BERNARDO P. VELASCO, Magistrate Judge.
Pending before the Court are: (1) Plaintiff Maria E. Cornejo's Motion for Partial Summary Judgement as to Liability on Her Two Claims (Doc. 214) ("MPSJ"); and (2) Defendant MauiSun's Cross-Motion for Partial Summary Judgment Against Plaintiff Cornejo (Doc. 216) ("XMPSJ").
The pending motions came on for oral argument on September 8, 2016. For the following reasons, the Court denies both motions and sets this matter for trial.
Plaintiffs Maria E. Cornejo and Yareli Sierra
Cornejo moves for partial summary judgment as to liability with regard to her claims of workplace sexual harassment and retaliation. Although Cornejo initially sought partial summary judgment on the issue of successor liability with regard to the FreedomSmoke Defendants, she concedes that a genuine issue of material fact precludes entry of summary judgment on this issue. (Cornejo's Reply (Doc. 219, p. 2)). Therefore, Cornejo seeks partial summary judgment with regard to Defendant MauiSun only. (Id.).
MauiSun seeks partial summary judgment with regard to Cornejo's claim of sexual harassment only. (MauiSun's XMPSJ (Doc. 216, p. 1)).
Summary judgment is appropriate when 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(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party's evidence is presumed true and all reasonable inferences are to be drawn in the light most favorable to that party. Eisenberg v. Insurance Co. of North Amer., 815 F.2d 1285, 1289 (9
Only disputes over facts that might affect the outcome of the suit will prevent the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, if the record taken as a whole "could not lead a rational trier of fact to find for the nonmoving party," summary judgment is warranted. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9
The Ninth Circuit instructs that "[w]hen parties file cross-motions for summary judgment, we consider each motion on its merits." American Tower Corp. v. City of San Diego, 763 F.3d 1035, 1043 (9
At all relevant times, MauiSun manufactured liquids used in e-cigarettes and sold accessories related to electronic cigarettes. (MauiSun's 2015 Statement of Facts in Support of Motion for Partial Summary Judgment against Maria Cornejo (Doc. 153), ¶ 1; Cornejo's 2015 Statement of Facts (Doc. 168), ¶ 1). David Dettloff and Pamela Workman-Parker own MauiSun. (Doc. 153, ¶¶ 2-3; Doc. 168, ¶¶ 2-3).
Cornejo, who was born in 1973, went to work for MauiSun in the shipping department on or about September 15, 2010. (Doc. 153, ¶ 5; Cornejo's 2016 Statement of Facts in Support of Motion for Partial Summary Judgment (Doc. 215), ¶ 3; Doc. 215-1, Exh. 1). In October 2010, she was promoted to Human Resources Manager under the direct supervision of Dettloff. (Doc. 153, ¶¶ 7-8; Doc. 168, ¶¶ 7-8). Cornejo states in her Declaration in support of her MPSJ, that between October 2010 and June 2011 while she was at work, "Dettloff repeatedly made unwanted and offensive comments of a sexual nature to me, and he stared at parts of my body in a leering and offensive way, often commenting on the size and shape of my breasts. I eventually reported this conduct to the ACRD in connection with filing my charge. . . ." (Doc. 215, ¶ 8; see also Doc. 215-1, Exh. 1 (Cornejo's sworn statement in her ACRD charge that: "During my employment with [MauiSun] and as recent as June 21, 2011, Dettloff subjected me to comments of a sexual nature. Specifically, he would comment about my breasts, and my choice of clothing. I objected to his comments, but Dettloff did not cease.").
According to the ACRD Reasonable Cause determination issued in Cornejo's case, Cornejo testified during the ACRD investigation about the following conduct by Dettloff:
(Doc. 215-1, Exh. 2, pp. 2-3; see also Doc. 215, ¶¶ 8, 9). According to Cornejo, Dettloff's conduct described above "occurred with such frequency and caused such stress that [it] interfered with my ability to concentrate on my job duties. I often told Dettloff that this conduct was offensive and asked him to cease, but my requests were all ignored, and he appeared to enjoy harassing me." (Doc. 215, ¶ 9).
