MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant’s Motion for Summary Judgment, filed August 4, 2006 (Doc. 64)(“Summary Judgment Motion”); and (ii) Plaintiff Loretta Grado’s Motion for Partial Summary Judgment, filed August 4, 2006 (Doc. 66)(“Partial Summary Judgment Motion”). The Court held a hearing on the motions on October 31, 2006. The primary issues are: (i) whether Plaintiffs Loretta Grado
1
and the Equal Employment Opportunity Commission (“EEOC”) have presented sufficient evidence that there are genuine issues of material fact concerning the constituent elements of their claims against Defendant University of Phoenix, Inc. (“University”) for sexual harassment, retaliation, intentional infliction of emotional distress, and negligent supervision; (ii) whether the Plaintiffs can seek punitive damages at trial; and (iii) whether the University or the Plaintiffs are entitled to summary judgment on the
Faragher/Ellerbh
defense. Because the Court finds that disputed issues of material fact preclude the granting of judgment as a matter of law on the claims for sexual harassment, retaliation, and negligent su
FACTUAL BACKGROUND
The University employed Grado as a Program Specialist at the Santa Teresa Campus from July 1, 2003 through May 28, 2004. See Plaintiff Loretta Grado’s Statement of Undisputed Facts at 1, filed August 4, 2006 (Doc. 67)(“Grado’s Fact Statement”); id., Exhibit 14, Deposition of Loretta Grado at 20:18-21:2 (taken March 8, 2006)(“Grado Depositiоn”); Defendant’s Response to Plaintiff Loretta Grado’s Separate Statement of Facts at 1, filed August 28, 2006 (Doc. 81)(“Defendant’s Fact Response”). As a Program Specialist, Grado entered new student information into databases, submitted transcripts to other institutions, counseled students regarding transcripts and credits, and administered College Level Examination Program testing. See Grado Deposition at 34:9-25; Defendant’s Fact Response at 1. Grado’s immediate supervisor at Santa Teresa was Brian Russo; Russo’s immediate supervisor was Pamela Snow-Armendariz. See Grado Deposition at 35:5-18; Defendant’s Fact Response, Exhibit A, Deposition of Pamela Snow-Armendariz at 69:17-24 (taken April 21, 2006)(“Snow-Armendariz Deposition”). Grado had occasion to report to both Russo and Snow-Armendariz. See Grado Deposition at 35:5-18. Manuel (“Manny”) Ortiz was the Campus Director during Grado’s employment at Santa Teresa. See Grado’s Fact Statement, Exhibit 16, Deposition of Brian Russo, Vol. I, at 30:22-31:4 (taken March 7, 2006)(“Russo Deposition”); Defendant’s Fact Response at 2.
Before Grado complained about Ortiz’ behavior, at least one other employee had complained to the University about Ortiz’ behavior. See Grado’s Fact Statement, Exhibit 2, Letter from Angela Rowe Lutt-rell to Laura Palmer Noone (dated July 28, 2003). Angela Luttrell, a Finance Counselor at the Santa Teresa Campus, wrote a letter to University President Laura Palmer Noone regarding what she perceived as Ortiz’ threatening behavior towards women. See id. Luttrell’s letter stated:
Mr. Ortiz has a very low opinion of women and treats them as inferiors. He is belligerent, hostile, and aggressive towards them. Not only did Mr. Ortiz threaten me, he slandered me in front of a large group of my peers.... Iam not the first woman he had treated this way, I am aware of others.
Id.
at 2. The University investigated Lutt-rell’s complaint, conducting interviews of Luttrell and other employees.
