FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EILEEN CRAIG, 

Plaintiff-Appellant,

v.

M&O AGENCIES, INC., an Arizona

corporation dba Mahoney Group; No. 05-16427

LEON BYRD, individually and in his

D.C. No. capacity as President of M&O  CV-04-00232-MLR Agencies, Incorporated dba The

Mahoney Group; PATRICIA OPINION

ROBERTS, an individual & wife of

Leon Byrd; JOHN/JANE DOES, 1-10;

ABC CORP, 1-10; ABC

PARTNERSHIPS, 1-10,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Manuel L. Real, District Judge, Presiding

Argued and Submitted

June 15, 2007—San Francisco, California

Filed August 9, 2007

Before: Alfred T. Goodwin, Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Bybee

9511
COUNSEL

Ivan K. Mathew & Susan T. Mathew, Mathew & Mathew,

Phoenix, Arizona, for the appellant. 

Stephanie J. Quincy & Gregg J. Tucek, Sherman & Howard,

Phoenix, Arizona, for the appellees. 

CRAIG v. M&O AGENCIES, INC. 9515
OPINION

BYBEE, Circuit Judge: 

Eileen Craig appeals the district court’s grant of summary

judgment in favor of M&O Agencies (dba The Mahoney

Group),1 Leon Byrd and Patricia Roberts (collectively “Appellees”) in her sexual harassment suit. Craig alleges that the

repeated advances of her direct supervisor, Leon Byrd, and

the company’s cursory investigation constituted an actionable

claim under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq., as well as various Arizona state laws.

We reverse the grant of summary judgment with respect to

The Mahoney Group on the Title VII hostile environment

claim and the assault and battery claim brought under a theory

of respondeat superior, but affirm summary judgment on all

other claims. We affirm the district court’s grant of summary

judgment for defendants on all claims with respect to Patricia

Roberts, and all claims (except assault and battery and intentional infliction of emotional distress) with respect to Leon

Byrd. With respect to the assault and battery claim, we affirm

the district court’s denial of summary judgment with respect

to Leon Byrd, but we reverse the dismissal and reinstate the

claim. We reverse the district court’s grant of summary judgment for Leon Byrd on the intentional infliction of emotional

distress claim and remand to the district court for further proceedings. 

I. BACKGROUND

This suit stems from incidents inappropriate in any work

environment and made all the more egregious here because

they were perpetrated on the plaintiff by her direct supervisor.

1M&O Agencies is the legal name of the Arizona corporation which

does business as The Mahoney Group. For convenience, we will defer to

the practice of the parties and refer to the corporate defendant as “The

Mahoney Group.” 

9516 CRAIG v. M&O AGENCIES, INC.
The following facts are largely undisputed by the parties.

Craig worked for The Mahoney Group as the branch manager

in Tucson and reported to Byrd who was the interim president. Over the course of several months, Byrd made repeated

inappropriate comments to Craig about her legs and how she

should wear shorter skirts. Although Craig thought the comments were obnoxious, she was not particularly offended. The

situation took a turn for the worse on August 8, 2003, when,

at Byrd’s invitation, Craig met him for drinks after work at an

On the Border restaurant. She had previously been to other

happy hours and lunches with Byrd to discuss work related

matters and thought this would be a similar meeting. Craig

and Byrd drank wine and at one point, Byrd asked Craig “if

she had ever thought of making love to him” and told her that

he would like to take off the blue dress she was wearing.

Later Byrd invited her back to his house to drink more wine

in his hot tub and told her that “it’s not a matter of if but

when” something would happen between them. Craig laughed

and shook her head at Byrd’s comments but did not leave the

restaurant. 

Around 8:00 p.m., Craig excused herself to go to the restroom, and moments later Byrd followed her into the women’s

bathroom. When Craig exited the stall, Byrd approached her,

grabbed her arms, “gave her an open-mouthed kiss and stuck

his tongue in her mouth.” The kiss ended when someone

walked into the restroom. Byrd exited and Craig remained in

the restroom for five minutes to compose herself, after which

she picked up her purse from the table and left the restaurant

alone while Byrd was paying the check. Byrd called Craig’s

phone later that night, but hung up when her husband

answered. Craig’s husband urged her to report the incident,

but she refused. 

