concurring in part and dissenting in part:
I concur in the court’s affirmance of the Federal Rule of Civil Procedure 12(b)(6) dismissal of the California state law claims for intentional infliction of emotional distress. However, although it is a close case on the question whether the Title VII discrimination claims should have been resolved by summary judgment, I respectfully dissent from the court’s affirmance of that decision by the district court. I conclude that there is a genuine issue of material fact on the issue of pretext if we consider the totality of circumstances, accept all of Mr. Hobdy’s factual assertions as true, and give him all reasonable inferences from them in support of his claims.
Most significant for me are the immediacy and frequency thereafter of Principal O’Riley’s criticisms of Hobdy in his new role as an assistant principal, that O’Riley on at least one occasion gave Hobdy a dressing down in front of other teachers, and that, although it might be reconciled by reference to different school-district needs or different decisionmakers, Hob-dy’s loss of the assistant principal job carried with it more hardship than the comparable loss faced by Farrell. Certainly one can easily state an innocent explanation of all these, but a contrary inference favoring Hobdy on pretext to me seems to be permissible. For example, one might view O’Riley’s frequent and harshly critical notes, delivered to Hobdy, which started soon after Hobdy started his new job, as legitimate but tough criticisms, with the timing motivated by her trying to turn Hobdy around after she had urged his being hired for administrative work; but one also might view these notes, as Hobdy did, as a campaign of harassment, or as a pretextual attempt to paper the file. In my view, Hobdy’s tale in its factual aspects, if fully credited, raises a genuine issue about the motive of O’Riley, and traditionally such issues of motive have been thought factual and submitted to the trier of fact. See, e.g., Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1072-73 (9th Cir.2004).
If the record viewed favorably to Hobdy only shows that O’Riley was a bad manager, harsh in criticism of subordinates, excessive in looking over their shoulders and unreasonably demanding on points that weren’t critical to the job, that would not be enough to support a Title VII discrimination claim. But the record, again in the light most favorably to Hobdy, rather than most favorable to O’Riley and the school district, shows more. I would let a jury decide.