Johnson v. ITT Industries, Inc.

concurring in part and dissenting in part.

I concur except with respect to the claim for constructive discharge. In my opinion, the record contains a genuine issue of material fact as to whether a reasonable person in Plaintiffs’ position would have felt forced to quit when the harasser returned to the workplace, in view of the severity and duration of the harassment. In Ellison v. Brady, 924 F.2d 872 (9th Cir.1991), we said:

Id. at 883 & n. 19 (emphasis added) (citation omitted). We also returned that case to the district court to develop the facts, recognizing that the inquiry is fact-intensive. Id. at 883 . Ellison simply does not support the proposition that as a matter of law, “[t]he mere presence of the harasser, after his return from suspension, did not create a hostile work environment from the perspective of a reasonable person because no additional incidents occurred,” Majority Mem. at 3.

It also is important in this case that one reason why no additional incidents occurred was that Plaintiffs left because their harasser returned. The reasonableness of that act is, on this record, a question of fact.

For these reasons, I would reverse with respect to the constructive…

MEMORANDUM **

Plaintiffs Gattis Johnson and Ruth Hiss appeal the district court’s grant of sum *74 mary judgment in favor of ITT Industries on their claims for race discrimination, sex discrimination, retaliation, wrongful termination, breach of implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the district court’s grant of summary judgment de novo, see Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 816 , 151 L.Ed.2d 700 (2002), the district court’s denial of a motion for time extension for an abuse of discretion, see Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151 , 1161 n. 6 (9th Cir.2001); Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir.1994), and the district court’s denial of a motion for reconsideration for an abuse of discretion, see Bellus v. United States, 125 F.3d 821, 822 (9th Cir.1997) (per curiam). We affirm.

Plaintiffs argue that the district court abused its discretion by not allowing them additional time to file their opposition to Defendant’s motion for summary judgment. Plaintiffs waited…