Dettloff, cites his declaration statement submitted during the ACRD investigation, denying that he made "comments to Cornejo about her breasts, although I did occasionally comment on her dress because she seemed to me to be so fashionable. The comments I made about her dress did not contain any sexual references and certainly were not intended to convey any sexual messages."
At his deposition, Dettloff denied that: in October 2010, he told Sierra that he thought she was Cornejo, "`but by looking at your [Sierra's] behind I can tell that it's not your mom [Cornejo], it's you"; in April 2011, he asked Cornejo how much she charged for hanging out in the streets, when she entered the office after speaking to her boyfriend in the parking lot; in April 2011 when Cornejo was leaving work because of a headache, he told her that the doctor would check her breasts to make them feel better and he made squeezing motions with his hands; in April 2011, he tiptoed to the front of Cornejo's desk and looked down her blouse saying he wished he were taller so he would get a better view; and that he stated in May 2011 something to the effect that he expected all managers to go to Monte Carlo for a meeting, they would meet at a nude beach and drink lots of alcohol. (Doc. 184-1, Exh. 1, pp. 15, 23-24). Although Dettloff admitted that in April 2011, when he saw Cornejo's tattoo on her lower back, he commented that he did not know that she had a tattoo, he denied saying anything about wondering how far it went down her back. (Doc. 184-1, Exh. 1, pp. 15, 22-24).
The parties do not dispute that on July 6, 2011, Dettloff suspended Cornejo for three days without pay for insubordination. (Doc. 153, ¶¶ 24-23; Doc. 168, ¶ K; Doc. 184, ¶ K). Although Cornejo disputes that she was insubordinate, it is undisputed that on July 6, 2011, Dettloff confronted Cornejo at the office about the fact that "you guys called [Workman-Parker] without my permission" to inquire whether they would have the July 4
Before leaving the office on the day she was suspended, Cornejo informed Dettloff that she and Sierra "filed a complaint for sexual harassment against you, so it's your decision what you want to do from now on, David."
MauiSun asserts that during Cornejo's suspension, Dettloff learned her files were in disarray and called in the bookkeeper who later presented Dettloff with an original and an altered petty cash log, from which Dettloff concluded that Cornejo, who was the only person who maintained the petty cash logs, "stole money from MauiSun and attempted to conceal her crime by creating the forged petty cash log." (Doc. 184-1, Exh. 2, internal exh. 5, ¶¶ 6-8, 10; see also id. at ¶ 8 (logs reflected that $100 was missing)). During her deposition, Cornejo conceded that $100 was missing, but stated that she spoke to Dettloff about it at some point and he instructed her "to go ahead and change it, that he had probably given it for a beer run." (Doc. 184-1, Exh. 6, p. 56 (Cornejo did not remember the date of that conversation)). Based on Dettloff's instructions, Cornejo "went back and. . . did a new petty cash log." (Id. at p. 57; Id. at p. 58 (Cornejo also stated during the ACRD investigation that she changed the log because it contained mistakes)).
When Cornejo returned to MauiSun after her 3-day suspension, she was informed that she had been demoted and would receive a pay cut
(Doc. 184-1, Ex. 2, internal exh. 6). Also, on July 9, 2011, Cornejo was suspended for three additional days for insubordination for refusing to sign personnel action records. (Id.). According to Dettloff, "[d]uring the second suspension, Cornejo's managers made the decision to terminate [her] for her conduct including her theft from MauiSun. [He] was not involved in the decision." (Doc. 184-1, Exh. 2, internal exh. 6, ¶ 12). On July 16, 2011, Cornejo was terminated. (Doc. 184-1, Exh. 2, internal exh. 5; Doc. 153-1, Exh. E). Cornejo contends that when Operations Manager Jess Gauntt terminated her, he said her "`services were no longer needed' because `the company was going in a different direction'." (Doc. 168, ¶ N). Cornejo asserts that the July 16, 2011 Separation Notice that Gauntt signed and gave to her indicated simply that she was: "Discharged", (Id.; see also Doc. 153-1, Exh. E (July 16, 2011 Separation Notice)). Cornejo further states that she did not learn of MauiSun's accusation that she stole petty cash until during the ACRD investigation which occurred after her termination. (Doc. 168, ¶ O). She avows that the accusation is false. (Id.).
