Statement of Interest

The Equal Employment Opportunity Commission (“Commission”) is the federal agency charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal antidiscrimination statutes. As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a).

In this case, the district court limited the temporal scope of the plaintiff’s Title VII-based hostile work environment claim to exclude harassing conduct occurring outside the 300-day period before she filed a charge of discrimination with the Commission. Relying on pre-2002 case law, the district court concluded that this limitation was warranted because, under the continuing violation doctrine, the plaintiff should have taken action against her employer as soon as she had suffered a quantum of harassing conduct sufficient to “have alerted [her] to act to protect her rights”—here, according to the district court, when she returned from a sabbatical in the fall of 2011.

In so reasoning, however, the district court contravened now-clear precedent of the Supreme Court and this Court. That precedent holds that a hostile work environment is a single unlawful employment practice and not a series of discrete acts, see, e.g., National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and courts therefore may not circumscribe the temporal scope of a hostile work environment claim because the victim knew or should have known at some earlier time that she was being subjected to unlawful harassment. Because of the importance of this Court’s resolution of this question to the effective enforcement of Title VII, the Commission offers its views to the Court.

Table of Contents

Statement of Interest........................................................................... i

Table of Authorities........................................................................... iv

Statement of the Issue........................................................................ 1

Statement of the Case......................................................................... 1

I. Statement of Facts................................................................ 1

II. District Court Decision....................................................... 5

Argument.............................................................................................. 8

The district court erred in excluding acts of

harassment occurring more than 300 days before

the plaintiff filed her charge of discrimination

with the Commission, where the acts were all part

of the same hostile work environment................................... 8

Conclusion.......................................................................................... 19

Addendum

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases Page(s)

Celestine v. Petroleos de Venezuella SA,

266 F.3d 343 (5th Cir. 2001)......................................... 6, 7, 15

EEOC v. Boh Bros. Const. Co.,

731 F.3d 444 (5th Cir. 2013).................................................. 14

Faragher v. City of Boca Raton,

524 U.S. 775 (1998).......................................................... 13, 14

Green v. Brennan,

136 S. Ct. 1769 (2016)............................................................. 10

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993)............................................................... 9, 10

Messer v. Meno,

130 F.3d 130 (5th Cir. 1997).............................................. 7, 15

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002)......................................................... passim

Ryals v. Am. Airlines, Inc.,

553 F. App’x 402 (5th Cir. 2014)........................................... 17

Stewart v. Miss. Transp. Comm’n,

586 F.3d 321 (5th Cir. 2009).......................... 9, 11, 16, 18, 19

Statutes and Regulations

42 U.S.C. § 2000e-2(a)(1).................................................................... 8

29 C.F.R. § 1601.14(a)......................................................................... 4

Other Authority

EEOC Compliance Manual, No. 915-003, Section 2: Threshold

Issues, at 2-IV(C)(1)(b)............................................................ 12

Brief of EEOC as Amicus Curiae, Ryals v. Am. Airlines,

No. 10-11035 (5th Cir.) (filed Feb. 9, 2011)......................... 17

Statement of the Issue[1]

Whether the district court erred in excluding acts of harassment occurring more than 300 days before the plaintiff filed her charge of discrimination with the Commission, where the acts were all part of the same hostile work environment practice?

Statement of the Case

I. Statement of Facts

In 1996, plaintiff Panagiota Heath began working for defendant Board of Supervisors for the Southern University and Agricultural and Mechanical College (“Southern”), teaching mathematics at Southern’s New Orleans campus. ROA.492; see also ROA.780, 784 (district court’s Order and Reasons on summary judgment). In 2003, Heath’s colleague, Dr. Mostafa Elaasar, became the chairman of the school’s Mathematics and Physics Department. ROA.492. Over the next few years, the relationship between Heath and Elaasar deteriorated, with him denying her permission to take leave to visit her dying mother; taking away her authority to write her own final exams for her students; refusing to promote her to a full professor position; denying her request to take a sabbatical to write a book; encouraging a student to file a written complaint about her; and other issues. ROA.493-96. Heath complained to Southern about Elaasar’s conduct toward her, to no avail. ROA.495-96. In 2009, Heath filed a lawsuit in state court asserting gender discrimination and other claims, but did not prosecute the suit.[2] ROA.375, 786 n.4.

In mid-2010, Heath’s physician recommended that Heath take a sabbatical due to her recent “significant job-related stresses” and her uncontrolled diabetes and hypertension. ROA.620. Southern granted Heath’s sabbatical request and Heath was on leave for the 2010-11 academic year. ROA.614-15. Upon Heath’s return to teaching in the fall of 2011, Elaasar continued to undermine her work. Heath alleged that, among other things, Elaasar refused to permit her to participate in any committees, even though she was a senior tenured faculty member; would not allow her to teach online courses, which consequently forced her to seek outside employment to maintain her currency in this area of instruction; would not permit her to write grants for the department; and would not allow her to teach courses above the basics level. ROA.497-99. Heath further alleged that Elaasar publicly humiliated her during departmental meetings by not letting her finish talking or not acknowledging her when she requested to talk, and that he isolated her from department business by working with the other teachers behind closed doors. ROA.498-99.

