The full case caption appears at the
end of this opinion. We consider the legal implications of a single, rather unsavory, episode of workplace sexual harassment. I Our story begins when Patricia Brooks, a telephone dispatcher for the City of San Mateo, California, and her coworker, seniordispatcher Steven Selvaggio, manned the city’ s Communications Center, taking 911 calls on the evening shift. At some pointduring the evening, Selvaggio approached Brooks as she was taking a call. He placed his hand on her stomach and commented onits softness and sexiness. Brooks told Selvaggio to stop touching her and then forcefully pushed him away. Perhaps taking this asencouragement, Selvaggio later positioned himself behind Brooks’ s chair, boxing her in against the communications console as shewas taking another 911 call. He forced his hand underneath her sweater and bra to fondle her bare breast. After terminating thecall, Brooks removed Selvaggio’ s hand again and told him that he had “crossed the line.” To this, Selvaggio responded “you don’ thave to worry about cheating [on your husband], I’ ll do everything.” Selvaggio then approached Brooks as if he would fondle herbreasts again. Fortunately, another dispatcher arrived at this time, and Selvaggio ceased his behavior. Soon thereafter Selvaggiotook a break and left the building. Brooks immediately reported the incident and, the following day, the city placed Selvaggio onadministrative leave pending an investigation. This, it turned out, was not the first time Selvaggio had made improper advances to co-workers. At least two other femaleemployees, including Pat P., another senior dispatcher, had been subjected to similar treatment from Selvaggio. However,Selvaggio’ s earlier victims had not reported his misconduct. Only after the city launched its investigation into Brooks’ s allegationsdid these other incidents come to light. While Selvaggio denied any misconduct, the investigation adopted Brooks’ s version of events and concluded that Selvaggio hadviolated the city’ s sexual harassment policy. Selvaggio resigned after the city initiated termination proceedings against him. Helater pled no contest to misdemeanor sexual assault charges and spent 120 days in jail. Despite the city’ s prompt remedial action, Brooks had trouble recovering from the incident. She took a leave of absenceimmediately afterward and began seeing a psychologist. She returned to work six months later. According to Brooks, her workenvironment had changed dramatically: The male employees ostracized her and her supervisors mistreated her. Brooks allegesthat she had trouble getting her desired work shift and preferred vacation dates, while other employees with less seniority got theirpreferences. She also alleges that the city delayed approval of her sick leave benefits, reprimanded her for conduct it overlookedin other employees
[FOOTNOTE 1] and gave her an unwarranted negative performance evaluation. Brooks signed the evaluationbut indicated that she would appeal it. She submitted a written appeal which expressed her view that the evaluation was intendedto retaliate against her for complaining about Selvaggio’ s behavior. While the city was considering her appeal, Brooks left workand never returned. Brooks obtained right to sue notices from the EEOC and the California Department of Fair Employment and Housing. She thensued the city, the Police Department and its chief, John Stangl, for sexual harassment and retaliatory discrimination in violation ofTitle VII of the Civil Rights Act, see 42 U.S.C. � 2000e et. seq., and the California Fair Employment and Housing Act (FEHA),see Cal. Gov. Code � 12940 et. seq.
[FOOTNOTE 2] All defendants moved for summary judgment. The district court held that Selvaggio’ s assault of Brooks in the Communications Center was not severe enough to give rise to ahostile work environment claim. As for Brooks’ s retaliation claims, the district court held that she failed to show that she hadsuffered any adverse employment consequences. Based on these rulings, the district court granted the summary judgment motion. On appeal, Brooks complains that the district court erred in ruling that the sexual assault was not sufficient to create a hostilework environment. She also argues that the city is liable under FEHA and Title VII for failing to take steps to prevent Selvaggio’ smisconduct of which it had actual or constructive notice. Finally, Brooks claims that the district court erred in finding no adversejob action to support her retaliation claim. While Brooks argues that she was subjected to sexual discrimination under Title VII aswell as FEHA, we need only assess her claim under federal law because Title VII and FEHA operate under the same guidingprinciples.
