EEOC v. Boeing Co. (9th Cir.)
Brief as appellant
May 2, 2006
No. 05-17386
___________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
KELLEY J. MILES,
Plaintiff-Intervenor-Appellant
v.
THE BOEING COMPANY and
BOEING AEROSPACE OPERATIONS, INC.,
Defendants-Appellees
__________________________________________________________
On Appeal from the United States District Court
for the District of Arizona
Hon. Paul G. Rosenblatt, District Judge
__________________________________________________________
BRIEF OF PLAINTIFF-APPELLANT
THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
__________________________________________________________
JAMES L. LEE U.S. EQUAL EMPLOYMENT
Deputy General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
LORRAINE C. DAVIS 1801 L Street, N.W., Room 7024
Acting Associate General Counsel Washington, D.C. 20507
(202) 663-4870
JAMES M. TUCKER James.Tucker@EEOC.gov
Appellate Attorney
TABLE OF CONTENTS
Table of authorities . . . . . . . . . . . . . . . . . . . . .iii
Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1
Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2
Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . .3
District Court Decision. . . . . . . . . . . . . . . . . . . . 15
Summary of the Argument. . . . . . . . . . . . . . . . . . . . 19
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I. Standard of review . . . . . . . . . . . . . . . . . 20
II. A reasonable trier of fact could conclude on the record before
the district court that Miles was subjected to sex harassment for
which Boeing is liable . . . . . . . . . . . . . . . . . . . . 22
A. There is abundant evidence that because of her sex, Miles
was subjected to a hostile work environment by her
coworkers.. . . . . . . . . . . . . . . . . . . 23
B. There is abundant evidence that Boeing was aware of the
sex harassment and failed to take prompt corrective action.34
III. A reasonable trier of fact could conclude on the record before the
district court that Boeing is liable for retaliatory conduct directed
at Miles . . . . . . . . . . . . . . . . . . . . . . 38
A. The evidence is sufficient to support a reasonable trier of
fact's conclusion that Boeing management retaliated
against Miles . . . . . . . . . . . . . . . . . 39
B. The evidence also shows Miles was subjected to retaliatory
coworker harassment of which Boeing was aware and
failed to take prompt corrective action . . . . 42
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Addendum
42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . .A-1
42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . .A-2
Certificate of Compliance
Certificate of Service
Table of Authorities
Cases Page(s)
Brooks v. City of San Mateo,
229 F.3d 917 (9th Cir. 2000). . . . . . . . . . . . . . . 46
Burlington Indus., Inc. v. Ellerth,
532 U.S. 742 (1998) . . . . . . . . . . . . . . . . . . . 34
Costa v. Desert Palace, Inc.,
299 F.3d 838 (9th Cir. 2002). . . . . . . . . . . . . . . 32
Delta Sav. Bank v. United States,
265 F.3d 1017 (9th Cir. 2001) . . . . . . . . . . . . . . 21
Dominguez-Curry v. Nev. Transp. Dep't,
424 F.3d 1027 (9th Cir. 2005) . . . . . . 22, 23, 26-29, 32
EEOC & Miles v. The Boeing Co., et al.,
No. 03-1210, Order (D. Ariz. Sept. 28, 2005)2, 15-18, 32, 34, 41, 46, 50
Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991). . . . . . . . . . . . . 38, 50
Faragher v. City of Boca Raton,
524 U.S. 787 (1998) . . . . . . . . . . . . . . . 24, 44, 47
Fuller v. City of Oakland,
47 F.3d 1522 (9th Cir. 1995). . . . . . . . . 13, 34, 35, 38
Gregory v. Widnall,
153 F.3d 1071 (9th Cir. 1998) . . . . . . . . . . . . . . 24
Harris v. Forklift Sys., Inc.,
510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . 23, 44
Lindsey v. SLT Los Angeles, LLC,
432 F.3d 954 (9th Cir. 2005). . . . . . . . . . . . . . . 22
McGinest v. GTE Serv. Corp.,
360 F.3d 1103 (9th Cir. 2004) . . . . . . . . . . .34-36, 49
Nichols v. Azteca Rest. Ents., Inc.,
256 F.3d 864 (9th Cir. 2001). . . . . 24, 28, 29, 31, 36, 47
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998). . . . . . . . . . . . . . 22, 28, 31, 33
Porter v. California Dep't of Corr.,
419 F.3d 885 (9th Cir. 2005). . . . . . . . . . . 27, 29, 32
Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000) . . . . .39, 40, 42, 43, 46-48
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . 21, 41
Swenson v. Potter,
271 F.3d 1184 (9th Cir. 2001) . . . . . . 23, 34, 35, 38, 50
Swinton v. Potomac Corp.,
270 F.3d 794 (9th Cir. 2001). . . . . . . . . . . . . . . 34
Statutes
42 U.S.C. § 2000e-2(a)(1) (attached) . . . . . . . . . . . 22, 44
42 U.S.C. § 2000e-3(a) (attached). . . . . . . . . . . . . 38, 44
Rules and Regulations
Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . 21
Statement of Jurisdiction
Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission
("Commission") filed this lawsuit in the United States District Court for the
District of Arizona against Defendants-Appellees The Boeing Company and
Boeing Aerospace Operations, Inc. (collectively "Boeing") pursuant to the
Commission's enforcement authority under Title VII of the Civil Rights Act of
1964, codified at 42 U.S.C. § 2000e et seq. ("Title VII"). The district court had
jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1337, 1343, and
1345, and 42 U.S.C. § 2000e-5(f)(3), which confer upon the district courts
jurisdiction over actions brought under Title VII. The district court entered final
judgment against the Commission on October 4, 2005. Excerpts of Record
("E.R.") 143 (District Court Docket Number ("R.") 128). The Commission filed a
timely notice of appeal on December 2, 2005. E.R.144 (R.137). See Fed. R. App.
P. 4(a)(1)(B) (when an agency of the United States is a party, notice of appeal may
be filed within sixty days after the judgment is entered). Accordingly, this Court
properly has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
Statement of the Issues<1>
I. Whether a reasonable trier of fact could conclude on the record before the
district court that Miles was subjected to harassment, because of her sex, for
which Boeing is liable.
II. Whether a reasonable trier of fact could conclude on the record before the
district court that Miles was subjected to retaliation, including a retaliatory
hostile work environment by her coworkers, for which Boeing is liable.
Statement of the Case
On June 25, 2003, the Commission filed its Complaint against Boeing in the
United States District Court for the District of Arizona. E.R.1 (R.1). The
Commission alleged that Kelley Miles, an employee of Boeing and the charging
party in this case, had been subjected to sex harassment and retaliation in violation
of Title VII, and that Boeing is liable for this unlawful conduct. Id. Boeing filed
its Answer on July 15, 2003. R.6. On July 24, 2003, Miles moved to intervene in
the action, and on September 18, 2003, the district court granted the motion. R. 7,
10. Miles filed her Complaint-in-Intervention on September 19, 2003, and Boeing
filed its Answer to the Complaint-in-Intervention on October 14, 2003. R.11, 12.
After the close of discovery, Boeing moved for summary judgment on all of the
Commission's and Intervenor's claims. R.106. On September 30, 2005, the
district court entered an Order granting Boeing's motion for summary judgment.
E.R.128 (R.127).
Statement of Facts
Kelley Miles is a sheet metal mechanic by trade. E.R.49 (Miles Aff't ¶ 33).
She became employed by Boeing in 1997, working in the "Pre-Mod" group
responsible for tearing down older Apache helicopters in preparation for
retrofitting them to newer Apache Longbow specifications. Id. (Miles Aff't ¶ 34).
Miles was on a small team in Pre-Mod that performs the "hole fill" function,
plugging holes on the older helicopters with different types of fasteners. E.R.49-
50 (Miles Aff't at ¶¶ 37-38). The job primarily involves riveting. Id. (Miles Aff't
at ¶ 38). The majority of employees in the Pre-Mod group are men, with only four
women out of fifteen employees in 1997, two women out of thirty to forty
employees in 1998, and two women out of forty to fifty employees in 2004.
E.R.49 (Miles Aff't ¶¶ 35-36).
Kevin Nunimaker, the Production Supervisor, was responsible for directing
the work activities for both Pre-Mod shifts, and served as first shift supervisor.
E.R.124 (Nunimaker Dep. at 26-27). Lloyd Hatter, the second shift supervisor of
Pre-Mod, was succeeded in March 2001 by Jeff Luidhardt. Id. (Nunimaker Dep.
at 28). Miles started out in Pre-Mod in the first shift, but in October 1999
switched to the second shift. E.R.10 (Miles Dep. at 81, 83). However, she
continued to have contact with first shift Pre-Mod employees during the overlap of
the first and second shifts, as well as during overtime and weekend work. E.R.12
(Miles Dep. at 105).
When Miles began working for Boeing, she was the only female mechanic
with experience working with sheet metal, and her male coworkers John Byrd,
Todd Blough, and Fred Cruz refused to accept her. E.R.37 (Miles Dep. at 273).
These coworkers, as well as others including Vic Bonomo and Manny Cervantes,
would criticize Miles' work and subject it to constant scrutiny, ignore her
suggestions for improvements, accuse her of breaking things at work and hiding
them, draw witch faces on her identification badge, and tell others that she was a
lesbian and a "man-hater." E.R.19, 37 (Miles Dep. at 158-60, 273-74).
