*1 сoncluding not err in district court did George McGINEST, Plaintiff- liability
Key was immune from as direct- Appellant, fiduciary underlying If the ed trustee. itself is not violation of direction ERISA, compliance the directed trustee’s CORP.; Biggs, Mike GTE SERVICE cannot serve as a basis
with that direction Defendants-Appellees. HBOC, liability. In re McKesson See 31431588, at Litig., Inc. ERISA 2002 WL No. 01-57065. (“Here, alleged *12 no are that would facts Appeals, United States Court of to a conclusion that knew give rise Chase Ninth Circuit. the investment directions received imprudent, the McKesson Plan were Argued and Submitted Dec. any knowledge of the Chase had HBOC Filed March irregularities, accounting abusing Plan Fiduciaries were McKesson continuing to fund the
their discretion pursuant Plan to the Plan
McKesson facts, such is not
terms. Absent Chase
liable, non-conclusory allega- and absent facts,
tions of those Chase should not have claim.”). against defend
III. CONCLUSION Key
Because the Union and are neither fiduciaries, they
fiduciaries nor de facto
cannot be found under liable ERISA. upon alleged,
Based the facts the Oremet comply
Defendants’ decision to with the following terms of the Plan
lawful
merger entirely consistent with fiduciary requirements.
ERISA’s The dis-
trict court’s dismissal of Plaintiffs’ claims proper.
AFFIRMED. *3 Hills, CA, plain- for the
Serlin, Woodland tiff-appellant. P. and Thomas L. Nutter
Jennifer Green, Los IV, & Epstein, Becker Brown CA, defendant-appellee. Angeles, *4 REINHARDT, Before: PAEZ, O’SCANNLAIN, and Circuit Judges.
PAEZ, Judge: Circuit McGinest, an African-American George Corporation of GTE Service employee for (“GTE”), under Title VII sued racially work environ- of a hostile creation dis- ment, due to racial promote failure crimination, due promote failure and claims that GTE retaliation. racially hostile work environ- created upon perpetration both its ment based to a adequately respond its failure to and that occurred large number of incidents support year period. over a fifteen claim, McGi- work environment his hostile danger- in placed that he was alleges nest race, of his working conditions because ous pay avail- bonus prevented collecting coworkers, non-African American able to and insults racial forced to endure taunts coworkers, subject- and and by supervisors bathrooms graffiti GTE’s ed to racist Additionally, McGi- on switch boxes. and promotion that he was nest claims denied retalia- 1998 due to his race late complaint; GTE filing tion an EEOC promote it was unable to responds hiring to a him freeze. due court granted The district The court found that Associates, judgment to GTE. Cohn, & A. Mancini David hostile work Serlin, comprising & the incidents Encino, CA; M. Benedon Gerald sporadic, environment claim moving party. Hawaii, Lam v. Univ. of part adequately the most remedied. 40 F.3d n. 2 Moreover, it found McGinest was un- produce
able to sufficient evidence that A. Hostile Work Environment GTE’s stated for failing promote reason McGinest describes a number of events him pretext. was a practices, which alleges cumulative- We rеverse the district court’s dismissal ly created a hostile work environment. of the hostile environment and disparate These events fall roughly into two catego- treatment claims. The district court re- ries: some involved discriminatory treat- questions solved numerous factual in favor through actions, ment concrete while oth- GTE, distinguish failed to between su- ers involved written and oral derogatory pervisors and in evaluating coworkers statements. liability, fully did not consider impact the cumulative of the events that 1. Concrete Actions occurred. Because McGinest has estab- *5 genuine lished issues of fact re- material Events Involving Supervisor Jim Noson garding his hostile work environment supervised Jim Noson McGinest for five claim, as question well as on the of wheth- years, Beach, or six at a facility in Long er the denial of the promotion prompt- was in ending early During 1990s. this by motive, ed a discriminatory these time, Noson in engaged numerous acts of claims must be remanded. racial harassment directed toward McGi- McGinest has to prima failed establish a nest. Although majority of these inci- retaliation, facie case of and so we affirm dents were not accompanied by explicit the district court’s dismissal of this claim. comments, racial McGinest testified at his deposition Noson’s behavior “any and
I. comment that my he was made because of McGinest, According race.” to Noson BACKGROUND forced dangerous McGinest to work under George is an McGinest African-Ameri- proper conditions or without equipment, GTE, can employee of subjected telecommunica- and him to obscene and demean- company.1 tions has worked for ing language. He When McGinest was re- years, for 23 and has to sponsible continued do so project, for a Noson would not during the course litigation. provide of this him McGi- with sufficient crew members lineman, initially nest was hired as a to safely perform job. Noson also subsequently an has worked as outside indicated his desire to fire McGinest on plant occasions, construction worker and relief super- several specifically stated visor. At GTE facilities which that provoke he wished to into McGinest worked, McGinest has he has been one of fighting with another worker so that he few African-American employees. occasion, Be- could fire both of them. On one cause this case was decided on Noson wearing noted that was McGinest judgment, chain, we gold “only evaluate facts drug commented McGinest, light most favorable to the non- gold dealers can afford chains.” nice Verizon, Although by GTE is owned we now which it was sued. continue to refer to it name under removed the overtime to have only was also aimed conduct abusive Noson’s repeatedly complained McGinest and Roberts. Ketchum, coworker a white Matt treatment. McGinest testified about of McGinest. friend the blunt “received although Ketchum McGi- Obey When Coworkers’ Refusal too, was directed it still problem Supervisor nest Was Relief percent .... my race me because Long moved from me, he wouldn’t time, with [ ] if he wasn’t Upon Huntington Beach. facility to Beach bashing.” the same receive with cowork- arrival, he had difficulties his problem had Any time that supervi- under his to work refused ers who complaining *6 ny vehicle that states McGinest McGinest. on the driving time was of his percent to his com- response a never received he safety. for his freeway, he was concerned plaint. garage to the writing request He sent Supervisors Overtime Relief for garage but replaced, the tire to have to non-African-Ameri- From 1995 nothing that there replied was mechanic received overtime supervisors can relief his tire. He also informed wrong with the up for early to set they arrived pay when Roberts, need to about the Don supervisor, occasions, su- relief some their On shift. that “the tire, said Roberts replace the en- to claim an permitted pervisors were money on any spend company wouldn’t they arrived hour of overtime when tire request After McGinest’s any tires.” for their up set early to just five minutes denied, tire to he showed repair was that until the acknowledges shift. GTE agreed who supervisor, another Begg, manager, Mike new arrival tire looked bald. that relief rule an unwritten there was events, weeks after these to three Two overtime for got an hour supervisors was driv- blew out while the tire that even McGinest testified each shift. a wall. into he crashed ing the vehicle and arrival, con- supervisors some Begg’s after injuries at the treated pay, howev- “bonus” overtime get tinued to had injured he leg was and hospital. His Roberts, Don er, supervisor, a neck brace. wear any him claim to allow refused everyone testified almost when he McGinest actually worked overtime that bеtter in vehicles driving around with chal- supervisor. awas relief white em- that when explained He tires. for sev- treatment lenged differential fixed, they get something ployees “want[ ] submitting timesheets paychecks, eral white em- example of a worked, it,” cited an and that he overtime reflected the ployee who had requested new tires I went to management with several differ- around the had, same time that McGinest ent things and nothing changed, over and but who obtained them. had Another co- again.” over worker, Brand, agreed the garage Rather, a complaint McGinest filed with mechanic and the foreman seemed to have the EEOC. Upon receiving a call from the particular problem with three black em- July 1997, EEOC in human resources ployees, McGinest, one whom was not- manager Jeff Nakamura began an investi- ing that they “continuously George treated gation of the incident. Nakamura found in a de[]meaning [McGinest] and[conde- Hughes’s denial this comment oc- scending] my presence.” manner in Brand plausible. curred Based on this belief and testified that the most part they “[f]or the EEOC’s refusal provide him with seemed pretty good myself, be with witness, the name of the Nakamura did ... happen white, [others] we to be pursue the investigation. Nakamura could have been racial. It could have been testified that he years waited two to reini-
just personality.” tiate the investigation “because meantime I thought agency would Derogatory Racial Slurs Com- cooperative by sharing with me the
ments name of the witness so I could do a thorough Derogatory by Statement Coordinator investigation.” Once Nakamura did re- Hughes Tom open investigation, he learned the May Tom Hughes called McGi- name of the witness interviewing sever- nest “stupid nigger” face, epithet al employees. Brand, witness, After was overheard Brand. Hughes confirmed that epithet used, had been had referred McGinest on other occa- Nakamura determined that disciplinary ac- sions brain,” as “stupid” “sparrow tion should despite be taken Hughes’s con- McGinest, had told “you stay should in tinued denial. Hughes was counseled Long Beach you where belong, your against using words, such shown video kind.” *7 harassment, on sexual and received a dis-
McGinest did not report May 1996 ciplinary memo.2 allegation There is no incident immediately because he was so Hughes that engaged in any objec- further enraged he that had to leave the building. tionable conduct following discipline. this The next day, reported McGinest to his by Supervisor Comment Ledbetter immediate supervisor, Deason, Gary that Hughes “always was calling me a name.” McGinest and Brand that in testified pursue he did not January a formal com- Ledbetter, Paul supervi- a plaint with sor, the management because of his was frustrated that McGinest and his futile, conviction it that would be “because crew were not able to perform a work 2. The memorandum read in nity, full: Affirmative Action and Diver- Workforce 15, 1999, sity. Any On June violations further this investigation was held nature you with regarding your could you racial result statement from GTE termination supposedly employee. made to another Network Services. Upon the investigation, disciplinary conclusion of This this will be re- memorandum your which you showed failure to adhere to moved if Com- have no further violations for a pany policy, period I have no but year. alternative to issue of one disciplinary you I your memorandum. am confident will succeed in You will be Company’s policy assistance, reviewed on the any efforts. If I please can regarding Equal Employment Opportu- GTE's feel free to see me. phone call until of this incident aware quoted immediately. They assignment Follow- representative. the EEOC who from guy colored other “The saying, as him De- questioned call, Nakamura I ing said when jump would here to work used did not that he claimed gone it’s DeLeon how Leon. shame a damn It is it. insult, a racial as this inci- Jemima” “Aunt reported intend McGinest downhill.” referring teasing nickname claims rather GTE but management. to dent slow- emphasized worked longer to a commercial no Ledbetter out syrup poured which the with ness had apparently also Ketchum bottle. by Coworkers Comments DeLeon, Naka- “Biscuit.” nickname Tal- occasion, Alex coworker one On ex- DeLeon’s that he found testified mura McGinest, “I’ll referring to said, madge in- nonetheless but plausible, planation man.” a Black I work before retire using phrase.3 stop to DeLeon structed Frick, said coworker, Jim Another contin- DeLeon allegation nois There dumb for that McGinest, “I refuse subsequently. phrase use the ued complained McGinest a bitch.” son Begg. and to Roberts incidents these about Racist Graffiti coworker the walls graffiti saw racist McGinest “Aunt Je- Ketchum called DeLeon Daniel stalls on in the restroom and men’s presenсe times in numerous
