Appeals from the United States District Courtfor the District of HawaiiAlan C. Kay, District Judge, PresidingArgued and SubmittedMarch 14, 1997--San Francisco, CaliforniaFiled July 3, 1997Before: Otto R. Skopil, Jr., William C. Canby, Jr. andPamela Ann Rymer, Circuit Judges.Opinion by Judge Skopil
_____________________________COUNSEL Clayton C. Ikei, Honolulu, Hawaii, for the plaintiff-appellee-cross-appellant.Theodore G. Meeker, Assistant United States Attorney, Hono-lulu, Hawaii; Major Raymond T. Lee, III, United StatesMarine Corps, Santa Ana, California, for the defendant-appellant-cross-appellee.
_____________________________OPINION SKOPIL, Circuit Judge:In this Title VII action, an Asian-American woman allegesincidents of disparate treatment and retaliation by her formeremployer, the Department of the Navy. The district courtruled in favor of the Navy on all but one of plaintiff's claims.On the remaining claim, the court concluded that the Navyretaliated against the plaintiff for filing an administrativecomplaint with the Equal Employment Opportunity Commis-sion ("EEOC"). The court awarded attorney's fees.The Navy appeals the award of fees. Plaintiff cross-appealsthe court's rejection of her other claims. We have carefullyreviewed the record, and conclude that no reversible erroroccurred. Accordingly, we affirm.I. BackgroundPlaintiff Barbara Hashimoto worked for the Navy as a Bud-get Analyst from April 1984 through June 1986. For most ofthis time, Captain Craig Hinman was her immediate supervi-sor and Major Steven Lowery was her second line supervisor-- both white males. The relationship between Hashimotoand her supervisors was quite turbulent. Just prior to her ter-mination due to a reduction in force ("RIF"), she initiated anadministrative complaint. In that complaint ("Case 1"), Hashi-moto alleged that Hinman and Lowery subjected her to fouradverse employment actions because of her race and genderand because she met with an Equal Employment Opportunity("EEO") counselor: (1) a 5-day suspension effective January27, 1986; (2) a 14-day suspension effective April 10, 1986;(3) denial of a within grade salary increase ("WGI") on April13, 1986; and (4) termination by RIF on June 2, 1986.While her first complaint was pending, Hashimoto filed asecond administrative complaint ("Case 2") in which shealleged that, when she applied for a job with the Army in1988, she received a negative job reference from Lowery inretaliation for filing her Case 1 administrative complaint. Thetwo complaints were consolidated and eventually reached theEEOC, which rejected all of Hashimoto's Case 1 claims. Onthe Case 2 retaliation claim, however, the EEOC found thatthe negative reference was motivated by retaliatory animusbut that Hashimoto would not have been hired by the Armyin any event. The EEOC ordered the Navy to undertake cer-tain measures to remedy the retaliatory conduct and to payHashimoto's attorney's fees.Hashimoto sought a trial de novo on all five of her adminis-trative claims. Prior to trial, however, the district court dis-missed the 5-day suspension and RIF claims on proceduralgrounds. Further, the district court granted the Navy's motionfor summary judgment on the retaliation portion of her Case1 claims. The court also allowed Hashimoto to seek enforce-ment of the EEOC's finding of retaliation on her Case 2claim, while receiving a trial de novo on the remaining issues.Thus, the only issues for trial were Hashimoto's discrimina-tion claims relating to her 14-day suspension and denial of theWGI, and her claim that the Army would have hired her in theabsence of the negative job reference.There were two jury trials on Hashimoto's claims. The firsttrial ended in a $300,000 verdict for Hashimoto, but that ver-dict was vacated by the district court and a new trial wasordered. A second trial resulted in a $280,000 verdict forHashimoto. That verdict, however, was vacated by the districtcourt in light of Landgraf v. USI Film Products,
511 U.S. 244
(1994), which held that the 1991 amendments to the CivilRights Act of 1964, providing for jury trials and compensa-tory damages, were not retroactive in application. Hashimotodoes not contest the district court's decisions to vacate thejury verdicts.To avoid a third trial, and "in the interests of judicial effi-ciency and economy," the parties were instructed to submitproposed findings of fact and conclusions of law based on theevidence admitted in the second trial. The district court there-after issued its findings of fact and conclusions of law.Hashimoto v. Dalton, 870 F. Supp. 1544 (D. Haw. 1994). Thecourt concluded on the Case 1 discrimination claims that "theadverse personnel actions taken against Plaintiff were not theresult of any discriminatory animus but rather because of herrepeated refusal or failure to follow instructions, her refusalto perform assigned tasks, her obstinate manner of dealingwith her superiors, and her inability to work under the super-vision of military officers." Id. at 1547. Further, the court con-cluded