See
Defendant’s Fact Response, Exhibit C, Deposition of Christine J. Springfield, Vol. II, at 199:2-203:19 (taken July 13, 2006)(“Spring-field Deposition”). During the investigation, the University received an anonymous e-mail that stated: “When you guys are done covering Manny’s ass, maybe you can look into the employees he sexually harasses and the student he is sleeping
The University has, and at the time of Grado’s employment had, a Discrimination and Harassmеnt Policy. See Grado’s Fact Statement, Exhibit 5, Discrimination and Harassment Policy; Defendant’s Fact Response at 4. The University’s Discrimination and Harassment Policy requires employees who believe they are victims of sexual harassment to report the harassment to their supervisors, the Human Resources Department, or the Employee Services Department. See Grado’s Fact Statement, Exhibit 5, Discrimination and Harassment Policy; Defendant’s Fact Response at 4. The University’s Discrimination and Harassment Policy requires supervisors to report incidents of sexual harassment of which they are aware to the Human Resources Department. See Gra-do’s Fact Statement, Exhibit 15, Deposition of April Harper at 32:4-24 (taken April 13, 2006)(“Harper Deposition”).
Grado reported Ortiz’ harassment of her to Russo and Snow-Armendariz. See Gra-do Deposition at 61:1-25; id. at 66:13-68:25; id. at 131:8-23; id. at 186:18-187:25. Grado first informed Russo in July or August 2003 of her concern about the constant attention Ortiz gave her. See id. at 66:13-18. Grado and Chris Camp told Russo about a number of incidents involving Ortiz’ inappropriate behavior towards Grado. See id. at 60:1-61:18; id. 67:9-16; id. at 68:11-69:3; id. at 84:14-85:7; Grado’s Fact Statement, Exhibit 13, Deposition of Chris Camp, Vol. I, at 232:6-9 (“Camp Deposition”).
Russo acknowledged that Grado may have complained to him about Ortiz’ conduct as many as twenty times. See Russo Deposition, Vol. II, at 79:23-80:2. Russo and Snow-Armendariz testified that they did not report Ortiz’ alleged harassment of Grado to the Human Resources Department, because they feared retaliation from Ortiz. See Russo Deposition, Vol. I, at 209:14-24; Snow-Armendariz Deposition at 127:14-22; id. at 171:3-12. Russo also testified, however, that he remembered Grado complaining to him only once about Ortiz’ behavior before the University began its investigation of sexual harassment allegations against Ortiz, and that her concern regarded Ortiz frequently calling her work phone and coming by her cubicle. See Russo Deposition, Vol. II, at 98:18-99:25; id. at 102:3-22. Snow-Armendariz testified that, while Grado informed her that Ortiz made her feel uncomfortable, she was not sure if the conduct Grado described constituted a violation of the University’s sexual harassment policy. See Snow-Armendariz Deposition at 127:14-129:6; id. 171:13-25.
On February 10, 2004, the University recеived an anonymous complaint raising several issues about Ortiz’ management of the Santa Teresa Campus. The complaint
Lately Manny has been behaving very rude and mean to me and the others (but mostly us women) here at work — Some of us have seen him bullying different women in different departments, using sex and the fact that he is stronger than them. We are scared. I know I am not the only one to see this happen.
February 10, 2004 Letter.
The University immediately began an investigation into the anonymous complaint. See Harper Deposition at 83:1-84:9. On February 11, 2004, the University conducted random employee interviews at Santa Teresa. See id. at 117:4-24; Defendant’s Separate Statement of Facts in Support of its Motion for Summary Judgment, filed August 4, 2006 (Doc. 65)(“Defendant’s Fact Statement”), Exhibit B, Attachment 56, Investigation Summаry (dated February 18, 2004)(“February 18, 2004 Investigation Summary”). Grado was one of thirteen employees the University interviewed that day. See Harper Deposition at 83:1-84:9; February 18, 2004 Investigation Summary.
As a result of those interviews, the University placed Ortiz on administrative leave, pending the final outcome of the investigation. See Defendant’s Fact Statement, Exhibit C, Deposition of Tracy Bon-jean, Vol. II, 29:4-30:19 (taken July 12, 2006). On February 18, 2004, a University investigator interviewed Ortiz concerning the allegations against him. See February 18, 2004 Investigation Summary. Also on February 18, 2004, the University received an e-mail from Grado, stating that she “was unable to give a detailed report of the incidents” during her February 11, 2004 interview, and including an attachment containing a more detailed description of “the incidents.” Defendant’s Fact Statement, Exhibit B, Attachment 61, E-mail from Loretta Rodriguez to April Harper (dated February 18, 2004).
