*1 Olano, other, the forfeited error.” 507 U.S. at offered at trial prove timely overt 734, 113 S.Ct. acts that alleged were not in the indict- ment. majority opinion
The cites Jerome as
support finding prejudice. Maj. for its
op. inapposite. at 962-63. Jerome is In CONCLUSION case, this court held the district reasons, For the foregoing I respectfully court had committed plain failing error dissent from Part II majority’s of the opin- sponte jury sua to instruct the that it must I ion. concur in Part III of the opinion. agree unanimously persons on which five Accordingly, would affirm Defendants’ acted concert with the defendant his convictions. continuing criminal enterprise. See Je- rome, 942 requirement F.2d at 1331. The
that a defendant act in concert with five or
more persons is an element a “continu- ing enterprise.” criminal See United Garcia, (9th 965, v.
States 988 F.2d
Cir.1993). explained,
As a district court FIELDER, Plaintiff-Appellant, Joanne must instruct on the elements of criminal offense even if the defendant does not ask Jerome, In it to. the district court failed CORPORATION, UAL a Delaware elements; to instruct on all plain that was corporation, Airlines, dba United here, error. But the district appro- court Defendant-Appellee. priately instructed on all the elements of and, Jerome, charged offense unlike No. 98-35511. gave unanimity instructions. What Appeals, States Court of district court did not do was instruct sua Ninth Circuit. sponte on the waivable statute-of-limita- tions defense. Jerome does not estab- Argued Sept. Submitted suggest lish—or even such omis- —that July Filed sion, prejudicial.
It noting also is worth majority that the
opinion’s analysis prejudice addresses
only the overt acts that alleged in the trial, At government
indictment. al-
leged produced evidence to prove —and —a acts, number of additional overt not al-
leged indictment, in the many of which
occurred within the period. limitation
government so; was entitled to do a con-
spiracy may conviction rest on overt acts in the Brulay indictment. See States, (9th
v. United 350-51
Cir.1967). In concluding that the overt
acts that strongly support “most a finding conspiracy” occurred outside the limita- period, maj.
tion op. at the majority
opinion letters, simply ignores evidence— calls,
records of telephone agree- sales
ments, and the government like—that the *3 OR, Medford, M. Guyer,
Thad *4 plaintiff-appellant. Bluth, Medford, OR, for the
Robert E.. defendant-appellee. ALDISERT*,
Before: KLEINFELD FLETCHER, Judges. Circuit W. ALDISERT; by Judge Opinion FLETCHER; Judge Concurrence by W. by Judge Dissent KLEINFELD. ALDISERT, Judge: Circuit appeal by This Joanne Fielder from judgment summary by entered district court, magistrate judge presiding, pres- questions ents of hostile work environment under VII of retaliation Title the Civil Rights § Act 2000e et U.S.C. by require seq. Appellant Issues raised us (1) by conduct decide whether non-su- pervisory non-managerial fellow work- by ers may constitute retaliation actionable employer, question first impres- (2) court, in this sion whether her claim is by 300-day of limita- barred statute occurred, from tions the date conduct 2000e-5(e)(l) (“[A] § charge U.S.C. by shall be filed or on behalf of the person days aggrieved within three hundred after practice unlawful employment ”), .... occurred or is still viable because * Aldisert, Judge, sitting by Ruggero designation. J. Senior Circuit, of Appeals States Court for the Third continuing policy practice of a lationship of dis- between Ms. Fielder and United (3) began crimination or retaliation and whether Airlines. She working at United Medford, estopped asserting Oregon she is from a claim Airlines on October permanent, 1978 as a part-time constructive discharge resig- because her custom- (“CSA”). agent er service Her timely. general nation was not flight duties included preparation, handling Appellant Fielder filed claims sex dis- baggage, taking reservations and seating crimination, constructive passengers. She took a furlough from . discharge against her employer, UAL Cor- 1981 until June 1984. After returning, she poration, dba United Airlines. The court continued to work for years, almost ten determined that her claims were barred 20, 1994, April until placed she was the statute of limitations on medical leave at her request. estopped asserting her constructive The record indicates that Fielder had discharge claim because she did timely subject been to sexual harassment for a resign. disagree. We Ap- We hold that long period of time employ- pellant presented has sufficient facts that ment. The series of incidents commenced give genuine rise to issues of material fact co-worker, M.C.,1 when her began to sexu- relating statutory present- limitations in ally harass her. She testified that he ing her discrimination claims and the time- *5 frequently shoulder, back, would touch her liness of her resignation. hips job. arms or while on early As The district court had federal question 1991, she him explicitly told to stop touch- jurisdiction pursuant § to 28 U.S.C. 1331. ing continued, her and that if he she would parties The executed written consents for legal obtain pursue counsel and a claim entry judgment of final by magistrate However, against him. Id. he continued 636(c). judge. § 28 U.S.C. This court has incident, this offensive conduct. In one he jurisdiction 636(c)(3) § under 28 U.S.C. pinned departure her to a board with his (appeal from magistrate judge) and 28 back and wiggled his rear end her. § U.S.C. 1291. The appeal timely was incident, In another picked and, he up her 4(a), filed under Rule Federal Rules of screams, ignoring her her twirled around Appellate Procedure. so hard she assigned became ill. She has Summary judgment appropriate particular no to dates these incidents. file, together “admissions with the 13, 1993, February On while she was ... affidavits show genu that there is no in checking passengers, M.C. leaned over ine issue as to any material fact and to go her asked her to to bed with party moving judgment is entitled to as a him. He did this front of numerous 56(c), matter of law.” Rule Federal Rules during customers peri- one of the busiest Procedure; of Civil see Ange Green Los pre-flight preparation. ods of public County Superintendent Schools, les prevented nature of this act her from re- (9th Cir.1989). F.2d 1472 We review mo sponding or reacting. She went home im- tions summary judgment de novo. mediately after checking passen- her Rochester, Draper Inc., v. Coeur gers. That night M.C. made the last of (9th Cir.1998). 1104, 1105 phone three obscene calls he had made to her during period home from I. mid-1992 to February During 1993. his call, We must set forth in some detail the third repeatedly he asked her if she historical and background narrative of an was naked and he told her he wanted to unfortunate, sordid, later, if employment not re- days “eat” her. Five Fielder report- trial, go 1. Because this matter will we have names. parties by decided not to refer certain their working from shift.2 supervi- prevent M.C. her
ed the harassment her sexual sor, attorney Her who two Bibler. consulted wrote Ted She phone touching harassing 11,1993 7,1993 April unwanted letters on March Bibler denied when calls-allegations M.C. demanding he allow to Bibler complaint. with the confronted him shift.3 M.C. bid onto Fielder’s later, to the A confessed days few M.C. agreement in M.C.’s diversion Included the obscene placed that he had police re- was no-contact-with-Ms. Fielder calls, into a and as a result entered phone could quirement, which mandated he July agreement criminal diversion shift as Fielder. How- not work the same him, but before the reported After she inevitable, especial- ever some contact was did July agreement, Bibler 1993 diversion during changes. ly shift Further- protect little her from M.C. strongest repri- gave Bibler M.C. the more, told not to discuss Bibler her possible short final mand of termination-a Conversely, incident her co-workers. However, warning. testi- written incident, allowed to discuss the was her unsupportive fied that Bibler was co-work- and he was able convince their agreement, diversion right. once ers that he was in the About M.C. was allowed bid onto shift on weeks, Bibler to every Fielder asked two only number of occasions. It was at her continuing M.C.’s harassment stop both that he removed. insistence Some- receiving and the retaliations she night times he until alleges that Bibler removed her co-workers. She refused to very did little assist before the shift. told, working put any- explained didn’t
2. Fielder environment was even out. Ted want deposition: response and her to it in one to about And then know it. me, ganging up against as if I had been over- Joanne, constantly say, would *6 Ted [Bibler] afraid, reacting something.... yet was I or I you. them As could do can’t make like if he say nothing. was told the ru- to Meanwhile nothing, nothing, what would do to enforce on, nothing. grinds mor Ted mill does company’s responsibility the to I considered Depo. Plaintiff at 200-202. environment, working provide decent I so busy flights in those and do could check 7, attorney’s April 3. letter Her read: gate operations.... time I the those From forward, agree- came ment, until diversion [M]y extremely concerned about client trying my to was bid on shift. [M.C.] situation, given your this the fact that in death And [M.C.]. And I scared to you may letter indicated that be reas- [M.C.] time, every keep in order from each and to signed very to Ms. shift in the near Fielder's shift, working my go [my I had to to aware, you future. As a criminal are letters, get attorney].... to which I had [M.C.], charge against been which has filed Airlines, back which could take to United dealings directly to Ms. relates his with put guy said: Don't on her shift until this point, Fielder. At this has a court [M.C.] has this matter been settled. 