                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 07 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANN ALIOTO, AKA Ann Alito,                       No. 11-15139

              Plaintiff - Appellant,             D.C. No. 2:09-cv-02433-SMM

  v.
                                                 MEMORANDUM *
ASSOCIATED CREDITORS
EXCHANGE INCORPORATED, an
Arizona Corporation, AKA Receivables
Management Consultants, Inc.,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: McKEOWN and N.R. SMITH, Circuit Judges, and BENITEZ, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
      Ann Alioto appeals the district court’s grant of summary judgment in favor

of Associated Creditors Exchange, Inc. (“ACE”), dismissing her claims under Title

VII of the Civil Rights Act of 1964, as amended, for hostile work environment and

retaliation, and her claim for intentional infliction of emotional distress under

Arizona law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in

part, reverse in part, and remand.1

      The district court did not err in finding that Alioto failed to establish a prima

facie case with regard to her hostile work environment claim. The conduct that

Alioto complained of was not “sufficiently severe or pervasive to alter the

conditions of [her] employment and create an abusive working environment.” See

EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 997 (9th Cir. 2010). Rather,

the conduct was episodic at best, which is insufficient to establish a prima facie

case. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir.

2005) (“Simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment.” (internal quotation marks omitted)). There was no

evidence of widespread pornography. Moreover, when Alioto’s coworker showed



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our disposition.

                                           2                                        11-15139
her a pornographic picture, ACE took corrective action. Finally, another

coworker’s comment that he “like[s] older women” does not rise to the level

necessary to withstand summary judgment, and the second incident involving this

coworker did not occur until months later.

      On the other hand, the district court erred in granting summary judgment as

to Alioto’s retaliation claim. First, Alioto stated a prima facie claim. A reasonable

jury could find that Alioto established a causal link between her protected activity

and the termination of her employment, as her employment was terminated two

hours after she complained about her coworker’s behavior. See Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“[C]ausation can be inferred

from timing alone where an adverse employment action follows on the heels of

protected activity.”). Second, there is a genuine issue of pretext, due to the close

temporal proximity between Alioto’s complaint and the termination of her

employment as well as evidence that ACE’s disciplinary policy for failure to meet

no-deficit quotas was applied arbitrarily. See Dawson v. Entek Int’l, 630 F.3d 928,

937 (9th Cir. 2011) (“In some cases, temporal proximity can by itself constitute

sufficient circumstantial evidence of retaliation for purposes of . . . the showing of

pretext.”); Bell v. Clackamas Cnty., 341 F.3d 858, 866 (9th Cir. 2003) (genuine

issue of pretext where the employee presents evidence of temporal proximity as


                                           3                                    11-15139
well as other circumstantial evidence of pretext). We acknowledge ACE’s position

that it intended to terminate Alioto before the last incident; however, we cannot

weigh the evidence on summary judgment.

      Finally, with respect to Alioto’s intentional infliction of emotional distress

claim, the district court did not err in finding that the conduct complained of was

not extreme and outrageous. Alioto has not shown that the work environment at

ACE, ACE’s alleged failure to investigate Alioto’s complaints, or ACE’s

termination of her employment was “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.” See Johnson v.

McDonald, 3 P.3d 1075, 1080 (Ariz. Ct. App. 1999) (internal quotation marks

omitted).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                          4                                     11-15139
