United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
Jeremy Thacker brings this action against Defendants GPS
Insight, LLC (“GPSI”) and Robert Donat. Plaintiff
alleges claims for tortious interference with contract and
prospective economic advantage, defamation, invasion of
privacy, and violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq., and the Fair
Credit Reporting Act, 15 U.S.C. § 1681 et seq.
(“FCRA”). Doc. 70.
parties have cross-moved for partial summary judgment. Docs.
112, 113. The motions are fully briefed, and no party
requests oral argument. Docs. 119, 123, 129, 133. For the
following reasons, the Court will deny Plaintiff's
motion, deny summary judgment on the tortious interference
with contract claim, and grant summary judgment on the Title
VII and FCRA claims and claim for tortious interference with
held a sales position at GPSI from approximately June 4, 2013
until his termination on March 6, 2017. Since 2006, Donat has
been the president, sole director, and majority shareholder
of GPSI's sole member, Sedonatech, Inc. He is also
GPSI's founder and CEO. Docs. 70 at 1-2; 105 at 1. Donat
had a romantic relationship with a GPSI employee Kristin
Lisson, which ended in November 2016. Doc. 105 at 2. Lisson
began dating Plaintiff in December 2016. Lisson's
supervisors, Tyler Mortensen and Jason Walker, told Plaintiff
and Lisson that their relationship did not violate company
policy or involve a conflict of interest. Id.
Plaintiff alleges that Donat began harassing Plaintiff and
Lisson about the relationship and terminated Plaintiff for
jealous and retaliatory reasons. Docs. 70, 129 at 1-2.
Plaintiff's direct supervisor, testified that he decided
to terminate Plaintiff on the evening of March 2, 2017, in
part because of a meeting earlier that day about
Plaintiff's compensation in which Plaintiff was
insubordinate. Docs. 112 at 3; 129-1 at 105-06. Walker
testified that several other performance issues contributed
to the decision, including problems with Plaintiff's
attendance and attitude, as well as instances of
untruthfulness in 2013. Doc. 129-1 at 105-06. Plaintiff was
terminated on his next day at the office on March 6, 2017.
Doc. 112 at 3.
move for partial summary judgment on Plaintiff's claims
for Title VII violations (Count 1), tortious interference
with contract (Count 2), FCRA violations (Count 5), and
tortious interference with prospective economic advantage
(Count 7). Doc. 112. Plaintiff cross-moves for summary
judgment on his FCRA claim. Doc. 113.
Summary Judgment Legal Standard.
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Summary judgment is
appropriate if the evidence, viewed in the light most
favorable to the nonmoving party, shows “that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude 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).
Count 1: Title VII Violations.
alleges that GPSI discriminated against him because of his
romantic relationship with Lisson and retaliated against him
because he opposed Donat's sexual harassment of Lisson.
Doc. 70 at 11.
employer violates Title VII when it subjects an employee to
disparate treatment because of the employee's sex. 42
U.S.C. § 2000e-2(a); see Reynaga v. Roseburg Forest
Prods., 847 F.3d 678, 690 (9th Cir. 2017); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). A
plaintiff can establish an inference of discrimination
“by satisfying the prima facie elements from
McDonnell Douglas: (1) the plaintiff belongs to a
protected class, (2) he was performing according to his
employer's legitimate expectations, (3) he suffered an
adverse employment action, and (4) similarly situated
employees were treated more favorably, or other circumstances
surrounding the adverse employment action give rise to an
inference of discrimination.” Reynaga, 847
F.3d at 690-91.
complaint does not clearly identify the basis for his claim,
but he states elsewhere that he was discriminated against
because of his association with Lisson as a member of a
protected class, and that Donat began disparaging Plaintiff
once he learned of Plaintiff's relationship with Lisson.
