FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINCENT FRIED,

Plaintiff-Appellant,

v.

WYNN LAS VEGAS, LLC,

Defendant-Appellee.

No. 20-15710

D.C. No.

2:18-cv-00689-APG-BNW

OPINION

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted May 5, 2021

Seattle, Washington

Filed November 18, 2021

Before: Morgan Christen and Mark J. Bennett, Circuit

Judges, and Roslyn O. Silver,* District Judge.

Opinion by Judge Christen

*The Honorable Roslyn O. Silver, Senior United States District Judge

for the District of Arizona, sitting by designation.
2 FRIED V. WYNN LAW VEGAS

SUMMARY**

Employment Discrimination

The panel reversed the district court’s summary judgment

against Vincent Fried on his claim for hostile work

environment in violation of Title VII, and remanded.

The panel concluded that a reasonable factfinder could

decide that Fried’s employer Wynn Las Vegas created a

hostile work environment at the salon where he worked as a

manicurist. To establish that he was subjected to a hostile

work environment, Fried was required to prove that: (1) he

was subjected to verbal or physical conduct of a sexual

nature; (2) the conduct was unwelcome; and (3) the conduct

was sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment. 

The panel held that it is well established that an employer can

create a hostile work environment by failing to take

immediate and corrective action in response to a coworker’s

or third party’s sexual harassment or racial discrimination

that the employer knew or should have known about. To

determine whether an environment is sufficiently hostile or

abusive to violate Title VII, a court must consider all the

circumstances, including 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.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FRIED V. WYNN LAW VEGAS 3

The panel agreed with the district court that comments

made by a manager and coworkers on two occasions were

insufficiently severe or pervasive to support a hostile work

environment claim. The panel held, however, that an

employer’s response to a third party’s unwelcome sexual

advances toward an employee can independently create a

hostile work environment. Here, the manager’s response to

Fried’s report that a customer had sexually propositioned him

should have prevented entry of summary judgment in Wynn’s

favor because the manager not only failed to take immediate

corrective action, but also directed Fried to return to the

customer and complete his pedicure. The panel also reversed

the district court’s ruling that coworkers’ breakroom

comments on the customer’s sexual proposition were

insufficiently severe or pervasive to support Fried’s claim. 

The panel instructed the district court on remand to

reconsider the cumulative effect of the coworkers’ comments.

COUNSEL

Michael P. Balaban (argued), Law Offices of Michael P.

Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.

Jen J. Sarafina (argued) and Dare E. Heisterman, Kamer

Zucker Abbott, Las Vegas, Nevada, for Defendant-Appellee.
4 FRIED V. WYNN LAW VEGAS

OPINION

CHRISTEN, Circuit Judge:

Vincent Fried appeals the district court’s order granting

summary judgment to Wynn Las Vegas (Wynn) on Fried’s

claim for hostile work environment in violation of Title VII

of the Civil Rights Act of 1964.1 Because a reasonable

factfinder could decide that Fried’s employer created a hostile

work environment, we reverse the district court’s judgment

and remand.

I

Fried worked as a manicurist at a salon in the Wynn Hotel

in Las Vegas, Nevada, from April 2005 to July 2017. His

performance reviews show that he met or exceeded

expectations, and Fried received eight certificates of merit

based on positive comments from guests, extraordinary

performance, or otherwise “going above and beyond.”

Fried alleges that he complained to management about

female manicurists receiving most of the appointments, and

that other male manicurists complained about this as well.2

Though appointments were generally allocated tomanicurists

based on a system Fried designed to balance the assignments,

1 Fried also appeals the district court’s order granting summary

judgment to Wynn on his claims for sex discrimination and retaliation

pursuant to Title VII. We affirm the dismissal of those claims in a

concurrently filed memorandum disposition.

2 At the summary judgment stage, we view the facts in the light most

favorable to Fried. See Ellison v. Brady, 924 F.2d 872, 873 (9th Cir.

1991).
FRIED V. WYNN LAW VEGAS 5

Fried testified that his female coworkers received more

appointments, due in part to customers specifically requesting

female manicurists.

On one occasion in March 2017, Fried became frustrated

and threw a pencil at a computer because customers were

requesting female manicurists more often than male

manicurists. Fried alleges that a manager at the salon, Sarah

Barajas, disciplined him for throwing the pencil and

commented that he might want to do something else for work. 

