I came across a Jurisdictional Statement on the internet. It tells the story quite well.
Some of the highlights of this appeal:
The Chief Investigator of the District Attorney’s Office, Cynthia Wyett, was extraordinarily evasive. She claimed, after some thirty years of employment,she did not know whether pointing a gun constituted workplace violence. PMPSJ, Wyett depo, ER00951-964. Ms. Wyett boldly asserted guns are not threatening. Depo, ER00964. Ms. Wyett refused to admit an assault with a knife was in fact a felony. Wyett depo, ER00966-968. (Ms. Wyett did not wish to admit the obvious because of the dichotomy between countenancing acts of violence among male employees and disciplining a woman because she possessed the temerity to complain re “I’m going to chop the bitch up . . .”).
Ms. Wyett admitted plaintiff was moved from the fifth floor because of her fear of Mr. Mannlein. Depo, ER00970. Ms. Wyett claimed Ms. Miller was not really afraid of Mr. Mannlein – even though she admitted Ms. Miller expressed fear. Depo, ER00949 & ER01004-1005. Mr. Mannlein was not disciplined for sexual harassment and was not fired because of sexual harassment. Depo, ER00980-987 (the District Court misapprehended these circumstances and ignored the admissions of Wyett and other County managers).
Ms. Wyett acknowledged the six-person unit, in which Ms. Peterson worked, was abolished. Depo, ER01019-1020. Ms. Earl possessed the most seniority. The only practical way to fire Ms. Earl (and plaintiff) was to abolish the unit. Depo, ER01020. Both Ms. Peterson and Ms. Earl thereby lost their County employment.
Of course Ms. Peterson requested a transfer. She knew of the District Attorney’s cosseting
of a confirmed sexual harasser. Mr. Mannlein was not timely investigated for sexual harassment. Nor was he ever disciplined for such (Mr. Mannlein’s employment was ultimately terminated, apparently, because he made repeated approaches to a woman who had worked as a prostitute – after serving her daughter with process. Managers at the District Attorney’s Office did not characterize the termination as sounding in sexual harassment.).
Out of a pool of more than 200 employees, District Attorney Richard Gammick chose to out-source the job functions of Ms. Earl, Ms. Peterson and four other employees who served process.
Mr. Gammick made the decision to terminate six employees – out of a pool of more than two hundred. Two of those persons opposed sexual harassment. Mr. Gammick coddled Mr. Mannlein, for years, while one woman after another complained. Mr. Gammick oversaw retaliation against Ms. Peterson and Ms. Earl.
Mr. Gammick refused to investigate. He refused to discipline Mr. Mannlein, but
did summon the fortitude to discipline Ms. Earl – because she complained of sexual harassment. The reasonable inferences are compelling. Ms. Peterson’s employment was terminated, in material part, because she opposed sexual harassment. “A reduction in force may not be used as a disguise for an adverse action to remove or demote a particular employee.” Washington v. Garrett, 10 F.3d 1421, 1429 (9th Cir. 1993); citing Gandola v. Federal Trade Commission, 773 F.2d 308, 312 (Fed. Cir. 1985) (quotation omitted).
That the Office permitted sexual harassment, for years, is evidence which supports the premise elimination of Ms. Peterson’s position sounded in retaliation.
Mr. Gammick, although he knew of Ms. Spring Miller’s November 2, 2007, statement (whereby she described a course of harassment and misogyny (depo,
ER01704-07), discounted Ms. Miller’s complaint and complaints of other female
employees. He characterized those complaints as a “feeding frenzy.” Depo,
ER01708-11.
Question: You were aware in February of 2008 that a number of other women had complained of Mr. Mannlein; correct?
Answer: I was aware that there had been one other – I can think of about his – nothing to do with sexual harassment. It was his loud and boisterous voice, his use of language, and his getting close to people. He had a habit of doing that. We talked about that. He was counseled on that, and he said he was going to counseling for that very thing. He did not understand, at least from his expressions to me, that people in the west need space as opposed to people in the east who are pushed together all the time. Depo, ER01759.
(What the hell is Dick Gammick saying here? Talking out of his ass again......)
Mr. Gammick’s vague reference to “use of language” was, in fact, an allusion to “bitches.” Depo, ER01760. Mr. Gammick was aware of the other complaints. Depo, ER01760-61; 01763-66; 01819-20. Supervisors were not disciplined for failure to report Mr. Mannlein’s conduct. Depo, ER01808.
Mr. Mannlein’s misogynistic conduct was backedup by the specter of violence. As the testimony illustrates (witness the fact male investigators were somewhat intimidated and their hands strayed near their guns when Mannlein acted out) a physical threat was perceived. “We believe that in some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment.” Ellison v. Brady, 924 F.2d 872, 883 (9 Cir. 1991); th also see Draper v. Coeur Rochester, 147 F.3d 1104, 1109
(9th Cir. 1998).
Here is the initial story:
