United States District Court, D. Arizona
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
...