This is an action for employment discrimination under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiff Michelle Maliniak was an employee of the City of Tucson's Fire Department. She alleges that she was discriminated against based upon her gender during her employment with the Fire Department. Plaintiff asserts that

(Compl.¶ 10.) Plaintiff further alleges that

(Resp. to Def's. Mot. for S.J. at 12.)

Plaintiff claims that a key act of discrimination occurred on December 17, 2005, when Plaintiff discovered a sign posted on a truck parked behind her truck at her station, which said “F___K You Use Reverse B!*tch.” (Compl.¶ 14.) Plaintiff believed this message was directed at her. Following this December incident, Plaintiff was “compelled to take indefinite leave without pay from her employment with defendant.” (Compl.¶ 15.) Plaintiff filed a charge of discrimination against Defendant with the EEOC, and the EEOC subsequently issued Plaintiff a notice of right to sue.

The first count of Plaintiff's complaint alleges “Violation of Title VII–Sex Discrimination,” and states that “[t]he conduct of defendant in discriminating against plaintiff on the basis of her gender, including through a hostile work environment, constitutes sex discrimination.” Count II alleges “Violation of Title VII–Retaliation (Pre–Leave),” and states that “[t]he conduct of defendant in retaliating against plaintiff on the basis of her gender, including through a hostile work environment, constitutes sex discrimination.” Count III of the Complaint–‘Violation of Title VII–Retaliation (Post–Return)‘ alleges that once Plaintiff returned to work on January 22, 2007, following her administrative leave, she continued to face discriminatory behavior from male co-workers, including being falsely accused through written reprimands of insubordinate behavior.

*2 Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Initially, the burden rests upon the moving party to demonstrate that there is no genuine issue as to any material fact, and once this initial burden is met, it is then the opposing party's burden to demonstrate through production of probative evidence that an issue of fact remains to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). A court deciding a motion for summary judgment must view all evidentiary inferences in the light most favorable to the non-moving party. King County v. Rasmussen, 299 F.3d 1077, 1083 (9th Cir.2002). If significant factual issues remain, the motion should be denied. United States v. Carter, 906 F.2d 1375, 1377 (9th Cir.1990).

Defendant City of Tucson's Motion for Summary Judgment as to Counts I and II asserts that Maliniak has failed to allege facts that, even if true, would rise to the level of an actionable hostile work environment claim. Defendant states that “none of the[ ] acts [alleged by Plaintiff] constitute the verbal or physical conduct of a sexual nature required,” and that the “acts are more appropriately categorized as the downside of adults having to put up with the inconveniences of communal living, including sharing bathrooms, negotiating wake-up times, and putting up with some sophomoric humor.” (Mot. for S.J. at 11–12.) Defendant states that “[s]uch acts are not within the purview of Title VII, which is not a general civility code for the American workplace.” (Mot. for S.J. at 12) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)). Moreover, Defendant also argues that Plaintiff's claim is time barred. Defendant asserts that the only act that falls within the statutory period alleged by Plaintiff–the “Use Reverse Bitch” incident–was not part of the same unlawful employment practice as were the other acts.

Plaintiff, in contrast, argues that “it is clear that the continued, repetitive conduct of the males at Station 17 in relation to the women's bathroom intrusions and the cleaning problems created an increasingly hostile and abusive work environment for [Palintiff].” (Resp. to Def.'s Mot. for S.J. at 15.) Further, Plaintiff asserts that “[t]he argument that the December 2005 truck sign incident cannot be included in the unlawful employment practice ignores the sequence of events.” (Resp. to Def.'s Mot. for S.J. at 16.)

To survive a motion for summary judgment, a plaintiff alleging a hostile work environment based on sex discrimination must show that: (1) she was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. Porter v. California Dept. of Corrections, 419 F.3d 885, 891 (9th Cir.2005). A “totality of the circumstances” test is used to determine whether an environment was hostile, including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citation omitted). “Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Furthermore, the United States Supreme Court has acknowledged that “[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81–82 (1998).

*3 A hostile work environment claim is composed of a series of separate acts that together constitute one “unlawful employment practice.” Nat'l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (citing 42 U.S.C. § 2000e–5(e)(1)). The “unlawful employment practice” occurs over a series of days or even years; thus, hostile work environment claims are based upon the cumulative effect of individual acts. Id. at 11719. In order for a charge to be timely, the employee must file a charge within 300 days of any act that is part of the hostile work environment. Id. at 118.

Viewing all evidentiary inferences in the light most favorable to the non-moving party–here Plaintiff Maliniak–genuine issues of material fact remain, and it is thus not appropriate to dismiss Counts I and II on a motion for summary judgment. Plaintiff has alleged facts which, if true, satisfy the test from Porter and survive Defendant's motion for summary judgment. The various “bathroom incidents,” including offensive signs placed on the women's bathroom, two captains suggesting that Maliniak should be “more approachable,” etc., could, viewed in the light most favorable to Plaintiff, be viewed as unwelcome verbal conduct of a sexual nature sufficiently severe or pervasive as to alter the conditions of Plaintiff's employment and create an abusive work environment. Defendant's argument that such conduct was not “severe and pervasive” enough to rise to the level of discriminatory behavior causing a hostile work environment is an issue for the trier of fact to resolve.

Moreover, Defendant's argument that Plaintiff's charge was untimely is insufficient to justify granting a motion for summary judgment. Defendant's argument is, in essence, that the December 17, 2005 “Use Reverse Bitch” incident was not “really” discriminatory and was not actually related to the other, previous incidents of harassment and hostile behavior alleged by Plaintiff. However, a genuine issue remains as to whether or not this “sign incident” was simply a continuation of previous hostile behavior directed against Plaintiff, whether or not the sign was in fact directed at Plaintiff, and whether or not the other men on the shift would or should have realized that Plaintiff could find the sign offensive. Again, these questions are issues for the trier of fact to resolve. Accordingly, Defendant's Motion for Partial Summary Judgment is denied.

Plaintiff and Defendant are unable to resolve a discovery dispute related to various requests for production of documents that Plaintiff seeks from the City of Tucson. Specifically, Defendant objects to the following requests, stating that the requests “are– on their face–dramatically overbroad and call for communications, memos, letters, and/or emails over a sixteen-month period on one hand or a six-month period on the other, possibly yielding tens of thousands of documents that have no conceivable relevancy to the retaliation claim here.” (Def.'s Mot. for Protective Order at 2.) Defendant requests a protective order barring Plaintiff from obtaining the following documents requested in Requests No. 1 through 5 of the Third Set of Requests for Production:

Because it is impossible to determine whether the materials objected to by Defendant should be subject to a protective order without the Court first having viewed such materials, Defendant's request to provide the requested discovery to the Court for an in camera inspection so that the Court may decide whether the requested discovery is relevant or reasonably calculated to lead to the discovery of evidence is granted. See Def.'s Reply in Support of its Mot. for Protective Order at 7.)

Accordingly,

IT IS HEREBY ORDERED that City of Tucson's Motion for Partial Summary Judgment on Counts I and II (Doc. No. 115) is DENIED.

IT IS FURTHER ORDERED that Defendant City of Tucson's Motion for Protective Order (Doc. No. 114) is DENIED AS PREMATURE pending the Court's in camera inspection of requested discovery. The parties shall meet and confer and submit a joint proposed schedule for the submission of the discovery materials. Defendant City of Tucson is directed to prepare a detailed summary of the material submitted in each category.

Dated this 26th day of March, 2010.