                         NOTICE: NOT FOR PUBLICATION.
        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                  YOLANDA MANZO, Plaintiff/Appellant,

                                        v.

BRUCE M. HAYMAN, an individual, and BONNIE HAYMAN, his wife;
 BRUCE M. HAYMAN, PLLC, an Arizona professional limited liability
              corporation, Defendants/Appellees.

                             No. 1 CA-CV 14-0073
                               FILED 1-27-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-018099
             The Honorable Sally Schneider Duncan, Judge

                                  AFFIRMED


                                   COUNSEL

Jaburg & Wilk PC, Phoenix
By Kraig J. Marton and Jeffrey A. Silence
Counsel for Plaintiff/Appellant

Robaina & Kresin PLLC, Phoenix
By Edmundo P. Robaina and Samuel R. Randall
Counsel for Defendants/Appellees
                          MANZO v. HAYMAN
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1            Yolanda Manzo appeals the court’s grant of summary
judgment in favor of her employer Bruce Hayman. For the reasons that
follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Manzo was hired as an office manager for Bruce M. Hayman,
PLLC, (the “Hayman Law Firm”) in September 2011. She resigned from
her employment at the firm a few months later, on November 28, 2011.
During her short term of employment, Hayman, the sole attorney in the
firm, and his colleague F. Aguirre, would make sexual remarks about
female clients in Manzo’s presence. In addition, Hayman would sometimes
ask Manzo if she thought the clients were “pretty.” These comments were
not made often, perhaps only “a couple of times,” and Manzo did not pay
attention to them.

¶3          On October 23, 2011, Manzo received the following email
from Aguirre:

      pleaee [sic] forward to Yolanda [Manzo]. I don’t know her e-
      mail address and just got her phone number. Should have
      gotten all that while Ii [sic] was f**king her on your desk. Did
      your disk [sic] smell like pu**y?

Hayman originally sent the email to F. Aguirre asking him to forward a
business-related email trail to Manzo.        Although the cover email
referencing Manzo was not intended to be forwarded to her, F. Aguirre
inadvertently forwarded the entire email to Manzo. Manzo was shocked
by the email, but she did not confront Hayman about it because he was her
employer. Rather, she continued to work at the firm until F. Aguirre angrily
confronted her about her job performance during a hectic day at the office.
Following F. Aguirre’s outburst, Manzo turned in her resignation letter on
November 28, 2011. In the letter she stated that the working conditions at



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                           Decision of the Court

the firm were unsatisfactory and she attached a copy of the October 23
email.

¶4            Manzo later sued the Hayman Law Firm and Hayman
individually for sexual harassment under the Arizona Civil Rights Act
(“ACRA”), for false light invasion of privacy, and for intentional infliction
of emotional distress. Hayman moved for summary judgment on all of
Manzo’s claims. Hayman argued Manzo’s claims should be dismissed
because she could not establish (1) the discriminatory conduct was severe
and pervasive, (2) the October 23, 2011 email was made public, and (3) that
she suffered severe emotional distress. In granting Hayman’s motion for
summary judgment, the court found that the ACRA did not apply to
Hayman as an individual. Additionally, the court determined that Manzo’s
claim that she was constructively discharged was both untimely and lacked
sufficient supporting evidence to create a triable issue of fact. Manzo timely
appealed.1

                               DISCUSSION

I.     Standard of Review

¶5             Summary judgment is appropriate “if no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter
of law.” Wells Fargo Bank v. Ariz. Laborers, 201 Ariz. 474, 482, ¶ 14, 38 P.3d
12, 20 (2002). If a plaintiff cannot support each essential element of a claim,
summary judgment must be granted. See Gurr v. Willcutt, 146 Ariz. 575,
581, 707 P.2d 979, 985 (App. 1985); see also Schiele v. Charles Vogel Mfg. Co.,
787 F.Supp. 1541, 1546 (D. Minn. 1992) (stating that “a complete failure of
proof regarding an essential element necessarily renders all other facts
immaterial”). “In reviewing a trial court’s grant of summary judgment, we
view the facts in the light most favorable to the party opposing entry of the
judgment.” Lewis v. Debord, 236 Ariz. 57, 59, ¶ 2, 335 P.3d 1136, 1138 (App.
2014).

II.    ACRA Sexual Harassment Claim

¶6           Manzo alleged that Hayman created a hostile work
environment in violation of the ACRA, Arizona Revised Statutes (“A.R.S.”)
section 41-1463(B)(1). “To make a prima facie case of a hostile work
environment, a person must show ‘that: (1) she was subjected to verbal or

1      On appeal, Manzo does not challenge the trial court’s determination
that Hayman cannot be sued individually under the ACRA or the dismissal
of her false light claim.


