Petition for Writ of Certiorari — Dela Rosa v. Scottsdale Memorial Health Systems, Inc.

Supreme Court, U.S.

FILED

971862 MAR 2 1998

egfice OF THE CLERK

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1997

Lionel Dela Rosa, Petitioner,

V.

Scottsdale Memorial Health Systems, Inc., et al., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Lionel Dela Rosa

Petitioner Pro Per

Of Counsel: P.O. Box 20306

Heath Oran Dooley, Esq. Mesa, AZ 85277

P.O. Box 20306 (602) 807-5500

Mesa, AZ 85277

(602) 807-5500

October 1997

QUESTIONS PRESENTED

1) Whether the Petitioner, as the non-moving party, was entitled

to have the District Court and the Ninth Circuit view the evidence

and inferences that may have been drawn from the evidence set forth

in connection with Respondent’s motion for summary judgment filed

in the District Court in the light most favorable to Petitioner and thus

avoid summa:y judgment.

2) Whether the Petitioner, who established in the District Court

a prima facie case of hostile environment and disparate treatment race

and age discrimination and submitted additional evidence showing he

was subject to a racial joke, intentional physical injury from a

chemical burn, poisoning, workplace sabotage, and personal property

damage created an inference of discriminatory animus sufficient to

avoid summary judgment on his discrimination claims.

3) Whether the Petitioner, who established in the District Court

that he took protected activity (by filing an internal grievance of race

discrimination) and subsequently received an adverse performance

appraisal was illegally retaliated against and therefore should survive

summary judgment on his retaliation claim.

4) Whether the Petitioner was entitled to survive summary

judgment on his state law claims in light of the facts and evidence

submitted in connection with Respondents’ motion for summary

judgment.

= BEST AVAILABLE COPY

ia aaa 6

LIST OF PARTIES

Lionel Dela Rosa, Petitioner.

Scottsdale Memorial Health Systems, Inc., An Anzona

Corporation; Michael Johnston and Jane Doe Johnston, husband and

wife; Todd Lyon and Jane Doe Lyon, husband and wife,

Respondents.

il

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TABLE OF CONTENTS

Page

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STATUTORY PROVISION INVOLVED .......000....cceectees 2

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RELEVANT UNDERLYING FACTS ....0........cccccccscsessssteteteteeneees 4

JURISDICTION IN THE DISTRICT COURT ...........ccccccteees 10

REASONS FOR GRANTING THE PETITION ...............:::00 1]

QUESTIONS PRESENTED

I. Whether the Petitioner, as the non-moving party,

was entitled to have the District Court and the Ninth

Circuit view the evidence and inferences that may

have been drawn from the evidence set forth in

connection with Respondent’s motion for summary

judgment filed in the District Court in the light most

favorable to Petitioner and thus avoid summary

accuses afasambns bastssbuanshondnncueveoi 12

II. Whether the Petitioner, who established in the

District Court a prima facie case of hostile

environment and disparate treatment race and age

discrimination and submitted additional evidence

showing he was subject to a racial joke, intentional

physical injury from a chemical burn, poisoning,

workplace sabotage, and personal property damage

created an inference of discriminatory animus

sufficient to avoid summary judgment on his

CI CINE. i isi 13

Whether the Petitioner, who established in the

District Court that he took protected activity (by

filing an internal grievance of race discrimination)

and subsequently received an adverse performance

appraisal was illegally retaliated against and

therefore should survive summary judgment on his

PURI SO i ak 17

Whether the Petitioner was entitled to survive

summary judgment on his state law claims in light

of the facta and evidence submitted in connection

with Respondents’ motion for summary

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TABLE OF AUTHORITIES

Cases Page

Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978)............ 13

Harris v. Forklift Systems, Inc., 510 U.S. 17 at 23 (1993)............. 16

United States v. Williams, 994 F.2d 646 (9th Cir. 1993).........0005 12

Statutes and Rules

BE EEG. SR icsiiiidsienitiineccsiclGiernwaieeagueie 17

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

Lionel Dela Rosa, Petitioner,

Vv.

Scottsdale Memorial Health Systems, Inc., et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lionel Dela Rosa respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS BELOW

The memorandum opinion of the court of appeals (App.,

infra, A-\—A-8 ) was designated as “not appropriate for publication”.

The opinion of the district court (App., infra, B-1--B-18) is

unreported.

JURISDICTION

The Court of appeals entered its judgment on December 2,

l

1997. (App., infra, A-1). The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. §2000e

STATEMENT

Petitioner, Lionel Dela Rosa, a sixty-one year old Hispanic

male, on July 29, 1994, filed a nine count complaint against his

employer at that time, Respondent Scottsdale Memorial Health

Systems Inc. (hereinafter “SMH”’), against his immediate supervisor,

espondent Michael Johnston, ef ux.; and against a coworker,

Respondent Todd Lyon, et ux. Mr. Dela Rosa’s complaint alleged

race discrimination; age discrimination; retaliation; breach of

contract; breach of the covenant of good faith and fair dealing;

battery; interference with contract; negligent supervision, and

intentional infliction of emotional distress. Respondents removed the

case to federal district court pursuant to 42 U.S.C. §1981, based

upon the alleged violations of Title VII of the 1964 Civil Right Act

(42 U.S.C. §2000-e), as amended (42 U.S.C §1981); and pursuant to

29 U.S.C. §633(b), based upon the alleged violations of the Age

Discrimination in Employment Act.

On August 12, 1994, after Mr. Dela Rosa was allegedly

constructively discharged from his employment with Respondent

SMH, he amended his complaint to include a wrongful constructive

discharge claim.

On December 11, 1995, Respondents contemporaneous with

filing their motion for summary judgment, filed a motion to exceed

page limitations by an additional eight pages for their summary

judgment motion as they were seeking dismissal of all ten of

Petitioner’s claims and argued that they could not meaningfully

respond without exceeding the fifteen page limit. The District Court

granted Respondents’ motion to exceed page limitations by eight

pages.

Mr. Dela Rosa argued that he could not meaningfully

respond to Respondent’s twenty-three page motion for summary

judgment without exceeding the fifteen page limit and moved the

District Court to exceed page limits by the same number of pages as

Appellee/Defendants, but the District Court allowed Mr. Dela Rosa

only an additional three pages for his response.

On September 20, 1996, the District Court granted

Respondents’ motion for summary judgment in its entirety and

dismissed all ten of Mr. Dela Rosa’s claims. On October 18, 1996,

a timely Notice of Appeal to the United States Court of Appeals For

the Ninth Circuit of the District Court’s Order granting summary

judgment to Respondents and dismissing Mr. Dela Rosa’s case was

filed by Mr. Dela Rosa.

After the appeal was fully briefed and argued, in it’s decision

filed December 2, 1997, the United States Court of Appeals For the

Ninth Circuit affirmed the District Court’s order granting summary

judgment to Respondents.

On March 2, 1998, a timely Petition for a Writ of Certiorari

to the United States Supreme Court was filed by Mr. Dela Rosa.

RELEVANT UNDERLYING FACTS

Petitioner Lionel Dela Rosa is a 61 year old Hispanic man

who served this country during the Vietnam War and is a decorated

combat veteran, having been awarded the Bronze Star for exhibiting

uncommon valor while under enemy fire. From April 9, 1990 to

August 10, 1994, Mr. Dela Rosa worked as a Biomedical

Engineering Technician II ( hereinafter “BMET II’) at Respondent

Scottsdale Memorial Hospital (hereinafter “SMH”’).

