Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MARY JO O'NEILL AZ BAR # 005294 C. EMANUEL SMITH MS BAR # 7473 KATHERINE J. KRUSE AZ Bar # 019167 VALERIE L. MEYER CAL . BAR . # 228586 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 RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

Pursuant to Rule 56, Fed. R. Civ. P., Plaintiff, the Equal Employment Opportunity Commission ("EEOC" or "Commission") submits this Response in Opposition to the Motion for Summary Judgment filed by Defendant Connecticut General Life Insurance Company ("CGLIC"). Pursuant to Local Rule 1.10, this Response is supported by the attached Plaintiff's Statement of Facts (PSF) and the exhibits attached thereto. I. Introduction CGLIC was a wholly-owned subsidiary of CIGNA Corporation in 2001, (PSF ¶ 41), and it is undisputed that it remains so. CGLIC operates several customer service call centers, including the Phoenix Service Center. (PSF ¶ 42). Although it is part of the CGLIC subsidiary, the Phoenix Service Center regularly utilizes the "CIGNA" name in conducting its business and its employees usually refer to it as "CIGNA". (PSF ¶¶ 43-44). Therefore, the Phoenix Service Center is referred to interchangeably in deposition testimony, and in this response, as either "CIGNA" or "CGLIC." The staff of the Phoenix Service Center in 2001

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included a Human Resources Director, Heather Casey, and a Customer Service Manager, Cheryl Wroten. (PSF ¶¶ 45-46). Sandra Gasche also was employed there as a Staffing Consultant whose duties included recruiting applicants and making job offers.1 (PSF ¶ 49). In early November, 2001, Carmen Santa Cruz was fourteen to fifteen weeks pregnant with her second child, but her pregnancy was not yet visible. (PSF ¶ 51). She also was job searching because she had been notified by her employer, Charles Schwab, that she was being laid off as part of a massive lay-off. (PSF ¶ 52). It is undisputed that Santa Cruz applied for a job as a customer service associate at the Phoenix Service Center, passed a test to assess her customer service skills, was interviewed, and was offered a job. By the time the recruiter, Gasche, offered Santa Cruz a position, Santa Cruz already had informed the customer service manager who interviewed her, Wroten, that she had no concerns about CGLIC's strict attendance policy for new employees. (PSF ¶¶ 53, 62-63). The attendance policy came up approximately three times during the interview. (PSF ¶ 63). The interview form even required Wroten to read a statement to Santa Cruz that summarized the policy.2 (PSF ¶ 55). After the summary of the attendance policy, the interview form directed Wroten to ask: "What concerns do you have about such a rigid attendance policy?" (PSF ¶ 61). Next to the question, Wroten wrote, "No." (Id.) Santa Cruz was not concerned that her pregnancy would affect her ability to satisfy CGLIC's attendance requirements. (PSF ¶ 62). Wroten recommended that Santa Cruz be hired. (PSF ¶ 64). On the same day, Gasche left Santa Cruz a telephone message that CIGNA was extending her an offer. (PSF ¶¶ 65-66). Santa Cruz was delighted to receive an offer so quickly. (PSF ¶ 67). Within minutes of returning home, Santa Cruz returned the call and
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Although Gasche was paid through Dependable Staffing Services, she worked at CGLIC's offices under the supervision of CGLIC staff. (PSF ¶¶ 47-48). Gasche had the authority to extend offers of employment to CGLIC applicants, including the offer she extended to Carmen Santa Cruz. (PSF ¶ 50). The policy prohibits time off during the first 90 days and establishes a system of progressive discipline ranging from a "verbal counseling notice" after one unplanned absence to a "termination review" after four unplanned absences. (PSF ¶¶ 56-59). Although termination after the fourth absence is discretionary, CGLIC retains an employee after the fourth absence only in extraordinary circumstances, such as those involving a death in the family. (PSF ¶ 60). 2 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 2 of 18
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Gasche repeated the offer. (PSF ¶ 68-69). Gasche set forth the two starting dates, December 10 and 17, 2001, and explained that CGLIC wanted Santa Cruz to start on the earlier of the two. (PSF ¶ 70). Santa Cruz stated that she had a doctor's appointment on December 10 and asked if she could to start on December 17 instead. (PSF ¶ 70, 72). Gasche asked her to try to reschedule the appointment instead, and Santa Cruz agreed to try. (PSF ¶ 72). Thereafter, there ensued two additional conversations ­one between Santa Cruz and Gasche and one involving Santa Cruz, Gasche, and Casey, the Human Resources Director. Those conversations are set forth in detail below. Summarizing briefly, Gasche learned that Santa Cruz was pregnant. (PSF ¶¶ 75-76). Upon learning this, Gasche's attitude toward Santa Cruz changed completely. (PSF ¶ 77). From that point on, Gasche, and then Casey, focused on CGLIC's attendance requirements and their opinion, after learning of Santa Cruz's pregnancy, that Santa Cruz would be unable to meet those requirements. (PSF ¶¶ 79, 81, 83, 99-100). Santa Cruz indicated she would not have a problem with the attendance requirements, but to no avail. (PSF ¶¶ 80, 82, 101-102). At the end of the final conversation, Santa Cruz asked if there was anything she could do. Casey or Gasche responded that Santa Cruz should apply again after the baby was born. (PSF ¶¶ 105-107). Santa Cruz concluded that the offer was withdrawn. (PSF ¶ 110). As explained in detail below, there exists ample evidence for a reasonable jury to reach the same conclusion. II. Governing Legal Standards A. Title VII

