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Ruth Milano v. Rolondo Aguilerra

March 7, 2013


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


On November 4, 2009, Plaintiff Ruth Milano commenced this sexual-harassment action against Defendants Rolondo Aguilerra, also known as "Jay" Aguilar, United States Department

Defense, and Robert M. Gates, Secretary of Defense.*fn1 Defendant Leon E. Panetta, Secretary Defense, now moves for summary judgment. Plaintiff opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 44.) For the following reasons, the Court GRANTS Defendant's motion for summary judgment.


Plaintiff alleges that on August 24, 2008, her co-worker Mr. Aguilera sexually assaulted her earlier that morning in the women's locker room at the San Diego Naval Base Commissary. (FAC ¶¶ 12--15.) Plaintiff, a cashier at the commissary, was three months pregnant and had been temporarily assigned to work in the produce department. (Milano Dep. 18:20--19:1--5, 33:21--23.) On the date of the incident, Mr. Aguilera held the position of Quality Assurance Evaluator ("QAE"). (Vick Decl. ¶ 3.) Mr. Aguilera's "primary duty as a QAE was to monitor the performance of independent contractors of the commissary with regard to stocking and custodial services." (Id.) While on duty at night, Mr. Aguilera "acted as the commissary manager's representative" but "had no supervisory or other authority over any other commissary employee." (Id. ¶ 4)

On August 24, 2008, at approximately 5:00 A.M., Plaintiff arrived at the commissary for work. (Milano Dep. 16:16--22.) When Plaintiff arrived, no other commissary managers were on-site, which meant that Mr. Aguilera was in charge of the store. (Vick Dep. 36:6--15.) Plaintiff saw Mr. Aguilera at the employee entrance, greeted him, and walked upstairs with him to the women's locker room. (Milano Dep. 16:21--18:19.) While they walked, they engaged in "a regular, friendly conversation." (Id. at 40:9--12.)

Mr. Aguilera had entered the lounge room in front of Plaintiff, and they entered the women's locker room together. (Aguilera Dep. 81:12--18, 86:2--4.) Plaintiff walked over to her locker and sat in a chair to put on her work boots while Mr. Aguilera sat in a chair beside the locker room's entrance. (Milano Dep. 30:2--31:1--7, 41:9--14; Aguilera Dep. 81:12--16.) Plaintiff alleges that Mr. Aguilera looked down her shirt while she put on her boots; Defendant denies this. (Milano Dep. 41:11--14; Aguilera Dep. 94:3--8.) Plaintiff then used her sweatshirt to cover her chest. (Milano Dep. 42:2--8.) After she stood up, Plaintiff put on her jacket and then her smock. (Id. at 46:7--24.)

After Plaintiff was ready for work, she walked toward the center of the locker room, and Mr. Aguilera did the same. (Milano Dep. 48:5--12.) Plaintiff alleges that as Mr. Aguilera walked toward her, he said something to the effect of "let me see if you have milk in there [her breasts]." (Id. at 48:13--15.) Mr. Aguilera then allegedly reached for Plaintiff's breast to which Plaintiff responded, "what are you doing? Are you serious?" (Id. at 51:25--52:2.) Mr. Aguilera allegedly said, "I want to see if you have milk in there," to which Plaintiff responded, "Are you serious? I don't have milk in there yet." (Id. at 62:8--20.) Plaintiff then used her forearms to cover her chest, but Plaintiff reached through her arms and touched the part of her skin located about one inch above the top of her shirt. (Id. at 53:8--11, 59:22--24, 61:2--12.) Plaintiff states that she did not push Mr. Aguilera away from her, as she was "in shock" and worried about what would happen to her unborn baby if she objected. (Id. at 57:18--21, 63:14--19.) After Mr. Aguilera removed his hand from Plaintiff's body, he allegedly said, "let me take a picture of you," picked up her shirt "to try to get the garter part of my pants down more," and then took a picture of her stomach. (Id. at 65:13--15, 66:2--3, 71:5--6.)

Mr. Aguilera contends that Plaintiff consented to him taking the photograph following a conversation regarding her sonogram and Mr. Aguilera's suggestion that she make a scrapbook containing pictures of herself at various stages of her pregnancy. (Aguilera Dep. 71:6--72:18.) Plaintiff had previously told Mr. Aguilera about her pregnancy. (Id. at 69:21--24.) Mr. Aguilera denies that he touched Plaintiff and denies that he made statements regarding her breasts. (Id. at 112:14--113:4.) Plaintiff and Mr. Aguilera left the locker room together and walked down the stairs together with Mr. Aguilera leading the way. (Milano Dep. Ex. 10, 11.)

