The Equal Employment Opportunity Commission is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See 42 U.S.C. § 2000e-5. This appeal presents several important issues concerning the proper analysis of actionable hostile work environment and constructive discharge claims under Title VII.

In rejecting the plaintiff’s hostile work environment claim, the district court erroneously refused to consider any harassing behavior that occurred outside of the plaintiff’s workplace, and diminished and disaggregated the evidence of harassment. That improper analysis also doomed the plaintiff’s constructive discharge claim. Unless corrected by this Court, the district court’s analysis of these issues would improperly limit the ability of victims of harassment to obtain redress under Title VII and would adversely affect the Commission’s enforcement of the statute. We therefore offer our views to the Court. See Fed. R. App. P. 29(a).

1. Whether the district court erred in holding that the plaintiff did not adduce sufficient evidence of severe or pervasive harassment to survive summary judgment where there was evidence that the harasser showed the plaintiff his graffitied statement that he “was going to fuck [her] in the ass,” stalked her in the workplace and at home, and violently attacked her husband.

2. Whether the district court erred in ruling there was insufficient evidence that the plaintiff was constructively discharged where she resigned after her harasser attacked her husband and she reasonably feared for her family’s safety.

STATEMENT OF THE CASE

A. Statement of the Facts

Amelia Pando began working as a cashier for a Lowe’s Market grocery store in Odessa, Texas, in January 2014. ROA.144. Lowe’s has an anti-discrimination policy that directs employees with “questions or concerns about any type of discrimination in the workplace” “to bring these issues to the attention of their immediate supervisor.” ROA.100. The policy further states that if employees have a grievance with a manager, they “may take their grievance to the next highest manager . . . or to the Human Resources Director, for action.” ROA.102. When Pando started at Lowe’s, store manager Johnny Paredes told her if she had any problems, “just talk to me, Sandra or Sabrina or Janie.”[1] ROA.80.

Pando alleges that soon after she began working at Lowe’s, a coworker named Raul (last name unknown) sexually harassed her until she resigned at the end of March 2014. ROA.144. Raul, who was a manager in the meat department, “wrote sexually explicit graffiti about [Pando] on [the men’s] bathroom wall in the store,” which stated, “that Raul . . . fucked all the cashiers and that he . . . would fuck Amelia in the ass.” ROA.38-39. Pando recounted that, “after writing the graffiti,” Raul “said he had something to show me. . . . I started walking. I didn’t want to.” ROA.40; ROA.144. When Raul led her to the men’s restroom and urged her to enter, she said, “No, I don’t want to go,” and repeated, “I’m not going in there.” ROA.40. Raul said he would leave the trashcan in the door to prop it open, assuring her, “It’s going to be okay.” Id. Raul escorted Pando into the bathroom and opened the door of a stall, telling her, “It’s in there.” ROA.41. Pando “still didn’t want to go.” Id. While they were in the bathroom, Raul “kind of pushed me” on the shoulder and “shoved me a little bit.” ROA.41, 46. Pando “read it right quickly.” ROA.41. Raul asked, “What do you think?” Id. Pando recalled that, “I didn’t like the way he looked at me.” ROA.41. “He liked it.” ROA.42.

Pando “walked fast out of there. And I told him this was not right. . . . I was just crying and going in front of the service desk, crying, walking up. I didn’t know what to do.” ROA.42. Sabrina, a manager, “was there with a little smile.” Id. Pando immediately told an assistant manager named Sandra and showed her the graffiti. ROA.42-44. Sandra “looked at me with a smile.” ROA.44. Pando also reported the graffiti to Paredes three days after Raul showed it to her. ROA.77. Paredes acknowledged that Sandra had told him about it. Id.

Pando also testified that Raul “made gestures toward me that I felt, after the incident in the bathroom, were meant by Raul to be sexually suggestive and harassing.” ROA.144. For example, Raul “would raise up his sleeves” “so I could see his arms . . . he was all built up,” and “he looked at me,” and would make “a gesture with his eyes.” ROA.55-56; ROA.144. Raul called Pando “mamacita” in a way that she perceived as flirtatious. ROA.145. Another time, Raul touched Pando’s back and told her there was more graffiti he wanted to show her. Id. On one occasion, Raul eavesdropped on a conversation Pando was having with a manager and another employee about her husband during which she mentioned how long she had been with her husband and her age. ROA.62-63; ROA.144-45. Raul “was standing outside the door,” then stuck “his head inside the door” and remarked that he was surprised that Pando was 50 years old, not 40. ROA.62-63; ROA.145. Pando thought this was inappropriate because “[h]e shouldn’t have been there” and his comment suggested that “[h]e thought I was closer to his age.” ROA.63.

