FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAWANA PORTER,  No. 02-16537

Plaintiff-Appellant, D.C. No.

v. CV-00-00978-FCD 

CALIFORNIA DEPARTMENT OF ORDER AND

CORRECTIONS, AMENDED

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

February 11, 2004—San Francisco, California

Filed September 10, 2004

Amended August 5, 2005

Before: Mary M. Schroeder, Chief Judge,

Richard C. Tallman, and Consuelo M. Callahan,

Circuit Judges.

Opinion by Judge Callahan

10141
COUNSEL

Steven A. Hirsch and Daniel E. Jackson, Keker & Van Nest,

San Francisco, California, for the plaintiff-appellant. 

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10143
Bill Lockyer, Attorney General; Jacob A. Appelsmith, Senior

Assistant Attorney General; Vincent J. Scally Jr., Supervising

Deputy Attorney General; and Diana L. Cuomo, Deputy

Attorney General, Sacramento, California, for the defendantappellee. 

ORDER

The opinion filed September 10, 2004, slip op. at 13197, is

amended as follows:

Slip op. at 13197: 

Delete the semicolon after “Opinion by Judge Callahan” and “Dissent by Judge Tallman” 

Slip op. at 13210: 

Delete Subsection “1.” entitled “Quid Pro Quo

Harassment” 

Slip op. at 13211: 

Delete Subsection “a.” entitled “Porter’s Prima Facie

Case of Quid Pro Quo Harassment”

Slip op. at 13213: 

Delete Subsection “b.” entitled “CDC’s Legitimate

Reason and Porter’s Evidence of Pretext” 

Slip op. at 13215: 

Renumber Subsection “2.” entitled “Hostile Environment” as Subsection “1.” and add the following

introductory paragraph and footnote:

10144 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
Porter’s briefing does not specify whether

she is alleging quid-pro-quo or hostile work

environment sexual harassment. Since the

facts are sufficient to establish a prima facie

case of hostile work environment harassment, however, we leave for another day

the question of whether quid-pro-quo liability attaches when an alleged harasser, who

was not in a position to exact reprisals at

the time his advances were rejected, is subsequently entrusted with and abuses such

authority. n3 

n3 In order to establish a prima facie case

of quid-pro-quo sexual harassment, Porter

must show that Wheeler or DeSantis “explicitly or implicitly conditioned a job, a

job benefit, or the absence of a job detriment, upon [her] acceptance of sexual conduct.” Heyne v. Caruso, 69 F.3d 1475, 1478

(9th Cir. 1995) (internal citation and quotation marks omitted). 

Slip op. at 13222: 

Delete Judge Tallman’s dissent. 

The petition for rehearing is otherwise DENIED. See Fed.

R. App. P. 40. The suggestion for rehearing en banc is

DENIED. See Fed. R. App. P. 35. No further petitions for

rehearing or rehearing en banc will be accepted. The mandate

shall issue forthwith.

OPINION

CALLAHAN, Circuit Judge: 

In May 2000, Lawana Porter filed a complaint pursuant to

Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10145
the California Department of Corrections (“CDC”). Porter

alleged that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection

of sexual advances by correctional officers Terry Wheeler and

Pete DeSantis in 1995 and 1996. 

The district court granted the CDC’s motion for summary

judgment, holding that (1) the temporal gap between the complaints of sexual harassment and the alleged acts of retaliation

precluded Porter from showing a causal link; and (2) the

alleged incidents of sexual harassment could not be considered with the allegations of retaliation for the purpose of stating a viable cause of action. 

On appeal, Porter makes two primary arguments. First, she

argues that the district court erred in holding as a matter of

law that she could not prove her retaliation claim because too

much time elapsed between her reports of harassment and the

CDC’s retaliatory acts. Second, she asserts that the district

court erred in holding as a matter of law that her sexual

harassment claim was barred because “the many hostile acts

directed against her within the limitations period bore no relation to the pervasively hostile working environment on which

she based her claim.” 

We agree with Porter and reverse the district court. We

hold that, although Porter’s claims for harassment in 1995 and

1996 are time-barred, Porter is not precluded from attempting

to show a causal link between the earlier harassment and more

recent alleged acts of discrimination or retaliation. 

