I. Rembert adduced more than enough evidence for a reasonable jury to find an actionable hostile work environment under Title VII. 11

A.. A reasonable jury could find that the harassment Rembert experienced was severe and/or pervasive. 14

B... The district court underestimated the impact of racist words and actions and failed to consider the cumulative effect of the daily harassment. 19

II. The district court correctly held that Rembert satisfied all administrative prerequisites to suit for his discriminatory termination and failure-to-hire claims. 25

Conclusion. 27

Certificate of Compliance

Certificate of Service

Addendum: Designation of Relevant Documents

Table of Authorities

Cases

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013).................................................................................. 13, 16

Bailey v. USF Holland, Inc., 526 F.3d 880 (6th Cir. 2008)........................................................................................ 15

Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009)............................................................................ 13, 17, 22

Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530

(6th Cir. 2020)................................................................... 15

Berryman v. SuperValu Holdings, Inc., 669 F.3d 714 (6th Cir. 2012)........................................................................ 22

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264

(4th Cir. 2015) (en banc).................................................. 16

Castleberry v. STI Grp., 863 F.3d 259 (3d Cir. 2017)...... 16

Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005)............................................................................... 14

Dixon v. Ashcroft, 392 F.3d 212 (6th Cir. 2004)............. 26

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019)............ 25

Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009)................................................................ 24

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).. 11, 12, 13, 20, 21, 24

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008)......................................................................... 13, 23

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999). 16, 24

Johnson v. United Parcel Serv., Inc., 117 F. App’x 444 (6th Cir. 2004)................................................................ 20

Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006)........................................................................................ 12

LaPlante v. City of Battle Creek, 30 F.4th 572 (6th Cir. 2022)............................................................................... 19

Nathan v. Great Lakes Water Auth., 992 F.3d 557 (6th Cir. 2021)............................................................................... 14

Newman v. Fed. Express Corp., 266 F.3d 401 (6th Cir. 2001)............................................................................... 12

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)........................................................................ 12, 21

Porter v. Erie Foods Int’l, Inc., 576 F.3d 629 (7th Cir. 2009)............................................................................... 17

Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724 (6th Cir. 2006).................................................................. 25, 26

Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421 (6th Cir. 2014).................................................................. 13, 22

Robinson v. Coca-Cola Enters., Inc., No. 1:06-cv-371, 2007 WL 2948869

(S.D. Ohio Oct. 9, 2007)................................................... 15

Scaife v. U.S. Dep’t of Veterans Affairs, 49 F.4th 1109 (7th Cir. 2022)........................................................................ 15

Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669 (6th Cir. 2000).................................................................. 12, 21

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)............................................................................... 15

Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) 15

Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008)............................................................................... 17

Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367 (6th Cir. 2002)............................................................................... 10

White v. Pauly, 137 S. Ct. 548 (2017)................................. 2

Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999)............................................................................... 21

Woods v. Cantrell, 29 F.4th 284 (5th Cir. 2022).............. 16

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010)................................................................... 10, 25, 26

Statutes

§ 2000e-2(a)(1).................................................................. 11

§ 2000e-5(f)(1)................................................................... 25

42 U.S.C. §§ 2000e et seq.................................................... 1

§ 2000e-2(a)(1).............................................................. 11

§ 2000e-5(f)(1)............................................................... 25

Rule

Fed. R. App. P. 29(a).......................................................... 1

Other Authorities

EEOC Compliance Manual § 15-VII, 2006 WL 4673430 (2006).............................................................................. 18

NAACP, History of Lynching in America, https://naacp.org/find-resources/history-explained/history-lynching-america......................... 17

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 Tyrone Rembert, a Black man, alleges in relevant part that defendant Swagelok Co. violated Title VII by subjecting him to a hostile work environment because of his race. Among other things, White supervisors and coworkers regularly called him the N-word, and one coworker threatened him with a noose.

In holding that the harassment was neither severe nor pervasive, the district court wrongly minimized the impact of Rembert’s daily abuse. It stated that there was only one death threat, discounted the N-word as merely an “offensive utterance[],” said the harassment was neither physically threatening nor humiliating, and emphasized that Rembert continued to perform his job effectively.

The EEOC has a substantial interest in the proper interpretation of the laws it enforces. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issues [1]

1. Could a reasonable jury find that Rembert experienced severe and/or pervasive harassment when, among other things, supervisors and coworkers routinely used the N-word to and about him and one coworker threatened him with a noose?

