Ninth Circuit Reverses Favorable Employer Ruling in Las Vegas Sexual Harassment Case

Volume 6, Issue 1
January 12, 2007

In August 2004, Summerlin's Home Depot store received summary judgment from federal Judge Kent J. Dawson in a sexual harassment/retaliation case. That favorable and logical decision, however, was reversed in part by the Ninth Circuit Court of Appeals on December 4, 2006. While the Ninth Circuit Court affirmed the Judge's decision as to the retaliation claim, it determined that the sexual harassment claim should be tried to a jury. Miscimarra v. Home Depot U.S.A., Inc., No. 04-17021, 2006 WL 3486995 (9th Cir. Dec. 4, 2006) (unpublished).

Fred Miscimarra was hired by Summerlin's Home Depot store during its opening in April 2000. He contended that during his six weeks of employment, he was subjected to a hostile work environment from his female supervisor. Specifically, he alleged that his supervisor consistently referred to him as "stud boy," "stud man," and "you big strong man," that she brushed up against his crotch three or four times, brushed sawdust out of his hair once, and touched his chest or moustache three or four times. Miscimarra contended that when he complained to the assistant manager, he was terminated.

Judge Dawson granted summary judgment for the Home Depot, finding that the alleged sexual conduct was not sufficiently severe or pervasive to constitute actionable sexual harassment. He explained that the touching was not severe or physically threatening, that the majority of the conduct was merely offensive utterances, and that the conduct did not unreasonably interfere with Miscimarra's work performance. The Ninth Circuit Court disagreed. Noting that the conduct was sexual and unwelcome, the Court determined, without further comment, that Miscimarra had presented sufficient evidence for a jury to determine whether his supervisor's conduct was sufficiently severe or pervasive to create an abusive work environment.

While returning the case for trial on the sexual harassment claim, the Ninth Circuit Court affirmed Judge Dawson's decision on the retaliation claim. The Court accepted the Home Depot's legitimate, non-discriminatory reason for Miscimarra's discharge - namely, that he was selected for a reduction-in-force along with other employees because he had the least hardware experience in the department. The Court determined that no reasonable jury could conclude that Home Depot retaliated against Miscimarra because there was no evidence that the ultimate decision-maker who selected him for the reduction-in-force had any knowledge of his complaint of sexual harassment.

This case demonstrates the balance courts employ to determine whether a claim is sufficiently strong to reach a jury and how easily a favorable employer decision can be overturned by the Ninth Circuit Court. The Court seemingly determined that six weeks of unwelcome, but relatively mild, sexual harassment could be enough for a jury to find a violation of the law, despite other Ninth Circuit cases where more severe conduct has resulted in a judgment for the employer. Kamer Zucker Abbott will continue to monitor this case to determine whether it reaches a jury and whether such a jury agrees with the Ninth Circuit Court.

The full text of the Ninth Circuit's opinion can be found at:

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