that Hashimoto's Case 2 retaliation claim wasmeritless because the Army would not have hired her even ifa negative job reference had not been disseminated. Id. Nev-ertheless, the court specifically enforced the EEOC's award ofattorney's fees, and awarded additional attorney's fees andcosts on the Case 2 retaliation claim to the extent that theexpenditures related to enforcement of the EEOC's award ofattorney's fees.The government appeals the district court's order awardingHashimoto attorney's fees and costs. Hashimoto cross-appealsthe district court's orders (1) dismissing on proceduralgrounds her claims relating to her 5-day suspension and hertermination pursuant to a RIF; (2) granting summary judg-ment in favor of the government in her Case 1 retaliationclaim; and (3) granting judgment in favor of the governmenton her remaining Case 1 disparate impact claims.II. Attorney's FeesA. The Title VII Violation The district court concluded that "[a] negative job referenceis an actionable negative personnel action under Title VII."Hashimoto, 870 F. Supp. at 1557. The court also accepted theEEOC's findings that Lowery's dissemination of a negativejob reference to the Army was motivated by unlawful retalia-tory animus. On this basis, the district court concluded thatHashimoto was entitled to the attorney's fees awarded by theEEOC.The government contends that the district court's enforce-ment of the EEOC's attorney's fee award is unsupportablebecause Hashimoto failed to establish a violation of Title VII.In the government's view, a negative employment referenceis not an independently actionable adverse "personnel action."Instead, the only "personnel action" involved here was theArmy's decision not to hire Hashimoto. Because, as the dis-trict court found, the negative reference did not cause thisadverse "personnel action" by the Army, the government pos-its that Hashimoto failed to establish a Title VII violation.[1] The government's lack of causation argument must fail."There is little question that the dissemination of adverseemployment references can constitute a violation of Title VIIif motivated by discriminatory intent." London v. Coopers &Lybrand, 644 F.2d 811, 817 (9th Cir. 1981). Thus, it is besidethe point that Lowery's negative job reference was not thereason Hashimoto did not get the job with the Army. Low-ery's dissemination of the negative job reference is an action-able employment decision. Both the EEOC and the districtcourt found that Lowery gave Hashimoto the negative refer-ence in retaliation for her EEOC activities, and the govern-ment does not challenge that finding on appeal. Thus, therequisite causal connection is established.[2] The government's initial misstep leads it to the errone-ous conclusion that Price Waterhouse v. Hopkins, 490 U.S.228 (1989), supports its position. On the basis of statementsmade in the various opinions of a divided Supreme Court, thegovernment asserts that there can be no Title VII violationhere because the Army did not rely upon Lowery's negativereference in its decision not to hire Hashimoto. The pluralityopinion in Price Waterhouse concludes that "an employershall not be liable if it can prove that, even if it had not taken[an illegitimate factor] into account, it would have come tothe same decision regarding a particular person. " 490 U.S. at242. Once it is understood, however, that it is the referenceitself which is the actionable employment decision, the plural-ity's statement fully supports the district court's decision.Properly applied to this case, that statement merely means thatthe government could have avoided Title VII liability if it hadestablished that Lowery would have given Hashimoto thenegative employment reference even if she had not filed acomplaint with the EEOC. This, according to both the EEOCand the district court, the government failed to do. Thus, thedistrict court did not flout the teachings of Price Waterhousein holding that Lowery's conduct violated Title VII.The other cases upon which the government relies do notsupport the government's position for the same reason. Thosecases would be apposite only if the Army's decision not tohire Hashimoto was the relevant employment decision. Aspreviously established, however, the adverse "personnelaction" at issue here is Lowery's dissemination of the nega-tive reference itself. Thus, those cases do not apply. See, e.g.,Ruggles v. California Polytechnic State Univ., 797 F.2d 782(9th Cir. 1986) (relevant employment action was failure tohire); Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655(7th Cir. 1991) (en banc) (discharge); Cesaro v. LakesideCommunity Sch. Dist., 953 F.2d 252 (6th Cir.) (failure tohire); Wilson v. Stroh Companies, Inc., 952 F.2d 942 (6th Cir.1992) (discharge); Shager v. Upjohn Co., 913 F.2d 398 (7thCir. 1990) (discharge).