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January 24, 2001


The opinion of the court was delivered by: Spero, United States Magistrate Judge.



Defendants filed a Motion For Summary Judgment Or, In The Alternative, Motion For Partial Summary Judgment ("the Motion") on October 27, 2000. For the reasons stated below, Defendants' Motion is DENIED.


Plaintiff Del Erdmann, a Caucasian male homosexual, alleges that his employer, Tranquility Inc. (d.b.a. San Miguel Villa), and Velda Pierce (who owns and operates San Miguel Villa) discriminated against him based upon religion and sexual orientation. Specifically, he alleges that Velda Pierce, who is a member of the Church of Jesus Christ of Latter-Day Saints ("Mormon Church"), discriminated against Plaintiff and created a hostile and abusive work environment based on religion — namely, her belief that homosexuality is immoral. He further alleges that Pierce's conduct gave rise to his constructive discharge.

A. Facts*fn1

1. Erdmann's Employment History With San Miguel Villa

In August 1997, Plaintiff Del Erdmann interviewed for a job with San Miguel Villa. Plaintiff's Statement of Disputed Issues in Support of Opposition at 1. The interview was conducted by Velda Pierce, whose son was also present at the interview. Deposition of Del K. Erdmann ("Erdmann Depo.") at 28, Exh. 1 to Declaration of Wendy A. Moss in Support of Defendant's Motion For Summary Judgment ("Moss Decl.").*fn2 In the interview, Pierce asked Plaintiff, whose previous job was in New York, why he had returned to the San Francisco Bay area. Id. at 22, 28-29. Plaintiff explained that his "significant other" had relocated to the Bay Area and so he had decided to relocate as well. Id. at 29. It is undisputed that Pierce was of the opinion at the time of the interview that Plaintiff was a homosexual. See Plaintiff's Statement of Disputed Issues In Support of Opposition To Defendant's Motion For Summary Judgment at ¶ 4.*fn3 At the end of the interview, Pierce offered Plaintiff the position of MDS coordinator, and Plaintiff accepted the offer. Erdmann Depo. at 31-32, Exh. 1 to Moss Decl.

Until November 1998, Plaintiff was "very happy" in his employment with San Miguel Villa. Id. at 84. In June 1998, Erdmann was promoted to the position of Assistant Director of Nursing and received a salary increase. Id. at 63. This promotion was recommended by Robert Pritchard, the director of nursing at that time, and approved by Velda Pierce. Id. at 69; see also Pierce Depo. at 52, Exh. 2 to Declaration of Henry Y. Ku In Support of Opposition To Defendant's Motion For Summary Judgment/Summary Adjudication ("Ku Decl."); Deposition of Robert Allen Pritchard ("Pritchard Depo.") at 11, Exh. 3 to Ku Decl. In his new position, Plaintiff worked as Mr. Pritchard's assistant. Erdmann Depo. at 69, Exh. 1 to Moss Decl.

As an employee at San Miguel Villa, Plaintiff did not try to keep his sexual orientation a secret. Erdmann Depo. at 59, Exh. 1 to Ku Decl. On the other hand, aside from a few co-workers with whom he occasionally socialized outside of work, Plaintiff did not tell his co-workers that he was gay. Id. at 60-61. Nor did he tell Velda Pierce or his immediate supervisor, Robert Pritchard, that he was gay, although both were aware that he was gay. Id. at 58-60; Pierce Depo. at 69-70, Pritchard Depo. at 30, Exh. 3 to Ku Decl.

2. Joseph Alagon

Sometime before November 11, 1998, Joseph Alagon, a registered nurse "with more supervisorial duties than other nurses" employed by San Miguel Villa, told Robert Pritchard that he was uncomfortable with Plaintiff's conduct. Pritchard Depo. at 33-34, Exh. 3 to Ku Decl. Alagon told Pritchard that while Pritchard was absent from work due to a serious illness, Plaintiff had asked Alagon to come in to his office to discuss how Plaintiff and Alagon could work together to cover for Pritchard in his absence. Id. at 33. Alagon was particularly uncomfortable with the fact that Plaintiff had closed the door to his office at the beginning of this meeting. Id. at 34. Alagon also told Pritchard that Plaintiff had approached him more than once to ask him if he needed help. Id. at 33. The first time Plaintiff asked, Alagon declined Plaintiff's offer. Id. The second time Plaintiff offered assistance, Alagon said something like "I don't want your help, I told you before" and "please leave me alone." Id. When Pritchard asked Alagon whether he felt that he had been "harassed," Alagon said that he did not, but that he felt uncomfortable with Plaintiff's conduct. Id. at 35. Alagon and Pritchard did not discuss Alagon's feelings about homosexuals during this conversation. Id. at 37. Apparently, Alagon stopped coming to work after this meeting. See Pierce Depo. at 92, Exh. 2 to Ku Decl.

