IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _______________________________________________________ No. 06-3927 _______________________________________________________ ELIZABETH BRIGHT Plaintiff-Appellant, v. COLGATE-PALMOLIVE and HILL'S PET NUTRITION, INC., Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, Honorable David F. Hamilton, Presiding 03-cv-1709 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF- APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 (P) (202) 663-4724 (F) (202) 663-7090 annenoel.occhialino@eeoc.gov TABLE OF CONTENTS STATEMENT OF INTEREST ............................................................ 1 ISSUES PRESENTED.................................................................. 1 STATEMENT OF THE CASE ............................................................ 2 1. Course of Proceedings ..................................................2 2. Statement of the Facts ............................................... 3 3. District Court Proceedings.......................................... 13 ARGUMENT ........................................................................ 15 I. Because Bright's harassment in Processing and Stretchwrap during her nearly three years of employment constituted a single hostile work environment for timeliness purposes, the court erred in prohibiting the jury from considering events that occurred before March 29, 2002, and in Processing. ................................................................... 16 II. The court erred in prohibiting the jury from considering the evidence of pornography. ................................................................... 24 CONCLUSION ...................................................................... 30 CERTIFICATE OF COMPLIANCE CERTICIATE OF SERVICE TABLE OF AUTHORITIES Cases Brandewie v. State of Del. Dep't of Corrections, No. 05-625, 2006 WL 3623817 (D.Del. Dec. 11, 2006) . . . . . . . . . . . . 28 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . 30 Humphrey v. Staszak, 148 F.3d 719 (7th Cir. 1998). . . . . . . . . 17 Isaacs v. Hill's Pet Nutrition, 485 F.3d 383 (7th Cir. 2007). . . . . . . . . . . . . . . 16, 18, 19, 23, 24 Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57 (1986). . . . . . 25 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . . . . . . . . . . . . passim Phelan v. Cook County, 463 F.3d 773 (7th Cir. 2006) . 25, 26, 27, 28, 29 Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003). . . . . 24 Wheaton v. N. Oakland Med. Ctr., 130 Fed.Appx. 773 (6th Cir. May 10, 2005). . . . . . . . . . . 25 Statutes 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Federal Rules Fed. R. App. P. 29. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission was established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises the issue of what kind of evidence is needed to establish the existence of a single hostile work environment for timeliness purposes and whether harassment that occurs in different areas of an employer's workplace can be part of a single hostile work environment under Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Additionally, this appeal raises the question of whether an employer's purported remediation of one aspect of a hostile work environment means that a jury cannot rely on that aspect in determining whether the harassment was actionable. Because this Court's resolution of this appeal will affect the scope of Title VII harassment claims, the Commission offers its views to the Court. See Fed. R. App. P. 29(a). ISSUES PRESENTED 1. Whether the district court erred in instructing the jury that conduct that occurred more than 300 days before the plaintiff filed her charge and before her transfer to a different area of the workplace was untimely and irrelevant and could not be considered in evaluating her hostile work environment claim. 2. Whether the district court erred in prohibiting the jury from considering workplace pornography as part of the plaintiff's hostile work environment claim because, in its view, the employer had promptly and effectively remedied the pornography when it learned of it and because the employer lacked notice of any lingering pornography, which was neither severe nor pervasive. STATEMENT OF THE CASE 1. Course of Proceedings On November 18, 2003, the plaintiff filed a complaint alleging, inter alia, that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq., by subjecting her to a sexually hostile work environment. R.1.<1> Consistent with its earlier summary judgment ruling and the jury's verdict, on September 29, 2006, the court entered final judgment in favor of the defendants. A-88.<2> The plaintiff filed a timely notice of appeal. R.148. 2. Statement of Facts<3> Elizabeth Bright began working at Hill's Pet Nutrition, Inc. ("Hill's") on February 28, 2000.<4> Tr.34. Hill's makes specialty dog and cat food. Tr.739. Production at the plant moves through four areas: "Bulk," "Processing," "Packaging," and "Stretchwrap." Tr.927-28. Employees are called "technicians," work in teams, and use individual radios to communicate. Tr.327,459. When Bright started work, there was an "X team," a "Y team," and "Z team." A- 84(Tr.924). Teams worked the same shift, although they were broken down into different areas of the plant, such as a "Y team Processing" and a "Y team Stretchwrap." Id. Technicians had some interaction with other workers to address issues or problems or to change shifts. Tr.925-26. Each team had a "team leader" who had some supervisory authority but lacked hiring or firing authority. A-84(Tr.924), Tr.887, 889, 917. Team leaders were ordinarily supposed to report harassment complaints to Jackie Vanderpool, the Human Resources Manager, who was in charge of enforcing Hill's anti- discrimination policy. Tr.740, 742, 823-24. In February