Brief as amicus
June 28, 2006
____________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
____________________________________________________
No. 06-4073
____________________________________________________
RANEE TADEMY,
Plaintiff-Appellant,
v.
UNION PACIFIC CORPORATION, a Utah Corporation, and
UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation,
Defendants-Appellees.
____________________________________________________
On Appeal from the United States District Court for the District of Utah
The Honorable David Sam, Presiding
____________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT
AND IN FAVOR OF REVERSAL
____________________________________________________
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
ELIZABETH E. THERAN
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
A. Course of Proceedings 2
B. Statement of the Facts 3
C. District Court's Decision 15
ARGUMENT 18
THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL OF THE
ACTS OF RACIAL HARASSMENT ALLEGED BY THE PLAINTIFF AS A
SINGLE, ACTIONABLE HOSTILE WORK ENVIRONMENT. 18
A. The Incidents of Harassment Were Sufficiently Related to Constitute a
Single Hostile Work Environment Under Morgan. 18
B. Tademy May Obtain Relief For the Entire Hostile Work Environment,
Including Acts of Harassment Prior to His First Charge. 24
C. Even if the Earlier Acts of Harassment Were Not Part of the Same Hostile
Work Environment, the District Court Should Have Considered Them As
Background Evidence Supporting Tademy's Claim That He Was Subjected to a
Hostile Work Environment During the Charge-Filing Period. 26
CONCLUSION 29
CERTIFICATE OF COMPLIANCE 30
CERTIFICATE OF SERVICE 31
CERTIFICATE OF DIGITAL SUBMISSION 32
TABLE OF AUTHORITIES
CASES
Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) 26
Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003) 19
Duncan v. Manager, Department of Safety, 397 F.3d 1300 (10th Cir. 2005) 17
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) 21
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) 27
Hirase-Doi v. U.S. West Communications,
61 F.3d 777 (10th Cir. 1995) 15-16, 23-24 n.3
McCowan v. All Star Maintenance, Inc., 273 F.3d 917 (10th Cir. 2001) 27
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) passim
Plotke v. White, 405 F.3d 1092 (10th Cir. 2005) 26
Shanoff v. Illinois Department of Human Services,
258 F.3d 696 (7th Cir. 2001) 26-27
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) 26
Vance v. Southern Bell Telephone & Telegraph,
983 F.2d 1573 (11th Cir. 1993) 27-28
West v. Philadelphia Electric Co., 45 F.3d 744 (3d Cir. 1995) 21
Williams v. New York City Housing Authority,
154 F. Supp. 2d 820 (S.D.N.Y. 2001) 28
STATUTES
42 U.S.C. § 1981 2, 15
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. 1, 2
RULES
Fed. R. App. P. 29(a) 1
Fed. R. App. P. 32(a)(5) 30
Fed. R. App. P. 32(a)(6) 30
Fed. R. App. P. 32(a)(7)(B) 30
Tenth Circuit Court of Appeals Emergency Order 5 31, 32
OTHER AUTHORITIES
EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2
EEOC Compliance Manual (1990),
http://www.eeoc.gov/policy/docs/currentissues.html 21
Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual (2006),
http://www.eeoc.gov/policy/docs/race-color.html 28
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency established
by Congress to administer, interpret, and enforce Title VII of the
Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents an important issue
regarding the proper scope of a Title VII claim alleging a hostile work
environment. The Supreme Court has held that a plaintiff may challenge all
incidents that constitute a hostile work environment, including
incidents that would
be untimely if considered separately. The district court ruled, however, that
incidents that occurred more than 300 days before the plaintiff filed
the charge on
which this suit is based could not be considered part of the alleged
hostile work
environment because they were not sufficiently related to the incidents that
occurred within the charge-filing period. In reaching this
conclusion, the court
applied an unduly rigid standard that effectively precludes the plaintiff from
including earlier incidents that are similar to the more recent ones. Because
resolution of this issue will affect the EEOC's enforcement of Title VII, the
Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a).
STATEMENT OF THE ISSUE <1>
Whether the district court erred in failing to consider all of
the acts of racial
harassment alleged by the plaintiff as a single, actionable hostile work
environment.
STATEMENT OF THE CASE
A. Course of Proceedings
This is an appeal from a final judgment of the district court granting
summary judgment and dismissing all of the plaintiff's claims. The plaintiff
initiated this action by filing a complaint on July 21, 2004, alleging that the
defendant violated Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et
seq., and 42 U.S.C. § 1981 by subjecting him to a hostile work
environment on the
basis of his race. Joint Appendix, vol. I ("I-J.A.") 1 (district
court docket entry),
11 (Complaint). The district court granted summary judgment
dismissing all of the
plaintiff's claims on February 10, 2006. I-J.A.9 (district court
docket entry).
Plaintiff's timely appeal followed on March 16, 2006. I-J.A.9 (district court
docket entry), IX-J.A.2089 (Notice of Appeal).
B. Statement of the Facts
Viewed in the light most favorable to the plaintiff, the non-moving party
below, the record reveals the following facts. In 1986, Ranee Tademy
transferred
to Salt Lake City, Utah, to work as a yard conductor for the Union
Pacific Railroad
Company ("UPRR"). II-J.A.126-28, 141, 153-54 (Tademy dep. 12-14, 88, 144-
45). His principal duties involved moving trains up and down the Salt
Lake City
rail yard, in both the North and South parts of the yard. II-J.A.142
(Tademy dep.
89); VI-J.A.934-36 (Tademy dep. 151-52, 154). In this capacity, Tademy
reported to various managers of yard operations ("MYOs"), who in turn
reported to
a manager of terminal operations ("MTO"), who ultimately reported to the Salt
Lake Service Unit Superintendent. VI-J.A.1197-98 (Wiseman dep. 14-17). From
approximately 2000 through early 2004, Cameron Scott was the Superintendent of
the Salt Lake Service Unit. III-J.A.447 (Scott dep. 7).
