Cynthia Fuller v. Idaho Dept. of Corrections, et al

Filing

FILED OPINION (SUSAN P. GRABER, SANDRA S. IKUTA and ANDREW D. HURWITZ) We vacate the summary judgment in favor of the IDOC and remand for a trial on Fuller s Title VII hostile work environment claim. Costs on appeal are awarded to Plaintiff-Appellant.. Judge: SSI Dissenting, Judge: ADH Authoring. FILED AND ENTERED JUDGMENT. [10526552]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CYNTHIA FULLER,

No. 14-36110
Plaintiff-Appellant,

v.

D.C. No.
1:13-cv-00035JLQ

IDAHO DEPARTMENT OF
CORRECTIONS; BRENT REINKE;
HENRY ATENCIO,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Idaho
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted March 6, 2017
Seattle, Washington
Filed July 31, 2017
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz;
Dissent by Judge Ikuta

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FULLER V. IDAHO DEP’T OF CORR.
SUMMARY *

Employment Discrimination
The panel vacated the district court’s grant of summary
judgment in favor of the defendant on a Title VII hostile
work environment claim brought by a plaintiff who was
raped by an Idaho Department of Corrections co-worker.
The panel held that the plaintiff proffered sufficient
admissible evidence to avoid summary judgment. Viewing
the facts in the light most favorable to the plaintiff, the panel
held that she had raised triable issues of fact as to whether
the IDOC’s actions following the rape were sufficiently
severe or pervasive to create a hostile work environment.
The panel held that if a jury found that the plaintiffs’ IDOC
supervisors created a hostile work environment, then the
IDOC would be vicariously liable.
In a concurrently filed memorandum disposition, the
panel affirmed the district court’s summary judgment to the
IDOC on other claims. It remanded for a trial on the hostile
work environment claim.
Dissenting, Judge Ikuta wrote that the evidence in the
record did not show discrimination because of the plaintiff’s
sex, as is required to establish an employer’s liability under
Title VII.

*

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

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COUNSEL
Kathryn K. Harstad (argued) and Erika Birch, Strindberg &
Scholnick LLC, Boise, Idaho, for Plaintiff-Appellant.
Phillip J. Collaer (argued) and Tracy J. Crane, Anderson
Julian & Hull LLP, Boise, Idaho, for Defendants-Appellees.

OPINION
HURWITZ, Circuit Judge:
Cynthia Fuller was raped by an Idaho Department of
Corrections (“IDOC”) co-worker. Before that sexual
assault, the IDOC had placed the co-worker, whose conduct
had been the subject of several complaints by female
employees, on administrative leave because he was under
criminal investigation for another rape. Shortly before
Fuller was raped, a supervisor told employees (including
Fuller) that the agency “looked forward” to the co-worker’s
prompt return from leave. One day after Fuller reported the
rape, a supervisor told her that the rapist “had a history of
this kind of behavior.” Nonetheless, the supervisor sent an
e-mail to all agency employees the very next day, telling
them to “feel free” to contact the rapist and “give him some
encouragement.” When Fuller asked for paid administrative
leave to deal with problems caused by the rape, she was told
that her case was not “unusual” enough to warrant that
treatment; the rapist, however, was provided paid leave.
The district court granted summary judgment to the
IDOC on Fuller’s hostile work environment claim. We hold
that Fuller proffered sufficient admissible evidence to avoid

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summary judgment, and we remand for a trial on her hostile
work environment claim. 1
FACTUAL BACKGROUND 2
A. Rape Allegations and Cruz Investigation.
In January 2011, Cynthia Fuller began working as a
probation and parole officer in the IDOC District 3 office in
Caldwell, Idaho. During her first week on the job, Fuller met
Herbt Cruz, a senior probation officer. Months later, they
began an intimate relationship. Although IDOC policy
required reporting the relationship, they kept it secret.
In late July 2011, Idaho State Police notified the IDOC
that the Canyon County Sheriff’s Office was investigating
Cruz for the rape of “J.W.,” a civilian. On August 15, the
IDOC placed Cruz on administrative leave with pay. District
Manager Kim Harvey called a District 3 staff meeting,
advising the employees that Cruz was on administrative
leave because of a confidential, ongoing investigation and
“was not authorized to be on the premises.” But, Harvey
also stated that the IDOC looked forward to Cruz’s prompt
return to work.
The next day, Fuller disclosed her relationship with Cruz
to her supervisors, who did not reveal the nature of the
ongoing investigation to her. Eventually, Fuller learned that
1
We have affirmed the district court’s summary judgment to the
IDOC on Fuller’s other claims in a memorandum disposition issued
today.
2

We view the evidence in the light most favorable to Fuller, the
party opposing summary judgment. JL Beverage Co. v. Jim Beam
Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016).

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Cruz had been accused of rape, but nonetheless continued
her relationship with him.
On August 22, Cruz raped Fuller at his home. A second
rape took place on August 30 or 31, and a third on September
3, both also outside the workplace.
On September 6, after the IDOC received photos of her
injuries, Fuller confirmed to Harvey that Cruz had raped her.
Harvey took Fuller to the Canyon County Sheriff’s Office
and sat in on part of her interview with detectives.
Afterwards, Harvey told Fuller “that Cruz had a history of
this kind of behavior and that he knew of several instances.” 3
The next day, Fuller obtained a civil protection order
prohibiting Cruz from coming within 1000 feet of her.
Henry Atencio, Deputy Chief of the IDOC Probation &
Parole Division, directed Harvey to maintain contact with
Cruz while he was on leave, to keep him informed of the
investigation’s status and “make sure he’s doing okay in
terms of still being our employee.” Fuller knew about
Cruz’s continued contacts with supervisors while on leave.
On September 7, the day Fuller obtained the civil protection
order, Harvey sent this e-mail to District 3 staff, including
Fuller:

3

Prior to the rape of Fuller, the IDOC had received complaints from
three female employees about inappropriate behavior by Cruz. One of
the employees filed a suit against the IDOC in 2006, alleging sexual
harassment by Cruz. Cruz was not disciplined in connection with any of
these events, although in 2010, the IDOC decided not to transfer him to
a district office in which two of the complainants worked, after they
objected. Harvey then was asked by Henry Atencio, his supervisor, to
tell Cruz that “that behavior won’t be tolerated,” and to “keep an eye on
him.”

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FULLER V. IDAHO DEP’T OF CORR.
Just an update on Cruz. I talked to him. He
sounds rather down, as to be expected. . . .
Just as a reminder – and this is always one
thing I hate about these things – he cannot
come to the office until the investigation is
complete. Nor can he talk to anyone in the
Department about the investigation. So, if
you want to talk to him, give him some
encouragement etc., please feel free. Just
don’t talk about the investigation. At this
point, I honestly don’t know the status of it.

The IDOC began an internal investigation of Cruz on
September 12, and on September 14 expanded the
investigation to include Fuller’s allegations.
IDOC
investigators met with Cruz twice in September, and also
interviewed Fuller. The investigation concluded in late
October, with the IDOC deciding to terminate Cruz’s
employment. But, waiting to see if Cruz would be criminally
charged, the IDOC did not issue a Notice of Contemplated
Action until December 27, nor did it apprise Fuller whether
Cruz had been cleared. Cruz promptly resigned after being
notified that the IDOC intended to terminate his
employment.
B. The IDOC’s Responses to Fuller’s Report.
After Fuller reported the rapes to the Canyon County
Sheriff’s Office, Harvey told Atencio and Fuller’s direct
supervisors about the allegations. He told the supervisors
that she was taking leave and that, if other employees
inquired about her absence, the agency should say that it was
related to her known illness. Harvey told Fuller that he
would determine whether she was eligible for paid
administrative leave. On September 19, Atencio formally

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denied Fuller’s leave request in an e-mail, explaining that
only employees under investigation are eligible for
administrative leave, and advising her to use accrued
vacation and sick time instead. He copied Roberta Hartz, a
Human Resources (“HR”) representative, on the e-mail,
despite knowing she had previously lived with Cruz.
IDOC Standard Operating Procedure (“SOP”) 206
permitted the Director to grant paid administrative leave
“[w]hen a manager (or designee) deems it necessary due to
an unusual situation, emergency, or critical incident that
could jeopardize IDOC operations, the safety of others, or
could create a liability situation for the IDOC.” 4 But, IDOC
Director Brent Reinke granted paid leave under this policy
only for “acts of God, nature,” because state officials had
instructed him to restrict paid leave.
Fuller later received intermittent Family & Medical
Leave Act leave. After her doctor certified that she was
“unable to concentrate, and perform,” had “severe anxiety,”
and was “unsafe to carry [a] weapon,” the IDOC placed
Fuller on modified duty doing data entry.
Fuller again requested paid leave, noting that (1) Cruz
was being paid during his administrative leave; (2) she had
“received no guidance from the IDOC regarding any
assistance . . . as a victim, including” filing a sexual
harassment claim; and (3) the IDOC had put other “potential
victim[s]” at risk by failing to disclose to staff why Cruz was
4

SOP 206 also permits the director to grant paid administrative
leave “[w]hen the employee is being investigated” and “[w]hen the
employee is in the due process procedure of a disciplinary action.” Cruz
received paid leave under these provisions.

