Harassment and racially-hostile work environment

Federal District Court Opinions

VALDEZ v. BIG O TIRES, INC., (Ariz. 2006) Edgardo R. Valdez, Plaintiff, v. Big O Tires, Inc., a Nevada corporation; JDR, LLC, an Arizona limited liability company, Defendants. No. CV-04-1620-PHX-JAT. United States District Court, D. Arizona. June 27, 2006

ORDER

JAMES TEILBORG, District Judge

Pending before the Court is the Defendants’ Motion for
Summary Judgment (doc. 19). The Court now rules on the
motion.

I. INTRODUCTION

The Plaintiff in this case, Edgardo Valdez, is a Mexican
American who was employed by JDR, L.L.C. (“JDR”). Pursuant
to a franchise agreement, JDR uses the trade name “Big O
Tires.”

On August 6, 2004, the Plaintiff filed a Complaint against
JDR and Big O Tires in the United States District Court for
the District of Arizona alleging causes of action arising
under Title VII, 42 U.S.C.A. 2000(e) (West 2003), and 42
U.S.C.A. § 1981 (West 2003). Specifically, the
Plaintiff alleges that the Defendants subjected him to a
racially-hostile work environment and retaliated against
him when he complained about the harassment. The Plaintiff
alleges that these events ultimately resulted in his
resignation. The Complaint alleges Page 2 a federal
question and the basis for this Court’s jurisdiction is 28
U.S.C.A. § 1331 (West 1993).

II. LEGAL ANALYSIS AND CONCLUSION

The standard for summary judgment is set forth in Rule
56(c) of the Federal Rules of Civil Procedure. Under this
rule, summary judgment is properly granted when: (1) no
genuine issues of material fact remain; and (2) after
viewing the evidence most favorably to the non-moving
party, the movant is clearly entitled to prevail as a
matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53 (1986);
Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89
(9th Cir. 1987).

The Defendants argue that they are entitled to judgment as
a matter of law because: (1) Big O Tires is not liable for
the acts of JDR’s employees; (2) the Plaintiff has failed
to alleged facts amounting to a constructive discharge; (3)
the Plaintiff has failed to allege facts sufficient to
support a hostile-work-environment claim; and (4) the
Plaintiff has failed to allege facts sufficient to support
a retaliation claim.

A. Liability of Big O Tires

The Defendants argue that Big O Tires is merely a trade
name used by Defendant JDR, pursuant to a franchise
agreement between the Defendants. The Defendants argue that
JDR uses the trade name Big O Tires but does not do
business as Big O Tires. The Defendants also argue that Big
O Tires, which is a Nevada corporation, and JDR, which is
an Arizona limited liability company, are entirely separate
and unrelated legal entities. They argue that Big O Tires
does not have any responsibility for JDR’s employment
practices or decisions. The Defendants argue that, given
the above factual allegations, Big O Tires cannot be held
liable for the alleged discriminatory acts of JDR’s
employees.

The Court agrees that Big O Tires cannot be liable to the
Plaintiff for the claims alleged in his Complaint unless
the Plaintiff can show some facts suggesting the existence
of some type of employment relationship between Big O Tires
and the Plaintiff, or an agency relationship between JDR
and Big O Tires. See, e.g., E.E.O.C. v. Pacific Maritime
Ass’n, 351 F.3d 1270, 1273 (9th Cir. 2003). However, the
Plaintiff completely failed in his Page 3 Response in
Opposition to the Defendants’ Motion for Summary Judgment
to present any law, evidence, or even factual allegations
contradicting the Defendants’ position that no such
relationships exist. The Plaintiff conceded at Oral Argument
on June 19, 2006, that he does not contest the Defendants’
Motion for Summary Judgment as it applies to Defendant Big
O Tires.[fn1]

