NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA FULLER, No. 14-36110
Plaintiff-Appellant, D.C. No. 1:13-cv-00035-JLQ
v.
MEMORANDUM *
IDAHO DEPARTMENT OF
CORRECTIONS; BRENT REINKE;
HENRY ATENCIO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted March 6, 2017
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Cynthia Fuller was raped by an Idaho Department of Corrections (“IDOC”)
co-worker, Herbt Cruz, whom she had been dating. She sued the IDOC and several
supervisors, alleging violations of Title VII of the Civil Rights Act of 1964, the
Equal Protection Clause, and Idaho tort law. The district court granted summary
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
judgment to the defendants on all claims. In an opinion filed today, we vacate that
summary judgment insofar as it involved Fuller’s claim that a hostile work
environment was caused by the IDOC’s actions after she was raped. We affirm the
summary judgment with respect to Fuller’s other claims.
1. Fuller argues that her rapes created a hostile work environment. But, the
rapes occurred outside the workplace, and after the IDOC had placed Cruz on leave
because of a criminal investigation into other non-workplace conduct. Because
Fuller does not claim that Cruz sexually harassed her in the workplace or a related
environment, or that he returned to work after the rapes, the district court properly
granted summary judgment to the IDOC on this claim. See Fuller v. City of Oakland,
47 F.3d 1522, 1527 (9th Cir. 1995) (requiring workplace conduct “sufficiently
severe or pervasive to alter the conditions of the victim’s employment” (internal
quotation marks omitted)). 1
2. Fuller claims that she was constructively discharged because IDOC
1
The Ninth Circuit cases Fuller cites for the proposition that off-site conduct
can contribute to a hostile work environment involve partial workplace conduct or
conduct related to job performance. See Galdamez v. Potter, 415 F.3d 1015, 1023-
24 (9th Cir. 2005); Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th
Cir. 2002); Fuller, 47 F.3d at 1525-28. Similarly, the out-of-circuit cases that she
cites all involve environments akin to the workplace, where the employer controlled
how employees spend their off-duty time. See Lapka v. Chertoff, 517 F.3d 974, 983
(7th Cir. 2008); Doe v. Oberweis Dairy, 456 F.3d 704, 715-16 (7th Cir. 2006); Ferris
v. Delta Air Lines, Inc., 277 F.3d 128, 134-35 (2d Cir. 2001); Parrish v. Sollecito,
249 F. Supp. 2d 342, 345-46, 352 (S.D.N.Y. 2003).
2
supervisors declined her request to inform the staff about a sealed protective order
she had obtained against Cruz. But, even putting aside the sealed nature of the order,
the IDOC had already removed Cruz from the workplace and responded to Fuller’s
request by informing staff that he was not permitted on the premises, directing them
to call a supervisor if he should appear. These actions did not create working
conditions “so intolerable that a reasonable person in [Fuller’s] position would have
felt compelled to resign.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)
(internal quotation marks omitted).
3. Fuller argues that she was denied paid administrative leave because of her
gender. But, it is undisputed that, for budgetary reasons, the IDOC has not approved
any request for paid administrative leave since 2008 under an administrative rule
applicable to “unusual” situations. Fuller has not demonstrated that the IDOC’s
continued refusal to approve leave for her “unusual situation”—as opposed to leave
granted to other employees under provisions governing investigations or disciplinary
actions—was on account of her gender. See Hishon v. King & Spalding, 467 U.S.
69, 75-76 (1984) (requiring that denial of a “privilege” of employment be
discriminatory to violate Title VII); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,
1156-59 (9th Cir. 2010) (requiring evidence that similarly situated males were
3
treated more favorably). 2
4. Fuller argues that her supervisor’s actions after she reported her rapes
amounted to negligent infliction of emotional distress under Idaho law. Because she
alleges only “a series of ongoing, discrete events or conduct,” rather than a
“continuing tort,” any claim arising before November 16, 2011, is time-barred.
Cobbley v. City of Challis, 59 P.3d 959, 962-64 (Idaho 2002) (citing IDAHO CODE §
6-905). And, the district court properly concluded that the actions she alleges that
occurred during the limitations period were not unreasonable. Frogley v. Meridian
Joint Sch. Dist. No. 2, 314 P.3d 613, 624 (Idaho 2013).
AFFIRMED.
2
Fuller’s equal protection claim against her supervisors fails for the same
reasons. See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th
Cir. 2001) (requiring proof of gender discrimination for equal protection claim under
42 U.S.C. § 1983).
4