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WO NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Brittany Everts, 

Plaintiff, 

v. 

Sushi Brokers LLC, 

Defendant.

No. CV-15-02066-PHX-JJT

ORDER 

 At issue is Plaintiff’s Amended Motion for Summary Judgment (Doc. 70, Mot. 

Summ. J.), to which Defendant filed a Response (Doc. 73, Resp.), and Plaintiff filed a 

Reply (Doc. 75, Reply). Because the parties’ briefs were adequate for the Court to 

resolve the issues arising in Plaintiff’s Motion, the Court finds this matter appropriate for 

decision without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the 

Court grants Plaintiff’s Motion for Summary Judgment on the issue of Defendant’s 

liability. 

I. BACKGROUND 

 On October 15, 2015, Plaintiff Brittany Everts filed a Complaint, the operative 

pleading, against Defendant Sushi Brokers, LLC. (Doc. 1, Compl. at 1.) Plaintiff alleges 

two claims: (Count 1) pregnancy discrimination in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e; and (Count 2) gender discrimination in violation 

of the Arizona Civil Rights Act (“ACRA”), A.R.S. § 41-1463(B). (Compl. ¶¶ 37-53.) 

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 Beginning in early 2011, Plaintiff worked as a sushi server at Defendant’s 

restaurant. (Doc. 71, PSOF ¶¶ 1–2.) Later that year, she became pregnant, and her 

pregnancy began to show. (PSOF ¶¶ 1–2.) On September 18, 2011, Randon L. Miller, 

Defendant’s managing member and thus owner of the restaurant, left a voicemail for 

Plaintiff’s shift manager, Ms. Morton, stating the following: 

[W]e got Baby Momma. We got—oh, I can’t leave these messages because 

obviously we’d get in trouble—but it’s just ridiculous. It’s all the same 

stuff. We can’t have a big fat pregnant woman working in my restaurant. 

I’m sorry it doesn’t fly. I will not hire them when they walk in. I will not 

eat them with eggs. I will not eat them with ham. No green eggs; no ham; 

no nothing . . . I don’t know how I have—who I have to deal with to get 

people off my schedule. So please call me tomorrow and we’ll work it out. 

(PSOF ¶ 9.)1

 On September 20, 2011, Ms. Morton fired Plaintiff without citing her pregnancy 

as the reason for the termination. (PSOF ¶ 10.) Plaintiff avers that Defendant terminated 

her after she refused to accept a reassignment to the hostess position because of her 

pregnancy. (PSOF ¶ 21.) Defendant concedes that one of the reasons it fired Plaintiff was 

because she refused to accept reassignment to the hostess position as a reasonable 

accommodation designed to protect her health and safety during her pregnancy. (Doc. 74, 

DSOF ¶¶ 21, 23–26.) On September 27, 2011, Plaintiff filed a charge of discrimination 

with the Equal Employment Opportunity Commission (“EEOC”). (PSOF ¶ 37.) On 

August 24, 2015, Plaintiff received a Notice of Right to Sue from the EEOC, thus 

allowing the present action. (PSOF ¶ 37.) 

II. LEGAL STANDARD 

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 

appropriate when: (1) the movant shows that there is no genuine dispute as to any 

 

1

 The Court also permitted Plaintiff to non-electronically file an audio recording of the voicemail. (Doc. 79.) 

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material fact; and (2) after viewing the evidence most favorably to the non-moving party, 

the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 

1288–89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect 

the outcome of the suit under governing [substantive] law will properly preclude the 

entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

A “genuine issue” of material fact arises only “if the evidence is such that a reasonable 

jury could return a verdict for the non-moving party.” Id.

 In considering a motion for summary judgment, the court must regard as true the 

non-moving party’s evidence if it is supported by affidavits or other evidentiary material. 

Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not 

merely rest on its pleadings; it must produce some significant probative evidence tending 

to contradict the moving party’s allegations, thereby creating a question of material fact. 

