No. 10-1476 No. 10-1552 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant and Plaintiff-Appellee, v. CROMER FOOD SERVICES, INC., Defendant-Appellee and Defendant Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of South Carolina The Honorable Henry M. Herlong, Presiding _______________________________________________________ OPENING BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court Decision 14 SUMMARY OF ARGUMENT 17 ARGUMENT 19 A. The Standard of Review is De Novo. 19 B. A Reasonable Jury Could Find Cromer Food Liable Because, for Almost Four Months, It Failed to Take Any Action to Stop Greenville Hospital Employees From Sexually Harassing Howard Despite His Repeated Complaints. 20 C. A Reasonable Jury Could Find That Cromer Food's Belated Response to the Harassment - Requiring Howard to Accept a Transfer Making Him Worse Off or Be Terminated - Was Ineffective. 27 D. The District Court Erred in Dismissing the EEOC's Retaliation Claim Because a Reasonable Jury Could Find Howard's Forced Transfer Was Materially Adverse, Given the Position's Greater Hours, Lesser Hourly Pay, and Howard's Particular Circumstances. 32 CONCLUSION 35 REQUEST FOR ORAL ARGUMENT 36 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) 32, 34 Conner v. R.H. Barringer Distr. Co., 152 F. Supp. 2d 856 (M.D.N.C. 2001) 28 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) 23 Dunn v. Washington County, 429 F.3d 689 (7th Cir. 2005) 20, 30 EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009) 20, 26 EEOC v. Fairbrook Med. Clinic, P.A., __ F.3d __, 2010 WL 2432734 (4th Cir. 2010) 19 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) 22, 26 Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005) 21 Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir. 1990) 28 Holland v. Washington Homes, Inc., 487 F.3d 208 (4th Cir. 2007) 32 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006) 21, 24 James v. Booz-Allen & Hamilton, 368 F.3d 371 (4th Cir. 2004) 32 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) 21 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) 21, 26 Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133 (2000) 19, 23 Rhoads v. FDIC, 257 F.3d 373 (4th Cir. 2001) 35 Scurlock-Ferguson v. City of Durham, 221 Fed. Ap'x 292 (4th Cir. 2007) 33 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) 28 TABLE OF AUTHORITIES Cases (cont'd) Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir.2001) 21 U.S. v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) 20 Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001) 33 Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003) 21 Williamson v. City of Houston, 148 F.3d 462 (5th Cir. 1998) 23 Statutes 28 U.S.C. §§ 451, 1291, 1331, 1337, 1343, 1345 1 42 U.S.C. §§ 2000e-2(a), 3(a) 14 42 U.S.C. §§ 2000e-5(f)(1), (3) 1 Other Authorities Enforcement Guidance on Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997) 30 Rules Fed. R. App. P. 4(a)(1)(B) 1 Fed. R. Civ. P. 56(c)(2) 19 Local Rule 34(a) 36 Regulations 29 C.F.R. § 1604.11(e) 21 STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this action against Cromer Food Services, Inc. ("Cromer Food") under the authority granted in Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). See 42 U.S.C. §§ 2000e-5(f)(1), (3). (JA49-50) The district court had jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. On February 26, 2010, the district court entered an order granting a motion for summary judgment filed by Cromer Food. The EEOC filed a timely notice of appeal on April 26, 2010. See Fed. R. App. P. 4(a)(1)(B). The district court denied Cromer Food's motion for attorneys' fees on April 15, 2010 (JA314), and Cromer Food filed a notice of appeal on May 16, 2010. (JA316) This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Once an employer knows or should know its employee is being sexually harassed by employees of its client, Title VII requires the employer to take effective action to stop it. There is evidence that Cromer Food laughed at and otherwise ignored harassment complaints by Homer Howard before forcing him to choose between termination and a transfer that would have made him worse off. Could a jury find that Cromer Food failed to take effective action? 2. An adverse action is material for Title VII retaliation purposes if it might dissuade a reasonable person in the employee's circumstances from making or supporting a complaint. There is evidence that Howard's EEOC charge prompted Cromer Food to make him choose between termination and a transfer to a position requiring more hours at less pay per hour and that was known to conflict with his childcare responsibilities. Could a jury find this action was materially adverse? STATEMENT OF THE CASE The EEOC alleges that Cromer Food subjected its employee, Homer Howard, to a sexually hostile work environment by repeatedly ignoring Howard's complaints that he was being sexually harassed by employees of Cromer Food's client, the Greenville Hospital System ("Greenville Hospital"). (JA51 7) The EEOC also alleges that Cromer Food retaliated against Howard when, in response to Howard filing an EEOC charge and complaining to Greenville Hospital, Cromer Food gave him an ultimatum to either accept an intolerable transfer or be terminated, resulting in his constructive discharge. (Id. at 8) The district court granted Cromer Food's motion for summary judgment, and the EEOC filed a notice of appeal. (JA92) The district court denied Cromer Food's motion for attorneys' fees on April 15, 2010 (JA314), and Cromer Food appealed. (JA316) This Court consolidated the two appeals on May 19, 2010. STATEMENT OF FACTS A. Background Cromer Food sells food and beverages through vending machines it places on its customers' premises. (JA182:11-21) In July 2006, Homer Howard began working for Cromer Food as a route driver on the second shift - 3 p.m. to 11 p.m. - Mondays through Fridays. (JA187:6-10) Howard's primary job was to restock the vending machines on the premises of Greenville Hospital, Cromer Food's largest client. (JA190:2-7) On November 30, 2006, Bill Williams, one of Howard's coworkers, left a note in the hospital canteen which read, "Homer is gay." (JA77:3-5; JA86:23- 87:5) The next day, Howard showed the note to Cromer Food's General Manager, Greg Adams, and complained about it. (JA87:8-13; JA238:8-19) Adams laughed, told Howard he did not think it was anything serious, and said he would report it to C.T. Cromer, the company's owner, but he never did. (JA87:14-18; JA176:1-8) The evidence reflects that the "Homer is gay" note was the catalyst causing two employees of the hospital, John Mills and Andre McDowell, to make unwanted sexual comments to Howard on a daily basis over the ensuing four months. (JA245 3-4; JA77:18-JA78:6) Every