Petition for Writ of Certiorari — Jennifer Tom, Petitioner v. Martin J. O'Malley, Commissioner of Social Security

TABLE OF CONTENTS

Page

Memorandum from the United States Court of

Appeals for the Ninth Circuit of California,

Security

Social

v.

Tom

Jennifer

Administration No. 22-16977 D.C. No. 4-19cv-06322-JST affirming Civil Court decision

(signed May 2, 2024 Judges Mark Bennett,

Bridget Blade, Daniel Collins docketed

December 22, 2022) Ninth Circuit Dkt. No. 21

(May 2, 2024)........................................................ la-9a

Civil Court Finding of Fact and Conclusion of

Law, Summary Judgment, and Judgment in

Jennifer Tom v. Kilolo Kijakazi Acting

Security

Social

Commissioner

of

Administration, Civil Case No. 19-cv-06322JST, Finding of Fact and Conclusion of law

and Amended Finding of Fact and Conclusion

of law (they are identical after the word

Amended), by Judge Jon S. Tiger Civil Court

Docket ECF 155 and 156 (November 28, 2022),

Summary Judgment (December 13, 2013)

ECF 125 and Judgment, by Judge Jon S. Tiger

Civil Court Docket ECF 159 (December 13,

10a-61a

2022)

1

TABLE OF CONTENTS

Page

Order from the United States Court of Appeals

for the Ninth Circuit of California, Jennifer

Tom v. Social Security Administration No. 2216977 D.C. No. 4-19-cv-06322-JST Denying

petition for panel rehearing Judges Mark

Bennett, Bridget Blade, Daniel Collins Ninth

r■*-____ -x TM.i

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STATUTES

63a

28 U.S.C. § 1254(1)

29 C.F.R. §§ 1630.2(m), 1630.2(o), 1630.2(p)...63a-68a

42 U.S.C. § 12112(a)

68a-69a

42 U.S.C. § 12112(b)(5)(A)

69a-70a

Section 12940(a) of FEHA.

70a-71a

18 U.S. Code § 1519

71a-72a

RULES

Cir. Rule 30-1.3

72a

Cir. Rule 30-1.4

72a-76a

2

TABLE OF CONTENTS

Page

Fed. R. Civ. P. 52(a)

76a-77a

Fed. R. 50

77a-78a

Fed. R. 56

78a-83a

PACER docket For United States Court of

Appeals for the Ninth Circuit of California,

Social

Security

Tom

v.

Jennifer

Administration Case No. 22-16977 D.C. No. 484a-90a

19-cv-06322-JST

Appellant’s Informal Opening Brief to the

United States Court of Appeals for the Ninth

Circuit of California, Jennifer Tom v. Social

Security Administration Case No. 22-16977

D.C. No. 4-19-cv-06322-JST Ninth Circuit

91a-181a

Dkt. No. 2 (March 3, 2014)

Appellant’s Motion to Compel the Social

Security Administration to abide by the Ninth

Circuit Rules 30 1.3 and 30-1.4, in Jennifer

Tom v. Social Security Administration Case

No. 22-16977 D.C. No. 4-19-CV-06322-JST notifying the Nonth Circuit Court that Social

Security Administration did not include all

3

TABLE OF CONTENTS

Page

Appellants exhibits in the joint excerpts of

record Ninth Circuit Dkt. No. 12(August 2,

182a-187a

2023)

Appellee’s Response to Appellant’s Motion to

Compel the Social Security Administration to

oKirlo Vvtt

W »

uxxv

"\Tiv»FV\ Pivmnf T?n1r»o QH 1 Q

A. * XX X UXX V/XJ. VV41U XVUIV/O U V XiU CU1U

30-1.4, in Jennifer Tom v. Social Security

Administration Case No. 22-16977 D.C. No. 4Security

Social

19-cv-06322-JST

Administration admit not including all

Appellants exhibits in the joint excerpts of

record Ninth Circuit Dkt. No. 15 (August 14,

188a-191a

2023)

Appellant’s Reply to Appellee’s Response to

Appellant’s Motion to Compel the Social

Security Administration to abide by the Ninth

Circuit Rules 30-1.3 and 30-1.4, in Jennifer

Tom v. Social Security Administration Case

No. 22-16977 D.C. No. 4-19-cv-06322-JSTlisting the missing excerpts of record cited in

Appellants Informal Opening Brief left out of

the excerpts of record SSA submitted to the

Ninth Circuit which the Ninth Circuit Court

4

TABLE OF CONTENTS

Page

relied on for their decision Ninth Circuit Dkt.

192a-204a

No. 16 (August 15, 2023)

Civil Court Discovery Decision ECF 84 finding

Spike is not an essential function and that

SSA will be held account for their admissions

in Jennifer Tom v. Kilolo Kijakazi Acting

Security

Social

Commissioner

of

Administration, Civil Case No. 19-cv-06322205a-211a

JST (April 6, 2021)

Defendant’s Answer to Consolidated Amended

Complaint Admissions to claims in Jennifer

Tom v. Kilolo Kijakazi Acting Commissioner of

Social Security Administration, Civil Case No.

19-cv-06322-JST, Civil Court Docket ECF 47

212a-313a

(July 2, 2020)

Social Security Administration RA Policy for

Employees with Sensitivity to Fragrances

314a-319a

(March 16, 2016)

Indoor Air Quality Report Completed for The

Social Security Administration Survey date:

January 29, 2016 - Report Date: February 15,

2016 Prepared by: United States Public

5

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Page

Health Service Federal Occupational Health

Program Support Center U.S. Department of

Health & Human Services 320a-332a Email

about Indoor Air Quality Inspection (January,

25, 2016) Civil Court Docket ECF 114-1. ..333a-335a

Social Security Memorandum - From: Nadeem

S. Siddiqui, MD, MPH Medical Officer To:

Gina Portillo SF CREO Manager Region IX

San Francisco Subject: Ms. Jennifer Tom (July

28, 2014) Civil Court Docket ECF 114-1...336a-339a

340a-342a

Letter from Co-worker

6

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER TOM,

Plaintiff-Appellant,

v.

MARTIN

O'MALLEY,*

Commissioner of

Social Security,

Defendant-Appellee.

No. 22-16977

D.C. No. 4:19-cv-06322-JST

MEMORANDUM* *

FILED

MAY 2 2024

MOLLY C. DWYER, CLERK

U S COURT OF APPEALS

Appeal from the United States District Court for the

Northern District of California

Jon S. Tigar, District Judge, Presiding

Submitted April 30, 2024

* Martin O'Malley is substituted for his predecessor Kilolo

Kijakazi, Acting Commissioner of the Social Security

Administration, as Commissioner of the Social Security

Administration, pursuant to Federal Rule of Appellate

Procedure 43(c).