When Pando passed by the customer service desk, Raul would “hug the girls there, like, Delana, Sandra. [H]e knew that I was going to pass by there . . . most of the time, he would be there when I was passing by there or going to the ladies room. [H]e knew I had to pass by there again. So when I came back, he was hugging [Delana, Janie, or Sabrina], and he would kiss her, like, on the cheek.” ROA.52. Pando acknowledged that it was “their thing,” but said “it made me feel uncomfortable” because “it made me feel like to see that it was okay what he’s doing, that maybe at some point he would do it to me,” and “that it would be okay for me to let him do that.” ROA.54-55.

Raul seemed to be watching Pando or near her whenever possible, although they did not work in the same area of the store. ROA.144-45. He “would often stand near my cash register watching me while I was working even though it wasn’t necessary for him to be there.” ROA.144. Raul would often stand by the Coke machine 10-12 feet away and stare at her when she was on her register. ROA.48-49. He was “just looking at me.” ROA.48. “Sometimes . . . I was with my customer, and I could see him peeking through one of the aisles, the last aisle. And he was just, looking at me.” ROA.48, 49. Pando’s husband, Socorro Pando, “saw Raul standing near my wife’s cash register watching her from behind” several times when he “happened to be in the store.” ROA.154.

Raul would come to Pando’s register when she needed a code to scan a sale item from the meat department even though he did not do so for other cashiers. ROA.58. “It seemed like he was doing it just so he could come,” given that he was the meat manager and “other people [were] working back there, [but] he was [the] only one that would be showing up for my register.” ROA.58, 60. Pando said it “made me feel that he always wanted to be where I was at . . . coming to my register.” ROA.60. Another time, Raul “came from nowhere” and hugged and kissed a customer at Pando’s register. ROA.57. And Raul followed Pando and an elderly customer Pando was helping and interjected himself into their conversation. ROA.66-67. Pando testified that Raul “was just stalking me. I know he was stalking me.” ROA.68. “Seems like when I was there, he was there.” Id. She tried to ignore Raul, but she “couldn’t, because he was always there.” ROA.78.

Raul also pursued her near her home. ROA.72-75. Pando saw Raul driving near her house once, and noticed his truck parked outside her house another time. ROA.72-73. On a third occasion, Pando returned home from an errand and Socorro informed her, “‘There goes Raul.’ I looked. It was him.” ROA.74.

Pando reported Raul’s harassment. Pando reported “the graffiti incident” and “made other reports before I quit to Mr. Paredes about Raul’s conduct.” ROA.145. Although Paredes “told me he would take care of it,” “nothing was done to stop Raul’s behavior towards me as the behavior continued and even got worse after I spoke to Mr. Paredes.” Id. Pando believed that “I could just tell him and he would take care of things, which he never did.” ROA.81. Additionally, Pando noted that “[assistant manager] Sandra was present and saw some of Raul’s conduct.” ROA.145.

Socorro told Pando to report Raul to the store manager but when she did so, she said that “Raul was still doing the same things and that it was getting worse.” ROA.154. Socorro, acting on Pando’s behalf, also “personally talked to Johnny Paredes, the store manager, at least three times, to report to him what Raul had been doing to Amelia, and to ask him to do something about it.” Id. He then called the company’s “corporate office human resources department to report Raul’s continued behavior.” Id. But “[n]othing seemed to change. . . .” Id.

