Sillars v. Nevada Ex Rel. Its Department of Employment, Rehabilitation, & Training, Employment Security Division

FILED
NOT FOR PUBLICATION JUN 22 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ELIZABETH RAFFATH SILLARS, an Nos. 08-17502
individual,

Plaintiff-Appellant, D.C. No. 3:07-cv-00041-LRH-
RAM
v.

STATE OF NEVADA, EX REL., ITS MEMORANDUM *
DEPARTMENT OF EMPLOYMENT,
REHABILITATION, AND TRAINING,
EMPLOYMENT SECURITY DIVISION;
et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding

Submitted June 13, 2010 **
San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and RIPPLE, Senior United States

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

1
Circuit Judge.***

Elizabeth Raffath Sillars brought this action under Title VII and 42 U.S.C. §

1983, alleging that she had been subjected to sexual harassment in the workplace

by a coworker. She contends that her employer did nothing to remedy the

harassment and retaliated against her when she filed an internal complaint. The

district court entered summary judgment for the defendants and Sillars appeals.

We affirm.

Sillars’s evidence that she was subjected to sexual harassment is insufficient

to withstand summary judgment. The treatment that Sillars faced in her workplace

did not amount to actionable harassment. To give rise to liability under Title VII,

harassment must be “sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). That

is, the harassment must “create an objectively hostile or abusive work

environment--an environment that a reasonable person would find hostile or

abusive.” Id. We agree with the district court that the conduct in which Sillars

***
The Honorable Kenneth F. Ripple, Senior Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.

2
describes her coworker as engaging is, as a matter of law, insufficiently severe or

pervasive to permit a jury to find in favor of Sillars.

The district court also properly entered summary judgment on Sillars’s

retaliation claims. A plaintiff sets forth a prima facie case of retaliation under Title

VII or § 1983 by demonstrating that (1) she engaged in an activity protected either

by Title VII or by the First Amendment, respectively; (2) her employer subjected

her to an adverse employment action; and (3) a causal link exists between the

protected activity and the adverse employment action. Thomas v. City of

Beaverton, 379 F.3d 802, 811 (9th Cir. 2004) (Title VII); Coszalter v. City of

Salem, 320 F.3d 968, 973 (9th Cir. 2003) (First Amendment). For particular

treatment at work to amount to an adverse employment action, “a plaintiff must

show that a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)

(internal quotation marks omitted).

Sillars claims that she suffered an adverse employment action when she was

3
moved to a different “team” to separate her from the coworker whose conduct she

had reported. Sillars is correct that, under the law of this circuit, a lateral transfer

may constitute an adverse employment action. See Ray v. Henderson, 217 F.3d

1234, 1241, 1243 (9th Cir. 2004); Yartzoff v. Thomas, 809 F.2d 1371, 1375-76 (9th

Cir. 1987); St. John v. Employment Dev. Dep’t, 642 F.2d 273, 274 (9th Cir. 1981) .

However, as the Supreme Court recently has noted, “[w]hether a particular

reassignment is materially adverse depends upon the circumstances of the

particular case, and should be judged from the perspective of a reasonable person

in the plaintiff’s position, considering all the circumstances.” White, 548 U.S. at

71 (internal quotation marks omitted). Sillars has presented no evidence that the

position to which she was moved differed in any material way from the position

she occupied prior to her complaints, either with respect to her responsibilities or

the conditions under which she performed them. She admits that persons in her

position are transferred to new teams as a matter of routine and that another

employee uninvolved in the conflict was transferred with her. Sillars also contends

that she generally was treated less kindly following her complaint, and that this

treatment should be considered an adverse employment action. No reasonable

factfinder could conclude that Sillars suffered any conditions that would amount to

a materially adverse action. See id. at 68 (“An employee’s decision to report

4
discriminatory behavior cannot immunize that employee from those petty slights or

minor annoyances that often take place at work and that all employees

experience.”).

Sillars also claims that she was constructively discharged. Given our

resolution of her harassment claim and her retaliation claim, we cannot say that the

conditions of Sillars’s employment were so intolerable that she was constructively

discharged.

AFFIRMED.