Barbara Rader v. Janet Napolitano

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 *619 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…

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…

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…