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Frotten v. INT Technologies LLC

United States District Court, D. Arizona

May 21, 2018

Robert M Frotten, Plaintiff,
INT Technologies LLC, Defendant.


          David G. Campbell, United States District Judge.

         Plaintiff 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.

         I. Background.

         The 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 information.

         Plaintiff 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.

         INT is 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.[1] Doc. 68 at 2 ¶ 4; Doc. 71 at ¶ 4; Doc. 73 at 2 ¶ 5; Doc 73-3 at 5.

         In July 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.

         At the 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.

         Following 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.

         Other 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 13.

         In 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.

         On 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.[2] Id.

         On 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.

         The 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.

         Mr. 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.

         Plaintiff 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.

         Sometime 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.[3]

         In 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.

         Later, 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.

         On 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. Id.

         On 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 76.

         On Mach 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. Id.

         Two 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.

         On the 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.

         II. Plaintiff's Failure to Comply with Local Rule 56.1.

         INT's 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.

         INT 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.

         The 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.

         III. 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 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).

         IV. ...

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