Luox v. Maire
Luox v. Maire
Opinion of the Court
MEMORANDUM
The district court did not err in granting summary judgment on Luox’s
The district court did not err in granting summary judgment on Luox’s claim that his supervisor retaliated against him for complaining about the alleged sexual harassment. Although Luox demonstrated that he engaged in a protected activity by filing the complaint, he failed to create a triable issue of material fact regarding whether he was constructively discharged. “The inquiry [regarding a constructive discharge] is objective,” Pa. State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), and Luox did not present evidence that, after he engaged in the protected activity, his “working conditions were so intolerable and discriminatory that a reasonable person would feel forced to resign.” Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir. 2000) (internal alteration omitted). The dissent refers to medical records that support Luox’s claims of stress, but Luox’s subjective reactions to objectively tolerable working conditions do not help him meet the standard for constructive discharge.
Nor can Luox rely on the treatment he allegedly experienced before he filed his complaint as evidence of intolerable working conditions. The jury returned a verdict for defendants on Luox’s hostile work environment claim, and “[w]here a plaintiff fails to demonstrate ... a hostile work environment claim, it will be impossible for h[im] to meet the higher standard of constructive discharge.... ” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000).
Moreover, in the context of this case, the two reprimands and new work performance standards Luox received after complaining to the state attorney general did not rise to the level of adverse employment actions because a reasonable jury could not find they were “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Even if the reprimands and new performance standards were adverse employment actions, the employer provided a legitimate non-diseriminatory reason that such actions were a response to Luox’s absenteeism and poor job performance, and Luox did not create a triable issue of fact that his employer’s reason for taking such actions was pretextual.
Finally, the district court did not err in granting summary judgment on Luox’s claim of retaliation for exercising his First Amendment rights. Luox’s statements regarding the deficiencies in the TRW contract were made pursuant to his official duties, and therefore cannot be the basis for a First Amendment retaliation claim. See Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Concurring in Part
concurring in part, dissenting in part.
I respectfully dissent, in part.
Luox’s .affidavit and testimony suffice to establish a genuine issue of fact about whether he suffered a significant change in his employment status on account of rejecting his supervisor’s sexual overtures.
Luox also established a genuine issue of fact on Title VII retaliation claim, and on whether his employer’s reasons for its actions were pretexts for discrimination.
With regard to the quid pro quo claim and the retaliation claim, Luox also established a genuine issue of fact regarding constructive termination. He submitted medical evidence that the sexual pressure before December 2001, combined with the retaliation for rejecting his supervisor’s advances and his complaint, caused a level of stress such that his physician advised that he quit exposing himself to a toxic work environment. His request for transfer was rejected, so resigning was the only way he could comply with his physician’s advice.
Of course, a jury may reject all of this. But Luox was entitled to put this part of his case, on which summary judgment was granted, before a jury.
. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.