MauiSun has submitted a July 16, 2011 Employee Separation Form, completed by Guantt, indicating Cornejo was discharged for: fighting on company property with "Francisco, Yareli", insubordination, cash shortages "see papers re: petty cash", improper conduct, falsification, "[i]nsolence, gross negligence regarding payroll [and] employees [sic] child support. (Doc. 184-1 Exh. 2, internal exh. 6).
After an investigation into the charges filed by Plaintiffs, the ACRD issued a Reasonable Cause Determination as to each Plaintiff, finding that there was reasonable cause to believe that unlawful discrimination occurred.
A reasonable cause determination "does not suggest to the jury that the EEOC has already determined there has been a violation. Rather, it suggests that preliminarily there is reason to believe that a violation has taken place." Gilchrist v. Jim Slemons Imports, 803 F.2d 1488, 1500 (9
Although the Ninth Circuit has held that the EEOC's finding of reasonable cause, after an impartial investigation, "was sufficient at least to create an issue of fact . . ." Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 F.2d 1149, 1156 (9
The reasonable case determination in Cornejo's case is quite thorough, setting out her allegations and summarizing MauiSun's position and Cornejo's, Sierra's, and Lopez's testimony. (See Doc. 215-1, Exh 2). The determination reflected that some of Cornejo's testimony about offensive conduct was corroborated by Lopez and went on to identify that testimony. The ACRD also noted that while Dettloff denied making the offensive comments alleged by Cornejo, Workman-Parker and MauiSun Operations Manager Gauntt believed Dettloff made inappropriate comments in the workplace. In this case, the ACRD reasonable cause determination is far from conclusory; instead, it discusses in detail the evidence submitted and relied upon by the ACRD in its analysis and ultimate conclusion.
Federal law prohibits employment discrimination against individuals on the basis of sex. 42 U.S.C. § 2000e-2(a)(1) ("Title VII"). "Sexual harassment is a species of gender discrimination . . ." and generally falls into two categories: hostile work environment, as Cornejo alleges here, and quid pro quo. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9
The Ninth Circuit has observed that "it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion. . . . This is because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by a factfinder, upon a full record." Nigro v. Sears Roebuck, 784 F.3d 495, 499 (9
Cornejo argues that MauiSun has not denied her allegations about Dettloff's conduct that she contends created a hostile work environment, thus requiring entry of partial summary judgment in her favor.
In opposing Cornejo's MPSJ, MauiSun submits Dettloff's August 7, 2015 Declaration statement that: "The statements I made in the declaration [submitted in 2011 during the ACRD investigation] were true to the best of my knowledge at the time I made them. I did not make any of the statements or engage in any of the conduct alleged by Plaintiffs in their ACRD charges."
(Doc. 184-1, Exh. 2, internal exh. 5, ¶ 14). MauiSun also submits Dettloff's deposition testimony denying a comment Lopez testified she heard him make to Cornejo that Cornejo's "`breasts looked like two oranges that he could pick.'" (Doc. 184-1, Exh.1, p. 14; see also Doc. 215-1, Exh. 2, p. 3)). During his deposition, Dettloff also denied several of the specific instances of conduct that Cornejo alleges in this action.
A fair reading of Dettloff's declaration submitted to the ACRD together with his deposition testimony supports the conclusion that he categorically denies making comments about Cornejo's breasts and that he denies the specific conduct alleged in incidents 1, 2, 4 through 9, and 12. However, Dettloff's ACRD Declaration and deposition testimony do not specifically address Cornejo's allegations concerning incidents 3, 10, 11, and 13 which occurred on March 1, 2011, May 9, 2011, June 2, 2011, and June 21, 2011, respectively. Dettloff also admitted that he "probably" commented about the clothing worn by female employees to the effect that the attire looked "nice . . . [or] bad, . . . [or] appropriate for work." (Doc. 184-1, Exh. 1, pp. 15-16). Because Dettloff's testimony included that his comments addressed whether the clothing was appropriate for work, Cornejo's assertion to the contrary is arguably disputed, at least in part.
