Everts v. Sushi Brokers LLC

247 F.Supp.3d 1075

Brittany EVERTS, Plaintiff,

v.SUSHI BROKERS LLC, Defendant.

No. CV–15–02066–PHX–JJT

United States District Court, D. Arizona.

Signed March 27, 2017

Michael Thomas Poulton, Nisha Darlene Noroian, Poulton & Noroian PLLC, Phoenix, AZ, for Plaintiff.

Brian Joseph Hembd, Dennis Ira Wilenchik, John Douglas Wilenchik, Wilenchik & Bartness PC, Phoenix, AZ, for Defendant.

ORDER

Honorable John J. Tuchi, United States District Judge

At issue is Plaintiff's Amended Motion for Summary Judgment (Doc. 70, Mot. Summ. J.), to which Defendant filed a Response (Doc. 73, Resp.), and Plaintiff filed a Reply (Doc. 75, Reply). Because the parties' briefs were adequate for the Court to resolve the issues arising in Plaintiff's Motion, the Court finds this matter appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the Court grants Plaintiff's Motion for Summary Judgment on the issue of Defendant's liability.

I. BACKGROUND

On October 15, 2015, Plaintiff Brittany Everts filed a Complaint, the operative pleading, against Defendant Sushi Brokers, LLC. (Doc. 1, Compl. at 1.) Plaintiff alleges two claims: (Count 1) pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ; and (Count 2) gender discrimination in violation of the Arizona Civil Rights Act ("ACRA"), A.R.S. § 41–1463(B). (Compl. ¶¶ 37–53.)

Beginning in early 2011, Plaintiff worked as a sushi server at Defendant's restaurant. (Doc. 71, PSOF ¶¶ 1–2.) Later that year, she became pregnant, and her pregnancy began to show. (PSOF ¶¶ 1–2.) On September 18, 2011, Randon L. Miller, Defendant's managing member and thus owner of the restaurant, left a voicemail for Plaintiff's shift manager, Ms. Morton, stating the following:

[W]e got Baby Momma. We got—oh, I can't leave these messages because obviously we'd get in trouble—but it's just ridiculous. It's all the same stuff. We can't have a big fat pregnant woman working in my restaurant. I'm sorry it doesn't fly. I will not hire them when they walk in. I will not eat them with eggs. I will not eat them with ham. No green eggs; no ham; no nothing ... I don't know how I have—who I have to deal with to get people off my schedule. So please call me tomorrow and we'll work it out.

(PSOF ¶ 9.)¹

On September 20, 2011, Ms. Morton fired Plaintiff without citing her pregnancy as the reason for the termination. (PSOF ¶ 10.) Plaintiff avers that Defendant terminated her after she refused to accept a reassignment to the hostess position because of her pregnancy. (PSOF ¶ 21.) Defendant concedes that one of the reasons it fired Plaintiff was because she refused to accept reassignment to the hostess position as a reasonable accommodation designed to protect her health and safety during her pregnancy. (Doc. 74, DSOF ¶¶ 21, 23–26.) On September 27, 2011, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (PSOF ¶ 37.) On August 24, 2015, Plaintiff received a Notice of Right to Sue from the EEOC, thus allowing the present action. (PSOF ¶ 37.)

II. LEGAL STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when: (1) the movant shows that there is no genuine dispute as to any material fact; and (2) after viewing the evidence most favorably to the non-moving party, the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56 ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Eisenberg v. Ins. Co. of N. Am. , 815 F.2d 1285, 1288–89 (9th Cir. 1987). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" of material fact arises only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

In considering a motion for summary judgment, the court must regard as true the non-moving party's evidence if it is supported by affidavits or other evidentiary material. Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; Eisenberg , 815 F.2d at 1289. The non-moving party may not merely rest on its pleadings; it must produce some significant probative evidence tending to contradict the moving party's allegations, thereby creating a question of material fact. Anderson , 477 U.S. at 256–57, 106 S.Ct. 2505 (holding that a plaintiff must present affirmative evidence in order to defeat the defendant's properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

"A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data." Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). "Summary judgment must be entered ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ " United States v. Carter , 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ).

