Fried v. Wynn Las Vegas, LLC

• Decision Date: 18 November 2021
• Docket Number: No. 20-15710,20-15710
• Citation: 18 F.4th 643
• Parties: Vincent FRIED, Plaintiff-Appellant, v. WYNN LAS VEGAS, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 643

Vincent FRIED, Plaintiff-Appellant,

v.WYNN LAS VEGAS, LLC, Defendant-Appellee.

No. 20-15710

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2021 Seattle, Washington

Filed November 18, 2021

Michael P. Balaban (argued), Law Offices of Michael P. Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.

Jen J. Sarafina (argued) and Dare E. Heisterman, Kamer Zucker Abbott, Las Vegas, Nevada, for Defendant-Appellee.

Before: Morgan Christen and Mark J. Bennett, Circuit Judges, and Roslyn O. Silver,^* District Judge.

CHRISTEN, Circuit Judge

Vincent Fried appeals the district court's order granting summary judgment to Wynn Las Vegas (Wynn) on Fried's claim for hostile work environment in violation of Title VII of the Civil Rights Act of 1964.¹ Because a reasonable factfinder could decide that Fried's employer created a hostile work environment, we reverse the district court's judgment and remand.

I

Fried worked as a manicurist at a salon in the Wynn Hotel in Las Vegas, Nevada, from April 2005 to July 2017. His performance reviews show that he met or exceeded expectations, and Fried received eight certificates of merit based on positive comments from guests, extraordinary performance, or otherwise "going above and beyond."

Fried alleges that he complained to management about female manicurists receiving most of the appointments, and that other male manicurists complained about this as well.² Though appointments were generally allocated to manicurists based on a system Fried designed to balance the assignments, Fried testified that his female coworkers received more appointments, due in part to customers specifically requesting female manicurists.

On one occasion in March 2017, Fried became frustrated and threw a pencil at a computer because customers were requesting female manicurists more often than male manicurists. Fried alleges that a manager at the salon, Sarah Barajas, disciplined him for throwing the pencil and commented that he might want to do something else for work. According to Fried, Barajas remarked that Fried was working in a "female job related environment" and suggested that he look for other employment in the culinary field. On another occasion a female coworker told Fried and another male manicurist that if they wanted to get more clients, they should wear wigs to look like women. Fried alleges that his coworkers made similar comments to him on other occasions, and his male coworkers agreed that they were subjected to similar remarks.

In June 2017, a male customer came into the salon for a pedicure and Fried was assigned to provide the service. The customer asked Fried to give him a massage in the customer's hotel room and said he had massage oil. When Fried responded, "we don't do that kind of service," the customer made an explicit sexual proposition, asking if Fried wanted to have sex and "rub[ ] [the customer's] penis." The customer told Fried "it [is] wonderful to have sex with another man."

Fried immediately went to the salon's front desk, reported the customer's conduct to Barajas, and stated that he no longer felt comfortable interacting with the customer. According to Fried, Barajas directed him to "just go [finish the pedicure] and get it over with." Fried complied, but testified that he felt "absolutely horrible" and "uncomfortable" during the twenty or so minutes it took to finish the customer's pedicure. In total, the customer made five or six inappropriate sexual references to Fried during the thirty-five-to forty-five-minute pedicure, and grabbed or held Fried's hand or arm for about a minute when Fried escorted the customer out of the salon after completing the pedicure. The customer did not otherwise touch Fried.

Fried confronted Barajas after the customer left and told her that they needed to discuss what had happened. Barajas responded that she was busy dealing with emails but would talk to him "when she got a chance." When Fried followed up later that day, Barajas again told him that she had a lot of emails to review and asked to discuss the incident another time. Fried told Barajas that he would report the incident to the hotel's human resources department, but he did not do so, and there is no evidence that Fried and Barajas ever discussed the incident again.

About one week later, Fried was in the salon's breakroom and asked his coworkers whether Barajas was on duty because he still wanted to speak with her about the customer who had propositioned him. A female coworker told Fried he should not be upset about the incident and should instead take it as a compliment. When Fried responded that he was not happy with that remark, another female coworker allegedly said, "shut up Vincent, you know you want sex from [the customer], you keep mentioning it."

