Francisco Vasquez v. County of Los Angeles, Erroneously Sued as Los Angeles County Board of Supervisors ( 2002 )

FERGUSON, Circuit Judge,

dissenting:

I respectfully dissent. Today, the majority reaches beyond the facts of this casé and imposes a new requirement on Title VII claimants to show the objective adversity of a discriminatory employment action, thereby narrowing the scope of Title VII’s protections. In addition, the majority erroneously holds that Francisco Vasquez (“Vasquez”) was unable to make a prima facie case of retaliation, finding no causal link between the protected activity and the adverse employment action despite the evidence Vasquez offered. Alternatively, they hold that Vasquez was unable to show that his employer’s stated reason for the transfer was pre-textual. Finally, the majority errs in dismissing Vasquez’ hostile work environment claim as a matter of law. In so doing, it improperly downplays the pervasiveness of the hostile environment created by the ongoing harassing conduct of Kelly Berglund (“Berglund”) and wholly fails to address the role that Vasquez’ employer played in sanctioning, rather than correcting, the harassment in violation of Title VII.

I. Disparate Treatment Claim

I disagree with the majority’s conclusion that Vasquez has not proffered sufficient evidence for a reasonable jury to find that he suffered an adverse employment action as to his disparate treatment claim. In reaching this conclusion, the majority imposes an objective adversity requirement for determining whether an employee has been subjected to an adverse employment action in a disparate treatment claim. In doing so, the majority narrows the protections of Title VII.

Instead, under the appropriate test, the adversity of an employment decision is found in the change of terms and conditions of a person’s employment, regardless of whether it is viewed as preferable or unfavorable. Under this test, Vasquez has proffered sufficient evidence to show that the transfer materially affected the terms and conditions of his employment.

A. Material Change in Terms and Conditions of Employment

The majority concludes that Vasquez’ transfer was not an adverse employment action because the detriment is “purely subjective.” However, Vasquez has proffered evidence that his transfer constituted a material alteration of the terms and conditions of his employment. Thus, it was improper to reach the question whether his subjective preference alone could establish that he suffered an adverse employment action.

An adverse employment action is shown if the employer’s decision imposed a “material change in the terms and conditions of a person’s employment.” Chuang v. Univ. of Cal., 225 F.3d 1115, 1126 (9th Cir.2000); accord Kang v. U. Lim Am., Inc., 296 F.3d 810, 818-19 (9th Cir.2002); see also 42 U.S.C. § 2000e 2(a) (prohibiting employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”) (emphasis added). The Supreme Court has “repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination ... and that it covers more than ‘terms’ and ‘conditions’ in the narrow contractual sense.” Nat’l R.R. Passenger Corp. v. Morgan, — U.S. -, 122 S.Ct. 2061, 2074, 153 L.Ed.2d 106 (2002) (alteration in original) (internal quotation marks and citations omitted). Indeed, the statutory phrase “terms, conditions, or privileges of employment,” “evinces a congressional intent to strike at the entire spectrum of disparate treatment ... in employment.’ ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Meritor Sav. Bank, FSB. v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

In contravention of Title VII’s broad coverage of intangible — as well as tangible — harms, the majority erects a new requirement that the employment action must be objectively adverse. The majority reasons that, “[o]therwise, every minor employment action that an employee did not like could become the basis of a discrimination suit.” Maj. Op. at 891. In doing so, the majority ignores that the evil Title VII aims to eradicate is discriminatory treatment in the workplace, not particular employment actions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (“Title VII tolerates no racial discrimination, subtle or otherwise.”); Rodriguez v. Bd. of Educ., 620 F.2d 362, 364 (2d Cir.1980) (“Recognizing that job discrimination may take many forms, Congress cast the prohibitions of Title VII broadly to include subtle distinctions in the terms and conditions of employment....”).

If the majority is concerned about opening the floodgates to meritless claims, our inquiry should focus on whether the action was too minor to be actionable under Title VII. Section 2000e 2(a) prohibits employment practices that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.” (emphasis added). If a material term or condition of employment has not been altered, no Title VTI violation has occurred. However, such is not the case before us.

