concurring in part and dissenting in part.

I agree that the court must reverse the grant of GTE’s motion for summary judgment and remand for further proceedings on McGinest’s hostile work environment; regrettably, however, I cannot concur in the majority’s analysis, and thus dissent from the reasoning of Part III. I disagree with the court’s reversal of the dismissal on summary judgment of McGinest’s discriminatory failure to promote claim and thus dissent from Part IV.A.; I would affirm. But I do agree that we must affirm dismissal on summary judgment of McGinest’s retaliatory failure to promote claim, and thus concur in Part IV.B. of the court’s opinion as to result and analysis.

Because I believe the majority’s opinion sidesteps Raytheon Co. v. Hernandez, — U.S.-, 124 S.Ct. 513 , 157 L.Ed.2d 357 (2003), essentially abandons Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002), and creates an unreasonable expansion of Title VII liability in the workplace, I must respectfully dissent from the opinion of the court to the foregoing extent.

I

Title VII prevents the establishment of a “hostile work environment” that becomes “sufficiently severe or pervasive to alter the conditions of [one’s] employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 , 106 S.Ct. 2399 , 91 L.Ed.2d 49 (1986); see 42 U.S.C. § 2000e-2(a)(1).

Our evaluation of such claims requires an examination of the totality of the circumstances. Har ris v. Forklift Systems, Inc., 510 U.S. 17, 23 , 114 S.Ct. 367 , 126 L.Ed.2d 295 (1993) (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995) (“Hostility [under Title VII] must be measured based on the totality of the circumstances.”). This appraisal includes consideration of “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.” Harris, 510 U.S. at 23 , 114 S.Ct. 367 .

A

However, before considering the totality of the circumstances, we must first determine exactly which of the plaintiffs claims properly form a part of that inquiry. Because the district court dismissed this case on summary judgment, we must review the evidence in the light most favorable to the plaintiff. T.W. Elec. Serv., Inc. v. Pac. Elec. Contr. Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). Yet even under this defer *1126 ential standard, not every allegation must be taken at face value, nor is every factual claim necessarily available to impose potential liability. The majority, regrettably, appears to assume the opposite, for its analysis hardly considers the suitability of McGinest’s allegations. The court’s opinion appears not only to presume that all facts are true, but that every allegation is admissible evidence of a hostile work environment upon which liability may be based. There is no recognizable legal support for this approach.

Specifically, my review of our precedent indicates that there are at least two kinds of allegations that may not be considered at summary judgment as evidence of liability for a particular hostile work environment claim: First, if any distant act “was no longer part of the same hostile environment claim, then the employee cannot recover for the previous aet[].” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 , 122 S.Ct. 2061 , 153 L.Ed.2d 106 (2002). Second, claims that amount to mere “conclusory allegations” are insufficient to merit consideration. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1116 (9th Cir.2003). With these principles in mind, I believe it is necessary to undertake a careful review of McGinest’s numerous allegations before one may fairly judge the strength of his Title VII claim.

1

GTE urges that the events involving supervisor Noson must be excluded as distant acts beyond the statutory scope of the rest of McGinest’s hostile work environment claim. Title VII does indeed require that a “charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 1 42 U.S.C. § 2000e-5(e)(1). Of course, we must not engage in overly literal interpretations of this statute of limitations. See Morgan, 536 U.S. at 115-21 , 122 S.Ct. 2061 . So the simple fact that some of the alleged discriminatory acts occurred outside the limitations period does not automatically preclude their admission. Rather, “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.” Id. at 105 , 122 S.Ct. 2061 .

a

The majority, however, appears to take this concept to an extreme, implying that so long as any single act occurs within the statute of limitations, all alleged acts — no matter how far in the past — become part of the same hostile work environment claim. It dismisses the statute of limitations argument in a footnote, and explicitly considers Noson’s conduct because it is merely “possible” that it functioned as part of the same claim. Maj. Op. at 1114 n. 6. It is our duty faithfully to apply controlling precedent, and I do not believe that Morgan’s threshold can be so pitifully low. Indeed, I believe the majority’s “possibly part of the same claim” standard eviscerates Morgan’s limitation.

To the contrary, I believe Morgan establishes a workable and relatively stringent standard: “if a [distant] act ... had no relation to the [recent] acts ..., or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environ *1127 ment claim, then the employee cannot recover for the previous acts.” 2 Morgan, 536 U.S. at 118 , 122 S.Ct. 2061 . Employers retain additional protections beyond even this principle because distant acts alleged as part of a single hostile work environment claim also remain “subject to waiver, estoppel, and equitable tolling when equity so requires.” Id. at 121 , 122 S.Ct. 2061 (internal quotation omitted).

With respect, while the court’s opinion formally recognizes this language, it fails to apply it. The majority appears to argue that we need not take Morgan seriously because “neither the district court nor the parties had the benefit of’ that decision. Maj. Op. at 1114 n. 6. This is irrelevant. Morgan imposes a rule of law establishing when a particular fact may support a legal claim. And, of course, “[o]ur duty is to interpret the law.” Seaman v. Comm’r of Internal Revenue, 479 F.2d 336, 338 (9th Cir.1973).

The majority also emphasizes that Morgan deals with an employer’s “liability.” Maj. Op. at 1114 n. 6 (emphasis in original). I am unable to recognize the significance of such a distinction, or why it would counsel for application of the majority’s nearly nonexistent threshold. The district court’s summary judgment order, which we now review on appeal, determined precisely the issue of GTE’s potential liability. Morgan is thus directly relevant, and I respectfully believe that we must determine which of McGinest’s assertions are properly encompassed in his hostile work environment claim before determining whether that claim properly survives summary adjudication. For it is clearly incorrect to consider every claim a plaintiff makes — no matter how stale or unsupported — in adjudicating a motion for summary judgment. See Morgan, 536 U.S. at 118 , 122 S.Ct. 2061 ; Hernandez, 343 F.3d at 1116 .

