U.S. EEOC v. Elite Wireless Group, Inc.

• Court: District Court, E.D. California
• Decided: January 27, 2022
• Docket: 2:19-cv-02187
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 U.S. EQUAL EMPLOYMENT No. 2:19-cv-02187-MCE-CKD OPPORTUNITY COMMISSION, 12 Plaintiff, 13 MEMORANDUM AND ORDER v. 14 ELITE WIRELESS GROUP, INC., 15 Defendant. 16

17 18 This case arises out from a determination by Plaintiff U.S. Equal Employment 19 Opportunity Commission (“EEOC” or “Commission”) of reasonable cause that Defendant 20 Elite Wireless Group, Inc. (“Elite” or “Defendant”) had discriminated against a former 21 employee of Elite’s because of her sex in contravention of Title VII of the Civil Rights Act 22 of 1964, 28 U.S.C. §§ 2000, et seq., as amended (“Title VII”). Following that 23 determination, the EEOC instituted the present lawsuit on October 29, 2019. 24 Defendant now moves for summary judgment on grounds that the EEOC, by 25 failing to initiate any discovery since Elite’s answer to the complaint was filed on 26 October 14, 2020, has failed to present evidence to support its claim and Elite is 27 accordingly entitled to judgment as a matter of law pursuant to Federal Rule of Civil 28 /// 1 Procedure 56.1 Alternatively, Elite requests that the EEOC’s lawsuit be dismissed for 2 failure to prosecute under Rule 41(a) on grounds that the EEOC has done nothing to 3 pursue the case since it was commenced. As set forth below, Defendant’s Motion (ECF 4 No. 20) is DENIED.2 5

6 BACKGROUND 7 8 According to the EEOC’s Complaint, after a female former employee 9 (“Employee”)3 accused Elite of sex discrimination, it investigated the charges and, by 10 letter to Elite dated August 12, 2019, issued a Determination finding reasonable cause 11 that they were substantiated. Compl., ECF No. 1, ¶¶ 6, 7. The Commission’s 12 investigation allegedly revealed, as delineated in its Complaint, that after the Employee 13 was hired by Elite and assigned to work as a sales clerk at its Sacramento Arden Fair 14 Mall store (“Store”) in March of 2017, the store manager at that location (who was also 15 the Employee’s direct supervisor4) began to make unwanted comments that he wanted 16 to “hang out” and “hook up” with her. Id. at ¶ 19. Although the Employee complained to 17 the District Sales Manager (tasked with additional oversight over the Store) about the 18 comments, he told her that the store manager was “probably just joking” and “not being 19 serious.” Id. at ¶ 20. 20 Following a company holiday party on November 17, 2017, however, the manager 21 sexually assaulted the Employee in a hotel room once other employees who had 22 continued to drink and celebrate there had departed. Id. at ¶¶ 21-24. Although the 23 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless 24 otherwise noted.

25 2 Having determined that oral argument would not be of material assistance, the Court ordered this matter submitted on the briefs in accordance with E.D. Local Rule 230(g).

26 3 This anonymous designation will be used throughout the following Memorandum and Order given the Court’s Order of May 17, 2021, which granted the EEOC’s request not to identify the Employee 27 by name given the underlying sexual assault allegations made herein.

