Table of Contents

Table of Authorities.......................................................................................... ii

Statement of Interest......................................................................................... 1

Statement of the Issues..................................................................................... 1

Statement of the Case....................................................................................... 2

A. Statement of Facts............................................................................. 2

B. District Court’s Opinion.................................................................. 11

Summary of Argument................................................................................... 13

Argument........................................................................................................ 15

A. A reasonable jury could find that Guessous’s allegations of a hostile work environment under Title VII are timely........................................... 15

B. A reasonable jury could find a severe or pervasive hostile work environment. 16

C. A reasonable jury could reject FPI’s explanation for terminating Guessous and could find, instead, that FPI fired her because of

illegal discrimination and/or retaliation............................................ 20

Conclusion...................................................................................................... 22

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995).......... 19

Boyer-Liberto v. Fontainebleau Corp., ___ F.3d ___, 2015 WL 2116849

(4th Cir. May 7, 2015) (en banc)..................................................................... 19

Burrage v. United States, 134 S. Ct. 881 (2014).............................................. 22

Conner v. Schrader-Bridgeport Int’l, Inc.,

227 F.3d 179 (4th Cir. 2000).......................................................................... 17

Consolidation Coal Co. v. Ga. Power Co.,

781 F.3d 129 (4th Cir. 2015).......................................................................... 22

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)................... 17, 19

Gilliam v. S.C. Dep’t of Juvenile Justice,

474 F.3d 134 (4th Cir. 2007)..................................................................... 15-16

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)............................................... 16

Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir. 2011)............................... 20

King v. Rumsfeld, 328 F.3d 145 (4th Cir. 2003).............................................. 22

Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497 (6th Cir. 2014)........ 22

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).......................... 15

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)...................... 17

Paluck v. Gooding Rubber Co., 221 F.3d 1003 (7th Cir. 2000)...................... 20

Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202 (4th Cir. 2014)................. 16

Statute

Title VII of the Civil Rights Act of 1964,

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

§ 2000e-2.............................................................................................. 16

Rule

Fed. R. App. P. 29(a)........................................................................................ 1

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal addresses the timeliness of a hostile work environment claim under Title VII, the standard for establishing “severe or pervasive” harassment, and the degree of evidence required to raise a genuine issue of material fact as to whether an employer’s explanation for a termination is a pretext for discrimination and/or retaliation. Because the EEOC has a strong interest in seeing that courts do not erroneously dismiss hostile environment claims as time-barred, that courts not impose too stringent a standard on “severe or pervasive” harassment, and that courts allow legitimate questions of pretext to reach a jury, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues

1. Did Guessous state a timely hostile work environment claim where her supervisor hovered over her desk in an intimidating manner both before and after the start of the statutory limitations period?

2. Could a reasonable jury find that Guessous endured a hostile work environment because of her race, religion, and national origin where her supervisor repeatedly and explicitly communicated his hostile attitude towards Arabs, Muslims, and Middle Easterners?

3. Could a reasonable jury find that Fairview Property Investments (“FPI”) terminated Guessous because of illegal discrimination and/or retaliation where her harasser was the one to fire her and where he decided to do so shortly after she complained about his harassing conduct?

Statement of the Case

This is an appeal from an award of summary judgment in favor of FPI.

A. Statement of Facts

Monica Guessous, an Arab Muslim woman from Morocco, was an assistant property manager and bookkeeper for FPI from 2007-2013. (JA 199, 213, DE 31-1 at 10, 97; JA 100, DE 34-2 ¶ 1) In 2008, Greg Washenko (a white Christian American) became FPI’s new Chief Financial Officer. (JA 258-59, DE 31-1 at 280-81; JA 333, DE 34-5 at Response 3) Guessous reported directly to Washenko from 2008-2013. (JA 101, DE 34-2 ¶ 8)

From Washenko’s first days on the job, he made clear to Guessous that he held a low opinion of Arabs, Muslims, and Middle Easterners. During their initial “meet and greet” session, he asked Guessous where she was from. When she told him that she was from the Middle East, he replied that he had previously worked with “a bunch of Middle Easterners and they are a bunch of crooks, will stop at nothing to screw you.” He added that the people he had shipped computers to in Iraq had never paid for them. (JA 207-08, 211, DE 31-1 at 80-81, 84, 89)

