Cloud v. Brennan

Filing 66

ORDER RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. (tshlc2, COURT STAFF) (Filed on 9/19/2022)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERICA T CLOUD,
Plaintiff,

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ORDER RE: DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

v.

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Re: Dkt. No. 56

LOUIS DEJOY, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 19-cv-04638-TSH

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I.

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INTRODUCTION

Pending before the Court is a Motion for Summary Judgment filed by Defendant Louis

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DeJoy, Postmaster General of the United States Postal Service. ECF No. 56. On August 25,

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2022, Cloud filed an Opposition. ECF No. 62. On September 8, 2022, Defendant filed a reply.

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ECF No. 63. The Court finds this matter suitable for disposition without oral argument and

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VACATES the September 22, 2022 hearing. See Civ. L. R. 7-1(b). Having considered the

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arguments made, the papers submitted in support thereof, and the record in this case, the Court

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GRANTS IN PART and DENIES IN PART Defendant’s Motion for Summary Judgment.1

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II.
A.

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BACKGROUND2

Factual Background
Erica Cloud was employed by the United States Postal Service and worked Window #12 at

the Civic Center Post Office. ECF No. 62, P’s SOF3 at Nos. 21, 23. In January 2017, Cloud

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The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF
Nos. 10, 14.
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The following facts are undisputed unless otherwise stated.
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This document includes the parties’ stipulated statement of material facts, Defendant’s statement
of material facts, and Plaintiff’s responses.

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injured her hand in a non-work-related accident. Id. at No. 1. After her injury, Cloud filed an

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EEO complaint, and the complaint was resolved on September 7, 2017. Id. at No. 2. Cloud was

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placed on “light duty modified assignment” and remained at Window #12. Id. at Nos. 8, 23-25.

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On May 30, 2018, Yanique Spencer, Cloud’s supervisor, saw that it was close to or after

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Cloud’s assigned work hours and asked Cloud why she was still at work. Id. at No. 35. The

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parties disagree over whether Ms. Spencer proceeded to tamper with Cloud’s time keeping. Id. at

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No. 36. After May 30, 2018, Cloud contacted the EEO regarding her complaints about Ms.

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Spencer. Id. at No. 7.
On August 14, 2018, Ms. Spencer approached Cloud after receiving a customer complaint.

United States District Court
Northern District of California

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Id. at No. 37. Cloud states that she told Ms. Spencer that Cloud filed an EEO complaint against

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Ms. Spencer and, seconds after, Ms. Spencer physically attacked Cloud. ECF No. 62-2, Cloud

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Decl. at ¶ 10. After the altercation, Ms. Spencer and Cloud were terminated from their positions.

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P’s SOF at Nos. 42-43.
Before Cloud’s termination, on various occasions before September 7, 2017, Maximo De

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Paula, Cloud’s supervisor, asked Cloud to hug him to say hello, grabbed and patted Cloud, and

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touched Cloud’s hair. ECF No. 62, P’s SOF at Nos. 51, 52. In 2018, Mr. De Paula continued to

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touch Cloud’s hair and prevented Cloud from leaving his office. Id. at Nos. 52-53.

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B.

Procedural Background
On August 9, 2019, Cloud filed the instant action against Megan J. Brennan in her official

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capacity as Postmaster General of the United States Postal Service. ECF No. 1. On November 20,

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2020, Cloud filed a Second Amended Complaint (“SAC”) against Brennan4 and DOES 1-10. ECF

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No. 34. The SAC alleged 1) Retaliation under Title VII, 42 U.S.C. § 2000e and 2) Sexual

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Harassment and Sex Discrimination under Title VII, 42 U.S.C. § 2000e. Id. ¶¶ 42-55. On

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November 30, 2020, Defendant Louis DeJoy automatically substituted in as the Defendant

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pursuant to Federal Rule of Civil Procedure 25(d). ECF No. 36 ¶¶ 1-2.

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Ms. Brennan was “named as defendant in this action pursuant to 28 U.S.C. § 2000e-16(c) and is
sued in her official capacity only.” ECF No. 34 ¶ 2.
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On July 28, 2022, Defendant filed a Motion for Summary Judgment. ECF No. 56. On

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August 25, 2022, Cloud filed an Opposition. ECF No. 62. On September 8, 2022, Defendant

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filed a Reply. ECF No. 63.