[3] In a closely related argument, the government furtherasserts that because Lowery's reference did not inflict anyemployment-related harm upon Hashimoto, there can be noTitle VII violation. This presents a thornier question. Tradi-tionally, in cases alleging retaliation, the retaliatory conducttakes the form of discharge, demotion, failure to promote, orsimilar actions that clearly inflict tangible, employment-related harm upon the employee. A retaliatory negative jobreference, by contrast, does not itself inflict tangible employ-ment harm in the traditional sense. It requires a prospectiveemployer's subsequent, adverse action (failure to hire) in reli-ance on that reference to create the demonstrable employmentharm. The government correctly points out that in every pub-lished case involving a negative reference, the reference alleg-edly resulted in a failure to hire by the prospective employer.The government contends that, because such an injury is lack-ing here, no Title VII liability attached.[4] We reject the government's "no harm, no foul"approach. A plaintiff may seek relief for retaliatory actionstaken after her employment ends if "the alleged discrimina-tion is related to or arises out of the employmentrelationship." Passer v. American Chemical Soc., 935 F.2d322, 330 (D.C. Cir. 1991) (collecting cases). Title VII "doesnot limit its reach only to acts of retaliation that take the formof cognizable employment actions such as discharge, transfer,or demotion." Id. at 331.1Moreover, we have squarely rejected a similar "no harm,no foul" argument in the Title VII context. In EEOC v. Haci-enda Hotel, 881 F.2d 1504 (9th Cir. 1989), the EEOC initi-ated an employment discrimination action alleging that theemployer had violated Title VII by terminating three pregnantemployees. The employer argued that it should not be heldliable because the employees suffered no "damage " as a resultof the terminations since two of the employees were rehiredfollowing their pregnancies without loss of seniority or otherbenefits, and the third employee would not have been rehiredin any event because of her poor work performance. HaciendaHotel, 881 F.2d at 1511. We vigorously rejected the employ-er's argument: [T]he Hacienda's view of its employees' pregnancy discrimination claims is "no harm, no foul." Beyond the cavalier attitude such statements convey, appel- lant's argument evidences an almost total misappre- hension of the purposes and operation of federal employment discrimination law. . . . Appellant is confusing the liability determination with the relief phase.. . . . Even if no employee suffered a "tangible loss " of an "economic nature," i.e., a loss of seniority or wages or other monetarily quantifiable employment bene- fits, appellant's implementation of a policy or prac- tice under which pregnant employees were treated differently from other temporarily-disabled employ- ees with similar capacity for work would still be a violation of both the letter and spirit of Title VII's prohibition against pregnancy discrimination.Id. at 1511-12.[5] Just as in Hacienda Hotel, the government's argumentin this case fails to recognize the distinction between a viola-tion and the availability of remedies. Lowery's disseminationof the adverse job reference violated Title VII because it wasa "personnel action" motivated by retaliatory animus. Thatthis unlawful personnel action turned out to be inconsequen-tial goes to the issue of damages, not liability. See, e.g., Smithv. Secretary of Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981)("[T]he questions of statutory violation and appropriate statu-tory remedy are conceptually distinct. An illegal act of dis-crimination--whether based on race or some other factor suchas a motive of reprisal--is a wrong in itself under Title VII,regardless of whether that wrong would warrant an award of[remedies].") (citation omitted); Sparrow v. Piedmont HealthSys. Agency, Inc., 593 F. Supp. 1107, 1119 (M.D.N.C. 1984)(agency's retaliatory refusal to provide a letter of recommen-dation violated Title VII, but plaintiff was not entitled to aremedy because he failed to demonstrate any harm resultingfrom the agency's action).[6] Further, as in Hacienda Hotel, adoption of the govern-ment's position would undermine both the letter and the spiritof Title VII's prohibition against actions in retaliation forEEO activities. We have recognized that actions taken inretaliation for the exercise of Title VII rights can have a"deleterious effect on the exercise of these rights by others."Garcia v. Lawn, 805 F.2d 1400, 1405 (9th Cir. 1986).Although this particular harm was not suffered by Hashimotoin the present case because she was no longer employed bythe Navy, the chilling effect which Lowery's retaliatory con-duct might have on the remaining employees under his super-vision does counsel against accepting the government'snarrow conception of what constitutes a "violation" of TitleVII. Accordingly, we conclude that the retaliatory dissemina-tion of a negative employment reference violates Title VII,even if the negative reference does not affect the prospectiveemployer's decision not to hire the victim of the discrimina-tory action.B. The Fee AwardThe district