Within a week of this conversation, Washenko began to check constantly on whether Guessous was actually working. Guessous testified that Washenko would check in on her every five minutes, standing over her desk in an imposing stance while asking her what she was working on and whether she was still working on the same thing. He even followed her to the copy machine to ask her what she was doing. Washenko told Guessous, “I’m watching you.” (JA 201, 213-15, 219, DE 31-1 at 53-54, 99-102, 104-05, 108, 121) When he was not in the office, he called to check up on her; he did this so frequently that one of Guessous’s coworkers began to joke with her about it. (JA 219, DE 31-1 at 121-22) Washenko’s behavior – which he did not exhibit with any other employee – continued until Guessous’s return from maternity leave in October 2012. (JA 220, DE 31-1 at 127; JA 103-04, DE 34-2 ¶ 19)

During one of the many occasions when Washenko was checking up on Guessous, he asked her five minutes after she had begun an assignment whether she had completed it yet. When she said no, he snapped his fingers and told her, “This is not Moroccan time.” (JA 238, DE 31-1 at 194-95)

Washenko appeared to fixate on Guessous’s Moroccan background. For several months, he insisted on calling Guessous by her Moroccan name (Mounia) rather than her Americanized name (Monica), even though Guessous repeatedly asked him not to. (JA 103, DE 34-2 ¶ 16) Likewise, when Guessous was confused about her job title, Washenko told her that he could understand her confusion because “it must be a cultural thing.” (JA 236, DE 31-1 at 185-86) In late 2010, Washenko asked Guessous about her immigration status and, upon learning that she had a green card, asked her how she came to the United States. (JA 241, DE 31-1 at 205) The following year, he told her apropos of nothing, “In America we call people by their last name.” Guessous said that this is true everywhere when one wants to be formal, and Washenko told her, “No, you would not know that because you are not from here.” (JA 243-44, DE 31-1 at 220-21)

Washenko turned to Guessous with all of his questions about Islam, terrorists, and the Middle East. He walked out of his office one day and asked her, “So, why do Muslims hate America?” When Guessous responded that Muslims do not hate America, he said, “Let me rephrase, why do Muslim terrorists hate America?” Guessous said that she did not know and that Muslims are not terrorists. Washenko replied, “Yeah, sure. Like my buddy says, not all Muslims are terrorists, but most are.” (JA 216, DE 31-1 at 111-12)

Another day, Washenko came out of his office and told Guessous, “I need your [input] on this. I could never understand this whole suicide bomber thing. These poor Israelis are being bombed every day by Muslim Palestinian terrorists.” Guessous told him that Islam does not allow bombing and that suicide is prohibited in the Koran. Washenko looked at her as if she did not know what she was talking about. (JA 217-18, DE 31-1 at 115-17)

Washenko also asked Guessous, “What’s up with Egypt and why are the Muslims killing people?” Guessous told him that she is not Egyptian, and Washenko said, “Well, you’re from the same culture.” (JA 239, DE 31-1 at 199) Another time, he asked her, “What’s up with Libya? Since you happen to be from North Africa, perhaps you should know.” (JA 245, DE 31-1 at 224)

Once, Washenko initiated a conversation on Islam and Christianity. He told Guessous that “we clearly don’t believe in the same God.” Guessous explained to him that there is only one God, and Washenko told her, “We don’t believe in the same God. You think we do, but we don’t. We’re not the same.” (JA 225-26, DE 31-1 at 141-43, 145)

On September 11, 2010, Guessous wished Washenko a happy birthday. He told her, “Thanks, every year I am reminded of the terrorist attacks by the Muslims.” (JA 235, DE 31-1 at 182-83)

In the spring of 2011, Guessous observed while doing bookkeeping tasks for one of FPI’s tenants that revenues were down. Guessous suggested to Washenko that the pizzeria might consider adding more dishes to its menu because everything on the menu contained pork and some people, including Muslims like her, do not eat pork. Washenko told her, “We’re not interested in that kind of clientele at the moment.” (JA 242, DE 31-1 at 211)

