Francisco Vasquez v. County of Los Angeles, Erroneously Sued as Los Angeles County Board of Supervisors , 349 F.3d 634 ( 2004 )

Opinion by Judge T.G. NELSON. Dissent by Judge FERGUSON.

T.G. NELSON, Circuit Judge.

Francisco Vasquez, a deputy probation officer at a Los Angeles County youth detention center, brought this action against the County, alleging that the County violated Title VII of the Civil Rights Act by discriminating against him on the basis of his national origin, subjecting him to a hostile work environment, and retaliating against him for filing discrimination charges. The district court granted the County’s summary judgment motion, and Vasquez appeals. We affirm the district court.

I

Francisco Vasquez is a Deputy Probation Officer, Level I (DPO I), who works for the County of Los Angeles at its Dorothy Kirby Center (DKC). DKC is a detention facility for youth who have committed less serious crimes. The youth live at DKC in various cottages, and the DPOs are assigned to a particular cottage or to the field, where they rotate between cottages. Vasquez was assigned to “turquoise cottage” during the events that led to this lawsuit.

Kelly Berglund was employed at DKC as a DPO II, and was also assigned to turquoise cottage. A DPO II has more supervisory responsibilities and takes on more complex cases than a DPO I. Berg-lund and Vasquez experienced conflicts while working together. Vasquez claims that Berglund yelled at him and made negative comments about him in front of the youth. During one altercation in February 1998, Berglund made a comment to Vasquez that Vasquez was too domineering with the minors and had a “typical Hispanic macho attitude.” Later that month, Vasquez filed a grievance against Berglund for that remark. The director of the facility, Karma Leeds, offered to transfer Vasquez out of turquoise cottage to alleviate the conflict, but Vasquez did not want to leave turquoise cottage so he withdrew his grievance.

The following month, Berglund sent a memo to Leeds describing incidents in which she believed Vasquez had behaved inappropriately. This memo was in response to Leeds’ request for information regarding the conduct and behavior of Vasquez. Then, in the fall of 1998, Berg-lund commented to Vasquez that he should take a job in the field because “Hispanics do good in the field.”

The culmination of the conflict occurred ■ on March 27, 1999. Berglund was acting director of DKC on that day because neither the director nor the assistant director were present. Vasquez called Berglund to request permission for his cottage to play football against garnet cottage. Vasquez contends that Berglund granted his request, providing the game was touch football. Berglund claims that there was a policy at DKC that no football of any kind was to be played, and she therefore refused his request to play football but said he could play soccer.

Approximately one half hour after the telephone call, Berglund and two DPO Is walked out to the recreation area. As they approached the area, Berglund noticed two youths sitting on the curb, one of whom stood up, threw a soccer ball toward the field, and yelled something in the direction of the field. When Berglund and the two DPOs arrived at the field, they saw the youth from turquoise cottage and garnet cottage kicking a soccer ball. Some had flags hanging from their waistbands. All play stopped when Berglund arrived at the field. Berglund asked several of the youth if they had been playing football, but they denied it. Vasquez then took the youth back to turquoise cottage. Vasquez later admitted that the youth were playing football, and that he saw the game end abruptly and two players throw down their flags as Berglund approached the field.

Berglund next called Mario Ng, the DPO I for garnet cottage. Ng admitted to playing football and stated that he was not aware that Berglund had spoken to Vasquez before the game. Berglund proceeded to turquoise cottage and again questioned the youth about the game. One youth denied playing football, but Vasquez told Berglund that the youth had been playing football. After Berglund left, Vasquez told the youth that they should write letters to Berglund, apologizing for lying to her and being disrespectful, which they subsequently did.

On the following Monday, Berglund sent Leeds a memo detailing her version of the events of March 27. The memo stated that Vasquez disobeyed Berglund’s order to not play football. Leeds also read the letters from the youth in turquoise cottage admitting that they had lied to Berglund and that one had acted as a lookout during the football game. Leeds then talked to Vasquez’s supervisor, Star French, and Mario Ng. Finally, Leeds spoke with Vasquez, who denied doing anything wrong. However, Leeds received the impression that Vasquez knew he should not have been playing football. On April 2, 1999, Leeds removed Vasquez from turquoise cottage and placed him in a field position. On April 5, 1999, Star French issued a letter of warning to Vasquez for failing to follow instructions from an acting residential supervisor. Vasquez chose not to respond to the letter.