of 2002, Hill's moved to an "area leader" concept in which leaders were responsible for all teams in a single area of the plant. Tr.888-89. Area leaders reported to the operations manager, who reported to the plant manager. A-84(Tr.923). Vanderpool also reported to the plant manager. Tr.740 Dale Dangerfield, who reported to Vanderpool, interviewed Bright for the job. Tr.35, 822. Dangerfield told Bright, "they were going to like [her] out there on the floor." Tr.35. When Bright did not respond, Dangerfield said, "don't get me wrong, you're not going to get grabbed or raped . . . but they're really going to love you out there." Id. Dangerfield also conducted Bright's orientation. Tr.37. Whenever he needed an example of how to do something, "he always used one of his ex-wives for that in a very mean way." Tr.37-38. He "always complain[ed] about" his ex-wives "taking his money, how there should be other ways to have a woman stay with you without having to marry them." Tr.38. Dangerfield also asked Bright about Carol Isaacs, her friend who worked at Hill's. Id. He inquired about the number of times Isaacs had been married, how many children she had, if her children were her husband's, and if her children had been convicted of crimes. Id. Incidents in Processing Bright was assigned to Y team Processing. Tr.39. Doug Cox was her mentor, and Terry Abner was her acting team leader. Tr.39. When Abner introduced Bright and another new woman to the team, Steve Buckland said, "Oh, great, two more fucking women." Tr.39-40. Abner did not say a word. Tr.40. Beginning a week or two later, Buckland "on a daily basis would cuss either at [Bright] or in front of [her] to someone else." Tr.44. Bright could only "remember 2 or 3 days while [she] was working in Processing where [Buckland] didn't actually cuss to [her], right to [her]." Id. He "would call [her] a worthless idiot, a fucking bitch, worthless fucking slut, women, all women are a thorn in his side" and "things like that. Everyday. Every single day . . . ." Id. See also Tr.459 (Isaacs) (Bright complained about Buckland "cussing her out on the radio"). Bright and her female co-worker spent their time cleaning the machines while the men did the easier work of preventative maintenance. Tr.40, 44. When the product became a mess on the floor, they told Bright "it was a woman's job to get out there and clean that damn mess up." Tr.63. Cox watched pornography at work. He would "sit[] there at work . . . looking at - he was particularly fond of obese women" and would "watch pornography, extremely large naked women" who "would be sucking their own breasts." Tr.40. "Anytime" Bright approached Cox to ask him a question, "that's what [she] was faced with. He didn't have time to train [her]." Tr.40-41. Bright saw other pornography at work. Tr.41. "There was be[]stiality . . . it was a mule or a donkey and some lady," "an Asian lady who was appearing to be performing oral sex," and "some cartoon clips." Id. One technician had so many cartoon clips on his hard drive - "like 14 pages" - that "it would take him awhile to flip over and find the exact one that he particularly would want to show somebody." Id. Bright saw Abner, Doug Dils (who became Bright's Processing team leader), Everett Jenkins (who later became Bright's Stretchwrap area leader), and "many technicians" came to the area to view pornography. Tr.63, 887. The pornography was on the computers in every department Bright ever worked in. Tr.89. From February of 2000 through December of 2000, one of Bright's co- workers, Sandra Pflum, heard daily comments on the radio that Bright was also in a position to hear or hear about. Tr.653. Men talked about "their wood, that sausage," and used "the 'F' word . . . quite a bit." Id. Occasionally, they called "a female a bitch or along those lines." Id. Pflum complained to Abner and Vanderpool. Tr.653-54, 740. In April of 2000, Bright complained to Isaacs about Buckland's cursing at her over the radio and about an incident in which Cox instructed Bright about how to clean a bin but failed to tell her there was a running auger in it, which was dangerous. Tr.44, 458-60. Bright was later called into a meeting with Dangerfield, Abner, Isaacs, and Isaacs's team leader. Tr.45. Bright and Isaacs were told that they were "spreading rumors about Steve Buckland." Tr.45. Because Buckland had been in trouble before for cursing, Abner and Dangerfield did not say that they disbelieved the women. Tr.45-46. They nevertheless accused Bright and Isaacs of "harassing them" by complaining about Buckland and warned that if they said anything else about it, "they would bring a whole roomful of lawyers in on [them]." Tr.46, 53; see also Tr.462-63 (Isaacs) (Abner threatened to bring in lawyers and fire them). Dangerfield also prohibited the women from talking to each other - not just at work, but "at all anymore ever." Tr.46. The women - but not Buckland - were also warned that they would "each receive a note to file." Tr.50-51. Bright was intimidated and cried. Tr.53. Nothing was done about Buckland's cursing at Bright, the lack of training, or Bright being put in a dangerous position. Tr.53-54, 89. In fact, not only did Cox fail to train her after she complained, but he actually would disappear when Bright asked for assistance. Tr.62-63. None of the team leaders passed on Bright's complaints to Vanderpool, the HR manager, even though they should have. Tr.740, 823-24. Buckland told everyone that Bright had complained. Tr.57. In front of others, he "threw a clipboard at [her] and it hit the windows behind [her] head" and said, "'She's going to fucking tell.'" Tr.59-60. His comment made Bright "fear for [her] life." Id.; Tr.427 (stating that she was "in fear of my life" at Hill's). Her teammates began teasing her and, when some of the hot