Approximately one week after the happy-hour incident, the

tenacious Byrd called Craig from the golf course, told her she

was beautiful and asked her out for another drink, which she

declined. Undeterred, Byrd later called Craig from a hotel

CRAIG v. M&O AGENCIES, INC. 9517
room in Wisconsin and upon his return to Tucson went into

Craig’s office and repeatedly asked her if she would like to

make love to him. Craig’s response was consistently an

emphatic “no.” On August 14, 2003, Byrd told Craig that he

“wanted” her and asked her if she remembered telling him

that she “wanted to make love to him.” Craig said “nothing’s

[sic] is going to happen between us” and denied ever telling

him that she “wanted to make love to him.” 

Shortly thereafter Byrd apologized to Craig and told her

that he wanted to remain friends and put the whole situation

behind him, but two days later asked Craig why she was cold

and distant toward him. He again asked her why she didn’t

remember saying that she wanted to “make love to him,” and

told her that he still had feelings for her, but said that if she

wanted him to leave her alone, he would do so. At some point

Byrd told Craig that he didn’t think he could work with her

anymore, but never explicitly conditioned her continued

employment or promotion on entering a sexual relationship

with him. On August 27, 2003, Craig finally reported Byrd’s

conduct to Dawn Zimbleman, one of the individuals (in addition to Byrd) listed on the company’s sexual harassment policy to whom complaints should be made. Reporting the claim

spurred the company to immediate action. Byrd was

instructed to stay away from Craig and to stop making sexual

comments to her, and Craig began reporting to John McEvoy,

another company executive. Additionally, the company

appointed a senior executive to investigate the complaint, but

replaced him with the Group’s outside corporate counsel,

Denis Fitzgibbons, when it was brought to the company’s

attention that the executive had previously been investigated

for sexual harassment. Craig alleges that she provided Fitzgibbons with the names of other people who had been sexually harassed by Byrd, but Fitzgibbons declined to include any

of this information in his report or follow up on the leads. 

After investigating, Fitzgibbons recommended that (1) the

Group offer Craig and her husband counseling sessions at the

9518 CRAIG v. M&O AGENCIES, INC.
company’s expense; (2) Byrd receive a severe written reprimand worded in such a way as to put him on notice that if he

engaged in this type of behavior again, he would be terminated; (3) Byrd attend sexual harassment sensitivity training;

and (4) all of the Group managers and supervisors receive

sexual harassment training in the near future. 

In late September 2003, Craig was told that the investigation was complete, and she began reporting to Byrd again.

Craig claims that Byrd retaliated against her “by ignoring her,

failing to respond to her emails, providing budget information

to her late, and by corresponding with the corporate office

instead of her” about situations she would normally handle.

The company did conduct sexual harassment training for the

executives, but Craig alleges that during one sexual harassment training session, the Company’s chairman came in and

made an inappropriate joke. 

Craig claims that due to the ineffective response of The

Mahoney Group and Byrd’s repeated comments, she began to

get sick, experienced panic attacks, and had emotional difficulties and trouble sleeping. The company claimed it was

unable to remove Byrd from the Tucson office or transfer

Craig, and consequently re-assigned some of her job functions. Eventually Craig resigned, citing medical problems and

stress. 

Craig filed a complaint, which she later amended, alleging:

(1) sex discrimination under Title VII, (2) intentional infliction of emotional distress, (3) negligent investigation, (4)

assault and battery, (5) negligent hiring supervision and retention, (6) an Arizona state law civil rights claim, (7) retaliation

in violation of Title VII, (8) invasion of privacy, (9) defamation and slander, and (10) vicarious liability under a theory of

respondeat superior. She listed The Mahoney Group, Leon

Byrd and Byrd’s wife, Patricia Roberts, as defendants. 

Appellees filed a motion for summary judgment on February 8, 2005. After a hearing, the district court granted sumCRAIG v. M&O AGENCIES, INC. 9519
mary judgment as to defendants The Mahoney Group and

Patricia Roberts on all claims. The court further granted summary judgment with respect to Byrd as to all causes of action

except for the assault and battery claim, which he dismissed

without prejudice to allow for filing in state court. We note

that contrary to common court practices, the district court did

not explain its reasoning either orally from the bench or in its

terse order. 

