Cloud v. Brennan

Filing 66


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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERICA T CLOUD, Plaintiff, 8 ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 9 10 Re: Dkt. No. 56 LOUIS DEJOY, et al., Defendants. 11 United States District Court Northern District of California Case No. 19-cv-04638-TSH 12 13 I. 14 INTRODUCTION Pending before the Court is a Motion for Summary Judgment filed by Defendant Louis 15 DeJoy, Postmaster General of the United States Postal Service. ECF No. 56. On August 25, 16 2022, Cloud filed an Opposition. ECF No. 62. On September 8, 2022, Defendant filed a reply. 17 ECF No. 63. The Court finds this matter suitable for disposition without oral argument and 18 VACATES the September 22, 2022 hearing. See Civ. L. R. 7-1(b). Having considered the 19 arguments made, the papers submitted in support thereof, and the record in this case, the Court 20 GRANTS IN PART and DENIES IN PART Defendant’s Motion for Summary Judgment.1 21 22 II. A. 23 24 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 25 26 27 28 1 The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF Nos. 10, 14. 2 The following facts are undisputed unless otherwise stated. 3 This document includes the parties’ stipulated statement of material facts, Defendant’s statement of material facts, and Plaintiff’s responses. 1 injured her hand in a non-work-related accident. Id. at No. 1. After her injury, Cloud filed an 2 EEO complaint, and the complaint was resolved on September 7, 2017. Id. at No. 2. Cloud was 3 placed on “light duty modified assignment” and remained at Window #12. Id. at Nos. 8, 23-25. 4 On May 30, 2018, Yanique Spencer, Cloud’s supervisor, saw that it was close to or after 5 Cloud’s assigned work hours and asked Cloud why she was still at work. Id. at No. 35. The 6 parties disagree over whether Ms. Spencer proceeded to tamper with Cloud’s time keeping. Id. at 7 No. 36. After May 30, 2018, Cloud contacted the EEO regarding her complaints about Ms. 8 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 9 10 Id. at No. 37. Cloud states that she told Ms. Spencer that Cloud filed an EEO complaint against 11 Ms. Spencer and, seconds after, Ms. Spencer physically attacked Cloud. ECF No. 62-2, Cloud 12 Decl. at ¶ 10. After the altercation, Ms. Spencer and Cloud were terminated from their positions. 13 P’s SOF at Nos. 42-43. Before Cloud’s termination, on various occasions before September 7, 2017, Maximo De 14 15 Paula, Cloud’s supervisor, asked Cloud to hug him to say hello, grabbed and patted Cloud, and 16 touched Cloud’s hair. ECF No. 62, P’s SOF at Nos. 51, 52. In 2018, Mr. De Paula continued to 17 touch Cloud’s hair and prevented Cloud from leaving his office. Id. at Nos. 52-53. 18 B. Procedural Background On August 9, 2019, Cloud filed the instant action against Megan J. Brennan in her official 19 20 capacity as Postmaster General of the United States Postal Service. ECF No. 1. On November 20, 21 2020, Cloud filed a Second Amended Complaint (“SAC”) against Brennan4 and DOES 1-10. ECF 22 No. 34. The SAC alleged 1) Retaliation under Title VII, 42 U.S.C. § 2000e and 2) Sexual 23 Harassment and Sex Discrimination under Title VII, 42 U.S.C. § 2000e. Id. ¶¶ 42-55. On 24 November 30, 2020, Defendant Louis DeJoy automatically substituted in as the Defendant 25 pursuant to Federal Rule of Civil Procedure 25(d). ECF No. 36 ¶¶ 1-2. 26 27 28 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. 2 4 1 On July 28, 2022, Defendant filed a Motion for Summary Judgment. ECF No. 56. On 2 August 25, 2022, Cloud filed an Opposition. ECF No. 62. On September 8, 2022, Defendant 3 filed a Reply. ECF No. 63. 4 United States District Court Northern District of California 5 III. LEGAL STANDARD Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 6 that there is “no genuine dispute as to any material fact and [that] the movant is entitled to 7 judgment as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment 8 bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that 9 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 10 317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v. 11 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 12 Once the moving party has met its burden, the burden shifts to the non-moving party to 13 “designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex., 477 U.S. at 14 317. To carry this burden, the non-moving party must “do more than simply show there is some 15 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 16 Corp., 475 U.S. 574, 586 (1986). The opposing party must set forth specific facts showing that 17 there is some genuine issue for trial in order to defeat the motion. FED. R. CIV. P. 56(e); 18 Anderson, 477 U.S. at 250. “The mere existence of a scintilla of evidence . . . will be insufficient; 19 there must be evidence on which the jury could reasonably find for the [nonmoving party].” 