United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT NEIL JONES FOOD COMPANY'S MOTION FOR SUMMARY JUDGMENT
LUCY H. KOH, District Judge.
Plaintiff Rosa Ortega ("Ortega") filed this action against her former employer the Neil Jones Food Company ("Neil Jones") and one of her former co-workers Jose Manzo ("Manzo") alleging that Ortega experienced a hostile work environment due to severe and pervasive sexual harassment. Ortega contends that Neil Jones and Manzo acted in violation of California's Fair Employment and Housing Act ("FEHA") and that Manzo engaged in gender violence and sexual battery in violation of California law. Before the Court is Neil Jones' Motion for Summary Judgment. See ECF No. 68. Ortega has filed an Opposition, and Neil Jones has filed a reply. See ECF Nos. 72-73. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing on this Motion set for January 23, 2014, at 1:30 p.m. The Case Management Conference scheduled for January 23, 2014, at 1:30 p.m. remains as set. The Court, having considered the record in this case, applicable law, and parties' briefs, DENIES Neil Jones' Motion for Summary Judgment for the reasons stated below.
A. Factual Background
Ortega and Manzo were employees of Neil Jones. The two were seasonal workers at Neil Jones' tomato processing plant in Hollister. They worked from July through mid-October with no days off. Ortega's employment at Neil Jones commenced in 2002 or 2003 and terminated at the end of the 2012 season due to a knee injury. ECF No. 68, Ex. A ("Ortega Depo.") at 11. Ortega's duties involved cleaning the Neil Jones facility, and she was supervised by Sylvia De Marco ("De Marco"), the sanitation supervisor. Id. at 12. Manzo's first season at Neil Jones was in 1991. Both Manzo and Ortega were members of a union, which had a grievance and arbitration process to mediate disputes between Neil Jones and union members.
Ortega's job duties included using pressure washers to clean parts of the Neil Jones facility. ECF No. 70 ("Ortega Decl.") ¶ 5. As such, during the workday, Ortega changed in and out of rain suits to protect her from the washers. Id. Ortega and other female employees utilized an isolated section of the facility to change in and out of the suits. Id. Such privacy was necessary because employees' clothes under the rain suits routinely were so wet that they clung to employees' bodies, thus exposing employees' buttocks and breasts. Id. Accordingly, after female employees changed out of the rain suits, they went to a bathroom to change into dry clothes. Id.
Ortega began noticing that Manzo, a male co-worker, was coming around the rain suit changing area during the 2009 season. Id. ¶ 9. About three times a week, Manzo would come and look at Ortega and her female co-workers as they were changing out of the rain suits in the private area. Id. Ortega began to complain to De Marco about Manzo's presence in this area. Id. ¶ 10; Ortega Depo. at 20. Specifically, Ortega complained ten times about Manzo's activities between 2009 and 2012. Ortega Decl. ¶ 10; Ortega Depo. at 21. De Marco indicated that she would talk to Manzo and told Ortega not to worry about Manzo because "he is just an old man." Ortega Decl. ¶ 10. Meanwhile, in 2010, one of Ortega's female colleagues, Elizabeth Garay, also complained about Manzo to De Marco. ECF No. 68, Ex. D ("De Marco Depo.") at 8-9. De Marco, after witnessing Manzo going to the area where female employees were changing, asked Manzo why he was going there. Id. at 9. Manzo told De Marco that his gloves were stored in that area. Id. De Marco instructed Manzo to find a different spot for his gloves and reported the incident to Manzo's supervisor and to her own supervisor. Id.
At the same time, during the 2009 to 2012 seasons, Manzo began following Ortega around the workplace. Ortega Decl. ¶ 11. Ortega shooed Manzo away and admonished him to go back to his work area. Id. Ortega complained to De Marco about Manzo's following of Ortega several times in 2011 and 2012. Id. ¶¶ 12-16. De Marco instructed Ortega not to worry about Manzo because he was "an old man" and stated that she had spoken to Manzo, but that Manzo would not listen. Id. ¶¶ 13-16.
During the 2009 to 2012 seasons, Manzo also approached Ortega and said "Ay, Rosita" several times. During the 2009 season, this occurred three times. Ortega complained to De Marco, who said she would talk to Manzo. Id. ¶¶ 17, 19-20. When the incident reoccurred, and Ortega again complained, De Marco stated that she had already spoken to Manzo, but would speak to him again. Id. ¶ 19. When the third incident occurred, Ortega complained to Daniel Quintana ("Quintana"), who was De Marco's supervisor. Quintana told Ortega that he and De Marco would talk to Manzo. Id . ¶ 20. The "Ay, Rosita" comments occurred seven times in 2010, three times in 2011, and two times in 2012. Id. ¶¶ 21-23. Ortega complained to De Marco nine times, and De Marco repeatedly instructed Ortega to ignore Manzo because he was an "old man." Id.
