Lapuebla v. Mullin

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REYNALD LAPUEBLA, No. 25-5188 D.C. No. Plaintiff - Appellant, 1:19-cv-00097 v. MEMORANDUM* MARKWAYNE MULLIN, Secretary, U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION,

Defendants - Appellees

Appeal from the District Court of Guam Michael J. Bordallo, Magistrate Judge, Presiding

Argued and Submitted June 24, 2026 Honolulu, Hawaii

Before: N.R. SMITH, MILLER, and JOHNSTONE, Circuit Judges.

Reynald LaPuebla appeals the district court’s grant of summary judgment to

the Secretary of the Department of Homeland Security, Department of Homeland

Security, and U.S. Customs and Border Protection (collectively, the Agency) on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his Title VII hostile work environment claim. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a grant of summary judgment, Bros. Mkt. LLC

No. 2 v. United States, 172 F.4th 758, 764 (9th Cir. 2026), and we affirm.

At the summary judgment stage, LaPuebla must present a genuine dispute as

to whether the allegedly harassing conduct he experienced was “sufficiently severe

or pervasive to alter the conditions of [his] employment and create an abusive

working environment.” EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 997

(9th Cir. 2010); see Okonowsky v. Garland, 109 F.4th 1166, 1178–79 (9th Cir.

2024). The conduct must be “both objectively and subjectively offensive, one that

a reasonable person would find hostile and one that the victim in fact did perceive

to be so.” Prospect Airport Servs., 621 F.3d at 997. The parties dispute only the

objective requirement. In analyzing objective hostility, we consider “the totality of

the circumstances surrounding the plaintiff’s claim,” including the severity and

pervasiveness of the alleged conduct. Okonowsky, 109 F.4th at 1179.

Because the required level of severity varies inversely with the

pervasiveness of the conduct, a single event is actionable only if it is “extremely

severe.” Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000); see also

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Here, the Facebook

post incident was not sufficiently severe to alter the terms and conditions of

LaPuebla’s employment. As crude, unseemly, and unwelcome as the comments on

2 25-5188 the post were, such comments fall short of constituting the extremely serious single

incident that a claim based on severity alone would require. See Faragher, 524

U.S. at 788; Brooks, 229 F.3d at 926.

Nor was the conduct sufficiently pervasive. It consisted of a single post that

was online for at most a week before the Agency ordered the poster to delete it. See

Brooks, 229 F.3d at 924 (“[A]n 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. . . . [I]f the employer takes

appropriate corrective action, it will not have ratified the conduct.”). Citing

Okonowsky, LaPuebla argues that the conduct here was sufficiently pervasive

because “[s]ocial media posts are permanently and infinitely viewable and re-

viewable[.]” 109 F.4th at 1180. But Okonowsky only determined that harassment

on social media may constitute conduct “occurring in” the workplace; it did not

hold that social media posts are per se pervasive. Id. (internal quotation marks

omitted). LaPuebla does not argue that the post remains online, nor does he offer

evidence that the photograph continued to circulate at his workplace after it was

taken down, distinguishing this case from the recurring conduct we have held

actionable. See, e.g., Zetwick v. Cnty. of Yolo, 850 F.3d 436, 438–39, 442 (9th Cir.

2017); Christian v. Umpqua Bank, 984 F.3d 801, 810–11 (9th Cir. 2020).

In light of the totality of the circumstances, including the Agency’s response,

3 25-5188 LaPuebla has not created a genuine dispute as to whether the alleged conduct was

sufficiently severe or pervasive to create an objectively hostile work environment.

The district court did not err in granting summary judgment to the Agency.

AFFIRMED.

4 25-5188