ANN ALIOTO, AKA Ann Alito v. Associated

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Roger T. Benitez, United States District Judge for the**
Southern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANN ALIOTO, AKA Ann Alito,
Plaintiff - Appellant,
v.
ASSOCIATED CREDITORS
EXCHANGE INCORPORATED, an
Arizona Corporation, AKA Receivables
Management Consultants, Inc.,
Defendant - Appellee.
No. 11-15139
D.C. No. 2:09-cv-02433-SMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted April 20, 2012
San Francisco, California
Before: McKEOWN and N.R. SMITH, Circuit Judges, and BENITEZ, District
Judge.**
FILED
MAY 07 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Because the parties are familiar with the facts and procedural history, we1
do not restate them here except as necessary to explain our disposition.
11-15139 2
Ann Alioto appeals the district court’s grant of summary judgment in favor
of Associated Creditors Exchange, Inc. (“ACE”), dismissing her claims under Title
VII of the Civil Rights Act of 1964, as amended, for hostile work environment and
retaliation, and her claim for intentional infliction of emotional distress under
Arizona law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in
part, reverse in part, and remand.1
The district court did not err in finding that Alioto failed to establish a prima
facie case with regard to her hostile work environment claim. The conduct that
Alioto complained of was not “sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working environment.” See
EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 997 (9th Cir. 2010). Rather,
the conduct was episodic at best, which is insufficient to establish a prima facie
case. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir.
2005) (“Simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” (internal quotation marks omitted)). There was no
evidence of widespread pornography. Moreover, when Alioto’s coworker showed

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her a pornographic picture, ACE took corrective action. Finally, another
coworker’s comment that he “like[s] older women” does not rise to the level
necessary to withstand summary judgment, and the second incident involving this
coworker did not occur until months later.
On the other hand, the district court erred in granting summary judgment as
to Alioto’s retaliation claim. First, Alioto stated a prima facie claim. A reasonable
jury could find that Alioto established a causal link between her protected activity
and the termination of her employment, as her employment was terminated two
hours after she complained about her coworker’s behavior. See Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (“[C]ausation can be inferred
from timing alone where an adverse employment action follows on the heels of
protected activity.”). Second, there is a genuine issue of pretext, due to the close
temporal proximity between Alioto’s complaint and the termination of her
employment as well as evidence that ACE’s disciplinary policy for failure to meet
no-deficit quotas was applied arbitrarily. See Dawson v. Entek Int’l, 630 F.3d 928,
937 (9th Cir. 2011) (“In some cases, temporal proximity can by itself constitute
sufficient circumstantial evidence of retaliation for purposes of . . . the showing of
pretext.”); Bell v. Clackamas Cnty., 341 F.3d 858, 866 (9th Cir. 2003) (genuine
issue of pretext where the employee presents evidence of temporal proximity as

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well as other circumstantial evidence of pretext). We acknowledge ACE’s position
that it intended to terminate Alioto before the last incident; however, we cannot
weigh the evidence on summary judgment.
Finally, with respect to Alioto’s intentional infliction of emotional distress
claim, the district court did not err in finding that the conduct complained of was
not extreme and outrageous. Alioto has not shown that the work environment at
ACE, ACE’s alleged failure to investigate Alioto’s complaints, or ACE’s
termination of her employment was “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” See Johnson v.
McDonald, 3 P.3d 1075, 1080 (Ariz. Ct. App. 1999) (internal quotation marks
omitted).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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