I. Background

Porter has been employed as a correctional officer by the

CDC since June 1995. In opposition to the CDC’s motion for

10146 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
summary judgment, she offered sufficient evidence to support

the inferences and allegations detailed below.1

A. Wheeler

Shortly after Porter started working at the CDC, Sergeant

Wheeler began visiting her while she was on duty and asked

her to go out with him. Porter declined, stating that she had

been taught at the academy that subordinates did not date

supervisors. 

A few days later, Wheeler asked Porter to go to Reno with

him and when Porter declined, Wheeler told her to talk to her

“buddy,” Correctional Officer Pat Thompson. At that time,

Porter was living with Thompson and his wife. When Porter

got home, Thompson told her that CDC was getting ready to

“roll-over” part-time employees to full-time, and that he and

Wheeler had made a deal that if Thompson arranged for Porter to go to Reno with Wheeler, Wheeler would make sure

that Thompson was rolled over to full-time employment. 

A couple of days later, when Porter crossed a patio at work,

Wheeler yelled her name and asked her if she had talked to

her “buddy” about the Reno trip. Porter said she had and she

was not going. Wheeler told her she would go to Reno with

him because he “owned her.” When Porter turned away,

Wheeler raised his voice and threatened that “nobody walks

away from me.” 

After this incident, Porter told a sergeant about Wheeler’s

conduct. A lieutenant then asked Porter to submit a written

report, which she did on November 19, 1995. Porter subsequently met with one of the CDC’s equal employment opportunity (“EEO”) counselors, who prepared a written sexual

1On a motion for summary judgment the court examines the evidence

in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). 

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10147
harassment complaint. Lieutenant McDonald was assigned to

conduct an investigation. 

McDonald concluded his investigation at the end of January 1996. He determined that Wheeler had asked Porter out

on dates and spoken to Thompson about his desire to date

Porter. In February 1996, an “Employee Counseling Record”

was placed in Wheeler’s supervisory file for three months.

Wheeler was instructed to “cease any further behavior on the

work site toward [Porter] ‘of a personal nature’ ” and to

attend the next sexual-harassment prevention class. 

Later in 1996 or 1997, when Porter was working under

Wheeler’s supervision, Wheeler began to eat her Chinese

food during a meal break. When Porter complained, Wheeler

spat into the food and handed it back to Porter. Porter perceived this as retaliatory because she had reported him for

sexual harassment. In early January 1998, Wheeler went to

the Office of Personnel Assignments (“OPA”) to prevent Porter from working on the Lassen Yard. At another time, Wheeler told another sergeant in Porter’s presence, “what is that

fucking bitch doing on my yard?” 

B. DeSantis

A week before her scheduled interview with McDonald in

1995, Porter contacted Correctional Officer Pete DeSantis,

president of the local chapter of the California Correctional

Peace Officer Association (“CCPOA”), and asked him to represent her. A couple of days after the interview, DeSantis telephoned Porter at home in the late evening and inquired if she

was feeling better. Porter stated that she would feel better if

the investigation was over. DeSantis responded that he could

make her feel better. He told her that he “could make her

crawl all over her bed with his tongue.” 

A couple of days later, in another phone call, DeSantis

again asked Porter if she was feeling better. When she replied

10148 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
that she was not, DeSantis reminded her of how he could

make her feel better. Porter unsuccessfully attempted to steer

the conversation back to the investigation and then told

DeSantis that she had to get off the phone. 

A few days, later DeSantis called Porter at home to tell her

about the CDC’s Winter Dance Festival. He told her she

should attend and stated that she would be safe because his

wife would be there. The following day DeSantis called Porter and asked if she wanted to go to Reno with him to pick

up union supplies. Porter told him she was not interested. Porter did go to the Winter Dance. While there, DeSantis

motioned to her to come up to him and, pointing out his wife,

indicated that Porter was safe because his wife was there. 

Shortly thereafter, DeSantis called Porter at home and

asked her to go with him to a union convention in Sacramento. He said they would get two rooms, but stay together

until his wife got there. He asked Porter to bring a purple negligee. Porter said she was not interested. In a subsequent telephone conversation she agreed to go, but in a later

conversation “she became angry with DeSantis and changed

her mind.” Porter called DeSantis an “asshole,” and told him

what he was doing was wrong. When she asked what would

happen if she told his wife, DeSantis responded that he had

already told his wife that Porter was a “whore.” Thereafter,

DeSantis ceased calling. 

