Francisco Vasquez v. County of Los Angeles, Erroneously Sued as Los Angeles County Board of Supervisors

has. The already than name even worse That every years.

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sampling method dissent.

ly, respectfully I VASQUEZ, Plaintiff-

Francisco

Appellant, ANGELES, errone LOS

COUNTY OF County Angeles

ously as Los sued Defendant-Ap Supervisors,

Board of

pellee. 00-56803.

No. Appeals, States Court

United

Ninth Circuit. 4, 2001. Dec. and Submitted

Argued 30, 2002. Sept.

Filed

County violated Title VII of the Civil Rights Act by discriminating against him on the basis of origin, subject- his national ing environment, him to a hostile work retaliating against him for filing discrimi- nation charges. The district court granted County’s motion, summary judgment and Vasquez appeals. We affirm the dis- trict court.

I. n Vasquez Francisco Deputy is a Proba- Officer, (DPO I), tion Level I who works for the County Angeles of Los at its Doro- (DKC). thy Kirby Center DKC is a deten- facility tion youth for who have committed less serious crimes. youth The live at DKC various cottages, and the DPOs are assigned particular to a cottage or to field, the they where rotate between cot- ' tages. Vasquez assigned was to “tur- eyents quoise cottage” during the that led to this lawsuit.

Kelly Berglund employed was at DKC II, as a assigned DPO and was also to turquoise cottage. A II DPO has more CA, Salisbury, Rosemead, Susan D. for supervisory responsibilities and takes on appellant. the more complex cases than a I. Berg- DPO lund Vasquez experienced conflicts Wolf, Greines, Martin, Barry M. Stein & working together. while Vasquez claims Richland, LLP, Hills, CA, Beverly the for Berglund yelled that and made appellee. negative comments about him in front of youth. the During one altercation in Feb- ruary Berglund made a comment to Vasquez that Vasquez was too domineer- ing with “typical .the minors and had a Hispanic macho attitude.” that Later FERGUSON, NELSON, Before T.G. month, Vasquez filed a grievance against FLETCHER, Judges. W. Circuit Berglund for that remark. The director of NELSON; Opinion by Judge T.G. Leeds, facility, the Karma offered to trans- by Judge Dissent FERGUSON Vasquez turquoise fer out of cottage to conflict, Vasquez alleviate the but did not NELSON, Judge. T.G. Circuit want turquoise cottage to leave so he with- Vasquez, Francisco a deputy probation grievance. drew his officer at a Angeles County youth Los month, center, following Berglund detention sent a brought this action against County, alleging that describing the memo to Leeds incidents to Vas- Berglund spoken had that had behaved aware Vasquez she believed which Berglund proceed- game. in re- before quez was This memo inappropriately. ques- cottage again turquoise to for information ed request Leeds’ to sponse One game. about the youth and behavior tioned the conduct regarding football, Berg- playing but Then, youth fall of in the denied Vasquez. youth had been that he should Berglund to told commented lund left, Vas- “Hispanics After Berglund because job playing in the field football. take they should youth that write in the field.” good quez do told lying Berglund, apologizing to letters occurred the conflict culmination of they which disrespectful, being her and to acting Berglund March on did. subsequently nei- day on director of DKC director sent following Monday, Berglund nor assistant On ther the director Berglund her version of detailing called a memo present. were Leeds cottage play memo stated March 27. The permission for his events request cottage. disobeyed Berglund’s order garnet football his re- granted Leeds also read play football. contends cottage foot- game turquoise was touch youth the the quest, providing letters from was a Berglund claims that had lied to Berglund admitting they there ball. any during kind that no football had acted as a lookout at DKC and that one policy re- to and she therefore Leeds then talked played, game. to the be football French, but said and play supervisor, to football Star request Vasquez’s fused his Leeds with Vas- Ng. Finally, spoke soccer. play he could Mario wrong. doing anything denied quez, who half hour after Approximately one impression Leeds received the call, two DPO I’s Berglund and telephone have he should not Vasquez knew As recreation area. out to the walked 2, 1999, April On playing football. been area, no- Berglund they approached turquoise Vasquez from Leeds removed curb, one of sitting on the youths ticed two position. him in placed field cottage and toward a soccer ball up, threw whom stood Star French issued April On field, something the di- yelled and failing to Vasquez for warning letter of to Berglund and the field. When rection of acting from an residen- follow instructions field, they at the two arrived DPOs to re- Vasquez not supervisor. tial chose cottage and turquoise from youth saw the letter. spond to the ball. kicking a soccer cottage garnet their waist- flags hanging from Some had 23, 1999, charge Vasquez filed a On June when play stopped All bands. Equal Employ- with the of discrimination sev- Berglund asked arrived at the field. (EEOC), Opportunity ment Commission playing youth they if had been eral disparate treat- harassment alleging then football, Vasquez it. they denied but 27, 1999, during period ment March cottage. turquoise to youth took the back Vasquez then went on April youth later admitted August until 1999 because disability leave football, that he saw the playing were Vasquez’s Upon depression. stress throw players and two abruptly end game return, planned him if asked Leeds Berglund approached their flags down to trans- claim and threatened pursue the field. pursue if he it. of DKC did fer out any assigned was not Ng, called Mario

Berglund next to be denied work and continued overtime Ng garnet cottage. I admitted DPO for bilingual pay. not that he was and stated playing football determine, right-to-sue After issued a viewing the EEOC the evidence in the 19, 1999, July letter on filed a light most nonmoving favorable to the par- complaint against County Ange- of Los ty, any genuine whether issues of material alleged under Title He les VII. causes fact exist and whether the district court action for discrimination because of correctly applied the relevant substantive treatment, disparate harassment and and law.2 county

retaliation. The moved for sum-

mary judgment, and the district court III. granted the motion. The court held that prevail order to in a Title VII not a prima could establish facie case, the plaintiff must establish a prima disparate case for the treatment claim be- facie case of discrimination. If the plain cause there was no adverse employment so, tiff in doing succeeds then the burden action and Vasquez failed to show that to the defendant to legit shifts articulate a similarly employees situated were treated imate, nondiscriminatory reason for its al differently. It also held that the alleged legedly discriminatory conduct. If the de harassment was not severe or pervasive reason, provides fendant such a the burden enough to create a hostile work environ- shifts back to plaintiff to show that the Finally, ment. the court dismissed the employer’s pretext reason is a for discrimin retaliation claim because did not ation.3 and, exhaust his administrative remedies Vasquez’s disparate treatment alternative,

in the a prima did establish claim fails because he cannot establish his facie case because there was no adverse case, prima prima facie case. For a facie protected action related to the Vasquez must offer evidence that “give[s] activity. Vasquez of appeals each those rise to an inference of unlawful jurisdiction discriminat decisions. We have to hear ion,”4 § appeal pursuant through to 42 either the framework U.S.C. 2000e- set § and in Douglas 5 28 U.S.C. 1291. forth McDonnell Corp. v. Green5 or with direct evidence of discrimi

