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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Micol Petty,

Plaintiff,

v. 

Circle K Stores Incorporated,

Defendant.

No. CV-18-00567-PHX-DWL

ORDER 

INTRODUCTION

Plaintiff Micol Petty is a former employee of Defendant Circle K Stores Inc. 

(“Circle K”). On September 8, 2015, Petty’s second-level supervisor, Bill Allsworth, made 

aggressive sexual overtures toward her while they were inside a walk-in cooler in a Circle 

K store. Petty rebuffed the overtures and reported the incident to a different supervisor

soon after it was over. Circle K responded by immediately conducting an internal 

investigation and then firing Allsworth. Petty kept working for Circle K for nine months 

after Allsworth’s termination, then resigned. In this lawsuit, Petty asserts a Title VII claim 

for sex discrimination, as well as various state-law claims. 

Now pending before the Court is Circle K’s motion for partial summary judgment. 

For the following reasons, that motion will be granted in part and denied in part.

...

...

...
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BACKGROUND

I. Factual Background

Unless otherwise indicated, the following facts are not in dispute:

A. Petty’s Hiring And Company Policies 

Petty began working for Circle K in February 2015. (Doc. 88-2 at 69.) In May 

2015, she was promoted to store assistant. (Id. at 21, 71.) In that role, her responsibilities 

included working the cash register, balancing the store’s books, taking deposits to the bank, 

and auditing the store’s inventory. (Doc. 89-2 at 19, 22.) Petty’s immediate supervisor 

was Kim Wyant, the store manager. (Doc. 88-2 at 17, Doc. 88-3 at 8.) Wyant reported to 

Allsworth, the market manager, who stopped by Petty’s store multiple times each week. 

(Doc. 88-2 at 75; Doc. 89-2 at 36.)

At all relevant times, Circle K had policies in place that prohibited sexual 

harassment and discrimination. (Doc. 88-2 at 9-11.) The company also had procedures in 

place for responding to and investigating complaints of sexual harassment, and the 

consequences for violating the policies included termination. (Id.)

B. The September 8, 2015 Incident

In the days before the incident in the cooler, Petty and Allsworth exchanged a series 

of text messages. (Doc. 88-3 at 86.) Petty sent Allsworth three photographs of herself in 

a Circle K uniform for use in a company newsletter. (Id.) Allsworth responded, “That first 

one is sweet, very flirty. Hope that doesn’t offend you,” to which Petty responded, “No it 

does not :) haha but thank you.. blush blush.” (Id.) Allsworth later texted Petty, “Feel free 

to send me another one without the uniform,” and Petty later responded, upon further 

urging, with additional photographs of herself wearing a tank top. (Id.) Additionally, 

Allsworth asked Petty, “This is probably way inappropriate...do you date older guys,” and 

Petty responded, “No your [sic] totally fine (: no worries, & yes I do.” (Id.)

On September 8, 2015, at around 3:00 pm, Allsworth visited Petty’s store. (Doc. 

88-2 at 23; Doc. 88-3 at 8.) At Allsworth’s direction, the two of them entered the store’s 

walk-in cooler. (Id.)
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Petty contends—and her account of the incident is all that matters for summary 

judgment purposes, even though it is disputed by Allsworth—that as soon as the door 

closed, Allsworth told her, “I would love to see you bent over my knees.” (Doc. 88-2 at 

26.) He professed his love for her, told her she didn’t know how long he’d been watching 

her, and said he would “trade [his] wife for [her] any day.” (Id. at 26-27). He tried to kiss 

her, and when she tried to leave, he closed the door, pushed her in the chest, grabbed her 

by the arm and waist, and prevented her from leaving. (Doc. 88-2 at 26-27; Doc. 88-3 at 

58.) Petty yelled for help and kept telling him she wanted to leave. Eventually, the cashier 

on duty buzzed to indicate she needed help at the register, at which point Allsworth allowed 

Petty to exit. (Doc. 88-2 at 27-28.) The entire encounter lasted “[n]o more than five 

minutes.” (Id. at 26.)

C. Circle K’s Response To The September 8, 2015 Incident 

The immediate aftermath of this incident is not in dispute. Shortly after Allsworth

left the store, Petty, in tears, called Wyant to report the incident. (Doc. 88-2 at 28.) Wyant 

called Joel Konicke, another market manager, who called Allsworth’s supervisor, Kristin 

Krusemark. (Doc. 88-2 at 77-78; Doc. 88-3 at 31.) Later that day, Krusemark told 

Allsworth not to have any contact with store employees. (Doc. 88-3 at 14-15.) 

Allsworth had texted Petty that afternoon after leaving the store, stating “I think 

your [sic] a beautiful woman I would like to get to know personally and intimately. I think 

professionally you’re a very good [Store Assistant], with potential to become a manager 

within a year or so.... but that has nothing to do with the former.” (Id. at 64.) Allsworth 

followed up by saying, “I do not see you as a piece of ‘ass’ to use and push aside.” (Id. at 

65.) This was the last contact between Allsworth and Petty. (Id. at 16.) 

On September 9, 2015, Circle K placed Allsworth on unpaid administrative leave 

pending investigation of the allegations. (Doc. 88-3 at 17-18.) Allsworth was told not to 

have any contact with Circle K employees. (Id. at 18.)

On or around September 16, 2015, Circle K terminated Allsworth. (Doc. 88-3 at 

18, 94.) 
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On September 17, 2015, Petty filed a charge with the Equal Employment 

Opportunity Commission (“EEOC”). (Doc. 89-4 at 2-4.) 

On September 18, 2015, Baldev Bhogal, a Circle K human resources manager, 

informed Petty via letter that Circle K’s investigation had concluded. (Doc. 88-3 at 92.) 

The letter stated in pertinent part “[t]hough we [Circle K] would not confirm all of your 

allegations, it does appear that inappropriate behavior and violations of company policy 

took place.” (Id.) The letter further stated that, “[a]lthough privacy considerations limited 

our ability to share confidential information with you about other employees, I can tell you 

that appropriate action has been taken to ensure that such conduct does not repeat itself.” 

(Id.) 

