IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
Nos. 13-35997 & 13-35998
________________________
EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
AURELIA
GARCIA, WENDY GRANADOS, AMBROCIO MARIN, CIRILO MARIN, ANGELA MENDOZA, FRANCISCO
RAMOS, ELODIA SANCHEZ, GERARDO SILVA, and NORMA VALDEZ,
Plaintiffs-Intervenors,
v.
EVANS
FRUIT CO., INC.,
Defendant-Appellee.
-----------------------------------------
JUAN
MARIN,
Defendant-Intervenor.
____________________________________________________
On Appeal from the United States District Court
for the Eastern District of Washington, Spokane
Hon. Lonny Suko, United States District Judge
_____________________________________________________
INTRODUCTION
EEOC alleges that Evans Fruit Company,
through Juan Marin and Alberto Sanchez, retaliated against ten former employees
by threatening them for cooperating with EEOC’s investigation into alleged
sexual harassment by Marin and by spying on their interactions with EEOC. The
district court dismissed nine
of the claimants, finding insufficient non-hearsay
evidence that they were victims of unlawful retaliation. The court also
concluded that, while Gregorio Aguila heard the threats directly from Sanchez,
insufficient evidence linked them to Marin.
EEOC’s opening brief argued that EEOC could
prove its claims and link the conduct to Marin and EFC with admissible evidence.
EEOC also argued that the court applied improper standards in holding that
spying on and monitoring the claimants’ protected activity was not materially
adverse and that Francisco Ramos was not protected against retaliation.
EFC’s Response Brief largely ignores EEOC’s
arguments. For example, EFC opines that because the nine claimants heard about
the threats only indirectly, any testimony about these “relayed threats” would
be “inadmissible hearsay.” Yet EFC never responds to EEOC’s argument that it can
prove its case using only admissible evidence. Further, the company shapes
arguments around sentence fragments quoted out of context from caselaw and
EEOC’s brief, and its factual recitations distort the record. In short,
notwithstanding EFC’s arguments for affirmance, if the Rule 54(b) ruling is
correct, the judgment should be reversed.
ARGUMENT
1. EEOC’s opening brief explained that the
alleged unlawful adverse action in this case included spying on and threatening
the claimants. As the district court correctly concluded, threats, such as
Sanchez’s threat to “get even” with people cooperating with EEOC, may
constitute “materially adverse actions,” under Burlington Northern Santa Fe
Ry. v. White, 548 U.S. 53, 68-69 (2006), since, in “context,” the conduct
might well dissuade reasonable persons in the claimants’ position from engaging
in protected activity. EEOC argued that the appropriate context was the ranch
where Marin was considered “powerful” and “dangerous” and Sanchez, a key
subordinate of Marin’s, had a reputation for fighting. In that context, EEOC
argued, reasonable persons in the claimants’ position might well be dissuaded
from making or supporting a discrimination claim if they knew that, as a
result, they would be spied upon and threatened because they cooperated with
EEOC.
Throughout its Response Brief, EFC maintains
that this argument and underlying evidence are improper. See
EFC-Br.19-20, 22-23, 28, 33-35, 47-48. According to the company, by describing
Marin as “powerful” and “dangerous” and noting that Sanchez had a “reputation
for fighting,” EEOC based its argument on “quintessential character evidence,”
impermissible under Federal Rules of Evidence 404(a) and (b)(1). As support, EFC’s
brief quotes the same sentence from EEOC’s brief — “‘[t]hreatening the
individuals who participated in the library meeting and cooperated with EEOC is
entirely consistent with that use of power’” — three times. See
EFC-Br.19, 34, 48 (citing EEOC-Br.41/42). The company stresses that bad acts
and other character evidence are not admissible to show conduct in conformity
therewith on a particular occasion. See EFC-Br.19-20.
While EFC correctly states the rule, what
EFC points to from EEOC’s brief does not fall into the category of inadmissible
character and bad-acts evidence. Rule 404(b)(2) expressly provides that
bad-acts evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, [and] plan.” Fed.R.Evid.404(b)(2). Here,
the evidence is relevant to show what Marin and Sanchez were planning and why.
The quoted sentence appears in EEOC’s discussion describing measures Marin took
to discourage complaints and disrupt EEOC’s investigation since those
distractions interfered with efficient operation of the ranch. EFC describes
this as “pure speculation.” EFC-Br.48. A jury, however, might decide that it
is a fair inference based on the underlying facts.
Moreover, the challenged evidence provides a
backdrop — the “constellation of surrounding circumstances, expectations, and
relationships” — that would help a jury understand the “real social impact” the
threats and spying had on the claimants. See Burlington Northern, 548
U.S. at 69 (citation omitted). Marin described himself as “powerful” (ER-215)
— he essentially ran the ranch with the help of a few subordinates, including
Sanchez. In addition, based on their experiences with him, Norma Valdez, Gerardo
Silva, and Aguila, among others, considered Marin “dangerous.” ER-245(Valdez);
ER-269-72(Silva); ER-466(Aguila).
As for Sanchez, Silva recalled five or six
times when Sanchez had urged people, including Silva, to fight him. ER-273-75;
see also ER-157(A.Saldivar: Sanchez liked to fight). Taken as a whole,
such background evidence helps explain why the claimants would credit the
threats and fear that repercussions would follow from EFC’s monitoring and
spying on their interactions with EEOC. Rule 404 does not require its exclusion.