product got stuck in a pipe, told her to get a wrench and "break that line and unclog it," which Bright could not do and was against standard operating procedures. Tr.60. Afterward, Bright took some stress leave. Tr.60. Nothing changed when Bright returned to work, and she complained again to her new team leader, Doug Dils, about the cursing, pornography, lack of training, being limited to cleaning and put in dangerous situations, Abner and Dangerfield's threats, and about other unrelated matters. Tr.61, 67, 281-82. Bright did not expect Dils to do anything about the pornography because "he was one of the ones who would come in there to look at it." Tr.67. In response to Bright's complaints, Dils offered to transfer her to Stretchwrap, which was, according to Bright, "one of the least desirable areas in the plant." Tr.68, 286, 1042. The transfer occurred either at the end of 2000 or the beginning of 2001. Tr.1056. Both Isaacs and Antoinette Brown, who worked in Packaging, also complained to management about the vulgar language but nothing was done. Tr.474, 627. In October of 2001, Hill's involuntarily transferred Isaacs and Brown to Stretchwrap. Tr.474, 546-47, 627-29. Incidents in Stretchwrap Bright did not receive any training when she moved to Y team Stretchwrap, although the men did, and she was not assigned a mentor. Tr.68-69, 89-90. On April 22, 2001, Hill's added a "W" team, and Bright volunteered to be on it. Tr.279-80. She was then finally assigned a mentor, Mark Toney. Tr.69-70. Although he was friends with Buckland, Toney was initially helpful in training Bright. Tr.70, 1056. She did not receive any additional training beyond what Toney gave her, even though other males were trained in preventative maintenance, computers, "one stop" (pulling from the warehouse and loading trucks to fill orders), and "bag desk" (ensuring that packaging lines do not run out of their packaging materials). Tr.89-90, 1040-41, 630 (Brown). The women did the cleaning in Stretchwrap. Tr.1028-29 (Isaacs); Tr.1040 (Bright). Bill Pebworth (who worked on X team Stretchwrap) said that "women should stay up at the line and the man should stay in the back and do one stop." Tr.631 (Brown). Ray Witt, who also joined W team Stretchwrap, harassed Bright by making comments about her gender "at times"; he called her a "bitch" and a "lesbian" and called other women "bitch." Tr.890, 312-23. A male co-worker, Dewey Lakes, complained to Vanderpool, Dangerfield, and his team leader about Bright's treatment and "some name calling," including Bright's being called a "crazy fucking bitch," and was told by Vanderpool several times that a "hostile work environment was a productive work environment." Tr.671, 675-77, 684. Although Isaacs and Bright worked on different teams, they overlapped when Isaacs worked overtime or swapped her shift. Tr.515. Isaacs saw Witt "yelling at" Bright and "talking on the radio about things that were harassing to her." Tr.517; see also Tr.647 (Zurwell) (testifying that Witt made comments on the radio about going hunting, which she thought were directed at Bright because she was an animal activist). Isaacs further testified that during 2002 Pebworth and Witt called Bright "a bitch, a stupid bitch, [and] a dumb bitch" and that other women were called "cunt," "slut," and "bitch," although it is unclear if Bright was there at the time. Tr.518-19; see also Tr.606-07 (Zurwell) (testifying that on a daily basis she heard Pebworth refer to Bright as a "bitch, slut, cunt"); Tr.630-31, (Brown) (testifying that Pebworth made vulgar statements such as "fucking bitch, whore, slut, fat ass, cunt" on a daily basis, especially when referring to Isaacs); Tr.632 (Brown) (testifying that Tom Kitchell referred to Isaacs "as bitch and whore, fucking stupid" "every day," and that other male technicians made similar comments). Isaacs complained to multiple management people, including Vanderpool, about the name-calling. Tr.520. In January of 2002, Isaacs called the Colgate hotline to complain about the pornography. Tr.479. Vanderpool admitted that in January of 2002 she was "made . . . aware that there was some inappropriate material being shared via E- mail." A-76(Tr.861). She issued reissued Hill's guidelines on e-mail use with a cover letter reminding team members that transmitting obscene e-mail was prohibited, but nothing else was done. Id.; A-80(memo); Tr.481-82. Bright called the Colgate hotline in either February or March of 2002 and complained about being put "in dangerous situations when [she] worked in Processing," "being harassed daily by Steve Buckland and others," the pornography, being "in fear for her life," and other matters. Tr.87-88, 345-46. Bright sent a follow-up letter, although she did not mention the pornography. Tr.88, 345. No company official ever interviewed Bright or Isaacs about the pornography. Tr.90, 482-83. In March of 2002, eleven male employees were suspended, including Bright's area leader, Everett Jenkins. Tr.91, 483, 887-88. Catherine Zaleha, the plant manager, sent out an e-mail instructing employees to delete "inappropriate material" on computers. Tr.983, 91. Even after the March of 2002 suspensions, Bright saw pornography on Pebworth's computer. Tr.92, 364-65. Pebworth pleaded with Bright not to tell and asked her to give him a hug, which she refused. Tr.92-93; see also Tr.517-18 (Isaacs) (Pebworth tried to hug Bright and "begg[ed] her not to call corporate"). Other women also saw pornography after the suspensions. Tr.479, 484 (Isaacs); Tr.625-26 (Brown) (saw "naked women, wom[e]n with horses, wom[e]n in bikinis, just mostly women in sexual positions"). Shortly after the suspensions, Pebworth told everyone that Bright had sent a fax to Colgate about the pornography and employee threats to pets. Tr.92, 485; see A-55. Bright denied