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on leave and by stating that it “hopes he returns soon.” The
IDOC did not respond to her letter.
Fuller met with Atencio, Harvey, and Hartz 5 on
November 10, 2011, asking for reinstatement of her vacation
and sick time and for paid administrative leave for the work
she missed, and would continue to miss, because of the
rapes. Atencio said she did not meet the SOP 206 criteria,
because her situation was not “unusual.”
Fuller also described her “uncomfortable work
environment” to the supervisors. Staff, unaware of why she
had been absent from work, suspected that she was “faking
being sick.” This ostracization occurred, she believed,
“because [the staff have] been misled” about Cruz’s
situation. Harvey explained that he was “not at liberty to say
why [Cruz is on leave] because . . . that wouldn’t be fair. . .
if the allegations were proven untrue,” and Cruz would have
a “stigma hanging over [him].” Harvey said that at the time
he told staff that he looked forward to Cruz’s prompt return
to work, “the only alleged victim that [he] knew about was
the gal . . . that had originally come forward,” not Fuller.
Fuller said Harvey’s later encouragement of staff to give
Cruz “moral support,” despite knowing that she had accused
him of rape, was “completely insulting.” Harvey replied that
he was “trying to keep [her] out of it.”
Fuller asked that the IDOC inform District 3 employees
of the civil protection order, explaining that she did not “feel
safe” because Cruz could walk in to the building and no one
5

Fuller was uncomfortable with Hartz’s presence at the meeting
because of Hartz’s previous relationship with Cruz, and Hartz’s failure
to discipline another IDOC employee whom Fuller had previously
accused of inappropriately touching her.

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would call the police. Atencio responded that, “as much as
you find this distasteful, Cruz is still our employee. And we
have to be conscious of his rights.”
On November 16, Harvey sent this message to District 3
staff:
I want to update you regarding Herbt Cruz.
As you know, Herbt is on leave pending an
investigation. The investigation is on-going
and we hope to bring this to a resolution as
soon as possible. As the investigation is
currently underway, Cruz is not allowed in
the D-3 offices. If you see him, please
contact a supervisor.
Fuller resigned that day.
PROCEDURAL BACKGROUND
After exhausting administrative remedies, Fuller sued
the IDOC, Reinke, and Atencio in the District of Idaho.
After the district court granted a defense motion for partial
summary judgment, four claims remained: (1) a Title VII
hostile work environment claim against the IDOC; (2) a Title
VII gender discrimination claim against the IDOC; (3) a
42 U.S.C. § 1983 claim alleging equal protection violations
against Reinke and Atencio; and (4) an intentional or
negligent infliction of emotional distress claim against
Atencio.
The parties filed cross-motions for summary judgment
on these four claims. The district court granted the
defendants’ motion. The court rejected Fuller’s hostile work
environment claim on the grounds that the rapes occurred

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outside the workplace and that the IDOC had taken remedial
action. Fuller timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291, and we
review the district court’s grant of summary judgment de
novo. Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th
Cir. 2005). “[W]e must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the substantive law.” Id.
(quoting Ray v. Henderson, 217 F.3d 1234, 1239–40 (9th
Cir. 2000)); see also Fed. R. Civ. P. 56(a).
We recently explained in a case involving a hostile work
environment claim that “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.” Zetwick v. Cty.
of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (internal quotation
marks omitted). In assessing whether a genuine issue of
material fact exists for trial, we do not weigh the evidence,
nor make factual or credibility determinations. Id. “[W]here
evidence is genuinely disputed on a particular issue—such
as by conflicting testimony—that issue is inappropriate for
resolution on summary judgment.” Id. (internal quotation
marks omitted). And, “where application of incorrect legal
standards may have influenced the district court’s
conclusion, remand is appropriate.” Id. at 442.
DISCUSSION
Title VII of the Civil Rights Act of 1964 prohibits
employer discrimination on the basis of sex regarding
“compensation, terms, conditions, or privileges of

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employment.” 42 U.S.C. § 2000e-2(a)(1). The statutory
prohibition extends to the creation of a hostile work
environment that “is sufficiently severe or pervasive to alter
the conditions of the victim’s employment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation
marks omitted). To prevail on a hostile work environment
claim, an employee must show that her employer is liable for
the conduct that created the environment. Little v.
Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir.
2002).
A. Hostile work environment.
A hostile work environment occurs when an employee
1) “was subjected to verbal or physical conduct of a sexual
nature, 2) this conduct was unwelcome, and 3) this conduct
was ‘sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.’” Fuller v. City of Oakland, 47 F.3d 1522,
1527 (9th Cir. 1995) (quoting Ellison v. Brady, 924 F.2d
872, 875–76 (9th Cir. 1991)). “The working environment
must both subjectively and objectively be perceived as
abusive,” and the objective analysis is done “from the
perspective of a reasonable” woman. Id.
In determining whether a work environment is
sufficiently hostile, the court evaluates the totality of 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.” Little, 301 F.3d at 966 (quoting Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001) (per
curiam)). While “‘simple teasing, offhand comments, and
isolated incidents (unless extremely serious)’ are not
sufficient to create an actionable claim under Title VII . . .

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the harassment need not be so severe as to cause diagnosed
psychological injury.” Reynaga v. Roseburg Forest Prods.,
847 F.3d 678, 687 (9th Cir. 2017) (alteration omitted)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). “It is enough ‘if such 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 in her
position.’” Id. (quoting Steiner v. Showboat Operating Co.,
25 F.3d 1459, 1463 (9th Cir. 1994)).
Fuller argues that the IDOC’s reactions to the rapes—
effectively punishing her for taking time off, while both
vocally and financially supporting her rapist—created a
hostile work environment. The issue is whether an
objective, reasonable woman would find “her work
environment had been altered” because the employer
“condoned” the rape “and its effects.” Little, 301 F.3d at
967–68. 6 Viewing the facts in the light most favorable to
Fuller, we hold that Fuller has raised triable issues of fact as
to the existence of a hostile work environment. 7
When Fuller reported her rapes, Harvey told her “that
Cruz had a history of this kind of behavior” and “he knew of
several instances” of misconduct by Cruz. But, nonetheless,
Harvey almost immediately thereafter told District 3 staff to
“feel free” to “give [Cruz] some encouragement” and that he
“hate[d]” that Cruz “cannot come to the office until the
6

It is undisputed that Fuller subjectively perceived her work
environment as hostile.
7

Fuller also alleged that the rapes created a hostile work
environment. We affirm the district court’s grant of summary judgment
to the defendants as to that claim in the memorandum disposition filed
today.

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investigation is complete.” This e-mail came on the heels of
Harvey’s previous statement to staff that he looked forward
to Cruz returning quickly. Fuller was privy to both of those
announcements, in which her supervisor publicly supported
an employee whom he knew was accused of raping two
women and sexually harassing several others. 8
Fuller was aware that IDOC supervisors were
communicating with Cruz, offering him support during his
suspension. And, although Fuller was interviewed by IDOC
investigators in September, and the agency had concluded
by late October that he should be terminated, no disciplinary
action was taken until after Fuller resigned. As far as Fuller
knew, Cruz might return to work any day.
When Fuller raised concerns about her safety should
Cruz return to the workplace, Harvey and Atencio
emphasized that Cruz was “still our employee,” and that they
did not want a “stigma hanging over” him in the event “the
allegations were proven untrue.” Therefore, she reasonably
could have suspected that the IDOC had exonerated Cruz,
and that he would soon return to work.
In light of the severity of the sexual assaults on Fuller,
documented by the photographs seen by the IDOC
supervisors, a reasonable juror could find that the agency’s
8

The IDOC’s knowledge of previous sexual harassment complaints
against Cruz, “while alone insufficient to create a hostile work
environment, “is relevant and probative of [the IDOC’s] general attitude
of disrespect toward [its] female employees.” Zetwick, 850 F.3d at 445
(quoting Heyne v. Caruso, 69 F.3d 1475, 1479–81 (9th Cir. 1995)).
Because Fuller learned after she was raped that the IDOC was aware of
Cruz’s “history of this kind of behavior,” she reasonably could have
believed that the IDOC would continue to support Cruz at the expense
of its female employees.

