09-1306-cv ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ MARYANNE DAUER and DEBORA COLE, Plaintiffs, JOAN PUCINO, Plaintiff-Appellant, v. VERIZON COMMUNICATIONS, INC., Defendant-Appellee. ____________________________________________ On Appeal from the U.S. District Court for the Southern District of New York Hon. Paul G. Gardephe, Judge ____________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PUCINO AND IN FAVOR OF REVERSAL ____________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . .ii Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . 10 Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Whether Pucino endured a gender-based hostile work environment is a genuine issue of material fact that should be decided by a jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. A reasonable jury could conclude that Pucino endured a hostile work environment "because of" her sex where her supervisor repeatedly called her a "bitch" and subjected her to harsher treatment than her male coworkers . . . . . . . . . . . . 13 1. Pucino provided abundant evidence of a work environment hostile to her because of her gender . . . . . . . . . . . . 14 2. A work environment may be hostile to a woman because of her gender even if her supervisors have no animus against women in general . . . . . . . . . . . . . . . . . . . . .19 3. The word "bitch" is a gender-laden insult . . . . . . . . . . . . . . 20 4. Facially gender-neutral abuse may contribute to a hostile work environment because of sex . . . . . . . . . . . . . . . . . 23 C. In light of the daily mistreatment that Pucino endured, a reasonable jury could find that she experienced "severe or pervasive" harassment . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Certificate of Compliance Anti-Virus Certification Form Certificate of Service TABLE OF AUTHORITIES Cases Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . .26 Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002) . . . . . . . . . 15, 19, 23 Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 21 Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994) . . . . . . . . . . . . . 13 Bickerstaff v. Vassar Coll., 196 F.3d 435 (2d Cir. 1999) . . . . . . 15-16 Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) . . . . . . . . . . . 13, 22 Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . .27 Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . 13 Connecticut v. Teal, 457 U.S. 440 (1982) . . . . . . . . . . . . . . . 22 Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000) . . . . . . . . . 28 Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . 25 Dillon v. Morano, 497 F.3d 247 (2d Cir. 2007) . . . . . . . . . . . . . . 12 EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . .20, 23 EEOC v. PVNF, LLC, 487 F.3d 790 (10th Cir. 2007) . . . . . . . . . . . . 21 EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008) . . . . . . . . . . 23 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . . . . . . . . . .20, 26 Esquire Trade & Fin., Inc. v. CVQ, Inc., 562 F.3d 516 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 27 Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d 225 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . .17, 21 Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001) . . . . . . . . . . . . . . .23 Hardin v. S.C. Johnson, Inc., 167 F.3d 340 (7th Cir. 1999) . . . . . . . 20 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . 20, 24, 25 Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . .21 Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) . . . . . . . . .23 Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . 26 Mormal v. Costco Wholesale Corp., 364 F.3d 54 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 24-25 Nadel v. Isaksson, 321 F.3d 266 (2d Cir. 2003) . . . . . . . . . . . . 16 Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Ocheltree v. Scollon Prods., 335 F.3d 325 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 23 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) . . . . . . . . . 20 Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001) . . . . . . . 15, 18, 19, 23 Readco, Inc. v. Marine Midland Bank, 81 F.3d 295 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . .13 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 13, 25 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) . . . . . . . . . . 25-26, 28 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) . . . . . . . . . . . . 17, 26 Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 15, 24 Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999) . . . . . . . . . . . . . . .15, 20, 21, 23, 28 Yunkis v. First Student, Inc., 481 F.3d 552 (7th Cir. 2007) . . . . . 20, 21 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous EEOC Enforcement Guidance on Harris v. Forklift Systems, 1994 WL 1747814 (Mar. 8, 1994) . . . . . . . . . . . . . . . . . . . . . 25 EEOC Policy Guidance on Current Issues of Sexual Harassment, 1990 WL 1104701 (Mar. 19, 1990) . . . . . . . . . . . . . . . . . . . . . 24 Yvonne A. Tamayo, "Rhymes with Rich: Power, Law, and the Bitch," 21 St. Thomas L. Rev. 281 (Winter 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21-22 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises an important issue related to Title VII involving the standard by which a jury can find "severe or pervasive" harassment. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. Could a reasonable jury find that Pucino endured a hostile work environment "because of" her sex where her supervisors and virtually all of her coworkers were men, her supervisor repeatedly called her a "bitch" and told her to go kill herself, male coworkers with less seniority repeatedly received tools, trucks, and overtime assignments that should have gone to Pucino, Pucino was required to perform tasks alone that men typically performed in pairs, and Pucino was singled out for intense scrutiny? 2. In light of the daily mistreatment that Pucino endured, could a reasonable jury find that she experienced "severe or pervasive" harassment? STATEMENT OF THE CASE A. Statement of Facts Joan Pucino, a field technician for Verizon, was one of a handful of women in an almost exclusively male environment. (R.34, Ex. 2, Pucino Dep. at 12, 40; R.25, Ex. 24, Pucino Dep. at 41.) She testified that between 1995 and 2002, there were 60-110 field technicians working in Verizon's installation and repair section, of whom only 1-5 were women. Pucino was sometimes the sole woman among scores of men in this section. (R.34, Ex. 2, Pucino Dep. at 40; R.25, Ex. 24, Pucino Dep. at 41.) She gathered with the other field technicians each morning at the Union Avenue Garage, where daily assignments were handed out and field technicians collected necessary trucks and tools. (R.34, Ex. 2, Pucino Dep. at 13, 60; R.25, Ex. 2, Pucino Dep. at 18-19.) She then spent the day traveling within Orange, Ulster, and/or Dutchess Counties, installing and/or repairing telephone lines. (R.43, Pucino Aff. ¶ 3.) Pucino alleges that two of her supervisors– Justin Hinspeter and Kevin Moore – created a hostile work environment based on her gender. (R.43, Pucino Aff. ¶¶ 36, 40.) She testified that "everything I did was criticized." (R.25, Ex. 26, Pucino Dep. at 111.) She added that Hinspeter "would pick on me constantly, calling me ‘stupid,' a ‘bitch,' and would tell me to ‘go fuck [my]self.'"<1> He also told her, "Why don't you go kill yourself?" (R.43, Pucino Aff. ¶ 35; R.34, Ex. 2, Pucino Dep. at 64.) Pucino repeatedly complained to her union about Hinspeter's "harassing behavior." (R.34, Ex. 2, Pucino Dep. at 47; R.43, Pucino Aff. ¶ 68.) Gregory Irwin, the union shop steward, testified that he personally observed Hinspeter's conduct. (R.42, Irwin Aff. ¶ 4.) "Hinspeter singled her out for rougher, longer and more vicious treatment than anyone else," he said. (R.42, Irwin Aff. ¶ 9.) "Hinspeter was openly dismissive of Pucino's work and used words such as ‘just as productive as Joan' as an insult to the male workers. When Pucino asked him something or tried to talk with Hinspeter, he told her to go away or ‘get out of here.'" (R.42, Irwin Aff. ¶¶ 10-11.) Pucino testified that her supervisors repeatedly singled her out for intense scrutiny. (R.43, Pucino Aff. ¶¶ 34, 37.) Although they criticized male field technicians quietly or privately, she testified, they repeatedly called her incompetent in front of her male coworkers. (R.43, Pucino Aff. ¶¶ 31, 34; R.34, Ex. 2, Pucino Dep. at 113.) Pucino testified that Hinspeter directed other foremen to monitor her extra-closely, and she testified that one began showing up at her job sites every day, questioning everything she did and yelling at her that she did not do enough work. (R.43, Pucino Aff. ¶¶ 42-48.) Pucino and two other women testified about the deplorable conditions of the unisex bathrooms in Verizon's various central offices, located throughout the counties where the field technicians worked. (R.43, Pucino Aff. ¶¶ 9-11; R.44, Cole Aff. ¶¶ 3-9; R.45, Dauer Aff. ¶¶ 4-9.) The restrooms often lacked locks on the doors and employees could and did walk in on one another. The bathrooms had urine and feces in the toilets and on the seats. (R.43, Pucino Aff. ¶¶ 9-11.) Pucino testified that her male coworkers routinely used the central office bathrooms but also used public restrooms in the field. (R.43, Pucino Aff. ¶ 6.) Verizon had no rule against using public restrooms (R.43, Pucino Aff. ¶ 5), and there is no evidence that Hinspeter or Moore ever reprimanded a man for using one. Whenever they learned that Pucino had used a public restroom, however, they reprimanded her for being "off the job." (R.43, Pucino Aff. ¶ 8; R.34, Ex. 2, Pucino Dep. at 92-93, 95.) Pucino testified that supervisors were supposed to assign overtime on an equal basis to all field technicians. (R.43, Pucino Aff. ¶ 56.) Nevertheless, when Hinspeter was in charge of assigning overtime, he skipped over Pucino even though she was next on the list. Pucino testified that this happened "at least ten times." (R.43, Pucino Aff. ¶¶ 57-58.) Pucino also testified that her supervisors made her job more difficult by denying her trucks, tools, and privileges that they assigned to men. She testified, for instance, that although field technicians had access to a variety of vans and trucks, "bucket trucks are more desirable because they are safer, easier to use and able to reach higher." (R.43, Pucino Aff. ¶ 16.) Due to the desirability of the bucket trucks, Verizon normally assigned them on the basis of seniority. (R.43, Pucino Aff. ¶ 17.) Pucino testified that her male coworkers "were always given the better trucks according to seniority." (R.34, Ex. 2, Pucino Dep. at 39.) However, she said, in situations when she had more seniority than male coworkers, her supervisors "frequently" or even "most of the time" denied her assignments to bucket trucks