B. Vasquez’ Transfer to a Field DPO I Position

Applying the material terms and conditions of employment test explained above, Vasquez’ transfer constitutes an adverse employment action. Vasquez alleges that he suffered an adverse employment action when he was transferred from his position as a resident deputy probation officer I (“DPO I”) at the Turquoise cottage of the Dorothy Kirby Center (“DKC”) to a field DPO I position. As a resident DPO I, Vasquez worked as part of a therapeutic team, which had primary responsibility for the rehabilitation of minors residing at the Turquoise cottage. However, as a field DPO I, Vasquez rotates between cottages, spends more of his time on administrative tasks and in contact with parents of minors at DKC, and has only sporadic contact with the minors themselves. Consequentially, Vasquez’ opportunity to form influential relationships with the minors and to have an impact on their lives is greatly reduced.

The job description for a DPO I includes providing “for the care, safety and control of minors in camp.” Thus, the position of a DPO I is designed expressly with the purpose of interacting with and caring for the minors residing at DKC. Accordingly, a transfer that deprives a DPO I of those same opportunities because his new position entails more administrative work, more contact with parents, and. less time with the minors changes the “terms” and “conditions” of that employee’s employment. That the harm is “intangible” does not bring it outside the ambit of Title VII. See Morgan, 122 S.Ct. at 2074. Because that is what occurred in this case, Vasquez has proffered sufficient evidence of an adverse employment action to defeat summary judgment on his Title VII disparate treatment claim.¹ See Chuang, 225 F.3d at 1126 (holding that the relocation of the plaintiffs laboratory space was an adverse employment action because it “constitutes a material change in the terms and conditions of ... employment.”).

The majority acknowledges that “a field DPO has more administrative duties and less interaction with the youth.” Maj. Op. at 890. Nevertheless, it finds that Vasquez’ “preference to work in a cottage was purely subjective, as evidenced by the fact that other DPO I’s had requested transfers from cottage assignments to the field.” Maj. Op. at 891. Although other DPO I’s may prefer the field position because, for example, they would like to spend more time working with parents and alternating among different groups of minors, their subjective preferences are immaterial. Cf. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 338 n. 18, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“Title VII provides for equal opportunity to compete for any job, whether it is thought better or worse than another.”) (citations omitted).

It is ironic that the majority relies on evidence of the subjective preferences of other DPO I’s to deny Vasquez’ claims as a matter of law. Yet, with the standard set forth today, this improper weighing of preferences is inevitable. Indeed, it is a truism that “[o]ne man’s meat is another man’s poison.” Ernest F. Lidge III, The Meaning of Discrimination: Why Courts Have Erred in Requiring Employment Discrimination Plaintiffs to Prove that the Employer’s Action Was Materially Adverse or Ultimate, 47 U. Kan. L. Rev. 333, 356 (1999) (citation omitted). Because each individual has different purposes and preferences with respect to his or her life’s work, the requirement of objective adversity is simply an inadequate indicator for determining whether an employee has an actionable claim of discrimination under Title VII.

Further, even if the proper inquiry is whether a “reasonable” employee would view the transfer as adverse, such an inquiry does not require a consensus among each person in Vasquez’ position that the field position is less desirable than a cottage assignment. Rather, the question is whether Vasquez is reasonable in viewing his transfer as disadvantageous. The majority fails to address this issue. Moreover, its observation that some DPO I’s preferred the field position underscores precisely why this question should be left to the providence of the jury, not judges to determine as a matter of law.

C. Circumstances Surrounding Vasquez’ Transfer

The majority fails to consider the relevant facts and circumstances surrounding Vasquez’ transfer. Even under the objective adversity test set forth by the majority, we should consider the particular circumstances surrounding the transfer to determine whether it constituted an adverse employment action. Vasquez’ transfer was accompanied by a warning letter and statements of DKC Director Karma Leeds (“Leeds”), which indicated that his transfer was necessary because he lacked the judgment to have a position of influence with the minors. The majority relegates to a footnote its conclusion that Leeds statements do not “affeet[ ] our analysis” because they do “not change the fact that the action itself ... was not adverse or disadvantageous when considered objectively.” Maj. Op. at 891 n. 19. It also rejects the assertion that the warning letter was an adverse employment action because it had “no detrimental effect on Vasquez.” Maj. Op. at 892.

