366 F.3d 736 (9th Cir. 2004), 03-15112, Bodett v. CoxCom, Inc.

Docket Nº:03-15112.
Citation:366 F.3d 736
Party Name:Evelyn BODETT, wife; David Bodett, husband, Plaintiffs-Appellants, v. COXCOM, INC., a Delaware corporation, Defendant-Appellee.
Case Date:April 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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366 F.3d 736 (9th Cir. 2004)

Evelyn BODETT, wife; David Bodett, husband, Plaintiffs-Appellants,


COXCOM, INC., a Delaware corporation, Defendant-Appellee.

No. 03-15112.

United States Court of Appeals, Ninth Circuit

April 26, 2004

Argued and Submitted March 9, 2004.

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Steven D. Keist (argued and briefed), Steven D. Keist, P.C., Glendale, AZ, and John J. Jakubczyk (briefed), Phoenix, AZ, for the plaintiffs-appellants.

Richard K. Mahrle (argued and briefed), Gammage & Burnham, Phoenix, AZ, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona; David K. Duncan, Magistrate Judge, Presiding. D.C. No. CV-01-01879-DKD.

Before FERNANDEZ, HAWKINS, and THOMAS, Circuit Judges.


Evelyn Bodett and her husband, David Bodett, appeal an adverse grant of summary judgment on her claims of: (1) religious discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, the Arizona Civil Rights Act ("ACRA"), Ariz.Rev.Stat. §§ 41-1461 to -1467, and the Arizona Employment Protection Act ("AEPA"), 1

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Ariz.Rev.Stat. §§ 23-1501 to -1502; (2) violations of the First Amendment of the United States Constitution and Article 2 of the Arizona Constitution; and (3) wrongful discharge and intentional infliction of emotional distress under Arizona state law. 2

The district court found that Bodett was unable to rebut the evidence her employer, CoxCom, Inc. ("Cox"), submitted demonstrating a legitimate nondiscriminatory reason for firing Bodett--that she violated the company's harassment policy by coercing and harassing an openly gay subordinate. Because Bodett has failed to raise an inference of disparate treatment and did not argue a concomitant "failure to accommodate" theory of discrimination, we affirm.


Evelyn Bodett, a white female approximately 52 years of age, is an evangelical Christian and, at the time of these events, an 18-year employee of Cox and its predecessor, American Cable. Prior to her termination on November 30, 2000, Bodett was a Quality Assurance Manager who supervised thirteen employees, including Kelley Carson. Carson is openly gay and Bodett was aware of this when Carson came under her direct supervision. When they began working together, Bodett told Carson that homosexuality was against her Christian beliefs. Carson stated at her deposition that she did not feel threatened or harassed by this comment at the time. During her seventeen years of employment

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with Cox prior to the incidents described herein, Bodett had never received any complaints nor been reprimanded for any allegation of harassment.

In June of 2000, Carson reported to Bodett for one of several regularly scheduled "coaching" sessions. According to Bodett, Carson was in a "state of emotional distress," because she had recently broken up with her partner and was concerned she could no longer afford to make house payments. Carson asked for Bodett's advice, at which point, Bodett told Carson that "the relationship she was in, was probably the cause of the turmoil in her life," that "God's design for a relationship was between a man and a woman," and "that homosexuality is wrong, [and] considered by God to be a sin ...." 4 On Carson's suggestion, Bodett shut the door and the two prayed together. 5 Carson referred to this event as when Bodett "made [her] born again." Shortly thereafter, Carson attended church with Bodett at least once. Bodett also informed Carson about a "Women of Faith Conference," and offered to purchase a ticket for Carson despite the fact that Carson said she could not afford to go and that she already had plans for that night. Carson ended up attending the event after Bodett purchased the ticket for her.

