Table of Contents
Table
of Authorities.................................................................................... ii
Statement
of Interest................................................................................... 1
Statement
of the Issues............................................................................... 2
Statement
of the Case................................................................................. 2
A.
Statement
of Facts............................................................................ 3
B.
District
Court Opinion...................................................................... 5
Summary
of Argument............................................................................... 7
Argument................................................................................................... 8
A. The district court
erred by disregarding all incidents of harassment that were not expressly discriminatory
and/or were not directed at Rasmy.................................................................. 9
B. The district court
erroneously concluded that because Rasmy had not been physically threatened and
his work performance had not suffered, even pervasive and highly offensive harassment
could not have altered the conditions of his employment.................... 15
Conclusion............................................................................................... 19
Certificate
of Compliance
Certificate
of Service
Table of Authorities
Cases
Alfano
v. Costello,
294 F.3d 365 (2d Cir. 2002).............................. 8, 10, 13
Dawson
v. Cty. of Westchester, 373 F.3d 265 (2d Cir. 2004).................... 14
EEOC
v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007)................... 17
Ellis
v. Houston,
742 F.3d 307 (8th Cir. 2014)......................................... 14
Feingold
v. New York,
366 F.3d 138 (2d Cir. 2004)................................... 8
Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010).............. 11
Harris
v. Forklift Sys., Inc., 510 U.S. 17 (1993).................... 2, 9, 13, 16-19
Hayut
v. State Univ. of N.Y., 352 F.3d 733 (2d Cir. 2003)........................ 17
Henry
v. Wyeth Pharm., Inc.,
616 F.3d 134 (2d Cir. 2010)....................... 12
Kaytor
v. Elec. Boat Corp.,
609 F.3d 537 (2d Cir. 2010).......................... 10
Mathirampuzha
v. Potter,
548 F.3d 70 (2d Cir. 2008)..................... 6, 15-17
Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)............................... 8
Petrosino
v. Bell Atl.,
385 F.3d 210 (2d Cir. 2004)................................... 14
Price
Waterhouse v. Hopkins,
490 U.S. 228 (1989).................................. 10
Pucino
v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112 (2d Cir. 2010)........................................................................................................... 10,
18
Raniola
v. Bratton,
243 F.3d 610 (2d Cir. 2001)......................................... 9
Raspardo
v. Carlone,
770 F.3d 97 (2d Cir. 2014)..................................... 13
Redd
v. N.Y. Div. of Parole, 678 F.3d 166 (2d Cir. 2012)..................... 9,
18
Reeves
v. C.H. Robinson Worldwide, Inc., 594 F.3d 798
(11th
Cir. 2010) (en banc)........................................................................ 13
Roy
v. Correct Care Solutions, LLC, 914 F.3d 52 (1st Cir. 2019)............. 11
Sassaman
v. Gamache,
566 F.3d 307 (2d Cir. 2009)................................ 12
Schiano
v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) 13, 16, 19
Tomassi
v. Insignia Fin. Grp.,
Inc., 478 F.3d 111 (2d Cir. 2007).............. 12
Whidbee
v. Garzarelli Food Specialties, Inc. 223 F.3d 62
(2d
Cir. 2000)............................................................................... 13,
14, 17
Williams
v. Gen. Motors Corp.,
187 F.3d 553 (6th Cir. 1999).................. 14
Statute and Rule
Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq......... 1
§ 2000e-2(a)(1)............................................................................... 10
Fed.
R. App. P. 29(a).................................................................................. 1
Statement
of Interest
Congress
charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting,
administering, and enforcing Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. The district court in
this case significantly misconstrued and misapplied Title VII’s protections
against discriminatory hostile work environments. The court erroneously refused
to consider instances of harassment that were not expressly discriminatory perpetrated
by individuals who also engaged in explicitly discriminatory harassment.
Likewise, the court refused to consider offensive comments that were not
directed at Gebrial Rasmy, even though the individual who made the comments intended
Rasmy to hear them and harassed him directly on other occasions. Finally, the
court wrongly concluded that the harassment could not have altered the
conditions of Rasmy’s employment because he had not been physically threatened
and his work performance had not suffered.
The
EEOC has a significant interest in the proper interpretation of federal
anti-discrimination statutes. Accordingly, the EEOC files this brief pursuant
to Federal Rule of Appellate Procedure 29(a).
Statement
of the Issues
1.
