Brief as amicus
June 12, 2006
No.05-5388-cv
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________
ANNIE WATSON,
Plaintiff-Appellee,
v.
E.S. SUTTON, INC.,
Defendant-Appellant.
____________________________________________________
On Appeal from the United States District Court
for the Southern District of New York
____________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIE IN SUPPORT OF PLAINTIFF
AND IN FAVOR OF AFFIRMANCE
____________________________________________________
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street N.W., 7th Floor
Washington, DC 20507
202-663-4721
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings 3
2. Statement of Facts 3
3. District Court Decision 7
STANDARD OF REVIEW 10
ARGUMENT
I. AN EMPLOYEE IS PROTECTED FROM RETALIATION BY § 704(a)
OF TITLE VII WHEN SHE COMPLAINS TO MANAGEMENT
ABOUT SEXUALLY EXPLICIT CONDUCT THAT, IF REPEATED
OFTEN ENOUGH, WOULD CONSTITUTE A SEXUALLY HOSTILE
WORK ENVIRONMENT IN VIOLATION OF § 703(a). 10
II. THE JURY REASONABLY FOUND THAT WATSON
MITIGATED HER DAMAGES BY STARTING A PHOTOGRAPHY BUSINESS
AFTER A LONG AND FRUITLESS SEARCH FOR COMPARABLE WORK
IN THE FASHION INDUSTRY 24
CONCLUSION 30
CERTIFICATE OF COMPLIANCE 31
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
CASES Page(s)
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)..................................... 29
Alexander v. Gerhardt Enterprises,
40 F.3d 187 (7th Cir. 1994)......................... 13, 22
Burlington Industries v. Ellerth,
524 U.S. 742 (1998).................................. 16-22
Carden v. Westinghouse Elec. Corp.,
850 F.2d 996 (3d Cir. 1988).......................... 26-27
Clark County School District v. Breeden,
532 U.S. 268 (2001)............................... 8, 20-23
Clark County School District v. Breeden,
2000 WL 991821 (9th Cir. July 19, 2000)................. 21
Crumpacker v. Kansas Dept of Human Resources,
338 F.3d 1163 (10th Cir. 2003).......................... 21
Cruz v. Coach Stores,
202 F.3d 560 (2d Cir. 2000).......................... 23-24
Dailey v. Park Place Airport Parking,
No.4:99CV0403, 2000 WL 641203 (E.D.Mo. May 16, 2000). 15-16
Dailey v. Societe Generale,
108 F.3d 451 (2d Cir. 1997)............................. 27
Distasio v. Perkin Elmer Corp.,
157 F.2d 55 (2d Cir. 1998).............................. 17
EEOC v. HBE Corp.,
135 F.3d 543 (8th Cir. 1998)............................ 15
EEOC v. Navy Federal Credit Union,
424 F.3d 397 (4th Cir. 2005)............................ 15
Faragher v. City of Boca Raton,
524 U.S. 775 (1998).................................. 16-22
Fine v. Ryan International Airlines,
305 F.3d 746 (7th Cir. 2002)..................... 12, 13-14
Ford Motor Co. v. EEOC,
458 U.S. 219 (1982)..................................17, 25
Foster v. Time Warner Entertainment Co.,
250 F.3d 1189 (8th Cir. 2001)........................... 15
Goos v. National Association of Realtors,
715 F. Supp. 2 (D.D.C. 1989)............................ 16
Grant v. Hazelett Strip-Casting Corp.,
880 F.2d 1564 (2d Cir. 1989)............................ 16
Hansard v. Pepsi-Cola Metro Bottling Co.,
865 F.2d 1461 (5th Cir. 1989)........................... 28
Hawkins v. 1115 Legal Service Care,
163 F.3d 684 (2d Cir. 1998).......................... 24-26
Holmes v. Long Island Railroad Co.,
2001 WL 797951 (E.D.N.Y. June 4, 2001).................. 23
Hugo Boss Fashions v. Federal Insurance Co.,
252 F.3d 608 (2d Cir. 2001)............................. 10
Jordan v. Alternative Resources Corp.,
447 F.3 324 (4th Cir. 2006).......................... 19-20
J.P. Stevens v. NLRB,
380 F.2d 292 (2d Cir. 1967)............................. 15
Kirsch v. Fleet St., Ltd.,
148 F.3d 149 (2d Cir. 1998)............................. 26
McMenemy v. City of Rochester,
241 F.3d 279 (2d Cir. 2001)...................... 10-11, 19
Miller v. SwissRe Holding,
771 F. Supp. 56 (S.D.N.Y. 1991)......................... 28
Mitchell v. Robert de Mario Jewelry,
361 U.S. 288 (1960)..................................... 19
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002)..................................... 17
NLRB v. Ryder Systems,
983 F.2d 705 (6th Cir. 1993)............................ 27
Pennsylvania State Police v. Suders,
542 U.S. 129 (2004)................................. 16, 18
Reed v. A.W. Lawrence & Co.,
95 F.3d 1170 (2d Cir. 1996).................. 11, 12-13, 22
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997).................................. 10-11
Schwabacher v. United States,
334 U.S. 182 (1948)..................................... 15
Smith v. Great American Restaurants,
969 F.2d 430 (7th Cir. 1992)............................ 27
Spadola v. New York City Transit Authority,
242 F. Supp.2d 284 (S.D.N.Y. 2003)...................... 23
Tesser v. Board of Education,
370 F.3d 314 (2d Cir. 2004)............................. 10
Truesdale v. Moore,
142 F.3d 749 (4th Cir. 1998)............................ 14
United States v. Weslin,
156 F.3d 292 (2d Cir. 1998).......................... 14-15
United States v. Yonkers Board of Education,
837 F.2d 1181 (2d Cir. 1987)............................ 14
Van Dusen v. Barrack,
376 U.S. 612 (1964)..................................... 15
Wimmer v. Suffolk County Police Dept.,
176 F.3d 125 (2d Cir. 1999)............................. 22
STATUTES
29 U.S.C. § 623(d)........................................... 1
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq........................... passim
42 U.S.C. § 2000e-3(a).............................. passim
42 U.S.C. § 12203(a)-(b)...................................... 1
OTHER AUTHORITY
EEOC, Guidance on Vicarious Employer Liability
for Unlawful Harassment by Supervisors,
8 FEP Manual 405:7651 (1999),
available at www.eeoc.gov/policy/docs/harassment.html... 18
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________
No.05-5388-cv
______________________
ANNIE WATSON,
Plaintiff-Appellee,
v.
