IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BILLIE R. BANKS,
GENERAL MOTORS, LLC; AKA GM Components Holdings, LLC; FKA Delphi Automotive Systems, LLC; AKA Dph-Das, LLC; FKA General Motors Corporation,
On Appeal from the United States District Court
for the Western District of New York
Hon. William M. Skretny, Judge
Case No. 14-cv-970
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF
APPELLANT AND IN FAVOR OF REVERSAL
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
GAIL S. COLEMAN
Office of General Counsel
131 M Street, N.E., 5th Floor
Washington, D.C. 20507
Table of Contents
Table of Authorities............................................................................. iii
Statement of Interest............................................................................. 1
Statement of the Issues......................................................................... 2
Statement of the Case........................................................................... 3
I. Statement of Facts........................................................................ 3
A. Hostile Work Environment................................................. 4
B. Internal Complaints.............................................................. 9
C. Disability Leave and Return to Work............................... 10
1. Disability Benefits.......................................................... 10
2. Return-to-Work Medical Examination........................ 12
3. Demotion........................................................................ 14
4. GM’s Desire to Remove Banks from Lockport........... 16
II. District Court’s Decisions........................................................ 16
I. A jury could find that Banks endured race- and/or sex-based harassment sufficient to constitute a hostile work environment under Title VII............................................... 19
II. A jury could find that Banks’s demotion was an adverse action for purposes of her discrimination and retaliation claims..................................................................................... 26
III. A jury could find that the two-month suspension of Banks’s disability benefits was an adverse action for purposes of her retaliation claim........................................ 30
IV. A jury could find a causal connection between the plant doctor’s delay in allowing Banks to return from disability leave and her filing of an EEOC charge, because the doctor repeatedly referred to the charge during the four-month authorization process.......................................................... 32
Certificate of Compliance
Table of Authorities
Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).................................... 20
Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008)......... 28, 30
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) 27, 28, 30-32
Chambers v. District of Columbia, No. 19-7098,
2021 WL 1784792 (D.C. Cir. May 5, 2021)......................................... 27
Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000)................. 21, 24
Duplin v. City of New York, 888 F.3d 612 (2d Cir. 2018).............. 34, 35
Feingold v. New York, 366 F.3d 138 (2d Cir. 2004)....................... 21, 27
Fox v. Costco Wholesale Corp., 918 F.3d 65 (2d Cir. 2019).................. 28
Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005).............................. 22
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010)......... 21
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).............................. 20, 26
Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015)................ 34
Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012).......................... 29
Moll v. Telesector Res. Grp., Inc., 760 F.3d 198 (2d Cir. 2014)............ 20
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)................ 20
Patane v. Clark, 508 F.3d 106 (2d Cir. 2007)...................... 20, 24, 34-35
Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004)............................... 24
Pucino v. Verizon Wireless Comm’ns, Inc., 618 F.3d 112 (2d Cir. 2010)......................................................................................................... 23, 25
Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001)................................... 22
Rasmy v. Marriott Int’l, Inc., 952 F.3d 379 (2d Cir. 2020)............ 22, 26
Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426 (2d Cir. 1999)............................................................................................................... 35
Roy v. Correct Care Sols., LLC, 914 F.3d 52 (1st Cir. 2019)................ 23
Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006)...... 25
Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003).................................... 23
White v. Pauly, 137 S. Ct. 548 (2017)..................................................... 3
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq... 1, 27
Rules and Regulations
Fed. R. App. P. 29(a)............................................................................. 2
Brief for the United States as Amicus Curiae, Peterson v. Linear
Controls, Inc., 140 S. Ct. 2841 (2020) (No. 18-1401),
2020 WL 1433451................................................................................. 27
Statement of Interest
Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff Billie Banks, a black woman, alleges that defendant General Motors (“GM”) violated Title VII by demoting her and subjecting her to a hostile work environment because of her race and sex, and then retaliating against her for complaining.
The district court made several legal errors in granting summary judgment to GM. It required Banks to show that discriminatory harassment was both pervasive and severe, although pervasive harassment, standing alone, can violate Title VII, and it downplayed the relevance of conduct that was not expressly discriminatory or that was not directed at Banks. It erroneously held that no reasonable jury could view Banks’s demotion or two-month suspension of disability benefits as adverse actions under the governing legal standards. Finally, the court held that no reasonable jury could find a causal link between the plant doctor’s delay in authorizing Banks to return to work and her filing of an EEOC charge, even though the doctor expressly and repeatedly referenced the charge during the authorization process.
