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Lopez v. MauiSun Computer Systems Inc.

United States District Court, D. Arizona

September 22, 2016

Lupita Lopez, et al., Plaintiffs,
MauiSun Computer Systems Incorporated, et. al., Defendants.


          Bernardo F. Velasco United States Magistrate Judge

         Pending 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").[1] The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. (Doc. 16). See 28 U.S.C. § 636(c).

         The 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.

         I. Background

         Plaintiffs Maria E. Cornejo and Yareli Sierra[2] 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 Exhs. 1-4).

         II. Discussion

         Cornejo 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.).

         MauiSun seeks partial summary judgment with regard to Cornejo's claim of sexual harassment only. (MauiSun's XMPSJ (Doc. 216, p. 1)).

         A. Standard

         Summary 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).

         Only 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).

         The 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.

         B. Evidence before the Court

         1. Sexual Harassment Claim

         At all 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).

         Cornejo, 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.").

         According 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 3")
• 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[4];" ("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;" ("Incident 8")
• "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;" ("Incident 10")
• "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 12")
• "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 13")

(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).

         Dettloff, 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."[5] (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. 2, ¶3).

         At his 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).

         2. Retaliation Claim

         The 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."[6] (Doc. 168, ¶K).

         Before 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."[7] (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.")).

         MauiSun 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 mistakes)).

         When Cornejo returned to MauiSun after her 3-day suspension, she was informed that she had been demoted and would receive a pay cut

[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.).

         MauiSun 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 exh. 6).

         C. Relevance of Reasonable Cause Determination

         After 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.[8] (See SAC, Exhs. 2, 4).

         A 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).

         Although 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).

         The 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.

         D. The cross-motions with regard to Cornejo's sexual


         Federal 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)).

         The 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 ...

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