[FOOTNOTE 3] II Title VII prohibits employment discrimination based on any of its enumerated grounds: “‘ race, color, religion, sex, or nationalorigin.’ “Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. � 2000e-2(a)(1)). A species of sexdiscrimination, sexual harassment falls into two major categories: hostile work environment and quid pro quo. See EEOC, PolicyGuidance on Sexual Harassment, 8 BNA FEP Manual 405:6681 (Mar. 19, 1990) (hereinafter EEOC Policy Guide). A hostile workenvironment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the jobperformance of those harassed. A quid pro quo claim, as the name implies, occurs when a supervisor demands sexual favors inreturn for a job benefit. See generally, Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment Law (1992).Additionally, employees who are subject to adverse employment actions because they lodged complaints of sexual harassment canraise a retaliation claim under Title VII. See id. at 275. Brooks alleges she suffered hostile work environment harassment duringher encounter with Selvaggio, and retaliation by the city when she returned from the leave of absence precipitated by the incident. Hostile Work Environment In order to prevail on her hostile work environment claim, Brooks must show that her “workplace [was] permeated withdiscriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create anabusive working environment.” Harris, 510 U.S. at 21 (internal quotation marks and citations omitted). “The working environmentmust both subjectively and objectively be perceived as abusive.” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)(citing Harris, 510 U.S. at 21-22). We use a totality of the circumstances test to determine whether a plaintiff’ s allegations makeout a colorable claim of hostile work environment. See Harris, 510 U.S. at 23. Harris lists frequency, severity and level ofinterference with work performance among the factors particularly relevant to the inquiry. When assessing the objective portion ofa plaintiff’ s claim, we assume the perspective of the reasonable victim. See Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991)(“[A] female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which areasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusiveworking environment.” ) (footnotes and citation omitted). Brooks has alleged sufficient facts to support the subjective portion of her hostile work environment claim. She claims theincident pervaded her work environment to such a degree that she required psychological help and even then was unable tosuccessfully return to her job. The question remains whether her apprehension was objectively reasonable. Brooks points toSelvaggio’ s previous inappropriate advances toward female employees, in addition to her own encounter with him in theCommunications Center, to support her claim that the discriminatory intimidation was sufficiently severe or pervasive to create ahostile work environment. However, Brooks cannot rely on Selvaggio’ s misconduct with other female employees because she didnot know about it at the time of Selvaggio’ s attack. Harassment directed towards others of which an employee is unaware can,naturally, have no bearing on whether she reasonably considered her working environment abusive. This is especially true wherethe harassment comes from an individual who is terminated as soon as his misdeeds come to light. The single case Brooks cites to the contrary, Al-Dabbagh v. Greenpeace, 873 F. Supp. 1105, 1111 (N.D. Ill. 1994), holds onlythat a plaintiff can demonstrate the subjective element of a hostile work environment claim based on a single incident, eventhough she lacked knowledge of the offender’ s past misconduct. Al-Dabbagh did not rely on the perpetrator’ s past misconduct toestablish an objectively hostile working environment, except to the extent the employer failed to discipline him for incidents ofwhich it had knowledge.
[FOOTNOTE 4] Even were we to assume that the city’ s knowledge is relevant to establishing a hostilework environment, but see note 4 supra, Selvaggio’ s conduct was not known to the city until after the assault.
[FOOTNOTE 5]Brooks therefore can rely only on the single instance of sexual harassment directed toward her to support her hostile workenvironment claim. A single instance of sexual harassment might, nevertheless, be sufficient to establish a hostile work environment.
