Case Information
*3 BENNETT, District Judge:
Plaintiff Victoria Zetwick, a county correctional officer, alleges that defendant Edward G. Prieto, the county sheriff, created a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ., and the California Fair Employment and Housing Act (FEHA), C AL . G OV ’ T C ODE § 12900 et seq ., by, among other things, greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12-year period. The defendants, Prieto and the County of Yolo, argue that such conduct was not objectively severe or pervasive enough to establish a hostile work environment, but merely innocuous, socially acceptable conduct. The district court granted the defendants’ motion for summary judgment, and Zetwick appeals. We reverse and remand.
I. INTRODUCTION A. Factual Background Zetwick began her employment with the Yolo County Sheriff’s Department in 1988 as a correctional officer. She was promoted to sergeant in 2002. In 1999, Edward G. Prieto was elected as the county sheriff. He was in charge of a sheriff’s office with approximately 250 employees, including the correctional officers. The defendants acknowledge that, after his election, Prieto introduced himself to the corrections staff and hugged all the female officers present, including Zetwick. Zetwick contends that, thereafter, from 1999 to 2012, Prieto subjected her to numerous unwelcome hugs and at least one unwelcome kiss that, taken as a whole, created a sexually hostile work environment.
Zetwick estimates that, from about 1999 to 2002, Prieto hugged her at least two dozen times and that, between 2003 and 2011, Prieto hugged her at least a hundred times. The defendants dispute the number and frequency of the hugs. They point out that, during 2000, Zetwick worked the night shift and rarely, if ever, encountered Prieto, whose office was *4 not in the jail; during 2001, Zetwick worked in the courthouse holding facility and saw Prieto only occasionally; and, in 2002, after Zetwick was promoted and returned to the night shift, Prieto visited the jail perhaps once and hugged her. The defendants contend that most of the incidents in which Prieto hugged Zetwick were at parties involving sheriff’s office employees, awards banquets, GED graduations for prisoners, and some training sessions or meetings, but no incidents when Prieto and Zetwick were alone.
In one particular incident, in May 2003, at an awards ceremony, Prieto kissed Zetwick, ostensibly to congratulate Zetwick on her recent marriage to a sheriff’s deputy. The kiss landed on or, because Zetwick turned her head, partially on the lips. Zetwick states that she expressed her shock at this incident to her husband, co-workers, and supervising lieutenants, but not to Prieto. Her supervising lieutenants did not forward her complaints for investigation or resolution. Zetwick contends that, over the years, her co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips. She contends that, on another occasion, in 2010, when she was working in the booking area with another female sergeant named Malugani, Prieto approached Zetwick, reached out to hug her, then stopped himself, and told her that people had complained, so he would not give her a hug. He then promptly hugged both Zetwick and Malugani anyway. Zetwick avers that the last hug that Prieto gave her was in December 2011. The defendants point out that Prieto first became aware of Zetwick’s dislike of his hugs when she filed her administrative claim in early 2012.
Zetwick also contends that, from 1999 to 2013, she saw Prieto hug and kiss several dozen other female employees, but did not see him hug male employees. Rather, she observed that Prieto gave male employees handshakes. She also details an incident in which Prieto repeatedly asked Malugani how much Mulagani weighed, until Malugani answered. Zetwick contends that, during this incident, Prieto *5 6 Z ETWICK V . C OUNTY OF Y OLO stared at Malugani’s body in a sexually suggestive manner and that Zetwick believed that Malugani was embarrassed and uncomfortable. The defendants counter that Malugani stated in a declaration that she was embarrassed, because her weight loss was from a health problem, but that she was not offended by Prieto’s questions or hugs. The defendants also contend that even Zetwick described Prieto’s hugs as the kind that one might give a relative or friend, lasting only a couple of seconds, and not involving sexual comments or other touching. Zetwick contends that the hugs were, nevertheless, chest to breasts. The defendants contend that, even if Zetwick did not see it, Prieto also hugged male employees on occasion. They add that Zetwick admits that she also hugged male co-workers and occasionally joined in banter about Prieto’s hugs.
Zetwick contends that her workplace changed, and that she found it difficult to concentrate, because of Prieto’s conduct, in that she was constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones. She testified in a deposition that she sometimes cried at work, in the locker room, because of stress from Prieto’s conduct, that she lost sleep, and that she had to take sleep aids because of her anxiety.
