Victoria Zetwick v. County of Yolo, et al

Filing

FILED ORDER AND OPINION (SUSAN P. GRABER, MARY H. MURGUIA and MARK W. BENNETT) 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.; REVERSED AND REMANDED. Judge: MWB Authoring. FILED AND ENTERED JUDGMENT. [10330187]

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 1 of 19

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTORIA ZETWICK,
Plaintiff-Appellant,

No. 14-17341
D.C. No.
2:12-CV-02486-TLN-AC

v.
COUNTY OF YOLO; EDWARD
G. PRIETO, Sheriff of Yolo
County,
Defendants-Appellees.

ORDER AND OPINION

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Court Judge, Presiding
Argued and Submitted October 18, 2016.
San Francisco, California
Filed February 23, 2017
Before: Susan P. Graber and Mary H. Murguia, Circuit
Judges, and Mark W. Bennett,* District Judge.
Opinion by Judge Bennett

*

The Honorable Mark W. Bennett, United States District Judge for
the Northern District of Iowa, sitting by designation.

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 2 of 19

2

ZETWICK V. COUNTY OF YOLO
SUMMARY**

Employment Discrimination
The panel filed (1) an order recalling the mandate,
granting a request for publication, and redesignating a
memorandum disposition as an authored opinion with
modifications, and (2) an opinion reversing the district court’s
summary judgment in favor of the defendants in an action
under Title VII and the California Fair Employment and
Housing Act.
A county correctional officer alleged that the county
sheriff created a sexually hostile work environment. The
panel held that a reasonable juror could conclude that
differences in the sheriff’s hugging of men and women were
not, as the defendants argued, just “genuine but innocuous
differences in the ways men and women routinely interact
with members of the same sex and the opposite sex.” In
addition, the district court’s contrary conclusion may have
been influenced by application of incorrect legal standards.
The panel held that hugging can create a hostile or abusive
workplace when it is unwelcome and pervasive, and summary
judgment on a hostile work environment claim is appropriate
only if the defendant’s conduct was neither severe nor
pervasive enough to alter the conditions of the plaintiff’s
employment. The panel remanded the case to the district
court for a trial on the merits of the plaintiff’s federal and
state sexual harassment claims and her state claim of failing
to prevent sexual harassment.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 3 of 19

ZETWICK V. COUNTY OF YOLO

3

COUNSEL
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.

ORDER
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.

OPINION
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 kiss at least once, during a 12-year

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 4 of 19

4

ZETWICK V. COUNTY OF YOLO

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.
I. INTRODUCTION
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

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 5 of 19

ZETWICK V. COUNTY OF YOLO

5

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

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 6 of 19

6

ZETWICK V. COUNTY OF YOLO

stared at Malugani’s body in a sexually suggestive manner
and that Zetwick believed that Malugani 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

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 7 of 19

ZETWICK V. COUNTY OF YOLO

7

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.
II. LEGAL ANALYSIS
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

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 8 of 19

8

ZETWICK V. COUNTY OF YOLO

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.
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 (2004) (per curiam ); Saucier [v.
Katz, 533 U.S. 194,] 201 [(2001)]; Hope [v.
Pelzer, 536 U.S. 730,] 733 n.1 [(2002)]. This
. . . is simply an application of the more
general rule that a “judge’s function” at
summary judgment is not “to weigh the
evidence and determine the truth of the matter
but to determine whether there is a genuine
issue for trial.” Anderson [v. Liberty Lobby,
Inc.], 477 U.S. [242,] 249 [(1986)].
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).
It is also clear that the court must not make any credibility
determinations. Anderson, 477 U.S. at 255; Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(explaining that the standard for summary judgment
“mirrors” the standard for judgment as a matter of law).
Similarly, the district court must recognize that, where
evidence is genuinely disputed on a particular issue—such as
by conflicting testimony—that “issue is inappropriate for
resolution on summary judgment.” Direct Techs., LLC v.

