EEOC & Miles v. Boeing (9th) Reply brief July 19, 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 __________________________________________________________ REPLY 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 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 I. A reasonable trier of fact could conclude from the evidence before the district court that Miles was subjected to sex harassment for which Boeing is liable.. . . . . . . . . . . . . . . . . . . . .3 A. Severe or pervasive harassment. . . . . . . . . .3 B. Harassment because of sex . . . . . . . . . . . .9 C. Employer liability. . . . . . . . . . . . . . . 12 II. A reasonable trier of fact could conclude from the evidence before the district court that Boeing is liable for the retaliatory conduct of its HR officials and Miles' coworkers. . . . . . . . 17 A. Retaliation by Mead and Clark . . . . . . . . . 19 B. Coworker retaliatory harassment . . . . . . . . 25 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Certificate of Compliance Certificate of Service Table of Authorities Cases Page(s) Burlington Indus., Inc. v. Ellerth, 532 U.S. 742 (1998) . . . . . . . . . . . . . . . . . .9, 12 Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). . . . . . 18, 20, 22, 24, 25, 26, 27 Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002). . . . . . . . . . . . . 10, 11 Doi v. Halekulani Corp., 276 F.3d 1131 (9th Cir. 2002) . . . . . . . . . . . . . . 22 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005) . . . . . . . . . . . . . . 10 Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472 (9th Cir. 1989) . . . . . . . . . . . . . . 23 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . . . 6, 9, 26 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . . . 12, 15, 16, 17 National R.R. Passenger Co. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . .6 Nichols v. Azteca Rest. Ents., Inc., 256 F.3d 864 (9th Cir. 2001). . . . . . . . . . . .6, 12, 13 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . 10, 11 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) . . . . . . 19, 22, 24, 27, 28 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . .2, 14, 21 Sandgathe v. Chater, 108 F.3d 978 (9th Cir.1995) . . . . . . . . . . . . . . . 22 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001) . . . . . . . . . . . . 12, 15 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) . . . . . . . . . . . . . . 24 Statute 42 U.S.C. § 2000e-2(a)(1) (attached to opening brief in Addendum at A-1)26 Argument In our opening brief, the Commission argued that the record contained more than enough evidence to support a reasonable factfinder's conclusions in favor of the Commission on its sex harassment and retaliation claims, making the district court's summary judgment decision erroneous as a matter of law. There was ample evidence from which a jury could find that for years charging party Kelley Miles was subjected to hostile and abusive treatment by her male coworkers because of her sex, that her coworkers' abusive treatment was sufficiently severe or pervasive to be actionable, and that Boeing was on notice of the harassment but failed to take prompt, effective remedial action. The Commission also showed there was evidence that Miles was subjected to retaliation by Boeing when she attempted to pursue her sex harassment complaints through Boeing's Human Resources (HR) department. The Commission further showed that there was evidence that Miles' coworkers responded to her complaints to Boeing HR by increasing their hostile and abusive treatment of her, that Boeing was on notice of this retaliatory harassment, and Boeing again failed to take prompt, effective remedial action. In its brief, Boeing concedes that the evidence supports the factual assertions made by the Commission but complains that the Commission's factual presentation is incomplete. In response, Boeing makes irrelevant or unsupported assertions to criticize select portions of the Commission's statement of facts, leaving the vast majority of the Commission's factual presentation effectively unchallenged. See Appellee's Brief ("AeBr") 6-12. Notwithstanding its acknowledgment that the Commission has properly stated the substantive law, see AeBr15, Boeing misstates and mischaracterizes the Commission's arguments and the evidence of record, and fails to adhere to the proper legal standards governing this appeal. As a result, Boeing commits on appeal the same error made by the district court—failing to consider whether given the totality of the circumstances a reasonable factfinder, viewing the evidence in the light most favorable to the Commission as nonmovant, making all reasonable inferences in the Commission's favor, not making credibility determinations or weighing the evidence, and disregarding all evidence favoring the movant that a jury would not be required to believe, could find in favor of the Commission. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 166, 150-51 (2000) (summary judgment standard). Rather than address this issue, Boeing elects instead merely to argue its version of the facts. Because choosing which version to believe is for the jury to decide, summary judgment was inappropriately granted. I. 