On March 26, 2014, after Pando had worked at Lowe’s for two months, Raul physically attacked Pando’s husband. ROA.89-90; ROA.154-55; ROA.145. Pando met Socorro and their son in the Lowe’s parking lot during her afternoon break. ROA.89; ROA.154; ROA.145. Raul drove by them slowly in his truck “laughing and flipped us off . . . . He then parked in the employee parking [lot].” ROA.89; see also ROA.154; ROA.145. Pando returned to work. ROA.89; ROA.145; ROA.154-55. She learned that Raul followed her husband and son to a store across the street. ROA.89; ROA.69. As they were leaving, “they saw Raul coming really fast towards them as if he was going to hit them, so my husband pulled over, rolled down his window and yelled at Raul.” ROA.89; see also ROA.154-55. Raul got out of his car and punched Socorro in the face. ROA.155; ROA.89-90. Socorro was “knocked out unconscious.” ROA.90. He reported the attack to the police. ROA.155; ROA.90.

Pando quit the next day, on March 27, 2014, after unsuccessfully attempting to speak to Paredes, who was not at the store. ROA.70-71. Pando told Sandra that she was quitting because of Raul’s behavior. ROA.71; ROA.146. She believed working at Lowe’s was endangering her family. ROA.146. “By the time I quit, the situation with Raul had become quite dangerous as demonstrated by his attack on my husband.” Id. Pando explained that “since no action was taken against Raul after mine and my husband’s previous reports, I had no reason to believe Defendant was going to take action with regard to Raul’s attack against my husband,” and “I felt the risk of danger was too great.” Id.

Pando filed a charge of discrimination alleging sexual harassment and constructive discharge.[2] ROA.91. She later sued Lowe’s under Title VII alleging claims of hostile work environment and constructive discharge. ROA.4-7. Lowe’s moved for summary judgment, arguing that Pando failed to report the harassment, the incidents alleged do not rise to the level of unlawful discrimination, and Pando failed to exhaust her administrative remedies by not listing every incident of harassment in her EEOC charge. ROA.105-127.

B. District Court’s Decision

The district court granted Lowe’s motion for summary judgment. ROA.156. The district court began by rejecting Lowe’s argument that Pando’s claims were untimely and that she failed to exhaust her administrative remedies because she had not listed each harassing incident in her charge.[3] ROA.158-59. The court also rejected Lowe’s argument that it was entitled to summary judgment because Pando never complained about the harassment to the human resources department and the company therefore lacked notice of the harassment. ROA.159-60. The court pointed out that Pando “testified that she made multiple reports to the store manager and assistant manager that were ignored and never investigated” and that Pando’s husband testified that “he made at least three reports to the store manager and also personally called the company’s human resources department to make a report.” Id. Consequently, there is “a genuine issue of material fact as to whether Lowe’s knew about the alleged sexual harassment incidents and whether Lowe’s failed to take prompt remedial action prior to March 2014.” ROA.160.

But the court held that the conduct Pando alleged she was subjected to “was not sufficiently hostile and pervasive as to constitute a hostile work environment.” ROA.163. The court articulated Pando’s allegations as follows: “Raul (1) showed her sexually explicit graffiti on a bathroom wall that she inferred was written by him and further inferred was referencing her; (2) frequently hugged and kissed other women in the store in a way that made her feel uncomfortable; (3) showed off his arm muscles in front of her; (4) made some gestures that she believed were sexually suggestive and harassing; (5) went out of his way to be around her and frequently watched her during the work day from at least 10 to 15 feet away; (6) called her ‘mamacita’ and made other attempts to flirt with her during the work day; (7) touched her on the back of her shoulder on one occasion and in the middle of her back on another occasion; (8) told her on one occasion there was more graffiti he wanted to show her; and (9) stalked her outside of the store.” ROA.161.

The court ruled that Pando’s allegation that Raul attacked her husband “is not directly relevant to Pando’s hostile work environment claim against Lowe’s” because the altercation “occurred off of Lowe’s property at a time when Lowe’s was not exercising control over Raul, and Pando was not even present at the time.” ROA.161 n.4; see also ROA.161-62 (“Raul’s alleged conduct outside of work hours may give Pando valid claims against him under state law, but that conduct would not be relevant to her Title VII allegations because it did not occur at work.”).

The court opined that Pando’s other allegations were not specific enough. For example, the court noted, she failed to “describe the exact nature of the gestures or the frequency with which they were made.” ROA.161. Nor did Pando allege “objective evidence” that Raul was stalking her. Id. The court stated that Pando did not allege that Raul “ever attempted to make physical contact with her or violate her immediate personal space other than on the two occasions where he touched her on her middle or upper back, over her clothes.” Id. The court concluded that “Raul likely acted in an inappropriate manner towards Pando on at least a couple of occasions,” and his behavior could “objectively be considered ‘boorish and offensive,’” but that the conduct was not “so severe or extreme as to constitute a hostile work environment as a matter of law.” ROA.162. The court pointed out that Lowe’s investigation following Pando’s resignation failed to reveal other witnesses or complaints of harassment by Raul or other employees. Id.

