United States District Court, D. Arizona
Bernardo F. Velasco United States Magistrate Judge
before the Court are: (1) Plaintiff Maria E. Cornejo's
Motion for Partial Summary Judgement as to Liability on Her
Two Claims (Doc. 214) ("MPSJ"); and (2) Defendant
MauiSun's Cross-Motion for Partial Summary Judgment
Against Plaintiff Cornejo (Doc. 216)
("XMPSJ"). The Magistrate Judge has jurisdiction
over this matter pursuant to the parties' consent. (Doc.
16). See 28 U.S.C. § 636(c).
pending motions came on for oral argument on September 8,
2016. For the following reasons, the Court denies both
motions and sets this matter for trial.
Maria E. Cornejo and Yareli Sierra have filed a Second
Amended Complaint ("SAC") against Defendants
MauiSun, FreedomSmoke USA, Inc., and FreedomSmoke USA I,
Inc., alleging: (1) workplace sexual harassment in violation
of 42 U.S.C. § 2000e-2(a) (Counts 1 (Cornejo), 3
(Sierra)); and (2) retaliation in violation of 42 U.S.C.
§2000e-3(a) (Counts 2 (Cornejo), 4 (Sierra)). (SAC (Doc.
208)). Plaintiffs also allege successor liability with regard
to both FreedomSmoke Defendants. (Id. at
¶¶ 45-66). Prior to filing this action, Plaintiffs
filed charges with the Arizona Civil Rights Division
("ACRD") and, after an investigation, the ACRD
issued a reasonable cause determination finding there was
reasonable cause to believe that unlawful discrimination had
occurred with regard to each Plaintiff. (See Id. at
moves for partial summary judgment as to liability with
regard to her claims of workplace sexual harassment and
retaliation. Although Cornejo initially sought partial
summary judgment on the issue of successor liability with
regard to the FreedomSmoke Defendants, she concedes that a
genuine issue of material fact precludes entry of summary
judgment on this issue. (Cornejo's Reply (Doc. 219, p.
2)). Therefore, Cornejo seeks partial summary judgment with
regard to Defendant MauiSun only. (Id.).
seeks partial summary judgment with regard to Cornejo's
claim of sexual harassment only. (MauiSun's XMPSJ (Doc.
216, p. 1)).
judgment is appropriate when there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The 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). The nonmoving party's evidence is
presumed true and all reasonable inferences are to be drawn
in the light most favorable to that party. Eisenberg v.
Insurance Co. of North Amer,, 815 F.2d 1285, 1289 (9
Cir. 1987); Villiarimo v. Aloha Air, Inc., 281 F.3d
1054, 1065 n. 10 (9th Cir. 2002).
disputes over facts that might affect the outcome of the suit
will prevent 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). Thus,
if the record taken as a whole "could not lead a
rational trier of fact to find for the nonmoving party,
" summary judgment is warranted. Miller v. Glenn
Miller Prods., Inc., 454 F.3d 975, 988 (9th
Cir.2006) (quoting Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). If the
burden of persuasion at trial would be on the nonmoving
party, the movant may carry its initial burden of production
under Rule 56 by producing, "evidence negating an
essential element of the nonmoving party's claim or
defense..., " or by showing, after suitable discovery,
that the "nonmoving party does not have enough evidence
of an essential element of its claim or defense to carry its
ultimate burden of persuasion at trial." Nissan Fire
& Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099,
1105-1106 (9th Cir. 2000).
Ninth Circuit instructs that "[w]hen parties file
cross-motions for summary judgment, we consider each motion
on its merits." American Tower Corp. v. City of San
Diego, 763 F.3d.l035, 1043 (9th Cir. 2014)
(citing Fair Housing Council of Riverside County, Inc. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
2001)). Further, the district "court must consider the
appropriate evidentiary material identified and submitted in
support of both motions, and in opposition to both motions,
before ruling on each of them." Fair Housing Council
of Riverside County, Inc., 249 F.3d at 1134.
Evidence before the Court
Sexual Harassment Claim
relevant times, MauiSun manufactured liquids used in
e-cigarettes and sold accessories related to electronic
cigarettes. (MauiSun's 2015 Statement of Facts in Support
of Motion for Partial Summary Judgment against Maria Cornejo
(Doc. 153), ¶l; Cornejo's 2015 Statement of Facts
(Doc. 168), ¶l). David Dettloff and Pamela
Workman-Parker own MauiSun. (Doc. 153, ¶¶2-3;Doc.