On June 23,1999, Vasquez filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging harassment and disparate treatment during the period of March 27, 1999, to April 5, 1999. Vasquez then went on disability leave until August 1999 because of stress and depression. Upon Vasquez’s return, Leeds asked him if he planned to pursue his claim and threatened to transfer him out of DKC if he did pursue it. In addition, Vasquez was not assigned any overtime work and continued to be denied bilingual pay'

After the EEOC issued a right-to-sue letter on July 19, 1999, Vasquez filed a complaint against the County of Los Ange-les under Title VII. He alleged causes of action for discrimination because of harassment and disparate treatment, and retaliation. The county moved for summary judgment, and the district court granted the motion. The court held that Vasquez could not establish a prima facie case for the disparate treatment claim because there was no adverse employment action and Vasquez failed to show that similarly situated employees were treated differently. It also held that the alleged harassment was not severe or pervasive enough to create a hostile work environment. Finally, the court dismissed the retaliation claim because Vasquez did not exhaust his administrative remedies and, in the alternative, did not establish a prima facie case because there was no adverse employment action related to the protected activity. Vasquez appeals each of those decisions. We have jurisdiction to hear this appeal pursuant to 42 U.S.C. § 2000e-5 and 28 U.S.C. § 1291.

II

We review a district court’s grant of summary judgment de novo.¹ We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether any genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law.²

Ill

In order to prevail in a Title VII case, the plaintiff must establish a prima facie ease of discrimination. If the plaintiff succeeds in doing so, then the burden shifts to the defendant to articulate a legitimate, nondiseriminatory reason for its allegedly discriminatory conduct. If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer’s reason is a pretext for discrimination.³

For a prima facie case, Vasquez must offer evidence that “give[s] rise to an inference of unlawful discrimination,” ⁴ either through the framework set forth in McDonnell Douglas Corp. v. Green⁵ or with direct or circumstantial evidence of discriminatory intent.⁶

Vasquez has offered no direct evidence of discriminatory intent. Direct evidence is “evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.”⁷ The only evidence Vasquez offers are the remarks of Berglund. However, Berglund was not the decisionmaker, and Vasquez has offered no evidence of discriminatory remarks made by Leeds. Therefore, Vasquez must show a nexus between Berg-lund’s discriminatory remarks and Leeds’ subsequent employment decisions.⁸ Vasquez has not shown the necessary nexus because Leeds conducted her own thorough investigation, and as mentioned above, Vasquez presents no evidence that discriminatory animus motivated Leeds’ decision.⁹ To the extent that Berglund’s remarks and Leeds’ knowledge of prior conflicts between Vasquez and Berglund constitute circumstantial evidence of discriminatory intent, this evidence is insufficient to make out a prima facie case. Therefore, Vasquez must proceed under the McDonnell Douglas framework.

As discussed above, if a plaintiff can satisfy the fourprong McDonnell Douglas test, we presume unlawful discrimination. The burden then shifts to the employer to provide a legitimate, non-discriminatory reason for the employment action.¹⁰ Vasquez’s claim fails because, even assuming (which we do not decide) that he can make out a prima facie case under the McDonnell Douglas framework, he cannot establish that the County’s articulated non-discriminatory reason for his transfer is pretextual.¹¹

Leeds proffered a legitimate, nondiscriminatory reason for her decision to transfer Vasquez to a field position and to issue the warning letter: Vasquez disobeyed a direct order from his supervisor. Therefore, Vasquez must prove that Leeds’ reason is pretextual.¹² A plaintiff can show pretext directly, by showing that discrimination more likely motivated the employer, or indirectly, by showing that the employer’s explanation is unworthy of credence.¹³

A showing that the County treated similarly situated employees outside Vasquez’s protected class more favorably would be probative of pretext.¹⁴ Vasquez claims that both Ng and Berglund were similarly situated and were treated better than he. However, individuals are similarly situated when they have similar jobs and display similar conduct.¹⁵ Neither Berglund nor Ng were similarly situated to Vasquez. Berglund was not involved in the same type of offense as Vasquez. Further, her position was a supervisory one, with much greater responsibility. Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees.¹⁶ Although Vasquez and Ng held the same level position, they were also not similarly situated. Ng did not engage in problematic conduct of comparable seriousness to that of Vasquez.¹⁷ Ng did not know that Vasquez had called Berglund before the football game and believed that Vasquez was in charge of recreation for the day. Therefore, Ng did not know that he was disobeying a direct order from Berglund by participating in the game.

