No. 09-14063 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ NATIKA GANT, Plaintiff-Appellant, v. KASH N' KARRY FOOD STORES, INC. d/b/a SWEETBAY SUPERMARKETS, Defendant-Appellee ____________________________________________ On Appeal From the United States District Court for the Middle District of Florida Hon. Virginia M. Hernandez Covington, District Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ JAMES L. LEE EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT BLACKWOOD 131 M St. NE, 5th Floor Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4718 JULIE L. GANTZ julie.gantz@eeoc.gov Attorney CERTIFICATE OF INTERESTED PERSONS Amicus Curiae the Equal Employment Opportunity Commission submits this list, pursuant to Eleventh Circuit Rules 26.1-1 and 29-2, of trial judges, attorneys, persons, associations of persons, firms, partnerships, and/or corporations known to have an interest in the outcome of this appeal: - Vincent Blackwood, Acting Associate General Counsel, EEOC - Hon. Virginia M. Hernandez Covington, District Judge - Delhaize America, Inc., Parent Company of Defendant-Appellee - Delhaize Group, Parent Company of Delhaize America, Inc. - Natika Gant, Plaintiff-Appellant - Julie L. Gantz, Attorney, EEOC - Greenberg Traurig, P.A., Counsel for Defendant-Appellee - Kash N' Karry Foodstores, Inc., d/b/a Sweetbay Supermarkets, Defendant- Appellee - Jay P. Lechner, Attorney for Defendant-Appellee - James L. Lee, Deputy General Counsel, EEOC - Cynthia L. May, Counsel for Defendant-Appellee - David S. Shankman, Counsel for Plaintiff-Appellant - Shankman, Leone & Westerman, PA, Counsel for Plaintiff-Appellant - Peter W. Ziober, Counsel for Defendant-Appellee Pursuant to Federal Rules of Appellate Procedure Rule 26.1, Amicus Curiae the Equal Employment Opportunity Commission, as a government entity, is not required to file a corporate disclosure statement. ________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . C-1 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . 2 Statement of the Facts . . . . . . . . . . . . . 2 District Court Decision. . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 8 THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT GANT REASONABLY BELIEVED THAT SHE WAS OPPOSING A VIOLATION OF TITLE VII WHEN SHE COMPLAINED TO MANAGEMENT ABOUT PRICE'S RACIALLY DEROGATORY COMMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .22 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page(s) Alexander v. Gerhardt Enterprises, 40 F.3d 187 (7th Cir. 1994). . . . . . . . . . 10 Berman v. Orkin Exterminating Co., 160 F.3d 697 (11th Cir. 1998). . . . . . . . . . 8 *Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . . . . . 14 *Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (2006) . . . . . . . . . . . . . 14 *Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009). . . . . . . . . . . . 13, 19 Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000). . . . . . . . . 17 n.3 Dailey v. Park Place Airport Parking, L.L.C., No. 4: 99-cv-0403, 2000 WL 641203 (E.D. Mo. May 16, 2000) . . . . . . . . . . . . 20 *EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) . . . . . . . . . . 19 *EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005) . . . . . . . . . . 20 *Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998). . . . . . . . . 12, 14 Fine v. Ryan International Airlines, 305 F.3d 746 (7th Cir. 2002) . . . . . . . . . . 15 Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001). . . . . . . . . . 20 Greene v. MPW Industrial Services, Inc., No. 06-647, 2006 WL 3308577 (W.D. Pa. Oct. 4, 2006). . . . . . . . . 10, 16 Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000). . . . . . . . . . .8 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . 11 Jackson v. Alabama State Tenure Commission, 405 F.3d 1276 (11th Cir. 2005) . . . . . . . 17 n.3 Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006) . . . . . . . . . . 21 Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001) . . . . . . . . . 16 *Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997) . . . .8, 12, 15 Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) . . . . . . . . . 11 Rollins v. Florida Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989). . . . . . . . 17 n.3 Schwabacher v. United States, 334 U.S. 182, 207 (1948) . . . . . . . . . . . . 19 *Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001) . . . . . . . . . .10 Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998) . . . . . . . . . .19 United States v. Yonkers Board of Education, 837 F.2d 1181 (2d Cir. 1987) . . . . . . . . . .19 Statutes 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . passim STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal laws prohibiting employment discrimination. This appeal raises important questions regarding the legal standards for determining whether an individual has engaged in protected opposition within the meaning of the anti-retaliation provision of Title VII and, by implication, the Age Discrimination in Employment Act, 28 U.S.C. § 623(d), and the Americans with Disabilities Act, 42 U.S.C. § 12203(a)- (b). We believe that the district court, in holding that the plaintiff could not have reasonably believed that a colleague's repeated use of highly offensive racial epithets constituted a hostile work environment, applied too strict a standard. If affirmed by this Court, we submit, the district court's approach would discourage employees from promptly reporting harassing conduct and giving employers an opportunity to address the situation. This in turn would frustrate the goal of Title VII to resolve workplace discrimination without litigation wherever possible. We therefore offer our views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE<1> Whether the district court erred by applying an overly strict standard in holding that Gant could not have reasonably believed that she was opposing a racially hostile work environment when she complained to management that she had heard a fellow manager make three racist statements, including the slur "nigger," and coworkers reported that he had made similar comments in the past. STATEMENT OF THE CASE A. Statement of the Facts Natika Gant was a customer service manager in a Sweetbay supermarket operated by the defendant. R.47 (Gant Dep. 253). In late July or early August of 2007, she heard Robert Price, the store's evening manager, say, "I can't stand ghetto black niggers." R.47 (Gant Dep. 266- 67). Gant, who is black, testified that she heard Price make two other offensive racial comments about blacks in the months that they had been working together. Specifically, Gant stated that she heard Price tell one black employee that her "handwriting was ghetto," R.47 (Gant Dep. 284, 287), and tell another black employee who was speaking loudly that "[t]his is not the ghetto." R.47 (Gant Dep. 291, 293). Coworkers also informed Gant that Price had made other offensive racial comments, including a statement that a black employee had a "black ghetto booty," a request that a black employee remove her head scarf because "this isn't the ghetto;"<2> and a statement that a black employee should go work at the "MLK" store location because of his hairstyle. R.51 (Gant Aff. ¶¶ 3-5); R.47 (Gant Dep. 297). Gant also testified that she heard that Price instructed a black employee to watch black customers, but not white customers, because he believed that black customers would steal from the store. R.51 (Gant Aff. ¶ 4). Sweetbay has a policy prohibiting "epithets, slurs, negative stereotyping, or intimidating acts based on an individual's protected status." R.47 #5 (Kash N' Karry Associate Handbook, Exh. 12 to Gant Dep. at 13). Employees are required to report promptly any conduct they witness that may be inconsistent with the policy. Id. Management level employees are "required to take immediate action whenever they see or suspect conduct that may violate this policy and should contact the Human Resources Department immediately." Id. Shortly after she heard Price's comment about "ghetto black niggers," Gant complained about Price's racial comments to Paula Buckner, the store manager. R.41 (Buckner Dep. 12-13, 16). Buckner informed human resources representative Keith Rhodes of Gant's complaint, and Rhodes stated that he would investigate the matter. R.41 (Buckner Dep. 13); R.34 (Rhodes Dep. 17-18); R.47 (Gant Dep. 273, 276). Gant also complained about Price's comments to district manager David Gamble and told him she felt uncomfortable working with Price. R.43 (Gamble Dep. 45-48); R.43 (8/3/07 Memo re: Racial Comments, Exh. 2 to Gamble Dep.); R.24 (Rhodes Dep. 16-17). Gamble offered to investigate and called Rhodes. R.43 (Gamble Dep. 34). Rhodes and Debbie Petitti, defendant's human resources director, met with Gant about two weeks after she complained. R.47 (Gant Dep. 314-17). There is disputed evidence as to whether Gant was instructed to keep the fact of the investigation into Price's behavior confidential, and what she understood that instruction to mean. R.47 (Gant Dep. 316-18, 321-22); R.45 (Petitti Dep. 20-21, 35); R.40 (Rhodes Dep. 40, 78). Two days after the meeting, Gant sent an e-mail to Petitti and Rhodes stating that she was uncomfortable working with Price, that things had "only gotten worse," and that she didn't "know what to do." R.47 (8/18/2007 e-mail, Exh.17 to Gant Dep.). She did not receive a response. R.51 (Gant Aff. ¶ 8). On August 19, 2007, several days after the meeting with Rhodes and Petitti, Gant and Price had a disagreement about an employee who came to work late. R.47 (Gant Dep. 358-61); R.51 (Gant Aff. ¶ 9). The employee had called Gant to say she would be late, but Price told Gant that she was a "nobody" and that the employee should have called him rather than Gant. R.47 (Gant Dep. 361); R.51 (Gant Aff. ¶ 9). Gant, upset by this interaction, attempted to find Buckner and/or Gamble for advice on how to handle the situation. R.47 (Gant Dep. 370-71). When she was unable to reach either one, Gant contacted manager Mike Massey for advice and mentioned her complaint about Price's racist comments. R.47 (Gant Dep. 363-64, 372-73); R.44 (Massey Dep. 29 & 8/20/07 memo to Gamble, Exh.1 to Massey Dep.). Gant also called another manager, Duane Burgess, to request that he cover her shift. R.47 (Gant Dep. 364-65); R.42 (Burgess Dep. 15,-17). When Gamble later learned that Gant had mentioned her complaint against Price to Massey and Burgess, he fired her for "conduct unbecoming of [a] management person." R.43 (Gamble Dep. 98-99). Gant's discharge form states, "Natika was given direction to keep any and all information confidential. Afterwards she shared information with two separate managers from other stores regarding the investigation." R.43 (Constructive Advice Memo, Exh. 3 to Gamble Dep.). According to Gamble, Gant violated company policy when she told Massey and Burgess about her complaint against Price. R.43 (Gamble Dep. 68-69 & Exh. 3). Gant then brought this suit alleging that Sweetbay violated Title VII by firing her because she complained about Price's racially derogatory statements. B. District Court Decision The district court granted summary judgment for the company, holding that, even if Gant's version of events is true, "[Price's] conduct fails to constitute actionable racial harassment sufficient to serve as a basis for Gant's prima facie retaliation claim." R.72 at 4 (District Court Order of July 17, 2009). The court recognized that "Title VII prohibits an employer's punishing an employee who complains about behavior prohibited by Title VII." Id. at 7. However, according to the court, "to engage in protected activity, the plaintiff must reasonably believe that the underlying conduct was severe enough to violate Title VII." Id. (citations omitted). The court held that Gant cannot establish a retaliation claim because, "[i]n the light most favorable to Gant and assuming Price conducted himself exactly as Gant alleges, Price's conduct failed to create an objectively abusive or hostile working environment pursuant to Eleventh Circuit case law." Id. at 11-12. The court held that "[h]owever offensive the term, a single or occasional use of a racial epithet is not sufficient to qualify as objectively severe or pervasive conduct." Id. The court concluded that "no hostile work environment existed" because Price's conduct "was neither frequent, threatening, nor humiliating," nor did it interfere with Gant's work performance. Id. at 13. The court then held that "Gant's complaints that Price's conduct constituted racial discrimination were not objectively reasonable and, thus, not protected activity." Id. at 13-14. The court also ruled that, even if Gant could establish that she engaged in protected activity, Sweetbay would be entitled to summary judgment because there is insufficient evidence that the company's explanation for Gant's termination—her violation of Sweetbay's "strict confidentiality policy with regard to internal investigations"—was pretextual. Id. at 18, 21. According to the court, even if Gant was unaware of the confidentiality policy, "that fact is insufficient to demonstrate pretext" because Title VII does not require ‘"the employer to have good cause for its decisions'" and an "‘employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'" Id. at 20 (quoting Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1187 (11th Cir. 1984)). ARGUMENT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT GANT REASONABLY BELIEVED THAT SHE WAS OPPOSING A VIOLATION OF TITLE VII WHEN SHE COMPLAINED TO MANAGEMENT ABOUT PRICE'S RACIALLY DEROGATORY COMMENTS. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the statute. See 42 U.S.C. § 2000e-3(a). Gant alleges that she is protected by this provision because she reasonably believed she was opposing conduct that violated Title VII. This Court has held that to state a claim under this provision, "the plaintiff need only show that he had a ‘reasonable belief' that an unlawful employment practice was occurring, and is not required to show that the employer actually engaged in an unlawful employment practice." Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1998); see also Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000). As this Court stated in Little v. United Technologies: A plaintiff [] need not prove the underlying discriminatory conduct that he opposed was actually unlawful in order to . . . overcome a motion for summary judgment; such a requirement "[w]ould not only chill the legitimate assertion of employee rights under Title VII but would tend to force employees to file formal charges rather than seek conciliation o[r] informal adjustment of grievances." 103 F.3d 956, 960 (11th Cir. 1997) (quoting Sias v. City Demonstration Agcy., 588 F.2d 692, 695 (9th Cir. 1978)). The district court held that Gant's complaints were not protected under this standard, stating that "a single or occasional" racial epithet is insufficient to qualify as objectively severe or pervasive conduct, and, therefore, can never serve as the basis for protected oppositional conduct. R.72 (Order at 12). The district court committed two errors. First, the court erred in ruling that a jury could not find that Gant reasonably believed that the offensive comments she complained about constituted a hostile work environment. Second, the court should have recognized that Gant's complaints about Price's comments could be found to be opposition to unlawful conduct even if Price had not yet made enough comments to create a hostile work environment. At the time Gant first complained about Price, she had heard him make three highly offensive racial comments, one of which used the term "nigger." She also had been told that Price had made at least four similar derogatory comments about blacks in the past.<3> In concluding that Gant could not have reasonably believed that these comments were severe or pervasive enough to constitute a hostile work environment, the court failed to appreciate how severely offensive the term "nigger" is to a black employee hearing it. One court of appeals has expressly rejected the view embraced by the district court that a single use of word "nigger" can never be sufficient to establish a reasonable belief that a hostile work environment exists. See Alexander v. Gerhardt Enters., 40 F.3d 187, 195 (7th Cir. 1994) (rejecting the defendant's argument that the plaintiff's complaint about one racist slur—"if a nigger can do it, anybody can do it"—could not be found to constitute protected opposition); see also Greene v. MPW Indus. Servs., Inc., No. 06-647, 2006 WL 3308577, at *3 (W.D. Pa. Oct. 4, 2006) (in retaliation action brought under § 1981, court held that it was objectively reasonable for an employee to believe that he was complaining of a racially hostile work environment based on a single comment made by a coworker that he "nigger-rig" a piece of equipment). See also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n.6 (4th Cir. 2001) ("‘The use of the word ‘nigger' automatically separates the person addressed from every non-black person; this is discrimination per se.'") (quoting Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984)); see also id. at 185 ("Far more than a ‘mere offensive utterance,' the word ‘nigger' is pure anathema to African- Americans."). Given the highly offensive nature of the comments Gant heard, and the fact that Gant was aware that Price had directed similar statements at black employees or customers on at least four occasions in the past, a jury could find that it was not unreasonable for Gant to believe that a racially hostile work environment already existed at the store when she complained. In reaching a contrary conclusion, the district court applied an unduly stringent standard for determining whether complaints of harassment are protected. This strict standard is inappropriate in a case like this where the plaintiff complained about conduct which clearly could be the basis for a hostile work environment claim if it occurred frequently enough. The district court recognized that the comments Gant complained of were egregiously racist, but found that Gant could not reasonably believe that she had heard enough offensive comments to constitute a Title VII violation. However, as the Supreme Court has recognized, an inquiry into whether harassment is sufficiently severe or pervasive to establish a hostile work environment "is not, and by its nature cannot be, a mathematically precise test." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993). See also Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (the objective severity of harassment "should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances") (internal citations and quotation marks omitted). Because harassing conduct exists on a continuum and in most cases there is no clear point where the offensive behavior crosses the line into the unlawful realm, courts should not be overly rigid in assessing the reasonableness of a layperson's view that patently racist comments violated Title VII. Using a stringent standard to assess reasonableness puts victims of harassment in an untenable position. An employee like Gant who has witnessed some significant harassment will often not know whether she has witnessed all the harassment that occurred, and will therefore be in a poor position to assess whether a hostile work environment is present or imminent. If she complains promptly in an effort to put an end to the offensive behavior, she may not be protected from retaliation. On the other hand, if she fails to promptly notify her employer of harassing conduct by a co-employee, she may be unable to establish the employer's liability for harm resulting from continued harassment. See Little, 103 F.3d at 959-60 (coworker harassment is not attributable to the employer unless the employer "knew or should have known of the harassment in question and failed to take prompt remedial action"). Cf. Faragher v. City of Boca Raton, 524 U.S 775, 806-07 (1998) (if an employee fails promptly to "avail herself of the employer's preventive or remedial apparatus," she may be barred from obtaining relief for any reasonably avoidable harm). Thus, if Gant failed to complain about Price's comments when she did and the conduct continued, it would be difficult for her to establish that Sweetbay was liable for negligently allowing a hostile environment to develop or continue because the company could argue that it was not on notice of the situation. The Supreme Court noted this issue in Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009). In holding that an employee's statements about sexual harassment in response to questions during an employer's investigation of a coworker's complaint were protected by § 704, the Court noted that a contrary rule would place an employee in "a real dilemma" in which she could be penalized for reporting discrimination in response to an employer's questions but, if she kept quiet and later filed a Title VII claim, the employer might well escape liability by arguing that it "‘exercised reasonable care to prevent and correct [any discrimination] promptly'" but "‘the plaintiff employee failed to take advantage of . . . preventive or corrective opportunities provided by the employer.'" Crawford, 129 S. Ct. at 852 (quoting Ellerth, 524 U.S. at 765). The Court stated that "[n]othing in the statute's text or our precedent supports this catch-22." Id. at 853. The restrictive standard imposed by the district court also frustrates one of the main purposes behind Title VII's prohibition of sexual harassment by discouraging employees from promptly reporting offensive conduct by co-workers or supervisors. The Supreme Court has noted that Title VII's deterrent purposes would best be served by "encouraging employees to report harassing conduct before it becomes severe or pervasive" enough to be actionable. Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (emphasis added). See also Faragher, 524 U.S. at 806-07 (a primary objective of Title VII is to "avoid harm"). As the Court has also observed, "effective enforcement [of Title VII] could . . . only be expected if employees felt free to approach officials with their grievances. . . . Interpreting the antiretaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal citation and quotation marks omitted). A standard that leaves complaints of harassment unprotected until it is clear that the harassment is severe or pervasive would frustrate this purpose by discouraging employees from complaining early enough to nip harassment in the bud. Like many employers, Sweetbay has a policy prohibiting racial harassment and has procedures that employees may use to complain about harassment. Sweetbay's policy required employees to report "promptly" any conduct witnessed that may violate the anti-harassment policy. R.47 #5 at 13. Under the policy, managers are required to take "immediate" action when they see or suspect such conduct by reporting it to the human resources department. Id. When Gant complained to her store manager, the district manager, human resources representatives, and later to managers Massey and Burgess, she was complying with a duty imposed on her by her employer and serving the purposes of Title VII by helping the company prevent a violation of Title VII from occurring. Yet the district court held that Title VII does not protect Gant from retaliation for making this complaint. This Court has held that a plaintiff's belief that she has opposed prohibited conduct must be objectively reasonable. See Little, 103 F.3d at 960. However, this requirement is not intended to impose the same standard as that applied to an independent discrimination claim, but, rather, simply to ensure that the plaintiff's belief has some grounding in reality. See Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) ("It is improper to retaliate against anyone claiming a violation of Title VII unless that claim is ‘completely groundless.'") (internal citation omitted). So long as the conduct about which the plaintiff is complaining is objectively consistent with that deemed unlawful in the case law generally, the employee's belief that she is opposing unlawful conduct can be found to be objectively reasonable. This Court has observed that a case where "[r]easonable minds could disagree on [whether the plaintiff had a good-faith reasonable belief that she was the victim of harassment]" is "an inappropriate candidate for judgment as a matter of law." Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1188 (11th Cir. 2001). Thus, it is appropriate to look to the substantive law in evaluating whether the conduct about which the plaintiff complained was the type of conduct that may result in a hostile work environment. See, e.g., Greene, 2006 WL 3308577, at *3. However, where, as here, the conduct is indisputably of that type, it undermines the purpose of Title VII's anti- retaliation provision to subject a plaintiff's belief as to whether the conduct has occurred often enough to constitute an actionable hostile work environment to the same level of scrutiny. We submit that a jury could find that it was objectively reasonable for Gant, as a lay person, to believe that she was opposing unlawful conduct under Title VII when she complained about Price's comments. Therefore, the district court erred in granting summary judgment to Sweetbay.<4> Although, as discussed above, we believe that the evidence would support a finding that Gant reasonably believed that a hostile work environment existed when she complained about Price's conduct, this Court should take the opportunity to clarify the standard for determining whether complaints of harassment are protected under § 704(a). Although this Court and other courts generally state that complaints about harassment are protected activity only if the complainant reasonably believed that the harassment was already severe or pervasive enough to constitute a hostile work environment, that standard is inconsistent with the language of the retaliation provision, the remedial purpose of Title VII, and Supreme Court precedent placing an obligation on both employers and employees to take measures to prevent a hostile work environment from occurring. Instead, an employee should be protected from retaliation by § 704(a) when she reports conduct by a coworker or supervisor that, if repeated often enough, would create a hostile work environment in violation of § 703(a). The district court assumed that Gant could not have "opposed" an unlawful employment practice unless it had already occurred. This assumption is based on an unduly narrow definition of the term "oppose." Individuals can "oppose" discrimination not only by seeking redress after a violation has occurred but also by seeking to prevent a violation from occurring. This is the common usage of the word "oppose." See Crawford, 129 S. Ct. at 850 ("The term ‘oppose,' being left undefined by [§ 704(a)], carries its ordinary meaning: to resist or antagonize . . . ; to contend against; to confront; resist; withstand.") (internal citations omitted). By way of illustration, an individual seeking to prevent low-income housing from being constructed in his neighborhood is said to "oppose" such construction. Cf. United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-24 (2d Cir. 1987) (community "opposition" contributed to placing low-income housing in minority communities). And a person who "opposes" capital punishment, for example, does so not only by protesting against executions after they have occurred, but also by engaging in activities designed to prevent executions from happening, such as by voting against the death penalty as a juror in a capital murder case. See, e.g., Truesdale v. Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion of jurors from jury panel who "opposed the death penalty" because their "opposition to it would prevent [them from] voting for a death sentence"). Cf. Schwabacher v. United States, 334 U.S. 182, 207 (1948) (stockholders "oppos[e]" a merger by acting to prevent it). Where the issue has been presented, courts have construed § 704(a) to protect complaints aimed at preventing violations. See EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (where white manager objected to order to fire a black subordinate that he reasonably believed was racially motivated, his opposition to the termination, which had not yet happened, was protected under § 704(a)); EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-09 (4th Cir. 2005) (reversing summary judgment on § 704(a) claim based on evidence that supervisor refused to participate in a proposed scheme to terminate subordinate for discriminatory reasons); Foster v. Time Warner Entm't Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001) (where supervisor believed that the ADA required that she accommodate an epileptic employee, her refusal to follow manager's direction to stop accommodating the employee was protected opposition activity under the ADA's retaliation provision because "[a] manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it"); Dailey v. Park Place Airport Parking, L.L.C., No. 4: 99-cv-0403, 2000 WL 641203, at *4 (E.D. Mo. May 16, 2000) ("Plaintiff engaged in protected activity when he opposed [the supervisor's] directions not to hire any more black employees. Opposing an unlawful employment practice is protected conduct."). Gant's complaints would qualify for protection under this standard. Given the evidence that Price had made racially offensive remarks on multiple occasions, a jury could find that it was reasonable for Gant to believe that, unless something was done by management, Price's comments would continue. And even the district court appeared to recognize that, given the highly offensive nature of his comments, they would create a hostile work environment if they continued. See R.4 (Order at 12). Accordingly, because Gant's complaints were reasonably calculated to prevent a hostile work environment from occurring, she was "opposing a practice" made unlawful by Title VII. The Fourth Circuit sanctioned this approach in Jordan v. Alternative Res. Corp., 458 F.3d 332 (4th Cir. 2006). In Jordan, the court held that, to be protected, a plaintiff "must have a reasonably objective belief that [the opposed conduct] will continue or will be repeated." Jordan, 447 F.3d at 332; see also id. at 327 (coworker, on seeing TV report that local snipers had been captured, opined: "They should put those two black monkeys in a cage with a bunch of black apes and let the apes f__k them").<5> The facts in this case satisfy the Jordan majority's standard since Price had made more than one racially offensive comment and the jury could have found that it was reasonable for Gant to believe he would have continued doing so had Gant not stepped forward and complained. The fact that Price referred to black individual as "niggers" and repeatedly characterized them as "ghetto" would support such a finding. CONCLUSION For all the aforementioned reasons, the Commission respectfully requests that the Court reverse the district court's grant of summary judgment and remand this case to the district court for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT BLACKWOOD Acting Associate General Counsel ________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 4,867 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF SERVICE I hereby certify that one original and six copies of the foregoing brief were sent this 24th day of November, 2009, by FedEx Next Day Air, postage prepaid, to the Clerk of this Court. I further certify that one copy of the foregoing brief was sent this 24th day of November, 2009, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff-Appellant and Defendant-Appellee, respectively: David S. Shankman Shankman, Leone & Westerman, PA Suite 100 609 E Jackson Street Tampa, FL 33602 Peter W. Zinober Cynthia L. May Jay Paul Lechner Greenberg Traurig, LLP Suite 100 625 E. Twiggs Street Tampa, FL 33602 ________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> The district court stated that Gant "witnessed" this comment about the head scarf. Gant testified that two coworkers told her about the incident. R.47 (Gant Dep. 302). <3> The district court found that Gant had personally witnessed two racially offensive comments and knew of three others. R.72 (Order at 2-3). The analysis is the same with either calculus. <4> The district court held that, even if Gant's complaints were protected activity, Sweetbay is entitled to summary judgment because there is insufficient evidence that the company's assertion that it fired Gant because she disclosed the existence of her official complaint to two colleagues was pretextual. The question of pretext should not enter into the analysis, however. If Gant's first complaint about Price's behavior was protected activity, then her reiteration of that complaint to her colleagues was necessarily protected as well. Accordingly, by asserting that Gant was fired because she told her colleagues that she had complained about Price in the course of seeking their help, the company has acknowledged that she was fired for engaging in protected activity. Because Gant's opposition activity led directly to her termination, Sweetbay's only defense to liability under § 704(a) would be to establish that Gant's method of opposing Price's conduct by confiding in her fellow managers was unreasonable. See Rollins v. Fla. Dep't of Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989) (if "the manner in which the employee complains is found to be unreasonable, it falls outside the protection of the statute"); Jackson v. Ala. State Tenure Comm., 405 F.3d 1276, 1290 (11th Cir. 2005) ("'to qualify for the protection of the [anti-discrimination] statute, the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable'") (quoting Rollins, 868 F.2d at 401). Gant's confiding in fellow-managers, however, is not the kind of opposition courts have found to be unreasonable, unprotected activity. See, e.g., Cruz v. Coach Stores, 202 F.3d 560, 566 (2d Cir. 2000) (court of appeals held a plaintiff who slapped a coworker after he made sexually offensive comments was not engaged in protected opposition because "[s]lapping one's harasser . . . is not a protected activity."). Accordingly, Sweetbay may be found liable for firing Gant even if it actually relied on her breach of its confidentiality policy. <5> The dissent agreed that an employee can be protected from retaliation for complaining about racially offensive comments that have not yet caused a hostile work environment, but disagreed with the majority's requirement that he must show that he had "a reasonably objective belief that it will continue or will be repeated." 447 F.3d at 340 (King, J., dissenting). Rather, the dissent reasoned, "[w]hen the cumulative nature of a hostile work environment is considered, it is clear that employees are protected under Title VII from employer retaliation if they oppose conduct that, if repeated, could amount to a hostile work environment." Id. at 341.