I. The district court misapplied the Supreme Court’s standard for opposition articulated in Crawford. 8

II. This Court should reject the “manager rule” in the Title VII context. 10

III. The district court misapplied relevant legal standards in concluding that a jury could not find Cheatham had a reasonable belief that the conduct he opposed was unlawful under Title VII. 21

CONCLUSION.. 30

CERTIFICATE OF COMPLIANCE...........................................................................

CERTIFICATE OF SERVICE....................................................................................

TABLE OF AUTHORITIES

Cases

Arizona v. ASARCO LLC,

.... 773 F.3d 1050 (9th Cir. 2014) (en banc).................................................... 23

Bailey v. USF Holland, Inc.,

.... 526 F.3d 880 (6th Cir. 2008)..................................................................... 23

Boyer-Liberto v. Fontainebleau Corp.,

.... 786 F.3d 264 (4th Cir. 2015) (en banc).......................................... 26, 27, 28

Brush v. Sears Holdings Corp.,

.... 466 F. App’x 781 (11th Cir. 2012)............................................................ 19

Burlington Indus., Inc. v. Ellerth,

.... 524 U.S. 742 (1998)............................................................................. 15, 21

Burlington N. & Santa Fe Ry. Co. v. White,

.... 548 U.S. 53 (2006)............................................................................... 13, 14

Clark Cty. Sch. Dist. v. Breeden,

.... 532 U.S. 268 (2001)......................................................................... 6, 24, 25

Collazo v. Bristol-Myers Squibb Mfg., Inc.,

.... 617 F.3d 39 (1st Cir. 2010)............................................................ 18, 19, 20

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,

.... 211 F. App’x 373 (6th Cir. 2006).............................................................. 29

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,

.... 555 U.S. 271 (2009)............................................................................ passim

DeMasters v. Carilion Clinic,

.... 796 F.3d 409 (4th Cir. 2015)............................................................... passim

EEOC v. Abercrombie & Fitch Stores, Inc.,

.... 135 S. Ct. 2028 (2015)............................................................................... 12

EEOC v. HBE Corp.,

.... 135 F.3d 543 (8th Cir. 1998)..................................................................... 20

Ellison v. Brady,

.... 924 F.2d 872 (9th Cir. 1991)..................................................................... 26

Faragher v. City of Boca Raton,

.... 524 U.S. 775 (1998)....................................................................... 14, 27, 28

Forrest v. Brinker Int’l Payroll Co.,

.... 511 F.3d 225 (1st Cir. 2007)...................................................................... 17

Foster v. Time Warner Entm’t Co.,

.... 250 F.3d 1189 (8th Cir. 2001)................................................................... 20

Hagan v. Echostar Satellite, L.L.C.,

.... 529 F.3d 617 (5th Cir. 2008)..................................................................... 19

Harris v. Forklift Sys., Inc.,

.... 510 U.S. 17 (1993)..................................................................................... 22

Hicks v. Gates Rubber Co.,

.... 833 F.2d 1406 (10th Cir.1987).................................................................. 23

Hoyle v. Freightliner, LLC,

.... 650 F.3d 321 (4th Cir. 2011)..................................................................... 22

Johnson v. Univ. of Cincinnati,

.... 215 F.3d 561 (6th Cir. 2000)..................................................................... 17

Kasten v. Saint-Gobain Performance Plastics Corp.,

.... 563 U.S. 1 (2011)................................................................................. 11, 12

Kolstad v. Am. Dental Ass’n,

.... 527 U.S. 526 (1999)................................................................................... 15

Ladd v. Grand Trunk W. R.R.,

.... 552 F.3d 495 (6th Cir. 2009)..................................................................... 22

Littlejohn v. City of New York,

.... 795 F.3d 297 (2d Cir. 2015).......................................................... 12, 16, 18

McKenzie v. Renberg’s Inc.,

.... 94 F.3d 1478 (10th Cir. 1996)............................................................. 11, 19

Monteiro v. Tempe Union High Sch. Dist.,

.... 158 F.3d 1022 (9th Cir. 1998)................................................................... 22

Nat’l R.R. Passenger Corp. v. Morgan,

.... 536 U.S. 101 (2002)............................................................................. 25, 28

Nichols v. Azteca Rest. Enters., Inc.,

.... 256 F.3d 864 (9th Cir. 2001)............................................................... 26, 27

Pippin v. Boulevard Motel Corp.,

.... 835 F.3d 180 (1st Cir. 2016)................................................................ 16, 17

Robinson v. Shell Oil Co.,

.... 519 U.S. 337 (1997)................................................................................... 13

Rosenfield v. GlobalTranz Enters., Inc.,

.... 811 F.3d 282 (9th Cir. 2015)............................................................... 11, 20

Smith v. Sec’y of the Navy,

.... 659 F.2d 1113 (D.C. Cir. 1981)........................................................... 17, 18

Spriggs v. Diamond Auto Glass, Inc.,

.... 242 F.3d 179 (4th Cir. 2001)..................................................................... 22