20 Anderson, 477 U.S. at 252. 21 The Court must view the evidence in the light most favorable to the nonmoving party and 22 draw all justifiable inferences in its favor. Id. at 255. “Credibility determinations, the weighing of 23 the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those 24 of a judge.” Id. However, it is not the Court’s task to scour the record in search of a genuine issue 25 of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court “rel[ies] on the 26 nonmoving party to identify with reasonable particularity the evidence that precludes summary 27 judgment.” Id. Thus, the Court “need not examine the entire file for evidence establishing a 28 genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate 3 1 references so that it could conveniently be found.” Carmen v. S.F. Unified Sch. Dist., 237 F.3d 2 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to make this showing, “the moving party 3 is entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323 (internal quotations 4 omitted). 5 IV. 6 Defendant moves for summary judgment on all of Cloud’s claims. 7 8 United States District Court Northern District of California 9 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 10 establish a prima facie case of retaliation under Title VII, [Cloud] must show 1) that [she] acted to 11 protect [her] Title VII rights; 2) that an adverse employment action was thereafter taken against 12 [her]; and 3) that a causal link existed between the two events.” Id. If Cloud can establish a prima 13 facie case, then the McDonnell Douglas burden-shifting framework applies. Villiarimo v. Aloha 14 Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). 15 Defendant argues 1) Cloud did not engage in a protected activity before May 30, 2018, 2) 16 “most” of the alleged retaliatory conduct is not adverse employment action, and 3) Cloud has not 17 established a causal link for her claims. ECF No. 56 at 16-22. 18 1. 19 Defendant argues Cloud did not engage in a protected activity before May 30, 2018. ECF 20 21 Protected Activity No. 56 at 15. However, Cloud submitted an internal document showing Cloud contacted the EEO on 22 June 28, 2017 regarding a Title VII complaint. ECF No. 62-3, Exh. A (Case Details for 4F-945- 23 0087/Erica Cloud). The Court finds this evidence sufficient to establish Cloud engaged in a 24 protected activity on June 28, 2017. See Villiarimo, 281 F.3d at 1064 (“Harvest has demonstrated 25 that he engaged in a protected activity. He testified that he filed an internal complaint regarding 26 Wall's sexually harassing behavior.”) (citing Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 27 957 F.2d 59, 65 (2d Cir.1992) (finding internal complaint to company management was protected 28 4 1 under Title VII and noting that “Congress sought to protect a wide range of activity in addition to 2 the filing of a formal complaint.”)). 3 2. 4 Defendant argues that the alleged retaliatory conduct other than Cloud’s termination is not 5 adverse employment action. ECF No. 56 at 16-20. Cloud argues she was required to work 6 outside her medical restrictions, Ms. Spencer tampered with Cloud’s timesheets, and Ms. Spencer 7 physically attacked Cloud. ECF No. 62 at 2-4. 8 9 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 10 are adverse employment actions. “[A]n action is cognizable as an adverse employment action if it 11 is reasonably likely to deter employees from engaging in protected activity.” Ray v. Henderson, 12 217 F.3d 1234, 1243 (9th Cir. 2000). “This definition includes actions ‘materially affect[ing] 13 compensation, terms, conditions, or privileges’ of employment.” Little v. Windermere Relocation, 14 Inc., 301 F.3d 958, 970 (9th Cir. 2002). Here, Cloud testified that her request to be transferred 15 because of medical restrictions from Window #12 was denied, she was effectively required to 16 work outside her medical restrictions, Ms. Spencer “clocked” Cloud out of work, and Ms. Spencer 17 physically attacked Cloud. ECF 62-2, Cloud Decl. ¶¶ 3-5, 8, 9, 10. A reasonable juror could find 18 that these actions could reasonably deter Cloud from working or materially affected the terms her 19 employment. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (denials of 20 transfer are adverse employment actions); Ray, 217 F.3d at 1243-44 (finding institution of 21 lockdown procedures, elimination of employee programs, and reduced workload to qualify as 22 adverse employment actions); Chuang v. University of California Davis, Bd. Of Trustees, 225 23 F.3d 1115, 1126 (9th Cir. 2000) (finding move of plaintiff’s laboratory to qualify as an adverse 24 employment action). 25 26 27 28 5 1 3. 2 Defendant argues Cloud failed to establish a causal connection between a protected activity 3 and adverse action. Cloud only defends her claims involving her termination and Ms. Spencer’s 4 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 5 United States District Court Northern District of California Causal Connection 6 (2013), the Supreme Court held that the causation of a retaliation claim requires a plaintiff to 7 “establish that his or her protected activity was a but-for cause of the alleged adverse action by the 8 employer.” “[M]ere temporal proximity between an employer’s knowledge of the protected 9 activity and an adverse employment action . . . [is] sufficient evidence of causality to establish a 10 prima facie case” if the temporal proximity is “very close.” Clark County School Dist. v. Breeden, 11 532 U.S. 268, 273 (2001). The Court finds there is sufficient evidence to support an inference of causation. Cloud 12 13 presented evidence that, on August 14, 2018, Cloud told Ms. Spencer that she filed an EEO 14 complaint against Ms. Spencer “seconds before” Ms. Spencer attacked her. ECF No. 62-2, Cloud 15 Decl. ¶ 10. Given the close temporal proximity between Plaintiff informing Ms. Spencer of her 16 EEO complaint and Ms. Spencer’s physical attack, and Cloud’s termination because she engaged 17 in the physical altercation, a reasonable juror could find the evidence supports a causal connection. 18 See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation can be inferred from 19 “employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time 20 between the protected action and the allegedly retaliatory employment decision.”); Robinson v. 21 Alameda County, Case No. 12-cv-730-JCS, 2013 WL 4494655, at *22 (N.D. Cal. Aug. 19, 2013) 22 (“Given the totality of her complaints and her supervisor’s awareness of her protected activities, 23 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 24 25 VII as to the August 14, 2018 altercation and Cloud’s subsequent termination. The Court 26 27 28 5 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. 6 1 proceeds to evaluate this claim under the McDonnell Douglas burden-shifting framework. See 2 Villiarimo, 281 F.3d at 1062. 3 4. 4 “If the plaintiff establishes a prima facie case, the burden of production—but not 5 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory reason 6 for the challenged action.” Id. (citing McDonnell Douglas, 411 U.S. 792, 802 (1973)). If the 7 employer does so, Cloud must show that the articulated reason is pretextual “either directly by 8 persuading the court that a discriminatory reason more likely motivated the employer or indirectly 9 by showing that the employer’s proffered explanation is unworthy of credence.” Id. (internal 10 United States District Court Northern District of California 11 McDonnell Douglas Burden-Shifting Framework citations omitted). Defendant offers the customer complaint and “other things” going on in Ms. Spencer’s life 12 as legitimate and nondiscriminatory reasons for the August 14, 2018 altercation. ECF No. 56 at 13 23. Defendant also offers the Postal Service’s zero-tolerance policy for workplace violence as the 14 legitimate and nondiscriminatory reason for Cloud’s termination. Id. However, Cloud argues 15 there is a video of the altercation and she acted in self-defense. ECF No. 62 at 6. Cloud identifies 16 testimony from Defendant’s Rule 30(b)(6) witness indicating that self-defense is an exception to 17 the zero-tolerance policy. ECF No. 62-3, Exh. F (Rodriguez Transcript) at 49. 