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Villa v. State

United States District Court, D. Arizona

April 25, 2019

Hector Villa, Plaintiff,
v.
State of Arizona, et al., Defendant.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         At issue is Defendant State of Arizona's Motion for Summary Judgment (Doc. 36), to which Plaintiff Hector Villa has filed a Response (Doc. 43), and Defendant has filed a Reply (Doc. 44). For the reasons set forth below, Defendant's Motion for Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff Hector Villa brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, alleging sex discrimination, national origin discrimination, and retaliation against his former employer, the Arizona Department of Corrections (“ADC”) of the State of Arizona. (Doc. 1 at 1). Plaintiff is a heterosexual male, and a Mexican-American citizen of the United States. (Defendant's Statement of Facts (“DSOF”), Doc. 35 ¶¶ 36, 67; Plaintiff's Statement of Facts (“PSOF”), Doc. 42 ¶¶ 84-85, 87). From 2007 to 2017, Plaintiff worked at ADC as a Correctional Officer (CO) II at the Arizona State Prison Complex (ASPC) - Lewis. (DSOF ¶¶ 1, 50; PSOF ¶¶ 1, 92, 166). Plaintiff was assigned to the Eagle Point unit, which is across the street from and physically outside of the main prison complex. (DSOF ¶ 12; PSOF ¶¶ 12, 93).

         A. Plaintiff's September 25, 2014 Complaint Against CO II Deem

         In 2014, Plaintiff worked with another CO II named David Deem at the Eagle Point unit. (DSOF ¶ 11; PSOF ¶ 11). Plaintiff testified in his deposition that Deem called him slurs including “Italian n****r, ” “wet back, ” “chomo” (prison slang for a child molester), and “faggot” on a “daily basis” and “all the time.” (PSOF ¶¶ 95, 97). On September 25, 2014, Plaintiff filed an internal complaint alleging that Deem had harassed him by, among other things, calling him a “fag” and a “Sicilian n****r” and by saying he was going to call the INS to have Plaintiff deported. (DSOF ¶ 10; PSOF ¶ 10; see Doc. 35-1 at 39-40). This internal complaint states that inmates and several employees of ADC- including Officers Flores, Robertson, Kingsland, Phillips, and Young-witnessed this harassment. (Doc. 35-1 at 39-40). Although not mentioned in Plaintiff's September 25, 2014 complaint, Officer Anderson states in his Declaration that he witnessed Deem call Plaintiff a “faggot” and a “Sicilian n****r.” (Doc. 42-6 at 23). According to Officer Anderson, Plaintiff responded to these comments by telling Deem, “that isn't cool.” (Id.).

         Plaintiff also complained to a supervisor, Sgt. Abker, about CO II Deem's slurs on September 25, 2014. (PSOF ¶¶ 99-100; Doc. 42-5 at 5). That same day, Sgt. Abker submitted an information report regarding Deem's alleged harassment of Plaintiff to ADC Lieutenant Lunka, stating:

On the above date and approximate time COII Villa advised me that COII Deem had been making racial comments towards him. Comments like “I am going to deport you” and that he was “a faggot, gay, a homosexual” along with other derogatory comments. COII Villa advised me that this has been going on for the last few weeks and that he has approached Deem about the comments, stating that he did not approve of them and that they were disrespectful towards him. He also advised that COII Deem made these comments around other staff and inmates and that now inmates on the yard have been making inappropriate jokes towards him. End of report.

         (PSOF ¶ 100; Doc. 42-5 at 5). On September 29, 2014, Chris Moody, the Warden of ASPC-Lewis, reassigned Deem to the Morey unit within the main complex. (DSOF ¶ 15; PSOF ¶ 15; Doc. 35-1 at 76). Despite Deem's reassignment, however, Plaintiff states that he still “ran into him on a daily basis” at the complex. (PSOF ¶¶ 15, 125-26).