From 1998 through June 2001, Cervantes on an almost daily basis would
stick his tongue out at Miles, wiggle it, and tell Miles that she "wanted" him and
"loved" him. E.R.12 (Miles Dep. at 104-05). When Miles moved to the second
shift in Pre-Mod, this conduct continued during the shift overlap and on weekends.
Id. Cervantes would routinely grab Miles, hug her, rub her shoulders, stick his
tongue out at her, and blow kisses at her. E.R.12, 50-51 (Miles Dep. at 103-04;
Miles Aff't ¶ 47). In early 2001 Cervantes once tried to force Miles to kiss him.
E.R.12 (Miles Dep. at 106). On one occasion Cervantes picked Miles up, threw
her over his shoulder and ran carrying her through the workplace "like a bag of
potatoes." E.R.12-13 (Miles Dep. at 109-10). Miles would tell Cervantes to
knock it off and to get away from her, or to get his hands off her, but her
objections had no effect. E.R.12 (Miles Dep. at 107-09).
Cervantes had a history of ongoing sexual harassment of which Boeing
management was well aware. Nunimaker contacted Boeing HR in 1999 regarding
a complaint by one of Cervantes' male coworkers that Cervantes was making
sexual comments to him. E.R.122-23 (Nunimaker Dep. at 9-10). Cervantes also
sexually harassed another of Miles' coworkers—a woman whom he repeatedly
grabbed and hugged. E.R.14 (Miles Dep. at 118). Both coworkers complained
and Boeing gave Cervantes a written warning for his conduct toward the male
coworker, but did not discipline Cervantes at all for his harassment of the female
coworker. E.R.14, 103 (Miles Dep. at 119; Willis Dep. at 29).
Cervantes was transferred into Miles' work area after having four
complaints of sexual harassment lodged against him in his prior work area<2>.
E.R.13 (Miles Dep. at 115). Miles complained to Hatter about much of the
harassing conduct, including being called a bitch. E.R.19 (Miles Dep. at 159-60).
There is no indication that Hatter acted on the complaints. Miles also complained
to Nunimaker about "obnoxiousness," "slander," and other harassing conduct by
her coworkers. E.R.18-19 (Miles Dep. at 156-60). Nunimaker responded to her
complaints by calling Miles a troublemaker. E.R.39 (Miles Dep. at 285-86).
While Miles complained to Hatter and Nunimaker about much of her coworkers'
harassing behavior, she did not specifically state that Cervantes was sexually
harassing her. E.R.18-19 (Miles Dep. at 156-160). There is no evidence that
either supervisor reported Miles' harassment complaints to Boeing's HR
department or anyone else in Boeing Management.
The harassment of Miles intensified beginning in early 2001. E.R.18, 20
(Miles Dep. at 153, 165). Byrd and others repeatedly called Miles a bitch,
removed tools without permission from the tool box she regularly used, and broke
her tools. E.R.19-20, 24-25, 30-31 (Miles Dep. at 158, 161, 164-65, 192-94, 222-
23). When she complained to Nunimaker about the missing and broken tools, he
simply responded "what do you want me to do? I've talked to them." E.R.25
(Miles Dep. at 194). On one occasion, Byrd took the tool box set up for Miles'
hole fill job—a job Byrd did not perform—and refused to give it to Miles. E.R.23
(Miles Dep. at 182-83). When Miles complained to Nunimaker, both he and Byrd
shouted at her that it was not her "fucking toolbox." Id. (Miles Dep. at 183).
When Miles complained that her coworkers were taking special fasteners that had
been ordered for her work and mixing them up, Nunimaker simply responded by
calling her a "fucking crybaby." E.R.38-39 (Miles Dep. at 281-82, 284). Miles
testified that Byrd also took a blueprint she used (called an "ME Plan") to prevent
her from performing her job. E.R.19, 20-21, 55 (Miles Dep. at 161-63, 169-70;
Miles Aff't Att. 7). When Miles complained to Nunimaker about this and asked
him when he would "put a stop to all this stuff going on," he replied that he had
already "talked to the guys." E.R.20 (Miles Dep. at 164-65). However, the
harassment continued.
Byrd told Miles that he could "work circles around [her] ass," which Miles
took to be a reflection of his jealousy and resentment of her being "a woman who
holds her own." E.R.19 (Miles Dep. at 160). Miles also alleged that Byrd (along
with Cervantes) was responsible for an incident in May 2001 when the tool cart
she routinely used was "trashed" when someone dumped over her work materials,
put trash on the cart, and wrapped the mess in tape. E.R.22 (Miles Dep. at 177-78,
180). When Miles showed the cart to Luidhardt, he told Nunimaker about the
conduct but Nunimaker did not pass the information along to Boeing HR—rather,
he just "talked to Manny and the guys." E.R.53, 125 (Miles Aff't Att. 2;
Nunimaker Dep. at 46). Despite Nunimaker's supposedly "talking to the guys,"
Miles' tool cart was subsequently trashed on several other occasions. E.R.22
(Miles Dep. at 177).
On one occasion, Blough shook the tail of a helicopter while Miles was
standing on top, forcing her to sit to avoid falling some six feet to the ground.
E.R.32 (Miles Dep. at 239-42). Miles stated that she saw Blough bend down by
the tail of the helicopter and act like he was going to shake it. Miles looked at him
and shook her head, but Blough shook the tail anyway and then laughed about it.
Id. (Miles Dep. at 241-42). Miles also stated that once when she was speaking
with a male coworker, Blough walked by and commented that she "was probably
fucking him now." E.R.34, 61 (Miles Dep. at 251; Miles Aff't Att. 11). In late
May/early June 2001 Blough told another coworker that Miles was getting away
with "a lot of stuff" and that she gave "a good blowjob." E.R.127 (Blough Dep. at
15). The coworker reported this to Miles. E.R.15 (Miles Dep. at 130-31). Miles
reported this to her supervisor, Luidhardt, and also told him that she wanted the
conduct reported to HR. E.R.13-17 (Miles Dep. at 138, 140). When Luidhardt
confronted Blough about the conduct, Blough admitted it, and Luidhardt told him
that if he heard that such conduct continued he "would follow through with
company corrective action." E.R.120 (Luidhardt Dep. at 38). Luidhardt did not
contact HR regarding the incident.
On June 5, 2001, after taking sick leave because she was a "nervous wreck"
from all the harassment, Miles complained in writing directly to Boeing's HR
department about Cervantes' conduct, as well as about harassing conduct by Byrd
and Blough. E.R.59 (Miles Aff't Att. 8). In her June 5, 2001, written complaint to
Boeing HR, Miles stated that since January 2001 she had been harassed, her tools
had been taken and/or broken, her cart had been trashed by Byrd and Cervantes,
and Blough had started ugly sexual rumors about her. Id. She stated that she had
repeatedly told Nunimaker that this harassment was interfering with her job
performance, but he had done nothing to stop the harassment. Id. She also
reported Byrd taking her ME Plan, and Blough shaking the helicopter while she
was on top. Id. In her charge filed with the Commission the same day, Miles
referenced the same events as in her letter to Boeing HR, and added that despite
her repeated complaints to her managers, Boeing not only failed to act to stop the
conduct, they subjected her to demeaning and belittling treatment. E.R.6 (R.107
Ex. 7). Two days after Miles filed her written complaint and charge, Bonomo told
her that "the fucking war is on now." E.R.45 (Miles Dep. at 389).
Some days later, Miles visited Dick Mead in Boeing's HR department to
find out why she had not heard from Boeing HR on her complaint, and to report
Bonomo's comment. Id. (Miles Dep. at 388-89). Mead told her that he did not
want to hear from her about anything other than the conduct of Cervantes.
E.R.65-66 (Miles Aff't Att. 14). Mead also told her that her complaint "was going
all the way to the top now" and that she "was going to create a lot of enemies" by
filing her complaint. E.R.45-46 (Miles Dep. at 388, 391-92). Miles interpreted
Mead's comments as suggesting that she withdraw her complaint. E.R.46 (Miles
Dep. at 392).
Mead investigated Miles' complaint about Cervantes, and terminated him.
After being directed by Dick Clark, an EEO officer with Boeing, to investigate
Miles' other complaints, Mead investigated Blough's "blowjob" comment, issued
Blough a reprimand, and placed him on probation for six months. E.R.127
(Blough Dep. at 17). Mead also offered to move Miles to another work area, but
she declined the offer. E.R.43 (Miles Dep. at 324-25). Around this same time
Clark conducted a meeting with the employees in Pre-Mod on the subject of
harassment and sexual harassment, in which he commented that "some people will
pick on other people" but that is just their "personality" and "you can't do
anything about it." E.R.85 (Miles Aff't Att. 35). When Clark was challenged that
such conduct is harassment which should not be allowed, he responded by
agreeing that it was a form of harassment "but you can't change people's
personalities." Id.
On July 12, 2001, Miles complained to Clark that Mead had failed to follow
up on her other allegations. E.R.117 (Clark Dep. at 56). Clark responded by
telling Miles that because she had filed a charge with the Commission, the
Commission was now her "advocate" in these matters and he would not help her
or talk to her. E.R.40, 64-67 (Miles Dep. at 312-14, Miles Aff't Att. 14). Clark
stated in his deposition that he believed Miles' allegations had been sufficiently
addressed by Boeing, as Cervantes had been fired, Blough had been dealt with by
Luidhardt and Mead, and, as for the tools/tool cart allegation, the tools did not
belong to Miles and were for others to use as well. E.R.118 (Clark Dep. at 57-58).