** 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).

la

Before: BENNETT, BADE, and COLLINS, Circuit

Judges.

Plaintiff Jennifer Tom, a former Benefit Authorizer

at the Social Security Administration ("SSA"), alleged

several employment-related claims against the SSA

arising from her alleged perfume sensitivity. Because

we assume the parties' familiarity with the facts, we

recount them here only as necessary. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we

AFFIRM the district court's order granting partial

summary judgment to the SSA and the district court's

bench trial determinations in favor of the SSA.

1. We review the district court's grant of summary

judgment de novo. See Soc. Techs. LLC v. Apple Inc.,

4 F.4th 811, 816 (9th Cir. 2021).

A. The district court correctly granted summary

2a

judgment on Tom's disability discrimination claims

because Tom failed to demonstrate that she suffered

illegal discrimination because of her disability.

Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005

(9th Cir. 2007) (citation omitted).

Tom requested that she be allowed to telework

full-time, and that she be given a fourth laptop,

after she complained that the previous three

laptops assigned to her were contaminated. The

district court concluded that Tom failed to show

that her requested accommodations were

"reasonable on [their] face," that is, "ordinarily or

in the run of cases." U.S. Airways, Inc. v. Barnett,

535 U.S. 391, 401-02 (2002). We agree, as the SSA

was "not obligated to provide an employee the

accommodation he requests or prefers"—it need

"only provide some reasonable accommodation."

3a

Zivkouic v. S. Cal. Edison Co., 302 F.3d 1080, 1089

(9th Cir. 2002) (citation omitted).

Throughout Tom's employment, the SSA

provided multiple, reasonable accommodations in

response to her requests. Tom did not dispute the

accommodations and instead claimed that they did

not "enable[] [her] to return to work full time." But

Tom has failed to show that her request to telework

full-time, considering the many accommodations

provided to her by the SSA, was "reasonable on its

face" or "ordinarily or in the run of cases." Barnett,

535 U.S. at 401-02. We thus affirm the district

court's grant of summary judgment on Tom's

disability discrimination claims.

B. The district court correctly granted summary

judgment on Tom’s claim that her termination was

retaliatory. The district court concluded that, even

4a

assuming Tom made out a prima facie retaliation

case, Coons v. Sec 'y of U.S. Dep't of Treasury, 383

F.3d 879, 887 (9th Cir. 2004), 1) the SSA presented

unrebutted legitimate reasons for her termination;

and 2) Tom failed to show the proffered reasons for

her termination were pretext. The SSA offered

evidence that Tom was Absent Without Leave

(AWOL) on more than 70 occasions. Tom did not

dispute this evidence. Nor did Tom proffer any

evidence showing her termination for being AWOL

was pretextual.

C. The district court also correctly granted

summary judgment as to Tom's disparate treatment

claims. Peterson v. Hewlett-Packard Co., 358 F.3d

599, 603 (9th Cir. 2004). The district court

concluded that Tom had not presented evidence

that "similarly situated individuals outside [her]

5a

protected class were treated more favorably, or

other circumstances surrounding the adverse

employment action give rise to an inference of

discrimination." Peterson, 358 F.3d at 603. Tom has

failed to identify any evidence that the SSA

subjected her to disparate treatment when deciding

to remove her for being AWOL.

2. The district court correctly entered judgment

for the SSA on Tom's hostile work environment

claims. This court recently joined a number of

circuit courts to hold that hostile work environment

claims are cognizable under both the Americans

with Disabilities Act and the Rehabilitation Act.

Mattioda u. Nelson, --F.4th

2024 WL 1710665,

at *7 (9th Cir. Apr. 22, 2024) (discussing and

endorsing the Fifth Circuit's decision in Flowers v.

S. Reg 7 Physician Servs. Inc., 247 F.3d 229 (5th

6a

Cir. 2001)). Tom alleges a hostile work environment

based on actions by her co-workers and her

supervisor Tammie Doan. "An employer's liability

for harassing conduct is evaluated differently when

the harasser is a supervisor as opposed to a

coworker." McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1119 (9th Cir. 2004).

A. The district court correctly granted the SSA

summary judgment as to Tom's co-workers' alleged

harassing behaviors. The district court correctly

determined that Tom failed to present evidence that

SSA failed to take "prompt remedial action" in

response to Tom's several complaints.

B. As to supervisor Doan's actions, the district

court initially determined that Tom had created a

triable issue as to supervisor harassment. After a

bench trial, the district court found in favor of the

7a

SSA. In reviewing a judgment following a bench

trial, we review the district court's findings of fact

for clear error and its legal conclusions de novo. See

Tonry v. Sec. Experts, Inc., 20 F.3d 967, 970 (9th

Cir. 1994).

Tom needed to establish a "pattern of ongoing

and persistent harassment severe enough to alter

the conditions of employment." Nichols u. Azteca

Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir.

2001) (quoting Draper v. Coeur Rochester, Inc., 147

F.3d 1104, 1108 (9th Cir. 1998)); see also Mattioda,

2024 WL 1710665 at *8. This required her to prove

that her "workplace was 'both objectively and

subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that [she] in

fact did perceive to be so.'" Nichols, 256 F.3d at

871-72 (quoting Faragher v. City of Boca Raton,

8a

524 U.S. 775, 787 (1998)); see also Mattioda, 2024

WL 1710665 at *9.

Tom accused Doan of five instances of harassment.

The district court carefully evaluated the five alleged

instances and concluded that a reasonable person

would not find the encounters between Tom and

Doan severe or pervasive enough to alter the

conditions of Tom's employment and create an

abusive working environment. Because we find no

clear error in the district court's findings, we

affirm its bench trial determinations.

AFFIRMED.

9a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JENNIFER TOM,

Case No. I9-cv-06322-JST

Plaintiff,

v.

KILOLO KIJAKAZI,

AMENDED FINDINGS OF

FACT AND

CONCLUSIONS OF LAW

Defendant,

This action was tried before the Court on February

22-24, 2022. Plaintiff Jennifer Tom represented

herself. Defendant Kilolo Kijakazi was represented

by attorneys Wendy Garbers and J. Wesley Samples.

Having considered the evidence, the arguments of

the parties, and the record in this action, the Court

makes the following findings of fact and conclusions

of law pursuant to Rule 52 of the Federal Rules of

Civil Procedure.

