United States District Court, D. Arizona
G. Campbell, United States District Judge
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
Plaintiff's Discrimination Claims.
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