June 12, 2006
Brief as amicus
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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