168, ¶¶ 2-3).
who was born in 1973, went to work for MauiSun in the
shipping department on or about September 15, 2010. (Doc.
153, ¶5; Cornejo's 2016 Statement of Facts in
Support of Motion for Partial Summary Judgment (Doc. 215),
¶3; Doc. 215-1, Exh. 1). In October 2010, she was
promoted to Human Resources Manager under the direct
supervision of Dettloff. (Doc. 153, ¶¶7-8; Doc.
168, ¶¶7-8). Cornejo states in her Declaration in
support of her MPS J, that between October 2010 and June 2011
while she was at work, "Dettloff repeatedly made
unwanted and offensive comments of a sexual nature to me, and
he stared at parts of my body in a leering and offensive way,
often commenting on the size and shape of my breasts. I
eventually reported this conduct to the ACRD in connection
with filing my charge . . . ." (Doc. 215, ¶8;
see also Doc. 215-1, Exh. 1 (Cornejo's sworn
statement in her ACRD charge that: "During my employment
with [MauiSun] and as recent as June 21, 2011, Dettloff
subjected me to comments of a sexual nature. Specifically, he
would comment about my breasts, and my choice of clothing. I
objected to his comments, but Dettloff did not cease.").
to the ACRD Reasonable Cause determination issued in
Cornejo's case, Cornejo testified during the ACRD
investigation about the following conduct by Dettloff:
• In October, 2010, while Cornejo was in the same room
as Sierra and Dettloff, Dettloff told Sierra, who was bent
down labeling bottles, "'wow, I thought you were
your mom, but by looking at your behind I can tell that
it's not your mom, it's you'3;" ("Incident 1")
• "Dettloff frequently commented about the clothes
worn by female employees, never mentioning anything about his
concern that the attire was inappropriate for the work
place;" ("Incident 2")
• "On March 1, 2011, when speaking of a medical
appointment, Dettloff told Cornejo that he would not be upset
if her medical appointment was for a woman's checkup and
he could be there for the examination;" ("Incident
• On March, 2, 2011, referencing Cornjeo's breasts,
"Dettloff told her they looked like two big juicy
oranges he could pick off a tree. Dettloff then made hand
motions as if he was squeezing her breasts. Dettloff laughed
when [Cornejo] told him to stop;" ("Incident 4")
• "On April 5, 2011, while Cornejo was
disconnecting a computer cable under her desk, Dettloff
walked behind the desk and commented about a tattoo on her
lower back, stating that he always wondered how far down back
her tattoo went;" ("Incident 5")
• "On April 13, 2011, after Cornejo entered the
office after speaking to her boyfriend in the parking lot,
Dettloff asked her how much she charged for hanging out in
the streets;" ("Incident 6")
• "On April 18, 2011, Cornejo told Dettloff she was
leaving work because of a severe headache. Dettloff asked her
what a doctor would ask about her headache and then told her
the doctor would check her breasts to make her feel better.
Dettloff then made squeezing motions with his hands as if he
were feeling her breasts;" ("Incident 7")
• "On April 29, 2011, Dettloff tip-toed to the
front of Cornejo's desk, looked down her blouse, and told
her that he wished he was taller so he could get a better
view. Cornejo testified that she witnessed Dettloff make the
same comment to another female coworker;"
• "On May 3, 2011, Dettloff stated that he expected
all managers to go to Monte Carlo for a meeting, meet at a
nude beach, and drink lots of alcohol so they would feel more
comfortable"; ("Incident 9")
• "On May 9, 2011, as Cornejo was preparing to
leave work, Dettloff saw her adjusting the cloth belt around
her waist and told her that if she was going to take her
clothes off she would have to stay so he could watch;"
• "On June 2, 2011, when Cornejo returned to work
after a vacation in Rocky Point, Dettloff told her that he
wanted to see her pictures from the weekend so he could see
her in a bikini, or better yet, see her without a
bikini;" ("Incident 11")
• "On June 2, 2011, Cornejo walked into the room
while Dettloff was speaking with a male coworker about penis
size. Dettloff then told Cornejo, 'I know you don't
have a penis but you have two big huge balls' in
reference to Cornejo's breasts;" ("Incident
• "On June 21, 2011, as Cornejo walked into the
office on a windy day holding her loose fitting dress to keep
it from blowing up, Dettloff told her to walk back outside
and not hold her dress so he could see what color panties she
was wearing. Dettloff then told her he, if he was lucky, she
wouldn't be wearing any panties." ("Incident
(Doc. 215-1, Exh. 2, pp. 2-3; see also Doc. 215,
¶¶8, 9). According to Cornejo, Dettloff s conduct
described above "occurred with such frequency and caused
such stress that [it] interfered with my ability to
concentrate on my job duties. I often told Dettloff that this
conduct was offensive and asked him to cease, but my requests
were all ignored, and he appeared to enjoy harassing
me." (Doc. 215, ¶9).
