James Meirhofer, et al v. Smith's Food and Drug Centers, et al, No. 09-17702 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 23 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES R. MEIRHOFER; ANN L. MEIRHOFER, No. 09-17702 D.C. No. 4:07-cv-00422-RCC Plaintiffs - Appellants, MEMORANDUM* 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. 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 * 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). 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. *** The Honorable Tena Campbell, Senior District Judge for the U.S. District Court for Utah, Salt Lake City, sitting by designation. 2

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