Beginning in the mid-1990s, Tademy, who is black, experienced a
succession of incidents of racial hostility in the workplace.<2> In
1995, Tademy had
a "radio communication problem" with a subordinate, Shane Marvin, because
Tademy "would communicate with him on the radio and either he would not
respond or he would respond in a delayed manner." II-J.A.328 (Tademy
dep. 488).
When Tademy approached his engineer, Bud Sadler, and asked him if he knew
why Marvin was not responding to him, Sadler replied, "Shane doesn't like black
people." II-J.A.328-29 (Tademy dep. 488-89). Tademy reported the incident to
the MYO in charge at the time, but UPRR conducted no investigation of the
incident until 2001, after Tademy filed his first charge of discrimination. II-
J.A.336-37 (Tademy dep. 496-97); VII-J.A.1391-97 (Method-Walker UALD
letter of 9/13/01).
In 1996, Tademy found the word "nigger" scratched onto his locker. II-
J.A.177-78, 184 (Tademy dep. 207-08, 225). Tademy reported the graffiti to a
manager, but the incident was not investigated. II-J.A.185 (Tademy dep. 226);
VII-J.A.1392 (Method-Walker UALD letter of 9/13/01, at 2). Sometime in 1999,
Tademy heard a locomotive engineer, Mark Bleckert, refer to Lyndon Raphael, an
African American MYO, as "F-ing Kunta Kinte." II-J.A.347 (Tademy dep. 515);
VII-J.A.1397 (Raphael letter of 9/11/01). Tademy reported the
incident to Raphael
and to Ted Lewis, the Superintendent at the time, but no investigation was ever
undertaken and Bleckert was never disciplined or otherwise confronted by
management about the incident. VII-J.A.1308-09 (Raphael dep. 92-93), 1397
(Raphael letter of 9/11/01). Tademy testified that, after the
incident, he had no
further personal contact with Bleckert, but coworkers told him that Bleckert
continued to "make[] a lot of racial jokes." II-J.A.353-54 (Tademy
dep. 521-22).
In 2000, Tademy discovered that someone had written "nigger swimming
pool" on the wall of a bathroom, with an arrow pointing to the toilet bowl. II-
J.A.194 (Tademy dep. 240); VII-J.A.1305 (Raphael dep. 23). Nearby on the wall,
someone had drawn a caricature of a man peering over a wall that Tademy
recognized as a "Sambo" character. II-J.A.194 (Tademy dep. 240); VII-J.A.1306
(Raphael dep. 25-26). Tademy reported the incident to Raphael, who in turn
reported it to a superior. VII-J.A.1306 (Raphael dep. 26-28). Management had
the graffiti removed, without any investigation into who may have been
responsible for creating it. IV-J.A.621-22 (Raphael dep. 29-30).
On January 29, 2001, Tademy arrived for his shift five minutes late. II-
J.A.294 (Tademy dep. 417). David Cagle, an MYO, asked Tademy, in the
presence of at least two other employees, "[w]hat time does this job
go to work,
boy?" II-J.A.294, 296 (Tademy dep. 417, 419). Tademy told Cagle that he found
the statement offensive. II-J.A.296 (Tademy dep. 419). On the same
day, Tademy
reported the incident to his direct supervisor and to the defendant's
EEO Hotline.
II-J.A.297-99 (Tademy dep. 422-24). Cagle apologized to Tademy, but in a later
meeting with a manager Cagle stated that he "didn't understand why 'boy' would
be offensive." II-J.A.296, 300 (Tademy dep. 419, 425); VII-J.A.1387 (Method-
Walker e-mail of 5/4/01). Cagle later told Norris Wiseman, his
supervisor, that he
"didn't feel that he had done anything wrong" by calling Tademy "boy." VI-
J.A.1213 (Wiseman dep. 145).
After Wiseman's investigation into the incident, Scott, in
conjunction with
Wiseman and Yvonne Method-Walker, UPRR's manager of EEO Compliance,
decided on the following as discipline for Cagle: Cagle was required
to take a 30-
day paid leave of absence from his regular position to attend EEO "train-the-
trainer" training in Omaha, Nebraska, and then to travel to different locations
throughout the Salt Lake Service Unit to train UPRR employees on EEO policy.
VII-J.A.1387 (Method-Walker e-mail of 5/4/01); VI-J.A.1175 (Method-Walker
dep. 157-60); III-J.A.456 (Scott dep. 55). Cagle did not perform any training
sessions in the Salt Lake City rail yard. VI-J.A.1186 (Method-Walker
dep. 233).
Cagle's EEO training trip subsequently became a subject of ridicule among
Tademy's coworkers, who were heard to comment that, "if you want a paid
vacation all you have to do is call Ranee Tademy a boy." VIII-J.A.1519 (Tademy
aff. 3); VII-J.A.1244 (Scott dep. 79-80). Method-Walker also
testified that she
was aware of approximately six complaints about use of the word "boy" in the
workplace after Tademy's complaint, and that there may have been more. VI-
J.A.1185 (Method-Walker dep. 218-19).
Tademy testified that, sometime shortly after this incident, a
UPRR manager
told Tademy and his crew that "the railroad is watching you because
you made that
charge against Cagle, and you better watch out because they're
watching you." II-
J.A.311 (Tademy dep. 461). Bill Cox, another manager, subsequently warned
Tademy that Cagle was seeking to have him fired for coming to work a few
minutes late. VI-J.A.985-86 (Tademy dep. 450-51). Both Scott and Wiseman
testified that neither they, nor, to their knowledge, anyone else,
ever warned Cagle
not to retaliate against Tademy for filing his complaint.
VII-J.A.1244 (Scott dep.
