                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              OCT 04 2017
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CATHY ALATORRE, an individual,                    No.    15-55882

              Plaintiff-Appellant,                D.C. No.
                                                  3:13-cv-01702-BAS-DHB
 v.

SEAN J. STACKLEY, Secretary,                      MEMORANDUM*
Department of the Navy,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Cynthia A. Bashant, District Judge, Presiding

                       Argued and Submitted August 8, 2017
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.

             1. The Navy argues that Alatorre’s bankruptcy discharge of the

district court’s cost award against her moots this appeal.1 “Article III’s ‘case-or-

controversy limitation’ on federal court jurisdiction requires a live controversy

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1
             Because the parties are familiar with the facts and the procedural
history, we do not recount them here.
between two adversaries.” United States v. Sanchez-Gomez, 859 F.3d 649, 657

(9th Cir. 2017) (en banc). If the district court’s order granting summary judgment

were to be reversed on appeal, Alatorre’s claims would proceed to trial and she

might ultimately obtain a damages award. Thus, there is a live controversy and her

appeal is not moot.

      Nor does equity counsel us against entertaining this appeal. That Alatorre

listed her cause of action against the Navy as an exempt asset in her bankruptcy

petition is consistent with the “fresh start” policy animating the Bankruptcy Code.

See Rousey v. Jacoway, 544 U.S. 320, 325 (2005). Alatorre did not gain an unfair

advantage by filing for bankruptcy; the Navy would be in the same position

whether she filed her bankruptcy petition before or after her appeal from the

district court’s judgment.

      2. “An employer is vicariously liable for an actionable hostile environment

created by a supervisor with immediate (or successively higher) authority over the

employee.” Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1183 (9th Cir. 2005)

(internal quotation marks omitted). Where harassment does not culminate in “a

significant change in employment status, such as discharge or undesirable

reassignment,” an employer may assert an affirmative defense to vicarious liability.

Davis v. Team Elec. Co., 520 F.3d 1080, 1097 (9th Cir. 2008).


                                          2
      Alatorre’s transfer to the Public Works Office (PWO) in February 2012 does

not qualify as a tangible employment action because she did not show that

Bergamini was involved in the decision to transfer her, and Alatorre’s affidavit

portrays a positive experience at the PWO. Her transfer back to the Facilities and

Maintenance Division (FMD) in May 2012 does not qualify because her stint at the

PWO was always intended to be temporary. Moreover, Bergamini and Grant were

placed on administrative leave for three weeks immediately after Alatorre filed her

informal EEO complaint. Thus, her return to the FMD lasted, at most, slightly

more than a fortnight. As for her assignment to online training courses, Alatorre

did not meet her burden to show a causal nexus between this assignment and

Bergamini’s alleged sexual harassment.

      Since no tangible employment action occurred, the Navy was entitled to

raise its affirmative defense, and it did so successfully. In response to Alatorre’s

first complaint about Bergamini, the Navy temporarily transferred her to the PWO.

The FMD held a meeting emphasizing the Navy’s zero-tolerance policy after

Alatorre returned. When Alatorre filed an informal EEO complaint, the Navy

placed Bergamini (and Grant) on administrative leave, transferred Alatorre to the

PWO for the second time, and later hired a former EEOC Administrative Law

Judge to conduct an investigation of her complaints. The Navy “exercised


                                           3
reasonable care to prevent and correct promptly any sexually harassing behavior,”

and by delaying, Alatorre “unreasonably failed” to avail herself of the available

corrective mechanisms. See Hardage, 427 F.3d at 1183–84.

      3. Alatorre did not establish a prima facie case of co-worker harassment. To

make out such a claim, she was required to show that she “was subjected to verbal

or physical conduct of a sexual nature, . . . that was unwelcome; and . . . that was

sufficiently severe or pervasive to alter the conditions of [her] employment and

create an abusive working environment.” E.E.O.C. v. Prospect Airport Servs., Inc.,

621 F.3d 991, 997 (9th Cir. 2010). The alleged behavior of Alatorre’s colleagues,

while distasteful and offensive, was almost entirely non-sexual in nature. The only

incident that bore sexual overtones was Grant’s comment about her legs. But

Alatorre did not show that this was more than an isolated incident or so grievous as

to “amount to a [discriminatory] change in the terms and conditions of

employment.” See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

      4. Alatorre did not exhaust the claim that she was “relegated to taking online

courses” in retaliation for engaging in protected activity. “Exhaustion depends

upon the ‘fit’ between the administrative claim, the investigation and any

subsequent allegations.” Greenlaw v. Garett, 59 F.3d 994, 1000 (9th Cir. 1995).

Because this form of harassment was not like or reasonably related to the


                                           4
harassment of which Alatorre complained, she was required to present it to the

EEOC.

      AFFIRMED.




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