RAY v HENDERSON, 9915289
U.S. 9th Circuit Court of Appeals
RAY v HENDERSON
9915289
WILLIAM J. RAY,
Plaintiff-Appellant, No. 99-15289
v. D.C. No.
CV-97-01776-GEB
WILLIAM J. HENDERSON, Postmaster
General, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
April 26, 2000--San Francisco, California
Filed July 7, 2000
Before: Betty B. Fletcher, Arthur L. Alarcon, and
Michael Daly Hawkins
Opinion by Judge B. Fletcher
_________________________________________________________________
COUNSEL
Erik A. Rapoport, San Francisco, California, for the plaintiff-
appellant.
Debora G. Luther, Assistant United States Attorney, Sacra-
mento, California, for the defendant-appellee.
_________________________________________________________________
OPINION
B. FLETCHER, Circuit Judge:
In this case we are called upon to determine whether Wil-
liam J. Ray suffered adverse employment actions after com-
plaining of harassment at his workplace. We hold that in our
circuit an adverse employment action is adverse treatment that
is reasonably likely to deter employees from engaging in pro-
tected activity. Under this standard, we conclude that Ray suf-
fered cognizable adverse employment actions when his
employer, in retaliation for Ray's complaints concerning man-
agement's treatment of women employees, eliminated
employee meetings, eliminated its flexible starting time pol-
icy, instituted a "lockdown" of the workplace, and cut Ray's
salary. We also hold that Ray has a cognizable claim for retal-
iation based on his supervisors' creation of a hostile work
environment.
I
William Ray has been a rural postal carrier in Willits, Cali-
fornia for over 28 years. In addition to Ray, there are four
other rural carriers. Ray's immediate supervisor at the Willits
Post Office is Dale Briggs, and the Postmaster is Dan Carey.
Prior to the events at issue in this case, the rural carriers
had a flexible start-time. Ray and the other carriers generally
arrived at work between 6:00 A.M. and 7:00 A.M, and they
went out on their delivery routes at 9:45 A.M. Because their
salaries were fixed, arriving early did not affect their incomes,
however it did give them time to sort mail and do other
administrative tasks before leaving on their routes.
In 1994, Ray and his co-workers became concerned about
gender bias and harassment at the post office. Several female
employees had apparently sought medical advice and trans-
fers because of harassment by Briggs. The subject of the
harassment of women first came up at a March 30, 1994
Employee Involvement meeting.1 At that meeting, a female
janitorial employee raised her hand and asked to be recog-
nized to speak. Postmaster Carey "immediately wheeled
around, swinging his arm, yelled and pointed. He ordered [the
employee] out of the meeting." After she had left, Ray spoke
up. He stated his objections to the treatment of women at the
post office. Postmaster Carey vehemently denied the charges,
and berated Ray as a "liar."
Ray next made a complaint about the treatment of women
at an April 7, 1994 Rural Carriers Employee Involvement
meeting. Carey again angrily denied the charges. After these
complaints failed to spur any change, Ray and two of his co-
workers wrote a letter complaining of the harassment of
women to Lito Sajones, Carey's supervisor.
The letter prompted a meeting, held in the nearby Ukiah
Post Office on June 15, 1994, regarding the alleged harass-
ment. At that meeting, Carey stated his displeasure that Ray
had written the complaint to his supervisor. He said that,
because of the letter, "I may have to change my whole
approach to management. I've been a manager for eighteen
years. I have left you alone. Its called self-management. I may
have to change that."
Carey did not effectuate that threat until February 1995.
However, in the meantime Briggs and Carey publicly berated
Ray on a regular basis. For example, Briggs yelled at Ray at
a staff meeting on November 10, 1994, after Ray had made
a suggestion for improving efficiency at the office. On
December 24, 1994, Postmaster Carey called Ray a "rabble
rouser" and a "troublemaker," and said he would cancel all
future Employee Involvement meetings at the post office,
apparently to avoid further complaints about gender bias and
harassment. He also stated that "if Bill Ray has so much time
for talking, maybe he is coming in [to the office ] too early."
