Martinez v. Marin Sanitary Service (349 F. Supp. 2d 1234, 2004)

ORDER

WALKER, Chief Judge.

Defendants Marin Sanitary Service (MSS) and Joseph Garbarino Sr (Garbari-no Sr) move the court for summary adjudication of plaintiff Francisco Martinez’ (Martinez) sole federal claim and to decline supplemental jurisdiction over and dismiss Martinez’ remaining state claims. Doc #42. In opposition to the motion, Martinez relies heavily upon his declaration dated January 14, 2004, and to a lesser extent on his February 15, 2002, deposition testimony. Although the facts recited in Martinez’ declaration and in his deposition testimony are consistent on some matters, the facts recited in the declaration and those in the deposition testimony are materially different in a number of respects. Relying on these inconsistencies, defendants invoke the sham affidavit rule and certain other evidentiary rules to narrow the grounds upon which Martinez can rely to create a triable issue of fact and defeat summary judgment. Despite such narrowing, Martinez’ facts are nevertheless sufficient to survive defendants’ motion for summary judgment on all but one of his claims.

I

The facts as presented by Martinez include substantial inconsistencies. In opposition to the motion for summary judgment, Martinez presents both his February 2002 deposition testimony and his January 2004 declaration. Although the two versions of Martinez’ testimony are consistent with respect to three events that took place in August and September 2000 (the “fall 2000 events”), the two versions are materially different. Specifically, Martinez’ declaration contradicts his deposition testimony regarding events that took place before the year 2000. Martinez’ declaration also contradicts his deposition testimony regarding events that took place subsequent to the fall 2000 events.

A

Martinez is a Mexican-American sanitation worker who has been employed with defendant MSS in San Rafael, California, for approximately twenty-five years. PI Compl (Doc # 1) at 2-3 ¶¶ 3, 6, 11. During the course of this lawsuit, Martinez has continued to be so employed. See id at 3 ¶ 11; Depo Francisco Martinez (Martinez Depo; Decl Ivo Labar (Labar Decl; Doe # 40) at 1 ¶ 3, Exh A; Decl Peter Johnson (Johnson Decl; Doc # 44) at 4 ¶ 10, Exh I) at 6:16-18. Martinez alleges that during the course of his employment with MSS, he repeatedly requested that MSS promote him to a position as a debris box delivery driver; MSS, however, refused to do so. Id. at 3 ¶ 11. Martinez claims that MSS consistently filled his requested job positions with individuals who were not Latinos, and that MSS assigned its Latino employees to the “less desirable” job positions. Id. at 3-4 ¶¶ 12, 15. Although Martinez believes that he last applied for a position as a debris box delivery driver sometime between 1998 and 2002, he does not know exactly when he last' applied for such a position. Martinez Depo at 49:3-13. Martinez also alleges that he frequently experienced offensive racial slurs in the MSS workplace. Pl Compl at 3 ¶ 14.

Martinez’ Declaration: Before the Fall 2000 Events

In conjunction with his opposition to the motion for summary judgment, Martinez presents a declaration. Doc # 46 (Martinez Decl; docketed as “AFFIDAVIT”). Martinez’ declaration is dated January 14, 2004. Id. at 12:19. Martinez asserts in his declaration that he has “heard comments and jokes” directed toward all Latinos throughout his employment at MSS. Martinez Decl at 1 ¶ 3. Martinez further asserts that he began to notice in about 1996 that more derogatory statements about Latinos were' being made at MSS. Id. at 1-2 ¶¶ 3-5. Martinez believes that this coincided with defendant Garbarino Sr taking the position of garbage collection supervisor. Id. at 2 ¶ 5. Garbarino Sr is one of the founders of MSS and has been working in the sanitation business for several decades. Depo Joseph Garbarino Sr (Garbarino Sr Depo; Labar Decl at 1 ¶ 4, Exh B; Johnson Decl at 3 ¶ 7, Exh F) at 11:9-10. Among the offensive terms and phrases that Martinez declares he heard from Garbarino Sr are “fucking Mexican,” “porko Mexicano,” “stupid Mexican,” “I hate Mexicans,” “Mexican fag,” “I am going to fire all the Mexicans” and other offensive references to Latinos as a group, such as “all you Mexicans” or “all of you.” Martinez Decl at 2 ¶ 6. Martinez claims that he “cannot pinpoint how many times [he] heard a derogatory comment made referring to..Mexicans.” Id. at 2 ¶ 7. Such comments, according to Martinez, were made by Garbarino Sr with sufficient regularity that they were simply part of the working environment for Martinez during these years. Id. Martinez declares that these comments were made directly to him or in front of him to and about others. Id. at 2 ¶ 9. Martinez also declares that he has been told by other employees that they have heard racially . charged comments. Id.

In the late 1990s, Martinez asserts in his declaration that he witnessed Garbarino Sr berate several Latino employees with racial slurs. Id. at 6-7 ¶¶ 22-25. Martinez declares that he heard Garbarino Sr use racial epithets when talking to several specific employees. In 1998 or 1999, Martinez heard Garbarino Sr tell Luis Morales, “I hate fucking Mexicans.” Id. at 6 ¶ 23. Also in 1998 or 1999, Martinez asserts that he heard Garbarino Sr tell Geraldo Luna, “I hate Mexicans.” Id. at 7 ¶ 24. And in 1997 or 1998, Martinez asserts that he heard Garbarino Sr yell at Raul Camacho and use derogatory terms regarding “Mexicans.” Id. at 7 ¶ 25. Beginning in 1998, Martinez began to “speak up” when he heard Garbarino Sr make a derogatory remark about Latinos. Id. at 2-3 ¶ 10. Typically, after Garbarino Sr insulted a Latino co-worker, Martinez would wait until the co-worker had left and then would ask Garbarino Sr not to speak about Mexican workers in that fashion or would remind Garbarino Sr that he, Martinez, was of Mexican descent. Martinez Decl at 1-2 ¶¶ 10-11.