Because the court determined the conduct alleged did not constitute a hostile work environment, it found her constructive discharge claim similarly precluded. ROA.163.

ARGUMENT

I. The District Court Erred in Ruling That No Reasonable Jury Could Find That Pando Was Subjected to Actionable Severe or Pervasive Harassment on the Basis of Her Sex.

Harassment based on sex violates Title VII when it is “‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); Harvill v. Westward Commc’n, LLC, 433 F.3d 428, 434 (5th Cir. 2005). Courts must look to the totality of the circumstances in determining whether harassment rises to the level of a hostile work environment, and factors to be considered include “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,” although “no single factor is required.” Harris, 510 U.S. at 23; see also Harvill, 433 F.3d at 434. Assessing the evidence of a hostile work environment requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target . . . [and it] often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998); see also Andrews v. City of Phila., 895 F.2d 1469, 1484 (3d Cir. 1990) (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”); Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (“This totality-of-circumstances examination should be viewed as the most basic tenet of the hostile-work-environment cause of action,” and “courts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility.”).

Viewed under the proper legal standard, the allegations in this case, if evaluated collectively and believed by a jury, describe an actionable hostile work environment. Raul’s written statement that he would “fuck Amelia in the ass,” his frequent sexually suggestive stares, innuendos, stalking, inappropriate touching, and final violent attack on Socorro would allow a jury to find that Pando was subjected to conduct that altered the terms and conditions of her employment because of her sex, as the conduct was sufficiently frequent, serious, humiliating, and threatening to affect Pando’s ability to perform her job.

Pando’s experience working at Lowe’s was bookended by two severe episodes of harassment beginning with Raul’s written pronouncement, which he brought Pando to see, that he was going to “fuck Amelia in the ass,” and ending with his attack of Pando’s husband near the Lowe’s where she worked. Additionally, in the weeks between these two incidents, Raul appeared so frequently near Pando that she believed that he was stalking her in the store, and he drove by her home multiple times. He expressed interest in her by calling her “mamacita,” showing her his arm muscles either to impress or frighten her, and by remarking on her age. Raul hugged and kissed other female employees when he knew Pando would be walking by, which made Pando feel that Lowe’s tolerated such behavior and would overlook it when he started doing it to her. Raul also stared at Pando from various locations in the store and interjected himself into Pando’s conversations with other Lowe’s employees and customers. This is sufficient to support a finding that the offensive acts were sufficiently severe or pervasive to alter Pando’s conditions of employment in violation of Title VII.

The district court failed to analyze the evidence in this case under the proper standard. First, the court wrongly excised two of Raul’s actions from consideration—his attack on Socorro and his driving by Pando’s home—because these acts did not occur inside Lowe’s. The court then improperly minimized and disaggregated the remaining instances of harassment and found each lacking instead of viewing them in context and as a whole.

Raul’s violent attack of Pando’s husband—in front of their son—was a serious, disturbing incident that was part of the pattern of harassment to which Pando was subjected. It was at this point that Pando believed she was in real danger. The district court refused to consider the attack on Socorro because it occurred away from Lowe’s, deeming it “not relevant.” ROA.162; ROA.161 n.4. The district court similarly discounted the import of Pando’s testimony that Raul drove near her home at least three times, opining that the out-of-work conduct might be the subject of a state law claim but was irrelevant to her Title VII claim. ROA.161-62.