Thompson v. N. Am. Stainless, LP,

.... 562 U.S. 170 (2011)................................................................................... 13

Toor v. Lynch,

.... 789 F.3d 1055 (9th Cir. 2015)................................................................... 13

Trent v. Valley Elec. Ass’n, Inc.,

.... 41 F.3d 524 (9th Cir. 1994)....................................................................... 21

United States v. Johnson,

.... 529 U.S. 53 (2000)..................................................................................... 13

Waltman v. Int’l Paper Co.,

.... 875 F.2d 468 (5th Cir. 1989)..................................................................... 23

Watson v. Ceva Logistics U.S., Inc.,

.... 619 F.3d 936 (8th Cir. 2010)..................................................................... 23

Weeks v. Kansas,

.... 503 F. App’x 640 (10th Cir. 2012)...................................................... 19, 20

Statutes

Title VII of the Civil Rights Act of 1964

.... 42 U.S.C. §§ 2000e et seq............................................................................ 1

.... 42 U.S.C. § 2000e-2(a)(1).......................................................................... 22

.... 42 U.S.C. § 2000e-3(a)................................................................ 5, 8, 12, 18

.... 42 U.S.C. § 2000e(b)................................................................................. 13

.... 42 U.S.C. § 2000e(f).................................................................................. 13

Fair Labor Standards Act

....

.... 29 U.S.C. § 215(a)(3)..................................................................... 11, 18, 19

Equal Pay Act of 1963

....

.... 29 U.S.C. § 206(d)..................................................................................... 18

Other Authorities

Brief of Amici Curiae Dep’t of Labor & EEOC,

.... Rosenfield v. GlobalTranz Enters., Inc.,

.... 811 F.3d 282 (9th Cir. 2015) (No. 13-15292), https://www.eeoc.gov/eeoc/litigation/briefs/globaltranz.pdf....................... 18

EEOC Enforcement Guidance on Retaliation and Related Issues,

.... No. 915.004 (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm........................................................................................ passim

STATEMENT OF INTEREST

The United States Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises issues pertaining to the scope of Title VII’s anti-retaliation provision. Because these issues are important to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. Whether the district court misapplied the standard for opposition articulated in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009).

2. Whether this Court should reject the “manager rule” in the Title VII context.

3. Whether, under the correct legal standards, a jury could determine that Plaintiff-Appellant Frank Cheatham reasonably believed that he opposed unlawful activity under Title VII.

STATEMENT OF THE CASE

I. Statement of Facts

Frank Cheatham began working for the City of Phoenix Fire Department (“Department”) in 1979. ER.54.[2] He was promoted to Deputy Chief in 2008 and was assigned to serve as one of the Deputy Chiefs at South Shift Command in 2009. ER.56.

South Shift Command was located next door to Station One, one of the Department’s fire stations. ER.63. Cheatham frequently went to Station One to eat dinner or say hello to the firefighters who worked there. ER.63-64. Around early November 2009, Captain Courtney Jenkins, who worked under Cheatham at South Shift Command, showed Cheatham a large pickle or pretzel jar that Jenkins had picked up from a table in Station One. ER.59, ER.61, ER.66. The jar featured two large drawings of male genitalia (penises and testicles). ER.66. According to Cheatham, Jenkins told him that the staff at Station One said the jar had been there for two or three days, and that he (Jenkins) was offended by the images on the jar. ER.66, ER.80. Cheatham testified that he believed that the explicit image on the jar “might not have been directly” “harassment towards [him,]” “but indirectly ... it was sexual harassment to anybody that viewed it.” ER.68.

Later that day, Cheatham noticed an image of male genitalia, rendered in black marker, on a nacho cheese machine in Station One’s kitchen. ER.65-66. The image was large enough for Cheatham to see it from “a distance away.” ER.65. Cheatham described the cheese machine image as “inappropriate material, sexual material in the workplace” and stated that he believed it was “illegal” and “definitely prohibited.” ER.67.

Cheatham reported the explicit images to his supervisor, Assistant Chief Todd Harms. ER.71-72, ER.81, ER.85, ER.125. Also, in an email, Cheatham admonished Station One Battalion Chief Bryant Johnston, his subordinate in rank, that the explicit drawings were “inappropriate,” and directed Johnston that “we need to remind our folks” that “[t]hese things should not be happening period.” ER.69-71, ER.130, ER.164-66, ER.202-04, ER.378. In an email responding to Cheatham’s message, Johnston asked Cheatham and Jenkins to stop taking meals at Station One. ER.69-70, ER.72, ER.74-75, ER.164-66.

Soon afterwards, Cheatham encountered a sexually explicit t-shirt draped over a machine at the gym shared by South Shift Command and Station One. ER.78-79, ER.81. The t-shirt was labeled “Station One” and depicted a penis and testicles. ER.78. A few days later, Cheatham saw Deputy Chief Brian Tobin, another South Station Shift Commander, wearing the same type of t-shirt in the workplace. ER.80, ER.127. Cheatham informed Harms about the t-shirts. ER.80-81.

