Bogard v. Cannon & Wendt Elec. Co., Inc.

Citation221 Ariz. 325,212 P.3d 17
Decision Date27 January 2009
Docket NumberNo. 1 CA-CV 06-0556.,1 CA-CV 06-0556.
PartiesTamula S. BOGARD, a single woman, Plaintiff/Appellee, v. CANNON & WENDT ELECTRIC CO., INC., an Arizona corporation, Defendant/Appellant.
CourtArizona Court of Appeals
212 P.3d 17
221 Ariz. 325
Tamula S. BOGARD, a single woman, Plaintiff/Appellee,
v.
CANNON & WENDT ELECTRIC CO., INC., an Arizona corporation, Defendant/Appellant.
No. 1 CA-CV 06-0556.
Court of Appeals of Arizona, Division 1, Department D.
January 27, 2009.

[212 P.3d 19]

Wilmer Messer & Testini PLC, By Charles Mark Wilmer, Jr. and James W. Hill Ltd. By

[212 P.3d 20]

James W. Hill, Phoenix, Attorneys for Plaintiff/Appellee.

Ellis & Baker PC, By Teresa H. Foster, Phoenix Attorneys for Defendant/Appellant.

OPINION

THOMPSON, Judge.


¶ 1 Defendant/appellant Cannon & Wendt Electric Co., Inc. (C & W) appeals a judgment in favor of plaintiff/appellee Tamula S. Bogard on Bogard's claims of gender-based discrimination and retaliation. For the following reasons, we vacate the portion of the judgment awarding Bogard damages for mental pain and suffering and affirm the remainder of the judgment as modified herein.

FACTUAL AND PROCEDURAL HISTORY

A. Bogard's employment with C & W

¶ 2 Bogard was employed by C & W as an electrician from approximately March 1997 until October 1999. On August 13, 1999, Bogard filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that C & W failed to promote her to a general foreman position because of her gender. Shortly after Bogard filed that first charge of discrimination, C & W transferred Bogard to another job site and reduced her rate of pay from the foreman rate to that of a journeyman-wireman. On August 30, 1999, Bogard filed a second charge of discrimination alleging that C & W had retaliated against her for filing her original gender discrimination charge. On October 26, 1999, Bogard was terminated by C & W. Following her termination, Bogard filed a third charge of discrimination with the EEOC alleging that her discharge was further retaliation by C & W.

B. The EEOC's reasonable cause determinations

¶ 3 The EEOC issued three determinations, one for each charge of discrimination filed by Bogard, stating that the agency had investigated the charges and had determined that reasonable cause existed to believe that C & W had discriminated against Bogard on the basis of her gender and had engaged in subsequent acts of retaliation against Bogard in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1999) (Title VII).

C. Bogard's lawsuit

¶ 4 Bogard filed suit against C & W, alleging gender discrimination and retaliation in violation of Title VII and the Arizona Civil Rights Act (ACRA), Arizona Revised Statutes (A.R.S.) § 41-1401, et seq. (2007). Bogard also alleged that C & W's actions amounted to a tortious interference with an advantageous relationship, and she requested compensatory, punitive, and emotional distress damages.1 C & W filed an answer denying Bogard's allegations and asserted that Bogard's pay decrease and discharge were based on legitimate business reasons unrelated to Bogard's gender.2

1. C & W's first motion for summary judgment

¶ 5 C & W filed a motion for summary judgment, arguing that Bogard had failed to produce any evidence that C & W had discriminated against her based on her gender or that it had retaliated against her for filing her EEOC charges. C & W also argued that any back-pay award should be limited to $3,539.59 in view of Bogard's alleged failure to mitigate her damages and that Bogard should be precluded from recovering emotional distress damages or punitive damages. Bogard argued in her response that the EEOC's reasonable cause determinations and other evidence that she presented created

212 P.3d 21

genuine issues of material fact sufficient to defeat summary judgment.

¶ 6 Following oral argument, the trial court granted summary judgment to C & W on the discrimination claim, emotional distress damages claim, and punitive damages claim. Related to its ruling on the discrimination claim, the trial court determined that the EEOC's determinations were not "admissible evidence of the alleged discrimination" and could not "be used at trial or in [connection with the summary judgment] motion to prove the claims of discrimination." The trial court denied summary judgment on Bogard's retaliation claims but found that Bogard had failed to mitigate her damages by refusing to seek other employment for certain periods.3

2. Submission of the retaliation claims on stipulated facts

¶ 7 The trial court set the remainder of the case for trial. In anticipation of trial, C & W filed motions in limine seeking the exclusion of (1) the EEOC's reasonable cause determinations, (2) any evidence or argument concerning Bogard's alleged emotional distress damages, and (3) any evidence or argument concerning retaliation, other than the temporal proximity between the filing of Bogard's EEOC charges and her discharge.4 C & W also filed a motion for partial reconsideration of Bogard's remaining retaliation claims. The trial court denied that motion.