[FOOTNOTE 6] However, as we have previously held, “the required showing of severity or seriousness of the harassing conduct variesinversely with the pervasiveness or frequency of the conduct.” Ellison, 924 F.2d at 878 (citing King v. Board of Regents, 898F.2d 533, 537 (7th Cir.1990)). If a single incident can ever suffice to support a hostile work environment claim, the incident mustbe extremely severe. See EEOC Policy Guide, page 6 supra, at 405:6690-91 (“[A] single unusually severe incident ofharassment may be sufficient to constitute a Title VII violation; the more severe the harassment, the less need to show a repetitiveseries of incidents. This is particularly true when the harassment is physical.” ). In Al-Dabbagh, a single incident was held to besufficient where the assailant “slapped [plaintiff], tore off her shirt, beat her, hit her on the head with a radio, choked her with aphone cord and ultimately forced her to have sex with him.” Al-Dabbagh, 873 F. Supp. at 1108. The perpetrator held the victimcaptive overnight; when she finally managed to escape, she had to be hospitalized for her injuries. See id. If the incident here were as severe as that in Al-Dabbagh, we would have to grapple with the difficult question whether a singleincident can so permeate the workplace as to support a hostile work environment claim. Because the incident here was much lesssevere, we need not answer that question. Brooks did not allege that she sought or required hospitalization; indeed, she did notsuffer any physical injuries at all. The brief encounter between Brooks and Selvaggio was highly offensive, but nothing like theordeal suffered by the unfortunate young woman in Al-Dabbagh, who was held captive from evening until early the next morning.Utilizing the Harris factors of frequency, severity and intensity of interference with working conditions, we cannot say that areasonable woman in Brooks’ s position would consider the terms and conditions of her employment altered by Selvaggio’ sactions.
[FOOTNOTE 7] Brooks was harassed on a single occasion for a matter of minutes in a way that did not impair her abilityto do her job in the long-term, especially given that the city took prompt steps to remove Selvaggio from the workplace. Selvaggio’ s conduct is akin to that reported in cases where plaintiff was held not to have alleged harassment severe enough tosupport a hostile work environment claim. See, e.g., Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992)(per curiam) (“[I]solated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not soegregious as to render Candelore’ s work environment ‘ hostile.’ “) (quoting Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988)); Del Valle Fontanez v. Aponte, 660 F. Supp. 145, 146-47, 149 (D.P.R. 1987) (finding a single incident where defendant”pressed [plaintiff] against the door with his body” and plaintiff “felt defendant’ s erect sexual organ against her body” twice in afive minute period not severe or pervasive enough to create a hostile working environment); see also Saxton v. American Tel. &Telegraph Co., 10 F.3d 526, 528, 534 (7th Cir. 1993) (finding insufficient harassment to constitute a hostile work environment where plaintiff was rubbed and kissed on one occasion, and resisted an attempted groping on another). Ellison is not to the contrary. Ellison alleged a sustained campaign of harassing conduct directed at her. See Ellison, 924 F.2d at873-75 (recounting alleged harassment including love letters and date requests after plaintiff made it known that advances were unwelcome). Additionally, the course of conduct alleged by Ellison became more intense over time. Gray, the harasser, started by asking Ellison out a few times. He then sent her a brief love note followed by two letters. One of these comprised told by his supervisors to cease his behavior. See id. Because Gray had continually ratcheted up the intensity of his advances, a reasonable woman could fear that this pattern would continue for as long as they were working in the same office. Nor did Ellison’ s employer effectively address Gray’ s behavior. After a brief transfer, Gray was again assigned to work with Ellison. Ellison’ s working environment, characterized by a pattern of increasingly intense sexual advances from a co-worker and inadequate employer responses to her complaints, could cause a reasonable woman to believe that tolerating harassing behavior had become a term or condition of her employment. Brooks attempts to morph Selvaggio’ s single assault into a course of conduct by claiming that each of his improper touchingsconstituted a separate incident. While Selvaggio did touch her inappropriately on her stomach and breast, this happened within thecourse of a few minutes and was part of a single episode. Additionally, Selvaggio had no chance to become bolder because thecity removed him from the workplace once his actions were uncovered. No reasonable woman in Brooks’ s position wouldconsider that Selvaggio’ s misconduct had altered the terms or conditions of her employment. This in no way condones Selvaggio’ s actions. Quite the opposite: The conduct of which Brooks complains was highlyreprehensible. But, while Selvaggio clearly harassed Brooks as she tried to do her job, “not all workplace conduct that may bedescribed as harassment affects a term, condition, or privilege of employment within the meaning of Title VII.” Meritor Sav. Bankv. Vinson, 477 U.S. 57, 67 (1986) (internal quotation marks and citation omitted). The conduct here, while very offensive, does notrise to the level of harassment for which Title VII offers a remedy. See Faragher v. City of Boca Raton, 524 U.S. 775, 788(1998) (“[T]hese standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘ generalcivility code.’ “) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). We therefore affirm the districtcourt’ s grant of summary judgment with respect to Brooks’ s hostile work environment claims under Title VII andFEHA.
