Jacki Jura v. County of Maui , 582 F. App'x 742 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACKI JURA, No. 13-15179
Plaintiff - Appellant, D.C. No. 1:11-cv-00338-SOM-
RLP
v.
COUNTY OF MAUI, a municipal MEMORANDUM*
corporation of the State of Hawaii; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted June 12, 2014
Honolulu, Hawaii
Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.
Plaintiff Jacki Jura appeals from the district court’s grant of summary
judgment in defendants’ favor in Jura’s employment action. Jura brought claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with
Disabilities Act (the “ADA”), and Hawai’i state law, claiming that (1) she was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
subjected to a hostile work environment as a result of defendant Marie
Kosegarten’s conduct; (2) she was terminated in retaliation for her participation in
an investigation triggered by a coworker’s complaint about Kosegarten’s conduct;
and (3) defendants failed to provide her with a reasonable accommodation for her
hearing disability. We review de novo, Kaplan v. City of N. Las Vegas, 323 F.3d
1226, 1229 (9th Cir. 2003), and affirm.
To prevail on a claim of hostile work environment, a plaintiff must establish
a “pattern of ongoing and persistent harassment severe enough to alter the
conditions of employment.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108
(9th Cir. 1998). In addition, the plaintiff must prove that any harassment took
place “because of . . . sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 79 (1998). While Kosegarten’s conduct towards Jura was highly inappropriate,
it was not so severe as to create a work environment that a reasonable person
would consider hostile or abusive or alter the conditions of Jura’s employment.
See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir.
2013); see also Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).
In order to make out a retaliation claim under Title VII, a plaintiff must
show:
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(1) involvement in a protected activity, (2) an adverse employment
action and (3) a causal link between the two. Thereafter, the burden
of production shifts to the employer to present legitimate reasons for
the adverse employment action. Once the employer carries this
burden, plaintiff must demonstrate a genuine issue of material fact as
to whether the reason advanced by the employer was a pretext.
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (citations omitted).
The district court concluded that Jura had failed to make out a prima facie
case of retaliation based on its determination that the conduct Jura reported fell
outside the ambit of Title VII. However, Title VII protects employees from actions
taken by an employer as the result of an employee’s opposition to what the
employee reasonably, but mistakenly, believes to be an unlawful employment
practice. Moyo v. Gomez. 40 F.3d 982, 984 (9th Cir. 1994). The reasonableness of
a plaintiff’s belief is construed broadly. Id. at 985.
However, although the district court did not reach defendants’ argument that
Jura was terminated for legitimate reasons, we can affirm on any grounds
supported by the record. Schmidt v. Contra Costa Cnty. 693 F.3d 122, 1132 (9th
Cir. 2012). Even if Jura established a prima facie case of retaliation, she failed to
establish a genuine issue of fact as to whether the reason advanced for her
termination was a pretext. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
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1062 (9th Cir. 2002) (holding that where a plaintiff relies on “circumstantial
evidence to show pretext, such evidence must be both specific and substantial”).
The ADA “prohibits an employer from discriminating against an ‘individual
with a disability’ who . . . can perform the essential functions of the job.” U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002) (quoting 42 U.S.C. § 12112).
“‘[D]iscrimination’ includes an employer’s ‘not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified . . . employee.’” Id. at 396 (quoting § 12112(b)(5)(A)) (emphasis
omitted). “An employer is not obligated to provide an employee the
accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089
(9th Cir. 2002) (internal quotation marks omitted).
Although Jura contended that the amplifying headphones available in the
courtroom were not a reasonable accommodation for her hearing disability, she
failed to provide sufficient evidence supporting this contention. Considering only
the arguments properly raised in the district court, see USA Petroleum Co. v. Atl.
Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994), Jura failed to establish a genuine
issue as to whether the headphones served as a reasonable accommodation.
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Jura’s discrimination and retaliation claims under Hawai’i Revised Statutes
§ 378-2 are largely analogous to her claims under Title VII and the ADA. See
French v. Haw. Pizza Hut, Inc., 99 P.3d 1046, 1051 (Haw. 2004); Gonsalves v.
Nissan Motor Corp. in Haw., Ltd., 58 P.3d 1196, 1209 (Haw. 2002); Nelson v.
Univ. of Haw., 38 P.3d 95, 110 (Haw. 2001). Summary judgment was properly
granted on Jura’s state-law claims for the same reasons it was properly granted on
her federal claims.
AFFIRMED.
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