Further, as discussed above, Vasquez has not offered any direct evidence that Leeds was motivated by discriminatory intent.¹⁸ Nor has Vasquez shown that Leeds’ explanation is not believable for some other reason. To show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer’s motives.¹⁹ Therefore, even assuming that Vasquez could establish his prima facie case, his claim would fail because he could not show that Leeds’ reason was a pretext for discriminatory intent. Accordingly, the district court properly granted summary judgment on Vasquez’s disparate treatment claim.

IV

Vasquez next asserts that Berglund’s conduct toward him was racially based harassment that created a hostile work environment.²⁰ Under Title VII, it is unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of his race, color, religion, sex, or national origin.²¹ To prevail on a hostile workplace claim premised on either race or sex, a plaintiff must show: (1) that he was subjected to verbal or physical conduct of a racial or sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and create an abusive work environment.²² Because the elements to prove a hostile work environment are the same for both racial harassment and sexual harassment, cases analyzing both types of harassment are relevant to our analysis.

To determine whether conduct was sufficiently severe or pervasive to violate Title VII, we look at “all 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.”²³ In addition, “[t]he working environment must both subjectively and objectively be perceived as abusive.”²⁴ Berglund’s conduct was not severe or pervasive enough to constitute a hostile work environment and thus did not violate Title VII.

Vasquez claims that Berglund continually harassed him but provides specific factual allegations regarding only a few incidents. The primary basis of Vasquez’s claim arises from statements by Berglund that Vasquez had “a typical Hispanic macho attitude” and that he should consider transferring to the field because “Hispanics do good in the field.” These statements were made more than six months apart. Concerning Vasquez’s allegation that Berglund yelled at him in front of the youth, Vasquez provides evidence of only two instances when this occurred. One instance was when Berglund yelled at Vasquez for letting the youth “sniff paint” while Vasquez was painting a doorway in the cottage. The other instance occurred when Berglund called Vasquez a juvenile delinquent for letting the youth play football. Vasquez’s allegation that Berglund made negative remarks about him in front of the youth is based on reports from the youth. Vasquez did not have personal knowledge of those remarks. Finally, regarding the allegation that Berglund made continual, false complaints about Vasquez to Leeds, Vasquez offers two memos written by Berglund, one in response to Leeds’ request for information about Vasquez’s performance, and one written a year later concerning the events of March 27. All of these incidents occurred over the course of more than one year.

When compared to other hostile work environment cases, the events in this case are not severe or pervasive enough to violate Title VII. In Sanchez v. City of Santa Ana,²⁵ the court dismissed plaintiffs hostile work environment claim. We held that no reasonable jury could have found a hostile work environment despite allegations that the employer posted a racially offensive cartoon, made racially offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs because they were Latino.²⁶ The allegations in Sanchez were at least as severe as those in this case, yet the court held as a matter of law that there was no hostile work environment.

Sexual harassment cases also provide examples of the type of conduct necessary to produce an abusive work environment. We held in Draper v. Coeur Rochester, Inc.,²⁷ that defendant created a hostile work environment where the plaintiffs supervisor made repeated sexual remarks about the plaintiff over a two-year period, calling her “gorgeous” and “beautiful” rather than her name, telling her about his sexual fantasies and his desire to have sex with her, commenting on her “ass,” and asking over a loudspeaker if she needed help changing clothes.²⁸ Likewise, we came to the same conclusion in Nichols v. Azteca Restaurant Enterprises, Inc.²⁹ There, a male employee of the restaurant was subjected to a relentless campaign of insults, name-calling, vulgarities, and taunts of “faggot” and “fucking female whore” by male co-workers and supervisors at least once a week and often several times a day.³⁰

In contrast, we determined in Kortan v. California Youth Authority,³¹ that there was no hostile work environment when a supervisor called female employees “castrating bitches,” “Madonnas,” or “Regina” on several occasions in plaintiffs presence; the supervisor called the plaintiff “Medea”; the plaintiff complained about other difficulties with that supervisor; and the plaintiff received letters at home from the supervisor.³² The court held that, while the supervisor’s language was offensive, his conduct was not severe or pervasive enough to unreasonably interfere with the plaintiffs employment.³³

