Once the moving party demonstrates that there is no genuine issue of material fact, the nonmoving party must designate "specific facts showing that there is a genuine issue for trial." Id. at 324. The nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
The adjudication of a summary judgment motion is not a "trial on affidavits." Anderson, 477 U.S. at 255. Credibility determinations and weighing of the evidence are solely jury functions. Id. Inferences drawn from underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)). However, there may be no genuine issue of material fact if "the evidence is of insufficient caliber or quantity to allow a rational finder of fact" to find for the nonmoving party. Anderson, 477 U.S. at 254.
Summary judgment is appropriate in this case. First, the undisputed facts demonstrate that, as a matter of law, Durazo is not a management employee whose alleged knowledge of the harassment can be imputed to her employer. Second, Plaintiff has failed to offer facts demonstrating a genuine issue for trial concerning the date of Durazo's knowledge of the alleged harassment. Third, the uncontroverted facts show that HCS responded promptly and appropriately to Plaintiff's complaint of sexual harassment.
1. The Title VII Claim
Title VII of the 1964 Civil Rights Act prohibits sex discrimination in employment. 42 U.S.C. § 2000e-2(a)(1). This prohibition extends to sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 73, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). The Supreme Court has held that under Title VII, employers can be held liable for the acts of sexual harassment by their employees that create a "hostile work environment." See Vinson, 477 U.S. at 72. To establish employer liability under this theory, a plaintiff must establish that he or she was subjected to a hostile work environment, that the employer knew or should have known of the harassment, and that the employer failed to appropriately remedy the problem. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995), EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir. 1989).
The Court will assume for the purposes of this motion that Livingston's conduct created a hostile work environment.
"However, even if a hostile working environment exists, an employer is only liable for failing to remedy harassment of which it knows or should know."
Fuller, 47 F.3d at 1527.
a. As a matter of law, Durazo is not a management-level employee whose knowledge of the harassment can be imputed to HCS
Plaintiff alleges in her deposition testimony that Durazo, a senior fraud investigator, had knowledge that Livingston was bothering Plaintiff as early as September 1994, approximately one month before any manager had knowledge of the harassment. Therefore, the question confronting the court is whether Durazo is a "management-level employee" under Title VII whose knowledge of the alleged harassment can be imputed to HCS.
The term "management-level employee" has not been clearly defined under Title VII. In Vinson, 477 U.S. at 72, the Supreme Court declined to issue a definitive rule on employer liability for harassment resulting from an abusive or hostile environment in the workplace, but directed courts to look to agency principles, at least where the alleged harassment is perpetrated by a supervisor.
The co-worker harassment cases that have followed Vinson have imputed knowledge to employers in several different contexts. Courts consistently impute knowledge where the person receiving notice of harassment is a supervisor or manager possessing substantial authority to hire, fire, promote, or discipline employees. Hacienda Hotel, 881 F.2d at 1516 (imputing knowledge to employer where housekeeping supervisor had authority to hire, discharge, and discipline the sexually harassed employees); Hall v. Gus Const. Co., 842 F.2d 1010 (8th Cir. 1988)(imputing to employer knowledge of construction foreman who had hired the plaintiffs to work as traffic controllers at various road construction sites)
; Guy v. Day Products, Inc., 1995 U.S. Dist. LEXIS 17620, 67 Empl. Prac. Dec. (CCH) 43,874, 84,381, 84,386 (E.D. Pa. 1995)(refusing to impute knowledge of third-highest ranking executive because he lacked authority to hire and fire).
A mere title of "manager" or "supervisor" does not by itself suffice to impute that employee's knowledge or actions to the employer. Ulrich v. K-Mart Corp., 858 F. Supp. 1087, 1093 (D. Kan. 1994)(holding employer not liable for allegedly harassing activities of an employee who had title of "loss control manager" but lacked authority to hire, fire, discipline, control employees' wages, or control employees' schedules); Countryside Assoc. for the Handicapped, Inc., 723 F. Supp. 1277, 1278 (C.D. Ill. 1989) (holding that alleged harasser, whose title was "client supervisor," did not have the kind of supervisory powers necessary to impute his conduct to the employer: alleged harasser lacked authority to hire, promote, fire or discipline).
In a narrow set of circumstances, courts will also attribute a non-manager's knowledge to an employer. For example, the clock starts running on employer liability when notice is given to certain employees, who may or may not have any management-level authority, but who have responsibility for relaying sexual harassment complaints pursuant to an express policy promulgated by the employer. Campbell v. Board of Regents of the State of Kansas, 770 F. Supp. 1479, 1487-88 (D. Kan. 1991). Similarly, employer liability also kicks in when an employee complains of co-worker harassment to a non-management employee who has general responsibility for passing employment-related complaints up the corporate hierarchy. Llewellyn v. Celanese Corp., 693 F. Supp. 369, 380 (W.D. N.C. 1988)(employer deemed on notice when dispatcher received sex harassment complaint from a female truck driver). In addition, knowledge of a low-level supervisor will be imputed to the employer where the supervisor was the only convenient avenue through which to lodge the complaint. Morris v. American National Can Corp., 730 F. Supp. 1489, 1496 (E.D. Mo. 1989). Courts have also imputed to employers knowledge of non-managerial employees who exercise substantial control over workplace conditions. See, e.g., Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1492-93, 1512, 1530 (M.D. Fla. 1991)(imputing knowledge to employer where quartermen and leadermen with knowledge of harassment exercised apparent authority to respond to complaints of sexually harassment, were often the most senior people in a work area, acted as conduits for the relay of complaints to higher management, and received explicit instructions concerning their authority to exercise discretion to control the work environment).
However, just because one employee holds a more senior position than another does not necessarily qualify him or her as a supervisor or manager whose knowledge or acts can be imputed to the employer. The Fourth Circuit found no employer liability under Title VII for a pilot's acts toward a flight attendant because the pilot had no authority to hire, fire, promote or demote flight attendants. Swentek v. US Air, Inc., 830 F.2d 552, 557-58 (4th Cir. 1987). In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715-16 (2d Cir. 1996), the Second Circuit refused to impute to the employer notice given to a low-level supervisor who worked outside of the plaintiff's department. The Second Circuit adheres to a general rule that for the knowledge of a supervisor to be imputed to the company, that supervisor must be "at a sufficiently high level in the hierarchy of the company. See Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994), cert. denied, 512 U.S. 1213, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994). However, other circuits tend to attribute to employers knowledge where employees report harassment to a superior in his or her chain of command. See, e.g., Waltman v. International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989)(reversing summary judgment for employer on issue of notice where plaintiff thrice reported incidents to higher management, including her in-line supervisor).
Taken as a whole, the cases demonstrate that for purposes of Title VII, "management-level employees" encompass two groups of persons: first, supervisors possessing substantial authority and discretion to make decisions concerning the terms of the harasser's or harassee's employment; and second, non-management employees charged with substantial responsibility for relaying employee complaints to management, particularly where management is located away from the workplace. If a co-worker has knowledge of a harassee's complaint, but that co-worker lacks authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the harassee's employment, the co-worker's inaction does not spark employer liability unless that co-worker has an official or strong de facto duty to act as a conduit to management for complaints about work conditions. On the other hand, if an employee with knowledge of harassment possesses the authority to make discretionary employment decisions concerning the harasser or harassee, employers may be liable if that employee fails in his or her responsibility to take appropriate action.
In the present case, the uncontroverted facts show that Durazo had no authority to use her independent judgment on matters affecting the terms and conditions of Plaintiff's, or anyone else's, employment. Durazo had no authority to hire, fire, or discipline employees, or recommend such action. Durazo had no control over wages paid to HCS employees, nor did she participate in recommending or approving pay increases. The only supervisory duties performed by Durazo involved one of two things: Durazo had greater authority than Plaintiff concerning customer-related matters; and Durazo presided over a limited set of purely ministerial employee training and monitoring which required no independent judgment on her part. In addition, although Plaintiff characterizes Durazo as a "work flow supervisor," the attribution of this pseudo-title cannot trump the fact that Durazo had no discretionary control over the terms and conditions of Plaintiff's or Livingston's employment.
In addition, Plaintiff has made no showing that Durazo had either an official or strong de facto duty to act as a conduit to management for complaints about work conditions. Furthermore, since Plaintiff's manager, Morris, worked in the same general area as Durazo and Plaintiff, Plaintiff cannot argue that Morris's inaccessibility compelled her to resort to complaining to Durazo.
Accordingly, Durazo's purported knowledge of a hostile work
b. HCS received notice of the sexual harassment on October 24, 1994
Even if Durazo was a management-level employee whose knowledge could be imputed to HCS, Plaintiff's deposition testimony that she complained to Durazo about sexual harassment prior to October 24, 1994, which contradicts her sworn EEOC testimony, fails to create genuine issue of material fact as to the timing of notice to HCS.
A party normally will not be able to defeat summary judgment with an affidavit that directly contradicts that party's earlier affidavit or sworn testimony, unless the affidavit is accompanied by a credible explanation for the contradiction. Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir. 1988); Martin v. Merrell Dow Pharmaceuticals, 851 F.2d 703, 706 (3d Cir. 1988). The Ninth Circuit recently reaffirmed this well-established principle in the case of Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).
In June 1995, before filing this case, Plaintiff signed two sworn documents with the EEOC alleging that she first complained to HCS management of the sexual harassment on October 24, 1994. She specifically indicated that Cheryl Durazo was on notice as of October 24, 1994. In addition, in an unsworn letter written to her attorney dated January 14, 1996, she identified October 24, 1994 as the date Durazo and Morris were on notice of the alleged harassment. Plaintiff's Complaint, filed in October 1995, does not identify a date on which management allegedly had notice. It was in May 1996 that Plaintiff changed her story, claiming that Durazo was on notice that Livingston was harassing her as early as September 26, 1994.
In Kennedy, the Ninth Circuit upheld a grant of summary judgment because plaintiff's contradictory deposition testimony could not create a genuine issue of material fact. The court held:
This deposition testimony flatly contradicts both her prior sworn statements and the medical evidence. [footnote omitted] As such, we conclude her deposition testimony does not present "a sufficient disagreement to require submission to a jury."
Id. at 1481.