2. Did the district court correctly hold that Rembert satisfied all administrative prerequisites to suit for his discriminatory termination and failure-to-hire claims?

Statement of the Case

A. Statement of Facts [2]

Tyrone Rembert, a Black man, began work as a temporary employee for Swagelok Co. in late January 2017. EEOC Charge, R.1-1, PageID #25. Swagelok is an Ohio company that designs, manufactures, and delivers fluid-system products. Complaint, R.1, PageID #3. Rembert primarily passed out tools to the machine operators, and occasionally worked in the “grinding” area producing custom parts. Rembert Dep., R.49-1, PageID #610. His supervisor, Brett Kaiser, considered him a “quick learner” and a “good associate.” Kaiser Dep., R.51-2, PageID #1477.

Immediately after beginning his job in January and “on a daily basis” thereafter, Rembert related, he experienced an onslaught of racial hostility from White supervisors and coworkers. Rembert Dep., R.49-1, PageID ##616-618; Rembert Aff., R.61-1, PageID #2606. In the nine months of his employment, he testified, two supervisors used the N-word “45, 50 times, if not more,” and coworkers used it “a lot.”^{^[3]} Rembert Dep., R.49-1, PageID ##615, 622. Another employee confirmed that “[t]hroughout my employment at Swagelok, I heard the word ‘nigger’ being used openly by Caucasian employees, at times directed at African American employees.” Carder Aff., R.61-4, PageID #2623.

The two supervisors who harassed Rembert “often” said, “Who that N think he is.”[4] Rembert Dep., R.49-1, PageID #615. One of them told Rembert in front of two coworkers, “I see you got your Black face on.” Rembert Dep., R.49-1, PageID #618. A coworker said about Rembert, “Look at that nigger coming in here looking like a pimp every day.” Rembert Dep., R.49-1, PageID #615.

In August 2017, Rembert testified, a coworker fashioned a hose pipe into a noose, held it around his neck, and told Rembert, “This is what we do here.” Rembert Dep., R.49-1, PageID #614; EEOC Charge, R.1-1, PageID #25. Another coworker used his fingers to imitate a gun, pointed it at Rembert, and pulled the trigger. Rembert Dep., R.49-1, PageID #617.

Rembert testified that his harassers, all of whom were White, were “tight” and “all run in a circle.” Rembert Dep., R.49-1, PageID #618; Rembert Aff., R.61-1, PageID #2606. One coworker told Rembert, “We all got ugly faces and we in it together.” Rembert Dep., R.49-1, PageID #622. Rembert interpreted this as confirmation that his harassers were acting in tandem. Rembert Dep., R.49-1, PageID ##618, 622. A supervisor told three or four coworkers, in Rembert’s presence, “If something goes down, he tries something, we can take him.” Rembert Dep., R.49-1, PageID #614.

Two coworkers asked Rembert “on a daily basis,” “Are you having fun yet? You better pray.” Rembert Dep., R.49-1, PageID #618. “Like if I don’t pray,” Rembert testified, “what is going to happen.” Rembert Dep., R.49-1, PageID #618. He stated that he did pray, “All day, every day.” Rembert Dep., R.49-1, PageID #618. He explained, “I suffered in a state of fear for my safety. I found the noose in particular and comment about this is what they do here physically threatening.” Rembert Aff., R.61-1, PageID #2607.

Rembert also testified that he felt ashamed. “I … found constant use of the N-word humiliating,” he said. Rembert Aff., R.61-1, PageID #2607. “I didn’t want nobody to see or witness what I was going through, the way they was picking on me every day.” Rembert Dep., R.49-1, PageID #621.

Because of his “fear and humiliation,” Rembert stopped going to the cafeteria and ate in his car. Rembert Dep., R.49-1, PageID #616; Rembert Aff., R.61-1, PageID #2607. “I just want to go to work,” he explained. “Keep on working. Just be hurting, just keep working.” Rembert Dep., R.49-1, PageID #623.