Did
the district court err by disregarding all incidents of harassment that were
not expressly discriminatory and/or were not directed at Rasmy?
2.
Did
the district court err by concluding that because Rasmy had not been physically
threatened and his work performance had not suffered, even pervasive and highly
offensive harassment could not have altered the conditions of his employment?
Statement of the Case
Gebrial
Rasmy sued under Title VII alleging that Marriott International had subjected
him to a hostile work environment because of his race, religion, and national
origin. (R.63, Amended Compl. 1-2.) This allegation required him to show that
his workplace was “permeated with ‘discriminatory intimidation, ridicule, and
insult’ that [was] ‘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) (citations omitted). The
district court held that Rasmy could not satisfy this standard and granted
summary judgment for Marriott. (R.95, SJ Order.)
A. Statement of Facts
Rasmy,
a devout Coptic Christian born in Egypt, was a banquet server at the JW
Marriott Essex House in Central Park South. (JA 45, 48, 493.) He repeatedly
complained to management that his coworkers were engaged in wage theft,
overcharging, and unfair scheduling practices. (JA 82, 186-87, 195, 378,
493.) He named in particular Stamatis Efstratiou and Mehran Tehrani, coworkers
who were also union delegates. (JA 137, 195-96.) He alleges that the director
of human resources failed to respond to his complaints, repeatedly threatened
him with termination, and told him, “I am sick and tired of this shit, and I’m
sick and tired also because of you I have to send tons of fucking documents to
[Marriott’s chief executive officer] because you have called the corporate
about possible overcharge.” (JA 287, 334.)
When
Rasmy’s coworkers became aware in 2013 of his whistleblowing complaints, they
began to harass him. (JA 94, 493.) He testified that Efstratiou, Tehrani, and
Sekson Pongpanta “constantly discriminated against me on the basis of my
religion and national origin,” (JA 287), calling him names such as “rat,”
“fucking Egyptian,” “the mummy,” “fucking camel,” “fucking Egyptian rat,”
“fucking Arab,” “Egyptian mother fucker,” “mummy mother fucker,” “pretentious
Christian,” and “fucking Christian.” (JA 93-94,
200-01, 357, 371, 484, 496.) Rasmy complained to the director of human
resources, but she “laughed in my face.” (JA 493.) She also told him, “Keep
your fucking mouth shut or your days will be numbered at this work.” (JA 345.)
After Efstratiou learned about Rasmy’s
complaints, he began to refer to Rasmy exclusively by the insulting names
described above instead of using his given name. (JA 371.) “[T]hat went on
and on and on and on,” Rasmy testified. Id. According to Rasmy, Efstratiou
said that “Egyptian[s] do the dirty work in Greece like the Mexican[s] in [the]
United States,” that Egypt had been occupied for its entire history, and that
“Greeks are the only pure race [and have] lived on the same land for 3,000 years.”
(JA 371.) He also said, in Rasmy’s hearing, that Christians “don’t drink but
they marry their sister. They fuck their sister,” and then Efstratiou,
Tehrani, and Pongpanta laughed. (JA 102, 381.) Efstratiou made sure that
Rasmy heard these comments. (JA 101, 381.) “He really insulted them and he
insulted me,” Rasmy testified. (JA 381.)
Rasmy
engaged in verbal altercations with several coworkers, including Tehrani and
Pongpanta. (JA 198.) Coworkers filed complaints about him with management,
all of which Rasmy characterized as false. (JA 371, 494.) Following a 2016
physical altercation between Rasmy and Pongpanta, Marriott fired both of them.
(JA 213-15, 219-21.) Only Pongpanta grieved his termination, and an arbitrator
ultimately ordered Marriott to reinstate him. (JA 163-64, 224-25.)
Rasmy
sued, challenging his termination as discriminatory and retaliatory, and
alleging that he had been subjected to a hostile work environment on the basis
of his race, religion, and national origin. (R.63, Amended Compl. 1-2.) The
district court granted summary judgment to Marriott on all claims. (R.95,
SJ
Order.)
B.
District Court Opinion
The
district court held that Rasmy could not establish a hostile work environment
under Title VII as a matter of law. Id. at 20. Parsing the insults
into those that do and “do not relate to his membership in any protected class,”
the court said that the latter were “not relevant” to the hostile work
environment claim. Id. Thus, the court refused to consider coworkers’
comments about Rasmy being a “rat” or threats of termination by the director of
human resources. Id. at 20-21. Likewise, the court refused to consider
other ostensibly non-discriminatory conduct, such as his coworkers’ allegedly
false complaints about him and management’s failure to investigate his claims.
