UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________ No. 05-2513 _______________________ LINDA GREEN, Plaintiff-Appellant, v. FRANKLIN NATIONAL BANK OF MINNEAPOLIS, doing business as Franklin Bank, Defendant-Appellee. _______________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA Civil Action No. 03-6188 (DSD/SRN) The Hon. David S. Doty, U.S.D.J., Presiding _______________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT LINDA GREEN IN SUPPORT OF REVERSAL _______________________________________________ ERIC S. DREIBAND SUSAN R. OXFORD General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 CAROLYN L. WHEELER Tel. (202) 663-4791 Assistant General Counsel Fax (202) 663-7090 TABLE OF CONTENTS page TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 A. Proceedings Below. . . . . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . .3 C. District Court Decision. . . . . . . . . . . . . . . .5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 I. GREEN ALLEGED RACIAL HARASSMENT SUFFICIENTLY SEVERE OR PERVASIVE TO WITHSTAND SUMMARY JUDGMENT WHERE HER CO-WORKER CALLED HER, AMONG OTHER THINGS, "MONKEY," "BLACK MONKEY" AND "CHIMPANZEE." . . . . . . . . . . . . . . . . . . . . .7 II. GREEN HAS ESTABLISHED A PRIMA FACIE CASE OF RETALIATORY DISCHARGE.. . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31 ATTACHMENTS CERTIFICATE OF SERVICE TABLE OF AUTHORITIES page Federal Cases Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030 (8th Cir. 2005) . . . . . . . . . . . . . . 10 Bailey v. Binyon, 583 F. Supp. 923 (N.D. Ill. 1984) . . . . . . . . . . . . 12 Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878 (8th Cir. 2002). . . . . . . . . . . . 2, 9, 16 Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858 (5th Cir. 1993). . . . . . . . . . . . . . . 12 Canady v. John Morrell & Co., 247 F. Supp. 2d 1107 (N.D. Iowa 2003) . . . . . . . . . . 13 Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999). . . . . . . . . . . .8, 16, 17 Cheshewalla v. Rand & Son Constr. Co., – F.3d – , 2005 WL 1668341 (8th Cir. July 19, 2005) . . . 28 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) . . . . . . . . . . . . . . . . . . . 16 Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906 (7th Cir. 1991). . . . . . . . . . . . . . . 13 Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir.1991). . . . . . . . . . . . . . . 17 Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349 (8th Cir. 1997). . . . . . . . . . . . . .8, 22 Federal Cases (cont'd) page EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. 2003). . . . . . . . . . . . . . . 27 Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645 (8th Cir. 2003). . . . . . . . . . . . . .5, 10 Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071 (8th Cir. 2005) . . . . . . . . . . . . . . 20 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . 24 Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) . . . . . . . . . . . . . . . 19 Foster v. Time Warner Entm't Co., 250 F.3d 1189 (8th Cir. 2001) . . . . . . . . . . . . . . 20 Haas v. Kelly Servs., Inc., 409 F.3d 1030 (8th Cir. 2005), pet. for reh'g pending . . 28 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . 8, 9 Hicks v. St. Mary's Honor Ctr., 90 F.3d 285 (8th Cir. 1996) . . . . . . . . . . . . . . . 22 Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791 (8th Cir.), modified on reh'g, 382 F.3d 869 (8th Cir. 2004). . . . . . . 2, 6, 7, 8, passim Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) . . . . . . . . . . . . . . 16 Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir. 1995) . . . . . . . . . . . . . . . 13 Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981) . . . . . . . . . . . . . . .8 Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999) (en banc) . . . . . . . . . 26 Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607 (1st Cir. 2000). . . . . . . . . . . . . . . 17 Logan v. Liberty Healthcare Corp., – F.3d – , 2005 WL 1719851 (8th Cir. July 26, 2005) . 25, 28 Lumhoo v. Home Depot USA, Inc., 229 F. Supp. 2d 121 (E.D.N.Y. 2002) . . . . . . . . . . . 10 Madison v. IBP, Inc., 149 F. Supp. 2d 730 (S.D. Iowa 1999), aff'd in relevant part & vacated on other grounds, 257 F.3d 780 (8th Cir. 2001). . . . . . . . . . . . . . . 18 Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976). . . . . . . . . . . . . . . 12 Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir. 1997) . . . . . . . . . . . . . . 13 O'Bryan v. KTIV Television, 64 F.3d 1188 (8th Cir. 1995). . . . . . . . . . . . . . . 25 Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005). . . . . . . . . .2, 23, 25, 29 Pope v. ESA Servs., Inc., 406 F.3d 1001 (8th Cir. 2005) . . . . . . .6, 20, 21, 23, 29 Powell v. Mo. State Highway and Transp. Dep't, 822 F.2d 798 (8th Cir. 1987). . . . . . . . . . . . . . . .8 Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003). . . . . . . . . 10, 11, 12, 23 Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426 (2d Cir. 1999) . . . . . . . . . . . . . . . 13 Rocha Vigil v. City of Las Cruses, 119 F.3d 871 (10th Cir. 1997) (denial of reh'g en banc) . . . . . . . . . . . . . . . . .9 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) . . . . . . . . . . . . . . . 11 Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir. 2002). . . . . . . . . . . . . .2, 29 Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998). . . . . . . . . . . . . 25, 27 Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. 1997) . . . . . . . . . . . . 25, 28 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . . . . . . . . . . . . . . 13 Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000). . . . . . . . . . . . . . . 17 Wallace v. Sparks Health Sys., – F.3d – , 2005 WL 1679252 (8th Cir. July 20, 2005) . . . 29 Ways v. City of Lincoln, 871 F.2d 750 (8th Cir. 1989). . . . . . . . . . . . . . . .8 Webb v. Worldwide Flight Serv., Inc., 407 F.3d 1192 (11th Cir. 2005). . . . . . . . . . . . . . 13 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000). . . . . . . . . . . . . . . . 14 White v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004). . . . . .2, 11, 12, 13, passim Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999). . . . . . . . . . . . . . . 16 Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839 (8th Cir. 2002). . . . . . . . . . . . . 10, 24 State Cases Harris v. State, 46 So. 91 (Miss. 1950). . . . . . . . . . . . 13 Taylor v. Metzger, 706 A.2d 685 (N.J. 1998). . . . . . . . . . 