The court erred. Harassment occurring outside the workplace can support a hostile work environment claim. To be sure, “Title VII is limited to employment discrimination, and therefore sexual harassment is actionable under the statute only when it affects the plaintiff’s conditions of employment.” Doe v. Oberweis Dairy, 456 F.3d 704, 715 (7th Cir. 2006) (citations omitted). Courts have ruled, however, that incidents that occurr away from the workplace can contribute to a hostile work environment where they are part of a pattern of harassment affecting a plaintiff’s terms and conditions of employment. See, e.g., Crowley v. L.L. Bean, 303 F.3d 387, 398, 409-10 (1st Cir. 2002) (plaintiff’s testimony that harasser followed her home and at work supported jury finding that she was subjected to severe or pervasive harassment). In Dowd v. United Steelworkers of America, for instance, the court of appeals determined that the union construed “‘working environment’ too narrowly” and held that “[t]he offensive conduct does not necessarily have to transpire at the workplace in order for a juror reasonably to conclude that it created a hostile working environment. We have upheld a jury verdict for a plaintiff in a sexual-harassment hostile-work-environment claim where the offensive conduct took place in a hotel, after hours, on a business trip.” 253 F.3d 1093, 1102 (8th Cir. 2001) (citation omitted). The district court thus erred in ruling that out-of-work conduct is always irrelevant to a Title VII hostile work environment claim.

A jury could find Raul’s attack on Pando’s husband and his driving by her home relevant here. These were episodes in an unwanted relationship that began and grew in the workplace, and were consistent with his behavior towards Pando at work, where he appeared near her in a way that caused her discomfort. Raul’s behavior targeting Pando and her husband away from Lowe’s is thus relevant to a jury’s understanding of how Pando was experiencing her workplace. “[W[hen an employee is forced to work for, or in close proximity to, someone who is harassing her outside the workplace, the employee may reasonably perceive the work environment to be hostile.” Duggins v. Steak 'N Shake, Inc., 3 F. App'x 302, 311 (6th Cir. 2001); see also Crowley, 303 F.3d at 409-10 (The harasser’s “intimidating behavior and hostile interactions with [the plaintiff] outside of work help explain why she was so frightened of [him] and why his constant presence around her at work created a hostile work environment.”); Temparali v. Rubin, No. CIV. A. 96-5382, 1997 WL 361019, at *3 (E.D. Pa. June 20, 1997) (“[A]n employee who is forced to work . . . in proximity to someone who is harassing her outside the workplace may reasonably perceive the work environment to be hostile as a result.”). Contrary to the district court’s conclusion, Raul’s out-of-work stalking and violent act were highly relevant in assessing the threat Raul posed to Pando and provide important context for viewing how Pando viewed his unwanted attention and the severity of the harassment.

The district court also impermissibly disaggregated and diminished the evidence of different types of offensive conduct, holding that each was insufficiently severe, and then concluded that the whole environment was therefore not actionable. Most significantly, the court glossed over the severity of the sexual graffiti, which, a jury could find, enhanced the severity of all of Raul’s conduct that followed. Pando’s recounting of Raul leading her into the men’s bathroom to show her graffiti he had written stating that he “fucked all the cashiers” and that he would “fuck Amelia in the ass” is evidence that may be understood as considerably more disturbing than the district court suggested. Raul led her in to the confined space of the men’s bathroom, despite her protests. He pushed her shoulder to encourage her to go closer to the offensive declaration, then, smiling, asked her what she thought of it. Pando cried and ran out of the bathroom. ROA.38-42, 46; ROA.144. A jury could find that the graffiti stating that Raul would “fuck Amelia in the ass” was, at best, sexual boasting or an unwanted sexual proposition and, at worst, a humiliating and intimidating threat of sexual assault.

The court downplayed the interaction by referring to the graffiti as merely “sexually explicit”—without acknowledging the graphic, humiliating, and threatening nature of it—and stated that Pando only “inferred” that Raul had written it about her. ROA.161. The graffitied statement contained her name, Raul insisted on bringing her to the men’s bathroom to show it to her “after writing the graffiti” (ROA.144), and Raul asked her what she thought of it while he looked at her in a way she “didn’t like.” ROA.144; ROA.41. Pando did not have to infer anything from this interaction, and the court’s suggestion otherwise fails to give the interaction the effect that it had on Pando – namely, that it caused her to run out of the bathroom “crying.”

Additionally, Raul later told Pando there was more graffiti he wanted to show her and touched her back. ROA.145. Although the court was dismissive of the evidence that Raul touched her on only two occasions “over her clothes” and on her back (ROA.161), a jury could deem both incidents severe. Raul first “shove[d]” Pando to push her closer to the graffitied statement in the men’s bathroom, and then touched her when he let her know he had more graffiti to show her. ROA.41; ROA.145. Pando could thus find Raul’s touching her a second time particularly unwelcome and infer that he had written more graffiti about having anal sex with her.