Id. at 22-23. The court excluded evidence of Efstratiou’s comments
about Egyptians and about religion, holding that those comments were merely
“stray remarks” because Rasmy had not alleged that Efstratiou made the comments
directly to him. Id. at 21-22.
With
respect to the expressly discriminatory insults, the district court first held
that the comments were insufficiently severe “to have altered [Rasmy’s] working
conditions.” Id. at 23. The court cited Mathirampuzha v. Potter,
548
F.3d 70 (2d Cir. 2008), in which this Court held that a single incident where a
supervisory employee grabbed the plaintiff’s arm, punched him in the shoulder
and chest, spit in his face, and poked him in the eye was not severe enough to
have “alter[ed] materially the plaintiff’s working conditions.” (R.95, S.J.
Order at 23) (quoting Mathirampuzha, 548 F.3d at 73, 79). “If a
physical encounter of the type alleged in Mathirampuzha
was not severe enough,” the court said, “then no rational jury could find
that the incidents Rasmy alleges were severe enough to have altered his working
conditions.” Id. at 24.
The
court acknowledged that the testimony might suggest “pervasive” harassment, but
declined to reach this issue “because there is nothing in the record from which
a reasonable jury could conclude that the alleged discrimination ‘alter[ed] the
conditions of [his] employment.’” Id. (citation omitted) (alterations
in original). “As offensive as Plaintiff’s coworkers’ alleged statements
were,” the court explained, “the record presents a plaintiff who worked
side-by-side with these coworkers for many years without incident, has not
alleged that he was ever physically threatened, and described no way in which
the comments, however degrading, interfered with his work performance.” Id.
The
court concluded that the timing of the discriminatory insults, beginning when
Rasmy’s coworkers learned about his whistleblowing, raised an “unmistakable
inference” that the coworkers “were likely motivated by personal animus in
response to Plaintiff’s allegations of wage theft more than any discriminatory
animus.” Id. at 24-25. Accordingly, the court held, no reasonable jury
could find a discriminatory hostile work environment. Id. at 25.
Summary of Argument
The
district court erred by considering only remarks that were explicitly based on
race, religion, or national origin. The same individuals who were harassing
Rasmy in overtly discriminatory ways also harassed him in other ways. Longstanding
precedent allows juries to infer discriminatory intent in these circumstances.
Likewise,
the court erred by refusing to consider the offensive comments that Efstratiou
deliberately made within Rasmy’s hearing because they were not “directed at”
Rasmy. Efstratiou was already harassing Rasmy in explicitly discriminatory
ways, and the comments in question also involved race, religion, and national
origin. It was inappropriate as a matter of law for the district court to
characterize these comments as “stray remarks”—a legal doctrine with no
applicability in the hostile work environment context. Moreover, a reasonable
jury could well find that the comments Rasmy overheard, with their express
connection to protected characteristics, contributed to the discriminatory
hostility of his work environment.
Finally,
the court erred by holding that even pervasive and highly offensive harassment
could not have altered the conditions of Rasmy’s employment because he had not
been physically threatened and his work performance had not suffered. Physical
threats and diminished work performance are relevant but not necessary to Title
VII liability. Being forced to work in a discriminatorily hostile environment
is enough, on its own, to alter the conditions of employment, as long as the
hostility is sufficiently severe or pervasive.
Argument
Title
VII prohibits employers from subjecting employees to a hostile work environment
based on their race, religion, national origin, or other protected
characteristic. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986). To be actionable, a hostile work environment must be “sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.”
Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citations
omitted). Whether harassment is sufficiently severe or pervasive to be
actionable “can be determined only by looking at all the
circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Courts must not consider the evidence in “piecemeal fashion.” Redd v. N.Y.
Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012). Rather, “‘the quantity,
frequency, and severity of the incidents . . . must be considered cumulatively,
so that we may obtain a realistic view of the work environment.’” Raniola
v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) (citation omitted).
A.
The
district court erred by disregarding all incidents of harassment that were not expressly
discriminatory and/or were not directed at Rasmy.