Cornejo argues that Dettloff's denials do not create an issue of fact because his statements are conclusory, self-serving, and unsupported by any factual information. (Doc. 218, pp. 3-4). Cornejo's argument is unavailing. See Securities Exchange Commission v. Phan, 500 F.3d 895, 909 (9
Further, Dettloff's denials are "direct evidence of the central fact in dispute. [Dettloff] does not ask that inferences be drawn in his favor, but that his testimony be taken as true." McLauglin v. Liu, 849 F.2d 1205, 1208 (9
However, Dettloff's specific denials do not encompass the March 1
Nor can Dettloff's general assertion in his ACRD declaration that he treated Cornejo "with nothing but respect during . . ." her employment, without more, be reasonably viewed as a denial of the conduct alleged. See e.g. Villiarimo, 281 F.3d at 1065 n. 10 ("At summary judgment, th[e] court need not draw all possible inferences in [the non-movant's] favor, but only all reasonable ones.") (emphasis in original). It may well be that Dettloff's concept of treating Cornejo with respect consisted of the alleged conduct that Cornejo found offensive. The issue is not whether Dettloff subjectively thought he was being respectful, but rather whether his conduct was subjectively offensive to Cornejo and objectively offensive to a reasonable person. A reasonable jury could find the conduct offensive despite Dettloff's opinion that he was acting with "nothing but respect." Consequently, the instant record reflects that the four unaddressed incidents are undisputed. The next question is whether Cornejo is entitled to judgment as a matter of law upon consideration of those four incidents.
"To determine if an environment is sufficiently hostile or abusive to violate Title VII, [the court] . . . look[s] at `all the circumstances,' including the `frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Nichols, 256 F.3d at 872 (quoting Harris, 510 U.S. at 23). "The required level of severity or seriousness `varies inversely with the pervasiveness or frequency of the conduct.'" Id. (quoting Ellison v. Brady, 924 F.2d 872, 878 (9
Here, the record reflects four undisputed instances of comments in 2011 of a sexual nature that Cornejo found offensive: one in March, one in May, and two in June. "Title VII is not a `general civility code.' A violation is not established merely by evidence showing `sporadic use of abusive language, gender-related jokes, and occasional teasing.'" EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 998 (9
The evidence also reflects that, at some point, Cornejo as Human Resources Manager received complaints from other female employees, including Lopez
Cornejo also testified during her deposition that she knew that Dettloff made "a lot of comments, to [someone named] Gabby. He pretty much made a lot of comments to her." (Doc. 217-1, Exh. 11, p. 83). Cornejo provides no specifics about the comments to Gabby. Although Cornejo testified that Dettloff's sexual comments were constant, she also testified that: "there was [sic] times he would say them more than once a week, and there was [sic] times where he wouldn't say them for a week or two weeks." (Id.).
"[I]f . . . hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff.'" Dominguez-Curry, 424 F.3d at 1036 (quoting McGinest, 360 F.3d at 1117) (footnote omitted); cf. Brooks, 229 F.3d at 924 (9
Nor does Cornejo's reliance on the ACRD determination alter the outcome. As discussed supra, that determination is not evidence of a Title VII violation, but instead "suggests that preliminarily there is reason to believe that a violation has taken place." Gilchrist, 803 F.2d at 1500. Moreover, the ACRD determination was based on the entirety of Cornejo's allegations and not just the four undisputed incidents.
Upon consideration of the evidence presented, Cornejo has failed to carry her burden to establish that she is entitled to partial summary judgment on her sexual harassment claim.