Because the EEOC has a substantial interest in the proper interpretation of the laws it enforces, it files this brief pursuant to Federal Rule of Appellate Procedure 29(a).
Statement of the Issues
1. Could a reasonable jury find, based on the totality of the circumstances, that Banks endured a hostile work environment because of her race and/or sex?
2. Could a reasonable jury find that GM took an adverse action for purposes of Banks’s discrimination and retaliation claims when it brought her back from disability leave with a small raise but stripped her of her supervisory title and responsibilities, transferred her to an undesirable shift where she had little opportunity to engage with members of senior management, and only gave her work beneath her skill and experience level?
3. Given the Supreme Court’s holding that a thirty-seven-day suspension without pay can constitute a retaliatory adverse action, could a reasonable jury assessing Banks’s retaliation claim find that the sixty-one-day suspension of her disability benefits was an adverse action?
4. Could a reasonable jury find a causal connection between the plant doctor’s refusal to authorize Banks’s return to work and Banks’s filing of an EEOC charge, based on the doctor’s repeated, pointed references to the charge during the four-month authorization process?
Statement of the Case
I. Statement of Facts
GM hired Banks as a manufacturing supervisor at its Lockport, New York, plant in 1996. JA.564. In 1999, Delphi Automotive Systems acquired the plant from GM, and GM reacquired it in October 2009. JA.22. Banks remained employed at the Lockport plant throughout this time. JA.564-65. By the time GM regained ownership, Banks had been promoted to site safety supervisor. JA.565. She was the first African American and first woman to hold that position, and she was the highest-ranking African American at the plant. JA.251,1668. Of the 180 salaried employees at Lockport, only six were black. JA.1101.
Banks alleges that she endured a hostile work environment because of her race and gender. Focusing on the time frame beginning in October 2009, she routinely experienced hostility and insubordination unlike anything directed at her white colleagues. The evidence includes, but is not limited to, the following:
A. Hostile Work Environment
Banks was forced to interact with manager Warren Stoll, who had called her a “dumb n****r” in 2004. JA.312,1605. She also had to interact with safety representative Jared Richardson, who called himself “a self-proclaimed redneck.” JA.93-94.
Richardson reported to Banks from 2010 to 2012. JA.91,112-13. He regularly criticized her vocabulary, stated that her diction was not understandable, and asked, “How did you get this job?” and “Did you go to school?” JA.93,116,570. He refused to do work that she assigned him, frequently telling her in front of others, “That’s dumb, I’m not doing it.” JA.93,96. Banks ended up doing his work. JA.94. Other managers and trainers told Banks that Richardson “has been talking a lot of S-H-I-T about you.” JA.104. Banks never saw Richardson acting disrespectfully to white managers. JA.94. She complained to human resources director Jim Fennell, but Fennell refused to intervene. JA.96,112.
Other employees also defied Banks’s instructions. From 2011 to 2013, Ernie Manera, the union representative in charge of ergonomics and safety, flatly refused to perform the ergonomics portion of his job. JA.212-14. Banks testified that she never saw Manera behave this way with white managers. JA.215,221. She ended up doing the work in his place. JA.218. Likewise, month after month, union safety trainer George Miller refused to give Banks timely data that she needed to prepare a monthly presentation for the plant manager. JA.175-76. Banks resorted to using a white intermediary to obtain the information. JA.177-79.
In addition, Banks experienced offensive sex-based comments on an ongoing basis. From 2009 to 2012, manager Charlie Mosher told her that she was beautiful and made “mm, mm, mm” sounds. He often looked her up and down, and asked, “Are you cold or just excited to see me?” while staring at her breasts. JA.300-01,605-06. From 2009 to 2013, group leader John Adams would ride slowly behind Banks on his scooter, staring at her rear end. Then he would pull around in front of her, saying, “Looking good back there.” JA.302. From 2009 until Banks went out on disability leave in January 2016, engineer Dave Farron stared at her in a provocative way and commented on her shape. JA.299-300.
On top of this, Banks experienced singular incidents of hostility unlike anything that white employees encountered. In 2010, union representatives Todd McNall and Chuck Roberts “just lit into [Banks]” in a meeting and accused her of being a “liar.” JA.124,128-30. In 2013, facility manager Tom Rush rolled up a document and shook it at Banks, pointed his finger in her face, and yelled at her loudly enough for people forty feet away to hear him. The tirade lasted for thirty to forty minutes. JA.223-25. On two occasions in 2013, Miller called her an “idiot” while training other employees, telling the trainees that Banks did not know what she was doing and would cost GM millions of dollars in Occupational Safety and Health Administration (“OSHA”) fees. JA.1668-69. Two of the attendees reported his comments to Banks. JA.198,206,1669-70.
