Dixon v. State of Hawaii, Department of Education

Filing 54

ORDER GRANTING DEFENDANT STATE OF HAWAII, DEPARTMENT OF EDUCATION'S MOTION FOR JUDGMENT ON THE PLEADINGS WITH LEAVE TO AMEND re 35 Motion for Judgment on the Pleadings. Signed by JUDGE DERRICK K. WATSON on 12/05/2017. Defendant's Motion for Judgment on the Pleadings is GRANTED. Dkt. No. 35 . Dixon is granted leave to file an amended complaint to attempt to cure the deficiencies noted in this Order, as to claims that are not time-barred, by Jan uary 5, 2018. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STEPHANIE DIXON,

CV. NO. 16-00110 DKW-KJM

Plaintiff,
vs.
STATE OF HAWAII, DEPARTMENT
OF EDUCATION,

ORDER GRANTING DEFENDANT
STATE OF HAWAII,
DEPARTMENT OF EDUCATION’S
MOTION FOR JUDGMENT ON
THE PLEADINGS WITH LEAVE
TO AMEND

Defendant.

INTRODUCTION
Stephanie Dixon brings discrimination, hostile work environment, and
retaliation claims against her current employer, the State of Hawaii, Department of
Education (“DOE”), asserting that she was treated less favorably than a similarly
situated white male employee when she was denied training opportunities, forced to
share an office with another African American school counselor, and eventually
moved to a smaller office. Dixon alleges that the DOE took no action when she
complained about the disparate treatment, but instead retaliated against her when she
reported an assault by a parent of one of her students. The DOE seeks judgment on
the pleadings as to each of her claims under federal and state law.

To the extent Dixon’s claims for disparate treatment and retaliation are based
upon discrete acts occurring more than 300 days before she filed her Charge of
Discrimination, those claims are dismissed with prejudice as untimely. Further,
because Dixon fails to adequately state claims upon which relief may be granted, her
timely discrimination and retaliation claims (based upon the 2012 incident involving
the assault by a student’s parent) and her hostile work environment claims are
dismissed as well. Dixon is permitted limited leave to file an amended complaint
consistent with the terms of this Order.
BACKGROUND
Dixon has been employed by the DOE from 1999 to the present, and in July
2006, she was assigned to Iroquois Point Elementary School (“IPES”) to work as a
school counselor. First Am. Compl. (“FAC”) ¶¶ 5–6, Dkt. No. 8. The only
African American female counselor, Dixon alleges that beginning in 2008, the DOE
subjected her to “disparate and differential treatment as compared to similarly
situated, non-African American employees.” FAC ¶¶ 10–12.
In January 2008, Principal Heidi Armstrong, a Caucasian female, forced
Dixon 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. FAC ¶¶ 7, 12. Although Dixon expressed her
concerns to Armstrong about this shared-office arrangement, Armstrong required
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the two African American females to share the same office until the SBBH left IPES
in approximately June 2009. FAC ¶ 13.
Dixon also alleges that she was treated differently than, and denied
opportunities afforded to, Nicholas Barry, a Caucasian male school counselor.
From September 2009 to January 2012, Dixon was not allowed to attend training in
connection with IPES’ transition to becoming an International Baccalaureate school,
even though Barry was allowed to do so. FAC ¶¶ 14–15. In addition to
performing her own duties as a school counselor, Dixon alleges she was also
expected to provide assistance to others at IPES, whereas Barry did not have the
same additional expectations. FAC ¶ 16. In November 2009, Armstrong
relocated Dixon’s office from a portable classroom to a converted library storage
closet, which was approximately one-fifth the size of Barry’s office in the library
conference room. FAC ¶¶ 17–18. Dixon also claims that she was required to find
her own substitute when she was absent, but Barry was not required to do the same.
FAC ¶¶ 19–20. According to Dixon, “[o]n many occasions [she] attempted to
address her concerns about the disparate treatment to which she had been subject but
no changes were made.” FAC ¶ 21. Instead, her concerns were often met with
hostility by Armstrong and Vice Principal, Robert Hurley, a Caucasian male. FAC
¶¶ 8, 21.

3

In August 2012, Dixon alleges she was verbally and physically assaulted by a
parent of a student to whom she had been assigned. FAC ¶ 22. Dixon reported the
assault to Principal Ofelia Reed, a Filipino American female who replaced
Armstrong in August 2012, but Dixon claims no action was taken following her
report. FAC ¶¶ 9, 23. Dixon requested that Barry be assigned to work with this
student, but Principal Reed refused the reassignment request, and instead, “expected
Plaintiff to continue working with the student and the parent who assaulted
Plaintiff.” FAC ¶ 24–25. According to Dixon, Reed told her on October 10, 2012
that Barry would not be reassigned because Barry “does not do well with change.”
FAC ¶ 26.
Dixon went on leave beginning October 12, 2012, “due to the harassment and
discrimination to which Defendant had subjected her,” FAC ¶27, and filed a charge
of discrimination with the U.S. Equal Employment Opportunity Commission
(“EEOC”). FAC ¶ 28.
On March 11, 2016, Dixon filed the current action against the DOE pursuant
to Title VII, 42 U.S.C. § 2000e, et seq. On June 7, 2016, Plaintiff filed the FAC
asserting two Counts for “Illegal Employment Discrimination” and “Retaliation” in
violation of both Title VII and Hawaii Revised Statutes (“HRS”) Chapters 368 and
378. Count I alleges discrimination based on Dixon’s race, color and sex, alleging
that the DOE “treated Plaintiff differently as compared to similarly situated
4

