Free Motion for Summary Judgment - 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 MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION This is an action for pregnancy discrimination filed by Plaintiff Equal Employment

Opportunity Commission ("Plaintiff" or "EEOC") on behalf of Carmen Santa Cruz. Defendant Connecticut General Life Insurance Company1 ("Defendant" or "CGLIC") moves for summary judgment with respect to the following four issues: · The EEOC cannot sustain a cause of action for failure to hire, because it is undisputed that CGLIC never withdrew the offer of employment made to Ms. Santa Cruz;
1

CGLIC is a wholly-owned subsidiary of CIGNA Corporation. Thus, the testimony attached to the Statement of Facts and referenced herein use CGLIC and CIGNA interchangeably.

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Document 96

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

· The EEOC cannot sustain a cause of action for "constructive withdrawal" of an offer of employment; · CGLIC cannot be held liable for punitive damages because CGLIC engaged in good faith efforts to comply with Title VII; and · Ms. Santa Cruz's claim of back pay is limited as a matter of law. II. FACTUAL BACKGROUND A. Procedural History

On March 30, 2004, the EEOC filed the pending Complaint in response to a charge of discrimination filed by Ms. Santa Cruz. (SOF ¶ 1). The Complaint contains 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). (SOF ¶ 2). More specifically, the EEOC maintains that CGLIC discriminated against Ms. Santa Cruz because she was pregnant. (SOF ¶ 3). The EEOC alleges "Defendants offered Ms. Santa Cruz a position as a customer service associate, but withdrew the offer upon learning she was pregnant." In its Answer, CGLIC admits that it offered Ms. Santa Cruz a position but denies that the offer was withdrawn. (SOF ¶ 4). B. Factual History

CGLIC operates call centers responsible for fielding questions regarding healthcare coverage on behalf of various CIGNA Healthcare companies. (SOF ¶ 5). In November 2001, CGLIC had several available openings for customer service associates at its Phoenix, Arizona facility. (SOF ¶ 6). Customer service associates communicate primarily via the telephone, responding to requests for information and assistance with benefits. (SOF ¶ 6). The majority of callers request clarification or assistance with solving problems regarding member eligibility, benefit coverage, and administrative procedures relative to the healthcare benefit plans and contracts managed and/or administered by a CIGNA Healthcare company. (SOF ¶ 6). On November 8, 2001, Ms. Santa Cruz submitted an application via the Internet and mailed her resume to GCLIC. (SOF ¶ 7). On November 15, 2001, Ms. Santa Cruz

submitted an application and tested for a customer service associate position. (SOF ¶ 8).

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

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. (SOF ¶ 9). Because of the rigorous nature of CGLIC's training class, attendance is emphasized at every stage of the hiring and orientation process. (SOF ¶ 10). 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. (SOF ¶ 10). Attendance at all sessions is critical because training sessions build on one another and absent employees are unable to keep pace with the other trainees. (SOF ¶ 10). Successful completion of all elements of the training program are mandatory and an essential prerequisite to successful assumption of the duties and responsibilities of a customer service associate. (SOF ¶ 10). As with all candidates, during Ms. Santa Cruz's interview, Ms. Wroten informed her of CGLIC's attendance policy for new hires (the "90-day attendance policy"). (SOF ¶ 11). The 90-day attendance policy is as follows: Training for the Customer Service Associate position is very extensive and takes approximately 8-10 weeks. It is 8:00 a.m. to 5:00 p.m., Monday through Friday, and training is conducted in a classroom atmosphere with weekly tests and skill demonstrations to show practical application of material covered. Training is very fast-paced and requires 100% attendance, and there is no deviation from this strict schedule for the duration of training. (emphasis added)(SOF ¶ 12). In addition to conveying the 90-day attendance policy during the interview, CGLIC requires that the interviewer ask specific attendance-related questions. *State to each applicant: 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 attendance. What concerns do you have about such a rigid attendance policy? ... 100% attendance is required for new hires, how was your attendance in your last 2 positions? (ask for number of unplanned absences and tardies).
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