Yet, the Eleventh Circuit ease upon which the majority relies stated that the proper inquiry was whether “a reasonable person in his position would have found his transfer to be adverse under all the facts and circumstances.” Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir.1998). Here, the warning letter and Leeds’ statements could lead a reasonable person to believe that the transfer to the field position was not simply a lateral move, but a punitive employment action. See Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir.2000) (recognizing that the existence of an adverse employment action can turn on “indices that might be unique to a particular situation”) (internal quotation marks omitted).

In addition, it is relevant that the employment action taken was the very one that Vasquez had resisted at every step, even to the point of passing up promotions and withdrawing a grievance of racial and sexual discrimination against Berglund,² to avoid the transfer to the field. Under these circumstances, Vasquez could reasonably have understood the transfer to be an adverse action. See Dilenno v. Goodmil Indus., 162 F.3d 235, 236 (3d Cir.1998) (holding that a lateral transfer from store tagger to clothes processing was an adverse employment action when the employer knew that the employee had a phobia of “critters” found in donation bags and that she would be unwilling to do that particular job).

In short, the majority errs in holding as a matter of law that Vasquez has not suffered an adverse employment action. Moreover, it improperly raises the bar today for employees who have suffered discrimination in violation of Title VII. Further, even under its new standard, it is a question for the jury whether, under all the facts and circumstances, a “reasonable person in the same situation would view the action as disadvantageous.” Maj. Op. at 891; see Doe, 145 F.3d at 1453; see also Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir.1997) (affirming jury determination that employment action was adverse). It is inappropriate for the majority to speculate as to whether Vasquez could proffer evidence that he was reasonable in viewing the transfer as an adverse action. Thus, I would reverse summary judgment on this ground.³

II. Retaliation Claim

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

First, Vasquez showed that “he engaged in a protected activity” when he filed the February 1998 grievance regarding Berg-lund’s discriminatory statements.

Second, Vasquez has shown that his employer subjected him to an adverse employment action. In Ray v. Henderson, we adopted a broad test for evaluating alleged adverse employment actions in the context of Title VII retaliation claims. Specifically, we held that, for purposes of Title VII retaliation claims, “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.” Id. at 1242-43. We adopted the Equal Employment Opportunity Commission’s (“EEOC”) test for such actions, reasoning that its standard is “consistent with our prior case law and effectuates the language and purpose of Title VII.” Id. (relying on EEOC Compliance Manual Section 8, “Retaliation,” Par. 8008 (1998)). The EEOC, in turn, adopted this test “based on statutory language and policy considerations.” EEOC Compliance Manual, § 8-11(D)(3) (1998). Retaliation claims are governed by 42 U.S.C. § 2000e-3(a), which provides that it is an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII].”

While the majority assumes “that the transfer met the Ray standard,” I would explicitly find that an adverse employment action in fact exists for purposes of Vasquez’ retaliation claim. Maj. Op. at 890. Vasquez’ transfer from the Turquoise cottage to the field position constitutes an adverse employment action if it was “reasonably likely to deter [him] from engaging in protected activity.” Ray, 217 F.3d at 1242-43. This is a unique case in which the facts show that the transfer actually did deter Vasquez from engaging in protected activity. In fact, Vasquez withdrew his grievance against Berglund after Leeds told him that "the only solution to the conflict between them was to transfer him out of the Turquoise cottage, and that the only way he could avoid the transfer was to withdraw" his grievance against Berglund. He promptly did. Thus, Vasquez raised a triable issue as to the adverse employment action since a reasonable jury could find that the transfer was reasonably likely to deter Vasquez’ protected activity.