28 4 Employee’s Decl., ECF No. 22-4, ¶ 5. 1 Employee both reported the incident to the police and to Elite’s CEO, the Employee had 2 to continue working in the Arden Fair store for several days until she (but not the 3 manager) was transferred to a less desirable store with a longer commute. Id. at ¶ 27- 4 29. 5 Emotionally and psychologically traumatized by the assault, the Employee’s work 6 attendance began to suffer despite her alleged exemplary job performance beforehand. 7 Id. at ¶¶ 16, 30. After being informed by Elite in December of 2017 that there was no 8 evidence to support her claims, the Employee was terminated soon thereafter for 9 excessive absenteeism. Id. at ¶¶ 31-32. 10 Although defense counsel herein (who had also represented Elite in the 11 investigation process and during pre-filing settlement negotiations) indicated in early 12 February of 2020 that he would be filing an answer to the EEOC’s lawsuit once admitted 13 to the Eastern District, counsel’s failure to do so or to even request an extension 14 ultimately forced the EEOC to move for a default, which was entered by the Court of 15 March 10, 2020. Pl.’s Separate Statement of Disputed Fact in Opposition (“PDF”), ECF 16 Nos. 22-1, 27, 36.5 Thereafter, while Defendant’s counsel failed to move to set aside the 17 default, he did tell the EEOC in May of 2020 that Elite had closed its business and 18 renewed a prior offer to settle the case. Id. at No. 44. Although the Commission asked 19 for corroborating evidence to support Defendant’s representations, it denies ever 20 agreeing to set aside the default in exchange for such information (id. at Nos. 46-47) and 21 Elite did not move to set aside the default until August 14, 2020, more than five months 22 after it had been entered. It was not until October 14, 2020, after the Court granted its 23 Motion to Set Aside, that Defendant finally filed its answer to the EEOC’s complaint. 24 ECF No. 16. 25 By this time, more than a year had passed since the EEOC had filed its initial 26 complaint on September 23, 2019. Counsel for the Commission claim they initially 27 5 Defendant failed to file any response controverting the allegations contained in the Commission’s 28 PDF. 1 believed because of that delay that the Court would simply issue a new Initial Pretrial 2 Scheduling Order. PDF, No. 51. Upon further consideration, however, counsel 3 determined that would not necessarily occur and EEOC attorney Debra Smith sent 4 Elite’s attorneys, Steven Roeser and Jim Burns, a letter dated March 4, 2021 which 5 proposed a detailed agenda for a meet and confer meeting pursuant to Rules 16 and 6 26(f), as well as Local Rule 240, to address both a discovery plan and a protocol for 7 approaching electronically stored information (“ESI”). Id. at Nos. 53, 54. Ms. Smith 8 proposed meeting on either March 14, 2021, or the following week. Id. at No. 54. 9 Neither Mr. Roeser or Ms. Smith even bothered to respond, instead simply filing the 10 motion for summary judgment, or alternatively, for dismissal given a failure to prosecute, 11 on April 5, 2021. Id. at Nos. 55-56. That is the motion now before the Court for 12 consideration. 13 Counsel for Elite refused to withdraw their motion when asked to do so, and only 14 on April 12, 2021, did counsel finally offer to meet with the EEOC in response to 15 counsel’s request more than a month beforehand. However, the date defense counsel 16 suggested, May 14, 2021, was some two months after the dates initially proposed by the 17 EEOC as enumerated above. Id. at Nos. 57-58. 18 In moving for summary judgment, Defendant blames the EEOC for having 19 engaged in no discovery that would have produced evidence to support the allegations 20 of their complaint, arguing that in the absence of any evidence the Commission cannot 21 oppose summary judgment by merely resting upon the allegations of its Complaint. 22 Despite the relatively specific allegations contained in the EEOC’s Complaint as 23 delineated above, Elite inexplicably characterizes those allegations as “conclusory” and 24 insufficient to support the existence of a disputed fact. Def.s’ Mot., ECF No. 20, 4:11-14. 25 Perhaps even more surprisingly, Defendant moved for summary judgment, arguing the 26 absence of any corroborating evidence, at a point (April. 6, 2021) when fact discovery 27 was not scheduled to close until more than six months later, on or about October 14, 28 /// 1 2021.6 Finally, Elite’s alternative request for dismissal given the EEOC’s alleged failure 2 to prosecute appears to ignore the fact, as the above-described events make clear, that 3 most of the delay in propelling the case forwarded was attributable to Defendant rather 4 than to the Commission. 