Of course, determining the scope of events that may be considered for purposes of establishing liability does not affect Federal Rule of Civil Procedure 16 and the admissibility of stale evidence for other purposes. For example, an utterance, though time barred for purposes of liability, may be admissible to challenge the credibility of a witness as a prior inconsistent statement. See Fed.R.Evid. 613.

But summary judgment is about establishing liability. Thus, I must respectfully disagree with the majority’s implication that both Morgan and Lyons v. England, 307 F.3d 1092 (9th Cir.2002) might be extended to allow time-barred evidence to be used at summary judgment as “background evidence” of a hostile work environment claim. See Maj. Op. at 1114 n. 6. The quoted language from Morgan , and the entire Lyons opinion, dealt only with discrete act claims. In such cases, a plaintiff may rely on time-barred evidence as a “background” to help establish that an adverse employment decision was actually based on discriminatory animus. See Lyons, 307 F.3d at 1110 (“In the context of a racial disparate treatment claim, admissible background evidence must be relevant to determine the ultimate question: whether the defendant intentionally discriminated against the plaintiff because of his race.” (internal quotations and edit marks omitted)).

However, “[hjostile environment claims are different in kind from discrete acts.” Morgan, 536 U.S. at 115 , 122 S.Ct. 2061 . *1128 Under Morgan , evidence of a hostile work environment may extend beyond the statute of limitations period if it is related. See id. at 118, 122 S.Ct. 2061 . But if evidence is un related to a claim, it must necessarily be irrelevant to that same claim. See, e.g., Eclipse Assocs. v. Data General Corp., 894 F.2d 1114, 1119 (9th Cir.1990) (equating “unrelated” with “irrelevant”). So evidence that is time-barred under the Morgan standard cannot be considered at summary judgment because it is simply not relevant to the question of whether wholly unrelated conduct amounts to a hostile work environment. The very term “background evidence” makes little sense in this context because no “background” of discriminatory animus can be established from unrelated, irrelevant activity. Such evidence may well have triggered liability in the past, but that was liability upon which the plaintiff declined to act. Allowing consideration of stale, unrelated events as “background evidence” at summary judgment guts the concept of a statute of limitations in the hostile work environment context, and only serves as a backdoor method by which to introduce time-barred statements to avoid summary dismissal.

I also find no basis for the assertion that we lack facts necessary properly to interpret Morgan . Maj. Op. at 1114 n. 6. The record includes detailed information regarding Noson’s actions, as amply related by the majority’s opinion. The district court made specific findings regarding GTE’s response, and when and where the alleged conduct occurred, including the fact that it “took place seven years before McGinest filed his EEOC complaint.” Thus, unlike the majority, I feel obligated to determine whether McGinest’s claims regarding Noson are time-barred under a standard stringent enough to comply with Morgan’s dictates.

b

McGinest’s claims involving Noson occurred in the late 1980s culminating in Noson’s dual apologies, as requested by GTE, in 1990. McGinest makes no further allegation of objectionable conduct by No-son since those apologies. The next formal notice of discriminatory conduct occurred after McGinest filed his EEOC complaint in 1997. In fact, McGinest himself alleges no discrimination of any kind between 1990 and 1995, when he claims to have been denied equal bonus pay. Construed as liberally as possible, 3 no less than 1,500 days elapsed between the successful resolution of Noson’s behavior and all other alleged misconduct. Strikingly, 1,500 days amounts to more than eight full, consecutive Title VII statutory limitations periods. See 42 U.S.C. § 2000e-5(e)(l). Each of the exclusions set forth in Morgan , therefore, apply.

First, the acts involving Noson cannot reasonably be understood to have any “relation to” the subsequent allegations setting forth a hostile work environment claim. During the intervening several years, McGinest received at least one change in job title and at least one transfer, such that he no longer worked with or for Noson, and no longer worked at the same GTE location. In fact, the only relationship between these distant acts and all the other alleged conduct is that (1) they were discriminatory; and (2) GTE employed McGinest throughout.

Contrary to the majority’s implication, I do not believe these facts alone can estab *1129 lish a sufficient “relation” as that term has been defined by the Supreme Court. See Morgan, 536 U.S. at 118 , 122 S.Ct. 2061 . This is because every hostile work environment claim is by definition asserted against a single employer for discriminatory conduct. Thus, the majority’s version of “relation” would be satisfied even if a plaintiff alleged only two instances of differing forms of offensive conduct, perpetrated by different people, in different locations, separated by twenty-five years.

The Supreme Court has not yet given us specific guidance on the precise contours of a sufficient relation, so, for now, this is our job. Perhaps evidence of adequate relation might consist of the following: 4 an identity of offenders, an identity of location, an identity of a sufficiently distinct mode of harassment, or a reasonable identity of time in relation to the applicable statute of limitations. MeGinest failed to submit any such evidence. The offenders differed, the place of the offense differed, and, even if all the alleged conduct was discriminatory by nature, the particular form of abuse differed. And, taken in the light most favorable to MeGinest, there is no reasonable identity of time. Morgan itself provides a guiding example. Based on a 300 day statute of limitations, the Court concluded that conduct extending over a 400-day period' — even if separated by 300 days within that time — reasonably could be construed as part of the same claim. Id. at 118 , 122 S.Ct. 2061 . In McGinest’s case, discriminatory conduct separated by at least 1,500 days cannot be understood to present a reasonable identity of time in relation to the 180-day statute of limitations.