Following the discussion between Pritchard and Alagon, Pritchard informed Velda Pierce of his conversation with Alagon. Id. at 36. He and Pierce agreed that Alagon's reluctance to work with Plaintiff was not good for teamwork and that they should try to resolve the problem by having a meeting with both Plaintiff and Alagon present. Id. at 37. Sometime thereafter, Pierce had a telephone conversation with Alagon in which she asked him to come in to discuss his continued employment with San Miguel Villa. Pierce Depo. at 87, Exh. 2 to Ku Decl. On November 12, a meeting was held in which Plaintiff, Alagon, Pierce and Pritchard participated (see below).

3. November 11 Meeting

In the meantime, on November 11, Plaintiff asked to talk to Velda Pierce. Erdmann Depo. at 75, Exh. 1 to Ku Decl. According to Plaintiff, he had been told by a co-worker that another co-worker had said that Plaintiff had said Pierce only hired "drunks and drug addicts as nurses." Id. at 76. Plaintiff went to Pierce's office to tell her about the statement and let Pierce know that Plaintiff had not made such a statement. Id. at 77. During the course of the conversation, Pierce told Plaintiff that "some people are troublemakers and they may be friends to your face but they're going to stab you in the back." Id. at 78. Plaintiff responded by mentioning the incident that had occurred with Joseph Alagon, when Alagon told Plaintiff to leave him alone. Id. He told Pierce, "Well, it's kind of the way Joseph Alagon was then. He was real nice to me and then all of a sudden I asked him if he needed help and he screamed back at me." Erdmann Depo. at 78, Exh. 1 to Ku Decl. At that point, Pierce began to discuss Plaintiff's homosexuality. Id.; see also Pierce Depo. at 76, Exh. 2 to Ku Decl. (describing meeting with Plaintiff in which Pierce told Plaintiff that she believed homosexuality was immoral and that when Plaintiff died, "he would go before the Lord and the Lord would question his homosexual ways."). According to Plaintiff, Pierce told Plaintiff that it is "immoral" to be a homosexual, and that he should become heterosexual and a Mormon or he would go to hell. Id. According to Pierce, Plaintiff was "tearful" during this meeting and told her he did not want to discuss the subject, then walked out of her office. Pierce Depo. at 77, Exh. 2 to Ku Decl. On the same day, Plaintiff told his supervisor, Robert Pritchard, about the meeting. Erdmann Depo. at 80, Exh. 1 to Ku Decl.

4. November 12 Meeting

On November 12, Velda Pierce called Pritchard and instructed him to bring Plaintiff to her office for a meeting with Joseph Alagon. Pierce Depo. at 88, Exh. 2 to Ku Decl. Alagon was already in Pierce's office when Plaintiff and Pritchard arrived. Id. Pierce then began to talk to Alagon and Plaintiff. Id. Plaintiff describes the meeting as follows:

She said . . . "I'll start this meeting. Joseph is coming back to work here. And one of the reasons the problems had arised was that Joseph listened to gossip and after finding out that — at first he really thought you were a wonderful guy, very helpful and nice, but then after he found out you were homosexual then that changed everything because how we view homosexuals as immoral, indecent and they just want to be promiscuous and go to bed with everybody. And you had never told him you were involved in a monogamous relationship of three years," which then I corrected her, of seven, "and that you just better stay in that monogamous relationship or else something bad is going to happen to you." "And then she directed me to go out and tell all the employees of San Miguel Villa — that I need to go tell everybody that I'm a homosexual and I'm involved in a monogamous relationship and that I don't want to go to bed with everybody where I work, because if I — I need to tell everybody those kinds of things."

Erdmann Depo. at 98-99, Exh. 1 to Ku Decl. Pierce then instructed Plaintiff and Alagon to shake hands. Id. at 101. Plaintiff complied because "Mrs. Pierce is the boss, the owner" and he was "scared of losing [his] job." Id. at 102. It was evident to Pierce, however, that Plaintiff was "very angry." Pierce Depo. at 96, Exh. 2 to Ku Decl. The two shook hands, but Alagon never came back. Pierce Depo. at 96, Exh. 2 to Ku Decl.

Plaintiff resigned the following day, on November 13. Erdmann Depo. at 121, Exh. 1 to Ku Decl. 121. He did not tell Pierce the reasons for his resignation. Id. at 123. However, he stated in his deposition that it was clear to him that she knew "exactly why [he] was quitting," namely, that he was "being persecuted for being a homosexual and [he] ...

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