Opinion
No. 06-CV-1357-PHX-RCB.
September 28, 2007
ORDER
Currently pending before the court is a motion for summary judgment brought pursuant to Fed.R.Civ.P. 56 by the defendant Safeway, Inc. (doc. 15). For the reasons set forth below, the court grants defendant's motion for summary judgment.
Safeway was improperly named as "Safeway Food Drug, Inc." in the summons and complaint.
Background
On approximately November 11, 2002, plaintiff was hired as a part-time Food Clerk. Def. SOF (doc. 16) at ¶ 1 (citations omitted). Plaintiff retained that part-time status throughout his tenure with Safeway in that he never worked the number of hours which the governing collective bargaining agreements required to attain full-time status. Id., exh. I thereto (Decl'n of Denise Diamond (Jan. 26, 2007)) at 2, ¶¶ 4-8.
In any event, part of plaintiff's training and orientation included, in his words, a "large section on the sexual-harassment [sic] issue." Id. at 1, ¶ 2 (citing exh. A (Pl. Dep.) thereto at 38). In addition, during his orientation plaintiff received a copy of Safeway's "Employee Handbook/Store Policies" ("the Handbook" or "the Employee Handbook") which contained its sexual harassment policy. Id. at 2, ¶ 5 (citing exh. A thereto at 40; and exh. C thereto). As succinctly summarized in the "Policy/Rules/Employee Handbook Signoff Sheet," which plaintiff signed, that policy is: "Sexual harassment is wrong and will not be tolerated in any form at Safeway." Id., exh. C thereto.
In its Employee Handbook, Safeway outlined its "Policy on Harassment[,]" and provided representative definitions of what "may" constitute "[u]nlawful sexual harassment[.]" Doc. 16, exh. D thereto at 18. The Handbook further set forth the procedures an employee should follow if he or she "experienced . . . harassment[,]" which included "immediate[]" reporting to any one of several listed "Safeway representatives[.]" Id. at 19. Another section of that Handbook set forth "what Safeway w[ould] do with [a] report" of sexual harassment. Id. The procedure began with "Safeway . . . promptly conduct[ing] a complete investigation of [the employee's] report." Id. Safeway's Handbook is explicit: It "will not tolerate any acts of retaliation against [an employee] for making a report of harassment." Id. In fact, the Handbook goes on to state that if an employee "feel[s] that someone is retaliating against [them] for making a report," the employee is instructed to inform one of the listed Safeway representatives "so that Safeway can investigate [the employee's] concern and take appropriate corrective action." Id.
Plaintiff testified during his deposition that a statement of Safeway's "Policy on Harassment" was posted in the break room.Id., exh. A thereto at 53. That Policy was more detailed than the one in the Handbook in that it actually listed six "Human Resource Advisor[s]" by name and provided their telephone numbers. Id., exh. F thereto. The posted Policy also identified the "SVP, Corporate Human Resources" person by name and provided his telephone number. Id.
According to plaintiff, he was sexually harassed on two separate occasions by co-worker Roger Finn, a Courtesy Clerk. Plaintiff testified during his deposition that he "understood and knew of [Mr. Finn's] mental handicaps." Id., exh. A thereto at 54. More specifically, plaintiff testified that it was his "underst[anding]" that Mr. Finn was "mentally retarded." Id. Despite that, up until the time of the first incident plaintiff and Mr. Finn had an amicable working relationship.
Prior to the first incident plaintiff testified that he "had no problems with" Mr. Finn. Id. at 54 and 55. In fact, plaintiff thought that Mr. Finn "seemed like a nice enough guy." Id. at 54. He further described Mr. Finn as "friendly, [but] a little withdrawn." Id. "The entire time up until" the first incident plaintiff "talked to" Mr. Finn, and "[j]oked around with him." Id. at 89. The two of them would watch television together in the break room; and "[c]hat about whatever." Id. When recounting his relationship with Mr. Finn, plaintiff repeated that he "never had a problem or incident with" Mr. Finn before the incidents of which he is complaining in this lawsuit. Id.
