Kathleen Denning v. County of Washoe

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2020
• Docket: 18-16880
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KATHLEEN DENNING, No. 18-16880

Plaintiff-Appellant, D.C. No. 3:17-cv-00463-MMD-WGC v.

COUNTY OF WASHOE, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted March 26, 2020** Las Vegas, Nevada

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

Kathleen Denning appeals from the district court’s order granting summary

judgment to the County of Washoe on her hostile work environment claim under

the Americans with Disabilities Act (ADA). Assuming that hostile work

environment claims are cognizable under the ADA, see Brown v. City of Tucson,

* 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). Page 2 of 3

336 F.3d 1181, 1190 (9th Cir. 2003), and that Denning’s epilepsy qualifies as a

disability, we affirm.

Although a reasonable jury could conclude that Denning’s supervisor,

Robert Smith, mistreated her on the basis of her disability, Smith’s conduct was

not “severe or pervasive enough” to create a hostile work environment. See

Vasquez v. County of Los Angeles, 349 F.3d 634, 643 (9th Cir. 2003). Construing

the facts in the light most favorable to Denning, Smith made two derogatory

statements about her disability over a three-year period, told her co-workers that

she was a “problem child” and a “trouble-maker,” assigned her longer shifts and

less desirable tasks, and “subjected [her] to excessive scrutiny.” This conduct falls

short of the “extreme” behavior required for a hostile work environment claim.

See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Dominguez-

Curry v. Nevada Transportation Department, 424 F.3d 1027, 1035 (9th Cir. 2005)

(reversing a district court’s dismissal of a hostile work environment claim under

Title VII where a supervisor repeatedly made derogatory statements about women

in the workplace, openly expressed anger towards women who took maternity

leave, and told sexually explicit jokes on a daily basis). Because Denning’s

evidence of “isolated offensive remarks” and instances of “unfair treatment” are

insufficient to support a hostile work environment claim, see Vasquez, 349 F.3d at

644, the district court properly granted summary judgment to the County. Page 3 of 3

AFFIRMED.