NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA BLACKBURN; et al.,

 Plaintiffs - Appellants,

 v.

STATE OF WASHINGTON 

DEPARTMENT OF SOCIAL AND 

HEALTH SERVICES; et al.,

 Defendants - Appellees.

No. 13-35920

D.C. No. 3:11-cv-05385-RBL

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted July 10, 2015

Seattle, Washington

Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,** District 

Judge.

Nine employees of a state mental hospital in Washington (“Plaintiffs”) 

appeal the district court’s grant of summary judgment against them. We affirm.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by 9th Cir. R. 36-3.

** The Honorable Jack Zouhary, District Judge for the U.S. District 

Court for the Northern District of Ohio, sitting by designation.

FILED

JUL 27 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Following entry of summary judgment, Plaintiffs brought suit in state court 

challenging the same race-based staffing practice at issue here. After a bench trial, 

the state court concluded that the duration of the staffing practice was limited to a 

single weekend. We give preclusive effect to that determination. See Christensen 

v. Grant Cty. Hosp. Dist. No. 1, 96 P.3d 957, 960-961 (Wash. 2004).

The individual defendants are entitled to qualified immunity with respect to 

Plaintiffs’ equal protection claims under 42 U.S.C. § 1983 because, at the time they 

acted, it would not have been clear to a reasonable official that avoiding the 

assignment of African-American employees to care for a particular violent patient, 

when done temporarily in response to an imminent safety threat posed by the 

patient to African-American staff, violated the Equal Protection Clause. See 

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083-85 (2011); Johnson v. California, 543 

U.S. 499, 515 (2005); Wittmer v. Peters, 87 F.3d 916, 918-21 (7th Cir. 1996).

1

 

Under the specific facts of this case, Plaintiffs’ claims under 42 U.S.C. §§ 1985 

and 1986 also fail. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Sanchez 

v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir. 1991). 

 

1 To the extent any individual defendant misunderstood whether the patient’s threat 

pertained to all African-American staff instead of one particular staff member, the 

mistake was a reasonable one. See Rudebusch v. Hughes, 313 F.3d 506, 514 (9th 

Cir. 2002) (explaining that the qualified immunity standard “allows ample room 

for reasonable error on the part of the official,” including “mistakes of fact and 

mistakes of law” (brackets omitted)). 
3

Plaintiffs’ Title VII claim based on racial discrimination fails because a de 

minimis change in work assignments does not constitute an adverse employment 

action. See Robino v. Iranon, 145 F.3d 1109, 1110 (9th Cir. 1998). Plaintiffs have 

not demonstrated an entitlement to permanent injunctive relief because they have 

not shown an “immediate threat of substantial injury.” See Midgett v. Tri-Cty. 

Metro. Transp. Dist. of Or., 254 F.3d 846, 850 (9th Cir. 2001).

Plaintiff Blackburn’s retaliation claims under Title VII and the First 

Amendment fail because she did not suffer an adverse employment action. See 

Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112-13 (9th Cir. 2000); Thomas v. 

City of Beaverton, 379 F.3d 802, 807, 811 (9th Cir. 2004). Any challenge to the 

district court’s dismissal of Plaintiffs’ claim for retaliation under 42 U.S.C. § 1981 

is waived due to Plaintiffs’ failure to address that claim in their appellate briefing. 

See, e.g., Dennis v. BEH-1 LLC, 520 F.3d 1066, 1069 (9th Cir. 2008).

Plaintiff Dau’s hostile work environment claim fails because the hospital 

took “remedial measures reasonably calculated to end the harassment.” McGinest 

v. GTE Serv. Corp., 360 F.3d 1103, 1120 (9th Cir. 2004).2

 

2 Plaintiffs’ Motion to Correct the Record is DENIED because the document at 

issue was not before the district court. Defendants’ Motion to Strike is GRANTED 

with respect to the reply brief’s references to depositions in the state-court action, 

but DENIED in all other respects. Defendants’ Motion for Judicial Notice is 

GRANTED with respect to the state-court’s findings of fact and conclusions of law 

and the state-court judgment. We DENY the remainder of Defendants’ request for 

judicial notice, as well as Plaintiffs’ request for judicial notice, because additional 
4

AFFIRMED.

 

state-court documents are not necessary to the determination of this case. See 

Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2

(9th Cir. 2006). Moreover, the documents proffered by plaintiffs are not judicially 

noticeable for the facts asserted therein because those facts are “subject to 

reasonable dispute,” and such disputes were resolved by the state court. See Fed. 

R. Evid. 201. Because we affirm on the merits, Defendants’ Motion to Dismiss the 

Appeal is DENIED as moot.