In 2015, Miller conducted a CPR training at which Banks was present, in which he stated, “Suppose we got Billie in the house doing drugs and she overdoses and then we have to call EMS for Narcan.” When Banks objected, he offered an alternative hypothetical in which an Asian employee in the room got electrocuted by his wok and rice flew everywhere. JA.181,183. Also in 2015, when Banks told union plant chairman Michael Branch that she found one of his jokes racially offensive, Branch responded “that he is just a redneck with his [hat] turned around backwards.” JA.528,603.
That same year, Banks was in a meeting with a black union employee and a white engineering supervisor when a white area manager, Scott Vollmer, looked into the room and said, “I think I need to come in there and even it out, what do you think?” When Banks asked Vollmer what he meant, Vollmer replied, “I didn’t mean that, I was just meaning I need to come in there and even out the room for management.” JA.298. Because Banks was a manager, there were already more managers than non-managers in the room.
Banks was also aware of racism and sexism in her work environment that did not target her personally. When she walked through the production facility, she encountered pin-up calendars of scantily clad women, “girly magazines,” and pictures of nude women. JA.281-83,1211. She “continually” saw Confederate flags on lockers, T-shirts, and baseball caps. JA.281,599.
Moreover, in 2014, David Luchey, a black employee, told her that he had seen a noose hanging over a crane in the weld shop. JA.596,1224. Luchey told her that he had been called “n****r” on the production floor, that a white coworker told him she hates “n****rs,” that one of his supervisors called him a monkey and another referred to him as his “mocha millwright,” and that white employees referred to poor workmanship as “n****rized.” JA.598. Luchey also told her about a black test dummy that was dirty and shirtless, with tattered pants and “nappy” hair, being driven around the plant in a motorized vehicle. JA.598.
Tyrone Wilson, another black employee, told Banks that a coworker called him the n-word every day. JA.604. In 2015, Banks learned that manufacturing manager Mark Inchiosa had called Lonnie Everett, a black man, a “silverback,” which both Everett and Banks understood to mean “gorilla.” JA.599,1650. And in 2017, while she was on disability leave, Banks learned that two black employees had found a noose on a tugger vehicle assigned to them. JA.609.
B. Internal Complaints
Banks complained to the human resources department about the “[i]nherent difficulty of being a[n] African-American Female working in a homogenous environment where ridicule and disrespect go unaddressed.” JA.1754. She also complained to the “Awareline”—a third-party reporting service that GM provides for its employees. JA.466. She told the Awareline investigator, “I am an African American female and … have been the target of pervasive unfair treatment, unprovoked hostile aggression, racial profiling and exposure to a culturally and diversity insensitive organization.” JA.1753.
GM introduced evidence that it investigated Banks’s complaints and responded to at least some of them. JA.27,29. Banks testified that no one ever got back to her and that the hostile work environment continued unabated. JA.230. She filed a discrimination charge with the EEOC on October 24, 2013. JA.582.
C. Disability Leave and Return to Work
Banks took disability leave several times for mental health issues stemming from the harassment, including an extended leave for depression and anxiety beginning on September 9, 2013. JA.609,1955.
1. Disability Benefits
Under GM’s policy, salaried employees are entitled to 100% of their salary for the first thirteen weeks of leave and then 75% for the next thirty-nine weeks. JA.582. However, on November 22, 2013—only ten weeks after Banks began her leave and one month after she filed her EEOC charge—GM terminated her benefits entirely. JA.582. Banks called GM to ask about cashing in unused vacation time so that she would have some income, but GM would not permit this. JA.582. On December 9, 2013, Banks amended her EEOC charge to include the termination of her disability benefits. JA.582. Shortly before Christmas, Banks related, personnel director Susan Gouthro called her and said in a gloating manner, “So I hear your sick leave benefits are cut off, that must be tough.” JA.582.
As Christmas approached, Banks was unable to pay her bills or support her family. Automatic debits were returned for insufficient funds; creditors notified reporting agencies that payments were late; Banks incurred late-payment charges; and the bank cancelled her overdraft protection. With no idea if or when GM would reinstate her disability benefits, and no idea when she would be able to return to work, Banks’s mental state deteriorated. She withdrew from her family and endured regular panic attacks, headaches, insomnia, and digestive problems. JA.1957-58.