[FOOTNOTE 8] Retaliation Six months after Selvaggio assaulted her, Brooks returned to work. While Selvaggio had resigned under threat of termination,Brooks claims she returned to a very different workplace than the one she had left. Brooks initially noticed that her coworkersshunned her. Specifically, the males in the office refused to speak to her about anything other than work. She also saw pictures ofSelvaggio in the Dispatch Center photo album, which were removed on her demand. Additionally, the city took its full 90 days toprocess Brooks’ s worker’ s compensation claim. Later, she was required to attend group therapy sessions and discuss the incidentin front of coworkers. She had problems getting the shift she had when she took her leave of absence; was assigned to work withanother dispatcher, Mike C., who had been close to Selvaggio and allegedly became openly hostile to Brooks; and had difficultysecuring vacation time. According to Brooks, this treatment culminated in an unfavorable job evaluation. We recently set out the peculiar dynamics of a retaliation claim under Title VII in Payne v. Norwest Corp., 113 F.3d 1079 (9thCir. 1997). We noted that a plaintiff must show (1) involvement in a protected activity, (2) an adverse employment action and (3) acausal link between the two. See id. at 1080. Thereafter, the burden of production shifts to the employer to present legitimatereasons for the adverse employment action. Once the employer carries this burden, plaintiff must demonstrate a genuine issue ofmaterial fact as to whether the reason advanced by the employer was a pretext. See id. Only then does the case proceed beyondthe summary judgment stage. We examine FEHA claims under the same burden-shifting structure. See Flait v. North Am. WatchCorp., 3 Cal. App. 4th 467, 476 (Cal. Ct. App. 1992). Asserting one’ s civil rights, as Brooks did by complaining of Selvaggio’ s conduct, is a protected activity under Title VII andFEHA. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983); Blom v N.G.K. Spark Plugs (USA), Inc., 3Cal. App. 4th 382, 388 (Cal. Ct. App. 1992). Brooks’ s complaint about Selvaggio’ s harassment thus satisfies the first step of ourinquiry. The next question is whether Brooks alleged that she was subjected to an adverse employment action. In Strother v. Universityof S. Cal. Permanente Med. Group, 79 F.3d 859 (9th Cir. 1996), we noted that “[n]ot every employment decision amounts to anadverse employment action.” Id. at 869. We recognize the countervailing concerns in this area of the law. On the one hand, weworry that employers will be paralyzed into inaction once an employee has lodged a complaint under Title VII, making such acomplaint tantamount to a “get out of jail free” card for employees engaged in job misconduct. On the other hand, we areconcerned about the chilling effect on employee complaints resulting from an employer’ s retaliatory actions. In an effort to strikethe proper balance, courts have held that only non-trivial employment actions that would deter reasonable employees fromcomplaining about Title VII violations will constitute actionable retaliation.
