United States District Court, D. Arizona
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Andrea Gail Baran, Christopher Robert Houk, Mary Joleen O'Neill, Equal Employment Opportunity Commission, James P. Driscoll-Maceachron, Nancy Eileen Griffiths, U.S. EEOC, Phoenix, AZ, for Plaintiff.
Richard Seth Cohen, Victoria R. Torrilhon, Amy Jo Gittler, Jackson Lewis LLP, Phoenix, AZ, for Defendant.
G. MURRAY SNOW, District Judge.
Pending before the Court is Defendant Swissport Fueling, Inc.'s (" Swissport" ) Motion for Summary Judgment. (Doc. 239.) Also pending are the Equal Employment Opportunity Commission's (the " EEOC" ) Motion to Strike (Doc. 279) and Motion for Leave to File Surreply (Doc. 280). For the reasons discussed below, Swissport's Motion for Summary Judgment is granted in part and denied in part. The EEOC's Motion to Strike Reply is granted in part and denied in part, and its Motion for Leave to File Surreply is denied as moot.
Defendant Swissport provides fueling services to over twenty airlines at Sky Harbor Airport in Phoenix, Arizona. (Doc. 235 at ¶ 1.) Swissport hires fuelers to perform a variety of tasks at the airport, but their main job is to attach fuel lines to planes and monitor them to ensure that they receive the requisite amount of fuel. ( Id. at ¶ 2.) During the time period relevant to this suit, Swissport employed fuelers who had emigrated from various countries in Africa, including Sudan, Nigeria, Ghana, and Sierra Leone. (Doc. 1 at 1; Doc. 269 at 2.)
The EEOC brought this suit in November 2010 alleging that Swissport had subjected the African fuelers to illegal and discriminatory treatment in the workplace. (Doc. 1 at 1.) The EEOC alleges that Christian Pelkey, a Swissport manager, was primarily responsible for the fuelers' complaints of verbal abuse, which included calling the fuelers " monkey" and referring
to their food as " monkey soup." (Doc. 269 at 2-3.) The allegations also state that Pelkey ridiculed the fuelers' national origins, yelled and cursed at them, and generally treated them more harshly than their non-African counterparts. ( Id. at 3.) The EEOC alleges that other supervisors also subjected the African fuelers to racially discriminatory treatment, though not to the same extent as Pelkey. ( Id. )
In April 2007, a group of African fuelers signed a petition to Jim Vescio, Swissport's general manager, complaining about Pelkey's racist behavior. (Doc. 266-71.) Afterward, eighteen of the fuelers who had signed the petition filed charges of discrimination with the EEOC, alleging harassment, disparate treatment, and retaliation. ( See Doc. 235-28.) The EEOC investigated these allegations over the course of the next three years, requesting and receiving from Swissport over 3000 documents regarding Swissport's employment practices. ( Doc. 243 at 2.) Through obtaining these documents, the EEOC possessed the identities and contact information for all potential class members in this suit. ( Id. at 8.) However, as discussed below, the EEOC did not disclose to Swissport the identities of all the claimants on whose behalf it sought relief, and in some cases did not even contact them, until after it brought suit. In June 2010, the EEOC issued letters of determination (" LODs" ) for only the eighteen fuelers who had initially filed charges, finding reasonable cause to believe that they had been subjected to harassment, disparate treatment, and retaliation in the workplace. (Doc. 235-29.)
Swissport and the EEOC attempted to conciliate the unlawful practices beginning in June 2010. (Doc. 235-32 at 81.) They exchanged a series of letters in which the EEOC made monetary demands and Swissport responded with requests for more information with which to evaluate its liability. (Doc. 269 at 42.) In these letters, the EEOC requested damages on behalf of the eighteen charging parties, as well as nine unidentified class members for whom reasonable cause LODs were never issued. (Doc. 235-32 at 96.) The letters culminated in an in-person meeting conducted at the EEOC offices, ( id. ), but conciliation ultimately failed in September 2010, (Doc. 266-94 at 1). Thereafter, the EEOC filed suit against Swissport on behalf of the fuelers, alleging that since at least May 2005, Swissport has engaged in unlawful employment practices such as hostile work environment, failure to correct, failure to promote on the basis of race, retaliation, and constructive discharge. (Doc. 1 at ¶¶ 6-11.)