18 The Court finds Cloud’s evidence is sufficient to create a genuine issue of material fact 19 over the reasons for the August 14, 2018 altercation and Cloud’s termination. The events 20 surrounding the August 14, 2018 altercation are in dispute and the record does not contain the 21 video evidence of the altercation. The fact that Cloud told Ms. Spencer about her EEO complaint 22 “seconds before” Ms. Spencer physically attacked Cloud raises genuine disputes over the reason 23 for the altercation. See Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987) (“Evidence 24 already introduced to establish the prima facie case may be considered, and [i]ndeed, there may be 25 some cases where the plaintiff's initial evidence, combined with effective cross-examination of the 26 defendant, will suffice to discredit the defendant's explanation.”) (internal quotations and citations 27 omitted). Moreover, Cloud’s evidence of the self-defense exception raises additional material 28 disputes whether the postal service appropriately terminated Cloud in accordance with its own 7 1 policies. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006) 2 (“Because Cornwell produced evidence that created a factual question whether his demotion 3 resulted from such discrimination, Defendants were not entitled to summary judgment regarding 4 Cornwell's discrimination claims based on his demotion.”); Miller v. Fairchild Industries, Inc., 5 797 F.2d 727, 732-33 (9th Cir. 1986) (Courts have recognized that in discrimination cases, an 6 employer's true motivations are particularly difficult to ascertain . . . thereby making such factual 7 determinations generally unsuitable for disposition at the summary judgment stage.”) Accordingly, the Court DENIES Defendant’s Motion for Summary Judgment as to 8 United States District Court Northern District of California 9 Cloud’s Title VII retaliation claims to the extent the claims involve the August 14, 2018 10 altercation and Cloud’s termination. 11 B. 12 Sex Discrimination and Sexual Harassment Claims Title VII prohibits employment discrimination based on sex. Brooks v. City of San Mateo, 13 229 F.3d 917, 923 (9th Cir. 2000). “The Supreme Court and the lower courts have interpreted 14 [Title VII] as giving rise to at least three types of sex discrimination claims: disparate treatment 15 (adverse employment actions motivated by sex); quid pro quo sexual harassment (conditioning 16 employment benefits on submission to sexual advances); and hostile work environment 17 harassment (unwelcome sexual advances so severe as to alter the terms and conditions of 18 employment).” Maner v. Dignity Health, 9 F.4th 1114, 1120 (9th Cir. 2021); see also Brooks, 229 19 F.3d at 922 (“Sexual harassment is a species of gender discrimination: Harassing an employee on 20 account of sex is, conceptually, the same as refusing to hire on account of sex, or paying less for 21 the same work, or imposing more onerous duties for the same pay.”). 22 Cloud’s sex discrimination claims involve disparate treatment and hostile work 23 environment based on sexual harassment. ECF No. 62 at 6-8. The Court will address the claims 24 accordingly. 25 1. 26 “In responding to a summary judgment motion in a Title VII disparate treatment case, a Disparate Treatment 27 plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason 28 more likely than not motivated the defendant’s decision, or alternatively may establish a prima 8 1 facie case under the burden-shifting framework set forth in McDonnell Douglas.” Dominguez- 2 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 3 4 McDonnell Douglas burden-shifting framework. ECF No. 56 at 13-15. Cloud does not address 5 Defendant’s arguments regarding the McDonnell Douglas burden-shifting framework for her sex 6 discrimination claims, and instead argues she established a prima facie sex discrimination claim 7 because her employer refused to assign Cloud to a different work location and “[m]en were not 8 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 9 10 forced to continue working at Window #12 because of her gender or sex. See Vazquez v. County 11 of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003) (“Vasquez has not offered any direct evidence 