James R. Meirhofer; Ann L. Meirhofer v. Smith’s Food

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES R. MEIRHOFER; ANN L.
MEIRHOFER,
Plaintiffs - Appellants,
v.
SMITH’S FOOD AND DRUG CENTERS
INC., doing business as Fry’s Food and
Drug Stores, Inc. doing business as Fry’s
Food Stores, Inc.; KROGER COMPANY,
Defendants - Appellees.
No. 09-17702
D.C. No. 4:07-cv-00422-RCC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted February 18, 2011 **
San Francisco, California
FILED
FEB 23 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

*** The Honorable Tena Campbell, Senior District Judge for the U.S.
District Court for Utah, Salt Lake City, sitting by designation.
2
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL, Senior
District Judge. ***
James Meirhofer appeals from the district court’s summary judgment in
favor of his employer on his hostile work environment claim under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The facts are known to
the parties and will not be repeated here except to the extent necessary.
Assuming, arguendo, that hostile work environment claims are cognizable
under the ADA, we conclude that Meirhofer’s allegations do not rise to the level of
“a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993). At most, the derogatory nickname and occasional
insulting comments constituted “simple teasing” and “isolated incidents” and were
not sufficiently severe or pervasive to alter the terms and conditions of his
employment and create an abusive work environment. Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
AFFIRMED.

-- 2 of 2 --