it. Tr.92. She asked him to stop telling people that "because it was going to get me killed" because "some of those men had been suspended at work for having pornography" and "had to go home to their wives, explain why they were sent home for two weeks." Tr.93 (Bright); see also Tr.485 (Isaacs) (testifying that she observed incident). In April of 2002, there was a product slow down in Processing, which meant a delay in the product reaching Stretchwrap. Tr.94. Toney approached Bright and asked if she wanted to go for a smoking break. Tr.94, 96. Because Hill's prohibited smoking on the premises, they drove to a place down the street where employees normally went to smoke. Id. After ten or fifteen minutes, Bright suggested returning to the plant, but Toney assured her that the delay would be at least an hour. Tr.94. Toney complained about his wife not wanting to have sex anymore. Id. Then, "out of the blue," he "grabbed [Bright], put his hand right up [her] shirt, grabbed ahold of [her] breast, and then he laid himself on top of [her]." Tr.95. "[H]e was kissing [her] while he was doing this." Id. She had to "throw him off of [her]." After she rejected him, Toney refused to train Bright. Tr.1058. On April 24, 2002, Zaleha met with Bright about her hotline complaint. Tr.81. Even though Bright told Zaleha about Toney groping her and kissing her, Zaleha refused to talk about anything except what Bright had included in her hotline complaint. Tr.96. Zaleha sent Bright home "for [her] own protection." Tr.98. Bright was off for several weeks. When Isaacs took some leave in October of 2002, Bright heard several people talk about finding a reason to fire her. Tr.112. Pebworth called Isaacs "a fat, lazy, red-headed, sle[a]zy bitch" and "called her a cunt a couple of times." Id. He used "terrible, vulgar names." Tr.113. Other male employees also called Isaacs vulgar names and made fun of her. Tr.113. Bright's employment ended on November 11, 2002. She filed suit alleging a variety of claims, including a Title VII sexual harassment claim. 3. District Court Proceedings Although the court had previously ruled that conduct that occurred more than 300 days before Bright filed her charge was not time-barred, A-16, p.17 & R.122, p.3, the court changed its mind during trial. Due to "Bright's very limited knowledge about people in other parts of the plant," the court said, "it seems to me very difficult . . . to say that this was all just one environment." A-62(Tr.444). Therefore, the court concluded, "the jury is ultimately going to have to be instructed that only things after late March 2002 [approximately 300 days before Bright filed her charge] can, actually, be actionable." Tr.445. Accordingly, the court repeatedly limited testimony and evidence about events that occurred more than 300 days before Bright filed her charge. See, e.g., Tr.457 (cutting off Isaacs's testimony about earlier events); Tr.652 (cutting off Zurwell's testimony about pornography in 2000); Tr.469 (limiting questions about events in 2000). Over Bright's objections, the court instructed the jury during the trial that conduct occurring before March 29, 2002, "cannot form the basis of your decision as to whether Ms. Bright . . . experienced a hostile environment." A-73-74(Tr.851, 855). At the close of Bright's case, Hill's made a Rule 50 motion for judgment as a matter of law. The court denied the motion but ruled that the "presence of pornography on company computers at Hill's plant does not show any contribution towards a hostile work environment during the relevant time period, which is beginning in late March 2002." A-68(Tr.737). The court reasoned that Hill's had cleaned up the pornography and suspended eleven employees and that there was "at best" possible evidence of "minimal sporadic violations of the company directive on this score" after the cleanup but nothing "severe or pervasive." A- 68(Tr.737-38). Over Bright's objections, the court told the jury, "Ms. Bright may not base her claims on the presence of objectionable computer files" because Hill's remedied it as soon as it found out about it on March 29, 2002, and had no notice of any subsequent pornography. A-74(Tr.853, 856). At the end of the trial, the court told the jury "that there are three limitations on the events [it could] consider in deciding Ms. Bright's claim of sexual harassment." A-86(Tr.1082); R.137(Jury Instruction 13). First, Bright's claim was "subject to a time limit . . . which extends back to March 29, 2002," but - in contradiction of that instruction, its earlier instruction during the trial, and its repeated limitation of the evidence - the court said that earlier events could be considered if "part of the same hostile work environment that includes an event occurring after March 29, 2002." Id. Second, the court said that Hill's "had different physical areas in which employees worked" and events that occurred in Processing were irrelevant. Id. Third, the pornography was irrelevant because Hill's had removed it and suspended several employees. A-86(Tr.1083); R.137(Final Jury Instruction 13). The jury returned a verdict in favor of Hill's on all claims. ARGUMENT Bright offered evidence at trial that she suffered from a hostile work environment throughout her entire employment while working in both Processing and Stretchwrap. The district court improperly disaggregated her claim by instructing the jury that harassment that occurred more than 300 days before Bright filed her charge was time-barred and that harassment that occurred in Processing was irrelevant. The court further disaggregated Bright's claim by prohibiting the jury from considering evidence of widespread pornography at the plant. The court's erroneous instructions contravene Supreme Court law and this Court's recent holding in Isaacs