in the united states court of appeals stephanie dixon ... · 23/10/2019 · stephanie dixon,...

No. 18-16090

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

STEPHANIE DIXON,Plaintiff-Appellant,

v.

STATE OF HAWAII - DEPARTMENT OF EDUCATION,Defendant-Appellee.

Appeal from the United States District Courtfor the District of Hawai`i

No. CV 16-00110 DKW-KJMHon. Derrick K. Watson

APPELLANT’S OPENING BRIEF

Ryan K. Harimoto1001 Bishop Street, Suite 1515Honolulu, Hawaii 96813Telephone: (808) 528-3113Email: [email protected]

Attorney for Plaintiff-AppellantSTEPHANIE DIXON

Case: 18-16090, 10/22/2018, ID: 11055056, DktEntry: 7, of 39

TABLE OF CONTENTS

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUES PRESENTED FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Factual Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. APPELLANT’S ALLEGATIONS WERE TIMELY FILED WITHTHE EEOC... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Appellee Has Admitted That Appellant Timely Filed HerCharge Of Discrimination With The EEOC. . . . . . . . . . . . . . 18

III. APPELLANT HAS PROPERLY STATED CLAIMS OFDISCRIMINATION AND RETALIATION. . . . . . . . . . . . . . . . . . . 19

A. Appellant’s Second Amended Complaint Far Surpasses TheNotice Pleading Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Appellant Has Sufficiently Plead A Hostile EnvironmentClaim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

i


C. Appellant Has Sufficiently Plead A Disparate TreatmentClaim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

D. Appellant Has Sufficiently Plead A Claim of Retaliation. . . . 28

IV. CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

STATEMENT OF RELATED CASES

FORM 8 CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ii


TABLE OF AUTHORITIES

Cases

Aman v. Cort Furniture Rental Corp.,85 F.3d 1074 (3 Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23rd

Brooks v. City of San Mateo,229 F.3d 917 (9 Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30th

Davis v. Team Elec. Co.,520 F.3d 1080 (9 Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25th

Flores v. City of Westminster,873 F.3d 739 (9 Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29th

Harris v. Forklift Systems, Inc.,510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 29

Harris v. Int’l Paper Co.,765 F. Supp. 1509 (D. Me. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Hishon v. King & Spalding,467 U.S. 69 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

MacDonald v. Grace Church Seattle,457 F.3d 1079, 1081 (9 Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 17th

McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 26, 27, 28

McGinest v. GTE Serv. Corp.,360 F.3d 1103 (9 Cir. 2004). . . . . . . . . . . . . . . . . . . 18, 20, 22, 23, 26th

McGlinchy v. Shell Chemical Co.,845 F.2d 802 (9 Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17th

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Metoyer v. Chassman,504 F.3d 919 (9 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27th

Nat’l R.R. Passenger v. Morgan,536 U.S. 101 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16, 20, 21, 23

Porter v. Cal. Dep’t. of Corrections,419 F.3d 885 (9 Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21th

Reynaga v. Roseburg Forest Products,847 F.3d 678 (9 Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . 17, 26, 27, 30th

Schnidrig v. Columbia Mach., Inc.,80 F.3d 1406 (9 Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27th

Scott v. Dist. Hosp. Partners, L.P.,60 F. Supp. 3d 156 (D.D.C. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Swierkiewicz v. Sorema N.A.,534 U.S. 506, 508 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Villiarimo v. Aloha Island Air, Inc.,281 F.3d 1054 (9 Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28th

Statutes

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. § 2000e, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rules

FRAP 3(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

FRAP 4(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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FRCP 8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 19

FRCP 12(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

v


INTRODUCTION

This is a case of racial discrimination and retaliation. Plaintiff-Appellant

STEPHANIE DIXON (“Appellant”), an African American female, has been

employed by Defendant-Appellee STATE OF HAWAII - DEPARTMENT OF

EDUCATION from August 1999 to the present and has been assigned to work as

a School Counselor at Iroquois Point Elementary School (“IPES”) since

approximately July 2006.

From the commencement of Appellant’s assignment to work as a School

Counselor at IPES, she was the only African American female school counselor.

Beginning in 2008, Appellee subjected Appellant to disparate and differential

treatment as compared to the similarly situated, non-African American school

counselor, and Appellant was forced to work in a racially hostile environment.

For example, both the Principal and Vice-Principal made racially derogatory

comments to Appellant about her being African American. Also, Appellant was

forced to share an office with the only other African American employee at IPES,

even though they held different positions and the performance of their respective

duties was substantially hindered by the shared office arrangement. Within

months after the other African American employee resigned, Appellee assigned

Appellant to use a converted storage closet as her office, which closet was

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approximately one-fifth the size of the office of the White/Caucasian school

counselor who had less seniority than Appellant. Also, Appellee discriminated

against Appellant as to other matters which affected the terms and conditions of

her employment, such as rejection of her requests for training, assignment of

additional duties, and sick leave coverage, none of which the White/Caucasian

school counselor had to endure.