despite her seniority to the men who received the trucks in her place. (R.43, Pucino Aff. ¶¶ 18-20; R.34, Ex. 2, Pucino Dep. at 23.) "I always had an old truck," Pucino said. (R.34, Ex. 2, Pucino Dep. at 43.) Likewise, Pucino testified, her supervisors denied her tools "on several occasions," either saying that there were none or simply telling her to go away. (R.43, Pucino Aff. ¶ 22.) "On many occasions," she said, "I watched Hinspeter give a tool to a male coworker that he had just denied to me. . . . The consequence of being denied a tool included making the job harder or even impossible to perform." (R.43, Pucino Aff. ¶¶ 23-24.) She testified, for example, that when Hinspeter denied her a "B tool" (subsequently giving it to a man), she managed to do her job with pliers but only "with a struggle." (R.25, Ex. 26, Pucino Dep. at 110-11.) Although Verizon's practice was to assign field technicians to work in one specific area, so that they would become familiar with it, Pucino testified that Hinspeter "routinely" changed her work area. (R.43, Pucino Aff. ¶¶ 51-53.) When she asked him why he was sending her somewhere new, she testified, Hinspeter simply told her to go away. (R.43, Pucino Aff. ¶ 54.) Pucino testified that Hinspeter and Moore "often" required her to perform tasks alone that her male coworkers handled in pairs. (R.43, Pucino Aff. ¶ 25; R.34, Ex. 2, Pucino Dep. at 43-44.) "That occurred many, many times," she said. "Daily." (R.34, Ex.2, Pucino Dep. at 44, 45, 58.) She noted, for instance, that because of the possibility of pitbulls in backyards in downtown Newburgh, "men were always sent in pairs to work in backyards for their own safety." She, however, was sent on her own. (R.43, Pucino Aff. ¶ 26; R.34, Ex. 2, Pucino Dep. at 45.) Hinspeter and Moore instructed her that she should call one of them – and not the dispatcher -- if she needed help. Male field technicians, in contrast, were permitted to call the dispatcher directly. (R.43, Pucino Aff. ¶¶ 27-28; R.34, Ex. 2, Pucino Dep. at 46.) Pucino testified that when she did call Hinspeter or Moore for help, "they did not send help but showed up themselves to watch me." (R.43, Pucino Aff. ¶ 29.) She added that often, "they would look at the job and laugh and go away." Sometimes, she said, "they would not come at all." (R.34, Ex. 2, Pucino Dep. at 46, 55.) Robert Burton, a male field technician, testified that Hinspeter and Moore both "harass[ed] Pucino when she asked for assistance on jobs that were routinely ‘two man' jobs." (R.41, Burton Aff. ¶ 5.) On occasion, they would deny her assistance on the ground that no one was available to help but would then grant assistance to a man who came up right behind her. (R.34, Ex. 2, Pucino Dep. at 62-63.) Pucino testified that Hinspeter and Moore warned male coworkers not to assist her. (R.34, Ex. 2, Pucino Dep. at 64-65.) She added that "there were a lot of times when the guys [coworkers] would not speak to me." (R.34, Ex. 2, Pucino Dep. at 116.) Burton confirmed that Hinspeter had poisoned the workplace against Pucino, saying that Hinspeter had warned him to stay away from her because Pucino "was ‘trouble' and would get me in trouble." (R.41, Burton Aff. ¶ 10.) Burton testified that after Hinspeter's initial warning, "whenever I had occasion to give or receive assistance on the job from Pucino, Hinspeter would question me closely about it." (R.41, Burton Aff. ¶ 11.) On one occasion, he testified, Hinspeter placed a disciplinary letter in Burton's file because Burton had asked Pucino to help him install a wire across a road – a procedure for which field technicians routinely worked in pairs. (R.41, Burton Aff. ¶¶ 12-13.) Pucino also testified that Hinspeter and Moore publicly blamed her for new restrictions that they imposed on the field technicians. For example, she testified, "it was common practice that during very hot weather, the workers would stop between jobs at a convenience store for a cold drink." (R.43, Pucino Aff. ¶ 38.) When Hinspeter and Moore saw Pucino do this, however, "they first reprimanded me for being ‘off the job' and then announced to my coworkers that because of my misconduct, a new rule prohibiting stopping for a cold drink would now be in effect." (R.43, Pucino Aff. ¶ 39.) Similarly, Pucino testified that after being denied light duty, she complained to her union that Hinspeter had granted light duty to a male field technician. In response to Pucino's complaint, Hinspeter pulled the man off light duty and sent him home. (R.43, Pucino Aff. ¶¶ 59-62.) Pucino's coworkers blamed her for this result and accused her of "throwing [the male field technician] under the bus." (R.43, Pucino Aff. ¶ 63.) In late 1998, Pucino complained to Verizon's equal employment opportunity hotline about gender discrimination. (R.43, Pucino Aff. ¶ 64.) Moore stood up in front of all the field technicians and told them that Pucino "had called the EEO." (R.25, Ex. 41, Pucino Dep. at 98, 102.) He further told them that because of Pucino's complaint, the men "would now have to watch what they said and did." (R.43, Pucino Aff. ¶ 65.) Moore warned, "They are going to come into our garage, take over our garage. Every word is going to be scrutinized. You are going to be followed, and the garage will never be the same." (R.41, Pucino Dep. at 98.) Approximately two days later, Pucino arrive at work to discover that someone had placed a dead snake in her locked truck. (R.43, Pucino Aff. ¶ 