Twenty to thirty minutes after Mr. Aguilera took the photograph, Plaintiff told a co-worker what had happened, and the co-worker suggested that she inform a supervisor immediately. (Milano Dep. 85:7--20.) Around 8:30 A.M., Plaintiff reported the incident to Mr. Vick, the store director, who advised Plaintiff to call the military police, as the commissary has a zero-tolerance sexual-harassment policy. (Id. at 85:12--24, 87:19--24; Vick Dep. 36:16--20.) Plaintiff called the military police, which resulted in an investigation by the Criminal Investigation Division ("CID"). (Milano Dep. 87:22--88:5.)

While the CID's investigation was in progress, Mr. Vick transferred Mr. Aguilera to the Imperial Beach Commissary. (Vick Decl. ¶ 5.) After the investigation came back unfounded, Mr. Aguilera was transferred back to the 32nd Street Commissary. (Id.) Soon after his return, Mr. Aguilera applied for a position at the Imperial Beach Commissary, which he received and which Plaintiff contends constituted a promotion, including a pay raise and an increase in his wage grade. (Id.; Pl.'s Opp'n 19:18--27.)

On November 24, 2008, Mr. Aguilera's supervisor, Mr. Barcelona, issued Mr. Aguilera a "letter of concern" regarding the incident. (Def.'s Ex. 8.) Mr. Vick and Mr. Barcelona decided that the letter was the appropriate action to take because the investigation had come back unfounded. (Vick Decl. ¶ 7.) The letter warned Mr. Aguilera that "future infractions may result in more sever[e] disciplinary action." (Def.'s Ex. 8.) On January 10, 2009, Mr. Aguilera completed training on the prevention of sexual harassment. (Pl.'s Ex. 3--1.)

Plaintiff claims that she experienced retaliation as a result of her EEO complaint. First, she alleges that Defendant's action of moving her from the produce department back to her position as a cashier around October 2008 constituted retaliation. (Milano Dep. 120:3--14, 121:22--122:3.) Plaintiff claims that she did not want to return to her cashier position because it is a "hostile environment" in general, as the cashiers are unable to eat, drink, or socialize. (Id. at 120:18--121:6.)

Second, Plaintiff alleges that her supervisor Ms. Mina's refusal to provide her with a footstool while at the cash register constituted retaliation. Plaintiff asked Ms. Mina if she could sit on a stool between customers while at the cash register. (Milano Dep. 127:5--9.) In response, Ms. Mina asked Plaintiff to provide her with a doctor's note. (Id. at 127:10--12.) Plaintiff provided Ms. Mina with a note from a nurse practitioner dated October 10, 2008, in which the nurse practitioner recommended that Plaintiff have a foot stool for her use if she is standing. (Id. at 127:13--20; Pl.'s Ex. 12.) Ms. Mina told Plaintiff that using a stool at a cash register was dangerous because she might trip over it. (Milano Dep. 129:14--18.) She then offered to move Plaintiff to Cash Register 21, a handicap register that is wider and could accommodate Plaintiff's a stool. (Id. at 129:21--25.) Ms. Mina provided Plaintiff with the stool. (Id. at 130:1--7.) Plaintiff then submitted a reasonable accommodation request through her union in November 2008 in which she requested a "stable chair with back support." (Id. at 133:21--24, 134:22--24, Ex. 21.) Plaintiff does not recall if there was any response to her request. (Id. at 137:14--16.)

Ms. Mina asked Plaintiff to get a second doctor's note indicating the type and dimensions of the chair that she needed. (Id. at 137:17--21.) Plaintiff provided a second doctor's note. (Id. at 141:17--22.) In response, Ms. Mina offered Plaintiff the position of ID checker, which would allow Plaintiff to sit. (Id. at 143:10--13.) But Plaintiff declined the assignment because the position would not afford her the overtime that she received as a cashier. (Id. at 144:8--16.) In the end, Plaintiff grabbed a small plastic chair from the deli section, which she used at her cash register. (Id. at 138:8--15.) No one had a problem with Plaintiff's action, and this action resolved the situation to her satisfaction. (Id. at 138:16--21.)

Third, Plaintiff alleges that after filing her EEO complaint, Defendant "started nitpicking little thing" and placed a "spotlight" on her. (Milano Dep. 154:4--6, 155:2--6.) Ms. Mina gave Plaintiff a write-up after catching her on video talking to a bagger and leaning on the register. (Id. at 155:9--20, 156:2--4.) Plaintiff believes that this discipline was a result of her EEO activity because "[t]here were other cashiers who were also doing the same thing I was doing, but didn't get a write-up." (Id. at 156:14--22.) A commissary directive prohibits cashiers

talking with baggers, and requires written documentation of first-time violations. (Mina Dep. 40:2--43:6.) In terms of having the spotlight on her, Plaintiff claims that before providing Ms. Mina with her doctor's note, she had been assigned to the cash registers that received the most customers. (Milano Dep. 157:24--25, 159:11--13.) However, Plaintiff does not recall complaining about this, and it took place three or four times. (Id. at 158:12--13, 160:7--8.) Plaintiff also ...

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