Rembert testified that he complained to Kaiser, his supervisor, at least fourteen times, identifying the offending employees. Rembert Dep., R.49-1, PageID ##621, 641-642. Nichelle Guerrero, a human resources administrator, testified that complaining to a supervisor was appropriate. Guerrero Dep., R.51-5, PageID #1532. Kaiser advised Rembert, “Don’t pay those guys any attention. You shouldn’t have to work under these conditions.” Rembert Dep., R.49-1, PageID #620. Even when Rembert had not complained, Kaiser told him, “No one should have to work under these conditions.” Rembert Dep., R.49-1, PageID #620. Kaiser testified that this comment referred to Rembert’s workload. Kaiser Dep., R.49-6, PageID ##1039-1040. But Rembert stated that he had never complained about his workload and that Kaiser was speaking, instead, about the ongoing racial harassment. Rembert Dep., R.49-1, PageID ##620-621.

Kaiser did nothing to implement Swagelok’s asserted “zero tolerance policy.” See Kaiser Dep., R.49-6, PageID #1031 (stating policy). He did not address the harassment himself and never reported it to management or human resources. Kaiser Dep., R.49-6, PageID #1030. Kaiser testified that Rembert had never complained to him and that he was unaware of any race discrimination. Kaiser Dep., R.49-6, PageID ##1032-1033.

Swagelok made Rembert a conditional offer of permanent employment in September 2017, but revoked the offer and terminated him in October after his background check revealed a recent domestic violence conviction. Freyhauf Dep., R.49‑2, PageID ##676, 686, 703-704. After his termination, Rembert filed a charge of discrimination with the EEOC. EEOC Charge, R.1-1, PageID #25.

Rembert’s EEOC charge describes the racial harassment and says, in addition, “[I]n September I signed a salary agreement which stated that I would be hired permanently as a full time employee. On October 19, 2017, I was discharged. I believe that I have been discriminated against due to my race … and retaliated against for participating in a protected activity.” EEOC Charge, R.1-1, PageID #25.

Rembert subsequently filed this Title VII lawsuit. He alleges claims of a hostile work environment, discriminatory termination, discriminatory failure to hire, and retaliation. Complaint, R.1, PageID ##1-24.

B. District Court’s Decision [5]

The district court granted summary judgment to Swagelok on all claims. Opinion & Order (“Op.”), R.79, PageID #2889. With respect to the hostile work environment claim, the court held the harassment of which Rembert complained was not “severe or pervasive.” Op., R.79, PageID ##2887-2889. First, the court said, “Plaintiff does not identify any ‘death threats’ other than the incident where a coworker held up a hose pipe like a noose. On its own, this single occurrence is not sufficiently severe or pervasive to support Plaintiff’s hostile work environment claim.” Op., R.79, PageID #2888. “Nor is it sufficient,” the court continued, “even when combined with the frequent use of the N-word and references to ‘Black face.’ These comments, which may have been ‘offensive utterances,’ do not rise to the level of ‘physical[ly] threatening or humiliating.’” Op., R.79, PageID #2888. Finally, the court reasoned, “though Plaintiff testified that the incidents caused him hurt and stress, there is no evidence that the harassment unreasonably interfered with Plaintiff’s work performance. To the contrary, the record shows he performed well and secured an offer of permanent employment.” Op., R.79, PageID #2888.

Before addressing Rembert’s discriminatory discharge and failure-to-hire claims, the district court rejected Swagelok’s argument that Rembert had not “exhaust[ed] his administrative remedies.” Op., R.79, PageID ##2855-2857. Swagelok contended that Rembert’s EEOC charge only alleged a hostile work environment and retaliation, Brief in Support of Motion for Partial Judgment on Pleadings, R.48, PageID ##594-595, but the court disagreed, Op., R.79, PageID #2856.

The court explained that “when an aggrieved employee files an EEOC charge pro se, courts construe the complaint liberally and may consider claims that are ‘reasonably related to or grow out of the factual allegations in the EEOC charge.’” Op., R.79, PageID #2855 (quoting Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010)). It added, “[i]f the facts alleged in the charge of discrimination would prompt the EEOC ‘to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.’” Op., R.79, PageID ##2855-2856 (quoting Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 379 (6th Cir. 2002)).

Here, the court said, Rembert’s charge alleged that Swagelok had discriminated against him based on race. Op., R.79, PageID #2856. The narrative stated that he had signed a contract for permanent employment but was discharged one month later. Op., R.79, PageID #2856. “These factual allegations,” the court said, “are reasonably related to a claim for failure to hire or for wrongful termination based on race. At the least, they are sufficient to put the EEOC on notice that a race discrimination claim might arise out of Swagelok’s failure to hire Mr. Rembert as a permanent employee and Swagelok’s discharge of Mr. Rembert.” Op., R.79, PageID #2856. Because the claims were “within the scope of Plaintiff’s EEOC charge,” the court said, Rembert “exhausted his administrative remedies with respect to the race discrimination claim and is not precluded from bringing it.” Op., R.79, PageID ##2856, 2857.

Argument

I. Rembert adduced more than enough evidence for a reasonable jury to find an actionable hostile work environment under Title VII.

Title VII bars race discrimination in the “terms [and] conditions … of employment.” 42 U.S.C. § 2000e-2(a)(1). Because it is intended “to strike at the entire spectrum of disparate treatment … in employment,” the statute prohibits “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated.” Id. (citations omitted).

An actionable hostile work environment must be both subjectively and objectively offensive. Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001). Objective severity “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (citation omitted); see also Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 678 (6th Cir. 2000) (similar).

Whether harassment is sufficiently severe or pervasive to violate Title VII is “quintessentially a question of fact.” Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006) (citation omitted). Courts “look at the totality of the circumstances in determining whether the conduct created a hostile work environment.” Johnson v. Ford Motor Co., 13 F.4th 493, 505 (6th Cir. 2021). Relevant considerations “may include the frequency of the discriminatory 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.” Harris, 510 U.S. at 23. “[N]o single factor is required.” Id. A hostile work environment need not be “psychologically injurious,” nor must it affect the victim’s job performance or opportunities. Id. at 22. “[E]ven without regard to these tangible effects, the 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.” Id.

Harassment need not be both severe and pervasive; the terms are “properly considered in the disjunctive.” Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th Cir. 2009). This Court has “not exclude[d] the possibility that only one or two incidents of race-based harassment may be so severe as to constitute a hostile work environment.” Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421, 433 n.2 (6th Cir. 2014) (citing Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 575, 577 (D.C. Cir. 2013) (supervisor yelled at African-American employee, “Get out of my office, [n****r]”)). Harassment is “pervasive” if it is “ongoing,” “commonplace,” “constant,” or “continuing.” Johnson v. Ford Motor Co., 13 F.4th at 506; Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333-34 (6th Cir. 2008); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 351 (6th Cir. 2005). Daily harassment, this Court has stated, “would likely be sufficient to show that the environment … was objectively hostile.” Nathan v. Great Lakes Water Auth., 992 F.3d 557, 568 (6th Cir. 2021).

A. A reasonable jury could find that the harassment Rembert experienced was severe and/or pervasive.

As described above, Rembert testified to daily harassment. Rembert Dep., R.49-1, PageID ##616-618. In his nine months of employment, two supervisors used the N-word at least forty-five to fifty times, and coworkers said it “a lot.” Rembert Dep., R.49-1, PageID ##615, 622. Rembert was frequently the direct target of this slur. “Who that N think he is,” the two supervisors said. Rembert Dep., R.49-1, PageID ##615, 622. One supervisor told him in front of two coworkers, “I see you have your Black face on.” Rembert Dep., R.49-1, PageID #618. A coworker said, “Look at that nigger coming in here looking like a pimp every day.” Rembert Dep., R.49-1, PageID #615.

The N-word is “perhaps the most offensive and inflammatory racial slur in English.” Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 543 n.7 (6th Cir. 2020) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)). Courts have recognized that “[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘[n****r]’ by a supervisor in the presence of his subordinates.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (citation omitted); see also Bailey v. USF Holland, Inc., 526 F.3d 880, 885 (6th Cir. 2008) (N-word is “overtly racial statement”); Robinson v. Coca-Cola Enters., Inc., No. 1:06-cv-371, 2007 WL 2948869, at *8 (S.D. Ohio Oct. 9, 2007) (N-word is “malicious, repugnant, repellant, and extremely hurtful to African-Americans”).

