Barbara Rader v. Janet Napolitano
Barbara Rader v. Janet Napolitano
Concurring in Part
concurring in part and dissenting in part:
I concur in the memorandum disposition insofar as it rejects the claimed disability discrimination and claimed age discrimination in its paragraphs 3 and 4. But I respectfully dissent from the majority’s conclusions that the claims of sexual harassment and religious discrimination warranted dismissal by summary judgment.
As to sexual harassment, the majority states that Rader presents no evidence in support of a quid pro quo theory that she or anyone else was ever asked to provide sexual favors. However, in her declaration, Rader stated that her direct supervisor said, “You should have f* * *ed me,” as he escorted her to get her termination letter. The majority recognizes that Rad-er said that this statement was made, but dismisses it offhand. Of course this more-than-curious comment that Rader says her
With regard to the religious-discrimination claim, again I think there are genuine fact issues. The majority downplays evidence presented in support of Rader’s allegation that religious epithets were being used in the office, classifying the repeated use of the word “kike” as stray remarks. But the word “kike,” certainly offensive to Jews, has no place in any modern office, much less in a department of the U.S. government. See Dominguez-Curry, 424 F.3d at 1038 (“Where a decisionmaker makes a discriminatory remark against a member of the plaintiffs class, a reasonable factfinder may conclude that discriminatory animus played a role in the challenged decision.”). Terms like “kike,” used to describe religious or ethnic minorities, are relics of a bygone age.
Again, except from claimant Rader, there is no evidence of use of the word “kike” around the office. And some others, including Rader’s supervisor, declared they had never used, witnessed, or experienced inappropriate discrimination in the office. But again precedent does not establish that Rader’s story is not to be credited for purposes of opposing summary judgment. See Porter, 419 F.3d at 891. So taking her version of events as true, we see instances of five or six usages of “kike” in Rader’s presence as well as someone working at the Department of Homeland Security appearing for an open house dressed mockingly as an Orthodox rabbi. It should be obvious that the use of a racial or ethnic slur in the presence of a minority employee will be harmful to that person, whether the reference is directed at them or at another person of their race or ethnicity. Whether these derogatory actions and references coupled with Rad-er’s termination following closely on the heels of her request for time off for religious observance are sufficient to show pretext by rebutting the significant evidence that the government had grounds to terminate Rader is a close question. But I believe they are enough to let the matter go to a jury. See McGinest, 360 F.3d at 1121-24.
For these reasons I respectfully dissent, believing that there are genuine issues of material fact that preclude summary judgment on sexual harassment and religious discrimination.
. There are many theories about the origin of this derogatory reference. For example, it has been described as emerging from Ellis Island where illiterate Jewish immigrants refused to sign entry forms with the customary "X” because they associated it with a Christian cross and instead signed with a circle, known as a kikel in Yiddish. Leo Rosten, The New Joys of Yiddish 177 (2001). Another theory suggests that the term derives from the Latin word caeca meaning blind, which was a common Christian defamation of Jewish persons referring to Jewish blindness to the so-called true faith. Robert Michael & Philip Rosen, Dictionary of Antisemitism: From the Earliest Times to the Present 261 (2007). But regardless of its origins, the term’s use has no place in a modem American office.
Opinion of the Court
ORDER
The prior memorandum disposition filed on June 17, 2013 is hereby amended concurrent with the filing of the amended disposition today. The partial dissent was not amended.
With these amendments, Chief Judge Kozinski and Judge N.R. Smith have voted to deny the petition for rehearing en banc. Judge Gould has voted to grant the petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed in response to the amended disposition.
AMENDED MEMORANDUM
1. Rader failed to make out a prima facie case of sexual harassment. Rader presents no evidence in support of a quid pro quo theory that she or anyone else was ever asked to provide sexual favors. Rad-er’s sole allegation is that, as her supervisor escorted her to receive her termination letter, he said, “You should have f* * *ed me.” The offensive remark cannot establish quid pro quo because Rader provides no evidence that her supervisor sought sexual consideration from her; without evidence that she had the opportunity to reject his advances, there can be no quid pro quo inference. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173 (9th Cir. 2003). Rader’s inference is based upon speculation and cannot create a triable issue of material fact. See Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003). This “isolated incident[]” (though an offensive comment), spoken after the decision to terminate Rader had already been made, did not interfere with Rader’s employment and is non-actionable. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110-11 (9th Cir. 2000).
Moreover, Rader admits the alleged flirting and friendly contact between her supervisor .and another female employee
2.While Rader made out a prima facie case of religious discrimination, Defendant demonstrated a valid reason for terminating her, and she fails to show this reason was pretextual. We also note that her request to observe Yom Kippur was granted according to normal procedure. Rader also alleges that she heard her direct supervisor use the word “kike” with respect to others on four or five occasions and heard the supervisor’s assistant use the word once with respect to her. While undoubtedly offensive to Rader, “ ‘stray’ remarks are insufficient to establish discrimination,” Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990), especially when the remarks are “not tied directly to [the employee’s] layoff,”
Based on the foregoing record, we conclude that, at best, Rader’s evidence raised only a “weak” issue of fact and the record contains other, “abundant and uncontro-verted independent evidence that no discrimination had occurred,” thus, judgment as a matter of law for Defendant was appropriate. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
3. Even crediting Rader’s reported disabilities and the fact that she was otherwise qualified to do her job, Rader does not allege facts giving rise to an inference of disability discrimination. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007).
4. Although Rader was fifty-eight and she performed her job satisfactorily, she has not “show[n] through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination.” Nidds, 113 F.3d at 917.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Rader also describes an incident where a Department of Homeland Security employee dressed mockingly as an Orothodox rabbi. Again, while offensive, Rader presents no evidence linking this incident to her termination. DeHorney v. Bank of Am. Nat’l Trust & Sav. Ass’n, 879 F.2d 459, 467-68 (9th Cir. 1989) (affirming summary judgment for employer where plaintiff failed to demonstrate nexus between discriminatory remark and plaintiff’s termination).
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