GM asserted in litigation that it stopped Banks’s benefits because its plant psychiatrist had examined her in late November 2013 and determined that she was capable of returning to work. JA.1981. Banks, however, testified that she did not speak with GM’s psychiatrist until May 2014. JA.1957. She successfully appealed the denial of benefits, which were reinstated retroactively on January 23, 2014. JA.1981.
2. Return-to-Work Medical Examination
Banks sought to return from disability leave in May 2014. JA.583. When she had previously returned from a mental health leave, her treating psychiatrist had released her to work, the plant doctor had signed off on it, and she was allowed to come back. JA.585. This time, even though her treating psychiatrist and the plant doctor agreed that she was ready to return to work, GM required her to get additional approval from its own psychiatrist, Dr. Jones. JA.340-41,583-84.
Dr. Jones never met with Banks in person. JA.340-41. When he spoke to her on the phone, he told her that he understood she had filed an EEOC charge, an Awareline complaint, and a worker’s compensation claim (the last of which she had not done). JA.584. Banks said that this was an inappropriate subject, and Dr. Jones told her that he could move the conversation however he wanted. JA.338. Overriding her treating physician and the plant doctor, Dr. Jones told Banks that she needed to work on her conflict-resolution skills and refused to let her return to work. JA.339.
Banks amended her EEOC charge in July 2014. JA.473. In August 2014, the EEOC issued Banks a right-to-sue letter. R.1-1 (Charge Dismissal). The next month, she once again spoke with Dr. Jones over the phone—this time, with Gouthro also on the line. JA.358-59. Dr. Jones remarked that Banks had lost her EEOC claim, her [nonexistent] worker’s compensation claim, and her Awareline claim. “We didn’t find anything so that’s over, so are you ready to come back to work?” he said. JA.343. This time, he gave his approval. JA.343.
Just four months into Banks’s leave, Gouthro posted her job. JA.348,1105. Assistant plant manager Dan Hesch testified that it was inappropriate to post a job so quickly when an employee is out on disability leave. JA.1038. Moreover, Hesch testified, the job should not have been posted without the approval of the human resources management team, which did not occur. JA.1038. GM offered the position to Robert Duke in late March. JA.898. In early April, Banks notified GM that her treating psychiatrist had cleared her to return to work. JA.583. GM proceeded with the hiring process anyway, and Duke started as the new safety supervisor in May. JA.451,899.
When Banks returned to work in October 2014, Hesch and Gouthro sent a plant-wide email announcing that she was now “the off shift Safety Representative supporting manufacturing operations on 2nd/3rd shift” and “the off shift Contact Person for Labor Relations.” JA.1621. Thus, everyone knew that Banks was no longer the safety supervisor.
Although GM gave Banks a small raise and she returned at the same rank, JA.1888-89, she had no supervisory responsibilities and was no longer involved in strategic planning, JA.448,913-15. Rather, she performed the same “menial tasks” that she had previously assigned to a subordinate. JA.589. Her new hours were from 3:00 p.m. until midnight, as compared to her previous shift of 7:30 a.m. to 4:30 p.m. JA.1710. Because members of senior management left work by 5:00, JA.943, Banks had little opportunity to interact with them.
Banks complained repeatedly to Duke and Gouthro that she was excluded, isolated, and in a “non-value-added” position. JA.320-22,351-52. After four and a half months, Gouthro moved Banks to a different shift (still not her regular or desired one) and assigned her some primary responsibilities, but Duke did not relinquish control over those issue areas and continued to exclude Banks from key meetings. JA.1710.
Banks filed this lawsuit in November 2014. R.1 (Complaint).
4. GM’s Desire to Remove Banks from Lockport
In July 2015, GM asked Banks whether she would accept a transfer to the safety supervisor position in Cincinnati. Banks declined because she needed to stay near her ailing father. JA.596. Iturial Coronado from the corporate safety department emailed Gouthro, “Bad news, now it’s not possible for her …. Sorry, we lost this battle but not the war.” JA.1624.
Banks took disability leave again in January 2016. JA.344. As of the time of her deposition, she had not returned to work. JA.344.
II. District Court’s Decisions
Banks filed suit under Title VII. She alleged that GM had demoted her and subjected her to a hostile work environment because of her race and sex, and had retaliated against her for complaining. R.1 at 5 (Complaint). The district court granted summary judgment to GM on all claims. SA.72.
