A. Summary Judgment Motion
1. Legal Standard
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(e).
In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 435 (1986).
A moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side's evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence. T.W. Electrical, 809 F.2d at 630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d at 1103-04.
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991).
The evidence the parties present must be admissible. Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See. e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial. The standard for judging a motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
2. Wage Discrimination Claim
Title VII prohibits wage rate discrimination based on sex. 42 U.S.C. § 2000e-2(a)(1). Defendant argues that summary judgment should be granted as to plaintiff's wage discrimination cause of action because plaintiff can present no admissible evidence supporting this claim. Defendant contends that plaintiff's wage discrimination claim is based solely on an alleged disparity between her salary and the salary of male ministers within the BCA. Based on a statement contained in this Court's January 19, 1995 order, defendant argues that evidence of the salaries of BCA ministers is inadmissible to support this claim. As such, defendant claims that summary judgment is appropriate.
In response, plaintiff argues that her wage discrimination claim is supported by the following evidence: (1) plaintiff's position was budgeted at an annual salary of $ 24,700; (2) the $ 24,700 figure was chosen with the specific intent that the director's salary would be equivalent to the salary of the Bishop's executive assistant; (3) Bishop Yamaoka told plaintiff Himaka that she would not be paid the $ 24,700 because the male executive assistant's "feelings would be hurt;" and (4) plaintiff started at $ 20,000 and never reached the same salary as that of the Executive assistant. Pl. Memo in Opp. at 23-24; Declaration of Himaka at 3.
In the January 19, 1995 order, this Court stated that "a comparison between plaintiff's salary and the salary of male ministers with the BCA would be improper, as infringing on the church's autonomy in an area of prime ecclesiastical concern." The only other evidence plaintiff offers is the statement of Bishop Yamaoka. Standing alone, the Bishop's statement that "Mr. Fukuma's feelings would be hurt," does not indicate wage discrimination on the basis of plaintiff's gender. Thus, plaintiff has failed to meet her burden of submitting admissible evidence sufficient to defeat summary judgment on this claim.
Plaintiff argues that the decision on this issue should be delayed under Rule 56(f) until further discovery is conducted. It seems unlikely, however, that plaintiff will uncover evidence to support her wage discrimination claim which does not implicate the "prime ecclesiastical" concerns of the BCA in church administration and governance. As such, any additional evidence that plaintiff might discover would also be inadmissible under this Court's January 19, 1995 Order. Accordingly, summary adjudication of this claim is appropriate.
3. Quid Pro Quo Sexual Harassment Claim
To prove quid pro quo sexual harassment, a plaintiff must show by a preponderance of the evidence that she was forced to choose between an economic loss or an economic benefit by submitting to the sexual demands of a person within the employer's organization who is in a position to affect her employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).
Defendant argues that plaintiff could not have suffered quid pro quo harassment because Shinseki did not hold any position where he had the power to affect the terms of plaintiff's employment with BCA. Defendant also argues that, even if Shinseki held such a position, the contents of the allegedly harassing telephone call could not be construed as conditioning job benefits upon plaintiff's submission to Shinseki's sexual demands.
In response, plaintiff argues that her action for quid pro quo harassment is based upon "the defunding of her department because of her refusal to quietly allow Shinseki to 'talk dirty' to her." She claims that, based on the evidence submitted, a jury could reasonably conclude that her employment was conditional upon allowing this "sexual favor." Pl. Memo in Opp. at 23.
Plaintiff Himaka fails to submit any evidence of a causal connection between the defunding of her department and the allegedly harassing phone call by Shinseki. She does not submit any evidence that Shinseki was involved in the decision to defund her department, or had any influence over the decision at all. Instead, she argues that the action was taken by other members of the BCA organization in retaliation for her filing this suit. A quid pro quo action, however, is premised upon coercive sexual conduct. Without evidence that BCA's retaliation in defunding plaintiff's department was somehow influenced by Shinseki, plaintiff cannot present a prima facie case of quid pro quo harassment. Because plaintiff fails to submit evidence of this connection, summary judgment for defendant on this claim is appropriate.
4. Hostile Work Environment Claim
To support a hostile work environment cause of action, a plaintiff must show that: (1) she was subject to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991); see also Meritor, 106 S. Ct. at 2404-05; E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514-15 (9th Cir. 1989). Defendant argues that plaintiff has not alleged conduct of a sexual nature which was "sufficiently severe or pervasive" to create an abusive working environment.
a. Hostile Environment Standard
In response, plaintiff first argues that whether the particular conduct and facts at issue rise to the level of a "hostile environment" is peculiarly a jury question. Contrary to plaintiff's argument, however, the Supreme Court has ruled that the working environment must be perceived as abusive both subjectively and objectively. Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993). The Harris requirement of an "objectively" abusive working environment renders this issue susceptible to summary judgment.
b. The Alleged Sexual Harassment