On Rehearing, Court Reverses and Holds that Race Harassment Claims Were Sufficient to State a Section 1981 Claim

An African-American physician, Christopher Johnson, sued his employer for racial harassment under 42 U.S.C. ? 1981 and California state law. He alleged ?one particularly serious incident? in which a fellow physician ?used a racial epithet and moved as if to strike Johnson.?? ?As further allegations, Johnson contended that a particular nurse frequently asked him to remove trash from the operating room, which she viewed as ?funny,? and she refused to provide him with necessary surgical equipment. ?He alleged that when he was bitten by a security dog in the ER the handler told him not to complain because the dog was more popular with the nurses than Johnson.? ?Finally, Johnson asserted that the residency selection committee explicitly refused to consider another African-American candidate because of his race. The trial court dismissed his harassment complaint for failure to state a claim.?? Initially, the Ninth Circuit? affirmed? finding? that? only? one? of? the alleged incidents could be deemed racially motivated, and that it was insufficient as a matter of law.?? But on rehearing, the Court found that these ?allegations,?? apart?? from ?those?? about?? the security dog, were sufficient to state a claim under section 1981. ?In particular, on rehearing, the Court explained that ?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, 534 F.3d 1116 (9th Cir. 2008), (superseding 2/13/08 opinion) (O?Scannlain, M. Smith, Mosman (D. Ore.)).