Unpublished Disposition, 904 F.2d 41 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 41 (9th Cir. 1988)

Nancy SMEMO-ROSENQUIST, Plaintiff-Appellant,v.KPHO TV5/MERIDETH CORPORATION, Defendant-Appellee.

No. 88-2569.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 1990.Decided June 5, 1990.

Before FLETCHER, PREGERSON and NELSON, Circuit Judges.


Appellant Nancy Smemo-Rosenquist filed a complaint against appellee Merideth Corporation, dba KPHO TV5 ("TV5"), alleging two counts of gender discrimination. TV5 moved for partial summary judgment on count two, which the district court treated as a motion for summary judgment on both counts. The court then entered judgment for the defendant and dismissed the complaint. We reverse the district court and vacate the entry of summary judgment as to both counts of the complaint.

Factual Background

Appellant was employed as a film editor and projectionist at TV5 in Phoenix, Arizona. On August 24, 1985, she was fired, allegedly due to her failure to follow the instructions of her supervisor, Walter Naggo. Smemo-Rosenquist then filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging sex discrimination. After investigating the charges, the EEOC returned a finding of no probable cause on February 28, 1986.

On June 11, 1986, Smemo-Rosenquist filed a one-count complaint in federal district court alleging that Naggo had harassed her because of her sex and that management had been aware of the situation but had failed to correct it. In January 1987, a second cause of action was added claiming wrongful termination and unjust dismissal contrary to public policy. The following month, TV5 moved for partial summary judgment on count two. Because appellant's opposition addressed both causes of action, the court treated the motion as one for summary judgment as to the entire complaint. Summary judgment was entered on March 21, 1988 and the complaint was dismissed. The instant appeal followed.


This court reviews a grant of summary judgment de novo and must reverse if it finds, "after viewing the evidence in the light most favorable to the opposing party," that there remains a triable issue of material fact. Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1348 (9th Cir. 1985).

In general, before a district court can order summary judgment, there must be formal notice of a motion for summary judgment at least ten days before the hearing on that motion. F.R.Civ.P. 56(c). When the non-moving party is pro se, these notice requirements must be strictly adhered to when a pretrial motion is converted into one for summary judgment. Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984) (motion to dismiss converted into motion for summary judgment). The district court's failure to provide sufficient notification constitutes reversible error. Id. at 440.

In the instant case, the district judge converted appellee's motion for partial summary judgment on count two into one for summary judgment as to both counts one and two without notifying appellant as required under F.R.Civ.P. 56(c). Thus, in accordance with Garaux, we reverse the entry of summary judgment on count one.

The district court granted summary judgment on Smemo-Rosenquist's second cause of action which alleges, inter alia, wrongful termination and unjust dismissal in violation of 42 U.S.C. § 2000e (Title VII). Title VII specifies that an employer cannot discriminate against an employee in retaliation for opposing "any employment practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513 (9th Cir. 1989). To make out a prima facie case of retaliation, appellant must show (1) that she was engaged in a protected activity, (2) that she was subjected to adverse employment action, and (3) that the adverse employment action was causally linked to the protected activity. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987).

On appeal, appellant argues that the district court erred in ordering summary judgment based on the affidavits of two TV5 employees who deny that she was terminated because she observed a drug transaction involving TV5 employees. This argument appears to be based on appellant's belief that the witnessing of the transaction which allegedly prompted her termination was a protected activity and that her retaliatory termination was thus actionable under Title VII. This reasoning is flawed, however, since it does not appear that witnessing a drug transaction is a protected activity under Title VII. See 42 U.S.C. 2000e-2(a) (1); 42 U.S.C. § 2000e-3(a).

The record does indicate, however, that there is a genuine issue of fact as to whether Smemo-Rosenquist was fired in retaliation for the complaints of sexual harassment which she lodged with the TV5 management.1  There is no question that appellant's actions in this regard are a protected activity. See 42 U.S.C. 2000e-3(a). It is likewise plain that she was subjected to adverse employment action, i.e. she was fired. Because we are satisfied that there is sufficient evidence to create an issue of fact as to the existence of a causal link, we conclude that the district court erred in granting summary judgment.


We find that the district court erred (1) in treating appellee's motion as one for summary judgment on count one without proper notice, and (2) in granting summary judgment on count two where a genuine issue of material fact existed as to whether appellant was terminated in retaliation for lodging complaints with TV5 management concerning sexual harassment.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


While appellant does not argue this issue on appeal, we choose to raise it sua sponte since "not to do so would be unduly harsh to one ... of the parties," i.e., appellant. United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir.), amending 879 F.2d 505 (9th Cir. 1989)