Kerry Ellison v. Nicholas F. Brady, Secretary of the Treasury

dissenting:

This case comes to us on appeal in the wake of the granting of a summary judgment motion. There was no trial, therefore no opportunities for cross examination of the witnesses. In addition, there are factual gaps in the record that can only lead by speculation. Consequently, I believe that it is an inappropriate case with which to establish a new legal precedent which will be binding in all subsequent cases of like nature in the Ninth Circuit. I refer to the majority’s use of the term “reasonable woman,” a term I find ambiguous and therefore inadequate.

Nowhere in section 2000e of Title VII, the section under which the plaintiff in this case brought suit, is there any indication that Congress intended to provide for any other than equal treatment in the area of civil rights. The legislation is designed to achieve a balanced and generally gender neutral and harmonious workplace which would improve production and the quality of the employees’ lives. In fact, the Supreme Court has shown a preference against systems that are not gender or race neutral, such as hiring quotas. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989).…

Kerry Ellison appeals the district court’s order granting summary judgment to the Secretary of the Treasury on her sexual harassment action brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e (1982). This appeal presents two important issues: (1) what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment, and (2) what remedial actions can shield employers from liability for sexual harassment by co-workers. The district court held that Ellison did not state a prima facie case of hostile environment sexual harassment. We reverse and remand.

Both issues require a detailed analysis of the facts, which we consider in the light most favorable to Ellison, the non-moving party. Sierra Club v. Penfold, 857 F.2d 1307, 1320 (9th Cir.1988). We review summary judgments de novo. Id.

I

Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also assigned to the San Mateo office. The two co-workers never became friends, and they did…

924 F.2d 872 54 Fair Empl.Prac.Cas. 1346 , 55 Fair Empl.Prac.Cas. 111 , 55 Empl. Prac. Dec. P 40,520 , 59 USLW 2455 Kerry ELLISON, Plaintiff-Appellant, v. Nicholas F. BRADY, * Secretary of the Treasury, Defendant-Appellee. No. 89-15248. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 19, 1990. Decided Jan. 23, 1991. Dissent Amended Feb. 5, 1991. Terrence A. Beard, Oakland, Cal., for plaintiff-appellant. Stephen L. Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before BEEZER and KOZINSKI, Circuit Judges, and STEPHENS, ** District Judge. BEEZER, Circuit Judge: 1 Kerry Ellison appeals the district court's order granting summary judgment to the Secretary of the Treasury on her sexual harassment action brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e (1982). This appeal presents two important issues: (1) what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment, and (2) what remedial actions can shield…