This was another veiled threat to end the "self management"
policy under which workers set their own starting and finish-
ing times.
One week later, Ray met with Briggs and Carey to discuss
employees' rights to communicate with other employees. Ray
fled the meeting after Carey yelled at him and made physi-
cally threatening gestures toward him.
One month later, on January 31, 1995, Ray and the union
shop steward, Bob Daitoku, met with Carey to discuss
Carey's recent decision to cancel the Employee Involvement
meetings. Carey stated that "We're not having any E.I. pro-
gram as long as you're writing letters over my head."
Postmaster Carey made good on his threat to eliminate both
the Employee Involvement program and the "self-
management" policy soon after the January meeting. In Feb-
ruary 1995, Briggs announced that all rural carriers were
required to come to work at a fixed starting time: 7:00 A.M.
When the fixed start time was instituted, the postal carriers
found themselves with less time to sort the mail prior to going
out on their routes. Ray states that he had the longest route
and the largest amount of mail to sort; the 7:00 A.M. start
time forced him to work at top speed, sorting 60 letters per
minute and 40 magazines per minute, even though the Rural
Carrier Handbook states that the standard allowable rate for
sorting mail is 16 letters per minute and 8 magazines per min-
ute. The 7:00 A.M. start time also forced Ray to work later
in the afternoon so that he could finish some of the adminis-
trative tasks that he had previously done in the morning.
In May 1995, Ray's wife became extremely ill. Ray wanted
to leave work earlier in order to take care of her, and he there-
fore requested to come to work half an hour early -- at 6:30
A.M. While Briggs granted the request, he repeatedly threat-
ened to retract the early start time.
Ray continued to be the target of Briggs and Carey's hostil-
ity during the summer and fall of 1995. On one occasion, after
Ray made a suggestion at an office meeting, Briggs yelled at
him, telling him to "shut up" and "that's a direct order."
Ray was twice falsely charged with misconduct. He was
accused, and then cleared, of opening a package. He was later
accused, and then cleared, of knocking down a mailbox on his
route. Also, a series of pranks were played on Ray during this
time. For example, someone left a dog biscuit near Ray's
work space. On another occasion, Ray found a ball bearing in
his work space.
On October 13, 1995, Ray filed a request for counseling
with the EEOC, complaining of a hostile work environment.
He alleged that the management at the Willits Post office
employed a "singling-out-and-punish method of controlling
and frightening and eventually demoralizing the workers." In
his EEOC request he also stated that:
It is because of [management's] conviction they are
doing the right thing that makes the situation so trou-
bling and actionable at law. The Joint Statement on
Violence and Behavior In the Workplace clearly out-
laws their practices and a continuation of their pat-
tern will be dire. Four people have said to me the
SPO should be killed. They were speaking out of
frustration and pain. But this should show that the
situation is not isolated to my complaint.
On November 7, 1995, Ray took stress leave from work.
On November 22, while Ray was still out on stress leave,
Postmaster Carey received a copy of the EEO complaint. He
immediately instituted a procedure called "lockdown" at the
Willits Post Office.2 During lockdown, the doors to the load-
ing docks were kept locked at all times. Every time Ray (or
another postal carrier) needed to load his vehicle with mail,
he would have to unlock the doors, push his mail cart out onto
the loading dock, go back inside and lock the doors, and then
exit through a side door to take the mail from the cart into his
car. To get back inside the post office, he would have to ring
a bell and wait for another postal employee to open the door.
The lockdown procedure turned a process that had taken sec-
onds into one taking several minutes.
Postmaster Carey states that he instituted the lockdown
because Ray's complaint to the EEO contained a death threat.
Briggs ordered Ray not to come back to the office, and called
in a Postal Inspector to determine whether the EEO letter con-
stituted a threat. The Inspector, Robert Dortch, conducted an
investigation into the matter. He determined that no death
threat had been made, and Ray was allowed to return to work.