I,

FINDINGS OF FACT

10a

A. Relationship Background Between Tom and

Tammie Doan

1. From August 17, 2008, through August 15, 2018,

Tom was employed as a Benefit Authorizer within

Module 10 at the Social Security Administration's

("SSA") Western Program Service Center

("WNPSC").

2. Tammie Doan has worked for the SSA from 2009

until the present. During that time, she has held the

positions of Authorizer, Management Analyst,

Assistant Module Manager, Management Program

Analyst, Program Specialist, Program Expert, and

Management Program Analyst. From October 2011

through October 2013, Doan was employed as an

Assistant Module Manager who supervised Claims

Authorizers within Module 10 at SSA's WNPSC.

3. Doan left for approximately six months of

maternity leave beginning in late October 2013.

lla

4. When Doan returned from maternity leave in

April 2014, she became the Assistant Module

Manager who supervised Benefit Authorizers within

Module 10 at SSA's WNPSC.1 She served as

Assistant Module Manager and Tom's first-line

supervisor from April 13, 2014, through July 25,

2014.

5. Tom was selected to perform a special project,

which took her away from Module 10 for proximately

three weeks during the time she was being

supervised by Doan. During this three-week period,

Tom sat on floor three, instead of floor five, where

Module 10 was housed.

6. On July 26, 2014, Doan was promoted

^'Claims Authorizers" and "Benefits Authorizers" are

different positions within the SSA.

12a

to the position of Management and Program Analyst

within SSA's Regional Center for Automation and no

longer worked with Tom.

B. Tom's Perfume Sensitivity and Doan's Actions

7. Tom is allergic to perfumes, colognes, and

other fragrances.

8. In December 2013, Tom complained to her thenmanager, Mireille Hanft, that a coworker,

Aretha Colston, was using perfume on her body and

also spraying it around her cubicle area, and that

Colston's perfume was triggering Tom's allergy.

Hanft spoke to Colston, who agreed to stop using

perfume or cologne.

9. In fact, Colston's use of perfume continued. In

May 2014, Tom approached Doan, her new manager,

and said that Colston was using a perfume that

triggered Tom's fragrance allergy. Doan responded

13a

that she would talk to Colston to determine if there

was any way of resolving Tom's complaint. Doan also

spoke with Hanft.

10. On May 30, 2014, Doan met separately with

Tom and Colston to discuss Colston's use of perfume

and its effect on Tom. During Doan's meeting with

Tom, Tom stated that the perfume worn by Colston

was causing her to have an allergic reaction. Tom

further indicated that other employees also wore

perfume, but that those other persons' perfumes were

not strong enough to trigger Tom's allergy. Doan

informed Tom that she wanted to find an

accommodation for Tom, such as working at a cubicle

away from Colston, which would permit Tom to

comfortably perform her job duties.

11. During Doan's separate meeting with Colston,

Colston told Doan that, based on a conversation with

14a

a prior manager, she had ceased spraying perfume

around her cubicle area and only wore it on her body.

She also stated that she would be willing to move her

cubicle, so that she would no longer be sitting so close

to Tom, if that would address Tom's concerns.

12. On June 2, 2014, Doan sent Tom an email

summarizing the discussion they had at their May

30 meeting:

I understand from our conversation that the

fragrances worn by Aretha is [sic] causing you to

have an allergic reaction (skin rashes and a burning

sensation in your lungs).

You said that you have been around other people

using perfume, but they are not strong to the point

of triggering your allergy. You have to take

Benadryl to tone down the symptoms. In addition

you have to drink caffeinated drinks to keep you

awake. You also have a fan running in the

background to flush the air.

As I stated in our meeting, I want to accommodate

you and provide you with option [sic] such as a

working cubicle that is distant from the source of

your allergy so you can comfortably perform your

15a

duties. You temporarily moved to Lara's cubicle

on May 30, 2014. I have provided you with the

options to move to different cubicles in the unit

temporarily, but you refused this idea and wanted

to see your union representative. You said that

even if you move to another cubicle, Aretha's

fragrances is [sic] so strong that it is still affecting

you. You were sitting in Lara's previous cubicle on

Friday and it was still affecting you. Today, you

requested to sit in Lara's cubicle. If you are okay

with that cubicle, it is available to you until July

11, 2014. We also have several other cubicles in

the unit available for you to use temporarily. If

you are open to this idea, please come see me.

The Court finds that Doan's email accurately

summarizes her May 30 meeting with Tom.

13. Tom sent her own summary of the May 30

meeting to Doan on June 2, 2014. In it, Tom

acknowledged that, during the May 30, 2014

meeting, Doan explained that (1) since Tom was

the individual with the sensitivity, management

would temporarily relocate her workstation; (2)

pursuant to an agreement with the union,

16a

"management needs to open up bidding for

personal relocation to new cubical [sic] locations

within the modules"; and (3) the cubicle relocation

would be temporary until the bidding process

concluded. Tom also acknowledged that, at the May

30, 2014 meeting, she and Doan discussed other

accommodations that might assist Tom, including

telework.

14. At the time, Tom did not say that her having to

move to a different cubicle, instead of Colston having

to move, was unfair, harassing, or inappropriate. She

wrote in an email, "Personally I am more than happy

to relocate to [a co-worker's] old desk until Aretha is

allowed to move to her cubicle of choice."

15. On June 3, 2014, Tom responded to Doan's

email summary of the May 30 meeting. Tom did not

rebut or challenge Doan's observation that, "You said

17a

that you have been around other people using

perfume, but they are not strong to the point of

triggering your allergy." Tom's June 3, 2014 email

reiterated that it was Colston's "large dose" of

perfume that was "strong enough to cause [her]

allergies to act up."

16. On June 2 or 3, 2014, Doan and Tom toured the

office to find a different cubicle for Tom that would

place her further away from Colston. Doan was

wearing perfume that day. Tom informed Doan that

Doan's perfume was bothering her, but she also said

that if she maintained adequate distance from Doan,

the perfume no longer bothered her.

17. On or about June 3, 2014, Tom provided Doan

with a written reasonable accommodation request for

an air purifier, which Doan submitted to SSA's Civil

Rights and Equal Opportunity office ("CREO") for

18a

further processing. Tom indicated that she was

making the request because "a fellow employee's

perfume fills the air." Doan's request to bring in an

air purifier was granted.

18. Doan also undertook numerous other efforts

to address Tom's concerns. This order does not list

those efforts in detail because the Court disposed of

Tom's reasonable accommodation claims at

summary judgment and they are no longer part of

this litigation.

