                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


EFRAIN REYNAGA,                          No. 14-35028
            Plaintiff-Appellant,
                                         D.C. No.
               v.                   6:11-cv-06282-MC

ROSEBURG FOREST PRODUCTS,
           Defendant-Appellee.            OPINION


     Appeal from the United States District Court
               for the District of Oregon
     Michael J. McShane, District Judge, Presiding

          Argued and Submitted July 5, 2016
                  Portland, Oregon

                Filed January 26, 2017

        Before: Harry Pregerson, Carlos T. Bea,
         and John B. Owens, Circuit Judges.

             Opinion by Judge Pregerson;
                Dissent by Judge Bea
2         REYNAGA V. ROSEBURG FOREST PRODUCTS

                            SUMMARY*


                  Employment Discrimination

    The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the defendant
employer in an action brought by a millwright under Title
VII, 42 U.S.C. § 1981, and Oregon state law.

    The panel reversed the district court’s grant of summary
judgment on the following claims: (1) hostile work
environment, including employer liability through
negligence; (2) disparate treatment with regard to the
breaking of the plaintiff’s lock and the termination of his
employment; (3) retaliation with regard to the termination of
the plaintiff’s employment; and (4) corresponding state law
claims. The panel affirmed on other claims.

    The panel held that, as to the plaintiff’s hostile work
environment claim, a reasonable trier of fact could conclude
that (1) a lead millwright’s conduct was sufficiently severe or
pervasive to create a hostile work environment, and (2) the
employer knew about the lead millwright’s conduct and failed
to take corrective remedial action.

    As to the plaintiff’s disparate treatment claim, the panel
held that he demonstrated the necessary prima facie case to
survive summary judgment based on (1) the employer
terminating his employment and (2) breaking into his locker.
The panel further held that there was a genuine dispute of fact

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  3

as to the employer’s discriminatory intent regarding those
challenged actions.

    As to the plaintiff’s retaliatory termination claim, the
panel held that a reasonable trier of fact could conclude that
the employer’s proffered reason for terminating the plaintiff
was pretextual.

   The panel affirmed the district court’s grant of summary
judgment as to additional allegations of disparate treatment
and retaliation.

    Dissenting in part, Judge Bea wrote that he concurred in
the majority’s opinion reversing the district court’s summary
judgment on the plaintiff’s retaliatory termination claim. He
dissented in part because the employer took prompt and
effective action to rectify the hostile work environment
experienced by the plaintiff and terminated him only after he
repeatedly refused to work his assigned shifts. Judge Bea
wrote that the district court therefore concluded properly that
the plaintiff’s hostile work environment and disparate
treatment claims should fail as a matter of law.
4       REYNAGA V. ROSEBURG FOREST PRODUCTS

                       COUNSEL

Marianne G. Dugan (argued), Eugene, Oregon, for Plaintiff-
Appellant.

Jason Montgomery (argued) and Dan W. Clark, Dole
Coalwell Clark Mountainspring & Mornarich P.C., Roseburg,
Oregon, for Defendant-Appellee.


                        OPINION

PREGERSON, Circuit Judge:

    Appellant Efrain Reynaga and his son Richard Reynaga
worked as millwrights for Roseburg Forest Products
(“Roseburg”). According to Efrain, he and his son were the
only millwrights of Mexican descent at Roseburg. Efrain
alleges that during the course of his employment, he was
subjected to disparate treatment and a hostile work
environment because of his race or national origin.

     Efrain developed a contentious relationship with lead
millwright, Timothy Branaugh (“Branaugh”), who allegedly
harassed Efrain with racially disparaging comments. In
October and December 2009, Efrain lodged verbal and
written complaints with Roseburg management, alleging
racial harassment in the workplace. In response, Roseburg
initiated an investigation into Efrain’s allegations and
ultimately rearranged Branaugh’s work schedule so that he
would not be on the same shift as Efrain.

     On January 9, 2010, Efrain and Richard arrived at work
to find Branaugh assigned to the same shift. After notifying
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  5

Roseburg that they would not work in a hostile environment,
Efrain and Richard immediately left the premises. A few
days later, Efrain and Richard showed up to work but refused
to complete their shift because Branaugh was also scheduled
for work at the same time. A supervisor then suspended
Efrain and Richard. On January 18, 2010, Roseburg
terminated Efrain and Richard’s employment.

    Efrain filed suit against Roseburg, alleging hostile work
environment, disparate treatment, and retaliation in violation
of state and federal civil rights laws. Richard was not a party
to the litigation. The district court granted Roseburg’s
motion for summary judgment on all counts. Efrain timely
appealed. We reverse in part and affirm in part the district
court’s ruling.

               FACTUAL BACKGROUND

    Efrain was born in Mexico and moved to the United
States several decades ago at age 15. He became a United
States citizen in 1981. From 2004 to 2010, Efrain worked as
a millwright at Roseburg, where he performed his job well
and received positive evaluations. Efrain’s son, Richard,
worked at Roseburg for about two years. Efrain and Richard
were the only Hispanic millwrights at Roseburg.

    Efrain claims that during the course of his employment
with Roseburg, he was subjected to racially disparaging
statements and disparate treatment because of his race. His
allegations largely pertain to lead millwright Branaugh,
whom Efrain describes as a “physically very large” and
“aggressive” “bully” who liked to intimidate people.
6       REYNAGA V. ROSEBURG FOREST PRODUCTS

    Efrain alleges that Branaugh frequently made racially
derogatory comments and engaged in other harassing
conduct, including: (1) Branaugh referred to black people as
“niggers” and Arabs as “rugheads;” (2) in September 2009,
after Efrain received hunting tags for the second year in a
row, Branaugh said, “I’m a true believe [sic] that we should
close the borders to keep motherf***ers like you from
coming up here and killing our elk. I know one motherf**er
[sic] who drew tags back to back;” (3) in September 2009,
Branaugh stated, “Minorities are taking over the country;”
(4) Branaugh asked, “Efrain, are all Mexican women fat?”
(5) Branaugh, aware that Efrain’s wife is Native American,
referred to Native American women as “nasty fat squaws;”
(6) Branaugh belittled Efrain in front of an apprentice, stating
that Efrain was “a big boy” with a “little, tiny dick” who
“needs all the help he can get;” and (7) on October 14, 2009,
while Efrain was rebuilding an accumulator, Branaugh
commented, “Boy, you’re slow,” and remarked to the other
millwrights, “Man, he just dinks around.”