E.S. SUTTON, INC.,
Defendant-Appellant.
_______________________________________________
On Appeal from the United States District Court
for the Southern District of New York
_______________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE
_______________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency
charged by Congress to administer, interpret and enforce Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
("Title VII"), and other federal employment discrimination laws.
This appeal raises important questions regarding the legal
standards for determining whether an individual has engaged in
protected opposition, within the meaning of the anti-retaliation
provision of Title VII and, by implication, the Age
Discrimination in Employment Act, 29 U.S.C. § 623(d), and the
Americans with Disabilities Act, 42 U.S.C. § 12203(a)-(b).
Defendant takes the position that an employer may fire an
employee for complaining about sexually explicit comments in the
workplace unless the employee reasonably believes that the
complained-of conduct was already severe or pervasive enough to
constitute an actionable hostile work environment. Defendant's
position, if accepted by this Court, would discourage employees
from promptly reporting harassing conduct that, if repeated
often enough, would violate the statute. Because the
Commission's prevention and enforcement efforts depend on
employees' willingness to step forward and expose potentially
unlawful conduct, such a ruling would undermine the Commission's
ability to enforce these statutes. We therefore offer our views
to this Court.
STATEMENT OF THE ISSUES <1>
1. Whether an employee is protected from retaliation by
§ 704(a) of Title VII when she complains to management about
sexually explicit conduct in the workplace that, if repeated
often enough, would constitute a hostile work environment in
violation of § 703(a).
2. Whether a plaintiff who was terminated in violation of
Title VII may satisfy her obligation to mitigate her damages by
starting a business in an unrelated field after unsuccessfully
searching for comparable employment in her previous field.
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings
This is an appeal from a final judgment in a case under
Title VII as well as state and local law. On April 9, 2002,
plaintiff brought suit alleging that she was terminated for
complaining to her supervisor about sexual comments made to her
by a coworker. Docket entry number ("R.")1. The case was tried
to a jury in April 2004 and, on April 30, the jury returned a
unanimous verdict for plaintiff. R.47 & unnumbered entry dated
4/30/2004. Judgment was entered on May 10, 2004. R.50. In
September 2005, the district court reduced the compensatory and
punitive damage awards but otherwise denied defendant's motions
for a new trial, to alter or amend judgment, and for relief from
judgment under Rules 59 and 60, Fed. R. Civ. P. R.73 ("Order").
Defendant appealed on October 6, 2005. R.79.
2. Statement of Facts
Annie Watson's career as a designer and salesperson in the
fashion industry began in 1981. On August 30, 1999, Watson
started working as a salesperson for E.S. Sutton ("ESS"), a
company that sells sportswear to retailers such as Wal-Mart and
Dress Barn. Watson testified that she was hired primarily to
attempt to recapture the J.C. Penney account, lost some years
before due to quality and delivery problems. Watson's
supervisor, Albert Sutton, acknowledged that this task might
take a year or more. Order at 4-6.<2>
Watson testified that in the fall of 1999 she persuaded
Penney's to agree to a "test order" -- a small order of sweaters
to be delivered within an accelerated time-frame. According to
Watson, Albert and another supervisor, Yvette Sutton (no
relation to Albert), signed off on the deal but, in the end, the
order could not be delivered in time. Although Watson attempted
to negotiate an extension, Penney's cancelled the order.
Despite this set-back, however, Watson continued to solicit
orders from Penney's and was hopeful she could convince the
company again to do business with ESS. Order at 7-8.<3>
In early January 2000, Watson had a "distressing encounter"
with Gaby Sutton, who was the owner's nephew and Albert's
cousin. Watson was aware that, on other occasions, Gaby had
made sexual remarks to other employees such as asking one female
employee whether she "gave her date blow jobs." On the day in
question, Gaby came into Watson's office, announced that he had
a subscription to Penthouse magazine, and stated that he had
read an article "about how women pee on men during sex[.] . . .
[H]e wanted to know what it felt like, and he was wondering
whether [Watson] had ever done that with [her] boyfriend and
what it felt like." When Watson replied, "No, get out of here,"
Gaby continued, "Well, I figure you'd know all about those kind
of things." Watson responded, "Well, I don't," and Gaby left.
Watson testified that she was "offended" by the encounter; a
coworker described her as "visibly upset," "red" and
"mortified." Order at 9-11 (noting Watson's testimony that
"[i]t was this very predatorial kind of feeling; he's standing
up, I'm sitting down, no one else is in the office").