On August 5, 2001, Miles filed a second charge with the Commission,
alleging ongoing gender discrimination, as well as retaliation. E.R.8 (R.107, Ex.
8). Among other things, Miles stated in this charge that she reported to Clark that
Nunimaker called her a "fuckin' cry baby" when she complained to him. Id.
Miles alleged that Nunimaker had reported to employees that they should "be
careful" around her because they were on her "list," and that Byrd told another
employee that she was a bitch for going to Boeing HR. Id. Miles also stated, as
noted above, that she reported to Clark that Nunimaker called her a "fuckin' cry
baby" when she complained to him, and that Clark told her he would not help her
because she had filed a charge with the Commission. Id.
Miles continued to be harassed after her written complaint to Boeing.
Miles' coworkers began to ostracize her. One coworker observed that Byrd and
other coworkers from the first shift gave Miles "the cold shoulder" after she had
complained. E.R.88-89 (Trussler Dep. at 43-46). Another coworker testified that
"the mood of the shop between July 2001 and July 2002 was that [Miles] was an
outsider." E.R.101 (Flowers Dep. at 70). Byrd admitted to Boeing HR that he
refused to talk to Miles because "she has gotten other people fired." E.R.105,
110-11 (Diga Dep. at 57-59 & Ex. 5). Byrd also told a coworker that he refused to
attend mandatory team meetings because Miles would be present and "she's a
bitch." E.R.98 (McDonald Dep. at 37).
Coworkers testified that Byrd, Blough, Bonomo, Ted Manchengo, Fred
Jones, and other male coworkers repeatedly called Miles a bitch, and Blough
referred to another female employee as a bitch while in Miles' presence. E.R.34,
96-97, 100-101 (Miles Dep. at 251-53; McDonald Dep. at 16-19; Flowers Dep. at
25-26, 70). Blough and coworker Rick Malone also called her a "fucking cunt,"
all in the workplace but outside her presence. E.R.96-97 (McDonald Dep. at 16-
21). Miles continued to have problems with missing tools from her tool box, and
trash being put on her tool cart. These tool box problems persisted until mid-
2002, when a male coworker—rather than Miles—began signing out the hole fill
toolbox and assumed responsibility for the tools in the box.<3> E.R.22, 26-28 (Miles
Dep. at 177, 203-04, 206, 209, 212-13).
In October 2002 Blough taunted Miles for over an hour, chanting "you're
not my fucking boss" when she inquired why he was working on her aircraft.
E.R.41-42 (Miles Dep. at 317-21). In 2003 Blough commented in Miles' presence
that a football star had raped a woman and that she "probably deserved it," and on
another occasion Blough came by Miles and sang "ding dong the witch is dead."
E.R.33-34 (Miles Dep. at 247-49, 253). Manchengo called Miles a bitch to her
face, repeatedly told her that she "like[d] to be tied up" and referenced "whips and
chains," and also touched her inappropriately on several occasions—pulling her
hair and squeezing her neck "really hard." E.R.35-36 (Miles Dep. at 263-64, 269-
70).
Even after Byrd moved to a new work area in early 2003, he continued to
harass Miles, making repeated challenges to Miles' work performance. On at least
three occasions he contacted supervising engineers to report that Miles was not
properly following the ME Plan for the job she was performing on a particular
helicopter. E.R.107-08 (Diga Dep. Ex. 1). In each instance, Byrd's complaints
resulted in Boeing assigning engineers to scrutinize Miles' work for errors, and in
each instance Boeing subsequently determined that Miles had been correctly
performing her job, and Byrd's accusations had been incorrect. Id.
Miles continued to complain to Boeing about harassment, see E.R.68-78
(Miles Aff't Atts. 18 (letter dated March 22, 2002), 19 (letter dated October 10,
2002)), but Boeing failed to take action on her complaints. Miles also reported the
ongoing harassment to Nathan Van Keuren, a Production Operations Specialist,
who would occasionally fill in as a supervisor in Pre-Mod. E.R.91-92 (Van
Keuren Dep. at 13, 21-22). Van Keuren advised Miles to report these problems to
management, and reported to Nunimaker and Luidhardt that Miles was
"unhappy." E.R.93-94 (Van Keuren Dep. at 27-28). While Van Keuren believed
that Nunimaker and Luidhardt were addressing these concerns, there is no
evidence that they did so. Id. Instead, from June 2001 through 2003, Miles was
repeatedly asked by Boeing management if she would like to move to another
department. E.R.43-44 (Miles Dep. at 323-28). Miles declined Boeing's offer
because, despite her coworkers' harassment, she did not believe that it was "right"
that she should have to be the person to leave Pre-Mod. E.R.44 (Miles Dep. at
329-30). Miles stated that the harassment by her coworkers caused her so much
stress that she was unable to concentrate, and that she felt constantly stressed out,
depressed, irritable, ashamed, embarrassed, and had lost her appetite and lost
weight as a result. E.R.47, 55-56 (Miles Dep. at 409-10, Miles Aff't Att. 7). She
did eventually transfer out of Pre-Mod, in 2004. E.R.49 (Miles Aff't ¶ 34).
District Court Decision
In its decision granting Boeing summary judgment, the court disaggregated
the Commission's sex discrimination claim into two separate claims, and then
dispensed with each. The court first identified the Commission's "sexual
harassment claim" as primarily based upon the alleged conduct of two of Miles'
co-workers, Blough and Cervantes. E.R.131 (EEOC & Miles v. The Boeing Co.,
et al., No. 03-1210, Order, at 4 (D. Ariz. Sept. 28, 2005) ("Order")). As for
Cervantes' harassment of Miles, the court determined that Miles did not complain
to Boeing management until June 6, 2001, and that Boeing responded to that
complaint with an investigation which resulted in Cervantes' discharge less than
one month later. E.R.132 (Order at 5). The court further determined that Boeing
took prompt and appropriate action to end Cervantes' conduct as soon as Miles
"officially" complained. E.R.132-33 (Order at 5-6).
The court concluded that Luidhardt responded sufficiently to Miles'
complaint about Blough's conduct. E.R.133-34 (Order at 6-7). The court noted
that Luidhardt confronted Blough about his "blowjob" comment the same day
Miles reported the comment to Luidhardt, Blough essentially admitted the
conduct, and that Luidhardt issued Blough a verbal warning and counseled him
that he would get a written corrective action if the conduct persisted. E.R.133
(Order at 6). The court further noted that Miles thanked Luidhardt for his
handling of her complaint and that there had been no further complaints regarding
Blough making inappropriate sexual comments. The court also noted that when
Miles subsequently informed Mead about Blough's actions, Blough was given a
reprimand and placed on probation for six months. E.R.133-34 (Order at 6-7).
The court then concluded that the Commission had failed to create a
genuine issue of material fact as to whether Miles had been subjected to gender-
based harassment. E.R.134-36 (Order at 7-9). The court stated that the evidence
regarding the trashing of Miles' tool cart did not indicate that the event was the
result of discrimination. E.R.134 (Order at 7). As for Blough's shaking the
helicopter while Miles was standing on top, the court stated that there was no
evidence that it was done with an improper motive. E.R.134-35 (Order at 7-8).
The court also disregarded Nunimaker's "fuckin' crybaby" and "troublemaker"
responses to Miles' complaints of harassment, stating that there was no evidence
linking Nunimaker's comments to Miles' gender or protected activity. E.R.135
(Order at 8). The court concluded that while it was clear that Miles and her
coworkers had a "less than ideal working relationship," the evidence did not show
that there was a genuine issue of fact as to whether this acrimonious relationship
was the result of gender discrimination. E.R.136 (Order at 9). The court later
added that the Commission failed to show that the coworkers' use of the word
"bitch" was based on Miles' gender or protected conduct, and offered that
"[w]ithout proof of unlawful motivation, the use of the word ‘bitch' does not
establish proof of gender discrimination as a matter of law." E.R.140 (Order at
13).
As for the Commission's retaliation claim, the court only addressed the
disparate treatment aspect of this claim, and ignored the retaliatory harassment
claim—other than to disaggregate the events alleged in support thereof, and
dispense with some of those events (while ignoring the others) on an individual
basis. E.R.136-42 (Order at 9-15). The court concluded the Commission failed to
create a genuine issue as to whether Miles had suffered an adverse employment
action, or whether the complained-of actions were motivated by Miles' protected
activity. E.R.137-42 (Order at 10-15).
The court also determined that Boeing did not retaliate against Miles by
refusing to further investigate her complaints after she filed her charge with the
Commission. E.R.139 (Order at 12). The court stated that Luidhardt told Miles
that she was able to use the Boeing EEO office for other complaints, and that she
did so repeatedly. Id. The court also determined that Clark understood Boeing's
policy to require him to respond directly to the Commission regarding charges
filed against Boeing, and this conduct did not amount to an adverse action because
Boeing's policy was a "reasonable defensive measure[]" against an employee's
charge of discrimination. Id. The court also found that the ostracism to which
Miles had been subjected was not actionable under Ninth Circuit precedent,
adding that even if the ostracism was actionable, the Commission failed to
"establish" that the ostracism was because of Miles' protected activity. E.R.140-
41 (Order at 13-14).