In August 2012, Appellant was verbally and physically assaulted by a parent

of a student to whom Appellant had been assigned, and Appellant later filed a

police report regarding the incident. Though IPES’s Principal and Vice-Principal

had been previously notified of the parent’s aggressive behavior and Appellant

subsequently reported the assault to IPES’ Principal and requested that the

White/Caucasian school counselor be assigned to work with the student to protect

Appellant from further harm, no action was taken. On or about October 12, 2012,

Appellant went on leave due to the harassment and discrimination to which

Appellee had subjected her, and Appellee’s own physician deemed Appellant’s

stress injury to be compensable as work-related pursuant to Hawaii’s workers’

compensation law.

Appellee does not dispute that Appellant’s hostile environment claim is

timely. Therefore, the sole issue as to that claim is whether Appellant has

2


sufficiently stated a hostile environment claim pursuant to Rule 8(a), Federal

Rules of Civil Procedure. In her Second Amended Complaint filed on January 5,

2018 (ER 000053-000067; USDC Dk. no. 56), Appellant clearly establishes that

the discriminatory behavior of the Appellee’s administrators did not simply consist

of discrete acts. Rather, they are acts which occurred “over a series of days or

perhaps years and, in direct contrast to discrete acts, a single act of harassment

may not be actionable on its own.” Nat’l R.R. Passenger v. Morgan, 536 U.S. 101,

115 (2002). With regard to the remaining disparate treatment claim arising from

the assault against Appellant by a parent and Appellee’s acts and omissions before

and after the assault, Appellant has properly stated a prima facie case under the

McDonnell Douglas test. Finally, Appellant alleges that her opposition to the

racially hostile environment and racial discrimination gave rise to Appellee’s

retaliatory refusal to protect Appellant from harm before and after the assault.

As Appellant has properly stated claims for discrimination, including hostile

environment, and retaliation, the District Court’s Order Granting Appellee’s

Second Motion for Judgment on the Pleadings and related Judgment in a Civil

Case should be reversed.

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STATEMENT OF JURISDICTION

A. Subject matter jurisdiction of the United States District Court for the

District of Hawaii is based upon federal question (28 U.S.C. § 1331),

namely Title VII of the Civil Rights Act of 1964 (as amended) under 42

U.S.C. § 2000e, et seq.

B. The basis of the U.S. Court of Appeals for the Ninth Circuit’s jurisdiction is

28 U.S.C. § 1291, as this appeal is taken from the final decision of the

United States District Court for the District of Hawaii in its Order Granting

Defendant State of Hawaii, Department of Education’s Second Motion for

Judgment on the Pleadings, filed on May 14, 2018, along with the Judgment

in a Civil Case entered on May 14, 2018 which included an Order by the

Court that the Clerk of the Court close the case. The Order and Judgment

disposed of all claims.

C. The Judgment in a Civil Case was entered on May 14, 2018, and Appellant

timely filed her Notice of Appeal on June 12, 2018. The Notice of Appeal

was timely pursuant to Rules 3(a)(1) and 4(a)(1)(A), Federal Rules of

Appellate Procedure.

4




ISSUES PRESENTED FOR REVIEW

Whether Appellant properly stated claims for discrimination, including

hostile environment, and retaliation in her Second Amended Complaint and

whether the District Court erred in dismissing Appellant’s claims pursuant to Rule

12(c) of the Federal Rules of Civil Procedure in that regard.

STATEMENT OF THE CASE

A. Factual Summary

The following facts, along with the inferences to be drawn therefrom, must

be viewed in the light most favorable to Appellant:

Appellant STEPHANIE DIXON (“Appellant”), an African American

female, has been employed by Appellee STATE OF HAWAII, DEPARTMENT

OF EDUCATION (“Appellee”) from August 1999 to the present. Excerpts of

Record (“ER”) 000054; Second Amended Complaint (“SAC”) ¶ 5. In

approximately July 2006, Appellant was assigned to work for Appellee as a

School Counselor at Iroquois Point Elementary School (“IPES”). ER 000054;

SAC ¶ 6.

Heidi Armstrong (“Armstrong”), White/Caucasian female, was the Principal

at IPES until approximately July 2012. ER 000054; SAC ¶ 7. At all relevant

times, Robert Hurley (“Hurley”), White/Caucasian male, was the Vice-Principal at

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IPES. ER 000055; SAC ¶ 8. Ofelia Reed (“Reed”), Filipino American female,

replaced Armstrong as Principal in approximately August 2012. ER 000055; SAC

¶ 9. When Reed replaced Armstong as Principal of IPES, Armstrong was

promoted to Complex Area Superintendent (“CAS”) for the same Area in which

IPES is located. ER 000055; SAC ¶ 10. Therefore, Armstrong still had

supervisory authority over IPES. ER 000055; SAC ¶ 10.

From the commencement of Appellant’s assignment to work as a School

Counselor at IPES, Appellant was the only African American female School

Counselor. ER 000055; SAC ¶ 11. Beginning in 2008, Appellee subjected

Appellant to disparate and differential treatment as compared to similarly situated,

non-African American employees. ER 000055; SAC ¶ 12.

Appellant had more seniority than the only other IPES counselor, a

White/Caucasian male. ER 000055; SAC ¶ 12. Appellant’s duties were supposed

to be the same as the White/Caucasian male counselor, as they held the same

position and were similarly situated in that regard. ER 000055; SAC ¶ 12.

However, Appellant was not treated in the same way as her White/Caucasian

counterpart. ER 000055; SAC ¶ 12.