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public and internal endorsements of Cruz “ma[de] it more
difficult for [Fuller] to do her job, to take pride in her work,
and to desire to stay in her position.” Reynaga, 847 F.3d at
687 (quoting Steiner, 25 F.3d at 1463). A reasonable woman
in Fuller’s circumstances could perceive the repeated
statements of concern for Cruz’s well-being by supervisors
as evincing their belief that Fuller was lying or, perhaps
worse, as valuing Cruz’s reputation and job over her safety.
This conclusion is reinforced by the fact that Harvey and
Atencio held important supervisory positions. See Zetwick,
850 F.3d at 445 (emphasizing “the potentially greater impact
of harassment from a supervisor”).
The repeated endorsements of Cruz were not “simple
teasing, offhand comments, and isolated incidents,” or
ordinary workplace interactions. Faragher, 524 U.S. at 788
(citation and internal quotation marks omitted). The
decision to publicly support an employee accused of raping
another employee was “humiliating” and potentially
“physically threatening” to Fuller, not “a mere offensive
utterance.” Id. at 787–88. A reasonable juror could credit
Fuller’s statements that Harvey’s e-mail was “completely
insulting” to her, and that she felt the IDOC had given no
“assistance for [her] as a victim” of a rape which “impaired
[her] ability to live normal, sleep normal, or feel safe.”
These facts raise a genuine dispute as to whether the work
environment was “sufficiently hostile” to violate Title VII.
Little, 301 F.3d at 966.
Other evidence, while perhaps not sufficient by itself to
support Fuller’s Title VII claim, supports the conclusion that
a reasonable woman could perceive a hostile work

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environment at the IDOC. 9 Atencio denied Fuller’s request
for paid administrative leave to recover from her rapes in an
e-mail in which he copied Hartz, who was not the assigned
HR representative, despite knowing that Hartz had a
previous romantic relationship with Cruz. Fuller produced
evidence that she was “forced to return to work against” her
therapist’s and doctor’s recommendations, while her rapist
was granted paid administrative leave. Fuller also expressed
concern about her co-workers’ hostility toward her for
missing work, blaming Harvey’s e-mail, which failed to
divulge why Cruz was on leave.
“While each of these incidents may not in itself be
sufficient to support a hostile work environment claim, their
cumulative effect is sufficient to raise material issues of fact
as to whether the conduct was so severe or pervasive to alter
the conditions of the workplace.” Arizona ex rel. Horne v.
Geo Grp., Inc., 816 F.3d 1189, 1207 (9th Cir. 2016), cert.
denied, 137 S. Ct. 623 (2017); see also Zetwick, 850 F.3d at
444 (requiring consideration of “the cumulative effect of the
conduct at issue to determine whether it was sufficiently
‘severe or pervasive’”). The defendants do not contest that
these actions occurred. Rather, they disagree with Fuller’s
interpretation of events, arguing that the IDOC was
supportive of Fuller after the rapes. But, at the summary
judgment stage, we ask only whether “a reasonable juror
drawing all inferences in favor of [Fuller] could return a
9

As we note in the memorandum disposition discussing Fuller’s
other claims, the denial of her paid leave request does not itself violate
Title VII. Co-worker ostracism alone is also insufficient to violate the
statute. See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir.
2000). However, these facts are part of “the totality of the
circumstances” that we must consider in evaluating whether a reasonable
woman would perceive her workplace environment as hostile. See
Zetwick, 850 F.3d at 444.

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verdict in [her] favor;” we do not “weigh the evidence” or
resolve whether the employer’s actions were more
supportive than discriminatory. Zetwick, 850 F.3d at 441
(internal quotation marks omitted).
The IDOC’s actions were less drastic than those of the
employer in Little, who advised the plaintiff to drop her rape
complaint, and when she did not, reduced her pay and fired
her. 301 F.3d at 964–65. But, a reasonable juror could
nonetheless conclude that the IDOC “effectively condoned”
the rapes. 10 Id. at 967–68. Fuller was forced to return,
before she had recovered from her rapes, to a workplace run
by supervisors who showed public support for her rapist,
eagerly anticipated his return, and continued to pay him
while denying her paid leave. In contrast, the employer in
Brooks removed the alleged harasser from the workplace “as
soon as his misdeeds”—an isolated instance of fondling
which the court found not “severe”—were discovered and
took no actions which could be perceived as supportive of
the harasser or indicative that he might return. 229 F.3d at
921–22, 924, 926. Like the victim in Little, Fuller “was
victimized by three violent rapes,” and a reasonable juror
could find that her employer thereafter reacted in ways that
“allowed the effects of the rape[s] to permeate [her] work
environment and alter it irrevocably.” 301 F.3d at 967.
A finder of fact may ultimately conclude, as does our
dissenting colleague, that the IDOC acted reasonably when
10

It is not necessary that the IDOC either intended to discriminate
or knew that its conduct created a hostile work environment. Reynaga,
847 F.3d at 687 (explaining that “hostility need not be directly targeted
at the plaintiff to be relevant to his or her hostile work environment
claim”); EEOC v. Nat’l Educ. Ass’n, 422 F.3d 840, 844–45 (9th Cir.
2005) (concluding that harassers need not intend to discriminate).

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confronted with a difficult situation. Today we conclude
only that, viewing the evidence in the light most favorable to
Fuller, a reasonable trier of fact could also find that the
IDOC’s actions were sufficiently severe or pervasive to
create a hostile work environment. 11
B. Employer liability.
“An employer may be held liable for creating a hostile
work environment either vicariously (i.e., through the acts of
a supervisor) or through negligence (i.e., failing to correct or
prevent discriminatory conduct by an employee).” Reynaga,
847 F.3d at 688. Fuller argues that the IDOC is vicariously
liable for the hostile work environment created by its
supervisors’ responses to her rapes. The IDOC does not
dispute that Harvey, Atencio, and Reinke were
“supervisors.” See id. at 689 (defining supervisor as “a
person who can take tangible employment actions against an
employee”).
Nor does the IDOC dispute that the
supervisors’ actions here were within the scope of their
employment. 12 See Faragher, 524 U.S. at 807–08. Thus, if
11

The dissent claims that we are condemning “the IDOC’s refusal
to denigrate Cruz merely because he was accused of wrongdoing.”
Dissent at 46. Incorrect. We hold only that a reasonable juror could find
that the IDOC’s decision to support Cruz, both publically and internally,
after Fuller reported that he raped her, contributed to a hostile work
environment—whether or not the IDOC reasonably decided not to
disclose the sealed protective order or publicize the allegations against
Cruz before they were proven.
12

The IDOC argues that Fuller must demonstrate negligence by the
agency, rather than seek to impose vicarious liability for the actions and
omissions of its supervisory employees. But, the cases it cites involve
harassment by co-workers or non-employees, not the creation of a hostile
work environment by supervisors. See Little, 301 F.3d at 968 (discussing
when “employers are liable for harassing conduct by non-employees”);

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a jury finds that the IDOC supervisors created a hostile work
environment, the IDOC would also be liable.
C. The Dissent.
The dissent is flawed in two important respects. First, it
ignores that, in reviewing the grant of summary judgment,
we must take all the facts and reasonable inferences in favor
of Fuller. Second, in concluding that Fuller did not suffer
discrimination “because of sex,” the dissent takes an
improperly narrow view of the inferences that can
reasonably be drawn from the facts actually in the record.
(1) Improper summary judgment analysis.
The dissent criticizes us for drawing all inferences from
the evidence in the light most favorable to Fuller. Dissent at
25–27. But, that is precisely our judicial duty at the
summary judgment stage. “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . . The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 252, 255 (1986).
The dissent repeatedly ignores this directive. For
example, it claims to accept Fuller’s sworn testimony that
Cruz raped her, but then emphasizes that “Cruz has never
Ellison, 924 F.2d at 881–82 (setting forth liability standard “for sexual
harassment by co-workers” and explicitly distinguishing “employer
liability for a hostile environment created by a supervisor”); Brooks,
229 F.3d at 924 (analyzing whether employer can be liable for “an
isolated incident of harassment by a co-worker”). We recently
emphasized the distinction between these two forms of liability in
Reynaga, 847 F.3d at 688–89.