The first incident occurred on February 3, 2005, when plaintiff had just finished his shift. Id. at 55. Mr. Finn was in the break room as plaintiff was "punching out." Id. They had been joking around, and as plaintiff left to go to the parking lot, Mr. Finn followed him, continuing to talk as they walked. Id. at 56; see also id., exh. G thereto (Pl. "Statement of Incident"). Plaintiff assumed that Mr. Finn was going to the parking lot to "collect the carts." Id. at 56. When plaintiff got to his car, he "opened the door and got in." Id., exh. G thereto; see also id. exh. A thereto at 56. As plaintiff indicated in his "Statement of Incident[,]" written five days after the event, Mr. Finn then "leaned into [plaintiff's] car and asked[,] `what was wrong with [plaintiff's] steering wheel'[.]" Id. Evidently this remark was precipitated by the fact that plaintiff's steering wheel "is brittle and flaking off from heat wear." Id.
In his Statement, plaintiff further wrote that "[Mr. Finn] took his finger and touched the worn area on [the] wheel[,] then removed his finger and, pretending to wipe it off[,] put his finger on [plaintiff's] left inner thigh and slid it up." Id. When specifically asked "how far up [his] thigh" Mr. Finn touched him, plaintiff answered: "Not very. If he got a quarter-inch it is a miracle because my hand was right there." Id., exh. A thereto at 57. As to the length of time Mr. Finn's finger was on plaintiff's thigh, plaintiff readily admitted that it was "not even" two seconds. Id. at 58. When directly asked if it was for "one second," plaintiff replied, "I can't give you an actual determination of time. It was almost immediately from the time his finger touched my leg and started moving upwards I had his hand and threw it off of me." Id. In response, plaintiff "grabbed [Mr. Finn's] hand, removed it away and told him to get away[.]"Id., exh. G thereto. Mr. Finn "backed off immediately[,]" and plaintiff drove off. Id., exh. A thereto at 57; and exh. G thereto.
The next day, February 4, 2005, "at the very first opportunity" he had, plaintiff told Jonathan Gray, the acting store manager, about this incident. Id. at 60; and 59. This was in response to Mr. Gray's casual inquiry asking plaintiff how he was. Id. at 60. Plaintiff told Mr. Gray that he needed to talk to him "for a minute." Id. The two then had "a very brief conversation" with plaintiff quietly telling Mr. Gray what had transpired in the parking lot with Mr. Finn. Id. Plaintiff's impression was that Mr. Gray "was quite shocked[.]" Id. Mr. Gray assured plaintiff that he would "talk" with Mr. Finn and that he would "get it taken care of." Id.
The second incident occurred the next time plaintiff and Mr. Finn worked together — five days later on February 8, 2005. At Mr. Gray's request, plaintiff wrote a "Statement of Incident" within less than an hour after this incident occurred. See id., exh. H thereto. As plaintiff recounts this incident in his Statement, while he was "standing at [a] checkstand in the bagging area[,]" plaintiff "felt, from behind," a "tugg[ing] on his "left shirt sleeve . . . and a brushing against [his] tricep area." Id.; see also id., exh. A thereto at 62. This was a "split second incident[,]" id., exh. A thereto, lasting for "[r]oughly[] . . . one or two seconds." Id., exh. A thereto at 63. During his deposition, plaintiff speculated that perhaps "it was kind of [Mr. Finn's] way of telling [plaintiff], hey, I am here to bag the groceries and I will takeover [sic] for you[.]"Id., exh. A thereto at 63. In any event, plaintiff "immediately told [Mr. Finn] to get away from [him] and to never touch [him] again." Id. at 62.
Immediately after writing that Statement, plaintiff wrote another "Statement of Incident[,]" pertaining to the first incident on February 3, 2005. Doc. 16, exh. G thereto.
From there, plaintiff "went directly to the manager's office" and had Mr. Gray paged. Id., exh. H thereto. He also asked a co-worker to come into the office with him to be a witness. Id.; and exh. A thereto at 64. By his own admission, plaintiff "unleashed a two-minute verbal tirade on [Mr. Gray] that was nasty[,]" including the frequent use of expletives. Id., exh. A thereto at 51. During that tirade plaintiff described what had just happened with Mr. Finn and then "asked if [Mr. Finn] had been talked to about the first incident." Id. Mr. Gray said the he had not yet talked with Mr. Finn, implying that it was because "[n]either he nor [Mr. Finn] had worked together" since the first incident. Id., exh. H thereto. A "heated" discussion ensued about "all aspects of th[e] situation and [plaintiff] left the office — unsatisfied and upset." Id.
