Patricia Campbell v. Edu-Hi , 892 F.3d 1005 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA P. CAMPBELL, No. 15-15939
Plaintiff-Appellant,
D.C. No.
v. 1:13-cv-00083-
DKW-RLP
STATE OF HAWAII DEPARTMENT OF
EDUCATION; PATRICIA HAMAMOTO,
Superintendent of Public Schools, OPINION
sued in her official capacity; BRUCE
ANDERSON, Maui Complex Area
Superintendent, sued in his
individual and official capacities;
SUSAN SCOFIELD, Principal of King
Kekaulike High School, sued in her
individual and official capacities;
ANTHONY JONES, Vice Principal of
King Kekaulike High School, sued in
his individual and official capacities;
ROBYN HONDA, Personnel Regional
Officer, sued in her individual and
official capacities; BARBARA OURA,
Vice Principal of King Kekaulike
High School, sued in her individual
and official capacities; KURTIS SAIKI,
Athletic Director of King Kekaulike
High School, sued in his individual
and official capacities,
Defendants-Appellees.
2 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted February 12, 2018
Honolulu, Hawaii
Filed June 11, 2018
Before: Diarmuid F. O’Scannlain, Richard R. Clifton,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge O’Scannlain
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 3
SUMMARY *
Employment Discrimination
The panel affirmed the district court’s grant of summary
judgment in favor of the defendants on employment
discrimination claims brought by a public high school
teacher who was verbally harassed by her students.
Affirming the district court’s grant of summary
judgment on the teacher’s Title VII claims of disparate
treatment based on her sex and race, the panel held that the
teacher failed to establish a prima facie case because she did
not show that she was subject to an adverse employment
action or that similarly situated individuals outside her
protected class were treated more favorably.
The panel also affirmed the district court’s grant of
summary judgment on the teacher’s Title VII hostile work
environment claim. The panel held that the defendant public
school system could be held liable for students’ harassing
conduct only to the extent that it failed reasonably to respond
to the conduct or ratified or acquiesced in the conduct.
On the teacher’s Title VII retaliation claim, the panel
held that she failed to establish that the defendants’ asserted
rationale for its actions was mere pretext.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
Finally, the panel affirmed the district court’s grant of
summary judgment on the teacher’s Title IX claims for
intentional discrimination.
COUNSEL
Daphne E. Barbree (argued), Law Office of Daphne Barbee,
Honolulu, Hawaii, for Plaintiff-Appellant.
Miriam P. Loui (argued) and James E. Halvorson, Deputy
Attorneys General; Douglas S. Chin, Attorney General;
Department of the Attorney General, Honolulu, Hawaii; for
Defendants-Appellees.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a high school teacher who was
verbally harassed by her students has identified sufficient
evidence to support claims for violations of her federal civil
rights against the public school system that employed her.
I
Patricia Campbell was employed by the Hawaii
Department of Education (DOE) from 2000 until she
resigned in July 2009. From 2004 through 2007, Campbell
taught music and band at King Kekaulike High School
(KKHS) on the island of Maui. Unfortunately, Campbell’s
experience at KKHS was hardly pleasant. Instead, her
tenure at the school was marred by numerous accusations of
misconduct perpetrated against, and by, Campbell.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 5
A
Campbell alleges that, throughout her time at KKHS, she
was frequently harassed and degraded by students on the
basis of her race (white) and her sex (female). She alleges
that students called her a slew of offensive names, including
“fucking weirdo,” “cunt,” “bitch,” and “fucking haole.” 1
According to Campbell, she was even physically threatened
by one student who claimed to have a gun.
Campbell routinely reported the students’ misconduct to
DOE administration during the 2006–2007 school year. In
response, Vice Principals Barbara Oura and Anthony Jones
investigated Campbell’s many complaints and imposed a
variety of disciplinary measures against those students who
were found to have misbehaved. The punishments ranged in
severity based on both the nature of the misconduct and the
student’s past disciplinary history. Some students were
given formal warnings or disciplinary counseling, others
were placed in detention, and some were suspended from
school for up to three days. Four students were even
transferred out of Campbell’s classes at her request.
Although Campbell has no reason to doubt that these
disciplinary measures took place, she claims that the school
never informed her of them at the time.
B
Contemporaneously, Campbell herself was the subject of
numerous complaints. During the 2006–2007 school year,
Vice Principal Oura investigated complaints which the DOE
1
“Haole,” as previously described by our court, is “a Hawaiian term,
sometimes used derogatorily, referring to persons of the Caucasian race.”
BKB v. Maui Police Dep’t, 276 F.3d 1091, 1095 n.2 (9th Cir. 2002).
6 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
had received from students, parents, and at least one other
teacher, accusing Campbell of a variety of misconduct,
including physical and verbal abuse of students,
discrimination against students, and failure to maintain a
safe classroom environment. Because the DOE determined
that Campbell’s presence on campus would not interfere
with the investigation or present a threat to students, she was
allowed to continue working during the investigation. On
March 22, 2007, Oura concluded her investigation and found
that Campbell had intimidated and discriminated against
students, physically grabbed and verbally abused students,
failed adequately to supervise students at school-sanctioned
activities, and harassed a colleague. Despite Oura’s
findings, the DOE took no action against Campbell, who was
allowed to keep her position at the school.