mima” included graffiti This occasions. multiple to McGi- referred also DeLeon McGinest. altered sometimes “nigger,” word a number “mammy” on as Ketchum’s nest right.” “white phrase “digger,” and co- a black McGinest of occasions. seeing the testified coworkers Other Jemi- “Aunt phrase note worker old “PONTIAC,” “poor meaning phrase laziness insult, connoting a racial isma” and, Cadillac,”4 in De- it’s a thinks nigger white, Although Ketchum and servitude. Although go home.” “nigger cember was comment that the explained restrooms, used the same managers McGinest, directed and was irk intended it ap- when painted not over was graffiti is friends he because at Ketchum disapproval public no action peared and employees. black taken. DeLeon requested particularly graffiti, racist racist, Similar found phrase because use in GTE present also was “nigger,” word response. you” told “fuck in the blockhouse switch boxes both the comment reported *8 year that one coworker noted A garage. supervisor Begg and Mike manager word History Month during Black and McGinest Roberts, supervised who poster out on was crossed “Black” any disciplin- if unaware DeLeon, was but The place. in its written “nigger” was resources Human was taken. action ary epithet until this displayed poster defaced apparently un- was Nakamura manager ex- he ... understood intelligent person, and originally from that DeLeon 3. GTE notes being was saying, and he actly he was what Cuba, been unaware have hence insult, racist.” although he has phrase racial years. States for over United in the been African-American Washington, Leigh less believ- explanation is somewhat DeLeon’s phrase, seeing this reported who coworker use uncontested light of able weeks before Moreover, complained for he stated “mammy.” phrase clearly racial painted it over. very GTE was "a that DeLeon testified McGinest finally coworker it removed three tion Installer Supervisor. ap- weeks later. plied for position, which would have been a promotion. He passed qualify- only graffiti mentioned this ing exam and was interviewed for posi- management occasion, one April around by tion Begg in October 1998. occasion, 1998. On this McGinest and a reported coworker to A1 Valle that GTE, According McGinest was select- “nigger” word appeared had in the bath- ed for position, Begg when contact- room, and Valle promptly spray-painted ed the human resources department Later, over it. supervisor when Roberts obtain salary authorization he was in- incident, learned about said, he “Oh by formed Casey Larson that there was a
well, I guess I’ll have to it again,” write salary/hiring freeze in place. Nakamura added, “Ah, and then why can’t just we all testified salary that the freeze was due to get along,” in reference to a statement GTE’s financial difficulties. Consequently, made Rodney King being after beaten another employee, Phalen, John Angeles Los police officers. Roberts moved laterally into the position. may not have been aware of precise However, GTE was unable to produce nature of graffiti at the time of these any documentation verifying that there comments, as there is testimony that he salary freeze, was a and Phalen himself merely told that was condescending. testified that he was unaware that there Following this event McGinest “basically freeze, was a despite the fact that it was stopped using this bathroom ... I because allegedly the reason for his transfer. GTE am offended and disgusted seeing claims that it is salary common for freezes “N” word written the bathroom—-I implemented without written notifi- get would upset if I were to see it written.” cation. The record does reflect how “nigger” word graffiti other racist large operation an time, was at this have continued to appear in the bathroom but at least 175 individuals were employed since this incident. in the yards three supervised by Begg. Policy Antidiscrimination The decision not to promote McGinest Although GTE claims that it has a “zero occurred approximately year and a half policy tolerance” fOr discriminatory con- after McGinest filed his EEOC complaint. duct, its written policy, appears which McGinest notes that African Americans have adopted been says nothing GTE, are underrepresented at particularly about zero or about any tolerance ramifica- in supervisory positions, and claims that it tions for such conduct. Nor does the writ- is difficult for African Americans to ad- policy ten detail steps what employee vance. the Huntington yard, Beach should follow if employee feels she or where worked, five or six out of subjected has been to discriminatоry employees American, were African conduct, stating only, you “If ques- none supervisors. tions concerning equal employment oppor- *9 tunity, discrimination, or affirmative ac- McGinest initially a complaint filed with tion, discuss them your 3, with supervisor or EEOC on June con- After human resources representative.” ducting an investigation, the EEOC deter- mined that the supported find- a B. Failure to Promote ing that “respondent acted in violation of In September 1998, GTE vacancy a had Title VII of the Rights Civil Act of 1964.” in the position of Outside Plant Construc- McGinest an filed additional complaint re- 1112 summary grants readily court too a the when After promote. to failure garding providing of the risk it runs judgment, notice, McGi- to Sue Right issued
EEOC discriminatory behav- for shield protective Begg. Mike supervisor and sued GTE nest has determined society our ior summary judg- granted court district extirpated. be all claims. as defendants to the ment judgment timely appealed III. appeal district not GTE, did for Begg. against claim of his dismissal court’s ENVIRONMENT WORK HOSTILE Act Rights Civil Title Under VII II. employment 1964, “an unlawful it is of discrimi ... employer an practice DISCUSSION respect to individual any against nate actions vio that GTE’s alleges conditions, terms, or compensation, his from free invidious right lated of such because employment, of privileges raises He workplace. § discrimination 2000e- 42 U.S.C. race.” individual’s 1) cre Title VII claims: separate three encom (2003). 2(a)(1) prohibition This environ racially hostile aof ation envi a hostile work of creation passes of 2) on account promote ment; failure guaran ronment, VII’s violates Title which 3) on account promote race; failure and in an environment to work right of “the tee de novo review intimidation, We retaliation. of ridi discriminatory free for sum Bank, of a motion grant FSB court’s district Sav. cule, Meritor insult.” and v. Columbia Schnidrig 2399, judgment. 65, mary 57, Vinson, S.Ct. 477 U.S. v. (9th 1406, 1408 Cir. Inc., Mach, long (1986). have F.3d “Courts L.Ed.2d 1996). racial in which workplace that a recognized a form constitutes hostility pervasive evaluating motions In Graphic Com v. Woods discrimination.” employment in the context judgment (9th 1195, Cir. munications, F.2d discrimination, emphasized we 1991). em an zealously guarding importance summary judgment, trial, since discrimi to survive In order to a full ployee’s right aof existence must show difficult frequently are claims nation 1) whether as to dispute factual of the evidence airing genuine a full without prove would man credi African-American reasonable to evaluаte opportunity and sub- objectively so workplace See, e.g., Schni find the witnesses. bility of the to create an racially hostile Lam, jectively 1410-11; 40 F.3d drig, 80 2) environment; working abusive Com v. Merced Sischo-Nownejad 1563; re- adequate to take GTE failed 1104, 1111 whether Dist., 934 F.2d College munity v. action. Steiner disciplinary medial has Supreme Court theAs Co., 25 F.3d Operating Showboat work impact stated, real social “The Faragher (9th Cir.1994); see also 1462-63 a constel depends often behavior place 775, 787, Raton, 524 U.S. Boca City circumstances, ex surrounding lation (1998). 141 L.Ed.2d which are relationships pectations, recitation simple aby fully captured Envi- Hostile Pervasive A. Severe per acts physical or the used words ronment v. Sundowner Oncale formed.” Offshore if an environment determining 81-82, S.Ct. Serv., Inc., 523 U.S. VII, we Title to violate result, so hostile as (1998). aAs 998, 140 L.Ed.2d
1113 whether, consider in light of “all cir the plaintiff A must show that the work cumstances,” Nichols v. Azteca Rest. En environment was both subjectively and ob ter., 864, (9th 256 Cir.2001), F.3d 872 the jectively Nichols, hostile. 256 F.3d at harassment is “sufficiently severe or per Subjective 871-72. hostility is clearly es vasive to alter the conditions of the vic tablished in the instant case through tim’s employment and create an abusive McGinest’s unrebutted testimony and his working Meritor, environment.” 477 U.S. complaints to supervisors and to the 67, 106 (internal at S.Ct. 2399 brackets and EEOC. Id. at 873.
quotation removed). marks The Supreme In evaluating
Court objective has the followed a path” “middle hostil ity of environment, a work regard to the level of hostility or factors abuse be considered necessary include the “frequency establish hostile work environment. discriminatory Inc., conduct; Harr is v. Sys., its severity; 510 Forklift 17, 21, 367, U.S. whether it 114 is S.Ct. 126 physically L.Ed.2d 295 or threatening hu (1993). Simply miliating, causing an aor mere employee utterance; of offensive fense based on an isolated whether it comment unreasonably is not interferes sufficient to with an employee’s create actionable performance.” harassment Nichols, under However, Title VII. Id. F.3d at harass 872 (quoting Harris v. ment need not cause diagnosed psychologi Sys., 23, U.S. 114 S.Ct. Forklift 367). cal 22, Id. at injury. 114 S.Ct. It required 367. is “The level of severity or enough “if such hostile pollutes conduct seriousness varies inversely with per workplace, victim’s making it more vasiveness or frequency of the conduct.” difficult (internal her job, for to do her pride take Id. quotation omitted). marks work, her and to to stay desire on in her Considering the facts in the light most Steiner, position.” F.3d at McGinest,5 favorable to it is clear that the 5. GTE contests McGinest's version of the regarding supervisor relief overtime.” How However, facts. ever, disputes is axiomatic that in both of these pro instances McGinest about material credibility facts and determi- vided deposition testimony detailed describ trial, nations must be resolved not ing on sum- personal regarding observations mary judgment. See, Lam, e.g., 40 F.3d at manner in which employ African-American Indeed, Supreme has Court in- ees were disfavored in relation to em white structed that at summary judgment stage, ployees. testimony This did not consist of ''[t]he evidence of the non-movant to be "conclusory allegations,” mere would which believed, justifiable and all inferences are to be insufficient to defeat a motion sum in his drawn Liberty mary favor.” v. judgment. Anderson Corp. Nat’l Steel v. Golden Inc., 242, Lobby, 255, Co., 496, Eagle S.Ct. (9th Ins. 121 F.3d Cir. 2505, (1986). 91 L.Ed.2d 1997). Rather, The district testimony McGinest's would court, contrary to princi- these fundamental suffice to enable a reasonable trier fact ples, accepted allegations GTE's many occurred, conclude that discrimination had the events attested to McGinest either did without need corroborating further not occur McGinest described were not evidence. See United v. States One Parcel of racially example, motivated. although For Prop., Real (9th 904 F.2d 491-92 Cir. McGinest and 1990). trial, others testified that garage At might trier fact deem foreperson treated employees black testimony worse such credibility, to lack and disre employees, than white the district gard court em- it. ruling on a when phasized deponent's one acknowledgment motion, judgment the district court foreperson's that the against animus empowered black credibility to malte determina employees may have simply per- been due weigh tions or conflicting Liberty evidence. sonality. Similarly, Inc., district Lobby, 2505; court con- 477 U.S. at cluded that "there is credible Indus., Inc., no evidence of see Koracorp also SEC application any differential 1978). 'unwritten rule' Cir. *11 1114 necessary mainte received vehicle his to sur are sufficient described incidents danger in to work forced He was nance. Ac summary judgment. for a motion
vive
insults
barraged
situations
ous
ain
involved
McGinest, he was
cording to
others, Supervisor
among
by,
abuse
because, due
accident
automobile
serious
he was
two-year period,
aOver
Noson.6
garage
supervisor
race,
both
to his
pay
collecting overtime
from
prevented
that
to ensure
unwilling
personnel
to
ability
that
worked.7
before,
the district
neither
noted
as
regarding Noson
allegations
the
6. Whether
of the
the benefit
parties had
the
liability
nor
court
pwposes
at trial
admissible
are
of
for
a
Morgan. As
in
decision
Supreme Court’s
on
principal
case
question.
a close
under-developed in
result,
record
Corp. v.
the
Passenger
Railroad
is National
issue
Therefore,
the district
2061,
upon remand
101,
regard.