As plaintiff recalls it, "within 30 minutes after the second incident occurred[,]" Bob Blaylock, a Safeway Human Resources employee, came to the store and met with plaintiff for "[p]robably 10, 15 minutes[.]" Id., exh. A thereto at 45; and 66. Plaintiff was advised that an investigation would be done and they would "be back in touch with" him. Id. at 66.
A few days later, on February 11, 2005, a Human Resource Advisor and Mr. Blaylock again met with plaintiff informing him "that they did not find any evidence to support [his] claim[]" of sexual harassment against Mr. Finn. Id. at 46; and 81. As part of that investigation Safeway "had talked to some people at the Boys and Girls club where [Mr. Finn]," plaintiff "assume[d][,]" worked as a "counselor." Id. Safeway was advised that Mr. Finn had "an exemplary record" there. Id.; and at 48. At that point, plaintiff was further advised that Safeway was "dropping the investigation[,]" and that "any punishment that [Mr. Finn] got was already served[]" when he was sent home after the initial interview following the second incident. Id. at 46-48. Plaintiff also was informed that he and Mr. Finn would not be scheduled to work together any more. Id. at 82. Plaintiff indicated that he was "very dissatisfied" with Safeway's response. Id. Plaintiff testified that he felt "almost as if they didn't believe [his] story." Id.
Following the second incident, according to Human Resources Advisor Denise Diamond, a "Corrective Action Report" was taken with respect to Mr. Finn. Doc. 16, exh. I thereto at 2, ¶ 26. Mr. Finn received a "verbal warning" and a three day suspension, the "duration of [the] investigation[.]" Id., exh. J thereto ("Corrective Action Report"). Under the section of that Report entitled "corrective action required[,]" it states that Mr. Finn "will refrain from touching any employee or customer in an unproffessional [sic] manner." Id. As of January 26, 2007, Mr. Finn was still employed with Safeway and no alleged harassment complaints have been lodged against him since the February, 2005 incidents which are the subject of this lawsuit. Id., exh. I thereto at 3, ¶ 11.
Plaintiff no longer is employed by Safeway, however. He was terminated in October, 2005 after "admitt[ing] to stealing approximately $4,4000 in cash during the course of his employment." Id., exh. N thereto ("Employee Investigation" report); and exh. I thereto at 2-3, ¶ 9. Plaintiff executed a promissory note agreeing to repay Safeway $4,400.00 for that stolen cash. Id., exh. I thereto at 3, ¶ 10; and exh. N thereto (copy of promissory note).
On August 31, 2005, plaintiff filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission ("EEOC"). Doc. 1, exh. C thereto. In that Charge, he claimed to have been "sexually harassed by a co-worker, Roger Finn." Id. Plaintiff further alleged that he had been discriminated against "because of [his] sex, male, and in retaliation for protesting practices made unlawful by Title VII[.]" Id. That alleged retaliation was in the form of his supposedly being "demoted from Full-time to Part-time status." Id.
On January 31, 2006, the EEOC issued a "Dismissal and Notice of Rights[.]" Id., exh. D thereto. The EEOC informed plaintiff that "[b]ased upon its investigation," it was "unable to conclude that the information obtained establishe[d] violations of any statutes." Id. Following the receipt of that Notice, on May 1, 2006, plaintiff timely filed this action in Superior Court of Arizona, Maricopa County. Id., exh. A thereto. Safeway subsequently properly removed the case to this district court.
Discussion
I. Non-compliance with LRCiv 7.2
At the outset the court is compelled to comment upon plaintiff's response or, more accurately, his lack of response to the present motion. Significantly plaintiff did not file a responsive memorandum in accordance with LRCiv 7.2(c), and the time to file and serve such a response has passed. See LRCiv 7.2(c); and App. A ("Time Chart"). Nor did plaintiff file a statement of facts as LRCiv 56.1(b) requires. Instead, he filed a document entitled "Plaintiff's Answer to Defendants [sic] Motion for Summary Judgment[,]" specifically "request[ing] oral argument[.]" Doc. 18 at 1.
Finding this case suitable for disposition without oral argument, the court denies this request.