On August 20, 2012, at approximately 2 p.m., while Ortega was washing with a pressure hose, Manzo walked up behind her, brushed his genitals up against her buttocks, and whispered "Ay, Rosita" in her ear. De Marco Depo. at 24; Ortega Depo. at 20-23. Ortega began crying, and a co-worker came up to her and said that the co-worker could not believe that "he just did that to you." Ortega Decl. ¶ 24. Immediately after the incident, Ortega complained to De Marco. Ortega Depo. at 25-26. De Marco stated that she "didn't know what to do, " to which another supervisor who was in De Marco's office stated, "[y]ou need to do something about this." Ortega Decl. ¶ 24.
Ortega then went to the office of the Human Resources Manager, Judy Vanderpool ("Vanderpool") along with a Human Resources Clerk, who served as an interpreter. Ortega Depo. at 26-27. Ortega complained about the incident, through the interpreter, to Vanderpool. Id. Ortega, who did not know Manzo's last name, identified him using employee badge photos provided to her. Id. Vanderpool asked if Ortega had complained to De Marco. Ortega Decl. ¶ 25. Ortega answered affirmatively, and Vanderpool had asked if De Marco had prepared a written report. Id. When Ortega indicated that De Marco had not prepared such a report, Vanderpool indicated that she could not take any action without such a report. Id. Meanwhile, De Marco conferred with Manzo's supervisor. ECF No. 68, Ex. E ("Avila Depo.") at 7-8.
The next morning, Vanderpool called a meeting with Manzo, his supervisor, and another manager, who served as Manzo's interpreter. Id. at 9-10. Vanderpool informed Manzo of Ortega's complaint, and read him a written warning that Vanderpool had prepared. Id. at 10. The warning stated that Neil Jones has "had prior complaints from female workers that you stare at them and it makes them uncomfortable." ECF No. 71, Ex. 2. Vanderpool suspended Manzo for two days and placed him on probation for the remainder of the season because, "it seemed apparent that [Ortega] was very upset and something took place. " Id. (emphasis added); ECF No. 68, Ex. B ("Vanderpool Depo.") at 17. Vanderpool admonished Manzo not to disclose the nature of their conversation. Avila Depo. at 11. Manzo denied the allegations, but accepted the punishment. Vanderpool Depo. at 17, 35.
The next day, Ortega complained to Vanderpool that she disagreed with the level of punishment meted out on Manzo. Id. at 15-16. Ortega also informed Vanderpool of previous incidents with Manzo. Id. at 11. Vanderpool inquired as to why Ortega did not report these prior incidents to Vanderpool. Id. Ortega contends that she was told at her orientation that such complaints were to go to her direct supervisor, which is why she did not report incidents to Vanderpool. Ortega Decl. ¶ 26. Vanderpool continued the investigation, but could not substantiate Ortega's allegations with respect to previous incidents. Vanderpool Depo. at 15-16. Vanderpool later informed Ortega that Neil Jones was unable to substantiate Ortega's allegations with respect to the incidents prior to August 20, 2012. Id.
Ortega contends that she was harassed by other co-workers as a result of the incident with Manzo. Ortega Depo. at 29. Specifically, one co-worker asked Ortega whether Ortega "was the one who had her ass grabbed" and another co-worker mimicked Manzo grabbing Ortega's buttocks as Ortega removed her rain suit. Ortega Decl. ¶ 27-28. Furthermore, Ortega contends that she continues to encounter Manzo. Ortega Depo. at 34. Specifically, three days after the incident, Manzo and Ortega were on the same stairwell, where Manzo looked at Ortega directly and laughed. Ortega Depo. at 34; Ortega Decl. ¶ 28. Moreover, Ortega had to see Manzo every day for the month following Manzo's suspension because they worked in the same area. Ortega Decl. ¶ 29. Manzo stared at Ortega and laughed at her. Id.
Ortega contends that she has suffered severe emotional distress as a result of Manzo's three-season-long harassment. Id. ¶ 31. Ortega has had difficulty sleeping, nightmares, and now fears men, including her husband. Id. Ortega also experienced severe nervousness at work. Id. ¶ 32. She cried at work and had difficulty concentrating on tasks that she had been assigned. Id.
B. Procedural History
Ortega filed a complaint against Neil Jones with the California Department of Fair Employment and Housing and requested an immediate right-to-sue notice, which the agency granted on September 4, 2012. Compl., Ex. A. On September 19, 2012, Ortega filed the Complaint in the instant litigation in the California Superior Court for San Benito County. See Compl. Neil Jones, with the consent of Manzo, removed the action to this Court under diversity jurisdiction. See ECF No. 1. On February 13, 2013, this Court issued a case management order, under which fact discovery was to close on October 17, 2013, and the parties were limited to 15 depositions per side. ECF No. 34. The parties exchanged discovery in accordance with the Court's order. Ortega was deposed on May 5, 2013. On December 11, 2013, Neil Jones filed the instant Motion for Summary Judgment. ECF No. 68. On December 24, 2013, Ortega filed her Opposition, and attached, among other documents, an affidavit from Ortega herself. ECF Nos. 69-72. On January 2, 2014, Neil Jones filed a Reply. ECF No. 73.
