Kathleen Denning v. County of Washoe

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHLEEN DENNING,

Plaintiff-Appellant,

v.

COUNTY OF WASHOE,

Defendant-Appellee.

No. 18-16880

D.C. No.
3:17-cv-00463-MMD-WGC

MEMORANDUM
*

Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding

Submitted March 26, 2020
**

Las Vegas, Nevada

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Kathleen Denning appeals from the district court’s order granting summary
judgment to the County of Washoe on her hostile work environment claim under
the Americans with Disabilities Act (ADA). Assuming that hostile work
environment claims are cognizable under the ADA, see Brown v. City of Tucson,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

APR 2 2020

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

Page 2 of 3

336 F.3d 1181, 1190 (9th Cir. 2003), and that Denning’s epilepsy qualifies as a
disability, we affirm.
Although a reasonable jury could conclude that Denning’s supervisor,
Robert Smith, mistreated her on the basis of her disability, Smith’s conduct was
not “severe or pervasive enough” to create a hostile work environment. See
Vasquez v. County of Los Angeles, 349 F.3d 634, 643 (9th Cir. 2003). Construing
the facts in the light most favorable to Denning, Smith made two derogatory
statements about her disability over a three-year period, told her co-workers that
she was a “problem child” and a “trouble-maker,” assigned her longer shifts and
less desirable tasks, and “subjected [her] to excessive scrutiny.” This conduct falls
short of the “extreme” behavior required for a hostile work environment claim.
See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Dominguez-
Curry v. Nevada Transportation Department, 424 F.3d 1027, 1035 (9th Cir. 2005)
(reversing a district court’s dismissal of a hostile work environment claim under
Title VII where a supervisor repeatedly made derogatory statements about women
in the workplace, openly expressed anger towards women who took maternity
leave, and told sexually explicit jokes on a daily basis). Because Denning’s
evidence of “isolated offensive remarks” and instances of “unfair treatment” are
insufficient to support a hostile work environment claim, see Vasquez, 349 F.3d at
644, the district court properly granted summary judgment to the County.

Page 3 of 3

AFFIRMED.