A party opposing summary judgment cannot merely rest on
its pleadings, it must produce some significant probative
evidence tending to contradict the moving party’s
allegations and thereby creating a material question of
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256-57, 106 S.Ct. 2505, 2513-14 (1986) (holding that the
plaintiff must present affirmative evidence in order to
defeat a properly supported motion for summary judgment);
First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88
S.Ct. 1575, 1592 (1968). The Plaintiff in this case has
completely failed to raise a question of fact as to whether
there is a direct or indirect employment relationship
between the Plaintiff and Big O Tires, or an agency
relationship between JDR and Big O Tires. See, e.g.,
Sun-Maid Growers, v. NLRB, 618 F.2d 56, 59 (9th Cir. 1980)
(discussing when a “joint employer” relationship exists);
NLRB v. Don Burgess Constr., 596 F.2d 378, 384 (9th Cir.
1979), cert. denied, 444 U.S. 940, 100 S.Ct. 293 (1979)
(discussing when two business entities can be considered a
“single employer”); see also Evans v. McDonalds Corp., 936
F.2d 1087, 1090 (10th Cir. 1991) (even where a franchisor
provided training materials and conducted frequent
inspections, it did not have control over franchisee’s
labor relations, and could not considered an employer for
purposes of Title VII); Alberter v. McDonalds Corp., 70
F.Supp.2d 1138, 1145 (D. Nev. 1999) (ability to terminate
the franchise agreement, without more, does not establish
the requisite degree of control to demonstrate that an
agency relationship exists for purposes of Title VII
liability).

The Defendants’ Motion for Summary Judgment is granted
with respect to all claims alleged against Defendant Big O
Tires. Page 4

The Court will now address the merits of the Plaintiff’s
claims as they apply to Defendant JDR.

B. Hostile Work Environment

The Defendants contend that the Plaintiff has failed to
raise a genuine issue of material fact regarding whether
the working environment at the Plaintiff’s place of
employment was hostile and discriminatory or whether the
Defendants engaged in a pattern or practice of
discriminatory treatment based on race or national origin.

Hostile-work-environment claims based on racial harassment
are reviewed under the same standard as those based on
sexual harassment. McGinest v. GTE Service Corp., 360 F.3d
1103, 1115 (9th Cir. 2004). The Ninth Circuit has set forth
a three-factor test to determine whether a working
environment is “hostile” within the meaning of Title VII or
section 1981.[fn2] The plaintiff must show that: (1) he was
subjected to verbal or physical conduct based on his
membership in a protected class;[fn3] (2) the conduct was
unwelcome; and (3) the conduct was sufficiently severe or
pervasive to alter the conditions of his employment and
create an abusive working environment. Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986)
(sexually-hostile work environment); Jordan v. Clark, 847
F.2d 1368, 1373 (9th Cir. 1988) (same).

In order to be actionable under Title VII, the work
environment must be both objectively and subjectively
offensive: one that a reasonable person would find hostile
or abusive, and one that the victim did in fact perceive to
be hostile and abusive. Harris v. Forklift Sys., Inc., 510
U.S. 17, 21-22, 114 S.Ct. 367, 371 (1993) (sexually-hostile
work environment); McGinest, 360 F.3d at 1113
(racially-hostile work environment). Whether an environment
is “hostile” or “abusive” can be determined only by looking
at all the Page 5 circumstances. McGinest, 360 F.3d at
1113. Relevant factors include: (1) the frequency of the
discriminatory conduct; (2) the severity of the conduct;
(3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether
the conduct unreasonably interferes with an employee’s work
performance. Harris, at 21-22, 114 S.Ct. at 371; McGinest,
360 F.3d at 1113. The required showing of severity or
seriousness of the harassing conduct varies inversely with
the pervasiveness or frequency of the conduct. McGinest,
360 F.3d at 1113; Ellison v. Brady, 924 F.2d 872, 878 (9th
Cir. 1991) (sexually-hostile work environment).

For the reasons set forth below, the Court finds that there
is a genuine issue of material fact regarding whether the
Plaintiff was subjected to a hostile work environment.

The Plaintiff alleges that in approximately June of 2000,
Mr. Craig Secia became his direct supervisor. The Plaintiff
testified at his deposition that the first time he met Mr.
Secia, the supervisor asked him if he was a “sand nigger.”
The Plaintiff testified that he asked Mr. Secia what he
meant, and Mr. Secia responded that “I just don’t like sand
niggers, period. They bring me misery and bad luck. I don’t
like them.” The Plaintiff testified that he told Mr. Secia
that he was Mexican American, and Mr. Secia intentionally
“bumped his shoulder” and said, “we are going to get along
just fine.”

