United States District Court, N.D. California
January 14, 2003
MARY L. SMITH, Plaintiff,
COUNTY OF HUMBOLDT, Defendant
The opinion of the court was delivered by: SUSAN ILLSTON, United States District Judge.
This Court has granted defendant's motion for summary judgment as to
all claims in the complaint. Accordingly, judgment is hereby entered in
favor of defendant and against plaintiff.
IT IS SO ORDERED.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On September 28, 2001, plaintiff, Mary L. Smith, filed an employment
discrimination complaint against County of Humboldt, alleging that she
was subject to sexual harassment by her coworker Denise Grimes, shortly
after both began training for positions as Eligibility Workers for the
Humboldt County Department of Social Services. On October 4, 2002 this
Court heard argument on defendant's motion for summary judgment based on
plaintiffs failure to (1) establish a prima facie case of sexual
harassment and (2) file a timely complaint. The Court GRANTS summary
judgment for defendant based on plaintiff's failure to state a prima
facie claim of sexual harassment. Accordingly, the Court declines to
decide whether plaintiff's complaint is time-barred.
Plaintiff and the alleged harasser, Denise Grimes, began an eight week
training course for their employment as Eligibility Workers for the
Humboldt County Department of Social Services on January 8, 2001.
According to plaintiff, on January 11, 2001, Ms. Grimes initiated
unwanted contact by pushing plaintiff's head. Plaintiffs Depo. at
83:3-8. Plaintiff alleges several other incidents of offensive conduct by
Ms. Grimes including: sitting in a chair vacated by plaintiff (id. at
87:5-9); "brushing up" against plaintiff in the bathroom (id. at
89:3-5); hitting the plaintiff's cheekbone (id. at 82:8-17; id. at
30:8-10); trying to sit next to plaintiff at lunch; touching
plaintiff(id. at 83:13-19, 84:18-22); and hitting plaintiff on the
shoulder to get her attention (id. at 86:9-12).
Plaintiff complained about the harassment for the first time on January
22, 2001. That same day, her employer reprimanded the alleged harasser.
Plaintiff requested that her work station be changed on January 29,
2001. Exhibit B to the Decl. of Lorraine Davey, Deputy Director of
Employee Services for Humboldt County. That same day, plaintiff submitted
a letter entitled "Sexual Harassment Complaint" to her employer. Id. On
February 1, 2001, plaintiff submitted a letter of resignation in which
she stated, "Due to the sexual harassment incident whereby Denise Grimes
assaulted and approached me with unwelcomed conduct of a sexual nature
that has unreasonably interfered with my work performance and created an
intimidating and hostile and offensive working environment and no
satisfactory remedy has been made, I hereby submit my resignation for the
position of Eligibility Worker I (EW) trainee effective immediately."
Exhibit B to the Decl. of Lorraine Davey.
The steps taken by defendant to remedy the harassment included
admonishing the alleged harasser not to engage in any unwanted touching
of employees and reviewing sexual harassment policies with all trainees.
Polifrom Decl. 4:4-15; 4:19-26. Upon plaintiff's request, defendant
rearranged seating in the classroom to put more distance between
plaintiff and Ms. Grimes. Polifrom Decl. 5:17-26. Plaintiff does not
dispute that following these remedial measures, plaintiff did not report
another incident of harassment. Exhibit B. to Decl. of Lorraine Davey.
1. Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment shall be
granted "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 . . . since a
complete failure of proof concerning an essential
[240 F. Supp.2d 1114]
element of the
nonmoving party's case necessarily renders all other facts immaterial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also T.W.
Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th
Cir. 1987) (the nonmoving party may not rely on the pleadings but must
present significant probative evidence supporting the claim); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a dispute about a material
fact is genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.").
The court's function, however, is not to make credibility
determinations, Anderson, 477 U.S. at 249, and the inferences to be drawn
from the facts must be viewed in a light most favorable to the party
opposing the motion. T.W. Elec. Serv., 809 F.2d at 631. The court is only
required to draw those inferences that are reasonable in light of the
facts. See Tyler v. Runyon, 70 F.3d 458, 457 (7th Cir. 1995) (cited in
Tovar v. City of Alameda, 1998 U.S. Dist. Lexis 5688 (N.D.Cal.)). In
considering a summary judgment motion the Court must render summary
judgment if "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
2. Title VII
Title VII makes it unlawful for employers to discriminate on the basis
of sex with respect to the terms and conditions of employment.