    Efrain also alleges several instances of disparate treatment
and retaliation at Roseburg: (1) On November 12, 2008, the
police brought drug-sniffing dogs to the Roseburg facility.
They broke the lock to Efrain and Richard’s shared locker
even though Richard was present and offered to open it. The
police did not find anything nefarious inside. Roseburg did
not break the lock to a white millwright’s locker even though
a dog alerted to it; (2) after Efrain broke his leg on the job, he
was required to work and go up and down the stairs while
others with similar injuries were allowed to stay home;
(3) Branaugh and four other millwrights composed one crew
while Efrain and Richard alone composed a second crew, but
both crews received the same amount of work; (4) Efrain and
Richard were frequently assigned the harder, dirtier, and more
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  7

dangerous jobs, such as cleaning the hydraulic room;
(5) Efrain had to file written reports on repairs when other
millwrights did not have to, and he was harassed about the
length of time he took to perform repairs while others were
not similarly harassed; (6) Roseburg denied Efrain a company
email account, but gave them to other mill workers; (7) after
Efrain filed a written complaint about the hostile work
environment, work orders were no longer made available to
Efrain and Richard, so they had to consult the work board to
figure out what job to do; and (8) after Efrain filed a written
complaint, Roseburg put 16 millwrights back to full-time
work (from part-time), but did not do so for Efrain and
Richard.

    In October 2009, the alleged hostile work environment
worsened. On October 14, 2009, after Branaugh questioned
Efrain’s work ethic, they engaged in a verbal confrontation
over who needed to work on a particular piece of machinery.
The next day, Richard spoke with Terry Turner, Roseburg’s
maintenance superintendent, about Branaugh’s harassing
behavior. A few days later, Richard and Branaugh engaged
in an altercation related to seniority and performance of a
particular welding job.        Roseburg investigated this
altercation. Efrain cooperated in the investigation and
complained to management about Branaugh. The next day,
Roseburg’s managing personnel met with Branaugh to
discuss Efrain and Richard’s complaints. They told Branaugh
that he “can make people uncomfortable” and they “coached
Branaugh on his leadership skills.”

   On December 3, 2009, Efrain filed a written complaint
with Roseburg, alleging harassment and discrimination by
Branaugh. In response to the complaint, Roseburg hired
Vigilant, a company that specializes in employment relations,
8       REYNAGA V. ROSEBURG FOREST PRODUCTS

to investigate the allegations. On December 10, 2009,
Vigilant interviewed Efrain. Efrain stated that Branaugh had
made racist statements, had been harassing Efrain for “a long
time,” and that Efrain did not want to work with Branaugh.
Subsequently, Roseburg rearranged Branaugh’s schedule so
that he would not be on the same shift as Efrain.

    On December 21, 2009, Vigilant contacted Efrain to
conduct a follow-up interview. Efrain stated that he would
only participate if he had an attorney present, but Roseburg’s
policy did not allow attorneys to be involved with plant-level
investigations. Efrain claims that he subsequently informed
Roseburg that he was willing to be interviewed a second time
without an attorney, but Roseburg never followed up.

    On January 4, 2010, Branaugh left in the break room a
printed email containing an article that claimed President
Obama was an illegal alien and that “our borders are like
sieves.” When Efrain read it, he was “very concerned about
the racial hostility and harassment at work.” A few days
later, on January 9, 2010, Efrain and Richard arrived at work
for their shift, and upon discovering that Branaugh was also
on site, they immediately left the premises. Richard notified
Roseburg via email about Branaugh’s presence on the same
shift and stated, “We will not work in a hostile work
environment. We will report to our shift on Wednesday,
Jan[.], 13, 2010 . . . [u]nless we hear otherwise.”

   On January 13, 2010, Efrain and Richard showed up to
work and were asked to meet with Dan Johnson, Roseburg’s
Human Resources and Safety Supervisor, to discuss their
walking off the job on January 9. Johnson told Efrain and
Richard that “Branaugh would be off-shift . . . as much as
possible, but that there were some days where Branaugh and
        REYNAGA V. ROSEBURG FOREST PRODUCTS                   9

the Reynagas would be on the plant site at the same time.”
Johnson said that Branaugh had been instructed to stay away
from Efrain and Richard, and to have “no contact with them
unless a work necessity or emergency arose.” Johnson
directed Efrain and Richard to do the same and asked if they
would complete their shift that day with Branaugh on the
premises. Efrain and Richard responded that they would not
work with Branaugh, so Johnson suspended them “pending
the conclusion of the investigation.” That same day,
Branaugh revved his engine at Efrain and Richard as they
were waiting in the parking lot for their shift to begin.

     On January 18, 2010, Efrain received a letter explaining
that his employment was terminated “for walking off the job
on January 9, 2010, and refusing to work on January 13,
2010.” On the same date, Efrain received a second letter
explaining that he exhibited a lack of “full cooperation” with
the investigation and that Roseburg was “forced to conclude
[its] investigation absent a follow up and closing interview[.]”
The letter also stated that the investigation revealed “no
evidence of a severe or pervasive hostile work environment,”
but did reveal some “personnel issues and [Roseburg]
intend[ed] to address those issues . . . but [Efrain was]
unwilling to meet . . . despite . . . repeated phone calls and
attempts to communicate.”

            PROCEDURAL BACKGROUND

    On July 31, 2012, Efrain filed a First Amended Complaint
that alleged three causes of action for discrimination under
42 U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e (“Title VII”): (1) hostile work
environment; (2) disparate treatment; and (3) retaliation.
Efrain also alleged a fourth cause of action for relief under
10       REYNAGA V. ROSEBURG FOREST PRODUCTS

Oregon state law for disparate treatment (O.R.S.
§ 659A.030(1)(a)) and hostile work environment (O.R.S.
§ 659A.030(1)(b)).1

    Roseburg moved for summary judgment. The district
court granted summary judgment in favor of Roseburg on all
claims. Efrain timely appealed.

     JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291, and we
review de novo the district court’s grant of summary
judgment. See Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027, 1033 (9th Cir. 2005). “Viewing the evidence
in the light most favorable to the nonmoving party, we must
determine whether there are any genuine disputes of material
fact and whether the district court correctly applied the
relevant substantive law.” Id. An issue of fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

                           DISCUSSION

    Efrain contends that the district court erred in granting
summary judgment because there are genuine disputes of
material fact for each of his claims. As to Efrain’s hostile
work environment claim, we hold that a reasonable trier of
fact could conclude that (1) Branaugh’s conduct was
sufficiently severe or pervasive to create a hostile work

   1
     Efrain did not allege a state law claim for retaliation under O.R.S.
659A.030(1)(f).
        REYNAGA V. ROSEBURG FOREST PRODUCTS                   11

environment, and (2) Roseburg knew about Branaugh’s
misconduct and failed to take effective remedial action. As
to Efrain’s disparate treatment claim, we hold that Efrain has
demonstrated the necessary prima facie case to survive
summary judgment based on (1) Roseburg terminating
Efrain’s employment and (2) breaking into Efrain’s locker.
We further hold that there is a genuine dispute of fact as to
Roseburg’s discriminatory intent regarding those challenged
actions. Finally, as to Efrain’s retaliatory termination claim,
we hold that a reasonable trier of fact could conclude that
Roseburg’s proffered reason for terminating Efrain was
pretextual.

    Accordingly, we reverse and remand for a trial on
Efrain’s claims of hostile work environment, disparate
treatment, and retaliation. We affirm the district court’s grant
of summary judgment on certain other issues discussed
below.

I. Hostile Work Environment

    Efrain first argues that the district court erred in granting
summary judgment to Roseburg on his hostile work
environment claim. This “First Claim for Relief” is divided
into two counts under Title VII and 42 U.S.C. § 1981. We
have recognized that the “legal principles guiding a court in
a Title VII dispute apply with equal force in a § 1981 action.”
Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir.
2003). Accordingly, any discussion herein regarding Efrain’s
Title VII claims also applies to his corresponding § 1981
claims.

    Under Title VII of the Civil Rights Act of 1964, it is
unlawful for an employer to discriminate against an
12      REYNAGA V. ROSEBURG FOREST PRODUCTS

individual with respect to the compensation, terms,
conditions, or privileges of employment because of the
individual’s race. 42 U.S.C. 2000e-2(a)(1). This includes a
prohibition against the creation of a hostile work
environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (“When the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment, Title VII is violated.”) (internal quotation marks
and citations omitted); Woods v. Graphic Comm’ns, 925 F.2d
1195, 1200 (9th Cir. 1991) (“Courts have long recognized
that a workplace in which racial hostility is pervasive
constitutes a form of discrimination.”).

     A. Severe or Pervasive Hostile Work Environment

     To succeed on a hostile work environment claim based on
race, the plaintiff must demonstrate: “(1) that he was
subjected to verbal or physical conduct of a racial . . . nature;
(2) that the conduct was unwelcome; and (3) that the conduct
was sufficiently severe or pervasive to alter the conditions of
the plaintiff’s employment and create an abusive work
environment.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634,
642 (9th Cir. 2003). It is undisputed that Efrain has met his
burden on the first two elements. Therefore, to survive
summary judgment, Efrain must show the existence of a
genuine factual dispute as to (1) whether the workplace
conditions were “sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working
environment” and (2) whether Roseburg, once apprised of
Branaugh’s behavior, failed to take adequate remedial and
disciplinary action, such that Roseburg may be liable
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  13

vicariously or through negligence. See Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1462–63 (9th Cir. 1994).

    In assessing whether a work environment is sufficiently
hostile, the court examines 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.” Faragher v. City of Boca Raton, 524 U.S.
775, 787–88 (1998) (quoting Harris, 510 U.S. at 23). “The
required level of severity or seriousness varies inversely with
the pervasiveness or frequency of the conduct.” Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001)
(internal quotation marks and citation omitted).

    “[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious)” are not sufficient to
create an actionable claim under Title VII, but the harassment
need not be so severe as to cause diagnosed psychological
injury. Faragher, 524 U.S. at 788 (internal quotation marks
and citation omitted); see also Harris, 510 U.S. at 22. It is
enough “if such hostile conduct pollutes the victim’s
workplace, making it more difficult for her to do her job, to
take pride in her work, and to desire to stay in her position.”
Steiner, 25 F.3d at 1463. We have held that such hostility
need not be directly targeted at the plaintiff to be relevant to
his or her hostile work environment claim. McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004).

   The plaintiff must show that the work environment was
both subjectively and objectively hostile. Nichols, 256 F.3d
at 871–72. It is undisputed that Efrain perceived his
workplace to be hostile, as evidenced by his repeated
complaints about Branaugh. As to the objective inquiry, we
14      REYNAGA V. ROSEBURG FOREST PRODUCTS

assess whether the workplace was hostile from the
perspective of a reasonable person belonging to the plaintiff’s
racial or ethnic group (here, Hispanic/Mexican). McGinest,
360 F.3d at 1115.

    The district court stated that it was “certainly troubled by
[Reynaga’s] allegations and recognizes that these events
caused [him] to suffer pain.” However, the district court
concluded that Branaugh’s conduct was not severe or
pervasive enough to alter the conditions of Efrain’s
employment. We disagree. Viewing the facts in the light
most favorable to Efrain, the incidents described in the record
are sufficient to create genuine disputes of material fact as to
the severity and pervasiveness of Branaugh’s conduct.

     Efrain’s evidence reveals repeated instances in which
Branaugh allegedly made explicit racial and national origin
comments in the workplace, including: (1) Branaugh referred
to black people as “niggers” and Arabs as “rugheads;”
(2) after Efrain received hunting tags for a second year in a
row, Branaugh said, “I’m a true believe [sic] that we should
close the borders to keep motherf***ers like you from
coming up here and killing our elk. I know one motherf**er
[sic] who drew tags back to back;” (3) Branaugh stated,
“Minorities are taking over the country;” (4) Branaugh asked,
“Efrain, are all Mexican women fat?” (5) Branaugh, aware
that Efrain’s wife is Native American, referred to Native
American women as “nasty fat squaws;” and (6) Branaugh
left in the break room a printed email containing an article
that claimed President Obama was an illegal alien and that
“our borders are like sieves.”