Nonetheless, even after the inspector had cleared Ray of
wrongdoing, a temporary supervisor, Bill Wilber, announced
to the staff that Ray had made a death threat. The lockdown
at the Willits Post Office continued until February 1996, when
it was discontinued without explanation.
Also in response to the supposed death threat, on December
1, 1995 Postmaster Carey canceled Ray's 6:30 start time,
requiring him to arrive at work at 7:00 A.M. Carey stated that
he did not want Ray coming to work early because he "had
to be supervised at all times."
Ray wrote additional EEO complaint letters on December
13, 1995, January 15 and 21, 1996, and April 1, 1996. In
March 1996, Ray's postal route was reduced by 90 boxes,
causing him to lose approximately $3,000 from his annual sal-
ary. Although all the postal carriers suffered cuts in their
routes, Ray's route was cut the most.
Ray's EEO complaint was heard by an Administrative Law
Judge (ALJ) on May 28, 1997. The ALJ found that the United
States Postal Service (USPS) had retaliated against Ray after
he filed his written EEO counseling request, but rejected
Ray's remaining claims. The USPS rejected the ALJ's finding
of retaliation and entered a final agency decision rejecting all
of Ray's claims on August 13, 1997.
Ray then filed suit in federal district court. His First
Amended Complaint alleged retaliation for engaging in pro-
tected activity, discrimination, and failure to make accommo-
dations for Ray to allow him to care for his ill wife. The
district court granted summary judgment for the defendant on
all claims. Ray appeals only the grant of summary judgment
on his retaliation claim.
II
We have jurisdiction over this appeal pursuant to 28 U.S.C.
S 1291. We review the district court's decision to grant sum-
mary judgment de novo. See Robi v. Reed, 173 F.3d 736, 739
(9th Cir.), cert. denied, 120 S.Ct. 375 (1999). In reviewing an
order denying or granting summary judgment, we must deter-
mine, viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the substantive law. See id.
III
[1] Title VII prohibits employers from discriminating
against an employee because that employee "has opposed any
practice made an unlawful employment practice by this sub-
chapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under this subchapter." 42 U.S.C.S 2000e-3(a). A
postal employee may bring suit under S 2000e-3(a) pursuant
to 42 U.S.C. S 2000e-16. See Ayon v. Sampson, 547 F.2d 446,
450 (9th Cir. 1976).
[2] To make out a prima facie case of retaliation, an
employee must show that (1) he engaged in a protected activ-
ity; (2) his employer subjected him to an adverse employment
action; and (3) a causal link exists between the protected
activity and the adverse action. See Steiner v. Showboat Oper-
ating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). If a plaintiff
has asserted a prima facie retaliation claim, the burden shifts
to the defendant to articulate a legitimate nondiscriminatory
reason for its decision. Id. at 1464-1465. If the defendant
articulates such a reason, the plaintiff bears the ultimate bur-
den of demonstrating that the reason was merely a pretext for
a discriminatory motive. Id.
[3] The parties do not contest that Ray engaged in protected
activities when he complained of the treatment of women at
the Willits Post Office both informally and formally with the
EEOC.3 The heart of this dispute is whether Ray suffered cog-
nizable adverse employment actions. Ray asserts that he suf-
fered from changes in workplace policy and pay, as well as
from a hostile work environment. We first examine the defini-
tion of an adverse employment action. We then discuss
whether the changes in workplace policy and pay constitute
adverse employment actions, and whether Ray has established
a causal link between his protected activities and those
adverse employment actions. Finally, we examine whether
Ray's allegation that he was subjected to a hostile work envi-
ronment in retaliation for engaging in protected activity is
cognizable under the anti-retaliation provisions of Title VII.