         Leola Baker, the Lead Equal Opportunity Liaison at ASPC-Lewis, forwarded Plaintiff's September 2014 complaint to Eric Abt, an Equal Opportunity Coordinator in ADC's Central Office. (DSOF ¶ 16; PSOF ¶ 16). After Abt recommended that a fact-finding investigation be conducted, Baker assigned another Equal Opportunity Liaison, Sgt. Tyrrell, to do the fact-finding. (DSOF ¶¶ 17-18; PSOF ¶¶ 17-18). Sgt. Tyrrell interviewed Deem in early November 2014. (DSOF ¶19; PSOF ¶ 19). At this interview, Deem denied calling Plaintiff an “Italian N****r, faggot, gay, or homosexual” and denied that he ever said he was going to call the INS to have Plaintiff deported. (Doc. 35-1 at 63).[1]In December 2014, Sgt. Tyrrell interviewed Plaintiff. (DSOF ¶ 20; PSOF ¶ 20). Plaintiff told Sgt. Tyrrell that the September incident was not the only time he and Deem had a verbal altercation because Deem “always has something to say like your [sic] gay or call me a faggot.” (Doc. 35-1 at 65). When asked by Sgt. Tyrrell whether anything has happened since Deem was reassigned, Plaintiff responded that individuals had approached him to tell him that Deem had been talking negatively about him, calling him a paper dropper (prison slang for someone who reports misconduct), and stating that Plaintiff lied about what happened. (Id. at 66; see PSOF ¶ 131).

         In December 2014, Sgt. Tyrrell also interviewed CO II Robertson, one of the witnesses to the alleged harassment identified in Plaintiff's internal complaint. (DSOF ¶ 20; PSOF ¶ 20). Although CO II Robertson told Sgt. Tyrrell that he saw Deem “get up in CO II Villa[']s face” and then “heard CO II Deem state to CO II Villa that I don't like your face and I just want to punch you in the face, ” he also recalled that both men were laughing at the time so he “thought they were kidding around.” (Doc. 35-1 at 67). In addition, Robertson stated that that he had not heard Deem call Plaintiff an “Italian N****r or gay or a faggot.” (Id. at 68). When asked by Sgt. Tyrrell of his opinion of Deem, Robertson responded that Deem “is a little rough around the edges, ” and that Deem was “always going to have problems where ever he goes.” (Doc. 35-1 at 68). Robertson also stated that Deem likes “to joke a lot but I don't think others have his same sense of humor.” (Id.).

         In February 2015, Baker and Jacqueline Hill, an Equal Opportunity Coordinator in the Central Office, determined that further investigation was needed to complete the Fact Finding. (DSOF ¶ 21; PSOF ¶ 21). Consequently, on February 27, 2015, Baker interviewed CO II Flores and re-interviewed CO II Robertson. (DSOF ¶ 22; PSOF ¶ 22). When asked whether he recalled the incident in September between Plaintiff and Deem, Flores responded that he did and stated that Deem had made some sort of racial comment to Plaintiff along the lines of calling border patrol to deport Plaintiff to Mexico. (Doc. 35-1 at 71). Flores noted, however, that Plaintiff “just laughed” in response to these and other racial comments made by Deem. (Id.). Flores also stated that he had never heard Deem call Plaintiff a “Sicilian N****r” or tell Plaintiff that he would punch him in the face. (Id.). On February 27, 2015, Baker re-interviewed Robertson, and asked him to clarify what he meant when he said in his previous interview that Deem would have problems wherever he goes. (Doc. 35-1 at 73). Robertson stated that he “meant only in general terms” that Deem might have problems with other staff. (Id.). Robertson also stated in his February interview that he couldn't say that he had not heard Deem make any racial or cultural comments, but noted that the recipient of the comments didn't show signs of being offended. (Id.). Baker then prepared a written report summarizing these interviews, which was sent to Hill, Abt, and Warden Moody. (Id.). There is no indication that ADC interviewed any of the other witnesses listed in Plaintiff's September 2014 complaint, including Officers Kingsland, Phillips, or Trinity Young. Compare (Doc. 35-1 at 39-40 (Plaintiff's September 25, 2014 complaint)), with (Doc. 35-1 at 62-68 (Sgt. Tyrrell's Fact-Finding Report)). Based on this report, on March 17, 2015 Warden Moody informed Plaintiff that the investigation did not establish that Plaintiff was subjected to discrimination. (DSOF ¶ 23; PSOF ¶ 23).

         In his deposition, Plaintiff testified that he had no reason to believe that Deem was sexually or physically attracted to him. (DSOF ¶¶ 33-34; PSOF ¶¶ 33-34). Plaintiff also thought that when Deem called him a fag or gay, Deem was being anti-homosexual. (DSOF ¶ 35; PSOF ¶ 35). Plaintiff testified that he thinks it was sex discrimination for Deem to refer to him as a homosexual because Plaintiff is straight and Deem was calling him the opposite of straight. (DSOF ¶ 36; PSOF ¶ 36).

