256 F.3d 864 (9th Cir. 2001), 99-35579, Nichols v. Azteca Restaurant

Docket Nº:99-35579
Citation:256 F.3d 864
Case Date:July 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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256 F.3d 864 (9th Cir. 2001)




No. 99-35579

United States Court of Appeals, Ninth Circuit

July 16, 2001

Argued and Submitted February 16, 2001

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Kathleen Phair Barnard, Schwerin Campbell Barnard, Llp, Seattle, Washington, for the plaintiffs-appellants.

Rex Darrell Berry, Davis, Grimm & Payne, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-96-10870-JDS.

Before: Stephen Reinhardt, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.

Opinion by Judge RONALD M. GOULD; Concurrence and Partial Dissent by Judge WARDLAW.

RONALD M. GOULD, Circuit Judge:

Antonio Sanchez1 brought this action against his former employer, Azteca Restaurant Enterprises, Inc., alleging, among other claims, sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and its state law counterpart, the Washington Law Against Discrimination ("WLAD"). Sanchez claimed that he was verbally harassed by some male co-workers and a supervisor because he was effeminate and did not meet their views of a male stereotype. Sanchez further asserted that he was terminated in retaliation for opposing the harassment. Following a bench trial, the district court entered judgment in favor of Azteca on all claims.

On appeal, Sanchez challenges the district court's factual findings and legal conclusions regarding the existence of a hostile work environment; Azteca's liability for the alleged harassment; and the alleged retaliatory discharge. 2 He also appeals two evidentiary rulings.

We agree with Sanchez that the behavior of his co-workers and supervisor violated Title VII and WLAD. We further agree that Azteca failed to take adequate steps to remedy the harassment. We therefore reverse the judgment of the district court with respect to Sanchez's hostile work environment claim, and remand for further proceedings consistent with our opinion. We affirm the judgment of the district

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court with respect to Sanchez's retaliation claim.


Azteca operates a chain of restaurants in Washington and Oregon. It employed Sanchez from October 1991 to July 1995. Sanchez at first worked as a host in Azteca's Burien restaurant, and later worked as a food server at the Southcenter restaurant.

Throughout his tenure at Azteca, Sanchez was subjected to a relentless campaign of insults, name-calling, and vulgarities. Male co-workers and a supervisor repeatedly referred to Sanchez in Spanish and English as "she" and "her." Male coworkers mocked Sanchez for walking and carrying his serving tray "like a woman," and taunted him in Spanish and English as, among other things, a "faggot" and a "fucking female whore." The remarks were not stray or isolated. Rather, the abuse occurred at least once a week and often several times a day.

This conduct violated company policy. Since 1989, Azteca has expressly prohibited sexual harassment and retaliation and has directed its employees to bring complaints regarding such conduct directly to the attention of the corporate office. Azteca's most recent antiharassment policy, established in 1993, states:

[A]n employee who believes that he or she has been harassed by a co-worker, supervisor or anyone acting on behalf of the company should immediately report the facts of the incident to [name omitted], Azteca EEO Officer, at the corporate office [telephone number omitted], or to _______, the "Local Contact" who is the Area Manager responsible for this restaurant. 3

Upon receipt of a complaint, Azteca's policy is to conduct a thorough investigation, the results of which are reviewed by the company's EEO Board, which is then responsible for implementing an appropriate remedy.

In addition to this policy, Azteca has a bilingual (English and Spanish) training program about sexual harassment. This training, which all employees attend when hired, and annually thereafter, defines sexual harassment and instructs employees how to report complaints.

Sanchez attended Azteca's sexual harassment training and was familiar with the company's antiharassment policy and reporting procedures. Yet he never complained to the corporate EEO officer or the area manager about the harassment he experienced, as required by the corporate policy. This is not to say, however, that Sanchez ignored the harassment. Indeed, the general manager of the Southcenter restaurant (the "Southcenter general manager") testified that Sanchez complained about being called names, and an assistant manager testified that Sanchez made similar complaints to him. Moreover, in May 1995, Sanchez reported and described the specifics of the harassment to Azteca's human resources director, Arnie Serna. Sanchez made his complaint during a meeting that had been convened to address a fight between Sanchez and a co-worker. Sanchez, Serna, and the Southcenter general manager were present. During the meeting, Sanchez told Serna that he had complained to the Southcenter general manager many times, and expressed

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concern that the harassment would continue to be ignored.

In response, Serna proposed the following solution: (1) Sanchez was to report any further harassment to the Southcenter general manager, who promised to address the issue; and (2) Serna was to follow up with "spot checks " over a twoweek period to ensure that the harassment would stop. During the four or five spot checks that followed, Serna spoke with Sanchez only once and was told that conditions were improving. Serna replied that if the situation took a turn for the worse, Sanchez should tell the Southcenter general manager or call Serna directly. Sanchez made no further complaints.

On July 29, 1995, a couple of months after his meeting with Serna, Sanchez became involved in a heated argument with an assistant manager, and walked off the job. He was fired for leaving work in the middle of his shift. A month later, Sanchez filed a charge of discrimination with the EEOC. Thereafter, he initiated this lawsuit.

Following a bench trial, the district court concluded that Sanchez had not been subjected to a hostile environment. Stating that it gave "greater credibility to the defense witnesses and their testimony," the court concluded that Sanchez's workplace had been neither objectively nor subjectively hostile, and that the alleged harassment did not take place "because of sex." The court further concluded that there had been no retaliation because Sanchez had not engaged in any protected activity and, in any event, had failed to establish a causal link between protected activity and his termination. Sanchez timely appealed.


The district court's conclusions that Sanchez failed to establish his sexual harassment and retaliation claims present mixed questions of law and fact which we review de novo. Intlekofer v. Turnage, 973 F.2d 773, 777 (9th Cir. 1992); Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir. 1988). We review the district court's factual findings for clear error, Ellison v. Brady, 924 F.2d 872, 876 (9th Cir. 1991), and will not reverse if such findings are "plausible in light of the record viewed in its entirety." United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). Where, as here, the factual findings rest on credibility determinations, we give them "even greater deference." Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985).


Under Title VII, it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex." 42 U.S.C. §§ 2000e-2(a)(1). It is by now clear that sexual harassment in the form of a hostile work environment constitutes sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); see also Schonauer v. DCR Enter., Inc., 905 P.2d 392, 399 (Wash. Ct. App. 1995).

To prevail on his hostile environment claim, Sanchez was required to establish a "pattern of ongoing and persistent harassment severe enough to alter the conditions of employment." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998) (citing Meritor, 477 U.S. at 66-67); see also Schonauer, 905 P.2d at 400. To satisfy this requirement, Sanchez needed to prove that his workplace was "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive,

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and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).4 In addition, Sanchez was required to prove that any harassment took place "because of sex." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 79 (1998); Schonauer, 905 P.2d at 400.

The district court ruled against Sanchez on each of these elements, concluding that: (1) Sanchez's...

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