42 U.S.C. § 2000e-2 (a)(1). The courts have held that discriminatory
conduct includes harassment (see e.g., Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)) when that harassment occurs because of sex. See
Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81 (1998) (stating
that Title VII only prohibits harassment which occurs because of sex,
regardless of whether the harasser is the same sex as or opposite sex
from the victim).
The courts have recognized two legal theories on which plaintiffs may
base sexual harassment claims. The first is quid pro quo harassment, or
harassment in which a supervisor requires an employee to engage in sexual
activity and threatens tangible employment actions, such as demotion,
denial of promotion, or discharge, if the employee does not comply with
the harasser's demands. The second is hostile work environment
harassment. This harassment can be perpetrated by a supervisor or
coworker. The hallmark of hostile work environment harassment is that
there is no tangible employment action which results from the
harassment. See Burlington v. Ellerth, 524 U.S. 742, 751-753 (noting that
the terms "quid pro quo" and "hostile work environment" have been used in
the courts to refer to sexual harassment and describe respectively,
harassment that is accompanied by specific harm to the victim's job and
harassment that harms an employee's job more generally, by creating a
hostile work environment).*fn1
[240 F. Supp.2d 1115]
To survive a defendant's motion for summary judgment, as a threshold
matter, a plaintiff must show that the harassment occurred because of
sex. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81
(1998). In addition to this requirement, to state a prima facie case of
hostile work environment sexual harassment a plaintiff must show that she
has experienced (1) conduct of a sexual nature (2) that is so severe or
pervasive as to alter the terms and conditions of her working environment
and (3) that the conduct is unwelcome. Harris v. Forklift Systems,
510 U.S. 17 (1993); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th
Cir. 2000); Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1990). The
plaintiff's belief that she has been subjected to a hostile and abusive
work environment must be both subjectively held and objectively
reasonable. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). See
also, Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (holding
that sexual harassment is actionable only if it is both objectively and
subjectively offensive, such that a reasonable person would find the
environment hostile or abusive and the plaintiff actually did find the
environment hostile or abusive).
Courts apply a totality of the circumstances test to the determination
of whether plaintiffs have stated a colorable claim of hostile work
environment sexual harassment. Brooks v. City of San Mateo, 229 F.3d 917,
923 (9th Cir. 2000). If the plaintiff has established a prima facie
case, and the employer has articulated a legitimate, nondiscriminatory
reason for its actions, the plaintiff must then show that the reason
stated by the employer is pretextual. Marconi v. Eldorado Resorts, LLC,
2000 US. App. Lexis 21701 (9th Cir. 2000) (quoting Sischo-Nownejad v.
Merced Community College District, 934 F.2d 1104, 1110 (9th Cir. 1991).
Title VII is also violated if an employer retaliates against an
employee for complaining about harassment. 42 U.S.C. § 2000e-3.*fn2
To state a prima facie case of retaliation a plaintiff must show: (1)
that she engaged in an activity protected under Title VII; (2) that she
was subject to an adverse employment action; and (3) there is a causal
relationship between the activity and the adverse employment action.
Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).
1. Defendant's objections to plaintiff's evidence
Defendant's reply memorandum contains numerous evidentiary objections
on which this Court declines to rule. When deciding summary judgment
motions courts may only consider evidence that is admissible. The Court
recognizes that much of plaintiff's evidence is vulnerable to objection
on grounds that it lacks relevance, has not been authenticated, and makes
conclusory allegations; however, the Court declines to rule on
defendant's objections because, even if the evidence submitted by
plaintiff is considered by this
[240 F. Supp.2d 1116]
Court, plaintiff fails to state a
colorable claim of sexual harassment.
2. Defendant's motion for summary judgment
Defendant' argues that this Court should grant summary judgment for the
following reasons: (1) plaintiff failed to file a timely complaint; (2)
the alleged conduct was not "based on sex"; (3) the alleged hostile work
environment was not "severe or pervasive and consequently, was not
actionable; and (4) defendant took sufficient corrective action in
response to plaintiffs complaint to absolve the defendant of liability.