II. DISCUSSION

A. Standard of Review 

We review a grant of summary judgment de novo to determine whether there are any genuine issues of material fact at

issue and whether the district court correctly applied the relevant law. Sengupta v. Morrison-Kundsen Co., 804 F.2d 1072,

1074 (9th Cir. 1986). All reasonable inferences must be

drawn in the nonmoving party’s favor, but are limited “to

those upon which a reasonable jury might return a verdict.”

U.S. ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815

(9th Cir. 1995); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986). We may affirm if the result reached by

the district court was correct even if the district court relied

on an erroneous ground. Lowe v. City of Monrovia, 775 F.2d

998, 1007 (9th Cir. 1985), as amended, 784 F.2d 1407 (9th

Cir. 1986). 

B. Craig’s Title VII Claims Against The Mahoney Group 

[1] We first address The Mahoney Group’s liability under

Title VII for Byrd’s actions. Title VII of the Civil Rights Act

of 1964 forbids an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII’s

prohibition “is not limited to ‘economic’ or ‘tangible’ dis9520 CRAIG v. M&O AGENCIES, INC.
crimination,” but includes sexual harassment that is so “severe or pervasive” as to “alter the conditions of [the victim’s]

employment and create an abusive working environment.”

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(internal quotation marks and citations omitted, alterations in

original). 

[2] The Court outlined the principles governing employer

liability for sexual harassment in Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca

Raton, 524 U.S. 775 (1998), both of which involved the

harassment of an employee by her direct supervisor. The

Court divided cases in which a supervisor harassed a subordinate into two categories. The first category involves situations

where “a supervisor exercising his authority to make critical

employment decisions on behalf of his employer takes a sufficiently concrete action with respect to an employee.” Holly D.

v. Cal. Inst. of Tech., 339 F.3d 1158, 1167 (9th Cir. 2002). In

these situations, termed “tangible employment action” or

“quid-pro-quo” harassment, the employer may be held vicariously liable under traditional agency law. Id.; see also Ellerth,

524 U.S. at 760-65. In the second category, which are known

as “hostile environment” claims, the Court tempered the

agency principles by allowing the employer to assert an affirmative defense if the employer “is able to establish that it

acted reasonably and that its [ ] employee acted unreasonably.” Holly D., 339 F.3d at 1167; see also Ellerth, 524 U.S.

at 760-65. We consider both theories. 

1. Liability under a quid pro quo theory 

To prove actionable harassment under a quid pro quo or

“tangible employment action” theory, Craig must show that

Byrd “explicitly or implicitly condition[ed] a job, a job benefit, or the absence of a job detriment, upon an employee’s

acceptance of sexual conduct.” Nichols v. Frank, 42 F.3d 503,

511 (9th Cir. 1994). If a plaintiff is able to make such a showing, the employer is strictly liable for the supervisor’s conCRAIG v. M&O AGENCIES, INC. 9521
duct. Id. at 510 (“employers are held strictly accountable if

they place in positions of authority persons who extract sexual

favors from those over whom they exercise power.”). 

[3] Craig does not allege that Byrd explicitly conditioned

her continued employment with The Mahoney Group on her

acquiescing to sexual relations with him. She did testify that

she felt she had to consent if she wanted to keep her job, yet

she offers little else to support her contention. Byrd’s comment “I just don’t think I can work with you anymore” is

merely a “vague and unsupported allegation,” which we have

held is insufficient to cause a reasonable woman to believe

that retaining her job was conditioned on having sex with her

supervisor. See Holly D., 339 F.3d at 1176. Additionally, several other senior executives approached Craig after she

reported the harassment and reassured her that her job was not

in jeopardy. Because Craig, who did not acquiesce to Byrd’s

demands, was neither demoted nor fired, nor did she suffer

any other “tangible employment action,” id. at 1173, we agree

with the district court that Craig has not made out a prima

facie case for liability under Title VII on a theory of quid pro

quo harassment. 

2. Liability under a hostile environment theory 

Craig alternatively could sustain her Title VII action under

a hostile work environment theory of liability. To make a

prima facie case of a hostile work environment, a person must

show “that: (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and

(3) the conduct was sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive working environment.” Fuller v. City of Oakland, 47

F.3d 1522, 1527 (9th Cir. 1995) (internal quotations omitted).

Additionally, “[t]he working environment must both subjectively and objectively be perceived as abusive.” Id. (citing

Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-21 (1993)).

