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Zetwick v. County of Yolo

United States Court of Appeals, Ninth Circuit

February 23, 2017

Victoria Zetwick, Plaintiff-Appellant,
v.
County of Yolo; Edward G. Prieto, Sheriff of Yolo County, Defendants-Appellees.

          Argued and Submitted October 18, 2016 San Francisco, California

         Appeal 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

          Manolo Olaso (argued) and Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, California, for Plaintiff-Appellant.

          John 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.

         ORDER AND OPINION

         SUMMARY[**]

         Employment Discrimination

         The 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.

         A 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.

         ORDER

         Appellant's request for publication is GRANTED. The mandate issued December 2, 2016, is recalled.

         The memorandum disposition filed November 9, 2016, is redesignated as an authored opinion by Judge Bennett with modifications.

          OPINION

          BENNETT, District Judge.

         Plaintiff 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.

         I. INTRODUCTION

         A. Factual Background

         Zetwick 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, ...


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