14 Constitutional Provisions U.S. Const., Art. I § 2 cl.3 . . . . . . . . . . . . . . . . . 12 Statutes page 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . .3 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . 2, 3, 20, 24 Miscellaneous Herbert Alptheker, Vol. I A Documentary History of the Negro People in the United States (1951). . . . . . . . . . . . 12 Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996, at C1 . . . . . . . . . . . . . 14 Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993). . . . . . . . 14 Plot Summary for The Silence of the Lambs, at http://www.imdb.com/title/tt0102926/plotsummary (8/2/05)4 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal employment discrimination laws. Title VII has long been construed to prohibit harassment based on race. In addition, each of the laws enforced by the EEOC makes it unlawful for a covered employer to retaliate against persons for opposing conduct they reasonably believe violates these laws. Federal anti-discrimination laws rely heavily on victims of discrimination for their enforcement. Employees experiencing discrimination are expected to complain to management, file charges with the EEOC, and bring private lawsuits to enforce their rights. If employers were allowed to retaliate with impunity, employees would not expose and oppose unlawful discrimination and Title VII's purposes would go unfulfilled. The prohibitions against retaliation are, therefore, central to achieving the purposes of these laws. The district court's disposition in this case raises important questions regarding how racially derogatory and offensive slurs should be evaluated in the context of harassment and retaliation claims under Title VII. Because proper resolution of these claims is important to effective enforcement of this statute, the EEOC offers its views. STATEMENT OF THE ISSUES<1> 1. Whether Green alleged racial harassment sufficiently severe or pervasive to withstand summary judgment. Apposite cases: Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878 (8th Cir. 2002) Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004) White v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004) 2. Whether Green established a prima facie case of retaliation where she complained about her co-worker's comments and was discharged approximately three weeks after her last complaint. Apposite cases and statutory provision: Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005) Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir. 2002) 42 U.S.C. § 2000e-3(a) STATEMENT OF THE CASE A. Proceedings Below Plaintiff Linda Green filed this action against Defendant Franklin National Bank of Minneapolis alleging hostile work environment based on race, race discrimination, and retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and 2000e-3(a). On May 16, 2005, the district court granted Franklin Bank summary judgment on all three claims. Green now appeals the district court's decision. B. Statement of Facts Relevant to the EEOC's Arguments<2> Linda Green, an African American, began working as a teller at Franklin Bank in March 2002. Slip op. at 2. In May, Green began working with Jared Howard, a white male. Id. Howard and Green were the only tellers at the Washington Avenue branch. Green deposition ("dep.") at 29-30 (Appellant's Appendix ("Appx.") 8). On three consecutive days in mid-May, Howard called Green a "monkey." Slip op. at 2. Green understood the comment to be a racial insult and told Howard not to speak to her like that. Id. at 2-3. In her deposition, Green explained that she viewed Howard's comment to mean "nigger." Green dep. at 82-83 (Appx. 21) ("back in the day, they would always call people porch monkeys, and that meant a nigger."). Sometime in June, Howard told Green she should wear dreadlocks. Green found this comment racially offensive and complained to teller supervisor Kim Reep. Slip op. at 3. On July 10, Howard called Green a "black monkey." Green reported Howard's comment to Reep, who told her to speak to Senior Vice President and Cashier Wayne Erdman. Green then spoke to Erdman, although the parties dispute exactly what Green said to Erdman about the situation. See id. at 4 & n.6. On July 30, Howard told Green he wanted to eat her liver, and referenced the movie "The Silence of the Lambs."<3> Id. at 4; Green dep. at 58-60 (Appx. 15). Green found this comment intimidating, particularly because Howard had told her previously that he "gets even" with people. Slip op. at 4. Later on July 30, Howard sent Green an e-mail that said, "[j]ust wanted to let you know . . . you got a funny shaped head." Id. Green also understood this to be a racial insult. Green dep. at 183-84 (Appx. 46). On August 1, Reep spoke to Howard about calling Green a "monkey." Four days later, Howard called Green a "chimpanzee." Green complained to Bridges and Reep. Slip op. at 4-5. On August 6, Reep told Howard his comments were inappropriate and he would be discharged if they continued. The next day, Green forwarded Howard's July 30 e-mail to Reep. After Reep showed it to Markoe and Bridges, they terminated Howard's employment. Green did not experience any further workplace harassment. Id. at 5. Franklin Bank terminated Green's employment on August 26, allegedly because she refused to work on August 27 and 28, days for which she had previously been granted leave to attend a class. Id. at 6. C. District Court Decision The district court granted Franklin Bank's motion for summary judgment on all three of Green's Title VII claims. The district court rejected Green's harassment claim, in part because of its view that Green "failed to show that any alleged harassment, taken as a whole, is severe or pervasive enough to be actionable." The court reasoned that Howard's comments to Green were infrequent (approximately one to two times per month, according to the court), and that Green testified that her relationship with Howard "never deteriorated to the point that she was no longer speaking to him or wanted to stop being nice to him." Slip op. at 9. Conceding that the comments "black monkey" and "chimpanzee" "are properly considered offensive," the district court nevertheless concluded that "they were not severe enough to be actionable." Id. at 9-10 (citing Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003) (occasional "boy," "black boy" and other racial comments not sufficient); cf. Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 870 (8th Cir. 2004) (plaintiff's case was "on the cusp of submissibility" where harassment included extremely derogatory racial insults and threats)).<4> With respect to Green's retaliatory discharge claim, the district court found it undisputed that Green had suffered an adverse employment action, but concluded that she failed to satisfy the other two prongs of a retaliation claim – statutorily protected activity and causal connection. The district court stated that Green "failed to show that she engaged in statutorily protected activity" for two reasons. First, the court said that "although Green may have complained about the comments and behavior of Howard and others, the complaints are insufficient to show that she opposed an unlawful employment practice by Franklin Bank." Slip op. at 15 (citing Pope v. ESA Servs., Inc., 406 F.3d 1001, 1010 (8th Cir. 2005) (no protected activity because plaintiff did not explicitly oppose employer's practices based on racial discrimination)). Second, noting that "a hostile work environment violation requires a failure of the employer to respond," the district court concluded that "Green has provided no evidence that she opposed Franklin Bank's alleged failure to respond to her complaints." Slip op. at 15. The district court also determined that Green did not satisfy the third prong, the causal connection between her alleged protected behavior and her ultimate termination, because "[a]lmost three weeks lapsed between her last complaint and her termination" and "[s]uch a temporal connection is, without more, insufficient to establish an inference of causation." Id. at 15-16.<5> ARGUMENT I. GREEN ALLEGED RACIAL HARASSMENT SUFFICIENTLY SEVERE OR PERVASIVE TO WITHSTAND SUMMARY JUDGMENT WHERE HER CO-WORKER CALLED HER, AMONG OTHER THINGS, "MONKEY," "BLACK MONKEY" AND "CHIMPANZEE." A plaintiff establishes a Title VII claim of racial harassment in the workplace when hostile or offensive race-based conduct is severe or pervasive enough to affect a term or condition of the job. See Jackson v. Flint Ink N. Am. Corp., 370 F.3d 791, 794 (8th Cir.) ("Unquestionably, a working environment dominated by racial slurs constitutes a violation of Title VII.") (internal citation omitted), mod. on reh'g on other grounds, 382 F.3d 869 (8th Cir. 2004). Factors to be considered include not only the frequency and severity of the hostile acts and comments, but also whether they are "physically threatening or humiliating." See id. at 793 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)), mod. on reh'g on other grounds, 382 F.3d 869 (8th Cir. 2004). This Court has explained that "[s]poradic or casual comments are unlikely to support a hostile environment claim." Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999); see also Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981) (Title VII not violated where plaintiff alleged only "infrequent" use of racial terms "limited to casual conversation among employees" and generally not directed toward the plaintiff); Powell v. Mo. State Highway and Transp. Dep't, 822 F.2d 798, 801 (8th Cir. 1987) (no racially hostile work environment where plaintiff subjected to only "a few isolated racial slurs"). On the other hand, an unlawful hostile work environment clearly exists where a plaintiff has been subjected to "a steady barrage of racial name-calling." See, e.g., Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 352, 354 (8th Cir. 1997); see also Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir. 1989) (plaintiff identified about fifty examples of racial harassment). Situations as flagrant as those in Delph and Ways demonstrate how extreme racial harassment can become if an employer fails to take effective preventive and remedial steps. Such egregious examples of harassment do not, however, "mark the boundary of what is actionable" hostile work environment under Title VII. Harris v. Forklift Sys., 510 U.S. at 22. This Court has clearly stated that even conduct that is "not frequent" can be severe enough to be actionable under Title VII. See Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878, 884-85 (8th Cir. 2002); see also Rocha Vigil v. City of Las Cruses, 119 F.3d 871, 872-74 (10th Cir. 1997) (Lucero, J., dissenting from denial of reh'g en banc) (Supreme Court precedent does not require a "steady barrage" of racial slurs for harassment to be actionable under Title VII). Under Title VII's standards, Green's allegations establish an actionable claim of racial harassment. Howard's comments, uttered while he and Green were at the bank performing their jobs, were indisputably directed toward Green, not other persons. The explicitly racial references (repeatedly calling Green "monkey," "black monkey" and "chimpanzee," and Howard's statement that Green should wear "dreadlocks") were neither "accidental" nor "limited to casual conversation among employees," given that Green testified in her deposition she was not engaged in any conversation with Howard when he made these unsolicited and unprompted remarks to her. Green dep. at 56 (Howard said "you're a chimpanzee" out of the blue), 84 (Howard looked at Green and said the word monkey) (Appx. 14, 21). Furthermore, although not a "steady barrage," Howard's eight comments all occurred within a span of two-and-a-half months. Thus, when Howard's expressly racial comments are considered along with his statement that he wanted to eat Green's liver (referring to the movie "Silence of the Lambs") and his e-mail that Green had a funny-shaped head, his comments were more than "infrequent," "isolated" or "sporadic." See, e.g., Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003) (five incidents of racial harassment in seven months actionable under Title VII); Lumhoo v. Home Depot USA, Inc., 229 F. Supp. 2d 121 (E.D.N.Y. 2002) (seven racial epithets by managers in five months, including "porch monkey," "nigger" and "tar baby," sufficient to defeat summary judgment). Where this Court has found racial comments too sporadic or infrequent to support actionable harassment under Title VII, either the plaintiff alleged fewer incidents than admittedly occurred here, or a similar number of incidents occurred over the course of a much longer period of time. See, e.g., Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030 (8th Cir. 2005) (harassment not "severe or pervasive" where supervisor made only a few comments in ten months and comments had only a tenuous connection to any protected status); Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002) (five racial incidents in four or five years insufficient); cf. Elmahdi, 339 F.3d at 653 (being called "boy" and "black boy" a "few" times over a period of years by supervisor, who also once referred to Africans as having big penises, not sufficient to support a § 1981 hostile work claim).