78); VI-J.A.1213 (Wiseman dep. 148).
In June 2001, Tademy filed a charge of discrimination with the Utah
Antidiscrimination & Labor Division ("UALD"). IV-J.A.611 (Tademy Charge 1).
In a subsequent letter to the UALD, Tademy identified six incidents of racial
discrimination or harassment, five of which involved him personally: the Marvin
incident, the locker graffiti, the "Kunta Kinte" incident, the "nigger swimming
pool" and Sambo graffiti, and the Cagle "boy" incident. IV-J.A.613 (Tademy
letter of 8/13/01). Tademy had reported all of these incidents when
they occurred,
but UPRR did not investigate any of them until after Tademy filed his
discrimination charge. Id.; VI-J.A.1187 (Method-Walker dep. 237-38), 1223
(Wiseman dep. 230). The sixth racial incident had occurred sometime
in 1999, but
Tademy only became aware of it in the summer of 2001: Raphael disclosed that
someone had written "hang all niggers and jews" on the bathroom wall of the top
end shanty. VII-J.A.1397 (Raphael letter of 9/11/01); II-J.A.202-03
(Tademy dep.
250-51). Raphael had the graffiti removed and reported the incident,
but there was
no further investigation. VII-J.A.1307 (Raphael dep. 38-39), 1397
(Raphael letter
of 9/11/01).
In January 2002, while Tademy's charge was pending before the UALD, an
employee named Charlie White hacked into the UPRR e-mail system and sent out
a message under Scott's name, stating, among other things, "Keep an eye on the
slaves, seriously." VII-J.A.1323 (Holt dep. 47), 1309 (Raphael dep.
94). Someone
made "a significant amount of copies of the computer page, and it was
plastered
very visibly all over the company property," where Tademy saw it. II-J.A.273
(Tademy dep. 376); VII-J.A.1309 (Raphael dep. 95). After Scott
investigated the
incident, White was fired, but he returned to work at UPRR between four and six
months later. VII-J.A.1309 (Raphael dep. 95-96); III-J.A.475-76
(Scott dep. 106-
07). Scott testified that he thought leniency was appropriate in White's case
because White "had a history of hacking his way into different systems within
Union Pacific Railroad, not in . . . any type of malicious way or
trying to alter
anything or find out any type of information; it was more in a
practical joke type
scenario." III-J.A.476 (Scott dep. 107). Scott also noted that White
"was very
apologetic to me and wanted to make sure that I understood that it was
not directed
at me personally." Id.
On June 12, 2002, the UALD issued a finding of no cause on Tademy's
charge. IV-J.A.637-40 (UALD Determination and Order). The EEOC adopted
the UALD's findings and dismissed Tademy's charge, issuing a
right-to-sue notice
on August 22, 2002. VIII-J.A.1693 (EEOC Dismissal & Notice of Rights).
Although Tademy considered filing suit against UPRR after receiving
his right-to-
sue letter, he decided against suing at that time. He explained that,
while his
charge was still pending, "I agreed not to pursue a lawsuit against
Union Pacific if
the company promised it would incorporate annual EEO training into the
mandatory Session B Trainings." VIII-J.A.1518 (Tademy aff. 2). Tademy
related that Scott had told him that UPRR had agreed to "do on-going annual EEO
training," and explained that, "[b]ecause all I ever wanted was to be able to
continue working without being subject to ongoing harassment, I decided not to
file a lawsuit." Id. According to Scott, UPRR canceled its Session B
trainings in
2003 for financial reasons. VII-J.A.1247 (Scott dep. 95-96).
In April 2003, Tademy and a white coworker, Richard Puffer, were required
to undergo three random drug tests in three consecutive weeks. II-J.A.282
(Tademy dep. 385). The Federal Railway Administration requires that
all covered
service employees undergo random drug testing. IV-J.A.670-71 (Lietzen dep. 39-
40). A computer program is supposed to choose randomly which employees are
to be tested on a given date, based on job positions and shifts rather than by
specific employee. IV-J.A.671-73 (Lietzen dep. 40-42). However, UPRR did not
verify whether the employees who were tested at any given time were,
in fact, the
ones selected by the computer. VII-J.A.1337 (Lietzen dep. 80), 1322 (Holt dep.
41). Moreover, white employees who did not work Tademy's shift testified that
they were drug tested once every one to three years, if at all.
VII-J.A.1302 (Heiner
dep. 189) (two or three years ago), 1341 (Peterson dep. 140) (three years ago),
1312 (Rowley dep. 18-19) (never tested); VI-J.A.1214-15 (Wiseman dep. 156-57)
(once per year). No other employees were tested three times in the same month.
On Saturday, July 4, 2003, Tademy entered the south shanty and found a
rope tied into a hangman's noose hanging from a wall clock.
II-J.A.229 (Tademy
dep. 305); IV-J.A.712 (photo); VII-J.A.1407A (photo). Tademy testified that he
was "paralyzed" and "scared" when he saw the noose, and that he went to the
restroom and vomited. VI-J.A.960-61 (Tademy dep. 307-08). Tademy attempted
to report the incident to the yardmaster immediately, but no one was
in the yard
office. II-J.A.231 (Tademy dep. 309). Instead, after Tademy
finished his shift, he
drove to the yardmaster's office and reported the noose to MYO Mike Simmons.
II-J.A.236-37 (Tademy dep. 316-17). Later, Tademy also reported the noose
incident to UPRR's EEO office and to Blaine Bailey, his union
representative. II-
J.A.250-51 (Tademy dep. 334-35).
On that same day, July 4, Simmons notified Scott that Tademy had found a
noose in the south shanty. III-J.A.477 (Scott dep. 112). Scott sent
Mark Rowley, a
UPRR special agent, to investigate. III-J.A.478-79 (Scott dep.
113-14). Rowley
saw the noose and collected evidence from the scene. Id. On July 5,
Rowley and
Wiseman began interviewing employees in an attempt to discover who hung the
noose from the clock. III-J.A.480 (Scott dep. 117). On July 6, Jan
Erickson, an
employee who worked the afternoon shift, informed a manager that it was he who
had hung the rope over the clock. IV-J.A.697 (Erickson dep. 69).
Erickson told
Rowley that he had no malicious intent when he placed the noose on the clock,
stating, "why a rope such as a noose would cause anybody problems is foreign to
me," and "a noose is not offensive or demeaning, in my mind." IV-J.A.700-01
(Erickson dep. 76-77), 702 (id. at 93); VII-J.A.1230 (id. at 78-79). Erickson
claimed that he had found the noose in the rail yard and decided that
he could use it
on his truck, so he hung the noose over the clock in the shanty so
that he would
remember to take it home, but then forgot to take it with him at the
end of the day.
VII-J.A.1229 (Erickson dep. 57-59).
Wiseman and Rowley forwarded the information they obtained from
Erickson to Method-Walker and Kathleen Vance, UPRR's Director of EEO and
Affirmative Action. III-J.A.482 (Scott dep. 121); VII-J.A.1344 (Vance
dep. 4).
Method-Walker and Vance recommended that Erickson's conduct be investigated
as a "level five offense," which would potentially subject Erickson to
termination.
III-J.A.449-50, 482 (Scott dep. 18-19, 121). Wiseman chose Peter
Sheehey as the
hearing officer. III-J.A.483 (Scott dep. 122). After the hearing, Sheehey
recommended that the charges against Erickson be dismissed, but after Scott,
Vance, and Method-Walker reviewed the hearing transcript, they determined that
Erickson should be terminated. VII-J.A.1248 (Scott dep. 131-32).
After UPRR decided to terminate Erickson, several managers lobbied for his
reinstatement. VII-J.A.1320 (Holt dep. 25-26). Erickson's employment with
UPRR was nonetheless terminated, but, approximately six months later, regional
management recommended reinstating him. VII-J.A.1321 (Holt dep. 31). The
EEO department rejected this recommendation. Id. However, Erickson was
eventually reinstated as a result of the appeal process, and returned
to work at
UPRR in 2005. VII-J.A.1330 (Holt dep. 87), 1413 (Jones letter of 4/22/05); VI-
J.A.1219 (Wiseman dep. 200). Erickson was not required to undergo any EEO
training in connection with his reinstatement. VII-J.A.1331 (Holt dep. 89).
After Erickson's termination, UPRR held several half-hour "town hall
meetings" at the Salt Lake City service unit, at which Scott and Method-Walker
spoke to assembled employees about the noose incident and how it violated
UPRR's EEO policy. VII-J.A.1245 (Scott dep. 85-88). In August 2003, UPRR's
harassment policy was amended to include a list of specific examples
of prohibited
items, which included nooses. VII-J.A.1355 (Vance dep. 138). Scott
stated that he
directed his managers and Holt to provide training on this issue.
IV-J.A.746 (Scott
declaration 3,4). However, Wiseman, who was the director of training at the
time of the noose incident, testified that he was not aware of any EEO
training of
the workforce as a result of the incident. VI-J.A.1220 (Wiseman dep. 201).
Tademy testified that, after word got out regarding the noose incident and
Erickson's termination, he began to experience hostile treatment from his
coworkers. II-J.A.257 (Tademy dep. 351). He testified that one
coworker refused
to speak to him, telling him "[y]ou're the reason Jan is going to get
fired." II-
J.A.262 (Tademy dep. 356). Other employees gave him the "cold shoulder." VI-
J.A.970-72 (Tademy dep. 357-59). When Tademy called Bailey, his union
representative, to report his coworkers' treatment of him, Bailey told
Tademy that
his phone was "ringing off the hook" with complaints from coworkers who were
"very upset with [Tademy] because they think that [he] is the one that
got Jan in
this predicament." VI-J.A.972 (Tademy dep. 359). Bailey also told Tademy that
he "[didn't] understand what is offensive by a noose," and that "everybody is
going overboard with everything. When is it going to stop?" II-J.A.264-65
(Tademy dep. 359-60). Bailey told Tademy that he was "getting so paranoid I'm
afraid to tie my shoes in a knot." II-J.A.265 (Tademy dep. 360).
Tademy reported
his coworkers' treatment of him, but not Bailey's response, to
Method-Walker. II-
J.A.265-66 (Tademy dep. 360-61).
In the fall of 2003, Tademy was diagnosed with bilateral epicondylitis, as
well as depression and anxiety relating to the events at work. X-J.A.2128-29
(Hasby notes of 9/4/03). His doctor referred him to a specialist for further
evaluation and treatment of his mental condition. Id. The specialist
diagnosed
Tademy with post-traumatic stress disorder ("PTSD"), major depression, anxiety,
and pain disorder. X-J.A.2095-97 (Etringer dep. 99, 101, 111). Tademy
subsequently applied for medical retirement through the Railroad Retirement
Board ("RRRB"), and was examined by a psychiatrist in June 2004. X-J.A.2131
(QTC MS Report of 6/10/04 at 1). The psychiatrist diagnosed Tademy with major
depression, PTSD, and anxiety disorder. X-J.A.2134 (QTC MS Report at 4). The
RRRB granted Tademy's request for permanent disability retirement on June 24,
2004. VII-J.A.1419-20 (RRRB letter of 6/24/04).
Meanwhile, in January 2004, Tademy filed a second charge of
discrimination with the UALD. IV-J.A.751 (Charge of 1/26/04). The charge
described the noose incident, and noted that "[t]hroughout my Union Pacific
career, I have experienced and reported many racial occurrences to
management."