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been charged or convicted” of the rapes and highlights that
the relationship with Cruz was once consensual. Dissent at
27–28 & n.4. Similarly, the dissent purports that “the IDOC
investigated and addressed each of” the prior sexual
harassment incidents involving Cruz adequately, when in
fact the record evidence on this point is far from undisputed.
Compare Dissent at 29–30 & n.6 (deeming evidence as
“unsubstantiated complaints”) with Atencio Deposition at
36, Harvey Deposition at 52 (Atencio expressing concern
about Cruz’s behavior and asking Harvey to “keep an eye on
him,” but taking no disciplinary action or making “any sort
of report” of the allegations), Harvey Deposition at 239
(Harvey testifying that Atencio never directed him to “make
any report to HR or [the Office of Professional Standards]”
(OPS) about Davila and McCurry’s allegations against Cruz
and that he was not aware of “any informal or formal
discipline that Cruz received as a result of the events”), OPS
Supplemental Investigation Report at 2 (Davila and
McCurry’s supervisor “felt both incidents were
inappropriate” and “was not aware of any disciplinary action
taken against Cruz for these incidents”). Other improper
factual and credibility determinations abound. See, e.g.,
Dissent at 27–28 & n.3 (acknowledging Cruz “received
supportive phone calls . . . even from IDOC supervisors,”
but concluding that Fuller could not possibly perceive such
conversations as evincing support for Cruz because they
occurred only “on a couple of occasions”), 32& n.9
(emphasizing that Fuller was forced to return to work only
by “her own assessment of her financial situation,” but
discounting evidence that Fuller felt she was treated poorly
as a rape victim), 34 n.13 (dismissing Fuller’s belief “that
the IDOC had exonerated Cruz” as merely “second-hand
gossip”), 34 (highlighting that “Fuller surreptitiously
recorded” the meeting with IDOC supervisors).

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In concluding that the IDOC’s denial of administrative
leave could not have contributed to a hostile work
environment because it was not itself discriminatory, the
dissent ignores undisputed record evidence about what the
IDOC actually told Fuller—that her situation was not
“unusual” enough to warrant paid leave, although her male
rapist was entitled to such leave and his colleagues’ support.
See Dissent at 32 n.9, 33 n.12, 35 n.15, 41 n.17. And indeed,
perhaps most tellingly, the dissent brushes over and
deemphasizes the critical lines from Harvey’s comments
about Cruz, both in the initial staff meeting and in the later
email to the staff, sent after Fuller reported her rapes. See
Dissent at 27 (describing Harvey’s comment that the IDOC
“looked forward to [Cruz’s] coming back very soon” as
made “in passing”), 30 (discounting lines “if you want to talk
to him, give him some encouragement, etc., please feel free”
and “[j]ust as a reminder—and this is always one thing I hate
about these things—he cannot come to the office until the
investigation is complete”) (emphasis added). Yet, as the
dissent correctly notes, “we cannot ignore undisputed
evidence simply because it is unhelpful to” our own view of
the merits. Dissent at 26–27.
At trial, a jury might conclude, as the dissent does, that
the IDOC’s conduct was “proper.” Dissent at 46. But, we
“must adopt the inference that is most favorable to the nonmoving party,” rather than “weigh the merit of [competing]
inferences.” Hauk v. JP Morgan Chase Bank USA, 552 F.3d
1114, 1123–24 (9th Cir. 2009). That the dissent can point to
some irrelevant evidence as “undisputed” does not deem the
inference from other evidence that Fuller was discriminated
against because of her sex to be not “rational or reasonable.”
Dissent at 25–27.

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(2) Incorrect “because of sex” analysis.
The dissent also contends that Fuller presented no
evidence that she was discriminated against “because of” her
sex. Dissent at 39–46. However, that argument, which the
IDOC did not raise, misreads the precedent.
A Title VII plaintiff must prove discrimination “because
of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “The critical issue,
Title VII’s text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not
exposed.” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998) (internal quotation marks omitted).
The Supreme Court has emphasized that a plaintiff is not
confined to a specific “evidentiary route” to meet this
requirement. Id. at 81. Although the dissent correctly notes
potential evidentiary routes that Fuller could have followed
to raise a triable issue of fact as to discrimination because of
her sex, Dissent at 40, her claim does not fail merely for
following a different route than the ones the dissent favors.
See Oncale, 523 U.S. at 80–81 (explaining that “[w]hatever
evidentiary route the plaintiff chooses to follow,” they must
prove discrimination because of sex); EEOC v. Nat’l Educ.
Ass’n, 422 F.3d 840, 844–45 (9th Cir. 2005) (finding
discrimination “because of . . . sex” where “primarily
women were the targets” of employer’s conduct).
In Little, we held that “[b]eing raped is, at minimum, an
act of discrimination based on sex. Thus, the employer’s
reaction to a single serious episode may form the basis for a
hostile work environment claim.” 301 F.3d at 967–68
(citation omitted). The dissent correctly notes that the rape
in Little occurred in the workplace, while the rapes of Fuller
did not. Dissent at 41–43. But, Little directly responds to
the dissent’s legal argument that any disparate treatment of

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a rape victim who was not assaulted in the workplace cannot
be because of sex. Little teaches that when an employer acts
in a way that “effectively condone[s]” or ratifies a rape or
sexual assault and its effects, a jury may reasonably infer that
the employer itself is discriminating “because of sex.”
301 F.3d at 968.
Indeed, “Little [did] not seek relief based on imputed
liability for the rape. Rather, her claim [was] about whether
[her employer’s] reaction to the rape created a hostile work
environment.” Id. at 966. And, while Little’s rape occurred
in the workplace, we found “more significant[]” the fact that
the employer’s “subsequent actions reinforced rather than
remediated the harassment.” Id. at 967. Thus, we held that
a question of material fact arose as to whether the employer’s
actions created a sexually hostile work environment because
it “allowed the effects of the rape to permeate Little’s work
environment and alter it irrevocably.” Id.
Thus, contrary to the dissent’s assertion, Little did not
confine its holding to an employer’s response to rapes that
themselves “qualify as workplace conduct.” Dissent at 43.
Nor would such a holding make sense: if an employer, acting
in the workplace, discriminates against a female rape victim
in the conditions of her employment by condoning her rape
and its effects, that employer should not escape Title VII
liability for its discrimination merely because a rapist
employee conducted his assault off the premises. See
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986) (holding that Title VII “evinces a congressional intent
to strike at the entire spectrum of disparate treatment of men
and women in employment” (internal quotation marks
omitted)). Although we decline to opine on whether other
circumstances may constitute “condoning or ratifying” a
rape, we find that Fuller has raised a question of material fact

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as to whether the IDOC did so here. And, contrary to the
dissent’s assertion, we are aware of no case requiring proof
of a tangible adverse employment action—such as silencing
an employee’s complaint, cutting her pay, or firing her— in
a hostile work environment claim, let alone in one based on
an employer’s reaction to a rape. Compare Dissent at 43–44
with Meritor, 477 U.S. at 64 (holding that a hostile work
environment violates Title VII because “the language of
Title VII is not limited to ‘economic’ or ‘tangible’
discrimination”). 13
Furthermore, an inference of discrimination because of
sex is even more reasonable where, as here, the record also
contains evidence of Fuller’s male supervisors’ solicitous
treatment of the man whom they knew may have raped
Fuller and their less solicitous treatment of the woman who
reported the rape. When “[t]he record reveals at least a
debatable question as to the objective differences in
treatment of male and female employees, and strongly
suggests that differences in subjective effects were very
different,” summary judgment is inappropriate. EEOC,
422 F.3d at 845–46.
To the extent that the dissent argues that the record does
not permit the inference that the IDOC’s treatment of Fuller
would have been any better had Fuller been a man, or that
13

The dissent concedes that an employer’s actions undertaken
“because of a rape (whether in or outside of the workplace) might give
rise to a reasonable inference of discrimination because of sex.” Dissent
at 43–44. We agree. But, an equally reasonable inference of
discrimination because of sex surely also arises when an employer,
knowing that a female employee was sexually assaulted by a male coworker, nonetheless tells its employees that it looks forward to the
rapist’s return to work and encourages them to contact him with
messages of support.

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any such inference would be based on “overbroad
generalizations” based on gender, see Dissent at 45 n.20, it
ignores reality. We must view the evidence in light of “the
different perspectives of men and women.” Ellison,
924 F.2d at 878. “[W]omen are disproportionately victims
of rape and sexual assault,” and, accordingly, “women have
a stronger incentive to be concerned with sexual
behavior. . . . Men, who are rarely victims of sexual assault,
may view sexual conduct in a vacuum without a full
appreciation of the social setting or the underlying threat of
violence that a woman may perceive.” Id. (footnote
omitted). Therefore, a jury armed with “[c]ommon sense,
and an appropriate sensitivity to social context” could
reasonably conclude that the actions of Fuller’s supervisor—
siding with Cruz, her alleged rapist, over her—were because
of her sex. Oncale, 523 U.S. at 82. It is up to a jury, not us,
to decide whether that plausible inference is the best one to
draw from this record.
CONCLUSION
We vacate the summary judgment in favor of the IDOC
and remand for a trial on Fuller’s Title VII hostile work
environment claim. Costs on appeal are awarded to
Plaintiff-Appellant.