Martinez’ Deposition: Before the Fall 2000 Events

Martinez’ deposition testimony, taken in February 2002, is inconsistent in significant respects with the recital of events in this January 2004 declaration. In his deposition, Martinez did not testify to hearing comments and jokes about Latinos throughout his employment. Rather, Martinez testified that “the problem started with Mr Garbarino” in the year 2000. Martinez Depo at 10:11-16. Martinez also testified, when asked what actions and events “traumatized” him, that such events “[mjainly start[ed] with the year 2000.” Id. at 12:9-11. Martinez does not describe overhearing any incidents in which Gar-barino Sr used racial epithets prior to the year 2000. Rather, Martinez testified that, at some point in the year 2000, he heard Garbarino Sr refer to another employee as a “fucking Mexican” and that Martinez reminded Garbarino Sr that he, Martinez, was also of Mexican descent. Martinez Depo at 12:9-17, 78:19-79:7. Martinez does not mention the incidents involving Morales, Luna or Camacho. With respect to hearing secondhand information regarding Garbarino Sr’s verbal outbursts, Martinez testified about the experience of only one other individual: Martinez stated that his brother, Leonardo Martinez, had told him at some point in 1998 or 1999 that he had heard Garbarino Sr use the term “fucking Mexican.” Id. at 61:8-24.

Martinez’ Deposition and Declaration: the Fall 2000 Events

Martinez’ deposition testimony and his declaration are largely consistent with respect to three events that occurred in the fall of 2000. The first of those incidents occurred in August 2000. On that occasion, Martinez returned to the MSS yard after completing his route and was confronted by Garbarino Sr, who said, “You stupid Mexican, you threw away things that were not garbage.” Martinez attempted to explain that the property in question had been placed next to a garbage dumpster. Garbarino Sr was not interested in Martinez’ explanations and responded, “That’s why I hate fucking Mexicans.” Garbarino Sr then threatened to fire Martinez and said that Martinez would have to pay for the lost property. Martinez retrieved the property and showed it to Garbarino Sr, at which point Garbarino Sr said, “You Mexican fag, I am going to make you pay for this and I am going to fire you.” Martinez Depo at 74:23-77:6; see also Martinez Decl at 5 ¶ 20. This incident was witnessed by Martinez’ cousin, Francisco Ortiz Martinez. See Depo Francisco Ortiz Martinez (Ortiz Martinez Depo; Johnson Decl at 4-5 ¶ 12, Exh K) at 9:2-10:15.

In September 2000, Martinez had another confrontation with Garbarino Sr. Martinez Depo at 14:9-12; see also Martinez Decl at 7 ¶ 28. When Martinez arrived at work that day, Garbarino Sr rudely demanded that Martinez perform recycling duties that were not a part of Martinez’ job description. When Martinez objected, Garbarino Sr said, “What the fuck do I care? You do it because I tell you to” and “What the fuck do I care? I want you to do it.” Martinez Depo at 15:20-16:3; see also Martinez Decl at 7-8 ¶ 28. Martinez refused and told Garbarino Sr that Gar-barino Sr should not force a worker to perform duties that were not in his job description and that Martinez would contact the union. Martinez Depo at 16:4-9; see also Martinez Decl at 8 ¶ 28. Garbari-no said, “Don’t put the union into this.” Martinez Depo at 16:10-11; see also Martinez Decl at 8 ¶ 29. Garbarino Sr also stated that he did not like “fucking Mexicans” and that he was “going to fire all of them.” Martinez Depo at 21:13-15; see also Martinez Decl at 8 ¶ 29. This incident was also witnessed by Ortiz Martinez, who corroborates the racially-charged language Garbarino Sr used during the dispute. Ortiz Martinez Depo at 14:3-14. Martinez later complained both to the union and to MSS’ operations manager, David Garbari-no (Garbarino Jr). Martinez Depo at 17:5-20:5; see also Martinez Decl at 8 ¶ 30, 31.

Both Martinez’ declaration and deposition testimony describes the culmination of the racially charged incidents between Martinez and Garbarino Sr. This allegedly occurred the day after or several days after the recycling incident. Garbarino Sr pulled Martinez aside to speak with him privately in Garbarino Sr’s office. Martinez Depo at 23:24-24:4; see also Martinez Decl at 8-9 ¶ 32. Martinez and Gar-barino Sr discussed and argued briefly about Garbarino Sr’s treatment of Latinos, and Martinez got up to leave. Martinez Depo at 24:8-25:3; see also Martinez Decl at 9 ¶ 32-33. Garbarino Sr stood to block Martinez’ way,'stated that “this should not stay like this between us” and asked for Martinez’ forgiveness. Martinez Depo at 25:4-7; see also Martinez Decl at 9 ¶ 33. Not finding Garbarino Sr to be sincere, Martinez declined to forgive him and told Garbarino Sr to give him more time. Martinez Depo at 25:8-11; see also Martinez Decl at 9 ¶ 33. Garbarino Sr then demanded that Martinez shake his hand. Martinez Depo at' 25:12. When Martinez refused, Garbarino Sr said, “Come on, god damn it!” Martinez Depo at 25:14; see also Martinez Decl at 9 ¶ 34. When Martinez again refused, Garbarino picked up Martinez’ hand, grabbed Martinez’ arm and pulled him close. Red-faced and shaking, Garbarino Sr then said, “Fucking Mexican, I am going to kill you.” Martinez Depo at 25:15-18; see also Martinez Decl at 9 ¶ 34. At that point, Martinez left. Garbarino Sr followed him out, laughing, and said, “They call me Pepito, what do you want me to call you?” Martinez replied that his name was “Francisco.” Martinez Depo at 25:20-25; see also Martinez Decl at 9 ¶ 35. No one else was present during this incident. Martinez Depo at 26:8-14.

According to both his deposition and his declaration, Martinez went to the hospital and was provided with medication to treat anxiety several weeks after the incident. Martinez Depo at 30:18-32:5; see also Martinez Decl at 10 ¶ 36. After being released from the hospital, Martinez reported the confrontation with Garbarino Sr to the union. Martinez Depo at 32:9-11; see also Martinez Decl at 10 ¶ 36. Following his reporting of the incident, Martinez took three weeks vacation from work. Martinez Depo at 35:18-25; see also Martinez Decl at 11 ¶ 39. Martinez then began seeing a psychiatrist, who believes that Martinez suffers from an anxiety disorder as a result of his fractious relationship with Garbarino Sr. Martinez Depo at 40:5-23; see also Martinez Decl at 10 ¶ 38; Decl Frank Lossy (Lossy Decl; Johnson Decl at 3 ¶ 6, Exh E) at 13:15-19.

