Mosakowski v. Pss World Medical, Inc.

• Decision Date: 10 December 2003
• Docket Number: No. CIV. 02-0092 PHXSLV.,CIV. 02-0092 PHXSLV.
• Citation: 329 F.Supp.2d 1112
• Parties: Debbie and Conrad MOSAKOWSKI, Plaintiffs, v. PSS WORLD MEDICAL, INC., Defendant.
• Court: U.S. District Court — District of Arizona

329 F.Supp.2d 1112

Debbie and Conrad MOSAKOWSKI, Plaintiffs, v. PSS WORLD MEDICAL, INC., Defendant.

No. CIV. 02-0092 PHXSLV.

United States District Court, D. Arizona.

December 10, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Neilendra Singh, Jones, Skelton & Hochuli, PLC, J. Daniel Campbell, III, Esq., Jason Edward Hunter, O'Connor & Campbell, PC, Phoenix, AZ, for Plaintiffs.

Peter Christopher Prynkiewicz, Quarles & Brady Streich Lang, LLP, Charles L. Fine, Esq., John Mark Ogden, Robert Shawn Oller, Littler Mendelson, PC, Phoenix, AZ, Timothy B. Strong, Amy H. Reisinger, Coffman, Coleman, Andrews & Grogan, PA, Jackson, FL, for Defendant.

MEMORANDUM AND ORDER

VERKAMP, United States Magistrate Judge.

Both Plaintiffs and Defendant have consented to the exercise of magistrate judge jurisdiction over this case, including the entry of final judgment. Before the Court is Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment. The Court heard oral argument on these motions on November 6, 2003.

Plaintiffs' complaint, as amended, includes six claims for relief: (1) a Title VII gender-based hostile work environment claim; (2) a Title VII retaliation claim; (3) a Title VII retaliation claim based specifically on an allegation of constructive discharge; (4) intentional infliction of emotional distress; (5) "negligent supervision"; (6) loss of consortium.

I. Standard for granting a motion for summary judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

The United States Supreme Court has stated that when a party moving for summary judgment has carried its burden under Rule 56(c), "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). ("[I]f the factual context renders respondents' claim implausible ... respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary.").

The Court must consider each party's motion for summary judgment with all reasonable inferences favoring the nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). When cross-motions for summary judgment are filed, the Court must construe all inferences in favor of the party against whom the motion under consideration is made. See, e.g., O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001).

II. Factual background

Plaintiff Debbie Mosakowski ("Plaintiff") became an employee of Defendant in 1995. In 1996 or 1997, Plaintiff signed (and back-dated) employment paperwork for Defendant which included, directly above Plaintiff's signature, a statement of Defendant's "harassment" policy. See Defendant's Statement of Facts in Support of It's Motion for Summary Judgment ("DSOF"), Ex. A at 216, Ex. B; Plaintiffs' Statement of Facts in Support of Their Motion for Partial Summary Judgment ("PSOF"), Ex. 1 at 17. Late in the year 2000, Plaintiff worked primarily with Jesus Bustos and Richard Salinas; all three worked in the purchasing department of Defendant's Phoenix branch. Plaintiff's direct supervisor at that time was Mark Bellwood, Operations Leader of Defendant's Phoenix branch. See DSOF, Ex. A at 25-27.

On or about February 26, 2001, Plaintiff discussed her work environment with Mr Bellwood, in what she described as a "casual conversation." Id., Ex. A at 54-55. Plaintiff complained to Mr. Bellwood about the use of vulgar language by Plaintiff's two immediate co-workers, Mr. Salinas and Mr. Bustos.¹ See PSOF, Ex. 1 at 53. Regarding her co-worker's conversations, Plaintiff wanted her co-workers to "take it down a thousand in her presence," because she wanted the office atmosphere to be "more professional." DSOF, Ex. A at 54-57. Within a few days of this conversation with Plaintiff, Mr. Bellwood spoke to Plaintiff's co-workers about Plaintiff's comments and, according to Plaintiff's deposition testimony, Mr. Salinas and Mr. Bustos ceased engaging in sexually-oriented conversation in her presence. See id., Ex. A at 69-71.