court awarded Hashimoto $20,565.19 in attor-ney's fees for her counsel's successful prosecution of theretaliation claim before the EEOC. The court also awardedHashimoto an additional $10,982.50 in attorney's feesincurred in her action to enforce that award in the districtcourt. The court expressly declined to award attorney's feesfor her counsel's efforts to establish that the Army wouldhave hired her in the absence of the retaliation by Lowery.Hashimoto, 870 F. Supp. at 1557. The government argues thatthe district court failed to review the legal propriety of theattorney's fees award ordered by the EEOC. In the govern-ment's view, the EEOC's award of attorney's fees was inap-propriate as a matter of law because Hashimoto was not a"prevailing party" in the EEOC action. We disagree.[7] In cases brought under 42 U.S.C.S 2000e-16(a), "thecourt, in its discretion, may allow the prevailing party . . . areasonable attorney's fee (including expert fees) as part of thecosts." 42 U.S.C. S 2000e-5(k). A litigant need not prevail onevery issue, or even on the "central issue" in the case, to beconsidered the prevailing party. Texas State Teachers Ass'n v.Garland Independent Sch. Dist.,
489 U.S. 782, 790
-91 (1989).It is enough that she succeeds "on any significant claimaffording some of the relief sought." Id. at 791. If the plaintiffis only partially successful in seeking the relief, and achievesonly some of the benefit sought by the litigation, she is stillconsidered the prevailing party. Stivers v. Pierce, 71 F.3d 732,751 (9th Cir. 1995) (citing Farrar v. Hobby,
506 U.S. 103
,111-12 (1992)).2 "The degree of success is irrelevant to thequestion whether the plaintiff is the prevailing party." Id.[8] Here, Hashimoto sought a determination of retaliation,reinstatement and backpay in her action before the EEOC.The EEOC declared that Lowery's bad character referencewas indeed motivated by retaliatory animus, but declined toaward reinstatement or backpay. Instead, to remedy Lowery'sretaliatory actions against Hashimoto, the EEOC ordered theNavy to (1) cease and desist its practice of notifying prospec-tive employers of its employees' or former employees' partic-ipation in protected EEO activity; (2) remove fromHashimoto's personnel files the negative character referencedisseminated by Lowery; (3) provide EEO training to Low-ery and all supervisory staff within 180 days; and (4) postcopies of an EEOC notice throughout the camp.3The government contends that the EEOC's finding of retal-iation and the remedial measures it imposed are insufficientto confer "prevailing party" status upon Hashimoto. To sup-port its position, the government relies on Slade v. U.S. PostalService, 952 F.2d 357 (10th Cir. 1991), and Walker v. Ander-son Electrical Connectors, 944 F.2d 841 (11th Cir. 1991). InSlade, the plaintiff successfully sought a determination by theEEOC that the Postal Service had discriminated against himon the basis of race in its decision not to hire him. 952 F.2dat 362. The EEOC declined, however, to award the plaintiffback pay or benefits. The plaintiff asserted that the EEOC'sfinding of discrimination entitled him to attorney's fees as a"prevailing party." The Tenth Circuit rejected this argumenton the ground that plaintiff had obtained no relief on the mer-its of his claim. Id.In Walker, the plaintiff obtained a jury finding of sexualharassment on the part of her employer, but the jury declinedto award damages. The plaintiff asserted that she was a"prevailing party" and therefore entitled to attorney's fees.The Eleventh Circuit rejected this argument, reasoning that ajury's finding of harassment, unaccompanied by any relief, "isnot the stuff of which legal victories are made. " 944 F.2d at847 (quoting Hewitt v. Helms,
482 U.S. 755, 760
(1987)).[9] The government asserts that Slade and Walker apply tothis case because here, as in those cases, "[t]he most that canbe said for [Hashimoto's] `victory' was that Major Lowerywas declared to have acted in a discriminatory fashion." BothSlade and Walker, however, are distinguishable. Here, theEEOC did more than merely determine that Hashimoto hadbeen the victim of a retaliatory negative character reference.Although it did not order reinstatement or backpay, it didorder a panoply of remedial measures, at least some of whichwere unquestionably personal to Hashimoto. The govern-ment's failure to acknowledge these important aspects of theEEOC's disposition of Hashimoto's claim manifests an overlynarrow view of what constitutes a legal "victory. " We there-fore conclude that the EEOC's order effected a "materialalteration in the legal relationship between plaintiff anddefendant" sufficient to confer prevailing party status uponHashimoto. See Stivers, 71 F.3d at 753 n.10 (citing Farrar,
506 U.S. at 111
