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  1. 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication Sudo Nim, Exam No. 2179 Penn & Teller, LLP 3200 Fifth Ave. Sacramento, CA 95817 Tel: (916) 123-4567 Fax: (916) 123-4568 Attorney for Plaintiff Margaret Polisi SUPERIOR COURT OF NITA COUNTY OF NITA MARGARET POLISI, Plaintiff, vs. SIMON CLARK, PARKER & GOULD and DOES 1 through 20, Defendants. Case No.: CPL-2014 MEMORANDUM OF POINTS AND AUTHORITIED IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION DATE: April 10, 2014 TIME: 4:00 p.m. DEPT: Lewis COMPLAINT: January 7, 2014 TRIAL DATE: Not set I. INTRODUCTION Simon Clark got whatever he wanted at Parker & Gould. He got the cases he wanted. He got to work with the people he wanted. And he got to sexually harass the women he wanted. Margaret Polisi was simply the most recent in a long line of female employees at Parker & Gould that Simon Clark did this too. He would proposition these women until they would finally submit, have sex with them until he got board or they finally had enough, and then make sure they had to leave the firm so he wouldn't feel uncomfortable. His most frequent tactic, which was also the one he used against Margaret Polisi, was to use his considerable influence at the firm to severely reduce the amount of work his new ex got. This significant decrease of work would lead to lower billable hours, which gave Parker & Gould the excuse they needed to terminate for cause. This Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication should be granted because there are disputes of material fact present in this case and Defendant is not entitled to judgment as a matter of law.
  2. 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication II. SUMMARY OF THE FACTS Defendant Clark began making Margaret Polisi feel uncomfortable as soon as they met. Defendant Clark would make comments about Margaret Polisi's appearance (SS No. 16) as well as other inappropriate comments. (SS No. 12, 14.) But Defendant Clark didn't stop at making comments. For instance, Defendant Clark would touch Margaret Polisi's shoulders while reading over them (SS No. 7), frequently touch her arm while they were speaking (SS No. 9), and even once kissed Margaret Polisi on the neck (SS No. 17.) None of this behavior was welcome by Margaret Polisi and all of it made her feel uncomfortable. (SS No. 8, 10, 13, 18, 25.) And to make matters worse, Margaret Polisi thought that complaining would only hurt her chances at promotion. (SS No. 15.) Defendant Clark had a long history of being the office Lothario. (SS No. 23.) He had relationships with approximately ten different women at Parker & Gould over the years and most recently set his sights on Margaret Polisi. (SS No. 24.) Eventually, Margaret Polisi gave into his advances. However, all did not stay well for long and Margaret Polisi broke things off. Immediately thereafter Defendant Clark threatened to make Margaret Polisi regret that. (SS No. 20.) Soon thereafter Margaret Polisi started getting less and less work. This was Defendant Clark's usual operating procedure having done the same to many women at Parker & Gould before. (SS No. 21, 22.) In spite of this, Margaret Polisi attempted to make partner. Parker & Gould said they denied her partnership based on her performance despite the fact that she had a better grade in the fifth year (her lowest) than many of the other associates in her class (SS No. 1), her performance that year was negatively affected by the death of her father (SS No. 3), she was said to be “good partnership material” in her sixth year evaluation (SS No. 4), and another associate who made partner got the same seventh year grade as her (SS No. 5, 6.)
  3. 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication III. ARGUMENT A. THE COURT SHOULD DENY SUMMARY ADJUDICATION ON THE FIRST AND SECOND CAUSES OF ACTION BECAUSE THERE ARE DISPUTED ISSUES OF MATERIAL FACT AND DEFENDANT IS NOT ENTITLED TO JUDGEMENT AS A MATTER OF LAW. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action” by demonstrating that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Cal. Code of Civ. Proc., § 437c, subd (c); Cal. Code of Civ. Proc., § 437c, subd. (f)(1); Cal. Code of Civ. Proc., § 437c, subd. (f)(2).) This Court should deny the summary adjudication motion on the first and second causes of action because there are disputes of material fact and Defendant is not entitled to judgment as a matter of law. B. SUMMARY ADJUDICATION IS INAPPROPRIATE BECAUSE THERE ARE TRIABLE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT'S PURPORTED REASON FOR NOT MAKING MARGARET POLISI PARTNER WERE UNTRUE OR PRETEXTUAL. Summary adjudication is inappropriate here because there are triable issues of material fact as to whether Defendant's reason for denying Margaret Polisi partnership were untrue or pretextual. The proper inquiry when employing a burden shifting approach for summary adjudication in an employment case is for the employer to first articulate a nondiscriminatory purpose. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.4th 189, 202–203.) Only after the employer has met this burden is it appropriate for an employee to produce evidence showing that the purported purpose is either untrue or pretextual. (Hersant v. California Dept. of Social Services (1997) 57 Cal.4th 997, 1004–1005.) However, it is important to keep in mind during this inquiry that the employee is not required to show that discrimination was the only reason for the employer's action. (See Ewing v. Gill Industries, Inc. (1992) 3 Cal.4th 601, 612.) Further, “many employment cases present issues of intent, [] motive, and hostile working environment, [which are] . . . rarely appropriate for disposition on summary judgment.”