153
S.Ct.
122
U.S.
Morgan, 536
wheth-
instance
the
may
in
first
decide
court
(2002);
the district
court
er,
a case
L.Ed.2d
regarding
allegations
Morgan, the
its
issued
under
when it
of
the benefit
not
did
they
that
sufficiently
such
related
ruling.
are
Noson
summary judgment
liability
of
purposes
for
be considered
can
"consideration
that
held
Court
Morgan, the
In
be
so,
and,
they
nonetheless
whether
should
if
work environ-
scope of a hostile
the entire
of
the
even if
that
We note
equitably barred.
alleged out-
claim, including behavior
ment
for
be considered
allegations cannot
permissible
period, is
Noson
statutory time
the
side
they
liability,
nonetheless
long as
of
liability, so
assessing
purposes
of
purposes
limited
other
at trial for
be
hostile environ-
admissible
contributing
still
to that
act
an
context
in the
statutory
Morgan notes
As
time
purposes.
the
within
place
takes
ment
acts,
2061,
does
discriminatory
the statute
101, 105,
S.Ct.
discrete
period.” 536
out,
prior
using the
points
employee
dissent
As the
“bar
not
106.
L.Ed.2d
in
evidence
guidance
background
precise
as
acts
[untimely]
offer
not
Morgan
does
itself
113,
U.S. at
timely
that falls
an act
a
claim.”
support of
whether
evaluate
how to
on
England,
2061;
Lyons v.
nonethe-
can
see also
statutory
period
time
S.Ct.
the
outside
Cir.2002) (holding
1092,
liability
Dis-
purposes.
considered
be
less
permitted
a
1127,
implies
Morgan
"appellants
that
Morgan
are
n. 2.
Op. at
under
that
sent
dis-
part
pre-limitations
be
the
would
evidence
previous incident
offer
to
claim,
the
in
assignment scheme
environment
criminatory detail
work
same hostile
claims”).
time-barred,
The dis-
timely
no relation
"had
if it
of their
prosecution
therefore
intervening
acts,
that
was
McGi-
there
conclusion
the
reaches
the
itself
later
sent
to”
at
sur-
536 U.S.
claim
employer.
environment
the
work
action taken
hostile
nest's
thus,
allegations
Additionally,
even
judgment and
2061.
S.Ct.
vives
time-barred,
terms,
prema-
but are
be
ordinarily
it would
own
dissent's
would
that
work envi-
single
type
hostile
evidence
a
part of
to limit
nonetheless
ture
equita-
claim,
subject
his hostile
support
in
present
still
at
are
trial
ronment
can
Indeed,
waiver,
equitable
the dissent
estoppel, and
claim.
environment
ble defenses
work
allegations
Noson
suggest
S.Ct.
that the
tolling.
appears
Id.
light
background
most
Here,
viewing
evidence
be considered
even
could not
McGinest,
possible
environ-
it is
McGinest's hostile
favorable
early
Op.
1990s
at 1127-28.
in the
Noson
Dissent
concerning
See
events
claim.
ment
contrary
prac-
employment
position run
“part
only
one unlawful
would this
are
Not
Id.
also would
"single
Lyons,
claim.”
it
giving
precedent
rise to
our
tice”
harassment
Feder-
role under
court’s
Noson's
supplant
racist plaintiff. than the group different the same person menting a “reasonable standard). use of or color” question and race gender beyond *13 It is and de highly offensive is “nigger” word actions or comments Racially motivated vio history of racial a evoking meaning, mildly offen only or innocent may appear This and subordination. lence, brutality, of the a member is to one who sive and most offensive “perhaps word intoler reality be in group, targeted a ... English, in slur inflammatory racial under threatening when or ably abusive bigot and racial hatred of expressive word plaintiff of a perspective from stood F.3d 270 Corp., v. Potomac Swinton ry.” group. targeted of is a member who Cir.2001) original) in (9th (ellipsis 794, 817 attitudes race-based of omnipresence “The omitted); Daso see also marks (quotation Amer of black lives in the experiences and Inc., School, F.Supp.2d 181 The v. Grafton events nonviolent even [may cause] icans (“The ‘nigger’ (D.Md.2002) word 485, 493 threaten degrading, interpreted as to be utter offensive than [a]’mere more Paper v. Int’l Harris offensive.” ing, and lan English in the No word .... ance’ (D.Me.1991) 1509, 1516 Co., F.Supp. 765 terri as or loaded odious as guage is of racial violence “instances (noting Foundry Div. NLRB v. history.”); able of appear might which violence threatened 631, n. 5 Inc., 635 Indus., F.3d 260 Alcon are, to ‘pranks’ as mere observers white a ‘nigger’ is Cir.2001) (“That the word (6th threatening, of observers, evidence black debatable.”). no sin “Perhaps is not slur part attitudes”), in vacated pervasive condi alter quickly can more gle act (D.Me. F.Supp. grounds, other an abusive create and employment of tions “racial (discussing id. 1991); see also of an use than the working environment conduct or nonviolent comments jokes, ‘nig as such epithet racial unambiguously likely more ... are observers which white of his the presence in supervisor ger’ by inci nonthreatening isolated dismiss Rodgers Western- subordinates.” Jersey New v. State dents”); Dickerson 668, Co., F.3d Ins. Southern Life 605, Serv., F.Supp. Human Dep’t of quota Cir.1993) internal (citations and (“The mention (D.N.J.1991) mere omitted). verbal direct The marks tiоn histo long and violent KKK invokes prevalence and on McGinest attack any detrimentally affect ry sufficient evocative of slur a racial containing graffiti as the the same race person reasonable signifi hierarchy are racial and lynchings “Title original). (emphasis plaintiff.”) evaluating the exacerbating factors cant discrimination, sub no racial tolerates VII hostility.9 the racial severity of Douglas McDonnell otherwise.” tle or there court observed 801, district Green, 411 U.S. Corp. v. for a animus racial little evidence (1973). By consider 36 L.Ed.2d described incidents of the severity of number the existence ing both con- approval McGinest, noting with aof perspective from discrimination necessary associa- nois race, “there tention plaintiffs person reasonable drug Americans African between tion of discrimination forms recognize we has Circuit Third dealers.” over hurtful, yet are real “the use of persuasively explained per- solely if considered looked hos- racial also motivated certainly Moreover, might of fact a trier that, Hughes’ tility. use of light of conclude slur, remarks abusive his other racial
1Í17 ” can, ‘codewords’ under circumstances such' Cadillae’ was a “racially joke”); offensive as we here, encounter violate Title VII.” Jones v. City Park, Overland 1994 WL Aman v. Cort Furniture Rental Corp., 85 (D.Kan.1994) (recognizing refer- (3d The Third ence to plaintiff as “Aunt Jemima” as one Circuit went on to note: factor in environment). hostile GTE’s at-
[A] jury tempt reasonable could to deny possible conclude racial overtones the intent to of many discriminate is implicit in the comments made to McGi- these comments. nest or There are no uttered in talis- presence indicates a expressions manic willful which must be in- blindness to racial stereotyping.
voked as a condition-precedent
to the
The district court discounted the
application of
designed
laws
to protect
insults and hostile actions directed at
against
discrimination.
The words
by
both Noson and DeLeon, rea
themselves are only relevant for what
soning that
Ketchum,
because
a white
they reveal—the intent
the speaker.
worker, was also targeted,
this behavior
A
jury
reasonable
could find that state-' did not constitute actionable racial harass
like
ments
the ones allegedly made in ment.' The district court
in
erred
ignoring
this case send a сlear message and carry
these interactions
for several
reasons.
the distinct
tone of racial motivations First,
if racial
pervades
hostility
a work
and implications. They could be seen as place, a plaintiff may
establish
violation
conveying the message that members of
VII,
of Title
even if such hostility was not
a particular race are disfavored and that
directly targeted at
plaintiff.
See, e.g.,
members of that
are,
race
therefore, not Woods,
An employer’s
court to
liability
evaluate
harass
defense
if
ing
conduct
is
is
raised
evaluated
differently
remand. See
when
Smith v.
Mash,
harasser is a supervisor
as opposed
Swinton,
Thus,
coworker.
for the
F.3d at
purposes
of summary judg
An employer is vicariously
ment
liable
we
for a
assume that GTE is liable for the
hostile environment
created
supervi
offensive
comments
coordinator
sor, although such liability
subject
to an Hughes13 and supervisor Ledbetter, su
affirmative
Nichols,
defense.
256 F.3d at pervisor Roberts’ denial of bonus pay for
877 (citing Faragher
City
Boca Ra McGinest’s
overtime while a relief supervi
ton, 524
U.S. at
141 sor and refusal
provide
for McGinest’s
662).
L.Ed.2d
“If, however, the harasser
automotive safety, and the derogatory
merely
a coworker,
plaintiff
comments and exposure to hazardous in
prove that
...
the employer
knew
dustrial
by supervisor
situations
Noson.
should have known of the harassment but
*16
did not take adequate steps to address it.”