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United States District Court
Northern District of California

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III.

LEGAL STANDARD

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

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that there is “no genuine dispute as to any material fact and [that] the movant is entitled to

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judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment

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bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Once the moving party has met its burden, the burden shifts to the non-moving party to

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“designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex., 477 U.S. at

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317. To carry this burden, the non-moving party must “do more than simply show there is some

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metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

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Corp., 475 U.S. 574, 586 (1986). The opposing party must set forth specific facts showing that

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there is some genuine issue for trial in order to defeat the motion. FED. R. CIV. P. 56(e);

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Anderson, 477 U.S. at 250. “The mere existence of a scintilla of evidence . . . will be insufficient;

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there must be evidence on which the jury could reasonably find for the [nonmoving party].”

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Anderson, 477 U.S. at 252.

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The Court must view the evidence in the light most favorable to the nonmoving party and

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draw all justifiable inferences in its favor. Id. at 255. “Credibility determinations, the weighing of

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the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those

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of a judge.” Id. However, it is not the Court’s task to scour the record in search of a genuine issue

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of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the

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nonmoving party to identify with reasonable particularity the evidence that precludes summary

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judgment.” Id. Thus, the Court “need not examine the entire file for evidence establishing a

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genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate
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references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d

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1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, “the moving party

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is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323 (internal quotations

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omitted).

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IV.

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Defendant moves for summary judgment on all of Cloud’s claims.

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United States District Court
Northern District of California

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A.

DISCUSSION

Retaliation Claims
“Section 704 of Title VII prohibits retaliation against an employee for opposing unlawful

discrimination.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1124 (9th Cir. 2004). “To

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establish a prima facie case of retaliation under Title VII, [Cloud] must show 1) that [she] acted to

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protect [her] Title VII rights; 2) that an adverse employment action was thereafter taken against

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[her]; and 3) that a causal link existed between the two events.” Id. If Cloud can establish a prima

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facie case, then the McDonnell Douglas burden-shifting framework applies. Villiarimo v. Aloha

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Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

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Defendant argues 1) Cloud did not engage in a protected activity before May 30, 2018, 2)

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“most” of the alleged retaliatory conduct is not adverse employment action, and 3) Cloud has not

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established a causal link for her claims. ECF No. 56 at 16-22.

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1.

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Defendant argues Cloud did not engage in a protected activity before May 30, 2018. ECF

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Protected Activity

No. 56 at 15.
However, Cloud submitted an internal document showing Cloud contacted the EEO on

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June 28, 2017 regarding a Title VII complaint. ECF No. 62-3, Exh. A (Case Details for 4F-945-

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0087/Erica Cloud). The Court finds this evidence sufficient to establish Cloud engaged in a

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protected activity on June 28, 2017. See Villiarimo, 281 F.3d at 1064 (“Harvest has demonstrated

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that he engaged in a protected activity. He testified that he filed an internal complaint regarding

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Wall's sexually harassing behavior.”) (citing Kotcher v. Rosa and Sullivan Appliance Ctr., Inc.,

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957 F.2d 59, 65 (2d Cir.1992) (finding internal complaint to company management was protected

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under Title VII and noting that “Congress sought to protect a wide range of activity in addition to

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the filing of a formal complaint.”)).

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2.

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Defendant argues that the alleged retaliatory conduct other than Cloud’s termination is not

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adverse employment action. ECF No. 56 at 16-20. Cloud argues she was required to work

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outside her medical restrictions, Ms. Spencer tampered with Cloud’s timesheets, and Ms. Spencer

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physically attacked Cloud. ECF No. 62 at 2-4.

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United States District Court
Northern District of California

Adverse Employment Action

The Court finds Plaintiff presented sufficient evidence to demonstrate that the alleged
requirement to work outside medical restrictions, tampering with timesheets, and physical attack

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are adverse employment actions. “[A]n action is cognizable as an adverse employment action if it

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is reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson,

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217 F.3d 1234, 1243 (9th Cir. 2000). “This definition includes actions ‘materially affect[ing]

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compensation, terms, conditions, or privileges’ of employment.” Little v. Windermere Relocation,

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Inc., 301 F.3d 958, 970 (9th Cir. 2002). Here, Cloud testified that her request to be transferred

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because of medical restrictions from Window #12 was denied, she was effectively required to

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work outside her medical restrictions, Ms. Spencer “clocked” Cloud out of work, and Ms. Spencer

