United States District Court, D. Arizona
G. Campbell, United States District Judge.
Robert Frotten filed a complaint against Defendant INT
Technologies, LLC (“INT”) for discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq. (“Title
VII”). Doc. 18. INT moves for summary judgment on all
claims (Doc. 67), and Plaintiff moves for partial summary
judgment on INT's Faragher/Ellerth affirmative
defense (Doc. 69). The motions are fully briefed, and no
party requests oral argument. For the reasons that follow,
the Court will deny both motions.
Court will begin by providing a fairly detailed description
of the factual matters at issue in this case. Because the
case includes allegations of a sexually hostile work
environment, the description includes some unsavory
worked as a technical recruiter at INT from July 2015 to
April 2016. Doc. 68 at 2 ¶ 3, 4 ¶ 18; Doc. 71 at 3
¶¶ 3, 18. INT is a staffing firm, and
Plaintiff's position required him to recruit and place
qualified candidates with INT's clients for their
information technology needs. Doc. 68-1 at 5 ¶¶ 4,
6. In addition to an annual salary of $50, 000, Plaintiff
earned commissions for placing professionals. Id. at
17. His “offer of employment” letter also
entitled Plaintiff to “a non-recoverable draw against
commissions . . . of $692.31 paid biweekly for a period of 4
months from start date with a possibility of a 2 month
extension for good performance.” Id.
owned by Chris Knott (id. at 170), and a six-person
leadership team advises Mr. Knott on many business matters,
including whether to continue a recruiter's draw (Doc.
73-3 at 10, 17-18). The leadership team includes Rhonda
Rutledge, Vice President and Director of Technical
Recruiting; James Moloney, Vice President of Sales; Tamara
Ellestad, Vice President of Recruiting; Richard Krause, Vice
President of Operations; and Chris Moulton, Human Resource
Manager. Doc. 73-4 at 4; Doc. 78-7 at 2. During
Plaintiff's employment with INT, Mr. Moloney and Ms.
Ellestad were married. Doc. 68 at 2 ¶ 4; Doc. 71 at ¶
4; Doc. 73 at 2 ¶ 5; Doc 73-3 at 5.
2015, Plaintiff attended a training session in Arizona at
which employees were required to participate in an icebreaker
game prepared and organized by Ms. Moulton and Mr. Krause.
Doc. 73-1 at 42-43; Doc. 73-4 at 7-8; Doc. 73-6 at 15-20. As
part of the game, each employee had to email a
“secret” about themselves, and Mr. Krause
distributed the list of secrets during the icebreaker. Doc.
73-6 at 15-17. Employees then had to guess which employee
submitted which secret. Id. One employee submitted a
secret stating “I had sex in a convent, ” and the
other employees, including Plaintiff, had to ask each other
at the meeting if they had sex in the convent. Doc. 73-1 at
42-43; Doc. 73-6 at 15-17. Mr. Knott, Mr. Moloney, and Ms.
Ellestad were present at the ice-breaker game, and one
witness testified that they laughed at this “sex in a
convent” entry. Doc. 73-6 at 19. Plaintiff and other
employees found the entry inappropriate. Doc. 73-4 at 8; Doc.
73-6 at 18.
mandatory dinner following the training session, Plaintiff
joined a conversation with Mr. Moloney, Ms. Ellestad, and
other INT employees. Doc. 71-1 at 26-27. During the
conversation, Mr. Moloney told the group that he wanted to
get “a hand job from a midget” because “his
dick [would] look huge” in the midget's
“little hands.” Doc. 68-1 at 236; Doc. 71-1 at
26-27. Ms. Ellestad stated that she “was okay with him
sleeping with a midget because it was only half a
person.” Doc. 68-1 at 236; Doc. 71-1 at 26-27.
Plaintiff stated that Ms. Ellestad and Mr. Moloney then
proceeded to banter back and forth about midget sex. Doc.