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. A. Severe or pervasive harassment. The Commission presented ample evidence from which a reasonable factfinder could conclude that the hostile, abusive, and discriminatory intimidation, ridicule, and insult to which Miles was subjected by her male coworkers over a period of several years was sufficiently severe or pervasive to alter the terms and conditions of her employment and create a hostile work environment. See Appellant's Brief ("AtBr") 23-34. This included evidence that when Miles began working for Boeing in the Pre-Mod group, her male coworkers immediately began subjecting her—and only her—to hostile and abusive treatment. See AtBr4, 24. They 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." See AtBr4, 24. On nearly a daily basis from 1998 through June 2001, Cervantes subjected Miles to extensive physical and verbal harassment, telling her that she "wanted" him and "loved" him, grabbing her, hugging her, rubbing her shoulders, sticking his tongue out at her, and blowing kisses at her, once trying to force Miles to kiss him, and once picking her up and running through the workplace carrying her on his shoulder "like a bag of potatoes." See AtBr4-5, 24-25. Byrd and other male coworkers repeatedly called Miles a bitch, and otherwise subjected her to pervasive hostile verbal abuse, including shouting at her and taunting her. See AtBr6-9, 12-14. Miles' coworkers further harassed her by routinely taking and/or breaking the tools with which she worked, taking the ME Plan off of which she worked, routinely "trashing" the tool cart she used, and mixing up the special fasteners Miles used in her work. See AtBr7-8, 25. Among his many acts of harassment, Blough called Miles a bitch, referred to another female employee as a bitch while in Miles' presence, and shook the tail of a helicopter while Miles was standing on top, almost causing her to fall to the ground, and then laughed about it. See AtBr8, 12-13, 25-27. 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." See AtBr13-14, 26-27. In early 2003, after Byrd moved to a new work area, he continued to make repeated, unfounded complaints to management about Miles' work performance. See AtBr14, 27. Boeing argues that the conduct to which Miles was subjected was merely "unpleasant, rude, distasteful, and even boorish," AeBr19, and therefore should not be included within the "totality" of circumstances a court evaluates in assessing the merit of a hostile work environment claim. See AeBr16-17. Boeing is clearly wrong on this point. First, citing the Seventh Circuit's decision in Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997), Boeing argues that the work environment must be "hellish" for the harassment to be sufficiently severe or pervasive to be actionable under Title VII. AeBr18. This, of course, is not the correct standard, and, most importantly, this Court has never adopted this standard, which likely explains why Boeing failed to cite any case from this Court in support of this standard. Furthermore, Boeing's argument is nonsensical. The point of considering the totality of the circumstances is to make the determination whether the challenged conduct is "merely distasteful," or whether it is sufficiently severe to alter the terms and conditions of Miles' employment. It makes no sense to exclude evidence of the conduct which needs to be evaluated to make this assessment. If the only conduct to be considered is that which is so "egregious" as to be "hellish," there would be no need for a "totality of the circumstances" test in the first place. Thus, as this Court recognized in Vasquez v. County of Los Angeles, 307 F.3d 884, 889-94 (9th Cir. 2002), a case cited by but apparently misunderstood by Boeing, a court must look to "all the circumstances" to determine whether the environment was hostile. See AeBr16-19; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) ("[W]hether an environment is ‘hostile' or ‘abusive' can be determined only by looking at all the circumstances.") (emphasis added); Nichols v. Azteca Rest. Ents., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (same). In this case, all the circumstances clearly includes that conduct which Boeing would describe as "merely unpleasant." Indeed, one wonders why Boeing is so opposed to the Court considering all the evidence. If, as Boeing claims, the conduct is "merely distasteful," Boeing may ultimately prevail on the merits. Boeing similarly errs in arguing that harassing acts which are not independently sufficiently severe to create a hostile work environment should not be considered. See AeBr16-19. Again, the totality of the circumstances test contemplates, as the Supreme Court recognized in National Railroad Passenger Co. v. Morgan, that hostile work environment claims "are based on the cumulative effect of individual acts." 536 U.S. 101, 115 (2002). If each act had to be sufficiently severe standing alone, again, there would be no need to consider the totality of the circumstances. Boeing seeks to have other evidence presented by the Commission excluded from consideration by questioning its accuracy. For example, Boeing notes that Miles only believed that Byrd took her ME Plan, and there was no conclusive evidence which established him as the culprit. See AeBr8. This argument misses the point because it doesn't matter whether Byrd was in fact the culprit. What matters is that Miles was subjected to a barrage of hostile and abusive conduct at work, some involving verbal harassment and some involving anonymous interference with the tools and other implements of her trade, including the taking of her ME Plan. All of these acts were part of a persistent pattern of harassment perpetrated by her fellow workers. It really is immaterial whether it was Byrd or some other coworker who took her ME Plan. Boeing also claims that the record does not support the Commission's claim that Miles' male coworkers refused to accept her, that her tool cart was repeatedly trashed, and that in 2003 Byrd repeatedly complained to management about her work performance. See AeBr9-10. These contentions are without merit. First, there is extensive evidence that Miles was subjected to harassment by her male coworkers as soon as she began working in Pre-Mod in 1998—evidence from which a reasonable factfinder could easily conclude they did not welcome her presence in the workplace. See AtBr4-9. The evidence also shows that the tool cart Miles used was first "trashed" in May 2001, and, despite Miles' complaints to management about this event, on several other occasions the cart was "trashed," although to a lesser degree than the initial incident. See AtBr8; E.R.22 (Miles Dep. at 177). The record also clearly supports the Commission's contention that Byrd complained erroneously about the correctness of Miles' work on at least three separate occasions in early 2003. See E.R.107-08 (Diga Dep. Ex. 1) (Miles' statement that Byrd "has done nothing—except try to find everything wrong [with what she is] doing. . . . He started this last week Thursday, Friday, Monday, and again today. . . . [she has] had to get a hold of engineering for each occasion . . . [w]ho has backed [her] work up each time"). Boeing criticizes the Commission's reliance on this Court's decisions in Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005), and Porter v. California Dep't of Corr., 419 F.3d 885 (9th Cir. 2005), asserting that because these cases involve supervisor harassment of a subordinate employee, rather than coworker harassment, they are inapposite. See AeBr40-41. This, again, is a flawed analysis. Whether the conduct at issue is sufficiently severe or pervasive to constitute an actionable hostile work environment is determined primarily by examining what happened to the employee, i.e., the abusive conduct to which she was subjected rather than merely who did it. Whether the harasser is a supervisor or a coworker is relevant to determining employer liability for the unlawful conduct. See Harris, 510 U.S. at 21, 22 (identifying standard for determining whether hostile work environment is actionable, and making no distinction for purposes of this question between harassment by superiors or coworkers); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 764-65 (1998) (discussing different standards for employer liability). Boeing actually concedes as much, given its detailed discussion of the harassing conduct at issue in those cases. See AeBr40-41. Throughout its brief, Boeing makes the bald assertion that the Commission's position is not supported by "admissible evidence." See AeBr. at 6, 12, 13, 15, 22, 39, 40, 51. Aside from the fact that, with one exception, Boeing never identifies the evidence it claims to be inadmissible, it is just plain wrong. The Commission's argument on appeal is based on admissible evidence which was properly before the district court, and Boeing has failed to make any showing to the contrary either in the district court or on appeal. B. Harassment because of sex. The Commission presented sufficient evidence from which a jury could conclude the harassment occurred "because of" Miles' sex—that is, "the harass[ment was] motivated by general hostility to the presence of women in the workplace," Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). See AtBr31-34. The Commission presented evidence that Miles' coworkers frequently referred to her, both directly and out of her presence, by names such as "bitch" and "fucking cunt," see AtBr6, 12, 32—names which strongly suggest they harbored sex-based hostility toward her, and names from which a reasonable jury unquestionably could conclude that Miles' harassers were motivated by her sex. Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002) (jury could interpret harasser's use of the term "bitch" in reference to the plaintiff as evidence of sex-based hostility), aff'd, 539 U.S. 90 (2003); 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). Boeing mischaracterizes the Commission's argument as asserting that "mere use of the term ‘bitch' establishes gender-based animus." AeBr34. Boeing further contends that even if the namecalling can be deemed gender based, such conduct "cannot be used to attribute a gender-based motive to the other alleged conduct." AeBr39-40. In so arguing, Boeing relies on a misunderstanding of this Court's decision in Costa. Costa does not stand for the proposition that Boeing claims—that evidence of use of the term "bitch" is insufficient to support a reasonable factfinder's conclusion that the speaker was motivated in his harassment by the victim's sex. See AeBr35-36. Rather, Costa makes clear that whether the use of the epithet "bitch"—"highly charged and offensive sexual language"—is inherently offensive is not for the reviewing Court to determine on appeal, as "the jury could interpret it . . . to be one piece of evidence among many, a derogatory term indicating sex-based hostility," and such language is "simply one more factor for the jury to consider." 299 F.3d at 862. Accordingly, this Court's precedent clearly supports the Commission's argument that a reasonable factfinder could conclude from the ample evidence of Miles' coworkers repeatedly calling her and/or referring to her as "bitch" and "fucking cunt," that their harassment of her was because of her sex. In addition, the record is replete with additional evidence that the harassment was because of Miles' sex. See AtBr31-34. The evidence of Miles' coworkers' general hostility toward her presence, as a woman, in the workplace is evidence which supports an inference, on summary judgment, that Miles' coworkers harassed her because of her sex. See Oncale, 523 U.S. at 80. Boeing further asserts that "most of the evidence upon which the EEOC relies" to meet the "because of" sex element of its claim "is not actionable" because Miles never reported these incidents to Boeing. See AeBr39. Boeing confuses the standard for establishing the existence of a hostile work environment with the standard for establishing liability for that hostile work environment. See, e.g., Ellerth, 524 U.S. at 752-65. Whether the employer was on notice of the conduct simply is not relevant to the question of whether the harassment was because of sex. See, e.g., Nichols, 256 F.3d at 874-75 (recognizing distinct inquiries for "because of" sex and employer liability). C. Employer liability. As noted in the Commission's opening brief, see AtBr34-38, "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 v. GTE Serv. Corp., 360 F.3d 1103, 1119 (9th Cir. 2004). Notice of coworker harassment triggers the employer's duty to take prompt corrective action that is "reasonably calculated to end the harassment," a duty which "will not be discharged until action—prompt, effective action—has been taken," and the employer's failure to meet that obligation results in the attachment of liability. Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001). Properly examining the Commission's evidence under this standard, a reasonable factfinder could easily conclude that Boeing was on notice of the harassment of Miles such that its failure to remedy the harassment subjects Boeing to liability. The Commission presented evidence that for a number of years, Miles complained to her supervisors about coworker harassment, but her reports were met with either indifference or outright hostility. See AtBr6-11, 14, 35-38. While Miles did not specifically label her complaint as one reporting sex harassment, or in every instance report the specific details about all the harassment to which she had been subjected, she was not required to do so in order to put Boeing on notice that she was complaining of unlawful harassment. See Nichols, 256 F.3d at 873 n.6 (failure to label the complaint as one of "sexual harassment" is "irrelevant to the issue of whether he made a sexual harassment complaint"). Miles repeatedly complained to Hatter and Nunimaker about the hostile and abusive treatment she was receiving from her male coworkers, including reporting to Hatter that her coworkers thought she was a bitch, but they never responded in a manner reasonably calculated to remedy the harassment. See AtBr35-38. A reasonable factfinder could easily conclude that Miles' numerous complaints to her superiors in Boeing management put them on clear notice that she was being harassed by her coworkers. Furthermore, the evidence of Boeing's knowledge of Cervantes' persistent harassment of his female coworkers is more than sufficient to support a reasonable factfinder's conclusion that Boeing was well aware it had an active serial sexual harasser in Miles' work area. See AtBr5-6, 36. From all this evidence, a reasonable factfinder could easily conclude that Boeing knew, or in the exercise of reasonable caution should have known, that Miles was being harassed by her coworkers, triggering its remedial obligation. Boeing asserts that it adequately responded to and addressed Miles' complaints. See AeBr42; AtBr37-38. However, the record contains ample evidence that when Miles complained, Boeing did nothing to remedy the vast majority of the harassment. Hatter did nothing in response to Miles' complaints. See AtBr6. Nunimaker's response to Miles' complaints was to repeatedly "talk to the guys," to no effect, or to call Miles a troublemaker or a crybaby. See AtBr6-8. Miles also complained of the harassment to VanKeuren (who occasionally filled in as supervisor in Pre-Mod), but he only passed on to Nunimaker and Luidhardt that she was "unhappy" and took no further action. See AtBr14. Clark responded to Miles' written harassment complaint by holding a meeting and telling her and her coworkers that Boeing couldn't do anything about harassment in the workplace because "you can't change people's personalities." See AtBr11. Far from remedying the harassment, Boeing's "remedial" efforts arguably encouraged further harassment. While Boeing did ultimately terminate Cervantes some three years after he had begun harassing Miles, that effort came too late, several years after Boeing was on reasonable notice that Miles was being harassed in the workplace. Simply put, a reasonable factfinder could conclude that, had Boeing responded reasonably to Miles' numerous harassment complaints prior to May 2001, it would have discovered the full extent of the harassment to which she was being subjected, including the harassment by Cervantes. Furthermore, terminating Cervantes did not remedy the harassment by Miles' other coworkers. See McGinest, 360 F.3d at 1120 (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). Accordingly, a reasonable trier of fact could conclude that Boeing's termination of Cervantes in May 2001 did not satisfy its remedial obligation to end, and prevent, the hostile work environment to which Miles had been subjected and of which she frequently complained. Boeing's only consistent response to Miles' complaints (other than berating her) was to offer her a transfer out of Pre-Mod. Boeing criticizes the Commission for complaining that a transfer to an "objectively less desirable" position is not an adequate remedy, because the transfer would not have been to a less desirable job. See AeBr43-44. Boeing again distorts the Commission's argument. The Commission's point is not that the transfer would be to a lesser job, but that transferring Miles was inherently punitive, and not reasonably calculated to stop the harassment or to persuade potential harassers to refrain from unlawful conduct. McGinest, 360 F.3d at 1120. Transferring Miles, rather than halting the conduct to which she had been subjected, sends the message that harassment is tolerated and coworkers can rid themselves of persons they deem undesirable simply by harassing them. This Court has held under similar circumstances that adequate corrective measures entail taking steps to ensure that employees know harassment would not be tolerated. In McGinest, this Court noted that at a minimum, the employer should have informed the offended employees that the company would take steps to prevent future occurrences of the harassing behavior, and had management check to make sure the conduct did not recur. 360 F.3d at 1121 & n.14. Similar to the result in McGinest, a reasonable jury could conclude that Boeing failed to take adequate remedial steps and is therefore liable. II. A reasonable trier of fact could conclude from the evidence before the district court that Boeing is liable for the retaliatory conduct of its HR officials and Miles' coworkers. The Commission's evidence is more than sufficient to support a reasonable factfinder's conclusion that after Miles complained in writing to Boeing HR about the harassment she was suffering at the hands of her coworkers, and filed a charge with the Commission, Boeing management retaliated against Miles and her coworkers subjected her to retaliatory harassment for which Boeing is liable. See AtBr38-51. Despite Boeing's assertions to the contrary, the Commission's claims are supported by the evidence of record, this Court's precedent, and the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006). As an initial matter, we note that the Supreme Court's recent decision in White defined actionable retaliatory conduct as that which a reasonable employee would find "materially adverse"—retaliatory conduct which "well might have ‘dissuaded a reasonable worker from making or support in a charge of discrimination.'" 126 S. Ct. at 2415. This broad, objective standard meets Title VII's goal of preventing employer interference with unfettered access to Title VII's remedial mechanisms, by "prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers." Id. The Court noted that it used the term "materially adverse" to make clear that this broad standard did not extend so far as to include protection from "trivial harms," "petty slights or minor annoyances." Id. This Court's standard for actionable retaliation is consistent with White. This Court has recognized that retaliatory conduct 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). As with the White "materially adverse" standard, the Ray standard is a broad, objective standard—protecting against conduct "reasonably likely to deter employees from engaging in protected activity"—which excludes from its coverage minor conduct such as trivial harms, petty slights, and minor annoyances "because [such minor conduct] do[es] not reasonably deter employees from