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

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

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

III. Hostile Work Environment Claim

Finally, I disagree with the majority’s determination that Vasquez’ hostile work environment claim fails as a matter of law. To survive summary judgment, Vasquez must raise a triable issue as to whether: (1) he was “subjected to verbal or physical conduct” because of his race and sex; (2) “the conduct was unwelcome”; and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” Kang, 296 F.3d at 817-18 (internal quotation marks and citation omitted). At issue here is whether a reasonable jury could find that the harassing “conduct was sufficiently pervasive ‘to alter the conditions of [Vasquez’] employment and create an abusive working environment.’ ” Pavon v. Swift Transp., Inc., 192 F.3d 902, 908 (9th Cir.1999) (quoting Meritor Sav. Bank, FSB., 477 U.S. at 67, 106 S.Ct. 2399).

Vasquez has proffered evidence that Berglund directed epithets at him and engaged in a campaign of harassment against him because of his race and sex.⁴ He has also demonstrated that his employer did nothing to stop the harassment. To the contrary, his employers were aware of the harassment but tolerated it. I will address both of these aspects of the hostile work environment in turn.

A. BergluNd’s Harassing Conduct

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

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

The majority recognizes ■ that Vasquez proffered some evidence of Berglund’s “unfair treatment,” but fails to consider them in the backdrop of ongoing discriminatory behavior alleged by Vasquez. Maj. Op. at 894. Yet, Berglund’s repeated attacks on Vasquez’ competence and character are inextricably part of the pattern of racial and sexual hostility that Berglund exhibited against Vasquez. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir.1998). As we stated in Draper, “[discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstance may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of [his race and gender].” Id. Indeed, Berglund’s allegedly false complaints, such as her claim that Vasquez exhibited “inappropriate and provocative behavior with the individual minors,” were consistent with her stereotyping that he was too domineering with the minors and had a “typical Hispanic macho attitude.” See Allen v. Mich. Dep’t of Corrections, 165 F.3d 405, 411 (6th Cir.1999) (finding support in plaintiffs claim that he was “treated unfairly” because his allegation of being more closely monitored than white employees was consistent with his supervisor’s statement that “niggers can’t be trusted”).

Discounting the ongoing nature of the harassment and finding only “isolated offensive remarks” and “complaints of unfair treatment,” the majority concludes that Vasquez has not proffered sufficient evidence of severe or pervasive harassment to survive summary .judgment. In so doing, the majority compares Vasquez’ allegations to the facts of other cases to conclude that he has not suffered severe or pervasive harassment. However, it is a violation of individual justice to claim that, just because the discrimination in this case was not as severe or pervasive as some of those cases in which we found discrimination, Vasquez has no remedy. The issue is not whether the discrimination was as severe or pervasive as in other cases, but whether Vasquez has presented sufficient facts to have-his case decided by a jury.

Here, Vasquez proffered evidence that he was subjected to “derogatory racial [and sexual] insults,” which were directed at him personally. Allen, 165 F.3d at 410-11 (reversing summary judgment for the employer on a hostile work environment claim when the employee’s superiors told him that “he was lazy like the rest of his people and that is why they are all in prison,” “I’m writing your black ass up, and niggers can’t be trusted.”); cf. Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110-11 (9th Cir.2000) (affirming summary judgment when only one offensive comment was directed at the employee). Berglund also publicly humiliated and demeaned Vasquez, yelling at him in front of the minors and filing' false charges against him. Ray, 217 F.3d at 1245-46 (reversing summary judgment when the employee’s supervisors “regularly yelled at him during staff meetings; ... called him a ‘liar,’ a ‘troublemaker,’ and a ‘rabble rouser,’ and told him to ‘shut up’ ”).

The tenor of the majority opinion is that Vasquez’ claim fails because he simply experienced an interpersonal conflict with Berglund. See Maj.. Op. at 887, 894. It is beyond dispute that a personality conflict is insufficient to trigger the protections of Title VII. However, this is not the case at hand. Vasquez has proffered evidence that his “conflict” with Berglund originated from her discriminatory statements and the animus she harbored against him as a Hispanic male. This evidence, combined with the allegations of her humiliating comments and false accusations, sufficed to raise a triable issue as to whether Vasquez was subjected to an abusive workplace because of his race and his sex.

B. The County’s Complicity in the Harassment

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

We have held that, “[b]y tolerating sexual harassment against its employees, the employer is deemed to have adversely changed the terms of their employment in violation of Title VII.” Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir.2001) (citing Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000)). “If the employer fails to take corrective action after learning of an employee’s sexually[or racially] harassing conduct, or takes inadequate action that emboldens the harasser to continue [her] misconduct, the employer can be deemed to have ‘adopt[ed] the offending conduct and its results, quite as if they had been authorized affirmatively as the employer’s policy.’ ” Id. at 1192 (last alteration in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 789, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). In such cases, it is the “adequacy of the employer’s response, not the co-worker’s underlying behavior” that is alleged to be discriminatory. Id. at 1191 (identifying relevant conduct for determining whether the plaintiffs claim was time barred).

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

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

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

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

IV. ConClusion

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

1 . Our decisions in the retaliation context further demonstrate that Vasquez' transfer constitutes an adverse employment action. See Ray, 217 F.3d at 1241 (finding that a lateral transfer constitutes an adverse employment action); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) ("Transfers of job duties and undeserved performance ratings, if proven, would constitute ‘adverse employment decisions.’ ”); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir.2000) (distinguishing Yartzoff because plaintiff's negative evaluation was not accompanied by "different or more burdensome work responsibilities”).

2 . Berglund was a more senior employee who served as a DPO II at the Turquoise cottage. As a DPO II, she had some supervisory responsibilities over the DPO I’s at the cottage. In addition, she apparently served as the acting director of DKC from time to time.

3 . Vasquez also established the other elements of his prima facie case. Under McDonnell Douglas, he must show: (1) he is a member of a protected class, (2) he was qualified, (3) an adverse employment action, and (4) similarly-situated non-class members were treated more favorably. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659-660 (9th Cir.2002) (amended opinion). The burden then shifts to the County "to articulate a legitimate, non-discriminatory reason for [the adverse action].” Id. at 659-660 (citation omitted). If the County does, Vasquez must proffer evidence of pretext. Id.

First, Vasquez is protected as a Hispanic male. Second, his qualifications are not in dispute. Third, as shown above, Vasquez raised a triable issue as to the adverse employment action. Fourth, he proffered sufficient evidence that he was treated differently than a similarly-situated employee because Mario Ng, also a DPO I, was not transferred for participating in the March 27, 1999 football game.

The County asserts as its non-discriminato-xy reason for the transfer Vasquez' alleged disobedience of a direct order from Berglund, his supervisor at the time. Vasquez proffers both direct and circumstantial evidence of pretext.

Berglund’s explicit epithets constitute direct evidence of discrimination. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998). Although Leeds made the ultimate transfer decision, Berglund's report "set in motion the chain of events that led to ... the adverse employment action.” Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir.1999). Whether Berglund was sufficiently involved in the decision to impute her discriminatory animus to the County is a jury question. Godwin, 150 F.3d at 1221.

Vasquez proffered, as circumstantial evidence of pretext, his testimony that Berg-lund did not forbid him from playing football. Aragon, 292 F.3d at 659-60. In addition, Leeds' threat to transfer him when he filed a grievance regarding Berg-lund’s statements tends to show a discriminatory motive. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817 (holding that evidence of pretext may include the employer’s "reaction, if any, to [the plaintiff’s] legitimate civil rights activities”). Thus, Vasquez raised a triable issue as to his disparate treatment claim.

4 . The majority states that Vasquez’ claim is one for “racially based harassment.” Maj. Op. at 892. However, Vasquez asserts that he was harassed because of the confluence of his race and sex, both of which are protected characteristics under Title VII. 42 U.S.C. § 2000e-2(a)(l) (forbidding employment discrimination on the basis of race or sex); cf. Lam v. Univ. of Haw., 40 F.3d 1551, 1561-62 (9th Cir.1994) (recognizing combined race and sex discrimination claims under Title VII).