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physically attacked Cloud. ECF 62-2, Cloud Decl. ¶¶ 3-5, 8, 9, 10. A reasonable juror could find

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that these actions could reasonably deter Cloud from working or materially affected the terms her

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employment. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (denials of

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transfer are adverse employment actions); Ray, 217 F.3d at 1243-44 (finding institution of

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lockdown procedures, elimination of employee programs, and reduced workload to qualify as

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adverse employment actions); Chuang v. University of California Davis, Bd. Of Trustees, 225

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F.3d 1115, 1126 (9th Cir. 2000) (finding move of plaintiff’s laboratory to qualify as an adverse

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employment action).

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3.

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Defendant argues Cloud failed to establish a causal connection between a protected activity

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and adverse action. Cloud only defends her claims involving her termination and Ms. Spencer’s

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physical attack, and argues temporal proximity establishes causation.5 ECF No. 62 at 5.
In University of Texas v. Southwestern Medical Center v. Nassar, 570 U.S. 338, 362

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United States District Court
Northern District of California

Causal Connection

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(2013), the Supreme Court held that the causation of a retaliation claim requires a plaintiff to

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“establish that his or her protected activity was a but-for cause of the alleged adverse action by the

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employer.” “[M]ere temporal proximity between an employer’s knowledge of the protected

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activity and an adverse employment action . . . [is] sufficient evidence of causality to establish a

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prima facie case” if the temporal proximity is “very close.” Clark County School Dist. v. Breeden,

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532 U.S. 268, 273 (2001).
The Court finds there is sufficient evidence to support an inference of causation. Cloud

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presented evidence that, on August 14, 2018, Cloud told Ms. Spencer that she filed an EEO

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complaint against Ms. Spencer “seconds before” Ms. Spencer attacked her. ECF No. 62-2, Cloud

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Decl. ¶ 10. Given the close temporal proximity between Plaintiff informing Ms. Spencer of her

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EEO complaint and Ms. Spencer’s physical attack, and Cloud’s termination because she engaged

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in the physical altercation, a reasonable juror could find the evidence supports a causal connection.

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See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation can be inferred from

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“employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time

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between the protected action and the allegedly retaliatory employment decision.”); Robinson v.

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Alameda County, Case No. 12-cv-730-JCS, 2013 WL 4494655, at *22 (N.D. Cal. Aug. 19, 2013)

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(“Given the totality of her complaints and her supervisor’s awareness of her protected activities,

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Plaintiff has established the causation element of her prima facie case.”)
Accordingly, the Court finds Cloud established a prima facie case of retaliation under Title

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VII as to the August 14, 2018 altercation and Cloud’s subsequent termination. The Court

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Because Cloud failed to argue and establish the causal connection for her retaliation claims
involving working outside her medical restrictions and tampered timesheets, the Court finds
Plaintiff failed to establish a prima facie retaliation case and GRANTS Defendant’s Motion for
Summary Judgment as to those claims.
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proceeds to evaluate this claim under the McDonnell Douglas burden-shifting framework. See

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Villiarimo, 281 F.3d at 1062.

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4.

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“If the plaintiff establishes a prima facie case, the burden of production—but not

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persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory reason

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for the challenged action.” Id. (citing McDonnell Douglas, 411 U.S. 792, 802 (1973)). If the

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employer does so, Cloud must show that the articulated reason is pretextual “either directly by

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persuading the court that a discriminatory reason more likely motivated the employer or indirectly

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by showing that the employer’s proffered explanation is unworthy of credence.” Id. (internal

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United States District Court
Northern District of California

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McDonnell Douglas Burden-Shifting Framework

citations omitted).
Defendant offers the customer complaint and “other things” going on in Ms. Spencer’s life

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as legitimate and nondiscriminatory reasons for the August 14, 2018 altercation. ECF No. 56 at

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23. Defendant also offers the Postal Service’s zero-tolerance policy for workplace violence as the

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legitimate and nondiscriminatory reason for Cloud’s termination. Id. However, Cloud argues

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there is a video of the altercation and she acted in self-defense. ECF No. 62 at 6. Cloud identifies

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testimony from Defendant’s Rule 30(b)(6) witness indicating that self-defense is an exception to

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the zero-tolerance policy. ECF No. 62-3, Exh. F (Rodriguez Transcript) at 49.

