Eeoc v. Prospect Airport ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY  No. 07-17221
COMMISSION,
Plaintiff-Appellant, D.C. No.
v.  CV-05-01125-
KJD/GWF
PROSPECT AIRPORT SERVICES, INC,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
April 16, 2009—San Francisco, California
Filed September 3, 2010
Before: Andrew J. Kleinfeld, Milan D. Smith, Jr., and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Kleinfeld
13377
13380 EEOC v. PROSPECT AIRPORT SERVICES
COUNSEL
Dori K. Bernstein, U.S. Equal Opportunity Commission,
Office of General Counsel, Washington, D.C., for the appel-
lant.
Thomas W. Murphy (argued), Lauren Blair (briefed), Peder-
sen & Houpt, Chicago, Illinois, for the appellee.
EEOC v. PROSPECT AIRPORT SERVICES 13381
OPINION
KLEINFELD, Circuit Judge:
This is a sexual harassment case in which a male employee
was the victim of a female co-worker.
I. Facts.
The district court granted summary judgment against the
plaintiff, so we recite the facts in accord with the cognizable
evidence presented by the plaintiff, to determine whether, if
a jury accepted his account, he could recover.1 We review
summary judgment de novo.2
The plaintiff, Rudolpho Lamas, and the alleged harasser,
Sylvia Munoz, worked for Prospect Airport Services, Inc.
They worked at McCarran International Airport in Las Vegas
helping passengers who needed wheelchairs. Lamas was pro-
moted from “passenger service assistant” to “lead passenger
service assistant.”3 His wife died September 17, 2001, so at
the times relevant to this case he was a recent widower.4 He
started working for Prospect the next spring, in April 2002.5
That fall, a married co-worker, Sylvia Munoz, began a
series of rejected sexual overtures. Although Lamas had never
asked her out or otherwise made overtures to her, she handed
him love notes and made remarks to him that “hurt” him and
were “embarrassing.”6 “And she was insistent and it bothered
1
See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1053 (9th Cir.
2007).
2
Id.3
Lamas Dep. at 14.
4
ER Vol 2 at 40, 42; Lamas Dep. at 6, 26.
5
Lamas Dep. at 14.
6
ER Vol. 2 at 42; Lamas Dep. at 25.
13382 EEOC v. PROSPECT AIRPORT SERVICES
me.”7 When he asked her why she thought he was interested,
she said she had heard from another coworker that he missed
coming home to a family. The context had been that he was
still in mourning about his wife, but Munoz thought it meant
he was looking for female companionship. In his deposition,
he cried as he recounted this.8 She said that he had once men-
tioned as they passed in a Jetway that he was single, she had
asked her husband if that meant he was flirting with her, and
her husband said that it did.9 She subsequently wrote and
hand-delivered a note to him that he interpreted as a “flirta-
tious come-on.”10 It was the first of three or four notes.
The first note, which Munoz handed to Lamas around mid-
to-late November, said she was “turned on” and wanted to
“go out.”11 Lamas interpreted it as a “basic flirtatious come-
on” and an “unwanted flirtatious advance” and told her he
was not interested.12 She asked “why not?” and he replied that
he just was not interested.13
Lamas was bothered by the note, so he informed their boss,
Assistant General Manager Patrick O’Neill.14 O’Neill advised
Lamas to tell Munoz that the romantic interest was not mutual
and that Lamas should let Prospect’s managers know if she
kept it up, so that they could take care of it.15 Lamas did not
want to make a complaint against Munoz, he just wanted the
overtures to stop.16
7
ER Vol. 2 at 42; Lamas Dep. at 25.
8
ER Vol. 2 at 42; Lamas Dep. at 25-26.
9
ER Vol. 2 at 42-43; Lamas Dep. at 26-27.
10
ER Vol 2 at 44; Lamas Dep. at 32.
11
ER Vol. 2 at 44; Lamas Dep. at 32, 34.