66; R.34, Ex. 2, Pucino Dep. at 13-14.) She testified that she was "extremely fearful of snakes," and that her coworkers all knew this about her. (R.43, Pucino Aff. ¶ 66.) On July 8, 2003, Pucino and two other women filed suit against Verizon, alleging gender discrimination in violation of Title VII. (R.1, Complaint.) Verizon moved for summary judgment. (R.24, Motion.) The district court granted summary judgment against one plaintiff on January 26, 2009, and against Pucino and the other plaintiff on March 17, 2009. (R.81, Order; R.84, Order.) Only Pucino has appealed. B. District Court Decision The district court rejected Pucino's hostile work environment claim for two reasons. First, it held that Pucino had not offered sufficient evidence for a jury to conclude that her supervisors treated her as they did "because of her sex." (R.84, Slip Op. at 62-65.) Second, it held that she had not offered sufficient evidence for a jury to conclude that her work environment undermined her ability to perform her job. (Id. at 62, 66-67.) With respect to whether the challenged conduct occurred "because of her sex," the district court observed, "Pucino's allegations that she was treated less favorably then male co-workers are entirely conclusory and lack the ‘concrete particulars' that would permit a jury to find that she was treated differently from male employees who were ‘similarly situated in all material respects.'" (Id. at 63 (citations omitted).) "[T]here is no evidence of gender-based animus," the court said, "other than the fact that Hinspeter allegedly called Pucino a ‘bitch' and also used gender-neutral insults." (Id. at 64.) The word "bitch," the court said, "is not necessarily ‘an indication of a general misogynist attitude' and is not ‘particularly probative of gender discrimination' when the evidence is that it was ‘directed toward only one woman, rather than women in general,' as is the case here." (Id. at 63 (citations omitted).) The court concluded that based on the evidence presented, "there is no rational basis for a jury to infer that Hinspeter's conduct toward Pucino was motivated by gender-based animus rather than personal dislike of Pucino." (Id. at 64-65.) The district court also held that because Pucino could not show that the complained-of conduct undermined her ability to perform her job, she could not show that the conduct was severe or pervasive enough to create a hostile work environment. (Id. at 65-67.) "Pucino has not offered evidence," the court said, "showing that [the conduct] interfered with her work performance at all." (Id. at 66.) While acknowledging that "employers are not ‘free from liability in all but the most egregious of cases,'" (id. (citation omitted)), the court held that "Pucino must still demonstrate that the complained of conduct undermined her ability to do her job. Based on this record, no rational jury could make such a finding." (Id. at 67.) SUMMARY OF ARGUMENT The district court misapplied the law when assessing whether Pucino could prove that she had been subjected to a hostile work environment because of her gender. Had the court applied the law correctly, it would have recognized that Pucino presented more than enough evidence from which a reasonable jury could find in her favor. The lone woman in an overwhelmingly male workplace, Pucino endured far harsher treatment from her male supervisors than her male coworkers did. One supervisor repeatedly called her a bitch and told her to "go fuck [herself]" and to kill herself. Viewing all of the evidence in the light most favorable to Pucino, a reasonable jury could infer that Pucino would not have been treated this way if she were a man. Because the conduct about which she complains occurred daily throughout her tenure at Verizon, a reasonable jury could also conclude that the hostility was pervasive enough to constitute legally actionable harassment in violation of Title VII. ARGUMENT Whether Pucino endured a gender-based hostile work environment is a genuine issue of material fact that should be decided by a jury. A. Standard of Review In reviewing an award of summary judgment, this Court examines the record de novo, viewing all of the evidence in the light most favorable to the non-moving party and making all reasonable inferences in the non-movant's favor. Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007). "In ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented." Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007) (quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996)). Courts should use summary judgment sparingly in discrimination cases because juries have "special advantages" over judges in assessing individuals' motivations and state of mind. Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006) ("hostile work environment claims present ‘mixed question[s] of law and fact' that are ‘especially well-suited for jury determination'") (citations omitted); Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (whether harassment is sufficiently severe or pervasive to alter the victim's working conditions is "quintessentially a question of fact"). B. A reasonable jury could conclude that Pucino endured a hostile work environment "because of" her sex where her supervisor repeatedly called her a "bitch" and subjected her to harsher treatment than her male coworkers. The district court committed numerous errors in concluding that Pucino could not establish that her work environment was hostile "because of" her sex. Pucino testified that her male supervisor in a virtually all-male workplace repeatedly called her a "bitch" and told her to go kill herself, and subjected her to harsher treatment than men received. (R.43, Pucino Aff. ¶¶ 34-35; R.34, Ex. 2, Pucino Dep. at 64.) She described incidents in which male coworkers with less seniority than she received trucks, tools, and overtime assignments that should have gone to her. (R.43, Pucino Aff. ¶¶ 16-24, 56-58.) She also testified that she was required to perform tasks alone that men did in pairs and that her requests for help were rejected while men's were accommodated. (R.43, Pucino Aff. ¶¶ 25-30; R.34, Ex. 2, Pucino Dep. at 44, 45, 58.) Had the court evaluated the evidence under the correct legal standards, it would have found a genuine issue of material fact that should have been decided by a jury. 1. Pucino provided abundant evidence of a work environment hostile to her because of her gender. Pucino introduced evidence that, overall, she was singled out for much harsher treatment than her male coworkers. Significantly, the district court granted summary judgment on Pucino's disparate treatment claim because she could not show an adverse employment action, not because she had no evidence of gender discrimination. (R.84, Slip Op. at 47.) Whether or not the district court was right that none of Pucino's allegations, standing alone, would constitute an adverse employment action, a jury could certainly find that the cumulative effect of the conduct she alleged was that overall Pucino was treated worse than her male peers. For a hostile environment claim, what matters is not the details of each individual allegation, but the combined effect of all of them – the "totality of the circumstances." Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). Incidents that may seem trivial in isolation can take on a different meaning when viewed in the aggregate. The Sixth Circuit has cautioned that "the issue is not whether each incident of harassment standing alone is sufficient to sustain the cause of action in a hostile environment case, but whether – taken together – the reported incidents make out such a case." Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999) (emphasis in original); see also Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) ("we reject [defendant's] argument that evidence excluded as insufficient to support an inference of disparate treatment must necessarily be excluded from consideration of a hostile work environment claim"). In evaluating Pucino's evidence of hostile treatment, the district court committed legal error by mischaracterizing her testimony as "entirely conclusory" and "lack[ing in] ‘concrete particulars.'" (R.84, Slip Op. at 63 (citing Bickerstaff v. Vassar Coll., 196 F.3d 435, 451-52 (2d Cir. 1999).) Notwithstanding the district court's dismissive view, Pucino testified that she was picked on and singled out for scrutiny more than men, reprimanded more harshly than men, cursed at more frequently and abusively than men, repeatedly passed over on the seniority list although men were not, frequently denied trucks and tools that were given to men who came up behind her, required to perform tasks alone that men handled in pairs, and denied assistance when she asked for it although men's requests were granted. (R.43, Pucino Aff. ¶¶ 18-31, 34-39, 45-48, 51-58.) Her testimony compares favorably to the affidavit that this Court criticized in Bickerstaff for containing only opinions and not "a single act, statement, or admission" to support the allegation of race discrimination. 196 F.3d at 451-52. The district court observed that Pucino had identified only one specific incident when she was treated worse than a male coworker by being denied a tool. (R.84, Slip Op. at 63.) Since she testified to repeated instances of such treatment, the court's point is apparently that she did not always give the date of the incident or identify the male coworker who received better treatment. Such concerns go to the weight and credibility of her evidence and are for a jury to weigh, not for a court to dismiss on summary judgment. Nadel v. Isaksson, 321 F.3d 266, 271-72 (2d Cir. 2003). "If a jury were to credit [plaintiff's] general allegations of constant abuse, which were confirmed by her coworkers, it could reasonably find pervasive harassment, even in the absence of specific details about each incident." Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997). This is especially true in this case in light of the corroborating testimony of a male coworker that "Hinspeter singled her out for rougher, longer and more vicious treatment than anyone else." (R.42, Irwin Aff. ¶ 9.) Hinspeter also repeatedly called Pucino a "bitch" (R.43, Pucino Aff. ¶ 35) – a word that is a "sexually degrading, gender-specific epithet." See Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d 225, 229 (1st Cir. 2007). Hinspeter's use of this word, coupled with his "more vicious treatment" of the lone woman among multitudes of male field technicians, is enough to permit (but not require) a jury to find that Pucino experienced a hostile work environment "because of" her sex. In determining whether Pucino experienced a hostile work environment "because of" her sex, a reasonable jury looking at the totality of the circumstances could consider the fact that Pucino had penetrated the ranks of an almost exclusively male