-12); see also Smith, 659 F.2d at 1122 (plain-tiff who is subject to an adverse performance evaluation inretaliation for EEO activities, but suffers no financial harmfrom the evaluation, is a "prevailing party" entitled to attor-ney's fees even though only proper relief on the merits isremoval of the improper evaluation from his personnel file).The government alternatively challenges the reasonable-ness of the fee award, arguing that because Hashimoto tooknothing tangible from either her EEOC or district court pro-ceedings, "the only reasonable fee is no fee at all." Weacknowledge that, in cases where a civil rights plaintiff"prevails" but receives only de minimis relief and achievesonly "technical" success, the court is permitted to bypass thegeneral rule requiring calculation of a lodestar and simplyestablish a low fee or no fee at all. See Morales v. City of SanRafael, 96 F.3d 359, 362-63 (9th Cir. 1996) (interpretingFarrar). Whether the plaintiff's "success is purely technicalor de minimis," however, is determined by examining factorsbeyond the amount of money damages awarded. Id . at 363(quoting Farrar,
506 U.S. at 117
(O'Connor, J., concurring))."Primary among such other considerations is `the significanceof the legal issues on which the plaintiff claims to have pre-vailed' and the `public purpose' the plaintiff's litigationserved." Id.[10] We have recently recognized that a plaintiff whoachieves a "significant nonmonetary result not only for him-self but for the community in general" attains more than a"technical" victory. Id. In Morales, for example, the deterrenteffect of a nominal award was held to serve "the public pur-pose of helping to protect [the plaintiff] and persons like himfrom being subjected to similar unlawful treatment in thefuture." Id. at 364-65. Here, as in Morales, Hashimotoobtained relief which not only benefited her personally, butalso served to assist persons like her in that the EEOC's reme-dial measures prevented others from being subjected to retal-iatory actions by the Navy. We therefore conclude that thedistrict court properly declined to invoke the Farrar "no feeat all" exception for cases in which the relief obtained is deminimis. See Stivers, 71 F.3d at 753 (plaintiff who obtains"tangible results," but does not obtain all of the relief sought,is still entitled to fees). For these reasons, the district court didnot abuse its discretion in awarding fees or in setting theiramount.III. Dismissal of the Case 1 Claims Arising from the5-day Suspension and the Termination Pursuant to aRIFDuring the time period relevant to this action, EEOC regu-lations required an aggrieved employee to alert an EEO coun-selor of an alleged violation within 30 days of the allegeddiscriminatory event. 29 C.F.R. S 1613.214(a)(1)(i) (1991).The district court concluded that Hashimoto failed to contactan EEO Counselor within 30 days of her 5-day suspension,and had therefore failed to exhaust her administrative reme-dies. Thus, the court granted the government's motion to dis-miss the claim relating to this suspension.[11] Hashimoto asserts that this dismissal was improperbecause she had alleged a pattern of discriminatory acts suffi-cient to support a "continuing violation" theory. Under thatdoctrine, allegations of conduct occurring prior to the limita-tions period are actionable if the complainant can show thatthey are part of a series of related acts against the complain-ant. Green v. Los Angeles County Superintendent of Schs.,883 F.2d 1472, 1480 (9th Cir. 1989). We conclude that thecontinuing violations doctrine does not save Hashimoto'sclaim relating to her 5-day suspension. To establish a continu-ing violation, one or more of the allegedly discriminatory actsmust fall within the limitations period. Id. Hashimoto failedto show that the Navy committed any discriminatory actsbetween the effective date of her 5-day suspension and theexpiration of the 30-day limitations period.[12] The district court also granted the government'smotion to dismiss Hashimoto's discrimination claims arisingfrom her termination pursuant to a RIF because she did notpursue those claims before the Merit Systems ProtectionBoard ("MSPB"). The court concluded that this failure fore-closed its exercise of jurisdiction over those claims. See Haysv. Postmaster General, 868 F.2d 328, 330 (9th Cir. 1989).Hashimoto contends that the district court should not havedismissed these claims because the RIF was part of a"continuous violation" on the part of the Navy. We reject thisargument. Hashimoto fails to establish how the existence ofa continuous violation would cure the jurisdictional defect inher claim relating to the RIF. A district court simply does nothave jurisdiction over discrimination claims that were notraised before the MSPB. Id.IV. Summary Judgment on the Case 1Retaliation ClaimOn May 21, 1985, Hashimoto contacted an EEO counselorabout filing a complaint. According to the EEO counselor,Hashimoto believed that she was being evaluated for workwhich was no longer her responsibility to perform. Uponbeing advised by the EEO counselor of her right to file a dis-criminatory complaint, Hashimoto stated that she "did notreally believe that this is a discriminatory complaint." Never-theless, the EEO counselor sent a memorandum to the person-nel office entitled "POTENTIAL EEO COMPLAINT"detailing the interview with Hashimoto.Hashimoto alleged that within a few months of her meetingwith the EEO counselor, certain adverse employment actionswere taken against her. The district court granted the govern-ment's motion for summary judgment on this retaliation claimon the ground that Hashimoto failed to establish that the gov-ernment retaliated against her for engaging in "protectedactivity." Hashimoto contests this conclusion.