Reynald Lapuebla v. Alejandro Mayorkas

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2024
• Docket: 22-16520
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REYNALD LAPUEBLA, No. 22-16520

Plaintiff-Appellant, D.C. No. 1:19-cv-00097

v. MEMORANDUM* ALEJANDRO N. MAYORKAS, Secretary, U.S. Department of Homeland Security; et al.,

Defendants-Appellees.

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

Argued and Submitted February 12, 2024 Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges. Dissent by Judge M. SMITH.

Reynald LaPuebla (“LaPuebla”), a U.S. Customs and Border Protection

(“CBP”) officer in Guam, appeals the district court’s grant of summary judgment

in favor of Secretary Alejandro Mayorkas, the U.S. Department of Homeland

Security, and CBP (collectively, “the Agency”). LaPuebla sued the Agency for a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. hostile work environment under 42 U.S.C. § 2000e (“Title VII”) after a colleague

posted a photo of LaPuebla to a private Facebook group, where the colleague and

other Agency employees proceeded to mock LaPuebla’s perceived sexuality.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the district

court’s order granting summary judgment and remand for the court to (1) properly

apply the inverse relationship between severity and pervasiveness, and (2) give

further consideration to the agency’s motion for summary judgment in light of our

recent decision in Okonowsky v. Garland, --- F.4th ----, 2024 WL 3530231 (9th

Cir. July 25, 2024).

1. Inverse Relationship Analysis. The district court erred in its framing and

application of the inverse relationship between pervasiveness and severity. In a

Title VII hostile work environment claim, a plaintiff must demonstrate that the

harassment was “sufficiently severe or pervasive” as to “alter the conditions of

[his] employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations

omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), we held that “the required

showing of severity or seriousness of the harassing conduct varies inversely with

the pervasiveness or frequency of the conduct.” Id. at 878. This means that a

single incident would need to be “extremely severe” to establish a violation of Title

VII, and inversely, where there are many alleged incidents, each one need not

2 individually be as severe to establish a violation. See Brooks v. City of San Mateo,

229 F.3d 917, 926 (9th Cir. 2000).

Here, the district court determined that, even though “a reasonable jury

could find that [LaPuebla’s] claim of harassment arises from more than an

‘isolated incident,’” given the online nature of the posted photos, “the issue of

pervasiveness requires a unique approach due to the temporal ambiguity of

interactions with Quenga’s post.” Purporting to apply this “unique approach” to

the inverse relationship set out in Ellison, the district court held that it “would not

matter” how pervasive or frequent the jury found the harassment to be, because

“any increase in the number of incidents . . . would proportionally reduce the

severity of each incident.” The district court thus concluded that “a jury’s finding

of frequency given the facts presented would have a near zero-sum effect on the

hostile work environment analysis.”

The district court misapplied Ellison. No such “zero-sum effect” exists as a

result of the inverse relationship between severity and pervasiveness. Instead, the

relationship merely reduces a plaintiff’s burden to demonstrate the requisite

severity of each harassing incident, provided he can show that the harassment

occurred with greater pervasiveness. See Ellison, 924 F.2d at 878. We

accordingly remand for the district court to correctly apply the inverse relationship

to LaPuebla’s case.

3 2. Okonowsky v. Garland. In deciding the Agency’s motion for summary

judgment, the district court did not have the benefit of our recent decision in

Okonowsky, 2024 WL 3530231. In Okonowsky, we dealt with a Title VII case

involving sexually harassing social media content posted by the plaintiff’s

coworker. While this case and Okonowsky are not identical, they share some

factual similarities. And Okonowsky’s reasoning bears directly on the issues

presented in this case. Because neither the district court nor the parties had the

benefit of Okonowsky when considering or briefing the summary judgment motion,

we remand so the district court can apply Okonowsky’s holdings in the first

instance. See Detrich v. Ryan, 740 F.3d 1237, 1248–49 (9th Cir. 2013) (en banc)

(plurality opinion) (“A standard practice . . . is to remand to the district court for a

decision in the first instance . . . . [O]ur general assumption is that we operate

more effectively as a reviewing court than as a court of first instance.”), overruled

on other grounds by Shinn v. Ramirez, 596 U.S. 336 (2022); Ecological Rts.

Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th Cir. 2000) (“Our judicial

system generally assumes that consideration of an issue at both the trial court and

appellate court level is more likely to yield the correct result, because the issue will

be more fully aired and analyzed by the parties, because more judges will consider

it, and because trial judges often bring a perspective to an issue different from that

of appellate judges.”).

4 The parties shall bear their own costs on appeal.

VACATED AND REMANDED.