12
ER Vol. 2 at 44; Lamas Dep. at 32 -34.
13
ER Vol. 2 at 44; Lamas Dep. at 33-34.
14
ER Vol. 2 at 44; Lamas Dep. at 31-32.
15
ER Vol. 2 at 44; Lamas Dep. at 32.
16
Lamas Dep. at 155-58.
EEOC v. PROSPECT AIRPORT SERVICES 13383
Taking O’Neill’s advice, Lamas told Munoz:
I’m not interested. You’re married. And I don’t want
to get involved in something like that. And, you
know, I’m just not looking for any kind of thing like
that right now. So I wouldn’t be interested in it. But,
you know, I read the note. . . . I read it. But I’m not
interested.17
Lamas did not feel his work environment had become abusive
at that point, he just did not want to have a relationship with
her.18
But she did not stop. A few days later, Munoz handed
Lamas a second note saying she was serious and he should
give her a chance.19 He still did not feel his work environment
had become abusive, he just did not want a relationship with
her and wanted her to stop. He read and discarded the note.20
But she did not stop. Munoz approached Lamas in the park-
ing lot and handed him a picture of herself, “a head and
shoulders-type shot with a pressing together of the breasts
. . . . no clothing on that portion . . . . the cleavage of the
breasts sort of together.”21 He gave the picture back to her,
and was “irritated. She was bothering me, pestering me.”22 He
told her “I’ve told you already, I’m not interested.”23 Lamas
told a friend that Munoz’s advances were “weight on my
shoulders,” and “just terrible.”24
17
ER Vol. 2 at 44; Lamas Dep. at 33.
18
Lamas Dep. at 38.
19
Lamas Dep. at 36-38.
20
Lamas Dep. at 38.
21
ER Vol. 2 at 49; Lamas Dep. at 60-62.
22
ER Vol. 2 at 50; Lamas Dep. at 63-64.
23
ER Vol. 2 at 50; Lamas Dep. at 64, 66.
24
ER Vol. 2 at 50; Lamas Dep. at 65.
13384 EEOC v. PROSPECT AIRPORT SERVICES
Lamas then went to his immediate boss, Ronda Thompson,
about the problem. He “wanted her to follow the company
procedure to put a stop to it.”25 He told his boss that Munoz
“was making these unwanted advances,” things were “out of
hand,” and the harassment was hurtful.26 Thompson told him
that she would talk to Munoz and would inform Prospect’s
general manager, Dennis Mitchell, of the problem.27 But
Ronda Thompson did not do either, and Munoz kept it up.
Munoz gave Lamas a third note, and at this point he felt his
work environment had become abusive.28 This time Munoz
wrote Lamas that she was having “crazy dreams about us in
the bathtub” and boasted that she gave a “very good bath
wash and body massage.”29 Lest there be any doubt, Munoz
said “I do want you sexually and romantically”:
Dear R.,
I guess this is the only form off [sic] communica-
tion we have. I try to call you one night about three
weeks ago when I was thinking of you. They said
that you moved! I’ve been thinking of you a lot
lately. I’ve been having crazy dreams about us in the
bath tub yeah in the bath tub. Must be my Aunt’s
cooking. (Ha, Ha). I’ve been wanting to ask you, but
you have been under a lot of stress with southwest
and work. It is time to unwind and be stress free. I
give out very good bath wash and body massage. It
sounds a little crazy but everyone has a little crazi-
ness in them! I would love to see you on and off.
Yes, I’ve been thinking about you more ways then
25
ER Vol. 2 at 45; Lamas Dep. at 39, 41.
26
ER Vol. 2 at 45; Lamas Dep. at 40, 46.
27
ER Vol. 2 at 44, 46; Lamas Dep. at 40, 47.
28
Lamas Dep. at 38.
29
ER Vol. 2 at 62.
EEOC v. PROSPECT AIRPORT SERVICES 13385
[sic] one. It seems to me I cannot get you off my
mind no matter how hard I try! I hope you will con-
sider? I’ll take care of you, you take care of me!
