99-2043
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________________________
No. 99-2043
_______________________________________
KENNETH PIROLLI,
Plaintiff/Appellant,
v.
WORLD FLAVORS, INC., and EDWARD SELSER,
Defendants/Appellees.
_____________________________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
_____________________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE
_____________________________________________________________
GWENDOLYN YOUNG REAMS
Associate General Counsel
PHILIP B. SKLOVER
Associate General Counsel
EQUAL EMPLOYMENT
LORRAINE C. DAVIS OPPORTUNITY COMMISSION
Assistant General Counsel Office of General Counsel
1801 L Street, N.W.
JENNIFER S. GOLDSTEIN Washington, DC 20507
Attorney (202) 663-4733
TABLE OF CONTENTS
TABLE OF AUTHORITIES...............................................ii
STATEMENT OF INTEREST.........................................1
STATEMENT OF THE ISSUES...........................................1
STATEMENT OF FACTS................................................2
District Court Decision ....................................... 5
SUMMARY of ARGUMENT..........................................8
ARGUMENT
I. THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE
ENVIRONMENT DISCRIMINATION ............................................... 10
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY
JUDGMENT FOR WORLD FLAVORS WHERE THERE WAS EVIDENCE
THAT PIROLLI'S CO-WORKERS SUBJECTED HIM TO SEVERE AND
ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX ......... 12
A. There was Evidence that Pirolli was Subjected to Harassment
Because He was a Mentally Retarded Male .................................. 12
B. There Was Evidence that the Alleged Conduct by Co-Workers Was
Sufficiently Severe to Create a Hostile Work Environment for Pirolli .......
20
C. There Was Evidence that Pirolli's Employer Failed to Take Prompt
and Adequate Remedial Action in Response to Known Harassment .......... 26
CONCLUSION.................................................................28
ADDENDUM
CERTIFICATE OF BAR MEMBERSHIP and CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICESTATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the federal agency charged
with the interpretation, administration, and enforcement of Title I of
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.,
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
This appeal raises the important legal question -- yet to be decided
definitively by any court of appeals -- of whether the ADA contemplates a
claim for hostile work environment harassment. This appeal also presents
the issue of how to analyze comparative evidence where the claim is not
that the harassment occurred because of sex or because of disability,
but because of sex and disability. In our view, the district court's
decision did not take the unique nature of the claim into account, and
as a result the court failed to consider powerful comparative evidence
that plaintiff was harassed because he fell within the subgroup of
mentally retarded male. We therefore offer our views to the Court.
STATEMENT OF THE ISSUES<1>
1. Whether the ADA encompasses claims of hostile work environment
discrimination where the ADA contains language virtually identical to
Title VII language interpreted to encompass such claims.
2. Whether summary judgment was improperly granted where there was
evidence plaintiff was subjected to severe and abusive harassment because
of his disability and sex, and where the employer took no remedial action
in response to the most severe acts of harassment.
STATEMENT OF FACTS
Plaintiff Kenneth Pirolli was hired by defendant World Flavors, Inc.,
in May 1994 through the Bucks County Association for Retarded Citizens
Productions Services, Inc. ("BARC"), an organization that trains and
places disabled individuals. Pirolli has been diagnosed with "Borderline
Intellectual Functioning," R.22,<2> Exh. C at 1 (attached as Addendum)
(hereinafter "Add."), and has been tested as having an IQ of 75 on the
Wechsler Intelligence Scales.<3> R.22, Exh. B ("Confidential Report
of Psychological Evaluation"). Pirolli also has been diagnosed with a
"Relational Problem Not Otherwise Specified." Add. 1. A 1990 assessment
of Pirolli, prepared while he was attending school in a Special
Education program, listed under a "Concerns/Observations" heading:
"Social ineptness (drools [and] stands to[o] close to others when he
talks). Not liked by peers." R.22, Exh. B ("Child Study Team Report").
The report also noted that in school Pirolli "is often teased and his
feelings are hurt." Id.
World Flavors, a company that processes and sells spices, hired Pirolli
to work as an "all around person," weighing products; packing, sealing,
and stacking boxes for shipment; sweeping and scrubbing the plant floors;
and picking up trash. Pirolli was able to perform these tasks, and often
did so with "no problems at all." R.22, Exh. G (Selser Dep.) at 26,
37; see also id. at 38 (Pirolli was "more than capable" of performing
his job). At other times, however, Pirolli would make mistakes, which
required that the task be repeated. Ed Selser, the plant manager,
stated in his deposition that Pirolli's mistakes caused some resentment
among his co-workers: "you hear the mumblings from the other employees.
Thanks Ken . . . now we've got to do it all over again, or something
like that." Id. at 37.
