Fielder v. Ual Corp., 98-35511

• Decision Date: 14 September 1999
• Docket Number: No. 98-35511,98-35511
• Citation: 218 F.3d 973
• Parties: (9th Cir. 2000) JOANNE FIELDER, Plaintiff-Appellant, v. UAL CORPORATION, a Delaware corporation, dba UNITED AIRLINES, DefendantAppellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 973

218 F.3d 973 (9th Cir. 2000)

JOANNE FIELDER, Plaintiff-Appellant, v. UAL CORPORATION, a Delaware corporation, dba UNITED AIRLINES, DefendantAppellee.

No. 98-35511

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted September 14, 1999--Portland, Oregon

Filed July 10, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Thad M. Guyer, Medford, OR, for the plaintiff-appellant.

Robert E. Bluth, Medford, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, John P. Cooney, Magistrate Judge, Presiding; D.C. No. CV-95-03067-JPC

Before: Ruggero J. Aldisert^*, Andrew J. Kleinfeld and William A. Fletcher, Circuit Judges.

Opinion by Judge ALDISERT; Concurrence by Judge W. FLETCHER; Dissent by Judge KLEINFELD

ALDISERT, Circuit Judge:

This appeal by Joanne Fielder from summary judgment entered by the district court, a magistrate judge presiding, presents questions of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq. Issues raised by Appellant require us to decide (1) whether conduct by non-supervisory or non-managerial fellow workers may constitute actionable retaliation by the employer, a question of first impression in this court, (2) whether her claim is barred by the 300-day statute of limitations from the date the conduct occurred, 42 U.S.C.S 2000e5(e)(1) ("[A] charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred . . . ." ), or is still viable because of a continuing policy and practice of discrimination or retaliation and (3) whether she is estopped from asserting a claim of constructive discharge because her resignation was not timely.

Appellant Fielder filed claims of sex discrimination, retaliation and constructive discharge against her employer, UAL Corporation, dba United Airlines. The court determined that her claims were barred by the statute of limitations and that she was estopped from asserting her constructive discharge claim because she did not timely resign. We disagree. We hold that Appellant has presented sufficient facts that give rise to genuine issues of material fact relating to statutory limitations in presenting her discrimination claims and the timeliness of her resignation.

The district court had federal question jurisdiction pursuant to 28 U.S.C. S 1331. The parties executed written consents for entry of final judgment by a magistrate judge. 28 U.S.C. S 636(c). This court has jurisdiction under 28 U.S.C. S 636(c)(3) (appeal from magistrate judge) and 28 U.S.C. S 1291. The appeal was timely filed under Rule 4(a), Federal Rules of Appellate Procedure.

Summary judgment is appropriate when the "admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure; see Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472 (9th Cir. 1989). We review motions for summary judgment de novo. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 1998).

I.

We must set forth in some detail the historical and narrative background of an unfortunate, if not sordid, employment relationship between Ms. Fielder and United Airlines. She began working at United Airlines in Medford, Oregon on October 23, 1978 as a permanent, part-time customer service agent ("CSA"). Her general duties included flight preparation, handling baggage, taking reservations and seating passengers. She took a furlough from 1981 until June 1984. After returning, she continued to work for almost ten years, until April 20, 1994, when she was placed on medical leave at her request.

The record indicates that Fielder had been subject to sexual harassment for a long period of time during her employment. The series of incidents commenced when her co-worker, M.C.,¹ began to sexually harass her. She testified that he would frequently touch her shoulder, back, arms or hips while on the job. As early as 1991, she told him explicitly to stop touching her and that if he continued, she would obtain legal counsel and pursue a claim against him. Id. However, he continued this offensive conduct. In one incident, he pinned her to a departure board with his back and wiggled his rear end against her. In another incident, he picked her up and, ignoring her screams, twirled her around so hard she became ill. She has assigned no particular dates to these incidents.