Summary of the Argument
The district court's decision granting Boeing's motion for summary
judgment was premised upon an incorrect application of summary judgment
principles and the relevant substantive law regarding Title VII harassment and
retaliation claims. The court failed to view the evidence in the light most
favorable to the Commission and improperly made factual determinations as to
contested evidence. The court failed to draw all reasonable inferences in the
Commission's favor, accepting Boeing's version of contested matters and ignoring
or otherwise disregarding the evidence in support of the Commission's position.
The court also failed to apply the proper substantive law to the Commission's
claims. The court disaggregated the acts which combined to create the hostile
work environment and dispensed with them individually rather than under the
proper "totality of the circumstances" standard.
Under the appropriate legal standards, the evidence offered by the
Commission in support of its claims was more than sufficient to survive summary
judgment. The evidence would support a reasonable finder of fact's conclusion
that Kelley Miles was subjected to sex harassment by her coworkers from the
beginning of her employment with Boeing, and that this sex harassment was
sufficiently severe or pervasive to create a hostile work environment. The
evidence is further sufficient to support the conclusion that Miles complained
verbally to Boeing management about this harassment for years, yet Boeing did
nothing until she complained in writing, and even then Boeing's response was
incomplete and not reasonably calculated to resolve the harassment.
The evidence is also more than sufficient to support a reasonable jury's
conclusion that after Miles made her written complaint to Boeing and filed a
charge of discrimination with the Commission, Boeing subjected her to retaliation
in violation of Title VII. The evidence is sufficient to support the conclusion that
not only did Boeing's HR and EEO personnel retaliate against her directly, but her
coworkers intensified their harassment of her, subjecting her to a retaliatory
hostile work environment of which Boeing was on notice but took no action to
remedy. For these reasons, this Court should reverse the grant of summary
judgment and remand the matter for trial.
Argument
I. Standard of review.
In this appeal, the Commission challenges the district court's grant of
summary judgment to Boeing on the Commission's claims of sexual harassment
and retaliation in violation of Title VII. This Court reviews the grant of summary
judgment de novo, applying the same legal standard as the district court is required
to apply. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir. 2001).
The proper substantive legal standard requires that summary judgment be granted
only when the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter
of law. Fed. R. Civ. P. 56(c). That is, summary judgment is only appropriate if,
on the record as a whole, a rational trier of fact could not find for the nonmoving
party, and, in making such a determination, "the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). "[A]lthough the court should review the record as
a whole, it must disregard all evidence favorable to the moving party that the jury
is not required to believe. . . . [T]he court should give credence to the evidence
favoring the nonmovant as well as that ‘evidence supporting the moving party that
is uncontradicted and unimpeached, at least to the extent that the evidence comes
from disinterested witnesses." Id. at 150-51. "This court requires the non-moving
party to produce ‘very little evidence' to overcome a motion for summary
judgment in a discrimination case because ‘the ultimate question is one that can
only be resolved through a searching inquiry—one that is most appropriately
conducted by a factfinder, upon a full record.'" Lindsey v. SLT Los Angeles,
LLC, 432 F.3d 954, 958 (9th Cir. 2005) (quoting Chuang v. Univ. of Cal. Davis,
Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).
II. A reasonable trier of fact could conclude on the record before the
district court that Miles was subjected to sex harassment for which
Boeing is liable.
Title VII makes it unlawful for an employer "to discriminate against any
individual" with respect to the individual's "terms, conditions or privileges of
employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1)
(attached in Addendum at A-1). "The Supreme Court has held that ‘[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment, Title VII is violated.'"
Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1034 (9th Cir. 2005)
(quoting in part Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "The critical
issue, Title VII's text indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998) (citation omitted). Moreover, the employer is directly liable for the
consequences of such harassment, where "‘its own negligence is a cause of the
harassment.'" Swenson v. Potter, 271 F.3d 1184, 1191-92 (9th Cir. 2001)
(quoting Burlington Indus., Inc. v. Ellerth, 532 U.S. 742, 759 (1998)). As will be
described more fully below, the Commission presented ample evidence from
which a reasonable factfinder could conclude that the discriminatory intimidation,
ridicule, and insult to which Miles was constantly subjected by her coworkers,
because of her sex, was sufficiently severe or pervasive to alter the conditions of
her employment and create an abusive working environment in violation of Title
VII. The Commission's evidence was also more than sufficient to support a
reasonable factfinder's conclusion that Boeing's response to this harassment was
neglectful, sufficient for it to be held liable for the consequences suffered by
Miles.
A. There is abundant evidence that because of her sex, Miles was
subjected to a hostile work environment by her coworkers.
In determining whether a work environment was sufficiently hostile and
abusive to establish the elements of a hostile work environment claim, courts must
examine the totality of the circumstances, which may include the frequency of the
discriminatory conduct, its severity, and whether it is physically threatening or
humiliating, or a mere offensive utterance. Harris, 510 U.S. at 23; Dominguez-
Curry, 424 F.3d at 1034. "The more outrageous the conduct, the less frequent
must it occur to make a workplace hostile." Gregory v. Widnall, 153 F.3d 1071,
1074 (9th Cir. 1998) (citing Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).
The evidence must also show that the work environment was both subjectively
and objectively hostile—"one that a reasonable person would find hostile or
abusive, and one that the victim did in fact perceive to be so." Faragher v. City of
Boca Raton, 524 U.S. 775, 787 (1998); Nichols v. Azteca Rest. Ents., Inc., 256
F.3d 864, 871-72 (9th Cir. 2001). The Commission's evidence shows that Miles
endured several years of offensive, degrading, and threatening sex-based
harassment by her coworkers, and is more than sufficient to present a triable issue
on all the elements of the Commission's hostile work environment claim.
As soon as Miles began working for Boeing in the Pre-Mod group, her male
coworkers criticized and subjected her work to constant scrutiny, ignored her
suggestions for improvements, accused her of breaking things at work and hiding
them, drew witch faces on her identification badge, and told other employees that
she was a lesbian and a "man-hater." E.R.19, 37 (Miles Dep. at 158-60, 273-74).
From 1998 through June 2001, Cervantes on an almost daily basis told Miles that
she "wanted" him and "loved" him, would routinely grab Miles, hug her, rub her
shoulders, stick his tongue out at her, and blow kisses at her. E.R.11-12, 50-51
(Miles Dep. at 103-06, 109; Miles Aff't ¶ 47). Once he tried to force Miles to kiss
him, and on another occasion went so far as to pick Miles up, throw her over his
shoulder, and run through the workplace carrying her "like a bag of potatoes."
E.R.12-13 (Miles Dep. at 109-10).
The harassment of Miles intensified beginning in early 2001, with Byrd and
others repeatedly calling her a bitch, removing tools without permission from the
tool box she regularly used, and breaking her tools. E.R.18-20, 24-25, 30-31
(Miles Dep. at 153, 158, 161, 164-65, 192-94, 222-23). Byrd took the tool box set
up for Miles' hole fill job and refused to give it to her, later shouting at her that it
was not her "fucking toolbox." E.R.23 (Miles Dep. at 182-83). Coworkers took
special fasteners that had been ordered for her work and mixed them up, and Byrd
took the ME Plan she used, to prevent her from performing her job. E.R.19, 38-
39, 55-56 (Miles Dep. at 161-63, 281-82, 284; Miles Aff't Att. 7). In May 2001
the tool cart Miles routinely used was "trashed" when someone dumped over her
work materials, put trash on the cart, and wrapped the mess in tape, and the cart
was subsequently trashed on several other occasions as well. E.R.22 (Miles Dep.
at 177-78, 180). And on one occasion, Blough shook the tail of a helicopter while
Miles was standing on top, forcing her to sit to avoid falling some six feet to the
ground. E.R.32 (Miles Dep. at 239-42). Blough commented, while passing Miles
as she spoke with a male coworker, that she "was probably fucking him now."
E.R.34, 61 (Miles Dep. at 251; Miles Aff't Att. 11). In late May/early June 2001,
Blough told another coworker that Miles was getting away with "a lot of stuff"
and that she gave "a good blowjob," and the coworker reported this to Miles.
E.R.15, 127 (Miles Dep. at 130-31; Blough Dep. at 15).
After Miles' written complaints to Boeing in mid-2001, she continued to be
subjected to coworker harassment. Blough continued to harass Miles by calling
her a bitch, as well as referring to another female employee as a bitch while in
Miles' presence. E.R.34 (Miles Dep. at 251-53). See Dominguez-Curry, 424 F.3d
at 1036 ("‘[I]f . . . hostility pervades a workplace, a plaintiff may establish a
violation of Title VII, even if such hostility was not directly targeted at the
plaintiff.'" (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir.
2004))). Miles continued to have problems with missing tools from her tool box,
and trash being put on her tool cart. E.R.22, 26-28 (Miles Dep. at 177, 203-04,
206, 209, 212-13). In October 2002, Blough taunted Miles for over an hour,
chanting "you're not my fucking boss" when she inquired why he was working on
her aircraft. E.R.41-42 (Miles Dep. at 317-21). In 2003, Blough commented in
Miles' presence that a football star had raped a woman and that she "probably
deserved it," and on another occasion Blough came by Miles and sang "ding dong
the witch is dead." E.R.33-34 (Miles Dep. at 247-49, 253). Manchengo called
Miles a bitch, repeatedly told her that she "like[d] to be tied up" and referenced
"whips and chains," and also touched her inappropriately on several
occasions—pulling her hair and squeezing her neck "really hard." E.R.35-36
(Miles Dep. at 263-64, 269-70). In early 2003, even after Byrd moved to a new
work area, he continued to harass Miles by making repeated, unfounded
complaints to management about her work performance. E.R.107-08 (Diga Dep.
Ex. 1).
This evidence is more than adequate, on summary judgment, to support a
reasonable factfinder's conclusion that Miles' work environment was sufficiently
severe or pervasive to alter the terms, conditions, and privileges of her
employment in violation of Title VII. This Court has routinely concluded that
similar, or even lesser, evidence is sufficient to create a genuine issue of material
fact as to whether the complained-of conduct is sufficiently severe or pervasive to
support a sex-based hostile work environment claim. See, e.g., Dominguez-Curry,
424 F.3d at 1035 (evidence sufficient where the harasser over a five-year period
made numerous demeaning comments about women in the workplace, exhibited
hostility to women who took maternity leave, and told sexually explicit jokes on a
daily basis); Porter v. California Dep't of Corr., 419 F.3d 885, 893-94 (9th Cir.
2005) (evidence that in 1995 and 1996 a union official sexually propositioned the
victim and made offensive comments to and about her, a superior spat on her food
in 1996 or 1997, the same superior called her a "fucking bitch" in 1998, and the
union official called her a whore and glared at her in 1998, adequate to create a
triable issue); Nichols, 256 F.3d at 872-73 (evidence that coworkers habitually
called the victim sexually derogatory names, referred to him in the female gender,
and taunted him for behaving like a woman, all designed to humiliate and anger
him, was sufficient to meet the severe or pervasive conduct requirement). The
district court's assessment of the evidence in this case, including its failure to
examine the totality of the circumstances, see E.R.131-36 (Order at 4-9), is totally
out of step with this Court's well settled analytical approach to evaluating severity
and pervasiveness in sexual harassment cases.
As for the requirement that the conduct be objectively hostile, this element
of the claim is judged from the perspective of a reasonable person in the victim's
position, considering all the circumstances. Oncale, 523 U.S. at 81; Nichols, 256
F.3d at 872. In cases involving female victims of sex-based workplace
harassment, this Court assesses objective hostility from the perspective of a
reasonable woman in the victim's shoes. Dominguez-Curry, 424 F.3d at 1034.
There can be no question that the foregoing litany of degrading, humiliating, and
offensive conduct to which Miles was subjected over a period of several years
constitutes sufficient evidence to support a reasonable factfinder's conclusion that
a reasonable woman in Miles' shoes would have regarded the actions by her male
coworkers to be sufficiently hostile and abusive to establish the objective hostility
element of the Commission's claim. See Dominguez-Curry, 424 F.3d at 1035;
Porter, 419 F.3d at 893-94; Nichols, 256 F.3d at 872-73.
In addition, the evidence is sufficient to support a reasonable factfinder's
conclusion that Miles found the harassment to be subjectively hostile and abusive.
In making this determination, courts look to the evidence to determine whether the
victim perceived the harassment to be unwelcome. Nichols, 256 F.3d at 873.
There is no evidence whatsoever—and no argument presented below by
Boeing—that Miles encouraged her coworkers to engage in harassing behavior
toward her or otherwise indicated that the abusive conduct was acceptable to her.
There can be no question but that she found their harassment unwelcome.
There is voluminous evidence that Miles complained to Boeing
management about the harassment. See Nichols, 256 F.3d at 873 ("That Sanchez
complained about the frequent, degrading verbal abuse supports our conclusion
that the conduct was unwelcome, as does Sanchez' unrebutted testimony to that
effect."). Since Hatter was her supervisor, Miles complained to him about much
of her coworkers' harassing conduct, including being called a bitch. E.R.19
(Miles Dep. at 159-60). Miles also complained to Nunimaker about the
"obnoxiousness," "slander," and other harassing conduct by her coworkers.
E.R.18-19 (Miles Dep. at 156-60). Nunimaker responded to her complaints by
calling Miles a troublemaker. E.R.39 (Miles Dep. at 285-86). While Miles did
not specifically mention in these complaints that Cervantes was sexually harassing
her, she did routinely express her objection to his conduct directly to him, telling
him to knock it off and to get away from her, or to get his hands off her, but her
objections had no effect. E.R.12, 18-19 (Miles Dep. at 107-09, 156-160). Miles
complained to Nunimaker about Byrd taking the toolbox, about her coworkers
taking and mixing up the special fasteners that had been ordered for her job, and
about Byrd's taking her ME Plan. E.R.20, 23, 38-39 (Miles Dep. at 164-65, 183,
281-82, 284). Miles complained to Luidhardt about the trashing of her tool cart,
and about Blough's "blowjob" comment. E.R.16-17, 22 (Miles Dep. at 138, 140,
177-78, 180).
On June 5, 2001, Miles complained in writing directly to Boeing's HR
department about the harassment. E.R.59 (Miles Aff't Att. 8). Even after her
written complaint, Miles continued to complain to Boeing about the ongoing
harassment by her coworkers. E.R.68-78 (Miles Aff't Atts. 18 (letter dated March
22, 2002), 19 (letter dated October 10, 2002)). Miles also complained of the
ongoing harassment to Van Keuren. E.R.91-92 (Van Keuren Dep. at 13, 21-22).
Furthermore, Miles testified that the harassment made her working conditions
"intolerable" in Pre-Mod. E.R.43-44 (Miles Dep. at 324, 327). Miles stated that
the harassment by her coworkers caused her so much stress that she was unable to
concentrate, and that she felt constantly stressed out, depressed, irritable, ashamed,
embarrassed, and had lost her appetite. E.R.47, 55-57 (Miles Dep. at 409-10,
Miles Aff't Att. 7). This extensive evidence of Miles' clear and manifest
objection to her coworkers' hostile and abusive conduct is more than sufficient to
support a reasonable factfinder's conclusion that Miles considered the conduct to
which she was subjected to be unwelcome, and that she subjectively perceived the
conduct to be hostile and abusive. See Nichols, 256 F.3d at 873-74 (victim's
complaining to Human Resources Director was sufficient to "demonstrat[e] a
subjective belief that he was being harassed")
A plaintiff may meet its burden of presenting evidence sufficient to support
an inference that the harassment was "because of sex" if it shows that "the
harasser is motivated by general hostility to the presence of women in the
workplace." Oncale, 523 U.S. at 80. The Commission's evidence amply supports
a reasonable inference that the harassing conduct of Miles' male coworkers was
perpetrated because of her sex. First, the record is replete with evidence that
Miles' coworkers frequently referred to her (both directly to her and out of her
presence) by names which suggested they harbored a sex-based animus toward
her, such as "bitch" and "fucking cunt." E.R.96-97, 100-01 (McDonald Dep. at
16-21; Flowers Dep. at 25-26, 70). See Costa v. Desert Palace, Inc., 299 F.3d 838,
861-62 (9th Cir. 2002) (noting that a jury could interpret the use of the term
"bitch" in reference to the plaintiff as evidence of sex-based hostility), aff'd, 539
U.S. 90 (2003)<4>. See also Dominguez-Curry, 424 F.3d at 1038 (sexist remarks by
harasser are probative of discriminatory intent even if such remarks are directed at
women other than the plaintiff).
When Miles began working for Boeing, she was the only female mechanic
with experience working with sheet metal, and her male coworkers refused to
accept her. E.R.37 (Miles Dep. at 273). They criticized Miles' work and
subjected it to constant scrutiny, ignored her suggestions for improvements,
accused her of breaking things at work and hiding them, drew witch faces on her
identification badge, and told others that she was a lesbian and a "man-hater."
E.R.19, 37 (Miles Dep. at 158-60, 273-74). Byrd told Miles that he could "work
circles around [her] ass," which Miles took to be a reflection of his jealousy and
resentment of her being "a woman who holds her own." E.R.19 (Miles Dep. at
160). This is precisely the type of evidence of general hostility toward women in
the workplace which supports an inference, on summary judgment, that Miles'
coworkers harassed her because of her sex. See Oncale, 523 U.S. at 80.
Furthermore, it is uncontested that the conduct of Cervantes was because of
Miles' sex. From 1998 through June 2001, Cervantes on an almost daily basis
told Miles that she "wanted" him and "loved" him; would routinely grab her, hug
her, rub her shoulders, stick his tongue out at her, and blow kisses at her; once
tried to force Miles to kiss him; and once even picked Miles up, threw her over his
shoulder and ran carrying her through the workplace "like a bag of potatoes."
E.R.11-13, 50-51 (Miles Dep. at 103-06, 109-10; Miles Aff't ¶ 47). This
sexualized behavior by Cervantes strongly supports an inference that his behavior
was motivated by Miles' sex. The district court's determination that there was
"insufficient evidence" to establish that the harassing conduct of Miles' coworkers
was perpetrated because of Miles' sex largely ignored this evidence and
misinterpreted Costa regarding inferences that may properly be drawn from her
male coworkers' namecalling. See E.R.131-36, 140 (Order at 4-9, 13).
B. There is abundant evidence that Boeing was aware of the sex
harassment and failed to take prompt corrective action.
In a coworker harassment case, the employer is liable for the harassing
conduct where its own negligence is a cause of the harassment. Ellerth, 524 U.S.
at 759; Swenson, 271 F.3d at 1191. Liability attaches where "the employer knew
or should have known of the harassment but did not take adequate steps to address
it." Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001) (citations
omitted). Such notice can be actual or constructive. Fuller, 47 F.3d at 1528
(citing Ellison, 924 F.2d at 875-76). That is, "employers are liable for failing to
remedy or prevent a hostile work environment of which management-level
employees knew, or in the exercise of reasonable care should have known."
McGinest, 360 F.3d at 1119 (quoting Ellison, 924 F.2d at 881).
Notice of coworker harassment triggers the employer's duty to take prompt
corrective action that is "reasonably calculated to end the harassment." Swenson,
271 F.3d at 1192 (citation omitted). The employer's obligation "will not be
discharged until action—prompt, effective action—has been taken." Fuller, 47
F.3d at 1528. The reasonableness of the employer's remedial effort depends on its
ability to stop the present harassment, and to persuade potential harassers—the
same offender or others—to refrain from unlawful conduct. McGinest, 360 F.3d
at 1120 (citing Nichols, 256 F.3d at 875); Fuller, 47 F.3d at 1528 (citing Ellison,
924 F.2d at 882). If the employer fails to undertake any remedy to end the
harassment, or the remedy undertaken is not effective, liability will attach.
Swenson, 271 F.3d at 1192; Fuller, 47 F.3d at 1528-29. Under such
circumstances, "the employer can be deemed to have ‘adopt[ed] the offending
conduct and its results, quite as if they had been authorized affirmatively as the
employer's policy.'" Swenson, 271 F.3d at 1192 (quoting Faragher, 524 U.S. at
789). The evidence of Boeing's actual and constructive notice of the harassment
to which Miles was subjected, coupled with Boeing's failure to take reasonable
measures to remedy that harassment, is more than sufficient to support a
reasonable factfinder's conclusion in favor of the Commission on these elements
of its claim.
Miles' verbal and written complaints to Boeing management are well
documented. See Statement of Facts, supra pp. 6-11, 14. Miles' complaints to her
superiors about the extensive harassment at the hands of her male coworkers were
more than sufficient to put Boeing on notice that she was being subjected to sex
harassment. See Nichols, 256 F.3d at 873 n.6 (harassment victim complained to
the employer, specifying the insults and slurs to which he had been subjected but
failing to state that he was complaining of "sexual harassment"; the Court
concluded that his failure to label the complaint as one of "sexual harassment" is
"irrelevant to the issue of whether he made a sexual harassment complaint.").
Moreover, Boeing was well aware that Cervantes had an extensive history of sex
harassment in the workplace, having had numerous prior complaints of sexual
harassment lodged against him. E.R.13-14, 122-23 (Miles Dep. at 115, 118;
Nunimaker Dep. at 9-10, 13). Had Boeing responded in a reasonable manner to
Miles' complaints by investigating her allegations—rather than ignoring her or
calling her a troublemaker—it is reasonable to believe, given the severe and
pervasive nature of the harassment, that Boeing would have discovered the extent
and nature of the harassment to which Miles was being subjected. This is
especially so in light of the evidence of Boeing's knowledge of Cervantes' history
as a sexual harasser, and Mead's admitted belief that harassers like Cervantes tend
to be serial offenders. See E.R.114 (Mead Dep. at 37). A reasonable trier of fact
could easily conclude on this record that Boeing was, or should have been, aware
of the harassment endured by Miles. See McGinest, 360 F.3d at 1119
("[E]mployers are liable for failing to remedy or prevent a hostile work
environment of which management-level employees knew, or in the exercise of
reasonable care should have known." (quoting Ellison, 924 F.2d at 881))).
The evidence is also more than sufficient to support a finding that Boeing
failed to take prompt and effective corrective action in response to Miles'
harassment complaints. Hatter did nothing in response to Miles' complaints.
E.R.19 (Miles Dep. at 159-60). Nunimaker's response was to call Miles a
troublemaker or to say he had already talked to "the guys" rather than investigate
the allegations or pass the complaint on to Boeing HR. E.R.20, 39, 122-23 (Miles
Dep. at 164-65, 285-86; Nunimaker Dep. at 9-10, 13). And the harassment
continued unabated. While Boeing's delayed termination of Cervantes was
eventually effective in eliminating any future harassment by him, the company did
nothing to alleviate the other pervasive harassment Miles experienced. In fact,
what little effort Boeing made served only to exacerbate the situation. For
example, during a meeting where harassment and sexual harassment were
discussed, Clark (the Boeing EEO official) commented to the employees in Pre-
Mod that "some people will pick on other people" but that's just their
"personality" and "you can't do anything about it . . . you can't change people's
personalities." E.R.85 (Miles Aff't Att. 35). And, as if to add insult to injury,
Boeing's only suggestion was to ask Miles if she would like to move to another
department. E.R.43-44 (Miles Dep. at 323-28). This is hardly an effective
remedial response. See Swenson, 271 F.3d at 1194 ("[A]n employer does not
satisfy its remedial obligation by transferring the victim to a less desirable
location.") (citation and internal quotation omitted); Ellison, 924 F.2d at 882 ("We
wholeheartedly agree with the EEOC that a victim of sexual harassment should
not have to work in a less desirable location as a result of an employer's remedy
for sexual harassment.") (citation omitted). If the employer fails to undertake any
remedy to end the harassment, or the remedy undertaken is not effective, liability
will attach. Swenson, 271 F.3d at 1192; Fuller, 47 F.3d at 1528-29. This is
precisely what the Commission's evidence showed—that Boeing took no remedial
steps to end the harassment and the "efforts" it did undertake served only to make
matters worse.
III. A reasonable trier of fact could conclude on the record before the
district court that Boeing is liable for retaliatory conduct directed at
Miles.
Title VII prohibits employers from retaliating against an employee because
that employee has opposed any employment practice unlawful under that statute,
or because the employee has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under the statute. 42
U.S.C. § 2000e-3(a) (attached in Addendum at A-2). Retaliatory conduct,
including retaliatory harassment, is actionable under Title VII if it is reasonably
likely to deter employees from engaging in protected activity. Ray v. Henderson,
217 F.3d 1234, 1240 (9th Cir. 2000). The Commission's evidence on summary
judgment was more than sufficient to support a reasonable finder of fact's
conclusion that after Miles complained to Boeing about the sex harassment she
was suffering, Boeing subjected Miles to retaliatory treatment and her coworkers
subjected her to retaliatory harassment. Boeing's negligence in failing to take
reasonable measures to remedy the retaliatory harassment renders it liable for that
harassment and the district court's conclusion to the contrary was reversible error.
A. The evidence is sufficient to support a reasonable trier of fact's
conclusion that Boeing management retaliated against Miles.
In order to establish a prima facie case of unlawful retaliation, the
Commission must show that Miles engaged in protected activity, that Boeing
subjected her to an adverse employment action, and that a causal link exists
between the protected activity and the adverse action. Ray, 217 F.3d at 1242. The
Commission's evidence is more than sufficient to withstand summary judgment as
to each element of the retaliation claim.
It is uncontested that Miles' complaints to Boeing HR, as well as the filing
of her charges with the Commission, constituted activity protected under the
antiretaliation provision of Title VII. Subsequent to engaging in this protected
activity, Miles was subjected to adverse treatment by Boeing. Shortly after Miles'
June 6, 2001 written complaint to Boeing HR, Mead responded by telling her that
her complaint "was going all the way to the top now" and that by filing her
complaint she "was going to create a lot of enemies." E.R.45-46 (Miles Dep. at
388, 391-92). Miles interpreted Mead's comments as suggesting that she
withdraw her complaint. E.R.46 (Miles Dep. at 392). Mead also refused to
address Miles' other claims of harassment, telling her that he did not want to hear
from her about any coworker conduct except for that perpetrated by Cervantes.
E.R.65-66 (Miles Aff't Att. 14). On July 12, 2001, when Miles complained to
Clark that Mead had failed to follow up on her complaint, Clark responded by
telling Miles that because she had filed a charge with the Commission, the
Commission was now her "advocate" and Boeing would not help her. E.R.40, 64-
67 (Miles Dep. at 312-14, Miles Aff't Att. 14).
The Commission's evidence of Boeing's retaliatory conduct easily meets
this Court's standard for actionable retaliation—conduct by the employer which is
reasonably likely to deter employees from engaging in protected activity. See
Ray, 217 F.3d at 1240. The conduct of Mead and Clark communicated to Miles in
no uncertain terms that she would suffer negative consequences because she
complained to Boeing and filed a charge with the Commission. A jury could
easily conclude that a reasonable person would likely be deterred from
complaining about discrimination if he or she was threatened by management in
the manner Boeing threatened Miles.