It is unclear from the record how well Pirolli fit in among his
co-workers. While some co-workers stated in depositions that they
considered Pirolli a friend, Pirolli himself stated that he did not have
any friends at the plant. R.22, Exh. A (Pirolli Dep.) at 17. Pirolli
also stood out in certain ways from his co-workers. For example, Pirolli
used to wear fingernail polish and fake fingernails to work. Id. at 21.
Co-workers eventually told Selser about Pirolli's nails, and Selser
instructed Pirolli not to wear the polish or fake fingernails. Id. at
24. According to Pirolli, "everything that they see it bothered them
[his co-workers], and they told him [Selser]." Id. at 23.
Pirolli alleges that between the time he was hired in May 1994 and
his termination in September 1996, he was subjected to harassment
by his co-workers. Some of the alleged harassment took the form
of name-calling. R.22, Exh. A (Pirolli Dep.) at 26. Other alleged
harassment was more physical and, to Pirolli, more threatening.
For example, Pirolli stated that one day he was in the men's locker
room changing clothes. At the time, Pirolli had a shirt and jacket on,
but no pants. Id. at 51. As Pirolli described it, when he bent over
to get his clothes
"I seen Mike's [a co-worker's] penis . . . . Then he pulled his pants
up just enough to cover it, then the lights went out. Sam [another
co-worker] hold me with his arms, they tried to hold me down. . . .
Ken [another co-worker] was there, he didn't do nothing, he was just
watching."
Id. at 49. Pirolli stated that "Gene," another co-worker had turned off
the lights and was trying to close the door, but Pirolli stuck his foot in
the door. Eventually Gene turned the lights back on. To Pirolli, he felt
that his co-workers were "almost raping me." Id. at 50. Pirolli stated
that he told Selser about the incident, that Selser promised "to take
care of it," but that Selser never took any action. Id. at 51.
There was also evidence that another one of Pirolli's co-workers,
Harley Strauss, "attempted to push a broom pole into [Pirolli's] behind
as other staff watched." Add. 1. Pirolli was wearing work clothes
at the time. There was evidence that at times when Pirolli would
bend over, Sam would rub his penis against Pirolli's behind. Add. 1.
Pirolli "reported these incidents to his foreman [Selser]," but "the
harassment continued." Add. 1. And there was evidence that Pirolli's
co-workers put him in a "tote," a large plastic container. He stated
that he had to kick the lid open to get out. Pirolli stated that he
never saw anyone else put in a tote. R.22, Exh. A (Pirolli Dep.) at 47.
Finally, there was evidence of actions by Pirolli's co-workers that were
directed at a number of different employees. Such actions included
throwing balls of tape at each other, squirting water at each other,
hitting each other in the arm, and putting each other in headlocks.
However, the more severe, sexually-oriented conduct appeared to be
reserved for Pirolli alone.
World Flavors employed one other individual with some mental retardation.
R.22, Exh. G (Selser Dep.) at 71; see also R.22, Exh. J (Twaits
Aff.). That employee, who was female, apparently was not subjected to
harassment. According to the employee, Leslie Ann Twaits, she felt that
she was not singled out for different treatment and she did not believe
she had been subjected to discrimination. R.22, Exh. J (Twaits Aff.).
District Court Decision
The district court granted World Flavors' motion for summary judgment.
See Pirolli v. World Flavors, Inc., 1999 WL 1065214 (E.D. Pa. 1999).
The court first considered Pirolli's claim that he was subject to
harassment on the basis of sex. According to the court, the evidence
presented "does not provide a basis upon which a reasonable jury could
find that he was harassed because of his sex." Pirolli, 1999 WL 1065214,
at *3. The court considered the evidence of the locker room incident,
which Pirolli characterized as "the rape." The court noted Pirolli's
testimony that a co-worker held him by the waist and attempted to
prevent him from leaving the room, that another co-worker turned off
the lights, that this event occurred while Pirolli and the others
were in various stages of undress, and that, according to Pirolli,
he saw another co-worker's penis during the scuffle. Id. The court
concluded that this conduct, albeit "inappropriate," "was far from a
rape or even an attempted rape." Id.
The court next considered Pirolli's allegation that a co-worker
attempted to insert a broomstick up his anus while another co-worker
watched. The court deemed the incident merely "inappropriate" and
"far less offensive than the complaint allegations suggest." Pirolli,
1999 WL 1065214, at *4. The court also emphasized that the only
record substantiation for this allegation was the report of Pirolli's
psychologist. The report was not in the form of an affidavit, nor was
"the alleged history . . . verified by an affidavit from plaintiff."
Id. at *4 n.4. The court concluded that the "report alone in this form
cannot be the basis for a factual dispute." Id.
Addressing the remaining evidence, the court noted that other instances
of harassment (e.g. being stuffed into a large plastic container) were
"not overtly sexual in nature," and allegations of other sexual-type
harassment (e.g. propositions from co-workers) did not have record
support. Pirolli, 1999 WL 1065214, at *4. The court concluded that
while some of the conduct of Pirolli's co-workers "had an offensive
sexual connotation," there was insufficient evidence of discrimination
because of sex. Pirolli, 1999 WL 1065214, at *4.