As a BMET II FOR SMH, Mr. Dela Rosa received

exemplary performance appraisals for his job performance on May >

9, 1990; June 26, 1991; and June 25, 1992. Despite his excellent

work performance, Mr. Dela Rosa became the victim of

discrimination and racially and/or age motivated harassment while

working at SMH. The incidents of discrimination and racially

motivated practical jokes began in 1992 when Mr. Dela Rosa’s white

coworker, Respondent Todd Lyon, intentionally inflicted a chemical

burn on Mr. Dela Rosa by pressing a freon type canister against Mr.

Dela Rosa’s back and releasing its contents. This chemical burn

required Mr. Dela Rosa to seek emergency room treatment, and

caused a permanent scar on Mr. Dela Rosa’s back. Shortly following

the chemical burn incident, Mr. Dela Rosa discovered that bottles of

hazardous chemicals located above his work bench had been

deliberately glued to the shelf. When Mr. Dela Rosa reached up to

take a bottle of Simple Green from the shelf, the bottom fell out of

the bottle due to a chemical reaction between the glue and the plastic

bottle. As a result, this powerful cleaning solvent spilled on Mr. Dela

Rosa’s workbench, the equipment he was working on, and the floor.

Later in 1992, while Mr. Dela Rosa was away from his work bench,

someone in the work area contaminated the coffee in his cup with an

unknown substance. Before realizing his coffee had been poisoned, '

Mr. Dela Rosa swallowed a large sip of coffee which immediately

made his throat burn and caused him to vomit. Mr. Dela Rosa then

smelled the coffee, and noted that the foreign substance which

contaminated his coffee had an odor similar to garbage. Since

drinking the contaminated coffee, Mr. Dela Rosa has experienced

continual gastro-intestinal problems resulting in frequent reflux :

reactions.

Dunng 1993, a more obvious pattern of discrimination began

to develop and increase in frequency. In January 1993, Mr. Dela

Rosa’s workmanship and technical proficiency was criticized in front

of other coworkers by Respondent Todd Lyon, a white younger man,

when Mr. Lyon referred to Mr. Dela Rosa as “a stupid idiot.” Shortly

thereafter, another incident occurred in front of coworkers when a

white coworker, encouraged by Mr. Dela Rosa’s immediate

;

;

supervisor, Respondent Michael Johnston, told a racist joke which

disparaged and advocated the killing of Hispanics.' After telling the

joke, Respondent Johnston and the joke-telling employee looked at

Mr. Dela Rosa to see his reaction and then left giggling.

Other incidents that occurred during 1993 and 1994 included

Mr. Dela Rosa discovering that his work bench had been loosened

from its supports so that it would fall when anything of substantial

weight was placed upon it;’ in SMH’s parking lot, Mr. Dela Rosa

1. The racial joke went as follows: There was an Arizonan, a

Russian, and a Mexican in the desert. The Russian took out a

bottle of vodka and took a big swig, then threw the bottle

into the air and shot it. The Arizonan asked why he did that,

and the Russian replied, “we have so much vodka in Russia

we just take one swig and get rid of the bottle.” Then the

Mexican took out a bottle of tequila, took a big swig and

threw the bottle into the air and shot it. When the Arizonan

asked him why he did that, the Mexican replied, “we have so

much tequila in Mexico we just take one swig and get rid of

the bottle.” The Arizonan then took out a bottle of whiskey,

took a big swig and shot the Mexican. When the Russian

asked him why he did that, the Arizonan replied, “We have

too many Mexicans in Arizona and we would rather shoot

the Mexicans than waste the whiskey.”

2. Mr. Dela Rosa narrowly escaped serious injury when his

work bench gave way under light pressure. Had something

7

ee ee

found on numerous occasions wooden golf tees propped under his

tires in such a manner that they could have punctured his tires had he

not discovered them before he drove over them; and on other

occasions, Mr.. Dela Rosa found that someone had deliberately

deflated his car’s tires.

Despite the fact that Mr. Dela Rosa repeatedly reported these

incident of harassment and discrimination to Respondent SMH, no

remedial or disciplinary action was taken against the perpetrators.

The Respondent SMH did not investigate or reprimand anyone

related to the incidents of harassment and discrimination. Instead,

Respondent SMH chose to counsel Mr. Dela Rosa for an alleged lack

of interpersonal communication skills. On June 1, 1993, following

a hostile confrontation between himself and Respondent Todd Lyon,

Mr. Dela Rosa was prompted to file an internal grievance with the

Respondent SMH in which Mr. Dela Rosa made allegations that he

was being discriminated against and harassed because of his race and

age.. In that incident, Respondent Lyon attempted to embarrass Mr.

heavy been placed on the bench, it would have certainly

collapsed and could have seriously injured Mr. Dela Rosa or

others in the area.

Dela Rosa’s professional reputation by contacting a technician from

another hospital to describe Mr. Dela Rosa’s difficulty in repairing

some equipment. When Mr. Dela Rosa objected, the much younger

- Respondent Lyon became threatening. The grievance was filed by

Mr. Dela Rosa when his supervisor , Respondent Michael Johnston,

issued a written performance warning only to Mr. Dela Rosa, and did

not give Respondent Lyon a reprimand or verbal counseling. This

grievance by Mr. Dela Rosa put Respondent SMH on notice that

there had occurred and was ongoing race and age discrimination in

the workplace.

The grievance eventually found its way to Respondent

SMH’s Director John Zolinski. Mr. Zolinski after investigating the

incident, conceded that Respondent Lyon had acted inappropriately

by embarrassing Mr. Dela Rosa on the subject occasion, but Mr.

Zolinski diminished the seriousness of the incidents of racial and age

harassment by referring to them as “horseplay”.

Still seeking redress for his complaints of discrimination, Mr.

Dela Rosa appealed the decision of the initial June 1, 1993 grievance

to Respondent SMH’s Administrator Thomas Sadvary. Mr. Sadvary

)

withdrew the written reprimand that was placed in Mr. Dela Rosa’s

file stemming from the confrontation with Respondent Lyon. Mr.

Sadvary’s decision to withdraw the reprimand was based on his

determination that Respondent Johnston had failed to conduct a

thorough investigation of the incident.

On June 30, 1993, unable to get satisfaction through SMH’s

internal grievance system, Mr. Dela Rosa filed a charge of

discrimination against Respondent SMH with the Equal Employment

Opportunity Commission (hereinafter “EEOC’). After completing

its cursory investigation, the EEOC dismissed Mr. Dela Rosa’s

charge and issued its no cause determination and right to sue letter on

April 29, 1994.

Mr. Dela Rosa filed the underlying action on July 29, 1994.

Thereafter, the harassment continued and increased and Mr. Dela

Rosa tendered his resignation on August 12, 1994 as he was unable

to take it any longer.

JURISDICTION IN THE DISTRICT COURT

The District Court of Arizona had subject matter jurisdiction

in this case pursuant to 42 U.S.C. $1981, based upon the alleged

10

violations of Title VII of the 1964 Civil Right Act, as amended; and

pursuant to 29 U.S.C. §633(b), based upon the alleged violations of

the Age Discrimination in Employment Act.

