305 F.3d 1061 (9th Cir. 2002), 98-16924, Rene v. MGM Grand Hotel, Inc.

Docket Nº:98-16924.
Citation:305 F.3d 1061
Party Name:Medina RENE, Plaintiff-Appellant, v. MGM GRAND HOTEL, INC., Defendant-Appellee.
Case Date:September 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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305 F.3d 1061 (9th Cir. 2002)

Medina RENE, Plaintiff-Appellant,

v.

MGM GRAND HOTEL, INC., Defendant-Appellee.

No. 98-16924.

United States Court of Appeals, Ninth Circuit

September 24, 2002

Argued and Submitted En Banc Sept. 25, 2001.

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Richard Segerblom, Las Vegas, NV, for the appellant.

Elayna J. Youchah, Schreck Morris, Las Vegas, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-97-00364-PMP.

Before: SCHROEDER, Chief Judge, HUG, PREGERSON, TROTT, FERNANDEZ, T.G. NELSON, THOMAS, GRABER, W. FLETCHER, FISHER, and BERZON, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge PREGERSON; Concurrence by Judge GRABER; Concurrence by Judge FISHER; Dissent by Judge HUG.

WILLIAM A. FLETCHER, Circuit Judge.

This case presents the question of whether an employee who alleges that he was subjected to severe, pervasive, and unwelcome "physical conduct of a sexual nature" in the workplace asserts a viable claim of discrimination based on sex under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., even if that employee also alleges that the motivation for that discrimination was his sexual orientation. We would hold that an employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of

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action. It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature. We therefore would hold that the plaintiff in this case has stated a cause of action under Title VII.

I

Medina Rene, an openly gay man, appeals from the district court's grant of summary judgment in favor of his employer MGM Grand Hotel in his Title VII action alleging sexual harassment by his male coworkers and supervisor. The relevant facts are not in dispute. Rene worked for the hotel, located in Las Vegas, Nevada, from December 1993 until his termination in June 1996. He worked as a butler on the 29th floor, where his duties involved responding to the requests of the wealthy, high-profile and famous guests for whom that floor was reserved. All of the other butlers on the floor, as well as their supervisor, were also male.

Rene provided extensive evidence that, over the course of a two-year period, his supervisor and several of his fellow butlers subjected him to a hostile work environment on almost a daily basis. The harassers' conduct included whistling and blowing kisses at Rene, calling him "sweetheart" and "muneca" (Spanish for "doll"), telling crude jokes and giving sexually oriented "joke" gifts, and forcing Rene to look at pictures of naked men having sex. On "more times than [Rene said he] could possibly count," the harassment involved offensive physical conduct of a sexual nature. Rene gave deposition testimony that he was caressed and hugged and that his coworkers would "touch [his] body like they would to a woman." On numerous occasions, he said, they grabbed him in the crotch and poked their fingers in his anus through his clothing. When asked what he believed was the motivation behind this harassing behavior, Rene responded that the behavior occurred because he is gay.

On June 20, 1996, Rene filed a charge of discrimination with the Nevada Equal Rights Commission. He alleged that he "was discriminated against because of my sex, male" and indicated "I believe that my sex, male, was a factor in the adverse treatment I received." On April 13, 1997, Rene filed a complaint in federal district court, alleging that he had been unlawfully sexually harassed in violation of Title VII 1 and attaching a copy of his Nevada Equal Rights Commission charge. MGM Grand moved for summary judgment on the grounds that "claims of discrimination based on sexual orientation are not cognizable under Title VII[.]"

The district court agreed that Rene had failed to state a cognizable Title VII claim. In granting summary judgment in favor of MGM Grand, it concluded that "Title VII's prohibition of 'sex' discrimination applies only [to] discrimination on the basis of gender and is not extended to include discrimination based on sexual preference." Rene timely appealed.

II

We review a grant of summary judgment de novo. "[Our] review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c).[We] must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Delta Savings

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Bank v. United States, 265 F.3d 1017, 1021 (9th Cir. 2001) (internal citations omitted).

III

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides that "[i]t shall be an unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of . . . sex[.]" The Supreme Court made clear, more than 15 years ago, in Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), that sexual harassment violates Title VII. Rene alleged that he was sexually harassed by his male supervisor and male coworkers under the hostile work environment theory of sexual harassment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (noting "the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII's broad rule of workplace equality").

In describing the kinds of sexual harassment that can create a hostile work environment, the Court in Meritor explicitly included "physical conduct of a sexual nature." Mentor, 477 U.S. at 65, 106 S.Ct. 2399 (quoting EEOC Guidelines, 29 C.F.R. § 1604.11(a) (1985)). We have applied this holding on numerous occasions, "explain[ing] that a hostile environment exists when an employee can show (1) that he or she was subjected to . . . physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991). See also Little v. Windermere Relocation, Inc., 265 F.3d 903, 910 (9th Cir. 2001); Fielder v. UAL Corp., 218 F.3d 973, 985 (9th Cir. 2000).

It is clear that Rene has alleged physical conduct that was so severe and pervasive as to constitute an objectively abusive working environment. It is equally clear that the conduct was "of a sexual nature." Rene's tormentors did not grab his elbow or poke their fingers in his eye. They grabbed his crotch and poked their fingers in his anus.

Physical sexual assault has routinely been prohibited as sexual harassment under Title VII. A limited sampling of the reported decisions includes Henderson v. Simmons Foods, Inc., 217 F.3d 612, 616 (8th Cir. 2000) (groping and shoving broom handle in crotch); Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th Cir. 1999) (patting buttocks); Bailey v. Runyon, 167 F.3d 466, 467 (8th Cir. 1999) (grabbing crotch); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 (10th Cir. 1998) (putting mouth on breast); Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1018 (7th Cir. 1996) (grabbing breast and rubbing buttocks); Quick v. Donaldson Co., 90 F,3d 1372, 1374 (8th Cir. 1996) (grabbing and squeezing testicles and flicking groin); Varner v. Nat'l Super Markets, Inc., 94 F.3d 1209, 1211 (8th Cir. 1996) (grabbing breasts); Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 140 (4th Cir. 1996) (rubbing genitals against buttocks); Waltman v. Int'l Paper Co., 875 F.2d 468, 472 (5th Cir. 1989) (grabbing breasts and directing high pressure hose at crotch); Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1012 (8th Cir. 1988) (rubbing thighs and grabbing breasts); Bohen v. City of East Chicago, 799 F.2d 1180, 1182 (7th Cir. 1986) (pressing hands against crotch); Jones v. Wesco Invs., 846 F.2d 1154, 1155 (8th Cir. 1986) (touching breasts, pinching and patting buttocks).

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Such harassment—grabbing, poking, rubbing or mouthing areas of the body linked to sexuality—is inescapably "because of . . . sex." See Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997), vacated and remanded, 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) ("[W]e have difficulty imagining when harassment of this kind would not be, in some measure, 'because of the harassee's sex—when one's genitals are grabbed, . . . it would seem to us impossible to delink the harassment from the gender of the individual harassed."). The most extreme form of offensive physical, sexual conduct—rape—clearly violates Title VII. See Little v. Windermere Relocation, 265 F.3d at 912 ("Rape is unquestionably among the most severe forms of sexual harassment. Being raped is, at minimum, an act of discrimination based on sex."); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) ("Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee's sex.").

In granting MGM Grand's motion for summary judgment, the district court did not deny that the sexual assaults alleged by Rene were so objectively offensive that they created a hostile working environment. Rather, it...

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