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Alatorre v. Mabus

United States District Court, S.D. California

May 8, 2015

RAYMUND E. MABUS, Secretary, Department of the Navy, Defendant.


CYNTHIA BASHANT, District Judge.

Before the Court is Defendant Raymund E. Maybus' Motion for Summary Judgment. ECF 34. After reviewing the papers and hearing oral argument on the Motion, the Court GRANTS summary judgment for the following reasons and DISMISSES WITH PREJUDICE Plaintiff Cathy Alatorre's Complaint. ECF 1.


This case demonstrates the perils of an office romance. It is undisputed that Plaintiff and Mr. Bergamini had a consensual dating relationship both before and during her employment at Camp Pendleton. Clearly the relationship was tumultuous. Plaintiff says the relationship existed largely because of pressure and fear of losing her job, but she presents no evidence to support this theory. In fact, Plaintiff had no adverse consequences at her job when she was on the "off" part of her "on-again/off-again" relationship and received nothing but positive reviews throughout her tenure at Camp Pendleton.

Plaintiff seems more troubled by the gossiping and harassing conduct of her coworkers who she claims either resented her privileged status because of her perceived relationship with Mr. Bergamini or intervened and encouraged her to date Mr. Bergamini when she was not inclined to do so. Plaintiff complained to her supervisors about items moved or changed in her office, car tampering and off-color jokes distributed in the office. According to the undisputed facts, the Navy attempted to address Plaintiff's concerns about this perceived harassment. Title VII does not require that an employer be liable for failing to control office gossip or the prurient interest of coworkers in an inter-office affair. Accordingly, this Court GRANTS the Navy's Motion for Summary Judgment on Count One of the Complaint. ECF 1.

Plaintiff also alleges she was retaliated against both because she opposed sexual harassment at her job and because she participated in an EEOC investigation after she reported harassment to the EEO Office on May 31, 2012. First, Plaintiff fails present any evidence that before May 31, 2012, she opposed sexual harassment or discrimination. Second, Plaintiff fails to present any evidence that she faced any adverse employment action by her employer. Finally, to the extent Plaintiff brings new claims that her job duties were decreased and she was relegated to taking on-line courses for months on end, these claims were never raised in the EEO Complaint, and therefore Plaintiff has failed to exhaust her administrative remedies. Thus, this Court GRANTS the Navy's Motion for Summary Judgment on Count Two of the Complaint.


A. The Relationship

Plaintiff and Mr. Bergamini met for the first time when they were working at the Long Beach Naval Shipyard, sometime in either 1989 or 1990. Bergamini Dep. 117:24-25, ECF 36-1. They dated briefly. Id. at 119:15-25; Alatorre Dep. 170:9-172:12, ECF 36-2. Plaintiff describes Mr. Bergamini's behavior in Long Beach as "creepy" and "obsessive", and she claims she had to transfer job locations and move her personal residence to get away from him. Alatorre Dep. 172-81.

Nonetheless, in 2009, following the death of her daughter, Plaintiff reinitiated contact with Mr. Bergamini via his son. Bergamini Dep. 123; Alatorre Dep. 164. They began talking frequently on the telephone. Alatorre Dep. 167. With the assistance of Mr. Bergamini, Plaintiff applied to work at Camp Pendleton, where Mr. Bergamini was working. Bergamini Dep. 124-25; Alatorre Dep. 192, 200. In August 2009, Plaintiff was successful at getting the job at Camp Pendleton and began working at the Naval Facilities Maintenance Department ("FMD"), which was Mr. Bergamini's department. Bergamini Dep. 131.

Mr. Bergamini was interested in rekindling a relationship with Plaintiff, but she expressed reluctance. Alatorre Email, ECF 50-2; Bergamini Dep., ECF 50-3; Bergamini Email, ECF 50-4. Even so, the two remained friends and had dinner on and off from 2009-2011. Alatorre Dep. 374. Some of these dinners were "probably" at Plaintiff's request since she and Mr. Bergamini were friends. Id. Sometimes they also met after work for a cup of tea or a small appetizer, but Plaintiff says whenever Mr. Bergamini raised romantic issues, she left. Alatorre Aff. ¶ 16, ECF 36-2. At Plaintiff's request, Mr. Bergamini went with her to look at apartments she was considering renting in San Diego. Bergamini Dep. 131; Alatorre Dep. 229.

Plaintiff claims Mr. Bergamini sexually harassed her at work throughout this time period, consisting of staring at her, repeatedly asking her for a date, hugging her, grabbing her bottom, trying to kiss her, saying she was beautiful, calling and texting every day, and calling her into his office. Alatorre Dep. 435, 438; Alatorre Aff. ¶¶ 6-8, 7[1], 16-22. Plaintiff felt overwhelmed by his conduct and told Mr. Bergamini she needed space. Id. ¶¶ 23-24. Despite her alleged rebuffing of Mr. Bergamini's advances, Plaintiff does not allege she suffered any adverse job actions during this time period.

According to Plaintiff, in March 2010, Mr. Bergamini was giving her more space and "we were getting along better." Id. ¶¶ 24-28. Thus, in August, 2010, they began talking about dating again. Id. ¶ 28.