Title VII prohibits an employer from discriminating against an employee "because of sex," which includes discrimination on the basis of pregnancy. 42 U.S.C. § 2000e(k). An unlawful employment practice is established when a plaintiff demonstrates that pregnancy or a pregnancy-related condition "was a motivating factor for any employment practice . . ." 42 U.S.C. §2000e-2(m). Title VII "insures that the decision whether to work while pregnant is reserved for each individual woman to make for herself." Maldonado v. U.S. Bank, 186 F.3d 759, 763 (7 th Cir. 1999). See also International Union, UAW v. Johnson Controls, 499 U.S. 187, 209, 211 (1991). Regarding liability, CGLIC argues only that Plaintiff cannot establish the existence 3 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 3 of 18

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of a genuine issue of material fact with regard to one element of the prima facie case, specifically, that CGLIC withdrew the job offer from Santa Cruz.3 See Raad v. Fairbanks N. Star Borough School Dist., 323 F.3d 1185, 1193 n.6 (9th Cir. 2003) (setting forth the elements of a prima facie case, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 817 (1973)). B. Summary Judgment

A motion for summary judgment may be granted only when "there is no genuine issues as to any material fact and . . . the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9 th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986)). Defendant fails to explain that, in resolving motions for summary judgment, courts are required to view the evidence in the light most favorable to the nonmoving party. Holley v. Crank, 400 F.3d 667, 673 (9 th Cir. 2005); Easter v. American West Financial, 381 F.3d 948, 956-957 (9 th Cir. 2004). The non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Orsini v. O/S Seabrook O.N., 247 F.3d 953, 958 (9 th Cir. 2001) (quoting Anderson, 477 U.S. at 255). Questions of credibility are to be left for a jury to decide. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Harris v. Itzhaki, 183 F.3d 1043, 1051 (9 th Cir. 1999). C. Defendant's Focus on Santa Cruz's "Perception" Misapprehends the Legal Standard Governing Analysis of Summary Judgment Motions

Defendant makes the novel argument that there is no genuine issue of material fact regarding withdrawal of the job offer because Santa Cruz merely "perceived" that the offer was withdrawn. The Commission agrees that Santa Cruz believed that the offer was withdrawn, based on her conversations with Gasche and Casey. However, the inquiry on

Notably, Defendant does not attempt to set forth a legitimate, non-discriminatory reason for withdrawing the job offer from Santa Cruz, the next step in the burden-shifting analysis applicable in employment discrimination actions. See Raad, 323 F.3d at 1193. 4 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 4 of 18