These conversations occurred between November 1995 and

February 1996. Porter did not complain to the CDC about

DeSantis nor did she request new union representation. Porter

alleges that she told Lieutenant McDonald, during his investigation of Wheeler, about DeSantis’ comments at the Winter

Dance and his invitation to go to Reno. 

C. Reprisals

DeSantis became a sergeant in February 1996. Porter

alleges that in July 1996, DeSantis told correctional officer

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10149
Scott Porter, Porter’s then boyfriend and now husband, that he

better “watch out,” that Porter was a “whore” and would sleep

with anyone. 

In August 1997, shortly after Porter finished her apprenticeship program, she called OPA seeking to be assigned a

post other than a first watch post.2 DeSantis told her that there

were no jobs available. Porter checked the master list and saw

that other watches were available. She again called OPA and

talked to Officer Leitaker, who worked under DeSantis. Porter

heard “DeSantis tell Leitaker that there were currently no jobs

open, for her.” (Emphasis in district court’s decision.) 

In January 1998, Porter was assigned to a second watch

job, and at around the same time, DeSantis became the Personnel Assignment Sergeant in OPA. Porter went to OPA five

or six times in 1998 and verbally requested vacations and holidays. Each time she asked DeSantis if there were any open

holidays, he told her, in front of Officer Leitaker, “not for

you.” 

Porter also sought three different transfers in 1998. In May,

Porter requested a transfer to post R0227, even though Wheeler was the supervising officer for part of the post. Porter did

not receive the assignment, and she alleges that DeSantis

denied her the post and gave it to Pat Thompson. In June

1998, Lieutenant Anglea asked Porter if she was interested in

post R0245. According to Porter, Wheeler, who was the

supervisor for part of the post, went to DeSantis and told him

that he did not want Porter. DeSantis did not give the post to

Porter. 

That same month, Sergeant Knigge asked Porter if she

wanted to transfer to R0222. Porter expressed interest, so

Knigge filled out an assignment-change request, and in July

1998, Lieutenants Orr and Anglea signed off on the assign2The first watch is from 10:00 p.m. to 6:00 a.m. 

10150 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
ment change. DeSantis cancelled the transfer. Porter contends

that Orr and Leitaker were surprised by DeSantis’ actions and

considered the cancellation suspicious. The CDC, however,

presented evidence that another sergeant had contacted

DeSantis and complained that his unit was assigned a disproportionate number of apprentices compared to other units.

The CDC represented that DeSantis reviewed the distribution,

determined it was disproportionate, and remedied the problem

by utilizing post R0222 as an apprentice position. 

In September, after DeSantis cancelled Porter’s transfer to

post R0222, Lieutenant Anglea asked Porter, “What did you

do to piss DeSantis off?” When Porter told Anglea about

DeSantis’ prior actions, Anglea filed a complaint and reported

the matter to Margene Ford, the Associate Warden, and to the

CDC’s EEO Coordinator, without asking Porter if she desired

such recourse. Subsequently, the warden decided that an EEO

investigation was required. 

Between September and November 1998, Porter met several times with Ford. Porter asked Ford not to have anyone

local investigate the complaint and Ford agreed. Nonetheless,

Porter received an interview memorandum stating that a Sacramento office of the CDC had appointed a local officer to

interview Porter. When Porter called the CDC’s EEO office

in Sacramento, the office said that it knew nothing about the

appointment. Porter was called for a meeting with Ford. Ford

was angry and yelled at Porter for going “over her head” to

Sacramento. Ford told Porter that things were going to get

rougher; she asked Porter, “what the hell’s wrong with you?”

Ford said, “I’m telling you, you can trust me and you’re looking at me like I’m a liar.” 

The Discrimination Complaint Unit of the CDC asked Porter to prepare a handwritten report of her complaint, which

she did on October 15, 1998. Porter also filed a formal complaint for retaliation and sexual harassment. On one occasion

during the investigation, DeSantis stood with his arms

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10151
crossed, and stared at plaintiff for almost five minutes. The

investigation ended in February 1999 with a determination

that Porter’s factual allegations were not sustained. 

Porter filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) on April 21, 1999, and

filed her civil action on May 3, 2000. 

Meanwhile, Porter was off work on medical leave from

November 6, 1998, to September 5, 2000. In December 1998,

the union president called Porter at home and told her that she

was not to come on the grounds of the CDC because she was

a liability. In January 1999, Porter received a memo from the

CDC stating that she had failed to get her annual tuberculosis

test and warning that if she did not get one, she would be subject to disciplinary action up to and including termination.