Appellant was subjected to racial harassment and discrimination which were

severe and pervasive and which amounted to the same type of employment

6


actions, occurred relatively frequently, or were perpetrated by the same managers.

ER 000055; SAC ¶ 13. For example, in January 2008, Armstrong forced

Appellant and the only African American School Based Behavioral Health

Specialist (“SBBH”) to share an office, despite the fact that the SBBH worked

with students with substantial emotional needs. ER 000055-56; SAC ¶ 14.

Appellant and the SBBH were the only two African American employees at IPES,

and they were inexplicably forced to share office space. ER 000056; SAC ¶ 14.

Armstrong’s directive that Appellant and the SBBH share office space was

not a discrete act of discrimination. ER 000056; SAC ¶ 15. Rather, the office

sharing arrangement interfered with Appellant’s ability to perform her job duties

on a daily basis and created a hostile and offensive working environment. ER

000056; SAC ¶ 15. As Appellant could not remain in the small, shared space

when the SBBH conducted private meetings, Appellant would have to leave the

office and find another location to work or conduct her own meetings. ER

000056; SAC ¶ 15. Moreover, Appellant was humiliated on a daily basis, as she

and the only other African American employee at IPES were forced to work out of

the same office for no legitimate reason. ER 000056; SAC ¶ 15. The

White/Caucasian male counselor did not have to share his office space. ER

000056; SAC ¶ 15. Though Appellant had expressed concerns to Armstrong

7


about the office arrangement with the SBBH, Armstrong forced the two African

American females to share the same office until the SBBH left IPES in

approximately June 2009. ER 000056; SAC ¶ 16.

Beginning in November 2009, within months after the African American

SBBH left IPES, Armstrong relocated Appellant’s office from a portable

classroom to a converted library storage closet. ER 000056; SAC ¶ 17.

Appellant’s converted library storage closet was approximately one-fifth the size

of the White/Caucasian male School Counselor’s office in the library conference

room. ER 000056; SAC ¶ 18.

The relocation of Appellant’s office to a converted storage closet interfered

with Appellant’s ability to perform her job duties on a daily basis and created a

hostile and offensive working environment. ER 000057; SAC ¶ 19. As

Appellant could not conduct meetings in the closet, Appellant would have to leave

the office and find another location to conduct her meetings. SAC ¶ 19.

Moreover, Appellant was humiliated on a daily basis, as she, the only African

American employee at IPES, was forced to sit in a converted closet space as her

office. ER 000057; SAC ¶ 19. The White/Caucasian male counselor was able to

conduct all meetings in his own office space without scrounging to find alternate

locations to perform his job duties. ER 000057; SAC ¶ 19.

8


Armstrong made numerous racial comments to Appellant during 2009-2010,

which made Appellant feel even more uncomfortable. ER 000057; SAC ¶ 20.

Armstrong commented about Appellant’s hair style in relation to her being African

American. ER 000057; SAC ¶ 20. Armstrong exclaimed, “You people change

your hair styles every week!” ER 000057; SAC ¶ 20.

From September 2009 to January 2012, Appellant was not allowed to attend

training with other faculty and staff in connection with IPES’ transition to

becoming an International Baccalaureate (“IB”) school, despite the fact that

Appellant was one of the school level leads in introducing and teaching the IB

Attitudes and Principles to the faculty, students, and families. ER 000057; SAC ¶

21. This was not a discrete act. Rather, Appellant’s inability to attend the same

training as the other faculty members interfered with Appellant’s ability to do her

job. ER 000057; SAC ¶ 21. In early 2009, Appellant was not selected to attend an

IB training in New Jersey. ER 000057; SAC ¶ 21. On September 11, 2009,

Appellant was informed that she was selected to attend an IB training. ER

000057; SAC ¶ 21. On September 14, 2009, Appellant was then informed that she

was not selected to attend the training, despite Appellant’s job duties related to IB

training and despite the fact that she had more seniority than other faculty

members who were allowed to attend the training. ER 000057-58; SAC ¶ 21. In

9


fact, some members were offered the opportunity to attend other training sessions

if they could not attend the one for which they were selected. ER 000058; SAC ¶

21. However, Appellant was not offered those opportunities either. ER 000058;

SAC ¶ 21. On or about March 10, 2011, Appellant wrote an extended message to

Armstrong about the numerous IB training sessions which Appellant was not

allowed to attend, the various ways in which the lack of IB training negatively

affected Appellant’s ability to do her job and had subjected Appellant to extreme

embarrassment when she was unable to respond to inquiries of an IB specialist due

to Appellant’s lack of IB training, and the fact that Appellant was being treated

disparately. ER 000058; SAC ¶ 21. Another school counselor, White/Caucasian

male, was allowed to attend the training in 2009 and 2012. ER 000058; SAC ¶ 23.

On or about October 13, 2010 during a faculty meeting, Appellant asked a

question of Armstrong about IB training in Los Angeles, and Armstrong glared at

Appellant and angrily told Appellant that they would discuss it later. ER 000058;

SAC ¶ 22.

Aside from performing her own duties as a School Counselor, Appellant

was also expected to provide assistance to others at IPES, whereas Appellee did

not impose the same additional expectations upon the White/Caucasian male

School Counselor. ER 000058; SAC ¶ 24. These assignments outside the scope

10


of Appellant’s job description occurred frequently until Appellant went on

workers’ compensation leave. ER 000058; SAC ¶ 24. In fact, in September 2010,

a teacher specifically told Appellant that Armstrong told the teachers in an email

to call Appellant to assist the teachers in their classrooms. ER 000058; SAC ¶ 24.

