A. Parker’s complaint alleges facts that are sufficient to support a plausible claim of hostile work environment. 14

1. Parker’s complaint plausibly alleges that the harassment she suffered was because of sex. 15

2. Parker’s complaint plausibly alleges that the harassment was sufficiently severe or pervasive to violate Title VII. 21

B. Parker’s complaint alleges a plausible claim for retaliation, including that she engaged in protected activity. 25

C. Parker’s complaint properly alleges a plausible claim that she was terminated because of her sex. 29

CONCLUSION.. 34

CERTIFICATE OF COMPLIANCE. 36

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Allen v. TV One, LLC, No. 15-1960, 2016 WL 337533 (D. Md. Jan. 28, 2016) 33

Ashcroft v. Iqbal, 556 U.S. 662 (2009)......................................................... 13, 14

Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003)............... 14

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)......................................... 13, 14

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015).................. 25

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)........ 30

Coleman v. Md. Court of Appeals, 626 F.3d 187 (4th Cir. 2010)....................... 14

DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015).............................. 25

Dube v. Hadco Corp., No. 87-554, 1999 WL 1210885 (D.N.H. Feb. 4, 1999)... 28

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)................... 15

EEOC v. Commercial Office Prods. Co., 486 U.S. 107 (1998)............................ 30

EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320 (4th Cir. 2010)........... 23, 24

EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)...................... 25

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)................................................. 29, 31

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)...................... 15, 21

Erickson v. Pardus, 551 U.S. 89 (2007)............................................................. 16

Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277 (11th Cir. 2004).............. 32

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)..................................... 15, 21, 24

Jew v. Univ. of Iowa, 749 F. Supp. 246 (S.D. Iowa 1990)................................. 28

McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582 (4th Cir. 2015)........... 16

McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996)................................... 17, 28

Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005)......................................... 29, 33

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)......................... 15

Pasqua v. Metro. Life Ins. Co., 101 F.3d 514 (7th Cir. 1996)............................. 28

Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000)............. 15, 21, 34

Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994)....................................... 18-19, 28

Sydnor v. Fairfax Cty., 681 F.3d 591 (4th Cir. 2012)................................. 33, 34

United States v. Mead Corp., 533 U.S. 218 (2001)............................................ 30

Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008)........................................... 21, 23

Statutes, Regulations & Rules

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

42 U.S.C. § 2000e–2(m).................................................................................. 16

42 U.S.C. § 2000e-3(a).................................................................................... 25

42 U.S.C. § 2000e-5(b).................................................................................... 29

42 U.S.C. § 2000e-5(f)(1)................................................................................. 29

42 U.S.C. § 2000e-12(a)............................................................................. 29, 31

29 C.F.R. § 1601.12.................................................................................... 30, 31

Fed. R. Civ. P. 8(a)(2)..................................................................................... 13

Fed. R. Civ. P. 12(b)(6)................................................................................. 1, 9

Fed. R. App. P. 29............................................................................................ 2

Other Authorities

Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Harassment & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581 (2016)............... 17

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. Here, the plaintiff’s complaint alleged that a male coworker started a rumor that she had received a promotion because she was engaged in a sexual relationship with the supervisor who promoted her. Coworkers and subordinates treated her with open hostility and disrespect as a result, and the head of the facility blamed her for the rumors, berated and screamed at her, and fired her three weeks after she filed an internal harassment complaint. Despite these allegations, the district court dismissed the plaintiff’s complaint under Rule 12(b)(6), holding that it failed to state plausible claims of discrimination or retaliation under Title VII. The EEOC has a strong interest in ensuring that plaintiffs are not precluded from vindicating their statutory rights in federal court by the premature and incorrect dismissal of complaints of employment discrimination. We therefore offer our views to the Court pursuant to Federal Rule of Appellate Procedure 29(a).

STATEMENT OF THE ISSUES

1. Whether Parker’s complaint stated a plausible hostile work environment claim where she alleged that male employees spread a false rumor that she had been promoted because she engaged in a sexual relationship with a supervisor and her co-workers and a supervisor subsequently harassed her because of the rumor.

2. Whether Parker’s complaint stated a plausible retaliation claim where she alleged she was fired three weeks after she filed an internal sexual harassment complaint naming the manager who later fired her.

