Storey v. Chase Bankcard Services, Inc.

970 F.Supp. 722

Terri L. STOREY, Plaintiff, v. CHASE BANKCARD SERVICES, INC., a Delaware corporation, Defendant.

No. CIV-96-2493-PHX-ROS.

United States District Court, D. Arizona.

July 21, 1997.

Rosemary Cook, Law Office of Rosemary Cook, Phoenix, AZ, for Terri L. Storey.

Terri L. Storey, pro se.

Thomas Derek Arn, Peter Christopher Prynkiewicz, Robert Kendall Jones, Streich Lang, P.A., Phoenix, AZ, for Chase Bankcard Services, Inc.

ORDER

SILVER, District Judge.

Pending before the Court is Defendant's Motion to Dismiss Count One and Count Two of Plaintiff's Complaint for Failure to State a Claim Upon Which Relief can be Granted.

BACKGROUND

On August 26, 1996, Plaintiff Terri L. Storey filed a complaint in the Superior Court of Maricopa County against Chase Bankcard Services, Inc., a Delaware corporation. On November 2, 1996, Defendant removed the action to this Court on the basis of diversity of citizenship.

Plaintiff's allegations are as follows. Plaintiff was employed as a Senior Collector by Defendant from on or about March 7, 1994 to August 31, 1995. (Compl. ¶¶ 4, 12.) Plaintiff was subjected to sexual advances by her female manager, Julie DiPaola, on and after July 25, 1995. Id. ¶ 7. On or about August 18, 1995, Plaintiff verbally refused DiPaola's advances. Id. ¶ 8. In retaliation for Plaintiff's refusal of DiPaola's sexual advances, Plaintiff was not promoted and was suspended for three days. Id. ¶¶ 9, 10. Defendant failed to take appropriate steps to discipline DiPaola. Id. 16. In addition, other female employees were sexually harassed by DiPaola. Id. ¶ 6.

In Count One, Plaintiff alleges that Defendant violated the Arizona Civil Rights Act ("ACRA"), A.R.S. § 41-1461 et seq., by subjecting Plaintiff to a hostile working environment ("hostile environment" claim) in which her terms of employment were conditioned on sexual favors (quid pro quo claim), and that Plaintiff was terminated in retaliation for her complaints about DiPaola's conduct (retaliation claim). Id. ¶ 16.

In Count Two, Plaintiff alleges a wrongful termination in violation of public policy. Id. ¶ 22.

Plaintiff, in Counts Three and Four, also alleges causes of action for intentional infliction of emotional distress and wrongful retention/failure to supervise. Id. ¶¶ 25, 31, 32.

On November 8, 1996, Defendant filed a Motion to Dismiss Counts One and Two for failure to state claims upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). Defendant does not seek dismissal of the claim of retaliatory discharge in Count One, (Def.'s Reply Mem. at 2 n. 1), or dismissal of Counts Three and Four, (Def.'s Mem. Supp. Dism. at 2 n. 1).

DISCUSSION

In determining whether a complaint states a valid claim, all allegations of material facts are taken as true and construed in the light most favorable to the nonmoving party. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). A complaint should not be dismissed unless it appears beyond a doubt that a plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, 506 U.S. 999, 113 S.Ct. 599, 600, 121 L.Ed.2d 536 (1992).

I. MOTION TO DISMISS COUNT ONE

Defendant argues that Count One fails to state a claim because ACRA does not allow a claim for same-sex sexual harassment. The issue before the Court is whether sexual harassment of a female employee by another female coworker is actionable under ACRA. ACRA, provides in relevant part:

It is an unlawful employment practice for an employer: To ... discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, age, handicap or national origin.

A.R.S. § 41-1463(B)(1).

This provision is essentially identical to a provision in Title VII of The Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a)(1).¹

"[I]n enacting civil rights legislation which is substantially identical to the federal act, the Arizona legislature intended to accomplish the same objectives on the state level." Civil Rights Div. of the Arizona Dep't of Law v. Superior Court, 146 Ariz. 419, 706 P.2d 745, 750 (App.1985). Because ACRA is patterned after Title VII, decisions interpreting Title VII are regarded by Arizona's courts as persuasive authority in interpreting ACRA, unless any particular part of Title VII affords greater coverage. Timmons v. City of Tucson, 171 Ariz. 350, 830 P.2d 871, 875 (App.1991). No court has yet to apply ACRA in the context of same-sex sexual harassment, however, a substantial number of federal courts have ruled on whether Title VII covers such harassment. Plaintiff and Defendant agree that the Court's inquiry whether same-sex sexual harassment is actionable under ACRA is guided by Title VII jurisprudence.

