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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.

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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.)

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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.”

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(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

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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.

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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.

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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

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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

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“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.

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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.

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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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