Medina Rene,plaintiff-Appellant v. Mgm Grand Hotel, Inc.,defendant-Appellee

243 F.3d 1206, 2001 Daily Journal DAR 3167, 2001 Cal. Daily Op. Serv. 2515, 2001 U.S. App. LEXIS 5201, 80 Empl. Prac. Dec. (CCH) 40,432, 2001 WL 300595
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 29, 2001
Docket98-16924
StatusPublished
Cited by12 cases

This text of 243 F.3d 1206 (Medina Rene,plaintiff-Appellant v. Mgm Grand Hotel, Inc.,defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medina Rene,plaintiff-Appellant v. Mgm Grand Hotel, Inc.,defendant-Appellee, 243 F.3d 1206, 2001 Daily Journal DAR 3167, 2001 Cal. Daily Op. Serv. 2515, 2001 U.S. App. LEXIS 5201, 80 Empl. Prac. Dec. (CCH) 40,432, 2001 WL 300595 (9th Cir. 2001).

Opinions

[1207]*1207OVERVIEW

HUG, Circuit Judge:

This case presents the question whether a plaintiff who alleges discrimination based on sex under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., may defeat a summary judgment motion when the evidence he presents supports only the claim that he was discriminated against because of his sexual orientation. We conclude that he may not.

Medina Rene appeals from the district court’s summary judgment in favor of defendant MGM Grand Hotel in his action under Title VII alleging that he was harassed by his male co-workers and supervisor because he is gay. The district court granted MGM’s motion for summary judgment, concluding that Title VII’s prohibition of discrimination because of a person’s sex does not apply to discrimination based on sexual orientation.1 We affirm.

I. BACKGROUND

The record of events in this case is not in dispute before this court. From December 1993 to June 1996, Medina Rene, an openly gay man, was employed by the MGM Grand Hotel in Las Vegas, Nevada, and worked as a butler on the 29th floor, which was reserved for high-profile and wealthy guests. All of the employees assigned to the floor were male. Rene’s responsibilities included responding to the requests of guests staying on that floor.

Rene provided extensive evidence that from approximately February 1994 to February 1996, his supervisor, Tang Lam, and several of his co-workers subjected him to a hostile work environment. According to Rene, the harassment took place “practically every day,” and comprised a panoply of markedly crude, demeaning, and sexually oriented activities.

Rene’s brief on appeal states:

The sexual harassment consisted of, among other things, being grabbed in the crotch and poked in the anus on numerous occasions, being forced to look at pictures of naked men having sex while his co-workers looked on and laughed, being caressed, hugged, whistled and blown kisses at, and being called “sweetheart” and “Muñeca.”2 When asked why he believed his coworkers engaged in the conduct Rene responded that it was because he is gay.

His complaints to superiors were of no avail.

On April 13,1997, Rene filed a complaint in federal district court, alleging that he had been unlawfully sexually harassed in violation of Title VII. He included a copy of his charge of discrimination filed with the Nevada Equal Rights Commission, wherein he alleged that he was “discriminated against because of my sex, male ...” MGM moved for summary judgment on the grounds that any harassment Rene experienced was not due to his sex, but solely due to his sexual orientation.

The district court analyzed the issues raised by Rene’s complaint as “whether harassment based on a person’s sexual orientation is actionable under Title VII.” It then granted summary judgment in favor of MGM, concluding that “Title VII’s prohibition of ‘sex’ discrimination applies only [to] discrimination on the basis of gender and is not extended to include discrimination based on sexual preference.”

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). “[We] must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” [1208]*1208Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc).

III. DISCUSSION

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides that “[i]t shall be an unlawful employment practice ... to discriminate against any individual ... because of ... sex.” 42 U.S.C. § 2000e-2(a)(l) (emphasis added). It is by now clear that sexual harassment is a form of discrimination based on sex. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (“Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”). Rene alleged that he was sexually harassed by his male co-workers and supervisors under the hostile work environment theory of sexual harassment. To succeed on that theory, Rene must first prove that he was forced to endure a subjectively and objectively abusive working environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000). In this case, the parties do not dispute the existence of a hostile working environment, for there is no doubt that the harassment that Rene alleged was so objectively offensive that it created a hostile work environment. There is also no dispute that the harassment visited upon Rene occurred because he was an openly gay man.

Rene relies on Oncale to make his case, contending that the Supreme Court impliedly held that discrimination based on sexual orientation is actionable under Title VII. This is a misreading of Oncale. That case did involve harassment of the male plaintiff by his male co-workers, some of which was similar to the harassment in this case. The Fifth Circuit Court of Appeals affirmed summary judgment in favor of the employer on the ground that “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.” Oncale, 523 U.S. at 77, 118 S.Ct. 998. The sole issue before the Supreme Court on certiorari was whether same-sex sexual harassment is actionable under Title VII. The Court held that it was. However, the Supreme Court explained, “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discnmi-natfion] ... because of ... sex.’ ” Id. at 80, 118 S.Ct. 998. Never has it been held “that workplace harassment, even harassment. between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.” Id. Rather, under Title VII, the plaintiff “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimi-naftion] ... because of ... sex.’ ” Id. at 81, 118 S.Ct. 998; see also id. at 82, 118 S.Ct.

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243 F.3d 1206, 2001 Daily Journal DAR 3167, 2001 Cal. Daily Op. Serv. 2515, 2001 U.S. App. LEXIS 5201, 80 Empl. Prac. Dec. (CCH) 40,432, 2001 WL 300595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medina-reneplaintiff-appellant-v-mgm-grand-hotel-incdefendant-appellee-ca9-2001.