Please let me know soon not later! Seriously, I do
want you sexually and romantically!
Con amor (with love), S.30
In January or February, after several months of Munoz’s
pressure and after he had received the third note, Lamas
talked to the supervisor next up the chain, Dennis Mitchell.31
By now Munoz had recruited co-workers who were telling
Lamas that Munoz loved him and wanted him, and he was
telling the messengers that the interest was not mutual.32
“[C]o-workers were now saying things, and I was starting to
become embarrassed.”33 He suspected (correctly) that his
boss, Ronda Thompson, had not talked to Munoz despite tell-
ing him that she would, so Lamas called Prospect’s manager
at the airport, Dennis Mitchell.34 Lamas gave Mitchell the
note and asked him to tell Munoz to stop sending letters and
“making advances.”35 In response, Mitchell told Lamas that he
“did not want to get involved in personal matters.”36 Lamas
did not file a written complaint against Munoz (the compa-
ny’s sexual harassment policy did not require a written com-
plaint),37 but asked that Munoz be made to stop.38
30
ER Vol. 2 at 62.
31
ER Vol. 2 at 47; Lamas Dep. at 51-53.
32
ER Vol. 2 at 46; Lamas Dep. at 50-51.
33
ER Vol. 2 at 47; Lamas Dep. at 53.
34
ER Vol. 2 at 48; Lamas Dep. at 55; ER Vol. 2 at 70-71, 101, 103, 106;
Mitchell Dep. at 79-80, 85-86.
35
ER Vol. 2 at 99; Mitchell Dep. at 70.
36
ER Vol. 2 at 99; Mitchell Dep. at 70.
37
ER Vol. 2 at 68.
38
ER Vol. 2 at 59; Lamas Dep. at 125-26.
13386 EEOC v. PROSPECT AIRPORT SERVICES
Mitchell agreed to speak to Munoz as “a favor.”39 He
acknowledged that Munoz’s “sloppy love letter” was a viola-
tion of Prospect’s sexual harassment policy.40 A few days later
Mitchell ran into Munoz and met with her and Ronda Thomp-
son.41 He told Munoz that he knew she was “pursuing a
coworker . . . and the [ ] coworker wanted these advances to
stop.”42 Munoz nodded.43 He told her that “if I hear any more
—if this is brought up again and I hear that [ ] it is continuing,
I would have to take action.”44 This was in late January or
early February of 2003.45
But Munoz did not stop. Every time Lamas walked by her
at work, there was “something, some gesture some ‘Hey, hey’
wording or ‘Whew, whew,’ ” licking her lips suggestively,
and asking if Lamas “want[ed] to have some fun.”46 Munoz
performed “blow job imitations.”47 Lamas “hated it” because
“[i]t was just constantly something,” “[i]t was like pressure,”
and offensive.48 Instead of occasional approaches, she now
harassed Lamas every day.49 Munoz also had co-workers
deliver messages to Lamas about going on dates, that Munoz
“was going to get” Lamas “no matter what,” and other “hurt-
ful, embarrassing things” that caused Lamas to feel “constant
pressure” at work.50 This continued through the spring of
2003.
39
ER Vol. 2 at 99; Mitchell Dep. at 70.
40
ER Vol. 2 at 100; Mitchell Dep. at 73.
41
ER Vol. 2 at 100-01; Mitchell Dep. at 76-77.
42
ER Vol. 2 at 101; Mitchell Dep. at 78.
43
ER Vol. 2 at 101; Mitchell Dep. at 78.
44
ER Vol. 2 at 103; Mitchell Dep. at 86.
45
ER Vol. 2 at 50; Lamas Dep. at 63.
46
ER Vol. 2 at 51, 56; Lamas Dep. at 67, 70, 113.
47
ER Vol. 2 at 56; Lamas Dep. at 113.
48
ER Vol. 2 at 51, Lamas Dep. at 67.