IV
The circuits are currently split as to what constitutes an
adverse employment action. Although we have yet to articu-
late a rule defining the contours of an adverse employment
action, our prior cases situate us with those circuits that define
adverse employment action broadly. Other circuits that define
adverse employment action broadly are the First, Seventh,
Tenth, Eleventh and D.C. Circuits. An intermediate position
is held by the Second and Third Circuits. The most restrictive
view of adverse employment actions is held by the Fifth and
Eighth Circuits. Below, we set forth the Ninth Circuit's posi-
tion within this split, and explain the case law in the other cir-
cuits. Then, we examine what guidelines we should follow in
analyzing whether an action constitutes an adverse employ-
ment action.
[4] We have found that a wide array of disadvantageous
changes in the workplace constitute adverse employment
actions. While "mere ostracism" by co-workers does not con-
stitute an adverse employment action, see Strother v. Southern
California Permanente Medical Group, 79 F.3d 859, 869 (9th
Cir. 1996), a lateral transfer does. In Yartzoff v. Thomas, 809
F.2d 1371, 1376 (9th Cir. 1987), we held that "[t]ransfers of
job duties and undeserved performance ratings, if proven,
would constitute `adverse employment decisions.' " The
Yartzoff decision was in line with our earlier decision in St.
John v. Employment Development Dept., 642 F.2d 273, 274
(9th Cir. 1981), where we held that a transfer to another job
of the same pay and status may constitute an adverse employ-
ment action.4
Similarly, in Hashimoto v. Dalton, 118 F.3d 671, 676 (9th
Cir. 1997), we found that the dissemination of an unfavorable
job reference was an adverse employment action "because it
was a `personnel action' motivated by retaliatory animus."
We so found even though the defendant proved that the poor
job reference did not affect the prospective employer's deci-
sion not to hire the plaintiff: "That this unlawful personnel
action turned out to be inconsequential goes to the issue of
damages, not liability." Id.
In Strother, we examined the case of an employee who,
after complaining of discrimination, was excluded from meet-
ings, seminars and positions that would have made her eligi-
ble for salary increases, was denied secretarial support, and
was given a more burdensome work schedule. 79 F.3d at 869.
We determined that she had suffered from adverse employ-
ment actions. Id.
These cases place the Ninth Circuit in accord with the First,
Seventh, Tenth, Eleventh and D.C. Circuits. These Circuits all
take an expansive view of the type of actions that can be con-
sidered adverse employment actions. See Wyatt v. City of Bos-
ton, 35 F.3d 13, 15-16 (1st Cir. 1994) (adverse employment
actions include "demotions, disadvantageous transfers or
assignments, refusals to promote, unwarranted negative job
evaluations and toleration of harassment by other employ-
ees"); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)
(employer can be liable for retaliation if it permits "actions
like moving the person from a spacious, brightly lit office to
a dingy closet, depriving the person of previously available
support services . . . or cutting off challenging assignments");
Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507
(10th Cir. 1996) (employee demonstrated adverse employ-
ment action under the ADEA by showing that her employer
"required her to go through several hoops in order to obtain
her severance benefits"); Berry v. Stevinson Chevrolet, 74
F.3d 980, 986 (10th Cir. 1996) (malicious prosecution by for-
mer employer can be adverse employment action); Wideman
v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.
1998) (adverse employment actions include an employer
requiring plaintiff to work without lunch break, giving her a
one-day suspension, soliciting other employees for negative
statements about her, changing her schedule without notifica-
tion, making negative comments about her, and needlessly
delaying authorization for medical treatment); Passer v.
American Chemical Soc., 935 F.2d 322, 330-331 (D.C. Cir.
1991) (employer's cancellation of a public event honoring an
employee can constitute adverse employment action under the
ADEA, which has an anti-retaliation provision parallel to that
in Title VII).
The Second and Third circuits hold an intermediate posi-
tion within the circuit split. They have held that an adverse
action is something that materially affects the terms and con-
ditions of employment. See Robinson v. City of Pittsburgh,
120 F.3d 1286, 1300 (3d Cir. 1997) ("retaliatory conduct must
be serious and tangible enough to alter an employee's com-
pensation, terms, conditions, or privileges of employment . . .
to constitute [an] `adverse employment action' "); Torres v.
