Cynthia Fuller v. Idaho Dept. of Corrections
694 F. App'x 590
9th Cir.
2017
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Cynthia FULLER, Plaintiff-Appellant, v. IDAHO DEPARTMENT OF CORRECTIONS; Brent Reinke; Henry Atencio, Defendants-Appellees.

No. 14-36110

United States Court of Appeals, Ninth Circuit.

Filed July 31, 2017

2. While this case was pending on appeal, we decided . There, we found that California’s meal and rest break laws are not “related to” prices, routes, or services, and therefore are not as a matter of law preempted by the FAAAA. Id. at 647-48 & n.2. The district court did not have the benefit of our decision in Dilts, and that decision compels the conclusion that the district court erred in granting J.B. Hunt’s motion for judgment on the pleadings on Plaintiffs’ meal and rest break claims.

3. The district court similarly erred in granting summary judgment in J.B. Hunt’s favor on Plaintiffs’ minimum wage claims. In Mendonca, we held that “[w]hile [California’s prevailing wage law] in a certain sense is ‘related to’ [the plaintiffs’] prices, routes and services, ... the effect is no more than indirect, remote, and tenuous.” 152 F.3d at 1189. In Dilts, we reiterated that the FAAAA does not preempt state wage laws, even if those laws differ from state to state and motor carriers must take these into account. 769 F.3d at 647-48.

VACATED AND REMANDED.

Erika Birch, Attorney, Kathryn K. Harstad, Strindberg & Scholnick, LLC, Boise, ID, for Plaintiff-Appellant

Phillip J. Collaer, Esquire, Attorney, Anderson Julian & Hull LLP, Boise, ID, for Defendants-Appellees

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

MEMORANDUM *

Cynthia Fuller was raped by an Idaho Department of Corrections (“IDOC”) co-worker, Herbt Cruz, whom she had been dating. She sued the IDOC and several supervisors, alleging violations of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, and Idaho tort law. The district court granted summary judgment to the defendants on all claims. In an opinion filed today, we vacate that summary judgment insofar as it involved Full-er’s claim that a hostile work environment was caused by the IDOC’s actions after she was raped. We affirm the summary judgment with respect to Fuller’s other claims.

1. Fuller argues that her rapes created a hostile work environment. But, the rapes occurred outside the workplace, and after the IDOC had placed Cruz on leave because of a criminal investigation into other non-workplace conduct. Because Fuller does not claim that Cruz sexually harassed her in the workplace or a related environment, or that he returned to work after the rapes, the district court properly granted summary judgment to the IDOC on this claim. See (requiring workplace conduct “sufficiently severe or pervasive to alter the conditions of the victim’s employment” (internal quotation marks omitted)).1

2. Fuller claims that she was constructively discharged because IDOC supervisors declined her request to inform the staff about a sealed protective order she had obtained against Cruz. But, even putting aside the sealed nature of the order, the IDOC had already removed Cruz from the workplace and responded to Fuller’s request by informing staff that he was not permitted on the premises, directing them to call a supervisor if he should appear. These actions did not create working conditions “so intolerable that a reasonable person in [Fuller’s] position would have felt compelled to resign.” (internal quotation marks omitted).

3. Fuller argues that she was denied paid administrative leave because of her gender. But, it is undisputed that, for budgetary reasons, the IDOC has not approved any request for paid administrative leave since 2008 under an administrative rule applicable to “unusual” situations. Fuller has not demonstrated that the IDOC’s continued refusal to approve leave for her “unusual situation”—as opposed to leave granted to other employees under provisions governing investigations or disciplinary actions—was on account of her gender. See (requiring that denial of a “privilege” of employment be discriminatory to violate Title VII); (requiring evidence that similarly situated males were treated more favorably).2

4. Fuller argues that her supervisor’s actions after she reported her rapes amounted to negligent infliction of emotional distress under Idaho law. Because she alleges only “a series of ongoing, discrete events or conduct,” rather than a “continuing tort,” any claim arising before November 16, 2011, is time-barred. (citing Idaho Code § 6-905). And, the district court properly concluded that the actions she alleges that occurred during the limitations period were not unreasonable. .

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Notes

1
The Ninth Circuit cases Fuller cites for the proposition that off-site conduct can contribute to a hostile work environment involve partial workplace conduct or conduct related to job performance. See ; ; Fuller, 47 F.3d at 1525-28. Similarly, the out-of-circuit cases that she cites all involve environments akin to the workplace, where the employer controlled how employees spend their off-duty time. See ; ; ; .
2
Fuller’s equal protection claim against her supervisors fails for the same reasons. See (requiring proof of gender discrimination for equal protection claim under 42 U.S.C. § 1983).
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