Equal Employment Opportunity Commission v. Swissport Fueling, Inc. (916 F. Supp. 2d 1005, 2013)

United States District Court for the District of Arizona 2013-01-07

Citations

Full opinion text

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Defendant Swissport Fueling, Inc.’s (“Swissport”) Motion for Summary Judgment. (Doc. 239.) Also pending are the Equal Employment Opportunity Commission’s (the “EEOC”) Motion to Strike (Doc. 279) and Motion for Leave to File Surreply (Doc. 280). For the reasons discussed below, Swissport’s Motion for Summary Judgment is granted in part and denied in part. The EEOC’s Motion to Strike Reply is granted in part and denied in part, and its Motion for Leave to File Surreply is denied as moot.

BACKGROUND

Defendant Swissport provides fueling services to over twenty airlines at Sky Harbor Airport in Phoenix, Arizona. (Doc. 235 at ¶ 1.) Swissport hires fuelers to perform a variety of tasks at the airport, but their main job is to attach fuel lines to planes and monitor them to ensure that they receive the requisite amount of fuel. (Id. at ¶ 2.) During the time period relevant to this suit, Swissport employed fuelers who had emigrated from various countries in Africa, including Sudan, Nigeria, Ghana, and Sierra Leone. (Doc. 1 at 1; Doc. 269 at 2.)

The EEOC brought this suit in November 2010 alleging that Swissport had subjected the African fuelers to illegal and discriminatory treatment in the workplace. (Doc. 1 at 1.) The EEOC alleges that Christian Pelkey, a Swissport manager, was primarily responsible for the fuelers’ complaints of verbal abuse, which included calling the fuelers “monkey” and referring to their food as “monkey soup.” (Doc. 269 at 2-3.) The allegations also state that Pelkey ridiculed the fuelers’ national origins, yelled and cursed at them, and generally treated them more harshly than their non-African counterparts. (Id. at 3.) The EEOC alleges that other supervisors also subjected the African fuelers to racially discriminatory treatment, though not to the same extent as Pelkey. (Id.)

In April 2007, a group of African fuelers signed a petition to Jim Vescio, Swissport’s general manager, complaining about Pelkey’s racist behavior. (Doc. 266-71.) Afterward, eighteen of the fuelers who had signed the petition filed charges of discrimination with the EEOC, alleging harassment, disparate treatment, and retaliation. (See Doc. 235-28.) The EEOC investigated these allegations over the course of the next three years, requesting and receiving from Swissport over 3000 documents regarding Swissport’s employment practices. (Doc. 243 at 2.) Through obtaining these documents, the EEOC possessed the identities and contact information for all potential class members in this suit. (Id. at 8.) However, as discussed below, the EEOC did not disclose to Swissport the identities of all the claimants on whose behalf it sought relief, and in some cases did not even contact them, until after it brought suit. In June 2010, the EEOC issued letters of determination (“LODs”) for only the eighteen fuelers who had initially filed charges, finding reasonable cause to believe that they had been subjected to harassment, disparate treatment, and retaliation in the workplace. (Doc. 235-29.)

Swissport and the EEOC attempted to conciliate the unlawful practices beginning in June 2010. (Doc. 235-32 at 81.) They exchanged a series of letters in which the EEOC made monetary demands and Swissport responded with requests for more information with which to evaluate its liability. (Doc. 269 at 42.) In these letters, the EEOC requested damages on behalf of the eighteen charging parties, as well as nine unidentified class members for whom reasonable cause LODs were never issued. (Doc. 235-32 at 96.) The letters culminated in an in-person meeting conducted at the EEOC offices, (id.), but conciliation ultimately failed in September 2010, (Doc. 266-94 at 1). Thereafter, the EEOC filed suit against Swissport on behalf of the fuelers, alleging that since at least May 2005, Swissport has engaged in unlawful employment practices such as hostile work environment, failure to correct, failure to promote on the basis of race, retaliation, and constructive discharge. (Doc. 1 at ¶¶ 6-11.)

At the scheduling conference held in this conference a number of months after the EEOC filed the complaint, the EEOC identified seventeen charging parties, though it indicated that it was investigating twenty additional potential claimants. (Doc. 243 at 3.) The Court granted the EEOC sixty days from the date of the scheduling conference to add claimants in addition to the seventeen already identified. (Doc. 18 at ¶ 2; Doc. 243 at 4.) By the end of that deadline, on June 28, 2011, the EEOC had identified only nine additional claimants but stated that it was now aware of seventy-five potential claimants none of whom it identified. (Doc. 243 at 4.) It indicated, in a Motion for Extension of Time filed on June 28, that in May of 2011 it had sent letters to 188 fuelers for whom Swissport had provided contact information in 2008, and sought additional time to investigate and identify these additional parties. (Id.) The Court allowed the EEOC to continue its investigation on the condition that it would have to show good cause for its delay in adding any claimants who were not identified by the June 28 deadline. (Id. at 6-7.) Ultimately, the Court permitted the EEOC to add twelve claimants in addition to the seventeen initially identified and the nine identified by June 28. (Id. at 10-18.)

Swissport now contends that it is entitled to summary judgment on the following grounds: (1) the EEOC failed to conciliate in good faith, (2) the EEOC has failed to muster sufficient evidence to support the hostile work environment claims of twenty-four of the twenty-six claimants, (3) Olai-Chu’s failure to promote claim is outside the scope of the EEOC’s initial LOD, (4) the EEOC alleges retaliation and constructive discharge claims that were not pled in the Complaint, (5) two claimants are time-barred, (6) the EEOC has not met the standard for punitive damages, and (7) the EEOC does not have sufficient evidence to support the unlawful retaliation claims of eight of its claimants.

ANALYSIS

I. Motion to Strike

With its Reply (Doc. 275), Swissport attached three appendixes: an appendix of sham affidavits (Doc. 275-1), an appendix of evidentiary objections (Doc. 275-2), and an appendix of misinterpretations (Doc. 275-3). Swissport also filed a Supplemental Statement of Facts in Support of its Motion for Summary Judgment, (Doc. 276), along with five new exhibits, in addition to the Statement of Facts and exhibits originally filed with its Motion for Summary Judgment. The EEOC has moved to strike all three appendixes and the Supplemental Statement of Facts. (Doc. 279.)

