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McCormack v. Safeway Stores Incorporated

United States District Court, D. Arizona

February 12, 2014

Mary McCormack, et al., Plaintiffs,
Safeway Stores Incorporated, Defendant.


DAVID G. CAMPBELL, District Judge.

Defendant Safeway Stores, Inc. ("Safeway") has filed a motion for summary judgment. Doc. 59. The motion is fully briefed. The Court will grant Defendant's motion.[1]

I. Background.

Plaintiffs are two women, Mary McCormack and Samantha Stabenchek, who worked as cashiers for a Safeway store in Scottsdale, Arizona. McCormack is the mother of Stabenchek. Stabenchek was 17 years old when she started work at Safeway, and appears to have been a minor during the events at issue in this case.

On March 3, 2011, Jose Lopez, a general clerk at the store, cornered Ms. Stabenchek, grabbed her buttocks, and kissed her. Doc. 41, ¶ 15. Plaintiffs allege that the assault was the culmination of months of sexual harassment in which Lopez made inappropriate comments to Stabenchek in the work place and sent her sexually explicit text messages. Id., ¶ 16; Doc. 68, ¶¶ 255-58. After the assault, McCormack reported Lopez's conduct. Stabenchek participated in Safeway's internal investigation of the assault, which led to Lopez's termination on March 26, 2011. Id., ¶¶ 19, 21.

Less than a month after reporting the sexual assault, Plaintiffs were both interviewed about McCormack's alleged violation of Safeway's coupon policy. Doc. 67 at 4. Safeway alleges that in late December 2010, a Safeway security analyst reported that it appeared as though McCormack was violating the company's coupon policies. Doc. 60, ¶¶ 168-70. The analyst allegedly discovered more evidence of coupon abuse, which she reported to a loss prevention investigator in April 2011. Id., ¶ 174. The investigator confronted Stabenchek and McCormack in connection with his investigation. McCormack was suspended pending further investigation. Doc. 59 at 9. Feeling that their honesty was impugned "on the heels" of their reports about Lopez's misconduct, Plaintiffs resigned on April 13, 2011. Doc. 67 at 5.

Stabenchek has asserted sexual harassment and retaliation claims against Safeway under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Arizona Civil Rights Act, A.R.S. §§ 41-1463 and 41-1464 ("ACRA"). McCormack has asserted retaliation claims against Safeway under Title VII and the ACRA.[2]

II. Legal Standard.

A party seeking summary judgment "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 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). 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 (1986). 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." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see Fed.R.Civ.P. 56(e). If the evidence submitted by the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50. Because credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in her favor. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

III. Harassment Claims.

Title VII provides that an employer may not "discriminate against an individual with respect to [her] compensation, terms, conditions, or privileges of employment because of [her]... sex[.]" 42 U.S.C. § 2000e-2(a)(1). Sexual harassment constitutes unlawful discrimination under Title VII. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986). If the harassing employee is the victim's co-worker, the employer may be held liable only if it was negligent in controlling working conditions. Vance v. Ball State Univ., 133 S.Ct. 2434, 2439 (2013). "In cases in which the harasser is a supervisor, ' however, different rules apply, " and the employer may be held vicariously liable. Id.

A. Vicarious Liability.

Safeway asserts that it cannot be held vicariously liable for Lopez's harassment because Lopez was not Stabenchek's supervisor. Doc. 59 at 11. "[A]n employee is a supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim." Vance, 133 S.Ct. at 2439. "The ability to direct another employee's tasks is simply not sufficient" to give rise to "supervisor" status. Id. at 2448. Instead, supervisors are a " distinct class of agent [empowered] to make economic decisions affecting other employees under his or her control.... Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates." Id. (internal quotation marks and citation omitted) (emphasis in original).

Lopez was a front end manager when Stabenchek became an employee at Defendant's Scottsdale location, but he had been demoted to general clerk by the time much of the alleged harassment took place, including the sexual assault. Doc. 60, ¶¶ 78-79, 85, 93. The distinction is not important, however, because neither front end managers nor general clerks qualify as supervisors under Vance. Front end managers and general clerks lack authority to make economic decisions affecting other employees under their control. Front end managers and general clerks are not empowered by Safeway ...

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