Martinez’ Deposition: After the Fall 2000 Events

Martinez’ deposition and declaration also differ in significant respects regarding the denouement of the confrontation in Gar-barino Sr’s office. In his deposition, Martinez testified that, subsequent to the final confrontation, Martinez has had little contact with Garbarino Sr. Martinez Depo at 29:19-25. Martinez has had very limited communication with Garbarino Sr and has only spoken to him about work-related issues. Id. at 79:17-18. Since the office incident, Martinez has not heard Garbari-no Sr make any other comments that Martinez considers offensive. Id. at 29:3-11. Martinez is also unaware of any other manager or supervisor at MSS who has used the derogatory remarks “fucking Mexican” or “Mexican pig.” Id. at 78:7-13.

Since the office incident, Martinez identifies only one other employee, Isidro Mon-tano, who has told Martinez anything regarding Garbarino’s use of racial slurs. Montano told Martinez that he had spoken with Garbarino Sr about Garbarino Sr’s use of the term “fucking Mexican” and had informed Garbarino Sr that Garbarino Sr was “not learning” any lessons from Martinez’ lawsuit. Id. at 41:6-42:21. It is unclear from Martinez’ deposition whether Montano told Martinez that Montano had actually overheard Garbarino Sr use such a racial epithet, or whether Montano merely told Garbarino Sr that Garbarino Sr was “not learning” from Martinez’ decision to file a lawsuit. See id. No one else has told Martinez that they have heard Gar-barino Sr use the term “fucking Mexican.” Id. at 42:22-25.

Additionally, Martinez testified in his deposition that Garbarino Sr has made no other statements to Martinez that Martinez understood to mean that Garbarino Sr might threaten him physically. Id. at 72:1-5. Martinez is unaware of any other employee who might have been threatened with physical harm by Garbarino Sr. Id. at 72:6-9. Martinez has never heard that Garbarino Sr has had anyone killed. Id. at 74:4-6.

Martinez’ Declaration: After the Fall 2000 Events

In his declaration, however, Martinez makes some claims that are inconsistent with his deposition testimony. Martinez reported in his deposition that he had not heard Garbarino Sr use any more racial epithets and that he was aware of no other managers or supervisors who used terms like “fucking Mexican” or “Mexican pig.” See Martinez Depo at 29:3-11, 78:7-13. Yet in his declaration, Martinez claims that in September 2000 another employee at MSS, Alice Garcia, told him she was leaving the company and that she had heard Garbarino Sr use the term “fucking Mexican.” Martinez Decl at 3 ¶ 13. This incident was not reported in his deposition.

And despite his testimony regarding lack of further physical threats, Martinez asserts in his declaration that he heard from several other employees that Garbar-ino Sr was displeased that Martinez had taken legal action, that Garbarino Sr was going to run Martinez over in his truck and that Garbarino Sr was going to fire Martinez. Martinez Decl at 11 ¶¶ 42-44. According to Martinez’ declaration, Gar-barino Sr has also told Martinez that Martinez “might as well run [Garbarino Sr] over” in a garbage truck and has tried to convince Martinez to fire his attorney. Id. at 11-12 ¶ 45. It is unclear from Martinez’ declaration when all of these alleged events occurred, though at least some of them appear to have occurred shortly after the office incident. Martinez states that one such incident, in which an employee told him that Garbarino Sr was upset and was going to drive over Martinez in his truck, occurred “[o]ne morning after the [office] incident.” Id. at 11 ¶ 42. Martinez also describes one . event, in which an employee informed Martinez that Garbarino Sr was “after” Martinez and wanted to “get rid” of Martinez, as occurring in 2002. Id. at 11 ¶ 44. Martinez does not specify, however, whether this event occurred before or after Martinez’ February 2002 deposition.

Finally, in his declaration, Martinez states that he took a stress-related medical leave from work in early 2001. Martinez Decl at 11 ¶ 39. The court has not found any testimony in Martinez’ deposition relating to this medical leave.

B

In September of 2001, Martinez filed this action against MSS and Garbarino in federal district court, alleging five separate causes of action: (1) fostering a hostile work environment and failing to promote or reassign on account of race in violation of 42 USC § 1981; (2) fostering a hostile work environment in violation of the California Fair Employment and . Housing Act (FEHA), Cal Gov Code § 12940;. (3) assault; (4) battery; (5) intentional infliction of emotional distress. See generally PI Compl (Doc # 1). Martinez premised federal jurisdiction on his allegations of a violation of 42 USC § 1981. Id. at 1 ¶ 1.

This case was eventually referred to a magistrate judge for a settlement conference (Doc # 10), but the parties did not settle (Doc # 18). Subsequently, on July 1, 2003, the parties held a pretrial conference before the court (Doc # 24). At the pretrial conference, Martinez’ counsel advised the court that he would not pursue the §• 1981 claims any further. Mot Decl Supp Juris (Doc #26) at 3:6-7; Opp Mot Decl Supp Juris (Doc #28) at 8:19-20. The joint pretrial conference statement, as well as the court’s civil minute order, reflect this fact. Joint Pretr Conf St (Doc # 23) at 19:26 (“Plaintiff has agreed to dismiss claims of discrimination.”); Pretr Conf Min Ent (Doc #24) (noting four state law claims only, and no § 1981 claims).

On August 22, 2003, defendants filed a motion to decline supplemental jurisdiction over the remaining state claims and to dismiss the case (Doc # 26). After Martinez failed to respond in a timely fashion, the court issued a September 'll, 2003, order, to show cause why defendants’ motion should not be treated as unopposed (Doc # 29). Although untimely, Martinez filed his opposition to the motion on September 10, 2003 (Doc #28). Defendants filed a reply memorandum on September 11, 2003 (Doc # 30). On October 17, 2003, the court denied defendants’ motion to decline supplemental jurisdiction, reasoning that Martinez could continue to pursue his § 1981 claims if he paid defendants’ fees and costs-for bringing the motion to decline supplemental jurisdiction. Doc # 33.