When considered in light of these previous cases, the conduct complained about by Vasquez did not create an abusive work environment. The allegedly harassing incidents, which occurred over the course of more than one year and only two of which contained racially related epithets, did not create a hostile work environment for Vasquez. The conduct was less frequent, less severe, and less humiliating than the conduct at issue in Draper or Azteca but, rather, was more in line with that in Kor-tan. Two isolated offensive remarks, combined with Vasquez’s other complaints about unfair treatment, are similar to the incidents in Kortan where the supervisor made several offensive sexual remarks and the plaintiff had other difficulties with that supervisor. Like in Kortan, we conclude that Berglund’s conduct was not severe or pervasive enough to create a hostile work environment.

V

Vasquez’s last claim is that Leeds, Berglund, and other county employees retaliated against him for filing a grievance against Berglund and for filing a discrimination charge.³⁴ To establish subject matter jurisdiction over his Title VII retaliation claim, Vasquez must have exhausted his administrative remedies by filing a timely charge with the EEOC.³⁵ This affords the agency an opportunity to investigate the charge.³⁶ Subject matter jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC’s actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge.³⁷

Because Vasquez’s EEOC charge only claimed harassment and different treatment, we must decide whether his current retaliation claim is reasonably related to the EEOC charge. In doing so, we may consider “such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred.” ³⁸ We conclude that Vasquez did not exhaust his administrative remedies regarding retaliation for filing the discrimination charge but that he did exhaust as to retaliation for filing the grievance.

Vasquez’s EEOC complaint alleged that he was subject to harassment and different treatment on March 27, 1999, because Berglund accused him of lying. The charge then states that Vasquez was transferred out of turquoise cottage on April 2, 1999, and given a letter of warning on April 5, 1999. The charge also states that Berglund did not give Vasquez a reason for subjecting him to harassment and different treatment, but that Leeds told him he was transferred for failing to follow instructions and violating an established practice. The only names mentioned in the complaint were Berglund and Leeds. Vasquez checked the box on the form for discrimination based on national origin but did not check the box for retaliation.

The first part of Vasquez’s retaliation claim concerns retaliation against him for filing the discrimination charge with the EEOC. Vasquez filed the charge on June 23, 1999. Vasquez asserts that after he returned to work in August 1999, Leeds threatened that she could have him transferred out of DEC if he pursued his discrimination claim. Vasquez also asserts retaliation for filing his EEOC charge because he was not assigned overtime duty and he did not receive bilingual pay. None of these acts fall under an investigation that the EEOC would have conducted based on the charge.

The only person that Vasquez accused of discriminatory acts in his EEOC charge was Berglund. However, Berglund was not responsible for assigning overtime work or for awarding bilingual pay. Based on Vasquez’s charge, the EEOC would have no reason to investigate the employees who assigned overtime work or the employees who decided whether to award bilingual pay. In addition, the denials of overtime work and bilingual pay are completely unrelated to the facts that form the basis of the discrimination in the charge. Finally, the denial of overtime work and bilingual pay did not occur within the time frame of the events alleged in the EEOC charge. A reasonable investigation by the EEOC would not have encompassed these allegedly retaliatory acts.

As for Leeds’ threat to transfer Vasquez, that event occurred several months after the alleged harassment and even after the EEOC had issued its right-to-sue letter. The EEOC could not have investigated that incident because it had not yet happened at the time the EEOC was conducting its investigation. And while Leeds’ threat of transfer is similar to her transfer of Vasquez out of turquoise cottage, Leeds was not the individual accused of harassment. The EEOC would have reasonably investigated conduct of Berg-lund but not conduct of Leeds. Because Vasquez did not present the legal theory of unlawful retaliation, and the operative facts regarding this part of his claim were not related to the facts in the EEOC charge, he did not exhaust his administrative remedies.³⁹ Thus, we have no jurisdiction to hear the claim that the County retaliated against Vasquez for filing an EEOC charge.