         B. Plaintiff's March 30, 2015 Complaint Against Deem

         On March 30, 2015, Plaintiff filed an internal complaint expressing disagreement with the determination on his previous complaint, and alleging that CO II Deem was continuing to harass him in retaliation for that complaint. (DSOF ¶ 37; PSOF ¶ 37). In this complaint, Plaintiff states that “CO II Deem has made every attempt available to slur my name to other officers” by labeling him as a “paper dropper, ” “gay, ” “crazy” and a “liar.” (Doc. 35-1 at 117). Plaintiff's complaint further states that he continues “to be harassed by CO II Deem through other employees who associate with this officer, ” and feels stressed when he runs into Deem in the complex because Deem “keeps his fist clenched and looks at [Plaintiff] with an angry facial expression.” (Id.). Plaintiff also pointed out that he asked Officers Kingsland and Trinity Young-two of the witnesses identified in his September 25, 2014 complaint-if anyone had pulled them aside to discuss the incidents with Deem, but each of them stated that they were not questioned in the investigation. (Id. at 118).

         Plaintiff's March 30, 2015 complaint was forwarded to Hill in the Equal Opportunity Unit at Central Office, and, after consultation with Hill, Baker assigned Lt. Jacole Swirsky to do a Fact-Finding investigation. (DSOF ¶¶ 38-39; PSOF ¶¶ 38-39). Lt. Swirsky first interviewed Plaintiff, who stated that he was being harassed by Deem through other employees. (Doc. 35-1 at 122).[2] In response to Lt. Swirsky's question asking if Deem had “said or done anything to you that you perceived as retaliation since the first case, ” Swirsky's report indicates that Plaintiff responded “no.” (Id.; see also DSOF ¶ 41). However, Plaintiff told Lt. Swirsky that CO II Hurles had told Plaintiff that she overhead Deem telling everybody that Plaintiff was a “paper dropper” and “can't be trusted.” (Doc. 35-1 at 122; see also PSOF ¶ 41). Lt. Swirsky next interviewed Hurles, who told Lt. Swirsky that she had not witnessed Deem retaliate against CO II Villa in any way. (Doc. 35-1 at 124).[3] Hurles did mention, though, that she had overhead Deem making comments about Plaintiff at the range such as “he messed things up for me” and “now I can't go to Perryville.” (Id. at 123-24).[4] Lt. Swirsky then interviewed Deem, who denied clenching his fists while in Plaintiff's presence, threatening to punch Plaintiff, or speaking to anyone about Plaintiff or the original complaint filed by Plaintiff against him. (Id. at 125). When asked by Lt. Swirsky what he had said when he was reportedly speaking about Plaintiff and the original complaint while at the range, Deem responded that he didn't remember. (Id.). It does not appear that Lt. Swirsky interviewed any of the other witnesses listed in Plaintiff's March 30, 2015 complaint, including Officers Anderson, Kingsland, Robertson, and Young. (Doc. 35-1 at 117, 121-26).

         After reviewing the summaries of Lt. Swirsky's interviews with Plaintiff, Deem, and Hurles, Warden Moody initiated an Administrative Inquiry in which Deem was presented with allegations to respond to in writing. (DSOF ¶ 47; PSOF ¶ 47). Based on the information obtained in the Administrative Inquiry and the Fact-Finding, Warden Moody determined that there was insufficient evidence to sustain charges. (DSOF ¶ 48; PSOF ¶ 48; Doc. 35-1 at 127). Warden Moody took no formal disciplinary action against officer Deem based on Plaintiff's allegations because he determined that those allegations were not supported by information obtained in ADC's investigations. (Doc. 35-1 at 77). However, Warden Moody did recommend that Deem be given an entry on his performance evaluation reminding him to maintain professionalism. (DSOF ¶ 49; PSOF ¶ 49). Warden Moody later terminated Deem's employment in 2016 after an investigation in an unrelated case indicated that Deem engaged in misconduct. (Doc. 35-1 at 77).

         C. Plaintiff's March 13, 2015 EEOC Charge

          Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on March 13, 2015 alleging that he had been discriminated and retaliated against because of his sex and national origin in violation of Title VII of the Civil Rights Act of 1964. (DSOF ¶¶ 62-63; PSOF ¶¶ 62-63; Doc. 35-1 at 33). Plaintiff's EEOC Charge specifically alleges that Deem had subjected him to a hostile work environment by telling Plaintiff he would get him deported to Mexico, and calling Plaintiff a “chomo” (child molester), “Italian n****r” and a “faggot.” (Doc. 35-1 at 33). On July 7, 2017, the EEOC issued a Dismissal and Notice of Right to Sue to Plaintiff indicating that it was closing its file on the charge because, “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” (Doc. 35-1 at 37). The EEOC also stated that its Dismissal and Notice of Right to Sue “does not certify that the respondent is in compliance with the statutes.” (Id.).

