Cite as 217 F.3d 1234 (9th Cir. 2000)
Erik A. Rapoport, San Francisco, California, for the plaintiff-appellant.
Debora G. Luther, Assistant United States Attorney, Sacramento, California,
for the defendant-appellee.
Appeal from the United States District Court for the Eastern District
of California; Garland E. Burrell, District Judge, Presiding. D.C.
Before: FLETCHER, ALARCON, and HAWKINS, Circuit Judges.
FLETCHER, Circuit Judge:
In this case we are called upon to determine whether William J. Ray
suffered adverse employment actions after complaining 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 protected activity. Under this standard, we conclude
that Ray suffered cognizable adverse employment actions when his
employer, in retaliation for Ray's complaints concerning management's
treatment of women employees, eliminated employee meetings, eliminated
its flexible starting time policy, instituted a "lockdown" of
the workplace, and cut Ray's salary. We also hold that Ray has a
cognizable claim for retaliation based on his supervisors' creation
of a hostile work environment.
Ray has been a rural postal carrier in Willits, California for
over 28 years. In addition to Ray, there are four other
rural carriers. Ray's immediate supervisor at the Willits Post
is Dale Briggs, and the Postmaster is Don Carey.
Prior to the events at issue in this case, the rural carriers
had a flexible start-time. Ray and the other carriers
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
In 1994, Ray and his co-workers became concerned
about gender bias and harassment at the
post office. Several
sought medical advice and transfers because
of harassment by Briggs. The subject of the harassment of women
first came up at a March
30, 1994 Employee Involvement meeting.'
At that meeting, a female janitorial employee raised her hand and
asked to be recognized 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
Ray next made a complaint about the treatment of women at
an April 7, 1994 Rural Carriers Employee Involvement meeting.
angrily denied the charges. After these complaints failed
to spur any change, Ray and two of his coworkers wrote a
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
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
Carey did not effectuate that threat until February
1995. However, in the meantime Briggs and
Carey publicly berated Ray on a regular basis.
example, Briggs yelled at Ray at a staff
meeting on November 10, 1994, after Ray had made
for improving efficiency at the office.
On December 24, 1994, Postmaster Carey called Ray
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
under which workers set their own starting
and finishing 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 physically threatening
gestures toward him. [Note: Wrong - I
put my hands in my back pockets and smiled.]
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. program
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 February 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 minute. The 7:00 A.M. start time also forced
Ray to work later in the afternoon so that he
could finish some of the administrative 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 therefore requested
to come to work half an hour early-at 6:30 A.M.
While Briggs granted the request, he repeatedly
threatened to retract the early start time.
Ray continued to be the target of Briggs and
Carey's hostility 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
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.
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,
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:
is because of [management's] conviction they are doing the
right thing that makes
the situation so troubling and actionable
at law. The Joint
Statement on Violence and Behavior
In the Workplace clearly outlaws their practices
continuation of their pattern will be dire. Four people have
said to me the SP0 [Supervisor of Postal Operations] should be
killed. They were speaking out of frustration
and pain. But this should show that the situation is not isolated
to my complaint.
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.'
During lockdown, the doors to the loading docks were kept locked
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.
procedure turned a process that had taken seconds 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
not to come back to the office, and called in a Postal Inspector
to determine whether the EEO letter constituted 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
staff that Ray had made a death threat. The lockdown at the Willits
Post Office continued until February 1996, when it was discontinued
Also in response to the supposed death threat, on December
1, 1995 Postmaster Carey canceled Ray's 6:30 start time,
to arrive at work at 7:00 A.M. Carey stated that he did not
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 salary. 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 E,E0
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 protected activity,
discrimination, and failure to make accommodations 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.
have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
We review the district court's decision to grant summary judgment
de novo. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert.
denied - U.S. , 120 S.Ct. 375, 145 L.Ed.2d 293 (1999). In reviewing
an order denying or granting summary judgment, we. must determine,
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.