IKUTA, Circuit Judge, dissenting:
An employer is liable for sexual harassment under Title
VII only if it engages in discriminatory conduct that alters
the “terms, conditions, or privileges of employment, because
of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Courts may
conclude that abusive conduct is “discriminat[ion] . . .
because of . . . sex,” id., based on evidence that “members of

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one sex [were] exposed to disadvantageous terms or
conditions of employment to which members of the other
sex [were] not exposed,” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J.,
concurring)). Because there is no evidence in the record that
the Idaho Department of Corrections (IDOC) treated any
female employee differently because of her sex, it is
impossible to point to any such discrimination here.
Nevertheless, the majority concludes that the IDOC may
have violated Title VII because it abstained from damaging
an employee’s reputation while an investigation into the
employee’s alleged misconduct was still pending. In
reaching this conclusion, the majority ignores Supreme
Court precedent directly on point and writes “because of . . .
sex” out of the statute. See id. at 80–81. I dissent. 1
I
The threshold flaw in the majority’s analysis is its
misapprehension of the summary judgment standard.
A
A party seeking summary judgment must demonstrate
that “there is no genuine dispute as to any material fact” and
that the party “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A material fact is one that “might
affect the outcome of the suit under the governing law,” and
a genuine dispute is one for which “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v.
1

I concur in the concurrently filed memorandum disposition that
affirms the district court’s entry of summary judgment in the IDOC’s
favor on the remaining claims. See Fuller v. Idaho Dep’t of Corr., — F.
App’x — (9th Cir. 2017).

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We draw
inferences “in the light most favorable to the nonmoving
party,” but only if the inferences are rational or reasonable.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987). “Where the record taken
as a whole could not lead a rational trier of fact to find for
the non-moving party,” even if the jury credited the
nonmoving party’s evidence and drew all reasonable
inferences in the nonmoving party’s favor, then “there is no
genuine issue for trial” and the moving party is entitled to
summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted).
Taking this record as a whole and drawing all reasonable
inferences in favor of Fuller, no reasonable jury could
conclude that the IDOC engaged in “discriminat[ion] . . .
because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), a necessary
element of Fuller’s Title VII claim. Because no reasonable
jury could return a verdict in Fuller’s favor, the IDOC is
entitled to judgment as a matter of law. Rather than consider
the record as a whole, however, the majority focuses only on
those circumstances favoring Fuller. 2
This is a
misapprehension of the summary judgment standard; we
must credit Fuller’s evidence where a conflict exists (there
are no such conflicts in this case), and we must draw all
reasonable inferences in her favor, but we cannot ignore
undisputed evidence simply because it is unhelpful to her
2
Indeed, the majority seems to think that it is an error to
acknowledge undisputed facts that are not helpful to Fuller. See, e.g.,
Maj. op. at 18–19 (criticizing the dissent for noting, among other
undisputed facts, that Cruz has not been charged or convicted of rape,
that Fuller had been in a consensual relationship with Cruz, and that
Fuller had surreptitiously recorded the meeting with IDOC supervisors).

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case or make inferences that are unreasonable. Because the
majority fails to recite all the relevant, undisputed facts (and
therefore mistakes unreasonable inferences for reasonable
ones), I provide them here.
B
Fuller and Herbt Cruz first met while coworkers at the
IDOC. A few months after their first meeting, they
embarked on a voluntary romantic relationship. By all
accounts, their relationship was ordinary and functional from
its genesis through the late summer of 2011. But events in
August and September of that year tore the relationship apart
and set this lawsuit into motion.
The key facts for this story begin, in large part, on
August 15, 2011. That was the day the IDOC placed Cruz
on paid administrative leave after learning that the Canyon
County Sheriff’s Office was investigating allegations that he
raped a woman identified as “J.W.” That same day, IDOC
supervisor Kim Harvey announced at a staff meeting that
Cruz was on administrative leave due to an investigation. He
also said, in passing, that he hoped things would be cleared
up so that Cruz could return to work. Fuller, who was still
in a romantic relationship with Cruz at the time, was in
attendance at that staff meeting. She was unaware,
however, of the nature of the allegations against Cruz.
While Cruz was on administrative leave, he received
supportive phone calls from his friends, coworkers, and even
from IDOC supervisors. Fuller was aware of these contacts;
she and Cruz were still dating, so she would overhear Cruz
on the phone, or Cruz would simply tell her about the calls.
She also knew that Cruz “had various friends that worked for
the department” who were reaching out to him. As for the

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IDOC supervisors, all Fuller ever knew was that Cruz spoke
with them “on a couple of occasions.” 3
It was not until late August and early September that
Fuller and Cruz’s relationship turned sour. In the span of
those few weeks, Fuller alleges that Cruz raped her on three
different occasions. 4 Each incident occurred while the two
were away from work and on their own private time.
So how did this become a workplace harassment issue?
The IDOC learned of the alleged rapes in early September
2011 when Fuller’s friend, Renee Bevry, showed Harvey
photographs of Fuller’s bruises and said “you need to be
aware of this.” Harvey immediately notified the IDOC’s
professional standards office and local law enforcement of
this further allegation that Cruz had engaged in serious
misconduct, and he then met with Fuller to find out what
happened and to encourage her to report her allegations to
the sheriff. When Fuller agreed, Harvey accompanied her to
an interview with law enforcement to report her accusations,
and he took her to lunch the day she reported. At that lunch,
Harvey mentioned that there had been prior accusations of
misconduct against Cruz, but did not provide any further
information. Afterwards, Harvey escorted Fuller home and
searched her house before she entered to make sure no one
was inside. Once Fuller had collected some personal items,
3

Although the majority states that Fuller was aware that IDOC
supervisors were “offering [Cruz] support during his suspension,” Maj.
op. at 13, there is nothing to this effect in the record.
4

For purposes of summary judgment, we assume the truth of this
allegation, which the IDOC neither denies nor concedes. It is undisputed
that Cruz has never been charged or convicted of any misconduct with
Fuller or J.W.

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he then took her to Bevry’s home, where she felt safer
staying.
As Harvey correctly indicated to Fuller, Cruz had been
on the receiving end of complaints more than once before. 5
The record shows that the IDOC investigated and addressed
each of these complaints. In early 2003, Sandra Martin, an
IDOC employee, alleged that Cruz had shown romantic
interest in her by abandoning his post to follow her into the
recreation yard where she was monitoring inmates. Martin
also accused Cruz of taking her car keys. Martin made clear
to the IDOC that she perceived this as sexual behavior, and
the IDOC investigated the allegations and met with all
concerned parties. Martin eventually sued the IDOC in
2006, alleging sexual harassment by Cruz and another male
employee, but the lawsuit was resolved by final judgment in
the IDOC’s favor. See Martin v. Idaho Dep’t of Corr., No.
06-cv-55, 2007 WL 1667597 (D. Idaho June 7, 2007). In
2010, Letticia Davila, an IDOC employee, expressed
concern about reports that Cruz might be transferred to her
office. Her concern arose from a long ago training session
in which Cruz portrayed an offender attempting to take over
Davila’s office by force. Davila stated that Cruz took “his
role-playing too seriously,” and blocked her office door
when she tried to leave; he moved out of the way, however,
when she threatened to knee him. Davila stated she did not
perceive Cruz’s conduct as sexual. She also told the IDOC
that in 2008, Cruz had behaved inappropriately with one of
her coworkers by putting a hand on the woman’s knee.
When interviewed by the IDOC, the coworker stated that, in
her view, no sexual harassment had occurred and that her
5
Fuller admits that she never witnessed Cruz sexually harass a
female employee at the IDOC.

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interaction with Cruz was “not a big deal.” Because the
investigation disclosed no misconduct, the IDOC did not
discipline Cruz. 6 However, the IDOC decided not to transfer
Cruz to the office where Davila worked, and Harvey told his
staff to “watch [Cruz] and see if there’s any further incidents
that you think are inappropriate.”
The day after Fuller reported her allegations to the
police, she obtained the first of several confidential civil
protection orders prohibiting Cruz from being within 1,000
feet of Fuller or her workplace. That same day, Harvey sent
an email to IDOC staff in which he informed all staff
members that Cruz “cannot come to the office until the
investigation is complete and cannot “talk to anyone in the
Department about the investigation,” although the staff was
free to talk to him and “give him some encouragement.” 7

6
The majority conflates a failure to discipline with a failure to
investigate, Maj. op. at 19, and argues that the complaints against Cruz
are probative of a general disrespect for woman at the IDOC, id. at 13
n.8.
This misrepresents our precedent; although actual sexual
harassment of others can be probative of attitudes toward women,
unsubstantiated complaints are not. Compare id. (focusing on
“knowledge of previous sexual harassment complaints”), with Zetwick v.
County of Yolo, 850 F.3d 436, 445 (9th Cir. 2017) (focusing on “[t]he
sexual harassment of others” that has been “shown to have occurred”).
7

