                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       JUL 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

CYNTHIA FULLER,                                 No.   14-36110

                 Plaintiff-Appellant,           D.C. No. 1:13-cv-00035-JLQ

    v.
                                                MEMORANDUM *
IDAHO DEPARTMENT OF
CORRECTIONS; BRENT REINKE;
HENRY ATENCIO,

                 Defendants-Appellees.

                     Appeal from the United States District Court
                               for the District of Idaho
                   Justin L. Quackenbush, District Judge, Presiding

                        Argued and Submitted March 6, 2017
                                Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

         Cynthia Fuller was raped by an Idaho Department of Corrections (“IDOC”)

co-worker, Herbt Cruz, whom she had been dating. She sued the IDOC and several

supervisors, alleging violations of Title VII of the Civil Rights Act of 1964, the

Equal Protection Clause, and Idaho tort law. The district court granted summary



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
judgment to the defendants on all claims. In an opinion filed today, we vacate that

summary judgment insofar as it involved Fuller’s claim that a hostile work

environment was caused by the IDOC’s actions after she was raped. We affirm the

summary judgment with respect to Fuller’s other claims.

      1. Fuller argues that her rapes created a hostile work environment. But, the

rapes occurred outside the workplace, and after the IDOC had placed Cruz on leave

because of a criminal investigation into other non-workplace conduct. Because

Fuller does not claim that Cruz sexually harassed her in the workplace or a related

environment, or that he returned to work after the rapes, the district court properly

granted summary judgment to the IDOC on this claim. See Fuller v. City of Oakland,

47 F.3d 1522, 1527 (9th Cir. 1995) (requiring workplace conduct “sufficiently

severe or pervasive to alter the conditions of the victim’s employment” (internal

quotation marks omitted)). 1

      2.   Fuller claims that she was constructively discharged because IDOC


1
       The Ninth Circuit cases Fuller cites for the proposition that off-site conduct
can contribute to a hostile work environment involve partial workplace conduct or
conduct related to job performance. See Galdamez v. Potter, 415 F.3d 1015, 1023-
24 (9th Cir. 2005); Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th
Cir. 2002); Fuller, 47 F.3d at 1525-28. Similarly, the out-of-circuit cases that she
cites all involve environments akin to the workplace, where the employer controlled
how employees spend their off-duty time. See Lapka v. Chertoff, 517 F.3d 974, 983
(7th Cir. 2008); Doe v. Oberweis Dairy, 456 F.3d 704, 715-16 (7th Cir. 2006); Ferris
v. Delta Air Lines, Inc., 277 F.3d 128, 134-35 (2d Cir. 2001); Parrish v. Sollecito,
249 F. Supp. 2d 342, 345-46, 352 (S.D.N.Y. 2003).


                                         2
supervisors declined her request to inform the staff about a sealed protective order

she had obtained against Cruz. But, even putting aside the sealed nature of the order,

the IDOC had already removed Cruz from the workplace and responded to Fuller’s

request by informing staff that he was not permitted on the premises, directing them

to call a supervisor if he should appear. These actions did not create working

conditions “so intolerable that a reasonable person in [Fuller’s] position would have

felt compelled to resign.” Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007)

(internal quotation marks omitted).

      3. Fuller argues that she was denied paid administrative leave because of her

gender. But, it is undisputed that, for budgetary reasons, the IDOC has not approved

any request for paid administrative leave since 2008 under an administrative rule

applicable to “unusual” situations.   Fuller has not demonstrated that the IDOC’s

continued refusal to approve leave for her “unusual situation”—as opposed to leave

granted to other employees under provisions governing investigations or disciplinary

actions—was on account of her gender. See Hishon v. King & Spalding, 467 U.S.

69, 75-76 (1984) (requiring that denial of a “privilege” of employment be

discriminatory to violate Title VII); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,

1156-59 (9th Cir. 2010) (requiring evidence that similarly situated males were




                                          3
treated more favorably). 2

      4. Fuller argues that her supervisor’s actions after she reported her rapes

amounted to negligent infliction of emotional distress under Idaho law. Because she

alleges only “a series of ongoing, discrete events or conduct,” rather than a

“continuing tort,” any claim arising before November 16, 2011, is time-barred.

Cobbley v. City of Challis, 59 P.3d 959, 962-64 (Idaho 2002) (citing IDAHO CODE §

6-905). And, the district court properly concluded that the actions she alleges that

occurred during the limitations period were not unreasonable. Frogley v. Meridian

Joint Sch. Dist. No. 2, 314 P.3d 613, 624 (Idaho 2013).

      AFFIRMED.




2
       Fuller’s equal protection claim against her supervisors fails for the same
reasons. See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th
Cir. 2001) (requiring proof of gender discrimination for equal protection claim under
42 U.S.C. § 1983).

                                         4