II. natory intent.6 In he also must grant We review a court’s of show that he suffered an employ district adverse summary judgment de novo.1 We must ment action.7 We need not decide whether Smith, 1122, (9th Lopez 1. favorably. v. 203 F.3d 1131 own were treated more her God Cir.2000) (en banc). Wesson, Inc., 1217, win v. Hunt F.3d 150 (9th Cir.1998) (citing Doug 1220 McDonnell 2. Id. 802, 1817). Corp., 411 U.S. at las 93 S.Ct. Cos., 3. Cordova v. State Farm Ins. 124 F.3d Cordova, (quoting 124 F.3d at 1148 Wallis v. 1145, (9th 1997). 1148 Cir. Co., 885, Simplot J.R. 889 Cir. 1994)). Burdine, Dep't Cmty. 4. Texas v. 450 of Affairs 248, 253, 1089, U.S. 101 S.Ct. 67 L.Ed.2d 207 Although expressly this court has not stated (1981). employment part an that adverse action is case, any prima including 5. 411 U.S. 93 L.Ed.2d facie S.Ct. 668 those cases (1973). Douglas, Under McDonnell evidence unlawful based on direct of discrimination factors, presumed plaintiff Douglas discrimination is if the can rather than the McDonnell class, (1) belongs protected clearly Supreme show she to a such is the case. The Court (2) Mary's performing according she was v. to her em stated in St. Honor Center Hicks that (3) ployer's legitimate expectations, damages only against she suf "Title VII ... award[s] action, (4) employment employers proven fered an adverse are ad- and who to have taken (in employees qualifications employment by other with similar to verse reason of a assigned preferred he be or indi- because sufficient direct offered contact he had more cottage, where of discrimination rect evidence work. youth an ad- and less administrative that he suffered establish failed to subjective a is whether such question action. The employment verse deciding the relevant when if preference is disparate treatment claim of Vasquez’s adverse. action was employment turquoise out of from his transfer arises and the letter position a field cottage into adverse taken a broad view of haveWe agree file. We warning placed in his There are wide employment actions.8 of these court neither with the district in the disadvantageous changes array of ac- an constitute adverse actions, acts adverse workplace constitute tion. transfers.9 As not- including some lateral Henderson,10 v. we are accord Ray ed I as- dispute no that a DPO is There Seventh, Tenth, Eleventh, First, with the assigned I cottage to a and DPO signed Circuits, take an ex- which also and D.C. hours, pay, field have the same to the ac- pansive view adverse authority, and responsibility amount tions, be holding that an action can primary essentially the same duties. ultimate em- even if it is not an adverse that a positions between difference termination decision like ployment duties has more administrative field DPO and condi- material alteration in the terms youth. less interaction with However, we have employment.11 tions of for a employment specifications official subjec- purely never considered whether two distinguish I between the DPO do to establish tive detriment sufficient positions but list standards types action. Because this adverse to both. admit- applicable duties the aforementioned aligns court itself with a demotion that the transfer was not ted circuits, those circuits discuss- cases from a lateral He stated simply but move. him, however, ing this issue are instructive. the move was detrimental (9th Cir.1986); case) see also Kerns present 509 U.S. race.” context 502, 523-24, Inc., Capital Graphics, 113 S.Ct. 125 L.Ed.2d ("To Furthermore, (8th Cir.1999) prima (1993). establish a previously in- facie we have discrimination, [plaintiff] necessary pres- had to case for that an adverse action is dicated Wallis, showing an ent evidence that she suffered 26 F.3d at part a Title VII claim. employment and some evi- (after adverse action recognizing prima case facie 889 discriminatory behind that dence of motive Douglas fac- on the McDonnell be based can action.”). discriminatory direct or on evidence tors intent, "[ojnce prima the court stated that Henderson, made, Ray 8. See v. 1240 pro- the burden of case has been facie Cir.2000). (9th defendant, must to the who shifts duction action was evidence that the adverse offer 1241, 1243-44; also v. 9. Id. at see impermissibly discrimi- for other than taken Yartzoff (9th Cir.1987) Thomas, reasons.”) added); 809 F.2d (emphasis natory Lowe v. 998, 1005, (holding job duties would Monrovia, that transfers of City 775 F.2d 1006- action); employment St. adverse Cir.1985) constitute (9th (stating "in order to Dep’t, Employment Dev. John prevail, plaintiff demonstrate must (9th Cir.1981) (holding that transfer alleged the adverse employer’s reason for pay job may and status be another same pretext for another employment decision is action). adverse discriminatory,” is and tiren which motive acknowledging prima case can that the facie 10. 217 F.3d 1234. through Doug- McDonnell established tire be discrimi- or direct evidence of las framework added) intent) by (emphasis Id. at 1241. natory amended 11. Seventh, Tenth, Eleventh, agree proper inquiry The We that the to view the action objectively have all stated that an ad to determine D.C. Circuits Otherwise, whether it every was adverse. verse action is to be viewed employment employment minor action that an employ declared objectively. The Seventh Circuit ee did not like could become the basis of a adversity employment of an “[t]he discrimination suit. approach The better judged objectively”12 action is and “not is to determine whether a per reasonable unhap an everything employee that makes in son the same situation would view the an actionable action.”13 The py is adverse disadvantageous. action as We therefore Tenth Circuit noted that a transfer is “[i]f Seventh, Tenth, Eleventh, follow the truly significant lateral and involves no in holding purely D.C. Circuits that a sub changes employee’s in an conditions of em jective analysis appropriate is not when ployment, employee the fact that the views deciding whether an action positively negatively the transfer either or was adverse. does not of itself render the denial or adverse receipt employ transfer decision, In light of this we hold that has also ment action.”14 D.C. Circuit Vasquez’s turquoise cottage transfer from objectively tangible harm rather required an field was not adverse employ- idiosyncracies personal “[m]ere than ment action. He suffered no in decrease an preference” employ to show adverse hours, location, pay change and no work ment decision.15 authority, responsibility. or prefer- His cottage ence to work in a purely sub- considered this is- Eleventh Circuit jective, by evidenced fact that other comprehensively sue the most of all the requested DPO I’s had transfers from cot- came to the circuits and same conclusion.16 tage assignments to the field. Because adopted approach That circuit that the Vasquez offers no evidence that the field that a plaintiff must “demonstrate reason- assignments objectively were less desir- person position able in his would view the disadvantageous, able or he cannot estab- question as ad- employ- lish that he suffered adverse verse.”17 The Doe court noted that it had ment action when Leeds transferred him.19 any no circuit found case its other circuit in which a on The other action at issue explicitly court relied DKC, a subjective preference plaintiff warning of a letter. At letter of warn plaintiff ing reprimand, suspension, hold that the had suffered an ad- is not a or de motion, employee action.18 but is used to inform the verse Brown, Id. at 12. Cullom v. Cir.2000). Vasquez 19. asserts that when Leeds told him Univ., 437, 13. Smart v. Ball State 89 F.3d 441 transfer, she stated that it was because 1996). (7th Cir. poor judgment. According he had to Vas- statement, quez, this combined with the actu- Sch., v. Denver Pub. Sanchez transfer, (10th Cir.1998). employment ac- al was the adverse 532 n. 6 tion. We do not believe that Leeds’ statement Brody,

