Sanger v. City of Albuquerque

MEGAN SANGER, Plaintiff,

v.CITY OF ALBUQUERQUE, and SAM AGUILAR, Defendants.

Civil No.11-455 WJ/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: June 18, 2012

MEMORANDUM OPINION AND ORDER

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT,

GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT,

GRANTING CITY'S MOTION TO AMEND ANSWER NUNC PRO TUNC, andGRANTING DEFENDANTS' MOTIONS TO EXCLUDE EXHIBIT

THIS MATTER comes before the Court upon the following motions:

• Defendant City of Albuquerque's Motion to Amend/Correct Answer to Complaint, filed May 21, 2012 (Doc. 76);

• City of Albuquerque's Motion to Strike Exhibit 4 to Plaintiff's Response to Motion for Summary Judgment, filed May 4, 2012 (Doc. 67);

• Defendant Aguilar's Motion to Exclude Exhibit Attached to Plaintiff's Motion for Partial Summary Judgment, City's Motion for Summary Judgment and Plaintiff's Response to Aguilar's Motion for Summary Judgment, filed May 11, 2012 (Doc. 70);

• Motion for Summary Judgment on Behalf of Defendant Sam Aguilar, filed April 2, 2012 (Doc. 58);

• City of Albuquerque's Motion for Summary Judgment, filed March 6, 2012 (Doc. 49); and

• Plaintiff's Motion for Summary Judgment, filed April 30, 2012 (Doc. 64);¹ Having considered the parties' briefs and the applicable law, I find the following:

• Defendant City's motion to amend the answer to include the affirmative defense for supervisory liability under Title VII is granted nunc pro tunc;

• The Court will not consider the Baldwin Report, even if it may be considered admissible as an exception to hearsay and thus Defendants' motions on excluding this report is granted; and

• Defendants are entitled to summary judgment on all of Plaintiff's claims, while Plaintiff's motion for summary judgment is denied.

BACKGROUND

This case was filed in the Second Judicial District of New Mexico, County of Bernalillo, and removed by Defendants on May 31, 2011. Plaintiff brings claims for violations of her civil rights pursuant to the Civil Rights Act of 1964, specifically claiming constructive discharge, sexual harassment, gender and race discrimination. She alleges that, while employed as a temporary employee for the City of Albuquerque ("City") under the supervision of Defendant Sam Aguilar, Aguilar made multiple sexual and racial comments to her which included, but were not limited to, physically touching her in an inappropriate manner. The Complaint asserts ten counts: Constructive Discharge (Count I); Sexual Harassment (Count II); Gender Discrimination (Count III); Race Discrimination (Count IV); Defamation (Count V); Intentional Infliction of Emotional Distress (Count VI): Breach of Employment Contract(Count VII); Violation of New Mexico Human Rights Act (Count VIII); Violation of the Civil Rights Act of 1964 (Count IX); Prima Facie Tort (Count X).

The facts in this case are largely undisputed. For this reason, the Court considers the three pending dispositive motions together. Also, because the factual presentations and positions of Defendant Aguilar and the City are aligned, the Court will refer to both Defendants' motions together, unless there is a reason to do otherwise. Before launching into the undisputed facts in this case, the Court makes the observation, as Mr. Aguilar has, that Plaintiff has not complied with the requirements of D.N.M.LR-Civ.56 in the response to Mr. Aguilar's summary judgment motion. In her "amended" response to Mr. Aguilar's motion for summary judgment, Plaintiff fails to identify the specific facts that are disputed, and to "refer with particularity" to those portions of the record upon which the non-movant relies.² However, Plaintiff has complied with the relevant local rule in her response to the City's motion for summary judgment. Thus, the Court has been presented with each party's full presentation of the facts and purported disputes of fact.

After considering the full range of legal arguments and facts presented by the parties, the Court concludes that Plaintiff's claims do not survive summary judgment, even where the Court was required to view the facts favorably to Plaintiff. The inescapable fact is that, even if Plaintiff experienced sexual harassment at the hands of her supervisor Mr. Aguilar, the City took reasonable corrective measures immediately after it became aware of the situation. Thus, because only the employer is liable under Title VII, see discussion, below, Plaintiff cannot prevail on those claims. Plaintiff's other claims will be dismissed as well, either as a result of athreshold analysis or because Plaintiff has failed to create a factual dispute to the facts presented by Defendants.

