                                                                              FILED
                              NOT FOR PUBLICATION                              JUN 19 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


DIANE MAGGI,                                     No. 13-15479

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00566-NVW

  And
                                                 MEMORANDUM*
EUGENE MAGGI, Jr.,

              Plaintiff,

  v.

CREATIVE HEALTH CARE SERVICES,
INC., DBA Sunrise Health and Hospice,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                           Argued and Submitted May 15, 2015
                                San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ and CLIFTON, Circuit Judges and DUFFY,** District Judge.

      Plaintiff Diane Maggi appeals the district court’s grant of summary

judgment in favor of Defendant Creative Health Care Services, Inc. as to Maggi’s

Title VII hostile work environment and retaliation claims. We affirm in part,

reverse in part, and remand to the district court for further proceedings.

      We affirm the district court’s grant of summary judgment as to Maggi’s

retaliation claim. Maggi failed to present evidence raising a genuine issue of

material fact as to whether Creative Health Care was the but for cause of Shirif’s

state court defamation lawsuit against Maggi. Shirif filed the lawsuit in his

personal capacity, and Maggi’s evidence does not create a triable issue of fact as to

whether Creative Health Care was the moving force behind Shirif’s defamation

state court action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525

(2013) (holding that a plaintiff must prove that “the harm would not have occurred

in the absence of – that is, but for – the defendant’s conduct” (internal quotation

marks omitted)).

       We reverse the district court’s grant of summary judgment as to Maggi’s

hostile work environment claim. The district court concluded that summary



       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

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judgment was warranted regardless of whether Maggi advanced a vicarious

liability or negligence theory.

      We first note that Maggi’s evidence of Shirif’s statements and physical

touching are sufficient to raise a genuine issue of material fact as to whether or not

Shirif’s conduct created a hostile work environment. See Ellison v. Brady, 924

F.2d 872, 879-81 (9th Cir. 1991); Draper v. Coeur Rochester, Inc., 147 F.3d 1104,

1108 (9th Cir. 1998).

      Regarding the vicarious liability theory, assuming without deciding that

Shirif was Maggi’s supervisor,1 Maggi raised genuine issues of material fact as to

Creative Health Care’s affirmative defense under Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775

(1998). A reasonable jury could find that Creative Health Care did not exercise

“reasonable care to prevent and correct promptly any sexually harassing behavior.”

Burlington, 524 U.S. at 765. There are disputed issues of material fact regarding

the existence of Shirif’s alleged sexual harassment of other former employees and

whether or not Creative Health Care properly addressed those harassment



      1
         Because the district court assumed that Shirif was Maggi’s supervisor and
the parties have not fully briefed this issue on appeal, we leave open the issue of
whether or not Shirif was in fact Maggi’s supervisor to be resolved by further
proceedings upon remand.

                                          3
complaints. There are also disputed issues of material fact as to whether or not

Maggi “unreasonably” failed to complain or take advantage of Creative Health

Care’s offers to correct the situation. Id. For instance, there are disputes over the

nature of Creative Health Care’s offer, or offers, to transfer Maggi to the home

office, including whether or not the offer “adequately addressed the problem of

harassment.” Dawson v. Entek Int’l, 630 F.3d 928, 940 (9th Cir. 2011).

      We are not convinced by Maggi’s argument that Creative Health Care is

precluded from asserting an affirmative defense under Ellerth and Faragher on the

basis that Maggi was constructively discharged. There is no evidence that Shirif

was responsible for the alleged official acts of attempting to transfer Maggi to the

home office or the letter stating her employment would be terminated if she did not

return to work. See Pa. State Police v. Suders, 542 U.S. 129, 148 (2004)

(employer may assert Ellerth/Faragher defense if harassing supervisor did not

perform an official act to effect discharge). Further, constructive discharge without

an underlying official act does not itself constitute an official act that would

preclude the affirmative defense. Id. at 148.

      Regarding the negligence theory, Maggi raised genuine issues of material

fact as to whether or not Creative Health Care knew or should have known of

Shirif’s alleged harassment. See Swinton v. Potomac Corp., 270 F.3d 794, 803

                                           4
(9th Cir. 2001). Additionally, for the same reasons explained in the vicarious

liability discussion, Maggi raised genuine issues of material fact as to whether or

not Creative Health Care’s remedial measures were “reasonably calculated to end

the harassment.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119-20 (9th Cir.

2004).

      Each party to bear its own costs.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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