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motion for summary judgment is not merely what Santa Cruz perceived; the appropriate inquiry is whether there exists evidence from which a reasonable jury could conclude that the offer was withdrawn, when the evidence is viewed in the light most favorable to the nonmoving party and all inferences are drawn in its favor. See Holley, 400 F.3d at 673; Anderson, 477 U.S. at 255. If a reasonable jury could conclude that the offer was withdrawn, then there exists a genuine issue of material fact for a jury to resolve, and summary judgment should be denied.4 See Holley, 400 F.3d at 673; Anderson, 477 U.S. at 255. III. Viewed in the Light Most Favorable to the Non-Moving Party, There Exists Ample Evidence for a Reasonable Jury to Conclude That CGLIC Withdrew the Job Offer It Had Made To Santa Cruz When viewed in the light most favorable to the Commission, the non-moving party, there exists ample evidence for a reasonable jury to conclude that CGLIC withdrew or abandoned its job offer during the second and third conversations between Santa Cruz, Gasche, and ultimately, Casey. The second conversation began when Santa Cruz called Gasche back and advised that she could not reschedule the doctor's appointment. (PSF ¶ 73). Santa Cruz again asked Gasche if she could start on the second date, December 17. (PSF ¶ 74). Gasche did not accept that proposal or even respond to it. (Id.) Instead, Gasche asked what type of doctor's appointment Santa Cruz had, and why it could not be rescheduled. (PSF ¶ 75). Gasche also asked Santa Cruz what type of doctor she was seeing, or for what reason she was seeing a doctor. (Id.) At first, Santa Cruz merely indicated that she was seeing a specialist. (PSF ¶ 76). However, Gasche began to inquire if something was wrong with Santa Cruz. (Id.) In response to Gasche's inquiries, Santa Cruz explained that she was pregnant. (Id.) Gasche's attitude changed as soon as she learned of Santa Cruz's pregnancy. (PSF ¶ 77). Her tone of voice became agitated and she became impatient. (Id.) Gasche proceeded with a line of questioning indicating that she was concerned about whether Santa Cruz could meet attendance requirements while pregnant. Gasche asked Santa Cruz if she had told

Defendant also points to evidence that its witnesses deny that the offer was withdrawn; however, that evidence merely confirms that the parties dispute whether the offer was withdrawn. 5 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 5 of 18

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Wroten about her pregnancy. (PSF ¶ 78). Santa Cruz said that she had not. (Id.) Gasche asked whether W roten had reviewed the attendance requirements with Santa Cruz, and whether Santa Cruz understood them. (PSF ¶ 79). Santa Cruz responded that Wroten had discussed the attendance requirements, and that she understood them. (PSF ¶ 80). She added that she did not think her pregnancy would interfere with her ability to satisfy the attendance requirements. (Id.) Gasche does not recall Santa Cruz expressing any concerns about attendance, and Santa Cruz confirms that she did not. (PSF ¶ 82). Nonetheless, Gasche reviewed the attendance policy again with Santa Cruz in detail, including the steps in the progressive discipline process.5 (PSF ¶ 81). Gasche did not indicate that the offer was still open to Santa Cruz at any point after learning that Santa Cruz was pregnant. (PSF ¶ 86). Instead, Gasche ended the telephone call by stating that she needed to talk to someone in Human Resources and then call Santa Cruz again. (PSF ¶ 87). Gasche did not explain why she needed to contact Human Resources. (Id.) From the evidence regarding the second conversation, a reasonable jury could conclude that Gasche was concerned about the effect that Santa Cruz's pregnancy would have on her attendance, that she was attempting to dissuade Santa Cruz from accepting that position, and that, when Santa Cruz was not dissuaded, Gasche was unwilling to continue to offer the position, deciding decided to involve Human Resources instead. After ending the conversation with Santa Cruz, Gasche spoke with Heather Casey, the Human Resources Director at the Phoenix Service Center. Gasche explained to Casey that, when she called Santa Cruz to offer the position, she learned that Santa Cruz was pregnant. (PSF ¶ 88). Gasche added that she had explained the 90-day attendance policy to Santa Cruz after learning of her pregnancy. (PSF ¶ 89). Casey testified that Gasche asked her to make

Gasche gave inconsistent testimony about why she reviewed the attendance policy with Santa Cruz at length during this conversation. Gasche stated that, if an applicant expressed concern about meeting requirements, it was in everyone's best interest to review the requirements. (PSF ¶ 84). However, Gasche then admitted that Santa Cruz did not express any concerns about the attendance policy. (PSF ¶ 82). Thereafter, Gasche testified that she emphasized the attendance policy because Santa Cruz had mentioned a doctor's appointment. (PSF ¶ 85). This testimony gives a reasonable jury further basis for concluding that Gasche became concerned about attendance after learning of Santa Cruz's pregnancy. 6 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 6 of 18

