FILED
NOT FOR PUBLICATION FEB 28 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUSAN SIU, No. 10-16022
Plaintiff - Appellant, D.C. No. 1:07-cv-00386-BMK
v.
MEMORANDUM *
KANTHI DE ALWIS; THE CITY AND
COUNTY OF HONULULU; WILLIAM
W. GOODHUE; ALICIA KAMAHELE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding
Submitted February 14, 2012 **
Honolulu, Hawaii
Before: GOODWIN, TROTT, and MURGUIA, Circuit Judges.
Susan Siu appeals a summary judgment in favor of the defendants in her
action for damages, which combined claims under 42 U.S.C. § 1983, Title VII, and
*
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).
the Hawaii Whistleblower Protection Act, H.R.S. § 378-62. The district court
granted summary judgment on her § 1983 claim and her state-law claim, and
conducted a six-day jury trial on her Title VII claim, which ended in a defense
verdict. We affirm the judgment.
Siu was employed by the Medical Examiner’s Office of the City and County
of Honolulu. Her immediate supervisor was Kanthi De Alwis, the Chief Medical
Examiner and a named defendant. Relations between the two women deteriorated.
In July 2005, Siu filed a state worker’s compensation claim that alleged
“inappropriate treatment from a supervisor.” In September 2005, an Equal
Opportunity Officer encouraged Siu to take a paid administrative leave to remove
herself from an allegedly hostile work environment. She took the leave, and the
record does not show that she ever returned to work. Her hostile work
environment claims were disposed of in her jury trial.
The district court granted summary judgment on all three of Siu’s retaliation
claims because she failed to present evidence that her employer had committed an
adverse employment action. Siu argued that an ethics complaint filed by her
coworkers constituted an adverse employment action, but the district court
concluded that an employer is not liable for retaliatory harassment by an
employee’s coworkers. Recognizing that an employer could be liable if the
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employer’s encouragement or toleration of harassment could rise to the level of an
adverse employment action, the court held that Siu had not presented evidence that
her employer encouraged the complaint by fellow workers against Siu. That ruling
is supported by the record. “The non-moving party must establish the existence of
a genuine factual dispute on the basis of admissible evidence; bare allegations
without evidentiary support are insufficient to survive summary judgment.” Estate
of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033 n.14 (9th
Cir. 2008).
The record indicates that the district court went to great lengths not to
punish Siu for her lawyer’s ineptitude in presenting evidence or a coherent theory
of her claims. For example, the order denying Siu’s motion for reconsideration
stated that, “[a]lthough many of Plaintiff’s arguments are convoluted and
overlapping, the Court will address each claim upon which Plaintiff moves for
reconsideration in turn.” The district court then carefully analyzed each claim.
After trial, the district court issued an order granting in part the defendants’
bill of costs. On appeal, Siu’s opening brief does not address the costs order
except in a summary conclusion that “all post trial orders concerning costs [should]
also be overturned, and the case should be remanded for a new trial.” She may
have intended to appeal the adverse judgment and cost bill in her jury trial, but she
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failed to present any assignments of trial error. That appeal appears to have been
abandoned.
The judgment is AFFIRMED.
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