These additional duties forced Appellant to take additional time to complete her

own tasks, whereas the White/Caucasian male counselor’s duties were not

expanded in that way. ER 000058-59; SAC ¶ 24. This unfair, illegitimate

assignment of duties contributed to a hostile working environment. ER 000059;

SAC ¶ 24.

Appellant was required to have a substitute when she was absent. ER

000059; SAC ¶ 25. The White/Caucasian male School Counselor was not

required to have a substitute when he was absent, or, if he did need a substitute,

Hurley and/or Armstrong assisted him with finding one. ER 000059; SAC ¶ 26.

In October 2010, while Appellant was on approved leave and had found a

substitute, the substitute notified Appellant that Hurley had contacted the

substitute to fill in for the White/Caucasian counselor instead of Appellant. ER

000059; SAC ¶ 26. When the substitute insisted that she had already agreed to

substitute for Appellant, Hurley told the substitute that Appellant could find

another substitute. ER 000059; SAC ¶ 26. Appellant was required to get a

11


substitute on October 21, 22, 25, and 26, 2010. ER 000059; SAC ¶ 26. The

White/Caucasian male counselor was absent on October 28, 2010, April 5, 2012,

and April 12, 2012, and no substitute was required. ER 000059; SAC ¶ 26.

On many occasions, Appellant attempted to address her concerns about the

disparate treatment to which she had been subjected, but no changes were made.

ER 000059; SAC ¶ 27. In fact, Appellant’s concerns were often met with anger

and hostility by Armstrong and Hurley. ER 000059; SAC ¶ 27. On April 4, 2012,

Armstrong called Appellant over the PA system, and, when Appellant met

Armstrong in the school walkway, Armstrong yelled at Appellant in a hostile

manner in front of parents and faculty. ER 000059; SAC ¶ 28. Armstrong did not

treat the White/Caucasian male counselor in that way. ER 000059; SAC ¶ 28.

In August 2012, Appellant was verbally and physically assaulted by a parent

of a student to whom Appellant had been assigned, and Appellant later filed a

police report regarding the incident. ER 000059; SAC ¶ 29. Though Appellant

reported the assault to Principal Reed, no action was taken. ER 000060; SAC ¶

30. Appellant requested on more than one occasion that the White/Caucasian

male School Counselor be assigned to work with the student whose parent

assaulted Appellant. ER 000060; SAC ¶ 31. Such requests were made on

multiple occasions and documented on at least August 20, 2012 and October 10,

12


2012, to no avail. ER 000060; SAC ¶ 31. Reed refused to reassign the student

and expected Appellant to continue working with the student and the parent who

assaulted Appellant. ER 000060; SAC ¶ 32.

On or about October 10, 2012, Reed informed Appellant that the

White/Caucasian male School Counselor would not be assigned to work with the

student and parent who assaulted Appellant because the White/Caucasian male

School Counselor “does not do well with change.” ER 000060; SAC ¶ 33. When

Appellant attempted to discuss her fear of physical harm inflicted by the parent

with Hurley, he told Appellant, “What’s the matter, Steph, you sound scared?

What’s the matter? You sound nervous. You can take her (referring to fighting

the parent).” ER 000060; SAC ¶ 34.

Prior to the parent assault incident, Hurley had made racist remarks to

Appellant about being African American. ER 000060; SAC ¶ 34. Hurley asked

Appellant something to the effect of whether she played basketball or was a good

athlete in reference to her being African American. ER 000060; SAC ¶ 34.

On or about October 12, 2012, Appellant went on leave due to the

harassment and discrimination to which Appellee had subjected her. ER 000060;

SAC ¶ 35. Reed and Appellee’s refusal to assign the student and parent to the

White/Caucasian male counselor despite the fact that Appellant was in danger, is

13


most certainly an adverse action. ER 000060; SAC ¶ 35. Appellant has suffered

financial harm to the extent that she has lost part of her salary, been forced to use

her paid time off to make up for the difference between her salary and workers’

compensation benefits, and lost earning capacity. ER 000060-61; SAC ¶ 35.

Appellee’s own independent physician agreed that Appellant’s disability is work-

related. ER 000061; SAC ¶ 35. Another teacher had notified Reed and Hurley on

or about August 8, 2012, regarding the parent’s aggressive behavior, yet Appellant

was still required to work with this parent and the White/Caucasian male

counselor was not required to do so. ER 000061; SAC ¶ 36.

Appellant timely filed a charge of discrimination with the U.S. Equal

Employment Opportunity Commission, and she later received a Notice of Right to

Sue. ER 000061; SAC ¶ 37.

B. Procedural History

On March 11, 2016, Appellant filed a Complaint for Employment

Discrimination, and, on June 7, 2016, Appellant filed a First Amended Complaint.

ER 000074-81; 000082-84.

On August 1, 2017, Appellee filed a Motion for Judgment on the Pleadings.

ER 000088. On December 5, 2017, the District Court entered its Order Granting

Appellee’s Motion for Judgment on the Pleadings. ER 000091.