12 that Leeds was motivated by discriminatory intent. Nor has Vasquez shown that Leeds’ 13 explanation is not believable for some other reason. . . even assuming that Vasquez could establish 14 his prima facie case, his claim would fail because he could not show that Leeds’ reason was a 15 pretext for discriminatory intent.”); Frank v. United Airlines, Inc., 216 F.3d 845, 853 (9th Cir. 16 2000) (“Disparate treatment arises when an employer ‘treats some people less favorably than 17 others because of their . . . sex.’”). The Court must GRANT Defendant’s Motion for Summary 18 Judgment as to Cloud’s disparate treatment sex discrimination claims.6 19 2. Hostile Work Environment 20 “Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual 21 harassment, in employment.” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). 22 “Sexual harassment falls into two major categories: hostile work environment and quid pro quo . . 23 . A hostile work environment claim involves a workplace atmosphere so discriminatory and 24 abusive that it unreasonably interferes with the job performance of those harassed.” Brooks, 229 25 F.3d at 922. To survive summary judgment on her hostile work environment claims based on 26 27 28 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. 9 6 1 sexual harassment, Cloud must show that: “(1) she was subjected to verbal or physical conduct of 2 a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or 3 pervasive to alter the conditions of her employment and create an abusive work environment.” 4 Porter v. California Dept. of Corrections, 419 F.3d 885, 982 (9th Cir. 2005); accord Stanley v. 5 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 6 7 created a hostile work environment. ECF No. 62 at 7. Defendant argues a) Cloud admitted that 8 she was not sexually harassed, b) Cloud was not subjected to verbal or physical conduct of a 9 sexual nature, and c) the alleged conduct was not severe or pervasive. ECF No. 56 at 11-12. 10 a. Defendant argues Cloud admitted under oath that she was not sexually harassed. ECF No. 11 United States District Court Northern District of California Plaintiff’s Testimony 12 56 at 10; 63 at 4-5. However, Cloud submitted testimony where she stated “I was getting a little 13 frustrated because I’m not knowing sexual harassment is a form – I didn’t know it was a form of 14 hugging, touching hair, and doings things like that. I don’t know what all the term ‘sexual 15 harassment’ is.” ECF No. 62-6, Exh. G (Cloud Decl.) at 207: 7-11. Given the conflicting 16 testimony, the Court DENIES Defendant’s request for grant summary judgment because of 17 Cloud’s testimony. See Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (“[T]he 18 district court must recognize that, where evidence is genuinely disputed on a particular issue— 19 such as by conflicting testimony—that ‘issue is inappropriate for resolution on summary 20 judgment.’”); Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (“At 21 the summary judgment stage, the court does not make credibility determinations or weigh 22 conflicting evidence.”); Leslie v. Group ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (“[A]t summary 23 judgment . . . if direct evidence produced by the moving party conflicts with direct evidence 24 25 26 27 28 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). 10 7 1 produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the 2 nonmoving party with respect to that fact.”). 3 b. Defendant argues that “almost none” of the alleged conduct, including closed-door 4 5 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 6 United States District Court Northern District of California Conduct of a Sexual Nature 7 Paula “put his foot up and had [Plaintiff] blocked,” requested Cloud to hug him, “fondle[d]” 8 Cloud’s hair, complimented Cloud’s appearance, “pat[ted] [Cloud] on the back.” ECF No. 62-3, 9 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 10 Court finds this evidence sufficient to raise a genuine dispute over whether Cloud was subjected to 11 conduct of a sexual nature. See Zetwick, 850 F.3d 436, 442 (9th Cir. 2017) (“[A] reasonable juror 12 could conclude that the differences in hugging of men and women were not, as the defendants 13 argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with 14 members of the same sex and of the opposite sex.’”) (citing Faragher v. City of Boca Raton, 524 15 U.S. 775, 788 (1998)); Burrell v. Star Nursery, Inc., 170 F.3d 951, 953-55 (9th Cir. 1999) (finding 16 material issue of fact where plaintiff alleged coworkers made unwanted sexual advances and made 17 comments about her breasts, grabbed plaintiff’s breasts once, and asked to go on a trip). 