Watson attempted to report the incident to Albert, but he
was out. Accordingly, she wrote him a letter, detailing the
conversation and concluding: "I ask that you please discuss this
matter with [Gaby] and review any company policy on
inappropriate conduct. I would prefer to keep this matter
private and ask that you request that of him. I simply do not
want it to happen again. Thank you for your attention to this
matter. I trust that he will not do anything like it again."
Order at 11.
After receiving the letter, Albert discussed the incident
with Gaby, who admitted making some sort of comment. Albert
then spoke to Watson, stating that ESS took such matters very
seriously and asking whether she wanted Gaby fired. She
responded that, if that was the only way to put an end to his
behavior, "then yes." A few days later, however, Albert told
Watson that Gaby would not be fired because he had hired a
lawyer and "had rights." Purportedly to minimize her contact
with Gaby, Watson was moved to a new office -- the company
described it as down the hall; Watson said it was next door to
her old office. Order at 11-13. Gaby did not bother Watson
again during her remaining days at ESS. At this time ESS had an
anti-discrimination policy that "urged, encouraged and expected"
employees who believed that they were victims of or witnesses to
harassment "in any form" to discuss "the incident" "promptly"
with a supervisor or other manager. Order at 16; see also PEx2
(adding that "[r]etaliation against an individual who makes a
report . . . would be a serious violation of this Policy").
According to Watson, before the incident with Gaby, she had
never had a negative review and had always received support for
her sales efforts. Afterwards, however, she "felt like a
leper"; Yvette and Albert ignored her and did not respond to her
requests for samples or prices. Depressed, she saw a therapist
and began taking anti-depressants. Less than a month after the
complaint, she was fired, purportedly for poor performance.
Order at 12-14 & n.4 (noting that, at Watson's request, Yvette
Sutton provided her with a recommendation letter).
Watson testified that, after her discharge, she immediately
began looking for work, contacting headhunters she had used in
the past and answering ads in trade journals and newspapers.
Despite these efforts, however, she could not find comparable
work. The following year, at a friend's suggestion, she began
taking photographs professionally. By the time of trial, Watson
had opened a studio and was starting to make a profit. Order at
14-15.
3. District Court Decision
The district court remitted the damages but otherwise
denied defendant's motions. See generally R.73, Order. The
court concluded, inter alia, that the jury was properly
instructed to "'determine whether [Watson] engaged in protected
activity in complaining about Gaby Sutton's conduct,' that is,
'whether her complaint was based on a good faith, reasonable
belief that she had been sexually harassed in violation of the
law." Order at 19 (citing jury instructions). In the court's
view, defendant's arguments that plaintiff failed to make out a
claim under that standard were "wholly without merit." Id. at
23.
The district court also rejected the argument made for the
first time in defendant's post-trial motion that Watson failed
to show that she engaged in protected activity since, under
Clark County School District v. Breeden, 532 U.S. 268 (2001),
she could not have had a reasonable good faith belief that she
had been sexually harassed in violation of Title VII.
Initially, the court held that the defendant waived this
argument by failing to mention Breeden in any pre-trial motion.
Id. at 26. The court also distinguished Breeden on its facts.
The court noted that in Breeden, the plaintiff, whose job
included reading applicants' psychiatric evaluations, was
discharged after complaining about an incident in which her
supervisor, reading a comment in one application -- "I hear that
making love to you is like making love to the Grand Canyon" --
stated that he did not understand the comment, whereupon
plaintiff's coworker responded that he would explain the comment
later and both men laughed. According to the court, the two-
sentence exchange between the supervisor and coworker was "far
less offensive" than Gaby's statements to Watson, and the
comment in the application, unlike Gaby's statements, was not
directed at the plaintiff. Order at 24.
Further, the court found that additional evidence supported
the jury's finding of unlawful retaliation, noting that (1)
ESS's anti-harassment policy provides that "inappropriate
comments" like Gaby's can be actionable harassment; (2) Albert
admitted that he would view the conduct described in Watson's
letter to him as harassment, if the incident had occurred as she
reported; and (3) ESS's HR director admitted that the conduct
would at least merit an investigation as to whether harassment
had occurred. Id. at 24-25.
With respect to mitigation of damages, the court noted that
"the evidence at trial plainly demonstrated that Watson embarked
on a lengthy and thorough search for employment in the fashion
industry" before deciding to pursue photography as an
alternative career. The court reasoned: "Self-employment is an
acceptable form of mitigation," and the "Court sees no reason to
hold otherwise just because a plaintiff has switched industries,
especially where, as here, such a decision was reasonable under
the circumstances." Order at 38-39 (adding that jury considered
plaintiff's "limited prospects of finding employment comparable
to her job at ESS"). The court further found no evidence - "and
obviously the jury agreed" -- that plaintiff deliberately opted
to forego a highly-paid career to pursue a new, lower-paying
profession. Id. at 39.
STANDARD OF REVIEW
This Court reviews the denial of a motion for a new trial
for abuse of discretion. Tesser v. Board of Educ., 370 F.3d
314, 320 (2d Cir. 2004) (citing Hugo Boss Fashions v. Federal
Ins. Co., 252 F.3d 608, 623 (2d Cir. 2001)). A "motion for a
new trial ordinarily should not be granted unless the trial
court is convinced that the jury has reached a seriously
erroneous result or that the verdict is a miscarriage of
justice." Id. (citations omitted).
