Arizona ex rel. Horne v. GEO Grp., Inc.

• Decision Date: 14 March 2016
• Docket Number: Nos. 13–16081,13–16292.,s. 13–16081
• Citation: 816 F.3d 1189
• Parties: State of ARIZONA, ex rel. Thomas C. HORNE, Attorney General; Arizona Department of Law, Civil Rights Division, Plaintiffs–Appellants, and U.S. Equal Employment Opportunity Commission, Plaintiff, Alice Hancock, Intervenor–Plaintiff, v. The GEO GROUP, INC., a Florida corporation, dba Arizona State Prison–Florence Westand Central Arizona Correctional Facility, Defendants–Appellees, Rick Mauldin, an individual, Defendant. State of Arizona, ex rel. Thomas C. Horne, Attorney General; Arizona Department of Law, Civil Rights Division, Plaintiffs, Alice Hancock, Intervenor–Plaintiff, and U.S. Equal Employment Opportunity Commission, Plaintiff–Appellant, v. The Geo Group, Inc., a Florida corporation, dba Arizona State Prison–Florence Westand Central Arizona Correctional Facility, Defendant–Appellee. Rick Mauldin, an individual, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

816 F.3d 1189

State of ARIZONA, ex rel. Thomas C. HORNE, Attorney General; Arizona Department of Law, Civil Rights Division, Plaintiffs–Appellants,
and
U.S. Equal Employment Opportunity Commission, Plaintiff,

Alice Hancock, Intervenor–Plaintiff,
v.
The GEO GROUP, INC., a Florida corporation, dba Arizona State Prison–Florence Westand Central Arizona Correctional Facility, Defendants–Appellees,

Rick Mauldin, an individual, Defendant.

State of Arizona, ex rel. Thomas C. Horne, Attorney General; Arizona Department of Law, Civil Rights Division, Plaintiffs,

Alice Hancock, Intervenor–Plaintiff,
and
U.S. Equal Employment Opportunity Commission, Plaintiff–Appellant,
v.
The Geo Group, Inc., a Florida corporation, dba Arizona State Prison–Florence Westand Central Arizona Correctional Facility, Defendant–Appellee.

Rick Mauldin, an individual, Defendant.

Nos. 13–16081
13–16292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 2015.
Filed March 14, 2016.

816 F.3d 1193

P. David Lopez, Lorraine C. Davis, Jennifer S. Goldstein, and Anne Noel Occhialino (argued), Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., for Plaintiff–Appellant EEOC.

Thomas C. Horne, Attorney General of Arizona; Rose Daly–Rooneyand Christian B. Carlsen(argued), Assistant Attorneys General, Civil Rights Division, Tucson, AZ, for Plaintiffs–Appellants State of Arizona and Arizona Department of Law.

Philip L. Ross(argued), Littler Mendelson, P.C., San Francisco, CA; R. Shawn Ollerand Kristy L. Peters, Littler Mendelson, P.C., Phoenix, AZ, for Defendant–Appellee The Geo Group.

816 F.3d 1194

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

Plaintiffs–Appellants the Arizona Civil Rights Division ("the Division") and the Equal Employment Opportunity Commission ("EEOC") (collectively "Plaintiffs") appeal the district court's summary judgment rulings against them and in favor of Defendant–Appellee Geo Group, Incorporated ("Geo"). A female corrections officer, Alice Hancock, filed a charge of discrimination with the Division against her employer, Geo, alleging that she had been subjected to discrimination, harassment, and retaliation in violation of state and federal employment laws. After an investigation, the Division and EEOC found reasonable cause to believe that Geo had violated the employment rights of the corrections officer and a class of female employees. Conciliation attempts failed, and the EEOC and the Division brought suit on behalf of a class of female employees alleging that Geo violated Title VII of the Civil Rights Act of 1964 and the Arizona Civil Rights Act ("ACRA").

The district court granted summary judgment in favor of Geo dismissing several employees whom neither the EEOC nor the Division had identified until after filing the complaint. The district court also dismissed several employees who had not alleged acts within 300 days of the Division's Reasonable Cause Determination. The district court dismissed the hostile work environment claim of another aggrieved employee, Sofia Hines, on the ground that the conduct she alleged was not sufficiently severe or pervasive.

