Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding, D.C. No. CV-05-01125-KJD/GWF.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
Argued and Submitted April 16, 2009 -- San Francisco, California
Before: Andrew J. Kleinfeld, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.
This is a sexual harassment case in which a male employee was the victim of a female co-worker.
The district court granted summary judgment against the plaintiff, so we recite the facts in accord with the cognizable evidence presented by the plaintiff, to determine whether, if a jury accepted his account, he could recover.*fn1 We review summary judgment de novo.*fn2
The plaintiff, Rudolpho Lamas, and the alleged harasser, Sylvia Munoz, worked for Prospect Airport Services, Inc. They worked at McCarran International Airport in Las Vegas helping passengers who needed wheelchairs. Lamas was promoted from "passenger service assistant" to "lead passenger service assistant."*fn3 His wife died September 17, 2001, so at the times relevant to this case he was a recent widower.*fn4 He started working for Prospect the next spring, in April 2002.*fn5
That fall, a married co-worker, Sylvia Munoz, began a series of rejected sexual overtures. Although Lamas had never asked her out or otherwise made overtures to her, she handed him love notes and made remarks to him that "hurt" him and were "embarrassing."*fn6 "And she was insistent and it bothered me."*fn7 When he asked her why she thought he was interested, she said she had heard from another co-worker that he missed coming home to a family. The context had been that he was still in mourning about his wife, but Munoz thought it meant he was looking for female companionship. In his deposition, he cried as he recounted this.*fn8 She said that he had once mentioned as they passed in a Jetway that he was single, she had asked her husband if that meant he was flirting with her, and her husband said that it did.*fn9 She subsequently wrote and hand-delivered a note to him that he interpreted as a "flirtatious come-on."*fn10 It was the first of three or four notes.
The first note, which Munoz handed to Lamas around midto-late November, said she was "turned on" and wanted to "go out."*fn11 Lamas interpreted it as a "basic flirtatious come-on" and an "unwanted flirtatious advance" and told her he was not interested.*fn12 She asked "why not?" and he replied that he just was not interested.*fn13
Lamas was bothered by the note, so he informed their boss, Assistant General Manager Patrick O'Neill.*fn14 O'Neill advised Lamas to tell Munoz that the romantic interest was not mutual and that Lamas should let Prospect's managers know if she kept it up, so that they could take care of it.*fn15 Lamas did not want to make a complaint against Munoz, he just wanted the overtures to stop.*fn16
Taking O'Neill's advice, Lamas told Munoz:
I'm not interested. You're married. And I don't want to get involved in something like that. And, you know, I'm just not looking for any kind of thing like that right now. So I wouldn't be interested in it. But, you know, I read the note. . . . I read it. But I'm not interested.*fn17
Lamas did not feel his work environment had become abusive at that point, he just did not want to have a relationship with her.*fn18
But she did not stop. A few days later, Munoz handed Lamas a second note saying she was serious and he should give her a chance.*fn19 He still did not feel his work environment had become abusive, he just did not want a relationship with her and wanted her to stop. He read and discarded the note.*fn20
But she did not stop. Munoz approached Lamas in the parking lot and handed him a picture of herself, "a head and shoulders-type shot with a pressing together of the breasts . . . . no clothing on that portion . . . . the cleavage of the breasts sort of together."*fn21 He gave the picture back to her, and was "irritated. She was bothering me, pestering me."*fn22 He told her "I've told you already, I'm not interested."*fn23 Lamas told a friend that Munoz's advances were "weight on my shoulders," and "just terrible."*fn24
Lamas then went to his immediate boss, Ronda Thompson, about the problem. He "wanted her to follow the company procedure to put a stop to it."*fn25 He told his boss that Munoz "was making these unwanted advances," things were "out of hand," and the harassment was hurtful.*fn26 Thompson told him that she would talk to Munoz and would inform Prospect's general manager, ...