Pisano, 116 F.3d 625, 640 (2nd Cir. 1997) (to show an
adverse employment action employee must demonstrate "a
materially adverse change in the terms and conditions of
employment") (quoting McKenney v. New York City Off-
Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995)).
The Fifth and Eighth Circuits, adopting the most restrictive
test, hold that only "ultimate employment actions " such as
hiring, firing, promoting and demoting constitute actionable
adverse employment actions. See Mattern v. Eastman Kodak
Co., 104 F.3d 702, 707 (5th Cir. 1997) (only "ultimate
employment decisions" can be adverse employment deci-
sions); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
1997) (transfer involving only minor changes in working con-
ditions and no reduction in pay or benefits is not an adverse
employment action).
The government urges us to turn from our precedent, and
to adopt the Fifth and Eighth Circuit rule that only "ultimate
employment actions" such as hiring, firing, promoting and
demoting constitute actionable adverse employment actions.5
But we cannot square such a rule with our prior decisions.
Actions that we consider adverse employment actions, such as
the lateral transfers in Yartzoff and St. John, the unfavorable
reference that had no affect on a prospective employer's hir-
ing decisions in Hashimoto, and the imposition of a more bur-
densome work schedule in Strother are not ultimate
employment actions. Nor, for that matter, does the test
adopted by the Second and Third Circuits comport with our
precedent. While some actions that we consider to be adverse
(such as disadvantageous transfers or changes in work sched-
ule) do "materially affect the terms and conditions of employ-
ment," others (such as an unfavorable reference not affecting
an employee's job prospects) do not.
[5] The EEOC has interpreted "adverse employment
action" to mean "any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charg-
ing party or others from engaging in protected activity."
EEOC Compliance Manual Section 8, "Retaliation, " P 8008
(1998). Although EEOC Guidelines are not binding on the
courts, they "constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65
(1986) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)); see also Gutierrez v. Municipal Court , 838 F.2d
1031, 1049 (9th Cir. 1988). We find the EEOC test to be con-
sistent with our prior holdings, and with the holdings in the
First, Seventh, Tenth, Eleventh and D.C. Circuits.
[6] The EEOC test covers lateral transfers, unfavorable job
references, and changes in work schedules. These actions are
all reasonably likely to deter employees from engaging in pro-
tected activity. Nonetheless, it does not cover every offensive
utterance by co-workers, because offensive statements by co-
workers do not reasonably deter employees from engaging in
protected activity.
[7] As we stated in Hashimoto, the severity of an action's
ultimate impact (such as loss of pay or status)"goes to the
issue of damages, not liability." 118 F.3d at 676. Instead of
focusing on the ultimate effects of each employment action,
the EEOC test focuses on the deterrent effects. In so doing,
it effectuates the letter and the purpose of Title VII. Accord-
ing to 42 U.S.C. S 2000e-3(a), it is unlawful "for an employer
to discriminate" against an employee in retaliation for engag-
ing in protected activity. This provision does not limit what
type of discrimination is covered, nor does it prescribe a mini-
mum level of severity for actionable discrimination. See Knox
93 F.3d at 1334 ("There is nothing in the law of retaliation
that restricts the type of retaliatory act that might be visited
upon an employee who seeks to invoke her rights by filing a
complaint."). We agree with the D.C. Circuit, which noted in
Passer that:
The statute itself proscribes "discriminat[ion]"
against those who invoke the Act's protections; the
statute does not limit its reach only to acts of retalia-
tion that take the form of cognizable employment
actions such as discharge, transfer or demotion
. . . . . "[T]o establish a prima facie case under sec-
tion 704(a) [42 U.S.C. S 2000e-3(a)], a plaintiff must
show: 1) that he or she engaged in activity protected
by the statute; 2) that the employer . . . engaged in
conduct having an adverse impact on the plaintiff ;
and 3) that the adverse action was causally related to
the plaintiff's exercise of protected rights."