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                            MANZO v. HAYMAN
                            Decision of the Court

physical conduct of a sexual nature, (2) this conduct was unwelcome, and
(3) the conduct was sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment.’”
Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting
Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)); see also Higdon v.
Evergreen Int’l Airlines, Inc., 138 Ariz. 163, 166 n.3, 673 P.2d 907, 910 n.3
(1983) (stating that federal Title VII case law is persuasive in the
interpretation of the ACRA).

¶7               “’[T]he working environment must both subjectively and
objectively be perceived as abusive.’” Craig, 496 F.3d at 1055 (quoting
Fuller, 47 F.3d at 1527). We examine “the totality of the circumstances and
whether a reasonable person with the same characteristics as the victim
would perceive the workplace as hostile.” Id.; see also Brooks v. City of San
Mateo, 229 F.3d 917, 923–24 (9th Cir. 2000). In doing so we consider “the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). The “standards for judging hostility
are sufficiently demanding to ensure that [the ACRA] does not become a
‘general civility code.’” Faragher, 524 U.S. at 788. As a result, isolated
incidents, unless extremely serious, will not amount to discriminatory
changes in the “terms and conditions of employment.” Id.

¶8           Viewing the record before us in the light most favorable to
Manzo, we conclude there are insufficient facts to show that Hayman
engaged in severe or pervasive conduct creating a hostile working
environment.

¶9             Manzo’s harassment claim is based on (1) a few isolated
comments Hayman and F. Aguirre made regarding female clients and the
size of their breasts, (2) whether Manzo thought certain women who came
into the office were pretty, and (3) the October 23, 2011 email. Manzo
argues “[t]he offensive e-mail in conjunction with the pervasive sexual
comments resulted in a sexually hostile work environment, which forced
[her] to constructively discharge [her] employment on November 28, 2011.”

¶10           “A mere utterance of an . . . epithet which engenders
offensive feelings in an employee . . . does not sufficiently affect the
conditions of employment.” Smith v. ITT Corp., 918 F.Supp. 304, 308 (D.
Ariz. 1995) (quoting Harris, 510 U.S. 21). Hayman’s comments about other
women in Manzo’s presence are not sufficiently severe to implicate the


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                          MANZO v. HAYMAN
                          Decision of the Court

ACRA.       Although unprofessional and inappropriate, they are the
unfortunate, yet “’ordinary, tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional
teasing.’” Faragher, 524 U.S. at 788 (quoting B. Lindemann & D. Kadue,
Sexual Harassment in Employment Law 175 (1992)). Similarly, discussing
whether Manzo thought other women were pretty is not conduct
sufficiently severe so that a reasonable person would perceive the
workplace as hostile. See Craig, 496 F.3d at 1055.

¶11            Manzo has also not shown that the sexual comments were
pervasive during the term of her employment. See Faragher, 524 U.S. at 787–
88 (stating that courts will consider, among other factors, the frequency of
the conduct). Manzo conceded during the ACRA investigation that
comments were only made “a couple of times,” and that when they were
made, she did not pay attention to them. Apart from the email, Manzo does
not address any specific comments made by Hayman or F. Aguirre in her
affidavit; Manzo only vaguely alleges that Hayman’s “harassing and
discriminatory conduct affected [her] ability to do [her] job.” Manzo’s
deposition testimony is equally vague concerning the frequency and nature
of the sexual comments. Manzo testified that on one occasion while she
was walking out of work with Hayman he stated that now that he was older
he didn’t “have a sexual life right now” with his wife.

¶12           The allegations made by K. Aguirre, Manzo’s co-worker, also
do not show that sexual comments were pervasive while Manzo was
working in the office. K. Aguirre stated during the ACRA investigation that
Hayman would compare her and her sister’s butts, and talk about breasts
and sex in the office. However, these statements do not identify when these
comments were made or who was present; thus, it is unknown if the
comments were made during Manzo’s employment or whether Manzo was
present when they were uttered. Moreover, such evidence of sexual
comments potentially made to other employees at times unrelated to
Manzo’s term of her employment is insufficient to support her sexual
harassment claim; Manzo must show that the severe and pervasive conduct
altered her working environment. See Craig, 496 F.3d at 1055.

¶13           The crux of Manzo’s sexual harassment claim is the October
23, 2011 email. Manzo argues the email, taken together with the
environment of sexually inappropriate comments, is sufficiently severe and
pervasive conduct. We disagree. Although the email is crude and tasteless,
it is not conduct directed at Manzo. Hayman wrote the email to F. Aguirre
who then inadvertently forwarded it to Manzo. Hayman did not intend for



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                           Decision of the Court

Manzo to receive the email; it was a cover email to F. Aguirre directing him
to forward the underlying email to Manzo.

