Raad v. Fairbanks North Star Borough School Dist.

• Decision Date: 27 March 2003
• Docket Number: No. 00-35999.,00-35999.
• Citation: 323 F.3d 1185
• Parties: Nada RAAD, Plaintiff-Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.3d 1185

Nada RAAD, Plaintiff-Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Defendant-Appellee.

No. 00-35999.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2002.

Filed March 27, 2003.

As Amended May 8, 2003.

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Robert A. Sparks, Law Office of Robert A. Sparks, Fairbanks, AK, for the plaintiff-appellant.

Peter C. Partnow, Foster, Pepper, Rubini & Reeves LLC, Anchorage, AK, for the defendant-appellee.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, Chief Judge, Presiding. D.C. No. CV-97-00068-F-HRH.

Before: B. FLETCHER, ALARCÓN, and GRABER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Plaintiff-Appellant Nada Raad, an American citizen of Lebanese descent and Muslim faith, appeals the district court's order of summary judgment against her claims of workplace discrimination on the basis of national origin and religion, and her claims of retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Raad's allegations of discrimination stem from her employment as a substitute teacher by the Fairbanks North Star Borough School District (the "District"). Raad alleges that the District subjected her to disparate treatment because of her national origin when it refused to hire her as a permanent teacher during three consecutive hiring cycles, beginning in 1991. After her third rejection in August 1993, Raad made a statement that District administrative staff construed as a bomb threat and reported to the police. Raad denies having made such a threat, and instead alleges that the report to the police was fraudulently made because Raad is a Muslim of Lebanese descent. As a result of the perceived bomb threat, Raad was suspended from teaching within the District for one year. Raad also claims that the initial rejection of her application for permanent employment in 1993, as well as her discipline for allegedly making a bomb threat, constituted acts of retaliation for protected activity.

The district court granted summary judgment in favor of the District on all of Raad's claims. Because we conclude that the district court failed to consider the evidence in the record in the light most favorable to Raad, the nonmoving party, and because, when viewed in that light, the record reflects a genuine dispute of material fact, we reverse the district court's decision as to all of Raad's claims on appeal except one, and remand this case for further proceedings.¹

I. FACTS AND PROCEDURAL HISTORY²

Born and raised in Beirut, Lebanon, Nada Raad obtained undergraduate and graduate degrees from the University of Illinois Urbana-Champaign. After returning to Beirut, Raad accepted a position with the American University of Beirut, preparing lectures and exhibits in connection with its natural history museum. Raad immigrated to Alaska in 1989, when her husband accepted a teaching position with the University of Alaska, Fairbanks ("UAF"), and obtained her certification to teach in Alaska public schools through the UAF teaching program. She maintained excellent academic records in both her graduate study and her teaching preparation at UAF, and graduated from the UAF program with outstanding faculty recommendations.

Raad made her first application for full-time teaching status in the District in January 1991. She received a "preliminary personal interview" on March 6, 1991, with area high school principal Andre Layral and was awarded the highest possible rating by the team of principals who interviewed her (i.e., 3 out of 3 points). Nonetheless, in his evaluation of Raad's interview, Layral noted her accent as a potential weakness in her candidacy, observing that Raad's "accent and soft spokenness may be a detractor to some instructional effectiveness. This could be addressed if hired." Layral's statement, which remained in Raad's personnel file throughout her employment with the District, marks the first in a series of statements over the next two years made by District officials referring to Raad's accent as an obstacle to her full-time employment as a teacher in math and science. However, there is no evidence in the summary judgment record that Raad's accent ever interfered with her performance while she served either as a substitute teacher or as a temporary full-time teacher in 1992-93. To the contrary, Raad's recommenders, both within the District and at UAF, consistently complimented her classroom performance, including her success at establishing "an excellent rapport with her students."