Doc. 129 at 1, 11, 3, 5; see also Doc. 112-2 at
9.Plaintiff's own statements repeatedly
show that his claim of disparate treatment is based not on
the fact that he is a male or that he associated with a
female, but on Donat's personal jealousy over
Plaintiff's and Lisson's relationship. GPSI argues
that this is not sex discrimination cognizable under Title
VII. Doc. 112 at 6.
relies on a line of cases dealing with associational
discrimination based on race or national origin. Id.
at 11; Doc. 112-2 at 8-13; see, e.g., Tovar v.
Essentia Health, 857 F.3d 771, 776 (8th Cir. 2017)
(discussing examples). He acknowledges that those cases
involve only relationships between people of different races
or national origins, but asserts that “there is nothing
in any of [the] decisions that suggests their holdings are so
limited.” Docs. 129 at 11; 112-2 at 8-13. The Ninth
Circuit appears to have treated favorably the notion that a
plaintiff has a Title VII hostile environment claim when he
is discriminated against based on his association with
members of a different race. See McFinest v. GTE Serv.
Corp., 360 F.3d 1003, 1118 (9th Cir. 2004). But
Plaintiff cites no Ninth Circuit authority for extending the
race-based associational discrimination theory to a case like
this, where Plaintiff does not allege that he was mistreated
for associating with someone of a different race or national
courts have extended associational discrimination to sexual
orientation discrimination. See Zarda v. Altitude
Express, Inc., 883 F.3d 100, 128 (2d Cir. 2018). But
Plaintiff does not argue that he was discriminated against
because he had a heterosexual romantic relationship. He
asserts that he was discriminated against because he dated
Lisson, who formerly had a relationship with Donat. Plaintiff
states repeatedly that “Donat was motivated by his
jealousy and Lisson's rejection of his sexual advances in
favor of” Plaintiff. See, e.g., Doc. 129 at 8.
The alleged basis for the conflict is Donat's alleged
jealousy of Lisson's relationship with Plaintiff, not
that Plaintiff was a male dating a female.
VII only prohibit[s] discrimination based on immutable
characteristics associated with a worker's sex.”
Jespersen v. Harrah's Operating Co., 392 F.3d
1076, 1080 (9th Cir. 2004). “[P]ersonal animosity is
not the equivalent of sex discrimination, ” and
Plaintiff “cannot turn a personal feud into a sex
discrimination case.” Jura v. County of Maui,
No. 11-00338 SOM/RLP, 2012 WL 5187845, at *7 (D. Haw. Oct.
17, 2012) (quoting Succar v. Dade Cty. Sch. Bd., 229
F.3d 1343, 1345 (11th Cir. 2000)); see also Onscale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(Title VII is not “a general civility code for the
American workplace”); Northington v. H&M
Int'l, 712 F.3d 1062, 1065 (7th Cir. 2013) (no
protected activity where plaintiff complained about
employee's maltreatment based on that employee's
personal dispute with plaintiff over a relationship between
plaintiff and the employee's ex); cf. Maner v.
Dignity Health, 350 F.Supp.3d 899, 904-06 (D. Ariz.
2018) (discussing cases and holding that defendant's
favoritism of his romantic partner was non-cognizable under
Title VII because it was not based on sex, but a personal
has failed to establish elements essential to his prima facie
case for which he would have the burden at trial, namely that
he suffered an adverse employment action on the basis of his
sex. See Celotex, 477 U.S. at 322. The Court will
grant summary judgment to GPSI on Plaintiff's sex
retaliation claim must establish that (1) the employee
engaged in a protected activity, (2) the employer took an
adverse employment action against the employee, and (3) the
employer would not have taken the adverse employment action
but for a design to retaliate. Nilsson v. City of
Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013) (clarifying that employee must show “but
for” causation). An employee engages in protected
activity when he complains about conduct that he reasonably
believes constitutes an unlawful employment practice under
Title VII or participates in an EEOC investigation or
proceeding. 42 U.S.C. § 2000e-3(a); see Trent v.
Valley Elec. Ass'n Inc., 41 F.3d 524, 526 (9th Cir.
