Michelle J. Maliniak v. City of Tucson, a municipal corporation of the State of Arizona

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE J. MALINIAK,
Plaintiff - Appellant,
v.
CITY OF TUCSON, a municipal
corporation of the State of Arizona,
Defendant - Appellee.
No. 12-17763
D.C. No. 4:07-cv-00125-AWT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
A. Wallace TASHIMA, Senior Circuit Judge, Presiding
Argued and Submitted February 11, 2015
San Francisco California
Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.
Michelle Maliniak appeals the district court’s grant of judgment as a matter
of law in favor of the City of Tucson (“City”) on her claim of sexual discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. (“Title
VII”). Maliniak was an engineer in the Tucson fire department. She filed her
FILED
APR 09 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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charge of discrimination with the Equal Employment Opportunity Commission
three hundred days after finding a sign on a fire department Hazmat truck, as
described below. A jury found in favor of Maliniak on her Title VII hostile work
environment claim and awarded her $35,000. In its verdict, the jury explicitly
found that the truck sign incident, which was the only incident within the three
hundred day limitations period, was a continuing part of Maliniak’s earlier hostile
work environment claim. In granting the City’s Rule 50(b) motion, the district
court concluded that the truck sign incident was not related to the earlier incidents,
and that Maliniak’s hostile work environment claim was therefore time-barred.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
1. We review de novo a district court’s grant or denial of judgment as a matter
of law. Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 941
(9th Cir. 2011). Judgment as a matter of law is appropriate when the evidence,
construed in the light most favorable to the nonmoving party, permits only one
reasonable conclusion that is contrary to the jury’s verdict. Martin v. Cal. Dep’t of
Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009).
2. The Supreme Court explained in National Railroad Passenger Corp. v.
Morgan that, for a hostile work environment charge to be timely, “the employee
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need only file a charge within . . . 3001 days of any act that is part of the hostile
work environment.” 536 U.S. 101, 118 (2002). The acts within and outside of this
period must have some “relation to” each other. Id. In other words, a court must
“determine whether the acts about which an employee complains are part of the
same actionable hostile work environment practice, and if so, whether any act falls
within the statutory time period.” Id. at 120.
3. At Maliniak’s assigned station, male firefighters repeatedly used the
women’s bathroom, leaving it dirty and walking in on Maliniak. After Maliniak
brought the issue to her supervisor’s attention, a captain put a sign on the women’s
bathroom door that said “No Men.” The next day, Maliniak found someone had
written “for me” next to “No Men.” After finding the writing on the sign, Maliniak
discussed the issue with the chief of the fire department, who circulated a
memorandum reinforcing that the women’s bathroom is exclusively for women.
Problems with the women’s bathroom continued. Four months after the bathroom
sign incident and the circulation of the chief’s memorandum, Maliniak found a
sign on a Hazmat truck in the course of her routine chores that said: “Fu@# You
Use Reverse B!*tch.” A firefighter from a different shift had put the sign on the
1The parties agree that 300 days is the applicable limitations period. See 42
U.S.C. § 2000e-5(e)(1).
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truck as a practical joke intended for another firefighter on his shift four days
before Maliniak found it. The firefighters involved and their supervisors knew
about the bathroom sign incident before the truck sign incident.
4. Construing the evidence in the light most favorable to Maliniak, it was not
unreasonable for a jury to conclude that the truck sign incident was related to the
earlier bathroom incidents, and that all incidents were therefore part of the same
actionable hostile work environment claim. See Martin, 560 F.3d at 1046. While
we have considered “whether the earlier and later events amounted to ‘the same
type of employment actions, occurred relatively frequently, [or] were perpetrated
by the same managers,’” Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 893 (9th Cir.
2004) (quoting Morgan, 536 U.S. at 120) (alteration in original), Morgan did not
limit the analysis to those factors.2 See 536 U.S. at 120 (affirming use of those
factors). Here, it was reasonable for the jury to conclude that the truck sign
incident was related to the earlier bathroom incidents because both involved
written signs that were denigrating to women, and the supervisors and firefighters
2Contrary to the dissent’s argument, neither Morgan nor Porter limits us to a
particular set of factors. In Morgan, the Supreme Court affirmed our consideration
of relatedness, in which we assessed the type of employment action, the frequency
of the alleged discriminatory acts, and whether they were perpetrated by the same
managers. Morgan, 536 U.S. at 120-21. Similarly, Porter did not establish a test
of factors. There, we stated that “we consider” the circumstances cited in Morgan.