conversation Mills and McDowell initiated with Howard over the next four months was of a sexual nature. (JA139:2-10) Howard tried to avoid the sexual harassment (JA245 5), but he often could not escape because he was in the middle of restocking a vending machine and could not leave it unattended. (JA245-46 5-6) Mills and McDowell frequently waited for Howard as he made his rounds in the hospital, making it virtually impossible to avoid them without neglecting his job. (JA120:16-JA121:2; JA245-46 5-6) The first harassing incident Howard experienced from Mills or McDowell occurred on Monday, December 4, 2006, Howard's first workday after reporting Bill Williams's offensive note to Adams. While Howard was servicing vending machines in the canteen, Mills approached Howard and said, "Homer, I hear you're gay," to which Howard replied, "No, I am not." (JA76:17-21) Later that day, while Howard was eating lunch with his cart nearby, either Mills or McDowell approached him (Howard's testimony is unclear as to which one) and began the following conversation, as described by Howard: "'Homer, do you have anything hard on your cart?' And I said, 'No.' And he says, 'Well, I'm just in the mood to have something hard in my mouth so I can suck on it.'" (JA72:17- JA73:2) Howard responded by telling the harasser that he "doesn't play those kind of games" and that it was "all bullshit." (JA73:8-13) The next day, Howard reported this incident to Adams, stating that "there was some gentlemen at the hospital that were asking me homosexual questions, asking me was I gay," and told Adams he did not like it. (JA88:19-JA89:7) Adams responded, "Homer, it was just a joke. Let it go." (JA89:8-9) Howard told Adams that he "didn't find it as a joke." (JA89:9-10) Adams did nothing in response to this complaint. (JA89:16) On December 6 or 7, 2006, Mills approached Howard and told him that being gay was nothing to be ashamed of; that he has a son and used to be married; but that since he "turned gay" he had "never been happier." (JA79:3-6) Howard then told Brian Tyner, his direct supervisor, that he was having problems at work, informed Tyner of "the circumstances that's happened," and asked if Tyner would change his route or provide some other remedy. (JA89:16-25) Tyner told Howard he had already spoken to Adams and that Howard should not take the harassment seriously because "faggots are ignorant, retarded people, and Homer, I know you're not retarded. So quit worrying about it." (JA90:1-5) The next week, Howard told Gary Roper, another supervisor (though not his own) that he was having a lot of problems and that he was being harassed. (JA90:9-14) Roper responded that it was unfortunate that it was not being handled properly but Adams had already dealt with it and he did not want to hear any more about it. (JA90:16-25) In mid-December 2006, Howard spoke to Chet Cromer - C.T. Cromer's son and a manager with the company - and told Chet Cromer "what was going on." (JA91:16-17) Chet Cromer told Howard that he would tell his dad, which he did, and as a result Howard met with C.T. Cromer one-on-one later that evening. (JA92:6-10) C.T. Cromer was "upset" and "distraught," (JA92:12; JA93:20) and the first words out of his mouth were, "Do you not realize this could cost me everything?" (JA92:15-17) C.T. Cromer dominated the conversation and Howard had trouble getting any words in. (JA93:15-17) Cromer Food met with employees on December 18, 19, and 20, 2006, to discuss the company's harassment policy (JA64-65), although Howard never received any such training. (JA246 7-8) The meetings apparently focused only on harassment by Cromer Food employees. (JA64; JA193:6-12) The harassment of Howard by Greenville Hospital's employees, Mills and McDowell, continued. Shortly before Christmas 2006, while Howard was eating, he heard Mills and McDowell laughing behind his back, after which Mills approached him and said, "Homer, you ever tried the turkey bone?" (JA80:10-12) Howard responded, "I don't want to hear it." (JA80:12-13) Mills replied, "Homer, it's so enjoyable, getting a turkey leg and sucking the meat off the bone." (JA80:13-15) Howard said, "John, would you please leave me alone? I've had enough. This is an everyday occurrence. It's got to quit." (JA80:15-18) This encounter took place in the open, in front of everyone in the cafeteria. (JA81:21- 23) Howard understood Mills to be serious, not joking (JA80:20-22), and he believed Mills and McDowell were attempting to intimidate him and/or make sexual advances toward him without invitation. (JA81:3, 6-11) The next day, Mills approached Howard and said, "You've got a nice walk . . . I'll see you later." (JA82:1-3, 13-16) Around this same time - late December 2006 - Mills approached Howard while he was servicing vending machines, told Howard about his sexual fantasies regarding oral sex, and propositioned him for a sexual encounter, saying, "Why don't you just come up here after nine o'clock? It'll be just you and me." (JA83:2-11; JA121:9-20) Again, Howard took Mills seriously (JA83:15-17), and responded, "John, listen, I'm not interested. I don't care and I don't want to be involved in this. Leave me alone. I'm not gay." (JA83:11-14) Shortly thereafter, McDowell approached Howard and asked if he had any cupcakes on his cart for refilling the vending machines because, McDowell said, he was "in the mood to have something to lick it out." (JA84:5-9) Howard responded, "Andre, it's disgusting, and I don't want to hear this bullshit no more. . . . I'm tired of it. You've got to stop." (JA84:10- 12) This one-on-one encounter with McDowell was somewhat unusual because McDowell usually followed the lead of Mills. But Howard testified that McDowell on occasion would say things on his own, such as, "Homer, I want a white man over black men. I like white meat. I don't like dark meat." (JA137:4- 9) On New Year's Eve, during work, Mills propositioned Howard (apparently with McDowell present) by inviting Howard to come over to his house after work to join Mills and his boyfriend to "have ourselves a few wines, settle down, relax, and let the evening take its place." (JA123:11-15) Howard pointedly declined the offer: "No. No way. I'm not going anywhere." (JA124:2-4) Howard believes Mills invited him to his house two more times during the course of his employment. (JA124:5-6) Howard also testified that on different occasions Mills told him about how he likes to "go down" on his lover and how his lover enjoys "going down" on him; that Mills told him "[o]ral sex is one of the most enjoyable sex there is"; that Mills would grab and fondle himself; and that Mills "would constantly be explaining to me how big his boyfriend is and . . . would just go on and on." (JA136:12-25) Howard would respond