[FOOTNOTE 9] Among those employment decisionsthat can constitute an adverse employment action are termination, dissemination of a negative employment reference, issuance ofan undeserved negative performance review and refusal to consider for promotion.
[FOOTNOTE 10] By contrast, we have heldthat declining to hold a job open for an employee, badmouthing an employee outside the job reference context and transferring anemployee where salary is unaffected do not constitute adverse employment actions.
[FOOTNOTE 11] With these principles inmind, we examine Brooks’ s allegations of retaliatory treatment by the city. Because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkerscannot constitute an adverse employment action. See Strother, 79 F.3d at 869 (“[M]ere ostracism in the workplace is not enoughto show an adverse employment decision.” ) (citing Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 615 (Cal. Ct.App. 1989)). Indeed, holding an employer liable because its employees refuse to associate with each other might well beunconstitutional: “The First Amendment prevents the government, except in the most compelling circumstances, from wielding itspower to interfere with its employees’ freedom to believe and associate.” DiRuzza v. County of Tehama, 206 F.3d 1304, 1308 (9thCir. 2000) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 76 (1990)). The group therapy sessions about which Brooks complains were workshops designed to better inform the city’ s workforce of itssexual harassment policy. Brooks does not claim she was singled out for the sessions, as all city employees were required toparticipate in them. Her complaint seems to boil down to the non-private character of the sessions. But the employer has aninterest in educating its employees about the adverse effects of misconduct that has occurred in the workplace. An employer’ slegitimate effort to deal with a traumatic workplace situation and educate its employees regarding sexual harassment cannot be thebasis for a retaliation claim under Title VII. Next, we turn to Brooks’ s claims that she was scheduled with a co-worker, Mike C., who was openly hostile to her. While thismight be an adverse employment action under certain circumstances, the undisputed facts demonstrate that it was not here.Brooks was never scheduled to work with Mike C. He was sometimes on the dispatch floor when she worked, but Brooks haspresented no evidence that the city put the two of them together knowing that Brooks would be uncomfortable. Nor did Brookspresent evidence that Mike C. was openly hostile, or hostile at all, toward her. She admits that he showed her no animus, nor didhe express skepticism to her about her account as to what happened with Selvaggio. While it appears that Mike C. had beenfriendly with Selvaggio, a victim of sexual harassment is not entitled to avoid contact with the harasser’ s friends. So long as theyshow no outward signs of hostility, they are entitled to continue doing their jobs even though it brings them in contact with thevictim. As for the fact that the city used all of its allotted 90 days to process the worker’ s compensation claim, Brooks offers noevidence that the city treated her differently from other employees seeking workers’ compensation benefits. Absent a showing ofdisparate treatment, the city’ s delay cannot be deemed retaliatory. Brooks also alleges that her performance review was downgraded from “satisfactory” to “needs improvement” because of hercomplaint about Selvaggio. We have previously held that an undeserved negative performance review can constitute an adverseemployment decision. See Yartzoff, 809 F.2d at 1376 (“Transfers of job duties and undeserved performance ratings, if proven,would constitute ‘ adverse employment decisions’ cognizable under [Title VII].” ) (citation omitted). Nevertheless, the evaluationhere was not an adverse employment action because it was subject to modification by the city. Brooks refused to accept thereview and appealed, but she abandoned her job while the appeal was pending. Because the evaluation could well have beenchanged on appeal, it was not sufficiently final to constitute an adverse employment action. Cf. Dobbs-Weinstein v. VanderbiltUniv., 185 F.3d 542, 546 (6th Cir. 1999) (“Dobbs-Weinstein succeeded in the grievance process, and Vanderbilt’ s final decisionwas to grant her tenure. She has not here suffered a final or lasting adverse employment action sufficient to create a prima faciecase of employment discrimination under Title VII. To rule otherwise would be to encourage litigation before the employer has anopportunity to correct through internal grievance procedures any wrong it may have committed.” ). Finally, Brooks claims that the city rescheduled her to an unfavorable shift and denied her vacation preference. However, like theevaluation, these actions were not final. When Brooks complained, the city accommodated her preferences by allowing her toswitch shifts and vacation dates with other employees.