Similarly, a jury could find the various forms of unwanted attention Raul directed at Pando following the graffiti incident—the staring, the following, the flirting and innuendos—which the court characterized as “boorish,” substantially more humiliating or menacing than the court recognized when considered under the totality of the circumstances. The district court improperly ignored the context of Raul’s various forms of unwanted attention that followed after he brought Pando to the bathroom to show her the graffiti stating that he would “fuck [her] in the ass.”

A jury considering all of the circumstances could thus understand why conduct that might otherwise appear relatively benign made Pando feel uncomforatable. See Frazier v. Delco Elecs. Corp., 263 F.3d 663, 668 (7th Cir. 2001) (harasser’s earlier threat to physically harm the plaintiff “provides the essential context for appraising the gravity of the later acts of harassment”). For example, Raul’s comment that he thought Pando looked 40, not 50, which he learned from eavesdropping on her conversation with other employees, was not innocuous to her. ROA.63. This comment suggested that she was closer to his age which, in his mind, legitimized his interest in her. Pando recalled that Raul would approach her and roll up his sleeves and looked at her in a way that made her uncomfortable. ROA.55-56; ROA.144. After the assertion that he was going to “fuck Amelia in the ass,” Pando reasonably found this gesture frightening. Although Raul hugging and kissing Pando’s coworkers “was their thing,” she interpreted it to mean that he would hug and kiss her, and that such behavior would be tolerated at Lowe’s. ROA.54-55. See Oncale, 523 U.S. at 82 (“Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing . . . and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”).

The court also erred in discounting the stalking evidence. Contrary to the court’s characterization of Pando’s stalking allegations as just “her own suspicions,” and lacking “objective evidence” (ROA.161), Pando offered detailed testimony that would allow a jury to find Raul stalked her in the store and at home. See supra at 6-8. Socorro “saw Raul standing near my wife’s cash register watching her from behind” on several occasions. ROA.154. Raul “often” stood by the Coke machine near her register “looking at [her]” when he had no reason to do so and would peek out from a store aisle so he could stare at her. ROA.48-49. Raul passed by her register or approached as often as possible, such as coming to assist her with scanning problems when that was not his usual practice with other cashiers. ROA.58. Raul eavesdropped on Pando’s conversations and hugged and kissed other female employees when he knew Pando would see it. ROA.62-63. ROA.144-45. Raul “came from nowhere” to hug and kiss a customer at her register and interjected himself into her attempt to assist a customer. ROA.57, 66-67. Pando or her husband saw Raul’s truck near their home repeatedly. ROA.72-75. Raul drove by Pando while she was on break in the parking lot with Socorro and their son before the attack on Socorro, which suggests that he was monitoring her. Pando testified repeatedly that Raul “was always there.” ROA.78. Raul made her “feel that he always wanted to be where I was at . . . passing by my register.” ROA.60. “Seems like when I was there, he was there.” ROA.68. “I know he was stalking me.” Id. This evidence is sufficiently objective and detailed to allow a jury to find that Pando reasonably believed Raul was stalking her. See Frazier, 263 F.3d at 668 (term “stalking” when applied to “men harassing women by following them about” is properly defined as “to make your presence known to the victim”).

Such evidence, viewed with the whole of Raul’s unwanted attention and troubling behavior directed at Pando, is sufficient to allow a jury finding that Pando was subjected to an objectively hostile work environment sufficiently severe or pervasive to violate Title VII. See, e.g., Frazier, 263 F.3d at 665 (reversing dismissal of the plaintiff’s Title VII claim and rejecting the defendant’s argument that the harasser’s conduct was not sufficiently egregious where the harasser stared at the plaintiff and “haunted” her work area by unexpectedly appearing in her work area several times a day although he worked at the opposite end of the plant); Savino v. C.P. Hall Co., 988 F. Supp. 1171, 1187 (N.D. Ill. 1997) (harasser’s frequent staring and stalking on and off the job, along with other unwanted attention, “focus ominiously and specifially on a victim” and “were sufficiently severe to constitute a hostile working environment, such that it deprived [the plaintiff]—or a reasonable person in [her] position—of a ‘right to work in an environment free from discriminatory intimidation, ridicule and insult,’ thus materially altering the conditions of her employment.” (internal citation omitted)). The district court erred in concluding otherwise.

