Villalobos v. Basis Educational Group LLC

• Court: District Court, D. Arizona
• Decided: August 24, 2022
• Docket: 2:20-cv-00850
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Edit Villalobos, No. CV-20-00850-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Basis Educational Group LLC,

13 Defendant. 14 15 Pending before the Court is Defendant Basis Educational Group LLC’s Motion for 16 Summary Judgment (Doc. 49). Plaintiff Edit Villalobos has filed a Response (Doc. 54),1 17 and Defendant filed a Reply (Doc. 66).2 For the following reasons the Court will deny 18 Defendant’s Motion except that the Court will grant its request to enter summary judgment 19 in its favor for Plaintiff’s punitive damages claim. 20 I. Background 21 Plaintiff is a former employee of Defendant, and she alleges that she suffered from 22 a discriminatory work environment and retaliation at the hands of her former supervisor, 23 Ms. Elana Campbell. (Docs. 49 at 2; 54 at 2). In January 2020, Plaintiff filed a complaint

24 1 Plaintiff requested oral argument on this matter. The Court finds that the issues have been fully briefed and oral argument will not aid the Court’s decision. Therefore, the Court will 25 deny the request for oral argument. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 26

27 2 Defendant has moved to strike Plaintiff’s Exhibits J, K, L, M, Q, and R. (Doc. 66 at 3). The Court denies this request because these exhibits are not necessary for the resolution of 28 the Motion for Summary Judgment. Defendant may renew the motion to strike at a later date. 1 with Defendant’s human resources department. (Docs. 49 at 2; 54 at 7). Plaintiff alleges 2 that Ms. Campbell made multiple racially discriminatory statements against Plaintiff 3 herself and others. (Doc. 1 at 1–7). Defendant investigated the matter but took no remedial 4 action, and Plaintiff resigned. (Docs. 49 at 2; 54 at 9). This action followed. Defendant 5 now seeks summary judgment on all of Plaintiff’s claims. 6 II. Legal Standard 7 A court will grant summary judgment if the movant shows there is no genuine 8 dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. 9 Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A factual dispute is 10 genuine when a reasonable jury could return a verdict for the nonmoving party. Anderson 11 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, a court does not weigh evidence 12 to discern the truth of the matter; it only determines whether there is a genuine issue for 13 trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994). A fact is 14 material when identified as such by substantive law. Anderson, 477 U.S. at 248. Only 15 facts that might affect the outcome of a suit under the governing law can preclude an entry 16 of summary judgment. Id. 17 The moving party bears the initial burden of identifying portions of the record, 18 including pleadings, depositions, answers to interrogatories, admissions, and affidavits, 19 that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the 20 burden shifts to the non-moving party, which must sufficiently establish the existence of a 21 genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 22 Corp., 475 U.S. 574, 585–86 (1986). The evidence of the non-movant is “to be believed, 23 and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. But 24 if the non-movant identifies “evidence [that] is merely colorable or is not significantly 25 probative, summary judgment may be granted.” Id. at 249–50 (citations omitted). 26 III. Discussion 27 Defendant seeks summary judgment on all Plaintiff’s claims, but neither party states 28 exactly what Plaintiff’s claims are with clarity. Plaintiff’s Complaint requests a judgment 1 under 42 U.S.C. § 1981, Title VII, and the Americans with Disabilities Act (“ADA”), to 2 include punitive damages. (Doc. 1 at 8). In the parties’ Joint Case Management Report 3 (“Report”) Plaintiff states she is bringing claims for “discriminatory harassment” and 4 retaliation under § 1981 and Title VII, as well as a constructive discharge claim (which is 5 not mentioned in the Complaint). (Doc. 15 at 2–3). 6 The Court finds that Plaintiff has sufficiently indicated that she is bringing claims 7 for hostile work environment and retaliation under § 1981 and Title VII, which are alluded 8 to in the Complaint and discussed in the Joint Case Management Report. 9 The difficulties arise when considering the allegations of ADA violations and 10 constructive discharge, which may be best described as quasi-claims. The parties do not 11 address the ADA claim in their Report or in the briefing on Defendant’s Motion for 12 Summary Judgment. Although Defendant states in its first sentence that it seeks “summary 13 judgment on all claims[,]” (Doc. 49 at 1), Plaintiff’s Response makes no argument that the 14 ADA claim survives summary judgment. With so little attention paid to the ADA claim, 15 both in the Complaint and in Plaintiff’s Response, the Court is left with the conclusion that 16 Plaintiff has abandoned it. If the Plaintiff herself makes no effort to defend the claim, then 17 the ADA claim “claimant cannot possibly win relief” and so will be dismissed. Omar v. 18 Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). As for the constructive discharge 19 claim, it is simply not pled in the Complaint. Therefore the Court will not consider it 20 because it is not properly pled. See Fed. R. Civ. P. 8(a)(2). 