D. Alleged Retaliation By Circle K

Petty contends that, in the months following the incident and her filing of the EEOC 

charge, Circle K retaliated against her. Specifically, Petty contends she was put on the 

graveyard shift, saw her hours reduced, and was removed from consideration for 

promotion. (Doc. 89 at 93-94, 147.) Wyant, however, testified during her deposition that 

Petty asked for the graveyard shift and asked to postpone entry into the manager-in-training 

program. (Doc. 92-1 at 3-4.)

On June 8, 2016, Petty informed Wyant (via a Facebook message) that she would 

not be coming back to work. (Doc. 88-3 at 96.) 

E. Petty’s Post-Circle K Employment

Following her departure from Circle K, Petty did not work or apply for another job 

for six to eight months.1 (Doc. 89-2 at 113.) Petty testified that she was not mentally ready 

to work because of the incident in the cooler and that this incident caused problems with 

her marriage. (Id.) 

1 Petty’s response to Circle K’s motion states that “evidence is properly before the 

Court that Plaintiff sought employment, working part-time cleaning houses.” However, 

Petty’s response fails to identify where the Court might go about locating such evidence. 

See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials . . . .”); S. 

Gensler, 2 Federal Rules of Civil Procedure, Rules and Commentary, Rule 56, at 160 

(2018) (“The court has no duty to search the record to identify the facts that might . . . 

defeat summary judgment.”).
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On November 19, 2016, Petty was hired at Wal-Mart. (Doc. 88-3 at 105.) On 

December 18, 2016, Petty was terminated by Wal-Mart for job abandonment. (Id.) 

On April 14, 2017, Petty was hired by U-Haul. (Doc. 88-3 at 109.) On June 2, 

2017, Petty was terminated for failing to show up. (Id. at 110.) 

On November 22, 2017, the EEOC issued Petty a Right to Sue letter. (Doc. 1 at 4.)

II. Procedural Background

On February 20, 2018, Petty initiated this lawsuit by filing a complaint against 

Circle K, Allsworth, and Alimentation Couche-Tard, d/b/a Couche-Tard Brands and 

Financing, LLC. (Doc. 1.)2 The complaint asserts three causes of action: (1) a Title VII 

claim for sexual harassment (id. ¶¶ 20-41); (2) a state-law claim for negligence (id. ¶¶ 42-

47); and (3) a state-law claim for “intentional and/or negligent infliction of emotional 

distress” (id. ¶¶ 48-51). 

On June 21, 2018, Allsworth filed a motion to dismiss. (Doc. 23.) 

On June 22, 2018, Circle K answered Petty’s complaint. (Doc. 24.) The same day, 

Circle K filed a motion to dismiss Couche-Tard Brands and Financing, LLC. (Doc. 25.)

On July 31, 2018, Petty filed a notice dismissing Alimentation Couche-Tard. (Doc. 

37.)

On August 1, 2018, the Court dismissed Alimentation Couche-Tard. (Doc. 39.) 

The next day, the Court dismissed Allsworth. (Doc. 40.) And the day after that, the Court 

dismissed Couche-Tard Brands and Financing, LLC. (Doc. 41.)

On October 31, 2018, the case was reassigned from the originally-assigned judge to 

the undersigned judge. (Doc. 61.)

On June 3, 2019, Circle K filed a motion for partial summary judgment. (Doc. 88.)

On July 3, 2019, Petty filed a response to Circle K’s motion. (Doc. 89.)

On July 25, 2019, Circle K filed a reply. (Doc. 92.)

On January 28, 2020, the Court issued a tentative order. (Doc. 94.)

2 The Court later ordered the Clerk to amend the docket to reflect that Alimentation 

Couche-Tard and Couche-Tard Brands and Financing, LLC are different defendants. (Doc. 

39.)
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On February 6, 2020, the Court issued an order authorizing the parties to file 

supplemental briefs addressing whether Petty may assert a claim for front or back pay if 

she failed to exhaust her constructive discharge claim. (Doc. 98.)

On February 20, 2020, the parties filed their supplemental briefs. (Docs. 99, 100.)

On March 11, 2020, the Court heard oral argument. 

DISCUSSION

I. Legal Standard

A party moving for summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, 

if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 

production, the moving party must either produce evidence negating an essential element 

of the nonmoving party's claim or defense or show that the nonmoving party does not have 

enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 

[the] moving party carries its burden of production, the nonmoving party must produce 

evidence to support its claim or defense.” Id. at 1103.

“Summary judgment is appropriate when ‘there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.’” Rookaird v. BNSF 

Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “A genuine 

dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party 

for a jury to return a verdict for that party.’” United States v. JP Morgan Chase Bank 

Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $ 446,377.36, 835 F.3d 

1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986)). The court “must view the evidence in the light most favorable to the 

nonmoving party and draw all reasonable inference in the nonmoving party's favor.” 

Rookaird, 908 F.3d at 459. Summary judgment is also appropriate against a party who 
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“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.” Celotex, 477 

U.S. at 322.

II. Scope of the Pending Motion

Circle K has filed a motion for partial summary judgment. Specifically, Circle K is 

seeking summary judgment on (1) Count One, the Title VII claim premised on allegations 

of a hostile work environment, quid pro quo harassment, and retaliation (but Circle K is 

only seeking summary judgment on the “retaliation claim to the extent it arises from 

[Petty’s] resignation”), (2) the portion of Count Three asserting a claim for intentional 

infliction of emotional distress (“IIED”), and (3) any claim for front and/or back pay arising 

from the Title VII claim. (Docs. 88, 92.) Thus, Circle K is not seeking summary judgment 

on (1) the retaliation claim underlying Count One, to the extent it is based on actions taken 

by Circle K before Petty’s departure, (2) Count Two, the negligence claim, and (3) the 

portion of Count Three asserting a claim for negligent infliction of emotional distress. 

III. Title VII Claim

Although Count One is not a model of clarity, it seems to be asserting a Title VII 

claim for sex discrimination premised on three different theories: (1) hostile work 

environment, (2) quid pro quo harassment, and (3) retaliation. Each theory is addressed 

below.