Then, a short time after the t-shirt incidents, Cheatham received an envelope sent via interoffice mail that contained two pieces of pasta: one shaped like a penis and one shaped like a vagina. ER.81-82, ER.400. The vagina-shaped pasta was labeled “Frank,” Cheatham’s first name. Id. Cheatham found the pasta offensive and reported the incident to Harms. ER.81-82.

Then, in March 2010, Harms informed Cheatham that he was being reassigned to the Department’s Safety Division, purportedly due to a reorganization by the fire chief. ER.87. Although the reassignment to Safety did not affect Cheatham’s pay or benefits, the position was considered less prestigious, and the transfer significantly reduced Cheatham’s management responsibilities and left him with undefined duties and little work to do. ER.88, ER.119, ER.129. Cheatham filed a charge of discrimination, and the Commission issued a Letter of Determination finding reasonable cause to believe that the Department retaliated against Cheatham for complaining about a sexually hostile work environment. ER.168, ER.170-71.

I. District Court Decision

The district court granted summary judgment to the Department on Cheatham’s retaliation claim, on the rationale that Cheatham could not establish that he engaged in protected activity under the opposition clause of Title VII’s anti-retaliation provision. ER.14-15; see 42 U.S.C. § 2000e-3(a) (prohibiting retaliation against an employee who has opposed an unlawful employment practice).

First, the district court concluded that Cheatham could not demonstrate that he engaged in opposition. ER.10. Although the district court acknowledged that Cheatham reported “inappropriate sexual material in the workplace,” the district court differentiated between “reporting” and “complaining,” reasoning that only the latter constitutes opposition. ER.10-11. According to the district court, “[Cheatham] instructed his subordinate about the presence of sexual material in the workplace, and reported the presence of the material and the actions that he had taken or would take to address the issue with his superior.” ER.11. In particular, the district court characterized Cheatham’s testimony as stating that “Cheatham wanted to let his supervisor know what he had found and what he did, but was not asking Harms to do anything” about the explicit drawings. Id. Also, the district court stated that Cheatham “reported the incidents as a matter of official duty [and] ... in his capacity as Deputy Chief.” Id.

Second, the district court concluded that Cheatham’s claim failed because he “[did] not point to evidence which suggests that a reasonable person would find the sexual material was so objectively severe or pervasive that it altered the conditions of employment and created a work environment that a reasonable person would consider hostile and abusive.” Id. The district court acknowledged that the explicit images on the jar, cheese machine, and t-shirts were “generally not appropriate in a professional setting,” and that Cheatham testified that he found the images (and the pasta incident) offensive. ER.11, ER.13. However, the district court emphasized, among other things, that the images were not “about or directed to any individual.” ER.12. And although the district court acknowledged evidence that Jenkins found the image on the jar offensive, it reasoned that “that instance alone does not [sufficiently] aggravate the circumstances.” ER.12-13 (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001)).

Finally, the district court rejected Cheatham’s argument that he could have reasonably believed a hostile work environment was “in progress.” ER.12 n.8. The district court stated that “[n]one of the incidents were individually so extreme” and underscored that the incidents eventually ceased after Cheatham’s reports. Id. Also, the district court asserted that, had Cheatham reasonably believed a hostile work environment was in progress, “he would have further investigated” to identify the perpetrators and any victims and would have “taken action to prevent a descent into pervasive hostility.” ER.14 n.10.

SUMMARY OF ARGUMENT

The district court made several errors in concluding that Cheatham could not establish that he engaged in protected opposition or that he reasonably believed that the incidents he complained about violated Title VII. First, in determining that Cheatham’s reports of sexual material in the workplace did not constitute opposition under Title VII’s anti-retaliation provision, the district court misapplied the Supreme Court’s decision in Crawford. Second, the district court apparently applied the “manager rule,” a judicially-created exception to the Fair Labor Standards Act’s anti-retaliation provision, in rejecting Cheatham’s argument that he opposed unlawful activity. The majority of the courts of appeals that have considered the issue have rejected the manager rule in the Title VII context or questioned its underlying reasoning. This Court should follow those courts and should decline to adopt the manager rule because it is inconsistent with Title VII’s plain language and Supreme Court precedent. Third, a jury could find that Cheatham reasonably believed that the conduct he opposed was unlawful under Title VII. The district court misapplied the law in concluding otherwise.

ARGUMENT

I. The district court misapplied the Supreme Court’s standard for opposition articulated in Crawford.

In concluding that Cheatham could not establish opposition, the district court acknowledged that “Cheatham undoubtedly reported that there was inappropriate sexual material in the workplace,” but nevertheless concluded that Cheatham “[did] not point to any evidence that he opposed [unlawful] conduct by complaining.” RE.10. The district court’s distinction between “reporting” and “complaining” is in tension with the standard for opposition articulated in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009).