[FOOTNOTE 12] The district court did not err in rejecting Brooks’ sretaliation claim. III Brooks alludes briefly in her moving papers to a constructive discharge theory citing Turner v. Anheuser-Busch, Inc., 7 Cal. 4th1238 (1994), and Watson v. Nationwide Ins., Co., 823 F.2d 360 (9th Cir. 1987). As explained in Turner, constructive dischargeoccurs when the working conditions deteriorate, as a result of discrimination, to the point that they become “sufficientlyextraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on thejob to earn a livelihood and to serve his or her employer.” Turner, 7 Cal. 4th at 1246; see also Watson, 823 F.2d at 361 (notingthat constructive discharge is found where a working environment is “so intolerable and discriminatory as to justify a reasonableemployee’ s decision [to leave]” ); EEOC Policy Guide, page 6 supra, at 405:6693 (“ [A]n employer is liable for constructivedischarge when it imposes intolerable working conditions [which] foreseeably would compel a reasonable employee to quit . . . .”). Brooks’ s complaints about her working conditions range from the trivial, such as issues with the pictures of Selvaggio in thedispatch center photo album, to the routine, such as scheduling conflicts. Taken collectively, these circumstances are notsufficiently extraordinary or egregious to amount to a constructive discharge. While Watson holds that the determination of whether working conditions are sufficiently egregious to support a constructivedischarge theory is usually a jury question, see Watson, 823 F.2d at 361, the district court did not err in deciding that Brooks’ sclaim fails as a matter of law. Taking the evidence in the light most favorable to Brooks, we cannot see how a reasonable trier offact could find that she was driven from the workplace. Where a plaintiff fails to demonstrate the severe and pervasiveharassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard ofconstructive discharge: conditions so intolerable that a reasonable person would leave the job. Cf. Thomas v. Douglas, 877 F.2d1428, 1434 (9th Cir. 1989) (constructive discharge requires some aggravating factors, such as a continuous pattern ofdiscriminatory treatment). AFFIRMED. :::FOOTNOTES:::
FN* The Honorable Harlington Wood, Jr., Senior Circuit Judge for the Seventh Circuit Court of Appeals, sitting by designation.
FN1 Brooks has not renewed her argument that the reprimand was retaliatory. See Smith v. Marsh, 194 F.3d 1045, 1052 (9thCir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.” ) (citing BrookfieldCommunications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1046 n.7 (9th Cir.1999)).
FN2 Brooks also named Selvaggio as a defendant in her FEHA complaint. Unlike Title VII, FEHA grants victims a cause ofaction for discrimination practiced by “any other person” in addition to that practiced solely by employers. Compare 42 U.S.C. �2000e-2(a) with Cal. Govt. Code � 12940(h). Nonetheless, the California Supreme Court has recently held that FEHA, like TitleVII, does not support a claim of harassment against a fellow employee. See Carrisales v. Department of Corrections, 21 Cal.4th 1132, 1140 (1999) (“Consistent with the FEHA’ s primary concern with unlawful employment practices, it does not alsoimpose personal liability for harassment on nonsupervisory coworkers.” ). Thus, Selvaggio cannot be held liable unless seniordispatchers are supervisors. We conclude they are not. See note 5 infra.