3, appearance May scheduled for 1993 on something perceived hostility That is charge. appear- that criminal That court support protection my and lack of may may ance not the end of the court I, company.... person who came for- proceedings. crime, report put ward to at odds this important you, It is as Ms. Fielder’s my with Ted informed co-workers.... Airlines, supervisor, and em- United as her say anything me about not to this situation ployer, aware that condi- to be her emotional any my coworkers. cannot, not, any and will tion tolerate contact quote, polarize he And I said would with under circumstances. The [M.C.] these Well, immediately retaliate office. started to difficulty regard which has created been with me, day I came forward that actions, scheduling is the of [M.C.’s] result report put] my him.... ex-husband’s [He my A risk does occur that those of client. address in return the front his mailbox.... returning Fielder’s could Ms. shift agents [M.C.] But told had went and the other what occupational injury lead to on her happened. taking an claim people And seemed to be part as a result of the that this situation stress his side. place would on her. very beginning, Sides were taken at information, 4/7/93, at 1. before of the as I had been Letter from Mueller to Bibler of employees complained Other female Fielder’s attorney wrote two more let- behavior, ters, including Bibler about M.C.’s dated September June 1993 and an phone, about obscene call. formally which informed Bibler of Despite complaints other about con- M.C.’s retaliatory working environment that duct, Fielder contends that1 she was ostra- developed towards Fielder. The let- reporting supervisor. cized for him to their ters advised Bibler of the hostile treatment Rossi, co-worker, Joe testified that other and attitudes of other employees towards employees her. While she was shunned Fielder.4 He requested Bibler address the working, they would often refuse to an- situation and stop retaliatory conduct questions swer technical she raised. As a of employees. result, adequately she was less able to The record indicates that retaliatory perform job. Fielder testified that acts continued. Rossi testified that co occurred, various incidents including S.R., R.M., workers A.H.'and L.P. became episode where she left her coat at the more hostile towards Fielder after she re office and came back the day next to find it ; ported M.C.’s Depo. harassment Rossi inup muddy the corner with wadded foot- In August representative prints on it. Nellie Yuret held a seminar on sexual Fielder states that particularly S.R. was harassment at the Medford station. Field retaliatory towards her. He was her coor- er described Bill Bruce as “ex dinator the employee who acted as ploding” at the seminar and accusing her manager manager’s absence. He fabricating harassment Im punish would fellow who dis- seminar, mediately after the spoke she him pleased by withholding job required requested Bibler Yuret and workers, assistance. For example, two they approve her pending, transfer request CSA and the load planner, required are application, in which she requested a move unload baggage plane. from a It was to Portland or Assuming Seattle. that her job S.R.’s as the planner help load un- application transfer granted, would be load If plane. displeased a co-worker put a bid on a condominium in Portland him, he would withhold this assistance. shortly after the seminar. United chal that S.R. sexually ha- lenges finding, there emphasizing occasions, rassed her on a number of see testimony that Fielder did not want 82, 158-159, Plaintiff Depo. at and that *7 leave thought Medford that she and S.R. made comments towards Fielder and just situation any city would continue in other women employees as having “great where she transferred. boobs,” “I anyone and wouldn’t use else’s A supervi- co-worker and intermediate up cock Plaintiff Depo. her.” at 158-159. sor, R.M., screamed at Fielder in front of conduct, After reported Fielder S.R.’s he employees telling other her she had her would withhold his plane-loading assis- up “head her ass.”' tance. Id. at 161. Rossi testified that job S.R. also withheld put assistance for her after she on R.M. did this he her M.C. because blamed for report. Id. at inability 193-194. M.C.’s to be on the same shift as pertinent 4. portion April employees changed of the 11 letter toward her has dramati- reads: cally since the with [M.C.] incident Mr. has conduct, reported. been Under the United Airlines code of employee obligation employer It protected against ah is the of the to main- is to be retalia- workplace reporting tion tain a of sexual that is free of such retalia- Unfortunately, by appears harassment. tion and conduct that one toward client, failing obligation my United Airlines is in this another.. On behalf I would provide protection respectfully such request you to Ms. Fielder. On that address this is- occasions, reported several you employees she has sue with the other in the work- by employees place, conduct that does consti- to it see that no further conduct of against tute direct type or indirect retaliation her. this occurs-in the future. 3/11/93, The attitude and behavior of Ms. Fielder’s Letter co- from-Mueller to Bibler of at 1. iron safeguards another occasion wanted to out some that on her. He said me, that was with she “neurotic so I feel comfortable R.M. told her that could into the day when she walked sick.” I had my finally One M.C. on shift. realized told to “leave shop, R.M. airport coffee that was else do to nothing there could not here.” Fielder [y]ou ... are welcome thought, keep my him' off shift. So delayed flight to that R.M. also testified if we rules perhaps, have some concrete being not able to work protest M.C. paper, everyone regulations on as Fielder.5 same shift signs, work agrees to and that we could together. was that the environment She testified cry that she would so towards her hostile Bibler refused E.R. 17. to hold daily. Cecilia in the almost restroom meeting. told He M.C. would co-worker, Johnson, agreed that act improper commit some other was stressful working environment any further ac- before United would take retaliated often her. made protect tion She clear the envi- testified that Fielder.6 Others that she guarantee she wanted United to to women. generally ronment was hostile M.C., physically separated would be from where ramp, Rossi claimed harassment and that would free his she physical, some of the men very work is Bi- gate have work with him. consistently work to give would harder these Id. bler refused demands. women. Fielder was warned M.C.’s diversion him went-to Bibler and asked Fielder he is of the of his officer that “one scariest “[p]lease, agreement when the diversion types, enough he’s to walk smart away me. I’m up, please keep him line.” foot on both sides of the one very him.” E.R. at 15. much afraid of Plaintiff Depo. 252. Fielder testified program criminal diversion When M.C.’s that because of that statement and her end, arrange an coming was she tried past experiences, extremely wor- she Bibler, M.C. and others to meeting with might ried that he hurt her. As a result of agreement regarding work M.C.’s out meeting Bibler’s refusal to have the if he were allowed to work on her conduct guarantee safety, shift. Fielder testified otherwise working spread explained more to be over of us 5. Fielder environment work out Lhose there, deposition: and R.M.’s reaction in her [M.C.] than if had been there. Q: being friendly Depo. at than Plaintiff 193-194. Other you, speaking you, and not warm toward any, environ- problems, if Johnson testified about the work what other were there deposition. time period [while ment in her agreement]? his criminal diversion Q: working you had to en- If describe daily problem A: of [S.R.] There left, you vironment around the time how backing up ramp on the or the never me you would describe it? *8 ticket counter. created a constant en- This A: Stressful. your job of—it hard to do vironment was Q: talking you recall Joanne ever to Do you you when knew had to do more than you about the that felt she she job. your to trying what was I was work getting? was very, very up lack fast to make for the of A: Yes. my support from coworkers. Q: you with or Did she discuss whether delay- was Then there the incident of [R.M.] not she had talk with Ted Bibler about ing airplane, al- wasn’t [M.C.] because that? On lowed to work an overtime shift. A: know she did Ted at Yes. I talk to actually working morning we were one shift different times. I think Ted’s atti- several might only peo- short. There been four you to tude was sort of: do want me What ple flight check in. And on shift do? Q: kind of attitude. That signed was furious [M.C.] because [R.M.] surprise you? and, Did that up for the overtime because the diver- of A: No. agreement, sion was allowed to [M.C.] E.R. at Consequently, work the shift. there was 28. Bibler, reported April medical leave 1994. She When she he went on told and that leaving she was causing upheaval airport told Johnson she was at the on, just gone too much that had “there poor judgment and that she “showed com- would not at Medford she work ing airport out at all.” Fielder again.” E.R. at 27. Because her station Depo. at She claims reprimand 284. it is request pending, for transfer was still was public, because one could hear unclear if meant she would never through his office doors and two she saw again for United or not in United’s work standing of her co-workers within a few Medford station. feet of the door she left. Fielder made successful claim for that the left reprimand Fielder testified 18,1994, compensation on August worker’s impression her with the that she should no injury date as April and the was listed longer go airport Medford for Thereafter, began attending she Depo. reason. Fielder at 284. a re- As therapy approxi- rehabilitation sessions sult, airport; not return she did to Medford September three mately times week. On had to fly, whenever she she went to Port- airport Fielder returned to the land, or Eugene Redding. She testified flight. her mother onto escort a United go that she want to did to the Medford aircraft, she boarded the Rossi came After airport repri- believed Bibler’s and, plane the flight onto the front of gave approval mand tacit to her co-work- attendants, mother, passengers and her against ers to if retaliate she re- that Bibler her in told her wanted to see turned.7 immediately his office and that there was Bibler that he Field- spoke “some trouble with testified with [her] co-workers being airplane.” on the at 21. explain employ- [her] E.R. er to frustration other me, explained against deposition 7. Fielder in her her ver- ed Airlines I know that I which happened day pulled sion of what she was be—I do could would not not feel that I flight: off the baggage flight check or check into a Q: alleges you airport aircraft at Your board an free from interference, disciplined filing for ac- sabotage, derogatory criminal com- you ments, [M.C.] tion plined? How were disci- other harm. or Q: type other What of harm? pulled airplane. A: I was off of an I was Being put A: in a seat which would be my presence airport told that Having seated uncomfortable. someone coworkers, causing upheaval among my intentionally, next to me who would be poor judgment coming I showed and that that, guys put used to do offensive. airport though I out to at all. Even people people bother next who would approached once never the ticket counter to just get people, them. even with my proceed- employees. fellow I encounter checked, bag being delay Or check directly gate, my ed to the access to cleared someplace and hold it back. Or have some gate agent, and the aircraft with the then mistake, little which would inconvenience a once, again, wearing badge my while at all flight make it uncomfortable. know I times, flight cleared with the A attendant on going how feel about me. I'm not board. way put myself problems or cause .harms my Since I was told Mr. Bibler myself or for them. causing airport at the presence such an Q: you feel that Mr. com- And Bibler’s upheaval, stepped I have not one foot in the you day disciplinary ments were a County Airport. Medford Jackson travel action? Portland, Eugene, out and out now out office, Yes, A: do. Ted set the tone of the Redding, any place. go whenever I want to reprimanded which Joanne was said right privilege I have been denied the there, being I was not welcome out *9 flying Airport out Air- United of Medford airport. that lines. Q: "denied,” you say When this is based Q: you anybody if else in ask there was [I your conversation with Mr. Bibler re- alleges your complaint because office] sulting day you from the when were assist- publicly reprimanded were and you that ing your mother? assisting your A: is correct. And harassed for disabled mother That also hostile environment that I know exists Unit- onto the airline. still He admitted flights. onto airport she came to members ees felt because onto typically that his children he escorts her leave to assist mother on medical while aircrafts. he He that did not flight. claimed onto was or that she her disabled transfer
