VASQUEZ v. COUNTY OF LOS ANGELES

FERGUSON, Circuit Judge, dissenting:

I respectfully dissent. Today, the majority levies a blow to our important Title VII protections when it erroneously holds that Francisco Vasquez ("Vasquez") was unable to show that racially discriminatory comments by a supervisor are evidence of discriminatory intent. Despite the blatant evidence of discrimination put forth by Vasquez, the majority errs by holding that Vasquez was unable to show that his employer's stated reason for his job transfer was pretextual. Similarly, the majority inappropriately places a time limit on retaliation cases by holding that Vasquez did not show a causal link between the protected activity and his transfer solely because the latter occurred thirteen months after the former. Finally, the majority errs by dismissing Vasquez' hostile work environment claim as a matter of law. In so doing, it improperly downplays the pervasiveness of the hostile environment created by the ongoing harassing conduct of Kelly Berglund ("Berglund") and wholly fails to address the role that Vasquez' employer played in sanctioning, rather than correcting, the harassment in violation of Title VII.

I disagree with the majority's conclusion that Vasquez has not proffered any direct evidence of discriminatory intent. Berglund's anti-Hispanic comments are direct evidence of discrimination, particularly considering the ongoing conflict between Vasquez and Berglund, and Leeds' awareness of it. Moreover, even under the McDonnell Douglas framework, Vasquez has marshaled sufficient circumstantial evidence of discrimination.

Berglund's comments constitute direct evidence of discrimination on the basis of national origin because her explicit stereotyping conveyed discriminatory animus without "`inference or presumption,'" Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (citation omitted), and her report led to the decision to transfer Vasquez. The majority holds that Vasquez has not shown the necessary nexus between Berglund's discriminatory remarks and Leeds' subsequent decision to transfer Vasquez. Maj. Op. at 640-41. However, a probing examination of the facts reveals that Berglund's comments do in fact satisfy the requisite nexus to the transfer decision.

Under our case law, explicitly discriminatory remarks by a subordinate may implicate the motive of the employer if her conduct "set in motion the chain of events that led to . . . the adverse employment action." Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999). Here, Berglund made several discriminatory comments, and her report of Vasquez' alleged misconduct precipitated Leeds' decision to transfer him. Although Leeds purportedly conducted her own investigation before making the decision, this does not break the causal connection between Berglund's illicit comments and the decision to transfer if Leeds' ultimate decision to transfer Vasquez was tainted by the discriminatory animus. Moreover, Leeds' investigation cannot sanitize the transfer decision because she also had unclean hands. Leeds was fully aware of Berglund's discriminatory comments but rather than remedy the situation, she allegedly threatened to transfer Vasquez if he did not withdraw his grievance regarding those comments. In response, Vasquez withdrew his grievance.

The majority cites DeHorney v. Bank of America National Trust Savings Ass'n, 879 F.2d 459 (9th Cir. 1989) (per curiam), for the proposition that Vasquez cannot show a nexus between Berglund's report and the decision to transfer; however, this case is distinguishable from the one before us. In DeHorney, we upheld a grant of summary judgment for the employer when the employee failed to show that her termination was motivated by racial animus. Id. at 468. In so holding, we reasoned that the only showing of possible discrimination was represented by a racial slur made by the employee who had conducted the investigation into the plaintiff's alleged misconduct. Id. In that case, we found this animus did not have the requisite nexus to the decision to terminate because the subordinate played the minor role of the investigator, and there was no evidence that her bias tainted the ultimate decision. Id.

However, unlike the case at hand, the subordinate employee in DeHorney did not initiate the investigation into the misconduct, she was simply the auditor to which the case was assigned. Id. at 461, 468. Similarly, she had made no unsolicited suggestion to terminate the employee, and her report was made on a standard form. Id. at 467. Finally, the ultimate decisionmaker was neither aware of her discriminatory comments nor even the employee's race. Id. at 468. Consequently, the court found no nexus between the racial animus and the decision to terminate. In contrast, Berglund initiated the complaint and Leeds was aware of both Berglund's discriminatory comments and Vasquez' national origin and sex. In fact, Leeds' transfer of Vasquez was precisely what Berglund had desired all along, and was consistent with Berglund's racist remark that "Hispanics do well in the field."

Nevertheless, it is true that there remains a question as to how much Berglund's discriminatory comments and report actually influenced Leeds' decision to transfer Vasquez. This, however, is a factual question. Gilbrook, 177 F.3d at 855. We have held that whether the person harboring a discriminatory animus was sufficiently involved in an employment decision is a dispute "for the trier of fact to resolve." Godwin, 150 F.3d at 1221. Because there is evidence that Berglund's discriminatory animus may have played a role in Leeds' decision to transfer Vasquez, we should allow the jury to determine whether the direct evidence of Berglund's illicit motive rendered the employment action violative of Title VII.

Even under the McDonnell Douglas framework, Vasquez makes out a prima facie case of discrimination. Under McDonnell Douglas, he must show: (1) he is a member of a protected class, (2) he was qualified, (3) an adverse employment action, and (4) similarly-situated non-class members were treated more favorably than he. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658 (9th Cir. 2002). The burden then shifts to the County "to articulate a legitimate, nondiscriminatory reason for [the adverse action]." Id. (citation omitted). If the County is able to do so, Vasquez must proffer evidence of pretext. Id.

The majority holds that Vasquez cannot establish that the County's articulated non-discriminatory reason for transferring Vasquez is pretextual. Maj. Op. at 640-41. The County asserts as its reason for the transfer Vasquez' alleged disobedience of a direct order from Berglund, his supervisor at the time. Vasquez proffers both direct and circumstantial evidence of pretext.

The majority applies the wrong standard to Vasquez' disparate treatment claim by disregarding his prima facie case in its pretext analysis. As we have previously held, in order to raise a triable issue of fact, "the plaintiff need not necessarily offer evidence beyond that offered to establish a prima facie case. The trier of fact may consider the same evidence that the plaintiff has introduced to establish a prima facie case in determining whether the defendant's explanation for the employment decision is pretextual." Lowe v. Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985) (citations omitted) (emphasis in original); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").

In its pretext analysis, the District Court and the majority should have considered the evidence of discrimination proffered by Vasquez regarding Berglund's discriminatory comments and her role in Leeds' decision to transfer Vasquez. "`[V]ery little evidence'" is necessary to raise a genuine issue of fact regarding an employer's motive. Godwin, 150 F.3d at 1220 (quoting Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991)). It is undeniable that Berglund's explicit epithets constitute direct evidence of discrimination. See id. at 1221. Although Leeds made the ultimate transfer decision, Berglund's report "set in motion the chain of events that led to . . . the adverse employment action." Gilbrook, 177 F.3d at 854. As noted earlier, whether Berglund was sufficiently involved in the decision to impute her discriminatory animus to the County is a jury question. Godwin, 150 F.3d at 1221.

In addition, the majority should have considered circumstantial evidence of pretext. Courts may consider myriad forms of evidence, even the employer's "reaction, if any, to [plaintiff's] legitimate civil rights activities." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, Leeds previously responded to Vasquez' grievance regarding Berglund's discriminatory remarks by threatening to transfer him if he did not withdraw it. Leeds' threat to transfer Vasquez for filing a grievance tends to show a discriminatory motive. Id. Vasquez further proffered, as circumstantial evidence of pretext, his testimony that Berglund did not forbid him from playing football. See Aragon, 292 F.3d at 658.

Furthermore, the majority fails to consider the relevant facts and circumstances surrounding Vasquez' transfer in their pretext analysis. Vasquez' removal from Turquoise cottage was the culmination of Berglund's efforts to have Vasquez transferred to a field position. Vasquez had resisted a transfer at every step, going so far as to pass up promotions and withdrawing a grievance of racial and sexual discrimination against Berglund to avoid the transfer to the field. Taken together, this evidence is sufficiently "specific" and "substantial" to preclude summary judgment on his disparate treatment claim. Godwin, 150 F.3d at 1222. Thus, Vasquez raised a triable issue as to his disparate treatment claim.

The majority also argues that Vasquez and Ng were not similarly situated because "Ng did not engage in problematic conduct of comparable seriousness to that of Vasquez." Maj. Op. at 641-42. However, they fail to see the District Court's error in finding as a matter of law that Ng was not similarly situated to Vasquez for purposes of determining whether Ng was treated more favorably than Vasquez. Ng was a co-worker of Vasquez', who was also a DPO at DKC and who participated in the football game. The District court determined, and the majority agreed, that he was not similarly situated because Vasquez had proffered no evidence that Ng was told not to organize the game or that he disobeyed the direct order of a supervisor.

This analysis is flawed for one glaring reason: Vasquez contends that Berglund did not forbid him from organizing the flag football game. If the District Court had properly refrained from weighing the evidence and had viewed it in the light most favorable to Vasquez, then he was similarly situated to Ng because he was punished for organizing a game from which he was not told to refrain and he did not otherwise know it to be against the rules. Accordingly, he was treated less favorably than a similarly situated DPO I even though he did not allegedly disobey a supervisor or flout any rule of the DKC. This differential treatment is further evidence of pretext. See Gerdom v. Continental Airlines, 692 F.2d 602, 609 (9th Cir. 1982) (en banc).

The value and import of circumstantial evidence in Title VII cases was recently affirmed by the Supreme Court in Desert Palace, Inc. v. Costa, ___ U.S. ___, ___, 123 S.Ct. 2148, 2155, 156 L.Ed.2d 84 (U.S. 2003), which affirmed an en banc court of our circuit by holding that "[i]n order to obtain an instruction under § 2000e-2(m) [of the 1991 Civil Rights Act], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that `race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" In rejecting the petitioner's argument that direct evidence was required for an instruction to be given, the Court stated, "We have often acknowledged the utility of circumstantial evidence in discrimination cases . . . The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: `Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'" Id. at 2154 (quoting Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 508 n. 17, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). Accordingly, in light of both the direct and circumstantial evidence of discrimination that Vasquez offered, he should not have had a problem surviving the County's summary judgment motion. In sum, I would reverse the summary judgment because Vasquez proffered sufficient evidence of discriminatory intent. The District Court erred in disposing of Vasquez' claims at summary judgment and should instead have allowed his case to go forward.

To sustain his retaliation claim, Vasquez must show: "(1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) that a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The majority holds that Vasquez' retaliation claim fails because Vasquez did not show a causal link between the protected activity and the adverse employment action. Alternatively, the majority states that Vasquez failed to establish that the stated reason for the transfer was pretextual. However, I would find that Vasquez made out a prima facie case of retaliation with regard to all three elements.

First, Vasquez showed that "he engaged in a protected activity" when he filed the February 1998 grievance regarding Berglund's discriminatory statements.

Second, Vasquez has shown that his employer subjected him to an adverse employment action. In Ray, we adopted a broad test for evaluating alleged adverse employment actions in the context of Title VII retaliation claims. Specifically, we held that, for purposes of Title VII retaliation claims, "an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity." Id. at 1243 (footnote omitted). We adopted the Equal Employment Opportunity Commission's ("EEOC") test for such actions, reasoning that its standard is "consistent with our prior case law and effectuates the language and purpose of Title VII." Id. (relying on EEOC Compliance Manual Section 8, "Retaliation," Par. 8008 (1998)). The EEOC, in turn, adopted this test "based on statutory language and policy considerations." EEOC Compliance Manual, § 8-II(D)(3) (1998). Retaliation claims are governed by 42 U.S.C. § 2000e-3(a) (2003), which provides that it is "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII]."

While the majority assumes "that the transfer met the Ray standard," I would explicitly find that an adverse employment action in fact exists for purposes of Vasquez' retaliation claim. Maj. Op. at 646. Vasquez' transfer from the Turquoise cottage to the field position constitutes an adverse employment action if it was "reasonably likely to deter [him] from engaging in protected activity." Ray, 217 F.3d at 1242-43 (internal quotation marks and citation omitted). This is a unique case in which the facts show that the transfer actually did deter Vasquez from engaging in protected activity. In fact, Vasquez withdrew his grievance against Berglund after Leeds told him that the only solution to the conflict between them was to transfer him out of the Turquoise cottage, and that the only way he could avoid the transfer was to withdraw his grievance against Berglund. He promptly did. Thus, Vasquez raised a triable issue as to the adverse employment action since a reasonable jury could find that the transfer was reasonably likely to deter Vasquez' protected activity.

Third, Vasquez proffered sufficient evidence that a causal link existed between the protected activity and the adverse action. Although the passing of the year between his protected activity in February of 1998 and the transfer in March of 1999, standing alone, is probably too long to raise an inference of discrimination, Vasquez also proffered evidence of Berglund's retaliatory motive and prior attempts to have him transferred. For example, in a memo dated March 20, 1998, Berglund wrote to Leeds: "It seems clear beyond a doubt that Mr. Vasquez may not be the ideal candidate to work in a cottage with the minors at DKC." Vasquez also testified that Berglund threatened to "get" him and attempted to pressure him into transferring out of the Turquoise cottage.

Despite this evidence, the majority finds that Vasquez failed to show a causal link, citing our decision in Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002), for the proposition that the year between Vasquez' protected activity and the adverse employment action severed the causal link. In Villiarimo, we held that "[a] nearly 18-month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation." Id. at 1065 (emphasis added). The critical difference in the instant case is that timing was not the sole evidence of causation that Vasquez proffered. As noted earlier, Vasquez provided evidence of Berglund's racially discriminatory comments as well as her prior efforts to have him transferred to the field.

Additionally, the majority holds that Vasquez' retaliation claim fails because Vasquez has not shown that the County's proffered reason for the adverse action — that he allegedly disobeyed a direct order — was pretextual. The majority errs in drawing this conclusion because, as noted previously in my discussion of Vasquez' disparate treatment claim, Vasquez offered both direct and circumstantial evidence of pretext. Berglund's explicit racial epithets, Vasquez' testimony that Berglund did not forbid him from playing football, and Leeds' threat to transfer him when he filed a grievance all support a finding of a triable issue as to his retaliation claim.

Finally, I disagree with the majority's determination that Vasquez' hostile work environment claim fails as a matter of law. To survive summary judgment, Vasquez must raise a triable issue as to whether: (1) he was "subjected to verbal or physical conduct" because of his race and sex; (2) "the conduct was unwelcome"; and (3) "the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment." Kang v. U. Lim America, Inc., 296 F.3d 810, 817 (9th Cir. 2002) (internal quotation marks and citation omitted). At issue here is whether a reasonable jury could find that the harassing "conduct was sufficiently severe or pervasive `to alter the conditions of [Vasquez'] employment and create an abusive working environment.'" Pavon v. Swift Transportation Co., 192 F.3d 902, 908 (9th Cir. 1999) (quoting Meritor Sav. Bank, FSB. v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

Vasquez has proffered evidence that Berglund directed epithets at him and engaged in a campaign of harassment against him because of his race and sex. He has also demonstrated that his employer did nothing to stop the harassment. To the contrary, his employers were aware of the harassment but tolerated and possibly endorsed it. I will address both of these aspects of the hostile work environment in turn.

As the majority recognizes, Vasquez proffered evidence of bigoted statements directed at him by Berglund. She told Vasquez that because he was Hispanic and male, "he was too aggressive, macho and domineering with the minors." She also stated that he had a "typical Hispanic macho attitude" and needed to be less aggressive with the minors. These statements were openly hostile to Vasquez and suggested that he was dangerous and unqualified to work with minors because of his race and sex. In addition, Berglund later told Vasquez that he should transfer out of the Turquoise cottage because "Hispanics do well in the field. You'll be better off. You'll get days off." These statements revealed Berglund's stereotyping of Hispanics as lazy and unambitious, and are akin to "racial profiling" in the workplace.

However, the hostility toward Vasquez did not stop there. Instead, Berglund engaged in a campaign of deprecation and harassment, the aim of which can only be interpreted as an attempt to cast Vasquez as incompetent and to have him transferred out of the Turquoise cottage. Berglund's harassing conduct included filing a number of false and harassing complaints against Vasquez and threatening him with reprisals and revenge (that she would "get" him). In addition, Berglund subjected Vasquez to public humiliation, screaming at him in front of the minors on several occasions. During one of these episodes, Berglund publicly accused Vasquez of permitting the minors to get high by sniffing fresh paint. During another, she berated him and called him a "juvenile delinquent."

The majority recognizes that Vasquez proffered some evidence of Berglund's "unfair treatment," but fails to consider his claims in the backdrop of ongoing discriminatory behavior alleged by Vasquez. Maj. Op. at 644. Yet, Berglund's repeated attacks on Vasquez' competence and character are inextricably part of the pattern of racial and sexual hostility that Berglund exhibited against Vasquez. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998). As we stated in Draper, "[d]iscriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstance may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of [his race and gender]." Id. Indeed, Berglund's allegedly false complaints, such as her claim that Vasquez exhibited "inappropriate and provocative behavior with the individual minors," were consistent with her stereotyping that he was too domineering with the minors and had a "typical Hispanic macho attitude." See Allen v. Mich. Dep't of Corrections, 165 F.3d 405, 411 (6th Cir. 1999) (finding support in plaintiff's claim that he was "treated unfairly" because his allegation of being more closely monitored than white employees was consistent with his supervisor's statement that "niggers can't be trusted").

Discounting the ongoing nature of the harassment and finding only "isolated offensive remarks" and "complaints about unfair treatment," the majority concludes that Vasquez has not proffered sufficient evidence of severe or pervasive harassment to survive summary judgment. Maj. Op. at 644. In so doing, the majority compares Vasquez' allegations to the facts of other cases to conclude that he has not suffered severe or pervasive harassment. However, it is a violation of individual justice to claim that, just because the discrimination in this case was not as severe or pervasive as some of those cases in which we found discrimination, Vasquez has no remedy. The issue is not whether the discrimination was as severe or pervasive as in other cases, but whether Vasquez has presented sufficient facts to have his case decided by a jury. Moreover, the majority's notation that Vasquez alleges "only a few incidents" in which Berglund made discriminatory remarks sends the offensive message that discrimination in small doses is permissible. Maj. Op. at 642.

Here, Vasquez proffered evidence that he was subjected to "derogatory racial [and sexual] insults," which were directed at him personally. See Allen, 165 F.3d at 410-11 (reversing summary judgment for the employer on a hostile work environment claim when the employee's superiors told him "he was lazy like the rest of his people and that is why they are all in prison," "I'm writing your black ass up," and "niggers can't be trusted."); cf. Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (affirming summary judgment when only one offensive comment was directed at the employee). Berglund also publicly humiliated and demeaned Vasquez, yelling at him in front of the minors and filing false charges against him. Ray, 217 F.3d at 1245-46 (reversing summary judgment when the employee's supervisors "regularly yelled at him during staff meetings; . . . called him a `liar,' a `troublemaker,' and a `rabble rouser,' and told him to `shut up'").

The tenor of the majority opinion is that Vasquez' claim fails because he simply experienced an interpersonal conflict with Berglund. See Maj. Op. at 638, 644. It is beyond dispute that a personality conflict is insufficient to trigger the protections of Title VII. However, this is not the case at hand. Vasquez has proffered evidence that his "conflict" with Berglund originated from her discriminatory statements and the animus she harbored against him as a Hispanic male. While discrimination against Hispanics is not new, the need to prevent and remedy discrimination against this group is particularly important today in light of the fact that the Hispanic community continues to grow across the country. Sadly, the majority fails to grasp that the nature of Berglund's conflict with Vasquez is in all likelihood based on her animosity towards Hispanics. The substance of her comments reveals particularly offensive stereotypes about Hispanics as lazy, and about Hispanic males as aggressive and domineering. Our society should not tolerate this type of racial prejudice anywhere, but it is particularly pernicious in a protected environment such as the workplace. Berglund's racist remarks, combined with the allegations of her humiliating comments and false accusations, suffice to raise a triable issue as to whether Vasquez was subjected to an abusive workplace because of his race and his sex.

The majority overlooks the actions of Vasquez' employer in analyzing his hostile work environment claim. However, the failure of his superiors to do anything to stop or to remedy the known harassment by Berglund is a violation of Title VII in and of itself.

We have held that, "[b]y tolerating sexual harassment against its employees, the employer is deemed to have adversely changed the terms of their employment in violation of Title VII." Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001) (citation and footnote omitted).

If the employer fails to take corrective action after learning of an employee's sexually [or racially] harassing conduct, or takes inadequate action that emboldens the harasser to continue [her] misconduct, the employer can be deemed to have "adopt[ed] the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy."

Id. at 1192 (third alteration in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). In such cases, it is the "adequacy of the employer's response, not the co-worker's underlying behavior[,]" that is alleged to be discriminatory. Id. at 1191 (identifying relevant conduct for determining whether the plaintiff's claim was time barred).

Here, both Leeds and Vasquez' direct supervisor, Star French ("French"), were aware of Berglund's discriminatory conduct, but did nothing to stop it. In fact, when Vasquez filed a grievance concerning Berglund's statements that he had a "typical Hispanic macho attitude," Leeds informed Vasquez that the only step she would take to remedy the situation was to transfer him from the Turquoise cottage. Further, the only way that he could avoid the transfer was by withdrawing his grievance.

In addition, French testified at her deposition that she had encouraged Vasquez to transfer away from Berglund and could not understand why he would not. She lamented to him: "Oh my God, let the pain end. Stop the pain. Do you enjoy the pain?" Thus, French was fully aware of Berglund's harassment of Vasquez, but she did nothing to alleviate the hostility of the situation.

Neither Leeds nor French took "corrective action" that was "reasonably calculated to end the harassment." Id. at 1192 (internal quotation marks and citations omitted). Rather, Leeds' threat to transfer Vasquez only demonstrated to both him and Berglund that their employer would permit the harassment to continue. In fact, the lack of corrective action emboldened Berglund, who continued to make further discriminatory statements, such as her derisive suggestion that Vasquez transfer because Hispanics are better suited for the field. Under these "circumstances, the non-action by the employer can fairly be characterized as acquiescence, i.e., having changed the terms and conditions of employment to include putting up with harassment from other employees." Brooks v. City of San Mateo, 229 F.3d 917, 924 n. 4 (9th Cir. 2000) (citation omitted).

In short, Vasquez was subjected to explicit racial and sexual epithets, as well as ongoing harassment by Berglund. Whether the harassment was sufficiently severe or pervasive to constitute a hostile working environment under Title VII should be left to the jury to determine. Further, the inaction of Vasquez' employer exacerbated, rather than corrected, the hostility of the workplace. As the Supreme Court stated in Oncale v. Sundowner Offshore Services, Inc., "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Under the totality of the circumstances, a reasonable jury could conclude that Vasquez was subjected to "a pattern of ongoing and persistent harassment severe enough to alter the conditions of [his] employment." Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir. 2000), rev'd in part on other grounds, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal quotation marks and citations omitted). In the alternative, a reasonable jury could find that the failure of Vasquez' employer to stop the harassment "changed the terms and conditions of [his] employment to include putting up with harassment" from Berglund. Brooks, 229 F.3d at 924 n. 4 (citation omitted).

Under Title VII, an employee has a "right to work in an environment free from discriminatory intimidation, ridicule, and insult." Meritor Sav. Bank, FSB., 477 U.S. at 65, 106 S.Ct. 2399 (citation omitted). Here, Vasquez has proffered evidence that he was subjected to an adverse employment action because of his race and sex, as well as his protected activities. He also proffered evidence that he was subjected to an abusive workplace because he is a Hispanic male, and that his employer failed to do anything about it. The proffered evidence is sufficient to survive summary judgment, and Vasquez' claims of disparate treatment, hostile work environment, and retaliation should go to a jury. Accordingly, I dissent.