Burks

concurring.

I concur in the memorandum disposition. The memorandum does not, however, provide much guidance to the district court regarding the attorneys’ fees motion.

There are several aspects of the record in this case to which, in my view, the district court should pay particular attention in reconsidering the attorneys’ fees award and in explaining any award it decides to issue on remand.

First, the district court recognized that there was one racially discriminatory incident within the limitations period involving a “grossly offensive” document. The district court correctly held that this lone occurrence was not enough to alter the terms and conditions of Burks’s employment, because the perpetrator was not Burks’s supervisor and was promptly disciplined. It may be relevant to the attorneys’ fees decision, though, that the case in this court finally settling the law as to whether and in what circumstances single serious incidents of harassment are actionable issued after the district court opinion in this case. Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000).

Second, in considering the pertinence of time-barred incidents, the district court should take care…

MEMORANDUM *

Robert Burks, an African-American officer with the California Highway Patrol (“CHP”), appeals the district court’s grant of summary judgment and award of attorneys’ fees in favor of CHP in Burks’s action alleging race discrimination, racial harassment and retaliation, in violation of Title VII and California’s Fair Employment and Housing Act (“FEHA”).

The district court did not err in granting summary judgment. Although Burks presented a prima facie case of discrimination, CHP responded with detailed, uncontested evidence establishing legitimate reasons for all of its adverse employment decisions and showing that these decisions, many of which were initiated by citizen complaints, were fully consistent with actions taken against officers of other races for similar acts of misconduct. The burden therefore shifted to Burks to demonstrate that the proffered reasons were pretextual. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998). Burks failed to do so.

Burks presented evidence of allegedly racist remarks that were made well beyond the statutory period of limitations, and that bore no nexus to any adverse employment decision. See Mustafa v. Clark County…