The Plaintiff alleges that over the next seven months, Mr.
Secia repeatedly referred to the Plaintiff while he was
working as a “wetback,” “stupid wetback,” “sand nigger,”
“stupid Mexican,” “dumb Mexican,” “lazy Mexican,” “illegal
alien,” “spic” and “stupid ass beaner.” The Plaintiff
alleges that he was told by Mr. Secia that “the only good
Mexican is a dead Mexican,” and that the supervisor made
numerous other racially disparaging remarks about Hispanic,
Mexican, and Mexican-America people. The Plaintiff
testified at his deposition that Mr. Secia would often
physically bump him on the shoulder when he was at the
counter.

The Plaintiff testified at his deposition that Mr. Secia
told the Plaintiff that he had to “handle” customers who
were Mexican or Hispanic because, “these are your stupid,
motherfucking people, fucking wetbacks, wetties.” The
Plaintiff testified that Mr. Secia Page 6 called him at
home on numerous occasions and left offensive messages on
his answering machine. For example, the Plaintiff testified
that on one occasion Mr. Secia called and left a message
claiming to be from the “IRS and Immigration Recovery
System” and stated that they are looking for the Plaintiff
because his “green card has expired and we are looking to
pick him up.”

The Plaintiff testified that he told Mr. Secia directly
that he did not appreciate being called a “wetback,” but
that Mr. Secia responded, “I don’t care if you like it or
not. You are a wetback. Your parents are from Mexico.” The
Plaintiff testified that he told Mr. Secia that he served
seven years in the United States Army honorably, and Mr.
Secia responded, “It doesn’t matter. You are a stupid ass
beaner wetback. You are just a dumb Mexican as far as I am
concerned.” The Plaintiff testified that when he did well
on the job, Mr. Secia would say things like, “not bad for a
Mexican wetback.”

In addition to the above conduct and racial slurs that
were directed specifically at the Plaintiff and his
protected class, the Plaintiff testified that Mr. Secia
constantly subjected the Plaintiff to racial epithets and
derogatory remarks about other racial groups. For example,
the Plaintiff alleges that Mr. Secia referred to
African-American people as “niggers,” who are “in and out
of jail,” Chinese people as “chinks,” Jewish men as “little
Jewboys,” Arab people as “sand niggers,” and
racially-diverse couples as “zebras.” The Plaintiff alleges
that Mr. Secia told him that he “hated Jews,” and that
Jewish people are so cheap that he does not like to do
business with them, and that they “squeak when they walk.”

The Plaintiff testified that if Mr. Secia saw a customer
of “Eastern”[fn4] descent, he would tell the Plaintiff
“when he comes in the store, tell him we don’t have
anything.” And that if “they ask for tires, you send them
to another store. If he wants an oil change, tell him we
are booked. And that is the way I run my ship here. This is
the way I am. I don’t want them. They are bad luck to me.”
Page 7

The Plaintiff alleges that Mr. Secia called an
African-American gentleman the Plaintiff worked with a
“black nigger and that his nickname is midnight; I have
always called him midnight.” The Plaintiff testified at his
deposition that Mr. Secia made racial slurs about
African-American gentlemen who worked with the Plaintiff in
the presence of Mr. Secia’s supervisors. For example, the
Plaintiff testified that Mr. Secia told the Plaintiff he
called a particular gentleman “midnight” because he is a
“black motherfucker” and that “I can say those things.” The
Plaintiff testified that upon hearing Mr. Secia’s comments,
Mr. Secia’s supervisor, Ron Britton, just “turned red,
smiled, and walked away.”

The Plaintiff testified that on another occasion, Mr.
Secia “mimed hand motions” and stated, “Look at Woodrow. He
is moving his hands like an orangutan, like his heritage.
That’s what he is. He is a monkey. Look at him. That’s why
he is built like that.” The Plaintiff testified that Mr.
Secia’s supervisors, Doug and Ron Britton, were present and
just shook their heads and smiled.

The Plaintiff testified that on a third occasion, an
African-American gentleman was late for work and Mr. Secia
called him at home. The Plaintiff testified that he
overheard Mr. Secia say to the gentleman, “Look here you
black nigger motherfucker. Get your ass in here. You are
not on nigger time.” The Plaintiff testified that Mr. Secia
told the gentleman, “You are eating watermelon. Sucker, you
come in and go to work right now.”

