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No Summary Judgement for Hugging, Kissing Sherriff

By Casey C. Sullivan, Esq. on November 15, 2016 | Last updated on March 21, 2019

A county sheriff accused of creating a sexually hostile work environment by hugging and kissing a coworker isn't entitled to summary judgement, the Ninth Circuit has ruled. Yolo County Sheriff Edward G. Prieto was accused by Victoria Zetwick, a correctional sergeant, of violating Title VII of the Civil Rights Act and the California Fair Employment and Housing Act based on allegedly over a hundred "unwelcome hugs and/or kisses" over a 12-year period.

The district court had granted Prieto's motion for summary judgment, finding that the accused conduct was not severe or pervasive enough to establish a hostile work environment, but the unanimous three-judge Ninth Circuit panel reversed in an unpublished opinion, ruling that a reasonable jury could find Prieto's conduct to have violated the law.

No "Rule" That Hugs and Kisses Are Common Behavior

The court began its brief opinion by noting that the "application of incorrect legal standards also may well have influenced the district court's" summary judgement finding. First, the Ninth took issue with the lower court's "rule" that "hugs and kisses on the cheek are not outside the realm of common workplace behavior," and thus "could never support a Title VII claim."

That supposed "rule," the Ninth said, was based on dated caselaw which "likely do not reflect changing contemporary standards of socially acceptable conduct in the workplace -- a decision more appropriately made by a jury."

The lower court also erred when finding that the sheriff's conduct was not "severe and pervasive" and the sheriff was thus entitled to summary judgement. The proper standard was "severe or pervasive," the Ninth explained. The Ninth rejected the district court's "mathematically precise test" that determined that Zetwick had been hugged "only a few times a year for a few second each time."

"Even if such a mathematical test were appropriate, there is a factual dispute as to its computation," the Ninth said.

Further, the court's conclusion emphasized Prieto's supervisory role. "Because a reasonable jury could find that Prieto's conduct, particularly the alleged number and frequency of unwelcome hugs and kisses from a supervisor, was sufficient to create a hostile or abusive work environment, we reverse the grant of summary judgement," the court wrote. (Emphasis in the original.)

If you're litigating a case involving a huggy, kissy supervisor, however, don't get too excited (or despondent). As an unpublished opinion, it sets no binding precedent.

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