3. Whether Parker exhausted her administrative remedies as to her termination claim where her charge of discrimination fully comported with EEOC regulations by describing generally her allegation of a termination discriminatorily based on sex and her complaint merely added additional facts concerning the discharge.

STATEMENT OF THE CASE

A. Statement of Facts [1]

Evangeline Parker worked for Reema Consulting Services, Inc. (RCSI) as a clerk in its Sterling, Virginia warehouse beginning in December 2014. Joint Appendix (JA)-8 ¶ 7. RCSI promoted Parker six times, and she ultimately landed the position of Assistant Operations Manager on March 1, 2016, only fifteen months after she had started with the company. JA-8 ¶ 9. Parker “was one of [the] few female employees who had reached the managerial level in several years.” JA-8 ¶ 11.

Soon after her promotion to Assistant Operations Manager, Parker learned that male RCSI employees were circulating a rumor that she had received the promotion because she was engaged in a sexual relationship with Deputy Program Manager Damarcus Pickett. JA-8 ¶ 12. Pickett and another witness, former employee Romaine Thompson, told Parker that Donte Jennings initiated the rumor. JA-9 ¶ 13. Jennings started as a clerk around the same time as Parker, but did not advance as quickly in the company. JA-9 ¶ 14. Male employees at various levels repeated the rumor, including the highest-level manager at the facility, Program Manager Larry Moppins. JA-8-9 ¶¶ 12-15. Pickett recounted to Parker that Moppins asked him on one occasion: “[Y]ou sure your wife ain’t divorcing you because you’re fucking [Parker]?” JA-9 ¶ 16.

Parker’s coworkers and subordinate employees were openly hostile and disrespectful to her after the rumor circulated. JA-9 ¶ 17. She confronted Jennings and requested that he speak to her directly about any of her conduct. JA-9 ¶ 18. She met with other employees to assure them the rumors were false. Id.

Moppins convened a mandatory staff meeting on April 21, 2016. JA-10 ¶ 19. When Parker arrived along with Pickett, Moppins admitted Pickett into the room but slammed the door in Parker’s face and locked her out of the meeting. JA-10 ¶ 20. Not only was Parker humiliated in front of her co-workers, she learned that the rumor was discussed at the meeting and she was unable to defend herself. JA-10 ¶¶ 21-22.

Parker asked to meet with Moppins the following day to discuss the rumor. JA-10 ¶ 23. Moppins blamed her for “bringing the situation to the workplace.” JA-10 ¶ 24. He stated that, although he had “great things” planned for her at RCSI, “he could no longer recommend her for promotions or higher-level tasks because of the rumor.” Id. He added that “he would not allow her to advance any further within the company.” Id. Parker responded that the rumor was false and had been started by a coworker jealous of her success. JA-10 ¶ 25. But Moppins did not want to listen to her explanation. Id. Moppins’s “harsh comments and failure to listen to Ms. Parker’s side of the story not only aggravated the hostile work environment to which she was subjected, but put her in fear of losing her job.” JA-11 ¶ 26.

Parker met with Moppins and Pickett several days later. JA-11 ¶ 27. Moppins again blamed Parker for the disruption the rumor was causing and said he “should have fired her the day before when she came in ‘huffing and puffing about this BS rumor.’” Id. Moppins “lost his temper and began screaming at” Parker and told her, “don’t let this happen again.” Id. Parker understood at that point that Moppins “had no intention of fairly and appropriately handling the issues caused by the rumor or disciplining any of the employees who were perpetuating the rumor.” JA-11 ¶ 28.

Consequently, after the meeting with Moppins, Parker filed an internal sexual harassment complaint against Moppins and Jennings with Human Resources Manager Cathy Price on April 25, 2016. JA-11 ¶ 28. At a meeting that Price arranged two days later with Parker, Moppins, and Pickett, Price urged the three managers to apologize to each other and move on. JA-11 ¶ 29. Price assured Parker that she was not in danger of losing her job. Id.