The Plaintiff testified that these types of harassing and
discriminatory remarks and incidents occurred at least
three times a day over a period of seven months. The
Plaintiff testified that often one or both of Mr. Secia’s
supervisors were on the job site and could hear what Mr.
Secia was saying and did not do anything but smile, shake
their heads, or walk away. The Plaintiff testified that the
racial slurs “turned [his] stomach,” and during the period
of time that he was subjected to Mr. Secia’s conduct the
Plaintiff had stomach problems and trouble sleeping.

The Plaintiff alleges that he complained about Mr. Secia’s
conduct to both of Mr. Secia’s supervisors, Ron and Doug
Britton, on two separate occasions. The Plaintiff alleges
that neither of the supervisors took any corrective
measures and in fact told the Plaintiff that Page 8 he
should “just get over it,” because Mr. Secia is “just that
way.” The Plaintiff testified that he told the supervisor
that he can “handle Mr. Secia’s cussing,” and that he can
“understand that is just the way he is.” But that it
bothers him when Mr. Secia tells him things like, “I can
get any beaner or wetback from the street and take your
place.” The Plaintiff alleges that he was told to “just get
over it.”

The Plaintiff testified at his deposition that shortly
after he complained about Mr. Secia’s conduct, the
Plaintiff went back to ask for a pay raise because his wife
was about to give birth. The Plaintiff testified that he
listed the qualifications he believed entitled him to a
raise: (1) he is bilingual; (2) he is an expert salesman
and brings in approximately 32 percent of the company
business; (3) he is good with customers; (4) he is computer
literate; (5) he is a hard worker; and (6) he is honest.
The Plaintiff testified that the supervisor told him that
he would speak to Mr. Secia about the raise. The Plaintiff
alleges that he was told by Mr. Secia that he would not get
the raise because “I can get any wetback, any guy south of
the border. I can train them like you. I could pay them
less, less money. I could pay them pennies compared to what
you want.”

The Plaintiff testified that the racist conduct continued
and Mr. Secia would say to him on a daily basis, “How are
you doing, stupid wetback.” If the Plaintiff objected to
the comments, Mr. Secia would respond, “I address people
that way. If you don’t like it so what.” The Plaintiff
testified that shortly after these events occurred, he went
to Doug Britton, and told him that he wanted to make his
job a career but that he can’t deal with Mr. Secia’s
conduct. The Plaintiff testified that he told Mr. Britton
that he wanted to quit because of the way that he was being
treated, and that he wanted to know if anything could be
done about Mr. Secia’s conduct. He testified that Mr.
Britton told him that he didn’t want to lose the Plaintiff
because he was his “money maker,” and that he would see
what he could do. The Plaintiff testified that shortly
after the conversation, he was given the raise that he had
previously asked for, but nothing was done about Mr.
Secia’s conduct.

The Plaintiff testified that following the conversation
with Mr. Britton, Mr. Secia told the Plaintiff that he
didn’t want to give him a raise but that it was the
Brittons’ decision. Mr. Page 9 Secia also told the
Plaintiff he hired an installer and the Plaintiff was going
to train this person so that the new person could “handle
the workload.” The Plaintiff testified that the amount of
his paychecks are based on sales, and that Mr. Secia hired
this other individual to divide up the sales, to retaliate
against the Plaintiff for reporting Mr. Secia’s conduct to
his supervisor.

The Plaintiff alleges that the discriminatory conduct
continued and became so intolerable that he was eventually
forced to resign. The Plaintiff testified that Mr. Secia
continued to tell him on a nearly daily basis that “A good
Mexican is a dead Mexican.” The Plaintiff also testified
that in January of 2001, Mr. Secia called a meeting and
asked employees to bring salt and pepper. The Plaintiff
testified that Mr. Secia placed salt on one half of a piece
of a folded paper, and pepper on the other half. He
testified that Mr. Secia asked if anyone knew what the salt
and pepper represented. The Plaintiff testified that he
asked Mr. Secia if they were really going to have a
meeting, and that Mr. Secia responded that if anyone left
they would be fired. The Plaintiff testified that Mr. Secia
then asked the Plaintiff what he thought the
salt-and-pepper demonstration meant. The Plaintiff
testified that he responded that it looks like the salt and
pepper are separated. Mr. Secia stated, “Yep. That’s the
black people at the soup line at the Washington One Million
Man March, and they are poor and ready to get fed by the
superior white man.”

