concurring.
I concur in the memorandum disposition. The memorandum does not, however, provide much guidance to the district court regarding the attorneys’ fees motion.
There are several aspects of the record in this case to which, in my view, the district court should pay particular attention in reconsidering the attorneys’ fees award and in explaining any award it decides to issue on remand.
First, the district court recognized that there was one racially discriminatory incident within the limitations period involving a “grossly offensive” document. The district court correctly held that this lone occurrence was not enough to alter the terms and conditions of Burks’s employment, because the perpetrator was not Burks’s supervisor and was promptly disciplined. It may be relevant to the attorneys’ fees decision, though, that the case in this court finally settling the law as to whether and in what circumstances single serious incidents of harassment are actionable issued after the district court opinion in this case. Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir.2000).
Second, in considering the pertinence of time-barred incidents, the district court should take care to distinguish between, on the one hand, time-barred causes of action and, on the other hand, reliance on events outside the limitations period as evidence of motivation for incidents within the limitations period. The latter is not, of course, automatically frivolous. Similarly, the district court should take care to distinguish between prior adjudication concerning other incidents and prior, final, adverse adjudication concerning the same incidents for which the plaintiff is seeking redress in this case. Only the latter kind of litigation is relevant to whether the claim in this case was “frivolous, unreasonable, or without foundation.” Finally, to the degree the fee award is based upon plaintiffs refusal to limit the scope of the case when presented by defendants with a justified request to do so, the district court should consider precisely which issues or claims should have been withdrawn earlier after defendants’ requests and relate the amount of the fees to that determination.
*890With those observations, I concur in the memorandum disposition.