Zetwick v. Cnty. of Yolo

Decision Date23 February 2017
Docket NumberNo. 14-17341,14-17341
Citation850 F.3d 436
Parties Victoria ZETWICK, Plaintiff–Appellant, v. COUNTY OF YOLO; Edward G. Prieto, Sheriff of Yolo County, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

850 F.3d 436

Victoria ZETWICK, Plaintiff–Appellant,
COUNTY OF YOLO; Edward G. Prieto, Sheriff of Yolo County, Defendants–Appellees.

No. 14-17341

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2016. San Francisco, California
Filed February 23, 2017

Manolo Olaso (argued) and Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, California, for Plaintiff–Appellant.

John A. Whitesides (argued), Cori R. Sarno, and Carolee G. Kilduff, Angelo Kilday & Kilduff LLP, Sacramento, California, for Defendants–Appellees.

Before: Susan P. Graber and Mary H. Murguia, Circuit Judges, and Mark W. Bennett,* District Judge.


Appellant's request for publication is GRANTED . The mandate issued December 2, 2016, is recalled.

The memorandum disposition filed November 9, 2016, is redesignated as an authored opinion by Judge Bennett with modifications.


BENNETT, District Judge:

Plaintiff Victoria Zetwick, a county correctional officer, alleges that defendant Edward G. Prieto, the county sheriff, created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the California Fair Employment and Housing Act (FEHA), CAL. GOV'T CODE § 12900 et seq. , by, among other things, greeting her with unwelcome hugs on more than one hundred occasions, and a

850 F.3d 439

kiss at least once, during a 12–year period. The defendants, Prieto and the County of Yolo, argue that such conduct was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct. The district court granted the defendants' motion for summary judgment, and Zetwick appeals. We reverse and remand.


A. Factual Background

Zetwick began her employment with the Yolo County Sheriff's Department in 1988 as a correctional officer. She was promoted to sergeant in 2002. In 1999, Edward G. Prieto was elected as the county sheriff. He was in charge of a sheriff's office with approximately 250 employees, including the correctional officers. The defendants acknowledge that, after his election, Prieto introduced himself to the corrections staff and hugged all the female officers present, including Zetwick. Zetwick contends that, thereafter, from 1999 to 2012, Prieto subjected her to numerous unwelcome hugs and at least one unwelcome kiss that, taken as a whole, created a sexually hostile work environment.

Zetwick estimates that, from about 1999 to 2002, Prieto hugged her at least two dozen times and that, between 2003 and 2011, Prieto hugged her at least a hundred times. The defendants dispute the number and frequency of the hugs. They point out that, during 2000, Zetwick worked the night shift and rarely, if ever, encountered Prieto, whose office was not in the jail; during 2001, Zetwick worked in the courthouse holding facility and saw Prieto only occasionally; and, in 2002, after Zetwick was promoted and returned to the night shift, Prieto visited the jail perhaps once and hugged her. The defendants contend that most of the incidents in which Prieto hugged Zetwick were at parties involving sheriff's office employees, awards banquets, GED graduations for prisoners, and some training sessions or meetings, but no incidents when Prieto and Zetwick were alone.

In one particular incident, in May 2003, at an awards ceremony, Prieto kissed Zetwick, ostensibly to congratulate Zetwick on her recent marriage to a sheriff's deputy. The kiss landed on or, because Zetwick turned her head, partially on the lips. Zetwick states that she expressed her shock at this incident to her husband, co-workers, and supervising lieutenants, but not to Prieto. Her supervising lieutenants did not forward her complaints for investigation or resolution. Zetwick contends that, over the years, her co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips. She contends that, on another occasion, in 2010, when she was working in the booking area with another female sergeant named Malugani, Prieto approached Zetwick, reached out to hug her, then stopped himself, and told her that people had complained, so he would not give her a hug. He then promptly hugged both Zetwick and Malugani anyway. Zetwick avers that the last hug that Prieto gave her was in December 2011. The defendants point out that Prieto first became aware of Zetwick's dislike of his hugs when she filed her administrative claim in early 2012.

Zetwick also contends that, from 1999 to 2013, she saw Prieto hug and kiss several dozen other female employees, but did not see him hug male employees. Rather, she observed that Prieto gave male employees handshakes. She also details an incident in which Prieto repeatedly asked Malugani how much Mulagani weighed, until Malugani answered. Zetwick contends that, during this incident, Prieto stared at Malugani's body in a sexually suggestive manner and that Zetwick believed that Malugani

850 F.3d 440

was embarrassed and uncomfortable. The defendants counter that Malugani stated in a declaration that she was embarrassed, because her weight loss was from a health problem, but that she was not offended by Prieto's questions or hugs. The defendants also contend that even Zetwick described Prieto's hugs as the kind that one might give a relative or friend, lasting only a couple of seconds, and not involving sexual comments or other touching. Zetwick contends that the hugs were, nevertheless, chest to breasts. The defendants contend that, even if Zetwick did not see it, Prieto also hugged male employees on occasion. They add that Zetwick admits that she also hugged male co-workers and occasionally joined in banter about Prieto's hugs.

Zetwick contends that her workplace changed, and that she found it difficult to concentrate, because of Prieto's conduct, in that she was constantly stressed and anxious about Prieto's touching, which she believed had sexual overtones. She testified in a deposition that she sometimes cried at work, in the locker room, because of stress from Prieto's conduct, that she lost sleep, and that she had to take sleep aids because of her anxiety.

B. Procedural Background

After exhausting administrative remedies, Zetwick filed suit on October 3, 2012, against the County of Yolo, Prieto, and Does 1 through 50. She asserted claims of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , against the County and Does 1 through 50; sexual harassment in violation of the California Fair Employment and Housing Act (FEHA), CAL. GOV'T CODE § 12900 et seq. , against all defendants; and failure to prevent sexual harassment, in violation of the FEHA, CAL. GOV'T CODE § 12940(k), against the County and Does 1 through 50. Zetwick sought compensatory, general, and special damages, punitive and exemplary damages, costs and attorney's fees, and such other relief, including injunctive and/or declaratory relief, as the court might deem appropriate. The County and Prieto filed a joint Answer on November 16, 2012, denying Zetwick's claims and asserting various affirmative defenses.

On October 3, 2013, the County and Prieto filed a Motion for Summary Judgment. Zetwick filed her Opposition on October 17, 2013, and the defendants filed their Reply on October 24, 2013. The district court heard oral arguments on the defendants' Motion for Summary Judgment on October 31, 2013. Just over a year later, on November 6, 2014, the district court granted the defendants' Motion for Summary Judgment, dismissed Zetwick's claims, and directed the Clerk of Court to close the case. Zetwick v. Cty. of Yolo , 66 F.Supp.3d 1274 (E.D. Cal. 2014). Judgment was entered accordingly on November 6, 2014. Zetwick timely filed her Notice Of Appeal on November 24, 2014. We have jurisdiction under 28 U.S.C. § 1291.


A. Summary Judgment Standards

Our review of a summary judgment ruling is de novo. Animal Legal Def. Fund v. FDA , 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam). The standard for summary judgment is familiar: "Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact." See, e.g. , United States v. JP Morgan Chase Bank Account No. Ending 8215 , 835 F.3d 1159, 1162 (9th Cir. 2016) (internal quotation marks omitted). This statement does not fully explain the role of the courts at summary judgment, however.

850 F.3d 441

As to that, the Supreme Court recently reiterated:

[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. See Brosseau v. Haugen , 543 U.S. 194, 195 n.2 [125 S.Ct. 596, 160 L.Ed.2d 583] (2004) (per curiam);

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