However, after Mr. Bellwood spoke to her co-workers about the workplace atmosphere, Mr. Salinas and Mr. Bustos began to "cold-shoulder" Plaintiff. Plaintiff stated in her deposition:

I would walk into the room and any conversation that was going on would immediately zip, and I'd, what's going on, you know. And they'd nothing, nothing, you know, and go back to what they were doing. So I'd go to my desk, get whatever I came to get, and go back on my way and hear all of it again. Well, all right, maybe they were saying something I asked not to hear. But, you know, come back and the — we used to sit at lunch together. Used to be, hey, we're going to lunch. All right, I'll be there in a minute, you know. Or they stopped asking my advice on things. I mean, they just cut off all conversation really.

Id., Ex. A at 59. Plaintiff asserts that her co-workers retaliated against her for complaining about their sexually offensive behavior by ceasing to speak with her and by "slashing her name all over the building." Id., Ex. A at 143.

Plaintiff asserts that this behavior was directly related to her conversation with Mr. Bellwood about her co-workers' behavior. Defendant asserts that Mr. Salinas' and Mr. Bustos' attitude toward Plaintiff changed for other, non-discriminatory reasons.² See Defendant's Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment. Plaintiff complained to Mr. Bellwood about the "hostile" environment created by Mr. Bustos and Mr. Salinas on three occasions in March of 2000. See DSOF, Ex. A at 73-77. Plaintiff asserts Mr. Bellwood did nothing to address her complaints. See id., Ex. A at 77-78.

During the relevant time period, Jim Evans was Defendant's Regional Leader for the Phoenix branch and Doug Maxwell was Defendant's Sales Leader for the Phoenix branch. Plaintiff asserts that in mid-April of 2001, Mr. Evans and Mr. Maxwell decided that they wanted to fire Plaintiff because she was pregnant. See id., Ex. D. Plaintiff also alleges that these men acted in concert with Mr. Salinas and Mr. Bustos to make the work environment so hostile to Plaintiff that she would quit. See id., Ex. A at 142. Plaintiff states:

I thought it was odd that I would announce my pregnancy and two weeks later have all of this fall in my lap. I never did get to the bottom of why my job was suddenly in question and by whom. I could no longer trust anyone. I asked for the severance package, and was going to leave the company. I received a phone call from Jeff Anthony, the Director of Human Resources on Wednesday, April 25th telling me he could not do the package with the insurance. I had no choice, I am pregnant, I am now forced to stay... Meetings were had with Jim Evans and our sales force, which I was told were part of who wanted me gone, and in that meeting Jim told them I was deciding whether or not to stay with the company.

Id., Ex. D.

Mr. Salinas stated in his deposition that he had heard a "rumor" that Mr. Evans and Mr. Maxwell felt Plaintiff was not "pulling her weight" and that they wanted to "get rid of" Plaintiff. PSOF, Ex. 10 at 91-92. Mr. Salinas also stated that Plaintiff told him herself how much money she was paid by Defendant. See id., Ex. 10 at 93.

At her deposition, in response to the question "if you could identify the names of the PSS employees who you believe took any kind of retaliatory action against you for making a complaint," Plaintiff stated: "Richard and Jesus. Richard Salinas, Jesus Bustos." With further prompting, Plaintiff further stated "I know that Doug [Maxwell] and Mark [Bellwood] were trying to get me to leave. I don't know if their reasons were for my making that complaint, but it was shortly after I made my complaint." DSOF, Ex. A at 39-40. Plaintiff further stated that "possibly" Mr. Maxwell and Mr. Bellwood had retaliated against her, although she also stated that she did not believe Mr. Maxwell knew about her complaint. See id., Ex. A at 145.

In late April of 2001 Plaintiff contacted the president of PSS, Doug Harper, about the hostile environment at the Phoenix branch purchasing department. See PSOF, Ex. 2. Mr. Harper referred her complaint to Mr. Evans, Defendant's Regional Leader for the area encompassing the Phoenix branch. See id., Ex. 2.

In late May or early June of 2000, Victor Mondragon temporarily replaced Mr. Bellwood as the Phoenix branch Operations Leader. When Plaintiff complained about the hostile environment created by Mr. Salinas and Mr. Bustos to Mr. Mondragon on June 5, 2000, Mr. Mondragon allegedly offered to transfer Plaintiff to another department within the company, noting that she would have to take a pay...