Several courts have held or suggested that, in certain circumstances, using the N-word only one time may be sufficient to establish a hostile work environment. See, e.g., Scaife v. U.S. Dep’t of Veterans Affairs, 49 F.4th 1109, 1116 (7th Cir. 2022) (“Because the N-word is egregious, we are not concerned with the number of times the epithet is used. A one-time use of the epithet can in some circumstances warrant Title VII liability.”) (citations omitted); Woods v. Cantrell, 29 F.4th 284, 287 (5th Cir. 2022) (plaintiff alleged actionable hostile work environment where “his supervisor directly called him a ‘Lazy Monkey A___ N___’ in front of his fellow employees:); Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (“Although the resolution of that question is context-specific, it is clear that one such instance [of supervisor using N-word] can suffice to state a claim.”); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (two uses of term “porch monkey” may be sufficient to create hostile work environment because the slur “is about as odious as the use of the word ‘[n****r]’”); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (“This single incident [of supervisor yelling, “Get out of my office [n****r]”] might well have been sufficient to establish a hostile work environment.”).

A reasonable jury could find a hostile work environment here based entirely on the ubiquity of the N-word. See Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“[A]n abundance of racial epithets and racially offensive graffiti could hardly qualify as offhand or isolated. Rather, such continuous conduct may constitute severe and pervasive harassment.”). Rembert testified, though, that he endured much more.

Significantly, one of Rembert’s coworkers confronted him with a noose and told him, “This is what we do here.” Rembert Dep., R.49-1, PageID #614. A jury could reasonably find that threatening a Black man with a noose is an especially vicious form of racial harassment, given that a noose is “perhaps the ultimate symbol of racial hatred and hate crimes.” Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 640 (7th Cir. 2009). A noose is the means by which violent White mobs lynched Black people in the nineteenth and twentieth centuries to “celebrat[e] white supremacy.” NAACP, History of Lynching in America, https://naacp.org/find-resources/history-explained/history-lynching-america (last visited Aug. 5, 2022); see also Tademy v. Union Pac. Corp., 614 F.3d 1132, 1141-42, 1145 (10th Cir. 2008) (discussing the violent racial history and symbolism of the noose with respect to African-Americans and observing that, in that case, “a jury could easily find that the noose was an egregious act of discrimination calculated to intimidate African-Americans”); Barrett, 556 F.3d at 517 (racist graffiti including a noose is “highly offensive” towards African Americans); EEOC Compliance Manual § 15-VII, 2006 WL 4673430, at text accompanying n.129 (2006) (“Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose ….”). Unsurprisingly, Rembert testified that he found the noose “physically threatening,” and that he “suffered in a state of fear for my safety.” Rembert Aff., R.61-1, PageID #2606.

Rembert faced additional threats of violence. He heard a supervisor tell three or four coworkers, “If something goes down, he tries something, we can take him.” Rembert Dep., R.49-1, PageID #614. A coworker told Rembert, “We all got ugly faces and we in it together,” thus suggesting to Rembert that the harassers were acting in tandem. Rembert Dep., R.49-1, PageID #622. And two coworkers asked him every day, “Are you having fun yet? You better pray.” Rembert Dep., R.49-1, PageID #618.

Adding to the hostility of Rembert’s work environment was Swagelok’s continued and knowing failure to stop the harassment. Rembert’s supervisor acknowledged that “No one should have to work under these conditions.” Rembert Dep., R.49-1, PageID #620. Nonetheless, he ignored Rembert’s fourteen or more complaints. Rembert Dep., R.49-1, PageID ##621, 641-642. Rather than taking action himself, or escalating the complaints to management or human resources, Kaiser advised Rembert, “Don’t pay those guys any attention.” Rembert Dep., R.49-1, PageID #620. Fully aware of what Rembert was enduring, Kaiser allowed the harassment to continue.

B. The district court underestimated the impact of racist words and actions and failed to consider the cumulative effect of the daily harassment.

The district court did not consider Rembert’s evidence sufficient to prove a hostile work environment in violation of Title VII. In so ruling, the court failed to construe the record in the light most favorable to Rembert as the non-movant, gave short shrift to the severity of the conduct at issue, and failed to consider the alleged hostile work environment in light of the totality of the circumstances. See LaPlante v. City of Battle Creek, 30 F.4th 572, 578 (6th Cir. 2022) (“At the summary judgment stage, courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.”) (internal citations and quotation marks omitted); Johnson v. Ford Motor Co., 13 F.4th at 505 (totality of circumstances).

For example, the court discounted “the frequent use of the N-word and references to ‘Black face’” on the ground that “these comments, which may have been ‘offensive utterances,’ do not rise to the level of ‘physical[ly] threatening or humiliating.” Op., R.79, PageID #2888. As this Court has recognized, the N-word, “even taken in isolation, is not a ‘mere offensive utterance.’” Johnson v. United Parcel Serv., Inc., 117 F. App’x 444, 454 (6th Cir. 2004); see supra pp. 14-16.

