By Ryan Borchers
PASADENA, Calif. (CN) — The Ninth Circuit refused to grant Yolo County and its sheriff summary judgment against a jailer who claims the sheriff hugged and/or kissed her more than 100 times in 12 years.
“Because a reasonable jury could find that [Sheriff Edward G.] Prieto’s conduct, particularly the alleged number and frequency of unwelcome hugs and kisses from a supervisor, was sufficient to create a hostile or abusive work environment, we reverse the grant of summary judgment,” the Ninth Circuit panel wrote in its unanimous Nov. 9 decision. (Emphasis in original.)
Victoria Zetwick claimed that Prieto’s conduct violated Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act. The district court found Prieto’s actions not severe or pervasive enough to create a hostile work environment.
But the Ninth Circuit said a jury could find otherwise.
“We hold that a reasonable jury could conclude that the differences in hugging of men and women were not, as the defendants argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex,’” the panel wrote.
The district court found that the conduct was not severe and pervasive enough, but the correct legal standard is whether the conduct was severe or pervasive enough.
The lower court also determined that Zetwick was hugged only a few times a year and never for long, but even if such a test were proper, there is a dispute as to whether this determination is accurate, the appeals court ruled.
The district court also made its ruling based on nonbinding decisions — one that was 20 years old and another 14 — and determined that hugs and kisses on the cheek are part of normal workplace behavior.
“Those decisions likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace — a decision more appropriately made by a jury,” the panel wrote.
“More importantly, in one of those decisions, the court explained that flirting, hugging, and even kissing in the workplace ‘are very ordinary things that people do and are not per se intimidating, hostile, humiliating, or offensive,’ but such conduct can, nevertheless, become unlawful when it ‘is both unwelcome and pervasive.’” (Emphasis in the original.)
Zetwick is represented by Manolo Olaso, who said he was “pleased with the court’s ruling.”
“My client and I are pleased that a unanimous panel of judges saw it our way,” Olaso said. “Unwelcome and pervasive hugs and kisses in the workplace, particularly in a large law enforcement agency, and particularly by the highest-ranking elected official in the County of Yolo Sheriff’s Department, is inappropriate conduct, and the court has given Zetwick a deserved opportunity to show that to a jury. Although it is unfortunate she endured such treatment during her career, she looks forward to vindicating her rights at trial.”
Olaso is with the Law Offices of Johnny L. Griffin III in Sacramento.
The defendants’ attorney, John Whitesides, with Angelo, Kilday & Kilduff in Sacramento, could not be reached for comment Thursday.
The panel consisted of U.S. Circuit Judges Susan Graber and Mary Murguia and District Judge Mark W. Bennett, from the District of Northern Iowa, sitting by designation.