The Plaintiff testified that the above incident was Mr.
Secia’s “last discriminating joke, which is not a joke to
[the Plaintiff],” before the Plaintiff left a letter of
resignation on January 22, 2001.

The Defendants in this case dispute the Plaintiff’s
allegations, and argue that the Plaintiff does not have
standing to bring a hostile-work-environment claim because
most of the remarks alleged were directed at other
(non-Mexican, non-Hispanic, and non-Mexican-American)
racial groups. They also argue that Mr. Secia’s conduct
merely amounts to “simple teasing and offhand comments”
that do not rise to the level of severity necessary to
prove a hostile-work-environment claim. Page 10

First, the Court disagrees that the Plaintiff lacks
standing to bring a hostile-work-environment claim merely
because some of the offensive conduct was directed at other
racial minority groups. The Ninth Circuit has held that
when racial hostility pervades the workplace, an employee
can establish a violation of Title VII even if he was not
the direct target of the hostility. McGinest, 360 F.3d at
1117. When racial animus motivates a person to make
provocative comments in the presence of an individual in
order to anger and harass that person, the comments are
“highly relevant in evaluating the creation of a hostile
work environment,” regardless of the identity of the person
to whom the comments were directed. Id. The fact that
racially charged words were not only directed at the
Plaintiff and Mexican-American people but were also
consistently directed at members of various other
racial-minority groups makes the conduct in this case more
outrageous, not less so. See id. “No single act can more
quickly alter the conditions of employment and create an
abusive working environment than the use of an
unambiguously racial epithet such as `nigger’ by a
supervisor in the presence of his subordinates.” Id. at
1116 (internal citation and quotations omitted). The
Plaintiff’s direct supervisor not only repeatedly used that
particularly offensive term, but also frequently used
racial epithets that are equally offensive to people of
Hispanic, Mexican, or Mexican-American heritage. The
existence and the severity of discrimination is determined
from the perspective of a reasonable person of the
plaintiff’s race. Id. This Court finds that a reasonable
jury could find that the constant barrage of racial
epithets like the ones allegedly made in this case could be
seen by a Mexican-American person as conveying the message
that anyone who is not Caucasian is disfavored and is not a
full-and-equal member of the workplace.

There is no question that the Plaintiff has succeeded in
alleging a pattern of ongoing and persistent racial-based
conduct in his workplace. Although many derogatory comments
were made about other racial groups, the Plaintiff
testified that he was, on a daily basis, subjected to
offensive racial slurs about Mexican Americans in general.
He testified that many of the offensive comments were
directed at him personally. Some of the conduct Page 11
alleged could even be interpreted as threatening in nature,
such as the repeated statement to the Plaintiff that “A
good Mexican is a dead Mexican,” as well as the supervisor
physically bumping the Plaintiff’s shoulder while making
offensive remarks.

The Court can hardly envision a situation where the acts
alleged could be more severe or pervasive. The alleged
conduct in this case took place three or more times daily
over a period of six or seven months. This is not a case of
“simple teasing or offhand remarks.” The alleged remarks
and conduct not only occurred frequently but were of a
highly offensive nature. The Plaintiff in this case was
surrounded by racial hostility, at his workplace, that was
created by his direct supervisor.

It is clear from the Plaintiff’s deposition testimony that
the conduct alleged was unwelcome and that the Plaintiff
perceived the work environment to be hostile and abusive.
Therefore, the Court finds that the Plaintiff has met his
burden of establishing that the work environment was
subjectively offensive. Given the highly inflammatory
nature of the racial comments, and the frequency in which
they occurred, the Court also finds that the Plaintiff has
succeeded in establishing a question of fact as to whether
the work environment was objectively offensive.