ARGUMENT

Petitioner Lionel Dela Rosa brings this Petition for Writ of

Certiorari to the United States Supreme Court for review of the

United States Court of Appeals For the Ninth Circuit’s decision

affirming the District Court of Anzona’s order granting summary

judgment for Respondents and dismissing Mr. Dela Rosa’s complaint

in its entirety. The basis for this Writ is two-fold: The Ninth Circuit

has entered a decision in conflict with the decisions of another United

States court of appeal, and the United States Supreme Court; and has

so far departed from the accepted and usual course of judicial

proceeding and/or sanctioned such a departure by the District Court

of Arizona, as to call for an exercise of this Court’s supervisory

power.

REASONS FOR GRANTING THE PETITION

While this Court has recently addressed the issues of what

constitutes an abusive and harassing “hostile environment” with

ll

respect to sexual harassment and sexual discrimination claims,’ more

guidance is needed at the appellate and tnal court level as to what

constitutes an abusive and harassing environment with respect to a

racially hostile environment. This case would provide a means of

giving that much needed guidance.

I. Whether the Petitioner, as the non-moving party, was

entitled to have the District Court and the Ninth Circuit view the

evidence and inferences that may have been drawn from the

evidence set forth in connection with Respondent’s motion for

summary judgment filed in the District Court in the light most

favorable to Petitioner and thus avoid summary judgment.

A court ruling on a motion for summary judgment should

view the evidence and inferences that may be drawn from the

evidence in the light most favorable to the nonmoving party. United

States v. Williams, 994 F.2d 646 (9th Cir. 1993) (emphasis added).

Thus, the Ninth Circuit in its de novo review of the district court’s

decision on summary judgment should have determined whether any

genuine issues of material fact existed, and whether the lower court

correctly applied the substantive law. Jd.

However, in their opinions, neither the District Court, nor the

3. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

12

Ninth Circuit seemed to make any favorable inferences of the

evidence to inure to the benefit of Mr. Dela Rosa. Quite the contrary,

in their opinions concerning the appropriateness of summary

judgment, whenever a genuine issue of material fact existed, the

District Court and Ninth Circuit viewed the evidence in a light most

favorable to the moving party - Respondent, as will be more fully

discussed in connection with the issues set forth, infra.

Il. Whether the Petitioner, who established in the District

Court a prima facie case of hostile environment and disparate

treatment race and age discrimination and submitted additional

evidence showing he was subject to a disparaging racial joke,

intentional physical injury in the form of a chemical burn,

poisoning, workplace sabotage, and personal property damage

created an inference of discriminatory animus sufficient to avoid

summary judgment on his discrimination claims.

This Court in Furnco Construction Corp. v. Waters, held that

when a plaintiff establishes a Title VII prima facie case of

discrimination, although it is not the equivalent of a factual finding

of discrimination, it is proof of actions taken by the employer from

which discriminatory animus can be inferred because experience has

proved that in the absence of any other explanation it is more likely

than not those actions were based on impermissible considerations.

438 US. 567 at 569 (1978). This Court further elucidated its holding

13

in Furnco when it explained, we know from experience that more

often than not people do not act in a totally arbitrary manner, without

any underlying reasons, especially in a business setting. Jd. at 577.

Thus, when all legitimate reasons for rejecting an applicant have been

eliminated as possible reasons for the employer’s actions, it is more

likely than not the employer, who we generally assume acts only with

some reason, based his decision on an impermissible consideration

such as race. Id.

In the instant case, both the district court and Ninth Circuit

failed to give any favorable inferences to Mr. Dela Rosa where

material facts were in dispute, and instead chose to accept the

Respondent’s proffered non-discriminatory explanation and reject the

proffered evidence of pretext provided by Mr. Dela Rosa. Despite

the fact that the incidents of harassment against Mr. Dela Rosa

continued unabated throughout a period of time encompassing over

two years, the district Court and Ninth Circuit chose to accept the

absurd and implausible explanation from Respondent that it was all

done for the sake of “horseplay”. While it is true that the only

incident that can be unequivocally pointed to as overtly indicating a

14

racially discriminatory animus is the racially disparaging joke, it

cannot be disputed that Mr. Dela Rosa, a member of a protected class,

was the only “victim” in that work area singled out to be physically

injured, humiliated, poisoned, his workbench sabotaged, and personal

property damaged. The combination of the overt discriminatory

animus in the racial joke combined with the fact that Respondent was

singled out as the object of other harassing activities would arguably

taint his entire treatment with the same discriminatory animus evident

in the racial joke. The district court and Ninth Circuit, seem to be

indicating that it is acceptable behavior to harass and discriminate

against a member of a protected class as long as you don’t expressly

communicate to the individual you’re harassing that you’re doing so

because he’s a member of a protected class. This reasoning and

rationale by the district court and Ninth Circuit undermines the very

purpose of Title VII to prevent such discrimination and harassment

in the workplace.

Not only is the reasoning and rationale of the district court

and Ninth Circuit in disagreement with the very intent of Title VII to

eradicate workplace discrimination, but it is contrary to this Court’s

15

holding in Harris v. Forklift Systems, Inc., where this Court stated:

“But we can say that whether an environment is

‘hostile’ or ‘abusive’ can be determined only by

looking at all the circumstances. These may include

the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an

employee’s work performance.”

Harris v. Forklift Systems, Inc., 510 U.S. 17 at 23 (1993)

In this case, all of the Harris factors are present: the

harassment Mr. Dela Rosa was subject to was frequent, severe,

physically threatening, humiliating, offensive, and unreasonably

interfered with his ability to perform his work. Yet, the district court

and Ninth Circuit chose to ignore the discriminatory animus which

was demonstrated by the totality of the circumstances and evidenced

by the overt racially discriminatory animus inherent in the racially

disparaging joke and the fact that Mr. Dela Rosa, a member of a

protected class, was singled out to be the object of the harassment.

In this way, the district court and the Ninth Circuit erred in it’s

analysis of whether their were undisputed material facts which would

be sufficient to deny Respondent’s motion for summary judgment.

16

Jee eee a

SA SBS

POE MITE LEARNT

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Ill. Whether the Petitioner, who established in the District

Court that he took protected activity (by filing an internal

grievance of race discrimination) and subsequently received an

adverse performance appraisal was illegally retaliated against

and therefore should survive summary judgment on_ his

retaliation claim.

Title VII prohibits an employer from retaliating against an

employee for participating in an EEOC investigation or for opposing

unlawful discrimination by the employer. 42 U.S.C. §2000e-3. Here,

Mr. Dela Rosa has continually asserted that in addition to his June 30,

1993 charge filed with the EEOC, Mr. Dela Rosa “opposed unlawful

discrimination” by filing his internal grievance on June 1, 1993

where he alleged that he had been subject to racial and age

discrimination. Both the district court and the Ninth Circuit have

chosen to ignore this argument despite the fact that it has been

present in Petitioner’s response to the motion for summary judgment

from the outset. Therefore, the decisions by the district court and

Ninth Circuit are in error for this reason and should be reversed

Mr. Dela Rosa’s filing an internal grievance wherein he

raised the issue of racial discrimination, put the Respondent employer

on notice and provided knowledge of the racial discrimination claim

to Respondent Johston, Dela Rosa’a supervisor, who then retaliated

17

against Dela Rosa in his next evaluation which was prepared only

weeks after the grievance. This is overt evidence of illegal retaliation

and has been ignored by both the district court and Ninth Circuit.