While Parker was on vacation from May 11 to 16, Jennings (who had started the rumor), submitted an internal complaint accusing Parker of subjecting him to a hostile work environment through “inappropriate” conduct. JA-11 ¶¶ 30-31. When Parker returned to the office on May 17, another employee told her to have no contact with Jennings. JA-11-12 ¶ 31. RCSI did not allow Parker to review or respond to his complaint. Id. She later learned the specifics of his accusations and informed Moppins they were untrue. Id. No witnesses corroborated Jennings’s allegations. Id.

Parker avoided contact with Jennings, as instructed. JA-12 ¶ 33. Jennings, who had not been directed to avoid Parker after Parker filed her sexual harassment complaint naming him as a harasser, was “permitted by his supervisors to spend time in Ms. Parker’s work area conversing with employees under her supervision during working hours and distracting them from their duties.” Id. On these occasions, Jennings “directed long stares” at Parker and “smirked and laughed at her.” Id. Parker complained about Jennings’s taunts to a supervisor and to the Human Resources department, but “neither resolved the situation.” JA-12 ¶ 34.

On May 18, three weeks after Parker filed her internal complaint against Jennings and Moppins, she was called to a meeting with Moppins, Price, and RCSI’s in-house counsel. JA-12 ¶ 35. Moppins gave Parker two written warnings—one stemming from Jennings’s allegations and one for “poor management ability and insubordination.” JA-12 ¶¶ 36-37. He then fired her. JA-12 ¶ 36.

Parker had not received any prior warnings. JA-12 ¶ 37. RCSI has a “three-strikes” policy in which employees may be terminated after three written warnings. JA-13 ¶ 39. RCSI typically did not fire male employees after three writing warnings but fired some female employees without three warnings or where all three warnings were issued at the same time. Id.

On August 24, 2016, Parker filed a charge of discrimination with the EEOC. JA-37; see also JA-13 ¶ 42. Her charge, which is attached to RCSI’s motion to dismiss, contains checked boxes for discrimination based on “sex” and “retaliation” and alleges:

I have been subjected to different terms and conditions of employment by the . . . Respondent. For example, on or about March 2016[,] a rumor was started regarding an intimate relation I was allegedly having with Damarcus Pickett. . . . Management interview[ed] other employees regarding the allege[d] rumor. The rumor and/or comments were sexual in nature. As a member of the management team, such rumor[s] and/or comments were hindering my job environment and performance. On April 25, 2016, I made a formal complaint to Cathy Price [HR Manager] and informed her of the situation that was taking place. . . . Ms. Price had a meeting with me, Mr. Moppins . . . , and Damarcus Pickett . . . regarding her findings. Apologies were made to one [another] and I felt the situation would die itself down. On May 2, 2016, all employees were required to go through sexual harassment training, starting with Managers and Supervisors. Around the same week of the training, Mr. Moppins started to remove individuals that were directly assigned to me and my department, without my prior knowledge. Subsequently, I went out on personal leave. . . . Upon my return[,] I was informed . . . that I was not allowed to be near the work location of Mr. Jennings. . . . Mr. Jennings alleges that I was harassing [him] and making him uncomfortable. Yet . . . he proceeds to come to my area and distract my employees. I inform[ed] Ms. Price via email of what had just taken place. The next day on May 18, 2016, I [was] terminated.

I believe I have been discriminated, retaliated, and discharged due to my sex [Female] and participation in a protected activity, in violation of Title VII.

JA-37-38.

Parker sued RCSI, alleging she was subjected to a sexually hostile work environment, terminated in retaliation for complaining about the hostile work environment, and terminated because of her sex in violation of Title VII. JA-13-14 at pp. 8-9. RCSI moved to dismiss the complaint under Rule 12(b)(6), arguing that any hostile work environment arising from the rumors that she had received a promotion to manager because of sexual favors with a supervisor was not because of sex and instead was “based on her conduct.” JA-23-27. The company also argued that the facts alleged fall short of describing activity that is severe or pervasive enough to violate Title VII. JA-27-29. RCSI also argued Parker’s retaliation claim should be dismissed because she did not have a reasonable belief that she was opposing conduct made unlawful by Title VII. JA-30-33. Finally, RCSI argued Parker’s discriminatory termination claim is barred because her charge was insufficiently detailed—that is, it did not discuss RCSI’s disparate application of its “three-strikes” disciplinary policy. Id. at 33-35.