         D. Plaintiff's January 25, 2016 Complaint Against Barreras, the Resulting Investigation, and Plaintiff's Interactions with Hibbard

         On January 25, 2016, Plaintiff filed a complaint alleging misconduct by Sgt. Barreras, supervisor of the Fire Crew at ASPC-Lewis. (DSOF ¶ 72; PSOF ¶ 72). In this complaint, Plaintiff alleged that during fire crew exercises in October 2015 he “observed Sgt. Barreras [in] what appeared to be horseplay with the inmates” by touching one or more of them “in the buttocks area with a walking stick.” (Id.). In his deposition, Plaintiff indicated that Barreras touched him in this manner, as well. (PSOF ¶ 142). Plaintiff further stated that Barreras had called Plaintiff and other inmates on the prison's fire crew “homos, ” “fags, ” and “faggots, ” and had called Plaintiff a “structure fag” because Plaintiff had worked as a structure firefighter for a former employer. (DSOF ¶ 72; PSOF ¶¶ 72, 141).

         After he complained of Barreras' alleged discriminatory misconduct, Plaintiff claims that Barreras walked through the control room where Plaintiff was working, punched the window, and ran his finger across his throat in a manner which indicated to Plaintiff that Barreras was going “to get” him. (PSOF ¶ 150). Plaintiff also alleges that two supervisors, Sgt. Hilnojosa and fire training supervisor “Jake, ” told Plaintiff he was not selected for a full-time position on the prison's fire crew based on his complaints of discrimination. (PSOF ¶ 151).[5] Plaintiff wanted a full-time position on the fire crew because it offered more opportunities to earn overtime pay. (PSOF ¶ 152). Based on this conversation, Plaintiff contends that he went back to the EEOC to file another Charge of Discrimination, but was told by EEOC investigator Jose Effio that filing a new EEOC Charge was unnecessary based on the scope of his original charge. (PSOF ¶ 154).

         The Criminal Investigations Unit of ADC's Office of Inspector General conducted an investigation but did not find any indication that any of the activity reported by Plaintiff was criminal in nature. (DSOF ¶ 73; PSOF ¶ 73). During Special Investigator John Armstrong's investigation into whether Plaintiff's allegations evidenced criminal conduct, Armstrong asked Plaintiff “why he felt this was an EEOC issue instead of [a] normal supervisory issue which he would normally report to this supervisor.” (Doc. 42-6 at 4). Plaintiff responded that “he was afraid of retaliation from Sgt. Barreras, ” his supervisor for the Fire Crew. (Id.). Plaintiff also told Armstrong that he did not know who to tell about Barreras' alleged misconduct because he did not “trust” Lewis Complex Deputy Warden Hibbard after Hibbard had made racial comments specifically mentioning “Mexicans.” (Doc. 42-6 at 2; PSOF ¶ 156). Specifically, Plaintiff claims that Hibbard called him a “brown dick, ” and stated to Plaintiff on December 23, 2015: “Here I am making burritos, if I had a bunch of Mexicans working for me I would be done already but here I am a white boy still making burritos.” (PSOF ¶¶ 156, 161; Doc. 42-6 at 4). When asked for more details regarding this incident at his deposition, Plaintiff testified that Hibbard told him, “Villa, you Mexican, go make me some God damn burritos.” (PSOF ¶ 157). Plaintiff then claims he told Hibbard that this remark made him sound racist, to which Hibbard told Plaintiff either “shut up, you Mexican, ” or “go back to work, you Mexican.” (PSOF ¶ 158). Plaintiff also alleges that Hibbard refused his request for a promotion because Plaintiff was “a brown dick.” (PSOF ¶¶ 159-61).

         E. Plaintiff's September 7, 2017 Resignation

         On September 7, 2017, Plaintiff gave ADC two-weeks' notice of his resignation by submitting a form memo on which he checked the statement, “I hereby voluntarily resign/retire from my position with the Arizona Department of Corrections.” (DSOF ¶ 50; PSOF ¶ 50; Doc. 35-1 at 129). On this resignation form, Plaintiff listed “Daughter (caring for child)” as the reason for his resignation, but Plaintiff denies that this was the true reason for his resignation. (DSOF ¶ 51; PSOF ¶ 51; Doc. 35-1 at 129).