71-1 at 26-27. After these remarks, Plaintiff recounted how
he once placed an advertisement on Craigslist seeking to hire
a midget dressed as a leprechaun to accompany him to a Saint
Patrick's Day parade. Id. at 28. Plaintiff
testified that he did not find Mr. Moloney's comments
offensive or sexually harassing, just
“inappropriate” and “weird.” Doc.
71-1 at 30. Ms. Ellestad, however, testified that Plaintiff
made the remarks about having sex with a midget. Doc. 73-4 at
16-18. Another employee present for this conversation, Chris
Baker, testified that Mr. Moloney and Ms. Ellestad made the
remarks. Doc. 73-5 at 8-11. Mr. Baker also testified that Mr.
Moloney, Ms. Ellestad, and Plaintiff laughed during this
conversation. Id. at 11.
the July 2015 training, Plaintiff - like most of INT's
recruiters - worked virtually from his home in South
Carolina, and reported to Ms. Ellestad, who resided in
Colorado. Doc. 68-1 at 5 ¶ 6. Although he worked
remotely, Plaintiff participated in weekly conference calls
with INT management, sales managers, and recruiters. Doc.
68-1 at 89; Doc. 71-6 at 10, 12. Plaintiff testified that
these conference calls were replete with “sexually
driven” and “offensive” comments, often
made by INT's leadership team and in the presence of Mr.
Knott. Doc. 71-1 at 25. For instance, during one of these
conference calls, Plaintiff testified that a male employee,
Caesar Pena, stated “I'm the third going down,
” implying that he was the third to present during the
conference call. Doc. 68-1 at 89-90. In response, Mr. Moloney
stated, “that's not what Rene said.”
Id. at 90. Mr. Knott then commented, “I told
James [Moloney] not to start drinking this early in the
day.” Id. Rene was a male employee at INT, and
Plaintiff interpreted Mr. Moloney's response as implying
oral sex between two male employees. Id. at 90, 237;
Doc. 73-6 at 31-32. He testified that he was not offended by
the comment, but “more in shock” that a senior
leader would say that. Doc. 68-1 at 91.
employees aver that inappropriate sexual banter by INT's
leadership team was commonplace on company conference calls
and occurred often in the presence of Mr. Knott. Doc. 73-2 at
2-3 ¶¶ 2-3; Doc. 71-6 at 7-12. For instance, one
recruiter, Katherine Noto, testified that before Mr. Moloney
would make a “crass” comment - whether
“sexual or about drugs” - he would ask if Ms.
Moulton, INT's Human Resource Manager, was on the call.
Doc. 71-6 at 9-11. Because employees had to say their names
when they dialed into the conference call, Ms. Noto testified
that Mr. Moloney knew Ms. Moulton was not on the call and
thus was joking before he knowingly made an inappropriate
remark. Id. at 10. She said that crass remarks
occurred on “most of the calls.” Id. at
early October 2015, after four months with INT, Ms. Ellestad
evaluated Plaintiff's work performance. Doc. 73-4 at 9.
She gave him a positive review, writing that “[i]f
[Plaintiff] continues to produce on the front end like he is,
I have no doubt that he will meet or exceed goals set out for
him. Keep up the great work[.]” Id. at 10. Ms.
Ellestad identified nothing negative about Plaintiff's
performance and attitude. Id.
October 26, 2015, Plaintiff emailed Mr. Knott, Ms. Ellestad,
and Mr. Moloney about a meeting he attended at the Veteran
Employment Summit on behalf of INT. Doc. 68-1 at 239. In his
email, Plaintiff stated that one of the attendees was married
to a military veteran. Id. Mr. Knott just replied:
“So this guy wants to get credit for f--king a veteran?
Veteran f--ker!.” Id. Plaintiff - a veteran
himself - testified he was offended and “blown
away” by these remarks. Id.
December 16, 2015, Plaintiff spoke on the phone for
twenty-five minutes with Courtney Knott, who is an INT
manager and the daughter of Mr. Knott. Doc. 68-1 at 94-97;
Doc. 73-3 at 19-20. Plaintiff contacted Courtney for an
“off the record” discussion of how to raise his
and other recruiters' concerns with her father. Doc. 68-1
at 94-96. He testified that he said his problems “were
with the Moloneys” and that he was “going to call
her father's baby ugly.” Id. at 96. By
“baby, ” he meant INT, which Mr. Knott founded.