On May 7, 2007, Campbell reportedly stormed into the
office of Vice Principal Jones as he was meeting with a
student. It is not entirely clear why Campbell confronted
Jones, but she allegedly yelled at Jones and others in the
office and refused to leave when asked. Two days later,
Jones held a counseling meeting with Campbell to discuss
the incident, and he later gave Campbell a memorandum
documenting that meeting. Among other things, Jones’s
memorandum stated that Campbell had “verbally ragged at”
a security officer, and it directed Campbell not to “address
adults or students on campus in a yelling or ragging
manner.”
Campbell took offense to the memo and in particular to
Jones’s use of the words “ragged” and “ragging,” which she
believed to be a reference to her menstrual cycle. The same
day she received the memo, Campbell complained to the
DOE Superintendent’s office about the incident and claimed
that Jones had stalked and sexually harassed her. Within a
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 7
week, the DOE initiated an investigation into Campbell’s
allegations, which concluded roughly two months later. The
investigator ultimately found that there was not enough
evidence to sustain Campbell’s allegations. In particular, the
investigator found that Jones’s use of the words “ragged”
and “ragging” was not derogatory, but rather was used to
mean that Campbell “railed at” or “scolded” others. No
further action was taken against Jones as a result of the
investigation.
C
At some point before the 2007–2008 school year,
Campbell requested a transfer to teach elsewhere on Maui—
specifically, to serve as the band director at Iao or Kalama
Intermediate Schools or to teach kindergarten at Haiku
School. Campbell alleges that she personally knew that the
band teacher at Iao retired in June 2007 and that the band
director at Kalama also “retired in 2007,” though she does
not specify when. She further alleges that she “was aware
there was a kindergarten teaching position open at Haiku,”
but she again does not provide any further detail about when
that position became open.
None of Campbell’s transfer requests was granted. With
respect to the band teaching position at Iao, the DOE
submitted evidence indicating that Campbell’s request was
denied because such position was not open during the
school’s annual transfer period in the Spring of 2007 2 and
Campbell failed to provide any information that would
qualify for an emergency transfer outside the normal transfer
2
The transfer period ran from February 28, 2007, through May 8,
2007, and the position did not become vacant until the band teacher
retired on July 31, 2007.
8 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
window. Evidence in the record suggests that Campbell’s
requests to transfer to the other schools were also untimely,
and she has not argued otherwise.
Unable to transfer, in August 2007 Campbell requested
and was granted a 12-month leave of absence without pay
due to work-related stress. Before the next school year,
Campbell requested and was granted a second year of unpaid
leave. In July 2009, as her second period of leave was
coming to an end, Campbell learned that, because there were
not enough students to support a full slate of music classes,
she had been assigned to teach three remedial math classes
and one or two music classes for the upcoming year.
Campbell told Principal Susan Scofield that she wouldn’t
teach remedial math (a subject for which she was not
certified), but Scofield insisted that Campbell would need to
teach such classes in order to complete her schedule.
Campbell never reported back to work after her leave
expired. After being told that she would be fired if she did
not return to work, Campbell resigned. Her resignation
indicated that she had left the school because of a hostile
work environment, fear for her safety, and her desire not to
teach remedial math.
D
On February 19, 2013, Campbell filed this suit against
the DOE and various administrators (defendants collectively
referred to as “the DOE”), alleging violations of her federal
and state civil rights. In particular, Campbell alleged that
she had been subjected to several acts of discriminatory
treatment and a hostile work environment because of her
race and her sex and that she had been retaliated against for
complaining of harassment at the school.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 9
The district court granted partial judgment on the
pleadings to the DOE and dismissed several of Campbell’s
claims. The court later granted summary judgment for the
DOE on Campbell’s remaining claims of disparate
treatment, hostile work environment, and retaliation under
Title VII of the Civil Rights Act of 1964 and sex
discrimination under Title IX of the Education Amendments
of 1972. Campbell timely appealed but she challenges only
the district court’s order granting summary judgment on
these four categories of claims. She does not challenge the
court’s earlier dismissal of her other claims.
II
We first consider Campbell’s argument that the district
court erred in granting summary judgment to the DOE on
her Title VII disparate treatment claims.
Title VII forbids certain employers from
“discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Campbell argues that the DOE violated this provision by
subjecting her to disparate treatment because of her sex and
race. To prevail, Campbell must first establish a prima facie
case by showing that: (1) she belongs to a protected class,
(2) she was qualified for the position in question, (3) she was
subject to an adverse employment action, and (4) similarly
situated individuals outside her protected class were treated
more favorably. Chuang v. Univ. of Cal. Davis, 225 F.3d
1115, 1123 (9th Cir. 2000).
If she does, the familiar McDonnell Douglas burden-
shifting framework applies. See id. at 1123–24. Under such
framework, if Campbell establishes a prima facie case, the
10 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
burden of production shifts to the DOE to articulate a
legitimate, nondiscriminatory reason for the challenged
conduct. Id. If the DOE does so, the burden then shifts back
to Campbell to show that the reason offered is pretextual. Id.
at 1124.
The DOE concedes that Campbell can establish the first
two elements of her prima facie case. The DOE argues,
however, that the record does not contain sufficient evidence
to establish the remaining elements of her claim. We agree.
A
For claims of disparate treatment under Title VII, an
adverse employment action is one that “materially affects the
compensation, terms, conditions, or privileges of
employment.” Davis v. Team Elec. Co., 520 F.3d 1080,
1089 (9th Cir. 2008) (internal quotation marks and
alterations omitted). Although Campbell argues that she
suffered a number of such actions, none are availing.