III. ANALYSIS

A. Title VII Discrimination

Plaintiff first moves for summary judgment on Defendant's liability for her Title VII pregnancy discrimination claim. (Mot. Summ. J. at 6–17.)

1. Legal Standard

Under Title VII, an employer cannot discharge or discriminate against an individual based on sex. 42 U.S.C. § 2000e–2(a)(1). As amended by the Pregnancy Discrimination Act ["PDA"], sex discrimination under Title VII includes discrimination on the basis of pregnancy. 42 U.S.C. § 2000e(k).

Liability in a disparate treatment case, such as this one, "depends on whether the protected trait actually motivated the employer's decision." Raytheon Co. v. Hernandez , 540 U.S. 44, 52, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (ellipsis and internal quotation marks omitted). A plaintiff can prove disparate treatment "either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas ." Young v. United Parcel Service, Inc. , ––– U.S. ––––, 135 S.Ct. 1338, 1345, 191 L.Ed.2d 279 (2015) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ).

To prove disparate treatment under Title VII using direct evidence,² a plaintiff must show that the employer had a facially discriminatory policy—one which on its face applies less favorably to a protected group. Frank v. United Airlines, Inc. , 216 F.3d 845, 854 (9th Cir. 2000). When an employer openly and explicitly uses gender as a basis for disparate treatment, the employer in effect admits systematic discrimination and the case turns on whether such disparate treatment is justified under Title VII. Id. Rather than applying the McDonnell Douglas test, once a policy is shown to be facially discriminatory, the court simply asks whether sex was a "bona fide occupational qualification" ("BFOQ") as outlined in 42 U.S.C. § 2000e–2(e). Cmty. House, Inc. v. City of Boise , 490 F.3d 1041, 1049 (9th Cir. 2007). The BFOQ defense is read narrowly and can be established only by "objective, verifiable requirement[s] ... [that] concern job-related skills and aptitudes." Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc. , 499 U.S. 187, 201, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). To prove that sex³ is a BFOQ, an employer must prove by a preponderance of the evidence that "1) the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a ‘substantial basis for believing that all or nearly all [pregnant women] lack the qualification,’ or ... (b) it is impossible or ‘highly impractical ... to insure by individual testing that its employees will have the necessary qualifications for the job." EEOC v. Boeing Co. , 843 F.2d 1213, 1214 (9th Cir. 1988) (citation omitted).

2. Analysis

In discrimination cases, "[d]irect evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Rashdan v. Geissberger , 764 F.3d 1179, 1183 (9th Cir. 2014) (citation omitted). In other words, direct evidence is "evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude ... sufficient to permit the fact finder to infer that attitude was more likely than not a motivating factor in the employer's decision." Shelley v. Geren , 666 F.3d 599, 615–16 (9th Cir. 2012) (citation omitted). Specifically, direct evidence requires an admission by the decision-maker that his or her actions were based on the prohibited animus. Day v. LSI Corp. , 174 F.Supp.3d 1130, 1162 (D. Ariz. 2016). Absent such remarks, a plaintiff must show a nexus between a decision-maker's actions and a superior's discriminatory remarks. Vasquez v. County of Los Angeles , 349 F.3d 634, 640 (9th Cir. 2003). Alternatively, a facially discriminatory policy can be direct evidence of systematic sex discrimination. Frank , 216 F.3d at 854.

Plaintiff claims that a voice mail that Randon L. Miller, the restaurant's owner, left for Plaintiff's shift manager, Ms. Morton, is direct evidence of discriminatory animus. (Mot. Summ. J. at 8.) Defendant disputes that the voicemail is about Plaintiff because Mr. Miller never referred to Plaintiff by name and the voicemail never instructed Ms. Morton to fire anyone. (Resp. at 10.) Defendant, as supported by Mr. Miller's affidavit, claims that Mr. Miller is not involved in the daily operations of the restaurant, including the termination of...