Efstratiou, Tehrani, and Pongpanta harassed
Rasmy in ways that were explicitly discriminatory and also in ways that were
not. The district court refused to consider the conduct that was not expressly
based on race, religion, or national origin, finding as a matter of law that
calling Rasmy a “rat” or filing allegedly false complaints against him had nothing
to do with discrimination. (R.95, S.J. Order
at
20, 23.) The court failed to acknowledge that a reasonable jury could infer
discrimination from the fact that these same individuals also called Rasmy “fucking
Egyptian,” “the mummy,” “fucking camel,” “fucking Egyptian rat,” “fucking
Arab,” “Egyptian mother fucker,” “mummy mother fucker,” “pretentious
Christian,” and “fucking Christian.” (JA 93-94, 200-01, 357, 371, 484, 496.)
This Court has long held that when
the same individuals engage in some harassment that is explicitly discriminatory
and other harassment that is not, the entire course of conduct may be relevant
to a hostile work environment claim. See Pucino v. Verizon Wireless
Commc’ns, Inc., 618 F.3d 112, 118 (2d Cir. 2010) (“A plaintiff may rely on
incidents of sex-based abuse to show that other ostensibly sex-neutral conduct
was, in fact, sex-based.”); Kaytor v. Elec. Boat Corp.,
609
F.3d 537, 547-48 (2d Cir. 2010) (“Circumstantial evidence that facially
sex-neutral incidents were part of a pattern of discrimination on the basis of
gender may consist of evidence that ‘the same individual’ engaged in ‘multiple
acts of harassment, some overtly sexual and some not.’”) (quoting Alfano v.
Costello,
294
F.3d 365, 375 (2d Cir. 2002)).
Curiously, the district court concluded
that even the explicitly discriminatory harassment was not, in fact,
discriminatory. According to the court, “[T]he unmistakable inference from the
timing of the comments after years without incident [is] that his coworkers
were likely motivated by personal animus in response to Plaintiff’s allegations
of wage theft more than any discriminatory animus.” (R.95, S.J. Order at
24-25.)
But a reasonable jury could have concluded
that the overtly discriminatory harassment was “because of” Rasmy’s protected
characteristics. 42 U.S.C. § 2000e-2(a)(1). Proving that a hostile work
environment exists “because of” protected characteristics is not synonymous
with proving sole cause. See Price Waterhouse v. Hopkins, 490 U.S. 228,
241 (1989) (plurality op.) (observing that Congress considered and rejected
placing the word “solely” before “because of … sex” when enacting Title VII).
Thus, it is irrelevant to Title VII
liability that factors other than race, religion, or national origin may also
have played a role. See, e.g., Roy v. Correct Care Solutions, LLC,
914 F.3d 52, 64 (1st Cir. 2019) (jury could find hostile work environment in
violation of Title VII if harassment was based in part on plaintiff’s sex and
in part on her whistleblowing); cf. Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 110 (2d Cir. 2010) (explaining in case asserting both age and sex
discrimination that “where two bases of discrimination exist, the two grounds
cannot be neatly reduced to distinct components”). On the facts of this case, a
jury, and not the court, should determine whether and to what extent
Efstratiou, Tehrani, and Pongpanta harassed Rasmy because of his race,
religion, and/or national origin.
The district court also ignored the
obvious fact that the harassers targeted Rasmy with expressly discriminatory
language. That choice had consequences. By harassing Rasmy with insults tied
to his race, religion, and national origin, the harassers caused Rasmy to experience
his work environment as hostile precisely because of his protected
characteristics.
Additionally, the district court erred by
refusing to consider derogatory comments that Rasmy overheard but that were not
made directly to him. (R.95, S.J. Order at 21-22.) Rasmy testified that
Efstratiou “always made sure I heard his comment[s] about religions, about
Egyptian, and how superior Greeks are.” (JA 101, 381.) The district court
characterized these comments as “stray remarks,” asserting that “[t]here are no
facts in the record to support the inference that Plaintiff was personally
targeted by any anti-Christian animus.” (R.95, S.J. Order at 22.)
The court’s analysis was legally flawed,
as the “stray remarks” doctrine is not relevant in the context of a hostile
work environment claim. As this Court has explained, the doctrine addresses the
degree to which remarks by non-decisionmakers are probative in cases challenging
adverse employment actions. In that setting, “the more remote and oblique the
remarks are in relation to the employer’s adverse action, the less they prove
that the action was motivated by discrimination.” Tomassi v. Insignia Fin.
Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007), abrogated in
part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009); see also Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 150 (2d Cir.