Id. Plaintiff admitted, however, that he provided
Courtney with only “very generic examples” of the
problems he had with Mr. Moloney and Ms. Ellestad.
Id. He did not mention they were related to
“sexual . . . discrimination and the hostile work
environment [at INT].” Id. at 97. He testified
that that Courtney had “heard a lot of this”
because her boyfriend was also a recruiter at INT.
Id. He mentioned that he wanted these problems
corrected because he and a lot of the other recruiters
“were really feeling the burden.” Id. at
96. Courtney recommended that Plaintiff call Mr.
Knott directly and express his concerns, even offering to be
on the call with him. Id. Plaintiff told her he
would contact Mr. Knott by himself because he was “a
big guy.” Id. He testified that he called Mr.
Knott later that afternoon. Id.
next day, Mr. Knott called and spoke with Plaintiff for
eleven minutes. Doc. 68-1 at 96; Doc. 73-3 at 20. Plaintiff
testified that he specifically told Mr. Knott that he and
other recruiters were having problems with Ms. Ellestad and
Mr. Moloney. Doc. 68-1 at 97-98, 105. He also stated that
“there's some sexual content on some of your calls
that some people have complained about.” Id.
at 106. Before he finished saying “complained, ”
Plaintiff asserts that Mr. Knott “took over the
call” and “didn't allow [him] to
speak.” Id. Plaintiff testified that Mr. Knott
said he didn't remember any conference calls involving
the alleged sexual context (id. at 105) and
deflected discussing Ms. Ellestad and Mr. Moloney by talking
about how Plaintiff could do a “better job instead of
worrying about the members of the organization that [he is]
having problems with” (id. at 98). Plaintiff
stated he “wasn't allowed to” raise specific
examples regarding Ms. Ellestad and Mr. Moloney because Mr.
Knott would redirect the conversation when he attempted to
raise a specific example. Id. at 98-99.
Knott denies this version of the phone conversation.
Id. at 172. He testified that Plaintiff called him
because he was financially stressed. Id. at 171,
173-175. In July and October 2015, Plaintiff took two salary
advances totaling $3, 500, and as of December 11, 2015, he
had repaid $2, 500 of the salary advances through $250 wage
deductions per pay period. Id. at 150-151
¶¶ 5-7. Mr. Knott averred that, on the call, he
“sensed stress in [Plaintiff's] voice” and
that he offered, in the Christmas spirit, to forgive the
remaining $1, 000 Plaintiff owed INT. Id. at 171,
173-175; Doc. 71-3 at 3. Mr. Knott also testified that
Plaintiff “didn't seek forgiveness of the loan,
” but rather that he “offered [it] to him without
him asking because he was so obviously stressed.” Doc.
71-3 at 3. INT's Comptroller averred in a declaration
that the remaining $1, 000 was forgiven and not repaid by
Plaintiff. Doc. 68-1 at 151 ¶ 8.
testified that in January 2016, during a work phone call with
Ms. Ellestad, she described having sex with her husband on
their honeymoon. Id. at 237; Doc. 71-1 at 19-21. Ms.
Ellestad testified that she only discussed how her
husband's legs got sunburned while fishing on their
honeymoon. Doc. 73-4 at 13-14, 21-22.
in February 2016, Mr. Knott decided not to extend Plaintiff a
draw, effective March 2016. Doc. 73-3 at 14-18. Under the
terms of his offer of employment, Plaintiff received four
draws in August, September, October, and November 2015, and
INT decided to provide him a draw in December 2015, January
2016, and February 2016. Id. at 14-15. Based on both
objective and subjective factors, however, Mr. Knott decided
to discontinue Plaintiff's draw starting in March 2016.
Id. at 17-18. Mr. Knott made this decision after
consulting with his leadership team, including Ms. Ellestad.