v. Hill's Pet Nutrition, 485 F.3d 383 (7th Cir. May 4, 2007), that the strikingly similar harassment that Bright's co-worker, Carol Isaacs, was subjected to constituted a single hostile work environment. Accordingly, this Court should remand this case for a new trial on Bright's sexual harassment claim. I. Because Bright's harassment in Processing and Stretchwrap during her nearly three years of employment constituted a single hostile work environment for timeliness purposes, the court erred in prohibiting the jury from considering events that occurred before March 29, 2002, and in Processing. Bright offered evidence of harassing conduct from her first day on the job in February of 2000 in Processing through the end of her employment in November of 2002 in Stretchwrap. The district court nevertheless instructed the jury that conduct that occurred before March 29, 2002, was untimely and that events that occurred in Processing were irrelevant. A-74(Tr.855); A-86(Tr.1082-83); R.137(Final Jury Instruction 13); see also Tr.522, 625 (limiting testimony to events after March 29, 2002, in Stretchwrap).<5> The court reasoned that acts before March 29, 2002, were irrelevant because of "Bright's very limited knowledge about people in other parts of the plant"<6> and suggested that events in Processing should be excluded because Processing was a "different physical area[]" than Stretchwrap. A-86(Tr.1082); R.137(Final Jury Instruction 13). Because this is not the standard for determining the existence of a single hostile work environment and because the jury should have been able to consider earlier events and those that occurred in Processing, this Court should reverse. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court explained that hostile work environment claims are "based on the cumulative effect of individual acts" and collectively "constitute one 'unlawful employment practice.'" Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)). Because Title VII requires only that a charge be filed within either 180 or 300 days of an unlawful practice, "[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period." Id. Such acts may be considered when determining liability so long as "an act contributing to the claim occurs within the filing period." Id. The Court indicated that acts are part of the same hostile work environment unless 1) the acts that occurred within the filing period have "no relation to the acts" outside of the filing period; or 2) "for some other reason, such as certain intervening action by the employer," the prior acts are no longer a part of the "same hostile environment." Id. at 118. Significantly, nothing in Morgan suggests, as the district court seemed to believe, that harassment that occurs in different physical areas of an employer's workplace cannot be part of a single environment. And, in fact, this Court held to the contrary in Isaacs v. Hill's Pet Nutrition, 485 F.3d 383, which is essentially a companion case to this appeal. In Isaacs, Carol Isaacs (Bright's co-worker) sued Hill's for sexual harassment she experienced in Packaging and after her transfer to Stretchwrap. The district court held that the harassment in Packaging and Stretchwrap constituted two practices and that only the harassment in Stretchwrap was timely. Id. at 385. Concluding that the Stretchwrap harassment was not actionable, the court entered summary judgment for Hill's. Id. This Court reversed, citing Morgan and holding that "events during [Isaacs's] entire employment with Hill's," which included events that occurred more than 300 days before she filed her charge, "should have been considered." Id. at 386. This Court criticized the district court's reasoning that the Packaging and Stretchwrap harassment were unrelated because each involved different harassers: "[W]hy should this matter? Isaacs has not sued her co-workers; the entity responsible for complying with Title VII is the employer, of which Isaacs had just one." Id. This Court noted that Isaacs's multiple complaints had been ignored and stated, "[a]s long as the employee remains within a single chain of command . . . and the same people control how the employer addresses problems in the workplace, there is only one employment practice." Id. Therefore, Isaacs was "entitled to present for consideration her treatment throughout her employment." Id. Morgan and Isaacs control this case and compel the conclusion that the district court erred by prohibiting the jury from considering acts that occurred before March 29, 2002, and in Processing. Bright presented an abundance of evidence showing that the harassment was of the same nature and frequency, she remained "within a single chain of command," and the "same people control[led] how [Hill's] addresse[d] problems in the workplace" in both Processing and Stretchwrap. Id.; see also Morgan, 536 U.S. at 120 (affirming lower court's holding that the plaintiff's "'pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers'" and were therefore part of the same environment) (citation omitted). Specifically, Bright offered evidence that she was subjected to sexually derogatory comments directed at her or made in her presence throughout her entire employment. Dangerfield made derogatory comments beginning in February of 2000 during her interview and orientation. See supra, at 4. When Bright started working in Processing, Buckland greeted her with, "great, two more fucking women" and cursed at her or in front of her "on a daily basis," calling her "a worthless idiot, a fucking bitch, worthless fucking slut" and "things like that" "[e]very single day." Id. at 5. Sandra Pflum testified that during 2000 Bright was in a position to hear comments on the radio by male employees about their penises and their occasional use of the word "bitch." Id. at 6. Although