Porter, 419 F.3d at 893.
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who allowed the sign to remain on the truck knew of the offensive bathroom sign.
Having concluded that the trial evidence permits a conclusion that is not contrary
to the jury’s verdict, we reverse the grant of judgment as a matter of law and
reinstate the verdict.
REVERSED.
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Maliniak v. City of Tucson, No. 12-17763
HAWKINS, Senior Circuit Judge, dissenting:
I respectfully dissent. The totality of the circumstances test for evaluating
relatedness is inconsistent with our precedent in Porter v. California Department of
Corrections, 419 F.3d 885 (9th Cir. 2005). While the majority’s approach may be
preferable to our current rule, its adoption here would actually weaken Maliniak’s
claim.
Unlike other courts that have adopted a totality of the circumstances test,1 the
Ninth Circuit evaluates relatedness based on particular factors: “[t]hus, to determine
whether all of these events constitute ‘one unlawful employment practice,’ we
consider whether they were ‘sufficiently severe or pervasive,’ and whether the earlier
and later events amounted to ‘the same type of employment actions, occurred
relatively frequently, [or] were perpetrated by the same managers.’” Porter, 419 F.3d
at 893 (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116–20
FILED
APR 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1 See, e.g., Wilkie v. Dep’t of Health & Human Servs., 638 F.3d 944, 951 (8th
Cir. 2011); McGullam v. Cedar Graphic, Inc., 609 F.3d 70, 81–8 (2d. Cir. 2010)
(Calabresi, J. concurring); Chambless v. Louisiana-Pac. Corp., 481 F.3d 1345, 1350
(11th Cir. 2007); Lelaind v. City & Cnty. of San Francisco, 576 F. Supp. 2d 1079,
1093 1102 (N.D. Cal. 2008).

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(internal citations omitted). Porter, like Morgan, does not endorse a totality of the
circumstances test.2
Applying Porter, I reach a different result than my colleagues in the majority.
The posting of two off-color and offensive signs does not qualify as occurring
“relatively frequently.” Nor were the signs “severe or pervasive.” Similarly, Maliniak
offers no evidence that the two incidents “were perpetrated by the same managers.”
A mildly colorable argument can be made that the two signs were “the same type of
employment actions” but the two signs were targeted to different individuals,
separated in time by about four months, and placed in different locations. Thus,
applying Morgan, as interpreted by Porter, I would affirm the district court.
2 Since Morgan and Porter, no case decided by our court has adopted a totality
of the circumstances test to evaluate whether incidents were part of the same
actionable hostile work environment claim. A number of district courts in our circuit
have adopted or applied Porter. See, e.g., Medina v. Donahoe, 854 F. Supp. 2d 733,
749 (N.D. Cal. 2012); Rekow v. Sebelius, 2011 WL 1791272, at *3 (D. Ariz. May 11,
2011); Panelli v. First Am. Title Ins. Co., 704 F. Supp. 2d 1016, 1023 (D. Nev. 2010);
Montoya v. Regents of Univ. of Cal., 2010 WL 2731767, at *7 (S.D. Cal. July 9,
2010); Tu v. Kaiser Found. Health Plan of Nw., 2008 WL 3871742, at *11 (D. Or.
Aug. 19, 2008); Martin v. Idaho, Dep’t of Corr., 2007 WL 1667597, at *3 (D. Idaho
June 7, 2007). And, many of our sister circuits have echoed our decision in Porter by
interpreting Morgan’s recitation of factors as a test. See, e.g., Baird v. Gotbaum, 662
F.3d 1246, 1251 (D.C. Cir. 2011); Stewart v. Mississippi Transp. Comm’n, 586 F.3d
321, 329 (5th Cir. 2009); Duncan v. Manager, Dep’t of Safety, City & Cnty. of
Denver, 397 F.3d 1300, 1309 (10th Cir. 2005).
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Interestingly, assuming arguendo that the majority’s totality of the
circumstances test was the right one, applying that approach actually weakens
Maliniak’s case. Considering all of the relevant factors, the posted signs were not
very severe, the identity of those involved were different, the signs were posted in
different locations and were separated temporally, and the conduct was not physically
intimidating. Thus, I would still affirm the JMOL grant, even if the majority’s test
was the right one.
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