Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment. 42 U.S.C. § 2000e-2(a)(1); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To succeed on his Title VII claim for hostile work environment, Fried was required to establish that: (1) he was subjected to a hostile work environment; and (2) Wynn was liable for the harassment that caused the hostile environment to exist. See Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006). Because the district court granted summary judgment to Wynn based solely on the first prong of the claim, we limit our review to whether Fried was subjected to a hostile work environment. To establish he was subjected to a hostile work environment, Fried was required to prove that: (1) he 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 employment and create an abusive working environment. See Little, 301 F.3d at 966.

The Supreme Court has held an employer is liable pursuant to Title VII only for "its own" acts, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Faragher v. City of Boca Raton , 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), but it is well established that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker's or third party's sexual harassment or racial discrimination the employer knew or should have known about. All federal circuits are in accord on this point. See, e.g., Howard v. Cook Cnty. Sheriff's Off., 989 F.3d 587, 607 (7th Cir. 2021); Roy v. Correct Care Sols., LLC, 914 F.3d 52, 57 (1st Cir. 2019); Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 273–74 (2d Cir. 2016); Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012); Malone v. Ameren UE, 646 F.3d 512, 517 (8th Cir. 2011); Beckford v. Dep't of Corr., 605 F.3d 951, 957–58 (11th Cir. 2010); Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Tademy v. Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008); Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999) (per curiam); Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999); Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997); see also 29 C.F.R. § 1604.11(e) (providing that employers may be liable for sexual harassment perpetrated by nonemployees "in the workplace, where the employer ... knows or should have known of the conduct and

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fails to take immediate and appropriate corrective action").

To determine whether an environment is sufficiently hostile or abusive to violate Tile VII, we consider "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020) (internal quotation marks omitted) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)). "Not every insult or harassing comment will constitute a hostile work environment." Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000). The standard for judging hostility is meant to "ensure that Title VII does not become a ‘general civility code.’ " Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)).

The Supreme Court has explained that, properly applied, this standard "will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. (internal quotation marks omitted) (quoting B. LINDEMANN & D. KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW 175 (1992)). A hostile work environment "must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Id. at 787, 118 S.Ct. 2275.

A single incident of harassment "can support a claim of hostile work environment because the frequency of the discriminatory conduct is only one factor in the analysis," Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th Cir. 2002) (internal quotation marks omitted), but for a single incident to suffice, it "must be extremely severe," Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000); see also Little, 301 F.3d at 967 (collecting cases). When severity is questionable, "it is more appropriate to leave the assessment to the fact-finder than for the court to decide the case on summary judgment." Davis, 520 F.3d at 1096.

Fried first argues that Barajas created a hostile work environment by commenting that he should consider finding a job in which the clientele is not mostly female.³ Fried alleges that Barajas told him on one occasion he was "in a female job related environment," suggested he "look for other employment in cooking in the future," and said he "might want to do something with cooking for work." Fried also argues his coworkers created a hostile work environment by remarking that he and another male manicurist should wear wigs if they wanted to get more clients or make more money at the salon. Fried identified only two specific occasions, about a month apart, on which his coworkers made these comments. The district court ruled these statements were insufficiently severe or pervasive to support a hostile work environment claim. We agree with the district court.

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The required severity for "harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Id. (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Because Fried testified that Barajas made her comments on one occasion and his coworkers suggested on two occasions that he should wear a wig to look like a woman, the comments would have to be proportionately more severe to make up for their relative infrequency. See id. The comments here fall far short of that mark. Indeed, we have deemed much harsher comments and actions insufficient to create a hostile work environment.

In Kortan v. California Youth Authority , 217 F.3d 1104 (9th Cir. 2000), a female employee brought a hostile work environment claim based on her supervisor's misogynistic comments. Id. at 1106–08. The supervisor referred to an employee as a "regina" and said that the employee "laughs like a hyena." Id. at 1107. The same supervisor referred to another employee as a "madonna," a "regina," and a "castrating bitch," and to women generally as "bitches" and "histrionics." Id. We held that these crass and denigrating comments were not severe enough to create a hostile work environment, in part because the comments were concentrated on one occasion. See id. at 1110–11.