FN3 See Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 517 (Cal. Ct. App. 1998) (“Although the wording of title VIIdiffers in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes ofthe two acts are identical. In an area of emerging law, such as employment discrimination, it is appropriate to consider federalcases interpreting title VII.” ) (internal quotation marks and citations omitted); Okoli v. Lockheed Tech. Operations Co., 36 Cal.App. 4th 1607, 1614 n.3 (Cal. Ct. App. 1995) (“Since the antidiscrimination objectives and public policy purposes of [FEHA andTitle VII] are the same, we may rely on federal decisions to interpret analogous parts of the state statute.” ) (quoting Sandhu v.Lockheed Missiles & Space Co., 26 Cal. App. 4th 846, 851 (Cal. Ct. App. 1994)).
FN4 The objective portion of Al-Dabbagh’ s claim was based on the severity of the incident plus negligence on the part of theemployer, Greenpeace: Al-Dabbagh alleges that Greenpeace had turned a blind eye to Mitchell’ s sexual abuse of female employees in its Chicago officebefore she fell victim to it and consequently suffered grave bodily and psychological injury. As already stated, Greenpeace’ s singleresponse to Mitchell’ s earlier conduct — an oral reprimand for his drinking — fell far short of addressing the more serious problemsposed by his conduct. There is no question that those allegations, credited as they must be on the present motion, amply supportthe first (objective) element of a hostile-environment claim — the evaluation of Mitchell’ s conduct by a reasonable person. Al-Dabbagh, 873 F. Supp. at 1111. It is unclear why past misconduct of which the complainant is unaware can contribute to ahostile work environment simply because the employer is negligent in disciplining the employee who committed the misconduct.The lack of sufficient discipline for an earlier and unknown act of misconduct does not, after all, make the later misconduct moresevere or pervasive with respect to the harassed employee. Lack of adequate discipline might be a relevant consideration inassessing the employer’ s liability once a hostile work environment is shown to exist, but it seems to have no logical bearing onwhether there is a hostile work environment in the first place.”
FN5 Brooks claims that knowledge of Selvaggio’ s conduct can be imputed to the city because Pat P. knew of it (indeed was avictim) and was a supervisor by virtue of her position as a senior dispatcher. Brooks relies on Lamb v. Household Credit Servs.,956 F. Supp. 1511 (N.D. Cal. 1997), for the proposition that an employer is deemed to know of harassment of which a supervisoris aware. The city also relies on Lamb. It points to language indicating that supervisors, as that term is defined for Title VIIpurposes, are only those who have authority to “hire, fire, or discipline employees, or recommend such action.” Id. at 1517. It isundisputed that senior dispatchers lacked the authority to hire and fire dispatchers. While there is a vague reference to seniordispatchers assisting with disciplinary measures, this is not sufficient. See id. at 1517 (finding work flow supervisor with “limitedset of purely ministerial employee training and monitoring” functions not to be a supervisor for Title VII purposes). Lamb alsoprovides for imputation where an employee who has “general responsibility for passing employment-related complaints up thecorporate hierarchy” receives a complaint of harassment. See id. at 1516 (citing Llewellyn v. Celanese Corp., 693 F. Supp.369, 380 (W.D.N.C. 1988)). While senior dispatchers do have this responsibility, Lamb confines the responsibility of thesenon-management employees. See id. at 1517: [F]or purposes of Title VII, “management-level employees” encompass . . . non-management employees charged with substantialresponsibility for relaying employee complaints to management, particularly where management is located away from theworkplace. If a co-worker has knowledge of a harassee’ s complaint, but that co-worker lacks authority to counsel, investigate,suspend, or fire the accused harasser, or to change the conditions of the harassee’ s employment, the co-worker’ s inaction doesnot spark employer liability unless that co-worker has an official or strong de facto duty to act as a conduit to management forcomplaints about work conditions. Because Pat P., as a Senior Dispatcher, lacked power to change the conditions of employment, did not serve as a conduit tooff-site managers and never actually received a formal complaint about Selvaggio, her knowledge of his conduct cannot beimputed to the city.