IV. Whether the Petitioner was entitled to survive summary

judgment on his state law claims in light of the facts and evidence

submitted in connection with Respondents’ motion for summary

judgment. -

Petitioner will concede that the viability of his state law

claims are interrelated and dependent upon his discrimination claims,

as they are pendent. Therefore, as the Court decides on the merits of

Petitioner’s discrimination and retaliation claims should determine

the viability of his state law claims as well, and therefore,

incorporates by this reference the arguments and authority set forth

in those respective sections of this argument, supra.

CONCLUSION

Based on the arguments and authority set forth supra,

Petitioner respectfully requests the Court grant this Petition for a Writ

of Certiorari.

18

Respectfully submitted, this 15th day of May, 1998.

eo ogi

(= Dela Rosa

Petitioner, pro per

Of Counsel: P.O. Box 20306

Heath Oran Dooley, Esq. Mesa, AZ 85277

P.O. Box 20306 (602) 807-5500

Mesa, AZ 85277

(602) 807-5500

October 1997

19

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIONEL DELA ROSA, No. 96-17034

Plaintiff-A ppellant, D.C. No. CV-94-01745-RGS

MEMORANDUM*

)

)

)

)

v. )

)

SCOTTSDALE MEMORIAL |)

HEALTH SYSTEMS, INC, an_ )

Arizona corporation; MICHAEL )

JOHNSTON, husband; JANE _)

DOE JOHNSTON, wife; TODD )

LYON, husband; JANE DOE +)

LYON, wife; JOHN DOES I - X:)

JANE DOES I - X, )

)

Defendants-Appellees. )

)

Appeal from the United States District Court

for the District of Arizona Roger G. Strand, District Judge, Presiding

Argued and Submitted November 4, 1997

San Francisco, California

Before: CHOY, ALARCON, and T.G. NELSON, Circuit Judges.

Lionel Dele Rosa appeals the district court’s grant of summary

judgment in favor of Scottsdale Memorial Health Systems, Inc.,

A-1

Michael Johnston, and Todd Lyon in Dela Rosa’s action alleging

federal claims of Title VII race discrimination, age discrimination, and

retaliation, and several state law claims. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

MOTION TO EXCEED PAGE LIMITS

We review the district court’s compliance with local rules for

an abuse of discretion. Hinton vy. NMI Pac. Enters. ,5F .3d391 94

(9th Cir. 1993). The district court did not abuse its discretion in

granting Dela Rosa only three additional pages for his reply to the

appellees’ summary judgment motion. There is nothing substantive in

Dela Rosa’s initial twenty-four page reply that was subsequently

excised from his eighteen-page reply, as he simply changed the font in

order to reduce the number of pages.

SUMMARY JUDGMENT

We review a grant of summary judgment de novo. Forsyth v.

Humana, Inc. , 114 F. 3d 1467, 1474 (9th Cir. 1997), petition for cert.

filed , 66 U.S.L.W. 3204 (U.S. Sept. 17, 1997) (No. 97-504).

Summary judgment for the appellees on all of Dela Rosa’s claims was

appropniate.

in

A ‘le Racial Envi

Our sexual harassment cases provide guidance for determining

the required elements for an analogous racial harassment claim. The

elements necessary to create a sexual harassment claim are contained in

Steiner V. Showboat Operating Co., 25 F. 3d 1459 (9th Cir. 1994):

In order to survive Showboat’s summary judgment motion,

Steiner must show that there are genuine factual disputes as to

(1) whether a reasonable woman would find that [her

supervisor's] conduct was “sufficiently severe or pervasive to

alter the conditions of employment and create an abusive

working environment,” and (2) whether Showboat, once

apprised of [the supervisor’s] behavior, failed to take adequate

remedial and disciplinary action.

Id. At 1462-63 (quoting Ellison v. Brady, 924 F.2d 872, 879, 881-83

(9th Cir. 1991)). Put another way, we have held that to prove the

existence of a hostile work environment in the context of a sexual

harassment claim, the employee must show that “1) she was subjected

to verbal or physical conduct of a sexual nature, 2) this conduct was

unwelcome, and 3) the conduct was sufficiently severe or pervasive to

' A liberal construction of Dela Rosa’s complaint would divide his

Title VII discrimination claims into separate claims of a hostile

working environment and disparate treatment. Because the district

court and the parties divide them this way, we will follow the same

structure inj this memorandum disposition.

A-3

alter the conditions of the victim’s employment and create an abusive

working environment.” Fuller v. City of Oakland, 47 F.3d 1522, 1527

(9th Cir. 1995) (quotation and citations omitted). By substituting

“racial” at the appropriate places, these cases adequately describe the

elements necessary to create an analogue racial harassment ciaim.

The problem with Dela Rosa’s racial harassment claim is that

almost all of the incidents he cites as creating a hostile work

environment were not racial in nature. The only incident that was

racially charged by its very nature was the telling of the racial joke.’

The other incidents were not racial in nature and Dela Rosa has offered

no evidence that nay other incident was motivated by racial animus.

B. Disparate Treatment

Dela Rosa alleges that he was discriminated against on the

————

————

basis of either his race or his age. The required elements to make out

On appeal, Dela Rosa points to a second racial incident where

Johnston allegedly referred to the dialysis department as the “land of

white supremacy,’ citing a single page from Dela Rosa’s deposition

(Appellant’s opening Br. at 15). We have reviewed the entire district

court record, and it is clear that this evidence was not submitted to

the district court for its review of the appellees’ summary judgment

motion. Because this evidence was not considered by the district

court, we will not consider it on appeal.

A-4

a prima facie case on either claim are substantially the same. For race

discrimination claims, the elements are taken from the Supreme Court's

opinion in McDonnell Douglas Corp. V. Green, 411 U.S. 792, 802

(1973), and consist of the following:

L. that the plaintiff belongs to a class protected by Title

VI;

2. that the plaintiff applied and was qualified for a job

for which the employer was seeking applicants;

3. that, despite being qualified, the plaintiff was

rejected [the “adverse employment action”; and

4. that, after the plaintiff's rejection, the position

remained open and the employer continued to seek

applicants from persons of comparable

qualifications.

Lowe V. City of Monrovia, 775 F.2d 998, 1005 (9th Cir. 1985) (citing

McDonnell Douglas Corp., 411 .S. at 802). For age discrimination

claims, the employee, to establish a prima facie case, must show that he:

(1) was a member of the protected class [40-70]; (2) was

performing his job in a satisfactory manner; (3) was

discharged {or subject to an “adverse employment action”)};

and (4) was replaced by a substantially younger employee

with equal or inferior qualifications.

Rose vy. Wells Fargo & Co., 902 F.2d 11417 (9th Cir. 1990).

We will assume, without deciding, that Dela Rosa has made out

a prima facie case for disparate treatment.’ As a result, Dela Rosa has

raised a presumption of discrimination by the employer. Furnco Constr.

Corp. v. Waters, 428 U.S. 567, 577 (1978). The burden then shifts to

the employer to “rebut the presumption of discrimination by articulating

a nondiscriminatory reason” for issuing the poor performance

evaluation. Lowe, 775 F.2d at 1007. The employer need only ‘set forth

a legally sufficient explanation” for the poor evaluation. Id, See also

Wallis v. LR. Simplot Co. 26 F.3d 885, 889 (9th Cir. 1994)

(discussing same standard in age discrimination case).

