                                                                               FILED
                           NOT FOR PUBLICATION                                 APR 30 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RONALD EL-MALIK CURTIS,                          No. 12-15831

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00358-SI

  v.
                                                 MEMORANDUM*
CITY OF OAKLAND; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                       Argued and Submitted April 11, 2014
                            San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and PRATT, Senior
District Judge.**

       Ronald El-Malik Curtis appeals the district court’s decision granting

summary judgment to the City of Oakland, Jennifer Ray, Joseph G. Torres, John

Farrell, and Gerald A. Simon (the “Defendants”) on his hostile work environment

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.
and retaliation claims.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

reverse.

                                           I

      To survive summary judgment on his hostile work environment claims,

Curtis had to show that he was subjected to unwelcome verbal or physical conduct

because of his race and that the conduct was sufficiently severe or pervasive to

alter the conditions of his employment and create an abusive work environment.

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 & n.3 (9th Cir.

2008). As the district court recognized, much of the abusive conduct was facially-

neutral, there was no known perpetrator for some of the incidents, and much of the

conduct was directed at the Curtis’s shift, generally.

      Nonetheless, there was evidence in the record from which a reasonable jury

could infer that the responsible parties were firefighters of other races and that they

were targeting Curtis’s shift because it was predominantly African-American. See

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (stating

that “facially neutral abusive conduct can support a finding of racial animus

sufficient to sustain a hostile work environment claim when that conduct is viewed



      1
      Curtis does not challenge the district court’s decision granting summary
judgment on his failure to prevent claim.

                                           2
in the context of other, overtly racially-discriminatory conduct.” (alteration and

quotation marks omitted)). Several firefighters made comments that could be

construed as offensive to African-Americans. Other African-American firefighters

joined Curtis’s initial administrative complaint and stated in affidavits that the

abusive conduct at the station was racially-motivated.2 Some also stated that

African-Americans were referred to as “the brothers.” Cf. Johnson, 534 F.3d at

1123 (noting that the use of a “‘code word or phrase’ can, under certain

circumstances, contribute to a hostile work environment.”). Additionally,

Caucasian firefighters were overheard joking about Curtis’s missing keys and a

dead bird found under his bed, implying that they were responsible for the

incidents or otherwise knew who was responsible. Furthermore, although some of

the conduct appeared to be directed at Curtis’s shift, in general—as opposed to

African-Americans, specifically— the circumstances suggest that Curtis’s shift

may have served as a proxy for the animus particularly given that it was

predominantly made up of African-Americans and there were no other African-

Americans on the other shifts during the relevant time period.

      2
        The Defendants submitted evidence casting doubt on the knowledge of
some of these witnesses, however, such factual disputes cannot be resolved on
summary judgment. See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012)
(noting “the principle that the court is not to make credibility determinations when
granting or denying summary judgment”).

                                           3
      Furthermore, tampering with an employee’s food, stealing personal items,

leaving dead animals in an employee’s workspace, placing a clown picture over a

picture of a prominent African-American, demeaning an employee’s work unit,

and repeatedly shunning a group of employees may constitute threatening and

humiliating actions that could unreasonably interfere with an employee’s work

performance. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir.

2004). Accordingly, Curtis established the existence of a genuine dispute of fact as

to whether a reasonable African-American man would find the workplace so

objectively and subjectively racially hostile as to create an abusive working

environment. Id. at 1112.

                                         II

      In order to survive summary judgment on his retaliation claims, Curtis had

to show that he engaged in protected activity which caused adverse employment

actions and that any legitimate reasons offered by the Defendants for the adverse

employment actions were pretextual. Surrell v. Cal. Water Serv. Co., 518 F.3d

1097, 1108 (9th Cir. 2008). Curtis engaged in protected activity by filing

complaints, filing reports, making informal complaints to his supervisors, and

raising his concerns informally in employer-sponsored group mediation and

counseling sessions. Curtis suffered adverse employment actions including

                                         4
allegedly false reports filed by supervisors, a written reprimand, and a suspension.

Some of the protected activities were close enough in time to the adverse

employment actions to establish a prima facie causal link. See Davis v. Team Elec.

Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (indicating that causation could be

inferred based on timing alone despite a gap that exceeded two months between the

protected activity and adverse action). Although the Defendants offered legitimate

reasons for the actions, Curtis also offered competing evidence suggesting that he

was improperly disciplined and that the Defendants failed to follow some of their

own procedures. Consequently, Curtis presented sufficient evidence to create a

genuine dispute of material fact on the retaliation claims.

                                          III

      The Defendants further contend that even if we reverse, we should

nonetheless affirm summary judgment for the individual defendants. The Record,

however, shows that Curtis provided evidence of personal participation in the

alleged rights deprivations sufficient to hold the individual defendants liable. See

Bell v. Clackamas Cnty., 341 F.3d 858, 867 & n.3 (9th Cir. 2003). Accordingly,

we also reverse the summary judgment decision in favor of the individual

defendants on the hostile work environment and retaliation claims.




                                          5
      REVERSED and REMANDED.3




      3
        The Defendants’ motion to dismiss the appeal pursuant to the doctrine of
judicial estoppel is denied.

                                        6