(SOF ¶ 13) Ms. Santa Cruz estimates that during her interview CGLIC's 90-day attendance policy was discussed with her "probably three times." (SOF ¶ 13). In response, Ms. Santa Cruz indicated she had no concerns regarding the policy. (SOF ¶ 13). Q: A: Q: A: Q: A: Q: A: (SOF ¶ 13). When Ms. Santa Cruz returned home from the interview, she had a message on her answering machine offering her the customer service associate position. (SOF ¶ 14). Ms. Santa Cruz returned the call and spoke with Sandra Gasche, Staffing Consultant.2 (SOF ¶ 15). Although there were two training classes offered, December 10, 2005 and December 17, 2005, Ms. Gasche asked that Ms. Santa Cruz begin on December 10, 2001. (SOF ¶ 16). Ms. Santa Cruz, however, expressed a preference for starting on December 17, 2005, because of a previously scheduled medical appointment, but suggested she would try to have it rescheduled. (SOF ¶ 16). According to Ms. Santa Cruz, at no time during this conversation did she disclose, nor was she asked, about the medical condition that necessitated her doctor's appointment. (SOF ¶ 17). Ms. Santa Cruz contacted the lab where she was You were told that the training was very fast paced and required 100 percent attendance, correct? Correct. And that there was a strict schedule for the duration of the training? That is correct. And you were asked if that caused you any concern? That is correct. And your reply? Was no.

scheduled for an ultrasound on December 10, 2001, and was told that it would be another month before she could reschedule. (SOF ¶ 18).
2

As a staffing consultant Ms. Gasche was responsible for sourcing candidates, testing applicants, conducting interviews, and extending offers of employment. (SOF ¶ 15)

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

In a second telephone conversation, Ms. Santa Cruz explained to Ms. Gasche that she was unable to reschedule her appointment, and requested to begin work on December 17, 2001. (SOF ¶ 19). Ms. Gasche asked about the nature of the appointment and Ms. Santa Cruz responded that she was scheduled to see a specialist. (SOF ¶ 19). Ms. Gasche asked if Ms. Santa Cruz could reschedule the appointment to take place after Ms. Santa Cruz completed her training. (SOF ¶ 19). Ms. Santa Cruz then shared that she was pregnant, and explained that she could not postpone her appointment because it was pregnancy related. (SOF ¶ 19). 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. (SOF ¶ 19). 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. (SOF ¶ 20). Notably, Ms. Santa Cruz never accepted the customer service associate position in either of these two telephone conversations. (SOF ¶ 21). In fact, she acknowledges she was not prepared to accept the position because CGLIC had not yet answered all of her questions regarding training and salary. (SOF ¶ 21). 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. (SOF ¶ 21). Q: I'm not asking whether or not she asked you. I am asking whether when you were offered the job, did you say, yes, I will take this job? No, I did not use those words. Okay. You impliedly accepted the job? That is correct. By talking to them about your start date? Correct.

A: Q: A: Q: A: (SOF ¶ 21).

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

Shortly thereafter, Heather Casey, Senior Human Resources Consultant, along with Ms. Gasche, contacted Ms. Santa Cruz. (SOF ¶ 22). 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. (SOF ¶ 23). 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 (SOF ¶ 24). At the end of this conversation, Ms. Santa Cruz asked if there was anything else that could be done. (SOF ¶ 25). For purposes of this motion, CGLIC concedes that either Ms. Gasche or Ms. Casey suggested that Ms. Santa Cruz reapply at a later time. (SOF ¶ 25).3 Ms. Santa Cruz admits that she never accepted the position during any of these conversations. (SOF ¶ 26). She 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. (SOF ¶ 26). Q: A: Q: A: Did you tell them: I'll be there on the 10th? No, I did not. Did you at any point actually tell them that you would not take the job because of the conflict with your ultrasound? No.

Although not the subject of this Motion, CGLIC contends that Ms. Santa Cruz declined the offer of employment. This, however, does not create an issue of fact because the issue before this Court is framed by the EEOC's Complaint and Ms. Santa Cruz's testimony; namely, whether the offer of employment was withdrawn.

3

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

Q:

Did you ever tell anyone that you would not take the job because your questions regarding training and salary had not been answered? No. Did you ever tell anyone that you would not take the job because of the attitude of the person you were speaking with? No. And you never told them, despite all of the things they were telling you, you would accept the job? I was never given the opportunity. How many times were you told that you were offered a job? On my message machine and on the second call. And on neither of those times did you say, yes, I accept the job, right? Not in those words, no. Okay. And you didn't take ­ you didn't say it in the last conversation either, right? I was not given an opportunity, no.