The parties resolved the matter of Martinez’ payment of fees and costs (Doc # 36), and Martinez continued to pursue his § 1981 claims. At the pretrial conference on November 29, 2003, the court fixed a dispositive motions hearing date of February 5, 2004, and a jury trial date of February 23, 2004. Doc # 39. ' Subsequently, on December 31, 2003, defendants filed the instant motion for summary adjudication of Martinez’ § 1981 and FEHA claims and to decline supplemental jurisdiction over -the remaining state -claims. Doc # 42. Martinez filed his opposition on January 15, 2004. Doc # 43. Defendants filed their reply brief on January 22, 2004. Doc # 48. In that reply brief, defendants object to Martinez’ January 2004 declaration (Doc # 46) on the grounds that it is a sham affidavit and indicate that they intend to file evidentiary objections to the other supporting documentation Martinez filed in support of his opposition. Reply Mot Sum Judg (Doc #48) at 2:9-4:15. Such evidentiary objections were filed on January 23, 2004. Doc #49. The court conducted a hearing on the motion on February 5, 2004. Doc # 73.

Before the court, therefore, are three issues: (1) whether to exclude the evidence to which defendants object, including whether to exclude Martinez’ declaration as a sham affidavit; (2) whether defendants are entitled to summary adjudication of Martinez’ § 1981 and FEHA claims; and (3) if defendants are entitled to summary adjudication of the § 1981 claim, whether the court should decline supplemental adjudication over the remaining state law claims. The court addresses each matter in turn.

II

The court first addresses the matter of Martinez’ January 2004 declaration and defendants’ other anticipated evidentiary objections to the evidence proffered by Martinez.

A

The court first considers defendants’ objections to Martinez’ January 2004 declaration. Defendants point out that Martinez’ declaration is submitted in English without a Spanish translation or other proof that Martinez read and understood the declaration. Reply Mot Sum Judg at 2:12 n. 1. In contrast, Martinez’ deposition testimony, taken approximately two years ago, was conducted under oath and with the aid of a Spanish-speaking interpreter. Id. at 2:11-12; Martinez Depo at 5:9-24. Defendants contend that the Martinez declaration contradicts Martinez’ deposition testimony in a material fashion, because he testified in his deposition that his problems with Garbarino Sr began in 2000 and failed to testify regarding any other alleged racial slurs or other discriminatory behavior. Defendants also object to most of the allegations contained in the declaration, in large part on the grounds that such allegations are without foundation. Def Ev Obj at 1:10-4:28. Defendants also contend that many of the allegations contain inadmissible hearsay and assume facts not in evidence. Id.

Under the “sham affidavit” rule, a party cannot create a genuine issue of material fact for summary judgment purposes by submitting an affidavit or declaration that contradicts his previous testimony without sufficient explanation for the contradiction. Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir.1975); see Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (recognizing that this rule applies in all circuits). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir.1991) (citation and internal quotation omitted). In making the decision whether such an affidavit or declaration is in fact a sham, the court must consider whether the party submitting the affidavit or declaration provides a sufficient explanation for the contradiction. Persistence Software, Inc. v. The Object People, Inc., 128 F Supp 2d 623, 629 (N.D.Cal.2000).

Martinez presents no explanation for the contradictions between his deposition testimony and his declaration. Martinez was given ample opportunity at his deposition to raise the issue of any alleged discriminatory remarks made to him; yet Martinez failed to discuss any such incidents prior to the year 2000. Further, the declaration presents no explanation why Martinez did not raise such incidents in his deposition or why he testified in his deposition that his problems with Garbarino Sr began in 2000. Any such occurrences of discriminatory behavior are subjects that would have been within Martinez’ personal knowledge at the time of the deposition, and Martinez (and his attorney) had every reason to bring forth such occurrences at Martinez’ deposition in response to the questions asked. Thus, there is no ground to conclude that Martinez’ contradictory allegations regarding the events before fall 2000 are based on newly discovered evidence.

The same is true for many of the contradictory allegations regarding events taking place after the three incidents in fall 2000. Martinez had no reason at the deposition not to report the incident involving Alice Garcia, since that event occurred long before his February 2002 deposition. Similarly, Martinez likely could have reported at least some of the information concerning threats Garbarino Sr allegedly made toward Martinez, since Martinez declares that some of these threats were made “[o]ne morning after the [office] incident.” See Martinez Decl at 11 ¶ 42. Because Martinez’ declaration does not include specific dates on which these alleged threats occurred, it is possible that some of the threats had not yet happened at the time of the deposition. But given the lack of specificity regarding the dates of such alleged threats, and given that the declaration is rife with other inconsistencies, there is scant reason to give Martinez the benefit of the doubt that these allegations are based on newly acquired evidence.

The contradictions regarding Martinez’ allegedly discriminatory treatment are significant, but they are not the only problem with the declaration. FRCP 56(e) requires that declarations and affidavits be made on personal knowledge, shall set forth facts that would constitute admissible evidence and shall affirmatively show that the declarant or affiant is competent to testify regarding such facts. As an initial matter, Martinez’ declaration fails to show that the declaration was made with the aid of a Spanish interpreter, as was his deposition. More importantly, many of the allegations made in the declaration are based on hearsay and are not within Martinez’ personal knowledge. These are strong reasons not to consider the assertions of the declaration as evidence in connection with the summary judgment motion. See Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.2001). A further problem with considering the information in the declaration is that Martinez’ new allegations regarding discrimination are vague and do not provide concrete examples of discrimination, as did his deposition testimony. “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Himaka v. Buddhist Churches of America, 917 F.Supp. 698, 704 (N.D.Cal.1995) (citing Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 57 (2nd Cir.1985), and Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979)). To consider the ’inconsistent allegations of the declaration, prepared almost two years after Martinez’ deposition, is simply at odds with full and fair discovery under the Federal Rules. These rules are designed to foster the early production of relevant facts and prevent hiding crucial information until the eve of trial.

Accordingly, the court finds that Martinez should not be allowed to create a material issue of fact at this stage of the proceeding by submitting a declaration that significantly contradicts his previous deposition testimony and that it is appropriate to exclude Martinez’ declaration under the sham affidavit rule.

B

Having excluded Martinez’ January 2004 declaration under the sham affidavit rule, the court need not rule on the specific evidentiary objections to that document. So the court now turns to defendants’ objections to plaintiffs’ remaining evidence.

