                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 29 2013

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

JULIE M. JOKI,                                   No. 12-35413

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00849-PA

  v.
                                                 MEMORANDUM*
ROGUE COMMUNITY COLLEGE; et
al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                      Argued and Submitted October 7, 2013
                                Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Julie Joki appeals from the district court’s grant of Defendants-Appellees’

motions for summary judgment on her claims of gender discrimination and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-
retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in

part and reverse and remand in part.

      Both parties agree that the district court accurately calculated the relevant

statutes of limitations for Joki’s claims under Title VII of the Civil Rights Act, 42

U.S.C. § 2000e, Oregon state law, and 42 U.S.C. § 1983. In applying these

limitations periods, we are guided by the Supreme Court’s holding that “discrete

discriminatory acts are not actionable if time barred, even when they are related to

acts alleged in timely filed charges,” while “a hostile work environment claim . . .

will not be time barred so long as all acts which constitute the claim are part of the

same unlawful employment practice and at least one act falls within the time

period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 102, 122 (2002)

(addressing Title VII claims); see also Carpinteria Valley Farms, Ltd. v. Cnty. of

Santa Barbara, 344 F.3d 822, 829 (9th Cir. 2003) (applying Morgan to § 1983

action based on discrete acts).

      The district court correctly granted summary judgment on Joki’s Title VII

and state law claims. Joki relies on Michael Laam’s observation of her October 5,

2006 class as evidence of discrimination and retaliation. But there is no evidence

that this event was either a discrete act of discrimination or retaliation or an act

contributing to a hostile work environment. Defendants-Appellees presented
                                         -3-
evidence that Laam observed Joki’s class after receiving several student

complaints. Joki has failed to produce rebuttal evidence that similarly situated

male employees were treated differently or that Laam acted in retaliation. See

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) (holding

that where the defendant in a Title VII suit proves by a preponderance of the

evidence the existence of legitimate reasons to explain its actions, the burden is on

the plaintiff to prove by a preponderance of the evidence the reasons offered by the

defendant were not its true reasons, but were a pretext for discrimination).

      Furthermore, Laam’s classroom observation does not support a hostile work

environment claim because there is no evidence it was part of an unlawful

employment practice rather than an ordinary and reasonable response to student

grievances. Nor is there evidence that the observation created or contributed to an

atmosphere so intolerable as to make Joki’s resignation a constructive discharge.

See Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (holding that

constructive discharge occurs when “working conditions [are] so intolerable that a

reasonable person would have felt compelled to resign”). Joki also argues that her

heavy workload provides support for her claims, but Defendants-Appellees

presented evidence that all instructors received the same fifteen-unit workload.
                                          -4-
While Joki complains that her classes were more difficult, the record does not

demonstrate any disparity in workload.

      Although the district court properly granted summary judgment on Joki’s

Title VII and state law claims, it erred in granting summary judgment on her

§ 1983 equal protection claim. As the district court recognized, the limitations

period for this claim stretches back further than the limitations periods for her other

claims and encompasses two additional incidents, Verne Underwood’s “shunning”

of Joki after a meeting on September 24, 2006 and Galyn Carlile’s hand gesture at

a faculty orientation on September 25, 2006. This conduct need not be

independently actionable in order for Joki to withstand summary judgment on her

hostile work environment theory, because “[s]uch claims are based on the

cumulative effect of individual acts.” Morgan, 536 U.S. at 115 (the unlawful

employment practice at issue in hostile environment claims “cannot be said to

occur on any particular day,” but rather “occurs over a series of days or perhaps

years, and in direct contrast to discrete acts, a single act of harassment may not be

actionable on its own”).
                                          -5-
      Viewed in context and in the light most favorable to Joki, as we are required

to do, see Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir. 2005), there is

a triable issue of fact regarding whether Underwood’s and Carlile’s actions were

part of a hostile work environment created by otherwise time-barred conduct and

continuing into the limitations period. Our task is to determine whether these acts

are part of preexisting actionable hostile work environment. Morgan, 536 U.S. at

120. These incidents were close in time to one another, and in light of the prior

allegedly discriminatory conduct by Underwood and Carlile, we cannot say that a

trier of fact could not find that these two acts were part of an actionable hostile

work environment. Accordingly, summary judgment on Joki’s hostile work

environment claim was improper. See id. at 117 (“Provided that an act

contributing to the [hostile work environment] claim occurs within the filing

period, the entire time period of the hostile environment may be considered by a

court for the purposes of determining liability.”); Kang v. U. Lim Am., Inc., 296

F.3d 810, 818 (9th Cir. 2002) (holding that to survive summary judgment, a

plaintiff is required to “demonstrate only that genuine issues of material fact exist

as to whether the acts about which [s]he complained were ‘part of the same

actionable hostile work environment practice, and if so, whether any act [fell]
                                       -6-
within the statutory time period.’” (quoting Morgan, 536 U.S. at 120) (second

alteration in original)).

       AFFIRMED in part; REVERSED AND REMANDED in part. Each

party to bear its own costs.
                                                                                 FILED
Joki v. Rogue Community College, 12-35413                                        OCT 29 2013

                                                                             MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS



        I agree with the majority that the district court properly granted summary

judgment on Joki’s Title VII and state law claims. However, I respectfully

disagree with the majority’s conclusion that there is a triable issue of fact regarding

Joki’s 42 U.S.C. § 1983 equal protection claim.

        It is true that a hostile work environment claim is not time-barred “so long as

all acts which constitute the claim are part of the same unlawful employment

practice and at least one act falls within the [statute of limitations].” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). The Supreme Court has

explained that each act contributing to such a claim must be “part of the whole,”

and if the only act within filing period has “no relation” to the time-barred conduct

or is otherwise “no longer part of the same hostile environment claim,” the

employee cannot recover for the previous acts. Id. at 118. That is the situation

here.

        There is no evidence, nor even any inference to be raised, that Underwood’s

snub of Joki or Carlile’s gesture towards her contributed to a hostile work

environment, because there is simply no connection between this behavior and the

otherwise time-barred, discriminatory conduct alleged by Joki. The record lacks

any indication that these incidents were motivated by gender animus as opposed to
                                         -2-
ordinary dislike, that they are factually connected to any of the past gender-related

conduct directed towards Joki, or that they are in any way similar to past acts of

discrimination. Underwood’s and Carlile’s actions can only be characterized as

minor insults or annoyances and are insufficient to show the continuation of a

hostile work environment created by gender discrimination. Accordingly, I would

affirm the district court’s grant of summary judgment in its entirety.
