dissenting.
Summary. Summing up the evidence supporting the jury verdict of retaliation by Go Daddy, the majority concludes:
There is, therefore, evidence to support a reasonable person’s conclusion that the conduct to which Bouamama had been subjected at Go Daddy went beyond mere “offhand comments” and “isolated incidents,” Breeden at 271, 121 S.Ct. 1508, and that Bouamama’s two, and possibly three, complaints to Slezak were therefore protected activity. We hold that this testimony satisfies the “any evidence” standard.
Two conversations were reported to Slezak. No evidence was offered of a “possible” third. No rational person could have thought that the two conversations with two different men in different contexts and at widely separated times constituted a pattern of discriminatory conduct by Go Daddy. Even the jury did not think they did, returning an answer of “No” to the question asking if Go Daddy had discriminated. If a reasonable person could believe, albeit mistakenly, that he was reporting and opposing a pattern of discrimination, his opposition would be protected. But Bouamama did not report a pattern. At most he reported a single sentence that he deemed discriminatory. So, the evidence that the majority finds supports the jury’s findings of liability and imposition of punitive damages is what? *967If Bouamama did not report discrimination, what did Go Daddy retaliate against? The majority, combing for straws, has not provided any pattern of protected activity on which the retaliation claim could stand.
The majority opinion. The majority opinion sets out carefully and conscientiously the evidence it finds relevant. Faithful to stating the facts, the majority characterizes them in a way that they appear to affirmatively answer the three questions that the jury had to answer affirmatively in order to find in favor of Bouamama, so that the conclusion is:
(1) Bouamama engaged in protected activity, that is, opposing discrimination under Title VIL
(2) The company ... terminated him.
(3) The protected activity was a substantial or motivating factor in the company’s action. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983).
The jury found that neither Bouamama’s Moroccan origin nor his Moslem religion motivated Go-Daddy’s decision not to promote him to Sales Supervisor. The jury also found that Go-Daddy terminated Bouamama “in retaliation for his engaging in a protected activity” and that Go-Daddy acted with malice or reckless indifference to his protected activity. The jury awarded $5,000 for mental and emotional distress, $135,000 for lost earnings, and $250,000 in punitive damages.
Was there any evidence that Go-Daddy retaliated for Bouamama’s performance of protected acts opposing a discriminatory employment practice?
Not every report of an event that an employee perceives as discriminatory activity is protected. In order to constitute protected activity, a complaint must be based on an employee’s “reasonable belief’ that he is reporting conduct that violates Title VII. See Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir.1988). What the employee opposes must be “a practice.” Trent v. Valley Elec. Ass’n, 41 F.3d 524, 526 (9th Cir.1994).
Bouamama’s alleged protected activity. Let’s look at what the majority characterizes as Bouamama’s protected activity:
(1) In December 2001 or January 2002, Villeneuve, hearing Bouamama dealing with a caller in French, asked Bouamama what languages he spoke. He answered, “French and Arabic.” In Villeneuve’s view Bouamama’s fluency was an asset. Bouamama produced no evidence of a contrary evaluation. Villeneuve added to his question about language by asking Bouamama’s country of origin and religion. Villeneuve offered no comment on them.
Six months after the questions had been asked, Bouamama told Heather Slezak in Human Resources of the questions. In the meantime, Villeneuve had given Bouamama a promotion and a big increase in salary. It is difficult to understand why, six months after the conversation, Bouamama would complain about it. It is even more difficult to construe two questions following up Bouamama’s knowledge of foreign languages as “discriminatory behavior.” It is impossible to see Bouamama’s conversation with Slezak as an employee opposing unlawful discrimination.
The majority, however, colors Bouamama’s conversation with Slezak by what Bouamama did not say to her. At some undetermined time but after 9/11/01, Bouamama heard Villeneuve talking to other employees in a hallway near Bouamama’s cubicle. Villeneuve said, “The Muslims need to die. The bastard Muslims need to die.” Bouamama was not the addressee of this comment. He did not report it to anyone. His memory of it was disclosed at trial. It is difficult to understand the remark as other than random, not aimed at Bouamama, and expressing what many *968Americans may have thought about “the bastard Muslims,” i.e., the terrorists who had rained terror on New York on 9/11. As Bouamama himself testified, “I understand maybe the anger that some people are expressing.” Bouamama did not complain about what he overheard. It is not even clear that he heard the remarks before he told Slezak about the December 2001 conversation. By no stretch were the remarks indicative of any employment practice. Therefore, the chance and unreported remarks generated no protected activity and are irrelevant to Bouamama’s claim of retaliation.
(2) On April 1, 2003, Craig Franklin replaced Villeneuve as Bouamama’s immediate supervisor. On April 7, Franklin entered Bouamama’s cubicle and began to converse with him. In Bouamama’s mind “trouble started” when Franklin asked where the pictures decorating the cubicle came from. Bouamama answered, “Morocco.” Franklin asked him if he were from Morocco and if he were Moslem. Bouamama answered, “Yes.” Franklin said, “You know you’re lucky that I like you.” That afternoon, Bouamama told Slezak of the conversation.
