Appendix — Hi-Health Supermart Corp. v. Lansdale
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APPENDIX A— MEMORANDUM OF THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT DECIDED DECEMBER 19, 2002
United States Court of Appeals,
Ninth Circuit
D.C. No. CV-97-02555-RGS
No. 01-16017
Jill LANSDALE,
Plaintiff-Appellant,
V.
HI-HEALTH SUPERMART CORPORATION,
Defendant-Appellee.
No. 01-16018
Jill Lansdale,
Plaintiff-Appellee,
V.
Hi-Health Supermart Corporation,
Defendant-Appellant.
2a
Appendix A
Argued and Submitted Nov. 6, 2002
Decided Dec. 19, 2002
Before STAPLETON,* O’SCANNLAIN, and FERNANDEZ,
Circuit Judges.
MEMORANDUM**
Hi-Health Supermart Corp. appeals the judgment entered
against it for discriminating against Jill Lansdale on account
of her gender. See 42 U.S.C. § 2000e-2(a) (Title VII).
Lansdale appeals the grant of a partial summary judgment
against her, and the denial of attorney’s fees.' We affirm.
(1) Hi-Health first asserts that it is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 50. It asserts that the
barrage of gender denigrating comments that issued from its
owner and president, Simon Chalpin, was not sufficient to
allow a jury to find that Lansdale’s working environment
was hostile in the Title VII sense. We disagree. From the
evidence submitted, the jury could, indeed, determine that
* The Honorable Walter K. Stapleton, Senior United States
Circuit Judge for the Third Circuit, sitting by designation.
** This disposition is not appropriate for publication and may
not be cited to or by the courts of this circuit except as provided by
Ninth Circuit Rule 36-3.
1. Lansdale also asserts that the limitation on damages in
42 U.S.C. § 1981 a is unconstitutional. We address that issue in
a published opinion filed this date.
3a
Appendix A
Chalpin’s repeated statements were severe and pervasive en 2ugh
to alter the conditions of Lansdale’s employment and render
the environment hostile and abusive. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126
L.Ed.2d 295 (1993); Ray v. Henderson, 217 F.3d 1234, 1245
(9th Cir.2000); Fuller v. City of Oakland, 47 F.3d 1522, 1527
(9th Cir.1995); Steiner v. Showboat Operating Co., 25 F.3d
1459, 1463 (9th Cir.1994). Certainly a jury could decide that
a reasonable woman would find it so.? Lansdale did.
(2) Hi-Health also asserts that it is entitled to a new
trial because the district court erred in a number of ways.
See Fed.R.Civ.P. 59. The first way it points to is in the seating
of the jury. The district court granted Lansdale’s motion
pursuant to Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct.
1712, 1719, 90 L.Ed.2d 69 (1986), and, thus, refused to allow
Hi- Health to exercise a preemptory challenge against one
woman juror, although it did allow challenges to two other
women jurors. Hi-Health did offer its “neutral” explanation
for the challenge. Even though the explanation was plausible,
the district court did not have to accept it. Here it chose not
to do so. See Purkett v. Elem, 514 U.S. 765, 767-68, 115
S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); Hernandez v. New
York, 500 U.S. 352, 361-64, 111 S.Ct. 1859, 1867-69, 114
L.Ed.2d 395 (1991); McClain v. Prunty, 217 F.3d 1209, 1220-
21 (9th Cir.2000). We owe the district court a great deal of
deference. See United States v. Collins, 90 F.3d 1420, 1430
(9th Cir.1996); United States v. Lorenzo, 995 F.2d 1448, 1455
(9th Cir.1993). We are unable to say that it abused its
discretion here.
2. See Ellison v. Brady, 924 F.2d 872, 879-80 (9th Cir.1991).
4a
Appendix A
Hi-Health also seeks a new trial on a myriad of other
grounds. It suggests that the issue of punitive damages should
not have gone to the jury because it could not be said that
Chalpin acted with malice or with reckless indifference to
Lansdale’s Title VII rights. See 42 U.S.C. § 1981a(b)(1);
Kolstad v. American Dental Ass'n, 527 U.S. 526, 535-36,
119 S.Ct. 2118, 2124-25, 144 L.Ed.2d 494 (1999);
Passantino v. Johnson & Johnson Consumer Prods., Inc.,
212 F.3d 493, 515 (9th Cir.2000). We disagree. The jury could
find that Chalpin was well aware of the fact that under
Title VII he could not discriminate against a woman on
account of her gender, and that his claim that he could
nevertheless belittle and denigrate women on that basis was
recklessly indifferent to his legal obligations. His assertion
that there is something novel in the concept that humiliating
and verbally abusing women on account of their gender
violates Title VII is not even minimally persuasive.
See Steiner, 25 F.3d at 1463; see also Smith v. First Union
Nat’! Bank, 202 F.3d 234, 242 (4th Cir.2000); Gross v.
Burggraf Constr. Co., 53 F.3d 1531, 1537, 1539 (10th Cir.
1995); Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 905
(1st Cir.1988).
Also, we see no reversible error in the district court’s
admission of certain other acts against women other than
Lansdale. Those acts were relevant to show Chalpin’s pattern
of conduct, which created an abusive atmosphere as to women
in general, and his at least reckless indifference to his effect
upon them. See Heyne v. Caruso, 69 F.3d 1475, 1479-80
(9th Cir.1995); see also Tennison v. Circus Circus Enters.,
Inc., 244 F.3d 684, 689 n. 3 (9th Cir.2001); Passantino,
5a
Appendix A
212 F.3d at 516. Admission of the evidence was within the
district court’s discretion.’ See Tennison, 244 F.3d at 688.
Likewise, the district court did not abuse its discretion
when it denied a new trial based upon misconduct by
Lansdale’s attorney. See Kehr v. Smith Barney, Harris Upham
& Co., 736 F.2d 1283, 1286 (9th Cir.1984).
(3) Lansdale appeals the grant of a summary judgment
against her on her claim of retaliation. However, we agree
with the district court that she did not place that claim before
the Equal Employment Opportunity Commission, and, there-
fore, cannot pursue it here. See Brown v. Puget Sound Elec.
Apprenticeship & Training Trust, 732 F.2d 726, 729-30
(9th Cir.1984); see also Haugerud v. Amery Sch. Dist., 259
F.3d 678, 689 (7th Cir.2001). Of course, we are cognizant
of the fact that a claim which is sufficiently related to the
claim filed may be considered by us. See EEOC v. Farmer
Bros. Co., 31 F.3d 891, 899 (9th Cir.1994); Green v. Los
Angeles County Superintendent of Sch., 883 F.2d 1472, 1475-
76 (9th Cir.1989). We agree with the district court that
Lansdale’s retaliation claim is not in that category. In any
event, we also agree that she did not submit sufficient
evidence of retaliation to enable her to avoid summary
judgment. See Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273-74, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001);
Cohen v. Fred Meyer, Inc. , 686 F.2d 793, 796 (9th Cir. 1982).
3. In addition, given all of the circumstances, the district court
did not abuse its discretion when it allowed testimony by a witness
who had not previously been disclosed. See Bunch v. United States,
680 F.2d 1271, 1280 (9th Cir. 1982).
6a
Appendix A
(4) Lansdale’s final argument is that the district court
abused its discretion when it denied her attorney’s fees
because she failed to file her motion therefor in a timely
fashion, that is within 14 days after entry of judgment.
We disagree. Lansdale violated both national and local rules
of civil procedure. See Fed.R.Civ.P. 54(d)(2)(B); Dist. of
Ariz. Loc. R. of Prac. 2.20; Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 889-90 (9th Cir.2000). That was a
sufficient reason to deny the fee motion. Jd.
AFFIRMED. The parties shall bear their own costs on
appeal.
Ta
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DATED AND FILED DECEMBER 19, 2002
United States Court of Appeals,
Ninth Circuit
D.C. No. CV-97-02555-RGS
No. 01-16017
Jill LANSDALE,
Plaintiff-Appellant,
V.
._HI-HEALTH SUPERMART CORPORATION,
Defendant-Appellee.
No. 01-16018
Jill Lansdale,
Plaintiff-Appellee,
v.
Hi-Health Supermart Corporation,
Defendant-Appellant.
8a
Appendix B
_Argued and Submitted Nov. 6, 2002
Filed Dec. 19, 2002
Before STAPLETON,* O’SCANNLAIN, and FERNANDEZ,
Circuit Judges.
OPINION
FERNANDEZ, Circuit Judge.
Jill_Lansdale obtained a verdict against Hi-Health
Supermart Corp. for gender discrimination. See 42 U.S.C.
§ 2000e-2(a) (Title VII). She appeals the limitation of her
damages pursuant to 42 U.S.C. § 1981a and asserts that the
statute is unconstitutional.’ We affirm.
BACKGROUND
After she was terminated from Hi-Health, Lansdale
brought this action and claimed that Hi-Health, through
its owner and president, discriminated against her by
establishing a hostile environment based upon her gender.
The jury agreed and awarded damages of $100,000 for pain
and suffering, mental anguish, shock and discomfort, plus
$1,000,000 in punitive damages.
* The Honorable Walter K. Stapleton, Senior United States
Circuit Judge for the Third Circuit, sitting by designation.
1. Lansdale asserts a number of other claims and Hi-Health also
appeals and asserts additional claims on its own behalf. We address
all of those claims in an unpublished memorandum disposition filed
this date.
9a
Appendix B
The district court then applied the limitation in 42 U.S.C.
§ 1981a and reduced the damage award to $200,000. Lansdale
claims that the statutory limitation is unconstitutional and,
therefore, appeals from the district court’s reduction of the
jury award.
STANDARD OF REVIEW
We review the constitutionality of the statute limiting
damages de novo. See Gray v. First Winthrop Corp., 989
F.2d 1564, 1567 (9th Cir.1993). We would only invalidate
the statute for “the most compelling constitutional reasons.”
/d. (internal quotation marks and citations omitted).
DISCUSSION
Lansdale’s argument that Congress violated the United
States Constitution when it placed a damage cap on Title VII
recoveries is presented with great vigor, but lacks virtue.
Until it enacted 42 U.S.C. § 1981a as a part of the Civil
Rights Act of 1991, no future-looking damages or punitive
damages whatsoever were available to those who asserted
Title VII claims, regardless of whether those claims were
based upon race, color, religion, sex, or national origin.
However, damages were available in actions under 42 U.S.C.
§ 1981 for those who could show that they were denied rights
“enjoyed by white citizens.” In 1991, Congress decided to
grant damages to those whose Title VII rights were violated,
but it limited (capped) the amount that could be obtained.
For employers like Hi-Health, “(t]he sum of the amount of
compensatory damages awarded ... for future pecuniary
losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary
10a
Appendix B
losses, and the amount of punitive damages awarded under
this section, shall not exceed, for each complaining party
.. $200,000.” See 42 U.S.C. § 1981a(b)(3)(C).
Understandably, many plaintiffs were not satisfied with
that partial remedy; they wanted to, and were sure they could,
recover much more. Thus, they, like Lansdale, challenged
the limitation on constitutional grounds.
We have had occasion to consider and reject some of
those challenges. See Hemmings v. Tidyman ss Inc., 285 F.3d
1174, 1200-02 (9th Cir.2002). In so doing, we have pointed
out the fact that, “[iJn 1991, Congress determined that victims
of employment discrimination were entitled to additional
remedies. But, as legislative history makes clear, the 1991
Act would not have been passed by Congress but for the
inclusion of a... damages cap.” Jd. at 1201 (citation
omitted). We also ruminated on the legislative process
and said:
However, Congress has significant power to
define and circumscribe self-created causes of
action. Indeed, almost two decades ago, the
Supreme Court articulated a vital distinction
between common law causes of action and
actionable rights created by Congress. Specifi-
cally, the Court noted that
when Congress creates a statutory right, it clearly
has the discretion, in defining that right, to create
presumptions, or assign burdens of proof,
or prescribe remedies. ... Such provisions do,
in a sense, affect the exercise of judicial power,
lla
Appendix B
but they are also incidental to Congress’s power
to define the right that it has created.
Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 83, 102 S.Ct. 2858,
73 L.Ed.2d 598 (1982). Title VII epitomizes such
a congressionally created right. . . .
Id. at 1200. Based upon that, we definitively rejected the
claims that Lansdale now makes based upon violation of the
Separation of Powers Doctrine and invasion of the province
of the jury in violation of the Seventh Amendment to the
United States Constitution. Jd. at 1200-02.
Nevertheless, argues Lansdale, the cap does violate the
Equal Protection and Due Process clauses of the United States
Constitution.’ But, again, as we said in Hemmings, 285 F.3d
at 1200-01, Congress does have the authority to prescribe,
and limit, remedies. Beyond that, it is common knowledge
that Congress is not required to solve every facet of a societal
problem at the same time,’ and we defer to its decisions,
2. Of course, the equal protection argument is, of necessity,
a due process argument because it is a federal statute that we are
dealing with. See Vance v. Bradley, 440 U.S. 93, 94 n. 1, 99 S.Ct.
939, 941-n. 1, 59 L.Ed.2d 171 (1979); Bolling v. Sharpe, 347 U.S.
497, 500, 74 S.Ct. 693, 695, 98 L.Ed. 884 (1954). We will hereafter
refer to equal protection principles only. Lansdale cites nothing to
the contrary. If she did wish to make a different point, she has waived
it by not briefing it. See Brookfield Communications, Inc. v. W. Coast
Entm t Corp., 174 F.3d 1036, 1046 n. 7 (9th Cir.1999).
3. See Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,
518 U.S. 727, 757, 116 S.Ct. 2374, 2393, 135 L.Ed.2d 888 (1996).
12a
Appendix B
even (or especially) compromises allocating the benefits and
burdens arising out of our engagement in commercial life.
See Ferguson v. Skrupa, 372.U.S. 726, 730, 83 S.Ct. 1028,
1031, 10 L.Ed.2d 93 (1963); see also Lyon v. Agusta S.P.A.,
252 F.3d 1078, 1086-88 (9th Cir.2001). “Of course, the
legislature must act in a rational manner; that almost goes
without saying.” Lyon, 252 F.3d at 1086. But there is nothing
arbitrary or irrational about § 198 1a. It certainly does not set
up a facially invalid classification on the basis of gender. Oh
the contrary, it treats all groups within its compass in the
same manner. See Madison v. IBP, Inc., 257 F.3d 780, 805
(8th Cir.2001), vacated on other grounds, _ U.S. _, 122
S.Ct. 2583, 153 L.Ed.2d 773 (2002). All are subject to its
damage cap.
Thus, it is clear “that the statute must stand if it bears a
rational relationship to any legitimate articulated government
purpose.” Pollard v. E.I. DuPont de Nemours Co., 213 F.3d
933, 946 (6th Cir.2000), rev'd on other grounds, 532 U.S.
843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001); see also
Madison, 257 F.3d at 805. It does.* As we indicated in
4. Lansdale has not presented any substantial evidence that
Congress intended to discriminate against women when it enacted
§ 1981a(b)(3). On the contrary, it clearly acted to increase the rights
of everyone who brought actions under Title VII, including women.
Thus, we do not use intermediate scrutiny in our analysis.
See Personnel Adm’r v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282,
2293, 60 L.Ed.2d 870 (1979); Navarro v. Block, 72 F.3d 712, 716
(9th Cir.1996); Toomey v. Clark, 876 F.2d 1433, 1436 n. 2 (9th Cir.
1989). Were we to do so, we are satisfied that the statute would also
pass that level of review for much the same reasons as it passes
rational basis review.
13a
Appendix B
Hemmings,’ and as other courts have declared: “In a political
compromise, the Civil Rights Act of 1991 was limited in the
remedies which it would provide due to a belief that unlimited
damages for all forms of discrimination would force
employers to institute hiring quotas for their own economic _
safety.” Pollard, 213 F.3d at 946. Moreover, “Congress
instituted the damages limitation in order to deter frivolous
lawsuits and to protect employers from financially crippling
awards, and the limitation is rationally related to these
legitimate purposes.” Madison, 257 F.3d at 805. This case
underscores the basis for Congress’s concern. While the jury
awarded no out of pocket damages, it did award Lansdale
$100,000 in damages for pain and suffering, mental anguish,
shock and discomfort, and then went on to award her a
whopping $1,000,000 in punitive damages.
Finally, despite Lansdale’s suggestion to the contrary,
Congress was hardly required to limit the already existing
§ 1981 rights of those who claimed that they had been
subjected to race discrimination, whether in the workplace
or elsewhere, in order to give some additional rights to others.
See Pollard, 213 F.3d at 946. It would be middling strange
to hold that protecting both genders against race discrimi-
nation somehow discriminates on the basis of gender unless
the exact same protection is accorded when gender
discrimination alone is involved. That appears to be a most
unusual mixing of categories.° Beyond that, we fail to see
5. 285 F.3d at 1201.
6. It would not key on discrimination between men and women,
or between one race and another, but, rather, on discrimination
between race and women.
14a
Appendix B
why Congress cannot show special concern for those who
are subjected to race discrimination. In fact, race
discrimination has been one of the most disruptive elements
in our national life since the founding of our republic, and
attempts to overcome all vestiges of that evil have formed
“the cornerstone of our entire body of civil rights law.” Jd.
Of all the vile types of discrimination, courts and Congress
have treated race discrimination as the most vile of all.’
CONCLUSION
Congress made a laudable decision when it expanded
the scope of recovery for those who are subjected to
discrimination in employment. We cannot say that it also
violated the Constitution of the United States when it chose
to limit the amount of damages that could be recovered,
even if it did not go on to limit damages recoverable under
42 U.S.C. § 1981.
It is not at all surprising that Lansdale wants even more
than Congress provided; that is just the working out of one
of human nature’s quotidian drives. However, she must be
content with her six figure judgment, faute de mieux.
AFFIRMED. The parties shall bear their own costs on
appeal.
7. For example, laws that discriminate on the basis of race are
subjected to the highest level of scrutiny. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 224, 115 S.Ct. 2097, 2111, 132 L.Ed.2d
158 (1995).
15a
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA
DATED MARCH 29, 2001 AND FILED MARCH 30, 2001
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
97-CIV-2555-PHX-RGS
Jill Lansdale,
Plaintiff,
Vs.
Hi-Health Supermart Corp.,
Defendant.
ORDER
On April 26, 2000, a jury found in favor of Plaintiff,
Jill Lansdale, on her claim of sexual harassment under Title
VII, awarding her $100,000 in compensatory damages and
$1 million in punitive damages. Pending before the Court
are several post-trial motions, including Defendant’s motions
for a new trial or for judgment as a matter of law, motions
for attorneys’ fees, cross motions pertaining to the size of
the punitive damages award, and motions to strike or to
supplement the record. For the reasons set forth below,
the Court will sustain the verdict but will reduce the punitive
damages award to comply with the $200,000 statutory
l6a
Appendix C
maximum under Title VII. The Court also will strike the
Plaintiff’s request for attorney’s fees and deny the Defendant’s
request for attorneys’ fees.
I. DEFENDANT’S RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW OR, IN THE
ALTERNATIVE, MOTION FOR NEW TRIAL
A. Judgment as a Matter of Law
1. Legal Standard
Defendant moves for judgment as a matter of law
pursuant to Fed. R. Civ. P. 50(a)(1). Entry of judgment as a
matter of law is proper when the jury verdict is not supported
by substantial evidence. Mockler v. Multnomah County,
140 F.3d 808, 815 n.8 (9" Cir. 1998); Kaplan v. Burroughs
Corp., 611 F.2d 286, 290 (9" Cir. 1979). As the Supreme
Court recently clarified:
[I]n entertaining a motion for judgment as a matter
of law, the court should review all of the evidence
in the record. In doing so, however, the court must
draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility
determinations or weigh the evidence. Credibility
determinations, the weighing of the evidence, and
the drawing of legitimate inference from the facts
are jury functions, not those of a judge. Thus,
although the court should review the record as a
whole, it must disregard all evidence favorable to
17a
Appendix C
the moving party that the jury is not required to
believe. That is, the court should give credence
to the evidence favoring the nomovant as well as
that evidence supporting the moving party that is
- uncontradicted and unimpeached, at least to the
extent that that evidence comes from disinterested
witnesses.
Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct.
2097, 2110 (2000).
2. Elements of sexual harassment
Title VII, 42 U.S.C. § 2000(e)-2(a)(1) makes it “unlaw-
ful... for an employer ... to discriminate against any
individual with respect to [her] compensation, terms,
conditions or privileges of employment because of such
individual’s . . . sex.” The workplace environment is deemed
one of the “terms, conditions or privileges of employment,”
and thus if an individual is subjected to a hostile work
environment based upon her gender, Title VII creates a cause
of action. Meritor Savings Bank v. Vinson, 477 U.S. 57,
64-67 (1986).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reiterated the standard by which
workplace conduct was to be measured:
This standard ... takes a middle path between
making actionable any conduct that is merely
offensive and requiring the conduct to cause a
tangible psychological injury. As we pointed out
18a
Appendix C
in Meritor, “mere utterance of an . . . epithet which
engenders offensive feelings in an employee”...
does not sufficiently affect the conditions of
employment to implicate Title VII. Conduct that
is not severe or pervasive enough to create an
objectively hostile or abusive work environment
— an environment that a reasonable person would
find hostile or abusive — is beyond Title VII’s
purview. Likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct
has not actually altered the conditions of the
victim’s employment and there is no Title VII
violation.
Determining whether a work environment is hostile is not a
mathematically precise test. Factfinders should make such a
determination by looking at all the circumstances, including
the frequency of the alleged 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. Jd. at 22-23.
3. Evidence adduced at trial
Ms. Lansdale worked at Hi-Health from October, 1996
through June, 1997, almost nine months. Plaintiff testified
that during that time, her supervisor, Simon Chalpin, made
at least fourteen gender-related, derogatory or sexually
suggestive comments to her. Chalpin made a comment about
her being “available” after a weekend in which she had
worked so hard that her husband was angry. [Trial Transcript
Widetaneelaha eae cate et
ROCTH, ie iain
19a
Appendix C
(“Tr.”) at 277].' She interpreted his comment to mean that
“my husband had been so upset with me that, you know,
maybe he and I were — had a serious problem, and maybe
I would consider something with Mr. Chalpin.” [Tr. at 277].
In addition, she stated Chalpin made the following
comments to her: (1) “Men were smarter than women”
[Tr. at 255]; (2) “Think with the logic of a man” [Tr. at 236];
(3) “You’re slimming up quite nicely” [Tr. at anit
(4) “Speaking of butts, I’ve noticed yours is getting smaller”
[Tr. at 271]; (5) “Hi-Health was a slow-moving company
because they had a woman in charge of merchandising, which
was myself” [Tr. at 244]; (6) “I was slow because I was a
woman” [Tr. at 246]; (7) “Women were slower than men”
(Tr. at 252]; (8) “I should negotiate like a man, forget that
I was a woman” [Tr. at 242]; (9) Carol Norwalk was a “dumb
broad” [Tr. at 275]; (10) “I would like to sleep on those
tonight” (referring to a buxom woman pictured in an
advertisement) [Tr. at 274]; (11) “Boy, I can think of one
thing I’d like to talk to her about” (referring to a stock
photograph) [Tr. at 274]; (12) “That’s a comment that only a
woman would make” [Tr. at 262]; (13) “I got where I was
because of my looks, or I got where I was because of my
looks and my body” [Tr. at 270].
Other witnesses, including Judy Bell, Carol Norwalk,
and Deborah Markett, corroborated some of Plaintiff’s
testimony. Bell heard Chalpin refer to men being smarter
1. The cited portions of the trial transcript are attached as an
exhibit to Defendant’s Renewed Motion for Judgment as a Matter of
Law or, in the alternative, Motion for a New Trial (Doc. #157).
20a
Appendix C
than women. [Tr. at 931]. Norwalk testified that Chalpin had
commented that Plaintiff had gotten her job because of her
“*face” and her “boobs.” [Tr. at 759]. Markett said that Chalpin
broke up a conversation she was having with a female co-
worker [Tr. at 813] and that Chalpin had used the work
“broad” during a personal telephone call. [Tr. at 827].
Dworkin also stated she had heard Chalpin use the word
“broad.” [Tr. at 684].
4. Analysis
Defendant contends Chalpin’s comments were not suffi-
ciently severe, pervasive, or abusive to have a discriminatory
impact on Plaintiff’s working environment. Rather, the
evidence shows only that Chalpin engaged in occasional
gender-related teasing and joking, and that a reasonable
person would not find his conduct severely hostile or abusive.
Defendant relies on cases from other circuits granting
summary judgment or overturning jury verdicts where the
evidence was arguably more egregious than in the instant
case. See, e.g., Gupta v. Florida Board of Regents, 212 F.3d
571 (11" Cir. 2000) (reversing jury verdict and entering
judgment as a matter of law, where supervisor touched the
plaintiff on the knee and thigh, lifted the hem of her dress,
greeted her in his undershirt when she arrived at his office
and unzipped his pants to tuck in his shirt); Mendoza v.
Borden, Inc., 195 F.3d 1238 (11™ Cir. 1999) (affirming
judgment as a matter of law where supervisor rubbed his hip
against plaintiff’s hip, on two instances made a sniffing sound
while looking at her groin area, and constantly followed her
around and stared at her); Baskerville v. Culligan Int'l. Co.,
2la
Appendix C
50 F.3d 428, 430 (7" Cir. 1995) (reversing jury verdict, even
though supervisor’s conduct, including masturbation
gestures, grunting at women, and suggesting that “pretty
girls” should “run around naked,” were adolescent and crude).
Defendant has not cited, nor has the Court’s research
uncovered, any Ninth Circuit cases setting the bar for sexual
harassment ciaims quite so high as the cases cited above.
Moreover, at least two other circuits have declined to enter
judgment for the defendant based on evidence that was
comparable in severity and pervasiveness to that adduced
here. See Rorie v. United Parcel Service, Inc., 151 F.3d 757
(8" Cir. 1998) (reversing award of summary judgment to
defendant, where supervisor patted a female employee on
the back, brushed up against her, and told her she smelled
good); Smith v. Northwest Financial Acceptance, Inc.,
129 F.3d 1408 (10" Cir. 1997) (affirming district court’s
denial of defendant’s motion for judgment as a matter of law
based on six, sexually-disparaging remarks made over the
course of 23 months).
The evidence adduced at trial in this case is on the
borderline of culpable conduct under Title VII. Never-
theless, in the absence of more explicit guidance from the
Ninth Circuit, and in light of the highly fact-specific inquiry
at issue, the Court declines to upset the jury verdict and
accordingly will deny Defendant’s motion for judgment as a
matter of law.
22a
Appendix C
B. New Trial
In the alternative, Defendant moves for a new trial
pursuant to Fed. R. Civ. P. 59. Amotion for a new trial should
be denied unless the verdict “is against the great weight of
the evidence, or it is quite clear that the jury has reached a
seriously erroneous result.” Vegegas v. Wagner, 831 F.2d ©
1514, 1519 (9" Cir. 1987). Defendant contends that the
following circumstances demand a new trial in this case:
(1) the Court wrongly rejected one of Defendant’s peremptory
challenges to a juror; (2) the Court wrongly submitted the
issue of punitive damages to the jury; (3) Plaintiff’s counsel
committed misconduct which seriously prejudiced the jury;
and (4) the Court wrongly admitted the testimony of Brenda
Nitchen, and such testimony seriously prejudiced the jury.
These issues will be addressed in turn.
1. Rejection of Defendant’s Peremptory Challenge
During jury selection, counsel for Hi-Health exercised
peremptory strikes against three jurors — Sandoval, a
Hispanic man, and Easley and Prins, Caucasian women.
Plaintiff objected to the strikes on the ground that the three
individuals were “minorities,” citing Batson v. Kentucky,
476 U.S. 79 (1986). The Court askea counsel for Defendant
to state its reasons for striking the jurors, and with respect to
the women, counsel replied:
... Leanne Easley, she was a third grade teacher.
I would prefer to have on the panel people who
have worked in the industry, who are used to being
in corporations. Her life has been spent as a
23a
Appendix C
teacher of young children. She’s not likely to have
worked in the same kind of environment that the
plaintiff worked in or that Mr. Chalpin is familiar
with. So I thought she would be inappropriate
given the others in this case.
It’s all a comparative process, of course. She also
had raised her hand in response to Mr. Montoya’s
- question about things that she would find
: offensive to work — at work. And according to
my records, she would find all of the comments
offensive. And I assume that’s why Mr. Montoya
asked the question, to find out who might find it
offensive and who wouldn’t. I thought she was a
little too quick, quite frankly, to find all of that
offensive.
SYS SR MOLES MALE DING
The same could be said for Victoria Prins. She
works for the county. She hasn’t worked in private
industry. She’s not familiar with the environment
in private industry as many of the other people
were. She was quick to raise her hand and she
found these kinds of things offensive. And that’s
why we struck her.
[Tr. at 55-56]. Plaintiff’s counsel did not respond to defense
counsel’s stated reasons for the three strikes. The Court then
delivered its ruling, allowing the peremptory strikes of
Sandoval and Easley, but not of Prins. Defendant contends
that by allowing Prins to sit on the jury, the Court committed
reversible error. Defendant’s argument is unpersuasive.
24a
Appendix C
It is a violation of equal protection for a party to reject a
juror solely on the basis of gender. See J.E.B. v. Alabama,
511 U.S. 127 (1994). Thus, when a party raises a challenge
to a proposed peremptory strike, the party exercising the
strike must describe a juror characteristic other than gender
that motivated the strike, and the proffered explanation may
not be pretextual. /d. at 143. The Court has a duty to make
the determination of pretext based on all the facts and
circumstances, including the persuasiveness of the proffered
explanation, and a comparison of the characteristics of jurors
of the opposite gender who were not stricken. See McClain
v. Prunty, 217 F.3d 1209, 1219-1220 (9" Cir. 2000).
In this case, defense counsel stated he wished to strike
Ms. Prins for two reasons: first, she raised her hand in
response to a question about whether she found sex-related
comments or pictures to be offensive; and second, she had
not worked in private industry. The Court found these
proffered reasons to be pretextual, as no persuasive rationale
was Offered to support the strike.
Although the Court has no current recollection of the
specific responses to the question concerning the offensive
nature of sexual jokes, pictures, remarks, teasing or subtle
sexual hints, it is Plaintiff's counsel’s recollection that
several male jurors also raised their hands, yet none of these
prospective jurors were the subjects of Defendant’s
peremptory strikes.
As to Ms. Prins’ lack of experience in private industry,
the Court noticed that Defendant did not strike a male juror,
Duane Howard, who, like Ms. Prins, did not work in private
25a
Appendix C
industry. In any event, the Court found unconvincing the
notion that there is a difference material to this case between
working in the public versus the private sector. The purported
distinction is particularly immaterial as applied to Ms. Prins’
position as a finance director for Maricopa County,
a professional position like that held by plaintiff. By contrast,
juror Easely’s job as a schoolteacher involved a markedly
different environment — one which places her around
children instead of adults for much of the day — thus
providing greater justification for striking her from the panel.
Based on the totality of the circumstances, the Court properly
found that Defendant’s proffered explanations for striking
Prins were a pretext for gender discrimination. Defendant is
therefore not entitled to a new trial on this ground.
2. Submission of Punitive Damages to Jury
Defendant also argues it is entitled to a new trial, because
the Court wrongly allowed the jury to consider an award of
punitive damages. The Court disagrees.
Punitive damages awards for violation of Title VII are
governed by 42 U.S.C. § 1981a(b)(1). The relevant portion
of subsection (b) provides:
A complaining party may recover punitive
damages .. . if the complaining party demonstrates
that the respondent engaged in a discriminatory
practice .. . with malice or with reckless
indifference to the federally protected rights of
an aggrieved individual.
26a
Appendix C
The Supreme Court recently clarified the definitions of
“malice” and “reckless indifference” in Kolstad v. American
Dental Ass’n., 527 U.S. 526, 535 (1999). The Court explained
that those terms do not relate to the employer’s awareness
that it is engaging in discrimination, but instead focus on the
employer’s knowledge that it may be acting in violation of
federal law. Jd. To act with the state of mind required to justify
punitive damages, an employer must, at a minimum,
“discriminate in the face of a perceived risk that its actions
will violate federal law.” Jd. at 536. Intentional discrimination
would not give rise to punitive damages under this standard
if the theory of discrimination advanced by the plaintiff is
sufficiently “novel” or “poorly recognized” at the time of
the conduct, or if the employer is “simply unaware” that the
law prohibits the conduct. Jd. Defendant contends the Court
erred, because Plaintiff’s theory of gender-based sexual
harassment was novel, and because the evidence showed that
Chalpin was unaware that his conduct violated federal law.
The Court finds these arguments unpersuasive.
a. Whether theory was “novel”
Defendant first argues that Plaintiff’s claim for unlawful
harassment was novel, because it was based on her allegation
that Chalpin had made “gender-biased” remarks; she did
not allege that Chalpin had made pervasive comments
of a “sexual” nature, or that Chalpin ever touched her
inappropriately or pressured her to have any type of sexual
relationship. Defendant relies on the Court’s ruling on
Defendant’s summary judgment motion that gender-based
harassment had never before been addressed in the Ninth
Circuit. (See Doc. #71 at 7.)
Hin cowed DO Oe
27a
Appendix C
Defendant fails to point out, however, that this Court
also observed in its ruling that other circuits had explicitly
recognized gender-based sexual harassment as a form of
actionable discrimination under Title VII. /d.; see also
Andrews v. City of Philadelphia, 895 F.2d 1469, 1485
(3d Cir. 1990); Hall v. Gus Construction Co., 842 F.2d 1010,
1014 (8 Cir. 1988). Under the circumstances, the Court does
not find that Plaintiff’s theory was either “novel” or “poorly
recognized” within the meaning of Kolstad. Indeed, in light
of the authority from other jurisdictions, Defendant certainly
could have been acting in spite of a risk that its conduct
violated the law.
b. Chalpin “Simply Unaware”
Defendant further argues that Chalpin was “simply
unaware” that his comments violated federal law. Defendant
notes that Chalpin and other witnesses testified that his
comments were made in jest, and he did not believe he was
offending anyone. Because a hostile environment/sexual
harassment claim depends upon the effect of comments on
the listener, Defendant reasons that Chalpin’s belief that his
comments did not offend anyone mandates a finding that he
was unaware that he was breaking the law. This argument is
unpersuasive. The jury, of course, was entitled to disbelieve
Chalpin’s testimony.
3. Misconduct by Plaintiff’s Counsel
Defendant also contends the Court should grant a new
trial because Plaintiff’s attorney committed misconduct
prejudicial to Defendant by 1) violating Court orders
28a
Appendix C
regarding the admissibility of certain testimony and 2) asking
questions with no factual basis and thereby testifying to the
jury. A new trial is warranted if opposing counsel’s
misconduct “ ‘sufficiently permeate[d] the entire proceeding
to provide conviction that the jury was influenced by passion
and prejudice in reaching its verdict.’” Kehr v. Smith Barney,
Harris & Upham Co., 736 F.2d 1283, 1286 (9" Cir. 1984)
(quoting Standard Oil Co. of California v. Perkins, 347 F.2d
379, 388 (9" Cir. 1965). See also Anheuser-Busch, Inc. v.
Natural Beverage Distributors, 69 F.3d 337, 346 (9™ Cir.
1995). Although the Court agrees that Plaintiff’s attorney
committed misconduct, the Court finds that such misconduct
did not sufficiently permeate the proceeding so as to warrant
a new trial.
The misconduct was as follows. First, despite a prior
ruling that evidence of racially discriminatory conduct would
not be admitted (see Doc. #109 at 9), counsel for Plaintiff
made one statement and asked one question of a witness
implying that race discrimination occurred at Hi-Health.
The first statement was made to Jill Lansdale. During her
testimony, she stated that comments about her gender were
not funny, because “You don’t make racist jokes to a Black
person in the workplace.” [Tr. at 365]. After the Court then
sustained Defendant’s objection, counsel for Plaintiff stated,
“And let’s not talk about racist jokes to proceed quickly.”
[Tr. at 365-66] (emphasis added). Defendant contends this
comment implied that there was unelicited testimony about
racist jokes. Second, counsel for Plaintiff asked Mr. Chalpin,
“Have you ever hired a minority at Hi-Health?” [Tr. at 513].
Defendant’s objection was sustained, and during a recess,
the Court ruled that counsel’s conduct was “a clear violation
29a
Appendix C
of the Court’s Order” and stated that it would “consider later
what sanction, if any, to impose.” [Tr. at 516].
Although the Court had ruled that evidence of race
discrimination would be inadmissible at trial, the Court does
not find that these two references prejudiced the jury. The
first instance, in which plaintiff’s counsel told Ms. Lansdale
not to discuss race “to proceed quickly,” did not necessarily
imply that he would be glossing over evidence of race
discrimination. Counsel could just as easily have been asking
Ms. Lansdale not to discuss any further the idea of racist
jokes as a metaphor for the type of discrimination she
allegedly experienced.
The second instance, in which counsel asked Mr. Chalpin
if he’d ever hired a minority, is more problematic. Never-
theless, Defendant’s objection was sustained, and Mr. Chalpin
did not answer the question. Under the circumstances, and
in light of the substantial evidence supporting the jury’s
verdict, the Court does not believe that Plaintiff’s having
asked the question warrants a new trial.
Plaintiff also asked a question of another witness,
Scott Christensen, which appeared calculated to malign
Mr. Chalpin’s character in violation of a Court order adopting
a stipulation of the parties. (See Doc. #85, Doc. #81).
The question was whether Chalpin had ever told Christensen
that he “needed to hack out part of [his] brain?” The Court also
finds this question did not prejudice the jury. This is particu-
larly true in light of the fact that part of Hi-Health’s strategy,
as reflected in its opening statement, was to acknowledge
that Chalpin may have been hard on his employees.
30a
Appendix C
In addition to flouting the Court’s Orders, Plaintiff’s
counsel also asked several questions which appeared to lack
evidentiary foundation.? The Court has reviewed these
2. These questions included the following:
* Montoya asked Scott Christensen if he had ever
described Chalpin as a “horribie person” [Tr. at 1082],
but no witness ever testified to that effect, and Montoya
offered no evidence that Christensen had ever said such
a thing.
* In cross-examining Christensen, Montoya stated
that he had overheard Christensen and Chalpin talking
outside the courtroom about a “mutual venture” [Tr. at
1081], Christensen denied discussing such a “mutual
venture.”
¢ In questioning Hi-Health’s senior buyer, Jay Chopra,
Montoya asked if he knew “that your colleagues at
Hi-Health refer to you as, quote, Sy’s little yes man,
unquote... ?” [Tr. at 1187]. Neither Chopra nor his
colleagues ever testified to such a name.
¢ Montoya asked Chalpin whether he had ever stated
that “no women had ever been the president of a Fortune
500 company.” [Tr. at 579]. Montoya never put such a
comment into evidence through any witness.
* Montoya asked Chalpin if he had ever been
reprimanded or criticized for violating his own policies
[Tr. at 626]. The one occasion on which Chalpin had
been so criticized involved an event which occurred in
September 1997 and was ruled inadmissible by the Court.
(Cont'd)
3la
Appendix C
statements in light of the entire record, and finds that they
were insufficient to prejudice the jury.
Thus, although the Court finds Plaintiff’s counsel’s
conduct inexcusable, the Court is not convinced that it caused
the jury to be motivated by passion or prejudice in reaching
its verdict.
4. Admission of Brenda Nitchen’s Testimony
Defendant further argues a new trial is necessary because
the Court wrongly allowed the Plaintiff to call Brenda
Nitchen as a witness. Nitchen testified that Mr. Chalpin had
(Cont’d)
¢ During Scott Dalton’s testimony, Montoya asked
whether Dalton thought “that Mr. Chalpin had two
separate standards regarding his treatment of men and
women at Hi-Health?” [Tr. at 193]. Hi-Health’s objection
was sustained.
* Montoya asked former employee Manning whether
Chalpin had ever tried to “to hurt your career by
spreading malicious rumors about your professional
competence .... [or] about your personal life or your
personal integrity.” [Tr. at 483]. Although Manning
answered the questions negatively, Montoya had clearly
suggested to the jury his own knowledge of such
misconducted by Chalpin, and no witness ever testified
on those subjects.
* Montoya personally informed the jury in closing,
“I didn’t meet with them extensively. . .. My witnesses
were not prepped [Tr. at 1457].
32a
Appendix C
told her on one occasion “how wonderful you looked today”
— “will you go home with me?” On another occasion a week
later, he asked her if she “could have two lovers,” a reference
to the fact that she was married. [Tr. at 859, 861]. Defendant
argues Nitchen should have been precluded from testifying
for two reasons. First, Nitchen’s testimony was irrelevant
and unfairly prejudicial, and second, Plaintiff did not reveal
her intention to call Nitchen as a witness until halfway
through the trial.
Defendant argues that Nitchen’s testimony was irrelevant
because Plaintiff did not personally observe the incidents
Nitchen described. Indeed, they occurred over 17 months
after Plaintiff left the company, and therefore Defendant
contends they were too remote in time, too attenuated,
and too dissimilar from Plaintiff’s situation to be relevant.
Instead, Defendant contends Nitchen’s testimony was
really only “evidence of other wrongful acts” that would
demonstrate Mr. Chalpin’s character in order to show that
he acted in conformity with that character during Lansdale’s
employment, in violation of Fed. R. Evid. 404(b).
The Court finds, however, that Nitchen’s testimony was
relevant despite the fact that the comments Chalpin made to
her post-dated Plaintiff’s employment. The testimony
provided context for interpreting Chalpin’s comments which
were directed toward Ms. Lansdale. Specifically, it shed light
on whether the harassment by Chalpin was sexually
discriminatory, as well as “the motive behind the harassment,
which [helped] the jury interpret otherwise ambiguous acts.”
Hurley v. The Atlantic City Police Department, 174 F.3d 95,
110 (3% Cir. 1999) (affirming the admission of testimony of
33a
Appendix C
acts of harassment of other women of which the plaintiff
had been unaware). Indeed, evidence regarding harassment
of others of which the plaintiff was unaware is particularly
probative where, as here, the employer’s primary defense is
that “the incidents of abuse [Plaintiff] suffered were trivial
horseplay to which both men and women were subjected. . . .”
Id. Thus, Nitchen’s testimony “creates a basis for an inference
that [Plaintiff] was targeted for abuse because she was a
woman.” /d. Because the evidence is highly probative, “‘it is
unlikely that any putative prejudice therefrom will be unfair
or will outweigh its value.” Jd.?
The argument that Plaintiff disclosed her intention to
call Nitchen as a witness too late is unpersuasive. It was not
until the middle of the trial — when she received a telephone
call from Nitchen — that Plaintiff learned that Nitchen
allegedly had been harassed by Mr. Chalpin. Defendant,
however, knew about Nitchen’s allegations and had failed to
disclose them to the Plaintiff before the beginning of the trial.
Defendant contends it had no obligation to disclose the
facts regarding Nitchen. The Court disagrees. At the outset
of litigation, a party is required to disclose the identity of
persons with information relevant to facts alleged in the
3. Contrary to Defendant’s suggestion, in ruling on Defendant's
motion in limine, the Court did not rule that al/ incidents of
misconduct post-dating Plaintiff's employment would be
inadmissible. Rather, the Court held that incidents post-dating
Lansdale’s employment that involved neither Lansdale nor Chalpin
would not be admitted. (See Doc. #109 at 3-4). Nitchen’s allegations,
however, involved Mr. Chalpin, and therefore assumed greater
probative value.
34a
Appendix C
Complaint. See Fed. R. Civ. P. 26(a). In addition, a party
is required to supplement such disclosures “at appropriate
intervals” if they are incomplete. See Fed. R. Civ. P. 26(e).
Under these rules, Defendant had an obligation to identify
Ms. Nitchen prior to trial. To the extent there existed any
ambiguity about Defendant’s obligations because of questions
regarding the relevance of her testimony, the Court’s ruling
on April 10, 2000 (Doc. #109 at 12) should have clarified
them. That ruling allowed two other witnesses to testify
regarding events involving Mr. Chalpin which took place
after Plaintiff’s having left Hi-Health. The ruling therefore
clearly signaled the Court’s view that incidents post-dating
Plaintiff’s employment, if they involved Chalpin, would be
admissible.
In addition, in April, 1998, Plaintiff had propounded an
interrogatory that requested information about other incidents
of harassment at the company “during the past five years.”
Nitchen’s allegations concerned events in December 1998,
after the interrogatory was served. Nevertheless, under
Fed. R. Civ. P. 26(e)(2), a party is required “seasonably to
amend a prior response to an interrogatory . . . if the party
learns that the response is in some material respect incomplete
or incorrect....” Thus, Defendant arguably had a duty
not only under Rule 26(a), but also under Rule 26(e) to
supplement its response to the interrogatory with the
information regarding Nitchen.
In any event, even if Defendant had not been under any
prior obligation to disclose the facts about Nitchen, defense
counsel could have deposed her during the trial; they declined
to do so. Under such circumstances, Defendant was not
unfairly prejudiced.
35a
Appendix C
II. DEFENDANT’S MOTION TO C( NFORM VERDICT
TO STATUTORY LIMITATION. AND PLAINTIFF’S
CROSS-MOTION TO DECLARE STATUTE LIMIT-
ING DAMAGE AWARD UNCONSTITUTIONAL
Defendant moves the Court, pursuant to 42 U.S.C.
§ 1981a(b)(3)(C), to reduce the jury verdict of $1.1 million
to the maximum amount permitted under the law for em-
ployers with between 200 and 501 employees — $200,000.
Plaintiff opposes the motion and cross-moves the Court
for a declaration that § 1981a(b)(3)(C) is unconstitutional
under the due process and equal protection clauses of the
Fifth Amendment, the Seventh Amendment, and the
separation of powers doctrine. The United States has also
moved to intervene to defend the constitutionality of the
statute and submitted a brief in support of its position.
Defendant and the United States correctly observe that
every court which has addressed the issue has affirmed the
constitutionality of the damages limitations. See, e.g., Pollard
v. E.J. DuPont De Nemours Co., 213 F.3d 933 (6" Cir. 2000),
cert. granted, 121 S. Ct. 756 (Jan. 8, 2001) (rejecting equal
protection, due process, separation of powers challenges);
Means v. Shyam Corp., 44-F. Supp. 2d 129, 132 (D.N.H.
1999) (rejecting due process and equal protection challenges);
Passantino v. Johnson & Johnson Consumer Prods., Inc.,
982 F. Supp. 786, 788 (W.D. Wash. 1997), aff'd in part &
vacated in part & remanded on other grounds, 212 F.3d
493 (9" Cir. 2000) (rejecting Seventh Amendment challenge).
The Court has reviewed these authorities and finds their
reasoning to be persuasive. Accordingly, the Court will grant
Defendant’s motion to reduce the damages award and deny
36a
Appendix C
Plaintiff’s cross motion to declare the statue limiting such
awards unconstitutional. The damages award will be reduced
to $200,000.
Ill. PLAINTIFF’S SECOND MOTION TO SUPPLEMENT
HER FINAL DISCLOSURE STATEMENT, DEFEN-
DANT’S MOTION TO STRIKE SUCH MOTION,
AND PLAINTIFF’S REQUEST TO GRANT SUCH
MOTION PURSUANT TO LOCAL RULE 1.10(i)
Plaintiff has moved to supplement her final disclosure
statement to add a trial witness in the event the Court grants
Defendant’s pending motion for a new trial. The witness
would testify to several discriminatory comments that
Mr. Chalpin made to her. In addition, she would testify that
another trial witness for the Defendant, Jay Chopra, told her
that he lied at trial. Defendant has moved to strike Plaintiff’s
motion, arguing that Plaintiff is using the motion as a tactic
to place before the Court inflammatory evidence which the
Court might consider relevant to Defendant’s pending motion
for a new trial. Defendant did not file an opposition to the
motion to supplement, and therefore Plaintiff also has moved
the Court to grant the motion to supplement as unopposed,
pursuant to Local Rule 1.10(i).
Because the Court is not granting Defendant’s motion
for a new trial, all three motions will be denied as moot.
37a
Appendix C
IV. ATTORNEYS’ FEES
A. Plaintiff’s Motion for Attorneys’ Fees and Non-
taxable Costs and Defendant’s Motion to Strike
As the prevailing party on the gender/sexual harassment
claim, Plaintiff has filed a motion seeking $179,630 in
attorneys’ fees, representing 781] hours of work at a rate of
$230 per hour. Defendant has not filed an opposition to the
motion but has, instead, filed a motion to strike it on the
grounds that it was not filed in a timely manner as required
by the federal and local rules. Defendant’s motion will be
granted, and Plaintiff’s motion for attorney's fees will be
stricken.
Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure
states that “unless otherwise provided by statute or order of
the court, the motion [for attorneys fees and non-taxable
expenses] must be filed and served no later than 14 days
after entry of the judgment. . . .”. Final judgment was entered
in this case on May 4, 2000. Plaintiff filed a Motion for an
Extension of Time in Which to File Application for Taxation
of Costs on May 22, 2000.‘
According to Defendant, Plaintiff’s May 22, 2000 motion
for an extension of time was late, because counting 14 days
4. The Court granted the Plaintiff’s motion for extension of
time before Defendant had an opportunity to respond. Defendant has
filed a motion for reconsideration, arguing that the Plaintiff requested
the extension beyond the deadline. Because the Court will grant the
motion to strike, the Court will deny the motion for reconsideration
as moot.
38a
Appendix C
from May 4, 2000, Plaintiff’s request for fees was due on
Thursday, May 18, 2000. Plaintiff responds that under Fed.
R. Civ. P. 6(e), she was entitled to add three days to the filing
date because the judgment was served on her by mail, and
therefore her request was due on Monday, May 22, 2000.
Rule 6(e) states that “Whenever a party has the right or is
required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the
party by mail, 3 days shall be added to the prescribed period.”
Plaintiff’s position is incorrect. Rule 6(e) does not apply
to motions for attorneys’ fees, because the deadline provided
by Rule 54 runs from the entry of judgment — not from
the service of notice by mail of the judgment. See Kyle v.
Campbell Soup Co., 28 F.3d 928, 929 (9™ Cir. 1994).
Rule 6(e) and local rules permitting extra time for mailing
“only enlarge the filing time when the period for acting runs
from the service of a notice by mail.” Jd. at 930.
Accordingly, Defendant’s Motion to Strike Plaintiff’s
untimely request for fees will be granted.
B. Defendant’s Motion for Attorneys’ Fees and Related
Non-taxable expenses.
Defendant moves for an award of $76,159.66 in attor-
neys’ fees, arguing that it prevailed on summary judgment
on four of the five claims in the lawsuit and that Plaintiff
pursued frivolous and unreasonable litigation with the intent
to harass Defendant. The claims upon which Defendant
prevailed included a retaliation claim under Title VII and
39a
Appendix C
three state law tort claims — intentional infliction of
emotional distress, wrongful termination, and outrage. For
the reasons set forth below, the Court will deny Defendant’s
request for attorneys’ fees.
1. Title VII Retaliation Claim
Under 42 U.S.C. § 2000e-5Sk, the prevailing party in a
Title VII action is entitled to attorneys fees. The statute
provides:
[I]n any action or proceeding under this title,
the Court, in its discretion, may allow the prevail-
ing party, other than the commission or the United
States, a reasonable attorneys fee as a part of
the cost.
42 U.S.C. § 2000e-Sk. If the prevailing party is the defendant,
however, the party is entitled to fees only if the plaintiff’s
action was “frivolous, unreasonable, or without foundation”
or if “the plaintiff continued to litigate after it clearly became
so.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421-22 (1978). The Ninth Circuit defines a “frivolous” action
as one in which “{either] party could have predicted the
outcome with absolute confidence.” Dosier v. Miami Valley
Broadcasting Corp., 656 F.2d 1295, 1301 (9 Cir. 1981).
Defendant contends Plaintiff’s retaliation claim was
frivolous because (1) she failed to invoke and exhaust her
administrative remedies on the retaliation claim, and (2) there
was overwhelming and undisputed evidence of her poor work
performance, which was the actual reason for her discharge.
40a
Appendix C
Defendant also urges the Court to consider the policy
objective behind attorneys’ fees awards to deter frivolous
litigation. See Christiansburg Garment Co., 434 U.S. at 420.
The Court finds that the retaliation claim, though
meritless, was not frivolous. As Plaintiff argued in opposing
Defendants’ motion for summary judgment, EEOC
complaints are liberally construed. Therefore, although
Ms. Lansdale did not check the box on the EEOC form
indicating a complaint for retaliation, a court might have
found that her complaint reasonably included such a charge.
Certainly an argument that it did would not fall outside the
bounds ‘of zealous advocacy. Defendant’s contention that
the retaliation claim was frivolous because Lansdale’s poor
work performance was the true reason for her discharge is
similarly unconvincing. The Court made no such finding in
its ruling on summary judgment and is unwilling to do so
now. Accordingly, the Court finds that Defendant is not
entitled to collect fees for its defense of this claim.
2. Tort claims
Arizona law also enables a prevailing party to collect
attorneys’ fees in limited circumstances. The applicable statute
provides as follows:
The court shall award reasonable attorneys’ fees
in any contested action upon clear and convincing
evidence that the claim or defense constitutes
harassment, is groundless and is not made in good
faith.
oO
4la
Appendix C
A.R.S. § 12-341.01(C). In addition, a court may impose
attorneys’ fees if an attorney or party:
1. Brings or defends a claim without substantial
justification.
2. Brings or defends a claim solely or primarily
for delay or harassment.
3. Unreasonably expands or delays the proceeding.
4. Engages in abuse of discovery.
A.R.S. § 12-349(A). For purposes of this statute, “without
substantial justification” is defined to mean that the claim
“constitutes harassment, is groundless and is not made in
good faith.” A.R.S. § 12-349(F).
Defendants prevailed on all of Plaintiff’s state law claims
on summary judgment. They now contend they are entitled
to collect attorneys’ fees, because (1) the tort of outrage is
not a recognized cause of action in Arizona, see Rowland v.
Union Hills Country Club, 157 Ariz. 301, 304, 757 P.2d 105,
108 (Ct. App. 1988); (2) Plaintiff never addressed her
wrongful termination claim in opposition to Defendants’
motion for summary judgment; (3) with respect to her
intentional infliction of emotional distress claim, she never
consulted a single therapeutic counselor as a result of her
supposed severe emotional distress, and she never alleged
any extreme or outrageous conduct as required by law.
See Mintz v. Bell Atlantic Sys. Leasing Int'l, Inc., 183 Ariz.
42a
Appendix C
550, 553-54, 905 P.2d 559, 562-63 (Ct. App. 1995). In addi-
tion, despite repeated requests for her medical records from
January 1998 forward, Plaintiff failed to produce any
documents regarding her medical history until one month
before trial.
Although the claims were meritless, the Court does not
find clear and convincing evidence that they constituted
harassment, were groundless, and were not made in good
faith, all of which must be found under A.R.S. § 12-341.01
to justify an award of fees. Nor does the Court find that
any of the circumstances set forth in A.R.S. § 12-349 is
applicable here.
Based on the foregoing,
IT IS ORDERED granting Defendant’s motion
to conform verdict to statutory limitation (Doc. #129);
the verdict is hereby reduced to $200,000;
IT IS FURTHER ORDERED denying Defendant’s
motion for award of attorney’s fees and related non-taxable
expenses (Doc. #156);
IT IS FURTHER ORDERED denying Defendant’s
motions for judgment as a matter of law or for a new trial
(Doc. # 157-1, 157-2);
IT IS FURTHER ORDERED striking Plaintiff’s
motion for an award of attorney’s fees and taxable costs
(Doc. #161);
43a
Appendix C
IT IS FURTHER ORDERED denying Defendant’s
motion for reconsideration of May 23, 2000 Order granting
Plaintiff's motion for extension of time to file application
for taxation of costs (Doc. #165);
IT IS FURTHER ORDERED granting Defendant’s
motion to strike Plaintiff’s motion seeking award of
attorney’s fees and costs (Doc. #169);
IT IS FURTHER ORDERED denying Plaintiff’s
motion to declare the damage limitations of the Civil Rights
Act of 1991 unconstitutional (Doc. #186);
IT IS FURTHER ORDERED granting the unopposed
motion of the United States to intervene to defend the
constitutionality of 42 U.S.C. § 1981a(b) (Doc. #192);
IT IS FURTHER ORDERED denying Plaintiff’s
(second motion) to supplement her final disclosure statement
(Doc. #199);
IT IS FURTHER ORDERED denying Defendant
Chalpin’s motion to strike Plaintiff’s second motion to
supplement her final disclosure statement (Doc. #200);
IT IS FURTHER ORDERED denying Plaintiff's
motion for order granting Plaintiff’s second motion to
supplement her final disclosure statement (Doc. #202).
44a
Appendix C
DATED this 29” day of March, 2001.
s/ Roger G Strand
HONORABLE ROGER G. STRAND
U.S. DISTRICT COURT JUDGE
45a
APPENDIX D — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
ARIZONA DATED SEPTEMBER 26, 1999
AND FILED SEPTEMBER 28, 1999
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
CIV 97-2555-PHX-RGS
JILL LANSDALE,
Plaintiff,
VS.
HI-HEALTH SUPERMART CORPORATION
and SIMON CHALPIN,
Defendants.
ORDER
Pending before this Court is defendants’ motion for
summary judgment. The matter was fully briefed' and oral
1. After plaintiff filed her response and defendants filed their
reply, plaintiff, without seeking leave of court, filed four documents
of supplemental authority. See filings of April 22, 1999 [doc. #66],
May 3, 1999 [doc. #67], May 6, 1999 [doc. #68], and May 25, 1999
[doc. #70]. Plaintiff’s filing are little more than lists of citations to
cases, only one of which includes newly published opinions. Notice
to the Court of new case law not in existence at the time of filing a
memorandum may be appropriate, e.g., plaintiff’s filing of April 22,
1999 [doc. #66]; however, that is not the present situation. Plaintiff
offers no justification for failing to seek leave of court or for failing
(Cont'd)
46a
Appendix D
argument heard on May 10, 1999. For the following reasons,
defendants’ motion is granted in part and denied in part.
Procedural History
Plaintiff, Jill Lansdale, (“Lansdale”), filed a complaint
with the Equal Employment Opportunity Commission
(“EEOC”) in September, 1997, alleging that her nghts had
been violated pursuant to Title VII of the Civil Rights Act of
1964. Specifically, she alleged that during the time she was
employed by defendant Hi-Health Supermart (““Hi-Health”),
defendant Simon Chalpin (“Chalpin’’), president and owner
of Hi-Health, sexually harassed her and as a result, created
a hostile work environment. Defendant’s Statement of
Undisputed Material Facts (““DSOF”), Exh. 7. Lansdale
received a right to sue letter from the EEOC on November 7,
1997, and subsequently filed a complaint in this Court on
December 11, 1997.
In her Complaint, Lansdale alleges that she had been
sexually harassed; that she was discharged in retaliation for
her objections to the alleged harassing behavior; and that
(Cont'd)
to cite the cases in her responsive memorandum. The Court notes,
however, that, plaintiff did cite some of the cases in her response
and thus, there is no justification for further “supplemental” citation.
Plaintiff’s unauthorized attempt to submit additional case law and
legal argument under the circumstances is unwarranted and not
contemplated by either the Federal Rules of Civil Procedure or the
Rules of Practice for the United States District Court for the District
of Arizona. Accordingly, plaintiff’s supplemental filings of May 3,
May 6 and May 25, 1999, will be stricken from the record.