The second part of Vasquez’s retaliation claim is based on acts that occurred after he filed the February 1998 grievance against Berglund for discrimination. Vasquez claims that his transfer out of turquoise cottage and Berglund’s harassment were in retaliation for the grievance he filed. Again we must determine whether Vasquez exhausted his administrative remedies as to this part of his claim. While the EEOC charge does not contain the relevant legal theory of retaliation, it does contain the relevant factual allegations. The EEOC charge alleges that Berglund harassed Vasquez and that he was transferred out of turquoise cottage, the same acts specified as retaliation in his claim. Because an investigation of the EEOC charge would likely have revealed Vasquez’s earlier grievance against Berglund, a claim of retaliation could have “grow[n] out of the charge.”⁴⁰ We conclude that Vasquez did exhaust his administrative remedies as to this part of his claim. Thus, we have jurisdiction to consider his retaliation claim regarding the grievance.

To make out a prima facie case of retaliation, Vasquez must establish that he undertook a protected activity under Title VII, his employer subjected him to an adverse employment action, and there is a causal link between those two events.⁴¹ This analysis requires us to examine separately whether the “adverse employment action” is considered through an objective or subjective lens. We addressed this question, at least in passing, in Ray v. Henderson.⁴² We adopted the EEOC standard from its compliance manual,⁴³ and held that “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.”⁴⁴ In context, this is, at least in part, a subjective standard because the EEOC manual speaks of “ ‘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.’ ”⁴⁵

Including behavior of the charging party in the standard removes it from the hypothetical “reasonable employee” approach and makes it more subjective. Of course, it is not entirely subjective as the conduct must be “reasonably likely” to deter the protected activity, even by the charging party.

For purposes of our analysis, we will assume that the transfer met the Ray standard. However, this does not save Vasquez’s retaliation claim because he has failed to show a causal link.⁴⁶ The protected activity occurred thirteen months prior to the alleged adverse action,⁴⁷ and Vasquez has not provided evidence of surrounding circumstances that show a retaliatory motive.⁴⁸ Further, Vasquez has not shown that the county’s proffered reason — that he disobeyed a direct order— was pretextual.⁴⁹ Therefore, we affirm the dismissal of this claim as well.

VI

Vasquez’s disparate treatment claim fails because he failed to show that Leeds’ reason for transferring him was pretextual. Berglund did not subject Vasquez to a hostile work environment, and therefore, Vasquez’s claim of harassment fails as well. Finally, we must dismiss Vasquez’s retaliation claim because he did not exhaust his administrative remedies as to part of his claim, and assuming that the transfer is an adverse employment action, he has not shown either a causal link or that the employer’s proffered reason was pretextual. For these reasons, we affirm the district court’s dismissal of Vasquez’s claims.

AFFIRMED.

1 . Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

2 . Id.

3 . Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997).

4 . Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

5 . 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, unlawful discrimination is presumed if the plaintiff can show that "(1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered an adverse employment action, and [4] other employees with qualifications similar to her own were treated more favorably.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817).

6 . Cordova, 124 F.3d at 1148 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)).

7 . Godwin, 150 F.3d at 1221 (internal quotation marks omitted) (alteration in original).

8 . DeHorney v. Bank of Am. Nat't Trust & Sav. Assoc., 879 F.2d 459, 468 (9th Cir.1989).

9 . See id.; see also Willis v. Marion County Auditor’s Office, 118 F.3d 542, 548 (7th Cir.1997) (refusing to impute racial bias of subordinates who reported rule violation to superi- or because superior did her own independent investigation); Long v. Eastfield Coll., 88 F.3d 300, 306-07 (5th Cir.1996) (noting that, if final decisionmaker based decision on independent investigation, causal link between subordinate’s retaliatory motive and plaintiff's termination would be broken).

The dissent’s reliance upon Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir.1999), is misplaced. First, Gilbrook’s context is quite different. It addressed a claim of First Amendment retaliation using a mixed motive analysis, not a Title VII claim. Id. at 853. Procedurally, the Gilbrook court was faced with reviewing a jury verdict for the plaintiff. Id. at 855-56. Second, the Gilbrook court specifically reaffirmed the principle on which we rely: no nexus exists when the decision-maker makes an independent and legitimate decision to discipline the plaintiff. Id. at 855.

10 . Godwin, 150 F.3d at 1220; Cordova, 124 F.3d at 1148.