         Although Plaintiff's wife had just given birth to a baby daughter a month prior to Plaintiff's resignation, Plaintiff testified at his deposition that he gave a false reason for resigning in his notice of resignation because he was worried about retaliation. (DSOF ¶¶ 52, 55; PSOF ¶¶ 52, 55). Specifically, Plaintiff believed that if he revealed that discriminatory harassment was the true reason for his resignation, ADC would retaliate against him by giving him poor recommendations to prospective employers. (PSOF ¶ 168). According to Plaintiff, he was “forced to quit the Department as a matter of self-respect” because he could no longer endure the environment. (PSOF ¶ 166). While Plaintiff admitted that he was no longer facing any harassment from Officer Deem at the time of his resignation, he claimed that he was still facing discriminatory harassment and retaliation at Eagle Point Unit in the form of “racial slurs and false allegations regarding his sexuality.” (DSOF ¶ 56; PSOF ¶¶ 56, 166). In addition to complaining of retaliation for reporting Barreras' alleged discriminatory misconduct, Plaintiff states that he feared inmates would physically assault him because they had heard Deem call Plaintiff a “chomo.” (PSOF ¶¶ 56, 133, 150-54). Further, an inmate told Plaintiff, “I heard from Deem that you're a faggot” as he pulled his pants down to expose himself to Plaintiff. (PSOF ¶ 134).

         F. The Present Action

         On October 5, 2017, Plaintiff filed the instant action. (Doc. 1). Plaintiff alleges that the discriminatory harassment he faced forced him to resign, and that Defendant tolerated the discriminatory work environment by failing to adequately investigate his complaints of harassment and retaliation or appropriately discipline employees. (Doc. 1 at 3).[6] Defendant denies that any unlawful discriminatory or retaliatory conduct occurred, and raises the affirmative defense that Plaintiff failed to exhaust administrative remedies. (Doc. 8 at 1- 2). Defendant also affirmatively defends on the ground that it reasonably responded to Plaintiff's complaints per Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). (Doc. 8 at 1-2). On December 21, 2018, Defendant filed the Motion for Summary Judgment at issue, which argues that Plaintiff failed to exhaust administrative remedies, was not constructively discharged, and that his harassment claims are insufficient to find Defendant liable. (Doc. 36). On February 12, 2019, Plaintiff filed his Response in Opposition to Defendant's Motion for Summary Judgment. (Doc. 43).[7] Defendant then filed its Reply on February 28, 2019. (Doc. 44). The Court heard oral argument in this matter on April 24, 2019.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when “the movant 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). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A-B). Thus, summary judgment is mandated “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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and the elements of the cause of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

         At the summary judgment stage, the Court's role is to determine whether there is a genuine issue available for trial. There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. (citations omitted).

         III. ANALYSIS

         Defendant argues that it is entitled to summary judgment on each of Plaintiff's claims[8] because: (1) Plaintiff failed to exhaust his administrative remedies as to all of his claims, except those alleging that he was harassed by Deem; (2) Plaintiff's harassment claims resulting from Deem's conduct are devoid of support; and (3) Defendant reasonably responded to Plaintiff's complaints.

         A. Whether Plaintiff Exhausted Administrative Remedies as to Each of His Claims

         Prior to bringing suit on Title VII claims, a plaintiff must exhaust administrative remedies by filing a timely charge with the EEOC or the appropriate state agency. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); 42 U.S.C. § 2000e-5(b)). This administrative charge requirement affords the agency an opportunity to investigate the charge, gives the charged party notice of the claim, and narrows the issues “for prompt adjudication and decision.” Id. (citing 42 U.S.C. § 2000e-5(b); Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)).

         “The jurisdictional scope of a Title VII claimant's court action depends upon the scope of both the EEOC charge and the EEOC investigation.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citing Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989)). “Subject matter jurisdiction extends over all allegations of discrimination that either ‘fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'” B.K.B., 276 F.3d at 1100 (quoting Farmer Bros. Co., 31 F.3d at 899) (emphasis in original) (internal quotations omitted). Accordingly, “[w]hen an employee seeks judicial relief for incidents not listed in his original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC.” Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973).