Anderson, 477 U.S. at 256–57 (holding that a plaintiff must present affirmative evidence 

in order to defeat the defendant’s properly supported motion for summary judgment); 

First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 

 “A summary judgment motion cannot be defeated by relying solely on conclusory 

allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 

1989). “Summary judgment must be entered ‘against a party who fails to make a showing 

sufficient to establish the existence of an element essential to that party’s case, and on 

which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 

1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 

III. ANALYSIS 

 A. Title VII Discrimination 

 Plaintiff first moves for summary judgment on Defendant’s liability for her Title 

VII pregnancy discrimination claim. (Mot. Summ. J. at 6–17.) 

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1. Legal Standard 

Under Title VII, an employer cannot discharge or discriminate against an 

individual based on sex. 42 U.S.C. § 2000e-2(a)(1). As amended by the Pregnancy 

Discrimination Act [“PDA”], sex discrimination under Title VII includes discrimination 

on the basis of pregnancy. 42 U.S.C. § 2000e(k). 

 Liability in a disparate treatment case, such as this one, “depends on whether the 

protected trait actually motivated the employer’s decision.” Raytheon Co. v. Hernandez, 

540 U.S. 44, 52 (2003) (ellipsis and internal quotation marks omitted). A plaintiff can 

prove disparate treatment “either (1) by direct evidence that a workplace policy, practice, 

or decision relies expressly on a protected characteristic, or (2) by using the burdenshifting framework set forth in McDonnell Douglas.” Young v. United Parcel Service, 

Inc., 135 S. Ct. 1338, 1345 (2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973)). 

 To prove disparate treatment under Title VII using direct evidence,2

 a plaintiff 

must show that the employer had a facially discriminatory policy—one which on its face 

applies less favorably to a protected group. Frank v. United Airlines, Inc., 216 F.3d 845, 

854 (9th Cir. 2000). When an employer openly and explicitly uses gender as a basis for 

disparate treatment, the employer in effect admits systematic discrimination and the case 

turns on whether such disparate treatment is justified under Title VII. Id. Rather than 

applying the McDonnell Douglas test, once a policy is shown to be facially 

discriminatory, the court simply asks whether sex was a “bona fide occupational 

qualification” (“BFOQ”) as outlined in 42 U.S.C. § 2000e-2(e). Cmty. House, Inc. v. City 

of Boise, 490 F.3d 1041, 1049 (9th Cir. 2006). The BFOQ defense is read narrowly and 

can be established only by “objective, verifiable requirement[s] . . . [that] concern jobrelated skills and aptitudes.” Int’l Union, United Auto., Aerospace & Agric. Implement 

Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991). To prove that 

 

2

 Because the Court resolves Plaintiff’s Motion under the direct evidence test, it 

need not set forth the legal standard for disparate treatment using indirect evidence. 

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sex3 is a BFOQ, an employer must prove by a preponderance of the evidence that “1) the 

job qualification justifying the discrimination is reasonably necessary to the essence of its 

business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a 

‘substantial basis for believing that all or nearly all [pregnant women] lack the 

qualification,’ or . . . (b) it is impossible or ‘highly impractical . . . to insure by individual 

testing that its employees will have the necessary qualifications for the job.” EEOC v. 

Boeing Co., 843 F.2d 1213, 1214 (9thCir. 1988) (citation omitted). 

 2. Analysis 

 In discrimination cases, “[d]irect evidence is evidence which, if believed, proves 

the fact [of discriminatory animus] without inference or presumption.” Rashdan v. 

Geissberger, 764 F.3d 1179, 1183 (9th Cir. 2014) (citation omitted). In other words, 

direct evidence is “evidence of conduct or statements by persons involved in the 

decision-making process that may be viewed as directly reflecting the alleged 

discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude 

was more likely than not a motivating factor in the employer’s decision.” Shelley v. 

Geren, 666 F.3d 599, 615–16 (9th Cir. 2012) (citation omitted). Specifically, direct 

evidence requires an admission by the decision-maker that his or her actions were based 

on the prohibited animus. Day v. LSI Corp., 174 F. Supp. 3d 1130, 1162 (D. Ariz. 2016). 