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a joint telephone call to Santa Cruz to clarify the attendance policy, in order to make sure that Santa Cruz understood it. (PSF ¶ 90). In her deposition testimony, Gasche vacillated about the reason she wanted Casey to reiterate the attendance policy to Santa Cruz yet again. The reasons she gave include the following: (1) she wanted to make sure that Santa Cruz understood the policy so she could make the best choice about whether to take the job; (2) she wanted Santa Cruz to understand the policy so that she would know what she was accepting, if she accepted the job; and (3) Santa Cruz already had declined the position, but Gasche wanted to give her another opportunity to accept. (PSF ¶ 91-92). Given these inconsistencies, a reasonable jury could reject any one or all of the explanations Gasche offered. A reasonable jury also could conclude that Gasche had an entirely different motive for involving Casey, a motive arising from the authority given to various CGLIC staff. Gasche had the authority to make an offer of employment, and the authority to accept an applicant's decision to decline an offer. (PSF ¶ 93). However, Gasche did not have the authority to rescind an offer; only Human Resources could do that. (PSF ¶ 94). By involving Casey, the offer could be withdrawn. After Gasche spoke with Casey, the two jointly called Santa Cruz for a third conversation. (PSF ¶ 95). During this conversation, neither Gasche nor Casey told Santa Cruz that the offer was still open, or indicated that she was welcome to come. (PSF ¶ 96, 104). They did not indicate that Santa Cruz could start on the second date, December 17, 2001. (PSF ¶ 97). Instead, the conversation focused again on Santa Cruz's pregnancy, and CGLIC's attendance policy. From the failure to mention the offer or discuss the second start date, a reasonable jury could readily conclude that the offer was no longer open. Focusing on the pregnancy and attendance issues, Casey told Santa Cruz that Gasche had informed her that Santa Cruz was pregnant. (PSF ¶ 98). Casey and Santa Cruz both testified that Casey proceeded to explain the 90-day attendance policy for new employees in some detail, including the steps of the progressive discipline process applied after each absence. (PSF ¶¶ 99-100). Casey also asked Santa Cruz whether she understood the policy. (PSF ¶ 100). Santa Cruz once again responded that she did understand the attendance policy 7 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 7 of 18

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and did not foresee missing work or being late due to her pregnancy. (PSF ¶ 101). She added that she could schedule doctor's appointments on her own time, but they merely responded by repeating the policy. (PSF ¶ 102). Nothing Santa Cruz said dissuaded Casey and Gasche from the position that Santa Cruz could not satisfy the attendance requirements. Casey or Gasche stated that Santa Cruz would not want to start her career with CIGNA by missing time or being late. (PSF ¶ 103). They added that it would not be a good idea to be reprimanded or even terminated at the start of a new job at CIGNA.6 (Id.) Given Gasche's and Casey's focus on the attendance policy, and their unshakeable position that Santa Cruz could not satisfy the policy, a reasonable jury could conclude that the two had decided Santa Cruz would not succeed and should not be given the job. At this point, Santa Cruz asked if there was anything else she could do to meet CGLIC's requirements. (PSF ¶ 105). Casey or Gasche responded that Santa Cruz should apply again after the baby was born. (Id.) Gasche admits she might have stated this, and Casey admits she might have said to reapply in a year, although both attempt to offer justifications for their statements. (PSF ¶ 106-107). A reasonable jury could conclude that CGLIC culminated the withdrawal or abandonment of the job offer by making this statement. Contrary to the evidence offered by Defendant, Santa Cruz never told Casey or Gasche that she was declining the job offer or that she was not longer interested. (PSF ¶ 108). The two CGLIC staffers never even gave Santa Cruz the opportunity to accept the position or to express her continued interest. (PSF ¶ 109). Viewed in totality and in the light most favorable to the non-moving party, the EEOC's evidence indicates that, upon learning of Santa Cruz's pregnancy, CGLIC officials decided to withdraw, and did withdraw or abandon, the job offer CGLIC had made to Santa Cruz. Before learning of Santa Cruz's pregnancy, CGLIC enthusiastically offered Santa Cruz a job. After CGLIC learned of her pregnancy, the following occurred, in summary: \\
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1. 2. 3. 4.

Gasche and Casey did not reassert the offer or even indicate the offer was still open at any time after learning that Santa Cruz was pregnant; Gasche and Casey did not discuss with Santa Cruz the option of starting on the second date, December 17, after learning of her pregnancy; Gasche's attitude toward Santa Cruz changed upon learning that Santa Cruz was pregnant ­ she became agitated and impatient; Gasche, and then Casey, repeated the details of the 90-day attendance policy, details that Santa Cruz already heard from Wroten and understood; Gasche ended the second conversation by stating that she needed to speak to someone from Human Resources, but failed to give Santa Cruz any explanation about what she needed to discuss with HR; Casey, the Human Resources Director, had the authority to withdraw an offer, and initiated the third conversation with Santa Cruz; Gasche and Casey took the position that Santa Cruz could not satisfy the attendance requirements despite Santa Cruz's repeated statements that she could do so; Gasche offered a number of inconsistent explanations for reiterating the attendance policy during her second conversation with Santa Cruz; and for asking Casey to reiterate it again in a third conversation; Santa Cruz asked if there was anything else she could to do meet CGLIC's requirements, and Gasche or Casey responded that Santa Cruz should reapply after the baby was born.