14


On January 5,2018, Appellant filed her Second Amended Complaint. ER

000053-67; 000091. The Second Amended Complaint includes claims for

discrimination based upon race and color, as well as retaliation. ER 000061-65.

On January 11, 2018, Appellee filed its Second Motion for Judgment on the

Pleadings. ER 000092. On May 14, 2018, the District Court entered its Order

Granting Appellee’s Second Motion for Judgment on the Pleadings. ER 000001-

41; 000093. The Judgment in a Civil Case was entered on May 14, 2018. ER

000045; 000094.

On June 12, 2018, Appellant timely filed her Notice of Appeal. ER 000042-

44; 000094.

SUMMARY OF THE ARGUMENT

The District Court erred in granting Appellee’s Second Motion for

Judgment on the Pleadings, thereby dismissing Appellant’s Second Amended

Complaint pursuant to Rule 12(c), Federal Rules of Civil Procedure.

Appellant properly stated claims of discrimination based upon race and

color, including hostile environment, and retaliation in her Second Amended

Complaint. At a minimum, the Second Amended Complaint meets the “notice

pleading” standard set forth by Rule 8(a), Federal Rules of Civil Procedure.

15


Moreover, the allegations in Appellant’s Second Amended Complaint, all

taken as true for purposes of a motion for judgment on the pleadings, meet the

standard for a hostile environment claim discussed by the United States Supreme

Court in Nat’l R.R. Passenger v. Morgan, 536 U.S. 101, 117 (2002), as well as this

Ninth Circuit Court of Appeals in Porter v. Cal. Dep’t. of Corrections, 419 F.3d

885, 894 (9 Cir. 2005). Appellant has also stated a prima facie case ofth

discrimination based on her race and color pursuant to the burden-shifting

standard for non-direct evidence based discrimination cases originally set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Finally, Appellant has stated a prima facie case of retaliation, as the Second

Amended Complaint alleges she engaged in protected activity in that she opposed

the discriminatory practices of Appellee on numerous occasions (ER 000058; SAC

¶ 21; ER 000059; SAC ¶ 27), that she suffered adverse employment actions (ER

000059-61; ¶¶ 27-36), and a causal link exists between the protected activity and

the adverse actions (ER 000059-61; ¶¶ 27-36). Clearly, Appellee would have

protected Appellant’s safety in the situation involving the assault by the parent had

Appellant not continually opposed Appellee’s discriminatory practices, and, due to

the District Court’s granting of Appellee’s Second Motion for Judgment on the

Pleadings, Appellee has not yet been required to proffer legitimate, non-retaliatory

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reasons for its adverse employment actions against Appellant, which actions

“would deter reasonable employees from complaining about Title VII violations.”

Reynaga v. Roseburg Forest Products, 847 F.3d 678, 693 (9 Cir. 2017) (quotingth

Brooks v. City of San Mateo, 229 F.3d 917, 928 (9 Cir. 2000).th

ARGUMENT

I. STANDARD OF REVIEW

A district court’s dismissal of a complaint by judgment on the pleadings is

reviewed de novo. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th

Cir. 2006). On appeal, this Court “accept[s] as true all allegations in [Appellant’s]

complaint and treat as false those allegations in the answer that contradict

[Appellant’s] allegations. Id.

“A court may dismiss a complaint only if it is clear that no relief could be

granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). See,

McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9 Cir. 1988) (“Not onlyth

must the court accept all material allegations in the complaint as true, but the

complaint must be construed, and all doubts resolved, in the light most favorable

to the plaintiff”) (citations omitted). Similarly, even when evaluating motions for

summary judgment in employment discrimination claims, the Ninth Circuit Court

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of Appeals has “emphasized the importance of zealously guarding an employee’s

right to a full trial, since discrimination claims are frequently difficult to prove

without a full airing of the evidence and an opportunity to evaluate the credibility

of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9 Cir.th

2004). See, Scott v. Dist. Hosp. Partners, L.P., 60 F. Supp. 3d 156, 165 (D.D.C.

2014) (holding that “tirades of abusive and degrading comments, ... though

lacking in detail, are just barely sufficient to satisfy [Plaintiff’s] burden at this

stage to plead facts that, taken as true, allow for a reasonable inference of a

violation of Title VII for hostile work environment.”).

II. APPELLANT’S ALLEGATIONS WERE TIMELY FILED WITHTHE EEOC.

A. Appellee Has Admitted That Appellant Timely Filed Her ChargeOf Discrimination With The EEOC.

Appellant alleged in her First Amended Complaint (“FAC”), filed on June

7, 2016, that she “timely filed a charge of discrimination with the U.S. Equal

Employment Opportunity Commission, and she later received a Notice of Right to

Sue.” ER 000078; FAC ¶ 28. In its Answer to the FAC, filed herein on June 29,

2016 (USDC Dk. no. 13, page 2, ¶ 1), Appellee admits to the allegations in FAC ¶

28. In her Second Amended Complaint (“SAC”), Plaintiff made the exact same

allegation regarding the timeliness of her charge of discrimination. ER 000061;

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SAC ¶ 37. This time, in its Answer to the SAC, filed herein on January 11, 2018

(Dk. no. 61, page 2, ¶ 2), Appellee denies the allegation based on lack of

knowledge of sufficient information. If Appellee argues that Appellant’s charge

of discrimination was not timely filed with the EEOC, that argument should be

stricken and Appellee should be estopped from further argument on timeliness, at

the very least for purposes of a review of a dismissal on a motion for judgment on

the pleadings.