The district court, analyzing the claim further, determined that although
the conduct was regular and pervasive and it detrimentally affected
Pirolli, the conduct objectively did not rise to the level of severity,
offensiveness, or abusiveness required to constitute harassment.
Pirolli, 1999 WL 1065214, at *5. The court stated that Pirolli "was
treated no differently than his co-workers," who regularly engaged in
"physical horseplay and roughhousing." Id. Such "macho horseplay and
adolescent roughhousing" appears to have been the "workplace etiquette in
[the] food plant." Id. at *11. Finally, the court held that there were
no grounds for holding the employer liable since there was evidence that,
after Pirolli complained to Selser about an incident, Selser disciplined
the co-worker. Id. at *5.
The district court next addressed Pirolli's ADA harassment claim.
The court noted that the Third Circuit has not decided whether such a
claim is viable under the ADA. Pirolli, 1999 WL 1065214, at *6. In any
event, the court held, there is insufficient evidence that Pirolli
experienced harassment because of his disability. According to the
court, there is no evidence "of an awareness among his co-workers of
Pirolli's mental disability or that their behavior stemmed from such
an awareness." Id. Nor was there evidence that the work environment
was "severe and abusive," as an objective matter. Id.
SUMMARY OF ARGUMENT
The plain language of the ADA establishes that Congress intended to
encompass claims of hostile work environment harassment under the ADA.
In the ADA, Congress chose to use virtually the same language that the
Supreme Court held demonstrated Congress' intent to encompass claims of
hostile work environment discrimination under Title VII. Where Congress
incorporates a provision of a prior law into a new law, it can be assumed
that Congress is aware of the judicial interpretation of that provision.
It is thus evident that Congress intended that the ADA would protect
disabled individuals from disability-based harassment in the workplace.
The plaintiff in this case alleged he was subjected to severe
harassment not only because of his disability (mental retardation),
but also because of his sex. The district court examined the sex and
disability allegations separately, failing to consider the evidentiary
interplay between the two allegations. As a result, the court apparently
neglected to consider evidence that Pirolli was subjected to harassment
not simply because he was male and not simply because he had some mental
retardation, but because he was a mentally-retarded male. That an
individual can allege discrimination because he or she belongs to a
subclass of one or more particular protected groups, such as black
females, is well-settled as a matter of law. Factually, there was
powerful comparative evidence that while numerous employees engaged in
occasional horseplay, only Pirolli was subjected to the more severe and
sexually-oriented conduct alleged. There was one other mentally-retarded
employee, a female, who was not treated differently than her co-workers.
From this comparative evidence a jury could infer that but for
Pirolli's status as a mentally-retarded man, he would not have been
the unique recipient of his co-workers' sexually-hostile treatment.
Finally, even considering the sex claim standing alone, the form of
the co-workers' conduct - suggestions of anal sodomy - could itself be
grounds from which a jury could infer that but for Pirolli being a male,
he would not have been subjected to such conduct.
The district court's alternative holding - that the conduct was not
objectively severe or abusive - is flawed. Considering the circumstances
of the incidents, particularly the locker room incident, a reasonable
person could find them threatening or humiliating. These incidents
also must not be analyzed in a vacuum, but rather should be assessed in
their totality to ascertain whether the incidents add up to a hostile
work environment. To the extent that the district court declined to
consider evidence because it was contained within a psychologist's
report unaccompanied by affidavit, the court erred. This Court has
held that the standard for authentication is flexible and should take
into account all the evidence indicating that a document is authentic.
In this case there was considerable evidence that the report, which was
submitted by defendant and which was never challenged as unauthentic,
was in fact authentic.
ARGUMENT
I. THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE ENVIRONMENT
DISCRIMINATION.
The ADA prohibits discrimination in regard to "terms, conditions,
and privileges of employment." 42 U.S.C. § 12112(a). This language
is borrowed from Title VII (42 U.S.C. § 2000e-2(a)), and is virtually
the same language the Supreme Court interpreted to encompass hostile
environment claims under that statute. See Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) ("'phrase "terms, conditions, or privileges
of employment" evinces a congressional intent "to strike at the entire
spectrum of disparate treatment of men and women" in employment,'
which includes requiring people to work in a discriminatorily hostile or
abusive environment") (quoting Meritor Savs. Bank v. Vinson, 477 U.S. 57,
64 (1986)); see also Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 79-80 (1998). Congress' decision to use the comparable "terms"
and "conditions" language in the ADA is significant, for "Congress is
presumed to be aware of . . . [a] judicial interpretation of a statute."
Lorillard v. Pons, 343 U.S. 575, 580 (1978). And where "Congress adopts
a new law incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation given to the
incorporated law." Id. at 581. Moreover, there is every reason to
think that Congress intended to afford disabled individuals the same
protection from a hostile work environment that it affords individuals
protected by Title VII. See generally H.R. Rep. No. 485(III), 101st
Cong., 2d Sess. 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471
("the purpose of the ADA [is] to provide civil rights protections
for persons with disabilities that are parallel to those available to
minorities and women").
This Court has recognized that the "almost identical" language used in
the ADA "indicates that a cause of action for harassment exists under
the ADA." Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d
661, 666 (3d Cir. 1999). The Walton Court stopped short of so holding,
however, because the plaintiff in that case failed to state a claim
disability-based harassment. Id. at 667. In any event, whether or
not the Walton Court made an explicit holding, we urge this Court to
give effect to its well-reasoned conclusion that Congress' choice of
language in the ADA is powerful evidence that harassment claims are
encompassed within the ADA.
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR WORLD
FLAVORS WHERE THERE WAS EVIDENCE THAT PIROLLI'S CO-WORKERS SUBJECTED
HIM TO SEVERE AND ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX.
A. There was Evidence that Pirolli was Subjected to Harassment Because
He was a Mentally Retarded Male.
Critical to any claim of discrimination is proof that such discrimination
occurred because of a trait protected by one of the anti-discrimination
statutes. See generally Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998). The district court held, on summary judgment,
that Pirolli failed to meet that burden because there was insufficient
evidence that the co-workers' actions were due to Pirolli's sex or
disability. In our view, however, there was strong, comparative evidence
that Pirolli was subjected to harassment by his peers because of his
sex and because of his disability. In particular, there was evidence
that male co-workers without mental retardation were subjected only to
minor "macho" horseplay and not the severe and abusive harassment to
which Pirolli alone was subjected. There was evidence that a female
co-worker with a comparably pronounced learning disability was subjected
to no harassment at all. In sum, the comparative evidence in this case
at least creates an inference that the harassment Pirolli had to endure
was inflicted because of his unique status as a mentally retarded male,
thus making summary judgment inappropriate.
The district court rejected Pirolli's harassment claim in part because,
it stated, there was no evidence his co-workers knew of "Pirolli's mental
disability," a fact which, if true, would negate any inference that
their actions were taken because he was mentally retarded. The district
court's statement that there was no evidence of co-worker knowledge is
flatly inconsistent with the record. Most notably, Ed Selser, the plant
manager, testified in his deposition: "I'm not sure who was employed
at that time, but I know that everyone was alerted that Kenny [Pirolli]
had - what would you call it, a disability or handicap." R.22, Exh. G
(Selser Dep.) at 49 (emphasis added). The court's characterization
of the evidence also is at odds with reasonable inferences that could
be drawn, and on summary judgment must be drawn, from other record
evidence. See, e.g. Reeves v. Sanderson Plumbing Prods., Inc., 120
S.Ct. 2097, 2110 (2000) (court must draw all reasonable inferences in
favor of nonmoving party). For example, there was evidence that when
Pirolli began his employment, he was accompanied by a representative
from BARC for one to two weeks. R.22, Exh. G (Selser Dep.) at 23.
The BARC representative helped Pirolli understand how to perform his
assigned tasks. Id. at 66-67; see also id. at 22 (representative
was "like . . . a shadow. She was there watching, making sure that
everything was going fine."). Thereafter, the representative often
returned to check on Pirolli. Id. at 59. There also was evidence that
Pirolli "stood out" in appearance and manner from others around him.
See, e.g., R.22, Exh. B ("Child Study Team Report") (Pirolli drools
and stands too close to others when he talks). A factfinder could
reasonably infer from this evidence that co-workers would have to have
been aware that Pirolli had some disability, and the district court
erred in holding to the contrary.
The district court also stated there was no evidence that Pirolli was
harassed "because of" his protected traits. In analyzing Pirolli's claim
that he was harassed, the district court examined the sex and disability
components of the claim in complete isolation, without considering the
possibility of, and the significance of, an overlap of the two claims.
The court likewise examined the evidence supporting the claims in
isolation. Perhaps as a result, the district court did not recognize the
comparative evidence indicating that Pirolli may have been subjected to
harassment far more severe than co-workers not just because he was male
or disabled, but because he was a mentally retarded male. It appears
that the fact that not all men were subjected to severe harassment, and
that not all mentally retarded employees were subjected to harassment,
may have undermined the strength of Pirolli's claim in the court's view.
In our view, the court erred by failing to assess the evidence that
Pirolli was harassed because he was both disabled and male.
As a legal matter, it is well-settled that a violation can be established
by demonstrating discriminatory conduct against a particular subclass
of one or more protected groups (here a mentally retarded male).