B. District Court’s Decision

The district court granted RCSI’s motion to dismiss from the bench. The court dismissed Parker’s hostile work environment claim because “her complaint as to the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.” JA-149 (Hearing Transcript). “[T]his same type of a rumor could be made in a variety of other context[s] involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to a promotion. But the rumor and the spreading of that kind of rumor is based upon conduct, not gender.” Id. The court added that, even if Parker could satisfy the requirement that the harassment was because of her gender, she “also failed to allege that it was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” JA-150. Although Parker alleged the harassment was frequent, “the temporal element here is very short in terms of how long this rumor was in circulation. Just a matter of a few weeks. And a few slights that she’s referenced here do not rise up to the level that would suffice for it being severe and [pervasive].” Id.

The district court dismissed Parker’s retaliation claim after concluding Parker’s belief that she was opposing unlawful harassment was not objectively reasonable. The district court maintained that, “I have concluded rightly or wrongly that what took place in this case with respect to the circulation of a rumor does not amount to gender discrimination such that a harassment claim can survive.” JA-151. Here, instead of gender-based discrimination, Parker was subjected to “conduct based rumor mongering . . . and it could apply without regard to gender as had happened in other cases I have had before me.” JA-152. “[B]ecause the complaint fails to establish that the matters alleged in Count One [hostile work environment] were discriminatory, [Parker] had failed to establish, therefore, that her belief was objectively reasonable and, therefore, she cannot establish a prima facie case of retaliation.” Id.

Although the district court purported to give Parker’s charge of discrimination “a very generous reading as to what it is that she’s complaining about” because it was not prepared by a lawyer, the court dismissed her discriminatory termination claim for failure to exhaust administrative remedies. JA-147. The court ruled that the charge was “entirely premised upon the alleged false rumor of her having a relationship with a person who brought about her promotion,” and the charge does not allege any gender-discriminatory application of RCSI’s three-strikes disciplinary policy. Id.

The district court denied Parker’s motion for reconsideration. JA-196. The court also denied Parker leave to amend her complaint because “the proposed amendments” “add no new facts to support her claims,” “only flawed legal conclusions reiterating the same arguments, already rejected.” JA-195-96.

ARGUMENT

The district court misapplied the governing legal standards when it dismissed Parker’s complaint for failure to state a claim.

Parker’s complaint contained sufficient allegations to raise plausible claims for relief under Title VII. The district court’s oral rulings, which do not mention the standards for granting a motion to dismiss, should be reversed.

Under Federal Rule of Civil Procedure 8(a)(2), a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court in Bell Atlantic Corporation v. Twombly explained that to survive a motion to dismiss for failure to state a claim, a complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .” 550 U.S. 544, 555 (2007) (internal quotation marks omitted). In Ashcroft v. Iqbal, the Court elaborated that the complaint must “contain sufficient factual material, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); see also Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (To survive a motion to dismiss, a plaintiff must “assert facts establishing the plausibility” of the discrimination allegation.). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Here, Parker’s complaint satisfies the plausibility standard.

A. Parker’s complaint alleges facts that are sufficient to support a plausible claim of hostile work environment.

“While a plaintiff is not charged with pleading facts sufficient to prove her case, as an evidentiary matter, in her complaint, a plaintiff is required to allege facts that support a claim for relief. The words ‘hostile work environment’ are not talismanic, for they are but a legal conclusion; it is the alleged facts supporting those words, construed liberally, which are the proper focus at the motion to dismiss stage.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). To establish a claim for a hostile work environment under Title VII, a plaintiff must show that the harassment was: (1) unwelcome; (2) based on her gender; (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the employer. Id.; see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 313-14 (4th Cir. 2008) (same). Only the second and third elements are at issue in this appeal.

1. Parker’s complaint plausibly alleges that the harassment she suffered was because of sex.

Parker’s complaint contains factual assertions sufficient to allege a plausible claim that she was subjected to a hostile work environment because of her sex. Harassment is “because of sex” if “‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). A plaintiff who shows that “but for” her gender she would not have been the victim of discrimination has shown discrimination is because of sex. Smith v. First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir. 2000); see also EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015) (Title VII “prohibit[s] even making a protected characteristic a ‘motivating factor’ in an employment decision.”) (quoting 42 U.S.C. § 2000e–2(m)).

