Free Statement - District Court of Arizona - Arizona

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

J. Mark Ogden, AZ Bar No. 017018 J. Greg Coulter; AZ Bar No. 016890 Kristin R. Culbertson; AZ Bar No. 020801 LITTLER MENDELSON A Professional Corporation Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: 602.474.3600 Facsimile: 602.957.1801 E-Mail: [email protected] [email protected] [email protected] Attorneys for Defendant Connecticut General Life Insurance Company UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Equal Employment Opportunity Commission, Plaintiff, v. Connecticut General Life Insurance Company, Defendant. Case No. CIV'04-0627 PHX JAT DEFENDANT'S STATEMENT OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Defendant Connecticut General Life Insurance Company, by and through undersigned counsel, hereby submits its Statement of Facts in Support of Its Motion for Summary Judgment. 1. On March 30, 2004, the EEOC filed the pending Complaint in response to a

charge of discrimination filed by Carmen Santa Cruz. (Complaint). 2. The Complaint alleges one cause of action: sex discrimination, in violation of

Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(a). (Complaint). 3. The EEOC maintains that CGLIC discriminated against Ms. Santa Cruz

because she was pregnant. (Complaint).

Case 2:04-cv-00627-JAT

Document 97

Filed 09/16/2005

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

4.

In its Answer, CGLIC admits that it offered Ms. Santa Cruz a position, but

denies that the offer was withdrawn. (Answer). 5. CGLIC operates call centers responsible for fielding questions regarding health

care coverage on behalf of various CIGNA Corporation entities. (Deposition of Heather Casey-Giles, attached hereto as Exhibit 1, at 107:11-18; Deposition of Cheryl Wroten, attached hereto as Exhibit 2, at 85:6-18). 6. In November 2001, CGLIC had several available openings for customer (Deposition of Carmen Santa Cruz,

service associates at its Phoenix, Arizona facility.

attached hereto as Exhibit 3, at 23:12-24:2; Deposition of Sandra Gasche, attached hereto as Exhibit 4, at 44:21-45:1). Customer service associates communicate primarily via the

telephone responding to requests for information and assistance with benefits. (Exh. 1 at 104:12-105:8; Exh. 3 at 27:25-28:14; EEOC CGLIC 122, attached hereto as Exhibit 5). The majority of callers request information and assistance with solving problems regarding member eligibility, benefit coverage, and administrative procedures. (Exh. 2 at 59:15-60:14; Exh. 3 at 27:25-28:14; Exh. 5). 7. On November 8, 2001, Ms. Santa Cruz submitted an application via the

Internet and mailed her resume to GCLIC. (Exh. 3 at 23:12-24:2; 30:4-13). 8. On November 15, 2001, Ms. Santa Cruz submitted an application and tested

for a customer service associate position. (Exh. 3 at 30:23-31:14). 9. Based on Ms. Santa Cruz's test score, 80%, she was scheduled for an in-person

interview with Cheryl Wroten, Training Manager, on November 16, 2001. (Exh. 2 at 14:2315:1; Exh. 3 at 33:15:23; 71:7-9). 10. Because of the rigorous nature of CGLIC's training class, attendance is

emphasized at every stage of the hiring and orientation process. (Exh. 1 at 34:21-35:3; Exh. 2 at 26:4-7; Exh. 4 at 42:11-20; 150:22-151:1; 154:6-155:19). There are large quantities of information disseminated in a short period of time and training is conducted in a classroom setting; it is not individualized. (Exh. 4 at 38:9-18). Attendance at all sessions is critical

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

because training sessions build on one another and absent employees are unable to keep pace with the other trainees. (Exh. 4 at 39:20-40:9). 11. During Ms. Santa Cruz's interview, Ms. Wroten informed her of CGLIC's

attendance policy for new hires (the "90-day attendance policy"). (Exh. 3 at 78:18-79:25; Exh. 4 at 42:11-22; 67:15-19). 12. The 90-day attendance policy requires 100% attendance, Monday through

Friday, from 8:00 a.m. to 5:00 p.m., for the eight to ten weeks of training. During this time no absences are permitted. (Exh. 3 at 77:13-79:11; Exh. 4 at 43:1-44:20; EEOC CGLIC 0101-0118, attached hereto as Exhibit 6). 13. In addition to conveying the 90-day attendance policy during the interview,