According to Fried, Barajas remarked that Fried was working

in a “female job related environment” and suggested that he

look for other employment in the culinary field. On another

occasion a female coworker told Fried and another male

manicurist that if they wanted to get more clients, they should

wear wigs to look like women. Fried alleges that his

coworkers made similar comments to himon other occasions,

and his male coworkers agreed that they were subjected to

similar remarks.

In June 2017, a male customer came into the salon for a

pedicure and Fried was assigned to provide the service. The

customer asked Fried to give him a massage in the customer’s

hotel room and said he had massage oil. When Fried

responded, “we don’t do that kind of service,” the customer

made an explicit sexual proposition, asking if Fried wanted to

have sex and “rub[] [the customer’s] penis.” The customer

told Fried “it [is] wonderful to have sex with another man.”

Fried immediately went to the salon’s front desk, reported

the customer’s conduct to Barajas, and stated that he no

longer felt comfortable interacting with the customer. 

According to Fried, Barajas directed him to “just go [finish

the pedicure] and get it over with.” Fried complied, but
6 FRIED V. WYNN LAW VEGAS

testified that he felt “absolutely horrible” and

“uncomfortable” during the twenty or so minutes it took to

finish the customer’s pedicure. In total, the customer made

five or six inappropriate sexual references to Fried during the

thirty-five- to forty-five-minute pedicure, and grabbed or held

Fried’s hand or arm for about a minute when Fried escorted

the customer out of the salon after completing the pedicure. 

The customer did not otherwise touch Fried.

Fried confronted Barajas after the customer left and told

her that they needed to discuss what had happened. Barajas

responded that she was busy dealing with emails but would

talk to him “when she got a chance.” When Fried followed

up later that day, Barajas again told him that she had a lot of

emails to review and asked to discuss the incident another

time. Fried told Barajas that he would report the incident to

the hotel’s human resources department, but he did not do so,

and there is no evidence that Fried and Barajas ever discussed

the incident again.

About one week later, Fried was in the salon’s breakroom

and asked his coworkers whether Barajas was on duty

because he still wanted to speak with her about the customer

who had propositioned him. A female coworker told Fried he

should not be upset about the incident and should instead take

it as a compliment. When Fried responded that he was not

happy with that remark, another female coworker allegedly

said, “shut up Vincent, you know you want sex from [the

customer], you keep mentioning it.”

On April 16, 2018, Fried filed suit against Wynn in the

United States District Court for the District of Nevada. His

complaint included claims pursuant to Title VII, 42 U.S.C.

§ 2000e et seq., for sex discrimination, retaliation, and hostile
FRIED V. WYNN LAW VEGAS 7

work environment. Wynnmoved for summary judgment, and

the court dismissed Fried’s claims and entered final judgment

in Wynn’s favor. Fried timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the

dismissal of Fried’s sex-discrimination and retaliation claims

in a concurrently filed memorandum disposition, but we

reverse the dismissal of Fried’s hostile work environment

claim.

II

We review de novo the district court’s order granting

summary judgment. Branch Banking & Tr. Co. v. D.M.S.I.,

LLC, 871 F.3d 751, 759 (9th Cir. 2017). We view the

evidence in the light most favorable to Fried and determine

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant

substantive law. See Olsen v. Idaho State Bd. of Med.,

363 F.3d 916, 922 (9th Cir. 2004). Whether Fried was

subjected to a hostile work environment and Wynn is liable

for creating a hostile work environment are mixed questions

of law and fact that we review de novo. See Little v.

Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir.

2002).

III

Fried argues four incidents at the salon created a hostile

work environment in violation of Title VII: (1) Barajas’s

suggestion that he seek employment in a field that is not a

predominantly female environment; (2) his coworkers’

suggestions that he should wear a wig; (3) Barajas’s response

to his report that a customer had sexually propositioned him;

and (4) Fried’s coworkers’ comments that he should take the
8 FRIED V. WYNN LAW VEGAS

customer’s proposition as a compliment and that Fried

actually wanted to have sex with the customer.

Title VII of the Civil Rights Act of 1964 prohibits sex

discrimination, including sexual harassment, in employment. 

42 U.S.C. § 2000e-2(a)(1); Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 65–66 (1986). To succeed on his Title VII claim

for hostile work environment, Fried was required to establish

that: (1) he was subjected to a hostile work environment; and

(2) Wynn was liable for the harassment that caused the hostile

environment to exist. See Freitag v. Ayers, 468 F.3d 528, 539

(9th Cir. 2006). Because the district court granted summary

judgment to Wynn based solely on the first prong of the

claim, we limit our review to whether Fried was subjected to

a hostile work environment. To establish he was subjected to

a hostile work environment, Fried was required to prove that:

(1) he was subjected to verbal or physical conduct of a sexual

nature; (2) the conduct was unwelcome; and (3) the conduct

was sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment. See

Little, 301 F.3d at 966.