In the fall of 2011, Washenko mentioned that he was planning to buy a car for his son. Guessous suggested that he get a Volkswagon, mentioning that her mother had one and it was reliable. Washenko said, “Yeah, that car must have taken a lot of beating from a Moroccan driver.” (JA 246, DE 31-1 at 226-27) Also in the fall of 2011, Washenko asked Guessous to translate Farsi for someone in a client’s restaurant. When Guessous told him that she does not speak Farsi, Washenko asked, “Shouldn’t there be some sort of secret language you all understand?” (JA 246, DE 31-1 at 227-28)

In an effort to show Washenko the Middle East in a good light, Guessous mentioned to Washenko that she has a friend in Dubai who describes the city as modern and clean. Washenko responded that he had a friend who lived in Dubai for a year. Washenko said, “Despite all the buildings and modern [sic], they are just a bunch of camel people. And my friend will never go back. He hated it so much. He was so glad to come back to the United States.” (JA 247, DE 31-1 at 230-31)

One day Washenko did not bring lunch to work. Guessous offered to share her tacos. The following day, Washenko accused Guessous of having tried to poison him. He said that he had gone to the hospital the previous evening and falsely added that his doctor asked him who had given him the bad food. “I told him a Muslim employee of mine,” he said. Washenko told Guessous that the doctor told him, “Well, it’s clear that she’s trying to kill you.” Washenko repeated this story to other employees for the next two weeks. (JA 248-49, DE 31-1 at 236-37, 240; JA 290, DE 34-4 at 210; JA 108-09, DE 34-2 ¶ 40)

In late 2011, Washenko called Guessous into his office to tell her that Rashid Lucron, an employee of one of FPI’s tenants, had been fired. Guessous asked Washenko why he was telling her this since she did not even know Lucron, other than to say hello in the elevator. Washenko said, “I thought you should know since you are both Moroccan. He’s a very bad guy.” (JA 250-51, DE 31-1 at 244, 247)

Guessous testified that Washenko’s behavior upset her and made her feel that she did not belong. “He made me feel like an outsider,” she testified. “He put this disease in me, where I was more aware that I was a foreigner, that I was different.” (JA 231, DE 31-1 at 166) When Washenko asked her about Muslims, she said, she would get “that sinking feeling in my heart” because she was “tired of being the 4-1-1 on all Muslim-related issues.” (JA 216, 246, DE 31-1 at 111, 226) Guessous testified, “I know Muslims are hated. I know the terrorists use Islam to justify that. I knew that and it bothered me because I was comfortable in my job at the beginning and here I am now and I felt like I’m supposed to defend it.” (JA 217, DE 31-1 at 114)

Guessous frequently left the office to cry in her car or the restroom. (JA 109-10, DE 34-2 ¶ 42) She testified that the harassment affected her concentration and her ability to do her job. She never knew when Washenko might make another offensive comment. (Id.) “I try to go back to my work and I can’t focus,” she said. “I have to step out. What am I going to do, mess up my work so he has an excuse that I don’t do a good job? I took pride in my work. I did it well. But he affected me so much. I stepped out so many times. I ruined my makeup so many times from crying. I have never cried so much in my life at a job.” (JA 233, DE 34-3 at 174) She added that the harassment left her “feeling angry, humiliated, hating the color of my skin, uncomfortable and insecure as the only Arab, Moroccan, Middle Easterner, and Muslim woman in the workplace.” (JA 109-10, DE 34-2 ¶ 42)

In 2011, Guessous became pregnant. She avoided Washenko as much as possible in order to reduce her stress. (JA 221, 251, 258, DE 31-1 at 131, 248, 277) Washenko did not make any comments about Muslims that year but he continued to step out of his office frequently to observe Guessous as she worked. (JA 258, DE 31-1 at 277; JA 103-04, DE 34-2 ¶ 19)

