Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding, D.C. No. 2:04-CV-02954-SMM.
The opinion of the court was delivered by: Wallace, Senior Circuit Judge
Argued and Submitted January 12, 2010 -- San Francisco, California
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace, Circuit Judge, and William H. Alsup, District Judge.*fn1
Gregory Hawn, Michael Prince and Aric Aldrich (collectively, plaintiffs) appeal from the district court's summary judgment in favor of their former employer, Executive Jet Management (Executive Jet). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Plaintiffs are male pilots who were employed by Executive Jet, which is in the business of aircraft management and charter operations. All of the plaintiffs were terminated after a female flight attendant, Robin McCrea, alleged that plaintiffs had sexually harassed her and created a hostile work environment through an array of conduct including sexualized banter, crude jokes, and the sharing of crude and/or pornographic emails and websites. According to plaintiffs, however, McCrea was an active participant in, or initiator of, much of the conduct of which she accused them. Plaintiffs contend that their terminations were illegal because McCrea and other Executive Jet female flight attendants engaged in similar conduct but were not terminated because they were females.
Plaintiffs and McCrea were stationed at Executive Jet's base at Williams Gateway Airport in Arizona. On January 6, 2003, McCrea complained to her immediate supervisor, Amy Jackson, that Aldrich had behaved inappropriately during a training seminar a few days earlier. Jackson reported the com- plaint to Executive Jet's Human Resources Director, Cynthia Brusman. On January 10, 2003, McCrea faxed a letter to Brusman that stated she had experienced a hostile work environment at the Williams Gateway base and requested a transfer.
In response, Executive Jet's Chief Pilot, Michael Chakerian, interviewed McCrea, Aldrich, Prince, and several other Executive Jet employees. Chakerian submitted the results of his interviews in a written report to Executive Jet. Chakerian's report reflected that Prince and Aldrich were "shocked" by McCrea's allegations because she had participated in, and often encouraged, the banter and joking of which she complained. Chakerian's report also reflected that another male pilot stationed at the Williams Gateway base was similarly surprised by McCrea's allegations. A female flight attendant interviewed by Chakerian described McCrea as short-tempered, aggressive, and negative. A female pilot interviewed by Chakerian similarly described McCrea as personally insecure and moody, and also described McCrea as flustered during the training exercise. Both this female pilot and the female flight attendant implied to Chakerian that McCrea's allegations may have been motivated by her desire for a transfer to a different Executive Jet base.
On January 14, 2003, McCrea faxed another letter to Brusman. This time, McCrea attached a twelve-page document that detailed her allegations against Aldrich stemming from the training seminar. This document also contained new allegations of sexual harassment against Aldrich, Prince, Hawn, and others. Following receipt of these new and more detailed allegations, Executive Jet hired an independent investigator, James Sterling, to look into McCrea's accusations. This investigation lasted approximately two months. In the meantime, on January 27, 2003, McCrea filed a discrimination charge against Executive Jet with the United States Equal Employment Opportunity Commission (EEOC).
Around March 31, 2003, Sterling's report was submitted to Executive Jet. In the "Synopsis" of his report, Sterling stated:
The results of this investigation indicate that there have been confirmed instances of a few of the behaviors indicated in Ms. McCrea's document of complaint. However, there are also a greater number of incidents that she has alleged happened that have been unconfirmed, denied or told to me in a different light, implying that Ms. McCrea either participated in the actions or in some instances initiated them.
In the concluding "Summary" of his report, Sterling stated that "[t]hroughout the duration of this investigation, I have continually found there to be some items in Ms. McCrea's document of complaint to be verified." Sterling continued, "in the same vein, I must say that there have been numerous items, which have not been corroborated by this investigation." He concluded: "The bottom line is that there appears to be some fact as well as some fiction interwoven throughout Ms. McCrea's document of complaint.... To conclude this investigation I believe that the company will have to 'sift the wheat from the [chaff],' in Ms. McCrea's document of complaint...."
On April 18, 2003, all three plaintiffs were terminated. A few months later, in July 2003, the EEOC issued a determination of the merits of McCrea's complaint, finding in part that "the evidence revealed that Respondent fostered a hostile work ...