasche asked Casey to make a joint telephone call back to Santa Cruz to further clarify CIGNA's attendance policy to make sure that Santa Cruz clearly understood the policy. (Ex. 11, Casey Giles Dep. at 33:14-34:8). Gasche testified that she wanted Casey to explain the attendance policy and find out if Santa Cruz wanted the position. Gasche also testified that Santa Cruz already had declined the position, but she wanted to give Santa Cruz another opportunity to accept. Gasche then testified that she wanted to make sure that Santa Cruz

understood the policy so she could make the best choice for herself about whether to take the job. (Ex. 10, Gasche Dep. at 89:16-90:3, 90:7-22, 92:15-19). Gasche proceeded to testify that she assumed Santa Cruz had concerns about attendance because Santa Cruz mentioned her doctor's appointment, and wanted Santa Cruz to understand the policy so that she would know what she was accepting, if she accepted the position. Later, Gasche testified that she wanted Casey to have a conversation with Santa Cruz because she, Gasche, had doubts about whether Santa Cruz needed clarification about attendance. (Ex. 10, Gasche Dep. at 93:16-94:7, 106:2-11). Gasche had the authority to accept someone declining an offer without Human Resources, she just didn't have the authority to rescind an offer. (Ex. 10, Gasche Dep. at 158:5-14). Gasche did not have authority to withdraw an offer of employment; only Human Resources could rescind an offer. Staffing could never rescind an offer. (Ex. 10, Gasche Dep. at 157:14-25). Gasche and Casey jointly telephoned Santa Cruz about 15 to 20 minutes after Gasche spoke to Casey about her conversations with Santa Cruz. (Ex. 11, Casey Giles Dep. at 36:15-23, 37:20-24).

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96.

The CIGNA representatives did not indicate that the job offer was still open, or encourage her to accept it. (Ex. 14, Santa Cruz Dep. at 161:17-162:1; 294:10-19).

97.

The CIGNA representatives did not offer Santa Cruz the second start date of December 17, 2001, ever. (Ex. 14, Santa Cruz Dep. at 154:24-155:3, 182:15-19).

98.

Casey told Santa Cruz during this conversation that Gasche had informed Casey that Santa Cruz was pregnant. (Ex. 11, Casey Giles Dep. at 39:10-12).

99.

When Casey contacted Santa Cruz with Gasche, Casey reviewed the ninety-day new employee attendance policy with Santa Cruz, and explained the progressive discipline steps ­ that a first absence would be a verbal warning, a second absence would be the

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 104. 103. 102. 101. 100.

next step, and so on. (Ex. 11, Casey Giles Dep. at 38:20-25). During the third phone call, the CIGNA representative talked about the ninety day policy in a very detailed manner, including the four steps of the progressive discipline process, the verbal warning, the written warning, discipline, and dismissal. The CIGNA representative asked whether Santa Cruz had been informed about the attendance policy and understood it. (Ex. 14, Santa Cruz Dep. at 151:13-23). Santa Cruz told the CIGNA representative that she understood the ninety-day attendance policy, quite clearly, and that she did not foresee being late or missing work because of her pregnancy. (Ex. 14, Santa Cruz Dep. at 152:3-7). Santa Cruz told the CIGNA representative that she could schedule future doctor's appointments on her own personal time. The CIGNA representative responded by restating the ninety-day policy. 24). During the third conversation, the CIGNA representative told Santa Cruz that she did not think it would be good for Santa Cruz to start her career by being reprimanded or terminated. The CIGNA representative also told Santa Cruz that Santa Cruz would not want to start her career with CIGNA by missing time or being late. (Ex. 14, Santa Cruz Dep. at 151:13-23; 181:4-18). Casey did not inform Santa Cruz during this conversation that her pregnancy was not an issue. Casey did not tell Santa Cruz that CIGNA was happy to hire pregnant (Ex. 14, Santa Cruz Dep. at 205:21-206:9, 206:19-

14 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 14 of 16

1 2 3 4 5 6 7 8 106. 105.

employees and that she was welcome to come there. (Ex. 11, Casey Giles Dep. at 39:22-25, 47:2-5). Santa Cruz recalls asking whether there was anything else that could be done. The CIGNA representative told Santa Cruz to call back after the baby was born. (Ex. 14, Santa Cruz Dep. at 153:3-18, 157:16-25, 158:1-10, 164:6-14, 164:20-25, 182:2-14). Gasche even acknowledges that she may have suggested to Santa Cruz that she recontact CIGNA after the baby was born, although she claims she would have made that statement only after Santa Cruz declined the job. (Ex. 10, Gasche Dep. at 83:618).

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

107.

Casey might have told Santa Cruz to reapply in a year, although she likewise claims she would have made the statement after Santa Cruz declined the job. (Ex. 11, Casey Giles Dep. at 50:12-18).

108.

Santa Cruz never told the CIGNA representatives that she did not want the job. Santa Cruz did not indicate that she was uninterested in the job, and she did not decline the job. (Ex. 14, Santa Cruz Dep. at 193:19-94:1, 205:6-17; see also id. at 160:12-161:5).

109.

Santa Cruz was not given an opportunity during the third conversation to accept the job. (Ex. 14, Santa Cruz Dep. at 154:1-8).

110.

Santa Cruz believed that CGLIC had withdrawn the job offer. (Ex. 14, Santa Cruz Dep. at 163:14 - 164:19; 182:2 - 183:24). RESPECTFULLY SUBM ITTED this 4th day of November, 2005. MARY JO O'NEILL Regional Attorney C. EMANUEL SMITH Supervisory Trial Attorney

s/ Katherine J. Kruse KATHERINE J. KRUSE Trial Attorney

s/ Valerie L. Meyer VALERIE L. MEYER Trial Attorney 15 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 15 of 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Katherine J. Kruse J. Mark Ogden, Esq. J. Greg Coulter, Esq. Kristin R. Culbertson, Esq. LITTLER MENDELSON 2425 East Camelback Rd., Suite 900 Phoenix, AZ 85016 Attorneys for Defendant

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 North Central Ave., Suite 690 Phoenix, Arizona 85012-2504 Attorneys for Plaintiff

I certify that on this 4th day of November, 2005, 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:

16 Case 2:04-cv-00627-JAT Document 99 Filed 11/04/2005 Page 16 of 16