A: Q:

A: Q: A: Q: A: Q: A: Q: A: (SOF ¶ 26)

Ms. Santa Cruz testified that an adequate opportunity to accept the position required CGLIC to tell her to attend the December 10, 2001 doctor's appointment and allow her to begin training on December 17, 2001 instead of December 10, 2001. (SOF ¶ 27). Q: What opportunity, what additional opportunity did you need to accept the job other than someone telling you we're offering you a job? Her telling me that, one, its okay for me to go to my doctor's appointment on the 10th and just come into the class; two, to be offered the second date. So, in order for you to accept the job, you would have had to have been offered the second date or had been told that it was okay to come in at some other time after your ultrasound? That is correct.

A:

Q:

A:

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

Q: A:

So if you were offered one of those two, you could have accepted the job? I would have felt I was being given the opportunity.

(emphasis added) (SOF ¶ 27). More importantly, however, Ms. Santa Cruz acknowledges that CGLIC never withdrew the offer of employment. (SOF ¶ 28) Q: So is it more accurate to say that you believe that the ­ you perceived that the offer was withdrawn because of the circumstances? Yes.

A:

(emphasis added) (SOF ¶ 28). This is further supported by Ms. Gasche's testimony: Q: A: Q: A: (SOF ¶ 28). Likewise, Ms. Casey testified that the offer of employment was never withdrawn. (SOF ¶ 28). Q: A: Q: In your conversations with Ms. Santa Cruz, did you ever withdraw the offer of employment? No. In the conversation that you were involved in with Ms. Santa Cruz with Sandra Gasche, did you hear Sandra Gasche ever withdraw the offer of employment? No. Did you ever withdraw the offer of employment to Carmen Santa Cruz because of her pregnancy? Absolutely not. Did you ever withdraw the offer to Carmen Santa Cruz for any other reason? Absolutely not.

A: (SOF ¶ 28).

Instead, 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:

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

(1) during the second phone call she was asked the reason for the doctor's appointment4; (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 further that could be done, suggesting that she reapply later. (SOF ¶ 29). III. LEGAL ANALYSIS A. Summary Judgment Standard

One of the principal purposes of a summary judgment motion is to isolate and dispose of factually unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To overcome a motion for summary judgment, a plaintiff must demonstrate there is a genuine issue of material fact for each claim. Id. at 327. As the Supreme Court has explained, "the substantive law will identify which facts are material . . . [and only] disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Summary judgment is not a disfavored procedural shortcut, but rather is seen as an integral part of the Federal Rules of Civil Procedure that is designed "to secure the just, speedy, and inexpensive determination of every action." Celotex, 477 U.S. at 327. To defeat Defendant's Motion for Summary Judgment, Plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. v. Zenith Audio Corp., 475 U.S. 574, 586 (1986). Plaintiff must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. The Supreme Court has stated the party opposing summary judgment cannot simply rest on his pleadings, but must provide sufficient evidence that would allow a
4

Ms. Santa Cruz, however, acknowledges that CGLIC was not aware of her pregnancy when this question was asked. (SOF ¶ 29)

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

reasonable trier of fact to return a verdict for the non-moving party. Anderson, 477 U.S. at 247. In other words, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-250. B. The EEOC's cause of action for pregnancy discrimination must be dismissed because it cannot establish the fourth element of its prima facie case, that the offer was withdrawn.

In this case, a prima facie case of pregnancy discrimination is established by showing: (1) that Ms. Santa Cruz was pregnant; (2) that she applied and was qualified for a job for which CGLIC was seeking applicants; (3) she was offered the position; (4) that, despite her qualifications, the offer was withdrawn; and (5) that after the withdrawal of the position remained open, CGLIC continued to seek applicants from persons of Ms. Santa Cruz's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Here, however, the EEOC cannot establish the fourth element, that the offer was withdrawn. Indeed, Ms. Santa Cruz testified unequivocally that she perceived the offer was withdrawn, based on the six factors set forth above. (SOF ¶ 29). Ms. Santa Cruz's

perception that the job offer was withdrawn is insufficient as a matter of law to conclude that the job offer was, in fact, withdrawn. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; White v. City of San Diego, 605 F.2d 455, 458 (9th Cir. 1979). C. The EEOC's cause of action for "constructive withdrawal" fails as a matter of law.