18 c. Defendant argues Cloud cannot establish severe or pervasive conduct. ECF No. 56 at 12; 19 20 21 Severe or Pervasive Conduct 63 at 6. In considering whether conduct is severe or pervasive, the Court must “consider the 22 totality of the circumstances and whether the harassment was both objectively and subjectively 23 abusive.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006) (citing Little v. Windermere 24 Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002)). This includes consideration of the 25 “frequency of discriminatory conduct; its severity; whether it is physically threatening or 26 humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an 27 employee's work performance.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 28 2001). However, “the harassment need not be so severe as to cause diagnosed psychological 11 1 injury.” Fuller v. Idaho Dept. of Corrections, 865 F.3d 1154, 1162 (9th Cir. 2017). “[I]n 2 evaluating the severity and pervasiveness of sexual harassment, [the Court] focus[es] on the 3 perspective of the victim.” Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991). United States District Court Northern District of California 4 The Court finds Cloud has offered sufficient evidence to establish a prima facie case of 5 hostile work environment. As discussed above, Cloud testified that, between 2017 and 2018, Mr. 6 De Paula blocked Cloud’s path with his foot, prevented Cloud from leaving his office, requested 7 hugs, fondled Cloud’s hair, and patted Cloud. ECF No. 62-3, Exh. G (Cloud Decl.) at 136: 3-34, 8 207: 18-22, 23-25, 208: 1-2, 211:17-20, 212: 1-7, 23-25. See Ellison v. Brady, 924 F.2d 872 (9th 9 Cir. 1991) (“Well-intentioned compliments by co-workers or supervisors can form the basis of a 10 sexual harassment cause of action if a reasonable victim of the same sex as the plaintiff would 11 consider the comments sufficiently severe or pervasive to alter a condition of employment and 12 create an abusive working environment.”); Medina v. Monahoe, 854 F. Supp. 2d 733, 740, 750 13 (N.D. Cal. 2012) (finding plaintiff established prima facie case of hostile work environment based 14 on sexual harassment against a supervisor who touched plaintiff’s hair, caressed plaintiff’s 15 shoulders, and commented on how well plaintiff fitted her pants.”). Mr. De Paula’s position as 16 Cloud’s supervisor “made his actions emotionally and psychologically threatening.” Craig v. 17 M&O Agencies, Inc., 496 F.3d 1047, 1056 (9th Cir. 2007). Moreover, Cloud testified that she 18 “felt a certain way” when Mr. De Paula would touch her because she knew that he was previously 19 accused of sexual harassment. ECF No. 62-3, Exhibit G (Cloud Decl.) at 140:12-15; 208: 2-4; 20 212: 23-24, 213: 1. See Heyne v. Caruso, 69 F.3d 1475, 1479–81 (9th Cir. 1995) (“[The sexual 21 harassment of others, if shown to have occurred, is relevant and probative of [a defendant’s] 22 general attitude of disrespect toward his female employees, and his sexual objectification of 23 them.”). 24 Given the cumulative effect of the alleged harassment, and in viewing the evidence most 25 favorable to Cloud, the Court DENIES Defendant’s Motion for Summary Judgment as to 26 Plaintiff’s hostile work environment sexual harassment claims to the extent the claims are based 27 28 12 1 on Mr. De Paula’s alleged misconduct.8 Cf. Davis v. Team Elec. Co., 520 F.3d 1080, 1096 (9th 2 Cir. 2008) (“In close cases such as this one, where the severity of frequent abuse is questionable, it 3 is more appropriate to leave the assessment to the fact-finder than for the court to decide the case 4 on summary judgment.”). 5 V. For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART 6 7 CONCLUSION Defendant’s Motion for Summary Judgment. IT IS SO ORDERED. 8 9 10 Dated: September 19, 2022 United States District Court Northern District of California 11 THOMAS S. HIXSON United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 13 8

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