Madsen v. City of Phx.

635 F.Supp.3d 772

Christina M. MADSEN, Plaintiff, v. CITY OF PHOENIX, Defendant.

No. CV-19-03182-PHX-GMS

United States District Court, D. Arizona

Signed October 18, 2022

Alden A. Thomas, Kraig J. Marton, Thomas S. Moring, Maria Crimi Speth, Jaburg & Wilk PC, Phoenix, AZ, for Plaintiff.

Chrisanne Marie Gultz, Debora Lynn Verdier, Cavanagh Law Firm PA, Phoenix, AZ, Leslie Steve Tuskai, City of Phoenix Law Department, Phoenix, AZ, for Defendant.

ORDER

G. Murray Snow, Chief United States District Judge

Before the Court is the City of Phoenix's ("Defendant") Rule 50(a) Motion for Judgment as a Matter of Law (Doc. 275). For the following reasons, Defendant's motion is denied.

BACKGROUND

Christina Madsen ("Plaintiff") filed a complaint against the City of Phoenix ("Defendant") on April 12, 2019, alleging violations of Title VII, § 1983, and other Arizona state laws. (Doc. 1.) At issue in the case is the workplace conduct of Michael Graci ("Mr. Graci"), an Assistant Aviation Director for the Defendant, toward Plaintiff, who served as the Deputy Director of Business and Properties ("B&P") for the Defendant. After summary judgment, the only remaining issue in the case was Plaintiff's hostile work environment ("HWE") claim. (Doc. 219 at 9-10.) This Court held a four-day jury trial from April 19-22, 2022, on the HWE claim. At the conclusion of Plaintiff's case, Defendant made an oral motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) and filed a written motion the next morning. (Tr. at 686:25-687:19); (Doc. 275.)¹ Defendant based its motion on three grounds: (1) Mr. Graci's conduct was not "because of sex"; (2) Mr. Graci's conduct towards Plaintiff was not sufficiently severe or pervasive; and (3) the City is not liable because it did not, and could not, have known about the alleged harassment. (Doc. 275.) The jury returned a verdict in Plaintiff's favor. Following the verdict, the Court allowed Plaintiff to respond to the Motion for Judgment as a Matter of Law. After the parties had fully briefed the issues, the Court held oral argument on September 7, 2022.

DISCUSSION

I. Legal Standard

Under Rule 50(a), a district court may grant judgment as a matter of law only if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P. 50(a)(1); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). In reviewing a Rule 50(a) motion, a court does not make credibility determinations or weigh the evidence. Reeves, 530 U.S. at 150, 120 S.Ct. 2097. A court must review the entire record, "draw all reasonable inferences in favor of the nonmoving party," id. at 150, 120 S.Ct. 2097, and "may not substitute its view of the evidence for that of the jury." Krechman v. County of Riverside, 723 F.3d 1104, 1110 (9th Cir. 2013) (quoting Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001)). Additionally, a court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151, 120 S.Ct. 2097. "The court may only give credence to evidence favoring the moving party if that evidence is 'uncontradicted,' 'unimpeached,' and 'comes from disinterested witnesses.' " Thomas v. Cannon, 289 F. Supp. 3d 1182, 1193 (W.D. Wash. 2018) (quoting Reeves, 530 U.S. at 151, 120 S.Ct. 2097). "The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006).

II. Analysis

Title VII prohibits discrimination against "any individual with respect to his . . . terms, conditions, or privileges of employment" because of their sex. 42 U.S.C. § 2000e-2(a)(1). "This includes a prohibition against the creation of a hostile work environment." Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686 (9th Cir. 2017); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)) ("When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated.") (citations omitted).

To prevail on her hostile work environment claim under Title VII, Plaintiff needed to show at trial that "she was [1] subjected to sex-based harassment that was [2] sufficiently severe or pervasive to alter the conditions of employment, and [3] that her employer is liable for this hostile work environment." Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020). The Court considers each element in turn.

