2002-20

UNITED STATES COURT OF APPEALS - NINTH CIRCUIT.

A. Ninth Circuit Allows An Openly Gay Employee To Proceed With His Title VII Action For Harassment.

In Rene v. MGM Grand Hotel Inc., 2002 Daily Journal D.A.R. 11059 (9th Cir., September 25, 2002),⁽¹⁾ the District Court granted summary judgment in favor of the employer, concluding that Title VII's prohibition against discrimination on the basis of gender does not apply to discrimination based exclusively upon sexual orientation. In the original appeal to the Ninth Circuit, the three-member panel agreed with the trial court, concluding that plaintiff Rene failed to carry his burden to show that the discrimination he endured was "because of . . . sex." The case was then argued en banc to the Ninth Circuit and the summary judgment was reversed.

Plaintiff Medina Rene is an openly gay male working as a butler for high-profile, famous guests at the MGM Grand Hotel in Las Vegas. During a two-year period, fellow male butlers told crude jokes, gave sexually-oriented gifts, and forced plaintiff to look at pictures of naked men having sex. The conduct of the fellow employees also involved offensive physical conduct that included caressing, hugging, and touching. Specifically, the physical contact included grabbing plaintiff in the crotch and poking fingers in his anus through his clothing.

Emphasizing the "physical conduct of a sexual nature" prevalent in the case, the plurality opinion of Justice Fletcher reasoned that "sexual touching" becomes hostile "because of . . . sex." A person's sexual orientation is irrelevant to the analysis. Rather, Title VII forbids offensive touching (a physical assault of a sexual nature) whether the attack is performed by members of the same sex or by members of the opposite sex. Moreover, offensive sexual touching is actionable discrimination even in a same-sex workforce because it is the use of the forbidden criterion of "sex" as a basis for disadvantageous difference in treatment. Therefore, a plaintiff need not show that he was treated worse than members of the opposite sex; plaintiff need only show "he suffered discrimination in comparison to other men." The court concluded that it was clear that the offensive conduct "was sexual" and it was clear that the offensive conduct was discriminatory - that Rene was treated differently.

Judge Pregerson issued a concurring opinion emphasizing "gender stereotyping harassment." Because Rene testified that his coworkers teased him about walking like a woman, called him sweetheart, and treated him "the way a man would treat a woman," the prohibition against discrimination on the basis of gender stereotypes applied.

Judge Hug dissented. Judge Hug took a far more practical approach to the entire situation. First, he emphasized the statutory language of Title VII, that it is only an unlawful employment practice for an employer to discriminate "because of" sex. His focus was on the fact that the term "sex" in Title VII has been used interchangeably to mean "gender" and discrimination based on "gender" is prohibited. Harassment because a person is short, bald, or belongs to an unpopular social group is not actionable under Title VII. Physical assaults in general are not actionable. It is only a physical assault based on gender (or one of the other protected categories) that is protected. Judge Hug concluded that plaintiff Rene had no actionable claim because he was not assaulted "because of . . . sex [gender]." Second, Judge Hug rejected the gender stereotyping analysis of Judge Pregerson's concurring opinion simply because the issue had never been raised in the trial court or on appeal by plaintiff. Issues not raised are waived. Moreover, the gender stereotyping analysis did not apply factually because plaintiff's express testimony contradicted the theory. There was no contention the harassment experienced by Rene was because he was effeminate. In fact, Rene testified both that he was masculine in appearance and that he believed his coworkers harassed him solely because he was gay.

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B. The Ninth Circuit Concludes Plaintiff Cannot Establish Prima Facie Case Of Discrimination Because Neither A Written Warning Nor An Employee's Transfer Constitute An Objectively Adverse Employment Action.

In Vasquez v. County of Los Angeles, 2002 Daily Journal D.A.R. 11363 (9th Cir., October 1, 2002),⁽²⁾ plaintiff was a deputy probation officer ("DPO") working in a detention facility with juveniles. Each DPO in the facility is assigned to a "cottage" and plaintiff Vasquez was assigned to "turquoise cottage." He filed a grievance against a fellow DPO Berglund who reprimanded him once for having a "typical Hispanic macho attitude" with the minors. The facility director immediately offered to transfer Vasquez to another cottage but he refused. One month later, Berglund made a second comment that Vasquez should take a job in the field because "Hispanics do good in the field." Then, while Berglund was performing duties as an interim Acting Director of the detention facility, Berglund wrote a memo that Vasquez disobeyed her order for turquoise cottage not to play football. As a result of the football incident, Vasquez was transferred by Director Leeds from turquoise cottage to a field position and was issued a letter of warning for failing to follow instructions.