5.

6. 7.

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

The evidence the Commission sets forth above paints a very different picture of CGLIC's actions than does the Defendant's evidence. The reason for the difference is simple ­ Defendant ignored disputed issues of material fact and presented evidence in the light most favorable to Defendant, contrary to the approach required on motion for summary judgment. See Anderson, 477 U.S. at 248, 255. When the proper approach is employed, there exists genuine issues of material fact regarding whether CGLIC withdrew or abandoned the job offer from Santa Cruz. Summary judgment on this issue should be denied so that a jury can resolve these disputed fact issues. IV. The Commission Does not Assert a "Constructive W ithdrawal" Claim Defendant claims that the Commission is making a claim that CGLIC's offer was constructively withdrawn from Santa Cruz. The Commission makes no such claim. The Commission claims that CGLIC actually withdrew the offer, as explained in detail in the previous section. Because there is no constructive withdrawal claim, the Court 9 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 9 of 18

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need not address Defendant's arguments on this issue.7 V. A Reasonable Jury Could Conclude that CGLIC Did Not Engage in Good Faith Efforts to Comply with Title VII to Insulate It from a Punitive Damages Award. With regard to punitive damages, Defendant does not argue that it did not act "with malice or with reckless indifference to the federally protected rights of [Santa Cruz]." 42 U.S.C. § 1981a(b)(1). Defendant argues only that there is no genuine issue of material fact regarding the existence of an affirmative defense, despite its conduct. "[I]n the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's `good faith efforts to comply with Title VII.'" Kolstad v. American Dental Ass'n, 527 U.S. 526, 545, 119 S. Ct. 2118, 2129 (1999). It is CGLIC's burden to prove that it undertook sufficient good faith efforts to comply with Title VII so as to deserve insulation from liability for punitive damages. Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1291 (9 th Cir. 2001) . The Supreme Court did not define "good faith efforts," but subsequent decisions have specified that "an employer must at least adopt antidiscrimination policies[,] make a good faith effort to educate its employees about these policies, . . . [and] make good efforts to enforce" the policies. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000), quoted in Winarto, 274 F.3d at 1292; see also Swinton v. Potomac Corp., 270 F.3d 794, 810-11 (9 th Cir. 2001) ("[I]t is insufficient for an employer simply to have in place anti-harassment policies; it must also implement them."); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9 th Cir. 2000).

CGLIC's effort to construct, and then defeat, the purported "constructive withdrawal" claim does not correctly apply the law of constructive discharge. Defendant correctly explains that, in a constructive discharge claim, a plaintiff does not argue that she was actually discharged, but that conditions were so intolerable that a reasonable person would have felt compelled to resign. (Def.'s Mot. at 10). However, Defendant then asserts that, applying constructive discharge analysis, the Court must find that Santa Cruz could only conclude that CGLIC had withdrawn its offer. (Id.) If there was a "constructive withdrawal" claim based on constructive discharge case law, a plaintiff would not argue that the defendant had withdrawn the offer at all, let alone that no other conclusion could be drawn from the defendant's conduct. Rather, the plaintiff would argue that the circumstances were so intolerable that a reasonable person would have felt compelled to decline the offer. 10 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 10 of 18

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The evidence of record reveals genuine issues of material fact as to the adequacy of CGLIC's policy, the existence of good faith efforts to implement the policy during the relevant time period and the adequacy of any such implementation efforts, and the existence and adequacy of policy enforcement measures. A. Inadequacy of the Policy

CGLIC argues without justification that its EEO policy puts it solidly on the path towards demonstrating good faith efforts to comply with Title VII. In doing so, it ignores its burden to prove the adequacy of its EEO policy with respect to the prevention of pregnancy discrimination. The EEO policy, as stated in the employee handbook, completely omits any reference to pregnancy, children, childbirth, or discrimination on the basis of any of the foregoing. (PSF ¶ 11). This omission is especially glaring in light of the policy's extensive list of other prohibited forms of discrimination, i.e., on the basis of "race, color, age, gender, religion, national origin, disability, sexual orientation, veteran or marital status." (Id.) Employers are required to do more than implement a "generalized policy of equality and respect for the individual," EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir. 1999). In order to effectively encourage compliance with Title VII, a policy must set forth the law's demands of employees in the workplace. Absent any indication that discrimination on the basis of pregnancy is illegal or otherwise prohibited by CGLIC, a reasonable jury might conclude that the policy does not represent a good faith effort to combat pregnancy discrimination. B. Dearth of Implementation Efforts During the Relevant Time Period

