Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc.

Decision Date07 January 2013
Docket NumberNo. CV–10–02101–PHX–GMS.,CV–10–02101–PHX–GMS.
Citation916 F.Supp.2d 1005
CourtU.S. District Court — District of Arizona


Andrea Gail Baran, Christopher Robert Houk, Mary Joleen O'Neill, Equal Employment Opportunity Commission, James P. Driscoll–Maceachron, Nancy Eileen Griffiths, U.S. EEOC, Phoenix, AZ, for Plaintiff.

Richard Seth Cohen, Victoria R. Torrilhon, Amy Jo Gittler, Jackson Lewis LLP, Phoenix, AZ, for Defendant.


G. MURRAY SNOW, District Judge.

Pending before the Court is Defendant Swissport Fueling, Inc.'s (Swissport) Motion for Summary Judgment. (Doc. 239.) Also pending are the Equal Employment Opportunity Commission's (the EEOC) Motion to Strike (Doc. 279) and Motion for Leave to File Surreply (Doc. 280). For the reasons discussed below, Swissport's Motion for Summary Judgment is granted in part and denied in part. The EEOC's Motion to Strike Reply is granted in part and denied in part, and its Motion for Leave to File Surreply is denied as moot.


Defendant Swissport provides fueling services to over twenty airlines at Sky Harbor Airport in Phoenix, Arizona. (Doc. 235 at ¶ 1.) Swissport hires fuelers to perform a variety of tasks at the airport, but their main job is to attach fuel lines to planes and monitor them to ensure that they receive the requisite amount of fuel. ( Id. at ¶ 2.) During the time period relevant to this suit, Swissport employed fuelers who had emigrated from various countries in Africa, including Sudan, Nigeria, Ghana, and Sierra Leone. (Doc. 1 at 1; Doc. 269 at 2.)

The EEOC brought this suit in November 2010 alleging that Swissport had subjected the African fuelers to illegal and discriminatory treatment in the workplace. (Doc. 1 at 1.) The EEOC alleges that Christian Pelkey, a Swissport manager, was primarily responsible for the fuelers' complaints of verbal abuse, which included calling the fuelers “monkey” and referring to their food as “monkey soup.” (Doc. 269 at 2–3.) The allegations also state that Pelkey ridiculed the fuelers' national origins, yelled and cursed at them, and generally treated them more harshly than their non-African counterparts. ( Id. at 3.) The EEOC alleges that other supervisors also subjected the African fuelers to racially discriminatory treatment, though not to the same extent as Pelkey. ( Id.)

In April 2007, a group of African fuelers signed a petition to Jim Vescio, Swissport's general manager, complaining about Pelkey's racist behavior. (Doc. 266–71.) Afterward, eighteen of the fuelers who had signed the petition filed charges of discrimination with the EEOC, alleging harassment, disparate treatment, and retaliation.1 ( See Doc. 235–28.) The EEOC investigated these allegations over the course of the next three years, requesting and receiving from Swissport over 3000 documents regarding Swissport's employment practices. ( Doc. 243 at 2.) Through obtaining these documents, the EEOC possessed the identities and contact information for all potential class members in this suit. ( Id. at 8.) However, as discussed below, the EEOC did not disclose to Swissport the identities of all the claimants on whose behalf it sought relief, and in some cases did not even contact them, until after it brought suit. In June 2010, the EEOC issued letters of determination (“LODs”) for only the eighteen fuelers who had initially filed charges, finding reasonable cause to believe that they had been subjected to harassment, disparate treatment, and retaliation in the workplace. (Doc. 235–29.)

Swissport and the EEOC attempted to conciliate the unlawful practices beginning in June 2010. (Doc. 235–32 at 81.) They exchanged a series of letters in which the EEOC made monetary demands and Swissport responded with requests for more information with which to evaluate its liability. (Doc. 269 at 42.) In these letters, the EEOC requested damages on behalf of the eighteen charging parties, as well as nine unidentified class members for whom reasonable cause LODs were never issued. (Doc. 235–32 at 96.) The letters culminated in an in-person meeting conducted at the EEOC offices, ( id.), but conciliation ultimately failed in September 2010, (Doc. 266–94 at 1). Thereafter, the EEOC filed suit against Swissport on behalf of the fuelers, alleging that since at least May 2005, Swissport has engaged in unlawful employment practices such as hostile work environment, failure to correct, failure to promote on the basis of race, retaliation, and constructive discharge. (Doc. 1 at ¶¶ 6–11.)