The Defendants argue that even assuming the existence of a
hostile work environment, the Defendants are still not
liable because by resigning, the Plaintiff unreasonably
failed to give the Defendants the opportunity to take any
preventative or corrective measures. However, the Plaintiff
testified at his deposition that not only were Mr. Secia’s
supervisors present during some of the allegedly
discriminatory incidents, the Plaintiff complained directly
to the supervisors about Mr. Secia’s conduct. The Plaintiff
testified that he was given a raise but that the Defendants
did nothing to address the actual discriminatory conduct.
The Plaintiff testified that after he reported Mr. Secia,
the discriminatory conduct continued for another 4 to 5
months before the Plaintiff resigned. Thus, the Court finds
that the Plaintiff has succeeded in raising a question of
fact as to whether the Defendants, after the Plaintiff
reported the discriminatory conduct, failed to take
appropriate remedial action. Page 12

Accordingly, the Defendants’ Motion for Summary Judgment
is denied with respect to the hostile-work-environment
claim.

C. Constructive Discharge

Like a hostile-work-environment claim, a claim for
constructive discharge usually results from a series of
allegedly discriminatory actions on the part of the
employer. Draper v. Couer Rochester, Inc., 147 F.3d 1104,
1110 (9th Cir. 1998). For an atmosphere of hostility to be
actionable, the offending behavior must be sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.
Meritor, at 67, 106 S.Ct. at 2399. However, a
hostile-environment/constructive-discharge claim entails
slightly more. Pa. State Police v. Suders, 542 U.S. 129,
146-47, 124 S.Ct. 2342, 2354 (2004).

A plaintiff who advances a
hostile-work-environment/constructive-discharge claim must
show working conditions that are so intolerable that a
reasonable person would have felt compelled to resign. Id.
Thus, a constructive discharge occurs when a person quits
his or her job under circumstances in which a reasonable
person would feel that the conditions of employment have
become intolerable. Draper, 147 F.3d at 1110; MacLean v.
State Dept. of Educ., 195 Ariz. 235, 245, 986 P.2d 903, 912
(Ct.App. 1999). This test establishes an objective
standard. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361
(9th Cir. 1987). The plaintiff need not show that the
employer subjectively intended to force the employee to
resign. Id. Harassment so intolerable as to cause a
resignation may be effected through co-worker conduct,
unofficial supervisory conduct, or official company acts.
Pa. State Police. at 148, 124 S.Ct. at 2355.

The Defendants argue that even assuming the Plaintiff can
show the existence of a hostile work environment, he cannot
show that the hostile work environment was so abusive that
a reasonable person would have felt compelled to resign.
The Defendants point out that the Plaintiff has not
provided any evidence that the Defendants were attempting
to “get rid of” the Plaintiff. Is support of their
argument, they point to the undisputed fact that the Page
13 Plaintiff was given a raise. The Defendants also allege
that they “could” have fired the Defendant due to disputed
allegations of fraud against a customer, but didn’t.

What is relevant to the Plaintiff’s claim is not the
Defendants subjective intent, but rather whether the
Plaintiff resigned under circumstances in which a
reasonable person would feel that the conditions of
employment had become intolerable. Draper, 147 F.3d at
1110; MacLean, 195 Ariz. at 245, 986 P.2d at 912.
Regardless of whether the Defendants did not subjectively
intend to force the Plaintiff to resign, the Plaintiff can
set forth a claim of constructive discharge if his working
conditions were so intolerable that a reasonable person
would have been compelled to resign. See Watson, 823 F.2d
at 361.

The Court will not revisit the facts as it feels that they
were amply discussed with respect to the Plaintiff’s
hostile-work-environment claim. Suffice it to say that the
Plaintiff has alleged numerous incidences of offensive,
harassing, and discriminatory treatment within his
workplace. The determination as to whether these same
conditions were so intolerable and discriminatory as to
justify a reasonable employee’s decision to resign is a
factual question that is normally left to the trier of
fact. Pa. State Police. at 148, 124 S.Ct. at 2355; MacLean,
195 Ariz. at 245, 986 P.2d at 912. Although there are some
instances where the discrimination alleged is insufficient
as a matter of law to support a finding of constructive
discharge, this is not such a case. See Thoman v. Douglas,
877 F.2d 1428, 1434 (9th Cir. 1989) (discussing the similar
standards articulated by the 9th Circuit and Arizona courts
concerning constructive discharge).

