ROSLYN O. SILVER, Chief Judge.
Before the Court are the parties' cross-motions for partial summary judgment. For the reasons below, Plaintiff's motion will be granted, and Defendant's motion will be denied.
The following facts are undisputed unless otherwise noted. Defendant, High Speed Enterprise, Inc. ("Defendant"), was incorporated in 2000 and operates Subway franchises. (Doc. 111, at ¶ 2). Kevin Mayer ("Mayer") is the owner and President of Defendant, and held those positions in 2006. (Id., at ¶ 3). Rebecca Vick ("Vick") is President of Operations for Defendant, and held those positions in 2006. (Id., at ¶ 5). As President of Operations, Vick supervises the General Managers for each Subway store operated by Defendant. (Id., at ¶ 7).
On May 9, 2011, Murillo applied for a job at the Store. (Doc 129, at 18, at ¶ 14). Murillo was pregnant when she applied. (Id.). Murillo returned to the Store later that month to follow up on her application. (Doc. 111, at ¶ 20; Doc. 111, at Ex. 1 at 47-48). Murillo testified a middle eastern manager a little taller than her spoke to her. (Doc. 111, at ¶ 20; Doc. 111, at Ex. 1 at 47-48). Murillo testified the manager told her the Store could not hire her because she was pregnant. (Doc. 129, at ¶ 19). Murillo's boyfriend, Iskander Vargus ("Vargus"), was with Murillo, and heard the manager tell Murillo the Store would not hire her due to her pregnancy. (Id., at Ex. 8, at 15:3-13).
Khairzad testified a young, Hispanic, pregnant woman turned in an application for employment in May 2006, and Khairzad put the application in a folder in the office for Vick to review. (Doc. 129, at 3, at ¶ 6; Doc. 111, at Ex. 3, at 133-37).
Defendant has not offered an explanation as to why Murillo's application was denied. Instead, Defendant argues Khairzad's testimony is not about Murillo, but another young, Hispanic, pregnant job applicant against whom Khairzad discriminated against in May 2006. In fact, Defendant disputes "whether Murillo ever spoke to Khairzad regarding a job at Subway." (Doc. 129, at 19, at ¶ 16). Defendant relies on the following to support its argument that Murillo never spoke with Khairzad.
Khairzad testified he told a pregnant applicant "you're pregnant, we can't hire you," and Murillo testified she was told "pregnant women could not be allowed to work [for Defendant] due to their insurance policy." (Doc. 129, at ¶ 19). Vargus testified the manager told Murillo the Store could not hire her because she was pregnant, but Vargus did not hear the manager mention insurance. (Doc. 129, at 10-11, at ¶¶ 31-32).
Defendant disputes whether Murillo was ever "interviewed," and asserts Khairzad never questioned applicants during an "interview." (Doc. 129, at 3, at ¶ 3).
Khairzad testified the pregnant woman who filled out the application returned two or three days later to check on the application. (Doc. 111, at Ex. 3, at 136). By contrast, Murillo testified she returned nearly three weeks later to check on her
Murillo testified she and the manager were sitting at a table in the Store when the manager told her the Store could not hire her. (Doc. 129, at 8-9, ¶¶ 24-25). Defendant states in its brief that Khairzad spoke to the applicant from behind the counter, not sitting at a table. (Doc. 128, at 4). However, the record cites support the proposition that Khairzad was behind the counter during the applicant's first visit to obtain an application, not her return visit in which Khairzad told the applicant the Store could not hire her because of her pregnancy. (Doc. 128, at 4 (citing Doc. 129, at ¶¶ 6 and 24)).
Defendant asserts Murillo is 5'2" and Khairzad testified the applicant was about his height, which is 5'9". A review of Khairzad's testimony does not support this assertion. Khairzad testified he was unsure how tall the woman was, but gave an estimate between 5' and 5'9". Murillo testified she is 5'2". (Doc. 129, at 22, ¶ 22).
Murillo testified Vargas stood on the other end of the Store during the conversation with the store manager, but Vargus testified he stood next to Murillo. (Doc. 129, at 10-11, at ¶¶ 31-32).
