Lawana Porter v. California Department of Corrections

383 F.3d 1018 Lawana PORTER, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Defendant-Appellee. No. 02-16537. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 11, 2004. Filed September 10, 2004. Steven A. Hirsch and Daniel E. Jackson, Keker & Van Nest, San Francisco, CA, for the plaintiff-appellant. Bill Lockyer, Attorney General; Jacob A. Appelsmith, Senior Assistant Attorney General; Vincent J. Scally Jr., Supervising Deputy Attorney General; and Diana L. Cuomo, Deputy Attorney General, Sacramento, CA, for the defendant-appellee. Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-00-00978-FCD. Before: SCHROEDER, Chief Judge, TALLMAN, and CALLAHAN, Circuit Judges. CALLAHAN, Circuit Judge: 1 In May 2000, Lawana Porter filed a complaint pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against the California Department of Corrections ("CDC"). Porter alleged that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection of sexual advances by correctional officers Terry…

. In May 2000, Lawana Porter filed a complaint pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against the California Department of Corrections (“CDC”). Porter alleged that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection of sexual advances by correctional officers Terry Wheeler and Pete DeSantis in 1995 and 1996.

The district court granted the CDC’s motion for summary judgment, holding that (1) the temporal gap between the complaints of sexual harassment and the alleged acts of retaliation precluded Porter from showing a causal link; and (2) the alleged incidents of sexual harassment could not be considered with the allegations of retaliation for the purpose of stating a viable cause of action.

*1020 On appeal, Porter makes two primary arguments. First, she argues that the district court erred in holding as a matter of law that she could not prove her retaliation claim because too much time elapsed between her reports of harassment and the CDC’s retaliatory acts. Second, she asserts that the district court erred in holding as a matter of law that her sexual harassment claim was barred because “the…

dissenting in part.

I concur in Part IV(B) of the court’s opinion and agree that summary judgment on Porter’s claim for retaliation should be reversed and remanded. Porter has presented sufficient evidence to meet her pri-ma facie burden, and Clark County School District v. Breeden, 532 U.S. 268 , 121 S.Ct. 1508 , 149 L.Ed.2d 509 (2001), is not controlling ón the issue of causation. Because the court’s discussion of Porter’s showing of pretext under a quid pro quo claim also relates to her retaliation claim, I further agree that Porter has presented evidence of pretext sufficient to defeat summary judgment. I agree that the district court erred in finding Porter’s sexual harassment claims statutorily barred because there is a genuine issue of material fact relating to the date of alleged discrete discriminatory acts.

I write separately because Porter fails to make a prima facie showing of a quid pro quo tangible employment action claim where the alleged harassment by two coworkers occurred when they were not her supervisors and years passed before one of the coworkers was promoted to a position where he had some authority over her. I therefore respectfully dissent from Part…