cites his declaration statement submitted during the ACRD
investigation, denying that he made "comments to Cornejo
about her breasts, although I did occasionally comment on her
dress because she seemed to me to be so fashionable. The
comments I made about her dress did not contain any sexual
references and certainly were not intended to convey any
sexual messages." (Doc. 216, p. 3 (citing Doc. 184-1,
Exh. 2, internal exh. 5, ¶14 (Dettloff s August 19, 2011
"ACRD declaration"))). Dettloff also submits an
August 7, 2015 declaration indicating that "[t]he
statements I made in the [ACRD] declaration were true to the
best of my knowledge at the time I made them. I did not make
any of the statements or engage in any of the conduct alleged
by Plaintiffs in their ACRD charges." (Doc. 184-1, Exh.
deposition, Dettloff denied that: in October 2010, he told
Sierra that he thought she was Cornejo, "'but by
looking at your [Sierra's] behind I can tell that
it's not your mom [Cornejo], it's you"; in April
2011, he asked Cornejo how much she charged for hanging out
in the streets, when she entered the office after speaking to
her boyfriend in the parking lot; in April 2011 when Cornejo
was leaving work because of a headache, he told her that the
doctor would check her breasts to make them feel better and
he made squeezing motions with his hands; in April 2011, he
tiptoed to the front of Cornejo's desk and looked down
her blouse saying he wished he were taller so he would get a
better view; and that he stated in May 2011 something to the
effect that he expected all managers to go to Monte Carlo for
a meeting, they would meet at a nude beach and drink lots of
alcohol. (Doc. 184-1, Exh. 1, pp. 15, 23-24). Although
Dettloff admitted that in April 2011, when he saw
Cornejo's tattoo on her lower back, he commented that he
did not know that she had a tattoo, he denied saying anything
about wondering how far it went down her back. (Doc. 184-1,
Exh. l, pp. 15, 22-24).
parties do not dispute that on July 6, 2011, Dettloff
suspended Cornejo for three days without pay for
insubordination. (Doc. 153, ¶¶24-23; Doc. 168,
¶K; Doc. 184, ¶K). Although Cornejo disputes that
she was insubordinate, it is undisputed that on July 6, 2011,
Dettloff confronted Cornejo at the office about the fact that
"you guys called [Workman-Parker] without my
permission" to inquire whether they would have the July
4th holiday off, even though they could have asked
Dettloff who was at the office when the call was made. (Doc.
153, ¶¶ 17-18, 21; Doc. 153-1, Exh. D, p. 73;
see also Doc. 153, ¶15; Doc. 168,
¶¶15, 21; see also Doc. 153-1, Exh. B, p.
44 (Operations Manager Jess Gauntt made the call)). Dettloff
went on to tell Cornejo that no one was to call
Workman-Parker when she was not in the building. (Doc. 153,
¶21; Doc. 168, ¶21). While Dettloff was speaking to
Cornejo, she turned away from him to face the other direction
until he said: "You did [sic] not give your back at me.
You turn around. I'm not done talking. Don't forget
who the owner of this company is", at which time she
turned around to face him and said, "Okay." (Doc.
153, ¶22; Doc. 153-1, Exh. A, p. 46; Doc. 168,
¶22). According to Cornejo, Dettloff accused her of
being rude and disrespectful to him, which she denied, and
she was soon suspended. (Doc. 153-1, Exh. B, p. 46; Doc.
153-1, Exh. D, p.2; see also Doc. 153-1, Exh. C, p.