CGLIC requires the interviewer ask specific attendance-related questions. (Exh. 2 at 19:1920:11; Exh. 3 at 105:10-24; Exh. 4 at 67:22-68:12; EEOC CGLIC 0057-0062, attached hereto as Exhibit 7). Ms. Santa Cruz estimates that during her interview CGLIC's 90-day attendance policy was discussed with her "probably three times." (Exh. 3 at 106:7-13; 108:9-14). In response, Ms. Santa Cruz indicated she had no concerns regarding the policy. (Exh. 2 at 20:12-14; Exh. 3 at 79:12-25; 105:22-106:1). 14. When Ms. Santa Cruz returned home from the interview, she had a message on

her answering machine offering her the customer service associate position. (Exh. 3 at 87:13-24; Exh. 4 at 47:7-13; 70:9-14; D 0001-0004, attached hereto as Exhibit 8). 15. Ms. Santa Cruz returned the call and spoke with Sandra Gasche, Staffing

Consultant. (Exh. 4 at 71:21-23). As a staffing consultant, Ms. Gasche was responsible for sourcing candidates, testing applicants, conducting interviews, and extending offers of employment. (Exh. 4 at 23:24-24:3; 32:2-8). 16. Although there were two training classes offered, December 10, 2001 and

December 17, 2001, Ms. Gasche asked that Ms. Santa Cruz begin on December 10, 2001. (Exh. 3 at 89:16-20; Exh. 4 at 74:6-23; 152:11-19). Ms. Santa Cruz, however, expressed a preference for starting on December 17, 2001, because of a previously scheduled medical appointment, but suggested she would try to have it rescheduled. (Exh. 3 at 130:3-131:22).
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

17.

At no time during this conversation did she disclose, nor was she asked about

the medical condition that necessitated her doctor's appointment. (Exh. 3 at 131:10-14). 18. Ms. Santa Cruz contacted the lab, where she was scheduled for an ultrasound

on December 10, 2001, and was told that it would be another month before she could reschedule. (Exh. 3 at 133:2-6). 19. In a second telephone conversation, Ms. Santa Cruz explained to Ms. Gasche

that she was unable to reschedule her appointment, and requested to begin on December 17, 2001. (Exh. 3 at 139:21-140:4). Ms. Gasche asked about the nature of the appointment and Ms. Santa Cruz responded that she was scheduled to see a specialist. (Exh. 3 at 140:5-10). Ms. Gasche asked if Ms. Santa Cruz could reschedule the appointment to take place after Ms. Santa Cruz completed her training. (Exh. 3 at 140:14-141:5; Exh. 4 at 73:8-17; 79:3-8). Ms. Santa Cruz then shared that she was pregnant, and explained that she could not postpone her appointment because it was pregnancy related. (Exh. 3 at 140:8-141:5). Ms. Gasche then reiterated the attendance policy and indicated she would speak with CGLIC's Human Resources Department and get back with Ms. Santa Cruz. (Exh. 3 at 89:16-90:3; 140:11-13). 20. Although not explained to Ms. Santa Cruz, Ms. Gasche consulted with human

resources because, as a staffing consultant, she was not charged with enforcing the 90-day attendance policy and wanted to ensure Ms. Santa Cruz had an accurate understanding of the reasons for the policy and its provisions. (Exh. 1 at 30:3-22; Exh. 4 at 89:16-91:10; 153:116). 21. Notably, Ms. Santa Cruz never accepted the customer service associate

position, in either of these two telephone conversations. (Exh. 3 at 143:24-146:12). In fact, she was not prepared to accept the position because CGLIC had not yet answered all of her questions regarding training and salary. (Exh. 3 at 144:1-6). At best, she claims that she "impliedly" accepted the position by discussing on which date she preferred to begin and trying to change her medical appointment. (Exh. 3 at 144:18-146:16). 22. Shortly thereafter, Heather Casey, Senior Human Resources Consultant, along

with Ms. Gasche, contacted Ms. Santa Cruz. (Exh. 1 at 36:15-19; Exh. 4 at 97:2-7).
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

23.