   A reasonable jury could find that Branaugh’s alleged
conduct would be highly offensive and demeaning to anyone,
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  15

especially a person from Mexico. Efrain identifies several
derogatory remarks that Branaugh made specifically about
Mexicans, including comments about the “border” that were
tinged with racism. Branaugh also allegedly used racial slurs,
including the word “nigger,” which is “perhaps the most
offensive and inflammatory racial slur in English, . . . a word
expressive of racial hatred and bigotry.” McGinest, 360 F.3d
at 1116 (citation omitted).

    Viewing the evidence favorably to Efrain, Branaugh was
not only racially hostile, but also generally derogatory:
(1) Branaugh belittled Efrain in front of an apprentice, stating
that Efrain was “a big boy” with a “little, tiny dick” who
“needs all the help he can get;” (2) while Efrain was
rebuilding an accumulator, Branaugh said, “Boy, you’re
slow” and commented to the other millwrights, “Man, he just
dinks around;” and (3) on January 13, 2010, after Roseburg
had attempted to separate Branaugh from Efrain and Richard,
Branaugh revved his engine at them in the parking lot. These
instances, along with the racist comments listed above, reflect
a workplace that had been polluted with insult and
intimidation.

    Contrary to the district court’s conclusion, the demeaning
comments that directly reference race or national origin were
not “offhand comments” or “mere offensive utterance[s].”
Faragher, 524 U.S. at 788. Efrain’s evidence includes
repeated examples of unwelcome conduct of a racial nature,
and Efrain declared that “[i]n 2009 . . . Branaugh was
harassing me regularly,” and “Branaugh was always making
racist comments at work.” Efrain also stated that he felt
physically threatened in the workplace: “I was extremely
concerned that Branaugh . . . [was] going to physically harm
me or my son at work. The work involves dangerous
16      REYNAGA V. ROSEBURG FOREST PRODUCTS

machinery and requires putting extreme trust in your
coworkers.” Additionally, Union Shop Steward Scott
Albertus testified in deposition that, at the mill, “there was a
general attitude that [Branaugh] was allowed to pick on
people.”

    Looking at the evidence in Efrain’s favor, as we must on
summary judgment, the harassing conduct interfered with
Efrain’s work performance to the extent that it resulted in
confrontations with Branaugh and led Efrain to register verbal
and written complaints with management. Additionally,
Branaugh’s conduct was so extreme that Roseburg had to
make sure that Branaugh and Efrain and Richard were not
scheduled to work on the same shift. Ultimately, Efrain and
Richard felt compelled to leave the workplace because
Branaugh was present.

    Viewing the evidence in the light most favorable to
Efrain, we hold that a reasonable trier of fact could conclude
that Branaugh’s repeated racially derogatory and humiliating
remarks were sufficiently severe or pervasive to create a
hostile work environment.

     B. Employer Liability for Hostile Work Environment

    An employer may be held liable for creating a hostile
work environment either vicariously (i.e., through the acts of
a supervisor) or through negligence (i.e., failing to correct or
prevent discriminatory conduct by an employee). McGinest,
360 F.3d at 1119.
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  17

       1. Vicarious Liability

    An employer is vicariously liable for a hostile work
environment created by a supervisor. Vance v. Ball State
Univ., 133 S. Ct. 2434, 2439 (2013). A supervisor is a person
who can take tangible employment actions against an
employee, including effecting “significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or
a decision causing a significant change in benefits.” Id. at
2443 (citation omitted).

    At the district court, Efrain conceded that Branaugh was
not a supervisor, but argues otherwise on appeal. As a lead
millwright, Branaugh had the authority to direct the work of
other millwrights and tell them which tasks to perform that
day. Beyond this, Efrain does not provide any evidence that
Branaugh had supervisory authority to effect significant
change in the employment status of other employees.
Instead, the record shows that lead millwrights at Roseburg
did not have hiring, firing, or disciplinary authority. Thus,
Efrain has not raised a genuine dispute of material fact on this
issue, and Roseburg cannot be held liable for Branaugh’s
conduct under a theory of vicarious liability.

       2. Negligence

    In the absence of grounds for imposing vicarious liability,
an employer is liable for a hostile work environment created
by a plaintiff’s co-worker if the employer “knew, or should
have known, about the harassment and failed to take prompt
and effective remedial action.” E.E.O.C. v. Prospect Airport
Servs., Inc., 621 F.3d 991, 1001 (9th Cir. 2010). Remedial
action must include some form of disciplinary measures,
18      REYNAGA V. ROSEBURG FOREST PRODUCTS

Yamaguchi v. U.S. Dep’t of the Air Force, 109 F.3d 1475,
1482 (9th Cir. 1997), which must be “proportionate[] to the
seriousness of the offense.” Ellison v. Brady, 924 F.2d 872,
882 (9th Cir. 1991) (citation omitted) (“Title VII requires
more than a mere request to refrain from discriminatory
conduct.”).

    The record establishes that a reasonable trier of fact could
find that Roseburg knew about Branaugh’s misconduct and
responded inadequately. On October 14, 2009, Efrain had a
verbal confrontation with Branaugh, and the next day,
Richard spoke with Terry Turner, Roseburg’s maintenance
supervisor, about Branaugh’s harassing conduct. Then, on
October 17, 2009, Richard and Branaugh engaged in an
altercation related to seniority and performance of a welding
job. Efrain cooperated in Roseburg’s investigation of that
incident and complained to management about Branaugh.

    The parties dispute the specific nature of Efrain’s
complaints, as well as the manner in which Roseburg
conducted its investigation into those complaints. For
example, Union Shop Steward Scott Albertus testified that
Efrain did not make a verbal complaint about a “racial issue.”
Efrain, on the other hand, testified that he told Albertus and
Roseburg management that Branaugh was harassing him in
a racist manner.