15. Brown v. F.3d analysis. affects our Leeds' statement to Vas- (D.C.Cir.1999) quez for the action does not about reason itself, change the fact that Dist., County 16. See Doe v. Dekalb Sch. transfer, disadvantageous was not adverse or (11th Cir.1998). objectively. when considered 17. Id. and would not have influenced The letter seminated something wrong. that he did year. concerning any potential file for one employee’s French’s decision remains French, Therefore, testi- Star not an ad- Vasquez’s supervisor, it was promotion. letter should not affect warning that a fied action. Because Vas- verse promoted and that chance to be person’s any quez cannot establish he suffered judg- affect her a letter would not such action, the district adverse super- to whether someone she ment as disparate court was correct to dismiss his promoted. This letter vised should be claim. treatment an adverse warning was not IV. action. previously have held that dis Berg-

We next asserts job unfavorable reference semination of an racially lund’s conduct towards was employment action even was an adverse harassment that created hostile based potential em though it did not affect the VII, Title it is work environment.24 Under have held that ployer’s decision.20 We also employer unlawful for an to discriminate negative performance ratings undeserved any respect individual with to his However, held are adverse actions.21 we terms, conditions, privi or compensation, Authority22 Youth in Kortan v. California race, leges employment because of his an ad negative that a evaluation was not sex, color, religion, origin.25 or national To action when it was not disseminated verse prevail workplace prem on a hostile claim beyond supervisor the second-level sex, plaintiff ised either race or must on corrected to not be undeserved.23 was so as (1) subjected to verbal show: was in this case was not an ad- letter of a racial or sexual physical conduct It was not disseminated be- verse action. (2) nature; the conduct was unwel Leeds, yond Vasquez’s super- French and (3) come; that the conduct was suffi visors, and was to be removed from his file alter the ciently pervasive severe or year. purpose after one of the letter plaintiffs employment conditions perfor- not to act an evaluation or was and create an abusive work environment.26 review, Vasquez know he mance but to let prove Because the elements hostile something wrong. done In that re- had are the same for both work environment gard, the letter was not undeserved be- harassment, racial harassment sexual French concerned that cause was analyzing types both of harassment cases seriously and taking was not the situation analysis. are relevant to our she to make sure knew wanted To determine whether conduct was following acting that not an order of an sufficiently pervasive severe or to violate supervisor wrong. The letter had no VII, “all the circum Title we look at detrimental effect on at the time stances, including frequency of the dis unlikely It to have was issued. also was conduct; criminatory severity; whether any future effect because it was not dis- its Dalton, discrimination based on 20. Hashimoto v. claimed 1997). origin. a claim that he Cir. national against because he was was discriminated Thomas, 1371, Hispanic actually a claim. race based 21. v. 809 F.2d 1376 Yartzoff (9th 1987). Cir. 2000e-2(a)(l). § 42 25. U.S.C. (9th Cir.2000) 22. 217 F.3d 1104 1071, Widnall, Gregory 26. v. 153 F.3d 1998). (9th 23. Id. at Cir. 1113. threatening humiliating, request Vasquez’s or for information about physically utterance; year and wheth- a performance, a mere offensive and one written later an em- unreasonably interferes with concerning er it the events of March 27. All of ployee’s performance.”27 work these incidents occurred over the course of environment must both working “[t]he year. more than one objectively perceived be subjectively and compared When to other hostile work Berglund’s conduct was not as abusive.”28 cases, environment the events in this case a enough to constitute pervasive severe or pervasive enough are not severe or to vio- work environment and thus did hostile City late Title VII. Sanchez v. Santa Title violate VII. Ana,29 the plaintiffs court dismissed hos- Berglund claims that continual- Vasquez tile work environment claim. held We provides specific fac- ly harassed but jury that no reasonable could have found a inci- allegations regarding only tual few work despite allega- hostile environment Vasquez’s primary basis of dents. employer racially that the posted tions by Berglund claim arises from statements cartoon, racially offensive made offensive Hispanic “a typical that had ma- slurs, targeted enforcing Latinos when that consider cho attitude” and he should rules, Latinos, provided unsafe vehicles to “Hispan- transferring to the field because provide adequate police backup did not to state- good do in the field.” These ics officers, kept illegal personnel Latino than ments were made more six months plaintiffs they files on were Lati- allegation apart. Concerning Vasquez’s allegations no.30 The in were at Sanchez at him in front of the Berglund yelled case, yet severe least as as those only youth, Vasquez provides evidence the court held as a matter of law when this occurred. One two instances there was work no hostile environment. Berglund yelled instance was when at Vas- provide Sexual harassment cases also quez letting youth paint” for “sniff examples type necessary of the of conduct doorway painting while produce an abusive work environment. The other occurred cottage. instance Rochester, Draper held in We Coeur Berglund juvenile when called Inc.,31 that defendant created a hostile delinquent letting youth play foot- plaintiffs work environment where the su allegation Berglund ball. Vasquez’s pervisor repeated made sexual remarks remarks about him in front negative made plaintiff two-year period, about the over a youth reports from the is based on calling “gorgeous” her and “beautiful” youth. Vasquez personal did not have name, telling her rather than her about Finally, re- knowledge of those remarks. sexual fantasies and his desire to have sex garding allegation made her, “ass,” commenting on her continual, complaints false about if Leeds, asking loudspeaker over a she needed writ- offers two memos Likewise, help changing clothes.32 we by Berglund, response ten one Leeds’ Breeden, (9th Cir.1990). County 27. Clark Sch. Dist. v. 29. 1508, 268, 270-71, 121 S.Ct. U.S. (internal quotation marks and L.Ed.2d 509 Id. at 1036. 30. denied, omitted), reh’g 533 U.S. citation (2001). 121 S.Ct. 150 L.Ed.2d 248 (9th Cir.1998). 147 F.3d 1104 Mateo, City 28. Brooks v. San Id. at 1109. Cir.2000) (internal quotation marks omitted). and citation Vasquez’s complaints other the same conclusion Nichols bined came to treatment, Inc.33 Enterprises, Azteca Restaurant unfair are similar to the about There, employee male restaurant supervisor incidents in Kortan where the campaign a relentless subjected was made sexual remarks and several offensive insults, name-calling, vulgarities, and with that plaintiff had other difficulties “fucking female “faggot” taunts of Kortan, supervisor. Like in we conclude supervi co-workers and by whore” male conduct not severe or Berglund’s was a week and often several sors at least once work pervasive enough to create a hostile day.34 times a environment. contrast, we determined in Kortan V. no hostile work environ- there was em- when a called female supervisor Leeds,

