Porter v. California Dept. of Corrections

Decision Date05 August 2005
Docket NumberNo. 02-16537.,02-16537.
Citation419 F.3d 885
PartiesLawana PORTER, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Steven A. Hirsch and Daniel E. Jackson, Keker & Van Nest, San Francisco, CA, for the plaintiff-appellant.

Bill Lockyer, Attorney General; Jacob A. Appelsmith, Senior Assistant Attorney General; Vincent J. Scally Jr., Supervising Deputy Attorney General; and Diana L. Cuomo, Deputy Attorney General, Sacramento, CA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-00-00978-FCD.

Before SCHROEDER, Chief Judge, TALLMAN, and CALLAHAN, Circuit Judges.


CALLAHAN, Circuit Judge.


The opinion filed September 10, 2004, slip op. at 13197, is amended as follows:

Slip op. at 13197:

Delete the semicolon after "Opinion by Judge Callahan" and "Dissent by Judge Tallman"

Slip op. at 13210:

Delete Subsection "1." entitled "Quid Pro Quo Harassment"

Slip op. at 13211:

Delete Subsection "a." entitled "Porter's Prima Facie Case of Quid Pro Quo Harassment"

Slip op. at 13213:

Delete Subsection "b." entitled "CDC's Legitimate Reason and Porter's Evidence of Pretext"

Slip op. at 13215:

Renumber Subsection "2." entitled "Hostile Environment" as Subsection "1." and add the following introductory paragraph and footnote:

Porter's briefing does not specify whether she is alleging quid-pro-quo or hostile work environment sexual harassment. Since the facts are sufficient to establish a prima facie case of hostile work environment harassment, however, we leave for another day the question of whether quid-pro-quo liability attaches when an alleged harasser, who was not in a position to exact reprisals at the time his advances were rejected, is subsequently entrusted with and abuses such authority. n3

n3 In order to establish a prima facie case of quid-pro-quo sexual harassment, Porter must show that Wheeler or DeSantis "explicitly or implicitly conditioned a job, a job benefit, or the absence of a job detriment, upon [her] acceptance of sexual conduct." Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir.1995) (internal citation and quotation marks omitted).

Slip op. at 13222:

Delete Judge Tallman's dissent.

The petition for rehearing is otherwise DENIED. See Fed. R.App. P. 40. The suggestion for rehearing en banc is DENIED. See Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be accepted. The mandate shall issue forthwith.


In May 2000, Lawana Porter filed a complaint pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against the California Department of Corrections ("CDC"). Porter alleged that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection of sexual advances by correctional officers Terry Wheeler and Pete DeSantis in 1995 and 1996.

The district court granted the CDC's motion for summary judgment, holding that (1) the temporal gap between the complaints of sexual harassment and the alleged acts of retaliation precluded Porter from showing a causal link; and (2) the alleged incidents of sexual harassment could not be considered with the allegations of retaliation for the purpose of stating a viable cause of action.

On appeal, Porter makes two primary arguments. First, she argues that the district court erred in holding as a matter of law that she could not prove her retaliation claim because too much time elapsed between her reports of harassment and the CDC's retaliatory acts. Second, she asserts that the district court erred in holding as a matter of law that her sexual harassment claim was barred because "the many hostile acts directed against her within the limitations period bore no relation to the pervasively hostile working environment on which she based her claim."

We agree with Porter and reverse the district court. We hold that, although Porter's claims for harassment in 1995 and 1996 are time-barred, Porter is not precluded from attempting to show a causal link between the earlier harassment and more recent alleged acts of discrimination or retaliation.

I. Background

Porter has been employed as a correctional officer by the CDC since June 1995. In opposition to the CDC's motion for summary judgment, she offered sufficient evidence to support the inferences and allegations detailed below.1

A. Wheeler

Shortly after Porter started working at the CDC, Sergeant Wheeler began visiting her while she was on duty and asked her to go out with him. Porter declined, stating that she had been taught at the academy that subordinates did not date supervisors.