    Additionally, Maintenance Supervisor Terry Turner
testified that he, Albertus, and Master Mechanic Dick
Westbrook met with Branaugh on October 18, 2009, in
response to Efrain’s verbal complaint. However, Efrain
testified that Albertus admitted to him that he did not attend
that meeting. Efrain also claims that Albertus told him
Westbrook had indeed “reprimanded” Branaugh, but that
        REYNAGA V. ROSEBURG FOREST PRODUCTS                19

Albertus was skeptical of any real reprimand, remarking,
“How do I know – they probably sat together and drank Coca
Cola.”

    Efrain provides further evidence that Roseburg did not
respond appropriately to Efrain’s verbal complaints. Master
Mechanic Westbrook testified at deposition that he “[n]ever
g[a]ve [Branaugh] any kind of formal disciplinary action” and
that his conversations with Branaugh consisted of platitudes,
such as, “I hope you learn from your mistakes. Don’t do it
again.” In fact, the evidence in the record reveals that in
response to Efrain’s complaint in October 2009, Roseburg’s
managing personnel simply “coached Branaugh on his
leadership skills” and told him he “can make people
uncomfortable.”

    As another point of dispute, Roseburg contends that
Efrain interfered with the investigation into his December
written complaint by refusing to be interviewed a second time
and by walking off the job. Efrain responds that he told
Roseburg’s human resources representative, Dan Johnson,
that he would participate in a second interview without an
attorney, but Roseburg never followed up.

    These disputes underscore why this case presents
questions of material fact and credibility determinations that
are appropriate for a jury. Not only was Roseburg’s mid-
October meeting with Branaugh arguably insufficient to
address the seriousness of Efrain and Richard’s allegations of
discriminatory and harassing behavior, a reasonable trier of
fact could also find that it was ineffective. After meeting
with management, Branaugh continued to harass Efrain,
prompting Efrain to file a written complaint in early
December 2009. It was only then that Roseburg hired an
20      REYNAGA V. ROSEBURG FOREST PRODUCTS

independent company (Vigilant) to investigate the
allegations, which eventually led to Roseburg’s decision to
schedule Branaugh on a separate shift from Efrain.

    The record indicates that Roseburg may have acted
promptly in investigating Efrain’s complaints, but prompt
action is not enough. The remedial measures must also be
effective. See Nichols, 256 F.3d at 875–76 (“When the
employer undertakes no remedy, or where the remedy does
not end the current harassment and deter future harassment,
liability attaches for both the past harassment and any future
harassment.”).

    There is a genuine dispute of fact as to whether
Roseburg’s response was effective. After all, Efrain declares
that Branaugh continued to harass him even after meeting
with management in October. And even though Roseburg
contends that it tried to separate Branaugh from Efrain and
Richard, the men were still assigned to the same shift on
January 9, 2010, and were in close enough proximity for
Branaugh to rev his engine at Efrain and Richard on January
13.

    Because Efrain has established genuine disputes of fact as
to whether Roseburg fostered and failed to remedy a racially
hostile work environment, we reverse the district court’s
grant of summary judgment on Efrain’s hostile work
environment claim.

II. Disparate Treatment

   In addition to facing liability by creating a hostile work
environment, an employer is liable under Title VII and
§ 1981 when it subjects an employee to disparate treatment.
        REYNAGA V. ROSEBURG FOREST PRODUCTS                21

To show a prima facie case of disparate treatment, a plaintiff
must offer evidence that “give[s] rise to an inference of
unlawful discrimination.” Sischo-Nownejad v. Merced Cmty.
Coll. Dist., 934 F.2d 1104, 1110 (9th Cir. 1991) (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 250, 253
(1981)). One way to establish an inference of discrimination
is by satisfying the prima facie elements from McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973): (1) the
plaintiff belongs to a protected class, (2) he was performing
according to his employer’s legitimate expectations, (3) he
suffered an adverse employment action, and (4) similarly
situated employees were treated more favorably, or other
circumstances surrounding the adverse employment action
give rise to an inference of discrimination. Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010); Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)
(citing McDonnell Douglas, 411 U.S. at 802).

    Under the McDonnell Douglas burden-shifting
framework, when the plaintiff demonstrates his prima facie
case, the burden shifts to the defendant to provide a
legitimate, non-discriminatory reason for the adverse
employment action. Hawn, 615 F.3d at 1155. If the
defendant meets this burden, then the plaintiff “must then
raise a triable issue of material fact as to whether the
defendant’s proffered reasons . . . are mere pretext for
unlawful discrimination.” Id.

    However, nothing compels the parties to use the
McDonnell Douglas framework. McGinest, 360 F.3d at
1122. In the alternative, a plaintiff may simply produce
direct or circumstantial evidence demonstrating that a
discriminatory reason “more likely than not motivated” the
employer. Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
22      REYNAGA V. ROSEBURG FOREST PRODUCTS

2007) (citation omitted); see also Hawn, 615 F.3d at 1155
(explaining that a plaintiff may show an inference of
discrimination “through comparison to similarly situated
individuals, or any other circumstances surrounding the
adverse employment action [that] give rise to an inference of
discrimination”) (internal quotation marks and citation
omitted). Either way, we require “very little evidence to
survive summary judgment in a discrimination case, because
the ultimate question is one that can only be resolved through
a searching inquiry–one that is most appropriately conducted
by the factfinder, upon a full record.” Schnidrig v. Columbia
Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (internal
quotation marks and citation omitted).

    Efrain bases his disparate treatment claim on a number of
alleged instances of discriminatory employment actions, the
foremost being his termination. Efrain alleges that his
employment was terminated because of his race or national
origin, and/or because he made complaints about being
discriminated against. The district court determined that even
assuming Efrain could make out a prima facie case of
disparate treatment based on his termination, he could not
establish that Roseburg’s articulated, non-discriminatory
reason for the termination was pretextual.

