U.S. E.E.O.C. v. Scolari Warehouse Markets, Inc.

• Decision Date: 22 May 2007
• Docket Number: CV No. 04-0229-DAE-RAM.
• Parties: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SCOLARI WAREHOUSE MARKETS, INCORPORATED, A Nevada Corporation, d/b/a/ Scolari's Food and Drug; and Does 1-10 Inclusive, Defendant.
• Court: U.S. District Court — District of Nevada

488 F.Supp.2d 1117

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SCOLARI WAREHOUSE MARKETS, INCORPORATED, A Nevada Corporation, d/b/a/ Scolari's Food and Drug; and Does 1-10 Inclusive, Defendant.

CV No. 04-0229-DAE-RAM.

United States District Court, D. Nevada.

May 22, 2007.

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Anna Park, Gregory L. McClinton, Victor Viramontes, U.S. Equal Employment Opportunity Commission, Los Angeles, CA, for Plaintiff.

Lesa Wilson (pro hac vice), Ljubisa Kostic, Stutz Artiano Shinoff & Holtz, APC, San Diego, CA, Miranda M. Du, Patricia K. Lundvall, McDonald Carano & Wilson, Reno, NV, for Defendants.

AMENDED ORDER DENYING SCOLARI'S MOTION FOR SUMMARY JUDGMENT ON THE PATTERN-OR-PRACTICE CLAIM AND FOR ALL BUT TWO OF THE CLAIMANTS, NAMELY, MS. FRENCH AND MS. RENFROE; DENYING SUMMARY JUDGMENT ON SCOLARI'S PUNITIVE DAMAGES CLAIM; GRANTING SUMMARY JUDGMENT TO DISMISS MS. FRENCH AND MS. RENFROE; GRANTING THE EEOC'S MOTION FOR LEAVE TO AMEND COMPLAINT; AND DENYING THE EEOC'S MOTION TO STRIKE EVIDENCE INSOFAR AS IT PERTAINS TO THE EVIDENCE IN THIS MOTION

DAVID ALAN EZRA, District Judge.

On January 5, 2007, this Court heard Scolari Warehouse Markets, Inc., a Nevada Corporation and d/b/a Scolari Food & Drug Company's ("Scolari") Motion for Summary Judgment. Additionally, this Court heard the Equal Employment Opportunity Commission's ("EEOC") Objections and Request to Strike Scolari's Evidence. Gregory McClinton, Esq., appeared at the hearing on behalf of Plaintiff; Ray J. Artiano, Esq., appeared at the hearing on behalf of Scolari. After reviewing the motions and the supporting and opposing memoranda, this Court DENIES Scolari's Motion for Summary Judgment For the Pattern-or-Practice Claim and For All But Two of the Individual Claimants, Namely, Ms. French and Ms. Renfroe; DENIES Scolari's Motion on the Punitive Damages Claim; GRANTS Summary Judgment To Dismiss Ms. French and Ms. Renfroe; GRANTS the EEOC's Motion for Leave to Amend Complaint; and DENIES Plaintiffs Motion to Strike Evidence Insofar As It Pertains to Evidence in This Motion.

BACKGROUND

On May 6, 2004, the EEOC filed a Complaint against Scolari on behalf of a class of "similarly situated" individuals, employed by Scolari, on the basis of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. The Complaint was amended on July 1, 2004. Since on or about January 1999,¹ the Charging Party, Jennifer Gould ("Ms. Gould"), and the other individuals claim that they were subjected to a hostile work environment at Scolari's stores, which Scolari's supervisors perpetuated, and that they were retaliated against for complaining of the harassment.² There are roughly seventeen (17) named claimants involved in this case and an unnamed "class" of similarly situated females for whom the Commission is seeking relief.³

A. Scolari's Company Policy Regarding Harassment

Scolari has an Associates Handbook that states its commitment to equal opportunity, to equal treatment, and to its policy on sexual harassment. Each employee is asked to sign an acknowledgment that they have received after reviewing the Handbook. Scolari also has a company policy prohibiting unlawful discrimination that directs an employee to report acts of discrimination to the employee's supervisor, the Store Manager/Department Manager, Personnel Manager, or to the Human Resources Director. After which, the policy states that the matter will be investigated promptly and handled appropriately. Additionally, Scolari provides a training course regarding unlawful discrimination and harassment.

B. Charging' Party: Ms. Gould

According to Ms. Gould's deposition testimony, on or around October 5, 2002, Ms. Gould was standing in a circle with three other individuals, Kathy Cain, Lynette Morris, and Head Clerk Mike Lyman. A then-sixteen year old employee, named Brandi Stockford, allegedly approached the circle and announced that she was not feeling well. In response, Mr. Lyman allegedly replied, "why don't you suck some cock, you'll feel better," to which Ms. Cain allegedly responded, "I would like to bite one off."⁴ Ms. Gould talked to Ms. Morris that day and told her that she believed that "what Mike had said was bad." Ms. Gould then wrote down what she heard and who was in the circle, and she gave the note to her Store Director, Larry Smith.⁵ She also expressed her concern with Mr. Lyman's managerial style and reported that she saw Ms. Stockford giving Mr. Lyman a massage a week or so before.