More fundamentally, though, the district court was wrong that harassment must be physically threatening or humiliating in order to be actionable. The Supreme Court has made it clear that, while physical threats or humiliation may be considered, neither they nor any other factor are indispensable. Harris, 510 U.S. at 23. This Court has likewise stressed, “The subjective test must not be construed as requiring that a plaintiff feel physically threatened.” Williams v. Gen. Motors Corp., 187 F.3d 553, 566 (6th Cir. 1999) (emphasis in original). In any event, even if physical threats or humiliation were prerequisites, Rembert testified that he did find “constant use of the N-word humiliating.” Rembert Aff., R.61-1, PageID #2607.

The court also faulted Rembert for “not identify[ing] any ‘death threats’ other than the incident where a coworker held up a hose pipe like a noose.”[6] Op., R.79, PageID #2888. Of course, as explained above, death threats—like any other physical threat—are not required to establish a hostile work environment. See supra pp. 12-13; Harris, 510 U.S. at 23 (“[N]o single factor is required.”). But the court also failed to recognize the impact on a Black man of being confronted with a noose. See Slayton, 206 F.3d at 678 (“To establish an objectively hostile environment, one must establish that a ‘reasonable person in the plaintiff’s position, considering all the circumstances’ would find the environment hostile.”) (quoting Oncale, 523 U.S. at 81).

The court cited Reed v. Procter & Gamble Manufacturing Co., 556 F. App’x 421, for the proposition that the noose was insufficient, either on its own or when combined with “the frequent use of the N-word and references to “Black face,” to constitute severe or pervasive harassment. Op., R.79, PageID #2888. The citation was inapt. In Reed, this Court declined to find severe harassment where the plaintiff’s team leader had fashioned a noose out of a telephone cord behind the plaintiff’s back; the plaintiff knew about the noose, but it was out of his field of vision. Id. at 432. The team leader, the Reed Court emphasized, “did not directly accost or threaten [the plaintiff].” Id. at 433.

Contrary to the reasoning of this unpublished opinion, a plaintiff who is aware of harassment “does not need to be the target of, or a witness to harassment in order for [the court] to consider that harassment in the totality of the circumstances.” Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 718 (6th Cir. 2012); see also Barrett, 556 F.3d at 515 (“We do not limit our analysis to the narrow set of incidents directed at the plaintiff or occurring in the plaintiff’s presence, but comments or conduct of which a plaintiff had no knowledge cannot be said to have made her work environment hostile.”) (citations omitted); Hawkins, 517 F.3d at 335 (“A review of … Sixth Circuit caselaw addressing other-act evidence [] makes clear that we may consider evidence of other acts of harassment of which a plaintiff becomes aware during the period [of] his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.”).

In this case, of course, Rembert was not only aware of the noose—he was actually the target. Rembert Dep., R.49-1, PageID #614; EEOC Charge, R.1-1, PageID #25. He testified that he “found the noose in particular and comment about this is what they do here physically threatening.” Rembert Aff., R.61-1, PageID #2607.

Finally, the district court dismissed the significance of Rembert’s “hurt and stress” because Rembert continued to perform his job effectively. Op., R.79, PageID #2888. This, too, was legal error. While interference with work performance may help to show a hostile work environment, it is not an indispensable element of such a claim. See Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (“[T]he district court … erred in requiring evidence that Gallagher’s work performance suffered measurably as a result of the harassment.”); Jackson, 191 F.3d at 666 (“Jackson’s failure to show that the hostile work environment she alleged psychologically affected her performance on the job was not fatal to her case.”). The Supreme Court has instructed that a plaintiff may prove a hostile work environment “even without regard to … tangible effects,” because “the 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.

A reasonable jury could look at the totality of circumstances and conclude that the harassment here was severe, pervasive, or both. The district court’s holding to the contrary was erroneous.

II. The district court correctly held that Rembert satisfied all administrative prerequisites to suit for his discriminatory termination and failure-to-hire claims.