ment Vasquez’s last claim is that bitches,” “Madonnas,” “castrating ployees re Berglund, county employees and other “Regina” plain- or on several occasions filing grievance him for against taliated presence; supervisor called the tiffs against Berglund filing and for a discrimi “Medea”; plaintiff complained plaintiff subject charge.37 nation To establish mat supervi- difficulties with that about other jurisdiction ter over his Title VII retalia sor; plaintiff received letters at claim, have tion must exhausted supervisor.35 The court home from the by filing administrative remedies that, supervisor’s language held while timely charge with the This af EEOC.38 offensive, his conduct was not severe agency opportunity fords the to investi enough unreasonably inter- pervasive gate charge.39 Subject jurisdic matter employment.36 plaintiffs fere with the tion extends to all claims of discrimination in light previ- When considered of these scope that fall within the of the EEOC’s cases, complained ous the conduct about investigation investiga actual or an EEOC by did not create an abusive work reasonably expected tion could be in- allegedly harassing environment. The grow charge.40 out of the cidents, which occurred over the course of Vasquez’s charge Because EEOC year only more than one two of which only claimed harassment and different racially epithets, contained related did not treatment, we must decide whether his create a hostile work environment for Vas- reasonably current claim retaliation re quez. frequent, The conduct was less less so, charge. doing lated to the EEOC severe, humiliating and less than the con- may we consider “such factors as the al but, Draper duct at or Azteca issue discrimination, rather, leged basis of the dates of in line with that in Kor- was more remarks, discriminatory specified tan. Two isolated offensive com- acts within the (9th Cir.2001). against County 33. 256 F.3d 864 that the retaliated also filing original grievance against Berglund. Therefore, 34. Id. at 870. parts we will consider both of his claim. Kortan, 35. 217 F.3d at 1107. 2000e-5(b); § 38. 42 U.S.C. v. Maui B.K.B. 36. Id. at 1111. Dep’t, Police Cir. 2002). only 37. The district court considered Vas- quez's allegation County B.K.B., that the retaliated filing charge him for a discrimination (internal appears quotation with the EEOC. that Vas- 40. Id. at 1100 marks and omitted). quez allegation did include in his citation claim Berglund. Berglund was was of discrimination charge, perpetrators any locations at charge, in and responsible assigning named the not for overtime n alleged to have oc- which discrimination for awarding bilingual pay. work or Vasquez did curred.”41 We conclude Vasquez’s on charge, Based the EEOC administrative remedies not exhaust his have no reason to investigate would filing for the discrim- regarding retaliation employees assigned who overtime work or that he did exhaust as charge ination but employees who decided whether filing grievance. to retaliation for bilingual pay/ award the deni- bilingual pay als of overtime work and are complaint EEOC al Vasquez’s completely unrelated to the facts that form subject that he was to harassment leged of the in the basis discrimination 27,1999, treatment on March and different charge. Finally, the denial of overtime -him Berglund lying. accused because bilingual pay work and did not occur with- Vasquez then states that charge The turquoise cottage out of on in alleged transferred the time frame the events 2, 1999, given warning and a letter of April charge. A EEOC reasonable investi- charge The also states April on 1999. gation" by the EEOC woiild not have en- Vasquez not a rea Berglund give did compassed allegedly retaliatory these acts. him to subjecting son harassment for As for Leeds’ threat to transfer Vas- treatment, but that Leeds told different quez, that event occurred several months failing transferred for to follow he was alleged after the harassment and even af- violating an established instructions right-to-sue ter the EEOC had issued its practice. only The names mentioned letter. The EEOC could not have investi- complaint were and Leeds. yet that incident gated had the form for Vasquez checked the box on happened at the time the EEOC was con- origin national but discrimination based on ducting investigation. And while its box retaliation. did not check the for Leeds’ threat of transfer is similar to her Vasquez’s retaliation part The first Vasquez turquoise transfer of out of cot- him for claim concerns retaliation tage, Leeds was not the individual accused charge with the filing the discrimination n would have of harassment. EEOC charge filed the on June EEOC. Berg- reasonably investigated conduct of that after he 1999. asserts Leeds. Because lund but not conduct of August work in Leeds returned to theory of present legal did not she could have him trans- threatened that retaliation, operative unlawful and the pursued ferred out of DEC if he his dis- claim were regarding part facts of his claim. also asserts crimination the facts in the EEOC not related to filing charge retaliation for his EEOC be- did not exhaust his administra- charge, he duty assigned cause he was not overtime Thus, juris- no remedies.42 we have tive bilingual pay. and he did not receive County the claim that the diction to hear investiga- acts fall under an None of these filing an against Vasquez retaliated would have conducted tion that the EEOC charge. EEOC charge. on the based Vasquez’s re part The second accused of only person acts that oc- charge taliation claim is based on discriminatory acts his EEOC legal theory being notify agency Id. issue). operative argued facts at Cleland, Ong Cir.1981) (stating charge an EEOC must in passing, Ray at least in February question, curred after he filed Henderson,45 Berglund for discrimina- grievance against adopted the We EEOC that his transfer out Vasquez claims manual,46 tion. compliance from standard its cottage Berglund’s turquoise of cognizable “an as an and held that action is for the were in retaliation harassment if it employment adverse action is reason- we must deter- grievance Again he filed. ably likely employees engag- to deter from ad- mine whether exhausted his context, activity.”47 ing protected part this of remedies as to his ministrative is, subjective part, at least in a stan- this charge not claim. While the EEOC does speaks manual dard since EEOC theory of retalia- legal the relevant contain “ ‘any adverse treatment that is based on a tion, the relevant factual it does contain retaliatory reasonably likely motive and is charge alleges allegations. The EEOC charging party or others to deter from Vasquez and that harassed ”48 engaging protected activity.’ turquoise cot- he was out of transferred specified acts as retaliation tage, the same Including charging party behavior investigation claim. Because an his it hypo- in the standard removes from the likely re- charge would have EEOC employee” approach thetical “reasonable Vasquez’s grievance against earlier vealed course, subjective. and makes more Of a claim of retaliation could have Berglund, entirely subjective it is not as the conduct charge.”43 We con- “grow[n] out “reasonably likely” must be to deter the clude that did exhaust his admin- activity, by charging even protected part as to this of his istrative remedies party. Thus, jurisdiction to con- claim. we have regarding the sider his retaliation claim analysis, purposes For of our we will grievance. Ray met assume transfer standard. this does not save prima out a facie case To make Vasquez’s retaliation claim because he has retaliation, Vasquez establish that must a link.49 The protect- failed to show causal activity under protected he undertook activity prior ed occurred thirteen months VII, subjected him to employer Title Further, alleged to the adverse action.50 action, employment an and there adverse county’s has not shown that the link two events.44 is causal between those proffered disobeyed reason —that he a di- sepa us to examine analysis requires This Therefore, pretextual.51 rect order —was rately whether the “adverse affirm the claim objective we dismissal through considered action” is subjective addressed this well. lens. We Kortan, B.K.B., 43. at 1100. 49. 217 F.3d at 1112. F.3d Kortan, 44. 217 F.3d at 1112. See, Air, e.g., 50. Villiarimo v. Aloha Island Inc., (9th Cir.2002) 1064-65 45. 217 F.3d 1234. (finding protected no causal link when activi- 1242-43; Id. at see also EEOC 46. Compliance ty "nearly year occurred and a half” before ¶ (1998). § 8 "Retaliation'' action). Manual adverse Ray, 47. 217 F.3d at 1243. Ray, 217 F.3d at (quoting 48. Id. at 1242-43 EEOC Compliance ¶ (1998)) (em- § 8 "Retaliation” Manual added). phasis Disparate