Plaintiff's complaint alleges that she was sexually harassed by her
coworker and that the resulting deterioration in her work environment led
to her constructive discharge. Plaintiff's Brief Opposing Defendant's
Motion for Summary Judgment alleges that plaintiff was retaliated against
for complaining about the harassment. Plaintiff's Brief at 7.
Because plaintiff has not sufficiently alleged a prima facie case of
harassment in violation of Title VII, this Court must grant defendant's
motion for summary judgment. Plaintiff's complaint does not sufficiently
plead that she was subject to sexual harassment because of sex and that
the harassment was: (1) verbal or physical conduct of a sexual nature;
(2) severe or pervasive enough to alter the terms and conditions of
employment and (3) unwelcome. Dolores Marconi v. Eldorado Resorts, 2000
U.S.App. Lexis 21701. In addition to failing to adequately plead these
elements, plaintiff has failed to allege sufficient facts to establish
employer liability for the harassment. Finally, plaintiff fails to
sufficiently allege that the actions taken by her employer in response to
her sexual harassment complaint were retaliatory or that she was
constructively discharged. Because this Court grants summary judgment for
defendant based on plaintiff's failure to adequately plead sexual
harassment, the Court declines to reach defendant's argument that
plaintiffs complaint was untimely.
In her complaint and opposition to defendant's motion for summary
judgment, plaintiff also alleged two other bases of discrimination
race and age. Plaintiff's complaint, which is written on a form
provided by the Northern District courts to pro se plaintiffs, has a
checked box indicating that she alleged discrimination because of "race
or color" and lists "age" as another basis for discrimination.
Plaintiff's Complaint at 2. Plaintiff's Brief Opposing Defendant's Motion
for Summary Judgment at 7 ¶ 2 states "Plaintiff contends that
Humboldt discriminated against her because she is an African-American
(race) female over forty years old (age) and harassed her because she
because of her race (sic) and for filing written complaint opposing
discriminatory conduct (retaliation)." As plaintiff has failed to provide
any evidence at all to support these claims, summary judgment must be
granted for defendants on plaintiff's race and age claims. This Court's
discussion will therefore focus on sexual harassment as plaintiff has
provided some evidence concerning this allegation.
A. Because of sex
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) stated
that same sex sexual harassment, like opposite-sex sexual harassment, is
only actionable when that harassment is "because of sex." Id. at 81-82.
The United States Supreme Court has enumerated three circumstances in
which courts may infer that the alleged harasser's conduct toward someone
of the harasser's sex was because
[240 F. Supp.2d 1117]
of sex: (1) when proposals to engage in
sexual activity are made by the harasser and there is credible evidence
that the harasser is homosexual; (2) when the victim is treated in a
sex-specific maimer which suggests hostility toward people of the
victim's sex; or (3) when men and women are treated differently by the
harasser. Id. at 80-21.
Plaintiff does not produce any evidence to support her theory that the
harassment was because of sex. Plaintiff alleges that the harassment was
motivated by sexual desire. Plaintiff's Deposition at 131-133. However,
plaintiff has submitted no evidence to support her claim that Ms. Grimes
was motivated by sexual desire. Plaintiff admitted in her deposition that
she did not know Ms. Grimes's sexual orientation. Deposition at
132:10-12. Plaintiff asserted that she believed Ms. Grimes was a lesbian
but later stated that the basis for her belief was that Ms. Grimes "wore
her hair in a way that could have been considered a lesbian-type
hairstyle and exhibited actions that I took to be of a homosexual
nature." Id. at 132:17-21. These bald assertions, which are supported by
nothing more than Ms. Smith's speculation about lesbian fashion, are
insufficient to establish that Ms. Grimes was a lesbian or that her
actions toward Ms. Smith were motivated by sexual desire. Further, Ms.
Grimes's declaration states that she is not homosexual and was not
attracted to Ms. Smith. Declaration of Denise Grimes at 3:11-12.
Second, plaintiff does not allege that Ms. Grimes acted in a
sex-specific manner. Third, Ms. Smith introduces no evidence about Ms.
Grimes's treatment of the one man in the class, as compared to her
treatment of the women.