  4. 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication (Nazir v. United Airlines, Inc. (2009) 178 Cal.4th 243, 286 (emphasis added).) The nondiscriminatory purposes articulated by Defendant fail to convince. The Defendant hangs much of their argument on the notion that “a C in the fifth year is usually a clear sign that an associate will not make partner.” (Defendant’s SS No. 25.) The very use of the word “usually” makes it clear that an associate can get a C in their fifth year and still make partner. That the other associates who received C's in their fifth year never made partner is irrelevant to whether Margaret Polisi was qualified to become partner because all of those associates choose to leave after their fifth year; none of them were ever considered for partner.(SS No. 2.) Margaret Polisi also had better grades than all of these associates in previous years. (SS No. 1.) Margaret Polisi's fifth year was also the year that her father was diagnosed with and later died from Cancer, something none of the other associates in her class had to deal with. (SS No. 3.) Further, in her Sixth-Year Evaluation, which occurred after her C, Margaret Polisi was said to be a “[g]ood candidate for partnership.” (SS No. 4.) Margaret Polisi's seventh year performance, while lower than her previous year, was graded the same as Michael DeAngelo's, who made partner. (SS No. 5,6.) At the very minimum, the above raises triable issues of material fact as to whether the Defendant's alleged nondiscriminatory purpose was actually that or merely untrue or pretextual. As such, summary adjudication is inappropriate. C. SUMMARY ADJUDICATION IS INAPPROPRIATE BECAUSE DEFENDANT CLARK'S ACTIONS WERE UNWANTED OR THERE IS A DISPUTE OF MATERIAL FACT AS TO WHETHER THEY WERE. 1. This quid pro quo case is based upon the rejection of unwanted sexual advances that accompanied the end of the relationship, not any prior events. Margaret Polisi states a valid quid pro quo sexual harassment action based on a rejection of unwanted sexual advances theory. The Karibian court makes it clear that “once an employer conditions any terms of employment upon the employee's submitting to unwelcome sexual advances, a quid pro quo claim is made out, regardless of whether the employee (a) rejects the advances and suffers the consequences, or (b) submits to the
  5. 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication advances in order to avoid those consequences.” (Karibian v. Columbia Univ. (2nd Cir. 1994) 14 F.3d 773, 779.) Focusing on the correct conduct makes the quid pro quo here obvious. The quid pro quo here is not that Margret Polisi once refused to submit to Defendant Clark’s advances in a hotel room (SS No. 18), it’s that when Margaret Polisi stopped having a sexual relationship with Defendant Clark he made it so she couldn’t get enough work to either make partner or stay employed at Parker & Gould. This was Defendant Clark’s normal operating procedure. He would enter into a sexual relationship with a woman who he was supervising then when the relationship was over he would sabotage the woman’s work load until they were forced to leave. (SS No. 21, 22.) It happened to Karen Newman. (SS No. 21.) It happened to numerous other women who once worked at Parker & Gould. (SS No. 22.) And most recently it happened to Margaret Polisi. That the relationship was not unwanted while it was going on is of no consequence. The terms of Margaret Polisi’s employment shifted as soon as she rejected Defendant Clark’s advances by ending their relationship. He made this clear by stating outright “You're all the same. You don't realize when you've got a good thing going. You'll regret this, I promise you.” (SS No. 20.) Consequently, by being subject to adverse consequences by rejecting unwanted sexual advances, Margaret Polisi has set forth a valid claim for quid pro quo sexual harassment. 2. Minimally, there is a triable issue of material fact as to whether Defendant Clark’s actions were welcome. There is, at minimum, a genuine issue of material fact as to whether Defendant Clark’s actions were welcome or not. Prospect Airport offers a perfect example as to just want can raise a genuine issue of material fact as to unwelcomeness. (See EEOC v. Prospect Airport Servs. (9th Cir. 2010) 621 F.3d 991, 998.) Just like in Prospect Airport, Margaret Polisi stated under oath that the conduct was unwelcome. (SS No. 8, 10, 11, 13, 15, 25.) Just like in Prospect Airport, Polisi had no prior relationship with her harasser.