Objective hostility is determined by examining the totality of

9522 CRAIG v. M&O AGENCIES, INC.
the circumstances and whether a reasonable person with the

same characteristics as the victim would perceive the workplace as hostile. Id. Finally, to find a violation of Title VII,

“conduct must be extreme to amount to a change in the terms

and conditions of employment.” Faragher, 524 U.S. at 788;

see also Fuller, 47 F.3d at 1527. 

[4] An employer may be vicariously liable under a hostile

environment theory when the harassment is perpetrated by a

supervisor “with immediate (or successively higher) authority

over the employee.” Faragher, 524 U.S. at 807. When no

“tangible employment action” (such as firing or demotion) is

taken, an employer may avoid liability by asserting a “reasonable care” defense. An employer can sustain the affirmative

defense if it shows by the preponderance of the evidence “(a)

that the employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and (b) that

the plaintiff employee unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.” Id.; see also Holly D.,

339 F.3d at 1177. Reviewing the record de novo to determine

whether summary judgment was proper, we conclude that

there are sufficient triable issues of fact to overcome summary

judgment with respect to Craig’s prima facie case, and that

The Mahoney Group did not successfully assert the “reasonable care” affirmative defense. 

a. Craig’s prima facie case 

Byrd’s conduct clearly satisfies the first two prongs of the

Fuller test. Byrd’s behavior was explicitly sexual in nature,

and unwelcome, as Craig repeatedly rebuffed his advances

and eventually reported his conduct to the company. We also

find that Byrd’s conduct meets the requirement of being both

subjectively and objectively abusive. Craig testified that she

felt Byrd’s comments and actions—particularly the incident

in the bathroom—were abusive and made her feel uncomfortable. The conduct also met the objective standard: A reasonCRAIG v. M&O AGENCIES, INC. 9523
able woman in Craig’s position could feel that Byrd’s

comments and actions were hostile, demeaning and abusive.

[5] Craig’s prima facie showing turns on whether or not

Byrd’s actions were pervasive and serious enough to amount

to “a change in the terms and conditions of employment.”

Faragher, 524 U.S. at 788. The Supreme Court has cautioned

that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”

2

Id. (internal citation and quotation marks omitted); see also

Candelore v. Clark County Sanitation Dist., 975 F.2d 588,

590 (9th Cir. 1992) (per curiam) (finding “isolated incidents

of sexual horseplay” insufficient to make a working environment “hostile”). Appellees draw our attention to some of our

prior cases to suggest that conduct must be more egregious

than Byrd’s in order to sustain an action under Title VII. See,

e.g., Little v. Windermere Relocation, Inc., 301 F.3d 958, 967-

68 (9th Cir. 2002) (involving a plaintiff who was raped three

times in one night by a business associate whose actions were

essentially condoned by the employer); Draper v. Coeur

Rochester, Inc., 147 F.3d 1104, 1105-06 (9th Cir. 1998)

(involving an employee who made sexual remarks to a female

co-worker over the loudspeakers at work and commented

about her body to male co-workers). Although these shocking

examples amply illustrate a level of conduct that is sufficient,

they do not establish minimum behavior. We are not persuaded that Title VII requires proof of such severe or shocking behavior. 

[6] We have repeatedly held that sexual-based conduct that

is abusive, humiliating or threatening is sufficient to make a

prima facie claim under Title VII and have found liability in

2Factors a court may consider are “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.” Harris, 510 U.S. at 23. 

9524 CRAIG v. M&O AGENCIES, INC.
situations where the conduct was much less onerous than

Byrd’s propositions. See, e.g., Ellison v. Brady, 924 F.2d 872,

873, 880 (9th Cir. 1991) (reversing a summary judgment

grant for the employer, finding that a reasonable woman could

find a colleague’s misguided “love letter” hostile and abusive,

and holding that “[w]ell-intentioned compliments by coworkers or supervisors can form the basis of a sexual harassment cause of action”); Steiner v. Showboat Operating Co.,

25 F.3d 1459, 1461-63 (9th Cir. 1994) (reversing a grant of

summary judgment where a plaintiff’s supervisor called her

“offensive names based on her gender,” confronted her in

front of other employees and customers and criticized her

using derogatory, gender-based language); Fuller, 47 F.3d at

1522, 1527-28 (reversing a grant of summary judgment for

the defendant city, finding that the behavior of plaintiff’s exboyfriend—repeatedly calling her house and hanging up,

threatening to kill himself, running her off the road and getting her unlisted number—constituted an actionable claim

under Title VII). 