     We disagree, and hold that Efrain has established the
necessary disputes of material fact to survive summary
judgment. Roseburg concedes that Efrain has satisfied the
first three elements of the prima facie case, but maintains that
Efrain has not shown that similarly situated employees were
treated more favorably because there is no evidence that non-
Hispanic employees have walked off the job (like Efrain) and
not been terminated.
        REYNAGA V. ROSEBURG FOREST PRODUCTS                 23

    Roseburg is correct that there is no evidence in the record
of similarly situated employees being treated more favorably
in that precise manner. But there is sufficient evidence to
give rise to an inference of discrimination based on two non-
Hispanic employees (Branaugh and Mike Martin) being
treated more favorably than Efrain. The record indicates that
Branaugh was hardly reprimanded (and, significantly, not
terminated) after several complaints were made about his
hostile behavior, and Martin, a white employee, was not
subjected to the same lock-cutting intrusion as Efrain. We
therefore hold that Efrain has presented sufficient evidence to
satisfy the fourth element of his prima facie case. Because
Efrain has demonstrated a prima facie case, the burden shifts
to Roseburg to provide a legitimate, non-discriminatory
reason for the termination. See Vasquez, 349 F.3d at 641.

    Roseburg contends that it terminated Efrain for walking
off the job on January 9, 2010, and for refusing to work as
scheduled on January 13, 2010. In response, Efrain presents
sufficient evidence to establish a genuine dispute of material
fact as to whether Roseburg’s claimed reasons for termination
were pretextual. In January 2010, with full knowledge of
Branaugh’s behavior, Roseburg required Efrain to work at the
same site as Branaugh. Roseburg thereby conditioned
Efrain’s employment on his willingness to work with a co-
worker who had a proven history of repeatedly and
persistently harassing Efrain based on his race and national
origin. This fact, along with the evidence of Roseburg’s
failure to ever legitimately reprimand Branaugh, is sufficient
to establish a genuine dispute of fact as to Roseburg’s
discriminatory intent in firing Efrain. Accordingly, the
district court erred in granting summary judgment in favor of
Roseburg on the discriminatory termination claim.
24      REYNAGA V. ROSEBURG FOREST PRODUCTS

    We also hold that Efrain’s disparate treatment claim
based on the lock-cutting incident survives summary
judgment. Efrain claims that Roseburg’s act of breaking into
Efrain and Richard’s locker during a search of the mill was
discriminatory. It is undisputed that on November 12, 2008,
Roseburg brought in a narcotics task force with drug sniffing
dogs to search certain areas of the mill. During the search, a
lock was cut off the locker that Efrain and his son shared.

    The parties dispute the remaining circumstances of the
search. Union Shop Steward Scott Albertus testified that a
drug-sniffing dog approached Efrain’s locker, at which point
Roseburg ordered the lock cut and the locker searched.
Richard testified that he was present during the search and
offered to open the locker with a key, but management waved
him away and broke the lock. Richard also testified that the
dogs alerted to the locker of a white co-worker, Mike Martin.
The record does not indicate that Roseburg broke the lock on
Martin’s locker, and Efrain testified that he heard that
Martin’s locker was not searched.

    Precisely because the events of the search are unclear, we
hold that Efrain has raised the necessary disputes of material
fact to survive summary judgment. See Villiarimo, 281 F.3d
at 1062 (“This Court has explained that under the McDonnell
Douglas framework, ‘[t]he requisite degree of proof
necessary to establish a prima facie case for Title VII
discrimination does not even need to rise to the level of a
preponderance of the evidence.’”) (quoting Walls v. J.R.
Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)); see also Diaz
v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.
2008) (“As a general matter, the plaintiff in an employment
discrimination action need produce very little evidence in
order to overcome an employer’s motion for summary
        REYNAGA V. ROSEBURG FOREST PRODUCTS                 25

judgment.”) (quoting Chuang v. Univ. of Cal. Davis, Bd. of
Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).

    Viewing the evidence favorably to Efrain, he is able to
satisfy his prima facie case of disparate treatment based on
the lock-cutting incident. Efrain has presented sufficient
evidence that he belongs to a protected class (he is Hispanic),
and that he was performing according to his employer’s
legitimate expectations (he performed his job well and
received positive evaluations). He has also shown that he
suffered an adverse employment action; Roseburg’s act of
breaking into Efrain’s locker without notice materially
affected the terms, conditions, or privileges of Efrain’s
employment because it was a “substantial interference with
work facilities important to the performance of the job.”
Chuang, 225 F.3d at 1125–26 (holding that the forcible
relocation of plaintiff’s laboratory space more than qualified
as an adverse employment action). Finally, Efrain has
presented evidence that a similarly situated employee was
treated more favorably than he, as a white co-worker’s locker
was not broken into after a drug-sniffing dog alerted to it.
Our holding that summary judgment is unwarranted is also
bolstered by Roseburg’s failure to provide a legitimate, non-
discriminatory reason why it broke Efrain and Richard’s lock
rather than just letting Richard open it with a key.

    The district court held that Efrain’s allegations were
insufficient to give rise to an inference of unlawful
discrimination because they were “largely unsubstantiated.”
In refusing to give weight to Efrain and Richard’s
declarations about the locker room search, the district court
erred. “That an affidavit is selfserving bears on its
credibility, not on its cognizability for purposes of
establishing a genuine issue of material fact.” United States
26      REYNAGA V. ROSEBURG FOREST PRODUCTS

v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). If Efrain
and Richard’s declarations stated only conclusions, and not
“such facts as would be admissible in evidence,” then the
declarations would not be cognizable. Id. (citation omitted).
But the declarations do state facts of which Efrain and
Richard have personal knowledge and should not be
discredited outright. Ultimately, Efrain has presented
sufficient evidence to raise a genuine dispute of fact as to
discriminatory intent behind the lock-cutting.

    As to Efrain’s remaining allegations of disparate
treatment, the district court correctly held that Efrain did not
provide sufficient evidence that those incidents constitute
adverse employment actions or that similarly situated
employees were treated more favorably. Therefore, the
district court did not err in granting summary judgment as to
those additional allegations of disparate treatment.

III.   Retaliation

    To establish a prima facie case of retaliation, Efrain must
show “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.”
Vasquez, 349 F.3d at 646. “[O]nly non-trivial employment
actions that would deter reasonable employees from
complaining about Title VII violations will constitute
actionable retaliation.” Brooks v. City of San Mateo,
229 F.3d 917, 928 (9th Cir. 2000).

    Similar to the disparate treatment context, if Efrain
establishes a prima facie case, the burden then shifts to
Roseburg to advance a legitimate, nonretaliatory reason for
any adverse employment action taken against Efrain. Steiner,
        REYNAGA V. ROSEBURG FOREST PRODUCTS                 27

25 F.3d at 1464–65. If Roseburg meets this burden, then
Efrain “has the ultimate burden of showing that [Roseburg’s]
proffered reasons are pretextual.” Id. at 1465.