Vargus testified Murillo was "not very big," in response to a question about Murillo's physical appearance due to her pregnancy. (Doc. 129, at 19, at ¶ 16). Khairzad testified the woman he spoke with was "pretty big," and estimated she was about 8 months pregnant. (Id.).
Based on these alleged discrepancies in the evidence, Defendant asserts Murillo was not the job applicant who Khairzad rejected on the basis of her pregnancy and, as such, there is a genuine issue of material fact on the issue of credibility.
Also on May 29, 2006, the same day as Murillo's alleged interview with Defendant, Murillo applied for a position at Wal-Mart. (Doc. 129, at ¶ 20). Five weeks later, on July 10, 2006, Murillo began working for Wal-Mart on East Thomas Road earning $7.70 per hour. (Id., at ¶ 21). Murillo stopped working at Wal-Mart on August 9, 2006. (Id., at ¶ 22). The parties dispute whether she abandoned her job, or stopped working for reasons related to her pregnancy. (Id.). Murillo gave birth to a baby boy on October 28, 2006. (Id., at ¶ 25). On February 16, 2007, Murillo began working at Wal-Mart on West Bethany Road. (Id.). On April 22, 2007, Wal-Mart terminated Murillo because she facilitated the theft of nearly $900 in merchandise. (Id., at ¶ 28). Plaintiff objects to evidence of the termination and theft because Plaintiff's back pay calculations stopped accruing prior to this incident. (E.g., Doc. 127, at ¶ 28).
On June 5, 2006, Murillo filed a charge of discrimination with the Equal Employment Opportunity Commission ("Plaintiff" or "EEOC"), alleging she was discriminated against because of her pregnancy. On August 30, 2007, the EEOC issued a Letter of Determination stating there was reasonable cause to believe Defendant had violated Title VII. (Doc. 129, at ¶ 28).
On September 20, 2008, Plaintiff filed a Complaint alleging Defendant failed to hire Murillo because of her sex and pregnancy in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. Plaintiff and Defendant filed cross-motions for partial summary judgment. (Docs. 110, 112). The
Plaintiff seeks a partial summary judgment that Defendant is liable for pregnancy discrimination in violation of Title VII, and that three of Defendant's affirmative defenses fail: (1) failure to conciliate in good faith; (2) after-acquired evidence; and (3) failure to mitigate damages. Plaintiff argues the only issue that should be set for trial is damages. Defendant moves for partial summary judgment on two of its affirmative defenses: (1) Plaintiff failed to satisfy its statutory obligation to conciliate in good faith prior to initiating suit; and (2) Plaintiff's claim for back pay damages is barred by the after-acquired evidence doctrine.
When parties submit cross-motions for summary judgment, each motion must be considered on its own merits and analyzed under Federal Rule of Civil Procedure 56. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). To enter summary judgment, the Court must examine all evidence and find no dispute concerning genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the non-moving party is to be believed, and all reasonable inferences drawn in its favor. Id. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted). However, if the non-moving party bears the burden of proof at trial, the moving party's summary judgment motion need only highlight the absence of evidence supporting the non-moving party's claims. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (citing Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. 2548). The burden then shifts to the non-moving party who must produce evidence sustaining a genuine issue of disputed material fact. Id.
Plaintiff moves for summary judgment on liability. Title VII prohibits an employer from discriminating against an employee "because of sex," including on the basis of pregnancy. 42 U.S.C. § 2000e(k). A plaintiff may show a Title VII violation by demonstrating pregnancy or a pregnancy-related condition was "a motivating factor" in an adverse employment decision. 42 U.S.C. § 2000e-2(m). A plaintiff may establish her case through direct or circumstantial evidence. Jauregui v. City of Glendale, 852 F.2d 1128,
Plaintiff has provided direct evidence of discrimination. It is undisputed Murillo applied during May 2006, and Khairzad was the General Manager of the Store during that month. Murillo and Vargus testified when Murillo returned to the Store to check on her application, a middle eastern manager told her the Store could not hire her because she was pregnant. Defendant does not assert the Store had any other managers during that time. Defendants do not dispute that Khairzad is middle eastern. Khairzad testified he told a young, Hispanic, pregnant applicant between 5' and 5'9" he could not hire her because she was pregnant. Defendants do not identify any other applicant in May 2006 who was young, Hispanic, pregnant and between 5' and 5'9". Defendant offers no alternative explanation as to why Murillo was not hired.