47a
Appendix D
Hi-Health failed to take any remedial action upon learning
of the harassment. Pursuant to the state law of Arizona,
Lansdale alleged that she was wrongfully terminated and that
Chalpin had intentionally inflicted emotional distress upon
her. Lansdale also alleged the tort of outrage.
On December 1, 1998, defendants filed a motion for
summary judgment as to all claims. Lansdale, in her response
to the motion for summary judgment, stated that she was not
“asserting wrongful termination or the tort of outrage claims
against either defendant under Arizona law.” Plaintiff’s
Response at 7,n.4. Therefore, the claims pending before this
Court are plaintiff’s Title VII sexual harassment/hostile
working environment claim, retaliatory discharge, and the
state law claim of intentional infliction of emotional distress.
FACTUAL BACKGROUND?
Lansdale was hired by Hi-Health on October 18, 1996.
Chalpin, owner and president of Hi-Health, personally inter-
viewed Lansdale. Initially, Lansdale’s was hired as a buyer
at a salary of approximately $45,000.00 per year. It was
understood that after a probationary period, she would
assume the position of General Merchandising Manager.
On December 2, 1996, Lansdale assumed the duties
of General Merchandising Manager and received a salary
increase to approximately $80,000.00 per year. DSOF,
Exh. 2.
2. Because this is a motion for summary judgment, the factual
background is taken primarily from the statement of facts filed by
the plaintiff.
48a
Appendix D
Lansdale’s duties and responsibilities required that she
work closely with Chalpin. Lansdale performed her duties
as General Merchandising Manager until June 30, 1997.
On June 30, 1997, Lansdale was terminated for allegedly
poor job performance. During the time she was employed as
General Merchandising Manager, Lansdale received eleven
“challenge notes.” These notes indicated that some type of
problem had arisen and that some action was required on
Lansdale’s part to resolve or explain the problem. Often the
notes related to Lansdale’s failure to timely submit sign
or advertising information. DSOF, Exh. 4. Further, it is
uncontradicted that Lansdale and Chalpin disagreed over
training and advertising strategy. Lansdale had been advised
by the human resource department that two-employees had
resigned their positions at Hi-Health, in part, because they
were dissatisfied with the way Lansdale’s department
worked.’ Further, Lansdale and Chalpin disagreed as to
the manner in which advertising was to be solicited. Accord-
ing to Lansdale, Chalpin expected Lansdale to inflate
sales figures of certain products in order to receive more
advertising dollars. Lansdale’s opinion was that the
advertising practices advocated by Chalpin consisted of lying
on a continual basis and were fraudulent. Lansdale refused
to lie. DSOF, Lansdale Deposition at 102-03. Lansdale and
Chalpin engaged in heated arguments regarding this issue.
Id. at 106.
3. Lansdale has not provided any evidence that the performance
deficiencies alleged are untrue.
49a
Appendix D
Lansdale alleges that Chalpin consistently verbally
belittled women in the workplace. Lansdale alleges that on
at least thirty separate occasions Chalpin made comments to
her or others which indicated his gender bias.* The comments
fall in to several general categories: comments made by
Chalpin about the inferiority of women to men in the business
world; specific statements regarding Lansdale’s competence;
comments about female anatomy; remarks regarding
Lansdale’s weight loss; statements about other employee’s
intelligence; and the frequent use of the words “boobs” and
“prick.” Some of the statements complained of by Lansdale
were not made to her but to others. Other employees, in
deposition testimony, allege that Chalpin made gender-
based remarks on a regular basis. PSOF, Exh. D, Dworkin
Deposition; Exh. E, Bell Deposition; Exh. F, Markett
Deposition. Carol Norwalk, a former Hi-Health Supermart
employee, testified in deposition that Chalpin made a remark
about Lansdale’s body getting her a job. Norwalk also
testified that Chalpin spoke to women in the workplace with
less respect, made numerous women in the workplace cry by
talking more abusively to women than men, and imposed
lunch scheduling requirements on women employees but not
on male employees. PSOF, EXH., Norwalk Deposition.
Lansdale alleges that Chalpin’s behavior created a hostile
4. In the interest of economy and efficiency, the text of the
alleged remarks have not been repeated here in their entirety.
Plaintiff’s Response to Defendants’ Motion for Summary Judgment
and Plaintiff’s Statement of Facts set forth each allegedly sexually
harassing or gender biased remark attributed to Chalpin. For the
purposes of summary judgment only, defendants concede that Chalpin
did make the comments.
50a
Appendix D
work environment.’ Plaintiff states that she complained about
Chalpin’s behavior to Scott Dalton, Hi-Health’s human
resources director, and asked for advice on how she could
handle the situation. PSOF, Exh. 945; Lansdale Deposition
at 87-90. Plaintiff contends that Dalton did not take any action
as the result of Lansdale’s conversations with him. Lansdale
alleges that her termination from Hi-Health was the result of
her complaints about Chalpin’s behavior.
ANALYSIS
=
Hostile Working Environment
To prove a case of sexual harassment under a hostile
workplace theory, Lansdale must show that: 1) she was
subjected to verbal or physical conduct of » sexual nature,
2) this conduct was unwelcome, and 3° the conduct was
sufficiently severe or pervasive to alter ‘ne condition of her
employment and create an abusive working environment.
Fuller vy. City of Oakland California, 47 F.3d 1522, 1527
(9" Cir. 1995). For the purposes of summary judgment,
Lansdale has shown that she was subjected to sexual and/or
gender-biased remarks and the conduct was unwelcome.
She told Chalpin directly that his gender based derogatory
remarks offended her and she also complained to Scott
Dalton.
5. In her deposition testimony, Lansdale admits that no
discrimination existed as to salary, vacation days, sick time, office
space, or staff. DSOF, Lansdale Deposition at 23-4. Lansdale stated
that she did not suffer any other discrimination based on her gender
at Hi-Health other than there were unwelcome sexually suggestive
and sexually offensive comments made. /d. at 24.
Sla
Appendix D
The Ninth Circuit has not yet specifically addressed
whether or not a plaintiff can demonstrate a sufficient claim
of “sexual harassment” if the conduct alleged is gender based
and not explicitly sexual in nature. It was noted in Ellison vy.
Brady, 924 F.2d 872, n.4 (9" Cir. 1991), that other circuits
have recognized such a cause of action. The Court will
assume that Lansdale’s allegation of harassment, based on
gender-biased remarks, is a viable cause of action pursuant
to Title VII. Therefore, this case hinges on whether or not
Chalpin’s comments to Lansdale were sufficiently severe or
pervasive to create a hostile working environment.
Title VII, 42 U.S.C.A. §2000(e)-2(a)(1), makes it unlaw-
ful for an employer to fail or refuse to hire or to discharge or
otherwise discriminate against any individual with respect
to her compensation, terms, conditions or privileges of
employment because of such individual’s sex. The workplace
environment is deemed one of the “terms, conditions or
privileges of employment” and thus, if an individual is
subjected to a hostile work environment based upon their
gender, Title VII creates a cause of action. Meritor Savings
Bank v. Vinson, 106 S. Ct. 2399, 2403-05 (1986).
In Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 370
(1993), the Supreme Court reiterated the standard by which
workplace conduct was to be measured.
This standard, which we reaffirm today, takes a
middle path between making actionable any
conduct that is merely offensive and requiring the
conduct to cause a tangible psychological injury.
As we pointed out in Meritor, ‘mere utterance of
an... epithet which engenders offensive feelings
52a
Appendix D
in an employee’ does not sufficiently affects the
condition of employment to implicate Title VII.
Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work
environment — an environment that a reasonable
person would find hostile or abusive is beyond
Title VII’s purview. Likewise, if the victim does
not subjectively perceive the environment to be
abusive, the conduct has not actually altered the
conditions of the victim’s employment and there
is no Title VII violation.
The Court in Harris went on to state that determining whether
a work environment is hostile is not a mathematically precise
test. Fact finders should make such a determination by
looking at all the circumstances, including the frequency
of the alleged 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. /d. at 371. In the present case, Lansdale alleges
that Chalpin made at least thirty sexual or gender biased
comments during the eight months she was employed by Hi-
Health.° As taken from Plaintiff’s Statement of Facts’,
6. Hi-!ealth has not disputed that it is liable for Chalpin’s
conduct. Because Chalpin was the owner and president of Hi-Health,
he held a sufficiently high position in the management hierarchy of
the company for his actions to be imputed automatically to the
employer. See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2284
(1998) (citing Torres v. Pisano 116 F.3d 625, 634-35 and n.11)).
7. Defendants state that “the Court may assume that Chalpin
made all of the statements attributed to him” for purposes of this
motion only. Reply at 9.
53a
Appendix D
Chalpin advised Lansdale that to be successful she should
think with the logic of a man and that she should forget
that she was a woman in negotiations. Chalpin stated to
a prospective job candidate that “we’re a slow moving
company because we have female in charge of our
merchandising department.” Chalpin also told this same job
applicant that “I don’t know how well you know [Lansdale]
but I’ve been working with her for several months now and
she really thinks and moves very slowly. Mostly, I know she
can’t help it. She’s handicapped because of her gender.”
Chalpin told Lansdale that men are smarter than woman and
that women are slower than men. Chalpin stated that Lansdale
was “thinking like a woman again” when she proposed
training buyers in how to interview people. He also told
Lansdale that “you won’t find a woman head of any Fortune
500 company.” He also commented that woman were not
good enough interviewers. The foregoing are the gender-
biased remarks allegedly made by Chalpin.
Lansdale also alleges that Chalpin made sexually
suggestive or sexually inappropriate remarks about her and
about other women to her. Chalpin asked Lansdale to go out
for dinner after work with himself and a manufacturer, when
Lansdale declined due to child care responsibilities Chalpin
replied “chicken, see you tomorrow.” He asked her out on
one other occasions saying “If you’ve gotten your nerve up,
you can join me and-a few other people for drinks after work
tonight.” Lansdale again declined. He also told Lansdale on
more than one occasion that “you got where you are because
of your looks.” Chalpin commented, after Lansdale had told
him that she had spent much of the Easter week-end working,
“so are you telling me you are available now.” In the presence
54a
Appendix D
of Lansdale, Chalpin laughed with another employee about
a store managers “boob job”, and commented salaciously
about other female employees and about pictures of women.