¶ 8 Prior to the scheduled trial date, the parties submitted a stipulation of facts "for the purpose of allowing the [c]ourt the necessary evidence to determine whether" C & W was entitled to summary judgment on Bogard's remaining retaliation claims. The parties also filed memoranda on that issue. The trial court issued a minute entry consisting of its findings of fact and a ruling in favor of C & W on the retaliation claims. The trial court subsequently entered a signed judgment dismissing Bogard's claims with prejudice and awarding C & W its costs.

3. Bogard's appeal of the discrimination and retaliation rulings

¶ 9 Bogard timely appealed the trial court's summary judgment in favor of C & W. On appeal, Bogard argued that the trial court erred when it granted summary judgment to C & W because the trial court (1) failed to follow established case law regarding Bogard's burden of proof, (2) refused to admit the EEOC's reasonable cause determinations, and (3) erred by weighing the evidence and finding facts when granting C & W's motion for summary judgment. C & W argued that the trial court properly granted its motion for summary judgment on both the discrimination and retaliation claims because Bogard failed to produce admissible evidence to prove the existence of a genuine issue of material fact, and the EEOC's reasonable cause determinations were insufficient to defeat C & W's motion for summary judgment.

¶ 10 With respect to Bogard's discrimination claim, this court noted that our supreme court had recently articulated the appropriate standard for evaluating the admissibility of EEOC reasonable cause determinations in Shotwell v. Donahoe, 207 Ariz. 287, 288-89, ¶ 1, 85 P.3d 1045, 1046-47 (2004). See Bogard v. Cannon & Wendt Elec. Co., Inc., 1 CA-CV 04-0489 at ¶ 28 (Ariz.App. Mar. 24, 2005) (mem. decision). Due to the fact that the EEOC's reasonable cause determinations in this case "appear[ed] to be probative," but the trial court "did not have the opportunity to determine the[ir] admissibility .. . consistent with the holding in Shotwell," we vacated the entry of summary judgment against Bogard on the discrimination claim and remanded to the trial court for "further explanation as to its determination that the EEOC findings are inadmissible." Id. at ¶ 34.

212 P.3d 22

¶ 11 With respect to Bogard's retaliation claim, we found that the parties' stipulation of facts essentially demonstrated that "the parties [did] not agree on the material facts of the case." Id. at ¶ 43. Because Bogard established a prima facie case of retaliation and raised issues of fact concerning the non-retaliatory reasons offered by C & W for its actions, we reversed the trial court's summary judgment to C & W and remanded to the trial court for further proceedings. Id. at ¶¶ 43, 50. We also vacated the trial court's award of costs to C & W. Id. at ¶ 50.

4. Pretrial motions

¶ 12 The case was reassigned from Judge Rebecca A. Albrecht to Judge Robert Houser, who set the case for a jury trial.5 In accordance with the trial court's instructions limiting each party to one motion in limine, C & W filed a consolidated motion seeking the exclusion of evidence or argument concerning emotional distress damages, punitive damages, damages that were not mitigated, and the EEOC's reasonable cause determinations, among other evidence.6 C & W argued that the EEOC's reasonable cause determinations were irrelevant and unfairly prejudicial and that the trial court's earlier damages ruling became the "law of the case" when Bogard failed to challenge that ruling in her appeal. C & W also filed a renewed motion for summary judgment on Bogard's discrimination claim, requesting that the trial court "grant summary judgment on [that] claim again and explain why the EEOC findings are inadmissible."

¶ 13 The trial court held oral argument on C & W's pretrial motions. At that time, the trial court expressed the following view regarding the procedural posture of the damages-related issues:

There wasn't anything left in this case. I don't know what was interlocutory about anything. Case then went up on appeal from the granting of summary judgment. Nobody appealed the granting of summary judgment on the punitive damages, emotional distress and such. The only thing[s] that was repealed [sic], apparently, were the rulings on retaliation [and] discrimination. Those rulings were reversed. That's where we are now, isn't it?

The trial court took C & W's motion in limine and renewed motion for summary judgment under advisement. Shortly thereafter, Bogard filed a motion with the trial court indicating that she was "approaching the trial of [the] case on a de novo basis," and "intend[ed] to present evidence on mental pain, suffering and anxiety." According to Bogard, Judge Albrecht's earlier damages ruling was not the law of the case because it was interlocutory in nature and could not have been appealed.

¶ 14 Having considered the parties' respective arguments, the trial court denied C & W's...

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