21 Having clarified what Plaintiff’s claims actually are, the Court proceeds to evaluate 22 them and will conclude that both survive summary judgment. Then, the Court will turn to 23 Defendant’s arguments regarding vicarious liability and punitive damages. 24 a. Hostile Work Environment 25 The elements of a hostile work environment claim are the same under Title VII and 26 § 1981. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 n.3 (9th Cir. 2008). 27 To prevail, Plaintiff must show she was (1) subjected to “verbal or physical conduct of a 28 racial” nature; (2) “ that the conduct was unwelcome; and (3) that the conduct was 1 sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and 2 create an abusive work environment.” Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 3 1998). To determine whether such conduct was sufficiently severe or pervasive, courts 4 “look to all the circumstances, including the frequency of the discriminatory conduct; its 5 severity; whether it is physically threatening or humiliating, or a mere offensive utterance; 6 and whether it unreasonably interferes with an employee’s work performance.” Johnson 7 v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (cleaned up). 8 Here, Plaintiff alleges that Ms. Campbell’s statements and conduct include: (1) 9 calling African Americans “angry, hostile and aggressive[,]” (2) stating that she was trying 10 to “catch” African American students doing something wrong while she monitored security 11 cameras, (3) stating that she kept a “watch list” of “potential terrorists” of Muslim students, 12 (4) calling Plaintiff an “illegal immigrant[.]” (Doc. 54 at 3–4). 13 The parties dispute whether racial comments directed toward other people can give 14 rise to a hostile work environment claim. Plaintiff argues that “discriminatory comments 15 and conduct not personally directed at an employee” may serve as a basis for a hostile work 16 environment claim. (Doc. 54 at 12). Defendant argues that Plaintiff must show she 17 suffered harassing verbal or physical conduct because of her race. (Doc. 66 at 7). 18 The case of Reynaga v. Roseburg Forest Products is instructive. 847 F.3d 678 (9th 19 Cir. 2017). There, the Ninth Circuit found that a jury could find that a slew of alleged 20 “explicit racial and national comments” referencing both the plaintiff’s race and other 21 races, “would be highly offensive and demeaning to anyone,” including the plaintiff. Id. 22 at 687–88. The Court, therefore, finds that comments involving both Plaintiff’s race and 23 the race of others can serve as the basis for a hostile work environment claim. 24 In so finding, the Court acknowledges Defendant’s citation to Manatt v. Bank of 25 America, NA, in which the Ninth Circuit stated that a hostile work environment claim must 26 show the comments and conduct must be made “because of [a plaintiff’s] race . . . .” 339 27 F.3d 792, 798 (9th Cir. 2003). But this statement of the claim’s elements was narrowly 28 tailored to the facts of the case, and subsequent decisions form the Ninth Circuit have not 1 repeated the elements in this way. See e.g., Reynaga, 847 F.3d at 686 (stating that a 2 plaintiff need only show she was “subjected to verbal or physical conduct of a racial . . . 3 nature”). 4 Defendant also argues that these comments, as well as the conduct exhibited by Ms. 5 Campbell, are “incidents of rudeness or insensitivity” that cannot give rise to an actionable 6 hostile work environment claim. (Doc. 66 at 7). Certainly, the Court is aware that rude 7 and insensitive behavior may not give rise to a hostile work environment. See Faragher v. 8 City of Boca Raton, 524 U.S. 775, 787 (1998). Here, however, there are sufficient instances 9 of comments and conduct such that a reasonable jury could find a hostile work 10 environment. 11 b. Retaliation 12 Title VII and § 1981 also share the same elements for a claim of retaliation, which 13 that Plaintiff (1) engaged in a protected activity, (2) suffered an “adverse employment 14 action,” and (3) that a “causal link” exists between the two. Surrell v. California Water 15 Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). 16 Plaintiff argues that she engaged in a protected activity when she complained about 17 Ms. Campbell’s conduct to Defendant and to the EEOC. (Doc. 54 at 13). As a result, she 18 claims to have suffered adverse employment actions including: (1) the “temper tantrum” 19 that Ms. Campbell threw, (2) rude treatment in general by Ms. Campbell, (3) accusations 20 by Ms. Campbell that Plaintiff was failing in her duties, and (4) when Ms. Campbell ate a 21 “nut bar” and disposed of it at Plaintiff’s desk, which caused Plaintiff to have an allergic 22 reaction. (Doc. 54 at 14–15). 23 Defendant argues that Ms. Campbell’s actions are not the type of conduct that 24 constitutes an adverse employment action. But the Court disagrees. While it is true that 25 “[n]ot every insult or harassing comment will” give rise to an adverse employment action, 26 the Ninth Circuit that harassing behavior may be actionable when it is “‘sufficiently severe 27 or pervasive to alter the conditions of the victim’s employment and create an abusive 28 working environment.’” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) (quoting 1 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). 