The Supreme Court has held an employer is liable

pursuant to Title VII only for “its own” acts, Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998); see also

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998),

but it is well established that an employer can create a hostile

work environment by failing to take immediate and corrective

action in response to a coworker’s or third party’s sexual

harassment or racial discrimination the employer knew or

should have known about. All federal circuits are in accord

on this point. See, e.g., Howard v. Cook Cnty. Sheriff’s Off.,

989 F.3d 587, 607 (7th Cir. 2021); Roy v. Correct Care Sols.,

LLC, 914 F.3d 52, 57 (1st Cir. 2019); Vasquez v. Empress
FRIED V. WYNN LAW VEGAS 9

Ambulance Serv., Inc., 835 F.3d 267, 273–74 (2d Cir. 2016);

Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir.

2014); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651

(5th Cir. 2012); Malone v. Ameren UE, 646 F.3d 512, 517

(8th Cir. 2011); Beckford v. Dep’t of Corr., 605 F.3d 951,

957–58 (11th Cir. 2010); Huston v. Procter & Gamble Paper

Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Tademy v.

Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008);

Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir.

1999) (per curiam); Hafford v. Seidner, 183 F.3d 506, 513

(6th Cir. 1999); Folkerson v. Circus Circus Enters., Inc.,

107 F.3d 754, 756 (9th Cir. 1997); see also 29 C.F.R.

§ 1604.11(e) (providing that employers may be liable for

sexual harassment perpetrated by nonemployees “in the

workplace, where the employer . . . knows or should have

known of the conduct and fails to take immediate and

appropriate corrective action”).

To determine whether an environment is sufficiently

hostile or abusive to violate Tile VII, we consider “all the

circumstances, including 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.” Christian v. Umpqua Bank, 984 F.3d 801, 809

(9th Cir. 2020) (internal quotation marks omitted) (quoting

Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir.

2008)). “Not every insult or harassing comment will

constitute a hostile work environment.” Ray v. Henderson,

217 F.3d 1234, 1245 (9th Cir. 2000). The standard for

judging hostility is meant to “ensure that Title VII does not

become a ‘general civility code.’” Faragher, 524 U.S. at 788

(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 80 (1998)).
10 FRIED V. WYNN LAW VEGAS

The Supreme Court has explained that, properly applied,

this standard “will filter out complaints attacking the ordinary

tribulations of the workplace, such as the sporadic use of

abusive language, gender-related jokes, and occasional

teasing.” Id. (internal quotation marks omitted) (quoting B.

LINDEMANN & D. KADUE, SEXUAL HARASSMENT IN

EMPLOYMENTLAW175 (1992)). A hostile work environment

“must be both objectively and subjectively offensive, one that

a reasonable person would find hostile or abusive, and one

that the victim in fact did perceive to be so.” Id. at 787.

A single incident of harassment “can support a claim of

hostile work environment because the frequency of the

discriminatory conduct is only one factor in the analysis,”

Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th

Cir. 2002) (internal quotation marks omitted), but for a single

incident to suffice, it “must be extremely severe,” Brooks v.

City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000); see

also Little, 301 F.3d at 967 (collecting cases). When severity

is questionable, “it is more appropriate to leave the

assessment to the fact-finder than for the court to decide the

case on summary judgment.” Davis, 520 F.3d at 1096.

A

Fried first argues that Barajas created a hostile work

environment by commenting that he should consider finding

a job in which the clientele is not mostly female.3 Fried

3 We serially discuss whether the incidents Fried alleges created a

hostile work environment because: (1) Fried presents the four incidents in

this manner in his briefing; and (2) the incidents are different in kind or

severity. However, the cumulative effect of the four incidents determines

whether a hostile work environment existed. See Christian, 984 F.3d
FRIED V. WYNN LAW VEGAS 11

alleges that Barajas told him on one occasion he was “in a

female job related environment,” suggested he “look for other

employment in cooking in the future,” and said he “might

want to do something with cooking for work.” Fried also

argues his coworkers created a hostile work environment by

remarking that he and another male manicurist should wear

wigs if they wanted to get more clients or make more money

at the salon. Fried identified only two specific occasions,

about a month apart, on which his coworkers made these

comments. The district court ruled these statements were

insufficiently severe or pervasive to support a hostile work

environment claim. We agree with the district court.