Id. at 18; Doc. 78-1 at 8-10. Ms. Ellestad testified
that they decided to not to extend Plaintiff a draw based on
his low productivity (Doc. 78-1 at 12) whereas Mr. Knott
stated that Plaintiff's productivity was not “the
sole reason” (Doc. 73-3 at 17). Ms. Ellestad informed
Plaintiff about the discontinuation of his draw. Doc. 78-1 at
10, 12. Without a draw, Plaintiff asserts he received $1, 200
less a month. Doc. 68-1 at 17; Doc. 73 at 6 ¶ 23; Doc.
78-1 at 11.
March 2016, Plaintiff attended a training session conducted
by Ms. Ellestad in Charlotte, North Carolina. Doc. 68-1 at
61, 237. On the first day of the session, Ms. Ellestad came
over to Plaintiff's table to show him how to perform some
work-related function on his laptop. Id. at 62, 65.
While doing so, Plaintiff testified that Ms. Ellestad leaned
over and pressed her breast against his left arm.
Id. at 62-63. He alleges that he then moved his left
arm closer to his right arm to avoid having her touch him
further. Id. at 64, 237. Plaintiff testified he
moved his left arm away so that she would get “the
point that she was violating [his] personal space.”
Id. at 64. Ms. Ellestad then allegedly proceeded to
lean in closer as he pulled away so that her breast continued
to touch his arm. Id. Plaintiff testified that
incident was not “a quick brush, ” but lasted
“long enough to make [him] very comfortable.”
Id. One employee, Ms. Noto, witnessed Ms. Ellestad
leaning over and “rubbing up against [Plaintiff],
” and Plaintiff moving his chair away at least twice in
response. Doc. 73-6 at 33-34. The following day, Plaintiff
told a fellow recruiter, Mr. Baker, about the incident. Doc.
73-5 at 14. Ms. Ellestad denies rubbing her breast on
Plaintiff, testifying that it was physically impossible since
she knelt down next to him. Doc. 71-5 at 5-6.
as Plaintiff prepared to leave that training session, Ms.
Ellestad instructed him in a sexual tone to meet her in her
hotel room the following day. Doc. 71-1 at 38. Plaintiff
alleges she didn't make that statement to anyone else
(id. at 39) and that other employees laughed when
they heard the comment, understanding it to be sexually
charged (id. at 38; Doc. 71-6 at 19; Doc. 73-2 at 4
¶ 9). He testified that other recruiters made
“woo” and “ooh” grade schools sounds
following Ms. Ellestad's remark. Doc. 71-1 at 41.
Although Plaintiff and other recruiters attended a training
session in Ms. Ellestad's hotel suite the following day
(id. at 40; Doc. 78-1 at 18), he interpreted that
statement as sexual in nature because of the earlier
breast-rubbing incident (Doc. 71-1 at 38, 40-41). Ms.
Ellestad, however, testified that she told all recruiters
which hotel room to report to the following day and that no
one laughed when she told Plaintiff to report to her hotel
room. Doc. 78-1 at 18.
March 10, 2016, Ms. Noto emailed Plaintiff about an incident
at an INT work dinner on March 3 in Charlotte, North
Carolina. Doc. 68-1 at 240. In her email, Ms. Noto stated
that Mr. Moloney “pretended to undue [sic] his
belt” in front of her and another co-worker while
remarking, “I am going to show Katherine [Noto] how to
keep her job.” Id. She concluded by stating
that she was “[i]ncredibly offended” and
“upset” by Mr. Moloney's conduct.
March 14, 2016, Plaintiff alleges that Mr. Knott called him
after work to discuss his performance. Doc. 68-1 at 238; Doc.
73-1 at 73-74. According to Plaintiff, Mr. Knott proceeded to
tell him that he “had grown a reputation as being hard
to work with among senior leadership” and that he was
being placed on a performance plan despite having met his
quarterly goals. Doc. 68-1 at 238; Doc. 73-1 at 73-74. When
Plaintiff asked why he developed this reputation, Mr. Knott
did not answer. Doc. 73-1 at 73-74. Plaintiff believes Mr.