employees who were not of the same race, color, or sex,” FAC ¶ 31, and that the
conduct of “Defendant’s supervisory and administrative employees against Plaintiff
created a hostile and offensive working environment.” FAC ¶ 32. Count II asserts
that the DOE retaliated against Dixon for bringing complaints of “harassment and
discrimination which were violations of State and Federal law,” FAC ¶ 38, and that
such “retaliation by Defendant reflects a pattern and practice of illegal behavior.”
FAC ¶ 39.
The DOE moves for judgment on the pleadings and requests the dismissal of
each of Dixon’s claims with prejudice.
STANDARD OF REVIEW
The standard governing a Rule 12(c) motion for judgment on the pleadings is
functionally identical to that governing a Rule 12(b)(6) motion. United States ex
rel. Caffaso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011).
For a Rule 12(c) motion, the allegations of the nonmoving party are accepted as true,
while the allegations of the moving party that have been denied are assumed to be
false. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th
Cir. 1989). A court evaluating a Rule 12(c) motion must construe factual
allegations in a complaint in the light most favorable to the nonmoving party.
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Under Rule 12(c),
“[j]udgment on the pleadings is properly granted when, accepting all factual
5

allegations as true, there is no material fact in dispute, and the moving party is
entitled to judgment as a matter of law.” Chavez v. United States, 683 F.3d 1102,
1108 (9th Cir. 2012) (quoting Fleming, 581 F.3d at 925); see also Jensen Family
Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937
n.1 (9th Cir. 2011). As detailed below, the DOE has met this standard.
DISCUSSION
First, Dixon’s state law claims are dismissed in light of the Defendant State
agency’s sovereign immunity. Second, insofar as her disparate treatment and
retaliation claims are based upon discrete acts occurring more than 300 days before
she filed her Charge with the EEOC, such claims are untimely and are dismissed.
Finally, although the DOE does not challenge the timeliness of her remaining causes
of action, because Dixon fails to adequately state claims for hostile work
environment, or for discrimination and retaliation based upon the 2012 incident
involving the assault by a student’s parent, those claims are likewise dismissed.
Because the DOE is entitled to judgment on the pleadings, the Court grants its
Motion but permits Dixon limited leave to amend her timely claims, with
instructions below.
I.

The State Law Claims Are Barred By The Eleventh Amendment
The DOE seeks dismissal of Dixon’s claims under HRS Chapters 368 and 378

based upon its sovereign immunity. The Eleventh Amendment prohibits suits
6

against state agencies “regardless of the nature of the relief sought.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh Amendment
immunity applies to claims brought against a state in federal court unless the state
consents or Congress unequivocally abrogates the immunity under its Fourteenth
Amendment authority. Id. at 99. The State of Hawaii has not consented to suit in
federal court for Chapter 368 or 378 claims, and thus sovereign immunity bars
Dixon’s § 378–2 claims against the DOE. See Lawrence v. Haw. Air Nat’l Guard,
126 Fed. Appx. 835, 837 (9th Cir. 2005); Turner v. Dep’t of Educ. Hawaii, 855 F.
Supp. 2d 1155, 1177 (D. Haw. 2012), aff’d, 539 F. App’x 731 (9th Cir. 2013)
(dismissing Chapter 378 claims against the DOE and Superintendent in her official
capacity); Sherez v. State of Haw. Dep’t of Educ., 396 F. Supp. 2d 1138, 1143 (D.
Haw. 2005) (granting Rule 12(c) motion for judgment on the pleadings, because
“the DOE, as an agency of the state, shares in the state’s Eleventh Amendment
immunity”); Office of Hawaiian Affairs v. Dep’t of Educ., 951 F. Supp. 1484, 1492
(D. Haw. 1996) (holding that the DOE is a state agency entitled to Eleventh
Amendment immunity).
Accordingly, the Court grants the DOE’s Motion with respect to Dixon’s
claims based on state law.

7

II.

The Untimely Claims Are Dismissed With Prejudice
The DOE seeks dismissal of Dixon’s claims that it characterizes as based on

discrete acts of discrimination and retaliation occurring prior to March 19,
2012—i.e., those beyond 300 days of Dixon’s January 13, 2013 EEOC Charge of
Discrimination. The DOE accepts, for purposes of this Motion, that Dixon’s claims
relating to the failure of the DOE to sufficiently address Dixon’s assault by a parent
and request for reassignment, which occurred between August and October 2012,
and Dixon’s hostile work environment claim are both timely. 1 See FAC ¶¶ 22–26;
Reply at 4, Dkt. No. 45.
A.

Legal Principles Regarding Timeliness

Title VII requires that a “charge shall be filed by or on behalf of the person
aggrieved within three hundred days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e–5(e)(1); see also EEOC v. Global Horizons, Inc.,
904 F. Supp. 2d 1074, 1090 n.2 (D. Haw. 2012) (“The 300-day limitations period is
applicable in this case because Title VII extends the 180-day period to 300 days if

1

To be clear, in spite of Dixon’s arguments to the contrary, the DOE does not challenge as
untimely Dixon’s Count I hostile work environment claim. See Mem. in Supp. at 7, Dkt. No.
35-1. Generally, for hostile work environment claims of a continuing nature, the aggrieved
employee must allege that “at least one discrete act had occurred within the 300-day time frame.”
Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 892 (9th Cir. 2004) (citing Nat’l R.R. Passenger v.
Morgan, 536 U.S. 101, 114 (2002)).
8

filed in a ‘worksharing’ jurisdiction. . . . Hawaii and California are both
‘worksharing’ states . . . ”) (citations omitted).
In determining whether a claim is timely, courts look to whether it is based on
a discrete act of discrimination or retaliation. A discrete act consists of an unlawful
practice that “occurred” on the day it “happened,” which includes, for example,
“termination, failure to promote, denial of transfer, or refusal to hire.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 111, 114 (2002). Morgan explains that
a plaintiff may assert a claim for a discrete act only if the plaintiff timely filed an
EEOC charge for that particular act:
[D]iscrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore, must be filed
within the [relevant statutory] time period after the discrete
discriminatory act occurred. The existence of past acts and the
employee’s prior knowledge of their occurrence, however, does
not bar employees from filing charges about related discrete acts
so long as the acts are independently discriminatory and charges
addressing those acts are themselves timely filed. Nor does the
statute bar an employee from using the prior acts as background
evidence in support of a timely claim.
Id. at 113.
By contrast, a hostile work environment claim is “different in kind” because it
is “based on the cumulative effect of individual acts,” “occur[ring] over a series of
days or perhaps years and, in direct contrast to discrete acts, a single act of

9

harassment may not be actionable on its own.” Id. (citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). Because hostile work environment claims develop
over time, and are not based on acts that happen on a particular day as with claims
based on discrete acts, the events making up hostile work environment claims are
not limited to those within the limitations filing period. Id. at 113–14.
With this backdrop, the Court turns to the application of the 300-day
limitations period to the allegations in Dixon’s FAC.
B.