ARGUMENT
I. AN EMPLOYEE IS PROTECTED FROM RETALIATION BY § 704(a) OF
TITLE VII WHEN SHE COMPLAINS TO MANAGEMENT ABOUT SEXUALLY
EXPLICIT CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD
CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION OF
§ 703(a).
Section 704(a) of Title VII makes it unlawful for an
employer to discriminate against an employee because the
employee "has opposed any practice made an unlawful employment
practice" by the Act. 42 U.S.C. § 2000e-3(a). As this Court
has recognized, this provision must be interpreted broadly,
consistent with its purpose of "'[m]aintaining unfettered access
to [Title VII's] remedial mechanisms,'" lest fear of retribution
deter employees from complaining about perceived discrimination.
See, e.g., McMenemy v. City of Rochester, 241 F.3d 279, 284-85
(2d Cir. 2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
346 (1997)). Thus, this Court has read § 704(a)'s protections
to extend both to employees who oppose conduct that actually
violates Title VII and to employees who "had a good faith,
reasonable belief that the underlying employment practice was
unlawful." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d
Cir. 1996).
Here, the jury applied the good faith reasonable belief
standard to the evidence and found that Watson engaged in
protected opposition when she informed Albert Sutton about
Gaby's remarks to her and asked that he ensure such conduct
would never reoccur. See Order at 24-25. There can be no doubt
that Watson justifiably believed that Gaby's explicit sexual
remarks and inquiries constituted a form of sexual harassment.
Even Albert Sutton conceded that he would view Gaby's statements
as sexual harassment (Order at 25 (citing Tr.168)), and they
would violate the company's anti-harassment policy. PEx2.
Moreover, evidence indicated that Gaby had made pointed sexual
statements to other ESS employees, at least one of whom had
commented on this conduct to Albert, and nothing in the record
indicates that Gaby would have ceased making these remarks had
Watson not complained. In light of this evidence, the district
court properly denied defendant's motions for a post-judgment
relief.
On appeal, ESS argues that "reporting a single offensive
comment of a co-worker does not, as a matter of law, constitute
protected activity." Defendant's Brief ("Def.Br.") 5, 12-20.
In the company's view, it was free to fire Watson for
complaining about Gaby's behavior without violating Title VII
since Watson could not reasonably have believed that Gaby's
"single offensive comment" was sufficiently "serious" to create
a sexually hostile work environment in violation of Title VII.
See Def.Br. 16-17.<4>
This argument should be rejected for several reasons.
Initially, we note, the jury's finding here falls well within
the norm for retaliation cases. In numerous other cases, this
Court and others, citing the reasonable good faith belief
standard, have held that § 704(a)'s protections extended to
plaintiffs who, like Watson, complained about even a single
harassing incident. In Reed, for example, the plaintiff was
terminated soon after complaining that, when she suggested to a
coworker that he was treating her like a subordinate, he
responded: "if you think my pecker is getting in the way
. . . ." 95 F.3d at 1175. Although her complaint was limited
to this comment, there was also evidence of other similar
incidents including a sexually derogatory remark by another
coworker. Id. at 1179. Viewing the evidence as a whole, this
Court upheld the jury verdict on her retaliation claim,
reasoning that plaintiff might have perceived the complained-of
comment as merely the last in a series of incidents adding up to
a hostile work environment. Id. at 1179-80.
The Seventh Circuit reached a similar conclusion in
Alexander v. Gerhardt Enterprises, 40 F.3d 187, 190 (7th Cir.
1994), where an African-American hairdresser was fired after
complaining that, at a company meeting, her white supervisor
described an African-American stylist's demonstration of a
specific hair-curling procedure, adding "if a nigger can do it,
anybody can do it." Rejecting the defendant's argument that
complaining about a "single racist slur" did not constitute
protected opposition, the court of appeals noted that the
complaint was intended "to prevent similar comments in the
future," and plaintiff reasonably believed the complained-of
conduct to be "racially offensive." Id. at 195-96. Cf. Fine v.
Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002)
("improper" to retaliate unless claim of Title VII violation is
"completely groundless").
This approach is fully consistent with the language of
Title VII. Section 704(a) prohibits discrimination against an
individual "because he has opposed any practice made an unlawful
employment practice" by Title VII. 42 U.S.C.§ 2000e-3(a)
(emphasis added). Individuals can "oppose" discrimination not
only after a violation has occurred but also to prevent a
violation from occurring. This is the common usage of the word
"oppose." By way of illustration, an individual seeking to
prevent low-income housing from being constructed in his
neighborhood is said to "oppose" such construction. Cf. United
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-24 (2d Cir.
1987) (strong majority-community "opposition" contributed to
placing low-income housing in minority communities). Likewise,
an individual who "opposes" capital punishment or abortion does
so not only by protesting against executions or abortions after
they have occurred but also by engaging in activities designed
to prevent them from taking place. See, e.g., Truesdale v.
Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion
from jury of jurors who "opposed the death penalty" because
their "opposition to it would prevent [them from] voting for a
death sentence"); United States v. Weslin, 156 F.3d 292, 294 (2d
Cir. 1998) (upholding conviction of abortion "opponents" whose
conduct was aimed at "prevent[ing] the killing of babies"). Cf.
Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) (party "opposed
to transfer" of case will act "to prevent a transfer");
Schwabacher v. United States, 334 U.S. 182, 207 (1948)
(stockholders "oppos[e]" a merger by acting to prevent it); J.P.
Stevens v. NLRB, 380 F.2d 292, 295 (2d Cir. 1967) (quoting
notice posted by employer stating intent "to oppose this Union"
and "to prevent it from coming in here").