49
ER Vol. 2 at 51; Lamas Dep. at 67-68.
50
ER Vol. 2 at 60; Lamas Dep. at 167.
EEOC v. PROSPECT AIRPORT SERVICES 13387
At about this time, co-workers began to speculate that
Lamas was a homosexual.51 In addition to Munoz’s remarks
and gestures, Lamas had to face co-workers’ remarks to the
effect that he was gay. Lamas felt helpless and was crying.52
He consulted a psychologist about his distress.53 But things
kept getting worse. He complained to four different Prospect
management officials about Munoz’s harassment, but nothing
was done to stop it.54 Patrick O’Neill, Prospect’s assistant
general manager, said the harassment “was a joke” and that
Lamas should “walk around singing to yourself . . . I’m too
sexy for my shirt.”55 Lamas did not feel a song in his heart.
He felt “bound and gagged” because “[n]obody listened” and
Prospect “just wouldn’t do anything.”56
Meanwhile, Munoz kept it up. Munoz approached Lamas
in May 2003 when he was helping elderly passengers, a gen-
tleman and his wife, with a wheelchair for the husband.57 Con-
tinuing more than six months of pressure to have sex, Munoz
asked Lamas to join her for a date, and said she had been
lacking in sexual gratification because she and her husband
had separated.58 Munoz’s comments embarrassed the elderly
man’s wife as well as Lamas.59
Lamas had previously done well on the job. He had been
promoted to lead passenger service assistant.60 Munoz’s refer-
ence to Lamas being “under a lot of stress with southwest and
51
Lamas Dep. at 167.
52
Lamas Dep. at 167-68.
53
Lamas Dep. at 168.
54
ER Vol. 2 at 52-54; Lamas Dep. at 71, 87, 89.
55
ER Vol. 2 at 53-54, Lamas Dep. at 86-87.
56
ER Vol. 2 at 60; Lamas Dep. at 167, 168.
57
ER Vol. 2 at 55-56; Lamas Dep. at 110-113.
58
ER Vol. 2 at 55-56; Lamas Dep. at 110-113.
59
ER Vol. 2 at 55-56; Lamas Dep. at 110-113; ER Vol. 2 at 67.
60
ER Vol. 2 at 21.
13388 EEOC v. PROSPECT AIRPORT SERVICES
work” in her I-give-good-bath-wash letter61 referred to one of
Lamas’s job assignments. Southwest Airlines had threatened
to end Prospect’s contract, so the Prospect managers assigned
Lamas to work the Southwest concourse in an attempt to save
it, “because they believed I was the best performer.”62 But,
according to Lamas, the psychological distress because of the
“constant pressure” from Munoz made his performance suf-
fer. When it was a bad day, the customers would pick up on
it, “[s]o in that sense it interfered with my ability to perform
the job up to the standard I wanted to perform the job.”63 In
March, after four or five months of harassment and no protec-
tion from management, Prospect demoted Lamas because of
“complaints about [ ] job performance and negative attitude.”64
Prospect fired Lamas in June, for failing to provide wheel
chair assistance to a passenger, poor attitude, and “lack of
willingness to provide quality customer service.”65 Lamas
attributes his diminished work performance to the stress
caused by more than half a year of harassment.66
Prospect has a sexual harassment policy which both Lamas
and Munoz signed. The policy specifies, under the heading
“Complaint Procedure,” that “[a]ny incident, which may be a
violation of this policy, should be promptly reported to your
supervisor.”67 There was no requirement that the report be in
writing or that it seek any discipline against the person doing
the harassing. The policy says Prospect “will investigate each
complaint in a prompt and proper fashion” and that com-
plaints will be kept confidential to the extent possible.68 Pros-
61
ER Vol. 2 at 62.
62
ER Vol. 2 at 46; Lamas Dep. at 49..
63
ER Vol. 2 at 55; Lamas Dep. at 115-116.
64
ER Vol. 2 at 86.
