source: Caselaw Access Project

author: PREGERSON, Circuit Judge: BEA, Circuit Judge,

license: Public Domain

text:
    Efrain REYNAGA, Plaintiff-Appellant, v. ROSEBURG FOREST PRODUCTS, Defendant-Appellee.
    No. 14-35028
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 5, 2016 Portland, Oregon
    Filed January 26, 2017

      Marianne G. Dugan (argued), Eugene, Oregon, for Plaintiff-Appellant.
    Jason Montgomery (argued) and Dan W. Clark, Dole Coalwell Clark Mountainspr-ing & Mornarich P.C., Roseburg, Oregon, for Defendant-Appellee.
    Before: HARRY PREGERSON, CARLOS T. BEA, and JOHN B. OWENS, Circuit Judges.
   Dissent by Judge BEA

OPINION

PREGERSON, Circuit Judge:

Appellant Efrain Reynaga and his son Richard Reynaga worked as millwrights for Roseburg Forest Products (“Rose-burg”). 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 Bra-naugh (“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 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 Bra-naugh 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.

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 “rug-heads;” (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 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 Bra-naugh 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 Bra-naugh. In response to the complaint, Roseburg hired Vigilant, a company that specializes in employment relations, 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 ... [ujnless 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 the Rey-nagas 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, Bra-naugh 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] in-' vestigation 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] intended] to address those issues ... but [Efrain was] unwilling to meet ... despite _re-peated 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 VH”): (1) hostile work environment; (2) disparate treatment; and (3) retaliation. Efrain also alleged a fourth cause of action for relief under Oregon state law for disparate treatment (O.R.S. § 659A.030(l)(a)) and hostile work environment (O.R.S. § esoAfisoaKb)).

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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 Rose-burg’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 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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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 plaintiffs 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 Bra-naugh’s behavior, failed to take adequate remedial and disciplinary action, such that Roseburg may be liable 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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). “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).

“[Sjimple 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, 118 S.Ct. 2275 (internal quotation marks and citation omitted); see also Harris, 510 U.S. at 22, 114 S.Ct. 367. 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 assess whether the workplace was hostile from the perspective of a reasonable person belonging to the plaintiffs 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) Bra-naugh 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 Bra-naugh’s alleged conduct would be highly offensive and demeaning to anyone, especially a person from Mexico. Efrain identifies several derogatory remarks that Bra-naugh 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 Bra-naugh 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 utterancefe].” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. 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 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 Bra-naugh 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 Bra-naugh’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.

1. Vicarious Liability

An employer is vicariously liable for a hostile work environment created by a supervisor. Vance v. Ball State Univ., — U.S. -, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (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 plaintiffs 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, 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 VTI requires more than a mere request to refrain from discriminatory conduct.”).

The record establishes that a reasonable trier of fact could find that Rose-burg 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 Al-bertus 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 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 independent company (Vigilant) to investigate the allegations, which eventually led to Rose-burg’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 Bra-naugh 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 Bra-naugh 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. 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. MercedCmty. 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, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 93 S.Ct. 1817).

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. 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 Rose-burg’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.

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 pre-textual. 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 coworker 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.

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 Wallis 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 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 plaintiffs 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, nondiscriminatory 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 cogniza-bility for purposes of establishing a genuine issue of material fact.” United States 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. “[0]nly nontrivial 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, 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, Rose-burg 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 has met his prima facie burden for the retaliatory termination claim, the burden shifts to Rose-burg 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 nonretaliatory 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, 93 S.Ct. 1817. 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 plaintiffs protected class were treated better for offenses of comparable seriousness could also help demonstrate pretext. Id. at 805, 93 S.Ct. 1817. 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 plaintiffs prima facie case and “the probative value of the proof that the employer’s explanation is false,” 530 U.S. 133, 148-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

Here, the district court erred by focusing on “Plaintiffs 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 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 témporal 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.

IY. 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(l)(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 Rose-burg’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.

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 descent) 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 Rey-naga 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).

The district court concluded that Bra-naugh’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 Rose-burg 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 Rey-naga’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, Rose-burg 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 investigation. 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 Reyna-ga’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 Rose-burg’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, 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 Rose-burg fire Branaugh or never schedule Bra-naugh 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, Reyna-ga 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 fired him for refusing to work on January 13. The district court should thus be affirmed on this point.

I respectfully dissent.

      . Efrain did not allege a state law claim for retaliation under O.R.S. 659A.030(l)(f).

      . Reynaga identified only two acts by Bra-naugh 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.

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


author: FISHER, Circuit Judge:

text:
    Leonel SANDOVAL, AKA Lione Sandoval, Petitioner, v. Sally Q. YATES, Acting Attorney General, Respondent.
    No. 13-71784
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 8, 2016, Portland, Oregon
    Filed January 27, 2017

      Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.
    Song E. Park (argued), Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges.

       Sally Q. Yates is substituted for her predecessor, Loretta E. Lynch, as Acting Attorney General of the United States, pursuant to Fed. R. App. P. 42(c)(2).