The Plaintiff in this case has alleged a continuous pattern
of discriminatory treatment that continued, in the presence
of supervisors, after the Plaintiff complained about the
conduct. The conduct allegedly occurred on a daily basis,
and was highly offensive in nature. The Plaintiff has
presented evidence of a “`worse case’ harassment scenario,
harassment ratcheted up to the breaking point.” See, e.g.,
Pa. State Police, at 147, 124 S.Ct.at 2355. This is the
very type of conduct that, if proven, can support a
constructive discharge claim. The Court finds that a
rational trier of fact could conclude, from the evidence
presented, that the Plaintiff’s working conditions had
become so hostile and Page 14 intolerable that a
reasonable person in the Plaintiff’s situation would have
been compelled to quit. Therefore, the Plaintiff has
succeeded in raising a genuine issue of fact for trial. See
Watson, 823 F.2d at 361; Thomas, 877 F.2d at 1434.

At oral argument on June 19, 2006, the Defendants argued
that even assuming the Plaintiff’s work conditions were so
hostile and intolerable that a reasonable person would have
been compelled to quit, the Plaintiff cannot assert a claim
for constructive discharge because he did not in fact quit
because of his work environment. In support of their
argument, they point to the Plaintiff’s resignation letter.
The letter does not mention Mr. Secia’s conduct and does
not state that the Plaintiff is resigning because of his
working conditions.

The Court agrees that the Plaintiff’s constructive
discharge claim cannot succeed if the Plaintiff in fact
quit for other some reason unrelated to the conditions of
his employment and the alleged conduct in this case. See,
e.g., Pa. State Police, at 148, 124 S.Ct. at 2355 (a
constructive discharge involves both an employee’s decision
to leave and the precipitating conduct). However, the
Plaintiff was asked at his deposition why he quit, and
testified that the reason he quit was because Mr. Secia’s
conduct continued after he complained and the supervisors
did not do anything about it. The Plaintiff also testified
about why he did not include this information in his
resignation letter. Thus, the Plaintiff has succeeded in
raising a question of fact regarding the reason for his
resignation that precludes the entry of summary judgment.

D. Vicarious Liability

The Defendants argue that JDR cannot be held vicariously
liable for a supervisor’s remarks. Two Supreme Court cases
set forth the test for determining when an employer is
vicariously liable for a hostile work environment created
by a supervisor. In Burlington Indus. v. Ellerth, 524 U.S.
742, 118 S.Ct. 2257 (1998), and Faragher v. Boca Raton, 542
U.S. 775, 118 S.Ct. 2275 (1998), the Supreme Court held
that an employer is subject to vicarious liability for
hostile work environment created by a supervisor with
immediate or successively higher authority over the
employee. To prevent this rule from imposing Page 15
automatic liability and to encourage employers to adopt
anti-harassment policies, the Court provided employers with
an affirmative defense (the “Ellerth/Faragher” defense)
that they could assert to avoid vicarious liability for
supervisor misconduct. Burrell v. Star Nursery, 170 F.3d
951, 955 (9th Cir. 1999).

The Ellerth/Faragher defense is comprised of two necessary
elements: (1) the employer exercised reasonable care to
prevent and promptly correct any harassing behavior; and
(2) the plaintiff/employee unreasonably failed to take
advantage of any preventative or corrective opportunities
provided by the employer. Id. (quotations omitted). The
party asserting the defense bears the burden to allege and
prove that the employee failed in that regard. Pa. State
Police, at 152, 124 S.Ct. at 2357.

The Ellerth/Faragher defense focuses on whether the
harasser has immediate or successively-higher authority
over the victim of the harassment, rather then whether the
employer knew about the harassment. Burrell, 170 F.3d at
955. Thus, if the harassment is actionable, and the
harasser has supervisory authority over the victim, the
court presumes that the employer is vicariously liable for
the harassment. Id. This presumption may be overcome only
if the alleged harassment has not culminated in a tangible
employment action, and then only if the employer can prove
both elements of the affirmative defense. Id.