2. Liability for
by
Actions
Coworkers
Swinton,
Furthermore, the reactions of edly manage- physically endangered or financially upon ment learning about graffiti indi- harmed through the actions of several oth- cate that the incident was not taken seri- ers. On the us, record before GTE took ously. After being informed about no action to ensure that this level of graffiti, supervisor joked Roberts first harassment did not continue for the rest of he himself was responsible it, and then MeGinest’s tenure at the company.
added an additional “humorous” comment that had racial overtones.15 Rather than IV. remedying the harassment, Roberts’ be- havior appears to have added it. FAILURE TO PROMOTE GTE’s remediation of DeLeon’s racial The remaining two claims raised gives comments also cause for concern. McGinest involve GTE’s promote failure to Although counseling and a warning may him to position of Outside Plant Con- suffice if successful in stopping the harass- struction Installer Supervisor in October ment, Intlekofer, see 973 F.2d at alleges that he was de- did not issue this warning until McGinest nied this promotion because of racial dis- had a complaint filed with the EEOC. In crimination and in retaliation for com- fact, McGinest had informed his manager plaint to the EEOC regarding the hostile or immediate supervisor of the events in- work environment. volving Noson, Hughes, DeLeon, and oth- ers, to no avail. In each of cases, these A. Racial Discrimination GTE did not respond until McGinest initi- *18 ated formal proceedings. This delay does VII, Under Title an individual suf nоt satisfy Title VII’s requirement of disparate fers treatment “when he or she prompt See, remedial action. e.g., Fuller, is ‘singled out and treated less favorably 47 1528; F.3d at Intlekofer, 973 F.2d at than similarly others situated account 778; Steiner, 25 F.3d ” at 1464. of race.’ Jauregui City Glendale, v. of Taken as whole, a GTE’s responses 1128, (9th 852 F.2d Cir.1988) 1134 (quoting were troubling for another reason. We v. Gay Waiters’ Dairy & Lunchmen’s Un have been clear that in order to ion, be ade- 531, (9th 694 F.2d 537 Cir.1982)); 42 us, record before GTE did none along?” of these which was itself an allusion to black- things. strife, white racial the evidence before us im- plies may that Roberts well have understood 15. Since responded Roberts to news of the the graffiti. nature of the objectionable graffiti by quoting Rodney King's question, “Why can’t we just get all 1122 17, 77 S.Ct. 500, n. 508 Co., 352 U.S. R.R. to (2003). 2000e-2(a) Failure § U.S.C. the (1957)). Because 493 443, 1 L.Ed.2d dis- of manifestation common ais
promote the distinction that held Court Dep’t Supreme See Texas of treatment. parate evidence circumstantial and Burdine, direct between v. Community Affairs analytical determining what to 1089, is 67 L.Ed.2d irrelevant 253, not resolve Carlsbad, we need apply, to framework City v. (1981); Warren prop- regarding Jauregui, Cir.1995); arguments (9th parties’ 439, 440-41 F.3d evidence. er characterization F.2d disparate a that establishes plaintiff in Costa “[T]he decision Our employer’s burden Douglas must show case treatment the McDonnell although may be intent discriminate, to “tool useful to is a intent shifting framework16 evidence.” circumstantial judgment summary inferred at the plaintiffs assist England New v. Domingo “noth- trial,” (quoting may Id. reach they so stage (9th Cir. 1429, 1435 Co., F.2d invoke Fish parties compels ing length debate 1984)). parties The presumption.” Douglas McDonnell di adduced McGinest whether question of responding Rather, when at 855. F.3d discrimi evidence or circumstantial rect motion, plaintiff judgment a resolution relevance nation, and how regarding a choice presented is analytical proper question case. her or to establish treatment disparate a by which framework McDonnell using the by proceed may un is confusion Their evaluated. claim may alternatively, framework, or Douglas proliferation considering the derstandable ev- or circumstantial direct produce simply question. on this law conflicting case discriminatory a demonstrating idence Palace, Desert v. Costa See motivated not than likely more reason law Cir.2002) (reviewing case 852-53 may succeed plaintiff (noting that Id. GTE. dе “quagmire a it as describing evidence- sufficient “other introducing by “morass”), “chaos,” characterization,” fies discriminatory circumstantial-of direct 90, 123 S.Ct. 539 U.S. aff 'd intent”). However, the Su (2003). L.Ed.2d McDon- applied court brought much-need district recently preme Court It determined when test. Douglas of law area nell clarity ed case facie prima Costa opinion established en banc our affirmed discrimina- racial due promote failure Palace. Desert pro- aof 1) is a member tion. held Court Supreme Costa, the quali- 2) class; for applied tected should evidence and direct circumstantial 3) rejected job; open fied “Circumstantial alike, noting: treated filling the 4) than rather job; and sufficient, but only inter- any of promoting position per- satisfying certain, be more also manager white transferred viewees, GTE *19 at 123 S.Ct. evidence.” direct than suasive legiti- a produced GTE position.17 into v. Missouri Rogers (quoting Pacific 2154 McDon pretextual. is reason articulated burden Douglas McDonnell Under 16. 802-804, 93 U.S. Corp., Douglas es- nell framework, first plaintiff must a shifting 1817. dis- S.Ct of unlawful case facie prima a tablish shifts then burden crimination. identical is not factor Although fourth legitimate, nondis- a to articulate employer Douglas, it McDonnell employed in the one em- If the the action. for criminatory reason flexible is a the test recognized widely is so, show must plaintiff ployer does mate, nondiscriminatory reason for the ac- explanation that a hiring freeze accounted tion, claiming that it was due a hiring its failure to promote him.
freeze. The concluded, district court how- McGinest, As
ever, argues, produce failed absence evi- of any documentation confirming dence indicating that given reason company hiring freeze was in place GTE pretext, during was a and thus granted sum- the relevant period time is sufficient mary judgment to GTE. raise genuine factual dispute as to Once the defendant produces evidence of whether the asserted reason pretextu
a legitimate nondiscriminatory reason to al. ‘Indeed, even if such decisions were
counter
plaintiffs
demonstration of a
commonly conveyed
yard
managers by
prima
case,
facie
the McDonnell Douglas' word-of-mouth, the fact that a company
“presumption of discrimination ‘drops out
the size of GTE does not
have memoran
”
picture.’
Reeves
dum,
v. Sanderson
meeting notes, or other evidence of
Prod., Inc.,
Plumbing
133,
U.S.
143,
hiring freeze or the financial difficul
whether he
relies
direct or circumstan McDonnell Douglas, 411
804-05,
U.S.
tial evidence of discriminatory intent
to 93 S.Ct.
(noting
possible,
methods
meet his burden. Under either approach,
pretext
demonstrating
include “treat
produce
some evidence ment of [the employee] during
prior
suggesting that GTE’s
promote
failure to
term of employment ... and [the employ
him was due in part or whole to discrimi
general policy
er’s]
practice
with re
natory intent, and so must counter
spect
to minority employment,” such as
prima
one and the
facie case described was
well as a news release
the California
necessarily
"not
applicable
every
respect to
Public Utilities Commission. These docu-
differing factual
situations.” McDonnell
that,
ments allegedly show
contrary to the
Douglas,
information regarding contention his for blacks”); support ing against discrimination of tern hismet discrimination, has McGinest (holding that racial 443-44 at Warren, F.3d 58 issue factual genuine “a showing of of material issue burden genuine a raised plaintiff discriminatory intent.” showing to by regard motive with employer’s as to fact were 1559. at Lam, employees 40 F.3d white less-qualified that racist with him, combined over promoted evidence); ene Berg and statistical remarks Retaliation B. Improvement Agric. Project River v. Salt pro VII Title 704 of Section (9th 1136, 1143 Dist., F.3d 272 Power & for employee an against retaliation hibits female absence that Cir.2001) (holding 42 discrimination. unlawful opposing establishing factor one supervisors (2003). discrimi 2000e-3(a) Like § U.S.C. promote). to failure for pretext the using may be shown nation, retaliation evidence “very Iittle[ ] held that haveWe shifting burden Douglas McDonnell of fact issue genuine a raise necessary to is facie prima a establish To framework. motive; any indi- employer’s an regarding VII, McGi- Title under of retaliation case may ... motive discriminatory cation protect to 1) acted that show nest must only be can that question a raise to suffice 2) adverse an rights; VII Title his Schnidrig, 80 fact-finder.” by a resolved taken thereafter action employment evidence, direct [the] “When at 1409. F.3d link 3) a causal him; and against than more circumstantial, consists Steiner, two events. the between existed a presumption, Douglas McDonnell the is case facie prima aIf 1464. at F.3d 25 exist always almost will question factual the shifts then established, the burden of nondiscrimi- a any claim respect with explana alternative proffer employer 934 Sischo-Nownejad, reason.” natory employee action, the which its tion Lam, at F.3d 40 1111; also see at F.2d rebut. attempt recognized, court district theAs uncertainty at case. Such close is a first the established has be re- stage judgment the facie prima prongs second' (“We Id. plaintiff. favor solved pre not has However, McGinest case.19 sum- to survive very little evidence require a demonstrate sufficient sented ulti- because precisely judgment mary complaint link between causal only be can one is question mate two Because promotion. denial inquiry’- ‘searching a through resolved a year a by separated events conducted appropriately is most one not establish does timing alone half, the record.”). finder, full upon fact by offer does connection, doubt cast оf factors a number Because v. Villiarimo See explanation. any other its explanation proffered upon enforce its VII to up Title EEOC, machinery set with complaint filing a By action employment adverse An provisions”). action quintessential engaged em likely deter Henderson, reasonably "is Ray v. one § 704. See protected activity,” (“As Cir.2000) protected (9th engaging ployees n. F.3d indicates, 1243; of a clearly, denial filing ... language F.3d statutory Ray, employ activ- adverse protected ais as an qualifies EEOC complaint promotion with Dalton, F.3d See, Bergene, F.3d v. e.g., Hashimoto ity.”); action. ment Mateo, meet- Cir.1997) (holding simply (9th City San 1141; Brooks activity protected counselor EEO ing “in participation it constitutes because
1125
Air, Inc.,
Aloha Island
1054,
281 F.3d
2061, 153
S.Ct.
L.Ed.2d
(2002),
(9th Cir.2002).
Thus, we affirm the
creates an unreasonable expansion of Title
district court’s dismissal of the retaliation
liability
VII
in the workplace, I must re
claim.
spectfully dissent from the opinion of the
court to the foregoing extent.
CONCLUSION
We reverse the district
grant
court’s
I
summary judgment on the first
two
Title VII prevents the establishment of
counts, and remand to the district court
a “hostile work environment” that becomes
for further proceedings. McGinest estab-
“sufficiently severe or pervasive to alter
lished the existence of
questions
material
the conditions of
employment.”
[one’s]
of fact
regard
with
whether
creat-
Bank,
Meritor Sav.