   OPINION

FISHER, Circuit Judge:

Sandoval was convicted of delivery of a controlled substance under Oregon Revised Statutes § 475.992(l)(a). Oregon law permits conviction for delivery under this statute based on mere solicitation. Because the Controlled Substances Act does not punish soliciting delivery of controlled substances, § 475.992(l)(a) cannot be a categorical match to an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Further, because § 475.992(l)(a) is indivisible, the modified categorical approach does not apply. Therefore, we grant Sandoval’s petition and remand for further proceedings.

I

Leonel Sandoval moved to the United States from Mexico when he was nine years old. He adjusted to lawful permanent resident status in 1990. His wife of over 26 years and two children are United States citizens.

In 1998, Sandoval was convicted of delivery of a controlled substance under Oregon law. The indictment identified the controlled substance as heroin. He performed community service at a forest project and was placed on probation for two years. Since then, he has not been convicted of any other criminal activity. Twelve years later, the government instituted removal proceedings against him. It alleged two grounds for removal based on Sandoval’s 1998 conviction: (1) that the conviction was an aggravated felony and (2) that the conviction was related to a controlled substance. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Under the second charge, Sandoval could seek cancellation of removal based on his long-standing residence and family ties in the United States. But the first charge made him ineligible for such relief. See id. § 1229b(a)(3). Accordingly, Sandoval argued the government had failed to offer clear and convincing evidence he was convicted of an aggravated felony because Oregon’s statute is broader than a federal controlled substance offense given that it punishes solicitation in addition to actual and attempted delivery. The IJ and BIA rejected this argument, concluded he was ineligible for cancellation of removal and ordered him removed.

Sandoval timely petitioned for review. We have jurisdiction and review Sandoval’s petition de novo. See 8 U.S.C. § 1252(a)(2)(D); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010); see also Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an agency’s interpretations of state law or provisions of the federal criminal code. See Hoang v. Holder, 641 F.3d 1157, 1161 (9th Cir. 2011).

II

To determine whether a state criminal conviction is an aggravated felony, we must follow the “categorical approach.” See Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under this approach, we “compare the elements of the statute forming the basis of the [petitioner’s] conviction with the elements of the ‘generic’ crime — ie., the offense as commonly understood.” Id. Only if the elements in the petitioner’s statute of conviction “are the same as, or narrower than, those of the generic offense” is the petitioner’s conviction a categorical match. Id.

Under the categorical approach, we first determine the definition of the generic offense — here, an aggravated felony. This requires us to navigate a “maze of statutory cross-references.” Carachuri-Rosendo v. Holder, 560 U.S. 563, 567, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). We start with the definition of “aggravated felony” as used in 8 U.S.C. § 1101(a)(43).

The term “aggravated felony” includes two federal controlled substance offenses relevant to this appeal: (1) “illicit trafficking in a controlled substance,” which includes (2) any “drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). Only felonies qualify as “illicit trafficking” offenses or “drug trafficking crime[s].” See Lopez v. Gonzales, 549 U.S. 47, 55, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). A “felony” means an offense punishable by more than one year under federal law. See 18 U.S.C. § 3559(a)(5); see also Moncrieffe v. Holder, — U.S. -, 133 S.Ct. 1678, 1683, 185 L.Ed.2d 727 (2013); Lopez, 549 U.S. at 60, 127 S.Ct. 625 (“In sum, we hold that a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”).

The elements of an “illicit trafficking” offense are not statutorily defined. See 8 U.S.C. § 1101. But the Supreme Court has said an illicit trafficking offense includes “some sort of commercial dealing.” Lopez, 549 U.S. at 53, 127 S.Ct. 625; see also Carachuri-Rosendo, 560 U.S. at 574, 130 S.Ct. 2577.

The elements of a “drug trafficking crime” are more readily determined. Drug trafficking crimes include felonies punishable under the Controlled Substances Act. See 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Because heroin is a federally controlled substance, see 8 U.S.C. § 1101(a)(43)(B); 21 U.S.C. §§ 802(6), 812(e)(sched. I)(b)(10), knowingly distributing or possessing with intent to distribute heroin violates the Controlled Substances Act, see 21 U.S.C. § 841(a)(1). Doing so is a felony, ie., a crime punishable by more than one year of imprisonment under federal law. See 21 U.S.C. § 841(b)(1)(C). Accordingly, because distributing heroin is a drug trafficking crime, we must consider the meaning of “distribute.”

The term “distribute” means “deliver.” See 21 U.S.C. § 802(11). And “deliver” means “the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship.” Id. § 802(8). Accordingly, one may commit a drug trafficking crime by actually delivering, attempting to deliver or possessing with intent to deliver heroin.

Because Sandoval argues the Oregon statute under which he was convicted criminalizes solicitation, we must next determine whether generic attempted delivery also includes solicitation. The Controlled Substances Act does not define the term “attempt.” See 21 U.S.C. §§ 802, 846. Nevertheless, as the government concedes, mere solicitation of controlled substances does not constitute “attempted” delivery under federal law. See United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc), superseded on other grounds as stated in Guerrero-Silva v. Holder, 599 F.3d 1090, 1092 (9th Cir. 2010); see also Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo, 123 F.3d at 1325-26. The Controlled Substances Act “does not mention solicitation,” unlike “attempt” and “conspiracy.” Rivera-Sanchez, 247 F.3d at 909 (quoting Leyva-Licea, 187 F.3d at 1150); see also Coronado-Durazo, 123 F.3d at 1325; 21 U.S.C. § 846 (prescribing felony punishment for attempting or conspiring to deliver a controlled substance). This is unsurprising, as “solicitation” is the “act or an instance of requesting or seeking to obtain something.” Solicitation, Black’s Law Dictionary (10th ed. 2014). While strongly corroborative of intent to commit a crime, such a request does not cross the line between preparation and attempt. See, e.g., United States v. Yossunthorn, 167 F.3d 1267, 1272-73 (9th Cir. 1999) (ordering drugs from a known supplier was not an attempt when there was no agreement as to essential details regarding the transaction).