    Efrain alleges that Roseburg retaliated against him for
complaining about Branaugh orally in October 2009 and by
written complaint in December 2009. As the district court
correctly held, Efrain’s complaints about Branaugh are
protected activity under Title VII. See Brooks, 229 F.3d at
928 (explaining that “[a]sserting one’s civil rights” is a
protected activity). Therefore, Efrain has satisfied the first
element of the prima facie case.

    As to the second element of the prima facie case, Efrain
alleges five instances of retaliatory adverse employment
action: (1) In November 2009, Efrain and Richard were
required to work at the powerhouse while five white
millwrights worked a better job; (2) on December 30, 2009,
Roseburg converted 16 millwrights from part-time to full-
time but did not do so for Efrain and Richard; (3) in January
2010, work orders were no longer made available to Efrain
and Richard, so they had to consult the work board to figure
out what job to do; (4) Branaugh and four other millwrights,
who composed one crew, received an equivalent level of
work as Efrain and Richard, who alone composed a second
crew; and (5) on January 18, 2010, Efrain was terminated.

    The district court correctly held that Efrain’s first four
alleged instances of retaliation do not satisfy his prima facie
burden because the alleged actions are either too trivial or
Efrain has not established the necessary causal link between
the alleged actions and his complaints. The district court also
correctly held, however, that as to the retaliatory termination
claim, Efrain has met his prima facie burden. Because Efrain
28      REYNAGA V. ROSEBURG FOREST PRODUCTS

has met his prima facie burden for the retaliatory termination
claim, the burden shifts to Roseburg to provide “legitimate,
nonretaliatory reasons” for the termination. Steiner, 25 F.3d
at 1464–65. If Roseburg is able to do so, then Efrain must
show that Roseburg’s proffered reasons are pretextual. Id. at
1465.

    The district court noted that Roseburg offered two non-
retaliatory reasons for the termination—Efrain walked off the
job on January 9, 2010, and refused to work as scheduled on
January 13, 2010. The district court held that Efrain failed to
show that those reasons were pretextual. We disagree, and
hold that Efrain has established a genuine dispute of material
fact as to pretext.

    In McDonnell Douglas, the Supreme Court explained that
evidence of pretext can take many forms. 411 U.S. at
804–05. For example, the manner in which the plaintiff was
treated by his employer during his employment may be
relevant to a showing of pretext. Id. Additionally, the fact
that persons outside the plaintiff’s protected class were
treated better for offenses of comparable seriousness could
also help demonstrate pretext. Id. at 805. The Court also
explained in Reeves v. Sanderson Plumbing Prods., Inc. that
whether summary judgment is appropriate depends on a
number of factors, including the strength of the plaintiff’s
prima facie case and “the probative value of the proof that the
employer’s explanation is false.” 530 U.S. 133, 148–49
(2000).

    Here, the district court erred by focusing on “Plaintiff’s
unspecified reliance on prior allegations of disparate
treatment.” Efrain did more than rely on unspecified
allegations to demonstrate a genuine dispute of fact as to
        REYNAGA V. ROSEBURG FOREST PRODUCTS                 29

pretext. For one, Efrain’s prima facie case is strong,
particularly in light of the timing of the termination. Efrain
had worked at Roseburg for more than five years, yet he was
fired barely one month after making a formal written
complaint. Proof of a causal link between Efrain’s complaint
and his termination—as evidenced by temporal proximity—is
certainly relevant to an evaluation of pretext. See Dawson v.
Entek Int’l, 630 F.3d 928, 937 (9th Cir. 2011) (“In some
cases, temporal proximity can by itself constitute sufficient
circumstantial evidence of retaliation for purposes of both the
prima facie case and the showing of pretext.”).

    Second, Efrain also presents evidence that he was treated
less favorably than other employees outside of the protected
class. For example, the record indicates that Branaugh
subjected Efrain to a hostile work environment, yet Branaugh,
a white man, was not seriously punished. In contrast to
Roseburg’s benign treatment of Branaugh, Efrain was
terminated for missing just one and a half day’s work.
Notably, those were days that Efrain refused to work
specifically because Branaugh was on the same shift.

    Efrain’s evidence as to how he was treated during his
employment, the timing of his termination being one month
after his written complaint, and the disparity in punishment
between Efrain and Branaugh are sufficient to establish a
genuine dispute of fact as to whether Roseburg’s proffered
reason for terminating Efrain’s employment was pretextual.
Therefore, the district court erred in granting summary
judgment in favor of Roseburg on Efrain’s claim of
retaliatory termination.
30      REYNAGA V. ROSEBURG FOREST PRODUCTS

IV.    State Law Claims

    This court has held that the substantive analysis for Title
VII and § 1981 claims also applies to discrimination claims
under O.R.S. §§ 659A.030(1)(a), (b). Dawson, 630 F.3d at
934–35. Therefore, pursuant to the analysis in Parts I and II,
supra, the district court erred in granting Roseburg’s motion
for summary judgment on Efrain’s state law claims.

                      CONCLUSION

    For the foregoing reasons, we REVERSE the district
court’s grant of Roseburg’s motion for summary judgment
and REMAND for further proceedings on the following
claims: (1) hostile work environment, including employer
liability through negligence; (2) disparate treatment with
regard to the breaking of Efrain’s lock and the termination of
Efrain’s employment; (3) retaliation with regard to
Roseburg’s termination of Efrain’s employment; and (4) state
law claims for hostile work environment and disparate
treatment as consistent with the analysis in the federal
context. We AFFIRM the district court’s grant of
Roseburg’s motion for summary judgment on the remaining
issues, as discussed above. Costs shall be taxed against
Roseburg.
        REYNAGA V. ROSEBURG FOREST PRODUCTS                  31

BEA, Circuit Judge, dissenting in part:

    Efrain Reynaga appeals the district court’s grant of
summary judgment in favor of defendant Roseburg Forest
Products (“Roseburg”) for his hostile work environment,
disparate treatment, and retaliation claims in violation of
42 U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1981, and
Oregon state law. The events leading to this lawsuit occurred
when Appellant Reynaga (of Mexican dissent) worked as a
millwright for Roseburg between 2004 and 2010, during
which time he claims to have been subject to racially
disparaging statements and disparate treatment because of his
race by lead millwright Timothy Branaugh. I concur in the
panel majority’s opinion reversing the district court’s grant of
summary judgment for defendant on Reynaga’s retaliatory
termination claim. However, because Roseburg took prompt
and effective action to rectify the hostile work environment
experienced by Reynaga and terminated Reynaga only after
he repeatedly refused to work his assigned shifts, the district
court concluded properly that his hostile work environment
and disparate treatment claims should fail as a matter of law.