In this case, the appellees sufficiently rebut the presumption of

discrimination with evidence demonstrating that Dela Rosa was not

performing certain aspects of his job satisfactorily, particularly with

regard to his interpersonal skills.

After the employer has rebutted the presumption of

discrimination, the burden shifts back to the employee, who can only

defeat summary judgment by raising a genuine factual question as to

> It is questionable whether a negative performance evaluation,

standing alone, constitutes an adverse employment action. See

Steiner, 25 F.3d at 1465.

A-6

Pe ae ee ee

whether ‘the proffered justification is merely a pretext for

discrimination.” Furnco, 438 U.S. at 578. See also Lowe, 775 F.2d at

1008 (the rebuttal “shift{s] the burden back to the plaintiff to raise a

genuine factual question as to whether the proffered reason is

pretextual”). In order to satisfy this burden, “the plaintiff need not

necessarily offer evidence beyond that offered to establish a prima facie

case.” Lowe, 775 F.2d at 1008.

Dela Rosa cannot merely rely on bare allegations of

discrimination to survive summary judgment. The question before us

is whether “a rational trier of fact could, on all the evidence, find that

the employer’s action was taken for impermissibly discriminatory

reasons.” Wallis, 26 F.3d at 889. “In response to the defendant’s offer

of nondiscriminatory reasons, the plaintiff must produce ‘specific,

substantial evidence of pretext.” Id. At 890 (quoting Steck! v.

Motorola Inc., 703 F.2d 392, 393 (9th Cir. 1983)) (emphasis added).

Evidence of pretext can be offered either directly or indirectly. Lindahl

yv. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991). Dela Rosa does

neither.

Dela Rosa baldly asserts that it is “suspicious at best” and

A-7

“absurd” to believe that Johnston’s response to the harassing incidents

was not motivated by a discriminatory intent (Appellant's Opening Br.

At 22). However, Dela Rosa needs to prove that the poor employment

evaluation (the only employment decision that could qualify as an

adverse action) was the product of a discriminatory intent. Dela Rosa’s

extensive argument that he was technically proficient at his job does not

help him satisfy this burden since the appellees have never disputed

Dela Rosa’s technical proficiency and all of the relevant evidence

indicates that Johnston himself never doubted this fact.‘ Dela Rosa’s

bare assertion that he was singled out for blame in the harassing

incidents that resulted in the tense work environment falls flat in the

face of the hospital’s evidence that all employees were repeatedly

4 Inthe summary letter accompanying the allegedly poor

employment evaluation, Johnston wrote:

Overall the quality and quantity of work you have performed

has been solid and reliable. You have continuously demonstrated you

possess an excellent knowledge and equipment background. You

have also demonstrated very good time management.

The only reasonable interpretation of this summary is that Johnston

believed that Dela Rosa was technically proficient, even skilled, in

the performance of his duties.

A-8

warned that such conduct was not acceptable. Johnston’s identification

of Dela Rosa’s need to improve his relationships with coworkers and

others did not first arise in the allegedly poor performance evaluation.

Even before his transfer to the North Hospital, his previous supervisor

had identified “communication skills” and “relationships with others”

as areas where Dela Rosa’s performance needed improvement.

Dela Rosa cannot survive summary judgment by challenging

the credibility of Johnston or the hospital’s other witnesses without

offering substantial factual evidence of a discriminatory motivation.

Lindahl, 930 F.2d at 1437-38; Steck], 703 F.2d at 393. As in Wallis,

Dela Rosa ‘has simply showed that an adverse employment decision

was made under conditions that permitted him to invoke a McDonnell

Douglas type of presumption of unlawful discrimination. That

evidence . . . is not enough now that [the Hospital] has offered a

nondiscriminatory explanation, and nothing in [Dela Rosa’s] evidence

controverts it.” Wallis, 26 F.3d at 892.

C. Retaliation

“In a retaliation case, the burden shifting scheme is much the

same as that in an age discrimination case.” Nidds v. Schindler

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Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (citation omitted),

cert. denied, No. 97-364, 1997 WL 561754 (U.S. Nov. 3, 1997). Proof

of a prima facie case of unlawful retaliation requires Dela Rosa to

provide evidence that:

(1) he was engaged in a protected activity;

(2) he was thereafter subjected by his emplover to an

adverse employment action: and

(3) a causal link exists between the protected activity and

Wallis, 26 F.3d at 891.

The problem with Dela Rosa’s retaliation claim arises in his

proof of the third element of the prima facie case. Johnston prepared

the allegedly poor performance evaluation on June 25, 1993. Dela Rosa

filed his EEOC charges on June 30, 1993. Because the protected

activity did not occur until after the adverse employment action, the

retaliation claim fails and summary judgment for the appellees was

appropriate.°

* We will not consider Dela Rosa’s untimely argument that the internal

grievance he filed with the hospital on June 1, 1993, constitutes the

protected activity. This theory is new on appeal, is not contained in Dela

Rosa’s complaint, and was not raised before the district court.

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D. The State Claims

Summary judgment for the appellees was also appropriate on

Dela Rosa’s state claims. As we concluded above, Dela Rosa has

failed to provide evidence that he was subject to unlawful

. discrimination or an environment of racial harassment, that any of the

appellees acted with a discriminatory intent, or that the hospital's

} remedial response to Dela Rosa’s complaints was inadequate or

pretextual to a discriminatory motivation. Because all of Dela

Rosa’s state claims require evidence of one or more of these

elements, the district court properly concluded that none of them

survive summary judgment.

AFFIRMED.

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A-11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

LIONEL DELA ROSA,

Plaintiff, CIV 94-1745-PHX-RGS

VS. ORDER

SCOTTSDALE MEMORIAL

HEALTH SYSTEMS, INC.,

et al.,

Defendants

le ee ee ee ee ee ee

Factual Background

Plaintiff Lionel Dela Rosa was employed as a Biomedical

Engineering Technician I] (“BMET”) with Scottsdale Memorial

Health Systems, Inc. from April 9, 1990 to August 10, 1994, the date

he terminated his employment. Plaintiff claims that he has been

discharged because of his national origin, Hispanic, and his age, over

40.

Plaintiff specifically alleges various incidents as supporting

his claim of disparate treatment under Title VII. Defendants assert

that plaintiff had a continuing pattern of performance problems from

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an Rely en

1990 including numerous complaints by coworkers of plaintiff's

disruptive éffect on his co-worker and their work environment, that

there is no evidence of unlawful discriminatory animus, and with

respect to the alleged incidents, action in accordance with hospital

policy was taken as soon as possible to correct the situation.

Plaintiff asserts claims for: 1. Hostile environment based on

age and race, 2. Disparate treatment based on age and race; 3.

Retaliation; 4. Breach of contract; 5. Breach of covenant of good

faith and fair dealing, 6. Battery; 7. Interference with contract; 8.

Negligent supervision; 9. Intentional infliction of emotional distress;

and 10. Constructive discharge. Defendants seek summary judgment

on all plaintiff's claus.

Summary Judgment Standard

In evaluating a summary judgment motion, the inquiry is

whether, with respect to amy dispositive issue, the pleading and

supporting materials show there is no genuine issue of material fact,

and if not, whether viewing the evidence and inferences which may

be drawn therefrom in a light most favorable to the non-moving

party, the moving party is entitled to judgment as a matter of law.

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Fed. R. Civ. P. 56; Califormia Architectural Building Products, Inc.

V. Franciscan Ceramics, Inc,, 818 F.2d 1466, 122468 (9th Cir. 1987),

cert. den., 484 U.S. 1006, 108 S. Ct. 698 (1988).

The moving party must produce evidence establishing the

absence of a genuine issue of material fact. Celotex Corp. V. Catrett.

477 US. 317, 106 S. Ct. 2548, 2553 (1986). The absence of a

genuine issue of material fact may be demonstrated by pointing out

to the district court that “there is an absence of evidence to support

the nonmoving party’s case” on an issue where the nonmoving party

bears the burden of proof. Id, at 2554. Moreover, at the summary

judgment stage, the court’s function is not to weigh the evidence and

determine the truth of the matter, but merely to determine whether

there is a genuine issue for trial. Anderson v. Liberty Lobby. Inc...

477 US. 242, 106 S. Ct. 2505, 2511 (1986).

If the non-moving party will bear the burden of proof at trial

as to any element essential to its case, that party can withstand a

motion for summary judgment only by making a showing sufficient

to establish a genuine issue of fact regarding that element and a

showing that the dispute properly may be resolved only by the fact

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finder because it could reasonably be resolved in favor of either

party. Celotex Corp, 477 US. at 321, 106 S. Ct. At 2552-53;

Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.

In order to make such a showing, the party opposing the

motion must present specific facts in support of its contentions and

must support these facts by proper evidentiary material, which when

coupled with undisputed background and contextual facts, show that

the fact-finder could reasonably find in his favor; the non-moving

party cannot merely rest on his pleadings. Fed. R. Civ. P. 56 (e). See

Also LW. Elec. Service, Inc. V. Pacific Elec, Contractors Ass’n, 809

F.2d 626, 631 (9th Cir. 1987) (citations omitted). Moreover, where

the factual context makes the non-moving party’s claim implausible,

that party must come forward with evidence even more persuasive

than would otherwise be necessary to show that there is a genuine

issue for trial. California Building Products, 818 F.2d at 1468 (citing

Matsushita Elec. Indus. Co, V. Zenith Radio Corp,, 475 U.S. 574,

586, 106 S. Ct. 1348, 1356 (1986).

Title Vi

The Unites States Supreme Court in St Mary’s Honor Center

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V. Hicks, 113 S. Ct. 2742 (1993), clarified the order and allocation

of proof required to show discrimination under Title VII. First a

plaintiff must show a prima facie case of discrimination by showing

that (1) he belongs to a protected group; (2) he applied and qualified

for a job in which the employer was seeking applicants; (3) despite

his qualifications, he was rejected; and (4) the employer hired

someone else outside of the protected group. [d. At 2747 (citing

McDonnell Douglas Corp, V. Green, 411 U.S. 792, 802 (1973); see

also Hughes v. Derwinski, 967 F.2d 1168, 1171 (1992). Second,

upon proper showing of a prima facie case, the employer must rebut

by producing evidence that the adverse employment action was for

a legitimate non-discriminatory reason. Hicks, 113 U.S. at 2747.

The employer must clearly set forth reasons for its actions, “which if

believed by the trier of fact would support a finding that unlawful

discrimination was not the cause of the employment action.” [d

Third, if the employer meet its burden of production, plaintiff must

prove that the employer’s articulated reason was a pretext for

imtentional discrimination in violation of Title VII. Id. Thus, plaintiff

must show both that the reason given is false and that discrimination

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is the real reason. Id. At 2752. Summary judgment is appropriate

where a plaintiff's evidence to refute a defendant’s legitimate

explanation is totally lacking, even though the plaintiff may have

established a prima facie case. Wallis v. JR. Simplot Co,, 26 F.3d

885, 890 (9th Cir. 1994). In other words, plaintiff must produce a

genuine issue of material fact as to pretext to avoid summary

judgment. Id. (Citing Steckly vy. Motorola Inc., 703 F.2d 392, 393

(9th Cir. 1983).

1. Hostile Environment Claim

In order to prevail on a hostile environment claim, plaintiff

must establish that he was subjected to a hostile environment

sufficiently severe and pervasive to alter his working conditions and

that the hostility was based on his age or national origin. Plaintiff's

Complaint sets forth several incidents as contributing to the alleged

hostile environment.

Plaintiff claims that a coworker, defendant Lyon, sprayed

plaintiff on the back with Freon from an aerosol can. Two other

coworkers, neither of whom was over 40 or Hispanic, were sprayed

with the Freon at the same time as plaintiff was by Lyon.

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Plaintiff's bottle of Simple Green, a cleaning agent, was

stuck to his work shelf. When plaintiff attempted to pick up the

bottle, it broke and the Simple green spilled on plaintiff. It remains

uncertain whether the bottle was actually glued to the shelf. Further,

a culprit for the alleged incident has never been named by anyone.

Defendant Johnston, however, cleaned the area himself and instructed

the work group to refrain from horseplay if the gluing had been

intentional. Defendants also submit an affidavit that states that

similar practical jokes occur in the work areas from time to time but

that the hospital acts to keep such occurrences low.

Plaintiff complains that in October 1992, his coffee was

tampered with but that he did not report the incident until July 1993

to the hospital. Neither a substance nor a perpetrator has been

identified.

Plaintiff contends that someone replaced shipping caps on a

new pump he was installing which prevented the pumps from

properly operating. When it was discovered that the caps were still

in place, Johnson (plaintiff's supervisor) asked Lyon (plaintiff's

coworker), “What do you think about an individual who leaves the

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caps on a pump?” to which Lyon replied “I think he’s a stupid idiot.”

This incident was never reported to the hospital. Although the

comment may be considered inappropriate, it does not evidence any

racial or age discriminatory animus.

A nonparty coworker told a joke about a Mexican, a Russian

and an Arizona cowboy after asking if anyone wanted to hear such a

joke. Plaintiff's coworker, Diane Barraza-Mooney is also a Mexican-

American and did not raise an object to the telling of the joke.

Plaintiff, although present at the time of the inquiry, did not object to

the telling of the joke. Plaintiff did not state that he would be

offended and in fact, did not report the incident until June 1993

during a grievance process. Once the joke incident was reported to

hospital authorities, the work group was instructed that such jokes

were inappropriate.

Plaintiff contends that his workbench brackets were tampered

with making the bench loose. Nonparty coworker Dianne Barraza-

Mooney explained to Johnston and plaintiff that she had accidentally

bumped the bench with a portable piece of equipment. Plaintiff

initially disbelieved Barraza-Mooney and repeatedly struck his

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workbench with hospital equipment in order to show that the brackets

could not be loosened the way Barraza-Mooney explained.

Plaintiff s recitation in incidents fails to demonstrate that any

of the events was motivated by plaintiff's national origin or age. The

most plaintiff can do is state that he believes the incidents were

motivated by discrimination. If the ethnic joke incident was repeated

on several occasions, that situation could possibly form the basis of

a hostile environment claim; however, a single incident will not

support plaintiffs claim particularly when the employer makes an

effort to ensure that such an incident will not recur once the incident

is brought to the employer’s attention. Thus defendants are entitled

to summary judgment on plaintiff's hostile environment claim.