For example, in Jefferies v. Harris County Community Action Association,
615 F.2d 1025, 1034 (5th Cir. 1980), the Fifth Circuit held that the
plaintiff, a black female, could state Title VII claim for discrimination
against black females even though the employer did not discriminate
against female or black employees generally. The court noted it was
relying on a long line of precedent holding that employers may not
discriminate against a subclass of women. See, e.g., Phillips v. Martin
Marietta Corp., 400 U.S. 542, 544 (1971) (plaintiff can state claim
under Title VII where employer discriminated not against all women, but
only against women with preschool-age children). The Jefferies court
noted that the additional factor in the case -- race -- was itself a
prohibited basis of discrimination. The court went on to hold that
allowing discrimination against a subclass of individuals with two
protected traits would be "illogical." Jefferies, 615 F.2d at 1034;
see also Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994)
(holding Asian woman may pursue claim of discrimination on basis of
combination of the two factors and criticizing any "attempt to bisect a
person's identity at the intersection of race and gender"). Failure to
recognize a claim for discrimination here, where disability rather than
race is the additional factor, likewise would be illogical.<4>
The rationale for recognizing claims like those in Jefferies,
commonly referred to as "sex (or race or some other protected trait)
plus" cases, is grounded in the language of the statutes themselves.
Both Title VII and the ADA prohibit discrimination "because of"
a protected trait. 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 12112(a).
This language does not mean that the protected trait must be the sole
cause of the discrimination. See Willingham v. Macon Tel. Publ'g Co.,
507 F.2d 1084, 1089-91 (5th Cir. 1975) (Congress' rejection of amendment
to Title VII which would have added word "solely" to modify word
"sex" supports "sex plus" theory). Rather, the statutes are violated
whenever the protected trait is a "but for" cause of discrimination.
See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 262-63 (1989)
(O'Connor, J.); see also 42 U.S.C. § 2000e-2(m) (Title VII violated
whenever protected trait was a motivating factor, even though there
were other motivating factors); Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1083 (3d Cir. 1996) (in racial harassment case, plaintiff
must show that if she "had been white she would not have been treated
in the same manner"). A violation can be established where a plaintiff
shows discrimination because of a protected trait (such as sex) plus some
additional characteristic.<5> Thus in this case Pirolli must show that
but for his disability and sex the harassment would not have occurred.
Turning to the facts of this case, there is sufficient evidence that
Pirolli was harassed because he was a mentally retarded male to preclude
summary judgment. The evidence that the harassment occurred because
he was a mentally retarded male is primarily comparative. Comparative
evidence can be highly probative in cases such as this one. Indeed,
the Supreme Court explicitly approved of using comparative evidence in
harassment cases. See Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80-81 (1998) (harassment plaintiff can prove discrimination by
using comparative evidence about how plaintiff was treated vis-a-vis
individuals who are not members of the protected class). In this
case, there is evidence that while other employees were the subject
of occasional punches in the arm, water fights, and the like, no other
employee was subjected to the more severe and sexually-oriented conduct
to which Pirolli allegedly was subjected. The district court's statement
that Pirolli "was treated no differently than his co-workers," Pirolli,
1999 WL 1065214, at *5, cannot be reconciled with the evidence that
only Pirolli was subjected to incidents like the ones that occurred in
the locker room or with the broomstick.
The record indicates that Pirolli's co-workers also did not subject a
female disabled employee to harassment of any kind. Leslie Ann Twaits,
who also was hired through an agency assisting disabled individuals
obtain employment, had some mental retardation. R.22, Exh. G (Selser
Dep.) at 71; see also R.22, Exh. J (Twaits Aff.) (Twaits has "a learning
disability").<6> Twaits stated in an affidavit that "I feel that I have
been treated like everyone else at World Flavors and I do not believe
that I have ever been . . . discriminated against . . ." R.22, Exh. J
(Twaits Aff.). A jury could infer from this comparative evidence that
Pirolli was subjected to harassment because he was mentally retarded
and he was male.
The fact that the co-workers did not harass all males, or all
mentally-disabled individuals should not undercut the significance
of this comparative evidence. See Jefferies, 615 F.2d at 1034 (fact
that black males and white females were not subject to discrimination
should not defeat claim that employer discriminated against black
female plaintiff). To the contrary, the comparative evidence in
this case is a sound basis from which a jury could infer hostility by
certain co-workers towards the presence of a mentally retarded man in
their workplace.
