Alaska Employment Law

The 9th Circuit has reversed a trial court’s dismissal of a Section 1981 claim by a doctor employed as a “contractor” at a hospital whose staff, he claimed, discriminated against him because of his race, sexual orientation, and perceived disability (erroneous belief he suffered from HIV/AIDS).  The court also reversed rulings on the doctor’s claims under California state discrimination law.

On the § 1981 claim, the panel held:

Johnson’s complaint is rife with allegations that his coworkers harassed him because of his sexual orientation. Nevertheless, because § 1981 creates a cause of action only for those discriminated against on account of their race or ethnicity, such allegations are irrelevant to his claim. See Jones v.Bechtel, 788 F.2d 571, 574 (9th Cir. 1986) (holding that a plaintiff could not assert a § 1981 claim based on gender discrimination).  Still, Johnson’s complaint includes at least three allegations that are relevant to his claim that he was subjected to a hostile work environment because of his race.

First, Johnson’s encounter with Dr. Vlasak, in which Vlasak uttered a racial epithet and moved as if to strike him, was a serious act of discrimination. While “an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that [such] harassment has become a permanent feature of the employment relationship,” Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 1999), Johnson’s complaint contains other relevant allegations. While the complaint does not allege that Johnson was present at the time when the African-American residency candidate’s application was rejected or when the members of the Residency Selection Committee’s offensive remarks were made, discriminatory conduct directed at an individual other than the plaintiff may be relevant to a hostile work environment claim. See, e.g., Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022,1033-34 (9th Cir. 1998). Finally, the allegations of the nurse’s “repeated” requests that Johnson remove trash from the Operating Room, which she viewed as “funny,” are also relevant to his § 1981 claim. We have previously held that a coworker’s use of a “code word or phrase” can, under certain circumstances, contribute to a hostile work environment. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004); see also El-Haken v. BJY Inc., 415 F.3d 1068, 1073-74 (9th Cir. 2005) (same). While we are not obligated to accept every conclusory allegation as true, see, e.g., Sanders v.Brown, 504 F.3d 903, 910 (9th Cir. 2007), we believe the inference that racial animus motivated the nurse’s frequent requests that Johnson perform the tasks of a maintenance man is a reasonable one that we must construe in his favor at the motion to dismiss stage.

Johnson v. Riverside Healthcare System, 2008 WL _______ (9th Cir. July 28, 2008)