                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 24 2012

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




                            FOR THE NINTH CIRCUIT



LINDSEY TOFSRUD,                                 No. 11-35366

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00090-JLQ

  v.
                                                 MEMORANDUM *
JOHN E. POTTER, Postmaster General of
the United States; DAVID KENNEDY,
individually and as a marital community;
JANE DOE KENNEDY, individually and
as a marital community; UNITED
STATES OF AMERICA,

              Defendants - Appellees.



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

                        Argued and Submitted July 10, 2012
                               Seattle, Washington

Before: SCHROEDER, REINHARDT, and M. SMITH, Circuit Judges.

       Lindsey Tofsrud appeals the district court’s order granting summary

judgment to her employer, John Potter, Postmaster General of the United States, on


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Tofsrud’s Title VII hostile work environment claim. The district court concluded

Tofsrud had exhausted her administrative remedies. It also concluded she had not

established a prima facie claim of a hostile work environment. We may affirm on

any ground supported by the record. See Townsend v. Univ. of Alaska, 543 F.3d

478, 485 (9th Cir. 2008).

      With respect to exhaustion, Tofsrud initiated contact with an E.E.O.C.

counselor within 45 days of the triggering event for the constructive discharge

claim she alleged in the district court. Although she has abandoned that claim on

appeal, it is closely related to her hostile work environment claim. The district

court correctly ruled that Tofsrud exhausted her administrative remedies. See

Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003); 29 C.F.R. § 1614.105(a).

      A Title VII plaintiff establishes a prima facie hostile work environment

claim by showing verbal or physical conduct of a sexual nature, that was

unwelcome, and that was sufficiently severe or pervasive so as to alter the

conditions of employment. See Craig v. M & O Agencies, Inc., 496 F.3d 1047,

1055 (9th Cir. 2007). It is uncontested that the supervisor’s conduct was

unwelcome and subjectively offensive. The district court erred in concluding the

conduct was not of a sexual nature, however. Tofsrud made a showing that her

supervisor made verbal and physical sexual overtures, and there was no contrary


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showing. The conduct included threats of firing, and was objectively offensive.

Because he was a supervisor, his statements could have raised a reasonable fear

that sexual harassment had become a condition of her continued employment.

Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000); see also E.E.O.C.

v. Prospect Airport Servs., 621 F.3d 991, 999 (9th Cir. 2010) (distinguishing

coworkers and supervisors).

      Even though Tofsrud has made out a prima facie claim, the employer

contends it is nonetheless entitled to summary judgment because it can establish an

affirmative defense under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998),

and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The record shows the

employer adopted an anti-harassment policy with a mechanism for reporting,

investigating, and remedying complaints—and followed that policy in this case.

The employer therefore acted reasonably in preventing and correcting harassment.

See Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001).

      Tofsrud did not use the employer’s available corrective measures. She

contends only that she did not receive information at her orientation on how to

report harassment by a supervisor. Not only were the reporting instructions

available in the workplace, however, but Tofsrud had previously gone over her

supervisor’s head to a higher manager in order to report a workplace grievance. In


                                         3
addition, she delayed reporting the harassment until days before resigning, and she

then refused the employer’s offer to reassign her to a comparable position within

the same workplace.

      Our law is intended to encourage employers to provide, and employees to

use, remedies within the workplace, so an employee may not unreasonably fail to

use those remedies. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 805–08.

Tofsrud acted unreasonably in not taking advantage of the employer’s preventive

and remedial mechanism. See Montero v. Agco Corp., 192 F.3d 856, 863 (9th Cir.

1999) (employee acted unreasonably if she had notice of the anti-harassment

policy and had previously talked with a manager, but nonetheless delayed

reporting). As the employer has carried its burden on the affirmative defense, it

remains entitled to summary judgment.

      AFFIRMED.




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