1
First, Campbell argues that the DOE committed an
adverse employment action by losing her 2006 performance
evaluation (in which she had been rated satisfactory in all
categories). But Campbell has not identified any evidence
that would show how the loss of such evaluation could have
materially affected the terms or conditions of her
employment. For example, there is nothing in the record to
suggest that the DOE’s inability to locate Campbell’s
performance evaluation had any bearing on the school’s
decision to take other actions regarding her employment. Cf.
Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir.
2000) (employment evaluation that was not disseminated
and did not lead to any changes in the employee’s job
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 11
responsibilities or benefits was not adverse employment
action). Further, the DOE does not deny that Campbell’s
performance in 2006 was indeed satisfactory, and there is
nothing to indicate that anyone at the DOE has attempted to
portray Campbell’s performance more negatively than was
reflected on the evaluation.
The district court did not err in concluding that the loss
of Campbell’s performance evaluation was not an adverse
employment action.
2
Next, and without elaboration, Campbell argues that the
school’s decision to “instigat[e] an investigation against” her
was an adverse employment action. But, as noted above,
Campbell was allowed to continue to work as normal
throughout this investigation, and even though the
investigator found that Campbell had committed
misconduct, the DOE nonetheless took no action against her
as a result. Indeed, Campbell does not identify a single
aspect of her work that changed as a result of the
investigation. The mere fact that the school received and
investigated allegations of misconduct against Campbell—
with no resulting change to the conditions of her
employment—is not an adverse employment action for
purposes of her disparate treatment claim. 3
3
As addressed below, merely investigating an employee might be a
sufficient adverse employment action for purposes of a Title VII
retaliation claim. See Lakeside-Scott v. Multnomah County, 556 F.3d
797, 803 n.7 (9th Cir. 2009); Poland v. Chertoff, 494 F.3d 1174, 1180
(9th Cir. 2007).
12 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
3
Campbell next argues that the DOE’s denial of her
request to transfer to another school was an adverse
employment action. Adverse employment actions may
include not only actions an employer affirmatively takes
against an employee (e.g., firing or demoting the employee)
but also situations in which the employer denies an
employee a material employment benefit or opportunity that
was otherwise available to her. See, e.g., Breiner v. Nev.
Dep’t of Corr., 610 F.3d 1202, 1208 (9th Cir. 2010) (“[T]he
denial of a single promotion opportunity . . . is actionable
under Title VII.”); Chuang, 225 F.3d at 1124–25 (denial of
promotion to tenured position that had been promised to a
professor was adverse employment action). The record,
however, does not support the conclusion that Campbell was
ever denied a transfer opportunity that her job actually
promised.
Campbell concedes that the DOE provided formal rules
for how tenured teachers like she could request a transfer to
a different school. Yet the record contains no evidence that
Campbell ever requested a transfer through such procedures.
Indeed, as outlined above, the record contains unrebutted
evidence that Campbell had not gone through the proper
transfer procedures and had failed to request any transfer
during the applicable transfer window from February 28,
2007, through May 8, 2007. Campbell herself stated that she
did not request a transfer until July 2007, well past the
deadline. Moreover, Campbell has not identified evidence
that would contradict the testimony of the DOE’s personnel
officer that Campbell failed to support a case for an
emergency transfer that could be granted outside the normal
procedures. There is no indication that the DOE had any
other policy or practice that would have allowed for
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 13
consideration of untimely and non-emergency transfer
requests like hers. Cf. Chuang, 225 F.3d at 1124–25 (denial
of tenure to professor who failed to submit formal
application was adverse action because school had granted
tenure in similar circumstances to other professors).
In short, the record cannot support the conclusion that
Campbell ever availed herself of the established channels
through which she might have been able to receive a transfer.
The failure to give Campbell what would essentially have
been a gratuitous accommodation was not an adverse
employment action.
4
Campbell also complains that, unlike some male
teachers who were put on paid administrative leave while the
school investigated complaints against them, she was never
given leave with pay. It is not clear whether Campbell
means to argue that the DOE committed an adverse
employment action by failing to place her on paid leave
during its investigation into the complaints against her, or
that the DOE committed such an action by failing to pay her
during her two years of voluntary leave. Regardless, both
arguments are meritless.
To the extent that Campbell complains that she was not
involuntarily placed on paid administrative leave during the
school’s investigation of her, she is essentially complaining
that the DOE chose not to alter the terms and conditions of
her employment. By not placing Campbell on leave, the
DOE instead allowed her to continue working just as she had
before, with no changes in her duties or the conditions of her
work. This decision to retain the status quo is quite
obviously not an adverse employment action.
14 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
If Campbell means to argue that she should have been
paid during her two years of voluntary leave, she has
completely failed to support the notion that the DOE had any
policy or practice that would allow teachers to volunteer for
extended periods of paid leave. The fact that other teachers
might have been paid when they were forced by the DOE to
take administrative leave is beside the point. The DOE never
placed Campbell on leave, nor did it do anything to prevent
her from continuing to work in her job if she so chose.
Campbell voluntarily applied for two consecutive years of
unpaid leave, and the school simply granted her requests.
Granting a teacher’s own request to take two years off of
work can hardly be said to be an adverse employment action.
5
Campbell next argues that the DOE committed an
adverse employment action when it assigned her to teach
remedial math classes (in addition to some music classes)
upon her anticipated return to teaching in 2009. Campbell
argues that because she was not certified to teach math, she
should have been given either additional music classes or
French classes, for which she is actually certified.