Since Ms. Santa Cruz's claim stems from the perception that the offer was withdrawn, it is analogous to a cause of action for constructive discharge. (SOF ¶ 29). As the Supreme Court recently explained, an employee "who advances [a constructive discharge claim in a harassment case] must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S., 129, 124 S.Ct. 2324, 2354 (2004). Similar to a constructive discharge analysis, to find for the EEOC, this Court must find that the only conclusion Ms. Santa Cruz could draw was that CGLIC withdrew its offer of employment.

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

Although constructive withdrawal of a job offer appears to be an issue of first impression, courts, including the Ninth Circuit, have expanded the constructive discharge analysis to include actions other than resignation. Stiesberg v. State of California, 80 F.3d 353, 357 (9th Cir. 1996), citing, Altman v. Hurst, 734 F.2d 1240, 1244 (7th Cir.1984) (per curiam), cert. denied, 469 U.S. 982, 105 S.Ct. 385, (1984) (constructive demotion); Todd v. Bishop, 2005 WL 503167, at * 3 (D.Ore. March 3, 2005) (acknowledging constructive demotion); Feeney v. Dakota, Minnesota & Eastern Railroad Company, 327 F.3d 707, 717 (8th Cir. 2002) (recognizing constructive demotion); Simpson v. Borg Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999) (same); Sharp v. City of Houston, 164 F.3d 923, 93334 (5th Cir. 1999) (same); Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609, 614 (1st Cir. 1996) (same); Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309, 1313 (E.D. Ky. 1990) (requiring that the circumstances of a transfer be so intolerable that the transfer amounts to a "constructive discharge" to be actionable as an "adverse employment action."); Greenberg v. Kmetko, 840 F.2d 467, 475 (7th Cir. 1988) (en banc); Lewandowski v. Two Rivers Public Sch. Dist., 711 F. Supp. 1486, 1497 (E.D. Wis. 1989); Crawford v. ITT Consumer Financial Corp., 653 F. Supp. 1184, 1187 (S.D. Ohio 1986); Walter v. KFGO Radio, 518 F. Supp. 1309, 1313-14 (D. N.D. 1981). Circuits recognizing alternative constructive employment actions analyze them under the purview of constructive discharge. Fenney, 327 F.3d at 717. "These circuits analyze a constructive demotion as they would analyze a constructive discharge. [Internal citations omitted]. We agree with such an approach and will apply the same standards for

constructive demotion as we apply for constructive discharge." Id. Similarly, in Sharp v. City of Houston, the plaintiff held a position in an elite, horse-mounted police unit. 164 F.3d 923 (5th Cir. 1999). After the plaintiff broke the unit's "code of silence" by participating in an internal affairs investigation of her supervisors, she was subjected to retaliatory conduct by her coworkers. Id. at 927. Due to this ongoing treatment, plaintiff's only alternative was to request a position as an instructor at the police academy. Id. at 928. The Fifth Circuit upheld the jury's verdict for the plaintiff, ruling that, even though the plaintiff requested the
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A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

transfer, a jury could reasonably find that the plaintiff was constructively demoted and that this constituted an adverse employment action. Id. at 934-36. To find for the EEOC, this Court must find that the only conclusion that anyone could draw is that CGLIC withdrew the offer of employment. Ms. Santa Cruz's own testimony, however, demonstrates that even she doubted whether the offer was withdrawn. (SOF ¶ 30). Q: Those [six] things make up the entire group of information that had that made you believe that there wasn't a job offer to be accepted, right? I should have asked was the job still offered. You should have asked that? Yes, I think I should have.

A: Q: A: (SOF ¶ 30).

Moreover, Ms. Santa Cruz was aware that one "unplanned" absence would not result in her termination, therefore, should not have reasonably concluded that CGLIC would withdraw the offer of employment based on that same absence. (SOF ¶ 24) Consequently, if Ms. Santa Cruz was unsure whether the offer of employment was withdrawn then she cannot establish that the only conclusion anyone else could reach was that the offer was withdrawn. D. CGLIC cannot be held liable for punitive damages because that is contrary to CGLIC's good faith efforts to comply with Title VII.