65
ER Vol. 2 at 87.
66
ER Vol. 2 at 55; Lamas Dep. at 115-116; Lamas Dep. at 149.
67
ER Vol. 2 at 68.
68
ER Vol. 2 at 68.
EEOC v. PROSPECT AIRPORT SERVICES 13389
pect’s human resources manager testified that this means an
“immediate review” and investigation.69 Munoz was not disci-
plined (even though men had been fired under the policy, in
one case for sexually harassing a woman,70 in another for
looking at pornography on the job).71 Lamas filed an EEOC
complaint. The EEOC determined that Lamas was subjected
to a sexually hostile work environment. The EEOC, not
Lamas, is the plaintiff in this lawsuit.
The district court granted Prospect’s motion for summary
judgment.72 The district court concluded that as a matter of
law Munoz’s conduct was not severe and pervasive enough to
amount to sexual harassment objectively for a reasonable
man, noting that “Lamas admits that most men in his circum-
stances would have ‘welcomed’ the behavior he alleged was
discriminatory, but that due to his Christian background he
was ‘embarrassed.’ ”73 The court emphasized that Lamas had
never filed a written complaint, and management had told
Munoz that her behavior was inappropriate.74
The EEOC appeals.
II. Analysis.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a grant of summary judgment de novo.75 All reason-
able inferences “upon which a reasonable jury might return a
verdict” must be drawn in favor of the nonmoving party.76
69
Claypool Dep. at 55.
70
Claypool Dep. at 58.
71
Mitchell Dep. at 47-48.
72
ER Vol. 1 at 13.
73
ER Vol. 1 at 10.
74
ER Vol. 1 at 11-12.
75
Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1053 (9th Cir. 2007).
76
Id.13390 EEOC v. PROSPECT AIRPORT SERVICES
Summary judgment may only be granted where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.
[1] Title VII of the 1964 Civil Rights Act prohibits dis-
crimination on the basis of sex, which includes sexual harass-
ment in the form of a hostile work environment.77 Both sexes
are protected from discrimination.78 To survive summary
judgment, the respondent must submit cognizable evidence
sufficient to establish a jury question on whether the victim
(1) was subjected to verbal or physical conduct of a sexual
nature, (2) that was unwelcome; and (3) that was sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.79
The respondent must present sufficient evidence for a jury
question on whether the work environment was “both objec-
tively and subjectively offensive, one that a reasonable person
would find hostile and one that the victim in fact did perceive
to be so.”80
1. Conduct of a Sexual Nature
[2] Whether Lamas was subjected to “verbal or physical
conduct of a sexual nature”81 is an easy question. Munoz
77
42 U.S.C. § 2000e-2(a)(1); Meritor Sav. Bank, FSB, v. Vinson, 477
U.S. 57 (1986). The only claim before this court is the EEOC’s hostile
work environment claim.
78
Craig v. Boren, 429 U.S. 190, 210 (1976) (invalidating a state law that
created different legal drinking ages for men and women as unconstitu-
tionally discriminatory); Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 78 (1998) (“Title VII’s prohibition of discrimination because of
sex protects men as well as women. . . .”) (internal quotation marks and
citation omitted).
79
Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995); see
also M & O Agencies, 496 F.3d at 1055.
80
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871-72
(9th Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
787 (1998)).
81
Fuller, 47 F.3d at 1527.
EEOC v. PROSPECT AIRPORT SERVICES 13391
propositioned him for sex. Munoz wrote to him that she
dreamed of him in a bath, that she gave good “body wash,”
and that she wanted him “sexually.” She performed gestures
simulating fellatio, and gave him a photograph of herself
emphasizing her breasts and possibly without clothes on. Her
proposition was for sex, not a cup of coffee together. After
she recruited coworkers to pressure Lamas, they mocked him
by suggesting that he was homosexual.
2. Welcomeness.
[3] It cannot be assumed that because a man receives sex-
ual advances from a woman that those advances are welcome.