First, the record contains no evidence that the classes
Campbell preferred to teach were even available during the
2009–2010 school year. Indeed, Principal Scofield testified
that there were not enough music classes to fill Campbell’s
schedule. Second, Campbell has not identified any evidence
that would suggest the school had a policy or practice that
promised teachers they would only be assigned to classes
within certification areas. Again, Principal Scofield
provided unrebutted testimony to the contrary, stating that
“[a]ny other full time teacher without a complete
complement of classes . . . for the 2009–2010 school year
also would have been assigned to teach classes outside of
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 15
his/her certification area(s).” Indeed, Campbell herself
admitted that another band teacher at the school—Mr. Ota,
who had replaced her during her leave of absence—had also
been assigned to teach a subject for which he was not
certified (Japanese).
Because there were not enough music classes, and
because Campbell had specifically requested not to teach
dance anymore, Campbell needed additional classes to fill
her schedule. It so happens that the classes the school found
available for her were in remedial math. There is nothing in
the record to suggest that such assignment was unusual or,
more to the point, that it materially altered any term or
condition of Campbell’s employment at the school. Such
assignment was not an adverse employment action.
6
Finally, Campbell argues that the DOE’s failure to
respond adequately to her complaints of offensive student
conduct was also an adverse employment action. The record
simply does not support such assertion. As explained below,
there is no genuine dispute that the DOE did respond
adequately to Campbell’s complaints by taking prompt
action that was reasonably calculated to end the harassment
she alleged. See infra Part III.A. The DOE’s thorough
action in response to Campbell’s complaints did not
adversely affect the terms or conditions of her employment. 4
4
Campbell appears to have abandoned on appeal two additional
adverse employment actions that she argued before the district court:
(1) that she was assigned an “excessive” class schedule in 2006 and
(2) that she was denied the opportunity to lead the band at its
16 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
B
Moreover, even if the various alleged actions could be
adverse employment actions, the record is devoid of
evidence that any similarly situated employees of a different
race or sex were treated more favorably than Campbell was.
To satisfy such element, Campbell must identify employees
outside her race and sex who were similarly situated to her
“in all material respects” but who were given preferential
treatment; they must “have similar jobs and display similar
conduct.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d
1116, 1125 (9th Cir. 2009) (internal quotation marks and
emphasis omitted).
For many of Campbell’s claims, she has not identified
even a single employee for comparison. For example,
Campbell has not identified any other employees whose
untimely transfer requests were granted, who were accused
of misconduct but were not investigated by the DOE, or
whose complaints of student harassment were handled any
differently than her own. Indeed, Campbell has identified
performance at a state championship football game. Regardless, both
arguments would fail.
First, there is no actual evidence that Campbell was given an
especially burdensome class schedule. In 2006, she was assigned to
teach five subjects and a total of six classes; Principal Scofield provided
unrebutted testimony that such a schedule constitutes a “regular teaching
line of classes.”
Second, even assuming Campbell was not allowed to lead the band
at the championship football game, she has failed to show how her
inability to work at a single extracurricular activity somehow materially
altered the terms or conditions of her employment.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 17
only a handful of individuals who seem to have any
relevance to her case at all.
First, she claims that some male teachers were placed on
paid administrative leave as the DOE investigated
allegations of misconduct against them. But, even assuming
that these men were similarly situated to Campbell in all
material respects (which she has hardly attempted to show),
we have no reason to conclude that they were treated any
more favorably than she was. As mentioned, during
Campbell’s investigation, she was allowed to continue
working without restriction; it cannot be said that being
forced to take involuntary (even paid) leave is somehow
preferable to that. Indeed, we have held that, at least for
purposes of a First-Amendment retaliation claim, being
placed on involuntary paid leave can itself be an adverse
employment action. See Dahlia v. Rodriguez, 735 F.3d
1060, 1078 (9th Cir. 2013) (en banc). Even if Campbell is
right that she was treated differently than these men solely
because of her sex or her race, she has shown only that she
was treated better on that account.
Second, Campbell has argued that her replacement, Mr.
Ota, was not required to teach remedial math but instead
taught Japanese, a course for which he was not certified. But
Campbell has failed to show that she and Mr. Ota were
similar in all material respects. There is no indication, for
example, what other classes he taught, how full his schedule
was, the relative availability of other teachers to fill in for
the various classes at issue, or indeed whether he even
wanted to teach Japanese or was simply assigned it out of
necessity. Moreover, her comparison actually undercuts her
claim of disparate treatment, as it shows that other teachers
were also assigned to teach classes for which they were not
certified.
18 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
Campbell has also argued that Mr. Ota was generally
treated more favorably than she was and was allowed certain
liberties she was not. But even if that is true, Campbell has
not identified evidence that would show he was treated more
favorably in the specific situations relevant to her claims.
The record is completely devoid of any indication, for
example, that Mr. Ota filed transfer requests that were
handled differently, that the school declined to investigate
allegations of misconduct against him, or that he was granted
extended periods of paid leave. The general comparison,
therefore, is beside the point.
C
In sum, Campbell has failed to identify any evidence
showing that she suffered an adverse employment action and
the record is almost completely silent as to whether the
treatment Campbell experienced was shared by others in
materially similar circumstances. The district court did not
err in holding that, on the basis of such record, Campbell
cannot establish a prima facie claim for disparate treatment.