On February 13, 1993, while she was checking in passengers, M.C. leaned over to her and asked her to go to bed with him. He did this in front of numerous customers during one of the busiest periods of pre-flight preparation. The public nature of this act prevented her from responding or reacting. She went home immediately after checking in her passengers. That night M.C. made the last of three obscene phone calls that he had made to her home during the period from mid-1992 to February 1993. During his third call, he repeatedly asked her if she was naked and he told her he wanted to "eat" her. Five days later, Fielder reported the sexual harassment to her supervisor, Ted Bibler. Her complaint alleged unwanted touching and harassing phone calls--allegations M.C. denied when Bibler confronted him with the complaint.

A few days later, M.C. confessed to the police that he had placed the obscene phone calls, and as a result entered into a criminal diversion agreement in July 1993. After she reported him, but before the July 1993 diversion agreement, Bibler did little to protect her from M.C. Furthermore, Bibler told her not to discuss the incident with her co-workers. Conversely, M.C. was allowed to discuss the incident, and he was able to convince their co-workers that he was in the right. About once every two weeks, Fielder asked Bibler to stop both M.C.'s continuing harassment and the retaliations she was receiving from her co-workers. She alleges that Bibler did very little to assist her and refused to prevent M.C. from working her shift.² She consulted an attorney who wrote two letters on March 11, 1993 and April 7, 1993 to Bibler demanding that he not allow M.C. to bid onto Fielder's shift.³

Included in M.C.'s diversion agreement was a no-contactwith-Ms. Fielder requirement, which mandated that he could not work the same shift as Fielder. However some contact was inevitable, especially during shift changes.

Bibler gave M.C. the strongest reprimand possible short of termination--a final written warning. However, Fielder testified that Bibler was unsupportive of her during the diversion agreement, and that M.C. was allowed to bid onto her shift on a number of occasions. It was only at her insistence that he was removed. Sometimes he was not removed until the night before the shift.

Other female employees complained to Bibler about M.C.'s behavior, including a complaint about an obscene phone call. Despite other complaints about M.C.'s conduct, Fielder contends that she was ostracized for reporting him to their supervisor. Joe Rossi, a co-worker, testified that other employees shunned her. While she was working, they would often refuse to answer technical questions she raised. As a result, she was less able to adequately perform her job. Fielder testified that various other incidents occurred, including an episode where she left her coat at the office and came back the next day to find it wadded up in the corner with muddy footprints on it.

Fielder states that S.R. was particularly retaliatory towards her. He was her coordinator and the employee who acted as manager in the manager's absence. He would punish fellow employees who displeased him by withholding required job assistance. For example, two workers, a CSA and the load planner, are required to unload baggage from a plane. It was S.R.'s job as the load planner to help unload the plane. If a co-worker displeased him, he would withhold this assistance.

Fielder alleged that S.R. sexually harassed her on a number of occasions, see Plaintiff Depo. at 82, 158-159, and that S.R. made comments towards Fielder and other women employees as having "great boobs," and "I wouldn't use anyone else's cock up her." Plaintiff Depo. at 158-159. After Fielder reported S.R.'s conduct, he would withhold his plane-loading assistance. Id. at 161. S.R. also withheld job assistance for her after she put M.C. on report. Id. at 193-194.

Fielder's attorney wrote two more letters, dated June 9, 1993 and September 3, 1993, which formally informed Bibler of the retaliatory working environment that had developed towards Fielder. The letters advised Bibler of the hostile treatment and attitudes of other employees towards Fielder.⁴ He requested Bibler address the situation and stop the retaliatory conduct of the employees.

The record indicates that the retaliatory acts continued. Rossi testified that co-workers S.R., R.M., A.H. and L.P. became more hostile towards Fielder after she reported M.C.'s harassment. Rossi Depo. at 29. In August 1993, United representative Nellie Yuret held a seminar on sexual harassment at the Medford station. Fielder described employee Bill Bruce as "exploding" at the seminar and accusing her of fabricating the harassment by M.C. Immediately after the seminar, she spoke with Bibler and Yuret and requested that they approve her pending transfer request application, in which she requested a move to Portland or Seattle. Assuming that her transfer application would be granted, she put a bid on a condominium in Portland shortly after the seminar. United challenges this finding, emphasizing there was testimony that Fielder did not want to leave Medford and that she thought the situation would just continue in any city where she transferred.

A co-worker and intermediate supervisor,...