MauiSun argues that it is entitled to summary judgment on Cornejo's sexual harassment claim because "[t]here is no genuine dispute that the comments Cornejo alleges were not sufficiently severe or pervasive enough to constitute an actionable claim for sexual harassment." (Doc. 216, p. 1). According to MauiSun, even if Cornejo's allegations about Dettloff's conduct are taken as true, the incidents she describes "are sophomoric at best." (MauiSun's Reply (Doc. 222), p. 2). Nor can Cornejo establish that they "happened daily or changed her work environment." (Id.).
As discussed above, the court considers the totality of the circumstances when determining whether a work "environment is sufficiently hostile or abusive to violate Title VII. . . ." Nichols, 256 F.3d at 872 ("The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.") (internal quotations and citations omitted). MauiSun attempts to categorize the "types" of conduct that Cornejo found offensive as follows: (1) Dettloff's comment about wanting to accompany her to a hypothetical doctor's appointment for a "woman's checkup" so he could be there for the examination; (2) two of Dettloff's comments about Cornejo's breasts; (3) Dettloff's comment about always wondering how far down Cornejo's back her tattoo went; and (4) when she was adjusting the belt of her dress, Dettloff made a comment about watching her take her clothes off. (Doc. 216 at p. 7). In categorizing Dettloff's conduct, MauiSun omits other comments Dettloff made that Cornejo found offensive or that, on one occasion, he tip-toed to the front of Cornejo's desk to look down her blouse and lamented that he was not taller so he could have a better view, and that she had witnessed him make the same comment to another female coworker. As the opponent to MauiSun's XMPSJ, Cornejo's description of Dettloff's conduct at issue must be accepted as true. See Leslie, 198 F.3d at 1157; McLaughlin, 849 F.2d at 1208.
Moreover, as discussed above, while Cornejo was contending with Dettloff's conduct directed at her, as Human Resources Manager she also received reports of Dettloff's inappropriate sexual conduct from other female employees, including Lopez and Sierra. (see 215-1, Exh. 2, p. 4; see also id. (Lopez and Sierra testified before the ACRD that they reported Dettloff's inappropriate conduct to Cornejo)). Although this consideration did not warrant partial summary judgment in Cornejo's favor because questions of fact remain as to the timing of this knowledge, the record supports the conclusion that Cornejo knew about Lopez's complaints in early June at the latest. A reasonable jury could infer that Sierra kept Cornejo, who was her mother, apprised of Dettloff's inappropriate comments directed at Sierra. Drawing all reasonable inferences in Cornejo's favor as the opponent to MauiSun's XMPSJ, the evidence supports the conclusion that Cornejo was aware of harassment directed at other employees during part of the time that she, too, was on the receiving end of Dettloff's offensive conduct. Where "`hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff.'" Dominguez-Curry, 424 F.3d at 1036 (quoting McGinest, 360 F.33d at 1117) (footnote omitted).
MauiSun also attempts to minimize the frequency and impact of Dettloff's conduct by citing to Cornejo's testimony that Dettloff made comments she found offensive "more than once a week [at times], and there was [sic] times where he wouldn't say them for a week or two weeks." (Doc. 217-1, Exh. 11, p. 83; see also Doc. 216, p.8).
To prevail, Cornejo "must show that she perceived her work environment to be hostile, and that a reasonable person in her position would perceive it to be so." Dominguez-Curry, 424 F.3d at 1035. Here, it cannot be said that Dettloff's comments were of an isolated or offhand nature. He consistently focused his comments, innuendo, and actions toward Cornejo's breasts and wanting to see her body whether she be nude or in a bikini or without her panties or at her doctor's appointment — conduct that Cornejo said she found personally offensive. At some point during her employment, Cornejo also became aware that Dettloff directed offensive comments and conduct toward other female employees, including her daughter. A reasonable jury could believe Cornejo's testimony that she found the conduct offensive. A reasonable jury could also find Dettloff's conduct objectively offensive, as well. That the comments and conduct directed at Cornejo were clustered over a fourth-month period during her 10 months at MauiSun does not defeat her claim on this record. Instead, the evidence is that Dettloff persisted with his comments over a four-month period beginning in March and he did not stop despite Cornejo's complaints to him and to other MauiSun management.
Further, as to whether Dettloff's conduct affected Cornejo's work, "`if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment." Prospect Airport Servs., Inc., 621 F.3d at 998 (quoting Harris, 510 U.S. at 21-22)). Cornejo states that Dettloff's conduct "caused such stress that [it] interfered with my ability to concentrate on my job duties . . . Dettloff's conduct . . . had become very stressful and almost intolerable to me, but I needed to keep my job, so I contacted the ACRD by telephone. . . ." (Doc. 215, ¶¶ 9-10). How and if Dettloff's conduct interfered with Cornejo's ability to do her job is a matter within her personal knowledge and it is up to the jury to assess her credibility on this issue. As discussed above, a reasonable jury could conclude that Cornejo's work environment was subjectively and objectively offensive due to Dettloff's behavior. Moreover, a reasonable jury could conclude that Dettloff's discovery during Cornejo's suspension that, among other things, her work files were in disarray, also supports her claim that Dettloff's conduct made it difficult for her to concentrate on her work.
MauiSun also argues that "no fact factfinder could believe the conduct was subjectively severe because "Cornejo admits that she went out to lunch with Dettloff on nearly a weekly basis throughout the entire time." (Doc. 216, p. 8 (citing unidentified document at p. 88)). MauiSun's citation to the record is incomplete and is not clear what evidence supports this assertion. Nor are the circumstances surrounding the luncheons elucidated. At oral argument, Cornejo's counsel stated the lunches were in a group setting. While the jury could certainly consider this fact in assessing Cornejo's credibility, the fact, alone, that Cornejo had weekly lunches with her boss, alone or in a group setting, does not necessarily vitiate Cornejo's statement that she found his conduct offensive.
At bottom, incidents of alleged harassment need not be "particularly severe . . . to defeat summary judgment . . ." where "a reasonable juror, viewing the evidence in [plaintiff's] favor, could credit [plaintiff's] general allegation that she received fairly constant abuse for a period of . . . months and find that the incidents and derogatory comments, viewed in their totality, were sufficiently pervasive and that they unreasonably interfered with [plaintiff's] ability to do her job." Pappas v. J.S.B. Holdings, Inc., 392 F.Supp.2d 1095, 1105 (D. Ariz. 2005) (footnote omitted) (denying employer's motion for summary judgment where plaintiff was subjected to hostile environment for six months). Cornejo has demonstrated that genuine issues of material fact preclude MauiSun's Cross-Motion for Partial Summary Judgment.
Cornejo also moves for partial summary judgment on her claim that MauiSun retaliated against her for complaining about Dettloff's conduct to the ACRD. To establish a prima facie case of retaliation, the plaintiff must show that (1) she engaged in a protected activity; (2) her employer subjected her to an adverse employment action
With regard to causation, the Ninth Circuit has held that this element "may be established based on the timing of the relevant actions. Specifically, when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred." Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 507 (9
In support of her argument for partial summary judgment, Cornejo relies heavily on the timing of her termination, which occurred only 10 days after she informed Dettloff that she and Sierra had complained about him to the ACRD. (See Doc. 214, pp. 9-10). Cornejo also argues that when she was terminated, she was not given a reason why, and it was only during the subsequent ACRD investigation that MauiSun cited the theft from petty cash.
MauiSun points out that when Cornejo was disciplined, she had been informed about the altered petty cash logs. (Doc. 216, p. 10 (citing Doc. 184, ¶ O)). MauiSun's submits Dettloff's ACRD declaration stating that during Cornejo's suspension it was discovered, among other things, that petty cash logs indicated that she had stolen money and her files were in disarray. (Doc. 184-1, Exh. 2, ¶¶ 8, 10; see also id. at ¶ 9). Moreover, Cornejo concedes that $100 was missing, although she contends that Dettloff had known about it and told her to "go ahead and change [the log]. . . ." (Doc. 184-1, Exh. 6, p. 56).
