Brooks v. City of San Mateo

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: KOZINSKI
• Citation: Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000)
• Decision Date: 23 October 2000
• Docket Number: No. 98-15818,98-15818
• Parties: (9th Cir. 2000) PATRICIA A. BROOKS, Plaintiff-Appellant, v. CITY OF SAN MATEO, a municipal ORDER AND corporation; SAN MATEO POLICE DEPARTMENT; JOHN STANGL, Chief of Police; STEVEN SELVAGGIO, Defendants-Appellees

Page 917

229 F.3d 917 (9th Cir. 2000)

PATRICIA A. BROOKS, Plaintiff-Appellant, v. CITY OF SAN MATEO, a municipal ORDER AND corporation; SAN MATEO POLICE DEPARTMENT; JOHN STANGL, Chief of Police; STEVEN SELVAGGIO, Defendants-Appellees.

No. 98-15818

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 14, 1999

Filed October 23, 2000

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John F. Prentice and Sheila A. Reid, Prentice & Scott, San Francisco, California, argued the cause for the plaintiff-appellant.

Nancy E. Pritikin, Littler, Mendelson, San Francisco, California, argued the cause for defendants-appellees, City of San Mateo, et al. With her on the briefs were Ronald J. Holland and Susan A.P. Woodhouse.

Alison Berry-Wilkinson, Carroll, Burdick and McDonough, San Francisco, California, argued the cause for defendant-appellee Steven Selvaggio. With her on the briefs was Kamili A. Williams.

Appeal from the United States District Court for the Northern District of California. William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-96-03753-WHO

Before: Harlington Wood, Jr.,^* Alex Kozinski and Pamela Ann Rymer, Circuit Judges.

ORDER

The opinion filed June 5, 2000, and reported at 214 F.3d 1082, is withdrawn and superseded by the attached opinion. The petition for rehearing is otherwise denied. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is denied.

OPINION

KOZINSKI , Circuit Judge:

We consider the legal implications of a single, rather unsavory, episode of workplace sexual harassment.

I

Our story begins when Patricia Brooks, a telephone dispatcher for the City of San Mateo, California, and her coworker, senior dispatcher Steven Selvaggio, manned the city's Communications Center, taking 911 calls on the evening shift. At some point during the evening, Selvaggio approached Brooks as she was taking a call. He placed his hand on her stomach and commented on its softness and sexiness. Brooks told Selvaggio to stop touching her and then forcefully pushed him away. Perhaps taking this as encouragement, Selvaggio later positioned himself behind Brooks's chair, boxing her in against the communications console as she was taking another 911 call. He forced his hand underneath her sweater and bra to fondle her bare breast. After terminating the call, Brooks removed Selvaggio's hand again and told him that he had "crossed the line." To this, Selvaggio responded "you don't have to worry about cheating [on your husband], I'll do everything." Selvaggio then approached Brooks as if he would fondle her breasts again. Fortunately, another dispatcher arrived at this time, and Selvaggio ceased his behavior. Soon thereafter Selvaggio took a break and left the building. Brooks immediately reported the incident and, the following day, the city placed Selvaggio on administrative leave pending an investigation.

This, it turned out, was not the first time Selvaggio had made improper advances to co-workers. At least two other female employees, including Pat P., another senior dispatcher, had been subjected to similar treatment from Selvaggio. However, Selvaggio's earlier victims had not reported his misconduct. Only after the city launched its investigation into Brooks's allegations did these other incidents come to light.

While Selvaggio denied any misconduct, the investigation adopted Brooks's version of events and concluded that Selvaggio had violated the city's sexual harassment policy. Selvaggio resigned after the city initiated termination proceedings against him. He later pled no contest to misdemeanor sexual assault charges and spent 120 days in jail.