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 9 of 19

ZETWICK V. COUNTY OF YOLO

9

Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th Cir. 2016); Pan
Pac. Retail Props., Inc. v. Gulf Ins. Co., 471 F.3d 961, 970
(9th Cir. 2006) (“[T]he district court erred in granting
summary judgment to the defendants, resolving [an] issue in
light of the disputed and conflicting evidence before it.”). To
put it another way, “where the district court has made a
factual determination, summary judgment cannot be
appropriate.” Animal Legal Def. Fund, 836 F.3d at 990. The
proper question for the district court is whether, viewing the
facts in the non-moving party’s favor, summary judgment for
the moving party is appropriate. See Arizona ex rel. Horne v.
Geo Grp., Inc., 816 F.3d 1189, 1207 (9th Cir. 2016) (“We
express no view on whether [the plaintiff] was actually
sexually harassed or harassed on the basis of her sex, but hold
that viewing the facts in her favor, the district court erred in
dismissing [the plaintiff’s] hostile work environment
claim.”), cert. denied, 2017 WL 69195 (U.S. Jan. 9, 2017)
(No. 16-302).
In short, what is required to defeat summary judgment is
simply evidence “such that a reasonable juror drawing all
inferences in favor of the respondent could return a verdict in
the respondent’s favor.” Reza v. Pearce, 806 F.3d 497, 505
(9th Cir. 2015) (internal quotation marks omitted); accord
Anderson, 477 U.S. at 249 (“[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.”). On the
other hand, the Supreme Court has made clear: “Where the
record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for
trial,” and summary judgment is appropriate. Ricci v.
DeStefano, 557 U.S. 557, 586 (2009) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 10 of 19

10

ZETWICK V. COUNTY OF YOLO

The district court must not only properly consider the
record on summary judgment, but must consider that record
in light of the “governing law.” Anderson, 477 U.S. at 248;
Animal Legal Def. Fund, 836 F.3d at 989 (appellate review of
a summary judgment ruling involves, inter alia, “decid[ing]
whether the district court correctly applied the relevant
substantive law”). Thus, where application of incorrect legal
standards may have influenced the district court’s conclusion,
remand is appropriate. Harris v. Forklift Sys., Inc., 510 U.S.
17, 23 (1993).
B. Zetwick’s Sexually Hostile Work Environment Claim
The “governing law,” see Anderson, 477 U.S. at 248,
requires Zetwick to generate genuine issues of material fact
that Prieto’s conduct “was sufficiently severe or pervasive to
alter the conditions of [Zetwick’s] employment and create an
[objectively] abusive working environment.” Craig v. M &
O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007)
(internal quotation marks omitted); see id. (identifying the
elements of a prima facie case of a sex-based hostile work
environment (internal quotation marks omitted)); accord Geo
Grp., Inc., 816 F.3d at 1206 (“An employer is liable under
Title VII for conduct giving rise to a hostile environment
where the employee proves (1) that he was subjected to
verbal or physical conduct of a harassing nature, (2) that this
conduct was unwelcome, and (3) that the conduct was
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.” (internal quotation marks omitted)).1 We hold

1

Essentially the same legal analysis applies to Zetwick’s hostile work
environment sexual harassment claims under the FEHA as federal courts
apply to Title VII claims. Brooks v. City of San Mateo, 229 F.3d 917, 923

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 11 of 19

ZETWICK V. COUNTY OF YOLO

11

that, giving the record proper consideration, a reasonable
juror could conclude that the differences in hugging of men
and women were not, as the defendants argue, just “genuine
but innocuous differences in the ways men and women
routinely interact with members of the same sex and of the
opposite sex.” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (internal quotation marks omitted). Thus,
summary judgment was inappropriate. Reza, 806 F.3d at 505.
We also hold that the district court’s contrary conclusion may
have been influenced by application of incorrect legal
standards. Harris, 510 U.S. at 23.
1. Application of incorrect legal standards
The first incorrect legal standard the district court applied
involved extraction of a sort of black letter rule, from just a
few cases, that courts do not consider hugs and kisses on the
cheek to be outside the realm of common workplace
behavior. Zetwick, 66 F. Supp. 3d at 1280–81. In support of
this proposition, the district court cited three cases: Lefevre
v. Design Prof’ls Ins. Cos., No. C 93-20720 RPA, 1994 WL
514020 (N.D. Cal. Sept. 15, 1994); Graves v. City of Durant,
No. C 09-0061, 2010 WL 785850 (N.D. Iowa Mar. 5, 2010);
and Joiner v. Wal-Mart Stores, Inc., 114 F. Supp. 2d 400, 409
(W.D.N.C. 2000). None of these decisions states or properly
stands for that proposition. Furthermore, none identified
either the number of times or the period of time over which

(9th Cir. 2000). Therefore, like the district court, we will focus on Title
VII standards.