A. 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.’” Meritor Sav. Bank, FSB v. 

Vinson, 477 U.S. 57, 63 (1986) (quoting 42 U.S.C. § 2000e-2(a)(1)). One recognized form 

of sex discrimination under Title VII is a claim based on “the creation of a hostile work 

environment that ‘is sufficiently severe or pervasive to alter the conditions of the victim’s 

employment.’” Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161 (9th Cir. 2017)
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(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “A hostile work environment 

occurs when an employee 1) was subjected to verbal or physical conduct of a sexual nature, 

2) this conduct was unwelcome, and 3) this conduct was sufficiently severe or pervasive to 

alter the conditions of the victim’s employment and create an abusive working 

environment.” Fuller, 865 F.3d at 1161 (internal quotation omitted).

Circle K moves for summary judgment on Petty’s hostile work environment claim 

for three reasons: (1) the sexual conduct to which Petty was subjected was not 

“unwelcome,” (2) the conduct was not “severe or pervasive,” and (3) Circle K is entitled 

to immunity under the Ellerth/Faragher doctrine.

1. “Unwelcome”

To determine whether conduct was unwelcome, courts consider whether the 

plaintiff “by her conduct indicated that the alleged sexual advances were unwelcome.” 

Meritor Sav. Bank, 477 U.S. at 68. However, “[s]ome recipients of sexual advances 

doubtless have difficulty coming up with a tactful way to refuse them without damaging 

their ability to get along at work, so unwelcomeness may in some cases be unclear.” 

E.E.O.C. v. Prospect Airport Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010). Put another 

way, “[a] plaintiff may appear to participate in sexual conduct without necessarily 

welcoming that conduct.” Chesier v. On Q Fin. Inc., 382 F. Supp. 3d 918, 924 (D. Ariz. 

2019). Thus, “the question whether particular conduct was indeed unwelcome presents 

difficult problems of proof and turns largely on credibility determinations committed to the 

trier of fact.” Meritor Sav. Bank, 477 U.S. at 68.

Circle K contends in passing that Petty welcomed the advances of Allsworth, noting 

that the “flirtatious text exchanges” and “suggestive photographs” in the days preceding 

the encounter “undermine her claim that the alleged conduct was unwelcome.” (Doc. 88 

at 8.) However, when viewing the evidence in the light most favorable to Petty, the incident 

in the walk-in cooler was certainly unwelcome: Petty made her lack of interest clear from 

the outset, tried to escape, was reduced to tears afterward, and promptly reported 

Allsworth’s behavior. There is, to put it mildly, a triable issue of fact as to whether 
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Allsworth’s conduct was unwelcome.

2. “Severe or Pervasive”

“[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, 

condition, or privilege’ of employment within the meaning of Title VII.” Meritor Sav. 

Bank, 477 U.S. at 67. “For sexual harassment to be actionable, it must be sufficiently severe 

or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive 

working environment.’” Id. (citation omitted) (emphasis added). 

“A working environment is abusive if ‘hostile conduct pollutes the victim’s 

workplace, making it more difficult for her to do her job, to take pride in her work, and to 

desire to stay on in her position.’” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 

2008) (citation omitted). “[W]hether an environment is ‘hostile’ or ‘abusive’ can be 

determined only by looking at all the circumstances,” which “may include 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.” Harris, 510 U.S. 17 at 23. Additionally, “a sexually 

objectionable environment must be both objectively and subjectively offensive, one that a 

reasonable person would find hostile or abusive, and one that the victim in fact did perceive 

to be so.” Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016) 

(citation omitted). “The required level of severity or seriousness ‘varies inversely with the 

pervasiveness or frequency of the conduct.’” Nichols v. Azteca Rest. Enterprises, Inc., 256 

F.3d 864, 872 (9th Cir. 2001) (citation omitted). “‘[S]imple teasing,’ offhand comments, 

and isolated incidents (unless extremely serious) will not amount to discriminatory changes 

in the ‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 

775, 788 (1998) (citation omitted). 

Here, as an initial matter, Petty cannot prevail under the “pervasive” prong of the 

“severe or pervasive” test. Although the text-message exchange between Petty and 

Allsworth in the days leading up to the encounter in the walk-in cooler provides helpful 

context for understanding that incident, Petty conceded during her deposition that “[a]side 
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from the incident on September 8, 2015,” there weren’t “any other times that [she] felt 

harassed by Mr. Allsworth.” (Doc. 88-2 at 34.) Thus, the hostile work environment claim

in this case is premised on a single incident—the encounter in the walk-in cooler. A claim 

for “pervasive” harassment must be based on more than a single incident. Cf. Brooks v. 

City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000) (rejecting plaintiff’s argument that 

“each of [her co-worker’s] improper touchings constituted a separate incident”).

3

Petty therefore must demonstrate that the harassment she endured was “severe.” 

This requirement was addressed in Brooks, a case that “consider[ed] the legal implications 

of a single, rather unsavory, episode of workplace sexual harassment.” 229 F.3d at 921. 

The plaintiff in Brooks was a telephone dispatcher. Id. One evening, a co-worker 

approached the plaintiff in an empty room, “placed his hand on her stomach and 

commented on its softness and sexiness.” Id. When the plaintiff tried to push him away, 

the coworker then cornered her and “forced his hand underneath and sweater and bra to 

fondle her bare breast.” Id. When the plaintiff again tried to stop the harassment, the coworker propositioned her and “approached [her] as if he would fondle her breasts again.” 

Id. The plaintiff then escaped and immediately reported the incident to management, which 

took steps to fire the co-worker following an investigation. Id. at 921-22.

Although the Ninth Circuit deemed the co-worker’s conduct “highly reprehensible” 

and found he had “clearly harassed Brooks as she tried to do her job,” it affirmed the district 

court’s grant of summary judgment in the employer’s favor because the harassment didn’t 

satisfy the “sufficiently severe or pervasive” requirement. Id. at 927. In reaching this 

conclusion, the court declined to resolve “whether a single instance of sexual harassment 

can ever be sufficient to establish a hostile work environment” but noted that, “[i]f a single 

incident can ever suffice . . . the incident must be extremely severe.” Id. at 925-26 

(emphasis added).4 The court concluded the harassment endured by Brooks didn’t meet 

3 The Court further notes that Petty’s response brief doesn’t address (let alone 

dispute) Circle K’s contention that “Petty’s hostile work environment claim is based solely 

on her September 8, 2015 encounter with Mr. Ellsworth in the walk-in cooler that lasted 

approximately five minutes.” (Doc. 88 at 7.) 

