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 Opinion.............................................................................. 3

Summary of Argument....................................................................................... 4

Argument........................................................................................................... 5

A. The district court erred by holding that incidents of harassment

occurring prior to the charge-filing period are irrelevant to Title VII

liability unless the incidents occurring within the charge-filing period constitute an independent statutory violation.................................................................. 5

B. The existence of a non-retaliatory reason for an adverse employment

action cannot defeat liability for retaliation when a plaintiff establishes

“but-for” causation.................................................................................... 9

Conclusion....................................................................................................... 11

Certificate of Service

Table of Authorities

Cases

Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24 (1st Cir. 2012)....... 6

Burrage v. United States, 134 S. Ct. 881 (2014)................................................. 10

Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002)...................................... 6

Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018)............................... 6

Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228 (4th Cir. 2016)............. 11

Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007)................. 7

Jensen v. Henderson, 315 F.3d 854 (8th Cir. 2002).............................................. 7

Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc).... 11

Lockridge v. Univ. of Me. Sys., 597 F.3d 464 (1st Cir. 2010)......................... 3, 7, 8

Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1 (1st Cir. 2017).......... 6

Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002)..................................... 6

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)......................... 3, 5-9

Perez v. Horizon Lines, Inc., 804 F.3d 1 (1st Cir. 2015)................................ 3, 7, 8

Shields v. Fort James Corp., 305 F.3d 1280 (11th Cir 2002)................................ 7

United States v. Ortiz-Carrasco, 863 F.3d 1 (1st Cir. 2017)................................ 10

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)............................ 9, 10

Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 26510

(1st Cir. 2014).................................................................................................. 10

Vickers v. Powell, 493 F.3d 186 (D.C. Cir. 2007)................................................. 7

Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013).......................... 11

Statute

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.................... 1

Rule

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

Other Authority

EEOC Compl. Man., § 2-IV, Timeliness, 2009 WL 2966756 (Aug. 6, 2009)..... 1, 5

EEOC Enforcement Guidance on Retaliation and Related Issues,

2016 WL 4688886 (Aug. 25, 2016)................................................................... 10

Statement of Interest

The Equal Employment Opportunity Commission (EEOC) is charged by Congress with interpreting, administering, and enforcing federal laws against employment discrimination, including Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq. This appeal presents an important issue regarding the timeliness of harassment charges, which is an issue that the EEOC has addressed in its Compliance Manual. EEOC Compl. Man., § 2-IV, Timeliness, 2009 WL 2966756, at text accompanying nn.188-93 (Aug. 6, 2009). The appeal also raises an issue regarding the meaning of “but-for” causation, a critical aspect of liability for retaliation under Title VII. Because the EEOC has a strong interest in seeing that both of these issues are resolved correctly, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

Statement of the Issues[1]

1. Did the district court err by holding that incidents of harassment occurring prior to the charge-filing period are irrelevant to Title VII liability unless the incidents occurring within the charge-filing period constitute an independent statutory violation?

2. Did the district court err by holding, in the alternative, that even if Nieves could “prove” the hotel would not have terminated him “but for” his filing of an EEOC charge, the hotel should prevail anyway because Nieves could not show that the hotel’s proffered non-discriminatory explanation was pretextual?

Statement of the Case

A. Statement of Facts[2]

Leonides Nieves Borges (“Nieves”) worked at the El Conquistador Hotel in Fajardo, Puerto Rico, from 1993 to 2015. (App., Vol. II at 1254.) He alleges that the Human Resources director, Luis Alvarez, sexually harassed him and subjected him to a hostile work environment for thirteen years. Id. at 1255. In February 2015, he filed an EEOC charge alleging that Alvarez touched him “a gazillion” times between 2001 and 2014. Id. at 1258. The charge includes three incidents of harassment that allegedly occurred within the previous 300 days: (1) Alvarez invited him to his home one night to show him “something,” (2) Alvarez invited him to his home another night to discuss work-related matters, and (3) Alvarez “touched … Nieves’s hands in a sexual manner, gazed [at] his body top-down, and invited him to [have] drinks after work.” Id. at 1257. In subsequent depositions, Nieves and others described additional incidents when Alvarez allegedly harassed Nieves prior to the charge-filing period. These earlier incidents included unwanted looks and touching. Id. at 1259.

In July 2015, the hotel terminated Nieves after he lied about an illness to attend a private business event. The termination was the eleventh disciplinary action the hotel had taken against Nieves since he began working in 1993. Id. at 1258.

Nieves sued under Title VII, alleging that the hotel had subjected him to a hostile work environment and retaliated against him for complaining about harassment and filing an EEOC charge. (App., Vol. I at 1.) The hotel moved for summary judgment. Id. at 576.

B. District Court Opinion

The district court granted summary judgment on both claims. With respect to the hostile work environment claim, the court correctly observed that so long as an act contributing to a hostile work environment occurs within the statutory limitations period, the entire time period of the hostile environment may be considered for purposes of determining liability. (App., Vol. II at 1262 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002))). Nevertheless, the court stated, “this anchoring act ‘must itself be discriminatory.’” Id. (quoting Perez v. Horizon Lines, Inc., 804 F.3d 1 (1st Cir. 2015) (citing Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir. 2010)). Concluding that no reasonable jury could find that the three timely acts alleged in Nieves’s 2015 EEOC charge were sufficient to constitute actionable sexual harassment, the court held that all incidents outside the charge-filing period were therefore time-barred. Id. at 1262, 1266, 1269.

With respect to the retaliation claim, the court observed that a plaintiff must show that his protected activity was a “but-for” cause of the alleged retaliation. Id. at 1271. The court held that no reasonable factfinder could find that Nieves satisfied this standard. Id. at 1272-73. In the alternative, the court said, “[e]ven if Plaintiff Nieves could prove the Hotel would not have terminated him but for filing the EEOC claim, Defendants have met their burden of providing a non-discriminatory reason for his suspension and termination,” which Nieves failed to rebut. Id. at 1273-74.

Summary of Argument

As the Supreme Court has explained, a hostile work environment differs from a discrete act of discrimination because it occurs over an extended period of time. Here, the district court erroneously believed that, unless the incidents of harassment that occurred within the statutory charge-filing period were sufficient, standing alone, to constitute an actionable hostile work environment, any earlier harassing incidents were irrelevant to liability. The Supreme Court and this Court have both held, however, that all incidents of harassment are relevant to liability as long as any act contributing to the hostile environment occurs within the charge-filing period. That “anchoring” act need not be independently actionable.

The district court also erred by holding, in the alternative, that the Hotel could defeat Nieves’s retaliation claim “[e]ven if Plaintiff Nieves could prove the Hotel would not have terminated him but for filing the EEOC claim.” “But-for” causation does not mean that retaliation must be the “sole cause.” Once a plaintiff has established that retaliation was a but-for cause of an adverse employment action, the defendant is liable under Title VII. The existence of additional, non-retaliatory bases for the challenged action does not defeat liability, and a plaintiff has no obligation to show that the additional asserted reasons are pretextual.

Argument

A. The district court erred by holding that incidents of harassment occurring prior to the charge-filing period are irrelevant to Title VII liability unless the incidents occurring within the charge-filing period constitute an independent statutory violation.

Courts assess the timeliness of charges alleging a hostile work environment differently from those alleging discrete acts of discrimination. As the Supreme Court has explained, a hostile work environment “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.” Morgan, 536 U.S. at 115. Because hostile environment claims depend on “the cumulative effect of individual acts,” id., a court must consider the entire course of conduct as long as “any act” contributing to the hostile environment occurs within the charge-filing period. Id. at 118 (emphasis added); see EEOC Compl. Man., § 2-IV, Timeliness, 2009 WL 2966756, at text accompanying n.189 (Aug. 6, 2009) (entire hostile work environment claim is actionable “as long as at least one incident that is part of the claim occurred within the filing period”).

This Court has correctly interpreted Morgan to hold that, even if the acts within the charge-filing period are insufficient, on their own, to support a jury verdict, a court must consider the entire course of conduct for purposes of liability as long as one related act took place within the charge-filing period. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002). What matters is that “some instance of harassment” happened within the charge-filing deadline. Franchina v. City of Providence, 881 F.3d 32, 47 (1st Cir. 2018) (emphasis added); see also Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 30-31 (1st Cir. 2012) (considering all alleged incidents of harassment, including incidents prior to charge-filing period, to determine whether plaintiff has shown a hostile work environment); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002) (“[T]he statute of limitations is satisfied as long as the plaintiff files a charge within 300 days of one of the many acts that, taken together, created the hostile work environment.”) (emphasis added). The critical issue is whether the timely allegations of harassment are part of the same hostile work environment as that alleged to have occurred prior to the statutory time limit. Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1, 9-10, 13 (1st Cir. 2017).

Other circuits agree. See Vickers v. Powell, 493 F.3d 186, 200 (D.C. Cir. 2007) (making “common sense observation” that a hostile work environment may include pre-limitations conduct whether or not the conduct within the charge-filing period is sufficient to establish a statutory violation); Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 140-41 (4th Cir. 2007) (unnecessary for acts within charge-filing period to be actionable on their own); Jensen v. Henderson, 315 F.3d 854, 859 (8th Cir. 2002) (“Only the smallest portion of that ‘practice’ needs to occur within the limitations period for the claim to be timely.”); Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002) (“[I]f the smallest portion of that ‘practice’ occurred within the limitations time period, then the court should consider it as a whole.”).

The district court here cited Lockridge, 597 F.3d at 474, and Perez, 804 F.3d at 1, to support its position that timely allegations of harassment must, themselves, be fully actionable to sweep in previous allegations of related harassment. (App., Vol. II at 1262.) But neither case stands for this proposition. Lockridge holds, in accordance with Morgan, that incidents of harassment prior to the charge-filing period are relevant “if they are deemed part of an ongoing series of discriminatory acts and there is ‘some violation within the statute of limitations period that anchors the earlier claims.’” Lockridge, 597 F.3d at 474 (citation omitted). In Lockridge, the only alleged “anchoring acts” were two discrete acts—denials of a pay raise and of office space—that the court had already held were neither discriminatory nor retaliatory. Id. at 471, 473. Accordingly, the court found, there were no alleged acts of harassment within the charge-filing period to anchor the hostile work environment. To the extent the district court read Lockridge to require an independently actionable harassing act within the charge-filing period, it overread that case.

Perez also does not support the district court’s interpretation. Like Lockridge, Perez referred to a “discriminatory ‘anchoring act’” within the limitations period and said the “‘anchoring act’ must itself be discriminatory.” 804 F.3d at 7-8 (citing Lockridge, 597 F.3d at 474). However, the Perez Court defined an “anchoring act” as one that “‘contribut[ed] to [the] hostile environment.’” Id. at 8 (quoting Morgan, 536 U.S. at 105) (first alteration in original). The plaintiff in Perez identified one allegedly harassing act within the charge-filing period—his supervisor’s request that Pérez have another employee bring cornbread and pastries to her office—but the court held that this act “did not contribute to the creation of ‘an objectively hostile or abusive work environment.’” Id. at 7 (citation omitted). Perez thus applied the correct legal standard and does not support the district court’s position that an “anchoring act” must be independently discriminatory.

Here, Nieves points to three “anchoring acts” within the charge-filing period: (1) Alvarez invited him to his home one night to show him “something,” (2) Alvarez invited him to his home another night to discuss work-related matters, and (3) Alvarez “touched … Nieves’s hands in a sexual manner, gazed [at] his body top-down, and invited him to [have] drinks after work.” (App. Vol. II at 1257.) At a minimum, the third allegation is similar to the type of harassing conduct that Nieves alleged outside the charge-filing period, when he says that Alvarez touched him “a gazillion times.” Id. at 1258. Accordingly, Nieves has alleged at least one act within the charge-filing period contributing to the hostile work environment. See Morgan, 536 U.S. at 118. Under Morgan, the district court erred by dismissing the hostile work environment claim as untimely.

B. The existence of a non-retaliatory reason for an adverse employment

action cannot defeat liability for retaliation when a plaintiff establishes “but-for” causation.

The district court also relied on a legally erroneous alternative holding. The court stated, “Even if Plaintiff Nieves could prove the Hotel would not have terminated him but for filing the EEOC claim, Defendants have met their burden of providing a non-discriminatory reason for his suspension and termination.” (App., Vol. II at 1273) (first emphasis added). Thus, the court said, Nieves was required to show evidence of pretext, which he did not do. Id. at 1273-74. This alternative ruling reflects a profound misunderstanding of the nature of “but-for” causation.

Title VII requires a plaintiff to show that retaliation “was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013); see also Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 278 (1st Cir. 2014) (plaintiff “must show that he would not have been fired had he not complained”). Under the district court’s hypothetical scenario, Nieves would have proved just that. Having established that the Hotel would not have suspended or fired him in the absence of a retaliatory motive, Nieves would not have needed to address any additional, non-retaliatory explanations for the Hotel’s actions.

Nieves would not need to show pretext even if the Hotel’s asserted non-retaliatory explanations were also but-for causes of his suspension and termination. Retaliation can be a “but-for” cause even if it “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.” Burrage v. United States, 134 S. Ct. 881, 888 (2014) (discussing “but-for” causation outside the context of Title VII); see also EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL 4688886, at *21 (Aug. 25, 2016) (“There can be multiple ‘but-for’ causes, and retaliation need only be ‘a but-for’ cause of the materially adverse action in order for the employee to prevail.”) (quoting Nassar, 570 U.S. at 362); cf. United States v. Ortiz-Carrasco, 863 F.3d 1, 5 (1st Cir. 2017) (in criminal case, defendant’s conduct would be a “but for” cause of death even if Coast Guard’s actions also contributed to death).

The district court acknowledged elsewhere in its opinion that “but for” is not the same as “sole cause.” (App., Vol. II at 1271); accord, e.g., Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 236 n.5 (4th Cir. 2016); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013); Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315-16, 321 (6th Cir. 2012) (en banc). It lost track of this standard when issuing its alternative holding. The EEOC respectfully asks this Court to correct the district court’s error.

Conclusion

All of Nieves’s allegations of harassment, not just the ones within the charge-filing period, were relevant to his hostile work environment claim. The district court erred by limiting its analysis to the three timely incidents alleged in his EEOC charge. The district court also erred by holding that even if Nieves could establish that the Hotel would not have suspended or fired him “but for” retaliation, Nieves would also have to show that the Hotel’s asserted non-retaliatory explanation was pretextual.

For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this case.

[2]The factual representations in this brief are based on the district court’s opinion.