Elaine Candelore v. Clark County Sanitation District James E. Gans Michael G. Pierson Fred Turnier, Does I Thru Xxx, Inclusive

975 F.2d 588 59 Fair Empl.Prac.Cas. (BNA) 1188 , 59 Empl. Prac. Dec. P 41,778 , 61 USLW 2203 , 7 IER Cases 1306 Elaine CANDELORE, Plaintiff-Appellant, v. CLARK COUNTY SANITATION DISTRICT; James E. Gans; Michael G. Pierson; Fred Turnier, Does I Thru XXX, Inclusive, Defendants-Appellees. No. 91-15015. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 12, 1992. Decided Sept. 14, 1992. John J. Tofano, Las Vegas, Nev., for plaintiff-appellant. Carol R. Davis, Beckley, Singleton, DeLanoy, Jemison & List, Chartered, Las Vegas, Nev., for defendants-appellees. Appeal from the United States District Court for the District of Nevada. Before: SCHROEDER, REINHARDT and KLEINFELD, Circuit Judges. PER CURIAM: 1 Elaine Candelore appeals the district court's summary judgment dismissal of her section 1983 action against Clark County Sanitation District, et al. See Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956 (D.Nev.1990). Candelore alleged in her complaint that while employed at the Clark County Sanitation District she suffered age and sex discrimination. She also claimed that the sexual harassment she experienced supported a claim for intentional infliction…

Elaine Candelore appeals the district court’s summary judgment dismissal of her section 1983 action against Clark County Sanitation District, et al. See Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956 (D.Nev.1990). Candelore alleged in her complaint that while employed at the Clark County Sanitation District she suffered age and sex discrimination. She also claimed that the sexual harassment she experienced supported a claim for intentional infliction of emotional distress under Nevada law.

Candelore’s principal legal contentions on appeal involve her allegations that a coworker was having a romantic affair with one or more of Candelore’s supervisors.

As Candelore recognizes, in order to prevail on her claim of sex discrimination in violation of the Constitution, she must be able to establish intentional discrimination pursuant to the standards developed under Title VII. 42 U.S.C. § 2000e et seq. (1981 & Supp.1992); See Peters v. Lieuallen, 746 F.2d 1390 (9th Cir.1984). The Title VII implementing regulation upon which Candelore relies provides:

29 C.F.R. 1604.11(g). Candelore, however, has never identified employment opportunities or benefits that were extended to…

concurring:

I concur in the reasoning as well as the result. My purpose in concurring separately is to flag an undecided issue, so that readers do not infer a principle of law from our per curiam opinion upon which we have not decided.

We have unanimously affirmed, because Candelore did not establish a factual predicate for the alleged discrimination against her. She “has never identified employment opportunities or benefits that were extended to less qualified female co-workers who responded to sexual overtures from work supervisors.” Suppose Candelore had provided cognizable evidence that a coworker received benefits Candelore did not because the coworker had an affair with a supervi *592 sor. Would she then have a good sex discrimination claim? We have not had occasion, in this case, to decide that question one way or the other.

The Second Circuit decided that, where disparate treatment was based on a romantic relationship rather than gender, it did not amount to sex discrimination under Title VII. DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir.1986), cert. denied, 484 U.S. 825 , 108 S.Ct. 89 , 98 L.Ed.2d 50 (1987). The Second Circuit read “submission”…