The EEOC's Complaint includes a claim for punitive damages. (SOF ¶ 31). In response, 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. (SOF ¶ 31). Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118 (1999). Punitive damages may be awarded against a private employer who engages in intentional discrimination "with malice or reckless indifference to the federally protected rights of the aggrieved individual." 42 U.S.C. § 1981a(a)(b)(1). In Kolstad, the Supreme Court established a three-part inquiry to address the standard for permitting a jury to consider

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

punitive damages in Title VII employment discrimination matters. 527 U.S. 526, 119 S.Ct. 2118 (1999). To succeed on a claim for punitive damages, the plaintiff must: (1) prove that the employer engaged in a discriminatory practice with malice or a reckless indifference to the federally protected rights of an aggrieved individual; (2) prove that liability is properly imputed to the employer; and (3) defeat the employer's affirmative defense that it made good faith efforts to comply with Title VII. Kolstad, 527 U.S. at 534-35, 119 S.Ct. 2124025. CGLIC moves for summary judgment with respect to the third step ­ that CGLIC made good faith efforts to comply with Title VII.5 For CGLIC to establish the good-faith defense under Kolstad, it must "at least adopt antidiscrimination policies, make a good faith effort to educate its employees about these policies, and make good faith efforts to enforce the policy." Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1292 (9th Cir. 2001), citing, Cadena v. Pacesetter Corp. 224 F.3d 1203, 1210 (10th Cir. 2000); Swinton v. Potomac Corp., 270 F.3d 794, 811-12 (9th Cir. 2001); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000). According to the EEOC's own guidelines, good faith efforts to comply with Title VII may include the following:6 · Establishing, publicizing and enforcing anti-harassment policies and complaint procedures (these procedures should include a prohibition against harassment, protection against retaliation, an effective complaint process, confidentiality and an effective investigative process, and assurance of immediate and appropriate corrective action); · "[I]nstructing all of its supervisors and managers to address or report to appropriate officials complaints of harassment regardless of whether they are officially designated as complaints and regardless of whether a complaint was framed in a way that conforms to the organization's particular complaint procedures."
5

Under Kolstad, if the discriminatory actions of the managerial employees are contrary to the employer's "good faith efforts to comply with Title VII," then the employer is not liable for punitive damages for those discriminatory acts, regardless of whether the managerial employees acted with malice or reckless indifference. Kolstad, 527 U.S. at 545.

EEOC ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS (June 18, 1999), EEOC Compliance Manual (BNA) N:4075 (Binder 3), available at http://www.eeoc.gov/docs/harassment.html.

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

· Requiring "management to correct harassment regardless of whether an employee files an internal complaint, if the conduct is clearly unwelcome." · Ensuring that "supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedure." · Keeping track of "supervisors' and managers' conduct to make sure that they carry out their responsibilities under the organization's anti-harassment program." · Screening "applicants for supervisory jobs to see if any have a record of engaging in harassment." · Keeping "records of all complaints of harassment." Not only does CGLIC satisfy the minimal requirements set forth by the Ninth Circuit, but it fulfills six of the seven more stringent guidelines set forth by the EEOC, even though the EEOC's guidelines are not mandatory.7 As a threshold matter, CGLIC has an Equal Employment Opportunity ("EEO") policy, which is communicated to its employees, through the employee handbook and orientation. (SOF ¶ 32). EEO training is also offered to CGLIC employees at the Phoenix Service Center. (SOF ¶ 33). With respect to management, training includes informal briefings and live instruction. (SOF ¶ 34). For instance, in 2004, CGLIC conducted two live instructor-led management training sessions. 8 This first training session covered CGLIC's affirmative action plan and lasted approximately two hours. (SOF ¶ 35). The seminar covered CGLIC's affirmative action goals, suggestions on reaching those goals, and the manager's role in achieving those goals. (SOF ¶ 35). Notably, 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. (SOF ¶ 36). The second management training seminar, HR 101, provides training on discrimination avoidance, harassment avoidance, the Americans CGLIC does not currently screen supervisory applicants for prior complaints of harassment. Tiffanie Dillard, Human Resources Director, could not recall the exact number of live management training seminars prior to 2004, but she testified that CGLIC consistently provides structured EEOC training to its managers at least annually. (SOF ¶ 35).
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LITTLER MENDELSON
A PROFESSIONAL CORPORATION Camelback Esplanade 2425 East Camelback Road Suite 900 Phoenix, AZ 85016 602.474.3600