The required severity for “harassing conduct varies

inversely with the pervasiveness or frequency of the

conduct.” Id. (quoting Ellison v. Brady, 924 F.2d 872, 878

(9th Cir. 1991)). Because Fried testified that Barajas made

her comments on one occasion and his coworkers suggested

on two occasions that he should wear a wig to look like a

woman, the comments would have to be proportionately more

severe to make up for their relative infrequency. See id. The

comments here fall far short of that mark. Indeed, we have

deemed much harsher comments and actions insufficient to

create a hostile work environment.

In Kortan v. California Youth Authority, 217 F.3d 1104

(9th Cir. 2000), a female employee brought a hostile work

environment claim based on her supervisor’s misogynistic

comments. Id. at 1106–08. The supervisor referred to an

employee as a “regina” and said that the employee “laughs

like a hyena.” Id. at 1107. The same supervisor referred to

another employee as a “madonna,” a “regina,” and a

at 809–10.
12 FRIED V. WYNN LAW VEGAS

“castrating bitch,” and to women generally as “bitches” and

“histrionics.” Id. We held that these crass and denigrating

comments were not severe enough to create a hostile work

environment, in part because the comments were

concentrated on one occasion. See id. at 1110–11.

Almost three years later, in Manatt v. Bank of America,

NA, 339 F.3d 792 (9th Cir. 2003), we considered a female

Chinese-American employee’s hostile work environment

claim based on coworkers’ patently offensive racial

comments and acts. Id. at 794–95. On one occasion, Manatt

overheard her coworkers laughing and saying “China Man”

and saw them pulling “their eyes back with their fingers in an

attempt to imitate or mock the appearance of Asians.” Id.

at 795. On a different day, one of Manatt’s coworkers

ridiculed her for mispronouncing the word “Lima” and

referred to her as “China woman.” Id. Though

unquestionably offensive and insensitive, we held that these

gestures and comments did not create an actionable hostile

work environment. Id. at 798–99; see also, e.g., Vasquez v.

County of Los Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003)

(holding a coworker’s isolated remarks, six months apart, that

an employee had “a typical Hispanic macho attitude” and

“should consider transferring to the field because ‘Hispanics

do good in the field’” were not severe enough to create a

hostile work environment).

The objective severity of Barajas’s comments about

looking for a job outside of a female-oriented field pale in

comparison to the statements and conduct in Kortan, Manatt,

and Vasquez. Those cases involved either sexually or racially

motivated derogatory language; Barajas’s comments did not

directly pertain to Fried’s sex or race. The context in which

the comments were made is also important because Fried has
FRIED V. WYNN LAW VEGAS 13

a degree in culinary arts, and Fried’s coworkers testified that

it was well known his dream job was to own a food truck. 

Especially when viewed against that backdrop, Barajas’s

comments suggesting that Fried “might want to [consider

doing] something with cooking for work,” clearly do not

support a claim of hostile work environment. Fried’s

coworkers’ banter regarding wearing wigs is also insufficient. 

Even viewed cumulatively, this is the type of infrequent

joking or teasing we have held to be part of the ordinary

tribulations of the workplace. See EEOC v. Prospect Airport

Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010)

(acknowledging sporadic gender-related jokes or occasional

teasing do not support a hostile work environment claim).

B

The third episode is much more compelling. Fried alleges

that Barajas responded to his report that a male customer had

sexually propositioned him by directing him to return to the

customer and complete the pedicure service. Fried is clear

that he does not seek to hold Wynn vicariously liable for the

male customer’s conduct. Rather, Fried alleges that his

manager’s response, after learning about the male customer’s

conduct, independently created a hostile work environment. 

The district court ruled that this episode was insufficient to

support a hostile work environment claimbecause “Fried was

not touched physically, other than a brief touch on the arm,”

he was not alone with the customer, and he was able to

complete the customer’s pedicure.

Several circuit courts,including our own, have recognized

that an employer’s response to a third party’s unwelcome

sexual advances toward an employee can independently

create a hostile work environment. Thus, the district court
14 FRIED V. WYNN LAW VEGAS

erred when it focused on the customer’s conduct; Fried’s

claim is premised on Wynn’s response to the customer’s

harassment.