Plaintiff Vasquez sued for discrimination, harassment, and retaliation under Title VII and the trial court granted the county's summary judgment motion. The Ninth Circuit Court of Appeals affirmed. First, the Ninth Circuit held that plaintiff failed to establish a prima facie case of discrimination. The evidence established that a DPO assigned to a cottage has the same pay, the same hours, and the same amount of responsibility and authority as a DPO in the field. The only difference in jobs is that a field DPO has more administrative duties and less interaction with the youth. Vasquez admitted the move was lateral but testified it was detrimental to him because he preferred to work in the cottage with more contact with the youth. Even though the Ninth Circuit takes a "broad view" of adverse employment actions, it rejected the concept that "purely subjective detriment" is sufficient to establish an adverse employment action. The court determined the proper inquiry is an objective inquiry and that the act of transferring plaintiff to the field was not objectively adverse. Similarly, the warning letter was not a reprimand, suspension, or demotion. Rather, the warning letter was not permanent and it served the single purpose of informing the employee "that he did something wrong." Therefore, the warning did not constitute an adverse employment action.

The Ninth Circuit also concluded that plaintiff failed to establish a hostile work environment. Despite plaintiff's claims of continual harassment, Vasquez presented evidence regarding "only a few incidents." The court found two isolated incidents of offensive remarks and other complaints of unfair treatment were not severe or pervasive.

Lastly, the Ninth Circuit also rejected plaintiff's retaliation claim. First, Vasquez did not exhaust administrative remedies because his EEOC claim only charged harassment and different treatment, and he did not check the box for retaliation. Even though Vasquez claimed that the Director Leeds threatened to transfer him out of the program altogether if he did not drop his discrimination claim, that event did not allegedly occur until after the EEOC charge was filed by Vasquez and those facts were not asserted in the EEOC charge. Because Vasquez presented neither his legal theory of retaliation nor the facts regarding that claim to the EEOC, the court lacked jurisdiction. Second, while Vasquez did assert factually in his EEOC charge that he had been transferred from turquoise cottage, he still did not establish retaliation because he did not show either a causal link between the alleged adverse action⁽³⁾ and the protected activity or that the employer's proffered reason was pretextual.

Judge Ferguson dissented on the grounds that the majority had erected a new requirement that the employment action must be "objectively adverse." The concurring opinion concentrated on the fact that Title VII is so broad as to cover intangible as well as tangible harms suffered by the employee. Ferguson concluded the proper inquiry was whether a "reasonable" employee would view the transfer as adverse. He determined the plaintiff's transfer from turquoise cottage was adverse, affecting the terms, conditions, and privileges of employment because the transfer deprived the DPO of the opportunity to interact with and care for minors.

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C. In Order To Establish A Disability, Monocular Employee Must Show The Impairment Prevents Or Severely Restricts Use Of Eyesight Compared To Unimpaired Individuals.

The litigation in EEOC v. United Parcel Service, 2002 Daily Journal D.A. R. 10941 (9th Cir., September 23, 2002)⁽⁴⁾ involves several monocular employees of UPS who wanted to drive UPS trucks but who were not qualified to do so under the UPS "vision protocol." The Ninth Circuit concluded the employees were not disabled but the court remanded the case for a further determination by the trial court whether UPS perceived the claimants as substantially limited.

UPS operates a number of small trucks and vans that are not regulated by the Department of Transportation. Drivers of DOT regulated vehicles are subject to DOT physical, vision standards - requiring visual acuity of 20/40 in each eye. With regard to the smaller vehicles, UPS adopted its own vision protocol allowing for 20/40 vision in one eye and at least 20/200 in the "affected" eye. Vision acuity of 20/200 is considered legally blind. Anyone with vision worse than 20/200, or without any vision at all in one eye, cannot pass the UPS protocol.