There also was evidence that Elaasar treated Heath in a hostile and abusive manner in front of her students. A number of Heath’s students from the time after her sabbatical averred that Elaasar’s treatment of Heath in the classroom was “unprofessional, unwelcoming, and even aggressive”; that Elaasar “belittled or otherwise spoke down when speaking to Dr. Heath, and also when speaking about her to students when she was not present”; and that he “would usually attempt to physically intimidate her as well as to disrespect her.” ROA.524, 526, 529. One student characterized Elaasar’s treatment of Heath as “border[ing] on the barbaric,” displaying his “open hatred and contempt” for her. ROA.526-27. Ultimately, several of Heath’s students circulated a “demand for justice” petition addressed to Southern’s Chancellor, requesting that Elaasar be removed and that “Heath’s work environment be re-directed as non-hostile” and “non-harassing.” ROA.554-67. The petition contained at least 248, and perhaps over 500, signatures, before Heath requested that the students cancel their petition drive because she believed it reflected poorly on Southern. ROA.499, 525, 554-67.

Heath complained to Southern about Elaasar’s continued attempts to undermine her work in September 2012, and registered another complaint about his conduct in November 2012. ROA.498-500. The record does not reflect what response, if any, Southern made to Heath’s complaints.

In early 2013, Heath filed a charge with the Commission regarding her treatment by Elaasar; she subsequently filed this action.[3] In response to Southern’s motion for summary judgment, Heath repeatedly asserted that her hostile work environment claim was based on Elaasar’s conduct upon her return from her sabbatical in fall 2011 going forward, and that the temporal scope of her claim did not extend earlier than that date. See, e.g., ROA.468 (“Heath here makes no attempt to make any fact actionable prior to her return to SUNO in the Fall of 2011.”). Neither party cited to the district court the Supreme Court’s seminal decision on timeliness – National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

II. District Court Decision

The district court granted Southern’s motion for summary judgment, concluding in relevant part that Heath’s hostile work environment claim was limited in temporal scope to 300 days prior to the date she filed her charge. ROA.791-96. However, in reaching this conclusion, the district court made no mention of the standards for hostile work environment claims set out in depth by the Supreme Court in Morgan. ROA.791-96. Nor did the district court rely on any of this Court’s (or any circuit court’s) post-Morgan decisions analyzing a Title VII hostile work environment claim under the standards discussed in Morgan. ROA.791-96. Instead, the district court relied exclusively on pre-Morgan authority. See id.

The court first observed that “[a]ny Title VII discrimination claim that is not filed within 300 days of an occurrence is dismissed as untimely absent a demonstration of a continuing violation.” ROA.791 (citation omitted). The district court then discussed the applicability of “the continuing violation doctrine,” which it defined as “‘designed to accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered timely.’” ROA.792 (quoting Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351-52 (5th Cir. 2001)).

The court placed particular emphasis on this Court’s statement in Celestine that “where a pattern of harassment spreads out over years, and it is evident long before the plaintiff sues that she was a victim of actionable harassment, she cannot reach back and base her suit on conduct that occurred outside the statute of limitations.” ROA.793 (quoting 266 F.3d at 352) (emphasis added by district court). From this, the district court stated that “‘[t]he focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.’” ROA.793 (quoting Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)).

After observing that this question of such an “alert[ing]” event involves a fact-specific inquiry, the court discussed Heath’s experiences with Elaasar dating from 2003 to the time she filed her charge. ROA.793-96. The court observed that “the conduct that Heath alleges supports her hostile environment claim began after Elaasar became department chairman,” “continued after she filed her 2009 suit until she took her sabbatical,” and “resumed upon her return in 2011.” ROA.796. The court concluded that “[t]he resumption of the alleged behavior after her return from her sabbatical should have alerted Heath to act to protect her rights, particularly in light of the fact that some of the same behavior prompted her to file the state court petition in 2009.” ROA.796. Because Heath did not do so, “[t]he continuing violation doctrine is not available to extend the temporal scope of Heath’s action.” ROA.796. The court therefore limited the temporal scope of Heath’s hostile work environment claim to the 300 days preceding April 8, 2013, the date she had filed her charge. ROA.796. The court ultimately concluded that Heath could not establish a hostile work environment claim based on Elaasar’s conduct during that 300-day period. ROA.799-808.

Argument

The district court erred in excluding acts of harassment occurring more than 300 days before the plaintiff filed her charge of discrimination with the Commission, where the acts were all part of the same hostile work environment.

Title VII makes it unlawful for employers to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Courts have long understood that “‘although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition “is not limited to ‘economic’ or ‘tangible’ discrimination,” and that it covers more than “terms” and “conditions” in the narrow contractual sense.’” Morgan, 536 U.S. at 115-16 (citations omitted). “When the workplace is 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,’ Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations omitted); Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009) (same).

As the Supreme Court explained in Morgan, “[h]ostile environment claims are different in kind from discrete acts” such as terminations or refusals to hire, as “[t]heir very nature involves repeated conduct.” 536 U.S. at 115 (citation omitted). “The ‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. (citing Harris, 510 U.S. at 21). “Such claims are based on the cumulative effect of individual acts”; that is, “[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at 115, 117 (citation omitted).

When assessing a hostile work environment claim, the “court’s task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice.” Id. at 120; see also Green v. Brennan, __ U.S. __, 136 S. Ct. 1769, 1778 (2016) (recognizing Morgan held “that a hostile-work-environment claim is a single ‘unlawful employment practice’ that includes every act composing that claim, whether those acts are independently actionable or not”). Accordingly, to determine whether a plaintiff has been subjected to a hostile work environment, courts “look to ‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Morgan, 536 U.S. at 116 (quoting Harris, 510 U.S. at 23).

Of particular relevance here, courts must also assess whether all alleged instances of discriminatory conduct, including those occurring prior to the statutory charge-filing time frame, are properly considered as components of the hostile work environment claim. Id. at 116-17. “It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id.; see also Stewart, 586 F.3d at 328 (same). “Given, therefore, that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.” Morgan, 536 U.S. at 118.

Notably, the Supreme Court emphasized that “[i]t is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold . . . that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.” Id. at 118 (emphasis added). That is, a plaintiff need not take formal action against her employer once she has become aware that she is being subjected to unlawful harassment. The Supreme Court offered an example illustrating this aspect of its holding:

Acts contribute to a hostile environment on days 1–100 and on day 401, but there are no acts between days 101–400. . . . [A] hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim.

Morgan, 536 U.S. at 118.

As this example makes clear, the fact that a victim of harassment believed at an earlier time that “an actionable claim happened” does not preclude her ability to challenge the employer’s conduct later. See also EEOC Compliance Manual, No. 915-003, Section 2: Threshold Issues, at 2-IV(C)(1)(b) (citing Morgan for the proposition that “[b]ecause the incidents that make up a hostile work environment claim ‘collectively constitute one “unlawful employment practice,”’ the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the charging party knew or should have known were actionable at the time of their occurrence”), available at https://www.eeoc.gov/policy/docs/threshold.html#2-IV-C-1-b.

However, in the instant action, the district court failed to follow these now-settled principles. The district court determined that “[t]he resumption of the alleged behavior after her return from her sabbatical should have alerted Heath to act to protect her rights” and that because Heath did not “act” at that time, “[t]he continuing violation doctrine is not available to extend the temporal scope of Heath’s action” beyond the 300 days preceding the filing of her charge. ROA.796. As the district court did what Morgan concluded a court may not do, the district court committed reversible error.

The district court’s analytical approach was also inconsistent with the principle that an employee should first complain internally—and the employer should be given the opportunity to remedy the harassment—before an individual files a discrimination charge. It has long been recognized that Title VII’s “‘primary objective,’ like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.” Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). Title VII has at its core the “basic policies of encouraging forethought by employers and saving action by objecting employees.” Id. To those ends, the law encourages employees to make their first report of a perceived hostile work environment to the employer itself so the employer can attempt to remedy it, rather than first initiating formal proceedings against the employer. See Faragher, 524 U.S. at 807-08 (establishing affirmative defense for employers in certain types of hostile work environment claims; “[t]he defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise”); see also EEOC v. Boh Bros. Const. Co., 731 F.3d 444, 463 n.19 (5th Cir. 2013) (en banc) (“We emphasize that as employers’ anti-harassment policies become increasingly comprehensive and well-implemented, a plaintiff’s success will often turn on whether he promptly reported the harassing conduct. . . . [W]here an employer implements suitable institutional policies and educational programs regarding sexual harassment, an employee who fails to take advantage of those policies cannot recover.”).

The district court’s approach here also lacks the support of this Court’s precedent. The district court relied upon this Court’s statements in Celestine that “where a pattern of harassment spreads out over years, and it is evident long before the plaintiff sues that she was a victim of actionable harassment, she cannot reach back and base her suit on conduct that occurred outside the statute of limitations,” 266 F.3d at 352, and in Messer that “‘[t]he focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights,’” 130 F.3d at 135. ROA.793.

These aspects of the holdings in Celestine and Messer, however, are no longer good law in the wake of Morgan. As the Supreme Court stated in Morgan, “[i]t is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct. The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability.” 536 U.S. at 117-18 (emphasis added). Morgan is thus unequivocal in its rejection of the standards discussed in Celestine and Messer and relied upon by the district court.

Moreover, this Circuit has tacitly acknowledged as much in its post-Morgan decisions involving hostile work environment claims. For example, this Court observed in Stewart that, under Morgan, there are only three factors that may operate to limit the general “continuing violation” doctrine: first, if the plaintiff fails to demonstrate that the separate acts are related; second, if an intervening action “severs” the earlier acts from the later ones; and third, if the court chooses to “temper” the doctrine by exercising its equitable authority where necessary to “honor Title VII’s remedial purpose without negating the particular purpose of the filing requirement.” Stewart, 586 F.3d at 328 (quoting Morgan, 536 U.S. at 118-20). Consistently with Morgan, when this Court discussed these three available limiting factors in Stewart, it made no mention of the “alerting event” standard relied upon by the district court—that the temporal scope of a hostile work environment claim may be limited by the victim’s earlier awareness that the employer was engaged in unlawful conduct. See id.

This Court has also recognized, albeit in an unpublished decision, that the Commission’s position on this question is the correct interpretation of the law. In Ryals v. American Airlines, Inc., the plaintiff alleged that she had been subjected to a race-based hostile work environment in violation of Title VII. 553 F. App’x 402, 404 (5th Cir. 2014) (unpubl.). One question before this Court on appeal was whether the district court had properly applied the continuing violation doctrine when it excluded harassing conduct that had occurred more than 300 days prior to the date the plaintiff filed her charge of discrimination with the Commission. Id. at 405. The Commission argued as amicus curiae that courts cannot limit the temporal scope of a plaintiff’s hostile environment claim to 300 days before she filed her charge because she was aware at an earlier time that she was being subjected to an unlawful hostile work environment. Brief of EEOC as Amicus Curiae, Ryals v. Am. Airlines, at 9-12 (attached at addendum-1). This Court ultimately resolved the case on different grounds, but nevertheless recognized that “[t]he EEOC correctly asserts the applicable law.” Ryals, 553 F. App’x at 412.

We note that there does not appear to be any argument among the parties as to whether any of the limiting principles identified in Morgan, as discussed in Stewart, would operate to curtail the temporal scope of Heath’s hostile work environment claim. In seeking summary judgment, Southern focused solely on limiting the temporal scope of Heath’s claim because, Southern argued, Heath should have been aware of her claim long before she filed her charge. See ROA.350, 363 (Southern’s Memorandum in Support of Motion for Summary Judgment, in which it argued “there were multiple events which either should have or in fact did trigger Heath’s awareness and duty to assert her rights”); ROA.701-06 (Southern’s Reply Memorandum in Support of Motion for Summary Judgment, presenting no argument on other limiting principles described in Morgan). Southern did not argue, for example, that the earlier harassment was unrelated to the harassment within the limitations period. As in Stewart, the incidents of harassment directed at Heath were all perpetrated by the same individual. See generally ROA.350-73, 701-06 (Southern’s memoranda in support of summary judgment); see also Stewart, 586 F.3d at 325-27 (harassment perpetrated by a single manager). Nor was the earlier harassment “severed by the intervening acts of [Heath’s] employer,” Stewart, 586 F.3d at 329, as Southern did not proffer evidence that it undertook any corrective action. See generally ROA.350-73, 701-06 (Southern’s memoranda). Moreover, Southern did not argue that the doctrine of laches or some other equitable defense operated to limit Heath’s claim. See generally ROA.350-73, 701-06 (Southern’s memoranda). Rather, it relied only on the limiting factor provided by Celestine and Messer that was subsequently overruled by Morgan. See generally ROA.350-73, 701-06 (Southern’s memoranda).

Conclusion

For the foregoing reasons, the Commission respectfully requests that the Court vacate the judgment of the district court and remand the matter for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN Associate General Counsel

MARGO PAVE

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] Heath’s state court complaint presented claims based on the Louisiana constitution and the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq., but did not reference federal laws prohibiting sex discrimination in employment. See generally ROA.375-81. There is no indication in the record that Heath filed a charge of discrimination with the Commission prior to filing her state court lawsuit.

[3] It is unclear when exactly Heath filed her charge, but the record reflects that on April 8, 2013, the Commission issued Southern a notice of the charge, suggesting that she filed her charge in late March 2013. ROA.430; see also 29 C.F.R. § 1601.14(a) (stating, subject to certain limited exceptions, that “[w]ithin ten days after the filing of a charge in the appropriate Commission office, the Commission shall serve respondent a copy of the charge”). Nevertheless the district court deemed Heath’s charge filed on April 8, 2013. ROA.791.