Ortiz Martinez

The court begins with defendants’ objections to the use of Ortiz Martinez’ deposition testimony. See Johnson Decl at 4-5 ¶ 12, Exh K. Defendants object that Ortiz Martinez’ testimony is not relevant and lacks foundation. Much of the testimony to which defendants object is in regard to the racially-charged incidents about which Martinez himself testified in his own deposition. Based on Martinez’ deposition, the court has assumed the truth of such incidents for purposes of this motion. The court cannot say that Ortiz Martinez’ testimony is not relevant, as it tends to corroborate the incidents about which Martinez himself testifies. But because the court need not and has not relied on that testimony in connection with the instant motion, it is not necessary to rule on the objections to this cumulative evidence. The only other purpose for which the Ortiz Martinez declaration is crucial is to establish that Ortiz Martinez witnessed the events. Thus, to the extend that defendants object to Ortiz Martinez’ deposition in this regard, those objections are overruled.

Sheldon

Defendants next object to the portions of the deposition of Charles Sheldon (Sheldon). See Johnson Decl at 3 ¶ 9, Exh H. Defendants object that Sheldon’s testimony is not relevant, lacks foundation, assumes facts not in evidence and is based in part on hearsay. Sheldon testified in his deposition that he “believe[s] [he] ha[s] heard” the terms “lazy Mexican,” “fucking Mexican” or “porko Mexicano” used at the MSS workplace. Sheldon Decl at 28:7-10. Sheldon stated that he had heard these terms “[pjrobably in conversations with other fellow employees” and that he had a specific recollection that no management personnel were present. Id. at 28:11-24. Sheldon did not recall, however, who made the statements, to which employees the statements referred or when the statements were made. Id. at 28:25-30:2.

The court does not agree with defendants that Sheldon’s testimony is based on inadmissible hearsay or that it is completely irrelevant to the issue of hostile work environment. Sheldon testifies that he heard racial epithets used at the MSS workplace. Sheldon’s testimony regarding the epithets is not used to prove the “truth” of such epithets but rather to prove that such statements had, in fact, been made. Further, those statements may be relevant to whether Martinez experienced a hostile work environment. Of course, the fact that the testimony is vague, lacking in foundation and concerns events not witnessed by Martinez may affect the degree to which the court may consider such testimony in determining whether Martinez has an actionable hostile work environment claim. But this does not mean the testimony is completely irrelevant — at least at this stage of analysis.

Sheldon also testifies that he specifically remembers that no management personnel were present during the times when he heard an MSS employee use a racial epithet. Such testimony is relevant to the issue of the severity or pervasiveness of the alleged racial animus in the workplace and actually tends to support defendants’ position. The court thus overrules defendants’ objections to Sheldon’s deposition testimony.

Camacho

Defendants also object to the deposition testimony of Raul Camacho (Camacho). Johnson Decl 5 ¶ 13, Exh L. Defendants object to much of Camacho’s deposition testimony as being irrelevant and lacking in foundation. Most of Camacho’s testimony does not involve any events in which Martinez was involved and thus is of little relevance to the present action. Several portions of Camacho’s testimony, however, are notable. First, Camacho testifies that, in the context of Camacho attempting to take vacation time from work, Garbarino Sr told him to go back to Mexico and' not come back. Camancho Depo at 29:12-25. On another occasion, when Camancho called in sick to work, Garbarino Sr again told him to “go back to Mexico.” Id. at 30:2-11. Second, Camacho testified that he never heard Garbarino Sr use the terms “fucking Mexican” or “puerco Mexi-cano.” As with Sheldon’s testimony regarding racial epithets, such testimony may be probative whether the working environment at MSS was sufficiently hostile to support a § 1981 claim. The weight given to Camacho’s testimony regarding Garbarino Sr’s comments, however, may be affected by the fact that Martinez did not witness the events and does not testify that he was aware of the events.

One final portion of Camacho’s deposition that should be noted is his testimony that Martinez and Ortiz Martinez told him that Garbarino Sr had used the term “lazy Mexican.” Id. at 34:5-35:19. Of course, the Martinez and Ortiz Martinez statements regarding statements by Garbarino Sr is inadmissible hearsay and should be excluded on that ground.

Chafoya

Defendants’ next objections are to the deposition of Oscar Chafoya (Chafoya). Johnson Decl at 4 ¶ 11, Exh J. The Chafo-ya deposition, in large part, does not relate to any incidents involving Martinez or racial epithets and thus is not relevant to the present dispute. Two portions of the testimony are of note. First, Chafoya testifies that another individual, Jose' Ochoa, told him that Garbarino had called Ochoa a “fucking Mexican.” Chafoya Depo at 27:10-28:3. Such testimony is of little value, considering that Martinez does not testify that he'was aware of the statements. Chafoya’s testimony concerning Ochoa’s statements constitutes hearsay and, because there is no showing the statement was relayed to Martinez, should be excluded on that ground.

Chafoya, however, offers some additional testimony regarding the recycling incident. Chafoya Depo at 34:2-23. The court has accepted as true Martinez’ deposition testimony in support of that incident. The Chafoya deposition is thus cumulative with respect to whether Martinez has a triable issue of fact. Because the court need not and has not relied on the Chafoya deposition in connection with this motion, the court need not rule on any objections to that portion of the testimony.

Alvarez

Defendants also object to the deposition testimony of Andres Alvarez (Alvarez). Johnson Decl at 2 ¶ 3, Exh B. The Alvarez deposition largely describes events that do not involve Martinez and thus is of marginal relevance. But as with the other depositions, several portions of Alvarez’ testimony are notable. First, Alvarez testifies that, although he has not heard Garbarino Sr use racial epithets in front of other employees, he has heard him use the term “fucking Mexican” behind other employees’ backs. Alvarez Depo at 36:1-37:21. In fact, Alvarez states that Garbarino Sr referred to Martinez as a “fucking Mexican” to Alvarez. Id. at 52:17-53:7. Alvarez also testifies that he heard Garbarino Sr call Montano by the name “porko Mexi-cano,” though such name-calling was only done “as a joke.” Id. at 42:19-43:19. Such testimony may be of some relevance to the hostile work environment claim. The weight of such testimony, however, is diminished by the fact that Martinez did not witness the incidents described therein. Nor does Martinez show that Alvarez’ renditions of Garbarino Sr’s comments were relayed to Martinez.