In her February 18, 2004 communication to the University, Grado stated that Ortiz called her and came by her cubicle excessively, asked her personal questions, told her that, to him, “partying” meant kissing and having sex, asked her if she liked to party, showed her a yearbook picture of himself and talked about how good he looked in it, offered to pay for a hotel room, and demeaned women continuously. See id. The University asserts that Gra-do’s allegations against Ortiz were included in the investigation that led to his termination. See Harper Deposition at 134:20-135:11. Grado contends, however, that the University never investigated her specific allegations of sexual harassment against Ortiz, or her supervisors’ failure to report complaints about Ortiz’ behavior up the University’s chain of command. See Grado Fact Statement at 2; Grado’s Opposition at 12.
At the conclusion of its investigation, and after unsuccessful attempts to reach an amicable separation, the University terminated Ortiz on April 16, 2004.
See
Defendant’s Fact Statement, Exhibit D, Attachment 12, Termination Letter from Tracy Bonjean to Manuel Ortiz (dated April 16, 2004). Ortiz had received, on several occasions, training on the University’s sexual harassment policies.
See
Defendant’s Fact Statement, Exhibit D, Deposition of Manuel Ortiz at 93:13-95:17 (taken April 11, 2006)(“0rtiz Deposition”);
id.,
Attachment 4. There is evidence, however, that supervisors and employees at the Santa Teresa campus did not take
On April 21, 2006, the University received the Charge of Discrimination that Grado had filed with the EEOC on April 15, 2006. See Defendant’s Fact Statement, Exhibit E, Notice of Charge of Discrimination (dated April 20, 2006). The Charge of Discrimination includes allegations that Ortiz sexually harassed Grado by asking her sexual questions and calling her work phone and visiting her cubicle excessively, that the Human Resources Department did not properly investigate her complaints about Ortiz, and that she was not chosen for a promotion to a Financial Aid Counselor position in retaliation for refusing Ortiz’ advances. See id. Grado continued to work for the University at the Santa Teresa Campus until May 28, 2004, when she resigned to accept employment with another company. See Gradо Deposition at 206:1-23; Defendant’s Fact Statement, Exhibit A, Attachment 13, Resignation Letter from Loretta Grado to Pam Snow and Brian Russo.
At her March 8, 2006 deposition, Grado described several examples of Ortiz’ behavior towards her, she testified: (i) that Ortiz showed her pictures of his high school yearbook and asked her if she thought he was good looking, see Grado Deposition at 55:13-17; (ii) that Ortiz asked her to leave the building with him because he had something to show her, see id. at 74:11-15; (iii) that Ortiz asked her when she was going to give in, see id. at 86:10-24; (iv) that Ortiz ran his fingers through her hair, see id. at 51:25-52:7; and (v) that Ortiz tried to kiss her, see id. at 89:14-19. Grado also alleged that Ortiz retaliated against her for refusing his advances. She testified that Ortiz told her about an open Financial Aid Counselor position, see id. 78:15-24, that Ortiz encouraged her to apply for the position, see id., that Ortiz said he would waive the University’s standard requirement that an employee be in a position for at least six months before moving to another position, see id. at 79:1-3, that Ortiz interviewed her for the position, see id. at 81:19-25, and that, the day before the filling of the position was announced, she refused a request by Ortiz to party, see id. at 196:1-3. Ortiz hаd the final say in determining who would fill the Financial Aid Counselor position. See Russo Deposition, Vol. I, at 148:15-23; Snow-Armendariz Deposition at 133:18-22. When Grado questioned Ortiz about why she did not receive the position, however, Ortiz told her that it was not his decision. See Grado Deposition at 83:20-23.
