                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 19 2015

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

KATHRYN E NIXON,                                 No. 12-35276

              Plaintiff - Appellant,             D.C. No. 3:11-cv-05076-BHS

  v.
                                                 MEMORANDUM*
CATHOLIC HEALTH INITIATIVES,

              Defendant,

  And

ATIF MIAN and FRANCISCAN
HEALTH SYSTEM,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                      Argued and Submitted February 3, 2015
                               Seattle, Washington

Before: FISHER, BEA, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff–appellant Kathryn E. Nixon sued defendant–appellee Franciscan

Health Services (FHS) for sex discrimination and constructive discharge under

Title VII, 42 U.S.C. § 2000e-2, and Washington discrimination law, R.C.W.

49.60.180. Nixon also sued defendant–appellee Dr. Atif Mian for battery under

Washington law. The district court granted FHS’s motion for summary judgment

and declined to exercise supplemental jurisdiction over Nixon’s state-law battery

claim against Dr. Mian. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

      1. Nixon sued FHS for sex discrimination under a theory of hostile work

environment, alleging that FHS “fail[ed] to take prompt and appropriate remedial

action in response to plaintiff Nixon’s complaint of hostile work environment

sexual harassment.” Sexual harassment occurs where the plaintiff was subjected to

a hostile work environment; i.e., where she “was subjected to verbal or physical

harassment that was sexual in nature, . . . was unwelcome and . . . was sufficiently

severe or pervasive to alter the conditions of the plaintiff’s employment.” Dawson

v. Entek Int’l, 630 F.3d 928, 937–38 (9th Cir. 2011). “[E]mployers are liable for

failing to remedy or prevent a hostile or offensive work environment of which

management-level employees knew, or in the exercise of reasonable care should

have known.” Id. at 940 (alteration in original) (quoting Ellison v. Brady, 924 F.2d




                                          2
872, 881 (9th Cir. 1991)).1 An employer “may nonetheless avoid liability for such

harassment if it undertook remedial measures ‘reasonably calculated to end the

harassment.’” Id. (quoting Ellison, 924 F.2d at 882).

      We hold that FHS responded adequately to Nixon’s claims as a matter of

law. Our analysis proceeds in two steps. First, we consider FHS’s immediate

response to Nixon’s complaint; then, we consider the permanent remedial steps

FHS took after concluding its investigation. See Swenson v. Potter, 271 F.3d 1184,

1192 (9th Cir. 2001).

      a. When Nixon reported Dr. Mian’s alleged conduct to FHS, FHS promptly

initiated an investigation. As part of the investigation, FHS interviewed witnesses,

formally confronted Dr. Mian with the allegations, and encouraged Nixon to take

steps necessary to ensure her own comfort and health, including FHS paying for

the administrative leave Nixon decided to take while the investigation was

ongoing. We conclude that FHS’s immediate response was adequate. See id. at

1193–94 (holding that conducting a prompt investigation and separating the

complainant from the alleged harasser as much as practicable were reasonable,

immediate responses to a sexual harassment complaint).



      1
         Arno v. Club Med Inc., 22 F.3d 1464, 1472 (9th Cir. 1994), is
distinguishable because the alleged conduct there was committed outside the
United States and thus could not give rise to liability under Title VII even had it
created a hostile work environment.

                                          3
      b. FHS’s investigation was “inconclusive,” that is, FHS could not conclude

that Dr. Mian had engaged in inappropriate action or that disciplinary action was

warranted. FHS nevertheless invited Nixon to meet with its human-resource

department to discuss alternative working arrangements that would limit Nixon’s

possible encounters with Dr. Mian, even offering her the possibility of working at

other facilities in the area. We conclude that FHS took adequate permanent steps

to remedy the alleged harassment. See id. at 1196 (holding that employers need

not “impose discipline even if they do not find what they consider to be sufficient

evidence of harassment”). Nixon’s hostile work environment claims under Title

VII and Washington discrimination law therefore fail.

      2. Our holding that FHS adequately responded to Nixon’s sexual

harassment complaint also disposes of her constructive discharge claim. Whether

or not the conditions Nixon experienced at FHS caused her to resign, Nixon

“effectively petitioned” FHS for relief from them before terminating her

employment. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465–66 (9th

Cir. 1994).

      3. Because the district court properly dismissed Nixon’s Title VII claim

against FHS – the only claim “over which it ha[d] original jurisdiction,” 28 U.S.C.

§ 1367(c)(3) – it did not abuse its discretion in declining to exercise supplemental

jurisdiction over Nixon’s state law battery claim against Dr. Mian.


                                          4
AFFIRMED.




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