[7] Byrd’s conduct falls somewhere between mere isolated

incidents or offhand comments, which do not amount to a

Title VII claim, see, e.g., Brooks v. City of San Mateo, 229

F.3d 917 (9th Cir. 2000); Kortan v. Cal. Youth Auth., 217

F.3d 1104, 1106 (9th Cir. 2000), and serious and pervasive

harassment, that clearly comes within Title VII, see, e.g.,

Draper, 147 F.3d at 1105-06. Although Byrd’s actions were

physically less threatening than those at issue in Fuller,

Byrd’s position as Craig’s immediate boss made his actions

emotionally and psychologically threatening; repeated pressure to perform sexual favors for one’s boss is certainly more

coercive than the misguided “love letter” at issue in Ellison.

Craig was not subjected to Byrd’s comments and propositions

for a period of years, however, the time period over which it

occurred was not de minimis. The harassing behavior

included repeated comments several months before the bathroom encounter and included at least four significant incidents

after. Byrd’s actions, when viewed from his perspective,

CRAIG v. M&O AGENCIES, INC. 9525
might seem innocuous enough, but when viewed from the

perspective of a “reasonable woman,” his behavior could be

understood to be so obnoxious that it “unreasonably interferes

with work performance” and, consequently, “can alter a condition of employment and create an abusive working environment.” Ellison, 924 F.2d at 877; see also Steiner, 25 F.3d at

1463. 

[8] Craig alleges that Byrd’s actions resulted in a concrete

change in her working environment. Specifically, she alleges

she was removed from many of her duties, received budgets

late, had some of her duties reassigned, and was forced to

interact with Byrd despite his continued propositions. She

claims that these additional stresses in the workplace made

her nervous, spawned anxiety attacks and affected her health.

Each of her complaints standing alone might not satisfy the

standard, but in the aggregate, they are sufficiently serious to

amount to an alteration in her condition of employment. We

do not know if Craig’s claim will ultimately persuade the trier

of fact. However, when viewing the facts in the record in the

light most favorable to the non-moving party, we conclude

that Craig has alleged sufficient facts to state a prima facie

case for a violation of Title VII. 

b. The Mahoney Group’s affirmative defense

[9] The Mahoney Group argues that even if Craig has

alleged sufficient facts to support her Title VII claim, because

Craig did not suffer “tangible employment action,” it is entitled to assert an affirmative defense. See Pa. State Police v.

Suders, 542 U.S. 129, 148-49 (2004); Holly D., 339 F.3d at

1168-69. As we previously pointed out, there are two steps to

proving a “reasonable care” affirmative defense. First, the

employer must show that it exercised reasonable care to prevent and correct any sexually harassing behavior. Second, the

employer must show that the employee unreasonably failed to

take advantage of the preventative or corrective opportunities

provided by the employer. See Faragher, 524 U.S. at 807.

9526 CRAIG v. M&O AGENCIES, INC.
After examining the record, we hold that The Mahoney Group

satisfied the first prong of the affirmative defense—that the

company “exercised reasonable care to prevent and correct

promptly any sexually harassing behavior.” Id. Specifically,

the company had a mechanism in place for filing complaints

about sexual harassment. When Craig finally did complain,

The Mahoney Group addressed the situation promptly: It told

Byrd to stay away from Craig, hired outside counsel to investigate and make recommendations, had Craig report to

another individual other than Byrd and conducted sexual

harassment training.3 These responsible and prompt actions

satisfy the first prong of the test. 

[10] The company’s affirmative defense fails on the second

prong, however, because The Mahoney Group cannot show

that Craig “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.” Id. at 807. The Mahoney Group argues that Craig

unreasonably delayed reporting the harassment because she

waited until August 27, 2003 to file a complaint with the company, some 19 days after the incident at the restaurant; it suggests that if Craig had reported the behavior earlier, it is quite

possible that Byrd would not have made the subsequent phone

calls or repeatedly propositioned her at work. However, we do

not think that in this situation a 19-day delay is unreasonable;

an employee in Craig’s position may have hoped the situation

would resolve itself without the need of filing a formal complaint, and she justifiably may have delayed reporting in

hopes of avoiding what she perceived could be adverse—or

at least unpleasant—employment consequences. Additionally,

Craig’s behavior is even more reasonable when one considers

that Byrd’s behavior continued until at least August 20, 2003.