We explained in Brooks v. City of San Mateo, 229 F.3d

917 (9th Cir. 2000), that an employer’s prompt corrective

response can insulate an employer from liability for an

employee’s hostile work environment claim. Brooks reported

to her employer that a coworker “forced his hand underneath

her sweater” and fondled her breast. Id. at 921. The

employer put the coworker on administrative leave the next

day, began an investigation, and later initiated termination

proceedings that led to the coworker’s resignation. Id.

at 921–22. We made clear that while the coworker’s

egregious conduct was relevant, the proper focus for the

hostile work environment claim was the employer’s response

to the coworker’s conduct. Id. at 924. Because the employer

took corrective action right away, we held the employer in

Brooks was not liable for subjecting the employee to a hostile

work environment. See id. at 925–26.

In contrast to the employer in Brooks, the employer in

Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir.

2002), not only failed to intervene after learning of harassing

conduct, but also responded in ways that exacerbated the

hostile work environment. In the process of conducting

contract relocation work for Starbucks, Little learned that

Starbucks was dissatisfied with its primary relocation

provider, and she mentioned this to Windermere’s president. 

See id. at 964. The president allegedly said he would “do

whatever it t[ook] to get th[e] account,” and encouraged Little

to “do the best job she could.” Id. Little later accepted a

dinner invitation from a Starbucks representative to discuss

the account, but she began to feel ill after the meal and passed
FRIED V. WYNN LAW VEGAS 15

out. Id. When she awoke, she found herself being sexually

assaulted by the Starbucks representative. Id.

A management-level employee advised Little “not to tell

anyone in management” about the assault. Id. And the

person designated in Windermere’s harassment policy as a

“complaint-receiving manager” told Little to “try to put [the

assault] behind her” and to stop working on the Starbucks

account. Id. at 965. But Windermere’s president continued

to ask Little if she was making progress on the account. Id.

Little eventually told the president about the assault, and his

“immediate response was that he did not want to hear

anything about it.” Id. He told Little she would have to

speak to his lawyer, immediately cut her base pay from

$3,000 per month to $2,000 per month, and within a few days

terminated Little’s employment. Id. Little filed suit, alleging

that Windermere’s reaction to her report created a hostile

work environment, but the district court entered summary

judgment in favor of Windermere. Id. at 965–66.

On appeal, we held that a reasonable jury could agree

with Little because Windermere failed to take immediate and

effective remedial action, because Little was not relieved of

responsibility for the Starbucks account, and because Little

was warned she might suffer an adverse employment action

if she reported the abuse. Id. at 967. We concluded that

Windermere’s “actions reinforced rather than remediated” the

sexual assault and allowed the sexual assault’s effects to

permeate Little’s work environment and alter it irrevocably. 

Id.

The Tenth Circuit has recognized that an employer’s

response to a customer’s offensive conduct can create a

hostile work environment where the response subjects an
16 FRIED V. WYNN LAW VEGAS

employee to further abuse. In Lockard v. Pizza Hut, Inc.,

162 F.3d 1062 (10th Cir. 1998), Lockard, a waitress,

informed her manager that she did not like waiting on two

particular customers. Id. at 1067. When the customers

returned to the restaurant, the manager told Lockard to wait

on them anyway, and one of the customers took the

opportunity to tell Lockard that she smelled good and

grabbed her hair. Id. Lockard immediately reported that

conduct to her manager and again said she did not want to

wait on the pair. Id. The manager directed: “You wait on

them. You were hired to be a waitress. You waitress.” Id.

Lockard returned to the customers and one of them pulled her

hair, grabbed her breast, and put his mouth on her breast. Id.

A jury found that Lockard established a hostile work

environment, id. at 1068, and the Tenth Circuit affirmed the

district court’s denial of the employer’s motion for judgment

as a matter of law, id. at 1077. The Tenth Circuit reasoned

that the employer was liable for creating a hostile work

environment because the restaurant had notice of the

customers’ harassing conduct, yet ordered Lockard to

continue waiting on them. See id. at 1075 (emphasizing that

the manager “placed Ms. Lockard in an abusive and

potentially dangerous situation, although he clearly had both

the means and the authority to avoid doing so”). Rather than

taking immediate and effective corrective action like the

employer in Brooks, Lockard’s manager clearly conveyed

that Lockard was expected to tolerate the customers’ abuse. 

See id.