The email stated in full:
Just an update on Cruz. I talked to him. He sounds
rather down, as to be expected. Said he is trying to
stay busy. Just as a reminder—and this is always one
thing I hate about these things—he cannot come to the
office until the investigation is complete. Nor can he
talk to anyone in the Department about the
investigation. So, if you want to talk to him, give him
some encouragement etc., please feel free. Just don’t

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Around this same period, Fuller took some time away
from work. She did not need to request this time off, because
the IDOC told her that she “could take as much time as [she]
needed.” In addition, Harvey told Fuller that he would
investigate whether Fuller qualified for pay during her leave.
In mid-September, IDOC Deputy Chief Henry Atencio
informed Fuller via email that the IDOC would not offer
Fuller paid administrative leave, based on the IDOC’s
longstanding practice to extend paid leave only “when there
is departmental action against the employee, such as an
investigation.” In that same email, Atencio told Fuller that
she was free to use her sick leave and vacation balances.
After Atencio denied Fuller’s request for paid administrative
leave, she applied for leave under the Family and Medical
Leave Act, and the IDOC promptly approved that request.
While Fuller was on leave, her supervisors at the IDOC
were working towards ways to accommodate her situation.
For example, on September 15—the day Fuller had to appear
in court to renew her confidential civil protection order—
Harvey called to check in with her. During that call, Harvey
told Fuller “that if she is not comfortable with coming back
to work” at her division, Harvey “would do what [he] could
to help her transfer.” Later in that month, Harvey continued
to try to check in with Fuller, but to no avail. He “attempted
to contact her by phone, leaving messages that [were] not
returned,” and he “even went by her house[,] . . . but she was
not there.” Atencio and the other supervisors were aware of

talk about the investigation. At this point, I honestly
don’t know the status of it.

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Harvey’s efforts, which he communicated to them via
email. 8
In late October, Fuller emailed Atencio to inform him of
her reluctant decision to return to work. In her email, she
stated it was a “sad day” that Cruz “gets to sit at home and
collect a check at the tax payers expense” while she was
denied paid administrative leave. Although she was
“appalled by the way this situation has been handled,” she
stated that she had “exhausted all leave and am now forced
to return to work against my Doctor, Counselor, and
Attorney’s recommendation.” 9 Because Fuller’s doctor
certified that Fuller was “unable to concentrate and
perform,” suffered from “severe anxiety,” and was “unsafe
to carry [a] weapon,” the IDOC placed her on modified duty.
Upon her return, Fuller found the IDOC to be a “completely
uncomfortable work environment,” in which her coworkers
ostracized her because they believed she had been “faking”
a medical issue. But the coworkers knew nothing about her
alleged rapes. Indeed, no one made any comments about the
rapes (or sexually suggestive comments more generally),
8

Fuller faults the IDOC because “Atencio did not ask Harvey to
check on Fuller while on leave, in direct contrast to directing him to
regularly check on Cruz.” This attempt to impute discriminatory animus
falls flat in light of Atencio’s knowledge that Harvey was checking on
Fuller of his own volition.
9

Although Fuller’s email expresses her frustration over the denial
of paid administrative leave, which the majority agrees was not unlawful,
the email cannot reasonably be interpreted to mean that Fuller was forced
to return to work by anything but her own assessment of her financial
situation, i.e., she could not afford not to return. Contra Maj. op. at 15
(claiming that Fuller has “evidence” that she was “forced to return to
work”). There is no evidence in the record that the IDOC ever instructed
or required Fuller to return to work.

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and no one suggested that Fuller had done anything
inappropriate.
On November 6, a little over two weeks after her return,
Fuller submitted a letter to Atencio outlining why she
believed that the IDOC should reverse course and grant her
paid administrative leave. She identified eight reasons:
(1) she had incurred significant expenses in retaining an
attorney to obtain her confidential civil protection orders;
(2) it was “unbecoming” that Cruz, who was suspended
pending a disciplinary investigation, receive paid leave but
not her; (3) the IDOC was paying Cruz even though policy
provided for unpaid suspension when an employee was
indicted on felony charges;10 (4) Cruz was being extended a
“courtesy”; (5) the IDOC failed in its obligation to provide
Fuller with information about filing a harassment
complaint;11 (6) Cruz was a threat to safety; (7) paid
administrative leave was discretionary;12 and (8) “the
department conducted an investigation which found Mr.

10
As noted previously, it is undisputed that Cruz has never been
criminally charged in relation to J.W.’s or Fuller’s allegations, so this
ground was premised on a misapprehension of fact. See supra, note 4.
11

As we hold today, no underlying workplace sexual harassment
occurred because Fuller’s rapes were not related to the workplace. See
Fuller, — F. App’x at —; Maj. op. at 12 n.7. It follows that the IDOC
had no such obligation.
12

We hold today that Fuller has no evidence that the IDOC’s denial
of her paid leave request was anything other than the lawful application
of a neutral policy. See Fuller, — F. App’x at —; Maj. op. at 15 n.9.

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Cruz innocent of a crime.”13 This letter prompted a meeting
between Fuller and IDOC officials on November 10.
At the November 10 meeting, which Fuller
surreptitiously recorded, Atencio explained the IDOC’s
neutral policy for extending paid administrative leave only
to employees (like Cruz) who were under investigation.
Fuller argued that the Standard Operating Procedure “clearly
states” that the IDOC could award paid leave “under unusual
circumstances.”14 Atencio acknowledged that the manual
13

Fuller believed that the IDOC had exonerated Cruz based on a
statement by the county sheriff, who in turn had allegedly heard the
information from an unnamed source. Or, put more simply, this was
second-hand gossip. There is no evidence that an IDOC official ever
made any representation to Fuller that Cruz had been, or would be,
exonerated.
14

The IDOC’s Standard Operating Procedure Manual provided:
5. Paid Administrative Leave
The director of the IDOC, in consultation with the
director of HRS and the applicable division chief, may
grant paid administrative leave under the following
conditions:
• When the employee is being investigated;
• When the employee is in the due process procedure
of a disciplinary action;
• When the governor, manager, or designees declare
an IDOC facility closed or inaccessible because of
severe weather, civil disturbances, loss of utilities,
or other disruptions;
• When a manager (or designee) deems it necessary
due to an unusual situation, emergency, or critical

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contained such language, but stated that “in discussing this
with the leadership, and with HR, we don’t think that the
situation rises to that point where it’s unusual, and would
warrant leave with pay.”15
Later in the meeting, Fuller requested that her IDOC
coworkers be informed of her confidential civil protection
order against Cruz. Atencio responded that, although he
knew that Fuller would find it “distasteful,” the IDOC could
not comply with that request because “Cruz is still our
employee and we have to be cautious of his rights.” But
Atencio proposed a compromise: If the legal team verified
that it was lawful to do so, the IDOC would send a reminder
email to employees that Cruz was under investigation and
not allowed at IDOC premises and that employees should
contact a supervisor immediately if Cruz comes to the IDOC
workplace. Atencio also informed Fuller that the IDOC
would work with her to arrange for days when Fuller could

incident that could jeopardize IDOC operations, the
safety of others, or could create a liability situation
for the IDOC; or
• When approved in advance by the governor (or
designee).
15

The majority holds that Atencio’s statement contributed to a
hostile work environment because he “actually told Fuller” that “her
situation was not ‘unusual’ enough to warrant paid leave, although her
male rapist was entitled to such leave and his colleagues’ support.” Maj.
op. at 20 (emphasis in original). As the majority acknowledges, there is
no evidence that the IDOC’s limitation on paid administrative leave was
anything other than a policy neutrally applied to all staff. See Maj. op.
at 15 n.9 (noting our unanimous holding that the denial of paid
administrative leave did not violate Title VII). Verbalizing the neutral
policy does not show discrimination on the basis of sex.

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take leave with pay to attend court hearings “and have time
afterwards to recover.”
As had been proposed at the November 10 meeting,
Harvey sent an email on November 16 reminding employees
that Cruz “is on leave pending an investigation” and “not
allowed in the [IDOC] offices.” Employees were further
instructed to “contact a supervisor” if Cruz was seen on
premises. The supervisors were aware of Fuller’s civil
protection order, Fuller knew they were aware of the order,
and the supervisors knew to contact police if Cruz came to
the IDOC’s premises. Fuller later explained that if the IDOC
had sent an email notifying the staff that there was a civil
protection order against Cruz, she “never would have
resigned.”
At the time Fuller resigned on November 16, IDOC
supervisors were in the process of terminating Cruz’s
employment. By November 8, three supervisory IDOC
officials had concluded that Cruz was responsible for
multiple misconduct violations, including ones relating to
Fuller’s allegations. In late December, Cruz was formally
notified that the IDOC was contemplating his termination,
and he resigned on January 9, 2012.
II
The question in this case is whether these circumstances
are sufficient, as a matter of law, to create a sexually hostile
work environment. In holding that they are, the majority has
lost sight of the key elements of Title VII liability, and
effectively holds that an employer can be found liable even
in the absence of evidence that any workplace conduct is
“discriminat[ion] . . . because of . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1).

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A
Title VII of the Civil Rights Act of 1964 makes it “an
unlawful employment practice for an employer . . . to
discriminate against any individual with respect to . . . terms,
conditions, or privileges of employment, because of such
individual’s . . . sex.” Id.16 This prohibition does not
expressly ban “sexual harassment,” but the Supreme Court
has held that discriminatory conduct includes sexual
harassment, Meritor, 477 U.S. at 64 (1986), and that such
conduct can alter the terms and conditions of employment if
it is “sufficiently severe or pervasive” that it creates “an
abusive working environment,” Harris, 510 U.S. at 21. But
as the statutory language makes clear, the key elements of a
Title VII sexual harassment claim are (1) that the employer
has engaged in discriminatory conduct (2) that affected the
“terms, conditions, or privileges of employment”
(3) because of such individual’s sex. 42 U.S.C. § 2000e2(a)(1).
In concluding that sexual harassment is discriminatory
conduct, the Supreme Court looked to the EEOC Guidelines,
which define sexual harassment to include both
16

This provision provides in full:
(a) Employer practices
It shall be an unlawful employment practice for an
employer–
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's race, color, religion,
sex, or national origin[.]

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“[u]nwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature,” as
well as claims that are not quid pro quo, namely “so-called
‘hostile environment’ . . . harassment.” Meritor, 477 U.S. at
65. This can include “discriminatory intimidation, ridicule,
and insult,” Harris, 510 U.S. at 21, such as the use of “sexspecific and derogatory terms,” Oncale, 523 U.S. at 80.
In order to affect the terms or conditions of employment,
the discriminatory conduct must be unwelcome and either
severe or pervasive. See Gregory v. Widnall, 153 F.3d 1071,
1074 (9th Cir. 1998) (per curiam). “[T]he work environment
must both subjectively and objectively be perceived as
abusive.” Little v. Windermere Relocation, Inc., 301 F.3d
958, 966 (9th Cir. 2002) (quoting Fuller v. City of Oakland,
47 F.3d 1522, 1527 (9th Cir. 1995)). In making this
determination, “we look ‘at 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.’” Id. (quoting Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)
(per curiam)). We undertake this analysis from the
perspective of “a reasonable woman.” Ellison v. Brady,
924 F.2d 872, 879 (9th Cir. 1991).
When engaging in a hostile work environment analysis,
however, we must remember the Supreme Court’s repeated
admonishment that “Title VII does not prohibit all verbal or
physical harassment in the workplace.” Oncale, 523 U.S. at
80; see also Vance v. Ball State Univ., 133 S. Ct. 2434, 2455
(2013) (“Title VII imposes no ‘general civility code.’”);
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(similar). Rather, a plaintiff must always prove that
complained-of conduct occurred because of the individual’s

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sex. Oncale, 523 U.S. at 80. There are multiple evidentiary
routes a plaintiff can follow to establish this critical element.
“Courts and juries have found the inference of
discrimination easy to draw in most male-female sexual
harassment situations, because the challenged conduct
typically involves explicit or implicit proposals of sexual
activity; it is reasonable to assume those proposals would not
have been made to someone of the same sex.” Id.
Alternatively, where an employer treats men and women
unequally, a trier of fact may infer that the differential
conduct is because of sex. Id. at 80–81 (“A same-sex
harassment plaintiff may also, of course, offer direct
comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.”).
Drawing on Oncale, we have held that where the conduct at
issue “is not facially sex- or gender-specific,” we may
consider “differences in subjective effects” on women,
“along with . . . evidence of differences in objective quality
and quantity,” in “determining whether or not men and
women were treated differently.” EEOC v. Nat’l Educ.
Ass’n, Alaska, 422 F.3d 840, 845–46 (9th Cir. 2005).
Nevertheless, the “main factual question” is whether the
alleged perpetrator’s “treatment of women differed
sufficiently in quality and quantity from his treatment of men
to support a claim of sex-based discrimination.” Id. at 844.
“Whatever evidentiary route the plaintiff chooses to follow,
he or she must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but
actually constituted ‘discrimina[tion] . . . because of . . .
sex.’” Oncale, 523 U.S. at 81.
B
Contrary to the majority, I would hold that Fuller has not
raised a genuine issue of material fact regarding any of the

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three elements of a Title VII claim. There is no triable issue
that the IDOC engaged in unwelcome harassing conduct of
any sort, nor that the IDOC’s conduct created a working
environment so abusive that it altered the terms and
conditions of Fuller’s employment. Cf. Gregory, 153 F.3d
at 1074. But even if there were a triable issue on these two
elements, Fuller’s action would fail because there is not a
shred of evidence to show that any conduct in the workplace
was “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The
majority has no answer to this dispositive flaw, which is fatal
to Fuller’s case.
Although a plaintiff may use many evidentiary routes to
raise an inference of discrimination because of sex, see
Oncale, 523 U.S. at 80, Fuller has no viable route to follow.
A court may infer discrimination because of sex when the
conduct at issue is sexual in nature, but it is undisputed that
Fuller experienced no “[u]nwelcome sexual advances” or
“requests for sexual favors” at the IDOC. 29 C.F.R.
§ 1604.11(a). Nor did Fuller present any evidence of “verbal
or physical conduct of a sexual nature” in the workplace. Id.
There is no evidence that anyone at the IDOC was
“motivated by general hostility to the presence of women in
the workplace,” nor is there “direct comparative evidence”
that Fuller was treated differently from any similarly situated
male. Oncale, 523 U.S. at 80–81. The record is entirely
devoid of evidence that the IDOC engaged in differential
treatment of Fuller because she is a woman. Because Fuller
has failed to raise a genuine issue whether the conduct she
deemed to be abusive was “because of . . . sex,” 42 U.S.C.
§ 2000e-2(a)(1), her claim fails.
Having properly rejected Fuller’s claim that the rapes
were part of the hostile work environment, Maj. op. at 12
n.7, the majority relies primarily on three incidents:

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(1) Harvey’s statement at a staff meeting that he hoped Cruz
could return, and his later email telling employees that they
were allowed to speak to Cruz, id. at 12–13; (2) Harvey’s
comment that Cruz had previously been accused of sexual
harassment, id. at 12–12; and (3) Atencio’s refusal to
disclose Fuller’s confidential civil protection order in favor
of sending a more general email that Cruz was not allowed
at the IDOC pending the completion of his investigation, id.
at 13. While Fuller found this conduct offensive, there is no
evidence in the record to support a claim that the IDOC took
these measures because Fuller is a woman.17
The majority rests its holding on Little v. Windermere
Relocation, Inc., see Maj. op. at 12, but this case provides no
support. The plaintiff in Little worked in business
development to cultivate corporate clients. 301 F.3d at 964.
As part of the plaintiff’s job, the president of her company
directed her to “do whatever it takes” to obtain a Starbucks
account for the firm. Id. To that end, the plaintiff met with
a Starbucks officer on several occasions, including once over
dinner and drinks. Id. After dinner, the plaintiff passed out
17

The other circumstances cited by the majority likewise do not
support any inference of “discriminat[ion] . . . because of . . . sex.”
42 U.S.C. § 2000e-2(a)(1). For instance, the majority cites the phone
calls to Cruz from IDOC supervisors, Maj. op. at 13, but those were
neither improper nor discriminatory. In fact, Fuller does not dispute that
IDOC supervisors checked in on Fuller during her leave as well. Equally
non-discriminatory was the denial of paid administrative leave, Maj. op.
at 15, which we unanimously conclude was not an employment action
taken on account of sex, id. at 15 n.9. The same is true of Fuller’s
ostracization by co-workers, id. at 15, which not even Fuller has
suggested was because of sex. And finally, the majority’s statement that
Fuller was “forced” to return to work, id. at 15, fails in light of the fact
that Fuller undisputedly returned to work because she could not afford
to take any more leave, not because the IDOC required her to return, see
supra, note 9.