19. On July 23, 2014, Tom provided Doan with

another written reasonable accommodation request,

this time seeking a scent-free work environment.

Doan promptly provided this request to CREO for

further processing. In this request, Tom described

her need for an accommodation differently. Instead of

just referring to a single co-worker's perfume, Tom

19a

referred, for the first time, to multiple "co-workers[']

perfumes" "throughout different locations within the

building." Doan was not Tom's supervisor when a

decision was made on this reasonable accommodation

request because she had started a new position on

July 26, 2014.

C. Tom's Harassment Claims Against Doan

20. In this litigation, Tom has accused Doan of

four instances of harassment:

(a) Wearing perfume in Tom’s presence during a

June 3, 2014 meeting;

(b) Laughing at Tom during a June 27, 2014 Benefit

Authorizers’ meeting;

(c) Requesting that Plaintiff stand next to Ms.

Colston’s new cubicle on July 8, 2014;

(d) Following Tom into the elevator while wearing

perfume on July 10, 2014; and

(e) Generally harassing her on unspecified

occasions.

20a

21. Tom first accused Doan of harassment in a

July 9, 2014 email, which Tom sent in response to

Doan's June 20, 2014 email informing Tom that she

could bring an air purifier to work for her personal

use. Prior to this time, Tom had only referred to

Colston as her "harasser."

22.0n June 3, 2014, Doan and Tom walked around

the module work area to identify a cubicle for Tom's

use that was located away from any triggering

perfumes. After completing their walk, Doan invited

Tom to sit in her cubicle to continue their discussion.

Tom informed Doan that she could not sit in the

cubicle because Doan was wearing perfume. Doan

asked Tom if she was "okay," and Tom confirmed she

was "okay" because Doan was wearing a light

perfume. Tom did not ask to leave the meeting, and

the parties continued their discussion with Doan

21a

inside the cubicle and Tom standing outside the

partition.

23.Prior to that time, Tom had only complained of

Colston's perfume and had indicated that she was

only bothered by "strong" perfume. She had never

informed Doan that she was bothered by Doan's

perfume.

24.The record regarding when and to what extent

Doan wore perfume in the office was contradictory.

For example, Tom's allegations were the subject of

prior proceedings before the Equal Employment

Opportunity Commission. During those proceedings,

Tom acknowledged that, after she told Doan of her

sensitivity to Doan's perfume during the June 3,

2014 meeting, "Ms. Doan did not wear perfume in my

presence." Tom also acknowledged that prior to the

June 3, 2014 meeting, "Ms. Doan did not wear

22a

perfume in my presence." At trial, however, she

stated that there were times when Doan's perfume

affected her disability. Doan's testimony was that it

was "not uncommon" for her to wear perfume to the

office. She also testified that she had no reason to

believe that her perfume was bothering Tom, because

she wore a "light" amount and because Tom did not

complain about Doan's perfume use. The Court finds

that, to the extent Tom's allegations of harassment

depend on Doan's having intentionally worn perfume

in Tom's presence for the purpose of harassing her,

there is a failure of proof.

25. On June 27, 2014, Doan held a staff meeting

for Module 10 employees in the open space located

among cubicles. Tom returned from her special

project on another floor to attend the meeting.

Doan asked her staff to gather close. The

23a

instruction was not directed to a particular

employee, but rather to the entire group so

everyone could hear. Tom alleges that Doan

directed her to sit next to Colston and then

laughed, apparently finding humor in directing

Tom to sit next to her harasser. Doan credibly

testified that, although she may have laughed for

other reasons in the course of beginning the

meeting, she did not laugh at Tom specifically and

did not "make fun" of her. Doan also testified that

she never purposely asked Tom to stand next to

Ms. Colston or her cubicle in order to trigger her

perfume allergy. Notably, there were apparently

several people present for this meeting, but no

other witness besides Tom and Doan testified about

it. The Court also notes that Doan's written

communications with Tom were uniformly

24a

appropriate and professional. The Court finds that

Tom has not established that it is more likely than

not that this incident occurred as she alleges.

26. Doan also credibly denied purposely following

Tom onto the elevator, although she acknowledged

that they may have ridden the elevator together, as

they worked in the same building, used the same

bank of elevators, and had similar break schedules.

The Court finds that Tom has failed to establish that

Doan harassed her in this way.

27. In an email dated July 15, 2014, to EEO

Counselor Officer Veronica Toledo, "to update [her]

on continued harassment," Tom describes the alleged

harassment by Doan as Doan "spending more time in

my area and making a point of talking to me" and

"coming over to me and make small talk," but does

not claim that Doan wore perfume while talking to or

25a

walking by her. No reasonable person would conclude

that Doan's actions in making small talk were

harassing, and the Court concludes they were not

harassing.

28. Tom did not testify regarding her allegations

that Doan harassed her on July 8, 2022. Because

there was no evidence at trial this incident

occurred, the Court finds that it did not occur.

29. On July 10, 2014, Tom was having a

conversation with a co-worker during a morning

break. Doan walked past Tom and her co-worker and

wished them a good morning. In an email to herself

written later that day, which was entered into

evidence, Tom characterized the incident as an

episode of harassment. Doan's conduct was not

harassing.

II.

CONCLUSIONS OF LAW

26a

A. Legal Standard

30. The only remaining claim in this case is Tom's

harassment and hostile work environment claim as

it pertains to Doan's actions. Because Tom is a

former federal employee, her claim arises under

Section 501 of the Rehabilitation Act, 29 U.S.C. §

791. Boyd v. U.S. Postal Serv., 752 F.2d 410, 413

(9th Cir. 1985). "The standards used to determine

whether an act of discrimination violated the

Rehabilitation Act are the same standards applied

under the Americans with Disabilities Act ('ADA')."

Coons v. Sec 'y of U.S. Dep't of Treasury, 383 F.3d

879, 884 (9th Cir. 2004).

31. Although "the Ninth Circuit has not decided

whether a hostile work environment claim exists

under the ADA, and it is not clear whether such a

claim exists under the Rehabilitation Act," other

27a

courts have held that such claims are cognizable.