The Local Rules do not provide for additional exhibits attached to replies in support of summary judgment or for a separate response to the non-moving party’s statement of facts. B2B CFO Partners, LLC v. Kaufman, 856 F.Supp.2d 1084, 1086-87 (D.Ariz.2012). “This is consistent with the moving party’s need to show no genuine issue of material facts exists and that there is no need for a trier of fact to weigh conflicting evidence____” Id. (citing EEOC v. TIN Inc., No. CV-06-1899-PHX-NVW, 2008 WL 2323913, at *1 (D.Ariz. June 2, 2008), rev’d on other grounds, 349 Fed.Appx. 190 (9th Cir. 2009)).

The moving party may set forth objections to the responsive statement of facts, and those objections “may be set forth in a separate reply statement of facts, but that filing may not introduce new facts or evidence.” Larson v. United Natural Foods W., Inc., No. CV-10-185-PHX-DGC, 2010 WL 5297220 at *2 (D.Ariz. Dec. 20, 2010) (emphasis in original).

In response to the EEOC’s Motion to Strike, Swissport argues that this Court has, in all previous cases, erroneously interpreted the Local Rules to prohibit external documents submitted with replies. (Doc. 282 at 2.) Swissport argues that the language of Local Rule 7.2(m)(2) supports its interpretation that external documents attached to replies are, in fact, permitted. That Rule, however, states only that an objection may be made to a statement of facts filed with a party’s responsive memorandum. The documents attached by Swissport to its Reply go beyond objections, setting forth new statements of fact and new exhibits to support those statements.

As discussed above, new evidence is flatly prohibited in a reply in support of summary judgment. The EEOC’s Motion to Strike is therefore granted on Swissport’s Supplemental Statement of Facts. Swiss-port’s appendix of evidentiary objections, however, is permitted by Local Rule 7.2(m)(2), and the EEOC’s Motion to Strike is denied as to that appendix. Conversely, Swissport’s appendix of misinterpretations appears to be an attack on the weight and credibility of the testimony of the claimants in this case. Swissport’s burden on summary judgment is to show that no material issue of fact exists, not to dispute credibility. The appendix of misinterpretations is therefore stricken. Finally, Swissport’s sham appendix will be construed as an objection permitted under Local Rule 7.2(m)(2), as it pertains to information allegedly previously undisclosed by the EEOC. The EEOC’s Motion to Strike, therefore, is granted as to the Supplemental Statement of Facts and the appendix of misinterpretations, but denied as to the appendix of evidentiary objections and sham appendix.

II. Swissport’s Evidentiary Objections

Attached to Swissport’s Reply are evidentiary objections to the EEOC’s Statement of Facts. Swissport organizes its objections into five categories: hearsay, irrelevant, vague and ambiguous, lack of foundation, and speculation. (Doc. 275-2.)

A court may only consider admissible evidence in ruling on a motion for summary judgment. Bailen v. City of Redmond, 466 F.3d 736, 745 (9th Cir.2006). However, objections to evidence as “irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.” Harris Technical Sales, Inc. v. Eagle Test Sys., Inc., 06-02471-PHX-RCB, 2008 WL 343260 at *3 (D.Ariz. Feb. 5, 2008) (citing Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D.Cal.2006)). Since a district court may not rely on irrelevant facts, legal conclusions, or speculations on a motion for summary judgment in the first place, Swissport’s evidentiary objections on those grounds are superfluous. See id. In addition, objections that evidence is vague or ambiguous go to the weight of the evidence, an issue that is properly before a jury. As such, it is improper to exclude such evidence at the summary judgment stage. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010).

Swissport objects to seventy of the EEOC’s fact statements on the ground of hearsay. (Doc. 275-2 at 1.) Of these, four are not supported by the evidence submitted by the EEOC, so they will not be considered in this Motion for Summary Judgment. Twenty-seven are statements made by a person other than the sworn declarant and fall into the category of hearsay. See Fed.R.Evid. 801(c). These twenty-seven statements also will not be considered. Five of the statements objected to include statements made by a person other than the declarant, but appear to be asserted for the purpose of establishing Swissport’s knowledge of Pelkey’s behavior rather than to establish the fact of Pelkey’s behavior itself. As such, the Court will consider these statements, but only for the limited purpose of determining Swissport’s knowledge of Pelkey’s behavior. The remaining thirty-four statements do not appear to be hearsay, and Swiss-port’s objections to them are denied.

Swissport also objects to 117 of the EEOC’s fact statements for lack of foundation. (Doc. 275-2 at 2.) Of these objections, twenty-two overlap with the legitimate hearsay objections discussed above and will not be considered in deciding this Motion. One of them, Statement 498, cites to evidence that does not exist in the record, and will not be considered.

The remainder of Swissport’s objections are to statements by the fuelers that generally state that Pelkey treated the African fuelers worse than he treated white or Hispanic fuelers. Swissport argues that these statements lack foundation as to personal knowledge because it is “impossible for an employee to make sweeping statements that others were never criticized or yelled at.” (Doc. 275 at 23.) However, the statements to which Swissport object appear to be made on the basis of each fueler’s personal observations. (Doc. 264 at ¶ 535 (statement by Dodor that he did not personally hear Pelkey say harassing things to white or Mexican fuelers); ¶ 548 (statement by Mil that he never saw Pelkey treat the white or Hispanic fuelers the way he treated the African fuelers); ¶ 555 (statement by Olai-Chu that he never heard Swissport managers insult white or Hispanic fuelers); ¶ 563 (statement by Imeah that he did not see Pelkey treat a white fueler in the same way Pelkey treated African fuelers); ¶ 565 (statement by Aculey that he personally noticed that Pelkey treated him and the other African fuelers differently than he treated the white and Hispanic fuelers); ¶ 811 (recounting an incident personally involving Aba); ¶ 821-22 (describing Yusufs reaction to Pelkey’s behavior during an incident at which Yusuf was present); ¶ 911 (statement by Torue that Pelkey treated him and other African fuelers worse after a complaint was submitted); ¶ 935 (statement by Davison that he was in the meeting where the leave policy had changed); ¶ 967 (statement by Korsi describing his experience in applying for a promotion); ¶ 968 (statement by Korsi explaining his reasons for resigning); ¶ 989-95 (describing Dodor’s personal experience after he was suspended)). As a whole, it is not implausible that the African fuelers may have observed Pelkey interacting with white and Hispanic fuelers and noticed differences in treatment between those fuelers and themselves.

