Lynn Sorenson v. City of Caldwell ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNN SORENSON, No. 15-35718
Plaintiff-Appellant, D.C. No. 1:14-cv-00221-BLW
v.
MEMORANDUM*
CITY OF CALDWELL, a political
subdivision of the State of Idaho and CITY
OF CALDWELL DEPARTMENT OF
PARKS AND RECREATION,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted June 15, 2017
Seattle, Washington
Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.
Lynn Sorenson appeals the district court’s order granting summary judgment
in favor of defendants City of Caldwell and City of Caldwell Department of Parks
and Recreation (collectively, Caldwell), on his claims for constructive discharge
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and retaliatory discharge under the Age Discrimination in Employment Act
(ADEA) and the Idaho Human Rights Act (IHRA).1 We have jurisdiction under 28
U.S.C. § 1291 and “review de novo a district court’s grant of summary judgment.”
Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999). We affirm in part,
reverse in part, and remand.
1. The district court erred by granting summary judgment to Caldwell on
Sorenson’s constructive discharge claim. Sorenson presented evidence that: (1) he
was subjected to years of age-related harassment by a supervisor, Ken Wheeler; (2)
Caldwell officials did not act upon Sorenson’s regular complaints about the
harassment; (3) Wheeler violated a directive not to communicate directly with
Parks employees like Sorenson, by yelling age-related comments and striking
another coworker in front of Sorenson; (4) Caldwell did not terminate Wheeler
after this incident, even though a Caldwell official’s comments acknowledged that
Wheeler might act violently again; and (5) Sorenson resigned one month after
reporting this incident and four days after he learned Wheeler would still be
working near Sorenson and in a similar position to the one Wheeler held when he
first began harassing Sorenson. Taking these facts in the light most favorable to
1
The respective analyses of Sorenson’s constructive discharge and
retaliatory discharge claims are the same under the ADEA and the IHRA. See
Hatheway v. Bd. of Regents of Univ. of Idaho, 310 P.3d 315, 323 (Idaho 2013).
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Sorenson, we conclude that there are triable issues of fact related to whether
Sorenson’s “working conditions [became] so intolerable that a reasonable person
in the employee’s position would have felt compelled to resign.”2 See Pa. State
Police v. Suders, 542 U.S. 129, 141 (2004); Nolan v. Cleland, 686 F.2d 806, 813
(9th Cir. 1982) (“Historic discrimination over a number of years [may] provide[]
the necessary aggravating factor . . . to justify a constructive discharge.”). The
constructive discharge inquiry “is normally a factual question for the jury.”
Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996) (citation
omitted). We therefore reverse and remand the district court’s order granting
summary judgment to Caldwell on Sorenson’s constructive discharge claim.
2. The district court did not err by granting summary judgment to Caldwell on
Sorenson’s retaliatory discharge claim, because he did not raise a triable issue of
fact regarding a causal link between his involvement in a protected activity and an
adverse employment action. See Brooks v. City of San Mateo, 229 F.3d 917, 928
(9th Cir. 2000) (concluding a plaintiff must show the following for a prima facie
2
The district court relied on Montero, 192 F.3d at 861, but that case is
distinguishable. Here, Sorenson left only one month after the last incident of
allegedly harassing behavior and four days after he learned that Wheeler would not
be terminated, and Sorenson testified that he had complained for years to Caldwell
officials about Wheeler, to no avail. After witnessing Wheeler assault another
employee without being terminated, a reasonable co-worker in Sorenson’s position
might have found the working environment intolerable.
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case of retaliation: “(1) involvement in a protected activity, (2) an adverse
employment action and (3) a causal link between the two”). Sorenson did not
allege facts showing that his age-discrimination complaint was a but-for cause of
any adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.
Ct. 2517, 2534 (2013) (holding the third element of the test requires a plaintiff to
show “that his or her protected activity was a but-for cause of the alleged adverse
action by the employer.”); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1189 (9th
Cir. 2005), amended on denial of reh’g, 436 F.3d 1050 (9th Cir. 2006) (concluding
that “‘snide remarks’ and threats, such as ‘your number’s up’ and ‘don’t forget
who got you where you are,’” are not sufficiently serious to constitute retaliatory
action); see also Brooks, 229 F.3d at 928 (“[O]nly non-trivial employment actions
that would deter reasonable employees from complaining about Title VII violations
will constitute actionable retaliation.”). We affirm the district court’s order
granting summary judgment to Caldwell on Sorenson’s retaliatory discharge claim.
Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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