Absent such remarks, a plaintiff must show a nexus between a decision-maker’s actions 

and a superior’s discriminatory remarks. Vasquez v. County of Los Angeles, 349 F.3d 

634, 640 (9th Cir. 2003). Alternatively, a facially discriminatory policy can be direct 

evidence of systematic sex discrimination. Frank, 216 F.3d at 854. 

 Plaintiff claims that a voice mail that Randon L. Miller, the restaurant’s owner, left 

for Plaintiff’s shift manager, Ms. Morton, is direct evidence of discriminatory animus. 

(Mot. Summ. J. at 8.) Defendant disputes that the voicemail is about Plaintiff because 

Mr. Miller never referred to Plaintiff by name and the voicemail never instructed 

 

3

 Defendant argues that non-pregnancy is a BFOQ instead of explicitly arguing that sex is a BFOQ in this case. (Resp. at 8.) However, discrimination on the basis of 

pregnancy is a type of sex discrimination. 42 U.S.C. § 2000e(k). 

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Ms. Morton to fire anyone. (Resp. at 10.) Defendant, as supported by Mr. Miller’s 

affidavit, claims that Mr. Miller is not involved in the daily operations of the restaurant, 

including the termination of employees. (Resp. at 10.) Mr. Miller’s affidavit creates a 

genuine issue of material fact regarding whether he is the decision-maker at the 

restaurant. Therefore, Mr. Miller’s voicemail is not direct evidence because it requires the 

Court to infer that Mr. Miller’s discriminatory remarks have a nexus with Ms. Morton’s 

termination of Plaintiff. A reasonable jury could find that no such nexus exists, and thus 

summary judgment supported solely by the voicemail is inappropriate. Nevertheless, 

Plaintiff has presented unrefuted, direct evidence that Defendant has a facially 

discriminatory policy. 

 Plaintiff proffers evidence that Defendant has a policy of reassigning pregnant 

servers to the lower paying hostess position—a policy that is discriminatory on its face. 

(Mot. Summ. J. at 7.) The parties do not dispute that the hostess position is materially 

different than the server position. But Defendant argues that it has an unwritten policy of 

reassigning all employees who may be injured by working behind the bar to the hostess 

position. (DSOF ¶ 5.) Specifically, Defendant claims that employees who are too large, 

including pregnant servers and non-pregnant overweight workers, are not allowed to 

work behind the bar. (DSOF ¶¶ 13–15, 18–19, 29.) However, Defendant failed to provide 

significant probative evidence to create a question of material fact on this issue because 

none of the evidence cited shows that Defendant reassigned any other employee except 

Plaintiff to other positions because of his or her size. Instead, Defendant’s cited evidence 

shows that in the past, the restaurant switched chefs around to strategically place bigger 

employees in the middle behind the bar to maximize space instead of moving them to 

other positions. (Doc. 74-2, Ex. B, Dep. of Chris Kruidenier (“Kruidenier–Def. 

Excerpts”) at 57.) 

 On the other hand, the record contains overwhelming evidence that Defendant has 

a standard, unwritten policy at the restaurant of reassigning pregnant servers to the 

hostess position. For example, speaking about the restaurant in his videotaped deposition, 

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Mr. Miller admitted that “[w]e don’t believe because [servers] are pregnant that they 

should be fired. They all go to the hostess stand.” (Doc. 70-6, Dep. of Randon Lee Miller 

(“Miller–Pl. Excerpts”) at 2.) Mr. Miller admitted that reassignment has been a standard 

practice at the restaurant for fifteen years and that another pregnant employee had been 

reassigned to a hostess position just days before the videotaped deposition. (Miller–Pl. 

Excerpts at 2–4.) 