Alvarez also testifies that several employees informed him that they had heard Garbarino use racial epithets. Both Martinez and Ochoa came to Alvarez and told him that Garbarino Sr had called them “fucking Mexicans.” Id. at 38:2-9. Alvarez also testified that Ochoa and Chafoya had come to him and told him that Garbar-ino Sr had called them “lazy Mexicans.” Id. at 44:21-45:23. All of this testimony is inadmissible hearsay and cannot be used in determining the sufficiency of Martinez’ claims.

Miranda

Defendants’ final objections are to the deposition of Rafael Miranda (Miranda). Johnson Decl at 2-3 ¶ 5, Exh D. The Miranda deposition, again, largely describes events that did not involve Martinez and thus is of little relevance to the case at bar. Several portions of the Miranda deposition are nonetheless potentially useful. First, Miranda testifies about an incident reported by an unidentified Latino employee, whom Miranda believes may have been a familial relation of Martinez’. The unidentified employee allegedly had an altercation with Garbarino Sr in which the employee asked for leave to go to a funeral and Garbarino Sr called him a “fucking Mexican.” Miranda Depo at 27:20-29:17. This testimony is inadmissible hearsay and cannot be used to support Martinez’ hostile work environment claim.

Miranda also testified that Martinez reported to him that Garbarino Sr had called him a “fucking Mexican” in the context of an employment dispute. Id. at 34:10-16. Such testimony is perhaps relevant to Martinez’ state of mind, if Martinez can show the predicate fact of Garbarino Sr having made the statement. The court therefore overrules the objection to this testimony.

Ill

Having parsed the evidence, the court turns to the motion for summary judgment itself.

A

In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. “[Sjummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).

The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. TW Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). The evidence presented by the nonmoving party “is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id at 249, 106 S.Ct. 2505.

B

Defendants essentially break Martinez’ § 1981 claim into two parts: a hostile work environment claim and a failure to promote claim. Defendants contend that summary adjudication of both types of § 1981 claim is appropriate. As defendants point out in their reply brief, it is unclear whether Martinez’ § 1981 claim is premised on both hostile work environment and failure to promote theories, or only a failure to promote theory. See Reply Mot Sum Judg at 8:17-19, 9:5-22. Martinez’ complaint only states one § 1981 claim, but his allegations under that claim appear to assert both theories of liability. See Compl at 3-5 ¶¶ 9-20. Despite such problematic pleading, the court will consider both theories of liability under § 1981. In addition to the § 1981 claim, defendants also move for summary judgment on Martinez’ FEHAclaim.

1

The court begins with Martinez’ apparent hostile work environment claim under § 1981. The court must evaluate two issues in considering the vitality of this claim:. (1) which of the incidents on which Martinez presents, proof may be considered in analyzing whether Martinez’ hostile work environment claim is legally sufficient; and. (2) based on those incidents that the court properly may consider, whether Martinez’ version of the facts is sufficient to support a hostile work environment claim under § 1981.

a

The court must first evaluate which of the events alleged by Martinez or other witnesses properly 'be taken into the court’s calculus in analyzing the hostile work environment claim. First, as the court has herein determined that Martinez’ declaration should.be excluded, none of the evidence presented in that declaration should be considered, and the court thus does not consider any of the alleged events supported only by Martinez’ declaration testimony.

Second, the court must determine which (if any) of the incidents described by other witnesses may be used in evaluating the sufficiency of Martinez’ hostile work environment claim. As an initial matter, it is worth noting that Martinez’ counsel provides the court with very little guidance on the appropriate use of this additional deposition testimony. Martinez’ opposition brief is filled with sweeping generalizations supported by lengthy string citations to numerous excerpts from the various depositions. The opposition brief fails to list the specific incidents about which the other deponents testify; whether and how such citations to the record are relevant (or even admissible) is left completely up to the court’s own research and determination. As the Ninth Circuit has noted, “it is not our task * * * to scour the record in search of a genuine issue of triable fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (internal quotation and citation omitted). Nevertheless, the court has spent considerable time “scouring the record” to determine whether any of the testimony presented in the attached portions of the depositions is of use in supporting Martinez’ hostile work environment claim. As explained below, the court has determined that, in large part, that testimony is not useful in this regard.

At the outset, the court notes that much of the deposition testimony constitutes inadmissible hearsay. Incidents of harassment predicated on inadmissible hearsay are not proper for the court to consider in evaluating the hostility of Martinez’ workplace. See Leibovitz v. New York City Transit Authority, 252 F.3d 179, 189 (2d Cir.2001). In the previous section of this order dealing with evidentiary objections, the court has already excluded such hearsay statements from its evaluation. This includes Camacho’s testimony regarding Martinez and Ortiz Martinez’ statements, Chafoya’s testimony regarding Ochoa’s statements, Alvarez’ testimony regarding Martinez, Ochoa and Chafoya’s statements and Miranda’s testimony regarding the unidentified Latino employee.

Additionally, to establish a hostile work environment, Martinez cannot rely on incidents of which he had no personal knowledge. Although potentially relevant tc the workplace as experienced by all the employees as a whole, harassment of which Martinez had no knowledge has no bearing on whether Martinez himself reasonably considered the workplace hostile. Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000). Of the incidents not already excluded on hearsay grounds, this limitation also excludes Sheldon’s testimony regarding racial epithets, Camacho’s testimony regarding Garbarino Sr’s “go back to Mexico” comments and Alvarez’ testimony regarding the racial epithets he overheard — even including the one made in reference to Martinez himself. Martinez fails to present evidence that he was aware of any of these incidents.

The court, therefore, may not consider the bulk of the testimony contained in the depositions of the other witnesses, save as such testimony corroborates Martinez’ own deposition testimony. Based on Martinez’ deposition, he heard Garbarino Sr use racial epithets beginning in 2000 when Martinez reminded Garbarino that he was also of Mexican heritage and culminating with the botched apology attempt in Garbari-no’s office in September 2000. As Martinez witnessed this series of events, such events are all proper to consider when evaluating his hostile work environment claim.