II. The District Court Erred in Ruling That No Reasonable Jury Could Find That Pando Was Constructively Discharged.

A jury could find that Pando was constructively discharged. To establish a claim for constructive discharge, a plaintiff must offer sufficient evidence that her “‘working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.’” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008) (stating same standard). Constructive discharge stemming from a hostile work environment “can be regarded as an aggravated case of . . . sexual harassment or hostile work environment,” and “entails something more” than a showing that a plaintiff was subjected to a hostile work environment: “A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Suders, 542 U.S. at 146-47.

In the district court’s view, because the harassment Pando recounted was not severe or pervasive, it could not support Pando’s claim that she was constructively discharged. ROA.163. However, there was sufficient evidence to support a jury finding that Pando was subjected to an actionable hostile work environment, as discussed above. Additionally, a jury could find the harassment was “aggravated” and would have compelled a reasonable person to quit. Raul’s violent attack of Pando’s husband Socorro, in particular, would allow a jury to find the conditions so intolerable that a reasonable person would feel forced to resign. Raul threatened to ram Socorro’s car with his truck and then knocked him unconscious, in front of Pando’s son. ROA.89-90; ROA.154-55. This violent behavior followed Raul’s past assertion that he would “fuck Amelia in the ass” and his stalking her both at work and at home. Raul’s threatening and violent behavior convinced Pando that “the risk of danger was too great.” ROA.146. A jury could find Pando’s belief reasonable that she and her family were in danger.

Moreover, although Pando and Socorro had both complained to Lowe’s assistant manager and the store manager, and Socorro called Lowe’s corporate headquarters about Raul’s treatment, no action was taken. Despite the intimidating and humiliating nature of the statement that Raul was going to “fuck Amelia in the ass,” Lowe’s management seemed to be unconcerned. When Pando reported the graffitied proposition to Sandra, she “looked at [Pando] with a smile” despite the fact that Pando was crying and had run out of the men’s bathroom in distress. ROA.44. Store manager Paredes did nothing after being informed by Sandra and Pando of the disturbing announcement. ROA.77, 81; ROA.145. Paredes also took no action to stop Raul from placing himself near Pando whenever he could. ROA.145.

Given Lowe’s utter lack of concern over Raul’s threatening conduct toward Pando, a jury could easily find that a reasonable person in Pando’s position would have felt compelled to quit. See Cortes v. Maxus Exploration Co., 977 F.2d 195, 200-01 (5th Cir. 1992) (holding district court did not err in finding a reasonable person in plaintiff’s shoes would have felt compelled to resign where plaintiff was temporarily transferred back to work directly with her harasser, who “was never bridled, let alone disciplined”); Ramirez v. City of Robstown, No. Civ. A. C-05-135, 2006 WL 470601, at *11 (S.D. Tex. Feb. 27, 2006) (jury could find that the plaintiff was compelled to resign where her harasser/rapist was not disciplined and the plaintiff “feared for her safety” if forced to work with him again). The court thus erred in granting summary judgment on Pando’s constructive discharge claim.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

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s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: July 21, 2017

[1] Sandra was an assistant manager and Sabrina was a “front end” manager. ROA.42-43; ROA.55. It is unclear from the record what Janie’s position was.

[2] As Lowe’s pointed out in its summary judgment briefing (ROA.120 n.45), the Commission issued a preliminary determination to dismiss Pando’s charge of discrimination. ROA.92-93. The letter stated that “the evidence does not indicate harassment that was severe or pervasive enough to create a hostile work environment in which a reasonable person would feel compelled to resign.” ROA.92. This preliminary determination was made by an investigator before discovery and development of the record. For this reason, it should not affect the de novo assessment of the summary judgment record. See generally Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002) (EEOC dismissal of charge has no legal consequences).

[3] The court correctly rejected the defendant’s argument that Pando failed to exhaust her administrative remedies. There is no requirement that a plaintiff recite all of the relevant facts in a charge. The EEOC’s regulation states that “[e]ach charge should contain . . . [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). The regulation further provides, however, that “[n]otwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b) (emphasis added). Pando’s charge satisfied this standard.