Ortiz v. Pacific

• Decision Date: 23 September 2013
• Docket Number: Case No. 1:12–CV–01033–LJO–GSA.
• Citation: 973 F.Supp.2d 1162
• Court: U.S. District Court — Eastern District of California
• Parties: Jose A. ORTIZ, Plaintiff, v. GEORGIA PACIFIC, Defendant.

973 F.Supp.2d 1162

Jose A. ORTIZ, Plaintiff,

v.GEORGIA PACIFIC, Defendant.

Case No. 1:12–CV–01033–LJO–GSA.

United States District Court,

E.D. California.

Sept. 23, 2013.

Jessica Juarez, Albert G. Stoll, Jr., A. Law Corporation, San Francisco, CA, for Plaintiff.

Keith I. Chrestionson, Fox Rothschild LLP, San Francisco, CA, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 41)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiff Jose A. Ortiz brings this employment discrimination case against Defendant Georgia Pacific (“GP”), alleging, among other things, that he was subjected to sexual harassment at the hands of a female co-worker, that GP failed to take action to address the co-worker's behavior, and that GP retaliated against him after he complained of the harassment.

The First Amended Complaint (“FAC”) asserts ten causes of action. The first through sixth allege unlawful gender based discrimination, hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2 (“Title VII”), and California's Fair Employment and Housing Act (“FEHA”), Cal. Gov.Code § 12940. Doc. 26 at ¶¶ 21–82. The FAC also alleges GP aided and abetted the co-worker's sexual harassment in violation of Cal. Gov.Code. § 12940(i), id. at ¶¶ 83–88; and failed to prevent the unlawful discrimination and harassment in violation of Cal. Gov.Code § 12940(k), id. at ¶¶ 89–98. Finally, Plaintiff asserts claims for intentional and negligent infliction of emotional distress. Id. at ¶¶ 99–111.

Before the Court for decision is GP's motion for summary judgment or in the alternative summary adjudication as to all of the claims in the case as well as to Plaintiff's prayer for punitive damages. Doc. 41. Defendant filed a statement of undisputed fact (“DSUF”), Doc. 41–2, along with supporting documents. Plaintiff filed an opposition, Doc. 43, and a response to Defendant's statement of fact, as well as a separate statement of disputed fact, Doc. 44. Defendant replied, Doc. 47, and filed responses to Plaintiff's statements of fact, Doc. 48, as well as evidentiary objections, Doc. 50. ¹ This motion was originally set for hearing on September 16, 2013, but the hearing was vacated and the matter submitted for decision on the papers pursuant to Local Rule 230(g). Doc. 52.

II. FACTUAL BACKGROUND²

Plaintiff was hired by GP on October 3, 2002 to serve as a general laborer in GP's Modesto corrugated packaging manufacturing facility. Cormier Decl., Doc. 41–3, at ¶¶ 5, 16; DSUF # 2. Plaintiff holds the position “Flexo Assistant Machine Operator.” DSUF # 2. He has been on medical leave since December 2011. Id. GP's written employment policies prohibit discrimination, unlawful harassment, and/or retaliation. DSUF # 8.

Plaintiff claims that, beginning in June 2010, Maria Salamanca, a female employee in Plaintiff's department, began sexually harassing Plaintiff. Both employees worked together on some occasions in 2010 and 2011. Ortiz. Depo. at 46:9–19.³

On or about November 29, 2010, Plaintiff reported Ms. Salamanca's conduct for the first time to GP's harassment hotline. According to notes of that conversation maintained by GP, Plaintiff reported that since June 2010, Ms. Salamanca had been “brushing up against [Plaintiff] when she was working near his machine [station]” and “had also been staring at him when [Plaintiff] was leaving at the end of the day.” Cormier Decl. ¶ 24; Plaintiff's Exhibit (“PX”) 6 (GP 498). Later that same day, Plaintiff called the hotline again to report that Ms. Salamanca “shows her breasts at the picnic table,” “says a lot of sexually explicit things at the picnic table,” and “hugs her co-workers all the time and gives them shoulder massages.” Id. Plaintiff also reported that when he leaves work, Ms. Salamanca “watches by the window so she can intercept him and try to touch him.” Id.

Plaintiff called the company hotline another eleven times from November 29, 2010 through March 14, 2011 in order to complain about Ms. Salamanca's conduct or to check in on the status of his prior complaints. PX 6, Doc. 46 (GP 498–99).

On or about December 7, 2010, Patrick Macias, Plaintiff's son-in-law, also reported to GP's hotline that Ms. Salamanca was engaging in inappropriate behavior of a sexual nature. Cormier Decl. ¶ 25. In his declaration, Mr. Macias indicates: he “heard [his] co-workers speak about Maria Salamanca in an explicit, sexual manner;” he “observed Tim Juarez and Maria Salamanca touch each other in a sexual manner;” and he “observed that Maria Salamancaand other co-workers [ ] would engage in highly sexualized conversations during business hours.” PX 3.