Claims Based Upon Discrete Acts Occurring Before March 19,
2012 Are Time-Barred

The FAC alleges that in January 2008, Armstrong forced Dixon and another
African American female to share the same office until approximately June 2009.
FAC ¶¶ 7, 12–13. In November 2009, Armstrong relocated Dixon’s office from a
portable classroom to a converted library storage closet. FAC ¶¶ 17–18. Dixon
contends that from September 2009 to January 2012, she was not allowed to attend
training in connection with IPES’ transition to becoming an International
Baccalaureate school—but does not specify how many times she requested and was
denied training opportunities that Barry, the white male counselor, was permitted to
attend. FAC ¶¶ 14–15. Dixon also claims that she was required to arrange for a
substitute when she was absent, whereas Barry was not, although she does not allege
any specific dates or the frequency of such occurrences. FAC ¶¶ 19–20.

10

According to Dixon, “[o]n many occasions [she] attempted to address her concerns
about the disparate treatment to which she had been subject but no changes were
made.” Again, no dates are provided in the FAC. FAC ¶ 21.
The parties dispute when these particular claims accrued for purposes of the
limitations period. Dixon argues that all of these claims are timely because none of
them are “comprise[d] of mere discreet [sic] acts; rather, they involve policy
decisions as applied only to Plaintiff,” and therefore, “were part of a series of
separate acts that collectively constituted one ‘unlawful employment action.’”
Mem. in Opp’n at 8–9 (quoting Morgan, 536 U.S. at 117). The DOE disagrees with
this characterization of the nature of the conduct underlying Dixon’s disparate
treatment and retaliation claims—in contrast to Dixon’s hostile work environment
cause of action, which they do not challenge as untimely.
The Court begins with Morgan’s teaching that causes of action that can be
brought individually expire with the applicable limitations period. By contrast, the
hostile work environment theory is designed explicitly to address situations in which
the claim is based on the cumulative effect of multiple acts, rather than on any
particular action taken by the defendant. In such cases, the filing clock does not
begin running with the first act because at that point the plaintiff has no claim; nor
can a claim expire until the full course of conduct is complete. See O’Connor v.
City of Newark, 440 F.3d 125, 128–29 (3d Cir. 2006) (citing Morgan, 536 U.S. at
11

117–18). The DOE argues, and the Court agrees, that any claims relating to
Dixon’s office space assignments, denials of training, and substitute teacher
requirements, are based on discrete acts. Insofar as these acts occurred outside of
the 300-day filing window, they are untimely.
In opposition, Dixon apparently argues that the untimely events described
above are all part of her hostile work environment claims, and that the untimely
events are therefore properly part of her claims because at least one act constituting
her hostile work environment claims occurred within 300 days of filing her Charge
with EEOC. See Mem. in Opp’n at 8–9. But Dixon’s characterization ignores
Morgan’s teaching that discrete acts “are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.” 536 U.S. at 113. Rather,
“[e]ach discrete discriminatory act starts a new clock for filing charges alleging that
act,” id., meaning that a plaintiff must file charges relating to each discrete
discriminatory act within the limitations period provided.2 Although Dixon argues

2

On this point, Porter v. California Department of Corrections, 419 F.3d 885 (9th Cir. 2005), is
instructive. In determining the timeliness of plaintiff’s hostile work environment claim
containing allegations of both discrete acts and non-discrete acts, Porter sorted the plaintiff’s
allegations between discrete acts and non-discrete acts, and then considered only the non-discrete
acts in determining whether the claim was timely. Id. at 893–94. Porter reasoned as follows—
[W]e refuse to mix recent discrete acts like tinder with the planks of ancient sexual
advances and then, regardless of whatever it was that set the spark in the furnace,
call the fire that ignites therefrom a hostile environment. If the flames of an
allegedly hostile environment are to rise to the level of an actionable claim, they
must do so based on the fuel of timely non-discrete acts.
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that the claims against the DOE constitute a pattern or practice and were “policy
decisions,” these alleged violations are not a series of acts that together amount to a
single pattern or practice.3

Id. at 893. Thus, under Porter, allegations of discrete acts are separate from the allegations of
non-discrete acts making up a hostile work environment claim, and merely asserting otherwise
untimely discrete acts as part of a hostile work environment claim does not make them timely.
See also Rekow v. Sebelius, 2011 WL 1791272, at *3 (D. Ariz. May 11, 2011) (collecting cases
standing for the proposition that “[b]ecause the Supreme Court has explicitly differentiated
between discrete employment acts and a hostile work environment, many courts have concluded
that a discrete act cannot be part of a hostile work environment claim and instead constitutes a
separate unlawful employment practice” (quotations omitted)); Montoya v. Regents of Univ. of
Cal., 2010 WL 2731767, at *7 (S.D. Cal. July 9, 2010) (describing that under Porter “the only way
to state a hostile environment claim under current Ninth Circuit law is to allege a timely
non-discrete act”).
3
The Court does not construe Plaintiff’s allegations as asserting a true “pattern and practice claim”
under Title VII. For one, as discussed herein, Dixon’s FAC plainly describes each incident as a
separate discrete act of discrimination or retaliation. Second, she has not alleged that any other
employees were discriminated or retaliated against, and has not provided any anecdotal or
statistical evidence indicating a pattern or practice of discrimination based on race and/or sex.
See Obrey v. Johnson, 400 F.3d 691, 694, 698 (9th Cir. 2005); Wood v. Univ. Physicians
Healthcare, 2014 WL 3721207, at *6 (D. Ariz. July 28, 2014), aff’d, 657 F. App’x 643 (9th Cir.
2016) (“While Plaintiff uses ‘pattern of discrimination’ as a conclusory label, ‘discrete
discriminatory acts will not create a pattern of discrimination without more; pattern-or-practice
claims cannot be based on ‘sporadic discriminatory acts’ but rather must be based on
‘discriminatory conduct that is widespread.’”) (quoting The Comm. Concerning Cmty.
Improvement v. City of Modesto, 583 F.3d 690, 701 (9th Cir. 2009)). Finally, the Court observes
that most pattern or practice claims are brought either by the EEOC or, if private, as class
actions—indeed, certain other circuits have explicitly rejected pattern or practice claims brought
by individual private litigants. See, e.g., Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575
(6th Cir. 2004) (“We therefore hold that the pattern-or-practice method of proving discrimination
is not available to individual plaintiffs.”); see also Daniels v. United Parcel Serv., Inc., 701 F.3d
620, 632 (10th Cir. 2012) (citing cases); Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955,
967 n.24 (11th Cir. 2008); Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 355–56 (5th Cir.
2001); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760–62 (4th Cir. 1998), vacated on other
grounds, 527 U.S. 1031 (1999); Babrocky v. Jewel Food Co., 773 F.2d 857, 866–67 n.6 (7th Cir.
1985). As such, the Court will not construe Plaintiff’s reference to “pattern and practice” as
evincing an actual claim under that scheme. Instead, the Court reads Dixon’s assertions as either
merely reinforcing her attempt to characterize her claims as timely hostile work environment
claims or simply erroneous.
13