Second, it is conceded that GTE engaged in “certain intervening action” to prevent Noson’s conduct from reoccurring. Id. For, while GTE concluded that there was no racial discrimination, it nonetheless required Noson to apologize. Perhaps MeGinest may have preferred a stronger response from GTE. But the fact that there are no allegations of harmful conduct by Noson — or by anyone else for several years — necessarily establishes that GTE’s intervening response was at least sufficient to maintain an acceptable work environment for eight full, consecutive exhaustions of the statute of limitations. 5

Finally, if Noson’s conduct created a hostile work environment in 1990, even despite GTE’s response, MeGinest had by 1995 waived his right to bring any resulting Title VII claim many times over. It is *1130 contrary to the principles of equity to allow MeGinest to include these allegations as part of a hostile work environment claim arguably “redeveloping” nearly five years later. For, “when [a] delay is caused by the employee, .... the federal courts have the discretionary power to locate ‘a just result’ in light of the circumstances peculiar to the ease.” Id. at 121 , 122 S.Ct. 2061 (internal citations and quotations omitted). It might be one thing if discrete acts making up the hostile work environment claim continued at regular intervals for a period significantly longer than the 180-day limitation. Yet we should not countenance McGinest’s attempts to revive the Noson allegations when, after at least 1,500 days of experiencing acceptable working conditions, he failed to alert the EEOC and failed to file suit. He should not now retroactively invoke these claims after so long a period of apparent calm.

For these reasons, I respectfully disagree with the majority’s conclusion that Noson’s conduct may form the basis for McGinest’s present hostile work environment claim. Instead, I believe they are excluded by § 2000e-5(e)(l).

2

GTE would also exclude certain factual claims as mere “conclusory allegations.” Hernandez, 343 F.3d at 1116 . The majority briefly dispenses with this argument. See Maj. Op. at 1113 n. 5 (accepting McGi-nest’s testimony because it “would suffice to enable a reasonable trier of fact to conclude that discrimination had occurred, without the need for further corroborating evidence”). The majority apparently concludes that MeGinest set forth sufficient factual detail in his allegations so as to survive summary judgment. See id. (relying on United States v. One Parcel of Real Prop., 904 F.2d 487, 491-92 (9th Cir.1990) (denying summary judgment for the government in a land forfeiture case)). However, One Parcel is not a Title VII case, where the analysis is somewhat more nuanced. For, in the hostile work environment context, MeGinest must demonstrate something more than evidence suggesting that he experienced hostility. He must also sufficiently demonstrate that any hostility arose “because of [his] race.” 42 U.S.C. § 2000e-2(a)(l); see Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158 , 1174 (9th Cir.2003) (holding, in workplace sexual harassment context, that even if supervisor-employee sexual relations occurred, “we require more than conclusory allegations that the supervisor proposed a sexual liaison and the employee responded to the overtures in order to protect her employment interests”). A plaintiff might allege sufficient detail to suggest that a hostile event occurred, but fail to provide anything more than the unsupported conclusion that race motivated it. I am not certain whether the majority fully considered this latter requirement. For, in my view, two of McGinest’s claims appear to fail under this standard.

a

First is the incident involving McGi-nest’s truck tire. No one disputes that he was involved in a serious automobile accident due to a blown-out tire. MeGinest alleges that not long before the accident, he requested and was denied new tires by GTE mechanics — even though at least one supervisor agreed that they looked bald. MeGinest arguably produced sufficient evidence to suggest that such a denial occurred.

Yet MeGinest includes this incident in his hostile work environment claim not because an alleged denial occurred, but because such a denial was based on his race. Unfortunately, however, MeGinest *1131 submitted no evidence to substantiate this charge. He does not claim, for instance, that the mechanics directly said or did anything to him to suggest that there was a racial component to such a denial. Nor does he present any circumstantial evidence that GTE provided mechanical services in a discriminatory manner.

Rather, McGinest relies only on the deposition testimony of Brand, which offers no support for his claim. Brand, who is white, did agree that sometimes it “seem[edj” that vehicles driven by African-Americans were not “given the same level of maintenance as vehicles driven by white employees.” However, he explicitly noted that this was only one possible interpretation of the mechanic’s behavior — one that even he acknowledged was not necessarily supported by the facts. For Brand conceded that some of the same mechanics treated him poorly also, while they treated at least one other African-American employee “pretty well.” Ultimately, the best that Brand could conclude was that “it could have been racial. It could have been just personality.” By Brand’s own admission, then, his direct experience and resulting testimony could not form a sufficient supporting basis for McGinest’s allegations.

McGinest’s accident was undoubtedly a traumatic experience. And given some of his experiences at GTE in other contexts, he might understandably suspect wide-ranging racial discrimination. Nevertheless, our precedent makes clear that individual claims of discriminatory treatment must be “supported by facts.” Id. With respect to this allegation, at least, McGi-nest has failed to provide such evidence, and I do not believe we may consider it as part of his overall hostile work environment claim.

b

McGinest’s claim of differential bonus overtime pay presents a similar problem. McGinest submitted time sheets showing that several white employees received more overtime pay than McGinest did over a (roughly) six-month time period in 1996. 6 Nevertheless, as noted above, McGinest must demonstrate not only that this differential existed, but that it arose on account o/his race. See 42 U.S.C. § 2000e-2(a)(l) (prohibiting discrimination “because of such individual’s race”).

Here, McGinest claims that there was an “unwritten rule” regarding the payment of “relief supervisor pay,” - whereby arriving even five minutes early would earn employees a full hour of wages. While his immediate supervisor, Roberts, allowed others to claim this bonus, he is alleged to have prevented McGinest from doing so because of McGinest’s race. 7 On the occasions McGinest attempted to note the bonus overtime on his time sheets, he alleges that Roberts erased it. While this additional information may provide context for McGinest’s claims, they still rest on the conclusory allegation that the wage differential arose on account of race.