Almost three years later, in Manatt v. Bank of America, NA , 339 F.3d 792 (9th Cir. 2003), we considered a female Chinese-American employee's hostile work environment claim based on coworkers' patently offensive racial comments and acts. Id. at 794–95. On one occasion, Manatt overheard her coworkers laughing and saying "China Man" and saw them pulling "their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians." Id. at 795. On a different day, one of Manatt's coworkers ridiculed her for mispronouncing the word "Lima" and referred to her as "China woman." Id. Though unquestionably offensive and insensitive, we held that these gestures and comments did not create an actionable hostile work environment. Id. at 798–99; see also, e.g., Vasquez v. County of Los Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003) (holding a coworker's isolated remarks, six months apart, that an employee had "a typical Hispanic macho attitude" and "should consider transferring to the field because ‘Hispanics do good in the field’ " were not severe enough to create a hostile work environment).

The objective severity of Barajas's comments about looking for a job outside of a female-oriented field pale in comparison to the statements and conduct in Kortan, Manatt, and Vasquez. Those cases involved either sexually or racially motivated derogatory language; Barajas's comments did not directly pertain to Fried's sex or race. The context in which the comments were made is also important because Fried has a degree in culinary arts, and Fried's coworkers testified that it was well known his dream job was to own a food truck. Especially when viewed against that backdrop, Barajas's comments suggesting that Fried "might want to [consider doing] something with cooking for work," clearly do not support a claim of hostile work environment. Fried's coworkers' banter regarding wearing wigs is also insufficient. Even viewed cumulatively, this is the type of infrequent joking or teasing we have held to be part of the ordinary tribulations of the workplace. See EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010) (acknowledging sporadic gender-related jokes or occasional teasing do not support a hostile work environment claim).

To survive a defendant's motion for summary judgment, as a threshold matter, a plaintiff must show that the harassment occurred because of sex. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In addition to this requirement, to state a prima facie case of hostile work environment sexual harassment a plaintiff must show that she has experienced (1) conduct of a sexual nature (2) that is so severe or pervasive as to alter the terms and conditions of her working environment and (3) that the conduct is unwelcome. Harris v. Forklift Systems, 510 U.S. 17,114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000); Ellison v. Brady 924 F.2d 872, 875 (9th Cir.1991). The plaintiffs belief that she has been subjected to a hostile and abusive work environment must be both subjectively held and objectively reasonable. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir.1991). See also, Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (holding that sexual harassment is actionable only if it is both objectively and subjectively offensive, such that a reasonable person would find the environment hostile or abusive and the plaintiff actually did find the environment hostile or abusive).

In hostile work environment cases in which the alleged harasser is a

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coworker, this circuit's courts apply a negligence standard which means that an employer is liable only for harassment about which the employer "knew or should have known."⁴ Burrell v. Star Nursery, 170 F.3d 951, 955 (9th Cir.1999); Ellison v. Brady, 924 F.2d at 881-882. See also Reitter v. City of Sacramento, 87 F.Supp.2d 1040, 1044 (E.D.Cal.2000) (citing Burrell and stating, "Because the test for employer liability for co-worker sexual harassment is negligence, the employer is only liable in circumstances in which management-level employees knew or should have known about the harassment."). Once notified that harassment occurred, an employer's remedy should be "immediate and appropriate." 29 C.F.R. Sec. 1604.11(d).

"Once an employer knows or should know of [coworker] harassment, a remedial obligation kicks in." Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). Such an employer will be liable for the hostile work environment created by the coworker unless "the employer. . . take[s] adequate remedial measures in order to avoid liability." Yamaguchi v. United States Dep't of the Air Force, 109 F.2d 1475, 1482 (9th Cir 1997). The employer's actions should be "reasonably calculated to end the harassment." Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).

Star contends that the district court erred in finding that the VA's response to the harassment was adequate. She relies first on language in several of our cases indicating that an adequate employer response must always involve some form of "discipline" of the harasser. See Yamaguchi, 109 F.3d at 1483 (stating that "the employer's actions must .. . discipline the offender"); Intlekofer, 973 F.2d at 777 (stating that the employer "must take some form of disciplinary action"). She then argues that the testimony of several VA managerial employees shows that none of the steps taken with respect to Watson--informing him of the allegations and their seriousness, ordering him to stay away from Star, and moving him to a different shift--constituted or are considered to be "disciplinary action."