Id. The latest date of discrimination was listed as August 22, 2003,
and the box
was checked for "continuing action." Id. No determination was made on the
merits of this charge by either the UALD or the EEOC. After receiving
a notice of
right to sue, Tademy commenced this action alleging, inter alia, that UPRR
violated Title VII and 42 U.S.C. § 1981 by subjecting him to a racially hostile
work environment. I-J.A.24-25 (Amended Complaint at 1-2).
C. District Court's Decision
The district court granted UPRR's motion for summary judgment. The court
initially noted that Tademy relied on other employees' complaints of racial
harassment in support of his own claim, but stated, in a footnote, that Tademy
could only rely on evidence "relating to harassment of which he was
aware during
the time he was allegedly subjected to a hostile work environment."
IX-J.A.2077
(Memorandum Decision and Order ("Mem.") at 5 & n.1) (citing Hirase-Doi v. U.S.
W. Commc'ns, 61 F.3d 777, 782 (10th Cir. 1995)) (internal emendations and
quotation marks omitted). The court then observed that, although Tademy
received a right-to-sue letter from the EEOC with respect to the
"Cagle, Bleckert,
Marvin, locker, graffiti, and 2002 e-mail incidents," he failed to
file suit within
ninety days of his receipt of the letter. Id. at 2079 (Mem. at 7).
The court noted
that UPRR argues "that by failing to file a lawsuit within the 90 days, all
allegations of harassment included in the charge are waived." Id.
According to the
court, "as a prerequisite to federal jurisdiction for a Title VII
claim, a plaintiff must
first exhaust his administrative remedies by filing a claim with the
appropriate
administrative agency," and, the court observed, "[o]ther than as noted, it is
undisputed that Tademy failed to exhaust his administrative remedies."
Id. at 2080
(Mem. at 8).
The court also stated that, "even if the 90 day limitations period were
ignored," allegations of conduct occurring more than 300 days before Tademy
filed his second charge "are outside Title VII's . . . statute of
limitations," and are,
therefore, "presumed untimely." Id. (Mem. at 8). The court rejected Tademy's
argument that the Supreme Court's decision in National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002), allowed it to consider "all of [Tademy's]
allegations supporting his hostile work environment claim." Id. at
2081 (Mem. at
9). The district court observed that, according to the Morgan Court,
"because a
hostile work environment claim often consists of a series of incidents that may
extend beyond 300 days, . . . such a claim 'will not be time barred so
long as all
acts which constitute the claim are part of the same unlawful
employment practice
and at least one act falls within the time period.'" Id. (quoting
Morgan, 536 U.S. at
122). The court noted that, according to this Court, Morgan
"emphasizes that there
must be a relationship between the acts alleged after the beginning of
the filing
period and the acts alleged before the filing period." Id. (quoting
Duncan v. Mgr.,
Dep't of Safety, 397 F.3d 1300, 1308 (10th Cir. 2005)). According to
the district
court, "[a]pplying the Duncan/Morgan analysis suggests that
Plaintiff's reported
incidents [other than the noose incident] are outside the 300 day
period and cannot
be considered as part of the same hostile work environment claim" because
"[t]here is no evidence that the acts were perpetrated by the same
employee and the
Court is of the opinion that a jury could not rationally conclude that the acts
occurred with relative frequency given the time period involved, or
that they were
all of the same type such that they collectively constitute one unlawful
employment practice." Id. at 2082 (Mem. at 10). In any case, the
court concluded,
the defendant's "intervening [remedial] action disqualifies those acts
from being
considered as part of Tademy's timely filed claims." Id. at 2084
(Mem. at 12).
According to the court, "the random drug tests and the Erickson
'noose' incident
are Tademy's only timely allegations in support of his Title VII claim." Id.
The court then stated that it "agree[d] with Defendants that none of the
timely incidents Tademy asserts in support of [] his Title VII claim .
. . meet the
requirements for a sustainable hostile work environment claim." Id. at 2085
(Mem. at 13). According to the court, "a jury could not rationally
conclude that
those acts were so pervasive or severe as to alter the terms,
conditions, or privilege
[sic] of Tademy's employment." Id. at 2086 (Mem. at 14). The court
also stated,
without elaboration, that it agreed with the defendant that, "even if
the timely filed
claims did constitute actionable harassment, Plaintiff cannot show employer
liability." Id. at 2087 (Mem. at 15).
ARGUMENT
THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL
OF THE ACTS OF RACIAL HARASSMENT ALLEGED BY THE
PLAINTIFF AS A SINGLE, ACTIONABLE HOSTILE WORK
ENVIRONMENT.
A. The Incidents of Harassment Were Sufficiently Related to Constitute a
Single Hostile Work Environment Under Morgan.
Tademy alleges that he was subjected to a hostile work environment from at
least 1995 until he left UPRR in 2003. Many of the incidents of harassment on
which his claim is based occurred more than 300 days before he filed his second
charge of discrimination. However, the Supreme Court stated in Morgan
that "[i]t
does not matter, for purposes of the statute [of limitations], that some of the
component acts of the hostile work environment fall outside the statutory time
period." 536 U.S. at 117. The Court stated, "Provided that an act
contributing to
the claim occurs within the filing period, the entire time period of
the hostile
environment may be considered by a court for the purposes of determining
liability." Id.; see also Davidson v. America Online, Inc., 337 F.3d
1179, 1185
(10th Cir. 2003) (observing that "[k]ey to the Court's ruling [in
Morgan] was its
determination that the series of acts constituting a hostile work environment
constitute only one unlawful employment practice"). Notwithstanding the clear
directives of the Supreme Court and of this Court, the district court
declined to
consider any of the "untimely" acts of harassment in deciding whether Tademy
made out a triable hostile work environment claim. The district court
applied an
improperly rigid standard in concluding that the earlier acts of
harassment were not
sufficiently related to the harassment which occurred in the
limitations period.