Vinson,
FSB v.
ed and failed to remedy a racially hostile
57, 67,
2399,
106 S.Ct.
Appellant shall an recover envi on appeal. costs ronment is ‘hostile’ or ‘abusive’ can be AFFIRMED in part, REVERSED in determined only looking at all the cir part, and REMANDED. cumstances.”); Fuller City Oakland, v. 1522, (9th Cir.1995) (“Hostili O’SCANNLAIN, Circuit Judge, ty [under Title VII] must be concurring part measured and dissenting in part. based on totality of the circum I agree that the court must reverse the stances.”). appraisal This includes consid grant of GTE’s motion for summary judg- eration “the frequency of the discrimi ment and remand for further proceedings natory conduct; severity; its whether it is on McGinest’s hostile work environment; physically threatening or humiliating, regrettably, however, I cannot concur in mere utterance; offensive and whether it the majority’s analysis, and thus dissent unreasonably interferes employ from the reasoning Part I disagree III. ee’s performance.” Harris, 510 U.S. with the court’s reversal of the dismissal 23, 114 S.Ct. 367. on summary judgment of McGinest’s dis- criminatory promote failure to claim and A
thus IV.A.; dissent Part I would affirm. But I agree do that we must However, before considering totality affirm dismissal on summary judgment of of circumstances, we must first deter- McGinest’s retaliatory to promote failure mine exactly which of the plaintiffs claims claim, and thus concur in Part IV.B. of the properly part form a inquiry. Be- opinion court’s as to result analysis. cause the court district dismissed this case I Because believe the majority’s opinion on summary judgment, we review — sidesteps Raytheon Hernandez, Co. v. the evidence in light most favorable U.S.-, S.Ct. L.Ed.2d plaintiff. 357 the Serv., T.W. Elec. Inc. v. Pac. (2003), essentially abandons Nat'l Ass’n, R.R. Elec. Contr. 809 F.2d 630-31 Passenger Corp. Morgan, 536 U.S. Yet even under this defer-
1126
§ 2000e-
U.S.C.
occurred.”1
practice
allegation
every
standard, not
ential
engage
not
course, must
we
5(e)(1). Of
every factual
value,
is
nor
face
at
taken
be
statute
this
of
interpretations
literal
overly
po-
impose
to
available
necessarily
claim
at
536 U.S.
Morgan,
See
limitations.
of
regrettably,
majority,
liability. The
tential
fact
simple
the
So
115-21, 122 S.Ct.
its
opposite,
the
assume
to
appears
discriminatory
alleged
the
of
some
that
suitability of
the
hardly considers
analysis
period
limitations
the
outside
occurred
acts
opin-
court’s
The
allegations.
McGinest’s
ad-
their
automatically preclude
not
does
all
that
presume
only
not
appears
ion
the en-
of
Rather, “consideration
mission.
allegation
every
true,
facts are
environment
work
a hostile
scope of
tire
envi-
work
a hostile
of
evidence
admissible
outside
alleged
including behavior
claim,
may be
liability
which
upon
ronment
permissible
period,
statutory time
the
sup-
legal
recognizable
nois
There
based.
liability, so
assessing
purposes
for the
approach.
this
port
hostile
to that
contributing
act
long as
precedent
of our
my review
Specifically,
statu-
within
place
takes
environment
kinds
two
at
are
least
there
indicates
105, 122 S.Ct.
Id.
period.”
time
tory
considered
not be
may
allegations
liabil-
as
judgment
environ-
work
hostile
particular
ity for
act “was
First,
distant
any
if
ment claim:
take
however,
appears
majority,
hostile environ-
same
of the
part
longer
no
extreme, implying
to an
concept
re-
cannot
employee
claim, then the
ment
within
occurs
single act
any
long as
so
R.R.
Nat’l
aet[].”
previous
cover for
limitations,
alleged acts—no
all
statute
Morgan,
v.
Corp.
Passenger
part
past
far in
matter how
—become
L.Ed.2d
118, 122 S.Ct.
environment
work
hostile
same
of the
amount
Second,
(2002).
claims
limita-
statute
It dismisses
claim.
are insuffi-
allegations”
“conclusory
mere
footnote,
explicitly
ain
argument
tions
Hernandez
consideration.
merit
cient
it is
conduct because
Noson’s
considers
Inc.,
Med.,
Spacelabs
part
as
functioned
that it
merely “possible”
principles
these
With
n. 6.
at 1114
Maj. Op.
claim.
same
of the
necessary to under-
it is
mind, I believe
controlling
apply
faithfully
duty
our
It is
numer-
of McGinest’s
review
careful
take a
Mor-
believe
do not
and I
precedent,
fairly judge
one
before
allegations
ous
low.
pitifully
so
can be
threshold
gan’s
Title
claim.
VII
strength
“possibly
majority’s
Indeed, I believe
standard eviscer-
claim”
same
of the
part
limitation.
Morgan’s
ates
involving
the events
urges that
es-
Morgan
contrary, I believe
To
dis-
excluded
must be
Noson
supervisor
relatively strin-
workable
tablishes
statutory scope
beyond
tant acts
... had
act
“if a [distant]
gent standard:
environ-
hostile
rest of
..., or for
acts
[recent]
to the
no relation
require
indeed
Title VII does
ment claim.
inter-
reason,
as certain
such
other
some
shall
this section
“charge under
that a
no
employer,
by action
vening
days
eighty
one hundred
filed within
environ-
same hostile
part
longer
employment
unlawful
alleged
after
2000e-5(e)(l).
§See
here.
vant
period
limitations
extends
statute
1. The
rele-
circumstances
days
certain
claim,
ment
*23
employee
then the
cannot re-
ed—in adjudicating a motion for summary
cover for
previous
acts.”2 Morgan,
judgment.
Morgan,
See
118,
environment claim “subject also remain to poses of establishing liability does not af- waiver, estoppel, equitable tolling fect Federal Rule of Civil Procedure 16 when equity so requires.” 121, Id. at 122 and the admissibility of stale evidence for (internal S.Ct. omitted). quotation other purposes. For example, an utter- ance, though time respect, With while the barred for opinion court’s purposes liability, may formally recognizes admissible language, challenge it fails the credibility apply of a it. witness majority The as a appears prior in- argue consistent statement. we need not See take Morgan Fed.R.Evid. seriously 613. because “neither the district court nor the
parties had the
of’
benefit
that decision.
But summary judgment is about estab-
Maj. Op. at 1114 n. 6. This is irrelevant.
lishing
Thus,
liability.
I must respectfully
Morgan imposes a rule of law establishing
disagree with the majority’s implication
particular
when a
may
fact
support a legal
that both Morgan and Lyons v. England,
And,
claim.
course,
duty
“[o]ur
is to
(9th Cir.2002)
Under comply enough to stringent standard the stat- beyond may extend environment dictates. Morgan’s related. it is period limitations ute of if if But S.Ct. See id. b claim, it must ato related is un same to that irrelevant
necessarily be
oc-
involving Noson
claims
*24
v. Data
Assocs.
See,
Eclipse
e.g.,
claim.
culminating in
1980s
late
the
curred
1114, 1119
Corp.,
General
by
requested
as
apologies,
dual
Noson’s
“irrel-
“unrelated”
Cir.1990) (equating
further
no
makes
GTE,
McGinest
in 1990.
time-barred
is
evant”).
evidence
So
No-
by
conduct
objectionable
of
allegation
be con-
cannot
Morgan standard
under
for-
The next
apologies.
since those
son
isit
because
judgment
summary
at
sidered
oc-
conduct
discriminatory
of
notice
mal
question
to the
relevant
simply
EEOC
his
filed
after
curred
conduct
unrelated
wholly
whether
him-
fact, McGinest
In
in 1997.
complaint
environment.
work
a hostile
amounts
any kind
no discrimination
alleges
self
evidence”
“background
very term
The
he claims
when
1990 and
between
because
context
little sense
makes
Con-
pay.
bonus
equal
denied
have been
discriminatory animus
“background”
no
less
no
possible,3
liberally as
as
strued
unrelated, irrele-
established
can be
suc-
elapsed between
1,500 days
than
may well
Such
activity.
vant
and
behavior
of Noson’s
resolution
cessful
past,
liability in the
triggered
have
Strikingly,
misconduct.
alleged
other
all
plaintiff de-
liability upon which
full,
eight
to more than
1,500
amounts
days
consideration
Allowing
to act.
clined
limitations
statutory
Title VII
consecutive
evi-
“background
as
stale,
events
unrelated
2000e-5(e)(l).
§
42 U.S.C.
See
periods.
the con-
guts
judgment
at
dence”
Mor-
forth in
set
the exclusions
Each
the hos-
limitations
a statute
cept of
therefore, apply.
gan,
context,
only
environment
work
tile
cannot
involving Noson
First,
the acts
by which
method
aas
backdoor
serves
“re-
any
reasonably be understood
to avoid
statements
time-barred
introduce
set-
allegations
subsequent
to”
lation
summary dismissal.
environment
work
hostile
forth
ting
assertion
for the
no basis
find
I also
intervening several
During
claim.
to inter-
necessary properly
we lack facts
one
at
least
received
years, McGinest
n. 6. The
Mаj. Op.
Morgan.
pret
trans-
one
at least
job title
change in
re-
information
detailed
includes
record
with or
worked
longer
no
fer,
that he
such
actions,
related
amply
Noson’s
garding
at the
longer worked
Noson,
no
district
majority’s opinion.
by the
rela-
fact,
only
In
location.
GTE
same
regarding
findings
specific
made
court
all
acts and
these distant
tionship between
and where
when
response,
(1) they
conduct
alleged
other
occurred,
including the
alleged conduct
(2)
em-
discriminatory; and
years before
place seven
it “took
fact
throughout.
ployed
complaint.”
EEOC
filed
I
implication,
majority’s
Contrary to obligated
I feel
majority,
Thus,
unlike
estab-
can
facts alone
these
not believe
do
claims
McGinest’s
whether
to determine
part
may form
these facts
even
below,
sume
we
believe
I do not
discussed
3. As
claim.
environment
pay claim.
unequal
single
hostile
McGinest's
consider
analysis, I as-
purposes of this
lish a sufficient “relation” as that term has Court concluded that conduct extending
by
been defined
Supreme
Court. See over
400-day
period'
if separated
—even
Morgan,
S.Ct. 2061. by
days
within that
reasonably
time—
This
every
is because
hostile work environ-
could be
part
construed as
of the same
ment claim
definition asserted
claim.
