NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JULIE M. JOKI, No. 12-35413
Plaintiff - Appellant, D.C. No. 1:08-cv-00849-PA
v.
MEMORANDUM*
ROGUE COMMUNITY COLLEGE; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted October 7, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Julie Joki appeals from the district court’s grant of Defendants-Appellees’
motions for summary judgment on her claims of gender discrimination and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in
part and reverse and remand in part.
Both parties agree that the district court accurately calculated the relevant
statutes of limitations for Joki’s claims under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e, Oregon state law, and 42 U.S.C. § 1983. In applying these
limitations periods, we are guided by the Supreme Court’s holding that “discrete
discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges,” while “a hostile work environment claim . . .
will not be time barred so long as all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls within the time
period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102, 122 (2002)
(addressing Title VII claims); see also Carpinteria Valley Farms, Ltd. v. Cnty. of
Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003) (applying Morgan to § 1983
action based on discrete acts).
The district court correctly granted summary judgment on Joki’s Title VII
and state law claims. Joki relies on Michael Laam’s observation of her October 5,
2006 class as evidence of discrimination and retaliation. But there is no evidence
that this event was either a discrete act of discrimination or retaliation or an act
contributing to a hostile work environment. Defendants-Appellees presented
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evidence that Laam observed Joki’s class after receiving several student
complaints. Joki has failed to produce rebuttal evidence that similarly situated
male employees were treated differently or that Laam acted in retaliation. See
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) (holding
that where the defendant in a Title VII suit proves by a preponderance of the
evidence the existence of legitimate reasons to explain its actions, the burden is on
the plaintiff to prove by a preponderance of the evidence the reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination).
Furthermore, Laam’s classroom observation does not support a hostile work
environment claim because there is no evidence it was part of an unlawful
employment practice rather than an ordinary and reasonable response to student
grievances. Nor is there evidence that the observation created or contributed to an
atmosphere so intolerable as to make Joki’s resignation a constructive discharge.
See Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (holding that
constructive discharge occurs when “working conditions [are] so intolerable that a
reasonable person would have felt compelled to resign”). Joki also argues that her
heavy workload provides support for her claims, but Defendants-Appellees
presented evidence that all instructors received the same fifteen-unit workload.
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While Joki complains that her classes were more difficult, the record does not
demonstrate any disparity in workload.
Although the district court properly granted summary judgment on Joki’s
Title VII and state law claims, it erred in granting summary judgment on her
§ 1983 equal protection claim. As the district court recognized, the limitations
period for this claim stretches back further than the limitations periods for her other
claims and encompasses two additional incidents, Verne Underwood’s “shunning”
of Joki after a meeting on September 24, 2006 and Galyn Carlile’s hand gesture at
a faculty orientation on September 25, 2006. This conduct need not be
independently actionable in order for Joki to withstand summary judgment on her
hostile work environment theory, because “[s]uch claims are based on the
cumulative effect of individual acts.” Morgan, 536 U.S. at 115 (the unlawful
employment practice at issue in hostile environment claims “cannot be said to
occur on any particular day,” but rather “occurs over a series of days or perhaps
years, and in direct contrast to discrete acts, a single act of harassment may not be
actionable on its own”).
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Viewed in context and in the light most favorable to Joki, as we are required
to do, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005), there is
a triable issue of fact regarding whether Underwood’s and Carlile’s actions were
part of a hostile work environment created by otherwise time-barred conduct and
continuing into the limitations period. Our task is to determine whether these acts
are part of preexisting actionable hostile work environment. Morgan, 536 U.S. at
120. These incidents were close in time to one another, and in light of the prior
allegedly discriminatory conduct by Underwood and Carlile, we cannot say that a
trier of fact could not find that these two acts were part of an actionable hostile
work environment. Accordingly, summary judgment on Joki’s hostile work
environment claim was improper. See id. at 117 (“Provided that an act
contributing to the [hostile work environment] claim occurs within the filing
period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.”); Kang v. U. Lim Am., Inc., 296
F.3d 810, 818 (9th Cir. 2002) (holding that to survive summary judgment, a
plaintiff is required to “demonstrate only that genuine issues of material fact exist
as to whether the acts about which [s]he complained were ‘part of the same
actionable hostile work environment practice, and if so, whether any act [fell]
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within the statutory time period.’” (quoting Morgan, 536 U.S. at 120) (second
alteration in original)).
AFFIRMED in part; REVERSED AND REMANDED in part. Each
party to bear its own costs.
FILED
Joki v. Rogue Community College, 12-35413 OCT 29 2013
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I agree with the majority that the district court properly granted summary
judgment on Joki’s Title VII and state law claims. However, I respectfully
disagree with the majority’s conclusion that there is a triable issue of fact regarding
Joki’s 42 U.S.C. § 1983 equal protection claim.
It is true that a hostile work environment claim is not time-barred “so long as
all acts which constitute the claim are part of the same unlawful employment
practice and at least one act falls within the [statute of limitations].” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). The Supreme Court has
explained that each act contributing to such a claim must be “part of the whole,”
and if the only act within filing period has “no relation” to the time-barred conduct
or is otherwise “no longer part of the same hostile environment claim,” the
employee cannot recover for the previous acts. Id. at 118. That is the situation
here.
There is no evidence, nor even any inference to be raised, that Underwood’s
snub of Joki or Carlile’s gesture towards her contributed to a hostile work
environment, because there is simply no connection between this behavior and the
otherwise time-barred, discriminatory conduct alleged by Joki. The record lacks
any indication that these incidents were motivated by gender animus as opposed to
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ordinary dislike, that they are factually connected to any of the past gender-related
conduct directed towards Joki, or that they are in any way similar to past acts of
discrimination. Underwood’s and Carlile’s actions can only be characterized as
minor insults or annoyances and are insufficient to show the continuation of a
hostile work environment created by gender discrimination. Accordingly, I would
affirm the district court’s grant of summary judgment in its entirety.