EFC also accuses EEOC of mentioning the
sexual harassment “allegations” (which, EFC notes, the jury rejected) “for one
purpose: to show that Marin is a ‘bad man.’” EFC-Br.23. To the contrary, EEOC
mentioned those allegations for two purposes, neither of which was to show
character. First, evidence suggests, Marin targeted Ambrocio Marin because he
assisted female employees, including Angela Mendoza, to file charges and
“supposedly” was “gathering women to file suit” against Marin. ER-376-77; ER-124-25.
Second, the alleged retaliation grew out of EEOC’s investigation into
allegations that Marin, in particular, was harassing female employees. Those
are facts, not character attacks. That a jury later found that EEOC failed to
prove its sexual harassment claim says nothing about whether when the threats
were made, the claimants would be apprehensive about cooperating with EEOC’s
investigation.
In short, contrary to EFC’s assertions that EEOC’s
arguments turn on inadmissible character/bad acts evidence, those arguments
were proper. EEOC was not required to ignore relevant evidence of Marin’s intent
and plan, or of matters that were influencing the claimants, merely because, in
EFC’s view, they present the ranch and management in an unflattering light.
2. As the district court correctly concluded,
Sanchez’s statements to Aguila — threatening to “get even” with people who
cooperated with EEOC, announcing that “they” had photographs from the library
meeting, and offering Aguila work and money in exchange for spying on future
meetings — were admissible as “verbal acts” or under the state-of-mind exception
to hearsay, Rule 803(3). Where the court erred, EEOC argued in its opening
brief, was in failing to hold that those statements can be linked to Marin
through Rule 801(d)(2)(D) and/or (E).
(a) Under Rule 801(d)(2)(D), statements
offered against an opposing party — EFC — and “made by the party’s agent or
employee” concerning “a matter within the scope of that relationship” “while it
existed” are not hearsay. EEOC argued that this rule applies to
statements by Marin and Sanchez.
Evidence amply supports a finding that Marin
was EFC’s “agent.” He was essentially responsible for the efficient operation
of Sunnyside ranch during the relevant timeframe. See ER-99, ER-108. Evidence
also suggests that Marin concluded that the ranch would operate more
efficiently without EEOC’s investigation into alleged sexual harassment.
Accordingly, Marin’s statements relating to protected activity are those of an
“agent,” admissible under Rule 801(d)(2)(D).
In addition, a factfinder could find that
Sanchez’s offers and threats were made at Marin’s behest, as his agent, and, so,
were also admissible under Rule 801(d)(2)(D). While Sanchez was a trusted employee,
Marin was the boss. And, unlike Marin, there is no evidence Sanchez would have
cared about EEOC’s investigation; no one charged him with harassment. Nor
would he have known about the library meeting and photographs, except through
Marin. Under these circumstances, a jury could find that Sanchez was
unlikely to invent and carry out a scheme to spy on and threaten people who
cooperated with EEOC, without Marin’s approval. Thus, a jury could find, Marin
was the other person in Sanchez’s “they” and, so, was linked to the threats and
other retaliatory conduct. See EEOC-Br.37-42.
EFC’s responses to this argument are unavailing.
First, the company downplays the importance
of Marin and Sanchez at EFC. Marin was just “one of [EFC’s] foremen” (EFC-Br.3),
and Sanchez was just “one of many crew leads” (EFC-Br.5). In thus describing
Marin, EFC ignores the Evanses’ testimony that from 2009 until his termination
in July 2010, Marin was de facto boss — “the” foreman — at Sunnyside ranch. He
was “a” foreman only because other EFC ranches also have foremen. In any
event, EFC would be liable for his actions even if Marin were only “one of
EFC’s foremen.”
As for Sanchez, EFC disputes EEOC’s evidence
that Sanchez was part of Marin’s inner circle, arguing that it consists of
“conclusory testimony” of a non-claimant, Alberto Saldivar. EFC-Br.6. This
merely raises a factual dispute. Saldivar had worked with Marin and Sanchez
and testified from personal observation; being a non-claimant arguably enhances,
rather than diminishes, his credibility. Moreover, there is other evidence. For
example, Aguila testified that when he was pretending to accept Marin’s offer
to kill Ambrocio during the FBI operation, Marin told him to get the gun from
Sanchez. See ER-457; see also ER-148 (Sanchez: describing
himself as “close” to Marin); ER-671 n.15 (noting Marin bailed Sanchez out of
jail and drove him to his deposition); ER-31 (factual issue whether Sanchez and
Marin acted in concert in enlisting Aguila to spy on EEOC meetings).
EFC also minimizes the threats, referring to
them dismissively as “generic.” EFC-Br.51; see also EFC-Br.32
(“inadmissible threats of an unknown nature”). But Title VII should not be
read to allow employers to make even “generic threats” against individuals to
deter and punish protected activity.
Next, EFC argues that the “mere fact that
Marin was Sanchez’s supervisor does not establish an agency relationship.”