<6> Unlike these cases, Green's allegations of at least eight remarks made within a relatively short period of time (only two-and-a-half months) support a finding of race harassment sufficiently pervasive to withstand summary judgment. More importantly, the intensely derogatory nature of referring to African Americans as primates makes the derogatory comments in this case actionable racial harassment, even if eight incidents in two-and-a-half months might not otherwise be deemed sufficiently "pervasive." See Jackson v. Flint Ink N. Am. Corp., 370 F.3d at 794 ("high level of severity compensat[es] for a low level of pervasiveness and vice versa"), mod. on reh'g on other grounds, 382 F.3d 869 (8th Cir. 2004). Some racial slurs, like the term "nigger," are so offensive they support a racially hostile work environment even when uttered only a few times. As the Fourth Circuit recently observed, the word "nigger" is well-recognized as "[f]ar more than a ‘mere offensive utterance;'" indeed, it "is pure anathema to African Americans." White v. BFI Waste Servs., 375 F.3d 288, 298 (4th Cir. 2004) (citing Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674-75 (7th Cir. 1993) ("Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment,' . . . than the use of an unambiguously racial epithet such as ‘nigger' by a supervisor in the presence of his subordinates.")) (other citations omitted). See also Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 860 (5th Cir. 1993) ("the term ‘nigger' is a universally recognized opprobrium, stigmatizing African-Americans because of their race"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("[U]se of the word ‘nigger' automatically separates the person addressed from every non-black person; this is discrimination per se."). Comparing African Americans to primates is akin to calling African Americans "niggers" and is "similarly odious." White, 375 F.3d at 298. Indeed, Green interpreted Howard's "monkey" remarks as meaning "nigger," Appx. 21, and the two racial slurs are frequently paired. See, e.g., Reedy, 333 F.3d at 909 (picture of ape on bathroom wall accompanied by phrase "all niggers must die"); Morgan v. McDonough, 540 F.2d 527, 531 (1st Cir. 1976) (school-desegregation case where white students intimidated black students by, among other things, chanting, "2, 4, 6, 8[,] assassinate the nigger apes"). In our nation's past, African-Americans have been referred to as, and treated like, subhumans and regarded as intellectually and culturally inferior.<7> In perpetuation of this historic racial prejudice, African Americans have been, and sometimes still are, referred to as "beasts," "gorillas," "apes," or "monkeys." See, e.g., Webb v. Worldwide Flight Serv., Inc., 407 F.3d 1192, 1193 (11th Cir. 2005) (plaintiff called "nigger" and "monkey," among other things); White, 375 F.3d at 297-98 (plaintiff called, among other things, "nigger," "porch monkey," and "Mighty Joe Young"); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182-83 (4th Cir. 2001) (plaintiff called "monkey," "dumb monkey," and "nigger"); Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (African American employees called "apes" or "baboons"); Oates v. Discovery Zone, 116 F.3d 1161, 1175 (7th Cir. 1997) (Wood, J., concurring & dissenting in part) (picture of ape with plaintiff's name printed next to it posted for one week); Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 260 (8th Cir. 1995) (plaintiff called a "monkey"); Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 910 (7th Cir. 1991) (African American workers called "nigger," "porch monkeys," "baboons," and other epithets in Italian); Canady v. John Morrell & Co., 247 F. Supp. 2d 1107, 1110 (N.D. Iowa 2003) (plaintiff called "nigger" and "monkey," among other things); Harris v. State, 46 So. 91, 93 (Miss. 1950) (describing African American defendant as a "big, black gorilla"); cf. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 67 (2d Cir. 2000) (plaintiff called "black sheep," among other things); Taylor v. Metzger, 706 A.2d 685 (N.J. 1998) (plaintiff called "jungle bunny"). Given that primate-based slurs are overwhelmingly directed toward African Americans as opposed to any other group, they are unambiguously racial in intent. They are, moreover, without question demeaning and dehumanizing. See Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260 (1993) (black law professor who found a picture of a gorilla placed in her school mailbox "harbored no doubts about the loud, unambiguous message conveyed: ‘Claim no membership to the human race. You are not even a sub-species. You are of a different species altogether. A brute. Animal, not human.' It was a time-worn message communicated to persons who are not white.") (Attachment 1); Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar. 6, 1996, at C1 (white sportscaster's reference to a black Georgetown basketball player as "a tough monkey" is "particularly egregious because of a centuries-old effort to dehumanize African Americans by linking them genetically with primates") (Attachment 2). As the Fourth Circuit recently explained in White, "To suggest that a human being's physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme." Id. Consequently, the presence of such comments in the workplace can create an unlawful hostile work environment, even where the harassment does not include any express physical threats. [T]he fact that [the plaintiff] was never physically threatened does not defeat his hostile work environment claim. As this court held in Spriggs, some words are so offensive that, when uttered repeatedly, they can foster "an abusive working environment" even if they are not accompanied by threat of physical injury. . . . The presence of race-based physical threats undeniably strengthens a hostile work environment claim. The absence of such, however, is in no way dispositive, when there is sufficient evidence from which a reasonable jury could conclude that allegedly harassing conduct was otherwise "humiliating." 375 F.3d at 298 n.6 (citations omitted) (emphasis in original). In this instance, Green explained that she was offended when Howard repeatedly called her "monkey," "black monkey," and "chimpanzee," understanding the terms to refer to "porch monkey," which she knew to mean "a nigger." Green dep. at 82-83 (Appx. 21). Green further explained that she felt threatened when Howard referred to the movie "Silence of the Lambs" in connection with stating that he wanted to eat her liver, particularly in light of his previous comments to her that he "gets even" with people. Slip op. at 4. Even without this disturbing "threat," however, the five incidents in two-and-a-half months where Howard dehumanized Green by calling her "monkey," "black monkey," and "chimpanzee" are sufficiently severe to create a hostile work environment under Title VII. Howard's other race-based and disparaging comments – telling Green she should wear dreadlocks and has a "funny shaped head" – further bolster the conclusion that Green has alleged actionable racial harassment here. As with any claim of harassment under Title VII, determining the existence of a racially hostile environment depends on consideration of all the attending circumstances. Bowen, 311 F.3d at 883 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)). Incidents are properly viewed not in isolation, but in light of their cumulative effect. Carter, 173 F.3d at 702 (harm generated by an abusive work environment "cannot be measured by carving it ‘into a series of discrete incidents'") (citation omitted); Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (considering offensive events in isolation defeats theory of "hostile environment"). Moreover, just as "the conduct underlying a sexual harassment claim need not be overtly sexual in nature," id. at 662 (citing Williams v. General Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999)), each of Howard's derogatory comments to Green did not need to have overtly racial overtones in order to contribute to a hostile work environment based on race. An action or comment not specifically racial in nature may contribute to the plaintiff's proof of a hostile work environment if it would not have occurred but for the fact that the plaintiff is African American. See Jackson, 191 F.3d at 662 (citing Daniels v. Essex Group, Inc., 937 F.2d 1264, 1273 (7th Cir.1991)). The presence of racial epithets, in particular, like the primate references here, "create[s] an inference that racial animus motivated other conduct as well." See Carter, 173 F.3d at 701 (where plaintiff complained about quality of a co-worker's work and other co-workers thereafter repeatedly referred to her as "black bitch," among other things, it was for factfinder to determine whether co-workers' hostile acts, such as sabotaging her work area, were motivated by racial or gender animus or only because she had "reported" another employee). In this instance, in addition to calling Green "monkey," "black monkey," and "chimpanzee," Howard also made the unsolicited statement that Green should "wear dreadlocks." Although a reference to "dreadlocks" is not an intrinsically derogatory comment, Howard's statement that Green should adopt such a hairstyle has clear overtones of racial stereotyping. In the context of Howard's racially-derogatory references to primates, his "dreadlocks" comment can be construed as intended to be, and was reasonably taken by Green as, racially-hostile. See Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 613-14 (1st Cir. 2000) (summary judgment denied where allegations of hostile environment based on race included reference to "kinky hair"); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (racial harassment included derisive remarks about the hair of African Americans, as well as comparisons of slaves to monkeys and the epithet "nigger"); Madison v. IBP, Inc., 149 F. Supp. 2d 730, 795 (S.D. Iowa 1999) (employee established claim of hostile environment based on race with evidence that supervisors and co-workers made offensive comments about race of plaintiff's husband and children, including referring to family members as "fucking niggers" and joking about the hair and lips of her children), aff'd in relevant part & vacated on other grounds, 257 F.3d 780 (8th Cir. 2001). Finally, during this time Howard told Green that he likes to "get even" with people and then later stated that he wanted to eat her liver, referencing the gruesome movie "Silence of the Lambs." The same day as the "Silence of the Lambs" comment, Howard e-mailed Green that she had a "funny shaped head." These additional harassing remarks – one threatening, the other clearly derogatory – when considered in the context of Howard's blatantly racial primate slurs and "dreadlocks" statement, further support the conclusion that Green has alleged an actionable hostile work environment based on race. The district court erred to the extent it reasoned that Green did not establish unlawful harassment because her relationship with Howard did not deteriorate to the point that she was no longer speaking to him or wanted to stop acting cordially toward him. Slip op. at 9. As the Second Circuit recently explained, the standard is not whether the harassment has made the environment "unendurable" or "intolerable," but whether "a reasonable employee would find the conditions of her employment altered for the worse." Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (citations omitted). Consequently, whether Green chose to continue to act cordially toward Howard cannot be the measure of whether Howard's actions crossed the line in terms of altering the workplace for the worse, particularly where it is undisputed that Green told Howard repeatedly that she objected to his comments and complained to her immediate supervisor and other bank officials. For all of these reasons, the "monkey," "black monkey" and "chimpanzee" comments – considered cumulatively and in context along with Howard's other racist and insulting comments (i.e., his "dreadlocks" statement and "funny shaped head" e-mail) and his implicit threat (i.e., his reference to the movie "Silence of the Lambs") – are severe enough to be actionable under Title VII. The district court erred in finding that these allegations, taken as a whole, failed to establish unlawful racial harassment in violation of Title VII. II. GREEN HAS ESTABLISHED A PRIMA FACIE CASE OF RETALIATORY DISCHARGE. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the act. 42 U.S.C. § 2000e-3(a). To make out a prima facie case of retaliation in violation of Title VII, a plaintiff must show: (1) she engaged in statutorily protected conduct such as "opposing an act of discrimination made unlawful by Title VII;" (2) the employer took adverse action against her; and (3) "the adverse action was causally linked to the protected conduct." Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071, 1078-79 (8th Cir. 2005); Pope v. ESA Servs., 406 F.3d at 1010. A plaintiff "need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying conduct violated the law." Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1195 (8th Cir. 2001) (citation omitted). The district court in this case erred in concluding that Green failed to establish a prima facie case of retaliation. It is not entirely clear what the district court meant when it stated, in rejecting the first element of Green's retaliation claim, that "although Green may have complained about the comments and behavior of Howard and others, the complaints are insufficient to show that she opposed an unlawful employment practice by Franklin Bank." Slip op. at 15. By citing Pope v. ESA Servs., however, the district court appears to be suggesting that Green's complaints were not "protected activity" either because, in the court's view, Green did not explicitly oppose employer's practices as unlawful discrimination or because she did not expressly make clear that her opposition stemmed from her belief that the discrimination was racial in nature. Both views are wrong. To satisfy the "protected conduct" element, an employee who opposes unlawful practices is not required to advise her employer that she believes the objectionable practice violates a particular statutory provision. As long as the employee communicates her objections in such a way that it alerts her employer to the nature of the problem, the "protected activity" element of Section 704(a) has been satisfied. Green's complaints to Franklin Bank met these criteria. The bank understood the nature of the problem, because eventually Reep reprimanded Howard for calling Green a monkey and instructed him to cease. Moreover, the bank clearly understood that Green's complaints raised a serious issue, because ultimately the bank fired Howard when he failed to heed Reep's reprimand. Similarly, Green's objections to Howard's comments – calling her "monkey," "black monkey" and "chimpanzee," among other things – reflected Green's perception that these were racial insults, and a reasonable person would understand these comments to be racial insults when addressed to an African American. Cf. Delph, 130 F.3d at 356 n.5 (racial slurs and comments by supervisors such as "black boy," "token black boy" and "nigger" "were patently offensive and no one, certainly not a supervisor, should need to be told as much"); White, 375 F.3d at 298 (comparing African Americans to primates is "similarly odious" to calling them "niggers"). Thus, when Green, an African American, complained about her white colleague's primate and dreadlock comments, she was clearly objecting to acts that disparaged her based on her race, and there was no need for her to articulate that she believed the conduct she was opposing was unlawful racial discrimination under Title VII. As we explain above, there are compelling reasons for concluding that the primate references and other harassing conduct in this case, viewed as a whole, constitute actionable racial harassment. Nevertheless, the conduct to which Green objected need not actually have been unlawful under Title VII, as long as it was reasonable for Green to think it was when she complained. The district court recognized that "[s]tatutorily protected activity includes challenging in good faith a suspected violation of law." Slip op. at 14 (citing Hicks v. St. Mary's Honor Ctr., 90 F.3d 285, 292 (8th Cir. 1996)). As this Court recently noted: "The court's understanding of what constitutes sexual harassment under Title VII is evolving; plaintiffs who reasonably believe that conduct violates Title VII should be protected from retaliation, even if a court ultimately concludes that plaintiff was mistaken in her belief." See Peterson v. Scott County, 406 F.3d 515, 524 n.3 (8th Cir. 2005) (plaintiff engaged in protected conduct when she complained of offensive comments by her supervisor because she reasonably believed supervisor's comments – referring repeatedly to "old ladies," among other things – violated Title VII). The same standards apply with respect to harassment based on race. See Reedy, 333 F.3d at 908. Pope, cited by the district court, is distinguishable in that the plaintiff there did not clearly "object" to anything, let alone object on the grounds of race discrimination. In seeking a promotion from his employer, Pope, an African American, voiced the observation that there were no African American district managers in his region and commented that having African American district managers would serve as an incentive for him. 406 F.3d at 1010. Pope presented no evidence that these seemingly-neutral comments were actually accusations that the absence of African American district managers resulted from race discrimination on the part of ESA Services. Id. There is, likewise, no support for the district court's suggestion that Green, in addition to objecting to Howard's comments, also needed to "oppose Franklin Bank's alleged failure to respond to her complaints." Slip op. at 15. An employer is liable for retaliation if the employer discharged an employee because the employee undertook some protected activity, such as complaining of unlawful harassment. See 42 U.S.C. § 2000e-3(a). It is true, as the district court noted, that in order for an employer to be liable for a hostile work environment there must be, in addition to the unlawful harassment, a failure by the employer to take prompt and effective remedial steps. There is, however, no corresponding requirement that an employee complain about her employer's failure to respond as an element of a claim of retaliation. Thus, an employee satisfies the "protected activity" element of a prima facie case of retaliation by simply complaining about harassment that the employee reasonably believes is unlawful under Title VII. An employer that promptly remedies the harassment or otherwise establishes an available defense could, on that basis, avoid liability for harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Woodland, 302 F.3d at 844 (finding no liability for racially offensive and threatening graffiti because employer took prompt and decisive action). The employer could nevertheless be liable for retaliation if the evidence demonstrated that, in addition to the measures taken to remedy the hostile work environment, the employer took some adverse action against the complaining employee because she had complained. Since an employer's failure to remedy harassment is not an element of a retaliation claim, neither is an employee's failure to object to an employer's untimely or ineffective response to a harassment complaint. The district court thus erred in rejecting Green's retaliation claim on the ground that she failed to object to Franklin Bank's delays in responding to her complaints. Finally, the district court erred in concluding that Green failed to establish the third element of a prima facie case of retaliation – the requisite "causal connection" – on the ground that the three weeks between her last complaint and her termination "is, without more, insufficient to establish an inference of causation." Slip op. at 15-16. "[T]he threshold of proof necessary to establish a prima facie case [of retaliation] is minimal." Logan v. Liberty Healthcare Corp., – F.3d – , 2005 WL 1719851, at *3 (8th Cir. July 26, 2005) (citation omitted). For purposes of establishing a prima facie case, "[a]n inference of a causal connection between a charge of discrimination and termination can be drawn from the timing of the two events." Peterson, 406 F.3d at 524 (citing Smith v. Riceland Foods, Inc., 151 F.3d 813, 819-20 (8th Cir. 1998)). Indeed, this Court has found periods of up to six months sufficient to infer the requisite causal connection for a prima facie case of retaliation. See Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) (inference of causal connection found despite six months between University's reprimand of harasser and harasser's negative recommendation to plaintiff's prospective employers); see also O'Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995) (plaintiff's termination two-and-a-half months after filing discrimination complaint established causal element of prima facie retaliation claim). Decisions of this Court that reject temporal proximity, alone, as the basis for establishing causation actually focus, for the most part, on the third prong of the retaliation analysis – whether plaintiff has created a genuine issue of fact concerning the defendant's legitimate, non-retaliatory reason for the adverse action. In Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc), for instance, the plaintiff, who was deaf, was fired the same day he shouted allegedly insubordinate comments at defendant's co-owner. The co-owner had just told plaintiff the company would not purchase a telecommunications device ("TDD") to enable him to make business and personal telephone calls while at work, as he had been requesting for some time and was in the process of requesting again. Although the adverse action (termination) occurred the same day as the protected activity (requesting, once again, TDD), this Court held that this temporal connection did not "present a genuine factual issue on retaliation." 169 F.3d at 1136. As this Court explained, "[a]lthough contesting an unlawful employment practice is protected conduct, the anti- discrimination statutes do not insulate an employee from discipline for violating the employer's rules or disrupting the workplace." Id. Thus, the decision in Kiel does not turn on the plaintiff's failure to establish a prima facie case of retaliation, but on the plaintiff's failure to rebut the employer's proffered non-retaliatory reason. This Court made a similar point in upholding the jury's finding of retaliation in EEOC v. Kohler Co., 335 F.3d 766 (8th Cir. 2003). There, this Court stated that the timing of the employee's discharge (less than one month after he complained of race discrimination) was insufficient, alone, to sustain the jury's retaliation verdict in plaintiff's favor, although it was sufficient in conjunction with the EEOC's other evidence of pretext (i.e., the company's inconsistent enforcement of the policy proffered as the non-retaliatory reason for discharge). Id. at 774. This Court made it clear, however, that since it was reviewing the case after a jury trial and not after summary judgment, the question of plaintiff's prima facie case was not at issue. As this Court explained: "When the parties have developed a full trial record, we are not concerned with plaintiff's prima facie case. What is relevant, at this point, is simply whether the plaintiff's evidence permits a reasonable inference of discrimination or retaliation." Id. at 772. Other decisions from this Court finding temporal proximity insufficient in retaliation claims likewise appear, in fact, to be addressing the plaintiff's failure to demonstrate "pretext" after the employer has offered a non-retaliatory reason for its actions, rather than the plaintiff's failure to establish a prima facie case. E.g. Jackson v. Flint Ink N. Am. Corp., 370 F.3d at 797-98 (discussing at length plaintiff's failure to refute defendant's claim that it discharged plaintiff for numerous serious disciplinary infractions), mod. on reh'g on other grounds, 382 F.3d 869 (8th Cir. 2004); see Smith v. Riceland Foods, 151 F.3d at 819-20 & n.5 (rejecting notion that prior circuit precedent "stand[s] for the proposition that timing alone is never sufficient to establish the third element of a prima facie case of retaliation"). See also Smith v. St. Louis Univ., 109 F.3d at 1265-66 (finding prima facie case notwithstanding six month period between protected activity and adverse action; distinguishing that case, where University had offered no justification for the adverse action, from cases where summary judgment was upheld because the employer countered evidence of coincidental timing with unrebutted proof of unsatisfactory job performance); cf. Cheshewalla v. Rand & Son Constr. Co., – F.3d – , 2005 WL 1668341, at *4 (8th Cir. July 19, 2005) (noting that where plaintiff failed to rebut employer's legitimate reasons for laying her off one month after reporting co-worker harassment, court's analysis would yield same result whether evidence was considered under the third element of prima facie case or under defendant's legitimate, nondiscriminatory reason). Accordingly, these cases are reconcilable and consistent on this point. While temporal