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 12 of 19

12

ZETWICK V. COUNTY OF YOLO

unwelcome hugging
distinguishable.2

occurred;

they

are

factually

This is particularly true of the decision in Joiner, which
states that the plaintiff complained “that he was subjected to
unwanted propositions and hugs and kisses from female
coworkers,” but does not indicate the frequency or period of
time over which such conduct occurred. 114 F. Supp. 2d at
407–09. What makes the decision in Joiner more interesting,
however, is that the district court stated only that flirting,
hugging, and even kissing in the workplace “are very
ordinary things that people do and are not per se intimidating,
hostile, humiliating, or offensive.” Id. at 409. The court then
recognized that “[i]t is only when such conduct is both
unwelcome and pervasive that [it] become[s] unlawful.” Id.
Thus, Joiner does not state a black letter rule that hugging
cannot create a hostile or abusive workplace. Rather, it
actually recognizes that such conduct can create a hostile or
abusive workplace, when “[i]t is . . . unwelcome and
pervasive.” Id.

2

Indeed, in Lefevre, the court confusingly states that the plaintiff
alleged that the harasser “forced her to shake hands with him each time
they met and would frequently hug her at business meetings where [the
plaintiff] was the only women [sic] in attendance,” but then dismisses the
plaintiff’s complaints as inadequate to create an objectively hostile work
environment, because “[f]requent handshakes and occasional hugs at
business meetings do not amount to pervasive harassment.” 1994 WL
514020, at *3 (emphasis added). The decision in Graves gives no
indication of the frequency of the unwelcome hugging at issue. See 2010
WL 785850, at *3 (referring to “being leaned into, touched or hugged,”
but without indicating the frequency or period of time over which such
conduct occurred); id. at *11 (again referring to “unwanted leaning,
touching, or hugging,” without indicating the frequency or period of time
over which such conduct occurred).

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 13 of 19

ZETWICK V. COUNTY OF YOLO

13

The district court also applied an incorrect legal standard
when it “f[ound] that Defendant Prieto’s conduct in this case
was not severe and pervasive.” Zetwick, 66 F. Supp. 3d at
1285 (emphasis added). The proper standard, however, is
whether the defendant’s conduct was “severe or pervasive.”
Geo Grp., Inc., 816 F.3d at 1206 (emphasis added).
Summary judgment is appropriate only if the conduct was
“neither severe nor pervasive enough to alter the conditions
of [Zetwick’s] employment.” Manatt v. Bank of Am., NA,
339 F.3d 792, 799 (9th Cir. 2003) (emphasis added). We do
not dismiss this mistake as simply a typographical error,
notwithstanding that the district court properly stated the
requirement as “severe or pervasive” elsewhere in its
decision. The incorrect statement of the legal standard
occurred precisely where the district court made the pertinent
finding that Zetwick had not met the standard. Zetwick, 66 F.
Supp. 3d at 1285.
We conclude that the application of these incorrect legal
standards may have influenced the district court’s decision to
grant summary judgment. Harris, 510 U.S. at 23.
2. Improper analysis of the record
Turning to the district court’s analysis of the record, on de
novo review, Animal Legal Def. Fund, 836 F.3d at 988, we
cannot accept the conclusion that Zetwick did not state an
actionable claim of a sexually hostile work environment. “To
be actionable under Title VII, a sexually objectionable
environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.”
Geo Grp., Inc., 816 F.3d at 1206 (internal quotation marks
omitted). A reasonable juror could credit Zetwick’s