*1132 Nevertheless, the record does not support McGinest’s version of events. First, McGinest admitted in a deposition that the time sheets he submitted show no evidence of any relevant erasures. 8 Most damagingly, McGinest’s own time sheets conclusively demonstrate that he actually received both overtime pay and “relief supervisor” pay. This clearly contradicts his assertion that he was completely barred from receiving such pay.

McGinest attempts to find support in Begg’s admission that GTE may have allowed the bonus overtime practice sometime prior to 1993. However, McGinest appears selectively to read Begg’s testimony. While Begg may have known of this practice in the past, he stopped it in 1993 when he became manager. And McGinest specifically alleged that his denials occurred from 1995 to 1997, well after Begg testified that the practice ended. In other words, McGinest’s allegations find no support in Begg’s testimony.

Notably, the EEOC investigated this complaint and determined that McGinest “had in fact been paid his due relief pay.” The district court, as well, specifically found that there was “no credible evidence of a differential application of any ‘unwritten rule’ regarding relief supervisor overtime”' — much less that the differential application arose on account of race. A careful review of the evidence compels the same conclusion: McGinest’s allegations involving the “unwritten” relief supervisor rule are unsupported by Begg’s testimony, and directly contradicted by McGinest’s own time sheets. And to the extent that McGinest’s time sheets show that he received less overtime than four other white employees, he presented neither direct nor circumstantial evidence that the wage differential arose on account of race. Therefore, I believe this allegation must be excluded from our review of the totality of the circumstances, and I must dissent from the majority’s use of it.

3

On the other hand, GTE’s other contentions are unavailing. McGinest’s remaining claims must be included as part of the “totality of the circumstances” we properly may consider. For example, at least some portion of the bathroom graffiti (“n — ,” 9 “P.O.N.T.I.A.C.”), the banner graffiti (“n— History Month”), Hughes’s comments (referring to McGinest as “a stupid n — ”), Ledbetter’s comments (criticizing McGi-nest while comparing him to “the other colored guy who used to work here”), De-Leon’s comments (referring to McGinest as “mammy”), and Talmadge’s comments (saying to McGinest, “I’ll retire before I work for a black man”) may all reasonably be understood as explicitly, racially hostile.

DeLeon’s use of the term “Aunt Jemi-ma” may also serve as evidence of racial hostility sufficient to survive summary judgment. DeLeon did not direct the phrase at McGinest himself, but rather to a white coworker and friend of McGinest’s. Perhaps DeLeon truly did lack a racially hostile motive in his use of the nickname. However, a reasonable factfinder could conclude that it was meant to isolate McGi- *1133 nest by referring disparagingly, in his presence, to his friend as an African-American woman. Moreover, use of the term itself may reasonably be construed as racially hostile, whether directed at McGinest or not. See, e.g., Woods v. Graphic Communications, 925 F.2d 1195, 1202 (9th Cir.1991) (upholding hostile work environment judgment where prevailing plaintiff “was surrounded by racial hostility, and subjected directly to some of it”). Roberts’s comments upon learning of the removal of the racist bathroom graffiti (“Oh well, I guess I’ll have to write it again. Ah, why can’t we all just get along?”) arguably exhibited racial hostility as well. While GTE claims that Roberts did not know that the graffiti was racist in nature, this only creates a material factual dispute precluding summary judgment.

Finally, McGinest offered sufficient supporting evidence, including an affidavit from coworker Brand, from which a reasonable factfinder could conclude that at least some employees, including Talmadge and Frick (“I refuse to work for that dumb son of a bitch”), may have refused to work with McGinest because of his race.

B

Once identifying which assertions are relevant and properly supported, we must consider whether McGinest presented sufficient evidence to survive summary judgment on his hostile work environment claim. Because the set of facts I review differs from that of the majority, I must conduct an independent analysis.

Three important principles bear upon the inquiry. First, because McGinest appeals from summary judgment dismissal, we must review the evidence in the light most favorable to him. T.W. Elec., 809 F.2d at 630-31 . Second, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998) (internal quotation omitted). 10 Finally, McGinest’s evidence must “prove that the conduct at issue was not merely tinged with offensive ... connotations, but actually constituted discrimination] ... because of ... [race].” Id. at 81 , 118 S.Ct. 998 (emphasis in original, internal quotation omitted).

1

With these principles in mind, I agree with the district court that this case presents a “close question” of whether a proper review of McGinest’s admissible evidence suggests that GTE may be held liable in this case. Ultimately, however, I am satisfied that McGinest presented a triable issue of material fact on whether he was subjected to a hostile work environment. First, the opprobriousness of most of the comments, and the frequency with which they arose, could lead a reasonable fact-finder to conclude that together they amounted to more than “a mere offensive utterance.” Harris, 510 U.S. at 23 , 114 S.Ct. 367 ; Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir.2001) (describing “n — ” as “perhaps the most offensive and inflammatory racial slur in English”). Here, the repeated invocation of highly offensive language in a variety of contexts may be understood to have created a humiliating atmosphere as seen from the objective perspective of a reasonable Afri *1134 can-American. Oncale, 523 U.S. at 81, 118 S.Ct. 998 ; Harris, 510 U.S. at 21 , 114 S.Ct. 367 (requiring a hostile work environment to be “severe or pervasive enough to create an objectively hostile or abusive work environment”). Further, at least the stated refusal of certain colleagues to work with McGinest because of his race may have “unreasonably interfere[d] with [McGinest’s] work performance.” Harris, 510 U.S. at 23 , 114 S.Ct. 367 . Finally, McGinest’s frequent complaints, both formal and informal, reasonably allow the conclusion that he “subjectively perceive[d] the environment to be abusive.” Id. at 21 , 114 S.Ct. 367 .