FN6 See Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 541 n.13 (1st Cir. 1995) (“We do not hold that a one-timeepisode is per se incapable of sustaining a hostile environment claim. The frequency of the alleged harassment is a significantfactor, but only one of many to be considered in determining whether the conduct was sufficiently severe or pervasive that areasonable person would find that it had rendered the environment hostile or abusive.” ) (internal quotation marks omitted).
FN7 But see EEOC Policy Guide, page 6 supra, at 405:6691 (“The Commission will presume that the unwelcome, intentionaltouching of a charging party’ s intimate body areas is sufficiently offensive to alter the conditions of her working environment andconstitute a violation of Title VII.” ) We are not convinced that such a presumption is consistent with the Supreme Court’ s totalityof the circumstances test approach in Harris. Nevertheless, even were we to adopt this presumption, the brief duration of theincident coupled with the city’ s effective remedial action would suffice to rebut it.
FN8 Brooks also argues that the city is liable for its failure to take remedial steps once it had knowledge, through Pat P., ofSelvaggio’ s prior offending conduct. She relies on Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995), to support her claim.But, as we have noted, senior dispatchers are not supervisors whose knowledge can be imputed to the city. See note 5 supra. Inany case, Fuller does not establish a cause of action that is separate from that for a hostile work environment or quid pro quoharassment. It simply defines the liability of employers. “[I]f a hostile work environment exists, an employer is only liable for failingto remedy harassment of which it knows or should know.” Id. at 1527 (quoting Ellison, 924 F.2d at 881). As there was noactionable sexual harassment, there is no liability to assign to the city.
FN9 See, e.g., Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996) (“Although we decline to view Nidds’transfer to the restoration department as an adverse employment action, his ultimate termination on July 28, 1992, certainly was.” )(footnote omitted); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (evidence that plaintiff “suffered a loss of statusand prestige with the reassignment of her staff” insufficient to state claim for adverse employment action under Title VII); Yatesv. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (no cognizable employment action where plaintiff was temporarily demoted and”continued to receive the same salary and benefits and was assured that she would receive the next available [promotion]” ).
FN10 See O’ Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) (termination); Hashimoto v.Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (negative reference); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)(negative performance reviews); Ruggles v. California Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986) (refusing toconsider for promotion).
FN11 See McAlindin v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (refusing to hold job open for employee);Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998) (badmouthing); Nidds, 113 F.3d at 919 (transfer wherecompensation unaffected).
FN12 Brooks also alleges that, after she complained about Selvaggio, certain police officers refused to provide her services thatwere routinely provided to other dispatchers. However, the police did not employ Brooks and cannot be held liable for retaliatingagainst her. See City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 718 n.33 (1978) (“Title VII . . .primarily govern[s] relations between employees and their employer, not between employees and third parties.” ).
Brooks v. City of San Mateo United States Court of Appeals for the Ninth Circuit Patricia A. Brooks, Plaintiff-Appellant, v. City of San Mateo, a municipal corporation; San Mateo Police Department; John Stangl, Chief of Police; Steven Selvaggio, Defendants-Appellees. No. 98-15818 Appeal from the United States District Court for the Northern District of California. William H. Orrick, Jr., District Judge, Presiding. D.C. No. CV-96-03753-WHO. Argued and Submitted: May 14, 1999 Filed: June 5, 2000 Before: Harlington WOOD, Jr.,
[FOOTNOTE *] Alex KOZINSKI and Pamela Ann RYMER, Circuit Judges. COUNSEL: John F. Prentice and Sheila A. Reid, Prentice & Scott, San Francisco, California, argued the cause for plaintiff-appellant. Nancy E. Pritikin, Littler, Mendelson, San Francisco, California, argued the cause for Defendants-Appellees, City of San Mateo,et. al. With her on the briefs were Ronald J. Holland and Susan A.P. Woodhouse. Alison Berry-Wilkinson, Rains, Lucia & Wilkinson, Pleasant Hill, California, argued the cause for Defendant-Appellee StevenSelvaggio. With her on the briefs was Kamili A. Williams.