  6. 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication Just like in Prospect Airport, Margaret Polisi did not approach her harasser. Just like in Prospect Airport, Margaret Polisi told her harasser expressly and plainly that she didn’t want a relationship with him. (SS No. 19.) Just like in Prospect Airport, Margaret Polisi explained her response to her harasser plausibly. (SS No. 19.) The analogy is clear. Furthermore, the Prospect Airport court expressly stated that “[s]ome recipients of sexual advances doubtless have difficulty coming up with a tactful way to refuse them without damaging their ability to get along at work, so unwelcomeness may in some cases be unclear.” Id. at 998. The same is plainly true here. Margaret Polisi’s comment that she did not want to seem like a “hysterical woman” demonstrates just this sort of lack of tactful way to refuse without damaging one's ability to get along at work. (SS No. 15.) Given the above analogy with Prospect Airport, it is clear that this case, at minimum, establishes a genuine issue of material fact as to whether Defendant Clark’s actions were welcome or not. D. SUMMARY ADJUDICATION IS INAPPROPRIATE BECAUSE DEFENDANT CLARK'S ACTIONS WERE BASED ON SEX OR THERE IS A DISPUTE OF MATERIAL FACT AS TO WHETHER THEY WERE. 1. No controlling or well reasoned law supports that Defendant Clark's actions were not based on sex. No controlling or persuasive reasoning suggests that Defendant Clark's actions were not based on sex. Numerous courts have considered the rule that firings after break ups are not based on sex and rejected it outright. (See, e.g. Forrest v. Brinker Intern. Payroll Co., LP (1st Cir. 2007) 511 F.3d 255, 230 ("In cases involving a prior failed relationship between an accused harasser and alleged victim, reasoning that the harassment could not have been motivated by the victim's sex because it was instead motivated by a romantic relationship gone sour establishes a false dichotomy. Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim's sex is inextricably linked to the harasser's decision to harass.") and Perks v. Town of Huntington (S.D.N.Y.
  7. 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication 2003) 251 F.Supp.2d 1143, 1157 ("Boiled down to its essence, [defendant's] argument would mean that once a supervisor has engaged in a consensual relationship with an employee, he subsequently has carte blanche to harass that employee with impunity, even though the same behavior with respect to any other employee would constitute a Title VII violation. This argument makes little sense — prudentially or legally.”).) Given these cases which cast doubt on Defendant's purposed rule, the bizarre reasoning of that rule as explained by these cases, and the fact that the rule is not controlling here, there seems little reason to accept it. 2. Since much of the harassment occurred before the break up, any rule about harassment solely after a break up is inappropriate to apply to these facts. The rule that firings after break ups are not based on sex is ill-suited for use in this circumstance because it is only applicable to cases where all the harassment occurs after a break up. (See Succar v. Dade County School Bd. (11th Cir. 2000) 229 F.3d 1343 (where all of the alleged harassment occurred after the break up).) However, much of the harassment that occurred here happened even before the relationship. The harassment began with Defendant Clark's inappropriate touching and his inappropriate comments. (SS No. 7, 9, 11, 12, 14, 16, 17, 25.) While Defendant Clark's harassment persisted past their break up, it is completely incoherent to suggest that Defendant Clark's inappropriate actions were based on personal animosity over a breakup of a relationship that hadn't happened yet. As such, this rule is completely inapplicable to this case. 3. An inference can be drawn from Defendant Clark's frequent relationships with female employees that his actions were based on sex. Defendant Clark's long history of being a Lothario suggests that his actions regarding Margaret Polisi were based on sex. An inference that an alleged harasser's conduct was based on sex can be drawn from previous behavior of making advances toward employees of the same sex as a plaintiff.(See Walko v. Acad. of Bus. & Career Dev., L.L.C. (N.D. Ill. 2006) 493 F.Supp.2d 1042 .) Defendant Clark is known as an
  8. 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication office Lothario for good reason. (SS No. 23.) He openly admits to having at least ten sexual relationships with female employees of Parker & Gould. (SS No. 24.) As such, an inference can be drawn that his actions toward Margaret Polisi were motivated by sex. 4. At the very least, there is a triable issue of material fact as to whether Defendant Clark's actions were based on sex. The question as to whether Defendant Clark was motivated by personal animosity or by sex itself makes summary judgment inappropriate. Whether a person is motivated by sex or personal animosity is itself a question for the jury. (See Moberly v. Midcontinent Commun. (S.D.S.D. 2010) 711 F.Supp.2d 1028.) Here, there is a material question as to whether Defendant Clark was motivated purely by personal animosity or by Margaret Polisi's sex. Defendant's contention coupled with the above discussion marks this clear. As