5 FILED LaPuebla v. Mayorkas, No. 22-16520 AUG 20 2024 M. SMITH, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Employers cannot, and should not, be held liable for the private conduct of

their employees outside of work. In the online era, however, determining when

outside-of-work conduct bleeds into the workplace, and thus creates a hostile work

environment, is a difficult task. Our decision in Okonowsky v. Garland, --- F.4th ---

-, 2024 WL 3530231 (9th Cir. 2024), confirms that the district court drew the line in

the appropriate place. Because I believe the actions in this case do not qualify as

either severe or pervasive enough to constitute a hostile workplace environment and

because the employer here took immediate corrective action, I respectfully dissent.

***

To survive summary judgment, a hostile work environment claim under Title

VII must “submit cognizable evidence sufficient to establish a jury question on

whether the victim (1) was subjected to verbal or physical conduct of a sexual nature,

(2) that was unwelcome; and (3) that was sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.”

EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 996–97 (9th Cir. 2010) (citing

Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)).

The Supreme Court “has cautioned that ‘simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory 1 changes in the terms and conditions of employment.’” Craig v. M&O Agencies, Inc.,

496 F.3d 1047, 1055–56 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)). Indeed, “Title VII is not a ‘general civility code.’” Prospect Airport Servs.,

Inc., 621 F.3d at 998 (quoting Faragher, 524 U.S. at 788). The district court

concluded that, although LaPuebla “met his burden to show that he subjectively

believed his work environment was hostile or abusive,” he was unable to meet his

burden to show that “the harassment was objectively offensive.” I agree and would

conclude based on well-settled precedent that this isolated incident did not surpass

“simple teasing” as a matter of law.1 Id.

First, the number of instances of harassment does not constitute a genuine

issue of material fact. “Because only the employer can change the terms and

conditions of employment, an 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.” Brooks v. City of San Mateo,

229 F.3d 917, 924 (9th Cir. 2000) (affirming grant of summary judgment for

employer where male employee groped his female co-worker underneath her clothes

against her will and vehement protest). This is true even if the behavior surpasses

1 Even if the district court’s “zero-sum” analysis were legally erroneous, we can affirm on any ground supported by the record. DeFries v. Union Pac. R.R. Co., 104 F.4th 1091, 1109 (9th Cir. 2024). 2 one singular incident. See Mattioda v. Nelson, 98 F.4th 1164, 1177 (9th Cir. 2024)

(“Harassment is not sufficiently severe or pervasive to establish a hostile work

environment where the conduct at issue consists of limited or isolated behavior.”).

The harassment at issue here is limited enough to require extremely severe

conduct to create a hostile workplace. The entirety of the alleged conduct took place

over the course of less than one week.2 In fact, we have only ever held that non-

severe conduct constitutes a hostile work environment if the harassment takes place

over the course of months, and in most cases, years.3 See Okonowsky, 2024 WL

3530231, at *12 (genuine issue of material fact existed where perpetrator targeted

plaintiff “on his Instagram account over a five-month period, often posting multiple

times per day”); Prospect Airport Servs., Inc., 621 F.3d at 996, 1000 (genuine issue

2 The photograph was posted on Facebook at some point between April 4, 2016, and April 7, 2016. The post received 107 likes and 11 comments. LaPuebla found out about the post on April 7, 2016, from his co-workers, and “there was laughter.” LaPuebla never saw the comments or emojis on the post prior to his deposition and testified that the post was taken down, at most, a week after it was posted. Quenga, the poster of the photograph, testified that he deleted the post on April 7, 2016. Quenga emailed LaPuebla apologizing for posting pictures of him without his permission on April 10, 2016. A week or two after the incident, Quenga approached LaPuebla in the bathroom and said, “Hey, Rey, can I talk to you?” but LaPuebla just “kept walking” and did not speak with him. LaPuebla does not allege any other contacts between himself and Quenga.

3 And even when “isolated incidents . . . t[ake] place over a period of years,” they do not make a work environment hostile. See Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992). 3 of material fact existed where plaintiff faced “four or five months of harassment”

followed by “six months of constant (and often daily) sexual pressure and

humiliation”); Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1035 (9th

Cir. 2005) (genuine issue of material fact existed where plaintiff testified that she

experienced sexual and sexist comments every day over a five year period); Draper

v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 1998) (genuine issue of

material fact existed where plaintiff experienced uncomfortable and humiliating

sexual remarks “throughout the course of her employment” for a “period of two

years”).

Second, the severity of the conduct does not create a genuine issue of material

fact because a reasonable jury could not conclude that the harassing conduct was

sufficiently severe to create a hostile work environment.4 Because this conduct

consists of, at the very most, a dozen or so comments over the course of one week,

LaPuebla would need to prove that the incident is very severe. It is not.

At the outset, there is nothing in the record that indicates that LaPuebla is

actually homosexual or that Quenga or any of the commenters actually viewed

LaPuebla as homosexual. He was not mocked for his “perceived homosexuality,”

4 In close cases, we only leave this assessment to the fact-finder “where the severity of frequent abuse is questionable.” Mattioda v. Nelson, 98 F.4th 1164, 1176 (9th Cir. 2024) (quoting Davis v. Team Electric Co., 520 F.3d 1080, 1096 (9th Cir. 2008)). As explained above, the conduct in this case could not be described as “frequent.” 4 as the majority suggests. The comments are clearly teasing, do not use slurs, do not

make threats, and include laughing emojis.