Swissport also appears to argue that because the fuelers often worked in isolated conditions, they could not possibly know how Pelkey treated the other fuelers. The logical flaw in this argument is apparent — -just because the fuelers often worked alone does not mean that the fuelers were always alone; indeed, a large number of the allegations against Swiss-port involve situations where many fuelers were congregated in the break room. As such, the remainder of Swissport’s evidentiary objections on the basis of lack of foundation are not viable, and the Court will consider the ninety-four statements that are not hearsay and not missing from the record in deciding the Motion for Summary Judgment.

III. Sham Affidavit Doctrine and Motion for Leave to File Surreply

In its Reply, Swissport argues that the EEOC’s case should be dismissed because the EEOC submitted a series of declarations by the claimants which Swissport asserts are shams. (Doc. 275 at 10-12.) The EEOC seeks leave to file a surreply so that it may have a chance to address Swissport’s sham affidavit argument. (Doc. 280 at 2.)

Pursuant to the sham affidavit doctrine, a party cannot avoid summary judgment by creating “an issue of fact by an affidavit contradicting [its] prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). Swissport contends that seven of the twenty-eight declarations filed by the EEOC in support of its Response are shams and that the Ninth Circuit has approved of dismissal as a sanction for a party’s use of sham affidavits. (Doc. 275 at 11-12.) In fact, the only case cited by Swissport in support of its position involves the Ninth Circuit upholding dismissal of a case against a party that falsified depositions. See Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488 (9th Cir.1991). None of the Ninth Circuit cases reviewed by this Court addressed dismissal as a sanction for a sham.

In any event, it does not appear that the EEOC filed sham affidavits in this case. The sham affidavit rule is applied with caution because “it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). The party offering the affidavits “is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition.” Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir.2009) (internal quotations omitted). Nor is an affidavit a sham if it contains “minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence.” Id.

To justify invocation of the sham affidavit rule, “the inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous.” Id. For example, the Ninth Circuit upheld a district court striking sham affidavits where the deponent could not remember the answers to approximately 185 questions in his deposition, but suddenly recalled them “with perfect clarity” in his declaration submitted with his response to the motion for summary judgment. Yeager, 693 F.3d at 1080.

Here, Swissport attaches a Sham Appendix setting out in chart form the inconsistencies it believes demonstrate that the EEOC’s declarations are shams. However, the statements in the declarations do not contradict the declarants’ previous deposition testimony enough to justify applying the sham affidavit doctrine. Some statements refer to inconsistencies that are immaterial, such as whether other people were present when Pelkey made a particular statement. (Doc. 275-1 at 1.) Other statements are found in declarations by declarants who were never deposed, and thus have no prior testimony to contradict. (Id. at 2, 6, 7.) Still more statements have no apparent contradiction to deposition testimony; Swissport argues that these statements are contradictory because the incidents they describe were not mentioned in the declarants’ depositions. Though a glaring lack of memory can lead to a finding that an affidavit is a sham, as in Yeager, the omissions by the declarants here do not rise to the extreme level of forgetfulness exhibited by the declarant in that case. The declarants appeared merely to have struggled in their depositions to remember events that occurred many years ago. As such, the Court is reluctant to attribute to the declarants the malicious state of mind that undergirds the sham affidavit rule. The EEOC’s Complaint will not be dismissed on the ground that it submitted sham affidavits, and the twenty-eight declarations submitted by the EEOC will be considered in deciding the motion for summary judgment. In light of this, it is not necessary for the EEOC to file a surreply to address the sham affidavit argument, and the EEOC’s Motion for Leave to File Surreply is denied as moot.

IV. Motion for Summary Judgment

A. Legal Standard

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “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). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Because “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ... [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor” at the summary judgment stage. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir.1999) (“Issues of credibility, including questions of intent, should be left to the jury.”) (citations omitted).

Furthermore, the party opposing summary judgment “may not rest upon the mere allegations or denials of [the party’s] pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989); see also LRCiv. 1.10(Z)(1) (“Any party opposing a motion for summary judgment must ... set[ ] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.”). If the nonmoving party’s opposition fails to specifically cite to materials either in the court’s record or not in the record, the court is not required to either search the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409,1417-18 (9th Cir.1988).

B. Hostile Work Environment

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Title VII guarantees “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir.2004) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Thus, “a workplace in which racial hostility is pervasive constitutes a form of discrimination.” Id. (quoting Woods v. Graphic Commc’ns, 925 F.2d 1195, 1200 (9th Cir. 1991)).

To determine whether conduct was sufficiently severe or pervasive to violate Title VII, a court must consider “all the circumstances, 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.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509, reh’g denied, 533 U.S. 912, 121 S.Ct. 2264, 150 L.Ed.2d 248 (2001)). In addition, “[t]he working environment must both subjectively and objectively be perceived as abusive.” Id. However, the allegations of hostile conduct are to “be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” McGinest, 360 F.3d at 1115.

Swissport asserts that it is entitled to summary judgment for two reasons: (1) the conduct alleged by the EEOC was not racial in nature, and (2) the conduct was not severe enough to constitute a hostile work environment. Swissport also argues that the EEOC’s burden is to present evidence of each element of the hostile work environment claim for each individual claimant, rather than presenting evidence of a hostile work environment existing in the aggregate. (Doc. 239 at 4-6.) Swiss-port cites an array of cases from outside of the Ninth Circuit in support of this argument. (See id. at 5.) The EEOC does not expressly dispute this claim, but appears to present its evidence of hostile work environment in the aggregate, rather than establishing the elements for each individual claimant.