Cornejo objects to the admissibility of MauiSun's petty cash logs and bank statements. However, MauiSun, as the opponent to a summary judgment motion, does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the it satisfies the requirements of Rule 56. Celotex, 477 U.S. at 324 ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment."). Cornejo does not argue that the documents "cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2).
Cornejo also argues that the ACRD's reasonable cause determination supports summary judgment in her favor. As discussed above with regard to Cornejo's sexual harassment claim, while the reasonable cause determination can be considered by the jury, MauiSun is entitled to present evidence refuting those findings. Here, MauiSun has presented sufficient evidence to create a material question of fact as to whether Cornejo's termination was retaliatory. Cornejo's motion is denied with regard to her retaliation claim.
For the foregoing reasons, IT IS ORDERED that:
(1) Plaintiff Cornejo's Motion for Partial Summary Judgment on Liability on Her Two Claims (Doc. 214) is DENIED;
(2) Defendant MauiSun's Cross-Motion for Partial Summary Judgment (Doc. 216) is DENIED;
(3) the parties shall have until
(4) the final pretrial conference is SET for
(5) this matter is SET for jury trial to commence on
Dated this 22nd day of September, 2016.
The following are issues of fact to be tried and determined upon trial. Each issue of fact must be stated separately and in specific terms, followed by the parties' contentions as to each issue.
(e.g. burdens of proof; standards of review)
The following are issues of law to be tried and determined upon trial. Each issue of law must be stated separately and in specific terms, followed by the parties' contentions as to each issue.
Each party shall provide a list of witnesses intended to be called at trial. Each witness shall be indicated as either fact or expert. A brief statement as to the testimony of each expert witness shall also be included.
Each party shall provide a list of numbered exhibits. A statement of either UNCONTESTED or CONTESTED shall follow each listed exhibit. If contested, a brief statement of the objection by the opposing party shall follow the listed exhibit. (eg — 1. Laboratory Report from the Clinical Immunology Diagnostic Laboratory dated June 15, 2004. CONTESTED — Relevance, foundation and hearsay.)
Portions of depositions that will be read at trial must be listed by page and line number. A statement of either UNCONTESTED or CONTESTED shall follow. If contested, a brief statement of the objection by the opposing party shall follow the listed portion of the deposition to be offered.
The parties shall state whether the trial is a jury or bench trial.
At the Pretrial Conference, the Court will direct the parties to file proposed voir dire, objections to exhibits, deposition testimony, stipulated jury instructions, stipulations, counsel's additional proposed jury instructions, motions in limine, and trial memoranda 20 days prior to trial. Any opposition shall be filed seven days thereafter.
At the Pretrial Conference, the Court will direct the parties to file trial briefs, objections to exhibits, motions in limine, stipulations, and proposed findings of act and conclusions of law 20 days prior to trial. Any opposition shall be filed seven days thereafter.
Each party shall identify the estimated length of time it will take to present its case.
This proposed Joint Pretrial Order is hereby approved as the Final Pretrial Order on this ___ day of ________, 20__.
Additionally, although Cornejo contacted the ACRD in June 2011 concerning Dettloff's conduct, she did not file an actual charge of discrimination until after her July 16, 2011 termination. (See Doc. 168, ¶ J).
(Doc. 215-1, Exh. 2, p. 5). The Arizona statutes cited by the ACRD are "`generally identical' to . . ." the federal statutes that Plaintiff's allege were violated here. Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9
(Doc. 215-1, Exh 1, p.1).
(MauiSun's 2016 Controverting Statement of Facts (Doc. 217-1), Exh. 10, p. 79).
Cornejo went on to explain: "These are the comments that I took notes of and that I could remember[]" and that she had an independent recollection of the comments. (Id. at p. 80). It is not entirely clear whether she witnessed the conduct toward the others or whether she learned about it later. If Cornejo did not witness Dettloff's conduct toward the other women, it is unclear when she learned about it.
(Doc. 215-1, Exh. 2, p. 4; see also id. ("Cornejo testified that she spoke with Gauntt regarding Dettloff's offensive comments on or about June 1, 2011.")).
Lopez filed her charge with the ACRD on June 2, 2011. (Id.).
