Kathryn Enixon v. Catholic Health Initiatives

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN E NIXON,
Plaintiff - Appellant,
v.
CATHOLIC HEALTH INITIATIVES,
Defendant,
And
ATIF MIAN and FRANCISCAN
HEALTH SYSTEM,
Defendants - Appellees.
No. 12-35276
D.C. No. 3:11-cv-05076-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted February 3, 2015
Seattle, Washington
Before: FISHER, BEA, and MURGUIA, Circuit Judges.
FILED
MAR 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Plaintiff–appellant Kathryn E. Nixon sued defendant–appellee Franciscan
Health Services (FHS) for sex discrimination and constructive discharge under
Title VII, 42 U.S.C. § 2000e-2, and Washington discrimination law, R.C.W.
49.60.180. Nixon also sued defendant–appellee Dr. Atif Mian for battery under
Washington law. The district court granted FHS’s motion for summary judgment
and declined to exercise supplemental jurisdiction over Nixon’s state-law battery
claim against Dr. Mian. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
1. Nixon sued FHS for sex discrimination under a theory of hostile work
environment, alleging that FHS “fail[ed] to take prompt and appropriate remedial
action in response to plaintiff Nixon’s complaint of hostile work environment
sexual harassment.” Sexual harassment occurs where the plaintiff was subjected to
a hostile work environment; i.e., where she “was subjected to verbal or physical
harassment that was sexual in nature, . . . was unwelcome and . . . was sufficiently
severe or pervasive to alter the conditions of the plaintiff’s employment.” Dawson
v. Entek Int’l, 630 F.3d 928, 937–38 (9th Cir. 2011). “[E]mployers are liable for
failing to remedy or prevent a hostile or offensive work environment of which
management-level employees knew, or in the exercise of reasonable care should
have known.” Id. at 940 (alteration in original) (quoting Ellison v. Brady, 924 F.2d
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872, 881 (9th Cir. 1991)). 1 An employer “may nonetheless avoid liability for such
harassment if it undertook remedial measures ‘reasonably calculated to end the
harassment.’” Id. (quoting Ellison, 924 F.2d at 882).
We hold that FHS responded adequately to Nixon’s claims as a matter of
law. Our analysis proceeds in two steps. First, we consider FHS’s immediate
response to Nixon’s complaint; then, we consider the permanent remedial steps
FHS took after concluding its investigation. See Swenson v. Potter, 271 F.3d 1184,
1192 (9th Cir. 2001).
a. When Nixon reported Dr. Mian’s alleged conduct to FHS, FHS promptly
initiated an investigation. As part of the investigation, FHS interviewed witnesses,
formally confronted Dr. Mian with the allegations, and encouraged Nixon to take
steps necessary to ensure her own comfort and health, including FHS paying for
the administrative leave Nixon decided to take while the investigation was
ongoing. We conclude that FHS’s immediate response was adequate. See id. at
1193–94 (holding that conducting a prompt investigation and separating the
complainant from the alleged harasser as much as practicable were reasonable,
immediate responses to a sexual harassment complaint).
1 Arno v. Club Med Inc., 22 F.3d 1464, 1472 (9th Cir. 1994), is
distinguishable because the alleged conduct there was committed outside the
United States and thus could not give rise to liability under Title VII even had it
created a hostile work environment.
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b. FHS’s investigation was “inconclusive,” that is, FHS could not conclude
that Dr. Mian had engaged in inappropriate action or that disciplinary action was
warranted. FHS nevertheless invited Nixon to meet with its human-resource
department to discuss alternative working arrangements that would limit Nixon’s
possible encounters with Dr. Mian, even offering her the possibility of working at
other facilities in the area. We conclude that FHS took adequate permanent steps
to remedy the alleged harassment. See id. at 1196 (holding that employers need
not “impose discipline even if they do not find what they consider to be sufficient
evidence of harassment”). Nixon’s hostile work environment claims under Title
VII and Washington discrimination law therefore fail.
2. Our holding that FHS adequately responded to Nixon’s sexual
harassment complaint also disposes of her constructive discharge claim. Whether
or not the conditions Nixon experienced at FHS caused her to resign, Nixon
“effectively petitioned” FHS for relief from them before terminating her
employment. See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465–66 (9th
Cir. 1994).
3. Because the district court properly dismissed Nixon’s Title VII claim
against FHS – the only claim “over which it ha[d] original jurisdiction,” 28 U.S.C.
§ 1367(c)(3) – it did not abuse its discretion in declining to exercise supplemental
jurisdiction over Nixon’s state law battery claim against Dr. Mian.
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AFFIRMED.
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