to such comments by telling Mills that he "did not want to hear this." (JA136:15-17) Howard testified that he met with C.T. Cromer again in January 2007 and told him that the harassment was getting worse. (JA95:20-22; JA97:11-15) C.T. Cromer told Howard, "I'm not responsible for the hospital. I'm only responsible for Cromer Food Service. If you have a problem with a Cromer Food Service Employee, I can deal with it. But if you've got a problem at the hospital, then you've got to deal with the hospital, because I'm not responsible for that." (JA96:19-25) C.T. Cromer would not allow Howard to explain his experiences at the hospital in detail. (JA129:21-JA130:19) Howard reported the harassment directly to Greenville Hospital in January 2007, speaking on the phone to an unidentified woman whom he believed worked in Greenville Hospital's human resources department. (JA98:13-JA99:10) Nothing happened as a result of that report. (JA99:6-8) Also in January 2007, Howard complained to Ronnie Galloway, Mills' and McDowell's supervisor at the hospital, telling him Mills and McDowell were "approaching me, inviting me, and doing different things." (JA124:13-JA125:2, 18) Galloway responded, "This is sexual harassment." (JA125:3) Howard agreed and said to Galloway, "I wish you could put a stop to it . . . [b]ecause my employer is not and I really wish something could happen." (JA125:4-7) Galloway said he would speak to Mills and McDowell, which he did, and the harassment stopped briefly as a result - for "probably two days." (JA125:7-12; JA267:24-JA268:23) The harassment then resumed. As it did, Howard recalls "constantly" telling Greg Adams, the General Manager, who Howard considered his "main supervisor," that the "harassment at the hospital [was] still continuing on." (JA100:9-12) For example, Howard remembers once telling Adams that "[t]here [are] some gentlemen at the hospital that's really getting vulgar, getting very obnoxious. They're always talking about sex." (JA139:15-18) Howard testified that Adams's consistent response to his complaints was to dismiss them and to tell Howard that the harassers were not serious. (JA140:10-13 ("Q: And Greg's response every time was it's just a joke, you need to be more resistant? A: 'Quit being a crybaby. They're only teasing you.'")) Howard testified that when he told Adams that hospital employees were following him around, stalking him in certain areas of the hospital, and waiting for him to be there, Adams simply told Howard that the harassers were just "guys goofing around" and that he should "let it go" (JA100:13-24), to which Howard responded, "Greg, it's more than that." (JA100:24-25) When Howard once asked if he could transfer to a different second-shift route that he believed had become available and that would not require him to go to Greenville Hospital, Adams was equally dismissive, saying, "No. Quit whining." (JA133:6-16) Adams testified that he remembers receiving only one complaint from Howard, in what "seem[ed] like" February 2007 (JA240:14-15), but he said there could have been more. (JA241:9-13; JA243:23-JA244:4) Adams testified that Howard told him employees at Greenville Hospital were making sexual advances toward him and making vulgar, sexual statements. (JA239:2-16) Adams did not report the one complaint he remembers, as he did not consider it to be a complaint of sexual harassment. (JA240:21-25) On February 13, 2007, the day before Valentine's Day, Mills harassed Howard physically. As Howard was shopping for a gift for his wife in the hospital's gift shop, Mills approached Howard from behind, put his arms around his chest and said, "Oh, Homer. I didn't know you loved me that much. You're buying me a Valentines gift?" (JA115:6-20) Howard threw Mills off him and yelled, "If you ever put your hands on me one more time . . . . I have had it with you. You don't touch me. You don't put your hands on me. And I wish you'd get the hell out of my face." (JA115:21-JA116:1) Howard filed a charge with the EEOC on March 6, 2007, alleging sex discrimination. (JA277) Cromer Food received notice of the charge shortly thereafter. (JA217:24-JA218:3) A couple weeks later, on March 22, 2007, Howard also reported the harassment to Greenville Hospital for a third time. Howard reported it to Pat Leach, who Howard believed to be the president of Greenville Hospital (JA125:21) but who was actually its Manager of Environmental Services. Howard "explained to [Leach] everything that was going on." (JA126:1-4) Leach immediately typed up a memorandum regarding his meeting with Howard and sent it to Greenville Hospital's human resources department. (JA276:1-6) That same day, C.T. Cromer called Howard into his office and said, "I got this stupid letter from the EEOC." (JA102:20-21) Howard used the opportunity to again tell C.T. Cromer about the harassment, giving him the full details. (JA210:4- 6; JA211:16-17) Howard also told C.T. Cromer that he had reported the harassment to Greenville Hospital. (JA215:19-25) C.T. Cromer testified that he was unhappy that Howard reported the harassment to Greenville Hospital. (JA216:14-17) Contrary to Howard's testimony, C.T. Cromer testified that his discussion with Howard on March 22, 2007, was the first time Howard or anyone else at Cromer Food told him that Greenville Hospital employees were harassing Howard. (JA207:25-JA208:12) He also testified that Howard refused to tell him the identities of the harassers. (JA212:10-18; JA216:23-25) C.T. Cromer said he asked Howard repeatedly why Howard never told him about the harassment and that Howard did not really answer the question. (JA211:1-9) The next day, March 23, 2007, when Howard reported for work, Adams told Howard not to bother clocking in. (JA103:23-JA104:1) Instead, Howard met with C.T. Cromer and Adams, at which time he was given an ultimatum: either accept a transfer or be fired. (JA103:12-17) C.T. Cromer did not discuss other options to the transfer or give Howard time to mull over the offer or to speak to his wife, telling Howard, "I need an answer before you walk out of this office. Either you take it, or you're done." (JA110:4-8) During their conversation, C.T. Cromer also said he was getting too many complaints from Greenville Hospital, and that Greenville Hospital had called him and said one of C.T. Cromer's employees complained about sexual harassment. (JA134:14-23) C.T. Cromer gave Howard a letter formalizing the transfer offer and read it to him. (JA104:12-17) The offer was for a route driver position on the first shift - 4:00 a.m. to 3:30 p.m. (including a 30 minute unpaid lunch break each day) - working a fifty-five hour workweek, Mondays through Fridays. (JA143) The offered pay rate was $10 per hour for the first forty hours and $15 per hour thereafter, with