935 F.2d at 331 (emphasis in original) (citing Berger v. Iron
Workers reinforced Rodmen Local 201, 843 F.2d 1395, 1423
(D.C. Cir.) (per curiam), supplemented on other grounds on
reh'g, 852 F.2d 619 (D.C. Cir. 1988)).
[8] Because the EEOC standard is consistent with our prior
case law and effectuates the language and purpose of Title
VII, we adopt it, and hold that an action is cognizable as an
adverse employment action if it is reasonably likely to deter
employees from engaging in protected activity.6
We now turn to the question of whether the actions alleged
by Ray constitute adverse employment actions under this
standard, whether Ray has provided sufficient evidence of a
causal link between his protected activities and the adverse
employment actions, and whether he can overcome the USPS'
proffered nondiscriminatory reasons for the actions.
V
Ray claims that, in retaliation for his complaints, his super-
visors eliminated the Employee Involvement program, elimi-
nated the flexible start-time policy, instituted lockdown
procedures, and reduced his workload -- and his pay -- dis-
proportionately to the reductions faced by other employees.7
[9] We conclude that all four qualify as adverse employ-
ment actions. The actions decreased Ray's pay, decreased the
amount of time that he had to complete the same amount of
work, and decreased his ability to influence workplace policy,
and thus were reasonably likely to deter Ray or other employ-
ees from complaining about discrimination in the workplace.
[10] We also find that Ray has established a causal link
between his protected activity and the employment actions by
demonstrating that each action was implemented close on the
heels of his complaints. That an employer's actions were
caused by an employee's engagement in protected activities
may be inferred from "proximity in time between the pro-
tected action and the allegedly retaliatory employment deci-
sion." Yartzoff, 809 F.3d at 1371.
[11] What remains, therefore, is an examination of whether
Ray has produced sufficient evidence supporting his conten-
tion that the nondiscriminatory reasons proffered by the Postal
Service are pretexts for retaliation. We find that he has. The
USPS alleges that Carey and Briggs eliminated flexible start-
ing times because of an increase in the amount of mail and
because of later delivery of the mail to the post office. How-
ever, it is undisputed that Postmaster Carey announced pub-
licly that he was instituting the fixed start time in response to
Ray's complaints. Furthermore, the USPS' assertion is belied
by the fact that even after the policy change several of the
postal carriers continued to arrive at work early with official
sanction.
[12] The Postal Service also asserts that Carey instituted
the lockdown procedures in response to a death threat, not for
retaliatory reasons. Ray contends that this is false, and points
to the fact that his supervisors continued the lockdown even
after the postal inspector had stated definitively that there was
no death threat. Also, supervisory employees continued to say
publicly that Ray had made a threat when they knew that that
was not the case. We are sensitive to the Postal Service's
desire to protect its employees and customers from violence,
and nothing should prevent management from taking precau-
tionary steps. Certainly, locking the doors ensured that unau-
thorized persons could not enter the building, and thus
enhanced security. Nonetheless, a lockdown such as that
implemented by the postal service seems unlikely to prevent
harm from a disgruntled employee working inside the build-
ing, nor would the lockdown stop a violent postal employee
from entering the post office, since an employee would proba-
bly open the door from inside for any co-worker; indeed, if
anything, the lockdown ensured that employees would find it
more difficult to leave. Although the reasons for the lockdown
present a close question, we conclude that Ray has raised a
genuine issue of material fact, and that there is sufficient evi-
dence to survive summary judgment on this claim.
[13] Finally, the USPS claims that the reduction in Ray's
pay was part of across-the-board cuts, and was nondiscrimina-
tory. However, Ray has sufficiently rebutted this assertion by
demonstrating that he suffered the greatest loss in pay.
[14] We therefore hold that, viewing the evidence in the
light most favorable to Ray, the district court erred in granting
summary judgment on the retaliation claim.
