Debra Robello v. Mandalay Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 26, 2018
• Docket: 17-15714
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBRA ROBELLO, No. 17-15714

Plaintiff-Appellant, D.C. No. 2:14-cv-00456-APG-VCF v.

MANDALAY CORP., DBA Mandalay MEMORANDUM* Bay Resort & Casino; JESSE ESTRADA; BARTENDERS UNION LOCAL 165, Consol,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted October 11, 2018** San Francisco, California

Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.

Plaintiff Debra Robello appeals the district court’s order granting summary

judgment in favor of Mandalay Corporation (“Mandalay Bay”) and Bartenders

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Union Local 165 (“Local 165”). Robello alleges that a co-worker, Jesse Estrada,

sexually assaulted her during work at Mandalay Bay by grabbing her breasts.

Robello filed suit against Mandalay Bay and Local 165 under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e. We have jurisdiction pursuant

to 28 U.S.C. § 1291. We affirm the district court.

We review the district court’s summary judgment decision de novo.

Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We view all

evidence in the light most favorable to Robello as the non-moving party and draw

all justifiable inferences in her favor. Id.

Robello argues that Mandalay Bay is liable under Title VII for creating or

tolerating a hostile work environment based on sexual harassment. We disagree.

To prevail on a hostile work environment claim under Title VII for sexual

harassment, a plaintiff must show that the conduct was “sufficiently severe or

pervasive ‘to alter the conditions of [the victim’s] employment and create an

abusive working environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

67 (1986) (alteration in original) (quoting Henson v. City of Dundee, 682 F.2d 897,

904 (11th Cir. 1982)). In addition, where, as here, harassment by a co-worker is at

issue, “the employer can be held liable only where ‘its own negligence is a cause of

the harassment.’” Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001) (quoting

2 Burlington Indus. v. Ellerth, 524 U.S. 742, 759 (1998)). Under the negligence

standard, an employer must “take prompt corrective action that is ‘reasonably

calculated to end the harassment.’” Id. at 1192 (quoting Nichols v. Azteca Rest.

Enters., Inc., 256 F.3d 864, 875 (9th Cir. 2001)). Here, the conduct was not

sufficiently severe or pervasive such that the conditions of Robello’s employment

were altered. See Brooks v. City of San Mateo, 229 F.3d 917, 923–27 (9th Cir.

2000) (holding that a similar single instance of sexual harassment was not

sufficiently severe or pervasive to establish a hostile work environment claim). In

addition, Mandalay Bay took “prompt corrective action that [was] ‘reasonably

calculated to end the harassment’” when it immediately suspended Estrada,

conducted a formal investigation, terminated Estrada, and, after later reinstating

Estrada, minimized contact between Robello and Estrada by ensuring they are not

scheduled to work at the same or adjacent work locations. Swenson, 271 F.3d at

1192 (quoting Nichols, 256 F.3d at 875); see also Brooks, 229 F.3d at 923–27.

Robello also argues that Local 165 caused Mandalay Bay to discriminate

against her by pursuing Estrada’s grievance. See 42 U.S.C. § 2000e-2(c)(3)

(making it unlawful for a union “to cause or attempt to cause an employer to

discriminate against an individual”). However, as we have already concluded,

Mandalay Bay did not discriminate against Robello, even though it ultimately

3 reinstated Estrada. Because reinstating Estrada was not discrimination against

Robello within the meaning of Title VII, Local 165 did not cause or attempt to

cause discrimination by advocating for Estrada’s reinstatement, and therefore

cannot be liable under 42 U.S.C. § 2000e-2(c)(3).

Lastly, Robello argues that Mandalay Bay and Local 165 are liable under

Title VII for retaliation. See 42 U.S.C. § 2000e-3(a). To defeat summary judgment

on a retaliation claim under Title VII, a plaintiff must show that “(1) she engaged

in activity protected under Title VII, (2) the employer subjected her to an adverse

employment decision, and (3) there was a causal link between the protected

activity and the employer’s action.” Passantino v. Johnson & Johnson Consumer

Prod., Inc., 212 F.3d 493, 506 (9th Cir. 2000); see also Brooks, 229 F.3d at

928–30. Robello has not shown that her retaliation claims against Mandalay Bay

and Local 165 qualify as “adverse employment decision[s]” or that there is a causal

connection between her complaint and the actions of Mandalay Bay and Local 165.

AFFIRMED.