Id. at
trated
people,
different
in different lo-
Second, it is conceded that GTE en-
cations, separated by twenty-five years.
gaged in “certain intervening action” to
*25
Supreme
The
yet
Court has
given
not
us prevent Noson’s conduct from reoccurring.
specific guidance on the precise contours
For,
Id.
while GTE concluded that there
relation,
of a
so,
sufficient
now,
for
this is
was no
discrimination,
racial
it nonetheless
job.
our
Perhaps
of adequate
evidence
required Noson to apologize. Perhaps
might
relation
consist of the following:4
may
MeGinest
preferred
have
a stronger
an identity
offenders,
identity
response from GTE. But
the fact
that
location, an identity of a sufficiently dis-
there are no allegations of harmful conduct
tinct
harassment,
mode of
or a reasonable
by Noson—or
anyone
by
else for several
identity of time in relation to the applica-
years necessarily
establishes
—
ble statute of limitations. MeGinest failed
intervening response was at least sufficient
to submit any such evidence. The offend-
to maintain an acceptable work environ-
differed,
ers
place
the
of the offense dif-
full,
ment
eight
for
consecutive exhaustions
fered, and, even if all the alleged conduct
of the statute of limitations.5
was discriminatory by nature,
particu-
the
lar
And,
form abuse differed.
Finally,
taken in
if Noson’s conduct
created
the light most
MeGinest,
favorable to
work
there
hostile
environment
in
even
is no
identity
reasonable
of time. Morgan
despite GTE’s response, MeGinest
had
itself provides a guiding example. Based
right
waived his
to bring any result-
on a 300 day
limitations,
statute of
ing
Title
many
VII claim
times over.
is
It
4.
represents my
This list
own effort at
creating
inter-
a hostile work environment because
preting and applying Morgan’s relation re-
''avoiding a
presumably
lawsuit”
would not
quirement.
Morgan, 536
at
provide
"[jsatisfac-
sufficiently
basis for a
exhaustive,
S.Ct. 2061.
necessarily
It is not
toiy response.” Maj. Op. at
6.
1114 n.
any
nor is
one
necessarily
factor
sufficient.
majority
The
legal
cites no
authority for the
majority suggests
that GTE’s internal
quasi-existential proposition
subjec-
that the
understanding of the nature of the conduct
tive motivation
might
for an action
somehow
displaces
somehow
undisputed
fact
very
undermine
existence
action
actually
intervening
took
action—twice. See
Thus,
respect,
itself.
I find no basis for
Maj. Op. at 1114
6.n.
It is irrelevant that GTE
majority's
conclusion that GTE ''did not
described
"shoptalk,”
Noson’s behavior as
for
respond” to
Maj.
Noson’s
Op.
conduct.
at
subjective
characterization
did not
1121. The issue here
whether MeGi-
change the fact that it nonetheless demanded
nest
felt validated
employer,
but wheth-
put
stop
Noson
major-
it. Under the
er GTE
ity’s
remain liable
theory,
which,
for conduct it
company
in-
in an effort to
lawsuit,
potential
stop,
stop
avoid a
tended to
and did
at
undisputably
least
four
re-
sponded to
years.
Morgan,
remedied an
See
instance of offen-
low case, Title not a VII ever, Parcel One work environment hostile of a part nu more analysis is somewhat five nearly where “redeveloping” arguably claim environ work For, the hostile delay is anced. For, [a] “when later. years demonstrate context, must MeGinest ment federal .... employee, by the caused suggesting more than something lo- discretionary power courts hostility. He experienced that he the circum- light result’ just ‘a cate any hos sufficiently demonstrate 121, also at Id. ease.” to the peculiar stances race.” of [his] “because tility arose quo- (internal citations Holly D. 2000e-2(a)(l); see § if thing U.S.C. omitted). be one might It tations 1158, 1174 Tech., Inst. Cal. the hostile making up acts discrete sexual workplace Cir.2003) (holding, in- regular continued claim environment supervi if context, that even harassment longer significantly period for a tervals occurred, relations sexual sor-employee we Yet 180-day limitation. than conclusory allega than more require at- “we not countenance should a sexual proposed supervisor tions allegations Noson to revive tempts to the responded employee and the liaison experi- 1,500 days of when, least after *26 employ her protect to in order conditions, he overtures working encing acceptable allege interests”). might plaintiff A file ment failed to the EEOC alert to failed a hostile that suggest to detail retroactively in- sufficient now not should He suit. any provide occurred, fail to event long period a so after claims these voke conclu unsupported than thing more calm. apparent not I am it. motivated race that sion reasons, dis- respectfully I these For consid fully majority whether certain that conclusion majority’s agree with For, my requirement. this latter ered the basis may form conduct Noson’s appear claims view, of McGinest’s two environ- work hostile present this standard. under fail they are Instead, I believe claim. ment 2000e-5(e)(l). §by excluded involving McGi- incident is the First that he disputes No one tire. truck nest’s factual certain also would exclude GTE acci- automobile in a serious involved was allegations.” “conclusory as mere claims MeGinest tire. blown-out to a due dent majori- 1116. The
Hernandez, at F.3d accident, before long that not alleges argument. this briefly dispenses ty by tires new denied and was requested McGi- (accepting n. 5 Maj. Op. See least one though at mechanics—even suffice “would it testimony because nest’s bald. they looked that agreed supervisor of fact trier a reasonable enable evi- sufficient produced arguably MeGinest occurred, had that discrimination conclude oc- a denial such suggest dence corroborating for further the need without curred. con- evidence”). majority apparently this incident includes Yet MeGinest forth sufficient set that MeGinest cludes not claim environment to his hostile so allegations detail factual occurred, but denial alleged (rely- id. because See judgment. survive on his based a denial such Real because Parcel v. One States ing United however, MeGinest Unfortunately, Cir.1990) race. 487, 491-92 Prop., submitted no evidence to substantiate this vidual claims of discriminatory treatment charge. claim, He does not instance, must be “supported by facts.” Id. With directly mechanics said did respect allegation, least, McGi- anything to him to suggest that there was nest has failed provide such evidence, a racial component to such a denial. Nor and I do not believe we may consider it as does he present any circumstantial evi- part of his overall hostile work environ- dence that GTE provided mechanical ser- ment claim.
vices in a discriminatory manner. b
Rather, McGinest relies only on the de- McGinest’s claim of position differential testimony Brand, bonus which offers pay overtime presents no support problem. similar Brand, for his claim. who is white, submitted time did sheets agree showing sometimes “seem[edj” several white employees received vehicles driven Afri- more pay overtime than can-Americans McGinest did “given were not over the same (roughly) six-month period time level of in 1996.6 maintenance as vehicles driven Nevertheless, above, as noted employees.” white he explicitly must demonstrate only noted that this only differ- possible one inter- existed, ential but that it pretation arose on account mechanic’s behavior—one race. See 42 2000e-2(a)(l) § that even U.S.C. he acknowledged was not neces- o/his (prohibiting sarily discrimination supported by the facts. “because of For Brand race”). such individual’s conceded that some of the same mechanics also, treated poorly him while they treated Here, McGinest claims that there was аn at least one other African-American em- “unwritten rule” regarding payment ployee “pretty well.” - Ultimately, the best “relief supervisor pay,” whereby arriving that Brand could conclude was that “it *27 even five minutes early would earn em- could have been racial. It could have been ployees a hour full of wages. While his just personality.” By Brand’s own admis- immediate supervisor, Roberts, allowed sion, then, his experience direct and result- others to bonus, claim this alleged he is ing testimony could not form a sufficient prevented McGinest from doing so supporting basis for allega- McGinest’s because of McGinest’s race.7 On the occa- tions. sions attempted McGinest to note the bo- McGinest’s accident was nus undoubtedly a on sheets, overtime his alleges time he traumatic experience. given And that some of Roberts erased it. While this addi- his experiences at contexts, GTE in other tional may information provide context for might he understandably suspect claims, wide- McGinest’s they still rest on the ranging racial discrimination. Neverthe- conclusory allegation wage that the differ- less, our precedent makes clear that indi- ential arose on account of race. evidence, In the absence of additional McGinest, 7. According to practice this meant simple that hourly fact some employees that re- he compensation received no any portion ceive worked, overtime actually more than the hour he ap- others would much less a pear to bonus for the beyond reveal little entire hour. In other fact that some words, he claims that people he was pay denied indeed work more hours than actually completed. work Regardless, sense, this others. pay In this arising differentials distinction does the inquiry. affect For hourly positions from would carry seem to evidence that McGinest pay was denied actual weight less arising than analogous those from pay or bonus of his account race would positions. salaried support his hostile work environment claim. he re- that show time sheets McGinest’s sup- does not Nevertheless, record white other four than overtime First, less ceived of events. version McGinest’s
port direct neither presented he employees, that deposition in a admitted wage that evi- no show nor circumstantial submitted time sheets of race. on аccount Most arose erasures.8 differential relevant any dence must allegation sheets this Therefore, time I own believe damagingly, totality actually of the that he review from our conclusively demonstrate be excluded “relief su- dissent circumstances, I must pay and overtime both received his clearly it. contradicts majority’s This use pay. from pervisor” barred completely he was assertion pay. such receiving
from
support
find
attempts
conten-
hand,
other
the other
On
al-
may have
admission
Begg’s
remain-
unavailing. McGinest’s
are
tions
some-
practice
overtime
bonus
lowed the
part
as
included
be
ing claims
However, McGinest
prior
time
properly
we
circumstances”
“totality of the
Begg’s testimo-
selectively to read
appears
some
at least
example,
For
may consider.
known
may have
Begg
ny. While
(“n ,”9
graffiti
the bathroom
portion
—
it in
stopped
past, he
in the
practice
(“n—
“P.O.N.T.I.A.C.”),
graffiti
banner
And McGinest
manager.
became
when he
(re-
Month”),
comments
Hughes’s
History
oc-
denials
alleged
specifically
”),
stupid
“a
as
to McGinest
ferring
n—
Begg
after
1997, well
curred
(criticizing McGi-
comments
Ledbetter’s
other
ended.
practice
testified
other
to “the
comparing him
while
nest
sup-
find no
allegations
words, McGinest’s
here”), De-
who used work
guy
colored
testimony.
Begg’s
port
to McGinest
(referring
comments
Leon’s
investigated
the EEOC
Notably,
comments
Talmadge’s
“mammy”), and
as
determined
complaint
I
McGinest,
retire before
“I’ll
(saying
pay.”
his due relief
paid
fact been
“had in
man”)
reasonably
may all
for a
black
well, specifically
court, as
district
hostile.
racially
explicitly,
understood
“no credible evidence
there was
found
Jemi-
“Aunt
the term
use of
DeLeon’s
any ‘unwrit-
application
aof differential
*28
of racial
evidence
may also serve
ma”
over-
supervisor
relief
regarding
rule’
ten
to survive
hostility sufficient
ap-
the differential
less
time”'—much
the
not direct
did
DeLeon
judgment.