4 The Brooks court also cited, with approval, an out-of-circuit case in which “a single 
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this “extremely severe” standard because she “did not allege that she sought or required 

hospitalization; indeed, she did not suffer any physical injuries at all.” Id. at 926. 

This case is, in nearly all respects, similar to Brooks. Like Brooks, it involves a 

single incident, spanning no more than a few minutes, in which an employee was subjected 

to unwelcome sexual advances by a fellow employee. Like Brooks, the conduct was 

largely verbal, although there was some touching. Like Brooks, the touching didn’t take 

the form of slapping, beating, choking, or rape and didn’t result in any physical injury or 

hospitalization. And like Brooks, the victim quickly reported the incident after it was over, 

the employer then conducted an investigation, and the harassing employee was fired.5 

The one potentially significant difference between this case and Brooks is that the 

harasser here was Petty’s supervisor, whereas the harasser in Brooks was a co-worker. In 

Brooks, the Ninth Circuit observed in a footnote that “a sexual assault by a supervisor, even 

on a single occasion, may well be sufficiently severe.” Id. at 927 n.9 (emphasis added). 

Thus, it is necessary to address whether Allsworth’s role as Petty’s supervisor is enough, 

under Ninth Circuit law, to distinguish this case from Brooks.

The answer is no. Although the Brooks court didn’t provide definitive guidance 

concerning how to address one-off episodes of sexual harassment committed by 

incident was held to be sufficient” because the plaintiff had been slapped, beaten, hit in the 

head with a radio, choked with a phone cord, raped, and held captive overnight. Id. at 926 

(citing Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp. 1105 (N.D. Ill. 1994)).

5 During oral argument, Petty argued for the first time that, because Allsworth 

engaged in the spoliation of evidence (i.e., deleting some of the text messages he sent her), 

the Court should infer that the missing text messages involved particularly offensive 

statements and rely on this inference to deny summary judgment. This argument is 

unavailing. First, Petty failed to raise a spoliation claim in her response to Circle K’s 

summary judgment motion, so any such claim is (at least for summary judgment purposes) 

forfeited. Second, sanctions based on the spoliation of electronically stored information

(“ESI”), such as text messages, are available only if, inter alia, the missing ESI “cannot be 

restored or replaced through additional discovery.” See Fed. R. Civ. P. 37(e). Here, Petty 

was the person who received the text messages in question, so she had access to the 

messages—and could have testified about their content—regardless of whether Allsworth 

deleted them from his phone. Snider v. Danfoss, LLC, 2017 WL 2973464, *7 (N.D. Ill. 

2017) (denying request for spoliation sanctions under Rule 37(e), based on the defendant’s 

deletion of emails it sent to the plaintiff, because “Plaintiff is obviously a party to the suit 

and has first-hand knowledge of the substance of emails she sent or received. She is a party 

who was deposed. She could have been asked about her emails at the deposition, and if 

the case goes to trial, she can testify as to any emails at that time, assuming the testimony 

is admissible.”).
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supervisors, the court did cite, with approval, the Seventh Circuit’s decision in Saxton v. 

Am. Tel. & Tel. Co., 10 F.3d 526 (7th Cir. 1993).6 Saxton was an engineer who worked 

for AT&T. On one occasion, her supervisor unexpectedly “placed his hand on Saxton’s 

leg above the knee several times and once rubbed his hand along her upper thigh.” Id. at 

528. Although Saxton removed his hand and told him to stop, he later pulled her into a 

doorway and kissed her for a few seconds, prompting her to again push him away. Id. 

Three weeks later, during a work-related lunch, the supervisor “suddenly ‘lurched’ at her 

from behind some bushes,” but she rebuffed the advance. Id. During the ensuring hostile 

work environment lawsuit, the district court granted AT&T’s motion for summary 

judgment and the Seventh Circuit affirmed, holding that “[a]lthough [the supervisor’s] 

conduct was undoubtedly inappropriate, it was not so severe or pervasive as to create an 

objectively hostile work environment.” Id. at 534. 

The facts of this case resemble the facts of Saxton—Petty was subjected to some 

brief, unwanted touching by her supervisor, who also tried to kiss her. Thus, to the extent 

Saxton serves as a proxy for Ninth Circuit law (and Brooks suggests it does), Circle K is 

entitled to summary judgment on Petty’s hostile work environment claim. See also Quinn 

v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir. 1998), abrogated on other 

grounds by Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S. 101 (2002) (affirming grant of 

summary judgment to employer, even though the plaintiff’s supervisor “deliberately 

touched [the plaintiff’s] breasts with some papers that he was holding in his hand,” because 

such evidence was not “sufficient to support a finding that she was subjected to abuse of 

sufficient severity or pervasiveness”); Burnett v. Tyco Corp., 203 F.3d 980, 984-85 (6th 

Cir. 2000) (affirming grant of summary judgment to employer, even though “there was 

physical contact” by the supervisor during the underlying incident, because the “single 

battery” was not “sufficiently severe to create a hostile work environment”).7 

6 Brooks, 229 F.3d at 927 (citing Saxton for the proposition that there is “insufficient 

harassment to constitute a hostile work environment where plaintiff was rubbed and kissed

on one occasion, and resisted an attempted groping on another”).

7 Cf. Vance v. Ball St. Univ., 570 U.S. 421, 424 (2013) (acknowledging that “an 

employer’s liability for [sexual] harassment may depend on the status of the harasser” and 
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The Court wishes to emphasize that this conclusion “in no way condones 

[Allsworth’s] actions.” Brooks, 229 F.3d at 927. “Quite the opposite: The conduct of 

which [Petty] complains was highly reprehensible.” Id. Nevertheless, as was the case in 

Brooks, “‘not all workplace conduct that may be described as harassment affects a term, 

condition, or privilege of employment within the meaning of Title VII.’” Id. (citation 

omitted).

3. Ellerth/Faragher

Although, for the reasons stated above, Circle K is entitled to summary judgment 

on Petty’s hostile work environment claim, the Court will briefly address Circle K’s final 

argument concerning this claim: that it is entitled to immunity under the Ellerth/Faragher 

defense. (Doc. 88 at 10-12.) 

As background, the general rule is that “[a]n employer is subject to vicarious 

liability to a victimized employee for an actionable hostile environment created by a 

supervisor with immediate (or successively higher) authority over the employee.” 