know mother United did act on Fielder’s Instead, in Fall request. onto the aircraft. He helping her was Seattle, worker another to transferred her went with mother simply thought she Johnson, seniority who than had less However, to and see her off. to talk her was testified that she Fielder. Johnson an policy against is admitted there no he request ap- was quickly how amazed seeing off relative.8 employee On Fielder’s doc- proved.9 May that an employees Rossi testified have tor back work on the go released that family their she not work at United. practice escorting condition informal Q: Well, practice it a to assist relatives onto and and had Is [S.R.] [R.M.] [A.H.] A: go just They plane, saw gone to all me assist? [Bibler]. Ted to Ted. walls are thin. that aware of. there talk A: Not I'm out, Q: co-workers], you [two When I came I be- did ever that And Joanne admit standing sitting talking within two or three feet just lieve were to her had been there she through the of the You can hear you door. airplane? on the she tell mother Did doing? door. Q: what she had been though you were in office So even an talking to is Yes. She was her mother A: door, you you pub- said, with a feel were closed seeing her mother off. what reprimanded licly Q: and harassed? your Were that other concerns more Yes, pulled I publicly A: because off of was people upset or that was vio- Joanne passengers, airplane in front other lating you thought- policy some mother, my And whom I knew. in front My concern was more with the sensitiv- A: very upset by who incident. That was trying get employee group to ity embarrassing. very was And front of together try and and understand one work flight gained had access attendant I another, I’m opposed as violation. from. Yes. probably had done sim- sure added). (emphasis Depo. at 283-286 things, forth, just I was ilar and so but process. concerned about his 8. Bibler also testified about incident in Q: assisting? a policy Is there deposition: policy? say A No. I would that there A: Q: anything you do And what if did at that certainly policy to do it. is—there point? say that it's never been done or it To time, working at A: Joe [Rossi] done, say. certain- has been I can't But it's know, you and I of Joanne— because said'— policy routinely. ly not a to do it said, awkward, very I know it's but if she I added). Depo. (emphasis Bibler 39-42 two, really or like to talk has moment I’d my to her. And Joanne came into office explained Field- transfer and Johnson left, said, after And her mother I believe. I deposition: intention to in her er’s move Joanne, know, you but, recognize your rights Q: you up trans- At the time moved know, you very it is a sensitive issue in Seattle, your seniority ferred to what office, just got be aware. And she compared to Joanne’s? defensive, very basi- the conversation probably about four more A: She cally probably only a ended. I think it was just years guess. that I But I do. That's long minute two she left the office quite know that she does have a few more upset. very Q: years than I do. practice What is the Q: you whether or not she Do remember may of United Airlines has a relative who you put transfer before or after discussed may What disabled or need assistance? request your transfer in? practice that? before, It had to been A: A: I didn’t know her was disabled. mother in, me, put my it when I transfer was—to it know. Is she? I don't Q: through Well, just amazing that went so example. general, say pre- actually And even quickly. I wasn’t any employee A: I know of in the don't it, pared for I did it. practice go but not a on the office—it is Q: relatives, purchasing— Did she ever discuss airplane talk I’m purchasing say happened, meaning aware "she” Joanne —discuss of. To it's never in Portland? don't know. a condo
983 9, 1995, Angeles Cty. filed an unlaw- Green v. May Superintendent Fielder Los On Sch., (9th Cir.1989) 1472, employment complaint 883 F.2d 1480 practices ful of cases). Oregon (citing Bu- against United with the State of and on reau Labor and Industries Octo- A plaintiff continuing satisfies the 25, 1995, in the district complaint ber violation doctrine when he or she shows court United’s granted court. The motion practice “continuing policy and of discrimi summary judgment and dismissed the nation on a company-wide basis” and that ease because the discrimination policy practice operated “[the] and at least 300-day place within the limitations taken part period.” within the limitation Id. resignation and period Fielder’s was not applies It plaintiff also when a alleges timely to qualify discharge. as constructive acts, “series of related one or more which falls period” within limitations
II. only and when discriminatory few acts place took during the limitations period, may a suit filed under Before Title but part these acts were of an ongoing VII, 2000e, § 42 a plaintiff U.S.C. must unlawful employment practice. Id. file a Em- complaint Equal either with ployment Opportunity within Commission alleges Fielder that a company-wide pol- days of the violation or within 180 icy practice and of discrimination resulted 300-days plaintiff initially if the instituted environment, in a contending hostile work proceedings appropriate with the state Bibler, that her manager, contributed 2000e-5(e)(l); § agency. U.S.C. see the hostile work environment and that Angeles Mueller v. Dep’t, Los Fire remedy failed to the hostile work (9th Cir.1980). 616, environment created M.C. and her co- § workers violation of U.S.C. 2000e- Because Fielder filed unlawful em- (sex discrimination). presence The mere practice ployment the Ore- of her in the workplace, harassers State Bureau and gon of Labor Industries argues, maintained the hostile work envi- May 9, 300-day period ronment limitations period recognize that we must We address. thus rubric comes within the of a continu- emphasize period this limitations cov- ing theory. violation those ers incidents that occurred between July 1994 and 1995. Conduct May alleges subject Fielder also that she was place prior period that took is not to a discriminatory series of related continuing actionable unless the violation acts, retaliatory managers because her theory applies, Draper, see 147 F.3d at supervisors retaliated her and en- theory and it is this that commands couraged employee retaliation against her our attention here. for reporting harassment sexual viola- 2000e-3(a) (“It systematic policy § tion of 42
[A] discrimination U.S.C. shah be practice is actionable even if or all of an unlawful employment some for an inception employer evidencing against any events its occurred to discriminate his period. to the prior limitations The rea- ... he has opposed continuing system practice son is that employment made an unlawful ”). operates against practice.... discrimination the em- claims that she ployee rights or her up permitted previous violates his to sue for acts of dis- crimination, point falls just time that within the for those that fell applicable period.... period, limitations within the limitations because the Depo. A: Yes. Johnson at 60-61. Q: youDo remember when was? No. I
A: know that one time we went to Portland, by place we drove that she had looked at with her mother.
984 14, by work environment can be created 1994 was suffi- tile July prior
conduct employees. lower-level subsequent events. ciently related Valley v. Utah State Gunnell In summary for a motion To survive (10th 1253, 1264 Cir. College, 152 F.3d satisfy period failure to judgment for 1998), for Tenth Appeals the Court a must plaintiff requirement, of limitation be employers may Circuit concluded disputed fact as “a issue of genuine raise co-workers, be by liable violation,” continuing to the existence a employment actions are cause adverse 1108, also F.3d at and must Draper, 147 ultimate decisions. employment limited to exists genuine a issue “demonstrate hos explained The court “co-worker into violation continued as to whether harassment, retaliatory or if suffi tility Id. period of limitations.” the relevant severe, ciently may constitute ‘adverse raise a sufficient required Fielder is re purposes action’ for of a employment the sex discrimina as to whether question Id. we taliation claim.” To decide whether prior to tion and retaliation that occurred adopt approach, may we look should 14, 300-day into July 1994 continued guidance in from other decisions period. actions in employment courts. Adverse legal the vari- elements of Because clude actions such as demo “employer envi- VII violations-hostile work tions, ous Title disadvantageous assign transfers or different, ronment and retaliation-are ments, promote, unwarranted refusals respect allegations consider the “[w]e negative job evaluations and toleration of determining theory separately, to each Wyatt by employees.” harassment underlying (1st of the events Cir.1994) whether Boston, v. 35 F.3d 15-16 these within the relevant added); claims occurred v. (emphasis see Knox period (7th Cir.1996) of limitations.” Id. Indiana, 1334 a form
(“Nothing why indicates different retaliation-namely, retaliating against a III. complainant by permitting her fellow em threshold now must meet a We ployees punish invoking her for question by of whether conduct co-workers rights under Title VII-does fall within may supervisors who are not liabil impose statute.”). claim, ity employer on the on retaliation the interpreta We are of view that question in this court. open is tion of an as employment adverse action Clearly, may vicariously held employers expressed by Appeals the Courts of of the liable for hostile work creat environments First, and Tenth Circuits is con Seventh Inc. by Burlington ed Indus. supervisors. plain 42 language sistent with Ellerth, 742, 765, 524 U.S. 118 S.Ct. 2000e-3, § makes “unlaw U.S.C. which (1998). 2257, 2270, 141 633 L.Ed.2d against any employ ful ... to discriminate subject An lia- employer vicarious court explains, ees.” As the Wideman bility for an victimized “the term is not limited to ‘discriminate’ ” created actionable hostile environment employment ‘ultimate decisions.’ Wide (or by supervisor with immediate suc- Inc., Stores, F.3d man v. Wal-Mart authority em- cessively higher) over the Cir.1998). (11th If the statute ployee. tangible employment no When manner, in a interpreted were to be strict taken, employer action defending long at will employers could retaliate so lia- may raise an affirmative defense ulti the retaliation does not constitute an bility damages, subject to proof mate decision or rise to employment preponderance of the evidence. discharge. Be level of a Id. constructive traditionally recognized Id. at 524 at 2270. cause we have U.S. S.Ct. hold, VII, if an hos- role Title we We must now decide actionable vital remedial *12 therefore, protection that Title VII’s A. against retaliatory discrimination extends We are satisfied that Fielder met liability for co-worker retalia- employer prong proving the first of continuing the
