and Submitted October 18, 2016 San Francisco, California
from the United States District Court No.
2:12-CV-02486-TLN-AC for the Eastern District of California
Troy L. Nunley, District Court Judge, Presiding
Olaso (argued) and Johnny L. Griffin, III, Law Offices of
Johnny L. Griffin III, Sacramento, California, for
A. Whitesides (argued), Cori R. Sarno, and Carolee G.
Kilduff, Angelo Kilday & Kilduff LLP, Sacramento,
California, for Defendants-Appellees.
Before: Susan P. Graber and Mary H. Murguia, Circuit Judges,
and Mark W. Bennett, [*] District Judge.
panel filed (1) an order recalling the mandate, granting a
request for publication, and redesignating a memorandum
disposition as an authored opinion with modifications, and
(2) an opinion reversing the district court's summary
judgment in favor of the defendants in an action under Title
VII and the California Fair Employment and Housing Act.
county correctional officer alleged that the county sheriff
created a sexually hostile work environment. The panel held
that a reasonable juror could conclude that differences in
the sheriff's hugging of men and women were not, as the
defendants argued, just "genuine but innocuous
differences in the ways men and women routinely interact with
members of the same sex and the opposite sex." In
addition, the district court's contrary conclusion may
have been influenced by application of incorrect legal
standards. The panel held that hugging can create a hostile
or abusive workplace when it is unwelcome and pervasive, and
summary judgment on a hostile work environment claim is
appropriate only if the defendant's conduct was neither
severe nor pervasive enough to alter the conditions of the
plaintiff's employment. The panel remanded the case to
the district court for a trial on the merits of the
plaintiff's federal and state sexual harassment claims
and her state claim of failing to prevent sexual harassment.
request for publication is GRANTED. The mandate issued
December 2, 2016, is recalled.
memorandum disposition filed November 9, 2016, is
redesignated as an authored opinion by Judge Bennett with
BENNETT, District Judge.
Victoria Zetwick, a county correctional officer, alleges that
defendant Edward G. Prieto, the county sheriff, created a
sexually hostile work environment, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and the California Fair Employment and
Housing Act (FEHA), Cal. Gov't Code § 12900 et
seq., by, among other things, greeting her with
unwelcome hugs on more than one hundred occasions, and a kiss
at least once, during a 12-year period. The defendants,
Prieto and the County of Yolo, argue that such conduct was
not objectively severe or pervasive enough to establish a
hostile work environment, but merely innocuous, socially
acceptable conduct. The district court granted the
defendants' motion for summary judgment, and Zetwick
appeals. We reverse and remand.
began her employment with the Yolo County Sheriff's
Department in 1988 as a correctional officer. She was
promoted to sergeant in 2002. In 1999, Edward G. Prieto was
elected as the county sheriff. He was in charge of a
sheriff's office with approximately 250 employees,
including the correctional officers. The defendants
acknowledge that, after his election, Prieto introduced
himself to the corrections staff and hugged all the female
officers present, including Zetwick. Zetwick contends that,
thereafter, from 1999 to 2012, ...