VI
[15] We now examine whether Ray's allegation that he was
subjected to a hostile work environment is cognizable under
the anti-retaliation provisions of Title VII. We have not previ-
ously decided whether a hostile work environment may be the
basis for a retaliation claim under Title VII. See Gregory v.
Widnall, 153 F.3d 1071, 1075 (9th Cir. 1998). However, the
Second, Seventh and Tenth Circuits have held that an
employer may be liable for a retaliation-based hostile work
environment. See Richardson v. New York State Dep't of Cor-
rectional Serv., 180 F.3d 426, 446 (2nd Cir. 1999) ("co-
worker harassment, if sufficiently severe, may constitute
adverse employment action so as to satisfy the second prong
of the retaliation prima facie case"); Drake v. Minnesota Min-
ing & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998)
("retaliation can take the form of a hostile work environ-
ment"); Gunnell v. Utah Valley State College , 152 F.3d 1253,
1264 (10th Cir. 1998) ("co-worker hostility or retaliatory
harassment, if sufficiently severe, may constitute`adverse
employment action' for purposes of a retaliation claim").
[16] We agree with our sister circuits. Harassment is obvi-
ously actionable when based on race and gender. Harassment
as retaliation for engaging in protected activity should be no
different -- it is the paradigm of "adverse treatment that is
based on retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activi-
ty." EEOC Compliance Manual P 8008.
[17] Harassment is actionable only if it is "sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment."
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). It
must be both objectively and subjectively offensive. See
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). To
determine whether an environment is sufficiently hostile, we
look to the totality of the circumstances, including the "fre-
quency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Id. (quoting Harris, 510 U.S.
at 23).
Not every insult or harassing comment will constitute a
hostile work environment. In Gregory v. Widnall , we rejected
a claim of a hostile work environment based on "[a] single
drawing of a monkey on a memo circulated by senior NCO's,
accompanied by the verbal explanation that it was intended to
remind officers not to `get the monkey off their back' by pass-
ing their responsibilities to others." 153 F.3d at 1074-75; see
also Strother, 79 F.3d at 869 ("mere ostracism in the work-
place is not enough to show an adverse employment deci-
sion").
[18] Repeated derogatory or humiliating statements, how-
ever, can constitute a hostile work environment. In Hacienda
Hotel, for example, we found that the plaintiffs had demon-
strated sufficiently "severe or pervasive" harassment by dem-
onstrating that one supervisor "repeatedly engaged in
vulgarities, made sexual remarks, and requested sexual
favors" while another supervisor "frequently witnessed,
laughed at, or herself made these types of comments. " 881
F.2d at 1515. And in Draper v. Coeur Rochester, Inc., 147
F.3d 1104, 1109 (9th Cir. 1998), we found that the appellant's
allegations that her supervisor had regularly made sexual
remarks about her throughout her employment, and that he
laughed at her complaints to him, raised a genuine factual
issue regarding a hostile work environment.
Here, after Ray made his complaint about the treatment of
women at the Willits Post Office, he was targeted for verbal
abuse related to those complaints for a period lasting over one
and half years. His supervisors regularly yelled at him during
staff meetings; they called him a "liar," a "troublemaker," and
a "rabble rouser," and told him to "shut up." Additionally,
Ray was subjected to a number of pranks, and was falsely
accused of misconduct.
Not only did his supervisors make it harder for Ray to com-
plete his own tasks, they made Ray an object lesson about the
perils of complaining about sexual harassment in the work-
place. Carey and Briggs made it clear to the other staff mem-
bers that disadvantageous changes in management style were
due to Ray's complaints. Carey linked the change to a fixed
starting time to Ray's letter to Carey's supervisor. He can-
celed the Employee Involvement meetings in response to
Ray's complaints. Carey and Briggs also fostered animus in
other employees whose working conditions were affected.
Other employees began to distance themselves from Ray, and
some stopped talking to him. In November of 1995, the diffi-
culties at work rose to such a level that Ray took stress leave
from his job.