In Crawford, the Supreme Court emphasized that opposition includes a broad range of conduct: “When an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” 555 U.S. at 276 (quoting Brief for the United States as Amicus Curiae 9) (quotation marks omitted). In reaching this conclusion, the Court relied on the text of Title VII’s opposition clause, which “makes it ‘unlawful ... for an employer to discriminate against any ... employe[e] ... because he has opposed any practice made ... unlawful ... by this subchapter.’” Id. (quoting 42 U.S.C. § 2000e-3(a)). As the Court reasoned, “the [statutory] term ‘oppose’” “carries its ordinary meaning” because the statute does not define it. Id. Because “oppose” bears its typical meaning, “[t]he opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.” EEOC Enforcement Guidance on Retaliation and Related Issues § II(A)(2)(a), No. 915.004 (Aug. 25, 2016) (“EEOC Enforcement Guidance”), https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. “The communication itself may be informal and need not include the words ‘harassment,’ ‘discrimination,’ or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation.” Id. Given the “expansive definition” of opposition, id., conduct that the district court characterized as “reporting” may qualify as opposition.

The district court’s distinction between “reporting” and “complaining” also conflicts with Crawford insofar as it requires Cheatham to show “active opposition.” The district court suggested that Cheatham’s reports to Harms did not amount to opposition because Cheatham allegedly did not ask Harms to take any action in response to the explicit drawings. ER.11. On appeal, Cheatham questions the district court’s interpretation of the record, and argues that his conduct amounted to active opposition. Cheatham Br. 31-34. But even if the district court’s assessment of the record were correct, that does not matter under Crawford, which rejected the idea that Title VII requires active opposition. 555 U.S. at 277. In reaching that conclusion, Crawford again relied on the ordinary meaning of “oppose.” Id. As the Supreme Court explained, “‘[o]ppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it.” Id. Faulting Cheatham because he supposedly did not request further action from Harms conflicts with this ordinary interpretation of “oppose.”

II. This Court should reject the “manager rule” in the T itle VII context.

In concluding that Cheatham did not engage in opposition because he “reported the incidents as a matter of official duty,” RE.11, the district court echoed courts that have adopted an exception to Title VII’s anti-retaliation protections for employees who have a duty to report discrimination. This Court should follow the majority of courts of appeals and reject this exception—which is known as the “manager rule” or “job duties” exception—because it is contrary to Title VII’s plain text, Supreme Court precedent, and Title VII’s policy objectives.

The manager rule is a judicially-created doctrine that first arose in a Fair Labor Standards Act (FLSA) case more than thirty years after Congress enacted Title VII. See McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1485-87 (10th Cir. 1996) (holding that a personnel director who “report[ed] her good faith concerns about [her employer’s] possible wage and hour violations” “did not engage in protected activity” under FLSA because she “did not take a position adverse to her employer or assert any rights under the [statute]”). Under the manager rule, FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects managerial employees only if their protected activity involved “step[ping] outside” their managerial roles and “taking some action adverse to the company.” McKenzie, 94 F.3d at 1486. In the FLSA context, the Ninth Circuit has discussed the manager rule but has not squarely adopted it. See Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282, 287 (9th Cir. 2015) (“find[ing] it unnecessary to weigh in definitively on [the] question” of whether the manager rule is consistent with the fair notice standard articulated in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), but questioning whether the manager rule conflicts with the fair notice standard). As discussed infra at 15-20, several circuits have held that the manager rule does not apply in Title VII suits or have rejected the reasoning underpinning the rule, but some courts of appeals have imported the manager rule to the Title VII context.

This Court should decline to adopt the manager rule in Title VII suits because it is contrary to the plain language of Title VII’s anti-retaliation provision, which clearly and unambiguously protects all employees who oppose discrimination, regardless of their job duties. Title VII prohibits retaliation against “any individual” for opposing discrimination. 42 U.S.C. § 2000e-3(a) (emphasis added). The statute does not define “any,” so the term carries its ordinary meaning, see Crawford, 555 U.S. at 276, which “suggests a broad interpretation.” Kasten, 563 U.S. at 10 (construing FLSA). Therefore, “[n]othing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description or that Congress intended to excise a large category of workers from its anti-retaliation protections.” DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015); see also Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015) (“The plain language of Title VII’s opposition clause ... does not distinguish among entry-level employees, managers, and any other type of employee.”).

To hold that managers are protected only if they “step outside” their usual roles and take actions adverse to their employers would add language that is not in the statute, contrary to the principle that it is “Congress’s province” “to add words to [a] law.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (emphasis added). Congress could have expressly excluded managerial employees or others with a duty to report discrimination, but did not. In contrast, Congress included explicit exclusions in other provisions of the statute, see, e.g., 42 U.S.C. § 2000e(b) (defining “employer” to include only “person[s] engaged in an industry affecting commerce who has fifteen or more employees”); id. § 2000e(f) (excluding elected officials and certain appointees from the definition of “employee”). “When Congress provides exceptions in a statute,” courts should infer “that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.” Toor v. Lynch, 789 F.3d 1055, 1061 (9th Cir. 2015) (quoting United States v. Johnson, 529 U.S. 53, 58 (2000)).