We have affirmed the grant of summary judgment for employers in cases

where the commentary was objectively much more offensive. For example, in

Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000), we affirmed

summary judgment for the defendant where he referred to one woman as a “regina,”

saying she “laughs like a hyena,” another as a “castrating bitch,” and women

generally as “bitches” and “histrionics.” Id. at 1107. In another case, we affirmed

summary judgment where a perpetrator offered oral sex, stated that the victim had a

“cute ass” and that “one experience of sexual intercourse with [the perpetrator]

would be life-altering” because those comments were “simple teasing” and

“insufficiently severe.” Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1189

(9th Cir. 2005). And in another case, we held that a plaintiff of Chinese descent

experienced only “simple teasing” where co-workers called a Chinese person a

“China man,” ridiculed the plaintiff for mispronouncing “Lima,” and “upon seeing

[plaintiff], pulled their eyes back with their fingers in an attempt to imitate or mock

the appearance of Asians.” Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th

Cir. 2003). These cases involve comments that target the actual identity of the victim

and that could be perceived as displaying genuinely discriminatory intent. And yet,

5 our court held that there was no genuine issue of material fact about severity in any

of them.

Inversely, the conduct in this case is nothing like the conduct in cases that we

held could create a hostile workplace. Most recently, in Okonowsky v. Garland, a

male co-worker targeted the plaintiff online with posts that contained: specific

threats that the perpetrator and his male colleagues would “gang bang” the plaintiff,

memes suggesting that the perpetrator wanted to shoot the plaintiff, derogatory

images resembling her likeness, and suggestions of rape, physical harassment, and

violence against women. 2024 WL 3530231, at *2–3. In Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75 (1998), the plaintiff was “forcibly subjected to

sex-related, humiliating actions against him” on “several occasions,” “physically

assaulted . . . in a sexual manner,” and “threatened . . . with rape.” 523 U.S. at 77.

Oncale testified that “if [he] didn’t leave [his] job, that [he] would be raped.” Id.

And in Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001),

the plaintiff was “subjected to a relentless campaign of insults, name-calling, and

vulgarities,” where co-workers referred to him “as ‘she’ and ‘her,’” mocked him for

“walking and carrying his serving tray ‘like a woman,’” and called him a “f****t”

and “fucking female whore.” Id. at 870. The abuse “occurred at least once a week

and often several times a day.” Id. Here, LaPuebla faced no threats or slurs of any

kind.

6 Finally, the agency’s response to the conduct clearly weighs in favor of

summary judgment.5 The district court appropriately focused on the agency’s swift

reaction after discovering the post. See Okonowsky, 2024 WL 3530231, at *10 (“In

cases where the plaintiff has experienced . . . harassment outside of and unrelated to

the workplace . . . that had a foreseeable, adverse impact on the plaintiff’s working

conditions, our focus in assessing the Title VII claim has centered on the employer’s

response to the offensive conduct.” (cleaned up and internal quotations omitted)).

“[B]ecause only an employer can change the terms and conditions of employment,

that will rarely if ever be the case[] if the employer takes appropriate corrective

action upon finding out about the harassment.” Prospect Airport Servs., Inc., 621

F.3d at 999. LaPuebla’s employer verbally instructed Quenga to take down the post,

sent him a Memorandum of Instruction to delete the post, followed up via email to

ensure that the post was taken down, and eventually sent him a formal Letter of

Reprimand. LaPuebla himself alleged that the post was taken down after he

contacted management.

5 Whether the harassment interfered with LaPuebla’s work performance weighs in favor of reversing but not strongly. Although LaPuebla said he planned to surrender his badge because of the harassment, the district court noted that LaPuebla “has not alleged that the harassment impacted his performance at work.” Even assuming the harassment interfered with LaPuebla’s work performance, that does not affect the totality of the circumstances considering the objectively unoffensive nature of this conduct.

7 Given that this conduct was only mildly severe, occurred entirely within one

week, and was immediately rectified by LaPuebla’s employer, the district court

arrived at the correct outcome in granting summary judgment.

“The conduct in this case is simply not of [the] order of magnitude” described

in cases like Okonowsky, Oncale, Brooks, Dominguez-Curry, Draper or Prospective

Airport Services. Kortan, 217 F.3d at 1111. Other than the significantly more severe

conduct at issue in those cases, the only variance in this case is that it, in part,

occurred on social media. But posting a photograph online does not turn simple

teasing into workplace harassment. Our opinion in Okonowsky confirms that

principle. For these reasons, I find it unnecessary to remand to the district court and

respectfully dissent.