Porter was told by the Return to Work Coordinator at the

CDC that she would have to go to her personal physician

because she was not allowed on the grounds. 

In addition, while still on medical leave, Porter continued

to receive notices of job changes and calls at home that she

was absent without leave. She received a memo stating that

she had failed to take a mandatory Use of Force Class and

was subject to disciplinary action up to and including termination. She also discovered that a negative performance evaluation that was supposed to have been removed from her file

was still in her file. 

Once she returned to work, Porter was told she should use

the back gate “so that she would have limited contact with

correctional staff.” When she called the watch office to check

in at the back gate, the office would hang up on her or insult

her. In January 2001, when Porter was working at an entrance

at which she was required to check all identification cards

before allowing anyone to enter, a number of officers refused

to present their identification cards and began yelling and

10152 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
kicking the doors, banging the windows, and yelling obscenities and personal insults. 

II. The District Court’s Decision

The district court found that pursuant to 42 U.S.C. § 2000e5(e)(1) Porter was required to file an employment discrimination charge with the EEOC within 300 days after the “alleged

unlawful employment practice occurred.” The court concluded that because Porter filed her complaint with the EEOC

on April 21, 1999, her claims were barred if based on acts that

occurred prior to June 26, 1998. 

Reviewing the Supreme Court’s then recent opinion in

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101

(2002), the district court granted the CDC’s motion for summary judgment, holding that (a) Porter’s allegations based on

a sexually hostile work environment in 1995 and 1996 were

barred by her failure to file a claim within 300 days of any

one of the acts; (b) the more recent allegations of harassment

or retaliation were different in nature than the earlier allegations of sexual harassment and, therefore, could not be part of

a continuing violation; and (c) pursuant to Clark County

School District v. Breeden, 532 U.S. 268 (2001), the passage

of time barred Porter from showing a causal link between protected activity and adverse employment action. Alternatively,

the district court also found that Porter had not presented evidence indicating that the CDC’s reasons for executing the

adverse employment actions were merely pretexts for retaliation.

III. Standard of Review

Summary judgment is proper if the materials before the district court “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56 (c); Celotex Corp. v.

Catrett, 477 U.S. 321, 322 (1986). 

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10153
In considering a motion for summary judgment, the court

must examine all the evidence in the light most favorable to

the non-moving party. United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). At the summary judgment stage, the court

does not make credibility determinations or weigh conflicting

evidence. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n., 809 F.2d 626, 630-31 (9th Cir. 1987). However, once

the moving party meets the requirements of Rule 56 by showing there is an absence of evidence to support the non-moving

party’s case, the burden shifts to the party resisting the

motion, who “must set forth specific facts showing that there

is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986). 

We review the district court’s order granting summary

judgment de novo, drawing “all reasonable inferences supported by the evidence in favor of the non-moving party.” Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1061 (9th

Cir. 2002). “In reviewing an order denying or granting summary judgment, we must determine, viewing the evidence in

the light most favorable to the nonmoving party, whether

there are any genuine issues of material fact and whether the

district court correctly applied the substantive law.” Ray v.

Henderson, 217 F.3d 1234, 1239-40 (9th Cir. 2000). 

IV. Discussion

A. Sexual Harassment

In Morgan, the Supreme Court held that an employee such

as Porter, who initially files a charge of discrimination with

a state agency in a state like California, must file a charge

with the EEOC within 300 days of the alleged unlawful

employment practice in order to preserve the claim for a subsequent civil action under 42 U.S.C. § 2000e-5(e)(1). 536

U.S. at 109. The Court explained:

[D]iscrete discriminatory acts are not actionable if

time barred, even when they are related to acts

10154 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges

alleging that act. The charge, therefore, must be filed

within the . . . 300-day time period after the discrete

discriminatory act occurred. The existence of past

acts and the employee’s prior knowledge of their

occurrence, however, does not bar employees from

filing charges about related discrete acts so long as

the acts are independently discriminatory and

charges addressing those acts are themselves timely

filed. Nor does the statute bar an employee from

using the prior acts as background evidence in support of a timely claim. 

Id. at 113. 