Lamas suggested this might be true of other men (the district
court decision noted that Lamas “admits that most men in his
circumstances would have ‘welcomed’ ” her advances). But
that is a stereotype and welcomeness is inherently subjective,82
(since the interest two individuals might have in a romantic
relationship is inherently individual to them), so it does not
matter to welcomeness whether other men might have wel-
comed Munoz’s sexual propositions.
It would not make sense to try to treat welcomeness as
objective, because whether one person welcomes another’s
sexual proposition depends on the invitee’s individual circum-
stances and feelings. Title VII is not a beauty contest, and
even if Munoz looks like Marilyn Monroe, Lamas might not
want to have sex with her, for all sorts of possible reasons. He
might feel that fornication is wrong, and that adultery is
wrong as is supported by his remark about being a Christian.
He might fear her husband. He might fear a sexual harassment
complaint or other accusation if her feelings about him
changed. He might fear complication in his workday. He
might fear that his preoccupation with his deceased wife
would take any pleasure out of it. He might just not be
82
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 873 (9th
Cir. 2001).
13392 EEOC v. PROSPECT AIRPORT SERVICES
attracted to her. He may fear eighteen years of child support
payments. He might feel that something was mentally off
about a woman that sexually aggressive toward him. Some
men might feel that chivalry obligates a man to say yes, but
the law does not.
That is not to say that there is nothing objective about wel-
comeness. For the conduct to be unwelcome for purposes of
employer’s liability for not stopping it,83 unwelcomeness has
to be communicated. Sometimes the past conduct of the indi-
viduals and the surrounding circumstances may suggest that
conduct claimed to be unwelcome was merely part of a con-
tinuing course of conduct that had been welcomed warmly
until some promotion was denied or employment was termi-
nated. That is a credibility issue.84
[4] But here Lamas unquestionably established a genuine
issue of fact regarding whether the conduct was welcome.
Lamas swore under oath that it was not. It made him cry, both
at the time and repeatedly in the deposition. He sought medi-
cal services to deal with the anxiety it caused him. Lamas had
no prior romantic or sexual relationship with Munoz. He did
not approach her. He told her expressly and plainly that he did
not want a relationship with her. He explained his troubled
response plausibly, as stemming from his Christian beliefs
and his recent widowhood. Some recipients of sexual
advances doubtless have difficulty coming up with a tactful
way to refuse them without damaging their ability to get along
at work, so unwelcomeness may in some cases be unclear.
Here, though, Lamas repeatedly told Munoz “I’m not interest-
ed” and that he was “just not looking for any kind of thing
like that” yet she kept making the sexual overtures she knew
were unwelcome.
83
See Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000).
84
See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).
EEOC v. PROSPECT AIRPORT SERVICES 13393
3. Severe or pervasive.
Title VII is not a “general civility code.”85 A violation is not
established merely by evidence showing “sporadic use of abu-
sive language, gender-related jokes, and occasional teasing.”86
A violation is established when the unwelcome sexual con-
duct is “sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working envi-
ronment.”87 Whether a working environment is objectively
“abusive” ”can be determined only by looking at all the cir-
cumstances,” which “may include the frequency of the dis-
criminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance. . . . [N]o single factor is required.”88 The “severe
or pervasive” element has both objective and subjective com-
ponents. We consider not only the feelings of the actual vic-
tim, but also “assume the perspective of the reasonable victim.”89
There is a subjective requirement as well as an objective
requirement, because “if the victim does not subjectively per-
ceive the environment to be abusive, the conduct has not actu-
ally altered the conditions of the victim’s employment.”90
Not all propositions for romance or more are sexual harass-
85
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
86
Id.; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
82 (1998) (distinguishing “simple teasing” from conduct which creates a
hostile work environment); Candelore v. Clark County Sanitation Dist.,
975 F.2d 588, 590 (9th Cir. 1992) (“isolated incidents of sexual horseplay”
did not create a hostile work environment); Jordan v. Clark, 847 F.2d
1368, 1374-75 (9th Cir. 1988) (men and women telling “off-color” jokes
at work did not create an abusive environment).