Aside from conflicting with Title VII’s plain language, the manager rule is in tension with Supreme Court precedents interpreting Title VII’s text, purpose, and objectives. For example, the Supreme Court has repeatedly held that Title VII’s anti-retaliation provision “provide[s] broad protection from retaliation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (explaining that “Title VII’s antiretaliation provision is worded broadly” and holding that it applies to third-party reprisals); Crawford, 555 U.S. at 276 (recognizing that “opposition” includes a wide range of conduct); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that Title VII’s anti-retaliation provision applies to former employees). As Burlington Northern explained, broad anti-retaliation protection “helps ensure” “the cooperation of employees who are willing to file complaints and act as witnesses,” which is essential to “accomplish[ing] ... [Title VII’s] primary objective” of securing a discrimination-free workplace. 548 U.S. at 63, 67. Rather than advancing “broad protection,” the manager rule limits the scope of Title VII’s anti-retaliation provision. And, without protection from retaliation, employees who happen to fulfill a managerial role will be less likely to “cooperat[e],” “file complaints[,] and act as witnesses.”

Moreover, the manager rule conflicts with the principle—recognized in several Supreme Court decisions—that Congress intended Title VII to create incentives for employers to adopt policies and procedures that encourage prompt reporting, investigation, and remediation of discrimination. For example, Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), held that Title VII imposes an affirmative duty on employers to investigate harassment allegations to avoid liability for supervisor harassment. In so holding, the Court explained that Title VII’s “primary objective” is “to avoid harm,” and underscored that “recogniz[ing] the employer’s affirmative obligation to prevent violations” “would [ ] implement clear statutory policy.” Id. at 806 (citation and quotation marks omitted). Similarly, Faragher’s companion case, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764 (1998), emphasized that “Title VII is designed to encourage the [employer’s] creation of antiharassment policies and effective grievance mechanisms.” And Kolstad v. American Dental Association, 527 U.S. 526 (1999), which held that an employer may avoid punitive damages by showing that discriminatory employment decisions were “contrary to the employer’s good faith efforts to comply with Title VII,” recognized “Title VII’s objective of motivat[ing] employers to detect and deter Title VII violations.” Id. at 528, 546 (citation and quotation marks omitted).

The manager rule undermines the principle on which Faragher/Ellerth and Kolstad are premised. That is, the manager rule discourages managers and human resources employees from reporting or investigating discrimination as part of their job duties because the rule affords them no protection from retaliation. See DeMasters, 796 F.3d at 423 (explaining that the manager rule would “put in motion a downward spiral of Title VII enforcement” by encouraging managerial employees to “remain silent” about discrimination, allowing it “to go undeterred and unremedied”).

Instead of adopting the manager rule, this Court should follow the persuasive reasoning of several circuits that have rejected the rule or its underlying premises in the Title VII context. For example, in DeMasters, the Fourth Circuit underscored that the manager rule “has no place in Title VII enforcement.” 796 F.3d at 413. Relying on Title VII’s plain language and Supreme Court precedent, the court explained that the manager rule would have the “troubling” effect of leaving managerial and human resources employees without “protection from Title VII if they oppose discrimination targeted at the employees they are duty-bound to protect.” Id. at 422-23.

Similarly, in Littlejohn, the Second Circuit explained that “the manager rule’s focus on an employee’s job duties, rather than the oppositional nature of the employee’s complaints or criticisms, is inapposite in the context of Title VII retaliation claims.” 795 F.3d at 317 n.16. Citing Crawford and Title VII’s plain language, the Second Circuit held that an employee who “personally complain[s] or is critical about the [employer’s] discriminatory employment practices” engages in opposition, even if the employee’s “job responsibilities involve investigating complaints of discrimination.” Id. at 318 (citation and quotation marks omitted). Therefore, Littlejohn declined to adopt the manager rule, although the court noted its view that an employee who only transmits or investigates other employees’ complaints as part of his or her job duties has not engaged in opposition. Id. at 317 n.16, 318. Most recently, in Pippin v. Boulevard Motel Corp., 835 F.3d 180 (1st Cir. 2016), the First Circuit rejected a “job duties exception” to the Maine Human Rights Act’s anti-retaliation provision, explaining that the “critical point” in assessing protected activity “is an employee’s motivation in making a particular report or complaint.” Id. at 181 (citation omitted); see also Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 228 n.1 (1st Cir. 2007) (“Maine courts apply the [Maine Human Rights Act] in accordance with federal anti-discrimination law.”).