Under a proper analysis, a jury could reasonably conclude that all of
the incidents
of harassment alleged by Tademy were part of a single hostile work environment.
The district court gave the following explanation for its
decision to exclude
evidence of earlier acts of harassment: there is no evidence that "the
acts were
perpetrated by the same employees;" and "a jury could not rationally
conclude that
the acts occurred with relative frequency," or that they were "all of
the same type."
IX-J.A.2082 (Mem. at 10). However, with the exception of the drug testing, the
incidents alleged by Tademy are "of the same type." All of the incidents that
occurred more than 300 days before Tademy's second charge involve the use of
threatening or demeaning racial slurs relating to African-Americans, whether
delivered orally or written as graffiti. Although the epithets varied
over time, they
were sufficiently similar to be of the "same type." A reasonable jury could
therefore find that these earlier incidents were sufficiently related
to the noose
incident, which occurred within the charge-filing period, to make them
part of the
same hostile work environment. The hangman's noose, while a non-verbal act,
evokes the same sort of racial hostility manifest in the earlier
graffiti and racist
remarks. In fact, one of the earlier incidents about which Tademy complained
involved the phrase "hang all niggers and jews," a similar message to
that later
conveyed by the noose. Accordingly, the district court erred in
finding that the
earlier incidents were not of the "same type" as the noose incident so
that they
could be found to constitute a single hostile working environment.
The district court also faulted Tademy for failing to show that
the various
incidents of harassment were perpetrated by the same individual or
individuals.
However, a plaintiff need not show that earlier acts of harassment
were committed
by the same individuals as were later acts in order to establish that
they were part
of the same hostile work environment. Tademy alleges that he was
forced to work
in an environment where he was exposed to repeated episodes of racist
graffiti and
comments, culminating in the placement of a noose in the workplace. From his
perspective, it makes no difference whether these acts were
perpetrated by a single
individual or they were each done by a different person; in either
case he could
reasonably conclude that he was exposed to a hostile work environment
throughout
the course of his employment. See West v. Phila. Elec. Co., 45 F.3d
744, 756 (3d
Cir. 1995) (observing that "[n]owhere in the case law establishing
[the standard for
a hostile work environment] is there a requirement that the
discriminatory conduct
of each co-worker, who participated in creating the hostile environment, be
pervasive and/or on-going"). As both the courts and the Commission
have stated,
the existence of a hostile work environment is to be viewed from the
perspective of
the victim. See, e.g., Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.
1991) ("[W]e
believe that in evaluating the severity and pervasiveness of sexual
harassment, we
should focus on the perspective of the victim."); EEOC Policy Guidance on
Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual
(1990), http://www.eeoc.gov/policy/docs/currentissues.html ("The reasonable
person standard should consider the victim's perspective and not stereotyped
notions of acceptable behavior."). Moreover, it is particularly
unfair to penalize
the plaintiff for his inability to establish the identity of the
harasser or harassers in
a case like this one, where much of the harassment was perpetrated anonymously,
and, despite Tademy's prompt complaints, UPRR made no effort to investigate the
incidents. Indeed, for all we know, some or all of the graffiti
incidents may have
been perpetrated by Erickson, the employee who admitted placing the
noose in the
workplace.
Finally, contrary to the implication in the district court's
decision, Tademy
was not required to show that the harassment was continuous in order
to establish
that earlier incidents were related to the incidents which were the
subject of a
timely charge. In Morgan, the Supreme Court expressly noted that a
break in the
pattern of harassing conduct does not preclude a plaintiff from
relying on earlier
events, as long as they are related to harassment occurring within the
charge-filing
period. The Court gave the following example: "Acts contribute to a hostile
environment on days 1-100 and on day 401, but there are no acts between days
101-400." 536 U.S. at 118. According to the Court, "it does not
matter whether
nothing occurred within the intervening 301 days so long as each act
is part of the
whole." Id. Unless the later act "had no relation" to the earlier
acts, all the acts
could be found to be part of a single hostile work environment. Id.
Accordingly,
the fact that there were gaps between some of the incidents of
harassment alleged
by Tademy does not mean that they cannot constitute a single hostile work
environment.
The district court also held that Tademy's allegations did not amount to a
single hostile work environment because "UPRR's intervening action disqualifies
[the earlier] acts from being considered as part of Tademy's timely
filed claims."
IX-J.A.2084 (Mem. at 12 (citing Morgan, 536 U.S. at 118)). However,
none of the
remedial actions taken by UPRR in the period between the earliest graffiti
incidents and the noose incident is of the type that would, as the
Supreme Court
commented in Morgan, render the noose incident "no longer part of the same
hostile environment claim." 536 U.S. at 118. There is no evidence in
the record
that UPRR did anything at all in response to any of the incidents
prior to the "boy"
incident in 2001, other than to remove the graffiti. As to UPRR's response to
Cagle's calling Tademy "boy," a reasonable jury could conclude that the
"discipline" was considered so laughable by Tademy's coworkers that they joked
about it being an excuse for a paid vacation. Similarly, as to the
e-mail incident, a
jury could conclude that UPRR's response to White's conduct was insufficient to
alter the racially hostile work environment at the Salt Lake City
yard, given that
White was reinstated shortly after the incident and that UPRR's discipline and
reinstatement of White focused mainly on his hacking into the computer system,
rather than the racial content of the e-mail itself. Accordingly, Tademy's
allegations could properly be viewed as constituting a single hostile work
environment of the type described in Morgan.<3>
B. Tademy May Obtain Relief For the Entire Hostile Work Environment,
Including Acts of Harassment Prior to His First Charge.
The defendant argued in district court that Tademy waived his right to sue
based on any of the incidents identified in his first charge by
failing to file suit
within ninety days after his receipt of the right-to-sue letter on
that charge. IX-
J.A.2079-80 (Mem. at 7-8). It is not clear from the district court's
decision to
what extent it credited this argument, but, in any case, this
rationale has no merit in
the context of a hostile work environment claim. To begin with, if Tademy had
never filed his first charge at all, but had instead only filed the
charge that he filed
in 2004, he would clearly be entitled, under Morgan, to recover for the entire
hostile work environment.<4> In the context of a hostile work
environment claim,
there is no basis in Morgan, or in any other precedent, to conclude
that a plaintiff's
failure to file suit on an earlier charge should cut off the
employer's liability in the
middle of what the Supreme Court has characterized as a single,
ongoing violation.
See Morgan, 536 U.S. at 117 (observing that "the entire hostile work
environment
encompasses a single unlawful employment practice"); see also id. ("As long as
the employer has engaged in enough activity to make out an actionable hostile
environment claim, an unlawful employment practice has 'occurred,'
even if it is
still occurring. Subsequent events, however, may still be a part of
the one hostile
work environment claim and a charge may be filed at a later date and still
encompass the whole."). Furthermore, there is no policy justification for
penalizing Tademy because he took preliminary steps toward challenging his
treatment earlier in the sequence of events comprising the single hostile work
environment - thereby giving his employer earlier notice of the problem and an
opportunity to correct it without the necessity of litigation.<5>
C. Even if the Earlier Acts of Harassment Were Not Part of the Same
Hostile Work Environment, the District Court Should Have Considered
Them As Background Evidence Supporting Tademy's Claim That He
Was Subjected to a Hostile Work Environment During the Charge-Filing
Period.
Even if all of the incidents alleged in this case were not deemed to be a
single actionable hostile working environment, the district court erred by not
considering those incidents as background evidence in deciding whether
there was
a hostile work environment within the limitations period. Morgan, 536
U.S. at 113
(observing that, in the context of discrete acts, Title VII does not
"bar an employee
from using the prior acts as background evidence in support of a
timely claim");
Plotke v. White, 405 F.3d 1092, 1106-07 (10th Cir. 2005) ("Plaintiffs are not
precluded from introducing quite probative evidence of earlier acts of
discrimination to support a claim of current discriminatory intent,
even if prior
events are beyond the limitations period.") (internal citations and
quotation marks
omitted); see also, e.g., Crowley v. L.L. Bean, Inc., 303 F.3d 387,
395 (1st Cir.
2002) (in harassment context, observing that, "in the wake of Morgan,
the jury . . .
could consider [the harasser's] conduct prior to [the statutory time period] as
'relevant background evidence'") (quoting United Air Lines, Inc. v. Evans, 431
U.S. 553, 558 (1977)); Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 705
(7th Cir. 2001) ("[A]lthough the harassing conduct that occurred before the
limitations period is time-barred and not actionable, we may consider
that conduct
. . . to illuminate the nature of the hostility involved in the
actionable conduct.").
When all of the evidence of harassment is considered, there is sufficient
evidence to support a finding that Tademy was subjected to a hostile work
environment. Title VII is violated when "the workplace is permeated with
discriminatory intimidation, ridicule, and insult . . . that is
sufficiently severe or
pervasive to alter the conditions of the victim's employment and
create an abusive
working environment." Harris v. Forklift Sys., Inc, 510 U.S. 17, 21 (1993)
(internal citations and quotation marks omitted). As this Court has
observed, "[w]e
have repeatedly stated that in a case alleging a violation of Title VII and the
presence of a racially hostile work environment, the existence of [racial]
harassment must be determined in light of the record as a whole, and
the trier of
fact must examine the totality of the circumstances, including the
context in which
the alleged incidents occurred." McCowan v. All Star Maintenance,
Inc., 273 F.3d
917, 925 (10th Cir. 2001) (alteration in original) (internal citations
and quotation
marks omitted).
A hangman's noose is an especially offensive and incendiary symbol of
racial hatred. See, e.g., Vance v. S. Bell Tel. & Tel., 983 F.2d
1573, 1583 (11th
Cir. 1993) (Fay, J., dissenting) ("The noose in [the workplace]
context is a symbol
not just of racial discrimination or of disapproval, but of terror. .
. . No less than the
swastika or the Klansman's hood, the noose in this context is intended
to arouse
fear."); Williams v. N.Y. City Hous. Auth., 154 F. Supp. 2d 820, 824-25
(S.D.N.Y. 2001) ("Indeed, the noose is among the most repugnant of all racist
symbols, because it is itself an instrument of violence. . . . The
hangman's noose
remains a potent and threatening symbol for African-Americans, in part because
the grim spectre of racially motivated violence continues to manifest itself in
present day hate crimes."). The noose in this case, viewed in light
of the extensive
and continued history of racial problems at UPRR and specifically involving
Tademy, constitutes a timely act sufficient to support Tademy's claim of a race-
based hostile work environment. See Section 15, Race & Color Discrimination, 2
EEOC Compliance Manual (2006), http://www.eeoc.gov/policy/docs/race-
color.html (example of conduct sufficiently severe to alter employee's working
conditions consisting of "racially charged dispute" and use of epithet "boy"
followed by a hangman's noose in the workplace). In characterizing
the noose as
"a rope Plaintiff interpreted as a noose in 2003," the district court
lost sight of the
fact that it was considering a motion for summary judgment rather than making
findings of fact. For summary judgment purposes, all inferences
supported by the
record are to be drawn in favor of the nonmoving party, and, thus, the
rope in this
case should properly have been considered to be a noose.
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
reversed and the case remanded for further proceedings.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
______________________________
ELIZABETH E. THERAN
Attorney
New York State Bar No. 4020079
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 6,975 words, 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 proportionally spaced typeface using Microsoft Word 2003 in
Times New Roman 14 point.
