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January 28, 1997

MARIA R. LAMB, Plaintiff,

The opinion of the court was delivered by: WILLIAMS


 HCS is in the business of marketing and servicing credit cards. In September 1989, HCS hired Plaintiff as an assistant fraud investigator in the Fraud Department, which is charged with detecting fraudulent credit card use. The Fraud Department was divided into several units. Each unit included 10 to 20 assistant fraud investigators and one or more senior fraud investigators. Cheryl Durazo was a senior fraud investigator in Plaintiff's unit. At the time of the alleged harassment, John Morris was the unit manager, to whom all assistant and senior fraud investigators reported, including Plaintiff and Durazo. Morris reported to a section manager, Christopher Tracy, who in turn reported to the prevention manager, Mark Suto.

 As a senior fraud investigator, Durazo had job duties that set her apart from the pool of assistant fraud investigators. Durazo handled the more difficult client telephone calls and answered other fraud investigators' questions about customer accounts. When a telephone customer asked to speak with a "supervisor," the assistant fraud investigators would forward their calls to Durazo. Plaintiff and some of her colleagues considered Durazo a "work flow supervisor."

 Durazo also had some employee training and monitoring responsibilities. She often was responsible for recording employees' arrival and departure times, information later used by Morris in employee annual evaluations. Durazo had the authority to clear entrance into the secured building when an employee had forgotten a security clearance card. At Morris's direction, Durazo prepared and co-signed award certificates presented to employees based on their objective performance statistics. Durazo delivered to some employees monthly "coachings," in which she reported an employee's previous month's fraud statistics and phone quality scores. Morris reviewed and approved these reports before Durazo delivered them.

 Durazo had no independent authority to hire, discipline, promote or discharge employees. Morris never asked for Durazo's opinion of the work performance of employees in his unit. Although fraud clerks would sometimes submit requests for time off through Durazo, she had to forward these requests to Morris for approval.

 In August 1994, Suthichai Livingston, a former HCS security guard, joined Morris's unit as an assistant fraud investigator. Prior to hiring Livingston, HCS conducted a background investigation on Livingston, which included checks of Livingston's prior employment and personal references, as well as a criminal record check. HCS uncovered no derogatory information.

 Plaintiff alleges that starting on September 26, 1994, Livingston began touching her shoulders, arm, and hair, and bumping against the back of her chair with his body. She testified that Livingston did this several times a day. Plaintiff also alleges that Livingston had grabbed her waist and touched her breast. Plaintiff alleges that she told him on many occasions to go away and leave her alone.

 In Plaintiff's sworn Equal Employment Opportunity Commission ("EEOC") charge and affidavit, she alleged that she first complained to HCS about Livingston's conduct on October 24, 1994. Plaintiff was represented by counsel at the time she filed the EEOC charges. Specifically, on or about June 20, 1995, she filed a sworn EEOC charge asserting that "On October 24, 1994, I complained to management and no corrective action was taken." At the same time, she stated in a sworn EEOC affidavit: "On October 24, 1994. (sic) I complained to Mr. Joe Corina, Work Flow Supervisor, and Ms. Cheryl Durazo, Work Flow Supervisor, and no immediate corrective action was taken." Plaintiff also identified October 24, 1994 as the date Durazo and Morris were on notice of the alleged harassment in an unsworn letter written to her attorney dated January 14, 1996.

 However, in her May 1996 deposition testimony, Plaintiff claimed for the first time that Durazo had notice of the harassment as early as September 26, 1994. Plaintiff claims that she and Durazo sat very close to each other at work, and that Durazo watched when Livingston touched and bothered Plaintiff. Plaintiff further claims in her deposition testimony that she constantly complained to Durazo that Livingston was "bothering" her, and that Durazo repeatedly told Livingston to go back to his workstation. Durazo denies that she saw any inappropriate behavior on the part of Livingston until after Plaintiff complained on October 24, 1994. One of Plaintiff's coworkers, Elizabeth Archuleta, testified that she herself was aware Livingston bothered Plaintiff.

 On October 24, 1994, Durazo, after being told of the harassment by Plaintiff, reported Plaintiff's complaint to Morris. Plaintiff also complained directly to Morris. Within one hour of Plaintiff's complaint, Morris met with Livingston. Without mentioning Plaintiff by name, Morris counseled Livingston regarding his behavior. Morris instructed Livingston that his behavior was inappropriate and must stop. Morris told Livingston that he would be further disciplined if he continued to engage in any inappropriate conduct. Livingston admitted to Morris that he had touched women in the unit, but that he was not aware that he was offending or bothering anyone. He agreed to stop touching his coworkers.

 The following day, October 25, Livingston approached Plaintiff, touched her, and kicked her chair. While he did this, Livingston boasted to Plaintiff that he had been instructed not to touch or bother her.

 The following day, October 26, Plaintiff asked Durazo to arrange a meeting with three HCS managers, Morris, Tracy, and Suto, to discuss her complaint about Livingston. That same morning, Plaintiff complained to Tracy about Livingston's conduct. Within an hour, Tracy had arranged for Plaintiff to meet at 10:30 that morning with Corinne Lopez-Allen, a Human Resources representative. In addition, pending the arrival of Lopez-Allen, Morris met with Livingston and instructed him not to approach Plaintiff or walk down her aisle under any circumstances.

 Lopez-Allen did not arrive for the meeting with Plaintiff at the scheduled time. Shortly thereafter, Tracy contacted HCS's Director of Human Resources, Alan Movson, to determine the course of action to be taken. Movson immediately launched an investigation into Plaintiff's allegations, and revoked Livingston's access to HCS's facilities. The next day (October 27, 1994), Movson placed Livingston on an administrative leave of absence, pending the investigation. On October 28, based on the finding in the investigation that Livingston had continued his inappropriate behavior after having been counseled, HCS terminated Livingston's employment.

 Plaintiff left on a disability leave on October 27, 1994. She remained on leave until she resigned from HCS on April 17, 1995. She filed this suit on October 26, 1995, alleging employment discrimination in the form of "hostile environment" sexual harassment under Title VII, 42 U.S.C. 2000e, et seq., in addition to state law claims of tortious ratification, tortious authorization, negligent hiring and negligent retention.


 To defeat HCS's motion for summary judgment, Plaintiff must show that there is a genuine issue of material fact as to each element of her claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is granted when there is no genuine issue as to any material fact and that moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

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