III. APPELLANT HAS PROPERLY STATED CLAIMS OFDISCRIMINATION AND RETALIATION.

A. Appellant’s Second Amended Complaint Far Surpasses TheNotice Pleading Standard.

FRCP Rule 8(a) only requires “a short, plain statement of the claim showing

that the pleader is entitled to relief.” The U.S. Supreme Court has held that a

Plaintiff need not even allege specific facts establishing a prima facie case of

discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Instead, a complaint “must contain only ‘a short, plain statement of the claim

showing that the pleader is entitled to relief.’” Swierkiewicz v. Sorema N.A., 534

U.S. 506, 508 (2002). Appellant’s SAC certainly meets the notice pleading

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standard in that it includes more than just the basis allegations which support

claims for discrimination and retaliation.

B. Appellant Has Sufficiently Plead A Hostile Environment Claim.

Title VII of the Civil Rights Act of 1964's prohibition of race discrimination

“encompasses the creation of a hostile work environment, which violates Title

VII’s guarantee of the right to work in an environment free from discriminatory

intimidation, ridicule, and insult.” McGinest, 360 F.3d at 1112 (citations and

internal quotation marks omitted).

In Nat’l R.R. Passenger v. Morgan, 536 U.S. 101, 117 (2002), the U.S.

Supreme Court held that:

[a] hostile work environment claim is composed of a series ofseparate acts that collectively constitute one ‘unlawful employmentpractice.’ 42 U.S.C. § 2000e-5(e)(1). The timely filing provision onlyrequires that a Title VII plaintiff file a charge within a certain numberof days after the unlawful practice happened. It does not matter, forpurposes of the statute, that some of the component acts of the hostilework environment fall outside the statutory time period. Providedthat an act contributing to the claim occurs within the filing period,the entire time period of the hostile environment may be consideredby a court for the purposes of determining liability.”

Here, Appellee has acknowledged that at least one act of alleged discrimination

occurred within the 300-day limitations period.

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“In determining whether an actionable hostile work environment claim

exists, we look to ‘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.’” Morgan, 536 U.S. at 116 (citing, Harris

v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (emphasis added). “Morgan does

not call for the most egregious of the harassing events to occur within the 300-day

period, nor does it demand that the harassing conduct continue to escalate over

time in order for a hostile environment claim to be actionable.” Porter, 419 F.3d at

894.

The U.S. Supreme Court has noted that “[a] discriminatorily abusive

environment, even one that does not seriously affect employees’ psychological

well-being, can and often will detract from employees’ job performance,

discourage employees from remaining on the job, or keep them from advancing in

their careers.” Harris, 510 U.S. at 22. The Ninth Circuit Court of Appeals has1

added that “[i]t is enough ‘if such hostile conduct pollutes the victim’s workplace,

Here, Appellant’s psychological well-being has been affected, as she has a1

compensable workers’ compensation stress claim, and even the Appellee’s ownindependent physician determined that Plaintiff’s condition was work-related. ER000060-61; SAC ¶ 35.

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making it more difficult for her to do her job, to take pride in her work, and to

desire to stay in her position.’” McGinest, 360 F.3d at 1113 (citing Steiner v.

Showboat Operating Co., 25 F.3d 1459, 1463 (9 Cir. 1994)).th

More specifically, the Ninth Circuit Court of Appeals has held that

“allegations of a racially hostile work environment must be assessed from the

perspective of a reasonable person belonging to the racial or ethnic group of the

plaintiff.” McGinest, 360 F.3d at 1115. Furthermore, “[t]he omnipresence of

race-based attitudes and experiences in the lives of black Americans [may cause]

even nonviolent events to be interpreted as degrading, threatening, and offensive.”

McGinest, 360 F.3d at 1116 (quoting Harris v. Int’l Paper Co., 765 F. Supp. 1509,

1516 (D. Me. 1991)).

Therefore, Appellant’s hostile environment claim must be viewed from the

perspective of a reasonable African American, and the experiences of

AfricanAmericans must be taken into account. When Armstrong criticized

Appellant’s hairstyle and when Hurley, in the context of discussing Appellant’s

color, asked Appellant if she was a good athlete and whether she played

basketball, those racially motivated remarks must be viewed from the perspective

of a reasonable person of Appellant’s race or ethnic group. The Third Circuit

Court of Appeals held, and the Ninth Circuit Court of Appeals agreed, that use of

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“code words” can violate Title VII, as “[a] reasonable jury could conclude that the

intent to discriminate is implicit in these comments...A reasonable jury could find

that the statements like the ones allegedly made in this case send a clear message

and carry the distinct tone of racial motivations and implications.” McGinest, 360