VI. I. Treatment Claim I disagree majority’s with the conclusion treatment claim disparate Vasquez’s proffered has not sufficient any not suffer from because he did fails jury evidence for reasonable to find that Berglund did employment action. adverse he suffered an adverse envi- subject Vasquez to a hostile work disparate as to his treatment claim. therefore, ronment, Vasquez’s claim of and conclusion, im- reaching majority the Finally, well. we must harassment fails as poses objective adversity requirement an because Vasquez’s retaliation claim dismiss determining employee whether an has not exhaust his administrative rem- he did subjected employment been to an adverse claim, assuming as to of his part edies disparate action treatment claim. In employ- an adverse the transfer is. so, doing majority protec- the the narrows action, not shown either a ment he has tions of Title VII. employer’s prof- link the causal or Instead, test, appropriate under the the For these pretextual. reason was fered adversity employment of an decision is reasons, we affirm the district court’s dis- found in of change the terms and condi- Vasquez’s missal of claims. person’s employment, regardless tions of a preferable of whether it is viewed as or AFFIRMED. test, Vasquez unfavorable. Under this has proffered sufficient evidence show that FERGUSON, Judge, dissenting: Circuit materially the transfer the terms affected Today, ma- respectfully I dissent. the employment. and conditions of his jority beyond reaches the facts of this casé imposes requirement a new on Title Change A. Material Terms Con- Employment objective claimants to show the adver- VII of ditions discriminatory employment ac- sity of majority Vasquez’ concludes that tion, narrowing scope the of Title thereby employment transfer was not adverse majori- protections. VII’s “purely action the detriment because erroneously that Francisco Vas- ty holds subjective.” prof- has (“Vasquez”) was unable to make a quez fered evidence that his transfer constituted retaliation, finding no prima case of a material alteration of the terms and con- facie activity protected causal link between the Thus, of it was employment. ditions his de- employment and the adverse action improper question to reach the whether Alter- spite the evidence offered. could es- subjective preference alone natively, they hold that was un- an adverse em- tablish that he suffered employer’s able to show that his stated action. ployment pre-textual. reason for the transfer was An adverse action Finally, majority dismissing errs in imposed if employer’s shown decision hostile work environment claim Vasquez’ change in the terms and con- “material doing, improp- a matter law. In so it of person’s employment.” of ditions of the erly downplays pervasiveness Cal., Chuang v. Univ. by ongo- environment created hostile (9th Cir.2000); Kang accord v. U. Kelly Berglund ing harassing conduct Inc., Am., 818-19 Lim wholly 2(a) (“Berglund”) and fails to address Cir.2002); § 2000e see also U.S.C. employer played in Vasquez’ the role that discriminat- (prohibiting employers from sanctioning, correcting, “against any respect rather than individual with ing conditions, terms, or compensation, Title VII. to his harassment violation of If majority open- of such is concerned about privileges employment, because sex, race, color, religion, or claims, individual’s floodgates to meritless our ing added). origin”) (emphasis national whether the inquiry should focus on “repeatedly made Supreme Court has was too minor to be actionable under Title although VII] clear that mentions [Title 2(a) prohibits employ- 2000e VII. Section specific employment decisions with imme- practices ment “discriminate scope pro- consequences, diate any respect compen- to his individual hibition is not limited to economic or sation, terms, conditions, privileges or ... and that tangible discrimination such individual’s covers more than ‘terms’ and ‘conditions’ race, sex, color, religion, or national ori- in the narrow contractual sense.” Nat’l added). gin.” (emphasis If a material term — Morgan, Passenger Corp. R.R. condition of has not been -, 2061, 2074, U.S. S.Ct. altered, no Title VTI violation has oc- (2002) (alteration in original) L.Ed.2d 106 However, curred. such is not the case (internal quotation marks citations before us. omitted). Indeed, statutory phrase the “terms, conditions, privileges or of em- Vasquez’ B. I Transfer to a Field DPO ployment,” congressional “evinces a intent Position spectrum dispa- at the entire of strike ” ... in employment.’ Applying rate treatment the material terms and condi- Servs., Oncale v. Sundowner above, employment explained tions of test Offshore Inc., 75, 78, 998, 523 U.S. 118 S.Ct. 140 Vasquez’ transfer constitutes an adverse (1998) (quoting L.Ed.2d 201 Meritor Sav. employment Vasquez alleges action. that Bank, Vinson, 57, 64, v. FSB. 477 U.S. employment he suffered an adverse action (1986)). 2399, 91 106 S.Ct. L.Ed.2d 49 position when he was transferred from his deputy probation In contravention of Title VII’s broad as a resident officer I (“DPO I”) coverage intangible tangi of well as Turquoise cottage at the of the —as harms, majority a new re (“DKC”) erects Dorothy Kirby Center to a field ble— quirement employment that action I, I position. DPO As a resident DPO objectively majority must be adverse. The Vasquez worked of a part therapeutic as that, “[o]therwise, every reasons minor team, primary responsibility which had for employment employee action that an did residing the rehabilitation of minors at the not like could become the basis of a dis Turquoise cottage. a field Maj. Op. crimination suit.” at 891. I, Vasquez cottages, DPO rotates between so, doing majority ignores that the evil spends more of his time on administrative Title VII aims to eradicate is discrimina and in contact parents tasks with of minors tory workplace, par treatment in the not DKC, only sporadic and has contact ticular actions. See McDon with the minors themselves. Consequen- Green, Douglas Corp. nell v. 411 U.S. Vasquez’ form tially, opportunity to influ- (1973) 93 S.Ct. 36 L.Ed.2d 668 relationships ential with the minors and to (“Title VII tolerates no racial discrimina an impact greatly have on their lives is tion, otherwise.”); Rodriguez subtle or reduced. (2d Educ., Bd. Cir. of job I description for a DPO includes 1980) (“Recognizing job discrimination care, providing safety “for the and control forms, many may Congress take cast the Thus, in camp.” position of minors of prohibitions broadly of Title VII to include designed I is with expressly DPO subtle distinctions the terms and condi employment....”). purpose interacting caring tions of with and majority that the Accordingly, It is ironic relies on residing at DKC. minors subjective preferences I those of the a DPO of evidence deprives a transfer deny Vasquez’ I’s to claims as a posi- his new other DPO opportunities same Yet, work, law. matter of with standard set entails more administrative tion improper today, weighing and. less time forth this parents, contact with more Indeed, it is preferences is inevitable. changes the “terms” and with the minors man’s meat is another employee’s employ- “[o]ne truism of that “conditions” III, F. poison.” Lidge man’s Ernest “intangible” That the harm is does ment. Meaning Why Discrimination: of Title VII. Courts bring it outside the ambit Requiring Employment Have Erred in at 2074. Because Morgan, S.Ct. See case, Prove Discrimination occurred that what Plaintiffs Employer’s Materially ad- Action Was evidence of an proffered has sufficient Ultimate, Adverse or 47 U. Kan. L. Rev. to defeat sum- verse omitted). (1999) (citation 333, 356 Because disparate on his Title VII mary judgment purposes each has different Chuang, claim.1 individual treatment See preferences respect to his her life’s (holding at 1126 that the relocation work, requirement objective adversi- space was an adverse plaintiffs laboratory ty simply inadequate indicator for action because it “constitutes employee whether an has an determining in the terms and condi- change a material actionable claim discrimination under employment.”). of ... tions VII. Title that “a field majority acknowledges The Further, if proper inquiry even the is more administrative duties DPO has employee whether a would youth.” Maj. Op. “reasonable” interaction with less adverse, Nevertheless, such an in- that view the transfer as it finds Vas- at 890. quiry require among in does not a consensus cottage to work was quez’ “preference Vasquez’ position in that the by person evidenced the fact each subjective, as purely than a cot- position field is less desirable requested I’s had trans- that other DPO Rather, assignment. question tage to the cottage assignments from fers viewing reasonable in whether Maj. Op. Although at 891. other field.” disadvantageous. The ma- his transfer as may position the field be- prefer DPO I’s More- jority fails to address this issue. cause, like to example, they for would over, that some DPO I’s its observation working parents more time spend position underscores preferred mi- the field among groups different alternating be left nors, precisely why question should subjective preferences are im- their jury, not to providence judges v. to material. Int’l Bhd. Teamsters Cf. States, 18, a matter of law. n. 97 determine as 431 U.S. 338 United (“Title (1977) 1843, 52 L.Ed.2d 396 S.Ct. Surrounding Vasquez’ Circumstances C. equal opportunity for to com- provides VII Transfer job, thought it is pete any for whether another.”) (citations to consider the rele- majority fails than better or worse omitted). surrounding circumstances vant facts and ratings, prov- if performance context fur- and undeserved 1. Our decisions the retaliation en, employment de- ‘adverse Vasquez' con- would constitute that transfer ther demonstrate Auth., ”); v. Cal. Youth employment action. See cisions.’ Kortan an adverse stitutes Cir.2000) (9th (distinguishing Ray, (finding that a lateral F.3d 217 F.3d at 1241 negative plaintiff's evaluation employment because an adverse transfer constitutes Yartzoff Thomas, action); by accompanied "different or more was not v. Yartzoff Cir.1987) ("Transfers responsibilities”). job work duties burdensome objec- might unique particular be to a situa- transfer. Even under the Vasquez’ tion”) (internal omitted). quotation marks by majori- adversity test set forth tive cir- particular consider the ty, we should it is relevant that the em very ployment action taken was the one the transfer to surrounding cumstances every step, had resisted at it constituted an ad- determine whether point passing up promotions even to the Vasquez’ action. trans- employment verse withdrawing grievance of racial and by warning letter accompanied fer was against Berglund,2 sexual discrimination of DKC Director Karma and statements avoid the transfer to the field. Under (“Leeds”), which indicated that his Leeds circumstances, Vasquez these could rea necessary because he lacked transfer sonably have understood the transfer be position have a of influ- judgment an adverse action. See Dilenno Good majority rele- ence with the minors. (3d Cir.1998) Indus., mil to a its conclusion that gates footnote (holding that lateral transfer from store our “affeet[ ] Leeds statements do tagger processing to clothes was an ad change “not analysis” they do verse action when the em ... ployer employee pho fact that the action itself was not knew had a bags bia of “critters” found donation disadvantageous when adverse or consid- unwilling and that she would be to do that Maj. objectively.” Op. ered 891 n. 19. particular job). rejects warn- It also the assertion short, majority holding errs ac- ing letter was an adverse a matter of law that has not suf- it tion because had “no detrimental effect fered an adverse action. Maj. Op. on at 892. Vasquez.” Moreover, improperly raises the bar to- Yet, upon the Eleventh Circuit ease day employees who have suffered dis- majority which stated that the crimination in violation of Title VII. Fur- relies ther, standard, even under its new it is a “a proper inquiry was whether reasonable whether, question jury for the under all in would have his person position his found circumstances, the facts and a “reasonable under all the transfer to be adverse facts person in the same situation would view and circumstances.” Doe v. Dekalb Coun- disadvantageous.” Maj. the action as Op. (11th Dist., 1441, ty Sch. 145 F.3d 1453 Doe, 891; 1453; at see 145 F.3d at see also Cir.1998). Here, warning letter and 1365, City City, Davis v. Sioux 115 F.3d Leeds’ statements could lead a reasonable (8th Cir.1997) (affirming jury 1369 deter- person to believe that the transfer to the employment mination that action ad- was position simply field was not a lateral verse). inappropriate majori- It is for move, punitive employment action. but ty speculate Vasquez as to whether Sys., v. Muncie Ind. Transit See Stockett proffer could evidence that was he reason- Cir.2000) (7th 997, (recog- 221 F.3d 1001 in viewing able the transfer as an adverse nizing that the existence of an adverse Thus, summary action. I would reverse can employment judgment ground.3 turn on “indices on this employee was a senior who also established the more other elements prima facie of his case. Under McDonnell Turquoise cottage. served as a DPO II at the (1) Douglas, he must show: is a he member of II, supervisory As a DPO she some re- had class, (2) (3) protected qualified, he was sponsibilities cottage. over the DPO I’s at the action, (4) similarly- employment adverse apparently she served as the act- situated non-class members were treated ing director of DKC from time to time. favorably. Aragon Republic v. Silver more Henderson, Ray v. ployment action. Claim Retaliation II. evaluating test for adopted a broad we claim, Vasquez his retaliation To sustain actions alleged employment adverse “(1) protected in a engaged show: must retaliation claims. VII context Title (2) him to subjected employer activity; that, purposes held Specifically, we (3) action; and employment an adverse claims, “an action is Title retaliation VII pro- link between causal exists that ac- an adverse cognizable as action.” adverse activity and the tected reasonably likely to deter em- tion if it is Henderson, Ray v. activi- engaging protected from ployees Cir.2000). (9th majority holds adopted We ty.” Id. 1242-43. claim fails retaliation Vasquez’ Opportunity Commis- Equal Employment a causal link be- not show did (“EEOC”) actions, rea- test for such sion’s and the ad- activity protected tween with that its standard is “consistent soning Alternatively, action. verse the lan- law and effectuates prior our case failed to majority states that (rely- Title VII.” Id. guage purpose for the reason the stated establish Manual Compliance Section ing on EEOC I pre-textual. transfer (1998)). 