In November of 2000, Carson received a job offer from Cox's Omaha office. The job was a promotion, and Carson discussed the offer with Bodett both before and after deciding to take it. 6 Bodett and Carson were both supervised by Mireille DeBryucker, Vice President of Customer Care. Prior to discovering that Carson intended to leave the Phoenix office, DeBryucker was informed that Carson had complained to another employee about Bodett's comments regarding her sexuality. When she found out that Carson was leaving the Phoenix office, DeBryucker asked her to lunch to find out why she was leaving.

Carson told DeBryucker that she was leaving because she was uncomfortable with the way Bodett had treated her sexuality. Carson gave as an example a recent conversation in which Bodett had mentioned to Carson at the end of performance review that she would be disappointed if Carson were dating another woman, but happy if she were dating a man. When DeBryucker asked Carson why she had not informed Bodett that her behavior made her uncomfortable or filed a complaint with human resources, Carson explained that she had not done so because "Bodett was her boss and she could not afford to lose her job."

At the time of these events, Cox had a General Harassment Policy and a "Corrective Action Policy" (together "the Policy") in place stating, inter alios, that:

"No employee shall harass another employee on the basis of race, color, religion, sexual orientation, national origin, age, disability or veteran status;"

"An employee who harasses another employee may be subject to corrective action, up to and including termination;" and

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"Verbally or physically harassing, coercing, intimidating or threatening a co-worker, supervisor or customer" is conduct "which may be cause for immediate discharge."

After her conversation with Carson, DeBryucker asked Carson to meet with Sue Hutchinson, Cox's Phoenix Human Resources Manager. Hutchinson, the author of the Policy, viewed Bodett's behavior as a violation and discussed the matter with her supervisor, Karen Ramsey, as well as with DeBryucker, the in-house attorney, and the corporate director of human resources. DeBryucker, Hutchinson and Ramsey agreed if Bodett admitted to making the statements that Carson alleged, termination would be appropriate.

On November 30, 2000, DeBryucker and Hutchinson met with Bodett, who admitted the occurrence of the events and conversations described by Carson. At the conclusion of the meeting, Hutchinson terminated Bodett, informing her that her actions were "a gross violation of Cox's policy." Upon termination, Bodett filed a complaint with the EEOC and received a right to sue on her discrimination claim. The district court granted summary judgment for Cox on all of Bodett's federal and state claims and this appeal ensues.


Summary judgment, a final order over which we take jurisdiction pursuant to 28 U.S.C. § 1291, is reviewed de novo, drawing "all reasonable inferences supported by the evidence in favor of the non-moving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). In order to uphold the district court, we must find that no genuine disputes of material fact exist and that the district court correctly applied the law. Id. A genuine dispute of material fact exists where "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In the context of a discrimination claim, if a plaintiff successfully establishes a prima facie case of discrimination, a defendant meets its resulting burden of production by "introduc[ing] evidence, which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr., 509 U.S. at 509, 113 S.Ct. 2742. In other words, the factfinder's general duty to draw all reasonable inferences in favor of the nonmovant does not require that the court make a credibility determination on the defendant's evidence at the summary judgment stage, even if it has reason to disbelieve that evidence. Id.



A Title VII religious discrimination claim may be brought under several possible theories, including disparate treatment on account of religion or failure to accommodate religious beliefs. 7 Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.2004). The district court correctly recognized that the Arizona Civil Rights Act is "generally identical" to Title VII, and therefore "federal Title VII case law [is] persuasive in the interpretation of [the Arizona] Civil Rights Act." Higdon v. Evergreen Int'l Airlines, Inc., 138 Ariz. 163, 673 P.2d 907, 909-10, n. 3 (1983).

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Disparate treatment claims must proceed along the lines of the praxis laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny. A discrimination complainant must first establish a prima facie case of disparate treatment. McDonnell Douglas outlined one method of establishing such a case based on certain forms of commonly available circumstantial evidence, 411 U.S. at 802, 93 S.Ct. 1817, but the specific method for appropriately establishing a prima facie case will vary depending on "differing factual situations."...

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