87
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meri-
tor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
88
Id. at 23.
89
Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000).
90
Harris, 510 U.S. at 21-22.
13394 EEOC v. PROSPECT AIRPORT SERVICES
ment. People spend most of their waking hours with other
people at their workplaces, so that is where many meet and
begin social relationships, and someone has to make the first
overture. Some people have more social finesse than others,
and many might suggest coffee or a trip to an art exhibition
rather than sex, but mere awkwardness is insufficient to estab-
lish the “severe or pervasive” element. Had Munoz merely
asked Lamas to go out on a date, or to see whether they might
have a romantic relationship, or straightforwardly proposi-
tioned him for sex, and then quit when he clearly told her no,
the EEOC would not have shown enough evidence to survive
summary judgment.91
To be actionable, the conduct must go beyond the “merely
offensive” so that it changes the terms and conditions of the
victim’s job. Because a “sexual harassment case” is against
the employer, not the harasser, and “only the employer can
change the terms and conditions of employment, an isolated
incident of harassment by a coworker will rarely (if ever) give
rise to a reasonable fear that sexual harassment has become a
permanent feature of the employment relationship.”92 We
weigh both severity and pervasiveness to evaluate whether a
reasonable victim would think that sexual harassment had
become a permanent feature of the employment relationship.
And because only an employer can change the terms and con-
ditions of employment, that will rarely if ever be the case, if
the employer takes appropriate corrective action upon finding
out about the harassment.93 At least for coworker sexual
harassment, the employer could not reasonably be expected to
think an abusive environment had been created for an
91
Cf. Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337
(7th Cir. 1993) (finding no hostile work environment where a superior
asked employee for dates, called her a “dumb blond,” put his hand on her
shoulder several times, placed “I love you” signs in her work area, and
tried to kiss her in a bar).
92
Brooks, 229 F.3d at 924.
93
Id.EEOC v. PROSPECT AIRPORT SERVICES 13395
employee if the employer did not know of the conduct and its
unwelcomeness. But here it did.
[5] Munoz’s first advances were unwelcome, but Lamas
did not feel his work environment was abusive based on these
initial contacts. In light of Lamas’s testimony that he did not
feel abused until Munoz made her third invitation, had Munoz
stopped when Lamas told her clearly and explicitly after each
of the first two notes that he was not interested, the EEOC
would not have a triable issue of fact on unwelcomeness. But
Lamas testified that the third invitation was unwelcome and
abusive, and the record, taken in the light most favorable to
Lamas, shows that Lamas was perfectly clear that these
advances were unwelcome. (We do not imply some fixed rule
that a third invitation for a date is necessarily over the line,
because rejections often leave future possibilities unclear.)
[6] Munoz’s continued advances created an environment
that Lamas reasonably perceived as hostile and abusive.
Lamas’ emotional testimony about his reaction to Munoz’s
letters and gestures, his co-workers’ statements about
Munoz’s interest in him, his complaints to his supervisors and
Prospect managers, as well as his complaints to the EEOC
and State of Nevada all evidenced pervasiveness amounting
to an abusive work environment.94 As increased frequency
and pervasiveness of the advances as well as his other co-
workers’ messages from Munoz and ridicule crossed the line
over into abusiveness, he continued to complain to his super-
visors and demonstrated his sense of being abused.95
[7] Next we must consider whether a reasonable victim in
the same circumstances would have perceived the working
94
See M & O Agencies, 496 F.3d at 1055 (victim’s continued complaints
to supervisors and testimony that verbal abuse made her uncomfortable
and upset at work established subjective perception of abusive environ-
ment to state a prima facie case).
95
See Nichols, 256 F.3d at 873-74.
13396 EEOC v. PROSPECT AIRPORT SERVICES
environment created by Munoz’s conduct as abusive.