Martinez also testified in his deposition that his brother Leonardo told him that he had heard Garbarino Sr use the term “fucking Mexican.” Martinez Depo at 61:8-24. Martinez also testified that Montano had recounted to him a conversation in which Montano had told Garbarino Sr that Garbarino Sr had “not learned” anything from Martinez’ lawsuit. Martinez Depo at 41:6-42:21. Both such events constitute hearsay and, at least with respect to proving the truth of the matter asserted, must also be excluded. So in order to consider these statements, the court must determine whether they might be admitted for some other purpose. In this regard, the court notes that some courts have concluded that a plaintiff may not rely at all on statements made to others to defeat a summary judgment claim. See Keenan v. Allan, 889 F.Supp. 1320, 1375 n. 68 (E.D.Wash.1995). Many courts, however, allow incidents involving other employees to be considered when evaluating the objective hostility of plaintiffs workplace. See Leibovitz, 252 F.3d at 190. When Such incidents are premised on hearsay, however, proof of those incidents may be admitted for its effect on the plaintiffs subjective state of mind — not for proof that the incidents actually occurred. Id. at 190 n. 8. Thus, the court may consider these two hearsay statements to the extent that they affected Martinez’ subjective perceptions of his work environment — but not as evidence that the racially charged comments actually occurred. Accordingly, these two alleged events are of limited value in the court’s assessment of Martinez’ working environment, as the dispute regarding the hostile work environment claim involves its objective sufficiency, as is detailed below.

The court must also consider whether the relevant statute of limitations bars consideration of any of the alleged events. California’s one-year statute of limitations for personal injury actions governs civil rights actions brought pursuant to §§ 1981, 1983 and 1985. Taylor v. Regents of University of California, 993 F.2d 710, 711 (9th Cir.1993), cert. denied, 510 U.S. 1076, 114 S.Ct. 890, 127 L.Ed.2d 83 (1994). Although California has increased the personal injury statutory period from one year to two years, effective January 1, 2003, the old one-year statute applies to cases filed before January 1, 2003. Abreu v. Ramirez, 284 F.Supp.2d 1250, 1256 (C.D.Cal.2003). Thus, the only events that are actionable in a § 1981 hostile work environment claim are those that fall within the one-year period preceding the filing of the complaint.

Previously, the continuing violation doctrine provided an exception to the statute of limitations. This doctrine permitted plaintiff to complain about an act of discrimination that would otherwise be time-barred if that act is part of a continuing series of events, the last of which occurred within the statutory period. See e.g., Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 597 (9th Cir 1990). But the Supreme Court has since held that, in the Title VII context, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Time-barred acts are relevant only to the extent that they can be used “as background evidence in support, of a timely claim.” Id. The Ninth Circuit has interpreted Morgan to apply to civil rights claims brought under §§ 1983 and 1985 and. to “overrule[] previous Ninth Circuit authority holding that, ifia discriminatory act took place within the limitations period and that act was related and similar to acts that took place outside the limitations period, all the related acts — including the earlier acts — were actionable as part of a continuing violation.” RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir.2002). Given the Ninth Circuit’s application of Morgan to other civil rights statutes, it might be the case that the doctrine of continuing acts is no longer a valid method for making a time-barred act or acts actionable under § 1981.

The holding of Morgan, however, is not so broad as to apply to hostile work envk ronment claims. In fact, the Supreme Court explicitly exempted hostile work environment claims from its invalidation of the doctrine of continuing acts. “The[] very nature [of hostile work environment claims] involves repeated eonduct[,and] * * * [t]he unlawful employment practice therefore cannot be said to occur on any particular day.” Morgan, 536 U.S. at 115, 122 S.Ct. 2061 (internal citations and quotations omitted). Because “a hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice[,][t]he timely filing provision only requires that a [hostile work environment] plaintiff file a charge within a certain number of days after the unlawful practice happened.” Id. at 117, 122 S.Ct. 2061. The Ninth Circuit has interpreted this standard to mean that “claims based on a hostile work environment are only timely where at least one act occurred during the limitations period.” Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir.2003).

Here, Martinez filed his complaint in this action on September 7, 2001. Thus, the court may take into account events that occurred before September 7, 2000, if Martinez alleges at least one discriminatory event occurring within the statutory time period.

Some of the events, such as the incident in which Martinez disposed of items that were not garbage, clearly do not provide a basis for making the claim actionable. It is somewhat unclear when, exactly, the other two major incidents involving confrontations between Martinez and Garbari-no Sr occurred. According to Martinez, the recycling incident occurred on September 5, 2000. Although the dates are close, Martinez’ own papers thus seem to place that event outside the permissible time period. See Opp Mot Sum Judg at 4:19-20. Martinez also maintains that the confrontation in Garbarino Sr’s office occurred two days after the recycling incident, which would be September 7, 2000. See id. at 5:11, 5:19. This would mean that such incident occurred just within the statutory period. Defendants also state in their moving papers that the confrontation in Garbarino’s office took place several days after the recycling incident, which would put the event within the statutory period. Mot Sum Judg at 3:16. Despite the lack of certainty as to the exact date of the office confrontation, the court is willing to assume that the office incident occurred within the statutory time period.

Thus, the office incident having occurred on September 7, 2000, the court is free under Morgan both to find that the hostile work environment claim is actionable and to consider the incidents occurring outside the statutory period. This includes the incident in which Martinez threw away items that were not garbage and the recycling incident, as well as the incident in which Martinez reminded Garbarino Sr that he, Martinez, was also of Mexican heritage.

b

Having determined which of Martinez’ allegations the court properly may consider in evaluating the sufficiency of Martinez’ hostile work environment claim under § 1981, the court now turns to the proper standard for evaluating such a claim. Section 1981 provides that all persons within the Unites States enjoy the same rights as white citizens to “make and enforce contracts.” 42 USC § 1981(a). The Supreme Court ruled in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) that a hostile work environment claim is not cognizable under § 1981. In response, Congress amended § 1981 to include within its definition of making and enforcing contracts “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Manatt v. Bank of America, 339 F.3d 792, 797 (9th Cir.2003); 42 USC § 1981(b). The Ninth Circuit has subsequently interpreted § 1981 as “evinc[ing] congressional intent to permit hostile work environment claims * * * [because a] hostile work environment claim interferes with the ‘enjoyment of all benefits * * * and conditions of the contractual relationship’ of employment * * *.” Id. The court of appeals further found that “those legal principles guiding a court in a Title VII dispute apply with equal force in a § 1981 action.” Id. In evaluating Title VII claims, the Supreme Court has acknowledged the propriety of drawing on and “harmonizing” the standards for both racial and sexual harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The court, therefore, may look to § 1981 or Title VII cases involving both racial and sexual harassment in evaluating whether the present claim should survive summary judgment.