Local Rule of Civil Procedure 7.2(I), provides in relevant part that "if the unrepresented party . . . does not serve and file the required answering memoranda, . . ., such non-compliance may be deemed a consent to the . . . granting of the motion and the court may dispose of the motion summarily." LRCIv 7.2(I) (emphasis added). Invoking that Rule, defendant filed a motion "request[ing] that the Court exercise its discretion" thereunder and grant its motion. Def. Mot. (doc. 19) at 2. The court declines to summarily grant defendant's summary judgment motion based upon plaintiff's non-compliance with Local Rule 7.2(I). SeeHenry v. Gill Indus., 983 F.2d 943, 950 (9th Cir. 1993) ("The language of the [predecessor to LRCiv 7.2(I)] is permissive, conferring discretion upon the district judge to determine whether non-compliance should be deemed consent to a given motion.").
Summarily granting defendant summary judgment would amount to an abuse of discretion given the Ninth Circuit's well-settled view "that a nonmoving party's failure to comply with local rules does not excuse the moving party's affirmative duty under Rule 56 to demonstrate its entitlement to judgment as a matter of law."See Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (citing Fed.R.Civ.P. 56); see also Henry, 983 F.2d at 949-50; and Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 n. 1 (9th Cir. 1976). Failing to ensure that the moving party has met its burden on a summary judgment motion "turn[s] the summary judgment rule into a mere sanction for noncompliance with local rules[]" — a result the Ninth Circuit does not condone. See id. Thus, despite the Local Rule that permits summarily granting motions for non-compliance, heeding the mandate of Martinez, this court will analyze defendant's motion for summary judgment on the merits. At the same time though, as discussed below, the court is unwilling to completely overlook plaintiff's non-compliance with the Federal and Local Rules of Civil Procedure.
II. Summary Judgment Standard
Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "The criteria of `genuineness' and `materiality' are distinct requirements." Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). "The requirement that an issue be `genuine' relates to the quantum of evidence the plaintiff must produce to defeat the defendant's motion for summary judgment."Id. "There must be sufficient evidence `that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quotingAnderson, 477 U.S. at 248). "As to materiality, the substantive law will identify which facts are material." Anderson, 477 U.S. at 248.
"Once the moving party meets its initial burden, . . ., the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks and citations omitted). This "[e]vidence must be concrete and cannot rely on `mere speculation, conjecture, or fantasy.'"Bates v. Clark County, 2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) (quoting O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986)). Similarly, "a mere `scintilla' of evidence" is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some `significant probative evidence tending to support the complaint.'" Fazio v. City County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Nor is it sufficient for the nonmoving party to merely rely on the pleadings. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
By the same token though, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inference in his favor."Horphag, 475 F.3d at 1035 (citation omitted). The court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The fact that a plaintiff is appearing pro se, such as Mr. Proctor, does not alter the applicability of these general summary judgment rules. See Semper v. JBC Legal Group, 2005 WL 2172377, at *1 (W.D.Wash. 2005) ("Although the rule requires that the allegations of a pro se complaint be liberally construed in determining whether a viable claim has been asserted and that strict compliance with procedural/technical rules will not be expected of pro se litigants, it does not alter the summary judgment standard or otherwise give pro se non-prisoner litigants multiple opportunities to present their evidence.") The summary judgment rules apply with equal force to pro se litigants because they "must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987);see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citation omitted) ("Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.") In fact, in Jacobsen v. Filler, 790 F.2d 1362 (9th Cir. 1986), the Court rejected the argument that pro se non-prisoner litigants are entitled to notice from the court regarding the requirements of Rule 56. In so doing, the Court unequivocally stated that "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Id. at 1364. Accordingly, although Mr. Proctor is appearing pro se, the court will hold him to the same standards as it would any other non-moving party on a motion for summary judgment.
II. Title VII
Plaintiff is alleging two separate violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). First, he is alleging that he was sexually harassed during the course of his employment at Safeway. Doc. 1, exhs. A (Co.) and C (EEOC Charge) thereto. Second, he alleges that Safeway retaliated against him for complaining of that sexual harassment. Allegedly that retaliation took the form of "demot[ing] [plaintiff] from full time to part time status[.]" Id., exh. A thereto at 1; see also exh. C thereto. The court will address each of these claims in turn.