During the 1991-92 school year, Raad received numerous requests from full-time District teachers that she serve as a substitute teacher in their classes when they were absent. Raad requested and received from former Tanana Middle School principal Deborah Kerr-Carpenter an unqualified recommendation that she be retained in a full-time position. However, in July 1992, District staff told Raad that she had not been placed in the hiring pool for the 1992-93 school year because Kerr-Carpenter's recommendation had not been submitted on the proper form. Raad obtained Kerr-Carpenter's recommendation on the proper administrative form on July 21, 1992, but was not informed that she had been placed in the hiring pool until the end of August. Meanwhile, in an interview report dated August 18, 1992, Kerr-Carpenter noted as a weakness Raad's "[a]rticulation of English — needs to talk slower/enunciate words better." Kerr-Carpenter reiterated this rationale in her deposition testimony, where she admitted that she did not hire Raad for a full-time position in 1992 because of "her articulation and enunciation of words."

Between the time when Raad resubmitted Kerr-Carpenter's recommendation and the time when the District informed her that she was under consideration for a 1992-93 position, the District filled four full-time teaching positions in math and science. During August 1992, Raad learned that a specific biology position had become open at Tanana Middle School. Raad requested to be considered for that position. Although Raad produced evidence that she was highly qualified, she was not hired to fill the position.

As a result of her inability to secure a permanent position, Raad met with District EEO officer Charles Moore on September 23, 1992. Raad filed a complaint of unlawful discrimination based on national origin and religion. Two days later, during a follow-up meeting, Moore informed Raad that her credentials were outstanding and that the reason why she had not been hired for the Tanana position was that Tanana needed someone with credentials to double as a ski coach. Because Raad frequently substituted at Tanana, Raad knew that Tanana already had two ski coaches; she therefore suspected that this justification was false. Moore assured Raad that he would advise Jerry Hartsock, principal at Lathrop High School, to offer her a full-time position there beginning in the 1993-94 school year.

In March 1993, Moore discouraged Raad from accepting a long-term substitute position at Lathrop because she was going to be hired for a full-time, temporary position at Ryan Middle School, replacing a teacher who was leaving mid-year. Raad accepted and completed this temporary assignment. In August 1993, Raad was interviewed for the full-time science position at Lathrop.³ Despite Moore's initial assurance that she would receive the position, Raad was later informed by Hartsock that she had been rejected. When confronted, Moore denied that he had made any commitment to Raad that she would receive this job. He then informed Raad that the District declined to hire her because of her accent.

Also in early August 1993, Raad learned that Kerr-Carpenter had hired Pat Cromer to fill a health teaching position at Tanana, without any competitive interview, in September 1992. Cromer and Raad had both applied for the Tanana 1992 science position, and Raad surmised that Cromer had been hired for the health position following Raad's discrimination complaint to Moore. This chronology was corroborated by Kerr-Carpenter herself. Moore testified in his deposition that he knew of no set of circumstances in which a principal would be empowered to offer a position of this kind without engaging in competitive interviews.

On August 13, 1993, after hearing that she had been rejected for the Lathrop position, Raad insisted on speaking with Superintendent Cross. She went to his office in the District administration building, but was not permitted to meet with him. Raad said that she needed to speak with Cross about "a matter of life or death," but was told that Cross simply would not meet with an unsuccessful job applicant. Raad then made two statements in front of Cross's administrative staff, Pam Hallberg and Lynda Sather, that have become central to this litigation. First, Raad alleges that, in a state of extreme frustration, she said that she was very angry and did not want to "blow up." Hallberg and Sather apparently interpreted this as a threat to "blow up the building" if Raad were not allowed to speak with Cross. Raad, who had made arrangements to see her attorney later that day, then went to Moore's office to speak with him about the matter. The record on summary judgment reflects that Raad was not yelling or in any way acting out of control either at this time or during her initial encounter with Cross's staff. Raad made a statement to Moore to the effect that she did not want to see anyone "get hurt," by which she meant — and Moore understood — legally hurt by the filing of a civil complaint. She allegedly made this statement, while sitting with her arms folded and crying, after Moore informed her that the police had been called.

Hallberg and Sather denied knowing that Raad was Lebanese, but the police log report documenting the request for assistance at the administration building due...