In this call, Ms. Casey covered the details of the 90-day attendance policy,

including its scope, the reasons for the policy, and the corresponding progressive disciplinary policy. (Exh. 1 at 37:25-38:25; 45:10-14; Exh. 3 at 150:23-151:12; Exh. 4 at 97:18-98:4). 24. The 90-day progressive disciplinary policy is as follows: No time off is available in the first 90 days of employment. Unplanned absences during the first 90 days will be addressed as follows: 1st unplanned absence = VC (Verbal Counseling) 2nd unplanned absence = RI (Requires Improvement Notice) 3rd unplanned absence = JIJ (Job in Jeopardy notice) 4th unplanned absence = Termination Review (Exh. 1 at 18:22-21:21; Exh. 2 at 51:20-52:9; Exh. 3 at 107:18-108:11; EEOC CGLIC 00460055, attached hereto as Exhibit 9). 25. At the end of this conversation, Ms. Santa Cruz asked if there was anything

else that could be done. (Exh. 3 at 164:20-25). Either Ms. Casey or Ms. Gasche suggested Ms. Santa Cruz reapply at a later time. (Exh. 1 at 50:12-18; Exh. 3 at 164:20-25). 26. Ms. Santa Cruz admits that she never accepted the position, during any of these (Exh. 3 at 154:1-155:18; 155:23-156:11; 177:2-11; 177:24-178:9). She

conversations.

claims that she was unable to accept the offer because she did not have an adequate opportunity, although she was offered the position on two occasions ­ both on her answering machine and during the second phone call. (Exh. 3 at 154:1-155:18; 155:23-156:11; 177:211; 177:24-178:9). 27. Ms. Santa Cruz testified that an adequate opportunity to accept the position

required CGLIC to tell Ms. Santa Cruz to attend her December 10, 2001 doctor's appointment and allow her to begin training on December 17, 2001 instead of December 10, 2001. (Exh. 3 at 156:12-157:3).

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

28.

More importantly, however, Ms. Santa Cruz acknowledges that CGLIC never

withdrew the offer of employment. (Exh. 1 at 131:14-20; Exh. 3 at 157:16-158:16; 168:1221; 181:23-182:1; 298:6-9; Exh. 4 at 99:5-8; 152:19-25). 29. Ms. Santa Cruz relies on six comments and/or events that occurred throughout

the three telephone calls, which caused her to perceive the offer was withdrawn: (1) during the second phone call she was asked the reason for the doctor's appointment; (2) asking her to reschedule her doctor's appointment; (3) Ms. Santa Cruz asked twice to begin training on December 17, 2001 instead of December 10, 2001, with no response from CGLIC; (4) repeated discussions regarding the 90-day attendance policy; (5) asking if she disclosed her pregnancy to the interviewer; and (6) when Ms. Santa Cruz asked if there was anything that could be done, suggesting that she reapply after the baby's birth. (Exh. 3 at 163:14-165:4; 178:2-9; 182:2-183:25; 298:11-299:3; 300:7-16). 30. Ms. Santa Cruz's own testimony, however, demonstrates that even she doubted

whether the offer was withdrawn. (Exh. 3 at 299:8-11). 31. The EEOC's Complaint includes a claim for punitive damages. (Complaint).

The Answer sets forth an affirmative defense alleging that the EEOC is not entitled to punitive damages because the imposition of such damages is contrary to CGLIC's good faith efforts to comply with Title VII. (Answer). 32. CGLIC has an Equal Employment Opportunity ("EEO") policy, which is

communicated to its employees, through the employee handbook and orientation. (Deposition of Tiffanie Dillard, attached hereto as Exhibit 10, at 57:11-22). 33. EEO training is also offered to CGLIC employees at the Phoenix Service

Center. (Exh. 10 at 39:23-11). 34. With respect to management, training includes informal briefings and live

instruction. (Exh. 10 at 40:8-16). 35. In 2004, CGLIC conducted two live instructor-led management training

sessions. (Exh. 10 at 45:14-17). Although Ms. Dillard could not recall the exact number of live management training seminars prior to 2004, she testified that CGLIC consistently
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

provides structured EEO training to its managers at least annually. (Exh. 10 at 45:18-23). This first training session covered CGLIC's affirmative action plan and lasted approximately two hours. (Exh. 10 at 42:3-5; 42:20-23). The seminar covered CGLIC's affirmative action goals, suggestions on reaching those goals, and the manager's role in achieving those goals. (Exh. 10 at 43:10-18). 36. Gender is not part of CGLIC's affirmative action plan because the Phoenix call

center is not underrepresented in this category; 86% of CGLIC's employees are female. (Exh. 10 at 44:2-45:8). 37. The second management training seminar, HR 101, provides training on