Neither the Ninth Circuit nor the District of Arizona has expressly spoken on the issue of the EEOC’s burden when prosecuting a hostile work environment claim on behalf of multiple claimants. However, courts in this district have analyzed the EEOC’s hostile work environment claims on a claimant-by-claimant basis in the past. See E.E.O.C. v. Love’s Travel Stops & Country Stores, Inc., 677 F.Supp.2d 1176, 1187 (D.Ariz.2009) (analyzing the two claimants individually); E.E.O.C. v. GLC Restaurants, Inc., No. CV 05-0618-PCT-DGC, 2006 WL 3052224 (D.Ariz. Oct. 26, 2006) (analyzing six claimants individually). The Court is of the view that such an approach is required. Thus, the Court will analyze the EEOC’s evidence to see whether it meets its burden to overcome summary judgment for each claimant individually.

Swissport’s first argument is that the alleged harassment consisted solely of comments that the claimants were eating monkey soup or statements that even a monkey could adequately do the jobs assigned to the claimants. (Doc. 239 at 7.) Swissport asserts that there is nothing inherently racial about the term “monkey,” and thus there is no discrimination on the basis of race as prohibited by Title VII. However, the two cases cited by Swissport do not support the conclusion that, as a matter of law, the term “monkey” used towards African individuals is racially neutral. Swissport’s cases refer only to the term in the context of the phrase “monkey-on-your-back.” See Gregory v. Widnall, 153 F.3d 1071, 1074-75 (9th Cir.1998); Ross v. Pfizer, Inc., 375 Fed.Appx. 450, 454 (6th Cir.2010). Conversely, other courts have found that term to hold racial connotations. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012); Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006); White v. BFI Waste Svcs., LLC, 375 F.3d 288, 298 (4th Cir.2004). Therefore, a material issue of fact exists as to whether the Swissport employees’ use of the word “monkey” in various contexts toward the claimants constituted racial discrimination.

Swissport further asserts that it is entitled to summary judgment as to twenty-four of the claimants on whose behalf the EEOC is seeking relief on a hostile work environment claim because they heard Pelkey make monkey comments too infrequently. In making this argument, Swiss-port only points to evidence in the record that thirteen claimants did not hear Pelkey’s comments frequently enough to raise a hostile work environment claim. (Doc. 239 at 9.) As such, Swissport has not met its burden on summary judgment as to the remaining eleven claimants for whom Swissport made no individual argument. Its Motion for Summary Judgment is denied as to those claimants.

In Vasquez v. County of Los Angeles, the Ninth Circuit found that two offensive remarks combined with allegations of unfair treatment were not severe or pervasive enough to create a hostile work environment. 349 F.3d at 644. In Sanchez v. City of Santa Ana, the Ninth Circuit upheld a district court’s decision that no hostile work environment existed where “the employer posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were Latino.” Id. at 643 (citing Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031, 1036 (9th Cir.1990)). Conversely, evidence that a plaintiff was subject to “several racial incidents ... each year” over a period of ten to fifteen years, “ranging in severity from being called racially derogatory names to experiencing a potentially life-threatening accident” is sufficient to create a material issue of fact on a motion for summary judgment. McGinest, 360 F.3d at 1118.

Swissport points to evidence in the record that two claimants, Ngon and Turay, did not hear Pelkey make any monkey comments at all. (Doc. 239 at 9.) It points to other evidence that ten of the claimants only heard Pelkey make monkey comments a maximum of three times. Being subject to an offensive term, even a racial slur, on three separate occasions does not, as a matter of law, reach the level of severity sufficient to create an issue of fact as to whether a hostile work environment existed. Though three racially denigrating comments may be degrading and disturbing to the listener, they do not reach the level of racial hostility exhibited in Sanchez, where a few instances of racially offensive slurs were compounded with disparate and illegal treatment. The facts of Sanchez, which were much more extreme than the behavior alleged by the EEOC in this case, were insufficient to create a hostile work environment as a matter of law. Swissport has therefore met its burden of demonstrating that there is no material issue of fact as to whether a hostile work environment existed for the claimants at their fueling jobs. The burden now falls on the EEOC to point to evidence in the record that the hostile conduct in the workplace was more severe and pervasive than as shown by the evidence presented by Swissport.

The EEOC alleges generally that the actions of Pelkey and the other Swissport supervisors created a pervasively hostile work environment. (Doc. 269 at 10-11.) The EEOC does not make individual arguments regarding the claimants, but instead points to over one hundred statements of fact that it claims create a genuine issue of material fact as to the issue of whether a hostile work environment existed. However, the many fact statements cited to by the EEOC do occasionally raise an issue of fact as to the individual claimants. See McGinest, 360 F.3d at 1103, 1115 (“Repeated derogatory or humiliating statements can constitute a hostile work environment.”) (citing Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.2000)) (internal quotations omitted).

Dada testified that he heard Pelkey make monkey soup comments to him or other African fuelers twenty times. (Doc. 266-12 at 35:14-25, 36:4-8.) Every time Pelkey spoke to him it was “in a very disrespectful, insulting way,” but Dada never saw Pelkey speak to white or Hispanic fuelers in this way. (Doc. 266^18 at ¶ 4.) Gualue declared that he interacted with Pelkey frequently, (Doc. 266-51 at ¶ 3), and that Pelkey treated him and the other African fuelers like they “weren’t even human,” {id. at ¶ 8). Furthermore, every time Pelkey saw Gualue and the other African fuelers in the break room or eating their meals, he would ridicule them and their food. {Id. at ¶ 4.) Marh declared that he and the other African fuelers were frequently subjected to Pelke/s screaming, yelling, and cursing, but that he never saw Pelkey treat white or Hispanic fuelers this way. (Doc. 266-58 at ¶¶ 4, 7.) Every time Marh interacted with Pelkey, Pelkey spoke in a “harassing brutal manner” and would refer to Marh and other African fuelers as “You Africans” or “monkey.” (Id. at ¶ 4.) There was also an incident in which Pelkey showed Marh a video of a monkey and compared the video to the African fuelers. (Id. at ¶ 5.) Aba declared that Pelkey almost always referred to the African fuelers as monkeys, and that he saw Pelkey almost every day. (Doc. 266-40 at ¶¶ 4-5.) He also declared that Pelkey made comments about the African fuelers’ food many times. (Id. at ¶ 8.) Turay declared that his supervisors regularly gave him and other African fuelers more difficult jobs while favorably treating white and Hispanic fuelers, and that his supervisors and co-workers frequently made fun of his food by calling it “monkey soup.” (Doc. 266-68 at ¶¶ 4-7.)

