Robin Anderson v. Crst International, Inc. , 685 F. App'x 524 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN ANDERSON, No. 15-55556
Plaintiff-Appellant, D.C. No.
5:14-cv-00368-DSF-MAN
v.
CRST INTERNATIONAL, INC., an Iowa MEMORANDUM*
corporation; CRST VAN EXPEDITED,
INC., an Iowa Corporation; ERIC
VEGTEL, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted January 11, 2017
Pasadena, California
Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,** Senior
District Judge.
Appellant Robin Anderson brought claims against Appellees CRST
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Faber, Senior United States District Judge
for the Southern District of West Virginia, sitting by designation.
International, Inc., CRST Van Expedited, Inc. (collectively, “CRST”), and Eric
Vegtel alleging sex discrimination under California’s Fair Housing and
Employment Act (“FEHA”), Cal. Gov. Code § 12940 et seq., and Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e. She also brought a claim against CRST
alleging retaliation under Title VII. 42 U.S.C. § 2000e. The district court granted
summary judgment to Appellees on all claims. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part and reverse in part.
We review a district court decision granting summary judgment de novo to
determine whether, viewing the evidence in the light most favorable to the non-
movant, there are any genuine issues of material fact. Surrell v. Cal. Water Serv.
Co., 518 F.3d 1097, 1103 (9th Cir. 2008).
We first address the FEHA claims. The California Supreme Court has stated
that “[o]rdinarily the statutes of a state have no force beyond its boundaries . . . .
Although a state may have the power to legislate concerning the rights and
obligations of its citizens with regard to transactions occurring beyond its
boundaries, the presumption is that it did not intend to give its statutes any
extraterritorial effect.” N. Alaska Salmon Co. v. Pillsbury, 162 P. 93, 93 (Cal.
1916). This presumption may be overcome if extraterritorial intent “is clearly
expressed or reasonably . . . inferred from the language of the act or from its
purpose, subject matter or history.” Id. (citations and internal quotation marks
2
omitted).
The text of the FEHA does not provide for its extraterritorial application, nor
does its “purpose, subject matter or history” suggest that the legislature intended it
to apply to extraterritorial transactions. Id. Thus, Anderson’s claims under the
FEHA fail because they are based on conduct that occurred outside the state. We
therefore affirm the district court’s grant of summary judgment to both Appellees
on the FEHA claims.
Next, we must decide the Title VII claims. No Title VII cause of action
exists against Vegtel because Anderson has sued him in his individual capacity.
See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Accordingly,
we also affirm this aspect of the district court’s decision.
However, we reverse the district court’s grant of summary judgment to
CRST on Anderson’s Title VII claim alleging hostile work environment. First,
Anderson presents evidence from which a jury could determine both that Anderson
subjectively perceived her work environment to be hostile and that a reasonable
woman in Anderson’s position would have perceived the environment to be
hostile. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ellison v. Brady,
924 F.2d 872, 879 (9th Cir. 1991). Indeed, such a perception could have been
exacerbated by the fact that truck co-drivers spend significant amounts of time in
close proximity with one another, and by the fact that this conduct occurred in a
3
compressed timeframe, over the course of three weeks. See Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (observing that determining
whether workplace behavior constitutes harassment “requires careful consideration
of the social context in which particular behavior occurs and is experienced by its
target . . . [and] often depends on a constellation of surrounding circumstances,
expectations, and relationships”).
Second, Anderson presents sufficient evidence to create a material dispute as
to whether CRST provided an effective remedy. An employer can escape liability
for hostile work environment if it takes effective action once it “knows or should
know of harassment.” Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.
1995); see also Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000)
(explaining that the employer’s response is critical to a hostile-work-environment
inquiry under Title VII, “[w]hich is why [the harasser’s] conduct, while relevant, is
not the primary focus of our inquiry”).1 The effectiveness of such action is
1
Our colleague quotes Brooks out of context. Brooks holds that “an isolated
incident of harassment by a co-worker will rarely . . . give rise to a reasonable fear
that sexual harassment has become a permanent feature of the employment
relationship” on the theory that “only the employer can change the terms and
conditions of employment.” 229 F.3d at 924. “[I]f the employer takes appropriate
corrective action, it will not have ratified the conduct. In such circumstances, it
becomes difficult to say that a reasonable victim would feel that the terms and
conditions of her employment have changed as a result of the
misconduct.” Id. Conversely, an employer may ratify harassing conduct by failing
to take appropriate corrective action, in which case a victim may reasonably feel
that the terms of her employment have changed.
4
“measured by the twin purposes of ending the current harassment and deterring
future harassment—by the same offender or others.” Fuller, 47 F.3d at 1528.
Here, the harassment stopped because Anderson and Vegtel were separated.
However, Anderson presents evidence that CRST never actually investigated her
complaint and never informed Vegtel of the fact that he was prohibited from
driving with female truck drivers in the future. Moreover, Anderson alleges that
CRST failed to reassign her to a new truck or new routes after she and Vegtel were
separated. We have held that an employer’s remedy is not effective even though it
stops harassment if the remedy targets the victim and puts her in a worse position.
See e.g., Ellison, 924 F.2d at 883 (finding ineffective remedy where employer
transferred victim to less desirable location); Fuller, 47 F.3d at 1522 (finding
ineffective remedy where employer offered to transfer victim to less desirable
location). And although CRST insists that it attempted to reassign Anderson by
sending her an email with a list of female drivers, the email provided no
explanation of what the list was or how it should be used. On these facts, a jury
could conclude that CRST’s remedy put Anderson in a worse position and was
thus not effective.2
2
Contrary to our colleague’s characterization, we do not suggest that CRST was
expected to anticipate Vegtel’s harassing behavior or that it erred by failing to
provide separate hotel rooms. Instead, our holding is based on CRST’s response to
Vegtel’s conduct after the fact. We conclude only that Anderson has presented
5
Because a reasonable jury could determine that Vegtel’s conduct was
sufficiently severe and pervasive to create a hostile work environment, and that
CRST failed to provide an effective remedy, we reverse the district court’s grant of
summary judgment to CRST on the hostile work environment claim.
Finally, we reverse the district court’s grant of summary judgment to CRST
on Anderson’s Title VII claim alleging retaliation. Under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Anderson
has made out a prima facie case of retaliation. Accordingly, the burden shifts to
CRST to state a “legitimate, nondiscriminatory reason” for firing her. Id. at 802.
Although CRST argues that Anderson failed to report to work, Anderson insists
that after filing her complaint she never received any work assignments, and there
is no evidence to suggest that she was obligated to find her own route assignments
from CRST. If Anderson did not abandon her job, then CRST has failed to proffer
a non-retaliatory reason for her termination. Because a reasonable jury could
conclude that CRST actually fired Anderson in retaliation for submitting a
sufficient evidence to create a material dispute as to whether CRST’s remedy was
“effective” or, instead, put Anderson in a worse position because CRST removed
Anderson from her existing route and then failed to offer her a reassignment or
return her calls to human resources. Moreover, our colleague’s statement that
CRST “attempted to give Anderson new work assignments” is a conclusion that
can only be reached by viewing the evidence in the light most favorable to CRST
instead of, as our law requires, in the light most favorable to Anderson. Dissent 3.
6
complaint against Vegtel, we reverse the district court’s grant of summary
judgment to CRST on the retaliation claim.
For the above reasons, we reverse the district court’s grant of summary
judgment as to CRST’s Title VII liability on the hostile work environment and
retaliation claims, but affirm the judgment as to the state-law claims against both
Appellees and affirm the judgment as to the Title VII claims against Vegtel. The
case is remanded for further proceedings not inconsistent with our decision.
AFFIRMED in part, REVERSED in part, and REMANDED.
The parties shall bear their own costs.
7
FILED
MAR 24 2017
Anderson v. CRST Int’l, Inc., No. 15-55556
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FABER, Senior District Judge, dissenting in part and concurring in part:
I agree with the majority that Appellant’s state law claims under California’s
Fair Housing and Employment Act (FEHA), Cal. Gov. Code § 12940 et seq., are
barred. I also agree that no Title VII cause of action exists against Appellee Vegtel
since he has been sued in his individual capacity. I respectfully part company with
my colleagues on the issue of whether the district court properly granted summary
judgment to Appellee CRST on Appellant’s Title VII claim that alleges (1) hostile
work environment and (2) retaliation. In my view, the opinion of the majority on
these points is not supported by evidence on the record and fails to follow the
teaching of the United States Supreme Court in relevant cases.
I. HOSTILE WORK ENVIRONMENT
I do not believe that Anderson has offered sufficient evidence from which a
reasonable jury could conclude that she was in a hostile work environment. The
United States Supreme Court has observed that “[i]f the harassing employee is the
victim’s co-worker, the employer is liable only if it was negligent in controlling
working conditions.” Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013).