Grado first interviewed for the Financial Aid Counselor position with Financial Aid Manager Jimmy Armendariz. See Defendant’s Fact Statement, Exhibit G, Deposition of Jaime Armendariz at 84:2-87:19 (taken March 8, 2006)(“Armendariz Deposition”); Grado’s Opposition at 14. Grado then interviewed with Accounting Manager Rocío Martinez. See Armendariz Deposition at 84:2-87:19. Martinez selected another candidate over Grado to advance to the final interview stage with Ortiz, because Martinez believed the other candidate had performed better in the interview and had stronger recommendations. See Defendant’s Fact Statement, Exhibit H, Deposition of Rocio Martinez at 83:14-84:18. Martinez made her selection on November 17, 2003, without having any conversations with Ortiz about the selection process. See id. at 84:21-85:2.
Additionally, Grado testified that, as a result of Ortiz’ conduct, she had between five and ten nightmares, suffered loss of sleep, saw a doctor twice for her emotional distress and sleeping problems, and took some sample medications that the doctor
PROCEDURAL BACKGROUND
On September 30, 2005, the EEOC filed its initial Complaint, alleging, pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, that Grado and Lorena Pinon were subjected to sexual harassment, which created a hostile work environment, and retaliation. See Complaint/Jury Trial Demand, filed September 30, 2005 (Doc. 1). The EEOC filed its First Amended Complaint on October 12, 2005, correcting typographical errors contained in paragraph eight of its initial Complaint. See First Amended Complaint/Jury Trial Demand at 1, 3, filed October 12, 2005 (Doc. 3).
On January 31, 2006, Pinon filed her Motion to Intervene. See Motion to Intervene, filed January 31, 2006 (Doc. 14). The Court granted Pinon’s motion on February 26, 2006. See Order, filed February 26, 2006 (Doc. 17). Subsequently, on February 13, 2006, Pinon filed a Complaint, which includes federal claims for harassment and retaliation, and state law claims for constructive discharge, breach of contract, and negligent supervision. See Complaint for Damages for Sexual Harassment, Retaliation, Constructive Discharge, Breach of Contract and Negligent Supervision and Retention, filed February 13, 2006 (Doc. 18).
Similarly, Grado filed a motion to intervene, pursuant to rule 24(a) of the Federal Rules of Civil Procedure and 42 U.S.C. § 2000e~5(f)(l), on February 22, 2006. See Motion to Intervene at 1, filed February 22, 2006 (Doc. 19). On May 10, 2006, the Court granted Grado’s motion and her leave to file a complaint. See Memorandum Opinion and Order, filed May 10, 2006 (Doc. 49). Grado’s Complaint, which was filed on May 26, 2006, includes federal claims for quid pro quo sexual harassment, hostile working environment, and retaliation, and state law claims for negligent supervision, intentional infliction of emotional distress, and breach of implied contract. See Complaint of Intervenor Loretta Grado at 13-15, filed May 26, 2006 (Doc. 52).
On August 4, 2006, the University filed a summary judgment motion requesting that the Court grant judgment in its favor on all of Grado’s claims, the issue of punitive damages, and the Faragher /Ellerth defense. See Summary Judgment Motion at 1, 7-23. The University argues that, even when the facts are viewed in the light most favorable to the Plaintiffs, the Plaintiffs cannot satisfy one or more of the legal elements for each of the claims they bring or for punitive damages to be applicable. See id. Further, the University contends that there is not a genuine issue of material fact concerning whether it can satisfy the elements of the Faragher /Ellerth defense, and that, therefore, it is entitled to summary judgment on the Plaintiffs’ sexual harassment claims. See id. at 14-15.
Also on August 4, 2006, Grado filed her partial summary judgment motion. See Partial Summary Judgment Motion at 1. Grado argues that, even when the facts are viewed in the University’s favor, it cannot satisfy the legal elements of the Faragher /Ellerth defense it asserts, and that, as such, the Court should enter summary judgment on that issue for the Plaintiffs.
On August 16, 2006, Pinon and the University, pursuant to rule 41(a)(1) of the Federal Rules of Civil Procedure, stipulated to the dismissal, with prejudice, of all
On August 29, 2006, Grado filed Plaintiff-Intervenor Loretta Grado’s Opposition to Defendant’s Motion for Summary Judgment. See Plaintiff-Intervenor Loretta Grado’s Opposition to Defendant’s Motion for Summary Judgment, filed August 29, 2006 (Doc. 82)(“Grado’s Opposition”). In her Opposition, Grado states that she is no longer pursuing her breach of contract claim. See id. at 39 n. 7.
LAW REGARDING SUMMARY JUDGMENT
Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett,
If a defendant seeks summary judgment, it has an “initial burden to show that there is an absence of evidence to support the nonmoving party’s case.”
Munoz v. St. Mai"y~Corwin Hosp.,
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Id.
at 322-23,
LAW REGARDING SEXUAL HARASSMENT
1. Quid Pro Quo.
Section 703(a) of Title VII forbids an employer “[i] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). “When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.”
Burlington Indus., Inc. v. Ellerth,
“The gravamen of a
quid pro quo
claim is that a tangible job benefit or privilege is conditioned on an employee’s submission to sexual blackmail and that adverse consequences follow from the employee’s refusal.”
Gary v. Long,
2. Hostile Environment.
“Quid pro quo
harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits. Alternatively, hostile work environment harassment arises when sexual conduct ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.’ ”
Hicks v. Gates Rubber Co.,
The relevant test is a disjunctive one, requiring that the harassing conduct be sufficiently severe
or
sufficiently pervasive.
See Smith v. Nw. Fin. Acceptance, Inc.,
An employer is subject to vicarious liability to a victimized employee for a supervisor’s creation of an actionable hostile environment, if the supervisor has immediate or successively higher authority over the employee.
See Faragher v. City of Boca Raton,
3. Affirmative Defense.
Pursuant to
Faragher v. City of Boca Raton
and
Burlington Industries, Inc. v. Ellerth,
a defending employer may raise an affirmative defense to liability for damages, subject to proof by a preponderance of the evidence.
See Faragher v. City of Boca Raton,
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case whenlitigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.
Faragher v. City of Boca Raton,
LAW REGARDING RETALIATION
To establish a case for retaliation, a plaintiff must show: “[i] that he engaged in protected opposition to discrimination[;][ii] that a reasonable employee would have found the challenged action materially adverse[;] and [iii] that a causal connection existed between the protected activity and the materially adverse action.”
Argo v. Blue Cross & Blue Shield of Kan.,
NEW MEXICO LAW REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The following elements must be proven to establish a claim of intentional infliction of emotional distress: “[i] the conduct in question was extreme and outrageous; [ii] the conduct of the defendant was intentional or in reckless disregard of the plaintiff; [iii] the plaintiffs mental distress was extreme and severe; and [iv] there is a causal connection between the defendant’s conduct and the claimant’s mental distress.”
Trujillo v. N. Rio Arri-ba Elec. Coop., Inc.,
NEW MEXICO LAW REGARDING NEGLIGENT SUPERVISION
An entity may be held liable in tort for negligent supervision of an employee even though it is not responsible for the wrongful acts of the employee under the doctrine of respondeat superior.
See Los Ranchitos v. Tierra Grande, Inc.,
The proper standard for determining whether an employer should be held liable for negligent supervision or retention of an employee does not require proof of actual knowledge of the employee’s lack of skills or unfitness to perform such work, but whether the employer knew or reasonably should have known that some harm might be caused by the acts or omissions of the employee who is entrusted with such position.
Id. See Chavez v. Thomas & Betts Corp.,
LAW REGARDING PUNITIVE DAMAGES
Under Title VII, punitive damages are available if a plaintiff proves that an employer engaged in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”
Id.
at 1097 (quoting 42 U.S.C. § 1981a(b)(l)). “ ‘Malice’ and ‘reckless indifference’ in this context refer not to the egregiousness of the employer’s conduct, but rather to the employer’s knowledge that it may be acting in violation of federal law.”
Deters v. Equi-fax Credit Info. Seros., Inc.,
Employer malice and recklessness in failing to remedy or prevent sexual harassment of which management-level employees knew or should have known is premised on direct liability, not derivative liability. See id. at 1270. The relevant inquiry is whether the employer had actual or constructive knowledge of the harassment, and whether its response was adequate. See id. “When a company specifically designates a particular employee within the company as a final person responsible for enforcing that company’s policy against discrimination, then by the company’s own designation, information provided to such an employee is knowledge to the company.” Id. at 1270-71.
An employer cannot be held vicariously liable for punitive damages for the acts of a managerial employee, however, if the managerial employee’s actions were
With respect to negligent supervision, an award of punitive damages “is permissible upon a finding that the wrongdoer’s conduct was willful, wanton, malicious, reckless, oppressive, grossly negligent, or fraudulent and in bad faith.”
Chavez v. Thomas & Betts Corp.,
ANALYSIS
Because the Court finds that disputed issues of material fact preclude the granting of summary judgment on Grado’s sexual harassment, retaliation, negligent supervision, and punitive damages claims, the Court will deny the University’s motion with respect to those claims. The Court also finds that material factual disputes prohibit the granting of summary judgment on both the University’s and Grado’s summary judgment requests concerning the Faragher /Ellerth defense. Accordingly, the Court will deny the University’s and Grado’s motions insofar as they relate to that affirmative defense. Finally, the Court concludes that, viewing all of the relevant facts in the light most favorable to Grado, Grado has not established that she can satisfy the legal elements necessary to succeed on an intentional infliction of emotional distress claim. The Court will, therefore, grant the University’s request for summary judgment on Grado’s intentional infliction of emotional distress claim.
A. SEXUAL HARASSMENT
The Court concludes that summary judgment in favor of the University is not warranted on Grado’s quid pro quo and hostile environment claims. The Court also concludes that it should not grant summary judgment to either the University or Grado on the Faragher /Ellerth defense.
1. Quid Pro Quo.
The University moves for summary judgment on Grado’s
quid pro quo
sexual harassment claim based upon the assertions that Grado does not have any evidence to support her contention that Ortiz conditioned her receiving the Financial Aid Counselor position on accepting his sexual overtures, and that the undisputed facts demonstrate that Ortiz was not involved with the Financial Aid Counselor hiring decision.
See
Summary Judgment Motion at 12-13. The Court believes, however, that there are genuine issues of material fact, which preclude granting the
Grado has presented evidence that Ortiz behaved inappropriately and made repeated sexual advances towards her bеfore, after, and during their discussions about the Financial Aid Counselor position. See Grado Deposition at 51:25-52:7; id. at 55:13-17; id. at 74:11-15; id. at 78:12-24; id. at 79:1-3; id. at 81:19-25; id. at 86:10-24; id. at 89:14-19; id. at 196:1-3. Moreover, despite the University’s argument that Armendariz and Martinez, and not Ortiz, made the Financial Aid Counselor hiring decision, Grado has presented evidence that Ortiz had the final say in determining who would fill the position, see Russo Deposition, Vol. I, at 148:15-23, Snow-Armendariz Deposition at 133:18-22, that Ortiz interviewed her for the position, see Grado Deposition at 79:1-3, and that Ortiz asked her if she would like to go party, a request she refused, the day before the filling of the position was announced, see id. at 196:1-3.
Considering the inconsistencies in the record concerning the association between Ortiz’ allegedly harassing behavior and his discussion of the Financial Aid Counselor position, the disputed contentions regarding Ortiz’ level of involvement with filling the Financial Aid Counselor position, that an express statement from Ortiz linking employment benefits to Grado’s submission to his sexual advances is not required, see
Brandau v. Kansas,
2. Hostile Environment.
The University contends that summary judgment is warranted because Grado’s allegations do not meet the legal standard of severity or pervasiveness necessary to make out a hostile environment claim.