discrimination avoidance, harassment avoidance, the Americans with Disabilities Act, among other EEO policies, and lasts approximately six hours. (Exh. 10 at 42:6-19). 38. Managers are required to attend Civil Treatment, a CGLIC sponsored course,

before they are promoted or hired as a manager. (Exh. 10 at 47:11-23). Civil Treatment is a two-day session devoted to EEO issues, primarily equal treatment of all employees. (Exh. 10 at 47:11-48:4). More specifically, Civil Treatment addresses discrimination, wrongful termination, inappropriate behavior, and hiring and promotional practices. 48:16-22). 39. 12). CGLIC requires its managers attend an interview workshop. (Exh. 10 at 53:8(Exh. 10 at

All managers involved in interviewing applicants are required to complete the

workshop before they are permitted to conduct interviews. (Exh. 10 at 53:8-12). This training is repeated as needed with each hiring season. (Exh. 10 at 54:12-55:2). 40. All employees, including management, receive EEO training during new-hire

orientation, both via the Internet and a live lecture. (Exh. 10 at 51:22-52:8; 56:21-57:2). 41. Employees are informed of CGLIC's EEO policies through other means. CGLIC provides an EEO statement in its application, in the

(Exh. 10 at 57:11-58:8).

employee handbook, the new hire packet, is posted throughout the building, and available through the Internet . (Exh. 10 at 57:11-58:1; 61:13-16).

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

42.

Employees are provided wallet-size cards to carry with them that provide

guidelines for ethical decision making along with the contact information for the ethics help line. (Exh. 10 at 129:8-21). 43. Each year CIGNA Corporation's CEO issues a reaffirmation statement that

reiterates CGLIC's position against discriminatory conduct and sets forth CGLIC's expectations of its employees with respect to its EEO policies. (Exh. 10 at 57:11-58:1). The reaffirmation is presented as either a letter or memoranda and is also posted in various locations throughout the Phoenix call center. (Exh. 10 at 57:11-58:1; 60:12-61:1). 44. Employee evaluations contain a specific performance objective evaluating the

fair treatment of employees. (Exh. 10 at 58:2-8). For managers, this aspect of the evaluation is referred to as "The Manager Expectation," for all others, it is "The People Expectation." (Exh. 10 at 58:2-8). Employee evaluations, including this component, are given twice per year. (Exh. 10 at 59:3-7). 45. CGLIC has the standard "Five-In-One" postings, setting forth EEO laws and

the EEOC's contact information, located in the lunchroom and near the Human Resources Department. (Exh. 10 at 61:19-62:20). 46. Ms. Santa Cruz was employed with Security Trust as of January 18, 2002, with

a starting salary of $30,000.00. (Exh. 3 at 194:15-196:19). 47. As a customer service trainee at CGLIC, Ms. Santa Cruz's starting salary

would have been $24,100.00. (Exh. 4 at 57:12-16; Deposition of Delores Nelson, attached hereto as Exhibit 11, at 51:13-17; Deposition of Tiffanie Dillard (30(b)(6)) Deposition), attached hereto as Exhibit 12, at 28:17-20). At the conclusion of the training period Ms. Santa Cruz would have received a $1.00 per hour increase, to compensate for her bilingual skills. (Exh. 1 at 151:9-16; Exh. 4 at 57:12-20). 48. Nevertheless, Ms. Santa Cruz resigned from Security Trust and became

employed with Wells Fargo on July 8, 2002. (Exh. 3 at 218:15-19). Again, Ms. Santa Cruz's starting salary with Wells Fargo was $30,000.00, in excess of the available salary range at CGLIC. (Exh. 3 at 187:24-188:1; Exh. 11 at 65:20-66:2).
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DATED this 16th day of September, 2005.

s/ Kristin R. Culbertson J. Mark Ogden J. Greg Coulter Kristin R. Culbertson LITTLER MENDELSON, P.C. Attorneys for Defendant Connecticut General Life Insurance Company

I hereby certify that on September 16, 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: Mary Jo O'Neill C. Emanuel Smith Katherine J. Kruse Equal Employment Opportunity Commission Phoenix District Office 3300 North Central Avenue, Suite 690 Phoenix, AZ 85012-9688 Attorneys for Plaintiff s/ Janice L. Johnson
Firmwide:80426736.1 042081.1007

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

Case 2:04-cv-00627-JAT

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