 There is also overwhelming evidence that Defendant tried to reassign Plaintiff to a 

hostess position out of fear for her safety and the safety of her fetus. First, Defendant 

provides evidence in which it explicitly and repeatedly admits that it fired Plaintiff for 

refusing to accept the reassignment to a hostess position as a reasonable accommodation 

to protect the health and safety of Plaintiff and her fetus. (DSOF ¶¶ 21, 23–25, 35.) 

Second, Mr. Miller’s videotaped deposition includes multiple admissions that Defendant 

tried to reassign Plaintiff to a hostess position out of concern for the safety of her fetus. 

For example, in talking about Plaintiff, Mr. Miller said: “I wasn’t worried about her. I 

was worried about her kid getting hurt. I didn’t care about my bartenders getting punched 

in the gut, I was just worried about a child and not that [Plaintiff] was going to get hurt or 

not.” (Doc. 74-3, Ex. C, Dep. of Randon Lee Miller (“Miller-Def. Excerpts”) at 86.) 

Third, Chris Kruidenier, a manager at the restaurant, similarly confirmed that Defendant 

tried to reassign Plaintiff to a hostess position because of “the danger of the position she 

was in” and out of concern for Plaintiff’s safety and the safety of her fetus. (Doc. 70-4, 

Dep. of Chris Kruidenier (“Kruidenier–Pl. Excerpts”) at 4, 6.) Fourth, Jonathon Manzer, 

a manager at the restaurant, testified that the restaurant tried to reassign Plaintiff to a 

hostess position because the server position was “potentially dangerous for somebody . . . 

that was in [Plaintiff’s] condition.” (Doc. 70-5, Dep. of Jonathon Manzer (“Manzer–Pl. 

Excerpts”) at 2–3.) Mr. Manzer also testified that Defendant tried to reassign Plaintiff 

because the server position, which required Plaintiff to carry plates, knives, and forks 

could “potentially be harmful to her and the child that she was carrying.” (Manzer–Pl. 

Excerpts at 5.) The Court finds that Defendant indisputably had a standard practice of 

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reassigning pregnant servers to the hostess position. Additionally, the Court finds that 

Defendant indisputably tried to reassign Plaintiff to a hostess position, in part, out of fear 

for the safety of her fetus and subsequently fired Plaintiff when she refused to accept this 

reassignment. 

 Having concluded that no dispute of material fact remains that Defendant overtly 

discriminated against Plaintiff based on her pregnancy, the Court next addresses if such 

disparate treatment is justified under Title VII. Frank, 216 F.3d at 854. Defendant argues 

that reassigning Plaintiff to a hostess position was necessary because non-pregnancy “is a 

[BFOQ] reasonably necessary to the normal operation of that particular business or 

enterprise.” (Resp. at 8 (quoting 42 U.S.C. § 2000e-2(e)).) To qualify for the BFOQ 

defense, Defendant must prove that 1) specific job qualifications of a server justifying the 

discrimination are necessary to the essence of its business, and 2) sex is a legitimate 

proxy for the qualification because nearly all visibly pregnant servers lack the 

qualification or it is highly impractical to individually test servers to insure that they have 

the necessary qualification. See Boeing Co., 843 F.2d at 1214. 

 Regarding the first prong of the BFOQ test, Defendant asserts that a prerequisite 

for the sushi server position is the ability to carry heavy plates in close proximity to sharp 

sushi knives in a crowded area where a server may get bumped or fall. (Resp. at 8.) 

Defendant cites to specific testimony in the record that could lead a factfinder to agree. 

(DSOF ¶¶ 5, 22, 29, 35.) Therefore, the Court finds that Defendant has raised a triable 

issue of fact that ability to work under certain conditions at the restaurant is reasonably 

necessary to the essence of its business. 

