Metropolitan News-Enterprise


Wednesday, December 2, 2020


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Ninth Circuit Won’t Revive Woman’s Claim of Firing for Reporting Sexual Harassment


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment against a woman who contends that the termination of her employment with the federal government, which came one day after she submitted a memo complaining of sexual harassment by her supervisor, was in violation of Title VII of the Civil Rights Act of 1964.

A three-judge panel said Monday, in a memorandum opinion, that the plaintiff, Laura Leskinen, failed to overcome the government’s evidence as to a nondiscriminatory basis for firing her.

Leskinen had gone to work in 2016 as a student trainee for the National Agricultural Statistical Service (“NASS”), a unit of the U.S. Department of Agriculture (“USDA”). She was stationed in the NASS’s Pacific Regional Office in Sacramento, serving California, Hawaii, and Nevada.

The plaintiff maintained that she had been promised a permanent post after successfully performing as an intern, under the U.S. Office of Personnel Management’s “Pathways” program, and completing 640 hours on the job.

In the complaint she filed in the District Court for the Eastern District of California, Leskinen alleged that on or about Dec. 12, 2016, she placed a memo on the desk of then-NASS Field Office Director Christine Messer complaining of persistent sexual advances by Deputy Director Curt Stock, which she said she had resisted. That memo, she averred, promptly resulted in her discharge.

Pretext Asserted

The employment action, NASS insisted, was the result of Leskinen having dropped a college course, thus no longer carrying a half load—a minimum job requirement. Leskinen countered that the explanation was pretextual, saying that she had received a go-ahead from the agency to drop the course.

She sued under Title VII claim for sexual harassment and retaliation, including the USDA, Messer, and Stock as defendants. Those defendants moved for an order dismissing them, which District Court Judge Troy L. Nunley on Sept. 13, 2018, granted without leave to amend, adopting the findings and recommendation of Magistrate Judge Kendall J. Newman.

Newman had on June 14, 2018, pointed out:

“Under Title VII, claims of discrimination and retaliation in federal employment may only be brought against the ‘head of the department, agency or unit’ in his or her official capacity…Here, the only proper defendant for plaintiff’s Title VII claim is Sonny Perdue, in his official capacity as the Secretary of the USDA.”

The action proceeded against Perdue; Newman on June 21, 2019, recommended that summary judgment be ordered in favor of that remaining defendant; on Aug. 26, 2019, Nunley so ordered.

Panel’s Decision

A three-judge Ninth Circuit panel, comprised of Senior Judges Diarmuid F. O’Scannlain, N. Randy Smith, and Stephen S. Trott, said on Monday that “[e]ven assuming that Leskinen has established a prima facie claim of retaliation,” which shifts the burden to the employer to justify its action, “the Secretary has produced evidence of a legitimate, non-retaliatory reason for her termination.”

Leskinen, “by failing to remain at least a half-time student at her college,” the panel wrote, “was simply ineligible to continue participating in the Pathways program.”

The judges noted that Perdue’s evidence “supports the conclusion that Messer had begun to consider whether Leskinen needed to be terminated for this reason” before she received Leskinen’s memo.

Their opinion continues:

“The burden thus shifts to Leskinen to show that the stated justification is pretextual….Summary judgment was appropriate because Leskinen failed to identify evidence in the record that could reasonably do so….Contrary to Leskinen’s assertions, the record does not reasonably support the conclusion that her supervisors had given their approval for her to drop below half-time status at her college or that they had promised to promote her out of the internship program once she completed 640 hours of work.”

The panel also said that “Leskinen cannot prevail on her claim for quid pro quo sexual harassment because she has not identified any tangible employment action that Stock allegedly took against her as a result of her rejection of his alleged sexual advances” and necessarily loses on a claim of a hostile work environment, caused by coworkers, because she failed to point to affronts that were severe or pervasive.

Also rejected was the contention by Leskinen, who was self-represented, that the District Court’s practice of routing cases to a magistrate judge where the plaintiff does not have a lawyer denies equal protection. The panel declared that Leskinen “has not identified any authority to suggest that pro se plaintiffs are a suspect class,” adding that “the decision to refer such matters to magistrate judges is rationally related to the court’s legitimate interest in efficient docket management.”

Nunley did not abuse his discretion in denying the plaintiff’s request to hold off on axing her action pending an opportunity for discovery, the opinion says, setting forth that the judge, for purposes of summary judgment, “accepted Leskinen’s factual allegations as true—including those where she disputed the claims of key witnesses.” Accordingly, the opinion explains, “Leskinen’s hope generally to corroborate such allegations would not have affected the court’s analysis of the merits of her claims,” adding:

“Leskinen’s hope to depose witnesses so that they might contradict their own declarations is not enough to demonstrate that summary judgment was premature.”

The case is Leskinen v. Perdue, 19-17390.


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