With respect to the hostile environment claim, the court stated that, “[w]hile other employees endured a steady barrage of racial insult and epithet, Plaintiff herself did not[.]” SA.34. The relevant conduct directed at Banks, the court said, consisted of “incidents … of using derogatory, but non-ethnic offending terms (calling her an idiot or refusing to provide her with needed data, depriving her of support staff, or giving her subordinate’s work to perform in addition to her own duties).” SA.34. Additionally, the court said, Banks “pointed to instances when she was ignored or faced disrespect from coworkers or subordinates[, and] [s]he complains of about four sexually disparaging comments addressed to her[.]” SA.34. She was not threatened, the court said, and even though her work was “impeded and interfered with,” she suffered no adverse consequences “save for her stress claim.” SA.34.
“While there are numerous instances cited by Plaintiff over a five-year span (from 2010 until filing EEOC charges in 2014),” the court concluded, “they remain episodic, without events being connected by a common actor or repeated incidents. While frequent, the incidents alleged are not severe, especially the incidents that occurred to Plaintiff directly.” SA.34. Thus the court held, no reasonable jury could find a hostile work environment. SA.35.
The court held that GM had not committed an adverse action for purposes of her discrimination or relation claims by bringing Banks back to work as an off-shift safety representative. SA.31,42. “[W]hen Plaintiff was rehired,” the court said, “she was brought to her previous level and at higher pay, even though her job title and responsibilities changed. Whether this change in job title and responsibilities constitutes a demotion raises an issue of fact. That issue, however, is not material because Plaintiff did not claim a loss of salary or benefits after returning from her medical leave.” SA.31 (internal citation omitted). The court also said that the shift change was not an adverse action because it was “temporary, for a few weeks.” SA.42.
Initially, the court found a genuine issue of material fact as to whether the termination of Banks’s disability benefits constituted an adverse action for purposes of her retaliation claim, SA.37, but it reversed itself on reconsideration, SA.69-70. Ruling that the benefits had not been terminated, but merely delayed, the court held that “[t]he denial and eventual payment upon of appeal of disability benefits is a trivial harm and not so significant to state a prima facie claim for retaliation under Title VII[.]” SA.69.
Finally, the court held that Banks could not establish retaliation based on the denial of her return-to-work authorization in May 2014. Even thought there was an “apparent causal connection” when Dr. Jones referenced the EEOC charge while denying return-to-work authorization, the court said, the four-month interval between the charge filing and Dr. Jones’s decision put it “at the outer limit of what would be deemed a reasonable causal connection between those two events.” SA.39-40. Without evidence that Dr. Jones harbored personal animus, the court said, no jury could find retaliatory intent. SA.40-41.
I. A jury could find that Banks endured race- and/or sex-based harassment sufficient to constitute a hostile work environment under Title VII.
Title VII protects employees from “‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). An actionable hostile work environment must be both subjectively and objectively offensive. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007).
“To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (citation omitted). This analysis must consider the entire course of conduct, because “[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (citation omitted). Incidents that are not facially discriminatory “may sometimes be used to establish a course of sex [and/or race]-based discrimination—for example, where the same individual is accused of multiple acts of harassment, some overtly [discriminatory] and some not.” Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002); see also Moll, 760 F.3d at 203 (similar).
Banks alleges that she endured a hostile work environment because of race and/or sex. “[W]here two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). “‘[T]he intersection of race and gender often distorts or ignores the particular nature of [an individual’s] experiences’ including a specific set of stereotypes and assumptions not shared by all persons of that race or gender.” Id. (quoting Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994)). Thus, a court may consider allegations of racial animosity when evaluating a claim of sex discrimination, and vice versa. Feingold v. New York, 366 F.3d 138, 151 (2d Cir. 2004). Each type of harassment may “exacerbate” the effect of the other. Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000), overruled in part on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
Here, Banks has alleged widespread, long-term, and pervasive race- and sex-based hostility. Although not all the conduct was expressly discriminatory, much of it was committed by individuals who indicated possible discriminatory animus in other ways.
Richardson described himself as a “redneck,” JA.94, which “can suggest racial hostility.” Galdamez v. Potter, 415 F.3d 1015, 1024 n.6 (9th Cir. 2005) (citing cases). Miller expressly disparaged Banks and an Asian coworker based on racial stereotypes. See supra p. 7. If a jury concludes that their words reveal racial prejudice, it may infer that their facially nondiscriminatory harassment was, in fact, due to racism. See Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.”); Raniola v. Bratton, 243 F.3d 610, 622 (2d Cir. 2001) (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” (quoting Andrews v. City of Phila., 895 F.2d 1469, 1484 (3d Cir. 1990)).