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and was raped multiple times by the Starbucks officer. Id.
When the employee reported the rape to the employer, the
company president expressed his displeasure with her report,
reduced her salary, and ultimately “told her it would be best
if she moved on and that she should clean out her desk.” Id.
at 965. We held that the rape was part of the employee’s
work environment because “[h]aving out-of-office meetings
with potential clients was a required part of the job” and
“[t]he rape occurred at a business meeting with a business
client.” Id. at 967. As such, we concluded that the employee
had raised triable issues as to all three elements of a Title VII
hostile work environment claim.
The rape was
“unquestionably among the most severe forms of sexual
harassment”; “[b]eing raped by a business associate, while
on the job, irrevocably alters the conditions of the victim’s
work environment”; and “[b]eing raped is, at minimum, an
act of discrimination based on sex.” Id. at 967, 968.
Little distinguished a prior opinion holding that “a
‘single incident’ of harassment” (in that case, an employee’s
forcing “his hand underneath [a female employee’s] sweater
and bra to fondle her bare breast,” Brooks v. City of San
Mateo, 229 F.3d 917, 921 (9th Cir. 2000)), which was
“followed by immediate corrective action by the employer,”
did not create a hostile work environment because it “was
not sufficiently ‘severe or pervasive.’” Little, 301 F.3d at
967 (citing Brooks, 229 F.3d at 925–26). Little reasoned that
Brooks did not control because in that case, “the harassing
employee was fired,” but in Little, “not only was there no
remediation, the harassment was arguably reinforced by [the
victim’s] employer.” Id. In other words, the foundation for
Title VII liability in Little was the failure to remedy a serious
incident of workplace sexual harassment, coupled with the
employer’s further abusive treatment of the victim by, for

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example, cutting her pay, which “reinforced rather than
remediated the harassment.” Id.
By contrast to Little, Fuller’s rapes were unrelated to her
“employment.” See Fuller, — F. App’x at —; Maj. op. at
12 n.7. Accordingly, Fuller cannot rely on the rapes as
evidence that she suffered a severe form of sexual
harassment on the job, which altered the terms and
conditions of her work environment and constituted
discrimination on the basis of sex. Little neither requires the
IDOC to remedy harassment that occurs outside the context
of work, nor holds that inadequate remediation of such
harassment evinces discrimination because of sex. Thus, as
the IDOC correctly argues, if the rapes do not qualify as
workplace conduct, then there was no sexual harassment in
the workplace. Because no other evidence suggests hostility
towards women or disparate treatment of women, it follows
that Fuller was not harassed “because of . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1).
The majority contends that an employer’s discrimination
against a female employee because the female employee had
been raped could constitute discrimination based on sex,
whether the rape occurred at the workplace or outside the
workplace. Maj. op. at 22. Although Little does not directly
support such a rule,18 harassing conduct undertaken against
a female employee because of a rape (whether in or outside
of the workplace) might give rise to a reasonable inference
of discrimination because of sex and therefore support a
18
Because Little relied on both (1) the plaintiff’s rape “by a business
associate, while on the job” (which Little identified as among the most
severe forms of discrimination based on sex), and (2) the employer’s
response to the rape, the rule we announced in Little is not directly
applicable to situations like Fuller’s. 301 F.3d at 967–68.

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Title VII claim. The majority also argues that when an
employer “effectively condone[s] or ratifies a rape or sexual
assault and its effects,” the employer may be deemed to be
discriminating against the raped or assaulted employee
“because of sex.” Maj. op. at 22 (internal quotation marks
omitted). The majority declines to explain what constitutes
condoning or ratifying a rape, id. at 22–23, but in Little we
held that an employer condoned a workplace rape by
attempting to silence the employee’s complaint, cutting her
pay, and ultimately firing her. 301 F.3d at 965. One can
imagine circumstances where such a response to a nonworkplace rape or assault could constitute discriminatory
conduct based on sex that is so severe and pervasive as to
affect the terms of employment.
Fuller, however, has not created a genuine issue for trial
that any conduct—discrimination against an employee
because the employee was raped, or conduct condoning or
ratifying a rape—occurred here. By contrast to Little, the
IDOC never attempted to silence Fuller’s complaint, cut her
pay, or fire her. Rather, the record here indisputably shows
that the IDOC took immediate remedial steps in response to
Fuller’s complaints, even though her complaints were not
based on workplace conduct. When Fuller reported her
allegations to the IDOC, Cruz was already separated from
the workplace, the IDOC warned employees that he could
not be on premises, and at no point did anyone with the
authority to speak on the IDOC’s behalf tell Fuller (or any
IDOC employee) that Cruz had been exonerated or would
return. Instead, the IDOC diligently investigated Fuller’s
allegations, believed them, and ultimately used them as the
basis of the decision to terminate Cruz’s employment. Cf.
Brooks, 229 F.3d at 922 (noting the employer’s “prompt
remedial action” in investigating an incident and initiating
termination proceedings against a misbehaving employee,

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who ultimately resigned).19 Even under the majority’s
expansive reading of Little, no reasonable jury would equate
an employer’s decision to terminate an employee accused of
harassment with condoning the employee’s behavior.
In the absence of any evidence of “discriminat[ion] . . .
because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), the majority
points out that Fuller is a woman, but some of her IDOC
supervisors were men. Maj. op. at 23. But we long ago held
that the mere fact that a plaintiff is a different sex from her
alleged harassers “is not sufficient to raise a jury question.”
Gregory, 153 F.3d at 1075. This might be different if there
were “a debatable question as to the objective differences in
treatment of male and female employees” at the hands of the
supervisors. NEA, 422 F.3d at 846. But on this record there
is no evidence that Fuller was treated differently from any
male employee, and so no inference of discrimination
arises.20 Id.; see also Oncale, 523 U.S. at 80.

19

The majority’s argument that Brooks is distinguishable because
the employer in Brooks “took no actions which could be perceived as
supportive of the harasser or indicative that he might return,” Maj. op. at
16, finds no basis in the Brooks opinion. Brooks never mentions one way
or the other what the employer did beyond investigating the incident and
pursuing disciplinary action.
20

The majority also notes that despite the lack of any evidence in
the record that would allow a reasonable jury to conclude that Fuller was
treated differently because of sex, we should nevertheless conclude there
is a triable issue because women are “disproportionately victims” who
have “different perspectives” from men. Maj. op. at 24. This suggests
that, were Fuller a man, the majority may have entertained a different
outcome, given the “different perspectives” men might have about sex.
Id. In many areas of the law, “[o]verbroad generalizations of that order”
are inappropriate—indeed, constitutionally suspect.
Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1692, 1693 n.13 (2017).

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The conduct that the majority deems to be abusive—the
IDOC’s refusal to denigrate Cruz merely because he was
accused of wrongdoing—was proper and perhaps legally
necessary. Public employees can have a constitutionally
protected property interest in their employment, and they are
entitled to fair procedures before that interest is terminated.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543
(1985). Similarly, public employees have a protected liberty
interest at stake; a public employee may sue an employer
where contested, stigmatizing information about the
employee is publicly disclosed in connection with the
employee’s termination. E.g., Guzman v. Shewry, 552 F.3d
941, 955 (9th Cir. 2009). The IDOC had an obligation of
constitutional magnitude to tread carefully with its
disclosure of any stigmatizing charges against Cruz until
Cruz had been afforded an appropriate opportunity to clear
his name. These concerns made it reasonable for the IDOC
to decline to reveal any information about the charges
against Cruz until those charges had been substantiated, and
to decline to disclose Fuller’s confidential civil protection
order against Cruz in favor of an email that alerted
employees that Cruz was not allowed on IDOC premises in
a more neutral manner. I would hold that the IDOC’s
decision to avoid prematurely injuring Cruz’s reputation was
not discriminatory conduct that is objectively abusive. But
in any event, the IDOC’s treatment of Cruz cannot support
an inference of discrimination because of sex.
III
Even if the IDOC’s actions upset Fuller, subjective
perception of abuse is not enough to prevail on a Title VII
claim; the abuse must be “discriminat[ion] . . . because of . . .
sex.” 42 U.S.C. § 2000e-2(a)(1); Oncale, 523 U.S. at 80.
On this record, there is no evidence of workplace sexual

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abuse, cf. Little, 301 F.3d at 968, no evidence of supervisors’
addressing Fuller in any manner evincing hostility or sexual
desire, cf. Oncale, 523 U.S. at 80, and no evidence that
“members of one sex [were] exposed to disadvantageous
terms or conditions of employment to which members of the
other sex [were] not exposed,” id. The IDOC did not give
Fuller everything she wanted, but it applied facially neutral
policies in denying some of her requests, and therefore did
not discriminate against her because she is a woman. Rather,
the only conclusion supported by this record is that the IDOC
accommodated Fuller’s situation while respecting Cruz’s
rights. In other words, this is the story of an employer that
worked hard to do the right thing by effectively removing a
potential threat from the workplace immediately and
permanently, without smearing any employee’s reputation
before an investigation had been completed. That it may
nevertheless find itself liable is a testament not to its
missteps, but to our failure to heed Oncale’s central lesson.
Because there was no “discriminat[ion] . . . because of
. . . sex” on this record, Title VII’s text and our precedents
compel the conclusion that Fuller’s claim fails. 42 U.S.C.
§ 2000e-2(a)(1). I would therefore affirm the IDOC’s
judgment in full, and I dissent from the majority’s contrary
disposition.