3 (Dettloff informed Cornejo that if she did not "come
back with a new attitude, it's going to be three
more" days of suspension)). Cornejo asserts that she
did not turn away from Dettloff out of disrespect, but
because he had gotten close to her, was shouting in her face
"in a threatening manner and [she] became
fearful." (Doc. 168, ¶K).
leaving the office on the day she was suspended, Comejo
informed Dettloff that she and Sierra "filed a complaint
for sexual harassment against you, so it's your decision
what you want to do from now on, David." (Doc. 153-1,
Exh. C, pp. 3-4; see also Doc. 215, ¶13
("Dettloff was very angry and threatening during our
encounter on...July 6 2011, when he suspended me and I told
him about my daughter (Yareli Sierra) and I having reported
his sexual harassment to the ACRD.")).
asserts that during Cornejo's suspension, Dettloff
learned her files were in disarray and called in the
bookkeeper who later presented Dettloff with an original and
an altered petty cash log, from which Dettloff concluded that
Cornejo, who was the only person who maintained the petty
cash logs, "stole money from MauiSun and attempted to
conceal her crime by creating the forged petty cash
log." (Doc. 184-1, Exh. 2, internal exh. 5,
¶¶6-8, 10; see also Id. at ¶8 (logs
reflected that $100 was missing)). During her deposition,
Cornejo conceded that $100 was missing, but stated that she
spoke to Dettloff about it at some point and he instructed
her "to go ahead and change it, that he had probably
given it for a beer run." (Doc. 184-1, Exh. 6, p. 56
(Cornejo did not remember the date of that conversation)).
Based on Dettloff s instructions, Cornejo "went back and
...did a new petty cash log." (Id. at p. 57;
Id. at p. 58 (Cornejo also stated during the ACRD
investigation that she changed the log because it contained
Cornejo returned to MauiSun after her 3-day suspension, she
was informed that she had been demoted and would receive a
[d]ue to poor attitude and direct disrespect to owner,
(insolence) as well as discovering after outside review of HR
files grossly inadequate procedures were uncovered, i.e.,
changing of petty cash record, dis-organization of HR
department files, mismanagement of payroll resulting in
mistakes leading to extra fees charged to the company.....
(Doc. 184-1, Ex. 2, internal exh. 6). Also, on July 9, 2011,
Cornejo was suspended for three additional days for
insubordination for refusing to sign personnel action
records. (Id.). According to Dettloff,
"[d]uring the second suspension, Cornejo's managers
made the decision to terminate [her] for her conduct
including her theft from MauiSun. [He] was not involved in
the decision." (Doc. 184-1, Exh. 2, internal exh. 6,
¶12). On July 16, 2011, Cornejo was terminated. (Doc.
184-1, Exh. 2, internal exh. 5; Doc. 153-1, Exh. E). Cornejo
contends that when Operations Manager Jess Gauntt terminated
her, he said her "'services were no longer
needed' because 'the company was going in a different
direction'." (Doc. 168, ¶N). Cornejo asserts
that the July 16, 2011 Separation Notice that Gauntt signed
and gave to her indicated simply that she was:
"Discharged", (Id.; see also Doc. 153-1,
Exh. E (July 16, 2011 Separation Notice)). Cornejo further
states that she did not learn of MauiSun's accusation
that she stole petty cash until during the ACRD investigation
which occurred after her termination. (Doc. 168, ¶O).
She avows that the accusation is false. (Id.).
has submitted a July 16, 2011 Employee Separation Form,
completed by Guantt, indicating Cornejo was discharged for:
fighting on company property with "Francisco,
Yareli", insubordination, cash shortages "see
papers re: petty cash", improper conduct, falsification,
"[i]nsolence, gross negligence regarding payroll [and]
employees [sic] child support. (Doc. 184-1 Exh. 2, internal
Relevance of Reasonable Cause Determination
an investigation into the charges filed by Plaintiffs, the
ACRD issued a Reasonable Cause Determination as to each
Plaintiff, finding that there was reasonable cause to believe
that unlawful discrimination occurred. (See SAC,
Exhs. 2, 4).
reasonable cause determination "does not suggest to the
jury that the EEOC has already determined there has been a
violation. Rather, it suggests that preliminarily there is
reason to believe that a violation has taken place."
Gilchrist v. Jim Slemons Imports, 803 F.2d 1488,
1500 (9th Cir. 1986). In the Ninth Circuit,
"the plaintiff has a right to introduce an EEOC probable
cause determination in a Title VII lawsuit, regardless of
what other claims are asserted, or whether the case is tried
before a judge or jury." Plummer v. Western Intern.
Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir.
1981) (holding that the probative nature of the reasonable
cause determination outweighs the prejudicial effect it might
have on the jury). See Arizona ex rel Goddard v.