tion rises to the of an that level adverse ably violation. She presented abundant action. employment environment, evidence show hostile
contending manag that the conduct of er, Bibler, fostered an environment that IV. harass, employees “allowed fellow de against fame and her. Em discriminate” question We now must decide the crucial ployers may be held liable for vicariously Appellant of whether met her burden of failing remedy by sexual harassment setting forth sufficient facts of a hostile management when knew or genuine work to constitute a environment should have known of harassing behav preclude issue material fact to summary of Inc., ior. Nursery, Burrell Star 170 against Her judgment her. contention is (9th Cir.1999). F.3d 955 alleges She theory anchored that the events management that had actual of knowledge place 300-day took after time the harassment and retaliation employ period came within the rubric con- ees, M.C., S.R., R.M. such theory. tinuing violation attorney she and her brought to her supervisors’ attention number of times. A hostile work environment ex subjected Fielder testified that she was shows; “(1) a plaintiff ists when that he or advances, requests sexual for sexual subjected advances, she was to sexual re favors and physical other verbal or con- favors, quests for sexual verbal or duct of a sexual nature and that M.C. (2) nature; physical conduct of a sexual began harassing years three unwelcome; (3) that this conduct was disability before she went on leave. She sufficiently the conduct was severe or shoulder, testified he touched her pervasive to alter the conditions of the back, or hips arms while she was on the victim’s employment and create an abusive job and described incidents working v. Brady, environment.” Ellison rear “wiggled” against his end her and Cir.1991). (9th 875-876 twirled around so hard became We she sick to her He stomach. also committed examine elements of these claims phone against harassment her on three perspective person reasonable of the occasions, separate which included vulgar gender-here, victim’s from the perspective propositions sexually sexual inappro- of the “reasonable woman.” Id. priate comments. “A ‘hostile work environment’ occurs Supreme Court teaches a pattern when there is of ongoing and inquiry [appel “[t]he correct whether persistent enough harassment severe by her conduct indicated that lant] alter employment.” conditions of unwelcome, sexual advances were Draper, 147 F.3d 1108. Most instances not whether her actual ... participation capable hostile environments are not voluntary.” Savings Meritor Bank v. “[Ijnstead, facile identification. the day- Vinson, 57, 68, U.S. S.Ct. to-day signifi- harassment particularly [is] (1986). L.Ed.2d 49 When threat cant, legal practical both as a and a mat- him, legal to bring ened action ter, in its cumulative effect.” To Id. satis- it clear made to M.C. his conduct was fy continuing theory, violation Moreover, unwelcome. the numerous plaintiff must show that hostile environ- complaints supervi communicated to her ment exists and it continued the peri- into sor and others made it clear to United od of limitations. M.C.’s conduct was unwelcome. We now difficult, second, escorting her mother onto and more from Bibler
turn to the plane. may incident be consid- con- This Did the hostile environment question: and has example ered an of discrimination limitations? period tinue into the to reflect co-worker retalia- capacity tion, employer retaliation and refusal B. remedy working a hostile environment. previously reserved the haveWe *13 into in re- Bibler called Fielder his office Title VII limitations question of whether her sponse complaints by co-workers. an “act” within the requires overt period They may complained have because she mere of presence period or whether may against retaliated they was out sick or sufficient workplace in the is the harasser reported because she M.C.’s conduct. her liability. Draper, employer give rise unlikely they objected only It is n. 1. We have stated 147 F.3d plane escorting act of her mother onto the requir as to whether “we reserve decision because, indicates, as the record showing appropriate is ing such a family employees often escorted their a hostile work environment context of flights. It members onto their airline’s is claim, a work environ given that hostile an of material fact these issue whether ambient and that persistent, it ment is and employees sought to have Fielder disci- manifes to exist between overt continues reasons, i.e., non-discriminatory plined for question Id. do not meet this tations.” We they simply unhappy whether were here, by because we urged Appellant, as escorting while her she was sick leave overt are that at least two acts satisfied retaliating they mother or whether were they ques relate to the place did take activity. long her as the protected So as well as retaliation. tion of discrimination has the capacity being conduct consid- persuaded although we should We are retaliatory, ered it becomes issue allegations consider of discrimination repri- the fact finder. Bibler Whether evi separately, much of the public Fielder in retaliation for manded by germane presented Appellant dence making complaints against or for oth- M.C. concepts. to both jury appropriately er reasons is also question. could His admonition be consid- to see if the acts We first look retaliatory ered he language because the period of limitations 300-day chose, poor judg- her she telling “showed same discrimination as type involve the all,” airport at coming may ment out to the We period. those committed before reasonably with the im- have left Fielder whether there is common inquire must discrimination, pression go to that she should not type of as sexual or such Nevertheless, harassment, airport again. Medford or if there is a gender-based action, non-discriminatory could been for employment common kind of such It disputed reason. is also a issue fact repeated as See promotion. denial Co., reprimand encouraged whether Bibler’s Paper v. International Wattman (5th Cir.1989); retaliatory by Fielder her behavior F.2d v. Pe Glass had a repri- co-workers. Fielder fear of Corp., tro-Tex Chemical Cir.1985). (5th pur- other who might sals from Every 1561 n. 5 incident of engage her posefully luggage lose period discrimination before the limitations acts, retaliatory because type, long of the so need same past done these acts in the corresponding type there is a of discrimi Bibler’s rebuke indicated that Fielder period. nation within the airport.
not welcome at the C. a jury reprimand If finds that Bibler’s retaliation, an act of it becomes an episode The first within the relevant was period reprimand is the Fielder received issue of fact whether the retaliation was of 300-day the same kind before the ness move to a different so city that she retaliatory manage- acts period. could continue to work for United. She ment, limitations, period before the remedy problem by offered to trans- refusal to prevent Bibler’s ferring, but United declined to take onto before the di- bidding Fielder’s shift action, thereby maintaining quo the status acting agreement, manager version S.R.’s hostile environment. The brute fact job give required refusal to assistance person seniority that a with less received supervisor screaming R.M.’s Field- issue, too, the transfer. The transfer pres- ass,” up er that she had “head jury question ents on the issues of dis- telling her she neurotic sick and crimination and retaliation. telling later her she was welcome in airport shop. alleges coffee V. motive behind these acts was re- Generally, to determine whether *14 against reporting taliation her for continuing violation doctrine applies, It jury is for the to decide whether ... question “[the] boils down whether for the employee motive sufficient evidence supports a determina 14, July
was the same before and after alleged tion discriminatory acts alleges 1994. Fielder are closely enough related the acts [to would refuse to answer her technical ques- Green, period].” outside the limitations tions, preventing thus from adequately (internal F.2d at quotations 883 1480-1481 job, doing her that her coat soiled by omitted). and citations Ap The Court of employee co-workers publicly Bruce peals for Fifth Circuit set forth a lying accused of about M.C.’s harass- of determining number factors to assist in ment a sexual harassment seminar. a presence relationship vel non of close testimony There is also from Rossi that Berry in Supervisors, v. Board 715 F.2d of the attitudes of Fielder’s co-workers be- (5th Cir.1983), 981 we but are not came much hostile more towards after analysis convinced that is properly this she reported the harassment. suited for a hostile work environment.10 Rather, previous we are satisfied with our
D. in teachings respect: this We turn now to United’s refusal A continuing may violation thus es- be transfer Fielder. The refusal trans only tablished a demonstrating may fer her be evidence that United failed company-wide of policy practice, but also steps reasonably to take calculated to rem by demonstrating a series related acts of edy environment, a hostile work see Bur rell, single a individual.... In the 170 F.3d at and this constitutes instance, an act. expressed willing- question overt a ... “[the] later boils Berry "equal gender pay” assignment employ- an discrimi- an or isolated work 10. factor, case perhaps nation and it set forth certain factors that ment decision? The third may be considered acts whether discrete importance, degree perma- most of of is capacity continuing to constitute viola- degree nence. Does the act have the of emphasized tion such court in a case. The permanence trigger which should an em- inquiry, necessity, of turns on the "[t]his ployee's duty awareness of and to assert his particular facts and context each case” and rights, or her or which should indicate to stated: that the continued existence consequences the adverse this act is Relevant to the determination are fol- expected being dependent without a on factors, discuss, lowing three which we but continuing intent to discriminate? by no means consider to be exhaustive. Berry, 715 F.2dat981. subject alleged first matter. Do the analysis Whatever the value when type acts involve the same of discrimina- tion, comparing compensation according gen- tending to connect them in a continu- der, persuaded ap- ing we are not are frequency. violation? The second is determining (e.g., propriately applicable recurring Are in the con- acts a bi- weekly paycheck) more the nature of tinuation of a hostile environment. eight because Fielder waited sup- evidence barred sufficient to whether
down ‘alleged that the alleged reprimand before ports determination months after closely discriminatory acts are related quitting. continuing viola- enough to constitute ” A.