EFC-Br.47. As support, the company cites Ellis v. Kneifl, 834 F.2d 128,
131 (8th Cir. 1987), noting that a “clerk is not [a] judge’s agent” under
Nebraska law. The case is inapt. The “clerk” in Ellis was a clerk of
courts, not a law clerk. Id. at 129. While rejecting the agency
argument, the decision sheds no light whether a judge in Nebraska “supervises”
the clerk of courts. And EEOC’s agency argument does not turn on the “mere
fact” that Marin supervised Sanchez.
EFC asserts that there is “no evidence” as to
the “existence or scope of an agency relationship” between Marin and Sanchez or
that “Marin instructed Sanchez to make contact with Aguila or threaten meeting
participants.” EFC-Br.47. This ignores the evidence listed above and
throughout EEOC’s opening brief. At a minimum, if believed, Marin’s first
words to Aguila when he called on February 12 — “Have you talked to Alberto
Sanchez?” (ER-212) — virtually compel a finding that Marin instructed Sanchez
to contact Aguila. And while EEOC agrees there is no direct evidence Marin
told Sanchez to threaten the claimants, the circumstantial evidence fully
supports such a finding. Cf. Desert Palace v. Costa, 539 U.S. 90,
100 (2003)(noting that “[c]ircumstantial evidence is not only sufficient, but
may be also be more certain, satisfying, and persuasive than direct evidence”).
Despite EFC’s assertions (EFC-Br.48,
EFC-Br.34-35), therefore, EEOC is not asking the Court “to presume facts
and make inferential leaps based on inadmissible evidence.” Rather, ample admissible
evidence indicates that for the events in this case, Marin exercised authority
implicitly or explicitly delegated to him by EFC, and Sanchez acted at Marin’s
behest: both were “agents” for Rule 801(d)(2)(D) purposes. Their statements
may properly be attributed to EFC.
(b) EEOC also argued that statements by
Marin and Sanchez are admissible under Rule 801(d)(2)(E), as statements by co-conspirators
“during and in furtherance of the conspiracy.” Beginning with Sanchez’s first
“they” and Marin’s subsequent “have you spoken to Sanchez,” the two men’s
parallel conduct and statements — alternately, rewarding, threatening, and
demanding information from Aguila — strongly suggest that they were working together
towards an unlawful objective — deterring and punishing protective activity. That
Aguila was offered compensation in exchange for spying — and in fact got paid —
provides the “independent evidence” necessary for a conspiracy finding. Viewed
as a whole, the evidence supports a finding that Marin and Sanchez were
co-conspirators. See EEOC-Br.42-45.
Moreover, EEOC argued, the district court’s
erroneous conclusion — that Marin was not connected to the threats against the
claimants for cooperating with EEOC — was based largely on the court’s failure
to consider most of Marin’s actions and statements. EEOC noted that the
decision mentions only three of Marin’s statements and essentially ignores the
rest of what he did and said — including his statement that he would kill
Aguila if he cooperated with EEOC — as they relate to Sanchez and Aguila in the
days and weeks after the library meeting. See EEOC-Br.42-48 (discussing
ER-24-31). Having failed to consider all of the evidence, EEOC argued, the
court erred in finding that Marin and Sanchez were not involved in an unlawful
retaliatory scheme. EEOC-Br.46-48.
EFC’s response focuses exclusively on
Intervenors’ brief. Listing only some of the evidence Intervenors discuss, the
company argues that it cannot support a finding of conspiracy. See
EFC-Br.45-46 (citing I-Br.39). Further, EFC adds, the “little independent
evidence of conspiracy” was “offered through Aguila’s testimony alone.” Id.
EFC’s dismissive reference to “Aguila’s
testimony alone” suggests such evidence is inconsequential. To the contrary,
an individual’s testimony, based on “personal knowledge” and presenting his
“side of the story,” is “perfectly admissible evidence” that a district court
errs in discrediting. Hill v. Tangherlini, 724 F.3d 965, 968 (7th Cir.
2013).
More importantly, EFC simply ignores EEOC’s
arguments, which focus on the parallel actions and statements of Sanchez and
Marin. The company never mentions EEOC’s brief, arguments, or cases. They therefore
stand unrebutted.
Instead, EFC argues that the court did not
clearly err in finding “insufficient evidence to determine the existence of a
conspiracy.” EFC-Br.45-46. EFC admits, however, that besides Sanchez’s
statements, including the word “they,” the finding is based on Marin’s three
statements. See EFC-Br.46. Since it was not based on all of the
evidence, therefore, the finding is clearly erroneous. See Myers v.
U.S., 652 F.3d 1021, 1023, 1034 n.6 (9th Cir. 2011)(whether factual
findings “are clearly erroneous depends upon the ‘entire evidence’ in the
record”; clear error if trial court “apparently ignored relevant evidence”)(citing
U.S. v. Hinkson, 585 F.3d 1247, 1259-60 (9th Cir. 2009)(en banc)).
EFC also makes three related points in its
“Nature of the Proceedings Below.” First, the company states, incorrectly,
that EEOC cited nothing to support “its assertions that Aguila actually
reported on the meetings or was paid for information.” EFC-Br.18-19. In fact,
EEOC’s brief cites Aguila’s testimony that he reported and was compensated with
money and work. See EEOC-Br.16-18 (citing, e.g., ER-444-47:
despite his fear, Aguila kept working for Marin and getting paid; Marin called
him to work “because Marin wanted to know what the meetings with the attorneys
[were] about, what people had problem with the company”; Aguila would do some
work and then Sanchez “would ask [him] about the meetings”).
Second, curiously, EFC disputes that EEOC
contacted the FBI over concerns that Marin engaged in witness tampering.
EFC-Br.18 n.13. In fact, Aguila testified that he met with two FBI agents,
they recorded his cell-phone calls with Sanchez, and, at their request, Aguila
wore a wire to two encounters with Marin. See ER-455-59, ER-472-74.
This testimony is admissible.
Third, EFC takes issue with EEOC’s reference
to Sanchez’s testimony that, if asked, he would help Marin do anything that
would not get him into trouble (EEOC Br.6-7 (citing ER-148)). EFC argues that this
testimony “in no way indicates that Sanchez was willing to harass, threaten,
intimidate, assault, or murder on Marin’s behalf.” EFC-Br.22-23. There is, however,
admissible evidence that Sanchez did “threaten” and “intimidate” Aguila and the
other claimants. ER-212-14. Assuming that evidence is believed, the
question is whether Sanchez acted on his own or “on Marin’s behalf.” In EEOC’s
view, given the likelihood that trouble could follow from the threats and
spying, a jury could find that Sanchez would not have engaged in that activity,
without Marin’s authorization and/or cooperation.
3. EEOC’s opening brief argued that the
district court erred in holding that EEOC could not prove that nine of the ten
claimants were threatened for cooperating with EEOC. As the district court correctly
acknowledged, Aguila could testify that Sanchez made the threats, which
extended to all ten claimants. Thus, the brief argued, EEOC could proffer
sufficient non-hearsay evidence to establish an adverse action since Aguila
could testify, permissibly, to what Sanchez said. The claimants could then
testify to the effect the threats had on them for purposes of showing damages
and as evidence that reasonable persons in the claimants’ position would find
the threats materially adverse. See EEOC-Br.48-51.
EFC’s response brief does not directly
answer this argument. Rather, here, and throughout its brief, the company misstates
the adverse action requirement. Most frequently, EFC uses the term “adverse employment
action.” EFC-Br.27-28, 31, 36, 38, 42-43. In fact, the challenged conduct
need not be employment-related. Burlington Northern specifies that the
“scope of the anti-retaliation provision extends beyond work-related or
employment-related acts and harm.” 548 U.S. at 67. Little v. Windermere
Relocation, 301 F.2d 958, 969 (9th Cir. 2002), which EFC cites for the
standard, pre-dates Burlington Northern.
EFC also argues, incorrectly, that Title VII
prohibits only conduct “which produces harm and would deter a reasonable
person from participating in a protected activity.” EFC-Br.37(emphasis
added). “Harm or injury,” though relevant to damages, is not a separate element
of adverse action. Conduct is harmful if it meets the
“might-well-have-dissuaded” standard. See Burlington Northern, 548
U.S. at 67-68; see also Martin v. Gates, 2008 WL 4657807, *10
(D.Haw. Oct.20, 2008)(“court does not focus on actual harm but on the potential
for deterrence”), cited at EFC-Br.38.
EFC then makes several arguments centered
around the phrase “relayed threat.” See EFC-Br.38-44. First, without citing
EEOC’s brief, EFC disagrees with what it characterizes as EEOC’s position: “a
threat can be relayed and the communication will continue to be admissible as a
verbal act ad infinitum.” EFC-Br.39-40. EFC does not dispute that
Aguila could testify, permissibly, that Sanchez told him “they” planned to get
even with all the claimants. However, EFC argues, as soon as Aguila “relayed”
the threats to a “third party” — counsel or another claimant — they became
“inadmissible hearsay.” According to EFC, this is because the “relayed threats”
would be “offered for their truth” — “that a threat was actually made to Aguila
and relayed to [the third party].” Id.
This makes no sense. Admissible evidence of
the threat is not transformed into inadmissible hearsay merely because the
information was “relayed” to someone else. What matters for hearsay purposes is
who would testify about the threat. Here, that witness would be Aguila — not
the claimants. Claimants’ testimony would be limited to non-hearsay matters,
such as explaining how they learned about the threats and reacted to that information.
The fact that EEOC would not rely on the
claimants to prove that the threat was made distinguishes all of the cases EFC
cites. In those cases — Thomas v. iStar Financial, 438 F.Supp.2d 348,
366 (S.D.N.Y. 2006); Delaney v. LaHood, 2009 WL 3199687, *19 (E.D.N.Y.
2009); Dunlap v. Wayne, 105 Wn.2d 529, 535-36, 716 P.2d 842, 846-47
(1986) — the plaintiff never heard the statements but nevertheless planned to
testify that the statements were made, which would be hearsay. The challenged
statements could not be proved without hearsay because the person who heard the
statements would not be testifying. In contrast, here, the person who heard
the threats — Aguila — would testify about what Sanchez said.
EFC notes EEOC’s argument regarding the
scope of the claimants’ testimony. See EFC-Br.43. According to EFC,
however, this argument is unavailing because “notice and effect are irrelevant”
without the threat, and EEOC intends “to use Sanchez’s statement, not for
notice or for the effect on the listener, but to prove [] a threat was made.”
In EFC’s view, that would be inadmissible hearsay. EFC-Br.43-44.
EEOC agrees that notice and effect would be
irrelevant without the threats. EEOC also agrees that EEOC would proffer
evidence of the threats to prove they were made. What EFC refuses to
recognize, however, is that EEOC can prove that point without testimony from
the nine claimants. That is a key to this case and a critical distinction
between it and the hearsay cases cited by EFC.
Next, EFC argues that Title VII “requires an
employee to show not just an ‘adverse employment action’ but “‘an adverse employment
action taken against [him or her].’” EFC-Br.42-43 (quoting Little,
301 F.3d at 969)(emphasis added by EFC). The nine claimants were not “subjected
to” the threats because, EFC argues, they heard them indirectly. EFC-Br.43(EFC’s
emphasis).
This argument has several flaws. As noted
above, supra at page 14, Title VII’s anti-retaliation protection is not
limited to employment-related actions. Moreover, EFC couches the argument as a
rebuttal to EEOC’s supposed advocacy of criminal law standards as a model for
interpreting Title VII’s anti-retaliation provisions in order to “avoid the
evidentiary hurdle of the hearsay rules.” See EFC-Br.41-42(citing
EEOC-Br.34). A glance at the actual passage from EEOC’s brief, rather than the
excerpt EFC quotes, confirms that EEOC made no such argument.
Most importantly, however, this argument
suggests, without relevant citation, that not only must victims be threatened;
they must also be able to testify that they heard the threats directly. See
EFC-Br.42-43; EFC-Br.41 (“claimants must have actually received the threat”).
This mistakenly mixes evidentiary rules with the standard for Title VII
retaliation.
Whether threatening statements constitute materially
adverse actions does not turn on whether the victim heard the statements
directly and/or can testify about them without incurring hearsay problems.
Rather, such statements are materially adverse if they meet the Burlington
Northern standard. Whether they can be proved with admissible evidence is
a separate question. As to the second question, in this case, unlike in EFC’s
cited cases, the statements can be proved without hearsay, through Aguila. As
to the first question, that is for the jury to decide.
EFC points out that the record contains no
evidence as to how and when Silva, Valdez, and Elodia learned of Sanchez’s
threats. EFC-Br.9, 12-13, 16. Circumstantial evidence, however, suggests they
would have known. Claimants discussed the threats at meetings with EEOC
(ER-598-99), and Silva testified in connection with the preliminary injunction motion
(ER-259); he presumably would have shared the information with Valdez, his
partner (ER-665). In any event, any lack of knowledge would affect damages for
these claimants but not EFC’s overall liability.
As for Elodia, as Aguila’s partner, she
accompanied Aguila when he worked at Sanchez’s house as payment for agreeing to
spy. ER-471. She likely would have heard about the threats especially since
Aguila shared other information and threats with her. See, e.g.,
SER-363. EFC suggests that she was not afraid for herself, noting her
testimony that she agreed to be deposed for the preliminary injunction hearing
(SER-361-62) because Marin had threatened to kill Aguila. EFC-Br.48. But
Elodia also testified, for example, that she was afraid to go outside in San
Diego after Marin tracked the family down there. I-ER-364-65. And
threats to kill one’s partner might well dissuade reasonable persons in the
claimants’ position from cooperating with EEOC. Cf. Thompson v. N.Am.
Stainless, 131 S.Ct. 863 (2011)(firing fiancé).
Lastly, EFC argues that the subjective
impact the threats had on the claimants, including the fact they were afraid,
is irrelevant because the Burlington Northern standard is objective.
EFC-Br.35-36, 44. The company does not, however, develop this point or respond
to EEOC’s argument on this point. Rather, lifting a clause out of context from
Taylor v. Mills, 892 F.Supp.2d 124, 149 (D.D.C. 2012), EFC asserts that
“‘fear is insufficient to constitute an adverse employment action unless the
plaintiff can point [] to ... objective evidence that such a fear had a basis
in fact.’” EFC-Br.36 (internal citation omitted).
EEOC is not arguing that “fear,” with or
without a factual basis, constitutes an adverse action. Rather, EEOC’s
argument is that evidence of the claimants’ fear is relevant to matters such as
damages.
Taylor is not to the contrary. The quoted
clause is from a passage addressing plaintiff’s argument that various incidents
described as “bad management practice[s]” should collectively be considered an
adverse action because they caused plaintiff concern about his career goals.
The court noted that plaintiff offered no evidence that the incidents, even
collectively, threatened his career. The court concluded, “although a
plaintiff might fear that his ‘career goals’ may be in jeopardy, that fear is
insufficient to constitute an adverse employment action unless the plaintiff
can point to ... objective evidence that such a fear had a basis in fact.” 892
F.Supp.2d at 148-49(citations omitted); see id. at 144(basing
decision on the “particular context of the plaintiff’s situation”). In any
event, unlike in Taylor, here, there is evidence claimants’ fear did
have a “basis in fact.”
4. EEOC’s opening brief argued that the
district court erred in concluding that as a matter of law, spying and
eavesdropping on the library meeting with EEOC, and photographing the
participants, did not constitute actionable retaliation. EEOC noted that the
challenged conduct took place in a public library, in the small town where the
main employer was the ranch where Marin was the de facto boss. The
participants were meeting with EEOC to discuss alleged sexual harassment by
Marin and, although they expected to meet privately, a scheduling conflict
forced them out into the main reading room.