The district court erred in holding that the harassment Parker alleged was “based on conduct, not gender.” JA-149. The court focused narrowly on the circulation of the false rumor that Parker was engaged in a sexual relationship with Pickett and erroneously failed to recognize that the rumor itself was gender-based. The court also ignored the allegations in the complaint that plausibly show that the harassment stemming from the rumor was due to her gender. In failing to accept that it was at least plausible the rumor was initiated and circulated because of Parker’s gender, the court failed to accept Parker’s factual allegations as true. See McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 589 (4th Cir. 2015) (Supreme Court has not “abandoned the longstanding requirement that judges ‘accept as true all of the factual allegations contained in the complaint’”) (Wynn, J., dissenting in part) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

Parker’s complaint alleges that soon after she was promoted to manager, male employees circulated a rumor that she received the promotion because she was engaged in a sexual relationship with the man who promoted her. The complaint also alleges that a male employee who had joined RCSI at the same time as Parker started the rumor, and that other men repeated it, including the head of the Sterling facility. There is nothing gender-neutral about the circulation of a rumor by male employees that Parker’s “sleeping her way to the top” explained her promotion. As the Seventh Circuit explained in McDonnell v. Cisneros, 84 F.3d 256, 259-60 (7th Cir. 1996), “Unfounded accusations that a woman worker is a ‘whore,’ a siren, carrying on with her coworkers, a Circe, ‘sleeping her way to the top,’ and so forth are capable of making the workplace unbearable for the woman verbally so harassed, and since these are accusations based on the fact that she is a woman, they could constitute a form of sexual harassment.” See also Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581, 599 (2016) (“Workplace rumors about a woman’s actual or perceived sexual promiscuity qualify as ‘because of’ sex because they are gender-based insults.”)

This case is comparable to Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994). In Spain, the plaintiff presented evidence that she was subjected to a sexually hostile work environment in the form of her colleagues spreading the rumor that she was engaged in a sexual relationship with the head of the office where she worked and that she had gained influence over him because of the relationship. This led her coworkers to ostracize her. The court of appeals found that the “because of sex” element was met because “the crux of the rumors and their impact upon Spain is that Spain, a female, subordinate employee, had a sexual relationship with her male superior.” 26 F.3d at 448. Because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and co-workers to treat women in the workplace differently from men,” the court held that a reasonable jury could conclude that the plaintiff suffered the harassment alleged because she was a woman. Id. Additionally, the Spain court emphasized that the harassment resulted from the rumors that she was having an affair with a supervisor, “[t]hus the harassment directed against her as a woman had a sexual orientation by its very nature.” Id. at 449. Spain therefore supports the conclusion that Parker’s complaint plausibly alleges that the harassment via the rumor and other behavior stemming from the rumor was because of her sex.

That Pickett, who promoted Parker, was also named in the rumor does not diminish the plausibility that Parker was subjected to harassment because of her gender. Parker experienced animosity disproportionate to that experienced by Pickett. Pickett was not subjected to the open resentment and disrespect that Parker alleged she experienced after the rumor spread. Moppins admitted Pickett into the full staff meeting from which Parker was locked out. Moppins did not blame, berate, scream at, and fire Pickett, as he did to Parker. Moreover, Pickett’s competency at RCSI was not questioned, as was Parker’s via the male employees’ dissemination of the rumor, which perpetuated the notion that it was Parker’s sexual favors, not her competency as an employee, which led to her promotion. Accordingly, the complaint plausibly pleads facts supporting the inference the harassment was based on Parker’s sex, as only she was targeted for mistreatment because of the rumor.

Parker’s complaint contains additional facts that make it plausible that but for Parker’s sex, she would not have been subjected to the rumor, harassment, and subsequent termination. The complaint alleges that male employees spread the rumor. No one at RCSI told them to stop or disciplined them. According to the complaint, Parker was instructed to avoid contact with Jennings after he filed a meritless harassment complaint against her, while Jennings was permitted to loiter in Parker’s work area conversing with her employees and staring, smirking, and laughing at her. The court ignored these allegations of disparate treatment that strongly indicate Parker was harassed because of her sex. The complaint additionally alleges that few women had risen to management level in the company in recent years. Taken as true and assessed collectively, the factual allegations in the complaint raise a reasonable inference that the alleged harassment occurred because of Parker’s sex.