Title VII prohibits employers from discriminating against an
because that employee "has opposed any practice
made an unlawful employment practice by this subchapter, 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. § 2000e-3(a). A postal
employee may bring suit under § 2000e-3(a) pursuant to 42
U.S.C. § 2000e-16. See Ayon v. Sampson, 547 F.2d 446, 450
[2-4] To make out a prima facie case of retaliation, an employee
must show that (1) he engaged in a protected activity; (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 Operating 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 burden of demonstrating that the reason was
merely a pretext for a discriminatory motive. Ibid
[5, 6] 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 cognizable
adverse employment actions. Ray
asserts that he suffered from changes in workplace policy and
pay, as well as from a hostile work environment. We first
examine the definition of an adverse employment action. We
then discuss whether the changes in workplace policy
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 environment
in retaliation for engaging in protected activity
is cognizable under the anti-retaliation provisions of Title
circuits are currently split as to what constitutes an adverse
employment action. Although we have yet to articulate
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
is held by the Fifth and Eighth Circuits. Below, we
set forth the Ninth Circuit's position within this split,
and explain the case law in the other circuits. Then, we examine
what guidelines we should follow in analyzing whether an action
adverse employment action.
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 constitute
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 employment action.4
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 decision not to hire the plaintiff: "That
this unlawful personnel action turned out to be inconsequential
goes to the issue of damages, not liability." Id.
'Strother', we examined the case of an employee who, after
complaining of discrimination, was excluded from meetings,
and positions that would have made her eligible 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 employment 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 considered
adverse employment actions. See Wyatt v. City of Boston, 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 employees"); Knox v. Indiana, 93 F.3d 1327,
1334 (7th Cir.1996) (employer can be liable for retaliation
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 employment 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 former employer can be adverse employment action);
Wideman v. Wal-MartStores, 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 notification, 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 position within
the circuit split. They have held that an adverse action is something
that materially affects the terms and conditions 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 compensation, 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 decisions); Legerderber v. Stangler, 122
F.3d 1142, 1144 (8th
Cir.1997) (transfer involving only minor changes in working conditions
and no reduction in pay or benefits is not an adverse employment
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 effect on a prospective employer's hiring decisions in Hashimoto,
and the imposition of a more burdensome 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 schedule)
do "materially affect the terms and conditions of employment," others
(such as an unfavorable reference not affecting an employee's
job prospects) do not.
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 charging party or
others from engaging in protected activity." EEOC Compliance Manual
Section 8, "Retaliation," T8008 (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, 106 S.Ct. 2399, 91 L.Ed.2d 499
(1986) (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also
Gutierrez v. Municipal
Court, 838 F.2d 1031, 1049 (9th Cir.1988). We find
the EEOC test to be consistent with our prior holdings,
and with the holdings
in the First, Seventh, Tenth, Eleventh and D.C. Circuits.
 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 protected
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.
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. According to 42 U.S.C. § 2000e-3(a),
it is unlawful "for an employer to discriminate" against
an employee in retaliation for engaging in protected activity.
This provision does not limit what type of discrimination is
covered, nor does it prescribe a minimum 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 com plaint.").
We agree with the D.C. Circuit, which noted in Passer
statute itself proscribes "discriminat[ion]" against
those who invoke the Act's protections;
the statute does not limit its reach only to acts of retaliation
that take the form
of cognizable employment actions such
as discharge, transfer or demotion "[T]o establish a prima
facie case under section 704(a) [42 U.S.C. § 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 plaintiffs 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,
(per curiam), supplemented on other grounds on reh'g, 852
F.2d 619 (D.C.Cir.1988)).
the EEOC standard is consistent with our prior case law and
effectuates the language and
purpose of Title VII,
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
and whether he can overcome the USPS' proffered nondiscriminatory
reasons for the actions.
Ray claims that, in retaliation for his complaints, his
supervisors eliminated the Employee Involvement program,
the flexible start-time policy, instituted lockdown
procedures, and reduced his workload and
his pay — disproportionately to the reductions faced
We conclude that all four qualify as adverse employment
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 employees from complaining about discrimination
in the workplace.
 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 protected action and the allegedly retaliatory
employment decision." Yartzoff, 809 F.2d at 1371.
 What remains, therefore, is an examination of whether
Ray has produced sufficient evidence supporting his contention
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 starting times because of an increase in the
amount of mail and because of later delivery of the mail
to the post office. However, it is undisputed that Postmaster
Carey announced publicly 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.
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
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 precautionary steps. Certainly,
locking the doors ensured that unauthorized 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 building, nor would the lockdown stop
employee from entering the post office, since an
employee would probably open the door from inside for any coworker;
indeed, if anything, the lockdown ensured that
would find it more difficult to leave. Although
the reasons for the lockdown present a close question,
that Ray has raised a genuine issue of material
fact, and that there is sufficient evidence to survive summary
judgment on this claim.
Finally, the USPS claims that the reduction in Ray's
pay was part of across-the-board cuts, and was
nondiscriminatory. However, Ray has sufficiently
rebutted this assertion
by demonstrating that he suffered the greatest
loss in pay.
We therefore hold that, viewing the evidence in the
light most favorable to Ray, the district court erred
summary judgment on the retaliation. claim.
We now examine whether Ray's allegation that
he was subjected to a hostile work environment is cognizable
the anti-retaliation provisions of Title
VII. We have not previously 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
hostile work environment. See Richardson v. New York State
Dept of Correctional Serv., 180 F.3d 426, 446 (2nd Cir.1999)
harassment, if sufficiently severe, may constitute adverse
employment action so as to satisfy the second prong of the
facie case"); Drake v. Minnesota Mining & Mfg. Co.,
134 F.3d 878, 886 (7th Cir.1998) ("retaliation can take
the form of a hostile work environment"); Gunnell v.
Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998)
hostility or retaliatory harassment, if sufficiently severe,
may constitute `adverse employment action' for purposes of
a retaliation claim").
We agree with our sister circuits. Harassment is obviously
actionable when based on race and gender. Harassment as retaliation
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 activity." EEOC Compliance
Manual ¶ 8008.
[15,16] 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, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993). It must be both objectively and subjectively offensive.
See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998). To determine whether an environment
is sufficiently hostile, we look to the totality of the circumstances,
including the "frequency 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, 114 S.Ct. 367).
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 passing their responsibilities
to others." 153 F.3d at 1074-75; see also Strother, 79 F.3d
at 869 ("mere ostracism in the workplace is not enough to
show an adverse employment decision").
 Repeated derogatory or humiliating statements, however,
can constitute a hostile work environment. In Hacienda Hotel,
for example, we found that the plaintiffs had demonstrated sufficiently "severe
or pervasive" harassment by demonstrating 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
 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
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 complete
his own tasks, they made Ray an object lesson about the perils
of complaining about sexual harassment in the workplace. Carey
and Briggs made it clear to the other staff members
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 canceled 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 difficulties at work rose to such a level that Ray took stress
leave from his job.
We conclude that Ray has presented evidence that is, for purposes
of summary judgment, sufficient to raise a genuine 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.
For the foregoing reasons, we REVERSE the district court
grant of summary judgment and REMAND for a trial on the
Ray's retaliation claim.
9th Circuit panel did not pursue the most explosive aspect
of this controversy. The USPS accused me of a verbal
death threat upon their personnel, which was quickly adjudged
to be false, but which they continued to publicize. This
action was in violation of California statutory law, which
prohibits false charges of threatening homicide. Thus
as an additional aspect of the hostile work environment, my
superiors had unlawfully slandered
my reputation. In my view, had the USPS appealed the
judgment from the U.S. District Court of Appeals, Sacramento,
which was bound by the 9th Circuit precedent to rule in my
would have faced a national scandal in the U.S. Supreme Court.
You can't get more hostile than falsely accusing an employee
of threatening to kill you. Consequently, the USPS settled
on my terms, leaving the precedent in place. It has since
been referenced hundreds of times in defense of otherwise legally
helpless workers who had the courage to oppose punitive corporate
and bureaucratic power.
Involvement [E.I.] meetings are a means for employees to communicate
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.
the statutory language quoted above indicates, filing a complaint
with the EEOC
is a protected activity. See 42 U.S.C. § 2000e3(a).
Making 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 discrimination he complained
about was not legally cognizable. See Moyo v. Gomez, 40 F.3d
982 (9th Cir.1994) (prison guard had a claim for retaliation
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 actually a Title VII violation).
government cites Steiner v. Showboat Operating Co., 25 F.3d 1459
and Nidds v.Schindler Elevator Corp., 113 F.3d 912, 912 (9th
Cir.1996), for the proposition
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 additional
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
it found that the action was not retaliatory in nature. Id. at 1465. In Nidds,
this court, citing
that the plaintiff's 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 ultimate 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, neither 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.
government relies on Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 761, 118 S.Ct. 2257,
141 L.Ed.2d 633
(1998) for the proposition that only ultimate employment actions
such as "hiring, firing, failing to promote, reassignment with
significantly different responsibilities [and] a decision causing
a significant change in benefits" constitute adverse employment
actions. But the discussion 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, 118 S.Ct.
2257. 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
we think it prudent to import the concept of a tangible employment action for
resolution of the vicarious liability issue we consider here." Id. at 761,
118 S.Ct. 2257. Therefore,
we reject the contention that Burlington Industries set forth a standard for
actions in the anti-retaliation context.
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
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.