tion.’ County Superinten Angeles v. Los Green Subsequent magistrate to the Schools, 1480-1481 883 F.2d at dent case, held judge’s decision in this this court Co., Elec. Western Bruno v. (citing period that the limitations construc Cir.1987)); (10th see also F.2d begins claim to run on' the discharge tive (refusing F.3d view Draper, 147 employee’s resignation. Drap an date of humiliating response” laughter “snide er, resigned 1111. Fielder without reference event as an isolated May We have said that “[a] 1995. it occurred in which the circumstances discharge per constructive occurs when case). hostile environment job under circum quits his [or her] son the ratio- adopting areWe satisfied person in which a reasonable stances Draper sufficient nale Green of employ feel that the conditions would conclude here that the for us to enough Id. at ment have become intolerable.” the limita- occurring within two acts overt discharge place Constructive takes related to the closely were so period tions simply individual “has *15 previ- and retaliation acts of discrimination enough; simply or she can’t take [he] by Ms. to experienced Fielder as ously anymore.” presented Id. Fielder has am continuing of a viola- trigger operation the jury which a ple evidence from could find We are satisfied that consid- theory. tion working intolerable environment. Her here, of circumstances totality ering retaliatory examples evidence shows escorting her relating to moth- episode co-workers, by such as acts withhold subsequent together plane er onto job, required on the on ing help trampling thereto, relating denial events muddy publicly her coat with feet and closely related request her transfer fabricating accusing her sexual harass continuing to violation. enough constitute also presented ment claims. She has evi conclude that the district Accordingly, we retaliatory by management, dence of acts determining in court erred otherwise. at her in of her co screaming
such as front VI. workers, allowing retaliate co-workers allowing her and M.C. to bid onto question of whether We turn now to the charge discharge Thus, Fielder’s of constructive her shift. has averred suffi by district properly was dismissed jury to find construc cient evidence for being untimely. The based court as court discharge. tive of Fielder’s constructive dis- dismissal key The issue before this court is theories. on alternative charge claim three timely resignation whether Fielder’s was It first the claim was determined purposes discharge. of constructive of limita- time-barred because the statute teaching in us Draper instructs went on began tions to run when Fielder resignation the date of triggers 20, 1994, rather April medical leave on in period limitations a constructive dis than when she failed to return work at 1110. believe that charge case. Id. We May of her medical leave on after end pe events within the limitations occurring 10, claim 1995. To the extent her resignation May on prior riod discrimination, on it deter- based sexual accompanying her mother onto the discharge mined the constructive 1995— September aircraft on 1994 and the the sexual claim was time-barred because in fall transfer of co-worker Johnson February discrimination M.C. ended that her 1994—are sufficient 1993. To the extent the claim was based conclude retaliation, untimely. con- resignation it determined the claim We elude, therefore, the court erred versed and the case is remanded for fur- concluding estopped that she was proceedings ther opin- consistent with this this claim. asserting ion.
„ REVERSED AND REMANDED question A arises as to whether FLETCHER, W. Circuit Judge, Fielder’s discharge constructive claim is concurring: barred because it part was not of her Judge opinion Aldisert’s describes two complaint, pre-dated which her date of “overt acts” during the period, limitations resignation. She filed her Bureau of La either of which is sufficient to render bor and Industries on May filing timely. Fielder’s separately write resigned on May 1995. The reasons, give in addition to those ad- general rule is that incidents of discrimi Judge duced in Aldisert’s opinion, sup- nation that are not included in an EEOC port the conclusion that Fielder’s com- agency charge state may not be consid plaint timely filed. ered aby federal court unless “the new I believe that nothing needs to be added claims are reasonably like or related to to Judge Aldisert’s accurate and detailed the allegations contained the EEOC account of Fielder’s attempt accompany Green, charge.” F.2d 1475-1476. her mother onto the airplane at the Med- To determine reasonable relation “the ford Airport, and of the subsequent repri- court inquires original whether the EEOC mand by Bibler. will say only that investigation encompassed would have Fielder and tell dramatically differ- charges.” additional Id. “Finally, the re ent versions of episode. If Fielder’s medial purpose of Title VII pauci and the believed, account is ty as it must on a legal training among those whom it is motion summary judgment, designed protect Bibler’s ac- require charges filed *16 tions before the constituted EEOC to be an overt act within the construed liberal ly.” Id. period. limitations However, I it may believe be useful to
Fielder’s constructive discharge Judge add to Aldisert’s of account United’s claim reasonably is related to the discrimi grant failure request to Fielder’s transfer nation and retaliation claims that were in granting while request cluded a transfer- in the of an complaint, because all three claims are upon seniority. based less the same actions dissent Therefore, and conduct. maintains that is administra there no evidence that investigation tive request should have included the Fielder’s transfer remained active discharge constructive and Fielder has not during the 300-day period, limitations and her right forfeited to pursue it in federal majority “making that is simply up court. facts.” In her deposition, Fielder testified
‡
‡
that sometime before August 1993 she had
$
put
request
in a
to transfer to Seattle or
We have considered all contentions
Portland, and
is
there
no evidence in the
by
parties
raised
and conclude that no
record that she ever withdrew that re-
further
necessary.
discussion is
We hold
quest.
I
obligation
believe
our
to
claims of
Fielder’s
sex discrimination
draw all
reasonable inferences
favor to
and retaliation are not time-barred and
nonmoving
party compels us to con-
she is
estopped
not
asserting
clude,
purposes
summary
for
of
judgment,
claim for constructive discharge.
con-We
request
clude
the transfer
pending
also that
is a
was still
genuine
there
issue
material
during
fact
period.
whether the events
limitations
See
occurring
Hunt
Cromartie,
541, 552,
within the 300-day period come
under the
U.S.
119 S.Ct.
(1999) (“[I]n
ambit
the continuing
violation period.
nonmoving reinforcing statutory are to short limitations lieved, justifiable inferences all favor.”) (internal party’s] Anger at how Fielder’s fellow em- period. in [that be drawn omitted). citation treated her and at her quotation ployees allegedly helping for her mother being criticized Unit- further maintains that The dissent airplane justify disregard- onto the cannot request transfer made grant of a ed’s practical consequence the law. The ing Johnson, a with less se- co-worker Cecilia keep alive inci- majority opinion is to a claim of retalia- niority, support cannot perma- claimed sexual harassment dents of Johnson, too, complained tion because nently, with statute of limitations at all. no dissent, John- According about M.C. M.C., her sub- complaints about son’s of limitations is “within The statute transfer, Fielder’s claim show that sequent days three after the un- hundred disagree, groundless. retaliation is occurred.”1 employment practice lawful showing in the record there is evidence 9,May filed 1995. The date Johnson were not similar- that Fielder and July filing Fielder’s date is days before According depo- Johnson’s ly situated. requires statute 1994. The thus us to Bibler’s office testimony, she went sition (or employer see what sexual harassment tell of Fielder’s wake making a sexual harass- discrimination incident, an was not isolated him “that this charge) period. ment occurred seriously, very that it should be taken did, None because Fielder was even just not be brushed off.” it should April there. Her of work was day last so because she “wanted Johnson did day period the 300 even start- before not think that make that Ted did sure single day during did ed. She not work making up.” Johnson’s just Joanne day period, the 300 so there was even “com- deposition makes clear opportunity for sexual harassment or Fielder’s support intended plaints” were to take let employer place, case, if own. When asked press not to alone evidence that did. before or after complained about M.C. Judge emotionally writes an Aldisert M.C., re- Johnson Fielder’s incident with summáry allegations stirring of Fielder’s say anything before plied, “Why would about M.C.’s unwanted sexual invitations “My the incident?” Johnson continued: February between mid-1992 that, talking to after impression was M.C., Everything with all the unwelcome Joanne, thing put Ted whole wanted *17 conduct, stopped February sexual dead in that had just everything let to rest years In over February 1993. two done with it gone just be on before—to charges filed her before Fielder however, Fielder, again.” and start over case, complained her supervisor, Fielder did not want to “be done with it.” Accord- Bibler, police, Mr. the about M.C. Johnson, “pushed” ing to Fielder the issue. Bibler, immediately supervisor, Her Mr. evidence, jury a reasonable Based on this firmly disciplined changed M.C. conclude that United transferred could assignment, so that he would not do M.C.’s Fielder because Johnson rather than anything again sepa- like this and would be and vo- complained vigorously had Fielder rated from Fielder. Bibler counseled M.C. ciferously harassment while about sexual placed had on behavior and him on appropriate Johnson not. “final policy notice.” Airlines’ KLEINFELD, Judge, Circuit warning, verbal written then warning, then dissenting: notice, termination, final then but Bibler skipped steps pro- over first two elimi- effectively The majority opinion that M.C. would be gressive discipline sex so nates the statute of on dis- limitations warning if he sexual- It this in the face fired without further crimination cases. does 2000e-5(e)(l). § 1. U.S.C. rather,
ly
again.
[upon]
any
Fielder
Fielder was
it
present
harassed
‘is
whether
”3
deposition
asked in her
whether there was violation exists.’
“It
not
should
be for-
Mr. Bibler
“anything that
should have
gotten
provisions
time-limitations
meeting
that he
done at
didn’t do?”
interests;
promote important
themselves
attorney’s
and answered “No.” The district
period
instituting
‘the
allowed for
suit inev-
prosecute
criminally,
office did not
as
itably
a
judgment concerning
reflects value
sought,
they
him sign
Fielder had
but
point
favor of
which
interests
prosecu-
in lieu
agreement”
“diversion
protecting
outweighed by
valid
are
claims
harassment,”
tion for “telephonic
under
prohibiting
the interests in
prosecution
”4
he
which
had to avoid contact with Fielder
of stale
rejected
ones.’
Ricks expressly
fine,
for
year, pay
and continue
$100
proposition
that the
employ-
unlawful
mental health counseling. Fielder admits
practice
ment
was a “continuing violation”
again
that M.C.
made an
never
unwelcome
period
so that
the limitations
would not
sexual overture or remark to her after
job
start until the
ended.5
discipline
Bibler’s
of M.C. She has many
Today’s majority strains to find some-
criticisms of M.C.’s and United’s subse-
thing
days
within the 300
preceding filing,
quent conduct, e.g., she once
saw M.C.
