Rangel v. Am. Med. Response W., 1:09-cv-01467-AWI-BAM

• Decision Date: 24 April 2013
• Docket Number: 1:09-cv-01467-AWI-BAM
• Parties: DEANNA RANGEL, Plaintiff, v. AMERICAN MEDICAL RESPONSE WEST; JOSE MARTINEZ; and TRACY J. FISHER, Defendants.
• Court: U.S. District Court — Eastern District of California

DEANNA RANGEL, Plaintiff,

v.AMERICAN MEDICAL RESPONSE WEST; JOSE MARTINEZ; and TRACY J. FISHER, Defendants.

1:09-cv-01467-AWI-BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: April 24, 2013

ORDER RE: MOTION FOR

SUMMARY JUDGMENT OR

PARTIAL SUMMARY

JUDGMENT IN THE

ALTERNATIVE

(Doc. 57)

I. INTRODUCTION

Defendants American Medical Response West (hereinafter referred to as "AMR") and Tracy J. Fischer (hereinafter referred to as "Fischer") have filed a motion for summary judgment or partial summary judgment in the alternative pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, the motion for summary judgment shall be denied. The motion for partial summary judgment (i.e., summary adjudication) shall be granted in part and denied in part. Summary adjudication shall be granted in favor of Fischer (but not AMR) as to the third cause of action for defamation and in favor of AMR as to the fifth cause of action for sexual battery; summary adjudication of all other causes of action and the punitive damages claim shall be denied.

II. FACTS AND PROCEDURAL BACKGROUND

The Court refers the parties to previous orders for a complete chronology of the proceedings. On January 21, 2010, plaintiff Deanna Rangel (hereinafter referred to as "Plaintiff" or "Rangel") filed her first amended complaint against defendants AMR, Fischer (sued as Tracy J. Fisher) and Jose Martinez, asserting causes of action for (1) violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (against AMR), (2) violation of the California Fair Employment and Housing Act (FEHA), California Government Code § 12900 et seq. (against AMR and Martinez), (3) defamation - slander per se (against AMR and Fischer), (4) wrongful discharge in violation of public policy (against AMR) and (5) sexual battery in violation of California Civil Code § 1708.5 (against AMR and Martinez). In the first amended complaint, Rangel alleged as follows:

"Plaintiff is a female who was sexually harassed, defamed and retaliated against by Defendant employer, American Medical Response West . . . and Defendants Jose Martinez . . . and Tracy J. Fisher [sic] . . . , supervisors for AMR and Plaintiff's supervisors, creating a hostile work environment and quid pro quo harassment, in Tulare County, California, at the time of the acts giving rise to this action."

Rangel further alleged:

"Defendant, AMR, was an employer at all times relevant herein, and is a California corporation, qualified and doing business in the State of California, and has continuously had and does now have at least fifteen employees. Defendant, AMR, is an enterprise engaged in commerce within the meaning of 42 U.S.C. § 2000e(b). [¶] At all times relevant herein Defendants, Martinez and Fisher [sic], were employees, agents and supervisors of Defendant, AMR, within the meaning of California Government Code § 12926(r)."

Rangel further alleged:

"On or about November 6, 2008, Plaintiff filed charges of discrimination and harassment with the U.S. Equal Employment Opportunity Commission (hereinafter referred to as 'EEOC') and California Department of Fair Employment and Housing (hereinafter referred to as 'DFEH') against Defendant, AMR, alleging discrimination, sex harassment, and retaliation . . . . [¶] On or about November 6, 2008, Plaintiff filed a charges [sic] of discrimination with [DFEH] against Defendants, Martinez and Fisher [sic], alleging discrimination, sex harassment, and retaliation . . . . A copy of the DFEH/EEOC charges are attached as Exhibits A and B, hereto."

Rangel's DFEH/EEOC complaints, which had been attached to Rangel's original complaint filedAugust 20, 2009, alleged sex discrimination by AMR and Martinez and further alleged as follows:

"On May 5, 2008, I [Rangel] was subjected to a write-up. On August 10, 2008, I was verbal [sic] and visually sexually harassed by Jose Martinez, Paramedic/Supervisor. On August 28, 2008, I was terminated while in the position of EMI 1 earning $14.45 per hour. I was hired on June 25, 2001. [¶] T. J. Fisher [sic], Administrative Supervisor told me I was being written up due to a patient complaint. T. J. Fisher [sic] told me I was being terminated due to misconduct."

Rangel's DFEH/EEOC complaints further alleged:

"I believe I was subjected to a write-up and verbally and visually sexually harassed which is discrimination on the basis of my sex (female) and terminated in retaliation for complaining. My beliefs are based on the following: [¶] A. On May 5, 2008, I was subjected to a write-up due to a patient complaint although non female employees have received patient complaints and are not written up. [¶] B. On August 10, 2008, I was verbally and visually sexually harassed (example on file with DFEH) by Jose Martinez Paramedic/Supervisor. The harassment created a hostile work environment. [¶] C. On August 10, 2008, I reported the incident to Brian Perez, Shop Stewart [sic]/Paramedic and nothing was done. [¶] D. On August 28, 2008, I was terminated for misconduct although non female employees are not terminated for misconduct."

On March 4, 2011, AMR and Fischer filed their motion for summary judgment or partial summary judgment (i.e., summary adjudication) in the alternative pursuant to Federal Rule of Civil Procedure 56, contending the absence of genuine issues of material fact entitles them to judgment as a matter of law. On March 28, 2011, Rangel filed her opposition to AMR's and Fischer's motion. AMR and Fischer filed their reply to Rangel's opposition on April 4, 2011. On May 18, 2011, the Court issued an order requiring the parties to brief additional issues. Rangel filed her supplemental brief on May 31, 2011; AMR and Fischer filed their supplemental brief on June 13, 2011.

III. LEGAL STANDARD

"A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'thepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact, Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).

IV. DISCUSSION

The following facts are undisputed for the purposes of defendants' motion. On August 10, 2008, Rangel, Martinez and Rangel's partner - another AMR employee named Chris Zeigers - were on duty at AMR's Porterville, California, station. As Rangel and Zeigers were exiting the station, an altercation between Rangel and Martinez ensued, culminating in Rangel's telling Martinez he "didn't have any balls" and Martinez's unzipping his pants and exposing his testicles to Rangel. Martinez's testicles were visible for about a second. AMR and Fischer now contend summary judgment must be granted because the foregoing is insufficient to establish triable issues on any of Rangel's claims.

A. First cause of action (violation of Title VII of the Civil Rights Act) - As a threshold matter, AMR moves for summary adjudication of Rangel's first cause of action for violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. Under this cause of action, Rangel alleges: "Since at least May 2008, Defendant, AMR, has engaged in unlawful employment practices in violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). These practices including subjecting Plaintiff to a sexually hostile, abusive, intimidating and offensive work environment, which culminated in an adverse tangible employment action." Rangel further alleges, "Since at least May 2008, Defendant, AMR, subjected Plaintiff to adverse employment actions in retaliation for her opposition to and rejection of the sexual harassment in violation of § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). These practices include but are not limited to unjust discipline, continued harassment, and, ultimately, termination of her employment on or about August 28, 2008."

AMR first contends that, to the extent Rangel intends to claim sexual harassment based on a hostile work environment, summary adjudication of this cause of action must be granted because Martinez's act of exposing his testicles to Rangel was an isolated incident hardly severe or pervasive enough to alter the conditions of Rangel's employment. Title VII provides "[i]t...