These incidents are sufficient in frequency and severity to create a material issue of genuine fact as to the hostile work environment claims of Dada, Gualue, Marh, Aba, and Turay. Evaluating these incidents from the perspective of an objective person belonging to the ethnic group of the claimants, a reasonable jury could find that the conduct to which these fuelers were subjected was degrading and abusive. Furthermore, the EEOC has presented evidence that the claimants subjectively found the conduct offensive. (See Docs. 266-48 at ¶ 5; 266-51 at ¶¶5, 10; 266-58 at ¶¶5, 7, 8; 266-40 at ¶¶5, 8; 266-68 at ¶ 8) (presenting declarations from the claimants stating that Pelkey’s statements made them feel less valuable than white or Hispanic fuelers, like they were less than human, or like they were slaves to Swissport). The EEOC has successfully pointed to evidence in the record creating a material issue of fact as to whether there was a hostile work environment toward the African claimants at Swissport. Swissport’s Motion for Summary Judgment is therefore denied as to Dada, Gualue, Marh, Aba, and Turay.

With regard to the remaining claimants, the EEOC asserts that “a supervisor’s harassment toward one employee can contribute to a hostile working environment for other employees, even if they are not directly exposed to all, or even most, of the harassment.” (Doc. 269 at 15.) It is true that “[offensive comments do not all need to be made directly to an employee for a work environment to be considered hostile.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir.2008). However, the EEOC does not cite to any cases in which a hostile work environment was found based only on offensive comments made to persons other than the claimant. In each case where the Ninth Circuit considered evidence of offensive comments made to others, the plaintiff was also personally subjected to racist comments or actions. Woods v. Graphic Commc’ns, 925 F.2d 1195, 1202 (9th Cir.1991) (plaintiff subjected to “several racial remarks and hostility” on top of “racial jokes, cartoons, comments, and other forms of hostility directed at almost every conceivable racial and ethnic group” at the workplace); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir.2008) (plaintiff subject to a colleague uttering a racial slur and moving as if to strike him, as well as another coworker repeatedly requesting that he take the trash out because she thought it was “funny,” along with evidence that the hiring committee screened an applicant out on the basis of race, though plaintiff was not present during those remarks).

The EEOC submits evidence that the remaining claimants heard from other fuelers that Pelkey made monkey comments toward those fuelers. (Docs. 266-60 at ¶ 5 (Ngon Deck); 266-47 at ¶ 7 (Crispo Deck); 266-53 at ¶ 7 (Korsi Deck); 266-66 at ¶5 (Sillah Deck); 266-43 at ¶4, 8 (Aguek Deck); 266-57 at ¶ 8 (Majak Decl.).) The fact that this evidence can be considered in determining whether a hostile work environment exists does not mean that it is sufficient to raise a genuine issue of material fact. The individual claimants who heard about Pelkey’s monkey comments from other fuelers were themselves subjected to little or no other racial hostility. {See, e.g., Docs. 266-60 at ¶ 4 (Ngon never heard Pelkey make racial comments to him personally); 266-53 at ¶ 5 (Korsi was subjected to monkey soup comments in the break room “a few times”); 266-66 at ¶ 4 (Sillah was subjected to a monkey soup comment once)). Even in combination with the reports that they heard from other fuelers about racially discriminatory treatment, the evidence cannot support a hostile work environment claim for these claimants.

In sum, Swissport’s Motion for Summary Judgment is denied as to claimants Gindallang, Kual, Maduok, Mil, Obur, Peter, Imeah, Basha, Aruo, Lado, Aeuley, Olai-Chu, Dada, Gualue, Marh, Aba, and Turay. However, its Motion is granted as to claimants Ngon, Crispo, Abaker, Korsi, Sillah, Aguek, and Majak.

C. Improper Expansion of Claims

While the EEOC is empowered by Congress to bring suit on behalf of private parties, it is “required by law to refrain from commencing a civil action until it has discharged its administrative duties.” Occidental Life Ins. Co. of Cal. v. E.E.O.C., 432 U.S. 355, 369, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). There are certain steps that must be taken before the EEOC may pursue litigation. See 42 U.S.C. § 2000e-5(b). These include: (1) the private party’s filing of a charge within, at most, 300 days of the Title VII violation, (2) the EEOC’s service of that charge on the employer, (3) the EEOC’s investigation into the charge and determination of whether reasonable cause exists to believe that the charge is true (usually by issuing a LOD), and (4) an attempt to conciliate the violation between the employee and employer. Id.; Occidental Life Ins., 432 U.S. at 359, 97 S.Ct. 2447.

The Ninth Circuit has stated that a district court’s subject matter jurisdiction over an EEOC action extends only to claims that either “fell within the scope of the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1100 (9th Cir.2002) (emphasis in original) (internal citations omitted). However, the language of the EEOC charge out of which the claims must arise are construed “with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.” Id. Though claims of new discrimination can arise during reasonable investigation of the filed charge, the new claim must “be the subject of an EEOC ‘reasonable cause’ determination to be followed by an EEOC offer of conciliation.” E.E.O.C. v. Hearst Corp., Seattle Post-Intelligencer Div., 553 F.2d 579, 580 (9th Cir.1976).