Specifically, Dixon’s allegations that she was assigned to share an office,
beginning in January 2008, and then moved out of this office into a converted closet
in November 2009—are discrete acts—these events are actionable in and of
themselves at the time of the occurrence. She argues, erroneously, that her sharedoffice space was “an indefinite assignment with which Plaintiff had to deal every
single day and which interfered with her ability to do her job as a School Counselor
working in the same space as the SBBH who dealt with severely disturbed children.”
Mem. in Opp’n at 8. Likewise, she claims that her converted office space
“assignment was not for one day or one week; it was a permanent assignment[.]”
Mem. in Opp’n at 8-9. Dixon’s argument misses the mark. Although she may
have continued to feel the impact or the effects of the office assignment each day of
her employment, a discrimination claim does not accrue when the plaintiff feels the
full effects of the discrimination, but when the discrete act occurs. See Green v.
Brennan, 136 S. Ct. 1769, 1780 (2016) (confirming, in the employment law context,
“the standard rule that a limitations period begins to run after a claim accrues, not
after an inevitable consequence of that claim”); Cherosky v. Henderson, 330 F.3d
1243, 1248 (9th Cir. 2003) (Although “the effect of the employer’s rejection [of an
employee’s proposed accommodation] continues to be felt by the employee for as
long as he remains employed, that continued effect is similar to the continued effect
of being denied a promotion or denied a transfer, denials that Morgan offered as
14

examples of a discrete act.”) (citation and quotation omitted). The DOE’s decisions
to assign Dixon to the designated office spaces were each discrete acts giving rise to
a separate cause of action.4
Similarly, Dixon’s claims that she was denied training opportunities afforded
to Barry in 2009 and 2012 are discrete acts, each separately actionable, despite the
fact that she may have felt the continued effects of the denials indefinitely. Once
again, a discrimination claim does not accrue each time a plaintiff feels the effects of
the discrimination, but when the underlying discriminatory act occurs. See Daniels
v. United Parcel Serv., Inc., 701 F.3d 620, 634 (10th Cir. 2012) (noting that a claim
accrues upon the occurrence of the act and rejecting similar denial-of-training claim
as untimely); Lewis v. City of Chicago, 560 U.S. 205 (2010) (affirming the general
rule that the present effects of past actions cannot lead to Title VII liability for claims

4

See, e.g., Vives v. Children’s Hosp., Inc., 2013 WL 5607215, at *3 (E.D. La. Oct. 14, 2013)
(granting summary judgment to employer where employee “received the space in 2006 and knew
of [co-worker’s] apparently larger space at that time,” but she “filled out her EEOC intake
questionnaire and charge on November 30, 2009, meaning that only claims relating [to] discrete
acts which occurred on or after February 3, 2009, are timely brought,” and plaintiff’s “claim of
discriminatory office space assignment is therefore time barred”); Block v. Solis, 2010 WL
2079688, at *11 (W.D. Wash. May 20, 2010) aff’d, 436 Fed. Appx. 777 (9th Cir. 2011) (“Ms.
Block’s transfer to the fifth floor and the DOL’s denial of her request for accommodation
constitute discrete acts that must be separately exhausted.”); Bernstein v. City of Atlantic City,
2011 WL 2559369, at *5 (D.N.J. June 27, 2011) (finding that “removal of [plaintiff’s] privileges
regarding the city vehicle and removal from her office to a cubicle[] are discrete acts”); Sgro v.
Bloomberg L.P., 2008 WL 918491, at *5–*6 (D.N.J. Mar. 31, 2008), aff’d in part, rev’d in part,
331 Fed. Appx. 932 (3rd Cir. 2009) (noting that an office move to an undesirable location is a
discrete act and not subject to the continuing violation doctrine); Fol v. City of New York, 2003 WL
21556938, at *4 (S.D.N.Y. Jul. 9, 2003) (determining that rejection of an employee’s request for a
more ergonomic work station is a discrete act).
15