Under such circumstances, “‘employers are liable for failing to remedy or prevent
a hostile or offensive work environment of which management-level employees
knew, or in the exercise of reasonable care should have known.’” McGinest v.
GTE Service Corp., 360 F.3d 1103, 1119—20 (9th Cir. 2004) (quoting Ellison v.
Brady, 924 F.2d 872, 881 (9th Cir. 1991)). As common sense tells us, an employer
cannot (and should not) be held liable for conduct of which it is unaware. “The
employer’s liability, if any, runs only from the time it knew or should have known
about the conduct and failed to stop it.” Swenson v. Potter, 271 F.3d 1184, 1192
(2001).
As this Court held in Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th
Cir. 2000), “an isolated incident of harassment by a co-worker will rarely (if ever)
give rise to a reasonable fear that sexual harassment has become a permanent
feature of the employment relationship.” As the district court in our case pointed
out, here there were two primary incidents of harassment over a three-week period,
incidents the employer knew nothing about until after the fact. The incidents could
hardly become “a permanent feature of the employment relationship” without the
employer’s imprimatur. Id. The employer never gave its approval to the
harassment Anderson alleges here. Before, during, and after these incidents, CRST
has endeavored to eradicate sexual harassment from its company culture. For the
same reasons, it is also no answer to suggest that the frequency of incidents
notwithstanding, the severity, the physically threatening or humiliating nature of it,
and the level of interference with the alleged victim’s work were so high that a
reasonable jury could find the conduct actionable under Title VII. See Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A reasonable jury could not find that
CRST’s conduct or inaction was frequent, severe, or physically threatening or
humiliating or that it interfered sufficiently with Anderson’s terms of employment.
CRST, when it did learn of Vegtel’s alleged misconduct, took immediate
steps to stop it. It prohibited Vegtel from working with female co-drivers, and it
attempted to give Anderson new work assignments that would not require her to
team up with male co-drivers. Furthermore, CRST had a policy of educating its
employees on the subject of sexual harassment, and a policy and practice designed
to prevent the very conduct of which Vegtel was accused. Vegtel may have
ignored what CRST had tried to teach him. The fact that CRST might have done
more does not overcome the fact that it did enough to escape liability under Title
VII. When “assum[ing] the perspective of [a] reasonable victim,” no reasonable
juror would find that the actions CRST took were insufficient to prevent a
recurrence or inadequate to remedy what allegedly had happened. Brooks, 229
F.3d at 924 (citing Ellison, 924 F.2d at 879).
Accordingly, I find no hostile work environment for which CRST can be
held responsible. All CRST did that could conceivably have contributed to a
hostile work environment was to require male-female driving teams to share hotel
rooms. To conclude that this practice, while ill-advised, alone created a hostile
work environment is to assume that every woman is vulnerable and every man is a
cad. See, e.g., United States v. Virginia, 518 U.S. 515, 541 (1996) (disfavoring
gender classifications based on “generalizations or tendencies”) (citations and
internal quotation marks omitted); Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 270—71 (1993) (providing an example of the fact that “women as a
class” are not a monolith susceptible of being typecast).
II. RETALIATION
I likewise find no evidence in the record to support the conclusion that
Anderson was fired because she filed a complaint. To so conclude is to base the
decision on speculation and little else. The fact that Anderson was discharged after
she filed a complaint is not evidence that she was fired because of the complaint.
On the other hand, there is evidence compelling the conclusion that she was fired
because she abandoned the job.
Even if we assume that retaliation was a motivating factor for CRST when it
discharged Anderson, an assumption not supported by any evidence, her claim still
fails under the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The United States Supreme Court recently held that, under
Title VII, it is inadequate for a plaintiff to show that discrimination on a proscribed
basis was one motivating factor for the adverse action. See Univ. of Texas S.W.
Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). Retaliation must be the “but for”
cause of the employer’s adverse decision. Id. at 2527.
If a desire to retaliate exists only among other possible reasons, the plaintiff
has not met her burden. There must be evidence that retaliation was the actual
reason for the adverse employment action. Anderson has not come close to
meeting this burden. On the contrary, CRST had a good reason to fire her—she
initially did nothing to accept her reassignment to team only with other female
drivers; and she went missing in action and could not be located despite CRST’s
efforts to find her. In effect, Anderson abandoned her post and was let go as a
result.
* * *
I would affirm the district court’s decision in all respects.