Holly D. v. California Institute of Technology

• Decision Date: 15 August 2003
• Docket Number: No. 01-56050.,No. 01-56189.,01-56050.,01-56189.
• Citation: 339 F.3d 1158
• Parties: Holly D., an individual, Plaintiff-counter-defendant-Appellant, v. California Institute of Technology, a California Non-Profit corporation, Defendant-Appellee, Stephen Wiggins, Ph.D., Defendant-counter-claimant-Appellee. Holly D., an individual, Plaintiff-counter-defendant-Appellee, v. California Institute of Technology, a California Non-Profit corporation, Defendant-Appellee, Stephen Wiggins, Ph.D., Defendant-counter-claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

339 F.3d 1158

Holly D., an individual, Plaintiff-counter-defendant-Appellant, v. California Institute of Technology, a California Non-Profit corporation, Defendant-Appellee, Stephen Wiggins, Ph.D., Defendant-counter-claimant-Appellee.

Holly D., an individual, Plaintiff-counter-defendant-Appellee, v. California Institute of Technology, a California Non-Profit corporation, Defendant-Appellee, Stephen Wiggins, Ph.D., Defendant-counter-claimant-Appellant.

No. 01-56050.

No. 01-56189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2002 — Pasadena, California.

Filed August 15, 2003.

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John H. Ernster and Joseph P. Mascovich, Ernster Law Offices, P.C., Pasadena, California, for the plaintiff-counter-defendant-appellant/appellee.

James A. Zapp, Paul, Hastings, Janofsky & Walker LLP, Los Angeles, California, for the defendant-appellee.

Diana P. Scott, Greenberg Traurig LLP, Los Angeles, California, for the defendant-counter-claimant-appellee/appellant.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding, D.C. No. CV-99-10086-MLR/RMC.

Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and Richard A. Paez, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Plaintiff Holly D., a 47-year-old woman, contends that in order to keep her job at the California Institute of Technology ("Caltech"), she was forced to engage in sexual relations with Stephen Wiggins, the professor for whom she worked. Although she was never told that she would be fired, demoted, or otherwise penalized if she refused, Holly D. asserts that there was an implication that her continued employment depended on her complying with the professor's unwelcome sexual advances. Holly D. alleges that she did, in fact, engage in unwanted sexual acts, and that the sexual liaison continued over more than a year. She now sues both the university and Wiggins for monetary damages, asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as well as a variety of claims under state law, including a claim of sexual harassment under California's Fair Employment and Housing Act (FEHA), CAL. GOV'T CODE §§ 12900 et seq.

We join the Second Circuit in holding that a plaintiff who contends that she was coerced into performing unwanted sexual acts with her supervisor, by threats that she would be discharged if she failed to comply with his demands, has alleged a tangible employment action under Title VII that, if proved, entitles her to relief against her employer. Here, Holly D. has properly pleaded a claim for relief on a tangible employment action theory; however, she has not presented sufficient evidence on that claim to survive summary judgment. Although we assume that Holly D.'s allegations in this case would also support a claim under the hostile environment prong of Title VII, and that she presents sufficient evidence to establish a prima facie case of such harassment, we hold that Caltech has established, as a matter of law, the affirmative "reasonable care" defense that employers may assert with respect to such charges. We also reiterate that Title VII does not afford monetary relief against a supervisor, such as Professor Wiggins, even when the supervisor is the person who engaged in the underlying wrongful conduct. We therefore affirm the district court's grant of summary judgment in favor of the defendants on Holly D.'s Title VII claims. However, because different and complex issues of state law are presented by the other claims contested on appeal, including Holly D.'s sexual harassment claim under California's FEHA, and because the particular facts and procedural history of the case present unique problems warranting remand, we vacate the district court's orders and judgments with respect to those state law claims, with instructions to the district court to remand them all to the state court for resolution.

I. BACKGROUND

Plaintiff Holly D., a working mother who suffered from depression as well as from serious financial difficulties, began her employment at Caltech in 1992 as a Senior Administrative Secretary for Professor Theodore Wu. In October 1996, she was promoted to Senior Division Assistant for Professor Stephen Wiggins in Caltech's Control Dynamic Systems department. As with all such transfers in the Caltech system, this move entailed a six-month probationary period, which lasted until April 1997.