The same is true of the co-workers who did not use expressly racist terms but who never treated white employees the way they treated Banks. A jury could find from this difference in treatment that these individuals, too, were motivated by racial animus. See Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir. 2003) (jury could find that race was a motivating factor in part because perpetrator “treated white employees with contempt, but was warm with non-white employees”).
The district court noted “four sexually disparaging comments,” SA.34, but Banks testified that, from 2009 through 2015, she repeatedly and consistently endured offensive comments about her body, including remarks about her breasts and rear end. See supra p. 6; see also Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019) (observing that “a reasonable jury could infer that the comment about Roy’s ‘ass’ was made in part because of her sex,” given the context of the alleged harassers “sexualizing Roy and … emphasizing aspects of her appearance”). “[A] plaintiff, to prevail, need not recount each and every instance of abuse to show pervasiveness.” Pucino v. Verizon Wireless Comm’ns, Inc., 618 F.3d 112, 119-20 (2d Cir. 2010). “If a jury were to credit [the plaintiff’s] general allegations of constant abuse … it could reasonably find pervasive harassment, even in the absence of specific details about each incident.” Id. at 120 (citation omitted).
The district court also seemed to downplay the relevance of sexism and racism that was not directed at Banks, but of which she was aware, including nooses, use of the n-word, pin-up calendars of scantily dressed women, “girly magazines” and pictures of nude women, as well as displays of the Confederate flag. Compare SA.34 with supra pp. 8-9. “The fact that much of this offensive material was not directed specifically at [Banks] … does not, as a matter of law, preclude a jury from finding that the conduct subjected [her] to a hostile work environment based on her [race and] sex.” Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir. 2004); see also Patane, 508 F.3d at 114 (discriminatory behavior not specifically directed at plaintiff can nonetheless contribute to a hostile work environment). “Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.” Cruz, 202 F.3d at 570.
The district court erroneously held that Banks could not establish a hostile work environment because the incidents of which she complains were “frequent … [but] not severe.” SA.34. When a plaintiff alleges an “ongoing pattern of sexually [and/or racially] offensive and humiliating conduct,” the severity of any single act “is not dispositive.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006). What matters is the totality of the circumstances. Id. Abuse need not be both severe and pervasive to establish a hostile working environment; it need only be “sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered [the employee’s] working conditions.” Pucino, 618 F.3d at 119. “These determinations are to be made on a case by case basis considering all the individual facts at hand.” Schiano, 445 F.3d at 607.
Finally, the court erred by focusing on the absence of tangible harm. See SA.34 (“[S]he suffered no adverse consequences … save her stress claim.”). “[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” Harris, 510 U.S. at 22. Accordingly, as this Court explained in Rasmy, a plaintiff need not show that she has been physically threatened or that the harassment interfered with her job performance. “This analysis, in our view, misreads Title VII.… [I]t ‘ignores the very reason that Title VII prohibits discriminatorily hostile work environments.’” Rasmy, 952 F.3d at 390 (quoting EEOC Br. as Amicus Curiae). Evidence that harassment drove a plaintiff to anti-anxiety medication “arguably gives rise to a strong inference that [her] workplace conditions had been materially altered.” Id.
II. A jury could find that Banks’s demotion was an adverse action for purposes of her discrimination and retaliation claims.
The district court failed to apply the correct legal standards in holding that no reasonable jury could find Banks’s demotion to be an adverse action. This Court has stated that Title VII’s anti-discrimination provision prohibits actions that are “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Feingold, 366 F.3d at 152 (citation omitted). The anti-retaliation provision prohibits any action that “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted). Banks’s demotion satisfies both standards.
The district court wrongly held that Banks’s demotion was not an adverse action for two reasons. First, it stated that the shift change was “temporary, for a few weeks.” SA.42. Factually, this is incorrect—Banks worked the off-shift for four and a half months and, even then, was not returned to her original hours. JA.1710. In any event, the “short duration” of a reassignment “is [not] a proper basis for finding, as a matter of law, that … no adverse employment action occurred.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).
Second, the court held that the demotion was not an adverse action because Banks did not allege a decrease in salary or benefits. SA.31. However, a reassignment can be adverse even without financial consequences when, for example, it involves “a less distinguished title, … significantly diminished material responsibilities, or other indices … unique to a particular situation.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 71-72 (2d Cir. 2019) (citation omitted) (addressing discrimination claim). For purposes of a retaliation claim, “[c]ommon sense suggests that one good way to discourage an employee … from bringing discrimination charges would be to insist that she spend more time performing … more arduous duties and less time performing those that are easier or more agreeable.” Burlington N., 548 U.S. at 70-71.