5 6 STANDARD 7 8 A. Motion for Summary Judgment 9 The Federal Rule of Civil Procedure provide for summary judgment when “the 10 movant shows that there is no genuine dispute as to any material fact and the movant is 11 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 12 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 13 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 14 In a summary judgment motion, the moving party always bears the initial 15 responsibility of informing the court of the basis for the motion and identifying the 16 portions in the record “which it believes demonstrate the absence of a genuine issue of 17 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 18 responsibility, the burden then shifts to the opposing party to establish that a genuine 19 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 20 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 21 253, 288-89 (1968). 22 In attempting to establish the existence or non-existence of a genuine factual 23 dispute, the party must support its assertion by “citing to particular parts of materials in 24 the record, including depositions, documents, electronically stored information, 25 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 26 not establish the absence or presence of a genuine dispute, or that an adverse party

27 6 The operative Initial Pretrial Scheduling Order (ECF No. 4) provided for fact discovery to close 365 days following the filing of the last answer, which as indicated above here occurred on October 14, 28 2020. 1 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 2 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 3 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 4 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 5 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 6 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 7 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 8 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 9 before the evidence is left to the jury of “not whether there is literally no evidence, but 10 whether there is any upon which a jury could properly proceed to find a verdict for the 11 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 12 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 13 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 14 Rule [56(a)], its opponent must do more than simply show that there is some 15 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 16 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 17 nonmoving party, there is no ‘genuine issue for trial.’” Id. 587. 18 In resolving a summary judgment motion, the evidence of the opposing party is to 19 be believed, and all reasonable inferences that may be drawn from the facts placed 20 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 21 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 22 obligation to produce a factual predicate from which the inference may be drawn. 23 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 24 810 F.2d 898 (9th Cir. 1987). 25 B. Dismissal for Failure to Prosecute 26 Under Rule 41(b), “[if] the plaintiff fails to prosecute or to comply with these rules 27 or a court order, a defendant may move to dismiss the action or any claim against it.” 28 Rule 41(b) requires that plaintiffs prosecute their claims with “reasonable diligence” to 1 avoid dismissal. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).7 “A 2 Rule 41(b) dismissal ‘must be supported by a showing of unreasonable delay.’” 3 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v 4 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). “[O]nly unreasonable delay will support a 5 dismissal for lack of prosecution.” Nealey v. Transportacion Maritima Mexicana, S.A., 6 662 F.2d 1275, 1280 (9th Cir. 1980) (emphasis added). “The pertinent question. . . is 7 not simply whether there has been any, but rather whether there has been sufficient 8 delay or prejudice to justify a dismissal of the plaintiff’s case.” Id. (emphasis added). 9 Moreover, to the extent that delay has been occasioned by “what appears to be a good 10 faith error rather than any willful failure to prosecute”, dismissal for delay in prosecution 11 is not indicated. Cox v. County of Yuba, No. 2:09-cv-01894-MCE-JFM, 2011 WL 590733 12 at * 5 (E.D. Cal. Feb. 10, 2011). Carefully circumscribing the propriety of dismissal in the 13 face of dismissal is necessary since dismissal under Rule 41(b) has been deemed “so 14 harsh a penalty it should be imposed as a sanction only in extreme circumstances.” 15 Lal v. California, 610 F.3d 518, 525 (9th Cir. 2010) (quoting Dahl v. City of Huntington 16 Beach, 84 F.3d 363, 366 (9th Cir. 1996)). In determining whether there have been such 17 extreme circumstances which merit the harsh sanction of dismissal, courts must 18 consider: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 19 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 20 policy favoring disposition of cases on their merits; and 5) the availability of less drastic 21 alternatives. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The 22 burden of establishing the propriety of dismissal upon consideration of these factors 23 rests with the defendant. Williams v. Grant County, No. 2:15-cv-01760 SU, 2017 WL 24 1334726 at * 3 (D. Or. 2017). Whether to dismiss an action under Rule 41(b) is a matter 25 soundly within the Court’s discretion. See Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 26 1984). 27 7 Similarly. E.D. Local Rule 280(a) requires that counsel “shall proceed with reasonable diligence 28 to take all steps necessary to bring an action to issue and readiness for pretrial conference and trial.” 1 ANALYSIS 2 3 Elite’s motion for summary judgment fails without even having to determine 4 whether the EEOC was dilatory in proceeding with discovery. This is because, as the 5 EEOC aptly points out, a plaintiff alleging employment discrimination “need produce very 6 little evidence in order to overcome an employer’s motion for summary judgment.” 7 Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). As Davis also states, the 8 Ninth Circuit has “emphasized the importance of zealously guarding an employee’s right 9 to a full trial, since discrimination claims are frequently difficult to prove without a full 10 airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” Id. 11 Here, Elite claims it is entitled to summary judgment solely on grounds that the 12 EEOC has failed to produce evidence, beyond its pleadings, that any actionable 13 discrimination occurred. By presenting no evidence of its own to demonstrate that the 14 EEOC’s claims have no basis, however, Elite permits the EEOC to overcome its motion 15 by simply producing material facts sufficient to support a prima facie case of 16 discrimination on the basis of sex; namely, that the Employee was subjected to verbal or 17 physical conduct of a sexual nature, that the conduct was unwelcome, and that the 18 conduct was sufficiently severe or pervasive to alter the conditions of her employment 19 and to create an abusive work environment. Craig v. M & O Agencies, Inc., 496 F.3d 20 1047, 1055 (9th Cir. 2007) (citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 21 1995). 22 The Employee’s Declaration (ECF No. 22-4) easily satisfies that requirement, 23 which Elite had to know was a foregone conclusion given its participation in the EEOC’s 24 lengthy investigation and the fact that the Employee’s key allegations are already 25 contained in the EEOC Complaint. The Declaration nonetheless removes even any 26 esoteric doubt on this issue. The Employee claims she was just eighteen years of age 27 when hired by Elite, and had just turned nineteen when Elite transferred, in July of 2019, 28 a new Store Manager, Randy Dela Cruz, to the Arden Fair Mall store where she worked. 1 Accordingly, Mr. Dela Cruz, a married man in his thirties, became her immediate 2 supervisor. Employee Decl., ¶¶ 3-5. 3 Despite Mr. Dela Cruz’s status as her boss and the age differential between them, 4 by October of 2017 the Employee claims he began making unwanted comments to her 5 of a sexual nature once or twice per shift when they worked together, which was typically 6 several times a week. Those comments included statements to the effect that “we 7 should hang out”, “we should hook up”, “you should send me pictures”, “I want to touch 8 you”, “let’s get a hotel together”, “we should get a hotel and hook up”, and “let’s have a 9 one-night stand.” Id. at ¶ 6. The Employee tried to reject these suggestions, but 10 Dela Cruz’s comments continued, causing her to complain to Edwin Pawley, Elite’s 11 District Sales Manager, who she understood to be Mr. Dela Cruz’s boss. Id. at ¶¶ 7-8. 12 The Employee claims that Mr. Pawley simply “laugh[ed] if off, telling [her] that 13 Mr. Dela Cruz was probably just joking and not being serious.” Id. at ¶ 8. 14 The Employee’s Declaration indicates that Mr. Dela Cruz’s conduct nonetheless 15 soon moved from even beyond these unwanted sexual comments. On November 17, 16 2017, two days before Elite’s upcoming holiday party, the Employee claims that when 17 she told him she planned to shop in the Arden Fair Mall for something to wear to the 18 event, Dela Cruz insisted on accompanying her. After suddenly telling the Employee he 19 wanted to slap her buttocks, and despite being asked by the Employee not to do so, 20 Mr. Dela Cruz went ahead anyway. When the Employee immediately confronted him, 21 questioning why he thought it was okay to touch her, he said “he couldn’t help himself.” 22 Id. at ¶ 9. 