with Disabilities Act, among other EEO policies, and lasts approximately six hours. (SOF ¶ 37). In addition, managers are required to attend Civil Treatment, a CGLIC sponsored course, before they are promoted or hired as a manager. (SOF ¶ 38). Civil Treatment is a two-day session devoted to EEO issues, primarily equal treatment of all employees. (SOF ¶ 38). More specifically, Civil Treatment addresses discrimination, wrongful termination, inappropriate behavior, and hiring and promotional practices. (SOF ¶ 38). In addition to Civil Treatment, CGLIC requires its managers to attend an interview workshop. (SOF ¶ 39). All managers involved in interviewing applicants are required to complete the workshop before they are permitted to conduct interviews. (SOF ¶ 39). This training is repeated as needed with each hiring season. (SOF ¶ 39). All employees, including management, receive EEO training during new-hire orientation, both via the Internet and a live lecture. (SOF ¶ 40). Moreover, employees are informed of CGLIC's EEO policies through other means. (SOF ¶ 41). CGLIC provides its EEO statement in its application, in the employee handbook, the new hire packet, and it is posted throughout the building and available through the Intranet. (SOF ¶ 41). Employees are provided wallet-sized cards to carry with them that provide guidelines for ethical decision-making along with the contact information for the ethics help line. (SOF ¶ 42). Each year the 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. (SOF ¶ 43). The reaffirmation is presented as either a letter or memorandum and is posted in various locations throughout the Phoenix call center. (SOF ¶ 43). Employee evaluations contain a specific performance objective

evaluating the fair treatment of employees. (SOF ¶ 44). For managers, this aspect of the evaluation is referred to as "The Manager's Expectation," for all others, it is "The People Expectation." (SOF ¶ 44). Employee evaluations, including this component, are given twice per year. (SOF ¶ 44). Finally, CGLIC has the standard "Five-In-One" postings, setting forth

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

EEO laws and the EEOC's contact information, located in the lunchroom and near the Human Resources Department. (SOF ¶ 45). CGLIC provides significantly more information and training regarding EEO matters than is required by the Ninth Circuit to establish that it complies with Title VII. Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1292 (9th Cir. 2001), citing, Cadena v. Pacesetter Corp.,224 F.3d 1203, 1210 (10th Cir. 2000); Swinton v. Potomac Corp., 270 F.3d 794, 811-12 (9th Cir. 2001); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000). Consequently, as a matter of law, CGLIC is entitled to summary judgment on the EEOC's claim for punitive damages. E. Ms. Santa Cruz's back pay damages terminates as a matter of law.

The purpose of the back pay award is to make persons whole for injuries suffered because of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362 (1975). For purposes of determining back pay, the Court must consider the difference between the amount Ms. Santa Cruz would have received in absence of the discriminatory practice and the amount she actually received when she commenced employment. Id. at 418, 95 S.Ct. at 2372; Di Salvo v. Chamber of Commerce of Greater Kansas City, 416 F. Supp. 844 (D.C. Mo. 1976). As a matter of law, Ms. Santa Cruz's lost wages claim terminates effective January 18, 2002, when she became employed at Security Trust with a starting salary of $30,000.00.9 (SOF ¶ 46). As a customer service trainee with CGLIC, Ms. Santa Cruz's starting salary would have been $24,100.00. (SOF ¶ 47). 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. (SOF ¶ 47). Regardless, at CGLIC, Ms. Santa Cruz would earn significantly less than she was earning at Security Trust. (SOF ¶ 47).

The exact date Ms. Santa Cruz began with Security Trust is unknown, however, records produced by the EEOC reflect she was employed at Security Trust as of January 18, 2002. (SOF ¶ 46).

9

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

Nevertheless, Ms. Santa Cruz resigned from Security Trust and became employed with Wells Fargo on July 8, 2002. (SOF ¶ 48). Again, Ms. Santa Cruz's starting salary with Wells Fargo was $30,000.00, in excess of available salary range at CGLIC. (SOF ¶ 48). As a matter of law, back pay damages, therefore, only include five weeks of lost earnings, calculated from the start date she was offered at CGLIC, December 10, 2001, and terminate when she became employed with Security Trust as of January 18, 2002. IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court grant its Motion for Summary Judgment and dismiss Plaintiff's Complaint in its entirety. 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:80345347.1 042081.1007

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