proximity, alone, may under some circumstances be insufficient to demonstrate pretext, it is generally adequate to establish the third element of a prima facie case. See Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1037 (8th Cir. 2005), pet. for reh'g pending (noting difference in proof required to establish causation in prima facie case as opposed to "submissible case of retaliatory discharge"); Logan, 2005 WL 1719851, at *3 ("employee's attempt to prove pretext [in retaliation claims] . . . requires more substantial evidence [than it takes to make a prima facie case]") (citation omitted). At least twice in recent years, this Court has found a prima facie case of retaliation based on a temporal proximity of two weeks. See, e.g., Peterson, 406 F.3d at 524-25; Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002). In Smith v. Allen Health Sys., this Court noted that such a finding was "consistent with the overarching philosophy of the McDonnell Douglas [v. Green, 411 U.S. 792 (1973),] system of proof , which requires only a minimal showing before requiring the employer to explain its actions." 302 F.3d at 833 (emphasis added). Likewise in this case, the mere three weeks between Green's protected activity and her discharge is brief enough to establish Green's prima facie case of retaliation. Such a ruling would not automatically impose liability on Franklin Bank, but would simply shift the focus to the defendant's proffered explanation for its actions. See Wallace v. Sparks Health Sys., – F.3d – , 2005 WL 1679252, at *5 (8th Cir. July 20, 2005) (requirement that employer offer legitimate, nonretaliatory reason for having taken adverse action "is not onerous"); Pope, 406 F.3d at 1007 (same). Thus, such a ruling would move the inquiry closer toward resolution of the ultimate question of discrimination, for which the burden of proof remains on the plaintiff to demonstrate that the proffered explanation is a pretext for retaliation. Id. On the other hand, dismissing a plaintiff's retaliation claim for failure to establish a prima facie case notwithstanding such a close proximity in time would unduly hinder employment discrimination claims. In sum, the district court erred here when it concluded, as a matter of law, that three weeks between Green's last complaint of harassment and her discharge was too long a span of time to support the third element of Green's prima facie case. The question of whether Green's retaliation claim should go to a jury or be dismissed on summary judgment properly turns not on whether Green has demonstrated a prima facie case of retaliation – because on this record she has – but on whether Green's summary judgment evidence is sufficient for a reasonable jury to conclude that Franklin Bank's proffered reason for discharging her – that she declined to work her scheduled hours on August 27 and 28, 2002 – was a pretext for retaliation. CONCLUSION For the foregoing reasons, we respectfully urge this Court to hold that the district court incorrectly analyzed Green's race harassment and retaliation claims. Howard's comments – including calling Green "monkey," "black monkey" and "chimpanzee" – are severe enough to establish a hostile work environment claim under Title VII, and Green's allegations, taken as a whole, demonstrate race harassment severe or pervasive enough to withstand summary judgment. Furthermore, Green established a prima facie case of retaliation when she complained about Howard's harassing comments and was discharged approximately three weeks after her last complaint. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DATED: August 3, 2005 SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Comm. 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 6,968 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). The accompanying diskette has been scanned for viruses and is virus-free. August 3, 2005 Susan R. Oxford CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on this 3rd day of August, 2005, I caused two copies of the attached brief and one diskette containing an electronic version of the brief in pdf format to be sent by Federal Express, postage prepaid, to counsel of record at the following addresses: Stephen C. Fiebiger, Esq. Stephen C. Fiebiger & Associates, Chtd. 2500 West County Road 42, Suite 190 Burnsville, MN 55337 John Joseph McDonald, Jr., Esq. Bradley J. Lindeman, Esq. MEAGHER & GEER 33 S. Sixth Street 4200 Multifoods Tower Minneapolis, MN 55402 Susan R. Oxford, Attorney EEOC / Office of General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 August 3, 2005 Fax. (202) 663-7090 susan.oxford@eeoc.gov ATTACHMENTS TABLE OF CONTENTS 1. Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259 (1993) 2. Courtland Milloy, The Blinding Racism of His Comment, Wash. Post, Mar.6, 1996 ********************************************************************** <> <1> The Commission takes no position on any other issues in this appeal. <2> Except when indicated otherwise, these facts are taken from the district court’s summary judgment order and are, for the most part, undisputed. <3> In this disturbing movie, deranged serial killer Hannibal Lechter boasts of his cannibalism and threatens the investigator who interviews him in prison with the same fate. See Plot Summary for The Silence of the Lambs, at http://www.imdb.com/title/tt0102926/plotsummary (Aug. 2, 2005). <4> The district court also held that Green failed to show Franklin Bank’s response to her complaints was improper. Slip op. at 10. The Commission does not address this fact-specific issue. <5> The district court also held that Green did not establish that the bank’s reason for terminating her [refusal to work August 26 and 27] was pretextual.” Slip op. at 16. The Commission does not address this fact-specific issue. <6> In analyzing a claim of intentional discrimination brought under § 1981, this Court applies the same standards as it would apply to a similar Title VII claim. Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d at 907. <7> See, e.g., U.S. Const., Art. I § 2 cl.3 (quantifying enslaved African Americans, for representation purposes, as three-fifths of a person); Herbert Alptheker, Vol. I A Documentary History of the Negro People in the United States 58 (1951) (quoting George Lawrence, An Oration on the Abolition of the Slave Trade (N.Y. 1813)) (“[t]here was a time whilst shrowded in ignorance, the African was estimated no higher than beasts of burden”).