NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 24 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBIN ANDERSON, No. 15-55556

Plaintiff-Appellant, D.C. No. 5:14-cv-00368-DSF-MAN v.

CRST INTERNATIONAL, INC., an Iowa MEMORANDUM* corporation; CRST VAN EXPEDITED, INC., an Iowa Corporation; ERIC VEGTEL, an individual,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted January 11, 2017 Pasadena, California

Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER,** Senior District Judge.

Appellant Robin Anderson brought claims against Appellees CRST

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Faber, Senior United States District Judge for the Southern District of West Virginia, sitting by designation. International, Inc., CRST Van Expedited, Inc. (collectively, “CRST”), and Eric

Vegtel alleging sex discrimination under California’s Fair Housing and

Employment Act (“FEHA”), Cal. Gov. Code § 12940 et seq., and Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e. She also brought a claim against CRST

alleging retaliation under Title VII. 42 U.S.C. § 2000e. The district court granted

summary judgment to Appellees on all claims. We have jurisdiction under

28 U.S.C. § 1291, and we affirm in part and reverse in part.

We review a district court decision granting summary judgment de novo to

determine whether, viewing the evidence in the light most favorable to the non-

movant, there are any genuine issues of material fact. Surrell v. Cal. Water Serv.

Co., 518 F.3d 1097, 1103 (9th Cir. 2008).

We first address the FEHA claims. The California Supreme Court has stated

that “[o]rdinarily the statutes of a state have no force beyond its boundaries . . . .

Although a state may have the power to legislate concerning the rights and

obligations of its citizens with regard to transactions occurring beyond its

boundaries, the presumption is that it did not intend to give its statutes any

extraterritorial effect.” N. Alaska Salmon Co. v. Pillsbury, 162 P. 93, 93 (Cal.

1916). This presumption may be overcome if extraterritorial intent “is clearly

expressed or reasonably . . . inferred from the language of the act or from its

purpose, subject matter or history.” Id. (citations and internal quotation marks

2 omitted).

The text of the FEHA does not provide for its extraterritorial application, nor

does its “purpose, subject matter or history” suggest that the legislature intended it

to apply to extraterritorial transactions. Id. Thus, Anderson’s claims under the

FEHA fail because they are based on conduct that occurred outside the state. We

therefore affirm the district court’s grant of summary judgment to both Appellees

on the FEHA claims.

Next, we must decide the Title VII claims. No Title VII cause of action

exists against Vegtel because Anderson has sued him in his individual capacity.

See Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Accordingly,

we also affirm this aspect of the district court’s decision.

However, we reverse the district court’s grant of summary judgment to

CRST on Anderson’s Title VII claim alleging hostile work environment. First,

Anderson presents evidence from which a jury could determine both that Anderson

subjectively perceived her work environment to be hostile and that a reasonable

woman in Anderson’s position would have perceived the environment to be

hostile. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Ellison v. Brady,

924 F.2d 872, 879 (9th Cir. 1991). Indeed, such a perception could have been

exacerbated by the fact that truck co-drivers spend significant amounts of time in

close proximity with one another, and by the fact that this conduct occurred in a

3 compressed timeframe, over the course of three weeks. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (observing that determining

whether workplace behavior constitutes harassment “requires careful consideration

of the social context in which particular behavior occurs and is experienced by its

target . . . [and] often depends on a constellation of surrounding circumstances,

expectations, and relationships”).

Second, Anderson presents sufficient evidence to create a material dispute as

to whether CRST provided an effective remedy. An employer can escape liability

for hostile work environment if it takes effective action once it “knows or should

know of harassment.” Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.

1995); see also Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000)

(explaining that the employer’s response is critical to a hostile-work-environment

inquiry under Title VII, “[w]hich is why [the harasser’s] conduct, while relevant, is

not the primary focus of our inquiry”).1 The effectiveness of such action is

1 Our colleague quotes Brooks out of context. Brooks holds that “an isolated incident of harassment by a co-worker will rarely . . . give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship” on the theory that “only the employer can change the terms and conditions of employment.” 229 F.3d at 924. “[I]f the employer takes appropriate corrective action, it will not have ratified the conduct. In such circumstances, it becomes difficult to say that a reasonable victim would feel that the terms and conditions of her employment have changed as a result of the misconduct.” Id. Conversely, an employer may ratify harassing conduct by failing to take appropriate corrective action, in which case a victim may reasonably feel that the terms of her employment have changed.