Applying similar reasoning, courts have emphasized that Title VII’s anti-retaliation provision extends to employees whose responsibilities include addressing workplace discrimination. In Johnson v. University of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000), the Sixth Circuit rejected the idea that “a high-level affirmative action official ... could not claim protected status under the opposition clause for his advocacy on behalf of women and minorities.” As the court explained, excluding the official from Title VII’s anti-retaliation protections “runs counter to the broad approach used when considering a claim for retaliation under [the opposition] clause, as well [as] the spirit and purpose behind Title VII as a broad remedial measure.” Id. Johnson emphasized that the opposition clause contains “no qualification on who the individual doing the complaining may be.” Id. Also, in Smith v. Secretary of the Navy, 659 F.2d 1113, 1121-22 (D.C. Cir. 1981), the D.C. Circuit concluded that Title VII’s anti-retaliation protections prohibited reprisals against an employee for his work as an EEO counselor, explaining that the employee’s “EEO work ... plainly falls within the protective ambit of the statutory language.” Id. at 1121; see also Littlejohn, 795 F.3d at 303, 318 (EEO director).

Additionally, the courts of appeals provide persuasive reasoning to limit the manager rule to FLSA, assuming the rule applies under that statute.[3] The Fourth Circuit explained that “differences in language and purposes between Title VII and FLSA” “counsel against importing the ‘manager rule’ into Title VII.” DeMasters, 796 F.3d at 422 (citation omitted). The First Circuit has also highlighted textual differences between FLSA’s and Title VII’s anti-retaliation provisions. Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 n.5 (1st Cir. 2010) (discussing but not reaching whether the manager rule applies to Title VII). That is, while Title VII’s definition of protected activity specifically encompasses both “oppos[ition]” and “participat[ion],” 42 U.S.C. § 2000e-3(a), FLSA’s definition of protected activity includes “fil[ing] any complaint,” “institut[ing] ... any proceeding,” and “testif[ying] ... in any such proceeding.” 29 U.S.C. § 215(a)(3). As the First Circuit put it, “[t]he FLSA’s antiretaliation provision does not contain an equivalent ‘opposition’ clause.” Collazo, 617 F.3d at 49 n.5. And, according to the Fourth Circuit, “the conduct protected by the FLSA is far more constricted than the broad range of conduct protected by Title VII’s anti-retaliation provision.” DeMasters, 796 F.3d at 422. As explained supra at 12-13, Title VII’s plain language does not support the manager rule. Therefore, even if the manager rule applies under FLSA, the textual differences between the two statutes militate against extending the manager rule to Title VII’s opposition clause.

Finally, the appellate decisions that have imported the manager rule into the Title VII context are not persuasive. The Tenth and Eleventh Circuits’ unpublished decisions in Weeks v. Kansas, 503 F. App’x 640 (10th Cir. 2012), and Brush v. Sears Holdings Corp., 466 F. App’x 781 (11th Cir. 2012), relied on FLSA case law without analyzing Title VII’s text or explaining why the manager rule should extend to Title VII suits. Weeks, 503 F. App’x at 642 (citing McKenzie, 94 F.3d at 1487-97 & n.8); Brush, 466 F. App’x at 787 (citing McKenzie, 94 F.3d 1478; Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008) (FLSA suit)). In fact, the panel in Weeks noted that “one might perhaps argue that [the manager rule] itself has been superseded” after Crawford, but declined to consider that argument because the employee failed to raise it. 503 F. App’x at 643.

Also, although this Court has cited EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998), as an example of a Title VII decision applying the manager rule, see Rosenfield, 811 F.3d at 287, HBE was decided before Crawford, and did not explicitly endorse the manager rule. Instead, in affirming a jury verdict for the Commission, the Eighth Circuit acknowledged the employer’s argument that the employee did not “‘step outside’ his [managerial] role.”135 F.3d at 554. The court reasoned that the employee’s “refus[al] to implement a discriminatory company policy ... placed him outside the normal managerial role,” but did not explain why the “step outside” standard should apply in the Title VII context. Id.; Foster v. Time Warner Entm’t Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001) (in decision issued before Crawford, citing HBE in determining that employee stepped outside managerial role, without explaining why that standard applies in the Title VII context); see also Collazo, 617 F.3d at 49 (explaining that, even assuming arguendo that the manager rule applies to Title VII, the employee put forth sufficient evidence to support favorable jury verdict).

III. The district court misapplied relevant legal standards in concluding that a jury could not find Cheatham had a reasonable belief that the conduct he opposed was unlawful under T itle VII.

The district court misapplied relevant law and employed faulty reasoning in determining that a jury could not find that Cheatham reasonably believed that he complained of unlawful conduct. As the district court acknowledged, to establish protected activity under the opposition clause an employee need only show that he reasonably believed that the opposed conduct violated Title VII, not that the opposed conduct actually violated Title VII. ER.9 n.6, ER.10; see also Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir. 1994); EEOC Enforcement Guidance § II(A)(2)(c). In the context of opposition to workplace harassment, the reasonable belief standard reflects that “[t]he hostile work environment liability standard is predicated on encouraging employees to ‘report harassing conduct before it becomes severe or pervasive.’” EEOC Enforcement Guidance § II(A)(2)(c) (quoting Ellerth, 524 U.S. at 764). Although the district court stated the correct standard, the court erred in assessing whether Cheatham could establish a reasonable belief by discounting incidents that were not directed at Cheatham himself, failing to analyze the cumulative effect of multiple incidents, and misapplying the principle that reporting a hostile work environment in progress is sufficient to show reasonable belief.