Munoz’s advances were not severe, as these cases go. The
only touching was a kiss on the cheek. She used words, ges-
tures, and a photograph, not unwanted touching, to communi-
cate her desires. The EEOC is correct, though, that the
pervasiveness and the inadequate response by the employer
established a jury question of whether her overtures led to an
abusive environment. We have held that “[t]he required level
of severity or seriousness varies inversely with the pervasive-
ness or frequency of the conduct.”96 In Draper v. Coeur Roch-
ester, Inc., we held that there was a genuine issue of material
fact on hostile work environment where the conduct at issue
consisted only of pervasive remarks over an extended period
of time.97
[8] Munoz’s pursuit of Lamas was relentless. She would
not leave him alone, despite his repeated clear rejections of
her overtures. She recruited other co-workers to deliver mes-
sages to him; the campaign broadened to include the whole
workplace. Other workers began mocking Lamas for his fail-
ure to respond to Munoz’s sexual advances. Lamas described
over six months of constant (and often daily) sexual pressure
and humiliation from Munoz and other co-workers. The cons-
tant ridicule and taunting from Lamas’ co-workers as a result
of Munoz’s advances is similar to the abusive ridicule we
found actionable in Nichols v. Azteca Restaurant Enterprises,
Inc.98
[9] The evidence in the record creates a genuine issue of
material fact that Lamas’s work was impaired by Munoz’s
sexual advances. He reported that he began crying at work,
sought medical help for his psychological problem, and the
quality of his work deteriorated on account of the pervasively
abusive environment. He went from being the well-respected
96
Id. at 872.
97
Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 1998).
98
Nichols, 256 F.3d at 870.
EEOC v. PROSPECT AIRPORT SERVICES 13397
employee, used to try to retain the Southwest Airlines con-
tract, to being fired. He conceded that the quality of his work
deteriorated because of his psychological difficulties on
account of the Munoz campaign of harassment.
4. Prospect Airport’s response.
[10] An employer is liable for a employee’s sexual harass-
ment of a coworker if it knew, or should have known, about
the harassment and failed to take prompt and effective reme-
dial action.99 “Harassment is to be remedied through actions
targeted at the harasser, not at the victim[.]”100 The record
establishes that a jury could reasonably find that Prospect
knew about the harassment, and that its response was inade-
quate. Lamas complained to his employer, but Prospect’s
responses were ineffectual, and known by Prospect to be inef-
fectual. His immediate supervisor, Ronda Thompson, failed
even to tell Munoz to stop. He repeatedly brought his con-
cerns to others in management, and a manager told Munoz to
stop, but management did nothing about it when Munoz did
not stop, and management knew she had not. Instead the
assistant general manager told Lamas to sing to himself “I’m
too sexy for my shirt.”
[11] Prospect’s actions were not enough to establish an
affirmative defense for Prospect. “If the employer fail[s] to
take even the mildest form of disciplinary action the remedy
is insufficient under Title VII.”101 Prospect did nothing about
Munoz, instead telling Lamas to console himself by saying
“I’m too sexy for my shirt.” Men as well as women are enti-
tled under Title VII to protection from a sexually abusive
work environment.102 Lamas submitted evidence that Prospect
knowingly denied him protection.
99
See, e.g., Meritor Sav. Bank, FSB v Vinson, 477 U.S. 57, 67 (1986);
Intlekofer v. Turnage, 973 F.2d 773, 780 (9th Cir. 1992).
100
Intlekofer, 973 F.2d at 780 n.9.
101
Id. at 779 (citations and quotations omitted).
102
See Oncale, 523 U.S. at 82 (sexual harassment of male employee by
male co-workers violated Title VII); Nichols, 256 F.3d at 875 (harassment
of male employee by co-workers for failure to conform to gender-based
stereotypes created hostile work environment in violation of Title VII).
13398 EEOC v. PROSPECT AIRPORT SERVICES
REVERSED.