Swissport contends that it is entitled to summary judgment on the retaliation claims of Aguek and Obur, as well as Olai-Chu’s failure to promote claim and Korsi’s constructive discharge claim, because the EEOC failed to give Swissport reasonable notice of these claims. Swissport extensively cites a recent Eighth Circuit case, E.E.O.C. v. CRST Van Expedited, Inc., in support of its claim. 679 F.3d 657 (8th Cir.2012). In CRST, the Eighth Circuit affirmed the district court’s dismissal of the EEOC’s claims as to sixty-seven claimants because: (1) the EEOC did not investigate the specific allegations of those claimants until after the Complaint was filed, (2) it did not identify those sixty-seven claimants as members of its “class” until after the Complaint was filed, (3) it did not make a reasonable-cause determination as to the specific allegations of those claimants until after the Complaint was filed, and (4) the EEOC did not attempt to conciliate the claimants’ allegations prior to filing the Complaint. Id. at 673-74. CRST thus stands, at least in part, for the proposition that the EEOC cannot pursue claims of which it failed to give the defendant notice during its investigation.

In response, the EEOC spends eight pages of its brief arguing that its pre-litigation actions are not subject to judicial review. It may be true that the EEOC’s investigation and conciliation efforts are committed to EEOC discretion by law, or that neither the reasonable cause determination nor the conciliation results constitute “final agency action,” but this argument misses the mark. Swiss-port seeks to have this Court review not the correctness of the EEOC’s determinations but rather whether it discharged its administrative duties that are a prerequisite to seeking judicial relief. Whether the EEOC fulfilled its statutory prerequisites to suit is a proper issue for the Court to decide. E.E.O.C. v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982).

Swissport contends that it is entitled to summary judgment on Aguek’s claim of retaliatory failure to promote because, although Aguek’s LOD stated that the EEOC had reasonable cause to find that Swissport retaliated against Aguek, it failed to state the factual basis for the finding. (Doc. 239 at 15.) However, the LOD itself states that Swissport retaliated against Aguek for complaining about the discriminatory treatment to which he and the other African fuelers were subjected. (Doc. 235-29 at 25.) Swissport takes issue with the fact that the EEOC did not state with specificity what the retaliatory action was. However, Swissport cites no case stating that such specificity is required in order for the LOD to constitute “notice,” and the Court’s review of the case law reveals no such requirement. Indeed, this Court and others have held that the EEOC’s LODs need not reach the level of specificity demanded by the employer. See E.E.O.C. v. Collegeville/Imagineering, No. CV-05-3033-PHX-DGC, 2007 WL 2051448 at *9 (D.Ariz. July 16, 2007); E.E.O.C. v. GMRI, Inc., No. 1:08-CV02214, 2009 WL 2151788 at *7 (N.D.Ohio July 16, 2009); E.E.O.C. v. Thomas Dodge Corp. of N.Y., 524 F.Supp.2d 227, 237-38 (E.D.N.Y.2007). As such, Swissport’s Motion for Summary Judgment as to Aguek’s claim of retaliation is denied.

Swissport also contends that it is entitled to summary judgment on Obur’s claim of retaliatory termination because it was never disclosed in the LOD. (Doc. 239 at 15.) Swissport’s assertions on this ground are incorrect. In fact, both Obur’s initial charge and the EEOC’s subsequent LOD for Obur expressly allege and assert retaliatory termination. (Doc. 235-28 at 15; 235-29 at 47.) Swissport has thus failed to meet its initial burden and its Motion for Summary Judgment as to Obur’s claim of retaliation is denied. Swissport further asserts that the retaliation claims of seven other claimants are fatally flawed for the same reason as Obur’s. As discussed above, Obur’s retaliation claim is not flawed in the manner suggested by Swiss-port. In addition, Swissport cites to no portion of the record in making this argument against these seven claimants. Moreover, the Court’s independent review of the record shows that, for every single one of these claimants, a claim of retaliation was asserted either in the initial charge or the LOD. (Doc. 235-28 at 12; id. at 17; Doc. 235-29 at 41; id. at 21; id. at 37; id. at 43; id. at 45; id. at 51; id. at 55.) Swissport’s Motion for Summary Judgment as to these retaliation claims is therefore denied.

Swissport further contends that it is entitled to summary judgment on Olai-Chu’s claim of racially motivated failure to promote claim. It points to the absence of any suggestion of a failure to promote claim in either Olai-Chu’s initial charge or the LOD subsequently issued by the EEOC; indeed, Olai-Chu’s LOD asserted only a finding of reasonable cause for harassment and disparate treatment. (Doc. 235-29 at 49.) In response, the EEOC argues that the disparate treatment reasonable cause finding encompasses the failure to promote claim. (Doc. 269 at 38.) It also contends that, in the process of its investigation, it requested information from Swissport pertaining to promotions, and that this was sufficient to put Swissport on notice of the failure to promote claim. (Id.) The EEOC points to a letter in which the EEOC requested promotion information from February 13, 2008. (Doc. 266-97 at 1.) There is sufficient evidence to create a material issue of fact as to whether Olai-Chu’s claim of failure to promote grew out of the EEOC’s reasonable investigation of his initial charge of discrimination. Moreover, while Olai-Chu’s LOD does not expressly state a finding for “failure to promote,” it does expressly state a finding for disparate treatment. “Failure to promote is a common manifestation of disparate treatment.” McGinest, 360 F.3d at 1122. Swissport’s Motion for Summary Judgment on this ground therefore is denied.

Swissport also contends that it is entitled to summary judgment on Korsi’s constructive discharge claim. Swissport points to Korsi’s initial charge and LOD, neither of which mentions a constructive discharge claim. (Doc. 235-28 at 10; Doc. 236-29 at 37.) Therefore, the burden shifts to the EEOC to point to some evidence in the record that it had put Swissport on notice of Korsi’s constructive discharge claim. The EEOC does not address Korsi’s claim at all in its Response. Swissport’s Motion for Summary Judgment as to Korsi’s constructive discharge claim is therefore granted.