requiring discriminatory intent, including disparate treatment claims). Indeed, one
of the claims Morgan labeled a discrete act was just such a denial-of-training claim.
See 536 U.S. at 114–15; see also Lyons v. England, 307 F.3d 1092, 1107 n.8 (9th
Cir. 2002) (listing an employer’s failure-to-train as a discrete act); Phan v.
Employment Dev. Dep’t, 2017 WL 3116826, at *4 (E.D. Cal. July 21, 2017)
(dismissing as untimely claim that defendant’s failure to train and certify was an
ongoing violation, where plaintiff was the only employee who lacked foreign
language certification, which meant she received less pay, holding that plaintiff
“cannot merely repackage a discrete act as ongoing to circumvent the Supreme
Court’s teaching in Morgan”). Thus, it is irrelevant that Dixon did not experience
the full effects of her denials of International Baccalaureate implementation training
until sometime later or even that she continues to feel the effects to the present.
Dixon was required to file an EEOC Charge within 300 days of each denial of
training.
The same is true with respect to the unspecified dates on which Dixon was
absent and required to obtain a substitute teacher. Each of these events “constitutes
a separate actionable unlawful employment practice” such that Dixon was required
to assert them in a timely EEOC Charge. See Morgan, 536 U.S. at 114.
In short, Dixon’s disparate treatment and retaliation claims are based upon
discrete acts. Any claims based on acts that accrued before March 19, 2012—300
16

days prior to the filing of Dixon’s Charge on January 13, 2013—are time-barred.
Because amendment with respect to the time-barred discrete acts would be futile,
dismissal of these claims is with prejudice. Defendant’s Motion is therefore
granted to the extent it seeks dismissal of the untimely claims for discrimination and
retaliation based on discrete acts occurring outside of the 300-day window.
III.

The FAC Fails To State A Plausible Disparate Treatment Claim
With respect to Dixon’s timely discrimination claims, the DOE argues they

still fall short as a matter of law. For instance, because Dixon neither suffered an
adverse employment action nor alleged that any similarly situated employee outside
of her protected class was treated more favorably, the DOE asserts that her disparate
treatment claim fails. The Court agrees.
Pursuant to Rule 12(c), the Court construes the FAC’s factual allegations—as
to Dixon’s timely claims relating to the August 2012 assault by a parent and Reed’s
October 12, 2012 response to Dixon’s complaint—in the light most favorable to
Dixon. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Dixon asserts that,
in August 2012, she was verbally and physically assaulted by a parent of a student,
and she later filed a police report regarding the incident. FAC ¶ 22. However,
when she reported the assault to Principal Reed, no action was taken. FAC ¶ 23.
On “more than one occasion,” Dixon requested that Barry “be assigned to work with
the student whose parent assaulted” her, FAC ¶ 24, but “Reed refused to reassign the
17

student and expected [Dixon] to continue working with the student and the parent.”
FAC ¶ 25. On October 10, 2012, Reed told Dixon that Barry “would not be
assigned to work with the student and parent who assaulted [her] because [he] ‘does
not do well with change.’” FAC ¶ 26.
Because she offers no direct evidence of discrimination, the Court focuses its
inquiry on the elements of a prima facie case of discrimination, namely: (1) that
Dixon belongs to a class of protected persons; (2) that she was qualified for her
position and performed her job satisfactorily; (3) that she suffered an adverse
employment action; and (4) that the DOE treated her differently than a similarly
situated employee who does not belong to the same protected class. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Cornwell v. Electra Cent. Credit
Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (McDonnell Douglas framework applies

18

to Title VII claims). 5 As the DOE points to the third and fourth elements as missing
from Dixon’s disparate treatment claim, the Court addresses each in turn. 6
An adverse employment action in the context of a Title VII disparate
treatment claim “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 brackets omitted). Dixon’s
allegations that Reed (1) took no action when Dixon reported the August 2012
assault by a parent; and (2) would not reassign another counselor to work with the
student whose parent assaulted Dixon, FAC ¶¶ 22–26, do not provide a sufficient
basis for this Court to infer that Dixon was subject to an adverse employment action.
No allegations in the FAC suggest that the DOE’s actions caused “a material
employment disadvantage, such as a tangible change in duties, working conditions
or pay.” Delacruz v. Tripler Army Med., 507 F. Supp. 2d 1117, 1123 (D. Haw.
2007). That is, Dixon offers no factual details supporting a significant change in

5

The Court may look to these elements to determine whether Plaintiff has asserted a plausible
claim for relief as required by Iqbal and Twombly, even though “a plaintiff need not plead facts
constitut[ing] all elements of a prima facie employment discrimination case in order to survive a
motion to dismiss.” Fresquez v. Cty. of Stanislaus, 2014 WL 1922560, at *2 (E.D. Cal. May 14,
2014); see also Klingman v. Cty. of Maui, 2016 WL 6996986, at *4 (D. Haw. Nov. 29, 2016)
(noting that, on a Rule 12(b)(6) motion to dismiss, a plaintiff need not establish a prima facie Title
VII claim, but adhering to the required elements of a claim in order to evaluate plausibility under
Iqbal and Twombly).
6
Nor does Dixon allege that she was qualified for her position and performed her job satisfactorily,
the second element of a prima facie case. While, as noted above, Dixon is not strictly bound by
the elements of a prima facie case, her failure to allege this element is only one of several identified
deficiencies.
19

employment status, such as “hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). In fact, it
is not clear that Dixon alleges an employment action at all. See Moran v. Selig, 447
F.3d 748, 755 (9th Cir. 2006) (holding that plaintiffs failed to satisfy third prong of
prima facie case because “the fact that the appellants do not receive the same or
substantially similar benefits . . . cannot be considered an ‘adverse employment
action’ because the provision of these benefits by the [employer] is not an
‘employment action’ at all”). “A tangible employment action in most cases inflicts
direct economic harm.” Id. at 762; see also Kortan v. Cal. Youth Auth., 217 F.3d
1104, 1113 (9th Cir. 2000) (no adverse employment action where the plaintiff “was
not demoted, was not stripped of work responsibilities, was not handed different or
more burdensome work responsibilities, was not fired or suspended, was not denied
any raises, and was not reduced in salary or in any other benefit.”). Here, no such
economic harm is alleged to have occurred as a result of the two aforementioned
acts. The allegations fail to rise to the level of tangible harm attributable to the
DOE.
As to the fourth element, although Dixon alleges that she was treated less
favorably than her white, male counterpart, the FAC fails to provide facts that the
two were actually similarly situated. Employees “are similarly situated when they
20