Following those events, Thomas Trebesh, a Directors⁶ for Scolari, began handling the case. According to a typewritten letter signed by Ms. Gould, Mr. Trebesh asked her questions and showed her statements from some of the other individuals that were involved in this incident. Two notable statements were from Ms. Cain and the Store Director Mr. Smith. Ms. Cain made a handwritten statement that she had no knowledge of Ms. Stockford being sick, and that she had not heard any conversation between Ms. Stockford and a manager. Mr. Smith also wrote a handwritten statement, denying any inappropriate comments, though he had not been standing in the circle at the time of the alleged harassment. Ms. Morris, too, subsequently denied hearing any inappropriate remarks, according to an EEOC investigator's questions and handwritten responses.

Based on those statements, Scolari made the decision to suspend Ms. Gould and, then, to terminate her employment. The termination letter, from Tracy Lerud, Personnel Manager, stated, "Your discharge is a result of your omission of facts, falsification of personnel or other records, or giving false testimony or witness." (Scolari's Ex. 3-W.) Mr. Lyman's employment was not terminated following this incident.⁷ Ms. Gould appealed that decision to a three member panel: Rod Alec, Donald Crank, and Jim Nelson were the panel members.⁸ The panel unanimously agreed to uphold Ms. Gould's termination. On October 31, 2002, Ms. Gould filed a Charge of Discrimination with the EEOC.

Subsequently, Ms. Gould wrote a letter to Ms. Morris, dated June 7, 2003, to encourage her to come forward with the truth and to describe the difficulty that she had in obtaining a job following her termination. Additionally, on January 26, 2006, Mr. Trebesh testified during his deposition that Ms. Cain confessed that she previously had lied about not hearing Mr. Lyman's comment. During Ms. Cain's deposition, she asserted her Fifth Amendment privilege not to testify. As for Ms. Stockford, at first she denied that Mr. Lyman made those comments because, as she claimed during her deposition on May 9, 2005, "she was scared" of getting fired. During her deposition, however, Ms. Stockford confirmed Ms. Gould's story and stated that it was wrong that she previously lied.⁹

On August 22, 2003, Mr. Trebesh wrote a letter to Ms. Gould, stating,

Since our original investigation, we have obtained additional information that would lead us to conclude that what occurred was actually less than clear. For this reason and in the interest of fairness, we want to give you the benefit of the doubt. We would like to offer you reinstatement to your former position as a checker at $14.45 per hour. We would hope that you seriously consider this offer.

(Scolari's Ex. 3-LL.) (Emphasis added.) Ms. Gould turned down the offer.

C. Other Claimants Alleging Harassment

The sixteen (16) other claimants alleging harassment are: Natasha McGuire, Melissa Orsie, Jennifer Dicus, Annalisa Schultz, Brandi Stockford, Rachael Kennedy, Donna Park, Melody Warren (Wagers), Elaine Cox, Dana Gendreau, Lisa Ricci, Barbara LaForge, Sandra Serrano, Julia Setzer, Katie Jacobs, and Christina Thomas.¹⁰ (Scolari's Revised Apx. A.) Of those claimants, five of them ended their employment before October 2002, the date on which the target event occurred that triggered the instant Complaint.¹¹

Scolari has numerous stores, each of which is accorded a number, such as Store No. 101, 119, or 127. The claimants involved in this case worked in various stores.¹² The most complaints appeared to have occurred in Store No. 119, where Mr. Lyman was employed.

D. Conciliation

On August 5, 2003, the EEOC sent a Letter of Determination to Scolari regarding Ms. Gould's charge, "invit[ing] the parties to join with it in a collective effort toward a just resolution of this matter." (Scolari's Ex. 3-PP). That same day, the EEOC sent Scolari a conciliation letter, summarizing the relief that the Commission sought. (Scolari's Ex. 3-QQ.) The letter further stated that, "other reasonable resolution alternatives and offers, besides those listed above, can be proposed," again inviting Scolari to join in a collective effort toward a just resolution of the matter. (ID.)

The EEOC sent a third letter on September 30, 2003, notifying Scolari that a previous letter that stated that conciliation had failed was premature. (Scolari's Ex. 3-TT.) As such, the EEOC provided the parties with another opportunity to resolve the issues in the conciliation process. That letter further stated, "Ms. Gould was informed that Respondent is offering reinstatement, two months of earnings (less mitigating damages), and three weeks vacation time. During this discussion, Ms. Gould stated Respondent's offer was unacceptable." (Id.) On September 24, 2003, the EEOC mailed a letter to Scolari's counsel, indicating that efforts to conciliate the charge were unsuccessful. (Scolari's Ex. 3-UU.)

On May 6, 2004, the EEOC filed the instant Complaint. Additional facts will be raised as they become relevant.

STANDARD OF REVIEW

Rule 56 requires summary judgment to be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party...