However, on August 26, 2010, Plaintiff says they had a confrontation relating to Plaintiff's live-in boyfriend, Michael. Alatorre Dep. 435; Alatorre Aff. ¶¶ 23, 29. Plaintiff claims that during this confrontation "[Bergamini] called me an F'ing liar.' And I believe that he also said F'ing whore.'" Alatorre Dep. 435. Plaintiff says Mr. Bergamini also "grabbed my right arm and squeezed it very firmly. He let go and I left the office and went for a walk. When I returned to the office, he returned and began banging on the window. He yelled, Open this fucking door. Open this fucking door! I was frightened...." Alatorre Aff. ¶ 29.

For the next ten or eleven months, Plaintiff only ran into Mr. Bergamini from time to time, occasions Plaintiff believes Mr. Bergamini orchestrated. Alatorre Aff. ¶ 40. During this time period, Plaintiff received no adverse work consequences: she was not terminated, demoted, nor did she receive any negative work evaluations. When they saw each other, Mr. Bergamini apologized profusely for his behavior in August 2010 and "from the pressure, his position over me and work and the confusion, I gave in and dated him." Id.

The two then resumed dating at least from July to October 2011. Bergamini Dep. 244; Alatorre Dep. 441-43. Plaintiff says she thought she would be fired if she didn't date Mr. Bergamini because he "used his power to get me the job. He could use his power for me to lose the job." Alatorre Dep. 438. Plaintiff does not claim, however, that Mr. Bergamini ever threatened she would be fired or that her job situation was ever even raised during their relationship.

The relationship included consensual sexual relations. Bergamini Dep. 244; Alatorre Dep. 444. Plaintiff told Mr. Bergamini she loved him on several occasions. Alatorre Dep. 447. The two travelled together to Palm Springs and, in October 2011, to the East Coast where they met Plaintiff's family. Bergamini Dep. 278; Alatorre Dep. 442. The trip to the East Coast ended badly, and Plaintiff broke up with Mr. Bergamini after they returned. Bergamini Dep. 291-92; Alatorre Dep. 453-55. Again, following the break up, Plaintiff was not terminated, demoted, nor did she receive any negative work evaluations. Smith Decl., ECF 54-6.

B. The Work Environment

At Camp Pendleton's FMD, where Plaintiff began working in 2009, her first line supervisor was Ray Hill. Bergamini Decl. 2, ECF 36-1. Her second line supervisor was Jeff Hunt. Id. Although Mr. Bergamini did not directly supervise her at first, she began working on Standard Operating Procedures ("SOPs"), and Mr. Bergamini was responsible at least in part for supervising this work. Bergamini Decl. 2; Hunt Dep. 66-69. After Mr. Bergamini and Plaintiff had a confrontation in August 2010, the supervision of her SOPs was transferred from Mr. Bergamini to Mr. Hunt. Alatorre Decl. ¶ 31.

Mr. Bergamini was a right hand man for the FMD and reported directly to Lieutenant Colonel Todd Kerzie. Hunt Dep. 14. Mr. Hunt was under the direct supervision of Mr. Bergamini. Longridge Aff. 4, ECF 36-7. Mr. Bergamini also supervised Mr. Hill. Hill Aff. 2, ECF 50-5.

The other employees in the FMD were suspicious of the relationship between Plaintiff and Mr. Bergamini. Hunt Dep. 58-61. Mr. Hill felt that "Mr. Bergamini hired his girlfriend from Long Beach." Hill Aff. 4. The coworkers knew Plaintiff and Mr. Bergamini had a prior relationship and would watch the two go for frequent walks together at work. Id.; Hunt Dep. 86-89. In December 2009, when she wore a dress to work, Plaintiff claims that her coworker Mr. Grant teased her, saying "look, she has legs" and that Mr. Bergamini "will probably be in the office a dozen times to see her today." Alatorre Decl. ¶ 16.[2] Plaintiff complained to various supervisors about the gossiping that went on in the Department. Hunt Dep. 82-89. She was upset that "people were being immature and talking about things that really were not their business." Id. at 90-93.

In 2010, Plaintiff claims she asked her coworker Mr. Hunt (who reported directly to Mr. Bergamini) to keep Mr. Bergamini out of her office and to leave her alone. Alatorre Decl. ¶ 13. Mr. Hunt denies any receiving any complaints from Plaintiff that she was being sexually harassed or any requests to keep Mr. Bergamini out of her work space. Hunt Dep. 94-96, ECF 50-7; Hunt Decl. (Feb. 7, 2013) 1, ECF 50-8[3].

During this time period, Plaintiff says she also complained of Mr. Bergamini's harassment to several non-supervisory coworkers, including Mr. Monroe, Mr. Grant, and Ms. Longridge. Alatorre Decl. ¶¶ 13-18. They all wanted to gossip and give their advice about the relationship. Id.

On March 16, 2011, Plaintiff met with Mr. Hunt and Mr. Bergamini to complain about rude and harassing treatment from her colleagues, including: (1) Her direct supervisor, Mr. Hill, yelled at her and called her a prima donna; (2) she believed people entered her office in her absence; (3) things in her office were moved or removed; (4) her car was keyed; (5) her car tires were deflated, (6) people gossiped or acted like they were in "junior high",; and (7) she was offered a dead mouse in a candy wrapper. Hunt Decl. 81-86; Alatorre Decl. ¶¶ 32-39; Kerzie Dep. 37-40. She complained that someone slipped an article about a commander's improper hiring of his favorite person, entitled "Office of Special Counsel Prosecutes HR Specialists for Allegedly Helping Agency Candidate Preselect a Candidate" implying Plaintiff was improperly hired. Alatorre Decl. ¶32. ...

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