Therefore, there are two federal offenses that may qualify as aggravated felonies for the purposes of this case. The first is an illicit trafficking offense that must (1) contain a “commercial dealing” element and (2) be punishable as a felony under federal law. The second is a drug trafficking crime for delivery of heroin satisfying the following elements: (1) knowing or intentional (2) delivery, attempted delivery, conspiracy to deliver or possession with intent to deliver (3) heroin. The latter offense may not be accomplished by merely soliciting delivery — ie., offering delivery— of heroin. The next question is whether Sandoval’s Oregon statute of conviction matches either federal definition.

Sandoval was convicted of delivering a controlled substance. His indictment identifies the controlled substance as heroin and cites Oregon Revised Statutes § 475.992. The only portion of that statute proscribing delivery of heroin states:

[I]t is unlawful for any person to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to: (a) A controlled substance in Schedule I, is guilty of a ... felony.

Or. Rev. Stat. § 475.992(l)(a) (1998). The term “deliver” means “the actual, constructive or attempted transfer” of a controlled substance from one person to another. Id. § 475.005(8) (1998). “A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” Id. § 161.405(1) (1998).

Under Oregon law, solicitation— even without possession — is a “substantial step toward committing the crime of attempted delivery under ORS 475.992(1).” State v. Sargent, 110 Or.App. 194, 822 P.2d 726, 728 (1991); see also State v. Lawrence, 231 Or.App. 1, 217 P.3d 1084, 1086 (2009). And, taking a substantial step toward committing the crime of attempted delivery by solicitation “constitutes delivery” in Oregon. Sargent, 822 P.2d at 728.

Sargent relied on State v. Self, 75 Or. App. 230, 706 P.2d 975 (1985), in concluding that mere solicitation supported a conviction for delivery of controlled substances under § 475.992(l)(a). See Sargent, 822 P.2d at 728. There, the defendant was convicted under Oregon’s generic solicitation statute, Oregon Revised Statutes § 161.435. See Self, 706 P.2d at 977. The court set out the specific facts:

At the time of the commission of the instant offense, defendant was serving a sentence in the Lane County Jail. While at that facility, he telephoned one Webb, whose foster daughter he knew, in an attempt to obtain Webb’s help in securing $2000 for the release from jail of a third party, Brown. Defendant made about six phone calls, the first two to the foster daughter. During the fourth call, • when asked by Webb about collateral, defendant for the first time said that, after his release, Brown would go to two places in Eugene and get the money to repay Webb. Then, as a further reward, Webb and Brown would go to San Francisco, where Brown would obtain and give Webb five kilos of cocaine.

Id: The defendant was convicted of “solicitation of attempted delivery of an illegal substance.” Id. The appellate court affirmed, “holding that the facts were sufficient to support his conviction.” Sargent, 822 P.2d at 728.

That the appellate court in Sargent concluded the facts of Self were “illustrative” is telling. See id. The defendant in Self did not possess or even offer to deliver the cocaine. See Self, 706 P.2d at 977, Instead, he tried to arrange the release of a third party, promising that same third' party would obtain cocaine in exchange for assis-tanee in the third party’s release. See id. There was no agreement to accomplish this scheme. See id. Further, the court recited no facts indicating the third party’s willingness to perform the promised criminal acts. See id. Nevertheless, the appellate court in Sargent pointed to Self as the “illustrative” case supporting its conclusion that “delivery” under § 475.992(l)(a) includes solicitation. Sargent, 822 P.2d at 728. This holding has not been disturbed by later Oregon case law.

For example, in State v. Pollock, 189 Or.App. 38, 73 P.3d 297 (2003), the court reversed a pretrial order suppressing evidence against a defendant charged under § 475.992 for delivery of a controlled substance. There, an officer had been told by witnesses that the defendant had tried to sell them ecstasy, a controlled substance. See id. at 298. The trial court found that “an offer to sell a controlled substance is, standing alone, insufficient to establish probable cause to believe that an attempted transfer has occurred.” Id. at 299. The appellate court reversed:

We conclude that offering to sell a controlled substance constitutes a substantial step toward a completed transfer of that substance. As the court explained in State v. Walters, 311 Or. 80, 85, 804 P.2d 1164, cert. den., 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991), “ ‘to be a substantial step the act must be “strongly corroborative of the actor’s criminal purpose,” ’ ... ie., [the] defendant’s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose.” (Citations omitted.) An offer to sell a controlled substance meets the two-part test the court identified in Walters. It “substantially advances” the goal of completing the transaction. See id. An offer to sell goes beyond mere preparation and shows a commitment to completing the transfer if the offer is accepted. Additionally, the offer “provided] some verification of the existence of [defendant’s criminal] purpose.” See id. Taking defendant at his word, he would have immediately transferred the ecstasy to Andersen and Carver if they had accepted his offer. At a minimum, the officer reasonably could conclude from defendant’s offer to sell a controlled substance that it was more likely than not that he had intentionally taken a substantial step toward the completed transfer of that substance.