Boeing did not even address Mead's comments in its summary judgment
pleadings, and the court made no mention of them in its decision. As for Clark's
actions, the court ignored the clear dispute on this evidence and simply adopted as
true Boeing's version of Clark's comments—that he only stated that he could no
longer discuss the claims presented to the Commission in her charge, and not any
or all claims she may have. See E.R.139 (Order at 12). On this basis, the court
concluded that Clark's action was not an adverse employment action but merely
"an exercise of the employer's right to engage in reasonable defensive measures
against the employee's charge." Id. However, for purposes of summary
judgment, the district court was required to accept as true Miles' assertion that
Clark stated that he would not assist her with any other allegations of mistreatment
because she had filed a charge. The court was also required to consider the
evidence of Mead's threatening comment to Miles for filing her complaint. The
court's failure to properly consider this evidence is reversible error. See Reeves,
530 U.S. at 150-51 (on summary judgment, the court should give credence to the
evidence favoring the nonmovant, and not make credibility determinations).
The Commission's evidence is also more than sufficient to support an
inference of a causal link between Miles' protected activity and Boeing's conduct.
Boeing's conduct was facially retaliatory, specifically referencing Miles' protected
activity as the motive behind Boeing's statements and actions. In addition,
Boeing's adverse treatment of Miles followed almost immediately on the heels of
her complaint about being subjected to sex harassment. See Ray, 217 F.3d at 1244
("That an employer's actions were caused by the engagement in protected
activities may be inferred from proximity in time between the protected action and
the allegedly retaliatory employment decision." (quoting in part Yarzoff v.
Thomas, 809 F.2d 1371, 1371 (9th Cir. 1987))). Accordingly, there can be no
serious question whether the Commission's evidence of retaliatory motive is
sufficient for the Commission to survive summary judgment. It is, and the district
court's decision to the contrary constitutes reversible error.
B. The evidence also shows Miles was subjected to retaliatory
coworker harassment of which Boeing was aware and failed to
take prompt corrective action.
As stated previously, this Court has recognized that a cause of action is
available under Title VII for victims of retaliatory harassment—indeed, such
retaliatory conduct constitutes "the paradigm of adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party or others
from engaging in protected activity." Ray, 217 F.3d at 1245 (citing EEOC
Compliance Manual, Section 8: Retaliation (May 20, 1998)). In order to establish
a claim of retaliatory harassment under Title VII, this Court requires that the
plaintiff establish essentially the same elements as are required of a plaintiff
alleging harassment on the basis of race, sex, or other protected characteristics
under Title VII. The plaintiff must show that the complained-of harassment was
sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment, and that the harassment was both
subjectively and objectively offensive. Id. (citing Harris, 510 U.S. at 21;
Faragher, 524 U.S. at 787). In determining whether the environment is
sufficiently hostile to support the claim, the court must look to the totality of the
circumstances, including the frequency of the conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee's work performance<5>. Id. (citing
Faragher, 510 U.S. at 787).
The Commission's evidence of the retaliatory harassment Miles suffered at
the hands of her coworkers is more than sufficient to create a genuine dispute as to
the facts material to this claim, making summary judgment inappropriate. In June
2001, as soon as Miles filed her first written complaint with Boeing, and her first
charge of sex discrimination with the Commission, her coworkers began to subject
her to new, and intensified, harassment. One coworker, Bonomo, told her just two
days after she complained of harassment that "the fucking war is on now." E.R.45
(Miles Dep. at 389). Blough continued to harass Miles by calling her a bitch, as
well as referring to another female employee as a bitch while in Miles' presence.
E.R.34 (Miles Dep. at 251-53). Manchengo called Miles a bitch to her face,
repeatedly told her that she "like[d] to be tied up" and referenced "whips and
chains," and also touched her inappropriately on several occasions—pulling her
hair and squeezing her neck "really hard." E.R.35-36 (Miles Dep. at 263-64, 269-
70). Miles continued to have problems with missing tools from her tool box, and
trash being put on her tool cart. In October 2002 Blough taunted Miles for over an
hour, chanting "you're not my fucking boss" when she inquired why he was
working on her aircraft. E.R.41-42 (Miles Dep. at 317-21). In early 2003 Blough
commented in Miles' presence that a football star had raped a woman and that she
"probably deserved it," and on another occasion Blough walked by Miles and sang
"ding dong the witch is dead." E.R.33-34 (Miles Dep. at 247-49, 253). In early
2003, even after Byrd had moved to a new work area, he continued to harass
Miles, bringing to Boeing management repeated (and unfounded) challenges to
her work performance. E.R.107-08 (Diga Dep. Ex. 1).
Miles' coworkers also ostracized her after she complained about the sex
harassment. One coworker observed that Byrd and other coworkers from the first
shift gave Miles "the cold shoulder" after she had complained. E.R.88-89
(Trussler Dep. at 43-46). Another coworker testified that "the mood of the shop
between July 2001 and July 2002 was that [Miles] was an outsider." E.R.101
(Flowers Dep. at 70). Byrd admitted to Boeing HR that he refused to talk to Miles
because "she has gotten other people fired." E.R.105, 110 (Diga Dep. at 57-59 &
Ex. 5). After Miles lodged her written complaint with Boeing, Byrd told a
coworker that he refused to attend mandatory team meetings because Miles would
be present and "she's a bitch." E.R.98 (McDonald Dep. at 37).
The district court stated that the ostracism to which Miles was subjected
was not actionable in the Ninth Circuit, and that even if it was, the Commission
failed to show that the ostracism was based upon a retaliatory motive. E.R.140-41
(Order at 13-14). The court was incorrect. This Court has specifically recognized
that ostracism can support a retaliatory hostile work environment claim. See Ray,
217 F.3d at 1245-46 (including in litany of harassing retaliatory actions taken by
the plaintiff's supervisors, their "foster[ing] animus in other employees" who
"began to distance themselves from [plaintiff], and some stopped talking to him").
While this Court has also recognized that "‘mere ostracism in the workplace is not
enough to show an adverse employment decision," Brooks v. City of San Mateo,
229 F.3d 917, 929 (9th Cir. 2000) (quotation omitted), that statement regarding
"mere ostracism" was in reference to a claim that ostracism in an of itself is an
actionable adverse employment action, not a claim (as presented in Ray) that the
ostracism was part of a larger totality of circumstances which constituted a
retaliatory hostile work environment. See Brooks, 229 F.3d at 929; Ray, 217 F.3d
at 1245-46.
Moreover, the Commission's evidence is more than sufficient to support a
reasonable finder of fact's conclusion that this ostracism, as well as other post-
complaint harassing conduct by Miles' coworkers, was perpetrated in retaliation
for her protected activity. The ostracism began, and the other harassment
escalated, almost immediately after Miles complained to Boeing and her
coworkers discovered that fact. See Ray, 217 F.3d at 1244 (retaliatory motive may
be inferred from temporal proximity between protected activity and the allegedly
retaliatory conduct (quoting in part Yarzoff, 809 F.2d at 1371)). This ostracism
and escalated harassment persisted for over a year. The nature of some of this
conduct—such as Bonomo's comment that the "fucking war is on now," other
coworkers' testimony that the attitude of Miles' coworkers toward her changed for
the worse after she filed her written complaint with Boeing, and Byrd's statement
to a Boeing official that he refused to speak with Miles because of her protected
activity—also serves as strong evidence that a retaliatory motive was behind the
harassment. See E.R.45, 88-89, 101, 105, 110-11 (Miles Dep. at 389; Trussler
Dep. at 43-46; Flowers Dep. at 70; Diga Dep. at 57-59 & Ex. 5).
The evidence also indicates that the retaliatory harassment was both
objectively and subjectively hostile. See Faragher, 524 U.S. at 787 (the work
environment must be "one that a reasonable person would find hostile or abusive,
and one that the victim did in fact perceive to be so."); Nichols, 256 F.3d at 871-
72 (same). The conduct on its face is sufficiently hostile for a reasonable person
to find Miles' working conditions hostile or abusive. Moreover, the evidence of
Miles' reaction to the harassing conduct, including suffering tremendous stress,
depression, irritability, shame, embarrassment, and loss of appetite leading to
weight loss, as well as her complaints to Boeing and the Commission about her
coworkers' ongoing retaliation and harassment, is sufficient to indicate that Miles
perceived the conduct to be subjectively hostile. See E.R.6-8, 47, 55-56, 68-78,
(R.107, Exs. 7, 8 (charges of discrimination Miles filed with the Commission);
Miles Dep. at 409-10 (discussing harm she suffered as a result of her coworkers'
harassment); Miles Aff't Atts. 7 (same), 18 ( March 22, 2002 complaint to
Boeing), 19 (October 10, 2002 complaint to Boeing)).
On this record, the Commission presented more than enough evidence to
support a reasonable finder of fact's conclusion that Miles was subjected to
retaliatory harassment which was sufficiently severe or pervasive to alter the terms
and conditions of her employment and create an abusive working environment.
See, e.g., Ray, 217 F.3d at 1245-46 (evidence that after plaintiff engaged in
protected activity, he was subjected to harassment which included verbal abuse,
being called a liar and troublemaker, being subjected to numerous workplace
pranks, being falsely accused of misconduct, having his supervisors make it harder
for him to complete his job and fostering animus against him by his coworkers,
and being ostracized by his coworkers, was sufficient to create a fact issue as to
whether he was subjected to a retaliatory hostile work environment).