A. Hostile Work Environment
"Title VII . . . forbids an employer `to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.'" Craig v. M O Agencies, Inc., 2007 WL 2264635, at *8 (9th Cir. Aug. 9, 2007) (quoting 42 U.S.C. § 2000e-2(a)(1)) (emphasis added). "Title VII's prohibition `is not limited to `economic' or `tangible' discrimination[.]'" Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1987)). Thus, "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, . . ." the Supreme Court has held that "Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted). "To make a prima facie case of a hostile work environment, a person must show that: (1) []he was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Craig, 2007 WL 2264635, at *5 (internal quotation marks and citation omitted). Based upon the plain language of Title VII, "[t]he plaintiff also must prove that `any harassment took place because of sex.'" Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th Cir. 2005) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)) (other citation omitted).
Safeway contends that there are two obstacles to plaintiff's hostile work environment claim. The first is plaintiff's inability to show that the alleged sexual harassment was based upon his gender, i.e. that it was "because of sex." In particular, Safeway argues that "there was no indication whatsoever that Mr. Finn touched Plaintiff because of Plaintiff's gender." Mot. (doc. 15) at 8. Second, Safeway asserts that "[p]laintiff's evidence does not come close to satisfy[ing] the demanding standards for severity and pervasiveness" necessary to support a hostile work environment claim. Id. at 9. Given the plaintiff's lack of a response to this motion, the court will limit its analysis to these two relatively narrow bases for summary judgment. When it does that, the court is easily convinced that Safeway is entitled to summary judgment as to plaintiff's Title VII hostile work environment claim.
1. "Because of Sex"
"Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII[.]" Onacle, 523 U.S. at 82. Thus, the fact that plaintiff and his alleged harasser, Mr. Finn, are both male, does not render Title VII inapplicable here. Nonetheless, plaintiff cannot survive Safeway's motion for summary judgment on his hostile work environment claim because, as discussed below, he has not met his burden with respect to the "because of sex" element of such a claim.
As noted at the outset, a plaintiff alleging a hostile work environment must prove that "any harassment took place because of sex." Dominguez-Curry, 424 F.3d at 1034. That does not mean, however, that a plaintiff must prove that the harassing conduct was "motivated by sexual desire to support an inference of discrimination on the basis of sex." Oncale, 523 U.S. at 80. Rather, the Supreme Court in Onacle outlined three "evidentiary route[s]" whereby a Title VII plaintiff can show an inference of discrimination because of sex. The first, where such an inference is "easy to draw," is in a male-female sexual harassment situation where "the challenged conduct . . . involves explicit or implicit proposals of sexual activity[.]" Id. at 80. This "same chain of inference [is] available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual." Id. Another way in which a plaintiff who is claiming same-sex harassment may show an inference of discrimination is if he was "harassed in such sex-specific and derogatory terms by another []man as to make it clear that the harasser [wa]s motivated by general hostility to the presence of []men in the workplace." Id. "A same-sex harassment plaintiff may also, . . ., offer direct com-parative [sic] evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Id. at 80-81. The Supreme Court was emphatic in Oncale though, "[w]hatever evidentiary route the plaintiff chooses to follow, he . . . must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 1 discrimina[tion] . . . because of . . . sex.'" Id. at 80 (emphasis added by Oncale Court).
Viewing the record in the light most favorable to plaintiff, as it must, the court cannot find that either of the incidents of which he is complaining "actually constituted discrimination because of sex." See id. The record does not support an inference of same-sex discrimination under any of the evidentiary theories enumerated in Oncale, There is no evidence that the challenged conduct "involve[d] explicit or implicit proposals of sexual activity[.]" See id. Nor is there any evidence that Mr. Finn was homosexual. Likewise, the manner in which plaintiff was allegedly harassed, the momentarily placement of a finger on his thigh and brushing against his tricep area for a "split-second," was not "in such sex-specific and derogatory terms as to make it clear that [Mr. Finn] [wa]s motivated by general hostility to []men in the workplace." See id. Finally, there is not any "direct comparative evidence" in the record as to how Mr. Finn treated members of both sexes in [that] mixed-sex workplace." See id. at 80-81.
Moreover, Mr. Finn's "put[ting] his finger on [plaintiff's] inner thigh and . . . rubbing up towards [plaintiff's] privates[,]" perhaps "a quarter inch[,]" doc. 16, exh. A thereto at 56 and 57, was at most conduct "merely tinged with offensive sexual connotations[.]" See Oncale, 523 U.S. at 81. As the Supreme Court made clear in Oncale, however, conduct of that type does not support an inference of discrimination "because of sex."