Frito-Lay, 273 F.R.D. 545, 551-52 (D. Ariz. 2011)
(applying Plummer and its progeny to ACRD reasonable
cause determination). However, the Plummer court was
clear that the defendant "is free to present evidence
refuting the findings of the EEOC and may point out
deficiencies in the EEOC determination.. ..Such evidence
would go to the weight to be given by the trier of fact to
the EEOC determination." Plummer, 656 F.2d at
505 n. 9 (citation omitted).
the Ninth Circuit has held that the EEOC's finding of
reasonable cause, after an impartial investigation, "was
sufficient at least to create an issue of fact..."
Gifford v. Atchison, Topeka and Santa Fe Ry. Co.,
685 F.2d 1149, 1156 (9th Cir. 1982), the Ninth
Circuit has also granted summary judgment in favor of the
employer where the EEOC's reasonable cause determination
was "conclusory and completely devoid of analysis."
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282-84
(9th Cir. 2000). Recognizing that EEOC reasonable
cause determination letters "are not homogeneous
products; they vary greatly in quality and factual
detail....", the Coleman court found the
reasonable cause determinations before it was insufficient to
create a genuine issue of material fact because "[i]t is
impossible from this letter to know what facts the EEOC
considered and how it analyzed them." Id. at p.
1284 (internal quotation marks and citation omitted). See
also Mondero v. Salt, 400 F.3d 1207, 1215
(9th Cir. 2005 (two-page EEOC determination, which
merely recited the allegations, without offering any
analysis, was insufficient to defeat summary judgment).
reasonable case determination in Cornejo's case is quite
thorough, setting out her allegations and summarizing
MauiSun's position and Cornejo's, Sierra's, and
Lopez's testimony. (See Doc. 215-1, Exh 2). The
determination reflected that some of Cornejo's testimony
about offensive conduct was corroborated by Lopez and went on
to identify that testimony. The ACRE) also noted that while
Dettloff denied making the offensive comments alleged by
Cornejo, Workman-Parker and MauiSun Operations Manager Gauntt
believed Dettloff made inappropriate comments in the
workplace. In this case, the ACRD reasonable cause
determination is far from conclusory; instead, it discusses
in detail the evidence submitted and relied upon by the ACRD
in its analysis and ultimate conclusion.
The cross-motions with regard to Cornejo's
law prohibits employment discrimination against individuals
on the basis of sex. 42 U.S.C. §2000e-2(a)(1)
("Title VII"). "Sexual harassment is a species
of gender discrimination..." and generally falls into
two categories: hostile work environment, as Cornejo alleges
here, and quid pro quo. Brooks v. City of San Mateo,
229 F.3d 917, 923 (9th Cir. 2000) (citation
omitted). "A 'hostile work environment' occurs
when there is a pattern of ongoing and persistent harassment
severe enough to alter the conditions of employment."
Draper v. Couer Rochester, Inc., 147 F.3d 1104, 1108
(1988) (citing Meritor Sav. Bank v. Vinson, 477 U.S.
57, 66-67 (1986)); see also Harris v. Forldift Sys.
Inc., 510 U.S. 17, 21 (1993) ("When the workplace
is permeated with 'discriminatory intimidation, ridicule,
and insult, ' that is 'sufficiently severe or
pervasive to alter the conditions of the victim's
employment and create an abusive working environment, '
Title VII is violated.") (quoting Vinson, Ml
U.S. at 65, 67). To establish a prima facie case of
a hostile work environment, the plaintiff must establish
that: (1) she was subjected to verbal or physical conduct of
a sexual nature; (2) the conduct was unwelcome; and (3) the
conduct was sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive work
environment. Porter v. California Dep't. of
Corrections, 419 F.3d 885, 893 (9th Cir.
2004). Moreover, the plaintiff must establish that her
workplace was both objectively and subjectively offensive.
Nichols v. Azteca Rest. Ents., Inc., 256 F.3d 864,
871 (9th Cir. 2001). "The 'objective
severity of harassment should be judged from the perspective
of a reasonable person in the plaintiffs position,
considering 'all the circumstances.'"
Id. at 872 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998)).
Ninth Circuit has observed that "it should not take much
for plaintiff in a discrimination case to overcome a summary
judgment motion...This is because the ultimate question is
one that can only be resolved through a searching inquiry-one
that is most appropriately conducted by a factfinder, upon a
full record." Nigro v. SearsRoebuck784 F.3d 495, 499 (9th Cir. 2015) (internal
quotation marks and citations omitted)); see also
McGinest v. GTE Serv. Corp.,360 F.3d 1103, 1112
(9th Cir. 2004) ("In evaluating motions for
summary judgment in the context of employment discrimination,
we have emphasized the importance of zealously guarding an
employee's right to a full trial, since ...