                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 16 2018
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEEANN E. ARCHULETA and                          No.   17-15553
MICHAEL B. DICKENS,
                                                 D.C. No.
               Plaintiffs-Appellants,            2:15-cv-01608-MMD-VCF

          v.
                                                 MEMORANDUM*
CORRECTIONS CORPORATION OF
AMERICA, DBA Nevada Southern
Detention Center,

               Defendant-Appellee.

                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                        Argued and Submitted April 11, 2018
                             San Francisco, California

Before: KLEINFELD, W. FLETCHER and FISHER, Circuit Judges.

      Leann Archuleta and Michael Dickens appeal the district court’s judgment

dismissing their claims against the Corrections Corporation of America (CCA).

We have jurisdiction under 28 U.S.C. § 1291; we review de novo a district court’s

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
dismissal for failure to state a claim on the pleadings under Rule 12(b)(6), see

Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017); and we affirm in part and

vacate and remand in part.

      1. Because Archuleta alleges that she opposed conduct that could

reasonably be perceived as violating Title VII, she states a claim for retaliation.

See 42 U.S.C. § 2000e-3(a); Crawford v. Metro. Gov’t of Nashville & Davidson

Cty., Tenn., 555 U.S. 271, 276 (2009). Archuleta did not characterize the conduct

as sexual harassment, but she clearly conveyed her discomfort with it. See

Crawford, 555 U.S. at 276 (holding “an ostensibly disapproving account of

sexually obnoxious behavior” was sufficient to convey opposition). Although

Archuleta opposed an isolated incident of sexual harassment, others at the prison –

including the warden – viewed the prison executive’s conduct as sexual harassment

warranting an investigation and discipline. See EEOC v. Go Daddy Software, Inc.,

581 F.3d 951, 963 (9th Cir. 2009) (holding a complaint about an isolated incident

can constitute protected activity if “a reasonable person would believe that the

isolated incident violated Title VII”); cf. Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 270 (2001).

      2. Dickens’ support for Archuleta in the sexual harassment investigation

similarly qualifies as opposition to conduct prohibited by Title VII. Dickens


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objected when he was told to report Archuleta for her failure to report the sexual

harassment in the first instance. He was terminated shortly thereafter. See

Crawford, 555 U.S. at 276.

      3. Archuleta fails to state a claim for retaliation based on her filing of a

workers’ compensation claim. See Bigelow v. Bullard, 901 P.2d 630, 632 (Nev.

1995). Archuleta lays out a chronology of her workers’ compensation claim and

subsequent discipline and termination, but that chronology alone is not sufficient to

support an inference of retaliatory intent where her termination occurred nine

months after she filed her claim. Our holding in Allen v. Iranon, 283 F.3d 1070,

1078 (9th Cir. 2002), is not to the contrary; there, an 11-month gap was held to

support an inference of retaliation, but the temporal proximity was not the only

evidence to support retaliatory intent.

      4. Dickens fails to state a claim for inducement under Nevada law. See

Nev. Rev. Stat. § 613.010. The CCA regional director’s guarantee that “nothing

[would] happen to [Dickens]” did not misrepresent any condition of employment

covered by § 613.010, and is therefore not actionable.

      5. Dickens states a claim for race discrimination. He alleges the warden had

a pattern or practice of discriminating against white male subordinates, and CCA’s

regional director, Chris Martin, acknowledged the warden’s history with such


                                           3
subordinates when he encouraged Dickens to transfer to Nevada. Dickens also

alleges he had no disciplinary incidents before or after the investigation of

Archuleta, yet both employees were terminated the same day. Dickens was not

required to allege similarly situated employees outside his race were treated more

favorably; he had only to plead allegations that, if proven, would “establish that

[CCA] had a discriminatory intent or motive for taking a job-related action.”

Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (citation omitted).

He has done so.

      6. Plaintiffs fail to state a claim for negligent hiring or supervision of either

the warden or the investigator. As to negligent hiring, plaintiffs do not allege CCA

failed to conduct reasonable background checks of the warden or the investigator

to ensure neither had “dangerous propensities.” Hall v. SSF, Inc., 930 P.2d 94, 98

(Nev. 1996).

      As to negligent supervision, even assuming the investigator’s public

interview location and the warden’s noncompliance with the company “integrity




                                           4
policy” constitute actionable misconduct, plaintiffs do not allege CCA breached its

duty to use “reasonable care” in training or supervising either employee. See id. at

99.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, VACATED IN PART and REMANDED.




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