8, “Retaliation,” Par. 8008 prima out a made find that would turn, EEOC, this test “based adopted regard to all of retaliation case facie policy consider- statutory language on elements. three Manual, § Compliance 8- ations.” EEOC engaged “he First, Vasquez showed 11(D)(3) (1998). are claims Retaliation filed the activity” when he protected ain 2000e-3(a), § which by 42 U.S.C. governed Berg- regarding February grievance employ- “unlawful is an provides discriminatory statements. lund’s employer for an to discrimi- practice ment ... employees be- any of his Second, that his em- nate has shown made any practice opposed cause he has an adverse em- subjected him to ployer Wesson, Inc., (9th Cir. Inc., 150 F.3d 659-660 Disposal, State Cir.2002) (amended 1998). opinion). Although The bur- made the ultimate Leeds County decision, "to articulate to the Berglund's report den then shifts "set in transfer non-discriminatory for [the reason legitimate, to ... of events that led the chain motion (citation at 659-660 Id. action].” adverse City Gilbrook action.” adverse does, omitted). Vasquez must County If the Westminster, (9th Cir. pretext. Id. proffer of evidence 1999). sufficiently Berglund was in Whether First, Hispanic a Vasquez protected as is impute her discrimi to in the decision volved Second, qualifications are not his male. County jury ques a natory to the is animus above, Third, Vasquez as shown dispute. Godwin, at 1221. tion. the adverse em- issue to a triable as raised evi- Vasquez proffered, as circumstantial Fourth, proffered he suffi- ployment action. Berg- testimony that pretext, his dence of differently treated that he was evidence cient playing him from not lund did forbid similarly-situated employee because than a at 659-60. In Aragon, football. I, was not transferred Ng, a DPO Mario also to transfer him Leeds' threat foot- the March participating in for Berg- grievance regarding when he filed game. ball a dis- to show statements tends lund’s County its non-discriminato- asserts as Douglas, criminatory motive. McDonnell Vasquez' alleged the xy transfer reason 804-05, (hold- S.Ct. 411 U.S. at Berglund, order from disobedience of direct may pretext include ing that evidence Vasquez proffers supervisor at the his time. "reaction, any, [the if employer’s evidence direct and circumstantial both rights activi- legitimate civil plaintiff’s] pretext. Thus, ties”). a triable is- raised Vasquez explicit epithets constitute direct Berglund’s claim. treatment disparate to his sue as v. Hunt Godwin evidence of discrimination. evidence, employment practice by Despite an unlawful majority [Title finds link, VII].” failed to show casual citing our decision in Villiarimo for the majority While the assumes “that proposition that the year between Vas- standard,” I Ray transfer met the would quez’ protected activity and the adverse explicitly employment find that an adverse employment action severed the causal link. purposes in fact exists for action Vas- Villiarimo, nearly we held that “a Maj. Op. claim. at 890. quez’ retaliation lapse month between Vasquez’ Turquoise protected activity transfer from the cot- tage position the field constitutes an and an adverse action is sim- action if it adverse was “rea- ply long, by itself, too to give rise to an likely from sonably engag- [him] to deter inference of causation.” Villiarimo v. Alo- ing protected activity.” Ray, Air, Inc., (em- ha Island 281 F.3d at 1065 a unique at 1242-43. This is case in which added). phasis The critical difference in that the transfer actually facts show the instant case that timing was not the engaging did deter from in pro- sole evidence of causation that fact, activity. tected withdrew earlier, proffered. As noted Vasquez pro- his grievance against Berglund after vided evidence of Berglund’s racially dis- only him that "the Leeds told solution to criminatory prior comments as well as her the conflict between them was to transfer efforts him to have transferred to the field. Turquoise cottage, him out of the and that Additionally, majority holds that way only he could avoid the transfer Vasquez’ retaliation claim fails because grievance withdraw" was to Vasquez has county’s not shown that the Thus, Berglund. He promptly did. Vas- proffered reason —that allegedly dis- quez issue raised triable as to the ad- obeyed a direct order —for the adverse verse action since a reason- pre-textual. The majority jury able could find the transfer was drawing because, errs in this conclusion reasonably likely Vasquez’ pro- to deter previously noted in our discussion of Vas- tected activity. claim, quez’ disparate treatment Third, Vasquez proffered sufficient evi- offered both direct and circumstantial evi- dence that a causal link existed between dence pretext. Berglund’s explicit ra- protected activity and the ac- adverse cial epithets, Vasquez’ testimony that , Although tion. passing year Berglund did not forbid him playing from protected activity between his (February football, and Leeds’ threat to transfer 1998) (March 1999), and the transfer when he a grievance filed all support a alone, standing probably long too finding of a triable issue as to his retalia- discrimination, raise an inference of Vas- tion claim. quez proffered also evidence of Berglund’s retaliatory prior motive and attempts to III. Hostile Work Environment Claim him have transferred. For example, a I Finally, disagree majority’s with the 20, 1998, memo dated March Berglund determination that Vasquez’ hostile work wrote to Leeds: “It clear beyond seems claim environment fails a matter as of law. Vasquez[ may doubt that Mr. ] not be the To summary judgment, survive Vasquez ideal candidate in a cottage to work must raise a Vasquez the minors at triable issue as to whether: DEC.” also testified (1) Berglund “get” “subjected threatened to was to or physical him and verbal (2) attempted pressure sex; him into transfer- conduct” because of his race and ring out of the Turquoise cottage. unwelcome”; (3) “the conduct was and re- get days You’ll off.” This statement sufficiently severe was “the conduct Hispanics Berglund’s stereotype of of [his] the conditions vealed to alter pervasive work lazy create an abusive and unambitious. and at 817-18 Kang, 296 F.3d environment.” However, hostility Vasquez toward (internal citation marks and quotation Instead, Berglund en- stop did not there. omitted). a rea is whether At issue here and campaign deprecation in a of gaged harassing find that jury could sonable harassment, only the aim of which can be ‘to al sufficiently pervasive “conduct Vasquez interpreted attempt as an to east employ [Vasquez’] the conditions ter him and to have trans- incompetent as' working envi an abusive ment and create Turquoise cottage. ferred out of the ” Inc., Transp., Pavon ronment.’ Swift harassing conduct included: fil- Berglund’s Cir.1999) (9th (quoting harassing com- a number of false and ing Bank, FSB., 477 U.S. Sav. Meritor Vasquez, as well as threat- plaints against 2399). 106 S.Ct. revenge and with ening reprisals him with evidence proffered has Vasquez him). (that addition, “get” she would at him and en- epithets Berglund directed hu- Berglund subjected Vasquez public against campaign in a of harassment gaged miliation, screaming at him front of the sex.4 He has of his race and him because During one minors on several occasions. employer his did also demonstrated publicly ac- episodes, Berglund of these To the the harassment. nothing stop the minors to Vasquez permitting cused were aware of contrary, employers by sniffing paint. During fresh get high it. I will ad- tolerated harassment but another, him called him a she berated and of the hostile aspects of these dress both “juvenile delinquent.” in turn. environment work n majority recognizes Berglund’s some evidence of proffered BergluNd’s Harassing A. Conduct treatment,” but fails to consider “unfair majority recognizes, As the ongoing discrimi- backdrop them in the bigoted statements evidence of proffered Maj. by Vasquez. natory alleged behavior told by Berglund. directed at .She Yet, at- Berglund’s repeated Op. at 894. Hispanic and that because he was and charac- Vasquez’ competence tacks on male, macho and aggressive, too “he was inextricably pattern part are ter also with the minors.” She domineering Berglund hostility that racial and sexual ma- “typical Hispanic that he had stated Draper v. Vasquez. See exhibited aggres- to be less attitude” and needed cho Inc., Rochester, Coeur These statements the minors. sive with Cir.1998). in Draper, stated As we sug- and openly hostile to were in all comes “[discriminatory behavior unquali- dangerous that he was gested sizes, might what be shapes minors of his to work with because fied circum- in some occurrence innocuous later race and sex. pattern in the context of may, stance transfer out of that he should told harassment, an al- take on discriminatory “Hispanics Turquoise cottage character, causing together different be off. in the field. You’ll better do well 2000e-2(a)(l) (forbidding employment dis § Vasquez’ majority claim is states that sex); of race or on the basis Maj. crimination “racially based harassment.” one for cf. Haw., 1561-62 Lam v. Univ. asserts that Op. at 892. of 1994) (9th (recognizing combined race Cir. of his because of the confluence was harassed under Title sex, claims sex discrimination protected and which are race both of and VII). VII. 42 U.S.C. under Title characteristics demeaned, humiliated, trusted.”); niggers worker feel or can’t be Kortan cf. Auth., intimidated on account of race and [his v. Cal. Youth 1110- Indeed, alleged gender].” Berglund’s (9th Cir.2000) Id. (affirming summary judg her claim that ly complaints, such as false only ment when one offensive comment pro “inappropriate exhibited employee). was directed at the vocative behavior with the individual mi publicly also humiliated and demeaned nors,” were consistent with her stereo Vasquez, yelling at him in front of the typing domineering that he was too filing' minors and false charges against “typical the minors and had a Hispanic him. Ray, F.3d at 1245-46 (reversing macho attitude.” Dep’t See Allen v. Mich. summary judgment employee’s when the Corrections, Cir. supervisors yelled “regularly during at him 1999) (finding support plaintiffs claim ‘liar,’ meetings; staff ... him called unfairly” that he was “treated because his ‘troublemaker,’ rouser,’ and a ‘rabble allegation being closely more monitored ”). told him up’ to ‘shut than employees white was consistent with majority The tenor of opinion is that supervisor’s that “niggers statement Vasquez’ claim fails he simply ex- trusted”). can’t be perienced an interpersonal conflict with Discounting the ongoing nature of the Berglund. Maj..Op. See at 894. It is finding harassment and only “isolated of- beyond dispute that a personality conflict fensive and “complaints remarks” of unfair trigger protections is insufficient to treatment,” majority concludes that However, Title VII. not is the case at proffered has not sufficient evi- hand. Vasquez proffered has evidence dence of or pervasive severe harassment to that his “conflict” with Berglund originat- survive summary .judgment. doing, In so ed from her discriminatory statements and majority compares Vasquez’ allega- against animus she harbored him as a tions to the facts of other cases to conclude evidence, Hispanic male. This combined that he has not perva- suffered severe or allegations with the humiliating of her However, sive harassment. it is a viola- accusations, comments and false sufficed to that, justice tion individual just to claim raise a triable issue as to whether because the discrimination in this case was subjected workplace abusive be- pervasive as severe or as some of those cause of his race and his sex. cases in discrimination, which we found Vasquez has no remedy. The issue is not whether the discrimination was as severe B. County’s Complicity in the pervasive cases, as in other but whether Harassment presented has sufficient facts to majority overlooks the actions of have-his by jury. case decided - Vasquez’ employer in analyzing his hostile Here, Vasquez proffered evidence that work environment claim. subjected he was to “derogatory racial superiors failure of his anything to do insults,” [and sexual] which were directed stop remedy or to the known harassment Allen, personally. 165 F.3d at 410- by Berglund is a violation of Title VII 11 (reversing summary judgment for the and of itself. employer a on hostile work environment that,