GP opened an investigation into the allegations. Among other things, GP managers interviewed Ms. Salamanca and Plaintiff on February 14, 2011. ⁴ HR Manager Marites (“Tess”) Cormier interviewed Plaintiff. Cormier Decl. ¶ 26. According to Ms. Cormier's interview notes, with respect to Plaintiff's allegation that Ms. Salamanca was “brushing up against him,” Plaintiff denied that Ms. Salamanca actually made physical contact with him. Id. at ¶ 26a. He also denied that Ms. Salamanca actually “showed her breasts” in the workplace; rather, Plaintiff explained that she wore low cut tops to work. Id. at ¶ 26b. Regarding sexually explicit language, Plaintiff asserted that Ms. Salamanca used the “F” word, and explained his belief that, while it is acceptable for men to use such language, women should not. Id. at ¶ 26bc. Finally, regarding the incidents in which Plaintiff complained that Ms. Salamanca tried to intercept him to touch him, Plaintiff explained that on a few occasions, Ms. Salamanca would come to the door where the time clock was located and stand close to him while he was trying to punch out for the day. Id. at ¶ 26d.

At his January 23, 2013 deposition, Plaintiff testified that, among other things, Ms. Salamanca would rub her chest against his chest and bend over in front of him, placing her buttocks on Plaintiff's pelvic area. Id. at 51:4–7. According to Plaintiff, this would occur every time Ms. Salamanca was near Plaintiff. Id. 45:20–21. However, it is undisputed that Plaintiff did not explain the extent of these purported physical contacts to GP, at least not during GP's initial investigation. Plaintiff testified at his deposition that he communicated to Ms. Cormier at the February 14, 2011 interview that he was “physically touched” by Ms. Salamanca, but admits that he refused to describe or show anyone how the touching occurred, apparently because Mr. Ortiz did not want to touch Ms. Cormier in demonstration. Ortiz Depo. 116–117. Plaintiff also denies ever expressing a belief that women should not use “inappropriate” language. Ortiz Depo. 159–60.⁵

Based on GP's investigation, GP concluded that Plaintiff's November 29, 2010 sexual harassment allegations were unsubstantiated, and the matter was closed on March 16, 2011. Cormier Decl. ¶ 28 & Defendant's Exhibit (“DX”) I.

On or about May 11, 2011, Plaintiff again reported his ongoing problem with Ms. Salamanca to Robert Einhell, his shift supervisor. Cormier Decl. ¶ 30; DX J. Plaintiff reported that while he was trying to enter the facility to punch in, Ms. Salamanca was inside the facility looking out the door window at him. Id. Ms. Salamanca allegedly opened the door and looked at him while he entered the facility, and then proceeded to laugh at him. Id. According to GP's records, Plaintiff denied that any physical contact was made. Id. Plaintiff's deposition testimony does not contradict GP's records. Although he testified that Ms. Salamanca did touch him, he could not recall whether he told Mr. Einhell as much. Ortiz Depo. at 163–64.

GP again investigated the complaint. Ms. Cormier and Todd Wells interviewed Ms. Salamanca approximately thirty (30) minutes after the alleged incident took place. Cormier Decl. ¶ 32 & DX K. Ms. Salamanca admitted to opening the door but denied laughing at Plaintiff. Id. Ms. Salamanca further explained that if she had known Plaintiff would be coming in early, she would have avoided being near the badge reader. Id.

On May 12, 2011, Ms. Cormier and Mr. Wells interviewed Plaintiff about the incident. Cormier Decl. ¶ 33; DX K. Plaintiff explained that he did not need Ms. Salamanca to open the door for him and that he believed Ms. Salamanca was trying to indicate that he was a “dumb ass” by laughing at him. Id.

GP scheduled a meeting on May 12, 2011 to counsel both parties. Plaintiff, Ms. Salamanca, and a union representative attended. Cormier Decl. ¶¶ 34–35; DX K. At this meeting, both parties were instructed to respect each other and ignore each other whenever they were in close proximity. Id. According to Ms. Cormier's notes, both parties consented to abide by these instructions. Id.

On June 14, 2011, Plaintiff filed a charge of sex discrimination and retaliation with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging, in pertinent part:

In June 2010, Maria Salamanca, coworker, began sexually harassing me. For example, she would purposefully rub her body against mine and would engage in inappropriate conduct with other coworkers. I reported the harassment to Tess Cormier, HR assistant, in November 2010, after which an investigation was launched. In February 2011, I was informed by Bill Yeager, HR Director, that the investigation failed to disclose any evidence of harassment and merely gave Ms. Salamanca a verbal warning; however, despite a second complaint, Ms. Salamanca continues to engage in harassing behavior such as obstructing my way. Moreover, after reporting the harassment, I was subjected to discipline by receiving negative points for failing to work overtime while others, with less seniority, refuse overtime and do not receive points against them.

PX 7, Doc. 46 at p. 97 of 150.

On August 25, 2011, Plaintiff was cited for a safety...