2010) (considering probative value of remarks in relation to “adverse action”);
Sassaman v. Gamache, 566 F.3d 307, 314 (2d Cir. 2009) (same).
Hostile work environment claims are
fundamentally different. The emphasis in such claims is on the hostility of
the work environment as a whole, not on the motivation of a single
decisionmaker. Liability “can be determined only by
looking at all the circumstances.” Harris, 510 U.S. at 23
(emphasis added). It is sufficient for liability purposes if “a series of
incidents were ‘sufficiently continuous and concerted’ to have altered the
conditions of [an employee’s] working environment.” Alfano, 294 F.3d at
374 (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000)); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
600 (2d Cir. 2006) (question is whether “‘reasonable employee would find the
conditions of her employment altered for the worse’”) (quoting Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000))
(emphasis in Whidbee).
For this reason, the EEOC has long taken
the position that conduct not directly targeted at an individual can still
transform her work environment into a hostile or abusive one.
See Reeves v. C.H. Robinson Worldwide, Inc.,
594
F.3d 798, 811 (11th Cir. 2010) (en banc) (“[W]ords and conduct that are
sufficiently gender-specific and either severe or pervasive may state a claim
of a hostile work environment, even if the words are not directed specifically
at the plaintiff.”); Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir.
2004) (generalized workplace disparagement of women, not directed specifically
at plaintiff, can support hostile work environment claim); Dawson v. Cty. of
Westchester,
373
F.3d 265, 272 (2d Cir. 2004) (“‘Because the crucial inquiry focuses on the nature
of the workplace environment as a whole, a plaintiff who herself experiences
discriminatory harassment need not be the target of other instances of
hostility in order for those incidents to support her claim.’”) (citation
omitted); Whidbee, 223 F.3d at 70 (considering comments “that the
plaintiffs were subjected to, or at the very least aware of”); see also
Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (when offensive
comments not directly made to plaintiff become known to plaintiff, “their relevance
to claims of a hostile work environment is clear”); Williams v. Gen. Motors
Corp., 187 F.3d 553, 563 (6th Cir. 1999) (overhearing “I’m sick and tired
of these fucking women” could be “humiliating and fundamentally offensive to
any woman in that work environment”).
The court’s analysis was also factually
wrong, as the record shows that Rasmy was, indeed, personally targeted by
anti-Christian animus. Efstratiou and others called Rasmy a “pretentious
Christian” and a “fucking Christian.” (JA 496.) They also insulted him with comments
explicitly based on his race and national origin. The comments that Efstratiou
made within Rasmy’s hearing, and with the intent for Rasmy to overhear, involved
precisely the same type of animus. Thus, all of his comments were relevant to
Rasmy’s hostile work environment claim.
B. The district court
erroneously concluded that because Rasmy had not been physically threatened and
his work performance had not suffered, even pervasive and highly offensive harassment
could not have altered the conditions of his employment.
Rasmy alleged multiple incidents over a three-year
period in which his coworkers called him horrible, discriminatory names—insults
that the district court, itself, characterized as “degrading” and objectively “offensive.”
(R.95,
S.J.
Order at 24.) The district court discussed, first, whether these allegations
constituted severe harassment, and, second, whether they might constitute
pervasive harassment.
With respect to severity, the court found
that the harassment Rasmy suffered was less severe than the one incident of
assault at issue in Mathirampuzha. (R.95, S.J. Order at 23-24.) But Mathirampuzha
was inapposite for two reasons. First, the Mathirampuzha Court itself framed
its analysis as addressing a standard disparate treatment claim rather than a
hostile work environment claim. The Court held the assault did not constitute
an “adverse employment action” for purposes of the third prong of the McDonnell
Douglas prima facie case. 548 F.3d at 78-79 (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).
Unlike disparate treatment claims, however, hostile work environment claims do
not require proof of an adverse employment action. See Harris, 510 U.S.
at 21 (“When the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment,
Title VII is violated.”) (internal citations omitted).