On April 16, 2018, Fried filed suit against Wynn in the United States District Court for the District of Nevada. His complaint included claims pursuant to Title VII, 42 U.S.C. § 2000e et seq. , for sex discrimination, retaliation, and hostile work environment. Wynn moved for summary judgment, and the court dismissed Fried's claims and entered final judgment in Wynn's favor. Fried timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the dismissal of Fried's sex-discrimination and retaliation claims in a concurrently filed memorandum disposition, but we reverse the dismissal of Fried's hostile work environment claim.

II

We review de novo the district court's order granting summary judgment. Branch Banking & Tr. Co. v. D.M.S.I., LLC , 871 F.3d 751, 759 (9th Cir. 2017). We view the evidence in the light most favorable to Fried and determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. of Med. , 363 F.3d 916, 922 (9th Cir. 2004). Whether Fried was subjected to a hostile work environment and Wynn is liable for creating a hostile work environment are mixed questions of law and fact that we review de novo. See Little v. Windermere Relocation, Inc. , 301 F.3d 958, 966 (9th Cir. 2002).

III

Fried argues four incidents at the salon created a hostile work environment in violation of Title VII: (1) Barajas's suggestion that he seek employment in a field that is not a predominantly female environment; (2) his coworkers' suggestions that he should wear a wig; (3) Barajas's response to his report that a customer had sexually propositioned him; and (4) Fried's coworkers' comments that he should take the customer's proposition as a compliment and that Fried actually wanted to have sex with the customer.

Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment. 42 U.S.C. § 2000e-2(a)(1) ; Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 65–66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To succeed on his Title VII claim for hostile work environment, Fried was required to establish that: (1) he was subjected to a hostile work environment; and (2) Wynn was liable for the harassment that caused the hostile environment to exist. See Freitag v. Ayers , 468 F.3d 528, 539 (9th Cir. 2006). Because the district court granted summary judgment to Wynn based solely on the first prong of the claim, we limit our review to whether Fried was subjected to a hostile work environment. To establish he was subjected to a hostile work environment, Fried was required to prove that: (1) he was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. See Little , 301 F.3d at 966.

The Supreme Court has held an employer is liable pursuant to Title VII only for "its own" acts, Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ; see also Faragher v. City of Boca Raton , 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), but it is well established that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker's or third party's sexual harassment or racial discrimination the employer knew or should have known about. All federal circuits are in accord on this point. See, e.g., Howard v. Cook Cnty. Sheriff's Off. , 989 F.3d 587, 607 (7th Cir. 2021) ; Roy v. Correct Care Sols., LLC , 914 F.3d 52, 57 (1st Cir. 2019) ; Vasquez v. Empress Ambulance Serv., Inc. , 835 F.3d 267, 273–74 (2d Cir. 2016) ; Freeman v. Dal-Tile Corp. , 750 F.3d 413, 423 (4th Cir. 2014) ; Hernandez v. Yellow Transp., Inc. , 670 F.3d 644, 651 (5th Cir. 2012) ; Malone v. Ameren UE , 646 F.3d 512, 517 (8th Cir. 2011) ; Beckford v. Dep't of Corr. , 605 F.3d 951, 957–58 (11th Cir. 2010) ; Huston v. Procter & Gamble Paper Prods. Corp. , 568 F.3d 100, 104 (3d Cir. 2009) ; Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1139 (10th Cir. 2008) ; Curry v. District of Columbia , 195 F.3d 654, 660 (D.C. Cir. 1999) (per curiam); Hafford v. Seidner , 183 F.3d 506, 513 (6th Cir. 1999) ; Folkerson v. Circus Circus Enters., Inc. , 107 F.3d 754, 756 (9th Cir. 1997) ; see also 29 C.F.R. § 1604.11(e) (providing that employers may be liable for sexual harassment perpetrated by nonemployees "in the workplace, where the employer ... knows or should have known of the conduct and fails to take immediate and appropriate corrective action").

To determine whether an environment is sufficiently hostile or abusive to violate Tile VII, we consider "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Christian v. Umpqua Bank , 984 F.3d 801, 809 (9th Cir. 2020) (internal quotation marks omitted) (quoting Davis v. Team Elec. Co. , 520 F.3d 1080, 1095 (...