Id. at 300 (alterations in original) (emphases added). Thus, under Oregon law, the offer to sell a controlled substance is enough to complete a substantial step toward an intended transfer, i.e., offering to sell a controlled substance is an attempt under Oregon law. See id. The same is not true under federal law. See Rivera-Sanchez, 247 F.3d at 908-09. Accordingly, a statute that punishes the mere offer of a controlled substance is not an aggravated felony under the categorical approach. See id. at 909.

The government concedes that simply offering to deliver a controlled substance is not an aggravated felony. Nevertheless, it contends § 475.992(l)(a) does not punish simply offering a controlled substance, but requires more. It relies on State v. Johnson, 202 Or.App. 478, 123 P.3d 304 (2005). We are not persuaded.

In Johnson, the defendant was convicted of both attempted murder and solicitation to commit murder. See id. at 306. During phone conversations and in online chats, the defendant asked a friend to kill both his wife and daughter, suggesting methods for the murders and offering to make sure the friend would “never want for anything” if she did as asked. See id. Because the state had no evidence of a “concrete” plan outlined for the murder of his wife and child, the defendant argued the evidence was insufficient to support a solicitation or attempt conviction. See id. at 307-08. The appellate court disagreed and affirmed his conviction on appeal. See id. at 310. The government contends this case stands for the proposition that mere solicitation— simply offering to deliver a controlled substance — is not enough to convict under § 475.992(l)(a). We do not read it that broadly.

First, Johnson did not involve a controlled substance offense under Oregon law. See id. at 305. Instead, it dealt with attempted murder and solicitation to commit murder. See id. at 306. Thus, it is not clear whether Johnson is applicable here.

Second, even if Johnson is applicable, the standards the court outlined match those in Sargent:

In State v. Sargent ..., we held that, “if a person solicits another to engage in conduct constituting an element of the crime of delivery, e.g., to provide to the person a controlled substance for the purpose of distribution to third parties, the person has attempted delivery....” We see no reason to depart from that reasoning here, and we decline to hold that solicitation of a knowing agent is categorically disqualified as a “substantial step” under ORS 161.405. Rather, as the statute plainly states, solicitation requires a “substantial step.” Solicitation of a guilty person qualifies as a “substantial step” if, under the facts, the defendant’s actions exceed mere preparation, advance the criminal purpose charged, and provide some verification of the existence of that purpose.

Id. at 309-10 (footnotes omitted). The appellate court’s reasoning in Johnson was that solicitation is both strong evidence of criminal purpose and a substantial step toward accomplishing that purpose under Sargent. See id. Nothing in Johnson requires a defendant to take some affirmative act to further the goal of the requested criminal behavior or specify how the crime would take place. See id. at 308 (“[The] details of how the crime is to be committed need not be specified.”). Johnson does not limit Sargent in any way.

In sum, the government’s argument fails to acknowledge Sargent’s and Pollock’s explicit statements that a conviction under § 475.992(l)(a) may be supported by merely offering to deliver controlled substances. See Sargent, 822 P.2d at 728 (“We conclude that, if a person solicits another to engage in conduct constituting an element of the crime of delivery ..., the person has taken a substantial step toward committing the crime of attempted delivery ... [and] [u]nder that statute, the conduct constitutes delivery.”); Pollock, 73 P.3d at 300 (“We conclude that offering to-sell a controlled substance constitutes a substantial step toward a completed transfer of that substance.”). As we have repeatedly held, solicitation of controlled substances is not an aggravated felony. See, e.g., Rivera-Sanchez, 247 F.3d at 909.

Because Oregon’s definition of “delivery” includes solicitation, § 475.992(l)(a) is not a categorical match to a “drug trafficking crime.” Further, because no “commercial element” is included in the Oregon statute, it also is not a categorical match to an “illicit trafficking” offense. Therefore, Sandoval’s conviction for delivery of heroin does not qualify as an aggravated felony under the categorical approach.

Ill

Our inquiry does not end here, however. We must next address whether the modified categorical approach may be used to determine whether Sandoval’s conviction qualifies as an aggravated felony.

Only divisible statutes are subject to the modified categorical approach. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867-69 (9th Cir. 2015) (holding Descamps divisibility analysis is applicable in the immigration context). “[Divisibility hinges on whether the jury must unanimously agree on the fact critical to the federal statute.” Id. at 868-69. Such critical facts are “elements,” which are the “things the ‘prosecution must prove to sustain a conviction.’ ” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (quoting Black’s Law Dictionary 634 (10th ed. 2014)).

To resolve the question of whether statutory alternatives are either elements or means, a court looks first to the statute itself and then to the case law interpreting it. See id. at 2256-57; see also Almanza-Arenas v. Lynch, 815 F.3d 469, 479-82 (9th Cir. 2016) (en banc). If state law fails to answer the question, a court may look to Shepard documents, which may be helpful in determining divisibility. See Mathis, 136 S.Ct. at 2256-57; see also Descamps, 133 S.Ct. at 2284 (citing Shepard v. United States, 544 U.S. 13, 25-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). But if the statute, case law and Shepard documents fail to speak plainly as to whether statutory alternatives are elements instead of means, the statute is indivisible and the modified categorical approach has no application. See Mathis, 136 S.Ct. at 2257; see also In re Chairez-Castrejon, 26 I. & N. Dec. 819, 819-20 (BIA 2016) (holding Descamps and Mathis divisibility analysis “applies in immigration proceedings nationwide to the same extent that it applies in criminal sentencing proceedings”).

The government does not argue § 475.992(l)(a) is divisible. Instead, it urges us to remand to the BIA to determine whether § 475.992 is divisible. When an agency does not reach an issue for which it is owed Chevron deference, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (internal quotation marks omitted); see also Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). But interpreting criminal law is not a matter placed primarily in agency hands. See Hoang, 641 F.3d at 1161. We owe no deference to the decision of the BIA on this issue and there is no reason to remand for the BIA to decide the issue of divisibility in the first instance. See Rivera v. Lynch, 816 F.3d 1064, 1078 n.13 (9th Cir. 2016) (“The question of [a state criminal statute’s] divisibility ‘requires neither factual development nor agency expertise’ and is properly analyzed by this court.” (quoting Chavez-Solis v. Lynch, 803 F.3d 1004, 1012 n.6 (9th Cir. 2015))).

Section 475.992(l)(a) does not list “solicitation” as an alternative method of accomplishing delivery. Nor is solicitation included in the express statutory definition of “deliver.” See id. § 475.005(8). The inclusion of solicitation as a means of accomplishing delivery is a judicial interpretation of the word “attempt.” Therefore, this is a circumstance where the divisibility analysis is “straightforward” because § 475.992(l)(a) “sets out a single (or ‘indivisible’) set of elements to define a single crime.” Mathis, 136 S.Ct. at 2248. Solicitation is not an enumerated statutory alternative to delivery or attempt but is, instead, included within the meaning of those listed alternatives. See Sargent, 822 P.2d at 728. The statute is therefore indivisible with respect to whether an “attempt” is accomplished by solicitation.

The government argues we have previously held § 475.992(l)(a) could qualify as an aggravated felony under the modified categorical approach, citing United States v. Chavaria-Angel, 323 F.3d 1172, 1177-78 (9th Cir. 2003). There, we affirmed the district court’s conclusion that the defendant’s § 475.992 offense for delivery of a controlled substance was an aggravated felony based on a review of uncertified Oregon state records. See Chavaria-Angel, 323 F.3d at 1174, 1177-78. However, the decision rested on the method rejected in Descamps, 133 S.Ct. at 2282-83, 2286-91, and applied the modified categorical approach without performing any divisibility analysis. See Chavaria-Angel, 323 F.3d at 1177-78. The analysis improperly focused on what the defendant actually did as opposed to the crime of which the defendant was convicted. Compare id. (focusing on the evidence supporting a finding the defendant sold controlled substances), with Descamps, 133 S.Ct. at 2287 (calling this method a “modified factual” approach, which turns an “elements-based inquiry into an evidence-based one”). The opinion did not consider whether a jury, when convicting a defendant of delivery of a controlled substance, must unanimously choose between, alternative methods of delivery, including solicitation. See Chavaria-Angel, 323 F.3d at 1177-78. Descamps and Mathis require these inquiries. See Mathis, 136 S.Ct. at 2256-57; Descamps, 133 S.Ct. at 2286-91. Chavaria-Angel, therefore, is not controlling here.

To summarize, § 475.992(l)(a) is over-broad in its definition of “delivery,” and the modified categorical approach may not be applied because § 475.992(l)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation. Therefore, we hold a conviction for delivering heroin under § 475.992(l)(a) is not an aggravated felony. Sandoval’s petition is granted.

GRANTED AND REMANDED.

      . This statute is currently codified at Oregon Revised Statutes § 475.752.

      . The Controlled Substances Act defines “felony” as "any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13). But 18 U.S.C. § 3559(a) controls for immigration purposes. See Moncrieffe, 133 S.Ct. at 1683; see also Carachuri-Rosendo, 560 U.S. at 567, 130 S.Ct. 2577.

      . We do not consider whether solicitation to commit murder is an aggravated felony.

      . This was exemplified in State ex rel. Juvenile Department of Union County v. Krieger, 177 Or.App. 156, 33 P.3d 351, 352 (2001), in which the Oregon appellate court affirmed "without discussion” a conviction for solicitation. There, a minor asked several students to help him "blow up or shoot up” their school. See id. All of these requests were rejected and the minor "never pursued any further discussion” or provided "specific plans to carry out the shooting or bombing.” Id. Nevertheless, the minor’s conviction for solicitation was summarily affirmed by the court. See id.


author: M. SMITH, Circuit Judge: O’SCANNLAlN, Circuit Judge,

text:
    Charles MANLEY, Plaintiff-Appellant v. Michael ROWLEY, Officer; Alan Zimmer; Glenn Hammock; Scott Manning; State of Nevada, Nevada Department of Corrections; E.K. McDaniel; Renee Baker, Warden, Defendants-Appellees.
    No. 15-15320
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 14, 2016, San Francisco, California
    Filed January 30, 2017

      Matthew Cormack (argued), Katherine Cheng, and Greg Andres, Davis Polk & Wardwell LLP, New York, New York, for Plaintiff-Appellant.
    Lawrence VanDyke (argued), Solicitor General; Clark G. Leslie, Assistant Solicitor General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Carson City, Nevada; for Defendants-Ap-pellees.
    Before: DIARMUID F. O’SCANNLAIN, RONALD M. GOULD, and MILAN D. SMITH, JR., Circuit Judges.
   Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

OPINION

M. SMITH, Circuit Judge:

Plaintiff-Appellant Charles Manley challenges the district court’s entry of summary judgment for Defendants-Appellees, who are various prison officers and officials, on Manley’s Eighth and Fourteenth Amendment claims for excessive force and deliberate indifference. For the reasons given in this opinion, we affirm in part, reverse in part, and remand with instructions to assign this case to a different district judge.

FACTUAL AND PROCEDURAL BACKGROUND

This matter began on July 2, 2009 as the result of an altercation between Manley and his cellmate at Ely State Prison (ESP). Manley claims that he fought in self-defense, and that he used the prison’s intercom system multiple times to contact Correctional Officer Zimmer and request removal from the cell. Zimmer denies receiving any such requests.

Some time later, Appellees Officer Row-ley and Lieutenant Jones “responded to reports of a fight” in Manley’s cell. Manley and his cellmate were extracted from their cell, and officers video-recorded the extraction, as required by Nevada Department of Corrections (NDOC) Administrative Regulation (A.R.) 405.07. Because only one camera was used, after Manley’s extraction, the camera panned away from Manley (in alleged violation of prison policy) to focus on his cellmate’s removal. Manley alleges that during this unrecorded interval, Officers Rowley and Hammock punched, kicked, and stomped him while he was restrained in handcuffs and leg irons. The video pans back to Manley and shows him walking briefly, before officers begin carrying him by his shackles. Lifting an inmate by his restraints contravenes ESP training, but does not violate NDOC policy.

Manley alleges that he suffered numerous injuries as a consequence of this rough treatment. His prison medical records reflect various injuries and physical complaints, though they do not indicate the cause of his ailments. The record also shows that on July 2, 2009, Manley was under the influence of methamphetamine.

Manley was charged in a disciplinary proceeding for his July 2, 2009 conduct. Manley challenged the results of the disciplinary proceeding through the prison grievance process, wherein he claimed that the proceeding had not complied with prison procedural requirements. Thereafter, Manley received a new hearing, wherein the presiding officer found him guilty of disobeying a correctional employee, abusive language or actions, delaying, hindering, or interfering with a correctional employee in the performance of his duties, and assault and battery. Manley then filed a second grievance, wherein he argued that the second hearing was held outside of the 30-day timeframe required by A.R. 707(d)(1). Manley also claimed in his second grievance that he had “proved at [the] hearing” that he had called Officer Zim-mer “requesting to be removed from [his] cell,” but that “by the time someone responded to the cell [his] cell[mate] had already started the fight.” Manley noted that Officer Zimmer “requested that [Manley’s] cell be checked,” and that neither “he [Zimmer] nor [the prison] [is] responsible for what happened in the cell.” However, Manley also disclaimed any personal responsibility for what happened since he was left in the cell and had to defend himself. Finally, Manley requested that the “charges [ ] be dismissed due to information given that Manley requested to leave the cell before the fight.” Manley’s second grievance was denied, and he pursued it through two more levels of appeal, each of which denied his grievance.

Manley filed a complaint in the District Court of Nevada on July 22, 2011, and Appellees removed the matter to federal district court in the District of Nevada on September 1, 2011. Manley then filed an amended complaint, asserting claims for (1) deliberate indifference against Officer Alan Zimmer for failure to intervene, and (2) cruel and unusual punishment against Officers Michael Rowley, Cameron Hors-ley,- Glenn Hammock, and Scott Manning for their alleged use of excessive force in removing and restraining Manley on July 2, 2009, all in violation of the Eighth and Fourteenth Amendment. The parties filed cross-motions for summary judgment, and a magistrate judge issued a report recommending that the district court grant Ap-pellees’ motion in part and deny it in part, and that the court deny Manley’s motion. The magistrate judge recommended that the district court dismiss Manley’s deliberate indifference claim against Officer Zim-mer “without prejudice for failing to exhaust his administrative remedies.” The magistrate judge provided a detailed recitation of the evidence concerning Manley’s excessive force allegation, and found that “a multitude of disputed facts preclude the court from entering summary judgment.”

The district court adopted the magistrate judge’s report and recommendation in part. It found that Manley had failed to exhaust his administrative remedies against Officer Zimmer, but it declined to dismiss the claim without prejudice and instead granted summary judgment for Officer Zimmer, thereby finalizing the adjudication of that claim. It also adopted the magistrate judge’s findings of fact regarding Manley’s excessive force claim, but rejected the recommended disposition, and granted summary judgment for Appellees. In so doing, the district court rejected Manley’s testimony about the events at issue. The district court further commented that,

[ajdmittedly, the Court does not have an excellent track record with the Court of Appeals in granting summary judgment under similar circumstances, [citing four reversals of the district court in similar circumstances], but the Court of Appeals has an equally poor record with juries after remand, [citing jury verdicts in favor of the defendants in each of the four remanded cases], so this Court’s record in finding that a reasonable jury could not find for a plaintiff is ultimately very good.

Manley now appeals the district court’s grant of summary judgment on his deliberate indifference and excessive force claims.

ANALYSIS

I. Manley’s Excessive Force Claim

Courts may enter summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may oppose a motion for summary judgment by asserting “any of the kinds of evidentiary materials listed in Rule 56(c),” including declarations and affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If, as to any given material fact, evidence produced by the moving party ... conflicts with evidence produced by the nonmoving party ... we must assume the truth of the evidence set forth by the nonmoving party with respect to that material fact.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).

We have refused to find a “ ‘genuine issue’ [as to a material fact] where the only evidence presented is ‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). However, because a party’s own testimony will nearly always be “self-serving,” the mere self-serving nature of testimony permits a court to discount that testimony where it “states only conclusions and not facts that would be admissible evidence.” Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497-98 (9th Cir. 2015). Moreover, a court ruling on a motion for summary judgment may not engage in “[credibility determinations” or “the weighing of evidence,” as those are functions reserved for the jury. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The record in this ease contains multiple issues of disputed material fact regarding Manley’s excessive force claim. Manley contends that he was beaten by corrections officers during the period when the camera panned away from him; Appel-lees claim that no such beating occurred. The parties do not dispute that Manley was picked up by his wrist and leg restraints and carried horizontally to a holding cell. Manley, however, asserts that this was a wanton use of force that caused him extreme pain and violated ESP training, while Appellees claim that their actions were necessary to restore and maintain order—though they concede that it contravened officer training protocols.

Thus, the record indicates that a genuine dispute of material fact exists regarding whether Appellees’ use of force resulted in the unnecessary and wanton infliction of pain or suffering. See Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (setting forth the standard for excessive force claims). The district court’s conclusion to the contrary rested primarily on its finding that, due to Manley’s ingestion of methamphetamine, his testamentary evidence was “so compromised as to be virtually worthless.” However, this discounting of Manley’s testimony constitutes the sort of credibility finding properly left for a jury. See Santos v. Gates, 287 F.3d 846, 851-54 (9th Cir. 2002); Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). Manley’s testimony must be credited at this stage of the proceedings unless it is legally defective. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Accordingly, we reverse and remand the district court’s grant of summary judgment for Appellees on Manley’s excessive force claim.

II. Manley’s Deliberate Indifference Claim

The Prison Litigation Reform Act of 1996 (PLRA), amended at 42 U.S.C. § 1997e, requires that inmates exhaust their administrative remedies prior to bringing a court action to redress prison conditions or occurrences. Id. at § 1997(e)(a). This exhaustion requirement is mandatory, and “[a]ll available remedies must [ ] be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy, and effective.” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (quotation marks omitted).

The Supreme Court instructs that “exhaustion” under the PLRA requires compliance with both procedural and substantive requirements set forth by prison grievance processes in order to ensure that the prison receives the “opportunity to correct its own mistakes ... before it is haled into federal court.” Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (quotation marks omitted). The applicable procedures that a prisoner must exhaust “are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

The district court correctly entered summary judgment on Manley’s deliberate indifference claim because Manley failed to exhaust his administrative remedies. The second grievance filed by Manley did not put the prison on notice of Manley’s deliberate indifference claim against Officer Zimmer; in fact, it specifically disavowed any assertion of liability on the part of Officer Zimmer or the prison. The prison therefore did not have the opportunity to respond to Manley’s allegation on the merits, and the claim was not exhausted.

Manley argues that even if he failed to exhaust his deliberate indifference claim, the district court erred by granting summary judgment to Appellees rather than considering a stay to permit exhaustion. We decline to consider whether the district court committed any such error because it would be harmless in any event.

ESP regulations require that grievances be filed within six months of an alleged incident, and state that a prisoner’s failure to file within that period constitutes abandonment of such grievance at all levels. A.R. 740.05(4)(A), (8). The Supreme Court has clarified that the unavailability of administrative remedies due to missed deadlines does not render such remedies “exhausted” under the PLRA, nor does it excuse a failure to exhaust. Woodford, 548 U.S. at 90-93, 126 S.Ct. 2378. The incident giving rise to Manley’s deliberate indifference claim occurred on July 2, 2009. Accordingly, by the time the district court entered its order dismissing that claim on February 10, 2015, the time for filing a grievance had long since passed. Because Manley failed to timely exhaust his deliberate indifference claim against Officer Zimmer, entry of summary judgment on that claim was appropriate.

III. Reassignment upon Remand

Manley asks that we reassign this case to a different district judge on remand. We will reassign a case to a new judge on remand only under “unusual circumstances or when required to preserve the interests of justice.” United States v. Wolf Child, 699 F.3d 1082, 1102 (9th Cir. 2012). We need not find actual bias on the part of the district court prior to reassignment. Krechman v. Cty. of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013). Rather, we consider:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous or based on evidence that must be. rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving appearance of fairness.