(1)
and comes
with two
up
events:
airport returning
a rental car when she
(2)
transfer;
granting
telling
her
there,
“growled”
and he once
Fielder
it
not a good
idea to
her,
though angry
he
saw
and some-
plane
board the
with her mother. Fielder
times she
take him
management
called
lost her
on summary judgment,
case
off
her shift when
both bid for the
12(b)(6) motion,
on a
so it
not enough
(they
same shift
always removed him at
good
imagined
that some
claim can be
request).
But
has absolutely
she
no
complaint.
of her
basis
She needs
allegations
again
that M.C.-ever
made
sufficient evidence so that a reasonable
sexual
remarks
overtures to
after
jury could find that
these occurrences
complained
about
in February
them
were sex
or company
discrimination
retali-
for bringing
ation
a sexual harassment
300-day statute
limitations has
claim earlier.6 She lacks it.
interpreted by
been
the Supreme Court
absolutely
no
has
evidence that
In
quite strictly.
College
Delaware State
request
United’s failure to
grant
Ricks,2
Supreme
Court held
(the majority
transfer
refers to “United’s
time ran from
discriminatory
when the
act
refusal
transfer Fielder” but the record
occurred,
tenure,
denial
not from the
no
during
days)
shows
refusal
the 300
job
later
complainant’s
date when the
end-
sex discrimination or
filing
ed. The
held
Court
that this is what the
sex
complaint.
discrimination
Fielder was
says
statute
means when
within the time
all,
single day,
not at work at
not for a
period “after
unlawful employ-
day
period.
three hundred
ment practice
“It
is simply
occurred.”
*18
during
United transferred another woman
insufficient
allege
for Ricks to
that his
days
complained
the 300
who had also
‘gives present
termination
effect to the
M.C.,
by
about sexual
past illegal
harassment
so even
perpetuates
act
therefore
transfer,
if
consequences
of
there had been a refusal
to
forbidden discrimina-
tion.’ The
not
lack
emphasis
upon
is
the ef- Fielder would
that the
evidence
refus-
decisions;
fects of
employment
earlier
al to transfer her was
for com-
Rides,
Inc.,
2.
449
College
v.
TJ.S. 6.See
477 U.S.
Liberty Lobby,
Delaware State
v.
Anderson
250,
498,
(1981).
242, 252,
101
66
S.Ct.
L.Ed.2d 431
106 S.Ct.
plaining about before had day period began, less she com- person that a hundred fact the “brute transfer,” though a the situation to sexual seniority plained received about something. It not. What visiting, does was that meant harassment trainer who that the transfer went is something requests I point, means that had transfer that “at every going to work who was woman to a no in” which “were active.” She submitted with no assur- gone was not who day, one any had that she evidence whatsoever return, had made and who of ance the three request pending during transfer complaint about harassment sexual friend, Indeed, the one days. her hundred whatsoever no evidence Fielder submitted complained of harassment who also sexual that United’s her accusation support transfer, testified by got M.C. and who was somehow to transfer failure talk that Fielder’s about deposition at her retaliatory act.7 discriminatory “short-lived,” did not was “she a transfer Medford,” said that leave she want any evidence Nor did Fielder submit my out “[t]hey going are not to force me the three hun- during United knew that Thus there is no evidence that to home.” even wanted period that she day dred Fielder wanted a transfer depo- in her She testified be transferred. you anylhing ever argues if he does Judge that the transfer of know Fletcher Johnson, friend, sup- again." over Fielder Fielder’s Johnson, argues Judge Fletcher also retaliation because "John- ports a claim for Fielder, issue,” "push[ did not so 'complaints’ harassment] ] unlike [of son's ... case, jury could conclude "a reasonable support Fielder’s intended than support United transferred Johnson rather Field- does not press own.” The record distinction, complained vigorously had if it would make er because Fielder even this claimed difference, vociferously harassment is about sexual Here John- which doubtful. says But Johnson testimony: while Johnson had not.” deposition son's complained actu- she about M.C. because "it Q you way ever touch Did [M.C.] ally being nothing like was done” and looked you made feel uncomfortable? being everything swept seemed like was "[i]t A Yes. rug.” "pushing the under the That is issue.” Q please? you describe that Would complained about M.C.’s di- She misconduct I several occasions when A There were herself, rected at and the misconduct toward desk, sitting and he would similarly regard, was stopped. In this she my up behind me to rub would come Fielder, experi- situated to also did who neck, down the move his hands then any M.C. after ence further harassment from my chest. front disciplined. complained and he was Nor complaint about her was this Johnson’s first Q Fielder, She, like had com- you to Ted Bibler? male co-workers. Did describe this Yes, plained previously to male co- Bibler about A I did. think Q “sabatoging” you female coworkers you told Ted workers Do remember heavy forcing Johnson, bags off the belt. them to lift Bibler about this? Fielder, No, multiple com- know it was like made A I don't have date. far, co- gone plaints it about the behavior her male pretty after this had and actu- Thus, being success nothing done. workers toward her. Johnson’s ally looked like , probative being getting highly the transfer everything It seemed like retaliatory reason for not rug. And I wanted to the absence of swept under Fielder, transferring no think and there is evidence sure that Ted did not make contrary. just making up. Joanne [Fielder] legitimate business reason for testimony com- This establishes Johnson Johnson, transferring plained get something but not Fielder. John- "done” about M.C.’s them, working got the because she was and com- son transfer harassment the two of *19 every period. day during the time plained specifically improper relevant about M.C.’s guarantee response to Fielder was on sick leave with no Bibler’s conduct toward herself. returning, was not clear that re- of ever and it complaint shows that United Johnson’s request pend- still garded personal Fielder’s old transfer was complaints as in nature. her ing. presenting the burden of that reaction Fielder bears [Bibler's] Johnson testified "His recently? specific evidence that this rea- anything you and substantial was: heHas done said, said, pretextual, recently. I son and has no such evidence. not And he want And
993 uncontradicted, days, plausible deposition evi- her that thought she it was not a dence that she did want transfer.8 possible that someone could overhear him facts, majority simply making up if they door, were right outside his closed making up, simply them to concoct rea- and that two employees were near his get son to around the statute of limita- door, closed but she not allege does even tions, that says when it “United’s refusal he raised his voice. This evidence days the during transfer Fielder” 300 not genuine does establish a issue fact was one of “two overt acts” within the 300 as Mr. spoke to whether Bibler to her days “trigger operation would the publicly; it establishes without contra- continuing It theory.” violation is ridicu- spoke diction that he privately. by lous to treat an employer retaliating as Nor is there evidence whatsoever refusing employee a transfer when the did was, that this conversation as majority not longer want transfer and was no it, a “reprimand” characterizes which by working, and the who got the “disciplined.” Fielder was Two people exactly transfer did thing same there, Bibler and Fielder. Here is supposed the “refusal” was to be “retalia- Bibler, what Mr. supervisor, testified tion” for. This is result-oriented decision to about what he said: making at its It is a frighten- worst. Q ’94, Some time September around ing harbinger employers making hiring do -you you recall situation where decisions. had requested that Joanne off come The other act” supposed “overt is what of plane with you your talk in majority “discipline” characterizes as office? “reprimanded Mr. Bibler in Fielder Yes, A I do recall that. public in for making complaints Q you you Could tell me how came to Again, majority M.C.” opinion know was even on the needs correction from the record. The premises? record shows that it was not “public,” not A Either two or three came “reprimand,” and not employer “retalia- my into office saying tion.” Fielder no that Joanne has evidence from which jury could decide that Fielder’s was—I don’t recall the employer spe- [Fielder] publicly reprimanded her in retaliation- for cific dates —but Joanne [Fielder] complaint against sexual harassment seeing trip. mother off on a her to wanted realize how frustrat- one, ing it is them. Number Though majority suggests they routinely air- go do supervisor Fielder’s her down in dressed planes. two, And number she hadn’t public, supervisor both Fielder and the been to work for a number of weeks. testified that he to her in spoke alone his just They were frustrated by that office with the shut: door Where a super- process. visor to an employee talks in his office shut, “public.” Q door it is not It Was is as one those individuals Stan private he Reynolds? as can make it. Fielder says See, Judge concurring argues contrary. opinion e.g., Fletcher's Matsushita Elec. Indus. 574, 588, requests that we must Corp., treat transfer Zenith Co. v. Radio 475 U.S. being (1986) period active (noting the limitations S.Ct. 89 538 be- L.Ed.2d obligation cause of our all draw reasonable that inference drawn must reasonable inferences); nonmoving party. light inferences in of the competing favor In re Citric (9th But Litig., such inference is not reasonable in Acid Cir. 1999); light testimony Sylvia Development Corp. of Johnson’s uncontradicted v. Calvert (4th 1995). Cty, that Fielder's interest in the transfer was F.3d Cir. Once duty feeling "they developed "short-lived.'' Our to draw all reason- are nonmoving going able my inferences in favor of the me to force out of home” her, party permit transferring only does not us to draw an inference reasonable infer undisputed request the face of evidence to the ence is that her transfer dead. *20 you what she airplane? Did she tell No.
A doing? been had they who were? recall Q youDo I be- Liz, one. And I to her mother talking A believe A Yes. She was Hat- said, was Anita other one seeing lieve the her mother what she is one, I a third if there is And ton. off. are the two Those can’t recall. more that other Q your Were concerns I remember. that Joanne people upset were or separate- together come Q they Did violating policy some [Fielder] was ly? you thought— There together.