environment. The district court ignored this fact in holding that Pucino had not raised a jury question on whether her environment was hostile "because of" her sex. (R.84, Slip Op. at 63-65.) Far from being irrelevant, as the district court seemed to believe, the fact that Pucino was one of only a few women in an overwhelmingly male workplace is critical to understanding her evidence. As this Court has noted, "‘a woman, entering a work environment that previously has been all-male, might encounter severe, sustained hostile treatment by her male supervisors and/or co-workers.'" Raniola, 243 F.3d at 617 (citation omitted); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (juries must use "common sense[ ] and an appropriate sensitivity to social context"). Hinspeter's dismissive view of Pucino's work and manner of insulting her male coworkers by saying they were "just as productive as Joan" reflects this type of hostile reception. (R.42, Irwin Aff. ¶¶ 10-11.) The same is true of Hinspeter's warnings to male employees not to assist her (R.34, Ex. 2, Pucino Dep. at 64-65; R.41, Burton Aff. ¶¶10-13), Moore's warning to all the technicians that Pucino's EEO complaint would lead to increased scrutiny so "the garage will never be the same again" (R.25, Ex. 41, Pucino Dep. at 98), and both supervisors' changing of work rules and publicly blaming the new adversity on Pucino. (R.43, Pucino Aff. ¶¶ 38-39, 59-63.) Hinspeter's and Moore's supervision of Pucino demonstrates the type of "sustained hostile treatment" that this Court has recognized women might experience when they enter previously all-male environments. Raniola, 243 F.3d at 617. Significantly, Verizon has neither denied that Pucino was treated differently from her male coworkers nor offered any explanation for the different treatment, merely categorizing her allegations as "inconveniences and disagreements." (R.25, Memo at 19.) "Defendant's failure to provide a non-discriminatory reason for the harms alleged may add to the evidence that abuse was motivated by discrimination." Raniola, 243 F.3d at 623 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.").) 2. A work environment may be hostile to a woman because of her gender even if her supervisors have no animus against women in general. The district court missed the mark in stating that "there is no evidence of gender-based animus other than the fact that Hinspeter allegedly called Pucino a ‘bitch' and also used gender-neutral insults." (R.84, Slip Op. at 64.) Title VII does not require gender-based animus; it requires only that a plaintiff prove a "linkage or correlation to the claimed ground of discrimination." Alfano, 294 F.3d at 377. "Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive under the Harris [v. Forklift Systems, Inc., 510 U.S. 17 (1993)] standard, constitute a hostile environment in violation of Title VII." Williams, 187 F.3d at 565 (emphasis in original). Similarly, the law does not require, as the district court believed, that a plaintiff must prove "a general misogynist attitude." (R.84, Slip Op. at 64.) Rather, the law "is aimed at the consequences or effects of an employment practice and not at the . . . motivation." Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991). Harassment may violate Title VII if it has either a discriminatory purpose or a discriminatory character. EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 844-45 (9th Cir. 2005); Petrosino v. Bell Atlantic, 385 F.3d 210, 223-24 (2d Cir. 2004); Hardin v. S.C. Johnson, Inc., 167 F.3d 340, 345 (7th Cir. 1999). As the Seventh Circuit has explained, "A working environment may be deeply hurtful to women even though the men who created it were merely trying to please themselves, and were thus guilty of insensitivity rather than aggression." Yunkis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007). 3. The word "bitch" is a gender-laden insult. A female employee whose male supervisor constantly calls her a "bitch" may very well find herself in a "deeply hurtful" working environment because of her gender, whatever the motivation of the supervisor who chooses to use this word. See Yunkis, 481 F.3d at 554. Even if the supervisor is motivated by personal dislike of the employee rather than by gender animus, his use of such a gender-laden epithet can still adversely affect a female employee "because of" sex.<2> Certainly, a reasonable jury could find that a supervisor's repeated and targeted use of the word "bitch" is "humiliating and fundamentally offensive to any woman in that work environment." See Williams, 187 F.3d at 563 (discussing other gender-specific epithets). Courts have increasingly recognized that the word "bitch" is an "intensely degrading" sexual epithet, EEOC v. PVNF, LLC, 487 F.3d 790, 798-99 (10th Cir. 2007); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 732 (8th Cir. 2000), and that the word is more degrading to women than to men. Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1302 (11th Cir. 2007); Forrest, 511 F.3d at 229. As one legal commentator has explained, the word "bitch" "remains an unequivocal expression of hostility used to denounce, harass, and insult women who, by acting outside of their prescribed gender roles, threaten the established paradigm of power as an inherently male characteristic." Yvonne A. Tamayo, "Rhymes with Rich: Power, Law, and the Bitch," 21 St. Thomas L. Rev. 281, 281-82 (Winter 2009). The district court was wrong that the word "bitch" is less probative of gender discrimination when directed to one woman in particular than when used about women in general. (R.84, Slip Op. at 64.) The term expresses a hostile attitude toward women whether directed at one or many women. In an environment where Pucino was the sole woman, it is particularly inappropriate to suggest her proof is lacking because she had no evidence of treatment of other women. In any event, even if other women in the workplace were not harassed, that would not defeat her claim because "the principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole." Connecticut v. Teal, 457 U.S. 440, 453-54 (1982). As this Court has noted, "whether an employer discriminates against only a subset of a protected class, or discriminates inconsistently, Title VII nevertheless protects any individual so long as that individual is mistreated because of her sex." Brown, 257 F.3d at 252-53. 4. Facially gender-neutral abuse may contribute to a hostile work environment because of sex. Because Hinspeter, who repeatedly called Pucino a "bitch," was behind most of Pucino's adverse treatment, a jury could find that even facially sex-neutral abuse carried an "earmark of bias." Alfano, 294 F.3d at 377; see Raniola, 243 F.3d at 621-22 (sex-based verbal abuse may indicate that other adverse treatment was also "because of" sex); Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001) (same); Howley v. Town of Stratford, 217 F.3d 141, 155-56 (2d Cir. 2000) (same); Williams, 187 F.3d at 560-64 (same); see also EEOC v. Sunbelt Rentals, 521 F.3d 306, 317-18 (4th Cir. 2008) (jury could find coworker harassment lacking religious content, including unplugging individual's computer and hiding his time card, was based on religious animus where same coworkers perpetrated explicitly religious harassment). Behavior need not reference gender at all in order to violate Title VII. See Nat'l Educ. Ass'n, Alaska, 422 F.3d at 842 ("offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees"); Ocheltree v. Scollon Prods., 335 F.3d 325, 331 (4th Cir. 2003) ("A woman may prove sex-based discrimination in the workplace even though she is not subjected to sexual advances or propositions."); EEOC Policy Guidance on Current Issues of Sexual Harassment § C(4), 1990 WL 1104701, at *11 (Mar. 19, 1990) ("harassment not involving sexual activity or language [ ] may also give rise to Title VII liability if it is sufficiently patterned or pervasive and directed at employees because of their sex"). C. In light of the daily mistreatment that Pucino endured, a reasonable jury could find that she experienced "severe or pervasive" harassment. The district court erred in holding that the complained-of conduct was not "severe or pervasive" enough to create a hostile work environment. Title VII is violated when sexual harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted); see also Whidbee, 223 F.3d at 70 (question is "whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse"). The test for a hostile work environment has both a subjective and an objective component. Mormal v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004). Factors for a jury to consider in deciding whether a work environment is objectively hostile include: (1) frequency of the conduct, (2) severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's work performance. Id. (citing Harris, 510 U.S. at 23). Contrary to the district court's apparent understanding, (R.84, Slip Op. at 66-67), the fourth factor of this test – whether the conduct unreasonably interferes with the employee's work performance – does not require that an employee be rendered incapable of working. Schiano, 445 F.3d at 606-07; EEOC Enforcement Guidance on Harris v. Forklift Systems, 1994 WL 1747814, at *7 n.2 (Mar. 8, 1994). Title VII prohibits employers from imposing a discriminatorily hostile work environment even when the target of the hostility manages to perform her job successfully. The Supreme Court has explained that gender-based discriminatory conduct sufficient to "create a work environment abusive to employees because of their . . . gender . . . offends Title VII's broad rule of workplace equality." Harris, 510 U.S. at 22. For this reason, "the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Id. at 24 (Scalia, J., concurring); see also Dawson v. County of Westchester, 373 F.3d 265, 274 (2d Cir. 2004) (crucial question is whether environment "compromis[ed women's] status as equals to men in the workplace"); Terry v. Ashcroft, 336 F.3d 128, 149 (2d Cir. 2003) ("Defendants' suggestion that a hostile work environment claim cannot stand where a plaintiff is still able to successfully perform the basic functions of his or her job is without merit. The question, rather, is whether the conditions under which those tasks must be performed have been altered for the worse.") (citation omitted); Torres, 116 F.3d at 631 ("The fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases."). An employer illegally alters working conditions in violation of Title VII when gender-based harassment "‘is either so severe or so pervasive as to alter the working conditions of a reasonable employee.'" Terry, 336 F.3d at 149 (citation omitted) (emphasis in original); see also Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (establishing "severe or pervasive" standard). The more pervasive the harassment, the less severe each incident must be in order to establish liability. Ellison, 924 F.2d at 878; Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998). A plaintiff may prove a hostile work environment by showing, as here, that her employer "made [her] work environment unusually and unnecessarily unpleasant on a nearly daily basis." Terry, 336 F.3d at 149. As the Seventh Circuit explained in addressing a case alleging daily harassment, "If because she was a woman [the defendant] had turned down the heat at her work station in order to make her uncomfortable, that would be actionable sex discrimination, even if the discomfort was too mild to be described as ‘suffering.'" Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1011 (7th Cir. 1994). In the instant case, Pucino has described daily mistreatment that a jury could reasonably attribute to her gender. Contrary to its obligation to view all evidence in the light most favorable to Pucino, Esquire Trade & Fin., Inc. v. CVQ, Inc., 562 F.3d 516, 519 (2d Cir. 2009), the district court failed to credit Pucino's testimony that her supervisors "constantly" picked on her (R.43, Pucino Aff. ¶ 35); "repeatedly" singled her out for intense scrutiny (R.43, Pucino Aff. ¶¶ 34, 37); "frequently" or "most of the time" denied her assignments to bucket trucks although she had more seniority than the men who received the trucks in her place (R.43, Pucino Aff. ¶¶ 18- 20; R.34, Ex. 2, Pucino Dep. at 23); "on many occasions" denied her tools and then gave the tools to men (R.43, Pucino Aff. ¶¶ 23-24); "routinely" changed her work area in violation of Verizon's standard practice (R.43, Pucino Aff. ¶¶ 51-53); "daily" required her to perform tasks alone that her male coworkers handled in pairs (R.34, Ex. 2, Pucino Dep. at 44, 45, 58); and "often" laughed at her and went away when she requested help. (R.34, Ex. 2, Pucino Dep. at 46, 55.) Nor did the court credit Pucino's testimony that Hinspeter warned the male field technicians not to help her and that "a lot of times" the men would not even speak to her. (R.34, Ex. 2, Pucino Dep. at 64-65, 116.) As in Terry v. Ashcroft, Pucino "is not complaining merely about sporadic and isolated events, but rather about [her] daily working conditions." 336 F.3d at 149. Her allegations describe a pervasive pattern of conduct sufficient to render her work environment abusive. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (plaintiff must demonstrate "either that a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted' to have altered the conditions of her working environment") (citation omitted). CONCLUSION Pucino has introduced enough circumstantial evidence for a reasonable jury to find that she endured a hostile work environment "because of" her sex. As the Sixth Circuit held in Williams v. General Motors Corp., "the myriad instances in which [plaintiff] was ostracized, when others were not, combined with the gender-specific epithets used . . . create an inference, sufficient to survive summary judgment, that her gender was the motivating impulse for her co-workers' behavior." 187 F.3d at 565- 66. For the foregoing reasons, the EEOC respectfully requests that this Court reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, and Rule 32(a) of the Second Circuit Rule, I certify that this brief was prepared with Microsoft Office Word 2003 and that it uses Times New Roman type, size 14 point. I further certify that this brief contains 6,324 words, from the Statement of Interest through the Conclusion and signature block, as determined by the Microsoft Office Word 2003 word- count function. ____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.go ANTI-VIRUS CERTIFICATION FORM (Second Circuit Local Rule 32(a)(1)(E)) CASE NAME: Pucino v. Verizon Communications, Inc. DOCKET NUMBER: 09-1306 I, Gail S. Coleman, certify that I have scanned for viruses the PDF version of the Amicus Brief that was submitted in this case as an email attachment to briefs@ca2.uscourts.gov and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 10.1.6.6000, Version 6/16/2009 rev. 4. _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, hereby certify that I filed one original and nine copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this ______ day of _________, 2009. I also certify that I submitted the amicus brief in PDF format as an e-mail attachment to civilcases@ca2.uscourts.gov, and that I e-mailed a copy of the PDF version to all parties. I further certify that I served two paper copies of the foregoing amicus brief this ______ day of ____________, 2009, by first-class mail, postage pre-paid, to the following counsel of record: Stephen Bergstein Carla R. Walworth Bergstein & Ulrich, LLP Christopher Reilly 15 Railroad Ave. Paul, Hastings, Janofsky & Walker, LLP Chester, NY 10918 75 East 55th St. New York, NY 10022 _________________________ CAROLYN L. WHEELER Assistant General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5NW20S Washington, DC 20507 *********************************************************************** <> <1> On one occasion, Pucino used this latter phrase against Hinspeter and he suspended her. Pucino testified that she felt justified using this language to her supervisor because Hinspeter "had said that to me on many occasions." (R.34 Ex. 2, Pucino Dep. at 118; R.25, Ex. 8, Pucino Dep. at 119.) <2> Although the district court speculated that Hinspeter may have been motivated by personal dislike of Pucino (R.84, Slip Op. at 65), Verizon did not make this argument.