To raise a prima facie case of racial harassment under Title VII or § 1981, Martinez must raise a triable issue of fact regarding whether: (1) he was subjected to verbal or physical conduct based on his race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of Martinez’ employment and to create an abusive work environment. Manatt, 339 F.3d at 798. Defendants’ motion for summary judgment is based on their contention that Martinez cannot establish the third factor. While reserving their right to dispute that any of the allegedly abusive events occurred, defendants maintain that Martinez’ allegations, even if true, do not rise to the level of “sufficiently severe or pervasive” racial harassment that would “alter the conditions of employment.”

Section 1981, like Title VII, is not a “ ‘general civility code.’ ” Manatt, 339 F.3d at 798, quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275. To prove that the conditions of employment have been sufficiently altered by racial harassment, Martinez must show that his “ ‘workplace [was] permeated with discriminatory intimidation’ ” such that his “ ‘working environment [could] both subjectively and objectively be perceived as abusive.’ ” Brooks, 229 F.3d at 923, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995). In evaluating the objective portion of the inquiry, the court should utilize a “totality of the circumstances” test, which includes factors such as: (1) the frequency of the discriminatory conduct; (2) the severity of the discriminatory conduct; (3) whether the conduct is physically threatening and publicly humiliating or merely an offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir.2002); Brooks, 229 F.3d at 923-24. The less severe or serious the nature of the harassing conduct, the more pervasive or frequent such conduct must be. Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991). “Simple teasing, offhand comments, and isolated incidents (unless extremely serious)” will rarely give rise to a reasonable perception that a term or condition of employment has been so altered as to include harassment. Manatt, 339 F.3d at 798; see Brooks, 229 F.3d at 924 (finding that “an isolated incident of harassment by a coworker will rarely (if ever) give rise to a reasonable fear that [racial] harassment has become a permanent fixture of the employment relationship”); Ellison, 924 F.2d at 878 (quoting King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 537 (7th Cir.1990), for the proposition that “ ‘although a single act can be enough * * * generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending of the number of incidents and the intensity of each incident”’). In evaluating the factors relating to the objective prong of the inquiry, the court should adopt the perspective of the reasonable victim. Brooks, 229 F.3d at 924 (citing Ellison, 924 F.2d at 879).

In the case at bar, neither party disputes that Martinez subjectively feels that the conditions of his employment have been altered to include racial abuse as an effective term. Rather, defendants argue that Martinez fails to meet the objective standard concerning the severity and pervasiveness of the alleged abuse. Although it is a close question, the court agrees with Martinez that the incidents that occurred in 2000, if true, are more closely analogous to incidents the Ninth Circuit has found sufficient and thus rises .to the level of an objectively abusive work environment.

First, the court considers the frequency of the alleged racial harassment. As the court has noted, a single isolated event or handful of events will rarely give rise to a hostile work environment claim. Brooks, 229 F.3d at 924; Ellison, 924 F.2d at 878; see Manatt, 339 F.3d at 798. Martinez presents evidence of several occasions involving Garbarino Sr’s use of racial epithets or racially-charged intimidation. Only the events in August and September 2000 seem to have involved Garbarino Sr’s direction of such racial .animus toward Martinez himself. See Manatt, 339 F.3d at 798 (distinguishing between racial epithets overheard by plaintiff and racial epithets or humor actually directed at her). Subsequent to these events, Garbarino Sr and Martinez have had relatively little contact, and Martinez admits that Garbarino Sr has not used any racial epithets in his presence since that confrontation. The racially-charged incidents that Martinez experienced thus appear to have been limited to a handful of events occurring over a two-month time period. Providing evidence of only a few specific racially-charged incidents is usually insufficient to support a claim for an objectively unreasonable hostile work environment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642-43 (9th Cir.2003) (finding that, although plaintiff claimed that he was continually harassed, he provided specific factual allegations regarding only a few discrete incidents, which were insufficient). Thus, because Martinez presents specific evidence regarding only a few incidents, the court finds that the frequency factor does not appear to favor Martinez.

The court next turns to the severity factor. Some courts have held that an isolated incident or group of incidents may serve as the basis for a hostile work environment claim if sufficiently severe. See, e g, Vance v. Southern Bell Tel. & Tel. Co 863 F.2d 1503, 1510-11 (11th Cir.1989) (finding that two incidents which a noose was hung at an African American employee’s work station were sufficiently severe to establish a hostile work environment claim). To be sufficiently severe, the isolated incidents must be “unusually severe.” For example, for a hostile work environment claim based on sexual harassment, forcible rape would constitute a sufficiently severe incident on which to base such a claim, but a brief groping of the victim’s stomach and breasts would not. Brooks, 229 F.3d at 921, 926; see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (characterizing rape as “criminal conduct of the most serious nature”); Little, 301 F.3d at 967-68 (finding a single incident of rape by a business associate actionable).

As the court has previously noted, “[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious)” do not amount to a change in the terms and conditions of employment. Ma natt, 339 F.3d at 798. In Manatt, the plaintiffs coworkers called her “China woman” several times and, on several occasions, ridiculed her appearance and speech on the basis of her race. Id. at 795-96. The Ninth Circuit found that such behavior, although troubling, generally fell into the category of “simple teasing” and “offhand comments” and was not actionable. Id. at 799. See also Vasquez, 307 F.3d at 893 (no hostile work environment when plaintiffs supervisor made racially offensive remarks to plaintiff on two occasions and yelled at him in front of others). In comparison with the severity of the incidents described in Vance, Brooks, Meritor Savings and Little, the casual utterance of several offensive racial slurs is not likely to be severe enough to constitute actionable hostile work environment harassment. If groping a woman’s intimate body parts is insufficiently severe to make a single event actionable, then a handful of racial epithets also seems insufficiently severe. Compare Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 870, 872-73 (9th Cir.2001) (finding sexually harassing insults actionable when employee was subjected to relentless campaign of insults, name-calling, vulgarities and taun