See
Summary Judgment Motion at 8. The Court, however, believes that Grado has presented evidence sufficient to survive a request for summary judgment on this claim. By including within her complaint a claim for hostile environment and presenting evidence that Ortiz’ conduct made her uncomfortable, upset, and led her to ask Russo if she should be concerned about sexual harassment,
see
Grado Deposition at 60:20-25,
id.
at 68:11-23, Russo Deposition, Vol. I, at 12:20-13:2, Grado established that she believed Ortiz’ conduct towards her was severe enough to create a hostile environment,
see Smith v. Nw. Fin. Acceptance, Inc.,
3. Affirmative Defense.
Both the University and Grado move for summary judgment on the
Far-agher/Ellerth
defense. That affirmative defense to sexual harassment claims comprises two necessary elements: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any employer provided preventive or corrective opportunities or to avoid harm otherwise.
See Faragher v. City of Boca Raton,
Grado, however, presents evidence that Russo was informed numerous times about various incidents involving Ortiz’ inappropriate sexually harassing conduct towards her. See Grado Deposition at 60:1-61:18; id. at 66:13-68:25; id. at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9. Indeed, Russo testified that Grado may have complained to him about Ortiz as many as twenty times. See Russo Deposition, Vol II, at 79:23-80:2. The Court believes that whether the Faragher /El-lerth defense applies depends, in large part, on when and to what extent Grado reported Ortiz’ harassing behavior to Russo; the Court believes that facts concerning communicаtions between Grado and Russo about Ortiz may determine whether the two Faragher /Ellerth elements are met in this case.
Further, the Court notes that the
Far-agher/Ellerth
defense is not available where a tangible adverse employment action was taken against the plaintiff-employee.
See Faragher v. City of Boca Raton,
B. RETALIATION
The Court will not grant the University summary judgment on Grado’s retaliation claim. The University argues that Armendariz and Martinez, not Ortiz, decided who to hire for the Financial Aid Counselor position. See Summary Judgment Motion at 16. The University also contends that Grado cannot establish a causal link between her complaints and her not receiving the promotion to the Financial Aid Counselor position. See
id.
Grado raises disputed issues of material fact, however, concerning whether Ortiz had the final say in who would receive the Financial Aid Counselor position,
see
Russo Deposition, Vol I, at 148:15-23, Snow-Armendariz Deposition at 133:18-22, regarding her engaging in protected conduct — denying an invitation from Ortiz to party — the day before the filling of the position was announced,
see
Grado Deposition at 196:1-3, and respecting whether Ortiz took the adverse employment action — not promoting Grado to the Financial Aid Counselor position — against her because she refused his invitation and advances,
see id.
The Court notes that a plaintiff can demonstrate the requisite causal connection by showing a very close proximity between the protected. activity and the retaliatory conduct.
See O’Neal v. Ferguson Constr. Co.,
Given the disputed facts concerning Ortiz’ involvement with filling the Financial Aid Counselor position, and considering Grado’s contention that she engaged in protected activity by refusing Ortiz’ invitation and that the announcement that someone else would be filling the position came the day after the protected refusal, the Court concludes that judgment as a matter of law is not warranted with respect to Grado’s retaliation claim.
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Court will grant the University summary judgment on Grado’s intentional infliction of emotional distress claim. To prevail on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate that he or she suffered extreme and severe mental illness.
See Trujillo v. N. Rio Arriba Elec. Coop., Inc.,
The Court finds that, even taking all of the relevant facts in the light most favorable to Grado, Grado has not presented evidence of extreme and severe emotional distress. The evidence Grado presents with regard to her intentional infliction of emotional distress claim does not create a genuine issue of material fact precluding the granting of judgment as a matter of law. Grado asserts that Ortiz’ behavior towards her made her feel like vomiting, caused her to have between five and ten nightmares, caused her to lose sleep, led her to seek medical assistance, led her to take some sample medications her physician provided, and prevented her from caring for her children for a month, because she was too tired and emotionally distracted to do so. See Grado Deposition at 60:20-25; id. at 218:3-221:25; id. at 227:20-228:25.