Likewise, under Title VII, where the issue has been
presented, complaints aimed at preventing violations have been
held to be protected under § 704. See, e.g., EEOC v. HBE Corp.,
135 F.3d 543, 554 (8th Cir. 1998) (holding that individual
opposed discrimination within the meaning of § 704(a) when he
attempted to prevent the discharge of an African-American
employee after concluding the discharge was racially-motivated).<5>
Thus, here, since Watson's complaint letter was clearly aimed at
preventing Gaby from making further offensive comments and
thereby creating a hostile work environment, the jury reasonably
could find that her complaint should be considered protected
opposition.
Construing § 704(a) to include protection for complaints
aimed at preventing discrimination from occurring furthers the
purposes of Title VII and accords with standards for liability
in the harassment context. Although Title VII also has a
remedial purpose, its "primary" objective, "like that of any
statute meant to influence primary conduct, is not to provide
redress but to avoid harm." Faragher v. City of Boca Raton, 524
U.S. 775, 805-06 (1998); see also, e.g., Pennsylvania State
Police v. Suders, 542 U.S. 129, 145-46 (2004) ("promote
conciliation rather than litigation"; deter discrimination).
Consistent with that objective, the Supreme Court has imposed on
employers an "affirmative obligation" to "prevent violations"
from happening and a "coordinate duty" on employees to "'use
such means as are reasonable under the circumstances to avoid or
minimize the damages' that result from violations of the
statute." Faragher, 524 U.S. at 806 (citing Ford Motor Co. v.
EEOC, 458 U.S. 219, 231 n.15 (1982)); see also Burlington Indus.
v. Ellerth, 524 U.S. 742, 764 (1998) (borrowing "avoidable
consequences doctrine" from tort law).
While subjecting an employee to a sexually hostile work
environment is "an unlawful employment practice" under Title
VII, it differs from other such practices in key respects. It
typically "occurs over a series of days or perhaps years,"
rather than "on any particular day," and "a single act of
harassment may not be actionable on its own." National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) ("Such
claims are based on the cumulative effect of individual acts.").
In addition, it often serves no purpose of the employer and
involves no official employer act, so employers may be unaware
that a hostile work environment is developing unless and until
they receive complaints. See generally Faragher, 524 U.S. at
794-808; Distasio v. Perkin Elmer Corp., 157 F.2d 55, 63-64 (2d
Cir. 1998) (liability for coworker harassment only if employer
provides "no reasonable avenue for complaint" or fails to remedy
harassment about which it otherwise knows or should know).
In light of these unique features, the Supreme Court has
repeatedly held that Title VII's purposes would best be served
by "encouraging employees to report harassing conduct before it
becomes severe or pervasive" enough to be actionable. Ellerth,
524 U.S. at 764 (emphasis added); Suders, 542 U.S. at 145
(citing Ellerth); see also Faragher, 524 U.S. at 806 (citing
with approval 29 C.F.R. § 1604.11(f) (EEOC regulation), advising
employers to "take all necessary steps to prevent sexual
harassment from occurring"). Accordingly, employers are
encouraged to implement effective anti-harassment policies and
complaint procedures and may be liable for harassment in the
absence of a policy. See Faragher, 524 U.S. at 806; EEOC,
Guidance on Vicarious Employer Liability for Unlawful Harassment
by Supervisors, 8 FEP Manual 405:7651, 7662 n.58 (employer
should have "mechanism" for investigating allegations of
coworker harassment and undertaking appropriate corrective
action), available at www.eeoc.gov/policy/docs/harassment.html.
At the same time, if an employee fails promptly to "avail
herself of the employer's preventive or remedial apparatus," she
may be barred from obtaining relief for any reasonably avoidable
harm. Faragher, 524 U.S. at 806-07. Compare PEx2 (ESS's anti-
harassment policy "urg[ing], encourag[ing] and expect[ing]"
employees who "believe" they were a victim of or witness to any
act of harassment "regardless of who the offender may be" to
"discuss the incident promptly with a supervisor").
Encouraging -- even requiring -- employees "to report
harassing conduct before it becomes severe or pervasive" is
incompatible with an interpretation of § 704(a) that allows
employers to discharge or otherwise retaliate against employees
who do exactly that. As this Court recognized in McMenemy,
employees will be discouraged, or deterred, from using Title VII
remedial mechanisms -- and by implication also those of their
employer -- if they know their livelihoods may suffer as a
result. See 241 F.3d at 284; cf. Mitchell v. Robert de Mario
Jewelry, 361 U.S. 288, 292 (1960) ("fear of economic retaliation
might often operate to induce aggrieved employees quietly to
accept substandard conditions") (discussing Fair Labor Standard
Act). Compare PEx2 (prohibiting retaliation against an
individual who reports any harassment). Accordingly, § 704(a)
logically must be read to protect not only complaints of
arguably actionable conduct but also conduct that, if repeated
often enough, would likely become a Title VII violation.<6>
In contrast, if ESS's view prevailed, an employee such as
Watson could find herself in a Catch-22 situation. On the one
hand, if she complains too soon -- i.e., before the harassment
is severe or pervasive enough that a court would rule she
reasonably could have deemed it unlawful -- her employer may
retaliate against her at will. On the other hand, if she waits
until the harassment is so severe or pervasive that it is
clearly unlawful, she may be barred by the doctrine of avoidable
consequences from securing relief for some or all of the
harassment she endured.