Faragher, 524 U.S. at 807. However, “[w]hen no tangible employment action is taken, a 

defending employer may raise an affirmative defense to liability or damages, subject to 

proof by a preponderance of the evidence.” Id. To sustain this affirmative defense, which 

is known as the Ellerth/Faragher defense, the employer must show “‘(a) that the employer 

exercised reasonable care to prevent and correct promptly any sexually harassing behavior, 

and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive 

or corrective opportunities provided by the employer or to avoid harm otherwise.’” Craig 

v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Faragher, 524 U.S. 

at 807). 

Here, the Court need not resolve the applicability of the Ellerth/Faragher defense 

because Petty was not subjected to a hostile work environment. Cohen-Breen v. Gray 

Television Group, Inc., 661 F. Supp. 2d 1158, 1167 n.3 (D. Nev. 2009) (“[B]ecause 

that “different rules apply” when the harasser is a supervisor, but declining to hold that “the 

employer is strictly liable” for every act of harassment committed by a supervisor).
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Plaintiff has failed to present genuine issues of material fact with regard to her hostile work 

environment claim, Defendant need not rely on the [Ellerth/Faragher] affirmative 

defense.”). With that said, the Court will note that the law is unsettled concerning whether 

that defense is even applicable in a case (such as this case) involving a single incident of 

harassment where the employer and employee both responded appropriately. 

For an employer to satisfy the first prong of the Ellerth/Faragher defense, it must 

establish “both preventive and remedial measures.” Hardage v. CBS Broad., Inc., 427 F.3d 

1177, 1185 (9th Cir. 2005). See also Grissom v. Freeport-McMoran Morenci Inc., 2010 

WL 3489099, *6 (D. Ariz. 2010) (explaining that this standard requires both the adoption 

of an anti-harassment policy disseminated to employees and “adequate corrective 

measures”). Here, Circle K has done so: (1) it provided proof of a policy adopted and 

disseminated to employees and (2) Allsworth was almost immediately told to refrain from 

contacting Petty, was suspended without pay the day after the incident, and was terminated 

shortly thereafter. (Doc. 88-2 at 9-11, 60-61; Doc. 88-3 at 14-15, 17-18, 64, 94.) 

As for the second prong, Circle K’s position is that “prior to September 8, 2015, 

Ms. Petty did not report any harassment to her supervisor or any other Circle K employee.” 

(Doc. 88 at 11.) However, by Petty’s own admission, the only time she felt harassed by 

Allsworth was in the walk-in cooler. (Doc. 88-2 at 34.) In other words, before September 

8, 2015, there wasn’t any harassment for Petty to report. Moreover, Petty didn’t 

unreasonably fail to take advantage of corrective measures—she reported the harassment 

immediately after Allsworth left the store. (Id. at 28.) On the other hand, there’s not much 

Circle K could have done differently after it received Petty’s report—its response to the 

incident was swift and it had no reason to suspect Allsworth was engaging in sexual 

harassment before it received Petty’s complaint. (Doc. 88-3 at 49-50.) 

In McCurdy v. Arkansas State Police, 375 F.3d 762 (8th Cir. 2004), the Eighth 

Circuit observed that “the promise of an affirmative defense in single incident cases not 

involving a tangible employment action [is] illusory—the pragmatic result would be to 

hold [employers] strictly liable for all single incidents of supervisor harassment, while 
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allowing other employers an affirmative defense for multiple and ongoing incidents of 

supervisor harassment.” Id. at 772. Thus, the Eighth Circuit held that employer-defendants 

in such cases are entitled to a “modified Ellerth/Faragher affirmative defense, despite the 

. . . inability to prove the second element.” Id. Other courts, however, have declined to 

follow the Eighth Circuit’s approach. Chapman v. Carmike Cinemas, 307 F. App’x 164, 

170 (10th Cir. 2009) (declining to modify the affirmative defense and “continu[ing] to 

require that the employer prove the employee did not promptly report the single-incident 

offense before the employer may avail itself of the Ellerth/Faragher defense”). 

Unfortunately, the parties’ moving papers fail to provide any guidance concerning 

how the Ninth Circuit would address this issue. Circle K does not cite McCurdy in its 

motion or reply and has not argued the Ninth Circuit follows the same “modified” approach 

in single-incident cases.8 Petty, meanwhile, doesn’t bother to cite any cases in her response 

to the summary judgment motion—her 17-page brief simply recites and summarizes 

various facts. Given this backdrop, and in light of Circle K’s entitlement to summary 

judgment on the hostile work environment claim on other grounds, the Court will decline 

to resolve whether Circle K is entitled to summary judgment under Ellerth/Faragher. 

Resolution of that issue is better left for a future case.

B. Quid Pro Quo

The Title VII claim in Count One can be read as encompassing an allegation of quid 

pro quo harassment. (Doc. 1 ¶ 22.) Circle K’s initial motion did not address this theory, 

but Petty stated in her response that Allsworth’s behavior was “classic quid pro quo sexual 

harassment.” (Doc. 89 at 9, italics in original.) Thus, in its reply, Circle K argued that 

Petty cannot prevail on a quid pro quo theory. (Doc. 92 at 3.)

This sequence creates an initial procedural hurdle. As a general rule, “where new 

evidence is presented in a reply to a motion for summary judgment, the district court should 

not consider the new evidence without giving the non-movant an opportunity to respond.” 

Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (alteration omitted). “The rule 

8 According to Westlaw, McCurdy has never been cited by the Ninth Circuit.
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exists to guard against unfairness and surprise.” Sunburst Minerals, LLC v. Emerald 

Copper Corp., 300 F. Supp. 3d 1056, 1060 (D. Ariz. 2018). However, where arguments 

in a reply are in response to arguments set forth in an opposition brief, the “arguments are 

not new; they are rebuttal arguments, which are permitted in a reply brief.” Beckhum v. 

Hirsch, 2010 WL 582095, *8 (D. Ariz. 2010). Thus, the Court can and will consider the 

quid pro quo arguments raised by Circle K.