Here, Banks returned from her disability leave with a less distinguished title (“safety representative” rather than “safety supervisor”), JA.1621, and significantly diminished responsibilities. She no longer supervised anyone and was no longer involved in strategic planning. JA.448,913-15. Instead, she engaged in “menial tasks” that she had previously assigned to a subordinate. JA.589. Her new hours limited her interaction with members of senior management. JA.943,1710.
Even when Gouthro finally moved Banks to a new shift after four and a half months and assigned her primary responsibility over certain issue areas, Duke refused to relinquish control and continued to exclude her from key meetings. JA.1710. Banks complained repeatedly that she was excluded, isolated, and in a “non-value-added position.” JA.320-22,351-52.
These changes significantly affected the nature of Banks’s job, allowing a jury to find they were adverse actions for purposes of her discrimination claim. See, e.g., Lore v. City of Syracuse, 670 F.3d 127, 171 (2d Cir. 2012) (jury could find adverse action where public information officer in police chief’s office was transferred to positions including supervising uniformed patrol officers and then serving in a community relations unit, even though transfers did not affect rank or salary); Brady, 531 F.3d at 134 (jury could find that pharmacy assistant’s transfer to job collecting shopping carts and garbage in the parking lot was adverse action, even though transfer did not affect wages or benefits). A fortiori, a jury could also find that these changes might have deterred a reasonable employee in Banks’s position from making or supporting a charge of discrimination, thus satisfying the Burlington Northern standard for retaliation.
III. A jury could find that the two-month suspension of Banks’s disability benefits was an adverse action for purposes of her retaliation claim.
The district court ignored Supreme Court precedent in holding that the sixty-one-day suspension of Banks’s disability benefits could not constitute an adverse action for purposes of her retaliation claim. In Burlington Northern, the employer suspended the plaintiff for thirty-seven days without pay, allegedly in retaliation for her EEOC charge. It subsequently paid her retroactively for the thirty-seven days. The Supreme Court upheld the jury’s finding that the suspension was a materially adverse action even though the employer ultimately provided backpay. 548 U.S. at 72-73.
Title VII’s anti-retaliation provision, the Court held, prohibits any action that “well might have ‘dissuaded a reasonable worker [in the plaintiff’s position] from making or supporting a charge of discrimination.’” Id. at 68-69 (citation omitted); see also id. at 70 (similar). The thirty-seven-day suspension of pay satisfied this standard, the Court held, because “[m]any reasonable employees would find a month without a paycheck to be a serious hardship” and would opt to preserve their income rather than file a charge of discrimination. Id. at 72. “[A]n indefinite suspension without pay could well act as a deterrent,” the Court said, “even if the suspended employee eventually received backpay.” Id. at 73.
Here, GM suspended Banks’s disability payments for sixty-one days—significantly longer than the thirty-seven days that the Supreme Court held actionable in Burlington Northern. Banks testified to the financial and emotional hardship of this period. See supra pp. 11-12. Even if she had known that she would ultimately be paid retroactively, which she did not, this would not have changed her inability to pay bills and support her family during that time. As in Burlington Northern, the two-month suspension might well have deterred a reasonable employee in her position from complaining of discrimination.
The district court did not acknowledge this aspect of Burlington Northern’s holding. It relied, instead, on a non-binding district court opinion that also failed to recognize that, under Burlington Northern, a thirty-seven day suspension without pay can be a materially adverse action. SA.68-69 (citing Messer v. Bd. of Educ., No. 01-CV-6129 (JFB) (CLP), 2007 WL 136027 (E.D.N.Y. Jan. 16, 2007)). The district court’s failure to apply controlling Supreme Court law is reversible error.
IV. A jury could find a causal connection between the plant doctor’s delay in allowing Banks to return from disability leave and her filing of an EEOC charge, because the doctor repeatedly referred to the charge during the four-month authorization process.
