FILED
NOT FOR PUBLICATION FEB 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRISELL ALVES, No. 12-16903
Plaintiff - Appellant, D.C. No. 2:11-cv-00509-FJM
v.
MEMORANDUM*
EMERALD CORRECTIONAL
MANAGEMENT, LLC,
Defendants - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Court Judge, Presiding
Argued and Submitted November 20, 2014
San Francisco, California
Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**
1. Plaintiff Grisell Alves (“Alves”) did not submit evidence from which a
reasonable jury could infer that Emerald Correctional Management, LLC (“Emerald”)
* This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
acted with a retaliatory motive against her when she complained of sexual harassment
by terminating her employment.
The evidence Alves relies on to prove that Emerald’s stated reason for firing her
was pretext does not suffice to avoid summary judgment. Emerald produced evidence
to support a finding that it fired Alves for a legitimate non-retaliatory reason–sexually
harassing two of her coworkers. Once Emerald put forth a legitimate, non-retaliatory
explanation for Alves’s termination, the burden shifted to Alves to show that this
explanation was pretext for discrimination. See Miller v. Fairchild Indus., Inc., 797
F.2d 727, 732 (9th Cir. 1986). Alves produced several arguments in support of her
claim that the investigation that led to her firing was done in bad faith, and thus
pretextual, e.g., she was not informed of the sexual-harassment allegations against her,
Emerald unreasonably discredited her version of events, and Emerald instructed an
employee to file a complaint against her. However, none of these arguments are
supported by the evidence in the record.
Further, Emerald’s investigation was otherwise in accordance with the
requirements for good faith under the framework articulated in Swenson v. Potter, 271
F.3d 1184, 1192 (9th Cir. 2001). Emerald investigated Alves’s complaint soon after
she filed it. Emerald also imposed disciplinary sanctions on those found to have
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violated company policy. Finally, these sanctions were proportionate to the
seriousness of the offenses.
Thus, the district court did not err in granting summary judgment for Emerald
on the issue of retaliatory termination.
2. The district court also did not err in granting summary judgment for Emerald
on the issue of hostile work environment. Alves did not submit evidence from which
a reasonable jury could conclude that Emerald maintained a hostile work environment.
In order to hold Emerald liable for co-worker harassment, Alves was required to
demonstrate that Emerald (1) knew of or had reason to know of the harassment she
complained of, and (2) failed to take steps reasonably calculated to end the
harassment. See Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). While
there is some evidence in the record to suggest that management knew that some
sexual profanity and harassment existed at Emerald, the record evidence is not
sufficient to support a finding that management knew that sexual harassment and
misconduct was so pervasive in the particular environment in which Alves worked
such as to create a hostile work environment. Record evidence indicating that, when
responding to Alves’s complaint, a member of Emerald management stated that it
“[s]ounds like some of the same individuals from previous similar investigations,”
is insufficient. This statement does not demonstrate that these investigations were
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conducted in response to behavior or harassment that Alves witnessed or experienced.
Thus, it cannot show that Emerald had knowledge of the harassment at issue. Further,
deposition testimony of an Emerald employee who stated that sexual profanity was
common at Emerald, is too general as to be probative and also does not demonstrate
that such profanity was witnessed by Alves. Moreover, it does not sufficiently
establish that Emerald supervisors or managers witnessed or had reason to witness
such profanity in the context of which Alves complains. Finally, Alves presents
evidence that, in May 2010, she filed a complaint alleging sexual harassment against
an Emerald employee, several months before she complained of the harassment at
issue. However, this May 2010 complaint does not demonstrate that Emerald knew
or had reason to know of harassment that was pervasive enough to support a hostile
work environment claim. This court holds that these statements and occurrences do
not, alone or in combination, establish that Emerald had constructive or actual
knowledge of the harassment complained of by Alves.
Accordingly, we affirm the district court’s order granting Emerald’s motion
for summary judgment.
AFFIRMED.
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