2. Parker’s complaint plausibly alleges that the harassment was sufficiently severe or pervasive to violate Title VII.

The district court erred in concluding that Parker’s complaint offered insufficient facts to show that the harassment was severe or pervasive. There are subjective and objective components to the severe or pervasive inquiry. “The environment must be perceived by the victim as hostile or abusive and that perception must be reasonable.” Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008). In determining whether offending conduct was sufficiently severe or pervasive, courts consider “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.” Sunbelt Rentals, 521 F.3d at 315 (citing Harris, 510 U.S. at 23 (internal quotations omitted)); Smith, 202 F.3d at 242 (same).

Once again, the district court nowhere referenced the plausibility standard governing a motion to dismiss, and instead focused narrowly on Parker’s allegation regarding the circulation of the rumor. The court noted that Parker alleged that the harassment stemming from the rumor “was frequent,” but said that “the temporal element here is very short in terms of how long this rumor was in circulation. Just a matter of a few weeks.” JA-150. The district court also maintained that, “a few slights that she’s referenced here do not rise up to the level that would suffice for it being severe and pervasive.” Id. (emphasis added). The correct standard, however, is severe or pervasive, as the court noted elsewhere in its ruling. Compare JA-148, JA-150 (“severe or pervasive”) with JA-150 (“severe and per[vasive]”).

In any event, the district court overlooked factual allegations that go to the severity or pervasiveness of the work environment Parker experienced after the rumor spread. Parker alleged that because of the rumor, her workplace became increasingly hostile. She was treated with open resentment and disrespect from coworkers, including employees that she was newly responsible for supervising. Jennings lingered in her work area staring, smirking, and laughing at her with impunity. These assertions suggest Parker was subjected to frequent harassment in the weeks between the rumor’s circulation and her termination approximately three months later.

It is at least plausible that the harassment was also severe. When evaluating the context in which harassment takes place, the Fourth Circuit has “often focused on the ‘disparity in power between the harasser and the victim.’” EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010) (quoting Ziskie, 547 F.3d at 227). Parker learned that Moppins, who oversaw the Sterling facility, asked Pickett: “[Y]ou sure your wife ain’t divorcing you because you’re fucking [Parker]?” Moppins physically blocked Parker from entering a staff meeting while admitting Pickett, slammed the door in her face and locked her out, all in front of her co-workers. Parker alleges she was, understandably, humiliated, and that she was prevented from defending herself when the rumor was discussed at the meeting. Parker’s complaint alleges that Moppins blamed her for the workplace disruptions the rumor was causing, screamed at her, and told her he would no longer recommend her for further promotions or advancement opportunities, threatening her livelihood. That Moppins was the highest-ranking manager at the facility made his behavior more severe.

Parker’s efforts to clear her name were all unsuccessful. Instead, Moppins placed the blame for the distraction that the rumor was causing on Parker and took no action to stop the rumor or discipline anyone repeating the rumor—he instead perpetuated it. When Parker went on vacation, Jennings lodged an unfounded harassment claim against her. The employees she supervised were hostile and disrespectful to her. It is highly plausible that the entirety of this offensive conduct made her job more difficult to perform. See Harris, 510 U.S. at 25 (“It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to “ma[k]e it more difficult to do the job.”) (Ginsburg, J., concurring); see also Fairbrook Med. Clinic, 609 F.3d at 330 (critical inquiry is not whether work has been impaired but whether working conditions have been discriminatorily altered). Accordingly, Parker’s complaint contains sufficient facts to state a plausible claim that she was subjected to harassment that was sufficiently severe or pervasive to alter the terms and conditions of her employment and violate Title VII.