B. Procedural Background
After exhausting administrative remedies, Zetwick filed suit on October 3, 2012, against the County of Yolo, Prieto, and Does 1 through 50. She asserted claims of sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , against the County and Does 1 through 50; sexual harassment in violation of the California Fair Employment and Housing Act (FEHA), C AL . G OV ’ T C C ODE § 12900 et seq. , against all defendants; and failure to prevent sexual harassment, in violation of the FEHA, C AL . G OV ’ T ODE § 12940(k), against the County and Does 1 through 50. Zetwick sought compensatory, general, and special damages, punitive and exemplary damages, costs and attorney’s fees, and such other relief, including injunctive and/or declaratory relief, as the court might deem appropriate. The County and Prieto filed a joint Answer on November 16, *6 2012, denying Zetwick’s claims and asserting various affirmative defenses.
On October 3, 2013, the County and Prieto filed a Motion for Summary Judgment. Zetwick filed her Opposition on October 17, 2013, and the defendants filed their Reply on October 24, 2013. The district court heard oral arguments on the defendants’ Motion for Summary Judgment on October 31, 2013. Just over a year later, on November 6, 2014, the district court granted the defendants’ Motion for Summary Judgment, dismissed Zetwick’s claims, and directed the Clerk of Court to close the case. Zetwick v. Cty. of Yolo , 66 F. Supp. 3d 1274 (E.D. Cal. 2014). Judgment was entered accordingly on November 6, 2014. Zetwick timely filed her Notice Of Appeal on November 24, 2014. We have jurisdiction under 28 U.S.C. § 1291.
II. LEGAL ANALYSIS A. Summary Judgment Standards Our review of a summary judgment ruling is de novo.
Animal Legal Def. Fund v. FDA
,
As to that, the Supreme Court recently reiterated: [C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. See Brosseau v. Haugen , 543 U.S. 194, 195 n.2 (2004) (per curiam ); Saucier [v. Katz ,533 U.S. 194 ,] 201 [(2001)]; Hope [v. Pelzer ,536 U.S. 730 ,] 733 n.1 [(2002)]. This . . . is simply an application of the more general rule that a “judge’s function” at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson [v. Liberty Lobby, *7 Inc.] , 477 U.S. [242,] 249 [(1986)].
Tolan v. Cotton
,
Similarly, the district court must recognize that, where
evidence is genuinely disputed on a particular issue—such as
by conflicting testimony—that “issue is inappropriate for
resolution on summary judgment.”
Direct Techs., LLC v.
Elec. Arts, Inc
.,
In short, what is required to defeat summary judgment is
simply evidence “such that a reasonable juror drawing all
inferences in favor of the respondent could return a verdict in
the respondent’s favor.”
Reza v. Pearce
,
10
Z ETWICK V . C OUNTY OF Y OLO
The district court must not only properly consider the
record on summary judgment, but must consider that record
in light of the “governing law.”
Anderson
,
B. Zetwick’s Sexually Hostile Work Environment Claim
The “governing law,”
see Anderson
, 477 U.S. at 248,
requires Zetwick to generate genuine issues of material fact
that Prieto’s conduct “was sufficiently severe or pervasive to
alter the conditions of [Zetwick’s] employment and create an
[objectively] abusive working environment.”
Craig v. M &
O Agencies, Inc.
, 496 F.3d 1047, 1055 (9th Cir. 2007)
(internal quotation marks omitted);
see id.
(identifying the
elements of a prima facie case of a sex-based hostile work
environment (internal quotation marks omitted));
accord Geo
Grp., Inc.
,
1. Application of incorrect legal standards
The first incorrect legal standard the district court applied
involved extraction of a sort of black letter rule, from just a
few cases, that courts do not consider hugs and kisses on the
cheek to be outside the realm of common workplace
behavior.
Zetwick
,
12
unwelcome hugging occurred; they are factually distinguishable.
This is particularly true of the decision in
Joiner
, which
states that the plaintiff complained “that he was subjected to
unwanted propositions and hugs and kisses from female
coworkers,” but does not indicate the frequency or period of
time over which such conduct occurred.
[2] Indeed, in Lefevre , the court confusingly states that the plaintiff alleged that the harasser “forced her to shake hands with him each time they met and would frequently hug her at business meetings where [the plaintiff] was the only women [sic] in attendance,” but then dismisses the plaintiff’s complaints as inadequate to create an objectively hostile work environment, because “[f]requent handshakes and occasional hugs at business meetings do not amount to pervasive harassment.” 1994 WL 514020, at *3 (emphasis added). The decision in Graves gives no indication of the frequency of the unwelcome hugging at issue. See 2010 WL 785850, at *3 (referring to “being leaned into, touched or hugged,” but without indicating the frequency or period of time over which such conduct occurred); id. at *11 (again referring to “unwanted leaning, touching, or hugging,” without indicating the frequency or period of time over which such conduct occurred).
The district court also applied an incorrect legal standard
when it “f[ound] that Defendant Prieto’s conduct in this case
was not severe
and
pervasive.”