II. LEGAL STANDARD
Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law, " and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If the evidence is merely colorable, or is not significantly probative, " the court may grant summary judgment. Id. at 249-50 (citation omitted). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006).
The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 323. To meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party has satisfied its initial burden of production, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.
A. Objections to Ortega's Opposition
Before the Court turns to the merits of Neil Jones' Motion for Summary Judgment, the Court addresses Neil Jones' objections to Ortega's Opposition. In its Reply in support of the instant Motion, Neil Jones contends that much of Ortega's Opposition is procedurally improper because Ortega raises new factual allegations therein that were not presented in Ortega's Complaint. ECF No. 73 at 2-4. Specifically, Neil Jones contends that the Complaint only alleged that Ortega had complained to her supervisors about the August 20, 2012, incident. Id. In contrast, Neil Jones suggests, Ortega's Opposition increases the number of alleged complaints by suggesting that Ortega complained to De Marco during the several times that Manzo said "Ay, Rosita." Id.
Neil Jones relies principally on Wasco Prods., Inc. v. Southwall Techs, Inc., 435 F.3d 989, 990 (9th Cir. 2006), to contend that Ortega's Opposition improperly supplemented the Complaint's allegations. In Wasco, the plaintiff brought suit against two defendants alleging that defendants' had misrepresented the efficacy of certain products. The plaintiff sought to toll the statute of limitations on the basis that the defendants had engaged in a civil conspiracy and, as such, that the statute of limitations did not begin to run until the last overt act in pursuit of the conspiracy had been completed. Id. at 989. The Ninth Circuit held that plaintiff was required to allege civil conspiracy under the heightened pleading standards of Rule 9(b) because of the underlying allegation of fraud. Id. at 990-92. The Ninth Circuit concluded that plaintiff could not toll the statute of limitations on the basis of civil conspiracy by merely raising the civil conspiracy issue for the first time in its opposition to defendants' motion for summary judgment. Id. at 992.
Neil Jones further cites Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000). In Coleman, the Ninth Circuit held that a plaintiff who had in his complaint only alleged a disparate treatment age discrimination claim could not, at summary judgment, make a disparate impact claim of discrimination. Id. at 1292. The Ninth Circuit found that allowing plaintiffs to proceed on a disparate impact theory after the close of discovery would prejudice defendant, because discovery had proceeded on the assumption that the case was a disparate treatment case, and accordingly no discovery on defenses to disparate impact was taken. Id. Therefore, the Ninth Circuit held that "[t]he lack of notice on this issue central to the cause of action makes it difficult, if not impossible, for [defendant] to defend itself." Id. As a result, the Ninth Circuit determined that "plaintiffs, who clearly stated... claims of disparate treatment but sought also to pursue claims of disparate impact, were required either (1) to plead the additional disparate impact theory in their complaints, or (2) to make known during discovery their intention to pursue recovery on the disparate impact theory omitted from their complaints." Id. at 1294 (emphasis added).
Here, the Court finds that Neil Jones had ample notice that Ortega's prior complaints to De Marco were part of the basis of her hostile work environment claim for two reasons. First, the Complaint alleged that Manzo frequently watched female employees put on and take off rain suits and that he leered at a sexual manner at Ortega and other female employees on a daily basis. Compl. ¶¶ 8-10. The Complaint further stated that Manzo followed Ortega around and would say "Ay, Rosita" on a daily basis. Id. ¶ 11. Moreover, the Complaint alleges that Ortega's co-worker complained to De Marco about this precise behavior, id. ¶ 7, and that multiple women had lodged complaints regarding Manzo with supervisors at Neil Jones, id. ¶ 18. These allegations in the Complaint suggest that Manzo's actions prior to August 20, 2012, and Neil Jones' notice of such behavior was part of the case from the case's inception. Based on these allegations, Neil Jones was on notice that Manzo's history and what Neil Jones knew about that history would be central to the case. Accordingly, the Court finds that this is not a case in which it would have been difficult-let alone impossible-for Neil Jones to prepare its defense.
Second, Ortega made clear during her May 9, 2013, deposition that she had complained to De Marco several times. In her deposition, Ortega stated that she complained about Manzo as early as 2009 and that she complained to De Marco several times:
Q: When was the first time that you complained to Sylvia [De Marco] about Mr. Manzo?
A: I'm not sure. But we would always complain about that man. It wasn't just me. It was other people.
Q: All right. Specifically you, when is the first time that you can remember complaining to Sylvia about Mr. Manzo?
A: Let me try to remember. Because it's been a long time already. That was around - let me see. ...