A few days later, Wheeler asked Porter to go to Reno with him and when Porter declined, Wheeler told her to talk to her "buddy," Correctional Officer Pat Thompson. At that time, Porter was living with Thompson and his wife. When Porter got home, Thompson told her that CDC was getting ready to "roll-over" part-time employees to full-time, and that he and Wheeler had made a deal that if Thompson arranged for Porter to go to Reno with Wheeler, Wheeler would make sure that Thompson was rolled over to full-time employment.

A couple of days later, when Porter crossed a patio at work, Wheeler yelled her name and asked her if she had talked to her "buddy" about the Reno trip. Porter said she had and she was not going. Wheeler told her she would go to Reno with him because he "owned her." When Porter turned away, Wheeler raised his voice and threatened that "nobody walks away from me."

After this incident, Porter told a sergeant about Wheeler's conduct. A lieutenant then asked Porter to submit a written report, which she did on November 19, 1995. Porter subsequently met with one of the CDC's equal employment opportunity ("EEO") counselors, who prepared a written sexual harassment complaint. Lieutenant McDonald was assigned to conduct an investigation.

McDonald concluded his investigation at the end of January 1996. He determined that Wheeler had asked Porter out on dates and spoken to Thompson about his desire to date Porter. In February 1996, an "Employee Counseling Record" was placed in Wheeler's supervisory file for three months. Wheeler was instructed to "cease any further behavior on the work site toward [Porter] `of a personal nature'" and to attend the next sexual-harassment prevention class.

Later in 1996 or 1997, when Porter was working under Wheeler's supervision, Wheeler began to eat her Chinese food during a meal break. When Porter complained, Wheeler spat into the food and handed it back to Porter. Porter perceived this as retaliatory because she had reported him for sexual harassment. In early January 1998, Wheeler went to the Office of Personnel Assignments ("OPA") to prevent Porter from working on the Lassen Yard. At another time, Wheeler told another sergeant in Porter's presence, "what is that fucking bitch doing on my yard?"

B. DeSantis

A week before her scheduled interview with McDonald in 1995, Porter contacted Correctional Officer Pete DeSantis, president of the local chapter of the California Correctional Peace Officer Association ("CCPOA"), and asked him to represent her. A couple of days after the interview, DeSantis telephoned Porter at home in the late evening and inquired if she was feeling better. Porter stated that she would feel better if the investigation was over. DeSantis responded that he could make her feel better. He told her that he "could make her crawl all over her bed with his tongue."

A couple of days later, in another phone call, DeSantis again asked Porter if she was feeling better. When she replied that she was not, DeSantis reminded her of how he could make her feel better. Porter unsuccessfully attempted to steer the conversation back to the investigation and then told DeSantis that she had to get off the phone.

A few days, later DeSantis called Porter at home to tell her about the CDC's Winter Dance Festival. He told her she should attend and stated that she would be safe because his wife would be there. The following day DeSantis called Porter and asked if she wanted to go to Reno with him to pick up union supplies. Porter told him she was not interested. Porter did go to the Winter Dance. While there, DeSantis motioned to her to come up to him and, pointing out his wife, indicated that Porter was safe because his wife was there.

Shortly thereafter, DeSantis called Porter at home and asked her to go with him to a union convention in Sacramento. He said they would get two rooms, but stay together until his wife got there. He asked Porter to bring a purple negligee. Porter said she was not interested. In a subsequent telephone conversation she agreed to go, but in a later conversation "she became angry with DeSantis and changed her mind." Porter called DeSantis an "asshole," and told him what he was doing was wrong. When she asked what would happen if she told his wife, DeSantis responded that he had already told his wife that Porter was a "whore." Thereafter, DeSantis ceased calling.

These conversations occurred between November 1995 and February 1996. Porter did not complain to the CDC about DeSantis nor did she request new union representation. Porter alleges that she told Lieutenant McDonald, during his investigation of Wheeler, about DeSantis' comments at the Winter Dance and his invitation to go to Reno.

C. Reprisals

DeSantis became a sergeant in February 1996. Porter alleges that in July 1996, DeSantis told correctional officer Scott Porter, Porter's then boyfriend and now husband, that he better "watch out," that Porter was a "whore" and would sleep with anyone.

In August 1997, shortly after Porter finished her apprenticeship program, she called OPA seeking to be assigned a post...

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