For the foregoing reasons, Ms. Smith has not produced sufficient
evidence to create a triable issue of fact regarding whether the
harasser's alleged conduct was "because of sex." This Court is only
required to draw those inferences which would be reasonable from the
facts alleged by plaintiff. It would not be reasonable for this Court to
infer from plaintiff's evidence that Ms. Grimes was motivated by sexual
desire to harass Ms. Smith. Therefore, this Court must grant summary
judgment to defendants. Even if the Court found that the conduct occurred
because of sex, which it has not, this Court must still grant summary
judgment because the harassment was not severe or pervasive, as will be
B. Severe or pervasive
Even if Ms. Smith had submitted sufficient facts to state a colorable
claim that the alleged conduct was because of sex, this Court would still
grant summary judgment because Ms. Smith has not established that the
harassment was arguably severe or pervasive, and therefore she has not
satisfied this element of the prima facie case as she is required to do
to maintain her hostile work environment claim. Whether the conduct is
severe or pervasive is determined in reference to the following factors:
"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."
Kortan v. California Youth Auth., 217 F.3d 1104 (9th Cir. 2000) (internal
quotations and citations omitted).
The work environment must be subjectively and objectively hostile.
Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). In Ellison the Court
noted that the standard to be applied when evaluating whether sexual
harassment is severe or pervasive is the standard of a reasonable
victim, and in the case of harassment against a woman, a reasonable
woman. Id. at 879
[240 F. Supp.2d 1118]
("We adopt the standard of a reasonable woman because
we believe that a sex-blind reasonable person standard tends to be male
biased and tends to systematically ignore the experiences of women.").
The conduct alleged by plaintiff is not sufficiently severe or
pervasive that a reasonable victim would find that it altered the terms
and conditions of her working environment. See Brooks v. City of San
Mateo, 229 F.3d 917, 923 (9th Cir. 2000). The incidents described by
plaintiff occurred during a ten day period, between January 8 and January
18 of 2001. As the Supreme Court explained in Harris v. Forklift
Systems, when harassment occurs over a short period of time it must be
extremely severe to be actionable. See also Ellison, 924 F.2d at 828 ("We
first note that the required showing of severity or seriousness of the
harassing conduct varies inversely with the pervasiveness or frequency of
the conduct."). In this case, plaintiff describes several incidents in
which the harasser's alleged conduct does not rise to the level of severe
or pervasive. Even if all of the incidents that plaintiff alleges
actually occurred*fn3, they do not rise to the "severe or pervasive"
level required for sexual harassment to be actionable. Brooks v. City of
San Mateo, 229 F.3d at 924.
In Brooks, a case in which the court found that the plaintiff had not
pled the requisite level of severity, the plaintiff alleged a single
incident, indisputably far more severe than the incidents alleged by Ms.
Smith. The Brooks plaintiff alleged that she was pushed up against a
console and had her breasts touched underneath her shirt. Brooks at 229
F.3d at 921-922. Similarly, in Crichton v. California Dep't of
Corrections the plaintiff alleged that she was kissed twice on the
cheek; these incidents were not sufficient to state a colorable claim of
hostile work environment harassment. 2001 U.S.Dist. Lexis at 12,13
(N.D.Cal. 2001). See also Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir.
1988) (holding that the plaintiff's complaint about touching was
insufficient to support her claims that a hostile work environment
existed). The handful of incidents alleged by Ms. Smith, many of which do
not involve any touching, but simply involve being spoken to or
approached, are insufficient to establish that the harassment was
objectively so severe or pervasive that it is actionable. A subjective
belief that these incidents amounted to a hostile work environment is
insufficient to establish a prima facie case.
Because the harassment alleged by Ms. Smith is not severe or
pervasive, this Court must grant summary judgment for the defendant. Even
if Ms. Smith had pled harassment sufficiently severe or pervasive to be
actionable, which she has not, this Court must grant summary judgment
because Ms. Smith has failed to establish that her former employer should
be liable for the alleged actions of her coworker, as will be explained
C. Employer liability
In hostile work environment cases in which the alleged harasser is a
[240 F. Supp.2d 1119]
coworker,, this circuit's courts apply a negligence standard which means
that an employer is liable only for harassment about which the employer
"knew or should have known."*fn4 Burrell v. Star Nursery, 170 F.3d 951,
955 (9th Cir. 1999); Ellison v. Brady, 924 F.2d at 881-882. See also
Reitter v. City of Sacramento, 87 F. Supp.2d 1040, 1044 (E.D.Cal. 2000)
(citing Burrell and stating, "Because the test for employer liability for
co-worker sexual harassment is negligence, the employer is only liable in
circumstances in which management-level employees knew or should have
known about the harassment."). Once notified that harassment occurred, an
employer's remedy should be "immediate and appropriate."