A. Analysis of the Plain Language of Title VII

The plain language of Title VII does not preclude a same-sex sexual harassment claim for relief because Title VII does not expressly require that sex discrimination involve members of the opposite sex. Title VII broadly prohibits "employers" (whether male or female) from discriminating against "individual" employees whether male or female on the basis of the latter's "sex" or gender.² Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir.1996). There is no indication within the language of the statute that Title VII actions are limited to the context of opposite gender. The only possible source for a condition that the harasser and victim be of different sexes is Title VII's causal requirement that the discrimination occurs "because of" the employee's sex. Id.

In the traditional sexual harassment case, in which a heterosexual makes an unwelcome advance toward a coworker of the opposite sex, courts have agreed that the harassment occurred "because of sex." This Court believes causation should similarly apply when a homosexual makes unwanted sexual advances to a same-sex coworker. Under Title VII, an employee is sexually harassed or discriminated against "because of" his or her sex if, "but-for" the employee's sex, he or she would not have been the victim of the discrimination.³ See Price Waterhouse v. Hopkins, supra; Bundy v. Jackson, 641 F.2d 934, 942 n. 7 (D.C.Cir.1981) ("[I]n each instance the question is one of but-for causation: would the complaining employee have suffered the harassment had he or she been of a different gender?"). The language of "but-for" causation is not gender specific. If Plaintiff sets forth facts that she was harassed "but-for" her gender, then her claim is viable.

The guidelines of the Equal Employment Opportunity Commission ("EEOC") support the proposition that same-sex harassment may satisfy "but-for" causation.⁴ The EEOC Compliance Manual states in pertinent part:

The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victim's sex (not on the victim's sexual preference) and the harasser does not treat employees of the same sex the same way.

Example 1 — If a male supervisor of male and female employees makes unwelcome sexual advances toward a male employee because the employee is male but does not make similar advances towards female employees, then the male supervisor's conduct may constitute sexual harassment since the disparate treatment is based on the male employee's sex.

EEOC Compliance Manual (CCH) § 615.2(b)(3) (1987).

The Sixth Circuit in Yeary and the Eleventh Circuit in Fredette have applied the EEOC provision and reasoned, "when a male sexually propositions another male because of sexual attraction, there can be little question that the behavior is a form of harassment that occurs because the propositioned male is a male — that is, `because of sex.'" Fredette, 112 F.3d at 1506 (quoting Yeary, 107 F.3d at 448). The Court finds this reasoning convincing. Because Title VII protections apply to both men and women, see Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 681-82, 103 S.Ct. 2622, 2630, 77 L.Ed.2d 89 (1983), this principle of causation equally applies to Plaintiff's claim. A homosexual female's unwanted advances towards another female occur "because of sex." Plaintiff alleges her manager, DiPaola, made sexual advances towards her. Hence, Plaintiff may satisfy causation by proving her manager treated men and women differently, and that but-for Plaintiff's gender, Plaintiff was subject to sexual harassment.

B. Legislative Intent

The legislative history of Title VII provides little guidance regarding the interpretation of the Act's prohibition against discrimination based on sex. Meritor, 477 U.S. at 64, 106 S.Ct. at 2404. The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. 110 Cong. Rec. 2577-84 (1964). Defendant claims that Congress's principal purpose of including the word "sex" in Title VII was to "do some good for the minority sex."⁵ 110 Cong. Rec. 2577 (1964). Such a purpose, however, would be in harmony with protecting females in the workplace from sexual harassment by other females. Even if Congress had primarily focused on discrimination against women by male-dominated employers in passing Title VII, the Court notes the statute has not been so limited by the case law. Any original focus on discrimination against women has not precluded the courts from extending Title VII to protect men. Newport News Ship-building, 462 U.S. at 681-82, 103 S.Ct. at 2630 ("Male as well as female employees are protected against discrimination [under Title VII]."). Similarly, the Court concludes the...