Medina Rene v. Mgm Grand Hotel, Inc.

305 F.3d 1061 Medina RENE, Plaintiff-Appellant, v. MGM GRAND HOTEL, INC., Defendant-Appellee. No. 98-16924. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc September 25, 2001. Filed September 24, 2002. COPYRIGHT MATERIAL OMITTED Richard Segerblom, Las Vegas, NV, for the appellant. Elayna J. Youchah, Schreck Morris, Las Vegas, NV, for the appellee. Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-97-00364-PMP. Before: SCHROEDER, Chief Judge, HUG, PREGERSON, TROTT, FERNANDEZ, T.G. NELSON, THOMAS, GRABER, W. FLETCHER, FISHER, and BERZON, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge PREGERSON; Concurrence by Judge GRABER; Concurrence by Judge FISHER; Dissent by Judge HUG. WILLIAM A. FLETCHER, Circuit Judge. 1 This case presents the question of whether an employee who alleges that he was subjected to severe, pervasive, and unwelcome "physical conduct of a sexual nature" in the workplace asserts a viable claim of discrimination based on sex under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., even if that employee also…

whom TROTT and BERZON, Circuit Judges, join, concurring.

I concur in the result of Judge Fletcher’s opinion. I write separately to point out that in my view, this is a case of actionable gender stereotyping harassment.

More than a decade ago, the Supreme Court held that gender stereotyping is actionable under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989). More recently, the Supreme Court held that “same-sex sexual harassment is actionable under Title VII.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998). And only last year, we held that same-sex gender stereotyping of the sort suffered by Rene — i.e., gender stereotyping of a male gay employee by his male coworkers — “constituted actionable harassment under ... Title VII.” Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874-75 (9th Cir.2001).

Rene testified in his deposition that his co-workers teased him about the way he walked and whistled at him “[l]ike a man does to a woman.” Rene also testified that his co-workers would “caress my butt, caress my shoulders” and blow kisses at him “the way ... a…

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge PREGERSON; Concurrence by Judge GRABER; Concurrence by Judge FISHER; Dissent by Judge HUG.

This case presents the question of whether an employee who alleges that he was subjected to severe, pervasive, and unwelcome “physical conduct of a sexual nature” in the workplace asserts a viable claim of discrimination based on sex under Title VII of the 1964 Civil Rights Act,- 42 U.S.C. §§ 2000e et seq., even if that employee also alleges that the motivation for that discrimination was his sexual orientation. We would hold that an employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of *1064 action. It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature. We therefore would hold that the plaintiff in this case has stated a cause of action under Title VII.

I

Medina Rene, an openly gay man, appeals from the district court’s grant of…

concurring.

I concur in Judge W. Fletcher’s opinion because the facts here are materially indistinguishable from the facts in Oncale v. *1070 Sundowner Offshore Services, Inc., 523 U.S. 75 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998). If summary judgment in the employer’s favor was inappropriate in that case, it is equally so in this one.

I write separately to note that I agree with Judge Hug’s dissent on two issues that the majority opinion does not reach: (1) Title VII does not protect employees from discrimination because of sexual orientation and (2) Rene did not assert a theory of “sexual stereotyping.”

Concurring.

I concur in Judge Fletcher’s opinion. Summary judgment is improperly granted where, as in this case, the “inference of discrimination” because of sex is “easy to draw.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998). The repeated physical attacks targeted at body parts clearly linked to Rene’s gender constituted overwhelming evidence from which a jury could infer that the attacks were based, at least in part, on Rene’s sex. See 42 U.S.C. § 2000e-2; see also, e.g., Steiner v. Showboat Operating Co., 25 F.3d 1459,…

with whom SCHROEDER, Chief Judge, FERNANDEZ, and T.G. NELSON, Circuit Judges, join, dissenting.

I respectfully dissent from Judge Fletcher’s plurality opinion and Judge Pre-gerson’s opinion concurring in the result, but expressing a different rationale for the result. The basis for Judge Fletcher’s opinion is that harassment of a person in the workplace in the form of severe unwelcome physical conduct of a sexual nature is sufficient to establish a cause of action under Title VII of the Civil Rights Act, regardless of whether that harassment constitutes discrimination because of race, color, religion, gender, or national origin. I disagree because this completely eliminates an essential element of that statute, that the harassment be because of discrimination against one of the five specified categories of persons named in the statute. Judge Pregerson’s opinion is based upon gender stereotyping harassment, which was never asserted by Rene in the district court and was not supported by evidence presented to the district court. In my opinion this is manufacturing a claim for *1071 Rene on appeal that was never advanced by him or supported by evidence in the district court.

I.

The…