29 C.F.R. § 1604.11 (d).
In coworker harassment cases, some courts have held that the plaintiff
must plead and prove that the employer's failure to respond adequately to
harassment as part of her prima facie case. See e.g., Swinton v. Potomac
Corp., 270 F.3d 794, 803 (9th Cir. 2001).*fn5 Cf. Marconi v. Eldorado
Resorts, 2000 U.S.App. Lexis 21701 (9th Cir. 2001) (identifying the three
Harris factors as the elements of plaintiff's prima facie case, but also
noting in its decision which overturned a district court's grant of
summary judgment to defendants, that the plaintiff raised a "genuine
issue" about her employer's liability for coworker harassment by
submitting evidence that her employer knew about the harassment and
responded unreasonably). Id. at 4. Regardless of whether plaintiffs must
submit sufficient facts to establish failure to respond as part of the
prima facie case, courts have held that in coworker harassment cases,
employers can avoid liability by taking corrective action that is
"reasonably calculated to end the harassment." Harris v. Forklift
Systems, 510 U.S. 17, 32 (1993). Therefore, evidence from the employer
that such corrective action was taken should be considered in a motion
for summary judgment.
This Court declines to decide whether a plaintiff must plead and prove
an employer's failure to take corrective action as part of her prima
facie case or whether the employer has the burden to introduce evidence
that, from the time that it knew or should have known of the harassment,
it took corrective action. In either case, whether corrective action is
part of the prima facie case or part of the
[240 F. Supp.2d 1120]
employer's defense, when
deciding a motion for summary judgment in a coworker harassment case,
courts consider whether plaintiff has demonstrated sufficient evidence of
employer liability to maintain her claim. See e.g., Burrell (reviewing on
appeal a district court's grant of summary judgment in a coworker
harassment case and considering not only whether plaintiff established
that she was the victim of coworker harassment, but also whether
plaintiff established sufficient grounds for employer liability).
In this case, there is significant, unrefuted evidence that the
employer took appropriate and immediate corrective action to end the
sexual harassment alleged by plaintiff. None of the evidence submitted
suggests that prior to January 18, 2001 defendant knew or should have
known about the harassment. The plaintiff has testified that none of the
acts of alleged harassment occurred in front of a supervisor. Smith
Depo. at 89:3-13, 89:19-23. Plaintiff does not contest defendant's
statement that it was first informed by plaintiff of the harassment on
January 22, 2001 and took immediate corrective action. Decl. Polifrom
¶ 9. Plaintiff does not dispute defendant's statement that no further
incidents occurred after Ms. Grimes was reprimanded on January 22, 2001
and the entire class was instructed not to engage in sexual harassment on
January 23, 2001. Decl. of Polifrom Para 16 and Decl. of Grimes ¶
17. When Ms. Smith requested that her work station be moved on January
29, 2001, it was immediately moved. Polifrom ¶ 17. See also Decl. of
Lorraine Davey, Deputy Director of Employee Services for Humboldt County
at 2:5-10. Notably, the employer took care to move several employees at
once to avoid singling out plaintiff. Plaintiff was commended for
bringing the harassment to her supervisor's attention. Id at 2:16-18.
Particularly in light of the de minimis nature of the harassment
alleged, defendant's efforts to remedy the harassment were reasonable.
The remedy which employers choose must be one that is "reasonably
calculated to end the harassment." Harris v. Forklift Systems, 510 U.S. 17,
32 (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983) ("[T]he
reasonableness of an employer's remedy will depend on its ability to stop
the harassment."). Id. In this case, following the employer's corrective
action, it is undisputed that there were no further incidents. Ms. Smith
never complained again until the day prior to her resignation. Arguably,
if Ms. Smith had put her employer on notice that she was dissatisfied
with the remedy, that might have triggered a reexamination of its
adequacy. Conversely, her failure to do so, coupled with the other
factors listed above, suggests that the employer's corrective action was
adequate to the circumstances. In response to plaintiff's complaint,
defendant has submitted sufficient facts to show that it took reasonable
In coworker hostile work environment cases such corrective action is
sufficient to absolve the employer of liability. Plaintiff has submitted
no evidence to rebut these facts. There is no genuine issue of material
fact which could lead a trier of fact to find that plaintiff's employer
is liable for the actions of her coworker. Therefore, this Court must
grant summary judgment for the defendant.