At the scheduling conference held in this conference a number of months after the EEOC filed the complaint, the EEOC identified seventeen charging parties, though it indicated that it was investigating twenty additional potential claimants. ( Doc. 243 at 3.) The Court granted the EEOC sixty days from the date of the scheduling conference to add claimants in addition to the seventeen already identified. (Doc. 18 at ¶ 2; Doc. 243 at 4.) By
the end of that deadline, on June 28, 2011, the EEOC had identified only nine additional claimants but stated that it was now aware of seventy-five potential claimants none of whom it identified. ( Doc. 243 at 4.) It indicated, in a Motion for Extension of Time filed on June 28, that in May of 2011 it had sent letters to 188 fuelers for whom Swissport had provided contact information in 2008, and sought additional time to investigate and identify these additional parties. ( Id. ) The Court allowed the EEOC to continue its investigation on the condition that it would have to show good cause for its delay in adding any claimants who were not identified by the June 28 deadline. ( Id. at 6-7.) Ultimately, the Court permitted the EEOC to add twelve claimants in addition to the seventeen initially identified and the nine identified by June 28. ( Id. at 10-18.) 
Swissport now contends that it is entitled to summary judgment on the following grounds: (1) the EEOC failed to conciliate in good faith, (2) the EEOC has failed to muster sufficient evidence to support the hostile work environment claims of twenty-four of the twenty-six claimants, (3) Olai-Chu's failure to promote claim is outside the scope of the EEOC's initial LOD, (4) the EEOC alleges retaliation and constructive discharge claims that were not pled in the Complaint, (5) two claimants are time-barred, (6) the EEOC has not met the standard for punitive damages, and (7) the EEOC does not have sufficient evidence to support the unlawful retaliation claims of eight of its claimants.
I. Motion to Strike
With its Reply (Doc. 275), Swissport attached three appendixes: an appendix of sham affidavits (Doc. 275-1), an appendix of evidentiary objections (Doc. 275-2), and an appendix of misinterpretations (Doc. 275-3). Swissport also filed a Supplemental Statement of Facts in Support of its Motion for Summary Judgment, (Doc. 276), along with five new exhibits, in addition to the Statement of Facts and exhibits originally filed with its Motion for Summary Judgment. The EEOC has moved to strike all three appendixes and the Supplemental Statement of Facts. (Doc. 279.)
The Local Rules do not provide for additional exhibits attached to replies in support of summary judgment or for a separate response to the non-moving party's statement of facts. B2B CFO Partners, LLC v. Kaufman, 856 F.Supp.2d 1084, 1086-87 (D.Ariz.2012). " This is consistent with the moving party's need to show no genuine issue of material facts exists and that there is no need for a trier of fact to weigh conflicting evidence...." Id. (citing EEOC v. TIN Inc., No. CV-06-1899-PHX-NVW, 2008 WL 2323913, at *1 (D.Ariz. June 2, 2008), rev'd on other grounds, 349 Fed.Appx. 190 (9th Cir.2009)).
The moving party may set forth objections to the responsive statement of facts, and those objections " may be set forth in a separate reply statement of facts, but that filing may not introduce new facts or evidence. " Larson v. United Natural Foods W., Inc., No. CV-10-185-PHX-DGC, 2010 WL 5297220 at *2 (D.Ariz. Dec. 20, 2010) (emphasis in original).
In response to the EEOC's Motion to Strike, Swissport argues that this Court has, in all previous cases, erroneously interpreted the Local Rules to prohibit external documents submitted with replies. (Doc. 282 at 2.) Swissport argues that the language of Local Rule 7.2(m)(2) supports its interpretation that external documents attached to replies are, in fact, permitted. That Rule, however, states only that an objection may be made to a statement of facts filed with a party's responsive memorandum. The documents attached by Swissport to its Reply go beyond objections, setting forth new statements of fact and new exhibits to support those statements.
As discussed above, new evidence is flatly prohibited in a reply in support of summary judgment. The EEOC's Motion to Strike is therefore granted on Swissport's Supplemental Statement of Facts. Swissport's appendix of evidentiary objections, however, is permitted by Local Rule 7.2(m)(2), and the EEOC's Motion to Strike is denied as to that appendix. Conversely, Swissport's appendix of misinterpretations appears to be an attack on the weight and credibility of the testimony of the claimants in this case. Swissport's burden on summary judgment is to show that no material issue of fact exists, not to dispute credibility. The appendix of misinterpretations is therefore stricken. Finally, Swissport's sham appendix will be construed as an objection permitted under Local Rule 7.2(m)(2), as it pertains to information allegedly previously undisclosed by the EEOC. The EEOC's Motion to Strike, therefore, is granted as to the Supplemental Statement of Facts and the appendix of misinterpretations, but denied as to the appendix of evidentiary objections and sham appendix.
II. Swissport's Evidentiary Objections
Attached to Swissport's Reply are evidentiary objections to the EEOC's Statement of Facts. Swissport organizes its objections into five categories: hearsay, irrelevant, vague and ambiguous, lack of foundation, and speculation. (Doc. 275-2.)