At the scheduling conference held in this conference a number of months after the EEOC filed the complaint, the EEOC identified seventeen charging parties, though it indicated that it was investigating twenty additional potential claimants.2 ( Doc. 243 at 3.) The Court granted the EEOC sixty days from the date of the scheduling conference to add claimants in addition to the seventeen already identified. (Doc. 18 at ¶ 2; Doc. 243 at 4.) By the end of that deadline, on June 28, 2011, the EEOC had identified only nine additional claimants but stated that it was now aware of seventy-five potential claimants none of whom it identified.3 ( Doc. 243 at 4.) It indicated, in a Motion for Extension of Time filed on June 28, that in May of 2011 it had sent letters to 188 fuelers for whom Swissport had provided contact information in 2008, and sought additional time to investigate and identify these additional parties. ( Id.) The Court allowed the EEOC to continue its investigation on the condition that it would have to show good cause for its delay in adding any claimants who were not identified by the June 28 deadline. ( Id. at 6–7.) Ultimately, the Court permitted the EEOC to add twelve claimants in addition to the seventeen initially identified and the nine identified by June 28.4 ( Id. at 10–18.) 5

Swissport now contends that it is entitled to summary judgment on the following grounds: (1) the EEOC failed to conciliate in good faith, (2) the EEOC has failed to muster sufficient evidence to support the hostile work environment claims of twenty-four of the twenty-six claimants, (3) Olai–Chu's failure to promote claim is outside the scope of the EEOC's initial LOD, (4) the EEOC alleges retaliation and constructive discharge claims that were not pled in the Complaint, (5) two claimants are time-barred, (6) the EEOC has not met the standard for punitive damages, and (7) the EEOC does not have sufficient evidence to support the unlawful retaliation claims of eight of its claimants.

I. Motion to Strike

With its Reply (Doc. 275), Swissport attached three appendixes: an appendix of sham affidavits (Doc. 275–1), an appendix of evidentiary objections (Doc. 275–2), and an appendix of misinterpretations (Doc. 275–3). Swissport also filed a Supplemental Statement of Facts in Support of its Motion for Summary Judgment, (Doc. 276), along with five new exhibits, in addition to the Statement of Facts and exhibits originally filed with its Motion for Summary Judgment. The EEOC has moved to strike all three appendixes and the Supplemental Statement of Facts. (Doc. 279.)

The Local Rules do not provide for additional exhibits attached to replies in support of summary judgment or for a separate response to the non-moving party's statement of facts. B2B CFO Partners, LLC v. Kaufman, 856 F.Supp.2d 1084, 1086–87 (D.Ariz.2012). “This is consistent with the moving party's need to show no genuine issue of material facts exists and that there is no need for a trier of fact to weigh conflicting evidence....” Id. (citing EEOC v. TIN Inc., No. CV–06–1899–PHX–NVW, 2008 WL 2323913, at *1 (D.Ariz. June 2, 2008), rev'd on other grounds,349 Fed.Appx. 190 (9th Cir.2009)).

The moving party may set forth objections to the responsive statement of facts, and those objections “may be set forth in a separate reply statement of facts, but that filing may not introduce new facts or evidence. Larson v. United Natural Foods W., Inc., No. CV–10–185–PHX–DGC, 2010 WL 5297220 at *2 (D.Ariz. Dec. 20, 2010) (emphasis in original).

In response to the EEOC's Motion to Strike, Swissport argues that this Court has, in all previous cases, erroneously interpreted the Local Rules to prohibit external documents submitted with replies. (Doc. 282 at 2.) Swissport argues that the language of Local Rule 7.2(m)(2) supports its interpretation that external documents attached to replies are, in fact, permitted. That Rule, however, states only that an objection may be made to a statement of facts filed with a party's responsive memorandum. The documents attached by Swissport to its Reply go beyond objections, setting forth new statements of fact and new exhibits to support those statements.

As discussed above, new evidence is flatly prohibited in a reply in support of summary judgment. The EEOC's Motion to Strike is therefore granted on Swissport's Supplemental Statement of Facts. Swissport's appendix of evidentiary objections, however, is permitted by Local Rule 7.2(m)(2), and the EEOC's Motion to Strike is denied as to that appendix. Conversely, Swissport's appendix of misinterpretations appears to be an attack on the weight and credibility of the testimony of the claimants in this case. Swissport's burden on summary judgment is to show that no material issue of fact exists, not to dispute credibility. The appendix of misinterpretations is therefore stricken. Finally, Swissport's sham appendix will be construed as an objection permitted under Local Rule 7.2(m)(2), as it pertains to information allegedly previously undisclosed by the EEOC. The EEOC's Motion to Strike, therefore, is granted as to the Supplemental Statement of Facts and the appendix of misinterpretations, but denied as to the appendix of evidentiary objections and sham appendix.

II. Swissport's Evidentiary Objections

Attached to Swissport's Reply are evidentiary objections to the EEOC's Statement of...

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