First, the district court misapplied the law to the extent that it disregarded or discounted incidents because they were not directed at Cheatham himself. Sexually explicit images displayed in the workplace—but not directed at any particular person—may be part of a hostile work environment, and therefore such images may be sufficient to satisfy the less-stringent reasonable belief standard. Courts have made clear that objectionable conduct “need not be directed at the complainant” to establish a hostile environment. Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (hostile educational environment under Title IX); see also, e.g., Hoyle v. Freightliner, LLC, 650 F.3d 321, 333 (4th Cir. 2011) (“[T]he totality of the circumstances includes conduct directed not at the plaintiff.”); Ladd v. Grand Trunk W. R.R., 552 F.3d 495 (6th Cir. 2009) (observing that, under the “totality of the circumstances” inquiry, “offensive conduct need not be directed at the plaintiff”).

This is because hostile work environment claims are premised on the principle that “requiring people to work in a discriminatorily hostile or abusive environment” alters the “terms, conditions, or privileges of employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)) (emphasis added); see also Spriggs v. Diamond Auto Glass, Inc., 242 F.3d 179, 184 (4th Cir. 2001) (noting that hostile work environment claims are “concerned with the ‘environment’ of workplace hostility”); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987) (explaining that the workplace “environment” is a “critical inquir[y],” and that “[e]vidence of a general work atmosphere [is] therefore ... an important factor” in assessing hostile work environment claims). Because explicit graffiti or other explicit images displayed in the workplace may alter the environment, courts have recognized that such materials—which may not be directed at any particular person—may contribute to a hostile work environment. See, e.g., Arizona v. ASARCO LLC, 773 F.3d 1050, 1060 (9th Cir. 2014) (en banc) (sexually explicit graffiti that was not directed at the plaintiff was relevant to hostile work environment claim); Watson v. Ceva Logistics U.S., Inc., 619 F.3d 936, 937-39 (8th Cir. 2010) (work environment included racist graffiti and display of other racist material); Bailey v. USF Holland, Inc., 526 F.3d 880, 884-85 (6th Cir. 2008) (same); Waltman v. Int’l Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (sexually explicit graffiti that was not directed at the plaintiff was relevant to hostile work environment claim). Since hostile work environment claims may be premised on sexually explicit materials that are not directed at a particular person, it stands to reason that such materials may trigger a reasonable belief. See EEOC Enforcement Guidance § II(A)(2)(e) Ex. 4 (explaining that “sex-based” graffiti in the workplace may trigger a reasonable belief even if it is not severe or pervasive).

Moreover, Title VII’s anti-retaliation provision protects not only victims of harassment, but also individuals who witness and report conduct that they reasonably believe violates the statute. EEOC Enforcement Guidance § II(A)(2)(c) (explaining that “the reasonable belief standard can apply to protect ... witnesses or bystanders who intervene or report what was observed”). Therefore, it follows that an individual who complains of sexually explicit images that do not target that individual may nevertheless enjoy anti-retaliation protection as a witness or bystander.

Second, the district court’s citation of Clark County School District v. Breeden, 532 U.S. 268 (2001), suggests that the court misapplied that decision and incorrectly analyzed Cheatham’s opposition to multiple incidents of harassment. The district court acknowledged record evidence that Jenkins expressed offense at the explicit image on the jar, but opined that “that instance alone does not aggravate the circumstances in such a way that a reasonable person could find it ‘extremely serious.’” ER.12-13. In doing so, the district court quoted Breeden, 532 U.S. at 271, with a parenthetical stating that a “‘mere offensive utterance ... unless extremely serious’ does not amount to actionable sexual harassment.” ER.13.

However, Breeden has limited relevance here. The district court was correct that Breeden recognized that “isolated incidents (unless extremely serious)” do not amount to a hostile work environment on their own. 532 U.S. at 271 (citation omitted). And it is true that the Supreme Court held that the “single incident” alleged in Breeden could not trigger a reasonable belief. Id. But Cheatham opposed multiple incidents of allegedly unlawful workplace conduct (the explicit images on the jar and cheese machine, the t-shirts, and the pasta), not a “single incident.” As the Supreme Court explained in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), hostile work environment claims are “based on the cumulative effect of individual acts.” Therefore, rather than assessing whether individual incidents independently triggered a reasonable belief, the district court should have analyzed whether the “cumulative effect” of the incidents that Cheatham opposed could trigger a reasonable belief, even if each incident was insufficient to trigger a reasonable belief “on its own.” Id.

Moreover, the district court’s citation of Breeden in deeming the jar incident insufficient to trigger a reasonable belief indicates that the court did not consider the interrelationship between severity and frequency. Because Cheatham opposed multiple incidents, the district court should have taken into account that the “level of severity or seriousness” necessary to establish a hostile work environment “varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Accordingly, in assessing Cheatham’s reasonable belief, the district court should have adjusted the severity threshold based on the frequency of incidents Cheatham opposed.