Thus, the district court correctly determined that any claim

that Porter sought to assert for a discrete discriminatory act

that occurred before June 26, 1998, was not actionable. Nonetheless, the district court failed to appreciate evidence indicating that at least one discrete act had occurred within the 300-

day time frame; in particular, DeSantis’ decision to deny Porter’s request to transfer to the R0222 position. See id. at 114

(listing the “denial of transfer” as one example of a discrete

act). 

1. Hostile Environment

Porter’s briefing does not specify whether she is alleging

quid-pro-quo or hostile work environment sexual harassment.

Since the facts are sufficient to establish a prima facie case of

hostile work environment harassment, however, we leave for

another day the question of whether quid-pro-quo liability

attaches when an alleged harasser, who was not in a position

to exact reprisals at the time his advances were rejected, is

subsequently entrusted with and abuses such authority.3

3

In order to establish a prima facie case of quid-pro-quo sexual harassment, Porter must show that Wheeler or DeSantis “explicitly or implicitly

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10155
We now turn to Porter’s hostile-environment claim and the

question of whether it is time barred. In order for this claim

to survive summary judgment, Porter must show that: (1) she

was subjected to verbal or physical conduct of a sexual

nature; (2) the conduct was unwelcome; and (3) the conduct

was sufficiently severe or pervasive to alter the conditions of

her employment and create an abusive work environment. See

Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.

2004). The district court did not analyze whether Porter had

submitted evidence to create a genuine issue of material fact

as to these elements, but found that the claim was time barred.

[1] In Brooks v. City of San Mateo, we suggested that a

hostile environment may result from a single instance of sexual harassment if the harassing conduct is sufficiently severe.

229 F.3d 917, 925-27 (9th Cir. 2000). With the exception of

sexual assault, few types of harassing conduct are more

extreme than thrusting explicit sexual propositions toward an

employee and then executing reprisals against her for resisting

the advances. 

Given that, it would be tempting to conclude that all the

offensive activities that Porter allegedly encountered between

1995 and 2001 are both timely and actionable as different

“part[s] of the same unlawful employment practice.” Morgan,

536 U.S. at 122. But we believe that such an approach would

blur to the point of oblivion the dichotomy between discrete

acts and a hostile environment. See id. at 114-15. 

[2] As the Supreme Court emphasized, “discrete discriminatory acts are not actionable if time barred, even when they

are related to acts alleged in timely filed charges.” Id. at 113;

see also Cherosky v. Henderson, 330 F.3d 1243, 1245-47 (9th

conditioned a job, a job benefit, or the absence of a job detriment, upon

[her] acceptance of sexual conduct.” Heyne v. Caruso, 69 F.3d 1475, 1478

(9th Cir. 1995) (internal citation and quotation marks omitted). 

10156 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
Cir. 2003) (declining to treat a series of related employment

decisions as a pattern or practice, but finding that each decision was a discrete act). Consequently, we refuse to mix

recent discrete acts like tinder with the planks of ancient sexual advances and then, regardless of whatever it was that set

the spark in the furnace, call the fire that ignites therefrom a

hostile environment. If the flames of an allegedly hostile environment are to rise to the level of an actionable claim, they

must do so based on the fuel of timely non-discrete acts.4

[3] When the ashes are sifted, the bulk of the conduct attributed by Porter to the CDC and its agents falls into the category of discrete acts; for instance, refusing to grant Porter’s

requests for vacation or holidays, requiring Porter to be tested

for tuberculosis by her own physician, threatening disciplinary action while she was on medical leave, leaving a negative

performance evaluation in her personnel file, and instructing

her to enter the work site through the back gate. That leaves

the following allegations of non-discrete acts: Wheeler and

DeSantis sexually propositioned Porter and made offensive

comments to her or about her in 1995 and 1996; Wheeler ate

and then spat in Porter’s food in 1996 or 1997; Wheeler

referred to her as a “fucking bitch” when she showed up on

his yard in 1998; DeSantis told another correctional officer

that Porter was a “whore” in 1996 and glared at her during the

investigation that commenced in October 1998; Ford made

angry remarks to her in 1998; and unnamed officers began

yelling insults and obscenities at her when she demanded to

see their identification in 2001. 

Obviously, some of these alleged events occurred after

June 26, 1998. Thus, to determine whether all of these events

constitute “one unlawful employment practice,” Morgan, 536

4Of course, discrete acts still may be considered for purposes of placing

non-discrete acts in the proper context. See Morgan, 536 U.S. at 113 (“Nor

does the statute bar an employee from using the prior acts as background

evidence in support of a timely claim.”) (emphasis added). 

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10157
U.S. at 118, we consider whether they were “sufficiently

severe or pervasive,” and whether the earlier and later events

amounted to “the same type of employment actions, occurred

relatively frequently, [or] were perpetrated by the same managers.” Id. at 116, 120 (citations and internal quotation marks

omitted). 

Analyzing the more recent allegations first, there is nothing

to suggest that Ford’s statements or the insults hurled by

unnamed officers were sexually charged, or that these statements would not have been directed toward Porter if she was

a man. See Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998) (confirming that Title VII is not “a general

civility code for the American workplace”). Likewise, there is

no evidence linking these comments and contumelies to the

actions of Wheeler or DeSantis. Thus, the messages dispatched to Porter by Ford and the unnamed officers are not

connected to the same hostile-environment practice as the

conduct ascribed to Wheeler and DeSantis. Moreover, standing by themselves, these statements are not sufficiently severe

or pervasive to support a hostile-environment claim. 

The remaining allegations all concern behavior on the part

of Wheeler and DeSantis, some of which occurred after June

26, 1998. In particular, DeSantis glared at Porter in an intimidating fashion sometime after October 1998, and Wheeler

referred to her in derogatory terms at some unspecified point

that same year. While the record does not suggest that DeSantis and Wheeler harassed Porter frequently after 1997, it does

indicate that their behavior at pertinent points between 1995

and 1998 involved the same type of sexist activity; to wit,

intimidating or demeaning the value of female employees

who do not submit to demands for sexual favors. 

Of course, the conduct in which Wheeler and DeSantis

allegedly engaged became less severe, humiliating and pervasive in 1997 and 1998 than it had been in 1995 and 1996.

Nonetheless, the Supreme Court’s holding in Morgan does

10158 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
not call for the most egregious of the harassing events to

occur within the 300-day period, nor does it demand that the

harassing conduct continue to escalate over time in order for

a hostile-environment claim to be actionable. 536 U.S. at 117.

[4] Viewed from this perspective, and in the light most

favorable to Porter, the record contains sufficient evidence to

permit an inference that Wheeler and DeSantis had created a

sexually hostile environment that persisted beyond June 26,

1998. Much of their alleged verbal and physical conduct was

of an unwelcome sexual nature and, when taken together as

a whole, it was sufficiently severe and pervasive to create an

abusive work environment. Therefore, we hold that Porter’s

hostile-environment claim is not time barred and remand to

the district court for further proceedings consistent with this

opinion. In so doing, we express no opinion as to whether the

CDC may avail itself of the affirmative defense outlined by

the Supreme Court in Faragher, 524 U.S. at 807-08. 

B. Retaliation 

In order to establish a prima facie case of retaliation, Porter

must demonstrate that (1) she had engaged in protected activity; (2) she was thereafter subjected by her employer to an

adverse employment action; and (3) a causal link existed

between the protected activity and the adverse employment

action. See Ray, 217 F.3d at 1240. If Porter provides sufficient

evidence to show a prima facie case of retaliation, the burden

then shifts to the CDC to articulate a legitimate, nonretaliatory reason for its actions. See id. If the CDC sets forth

such a reason, Porter bears the ultimate burden of submitting

evidence indicating that the CDC’s proffered reason is merely

a pretext for a retaliatory motive. See id. 

1. Porter’s Prima Facie Case of Retaliation

The district court found that Porter’s evidence was sufficient to create a genuine issue of material fact as to the first

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10159
two prongs of the prima facie case. However, the court concluded, citing Breeden, that Porter could not show a causal

link between the protected activity and the post change denials because of the temporal gap between these events. This

determination misinterprets Breeden. 

The plaintiff in Breeden claimed her transfer was in retaliation for her complaint about a comment her male supervisor

made when reviewing job applications, and for her filing a

complaint with the EEOC. 532 U.S. at 273. The Supreme

Court questioned the merits of the plaintiff’s underlying complaint5

 and stated that there was no indication that the assistant

superintendent knew about the right-to-sue letter when she

proposed transferring plaintiff. Id. The Court continued: 

[I]f one presumes she knew about it, one must also

presume that she (or her predecessor) knew almost

two years earlier about the protected action (filing of

the EEOC complaint) that the letter supposedly disclosed. . . . The cases that accept mere temporal

proximity between an employer’s knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima

facie case uniformly hold that the temporal proximity must be very close. Action taken (as here) 20

months later suggests, by itself, no causality at all. 

