FILED

UNITED STATES COURT OF APPEALS OCT 04 2013

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

BARBARA RADER, No. 11-56492

Plaintiff - Appellant, D.C. No. 2:10-cv-04697-JAK-

FMO

v. Central District of California, Los Angeles JANET A. NAPOLITANO, Secretary of the U.S. Department of Homeland Security, ORDER

Defendant - Appellee.

Before: KOZINSKI, Chief Judge, and GOULD and N.R. SMITH, Circuit Judges.

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.

FILED

NOT FOR PUBLICATION OCT 04 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA RADER, No. 11-56492

Plaintiff - Appellant, D.C. No. : 2:10-cv-04697-JAK-FMO v.

JANET A. NAPOLITANO, Secretary of the AMENDED U.S. Department of Homeland Security, MEMORANDUM*

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted June 3, 2013 Pasadena, California

Before: KOZINSKI, Chief Judge; GOULD and N.R. SMITH, Circuit Judges.

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. Rader’s sole allegation is that, as her

supervisor escorted her to receive her termination letter, he said, “You should have

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 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 (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 was neither sexual nor sufficiently severe

or pervasive to constitute a hostile work environment. See Craig v. M & O

Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007).

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

2 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,”1 Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996).

Lastly, Rader presents no admissible evidence supporting her allegation that

another Jewish employee was fired. Instead, she admits this allegation is based

only on office gossip relayed to her by other employees. See Fed. R. Civ. P.

56(c)(4).

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

uncontroverted 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 (2000).

1 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). 3 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.

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FILED

Rader v. Napolitano, No. 11-56492 OCT 04 2013

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

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 Rader said that this statement was

made, but dismisses it offhand. Of course this more-than-curious comment that

Rader says her supervisor made was uttered after the agency’s decision to

terminate Rader, but still the comment itself, made in the process of walking to get

a termination letter, is explicit enough to permit a rational jury to conclude that

Rader would not have been terminated or that her supervisor could have avoided or

altered the adverse employment action if she had performed or expressed a

willingness to perform sexual favors. See Davis v. Team Elec. Co., 520 F.3d 1080,

1 1092 & n.7 (9th Cir. 2008); see also Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 753–54 (1998). To my thinking this is not an “ambivalent” stray remark or a

mere offensive utterance that can be blinked away. See Dominguez-Curry v. Nev.

Transp. Dep’t, 424 F.3d 1027, 1038–39 (9th Cir. 2005); see also Nidds v.

Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996). Instead, it establishes

a “verbal nexus” between work and sexual requests and is so offensive to the

dignity of women working in a public office that it alone shows pretext. See Holly

D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173–75 (9th Cir. 2003) (citing Nichols v.

Frank, 42 F.3d 503, 512–13 (9th Cir. 1994), abrogated on other grounds by

Burlington Indus., Inc., 524 U.S. 724 and Faragher v. City of Boca Raton, 524

U.S. 775 (1998)); see also Swenson v. Potter, 271 F.3d 1184, 1191 n.5 (9th Cir.

2001). The timing and substance of the remark, attested to by Rader, connect it to

Rader’s termination in a more-than-speculative manner. It is true that the only

evidence of this remark comes from claimant Rader herself, and the supervisor

denies uttering the offensive words, but we have never had Ninth Circuit precedent

saying that a sex discrimination claimant’s personal testimony about what she

heard or saw is not admissible to create a genuine issue of material fact. See Porter

v. Cal. Dep’t of Corr., 419 F.3d 885, 887 & n.1, 891 (9th Cir. 2004). So the

testimony must be believed at this juncture, and if believed, in my view it

2 precludes summary judgment on the sexual-harassment claim.

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

plaintiff’s 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.1 And their repeated use,

especially when made in reference to a specific employee, can establish a genuine

issue of material fact with respect to pretext. See McGinest v. GTE Serv. Corp.,

1 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 modern American office.

3 360 F.3d 1103, 1115–16, 1121–24 (9th Cir. 2004). This is especially true when an

employee suffers an adverse employment action shortly after seeking permission to

participate in religious observance; Rader was terminated shortly after her request

to take off Yom Kippur and before the holiday even occurred. The very close

temporal proximity between her request, even though it appeared to be granted,

and the repeated use of “kike” in the office is enough to establish pretext. See

Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003); see also Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

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.

4 Whether these derogatory actions and references coupled with Rader’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.

5