Diane Maggi v. CREATIVE HEALTH CARE SERVICES, INC., DBA Sunrise Health and Hospice

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANE MAGGI,
Plaintiff - Appellant,
And
EUGENE MAGGI, Jr.,
Plaintiff,
v.
CREATIVE HEALTH CARE SERVICES,
INC., DBA Sunrise Health and Hospice,
Defendant - Appellee.
No. 13-15479
D.C. No. 2:12-cv-00566-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 15, 2015
San Francisco, California
FILED
JUN 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: PAEZ and CLIFTON, Circuit Judges and DUFFY,** District Judge.
Plaintiff Diane Maggi appeals the district court’s grant of summary
judgment in favor of Defendant Creative Health Care Services, Inc. as to Maggi’s
Title VII hostile work environment and retaliation claims. We affirm in part,
reverse in part, and remand to the district court for further proceedings.
We affirm the district court’s grant of summary judgment as to Maggi’s
retaliation claim. Maggi failed to present evidence raising a genuine issue of
material fact as to whether Creative Health Care was the but for cause of Shirif’s
state court defamation lawsuit against Maggi. Shirif filed the lawsuit in his
personal capacity, and Maggi’s evidence does not create a triable issue of fact as to
whether Creative Health Care was the moving force behind Shirif’s defamation
state court action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525
(2013) (holding that a plaintiff must prove that “the harm would not have occurred
in the absence of – that is, but for – the defendant’s conduct” (internal quotation
marks omitted)).
We reverse the district court’s grant of summary judgment as to Maggi’s
hostile work environment claim. The district court concluded that summary
** The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
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judgment was warranted regardless of whether Maggi advanced a vicarious
liability or negligence theory.
We first note that Maggi’s evidence of Shirif’s statements and physical
touching are sufficient to raise a genuine issue of material fact as to whether or not
Shirif’s conduct created a hostile work environment. See Ellison v. Brady, 924
F.2d 872, 879-81 (9th Cir. 1991); Draper v. Coeur Rochester, Inc., 147 F.3d 1104,
1108 (9th Cir. 1998).
Regarding the vicarious liability theory, assuming without deciding that
Shirif was Maggi’s supervisor, 1 Maggi raised genuine issues of material fact as to
Creative Health Care’s affirmative defense under Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775
(1998). A reasonable jury could find that Creative Health Care did not exercise
“reasonable care to prevent and correct promptly any sexually harassing behavior.”
Burlington, 524 U.S. at 765. There are disputed issues of material fact regarding
the existence of Shirif’s alleged sexual harassment of other former employees and
whether or not Creative Health Care properly addressed those harassment
1 Because the district court assumed that Shirif was Maggi’s supervisor and
the parties have not fully briefed this issue on appeal, we leave open the issue of
whether or not Shirif was in fact Maggi’s supervisor to be resolved by further
proceedings upon remand.
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complaints. There are also disputed issues of material fact as to whether or not
Maggi “unreasonably” failed to complain or take advantage of Creative Health
Care’s offers to correct the situation. Id. For instance, there are disputes over the
nature of Creative Health Care’s offer, or offers, to transfer Maggi to the home
office, including whether or not the offer “adequately addressed the problem of
harassment.” Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011).
We are not convinced by Maggi’s argument that Creative Health Care is
precluded from asserting an affirmative defense under Ellerth and Faragher on the
basis that Maggi was constructively discharged. There is no evidence that Shirif
was responsible for the alleged official acts of attempting to transfer Maggi to the
home office or the letter stating her employment would be terminated if she did not
return to work. See Pa. State Police v. Suders, 542 U.S. 129, 148 (2004)
(employer may assert Ellerth/Faragher defense if harassing supervisor did not
perform an official act to effect discharge). Further, constructive discharge without
an underlying official act does not itself constitute an official act that would
preclude the affirmative defense. Id. at 148.
Regarding the negligence theory, Maggi raised genuine issues of material
fact as to whether or not Creative Health Care knew or should have known of
Shirif’s alleged harassment. See Swinton v. Potomac Corp., 270 F.3d 794, 803
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(9th Cir. 2001). Additionally, for the same reasons explained in the vicarious
liability discussion, Maggi raised genuine issues of material fact as to whether or
not Creative Health Care’s remedial measures were “reasonably calculated to end
the harassment.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119-20 (9th Cir.
2004).
Each party to bear its own costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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