A court may only consider admissible evidence in ruling on a motion for summary judgment. Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir.2006). However, objections to evidence as " irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself." Harris Technical Sales, Inc. v. Eagle Test Sys., Inc., 06-02471-PHX-RCB, 2008 WL 343260 at *3 (D.Ariz. Feb. 5, 2008) (citing Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D.Cal.2006)). Since a district court may not rely on irrelevant facts, legal conclusions, or speculations on a motion for summary judgment in the first place, Swissport's evidentiary objections on those grounds are superfluous. See id. In addition, objections that evidence is vague or ambiguous go to the weight of the evidence, an issue that is properly before a jury. As such, it is improper to exclude such evidence at the summary judgment stage. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010).
Swissport objects to seventy of the EEOC's fact statements on the ground of hearsay. (Doc. 275-2 at 1.) Of these, four 
are not supported by the evidence submitted by the EEOC, so they will not be considered in this Motion for Summary Judgment. Twenty-seven are statements made by a person other than the sworn declarant and fall into the category of hearsay. See Fed.R.Evid. 801(c). These twenty-seven statements also will not be considered. Five of the statements objected to include statements made by a person other than the declarant, but appear to be asserted for the purpose of establishing Swissport's knowledge of Pelkey's behavior rather than to establish the fact of Pelkey's behavior itself. As such, the Court will consider these statements, but only for the limited purpose of determining Swissport's knowledge of Pelkey's behavior. The remaining thirty-four statements do not appear to be hearsay, and Swissport's objections to them are denied.
Swissport also objects to 117 of the EEOC's fact statements for lack of foundation. (Doc. 275-2 at 2.) Of these objections, twenty-two  overlap with the legitimate hearsay objections discussed above and will not be considered in deciding this Motion. One of them, Statement 498, cites to evidence that does not exist in the record, and will not be considered.
The remainder of Swissport's objections are to statements by the fuelers that generally state that Pelkey treated the African fuelers worse than he treated white or Hispanic fuelers. Swissport argues that these statements lack foundation as to personal knowledge because it is " impossible for an employee to make sweeping statements that others were never criticized or yelled at." (Doc. 275 at 23.) However, the statements to which Swissport object appear to be made on the basis of each fueler's personal observations. (Doc. 264 at ¶ 535 (statement by Dodor that he did not personally hear Pelkey say harassing things to white or Mexican fuelers); ¶ 548 (statement by Mil that he never saw Pelkey treat the white or Hispanic fuelers the way he treated the African fuelers); ¶ 555 (statement by Olai-Chu that he never heard Swissport managers insult white or Hispanic fuelers); ¶ 563 (statement by Imeah that he did not see Pelkey treat a white fueler in the same way Pelkey treated African fuelers); ¶ 565 (statement by Aculey that he personally noticed that Pelkey treated him and the other African fuelers differently than he treated the white and Hispanic fuelers); ¶ 811 (recounting an incident personally involving Aba); ¶ 821-22 (describing Yusuf's reaction to Pelkey's behavior during an incident at which Yusuf was present); ¶ 911 (statement by Torue that Pelkey treated him and other African fuelers worse after a complaint was submitted); ¶ 935 (statement by Davison that he was in the meeting where the leave policy had changed); ¶ 967 (statement by Korsi describing his experience in applying for a promotion); ¶ 968 (statement by Korsi explaining his reasons for resigning); ¶ 989-95 (describing Dodor's personal experience after he was suspended)). As a whole, it is not implausible that the African fuelers may have observed Pelkey interacting with white and Hispanic fuelers and noticed differences in treatment between those fuelers and themselves.
Swissport also appears to argue that because the fuelers often worked in isolated conditions, they could not possibly know how Pelkey treated the other fuelers. The logical flaw in this argument is
apparent— just because the fuelers often worked alone does not mean that the fuelers were always alone; indeed, a large number of the allegations against Swissport involve situations where many fuelers were congregated in the break room. As such, the remainder of Swissport's evidentiary objections on the basis of lack of foundation are not viable, and the Court will consider the ninety-four statements that are not hearsay and not missing from the record in deciding the Motion for Summary Judgment.
III. Sham Affidavit Doctrine and Motion for Leave to File Surreply
In its Reply, Swissport argues that the EEOC's case should be dismissed because the EEOC submitted a series of declarations by the claimants which Swissport asserts are shams. (Doc. 275 at 10-12.) The EEOC seeks leave to file a surreply so that it may have a chance to address Swissport's sham affidavit argument. (Doc. 280 at 2.)