When Guessous asked Washenko for three months of maternity leave, he expressed frustration and asked why she needed so much time when a previous employee of his had been satisfied with just one week. Guessous said that she was legally entitled to the time. (JA 111, DE 34-2 ¶ 47) She went on leave from August 2012 through October 2012. (Id. ¶ 48)

When Guessous returned to work, Washenko was cold and detached. (JA 112, DE 34-2 ¶ 49) He did not restore the vast majority of job duties that he had redistributed to her non-Arab, non-Muslim, non-Moroccan, non-pregnant colleagues during her maternity leave. (Id. ¶¶ 50, 51; JA 265, DE 31-1 at 378) Guessous repeatedly asked for her work back or to be trained to perform new functions. (JA 234, DE 34-3 at 179-80; JA 112-13, DE 34-2 ¶¶ 53, 55; DE 34-7 at 109) As the bookkeeper, she knew that FPI had acquired additional tenants, meaning there should have been more work available. She also knew that FPI was on track to make another year of record profits. (JA 265, DE 31-1 at 378; JA 113, DE 34-2 ¶ 57) She told Washenko that she had been correcting her coworkers’ mistakes on work that had originally been hers. Nevertheless, Washenko refused to restore her duties. (JA 234, DE 34-3 at 180)

On December 6, 2012, Guessous confronted Washenko about the lack of work and about his previous treatment of her. She told him that she felt targeted by him because she was an Arab Muslim woman from Morocco. She said, “I’m a new mom. I can’t do this. My work environment needs to be healthy. It has not been healthy. Please let’s put this behind us.” She asked that he treat her as an equal and not based on the fact that he hates Muslims. (JA 233, DE 34-3 at 176; JA 101, DE 34-2 ¶ 5) A coworker saw Guessous crying during this conversation and told FPI President Mary Alexander that Washenko was making Guessous cry. Alexander replied, “I’m sure he’s just doing his job.” (JA 234, DE 34-3 at 179)

Washenko decided to fire Guessous around the time of this conversation. (JA 339, DE 34-5 at Response 12) Although Washenko and Alexander had begun talking in 2010 about whether there was enough work to justify Guessous’s position, those conversations had continued for two years without FPI’s taking any action. (JA 336-40, DE 34-5 at Responses 10, 12, 14) Seventy-five minutes after Guessous confronted Washenko, however, Alexander asked an outside associate whether he might have a position for Guessous, calling her “a wonderful girl . . . that we simply don’t have enough work for right now.” (JA 291, DE 34-4 at 244; JA 302, DE 34-7 at 115-16; DE 34-7 at 111-12) Washenko told Guessous in March that she was being fired for lack of work. (JA 113, DE 34-2 ¶ 56) FPI did not hire a replacement. (JA 343, DE 34-5 at Response 18)

B. District Court’s Opinion

The district court held that Guessous’s Title VII hostile environment claim was time-barred. (JA 137, DE 45 at 3) Because Guessous filed her EEOC charge on March 5, 2013, her claim would be timely only if she alleged that some act of harassment had occurred on or after May 8, 2012. The court said, however, that the last instance of harassing conduct occurred in the winter of 2011. (JA 164-65, DE 45 at 30-31) The court refused to consider the removal of Guessous’s work assignments as part of a single hostile work environment, viewing it instead as a discrete act. (JA 165, DE 45 at 31)

Because Guessous asserted a hostile work environment under 42 U.S.C.

§ 1981 as well as Title VII, the district court considered the existence of a hostile work environment on the merits. (JA 155-58, DE 45 at 21-24) The court granted summary judgment on this claim because “only one of Washenko’s statements can be construed as a racially derogatory comment [and] Plaintiff cannot establish that the one derogatory comment created an environment sufficiently severe or pervasive to alter the conditions of her employment.” (JA 155, DE 45 at 21) The court explained:

[M]ost of Washenko’s statements towards her, while distasteful, were references to and questions about Islam and Moroccan culture. One statement Defendant concedes could be construed as a negative race-based statement is Washenko’s reference to people from Dubai as “camel people.” To constitute a severe or pervasive hostile work environment, however, the remarks must be more than stray isolated comments. Here, none of Washenko’s statements to Plaintiff rise to a level sufficiently severe or pervasive to alter “the conditions of [her] employment and create an abusive working environment.”

(JA 157-58, DE 45 at 23-24 (citations omitted))

The district court granted summary judgment on all claims stemming from Guessous’s termination on the ground that no reasonable jury could find that FPI’s stated reason for the termination, lack of work, was a pretext for illegal discrimination and/or retaliation. (JA 154-55, DE 45 at 20-21) The court’s reasoning, in its entirety, was:

Plaintiff makes three arguments in support for her claim that Defendant’s reason for her termination was pretext: (1) the decision to terminate her was finalized 75 minutes after she engaged in protected activity, (2) no one else was terminated for the reasons provided by Defendant, and (3) she was terminated by her aggressor. None of these assertions, however, could lead a reasonable jury to conclude by a preponderance of the evidence that the legitimate reason offered by Defendant for terminating Plaintiff’s employment – the elimination of Plaintiff’s position due to lack of work – was not its true reason, but rather a pretext for [discrimination or retaliation]. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); see also King v. Rumsfeld, 328 F.3d 145 (4th Cir. 2003) (affirming summary judgment because none of plaintiff’s allegations contradicted employer’s proffered discharge motive). Plaintiff has not produced any evidence that her former position was reinstated after her termination.

(Id.; see also JA 161, 162, 164, 168, 169-70, DE 45 at 27 (“Plaintiff does not offer any evidence that Defendant advertised, recruited, or hired anyone to fill her former position which may show that the reason for her termination was a pretext.”), 28, 30, 34, 35-36)

Summary of Argument

The district court erred in three ways: (1) by holding that Guessous’s Title VII claim was time-barred, (2) by holding that she could not establish a hostile work environment on the merits, and (3) by holding that no reasonable jury could find that FPI’s stated reason for termination, lack of work, was a pretext for illegal discrimination and/or retaliation. All of the court’s holdings rest on its failure to consider the totality of the circumstances as required by binding precedent.

With respect to the timeliness of the Title VII claim, the district court failed to consider Guessous’s testimony that, within a week of telling her that Middle Easterners could not be trusted, Washenko began frequently hovering over Guessous in an intimidating manner and bombarding her with phone calls to make sure that she was working. A reasonable jury could find that his conduct was part of a broader hostile work environment. Because Washenko singled Guessous out for special scrutiny and intimidation within the statutory time period, a reasonable jury could find that Guessous’s Title VII allegation was timely.

Likewise, a reasonable jury could find that Guessous endured a hostile work environment. Contrary to the district court’s conclusion that most of Washenko’s comments were merely “references to and questions about Islam and Moroccan culture,” a jury could find that the comments communicated Washenko’s hostility to Guessous’s race, religion, and national origin. His repeated references to terrorism, in particular, would not have to be dismissed by a jury as mere inquiries.

Finally, a reasonable jury could find that FPI’s stated reason for termination, lack of work, was a pretext for discrimination and/or retaliation. FPI spent two years discussing whether there was enough work to keep Guessous employed, but it fired her only after she complained about Washenko’s discriminatory treatment. Even if FPI might have fired Guessous eventually, a jury could find that discrimination and/or retaliation pushed it to fire her when it did.

Argument

A. A reasonable jury could find that Guessous’s allegations of a hostile work environment under Title VII are timely.

A hostile work environment under Title VII must be assessed in light of the entire pattern of behavior. Behavior occurring outside the statutory time period may be considered as part of the claim “so long as an act contributing to that hostile environment takes place within the statutory time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). The timely act need not be an egregious instance of harassment; all that is required is for the act to have “contributed to the hostile work environment.” Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 141 (4th Cir. 2007).