Swissport finally contends that it is entitled to summary judgment on all retaliation claims besides Olai-Chu’s failure to promote claim and Andoh’s constructive discharge claim. (Doc. 239 at 16.) Swiss-port states that because these are the only two retaliation claims pled in the Complaint, the EEOC is barred from bringing any other claims. Again, Swissport’s assertions on this ground are incorrect. The Complaint alleges that Swissport retaliated against the Claimants and includes a non-exhaustive list of five actions taken by Swissport that allegedly constituted illegal retaliation. (Doc. 1 at ¶ 10.) Swissport’s Motion for Summary Judgment is denied on this ground.

D. Olai-Chu’s Failure to Promote Claim

Swissport asserts that it is entitled to summary judgment on Olai-Chu’s failure to promote claim because it offered Olai-Chu a promotion in 2008 which Olai-Chu turned down. (Doc. 239 at 23.) However, the EEOC appears to base its failure to promote claim on a different incident that occurred in 2007. (Doc. 269 at 24.)

Because failure to promote claims are disparate treatment claims, they are governed by the burden-shifting framework established in McDonnell Douglas Corp. v. Green. Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under McDonnell Douglas, a plaintiff “can make out a prima facie case of discrimination by showing that (1) he belongs to a statutorily protected class, (2) he applied for and was qualified for an available position, (3) he was rejected despite his qualifications, and (4) after the rejection, the position remained available and the employer continued to review applicants possessing comparable qualifications.” Id. On summary judgment, the plaintiff need only submit a “minimal” amount of proof to establish the prima facie case. Id.

The establishment of the prima facie case “creates a rebuttable presumption that the employer unlawfully discriminated against the employee.” Id. (internal quotations omitted). The burden then shifts to “the employer to articulate a legitimate, nondiscriminatory reason for the plaintiffs rejection.” Id. (internal quotations omitted). The employer must “clearly set forth ... the reasons for the plaintiffs rejection.”

The parties agree that Olai-Chu belongs to a racial minority (specifically, that he is Black and Nigerian), and that he is therefore a member of a protected class. (See Doc. 266-63 at ¶ 3.) The EEOC sets forth evidence that Olai-Chu applied for a supervisor position in 2007, (Doc. 266-30 at 46, ¶¶ 3-5), that he received positive performance reviews prior to applying, (Doc. 266-92), but that he was not selected for the position, (Doc. 266-30 at 48, ¶¶ 5-7.). It also points to evidence that, during Olai-Chu’s interview for the supervisor position, Pelkey stated that Africans were not entitled to pay or promotions, and that they were not educated. (Doc. 266-30 at 67, ¶¶ 15-22). In addition, it cites to evidence that after the interview, Pelkey told Olai-Chu that Africans were not made for the supervisor positions because they were slaves. (Doc. 266-30 at 69, ¶ 17-70, ¶ 8.) It further points to evidence that after Olai-Chu’s interview, a white fueler was selected for the supervisor position. (Doc. 266-30 at 48, ¶¶ 14-21.) This evidence is sufficient to establish a prima facie case under the McDonnell Douglas framework. The burden therefore shifts to Swissport to state a legitimate and nondiscriminatory reason for its failure to promote Olai-Chu.

Swissport does not argue that it had a nondiscriminatory reason for failing to promote Olai-Chu. Instead, it asserts that the EEOC’s failure to promote claim arising from the 2007 incident was never made a subject for conciliation, and thus that the EEOC may not now bring a claim based on that incident. (Doc. 275 at 18.) This assertion is based on the fact that Olai-Chu’s LOD only mentions “disparate treatment” and makes no reference to a failure to promote claim. (Doc. 235 at ¶ 174.) However, as discussed above, failure to promote is a type of disparate treatment. See Section IV.B, supra. Swiss-port points to no other parts of the record that show that the disparate treatment claim was not conciliated.

Swissport does not assert any legitimate and nondiscriminatory reason for its failure to promote Olai-Chu in 2007, and has thus failed to overcome the EEOC’s establishment of a prima facie case for disparate treatment. The Motion for Summary Judgment on Olai-Chu’s failure to promote claim is denied.

E. Retaliation Claims

Swissport contends that it is entitled to summary judgment on all the individual claimants’ retaliation claims because it has nondiscriminatory reasons for all of its actions and the EEOC is unable to point to sufficient evidence of pretext to defeat its Motion for Summary Judgment. (Doc. 239 at 23-24.)

Retaliation claims are evaluated using the same McDonnell Douglas burden-shifting framework discussed above. “To make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action.” Ray, 217 F.3d at 1240. Once the plaintiff establishes a prima facie retaliation claim, “the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its decision.” Id. “If the defendant articulates such a reason, the plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive.” Id.

An adverse employment action is defined as “any adverse treatment that is based on a retaliatory motive and reasonably likely to deter the charging party or others from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). The action must be “tangible” and represent a “significant change in employment status.” Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 960 (9th Cir.2004). It includes “lateral transfers, unfavorable job references, and changes in work schedules.” Ray, 217 F.3d at 1243. However, actionable retaliation does not include trivial employment actions that would not deter employees from complaining about Title VII violations. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000)

Though Swissport asserts that it is entitled to summary judgment on all the retaliation claims being brought by the EEOC, it only makes arguments as to six of the claimants — Torue, Aba, Korsi, Andoh, Ngon, and Aguek. Thus, Swissport’s Motion for Summary Judgment is denied for the remaining claimants asserting retaliation, because it failed to meet its initial burden of showing no material issue of fact regarding their claims.

The parties do not dispute that the claimants asserting retaliation claims engaged in protected activity when they complained to Swissport’s general manager about workplace discrimination and when they filed charges with the EEOC. (Doc. 269 at 17.) Instead, they disagree about whether each claimant was subjected to an adverse employment action and whether a causal link existed between the protected activity and the alleged adverse action.