Knott took this course of action because he complained about
INT's work environment. Doc. 68-1 at 238; Doc. 73-1 at
22, 2016, Plaintiff received an email from Ms. Ellestad
stating, “Will you f'ing place this guy
already.” Doc. 68-1 at 241; Doc. 73-1 at 48. Plaintiff
understood this to mean that he needed to place the job
candidate, Dennis Chisholm, with a client. Doc. 73-1 at 49.
He found the email “inappropriate and unprofessional,
” especially because it “was more of a
compound” on prior incidents with Ms. Ellestad.
days later, on March 24, 2016, the U.S. Equal Employment
Opportunity Commission (“EEOC”) received an
intake questionnaire from Plaintiff alleging sex
discrimination and retaliation by INT. Doc. 68-1 at 232-42.
On April 4, 2016, Plaintiff filed a charge with the EEOC
raising the same allegations. Doc. 18 at 2 ¶ 17. The
next day, on April 5, 2016, Plaintiff completed an employee
self-evaluation form for INT, in which he stated that he was
“discourage[d]” because he has been told that he
has “gained a reputation of being hard to work
with.” Doc. 68-1 at 204. He also noted that there
“needs to be better avenues” to raise issues
about the company and that he felt
“retaliate[ed]” against when his “draw was
cut . . . after [he] tried to speak up about [his] concerns
within the company.” Id. After submitting this
evaluation, Plaintiff testified that Ms. Ellestad negatively
reviewed his work performance, stating that he had become
hard to work with. Doc. 73-1 at 11, 79. Plaintiff complained
to Ms. Rutledge about this comment, who deemed the comment
“hearsay” and removed it from Plaintiff's
review. Id. at 79-81.
evening of April 18, 2016, Ms. Moulton emailed Plaintiff,
notifying him that she was “investigating the comments
[he] made in [his] self-evaluation about retaliation”
and requested to obtain his statement. Doc. 68-1 at 207. Ms.
Moulton did not mention in her email that she was
investigating Plaintiff's EEOC charge. Id. The
following morning, on April 19, Plaintiff resigned via email
from INT, stating that he has “been left no
choice” due to “the continue[d]
retaliation” and “sexual harassment” he
experienced at INT. Id. at 209. He then replied to
Ms. Moulton's earlier email, stating that he would speak
with her about the internal investigation with his attorney
present. Id. at 206. That same day he accepted a
sales manager position at Group Management Services, another
staffing firm, with an annual salary of $75, 000 in addition
to commissions. Id. at 213.
Plaintiff's Failure to Comply with Local Rule
motion for summary judgment includes a separate statement of
facts as required by Local Rule of Civil Procedure 56.1(a).
Doc. 68. Plaintiff's response includes two corresponding
statement of facts - a controverting statement of facts and a
separate statement of additional facts in support of his
response. Docs. 71, 73. By setting forth the disputed facts
and additional facts in two statements of facts instead of
one, Plaintiff violated Local Rule 56.1(b). Because his two
separate statements totaled nineteen pages, Plaintiff also
failed to comply with the Court's February 9, 2017 order,
which requires that Plaintiff's statement of fact
“shall not exceed ten pages in length, exclusive of
exhibits.” Doc. 23.
moved to strike Plaintiff's additional statement of facts
or alternatively to submit five more pages to address the
additional facts asserted by Plaintiff. Doc. 74. On January
24, 2018, the Court decided not to strike Plaintiff's
additional statement “[a]t this time, ” but
granted INT's request to submit five more pages. Doc. 75.
Local Rule of Civil Procedure 7.2(e)(2) sets an eleven-page
limit for a reply, and so, the additional five pages gave INT
sixteen pages for its reply. INT's filed a fourteen-page
reply in support of its motion for summary judgment and
addressed some of the additional facts. Doc. 76.
extra pages appear to have afforded INT an adequate
opportunity to address Plaintiff's additional facts. The
Court will deny INT's motion to strike.
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 demonstrates 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).