engaging in protected activity." Ray, 217 F.3d at 1243. Accordingly, the Supreme Court's decision in White simply reinforces the arguments, based on the law of this Court, in support of the Commission's retaliation claims. A. Retaliation by Mead and Clark. A reasonable factfinder could easily conclude that Boeing's conduct met the "materially adverse" standard when, shortly after Miles' June 6, 2001, written complaint to Boeing HR, Mead told 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." See AtBr40. Mead 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. In fact, Miles herself interpreted Mead's comments as suggesting that she withdraw her complaint. E.R.46 (Miles Dep. at 392). White instructs that whether Mead's conduct amounted to a materially adverse retaliatory action is a determination which depends, in part, on the context in which the comment was made. "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." White, 126 S. Ct. at 2415. In short, "[c]ontext matters." Id. Mead—a Boeing HR official—made his comments to Miles when she was inquiring as to why he had thus far failed to fully investigate or pursue her written harassment complaint. See AtBr10. In the same conversation Mead told Miles he did not want to hear from her about several of her harassment complaints, see AtBr10, and his response to Miles was made in a work environment where the vast majority of her prior harassment complaints to her supervisors had been met with either indifference or outright hostility, see AtBr6-8. Viewed in context, Mead's comments certainly could dissuade a reasonable worker from engaging in protected activity. See White, 126 S. Ct. at 2415. Boeing's responses to the Commission's arguments regarding Mead's comments defy logic. First, Boeing contends that Mead's "going all the way to the top now" comment simply reflected that he believed that Miles' harassment complaints were serious enough to warrant the attention of upper management, and his "create a lot of enemies" comment was "merely a statement of fact, to prepare Miles for the potential consequences of her complaint." See AeBr46-47. Boeing's argument certainly fails to view the evidence in the light most favorable to the Commission, with all justifiable inferences made in the Commission's favor. See Reeves, 530 U.S. at 150-51. Taking the evidence in context, Boeing's interpretation is not even plausible. It is preposterous to believe, as Boeing suggests, that Mead's comments were just Boeing's way of letting Miles know her complaints would be taken seriously. The most likely meaning of these statements, and certainly permissible viewing the evidence in the light most favorable to the Commission, is that Miles was being warned that she would suffer adverse consequences from having complained. Boeing asserts that there is no evidence that Mead's comments were motivated by an interest in having Miles withdraw her complaint, but this argument again reflects Boeing's basic misunderstanding of the law. The legal standard is whether a reasonable worker would likely be dissuaded from participating in protected activity, not whether the employer intended the employee to withdraw the complaint. See White, 126 S. Ct. at 2415; Ray, 217 F.3d at 1243. Boeing also argues that Miles failed to exhaust her administrative remedies regarding Mead's comments, and therefore the Commission cannot present a claim regarding Mead's comments. See AeBr46 n.10. At no time, however, did Boeing present this argument to the district court. See AeBr47 n.11 (Boeing's identifying where it addressed Mead's comments in the district court); Reply in Support of Defendant's Motion for Summary Judgment, District Court Docket No. 124, at 16 n.23 (filed Apr. 5, 2005) (mentioning Mead's comments). Accordingly, this argument is waived for purposes of appeal. See, e.g., Doi v. Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir. 2002) ("[I]t is well-established that an appellate court will not consider issues that were not properly raised in the district court."); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.1995) (refusing to address an argument not raised in the district court). Even if Boeing's argument was properly before this Court, it must fail because Mead's retaliatory conduct is clearly like or reasonably related to Miles' claim in her second charge—that her coworkers and management at Boeing were retaliating against her for the filing of her complaint. In determining whether an allegation under Title VII is like or reasonably related to the allegations presented in the charge, courts construe the charge liberally and inquire whether the additional allegations are within the scope of the investigation which can reasonably be expected to grow out of the original charge. Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir. 1989). Miles' charges specifically referred to suffering retaliation after complaining to Boeing's HR department, and identified retaliation by Clark—a member of Boeing HR. E.R.6-8. Mead's retaliatory conduct occurred close in time to Clark's, and Mead's failure to investigate several of Miles' harassment allegations is what motivated her to speak to Clark in the first place. See AtBr10-11. Accordingly, Mead's conduct clearly is within the scope of the investigation which could have reasonably been expected to grow out of Miles' charges that Boeing, including Boeing HR, was not responding to her complaints and was retaliating against her. A reasonable factfinder could also easily conclude that Boeing unlawfully retaliated against Miles when Clark stated to Miles that Boeing would not help her with her other complaints of discrimination because she had filed a charge with the Commission, and therefore the Commission was now her "advocate." See AtBr11. Boeing contends that there is no evidentiary support for the Commission's "broad-ranging" version of Clark's comments. See AeBr49. However, in making this contention, Boeing ignores the Commission's evidence that Clark told Miles that "because [she had] chosen to go outside the company and bring an outside in, that he can't help [her]," that Clark stated he "would not talk to her because [she had] chosen to make the EEOC her advocate," and that Clark repeated this assertion to Miles several times. E.R.40, 64-67 (Miles Dep. at 312-14; Miles Aff't Att. 14). Given this evidence, a reasonable jury could find in favor of the Commission's position. Boeing's contention that there is "no evidence" that Clark's comments were intended to be retaliatory, or that Miles was actually deterred from filing complaints, also misses the point. The Commission need only present evidence from which a causal link may be inferred between the protected activity and the employer's materially adverse response. White, 126 S. Ct. at 2415; Ray, 217 F.3d at 1242. This the Commission has done. The close temporal proximity of Clark's comments to Miles' filing a charge, as well as the facially retaliatory nature of the comments, easily meet the causal link requirement. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) ("[C]ausation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity."). The message clearly communicated in Clark's comments—go to the EEOC and we will not investigate or remedy your discrimination complaints—plainly satisfies the "materially adverse employment action" requirement. See White, 126 S. Ct. at 2415. A jury could easily conclude on the Commission's evidence that a reasonable worker might well be deterred from complaining about discrimination if he or she was threatened in the manner Mead and Clark threatened Miles. See id. A jury could further conclude from the evidence of retaliatory conduct by these two members of Boeing management that Boeing possesses a corporate mindset of hostility toward employees who complain of discrimination. B. Coworker retaliatory harassment. The evidence that Miles was subjected to new, and intensified, coworker harassment soon after she filed her first written complaint with Boeing, and her first charge with the Commission, was sufficient to support a retaliatory harassment claim. See AtBr10, 12-14, 43-49. This is especially so in light of the Supreme Court's decision in White, which supports the Commission's argument that the "severe or pervasive" standard does not apply to claims of retaliatory harassment. See AtBr43 n.5 As noted in our opening brief, Ray cited Harris for the "severe or pervasive" test to apply when analyzing claims of harassment. Id. Harris addressed a claim of hostile work environment harassment brought under Section 703(a)(1) of Title VII, the general substantive discrimination provision. The Court applied the "severe or pervasive" test to determine whether the challenged conduct was sufficiently egregious to be actionable under the language of that section of Title VII—whether the conduct amounted to a change in the "terms, conditions, or privileges" of employment. Harris, 510 U.S. at 21; 42 U.S.C. § 2000e-2(a)(1) (attached to opening brief in Addendum at A-1). However, the Supreme Court recognized in White that Title VII's substantive discrimination provision and its antiretaliation provision "are not coterminous," with the latter providing broader protection than the former. 126 S. Ct. at 2414. The Court unambiguously stated that "purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 2412-13. In so doing, the Court flatly refused to apply the adverse action standard for Section 703(a)(1) claims to claims of unlawful retaliation brought under Section 704(a). Id. at 2414. The "materially adverse" standard from White is an objective standard, applied in light of the particular circumstances in which the offending conduct was perpetrated. Id. at 2415. Applying the "severe or pervasive" test—which determines whether the challenged conduct violates Section 703(a)(1), not Section 704(a)—in the retaliation context imposes a more restrictive standard for actionable conduct than is required by White, and is contrary to the reasoning of White. Boeing argues that the Commission's evidence of Miles' ostracism cannot be considered as contributing to the hostile work environment, because coworker ostracism is not actionable, and because there is no evidence that the ostracism of Miles was based upon