III
Campbell also argues that the DOE violated Title VII by
creating a hostile work environment that adversely affected
the terms or conditions of her employment. To establish a
prima facie case, Campbell must be able to show that,
because of her race or sex, she was subjected to unwelcome
conduct that was “sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive
working environment.” Fuller v. Idaho Dep’t of Corr.,
865 F.3d 1154, 1161 (9th Cir. 2017) (internal quotation
marks omitted). The work environment must be both
subjectively and objectively perceived as abusive. Id. We
consider all circumstances, with a particular focus on issues
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 19
such as the frequency and severity of the conduct, whether
the conduct was physically threatening or humiliating, and
the extent to which it unreasonably interfered with
Campbell’s work performance. Id. She must also be able to
show that the DOE itself is “liable for the harassment that
caused the hostile environment to exist.” Freitag v. Ayers,
468 F.3d 528, 539 (9th Cir. 2006).
A
Campbell primarily argues that her work environment
was made hostile by the derogatory comments she received
from students. First, we observe that most of the complaints
Campbell referred to the school were about issues unrelated
to her harassment claims—for example, class cutting or
general insubordination. Campbell did also submit several
referrals for offensive comments that were, by their very
terms, based on Campbell’s race or sex, some of which were
severe. But the students were not Campbell’s employers.
Thus, even if comments like the students’ are sufficient to
create a hostile work environment, the DOE may be held
liable for the students’ harassing conduct only to the extent
that it failed reasonably to respond to the conduct or to the
extent that it ratified or acquiesced in it. See id. at 538;
Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755–
56 (9th Cir. 1997). That is, the DOE may be held to account
for the students’ actions only if, after learning of the
harassment, it failed to take prompt corrective measures that
were “reasonably calculated to end the harassment.”
Freitag, 468 F.3d at 539–40 (internal quotation marks
omitted).
The record contains unrebutted evidence that, once it
learned of the students’ alleged harassment of Campbell, the
DOE did quite a lot in response. Campbell does not deny
that vice principals promptly investigated all incidents of
20 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
student misconduct she reported or that the school took
corrective action where her complaints were substantiated.
As we have related, those actions varied from issuing
warnings to some students, to placing others in detention,
suspending them, and even transferring some out of
Campbell’s classes. A few of Campbell’s complaints were
found after investigation to be unsubstantiated and thus
resulted in no discipline for the students. But Campbell has
not argued (and we see no evidence that would show) that
the DOE’s findings on such complaints were unfounded or
that the process that led to them was inadequate. Cf.
Swenson v. Potter, 271 F.3d 1184, 1196–97 (9th Cir. 2001)
(employer may reasonably decline to discipline alleged
harasser if, after conducting a fair investigation, it does not
“find what [the employer] consider[s] to be sufficient
evidence of harassment”). In other words, there can be no
dispute at this point that the DOE promptly evaluated and
responded to each of Campbell’s complaints. 5
Campbell does not seriously grapple with the
reasonableness of the many measures the DOE undertook.
Instead, her chief complaint seems to be that the DOE was
unable to put a complete stop to the harassment immediately,
and that students continued to harass her even after she
complained to the school. As a factual matter, Campbell
seems to overstate her case. Our record reflects very little
5
At most, Campbell suggests that she does not know whether
appropriate procedures were followed in all cases, because the school
failed to notify her at the time of any disciplinary measures it took against
the students. First, there is evidence in the record that such that such
information was available to Campbell in the school’s computer database
or upon request. Second, at this stage, the critical point is that Campbell
has failed to discover any evidence at all to contradict the DOE’s
testimony that the school did indeed follow such procedures in response
to all of Campbell’s complaints.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 21
recurrent harassment by students after they were disciplined
for similar conduct. During the 2006–2007 school year,
hardly any students were even referred by Campbell for
harassing her more than once, let alone found to have done
so. Moreover, of the many referrals filed by Campbell
during the school year, only four were for harassment that
occurred sometime after December 2006—three from the
same date in May 2007. As conceded at oral argument, at
most two of these referrals related to students who had been
disciplined for similar conduct before. And the record does
not reflect that any of the students later harassed Campbell
again. In other words, the evidence in the record suggests
that the school’s disciplinary process was quite effective at
stopping students from repeatedly harassing Campbell over
the course of the year.
More fundamentally, our law does not require an
employer to be immediately and perfectly effective in
preventing all future harassment by a third party. Again, the
question is one of negligence: Did the employer take steps
that were reasonably calculated to end the harassment of
which it was aware? Freitag, 468 F.3d at 538–40; Swenson,
271 F.3d at 1191–92, 1196; see also Saxon v. Am. Tel. & Tel.
Co., 10 F.3d 526, 536 (7th Cir. 1993) (“No doubt . . . AT &
T could have done more to remedy the adverse effects of
Richardson’s conduct. But Title VII requires only that the
employer take steps reasonably likely to stop the
harassment.”). Although the issue of whether the
employer’s actions successfully ended the harassment will
be relevant to the question of whether those actions were
reasonable, see Freitag, 468 F.3d at 540, our inquiry cannot
be purely retrospective. That a corrective action did not
actually end the harassment does not necessarily mean that,
at the time the employer chose such course of action, it was
unreasonable to expect that it would. We can evaluate the
22 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
reasonableness of an employer’s corrective measures only
from the perspective of what the employer knew or should
have known at the time it acted.