have similar jobs and display similar conduct.” Vasquez v. Cty. of Los Angeles, 349
F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004) (emphasis added). Here,
the FAC is devoid of any facts that Dixon and Barry were similarly situated—that
they performed materially similar roles, displayed similar conduct or were involved
in comparable incidents. See Moran, 447 F.3d at 755 (“the individuals seeking
relief must demonstrate, at the least, that they are similarly situated to those
employees in all material respects”); cf. Day v. Sears Holdings Corp., 930 F. Supp.
2d 1146, 1163 (C.D. Cal. 2013) (“Courts ‘require that the quantity and quality of the
comparator’s [conduct or] misconduct be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.’”) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
Dixon offers no facts that similarly situated employees outside her protected
class were treated more favorably. For example, there are no allegations of
similarly situated employees reporting any assaults by a parent, where Reed or other
DOE decisionmakers either (1) took no action, or (2) rejected a request to limit
contact between the employee and the parent (or related student). Nor does Dixon
assert that the DOE accommodated any reassignment request from Barry, regardless
of the basis. As a result, Dixon fails to sufficiently allege that she and Barry are
similarly situated in all material respects. The bare legal assertions in the FAC are
inadequate. See, e.g., Mahoe v. Operating Engineers Local Union No. 3 of the Int’l
21

Union of Operating Engineers, AFL-CIO, 2013 WL 5447261, at *5 (D. Haw. Sept.
27, 2013) (dismissing disparate treatment claim where the complaint “lack[ed]
sufficient information to show that the position of Recording Correspondent
Secretary,” the position of an employee who did not suffer the adverse employment
decision suffered by plaintiff, “was similar to [plaintiff’s] position of Treasurer”).
Under these circumstances, the Court finds that Plaintiff has failed to
“nudge[] [her] claims across the line from conceivable to plausible.” Twombly, 534
U.S. at 570. Even “accepting all factual allegations as true, there is no material fact
in dispute, and the [DOE] is entitled to judgment as a matter of law.” Chavez v.
United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Fleming, 581 F.3d at
925). Because amendment of Dixon’s disparate treatment claim may be possible,
the Court dismisses the claim without prejudice and with leave to amend.
IV.

The FAC Fails To State A Hostile Work Environment Claim
In addition to alleging that the DOE “treated Plaintiff differently as compared

to similarly situated employees who are not of the same race, color, or sex,” FAC
¶ 31, Count I also alleges that the “acts of Defendant’s supervisory and
administrative employees against Plaintiff created a hostile and offensive working
environment.” FAC ¶ 32. Dixon further alleges in Count II that “retaliation by
Defendant against her reflects a pattern and practice of illegal behavior.” FAC ¶39.
Because the facts alleged do not support a hostile work environment claim as a
22

matter of law, based on either discrimination or retaliation, 7 the DOE’s Motion is
granted with respect to this cause of action.
A hostile work environment is one that is permeated with discriminatory
intimidation, ridicule, and insult that is “sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank
FSB v. Vinson, 477 U.S. 57, 65–67 (1986)). “To prevail on a hostile workplace
claim premised on either race or sex, a plaintiff must show: (1) that he [or she] was
subjected to verbal or physical conduct of a racial or sexual nature; (2) that the
conduct was unwelcome; and (3) that the conduct was sufficiently severe or
pervasive to alter the conditions of the plaintiff’s employment and create an abusive
work environment.” Vasquez, 349 F.3d at 642.
In considering whether the discriminatory conduct was “severe or pervasive”
for purposes of Title VII, the Court looks 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.” Kortan v. Cal.
Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (quoting Faragher v. City of Boca

7

A hostile work environment is cognizable under the anti-retaliation provisions of Title VII. See
Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
23

Raton, 524 U.S. 775, 787–88 (1998)). The Supreme Court has cautioned that “Title
VII [is] not . . . a general civility code,” and therefore, “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Faragher,
524 U.S. at 788 (citations and quotations omitted).
Assuming the truth of the allegations in the FAC, and looking at all the
circumstances—including the infrequency of the allegedly discriminatory conduct
in 2008, 2009, and 2012; the lack of severity; the absence of physically threatening
or humiliating conduct on the part of DOE officials; and the lack of any facts
demonstrating that the DOE’s actions unreasonably interfered with an Dixon’s work
performance, see Kortan, 217 F.3d at 1110—it is clear that the alleged conduct was
neither severe nor pervasive.
Dixon complains that from January 2008 until June 2009, she was forced to
share an office, despite the fact that the SBBH worked with students with substantial
emotional needs. FAC ¶¶ 7, 12–13. In November 2009, Armstrong relocated
Dixon’s office from a portable classroom to a converted library storage closet, which
was approximately one-fifth the size of Barry’s office, also located in the library.
FAC ¶¶ 17–18. Dixon does not explain how these office assignments amount to
conduct that was objectively severe or pervasive, or even how such assignments
created an abusive working environment.
24

Dixon also alleges that she was treated differently and denied training
opportunities afforded to the Caucasian male school counselor and—without
providing specific dates or incidents—she claims that from September 2009 to
January 2012, she was not allowed to attend training in connection with IPES’
transition to becoming an International Baccalaureate school. FAC ¶ 14. She
does allege that Barry attended such training “in 2009 and 2012”—in other words,
apparently on two occasions three years apart. FAC ¶ 15. In addition to
performing her own duties as a school counselor, Dixon obtusely alleges that she
was also expected to “provide assistance” to others at IPES, whereas Barry was not,
FAC ¶ 16, and that she was required to have a substitute when she was absent,
whereas Barry was not. FAC ¶¶ 19–20. Again, however, Dixon does not allege
the frequency of this conduct or detail how it altered the conditions of her
employment so as to create an abusive working environment.
According to Dixon, “[o]n many occasions [she] attempted to address her
concerns about the disparate treatment to which she had been subject but no changes
were made.” FAC ¶ 21. Instead, her concerns were often met with hostility by
Armstrong and Vice Principal Hurley. FAC ¶¶ 8, 21. She does not detail the
frequency or severity of any of the allegedly hostile interactions she endured with
Armstrong or Hurley.