The second incident, where Mr. Finn allegedly tugged on plaintiff's shirt sleeve and brushed against plaintiff's tricep area was again, at the very most, conduct "merely tinged with offensive sexual connotations[.]" See id. As the foregoing shows, there is a complete lack of any probative evidence, let alone "significant probative evidence[,] tending to support" an inference of discrimination because of gender here. See Anderson, 477 U.S. at 252 (emphasis added). Thus, because plaintiff has not made a "showing sufficient to establish the existence of an essential element" of his hostile work environment claim, an element "on which he will bear the burden of proof at trial[,]" summary judgment is proper. See Celotex, 477 U.S. at 322.
. . .2. "Severe or Pervasive" Conduct
Assuming for the sake of argument that plaintiff had raised a genuine issue of material fact as to whether Mr. Finn's actions constituted discrimination "because of sex" (which he did not), still, Safeway would be entitled to summary judgment as to this hostile work environment claim. Summary judgment is proper because plaintiff likewise has not met his burden of showing a genuine issue of material fact as to the third element of such a claim.
To satisfy the third element of a hostile work environment claim, a plaintiff "must show that h[is] work environment was both subjectively and objectively hostile." Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 1995); see also Harris, 510 U.S. at 20-21. "Objective hostility is determined by examining the totality of the circumstances and whether a reasonable person with the same characteristics as the victim would perceive the workplace as hostile." Craig, 2007 WL 2264635, at *8 (citingHarris, 510 U.S. at 20-21). The totality of the circumstances inquiry "includ[es] the frequency, severity, and nature ( i.e., physically threatening or humiliating as opposed to merely verbally offensive) of the conduct." Galdamez, 415 F.3d at 1023 (citation omitted). "The required severity of the conduct varies inversely with its pervasiveness and frequency." Id. Significantly, "[t]he Supreme Court has cautioned that `simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Craig, 2007 WL 2264635, at *5 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). In other words, "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Oncale, 523 U.S. at 81 (citing Harris, 510 U.S. at 21).
Considering the evidence in the light most favorable to plaintiff, clearly he has not raised a genuine issue of material fact as to whether the two incidents with Mr. Finn were so severe or pervasive as to "create an objectively hostile or abusive work environment[.]" See id. The two incidents were of extremely short duration, and obviously infrequent. The first, as plaintiff readily conceded, lasted "not even" two seconds. Doc. 16, exh. A thereto at 58. And the second incident plaintiff himself described as a "split-second incident." Id. at 63. Further, even plaintiff realized that the second, sleeve tugging incident, may simply have been Mr. Finn's way (as a developmentally disabled person), of letting plaintiff know that Mr. Finn was available to assist with bagging groceries. Id.
Employing the totality of the circumstances test adopted by the Supreme Court in Harris, this case falls into the category where "it is clear from the facts that the offensive behavior alleged is legally insufficient to rise to the level of sexual harassment." See Cleese v. Hewlett-Packard Co., 911 F.Supp. 1312, 1320 (D. Or. 1995) (citing Candelore v. Clark County, Sanitation Dist. 975 F.2d 588, 590 (9th Cir. 1992) ( per curiam) (internal quotation marks and citation omitted) ("isolated incidents of sexual horseplay alleged by [plaintiff] took place over a period of years and were not so egregious as to render [her] work environment hostile[]")). In fact, the conduct alleged herein is far less egregious than other reported cases where courts likewise have found that the alleged harassment was not severe enough to support a hostile work environment claim. See,e.g., Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (single incident where co-worker touched plaintiff's stomach and breast under her sweater, although "highly offensive[,]" did not rise to the level of a hostile work environment) (and cases cited therein). Simply put, this record does not raise a genuine issue of material fact as to the "crucial" requirement of a hostile work environment claim — conduct so severe or pervasive as to "create . . . an environment that a reasonable person would find hostile or abusive[.]" See Oncale, 523 U.S. at 1003 (internal quotation marks and citations omitted). Hence, the fact that Mr. Finn's conduct was not sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment, provides another basis for granting Safeway's motion for summary judgment on this particular Title VII claim. B. Retaliation
Because the court has found that the alleged harassment was not sufficiently "severe and pervasive[,]" it need not address the issue of whether Safeway failed to take adequate remedial measures. See Millwood v. Torrez, 1999 WL 144876, at *5, n. 2 (N.D.Cal. 1999).