his weekly pay thus coming to $625. (Id.) Because the overtime was mandatory, the effective pay rate for the offered first-shift position was approximately $11.26 per hour. By contrast, in the second-shift driver position in which Howard had been working, he made $500 a week - consisting of a $400 per week salary plus a $100 per week bonus in his first year - for forty hours (JA107:21-22; JA166), which made the pay rate effectively $12.50 per hour. Pay and hours notwithstanding, C.T. Cromer's ultimatum to Howard - either accept a transfer to the first shift or be fired - also put Howard in a difficult practical bind. Howard's young son has a major medical condition requiring doctor and hospital visits. (JA106:11-17) Howard's wife does not drive due to nerves, so Howard has to drive his son to receive medical care during the day. (JA106:18-23) Working the second shift at Cromer Food permitted Howard to meet his childcare responsibilities, which C.T. Cromer understood because he personally hired Howard and they discussed it at that time. (JA106:8-9; JA109:16- 23; JA203:23-JA204:11) Howard told C.T. Cromer he could not accept the transfer offer, saying, "C.T. you're putting me in a position you know that ain't right." (JA109:25-JA110:3) Accordingly, Howard's employment with Cromer Food ended that day, March 23, 2007. (JA220:8-9) The EEOC sued Cromer Food, alleging the company violated 42 U.S.C. § 2000e-2(a) by failing to take prompt and effective action to stop and remedy the sexual harassment Howard experienced. (JA51 7) The EEOC also alleged the company violated 42 U.S.C. § 2000e-3(a) by transferring Howard to an undesirable shift at a lower pay rate in response to his complaints to Cromer Food, Greenville Hospital, and the EEOC, and that Cromer Food's actions resulted in Howard's constructive discharge by making his work conditions so intolerable that he was forced to resign. (JA51 8) B. District Court Decision The U.S. District Court for the District of South Carolina granted summary judgment to Cromer Food and dismissed both the EEOC's claim for sexual harassment and its claim for retaliation. (JA9-JA24) In dismissing the EEOC's case, the district court rejected a well-reasoned report by a magistrate judge recommending that summary judgment be denied. The district court agreed with Cromer Food on the two objections it filed to the magistrate judge's report and recommendation: (1) that liability for the harassment could not be imputed to Cromer Food; and (2) that no adverse employment action was taken against Howard to support the EEOC's retaliation claim. With respect to imputing the Greenville Hospital employees' harassment to Cromer Food, the district court observed that there is no factual dispute as to whether Howard's superiors at Cromer Food knew about the alleged harassment, but that "there is a factual dispute regarding when Howard's superiors were made aware of the severity of the harassment." (JA17) The district court held, however, that this dispute is not material because, prior to March 2007, Howard did not provide any Cromer Food employees with specific details of the purported sexual harassment. (JA18) The district court focused on a particular section of Howard's deposition in which Cromer Food's attorney asked Howard if he ever told Adams or other managers specifically what the harassers did to him or provide other information that would allow them to conclude that the harassers were not joking. Howard answered "no," stating all he told them was that he "was being sexually harassed at a hospital." (JA18 (quoting JA139:22-JA140:9 (Howard Dep.)) The district court further held that once Cromer Food was made aware of the severity of the harassment - which the court dated at March 2007 - the company took effective action to remedy and prevent further harassment by giving Howard an alternative work assignment as a first-shift route driver. (JA19) Regarding the retaliation claim, the district court held that the EEOC cannot establish that Howard's transfer was an adverse employment action or that there was a causal connection between Howard's EEOC charge and the transfer. The court focused on the transfer's interference with Howard's responsibility to transport his son to receive medical care and held that no adverse action occurred. According to the court, the mere fact that the transfer was less appealing did not mean the transfer offer was an adverse employment action. There must be a "'decrease in compensation, job title, level of responsibility, or opportunity for promotion'" for a transfer to a job with commensurate pay to be an adverse employment action. (JA22) The district court further said there is no evidence that Howard would not have been able to schedule his son's appointments to begin after his new shift ended at 3:30 p.m. (Id.) Moreover, the district court said there is no evidence Howard would have been unable to leave work in an emergency and Howard was less than four months away from being eligible for leave benefits which he then could have used as well. (JA22-JA23) The district court acknowledged that Cromer Food could have contacted Greenville Hospital "to try and stop the offensive conduct." (JA23) But it said that given that Howard's own complaints to Greenville Hospital were ineffective, the only definitive cure was to offer Howard a transfer to the first-shift position. (Id.) SUMMARY OF ARGUMENT Summary judgment is improper in this case. The evidence is sufficient to find that Cromer Food failed to take effective action in response to Howard's complaints that he was being sexually harassed by two Greenville Hospital employees. The district court held that Howard did not provide any Cromer Food managers with specific details of the sexual harassment until March 2007, and that once Cromer Food knew the details it took effective remedial action by offering Howard a transfer to a first-shift driver position. But contrary to the district court's conclusion, Howard's complaints were sufficiently detailed to at least take them seriously. Yet Cromer Food managers ridiculed and resisted Howard's repeated complaints for months and did nothing to protect Howard from the hostile work environment to which Greenville Hospital's employees subjected him. Cromer Food should have taken Howard's complaints seriously from the outset by contacting Greenville Hospital to assert Cromer Food's commitment to protect Howard from unlawful discrimination and to demand that the hospital correct the problem. The district court erred in holding that Howard's many complaints to numerous managers over several months were insufficient to require Cromer Food to respond. Cromer Food only responded once it learned Howard had filed an EEOC charge and complained directly to Greenville