A I think with A concern more the sen- My my in employees or three were two to sitivity trying get employ- just passing It was office at once. try together work and group ee to comment. another, op- one understand at you did do anything if Q And what I’m sure posed to violation. point? done probably simi- time, working at the A [Rossi] Joe forth, things, so but I was lar know, you I said— just process. concerned about said, I know it’s [Fielder] Joanne —I Q a policy assisting? Is there awkward, mo- but if she has a very say A I policy? A No. would two, like to really I’d to talk ment or certainly there is—there to came [Fielder] And Joanne her. policy say to it. it’s do To left, I mother my after her office it been done or that has been never said, know, I you I believe. And done, say. certainly I can’t But it’s [Field- Joanne recognize your rights routinely. it policy not a to do er], but, know, very sensi- you it is in the occurrence Bibler further described office, just be in the tive issue his affidavit: defensive, very got aware. And she basically end- conversation and the have a with Joanne I did conversation only a probably office, I it was ed. think my in door long minute or two she left closed, at regarding being her the air- upset. very office flight assist her mother on a port to when an em- Q practice being off work on medical leave. What is while leave, a rela- Airlines has on ployee of United While Joanne was medical may may disabled or to her tive who was allowed bid shift. Inasmuch prac- work, need that shift was assistance? What as she was not employee presence tice with that? one Her short. concern to airport caused other em- dis- A I know mother was didn’t her to to ployees in that she was able come know. abled. Is she? don’t assist mother onto airport Well, Q say, example. general, however, to be flight, claimed not able in the of any A I don’t know work. I discussed the need sensitivi- go on practice is not a office—it feelings ty regard to co-workers relatives, airplane and talk this matter with Joanne. She was say it’s never that I’m aware of. To assisting her mother reprimanded for happened, don’t know. flight. onto a Q assist relatives practice Is just assist? plane, onto the Bi- This that Mr. evidence establishes A I’m aware of. acknowledged Not that Fielder was that Ms. bler (“I “rights” recognize your Q admit within her And Joanne ever [Fielder] did aware” that just sitting “be rights”), but asked you that she had been very plane onto the was “a sensi- going talking there her mother *21 repri- flight tive issue in the office.” Far from check into a and board an her, he her to “the manding respect asked free sabotage, aircraft interfer- sensitivity regard need for in co-work- ence, comments, derogatory or other working ers were feelings,” harm. person
one short on shift while she was out staying on medical leave. She did Q All right. The Mr. comments Bibler sensitivity on agree “the need in you made to that day, on where regard feelings,” to co-workers which he you were at the time he spoke “rights.” conceded was within her you? testimony Fielder’s does not establish a A In his office. genuine of fact as issue to whether she disciplinary reprimand
received a Q this there anybody Was else in the of- deposition conversation. Here is testi- fice?
mony: A No. Q alleges you Your Q open Was door or closed? disciplined were crimi- filing the Closed, A I I’m believe. sure was. against nal action How were [M.C.]. Q your complaint Because alleges that you disciplined? you publicly reprimanded were A pulled I of airplane. was off I for assisting your harassed disabled my told that presence was onto mother the airline. airport causing upheaval among Well, A Stan and Ron and Anita Hat- coworkers, my and that I showed gone ton had to Ted. all They saw
poor judgment coming out to the gome in there to talk to Ted. The at all. Even I airport though never out, walls are thin. IWhen came approached once the ticket counter Dave, Ron I employees. to encounter fellow believe were stand- my I proceeded directly gate, ing within two or three feet of the my cleared access to the through aircraft door. You can hear once, gate with the agent, and then door. again, wearing my badge while at all Q So even though you were in an office times, flight cleared A with the at- door, you with a closed you feel were on tendant board. publicly reprimanded and harassed? Since I was told Mr. Bibler that Yes, A pulled I publicly because was my presence airport causing at the off airplane front of other upheaval, such an stepped I have not passengers, I whom knew. And in one foot in the County Medford Jackson mother, of my front who was very I
Airport.
now
Eugene,
travel
out of
upset by that
incident. That was
Portland,
out
Redding,
and out of
very embarrassing.
in front
And
I want
I
go anyplace.
whenever
flight
I
attendant
right
privilege
been denied the
gained access from. Yes.
flying
Airport by
out Medford
Q And Mr. Rossi is the one who came
Airlines.
you?
spoke
Q
you
“denied,”
say
When
based
A He came and told me that Ted want-
your
on
conversation with Mr. Bibler
ed
see me in his
That I
office.
resulting
day
from the
you
That I
airplane.
was to leave the
assisting your
mother?
causing
there was some
—that
A
That
correct. And also the hostile
my
trouble with
coworkers with me
environment
I
know still exists
being
airplane.
me,
United Airlines
which
Q
I
Mr. Rossi
all of
state-
know that would not
do not
made
those
be-—I
feel that
check baggage
airplane?
could
ments while he was on the
*22
spoken
privately
my
In front of moth-
dence that
was
correct.
A That’s
passengers.
offending
feelings,
er and the
about
other worker’s
her
acknowledging
rights.11
while
is
that Fielder refers to
Mr.
The
Rossi
allegedly repri-
who
supervisor
not the
Finally,
majority
point
the
can
to no
her;
was her former coworker
he
manded
private
all
evidence at
that
discussion
dating
living
and
with
whom she was
sensitivity
feelings
about
to others’
was
is the
of the incident. Bibler
time
for
company
retaliation
Fielder’s
reprimanded
she claims
supervisor whom
Instead,
complaint.
sexual harassment
public.
her in
rests on
majority
implausible specu-
sheer
ac-
between Fielder’s
they
The difference
unlikely
objected
lation: “It is
that
tone,
is
not
count and Bibler’s
substance.
only
escorting
to the act of
her mother” so
said
testimony
Her
about what Bibler
own
is an issue of material fact whether”
“[i]t
felt)
(as
he
was that
to what she
opposed
complained
re-
employees who
“were
causing
presence
upheaval”
“was
said her
activity.”
her
taliating
protected
for
no
judgment.”
and
There is
poor
“showed
no
Actually, there is
evidence whatsoev-
deny
genuine
of fact. She does not
issue
that
employees
er
who went Bibler’s
“rights” to do
acknowledged
he
her
that
“Liz,”
Hatton,”
complain,
office to
“Anita
testify
just
did. Nor does she
what she
third,
trying
a
possibly
were
to cause
he
a
what
said as
that he characterized
trouble for Fielder
she had ac-
he
All she claims
disciplinary reprimand.
harassment,
cused
of
nor
sexual
that
other workers
did was tell her
they
would it matter if
were. The record
showing
while
unhappy
up,
were
about
that
is uncontradicted
the other workers
they
a hand short and she was
were
upset
because Fielder was out on
leave,
a
onto
sick
to escort
mother
supposed
of
what
be some sort
plane. This evidence does not establish
leave,
person
medical
her shift
awas
short
genuine
material fact as to wheth-
issue of
holding
because she
onto her slot de-
employ-
er
suffered an adverse
leave,
spite
out on
being
medical
action, consisting
public
of a
disci-
ment
showing
resented her
up
days.9
reprimand, within the 300
plinary
taking advantage
an employee’s privi-
of
required
prima
Yet that is
make out a
lege
showing up
help
when she was not
of
under the
facie case
retaliation
statute.10
them the work. There
all
nothing
do
record establishes
absence
fact,
genuine
“unlikely”
evi-
about that. People
issue of
consistent
who work
for”);
City
Angeles,
City Pittsburgh,
v.
Los
147 F.3d
Robinson v.
120 F.3d
9.See Nunez
"
1286,
(3rd Cir.1997)
867,
(holding
(holding
supervisor's
that
'un-
875
"scold-
1301
that
threatening
reprimands’
ing
dis-
substantiated oral
and ‘unneces-
... and
to transfer or to
"
sary derogatory
employment
following
are not adverse
actions
comments'
a sex-
miss”
ual harassment
explaining
did not “rise to
threats and harsh
"[m]ere
insufficient”).
employment
level of the 'adverse
action' re-
v.
words are
See
Kerns
claim”);
Inc.,
1011,
quired
Harrington
v.
Capital Graphics,
178 F.3d
1017
359,
Harris,
(5th Cir.1997)
(8th Cir.1999)
F.3d
366
118
(holding
supervisor's
that a
(holding
employer's
an
that “an
criticism of
complainant
criticism and threat
more,”
employee, without
not an
adverse
"fifed,
any subsequent
would be
exercise of
for"
action).
employment
poor judgment
enough
ad-
not
for an
added));
employment
(emphasis
verse
action
See,
Schools,
e.g.,
County
Angeles,
v.
Los
Tarin
v. Denver
164 F.3d
Public
Sanchez
(9th Cir.1997);
(10th Cir.1998) (holding
123 F.3d
1264
a su-
533
Yartzoff
Thomas,
(9th
Cir.
pervisor’s
“ageist”
oral threats and
remarks
1987).
materially
rise
ad-
"did not
level of
West,
action”);
employment
Sweeneyv.
verse
(7th
Cir.1998) (holding
disagree
Judge
F.3d
11. must
Fletcher’s ob-
employee
an
em-
suffered
adverse
servation
“Fielder and
tell dra-
rep-
episode.”
ployment
unfairly
matically
action
"she was
different versions of
either
not en-
The difference is in what Fielder claims to
rimanded
conduct she
did
felt,
gage
responsible
in or
not in what was
should not have been
said.
resent it if
commonly
Supervisor
hard
feel that
District
had said he “intended
pulling
is not
fellow
share
to get rid of all the ‘old timers’ because
” 16
the load.
they would not ‘kiss my ass.’