Even if a hostile working environment exists, “an employer is only liable for failing to remedy harassment of which it knows or should know.” Fuller, 47 F.3d at 1527 . As the majority correctly notes, when a supervisor engages in harassing conduct, the employer generally may be held “vicariously liable for a hostile environment created by a supervisor.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 , 877 (9th Cir.2001). In supervisor-harassment circumstances, then, GTE may not defend for lack of knowledge of the conduct. Therefore, no notice is required for the comments made by supervisors Ledbetter and Roberts. Hughes is a somewhat more complicated case. Both McGinest and the EEOC describe Hughes as “[MeGinestJ’s Manager,” but GTE challenges whether he was McGi-nest’s manager or just a manager. This only demonstrates that there is genuine factual dispute on the issue. At this stage of the proceedings, then, I agree that we must accept McGinest’s allegations as true and that GTE would be vicariously liable for Hughes’s comments as well. Still, comments by these three men make up a relatively small portion of McGinest’s allegations.

2

Employers are not necessarily vicariously liable for coworker harassment, however, in which case lack of notice can defeat hostile work environment claims. Swinton, 270 F.3d at 803 . McGinest alleges that he notified his immediate supervisors of at least one instance of offensive bathroom graffiti, of DeLeon’s comments, of Talmadge’s comments, and of the stated refusal of some employees to work with him. GTE notes that many of these incidents were not formally reported to “management.” I need not determine whether this distinction generally makes a difference because in this case, GTE’s own anti-discrimination policy specifically directs employees to discuss discrimination concerns “with your supervisor or human resources representative” (emphasis added). In general, employers “are liable for failing to remedy or prevent a hostile work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Swenson v. Potter, 271 F.3d 1184, 1202 (9th Cir.2001) (emphasis in original, internal quotations omitted). Because McGinest followed GTE’s own instructions for reporting discrimination, at least management reasonably “should have known” of the existence of the complaints.

Allegations involving the additional bathroom graffiti and the banner graffiti were not specifically reported by McGi-nest. But in each case, McGinest alleges that the offensive markings appeared in areas used by, and accessible to, supervisory employees, which GTE does not dispute. Therefore, a reasonable factfinder could conclude that GTE “in the exercise of reasonable care should have known” of the existence of the graffiti. Id. (emphasis omitted). This is particularly true for graffiti that appeared after McGinest filed his complaint. Thus, I would conclude *1135 that GTE may not claim lack of notice for any of McGinest’s admissible allegations.

3

There remains one additional ground upon which GTE might succeed on summary judgment. Where, as here, there is evidence suggesting that a company had sufficient notice of discriminatory conduct, it generally may avoid liability if it adequately responded to the situation. Fuller, 47 F.3d at 1527 . This may be so whether the offending employee is a coworker or a manager, although the burdens of proof differ. See Swinton, 270 F.3d at 803 (holding, in coworker harassment context, that plaintiff must prove “that the employer knew or should have known of the harassment but did not take adequate steps to address it”); Nichols, 256 F.3d at 877 (holding, in supervisor harassment context, that an employer can partially defend by proving that it “exercised reasonable care to prevent and correct promptly any ... harassing behavior”). 11

In considering adequacy, we examine a company’s response in its ability to “stop harassment by the person who engaged in harassment.” We must also consider whether that response might “persuade potential harassers to refrain from unlawful conduct.” Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991).

In this case, GTE did formally respond to some of McGinest’s complaints. And when GTE acted to address McGinest’s specific allegations, discriminatory conduct from that particular employee appears to have ceased. For example, when GTE eventually learned the identity of a witness to Hughes’s comments, it immediately reprimanded him, and there are no further allegations of misconduct against him. Likewise, when GTE spoke to DeLeon about the nicknames he used, DeLeon, too, ceased the offensive conduct. Finally, when McGinest complained to management about the bathroom graffiti, GTE promptly removed it.

Taken individually, GTE’s responses might perhaps appear reasonable. 12 Indeed, there is no question that they worked to cease any additional actionable conduct by the offending employee. Nevertheless, despite GTE’s efforts, opprobrious comments and behavior continued with some regularity from 1995 through 2000. And considering the totality of the circumstances, as we must, a reasonable factfin-der could conclude that GTE’s corrective measures were inadequate for failing “to impose sufficient penalties to assure a workplace free from ... harassment.” Id. *1136 In other words, the totality of the circumstances may suggest that the discriminatory conduct still occurred with sufficient frequency and severity such that GTE’s remedies did not reasonably “persuade potential harassers to refrain from unlawful conduct.” Id. This precludes summary judgment for GTE on these grounds. Harris, 510 U.S. at 23 , 114 S.Ct. 367 .

C

Ultimately, my review of McGinest’s admissible evidence, considering the totality of the circumstances, reveals a “close case” indeed. GTE made efforts to respond to McGinest’s complaints, after which no one particular aggressor continued harassing McGinest. But considering the claim as a whole, McGinest’s allegations present evidence of an overall work environment that may have been sufficiently hostile to trigger Title VII’s protections.

Because I believe that we must exclude some of McGinest’s allegations either as time barred or as merely conclusory, I am regrettably unable to concur in the majority’s analysis. While I do agree that McGi-nest’s claims may go forward, I must nonetheless dissent from the majority’s unwillingness properly to examine the scope of that inquiry. The majority’s opinion sets a dangerous precedent whereby plaintiffs who present a kitchen sink’s worth of unsupported and time-barred allegations can survive summary judgment because “taken all together” they somehow mesh with each other so as to deny an employer’s efforts to avoid liability without a trial. Nevertheless, even upon a more soundly based analysis, triable issues of material fact remain in this case, and I therefore concur in the majority’s decision to reverse the district court’s summary judgment dismissal of the hostile work environment claim.