 However, regarding the second prong, the Court finds that Defendant has not 

shown any evidence that nearly all visibly pregnant women lack the ability to work in the 

conditions required by the server position or that it is impracticable to insure employees 

are qualified through individual testing. In its brief, but not its statement of facts, 

Defendant cites broad, scientific studies regarding trauma during pregnancy to argue that 

all pregnant women must be reassigned because it is impracticable to test on a case-byCase 2:15-cv-02066-JJT Document 81 Filed 03/27/17 Page 8 of 12
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case basis whether Plaintiff could handle trauma to her stomach. (Resp. at 8.) This 

argument and the supporting evidence are unpersuasive because Defendant presumes that 

servers are likely to experience trauma to the stomach that is severe enough to harm a 

fetus or a pregnant employee. Defendant proffers no evidence to support this 

presumption, such as expert testimony regarding the risk of fetal injury at the restaurant 

or evidence of previous injuries to servers. Defendant’s argument is solely based on a 

barebones speculation of danger. Even if Defendant had supported this argument with 

evidence, Defendant’s reasoning is explicitly rejected by the Ninth Circuit Court of 

Appeals and the United States Supreme Court. 

 Concerns for the safety of an unborn fetus, even if such concerns are well-founded 

and altruistic, are not sufficient to establish sex as a BFOQ. For example, in Johnson 

Controls, a battery manufacturer barred all women, except those whose infertility was 

medically documented, from jobs involving actual or potential lead exposure exceeding 

the Occupational Safety and Health Administration (“OSHA”) standard. 499 U.S. at 191–

97. The Supreme Court held that the company’s fetal-protection policy is sex 

discrimination forbidden under Title VII and that sex was not a BFOQ in that case. Id. at 

200, 206. The Court reasoned that “moral and ethical concerns about the welfare of the 

next generation do not suffice to establish a BFOQ.” Id. at 206. Instead, the PDA 

mandates that decisions about the welfare of future children be left to parents, not 

employers. Id. at 206–207. 

 Sex can be a BFOQ in very limited situations. The Supreme Court held that an 

employer’s concerns for the physical safety of its clientele may qualify sex as a BFOQ. 

See Dothard v. Rawlinson, 433 U.S. 321, 334–35 (1977) (reasoning that employing 

women as prison guards—in a maximum-security prison where an estimated 20% of the 

male prisoners were sex offenders scattered throughout the prison’s dormitory facility—

could pose a threat to the basic control of the penitentiary and the protection of the 

inmates and other security personnel). However, courts can only consider the safety of 

third parties in the BFOQ analysis if those third parties are indispensable to the “essence 

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of the business.” Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 420–21 (1985); see 

also Johnson Controls, 499 U.S. at 203–204 (rejecting the company’s BFOQ defense in 

regards to a policy that excludes pregnant workers, in part, because fetuses are not 

customers or third parties whose safety is essential to the company’s business). 

 Additionally, arbitrary stereotypes about the physical capabilities of women 

generally attributable to the group cannot be used to establish sex as a BFOQ. For 

example, in Rosenfeld v. Southern Pacific Co., a female employee sued a telephone 

company for its policy of excluding women from certain physically demanding positions 

that the company deemed women incapable of performing. 444 F.2d 1219, 1229 (9th Cir. 

1971). The court held that the telephone company’s policy is not excusable under the 

BFOQ defense. Id. at 1227. The court reasoned that the company’s policy was based on 

“a general assumption regarding the physical capabilities of female employees” and that 

“the company attempts to raise a commonly accepted characterization of women as the 

‘weaker sex’ to the level of a BFOQ.” Id. at 1224. Instead, employees can only be 

excluded upon a showing of individual incapacity. Id. at 1225; see also EEOC v. Spokane 

Concrete Products, Inc., 534 F. Supp. 518, 524 (9th Cir. 1982) (holding that sex was not 

a BFOQ for a truck driver position because the employer’s decision to exclude women 

relied solely on myths and purely habitual assumptions about the physical differences 

between men and women). 