Defendant does not squarely address the allegations against it. Instead, Defendant attempts to create a genuine issue of material fact by pointing to differences in details about: whether the word "insurance" was used; whether there was an official "interview"; when Murillo returned to the Store to check on her application; whether Murillo and the manager were sitting or standing during their conversation; where Vargus was standing during the conversation; how tall Murillo is; and how pregnant Murillo appeared to two male witnesses.
First, Defendant's distinctions regarding whether Murillo and the manager were sitting or standing and about Murillo's height are unsupported by the record.
Second, Defendant's minor differences in the details of the testimony do not create a genuine issue of material fact. See Reynolds v. Cnty. of San Diego, 84 F.3d 1162, 1169-70 (9th Cir.1996) ("Illuminating a potential minor inconsistency in [a party's] version of events is insufficient to raise a genuine issue of material fact....") overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir.1997); Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978) ("[W]hile summary judgment is improper where sufficient evidence supporting a claimed factual dispute is adduced, so as to require a jury or judge to resolve the parties' differing versions of the truth at trial, this evidence must be `significantly probative' of the disputed fact."). Whether the word "insurance" was used, and whether there was an official "interview" or just a conversation, does not create a genuine issue of material fact as to whether Murillo was denied employment because of her pregnancy. Likewise, the fact that Murillo testified she returned three weeks after her initial application and Khairzad
In addition, Defendant's argument that "[t]he trier of fact could easily conclude Murillo has serious credibility issues and disregard her testimony" does not defeat summary judgment. (Doc. 128, at 5). Assuming Murillo's subsequent acts of dishonesty are admissible
Plaintiff's motion for summary judgment will be granted as to liability.
The parties filed cross-motions for summary judgment on Defendant's after-acquired evidence affirmative defense. Plaintiff argues Defendant failed to meet its burden of demonstrating it would not have hired Murillo based on after-acquired evidence, and the issue is moot. Defendant argues it is entitled to summary judgment on this affirmative defense because Murillo falsified her job application by failing to disclose her prior employment with Burger King.
The doctrine of after-acquired evidence has limited applicability. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).
Here, Defendant argues Murillo failed to disclose her most recent employer, Burger King, and Defendant would not have hired Murillo had she been truthful in her application.
Defendant's after-acquired evidence affirmative defense is moot. The after-acquired evidence rule prohibits front pay and reinstatement, and cuts off backpay damages on the date Defendant learns of the new evidence. Plaintiff, however, is only seeking backpay with prejudgment interest for a seven week period starting from the date Defendant discriminated against Murillo in May 2006. (E.g., Doc. 125, at 13-14).
Plaintiff moves for summary judgment on Defendant's failure to mitigate affirmative defense. Defendant bears the burden of proving Murillo failed to mitigate her damages. Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978). To establish this affirmative defense,
Defendant has pointed to multiple businesses located in the vicinity of the Store. Defendants argue Murillo failed to mitigate her damages because she did not apply to these businesses. However, Defendant must show there were positions available for Murillo during the relevant time period, not simply that there were businesses nearby. In its response, Defendant states "[a]t trial, [Defendant] will demonstrate the availability of open positions in the fast food industry" during the relevant time period. (Doc. 128, at 16). The time to present such evidence is now. Defendant must present admissible evidence to defeat summary judgment. It has not done so. Summary judgment will be granted in favor of Plaintiff on Defendant's failure to mitigate defense because Defendant has failed to demonstrate a genuine issue of material fact as to the first requirement of this affirmative defense.
The parties filed cross-motions for summary judgment on failure to conciliate. In light of the Court's prior ruling staying the case for conciliation (Doc. 139), and the parties' subsequent conciliation efforts (See Doc. 146), Plaintiff's motion for summary judgment prohibiting Defendant from arguing failure to conciliate as an affirmative defense will be granted, and Defendant's motion for summary judgment for failure to conciliate will be denied.
Accordingly,