To prove sexual harassment under a quid pro quo theory, the plaintiff must show 

that the supervisor “explicitly or implicitly condition[ed] a job, a job benefit, or the absence 

of a job detriment, upon an employee’s acceptance of sexual conduct.” Craig, 496 F.3d at

1054 (internal quotation omitted). Quid pro quo liability for a supervisor’s actions 

“attaches only if a quid pro quo threat is implemented by some form of sufficiently concrete 

employment action. An unfulfilled, or inchoate, quid pro quo threat by a supervisor is not 

enough; something more is required.” Holly D. v. California Inst. of Tech., 339 F.3d 1158, 

1170 (9th Cir. 2003). “When the request for sexual favors and the conditioning of benefits 

is implicit, rather than explicit, a plaintiff must show that the supervisor’s words or conduct 

would communicate to a reasonable woman in the employee’s position that sexual favors 

were requested and that such participation is a condition of employment.” De La Torre v. 

Merck Enterprises, Inc., 540 F. Supp. 2d 1066, 1079 (D. Ariz. 2008). 

Here, the evidence proffered by Petty, even when viewed in the light most favorable 

to her, fails to establish a question of material fact sufficient to survive summary judgment. 

As an initial matter, Petty improperly points to her deposition testimony as proof that 

Allsworth offered a quid pro quo—she states that “Allsworth informed Plaintiff that he did 

not ‘consider her to be a piece of ass’ and that Plaintiff had potential to become a manager 

within a year or so ‘if she would just listen to him [and comply with his demands].” (Doc. 

89 at 9.) The problem with this argument is that it mischaracterizes what Petty actually 

said during her deposition. Petty’s account of the encounter in the walk-in cooler appears 

at pages 47-51 of her deposition transcript. (Doc. 88-2 at 24-28.) At no point does Petty 

claim that Allsworth threatened to interfere with her promotion unless she agreed to his 
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sexual demands. To the contrary, the transcript reveals that Petty claimed that Allsworth 

“kept begging [her] . . . to listen to him and . . . ,” at which point Petty trailed off. (Doc. 

88-2 at 27.) In response, Circle K’s counsel immediately asked: “Do you remember 

anything else he said?” (Id.) Petty responded: “No. No, I don’t.” (Id.) Petty cannot avoid 

summary judgment by inserting, in brackets, made-up words that don’t actually appear in, 

and contradict, her deposition testimony. 

Nevertheless, even assuming that a reasonable juror could construe the text 

Allsworth sent to Petty immediately after the incident in the walk-in cooler (which stated 

that Allsworth’s romantic interest in Petty “ha[d] nothing to do with” her job prospects and 

promotion potential, see Doc. 88-3 at 64) as a veiled quid pro quo offer, it was nothing 

more than an inchoate threat—he was terminated shortly after Petty reported his actions 

and Petty does not allege that he ever caused her to suffer a concrete employment action, 

as is required to establish a viable quid pro quo claim. Holly D., 339 F.3d at 1170 (“An 

unfulfilled, or inchoate, quid pro quo threat by a supervisor is not enough; something more 

is required.”).

For these reasons, Circle K is entitled to summary judgment on Count One to the 

extent it is premised on a quid pro quo theory.

C. Retaliation

Circle K argues that it “is entitled to summary judgment on Ms. Petty’s retaliation 

claim to the extent it arises from her resignation” because (1) she failed to exhaust her 

administrative remedies pertaining to any claim of constructive discharge and (2) she was 

not, on the merits, constructively discharged. (Doc. 88 at 2, 12-14.) Because the Court 

agrees with Circle K’s first argument, there is no need to reach the second argument.9

9 That said, Circle K’s arguments concerning the second issue are strong. The Ninth 

Circuit “set[s] the bar high for a claim of constructive discharge because federal 

antidiscrimination policies are better served when the employee and employer attack 

discrimination within their existing employment relationship, rather than when the 

employee walks away and then later litigates whether his employment situation was 

intolerable.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). Here, the fact that 

Petty continued working for nine months after the alleged retaliatory actions took place 

undermines her suggestion that the resulting conditions were extreme. Id. at 1185 (holding 

that a plaintiff who continued working for eight months was not, “[a]s a matter of law, . . . 
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“Under Title VII, a plaintiff must exhaust her administrative remedies by filing a 

timely charge with the EEOC . . . , thereby affording the agency an opportunity to 

investigate the charge.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002). 

In any subsequent lawsuit, the plaintiff may pursue “all allegations of discrimination 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.’” Id. at 

1100 (citation, emphasis, and internal quotation marks omitted). In other words, “[t]he 

jurisdictional scope of a Title VII claimant’s court action depends upon the scope of both

the EEOC charge and the EEOC investigation.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 

(9th Cir. 1990).

Here, Circle K focuses on the official EEOC charge form that Petty signed on 

September 17, 2015 (Doc. 89-4), arguing that because the document only alleges 

discrimination (the box next to “retaliation” isn’t checked) and because Petty never 

amended the document to add allegations pertaining to retaliation and/or constructive 

discharge, it follows that Petty can’t show exhaustion. (Doc. 88 at 12 [“Ms. Petty did not 

check the box for retaliation in the section of the charge form titled ‘Discrimination Based 

On’ . . . [and never] amend[ed] her existing charge of discrimination after resigning from 

Circle K.”].)

Insofar as the charge document itself goes, Circle K is correct. When determining 

whether a plaintiff’s claims are reasonably related to the allegations in the EEOC charge, 

courts “consider such factors as the alleged basis of the discrimination, dates of 

discriminatory acts specified within the charge, perpetrators of discrimination named in the 

charge, and any locations at which discrimination is alleged to have occurred.” Vasquez v. 

Cty. of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003). Here, only one of those factors 

(“any locations at which discrimination is alleged to have occurred”) could support a 

finding that Petty’s constructive discharge claim is “reasonably related” to her EEOC 

charge. All of the other factors cut decisively in the other direction: (1) the “alleged basis 

someone who finds his working conditions so intolerable that he felt compelled to resign”). 
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of the discrimination” is different because Petty’s EEOC charge focuses only Allsworth’s 

conduct in the walk-in cooler on September 8, 2015 and a Circle K human resource 

manager’s perceived indifference to the incident during a meeting with Petty on September 

9, 2015—it doesn’t allege any retaliation by Circle K and doesn’t allege that Petty was 

subsequently discharged; (2) the “dates of discriminatory acts specified within the charge” 

don’t support a reasonable-relation finding because the EEOC charge only mentions events 

that occurred on September 8-9, 2015, nine months before the constructive discharge 

allegedly occurred; and (3) the only “perpetrator[] of discrimination named in the charge,” 

Allsworth, obviously wasn’t involved in any decision to constructively discharge Petty 

because he was fired by Circle K nine months before that decision took place. 