There are also genuine issues of material fact as to whether CGLIC made good faith efforts to implement the policy by 2001. Education and training programs in effect after 2001 are without relevance here, as CGLIC's discriminatory conduct towards Santa Cruz took place in late 2001. Subsequent good faith efforts to comply with Title VII do not insulate an employer from incurring punitive damages for prior acts of discrimination. See David v. Caterpillar, 324 F.3d 851, 865 (7 th Cir. 2003) (rejecting the idea that "good deeds taken by the employer after it has made an unlawful employment decision somehow insulate the employer from an award of punitive damages"); Lust v. Sealy, Inc., 277 F. Supp. 2d 973, 11 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 11 of 18

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998 (W.D. Wis. 2003); Greene v. Coach, Inc., 218 F. Supp. 2d 404, 414 (S.D.N.Y. 2002) ("[A] dearth of antidiscrimination training during the time period at issue in this lawsuit could actually lead a jury to infer that Coach did not, in fact, make a good faith effort to enforce such policies."). CGLIC relies exclusively on the deposition testimony of the current Human Resources Director at its Phoenix Service Center, Tiffanie Dillard, in demonstrating its allegedly goodfaith efforts. (DSF ¶¶ 32-45). Dillard, who first became employed with CGLIC in 1999, catalogued the training programs in effect since her installation as the Human Resources Director for the Phoenix Service Center in August 2002. (PSF ¶ 1). However, Dillard admitted that she lacked any knowledge of the structure of the Phoenix Service Center prior to 2002, including the late 2001 time period relevant in this lawsuit. (PSF ¶ 2). Any testimony offered by Dillard as to the training opportunities available in 2001at the Phoenix Service Center is not based upon personal knowledge and is inadmissible.8 (PSF ¶¶ 1-3). In addition to the inadequacy of Dillard's testimony, there is also affirmative evidence that shows that CGLIC did not educate or train its employees in 2001. Heather Casey Giles, Dillard's predecessor, testified that she never received formal EEO training while employed with CGLIC. (PSF ¶ 23). Sandra Gasche, the staffing consultant who dealt with Santa Cruz, could not recall any EEO trainings or conversations while at CGLIC, nor could she even identify whether pregnancy discrimination is a form of sex discrimination or disability discrimination. (PSF ¶ 9). Cheryl Wroten, the manager who interviewed Santa Cruz, could recall only one instance of EEO training during her time at CGLIC, contrary to Dillard's suggestion that training occurred frequently, and Wroten did not remember the length or content of that training. (PSF ¶ 24). Finally, while there is some evidence that the training materials produced, such as the CEO's reaffirmation statement or documents entitled "Building an Inclusive Environment," "Honest Interviewing for Rational Employment," and "New M anager Handbook," were

Defendants offer no testimony or other evidence that Dillard's position as Regional Training Director from 2000-2002 provided her with personal knowledge of the training conducted at the PSC. (PSF ¶ 3.) 12 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 12 of 18

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generally in use in 2001, Defendants offer no evidence that they were actually in use at the Phoenix Service Center. 9 (See PSF ¶ 3). They therefore do not constitute evidence of implementation measures taken by 2001 at the Phoenix Service Center. (DSF ¶¶ 35-36). The Civil Treatment course, whose materials were produced, merely discusses the equal treatment of all employees in a generalized way insufficient to constitute good faith efforts to comply with Title VI. Wal-Mart, 187 F.3d at 1249. Furthermore, although Dillard testified that attendance records were kept for Civil Treatment attendees, no such records were produced. (PSF ¶ 26). With respect to HR 101 and the interviewing workshop, there is no evidence that the employees involved in making decisions with respect to Santa Cruz's employment attended these workshops. 10 In addition, a jury might conclude that limiting education concerning pregnancy discrimination to managers does not demonstrate good faith effort to comply with Title VII. C. Inadequacy of Implementation Efforts After the Relevant Time Period

Even if any of the training described by Dillard actually had been implemented by the time of Santa Cruz's interview in 2001, genuine issues of material fact also persist about the training's adequacy. Non-management employees allegedly receive training during new-hire orientation, and are otherwise exposed to the same generalized EEO policy via new-hire documents, 11 CGLIC's website, wallet-sized cards, an affirmation statement from the CEO, an employee evaluation component scoring the fair treatment of employees, and "five-inone" postings. However, no evidence concerning the content of "five-in-one" postings or the EEO component of the new-hire orientation was produced, precluding a jury from finding that these measures constituted good faith efforts to comply with Title VII.