The Court finds that those facts are insufficient to meet the high standard necessary to establish the extreme and severe
D. NEGLIGENT SUPERVISION
The University contends that it is entitled to summary judgment on Grado’s negligent supervision claim, because she cannot show that a genuine issue of material fact exists regarding whether Ortiz engaged in a wrongful act that injured her and because she cannot demonstrate that the University was negligent in supervising Ortiz. The Court disagrees. Grado has presented evidence raising issues of material fact concerning whether Ortiz’ conduct was wrongful and injurious.
Grado has presented evidence demonstrating that Ortiz violated her right to be free from discrimination and retaliation.
See
E-mail from Loretta Rodriguez to April Harper; Grado Deposition at 51:25-52:7;
id.
at 55:13-17;
id.
at 74:11-15;
id.
at 86:10-24;
id.
at 89:14-19;
id.
at 196:1-3. Further, Grado presented evidence that she frequently reported the extent of Ortiz’ harassing behavior to Russo,
see id.
at 60:1-61:18;
id.
at 66:13-69:3;
id.
at 84:14-85:7, and the Court believes that such evidence raises issues of fact regarding the University’s knowledge of Ortiz’ unfitness to perform the job of campus administrator. The Court notes that a plaintiff-employee need only prоve that the employer-defendant knew or reasonably should have known that an employee might cause some harm.
See Chavez v. Thomas & Betts Corp.,
E. PUNITIVE DAMAGES
The Court disagrees with the University’s contention that it is entitled to summary judgment on the issue of punitive damages. A plaintiff must establish malice or recklessness to recover punitive damages on a Title VII claim.
See Chavez v. Thomas & Betts Corp.,
Grado has presented evidence that Russo was her direct supervisor, see Grado Deposition at 35:5-18, Snow-Armendariz Deposition at 69:17-24, that, by its own designation, the company defined Russo as a final person responsible for enforcing its anti-discrimination policy, see Discrimination and Harassment Policy, and that, on numerous occasions, she and Camp informed Russo about the nature and extent of Ortiz’ sexually harassing behavior towards her, see 60:1-61:18; id. at 67:9-16; id. at 68:11-69:3; id. at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9. The Court believes that, as with several of the claims discussed above, the issue of punitive damages turns on what and when Grado told Russo about Ortiz’ behavior. The Court finds that Grado has raised issues of material fact sufficient to survive the University’s request for summary judgment on Title VII punitive damages.
The Court reaches the same conclusion with regard to whether the University is entitled to summary judgment concerning punitive damages associated with Grado’s negligent supervision claim. Grado may demonstrate that the University acted recklessly to recover punitive damages on her negligent supervision claim. Because, as noted in the preceding paragraph, Gra-do has presented evidence raising material factual issues concerning the University’s knowledge and whether its actions or omissions were reckless in the face of the knowledge it had, see Snow-Armendariz Deposition at 69:17-24, Grado Deposition at 35:5-18,
id.
at 60:1-61:18;
id.
at 67:9-16;
id.
at 68:11-69:3;
id.
at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9, Discrimination and Harassment Policy, the Court will deny the University’s request for summary judgment on this issue,
see Chavez v. Thomas & Betts Corp.,
Because the Court finds thаt Grado presented evidence that raises genuine issues of material fact with respect to her claims for sexual harassment, retaliation, negligent supervision, and punitive damages, the Court will deny the University’s request for summary judgment on those claims. Because the Court further finds that both the University and Grado have submitted evidence demonstrating genuine factual issues with regard to the Faragherj Ellerth defense, the Court will deny their opposing motions for summary judgment on that affirmative defense issue. Finally, because the Court concludes that, viewing all of the relevant evidence in the light most favorable to Grado, Grado cannot establish the elements necessary to satisfy an intentional infliction of emotional distress claim, the Court will grant summary judgment to the University on that claim.
IT IS ORDERED that the Defendant’s Motion for Summary Judgment is granted in part and denied in part. Summary judgment is entered in the University’s favor on Grado’s intentional infliction of emotional distress claim. All of the other requests for summary judgment contained within the University’s summary judgment motion are denied. The Court will also deny Plaintiff Loretta Grado’s Motion for Partial Summary Judgment.
Notes
. Loretta Grado was formerly known as Loretta Rodriguez.