Despite the city's prompt remedial action, Brooks had trouble recovering from the incident. She took a leave of absence immediately afterward and began seeing a psychologist. She returned to work six months later. According to Brooks, her work environment had changed dramatically: The male employees ostracized her and her supervisors mistreated her. Brooks alleges that she had trouble getting her desired work shift and preferred vacation dates, while other employees with less seniority got their preferences. She also alleges that the city delayed approval of her sick leave benefits, reprimanded her for conduct it overlooked in other employees¹ and gave her an unwarranted negative performance evaluation. Brooks signed the evaluation but indicated that she would appeal it. She submitted a written appeal, which expressed her view that the evaluation was intended to retaliate against her for complaining about Selvaggio's behavior. While the city was considering her appeal, Brooks left work and never returned.

Brooks obtained right to sue notices from the EEOC and the California Department of Fair Employment and Housing. She then sued the city, the Police Department and its chief, John Stangl, for sexual harassment and retaliatory discrimination in violation of Title VII of the Civil Rights Act, see 42 U.S.C. 2000e et. seq. , and the California Fair Employment and Housing Act (FEHA), see Cal. Gov. Code 12940 et. seq.² All defendants moved for summary judgment.

The district court held that Selvaggio's assault of Brooks in the Communications Center was not severe enough to give rise to a hostile work environment claim. As for Brooks's retaliation claims, the district court held that she failed to show that she had suffered any adverse employment consequences. Based on these rulings, the district court granted the summary judgment motion.

On appeal, Brooks complains that the district court erred in ruling that the sexual assault was not sufficient to create a hostile work environment. She also argues that the city is liable under FEHA and Title VII for failing to take steps to prevent Selvaggio's misconduct of which it had actual or constructive notice. Finally, Brooks claims that the district court erred in finding no adverse job action to support her retaliation claim. While Brooks argues that she was subjected to sexual discrimination under Title VII as well as FEHA, we need only assess her claim under federal law because Title VII and FEHA operate under the same guiding principles.³

II

Title VII prohibits employment discrimination based on any of its enumerated grounds: " `race, color, religion, sex, or national origin.' " Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. 2000e-2(a)(1)). Sexual harassment is a species of gender discrimination: Harassing an employee on account of sex is, conceptually, the same as refusing to hire on account of sex, or paying less for the same work, or imposing more onerous duties for the same pay. In each such case, the employer violates Title VII by offering terms and conditions to employees of one gender that are less favorable than those it offers to employees of the other gender. Sexual harassment, if committed or tolerated by the employer, becomes a new and onerous term of employment.

Sexual harassment falls into two major categories: hostile work environment and quid pro quo. See EEOC, Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6681 (Mar. 19, 1990) (hereinafter EEOC Policy Guide). A hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the job performance of those harassed. A quid pro quo claim, as the name implies, occurs when a supervisor demands sexual favors in return for a job benefit. See generally Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment Law (1992). Additionally, employees who are subject to adverse employment actions because they lodged complaints of sexual harassment can raise a retaliation claim under Title VII. See id. at 275. Brooks alleges she suffered hostile work environment harassment during her encounter with Selvaggio, and retaliation by the city when she returned from the leave of absence precipitated by the incident.

Hostile Work Environment

In order to prevail on her hostile work environment claim, Brooks must show that her "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Harris, 510 U.S. at 21 (internal quotation marks and citations omitted). "The working environment must both subjectively and objectively be perceived as abusive." Fuller v. City of Oakland , 47 F.3d 1522, 1527 (9th Cir. 1995) (citing Harris, 510 U.S. at 21-22). We use a totality of the circumstances test to determine whether a plaintiff's allegations make out a colorable claim of hostile work environment. See Harris 510 U.S. at 23. Harris lists frequency, severity and level of interference with work performance among the factors particularly relevant to the inquiry. When assessing the objective portion of a plaintiff's claim, we assume the perspective of the reasonable victim. See Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) ("[A] female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.") (foot notes and citation omitted).

Brooks claims the incident pervaded her work environment to such a degree that she required psychological help and even then was unable to successfully return to her job. She has alleged sufficient facts to support the subjective portion of her hostile work environment claim. The question remains whether her apprehension was objectively reasonable.

Because only the employer...