Folkerson v. Circus Circus Enterprises, Inc.
| Decision Date | 21 February 1997 |
| Docket Number | No. 96-16035,96-16035 |
| Citation | 107 F.3d 754 |
| Parties | 73 Fair Empl.Prac.Cas. (BNA) 219, 69 Empl. Prac. Dec. P 44,500, 97 Cal. Daily Op. Serv. 1231, 97 Daily Journal D.A.R. 1835 Kelbi FOLKERSON, Plaintiff-Appellant, v. CIRCUS CIRCUS ENTERPRISES, INC., dba Circus Circus Hotel & Casino, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard Segerblom, Las Vegas, Nevada, for plaintiff-appellant.
Cam Ferenbach, Lionel, Sawyer & Collins, Las Vegas, Nevada, for defendant-appellee.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. CV-92-01065-PMP/LRH.
Before: BRUNETTI, FERNANDEZ, and HAWKINS, Circuit Judges.
Appellant Kelbi Folkerson filed this lawsuit alleging that she was sexually harassed by a casino patron and fired in retaliation for rejecting that harassment by her employer, Appellee Circus Circus Casinos, Inc. ("Circus Circus") in violation of Title VII. At the conclusion of discovery, the district court granted Appellee Circus Circus's motion for summary judgment on the ground that Folkerson was an independent contractor, not an employee, and therefore not protected by Title VII. Folkerson appealed that judgment to this court which reversed in a memorandum disposition. Folkerson v. Circus Circus Enterprises, Inc., No. 93-17158, 1995 WL 608432. On remand, Circus Circus filed a second motion for summary judgment on the ground that Folkerson could not prove a prima facie case of retaliation. The district court granted summary judgment and we affirm.
Kelbi Folkerson is a professional mime who performed in the guise of a life-size children's wind-up toy named "Kelbi the Living Doll." Folkerson was employed in that capacity by Circus Circus. Because Folkerson was so convincing in her character, casino patrons would often wonder whether or not she was a real person. Folkerson was concerned because some patrons would try to touch her to find out if she was human. When Folkerson discussed these concerns with her supervisor, she was told that she should call security whenever she experienced problems and was provided with a sign reading "Stop, Do Not Touch" which she wore on her back. Further, Circus Circus allowed another performer, a large man dressed in a clown costume, accompany Folkerson when she was performing. Folkerson ensured her protection further by enlisting the help of others at the casino who told her that they would call security if they saw that she was in trouble and would occasionally tell casino patrons not to touch Folkerson or other performers.
Despite these precautions, Folkerson was touched by a casino patron on November 20, 1991. According to Folkerson, a casino patron approached her and said to onlookers, "I will show you how real she really is." A woman working at a nearby car rental counter warned the patron three times not to touch the performer. Nonetheless, the patron moved toward Folkerson with open, extended arms, as though he planned to hug her. He touched her in the shoulder area, whereupon Folkerson reached up and hit the patron in the mouth. After Folkerson's supervisor reviewed a videotape of the incident, he terminated Folkerson's employment based upon his conclusion that Folkerson did not have adequate provocation to hit the patron. Folkerson alleged that she was terminated in retaliation for her opposition to and rejection of the casino patron's "sexual harassment" in violation of section 2000e-3a of Title VII. 42 U.S.C. § 2000e-3(a).
Section 2000e-3(a) makes it unlawful for an employer "to discriminate against any of [its] employees ... because [the employee] has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e-3(a). To succeed in a retaliation claim, Folkerson must demonstrate (1) that she was engaging in protected activity/opposition, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between her activity and the employment decision. Trent v. Valley Electric Ass'n, Inc., 41 F.3d 524, 526 (9th Cir.1994). Because Folkerson cannot prove the first element of a prima facie case of retaliation, summary judgment against her was proper.
Folkerson argues that she...
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...§28:9.F.3 Foley v. University of Houston, 355 F.3d 333, 340 n. 8 (5th Cir. 2003), §§17:4.C, 20:4.C Folkerson v. Circus Circus Enters. , 107 F.3d 754 (9th Cir. 1997), §§26:2.B.3, 26:2.B.4 Fonesca v. Sysco Food Servs. of Arizona, Inc. , 374 F.3d 840, 850 (9th Cir. 2004), §24:4.D.1 Fontenot v.......
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...injurious to the employer’s interests, the plaintiff may not be able to claim protection. See Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754 (9th Cir. 1997) (punching a customer was not a reasonably calibrated response to harassment, even to a physical touching); see also, Ellis, 20......
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...§28:9.F.3 Foley v. University of Houston, 355 F.3d 333, 340 n. 8 (5th Cir. 2003), §§17:4.C, 20:4.C Folkerson v. Circus Circus Enters. , 107 F.3d 754 (9th Cir. 1997), §§26:2.B.3, 26:2.B.4 Fonesca v. Sysco Food Servs. of Arizona, Inc. , 374 F.3d 840, 850 (9th Cir. 2004), §24:4.D.1 Fontenot v.......