Thus, we have recognized that an employer must be
permitted to respond incrementally to allegations of
harassment by a third party. As an initial matter, the
employer must learn what actually happened. Indeed, “[t]he
most significant immediate measure an employer can take in
response to a sexual harassment complaint is to launch a
prompt investigation to determine whether the complaint is
justified.” Swenson, 271 F.3d at 1193. That is exactly what
the DOE did here. Such an investigation, itself, “is a
warning, not by words but by action” that puts all parties “on
notice that [the employer] takes such allegations seriously
and will not tolerate harassment in the workplace.” Id. Even
where a complaint is found to be true, sometimes counseling
or formally warning the perpetrator may be a sufficient
response if the circumstances suggest that such action is
reasonably expected to end the problem. See Star v. West,
237 F.3d 1036, 1039 (9th Cir. 2001); Intlekofer v. Turnage,
973 F.2d 773, 780, 783, 786 (9th Cir. 1992). Of course, if
the harassment continues, then the employer may need to
escalate to more aggressive disciplinary measures as less
severe measures prove inadequate. See Intlekofer, 973 F.2d
at 780, 783; see also Baldwin v. Blue Cross/Blue Shield of
Ala., 480 F.3d 1287, 1306 (11th Cir. 2007) (“This is not a
case where the employer’s first remedy proved inadequate,
and it failed to take further corrective action to correct the
problem.”). That is, the employer cannot unreasonably fail
to follow through on its warnings or repeatedly resort to
corrective measures that have proven ineffective.
The record in our case does not support a conclusion that
the DOE effectively turned a blind eye to the students’
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 23
misconduct or that it undertook only disciplinary measures
that were unlikely to resonate with the students. The school
did exactly what we have held it may do: it responded to the
circumstances of student misconduct by investigating each
incident and then by imposing corrective measures it deemed
to be reasonably tailored to the incident at hand, including
by increasing punishments as needed. This is simply not a
case where the employer ignored, downplayed, or gave only
superficial lip service to complaints that its employees were
being harassed while on the job. See, e.g., Freitag, 468 F.3d
at 533–35, 539–40 (prison could be held liable for repeated
harassment of prison guard by inmates, where prison
officials ignored and failed to act on multiple complaints of
such harassment).
Finally, we must keep in mind that the DOE was dealing
with the misbehavior of adolescent students. In this setting,
DOE administrators imposed a variety of the quintessential
disciplinary measures at their disposal, and to great effect.
Campbell’s suggestion that the DOE’s response should have
been even more severe and exacting—that it should have
done everything in its means immediately and permanently
to end all student harassment once it started—would be
essentially impossible to satisfy, unless Campbell means to
suggest that Title VII requires a school to behave in the most
draconian way possible, perhaps by expelling any student
who ever harasses a teacher. While such action may be
appropriate in some situations, this is not what the law
requires in all circumstances. See, e.g., Lucero v. Nettle
Creek Sch. Corp., 566 F.3d 720, 732 (7th Cir. 2009) (school
acted reasonably by suspending students who harassed
teacher); Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 997
(7th Cir. 2002) (school responded reasonably to complaints
of harassment in hallways by posting hall monitors to find
and discipline responsible students).
24 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
B
Aside from the student conduct that forms the core of her
hostile work environment claim, Campbell alleges only two
isolated incidents of harassment committed by school
officials themselves, both relating to Vice Principal Jones.
1
First, Campbell argues that Jones created a hostile work
environment when he chided Campbell for “ragging” at
students and staff. A memorandum formally reprimanding
Campbell for these actions stated that she “verbally ragged”
a security officer and students, and it instructed her not to
address people on campus “in a yelling or ragging manner.”
Campbell argues that Jones’s use of the phrase “ragging”
or to “rag” on or at someone was sexually motivated and
offensive. Namely, she contends that these comments are
tantamount to the phrase “on the rag”—a phrase both sides
concede can be a crass and insulting way to refer to a
woman’s menstrual cycle. She argues that a reasonable jury
could therefore conclude that Jones’s use of such language
created a sexually hostile work environment. We disagree.
First, Campbell’s argument entirely disregards the
difference between the well-known phrase to “rag” or “rag
on” something and the potentially offensive phrase “on the
rag.” As both the DOE’s investigator and the district court
found, the distinction is critical. The phrase to “rag”
something is not at all offensive; it simply means “rail at”
and “scold” or “torment” and “tease.” Rag, Merriam-
Webster Dictionary, https://www.merriam-
webster.com/dictionary/rag (last visited May 29, 2018);
accord Rag, Oxford English Dictionary,
http://www.oed.com/view/Entry/157425 (last visited May
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 25
29, 2018). Webster’s gives a perfectly benign example:
“[S]everal readers called in to rag the editor for his paper’s
repeated grammatical lapses.” Rag, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/rag
(last visited May 29, 2018). Campbell points to nothing that
would contradict this well understood meaning of to “rag”
or “rag on” something. Instead, she conflates the phrases,
repeatedly citing sources that recognize the offensive nature
of specifically saying that a woman is “on the rag,” but
which say nothing of the phrases Jones actually used.
Second, even if Jones’s one-time comments could
somehow be construed as a veiled reference to Campbell’s
menstrual cycle, those isolated comments would not alone
support a claim for a hostile work environment. See, e.g.,
EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 998
(9th Cir. 2010) (“A violation is not established merely by
evidence showing sporadic use of abusive language, gender-
related jokes, and occasional teasing.” (internal quotation
marks omitted)); Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027, 1034 (9th Cir. 2005) (“Simple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the
terms and conditions of employment.” (internal quotation
marks omitted)); Kortan, 217 F.3d at 1110 (rejecting hostile
work environment claim where offensive comments were
“mainly made in a flurry” on one day). As soon as Campbell
complained about Jones’s comments, the school investigated
and found the incident to warrant no further punishment.
Such isolated comments were not part of a larger series of
ongoing harassment that Campbell suffered; there is no
suggestion that Jones had ever made such comments to her
before or that he ever did again.