         “In determining whether an allegation under Title VII is like or reasonably related to allegations contained in a previous EEOC charge, the court inquires whether the original EEOC investigation would have encompassed the additional charges.” Green, 883 F.2d at 1476 (citations omitted); see also B.K.B., 276 F.3d at 1100 (“In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, [] any locations at which discrimination is alleged to have occurred[, ]” and whether the plaintiff's “claims are consistent with the plaintiff's original theory of the case.”). However, “if the two claims are not so closely related that a second administrative investigation would be redundant, the EEOC must be allowed to investigate the dispute before the employee may bring a Title VII suit.” Stache v. Int'l Union of Bricklayers & Allied Craftsmen, AFL-CIO, 852 F.2d 1231, 1234 (9th Cir. 1988) (citing Brown v. Puget Sound Elec. Apprenticeship & Training Tr., 732 F.2d 726, 730 (9th Cir. 1984)). Thus, whether a “plaintiff has in fact exhausted his or her administrative remedies depends on an analysis of the ‘fit' between the administrative charges brought and investigated and the allegations of the subsequent judicial complaint.” Ong v. Cleland, 642 F.2d 316, 318 (9th Cir. 1981).

         Finally, “[t]he remedial purpose of Title VII and the paucity of legal training among those whom it is designed to protect require charges filed before the EEOC to be construed liberally.” Green, 883 F.2d at 1476 (citation omitted). “The administrative charge required by Title VII does not demand procedural exactness. It is sufficient that the EEOC be apprised, in general terms, of the alleged discriminating parties and the alleged discriminatory acts.” Chung v. Pomona Valley Cmty. Hosp., 667 F.2d 788, 790 (9th Cir. 1982) (citation omitted). Although district courts must “‘construe the language of EEOC charges with utmost liberality since they are made by those unschooled in the in the technicalities of formal pleading,' . . . there is a limit to such judicial tolerance when principles of notice and fair play are involved.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B., 276 F.3d at 1100).

         “The crucial element of a charge of discrimination is the factual statement contained therein.” B.K.B., 276 F.3d at 1100 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)). The factual statement in Plaintiff's March 13, 2015 EEOC charge reads:

Beginning on September 22, 2014, Correctional Officer II Deem has subjected me to a hostile work environment to include but not limited to telling me that he is going to deport me back to Mexico, calling me an ‘Italian niggger' [sic] and a ‘faggot[.]' Deem also called me a ‘chomo' (Child Molester)[.] These comments were made several times. On September 25, 2014[, ] I filed an internal EEO complaint. As a result[, ] Officer Deem has been transferred to a different yard. However, I have been told that he is talking about me in that he is telling other officers that I am a paper dropper and that I should have been transferred instead of him.

(Doc. 35-1 at 33). In this charge, Plaintiff checked boxes indicating that he believed he had been subjected to discrimination based on sex, national origin, and retaliation. (Id.). Further, Plaintiff's charge lists “09-25-14” as the latest date on which discrimination took place, and the “continuing action” box is not checked. (Id.).

         Defendant contends that Plaintiff failed to exhaust his EEOC administrative remedies as to all claims except those based on the alleged harassment by Deem. (Doc. 36 at 3-6; see also Doc. 44 at 3(“There is no dispute that Plaintiff exhausted his administrative remedies with respect to the alleged harassment by Deem in September 2014. . . . There is also no dispute that Plaintiff exhausted his administrative remedies with respect to allegations of later harassment by Deem.”)). Specifically, Defendant argues that Plaintiff did not exhaust the following claims because they were not included in his EEOC charge and are not “like or reasonably related to” the allegations in the EEOC charge: 1) his claim of constructive discharge; 2) his claim that he was physically and verbally harassed by Sgt. Barreras, a supervisor; 3) his claim that he was harassed by Deputy Warden Hibbard; and 4) his claim that ADC failed to promote him to a full-time position on the fire crew in retaliation for filing complaints of discrimination. (Doc. 36 at 5-6; Doc. 44 at 3). The Court will address each of these claims in turn.

         1. Constructive Discharge Claim

         Defendant first contends that Plaintiff failed to exhaust his administrative remedies as to his constructive discharge claim. (Doc. 36 at 5). The Court agrees.

         Plaintiff's EEOC charge alleged that Deem subjected him to a hostile work environment by making various harassing comments based on Plaintiff's sex and national origin, and that Deem retaliated against Plaintiff for filing an internal EEO complaint. (Doc. 35-1 at 33). Plaintiff's charge did not allege constructive discharge, (id.), and Plaintiff avers in his Complaint, for the first time, that the discriminatory harassment he suffered at the hands of his ...


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