Elizabeth E. Theran
Attorney
New York State Bar No. 4020079
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov
Dated: June 28, 2006
CERTIFICATE OF SERVICE
I, Elizabeth E. Theran, hereby certify that I filed one original
and seven hard
copies of the foregoing brief with this Court this 28th day of June,
2006, by first-
class mail, postage pre-paid. I also certify, in accordance with this Court's
Emergency General Order 5, that I furnished a digital submission of
the foregoing
brief, in PDF format, to the Clerk of Court at
esubmission@ca10.uscourts.gov. I
also certify that I served two hard copies of the foregoing brief this
28th day of
June, 2006, by first-class mail, postage pre-paid, and one digital
version in PDF
format via e-mail, to the following counsel of record:
Counsel for Plaintiff-Appellant: Counsel for Defendant/Appellee:
Erika Birch, Esq. Robert O. Rice, Esq.
Strindberg Scholnick & Chamness Ray, Quinney & Nebeker
426 North 300 West 79 South Main St., Suite 700
Salt Lake City, UT 84103 P.O. Box 45385
(801) 359-4169 Salt Lake City, UT 84145-0385
erika@utahworklaw.com (801) 532-1500
rrice@rqn.com
Elizabeth E. Theran
Attorney
New York State Bar No. 4020079
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov
CERTIFICATE OF DIGITAL SUBMISSION
I, Elizabeth E. Theran, hereby certify in accordance with this Court's
Emergency General Order 5, that:
1. All required privacy redactions have been made (NONE);
2. On June 28, 2006, I will send an e-mail containing the
foregoing brief in
digital (PDF) form to the Clerk of Court at
esubmission@ca10.uscourts.gov, and to
counsel for the parties. The document submitted in digital form is an
exact copy of
the written document filed with the Court, with the exception of all
signatures,
which appear in accordance with Amended Emergency Order 5, section (c)(1).
3. The digital submission has been scanned for viruses using Symantec
Anti-Virus Corporate Edition version 9.0.3.1000 (most recent update
6/26/06) and,
according to that program, is free of viruses.
Elizabeth E. Theran
Attorney
New York State Bar No. 4020079
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
elizabeth.theran@eeoc.gov
June 28, 2006
***************************************************************************
<<FOOTNOTES>>
<1> We take no position with respect to any other issue presented in this
appeal.
<2> The evidence in the record reflects that there were numerous incidents of
racial graffiti and symbols at the Salt Lake City yard both before and
after the
incidents identified by Tademy. One employee testified that he had seen the
following graffiti in the UPRR shanties during the period of his employment, at
least ten or twelve years: "No niggers here," "KKK," "Go home, boy," "a circle
with an 'N' in it, or a picture on the window of a face that would
represent a black
person," "jigaboo," "coons," "spearchucker," and writing on the walls about
"Mexicans" and "beaners." VI-J.A.1008, 1010, 1014 (Price dep. 20, 28,
47). The
employee also testified that he had seen the word "nigger" written in
the dirt on
locomotives that needed to be washed, and that he had been told "you
ride nigger
today" on the days when he was assigned to ride on the back of a switch engine
rather than in the front. VI-J.A.1011, 1013 (Price dep. 31, 38).
Another employee
testified that he had seen the term "nigger" written on railroad
switch stands, and
that "they've been reported and nothing has been done about them."
VII-J.A.1262
(Niau dep. 35-36). Norris Wiseman, a supervisor, testified that he
had seen "racist
graffiti on boxcars as they go through town," including the word
"nigger," which
he had seen "many, many times." VI-J.A.1218 (Wiseman dep. 186-87). Wiseman
testified that UPRR generally did "nothing" about the racist graffiti
on boxcars, but
that they tried to cover up or paint over any "four-letter words."
Id. (Wiseman dep.
187).
<3> The evidence of incidents of racial hostility at UPRR other than those
identified by Tademy, described supra note 2, is also relevant to the issue of
UPRR's awareness of the extent of the problem and the adequacy of its
response to
the incidents involving Tademy. Insofar as the district court ruled
that, based on
Hirase-Doi, evidence of other employees' harassment as to which the
plaintiff was
contemporaneously unaware may not be considered at all, we note that this was
erroneous. In the passage in Hirase-Doi cited by the district court,
this Court was
addressing the issue of whether an employee considers a work environment to be
subjectively offensive, and noted that the plaintiff "could not
subjectively perceive
[the harasser's] behavior towards others as creating a hostile work environment
unless she knew about that behavior." 61 F.3d at 782. This Court did
not hold,
however, that evidence of the harassment of others, of which the plaintiff was
unaware at the time, was categorically irrelevant to every plaintiff's claim.
<4> The district court stated, cryptically and without further
elaboration, that
"[o]ther than as noted, . . .Tademy failed to exhaust his
administrative remedies."
IX-J.A.2080 (Mem. at 8). However, Tademy's 2004 charge, which explicitly
states that the noose was only the latest of "many racial occurrences"
that he had
experienced and reported "throughout [his] Union Pacific career," was
sufficient to
support a challenge to all of the alleged racial harassment.
<5> If an employer were unfairly misled by a plaintiff's failure to act on a
notice of right to sue into thinking that a problem was resolved, the
employer could
assert a laches defense. See Morgan, 536 U.S. at 121 (when a plaintiff
unreasonably delays filing a charge, the employer has a variety of equitable
defenses available, including laches). Here, however, Tademy asserts that he
refrained from filing suit earlier based on UPRR's representation that
it would take
steps to alleviate the racial harassment, and UPRR failed to do what
it promised.
Accepting this assertion as true, for purposes of summary judgment, UPRR would
not be able to establish an equitable defense to Tademy's inclusion of
the earlier
harassment in his suit.
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