In LaPuebla v. Mayorkas, 2024 WL 3874230 (9th Circuit August 20, 2024), the U.S. Court of Appeals for the Ninth Circuit vacated a lower court decision dismissing a hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
In sum, the plaintiff (a Customs and Border Protection officer in Guam) sued CBP under Title VII for a hostile work environment, after a colleague posted a photo of LaPuebla to a private Facebook group, where the colleague and other Agency employees proceeded to mock LaPuebla’s perceived sexuality.
From the decision:
1. Inverse Relationship Analysis. The district court erred in its framing and application of the inverse relationship between pervasiveness and severity. In a Title VII hostile work environment claim, a plaintiff must demonstrate that the harassment was “sufficiently severe or pervasive” as to “alter the conditions of [his] employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
In Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991), we held that “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Id. at 878. This means that a single incident would need to be “extremely severe” to establish a violation of Title VII, and inversely, where there are many alleged incidents, each one need not individually be as severe to establish a violation. See Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000).Here, the district court determined that, even though “a reasonable jury could find that [LaPuebla’s] claim of harassment arises from more than an ‘isolated incident,’ ” given the online nature of the posted photos, “the issue of pervasiveness requires a unique approach due to the temporal ambiguity of interactions with Quenga’s post.” Purporting to apply this “unique approach” to the inverse relationship set out in Ellison, the district court held that it “would not matter” how pervasive or frequent the jury found the harassment to be, because “any increase in the number of incidents … would proportionally reduce the severity of each incident.” The district court thus concluded that “a jury’s finding of frequency given the facts presented would have a near zero-sum effect on the hostile work environment analysis.”
The district court misapplied Ellison. No such “zero-sum effect” exists as a result of the inverse relationship between severity and pervasiveness. Instead, the relationship merely reduces a plaintiff’s burden to demonstrate the requisite severity of each harassing incident, provided he can show that the harassment occurred with greater pervasiveness. See Ellison, 924 F.2d at 878. We accordingly remand for the district court to correctly apply the inverse relationship to LaPuebla’s case.
The court further held that the district court did not have the benefit of its recent decision in Okonowsky v. Garland, 2024 WL 3530231 (9th Cir. July 25, 2024), which was a Title VII case involving sexually harassing social media content posted by the plaintiff’s coworker.
The court noted that while this case and Okonowsky are “not identical, they share some factual similarities” and its “reasoning bears directly on the issues presented in this case.”
Accordingly, it concluded that since neither the district court nor the parties had the benefit of Okonowsky when considering or briefing the summary judgment motion, it remanded so the district court can apply Okonowsky‘s holdings “in the first instance.”