As support for its position, ESS cites Clark County School
District v. Breeden, 532 U.S. 268 (2001), a per curiam decision
issued without briefing. See Def.Br. 13-19. In Breeden, a
female employee met with a male coworker and her male supervisor
to review the psychological evaluations of four job applicants.
The report on one applicant disclosed that he had once told a
coworker, "I hear making love to you is like making love to the
Grand Canyon." The supervisor read this comment aloud, looked
at plaintiff, and said, "I don't know what that means." The
coworker replied, "Well, I'll tell you later," and both men
chuckled. 532 U.S. at 269. Plaintiff complained about this
incident to management, and her job duties were later
reorganized to her detriment. The Ninth Circuit concluded that
"a reasonable person in Breeden's position could have mistakenly
believed" that the supervisor's behavior constituted unlawful
sexual harassment (2000 WL 991821, at *1 (9th Cir. July 19,
2000)), but the Supreme Court summarily reversed. Without
addressing "the propriety of the standard," the Court reasoned
that "[n]o reasonable person could have believed that the single
incident recounted above violated Title VII's standards." 532
U.S. at 270-71. Stressing that it was part of plaintiff's job
to review these psychological evaluations and that she "conceded
that it did not bother or upset her to read the statement in the
file," the Court stated that "isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment." Id.
ESS argues that Breeden stands for the proposition that
unless an employee "subjectively and objectively" believes that
the harassment she is complaining about was severe or pervasive
enough to alter the terms or conditions of her employment, her
complaint is not protected. In light of Faragher and Ellerth,
however, it is inconceivable that the Supreme Court intended
Breeden as an invitation to employers to retaliate against
employees who do exactly what the Court encouraged - that is,
promptly call attention to sexual harassment before it becomes
actionable. Defendant's broad interpretation of Breeden,
unmoored to the facts of the case, should therefore be rejected.
The Tenth Circuit has stated that Breeden "implicitly
reject[s] any interpretation of Title VII which would permit a
plaintiff to maintain a retaliation claim based on an
unreasonable good-faith belief that the underlying conduct
violated Title VII." Crumpacker v. Kansas Dept. of Human
Resources, 338 F.3d 1163, 1170 (10th Cir. 2003) (emphasis in
original) (upholding sex discrimination claim under good faith
reasonable belief standard). If so, Breeden does not alter this
Court's standard, which already disallows such claims. See,
e.g., Wimmer v. Suffolk Co. Police Dept., 176 F.3d 125, 134-35
(2d Cir. 1999) (complaints about fellow officers' racially
discriminatory treatment of citizens is not Title VII "protected
activity" since plaintiff could not reasonably believe that
complained-of conduct was "employment practice"). Protecting
such conduct furthers none of Title VII's purposes.
The opposite is true, however, for complaints such as the
one in this case, or in Reed and Alexander, where the
harassment, if it continued, would likely violate the law.
Nothing in Breeden compels this Court to hold that such
complaints are not protected. Accordingly, we urge the Court to
limit the decision to situations like those in Breeden -- but
not present here -- where the complained-of conduct is so
fleeting and innocuous that it would be unreasonable to believe
that it would violate Title VII even if repeated. See Breeden,
532 U.S. at 271 ("the single incident recounted above").<7>
This Court's decision in Cruz v. Coach Stores, 202 F.3d 560
(2d Cir. 2000), also indicates that the Court believes that
plaintiffs who complain appropriately about offensive sexual
remarks before they rise to the level of an actionable hostile
work environment may be protected from retaliation. The
harassing conduct in Cruz was comparable to that in this case:
the plaintiff's male coworker commented on her nipples and
called her a "'f___ing cunt.'" Id. at 564. Plaintiff's
response there, however, was quite different: she slapped her
coworker. Id. This Court had no trouble finding that this
opposition was not protected. See id. at 566 ("Slapping one's
harasser . . . is not a protected activity."). As an
alternative, the Court recommended "leaving the room and
reporting the incident to Human Resources" (id. at 567) -
essentially just what Watson did in this case. This strongly
indicates that, as the district court and jury concluded,
Watson's conduct in complaining to her supervisor, in accordance
with ESS's policy, was protected "opposition" within the meaning
of Title VII. Since ESS's contrary position would undermine the
purposes of the provision as well as Title VII itself, we urge
this Court to affirm the district court's decision and hold that
§ 704(a)'s protections extend to plaintiffs such as Watson who
complain about harassment that, if repeated often enough, would
violate the statute.
II. THE JURY REASONABLY FOUND THAT WATSON MITIGATED HER DAMAGES
BY STARTING A PHOTOGRAPHY BUSINESS AFTER A LONG AND
FRUITLESS SEARCH FOR COMPARABLE WORK IN THE FASHION
INDUSTRY.
The district court properly upheld the jury's finding that
Watson mitigated her damages by opting to pursue a career in
photography. Before starting her business, Watson diligently
sought comparable work in the fashion industry for many months
after her retaliatory discharge. ESS proffered no evidence that
her eventual decision to change careers was not a reasonable
method of mitigating damages.
An "employee discharged in violation of Title VII has an
obligation to attempt to mitigate her damages by using
'reasonable diligence in finding other suitable employment.'"
Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Cir.