Finally, the district court employed faulty reasoning in concluding that a reasonable jury could not determine that Cheatham had a reasonable belief that a hostile work environment was “in progress.” The Fourth Circuit articulated the in-progress standard for assessing a Title VII plaintiff’s reasonable belief in Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc). Boyer-Liberto explained that “an employee is protected from retaliation when she opposes a hostile work environment that, although not fully formed, is in progress.” 786 F.3d at 282; see also EEOC Enforcement Guidance § II(A)(2)(c) & nn.55, 63-64 (agreeing with Boyer-Liberto’s in-progress standard). The Commission has also endorsed an alternative to the in-progress standard, the if-repeated standard. Under this standard, an employee is protected from retaliation when she reasonably believes that the conduct opposed could violate Title VII “if repeated.” EEOC Enforcement Guidance § II(A)(2)(c), (d) & n.64; see also Boyer-Liberto, 786 F.3d at 284 n.6 (explaining that it was unnecessary to determine whether the if-repeated standard applies).

As an initial matter, this Court should adopt the in-progress standard—

or, in the alternative, the if-repeated standard—because both standards assist courts in analyzing whether conduct that may fall short of an unlawful hostile work environment could nevertheless reasonably be perceived to violate Title VII. Moreover, the in-progress and if-repeated standards make sense because employers may avoid Title VII liability for harassment that goes unreported. See Faragher, 524 U.S. at 806-07 (explaining that, in cases of supervisor harassment not resulting in a tangible employment action, employers may avoid liability by showing that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer”); Nichols, 256 F.3d at 875 (explaining that an employer may be liable for co-worker harassment if it “knows or should know” of the harassment) (citation omitted).

Therefore, the in-progress and if-repeated standards avoid a “catch-22,” in which employees are forced either to report harassment with no protection against retaliation or to endure harassment and lose the right to have the employer correct it. See Crawford, 555 U.S. at 279 (describing “catch-22” that could result from overly narrow construction of “oppose”); see also Boyer-Liberto, 786 F.3d at 283; EEOC Enforcement Guidance § II(A)(2)(c). Also, encouraging harassment victims to report potentially unlawful conduct before it becomes actionable serves Title VII’s primary purpose of preventing unlawful discrimination. Faragher, 524 U.S. at 806 (Title VII’s “primary objective” is “to avoid harm”); Boyer-Liberto, 786 F.3d at 282 (“[E]arly reporting [is] vital to achieving Title VII’s goal of avoiding harm[.]”).

Although the district court correctly considered the in-progress standard (without explicitly adopting it), the court’s conclusion that a jury could not find that Cheatham reported a hostile work environment in progress does not withstand scrutiny. First, the district court emphasized that “[n]one of the incidents were individually so extreme.” ER.12 n.8. Here, the district court repeated the same error it made before: it failed to address whether the “cumulative effect” of multiple incidents could trigger a reasonable belief that a hostile work environment was in progress. See Morgan, 536 U.S. at 115 (2002); supra at 25. Second, the district court emphasized that, after Cheatham’s reports, the Department took corrective action and the offensive incidents ultimately ceased. ER.12 n.8. However, events that occurred after Cheatham’s reports do not shed light on whether Cheatham reasonably believed a hostile work environment was in progress at the time he made the reports. Third, the district court suggested that Cheatham should have done more to investigate the incidents and stop the perpetrators. But imposing a requirement of further investigation and action comes close to mandating the “active opposition” rejected in Crawford. 555 U.S. at 275, 277 (rejecting Sixth Circuit’s requirement of “active, consistent opposing activities”) (citation and quotation marks omitted); see also Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 211 F. App’x 373, 376 (6th Cir. 2006) (faulting plaintiff because she did not engage in “overt opposition” or “take any further action following the investigation and prior to her firing”), rev’d, 555 U.S. 271 (2009); supra at 9-10. In summary, this Court should adopt the in-progress or if-repeated standard, and should conclude that the district court erred in determining that a jury could not find that Cheatham had a reasonable belief.

CONCLUSION

In conclusion, the EEOC urges this Court to hold that a reasonable jury could determine that Cheatham engaged in protected opposition.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] The Commission takes no position on any other issues in this appeal.

[2] Citations to “ER.__” refer to the Excerpts of Record filed by Cheatham on October 28, 2016.

[3] In the EEOC’s view, the manager rule does not apply to FLSA, because the plain language of FLSA’s anti-retaliation provision protects all employees, regardless of job duties or job title. See 29 U.S.C. § 215(a)(3) (prohibiting retaliation against “any employee because such employee has filed any complaint”); see also Brief of Amici Curiae Dep’t of Labor & EEOC, Rosenfield v. GlobalTranz Enters., Inc., 811 F.3d 282 (9th Cir. 2015) (No. 13-15292), https://www.eeoc.gov/eeoc/litigation/briefs/globaltranz.pdf (advancing the Department of Labor and the EEOC’s position that the manager rule does not apply to FLSA). The EEOC has an interest in the proper interpretation of FLSA because the EEOC is responsible for enforcing the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d), which is codified in FLSA.