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Perticone v. Bell Motors LLC

United States District Court, D. Arizona

January 9, 2018

Mark Perticone, Plaintiff,
v.
Bell Motors LLC, et al., Defendants.

          ORDER

          David G. Campbell, United States District Judge

         Plaintiff Mark Perticone filed a complaint against Defendant Bell Motors LLC for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Doc. 1-1. Defendant moves for summary judgment on all claims (Doc. 41), and Plaintiff moves for summary judgment on Defendant's Faragher/Ellerth affirmative defense (Doc. 43). The motions are fully briefed, and no party requests oral argument. For the reasons that follow, the Court will deny both motions.

         I. Background.

         Plaintiff worked as a car salesman at Defendant's dealership from February to September 2013. Doc. 42-1 at 50; Doc. 49 at 13. This position required him to “[p]rospect on a day-to-day basis by phone[.]” Doc. 42-1 at 3, 19. In practice, supervisors asked salesmen to contact prospective customers approximately every three days. Doc. 42-1 at 21.

         Plaintiff is a Baptist who believes that Sunday is a day of rest for all people. See Doc. 42-1 at 20-22, 25; Doc. 50-1 at 15. But Defendant requires all of its salesmen to work on Sunday. Doc. 50-1 at 14. So when he interviewed for the position, Plaintiff informed his manager that he could work on Sunday, but he would not make unsolicited sales calls on Sunday. Doc. 42-1 at 20, 26; Doc. 50-1 at 16. His religious beliefs prevented him from interrupting others' observance of the day of rest. Doc. 42-1 at 20-21; Doc. 49 at 24. General sales manager Frank Stevens and desk manager Neil Lyons were informed of this arrangement. Doc. 42-1 at 30-31, 33.

         On Sunday, September 1, 2013, Mr. Lyons told Plaintiff to make unsolicited calls to prospective customers. Doc. 42-1 at 29. When Plaintiff protested, Mr. Lyons expressed frustration and left to get Mr. Stevens. Doc. 42-1 at 29; Doc. 50-1 at 51. Minutes later, Mr. Stevens arrived and stated something to the effect of “I do not give a f--- about your religion. Get on the phones, or you are fired.” Doc. 42-1 at 29-30. Plaintiff was not otherwise forced to make the calls. Doc. 42-1 at 52. Intending to file a complaint, Plaintiff called Human Resources specialist Janice Jordan later that day. Doc. 42-1 at 34; Doc. 44-4 at 3. He left a voicemail requesting a call back about an interaction with his supervisor that morning. Doc. 42-1 at 35-36. Another salesman who joined in Plaintiff's protest left a voicemail for Human Resources as well. Doc. 42-1 at 98-99.

         At all times relevant to this case, Defendant had an anti-discrimination policy that provided multiple avenues to report harassment. Doc. 42-1 at 59-95. This policy required Defendant to “investigate claims of harassment thoroughly and promptly, ” and release the information it gathered only on a “need to know” basis. Doc. 44-6 at 8. And it provided for different methods of resolution depending on the nature and severity of the complaint. Doc. 44-4 at 6. For routine personnel conflicts, Human Resources could rely on local management to resolve the issue. Doc. 44-6 at 6. But for more severe complaints of discrimination, Human Resources, the Legal Department, or the Business Ethics Committee would get involved. Doc. 44-6 at 6.

         Ms. Jordan never returned the calls of Plaintiff or his co-worker to determine the nature of their complaints, their severity, or the need for confidentiality. Doc. 50-1 at 58, 62. She did alert general manager Eric Zimmerman about the voicemails. Doc. 50-1 at 57-58. When she visited the dealership on September 3, 2013, Mr. Zimmerman told her that he had handled the situation. Doc. 50-1 at 59. She did not follow up with Plaintiff to encourage him to report any acts of retaliation. Doc. 50-1 at 68.