F.3d at 1117 (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083

(3 Cir. 1996).rd

When viewing all the circumstances in this case, there are a series of

separate acts, as discussed by the Morgan Court, which together constitute one

unlawful employment practice. The SAC addressed the District Court’s prior

concerns that the alleged conduct was not severe or pervasive in that there was an

absence of severity, the lack of physically threatening or humiliating conduct, and

a lack of facts demonstrating that the Appellee’s official unreasonably interfered

with Appellant’s work performance. Appellee’s discriminatory and retaliatory

conduct certainly resulted in placing Appellant in physical danger with respect to

the parent assault incident. ER 000059-61; SAC ¶¶ 29-36. First, another teacher

had notified Reed and Hurley on or about August 8, 2012, regarding the parent’s

aggressive behavior, yet Appellant was still required to work with this parent,

thereby resulting in the assault on Appellant. ER 000061; SAC ¶ 36. Despite the

prior warning, the White/Caucasian male counselor was not required to work with

23





the parent. ER 000061; SAC ¶ 36. Instead of addressing the situation and

keeping the parent away from Appellant after the other teacher’s warning, much

less the assault on Appellant, Appellee not only required Appellant to continue

working with the student, Hurley verbally abused Appellant by mocking her fear

and encouraging her to fight the parent. ER 000060; SAC ¶ 34.

Appellant was also humiliated on a daily basis by Appellee’s actions. The

only two African American employees in the entire school were forced to share

an office without any legitimate reason. ER 000055-56; SAC ¶¶ 14-16. Appellant

was reasonably humiliated by this action. Moreover, as noted in the SAC, the

office sharing arrangement did unreasonably interfere with Appellant’s work

performance in that Appellant could not remain in the small, shared space when

the SBBH conducted private meetings, and she would have to leave the office and

find another location to work or conduct her own meetings. ER 000056; SAC ¶

15. After the SBBH left IPES, Appellant was humiliated further by being placed

in a converted storage closet as her office. ER 000056-57; SAC ¶¶ 17-19. As

Appellant could not conduct meetings in the closet, she would have to leave the

office and find another location to conduct her meetings. ER 000057; SAC ¶ 19.

Moreover, Appellant was humiliated on a daily basis, as she, the only remaining

African American employee at IPES, was forced to sit in a converted closet space

24


as her office. ER 000057; SAC ¶ 19. The White/Caucasian male counselor was

able to conduct all meetings in his own office space without scrounging to find

alternate locations to perform his job duties. ER 000057; SAC ¶ 19.

The repeated harassment of Appellant included the requirement that

Appellant perform additional duties outside the scope of her job, duties which the

White/Caucasian male counselor was never assigned. ER 000058-59; SAC ¶ 24.

Contrary to the District Court’s assertion, this had nothing to do with whether

Appellant was a “team player.” Rather, it was the administrators’ way of making

Appellant miserable and interfering with Appellant’s ability to do her job. ER

000058-59; SAC ¶ 24. Indeed, as Appellee acknowledged in its second motion for

judgment on the pleadings, the Ninth Circuit Court has held that the assignment of

“more, or more burdensome, work responsibilities is an adverse employment

action,” and, therefore, one can reasonably infer that such conduct would

constitute an unreasonable interference with Plaintiff’s work performance. Davis

v. Team Elec. Co., 520 F.3d 1080, 1089 (9 Cir. 2008). Appellant was alsoth

harassed in that she was required to obtain a substitute counselor, whereas the

administration would either not require a substitute for the White/Caucasian

counselor, or they would assist him with finding one. ER 000059; SAC ¶¶ 25-26.

As stated in the SAC, Hurley went so far as to interfere with Appellant’s substitute

25



in order to help the White/Caucasian counselor. ER 000059; SAC ¶ 26. The

denial of Appellant’s repeated requests for IB training also contributed to the

hostile environment, as Appellant suffered the humiliation of being unable to

respond to an IB specialist and was unable to perform her assigned duties as one

of the IB school level leads. ER 000057-58; SAC ¶¶ 21-23.

C. Appellant Has Sufficiently Plead A Disparate Treatment Claim.

“In addition to facing liability by creating a hostile work environment, an

employer is liable under Title VII when it subjects an employee to disparate

treatment. To show a prima facie case of disparate treatment, a plaintiff must offer

evidence that gives rise to an inference of unlawful discrimination.” Reynaga, 847

F.3d at 690 (citations and internal quotation marks omitted).

One way to establish an inference of discrimination is by satisfying theprima facie elements from McDonnell Douglas Corp. v. Green, 411 U.S.792, 802 (1973): (1) the plaintiff belongs to a protected class, (2) he wasperforming according to his employer’s legitimate expectations, (3) hesuffered an adverse employment action, and (4) similarly situatedemployees were treated more favorably, or other circumstances surroundingthe adverse employment action give rise to an inference of discrimination.

Reynaga, 847 F.3d at 690-691 (citations omitted).

“However, nothing compels the parties to use the McDonnell Douglas

framework.” Reynaga, 847 F.3d at 691 (citing McGinest v. GTE Serv. Corp., 360

F.3d 1103, 1122 (9 Cir. 2004)). “In the alternative, a plaintiff may simplyth

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produce direct or circumstantial evidence demonstrating that a discriminatory

reason ‘more likely than not motivated’ the employer.” Reynaga, 847 F.3d at 691

(quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9 Cir. 2007)). “Either way,th

we require ‘very little evidence to survive summary judgment in a discrimination

case, because the ultimate question is one that can only be resolved through a

searching inquiry -one that is most appropriately conducted by the factfinder, upon

a full record.’” Reynaga, 847 F.3d at 691 (quoting Schnidrig v. Columbia Mach.,

Inc., 80 F.3d 1406, 1410 (9 Cir. 1996)).th

Here, Appellant’s SAC includes allegations which satisfy both the McDonnell

Douglas framework and the Reynaga/Metoyer “more likely than not motivated” by

discriminatory reason standard. Indeed, if “very little evidence” is required to

survive summary judgment in a discrimination case, the allegations in Appellant’s

SAC herein are more than sufficient to survive a motion for judgment on the

pleadings.

The District Court’s Order Granting Appellee’s Second Motion for

Judgment on the Pleadings (ER 00001-41) incorrectly maintains that Appellant

must identify another employee who was assaulted by a parent in order to meet the

requirement of a “similarly situated” employee. However, Appellant maintains

that the White/Caucasian male counselor was a similarly situated employee in that

27





regard because he was the only other counselor at IPES with Appellant. They held

the same title and were supposed to perform the same duties if discrimination did

not exist. Appellant was assaulted by a parent, and she was forced to continue

working with the subject student simply because Appellee did not want to

inconvenience the White/Caucasian counselor. ER 000059-61; SAC ¶¶ 29-36. In

other words, Appellant’s physical and emotional safety and well-being were less

important than the comfort of the similarly situated White/Caucasian employee.

This resulted in Appellant being forced to take leave and file a claim for workers’

compensation benefits, all of which are adverse actions for purposes of both the

McDonnell Douglas test and the retaliation claim after Appellant had complained

of the disparate treatment in writing to Armstrong and orally to Hurley.

D. Appellant Has Sufficiently Plead A Claim of Retaliation.

Appellant engaged in protected activity by opposing the discriminatory

conduct of Appellee, she suffered numerous adverse employment actions in that

she was treated unfairly as opposed to the White/Caucasian school counselor and

placed in harm’s way, and the adverse employment actions were causally related

to Appellant’s protected activity. See, Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054, 1064 (9 Cir. 2002).th

28




In this Court’s evaluation of a claim of retaliation under California’s Fair

Employment and Housing Act in Flores v. City of Westminster, 873 F.3d 739,

748-49 (9 Cir. 2017), the Court noted that “‘[a] discriminatorily abusive workth

environment...can and often will detract from employees’ job performance,

discourage employees from remaining on the job, or keep them from advancing in

their careers.’” Flores, 873 F.3d 739, 748 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 22 (1993). Also, “the phrase ‘terms and conditions of employment’

must be interpreted liberally and with a reasonable appreciation of the realities of

the workplace in order to afford employees the appropriate and generous

protection against employment discrimination.” Flores, 873 F.3d 739, 748-749.

“Further, alleged acts of retaliation may be considered collectively to determine

whether, taken together, they constitute an adverse employment action under the

statute.” Flores, 873 F.3d 739, 749 (citations omitted).

Appellant has stated a prima facie case of retaliation, as the Second

Amended Complaint alleges she engaged in protected activity in that she opposed

the discriminatory practices of Appellee on numerous occasions (ER 000058; SAC

¶ 21; ER 000059; SAC ¶ 27), that she suffered adverse employment actions (ER

000059-61; ¶¶ 27-36), and a causal link exists between the protected activity and

the adverse actions (ER 000059-61; ¶¶ 27-36). Clearly, Appellee would have

protected Appellant’s safety in the situation involving the assault by the parent had

29








Appellant not continually opposed Appellee’s discriminatory practices, and, due to

the District Court’s granting of Appellee’s Second Motion for Judgment on the

Pleadings, Appellee has not yet been required to proffer legitimate, non-retaliatory

reasons for its adverse employment actions against Appellant, which actions

“would deter reasonable employees from complaining about Title VII violations.”

Reynaga, 847 F.3d at 693 (quoting Brooks v. City of San Mateo, 229 F.3d 917,

928 (9 Cir. 2000)).th

IV. Conclusion

As Appellant has sufficiently plead her claims of discrimination and

retaliation, this Court should reverse the District Court’s dismissal of the Second

Amended Complaint and the Judgment in a Civil Case, and this matter should be

remanded with the instruction that Appellant has properly stated triable issues of

fact for resolution by a factfinder at trial. At a minimum, the dismissal of

Appellant’s Second Amended Complaint should be reversed, and the matter

should be remanded in its entirety to be properly litigated before the District

Court.

DATED: Honolulu, Hawaii, October 22, 2018.

/s/ Ryan K. Harimoto RYAN K. HARIMOTO

Attorney for Plaintiff - AppellantSTEPHANIE DIXON

30





STATEMENT OF RELATED CASES

Appellant is unaware of any related cases in this Court.





UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE DIXON,

Plaintiff - Appellant,

vs.

STATE OF HAWAII -DEPARTMENT OF EDUCATION,

Defendant - Appellee.______________________________

)))))))))))

9 Circuit No. 18-16090TH


[Re: Appellant’s Opening Brief]


The undersigned hereby certifies that a true and correct copy of the foregoing

document shall be duly served electronically through CM/ECF on October 22, 2018:

JAMES E. HALVORSON [email protected]. MAX LEVINS [email protected] Attorneys GeneralDepartment of the Attorney General,State of Hawaii235 S. Beretania Street, 15 Floorth

Honolulu, Hawaii 96813

Attorneys for Defendant - AppelleeSTATE OF HAWAII - DEPARTMENT OF EDUCATION





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