23 Then, after the company holiday party held on November 19, 2021 ended, 24 Mr. Dela Cruz invited staff back to a room he had rented, where, according to the 25 Employee, the group continued drinking and celebrating. When, at about 12:30 a.m., 26 her coworkers began leaving, the Employee states she texted her boyfriend for a ride 27 home, but ended up being the sole employee remaining before he arrived. At that point, 28 according to the Employee, Mr. Dela Cruz grabbed her by the arms and started kissing 1 her mouth and neck. Although she tried to resist, he pushed her onto the bed. Despite 2 trying to leave and telling Dela Cruz to stop, the Employee states he was able to pull her 3 pants down and expose her genitals. The employee states that Dela Cruz then kissed 4 and licked her pelvic area. When she eventually was able to get up and run to the door, 5 Dela Cruz grabbed her again but backed off when she began to scream. Id. at ¶¶ 10-12. 6 The Employee states that she not only filed a criminal report with the Rocklin 7 Police Department the next morning, she also called Elite’s CEO, Edguardo Melgar to 8 report the assault and thereafter followed up with an email informing Melgar that she had 9 filed a police report. Nonetheless, despite her ongoing emotional and psychological 10 trauma as a result of Dela Cruz’s attack, Melgar refused to immediately separate 11 Mr. Dela Cruz from her work environment, stating that he could not transfer him given his 12 status as the store manager. Id. at ¶¶ 13-15. 13 The additional details provided by the Employee’s declaration easily surmount the 14 relatively low evidentiary bar needed to overcome Elite’s summary judgment motion, 15 particularly since physical assault involving an intimate bodily part, as alleged by the 16 Employee, “constitutes one of the most severe forms of sexual harassment’ (see 17 Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001), not to mention the pervasive oral 18 commentary to which the Employee was subjected. The Court is troubled, to say the 19 least, by the likelihood, given the Commission’s prior investigation in which Defendant 20 participated, that Elite knew of these additional evidentiary details yet proceeded with its 21 motion for summary judgment anyway. Elite’s request for summary judgment is utterly 22 without merit and is thus DENIED. 23 Defendant’s alternative request that the EEOC Complaint be dismissed for failure 24 to prosecute fares no better. The Commission’s unrebutted evidence indicates that 25 defense counsel claimed they would respond to the Complaint, yet failed to do so, 26 thereby necessitating an entry of default against Elite. While Defendant tries to fault the 27 EEOC for not reducing the default to judgment, the fact remains that it was Elite who 28 failed to request that the default be set aside until August 14, 2020, more than five 1 months after it had been entered. Then, once Defendant successfully set aside the 2 judgment, it was the Commission and not Defendant8 that requested a scheduling 3 conference on March 4, 2021 so that discovery matters could be addressed once an 4 answer had been filed. Rather than respond to that request, Elite simply filed the 5 present motion. As has already been made clear, that motion is predicated on the 6 notion that the EEOC was not diligent in proceeding with discovery despite the fact that it 7 was the default proceedings necessitated by Defendant’s failure to timely respond that 8 led to the majority of the delay, and even more significantly despite the fact that over six 9 months remained before the discovery deadline concluded in any event. 10 No matter how characterized, Defendant’s request for dismissal for failure to 11 prosecute is woefully inadequate. A Rule 41(b) motion must be supported by a showing 12 of unreasonable delay by the moving party, and here no such showing has been made. 13 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). Elite’s Motion therefore fails 14 on its face without even applying the balancing test identified by the case law, which is 15 triggered by only by delay under extreme circumstances which potentially merits the 16 harsh remedy of dismissal. See Lal v. California, 610 F.3d at 525; Yourish v. California 17 Amplifier, 191 F.3d at 990. 18 19 CONCLUSION 20 21 This Court having to consider this baseless motion wasted everyone’s time and 22 this district’s limited judicial resources. Defense counsel is admonished that the Court 23 will not look kindly on future motions of this sort, motions that have no basis in the law 24 and no support in the record. Any future such filings will result in the imposition of 25 /// 26 /// 27 8 Between October 15, 2020 and April 5, 2021, a period of almost five months, Defendant made 28 no effort to contact the EEOC whatsoever. Decl. of Debra A. Smith., ECF No. 22-3, ¶ 39. 1 | sanctions. For all the reasons set forth above, Elite’s Motion for Summary Judgment, or 2 | alternatively for dismissal for failure to prosecute (ECF No. 20), is DENIED. 3 IT |S SO ORDERED. 4 5 | Dated: January 27, 2022 LT ° Whip AX XC - SENIOR UNITED STATES URTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12