such, summary adjudication is inappropriate because there is a dispute of material fact. E. SUMMARY ADJUDICATION IS INAPPROPRIATE BECAUSE DEFENDANT CLARK'S ACTIONS WERE SEVERE AND PERVASIVE OR THERE IS A DISPUTE OF MATERIAL FACT AS TO WHETHER THEY WERE. 1. Margaret Polisi's comments make it clear that she felt subjectively offended by Defendant Clark's conduct towards her. Margaret Polisi was subjectively offended by Defendant Clark's conduct. A showing of actual offense satisfies the subjective component of the severe and pervasive test. (Fisher v. San Pedro Peninsula Hospital (Cal. Ct. App. 2D 1989) 214 Cal.App.3d 590, 609.) Margaret Polisi's deposition testimony makes it clear that she believed that Defendant Clark's actions were sexual in nature. Throughout Margaret Polisi's deposition she states that Defendant Clark's touching “was not overly sexual.” (Defendant’s SS No. 25.) This language makes it clear that Margaret Polisi thought that the conduct was sexual in nature. To suggest that the word “overly” modifies the meaning of the word
  9. 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication “sexual” in such a way that it is no longer means “sexual” is to misapprehend how this adverb works. Further, Margaret Polisi's statement that she “really didn’t think much of [Defendant Clark's comments] at the time” implies that she thought they were offensive at a later point in time. (SS No. 25.) Margaret Polisi's offense at Defendant Clark's conduct is in no way undermined by her belief that Defendant Clark was a good litigator when he wasn't sexually harassing her. Margaret Polisi's rejection of Defendant Clark's explicit sexual advance during their business trip does not suggest that Margaret Polisi lacked a subjective belief that she was being harassed. Margaret Polisi did not think at all about the ramifications of her rejecting Defendant Clark's advances, she was “surprised and [] jumped out of [her] chair.”(SS No. 18.) Further, that it took a couple of days for things to get back to “normal” between the two suggests that those couple of days were especially uncomfortable. It is also important to keep in mind what “normal” was for Defendant Clark: frequently making inappropriate comments towards Margaret Polisi and continuing to touch her against her will. (SS No. 7, 9, 11, 12, 14, 16, 17, 25.) Margaret Polisi's inability to rid her working environment of Defendant Clark also suggests an abusive working environment. Margaret Polisi was unable to do anything about Defendant Clark's offensive conduct because she was concerned that speaking out against it would harm her chances at promotion. (SS No. 15.) This inability to affect change in one's environment is apt to lead to a sense of abuse from that environment. That this feeling might have later subsided does not change Margaret Polisi's contemporaneous belief that she was in an abusive environment. Given the above, it is clear that Margaret Polisi was subjectively offended by Defendant Clark's actions.
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication 2. Defendant Clark's actions altered the conditions of Margaret Polisi's employment thereby showing the harassment was severe and pervasive. The conditions of Margaret Polisi's employment were altered by the actions of Defendant Clark. A showing of altered conditions of employment demonstrates that discrimination is severe and pervasive. Id. at 609. Defendant Clark's frequent inappropriate comments and unwanted touching made it impossible for Margaret Polisi to ever feel comfortable at work thereby changing the conditions of her employment. Further, and more insidious, was that altered conditions of Margaret Polisi's employment after she broke up with Defendant Clark. At that point Margaret Polisi was in the position of either getting back together with Defendant Clark or not having enough work to stay employed at Parker & Gould. As mentioned above, this second altered condition of employment is based on Defendant Clark's threat, Karen Newman's belief that the same happened to her and other woman at Parker & Gould who had relationships with Defendant Clark, as well as Margaret Polisi's own experience with the same. (SS No. 21, 22.) Given these two ways in which the terms of Margaret Polisi's employment were altered, it is clear that Defendant's Clark's actions amount to harassment. 3. Minimally, there is a triable issue of material fact as to whether Defendant Clark's actions were severe or pervasive. The above discussion shows, at minimum, that there is a triable issue of material fact as to whether Defendant Clark's actions were severe or pervasive enough to constitute harassment. As such, summary adjudication is inappropriate.
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication IV. CONCLUSION It's time for Defendant Clark's sexually harassing behavior to be stopped. He must learn that the women at Parker & Gould are not his personal sexual playthings. Based on the forgoing Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Adjudication, this court should deny summary adjudication on the first and second causes of action and show Defendant Clark that his behavior will no longer be tolerated. Dated: March 18, 2014 PENN & TELLER, LLP By:SudoNim SUDO NIM ATTORNEY FOR PLAINTIFF MARGARET POLISI

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