[19] We conclude that Ray has presented evidence that is,
for purposes of summary judgment, sufficient to raise a genu-
ine issue of fact as to whether he was subjected to a hostile
work environment. We therefore hold that the district court
erred in granting summary judgment on the hostile work
environment-based retaliation claim.
VII
For the foregoing reasons, we REVERSE the district court
grant of summary judgment and REMAND for a trial on the
merits of Ray's retaliation claim./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
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FOOTNOTES
1 Employee Involvement meetings are a means for employees to com-
municate with the management regarding workplace issues.
2 It is unclear from the record whether lockdown is a standard post office
procedure. Ray asserts that lockdown procedures had never been instituted
in the Willits Post Office before November 1995.
3 As the statutory language quoted above indicates, filing a complaint
with the EEOC is a protected activity. See 42 U.S.C. S 2000e-3(a). Mak-
ing an informal complaint to a supervisor is also a protected activity. See
Equal Employment Opportunity Commission v. Hacienda Hotel, 881 F.2d
1504, 1514 (9th Cir. 1989).
Furthermore, an employee's complaints about the treatment of others is
considered a protected activity, even if the employee is not a member of
the class that he claims suffered from discrimination, and even if the dis-
crimination he complained about was not legally cognizable. See Moyo v.
Gomez, 40 F.3d 982 (9th Cir. 1994) (prison guard had a claim for retalia-
tion if he was discharged for complaining about the treatment of black
inmates and he was acting on a reasonable belief that a Title VII violation
had occurred, even though the complained-of discrimination was not actu-
ally a Title VII violation).
4 The government cites Steiner v. Showboat Operating Co. and Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 912 (9th Cir. 1997), for the prop-
osition that a lateral transfer is not an adverse employment action.
In Steiner, this court stated in dicta and in a footnote that "the transfer
is just barely -- if at all -- characterizable as an `adverse employment
action: Steiner was not demoted, or put in a worse job, or given any addi-
tional responsibilities. In fact, at first she even claimed to enjoy the day
shift." 25 F.3d at 1465 n.6. The court did not reach the question of whether
the transfer was an adverse employment action because it found that the
action was not retaliatory in nature. Id. at 1465. In Nidds, this court, citing
Steiner, found that the plaintiffs transfer was not an adverse employment
action. 113 F.3d at 919. However, it conducted no analysis to reach this
point, merely asserting that "Although we decline to view Nidds' transfer
to the restoration department as an adverse employment action, his ulti-
mate termination on July 28, 1992 certainly was. " Id.
Neither Steiner nor Nidds establish that a lateral transfer can never be
an adverse employment action. Had they done so, they would have had to
abrogate this court's earlier decisions in Yartzoff and St. John, supra, nei-
ther of which were cited in the Steiner and Nidds decisions. We therefore
reject the government's assertion that a lateral transfer cannot be an
adverse employment action for the purposes of Title VII.
5 The government relies on Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 761 (1998) for the proposition that only ultimate employment
actions such as "hiring, firing, failing to promote, reassignment with sig-
nificantly different responsibilities [and] a decision causing a significant
change in benefits" constitute adverse employment actions. But the discus-
sion in Burlington Industries cited by the government concerns the types
of employment actions which, if taken by a supervisor, would subject the
employer to vicarious liability for harassment. See 524 U.S. at 760-761.
Although the Supreme Court cited to circuit-level Title VII cases that
defined "adverse employment actions," the Court specifically declined to
adopt the holdings of those cases: "Without endorsing the specific results
of those decisions, we think it prudent to import the concept of a tangible
employment action for resolution of the vicarious liability issue we con-
sider here." Id. at 761. Therefore, we reject the contention that Burlington
Industries set forth a standard for adverse employment actions in the anti-
retaliation context.
6 The first part of the EEOC's definition of adverse employment action,
which requires that the action be "based on a retaliatory motive," collapses
into the "causal link" prong of the prima facie test for retaliation.
7 He also alleges that his supervisors created a hostile work environment
that constituted an adverse employment action. We discuss the hostile
work environment claim in the following section.