[13] To succeed in a retaliation claim, the plaintiff mustdemonstrate (1) that she was engaging in protected activity,(2) that she suffered an adverse employment decision, and(3) that there was a causal link between her activity and theemployment decision. Folkerson v. Circus Circus Enter-prises, Inc., 107 F.3d 754, 755 (9th Cir. 1997). The districtcourt determined that Hashimoto satisfied the last two ele-ments, but failed to establish the first element of her primafacie case.The district court concluded that Hashimoto's contact withthe EEO counselor was not a "protected activity " in thisinstance because, at the time of her meeting with the EEOcounselor, she did not "reasonably believe that the employerhad engaged in an unlawful employment practice" under TitleVII. Rather, in the district court's view, she "merely soughtto have her personal problem [of an outdated job description]remedied." The court analogized Hashimoto's retaliationclaim to the claim at issue in Jurado v. Eleven-Fifty Corp.,813 F.2d 1406 (9th Cir. 1987). There, an Hispanic disc jockeycomplained to his program director about an on-air English-only policy instituted at the radio station where he wasemployed. He was subsequently fired. The court upheld thedistrict court's grant of summary judgment on his retaliationclaim, reasoning that his complaint to the program directorevidenced concern over his personal success at the stationrather than a concern about discrimination. Thus, it was nota "protected activity" for purposes of establishing a primafacie retaliation claim. Jurado, 813 F.2d at 1411-12.Hashimoto asserts that her meeting with the EEO counselorwas "protected activity" because, at the time she set-up themeeting, she felt that the failure to update her job descriptionwas motivated by race and sex discrimination. In Hashimoto'sview, that she no longer felt this action was discriminatory atthe end of the meeting is of no moment, and the district courterred in focusing on this fact. See Gifford v. Atchison, Topekaand Santa Fe Ry. Co., 685 F.2d 1149, 1156-57 (9th Cir. 1982)(employee need not be aware that practice is unlawful underTitle VII at time of complaint in order for complaint to beprotected). Hashimoto's argument is compelling, but we con-clude that the district court erred at a more fundamental level.[14] Adopting the approach taken in Jurado, the districtcourt here "looked behind" Hashimoto's meeting with theEEO counselor and concluded that it was not protected activ-ity because she did not at that time allege discrimination.Unlike in Jurado, however, Hashimoto did more here thanmerely complain to a superior. Rather, she contacted an EEOcounselor about her concerns. Even assuming her concernswere "personal" in nature, we conclude that this contact withthe EEO counselor was itself "protected activity."[15] An employer can violate the anti-retaliation provisionsof Title VII in either of two ways: "(1) if the [adverseemployment action] occurs because of the employee's opposi-tion to conduct made an unlawful employment practice by thesubchapter, or (2) if it is in retaliation for the employee's par-ticipation in the machinery set up by Title VII to enforce itsprovisions." Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1981) (interpreting 42 U.S.C. S 2000e-3(a) (S 704(a))). "Theconsiderations controlling the interpretation of the oppositionclause are not entirely the same as those applying to the par-ticipation clause. The purpose of the latter is to protect theemployee who utilizes the tools provided by Congress to pro-tect his rights." Sias v. City Demonstration Agency, 588 F.2d692, 695 (9th Cir. 1978). The district court appears to haveexamined Hashimoto's retaliation claim under the oppositionclause only. Under the participation clause, however, therecan be little doubt that Hashimoto's visit with the EEO coun-selor constituted participation "in the machinery set up byTitle VII." As such, it was protected activity. See, e.g., East-land v. Tennessee Valley Auth., 704 F.2d 613, 627 (11th Cir.1983) (contacting an EEO officer is protected activity);Gonzalez v. Bolger, 486 F. Supp. 595, 601 (D.D.C. 1980)("Once plaintiff . . . initiates pre-complaint contact with anEEO counselor . . . he is participating in a Title VIIproceeding." (citations omitted)), aff'd, 656 F.2d 899 (D.C.Cir. 1981). Thus, we conclude that the district court erred indetermining that Hashimoto failed to establish a prima faciecase of retaliation.The error does not, however, require that we reverse thedistrict court's grant of summary judgment on this claim.After concluding that Hashimoto failed to establish a primafacie case, the district court commented that "even if Plaintiffhad been successful in establishing a prima facie case of retal-iation, the burden would then shift to Defendant to provide alegitimate reason for the adverse employment actions."Because the government articulated legitimate, nondiscrimi-natory reasons for the actions taken against Hashimoto afterher contact with the EEO counselor, the court concluded thatsummary judgment on her retaliation claim would have beenappropriate in any event.