25

When, in August 2012, Dixon was verbally and physically assaulted by a
parent of a student to whom she had been assigned, Dixon reported the assault to
Reed, but no action was taken. FAC ¶¶ 9, 22–23. At some undisclosed date,
Dixon requested that Barry be assigned to work with this student, but Reed refused
to reassign the student, and instead, “expected Plaintiff to continue working with the
student and the parent who assaulted Plaintiff.” FAC ¶ 24–25. Although the
assault described by Dixon at the hands of a parent might well have been a traumatic
and unwelcome event, the DOE’s alleged response to her report and request to
reassign the student, without more, does not amount to the type of “severe and
pervasive” conduct required to plausibly allege a hostile work environment claim
based on race or sex.8 See Brooks v. City of San Mateo, 229 F.3d 917, 924 n.4 (9th
Cir. 2000) (“A case involving a single incident of sexual harassment is obviously

8

Compare Vasquez, 307 F.3d 884, 893 (9th Cir. 2002) (finding no hostile work environment where
employee was told that he had “a typical Hispanic macho attitude,” that he should work in the field
because “Hispanics do good in the field” and where he was yelled at in front of others), and
Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031, 1036 (9th Cir. 1990) (determining no hostile
work environment where employer posted a racially offensive cartoon, made racially offensive
slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, and kept illegal
personnel files on Latino employees), with Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 870
(9th Cir. 2001) (finding hostile work environment where male employee of restaurant was
subjected to a relentless campaign of insults, name-calling, vulgarities, and taunts of “faggot” and
“fucking female whore” by male co-workers and supervisors at least once a week and often several
times a day), and Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998) (finding
hostile work environment where plaintiff’s supervisor made repeated sexual remarks about the
plaintiff over a two-year period, calling her “gorgeous” and “beautiful” rather than her name,
telling her about his sexual fantasies and his desire to have sex with her, commenting on her “ass,”
and asking over a loudspeaker if she needed help changing clothes).
26

distinct from one involving a series of incidents, which the employer knows about
and does nothing to correct. In such circumstances, the non-action by the employer
can fairly be characterized as acquiescence, i.e., having changed the terms and
conditions of employment to include putting up with harassment from other
employees.”) (emphasis added) (citation omitted); Ellison v. Brady, 924 F.2d 872,
877(9th Cir. 1991) (“In determining whether there was a hostile work environment,
it is the conduct of the harasser that must be severe and pervasive.”).
Although Dixon alleges that her complaints to administrators Armstrong and
Hurley were “met with hostility,” such generalized averments are insufficient under
the circumstances here. See George v. Leavitt, 407 F.3d 405, 408, 416 (D.C. Cir.
2005) (claim that coworkers “shouted” at plaintiff on multiple occasions and told her
to “shut up” insufficient to state a claim); Singh v. U.S. House of Representatives,
300 F. Supp. 2d 48, 54 (D.D.C. 2004) (claim that supervisor told plaintiff “to shut up
and sit down” and “scream[ed]” at her insufficient to state a claim).
Viewing the totality of the circumstances alleged, Dixon has not demonstrated
the severity, pervasiveness or abuse required to sustain a hostile work environment
claim. Numerous missing details, and omitted context, materially hamper Dixon’s
ability to plausibly demonstrate such conditions. Moreover, Dixon appears to
“misunderstand[] the nature of a hostile work environment claim.” Grosdidier v.
Chairman, Broadcasting Bd. of Governors, 774 F. Supp. 2d 76, 110 (D.D.C. 2011).
27

As discussed above, simply “[c]obbling together a number of distinct, disparate acts
will not create a hostile work environment, because ‘[d]iscrete acts constituting
discrimination or retaliation claims . . . are different in kind from a hostile work
environment claim.” Id. (alterations in original) (quoting Franklin v. Potter, 600 F.
Supp. 2d 38, 77 (D.D.C. 2009)). This is particularly true where the plaintiff’s
allegations are based on “work-related actions by supervisors” acting within the
scope of their official duties. Id. at 110–11. Indeed, adopting Plaintiff’s apparent
theory of hostile work environment pleading “would transform virtually every
discrimination or retaliation case involving more than one challenged action into a
hostile work environment case.” Fields v. Vilsack, 207 F. Supp. 3d 80, 94–95
(D.D.C. 2016).
Because the FAC does not allege conduct by the DOE that was sufficiently
severe or pervasive to alter the conditions of Dixon’s employment, she fails to state a
Title VII hostile work environment claim based on either discrimination or
retaliation, and the Court grants the DOE’s Motion on this cause of action. Because
amendment of Dixon’s hostile work environment claim may be possible, the Court
dismisses the claim without prejudice and with leave to amend.
V.

The FAC Fails To State A Retaliation Claim
Count II alleges that the DOE “retaliated against Plaintiff for bringing

complaints of harassment and discrimination which were violations of State and
28

Federal law.” FAC ¶ 38. Setting aside the untimely discrete acts dismissed above,
Plaintiff’s retaliation claim is based on the events relating to the August 2012 assault
by the parent, her subsequent report of the assault to Reed, and Reed’s October 12,
2012 rejection of her request to reassign the student to another counselor. For the
reasons that follow, Dixon fails to state a claim for retaliation under Title VII.
An employer may not discriminate against an employee because the
employee has opposed an employment practice made unlawful by Title VII. See 42
U.S.C. § 2000e–3(a) (“It shall be an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he has opposed any
practice [prohibited by Title VII] . . . or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under [Title VII].”); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006) (“Title VII’s anti-retaliation provision forbids employer actions that
discriminate against an employee . . . because he has opposed a practice that Title
VII forbids or has made a charge, testified, assisted, or participated in a Title VII
investigation, proceeding, or hearing.” (citations and quotation signals omitted)).
To maintain a retaliation claim, Dixon must assert (1) that she was engaged in
a protected activity opposing an unlawful employment practice; (2) that she suffered
an adverse employment action, and (3) that there was a causal link between her
activity and the adverse employment action. Freitag v. Ayers, 468 F.3d 528,
29