It is possible to interpret Franklin’s ambiguous ‘You’re lucky ...” as an implicitly negative comment on Bouamama’s origin and religion. However, even if this interpretation is made, Bouamama’s report to Slezak could not be classified as an instance of protected activity. Franklin’s comment is simply one remark made by a new man on the job. A “recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 778, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citation omitted).
The majority cites Bouamama’s testimony that he complained to Slezak “two or three times.” Bouamama identifies his report on the conversation with Franklin as “the second time” he complained. The record is bare of any other complaint.
Franklin’s conversation cannot be read together with Villeneuve’s earlier remarks to form a pattern that any reasonable person could interpret as discriminatory. No evidence exists of any relation whatsoever between Franklin’s words and Villeneuve’s. There is no pattern of an employment practice created by the two conversations. No reasonable person could use Villeneuve’s earlier conversation, which, as already noted, was entirely unremarkable and led on to no negative effects for Bouamama, to interpret Franklin’s remarks of over one year later to be more than an “isolated incident.”
The termination. As the majority relates, upon taking over on April 1, 2003, Franklin immediately reorganized the call center where Bouamama worked, eliminating 13 positions including Bouamama’s. There is no suggestion that the reorganization had any discriminatory motive. On April 4, Franklin, Villeneuve, and Slezak told Bouamama that his job was being eliminated. He was told he could apply for a new Sales Supervisor position or “walk away.”
On April 7-9, 2003, Franklin, Villeneuve, and Slezak interviewed 13 candidates for the Sales Supervisor position and hired 6, not including Bouamama, who was rated “near the bottom.” Bouamama learned that he had not been promoted on April 14. After unsuccessfully doing a marketing report on April 15 for another department of the company, he ended his employment on April 17.
Bouamama’s own testimony demonstrates that he believed that Go Daddy terminated him on April 4 unless he won a *969promotion to the Sales Supervisor position. But the date of April 4 is not critical to this case. Accepting the majority’s view that he was terminated April 17, there is no evidence in the record that Bouamama engaged in any protected activity or that any such activity was the cause of an employment action. Bouamama never reported Villeneuve’s undated comment about “bastard Muslims” and so it is irrelevant to Bouamama’s claim of retaliation: Go Daddy cannot have retaliated for a report that was never made. As for what Bouamama did report, neither Villeneuve’s questions nor Franklin’s April 7 comment to Bouamama could have been taken by any reasonable person to be a practice affecting the terms and conditions of employment in violation of Title VII. Bouamama’s reports of those incidents were not protected activity opposing discrimination by the employer.
Conclusion. The majority cites the controlling law, Clark County Sch. Dist. v. Breeden, 582 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Unanimously reversing our court in a per curiam opinion, the Supreme Court corrected a memorandum disposition of this circuit in favor of Shirley Breeden, an employee who reported an employer’s crude sexual comment. The circuit had held that the report was protected activity if Breeden had a good faith belief that the remark was unlawful sexual harassment. The Supreme Court pointed out that Title VII forbids actions that discriminate “with respect to [an individual’s] compensation, terms, conditions, or privileges of employment,” Id. at 270, 121 S.Ct. 1508, citing 42 U.S.C. § 2000e-2(a)(l). Workplace behavior, the Supreme Court explained, must be measured “by ‘looking at all the circumstances,’ including 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.” Id. at 270-271, 121 S.Ct. 1508, quoting Faragher, quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). If the employee here experienced more than Shirley Breeden did, it does not appear on this record.
In the present case, the EEOC has produced zero evidence of protected activity affecting Bouamama’s conditions of employment. The six months late report of Villeneuve’s questions was not protected activity. The overhearing of Villeneuve’s reaction to 9/11 did not give rise to a reasonable belief that Bouamama’s patron and promoter was engaged in unlawful discrimination affecting his employment, nor did this belief lead Bouamama to oppose any employment practice.
The April 7 report of Franklin’s single sentence was, at most, the report of an offhand, isolated comment. Was Franklin’s ambiguous comment repeated? No. Was it physically threatening or humiliating? No. Did it interfere with Bouamama’s work performance? No. Did it affect his compensation? No. Did it affect his promotion to Sales Supervisor? No. Can this second report to Slezak show a pattern or practice of discriminatory conduct? No. No evidence, under the standard set by the Supreme Court, supported the jury’s verdict.
I accept the majority’s view that we review the jury’s verdict under the plain error standard. Jury verdicts deserve all the deference that the law wisely accords them. But appellate courts, too, have a function in reviewing what the jury did. If there is any evidence that Bouamama opposed an unlawful employment practice, the verdict should stand. There is none. The result of the trial was a miscarriage of justice. The affirmation of that result is made quoting the United States Supreme *970Court and flouting its holdings in Hams, Faragher and Breeden.
I dissent.