Bright transferred to Stretchwrap in late 2001 or early 2002, the sexual remarks continued. Id. at 9-13. "At times" Ray Witt made comments about Bright's gender, calling her and other women "bitch" and calling Bright a "lesbian." Id. at 9. Isaacs also observed Witt "yelling at" Bright and "talking on the radio about things that were harassing to her," and Zurwell heard Witt make harassing comments on the radio that were directed at Bright. Id. at 10. As late as October 2002, Bright had to listen to Pebworth call Isaacs a "fat, lazy, red-headed, sle[a]zy bitch" and a "cunt," and to other male employees calling Isaacs vulgar names and making fun of her. Id. at 13. Similarly, Bright offered evidence that pornography was a permanent feature of the workplace in both Processing and Stretchwrap throughout her entire employment. While working in Processing Bright observed many male employees viewing graphic pornography on the company's computers, including co-workers, her mentor (Cox), her team leader (Abner), and the men who became her team and area leaders in both Processing and Stretchwrap (Dils and Jenkins). See supra, at 5-6, 11. Bright further testified that the pornography was in every department she had ever worked in at the plant, and she, Isaacs, and Brown testified that they saw pornography even after March 2002. Id. Additionally, Bright testified that she was denied training while in Processing and in Stretchwrap and that Toney's training ceased after she spurned his sexual advances in April 2002. Id. at 6, 9, 12. Bright and other witnesses also testified that in both Processing and Stretchwrap she and other women were relegated to cleaning while the men did preventative maintenance. Id. at 5, 9. Bright further testified that she was constantly concerned about her physical safety, including when Buckland threw a clipboard at her (hitting the window behind her head), Cox failed to warn her about a running auger while she cleaned a bin, and Pebworth spread a rumor that she had complained to Colgate about pornography and employees making threats. Id. at 6-8, 12. Bright also offered evidence that her complaints about the harassment fell on deaf ears in both Processing and Stretchwrap. See Isaacs, 485 F.3d at 386 (relying in part on Hill's failure to address Isaacs's repeated complaints in concluding that she suffered from a single hostile work environment and stating, "Doing nothing after receiving multiple complaints about serious conditions is a straight road to liability under Title VII."). While working in Processing, Bright complained about Buckland's cursing and being put in a dangerous situation, but nothing was done to address her complaints; to the contrary, Abner and Dangerfield threatened to fire her. See supra, at 7. Bright complained to Dils, her new team leader, about the cursing, pornography, and being put in a dangerous situation, but he did nothing except transfer her to Stretchwrap, where the harassment continued. Id. at 8-13. In early 2002, Bright complained on the Colgate hotline about being put in a dangerous situation, being harassed by Buckland and others, the pornography, and being afraid for her safety, but Hill's did nothing except to suspend some employees for viewing pornography. Id. at 11. Worse yet, when Zaleha met with Bright on April 24, 2002, to discuss Bright's hotline complaint, Zaleha refused to talk about Bright's most serious allegation of harassment - Toney's recent sexual assault. Id. at 13. Similarly, Hill's did nothing about the multiple complaints Lakes, Brown, Isaacs, and Pflum made about the harassment; Lakes was simply told that "a hostile work environment was a productive work environment." Tr.684. Additionally, Bright offered evidence that she "remain[ed] within a single chain of command" and that "the same people control[led] how the employer addresses problems in the workplace" in both Processing and Stretchwrap, which establishes that there was "only one employment practice." Isaacs, 485 F.3d at 386. Specifically, although Bright had different team and area leaders, Jackie Vanderpool remained the HR manager throughout Bright's employment and the one responsible for enforcing Hill's anti-discrimination policy throughout the plant. See supra, at 3-4; Tr.740; see also A-80 (Vanderpool's 1/22/02 memo to "All Richmond Team Members" concerning inappropriate e-mail). Vanderpool, in turn, reported to the plant manager, whose responsibility for conditions throughout the plant is evidenced by Zaleha's e-mail to "All Richmond Team Members" to delete inappropriate e-mail. R.139, Ex.27. Thus, Bright offered substantial evidence showing that the nature and frequency of the harassment remained consistent throughout her employment and that the same members of Hill's management were responsible for addressing her complaints about it but failed to do so. Therefore, the court erred by prohibiting the jury from considering Bright's treatment before March 29, 2002, and in Processing. See Morgan, 536 U.S. at 117-18 (affirming lower court holding that there was a single hostile work environment where the harassment involved the same type of conduct, occurred relatively frequently, and involved the same managers); Isaacs, 485 F.3d 383 (concluding that pre- and post-limitations period harassment that occurred in Packaging and Stretchwrap constituted a single hostile work environment); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003) (holding that the plaintiff's allegations of sexual propositions, sexual innuendos, cursing, unwanted touching, exposure to pornography, and other conduct perpetrated by six different co-workers and customers over three years constituted a single environment). II. The court erred in prohibiting the jury from considering the evidence of pornography. Bright offered detailed testimony at trial about the prevalence and nature of the computer pornography at Hill's throughout her employment. Nevertheless, the court prohibited the jury from considering it because "Hill's took appropriate actions to remove any objectionable computer files when put on notice of their presence, and [because] the evidence does not support that Hill's had knowledge of any objectionable files remaining on plant computers after March 29, 2002." A- 74(Tr.856); see also R.137 (Jury Instruction 13) (pornography was irrelevant because it was "removed by management in March 2002" and because employees were suspended). The court also based its reasoning on its view that there was, "at best," evidence of "minimal sporadic violations of the company directive" against inappropriate material after the suspensions but "no evidence of anything severe or pervasive." A-68(Tr.738). As both a legal and a factual matter, the court's reasoning and instruction to the jury were erroneous. As a legal matter, whether an employer promptly and effectively remediated harassment goes to the employer's liability, not to the question of whether the employer discriminated against the plaintiff by subjecting her to harassment that was actionable. Compare Phelan v. Cook County, 463 F.3d 773, 784 (7th Cir. 2006) (liability standard for co-worker harassment is whether the employer was negligent in discovering or remedying harassment) with Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) ("[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment."). Thus, even if Hill's had actually remedied the pornography as soon as it learned about it, the court erred in forbidding the jury from considering the pornography in determining whether the harassment was actionable. Wheaton v. N. Oakland Med. Ctr., 130 Fed. Appx. 773, 786-88 (6th Cir. May 10, 2005) (unpublished) (rejecting the employer's argument that evidence about threatening notes left on the plaintiff's car, which occurred several years before the plaintiff filed her charge, could not have contributed to her hostile work environment because the employer took prompt remedial action as to the notes) (attached). The court's instruction was also erroneous as a legal matter because Title VII "does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability." Morgan, 536 U.S at 117. As the Supreme Court explained, incidents "are part of one unlawful employment practice" and employers therefore "may be liable for all acts that are part of this single claim." Id. at 118 (emphasis added). Because an employer's liability is based not on individual acts but on the unlawful employment practice they cumulatively create, an employer's remediation of individual acts does not constitute an "intervening action" sufficient to justify their exclusion from the hostile work environment. Morgan, 536 U.S. at 118. This Court held as much in Phelan v. Cook County. 463 F.3d 773. In Phelan, the employer argued that it was not liable for the plaintiff's harassment by co- workers because it had remedied the harassment she suffered while working in a boiler room by transferring her and because it lacked knowledge of any subsequent harassment. Id. at 785. This Court rejected that argument, stating that the transfer "did not make irrelevant the harassment that occurred in the boiler room." Id. This Court stated, "the question regarding remedial steps taken" is whether the employer "took steps to stop the harassing activity as a whole; the transfer . . . [wa]s simply one measure taken by the defendants in an arguable attempt to stop the harassment." Id. (emphasis added). As in Phelan, in this case the district court erred by splitting up the hostile work environment and concluding that one aspect - in this case, the pornography - had been remedied and was therefore irrelevant. As this Court made clear in Phelan, an employer's liability hinges upon whether it "took steps to stop the harassing activity as a whole." Id. (emphasis added). Because the evidence here showed that Hill's failed to stop the harassment as a whole, the court erred by excluding the pornography from the jury's consideration. The district court's reasoning was also erroneous as a factual matter because, even if Hill's remediation were relevant, there was evidence from which the jury easily could have found that Hill's failed to promptly and effectively remedy the pornography and that the pornography extended into the limitations period. Bright testified that she complained about it to Doug Dils, her Processing team leader, and that he did nothing (which is what she expected, since he also viewed the pornography). Tr.62, 68. Isaacs testified that she called the Colgate hotline in January of 2002 to complain about pornography, but nothing was done. Tr.479, 482-83. Even Hill's HR manager, Jackie Vanderpool, admitted that by January 2002 she was aware of an employee complaint about inappropriate e-mails, but she did nothing except to reissue guidelines on the appropriate use of e-mail. A- 76(Tr.861-62). Bright complained again about the pornography in February or March of 2002, and Hill's finally suspended eleven employees in March of 2002, although it is unclear whether it did so in response to Bright's latest complaint. See supra, at 11. Based on testimony as to the prevalence of the pornography and the fact that eleven employees were suspended for it - including Bright's area leader, Everett Jenkins - the jury also could have concluded that Hill's had notice of the pornography long before March of 2002 but failed to do anything about it.<7> There was also more than enough evidence for the jury to conclude that Hill's failed to adequately remedy the pornography once it finally addressed it. Neither Bright nor Isaacs was ever interviewed about the pornography, despite their complaints. See supra, at 11. Although eleven employees were suspended, Bright, Isaacs, and Brown all testified that the pornography persisted after the suspensions, and Bright even testified that Pebworth begged her not to tell corporate about it. Id. Accordingly, the jury should have been allowed to consider the pornography. See Phelan, 463 F.3d at 785 (factual issue as to adequacy of remedial measure existed where there was "substantial evidence that the harassment continued" after the plaintiff's transfer); Brandewie v. Del. Dep't of Correction, No. 05-625, 2006 WL 3623817, at *13 (D.Del. Dec. 11, 2006) (rejecting the defendant's argument that its "remedial actions insulate[d] it from liability" where the plaintiff repeatedly complained about coworkers spreading rumors about her on a pornographic website and where coworkers continued accessing the website on work computers after the defendant's purported remediation) (attached). The court also erred in prohibiting the jury from considering evidence of pornography after March of 2002 on the ground that Hill's did not have notice of it. A-68(Tr.738). Hill's knowledge of post-limitations period pornography is relevant only to a determination of whether it was negligent in discovering the harassment and therefore could be liable for it, not to a determination of whether the harassment was actionable. See Phelan, 463 F.3d at 784 (stating that employer is liable for harassment if it was negligent in failing to discover or remedy it). Even if Hill's knowledge were relevant, the jury reasonably could have concluded that Hill's had knowledge of the pornography because Issacs testified that she complained about it after March 29, 2002. Tr.479-80. Finally, the court also erred by looking at the post-March 29, 2002, pornography in isolation and concluding that it could not be considered because it was neither severe nor pervasive. A-68(Tr.738). In Morgan the Supreme Court recognized that although "a single act of harassment may not be actionable on its own," it may, in combination with other acts, constitute an unlawful hostile work environment. Morgan, 536 U.S. at 115. Accordingly, in "determining whether an actionable hostile work environment exists," courts must "look to 'all the circumstances.'" Morgan, 536 U.S. at 116 (citation omitted) (emphasis added); see also Burns v. McGregor Elec. Indus. Inc., 955 F.2d 559, 564 (8th Cir. 1992) ("Under the totality of the circumstances analysis, the district court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode."), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Accordingly, the district court erred by determining that the pornography, by itself, was not actionable and therefore could not contribute to Bright's hostile work environment claim. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for a new trial on Bright's claim of sexual harassment. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, DC 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,947 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Attorney for Equal Employment Opportunity Commission Dated CERTIFICATE OF SERVICE I hereby certify that two copies and one digital version of the foregoing corrected brief were mailed, overnight, on July 24, 2007, to each of the following: Richard L. Darst, Esq. Suite 800, Keystone Crossing Plaza 8888 Keystone Crossing Boulevard Indianapolis, Indiana 46240-4636 (317) 573-8888 Attorney for Plaintiff-Appellant Jane A. Dall, Esq. Baker & Daniels 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 (317) 237-0300 Attorney for Defendants-Appellees Anne Noel Occhialino Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, DC 20507 (202) 663-4724 *********************************************************************** <> <1> "R" refers to the record docket number. <2> "A" refers to the Plaintiff's Appendix. <3> At trial, Hill's offered a different version of events and, on cross-examination impeached Bright and other witnesses as to some of their testimony as to the existence and frequency of the harassment. See, e.g., Tr.241, 559-60. Fact-finding is within the jury's province, however, as are issues of witness credibility. Accordingly, the Commission has focused on the evidence from which a reasonable jury could find in Bright's favor. <4> Bright sued Hill's and its parent company, Colgate-Palmolive Co. The district court dismissed Colgate-Palmolive as a defendant because it was not Bright's employer; the EEOC takes no position on this issue on appeal. <5> The court's final instruction that the jury could consider harassment occurring before March 29, 2002, that was part of the same hostile work environment failed to correct the court's error because the court never retracted its earlier instruction prohibiting the jury from considering any conduct before March 29, 2002. Moreover, the next paragraph of the final jury instruction explicitly prohibited the jury from considering any events that occurred in Processing, which encompassed conduct from the day Bright started work through her transfer at the end of 2000 or the beginning of 2001. At a minimum, the instructions were misleading and confusing. See, e.g., Humphrey v. Staszak, 148 F.3d 719, 723 (7th Cir. 1998) (if a misleading instruction has prejudiced a party, a new trial is required). <6> It is unclear what the district court even meant by this statement. A plaintiff's "knowledge of other people in other parts of the" workplace is completely irrelevant to a determination of whether pre-limitations period conduct was part of a single hostile work environment or whether that conduct was actionable. <7> The district court actually cut off additional testimony as to the prevalence of the pornography before March of 2002. See, e.g., Tr.625. For reasons discussed above, this was erroneous.