Anello v. Berryhill, No. 18-cv-00070-DMR, 2020 WL

137109, at *10 (N.D. Cal. Jan. 13, 2020) (citing

Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d

229, 235-236 (5th Cir. 2001); Lanman u. Johnson

Cnty., 393 F.3d 1151, 1155 (10th Cir. 2004); Shaver

v. Independent Stave Co., 350 F.3d 716, 720-22 (8th

Cir. 2003); Fox v. Gen. Motors Corp., 247 F.3d 169,

175-76 (4th Cir. 2001)); see also Ford v. Marion

Cnty. Sheriffs Off, 942 F.3d 839, 852 (7th Cir. 2019)

(citing same, and Fox v. Costco Wholesale Corp., 918

F.3d 65, 74 (2d Cir. 2019), in becoming the sixth

circuit to hold that hostile work environment claims

are cognizable under the ADA). "No circuit has held

to the contrary," Ford, 942 F.3d at 852, and Kijakazi

does not argue that Tom's hostile work environment

claim is not cognizable.

28a

32. To prevail on that claim, Tom must prove:

(1) that she belongs to a protected group; (2) that

she was subjected to unwelcome harassment; (3)

that the harassment complained of was based on

her disability or disabilities; (4) that the

harassment complained of affected a term,

condition, or privilege of employment; and (5) that

the employer knew or should have known of the

harassment and failed to take prompt, remedial

action.

Anello, 2020 WL 137109, at *10 (quoting Flowers,

247 F.3d at 235-36). She must establish a

"pattern of ongoing and persistent harassment

severe enough to alter the conditions of

employment." Nichols v. Azteca Rest. Enters., Inc.,

256 F.3d 864, 871 (9th Cir. 2001) (quoting Draper

v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th

Cir. 1998)). This requires proving that her

"workplace was 'both objectively and subjectively

offensive, one that a reasonable person would find

hostile or abusive, and one that [she] in fact did

29a

perceive to be so."' Id. at 871-72 (quoting

Faragher v. City of Boca Raton, 524 U.S. 775, 787

(1998)). "Factors that bear on whether a work

environment is abusive include the frequency of

the discriminatory conduct, its. severity, whether

it is physically threatening or humiliating, or a

mere offensive utterance, and whether it

unreasonably interferes with an employee's work

performance." Anello, 2020 WL 137109, at *10

(quotation marks and citation omitted).

Allegations of a hostile work environment "must

be assessed from the perspective of a reasonable

person belonging to the [protected] group of the

plaintiff," McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1115 (9th Cir. 2004), "considering all the

circumstances." Oncale u. Sundowner Offshore

30a

Servs., Inc., 523 U.S. 75, 81 (1998) (quotation

marks and citation omitted).

33. It is not disputed that Tom is disabled. Kijakazi

disputes, however, whether any harassment

occurred.

B. Analysis

34. The frequency of the alleged harassing conduct

in this case is limited to a handful of instances

between June 3, 2014 and July 26, 2014. For three

weeks of this roughly eight-week period, Tom worked

on a special project in a work unit located on a

completely different floor from her alleged harasser,

Doan.

35. During their May 30, 2014 meeting regarding

Colston's perfume, Tom informed Doan that she had

"been around other people using perfume, but they

[were] not strong to the point of triggering [her]

31a

allergy." Thus, Doan had no reason to think that her

personal perfume was an issue. Also, as previously

noted, the record was unclear regarding the

frequency of Doan's perfume use prior to June 3.

36. Doan first became aware of Tom's sensitivity to

her own personal perfume during their June 3, 2014

meeting. Since Tom had previously only identified

Colston's perfume as problematic and denied that

others' perfumes triggered her sensitivities, it is

reasonable for Doan to have asked Tom to sit down in

Doan's cubicle to continue their conversation. When

Tom told Doan that she could not sit down because of

Doan's perfume, Doan asked Tom if she was "okay,"

and Tom confirmed that she was. They then

continued their discussion with Doan inside the

cubicle and Tom standing outside the partition. The

record does not support the conclusion that Doan's

32a

perfume continued to bother Tom once she created

distance between herself and Doan. Even if Doan's

perfume did bother Tom, however, there is no

evidence that Doan was aware of this. A reasonable

person would not find this encounter sufficiently

severe or pervasive to alter the conditions of Tom's

employment and create an abusive working

environment.

37. Since Tom acknowledges that Doan stopped

wearing perfume after the June 3, 2014, meeting and

because Doan had no knowledge of Tom's sensitivity

to her perfume prior to the June 3 meeting, a

reasonable person would not find Doan's actions as a

manager, including walking the floor, speaking to

Tom, and riding the elevator with Tom to be hostile

or abusive conduct.

33a

38. As to the June 27, 2014 meeting, Doan

reasonably requested that all staff gather closer so

that they could hear her and did not specifically

instruct Tom to get closer to Colston. The Court does

not find that Doan intentionally laughed at Tom.

39. Tom may have experienced isolated instances

in which she was made uncomfortable by other

employees' use of fragrance. These instances did not

constitute harassment because their use of perfume

in her presence was neither pervasive nor severe.

40. Tom has not proven that a reasonable person

with her disability would have

considered Doan's conduct to be hostile, offensive, or

abusive.

CONCLUSION

For the foregoing reasons, the Court finds in favor

of Defendant Kilolo Kijakazi and against Plaintiff

34a

Jennifer Tom. Defendant shall file a proposed

judgment within ten days of this order.

IT IS SO ORDERED.

Dated: November 28, 2022

if JON S.TIGAR

Vi/iitcd States District Judge

35a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JENNIFER TOM,

Plaintiff,

v.

KILOLO KIJAKAZI,

Defendant,

Case No. 19-CV-06322-JST

ORDER GRANTING IN

PART AND DENYING IN

PART DEFENDANT’S

MOTION FOR SUMMARY

JUDGMENT

Re: ECF No. 103

Before the Court is Defendant Kilolo Kijakazi’s

motion for summary judgment. ECF No. 103. The

Court will grant the motion in part and deny it in

part.

I.

BACKGROUND

Plaintiff Jennifer Tom was formerly employed by

the United States Social Security Administration

(“SSA”) as a Benefit Authorizer. She contends that

she was disabled because she has a sensitivity to

fragrances and other chemicals and also suffers from

36a

migraines with aura and vertigo. She argues that the

SSA failed to reasonably accommodate her

disabilities because it did not allow her to work from

home full-time, and that her removal as a Benefit

Authorizer, effective August 15, 2018, was

unlawfully discriminatory and retaliatory. She also

asserts that she was subjected to a hostile work

environment because, for example:

i) Since December 2013, Plaintiffs co-workers

continued to spray perfume in the office despite

having knowledge of her allergic reactions to scents;

ii) On May 30, 2014, management informed the

Plaintiff that she had to move her desk, but did not

take any action to prevent her co-worker from

spraying perfume in Plaintiffs presence;

iii) On June 3, 2014, Plaintiffs manager willingly

wore perfume during a meeting, which caused

Plaintiff to have an allergic reaction;

iv) On July 23, 2014, Plaintiff was forced to move to

another location due to irritants emanating from the

floor and permeating the room.

