United States District Court, D. Arizona
ORDER AND OPINION [RE: MOTION AT DOCKET 47]
JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE
I. MOTION PRESENTED
At docket 47, defendant Arizona Regional Multiple Listing Service, Inc. (“ARMLS”) moves for summary judgment against plaintiff Marcy Rich (“Rich”) pursuant to Federal Rule of Civil Procedure 56. It supports its motion with a statement of facts at docket 48. Rich opposes at docket 54 and supports her opposition with a controverting statement of facts at docket 55. ARMLS replies at docket 56. Oral argument was not requested and would not assist the court.
Rich has been an ARMLS employee since 2002. Her lawsuit against ARMLS alleges two causes of action pursuant to Title VII of the Civil Rights Act of 1964. Claim one alleges that ARMLS has subjected her to disparate treatment and a hostile work environment based on her Jewish religion; claim two alleges that ARMLS retaliated against her for filing a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”).
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The materiality requirement ensures that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable jury could return a verdict for the nonmoving party.” However, summary judgment is mandated under Rule 56 “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
The moving party has the burden of showing that there is no genuine dispute as to any material fact. Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant. However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties’ differing versions of the truth at trial.
A. Hostile Work Environment
Count one of Rich’s complaint alleges that ARMLS managers Matthew Consalvo (“Consalvo”) and Barbara Hoffman (“Hoffman”) created a work environment that is hostile to Jewish employees. Hostile work environment claims fall within Title VII’s protections against discrimination. In order to prevail Rich must establish that (1) she was subjected to “verbal or physical conduct of a harassing nature;” (2) this conduct was unwelcome; and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” ARMLS argues that it is entitled to summary judgment because Rich cannot establish the third element-that ARMLS’ conduct was so offensive that it altered the conditions of Rich’s employment and created an abusive working environment .
When determining whether a plaintiff has presented sufficient evidence of abusive conduct, courts employ “a totality of the circumstances test” that considers the cumulative effect of the harassing conduct. Generally speaking, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” As ARMLS observes and the Supreme Court has oft stated, Title VII does not set forth a “general civility code” for the American workplace. On the other hand, a workplace that is “permeated with discriminatory intimidation, ridicule, and insult” violates Title VII’s protections against discrimination.
In order to survive summary judgment, Rich must show the existence of a genuine factual dispute as to whether her workplace “was ‘both objectively and subjectively offensive, one that a reasonable person would find hostile and one that the victim in fact did perceive to be so.’” Because ARMLS does not challenge Rich’s allegation that she was subjectively offended by her workplace conditions, the court will focus on Rich’s evidence of objective offensiveness.
Whether a working environment is objectively hostile or abusive “is not, and by its nature cannot be, a mathematically precise test.” No single factor is required; all of the circumstances must be considered. These circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive ...