Office of the Circuit Executive
U.S. Court of Appeals for the Ninth Circuit
Case Name:
BROOKS V CITY OF SAN MATEO
Case Number:
Date Filed:
98-15818
10/23/00
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA A. BROOKS,
Plaintiff-Appellant,
No. 98-15818
v.
D.C. No. CV-96-03753-WHO
CITY OF SAN MATEO, a municipal
ORDER AND
corporation; SAN MATEO POLICE
OPINION
DEPARTMENT; JOHN STANGL, Chief
of Police; STEVEN SELVAGGIO,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William H. Orrick, Jr., District Judge, Presiding
Argued and Submitted
May 14, 1999--San Francisco, California
Filed October 23, 2000
Before: Harlington Wood, Jr.,* Alex Kozinski and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Kozinski
_________________________________________________________________
*The Honorable Harlington Wood, Jr., Senior Circuit Judge for the Sev-
enth Circuit Court of Appeals, sitting by designation.
13365
COUNSEL
John F. Prentice and Sheila A. Reid, Prentice & Scott, San
Francisco, California, argued the cause for the plaintiff-
appellant.
13369
Nancy E. Pritikin, Littler, Mendelson, San Francisco, Califor-
nia, 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, Carroll, Burdick and McDonough,
San Francisco, California, argued the cause for defendant-
appellee Steven Selvaggio. With her on the briefs was Kamili
A. Williams.
_________________________________________________________________
ORDER
The opinion filed June 5, 2000, and reported at 214 F.3d
1082, is withdrawn and superseded by the attached opinion.
The petition for rehearing is otherwise denied. The full court
was advised of the petition for rehearing en banc. A judge of
the court requested a vote on whether to rehear the matter en
banc, but the matter failed to receive a majority of the votes
of the nonrecused active judges in favor of en banc consider-
ation. Fed. R. App. P. 35. The petition for rehearing en banc
is denied.
_________________________________________________________________
OPINION
KOZINSKI , Circuit Judge:
We consider the legal implications of a single, rather unsa-
vory, episode of workplace sexual harassment.
I
Our story begins when Patricia Brooks, a telephone dis-
patcher for the City of San Mateo, California, and her
coworker, senior dispatcher Steven Selvaggio, manned the
city's Communications Center, taking 911 calls on the eve-
13370
ning shift. At some point during the evening, Selvaggio
approached Brooks as she was taking a call. He placed his
hand on her stomach and commented on its softness and sexi-
ness. Brooks told Selvaggio to stop touching her and then
forcefully pushed him away. Perhaps taking this as encour-
agement, Selvaggio later positioned himself behind Brooks's
chair, boxing her in against the communications console as
she was taking another 911 call. He forced his hand under-
neath her sweater and bra to fondle her bare breast. After ter-
minating the call, Brooks removed Selvaggio's hand again
and told him that he had "crossed the line." To this, Selvaggio
responded "you don't have to worry about cheating[on your
husband], I'll do everything." Selvaggio then approached
Brooks as if he would fondle her breasts again. Fortunately,
another dispatcher arrived at this time, and Selvaggio ceased
his behavior. Soon thereafter Selvaggio took a break and left
the building. Brooks immediately reported the incident and,
the following day, the city placed Selvaggio on administrative
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
female employees, including Pat P., another senior dispatcher,
had been subjected to similar treatment from Selvaggio. How-
ever, Selvaggio's earlier victims had not reported his miscon-
duct. Only after the city launched its investigation into
Brooks's allegations did these other incidents come to light.
While Selvaggio denied any misconduct, the investigation
adopted Brooks's version of events and concluded that
Selvaggio had violated the city's sexual harassment policy.
Selvaggio resigned after the city initiated termination pro-
ceedings against him. He later pled no contest to misdemea-
nor sexual assault charges and spent 120 days in jail.
Despite the city's prompt remedial action, Brooks had trou-
ble recovering from the incident. She took a leave of absence
immediately afterward and began seeing a psychologist. She
13371
returned to work six months later. According to Brooks, her
work environment had changed dramatically: The male
employees ostracized her and her supervisors mistreated her.
Brooks alleges that she had trouble getting her desired work
shift and preferred vacation dates, while other employees with
less seniority got their preferences. She also alleges that the
city delayed approval of her sick leave benefits, reprimanded
her for conduct it overlooked in other employees 1 and gave
her an unwarranted negative performance evaluation. Brooks
signed the evaluation but indicated that she would appeal it.
She submitted a written appeal which expressed her view that
the evaluation was intended to retaliate against her for com-
plaining about Selvaggio's behavior. While the city was con-
sidering her appeal, Brooks left work and never returned.
Brooks obtained right to sue notices from the EEOC and
the California Department of Fair Employment and Housing.
She then sued the city, the Police Department and its chief,
John Stangl, for sexual harassment and retaliatory discrimina-
tion in violation of Title 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. 2
All defendants moved for summary judgment.
_________________________________________________________________
1 Brooks has not renewed her argument that the reprimand was retalia-
tory. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n
appeal, arguments not raised by a party in its opening brief are deemed
waived.") (citing Brookfield Communications, Inc. v. West Coast Enter-
tainment Corp. , 174 F.3d 1036, 1046 n.7 (9th Cir.1999)).
2 Brooks also named Selvaggio as a defendant in her FEHA complaint.
Unlike Title VII, FEHA grants victims a cause of action 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 Title VII, 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 also impose personal lia-
bility for harassment on nonsupervisory coworkers."). Thus, Selvaggio
cannot be held liable unless senior dispatchers are supervisors. We con-
clude they are not. See note 6 infra.
13372
The district court held that Selvaggio's assault of Brooks in
the Communications Center was not severe enough to give
rise to a hostile work environment claim. As for Brooks's
retaliation claims, the district court held that she failed to
show that she had suffered any adverse employment conse-
quences. 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
hostile work environment. She also argues that the city is lia-
ble under FEHA and Title VII for failing to take steps to pre-
vent Selvaggio's misconduct of which it had actual or
constructive notice. Finally, Brooks claims that the district
court erred in finding no adverse job action to support her
retaliation claim. While Brooks argues that she was subjected
to sexual discrimination under Title VII as well as FEHA, we
need only assess her claim under federal law because Title
VII and FEHA operate under the same guiding principles.3
II
Title VII prohibits employment discrimination based on
any of its enumerated grounds: " `race, color, religion, sex, or
national origin.' " Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21
(1993) (quoting 42 U.S.C. ' 2000e-2(a)(1)). Sexual harass-
_________________________________________________________________
3 See Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 517 (Cal. Ct.
App. 1998) ("Although the wording of title VII differs in some particulars
from the wording of FEHA, the antidiscriminatory objectives and overrid-
ing public policy purposes of the two acts are identical. In an area of
emerging law, such as employment discrimination, it is appropriate to con-
sider federal cases 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 and Title 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)).
13373
ment is a species of gender discrimination: Harassing an
employee on account of sex is, conceptually, the same as
refusing to hire on account of sex, or paying less for the same
work, or imposing more onerous duties for the same pay. In
each such case, the employer violates Title VII by offering
terms and conditions to employees of one gender that are less
favorable than those it offers to employees of the other gen-
der. Sexual harassment, if committed or tolerated by the
employer, becomes a new and onerous term of employment.
[1] Sexual harassment falls into two major categories: hos-
tile work environment and quid pro quo. See EEOC, Policy
Guidance on Sexual Harassment, 8 BNA FEP Manual
405:6681 (Mar. 19, 1990) (hereinafter EEOC Policy Guide).
A hostile work environment claim involves a workplace
atmosphere so discriminatory and abusive that it unreasonably
interferes with the job performance of those harassed. A quid
pro quo claim, as the name implies, occurs when a supervisor
demands sexual favors in return for a job benefit. See gener-
ally Barbara Lindemann & David D. Kadue, Sexual Harass-
ment in Employment Law (1992). Additionally, employees
who are subject to adverse employment actions because they
lodged complaints of sexual harassment can raise a retaliation
claim under Title VII. See id. at 275. Brooks alleges she suf-
fered hostile work environment harassment during her
encounter with Selvaggio, and retaliation by the city when she
returned from the leave of absence precipitated by the inci-
dent.
Hostile Work Environment
[2] In order to prevail on her hostile work environment
claim, Brooks must show that her "workplace [was] perme-
ated with discriminatory intimidation . . . that[was] suffi-
ciently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment."
Harris , 510 U.S. at 21 (internal quotation marks and citations
omitted). "The working environment must both subjectively
13374
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 make out a col-
orable claim of hostile work environment. See Harris, 510
U.S. at 23. Harris lists frequency, severity and level of inter-
ference with work performance among the factors particularly
relevant to the inquiry. When assessing the objective portion
of a plaintiff's claim, we assume the perspective of the rea-
sonable 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 con-
duct which a reasonable woman would consider sufficiently
severe or pervasive to alter the conditions of employment and
create an abusive working environment.") (footnotes and cita-
tion omitted).
Brooks claims the incident pervaded her work environment
to such a degree that she required psychological help and even
then was unable to successfully return to her job. She has
alleged sufficient facts to support the subjective portion of her
hostile work environment claim. The question remains
whether her apprehension was objectively reasonable.
[3] Because only the employer can change the terms and
conditions of employment, an isolated incident of harassment
by a co-worker will rarely (if ever) give rise to a reasonable
fear that sexual harassment has become a permanent feature
of the employment relationship. By hypothesis, the employer
will have had no advance notice and therefore cannot have
sanctioned the harassment beforehand. And, if the employer
takes appropriate corrective action, it will not have ratified the
conduct. In such circumstances, it becomes difficult to say
that a reasonable victim would feel that the terms and condi-
tions of her employment have changed as a result of the miscon-
duct.4
_________________________________________________________________
4 A case involving a single incident of sexual harassment is obviously
distinct from one involving a series of incidents, which the employer
13375
Which is why Selvaggio's conduct, while relevant, is not
the primary focus of our inquiry. No one could reasonably
dispute that what Selvaggio did was egregious; he was, after
all, immediately removed from his job and prosecuted. He
spent time in jail. But it is the city, and not Selvaggio, who
is the defendant here. To hold her employer liable for sexual
harassment under Title VII, Brooks must show that she rea-
sonably feared she would be subject to such misconduct in the
future because the city encouraged or tolerated Selvaggio's
harassment.
[4] In support of her claim, Brooks points to Selvaggio's
previous inappropriate advances toward female employees, in
addition to her own encounter with him in the Communica-
tions Center. However, Brooks cannot rely on Selvaggio's
misconduct with other female employees because she did not
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 consid-
ered her working environment abusive. This is especially true
where the harassment comes from an individual who is termi-
nated as soon as his misdeeds come to light.
Brooks next attempts to morph Selvaggio's single assault
into a course of conduct by claiming that each of his improper
touchings constituted a separate incident. While Selvaggio did
touch Brooks inappropriately on her stomach and breast, this
happened within the course of a few minutes and was part of
a single episode. Additionally, Selvaggio had no chance to
become bolder because the city removed him from the work-
place once his actions were uncovered. No reasonable woman
_________________________________________________________________
knows about and does nothing to correct. In such circumstances, the non-
action by the employer can fairly be characterized as acquiescence, i.e.,
having changed the terms and conditions of employment to include putting
up with harassment from other employees. See, e.g., Hostetler v. Quality
Dining, Inc. , 218 F.3d 798, 802-05 (7th Cir. 2000).
13376
in Brooks's position would believe that Selvaggio's miscon-
duct had permanently altered the terms or conditions of her
employment.
The single case Brooks cites to the contrary, Al-Dabbagh
v. Greenpeace, Inc. , 873 F. Supp. 1105, 1111 (N.D. Ill. 1994),
holds only that a plaintiff can demonstrate the subjective ele-
ment of a hostile work environment claim based on a single
incident, even though she lacked knowledge of the offender's
past misconduct. Al-Dabbagh did not rely on the perpetrator's
past misconduct to establish an objectively hostile working
environment, except to the extent the employer failed to disci-
pline him for incidents of which it had knowledge. 5 Even
were we to assume that the city's knowledge is relevant to
establishing a hostile work environment, but see note 5 supra,
Selvaggio's conduct was not known to the city until after the
_________________________________________________________________
5 The objective portion of Al-Dabbagh's claim was based on the severity
of the incident plus negligence on the part of the employer, Greenpeace:
Al-Dabbagh alleges that Greenpeace had turned a blind eye to
Mitchell's sexual abuse of female employees in its Chicago
office before she fell victim to it and consequently suffered grave
bodily and psychological injury. As already stated, Greenpeace's
single response to Mitchell's earlier conduct--an oral reprimand
for his drinking--fell far short of addressing the more serious
problems posed by his conduct. There is no question that those
allegations, credited as they must be on the present motion,
amply support the 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 a hostile work envi-
ronment 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 more severe or pervasive with respect to the harassed
employee. Lack of adequate discipline might be a relevant consideration
in assessing the employer's liability once a hostile work environment is
shown to exist, but it seems to have no logical bearing on whether there
is a hostile work environment in the first place.
13377
assault.6 Brooks therefore can rely only on the single instance
of sexual harassment directed toward her to support her hos-
tile work environment claim.
_________________________________________________________________
6 Brooks claims that knowledge of Selvaggio's conduct can be imputed
to the city because Pat P. knew of it (indeed was a victim) 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 supervisor is aware.
The city also relies on Lamb. It points to language indicating that super-
visors, as that term is defined for Title VII purposes, are only those who
have authority to "hire, fire, or discipline employees, or recommend such
action." Id. at 1517. It is undisputed that senior dispatchers lacked the
authority to hire and fire dispatchers. While there is a vague reference to
senior dispatchers assisting with disciplinary measures, this is not suffi-
cient. See id. at 1517 (finding work flow supervisor with "limited set of
purely ministerial employee training and monitoring " functions not to be
a supervisor for Title VII purposes).
Lamb also provides for imputation where an employee who has "gen-
eral responsibility for passing employment-related complaints up the cor-
porate 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 con-
fines the responsibility of these non-management employees. See id. at
1517:
[F]or purposes of Title VII, "management-level employees"
encompass . . . non-management employees charged with sub-
stantial responsibility for relaying employee complaints to man-
agement, particularly where management is located away from
the workplace. If a co-worker has knowledge of a harassee's
complaint, but that co-worker lacks authority to counsel, investi-
gate, suspend, or fire the accused harasser, or to change the con-
ditions of the harassee's employment, the co-worker's inaction
does not spark employer liability unless that co-worker has an
official or strong de facto duty to act as a conduit to management
for complaints about work conditions.
Because Pat P., as a Senior Dispatcher, lacked power to change the condi-
tions of employment, did not serve as a conduit to off-site managers and
never actually received a formal complaint about Selvaggio, her knowl-
edge of his conduct cannot be imputed to the city.
13378
[5] We need not decide whether a single instance of sexual
harassment can ever be sufficient to establish a hostile work
environment.7 As we have previously held, "the required
showing of severity or seriousness of the harassing conduct
varies inversely with the pervasiveness or frequency of the
conduct." Ellison, 924 F.2d at 878 (citing King v. Board of
Regents , 898 F.2d 533, 537 (7th Cir.1990)). If a single inci-
dent can ever suffice to support a hostile work environment
claim, the incident must be extremely severe. See EEOC Pol-
icy Guide, page 6 supra, at 405:6690-91 ("[A] single unusu-
ally severe incident of harassment may be sufficient to
constitute a Title VII violation; the more severe the harass-
ment, the less need to show a repetitive series of incidents.
This is particularly true when the harassment is physical."). In
Al-Dabbagh , a single incident was held to be sufficient where
the assailant "slapped [plaintiff], tore off her shirt, beat her,
hit her on the head with a radio, choked her with a phone cord
and ultimately forced her to have sex with him." Al-Dabbagh,
873 F. Supp. at 1108. The perpetrator held the victim captive
overnight; when she finally managed to escape, she had to be
hospitalized for her injuries. See id.
[6] If the incident here were as severe as that in Al-
Dabbagh , we would have to grapple with the difficult ques-
tion whether a single incident can so permeate the workplace
as to support a hostile work environment claim. Because the
incident here was much less severe, we need not answer that
question. Brooks did not allege that she sought or required
hospitalization; indeed, she did not suffer any physical inju-
ries at all. The brief encounter between Brooks and Selvaggio
was highly offensive, but nothing like the ordeal suffered by
_________________________________________________________________
7 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-time episode is per se incapa-
ble of sustaining a hostile environment claim. The frequency of the alleged
harassment is a significant factor, but only one of many to be considered
in determining whether the conduct was sufficiently severe or pervasive
that a reasonable person would find that it had rendered the environment
hostile or abusive.") (internal quotation marks omitted).
13379
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 inter-
ference with working conditions, we cannot say that a reason-
able woman in Brooks's position would consider the terms
and conditions of her employment altered by Selvaggio's
actions.8 Brooks was harassed on a single occasion for a mat-
ter of minutes in a way that did not impair her ability to 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 to support 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 sex-
ual horseplay alleged by Candelore took place over a period
of years and were not so egregious 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 a five 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 insuffi-
cient harassment to constitute a hostile work environment
_________________________________________________________________
8 But see EEOC Policy Guide, page 6 supra, at 405:6691 ("The Com-
mission will presume that the unwelcome, intentional touching of a charg-
ing party's intimate body areas is sufficiently offensive to alter the
conditions of her working environment and constitute a violation of Title
VII.") We are not convinced that such a presumption is consistent with the
Supreme Court's totality of the circumstances test approach in Harris.
Nevertheless, even were we to adopt this presumption, the brief duration
of the incident coupled with the city's effective remedial action would suf-
fice to rebut it.
13380
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 at 873-75 (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 three single-spaced typed pages, and the
other was sent after Gray had been 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. Elli-
son'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.
Our holding in no way condones Selvaggio's actions. Quite
the opposite: The conduct of which Brooks complains was
highly reprehensible. But, while Selvaggio clearly harassed
Brooks as she tried to do her job, "not all workplace conduct
that may be described as harassment affects a term, condition,
or privilege of employment within the meaning of Title VII."
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal
quotation marks and citation omitted). The harassment here
was an entirely isolated incident. It had no precursors, and it
was never repeated. In no sense can it be said that the city
imposed upon Brooks the onerous terms of employment for
which Title VII offers a remedy.9See Faragher v. City of
_________________________________________________________________
9 A different question would arise if Selvaggio were Brooks's supervi-
sor, rather than her co-worker. Because the employer cloaks the supervisor
13381
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 `general civility code.' ") (quot-
ing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998)). We therefore affirm the district court's grant of
summary judgment with respect to Brooks's hostile work
environment claims under Title VII and FEHA.10
Retaliation
Six months after Selvaggio assaulted her, Brooks returned
to work. While Selvaggio had resigned under threat of termi-
nation, Brooks claims she returned to a very different work-
place than the one she had left. Brooks initially noticed that
her coworkers shunned her. Specifically, the males in the
office refused to speak to her about anything other than work.
She also saw pictures of Selvaggio in the Dispatch Center
photo album, which were removed on her demand. Addition-
ally, the city took its full 90 days to process Brooks's work-
er's compensation claim. Later, she was required to attend
group therapy sessions and discuss the incident in front of
_________________________________________________________________
with authority, we ordinarily attribute the supervisor's conduct directly to
the employer. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998). Thus, a sexual assault by a supervisor, even on a single occasion,
may well be sufficiently severe so as to alter the conditions of employment
and give rise to a hostile work environment claim.
10 Brooks also argues that the city is liable for its failure to take remedial
steps once it had knowledge, through Pat P., of Selvaggio's prior offend-
ing 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
6 supra . In any case, Fuller does not establish a cause of action that is sep-
arate from that for a hostile work environment or quid pro quo harassment.
It simply defines the liability of employers. "[I]f a hostile work environ-
ment exists, an employer is only liable for failing to remedy harassment
of which it knows or should know." Id. at 1527 (quoting Ellison , 924 F.2d
at 881). As there was no actionable sexual harassment, there is no liability
to assign to the city.
13382
coworkers. She had problems getting the shift she had when
she took her leave of absence; was assigned to work with
another dispatcher, Mike C., who had been close to Selvaggio
and allegedly became openly hostile to Brooks; and had diffi-
culty securing vacation time. According to Brooks, this treat-
ment culminated in an unfavorable job evaluation.
[7] We recently set out the peculiar dynamics of a retalia-
tion claim under Title VII in Payne v. Norwest Corp., 113
F.3d 1079 (9th Cir. 1997). We noted that a plaintiff must
show (1) involvement in a protected activity, (2) an adverse
employment action and (3) a causal link between the two. See
id. at 1080. Thereafter, the burden of production shifts to the
employer to present legitimate reasons for the adverse
employment action. Once the employer carries this burden,
plaintiff must demonstrate a genuine issue of material fact as
to whether the reason advanced by the employer was a pre-
text. See id. Only then does the case proceed beyond the sum-
mary judgment stage. We examine FEHA claims under the
same burden-shifting structure. See Flait v. North Am. Watch
Corp. , 3 Cal. App. 4th 467, 476 (Cal. Ct. App. 1992).
[8] Asserting one's civil rights, as Brooks did by complain-
ing of Selvaggio's conduct, is a protected activity under Title
VII and FEHA. See EEOC v. Crown Zellerbach Corp., 720
F.2d 1008, 1013 (9th Cir. 1983); Blom v N.G.K. Spark Plugs
(USA), Inc. , 3 Cal. App. 4th 382, 388 (Cal. Ct. App. 1992).
Brooks's complaint about Selvaggio's harassment thus satis-
fies the first step of our inquiry.
[9] The next question is whether Brooks alleged that she
was subjected to an adverse employment action. In Strother
v. University of S. Cal. Permanente Med. Group , 79 F.3d 859
(9th Cir. 1996), we noted that "[n]ot every employment deci-
sion amounts to an adverse employment action." Id. at 869.
We recognize the countervailing concerns in this area of the
law. On the one hand, we worry that employers will be para-
lyzed into inaction once an employee has lodged a complaint
13383
under Title VII, making such a complaint tantamount to a "get
out of jail free" card for employees engaged in job miscon-
duct. On the other hand, we are concerned about the chilling
effect on employee complaints resulting from an employer's
retaliatory actions. In an effort to strike the proper balance, we
have held that only non-trivial employment actions that would
deter reasonable employees from complaining about Title VII
violations will constitute actionable retaliation. See Ray v.
Henderson , 217 F.3d 1234, 1243 (9th Cir. 2000) ("[A]n
action is cognizable as an adverse employment action if it is
reasonably likely to deter employees from engaging in pro-
tected activity."). Among those employment decisions that
can constitute an adverse employment action are termination,
dissemination of a negative employment reference, issuance
of an undeserved negative performance review and refusal to
consider for promotion. 11 By contrast, we have held that
declining to hold a job open for an employee and badmouth-
ing an employee outside the job reference context do not con-
stitute adverse employment actions.12 With these principles in
mind, we examine Brooks's allegations of retaliatory treat-
ment by the city.
[10] Because an employer cannot force employees to
socialize with one another, ostracism suffered at the hands of
coworkers cannot constitute an adverse employment action.
See Strother , 79 F.3d at 869 ("[M]ere ostracism in the work-
place is not enough to show an adverse employment deci-
sion.") (citing Fisher v. San Pedro Peninsula Hosp., 214 Cal.
App. 3d 590, 615 (Cal. Ct. App. 1989)). Indeed, holding an
_________________________________________________________________
11 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. Califor-
nia Polytechnic State Univ. , 797 F.2d 782, 786 (9th Cir. 1986) (refusing
to consider for promotion).
12 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).
13384
employer liable because its employees refuse to associate with
each other might well be unconstitutional: "The First Amend-
ment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with its
employees' freedom to believe and associate." DiRuzza v.
County of Tehama , 206 F.3d 1304, 1308 (9th Cir. 2000)
(quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 76
(1990)).