A. Because of Sex

A sex-based hostile work environment claim "must rest on proof that such conduct took place because of [the] plaintiff's [sex]." Steinaker v. Sw. Airlines, Co., 472 F. Supp. 3d 540, 556 (D. Ariz. 2020). However, the conduct at issue need not be "overtly sex- or gender-specific." EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 844 (9th Cir. 2005). A plaintiff may meet her burden by offering "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). A court should consider "differences in subjective effects," as well as "differences in objective quality and quantity," in "determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific." Nat'l Educ. Ass'n, 422 F.3d at 846 (considering differences in how men and women subjectively reacted to alleged harasser's aggressive conduct as relevant to determining whether facially sex-neutral pattern of abuse was discriminatory).

The jury had a legally sufficient basis for concluding that Mr. Graci's conduct was sex-based. Plaintiff presented sufficient evidence that Mr. Graci treated women differently than men because his derogatory comments and angry outbursts appeared to be directed primarily, if not wholly, at women. Mr. Graci's conduct began with derogatory comments toward and about women. Plaintiff presented evidence that Mr. Graci used derogatory language to refer to women on at least three occasions.² Plaintiff, Ms. Gomez, and Mr. Maheu testified that he referred to multiple women—including Plaintiff—as a "bitch." (Tr. at 174:9-11; 267:9-268:4; 626:14-24.) Plaintiff and Mr. Maheu believed his use of the term to be sexist, (Tr. at 267:11-14; 626:20-22), while Ms. Gomez believed it was used out of anger. (Tr. at 174:17-19.) Mr. Graci also reportedly said that Ms. Ostreicher got her position by "laying on her back" and that another Aviation Department employee sided with a woman against Mr. Graci because she was "bouncing her boobs in front of him." (Tr. at 175:15-20; 584:9-11.)

While Defendant is correct that "whether the word 'bitch' is evidence of sex-based hostility depends entirely on context," it is the province of the jury to weigh Mr. Graci's use of the word (and his other remarks), in conjunction with his outbursts and other conduct, to determine whether his aggressive conduct towards Plaintiff was motivated by her sex. (Doc. 303 at 4.) Here, faced with two witnesses who believed he used the word in a sexist manner, Mr. Graci's series of outbursts towards women, and Plaintiff's testimony that he treated men and women differently, a jury could reasonably find Mr. Graci's use of the term "to be one piece of evidence among many, a derogatory term indicating sex-based hostility." Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002). A reasonable jury could determine that Mr. Graci's comments, in conjunction with later outbursts toward women, sufficiently demonstrated hostile conduct based on sex.

In the latter months of Mr. Graci's employment with the City, he exhibited multiple angry outbursts toward other employees, most of whom were women. On March 22, 2018, after Ms. Gomez moved one of Mr. Graci's meetings, she approached him to discuss his reaction. In that conversation, he "yelled" at her with a red face and appeared visibly angry. (Tr. at 183:9-11; 183:23-184:1.) Later that day, Ms. Gomez reported the incident to Plaintiff, telling her that she had never been treated like that before. (Tr. at 599:17-20.) Plaintiff testified that Ms. Gomez appeared visibly shaken. (Id.) Ms. Gomez also testified that she did not wish to be alone with Mr. Graci after the outburst. (Tr. at 199:12-14.)

As to her own interactions with Mr. Graci, Plaintiff testified that he became visibly angry towards her on several occasions, including: when he was initially unable to hire whom he wished in December 2017 (Tr. at 585:3-586:4); when Plaintiff and Mr. Graci discussed his difficulties with Ms. Benton in February 2018 (Tr. at 626:14-16); (TX 3 at 2); and when she met with him on March 23, 2018, to discuss his behavior towards Ms. Gomez the day before (Tr. at 601:4-7, 21-22; 602:2-4). From her desk outside Plaintiff's office, Ms. Gomez heard Mr. Graci raise his voice. (Tr. at 201:14-20.) After the meeting, Plaintiff appeared "[s]haken and flushed." (Tr. at 202:6.) Finally, Mr. Maheu testified that in April 2018, Plaintiff came to his office "visibly upset, in tears" and told him that Mr. Graci had been intimidating and angry with her in one-on-one meetings. (Tr. at 272:9-22.) As a result, Plaintiff testified that she was afraid to give him feedback in a one-on-one setting. (Tr. at 617:6-10.) Plaintiff also testified that she never saw Mr. Graci treat the men in B&P like he treated the women. (Tr. at 628:14-16.)

By contrast, the only evidence of Mr. Graci expressing anger toward a man was when he had an outburst towards Mr. Maheu in April 2018. Even so, Mr. Graci's...