If the
Nesbit,
plaintiffs in Nidds and
with signifi-
put any deposition
Fielder did not
testi-
intent,
cant evidence of discriminatory
can-
in the
mony
people
record from the
who
summary
survive
judgment,
then it
why they
went to 'Bibler about
went
Fielder,
follows a fortiori that
who offers
Bibler;
thus,
genuine
she established no
*23
less,
far
cannot either.
anyone’s retaliatory
issue
fact as to
motivation. Bibler said
his
in
affidavit
So where
majority get
does the
genu-
its
that
though
even
Fielder was on medical
ine issue of fact?
imagined
From
facts
leave, she was allowed to hold
onto
law,
combined with two
errors
with
shift, so “that shift was one employee
likely pernicious consequences for the law
short.” He said
affidavit
his
and for employers and workers.
ma-
The
employees’
concern was “that she
(1)
jority supposes that
some coworkers
airport
was able to
to
come
to assist
thought Fielder was cruel and unfair in
her mother
a flight,”
onto
while at the
(2)
M.C.;
what she did to
some coworkers
time
same
she “claimed not to be
to
able
expressed
feelings
spiteful
their
interac-
Thus,
work.”
there is not
a genuine
even
(all long
tions
before the
day period)
issue of fact about whether the other em-
with Fielder after
management
she caused
ployees’ complaints
supervisor
to Fielder’s
give
(genuine)
M.C. a
disciplinary repri-
attempt
were an
retaliate
her sexual
mand, a “final warning,” and
him
removed
complaint.
harassment
(3)
shift;
jury
Fielder’s
a
could con-
Our cases make it clear that what Field-
clude that the
who went
Bi-
enough
er offers is not
to raise a material
bler when Fielder
the plane
boarded
issue of fact.
an employer
When
of-
has
mother,
Hatton,”
“Liz” and “Anita
did
legitimate
fered
business
its
reasons for
so to retaliate for
having
Fielder’s
made a
actions, to avoid summary judgment,
(4)
sexual
complaint;
harassment
jury
nonmoving party
present
must
evidence
could conclude that
supposed pub-
Bibler’s
“
pretext
‘specific’
that is
and ‘substantial’
lic reprimand was
for making
retaliation
in order to
create
triable issue with
sexual harassment complaint.
respect to
the employer
whether
intended
The
says
retaliation statute
that it
anis
to discriminate on the
sex.”12
basis of
Our
unlawful employment practice for “an em-
law
case
shows that “substantial” means
ployer”
against
to discriminate
an employ-
Inc.,13
quite a bit.
In
PepsiCo,
Nesbit v.
ee
employee
because the
has made a dis-
we held that the plaintiff
present-
had not
crimination
charge.
absolutely
There
no
ed sufficient
summary
evidence to avoid
evidence,
whatsoever,
none
that Bibler’s
judgment
age
on his
discrimination claim
talking
motivation in
to Fielder about her
though
even
a supervisor had commented
showing up
put
her mother on
plane
necessarily
“we don’t
grey
like
hair”
was to discriminate against Fielder
and the company president had said that
filing sexual
charges against
harassment
unpromotable
“we don’t want
fifty-year
M.C. He had taken
Likewise,
unsparing
around.”14
action
olds
v.
Nidds
time,
against M.C. at the
and it
Corp.,15
Schindler Elevator
we
worked.
held that
plaintiff
present
had failed to
Another
who also
sufficient
made a sexual
summary judgment
evidence
avoid
harassment
ob-
claim despite
showing
that the
tained the
transfer
Fielder now claims
Widnall,
(9th
12.
v.
Blue
162 F.3d
Id. at 705.
14.
1998).
Cir.
15. Nidds v..
Corp.,
Schindler Elevator
(9th Cir.1996).
Inc.,
(9th
PepsiCo,
13.
Nesbit
were the
Nidds
it
majority
Draper,
relies on
but
has
The
way.
majority
gone
have
the other
The
In
bearing
Draper,
no
this
we
on
case.
theory
compounds
legal
error with
that
sue for a con-
plaintiff
held
could
not
maybe
Fielder’s coworkers would
she
tinuing
present-
violation because
had
their remain-
spoken
have
to Bibler but for
harassing
ed
sufficient evidence that
It is
ing hostility to her.
the coworkers
until the date of dis-
conduct continued
jury
could find
majority
whom the
thinks
which fell within the limitations
charge,
retaliating.
were
period.21 Here the harassment did not
provide
remedy
The
for a
law does not
continue
the limitation
it
period;
into
company
nega-
for coworkers’
limitations
long
day
before the 300
stopped
tive
It does where the co-
sentiments.
started,
did
work at
period
and Fielder
retaliate, management knows
workers
period.
any point during
limitations
it,
management
nothing.
about
does
majority
Draper
The
relies
and produced
Had Fielder claimed
evi-
discharge. Again,
find a constructive
it
that,
day
within the 300
dence to show
bearing
Draper,
no
on this case.
In
has
period,
things
coworkers had done such
manage-
complained
twice to
plaintiff
assistance
providing ordinary
mutual
harass-
supervisor’s
ment about her
sexual
loads,
she
heavy
complained
with
ment,
but
did not
so she felt forced
stop,
management,
management
had
on,
we
sue for
quit;
then
held
she could
go
allowed the retaliation to
she
discharge
go
jury.
would
constructive
where the construc-
case
could
Inc.,
A
147 F.3d
Slip Opinion
17.
at 986.
19.
Draper
v. Coeur Rochester
Cir.1998).
(9th
1104
See,
Widnall,
18.
F.3d
162
e.g., Blue v.
(9th
Cir.1998); Bradley
Harcourt,
546
Brace
at
20. A Plaintiff's Brief
23.
Cir.1996);
(9th
Co.,
F.3d
270
&
104
Wal-
(9th
Co.,
26
890
Simplot
lis v.
F.3d
J.R.
Cir.1994).
at
21.Draper,
discharge
day
eight
10, 1995,
occurred in
tive
months before. On May
period.
limitations
Fielder established no
subject
she was not
condi-
to “intolerable
genuine issue of fact on her constructive
tions” at
workplace.
her
She was not sub-
discharge
complaint,
because M.C.’s ject to
workplace,
conditions
job
harassment
that she said made her
Fielder,
because she
not even there.
had
long
intolerable
before the
stopped
plaintiff
unlike the
in Draper, could not
had
day period. So
the coworkers’ have
quit
decided
she
can’t
“she
alleged retaliatory acts that
claimed
she
take it anymore.” She had not
“tak-
been
intolerable,
workplace
made the
ing it”
over a year.
cannot
she did not work
there
all
right
reinstate her
to sue for constructive
day period.
resign
did not
She
while
discharge by
resignation
official
more
allegedly
working
retaliating
with
co-
than
year
after
she
left work be-
resigned
workers. She
when her workers’
cause of the
working
intolerable
disability
compensation
pay and her medi-
conditions.
decision
work
to leave
out,
cal pay ran
hold
continued to
must
working
coincide
the intolerable
slot on
shift until then.
nothing
Yet
conditions.
period
during that
could
the re-
establish
matter,
As a practical
a sexual harass-
quirements
discharge,
for constructive
be-
ment complaint
generate
likely
some
subject
cause she was not at work or
feeling
ill
from the coworker
of it
accused
any working conditions that
so
intol-
others who think the
was ill
quit.
erable that
was forced to
*25
founded. The short statute of limitations
Our decisions on
discharge
constructive
Congress imposed advances
important
the
emphasize that the decision to
work
leave
purpose
peace.
of labor
long
So
as a
must occur while
working
the intolerable
sexual harassment complaint
pending,
is
conditions exist.
In
v. Agco
Montero
in
workplace
the individuals
likely
the
are
Corp., 22we held that an employee could
work,
talking
to be
avoiding
about it
bring
claim for constructive dis
they
coworkers whom
think are “on the
charge when she had left work four
side,” stirring
other
their side
with
up
months after
harassing
the
behavior had
intense,
calls,
long,
night-time phone
wor-
Likewise,
ceased.
in Steiner v. Showboat
Co., 23
rying
the litigation,
building
about
Operating
employee
we
held
files to advance their positions. Promotion
bring
could not
a claim for constructive
peace
of labor
much
discharge
employer
fired
motivates
of National
had
alleged harasser two and
Labor
jurisprudence.25
one-half months
Relations Act
prior
resignation.
to her
order to
getting
“[I]n
Likewise
discrimination cases done
constitute constructive discharge, harass
promotes
with
peace. Effectively
labor
ment must be
‘at
intolerable
the time
limitations,
repealing
statute of
as the
” 24
the employee’s resignation.’
majority
in
factually
legally
does
decision,
strained
will cause cases to fester
10,
formally resigned
May
generate
friction
the workplace
in
1995, after she had
away
been
from the
years,
claim is never barred.
alleged hostile work
environment
over
Any
contact between the
and the
year.
20,
Her
day
April
last
work
1994,
workplace,
quit working
and her last
even after she has
physical presence at the
there,
airport was when
plane
genuine
she boarded the
establishes a
fact
issue of
mother,
with her
previous
for a
claim
September,
on the basis that the
856,
Industries,
(quoting Brady
192 F.3d
Agco Corp.,
22.
861
Montero v.
v. Elixir
242
24.
Id.
324, 328,
(9th
1999).
(Ct.
Cal.Rptr.
Cal.App.3d
Cir.
196
1299
App.1987) (emphasis
original)).
Co.,
v.
Operating
Steiner
Showboat
Works,
NLRB,
517
25. See Auciello Iron
Inc.
v.
(9th
1994).
Cir.
U.S.
116 S.Ct.
1001-1003 employers temps to hire practical teaches out.
or contract the work facts, law,
By inventing inventing
we have done considerable harm. dis-
sent.