A
of race.
on account
arose
plication
himself,
rather
at McGinest
phrase
the
compels
review
careful
of McGinest’s.
friend
coworker
a white
allegations
conclusion:
same
racially
lack
truly did
Perhaps DeLeon
supervisor
relief
“unwritten”
involving
nickname.
in
use
motive
hostile
testimony,
by Begg’s
unsupported
rule are
could
factfinder
reasonable
by McGinest’s
contradicted
directly
isolate McGi-
it wаs meant
conclude
extent
to the
And
time sheets.
own
decorum,
and because
might
sake
For
EEOC
speculated
8. McGinest
actual
accurately
recites
opinion
Rob-
periods in which
court's
sheets from
have time
Nevertheless,
record,
needless
avoid the
I shall
in the
entries.
words
certain
erased
erts
record,
language.
I there-
inflammatory
the time
appear
in
they
repetition
do
close
cover
racial
submit
the offensive
did
place
use "n —"
sheets
fore
twenty
of work —almost
worth
seven months'
slur.
during
which
total
time
percent of the
occurred.
supposedly
erasures
nest
referring disparagingly,
in his most favorable to
Elec.,
him. T.W.
presence,
to his friend as an African-
F.2d
630-31. Second, “the objective
American woman. Moreover, use of the
severity of harassment should be judged
term
may
itself
reasonably be construed as
from the perspective of a
per
reasonable
racially hostile, whether directed at McGi
son in
plaintiffs
position, considering
See,
nest
not.
e.g., Woods v. Graphic
all the circumstances.” Oncale v. Sun
Communications,
1195,
925 F.2d
downer
Servs., Inc.,
75,
523 U.S.
Offshore
Cir.1991) (upholding hostile work environ
81,
998,
118 S.Ct.
(1998)
L.Ed.2d 201
judgment
ment
where prevailing plaintiff
(internal quotation omitted).10 Finally,
“was surrounded by racial hostility, and McGinest’s evidence
“prove
that the
subjected directly
it”).
to some of
Rob
conduct at issue was not merely tinged
erts’s
upon
comments
learning of the re with offensive ... connotations, but actual
moval of the
(“Oh
racist bathroom graffiti
ly constituted
...
discrimination]
be
well, I guess I’ll
write it again.
cause of ...
[race].” Id. at
Ah, why can’t we all just get along?”)
(emphasis
in original,
quota
internal
arguably exhibited racial hostility as well.
omitted).
tion
While GTE claims that Roberts did not
know that
graffiti
nature,
racist in
only
creates a material
dispute
factual
With these principles mind,
I agree
precluding summary judgment.
with the district court that this case pres-
Finally, McGinest offered sufficient sup-
ents a
question”
“close
of whether a prop-
porting evidence,
including an affidavit
er
review McGinest’s admissible evi-
Brand,
coworker
from which a rea-
dence suggests that
be held
sonable factfinder could conclude that at
liable
this case. Ultimately, however, I
least some employees, including Talmadge
am satisfied that
presented
(“I
and Frick
refuse to work for that dumb
triable issue of material fact on whether he
bitch”),
son of a
may have refused to wоrk
subjected
to a hostile work environ-
with McGinest because of his race.
First,
ment.
opprobriousness
of most
comments,
and the
frequency
B
which they arose, could lead a reasonable
Once identifying which assertions are
fact-finder to conclude that together they
relevant and properly supported, we must
amounted to more than “a mere offensive
consider whether
presented
suf-
Harris,
utterance.”
ficient evidence to survive summary judg-
367;
S.Ct.
Swinton v. Potomac Corp., 270
ment on his hostile work environment
(9th Cir.2001)
(describing
claim. Because the set of facts I review “n—” as “perhaps the most offensive and
*29
differs from that of the majority, I must
inflammatory racial
English”).
slur
in
conduct an independent analysis.
Here,
repeated
of
invocation
highly
important
Three
principles
upon
bear
offensive
in a
language
of
variety
contexts
the inquiry. First, because McGinest ap- may be understood to have created a hu-
peals from summary judgment dismissal, miliating atmosphere
seen
as
from the ob-
we must review the evidence in
light
jective
perspective of a reasonable Afri-
10. While Oncale dealt with sexual harass-
same standard as those based on sexual
ment,
Supreme
Court
instructs
Morgan,
harassment.”
atU.S.
116 n.
"[hlostile work environment claims based on
S.Ct. are not Employers work environment hostile a harassment, (requiring howev for coworker ly liable cre enough pervasive or to be “severe defeat can of lack notice er, in which case work or abusive hostile objectively Swin ate claims. environment work hostile the stat Further, environment”). at least alleges at 803. ton, n work colleagues of certai refusal ed supervisors immediate his notified that he may race of because with McGinest bath offensive of instance one atof least with interfere[d] “unreasonably comments, of have DeLeon’s of graffiti, room Harris, performance.” work comments, [McGinest’s] the stated and Talmadge’s Finally, 367. 114 S.Ct. at to work employees of some refusal for both complaints, frequent McGinest’s inci many of these *30 (emphasis Id. graffiti. of the the existence as comments Hughes’s liable for cariously true for omitted). particularly This men these three by Still, comments well. filed after appeared graffiti portion relatively small up a make conclude Thus, I would complaint. allegations. McGinest’s that GTE may not lack claim of notice for ful conduct.” Ellison v. Brady, 924 F.2d any of McGinest’s allegations. admissible case, In this GTE did formally respond to some of complaints. And There remains one ground additional when GTE acted to address McGinest’s
upon which
might
GTE
succeed
sum-
specific allegations, discriminatory conduct
mary judgment. Where,
here,
there is
particular
employee appears to
evidence suggesting that a company had have
For
ceased.
example, when GTE
sufficient notice of discriminatory conduct,
eventually learned
identity
of a witness
it generally may avoid
if
liability
it ade-
to Hughes’s comments, it immediately rep-
quately responded to the situation. Full-
him,
rimanded
and there
no
are
further
er,
ior”).11
some regularity from 1995 through 2000.
In considering adequacy, we
examine
And considering the totality of the circum-
company’s response in its ability to “stop
stances,
must,
as we
a reasonable factfin-
person
harassment
engaged
who
der could conclude that GTE’s corrective
harassment.” We must
also consider measures
inadequate
were
for failing “to
whether
response might “persuade
impose sufficient penalties to
assure
potential harassers to rеfrain from unlaw- workplace free from ... harassment.” Id.
context,
supervisor
In the
D.,
a company
Holly
(finding
Harris, II C ad- McGinest’s of to my review failed Ultimately, that GTE also claims totality considering evidence, the of Outside missible the position him to promote case” circumstances, a “close reveals on Supervisor Installer Construction Plant respond to to efforts made indeed. GTE disparate race, Title VII account of no one which after complaints, § McGinest’s 2000e- 42 U.S.C. See claim. treatment harassing continued aggressor Glendale, particular City 2(a); Jaurеgui of aas the claim considering But Cir.1988) McGinest. (describing 1128, 1134 present evi- allegations whole, McGinest’s out “singled being as treatment disparate environment an overall of dence sim- others favorably than less treated trig- sufficiently hostile may been (internal of race” account ilarly situated protections. Title VII’s ger omitted)). quotation exclude that we I believe Because in- claim, McGinest support as either allegations some of Douglas McDonnell familiar the voked I conclusory, am merely as barred or time Douglas McDonnell See presumption. majori- in the concur unable regrettably S.Ct. Green, 411 U.S. Corp. v. McGi- agree I do analysis. While ty’s the (1973). with agree I L.Ed.2d forward, I must go claims nest’s some- appear litigants the majority majority’s nonetheless dissent the use about confused what examine properly unwillingness how presumption Douglas McDonnell majority’s inquiry. of that scope discrimina- to other it relates where- precedent dangerous sets a opinion burden-shifting these because And tion. sink’s kitchen present a who by plaintiffs like complicated, are somewhat issues al- and time-barred unsupported worth anal- complete too, in a I, engage majority, judgment can survive legations a different issue, reach ysis of the they some- together” all “taken because conclusion.13 deny an other so each how mesh less evidence go to trial on plaintiff majority's lows I find admit that I must is could—which sug- otherwise or she It confusing as well. than analysis somewhat toBut par- analysis "presumption.” “not why termed method gests that the Op. at To Maj. of GTE’s note ticularly significant.” majority takes extent suggests majority rec- the Douglas and thus nondiscriminatory explanation the extent does not presumption pre- Douglas McDonnell McDonnell ognizes that significant advan- awith provide McGinest attaches, agree with I longer sumption no context, disagree. Successful I tage in this specifically to pertaining issues majority that a subse- presumption, invocation particu- “not become then presumption proffer an employer quent failure Id. larly significant.” explanation, al- nondiscriminatory adequate,
1137
A
a hiring freeze accounted for its failure to
promote him”);
also,
see
e.g., Jones v. Fla.
There
question
is no
that McGinest is a
Power Corp.,
825
1488,
F.2d
1492
class,
member of a protected
ap-
that he
Cir.1987) (upholding factual finding that
plied
qualified
to and was
supervi-
plaintiffs job denial “was not the result of
position,
sor
rejected
and that he was
from
racial discrimination
justified
but was
due
position.
to a company
freeze”).
hiring
Conse
GTE disputes whether McGinest satis
quently, we are presented
an explana
factor,
fied
“that,
fourth
rejec
after his
tion that is “legally sufficient
justify
tion,
position
open
remained
and the
judgment for the defendant,” Tex. Dept. of
employer continued to seek applicants
Cmty.
Burdine,
v.
248,
450 U.S.
Affairs
persons
of complainant’s qualifica
255,
1089,
101 S.Ct.
67
(1981),
L.Ed.2d 207
802,
tions.” Id. at
For,
S.Ct. 1817.
so the McDonnell Douglas “presumption
while a white supervisor
job,
received the
drops
discrimination
out of
picture.”
GTE claims that because it was only a
Reeves
Prods.,
Sanderson Plumbing
transfer,
lateral
supervisor
was not
Inc.,
133, 143,
530 U.S.
2097,
120 S.Ct.
“treated more favorably.” Chuang v.
(2000) (internal
L.Ed.2d 105
quotation
Cal.,
Univ.
Trustees,
Davis Bd.
omitted).
1115, 1123(9th
GTE takes an overly
approach
literal
B
question.