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The Court finds Cloud’s evidence is sufficient to create a genuine issue of material fact

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over the reasons for the August 14, 2018 altercation and Cloud’s termination. The events

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surrounding the August 14, 2018 altercation are in dispute and the record does not contain the

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video evidence of the altercation. The fact that Cloud told Ms. Spencer about her EEO complaint

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“seconds before” Ms. Spencer physically attacked Cloud raises genuine disputes over the reason

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for the altercation. See Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987) (“Evidence

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already introduced to establish the prima facie case may be considered, and [i]ndeed, there may be

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some cases where the plaintiff's initial evidence, combined with effective cross-examination of the

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defendant, will suffice to discredit the defendant's explanation.”) (internal quotations and citations

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omitted). Moreover, Cloud’s evidence of the self-defense exception raises additional material

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disputes whether the postal service appropriately terminated Cloud in accordance with its own
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policies. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006)

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(“Because Cornwell produced evidence that created a factual question whether his demotion

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resulted from such discrimination, Defendants were not entitled to summary judgment regarding

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Cornwell's discrimination claims based on his demotion.”); Miller v. Fairchild Industries, Inc.,

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797 F.2d 727, 732-33 (9th Cir. 1986) (Courts have recognized that in discrimination cases, an

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employer's true motivations are particularly difficult to ascertain . . . thereby making such factual

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determinations generally unsuitable for disposition at the summary judgment stage.”)
Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment as to

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United States District Court
Northern District of California

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Cloud’s Title VII retaliation claims to the extent the claims involve the August 14, 2018

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altercation and Cloud’s termination.

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B.

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Sex Discrimination and Sexual Harassment Claims
Title VII prohibits employment discrimination based on sex. Brooks v. City of San Mateo,

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229 F.3d 917, 923 (9th Cir. 2000). “The Supreme Court and the lower courts have interpreted

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[Title VII] as giving rise to at least three types of sex discrimination claims: disparate treatment

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(adverse employment actions motivated by sex); quid pro quo sexual harassment (conditioning

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employment benefits on submission to sexual advances); and hostile work environment

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harassment (unwelcome sexual advances so severe as to alter the terms and conditions of

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employment).” Maner v. Dignity Health, 9 F.4th 1114, 1120 (9th Cir. 2021); see also Brooks, 229

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F.3d at 922 (“Sexual harassment is a species of gender discrimination: Harassing an employee on

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account of sex is, conceptually, the same as refusing to hire on account of sex, or paying less for

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the same work, or imposing more onerous duties for the same pay.”).

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Cloud’s sex discrimination claims involve disparate treatment and hostile work

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environment based on sexual harassment. ECF No. 62 at 6-8. The Court will address the claims

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accordingly.

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“In responding to a summary judgment motion in a Title VII disparate treatment case, a

Disparate Treatment

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plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason

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more likely than not motivated the defendant’s decision, or alternatively may establish a prima
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facie case under the burden-shifting framework set forth in McDonnell Douglas.” Dominguez-

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Curry v. Nevada Trans. Dept., 424 F.3d 1027, 1061-62 (9th Cir. 2005).
Defendant argues Cloud cannot establish a prima facie sex discrimination claim under the

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McDonnell Douglas burden-shifting framework. ECF No. 56 at 13-15. Cloud does not address

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Defendant’s arguments regarding the McDonnell Douglas burden-shifting framework for her sex

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discrimination claims, and instead argues she established a prima facie sex discrimination claim

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because her employer refused to assign Cloud to a different work location and “[m]en were not

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subjected to sexual harassment by the men in charge.” ECF No. 62 at 7.
Notably, Cloud does not cite to any evidence showing that she was treated differently or

United States District Court
Northern District of California

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forced to continue working at Window #12 because of her gender or sex. See Vazquez v. County

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of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (“Vasquez has not offered any direct evidence

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that Leeds was motivated by discriminatory intent. Nor has Vasquez shown that Leeds’

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explanation is not believable for some other reason. . . even assuming that Vasquez could establish

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his prima facie case, his claim would fail because he could not show that Leeds’ reason was a

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pretext for discriminatory intent.”); Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir.

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2000) (“Disparate treatment arises when an employer ‘treats some people less favorably than

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others because of their . . . sex.’”). The Court must GRANT Defendant’s Motion for Summary

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Judgment as to Cloud’s disparate treatment sex discrimination claims.6

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2.