II

McGinest also claims that GTE failed to promote him to the position of Outside Plant Construction Installer Supervisor on account of his race, a Title VII disparate treatment claim. See 42 U.S.C. § 2000e-2(a); Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir.1988) (describing disparate treatment as being “singled out and treated less favorably than others similarly situated on account of race” (internal quotation omitted)).

In support of this claim, McGinest invoked the familiar McDonnell Douglas presumption. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). I agree with the majority that the litigants appear somewhat confused about the use of the McDonnell Douglas presumption and how it relates to other evidence of discrimination. And because these burden-shifting issues are somewhat complicated, like the majority, I, too, engage in a complete analysis of the issue, but reach a different conclusion. 13

*1137 A

There is no question that McGinest is a member of a protected class, that he applied to and was qualified for the supervisor position, and that he was rejected from that position.

GTE disputes whether McGinest satisfied the fourth factor, “that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802 , 93 S.Ct. 1817 . For, while a white supervisor received the job, GTE claims that because it was only a lateral transfer, the supervisor was not “treated more favorably.” Chuang v. Univ. of Cal., Davis Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir.2000).

GTE takes an overly literal approach to the question. The Supreme Court in McDonnell Douglas itself indicated that the test must be practically applied. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817 . And here, GTE does not contest that McGinest qualified for a favorable promotion, and that the same job went to a white candidate instead. Therefore, I agree that McGinest successfully invoked the presumption.

GTE may rebut, however, by setting forth “some legitimate, nondiscriminatory reason for the challenged action.” Chuang, 225 F.3d at 1123-24 . GTE presented evidence that a “salary/hiring freeze” was in effect at the time, prohibiting outside hiring and internal promotions accompanied by increased pay. Salary and hiring freezes, of course, are common in the business world. On its face, then, this is a legitimate, nondiscriminatory reason for failing to promote McGinest. See Maj. Op. at 1123 (concluding that McGinest “must counter GTE’s explanation that a hiring freeze accounted for its failure to promote him”); see also, e.g., Jones v. Fla. Power Corp., 825 F.2d 1488, 1492 (11th Cir.1987) (upholding factual finding that plaintiffs job denial “was not the result of racial discrimination but was justified due to a company hiring freeze”). Consequently, we are presented with an explanation that is “legally sufficient to justify a judgment for the defendant,” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981), so the McDonnell Douglas “presumption of discrimination drops out of the picture.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000) (internal quotation omitted).

B

In the absence of the McDonnell Douglas presumption, McGinest’s “burden now merges with the ultimate burden of persuading the court that [ ]he has been the victim of intentional discrimination. [H]e may succeed in this either [ (1) ] directly by persuading the court that a discriminatory reason more likely motivated the employer or [ (2) ] indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256 , 101 S.Ct. 1089 . As to the first method, the majority correctly concludes that McGinest may present either direct or circumstantial evidence of discrimination, so long as it is sufficient to satisfy his ultimate burden. See Desert Palace, Inc. v. Costa, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003).

1

McGinest offers two pieces of evidence directly to prove discrimination. 14 First, *1138 he points to the offensive comments and other evidence that make up his hostile work environment claim. The majority specifically relies on this evidence — or at least on GTE’s “permissive” response to it — to conclude that McGinest meets his burden. However, Ninth Circuit cases involving discriminatory failure to promote have always involved evidence of discrimination among decisionmakers. See, e.g., Lam v. University of Hawaii, 40 F.3d 1551 (9th Cir.1994) (finding evidence that professor who headed appointments committee was biased). Indeed, in the absence of additional evidence, “statements by nondecisionmakers, nor statements by decisionmakers unrelated to the decisional process itself, [cannot alone] suffice to satisfy the plaintiffs burden in this regard.” Price Waterhouse v. Hopkins, 490 U.S. 228, 277 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring); see, e.g., DeHorney v. Bank of Am. Nat'l Trust & Sav. Ass’n, 879 F.2d 459, 467 (9th Cir.1989) (holding that the plaintiff failed to make out a prima facie case of race discrimination when there was no evidence to establish a nexus between the subordinate’s racial slur and the superior’s decision to terminate).

Here, the immediate decisionmaker, Begg, actually recommended hiring McGi-nest, and there are no allegations that he engaged in any discriminatory conduct either before, during, or after he declined to hire him. The salary/hiring freeze decision itself came from upper management, and evidence of harassment among co workers and supervisors at McGinest’s yard simply does not establish discrimination extending to those higher levels. See DeHorney, 879 F.2d at 467 . Neither has McGinest produced any other evidence connecting these decisionmakers to the discriminatory conduct of Hughes, Ledbet-ter, and others, nor has he suggested that GTE’s upper management intended to discriminate against him by instituting the freeze. There may be a triable issue of fact as to whether GTE’s responses to the allegedly hostile work environment were insufficient for purposes of summary judgment. But this does nothing to establish that GTE upper management had any discriminatory motive for failing to promote McGinest.

Indeed, the evidence suggests the contrary in this case. GTE management responded to — and remedied — each individual instance of discrimination of which it formally became aware, including Hughes’s comments, DeLeon’s comments, and even Noson’s behavior. While these responses may have been insufficient to rebut an overall hostile work environment claim, they certainly do not suggest that GTE management acted with any kind of discriminatory intent. Therefore, unlike the majority, I do not believe that McGi-nest may rely on his admissible evidence of a hostile work environment to bootstrap his disparate treatment claim.

Both McGinest and the majority also rely on evidence that GTE may have employed a disproportionately small number of African Americans. The majority accepts this allegation. Maj. Op. at 1124. But I, respectfully, cannot. First, there is no such statistical evidence in the record, even though McGinest presumably had an opportunity to develop it during discovery. Indeed, the district court denied McGi-nest’s request at summary judgment to take judicial notice of such information. This ruling was clearly correct, as the information was both reasonably disputed by GTE and was not readily verifiable. Fed.R.Evid. 201(b). The district court further concluded that McGinest’s statistics *1139 were irrelevant because they were not accompanied by any analysis and because they involved a different county than where he actually worked. Such an evi-dentiary ruling is reviewed for abuse of discretion, of which I find none. See Domingo v. T.K., 289 F.3d 600, 605 (9th Cir.2002) (noting limited review “even when the rulings determine the outcome of a motion for summary judgment”).