26 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
2
Second—and largely in passing—Campbell argues that
Jones contributed to a hostile working environment by
allegedly referring over the school’s loudspeaker to female
students who dressed as “hoochi mammas” and commenting
at a faculty meeting that the students needed to “cover up
their business.” Certainly, these alleged remarks are gender-
specific and potentially offensive. But, once again, such
passing comments cannot support Campbell’s claim for a
hostile work environment, especially as they were not
directed at Campbell or even at female employees in general.
Cf. Kortan, 217 F.3d at 1110 (suggesting that comments
directed at people other than the plaintiff are less severe).
Indeed, it is not clear whether Campbell even heard Jones
make such remarks herself; the only reference to them in our
record is from the testimony of another school employee.
And Campbell certainly has not found evidence to show that
these alleged remarks about student attire were anything
more than isolated incidents.
In sum, alone or in combination, the few isolated and
relatively mild comments that Campbell alleges Jones made
in reference to her or to female students are not sufficient to
show a severe and pervasive environment that altered the
terms or conditions of Campbell’s employment. See
Prospect Airport Servs., 621 F.3d at 998–99; Dominguez-
Curry, 424 F.3d at 1034. Because Campbell has not
identified any other allegedly harassing conduct that can be
attributed to the DOE, the district court did not err in
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 27
granting summary judgment to the DOE on Campbell’s
hostile work environment claims. 6
IV
Next, Campbell argues that the DOE violated Title VII’s
anti-retaliation provisions by taking action against her
because she voiced complaints of harassment at the school.
Title VII prohibits employers from “discriminat[ing]
against” an employee “because he has opposed any practice”
prohibited under Title VII. 42 U.S.C. § 2000e-3(a). To
establish a prima face claim of retaliation, Campbell must be
able to show that she suffered an adverse employment action
because she engaged in activity protected by the statute. See
Davis, 520 F.3d at 1093–94. Once again, if she can establish
a prima facie case, then the McDonnell Douglas framework
applies, shifting the burden to the DOE to show a non-
retaliatory justification for the challenged action, and then
back to Campbell to show that the proffered justification is
pretextual. Id. at 1088–89, 1094–95.
A
The DOE argues that, once again, Campbell cannot
establish even a prima facie case because the record does not
support a finding that she suffered any adverse employment
6
For these same reasons, we reject Campbell’s suggestion that her
resignation was “not voluntary” and that in effect she was constructively
discharged. Because Campbell does not raise a genuine issue of material
fact regarding the hostile work environment claim, she likewise fails to
raise a genuine issue of material fact on constructive discharge. See
Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000).
28 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
action. 7 And Campbell indeed relies on the same alleged
adverse actions discussed above to support her retaliation
claims. But, even though such actions are insufficient to
sustain a prima facie case of disparate treatment, Title VII
retaliation claims may be brought against a much broader
range of employer conduct than substantive claims of
discrimination. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67–68 (2006). Namely, a Title VII
retaliation claim need not be supported by an adverse action
that materially altered the terms or conditions of the
plaintiff’s employment; instead an allegedly retaliatory
action is subject to challenge so long as the plaintiff can
show that “a reasonable employee would have found the
challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id.
at 68 (internal quotation marks omitted). Thus, even though
the DOE’s alleged actions cannot support Campbell’s claims
of disparate treatment, the same is not necessarily true for
her retaliation claims.
To be sure, even under this broader standard, most of the
alleged adverse actions cannot support a prima facie case of
retaliation. For the same reasons discussed above, Campbell
has simply failed to identify any evidence in the record that
would support her assertions that she was denied an
appropriately submitted request to transfer to a vacant
position at another school or that she was denied an
opportunity to receive paid administrative leave. Likewise,
even if the school did lose its copy of Campbell’s
satisfactory 2006 performance evaluation, Campbell has not
pointed to any evidence to support the notion that such loss,
7
The DOE does not dispute that Campbell may be able to establish
the other elements of a prima facie case.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 29
standing alone, is the type of “material adversity” that would
reasonably chill a teacher from exercising her protected
rights in the future. See id. (emphasis omitted).
But two potential adverse employment actions remain:
(1) the DOE’s investigation into Campbell’s alleged
misconduct and (2) Campbell’s assignment to teach
remedial math for the 2009–2010 school year. We have
previously indicated that merely investigating an
employee—regardless of the outcome of that
investigation—likely can support a claim for Title VII
retaliation. See Lakeside-Scott, 556 F.3d at 803 n.7; Poland,
494 F.3d at 1180. And a generous reading of Campbell’s
allegations might suggest that Principal Scofield
intentionally assigned Campbell to teach a subject that she
knew Campbell disliked. Even if such assignment did not
alter the terms or conditions of Campbell’s employment,
arguably such intentionally unfavorable assignments could
be expected to dissuade other teachers form voicing
complaints in the future.
We assume arguendo that either of these two allegations
could support Campbell’s prima facie case for retaliation.
Even if so, Campbell’s claims fail at the remaining steps of
our McDonnell Douglas inquiry.
B
Once Campbell establishes a prima facie case for
retaliation, the burden shifts to the DOE to produce evidence
showing that the challenged actions were done for non-
retaliatory purposes. Thus, assuming that Campbell can
establish a prima facie claim based on the school’s decision
to investigate her and her assignment to teach remedial math,
the DOE must show that both actions were, in fact, supported
by neutral reasons. If it does, the burden then shifts back to
30 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
Campbell to point to evidence that may show the DOE’s
asserted rationale to be mere pretext.
1
Based on the evidence in the record, the DOE has clearly
met its burden of supplying evidence of neutral, non-
retaliatory reasons for its actions. First, the DOE has
provided unrebutted evidence that it investigated Campbell
specifically because it received multiple allegations of
misconduct against her from parents, students, and staff.