37a

ECFNo. 114 at 4.

II.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1331.

III.

LEGAL STANDARD

Summary judgment is proper when a “movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

genuine only if there is sufficient evidence “such that

a reasonable jury could return a verdict for the

nonmoving party,” and a fact is material only if it

might affect the outcome of the case. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

deciding a motion for summary judgment, the court

must draw “all justifiable inferences” in the

nonmoving party’s favor and may not weigh evidence

38a

or make credibility determinations. Id. at 255.

Where the party moving for summary judgment

would bear the burden of proof at trial, that party

“has the initial burden of establishing the absence of

a genuine issue of fact on each issue material to its

case.” C.A.R Transp. Brokerage Co. v. Darden Rests.,

Inc., 213 F.3d 474, 480 (9th Cir. 2000). Where the

party moving for summary judgment would not bear

the burden of proof at trial, that party “must either

produce evidence negating an essential element of

the nonmoving party’s claim or defense or show that

the nonmoving party does not have enough evidence

of an essential element to carry its ultimate burden

of persuasion at trial.” Nissan Fire & Marine Ins. Co.

v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If

the moving party satisfies its initial burden of

production, the nonmoving party must produce

39a

admissible evidence to show that a genuine issue of

material fact exists. Id. at 1102-03. It is not the

court’s duty “to scour the record in search of a

genuine issue of triable fact”; instead, the nonmoving

party must “identify with reasonable particularity

the evidence that precludes summary judgment.”

Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)

(citation omitted). If the nonmoving party fails to

make the required showing, the moving party is

entitled to summary judgment. Celotex Corp. v.

Catrett, All U.S. 317, 322-23 (1986).

IV.

DISCUSSION

Because Tom is a former federal employee, her

disability discrimination claims arise under Section

501 of the Rehabilitation Act. Boyd v. U.S.

PostalServ., 752 F.2d 410, 413 (9th Cir. 1985). “The

standards used to determine whether an act of

40a

discrimination violated the Rehabilitation Act are

the same standards applied under the Americans

with Disabilities Act (‘ADA’).” Coons v. Sec ’y of U.S.

Dept of Treasury, 383 F.3d 879, 884 (9th Cir. 2004).

To state a prima facie case under the Rehabilitation

Act, a plaintiff must demonstrate that (1) she is a

person with a disability, (2) who is otherwise qualified

for employment, and (3) suffered discrimination

because of her disability. The Americans with

Disabilities Act, whose standards of substantive

liability are incorporated in the Rehabilitation Act,

defines “disability” as: (A) a physical or mental

impairment that substantially limits one or more of

the major life activities of such individual, (B) a

record of such an impairment, or (C) being regarded

as having such an impairment.

Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005

(9th Cir. 2007) (citation omitted), superseded by

statute on other grounds, 42 U.S.C. § 12102(3)(A), as

recognized in Nunies v. HIE Holdings, Inc., 908 F.3d

428, 434 (9th Cir. 2018). “A ‘qualified individual’ is an

individual with a disability who, with or without

41a

reasonable accommodation, can perform the essential

functions of the employment position that such

individual holds or desires. ‘Essential functions’ are

fundamental job duties of the employment position

not including the marginal functions of the position.”

Bates v. United Parcel Serv., Inc., 511 F.3d 974, 989

(9th Cir. 2007) (quotation and alteration marks,

emphasis, and citations omitted). “If a disabled person

cannot perform a job’s ‘essential functions’ (even with

a reasonable

accommodation),

then the ADA’s

employment protections do not apply.” Cripe v. City of

San Jose, 261 F.3d 877, 884 (9th Cir. 2001). The

plaintiff bears “the burden of showing the existence of

a reasonable accommodation that would have enabled

him to perform the essential functions of an available

job.” Dark v. Curry County, 451 F.3d 1078, 1088 (9th

Cir. 2006). To defeat summary judgment, the plaintiff

42a

“need only show that an ‘accommodation’ seems

reasonable on its face, i.e., ordinarily or in the run of

cases... Once the plaintiff has made this showing, the

defendant/employer then must show special (typically

case- specific) circumstances that demonstrate undue

hardship in the particular circumstances.” U.S.

Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002).

In this case, Tom does not contend that the SSA

failed

to

provide

any

accommodations.

She

acknowledges in her opposition that the agency

offered multiple accommodations in response to her

requests and the recommendations of her treating

physicians:

but not limited to moving over 26 times to both

cubicles and rooms on all six floors of the Richmond,

California Western Program Center, masks, [being]

excused from answering the Agency’s 800 number,

gloves, laptop replacements, draft guards, liberal

leave, communication with co-workers electronically/

telephonically, [and] a home air purifier.

43a

ECF No. 114 at 5. Her complaint is that the SSA

knew that it could not provide a workplace

completely free of fragrances or chemicals and that it

was therefore required to allow her to telework full­

time. However, “[a]n employer is not obligated to

provide an employee the accommodation he requests

or prefers [;] the employer need only provide some

reasonable accommodation.” Zivkovic v. S. Cal.

Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)

(quotation marks and citation omitted). Thus, for

example, “[a]n employer is not required by the ADA

to create a wholly isolated work space for an

employee that is free from numerous possible

irritants, and to provide an unlimited absentee

policy.” Buckles v. First Data Res., Inc., 176 F.3d

1098, 1101 (8th Cir. 1999) (finding no ADA violation

where employer prohibited use of nail polish, moved

44a

plaintiff to “a work station in another room with

better ventilation,” and set up a system “whereby if

[the plaintiff] was sensing an irritant he could sign

off his phone, notify his supervisor, and wait until

the problem was remedied”). Tom has presented no

medical evidence that the SSA’s accommodations,

including a private, enclosed office space with an air

purifier and draft guards and limiting in-person

interactions with co-workers, were insufficient. Tom

also refused the agency’s offers to try offices in

federal buildings located in two different cities or for

her supervisor to look for jobs to which Tom might be

reassigned.

More fundamentally, Tom has not presented

evidence to demonstrate that she could perform the

essential functions of the job even with her requested

accommodation. First, she does not dispute that she

45a

requires an employer-provided laptop to perform the

essential functions of the job, or that she has been

unable to work on three different agency-provided

laptops, the second two of which were provided to her

after she complained of contamination. The third

laptop was assigned by a particular systems employee

selected by Tom, and Tom was allowed to take the

laptop home with her each day. Tom’s request for a

fourth laptop was denied, but she has presented no

evidence that working with a fourth agency-provided

laptop would produce a different outcome.

Second, even if a fourth laptop would be successful

at

not

provoking

her

fragrance

or

chemical

sensitivities, Tom has also been found to be disabled and awarded disability retirement as a result - “due to

Migraine with Aura and Vertigo.” ECF No. 113 at 219.

Tom has not presented any evidence that she would

46a

be able to perform the job of a Benefit Authorizer even

if she were permitted to work from home and given a

laptop that were acceptable to her. To the contrary,

her deposition testimony confirms that she would be

unable to work due to her migraines. For example, she

testified that, in the last month before her deposition,

she was unable to read for eight or nine days due to

her migraines and that, when that happens, she takes

medication and falls asleep for the rest of the day. Id.

at 21-22. She agreed that she is “incapacitated” on

those days, and that the month in which she had eight

or nine days was “lighter,” and that she has sometimes

been incapacitated for “three weeks straight.” Id. at

38. She described her “average day” as: “I wake up

with a migraine, take medication, try not to run into

anything, and just rest as much as possible.” Id. at 55.

She receives Botox injections approximately every

47a

three months to help with her migraines, and those

are effective for one to two weeks. But “for the rest of

the three-month period it’s cold compresses and dark

rooms.” Id. at 56; see also id. at 55-56 (describing her

headaches as “very painful,” and stating that it is

“hard to do anything when it feels like that other than

lay down and just put a cold compress on”). Based on

her own testimony, Tom cannot meet her burden of

demonstrating that she would be able to perform the

essential functions

of the job

even with the

accommodation she requested.

Tom has also failed to present evidence creating a

genuine dispute of material fact over whether her

termination was unlawfully retaliatory.

A prima facie case of retaliation requires a plaintiff to

show:

(1) involvement in a protected activity, (2) an adverse

employment action and (3) a causal link between the

48a

two. The plaintiff must present evidence adequate to

create an inference that an employment decision was

based on an illegal discriminatory criterion.... Once

the plaintiff establishes a prima facie case, the

employer has the burden to present legitimate

reasons for the adverse employment action. If the

employer carries this burden, and plaintiff

demonstrates a genuine issue of material fact as to

whether the reason advanced by the employer was a

pretext, then the retaliation case proceeds beyond the

summary judgment stage.

Coons, 383 F.3d at 887 (quotation marks and citations

omitted). Even assuming that Tom has made out a

prima facie case, the SSA has presented evidence that

Tom was terminated for being absent without leave on

over 70 occasions. Tom does not dispute that she was

absent on those dates or present any evidence that

this reason for her termination was pretextual.

Nor can Tom’s disparate treatment claim survive

summary judgment. She has not presented evidence

that “similarly situated individuals outside Pier]

protected class were treated more favorably, or other

49a

circumstances surrounding the adverse employment

action give rise to an inference of discrimination.”

Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603

(9th Cir. 2004). The closest she comes is a statement

in her opposition that “Defendant. . . allowed a [non-j

disabled benefit authorizer to work full time virtually

during the pilot program who was not designated a

disable[d] employee.” ECF No. 114 at 7. However, she

cites no evidence to support that statement. In

addition, allowing full-time telework during a pilot

program is not equivalent to allowing permanent full­

time telework.

The

Court

next

considers

Tom’s

claims

of

harassment and hostile work environment. Although

“the Ninth Circuit has not decided whether a hostile

work environment claim exists under the ADA, and it

is not clear whether such a claim exists under the

50a

Rehabilitation Act,” other courts have held that such

claims are cognizable, Anello v. Berryhill, No. 18-cv00070-DMR, 2020 WL 137109, at *10 (N.D. Cal. Jan.

13, 2020), and Kijakazi does not argue otherwise here,

ECF No. 103 at 32 (motion papers discussing standard

for a hostile work environment claim). To prevail on

such a claim, a plaintiff must prove:

(1) that she belongs to a protected group; (2) that she

was subjected to unwelcome harassment; (3) that the

harassment complained of was based on her

disability or disabilities; (4) that the harassment

complained of affected a term, condition, or privilege

of employment; and (5) that the employer knew or

should have known of the harassment and failed to

take prompt, remedial action. The disability-based

harassment must be sufficiently pervasive or severe

to alter the conditions of employment and create an

abusive working environment. Factors that bear on

whether a work environment is abusive include the

frequency of the discriminatory conduct, its severity,

whether it is physically threatening or humiliating,

or a mere offensive utterance, and whether it

unreasonably interferes with an employee’s work

performance

Id. (quotation and alteration marks and citations

5 la

omitted) (quoting Flowers v. S. Reg’l Physician Servs.

Inc., 247 F.3d 229, 235-36 (5th Cir. 2001)). Allegations

of a hostile work environment “must be assessed from

the perspective of a reasonable person belonging to the

[protected] group of the plaintiff.” McGinest v. GTE

Serv. Corp., 360 F.3d 1103, 1115 (9th Cir. 2004).

As to allegedly harassing behavior by her co­

workers, Tom’s claim cannot withstand summary

judgment because she has failed to present evidence

creating a material dispute over whether the SSA

failed to take prompt remedial action. The agency

responded to Tom’s initial complaints about the use of

perfume by Ms. Colston, one of Tom’s co-workers, by

talking to Colston and receiving her assurance that

she would stop wearing perfume to work. When Tom

complained a few months later that Colston had

resumed wearing perfume, Tom’s supervisor met with

52a

both employees, arranged for workstation moves to

allow physical separation between Tom and Colston,

allowed Tom to use an air purifier at work, and

provided

regarding

information

medical

documentation required to request a reasonable

accommodation. Similarly, when a different co-worker

inappropriately referred to Tom’s timesheets in a

Skype message to other employees, the agency “took

immediate action to remove his timekeeping duties,

thereby rendering him without any reason to have

contact with Ms. Tom or knowledge of her absences.”

ECF No. 104 A 18. Tom also complained that unknown

co-workers were contaminating her workstations with

chemicals and fragrances. Management responded by

filing requests for building facilities and the Office of

Environmental Health and Occupational Safety to

investigate, which they did in part by performing air

53a

quality tests, and the agency ultimately provided Tom

with a private, enclosed, locked office. Management

also reminded employees that some people are

sensitive to smell, asked them to refrain from using

perfume, and provided training on hidden disabilities,

■ including sensitivity to smells. No reasonable jury

could return a verdict for Tom on her claims of coworker harassment.

Regarding the incident on July 23, 2014, when Tom

contends that she “was forced to move to another

location due to irritants emanating from the floor and

permeating the room,” ECF No. 114 at 4, the only

evidence in the record concerning that date is a

statement from Tom that she “was moved to another

location due to the strong scent of burning rubber and

exhaust” and “was told by facilities that nothing could

be done to prevent the smells from the construction

54a

from permeating the floor.” ECF No. 114-1 at 10.

Instead of substantiating Tom’s claims of a hostile

work environment, this demonstrates that the agency

was

responsive

to

Tom’s

concerns:

After

she

complained of strong scents, the agency moved her out

of the allegedly contaminated area.

Finally, Tom asserts that the actions of her

supervisor, Tammie Doan, created a hostile work

environment. “An employer’s liability for harassing

conduct is evaluated differently when the harasser is

a supervisor as opposed to a coworker. An employer is

vicariously liable for a hostile environment created by

a supervisor, although such liability is subject to an

affirmative defense.” McGinest, 360 F.3d at 1119

(citation omitted). Kijakazi does not dispute that Doan

was Tom’s supervisor, nor does she raise an

affirmative defense in moving for summary judgment.

55a

She argues only that, as a matter of law, Doan’s

alleged actions were not severe or pervasive enough to

state a claim for harassment or hostile work

environment.

The Court disagrees and concludes that Tom has

raised a disputed issue of fact on this question. A jury

who believed Tom’s version of events could conclude

that Doan engaged in a pattern of harassing behavior

that a reasonable disabled person would find to be

severe and pervasive, rather than concluding, as

Kijakazi suggests,

that Doan’s behavior,

while

perhaps rude or distasteful, was not actionable

because it was

simply part of “the ordinary

tribulations of the workplace.” Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (citations

omitted). Tom presents evidence of the following: On

June 3, 2014, Doan wore perfume during her meeting

56a

with Tom - to discuss Tom’s complaints of sensitivity

to a co-worker’s perfume - although Doan did not

normally wear perfume. Tom tried to keep her

distance, but Doan kept moving closer to her. Tom

wanted to leave the meeting but stayed because Doan

told her she had to make a decision about her

workstation location before she left. During a June 27,

2014 staff meeting, Doan asked Tom to move next to

Colston, whose use of perfume gave rise to Tom’s

initial complaints. Tom “told her that I was all right

where I was and she laughed and repeated what I

said. All the other Benefit Authorizer’s [sic] were

confused and Ms. Colston was visibly upset.” ECF No.

114-1 at 19. On July 8, 2014, Doan asked Tom to stand

next to Colston’s new cubicle when Tom was on her

way out at the end of the day. Although Tom told Doan

that she would not do so because of the smell of

57a

perfume, Doan repeated the request. When Doan

realized that Tom was not going to move closer to

Colston’s cubicle, Doan finally told Tom she could go

home. On July 10, 2014, Doan followed Tom as Tom

was leaving for the day:

We’re on the fifth floor. She followed me from

somewhere in between the sign-in desk, sign-in sheet,

which is in the middle of - more or less the middle of

the unit all the way to the elevator. She got on the

elevator with me while wearing perfume, rode the

elevator all the way down from the fifth floor to the

first floor with me and just as the elevators were

shutting, she tried to keep me in the elevator to have

a conversation with her.

I told her I know you are wearing perfume. It’s the

end of the day. I have the right to go home un­

harassed. She just kind of looked at me and rode the

elevator back up by herself. She would do that during

break. She would follow me and do the same thing

during meetings.

ECF No. 105-11 at 61. Additionally:

[Doan] would during break come and harass me while

I was working or - yeah, I would work during breaks.

I didn’t have anywhere else to go. She would come and

harass me, you know, kind of joke about the situation

58a

and how funny she thought it was. She would call me

into meetings when she was wearing perfume.

Id. at 59-60. Crediting this evidence, a jury could

conclude that Doan’s behavior was more than an

isolated incident and was, instead, sufficiently severe

or pervasive to alter the conditions of Tom’s

employment. Summary judgment on this claim is

therefore denied.

CONCLUSION

Kijakazi’s motion for summary judgment is granted

in part and denied in part. The motion is denied as to

Tom’s hostile work environment claim based on her

allegations regarding Doan’s behavior. The motion is

granted in all other respects.

IT IS SO ORDERED.

Dated:

f V JON SUGAR Q

\uJited States District JuC^e

December 13, 2021

59a

STEPHANIE M. HINDS (CABN 154284)

United States Attorney

MICHELLE LO (NYRN 4325163)

Chief, Civil Division

WENDY M. GARBERS (CABN 213208)

J. WESLEY SAMPLES (CABN 321845)

Assistant United States Attorneys

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495

Telephone: (415) 436-6475

FAX: (415) 436-7234

wes. samples@usdoi. gov

Attorneys for Defendant

KILOLO KIJAKAZI

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

JENNIFER TOM,

Case No. 19-cv-06322-JST

Plaintiff,

[PROPOSED]

v.

JUDGEMENT

KILOLO KIJAKAZI,

Defendant,

ORDERED, ADJUDGED, AND DEGREED THAT

on November 28, 2022, the court announced Amended

60a

Findings of Facts and Conclusion of Law (Dkt. No.

156) pursuant to Federal Rules of Civil Procedure 52.

Pursuant to Federal Rule of Civil Procedure 58, the

court hereby enters judgment in favor of Defendant

and against Plaintiff. Accordingly, the Clerk is hereby

directed to enter Judgment forthwith. Pursuant to

Civil Local Rule 54, no later than 14 days after the

entry of this judgment, the Defendant must file a bill

of costs, if any.

DATED: December 13, 2022

United States District Judge

JPROPOSED1 JUDGMENT

Case No. 19-06322 JST

61a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER TOM,

Plaintiff-Appellant,

v.

MARTIN

O’MALLEY,*

Commissioner of

Social Security,

Defendant-Appellee.

No. 22-16977

D.C. No. 4:19-cv-06322-JST

Northern District of

California, Oakland

ORDER

FILED

JUN 18 2024

MOLLY C. DWYER. CLERK

U.S. COURT OF APPEALS

Before: BENNETT, BADE, and COLLINS, Circuit

Judges.

The panel has unanimously voted to deny the

petition for panel rehearing.

The petition for panel rehearing is DENIED.

62a

Additional material

from this filing is

available in the

Clerk's Office.