541(9th Cir. 2006). Plaintiff has failed to meet the requirement that she allege facts
supporting the first two elements.
First, Dixon must have engaged in activity protected by the statutes on which
she relies. Dixon appears to assume that any report of wrongdoing—even
wrongdoing that falls outside of what Title VII prohibits—supports a retaliation
claim under Title VII. She is mistaken. Dixon does not allege that she complained
about discrimination or harassment on the basis of race, color, sex or any other
protected category to anybody prior to filing her EEOC Charge on January 13, 2013.
See Nguyen v. McHugh, 65 F. Supp. 3d 873, 901 (N.D. Cal. 2014) (“A retaliation
claim requires that Plaintiff engaged in protected activity and that she was
‘subsequently’ subjected to an adverse employment action. Plaintiff has not
demonstrated that she engaged in protected activity prior to her EEOC complaint.”)
(citations omitted). Her alleged complaints to Reed from August 2012 through
October 12 related to her work duties—she reported an assault by a parent and Reed
took no action; she then requested the student be reassigned, but Reed denied her
request. None of her complaints to Reed specifically related to her race, color, or
sex. Although she alleges that Reed refused to reassign the student to Barry
because “he does not do well with change,” Dixon does not allege that she
complained to Reed about any conduct on the part of anyone at the DOE that
implicated any protected category. See, e.g., Lalau v. City & Cty. of Honolulu, 938
30

F. Supp. 2d 1000, 1018 (D. Haw. 2013) (noting that the first element of a retaliation
claim may not be satisfied by a complaint regarding behavior unrelated to a
protected category, and that, “even if [plaintiff’s] demotion was retaliatory, the
retaliation allegedly related to his intent to report misconduct unrelated to his
national origin or his age”). Dixon, in other words, fails to set forth facts permitting
the inference or conclusion that the DOE’s alleged retaliation related to her reporting
of or opposition to race, color, or sex discrimination.
Dixon likewise fails to allege an adverse employment action that is
“reasonably likely to deter employees from engaging in protected activity.”
Vasquez, 349 F.3d at 646. Dixon’s choice to go “on leave due to the harassment
and discrimination to which Defendant had subjected her” is not an adverse
employment action in response to any protected activity, based upon the sparse facts
alleged. Nor is Reed’s failure to take action following the August 2012 incident or
her refusal to reassign the student whose parent assaulted Dixon. See, e.g., Daniels
v. United Parcel Serv., Inc., 701 F.3d 620, 640–41 (10th Cir. 2012) (holding that
employer’s failure to investigate an internal complaint of discrimination was not an
adverse employment action, where plaintiff argued that employer’s “failure to
investigate was intended to dissuade her from pursuing the complaint,” but did not
“explain how this failure made it more difficult for her to pursue her claims with the
EEOC or otherwise assert her rights [and] she does not allege she suffered any other
31

harm from [her employer’s] failure to investigate her internal complaint”); Fincher
v. Depository Trust & Clearing Corp., 604 F.3d 712, 721–22 (2d Cir. 2010) (finding
that a failure to investigate a complaint, unless it leads to demonstrable harm, leaves
an employee no worse off than before the complaint was filed); Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (failure to reassign or
“reassignment of job duties is not automatically actionable,” and “[w]hether a
particular reassignment is materially adverse depends upon the circumstances of the
particular case, and should be judged from the perspective of a reasonable person in
the plaintiff’s position, considering all the circumstances”). 9
Simply put, while Plaintiff may have formulaically recited the elements of a
cause of action, the absence of any further specificity morphs her allegations into
bare legal conclusions, and accordingly, she fails to state a plausible retaliation
claim under Title VII. The Court therefore grants the Motion as to Dixon’s
retaliation cause of action. Because amendment of Dixon’s retaliation claim may
be possible, the Court dismisses Count II without prejudice and with leave to amend.

9

The “adverse employment action” element is similarly deficient for the reasons detailed in
Section III., supra. Moreover, even if Plaintiff could show that she suffered an adverse
employment action, she has not plausibly demonstrated a causal link between any adverse
employment action and any prior protected activity. As discussed above, she alleges no protected
activity other than her EEOC Charge, which was not filed until January 2013. See Richards v.
City of Seattle, 342 Fed. Appx. 289 (9th Cir. 2009) (affirming district court’s grant of summary
judgment and noting the plaintiff could not demonstrate a causal nexus where the adverse
employment action took place before the protected activity).
32

VI.

Dixon Is Granted Limited Leave To Amend
Generally, when a complaint is dismissed, “leave to amend shall be freely

given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d
876, 892 (9th Cir. 2010); see Fed. R. Civ. P. 15(a). The Ninth Circuit instructs “that
a district court should grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not possibly be cured by the
allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
(emphasis added) (citations and quotation marks omitted). Leave to amend may be
denied, however, “where the amendment would be futile.” Gardner v. Martino,
563 F.3d 981, 990 (9th Cir. 2009).
Because amendment of the timely claims dismissed by this Order may be
possible, Dixon is granted leave to amend to address the deficiencies identified
herein, by no later than January 5, 2018. Should she choose to amend the dismissed
causes of action, Dixon must allege additional facts as to each element required to
state a claim. The Court cautions Dixon to carefully consider whether she can
plausibly allege facts stating a cognizable claim in any amended complaint she
considers filing with this Court.
CONCLUSION
Based on the foregoing, Defendant’s Motion for Judgment on the Pleadings is
GRANTED. Dkt. No. 35. Dixon is granted leave to file an amended complaint to
33

attempt to cure the deficiencies noted in this Order, as to claims that are not
time-barred, by January 5, 2018.
IT IS SO ORDERED.
DATED: December 5, 2017 at Honolulu, Hawai‘i.

Dixon v. Dep’t of Educ.; Civil No. 16-00110 DKW-KJM; ORDER GRANTING DEFENDANT
STATE OF HAWAII, DEPARTMENT OF EDUCATION’S MOTION FOR JUDGMENT
ON THE PLEADINGS WITH LEAVE TO AMEND

34