4 “measured by the twin purposes of ending the current harassment and deterring

future harassment—by the same offender or others.” Fuller, 47 F.3d at 1528.

Here, the harassment stopped because Anderson and Vegtel were separated.

However, Anderson presents evidence that CRST never actually investigated her

complaint and never informed Vegtel of the fact that he was prohibited from

driving with female truck drivers in the future. Moreover, Anderson alleges that

CRST failed to reassign her to a new truck or new routes after she and Vegtel were

separated. We have held that an employer’s remedy is not effective even though it

stops harassment if the remedy targets the victim and puts her in a worse position.

See e.g., Ellison, 924 F.2d at 883 (finding ineffective remedy where employer

transferred victim to less desirable location); Fuller, 47 F.3d at 1522 (finding

ineffective remedy where employer offered to transfer victim to less desirable

location). And although CRST insists that it attempted to reassign Anderson by

sending her an email with a list of female drivers, the email provided no

explanation of what the list was or how it should be used. On these facts, a jury

could conclude that CRST’s remedy put Anderson in a worse position and was

thus not effective.2

2 Contrary to our colleague’s characterization, we do not suggest that CRST was expected to anticipate Vegtel’s harassing behavior or that it erred by failing to provide separate hotel rooms. Instead, our holding is based on CRST’s response to Vegtel’s conduct after the fact. We conclude only that Anderson has presented

5 Because a reasonable jury could determine that Vegtel’s conduct was

sufficiently severe and pervasive to create a hostile work environment, and that

CRST failed to provide an effective remedy, we reverse the district court’s grant of

summary judgment to CRST on the hostile work environment claim.

Finally, we reverse the district court’s grant of summary judgment to CRST

on Anderson’s Title VII claim alleging retaliation. Under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Anderson

has made out a prima facie case of retaliation. Accordingly, the burden shifts to

CRST to state a “legitimate, nondiscriminatory reason” for firing her. Id. at 802.

Although CRST argues that Anderson failed to report to work, Anderson insists

that after filing her complaint she never received any work assignments, and there

is no evidence to suggest that she was obligated to find her own route assignments

from CRST. If Anderson did not abandon her job, then CRST has failed to proffer

a non-retaliatory reason for her termination. Because a reasonable jury could

conclude that CRST actually fired Anderson in retaliation for submitting a

sufficient evidence to create a material dispute as to whether CRST’s remedy was “effective” or, instead, put Anderson in a worse position because CRST removed Anderson from her existing route and then failed to offer her a reassignment or return her calls to human resources. Moreover, our colleague’s statement that CRST “attempted to give Anderson new work assignments” is a conclusion that can only be reached by viewing the evidence in the light most favorable to CRST instead of, as our law requires, in the light most favorable to Anderson. Dissent 3.

6 complaint against Vegtel, we reverse the district court’s grant of summary

judgment to CRST on the retaliation claim.

For the above reasons, we reverse the district court’s grant of summary

judgment as to CRST’s Title VII liability on the hostile work environment and

retaliation claims, but affirm the judgment as to the state-law claims against both

Appellees and affirm the judgment as to the Title VII claims against Vegtel. The

case is remanded for further proceedings not inconsistent with our decision.

AFFIRMED in part, REVERSED in part, and REMANDED.

The parties shall bear their own costs.

7

FILED

MAR 24 2017

Anderson v. CRST Int’l, Inc., No. 15-55556

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FABER, Senior District Judge, dissenting in part and concurring in part:

I agree with the majority that Appellant’s state law claims under California’s

Fair Housing and Employment Act (FEHA), Cal. Gov. Code § 12940 et seq., are

barred. I also agree that no Title VII cause of action exists against Appellee Vegtel

since he has been sued in his individual capacity. I respectfully part company with

my colleagues on the issue of whether the district court properly granted summary

judgment to Appellee CRST on Appellant’s Title VII claim that alleges (1) hostile

work environment and (2) retaliation. In my view, the opinion of the majority on

these points is not supported by evidence on the record and fails to follow the

teaching of the United States Supreme Court in relevant cases.

I. HOSTILE WORK ENVIRONMENT

I do not believe that Anderson has offered sufficient evidence from which a

reasonable jury could conclude that she was in a hostile work environment. The

United States Supreme Court has observed that “[i]f the harassing employee is the

victim’s co-worker, the employer is liable only if it was negligent in controlling

working conditions.” Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013).