Other circuits have held employers liable on hostile work

environment claims, or have denied summary judgment to

employers on such claims, where the employer’s response to

known harassment has subjected the employee to further

harassment. See, e.g., Rodriguez-Hernandez v. Miranda-
FRIED V. WYNN LAW VEGAS 17

Velez, 132 F.3d 848, 854–55 (1st Cir. 1998) (holding a

reasonable jury could find a hostile work environment was

created when a supervisor refused to intervene after a firm

client made sexual advances toward an employee, and instead

“conditioned her future with the company on her responding

to the unwanted sexual demands of a customer”); Crist v.

Focus Homes, Inc., 122 F.3d 1107, 1111–12 (8th Cir. 1997)

(finding dispute of fact as to a hostile work environment

premised on sexual harassment where a care facility asked a

care provider, who had reported being sexually assaulted by

a resident, to subject herself to additional offensive touching

so management could observe the conduct); cf. Folkerson v.

Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997)

(explaining that “an employer may be held liable for sexual

harassment on the part of a private individual . . . where the

employer either ratifies or acquiesces in the harassment by

not taking immediate and/or corrective action when it knew

or should have known of the conduct”).

Consistent with this case law, Barajas’s response to

Fried’s report that a customer had sexually propositioned him

should have prevented entry of summary judgment in Wynn’s

favor. Barajas not only failed to take immediate corrective

action, she directed Fried to return to the customer and

complete his pedicure. Her response to Fried’s report (“just

go do it and get it over with”), was akin to the manager’s

response in Lockard, 162 F.3d at 1067 (“You were hired to be

a waitress. You waitress.”). Barajas’s direction discounted

and effectively condoned the customer’s sexual harassment

and, as was the case in Lockard, went a step further by

conveying that Fried was expected to tolerate the customer’s

harassment as part of his job.
18 FRIED V. WYNN LAW VEGAS

Wynn argues that the facts of this case do not rise to the

level of creating a hostile work environment, but because the

focus is on Barajas’s reaction, we have no trouble concluding

that reasonable jurists could disagree with Wynn on this

point. Fried’s admissible evidence clearly satisfied the

subjective component of the hostile work environment claim

because Fried described feeling “absolutely horrible” and

“uncomfortable” while performing the pedicure. As for the

objective component, Fried testified that it took

approximately twenty minutes to complete the pedicure after

the customer explicitly sexually propositioned him and it is

clear he was subjected to extended personal contact with the

customer during the time it took to complete the service. It

also appears the customer continued to harass Fried after he

returned to complete the pedicure.4 Reasonable jurors could

decide that Fried’s manager condoned the customer’s conduct

and conveyed that sexual harassment would be tolerated in

the salon because she took no action to stop it—such as

requiring the customer to leave the premises immediately. To

the contrary, Barajas directed Fried to re-subject himself to

the harasser for an extended period of time. See Christian v.

Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020) (holding we

consider “all the circumstances,” including whether the

discriminatory conduct was “physically threatening or

humiliating” (quoting Davis, 520 F.3d at 1095)). Under our

precedent, the district court erred by ruling on summary

judgment that Barajas’s response to Fried’s report of the

customer’s harassment was insufficient as a matter of law to

create a hostile work environment.

4 Fried testified that he reported the customer’s proposition

“immediately”; that Barajas directed himto complete the service; and that,

in all, the customer made approximately five or six sexually inappropriate

statements during the pedicure.
FRIED V. WYNN LAW VEGAS 19

C

Finally, Fried argues that his coworkers’ insensitive

breakroom commentary that he should take the customer’s

sexual proposition as a compliment and that Fried had

welcomed the customer’s sexual advance, contributed to the

salon’s hostile work environment. The district court ruled

these comments were insufficiently severe or pervasive to

support Fried’s claim. But in light of our ruling that

Barajas’s response to Fried’s report of the customer’s sexual

proposition could be sufficient on its own to create a hostile

work environment, we reverse the district court’s ruling on

these related breakroom remarks. See Christian, 984 F.3d

at 809–10 (explaining the cumulative effect of conduct must

be considered).

IV

Fried failed to establish that his manager’s suggestion that

he work in another industry and his coworker’s suggestion

that he should wear a wig created a hostile work environment. 

But a reasonable factfinder could conclude that the manager’s

response to Fried’s report of a customer’s overt sexual

proposition subjected Fried to a hostile work environment. 

We therefore reverse the district court’s order granting

summary judgment in favor of Wynn on Fried’s hostile work

environment claim. On remand, the district court shall

reconsider the cumulative effect of the related comments by

Fried’s coworkers that he should take the customer’s sexual

proposition as a compliment or that he welcomed it.

REVERSED and REMANDED.