As EEOC also noted, the alleged adverse
action centers around Alvaro Rojas and Domingo Cuenca, who offered various
versions of how they came to be at the library during the meeting. EEOC-Br.10-11.
All of the versions involved making copies although no one testified to seeing
— or hearing — any such copying. The men were, instead, observed hovering
around the participants, carefully noting who was there and listening intently
to the conversations. Several people knew that Rojas was intensely loyal to
Marin and feared he would immediately report their presence — which he did. EEOC-Br.13.
Several people also saw a cell phone. EEOC-Br.12. Aguila saw someone
taking pictures with a cell phone(ER-211-12); although the men denied
it, evidence suggests that pictures were taken and, by the next day, had
reached Sanchez. ER-212. Aguila, Elodia, and Wendy Granados were so
unnerved by the men’s scrutiny that they immediately left the meeting. See
EEOC-Br.8-14; EEOC-Br.52-54.
A jury, viewing this constellation of
surrounding circumstances, expectations, and relationships, EEOC argued, could
find the appearance of these particular men at this particular place at this
particular time doing nothing except eavesdropping and spying on the
participants to be materially adverse. The court’s contrary ruling failed to
consider “context” or the perspective of a reasonable person in the claimants’
position. EEOC-Br.52-56.
EFC responds by repeating the court’s
conclusion that “the mere presence of Rojas and Cuenca in the public library in
no way constitutes retaliation.” EFC-36. Like the court, EFC reaches this
conclusion without acknowledging that the proper perspective is a reasonable
person in the claimants’ position. EFC-Br.32, 37-40.
The company bases its conclusion on a
distorted version of the facts.
According to EFC, two “alleged” EFC employees “happened to” come to the library
to make copies and stumbled upon at least 12 people — 10+ claimants and counsel
— who were holding a meeting “no more than a few feet from the library’s main
entrance.” EFC-Br.3. EFC comments: “more than a dozen people gathered near
the entrance of a small town public library [are] going to be noticed.” EFC-Br.4;
accord EFC-Br.35, 38. In EFC’s version of the events, one of the
“alleged” employees, Rojas, recognized some people at the meeting as ones
involved in an earlier “unrelated lawsuit” against EFC. At his urging, the men
quickly took roll. They then moved to the coin-operated copier, made copies,
and left. Rojas “denied” asking Cuenca on the way out to “look in the window
to see who was there.” EFC-Br.5 n.7. The whole incident lasted “mere
minutes.” EFC-Br.3; EFC-Br.35. Four claimants never saw the men; Granados did
not recognize them. Ambrocio and Silva saw them but did not find their
presence threatening. EFC.Br.36. On the drive home, the men compared notes
about who they had seen, but it was just “conversation.” EFC-Br.5. These
events, EFC concludes, were “happenstance” (EFC-Br.28, 36), including the fact
that Rojas later mentioned the meeting to Marin, naming participants.
A jury might, but would not have to, credit
this description. For starters, there is no evidence EEOC held the meeting a
few feet from the entrance. Rather, evidence confirms that the participants
were seated at tables, women towards the front, men “in a separate group
farther away ... behind aisles of books.” ER-237(Valdez); see SER-254(photo
of library). Nor did Rojas and Cuenca stay up front. Since Rojas told Marin
that Ambrocio, Cirilo, Aguila, and Silva were at the meeting (ER-622), and the
men were “towards the back” (ER-257), Rojas and Cuenca could have seen them
only by moving into the reading room, away from the door and copier. See
ER-256-57(Silva: Rojas and Cuenca moved into the room “as if to go [see] who
else was there”); see also ER-237 (by standing up, the men could see the
front of the library). Furthermore, since Rojas also told Marin that Valdez
was there (ER-341), and Aguila, Silva, and Valdez were not involved in the
“unrelated” lawsuit (ER-Br.4), the so-called “lawsuit” more likely referred to
the charges and investigation. Rojas admitted “comment[ing]” to Cuenca
to look through the window as they were leaving to doublecheck their list of
participants, but denied it was an “instruction” (ER-319-20); Cuenca testified
that Rojas told him to take another look (ER-431-32). Rojas admitted passing
the information to Marin because Marin had made it clear he wanted to hear
about such sightings. ER-318-22. As for how long the men stayed at the
library, a jury could find they could not have accomplished everything in “mere
minutes,” particularly since under one version of their stories, this was their
first time supposedly making copies at the library. ER-438-40.
Finally, while four of the ten participants
did not “see” the men, six did, and another, Ramos, heard Aguila say they were
there. ER-330-33. While Granados did not recognize the men, she left
immediately because their intense scrutiny frightened her. ER-585. As for
whether Silva and Ambrocio found the men’s presence “threatening,” Silva testified
that he “felt fear” (ER-569) and Ambrocio testified that he “became scared”
that Marin would soon know about his involvement in the sexual harassment
case. ER-182. Accord ER-233 (Valdez: describing “fear of having those
two people there when we had the meeting”).
Thus, the material facts are, at best,
genuinely in dispute. “[C]ourts may not resolve genuine disputes of facts in
favor of the party seeking summary judgment.” Tolan v. Cotton, 134
S.Ct. 1861, 1866 (2014).