Finally, the evidence in this case also could support a claim by Pirolli
that he was harassed because of his sex, without considering the fact
that he was mentally retarded. There was evidence that co-workers
repeatedly engaged in conduct suggesting sexual invasion or humiliation,
such as the locker room incident, the broom pole incident, and the
occasions on which "Sam" would "rub his penis against Mr. Pirolli's
behind." Add. 1. As discussed above, the evidence indicates that
females were not subjected to this kind of severe behavior. Moreover,
the form of the behavior itself - suggestions of anal sodomy - seems
to be behavior inflicted largely on male victims.<7> See Oncale,
523 U.S. at 80 (jury can infer from form of offensive conduct towards
plaintiff that same conduct would not have occurred had plaintiff been
member of the other sex). A jury could infer from the form of the
conduct itself that but for Pirolli being a male, he would not have
been subjected to severe harassment.
B. There Was Evidence that the Alleged Conduct by Co-Workers Was
Sufficiently Severe to Create a Hostile Work Environment for Pirolli.
The district court held that the alleged conduct by Pirolli's co-workers
was not sufficiently severe, offensive, or abusive to constitute
harassment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1998)
(Title VII violated when workplace 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'"); Walton v. Mental Health Ass'n
of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999) (same) (ADA case).
We submit that the court erred in so holding.
The district court appeared to give little weight to the two most
severe incidents alleged. With regard to the locker room incident,
the court concluded that the complaint's characterization of it as a
"rape" was an exaggeration. Pirolli, 1999 WL 1065214, at *3 (conduct was
"inappropriate" but "was far from a rape or even an attempted rape").
It is true that the conduct obviously was not "rape," compare18
Pa.C.S.A. § 3121, but the arguable hyperbole of the complaint<8> does
not excuse failing to consider the evidence presented. Actions short
of rape plainly can constitute unlawful harassment. In addition, this
Court has held that it is not necessary that each incident standing
alone be severe enough to create a hostile work environment; a court
should look to "totality" of conduct to determine whether a hostile work
environment exists. See West v. Philadelphia Elec. Co., 45 F.3d 744,
756 (3d Cir. 1995); Andrews v. City of Philadelphia, 895 F.2d 1469,
1485 (3d Cir. 1990).
We also take issue with the court's characterization of the incident as
merely "inappropriate," especially in light of the evidence surrounding
the incident. As the Supreme Court has emphasized, "the objective
severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff's position, considering 'all the
circumstances.'" Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at
23). In our view, any reasonable person could view being physically
restrained by co-workers in a darkened locker room under circumstances
set out by Pirolli as severe and abusive. See Harris, 510 U.S. at 23
(whether conduct is "physically threatening or humiliating" is relevant
to whether environment is hostile or abusive). Subjectively, Pirolli
was "'scared to death'" by the incident and "feared he would be raped."
Add.<9>
The district court also deemed merely "inappropriate" the threat
to insert a broomstick up Pirolli's anus. Again we submit that
the incident was more than simply inappropriate and could support
a finding of severity because of its threatening and/or humiliating
character. See Harris, 510 U.S. at 23; see also McWilliams v. Fairfax
County Bd. of Supervisors, 72 F.3d 1191, 1193-96 (4th Cir. 1996)
(co-workers who "placed a broomstick to [plaintiff's] anus"and who
tied plaintiff's hands together and blindfolded him engaged in conduct
that was "shameful," "utterly despicable," and arguably at the level
of adversely affecting the victim's work performance)<10>; Martin
v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1047-52 (N.D. Ala. 1996)
(co-workers who, inter alia, "attempted to stick a broom handle into
[plaintiff's] anus" while plaintiff was "fully clothed" engaged in
conduct that was "offensive" and arguably "extreme and outrageous");
Goluszek v. H.P. Smith, 697 F. Supp. 1452, 1454-56 (N.D. Ill. 1988)
(co-worker actions, including "pok[ing] [plaintiff] in the buttocks
with a stick," was "pervasive . . . harassment")<11>; compare Taylor
v. Nat'l Group of Cos., 872 F. Supp. 462, 463-64 (N.D. Ohio 1994)
(female plaintiff struck on buttocks by board wielded by company
president "is an example of extremely severe sexual harassment").
There also was other evidence of harassment which the court did not
mention, such as evidence that one male co-worker at times would
rub his penis against Pirolli's behind when Pirolli would bend over.
In our view, when the evidence of harassment is considered in totality,
the harassment was sufficiently severe and abusive to make summary
judgment inappropriate.
The district court in this case apparently gave the broomstick incident
little consideration, and the rubbing incidents no consideration, because
the evidence of these incidents was contained within a psychologist's
report which, as the district court stressed, was not in the form of an
affidavit nor was it verified by an affidavit from Pirolli. Pirolli,
1999 WL 1065214, at *4 n.4 (the "report alone in this form cannot be the
basis for a factual dispute"). That the report was unaccompanied by an
affidavit should not automatically render the report unauthenticated,
however, especially where there was other evidence of the report's
authenticity.