[11] The group therapy sessions about which Brooks com-
plains were workshops designed to better inform the city's
workforce of its sexual harassment policy. Brooks does not
claim she was singled out for the sessions, as all city employ-
ees were required to participate in them. Her complaint seems
to boil down to the non-private character of the sessions. But
the employer has an interest in educating its employees about
the adverse effects of misconduct that has occurred in the
workplace. An employer's legitimate effort to deal with a
traumatic workplace situation and educate its employees
regarding sexual harassment cannot be the basis for a retalia-
tion 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 this might be an adverse employment action under cer-
tain 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 has presented no evidence that the city put the two
of them together knowing that Brooks would be uncomfort-
able. Nor did Brooks present evidence that Mike C. was
openly hostile, or hostile at all, toward her. She admits that he
showed her no animus, nor did he express skepticism to her
about her account as to what happened with Selvaggio. While
it appears that Mike C. had been friendly with Selvaggio, a
victim of sexual harassment is not entitled to avoid contact
with the harasser's friends. So long as they show no outward
13385
signs of hostility, they are entitled to continue doing their jobs
even though it brings them in contact with the victim.
As for the fact that the city used all of its allotted 90 days
to process the worker's compensation claim, Brooks offers no
evidence that the city treated her differently from other
employees seeking workers' compensation benefits. Absent a
showing of disparate treatment, the city's delay cannot be
deemed retaliatory.
[12] Brooks also alleges that her performance review was
downgraded from "satisfactory" to "needs improvement"
because of her complaint about Selvaggio. We have previ-
ously held that an undeserved negative performance review
can constitute an adverse employment 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].") (cita-
tion omitted). Nevertheless, the evaluation here was not an
adverse employment action because it was subject to modifi-
cation by the city. Brooks refused to accept the review and
appealed, but she abandoned her job while the appeal was
pending. Because the evaluation could well have been
changed on appeal, it was not sufficiently final to constitute
an adverse employment action. Cf. Dobbs-Weinstein v. Van-
derbilt Univ. , 185 F.3d 542, 546 (6th Cir. 1999) ("Dobbs-
Weinstein succeeded in the grievance process, and Vander-
bilt's final decision was to grant her tenure. She has not here
suffered a final or lasting adverse employment action suffi-
cient to create a prima facie case of employment discrimina-
tion under Title VII. To rule otherwise would be to encourage
litigation before the employer has an opportunity 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. How-
ever, like the evaluation, these actions were not final. When
13386
Brooks complained, the city accommodated her preferences
by allowing her to switch shifts and vacation dates with other
employees.13 The district court did not err in rejecting
Brooks's retaliation claim.
III
Brooks alludes briefly in her moving papers to a construc-
tive discharge theory citing Turner v. Anheuser-Busch, Inc.,
7 Cal. 4th 1238 (1994), and Watson v. Nationwide Ins., Co.,
823 F.2d 360 (9th Cir. 1987). As explained in Turner, con-
structive discharge occurs when the working conditions dete-
riorate, as a result of discrimination, to the point that they
become "sufficiently extraordinary and egregious to over-
come the normal motivation of a competent, diligent, and rea-
sonable employee to remain on the job 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 (noting that constructive dis-
charge is found where a working environment is "so intolera-
ble and discriminatory as to justify a reasonable employee's
decision [to leave]"); EEOC Policy Guide, page 6 supra, at
405:6693 ("[A]n employer is liable for constructive discharge
when it imposes intolerable working conditions [which] fore-
seeably 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 the dispatch center photo album, to the routine, such as
scheduling conflicts. Taken collectively, these circumstances
are not sufficiently extraordinary or egregious to amount to a
constructive discharge.
_________________________________________________________________
13 Brooks also alleges that, after she complained about Selvaggio, certain
police officers refused to provide her services that were routinely provided
to other dispatchers. However, the police did not employ Brooks and can-
not be held liable for retaliating against 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.").
13387
While Watson holds that the determination of whether
working conditions are sufficiently egregious to support a
constructive discharge theory is usually a jury question, see
Watson , 823 F.2d at 361, the district court did not err in
deciding that Brooks's claim fails as a matter of law. Taking
the evidence in the light most favorable to Brooks, we cannot
see how a reasonable trier of fact could find that she was
driven from the workplace. Where a plaintiff fails to demon-
strate the severe or pervasive harassment necessary to support
a hostile work environment claim, it will be impossible for
her to meet the higher standard of constructive discharge:
conditions so intolerable that a reasonable person would leave
the job. Cf. Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.
1989) (constructive discharge requires some aggravating fac-
tors, such as a continuous pattern of discriminatory treat-
ment).
AFFIRMED.