Additionally, EFC disputes EEOC’s proposed
“context,” which EEOC described as the “ranch where Marin was viewed as
‘dangerous’ and ‘powerful’ and Sanchez had a reputation for fighting.” See
EFC-Br.34(citing EEOC-Br.36). EFC initially contends that EEOC did not link
this “context” to the claimants. As EEOC’s opening brief explained, however,
the claimants had reason to fear Marin. See, e.g., EEOC.Br.7-9, 23-24;
ER-681 n.3 (three had filed charges against Marin, others were future claimants);
ER-197-226(declarations); ER-269(Marin offered money to kill his cousin).
The company then appears to contend that
EEOC’s proposed “context” is not properly “tied” to a “retaliatory act.”
According to EFC, the “materiality standard and the context in which it is
applied ‘is tied to the challenged retaliatory act.’” EFC-Br.33 (quoting Burlington
Northern, 548 U.S. at 69). But, according to the company, “[h]ere, there
are no acts to put into context, only amorphous context,” since, EFC asserts,
“there is no evidence that Marin made a ‘threat against [the claimants]’”
(though Sanchez may have done so). EFC-Br.33-34. Thus, EFC concludes, because
there was no “retaliatory act,” the “materiality standard” is not met — no
reasonable person would be deterred from engaging in protected activity based
solely on “context.” EFC-Br.33-34 (citing EEOC-Br.36-37[not 43]).
This argument and conclusion are premised on
a faulty assumption. As discussed in this and EEOC’s opening brief, there is
evidence from which a jury could find that Sanchez threatened the claimants and
that Marin condoned or engineered such threats. See supra at pages
6-13 (conspiracy and agency discussion). Thus, spying on and threatening the
claimants are “acts” that should be evaluated in “context” from the perspective
of reasonable persons in the claimants’ position to determine whether they were
materially adverse.
EFC then asserts that the “crux” of EEOC’s
argument is that “Marin must have had something to do with Rojas and Cuenca’s
presence at the library and the threat received by Aguila from [Sanchez]
because [Marin] is a bad man.” EFC-Br.34-35(citing EEOC-Br.42-43).
To the contrary, unlike EFC, EEOC never
described Marin as a “bad man.” Compare EFC-Br.23, 33-34. EEOC argued,
consistent with the preliminary injunction order, that a jury could find Marin
“had something to do” with the presence of Rojas and Cuenca at the library
based on the circumstances, discussed above, surrounding their visit and, for
example, the facts that Sanchez almost immediately had photographs of the
participants, and Marin promptly hired Aguila to spy on future meetings. See,
e.g., ER-212-13. EFC may argue smoke and mirrors, but a jury need not
agree.
Finally, EFC takes issue with EEOC’s
argument that caselaw under other labor laws provides a useful analogy for
evaluating the impact of threatening behavior on employees. EEOC-Br.55-56
(citing Konop v. Hawaiian Airlines, 302 F.3d 868, 884 (9th Cir. 2002)(“[a]bsent
a legitimate justification,” employers are generally prohibited from engaging
in surveillance of union activities since such surveillance “tends to” create
fear and chill protected activity)).
EFC contends that this “argument” was waived
because EEOC raised it for the first time on appeal. EFC-Br.36-37. It is not
a new “argument,” however; only new authority.
EFC then argues that surveillance by Rojas
and Cuenca would not be actionable even under labor law. EFC-Br.37-38 (citing Local
Jt. Exec. Bd. of Las Vegas v. NLRB, 515 F.3d 942, 945-46 (9th Cir. 2008)).
According to EFC, the NLRA allows managers to “‘observe public union activity
... unless officials do something out of the ordinary.’” EFC-Br.37 (quoting
515 F.3d at 945). EFC notes that to determine whether surveillance is
coercive, this Court considers three factors: the “duration of the observation,”
the “employer’s distance from its employees,” and whether “other coercive
behavior occurred during the observation.” Id.(citing 515 F.3d at
946). Applying those factors here, the company concludes that the surveillance
was not unduly coercive because “none of the claimants were employed by Evans
Fruit, the observation was brief, Cuenca and Rojas did not come into contact
with the attendees, and their presence was not coupled with any behavior,
coercive or otherwise.” EFC-Br.37-38.
This reasoning is flawed. Although EFC omitted
this limitation, Joint Executive Board and other cases make clear that
the test applies to observation activity on or near company premises. See 515
F.3d at 946 (company lunchroom). Here, Rojas and Cuenca were at the local
library. Nor is employment status a factor either in this test or under Burlington
Northern.
As for the three factors, regardless of how
the first two play out, a jury could find the company fails the third.
Evidence indicates that in addition to taking down names and eavesdropping at
the meeting, Rojas and/or Cuenca photographed the participants. Not only did
Aguila see and alert others that someone was taking pictures but Sanchez
confirmed that they had photographic proof of Aguila’s presence, despite his
early departure. Participants were already apprehensive about cooperating with
EEOC against EFC and Marin, so photographs memorializing their presence could easily
chill further protected activity. Cf. Nat’l Steel & Shipbldg.