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 14 of 19

14

ZETWICK V. COUNTY OF YOLO

testimony that Prieto’s conduct “was sufficiently severe or
pervasive to alter the conditions of [Zetwick’s] employment
and create an [objectively and subjectively] abusive working
environment.” Craig, 496 F.3d at 1055. This is so, where
her testimony is that Prieto hugged her more than one
hundred times over the period from 1999 to 2012, that he
hugged female employees much more often than male
employees and, indeed, from Zetwick’s observations, he
hugged female employees exclusively. Because a reasonable
juror could find in Zetwick’s favor, summary judgment was
inappropriate. Reza, 806 F.3d at 505.
More specifically, while it may appear that Prieto’s hugs
were “common” in the workplace, and that some other crossgender hugging occurred, neither of those things
demonstrates beyond dispute that Prieto’s hugging was within
the scope of “ordinary workplace socializing.” A reasonable
juror could find, for example, from the frequency of the hugs,
that Prieto’s conduct was out of proportion to “ordinary
workplace socializing” and had, instead, become abusive.
See Geo Grp., Inc., 816 F.3d at 1206 (citing factors relevant
to the determination of whether the environment was
sufficiently hostile or abusive, 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” (internal quotation marks omitted)). This is so,
at least in part, because it is not possible to determine whether
the environment was “hostile or abusive” without considering
the cumulative effect of the conduct at issue to determine
whether it was sufficiently “severe or pervasive” to alter the
conditions of the workplace. Id. at 1207.

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 15 of 19

ZETWICK V. COUNTY OF YOLO

15

Instead of giving proper consideration to the cumulative
effect of the conduct at issue, the district court attempted to
apply “a mathematically precise test” to determine whether or
not Zetwick had generated genuine issues of material fact that
the environment created by Prieto’s hugging was sufficiently
hostile. See Harris, 510 U.S. at 22–23 (rejecting such a test).
The district court stated: “While both parties acknowledged
that the frequency of the interactions varied, simple math
indicates that Plaintiff experienced this conduct an average of
around seven or eight times per year for a couple [of] seconds
on each occurrence,” the encounters were not “on a daily
basis,” “most . . . occurred outside of normal work hours,”
and the encounters were not physically threatening or
humiliating. Zetwick, 66 F. Supp. 3d at 1285. The district
court correctly conceded that there was no “magic number of
harassing incidents” that would give rise to liability. Id. In
any event, there remain disputes concerning how many
hugging incidents there were; whether or not the hugs were
concentrated during certain periods of Zetwick’s
employment, when she was on certain shifts, resulting in
periods of relatively high frequency hugging, or spread
evenly or “sporadically” over the entire 12-year period; and
what percentage of the times the two met that Prieto hugged
Zetwick.
The district court erred in concluding as a matter of law
that, “[b]ased on the totality of the circumstances[,]
Defendant Prieto’s conduct did not create a severe or
pervasive work environment with respect to Plaintiff.” Id. at
1285–86. We conclude that the district court had not
properly considered the totality of the circumstances,
however. For example, the district court failed to consider
whether a reasonable juror would find that hugs, in the kind,
number, frequency, and persistence described by Zetwick,

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 16 of 19

16

ZETWICK V. COUNTY OF YOLO

create a hostile environment. Zetwick relies, in part, on
Alvarado v. Federal Express Corp., 384 F. App’x 585, 589
(9th Cir. 2010) (unpublished), in which we noted that the
hugging included chest to breast contact, which a reasonable
juror (and a reasonable woman) could find created a hostile
environment. Alvarado suggests that the hugs to which
Zetwick was subjected raise a jury question on the objective
abusiveness of the environment. In addition, Zetwick is
correct “that a hostile work environment is ambient and
persistent, and that it continues to exist between overt
manifestations.” Draper v. Coeur Rochester, Inc., 147 F.3d
1104, 1108 n.1 (9th Cir. 1998). This is yet another reason
why simply looking at the number of hugs over the period of
time did not adequately address whether Zetwick had
generated genuine issues of material fact that the environment
she faced was sexually hostile.
The district court also completely overlooked legal
recognition of the potentially greater impact of harassment
from a supervisor and, indeed, the highest ranking officer in
the department. The Supreme Court has recognized that “acts
of supervisors have greater power to alter the environment
than acts of coemployees generally.” Faragher, 524 U.S. at
805. Indeed, the Court has recognized that “a supervisor’s
power and authority invests his or her harassing conduct with
a particular threatening character.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 763 (1998). Thus, Prieto’s position as
Zetwick’s supervisor was significant to whether or not a
reasonable juror could find the hugs and the kiss to which
Zetwick was subjected created an abusive environment.
The district court also overlooked the import of its
observation that Zetwick had stated in a deposition that it was
difficult for her to go to work and that she was always