B. Parker’s complaint alleges a plausible claim for retaliation, including that she engaged in protected activity.

Parker’s complaint states a plausible claim of retaliation. A plaintiff alleging retaliation ultimately must establish: (1) that she engaged in a protected activity; (2) that her employer took an adverse action against her; and (3) there was a causal link between the protected activity and the adverse action. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc). Title VII prohibits retaliation against an employee who “has opposed any practice made an unlawful employment practice” under the statute. 42 U.S.C. § 2000e-3(a). Protected oppositional activities include “complaints about suspected violations.” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (citation omitted). Although oppositional activity must be directed to “an unlawful employment practice,” the Fourth Circuit interprets “unlawful employment practice” broadly. DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (citing Boyer-Liberto, 796 F.3d at 282). “[A]n employee is protected when she opposes not only . . . employment actions actually unlawful under Title VII but also employment actions [she] reasonably believes to be unlawful, and the Title VII violation to which the oppositional communication is directed may be complete, or it may be in progress.” Id. (internal citations omitted).

Parker’s complaint states a plausible claim that she was opposing unlawful conduct, or at a minimum, that she had an objectively reasonable belief that the harassment was unlawful. She alleges that she learned of the rumor circulating that she was engaged in a sexual relationship with Pickett two weeks after she was promoted to Assistant Operations Manager. After she was unsuccessful at convincing her coworkers the rumor was false, she complained to Moppins on April 22 and 25. Moppins refused to accept her explanation that her former male coworker started the rumor out of jealousy, berated and blamed her for the disruption the rumor was causing, and told her he would no longer allow her to advance at RCSI. Once Parker realized that Moppins would do nothing to stop the rumor, she filed an internal sexual harassment complaint with Human Resources on April 25, naming Jennings and Moppins as the harassers. Moppins fired her on May 18, approximately three weeks later.

Parker’s complaint states sufficient facts to make it plausible that she had an objectively reasonable belief that she was opposing conduct that violated Title VII, or opposing a violation that was in progress. In dismissing Parker’s retaliation claim, the district court failed to assess whether Parker’s belief that she was opposing unlawful conduct by complaining about the rumor and accompanying harassment was reasonable. Instead, the court ruled her belief could not be objectively reasonable because the court had concluded “rightly or wrongly,” that “the circulation of a rumor does not amount to gender discrimination such that a harassment claim can survive.” JA-151.

The court applied the wrong legal standard. Its dismissal of Parker’s hostile work environment claim does not compel a ruling that Parker’s belief she was opposing unlawful harassment was objectively unreasonable. “The two types of claim, harassment (or other employment discrimination) and retaliation for complaining about or opposing the harassment, are independent. It is improper to retaliate for the filing of a claim of violation of Title VII even if the claim does not have merit—provided it is not completely groundless.” McDonnell, 84 F.3d at 259 (emphasis added).

The court suggested that rumors like the one here can never be harassment because of sex. But courts have found otherwise, making it at least reasonable for Parker to believe that her sexual harassment complaint was not groundless. “Most decisions examining . . . [t]he question of whether, and to what extent, an employer is responsible for failing to stop sexual rumors . . . have indicated that rumors can create a hostile work environment.” Dube v. Hadco Corp., No. 87-554, 1999 WL 1210885, at *5 (D.N.H. Feb. 4, 1999) (citing Pasqua v. Metro. Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996); Spain, 26 F.3d at 451; and Jew v. Univ. of Iowa, 749 F. Supp. 946, 958 (S.D. Iowa 1999)); see also McDonnell, 84 F.3d at 259-60. The court thus erred in dismissing Parker’s retaliation claim because, in the court’s view, her discrimination claim lacked merit. As pled, the harassment claim is meritorious; at a minimum, the complaint plausibly alleges that Parker reasonably believed she was opposing an unlawful employment practice, or a violation that was in progress.

C. Parker’s complaint properly alleges a plausible claim that she was terminated because of her sex.

The district court erred in dismissing Parker’s discriminatory discharge claim for failure to exhaust administrative remedies. A Title VII plaintiff must file a charge with the EEOC before filing suit in federal court. Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005); see also 42 U.S.C. §§ 2000e-5(b), (f)(1). The purpose is to give the employer notice of the alleged violations and allow the EEOC to investigate and resolve the charge if possible. Miles, 429 F.3d at 491.