The exhaustion analysis, however, doesn’t stop with the EEOC charge form. The 

Court also must assess whether the current charges fall within the “scope of the EEOC’s 

actual investigation” or an “investigation which can reasonably be expected to grow out of 

the charge.” B.K.B., 276 F.3d at 1100. Here, Petty filled out an intake form when she 

initially met with the EEOC on September 17, 2015. (Doc. 89-6.) In the portion of the 

form requiring Petty to specify “the reason (basis) for your claim of employment 

discrimination,” Petty checked the boxes next to the words “Sex” and “Retaliation.” (Doc. 

89-6 at 3.) Additionally, the EEOC investigator’s notes from the intake interview on 

September 17, 2015 include a stand-alone section entitled “Retaliation,” which includes 

the following narrative: “[Petty] stated she is now being placed on the graveyard shift. 

[Petty] stated HR is constantly calling asking her if she has spoken to the police or anyone 

about the incident. [Petty] believes they are trying to push her to quit. . . .” (Doc. 89-5 at 

3.) The record is silent as to why the EEOC didn’t include these allegations in the official 

charge form that Petty later signed.

There is no evidence the EEOC actually pursued any retaliation-related allegations 

when investigating Petty’s charge. Nevertheless, even assuming that the scope of the 

EEOC’s investigation reasonably could have extended (or actually did extend) beyond 

Allsworth’s conduct during the incident in the walk-in cooler to encompass the acts of post-
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incident retaliation Petty mentioned during her intake interview, it doesn’t follow that the 

investigation also reasonably could have been expected to encompass Petty’s current claim 

for constructive discharge. In Green v. Brennan, 136 S. Ct. 1769 (2016), the Supreme 

Court held that when an employee wishes to pursue a Title VII-based claim for constructive 

discharge, the time to present that claim to the EEOC “begins running only after the 

employee resigns.” Id. at 1774 (emphasis added). This is so, the Court held, because “in 

the context of a constructive-discharge claim, a resignation is part of the ‘complete and 

present cause of action’ necessary before a limitations period ordinarily begins to run.” Id.

at 1776 (citation omitted). Thus, “such a claim accrues only after an employee resigns.” 

Id. See also id. at 1780 (“[An employee’s] resignation . . . is not merely an inevitable 

consequence of the discrimination he suffered; it is an essential part of his constructivedischarge claim. That is, [an employee] could sue for constructive discharge until he 

actually resigned.”).

In light of these principles, it was incumbent upon Petty (who was represented by 

counsel during the EEOC investigation) to amend her formal EEOC charge after she 

stopped working for Circle K in June 2016 or, at a minimum, to inform the EEOC of her 

new allegation that she had been constructively discharged. Her failure to do so means she 

cannot assert a constructive discharge claim in this case. To hold otherwise would 

“actively negate Title VII’s remedial structure.” Green, 136 S. Ct. at 1178.

A similar situation arose in Villa v. Arizona, 2019 WL 1858138 (D. Ariz. 2019). 

There, the plaintiff filed a charge of discrimination with the EEOC in March 2015 “alleging 

that he had been discriminated and retaliated against because of his sex and national 

origin.” Id. at *4. More than two years later, in September 2017, the plaintiff resigned. 

Id. at *5. During the ensuing Title VII lawsuit, the plaintiff sought to assert a constructive 

discharge claim but the court rejected it on exhaustion grounds, holding: 

Plaintiff’s constructive discharge claim [is] beyond the scope of his EEOC 

charge, which only contained retaliation allegations and harassment 

allegations regarding the terms and conditions of his employment. Plaintiff’s 

EEOC charge is directed solely at conduct which took place while he was 

still working, and an investigation into this conduct would not have 
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encompassed his subsequent claim that he was constructively discharged. . . 

. [T]he allegations in Plaintiff’s EEOC charge in no way express that 

Plaintiff believed his working conditions were so difficult that he felt 

compelled to resign.

Id. at *9 (internal citation omitted). The same logic applies here. Thus, Circle K is entitled 

to summary judgment on Petty’s retaliation-based Title VII claim to the extent that claim 

is premised on a constructive discharge theory. See also Hellman v. Weisberg, 2007 WL 

505308, *2 (D. Ariz. 2007) (plaintiff failed to exhaust her administrative remedies as to 

her constructive discharge claim because her EEOC charge only claimed retaliation for 

engaging in protected activity and she did not resign until eight months after filing the 

charge).

IV. IIED Claim

Count Three of the complaint asserts state-law claims for “intentional and/or 

negligent infliction of emotional distress.” (Doc. 1 ¶ 49.) Although the complaint 

identifies Allsworth as the only person who engaged in extreme and outrageous conduct, 

it alleges that Circle K may be held liable “vicariously” for Allsworth’s conduct. (Id.)

In its motion, Circle K doesn’t address whether, under Arizona law, an employer 

may be held vicariously liable for the tort of IIED. (Doc. 88 at 14.) Instead, Circle K 

argues that its conduct—responding immediately to Petty’s complaint, conducting an 

investigation, and then firing Allsworth—was “hardly ‘atrocious’ or ‘utterly intolerable’ 

behavior” and thus cannot support IIED liability. (Id.) 

The Court agrees with Circle K that the company itself did nothing that approaches 

conduct that could be characterized as extreme or outrageous. Thus, had Petty’s IIED 

claim rested on that legal theory, Circle K would be entitled to summary judgment. 

However, the complaint makes clear that Petty is traveling under an entirely different 

theory, vicarious liability, and Circle K doesn’t address the viability of that theory in its 

moving papers. Accordingly, Circle K’s motion for summary judgment as to the IIED 

claim is denied.10

10 The Court further notes that some Arizona cases seem to suggest an employer may 
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V. Front and Back Pay

Circle K argues that Petty is not entitled to front or back pay on her Title VII claim 

because she “did not seek employment for several months after her voluntary resignation 

from Circle K,” quit or abandoned the two jobs (at Walmart and U-Haul) she eventually 

obtained, and thus failed to comply with the rule that “Title VII imposes upon plaintiffs 

seeking back [and front] pay a duty to mitigate damages by seeking alternative employment 

with reasonable diligence.” (Doc. 88 at 15-16, quotations omitted). In her response, Petty 

barely addresses this argument—her sole response is that “Plaintiff sought employment, 

working part-time cleaning houses. [Also], Plaintiff did testify that she was under extreme 

distress, and had difficulty managing her household with her emotional issues and impact 

on her husband and children. Such are fact issues for the jury.” (Doc. 89 at 16.) In its 

reply, Circle K contends that Petty’s house-cleaning claim is a “conclusory allegation[]” 

that is “unsupported” by “any evidence in the record.” (Doc. 92 at 12.)

It is true that “plaintiffs seeking back pay” under Title VII have “a duty to mitigate 

damages by seeking alternative employment with ‘reasonable diligence.’ The same 

requirement has been used to constrain awards of front pay.” Caudle v. Bristow Optical 

Co., Inc., 224 F.3d 1014, 1020 (9th Cir. 2000) (citations omitted). However, this mitigation 

requirement is not, contrary to Circle K’s argument, a threshold requirement that a plaintiff 

must satisfy in every case before being allowed to seek a front or back pay award—instead, 

it is merely a basis for reducing such an award. See, e.g., Cassino v. Reichhold Chemicals, 

Inc., 817 F.2d 1338, 1347 (9th Cir. 1987) (“It is clear that front pay awards, like backpay 

awards, must be reduced by the amount plaintiff could earn using reasonable mitigation 

efforts.”). See also id. at 1345 (“Any wages the plaintiff actually earned after termination, 

plus the amount the plaintiff would have earned if he had made reasonable efforts, must be 

subtracted from a backpay award.”). Circle K has not identified any case from the Ninth 

be held vicariously liable for IIED when a supervisory employee engages in sexual 

harassment. State, Dep’t of Admin. v. Schallock, 941 P.2d 1275, 1281-87 (Ariz. 1997) 

(reversing the Court of Appeals’ determination that a supervisor’s intentional infliction of 

emotional distress—caused by the sexual harassment of a subordinate—could not be within 

the course and scope of employment as a matter of law).
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Circuit in which a court issued an across-the-board grant of summary judgment on a claim 

for front or back pay based on the plaintiff’s failure to mitigate.

Nevertheless, Circle K is entitled to summary judgment on these claims for a 

different reason. In general, “[a]n employee who quits cannot secure backpay unless his 

employer constructively discharged him.” Satterwhite v. Smith, 744 F.2d 1380, 1381 n.1

(9th Cir. 1984). See also Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990) 

(“An employee who resigns, as Sanchez did, cannot secure backpay unless his employer 

constructively discharged him.”).11 Similarly, “[t]o receive front pay, a Title VII plaintiff 

must show that her employer’s violations of Title VII caused her loss of employment.” 

Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1155 (9th Cir. 1999). Here, the 

Court has already determined that Petty cannot assert a Title VII claim premised on a 

constructive-discharge theory because she failed to exhaust that claim with the EEOC. 

Given this conclusion, Petty cannot recover front or back pay. See also Kelly v. Matanuska 

Elec. Ass’n, Inc., 2010 WL 11566475, *2 (D. Alaska 2010) (“[B]ecause plaintiff has not 

asserted a constructive discharge claim, plaintiff is precluded, as a matter of law, from 

seeking back pay in connection with his hostile work environment claims.”).

In a supplemental brief filed before oral argument, Petty argued that, in Passantino 

v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000), the Ninth 

Circuit “rejected the argument that lost wages cannot be recovered without a finding of 

constructive discharge.” (Doc. 100 at 6.)12 This argument lacks merit. In Passantino, 

11 The Ninth Circuit has recognized certain exceptions to this rule, including that a 

Title VII plaintiff may recover back pay, even in the absence of a constructive discharge, 

in refusal-to-hire cases. Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir. 1986) 

(identifying Satterwhite as one of the “precedents that prohibit an employee, who has been 

denied discriminatorily an opportunity for promotion, from collecting backpay for periods 

beyond that employee’s voluntary resignation, unless the employee demonstrates that she 

was constructively discharged by the employer” but stating that because “[t]he 

discriminatory refusal to offer Thorne a position as a member of the police force constituted 

a refusal to hire . . . the doctrine of constructive discharge is inapplicable”).

12 Under Rule 56(f)(2), the court may grant summary judgment “on grounds not raised 

by a party” after “giving notice and a reasonable time to respond.” Here, the Court issued 

a tentative order concluding that Petty had failed to exhaust her constructive discharge 

claim (Doc. 94) and then authorized the parties to file supplemental briefs, before oral 

argument, addressing whether Petty would be precluded from seeking front or back pay in 

light of this determination (Doc. 98). In her supplemental brief, Petty cited a superseded 
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“[t]he district court allocated all of the compensatory damages, front pay, and backpay to 

Passantino’s state law clam, while allocating the punitive damages to her Title VII claim.” 

212 F.3d at 509. Because “the damage awards involving backpay, front pay, and emotional 

damages were allocated to the state law claim,” the Passantino court “analyze[d] those 

awards under Washington law.” Id. at 510. Thus, Passantino does not address the 

availability of front and back pay under Title VII, much less demonstrate that Petty may 

recover front and back pay pursuant to her Title VII claim in this case even though she is 

barred (due to lack of exhaustion) from asserting a Title VII constructive discharge claim.

13

Accordingly, IT IS ORDERED that:

(1) Circle K’s motion for partial summary judgment (Doc. 88) is granted in part 

and denied in part.

Dated this 13th day of March, 2020.

version of Passantino (Doc. 100 at 4), but the Court construes that citation as a reference 

to the version addressed above.

13 Petty has asserted two state-law claims in addition to her Title VII claim, and 

Passantino suggests that at least some states (e.g., the state of Washington) allow 

employees to recover front and back pay, as a matter of state law, even in the absence of a 

constructive discharge. Nevertheless, during oral argument, Circle K stated that Petty 

would not be able to recover front and back pay via her state-law claims in this case because 

Arizona law does not permit such recovery. Because this issue has not yet been briefed by 

the parties, the Court takes no position on it.