Washenko’s practice of constantly checking to make sure that Guessous was actually working began within a week of his telling her that Middle Easterners “are a bunch of crooks, will stop at nothing to screw you.” (JA 201, 207-08, 213-14, DE 31-1 at 53-54, 80-81, 84, 99-102) He hovered around Guessous’s desk in an intimidating manner and called her when he was out of the office, both before and after the start of the limitations period. (JA 213-14, DE 31-1 at 99-102; JA 103-04, DE 34-2 ¶ 19) His singular focus on whether Guessous was working must therefore “be deemed to have been a continuing part of the discrimination [Washenko] allegedly carried out against [Guessous].” Gilliam, 474 F.3d at 141. Because the entire scope of Washenko’s behavior must be considered in order to determine the existence of an actionable hostile work environment and part of his harassing conduct occurred within the limitations period, a reasonable jury could find Guessous’s hostile environment claims timely under Title VII.

B. A reasonable jury could find a severe or pervasive hostile work environment.

Title VII prohibits employers from discriminating against individuals because of their race, religion, or nationality. 42 U.S.C. § 2000e-2. An employee’s work environment is a term or condition of employment; an employer therefore violates Title VII by creating a hostile work environment because of one of these protected characteristics. Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 207 (4th Cir. 2014). A hostile work environment is one “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Whether harassment is sufficiently “severe or pervasive” to constitute a hostile work environment “is quintessentially a question of fact.” Walker, 775 F.3d at 208.

The district court held that Guessous could not establish a hostile working environment because Washenko’s reference to “camel people” was a “stray isolated comment” and his other remarks were merely “references to and questions about Islam and Moroccan culture.” (JA 157-58, DE 45 at 23-24) This holding failed to consider the “totality of the circumstances.” See Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 193 (4th Cir. 2000) (citing Harris, 510 U.S. at 23).

The hostility of Guessous’s working environment must be viewed “from the perspective of a reasonable person in her position.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). As this Court has observed, “[F]ollowing September 11th, religious tensions ran higher in much of the country, and Muslims were sometimes viewed through the prism of 9/11, rather than as the individuals they were. . . . [W]e cannot regard as ‘merely offensive,’ and thus ‘beyond Title VII’s purview,’ constant and repetitive abuse founded upon misperceptions that all Muslims possess hostile designs against the United States, that all Muslims support jihad, that all Muslims were sympathetic to the 9/11 attack, and that all Muslims are proponents of radical Islam.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) (citation omitted).

Washenko’s comments conveyed precisely this hostile attitude towards Arabs, Muslims, and Middle Easterners. When he first met Guessous, he told her that Middle Easterners “are a bunch of crooks, will stop at nothing to screw you.” (JA 207-08, 211, DE 31-1at 80-81, 84, 89) Over the course of Guessous’s employment, he repeatedly plied her with questions about Muslim terrorists and told her, “Like my buddy says, not all Muslims are terrorists, but most are.” (JA 216, DE 31-1 at 111-12) When Guessous wished him a happy birthday on September 11th, he took the occasion to tell her, “Thanks, every year I am reminded of the terrorist attacks by the Muslims.” (JA 235, DE 31-1 at 182-83)

Washenko also repeatedly expressed his disdain for Middle Easterners, telling Guessous that “We don’t believe in the same God. You think we do, but we don’t. We’re not the same.” (JA 225-26, DE 31-1 at 141-43, 145) When Guessous suggested that a client restaurant should broaden its menu because it served so much pork and some people, including Muslims like her, do not eat pork, Washenko told her, “We’re not interested in that kind of clientele at the moment.” (JA 242, DE 31-1 at 211) Most offensively, as the district court recognized (JA 157-58, DE 45 at 23-24), Washenko told Guessous about Dubai, “Despite all the buildings and modern [sic], they are just a bunch of camel people.” (JA 247, DE 31-1 at 230-31)

Washenko’s hostility made Guessous painfully aware that her supervisor carried biased stereotypes about her because of her status as an Arab, Middle Easterner, and Muslim. She testified, “I know Muslims are hated. I know the terrorists use Islam to justify that. I knew it and it bothered me because I was comfortable in my job at the beginning and here I am now and I felt like I’m supposed to defend it.” (JA 217, DE 31-1 at 114) Guessous, “the lone Muslim employee, was left to bear the verbal brunt of anti-Islamic sentiment.” Sunbelt Rentals, 521 F.3d at 316. The fact that it was her supervisor making the hostile comments amplified their effect. See Boyer-Liberto v. Fontainebleau Corp., ___ F.3d ___, 2015 WL 2116849, at *12 (4th Cir. May 7, 2015) (en banc) (harassment perpetuated by a supervisor against a subordinate has a “‘particularly threatening character’”) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998)).