3Craig alleges that the investigation the company undertook was a

“sham” and alleges that outside counsel failed to interview several individuals Craig claimed had also been harassed by Byrd. Because The

Mahoney Group’s affirmative defense fails on the second prong, we need

not address this issue, although it may be a relevant inquiry on remand.

CRAIG v. M&O AGENCIES, INC. 9527
We cannot see how a delay of a mere seven days (including

the weekend) rises to the level of being “unreasonable.”

Craig’s delay is markedly different from cases where victims

have allowed the harassment to continue for a period of

months or years before finally reporting it to the appropriate

authority. See, e.g., Holly D., 339 F.3d at 1178 (noting that

the plaintiff waited a full two years from the first sexual incident and a full year after she testified the sexual activity was

unwelcome before reporting the behavior); Montero v. AGCO

Corp., 192 F.3d 856, 863 (9th Cir. 1999) (finding a two-year

delay in reporting the conduct to be unreasonable); see also

Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1180-82 (9th Cir.

2001) (holding that failure to report the behavior to the company was unreasonable). 

[11] We hold that The Mahoney Group’s affirmative

defense fails, as Craig’s minor delay in reporting the behavior

did not meet the stringent standard outlined in Faragher. Consequently, we reverse the district court’s grant of summary

judgment for The Mahoney Group and remand for further

proceedings. We express no opinion as to whether Craig

should prevail on this claim upon remand. 

C. Craig’s Title VII Claim Against Roberts and Byrd 

[12] We have long held that Title VII does not provide a

separate cause of action against supervisors or co-workers.

See Holly D., 339 F.3d at 1179; Pink v. Modoc Indian Health

Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998); Miller v.

Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993).

Consequently, we affirm the district court’s grant of summary

judgment for Patricia Roberts and Leon Byrd on Craig’s Title

VII claim. 

D. Craig’s State Law Claims 

Finally, we address Craig’s various state law claims. 

9528 CRAIG v. M&O AGENCIES, INC.
1. Intentional infliction of emotional distress 

[13] Craig first claims damages for intentional infliction of

emotional distress. To establish a prima facie case, Craig must

demonstrate (1) Appellees engaged in “extreme and outrageous conduct;” (2) Appellees either intended to cause “emotional distress or reckless disregard of the near certainty that

such distress will result from [Appellees’] conduct;” and (3)

Craig suffered “severe emotional distress” as a result of

Appellees’ conduct. Wallace v. Casa Grande Union High

Sch. Dist. No. 82 Bd. of Governors, 909 P.2d 486, 495 (Ariz.

Ct. App. 1995). To satisfy the first prong, the conduct must

be “so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized

community.” Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668

(Ariz. Ct. App. 1969), overruled on other grounds by Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781 (Ariz. 1989).

Drawing all inferences in Craig’s favor, U.S. ex rel. Anderson, 52 F.3d at 815, Craig has made a prima facie showing

with respect to the second and third prongs; the relevant questions is whether Byrd’s conduct was so “outrageous” to satisfy the standard articulated in Wallace and Cluff. We

conclude that it was and reverse the district court’s grant of

summary judgment. Appellees argue that Craig’s claim is

“similar to the many other sets of facts courts have rejected

as ‘outrageous.’ ” However, the cases they cite are instances

involving behavior that a reasonable finder of fact could find

less “outrageous” than Byrd’s actions. See, e.g., Cluff, 460

P.2d at 668 (finding no IIED claim in “the act of an insurance

adjuster in simply contacting a person to whom his company

may be liable in order to obtain a settlement of that claim,

even after retention of counsel”); Wallace, 909 P.2d at 495

(affirming a grant of summary judgment on an IIED claim

because “recommendations and decisions on nonrenewal of

[plaintiff’s] administrator contract, the changing of her duties

and the reduction of her salary” were lawful and not “outraCRAIG v. M&O AGENCIES, INC. 9529
geous”); Nelson v. Phoenix Resort Corp., 888 P.2d 1375,

1386-87 (Ariz. Ct. App. 1994) (finding that the dismissal of

an employee in front of the news media was not conduct that

would sustain an IIED claim); Mintz v. Bell Atl. Sys. Leasing

Int’l, Inc., 905 P.2d 559, 562-64 (Ariz. Ct. App. 1995) (finding that termination decisions are generally insufficient to

directly raise an IIED claim and holding that defendant’s

“failing to promote Plaintiff, forcing her to return to work,

and hand delivering a letter to her while in the hospital” was

not “extreme” or “outrageous” conduct). 

[14] The Restatement of Torts, cited with approval by the

Cluff, Mintz, and Nelson courts suggests that a reasonable trier

of fact could find that Byrd’s conduct rises to the level of outrageousness:

The liability clearly does not extend to mere insults,

indignities, threats, annoyances, petty oppressions,

or other trivialities. The rough edges of our society

are still in need of a good deal of filing down, and

in the meantime plaintiffs must necessarily be

expected and required to be hardened to a certain

amount of rough language, and to occasional acts

that are definitely inconsiderate and unkind. There is

no occasion for the law to intervene in every case

where someone’s feelings are hurt. There must still

be freedom to express an unflattering opinion, and

some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

Restatement 2d of Torts, § 46, comment (d). Byrd’s behavior

did not comprise “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Despite society’s “rough edges,” Craig should not be required to become

“hardened to” her supervisor repeatedly propositioning inside

and outside of the office, following her into the bathroom,

standing outside the toilet stall and then grabbing her and

sticking his tongue in her mouth. While this conduct is

9530 CRAIG v. M&O AGENCIES, INC.
deplorable in any setting, a reasonable observer or trier of fact

could find it to be “outrageous” and “extreme,” particularly in

an employment context. Consequently, we reverse the district

court’s grant of summary judgment with respect to Byrd on

Craig’s claim of intentional infliction of emotional distress. 

[15] Arizona law is clear, however, that an employer is

rarely liable for intentional infliction of emotional distress

when one employee sexually harasses another. Liability for

the employer typically attaches only when a company utterly

fails to investigate or remedy the situation. See, e.g., Ford v.

Revlon, Inc., 734 P.2d 580, 585-86 (Ariz. 1987); Smith v. Am.

Express Travel Related Servs. Co., Inc., 876 P.2d 1166, 1173-

74 (Ariz. Ct. App. 1994). The Mahoney Group did not abdicate its duty to investigate and take remedial measures once

Craig reported Byrd’s conduct. We conclude that Craig has

not met the high standard under Arizona law and we affirm

the district court’s grant of summary judgment in favor of The

Mahoney Group and Patricia Roberts on this claim. 

2. Negligent investigation, hiring, supervision and retention 

[16] Craig next asserts two related claims: negligent investigation and negligent hiring, supervision and retention of

Byrd. With the exception of “willful misconduct” on the part

of the employer, these claims are barred under Arizona law by

the remedy of workers compensation. Ford, 734 P.2d at 586;

Irvin Investors, Inc. v. Superior Court, 800 P.2d 979, 980-82

(Ariz. Ct. App. 1990); see also Mosakowski v. PSS World

Med., Inc., 329 F. Supp. 2d 1112, 1129-31 (D. Ariz. 2003)

(interpreting Arizona law). Craig has made no showing that

The Mahoney Group’s actions amounted to “willful misconduct” and we consequently affirm the grant of summary judgment for all Appellees on these two claims. 

3. Assault and battery 

CRAIG v. M&O AGENCIES, INC. 9531
[17] Craig further alleges that Byrd’s kiss in the bathroom

constitutes assault and battery. The district court granted summary judgment with respect to Roberts and The Mahoney

Group, but denied summary judgment and dismissed the

claim with respect to Byrd on this claim.4 Craig has made a

prima facie case under Arizona law that the kiss was an

unwelcome “offensive touching.” Johnson v. Pankratz, 2 P.3d

1266, 1268-69 (Ariz. Ct. App. 2000). We affirm the district

court’s denial of summary judgment with respect to Byrd, but

reverse its dismissal and reinstate Craig’s assault and battery

claim.5 We affirm the grant of summary judgment in favor of

Roberts. 

[18] With respect to The Mahoney Group, under Arizona

law, Craig would be entitled to recover from the company for

any of Byrd’s tortious acts as long as he was acting within the

scope of his employment. See State v. Schallock, 941 P.2d

1275, 1279-81 (Ariz. 1997); Baker ex rel. Hall Brake Supply,

Inc. v. Stewart Title & Trust of Phoenix, Inc., 5 P.3d 249, 254

(Ariz. Ct. App. 2000); see also Wiper v. Downtown Dev.

Corp., 732 P.2d 200, 201 (Ariz. 1987). The district court did

not explain why no triable issue exists with regard to whether

Byrd could be considered to have been acting within the

scope of his employment when he took Craig to the On the

Border restaurant. We reverse the district court’s grant of

summary judgment in favor of The Mahoney Group with

respect to liability for Byrd’s alleged assault and battery and

remand to the district court for further proceedings. 

4. Invasion of privacy 

4Craig has since re-filed this claim against Byrd in state court. 

5We assume that the district court dismissed the state assault and battery

claim because it dismissed her Title VII claims, which were the basis for

the district court’s jurisdiction. See 28 U.S.C. §§ 1331, 1367(a). Because

we hold that at least one of Craig’s federal claims survives summary judgment, we reverse the dismissal of her surviving state claim as well. See 28

U.S.C. § 1367(c)(3). 

9532 CRAIG v. M&O AGENCIES, INC.
[19] Craig also alleges invasion of privacy under Arizona

law. Although Byrd’s conduct was inappropriate, we conclude that it does not meet the stringent standard required by

Arizona law. See Hart v. Seven Resorts, Inc., 947 P.2d 846,

853 (Ariz. Ct. App. 1997) (holding that an individual is only

liable for an invasion of privacy only if he “intentionally

intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the

intrusion would be highly offensive to a reasonable person”);

Med. Lab. Mgmt. Consultants v. Am. Broad. Cos. Inc., 30 F.

Supp. 2d 1182, 1189 (D. Ariz. 1998) (holding that a plaintiff

can only recover if she has an “objectively reasonable expectation of seclusion or solitude in the place” (emphasis omitted)). Craig had no reasonable expectation of privacy in the

common area of the restroom, where she would expect her

conduct to be observed by other individuals in the restroom.

See, e.g., United States v. Billings, 858 F.2d 617, 618 (10th

Cir. 1988) (per curiam) (holding that no reasonable expectation of privacy exists as to what “can be observed by any ordinary patron of a public restroom”). Byrd only entered the

common area of the restroom; consequently, we affirm the

grant of summary judgment in favor of all Appellees on this

claim. 

5. Defamation 

[20] Craig takes issue with some of the statements Byrd

made to the investigator, and alleges that his mischaracterizations are defamatory and constitute slander. Under Arizona

law, Craig must show that Byrd’s statements were false and

brought her into “disrepute, contempt or ridicule, or . . .

impeach[ed her] honesty, integrity, virtue, or reputation.” Turner v. Devlin, 848 P.2d 286, 289 (Ariz. 1993). She cannot

make such a showing because statements made during sexual

harassment investigations are generally conditionally privileged. Miller v. Servicemaster by Rees, 851 P.2d 143, 145-46

(Ariz. Ct. App. 1992); Rest. Torts § 596. We affirm the grant

CRAIG v. M&O AGENCIES, INC. 9533
of summary judgment for all Appellees with respect to this

claim.6

III. CONCLUSION

With respect to The Mahoney Group, we reverse the district court’s grant of summary judgment in favor of The

Mahoney Group on Craig’s Title VII hostile environment

claim and her claim for respondeat superior liability on the

assault and battery claim; we affirm the grant of summary

judgment in favor of The Mahoney Group on all other claims.

We affirm the district court’s denial of summary judgment for

Leon Byrd on assault and battery, but reverse its dismissal

and reinstate Craig’s claim; we reverse the grant of summary

judgment for Leon Byrd on the intentional infliction of emotional distress claim, but affirm the grant of summary judgment in favor of Byrd with regard to all other claims. We

affirm the district court’s grant of summary judgment in favor

of Patricia Roberts on all claims. Without expressing any

views on the ultimate strength of Craig’s claims, we remand

to the district court for further proceedings consistent with

this opinion. Each party will bear its own costs. 

AFFIRMED in part, REVERSED in part, and

REMANDED. 

6Craig appears to have abandoned her civil rights claim under Arizona

Revised Statutes §§ 41-1461-1465, and her claim for retaliation in violation of Title VII. These claims are not properly before us, so we will not

address them. 

9534 CRAIG v. M&O AGENCIES, INC.