Co. v. NLRB, 156 F.3d 1268, 1271-72 (D.C. Cir. 1998) (Board could
reasonably conclude that video surveillance of union activities had a tendency
to coerce employees even though some employees were indifferent to it); Programming
& Sys., 275 NLRB 1147, 1147 (1985)(name-taking of employees during protected
activities, when witnessed by company employee, tends to restrain and coerce
employees in exercising their rights).
5. EEOC’s opening brief argued that the
district court erred in holding that Ramos was not protected by §704(a) because
he attended the library meeting to support his wife (the original charging
party), rather than as a “potential witness or claimant.” EEOC noted that the
plain language of Title VII’s “participation clause” protects everyone who,
like Ramos, “assisted or participated” “in any manner” in an EEOC
“investigation or proceeding.” 42 U.S.C. §2000e-3(a). Under Thompson,
131 S.Ct. at 870-71, Ramos should be covered whether his attendance is
considered active participation or he simply fell within the “zone of interest”
protected by the provision. EEOC-Br.56-60.
Without responding to EEOC’s brief, EFC
argues that Ramos is unprotected because he was “essentially” a “bystander.”
EFC-Br.50-51. The company cites pre-Thompson district court decisions
that, according to EFC, indicate that a “third-party” is covered by §704(a) if
he has a “sufficient” connection with a charging party, he has done something
that would allow the employer to perceive that he was assisting that
individual, and his perceived assistance caused the adverse action.
EFC-Br.50. In EFC’s view, EEOC cannot establish these factors with respect to
Ramos because (like Mendoza) he no longer worked at EFC, witnessed no sexual
harassment, and simply drove Mendoza to the meeting and sat with her there. EFC-Br.50-51.
EFC attempts to distinguish Thompson on the ground that plaintiff there
was fired because of a “family member’s protected activity, not [his] own,”
whereas Ramos “was not the focus of any alleged retaliation” but was simply
“included in a generic threat against all meeting participants.” EFC-Br.51.
These arguments do not support EFC’s
conclusion. For one thing, Ramos’s situation arguably satisfies EFC’s own three-part
test. As Mendoza’s husband, Ramos had a “sufficient” family connection. Ramos attended the meeting at EEOC’s invitation (ER-328),
and was likely photographed with Mendoza there. As EFC concedes, he was included
in the “generic threat against all meeting participants” solely because he
attended the meeting and supported his wife. Burlington Northern
specifies that §704(a) prohibits conduct that might well dissuade a reasonable
person in the claimant’s position from “supporting” a discrimination
claim. See 548 U.S. at 68. Knowing that the defendant would spy on,
photograph, and threaten to get even with him for cooperating with EEOC might
well deter an individual from supporting a discrimination claim. Thus, despite
EFC’s argument, the district court’s ruling should be reversed.
6. EFC invites this Court to find, as an
initial matter, that Vance v. Ball State University, 133 S.Ct. 2434
(2013), relieves the company of responsibility for the alleged retaliatory
conduct of Marin and Sanchez. See EFC-Br.52. The invitation should be declined.
EFC is essentially asking this Court to make
factual findings, using non-record materials, on whether Marin and Sanchez are
“supervisors.” Although EFC belatedly attempted to raise this issue in a
reconsideration motion, the district court rejected the motion as untimely,
noting that it was filed long after Vance was decided and judgment had
been entered in this case. See Doc.323. Thus, contrary to EFC’s
unsupported assertions (EFC-Br.5 n.8), the court never “took judicial notice”
of the snippets of testimony cited by EFC to support its argument (EFC-Br.53)
and never decided the underlying issue. There will be ample opportunity to air
the issue later in the district court — regardless of the outcome of this
appeal — since EEOC’s claim with respect to Aguila remains pending below.
In any event, Vance is not relevant
to this appeal. As EFC itself points out, Vance addresses the question
of supervisory status for purposes of imputing liability in
hostile-work-environment cases. This is not a hostile-work-environment case.
Moreover, given Marin’s status as a high-level manager, the company is clearly
liable for his conduct under any standard.
7. Finally, EFC baldly asserts that it seeks
attorney’s fees if it prevails in this appeal. EFC-Br.57. This one-liner does
not properly raise the issue, nor would fees be appropriate. See EEOC
v. Bruno’s Rest., 13 F.3d 285, 291 (9th Cir. 1993).
CONCLUSION
For the reasons stated in this brief and
EEOC’s opening brief, the judgment below should be reversed and the case
remanded for trial in conjunction with the pending claims.
Respectfully
submitted,
P.
DAVID LOPEZ
General
Counsel
CAROLYN
L. WHEELER
Acting
Associate General Counsel
JENNIFER
S. GOLDSTEIN
Acting
Assistant General Counsel
s/
Barbara L. Sloan
BARBARA
L. SLOAN
Attorney
EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION
131
M Street, N.E., 5th Floor
Washington,
DC 20507
Phone:
202-663-4721
FAX:
202-663-7090
Dated: 14
October, 2014 barbara.sloan@eeoc.gov
CERTIFICATE OF COMPLIANCE
This brief contains 6887 words, excluding
the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief’s type face and type size comply
with Fed. R. App. P. 32(a)(5)-(6).
/s/Barbara
L. Sloan
BARBARA
L. SLOAN
Dated:
14 October, 2014