Although Washenko’s comments were less frequent than those found to constitute a hostile work environment in some other cases, see, e.g., Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995), each comment carried a lasting impact. Guessous felt profoundly demeaned, and Washenko reinforced this feeling by obsessively checking up on her (and no one else) to make sure that she was working. (JA 220, DE 31-1 at 127) She testified that she never knew when Washenko would make another offensive comment and that the stress affected her concentration and her ability to do her job. (JA 217, DE 31-1 at 114; JA 109-10, DE 34-2 ¶ 42)

This Court has emphasized that the fact patterns of other cases do not establish a baseline for an actionable hostile work environment. Hoyle v. Freightliner, LLC, 650 F.3d 321, 334 (4th Cir. 2011). “[W]e have never held that a weak case is necessarily one that should be disposed of on summary judgment,” the Court said. “The question at the summary judgment stage is not whether a jury is sure to find a verdict for the plaintiff; the question is whether a reasonable jury could rationally so find.” Id. (emphasis in original). Looking at all of the facts in the light most favorable to Guessous, a jury could find that she endured a hostile work environment. The district court was wrong to hold otherwise.

C. A reasonable jury could reject FPI’s explanation for terminating Guessous and could find, instead, that FPI fired her because of illegal discrimination and/or retaliation.

The district court wrongly held that because FPI did not hire a replacement after firing Guessous, Guessous could not show that the stated reason for her termination – lack of work – was a pretext for discrimination and/or retaliation. (JA 155, DE 45 at 21) The Seventh Circuit has rejected this reasoning. In Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1012 (7th Cir. 2000), the Seventh Circuit held that a plaintiff who was not replaced, whose duties were dispersed among other employees after her termination, could show pretext with evidence that her protected characteristics “tipped the balance in favor of her discharge.” This Court should hold the same.

FPI says that it spent two years discussing whether there was enough work to justify Guessous’s position. (JA 336-40, DE 34-5 at Responses 10, 12, 14) Despite its concerns, it kept Guessous employed throughout this time. It was not until late November or early December – precisely when Guessous protested Washenko’s treatment of her – that Washenko made the decision to fire her. (JA 339, DE 34-5 at Response 12) Only seventy-five minutes after Guessous protested Washenko’s treatment of her, Alexander began making inquiries about finding her a job elsewhere. (JA 291, DE 34-4 at 244; JA 302, DE 34-7 at 115-16; DE 34-7 at 111-12)

Title VII does not require Guessous to demonstrate that FPI would never have fired her in the absence of discrimination and/or retaliation. She must prove only that FPI would not have fired her at the time it did if it had not relied on illegal motives. As the Supreme Court has explained:

[W]here A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died. The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.

Burrage v. United States, 134 S. Ct. 881, 888 (2014) (internal quotation marks and citation omitted); see also Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th Cir. 2014) (“[I]n retaliation cases, courts must determine ‘what made [the employer] fire [the employee] when it did.’” (quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir. 2009) (emphasis in original)).

Importantly, FPI’s asserted concern about lack of work did not affect Guessous’s job until she finally challenged Washenko. A reasonable jury could conclude from this that FPI’s reliance on lack of work was a pretext for discrimination and/or retaliation. See King v. Rumsfeld, 328 F.3d 145, 151-52 (4th Cir. 2003) (plaintiff may show pretext by contradicting employer’s proffered discharge motive).

Conclusion

The district court failed to consider all of the evidence. Nor did it view the facts in the light most favorable to Guessous, as required at summary judgment. Consolidation Coal Co. v. Ga. Power Co., 781 F.3d 129, 147 (4th Cir. 2015). For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ /s/ Gail S. Coleman

General Counsel Attorney

U.S. EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

LORRAINE C. DAVIS Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov