                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JAMES E. FARRENS,                               No.    18-56024

                Plaintiff-Appellant,            D.C. No.
                                                8:14-cv-00407-CJC-RNB
 v.

MARK T. ESPER, Secretary of Defense,            MEMORANDUM*

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                     Argued and Submitted December 9, 2019
                              Pasadena, California

Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge.

      James Farrens appeals the district court’s summary judgment order dismissing

his disparate treatment, hostile work environment, and retaliation claims. Farrens,

who served as an Information Systems Security Professional for the Defense

Security Service, alleges that Field Office Chief Debra Habel discriminated against


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
him because of his Japanese descent. We review de novo a grant of summary

judgment. See Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th

Cir. 2017). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and

reverse and remand in part.

    1.       The parties do not dispute that Farrens had to bring an administrative

claim within 45 days of the acts that he contends violated Title VII. 29 C.F.R.

§ 1614.105(a)(1). Farrens contacted an Equal Employment Opportunity (EEO)

counselor on February 28, 2011, so he may bring claims based only on conduct

occurring on January 14, 2011 or later. Farrens argues that the Secretary waived this

timeliness argument because the final agency decision did not address timeliness,

but this argument is foreclosed by our ruling in Boyd v. U.S. Postal Service, 752 F.2d

410, 414 (9th Cir. 1985) (“The mere receipt and investigation of a complaint does

not waive objection to a complainant’s failure to comply with the original filing time

limit when the later investigation does not result in an administrative finding of

discrimination.”). Conduct predating January 14, 2011, however, may nevertheless

be used as evidence to support a timely claim. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002).

    2.       We first turn to Farrens’s disparate treatment claim. The only conduct

within the statutory period that can support a disparate treatment claim is Farrens’s




                                          2
reassignment from facility inspections in Hawaii.1 The district court erred in

concluding that there was insufficient evidence to support this claim.

      First, the district court improperly weighed the evidence in finding that Habel

did not have a role in Farrens’s reassignment. Drawing all inferences in Farrens’s

favor, a reasonable jury could find that Habel in fact had a role in Farrens’s

reassignment. For example, multiple witnesses testified that Habel was involved in

the reassignment of Farrens.

      Second, the district court erred in finding that Farrens failed to provide

sufficient evidence that the government’s proffered non-discriminatory reasons for

the reassignment were mere pretext. Two types of evidence can support a finding

of discriminatory intent: direct evidence and circumstantial evidence.         Direct

evidence is evidence that proves discriminatory animus without inference or

presumption. Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1095 (9th Cir.

2005). Only “very little” direct evidence is needed to maintain a claim. Lindahl v.

Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). Circumstantial evidence, on the

other hand, is evidence that requires an inference to demonstrate discrimination and




      1
             The Secretary contends that the reassignment is not an “adverse
employment action,” but Farrens has provided enough proof at this stage to show
that the reassignment “materially affect[s] the . . . privileges of . . . employment.”
Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quoting Chuang v.
Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000)).

                                          3
must be “specific and substantial” to allow a claim to survive summary judgment.

Coghlan, 413 F.3d at 1095.

      Here, there is nothing ambiguous about Habel’s conduct. Taking the

witnesses’ testimony as true, Habel said that “Asians could not be trusted even if

they were naturalized citizens because they were still loyal to their country and their

culture was different,” and that a facility security officer could not be trusted

“because she is Chinese.” These remarks are not ambiguous or isolated “stray

remarks.” See Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438–39 (9th Cir.

1990). Moreover, the record could support a finding that Habel engaged in conduct

beyond just remarks: witnesses testified that she grew agitated when she saw Asian-

American employees working near a security container at a facility and that she held

up security clearances for a contractor whose director was Chinese. This is direct

evidence of discriminatory intent, and it is enough to create a triable issue as to

whether there was a discriminatory motivation behind Farrens’s reassignment.

     3.      The district court properly dismissed Farrens’s hostile work

environment claim. To prevail on a hostile work environment claim, Farrens needs

to show “that he was subjected to verbal or physical conduct of a racial . . . nature.”

Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686 (9th Cir. 2017) (internal

quotation marks omitted). This conduct must be sufficiently offensive. See Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In addition, for this claim to be timely,


                                           4
Farrens needs at least one offensive act to fall within the statutory time period (i.e.,

after January 14, 2011). See Nat’l R.R., 536 U.S. at 122. Farrens does not point to

any offensive actions during the statutory period, however, so this claim is untimely.2

     4.      The district court also properly dismissed Farrens’s retaliation claim.

Though Farrens argues that he was removed from inspections after he reached out

to the EEO, he fails to provide evidence that this happened.

      We therefore AFFIRM the entry of summary judgment as to Farrens’s hostile

work environment and retaliation claims, but REVERSE AND REMAND as to his

disparate treatment claim. Each side shall bear its own costs with respect to this

appeal.




      2
              The dissent argues that Farrens presented sufficient evidence to support
his hostile work environment claim. But in the cases cited by the dissent, the conduct
was significantly more offensive, and the evidence there suggested that the offensive
conduct was motivated by membership in a protected class. See, e.g., Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir. 2008) (fellow doctor
“uttered a racial epithet” at African-American plaintiff, and nurse’s “frequent
requests that [the plaintiff doctor] perform the tasks of a maintenance man” can be
construed on a motion to dismiss as being racially motivated); Draper v. Coeur
Rochester, Inc., 147 F.3d 1104, 1105–09 (9th Cir. 1998) (supervisor’s snide laughter
to allegations of harassment could have been considered a hostile act in light of
supervisor’s prior conduct, which included telling her “his desire to have sex” with
her and stating that “it would be fun to get into [her] pants”). Here, the conduct
either is not offensive (e.g., job reassignment) or cannot reasonably be inferred as
racially motivated (e.g., mockery of bathroom request).

                                           5
                                                                          FILED
Farrens v. Esper, No. 18-56024                                            MAR 18 2020
KENNELLY, District Judge, dissenting in part:                          MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

      I join the majority’s decision except with respect to Part 3, from which I

respectfully dissent. Because the evidence supports a reasonable inference that

Farrens’s supervisors engaged in offensive conduct within the statutory period that

was “based on” his race, I would reverse and remand the grant of summary judgment

on the hostile work environment claim.

      Farrens provided evidence that the following occurred in the period after

January 14, 2011: (1) he was reassigned from the Hawaii postings; (2) a supervisor

refused to speak to him about his discrimination claims; (3) and another ridiculed

his request to use the bathroom, suggesting that he “get his bladder checked.” The

majority concludes that such conduct cannot support a hostile work environment

claim, because it was not “conduct of a racial . . . nature.” See Reynaga v. Roseburg

Forest Prods., 847 F.3d 687, 686 (9th Cir. 2017). But conduct that is “based on

race” or “because of race” can provide the basis for a hostile work environment claim

even if the conduct itself is not of a racial nature. See, e.g., Surrell v. California

Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (“based on race”); Manatt v.

Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (“because of” race). For

example, in Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116 (9th Cir.

2008), this court held that a nurse’s frequent requests that an African American

doctor “perform the tasks of a maintenance man” was discriminatory conduct that
could support a hostile work environment claim.          Id. at 1123.     The nurse’s

maintenance requests were not of a racial nature—at least not directly—but rather

were directed to the doctor because of his race. A reasonable juror could similarly

find that the Hawaii reassignment, mockery of Farrens’s bathroom request, and

refusal to discuss his discrimination complaint were adverse treatment “because of”

his race. See Manatt, 339 F.3d at 798; see also Draper v. Coeur Rochester, Inc., 147

F.3d 1104, 1106, 1109 (9th Cir. 1998) (holding that supervisor’s snide laughter and

refusal to discuss plaintiff’s discrimination complaints was conduct that could

support a hostile work environment claim).

      For his hostile work environment claim to survive summary judgment,

Farrens also had to provide sufficient evidence for a reasonable juror to conclude

that the discriminatory conduct, taken as a whole, was severe and pervasive. See

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Farrens met this burden by

raising a triable issue of a continuing violation. Most hostile work environment

claims are based on continuing violations—a series of closely related actions that

may not be individually significant but have a cumulatively discriminatory effect.

See Draper, 147 F.3d at 1108. Actions are closely related if they are “similar

occurrences that took place within the same general time and stemmed from the same

source.” Id. A plaintiff can rely on a continuing violation to support his hostile work




                                          2
environment claim if he can show that at least one closely related act occurred within

the limitations period. Id.

      Farrens has presented sufficient evidence that Habel’s mistreatment was a

continuing violation that persisted into the limitations period, when Habel facilitated

Farrens’s reassignment from the Hawaii inspections. The evidence suggests that the

following series of related acts occurred prior to the Hawaii reassignment: between

April 2010 and January 2011, Habel increased Farrens’s workload, ordered

Farrens’s colleagues to review his work to see if he “was being honest,” reassigned

his inspections to others after he had already begun work on them, assigned him to

less prestigious inspections than those assigned to his colleagues, and criticized his

work in front of others at weekly staff meetings.              Additionally, Habel’s

discriminatory remarks, such as her statement that “Asians could not be trusted,”

support a reasonable inference that she mistreated Farrens because of his race. See

Johnson, 534 F.3d at 1123 (holding that allegations of a hiring committee’s racist

comments directed toward individuals other than the plaintiff supported his hostile

work environment claim). Thus, a reasonable juror could conclude that Habel’s

conduct had a cumulatively discriminatory effect and created a hostile work

environment for Farrens. See Draper, 147 F.3d at 1108.

      For these reasons, in my view, the evidence was sufficient to proceed to trial

on Farrens’s hostile work environment claim.

                                          3