Under Title VII, an aggrieved employee must first file a charge of discrimination with the EEOC so that the Commission may seek to resolve the matter informally or bring its own enforcement action. 42 U.S.C. § 2000e-5(f)(1).[7] Because the purpose of the charge-filing requirement is to give the EEOC the first opportunity to act, any judicial complaint is limited to the allegations contained in the administrative charge or reasonably within its scope. Younis, 610 F.3d at 361-62; Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 731-32 (6th Cir. 2006). Allegations are within the scope of a charge, and therefore properly raised in court, if they “are reasonably related to or grow out of the factual allegations in the EEOC charge.” Younis, 610 F.3d 362; see also Randolph, 453 F.3d at 732 (EEOC charges “should be liberally construed to encompass all claims ‘reasonably expected to grow out of the charge of discrimination’”) (citation omitted).

As this Court has explained, “whe[n] facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.” Younis, 610 F.3d at 362 (citation omitted). What matters is whether the EEOC reasonably could have investigated an uncharged claim, even if it did not actually do so. See Dixon v. Ashcroft, 392 F.3d 212, 219 (6th Cir. 2004) (“The Court is not prepared to penalize Dixon because the EEOC investigation should have been broader in scope.”).^{^[8]}

The district court correctly held that Rembert’s termination and failure-to-hire claims were reasonably within the scope of his EEOC charge. Op., R.79, PageID #2856. Rembert stated in his charge that he was hired as a temporary employee, signed a contract in September to become a full-time employee, and was discharged in October. EEOC Charge, R.1-1, PageID #25. He checked a box alleging race discrimination, and stated, “I believe that I have been discriminated against due to my race.” EEOC Charge, R.1-1, PageID #25. These allegations were sufficient to alert the EEOC to the possibility that race discrimination played a role in his termination and in Swagelok’s refusal to hire him for a permanent position.

Conclusion

A jury could readily find that Rembert endured severe and/or pervasive harassment on the basis of his race. For the foregoing reasons, the EEOC urges this Court to vacate the award of summary judgment and remand for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

November 10, 2022

[1] The EEOC takes no position on any other issue in this case.

[2] The EEOC presents these facts in the light most favorable to Rembert, in accordance with the standard of review for an award of summary judgment. See White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam).

[3] It does not appear from the record that the two supervisors, Francis Givens and Doug (last name unknown), directly supervised Rembert.

[5] This synopsis covers only the portions of the opinion relevant to issues the EEOC addresses in this brief.

[6] A jury could find that Rembert actually identified two death threats—he also testified about a coworker holding his fingers like a gun, pointing them at Rembert, and pulling the faux trigger. See supra p. 4.

[7] We note that, contrary to the district court’s characterization, Op., R.79, PageID #2857, the charge-filing requirement is not an administrative exhaustion requirement. Unlike other statutory schemes in which claimants must submit claims to an agency that renders a decision subject to judicial review, Title VII does not empower the EEOC to issue decisions adjudicating private-sector claims or awarding relief. Rather, private-sector claimants must file a charge in order to give the agency the right of first refusal. 42 U.S.C. § 2000e-5(f)(1); see Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019) (distinguishing EEOC from National Labor Relations Board and Merit Systems Protection Board, both of which adjudicate claims). If the EEOC dismisses the charge, or does not act on it within a specified time, the employee may file a de novo action in court. 42 U.S.C. § 2000e-5(f)(1).

[8] The district court appeared to limit this “reasonably related” rule to individuals who file EEOC charges pro se. Op., R.79, PageID #2855. In fact, the rule applies whether or not the charging party is represented by counsel. Spengler v. Worthington Cylinders, 615 F.3d 481, 490 n.4 (6th Cir. 2010).

Docket #	Description of Document	Page ID
1	Complaint	1-24
1-1	EEOC Charge	25
48	Motion for Partial Judgment on the Pleadings	588-595
49-1	Rembert Deposition	602-661
49-6	Kaiser Deposition	1005-1102
51	Motion for Summary Judgment	1411-1436
61-1	Rembert Affidavit	2606-2608
61-5	Carder Affidavit	2623-2625
63	Opposition to Motion for Partial Judgment on the Pleadings	2632-2641
65	Opposition to Motion for Summary Judgment	2684-2717
66	Reply in Support of Motion for Partial Judgment on the Pleadings	2726-2732
69	Reply in Support of Motion for Summary Judgment	2745-2767
79	Opinion and Order	2844-2890
80	Final Judgment	2891
81	Notice of Appeal	2892