244 F.3d 1167 (9th Cir. 2001), 99-15895, Kohler v. Inter-Tel Tech.

Docket Nº:99-15895
Citation:244 F.3d 1167
Party Name:LESLIE KOHLER,Plaintiff-Appellant, v. INTER-TEL TECHNOLOGIES,Defendant-Appellee.
Case Date:April 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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244 F.3d 1167 (9th Cir. 2001)

LESLIE KOHLER,Plaintiff-Appellant,



No. 99-15895

United States Court of Appeals, Ninth Circuit

April 11, 2001

Submission Deferred February 12, 2001 Argued February 12, 2001

Submission Deferred February 12, 2001

Submitted February 20, 2001

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Gregg Lowell McCurdy, McCurdy & Ku, Richmond, California, for the plaintiff-appellant.

Marina C. Tsatalis, Wilson, Sonsini, Goodrich & Rosati, Palo Alto, California, for the defendant appellee.

Appeal from the United States District Court for the Northern District of California Martin J. Jenkins, District Judge, Presiding. D.C. No.CV-98-00378-MJJ

Before: Arthur L. Alarcon, Alex Kozinski, and Michael Daly Hawkins, Circuit Judges.

ALARCON, Circuit Judge:

Leslie Kohler ("Kohler") appeals from the summary judgment entered in favor of defendant Inter-Tel Technologies ("Inter-Tel") dismissing her sexual harassment and retaliation claims under the California Fair Employment and Housing Act, Cal. Gov't Code SS 12900 12996 ("FEHA"). Kohler contends that the district court erred in applying the federal affirmative defense to employer liability to her state sexual harassment claims. She also contends that this court should either (1) direct the district court to dismiss her state claims without prejudice under the supplemental jurisdiction statute, or (2) find that genuine issues of material fact exist as to her FEHA quid pro quo and hostile environment claims.

We affirm because we conclude that the district court did not err in determining that the California Supreme Court will hold that an employer can assert an affirmative defense under certain circumstances to a claim that a supervisor has sexually harassed the plaintiff in violation of FEHA.


Kohler was employed as a project coordinator with InterTel from August 18, 1997, through December 19, 1997. InterTel is a single source provider of telephone, data, and network services. Kohler was responsible for programming telephone systems at customer sites and training customers on how to use the Inter-Tel telephone system. Edward Herrera ("Herrera") supervised Kohler throughout her employment with Inter-Tel. Kohler contends that starting in August 1997 and continuing throughout her four-month employment with Inter-Tel, Herrera subjected her to unwelcome sexual remarks, sexual advances, and physical contact that amounted to actionable sexual harassment.

On one occasion when Kohler and Herrera stopped at a gas station on their way to a work site, Herrera touched her forearm, saying "you don't know how hard it is for me not to grab you." She responded by ignoring him and saying that she had to get back to the site. On another occasion, Herrera and Kohler were loading equipment into Kohler's car. When she bent down over the trunk in front of him, he said, "[d]on't do that in front of me it drives me crazy."

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In the office, Herrera once asked Kohler to have a drink with him. She responded "no" and he said "okay." On another occasion, Herrera stared at Kohler's breasts and told her that he couldn't take his eyes off them. Several times Herrera told Kohler that he found her attractive. Also, Herrera once sent Kohler an "alpha-page" telling her that her short skirt would "drive clients crazy." On another day Herrera said "kiss me" in response to Kohler's question whether he was upset with her. Finally, Herrera forwarded an obscene voicemail message to several people in the office, including Kohler. The message depicted someone imitating the voice of Donald Duck making several sexual innuendos and then ejaculating. Generally, when Kohler told Herrera that his behavior made her uncomfortable, his response was to "get quiet " or "laugh it off."