1998) (quoting Ford Motor Co., 458 U.S. at 231). "This
obligation is not onerous" -- she need not "be successful,"
"accept a demotion" or "go into another line of work" (id. at
695-96) - although circumstances may justify a decision to do so
anyway. To reduce her claim for damages, the employer "has the
burden of demonstrating that she has failed to attempt to
mitigate." Id. That burden may be met by establishing that
"suitable work existed," and "the employee did not make
reasonable efforts to obtain it." Id. The question of "whether
an employee has made reasonably diligent efforts is one of fact
for the jury." Id. at 696.
Applying that standard in this case, the jury reasonably
found that Watson adequately mitigated her damages after ESS
discharged her, and the district court properly rejected
defendant's arguments to the contrary. Order at 38-39. Watson
testified, without contradiction, that she repeatedly called
headhunters, checked ads in trade journals and other
publications and pursued other leads for over a year. It is
undisputed that, despite these efforts, she was never offered an
equivalent position, at a comparable rate of pay.
ESS argues, however, that Watson is not entitled to relief
because she ultimately "abandoned" her search for comparable
employment to pursue a career as a professional photographer.
Def.Br. 46. While it is not entirely clear, the company appears
to argue that, at most, Watson should have opened a business in
the fashion industry, rather than in photography. "Switch[ing]
industries," "chang[ing] her lifestyle" and "embark[ing] on a
speculative career as a portrait photographer" did not
constitute adequate mitigation. Id. This argument fails as a
matter of law and logic.<8>
The "ultimate question" with respect to mitigation is
whether a plaintiff "acted reasonably in attempting to gain
other employment or in rejecting proffered employment."
Hawkins, 163 F.3d at 695-96. This same standard extends to
self-employment. A "self-employed person is 'employed' for
purposes of mitigating damages if establishing a business of his
own was a reasonable alternative to finding other comparable
employment." Carden v. Westinghouse Elec. Corp., 850 F.2d 996,
1005 (3d Cir. 1988); see also Hawkins, 163 F.3d at 695-96
("Self-employment, if it is undertaken in good faith and is a
reasonable alternative to seeking other comparable employment,
may be considered permissible mitigation.").
There is very little caselaw involving Title VII plaintiffs
who, like Watson, start a business in an unrelated field after
searching without success for comparable employment in their own
fields. Cf. NLRB v. Ryder Sys., 983 F.2d 705, 715 (6th Cir.
1993) (upholding mitigation finding where truck driver turned to
painting, stating "backpay claimant is under no duty to remain
in the same industry as that from which he was discharged");
Dailey v. Societe Generale, 108 F.3d 451, 456-57 (2d Cir. 1997)
(upholding mitigation finding where banker returned to school
after 6-month job search, noting "central question" is whether
plaintiff's "furtherance of [her] education is inconsistent with
[her] responsibility to use reasonable diligence in finding
other suitable employment"). More commonly, the plaintiff's
business has been an outgrowth of her previous employment. See,
e.g., Smith v. Great American Restaurants, 969 F.2d 430, 438-39
(7th Cir. 1992) (discharged restaurant manager opened
restaurant). Nevertheless, in our view, the district court here
sensibly concluded that Watson acted reasonably even though her
new career was outside the fashion industry.
As the Carden Court stated, the "threshold question" is
whether plaintiff's decision to start a business was a
reasonable method of mitigating damages, and it is defendant's
burden to show that it was not. See 850 F.2d at 1005. Here,
ESS failed to show not only that Watson likely would have found
comparable work in the fashion industry had she continued
searching but also that she would have achieved success more
quickly opening a fashion-related business. Nor does the
company explain why a change in fields should matter. The jury
thus could find that ESS simply failed to carry its burden.
To support its argument that Watson failed to mitigate, ESS
relies primarily on Hansard v. Pepsi-Cola Metro Bottling Co.,
865 F.2d 1461, 1468-69 (5th Cir. 1989), and Miller v. SwissRe
Holding, 771 F. Supp. 56, 60-62 (S.D.N.Y. 1991). This reliance
is misplaced. Hansard and Miller make no sweeping
pronouncements concerning mitigation but simply hold that the
respective plaintiffs each failed diligently to pursue the
businesses they started. See Hansard, 865 F.2d at 1468 (noting
that while a "decision to become self-employed alone does not
indicate a lack of reasonable diligence," Hansard's efforts --
merely continuing a casual part-time flea market business --
were "simply insufficient"); Miller, 771 F. Supp. at 60-61
(describing plaintiff's venture as "a disaster, lacking capital,
planning and energy"). ESS points to nothing in this record
that suggests that Watson's efforts were similarly lacking.
Followed to its logical conclusion, ESS's approach would
mean that, even if an employee did not pass up any viable
opportunities for comparable employment, her employer should be
off the hook and she should not be made whole merely because she
made an entirely rational decision to open a business in an
unrelated field. However, the Supreme Court long ago held that
Title VII victims should be denied relief "only for reasons
which, if applied generally, would not frustrate the central
statutory purposes of eradicating discrimination throughout the
economy and making persons whole for injuries suffered through
past discrimination." Albemarle Paper Co. v. Moody, 422 U.S.
405, 421 (1975). ESS's approach would frustrate both of these
central purposes. Accordingly, we urge this Court to hold
instead, consistent with the decision below, that Watson's
decision to start a photography business had no effect on her
entitlement to relief.
CONCLUSION
For the foregoing reasons, this Court should affirm the
district court's denial of defendant's new trial motion,
upholding the jury findings that plaintiff engaged in protected
activity by complaining about her coworker's sexually explicit
remarks and adequately mitigated her damages by becoming a
professional photographer.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
______________________________
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, N.W., 7th Floor
Washington, D.C. 20507
(202) 663-4721
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B) because it contains 5,665 words, from the
Statement of Interest to the Conclusion, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed.
