The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
The instant litigation arises from a public enforcement action filed by the Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") against Sierra Pacific Industries ("Defendant"). Moreover, Ahmed Elshenawy ("Elshenawy" or "Plaintiff"), the individual on whose behalf the EEOC is acting, has brought his own Complaint in Intervention in this matter.
Now before the Court is a Motion for Partial Summary Judgment, brought by Defendant in accordance with Federal Rule of Civil Procedure 56, seeking to dismiss as legally insufficient claims made by both the EEOC and Elshenawy for retaliation under Title VII of the Civil Rights Act of 1964. Defendant also seeks dismissal of similar retaliation claims made by the Complaint in Intervention pursuant to the California Fair Employment and Housing Act ("FEHA").*fn1 For the reasons set forth below, Defendant's Motion will be denied.
Defendant hired Plaintiff Elshenawy, an Egyptian Muslim, on July 28, 2000 to work at its Red Bluff, California Millwork Division. Defendant terminated Plaintiff on April 9, 2004 for allegedly violating Defendant's "no tolerance" sexual harassment policy.
Through this lawsuit, Elshenawy makes various allegations, including the claim that his termination was actually in retaliation for his complaints of alleged harassment on account of national origin.
According to Elshenawy, after the September 11, 2001 terrorist attack he began to experience increased incidents of such harassment, which he contends included being called a "camel jockey" and a "stupid Egyptian" by two co-workers, along with a vulgar epithet referring to him as an "Arab".
In June of 2002, Plaintiff was accused of making a sexually harassing remark to another employee, Alfonso Sanchez. As a result, he received a written reprimand. Then, on or about December 29, 2003, Plaintiff received a second disciplinary write-up for purportedly making an offensive sexual gesture to yet another co-worker, Javier Villagomez-Diaz, despite the fact that the investigating supervisor never conclusively determined whether or not the gesture was indeed sexual in nature. See SUF 9.
After the December 2003 incident, Plaintiff asked to speak with SPI Division Manager Greg Thom about what had transpired. Defendant's Vice President of the Millwork and Window Division, Kendall Pierson, also participated in the January 5, 2004 meeting that resulted. Plaintiff's wife, Rebekah Elshenawy, was in attendance as well. During the course of the meeting, it appears undisputed that Plaintiff voiced concern about losing his job. The accounts of what transpired, however, diverge at that point. While Thom and Pierson allege that Plaintiff never brought up the question of national origin harassment during the course of the meeting, Plaintiff and his wife claim just the opposite. According to Plaintiff, he complained that he was being harassed and being called names like "Osama", "Bin Laden", and "Saddam". See EEOC's Ex. 16, Dep. of Ahmed Elshenawy, 56:6-15, 57:19-24, 58:11-20; Ex. 17; Dep. of Rebekah Elshenawy, 9:14-22.
Moreover, both Plaintiff and his wife also claim that Mr. Pierson, the highest ranking officer in the particular plant where Plaintiff was employed, indicated in response that if Elshenawy continued to complain rather than tolerate the situation, his job could be in jeopardy. See Rebekah Elshenawy Dep., 9:9-13; Ahmed Elshenawy Dep., 33:1-7. While Thom and Pierson deny that the subject of alleged harassment ever came up during the course of the meeting, Defendant's Human Relations Manager, Tracey Moore, indicated in subsequently prepared notes that Plaintiff had in fact complained to Pierson about derogatory comments being made in reference to his nationality and religion. See EEOC's Ex. 18, Ms. Moore's Notes to File dated April 7, 2004.*fn2
On April 3, 2004, less than three months after the aforementioned January 5, 2004 hearing, Plaintiff was accused by co-worker Andrea Black of making a lewd gesture with a lumber crayon attached to his pants. Although Plaintiff claimed that in swinging the crayon he merely intended to inquire whether the crayon belonged to another employee, and denied that any sexual connotation was involved, Plaintiff was immediately suspended for four shifts as a result of the incident and was told to report back to work on April 9, 2004, after an investigation had been concluded, and after a determination had been made as to whether further disciplinary action, including potential termination, was indicated.
On April 5, 2004, Plaintiff drove to Defendant's main office in Anderson, California, and asked to speak to Defendant's owner, George Emmerson. Defendant's Personnel Manager, Tracy Moore, met with Plaintiff after telling him that Emmerson was unavailable. Plaintiff proceeded to tell Moore that he was being unfairly accused of sexual harassment that in fact was attributable to his national origin. Moore proceeded to set up a meeting with Greg Thom to discuss the matter. That meeting took place on April 7, 2004, and according to Plaintiff, he again aired his complaints of national origin harassment.
In the meantime, on April 6, 2004, Elshenawy sent a certified letter to George Emmerson asking for help and delineating the following complaints:
Almost on a daily basis I am confronted with derogatory comments in regards to my beliefs and nationality.
After the September 11, 2001 bombings the incidents of harassment have increased. I have been falsely accused of sexual harassment on three separate occasions. A co-worker physically assaulted me. Then I was written up for the incident. In most situation ...