1. Godwin Torue

Swissport argues that it is entitled to summary judgment on Godwin Torue’s retaliation claim because Torue suffered no adverse employment action. (Doc. 239 at 24-25.) Swissport points to the fact that, while Torue felt that he was wrongfully denied promotions, (Doc. 235-37 at 45, ¶¶ 13-19), he never actually applied for a promotion, (id. at 150, 10-11). In response, the EEOC does not present any evidence that Swissport failed to promote Torue in retaliation for his protected activity, but points to other evidence of retaliation that took place after Torue and the other fuelers complained. It presents evidence that Pelkey more frequently called Torue into work on his days off, that he checked Torue’s paperwork more carefully, and that he behaved more angrily towards Torue after the complaint. (Doc. 266-67 at ¶ 12.)

This Court has held that neither more careful scrutiny of a claimant’s work nor hostile body language constitutes an adverse employment action capable of supporting a claim of retaliation. See Anderson v. Ariz., No. CV06-00817-PHXNVW, 2007 WL 1461623 at *8 (D.Ariz. May 16, 2007) (finding no adverse employment action where supervisor began nitpicking employee’s work after she engaged in protected activity); Morton v. ALS Services USA Corp., No. CV 11-00946-PHX-DGC, 2012 WL 3578857 at *4 (DAriz. Aug. 20, 2012) (finding no adverse employment action where co-worker physically intimidated employee by “getting into her physical space”). Here, the EEOC’s allegations of the adverse employment actions are not more severe than the allegations in Anderson and Morton. Even if taken as true, the allegations of Pelkey’s more careful scrutiny of Torue’s work and his angrier body language do not constitute a “significant change in employment status.”

However, the EEOC also sets forth evidence that after Torue and the other fuelers submitted the complaint letter, Pelkey would more frequently call To-rue on his days off and tell him that he had to come in to work. (Doc. 266-67 at ¶ 12.) If Pelkey made these calls with sufficient frequency, and if Torue actually felt compelled to work on his days off, a jury could find that Pelkey’s actions were a “change in work schedule” that constituted an adverse employment action. The EEOC has raised a material issue of genuine fact as to whether Pelkey retaliated against Torue by calling him to come into work on his days off. As such, Swissport’s Motion for Summary Judgment on Torue’s retaliation claim is denied as it pertains to the allegation that Torue was more frequently called in to work on his days off.

2. Michael Aba

Swissport contends that it is entitled to summary judgment on Michael Aba’s claim because Aba never suffered any adverse employment action. It is undisputed that Otis Williams, the new general manager, told Aba that he was investigating Aba for allegedly encouraging other employees to file false workers’ compensation claims, but that Aba was never placed on leave or otherwise disciplined. (Docs. 239 at 25; 269 at 18.) The parties agree that the investigation ended a week later with Williams telling Aba “to forget about the situation.” (Doc. 269 at 18.) Swiss-port contends that this is insufficient to constitute adverse employment action.

The EEOC, in response, argues that the adverse employment action was not the investigation but rather the fact that Pelkey falsely accused Aba to drum up an investigation against him. (Id. at 18-19.) However, being the subject of an investigation is not a “significant change in employment status.” An investigation that resulted in a finding that the employee committed no wrongdoing would not deter that employee from complaining about Title VII violations. The Ninth Circuit has held that a supervisor’s initiation of an administrative inquiry is insufficient to support a finding of the requisite causal link without evidence showing that the supervisor’s bias tainted the inquiry and affected the subsequent adverse employment decision. Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir.2007). Thus, only the subsequent adverse employment decision constitutes action sufficient to support a retaliation claim; the inquiry itself does not suffice. As such, because the EEOC’s evidence does not create a material issue of fact that Aba suffered an adverse employment action, Swissport’s Motion for Summary Judgment is granted.

3. Abdelmoneim Korsi

Swissport seeks summary judgment on Abdelmoneim Korsi’s claims of retaliation, asserting that Korsi suffered no adverse employment action within a time frame sufficiently close to the protected activity to meet the requisite causal link.

The EEOC puts forth three instances of alleged adverse employment action by Swissport: (1) reducing Korsi’s overtime hours, (2) denying Korsi a promotion, and (3) constructively discharging Korsi. (Doc. 269 at 19-20.)

A reduction in hours constitutes an adverse employment action. Ray, 217 F.3d at 1243 (holding that a change in schedule constitutes an adverse employment action). Swissport points to evidence in the record that Korsi worked approximately 275 overtime hours in the six months prior to filing the complaint of discrimination, but worked 626 overtime hours in the six months after the filing. (Doc. 235-3 at ¶¶ 11-12.) In opposition, the EEOC presents evidence that in the six months after Korsi filed his charge of discrimination, his overtime hours were reduced from sixty hours per pay period to forty hours per period. (Doc. 266-53 at ¶ 11.) A material issue of fact exists as to whether Korsi’s overtime hours were reduced in the six months following the filing of the complaint. As such, Swissport’s Motion for Summary Judgment is denied.

Failing to promote an employee also constitutes an adverse employment action. Brooks, 229 F.3d at 928 (holding that “refusal to consider for promotion” is an adverse employment action). However, to support the requisite causal link, the adverse employment action must occur “fairly soon after the employee’s protected expression.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (internal quotations omitted). Here, the EEOC does not dispute that the denial of Korsi’s promotion occurred ten months after his filing of his charge of discrimination. (Doc. 239 at 27.) A ten-month lapse between the protected activity and the adverse employment action is too long to support the requisite causal link. Id. (citing with approval cases that found lapses of eight months to be too long to support the requisite causal link). Swissport’s Motion for Summary Judgment is therefore granted on Korsi’s retaliation claim based on the failure to promote.

Finally, the EEOC points to Korsi’s constructive discharge as evidence of an adverse employment action. A constructive discharge occurs when “working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Brooks, 229 F.3d at 930. The EEOC bases Korsi’s constructive discharge claim on the above-listed reduction in overtime hours and Swissport’s failure to promote Korsi. A reduction in overtime hours does not, as a matter of law, constitute an “extraordinary and egregious” circumstance that would compel a reasonable employee to leave a job. Nor is a denial of a promotion a sufficiently extreme condition to support a