A jury could find a causal connection between Banks’s EEOC charge and Dr. Jones’s refusal to authorize her to return to work in May 2014. As the district court initially recognized, “[t]he sequence of events … is suspect.” SA.38. Whereas GM had previously allowed Banks to return to work with the approval of her treating psychiatrist and the plant doctor, this time it required her to get additional approval from Dr. Jones. JA.340-41,583-85. When Dr. Jones denied the return-to-work authorization in May 2014, he told Banks that he understood she had filed an EEOC charge. JA.584. When he subsequently granted it, he stated, “We didn’t find anything so that’s over, so are you ready to come back to work?” JA.343. As the district court noted, “The psychiatric relevance of her EEOC proceeding is questionable.” SA.38.
Although the district court recognized that “there is an apparent causal connection,” SA.39, it granted summary judgment because four months had elapsed between the time Banks filed her EEOC charge and the time Dr. Jones denied return-to-work authorization. SA.40-41. Four months, the court said, “is at the outer limit of what would be deemed a reasonable causal connection between those two events.” SA.40. In support of this proposition, the court cited exclusively to cases where a close temporal connection was the only evidence of causation. See SA.40 (citing, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)).
This Court has explained that close temporal proximity between protected conduct and an adverse action is one way to demonstrate causation, but it is not the only way. Any circumstantial evidence of retaliatory motive will suffice. See Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015).
Thus, in Duplin v. City of New York, 888 F.3d 612 (2d Cir. 2018), this Court allowed a retaliation claim to proceed even though the protected activity had occurred more than two years before the adverse action. During those two years, the plaintiff’s supervisors had “ostraciz[ed] him, giv[en] him insufficient work, and m[ade] clear to him that his career would not advance further by denying him every promotion and raise.” Id. at 626. Given the “drumbeat of retaliatory animus,” the Court said, the plaintiff’s allegations were sufficient to survive a motion to dismiss. Id.
Likewise, in Patane, this Court held that the plaintiff had adequately alleged causation even assuming that the protected activity had occurred one year before the adverse action. “Plaintiff’s claim of causal connection is not based only—or even primarily—on temporal proximity,” the Court said. 508 F.3d at 116. The Court allowed the claim to proceed because the plaintiff alleged, among other things, that she overheard her supervisor conspiring with a colleague to drive her out of her job. Id.; see also Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 447 (2d Cir. 1999) (no causation where protected activity occurred two years before adverse action, and plaintiff “failed to adduce any other evidence” suggesting retaliation), abrogated in part on other grounds by Burlington N., 548 U.S. 53.
Here, as in Duplin and Patane, the plaintiff’s claim of causal connection “is not based only—or even primarily—on temporal proximity.” Patane, 508 F.3d at 116. Dr. Jones expressly invoked Banks’s EEOC charge twice: once in denying her authorization to return to work, and again in asking her whether she was ready to return to work after noting that she had “lost” and it was “over.” JA.339,343. This is more than sufficient evidence to allow a jury to find causation.
For the foregoing reasons, the EEOC urges this Court to vacate the award of summary judgment and remand for further proceedings.
Deputy General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
s/ Gail S. Coleman
GAIL S. COLEMAN
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
February 8, 2022
Certificate of Compliance
This brief complies with the type-volume limitation of 2d Cir. R. 29.1(c) and 32.1(a)(4) and Fed. R. App. P. 29(a)(5) because it contains 6,327 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word for Office 365 ProPlus in Palatino Linotype 14 point.
s/ Gail S. Coleman
GAIL S. COLEMAN
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
Dated: February 8, 2022
 The EEOC takes no position on any other issue in this case.
 Citations are to the Joint Appendix (“JA.__”), the Special Appendix attached to the opening brief (“SA.__”), and the original record (“R.__”).
 The EEOC presents these facts in the light most favorable to Banks, in accordance with the standard of review for an award of summary judgment. See White v. Pauly, 137 S. Ct. 548, 550 (2017).
 Gouthro replaced Fennell in August 2013. JA.1399.
 Although this Court has characterized such actions as “materially” adverse, see, e.g., Feingold, 366 F.3d at 152, requiring material adversity to establish discrimination is inconsistent with the text of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The statute prohibits “discriminat[ion] … with respect to [an individual’s] compensation, terms, conditions, or privileges of employment.” Id. As the United States has explained elsewhere, the text does not include a requirement to show an additional “material” harm. See Br. for the United States as Amicus Curiae at 15-17, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020) (No. 18-1401), 2020 WL 1433451. The EEOC respectfully urges this Court to correct this error in an appropriate case. See Chambers v. District of Columbia, No. 19-7098, 2021 WL 1784792 (D.C. Cir. May 5, 2021) (granting rehearing en banc sua sponte to consider whether purely lateral transfers, or only “materially” adverse employment actions, can violate Title VII).