I. Undisputed Facts³

Plaintiff worked in the Graffiti Division of the City's Solid Waste Management Department. She obtained the job, which was a temporary position, through Select Staffing Temporary Services ("Select Staffing"). Plaintiff worked at the Graffiti Division for three weeks, from September 21, 2009 to October 9, 2009. Plaintiff had recently graduated with a bachelor's degree in community planning, and, while not happy about working in data entry in the City's Graffiti Removal Division (see Doc. 59-1 at 57-58), was optimistic that the job might open up full-time employment possibilities with the City. Plaintiff had a contract with Select Staffing for temporary positions, but did not have a contract with the City.

It is undisputed that Mr. Aguilar was one of Plaintiff's supervisors in the Graffiti Division. Doc. 73, Statement of Undisp. Fact ("SUF") No. 3; Doc. 6, SUF No. 5. While Mr. Aguilar did not have the authority to hire or fire Plaintiff and had an office in another building, he would assign Plaintiff tasks through another employee named Maria (apparently also referred to as "Mari" in the pleadings), and also had the authority to make recommendations about termination to the lead supervisor.⁴

Plaintiff alleges that, during the second and third weeks of her employment with the City,Mr. Aguilar's comments and conduct created a hostile work environment. The specific instances she alleges as sexual harassment/race discrimination are as follows:

(1) during the first week of her employment with the Graffiti Division, Aguilar would wink at her and lick his lips;

(2) Aguilar told Plaintiff to go buy new jeans because she had holes in hers. She stated that she had very long legs and it was hard to get jeans to fit. Mr. Aguilar then stated that her body was just right, making an "ok" sign with his fingers;

(3) Aguilar made comments that everyone was lazy at an old job site where he worked and that he worked with a bunch of "miates," which plaintiff took as meaning the"n----" word in Spanish. When Plaintiff told Aguilar her daughter was half African-American, he no longer made similar comments, although Plaintiff stated in her deposition that Aguilar attempted to make a joke of it after being told that Plaintiff's daughter was African-American;

(4) Aguilar was going to get gas and asked people in the office if anyone wanted candy. Plaintiff said she liked Milk Duds. Plaintiff stated in her deposition that Aguilar leered at her and said, "Oh, you like those sweet brown balls, don't you"?;

(5) On her last day of work for the Graffiti Division, Aguilar was looking over Plaintiff's shoulder at a picture of Plaintiff which she had up on her computer. Aguilar allegedly reached his hand into the back of Plaintiff's hair and pulled her ear to his mouth, saying words to the effect of, "that's f

--- sexy" and "let's go have an affair," in another room. It is not clear whether Plaintiff remembers Aguilar using the words "sexy" or "affair." See Doc. 59-1 at 101 & 132.⁵

Plaintiff did not return to her job after October 9, 2009. While Plaintiff did not tell Mr. Aguilar that she found his comments and conduct inappropriate or offensive, she tried to deflect his comments or change the subject. Doc. 59-1 at 102. Defendant Aguilar denies the above comments and conduct.

Plaintiff reported Mr. Aguilar's alleged comments within a day or two of their happening to Select Staffing, requesting another City job if available. Plaintiff was told by Select Staffing that she would be kept in mind if something opened up. Doc. 59-1 at 29. It is undisputed that Plaintiff never complained about or reported any of Mr. Aguilar's comments or conduct to anyone in the Graffiti Department, or anyone else at the City, or any other supervisor. Plaintiff directed her complaints to Select Staffing, and she also mentioned Mr. Aguilar's behavior to a co-worker named "Maria" who, according to Plaintiff, was supportive of Plaintiff, but told Plaintiff to "just brush it off" and "get used to it." Doc. 59-1 at 117:19-22.

Select Staffing eventually reported the situation to the City, but that occurred at some point after the last of the incidents when Mr. Aguilar allegedly grabbed plaintiff's hair. In fact, the evidence shows that Select Staffing informed the City after Plaintiff advised Select Staffing on Monday morning October 12, 2009, that she "wasn't going to be able to return" to the City position at the Graffiti Division. See Doc. 59-1 at 32. After leaving the job at the City, Select Staffing did not offer Plaintiff any other positions. Upon being notified by Select Staffing about Mr. Aguilar's conduct on or after October 12th, someone from the City called Plaintiff to discuss the situation, and to initiate an investigation. Doc. 59-1 at 29-30 &122.

Two weeks after not returning to the job, Plaintiff was contacted by someone from the City, informing her that Mr. Aguilar had been transferred to a different department and offering Plaintiff her previous position at the Graffiti Removal Department. Plaintiff refused to accept the position, even though she knew Mr. Aguilar had been transferred.⁶ Doc. 59-1 at 111, 136. Plaintiff admitted that she no longer had any apprehension concerning Mr. Aguilar once he hadbeen transferred (Doc. 59-1 at 132-33). Nevertheless, Plaintiff stated that she would...