Kohler estimates that she saw Herrera once a week in the office and once a month at installation sites, but says that his offensive conduct was not limited to working hours. Herrera called Kohler at home approximately ten times during August and September of 1997. During these calls he would typically initiate the conversation by discussing work and then talk about being sexually frustrated with his wife. On one occasion, he described his sexual fantasies about Kohler. Another time, Herrera said that if he could get her in a "telephone room," he would kiss her neck and ears. She replied that "it was never going to happen." He responded, "[w]e'll see." During the same conversation he said that women were unable to resist him. Kohler's general reaction to these calls was to tell Herrera that he made her uncomfortable although she admits she may have occasionally laughed and smiled while talking with him. She hung up on Herrera once.

Inter-Tel had a comprehensive antiharassment policy in effect at all relevant times. Despite her knowledge of the policy, Kohler did not report Herrera's behavior to the human resources department, or to any person in a management position at Inter-Tel.

Kohler alleges that the combination of Herrera's retaliatory and harassing behavior made the conditions at Inter-Tel "intolerable." Kohler felt that without proper assistance and training, she was not qualified to do the installation jobs alone. She contends that Herrera thus set her up to fail by withholding training and assistance. This led her to submitresumes to other employers in October and eventually resign from Inter-Tel in December.1

After her resignation, Kohler filed complaints with the Equal Employment and Opportunity Commission ("EEOC") and California's Fair Employment and Housing Commission ("FEHC").2 On February 2, 1998, Kohler filed an action against Inter-Tel seeking relief for sexual harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. SS 2000e 2000e-17 ("Title VII"), and FEHA, as well as relief for constructive discharge in violation of public policy. Before the district court rendered its decision in this matter, the United States Supreme Court issued two opinions which clarified employer liability for sexual harassment under Title VII. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that an employer is vicariously liable for a supervisor's sexual harassment, whether it falls under the category of quid pro quo or environmental harassment. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. If no tangible employment action was taken against the employee, however, the employer may raise an affirmative defense to liability by showing that (1) it exercised reasonable care to prevent and correct the harassment; and (2) that the employee unreasonably

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failed to take advantage of any preventative or corrective opportunities or otherwise failed to avoid harm. Faragher, 524 U.S. at 807808; Ellerth, 524 U.S. at 765.

On April 13, 1999, the district court granted Inter-Tel's motion for summary judgment on all of Kohler's claims. The district court held that Kohler had not suffered a tangible employment action as a result of her rejection of Herrera's sexual advances. The district court also concluded that InterTel was entitled to judgment because the undisputed facts demonstrated that it had met both prongs of the affirmative defense to a Title VII claim. The district court further determined that the affirmative defense adopted in Ellerth and Faragher applied to a workplace harassment claim under FEHA, holding that "there is no reason to assume that California courts would not follow the holdings of Ellerth and Faragher given that the policy set forth by the California Legislature supporting FEHA is the same as that supporting Title VII."

The district court dismissed Kohler's state law retaliation, discrimination, and constructive discharge claims for failure to demonstrate any triable issues of fact as to the prima facie elements of those claims. Kohler filed a timely notice of appeal. Her appeal is limited to the dismissal of her FEHA claims for sexual harassment and retaliation. We have jurisdiction over this appeal pursuant to 28 U.S.C.S 1291.


Kohler first contends that the district court abused its discretion in failing to dismiss her supplemental state law claims without prejudice in view of its dismissal of the Title VII claims.3 Kohler never moved to dismiss her supplemental claims before the district court after it granted Inter-Tel's motion for summary judgment with respect to her Title VII claims.

The supplemental jurisdiction statute provides that "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. S 1367(a). Here, it is undisputed that Kohler's federal and state law claims form a part of the same case and controversy because they are based on the same nucleus of operative facts. Therefore, the district court had the power to exercise supplemental jurisdiction over Kohler's FEHA claims. See Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1088 n.4 (9th Cir. 2000) (finding supplemental jurisdiction proper where state claims based on same factual allegations as federal claims).

Kohler does not challenge the district court's jurisdiction over her state law claims, but she contends that it should have declined to exercise its jurisdiction and, instead, it should have dismissed them without prejudice pursuant to section 1367(c)(3). "[A] federal district court with power to hear state law claims has discretion to...

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