Michelle Maliniak v. City of Tuscon

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 09 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHELLE J. MALINIAK, No. 12-17763

Plaintiff - Appellant, D.C. No. 4:07-cv-00125-AWT

v.

MEMORANDUM*

CITY OF TUCSON, a municipal corporation of the State of Arizona,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona A. Wallace TASHIMA, Senior Circuit Judge, Presiding

Argued and Submitted February 11, 2015 San Francisco California

Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.

Michelle Maliniak appeals the district court’s grant of judgment as a matter

of law in favor of the City of Tucson (“City”) on her claim of sexual discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. (“Title

VII”). Maliniak was an engineer in the Tucson fire department. She filed her

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. charge of discrimination with the Equal Employment Opportunity Commission

three hundred…

MEMORANDUM *

Michelle Maliniak appeals the district court’s grant of judgment as a matter of law in favor of the City of Tucson (“City”) on her claim of sexual discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e, et seq. (“Title VII”). Ma-liniak was an engineer in the Tucson fire department. She filed her charge of discrimination with the Equal Employment Opportunity Commission three hundred days after finding a sign on a fire department Hazmat truck, as described below. A jury found in favor of Maliniak on her Title VII hostile work environment claim and awarded her $35,000. In its verdict, the jury explicitly found that the truck sign incident, which was the only incident within the three hundred day limitations period, was a continuing part of Maliniak’s earlier hostile work environment claim. In granting the City’s Rule 50(b) motion, the district court concluded that the truck sign incident was not related to the earlier incidents, and that Maliniak’s hostile work environment claim was therefore time-barred. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

1. We review de novo a district court’s grant or denial of judgment as a matter…

dissenting:

I respectfully dissent. The totality of the circumstances test for evaluating relatedness is inconsistent with our precedent in Porter v. California Department of Corrections, 419 F.3d 885 (9th Cir.2005). While the majority’s approach may be preferable to our current rule, its adoption here would actually weaken Maliniak’s claim.

*629 Unlike other courts that have adopted a totality of the circumstances test, 1 the Ninth Circuit evaluates relatedness based on particular factors: “[t]hus, to determine whether all of these events constitute ‘one unlawful employment practice,’ we consider whether they were ‘sufficiently severe or pervasive,’ and whether the earlier and later events amounted to ‘the same type of employment actions, occurred relatively frequently, [or] were perpetrated by the same managers.’ ” Porter, 419 F.3d at 893 (quoting National R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 116-20 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (internal citations omitted)). Porter , like Morgan , does not endorse a totality of the' circumstances test.

Applying Porter , I reach a different result than my colleagues in the majority. The posting of two off-color and offensive…