[16] A review of the record reveals that Hashimoto madeno attempt to refute the government's legitimate explanationsfor its actions. Her affidavit accompanying her opposition tothe government's motion for summary judgment merely statesthat "when Captain Hinman learned that I had contacted anEEO counselor, his harassment of me intensified and hissupervisor supported all his actions. The letters of caution,proposed suspensions and threats of dismissal all began aftermy contact with the EEO counselor in May, 1985." Althoughthe timing of these events suffices to establish a minimalprima facie case of retaliation, it does nothing to refute thegovernment's proferred legitimate reasons for discipliningHashimoto. We therefore conclude that Hashimoto failed tocarry her burden of establishing a triable issue of fact on theultimate question of whether the government retaliatedagainst her for meeting with the EEO counselor. Thus, thedistrict court's grant of summary judgment was appropriate.See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890-91 (9th Cir.1994) ("[W]hen evidence to refute the defendant's legitimateexplanation is totally lacking, summary judgment is appropri-ate even though plaintiff may have established a minimalprima facie case.").V. Judgment on the Remaining Case 1 Claims[17] Hashimoto contends that the district court's judgmenton her Case 1 claims is flawed because it is based on clearlyerroneous findings of fact. She first asserts that the testimonyof Hinman and Lowery should not have been credited becausethey allegedly made various misstatements of fact during thefirst and second trials and in certain documents admitted intoevidence. This is a credibility determination, and we thereforetreat it as such. See Nicholson v. Rushen, 767 F.2d 1426, 1427(9th Cir. 1985) (treating assertion on appeal that witnessescommitted perjury, based solely on evidence which wasbefore the factfinder, as attack on credibility finding). Thedistrict court's credibility determinations are entitled to spe-cial deference. Fed. R. Civ. P. 52(a); Anderson v. BessemerCity,
470 U.S. 564, 573
(1985); EEOC v. Bruno's Restaurant,13 F.3d 285, 287 (9th Cir. 1993); Jordan v. Clark, 847 F.2d1368, 1375 (9th Cir. 1988) ("Credibility determinations areinsulated from appellate review.").[18] The alleged misstatements provide no reason to disturbthe district court's decision to credit Hinman and Lowery. OnFebruary 18, 1986, Hinman sent a handwritten note to Hashi-moto referencing a discussion they had on February 10. In thefirst trial, Hinman testified that he did not recall having a dis-cussion with Hashimoto during the three week period preced-ing this note. Counsel for Hashimoto subsequently pointedout the reference to the February 10 discussion, and Hinmanacknowledged his mistake. In the second trial, Hinman affir-matively stated that he had a discussion with Hashimoto onthat date. Hashimoto characterizes this as a "dramatic changein testimony" between the first and second trials. We disagreewith this characterization. Hinman justified his change in tes-timony by stating that his memory on this issue had beenrefreshed in the first trial, a justification which we concludeis reasonable under the circumstances.Hashimoto next points to the negative reference whichLowery disseminated to the Army on August 10, 1988, inwhich he wrote that Hashimoto "failed to follow guidancefrom audit teams resulting in loss to fund of app[roximately]$140,000." At trial, Lowery acknowledged that Hashimotodid not have authority to commit the expenditure of thatmoney without approval of a superior. Hashimoto fails toarticulate how the requirement of a signature by a superior torelease the money undermines Lowery's statement in the jobreference that she failed to follow guidance from the auditteam. Thus, she has established no inconsistency betweenthese statements.Hashimoto further challenges Lowery's testimony at trialregarding the termination of her position by RIF. As her RIFclaim was dismissed on procedural grounds prior to trial,however, any statements by Lowery on this matter at trialrelate to immaterial facts. The district court was not requiredto discredit Lowery's material testimony because an immate-rial part of his testimony was in dispute.Next, Hashimoto challenges the district court's finding thatHashimoto's job description accurately reflected the work thatshe was required to perform and upon which her performancewas evaluated. Hashimoto, 870 F. Supp. at 1551 (P 40). Shecontends that the district court failed to consider adequatelythe testimony of Ray Mendez and Ruth Christiansen on thismatter. The court, however, expressly found that the testi-mony of Ray Mendez lacked credibility because his assess-ment of Hashimoto's job description was based solely on theinformation provided by Hashimoto. Id. (P 39). The court didnot expressly acknowledge the testimony of Ruth Christian-sen, but "[a] judge is not required, in making findings, tomention every item of evidence and either adopt or reject it."Western Pac. Fisheries, Inc. v. SS President Grant, 730 F.2d1280, 1285 (9th Cir. 1984). The appellate court "presume[s]that the [trial] judge considers all of the evidence, and relieson so much of it as supports the finding and rejects what doesnot support the finding, unless the judge states otherwise." Id.Hashimoto also challenges the district court's specific fac-tual findings relating to her 5-day4 and 14-day suspensions.Because her 5-day suspension claim was dismissed on proce-dural grounds prior to trial, the district court's findings relatedto this incident are immaterial. Regarding the 14-day suspen-sion, the district court found that it was motivated by Hashi-moto's failure to comply with Hinman's order to prepare aturnover file, and that Hashimoto understood the order.Hashimoto, 870 F. Supp. at 1553 (PP 57-58). Hashimoto con-tends that the district court failed to address contradictory evi-dence on these points. To the contrary, the court expresslyacknowledged each and every piece of "contradictory" evi-dence which Hashimoto recites, but found that the 14-day sus-pension was justified. 870 F. Supp. at 1553 (PP 54-58). Thisfinding is not clearly erroneous.Finally, Hashimoto contends that the trial court's findings,when viewed in the light of the two contradictory jury ver-dicts, are suspicious and should be reversed as clearly errone-ous. Although the verdicts, at an intuitive level, are a causefor concern, we conclude that there is no legal basis fordeparting from the traditional "special deference " accorded atrial court's factual findings in these circumstances. Indeed,the Seventh Circuit recently approved of the procedure uti-lized in this case. In Dombeck v. Milwaukee Valve Co., 40F.3d 230 (7th Cir. 1994), the court considered whether abench trial is required when a Title VII action is erroneouslysubmitted to a jury under Landgraf. The court concluded thata district court is not required to conduct an entirely new trial.Dombeck, 40 F.3d at 237. "Although as an appellate courtreviewing a cold record, we are unable to make credibilitydeterminations and to resolve existing factual disparities, thedistrict court would not operate under the same disability, asthat court heard the evidence along with the jury. The error insubmitting [plaintiff's] Title VII claim to a jury could thus becured by the entry of independent findings of fact and conclu-sions of law by the district judge." Id. That is precisely whatthe district court did here, and we decline to second-guess thedistrict court's findings.VI. Conclusion[19] The district court did not err in awarding Hashimotoattorney's fees for her counsel's efforts in prosecuting herCase 2 retaliation claim. Further, the district court did not errin dismissing two of Hashimoto's Case 1 claims on proce-dural grounds, granting summary judgment in favor of thegovernment on her Case 1 retaliation claim, and grantingjudgment in the government's favor on the remaining Case 1claims.AFFIRMED. the end
___________________________FOOTNOTES 1 Although Passer was an ADEA case, the court specifically concludedthat the ADEA anti-retaliation provision is "parallel to the anti-retaliationprovision contained in Title VII," and that "cases interpreting the latterprovision are frequently relied upon in interpreting the former." 935 F.2dat 330.2 The court in Stivers was interpreting 42 U.S.C. S 1988, rather than 42U.S.C. S 2000e-5(k). The Supreme Court has recognized, however, thatthe standards articulated in cases interpreting section 1988 "are generallyapplicable in all cases in which Congress has authorized an award of feesto a `prevailing party.' " Hensley v. Eckerhart,
461 U.S. 424
, 433 n.7(1983); see also Schwarz v. Secretary of Health & Human Servs., 73 F.3d895, 901 n.2 (9th Cir. 1995).3 The notice which the Navy was ordered to post conspicuously reads asfollows: "[T]he Department of the Navy will not in any manner restrain,interfere, coerce, or retaliate against any individual who exercises his orher right to oppose practices made unlawful by, or who participates in pro-ceedings pursuant to, Federal equal employment opportunity law."4 The incidents underlying the 5-day suspension were: (1) Hashimoto'salleged failure to keep Hinman apprised of her whereabouts; (2) her defi-ance of Hinman's instruction to deliver paychecks to a librarian; and(3) her refusal to correct her time card. Hashimoto, 870 F. Supp. at 1552(P 50).