This appeal raises four issues: (1) the scope of the requirement that the EEOC and the Division conciliate any claims with an employer prior to bringing suit, (2) when Title VII's 300–day limitations period starts to run in an EEOC class action; (3) whether, in an EEOC class action, an aggrieved employee is required to file a new charge of discrimination for acts that occur after the Reasonable Cause Determination; and (4) whether aggrieved employee Sophia Hines has presented material issues of fact as to her hostile work environment claim.

We vacate the district court's order. We hold that the EEOC and the Division sufficiently conciliated its class claims against Geo in this lawsuit in light of Mach Mining, LLC v. EEOC, ––– U.S. ––––, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015).¹ Assuming that Title VII and the ACRA's exhaustion requirements apply in this case, we hold that the EEOC and the Division may maintain their claims on behalf of aggrieved employees provided that the employee has alleged at least one act of misconduct that occurred within 300 days prior to the date the first aggrieved employee, Alice Hancock, filed her charge against Geo. We also hold that in an EEOC class action an aggrieved employee is not required to file a new charge of discrimination with the EEOC if her claim is already encompassed within the Reasonable Cause Determination or if the claim is "like or reasonably related" to the initial charge. Finally, we hold that aggrieved employee Sofia Hines has presented material issues of fact as to her hostile work environment claim.

816 F.3d 1195

I

Alice Hancock was employed by Geo as a correctional officer at the Arizona State Prison, Florence West Facility. Geo is a corporation that employs over 13,000 employees and provides corrections and detention management, health and mental health services to federal, state, and local government agencies. Geo contracts with the Arizona Department of Corrections to maintain and operate two facilities: (1) the low-to-medium security return-to-custody and driving-under-the-influence units at Florence West and (2) the medium-security sex-offender unit at Central Arizona Correctional Facility ("CACF").

On June 5, 2009, Hancock filed a charge of discrimination with the Arizona Civil Rights Division and the EEOC.² Hancock alleged that while working with Sergeant Robert Kroen he grabbed her crotch and pinched her vagina. Hancock filed an incident report with Geo, but contends that Geo did not remedy the harassment. After Hancock complained about Kroen's conduct, three of her coworkers complained that Hancock had made an offensive comment. Geo placed Hancock on unpaid administrative leave pending an internal investigation, and later suspended her for 15 days without pay. Three months after Hancock filed her charge of discrimination, Geo terminated Hancock's employment.

The Division investigated the allegations in Hancock's charge.³ It asked Geo for a position statement and served discovery on Geo asking for "similar complaints made by others involving the same issues or individuals as involved in [Hancock's] complaint to the [Division]." Geo provided documentation regarding previous investigations of complaints of sexual harassment at its Florence West facility involving individuals other than Hancock. Based on Geo's responses, the Division identified five additional female correctional officers who either witnessed or complained of sexual harassment. The Division then subpoenaed and interviewed current and former Geo employees, who identified additional female employees as potential aggrieved employees.

On May 19, 2010, the Division concluded its investigation and issued a Reasonable Cause Determination substantiating Hancock's allegations of discrimination and harassment based on her sex and retaliation. The Division found that Kroen had sexually harassed her, Kroen and others created a hostile work environment, and that Geo retaliated against Hancock after she complained about Kroen. Additionally, the Division identified other incidents of misconduct by Kroen and other male supervisors "that created an offensive and hostile work environment based on gender that adversely affected Hancock and a class of female employees working at the facility." The Division identified several egregious acts allegedly committed by three male correctional officers against subordinate female officers. The alleged acts included that a male officer grabbed Hancock's breast; he made offensive comments and gestures including that he was "fucking" a female correctional officer, told female officers that he wanted to "bend [them] over the desk" and "wanted to ram [them] from the back" while making humping gestures, and told female correctional officers to "suck his dick" while making gestures towards his penis. Another male

816 F.3d 1196

officer allegedly "rubbed against a subordinate female correctional officer when she bent over to replace a trash can liner," and "forcibly lifted her onto a table, shoved himself between her legs and tried to kiss her."

The Division also found reasonable cause to believe that Geo did not take reasonable steps to prevent and correct harassment in the workplace and subjected female officers to different terms and conditions of employment. The Division's investigation suggested, among other things, that even after substantiating sexual harassment claims against two male correctional officers, Geo gave one officer a positive performance review and made the other officer an instructor for mandatory training that his victims would be required to attend. Additionally the Division found that while Geo had a practice of transferring male supervisors accused of harassment to other units (which also employed female correctional officers), female correctional officers were assigned to less desirable positions after they complained.

Based on its investigation, the Division determined that "Hancock...