There is no dispute that the DOE is permitted—indeed,
required—to investigate when it receives credible
allegations of teacher misconduct and in particular to ensure
the wellbeing of its students.
Second, Principal Scofield testified that she assigned
Campbell to teach remedial math because there were not
enough music classes available to fill a teaching schedule.
She testified that this was in keeping with her standard
practice for ensuring teachers had full-time schedules when
there were not enough courses in their certified areas, and
that any other teacher in Campbell’s position would have
received a similar assignment.
2
Campbell has not pointed to evidence that would carry
her burden of showing that the school’s neutral justifications
for its actions were pretextual. Campbell may do so either
“directly by persuading the court that a [retaliatory] reason
more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of
credence.” Davis, 520 F.3d at 1089 (internal quotation
marks omitted). She has not identified evidence that could
be sufficient to do either.
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 31
First, Campbell has essentially not responded to the
DOE’s assertion that it had to investigate, and could not
ignore, the credible allegations of misconduct against her.
Campbell certainly does not dispute that students, parents,
and coworkers had levied such accusations against her—
accusations which, it turns out, were found largely to be true.
And she has not pointed to evidence that would show that
other DOE employees were let off the hook when similar
allegations had been raised. Indeed, the record shows that at
least Vice Principal Jones was similarly investigated when
Campbell herself accused him of harassment. Elsewhere,
Campbell refers to the DOE’s investigation of other teachers
who were accused of misconduct, with no suggestion that
such teachers had similarly engaged in protected activity
under Title VII. In short, Campbell has pointed to no
evidence at all to dispute, let alone to refute, the school’s
neutral justification for its decision to investigate her.
Second, Campbell does not dispute that there were not
enough band and music classes available to fill her schedule
during the 2009–2010 school year, nor that she was required
to teach six classes as a full-time teacher, nor that it was
common for the school to assign teachers to classes outside
their core areas when necessary. Instead, Campbell’s only
argument that the DOE’s justification for assigning her to
teach remedial math was pretextual seems to be that Mr. Ota
was allowed to teach Japanese as an additional subject,
though she was not allowed to teach French. However,
Campbell has identified no evidence that there were indeed
French classes available to be taught during the 2009–2010
school year. Nor has she given any reason to believe that
Mr. Ota preferred to teach Japanese over other subjects that
might have been available, like remedial math. And, of
course, Campbell’s recognition that Mr. Ota was also
assigned to teach a class outside his core area seems to
32 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
undermine—not support—her claim of pretext. The simple
fact that Mr. Ota was not also assigned to the specific class
that Campbell apparently disliked is not enough to show that
the school was more likely motivated by retaliatory animus
than by its stated legitimate reasons for assigning such class
to Campbell.
Campbell has failed to raise a triable issue regarding her
retaliation claim.
V
Finally, Campbell argues that the DOE’s conduct
violated Title IX’s command that no person “shall, on the
basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Campbell claims that the
DOE violated this provision both by directly and
intentionally discriminating against her in the ways
described above, and by acting with deliberate indifference
to the sexual harassment she endured from students and from
Vice Principal Jones.
A
Campbell’s Title IX claims for intentional sex
discrimination mirror those she raised under Title VII.
Indeed, federal courts generally evaluate employment
discrimination claims brought under both statutes
identically, and the parties concede that the same analysis
should apply to both here. See Weinstock v. Columbia Univ.,
224 F.3d 33, 42 n.1 (2d Cir. 2000); Johnson v. Baptist Med.
Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996); see also Wolfe v.
Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 865 n.4 (8th Cir.
2011) (collecting Title IX cases applying guidance from
CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC. 33
Title VII standards); Oona R.S. v. McCaffrey, 143 F.3d 473,
476–78 (9th Cir. 1998) (discussing applicability of Title VII
standards to Title IX claims). Thus, for the same reasons
expressed above, the district court did not err in granting
summary judgment to the DOE on Campbell’s Title IX
discrimination claims.
B
Likewise, Campbell’s claim that the DOE acted with
deliberate indifference to the sexual harassment she endured
from students and from Vice Principal Jones essentially just
repeats her Title VII claim that the DOE fostered a hostile
work environment by failing reasonably to respond to
Campbell’s complaints of harassment. Indeed, under Title
IX the DOE may be held liable for its deliberate indifference
to the harassment Campbell allegedly endured only if its
response to such harassment was “clearly unreasonable.”
Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir.
2006) (internal quotation marks omitted). Because it cannot
be doubted that the school’s thorough response to
Campbell’s complaints of student harassment was
reasonably calculated to end the problem, the DOE cannot
be said to have been deliberately indifferent to the situation.
Likewise, we see no basis in the record to support a
conclusion that the DOE acted with deliberate indifference
to Campbell’s complaints about harassment from Vice
Principal Jones. Just as was the case with Campbell’s
complaints of student misconduct, the DOE immediately
conducted an investigation into her allegations against
Jones. That investigation ultimately determined that Jones
had not engaged in misconduct. Campbell does not contend
that the process that led to this conclusion was somehow
inadequate. And Campbell does not assert that Jones
thereafter did anything else to harass her. In sum, Campbell
34 CAMPBELL V. STATE OF HAWAII DEP’T OF EDUC.
has not pointed to anything in the record that would show
the school’s handling of her complaints against Jones was
clearly unreasonable.
The district court did not err in concluding that
Campbell’s Title IX claims fail for essentially the same
reasons that her Title VII claims do.
VI
The judgment of the district court is AFFIRMED.