claim We “[b]y have held employee’s superiors tolerating when the sexu- told him that al lazy “he was harassment its employees, like rest of his people and that why they employer are all in adversely deemed to have prison,” “I’m writing your up, black changed ass terms their

905 Potter, Id. at 1192 to end the harassment.” v. ed of Title VII.” Swenson violation Cir.2001) (citations omitted). Rather, (9th 1184, (citing Leeds’ threat 271 F.3d Mateo, only to to transfer demonstrated City v. San Brooks of Cir.2000)). (9th employer “If fails Berglund employ- the him and that their both learning of action after corrective the harassment to contin- permit to take er would racially] harass- sexually[or fact, employee’s In the lack of corrective action ue. conduct, inadequate or takes ing continued to Berglund, who emboldened harasser to continue emboldens the statements, discriminatory make further misconduct, can be employer the [her] suggestion derisive that Vas- such as her offending the have ‘adopt[ed] deemed to “good” the field was transfer because quez results, they if had quite as and its conduct “circum- Under these Hispanics. for affirmatively as the em- authorized been stances, by employer non-action the the ” (last altera- Id. at 1192 ployer’s policy.’ acquies- fairly can be characterized City Faragher v. original) (quoting tion i.e., cence, changed the terms and having 775, 789, Raton, 118 S.Ct. Boca 524 U.S. include put- to conditions (1998)). In 141 L.Ed.2d such from other em- ting up with harassment cases, “adequacy employer’s of the it is the Brooks, at 924 n. 4. ployees.” underlying not the co-worker’s response, short, Vasquez subjected was to ex In to be discrimina- alleged that is behavior” epithets, as well as plicit racial and sexual (identifying relevant con- Id. at 1191 tory. by Berglund. harassment Wheth ongoing plain- whether the determining duct sufficiently was severe er the harassment barred). tiffs claim was time working to constitute a hostile pervasive Here, direct Vasquez’ both Leeds and be left under Title VII should environment (“French”), were French supervisor, Star Further, jury to determine. to the discriminatory con- Berglund’s aware of exacerbated, employer Vasquez’ inaction of fact, duct, stop it. nothing but did corrected, hostility rather than concerning grievance filed a when Supreme Court stated workplace. As “typi- that he had a statements Berglund’s Oncale, impact real social “[t]he attitude,” in- Leeds Hispanic cal macho often on workplace depends behavior only step she formed circumstances, surrounding constellation situation was remedy would take to are relationships which expectations, cottage. Turquoise him from the transfer recitation of by simple fully captured Further, that he could avoid only way per acts physical or the the words used by withdrawing griev- the transfer was 81-82, 118 S.Ct. formed.” 523 U.S. ance. circumstances, a totality of the Under de- testified at her French conclude that Vas jury could reasonable encouraged Vasquez that she had position ongo subjected pattern to “a quez could away from to transfer severe harassment ing persistent not. why he would She not understand em [his] conditions of to alter the enough God, my pain let the to him: “Oh lamented RR Passen Morgan Nat’l ployment.” enjoy the you Do Stop pain. end. Cir. ger Corp., — Thus, fully aware of French was pain?” 2000), grounds, on other part rev’d in Vasquez, harassment of but she Berglund’s --, 153 L.Ed.2d 122 S.Ct. U.S. hostility of the nothing to alleviate the did omitted). (citations (2002) In the alterna situation. find that the tive, jury could a reasonable employer stop Vasquez’ failure of took “correc- Leeds nor French