Hospital. But Cromer Food's belated response - giving Howard an ultimatum to either accept an intolerable transfer or be terminated - was unreasonable and ineffective because it would have made Howard worse off by requiring mandatory overtime and a lower effective pay rate, and by conflicting with his responsibility to drive his sick child to receive medical care. The district court erred in holding the transfer was a reasonable and effective remedy. In addition, as to the retaliation claim, a jury could similarly find that the transfer was a materially adverse action in retaliation for Howard's EEOC charge. A materially adverse action for Title VII retaliation purposes is any action that might dissuade a reasonable person in the employee's circumstances from complaining of discrimination or supporting such a claim. Here, the negatives that came with the transfer - a greater number of hours, lower per-hour pay, and a known conflict with Howard's responsibility to drive his son to routine and emergency medical appointments - were such that they well might dissuade a person in Howard's position from filing a charge or otherwise making a complaint. And, given the animus that the decisionmaker, C.T. Cromer, showed toward Howard's complaints in general and his EEOC charge in particular, and the short time period between the charge and C.T. Cromer's decision to force the transfer on Howard, a jury could find the transfer-or-be-terminated decision was caused by Howard's protected activity. Thus, the district court erred in dismissing the EEOC's retaliation claim. ARGUMENT A. The Standard of Review is De Novo. The district court's grant of Cromer Food's motion for summary judgment is subject to de novo review, meaning this Court applies the same summary judgment standard as the district court. E.g., EEOC v. Fairbrook Med. Clinic, P.A., __ F.3d __, 2010 WL 2432734, *10 (4th Cir. 2010). Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party, Cromer Food, is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). In making this determination, the Court "must review the record taken as a whole . . . [and] must draw all reasonable inferences in favor of the nonmoving party" - here, the EEOC - without making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133, 150 (2000) (citation and quotation marks omitted). The Court should review the record in the light most favorable to the EEOC, giving credence to evidence supporting the EEOC and disregarding evidence supporting Cromer Food unless it is "'uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'" Reeves, 530 U.S. at 151 (analogizing Fed. R. Civ. P. 50 to Fed. R. Civ. P. 56, and quoting 9A C. Wright & A. Miller, Federal Practice & Procedure § 2529, at 300 (2d ed. 1995)). B. A Reasonable Jury Could Find Cromer Food Liable Because, for Almost Four Months, It Failed to Take Any Action to Stop Greenville Hospital Employees From Sexually Harassing Howard Despite His Repeated Complaints. For a sexual harassment claim to survive summary judgment, the evidence, when viewed in the light most favorable to the EEOC, must allow a reasonable jury to conclude that the harassment was (1) unwelcome; (2) based on sex; (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the employer. EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). With respect to these elements, Cromer Food objected to the magistrate's report and recommendation only regarding imputability (JA14), and thus this is the only harassment element at issue on appeal. See U.S. v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (holding scope of issues on appeal controlled by scope of issues presented to district court via objections to magistrate judge's recommendations). The Fourth Circuit has not yet ruled on whether employers can be held liable for harassment by non-employees, but other circuit courts have held that they can. See, e.g., Dunn v. Washington County, 429 F.3d 689, 691 (7th Cir. 2005); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir.2001). As the district court observed (JA16), holding employers liable for the acts of non-employees is consistent with the EEOC's Sexual Harassment Guidelines, which state that the same negligence standard that applies in coworker harassment cases applies in cases involving harassment by non-employees. See 29 C.F.R. § 1604.11(e). While the EEOC's guidelines are not binding, they "constitute a body of experience and informed judgment to which courts and litigants may look for guidance." See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (internal quotation marks and citation omitted). This Court has articulated the negligence standard as follows in the analogous context of harassment by coworkers: "The employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003). The "knew or should have known" requirement means that while the employer "cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists," it also cannot adopt a "see no evil, hear no evil" strategy. Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006) (citation and internal quotation marks omitted); Ocheltree, 335 F.3d at 334. Knowledge is imputed at the point when "a reasonable person, intent on complying with Title VII, would have known about the harassment." Ocheltree, 335 F.3d at 334 (emphasis added; internal quotation marks and citation omitted). Looking at the evidence in the light most favorable to the EEOC, a reasonable jury could conclude that Cromer Food had actual or constructive notice of the harassment long before March 2007. "Evidence of repeated complaints to supervisors and managers creates a triable issue as to whether the employer had notice of the harassment." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 320 (4th Cir. 2008). The evidence here, viewed in the light most favorable to the EEOC, shows that the harassment began in early December 2006 and, within a few weeks, Howard had complained to five different managers, including once to C.T. Cromer. (JA88-JA92:6-10) Howard complained to C.T. Cromer a second time in January 2007, telling him the harassment was "getting worse." (JA96:15-18; JA97:14-15) As the harassment continued, he "constantly [told]" General Manager Greg Adams that the harassment was "still continuing on." (JA100:9-12) Although C.T. Cromer disputes knowing prior to March 2007 about the harassment to which Greenville Hospital employees Mills and McDowell subjected Howard, on summary judgment Howard's testimony that he had complained to C.T. Cromer twice as of January 2007 should be assumed true. See Reeves, 530 U.S. at 151. Moreover, Howard had complained to numerous managers other than C.T. Cromer (JA174:21-JA175:5; JA180:2-12), who all had a duty to report the complaints to the president according to company policy. (JA63 ("Any employee who becomes aware of any harassment of any employee by a non-employee should report such harassment to the president of Cromer Food Services."); JA178:3-25) Thus, notice of Howard's complaints is imputed to the company. See Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998) (holding that notice of harassment given to official with duty to pass such information up the chain of command is imputed to the employer); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) (holding knowledge of sexual harassment imputed to employer where supervisor had duty to relay the complaints) (citing Restatement (Second) of Agency § 275 ("the principal is affected by the knowledge which an agent has a duty to disclose to the principal . . . to the same extent as if the principal had the information")). Despite the evidence that Cromer Food received repeated notice of the harassment well prior to March 2007, the district court seized on a particular section of Howard's deposition in which Cromer Food's attorney asked Howard if he ever told Adams or other managers specifically what the harassers did to him or provided other information that would allow them to conclude that the harassers were not joking. Howard responded "no," and said that all he told them was that he "was being sexually harassed at a hospital." (JA139:22-JA140:9) The district court held this was insufficient as a matter of law to require Cromer Food to take any responsive action. (JA18) The district court erred. The court's focus on this snippet in isolation distorted the overall picture presented by Howard's deposition testimony, viz., that of a man barraged by sexual advances and vulgar sexual statements whose repeated complaints to his employer were laughed at or ignored. Moreover, even taking this testimony alone, the court's holding that Howard's repeated complaints to various managers - using the words "sexual harassment" - could not permit a jury to conclude that Cromer Food had sufficient notice of sexual harassment was simply wrong. To be sure, a complaint's lack of specificity may be relevant in evaluating the reasonableness of the employer's response, Howard, 446 F.3d at 570 n.10, but it does not excuse total inaction. The employer has to take the complaint seriously and at least ask follow-up questions designed to ensure a meaningful remedial response. See id. at 569-70 (holding that when employee contacted human resources about a coworker and said "this mother f****** put his hands on me," it was sufficient to put the employer on notice of a potentially serious workplace harassment problem, and a jury could at least conclude that it was unreasonable not to ask follow-up questions). Cromer Food's managers asked Howard no questions and did not take his complaints seriously. (JA140:17-21) As Howard explained, Cromer Food simply left him to fend for himself for months despite his requests for help: Q: I'm wanting to know what your expectations were. What did you expect them to do and how they fell short of your expectations. A: Subjecting me over and over and over to sexual encounters, sexual advances, sexual taunting, touching, harassing. Just on and on and on. I've complained to all [C.T. Cromer's] management. He was aware of it. Where the company should have went from that point should have been their obligation and not mine. I know that nothing was taken care of. *** I don't know what circumstances would have helped. But they didn't make no attempts to try. And though I was even asking [for help]. (JA132:1-11, 18-20) General Manager Adams consistently laughed at Howard's complaints, told him not to take the harassment seriously, and otherwise failed to take any action even though Howard disabused Adams of any notion that the harassment was just a joke. (JA89:9-10 ("And I told him I didn't find it very pleasing. And his comment was, 'Homer, it's just a joke, let it go.' And I said, 'I didn't find it as a joke.'"); JA100:24-25 ("Gregg, it's more than that.")) Supervisors Tyner and Roper followed Adams's lead in rejecting Howard's complaints out of hand. (JA90:1-5, 16-21) C.T. Cromer, for his part, responded to Howard's complaints by lamenting that it "could cost him everything," by filibustering their discussions to prevent Howard from explaining, and by telling Howard that Cromer Food is not responsible for the conduct of Greenville Hospital's employees. (JA129:21- JA130:2; JA130:13-19) Obviously, ignoring complaints and affirmatively downplaying them are not effective remedial measures. See Central Wholesalers, 573 F.3d at 177-78 (holding employer's repeated failure to respond at all to complaints of harassment was an ineffective response); Sunbelt, 521 F.3d at 320 (holding reasonable jury could find company's remedial efforts deficient where manager did not take complaints seriously enough - telling complainant simply to keep a positive attitude and to let his problems roll off his shoulders - and the harassment continued). Given that the evidence supports a finding that Cromer Food failed to take seriously what it did know about the harassment, the district court should have charged the company with constructive knowledge of any additional details it may have needed to promptly correct the problem. Cf. Ocheltree, 335 F.3d at 334 (stating that "an employer may be charged with constructive knowledge . . . when it fails to provide reasonable procedures for victims to register complaints"). Unlike the district court, the magistrate judge got it exactly right in concluding that Howard gave "as complete a notice of the harassment as would ever be expected" and, to the extent his notice was somehow inadequate, "such inadequacy was a function of [Cromer Food's] own resistance to it." (JA38) C. A Reasonable Jury Could Find That Cromer Food's Belated Response to the Harassment - Requiring Howard to Accept a Transfer Making Him Worse Off or Be Terminated - Was Ineffective. The district court held that Cromer Food's forced transfer of Howard was a reasonable and effective remedy for the harassment. (JA19) The district court concluded that Howard could have worked around any problems accepting the transfer would have caused - stating that he could have scheduled his son's doctor's appointments later, used emergency leave, and used leave benefits he would have accrued in four months. (JA22-JA23) But there is no record evidence supporting the district court's conclusion, as is clear from the hearing below. (JA302:4-9 ("Court: Did Cromer provide any leave for its employees? Mr. Walter: I'm not aware - I don't know the answer to that question, Your [H]onor. He wasn't eligible for benefits until after he had been there a year."); JA304:24- JA305:5 ("Court: "[I]s there anything in the evidence concerning whether he could take leave or take medical leave? Ms. Drawdy: Your [H]onor, it is not in the evidence that's been thus presented. And I don't want to mislead the Court about benefits. He wasn't entitled to any until he had been there a year.")) The lack of record evidence regarding leave benefits should have favored the EEOC, not Cromer Food, given the summary judgment posture of the case. Even if the district court was correct, and Howard could have somehow worked around the difficulties caused by the transfer, that does not mean the transfer would have been an effective remedial measure had he accepted it. "A remedial measure that makes the victim of sexual harassment worse off is ineffective per se." Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (holding plaintiff's transfer did not make her worse off because she was merely returned to her regular job from a temporary assignment); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (holding remedial action was insufficient where employer twice changed the plaintiff's shift instead of changing the harasser's shift or firing him). Viewing the evidence in the light most favorable to the EEOC, a jury could find the transfer would have made Howard worse off. The first shift position required more hours at less pay per hour and conflicted with Howard's responsibility to drive his son to his medical appointments. The transfer thus was an inadequate response. See Conner v. R.H. Barringer Distr. Co., 152 F. Supp. 2d 856, 861 (M.D.N.C. 2001) (denying motion to dismiss hostile work environment claim where employer's response to the third complaint was a forced transfer from first shift to second shift despite knowing it conflicted with the plaintiff's childcare responsibilities: "While a transfer or change of shift might sometimes prove an adequate response to a complaint of sexual harassment, the approach taken by Defendant, which failed to consider Plaintiff's particular circumstances . . . does not qualify as an adequate response"). Even C.T. Cromer described Howard's second-shift route driver position as "ideal" as compared to the first-shift position, and said that very few people leave it. (JA215:16-18) This was in effect an admission by C.T. Cromer that he made Howard worse off when he forced Howard to leave his second-shift route driver position. Instead of laughing at and otherwise ignoring Howard's complaints for months and then "remedying" the problem by forcing him to choose between being terminated and being transferred to a position that would have made him worse off, Cromer Food could have and should have addressed the problem with Greenville Hospital in the beginning to ameliorate the harassment and allow Howard to continue in his "ideal" position. The district court's consideration of Cromer Food's legal duty with respect to Greenville Hospital seemed to have been colored by the fact that Cromer Food could not directly control Greenville Hospital's harassing employees. (JA297:19, 24-25 ("Court: What should they have done? . . . Did they have the authority to take corrective action of hospital employees?")) However, liability for harassment by third parties does not depend on such control. See Dunn, 429 F.3d at 691 ("Ability to 'control' the actor plays no role. . . . The employer's responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of the inequality matters not; what does matter is how the employer handles the problem.") (emphasis in original). The important question is whether Cromer Food did what it reasonably could do. The district court held that Cromer Food had no duty to affirmatively address the problem with Greenville Hospital because Howard had already done so to no avail. (JA15; JA18 n.4) But just because Howard's complaints to Greenville Hospital were ineffective, it does not follow that complaints by Cromer Food would have been ineffective as well. Importantly, Greenville Hospital's business relationship exists with Cromer Food, not Howard. Thus, Greenville Hospital likely would have responded to Cromer Food executives truly intent on complying with Title VII because it would have known that its inability to keep Cromer Food employees safe from unlawful harassment would put the very existence of that business relationship in jeopardy. See EEOC Enforcement Guidance on Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Q&A # 8 (1997) (stating, in the analogous context of a staffing firm whose employee is unlawfully harassed at a client's worksite, that a "firm should not assign other workers to that work site unless the client has undertaken the necessary corrective and preventive measures to ensure that the discrimination will not recur"). There are a number of reasonable corrective measures an employer can take to protect its employee from unlawful harassment at a client's worksite: 1) ensuring that the client is aware of the alleged misconduct; 2) asserting the firm's commitment to protect its workers from unlawful harassment and other forms of prohibited discrimination; 3) insisting that prompt investigative and corrective measures be undertaken; and 4) affording the worker an opportunity, if (s)he so desires, to take a different job assignment at the same rate of pay. Id. Cromer Food's corrective efforts fell well short of what the law required. Cromer Food never complained to Greenville Hospital, never asserted to Greenville Hospital its commitment to equal employment, and never insisted that Greenville Hospital investigate and take corrective action. Cromer Food ignored and laughed at Howard's complaints for months and put the onus of the "remedy" entirely on him to try to resolve the situation with Greenville Hospital and then make an untenable choice between termination and a transfer that would have made him far worse off. D. The District Court Erred in Dismissing the EEOC's Retaliation Claim Because a Reasonable Jury Could Find Howard's Forced Transfer Was Materially Adverse, Given the Position's Greater Hours, Lesser Hourly Pay, and Howard's Particular Circumstances. A reasonable jury could find the first-shift transfer was more than just an unreasonable and ineffective response to the harassment - it also could find it was retaliation for Howard's internal complaints and in particular those to Greenville Hospital and the EEOC. For a claim of retaliation to survive summary judgment, there must be sufficient evidence for a reasonable jury to find that (1) the employee engaged in protected activity, (2) the employer took a materially adverse action against the employee, and (3) a causal connection exists between the protected activity and adverse action. E.g., Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). The district court held the first-shift transfer was not a materially adverse action as