D. Constructive discharge
Plaintiff states in her complaint that the alleged sexual harassment
"created a hostile work environment leading to my being forced to leave
work by way of constructive dismissal." Plaintiff's Complaint at 3
¶ 6. Presumably, plaintiff is alleging a constructive discharge
theory. Constructive discharge occurs when
[240 F. Supp.2d 1121]
working conditions have
deteriorated so significantly that the working environment has become "so
intolerable and discriminatory as to justify a reasonable employee's
decision [to leave].'" Brooks v. City of San Mateo, 229 F.3d 917, 931
(9th Cir. 2000) (quoting Watson v. Nationwide Ins. Co., 823 F.2d 360 (9th
Although constructive discharge is usually a jury question (Brooks, 229
F.3d at 932), this Court finds that plaintiff has not adduced sufficient
facts to permit a reasonable trier of fact to find that the work
environment was so abusive and hostile that plaintiff was forced to
leave. Having found that the harassment alleged by plaintiff was not
severe or pervasive, the Court also finds that the harassment was not
severe enough to justify a reasonably employee's decision to leave her
job. This Court grants summary judgment on plaintiff's constructive
In plaintiff's opposition to defendant's summary judgment motion,
plaintiff alleges that she was retaliated against by her employer for
complaining about harassment. "Plaintiff contends that Humboldt
discriminated against her . . . for filing a written complaint opposing
discriminatory conduct (retaliation)." Plaintiff's Brief Opposing
Defendant's Summary Judgment at 7. Plaintiff did not allege retaliation
in her complaint, and has not amended her complaint. In a summary
judgment motion, the Court is limited to a consideration of the legal
theories advanced by plaintiff in her complaint. Nonetheless, even if
plaintiff had properly amended her complaint to include retaliation, the
Court would grant summary judgment on this claim as well.
Plaintiff has failed to establish a prima facie case of retaliation. A
prima facie case of retaliation requires plaintiffs to adduce facts to
support the following claims: (1) that the plaintiff engaged in protected
activity; (2) that an adverse employment action occurred; and (3) that
there was a connection between the adverse employment action and the
protected activity. Folkerson v. Circus Enters., Inc., 107 F.3d 754, 755
(9th Cir. 1997); Gonzalez v. Rubin, 1997 U.S.App.Lexis 25174, 2-3 (9th
Cir. 1997). If the plaintiff succeeds in establishing a prima facie
case, the defendant must then state a legitimate, nondiscriminatory
reason for its actions. McDonnald Douglas Corp. v. Green, 411 U.S. 792
and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253
It is undisputed that when plaintiff complained about sexual harassment
to her supervisor she engaged in protected activity, regardless of
whether the harassment occurred. However, the facts alleged by plaintiff
that she was reassigned to a desk near the door, that she was
made to look on with a coworker, and asked to operate a light switch
are insufficient to establish that an adverse employment action
was taken against her.
Even if plaintiff's factual allegations were sufficient to establish a
prima facie case of retaliation, defendant has rebutted that prima facie
case through the nondiscriminatory reasons that it has stated for its
actions; namely, that the desk reassignment put the furthest possible
distance between defendant and plaintiff, and that plaintiff was asked to
look on with a coworker because she did not understand the assignment.
See Decl. of Mary A.
[240 F. Supp.2d 1122]
Polifrom at 5:17-25 ("I moved Ms. Smith and some
other trainees to new desks. I felt that the workstation in the front
corner of the room was the station where Ms. Smith would have minimal
contact with Ms. Grimes, so I assigned her to this new workstation. There
was a door at the front of the classroom, which provided exit from the
classroom, without requiring Ms. Smith to pass the workstation where Ms.
Grimes was assigned. Additionally, Denise Grimes was assigned to a
workstation in the back of the room, and the back of the training room
had a door that provided a convenient exit for Ms. Grimes.").
Plaintiff has failed to provide any evidence to show that defendant's
stated reasons are pretext. Therefore, summary judgment is granted to
defendant on plaintiff's retaliation claim.
For the reasons stated above, this Court GRANTS defendant's motion for
summary judgment. [docket #36]
IT IS SO ORDERED.