Disparate treatment requires a showing that the employer

treats some people less favorably than others because of their age or

national origin. Rose v. Wells Fargo & Co., 902 F.2d 502, 506 (9th

Cu. 1990). The disparate treatment theory involves intentional

discrimination. A prima facie case of intentional discrimination

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based on race, set, age or national origin “may be based either on a

presumption arising from the factors such as those set for [sic] in

McDonnell Douglas Corp. V. Green . . . or by more direct evidence

of discriminatory intent.” Wallis v_ LR. Simplot Co., 26 F.3d 885.

889 (9th Cir. 1994). Under McDonnell Douglas, a plaintiff must

show: (1) membership in a protected class: (2) that he or she applied

for and was qualified for a job; (3) that an employment decision was

made despite these qualifications; and (4) the position remained open

and the employer continued to consider applicants with comparabie

qualifications. McDonnell Douglas, 411 U.S. 802.

Plaintiff contends that he has made a prima facie case of age

and national origin discrimination. Defendants argue that plaintiff

was not performing satisfactorily. Assuming plaintiff has made a

prima facie case, the Ninth Circuit has held that:

in deciding whether an issue of fact has been created about

the credibility of the employer’s nondiscriminatory reasons,

the district court must look at the evidence supporting the

prima facie case, as well as the other evidence offered by the

plaintiff to rebut the employer’s offered reasons. And, in

those cases where the prima facie case consists of no more

than the minimum necessary to create a presumption of

discrimination under McDonnell Douglas, plaintiff has failed

to rase a tnable issue of fact.

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Wallis, 26 F.3d at 890 (quoting Sischo-Nonejad yv. Merced

Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)).

Moreover, “a plaintiff cannon defeat summary judgment simply by

making out a prima facie case.” Lindahl v. Aur France, 930 F.2d

1434, 1437 (9th Cir. 1991). Rather, plaintiff mus produce “specific,

substantial evidence of pretext.” Stecl v. Motorola, 703 F.2d 392

(9th Cir. 1983).

Here, plaintiff scarcely establishes « prima facie case and

certainly does not provide specific, substantial evidence of pretext.

Although plaintiff asserts that he believes that his age and national

origin caused certain events to occur, plaintiff has offered nothing

more than mere assertions that defendants acted with discriminatory

intent. Such assertions are insufficient and without substantial factual

evidence to preclude summary judgment.

3. Retaliation

In order to establish a prima facie case of retaliation, plaintiff

must show that he engaged in a protected activity, the employer

thereafter subjected him to adverse employment action and there was

a causal link between the two events. Jordan y. Clark, 847 F.2d

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eS eee ee eh eee eer.

1368, 1376 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). To

show the requisite causal link, the plaintiff must “present evidence

sufficient to raise the inferences that her protected activity was the

likely reason for the adverse action.” Cohen v. Meyer, 686 F.2d 793,

796 (9th Cir. 1982). Further, “[e]ssential to a causal link is evidence

that the employer was aware that the plaintiff had engaged in the

protected activity.” Id.

Here, plaintiff claims he received a low performance

evaluation from his supervisor, defendant Johnston, in retaliation for

having filed an EEOC charge alleging age and race discrimination on

June 30, 1993. However, it is undisputed that Johnston prepared

plaintiff's evaluation weeks before Johnston presented it to plaintiff

on July 9, 1993, three days before Johnston knew that plaintiff filed

the initial EEOC charge. Thus, there is no evidence of any causal

link between plaintiff's protected activity and the event he alleges as

an adverse employment action. Accordingly, defendants’ motion for

summary judgment on plaintiff's retaliation claims will be granted.

4. Breach of Contract

Plaintiff alleges that the Hospital’s policies and procedures

‘ B-12

against discrimination, harassment and retaliation constitute an

implied contract which the hospital breached by failing “ to take

corrective action once they had actual or inquiry knowledge of the

ongoing course of harassment and discrimination against Plaintiff.”

Amended Complain, £70. The Hospital’s Staff Member Guidebook

provided to plaintiff states on page |: “This information is not a

contract, the Scottsdale Memorial reserves the nght to amend, change

or discontinue, the policies, practices and benefits described at any

tume.” Defendants’ SOF, §3. Also on page 5 of the Staff Member

Guidebook, there is a similar disclaimer concerning eh Equal

Employment Opportunity policy and the Administrative Policy &

Procedure Manual: “Neither this summary, nor the Admunistrative

Policy & Procedure Manual are to be considered an employment

contract.” Defendants’ SOF, €3.

Employment is presumed to be “at-will” and that

employment can be terminated at any time by either the employee or

employer without cause in the absence of a definite term of

employment. Wagenseller v. Scottsdale Memorial Hospital, 710 P.2d

1025, 1030-31 (Ariz. 1985); Worth v. City of Flagstaff 808 P.2d

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297, 301 (Ariz. App. 1990). Although plaintiff admits that he had no

written contract or definite term of employment, he contends that he

had an implied-in-fact contract.

The implied-in-fact contract exception required proof of an

implied promise of continued employment absent just cause for

termination and may be established by oral representations, personnel

manual or memoranda. Id. Where policies or handbooks, however,

contain clear disclaimers or specific language regarding an

employees’s at-will status, there can be no claim or implied

employment contract. Chambers v. Valley National Bank of

Anizona, 721 F. Supp. 1128 (D. Ariz. 1988); Thomas v. Garrett

Corp., 744 F. Supp. 199 (D. Ariz. 1989, aff'd 904 F.2d 41.

Plaintiff contends that his at-will status was modified so that

he had an implied-in-fact contract based on certain

EEO/Affirmative Action policies that provide that defendant will not

discriminate on the basis or race, age or sex as found in the EEO

section in the Staff Member Guidebook and the EEO policy in the

Administrative Policy and procedure Handbook. An employer’s

general commitment to EEO in the policy manuals does not create an

B-14

exception to at-will employment. Lofton vy. Wyeth Laboratories, 643

F. Supp. 170, 174 (E.D. Pa. 1986) (“To liberally allow statements on

equal employment opportunity in employment manual to create

contractual obligations would invite employers to become less avid

in publicizing and implementing equal employment policies”). A

recent Arizona Court of Appeals decision rejected an employee’s

breach of contract claims based on simular disclaimers in an employee

handbook. Duncan v. St. Joseph’s Hospital and Medical Center, 903

P.2d 1107 (Anz. Ct. App. 1995). Plaintiff has not me his burden of

showing a genuine issue of material fact with respect to an essential

element of his claim, ie., an impled contract. Thus summary

judgment in defendants’ favor is required.

5 Breach of C Good Faith and Fair Deali

Arizona courts recognize an implied covenant of good faith

and fair dealing in the employment-at-will contract. Wagenseller,

710 P.2d at 1040. The covenant of good faith and fair dealing

“protects the nght of the parties to an agreement to receive the

benefits of the agreement that they have entered into.” Id. The

covenant protects an employee from a discharge based on an

B-15

employer’s desire to avoid the payment of benefits already earned by

the employee. Id. Here, there is no evidence that plaintiff failed to

receive the benefits that were a part of his employment relationship

with defendants.

6. Battery

Defendants contend that plaintiff's batter claims based on the

Freon incident is barred by the two-year statute of limitations in

A.RS. § 12-542 (1992). Defendants also correctly note that plaintiff

is unable to produce any evidence that anyone placed anything in

plaintiff's coffee. Plaintiff does not address this claims in his

response to the motion for summary judgment; therefore, plaintiff has

abandoned his battery claim.