There is also ample evidence upon which a reasonable finder of fact could
conclude that Boeing knew or should have known of the retaliatory harassment to
which Miles was subjected and utterly failed to meet its duty to take prompt
corrective action reasonably calculated to end the conduct. See McGinest, 360
F.3d at 1119 ("[E]mployers are liable for failing to remedy or prevent a hostile
work environment of which management-level employees knew, or in the exercise
of reasonable care should have known." (quoting Ellison, 924 F.2d at 881)).
When Miles first asked Mead about the status of her June 2001 written complaint,
he responded that she would create a lot of enemies because she filed the
complaint—indicating that Boeing anticipated she would suffer retaliation for her
complaint. See E.R.45-46 (Miles Dep. at 388, 391-92). In July 2001 Miles went
to Clark to report the retaliatory "war" comment by Bonomo, but Clark told
her—before she could make the report—that Boeing would not address any more
of her complaints. E.R.40 (Miles Dep. at 312-14). Miles also complained to
Nunimaker about her coworkers' behavior, but his only response was to call her a
troublemaker. E.R.39 (Miles Dep. at 285-86). Miles complained about retaliation
to Boeing HR in writing twice thereafter, to no avail. See E.R.68-78 (Miles Aff't
Atts. 18 (March 22, 2002 complaint to Boeing), 19 (October 10, 2002 complaint to
Boeing)). As mentioned previously, from June 2001 through early 2003 Boeing's
"remedial" response to Miles' complaints was simply to ask her if she would like
to move to another department. E.R.43-44 (Miles Dep. at 323-28). Boeing's
response to her complaints was inadequate as a matter of law. See Swenson, 271
F.3d at 1194 ("[A]n employer does not satisfy its remedial obligation by
transferring the victim to a less desirable location.") (citation and internal
quotation omitted); Ellison, 924 F.2d at 882 ("We wholeheartedly agree with the
EEOC that a victim of sexual harassment should not have to work in a less
desirable location as a result of an employer's remedy for sexual harassment.")
(citation omitted).
Despite the Commission clearly stating in its response to Boeing's summary
judgment motion that it was presenting a claim of retaliatory harassment, see
Plaintiffs' Joint Response to Defendants' Motion for Summary Judgment, R.116,
at 13-14, the district court completely ignored the Commission's retaliatory
harassment claim and instead addressed some—but not all—of the conduct
alleged in support of that claim as discrete adverse actions, finding that none
supported a claim of "retaliation." E.R.136-42 (Order, at 9-15). The district
court's treatment of the Commission's retaliatory harassment claim was
completely erroneous. Analyzed correctly, in light of the claim presented and in
accordance with proper summary judgment principles, the Commission's evidence
is more than sufficient to defeat summary judgment. A reasonable factfinder
could easily conclude on this record that the harassment endured by Miles was
sufficiently severe or pervasive to alter the conditions of her employment and
create an abusive working environment, and that the harassment took place
because of her protected activity. In addition, the evidence that Miles complained
repeatedly to Boeing, and that she suffered emotional and physical harm as a
result of the retaliatory harassment, shows that the conduct was subjectively
hostile to her. There is also ample evidence that Boeing either ignored her
complaints or criticized her for complaining, and took no corrective action which
was reasonably calculated to remedy the retaliation. Accordingly, the district
court's grant of summary judgment to Boeing on this claim is contrary to the
evidence and applicable legal standards and amounts to reversible error.
Conclusion
For the foregoing reasons, the Commission respectfully requests that this
Court reverse the district court's grant of summary judgment to Boeing and
remand the case for trial.
Respectfully submitted,
JAMES L. LEE
Deputy General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
__________________________
JAMES M. TUCKER
Appellate Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7024
Washington, D.C. 20507
(202) 663-4870
James.Tucker@EEOC.gov
Certificate of Compliance
I certify that the foregoing Brief of Plaintiff-Appellant the U.S. Equal
Employment Opportunity Commission complies with the type-volume limitations
set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief
contains 12,044 words, from the Statement of Jurisdiction through the Conclusion,
as determined by the Word Perfect 9 word-counting program, and was prepared
using the WordPerfect 9.0 word-processing system in 14-point proportionally
spaced type for text and 14-point type for footnotes.
__________________________
JAMES M. TUCKER
Appellate Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel, Appellate Services Division
1801 L Street, N.W., Room 7024
Washington, D.C. 20507
(202) 663-4870
James.Tucker@EEOC.gov
ADDENDUM
CERTIFICATE OF SERVICE
I hereby certify that one original and fifteen copies of the foregoing Brief of
Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission were sent this 2nd
day of May,2006, by FedEx Next Day Air delivery, postage prepaid, to Cathy Catterson,
Clerk of Court,United States Court of Appeals for the Ninth Circuit, 95 Seventh Street,
San Francisco, CA 94103. I further certify that two copies of the foregoing Brief of
Plaintiff-Appellant the U.S.
Equal Employment Opportunity Commission were sent this 2nd day of May 2006, by FedEx
Next Day Air delivery, postage prepaid, to Plaintiff-Intervenor-Appellant and counsel of
record for the Defendants-Appellees at the addresses below:
Plaintiff-Intervenor-Appellant: Kelley J. Miles (pro se)
734 W. Gail Ct.
Gilbert, Arizona 85233
Counsel for Defendants-Appellees: Tibor Nagy, Jr., Esq.
Erica Rocush, Esq.
Snell & Wilmer LLP
One South Church Ave., Ste. 1500
Tucson, Arizona 85701
_____________________________
JAMES M. TUCKER
Appellate Attorney
U.S. Equal Employment
Opportunity Commission
Office of General Counsel, Appellate Services Division
1801 L. St., N.W., Rm. 7024
Washington, D.C. 20507
(202) 663-4870
James.Tucker@eeoc.gov
********************************************************************************
<<FOOTNOTES>>
<1> These issues were before the district court in Boeing’s motion for summary judgment
as well as the Commission’s response thereto. See Plaintiffs’ Joint Response to
Defendants’ Motion for Summary Judgment, R.116, at 4, 10, 12, 13, 19, 23-26 (filed Mar.
7, 2005). The district court ruled against the Commission on each of these issues.
E.R.130-42 (EEOC & Miles v. The Boeing Co., et al., No. 03-1210, Order, at 3-15 (D. Ariz.
Sept. 28, 2005)).
<3> Dick Mead, the Boeing HR staff member who ultimately investigated Miles’ later
written complaint to Boeing about Cervantes’ conduct, stated his belief, based on his
experience, that “most harassers will harass more than one person.” E.R.114 (Mead Dep.
at 37). However, there is no evidence that Boeing ever investigated whether Cervantes
was harassing any of the coworkers of his victims, prior to Miles’ first written
complaint to Boeing HR. Even after investigating Miles’ written complaint about
Cervantes’ conduct, Mead “[f]rankly . . . didn’t care” if Cervantes had harassed other
employees. E.R.115 (Mead Dep. at 38).
<3> There is no evidence that Miles’ tool box problems ceased because of any actions
taken by Boeing in response to her complaints, and Boeing does not so argue. Cf. Fuller
v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (refusing to “make liability
for ratification of past harassment turn on the fortuity of whether the harasser, as he
did here, voluntarily elects to cease his activities”).
<4> The district court cited this Court’s decision in Costa for the proposition that
“[w]ithout proof of unlawful motivation, the use of the word “bitch” does not establish
proof of gender discrimination as a matter of law.” E.R.140 (Order at 13) (citing Costa,
299 F.3d at 861-62.). The district court mistakenly concluded that the Commission was
required to establish as a matter of law that Miles’ coworkers’ repeated namecalling was
because of her sex. Clearly, the Commission was only required to present evidence
sufficient to create a genuine factual dispute as to whether the harassment was because
of her sex. See Porter, 419 F.3d at 891 (summary judgment standard). Moreover, Costa
stands for the proposition that in the proper factual context, the use of such extremely
pejorative terms can be interpreted by a reasonable finder of fact as evidence of
sex-based hostility, and can create a genuine factual issue on this point. 299 F.3d at
861-62 & n.9. Therefore, on this point, Costa supports the Commission’s position.
<5> While Ray cited Harris for the proper test to apply when analyzing claims of
retaliatory harassment, the Harris “severe or pervasive” test is inconsistent with this
Court’s standard for actionable retaliation. Harris and its progeny address claims of
hostile work environment harassment brought under section 703(a) of Title VII, and apply
the “severe or pervasive” test to determine whether the challenged conduct was
sufficiently egregious to be actionable under the limiting language of that section of
the statute—that is, to determine whether the conduct amounted to a change in the “terms,
conditions, or privileges” of employment. Harris, 510 U.S. at 21; Faragher, 510 U.S. at
786-877; 42 U.S.C. § 2000e-2(a)(1) (attached in Addendum at A-1). However, the
antiretaliation provision of Title VII, section 704(a), is not limited by its terms to
conduct which affects a term, condition, or privilege of employment. See Ray, 217 F.3d
at 1243; 42 U.S.C. § 2000e-3(a) (attached in Addendum at A-2). Accordingly, applying the
“severe or pervasive” test in the retaliation context yields the incongruent result of
imposing a more restrictive standard for actionable retaliatory harassment—the “paradigm”
of retaliation—than for other actionable forms of retaliation. Nevertheless, we believe
the Commission’s evidence is more than sufficient to create a jury question under the
“severe or pervasive” standard applied by this Court.