Moreover, this kind of data would shed little light on McGinest’s disparate treatment claim because it says next to nothing about whether GTE used its neutrally applicable salary/hiring freeze in an effort to discriminate against him. Rather, it is more properly understood as evidence of disparate impact, tending to show that the effects of GTE’s employment practice fell more harshly on him. See Raytheon Co. v. Hernandez, — U.S. --,-, 124 S.Ct. 513, 519 , 157 L.Ed.2d 357 (2003) (“This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact.”).

Unfortunately, McGinest raised the issue of disparate impact for the first time on summary judgment, when he asked the court to take judicial notice of the statistics. Because McGinest failed to “plead the additional disparate impact theory in [his] complaint[ ], or ... to make known during discovery [his] intention to pursue recovery on the disparate impact theory,” he may not now rely on it. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2001). In light of this failure, and because GTE has “offered a legitimate, non-discriminatory reason for its actions so as to demonstrate that its actions were not motivated by[McGinest’s race],” consideration of this evidence would require us to “stray[ ] from [our] task by considering not only discriminatory intent but also discriminatory impact.” Raytheon, — U.S. at -, 124 S.Ct. at 521 . This, the Supreme Court has told us we cannot do. See id.

2

Alternatively, McGinest attempts to meet his burden “indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256 , 101 S.Ct. 1089 . McGinest first asks us to take judicial notice of reports of GTE’s financial health around the time of the salary/hiring freeze. I agree with the majority that we must deny this motion, as these reports are not “capable of accurate and ready determination” as required by Fed.R.Evid. 201(b). 15

McGinest is then left with a simple attack on the credibility of GTE’s witnesses, arguing that the lack of documentary evidence of a freeze suggests that its explanation is “unworthy of credence.” Burdine, 450 U.S. at 256 , 101 S.Ct. 1089 . In reversing the district court, the majority, too, relies heavily on “the absence of any documentation confirming that a hiring freeze was in place during the relevant time period.” Maj. Op. at 1123

This, of course, is not even evidence at all. See Saint Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993) (“It is not enough, in other words, to disbelieve the employer.... ” (emphasis in original)). Rather, it is simply an attack on the form of the admissible evidence GTE submitted. It is *1140 axiomatic that adjudicators “must follow the same rules regarding documentary evidence as [those] regarding testimonial evidence.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000); see also, e.g., Vera-Villegas v. INS, 330 F.3d 1222, 1233 (9th Cir.2003) (holding that “documentary evidence is judged by the same credibility standards that apply to testimonial evidence”). 16

But the majority appears somehow to have transformed its disparagement of GTE’s testimonial evidence into McGi-nest’s “[p]roof” that is sufficient to carry his burden of persuasion. See Maj. Op. at 1124 (describing the testimonial nature of GTE’s evidence as “[pjroof that the defendant’s explanation is unworthy of credence” (internal quotation omitted)). This may be a neat trick, but it is directly contrary to Supreme Court precedent, for it clearly “disregards the fundamental principle ... that a presumption does not shift the burden of proof, and ignores [the Supreme Court’s] repeated admonition that the Title VII plaintiff at all times bears the ultimate burden of persuasion.” Hicks, 509 U.S. at 511 , 113 S.Ct. 2742 (internal quotation omitted).

Indeed, the majority’s rejection of GTE’s explanation can only be described as an independent credibility determination. 17 But again, direct Supreme Court authority stands in the way. Because GTE’s burden of submitting a neutral hiring justification “is one of production, not persuasion[,] it ‘can involve no credibility assessment.’ ” Reeves, 530 U.S. at 142 , 120 S.Ct. 2097 (quoting Hicks, 509 U.S. at 509 , 113 S.Ct. 2742 ). Neither McGinest nor the majority may simply east aspersions on GTE’s non-diseriminatory explanation. Id. Rather, McGinest must present evidence that it is untrue, and this he has not done.

Even if an examination of GTE’s “trustworthiness” were proper, I would find no fault. Two GTE employees, Begg and Na-kamura, testified that they had direct knowledge of the freeze, while two other employees, Brand and Valle, were familiar with it. Corroborating this testimony is the undisputed fact that the man hired in McGinest’s place did not receive a promotion or a pay increase. McGinest was unwilling or unable even to produce evidence, circumstantial or otherwise, that GTE hired or promoted anyone else during the relevant time period.

3

Once the McDonnell Douglas presumption vanished in the face of GTE’s neutral hiring justification, McGinest failed to produce any admissible, relevant evidence of a discriminatory failure to promote him. Neither did he present any evidence suggesting that GTE’s neutral explanation was “unworthy of credence.” Burdine, 450 U.S. at 256 , 101 S.Ct. 1089 . Therefore, I must respectfully dissent from the majority’s decision to reverse the district court’s dismissal of this claim.

Ill

Finally, McGinest also brings suit for retaliatory failure to promote. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer *1141 to discriminate against any of [its] employees ... because he has opposed any [discriminatory] practice.”)- I agree with the majority’s reasoning and conclusion that we must uphold the district court’s dismissal of this claim.

IV

In conclusion, I agree that we must reverse on the hostile work environment claim, but for reasons different from the majority. I respectfully disagree with the majority on the disparate treatment claim, and would affirm. Finally, I concur in the court’s decision to affirm summary judgment dismissal on the retaliatory failure to promote claim.