Wolf Child, 699 F.3d at 1102 (quoting United States v. Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)). The mere erroneous grant of a party’s motion does not warrant reassignment. McSherry v. City of Long Beach, 423 F.3d 1015, 1023 (9th Cir. 2005). However, the first two factors of the reassignment consideration — the reasonable expectation that a judge will have difficulty setting aside a prior determination, and whether reassignment is advisable to preserve the appearance of justice — are “equally important and a finding of either is sufficient to support reassignment on remand.” Krechman, 723 F.3d at 1112 (citing United States v. Jacobs, 855 F.2d 652, 656 (9th Cir. 1988)).

In granting summary judgment for Appellees, the district judge conceded that he had previously been reversed by our court at least four times under “similar circumstances.” He further claimed that because juries ultimately decided the four referenced cases in favor of the same parties for whom he had initially granted summary judgment, his record was “ultimately very good,” and implied that we should, therefore, defer to his judgment.

By matching his own reversals in other “similar” cases with what he appears to construe as jury “reversals” of our rulings on appeal, the district judge describes a personal matrix wherein the ultimate finding of no liability by a jury justifies his prior entry of summary judgment for Ap-pellees even if his doing so violated governing law. Taking such a position is highly unusual, and goes well beyond a mere legal error or offhand comment. It strongly suggests that the district judge will “have substantial difficulty in putting out of his ... mind previously expressed views” when presiding over this matter on remand. His stated position also confirms that on remand we must reassign the case “to preserve the appearance of justice.” Wolf Child, 699 F.3d at 1102. Finally, because no trial has yet occurred in this matter, any duplication of judicial efforts will be minimal if the case is reassigned on remand.

CONCLUSION

For the reasons stated in this opinion, we affirm the district court’s grant of summary judgment on Manley’s deliberate indifference claims, reverse its grant of summary judgment on Manley’s claim for excessive force, and remand with the instruction that this case be assigned to a different district judge. Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

O’SCANNLAlN, Circuit Judge,

concurring in part and dissenting in part:

While I concur in the decision on the merits, I respectfully dissent from Part III, “Reassignment upon Remand.” The district court’s argument that past trial outcomes verify his ability to predict what a reasonable jury can find is certainly “highly unusual.” It is also logically incoherent. Whether a specific jury finds for one party does not indicate that every reasonable jury would so find. Nevertheless, I disagree that the trial court’s inappropriate comment “call[s] for the extraordinary measure of reassignment.” McSherry v. City of Long Beach, 423 F.3d 1015, 1023 (9th Cir. 2005).

‘We have reassigned cases based upon the ‘appearance of justice’ in few situations .... The common thread in these cases is that the district court’s expressions of frustration with an attorney or party somehow appeared to affect his or her handling of the substantive issues in the case.” State of Cal. v. Montrose Chemical Corp. of California, 104 F.3d 1507, 1521 (9th Cir. 1997). Judge Jones believes that he has predicted many trial outcomes, but that does not mean he would interfere with a trial to maintain his record. Reading such an impulse into his language assumes bad faith where none has been suggested.

Because there is no evidence that the district court’s previous verbal excesses would affect its rulings during trial, the request for reassignment should be denied. Compare Krechman v. County of Riverside, 723 F.3d 1104, 1111-12 (9th Cir. 2013) (deciding not to reassign because judge’s off-color comments about an expert’s credibility did not indicate that the judge would be unable to apply the correct standard on remand) and California v. Montrose Chem. Corp., 104 F.3d 1507, 1521-22 (9th Cir. 1997) (deciding not to reassign because judge’s repeated references to environmental scientists as “pointy heads” and “so-called experts” did not impact his substantive decisions) with United States v. Jacobs, 855 F.2d 652, 656-57 (9th Cir. 1988) (deciding to reassign where trial judge criticized the government’s handling of the case in the jury’s presence, offered strategic advice to one defendant, dismissed indictment in error, refused to reassemble the jury when the mistake was discovered two minutes later, and allowed defendants to file an untimely motion to dismiss).

      . Manley also asserted a supervisory liability claim against ESP Warden E.K. McDaniel and Officer Renee Baker. Manley did not, however, appeal the district court's adjudication of this claim.

      . After briefing concluded on this matter, Ap-pellees submitted a letter, purportedly pursuant to Fed. R. App. P. 28(j), accompanied by new evidence in support of summary judgment on Manley’s excessive force claim. Manley then submitted a letter opposing Appel-lees’ submission. We construe Manley's letter as a motion to strike Appellees’ letter.
      Rule 28(j) permits a party to file a letter alerting the court “[i]f pertinent and significant authorities come to a party's attention after the party's brief has been filed.” Fed. R. App. P. 28(j). As we have previously stated, "Rule 28(j) permits a party to bring new authorities to the attention of the court; it is not designed to bring new evidence through the back door.” Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528 (9th Cir. 1986) (emphasis in original). Manley’s motion to strike is granted because Appellees’ letter offers no new authorities, but rather seeks to supplement the record with new evidence.

      . Manley has also requested appointment of counsel, and an instruction that the district court consider appointing a guardian ad li-tem. We conclude that the magistrate judge did not abuse his discretion when he denied Manley's previous motion for appointment of counsel. However, we leave it to the discretion of the district court whether to appoint counsel and/or a guardian ad litem if Manley so moves upon remand.