                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LYNN SORENSON,                                   No.   15-35718

              Plaintiff-Appellant,               D.C. No. 1:14-cv-00221-BLW

 v.
                                                 MEMORANDUM*
CITY OF CALDWELL, a political
subdivision of the State of Idaho and CITY
OF CALDWELL DEPARTMENT OF
PARKS AND RECREATION,

              Defendants-Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                        Argued and Submitted June 15, 2017
                               Seattle, Washington

Before: BYBEE, M. SMITH, and CHRISTEN, Circuit Judges.

      Lynn Sorenson appeals the district court’s order granting summary judgment

in favor of defendants City of Caldwell and City of Caldwell Department of Parks

and Recreation (collectively, Caldwell), on his claims for constructive discharge


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and retaliatory discharge under the Age Discrimination in Employment Act

(ADEA) and the Idaho Human Rights Act (IHRA).1 We have jurisdiction under 28

U.S.C. § 1291 and “review de novo a district court’s grant of summary judgment.”

Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999). We affirm in part,

reverse in part, and remand.

1.    The district court erred by granting summary judgment to Caldwell on

Sorenson’s constructive discharge claim. Sorenson presented evidence that: (1) he

was subjected to years of age-related harassment by a supervisor, Ken Wheeler; (2)

Caldwell officials did not act upon Sorenson’s regular complaints about the

harassment; (3) Wheeler violated a directive not to communicate directly with

Parks employees like Sorenson, by yelling age-related comments and striking

another coworker in front of Sorenson; (4) Caldwell did not terminate Wheeler

after this incident, even though a Caldwell official’s comments acknowledged that

Wheeler might act violently again; and (5) Sorenson resigned one month after

reporting this incident and four days after he learned Wheeler would still be

working near Sorenson and in a similar position to the one Wheeler held when he

first began harassing Sorenson. Taking these facts in the light most favorable to


      1
              The respective analyses of Sorenson’s constructive discharge and
retaliatory discharge claims are the same under the ADEA and the IHRA. See
Hatheway v. Bd. of Regents of Univ. of Idaho, 310 P.3d 315, 323 (Idaho 2013).
                                          2
Sorenson, we conclude that there are triable issues of fact related to whether

Sorenson’s “working conditions [became] so intolerable that a reasonable person

in the employee’s position would have felt compelled to resign.”2 See Pa. State

Police v. Suders, 542 U.S. 129, 141 (2004); Nolan v. Cleland, 686 F.2d 806, 813

(9th Cir. 1982) (“Historic discrimination over a number of years [may] provide[]

the necessary aggravating factor . . . to justify a constructive discharge.”). The

constructive discharge inquiry “is normally a factual question for the jury.”

Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996) (citation

omitted). We therefore reverse and remand the district court’s order granting

summary judgment to Caldwell on Sorenson’s constructive discharge claim.

2.    The district court did not err by granting summary judgment to Caldwell on

Sorenson’s retaliatory discharge claim, because he did not raise a triable issue of

fact regarding a causal link between his involvement in a protected activity and an

adverse employment action. See Brooks v. City of San Mateo, 229 F.3d 917, 928

(9th Cir. 2000) (concluding a plaintiff must show the following for a prima facie


      2
             The district court relied on Montero, 192 F.3d at 861, but that case is
distinguishable. Here, Sorenson left only one month after the last incident of
allegedly harassing behavior and four days after he learned that Wheeler would not
be terminated, and Sorenson testified that he had complained for years to Caldwell
officials about Wheeler, to no avail. After witnessing Wheeler assault another
employee without being terminated, a reasonable co-worker in Sorenson’s position
might have found the working environment intolerable.
                                           3
case of retaliation: “(1) involvement in a protected activity, (2) an adverse

employment action and (3) a causal link between the two”). Sorenson did not

allege facts showing that his age-discrimination complaint was a but-for cause of

any adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.

Ct. 2517, 2534 (2013) (holding the third element of the test requires a plaintiff to

show “that his or her protected activity was a but-for cause of the alleged adverse

action by the employer.”); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1189 (9th

Cir. 2005), amended on denial of reh’g, 436 F.3d 1050 (9th Cir. 2006) (concluding

that “‘snide remarks’ and threats, such as ‘your number’s up’ and ‘don’t forget

who got you where you are,’” are not sufficiently serious to constitute retaliatory

action); see also Brooks, 229 F.3d at 928 (“[O]nly non-trivial employment actions

that would deter reasonable employees from complaining about Title VII violations

will constitute actionable retaliation.”). We affirm the district court’s order

granting summary judgment to Caldwell on Sorenson’s retaliatory discharge claim.

      Each party shall bear its own costs.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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