Second, even if this Court had been
considering the assault in Mathirampuzha for hostile work environment
purposes, the question there was when “a single event, if ‘extraordinarily
severe,’ could alter the conditions of a working environment.” 548 F.3d at
79 (quoting Howley v. Town of Stratford,
217
F.3d 141, 153 (2d Cir. 2000)). By contrast, this case does not rest on a
single incident—Rasmy alleges numerous incidents of harassment over the course
of three years. Even if each of Rasmy’s allegations is individually less
severe than the assault in Mathirampuzha, what matters in a hostile work
environment is their combined effect. See Schiano, 445 F.3d at 606
(when plaintiff alleges ongoing harassment, severity of any individual act is
not dispositive); see also EEOC v. WC&M Enters., Inc., 496 F.3d 393,
400 (5th Cir. 2007) (“‘The required level of severity or seriousness varies
inversely with the pervasiveness or frequency of the conduct.’”) (quoting El-Hakem
v. BJY Inc., 415 F.3d 1068, 1973 (9th Cir. 2005)).
The district court here did not even
attempt to measure the total impact of Rasmy’s three years’ worth of
harassment against the single incident in Mathirampuzha—an endeavor that
would have been of dubious value regardless. As this Court has explained, “a
rigid ‘calculate and compare’ methodology ignores the proper role of courts . .
. at the summary judgment stage . . . [and], if strictly followed,
disregards Supreme Court guidance that hostile environment analysis ‘is not,
and by its nature cannot be, a mathematically precise test.’” Hayut v.
State Univ. of N.Y., 352 F.3d 733, 746 (2d Cir. 2003) (quoting Harris,
510 U.S. at 22). See also id. (because hostile work environment claims
are fact-specific and circumstance-driven, “̒the appalling conduct alleged in
prior cases should not be taken to mark the boundary of what is actionable’”) (quoting
Whidbee,
223
F.3d at 70) (internal citations omitted)).
Although it held that Rasmy had not shown “severe”
harassment, the district court acknowledged that a jury could find “pervasive”
harassment. (R.95,
S.J.
Order at 24.) It observed, moreover, that the alleged harassment was
“offensive” and “degrading.” Id. Based on these rulings alone, a jury
should be able to consider the merits of Rasmy’s hostile work environment claim.
See, e.g., Redd, 678 F.3d at 175 (“ʻ[A] plaintiff need not show that her
hostile working environment was both severe and pervasive; only that it
was sufficiently severe or sufficiently pervasive, or a sufficient
combination of these elements, to have altered her working conditions.’”) (quoting
Pucino, 618 F.3d at 119) (emphasis in Redd).
Nevertheless, the court held that the
harassment was not actionable “because there is nothing in the record from
which a reasonable jury could conclude that the alleged discrimination
‘alter[ed] the conditions of [his] employment.’” (R.95,
S.J.
Order at 24) (quoting Cruz, 202 F.3d at 570). Specifically, the court
said, Rasmy had not alleged that he had been physically threatened or that the
comments had interfered with his work performance. Id.
This analysis ignores the very reason that
Title VII prohibits discriminatorily hostile work environments. “[E]ven
without . . . tangible effects, the very fact that the discriminatory conduct
was so severe or pervasive that it created a work environment abusive to employees
because of their race, gender, religion, or national origin offends Title VII’s
broad rule of workplace equality.” Harris,
510
U.S. at 22. Physical threats or interference with work performance may help to
show a hostile work environment, but they are not indispensable elements of
such a claim. What matters is only whether the offensive conduct is
sufficiently severe or pervasive, viewed as a whole, to create an abusive work
environment. See Harris, 510 U.S. at 23 (“no single factor is required”);
Schiano,
445
F.3d at 606 (improper to consider each Harris factor in isolation,
“comparing and contrasting its presence in [plaintiff’s] allegations with the
fact patterns from previous cases”).
Conclusion
The
district court wrongly usurped the jury’s fact-finding role, determining as a
matter of law that certain incidents of harassment were either irrelevant or
were not motivated by discrimination. The court also erroneously concluded
that even pervasive and highly offensive harassment was insufficient to alter
the conditions of Rasmy’s employment because he had not been physically
threatened and his work performance had not suffered. These legal errors
warrant reversal.
Accordingly, the EEOC respectfully asks
this Court to reverse the award of summary judgment and remand for further
proceedings.
Respectfully
submitted,
JAMES
L. LEE Gail S. Coleman
Deputy
General Counsel Attorney
EQUAL
EMPLOYMENT
JENNIFER
S. GOLDSTEIN OPPORTUNITY COMMISSION
Associate
General Counsel Office of General Counsel
131
M Street, NE, Room 5SW24L
ELIZABETH
E. THERAN Washington, DC 20507
Assistant
General Counsel (202) 663-4055
gail.coleman@eeoc.gov
No. 18-3260