                               I.

    Reynaga has the burden of proving that Branaugh’s
conduct was “sufficiently severe or pervasive to alter the
conditions of…[his] employment and create an abusive work
environment.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634,
642 (9th Cir. 2003). Furthermore, Reynaga must establish
that Roseburg is liable for Branaugh’s conduct, either
vicariously or based on negligence. McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1119 (9th Cir. 2004).
32      REYNAGA V. ROSEBURG FOREST PRODUCTS

    The district court concluded that Branaugh’s racist
statements were not sufficiently severe so as to alter the
conditions of Reynaga’s employment. The court also held,
alternatively, that (1) Roseburg was not vicariously liable for
Branaugh’s conduct because Branaugh was not a supervisor,
and that (2) Roseburg was not negligent because it promptly
and effectively remedied Branaugh’s misconduct. I agree
with the panel majority that Roseburg cannot be held liable
for Branaugh’s conduct under a theory of vicarious liability.
But even assuming that Branaugh’s misconduct was
sufficiently severe so as to alter the terms of Reynaga’s
employment, Reynaga has not established that Roseburg
failed promptly and effectively to remedy Branaugh’s
misconduct.

    Roseburg took prompt action to remedy the alleged
misconduct. Reynaga’s son spoke with another Roseburg
employee about Branaugh’s behavior in October 2009, which
led Roseburg to conduct an investigation in which Reynaga
participated. But Appellant filed a written complaint with
Roseburg that specifically identified Branaugh and referred
to “acts of discrimination” and a “hostile work environment”
only in December 2009. Roseburg hired Vigilant within one
week of receiving Reynaga’s written complaint, and a
representative from Vigilant interviewed Reynaga on
December 10, 2009. Vigilant interviewed other employees as
well. During the course of Vigilant’s investigation, Roseburg
altered Branaugh’s work schedule to keep Reynaga and
Branaugh apart as much as possible.

    Roseburg’s intervention was not only prompt, but also
effective. Reynaga does not identify a single derogatory
statement made by Branaugh after Vigilant commenced its
         REYNAGA V. ROSEBURG FOREST PRODUCTS                        33

investigation.1 The fact that Roseburg scheduled Reynaga to
be at the facility on the same day as Branaugh alone would
not allow a reasonable juror to conclude that Roseburg’s
intervention was not effective, such that Roseburg could be
held liable as negligent. Roseburg’s duty was to take
reasonable care in eliminating Reynaga’s exposure to
Branaugh’s hostile, racist statements, not ensure that
Branaugh and Reynaga were never working in the same
facility. Thus, as far as Reynaga’s evidence shows,
Branaugh’s racist statements ceased by the time that the
employer acted on Reynaga’s complaint. Reynaga cannot
raise a triable issue of fact as to whether his workplace was
hostile following Roseburg’s intervention.          As such,
Reynaga’s hostile workplace claim should fail.

                                  II.

    To establish that he suffered disparate treatment in
violation of Title VII and § 1981, Reynaga “may…[use] the
McDonnell Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence demonstrating that
a discriminatory reason more likely than not motivated” the
defendant. Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007). Under the McDonnell Douglas framework, Reynaga
must show that: “(1) [he] belongs to a protected class, (2) [he]
was performing according to [his] employer’s legitimate
expectations, (3) [he] suffered an adverse employment action,

    1
       Reynaga identified only two acts by Branaugh occurring after
December 10, 2009: (1) on Jan. 4, 2010, Branaugh left an email in the
breakroom purporting to quote a book by Lee Iacocca that said “our
borders are like sieves;” and (2) on Jan. 13, 2010, Branaugh revved his
automobile’s engine in Reynaga’s presence. These two acts are not
sufficiently severe so as to alter the terms of Reynaga’s employment.
Vasquez, 349 F.3d at 642.
34      REYNAGA V. ROSEBURG FOREST PRODUCTS

and (4) other employees with qualifications similar to [his]
own were treated more favorably.” Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

    According to Roseburg, it fired Reynaga on January 18,
2010 because Reynaga walked off the job on January 9 and
refused to work his scheduled shift on January 13. It is
undisputed that Reynaga walked off the job on January 9 and
refused to work the January 13 shift. These are legitimate,
non-discriminatory reasons to terminate Reynaga. The panel
majority asserts that Roseburg requiring Reynaga to work on
January 13 at the same time as Branaugh and Roseburg’s
decision not to discipline Branaugh immediately offered
potential evidence of disparate treatment. However, as
mentioned above, Reynaga did not have a right to insist that
Roseburg fire Branaugh or never schedule Branaugh at the
same time that Reynaga was working. Branaugh’s hostile,
racist statements ceased after Vigilant began investigating
Branaugh in December 2009. That Roseburg did not
discipline Branaugh before Vigilant completed its
investigation and Reynaga walked off the job similarly cannot
be construed as evidence of disparate treatment. For these
reasons, Reynaga did not provide direct or circumstantial
evidence to suggest a discriminatory motivation for
termination. He also failed to offer evidence that other
workers had not been terminated when they walked off the
job so as to satisfy the burden shifting framework.
Accordingly, no reasonable jury could find that Roseburg
subjected Reynaga to racially disparate treatment when it
          REYNAGA V. ROSEBURG FOREST PRODUCTS                             35

fired him for refusing to work on January 13. The district
court should thus be affirmed on this point.2

    I respectfully dissent.




    2
     I agree with the panel majority that Reynaga did raise a triable issue
of material fact as to disparate treatment for the lock cutting incident under
the McDonnell-Douglas framework.