Title VII makes it unlawful, among other things, "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). "In order to establish a prima facie case of retaliation under Title VII, [a plaintiff] must demonstrate that (1) []he engaged in an activity protected under Title VII; (2) h[is] employer subjected h[im] to adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action." Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004) (citation omitted). If possible, plaintiff's retaliation claim is even more attenuated than his hostile work environment claim.
Even if plaintiff Proctor engaged in a protected activity (a highly doubtful proposition), he cannot survive Safeway's summary judgment motion on this retaliation claim because he was not subjected to an "adverse employment action" for reporting Mr. Finn. In his complaint plaintiff alleges that Safeway "did nothing to satisfy [his] harassment and after [his] warnings of legal action, . . . demote[d] [him] from full time to parttime [sic] status[.]" Doc. 1, exh. A thereto. The evidence belies this assertion. Because he never had full time status to begin with, plaintiff could not, as he alleges, have been "demoted." The uncontroverted proof shows that in accordance with the collective bargaining agreements which governed the terms of plaintiff's employment with Safeway, a part-time employee did not become full-time until he "worked in his . . . `home' store for forty (40) hours per week for sixteen (16) consecutive weeks[.]" Doc. 16, exh. L thereto at 7; and id., exh. K thereto at 6, § 6(b). Plaintiff's time records, which also are part of the record herein, "show that he never worked a minimum of 40 hours for 16 consecutive weeks." Id., exh. I thereto at 2, ¶ 8; and exh. M thereto. Consequently, because plaintiff never had full-time status he could not have been demoted, regardless of the reason. Without proof of an adverse employment action, which is essential to a prima facie Title VII retaliation claim, Safeway is entitled to summary judgment as to this claim as well.See Smith v. Richardson, 2007 WL 270734, at *6 (D. Nev. Sept. 13, 2007) (granting summary judgment in employer's favor on Title VII retaliation claim due to a lack of evidence that employer's "decision not to proceed with a preliminary inquiry" as to possible parole violations of one of employee's offenders was an adverse job action).
See Clark County School Dist. v. Breeden, 532 U.S. 268, 1510 (2001) (Title VII retaliation claim precluded where no reasonable person could have believed that a single incident of sexual harassment violated that statute).
III. Breach of Contract
In addition to his Title VII claims, plaintiff purports to be asserting a "breach of employment contract" cause of action. See Doc. 1, exh. A thereto. There is absolutely nothing in plaintiff's complaint, however, pertaining to this alleged breach. When questioned during his deposition about this breach of contract claim, plaintiff offered his theory that "[t]he employee handbook and [the] sexual-harassment [sic] policy . . . in it" is the "contract" which forms the basis for this claim. Doc. 16, exh. A thereto at 144. Plaintiff posits that Safeway breached its zero tolerance policy contained therein with respect to sexual harassment by not "immediately" acting upon the first incident with Mr. Finn, and thus "allowing [the] second . . . to occur." Id. As plaintiff made clear during his deposition, this is the sole basis for his breach of contract claim. See id. at 145-47.
In order to establish a breach of contract claim based upon an employee handbook, "plaintiff must establish: (1) that the Handbook provisions became a part of the employment contract; and (2) that the terms of the Handbook were breached." Thomas v. Garrett Corp., 744 F.Supp. 199, 200 (D. Ariz. 1989) (citingWagner v. City of Globe, 722 P.2d 250, 254 (Ariz. 1986)), aff'd without pub'd opinion, 904 F.2d 41 (9th Cir. 1990). As to the first element, the Arizona Supreme Court in Leikvold v. Valley View Comty. Hosp., 688 P.2d 170, 173 (Ariz. 1984), superseded onother grounds by statute, A.R.S. § 23-1501, et seq., "held that representations in a personnel manual upon which employees reasonably rely, can become terms of an employment contract and can limit an employer's ability to discharge employees." Thomas, 744 F.Supp. at 200.