Hostile Work Environment

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“Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual

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harassment, in employment.” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021).

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“Sexual harassment falls into two major categories: hostile work environment and quid pro quo . .

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. A hostile work environment claim involves a workplace atmosphere so discriminatory and

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abusive that it unreasonably interferes with the job performance of those harassed.” Brooks, 229

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F.3d at 922. To survive summary judgment on her hostile work environment claims based on

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Defendant argues that Cloud’s discrimination claims involving conduct that occurred prior to
April 15, 2018 are time barred. ECF No. 56 at 1, 25. Because the Court GRANTS Defendant’s
Motion for Summary Judgment as to Cloud’s disparate treatment claims, the Court declines to
address Defendant’s timeliness argument.
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sexual harassment, Cloud must show that: “(1) she was subjected to verbal or physical conduct of

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a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or

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pervasive to alter the conditions of her employment and create an abusive work environment.”

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Porter v. California Dept. of Corrections, 419 F.3d 885, 982 (9th Cir. 2005); accord Stanley v.

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Trustees of California State University, 433 F.3d 1129, 1137 (9th Cir. 2006).
Cloud alleges Mr. DePaula’s conduct in 2017 and 20187 was sexual harassment and

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created a hostile work environment. ECF No. 62 at 7. Defendant argues a) Cloud admitted that

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she was not sexually harassed, b) Cloud was not subjected to verbal or physical conduct of a

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sexual nature, and c) the alleged conduct was not severe or pervasive. ECF No. 56 at 11-12.

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a.

Defendant argues Cloud admitted under oath that she was not sexually harassed. ECF No.

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United States District Court
Northern District of California

Plaintiff’s Testimony

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56 at 10; 63 at 4-5. However, Cloud submitted testimony where she stated “I was getting a little

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frustrated because I’m not knowing sexual harassment is a form – I didn’t know it was a form of

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hugging, touching hair, and doings things like that. I don’t know what all the term ‘sexual

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harassment’ is.” ECF No. 62-6, Exh. G (Cloud Decl.) at 207: 7-11. Given the conflicting

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testimony, the Court DENIES Defendant’s request for grant summary judgment because of

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Cloud’s testimony. See Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (“[T]he

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district court must recognize that, where evidence is genuinely disputed on a particular issue—

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such as by conflicting testimony—that ‘issue is inappropriate for resolution on summary

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judgment.’”); Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (“At

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the summary judgment stage, the court does not make credibility determinations or weigh

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conflicting evidence.”); Leslie v. Group ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (“[A]t summary

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judgment . . . if direct evidence produced by the moving party conflicts with direct evidence

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Defendant does not appear to dispute the timeliness of Plaintiff’s hostile work environment
claims. ECF No. 63 at 6. The Court shall evaluate alleged sexual harassment from 2017 to 2018
because “a hostile work environment claim . . . will not be time barred so long as all acts which
constitute the claim are part of the same unlawful employment practice and at least one act falls
within the time period.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 101 (2002).
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produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the

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nonmoving party with respect to that fact.”).

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b.

Defendant argues that “almost none” of the alleged conduct, including closed-door

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meetings, hair touching, and hugs, is of a sexual nature. ECF No. 56 at 11-12.
The Court disagrees with Defendant. Cloud testified that between 2017 and 2018, Mr. De

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United States District Court
Northern District of California

Conduct of a Sexual Nature

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Paula “put his foot up and had [Plaintiff] blocked,” requested Cloud to hug him, “fondle[d]”

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Cloud’s hair, complimented Cloud’s appearance, “pat[ted] [Cloud] on the back.” ECF No. 62-3,

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Exh. G (Cloud Depo) at 136: 3-34, 207: 18-22, 23-25, 208: 1-2, 211:17-20, 212: 1-7, 23-25. The

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Court finds this evidence sufficient to raise a genuine dispute over whether Cloud was subjected to

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conduct of a sexual nature. See Zetwick, 850 F.3d 436, 442 (9th Cir. 2017) (“[A] reasonable juror

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could conclude that the differences in hugging of men and women were not, as the defendants

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argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with

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members of the same sex and of the opposite sex.’”) (citing Faragher v. City of Boca Raton, 524

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U.S. 775, 788 (1998)); Burrell v. Star Nursery, Inc., 170 F.3d 951, 953-55 (9th Cir. 1999) (finding

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material issue of fact where plaintiff alleged coworkers made unwanted sexual advances and made

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comments about her breasts, grabbed plaintiff’s breasts once, and asked to go on a trip).