11 . Cf. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 n. 8, 1063-64. (9th Cir.2002) (assuming without deciding that plaintiff made out a prima facie case of discrimination but affirming grant of summary judgment against plaintiff because she did not demonstrate that the employer’s non-discriminatory explanations for her termination were pretex-tual).

12 . Cordova, 124 F.3d at 1148.

13 . Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1127 (9th Cir.2000).

14 . Gerdom v. Cont'l Airlines, Inc., 692 F.2d 602, 609 (9th Cir.1982) (en banc); see also Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir.2001) (concluding that a showing that similarly situated employees were treated in a like manner to plaintiff "negat[ed] any showing of pretext").

15 . Ward v. Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560-61 (8th Cir.1997); Cf. Wall v. Nat’l R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir.1983) (noting that district court did not err in concluding that plaintiff did not show that he was treated less favorably than similarly situated employees because other employees had no disciplinary record and were thus not similarly situated).

16 . See Ward, 111 F.3d at 561; Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir.2000).

17 . See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 (6th Cir.1999) (holding that, to be similarly situated, an employee must have the same supervisor, be subject to the same standards, and have engaged in the same conduct); see also Ward, 111 F.3d at 560-61 (holding that employees who both participated in an argument were not similarly situated because their offenses resulting from the argument were quite different).

18 . See Chuang, 225 F.3d at 1128 (finding direct evidence of pretext where member of decisionmaking body stated that "two chinks ... were more than enough”) (internal quotation marks omitted); Cordova, 124 F.3d at 1149 (finding direct evidence of pretext when employer referred to another employee as a "dumb Mexican”).

19 . Godwin, 150 F.3d at 1222; Cordova, 124 F.3d at 1149-50; Lindahl v. Air France, 930 F.2d 1434, 1438-39 (9th Cir.1991).

20 . Vasquez claimed discrimination based on national origin. However, a claim that he was discriminated against because he was Hispanic is actually a race based claim.

21 . 42 U.S.C. § 2000e-2(a)(l).

22 . Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir.1998).

23 . Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (internal quotation marks and citation omitted), reh’g denied, 533 U.S. 912, 121 S.Ct. 2264, 150 L.Ed.2d 248 (2001).

24 . Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir.2000) (internal quotation marks and citation omitted).

25 . 936 F.2d 1027 (9th Cir.1990).

26 . Id. at 1031, 1036.

27 . 147 F.3d 1104 (9th Cir. 1998).

28 . Id. at 1109.

29 . 256 F.3d 864 (9th Cir.2001).

30 . Id. at 870.

31 . 217 F.3d 1104 (9th Cir.2000).

32 . Id. at 1107.

33 . Id. at 1111.

34 . The district court only considered Vasquez’s allegation that the County retaliated against him for filing a discrimination charge with the EEOC. However, it appears that Vasquez did include in his claim the allegation that the County also retaliated against him for filing the original grievance against Berglund. Therefore, we will consider both parts of his claim.

35 . 42 U.S.C. § 2000e-5(b); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir.2002).

36 . B.K.B., 276 F.3d at 1099.

37 . Id. at 1100 (internal quotation marks and citation omitted).

38 . Id.

39 . Ong v. Cleland, 642 F.2d 316, 319 (9th Cir.1981) (stating that an EEOC charge must notify the agency of the legal theory being argued and the operative facts at issue).

40 . B.K.B., 276 F.3d at 1100.

41 . Kortan, 217 F.3d at 1112.

42 . 217 F.3d 1234 (9th Cir.2000).

43 . Id. at 1242-43; see also EEOC Compliance Manual § 8 "Retaliation” ¶ 8008 (1998).

44 . Ray, 217 F.3d at 1243.

45 . Id. at 1242-43 (quoting EEOC Compliance Manual § 8 "Retaliation” ¶ 8008 (1998)) (emphasis added).

46 . Kortan, 217 F.3d at 1112.

47 . See, e.g., Villiarimo, 281 F.3d at 1064-65 (finding no causal link when protected activity occurred "nearly a year and a half” before adverse employment action).

48 . See Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir.2003) (holding that it is error to consider the length of time in isolation and that three to eight month interval "can support an inference of retaliation” when “surrounding circumstances,” such as inconsistent application of a policy, suggest that the employer had a retaliatory motive).

49 . Ray, 217 F.3d at 1240, 1244.