Supreme
Court
In the absence
McDonnell
Douglas itself
McDonnell Doug-
indicated that
las presumption,
the test must
“burden
practically applied.
now
merges with the
McDonnell
ultimate
Douglas, 411
burden
per-
U.S. at
802 n.
suading
here,
S.Ct. 1817.
court that [ ]he
And
has been
GTE does
victim of
contest that
intentional
qualified
McGinest
discrimination.
for a
[H]e
favor-
(1)
promotion,
able
succeed in this either
directly
[
]
and that
the same job
by persuading
went to a
the court
white
that a
candidate instead.
discrimina-
There-
fore,
tory reason
likely
I
more
agree that
motivated
em-
successfully
(2)
ployer or [
indirectly by
]
invoked the presumption.
showing that
the employer’s proffered explanation
un-
may rebut,
however, by setting
worthy of
Burdine,
credence.”
forth
legitimate,
“some
nondiscriminatory
256,
he to dis- intended management upper GTE’s hostile up his make that other evidence instituting the by him against majority criminate The claim. environment work of a triable issue may There freeze. this evidence—or relies specifically to the responses to response whether as to fact “permissive” on GTE’s least his environment meets work hostile allegedly that conclude it—to judg- cases in of purposes Circuit Ninth insufficient burden. promote to to nothing establish discriminatory failure does volving But ment. any discrimi dis- of had management evidence always upper involved GTE that See, e.g., promote to failing decisionmakers. among motive criminatory nation Hawaii, 40 F.3d University Lam v. McGinest. Cir.1994) evidence (finding (9th con- Indeed, suggests the evidence com appointments headed who professor re- management GTE this case. trary in Indeed, biased). in the ab was mittee individu- remedied —each to—and sponded evidence, “statements additional sence it of which of discrimination instance al by nondecisionmakers, nor statements by aware, including formally became the decisional to unrelated decisionmakers comments, comments, DeLeon’s Hughes’s to sat suffice itself, alone] [cannot process these While behavior. Noson’s even regard.” in this burden plaintiffs isfy the to insufficient may have been responses 490 U.S. Hopkins, Price Waterhouse environment work hostile an overall rebut 1775, L.Ed.2d suggest certainly do not claim, they see, e.g., concurring); (O’Connor, J., (1989) kind of any management acted GTE & Trust Nat'l Am. Bank DeHorney v. Therefore, unlike discriminatory intent. Cir. Ass’n, F.2d Sav. McGi- not believe I do majority, to failed plaintiff 1989) (holding evidence his rely on admissible nest race dis facie case a prima make out bootstrap to environment a hostile no evidence there was when crimination claim. treatment disparate the subor between a nexus establish majority also Both deci superior’s racial slur and dinate’s em- may have that GTE rely on evidence terminate). sion number small disproportionately ployed decisionmaker, Here, the immediate ac- majority The Americans. African hiring McGi- recommended Begg, actually Maj. Op. at allegation. cepts allegations no are nest, there First, there is I, cannot. respectfully, But ei conduct discriminatory any engaged record, evidence statistical such no he declined before, during, or after ther had an presumably though McGinest even deci freeze salary/hiring The hire him. discovery. during develop opportunity management, upper came itself sion McGi- court denied Indeed, district co among of harassment and evidence summary judgment request nest’s at McGinest’s supervisors workers information. of such judicial notice take discrimina establish simply does yard correct, as the clearly ruling This See levels. higher extending to those tion disputed reasonably both information has Neither at 467. DeHorney, readily verifiable. and was not evidence any other produced fur- 201(b). court district Fed.R.Evid. to the decisionmakers connecting these statistics concluded ther Ledbet- Hughes, conduct discriminatory it. do not consider I therefore it. support in the record court, no and there were irrelevant they because were not ac as to demonstrate that its actions were not companied by any analysis and because by[McGinest’s motivated race],” consider- they involved county than ation of this evidence would require different us to actually where he worked. Such an evi- “stray[ from] task [our] considering not dentiary ruling is reviewed for abuse of only discriminatory intent but also discrim- *34 discretion, of — which I find none. See Dom inatory impact.” Raytheon, U.S. T.K., ingo 600, (9th v. 289 F.3d 605 -, Cir. 124 S.Ct. at This, the Supreme 2002) (noting limited review “even when Court has told us we cannot do. See id.
the rulings determine the outcome of a
motion for judgment”). Alternatively,
Moreover,
attempts
this kind of data would shed
meet his burden “indirectly by
light
little
on
showing
McGinest’s disparate treat-
that the employer’s proffered explanation
ment claim
it says
because
next to nothing
is unworthy of
Burdine,
credence.”
about
whether GTE used its neutrally ap-
256, 101
U.S. at
S.Ct.
plicable
1089. McGinest first
salary/hiring freeze
an
effort to
asks us to
judicial
take
notice of
against
reports
discriminate
Rather,
him.
it is
GTE’s financial health
more
around the time
properly
understood as evidence of
the salary/hiring freeze.
I
disparate
agree
impact,
with the
tending to show that the
majority that
deny
we must
motion,
effects of GTE’s
employment practice fell
reports
these
are not “capable
more
harshly on
accurаte
him. See Raytheon Co. v.
—
and ready
Hernandez,
determination” as required by
--,-,
U.S.
124 S.Ct.
201(b).15
Fed.R.Evid.
513, 519,
(2003)
(“This
L.Ed.2d 357
Court
consistently
has
recognized a dis- McGinest is then left
awith
simple at
tinction between claims of discrimination tack on the credibility of
witnesses,
GTE’s
based on disparate treatment and claims of
arguing that the lack of documentary evi
discrimination based on disparate
im-
of a
dence
freeze suggests that its explana
pact.”).
tion is “unworthy of
Burdine,
credence.”
256, 101
U.S.
S.Ct. 1089. In revers
Unfortunately, McGinest raised the is-
ing
court,
the district
majority,
too,
disparate
sue of
impact for the first time
heavily
relies
on “the absence of any docu
on summary judgment, when he asked the
mentation confirming that a hiring freeze
court
judicial
to take
notice of the statis-
place
during the relevant time peri
tics. Because McGinest failed to “plead
Maj.
od.”
Op. at 1123
the additional disparate impact theory in
],
[his] complaint[
or ...
This,
make
course,
known
is not even evidence at
during discovery [his] intention to pursue
all. See Saint Mary’s Honor
v.
Ctr.
recovery
on
disparate
Hicks,
impact theory,”
502,
519,
he may not
rely
now
on it.
(1993) (“It
Coleman v.
17. With credibility weigh the majority would that the
H41 against discriminate any of employ- Bass, [its] Greenberg Encino, CA, & for Defen- ees ... because opposed any he has dants-Appellees. [dis-
criminatory] practice.”)- I agree with the majority’s Before B. FLETCHER, FARRIS, reasoning and conclusion that WARDLAW, we uphold must Circuit Judges. district court’s dis- missal of this claim.
ORDER IV The order entered on January 2004 is converted to memorandum disposition conclusion, I agree that we re- and modified as follows: verse on the hostile work environment claim, but for reasons different from the Delete the first sentence in paragraph 3: majority. I respectfully disagree with the appellants “The have unnecessarily proce- majority on the disparate claim, treatment durally complicated the issues in this affirm. Finally, would I concur in the case.” court’s decision to affirm summary judg- Delete the sentence paragraph line ment dismissal on retaliatory failure to *36 “Further, 7: the SEHO considered promote claim. stay-put part issue as of the due process
hearing.” Delete the first sentence paragraph 4: “All critical issues have been raised and decided in the SEHO process proceed- due ing.” Revise the second sentence in paragraph
Aja TERMINE, through her 4 to read: parties “The appealed Guardian Ad Litem Karen TERMINE; decision in the process due hearing to the Termine, individual, Karen Plain- district court.” tiffs-Appellants, Revise the last in paragraph sentence to read: direct “We that the court district vacate its opinion subject that is the of this WILLIAM S. HART UNION HIGH appeal and reconsider opinion its light DISTRICT; SCHOOL Westmark Dist., of Vashon Island Sch. record School, Defendants-Appellees. the appeal from process the due hearing No. any 02-56638. additional take at request parties or either of United States Court of Appeals, them.” Ninth Circuit. The clerk shall depublish the order March substitute unpublished memorandum disposition. Marcy Tiffany, J.K. Steven Wyner, M. panel deny has voted petition Wyner Tiffany, Torrance, & CA, for Plain- for panel rehearing. Judge Wardlaw votes tiffs-Appellants. deny petition for rehearing en banc Green, Barrett K. Littler Mendelson, & and Judges B. Fletcher and Farris so rec- CA, Los Angeles, Harold Gutenberg, ommend. notes gave Noson supervisor. the relief when he was sion supervisor, conduct Noson’s about occasion, refused workers several one On person. Bisnar, complained Hank joba carrying out him in to work complaints Because Bri- undesirable. extremely dirty and problem, remedying successful coworker, Brand, testified a white an dis- an internal ultimately filed to work for him refused they also twelve inci- noting complaint crimination cоmplain did not occasion. McGinest same in a him treated Noson had where dents about incident. management manner. GTE claims discriminatory Vehicles Maintenance of find- investigation, internal it conducted con- became 1997 McGinest In March of “shop- merely to be comments ing Noson’s compa- tires on his one of the cerned apologize talk,” requiring Noson ninety wearing out. Since
Notes
notes GTE him. allow informal, reasonably mal “man formally reported not were dents perceive[d] “subjectively that he conclusion whether I need not determine agement.” Id. at be abusive.” environment a differ makes generally distinction case, anti- own in this GTE’s ence because directs specifically policy discrimination working environment a hostile if Even con discrimination discuss employees fail- for only liable is employer exists, “an re or human supervisor your “with cerns of which harassment remedy ing added). (emphasis representative” sources Fuller, 47 F.3d know.” or should knows for fail liable “are employers general, In notes, correctly majority As the a hostile remedy prevent or ing to harassing engages supervisor when management-level of which environment may be generally conduct, employer rea knew, in the exercise or employees envi- for hostile “vicariously liable held Swen have known.” should care sonable Nich- supervisor.” by a created ronment (9th 1184, 1202 Potter, 271 F.3d son Enters., Inc., 256 F.3d Rest. Azteca ols v. internal Cir.2001) original, (emphasis supervisor- 864, 877 omitted). Because quotations then, circumstances, GTE harassment re instructions own followed knowledge for lack not defend manage discrimination, least porting re- Therefore, no notice conduct. known” have reasonably “should ment by super- made the comments quired complaints. the existence Hughes is and Roberts. Ledbetter visors involving the additional Allegations Both case. complicated more a somewhat graffiti the banner graffiti bathroom describe EEOC by McGi- reported specifically Manager,” Hughes “[MeGinestJ’s alleges case, McGinest each But in nest. McGi- he was whether challenges appeared markings offensive This manager. just a manager nest’s to, superviso- by, and accessible used areas genuine there only demonstrates not dis- does which GTE ry employees, At issue. on the dispute factual factfinder Therefore, reasonable pute. then, agree I proceedings, stage exercise “in the that GTE conclude could allega- accept we known” care should of reasonable vi- that GTE would tions as true