a matter of law because it did not involve a "'decrease in compensation, job title, level of responsibility, or opportunity for promotion.'" (JA 22 (quoting James v. Booz-Allen & Hamilton, 368 F.3d 371, 376 (4th Cir. 2004))) However, the district court erred by applying an outdated, too-narrow standard for determining whether a materially adverse action occurred, one inconsistent with the two holdings in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). In Burlington Northern, the Supreme Court held (1) that Title VII's retaliation provision is broader than Title VII's substantive provision in that "[t]he scope of the antiretaliation provision extends beyond workplace-related or employment related acts or harm"; and (2) that a materially adverse action in the retaliation context is any action that might dissuade a reasonable person from making or supporting a charge of discrimination. See Burlington, 548 U.S. at 67, 68. This Court has recognized that the Supreme Court rejected its approach to retaliation claims, as set forth in Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001), of applying the same adverse action standard in retaliation cases as applied in substantive discrimination cases. See Scurlock- Ferguson v. City of Durham, 221 Fed. Ap'x 292, 292-93, 2007 WL 806003 (4th Cir. 2007) (recognizing, on remand after being vacated in light of Burlington Northern, that James is inapplicable to a claim of retaliatory transfer because James relied on reasoning of Von Gunten and "[t]he Burlington opinion specifically rejected our approach in Von Gunten"). Thus, the district court's reliance on James v. Booz-Allen & Hamilton, 368 F.3d 371, 376 (4th Cir. 2004), was erroneous because the James Court's formulation of the adverse action standard was in turn based on the now-rejected standard in Von Gunten. Under the proper standard, a reasonable jury could find Howard's forced transfer was materially adverse. The Supreme Court made clear in Burlington Northern that the materiality of a retaliatory adverse action depends on the particular circumstances - i.e., that "[c]ontext matters" - and that materiality must be considered from the perspective of a reasonable person in the plaintiff's position. See Burlington, 548 U.S. at 69-70. For the same reasons a jury could find Howard's transfer was not a reasonable remedy for the harassment - i.e., the greater number of hours, the lower per-hour pay, and the known conflict it created with Howard's responsibility to drive his son to routine and emergency medical appointments - a jury also could find it was materially adverse for retaliation purposes. The district court did not acknowledge that the transfer's interference with Howard's childcare responsibilities is highly analogous to one of the Supreme Court's own examples. Id. at 69 ("A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children."). Nor did the district court address the longer hours and less pay per hour which would have come with the first-shift transfer - thus ignoring the "decrease in compensation" that rendered the transfer materially adverse even under the James standard the district court erroneously applied. Not only could a reasonable jury find the transfer was materially adverse, but it also could find a causal connection between the transfer and Howard's complaints - internally, to Greenville Hospital, and to the EEOC. C.T. Cromer showed animus toward the charge only one day prior to making the transfer decision - "I got this stupid letter from the EEOC" (JA102:20-21) - and had previously expressed animus toward one of Howard's internal complaints - "Do you not realize this could cost me everything?" (JA92:15-17) Such evidence permits a reasonable inference that Howard's complaints caused Cromer Food to take adverse action against him. See Rhoads v. FDIC, 257 F.3d 373, 393-94 (4th Cir. 2001) (holding evidence of decisionmaker's animus toward plaintiff's protected activity, plus short time period between protected activity and adverse action, was sufficient to create a genuine issue of material fact). Given the evidence, a jury should hear the EEOC's retaliation claim. CONCLUSION The district court usurped the role of the jury by granting Cromer Food's motion for summary judgment. The quality and quantity of the EEOC's evidence raised genuine issues of material fact on the EEOC's claims. The EEOC thus respectfully asks the Court to reverse summary judgment and remand the case for trial. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 34(a), the EEOC respectfully requests oral argument given the importance of this appeal to the proper interpretation of Title VII and the EEOC's enforcement efforts. Respectfully submitted, P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8208 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point font. ______________________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF SERVICE I certify that on July 8, 2010, I electronically filed this brief. On July 8, 2010, eight copies of the brief and six copies of the Joint Appendix were sent via UPS to the Clerk of Court, and on that same date two courtesy copies of the brief and the Joint Appendix were sent via UPS to: Sarah Ganss Drawdy The Drawdy Law Firm, LLC 2315 N. Main Street, Suite 117 Anderson, South Carolina 29621 Corrected copies of the brief were filed and served on July 14, 2010. ______________________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov All references to "JA[#]" are to the corresponding page in the parties' Joint Appendix. Mills testified that he has sex with men (JA156:14-19), but McDowell testified that he does not. (JA165:3-12) Although Howard testified that he complained to C.T. Cromer at least twice before their meeting on March 22, 2007, Howard's deposition also contains the following testimony: "Q: Did you ever report your problem to the president of the company? A: No. No, I didn't." (JA119:1-3) Reading Howard's entire testimony consistently and in the light most favorable to the EEOC, this testimony should be read to mean that, prior to March 22, 2007, Howard did not provide C.T. Cromer the details of what Mills and McDowell were doing to him because C.T. Cromer would not allow him to do so. (JA129:21-JA130:2, JA130:13-19) Available at http://www.eeoc.gov/policy/docs/conting.html. Although Cromer Food did not object to the magistrate judge's report and recommendation on causation and appeared to abandon any argument as to this issue, and the district court did not analyze it, we do so here in light of the district court's statement that "the EEOC has failed to establish that the transfer to the first shift was an adverse action and that it was taken in retaliation for Howard filing an EEOC charge." (JA23 (emphasis added)) ii C-2