Under such circumstances, “‘employers are liable for failing to remedy or prevent

a hostile or offensive work environment of which management-level employees

knew, or in the exercise of reasonable care should have known.’” McGinest v. GTE Service Corp., 360 F.3d 1103, 1119—20 (9th Cir. 2004) (quoting Ellison v.

Brady, 924 F.2d 872, 881 (9th Cir. 1991)). As common sense tells us, an employer

cannot (and should not) be held liable for conduct of which it is unaware. “The

employer’s liability, if any, runs only from the time it knew or should have known

about the conduct and failed to stop it.” Swenson v. Potter, 271 F.3d 1184, 1192

(2001).

As this Court held in Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th

Cir. 2000), “an isolated incident of harassment by a co-worker will rarely (if ever)

give rise to a reasonable fear that sexual harassment has become a permanent

feature of the employment relationship.” As the district court in our case pointed

out, here there were two primary incidents of harassment over a three-week period,

incidents the employer knew nothing about until after the fact. The incidents could

hardly become “a permanent feature of the employment relationship” without the

employer’s imprimatur. Id. The employer never gave its approval to the

harassment Anderson alleges here. Before, during, and after these incidents, CRST

has endeavored to eradicate sexual harassment from its company culture. For the

same reasons, it is also no answer to suggest that the frequency of incidents

notwithstanding, the severity, the physically threatening or humiliating nature of it,

and the level of interference with the alleged victim’s work were so high that a

reasonable jury could find the conduct actionable under Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A reasonable jury could not find that

CRST’s conduct or inaction was frequent, severe, or physically threatening or

humiliating or that it interfered sufficiently with Anderson’s terms of employment.

CRST, when it did learn of Vegtel’s alleged misconduct, took immediate

steps to stop it. It prohibited Vegtel from working with female co-drivers, and it

attempted to give Anderson new work assignments that would not require her to

team up with male co-drivers. Furthermore, CRST had a policy of educating its

employees on the subject of sexual harassment, and a policy and practice designed

to prevent the very conduct of which Vegtel was accused. Vegtel may have

ignored what CRST had tried to teach him. The fact that CRST might have done

more does not overcome the fact that it did enough to escape liability under Title

VII. When “assum[ing] the perspective of [a] reasonable victim,” no reasonable

juror would find that the actions CRST took were insufficient to prevent a

recurrence or inadequate to remedy what allegedly had happened. Brooks, 229

F.3d at 924 (citing Ellison, 924 F.2d at 879).

Accordingly, I find no hostile work environment for which CRST can be

held responsible. All CRST did that could conceivably have contributed to a

hostile work environment was to require male-female driving teams to share hotel

rooms. To conclude that this practice, while ill-advised, alone created a hostile

work environment is to assume that every woman is vulnerable and every man is a cad. See, e.g., United States v. Virginia, 518 U.S. 515, 541 (1996) (disfavoring

gender classifications based on “generalizations or tendencies”) (citations and

internal quotation marks omitted); Bray v. Alexandria Women’s Health Clinic, 506

U.S. 263, 270—71 (1993) (providing an example of the fact that “women as a

class” are not a monolith susceptible of being typecast).

II. RETALIATION

I likewise find no evidence in the record to support the conclusion that

Anderson was fired because she filed a complaint. To so conclude is to base the

decision on speculation and little else. The fact that Anderson was discharged after

she filed a complaint is not evidence that she was fired because of the complaint.

On the other hand, there is evidence compelling the conclusion that she was fired

because she abandoned the job.

Even if we assume that retaliation was a motivating factor for CRST when it

discharged Anderson, an assumption not supported by any evidence, her claim still

fails under the burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The United States Supreme Court recently held that, under

Title VII, it is inadequate for a plaintiff to show that discrimination on a proscribed

basis was one motivating factor for the adverse action. See Univ. of Texas S.W.

Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). Retaliation must be the “but for”

cause of the employer’s adverse decision. Id. at 2527. If a desire to retaliate exists only among other possible reasons, the plaintiff

has not met her burden. There must be evidence that retaliation was the actual

reason for the adverse employment action. Anderson has not come close to

meeting this burden. On the contrary, CRST had a good reason to fire her—she

initially did nothing to accept her reassignment to team only with other female

drivers; and she went missing in action and could not be located despite CRST’s

efforts to find her. In effect, Anderson abandoned her post and was let go as a

result.

* * *

I would affirm the district court’s decision in all respects.