On two occasions he observed that Lansdale was slimming
up nicely and that her backside had gotten smaller. Lansdale
was dieting at the time. He is also reported to have “leered”
and “panted like a dog” at women he found attractive and to
frequently use the words “boobs” and “prick” in Lansdale’s
presence.
The remarks, taken individually, cannot be said to
reasonably constitute harassment or to create a hostile
environment. Lansdale makes no allegations that Chalpin
ever touched her inappropriately or pressured her to have
any type of sexual relationship. On the two occasions in
which Chalpin asked Lansdale to see him after working hours,
other professional people were to be present. However, the
relevant question is whether a reasonable woman would
consider all of Chalpin’s alleged comments, taken together,
sufficiently severe and pervasive to alter a condition of
employment and create an abusive working environment.
See Ellison v. Brady, 924 F.2d 872 (9" Cir. 1991). As noted
above, the fact finder must consider the totality of the
circumstances in evaluating whether or not conduct created
an hostile or abusive working environment. Fact finders
should make such a determination by looking at all the
circumstances, including the frequency of the alleged
conduct, its severity, whether it is physically threatening
or humiliating or a mere offensive utterance, and whether
is unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc.
55a
Appendix D
Lansdale enumerates approximately thirty incidents of
alleged inappropriate behavior. She was employed at Hi-
Health for approximately eight months. Although it does not
appear that the offensive conduct occurred daily or even
weekly, and Lansdale and Chalpin may have argued loudly
and disagreed often over matters unrelated to his biased or
offensive conduct, plaintiff has provided sufficient evidence
from which a reasonable fact finder could conclude that she
was subjected to a hostile environment within the purview
of Title VII.
The Court finds that there is a genuine issue of material
fact in dispute as to whether defendants’ conduct was
sufficiently severe or pervasive to alter the conditions of
plaintiff’s employment and accordingly, will deny
defendant’s motion for summary judgment on plaintiff’s
hostile environment claim.
Retaliation
Hi-Health alleges that Lansdale’s claim of retaliatory
discharge is not properly before this court as she failed to
allege retaliation in her EEOC complaint. The Court agrees.
Plaintiff concedes that she failed to allege retaliation at
the administrative level but contends that requiring her to
set forth her retaliatory discharge claim in the charging
document is a hyper technicality. Response at 15. In the charg-
ing document, plaintiff checked the box for sex discrimination
and failed to check the box marked, retaliation. Charges
before the EEOC or a state agency are to be construed liberally,
but an employee may not bring suit for incidents not listed
56a
Appendix D
in her charge unless they are “like or reasonably related to
the allegations of the EEOC charge.” Stache, 852 F.2d
at 1233-34 (internal quotations omitted). “When an employee
seeks judicial relief for incidents not listed in his original
charge, the judicial complaint may encompass any
discrimination like or reasonably related to the allegations
of the EEOC charge, including new acts.” Oubichon v. North
American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973).
The rationale behind Oubichon is to “avoid creating needless
procedural barriers.” Jd. The exhaustion requirement can lead
to needless procedural barriers because, “[i]f closely re'ated
incidents occur after a charge has been filed, additional
investigative and conciliative efforts would be redundant.”
Brown v. Puget Sound Elec. App. & Train. Trust, 732 F.2d
726, 729-30 (9th Cir. 1984).
On the other hand, “[w]here claims are not so closely
related that agency action would be redundant, the EEOC
must be afforded an opportunity to consider disputes before
federal suits are initiated. ... ‘It is only logical to limit the
permissible scope of the civil action to the scope of the EEOC
investigation which can reasonably be expected to grow out
of the charge of discrimination.’” Jd. at 730 (quoting Serpe
v. Four-Phase Systems, Inc., 718 F.2d 935, 937 (9th Cir.
1983)).
Here, plaintiff already had been discharged from her
employment when she filed her charge of sexual
discrimination. DSOF, Exh. 7. Plaintiff offers no rationale
whatsoever to indicate why she failed to note retaliation
in the charging document. Plaintiff offers no authority
supporting her contention that retaliation is so closely related
57a
Appendix D
to the type of sexual harassment plaintiff asserted in the
charging document that the EEOC would likely have
expanded its investigation beyond plaintiff’s claim of hostile
environment. Moreover, there is no evidence that the EEOC’s
investigation included retaliation. Thus, plaintiff has not
properly exhausted her retaliation claim. Moreover, even if
the Court found that plaintiff’s retaliation claim had been
exhausted, Lansdale has failed to make out a case for
retaliatory discharge. To make out a prima facie case of
retaliation, Lansdale must show that she acted to protect her
Title VII rights, that an adverse employment action was
thereafter taken and that a causal link exists between these
_ two events. Steiner at 1464. To show the requisite causal
link, the plaintiff must “present evidence sufficient to raise
the inference that her protected activity was the likely reason
for the adverse action.” Cohen v. Fred Meyer, Inc., 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.” Jd. Lansdale has
produced no evidence that she was terminated due to her
complaints of sexual harassment. Lansdale was terminated
by Chalpin. Scott Dalton, the person to whom Lansdale
complained about the perceived harassment, took no action
other than to offer Lansdale advice on how to handle the
situation with Chalpin. It is undisputed that he did not discuss
the matter with Chalpin, or make it known to any other
manager at Hi-Health. Lansdale did not file a complaint with
the EEOC until after she was terminated. Although Lansdale
had confronted Chalpin and told him that his gender-biased
comments offended her, she has not come forth with any
evidence that those complaints were the real reason she was
fired. Lansdale’s claim for retaliatory discharge must fail as
58a
Appendix D
there is no disputed material fact requiring a trial on this
issue and defendants are entitled to judgment as a matter
of law.
Intentional Infliction of Emotional Distress
Plaintiff alleges that she suffered emotional distress as a
result of defendant Chalpin’s sexual and gender-based
comments and behavior. To prevail on a claim of 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 caused severe emotional distress. Lucchesi
v. Frederic N. Stimmell, M.D., Ltd., 716 P.2d 1013, 1015-16
(Ariz. 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 (Ariz. Ct. App. 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 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. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987);
Lucchesi, 716 P.2d at 1015; see also Walls v. Golden Age
Nursing Home, 619 P.2d 1032 (Ariz. 1980) (unjustifiable
delay in failing to notify wife of husband’s terminal illness
Cpe TERR ATS SIE UTEEAD. WEEE GI ne nn tg a pe ee =e : Se Pee ee
59a P
Appendix D
was not outrageous); Duhammel v. Star, 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 plaiatiff does not provide
evidence of outrageous and extreme conduct sufficient to
survive a motion for summary judgment. Chalpin’s behavior
is not similar to the extreme and outrageous behavior alleged
by the plaintiff in Ford v. Revlon, Inc., 253 Ariz. 38, 734
P.2d 580 (1987).
In Ford, a co-worker, Braun, physically assaulted
plaintiff and repeatedly told her that he “wanted to fuck her.”
Id. at 582. Ford had a series of meetings to complain about
Braun’s behavior with management. Management did
not address her complaints for nine months despite her
obvious emotional stress and stated fear of Braun. Ford
developed high blood pressure, a nervous tic, chest pain
and rapid breathing. She eventually made a suicide attempt.
The circumstances in this case are simply not that extreme.
Chalpin’s behavior does not rise to the same level of
_ harassment as Braun’s. Additionally, although Lansdale
sought out Scott Dalton for advice on how to handle Chalpin’s
remarks, she did not seek any action on the part of the
Hi-Health.
Moreover, Lansdale’s reported level of distress does not
rise to that alleged by the plaintiff in Ford. Lansdale has not
obtained any medical of psychological consultation as a result
of her employment experience at Hi Health. DSOF, Lansdale
Deposition at 29. She does allege that she required time off
VEE “2 - Oe
60a
Appendix D
for one sick day due to the stress of working at Hi-Health
and that her sleep has been affected. This is not the type of
distress that reasonable minds could conclude was severe.
Based on plaintiff’s own evidence, the conduct plaintiff
~points to is neither extreme nor outrageous. Additionally,
plaintiff did not suffer severe emotional distress as a result
of the alleged behavior. Summary judgment will be granted
for the defendants on this claim.
Based on the foregoing,
IT IS ORDERED granting in part and denying in part
defendants’ motion for summary judgment. [doc. #46].
Defendants’ motion is denied as to plaintiff’s hostile
environment claim and is granted as to plaintiff’s retaliation-
and intentional infliction of emotional distress claims.
FURTHER ORDERED striking plaintiff’s supple-
mental filings of May 3, 1999 [doc. #67]; May-6, 1999
[doc. #68]; and May 25, 1999 [doc. #70].
FURTHER ORDERED setting a final pretrial conference
for November 1, 1999 at 4:30 p.m.
DATED this 26" day of September, 1999.
s/ Roger G Strand
HONORABLE ROGER G. STRAND
U.S. DISTRICT COURT JUDGE
6la
APPENDIX E — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DENYING PETITION FOR REHEARING
AND REHEARING EN BANC
DATED AND FILED FEBRUARY 21, 2003
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D.C. No. CV-97-02555-RGS
No. 01-16017
JILL LANSDALE,
Plaintiff-Appellant,
VS.
HI-HEALTH SUPERMART CORPORATION,
Defendant-Appellee.
No. 01-16018
JILL LANSDALE,
Plaintiff-Appellee,
VS.
HI-HEALTH SUPERMART CORPORATION,
Defendant-Appellant.
62a
Appendix E
ORDER DENYING PETITION FOR REHEARING
AND REHEARING EN BANC
Before: STAPLETON,' O’SCANNLAIN, and FERNANDEZ,
Circuit Judges.
The panel has unanimously voted to deny the appellant’s
petition for rehearing. The petition for rehearing en banc was
circulated to the judges of the court, and no judge requested
~ a vote for en banc consideration.
The petition for rehearing and the petition for rehearing
en banc are DENIED.
1. The Honorable Walter K. Stapleton, Senior United States
Circuit Judge for the Third Circuit, sitting by designtion.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.