Zetwick
,
We conclude that the application of these incorrect legal
standards may have influenced the district court’s decision to
grant summary judgment.
Harris
,
2. Improper analysis of the record
Turning to the district court’s analysis of the record, on de
*11
novo review,
Animal Legal Def. Fund
,
More specifically, while it may appear that Prieto’s hugs
were “common” in the workplace, and that some other cross-
gender hugging occurred, neither of
those
things
demonstrates beyond dispute that Prieto’s hugging was within
the scope of “ordinary workplace socializing.” A reasonable
juror could find, for example, from the frequency of the hugs,
that Prieto’s conduct was out of proportion to “ordinary
workplace socializing” and had, instead, become abusive.
See Geo Grp., Inc.
,
Z ETWICK V . C OUNTY OF Y OLO
15
Instead of giving proper consideration to the cumulative
effect of the conduct at issue, the district court attempted to
apply “a mathematically precise test” to determine whether or
not Zetwick had generated genuine issues of material fact that
the environment created by Prieto’s hugging was sufficiently
hostile.
See Harris
,
The district court erred in concluding as a matter of law
that, “[b]ased on the totality of the circumstances[,]
Defendant Prieto’s conduct did not create a severe or
pervasive work environment with respect to Plaintiff.”
Id.
at
1285–86. We conclude that the district court had
not
properly considered the totality of the circumstances,
however. For example, the district court failed to consider
whether a reasonable juror would find that hugs, in the kind,
number, frequency, and persistence described by Zetwick,
create a hostile environment. Zetwick relies, in part, on
Alvarado v. Federal Express Corp.
,
The district court also completely overlooked legal
recognition of the potentially greater impact of harassment
from a supervisor and, indeed, the highest ranking officer in
the department. The Supreme Court has recognized that “acts
of supervisors have greater power to alter the environment
than acts of coemployees generally.”
Faragher
,
The district court also overlooked the import of its
observation that Zetwick had stated in a deposition that it was
difficult for her to go to work and that she was always
stressed, suffered from anxiety, and took a sleep aid, which
the district court conceded “[c]ertainly [would] interfere with
an individual’s job.”
Zetwick
,
It was also improper for the district court to disregard
Zetwick’s evidence that Prieto hugged and kissed other
women. Zetwick argues that such evidence helps to generate
genuine issues of material fact that the environment was
objectively hostile. We have long recognized that “[t]he
*14
sexual harassment of others, if shown to have occurred, is
relevant and probative of [a defendant’s] general attitude of
disrespect toward his female employees, and his sexual
objectification of them.”
Heyne v. Caruso
, 69 F.3d 1475,
1479–81 (9th Cir. 1995);
see also Dominguez-Curry v.
Nevada Transp. Dep’t
,
As to one specific incident of Prieto’s conduct towards other women, the district court observed that Zetwick’s description of the incidents involving Malugani “do[] not survive factual scrutiny in discovery,” in light of Malugani’s declaration. Zetwick , 66 F. Supp. 3d at 1283. It was improper for the district court to determine that Zetwick’s testimony that Malugani was embarrassed by Prieto’s 18
questions and hugs, based on her firsthand observation of the incident, was necessarily less credible than Malugani’s assertion, in her post hoc declaration, that she was embarrassed about her weight loss, but not by Prieto’s questions and hugs. A reasonable juror could conclude that Malugani had reasons not to complain about past treatment by her employer and to make a declaration, not subject to cross-examination, to support her employer’s position. This was the sort of conflict in the testimony that makes resolution of the issue at summary judgment inappropriate. Direct Techs., LLC , 836 F.3d at 1067. This conflict cannot be ignored, because it is not clear that one of the versions of the incident “is blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris , 550 U.S. 372, 380 (2007).
Finally, the defendants assert that the record shows that
Prieto also hugged men, but they do not suggest that Prieto
hugged men as often as he hugged women. Zetwick has
submitted evidence that she never saw Prieto hug men and
evidence that others agreed that Prieto hugged women more
frequently than men. Thus, she submitted evidence from
which a reasonable juror could conclude that, even if Prieto
also hugged men on occasion, there were “qualitative and
quantitative differences” in the hugging conduct toward the
two genders.
Geo Grp., Inc
.,
*15 [3] The defendants argue that the hugging to which Zetwick was subjected was “friendly” and “socially acceptable” and that Zetwick has “exaggerated the evidence.” These arguments rely on weighing of the evidence, which is not appropriate at the summary judgment stage of the
III. CONCLUSION
We reverse the grant of summary judgment in favor of the defendants and remand for a trial on the merits of Zetwick’s federal and state sexual harassment claims and her state claim of failing to prevent sexual harassment.
REVERSED and REMANDED.
proceedings,
see Tolan
,