R. App. P. 32(a)(5) and the type style requirements of Fed. R.
App. P. 32(a)(6) because it has been prepared in a monospaced
typeface using Microsoft Word 2003 with Courier New 12-point
font.
Attorney for Equal Employment
Opportunity Commission
Dated: _________________________
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief of
the Equal Employment Opportunity Commission As Amicus Curiae
were sent June 12, 2006, by first-class mail, postage prepaid,
to:
Geri S. Krauss
Maranda E. Fritz
HINSHAW & CULBERTSON, LLP
780 Third Avenue
New York, NY 10017
and
Roger P. McTiernan
Suzanne M. Halbardier
Laurel A. Wedinger
BARRY, McTIERNAN & MOORE
2 Rector Street, 14th Floor
New York, NY 10006
A copy of the PDF version of the brief was also emailed to
each party's counsel, pursuant to Local Rule 32(a)(1)(H).
________________________________
Barbara L. Sloan
*****************************************************************
<<FOOTNOTES>>
<1> The Commission takes no position on other issues raised
in this appeal.
<2> Citations are the district court's 9/6/2005 Order and
Plaintiff's Exhibit 2("PEx2") (harassment policy).
<3> The district court found Watson to be an "eminently
credible witness" whereas defendant's witnesses' testimony was
"inconsistent, deliberately vague and not particularly
believable." Order at 4.
<4> Although it did not make this objection below, ESS
argues, without citation, that the court should not have
instructed the jury that it "need not find that Gaby Sutton's
conduct was, in fact, unlawful" without adding that the conduct
must meet "some minimum threshold . . . before a belief would be
considered reasonable." Def.Br. 17-18. A similar argument was
rejected in Fine v. Ryan Int'l Airlines, 305 F.3d 746, 753 (7th
Cir. 2002), which held that the phrase "reasonably believed in
good faith" was not likely to confuse jury.
<5> See also EEOC v. Navy Federal Credit Union, 424 F.3d 397,
406-09 (4th Cir. 2005) (reversing summary judgment on § 704(a)
claim based on evidence that supervisor refused to participate
in scheme to terminate subordinate for discriminatory reasons
and then cover up those reasons); Foster v. Time Warner
Entertainment Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001)
(affirming judgment for plaintiff who, believing that ADA and
company manual required that she accommodate disabled employee,
refused to stop providing accommodation and was fired; court
stated: "[a] manager may be shown to have engaged in protected
conduct if she refused to implement a discriminatory policy or
took some action against it"); Dailey v. Park Place Airport
Parking, No. 4:99CV0403, 2000 WL 641203, *4 (E.D. Mo. May 16,
2000) (denying summary judgment where plaintiff was fired after
refusing to follow directive not to hire any more African-
American employees); cf. Grant v. Hazelett Strip-Casting Corp.,
880 F.2d 1564, 1567-70 (2d Cir. 1989) (finding potential ADEA
violation where plaintiff was fired after writing, obtaining
approval for and then refusing to destroy vacancy announcement
specifying job requirements that plaintiff considered
discriminatory); Goos v. National Ass'n of Realtors, 715 F.
Supp. 2, 3-4 (D.D.C. 1989) (applying Title VII standards to
local law claim, denying summary judgment to employer where
plaintiff was fired after refusing to fire employee on what she
viewed as racial grounds).
<6> A divided panel of the Fourth Circuit recently held that,
to be protected, a plaintiff "must have a reasonably objective
belief that [the opposed conduct] will continue or will be
repeated." Jordan v. Alternative Resources Corp., 447 F.3 324,
332 (4th Cir. 2006); see also id. at 327 (coworker, on seeing TV
report that local snipers had been captured, opined: "They
should put those two black monkeys in a cage with a bunch of
black apes and let the apes f__k them"). The dissent, in
contrast, disagreed that an employee "lacks Title VII protection
for reporting racially charged conduct unless he has a
reasonably objective belief that it will continue or will be
repeated." Id. at 340 (King, J., dissenting). Rather, the
dissent reasoned, "[w]hen the cumulative nature of a hostile
work environment is considered, it is clear that employees are
protected under Title VII from employer retaliation if they
oppose conduct that, if repeated, could amount to a hostile work
environment." Id. at 341. While the Jordan majority rejected
the standard the Commission proposes, the facts in this case
arguably satisfy the Jordan majority's standard since Gaby had
made more than one sexually offensive comment and the jury could
have found that he would have continued doing so had Watson not
stepped forward and complained.
<7> ESS also notes two district court decisions that cite
Breeden. See Def.Br. 14-15 (citing Holmes v. Long I. R.R. Co.,
2001 WL 797951, at *6 (E.D.N.Y. June 4, 2001), and Spadola v.
N.Y. City Transit Auth., 242 F. Supp.2d 284, 291 (S.D.N.Y.
2003)). The complained-of conduct in both cases, however, was
innocuous enough that, even under our interpretation of Breeden,
the plaintiffs' complaints would not constitute protected
opposition.
<8> ESS also argues that plaintiff "should not be entitled to
any damages after her admitted abandonment of a search for
comparable employment," citing Kirsch v. Fleet St., Ltd., 148
F.3d 149, 165 (2d Cir. 1998). Def.Br. 45 (emphasis in
defendant's brief). Kirsch is inapt, however, because, unlike
Watson, the plaintiff there retired.
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