FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA P. CAMPBELL,

Plaintiff-Appellant,

v.

STATE OF HAWAII DEPARTMENT OF 

EDUCATION; PATRICIA HAMAMOTO, 

Superintendent of Public Schools, 

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.

No. 15-15939

D.C. No.

1:13-cv-00083-

DKW-RLP

OPINION
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 20072 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 burdenshifting 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, MerriamWebster Dictionary, https://www.merriamwebster.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, genderrelated 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 genderspecific 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; DominguezCurry, 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 nonretaliatory 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 nonretaliatory 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, nonretaliatory 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.