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 17 of 19

ZETWICK V. COUNTY OF YOLO

17

stressed, suffered from anxiety, and took a sleep aid, which
the district court conceded “[c]ertainly [would] interfere with
an individual’s job.” Zetwick, 66 F. Supp. 3d at 1284. This
concession suggests that a reasonable juror would have an
evidentiary basis to find that Zetwick’s environment was
abusive. See Davis v. Team Elec. Co., 520 F.3d 1080, 1095
(9th Cir. 2008) (“A working environment is abusive if hostile
conduct pollutes the victim’s workplace, making it more
difficult for her to do her job, to take pride in her work, and
to desire to stay on in her position.” (emphasis added)
(internal quotation marks omitted)).
It was also improper for the district court to disregard
Zetwick’s evidence that Prieto hugged and kissed other
women. Zetwick argues that such evidence helps to generate
genuine issues of material fact that the environment was
objectively hostile. We have long recognized that “[t]he
sexual harassment of others, if shown to have occurred, is
relevant and probative of [a defendant’s] general attitude of
disrespect toward his female employees, and his sexual
objectification of them.” Heyne v. Caruso, 69 F.3d 1475,
1479–81 (9th Cir. 1995); see also Dominguez-Curry v.
Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005)
(concluding that evidence that other women were harassed
showed that hostility pervaded the workplace and helped
show that it was hostile).
As to one specific incident of Prieto’s conduct towards
other women, the district court observed that Zetwick’s
description of the incidents involving Malugani “do[] not
survive factual scrutiny in discovery,” in light of Malugani’s
declaration. Zetwick, 66 F. Supp. 3d at 1283. It was
improper for the district court to determine that Zetwick’s
testimony that Malugani was embarrassed by Prieto’s

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 18 of 19

18

ZETWICK V. COUNTY OF YOLO

questions and hugs, based on her firsthand observation of the
incident, was necessarily less credible than Malugani’s
assertion, in her post hoc declaration, that she was
embarrassed about her weight loss, but not by Prieto’s
questions and hugs. A reasonable juror could conclude that
Malugani had reasons not to complain about past treatment
by her employer and to make a declaration, not subject to
cross-examination, to support her employer’s position. This
was the sort of conflict in the testimony that makes resolution
of the issue at summary judgment inappropriate. Direct
Techs., LLC, 836 F.3d at 1067. This conflict cannot be
ignored, because it is not clear that one of the versions of the
incident “is blatantly contradicted by the record, so that no
reasonable jury could believe it.” Scott v. Harris, 550 U.S.
372, 380 (2007).
Finally, the defendants assert that the record shows that
Prieto also hugged men, but they do not suggest that Prieto
hugged men as often as he hugged women. Zetwick has
submitted evidence that she never saw Prieto hug men and
evidence that others agreed that Prieto hugged women more
frequently than men. Thus, she submitted evidence from
which a reasonable juror could conclude that, even if Prieto
also hugged men on occasion, there were “qualitative and
quantitative differences” in the hugging conduct toward the
two genders. Geo Grp., Inc., 816 F.3d at 1207 n.12 (internal
quotation marks omitted). The offensive conduct does not
have to be “facially sex-specific.” Id. (internal quotation
marks omitted).3

3

The defendants argue that the hugging to which Zetwick was
subjected was “friendly” and “socially acceptable” and that Zetwick has
“exaggerated the evidence.” These arguments rely on weighing of the
evidence, which is not appropriate at the summary judgment stage of the

Case: 14-17341, 02/23/2017, ID: 10330187, DktEntry: 38-1, Page 19 of 19

ZETWICK V. COUNTY OF YOLO

19

III. CONCLUSION
We reverse the grant of summary judgment in favor of the
defendants and remand for a trial on the merits of Zetwick’s
federal and state sexual harassment claims and her state claim
of failing to prevent sexual harassment.
REVERSED and REMANDED.

proceedings, see Tolan, 134 S. Ct. at 1866; Geo Grp., Inc., 816 F.3d at
1207, even if such arguments may be presented to a jury.