Moreover, the only CEO reaffirmation statement produced by CGLIC is dated January 3, 2005, well after the relevant time period. (PSF ¶ 18). Although Wroten remembers attending manager training, she did not remember the length or content. (PSF ¶ 24).
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Tellingly, the remaining materials fail to mention pregnancy discrimination or otherwise discuss pregnancy as a part of sex discrimination.12 (PSF ¶¶ 10-11, 15-19, 21, 25, 27.) As discussed above, employers must educate employees on the requirements of the law in order to prevent discrimination in the workplace." Wal-Mart, 187 F.3d at 1249. The inadequate nature of any training provided by CGLIC is evidenced by Gasche's inability to identify whether pregnancy discrimination is a form of sex discrimination or disability discrimination (PSF ¶ 9), her testimony that she does not recall having seen the employee handbook or otherwise having been asked to review the EEO policy at CGLIC (PSF ¶ 13), and Wroten's testimony that she had never seen the employee handbook prior to her deposition. (PSF ¶ 12). CGLIC contends that managers receive EEO training on four additional occasions­ a seminar on affirmative action goals, an "HR 101" seminar pertaining to EEO policies, an equal treatment course known as "Civil Treatment," and an interviewing workshop for managers who will participate in interviewing potential employees. (DSF ¶¶ 35-37.) The affirmative action seminar is limited to discussion of CGLIC's affirmative action plan, which by CGLIC's own admission does not include sex-related goals for the Phoenix Serivce Center. (DSF ¶¶ 35-36). The Civil Treatment course, whose materials were produced, discusses the equal treatment of all employees in an unacceptably generalized way. Wal-Mart, 187 F.3d at 1249. Furthermore, although Dillard testified that attendance records were kept for Civil Treatment attendees, no such records were produced. (PSF ¶ 26). With respect to HR 101 and the interviewing workshop, there is no evidence that the employees involved in making decisions with respect to Santa Cruz's employment attended these workshops. Although Wroten remembers attending manager training, she did not remember the length or content. (PSF ¶ 24.) In addition, a jury might conclude that limiting education concerning pregnancy discrimination to managers does not demonstrate good faith efforts to comply with Title VII.

A part of CGLIC's website cautions against asking questions related to reproduction during interviews, but would ostensibly only be accessed by employees conducting interviews, such as managers. (PSF ¶ 16). 14 Case 2:04-cv-00627-JAT Document 98 Filed 11/04/2005 Page 14 of 18

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D.

Absence of Any Adequate Enforcement Efforts

CGLIC has also failed to establish the absence of genuine issues of material fact surrounding the existence or adequacy of good faith efforts to enforce its antidiscrimination policy during the period through 2001. As stated above, Dillard lacked knowledge of efforts undertaken at the Phoenix Service Center prior to 2002. Dillard testified that, in her experience from 2002 forward, employees are held accountable for supporting CGLIC's EEO policy via an employee evaluation component known as the "People Expectation" or "Manager Expectation." (DSF ¶ 44). This component evaluates an employee's "fair treatment" of other employees, (DSF ¶ 44), which is no more suggestive of good faith efforts to comply with Title VII than an unacceptable, "generalized policy of equality and respect for the individual." Wal-Mart, 187 F.3d at 1249. Furthermore, CGLIC failed to produce any such evaluation, and 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. (PSF ¶ 21). When asked how managers were held accountable for the EEO policy, Heather Casey, the Human Resources Director in 2001, named only the updates she provided to managers on affirmative action goals. (PSF ¶ 20). Absent any other evidence of policy enforcement through 2001, a reasonable jury could conclude that CGLIC did not make good faith efforts to enforce its policy prohibiting discrimination based on sex, including pregnancy. VI. The Evidence Is Such that a Reasonable Jury Could Conclude That Santa Cruz is Entitled to Back Pay Beyond January 18, 2002 CGLIC contends that Santa Cruz's eligibility for back pay ends on January 18, 2002, the date by which she was a Security Trust employee, although she was again unemployed within weeks and remained so until her July 8, 2002 Wells Fargo hire date. Essentially, CGLIC argues that Santa Cruz failed to mitigate her damages when she resigned from Security Trust, thereby permanently cutting off her back pay eligibility. The EEOC does not dispute that "voluntarily quitting alternative employment without good reason" may limit a charging party's award of back pay. Sangster v. United Air Lines, Inc., 633 F.2d 864, 868

