Employee Should be Permitted to Claim Multiyear Sexual Harassment Was One Unlawful Practice; Quid Pro Quo Harassment Not Limited to Formal Supervisors

The plaintiff in this case worked as a California corrections officer.??? Beginning in 1995, a superior officer repeatedly asked her out.?? She declined. ?When he persisted, she reported him. He began retaliating against her.? ?After she reported the officer to her Guild, the Guild representative started sexually harassing her too. The? ?Guild? ?representative? ?subsequently? ?was promoted to her superior.? ?He then retaliated against her too. ?She later experienced additional sexual harassment.??? She eventually filed an internal harassment complaint and went to the EEOC in 1999.?? The district court dismissed her harassment claim on the basis that the harassment was not one single unlawful practice and the retaliation claim on the basis that too much time had elapsed between the protected activity and the retaliation. ?The Ninth Circuit reversed. ?Although the court took an overly broad approach to what acts? are? discrete? and? therefore? not? actionable under the continuing violation doctrine set forth in Morgan, it still concluded that a jury could find the plaintiff was subjected to one hostile work environment over several years.?? The court also ruled that the officer could state a quid pro quo claim?? against? ?the? ?Guild? ?representative? ?even though he was not in a position to retaliate at the time of the unlawful sexual proposition.?? Judge Tallman?? dissented?? from?? this?? portion?? of?? the opinion, and the majority?s reasoning that it is enough that the Guild representative later became her? supervisor? is? questionable.?? ?It? would? have been more accurate to view the ?quid pro quo? conduct as supervisor retaliation for a prior refusal to submit.? ?The entire panel agreed that an employer?s deviation from its regular procedures is sufficient evidence of pretext to survive summary judgment.?? As for retaliation, all three judges agreed that a causal link between protected activity and an adverse action cannot be ruled out as a matter of law based on the passage of time alone. ?Porter v. California Dep?t of Corrections, No. 02-16537 (09/10/04; Callahan, Schroeder, Tallman).