Pursuant to the sham affidavit doctrine, a party cannot avoid summary judgment by creating " an issue of fact by an affidavit contradicting [its] prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). Swissport contends that seven of the twenty-eight declarations filed by the EEOC in support of its Response are shams and that the Ninth Circuit has approved of dismissal as a sanction for a party's use of sham affidavits. (Doc. 275 at 11-12.) In fact, the only case cited by Swissport in support of its position involves the Ninth Circuit upholding dismissal of a case against a party that falsified depositions. See Combs v. Rockwell Int'l Corp., 927 F.2d 486, 488 (9th Cir.1991). None of the Ninth Circuit cases reviewed by this Court addressed dismissal as a sanction for a sham.
In any event, it does not appear that the EEOC filed sham affidavits in this case. The sham affidavit rule is applied with caution because " it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment." Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012). The party offering the affidavits " is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009) (internal quotations omitted). Nor is an affidavit a sham if it contains " minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence." Id.
To justify invocation of the sham affidavit rule, " the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous." Id. For example, the Ninth Circuit upheld a district court striking sham affidavits where the deponent could not remember the answers to approximately 185 questions in his deposition, but suddenly recalled them " with perfect clarity" in his declaration submitted with his response to the motion for summary judgment. Yeager, 693 F.3d at 1080.
Here, Swissport attaches a Sham Appendix setting out in chart form the inconsistencies it believes demonstrate that the EEOC's declarations are shams. However, the statements in the declarations do not contradict the declarants' previous deposition testimony enough to justify applying the sham affidavit doctrine. Some statements refer to inconsistencies that are immaterial, such as whether other people were present when Pelkey made a particular statement. (Doc. 275-1 at 1.) Other statements are found in declarations by declarants who were never deposed, and thus have no prior testimony to contradict.
( Id. at 2, 6, 7.) Still more statements have no apparent contradiction to deposition testimony; Swissport argues that these statements are contradictory because the incidents they describe were not mentioned in the declarants' depositions. Though a glaring lack of memory can lead to a finding that an affidavit is a sham, as in Yeager, the omissions by the declarants here do not rise to the extreme level of forgetfulness exhibited by the declarant in that case. The declarants appeared merely to have struggled in their depositions to remember events that occurred many years ago. As such, the Court is reluctant to attribute to the declarants the malicious state of mind that undergirds the sham affidavit rule. The EEOC's Complaint will not be dismissed on the ground that it submitted sham affidavits, and the twenty-eight declarations submitted by the EEOC will be considered in deciding the motion for summary judgment. In light of this, it is not necessary for the EEOC to file a surreply to address the sham affidavit argument, and the EEOC's Motion for Leave to File Surreply is denied as moot.
IV. Motion for Summary Judgment
A. Legal Standard
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows " that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be " such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, " show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material, and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, the evidence must be " such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Because " [c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir.1999) (" Issues of credibility, including questions of intent, should be left to the jury." ) (citations omitted).
Furthermore, the party opposing summary judgment " may not rest upon the mere allegations or denials of [the party's]
pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also LRCiv. 1.10( l )(1) (" Any party opposing a motion for summary judgment must ... set[ ] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party." ). If the nonmoving party's opposition fails to specifically cite to materials either in the court's record or not in the record, the court is not required to either search the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir.1988).
B. Hostile Work Environment
Title VII of the Civil Rights Act of 1964 makes it " an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Title VII guarantees " the right to work in an environment free from discriminatory intimidation, ridicule, and insult." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir.2004) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Thus, " a workplace in which racial hostility is pervasive constitutes a form of discrimination." Id. (quoting Woods v. Graphic Commc'ns, 925 F.2d 1195, 1200 (9th Cir.1991)).
To determine whether conduct was sufficiently severe or pervasive to violate Title VII, a court must consider " all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509, reh'g denied, 533 U.S. 912, 121 S.Ct. 2264, 150 L.Ed.2d 248 (2001)). In addition, " [t]he working environment must both subjectively and objectively be perceived as abusive." Id. However, the allegations of hostile conduct are to " be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff." McGinest, 360 F.3d at 1115.
Swissport asserts that it is entitled to summary judgment for two reasons: (1) the conduct alleged by the EEOC was not racial in nature, and (2) the conduct was not severe enough to constitute a hostile work environment. Swissport also argues that the EEOC's burden is to present evidence of each element of the hostile work environment claim for each individual claimant, rather than presenting evidence of a hostile work environment existing in the aggregate. (Doc. 239 at 4-6.) Swissport cites an array of cases from outside of the Ninth Circuit in support of this argument. ( See id. at 5.) The EEOC does not expressly dispute ...