7 Tostions laters whe

The Wagenseller court set forth the elements of the tort of

interference with contract:

(1) The existence of a valid contractual relationship or

business expectancy,

(2) knowledge of the relationship or expectancy on the part

of the interferer;

(3) intentional interference inducing or causing a breach or

termunation of the relationship or expectancy; and

B-16

(4) resultant damage to the party whose relationship or

expectancy has been disrupted.

Wagenseller. 710 P.2d at 1041, (citing Antwerp Diamond Exchange

y. Better Business Bureau of Maricopa County, 637 P.2d 730, 733

(1981) (quoting Calbom v. Knudtson, 65 Wash. 2d 157, 162-63, 396

P 2d 148, 153-54 (1964). Here, plaintiff argues that he has made a

prima facie case of interference with contract. However, at the

summary judgment state, plaintiff must do more than present a prima

facie case. Plaintiff has not presented any evidence of an implied-in-

fact contract or intent on the part of defendants Lyon and Johnston to

disrupt plaintiff's employment agreement. Nor has any evidence

been presented that defendants induced a breach of the employment

relationship between plaintiff and his employer. In the absence of

evidence to support an essential element of plaintiff's claim,

summary judgment is appropriate.

8. Negligent Supervision

Defendants contend that Anzona courts have not recognized

the tort of negligent supervision in the context of one employee suing

an employer for the actions of co-employees. Negligent supervision

in Arizona requires, however, that plaintiff prove, as an essential

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element of the case, the commission of an underlying tort. States that

do recognize negligent supervision in the co-employee ‘context

require physical injury to the plaintiff that was caused by the

employer’s negligence.

“The general rule concerning negligent .. . supervision of

employees is found in Restatement (Second) of Agency, §213:

A person conducting an activity through servants or other

agents is subject to liability for harm resulting from his

conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders of (sic) in failing

to make proper regulations; or

(b) in the employment of improper persons or

instrumentalities in work involving risk of harm to others;

© in the supervision of the activity; or

(d) in permitting, or failing to prevent, negligent or other

tortious conduct by persons, whether or not his servants or

agents, upon premises or with instrumentalities under his

control.

Comment d to the Restatement (Second) of Agency further

explains that “[IJiability results under the rule stated in this Section,

not because of the relation of the ania. but because the employer

antecedently had reason to believe than an undue risk of harm would

exist because of the employment. The employer is subject to liability

only for such harm as is within the risk.

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Plaintiff's Amended Complaint states that “Defendant

(Scottsdale memorial) breached its duty to Plaintiff when it allowed

him to be intentionally injured by defendant Lyon and further

harassed and discriminated against by defendants Lyon and Johnson,

which was foreseeable, and then took no remedial action.” Amended

complaint 495. Although plaintiff worked for Scottsdale Memorial

from 1990, the incident with Lyon that plaintiff complains of

occurred, spraying of Freon, on April 21, 1992. Plaintiff has not

offered any evidence of prior notification of such incidents to the

hospital. Once the employer was made aware of the Freon incident,

Lyons was made to apologize to plaintiff and an incident memo was

placed in Lyon’s employment file. Here, as in Kassman v. Busfield

Enterprises, 639 P.2d 353 (Anz. Ct. Appl. 1981), plaintiff has not

offered evidence of conduct prior to the event of plaintiff's alleged

Freon injury. Thus plaintiff has not met his burden of showing notice

to the employer of potential negligence by plaintiff's coworker.

With respect to alleged acts of harassment and discrimination

by defendants Lyon and Johnston, the Court has found the plaintiff

has not presented evidence of harassment based on discriminatory

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intent. In the absence of a tort related to discrimination, plaintiff's

claim of negligent supervision must fail. Mulhern vy. City of

Scottsdale, 799 P.2d 15, 18 (Ariz. Ct. App. 1990).

9. lntentional Infliction of Emotion Distress

To prevail on a claim intentional infliction of emotional

distress, plaintiff must show: (1) that defendants’ conduct could be

characterized as “extreme and outrageous”; (2) that defendants either

intended to cause or recklessly disregarded the near certainty that

emotional distress would result from their conduct; (3) that

defendants’ conduct actually cause severe emotional distress.

Lucchesi v. Frederic N. Stimmell M.D., Ltd. 149 Ariz.76, 78-79, 716

P.2d 1013, 1015-16 (1986). Even if the second and third elements

are present, the trial court must, on the first element, make a

preliminary determination whether the conduct may be considered so

outrageous and extreme so as to permit recovery. Cluff v. Farmers

Ins. Exch., 10 Ariz. App. 560, 562, 460 P.2d 666, 668 (1969): see

also Restatement (Second) of Torts § 46. That issue may only go to

the jury where “reasonable minds may differ.” Restatement, supra.

Even if a defendant’s conduct is unjustifiable, it does not necessarily

B-20

rise to the level of “atrocious” and “beyond all possible bounds of

decency” that would cause an average member of the community to

believe it was “outrageous.” Ford v. Revion. Inc.. 153 Ariz. 38, 43,

734 P.2d 580, 585 (1987); Lucchesi, 149 Ariz. at 78, 716 P.2d at

1015; see also Watts vy. Golden Age Nursing Home, 127 Anz. 255,

619 P.2d 1032 (1980) (unjustifiable delay in failing to notify wife of

husband’s terminal illness was not outrageous); Duhammel vy. Star.

133 Ariz. 558, 653 P.2d 15 (App.1982) (false accusations against

police officer not outrageous conduct justifying claim for emotional

distress).

Having reviewed the record presented in this matter, the

Court finds as a matter of law that plaintiff did not provide evidence

of outrageous and extreme conduct sufficient to survive a motion for

summary judgment.

10. Constructive Discharge

Plaintiff contends that his resignation was actually a

constructive discharge in violation of public policy, i.¢., that plaintiff

was forced to quit by intolerable conditions. “A constructive

discharge occurs when, looking at the totality of circumstances, ‘a

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reasonable person in [the employee's] position would have felt that

he was forced to quit because of intolerable and discriminatory

working conditions.” Watson v, Nationwide Ins. Co,, 823 F.2d 360,

361 (9th Cir. 1987) (quoting Satterwhite v. Smith. 744 F.2d 1380,

1381 (9th Cir. 1984)). Although the Watson court noted that the

determination whether conditions were so intolerable and

discriminatory as to justify a reasonable employee’s decision to

resign was generally left to the trier of fact, the court stated that “in

general, a single isolated instance of employment discrimination is

insufficient as a matter of law of support a finding of constructive

discharge.” Watson, 823 F.2d at 361. The court also stated that “a

plaintiff alleging a constructive discharge must show some

“aggravating factors, ‘ such as a ‘continuous patter of discriminatory

treatment.’” Jd. (Quoting Satterwhite, 744 F.2d at 1382). Here ,

plaintiff has not presented any evidence that supports his allegation

of age or requisite showing of a “continuous patter of discriminatory

treatment.” Consequently, there is no evidence that plaintiff was

subjected to an unlawfully discriminatory work environment so

intolerable that a reasonable person would have been forced to resign.

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Based on the foregoing, IT IS ORDERED granting

defendants’ motion for summary judgment. (doc. #30).

FURTHER ORDERED directing the Clerk of the Court to

enter judgment in accordance with this Order.

DATED this 20th day of September, 1996.

HONORABLE ROGER G. STRAND

U.S. DISTRICT COURT JUDGE

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