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(9th Cir. 1980) (emphasis added); see also Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1278 (4th Cir. 1985) (noting that the back pay period is tolled where "the quit is motivated by personal reasons unrelated to the job or as a matter of personal convenience" because these reasons are not "compelling or justifying"). In this case, however, there is sufficient evidence upon which a reasonable jury could conclude that Santa Cruz's decision to end her employment with Security Trust was reasonable. The existence of such evidence demonstrates CGLIC's failure to meet its burden, id.; see also Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995) (placing burden of proof of employee's failure to mitigate damages on employer), and precludes summary judgment. Santa Cruz has testified that she left Security Trust only after determining that to remain was to risk losing her three National Association of Securities Dealers (NASD) licenses. (PSF ¶¶ 35-36). In the short time she was employed at Security Trust, Santa Cruz was witness to disorganized, improper maintenance of client information without regard to confidentiality, untimely handling of client information to the detriment of the client, and management's failure to perform its duties reasonably. (PSF ¶¶ 30-32). In addition, Santa Cruz believed that Security Trust impermissibly was engaged in the practice of night trading. (PSF ¶ 33). These observations directly led her to conclude that remaining a Security Trust employee would jeopardize her three NASD licenses, which she believed were concerned with, among other matters, the ethical and confidential maintenance of client information. (PSF ¶ 35). Resignation under such circumstances does not limit Santa Cruz's back pay. "[A] voluntary quit does not toll the back pay period when it is motivated by unreasonable working conditions." Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 696 (2d Cir. 1998), quoting EEOC v. Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992); see also Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.16, 102 S. Ct. 3057, 3065 n.16 (1982) (stating that employee is not required to take a position "which involves conditions that are substantially more onerous than [her] previous position," or is "demeaning"); Johnson v. Spencer Press of Main, Inc., 364 F.3d 368, 382 (1st Cir. 2004); NLRB v. Pepsi Cola Bottling Co. of 16

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Fayetteville, Inc., 258 F.3d 305, 310-11 (4th Cir. 2001) (preserving employee's right to back pay where his resignation was justifiable or reasonable); United States v. City of Chicago, 853 F.2d 572, 579 (7th Cir. 1988) (approving employee's departure from a position that did not provide her with enough work to occupy her time); Oil, Chem. & Atomic Workers Int'l Union, v. NLRB, 547 F.2d 598, 603 (D.C. Cir. 1976) (noting than an excessive commute is a justifiable reason to resign). Where continued employment would have required Santa Cruz to turn a blind eye to her ethical duties and/or endanger her professional licenses, those conditions of employment are unreasonable, onerous, and demeaning, so as to permit her to resign without incurring back pay losses. Furthermore, even if Santa Cruz's resignation is not considered justifiable, quitting a non-comparable job for "personal" reasons does not cut off a back pay award. See, e.g., Sellers v. Delgado Cmty. College, 839 F. 2d 1132, 1137-38 (5th Cir. 1988). The only evidence CGLIC offers to suggest that the Security Trust position was comparable or substantially equivalent to the CGLIC position is evidence that Santa Cruz would have earned more at Security Trust than at CGLIC. Monetary compensation, however, is not the sole consideration in determining whether positions are comparable ­ "promotional opportunities, . . . job responsibilities, working conditions, and status" are also relevant. Sellers, 839 F. 2d at 1138 (5th Cir. 1988) (noting that Williams v. Albemarle City Bd. of Ed., 508 F.2d 1242, 1243 (4th Cir.1974), found that other factors may be more important than comparability of pay). Santa Cruz testified that the position at Security Trust was only temporary and described it as an "internship," (PSF ¶ 28), suggesting that the conditions of employment, promotional opportunities, and status were not comparable to the CGLIC position. On the evidence of record, a reasonable jury could conclude that the positions are not comparable or substantially equivalent. CGLIC is not entitled to summary judgment ending the back pay period on January 18, 2002 as a matter of law. VII. Conclusion The Commission respectfully requests that the Court deny Defendants' Motion because, with respect to each basis Defendant raises, there are genuine issues of material fact 17

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that should be decided by a jury. 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 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: 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

s/ Katherine J. Kruse

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