Hardage

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUGH HARDAGE, 

Plaintiff-Appellant, v. CBS BROADCASTING INC., a New No. 03-35906 York Corporation; VIACOM TELEVISION STATIONS INC., a  D.C. No.

CV-02-01303-JCC

Delaware Corporation; VIACOM

OPINION

BROADCASTING OF SEATTLE INC., a Delaware Corporation; KATHY SPARKS, an individual, Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Chief Judge, Presiding

Argued and Submitted May 3, 2005—Seattle, Washington

Filed November 1, 2005

Before: J. Clifford Wallace, Barry G. Silverman, and Richard A. Paez, Circuit Judges.

Opinion by Judge Wallace; Partial Dissent by Judge Paez

14881 HARDAGE v. CBS BROADCASTING INC. 14885

COUNSEL

Claudia Kilbreath, Short Cressman & Burgess PLLC, Seattle, Washington, for the plaintiff-appellant. 14886 HARDAGE v. CBS BROADCASTING INC. Harry J. F. Korrell and Kathryn S. Loppnow, Davis Wright Tremaine LLP, Seattle, Washington, for the defendants- appellees.

OPINION

WALLACE:

The district court entered summary judgment dismissing…

The district court entered summary judgment dismissing Hardage’s sexual harassment and retaliation claims against CBS Broadcasting Inc., Viacom Television Stations Inc., and Viacom Broadcasting of Seattle Inc. (collectively, CBS), pursuant to Title VII of the 1964 Civil Rights Act and the Washington Law Against Discrimination (WLAD). The district court concluded that CBS was entitled to assert an affirmative defense to liability based on the Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998), and it accordingly denied Hard-age’s motion for partial summary judgment on that issue. In addition, the court declined to exercise supplemental jurisdiction over Hardage’s WLAD claims against Kathy Sparks (the alleged harasser) and dismissed those claims without prejudice. See 28 U.S.C. § 1367 (c). The court also dismissed Hardage’s Title VII claims against Sparks with prejudice, and Hard-age does not appeal this portion of the court’s judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I.

In the summer…

dissenting in part:

I agree that the district court properly granted summary judgment on Hardage’s constructive discharge and retaliation claims, and that Hardage did not raise a *1190 triable issue of fact as to whether he suffered a tangible employment action. I cannot agree, however, with the majority’s conclusion that CBS established as a matter of law the Faragher/Ellerth defense to vicarious liability for Sparks’ sexual harassment. In reaching its conclusion, the majority departs from well-settled case law requiring an employer to conduct an investigation and take prompt corrective action once it is on notice of alleged harassment. Because a reasonable jury readily could find that CBS is vicariously liable for sexual harassment, I would reverse the grant of summary judgment and remand for a trial. Accordingly, I dissent from Parts III.B and III.C of the majority’s opinion.

To establish the Faragher/Ellerth affirmative defense, an employer must prove by a preponderance of the evidence two necessary elements:

Faragher v. City of Boca Raton, 524 U.S. 775, 807 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 , 118 S.Ct. 2257 ,…