         On September 4, 2013, Mr. Stevens called Plaintiff into his office to discuss his performance. Doc. 42-1 at 36. At the end of the meeting, Mr. Stevens told Plaintiff that he had listened to the voicemail Plaintiff left for Human Resources. Doc. 42-1 at 37. Mr. Stevens directed Plaintiff to report any further complaints to him, not Human Resources. Doc. 42-1 at 37. When Plaintiff asked what to do if he needed to file a complaint against him, Mr. Stevens smirked and said “We're done. Get out.” Doc. 50-1 at 44-45.

         After September 1, 2013, Plaintiff began to suffer hostile treatment from co-worker J.P. Hah. Doc. 42-1 at 38-40. Mr. Hah was not well-liked at the dealership because he often stole customers from other salesmen. Doc. 42-1 at 39, 47, 108-09. Despite the fact that they had been friendly before September 1, Mr. Hah began giving Plaintiff dirty looks and cursing at him. Doc. 42-1 at 38-40, 44-45, 49. Plaintiff complained about this treatment to Mr. Stevens and Mr. Lyons. Doc. 42-1 at 38, 52; Doc. 50-1 at 34. Mr. Stevens responded by telling Plaintiff that if he sold 20 or more cars per month like Mr. Hah, then Stevens would discipline Mr. Hah. Doc. 50-1 at 34. Plaintiff averaged only about 13 to 15 cars per month. Doc. 50-1 at 34.

         On September 5 or 6, 2013, Plaintiff helped one of Mr. Hah's customers purchase a vehicle because Mr. Hah was not at work. Doc. 50-1 at 28. As was customary, Plaintiff completed the deal paperwork to reflect that he and Mr. Hah should split the commission. Doc. 42-1 at 42-43; Doc. 50-1 at 31. Mr. Hah complained to Mr. Stevens, who took Plaintiff's name off the deal. Doc. 42-1 at 42-43; Doc. 50-1 at 28-30. Another manager confirmed to Plaintiff that what Mr. Stevens did was not right, but that he had no authority to overrule the general sales manager. Doc. 42-1 at 41.

         On September 20, 2013, Plaintiff witnessed Mr. Hah scratching his name off the rotation list for new customers. Doc. 42-1 at 48-49. When Plaintiff confronted him, Mr. Hah admitted to doing it and suggested that they could handle the disagreement with a physical altercation outside. Doc. 42-1 at 48-50. Plaintiff immediately quit his position at Defendant's dealership. Doc. 42-1 at 50; Doc. 50-1 at 39.

         Later that day, Mr. Lyons asked Plaintiff to come back to work. Doc. 42-1 at 114. Plaintiff declined, explaining:

Too much stuff has happened since I started her[e.] JP has a problem with a lot of [p]eople. [H]e cost me money this week by taking my name off the list[, ] and Lenny got my up and got a deal on a [G]rand Cherokee[.] [T]hat was my deal[.] JP harasses me all the time[.] I told you guys plenty of times[, ] and nobody did nothing [sic] about it[.] [T]hanks and have a good day[.]

Doc. 42-1 at 115. Mr. Lyons apologized for disappointing Plaintiff. Doc. 42-1 at 115.

         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). Summary judgment is also appropriate 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.” Celotex, 477 U.S. at 322. 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).

         III. Discussion.

         Plaintiff alleges three Title VII discrimination claims against Defendant: failure to accommodate, hostile work environment, and constructive discharge. Doc. 1-1 at 8-11. Plaintiff also asserts a Title VII retaliation claim. Id.

         A. Plaintiff's Discrimination Claims.

         The Ninth Circuit analyzes Title VII discrimination claims under a two-part framework:

Under the first part, [Plaintiff] must establish a prima facie case by showing that: (1) he had a bona fide religious belief, the practice of which conflicted with his employment duties . . .; (2) he informed [Defendant] of his beliefs and the conflict; and (3) [Defendant] threatened him with or subjected him to discriminatory treatment, including discharge, because of his inability to fulfill the job requirements. Once an employee establishes a prima facie case, the burden of proof then shifts to the employer under the second part of the framework to establish that it initiated good faith efforts to accommodate the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship.

Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002) (internal quotation marks and citations omitted); see also Berry v. Dep't of Soc. Servs., 447 F.3d ...


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