Title VII “prescribes only minimal requirements pertaining to the form and content of charges of discrimination.” EEOC v. Shell Oil Co., 466 U.S. 54, 67 (1984). Rather, Congress expressly left the details to the EEOC, stating: “Charges . . . shall contain such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e-5(b). To this end, Congress directed the EEOC to promulgate procedural regulations to implement Title VII. See 42 U.S.C. § 2000e-12(a). The EEOC’s procedural regulation is subject to Chevron deference in which “considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Consequently, the Commission's procedural regulation is binding because it is not “procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001); see also EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 125 (1998) (O'Connor, J., concurring) (deference to EEOC is “particularly appropriate” where regulation involves a “technical issue of agency procedure”).

The EEOC’s regulation, 29 C.F.R. § 1601.12, indicates the level of detail a charge should contain. As relevant here, that provision first states that “[e]ach charge should contain . . . [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” Id. § 1601.12(a)(3). The regulation further provides 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.” Id. § 1601.12(b) (emphasis added). See also Shell Oil, 466 U.S. at 62 n.11 (observing that Title VII does not require individuals to set out detailed facts in their charges).

Parker satisfied this administrative prerequisite by filing a charge alleging sex discrimination and retaliation with the EEOC. Her charge states that she has “been subjected to different terms and conditions of employment” by RCSI. JA-37. She alleges that the rumor “regarding an intimate relation” with Pickett and comments about the rumor “were sexual in nature” and “were hindering my job environment and performance.” Id. She explains in her charge that her complaints to Human Resources about the rumor and about Jennings positioning himself near her work area ultimately led to her termination. JA-37-38. The charge concludes, “I believe I have been discriminated, retaliated, and discharged due to my sex [Female] and participation in a protected activity, in violation of Title VII.” JA-38 (emphasis added). These allegations gave RCSI sufficient notice of her allegations, would allow the EEOC to investigate, and allow her to proceed with her judicial allegation that she was fired because of her sex following her efforts to address the rumor that she had earned a promotion by sleeping with a supervisor.

In her complaint, Parker amplified that claim with additional details that RCSI had a “three-strikes” disciplinary policy that the company applied more harshly to women employees. The district court ruled, again without referencing any authority, that Parker’s termination claim was barred because there is nothing in her EEOC charge about RCSI’s practice of applying its three-strikes policy more harshly to women. The court erred because the allegations stated in the charge and complaint articulate the same claim—that RCSI fired Parker because of her sex. All Parker’s complaint does is add detail to the general description contained in her charge. Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (Judicial claims are allowed if they “amplify, clarify, or more clearly focus” the allegations in the EEOC charge.).

Even if the claim in Parker’s complaint were somewhat different than the allegations made in her charge, she still exhausted her administrative remedies. The scope of a Title VII action is not limited to the discrimination expressly alleged in the EEOC charge. Rather, “[t]he touchstone for exhaustion is whether plaintiff’s administrative and judicial claims are ‘reasonably related.’” Sydnor v. Fairfax Cty., 681 F.3d 591, 595 (4th Cir. 2012); see also Allen v. TV One, LLC, No. 15-1960, 2016 WL 337533, at * 5 (D. Md. Jan. 28, 2016) (“Although the EEOC charge defines the scope of the right to file a subsequent civil suit, the initial administrative complaint does not create strict, unbendable limits on those subsequent rights.”). Thus an “administrative charge of discrimination does not strictly limit a Title VII suit which may follow.” Miles, 429 F.3d at 491 (citation omitted).

Parker exhausted her administrative remedies under this “reasonably related” standard, as both her charge and complaint allege discriminatory termination based on sex, and the complaint’s additional factual allegations as to the three-strikes policy are reasonably related to the charge’s allegation that RCSI “discharged [her] due to [her] sex.” See, e.g., Smith, 202 F.3d at 248 (finding exhaustion where charge and complaint both alleged retaliation because of the plaintiff’s complaints about sexual harassment but alleged different retaliatory actions); Sydnor, 681 F.3d at 594-95 (exhaustion found where plaintiff alleged in her charge and complaint that she was discriminated against based on her disability by being denied a reasonable accommodation but alleged different accommodations). Accordingly, the court erred in barring Parker’s discriminatory termination claim for failure to exhaust administrative remedies.

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

Acting Assistant General Counsel

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

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