No. 10-30767 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________________________ MILAN DEDIOL, Plaintiff-Appellant, v. BEST CHEVROLET, Defendant-Appellee. ________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana Hon. Helen G. Berrigan, Judge ________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF DEDIOL AND FOR REVERSAL _________________________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M Street, NE, Room 5SW24L Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 CAROLYN L. WHEELER gail.coleman@eeoc.gov Assistant General Counsel GAIL S. COLEMAN Attorney TABLE OF CONTENTS Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 6 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The district court's opinion reflects a misunderstanding of what constitutes an actionable hostile work environment under federal anti-discrimination laws. . . . . . . . . . . . . . . . . . 8 1. The district court misstated and/or misapplied the relevant legal standards. . . . . . . . . . . . . . . . . . . . . . . . 9 2. The district court usurped the jury's role as factfinder. . . . . . 15 B. The district court did not consider the extent of the hostility in Dediol's work environment when assessing whether a reasonable employee in Dediol's position would have felt compelled to resign. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002). . . . . . . . . . . . 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . 15 Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473 (5th Cir. 2008). . . 17, 20 Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292 (5th Cir. 1994). . . . . . 17 Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir. 2007). . . . . .18 Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th Cir. 2001). . . . . . . . . 16 Collazo v. Nicholson, 535 F.3d 41 (1st Cir. 2008). . . . . . . . . . . . 9 Crawford v. Medina Gen. Hosp., 96 F.3d 830 (6th Cir. 1996). . . . . . . . 9 EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007). . . . . 12, 13, 14 El-Hakem v. BJY Inc., 415 F.3d 1068 (9th Cir. 2001). . . . . . . . . . . .12 Faragher v. City of Boca Raton, 524 U.S. 557 (1998). . . . . . . . . . . .20 Farpella-Crosby v. Horizon Health Ctr., 97 F.3d 803 (5th Cir. 1996). .13, 19 Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001). . . . . . . . . 9 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . 9-11, 13, 14 Harvill v. Westward Comms., LLC, 433 F.3d 428 (5th Cir. 2005). . . . . . 11 Hockman v. Westward Comms., 407 F.3d 317 (5th Cir. 2004). . . . . . . . . 11 Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir. 1992). . . . . . 17-18 Lauderdale v. Tex. Dep't of Crim. Justice, Institutional Div., 512 F.3d 157 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 17 Meritor Savs. Bank v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . 9 Penn. State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . .16, 17, 20 Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871 (5th Cir. 1999). . 11 Waltman v. Int'l Paper, 875 F.2d 468 (5th Cir. 1989). . . . . . . . . . . 11 Ward v. Bechtel Corp., 102 F.3d 199 (5th Cir. 1997). . . . . . . . . . . .17 Weller v. Citation Oil & Gas Corp., 84 F.3d 191 (5th Cir. 1996). . . . . .11 Whitten v. Fred's, Inc., 601 F.3d 231 (4th Cir. 2010). . . . . . . . . 20 Williams v. Admin. Review Bd., 376 F.3d 471 (5th Cir. 2004). . . . . . 16 Statutes Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. . . . . . 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . 1 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Other Authorities EEOC Enforcement Guidance on Harris v. Forklift Sys., 1994 WL 1747814 (Mar. 8, 1994). . . . . . . . . . . . . . . . . . . . . 9 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal anti-discrimination statutes. The district court opinion misstates the standards for finding an actionable hostile work environment under the federal anti-discrimination laws. The EEOC has a strong interest in correcting the district court's mistakes and in urging this Court not to adopt the district court's erroneous interpretations. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. Did the district court erroneously grant summary judgment on Dediol's hostile work environment claim because it misunderstood the nature of such a claim? 2. Did the district court erroneously grant summary judgment on Dediol's constructive discharge claim because it did not consider the extent of the hostility in Dediol's work environment? STATEMENT OF THE CASE This is an appeal from the district court's award of summary judgment to Best Chevrolet. A. Statement of Facts Milan Dediol, a 65 year old, born again Christian, was a used car salesman for Best Chevrolet from June 1, 2007, through August 30, 2007. (R.19-2, Def's Statement of Undisputed Facts ¶¶ 1-3.) He was directly supervised by used car manager Donald Clay, who was in his late 30s. (R.5, Answer at 2; R.20-1, Dediol Decl. ¶ 38.) Shortly after beginning to work for Best Chevrolet, Dediol became homeless and began to live in his car. (R.20-1, Dediol Decl. ¶ 37.) Several of his coworkers loaned him money and provided other forms of assistance. (R.19-5, Dediol Dep. Vol. 2 at 95; R. 19-6, Answers to Best & Clay Interrog. ¶ 24.) Clay, however, added to Dediol's stress. Dediol alleges that beginning on July 3rd, when he sought permission to come in late the following day in order to participate in a church event, Clay engaged in a relentless campaign of age- and religion-based harassment. (R.20-1 Dediol Decl. ¶¶ 40, 46.) In front of other employees, Clay told Dediol on July 3rd, "You old motherfucker, you are not going tomorrow." (R.19-4, Dediol Dep. Vol. 1 at 61.) When Dediol said that another manager had already approved his request, Clay said, "If you go over there, I'm going to fire your fucking ass." (Id.) Dediol reported to work the next morning but none of his coworkers arrived until several hours later. (Id.) From that day on, Clay never referred to Dediol by name. (R.19-6 at 7, Answers to Clay Interrog. ¶ 3; R.20-1, Dediol Decl. ¶ 40.) Instead, at least six times daily, Clay called Dediol "old scum," "old motherfucker," "old man," and "pops." (R.19-5, Dediol Dep. Vol. 2 at 25; R.19-6 at 7, Answers to Clay Interrog. ¶ 3.) He repeatedly told Dediol, "Get out of the office, you old motherfucker." (R.20-1, Dediol Decl. ¶ 56.) Approximately twelve times over those two months, Clay also disparaged Dediol's religion. (Id. ¶ 46; R.19-6, Answers to Best & Clay Interrog. 16.) "Do you see these shoes?" he said once to Dediol. "Your God did not buy me these shoes. I bought these shoes." (R.19-4, Dediol Dep. Vol. 1 at 61.) He also told Dediol that "God would not put food on [his] plate." (R.20-1, Dediol Decl. ¶ 46.) When Clay found Dediol reading the Bible during a break, he ordered him to "get your old fucking ass outside." (Id. at ¶ 47.) He ignored the other salespeople who were reading magazines at the same time. (Id.) Several times, Clay threatened to fire Dediol and told him to "go to his God and see if He would save [Dediol's] job." (Id. ¶ 46; R.19-4, Dediol Dep. Vol. 1 at 62.) In addition to this verbal abuse, every day Clay tried to provoke a fight and threatened to "kick [Dediol] in the ass." (R.19-7, Responses to Best ¶ 7; R.20-1, Dediol Decl. ¶ 40.) On one occasion, he pulled off his shirt and told Dediol, "You do not know who you are talking to. See these scars. I was shot and was in jail." (R.20-1, Dediol Decl. ¶ 38.) Almost all of Clay's harassment occurred in full view of other employees and managers. (R.19-6, Answers to Best & Clay Interrog. ¶¶ 21, 23.) Dediol perceived that the other managers were powerless to stop Clay. (R.20-1, Dediol Decl. ¶¶ 48, 53.) In late July, Dediol complained to acting general manager John Oliver, who agreed to let Dediol transfer to the new car division. (R.19-4, Dediol Dep. Vol. 1 at 49; R.20-1, Dediol Decl. ¶ 43.) Clay, however, intervened. When Dediol reported to the new car division, Clay told him, "Get your old fucking ass over here. You are not going to work with the new cars." (R.20-1, Dediol Decl. ¶ 43.) Oliver then told Dediol that he could sell new cars but that he would have to remain stationed at the used car department. (Id.) Dediol went back to Oliver "frequently" about this. (R.19-6, Answers to Best & Clay Interrog. ¶ 21.) Clay also directly interfered with Dediol's work. Dediol testified that Clay "stole a couple of deals from me" and gave them to younger salespeople. (R.19-5, Dediol Dep. Vol. 2 at 123.) While Dediol acknowledged that it was not uncommon for car dealers to send in a second salesperson if the first one could not close a sale, he said that Dediol unnecessarily pulled him from a successful negotiation. (Id. at 123-25.) "This is very unprofessional . . . and you cannot make a living like that," he testified. (Id. at 125.) On August 29th, at a morning meeting in front of everyone, Clay once again threatened to beat Dediol up. (R.19-6 at 7, Answers to Clay Interrog. ¶ 5; R.19-5, Dediol Dep. Vol. 2 at 17.) "Why don't you fire me then?" Dediol said. Clay told him, "I can fire everybody and in the law of Louisiana I don't have to give you a reason." (R.19-4, Dediol Dep. Vol. 1 at 62; R.19-5, Dediol Dep. Vol. 2 at 20.) He added, "You can go to your fucking God and see if He can save your job." (R.19- 4, Dediol Dep. Vol. 1 at 62.) All of a sudden, Clay said, "I am going to beat the fuck out of you," and then he ran towards Dediol with his arms raised as if to hit him. (R.19-5, Dediol Dep. at 20; R.20-1, Dediol Decl. ¶¶ 48, 50.) Two salesmen stepped between Clay and Dediol, and Clay turned around. (R.19-4, Dediol Dep. Vol. 1 at 36.) Dediol remained at work for the rest of the day but stayed in a different building on the new car side, avoiding the used car department. (Id.) No one took any action against Clay. (R.19-6, Answers to Best & Clay Interrog. ¶ 23; R.19-7, Responses to Best ¶ 3; R.20-1, Dediol Decl. ¶ 50, 52.) "Even after all of this," Dediol testified, "I was still assigned to the used car department." (R.20-1, Dediol Decl. ¶ 50.) He added, "If I saw Clay walk toward me I walked away. I remained afraid of him." (Id. ¶¶ 52.) The day following the assault, Dediol quit. (Id. ¶¶ 52, 53.) He did not pick up his final check because he would have had to walk into Clay's office to do so. (Id. ¶ 52.) B. District Court Decision The district court granted summary judgment to Best Chevrolet on Dediol's claims that he had endured a hostile work environment based on his age and religion. Noting that the Fifth Circuit has not expressly decided whether hostile work environment claims are actionable under the ADEA, the court assumed without deciding that they are. (R.40, Slip Op. at 6 n.3.) The court acknowledged that "in the same manner that a single incident of harassment, if sufficiently severe, could give rise to a viable hostile work environment claim[,] a 'continuous pattern of much less severe incidents of harassment' can create an actionable claim." (Id. at 8.) Notwithstanding this observation, the court ruled that even though Clay's age-based comments were pervasive, "a jury could not reasonably find that Clay's remarks rise to the requisite level of severity." (Id. at 7-8.) Describing Clay's threats of violence, the court said, "Dediol fails to provide sufficient evidence that Clay's outbursts were motivated by age-related animus." (Id. at 9.) Dediol also failed, the court said, to demonstrate "sufficient impact on [his] work performance to rise to the level of an actionable employment claim." (Id.) Finally, the court held that Dediol's age harassment claim must fail because he did not show any "adverse employment action." (Id. at 10-11.) The district court likewise rejected Dediol's claim of religious harassment for lack of an "adverse employment action." (Id. at 14-15.) The court noted that Best Chevrolet was not obligated to make a religious accommodation for the July 4th holiday. (Id. at 14.) It also speculated that Dediol's "relative newcomer status" and not discrimination explained why he was required to report to work on July 4th earlier than his coworkers. (Id. at 15.) "Because Dediol cannot link religious animus to any particular adverse employment decision," the court said, "Clay's religious comments are just stray remarks." (Id.) Finally, the district court held that, even if Dediol had been able to prove religious harassment, he still could not prove constructive discharge. (Id. at 16- 17.) To make his case, the court said, he would have to show that Clay's harassment was "calculated to encourage the employee's resignation." (Id. at 17.) "When asked if Clay was trying to force Dediol to quit or to retire early," the court said, "Dediol responded, 'I don't know,' ' I don't think' and 'I have no idea' respectively." (Id.) Moreover, the court said, "Dediol's denial of transfer to the new car department does not create an actionable claim because 'constructive discharge cannot be based upon the employee's subjective preference for one position over another.'" (Id.) Finally, the court said, "Dediol's failure to exhaust Best Chevrolet's internal grievance procedures suggests that his work environment was not so intolerable as would compel a reasonable person to resign." (Id. at 17- 18.) Characterizing Clay's behavior as "uncivil and at times bellicose," the court concluded that "Dediol's dislike of one particular manager is not sufficient grounds to support a claim of constructive discharge." (Id. at 18-19.) Summary of Argument The district court granted summary judgment in this case only because it misunderstood the nature of a hostile environment claim. Dediol's supervisor hurled offensive epithets at him and threatened to beat him up daily because of Dediol's age and religion. The district court acknowledged that the hostility was pervasive. Contrary to the district court's understanding, the evidence was sufficient to permit a jury to find that Dediol endured an actionable hostile work environment. A jury could also find that, after the supervisor's attempted assault, a reasonable person in Dediol's position would have felt compelled to resign. For these reasons, the award of summary judgment should be reversed. Argument A. The district court's opinion reflects a misunderstanding of what constitutes an actionable hostile work environment under federal anti- discrimination laws. In explaining why Dediol had not endured an actionable hostile work environment, the district court revealed its confusion about the standards for proving a hostile environment claim. The court's opinion is replete with legal errors. 1. The district court misstated and/or misapplied the relevant legal standards. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court permitted an employee who endured a hostile work environment based on her gender to pursue a sex discrimination claim under Title VII. The hostile environment was, itself, the discriminatory adverse action that formed the basis of her claim. Id. at 66-67. Since Meritor, the law has unequivocally confirmed that a hostile work environment need not result in a tangible employment action in order to violate Title VII or the ADEA.<1> See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). As the Supreme Court has explained, "'The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment. When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Id. at 21 (citations omitted). The district court in the instant case failed to understand this basic principle. Contrary to established law, the district court required Dediol to show that his hostile work environment had resulted in another tangible adverse action. The court wrongly focused, for instance, on whether the denial of a transfer to the new car division was "an adverse employment action subject to relief under anti- discrimination laws." (R.40, Slip Op. at 10-11.) The court also wrongly considered whether Best Chevrolet had violated Dediol's right to reasonable accommodation for the exercise of his religion. (See id. at 14 ("the Fourth of July is not a religious holiday, and does not require the employer to make specific accommodations for the employee").) Neither of these inquiries was relevant to Dediol's hostile environment claim. The only question before the district court was whether Dediol could prove "'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.'" Harris, 510 U.S. at 21 (citations omitted). The district court did state that actionable harassment must be "severe or pervasive" (R.40, Slip Op. at 6), and it acknowledged that a jury could find the harassment which Dediol endured to be "pervasive." (Id. at 7-8.) Nevertheless, the court granted summary judgment to Best Chevrolet in part because the harassment was not also "severe." (Id.) This holding directly contradicts both Supreme Court and Fifth Circuit law. Harris, 510 U.S. at 21; Harvill v. Westward Comms., LLC, 433 F.3d 428, 434-35 (5th Cir. 2005). As this Court has explained, "the Supreme Court has stated that Title VII provides a legal remedy to victims who establish that the abusive conduct was severe or pervasive." Harvill, 43 F.3d at 434 (emphasis in original). In Harvill, a panel of this Court expressly overruled a series of decisions holding that actionable harassment had to be both severe and pervasive. Observing that "the Supreme Court's decisions are controlling and we correctly stated the standard originally in Waltman v. International Paper, 875 F.2d 468, 477 (5th Cir. 1989)," the Harvill Court held that "subsequent incorrect statements of the test are not binding." Harvill, 433 F.3d at 435 ("the requirement that . . . abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law") (emphasis in original) (expressly overruling Hockman v. Westward Comms., 407 F.3d 317, 326, 329 (5th Cir. 2004); Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999); and Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996)). The Court later clarified that "the required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct." EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (quoting El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 2001)). Here, the record evidence shows that for the last two months of Dediol's employment, Clay called Dediol "old scum," "old motherfucker," "old man," and "pops" at least six times daily. (R.19-5, Dediol Dep. Vol. 2 at 25; R.19-6 at 7, Answers to Clay Interrog. ¶ 3.) This alone translates to approximately once per hour, every working hour, for two straight months. Additionally, Clay disparaged Dediol's religion at least twelve times during this same period. (R.20-1, Dediol Dec. ¶ 46; R.19-6, Answers to Best & Clay Interrog. ¶ 16.) He repeatedly linked age- and religion-based insults to threats that he would fire Dediol, asked Dediol whether God would protect his job, and every day he threatened to "kick [Dediol] in the ass." (R.19-4, Dediol Dep. Vol. 1 at 49, 61, 62; R.19-5, Dediol Dep. Vol. 2 at 20, 25; R.20-1, Dediol Decl. ¶¶ 40, 43, 44, 46, 47; R.19-7, Responses to Best ¶ 7.) The district court was correct that "a reasonable jury could conclude that Clay's insults occurred with sufficient frequency" to alter the conditions of Dediol's employment, making the conduct pervasive. (R.40, Slip Op. at 8); see also WC&M Enters., 496 F.3d at 400 ("a regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII"). Such a finding would render the harassment illegal. The district court erred in other respects as well. First, the court considered the specifically age-based harassment separately from the specifically religion- based harassment, and it considered Clay's other outbursts separately from both. (R.40, Slip Op. at 9, 15.) Dissecting the evidence in this manner violates the Supreme Court's instruction that "whether an environment is hostile or abusive can be determined only by looking at all the circumstances." Harris, 510 U.S. at 23; see also Farpella-Crosby v. Horizon Health Ctr., 97 F.3d 803, 806 (5th Cir. 1996) (same). It also violates the common sense principle that incidents which are nondiscriminatory on their face may in fact be part of a broader course of discrimination, especially where the harasser "is accused of multiple acts of harassment, some overtly [discriminatory] and some not." Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002). A reasonable jury could infer from Clay's use of age-specific insults and his derogatory references to "your God" that all of Clay's outbursts were motivated by age and/or religious animus.<2> See WC&M Enters., 496 F.3d at 400-01 (factfinder could reasonably conclude that when the same harasser who constantly called plaintiff "Taliban" and "Arab" also banged on the glass partition of plaintiff's office in order to startle him, he did so because of animus stemming from plaintiff's religion and national origin). The district court erred by removing this issue from the jury's consideration. The district court also erred by concluding that Dediol failed to demonstrate "sufficient impact on [his] work performance to rise to the level of an actionable employment claim." (R.40, Slip Op. at 9.) Impact on work performance is only one of numerous ways for a plaintiff to demonstrate that harassment "alter[ed] the conditions of the victim's employment and create[d] an abusive working environment." Harris, 510 U.S. at 21. Thus, "showing that the employee's job performance suffered is simply a factor to be considered, not a prerequisite." WC&M Enters., 496 F.3d at 399-400. Even if harassment does not detract from an employee's work performance, "the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their [protected characteristic] offends Title VII's broad rule of workplace equality." Harris, 510 U.S. at 22; see also id. at 24 (Scalia, J., concurring) ("the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered"). Here, as in WC&M Enterprises, the district court erred by rejecting a hostile environment claim based on the plaintiff's failure to show that the harassment "was so severe that it kept him from doing his job." WC&M Enters., 496 F.3d at 400; (R.40, Slip Op. at 9). 2. The district court usurped the jury's role as factfinder. The district court not only erred by misstating the applicable legal standards; it also erred by inserting itself into the jury's role as factfinder. It was inappropriate for the court to speculate on summary judgment that Clay may have had legitimate reasons for requiring Dediol to miss a church-related function or to stop reading the Bible. (R.40, Slip Op. at 14-15.) On summary judgment, the district court must view all evidence in the light most favorable to the non-moving party (here, Dediol) and must make all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Contrary to this obligation, the district court invented its own neutral explanations for Best Chevrolet's actions. (See R.40, Slip Op. at 15 ("given that Dediol had only been employed by Best Chevrolet for just over one month on July 4, 2007, it is objectively reasonable - and certainly within Clay's authority - that Dediol's relative newcomer status with the dealership would justify Clay requiring him to start earlier than other employees, and that such a decision was not motivated by any particular religious animus")). The record evidence shows a genuine issue of material fact about Clay's motivation. This issue should be resolved by a jury. B. The district court did not consider the extent of the hostility in Dediol's work environment when assessing whether a reasonable employee in Dediol's position would have felt compelled to resign. Having reduced Dediol's grievances to "dislike of one particular manager," (R.40, Slip Op. at 18), the district court did not fairly consider Dediol's constructive discharge claim. As described above, Dediol's working environment consisted of far more than his mere dislike of Clay. For two months, Clay made daily threats of physical violence and directed some form of harassment at Dediol virtually every hour of Dediol's employment. (R.19-4, Dediol Dep. Vol. 1 at 47; R.19-5, Dediol Dep. Vol. 2 at 17, 25; R.19-6 at 7, Answers to Clay Interrog. ¶ 3.) The extensive nature of the harassment makes the constructive discharge claim stronger than the district court acknowledged. A constructive discharge claim requires a plaintiff to show "working conditions so intolerable that a reasonable person would have felt compelled to resign." Penn. State Police v. Suders, 542 U.S. 129, 147 (2004). This Court has instructed that "except in extraordinary circumstances, employment discrimination should be addressed within the existing employment relationship." Williams v. Admin. Review Bd., 376 F.3d 471, 48 (5th Cir. 2004). Accordingly, a plaintiff must show more than a simple hostile work environment in order to establish constructive discharge. Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). The Supreme Court has explained that constructive discharge based on a hostile work environment is "a 'worst case' harassment scenario, harassment ratcheted up to the breaking point." Suders, 542 U.S. at 131. This Court has established a non-exclusive list of factors to consider in determining whether "'working conditions were so intolerable that a reasonable person would feel compelled to resign.'" Lauderdale v. Tex. Dep't of Crim. Justice, Institutional Div., 512 F.3d 157, 167 (5th Cir. 2007) (citation omitted); see Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997) (list of factors is "non- exclusive"); Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994) (same). Those factors are: "(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (6) offers of early retirement that would make the employee worse off whether the offer were accepted or not." Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008). The district court correctly observed that Dediol could not prove any of the factors on this list but failed to acknowledge an alternative way in which Dediol could show an intolerable working environment. (R.40, Slip Op. at 17.) A reasonable jury could conclude that Clay's attempted assault the day before Dediol resigned constituted an "aggravating factor" sufficient to make Dediol's work environment no longer simply hostile, but now also intolerable. See Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (requiring "aggravating factors" to prove constructive discharge), aff'd on other grounds, 511 U.S. 244 (1994). Dediol's fear for his physical safety elevates this case beyond the typical hostile environment scenario. Until the attempted assault, Clay had largely limited his threats to words. (R.19-7, Answers to Best ¶ 7.) Once Clay tried to attack Dediol, and was prevented from doing so only because other employees stepped between the two men, the character of Dediol's work environment changed dramatically for the worse. (R.20-1, Dediol Decl. ¶ 52.) "If continued employment would compromise an employee's personal safety . . . we do not expect an employee to remain on the job while the employer tries to remedy the problem." Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 790 (7th Cir. 2007). Best Chevrolet argues that Dediol could not actually have feared for his safety because he remained at work the day of the attempted assault and did not quit until the next day. (R.19-1, Memo in Support of S.J. at 2.) While Best Chevrolet can argue this to a jury, the argument may not succeed. A reasonable jury could find that Dediol's brief delay before quitting is not enough to defeat a constructive discharge claim. In weighing this decision, the jury could consider Dediol's testimony that after the assault he was afraid of Clay and stayed out of the used car department until he quit, and that he did not pick up his final check because he would have had to walk into Clay's office to do so. (R.20-1, Dediol Decl. ¶¶ 50, 52.) A reasonable jury could also reject the district court's assumption that "Dediol's failure to exhaust Best Chevrolet's internal grievance procedures suggests that his work environment was not so intolerable as would compel a reasonable person to resign." (R.40, Slip Op. at 17-18.) Almost all of Clay's harassment occurred in full view of other employees and managers, and Dediol repeatedly and unsuccessfully sought relief from Oliver. (R.19-6, Answers to Best & Clay Interrog. ¶¶ 21, 23.) In these circumstances, a jury could reasonably conclude that Best Chevrolet knew or should have known of the harassment and did nothing to stop it. See Farpella-Crosby, 97 F.3d at 807 n.5 ("relevant to whether Horizon knew or should have known of Blanco's conduct is whether the conduct 'took place in public, under the eye of co-workers or supervisors.'"). Such a conclusion would support Dediol's belief that a formal complaint would have been futile. (R.20-1, Dediol Decl. ¶ 53.) In any event, Dediol's failure to use internal grievance procedures is less relevant to the strength of his claim than to Best Chevrolet's affirmative defense to liability. As the Supreme Court has held, in a hostile environment constructive discharge case that does not involve an official act of the employer, the employer may escape liability by alleging and proving that the plaintiff was unreasonable in resigning before resorting to reasonable internal grievance procedures. Suders, 542 U.S. at 148-49; see also Whitten v. Fred's, Inc., 601 F.3d 231, 248-51 (4th Cir. 2010) (same); see also Aryain, 534 F.3d at 480 (same). Although "the plaintiff who alleges no tangible employment action has the duty to mitigate harm," the Supreme Court added, "the defendant bears the burden to allege and prove that the plaintiff failed in that regard." Suders, 542 U.S. at 152. Whether Best Chevrolet's procedures are reasonably designed to prevent harassment and correct it promptly when it occurs, and whether Dediol was unreasonable in not using the procedures, are questions for the finder of fact. See Suders, 542 U.S. at 148 (importing affirmative defense as articulated in Faragher v. City of Boca Raton, 524 U.S. 557, 807-08 (1998), into constructive discharge context). The record evidence does not resolve these questions. Because the burden of proof lay with Best Chevrolet, not with Dediol, the district court erred by relying on Dediol's failure to use the company's complaint procedures as a reason to dismiss his claim. Conclusion The district court's numerous legal errors obscured the strength of Dediol's evidence. A reasonable jury could conclude that Dediol endured an actionable hostile work environment that culminated in constructive discharge. The EEOC therefore respectfully requests that this Court reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel s/ Gail S. Coleman ____________________________ 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 32.3 of the Fifth Circuit Rules, I certify that this brief was prepared with Microsoft Office Word 2010 and Microsoft Office Word 2003, and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 4,663 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2003 word-count function. s/ Gail S. Coleman_________________ 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, Gail S. Coleman, hereby certify that I filed seven paper copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 12th day of November, 2010. I also certify that I submitted the amicus brief electronically in PDF format through the Electronic Case File (ECF) system. I further certify that I served two paper copies of the foregoing amicus brief this 12th day of November, 2010, by first-class mail, postage pre-paid, to the following counsel of record: John Courtney Wilson Angella Hebert Myers 1510 Veterans Memorial Blvd. Mark C. Carver Metairie, LA 70005 Busch & Myers, LLP 1100 Poydras St., Suite 2520 New Orleans, LA 70163 s/ Gail S. Coleman _________________ 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 *********************************************************************** <> <1> While the district court is correct that this Court has never expressly held that hostile work environment claims are actionable under the ADEA (R.40, Slip Op. at 6 n.3), the EEOC's longstanding and consistent position is that they are. See EEOC Enforcement Guidance on Harris v. Forklift Sys., 1994 WL 1747814, at *6 (Mar. 8, 1994) ("the Commission believes that Harris also applies to cases involving hostile environment harassment on the basis of age"). Every other court to consider the issue has agreed. See Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008) (recognizing hostile work environment claims under the ADEA); Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001) (same); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996) (same). <2> A jury could make this finding even though Dediol was reluctant to testify about what was in Clay's mind. (See R.40, Slip Op. at 9-10, 15-16.)