2 Here, the Court is persuaded that the incident involving the nut bar gives rise to 3 harassment. Plaintiff’s deposition testimony claims that Ms. Campbell knew that she was 4 allergic to nuts and that, after Plaintiff submitted a complaint to Defendant, Ms. Campbell 5 stood over Plaintiff’s desk, took a bite of the bar, threw the wrapper away in the trash and 6 started “trying to type” on Plaintiff’s laptop. (Doc. 58-4 at 12). Plaintiff suffered an 7 allergic reaction and “ended up going to urgent care . . . .” (Id.) 8 Defendant argues that Plaintiff fails to establish that her complaint was the cause of 9 this action. But the Court finds otherwise. A causal link may be inferred from “proximity 10 in time” between when a plaintiff engaged in a protected activity and the adverse 11 employment action. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). Both 12 Plaintiff’s complaint to Defendant and the incident with the nut bar are claimed to have 13 happened in the same month. (Doc. 58-4 at 12). This is close enough to create a genuine 14 issue of fact as to causation. The Court finds that there are genuine disputes of material 15 facts such that summary judgment is not appropriate on Plaintiff’s retaliation claim. 16 Having found that Plaintiff’s claims survive summary judgment, the Court turns to 17 Defendant’s remaining arguments regarding vicarious liability and punitive damages. 18 c. Vicarious Liability 19 Defendant argues that it cannot be held vicariously liable for Ms. Campbell’s 20 actions. Under Title VII claims, an employer’s liability depends on whether the harassing 21 employee is the victim’s co-worker or supervisor. Vance v. Ball State Univ., 570 U.S. 421, 22 424 (2013). If the harasser is the victim’s co-worker, the employer is liable only if it was 23 negligent in controlling working conditions. Id. If the harasser is a supervisor, only then 24 is an employer vicariously liable for the harasser’s actions. Id. at 431. A supervisor is one 25 whom “the employer has empowered” to “take tangible employment actions” against the 26 victim, such as hiring, firing, and the significant reassignment of duties.” Id. 27 Defendant argues that Plaintiff has “failed to assert any theory of vicarious liability 28 against” Defendant and so should be “precluded” from holding it liable for Ms. Campbell’s 1 conduct. (Doc. 49 at 8). (Doc. 54 at 15). Defendant also argues that Ms. Campbell is not 2 a supervisor because she “did not take any tangible employment actions against Plaintiff.” 3 (Doc. 49 at 8). 4 The Court finds that whether Defendant is vicariously liable, as opposed to only 5 liable for its own negligence, remains an issue for the jury. The Complaint alleges that Ms. 6 Campbell was Plaintiff’s “direct supervisor[.]” (Doc. 1 at ¶ 11). It also alleges that 7 Defendant failed to conduct a proper investigation after she filed her complaints regarding 8 Ms. Campbell’s behavior. (Id. at ¶¶ 54, 64). From these allegations, Plaintiff plausibly 9 alleges a theory of vicarious liability. And although Defendant argues that it cannot be 10 vicariously liable because there is no evidence that Ms. Campbell actually took a tangible 11 employment action against Plaintiff, this argument misconstrues the test for liability, which 12 is whether Ms. Campbell was empowered to take tangible employment actions, not whether 13 she actually did. See Vance, 570 U.S. at 431. The jury will determine whether Ms. 14 Campbell is a supervisor or a co-worker, which will, in turn, determine whether Defendant 15 is vicariously liable. 16 d. Punitive Damages 17 Finally, Defendant argues that the Court should find there is no evidence showing 18 that Defendant is liable for punitive damages. Punitive damages are available under Title 19 VII if Plaintiff shows the employer acted “with malice or with reckless indifference” to 20 Plaintiff’s rights. 42 U.S.C. § 1981a(b)(1). Plaintiff argues that Defendant acted with 21 reckless indifference, but she cites to no evidence in support of this position. (Doc. 54 at 22 18). Elsewhere in the Response, Plaintiff argues that the individual who conducted 23 Defendant’s investigation of Plaintiff’s claims “admitted that he could not be certain” that 24 Plaintiff’s claims were “invalid . . . .” (Doc. 54 at 8). For support, Plaintiff cites to 25 deposition testimony, which shows an investigation was conducted but that Plaintiff’s 26 complaints could not be corroborated. (Doc. 54-2 at 22). This does not suffice to show a 27 genuine dispute as to whether Defendant acted with reckless indifference. The Court will 28 grant Defendant’s request to grant judgment in its favor on Plaintiff’s punitive damages claim. 2\| IV. Conclusion 3 The Court denies Defendant’s Motion for Summary Judgment, except that the Court 4|| will enter judgment in Defendant’s favor for the claim of punitive damages. 5 Accordingly, 6 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment 7\| (Doc. 49) is denied in part and granted in part. There being no just reason for delay, the 8 || Clerk of Court shall enter judgment in Defendant’s favor for the claim of punitive damages. 9|| See Fed. R. Civ. P. 54(b). 10 IT IS FURTHER ORDERED that Plaintiff's claim under the Americans with 11 |} Disabilities Act, is dismissed. 12 IT IS FINALLY ORDERED that having resolved the only dispositive motion, the 13 | parties shall comply with paragraph ten of the Rule 16 Scheduling Order with respect to notice of readiness for pretrial conference. (Doc. 16 at 7-8). 15 Dated this 24th day of August, 2022. 16 17 . Ja — 18 Ke Diangf 19 United States District Judge 20 21 22 23 24 25 26 27 28

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