Id. at 273-74 (emphasis in original, internal quotation marks

and citations omitted).

[5] Breeden cannot be read as holding that causality is

dependent, as a matter of law, on temporal proximity.

Although a lack of temporal proximity may make it more difficult to show causation, “circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can also

5

“No reasonable person could have believed that the single incident

recounted above violated Title VII’s standard.” 532 U.S. at 271. 

10160 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
give rise to the inference.” Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 177 (3rd Cir. 1997) (citation omitted). The

Third Circuit explained:

It is important to emphasize that it is causation,

not temporal proximity itself, that is an element of

plaintiff’s prima facie case, and temporal proximity

merely provides an evidentiary basis from which an

inference can be drawn. The element of causation,

which necessarily involves an inquiry into the

motives of an employer, is highly context-specific.

When there may be valid reasons why the adverse

employment action was not taken immediately, the

absence of immediacy between the cause and effect

does not disprove causation. 

Id. at 178. 

Our cases are consistent with this approach. In Coszalter v.

City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003), we cautioned that a “specified time period cannot be a mechanically

applied criterion. A rule that any period over a certain time is

per se too long (or, conversely, a rule that any period under

a certain time is per se short enough) would be unrealistically

simplistic.” In Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1287 n.10 (9th Cir. 2001), the

majority rejected the dissent’s argument that Breeden precluded the inferences drawn by the jury below. 

As a valid reason for the delay between her alleged protected activities and the claimed adverse actions, Porter points

out that DeSantis was not in a position to retaliate until after

he became the Personnel Assignment Sergeant in the OPA.

This position finds support in both controlling and persuasive

authorities. See Keyser, 265 F.3d at 752 n.4; Kachmar, 109

F.3d at 178. Moreover, Porter does not rely on “mere temporal proximity,” Breeden, 532 U.S. at 273, but offers other evidence to support the inference of a retaliatory motive. 

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10161
[6] For instance, the “not for you” sneers of DeSantis imply

that Porter’s shift, post or vacation requests might have been

granted if they were from any employee except Porter. Moreover, as noted above, Porter’s evidence permits an inference

that DeSantis and Wheeler conditioned the terms and conditions of her employment, at least impliedly, on her submission

to sexual conduct — which includes the connoted threat that

the terms and privileges of her employment would be unfavorable if she spoke out against their propositions or otherwise refused them. Wheeler eating Porter’s food without

permission, and then spitting in what was left of it, and

DeSantis’s intimidating glare, are crude displays of each

supervisor’s willingness to carry through on the thinly-veiled

deterrents. We therefore conclude that Breeden does not foreclose the inference of a causal link in this case, and hold that

Porter’s evidence established genuine issues of material fact

to support her prima facie case of retaliation.6

2. Porter’s Evidence of Pretext

The district court further surmised that the CDC had

offered a legitimate reason for denying Porter’s transfer

requests, and that Porter had failed to present evidence showing that the explanation was pretextual. Thus, the district

court determined that the CDC was still entitled to summary

adjudication of the retaliation claim even if Porter’s evidence

had established a prima facie case. We do not agree. 

[7] Just as DeSantis’s deviations from the CDC’s protocol

support an inference of pretext for purposes of Porter’s quid

pro quo claim, so too do these irregularities in the process permit an inference of pretext with regard to the retaliation claim.

To conclude otherwise would be anomalous. Therefore, we

reverse the district court’s summary adjudication of this

claim, and remand for further proceedings. 

6On remand, the CDC may cite the passage of time as evidence of a

lack of causation, but it will be for the trier of fact to make the ultimate

determination. 

10162 PORTER v. CALIFORNIA DEP’T OF CORRECTIONS
V. Conclusion

Porter’s allegations contend that she has been the victim of

sexual harassment and retaliation almost from the day she

accepted employment with the CDC. When she filed a complaint with the EEOC in 1999, her claims for sexual harassment in 1995 and 1996 were time barred. We hold, however,

that she submitted sufficient evidence to establish genuine

issues of material fact as to whether she had been subjected

to sexually harassing conduct that continued into the limitations period, and whether the timely adverse employment

actions that she allegedly suffered were reprisals for her protected activities. 

REVERSED AND REMANDED.

PORTER v. CALIFORNIA DEP’T OF CORRECTIONS 10163