The law is no different with respect to the Plaintiff’s
claim of constructive discharge. Title VII also encompasses
employer liability for a constructive discharge resulting
from a hostile work environment. Pa. State Police, at
142-43, 124 S.Ct. at 2352. In constructive-discharge cases,
the plaintiff who fails to allege a tangible employment
action has the duty to mitigate harm. Id. at 152, 124 S.Ct.
at 2357. However, the employer still bears the burden to
allege and prove that the plaintiff failed in that regard.
Id.

The Court finds that the Defendants are not entitled to
summary judgment based on the Ellerth/Faragher affirmative
defense. The Court has already determined that this case,
in its current posture, presents genuine issues of material
fact concerning the Plaintiff’s hostile-work-environment
and constructive-discharge claims. Additionally, the
Plaintiff has presented evidence that the hostile work
environment was created by Craig Secia. There Page 16 does
not appear to be any dispute that Mr. Secia had authority,
supervisory or successively higher, over his employees. The
Plaintiff has presented evidence that raises a question of
fact as to whether he was constructively discharged, which
would constitute an adverse employment action. Pa. State
Police, at 140, 124 S.Ct. at 2350 (holding that a
constructive discharge precipitated by a supervisor’s
official act can constitute a “tangible employment
action”). Assuming the Plaintiff can prove the existence of
a constructive discharge, the Ellerth/Faragher defense is
not available to the Defendants. See, e.g., Ellerth, at
765, 118 S.Ct. at 2270 (employer may not raise the defense
to liability if the harassment culminates in a tangible
employment action such as an employee’s discharge),
Faragher, at 807-08, 118 S.Ct. at 2293 (same).

Additionally, even assuming that the Ellerth/Faragher
defense was available to the Defendants, summary judgment
would not be proper because the Plaintiff has succeeded in
raising a question of fact as to whether the Defendants
exercised reasonable care to prevent or promptly correct
the offending behavior.

E. Retaliation

In order to establish a prima facie case of retaliation,
the Plaintiff must show that: (1) he was engaged in
protected activity; (2) he suffered an adverse employment
decision; and (3) there was a causal link between the
protected activity and the adverse employment decision.
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.
2000); Garner v. Motorola, 95 F.Supp.2d 1069, 1076 (D.
Ariz. 2000).

The Defendants argue that the Plaintiff cannot show that
the Defendants took any adverse employment action which was
linked to a protected activity. The Defendants suggest that
the only adverse employment action alleged in this case is
the constructive discharge. The Defendants contend that
the Plaintiff’s Complaint only alleges that he quit because
of the hostile work environment, not that he quit because
of some action that was taken against him in retaliation
for reporting Mr. Secia’s conduct. Therefore, the
Defendants argue, the Plaintiff has failed to allege a
causal connection between the adverse employment Page 17
action (the constructive discharge) and the protected
activity (reporting the discriminatory conduct to Mr.
Secia’s supervisors).

The Plaintiff’s response does not address his retaliation
claim at all. At Oral Argument on June 19, 2006, the
Plaintiff conceded that he did not respond to or contest
the Defendants’ Motion for Summary Judgment as it applies
to the claim of retaliation.

As noted previously, as the party opposing summary
judgment, the Plaintiff cannot merely rely on the
allegations in his Complaint. He must produce some
significant probative evidence tending to contradict the
Defendants’ allegations and thereby creating a material
question of fact. See, e.g., Anderson, at 256-57, 106 S.Ct.
at 2513-14 (holding that the plaintiff must present
affirmative evidence in order to defeat a properly
supported motion for summary judgment). Accordingly, the
Defendants’ Motion for Summary Judgment is granted with
respect to the Plaintiff’s claim of retaliation. Page 18
Consistent with the above opinion,

IT IS ORDERED GRANTING IN PART AND DENYING IN PART the
Defendants’ Motion for Summary Judgment (doc. 19).

[fn1] The Plaintiff also conceded that Big O is an
incorrect party.

[fn2] The elements of a hostile-work-environment claim are
the same under Title VII and section 1981. See, e.g.,
Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003).

[fn3] It is undisputed that the Plaintiff, who is Mexican
American, is a member of a protected class.

[fn4] The Plaintiff defined Eastern to include those
individuals that appeared to be “Arab” or “Chinese.” Page
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