1994). “An employee need not utter magic words to put
his employer on notice that he is complaining about unlawful
discrimination.” Ekweani v. Ameriprise Fin.,
Inc., No. CV-08-01101-PHX-FJM, 2010 WL 481647, at *6 (D.
Ariz. Feb. 8, 2010) (citation omitted). Whether
“analyzed as a requirement for protected activity or
under the element of causal link, . . . an employer must
reasonably be aware that its employee is engaging in
protected activity.” Id. (citing Cohen v.
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982);
see also Quinones v. Potter, 661 F.Supp.2d 1105,
1126-27 (D. Ariz. 2009) (citing Galdieri-Ambrosini v.
Nat'l Realty & Dev. Corp., 136 F.3d 276, 291-92
(2d Cir. 1998) for the proposition that “implicit in
the requirement that the employer have been aware of the
protected activity is the requirement that it understood or
could reasonably have understood, that the plaintiff's
opposition was directed at conduct prohibited by Title
No Protected Activity by Plaintiff.
argues that Plaintiff engaged in no protected activity and
was terminated for his conduct, not for retaliatory reasons.
Docs. 112 at 3, 6 n.3; 133 at 2, 5. According to Defendants,
Plaintiff has misrepresented as protected activity a
complaint he made to Mortensen about Donat's harassment
of Lisson. Doc. 112 at 6. The alleged complaint was an email
Plaintiff sent from his personal email address to
Mortensen's personal email address in February 2017. Doc.
112-1 at 232. Plaintiff's message appears to be following
up on an earlier conversation with Mortensen (“I told
you today because I want you to have a heads up
personally”), but indicates that Plaintiff does not
wish for Mortensen to share the information, especially with
Walker. Plaintiff's statements to that effect include:
I am ONLY telling you things because first and foremost
you're my friend. I'm not sure if that is right
either though because it's unfair to ask you to not say
anything when it [a]ffects others professionally and
Professionally, I don't think it's worth telling
anyone because I don't think anyone is in a position
to do anything about it. . . . If nobody is willing or ready
do anything about it, I don't know what good it does for
them to know.
[Lisson] doesn't want [Walker] to know because she
doesn't trust him to not do anything or to do enough if
he did. I agree with her.
Doc. 112-1 at 232 (emphasis added). Plaintiff reiterated in a
text message that he did not want Mortensen to share the
information or take any action. Doc. 112-1 at 201-02, 204.
argue that this email was not a Title VII complaint. It was a
personal communication, not a professional complaint about
discrimination. And even if the email was protected activity,
Defendants argue, the person who decided to terminate
Plaintiff - Walker - was unaware of it before the termination
decision. Doc. 112 at 6 n.3.
responds that disputes of fact exist about whether Walker
knew of the email, but he cites no evidentiary support. Doc.
129 at 6. He also contends that he complained about unlawful
discrimination in January 11 and March 2, 2017 meetings with
Walker and Mortensen, but his cited support fails to mention
discrimination or complaints of Title VII misconduct.
See Docs. 129-1 at 112 (Walker's testimony that
Plaintiff never told Walker that Donat was harassing Lisson,
and only stated that he thought he was unfairly judged by
Donat and another employee); 147 (Mortensen's testimony
that he did not remember discussing Lisson with Plaintiff on
January 11, 2017).
states that he complained of discrimination in oral and
written statements to Mortensen. Doc. 129 at 6. But his
citations rely again on Plaintiff's incorrect theory of
sex discrimination based on his relationship with Lisson, or
simply refer to issues regarding his compensation.
See Docs. 129-3 at 17 (from the February 2017 email,
stating that Plaintiff does not think Donat will ever
“treat Kristin or [him] fairly after she has crushed
[Donat's] ego by choosing [Plaintiff]”); 129-2 at
80 (Plaintiff's text message to Mortensen stating:
“If [Donat] is not willing to pay me because of who
I'm dating, I shouldn't be the only one willing to
say it”); 129-2 at 84 (discussing his compensation in
text messages with ...