Neither and condi- “changed the terms harassment “reasonably calculat- that was tive action” put- to include [his] tions Berglund. from

ting up harassment”

Brooks, at n. 4.

IV. ConClusion VII, employee an

Under Title has

“right in an environment free from to work intimidation, ridicule,

discriminatory Bank, FSB., Meritor Sav.

insult.” Here, 2399. 106 S.Ct.

U.S. proffered evidence that he was sub-

has

jected adverse sex,

because of his race and as well his

protected proffered activities. He also evi- subjected

dence that he was to an abusive male, Hispanic

workplace because

and that failed to do employer anything proffered

about it. The evidence is suffi- summary judgment,

cient to survive treatment,

Vasquez’ disparate claims of environment,

hostile work and retaliation go jury. Accordingly,

should to a I dis-

sent. America,

UNITED STATES

Plaintiff-Appellee, GONZALES, Defendant-Appellant.

J.R.

No. 00-10514. Appeals,

United States Court of

Ninth Circuit.

Argued and March Submitted Sept.

Filed

Case Details

Case Name: Francisco Vasquez v. County of Los Angeles, Erroneously Sued as Los Angeles County Board of Supervisors

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 30, 2002

Citation: 307 F.3d 884

Docket Number: 00-56803

Court Abbreviation: 9th Cir.