Francis and Ligas sought full-time employment and have no vision in their right eye. Both had problems with judging depth and with peripheral vision. Both had been involved in "avoidable" automobile accidents. Both were excluded by UPS from full-time driving positions. Hogya was legally blind in his left eye but his day-to-day life was unaffected (he golfs, snowboards, rifles, hikes, skis). He had a record of two accidents, but both were unavoidable. The District Court found Francis and Ligas disabled, but not otherwise qualified; it found Hogya not disabled, but that UPS regarded him as disabled. In fact, the District Court found that UPS regarded all monocular claimants as having an impairment that substantially limited their seeing because UPS has "a corporate-wide, deeply entrenched conviction that drivers with only one good eye are unsafe at any speed." As a consequence of these findings, the District Court issued injunctive relief and ordered UPS to allow Hogya to advance in its training program.

UPS appealed and the EEOC filed a cross-appeal. On appeal, UPS argued that the judgment against the EEOC relative to Francis and Ligas could be affirmed on the basis that those two employees were not disabled. The Ninth Circuit agreed, stating: "a person cannot be regarded as disabled unless the deficiency that the person is regarded as having is a disability." The court recognized that a "mere difference" in the manner in which a monocular individual sees does not make the limitation substantial. The term "substantial" precludes a finding of disability for impairments that interfere in only a minor way with the performance of manual tasks. In order for a monocular individual to show that his impairment is a disability, "the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life." Therefore, some visual impairment does not mean an individual is substantially limited in seeing overall. The court concluded Francis and Ligas were not disabled because they both "drive . . . , read, use tools, and play sports." Their impairments did not keep either one of them from using eyesight "as most people do for daily life."

The Ninth Circuit also concluded that the same standard would apply to the issue of whether an individual is "regarded as" having an impairment. UPS argued that there was no substantial evidence to support the District Court's finding that UPS regarded Hogya or all claimants as disabled. The Ninth Circuit agreed in part, stating that neither UPS's casual references to "disability" to other claimants nor the mere existence of a vision protocol support those findings. However, the Ninth Circuit was reluctant to overturn the district court on the "regarded as" issue. It remanded the case to the District Court "for a further look" in light of the court's determination on the first issue.

III. OTHER UNITED STATES COURT OF APPEALS.

A. Employee Fired For Engaging In Adulterous Relationship Is Not Protected Under The Constitution From Termination Of Employment.

In Marcum v. McWhorter, 184 D.L.R. E-1 (6th Cir., September 23, 2002),⁽⁵⁾ plaintiff Marcum was employed as a county deputy sheriff for 10 years when he began having a non-sexual relationship with Abbott, an informant and a married woman. He too was married at the time (albeit separated). Marcum was counseled by his supervisor because of rumors and complaints from other employees about Marcum's association with Abbott. After about one year, the two rented a townhouse, began living together as roommates, and Marcum was promptly fired 10 days later. While the facts were in dispute about their romantic involvement before they became roommates, it was undisputed they became romantically involved during the time they lived together. Marcum sued under Title 42 U.S.C. § 1983 alleging he was fired in violation of his constitutional right to freedom of association. The District Court and the Sixth Circuit Court of Appeal disagreed.

The Sixth Circuit discussed the two recognized types of freedom of association. Freedom of association is recognized in one form as a right to associate for the purpose of engaging in First Amendment activities (speech, assembly, petition for redress, exercise of religion). Without discussion, the court concluded that the personal relationship at issue did not involve expressive activity under this type of protection. Freedom of association is also recognized in another form - as a right of intimate association protected against undue State intrusion. Those protected relationships "are those that attend the creation and sustenance of a family." The Sixth Circuit concluded that the "adulterous nature of the relationship" did not portray a relationship of the most intimate variety normally afforded constitutional protection. Noting that adultery was once a capital offense, "a right to engage in an intimate sexual relationship with the spouse of another cannot be said to be either deeply rooted in this Nations's history and tradition or implicit in the concept of ordered liberty."

1. Plurality Opinion by J. Fletcher; J. Pregerson, concurring, joined by J. Trott and J. Berzon; J. Graber, concurring; J. Fisher concurring; J. Hug, dissenting joined by C.J. Schroeder, J. Fernandez, and J. T.G. Nelson.

2. Opinion by J. Nelson, J. Fletcher, concurring; J. Ferguson, dissenting.

3. The court defined adverse action for retaliation as follows: an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.

4. Opinion by J. Rymer, J. Canby, Jr., Senior District Judge Bertelsman, concurring.

5. Opinion by J. Siler; C. J. Martin and J. Clay, concurring.

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