In his deposition, Pirolli stated that he went to see the psychologist,
Dr. Dorfman, on a regular basis. Pirolli stated that he discussed
events "that were going on with me over [at] World Flavors." R.22,
Exh. A (Pirolli Dep.) at 45. When asked whether he told Dr. Dorfman
"everything that happened to you that bothered you," Pirolli replied
"Yes, I told him everything." Id. at 46; see also id. at 30-32, 44-45.
Pirolli specifically mentioned discussing being placed in the tote
with Dr. Dorfman. Id. at 46. The district court did not consider this
evidence, but instead applied an unduly rigid authentication standard.
Such a rigid standard is inconsistent with this Court's precedent, for
this Court has rejected applying "technical evidentiary rules" to the
question of authenticity. See Link v. Mercedes-Benz of N. Am., Inc.,
788 F.2d 918, 928 (3d Cir. 1986). According to the Link Court,
"'[t]he burden of proof for authentication is slight. "All that is
required is a foundation from which the fact-finder could legitimately
infer that the evidence is what the proponent claims it to be."'"
Id. at 927. Such foundation can include circumstantial evidence. Id.
The Linz Court determined that distinctive characteristics of the
documents - such as company logos, a professional appearance, and the
specific nature of the contents of the documents - were characteristics
"sufficient to overcome the slight authentication admissibility burden."
Id. at 928. Dr. Dorfman's report likewise has a professional appearance,
is specific in the nature of its contents, and is on professional
stationery. Add. The top of the report also indicates that it was
faxed from Dr. Dorfman's office. Id. Combined with Pirolli's deposition
testimony, there was sufficient indicia that the document was what both
parties purported it to be.
Moreover, defendant did not raise any questions about the report's
authenticity. Indeed, it was the defendant itself that first placed the
report in the district court record when it attached it as an exhibit
to its summary judgment motion. Given that defendant first attached
the report as an exhibit, Pirolli had no reason to expect a dispute
as to authenticity. Compare Mangiaracina v. Clark, 2000 WL 684191,
*1 (S.D. Ind. 2000) (not unusual for unauthenticated documents to be
submitted, especially where no reason to expect a dispute). Had the
defendant raised an objection Pirolli could have attempted to cure the
defect with an affidavit. Id.; compare Townsend v. Columbia Operations,
667 F.2d 844 (9th Cir. 1982) (district court may consider a document
where opposing counsel does not object to the document); 10A Wright &
Miller, Federal Practice & Procedure § 2722 n.43 (same). Additionally,
defendant should not be allowed to challenge the report's authenticity in
this Court, for where no timely objection is lodged, a party's ability
to challenge the authenticity of the document on appeal is waived.
Wright & Miller, § 2722 n.44.
In sum, considering the totality of events -- the locker room incident,
the broomstick incident, the rubbing incidents, and the allegation by
Pirolli that he was placed in a large plastic container -- there is
sufficient evidence of a hostile work environment to withstand summary
judgment.
C. There Was Evidence that Pirolli's Employer Failed to Take Prompt
and Adequate Remedial Action in Response to Known Harassment.
The district court held that the employer could not be held liable
because it disciplined one employee after Pirolli complained to
Selser.<12> In general, an employer is liable for co-worker harassment
under a negligence theory of agency if management-level employees
knew or had constructive knowledge of the harassment and failed to
take prompt and adequate remedial action. See Walton v. Mental Health
Ass'n of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999); Andrews,
895 F.2d at 1486. Remedial action is "adequate" if it is "reasonably
calculated to prevent further harassment." Knabe v. Boury Corp.,
114 F.3d 407, 411 n.8 (3d Cir.1997). Implicit in this standard is a
requirement that some remedial action be undertaken. Id. at 412-14;
see also Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) ("It
is not a remedy for the employer to do nothing...."); Fuller v. City
of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (employer's remedial
obligation not discharged if no remedy is undertaken).
In this case, there was evidence, not discussed by the district court,
that Pirolli complained about the more severe incidents (namely the
locker room incident) committed by different employees to Selser.
According to Pirolli, Selser never took any action in response to
his complaint. R.22, Exh. A (Pirolli Dep.) at 51. Thus while Selser
apparently addressed one complaint by Pirolli regarding a comment by
one supervisory employee, the evidence indicates that he ignored a
complaint of far more serious harassment by wholly different employees.
In other words, there was evidence that no remedial action, adequate or
otherwise, was undertaken with regard to harassment by the co-workers.
This evidence at least creates a fact issue as to whether the employer
took remedial action reasonably calculated to end co-worker harassment.
CONCLUSION
For the foregoing reasons, we urge this Court to reverse the judgment
of the district court and remand the case for further proceedings.
GWENDOLYN YOUNG REAMS
Associate General Counsel
PHILIP B. SKLOVER
Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
__________________________
JENNIFER S. GOLDSTEIN
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC 20507
(202) 663-4733
CERTIFICATE OF BAR MEMBERSHIP
I hereby certify that I am employed by and represent in this case the
U.S. Equal Employment Opportunity Commission, an agency of the federal
government. It is my understanding that, as an attorney representing
the federal government, I need not become a member of the bar of this
Court in order to appear in this matter.