 The Court agrees with Plaintiff that it is undisputed that non-pregnancy in this 

case is not a BFOQ. First, there is no evidence that Plaintiff’s pregnancy created a risk to 

customers. See Dothard, 433 U.S. at 334–35. Second, the only third-party whose safety 

Defendant is concerned about is Plaintiff’s fetus, which is not an indispensable party to 

the essence of Defendant’s business. See Johnson Controls, 499 U.S. at 203–204; 

Western Air Lines, Inc., 472 U.S. at 420–21. Third, Defendant’s reason for reassigning 

Plaintiff—concerns about the safety of her fetus—is explicitly rejected by Johnson 

Controls. 499 U.S. at 206. Fourth, Defendant’s statements about the weight of plates, 

sharp knives, and other conditions in the restaurant that Defendant sees as inappropriate 

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for a pregnant server are arbitrary stereotypes about the physical capabilities of pregnant 

women that are insufficient to establish a BFOQ. See Rosenfeld, 444 F.2d at 1224. 

Defendant can only exclude upon a showing of individual incapacity instead of based on 

habitual assumptions about all pregnant workers. See id. at 1225. 

 Unlike cases involving prisoners and dangers to customers where a BFOQ defense 

might be colorable, the present situation is exactly the type of case that Title VII guards 

against. For example, in EEOC v. Red Baron Steak Houses, No. C–86–5522 CAL, 1988 

WL 168582, at *1, (N.D. Cal. Jun. 3, 1988), a plaintiff became pregnant while employed 

as a waitress at a restaurant. The restaurant manager reduced the plaintiff’s work hours 

and told her that “it doesn’t look right” to have someone pregnant waiting on tables. Id.

During the EEOC investigation, the restaurant conceded that it had a policy of trying to 

find other positions for pregnant employees out of fear that they might suffer an injury 

while performing their waitress duties. Id. The court granted the plaintiff’s summary 

judgment motion on the issue of Title VII discrimination. Id. at *2. The court reasoned 

that the defendant’s admission that it reduced the plaintiff’s hours in the best interests of 

the mother and child is a per se violation of Title VII because there is no evidence that 

the plaintiff was not fully capable of performing her duties. Id.; see also Schneider v. Jax 

Shack, Inc., 794 F.2d 383, 384–85 (8th Cir. 1986) (holding that a plaintiff bartender 

established a prima facie case of discrimination under Title VII where the employer 

forbade her from working behind the bar while pregnant because of job hazards such as 

heavy lifting and walking on wet, slippery floors, that might threaten her pregnancy). 

 Overall, Plaintiff has indisputably established through direct evidence that 

Defendant has a workplace policy that discriminates against pregnant women, a protected 

class under Title VII as modified by the PDA, and the discriminatory policy is not 

excused by a BFOQ. Accordingly, the Court will grant Plaintiff’s Motion for Summary 

Judgment as to Defendant’s liability for sex discrimination in violation of Title VII 

(Count 1). 

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 B. Gender Discrimination under the Arizona Civil Rights Act 

 Plaintiff next moves for summary judgment on Defendant’s liability for her claim 

of gender discrimination in violation of ACRA, A.R.S. § 41-1463(B). (Mot. Summ. J. at 

6–17.) 

1. Legal Standard 

Under ACRA, an employer cannot discharge or discriminate against any 

individual based on sex. A.R.S. § 41-1463(B). ACRA is generally identical to Title VII, 

and thus federal Title VII case law is persuasive in interpreting the ACRA. Bodett v. 

CoxCom, Inc., 366 F.3d 736, 742 (9th Cir. 2004); see also Vitto v. Cent. Parking Corp., 

103 F. App’x 202, 203 n.1 (9th Cir. 2004) (“We hold that Vitto’s claim under the ACRA 

fails for the same reasons as his claim fails under Title VII.”). 

2. Analysis 

The Court will grant Plaintiff’s Motion for Summary Judgment under ACRA 

(Count 2) for the same reasons it will grant Plaintiff’s Motion under Title VII. 

IT IS THEREFORE ORDERED granting Plaintiff’s Motion for Summary 

Judgment (Doc. 70) on the issue of Defendant’s liability. 

IT IS FURTHER ORDERED that this matter will proceed for a determination of 

damages. 

 Dated this 27th day of March, 2017. 

Honorable John J. Tuchi

United States District Judge 

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