a retaliatory motive. See AeBr55-57, 57 n.14. Neither of these argument has any merit. First, this Court has recognized that coworker ostracism, as part of a larger constellation of harassing conduct, can support a retaliatory hostile work environment claim. Ray, 217 F.3d at 1245-46. See also AtBr46. Boeing has presented no authority to the contrary, other than a narrow, incorrect interpretation of Ray as standing for the absurd proposition that coworker mistreatment of an employee is only actionable if the mistreatment is orchestrated by management—a proposition at odds with Title VII and completely without support in this, or any, Court's precedent. In addition, there is ample evidence from which a reasonable factfinder could conclude that Miles' coworkers ostracized her because of her complaints about harassment. See AtBr46-47. The ostracism began, and the other harassment escalated, almost immediately after her coworkers discovered that Miles had complained to Boeing HR. See Ray, 217 F.3d at 1244 (retaliatory motive may be inferred from temporal proximity between protected activity and allegedly retaliatory conduct). Given Boeing's assertion that Mead's comments were intended to "prepare Miles for the potential consequences of her complaint," Boeing apparently anticipated that Miles would be retaliated against. AeBr47. Boeing proved quite prophetic. After Miles complained, Bonomo told her the "war is on now," Byrd refused to speak with her because "she had gotten other people fired," and a number of Miles' coworkers' attitude toward her changed for the worse. See AtBr46-49. This evidence is sufficient to support a reasonable factfinder's conclusion that a retaliatory motive was behind the ostracism. Conclusion For the foregoing reasons, and those presented in our opening brief, 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 Reply 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 6,483 words, from the Argument 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 CERTIFICATE OF SERVICE I hereby certify that one original and fifteen copies of the foregoing Reply Brief of Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission were sent this 17th day of July, 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, California, 94103. I further certify that two copies of the foregoing Reply Brief of Plaintiff- Appellant the U.S. Equal Employment Opportunity Commission were sent this 17th day of July 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 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 __________________________________________________________ NOTICE OF ERRATA __________________________________________________________ The undersigned counsel for Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission ("Commission") hereby provides the Court of notice of a citation error contained in the Commission's Reply Brief, filed on July 17, 2006. At the bottom of page 5 of the Reply Brief, the undersigned mistakenly included an incorrect citation for this Court's decision in Vasquez v. County of Los Angeles. The proper citation—349 F.3d 634 (9th Cir. 2003)—was mistakenly omitted from the Reply Brief, which instead contained citation to this Court's prior, superceded decision in that case. Attached for the Court's convenience is a copy of page 5 of the Commission's Reply Brief, with the correct Vasquez citation provided therein. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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 "unpleasant, rude, distasteful, and even boorish," AeBr19, and therefore should not be included within the "totality" of circumstances a court evaluates in assessing the merit of a hostile work environment claim. See AeBr16-17. Boeing is clearly wrong on this point. First, citing the Seventh Circuit's decision in Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997), Boeing argues that the work environment must be "hellish" for the harassment to be sufficiently severe or pervasive to be actionable under Title VII. AeBr18. This, of course, is not the correct standard, and, most importantly, this Court has never adopted this standard, which likely explains why Boeing failed to cite any case from this Court in support of this standard. Furthermore, Boeing's argument is nonsensical. The point of considering the totality of the circumstances is to make the determination whether the challenged conduct is "merely distasteful," or whether it is sufficiently severe to alter the terms and conditions of Miles' employment. It makes no sense to exclude evidence of the conduct which needs to be evaluated to make this assessment. If the only conduct to be considered is that which is so "egregious" as to be "hellish," there would be no need for a "totality of the circumstances" test in the first place. Thus, as this Court recognized in Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), a case cited by but apparently CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Notice of Errata of Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission was sent this 19th day of July, 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