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitations of Fed. R. App. P. 32(a)(7). This brief contains 6,673
words.
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief were mailed,
Federal Express, postage prepaid, on this 25th day of January, 2001,
to the following:
Lee I. Raiken, Esq. Joanne W. Rathgeber, Esq.
1600 Locust Street 111 East Court Street
Philadelphia, PA 19103-6305 Doylestown, PA 18901
_____________________________
JENNIFER S. GOLDSTEIN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC 20507
(202) 663-4733
January 25, 2001
1 The Commission takes no position on any other issue raised in this
appeal.
2 "R.*" refers to the docket entry number in the district court docket
sheet.
3 An IQ (Intelligence Quotient) is "an estimate of a person's current
level of functioning as measured by the various tasks required in a
test." Gary Groth-Marnat, Handbook of Psychological Assessment 153 (3d
ed. 1997). An IQ of 75 places Pirolli in roughly the bottom five percent
of the population when compared to his age-related peers. Id. at 154-55.
4 The fact that the two relevant characteristics of Pirolli - his
disability and his gender - are traits protected by two different statutes
does not undercut his ability to pursue his claim under the ADA and
Title VII. See, e.g., McGrenaghan v. St. Denis Sch., 979 F. Supp. 323,
326-27 (E.D. Pa. 1997) (woman with disabled child may proceed under
both ADA and Title VII, where plaintiff alleges discrimination against a
subclass of women who have children with disabilities); Arnett v. Aspin,
846 F. Supp. 1234, 1240 (E.D. Pa. 1994) (no reason why plaintiff, who
alleged discrimination against older women, cannot proceed on "sex-plus"
theory even though the additional characteristic of age is also protected
by a separate statute).
5 Courts have generally limited "sex-plus" cases to those in which the
additional characteristic is either an immutable characteristic or a
constitutionally-protected activity, such as marriage. See Jefferies,
615 F.2d at 1033 (noting hair length regulations for males falls into
neither category). Pirolli, who is male and who has mental retardation,
obviously has alleged discrimination based on immutable characteristics.
6 According to Selser, Twaits was able to perform her job, but was a
bit slow in doing so.
7 Two commentators have observed that male harassers often "invoke the
quintessentially male imagery of forcible penetration through threats
of rape and scenarios of simulated oral and anal sodomy in a manner that
expressly depicts the harasser's manhood and superior masculinity as the
source of his power to dominate the target." Hilary S. Axam & Deborah
Zalesne, Simulated Sodomy and Other Forms of Heterosexual 'Horseplay:'
Same Sex Sexual Harassment, Workplace Gender Hierarchies, and the
Myth of the Gender Monolith Before and After Oncale, 11 Yale J.L. &
Feminism 155, 202 (1999). Axam and Zalesne go on to cite fourteen
cases involving actual, simulated, or threatened anal sodomy of a
male employee by male co-workers. Id. at 202 n.283 (citing cases).
See also Richard F. Storrow, Same-Sex Harassment Claims After Oncale,
47 Am. U. L. Rev. 677 (1998) (arguing that causation analysis should
focus on conduct, particularly where "the victim has been subjected
to willful exposure of the harasser's genital or to violent acts of
simulated sexual activity").
8 "Rape" is how Pirolli referred to the incident. R.22, Exh. A (Pirolli
Dep.) at 49.
9 The district court acknowledged that Pirolli subjectively found the
conduct abusive. Pirolli, 1999 WL 1065214, at *4.
10 The McWilliams plaintiff also had "a learning disability that arrested
his cognitive and emotional development." McWilliams, 72 F.3d at 1193.
The plaintiff's disability did not factor into the court's analysis,
presumably because the plaintiff, who was subjected to harassment before
the effective date of the ADA, did not bring a claim under the ADA.
11 The McWilliams court ultimately rejected the Title VII claim on the
grounds that a hostile work environment claim "does not lie where both
the alleged harassers and the victim are heterosexuals of the same sex."
McWilliams, 72 F.3d at 1195. The Martin court, relying on McWilliams,
reached the same holding, though it allowed plaintiff's claims under
FELA and state tort law to go forward. Martin, 926 F. Supp. at 1050.
The Goluszek court rejected plaintiff's harassment claim because, it
held, Congress did not intend to prohibit male-on-male harassment in a
male-dominated environment. Goluszek, 697 F. Supp. at 1456. After the
Supreme Court's clarification of same-sex harassment in Oncale, the
holdings of McWilliams, Martin, and Goluszek are no longer good law.
12 The discipline was issued against a supervisory employee named Eric
who told Pirolli: "you weren't paid to think." R.22, Exh. G (Selser
Dep.) at 16.
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