We reject this argument. Although the cases in question do not define precisely what is meant by "discipline," the

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VA's failure to characterize its actions as "disciplinary" would, in any case, not be sufficient to show that they were not "disciplinary" within the meaning of the rule applied in those cases.²

The discussion in the cited cases makes clear that counseling or admonishing the offender can constitute an adequate "disciplinary" response. In Yamaguchi, we affirmed the district court's denial of the plaintiff's motion for partial summary judgment on the issue of employer liability despite the fact that the offender was never "officially disciplined or reprimanded for his actions" but was "ordered to have no further contact with" the plaintiff, was moved to a different work site, and was forced to turn in his key to his previous work site. See 109 F.3d 1483. In Intlekofer, we stated that "counseling sessions are not necessarily insufficient," although we stressed that they can be sufficient "only as a first resort." 973 F.2d at 779-80. Those cases therefore do not hold that counseling can never be a sufficient response.

In addition, Watson was not merely counseled. After having been ordered to leave Star alone, he was moved to a different shift, even though Star admitted that the initial order had brought an end to Watson's harassing conduct. An employer's refusal to apply the label "discipline " to any of these actions is not determinative of their adequacy as a remedy. What is important is whether the employer's actions, however labeled, are adequate to remedy the situation.

Star's reliance on Fuller is likewise misplaced. The defendant in that case took no remedial action whatsoever, and the court held that the offender's voluntary cessation of harassing conduct was in itself insufficient to discharge the defendant's remedial obligation. See Fuller, 47 F.3d at 1528-29. Because the VA did take remedial action when informed of Watson's conduct, Fuller is inapplicable.

To succeed on a Title VII claim for hostile work environment, plaintiff must show that: (1) she was subjected to a hostile work environment; and (2) that the defendant was liable for the harassment that caused the hostile work environment to exist. See Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 647 (9th Cir. 2021). To establish the first prong, hostile work environment, [*8]  plaintiff must show that: (1) she was subjected to verbal or physical conduct based on a protected status; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Id.; see also Munoz v. Mayorkas, CV 20-4046 DSF (GJSx), 2021 U.S. Dist. LEXIS 260642, 2021 WL 9315127, at *8 (C.D. Cal. Dec. 28, 2021). As to the second prong, "an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker's or third party's sexual harassment or racial discrimination the employer knew or should have known about." Fried, 18 F.4th at 647.

Here, Anderson's hostile work environment claim is based on: (1) Ward allowing Holmes to view Anderson's written statement about him; (2) Ward's statement that Anderson's words have no credibility; and (3) Ward's failure to give witness statements to Anderson for her to review, including Holmes' statement. [Dkt. 27-1 at 2, ¶1]; [Dkt. 18-2 at 2-3]. As such, the relevant inquiry for the Court is whether Ward's response to the incident created a hostile work environment. DeJoy argues Ward, upon being told of the incident, immediately conducted a reasonable investigation into the incident. [Dlt 18 at 7-9]. Anderson argues the Postal Service, [*9]  through Ward, failed to take prompt corrective action. [Dkt. 27 at 5-7]. For the following reasons, the Court agrees with DeJoy.

An employer's response to a third party's conduct at work can independently create a hostile work environment. Fried, 18 F.4th at 650. "[A]n employer's prompt corrective response can insulate an employer from liability for an employee's hostile work environment claim." Id. (citing Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000)). Moreover, "while the coworker's egregious conduct [is] relevant, the proper focus for the hostile work environment claim [is] the employer's response to the coworker's conduct." Id. The employer's liability runs from the time it knew or should have known of the egregious conduct. Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001). The employer's obligation to take prompt corrective action includes: (1) taking temporary steps to deal with the situation pending a determination as to whether the complaint is justified and (2) taking permanent remedial steps once the investigation is completed. Id.

An employer is liable for a employee's sexual harassment of a coworker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. ²⁷ “Harassment is to be remedied through actions targeted at the harasser, not at the victim[.]” ²⁸ The record establishes that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect's responses were ineffectual, and known by Prospect to be ineffectual. His immediate supervisor, Ronda Thompson, failed even to tell Munoz to stop. He repeatedly brought his concerns to others in management, and a manager told Munoz to stop, but management did nothing about it when Munoz did not stop, and management knew she had not. Instead the assistant general manager told Lamas to sing to himself “I'm too sexy for my shirt.”

Prospect's actions were not enough to establish an affirmative defense for Prospect. “If the employer fail[s] to take even the mildest form of disciplinary action the remedy is insufficient under Title VII.” ²⁹ Prospect did nothing about Munoz, instead telling Lamas to console himself by saying “I'm too sexy for my shirt.” Men as well as women are entitled under Title VII to protection from a sexually abusive work environment. ³⁰ Lamas submitted evidence that Prospect knowingly denied him protection.