¶14            Finally, Manzo argues the reasonable cause determination,
standing alone, should have defeated summary judgment on her claim.
“[A] trial court may determine, under the facts of each case, whether
[reasonable cause] determinations are admissible by applying” the Arizona
Rules of Evidence. Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 335, ¶
36, 212 P.3d 17, 27 (App. 2009); see also Shotwell v. Donahoe, 207 Ariz. 287,
294, ¶ 23, 85 P.3d 1045, 1052 (2004). The trial court has discretion to consider
whether a reasonable cause determination is probative on a case-by-case
basis. Shotwell, 207 Ariz. at 294, ¶ 23, 85 P.3d at 1052. Although the court is
not bound by the ultimate findings of the reasonable cause determination,
it can consider the evidence contained in the investigation.

¶15           Here, the evidence contained in the reasonable cause
investigation is the same evidence the court considered in rendering its
decision on Manzo’s sexual harassment claim. The trial court evidently
concluded, as do we, that the ACRA record did not support Manzo’s sexual
harassment claim.

III.   Intentional Infliction of Emotional Distress Claim

¶16             Manzo also seeks damages for intentional infliction of
emotional distress (IIED). Manzo must establish (1) Hayman’s conduct was
extreme and outrageous, (2) Hayman either intended to cause the
emotional distress or recklessly disregarded the certainty that it would
result from his conduct, and (3) Manzo actually suffered severe emotional
distress as a result of Hayman’s conduct. Mintz v. Bell Atlantic Sys. Leasing
Intern., Inc., 183 Ariz. 550, 553–54, 905 P.2d 559, 562–63 (App. 1995). “[T]he
court is required to make an initial determination of the sufficiency of the
plaintiff’s case.” Midas Muffler Shop v. Ellison, 133 Ariz. 194, 197, 650 P.2d
496, 499 (App. 1982). The court must determine both whether the “acts
complained of can be considered as extreme and outrageous” and “whether
on the evidence, severe emotional distress can be found.” Id. (internal
citations omitted).

¶17           We need not reach the issue of whether Hayman’s conduct
was extreme and outrageous, because we conclude Manzo has failed to
show she suffered the requisite severe emotional harm. According to
Manzo, after receiving the email she was more stressed, uncomfortable, she
had knots in her stomach, her appetite decreased, she was nervous and
sweaty, and she was unable to sleep. Manzo stated, however, that she was



                                       6
                           MANZO v. HAYMAN
                           Decision of the Court

still able to carry out her duties. The record is limited to Manzo’s subjective
complaints; she has provided no medical reports or expert testimony to
corroborate the emotional harm she suffered as a result of Hayman’s
conduct.

¶18             Manzo was required to prove not only that she suffered
emotional distress, but that the emotional distress she suffered was severe;
based on the record before us, she has not done so. Midas, 133 Ariz. at 199,
650 P.2d at 501 (“[A] line of demarcation should be drawn between conduct
likely to cause mere ‘emotional distress’ and that causing ‘severe emotional
distress.’”); see e.g., Bodett v. CoxCom Inc., 366 F.3d 736, 747 (9th Cir. 2004)
(shock, stress, moodiness, and estrangement from friends does not
constitute severe emotional distress); Spratt v. N. Auto Corp., 958 F.Supp.
456, 461 (D. Ariz. 1996) (“crying, being stressed and upset, and having
headaches . . . is not sufficient”); Midas, 133 Ariz. at 199, 650 P.2d at 501
(crying and inability to sleep do not qualify as “severe” emotional distress).

IV.    Constructive Discharge Claim

¶19           Finally, Manzo claims that she was constructively discharged
based on Hayman’s conduct. However, Manzo did not allege constructive
discharge in her complaint. Instead, she argues her assertions of
constructive discharge contained in her supplemental disclosure statement
“relate back” to the original complaint asserting her ACRA sexual
harassment claim.

¶20           Manzo is incorrect; a supplemental disclosure statement is
not an “amended pleading” for purposes of Arizona Rule of Civil
Procedure 15(c). Compare Ariz. R. Civ. P. 8 (rule addressing pleadings), with
Ariz. R. Civ. P. 26.1 (rule addressing disclosure statements), with Ariz. R.
Civ. P. 56 (rule addressing motions for summary judgment). The
supplemental disclosure statement dated July 31, 2013, which was attached
as an exhibit to Manzo’s response to Hayman’s motion for summary
judgment, is not an amended pleading that can “relate back” to the date of
the original complaint within the meaning of the rules. Accordingly,
because Manzo resigned on November 28, 2011, and the statute of
limitations on her constructive discharge claim is one year, the court
correctly concluded her claim was untimely. See A.R.S. § 12-541(5) (stating
that claims asserting liability created by statute have a one-year statute of
limitations).




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                         Decision of the Court

                            CONCLUSION

¶21          For the reasons above, the court’s grant of summary judgment
is affirmed.




                                  :ama




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