At the same time, the Leikvold Court "cautioned that not all personnel manuals became part of the employment contract." Duncan v. St. Joseph's Hospital and Medical Center, 903 P.2d 1107, 1113 (Ariz.Ct.App. 1995). In qualifying the circumstances under which representations in employee handbooks can become part of employment contracts, the Leikvold Court stated:
We do not mean to imply that all personnel manuals will become part of employment contracts. Employers are certainly free to issue no personnel manual at all or to issue a personnel manual that clearly and conspicuously tells their employee that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason.Leikvold, 688 P.2d at 174 (emphasis added). The Leikvold Court reasoned:
Such actions, either not issuing a personnel manual or issuing one with clear language of limitation, instill no reasonable expectations of job security and do not give employees any reason to rely on representations in the manual.Id.
Conversely, if an employee handbook "contains contractual statements, [it] may alter the . . . nature of an employment relationship." Wilkes v. Electronic Data Systems Corp., 2006 WL 753161, at *3 (D. Ariz. 2006) (citation omitted). "`A statement is contractual only if it discloses a promissory intent or [is] one that the employee could reasonably conclude constituted a commitment by the employer.'" Id. (quoting Demasse v. ITT Corp., 984 P.2d 1138, 1143 (Ariz. 1999)) (other quotation marks and citation omitted) (emphasis added by Wilkes court).
In the present case, as part of his orientation plaintiff received the Handbook. Doc. 16, exh. A thereto at 52. The plain and unambiguous language of that Handbook dispels any notion that any contractual rights were created thereunder. That Handbook unequivocally and prominently states:
[I]t is expressly understood that the contents of this handbook DO NOT CONSTITUTE ALL OR PART OF THE TERMS OF A CONTRACT OF EMPLOYMENT.Id., exh. D thereto at 2 (emphasis in original). During his deposition, plaintiff readily agreed that he "at least read through" this language when he received the Handbook. Id., exh. A thereto at 146. Moreover, similar language is found in the "Store Policies" acknowledgment form which plaintiff signed on November 11, 2002:
The Store Policies are not intended to create any contractual rights or obligations[.]Id., exh. E thereto.
"Although whether the provisions of the Handbook became part of the contract is a question of fact, where the terms of the agreement are clear and unambiguous," as they are here, "the construction of the contract is a question of law for the court."See Thomas, 744 F.Supp. at 201 (citation omitted) (footnote added). Given the clear and unambiguous disclaimer language quoted above, no reasonable trier of fact could conclude that the Handbook became part of the employment agreement, if any, or that it altered the terms of plaintiff's employment with respect to Safeway's sexual harassment policy or otherwise. In the absence of a genuine issue of material fact as to an essential element of his breach of contract claim, i.e. that the Handbook provisions became part of an employment agreement, Safeway also is entitled to summary judgment as to this claim. See Almada v. Allstate Ins. Co., 285 F.3d 798, 800 (9th Cir. 2002) (affirming summary judgment in employer's favor on breach of employment agreement claim where employee manual contained, inter alia, "a prominent disclaimer that [it] was `not a statement of contractual rights'[]" because "no reasonable trier of fact could conclude that the [employee] manual modified the provisions" of plaintiff's contract).
See, e.g., Wagner, 722 P.2d at 254; Leikvold, 688 P.2d at 173; and Jeski v. American Express Co., 708 P.2d 110 (Ariz.Ct.App. 1985) (factual issue as to whether employee manual modified parties' at-will relationship where it provided for termination "at any time[,]" but also pledged to provide employees with "job security[]").
Under Leikvold, "in addition to the language" of an employee handbook, "other conduct and representations of the employer are to be considered in determining whether the Handbook became part of the [employment] agreement." Thomas, 744 F.Supp. at 202. Plaintiff Proctor has not, however, come forth with any proof even suggesting that Safeway engaged in conduct or made representations which might form the basis for a finding that the Handbook was part of his employment contract, if any. As he testified during his deposition, the Handbook itself and the sexual harassment policy contained therein are the sole basis for his breach of contract claim.
Conclusion
To summarize, as the foregoing analysis demonstrates, the record as presently constituted is "so one-sided that one party must prevail as a matter of law[;]" and that one party is defendant Safeway. See Anderson, 477 U.S. at 251-52.
In light of the foregoing, IT IS ORDERED that the motion for summary judgment by defendant Safeway, Inc. (doc. 15) is GRANTED. The Clerk of the Court is directed to enter judgment for the . . . defendant, Safeway, Inc., and terminate this action.