Less than a year after Holly D.'s transfer, she and Professor Wiggins allegedly commenced a sexual relationship.¹ According to Holly D.: During the probationary period, Wiggins occasionally looked at her buttocks and breasts. Also, he sometimes made sexual comments, including references to his preferences with respect to various forms of sexual activity, and on occasion showed her pornographic websites — although he would eventually cease these activities when Holly D. told him that she was not interested. During the same period, Wiggins criticized Holly D.'s work and threatened to extend her probationary period, perhaps indefinitely. In June 1997, two months after the probationary period ended and one month before the first sexual contact, Holly D. received a performance evaluation that she characterized as negative.² In her mind, she drew a connection between her failure to respond positively to Wiggins's sexual comments and his subsequent criticism and negative evaluation. Holly D. eventually decided that, if Wiggins were to request that she engage in sex with him, she would have to comply in order to keep her job.

Holly D. does not contend that Wiggins used physical force to coerce sex, or that he explicitly threatened her with job-related consequences if she did not have sex with him. Nor does she assert that he ever stated, directly or indirectly, that there was a connection between his requests for sex, initial or otherwise, and any problem with her past work performance or her prospects for future employment. Nevertheless, Holly D. relies on what she believes to be indications that her job depended on her sexual submission. She states that, after the sexual relationship had begun, there were periods during which she rebuffed his advances. At those times, she alleges, Wiggins became "supercritical" of her work performance, but she could "neutralize[] it by giving in to his sexual demands."³ Because Holly D. concluded that she could mitigate what she characterized as unreasonable and potentially job-threatening criticism by performing sexual acts, she asserts that she is able to establish that she was forced to commence and maintain the sexual relationship in order to keep her employment.

The first sexual contact occurred in July 1997. According to Holly D., Wiggins visited her in her office, where they initially engaged in some discussion about sexual matters. When Wiggins asked what "turned her on," Holly D. replied, "When people talk dirty." Wiggins then asked, "Well, will you suck my dick?" and Holly D. replied "Yes." From July 1997 through July 1998, and then again, following a six-month period of abstinence, on one occasion in January of 1999, Holly D. and Wiggins engaged in various sex acts during work hours in their offices, involving many instances of intercourse and oral sex. In July 1998, after a year of such sexual activities, Holly D. received her second performance evaluation, which she characterized as "excellent."⁴

Between July 1998 and January 1999, no sexual contact occurred, but, as noted, a single final act took place at the end of that period. Holly D. testified that on the day of that last sexual contact, Wiggins came into her office requesting sex at three different times and "wore [her] down." On the third occasion, she said, "All right. Let's get it over with," and performed oral sex on Wiggins. Wishing to maintain evidence of the sexual relations, and having been alerted to practical methods of preserving proof by then — current events in the nation's capital, Holly D. covertly spat some of the seminal fluid from the oral sex onto her coat.

Holly D. first attempted to transfer out of Wiggins's office in July 1998, just about the time that her sexual relations with Wiggins appeared to have come to an end. She applied for another Caltech administrative position at a higher pay rate,⁵ but was not hired for that position or the next three positions for which she applied. She suspected that she was not selected because her medical leaves for clinical depression were improperly disclosed to the hiring committee. She complained, but Caltech determined after an investigation that no impropriety had occurred. On October 15, 1998, Holly D. filed an administrative charge with the EEOC, alleging disability discrimination. On May 26, 1999, the EEOC found no cause to proceed on the disability charge, and issued a right-to-sue notice.

Holly D. first mentioned the sexual harassment to a Caltech administration official — specifically, to a Caltech ombudsman in a confidential meeting — shortly after the EEOC found her disability charge to be without merit.⁶ She told the ombudsman of the sexual relationship and reported that Wiggins had not requested sex after the one incident in January 1999 until sometime that May, when he "asked for a threesome," which she declined.

On June 15, 1999, Holly D. filed a sexual harassment claim with the EEOC. Holly D. contends that, although she knew that Caltech had a sexual harassment policy and although she knew she was being harassed, she did not report the harassment to the institution because she felt that it would have been futile, given the administration's "bias[] in favor of its faculty." At Holly D.'s request, the EEOC issued a right-to-sue letter without conducting an investigation.

When Caltech was notified, by way of the EEOC letter, of the harassment allegations, a neutral committee was...