. The statute extends this limitations period to 300 days in certain circumstances not relevant here. See § 2000e-5(e)(l).

. While I may agree with the majority that this rather broad standard has yet to be fully fleshed out, I must respectfully disagree with its assertion that such imprecision somehow turns clear Supreme Court precedent into nothing more than an "implication].” See Maj. Op. at 1114 n. 6.

. As discussed below, I do not believe we may consider McGinest's unequal pay claim. However, for purposes of this analysis, I assume even that these facts may form part of a single hostile work environment claim.

. This list represents my own effort at interpreting and applying Morgan’s relation requirement. Morgan, 536 U.S. at 118 , 122 S.Ct. 2061 . It is not necessarily exhaustive, nor is any one factor necessarily sufficient.

. The majority suggests that GTE’s internal understanding of the nature of the conduct somehow displaces the undisputed fact that it actually took intervening action — twice. See Maj. Op. at 1114 n. 6. It is irrelevant that GTE described Noson’s behavior as "shoptalk,” for that subjective characterization did not change the fact that it nonetheless demanded that Noson put a stop to it. Under the majority’s theory, a company which, in an effort to avoid a potential lawsuit, undisputably responded to and remedied an instance of offensive conduct may nevertheless be liable for creating a hostile work environment because ''avoiding a lawsuit” presumably would not provide the basis for a sufficiently "[jsatisfac-toiy response.” Maj. Op. at 1114 n. 6.

The majority cites no legal authority for the quasi-existential proposition that the subjective motivation for an action might somehow undermine the very existence of the action itself. Thus, with respect, I find no basis for the majority's conclusion that GTE ''did not respond” to Noson’s conduct. Maj. Op. at 1121. The issue here is not whether MeGi-nest felt validated by his employer, but whether GTE may remain liable for conduct it intended to stop, and did stop for at least four years. See Morgan, 536 U.S. at 118 , 122 S.Ct. 2061 .

. In the absence of additional evidence, the simple fact that some hourly employees receive more overtime than others would appear to reveal little beyond the fact that some people may indeed work more hours than others. In this sense, pay differentials arising from hourly positions would seem to carry less weight than those arising from analogous salaried positions.

. According to McGinest, this practice meant that he received no compensation for any portion of the hour he actually worked, much less a bonus for the entire hour. In other words, he claims that he was denied pay for work actually completed. Regardless, this distinction does not affect the inquiry. For evidence that McGinest was denied actual pay or bonus pay on account of his race would support his hostile work environment claim.

. McGinest speculated that the EEOC might have time sheets from periods in which Roberts erased certain entries. Nevertheless, they do not appear in the record, and the time sheets McGinest did submit cover close to seven months' worth of work — almost twenty percent of the total time during which the erasures supposedly occurred.

. For the sake of decorum, and because the court's opinion accurately recites the actual words in the record, I shall avoid the needless repetition of inflammatory language. I therefore use "n — " in place of the offensive racial slur.

. While Oncale dealt with sexual harassment, the Supreme Court instructs that "[hlostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment.” Morgan, 536 U.S. at 116 n. 10, 122 S.Ct. 2061 .

. In the supervisor context, a company must additionally demonstrate that an employee failed to take reasonable steps to pursue company remedies in order to avail itself of this defense. See Nichols, 256 F.3d at 877. For purposes of simplicity, however, I address only the “adequate response” question for each allegation.

. One might dispute whether the two-year gap between Hughes’s comments and GTE’s response was reasonable. However, Hughes absolutely denied making any racist comments at all, and GTE was not provided with any witnesses to the event. And as soon as it learned the identity of a witness, GTE immediately acted to reprimand Hughes. See, e.g., Holly D., 339 F.3d at 1178 (finding an adequate remedial measure where the defendant immediately responded to a harassment claim after a delay caused, in part, because the plaintiff "declined to provide [evidence] to the investigating committee”). Moreover, in the intervening period, there were no further specific allegations of discriminatory conduct by Hughes. Thus, when viewed within the confines of Hughes’s conduct alone, GTE’s response to the incident appears reasonable. I would note, however, that one of GTE's remedial requirements, that Hughes watch a tape concerning sexual harassment, seems quite puzzling.

. I must admit that I find the majority's analysis somewhat confusing as well. It suggests that the method of analysis is “not particularly significant.” Maj. Op. at 1123. To the extent the majority suggests that the McDonnell Douglas presumption does not provide McGinest with a significant advantage in this context, I disagree. Successful invocation of the presumption, and a subsequent failure of an employer to proffer an adequate, nondiscriminatory explanation, allows a plaintiff to go to trial on less evidence than he or she otherwise could — which is why it is termed a "presumption.” But to the extent the majority takes note of GTE’s nondiscriminatory explanation and thus recognizes that the McDonnell Douglas presumption no longer attaches, I agree with the majority that issues pertaining specifically to the presumption then become “not particularly significant.” Id.

. McGinest actually suggests a third as well: that he was passed over for four other management positions in the past. However, he did not make this allegation before the district *1138 court, and there is no evidence in the record to support it. I therefore do not consider it.

. Moreover, such evidence would be inherently ambiguous in this context. Perhaps GTE’s profit that year suggests that a salary/hiring freeze was unnecessary, and was instead a made-up justification for failing to promote McGinest. On the other hand, perhaps GTE made a profit that year precisely because it was fiscally conservative by, among other things, instituting a salary/hiring freeze.

. Both of these cases happen to concern treatment of evidence by Immigration Judges. I would assert as indisputable that the same principles apply when any judge, including an appellate judge, examines evidence.

. With respect, I am particularly surprised that the majority would weigh the credibility of GTE’s hiring-justification evidence in light of its own admonition that a “court is not empowered to make credibility determinations” at summary judgment. Maj. Op. at 1113 n. 5.