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c.

Defendant argues Cloud cannot establish severe or pervasive conduct. ECF No. 56 at 12;

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Severe or Pervasive Conduct

63 at 6.
In considering whether conduct is severe or pervasive, the Court must “consider the

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totality of the circumstances and whether the harassment was both objectively and subjectively

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abusive.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006) (citing Little v. Windermere

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Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002)). This includes consideration of the

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“frequency of discriminatory conduct; its severity; whether it is physically threatening or

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humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

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employee's work performance.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir.

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2001). However, “the harassment need not be so severe as to cause diagnosed psychological
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injury.” Fuller v. Idaho Dept. of Corrections, 865 F.3d 1154, 1162 (9th Cir. 2017). “[I]n

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evaluating the severity and pervasiveness of sexual harassment, [the Court] focus[es] on the

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perspective of the victim.” Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991).

United States District Court
Northern District of California

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The Court finds Cloud has offered sufficient evidence to establish a prima facie case of

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hostile work environment. As discussed above, Cloud testified that, between 2017 and 2018, Mr.

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De Paula blocked Cloud’s path with his foot, prevented Cloud from leaving his office, requested

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hugs, fondled Cloud’s hair, and patted Cloud. ECF No. 62-3, Exh. G (Cloud Decl.) at 136: 3-34,

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207: 18-22, 23-25, 208: 1-2, 211:17-20, 212: 1-7, 23-25. See Ellison v. Brady, 924 F.2d 872 (9th

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Cir. 1991) (“Well-intentioned compliments by co-workers or supervisors can form the basis of a

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sexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would

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consider the comments sufficiently severe or pervasive to alter a condition of employment and

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create an abusive working environment.”); Medina v. Monahoe, 854 F. Supp. 2d 733, 740, 750

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(N.D. Cal. 2012) (finding plaintiff established prima facie case of hostile work environment based

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on sexual harassment against a supervisor who touched plaintiff’s hair, caressed plaintiff’s

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shoulders, and commented on how well plaintiff fitted her pants.”). Mr. De Paula’s position as

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Cloud’s supervisor “made his actions emotionally and psychologically threatening.” Craig v.

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M&O Agencies, Inc., 496 F.3d 1047, 1056 (9th Cir. 2007). Moreover, Cloud testified that she

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“felt a certain way” when Mr. De Paula would touch her because she knew that he was previously

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accused of sexual harassment. ECF No. 62-3, Exhibit G (Cloud Decl.) at 140:12-15; 208: 2-4;

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212: 23-24, 213: 1. See Heyne v. Caruso, 69 F.3d 1475, 1479–81 (9th Cir. 1995) (“[The sexual

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harassment of others, if shown to have occurred, is relevant and probative of [a defendant’s]

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general attitude of disrespect toward his female employees, and his sexual objectification of

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them.”).

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Given the cumulative effect of the alleged harassment, and in viewing the evidence most

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favorable to Cloud, the Court DENIES Defendant’s Motion for Summary Judgment as to

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Plaintiff’s hostile work environment sexual harassment claims to the extent the claims are based

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on Mr. De Paula’s alleged misconduct.8 Cf. Davis v. Team Elec. Co., 520 F.3d 1080, 1096 (9th

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Cir. 2008) (“In close cases such as this one, where the severity of frequent abuse is questionable, it

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is more appropriate to leave the assessment to the fact-finder than for the court to decide the case

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on summary judgment.”).

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V.

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

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CONCLUSION

Defendant’s Motion for Summary Judgment.
IT IS SO ORDERED.

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Dated: September 19, 2022

United States District Court
Northern District of California

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THOMAS S. HIXSON
United States Magistrate Judge

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Defendant moves for summary judgment on Plaintiff’s sexual harassment claims arising out of
Mr. Mayfield’s conduct. ECF No. 56 at 12. Plaintiff fails to raise any evidence or argument
supporting her sexual harassment claim arising out of Mr. Mayfield’s conduct. ECF No. 62. The
Court GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s sexual harassment
claims to the extent Plaintiff’s claims are based on Mr. Mayfield’s alleged conduct.
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