_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-60886 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GENERAL MOTORS CORP., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Mississippi _______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . .ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) . . . . . . . . .13, 15 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . passim Crowley v. L.L. Bean, 303 F.3d 387 (1st Cir. 2002) . . . . . . . . . . . . . .4, 5, 6 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . passim Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) . . . . . . . . . . . . . . . 4 Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005) . . . . . . . 4, 7 Hirschfeld v. New Mexico Corrs. Dep't., 916 F.2d 572 (10th Cir. 1990) . . . . . . 15 Hockman v. Westward Commications, LLC, 407 F.3d 317 (5th Cir. 2004) . . . . . . 6, 7 Indest v. Freeman Decorating, Inc., 168 F.3d 795, 801 (5th Cir. 1999) . . . . . . 19 Kreamer v. Henry's Towing, 150 Fed. Appx. 378 (5th Cir. 2005) . . . . . . . . . . 15 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) . . . . . . . . . . . 8 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) . . . . . . . . . . . . . . 21 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . 4-5 Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999). 20, 21 Shepherd v. Comptroller of Pub. Accounts., 168 F.3d 871 (5th Cir. 1999) . . . 6, 7 Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999) . . . . . . . . . . . . . . . . 20 OTHER AUTHORITIES EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html . . . . . . . . . . . . . . . . . .15 INTRODUCTION The Commission alleges that General Motors violated Title VII by subjecting Paige McGee to a sexually hostile work environment at the Brandon, Mississippi, plant where she was assigned as a temporary employee. The district court granted summary judgment for GM. In our opening brief, we argued that the district court correctly rejected GM's argument that the harassment at issue was not sufficiently severe or pervasive to violate Title VII. We argued that the evidence of manager Charles McBride's frequent sexually suggestive stares, comments, propositions, innuendos, stalking, and inappropriate touching would allow a finding that McGee was subjected to conduct that altered the terms and conditions of her employment because of her sex. We argued that the district court erred, however, in holding that GM could not be found liable for the harassment by its manager under the two-prong affirmative defense articulated in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). We emphasized that, because GM has the burden of proving both elements of the Faragher/Ellerth defense, the company is not entitled to summary judgment unless undisputed evidence compels a finding in its favor on both elements. We argued that the record in this case does not compel a finding for GM on either prong, in particular because a reasonable jury would not be compelled to find that the company acted reasonably in preventing and correcting McBride's repeated, notorious harassment of women employees, culminating with McGee. In its brief as Appellee, GM distorts the factual record in this case and the Commission's arguments on appeal. GM also ignores the fact that it has the burden of proof on the Faragher/Ellerth affirmative defense. We submit this reply brief to refocus the appeal on the correct legal standards, clarify the factual record, and respond to GM's mischaracterization of the evidence and applicable case law. ARGUMENT 1. The district court held that there is sufficient evidence in the record to support a finding that McGee was subjected to harassment sufficiently severe or pervasive to alter the terms of her employment and violate Title VII. GM nonetheless renews its argument that the conduct at issue was too insignificant to support a hostile work environment claim. See GM Br. at 24-25. In our opening brief, we detailed the evidence that McBride, a manager with whom McGee worked, repeatedly stared at her in a sexually suggestive manner, followed her throughout the plant, asked about her sex life, made sexually suggestive comments about her appearance, sexually propositioned her, and touched her inappropriately on multiple occasions. EEOC Br. at 3-6, 10-11 (citing record on appeal). We argued that the district court correctly concluded that the incidents comprising the work environment to which McGee was subjected were sufficiently numerous, serious, humiliating and threatening to affect McGee's ability to perform her job and to constitute an actionable hostile work environment in violation of Title VII under the Supreme Court and Fifth Circuit jurisprudence. See EEOC Br. at 23-25.<1> In arguing that the district court erred in ruling that a jury could find the offensive conduct to which McGee was subjected was sufficiently egregious to alter the terms and conditions of her employment, GM asserts that the harassing conduct in two cases cited by the Commission in its opening brief where the plaintiff prevailed on appeal is more offensive than the conduct at issue in this case. See GM Br. at 25-27. This proves nothing; that the conduct in this case is arguably less reprehensible than that in another case where the plaintiff prevailed does not lead to the conclusion that the case fails to meet the severe or pervasive standard. Sexual harassment violates Title VII if it is sufficiently severe or pervasive to alter the terms and conditions of the victim's employment, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986); it does not have to be as "appalling" as the conduct alleged in other cases that was found to support a claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (the "appalling conduct" alleged in prior cases should not be taken to "mark the boundary of what is actionable"). In any event, GM's assertion that the facts in Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005), are "a far cry from the incidental instances of physical contact alleged here" rests on questionable grounds. GM Br. at 26. Although the incidents of physical touching in Harvill are more egregious than what McGee suffered, both the allegations in Harvill and in this case, if evaluated collectively and believed by a jury, describe actionable hostile work environments, as this Court in Harvill and the district court in this case concluded. GM also argues that the Commission's citation to Crowley v. L.L. Bean, 303 F.3d 387 (1st Cir. 2002), does not support "its position, suggesting that McBride 'stalked' McGee." GM Br. at 26. First, McBride's conduct, as we described in our opening brief (see EEOC Br. at 3) is properly described as "stalking." McGee testified that what bothered her the most about McBride's sexually inappropriate behavior was his constant presence. RE-Tab 5 (ROA-168) (McGee Dep. 78). She testified that, on her first day at work, "[she] noticed he was staring at [her], - he was to the right of [her] and [she] kind of looked up and he was just staring there. He had his arm propped up on a file cabinet and his head just kind of propped on his fist, and he was just staring and had a smile on his face." RE-Tab 5 (ROA 163) (McGee Dep. 59). According to McGee, McBride appeared wherever McGee went: "walking down the stairs, in the elevator, . . . at the door every morning when I came into work." RE-Tab 5 (ROA-163-64) (McGee Dep. 60-61). McGee testified: "He was everywhere . . . he just wouldn't leave me alone." RE-Tab 5 (ROA-192) (McGee Dep. 176). She also stated: "It was just like he would be waiting in the staircase for me to come downstairs." RE-Tab 5 (ROA 168) (McGee Dep. 78). McGee testified that she was not comfortable with McBride "following her around." RE-Tab 5 (ROA 163) (McGee Dep. 60). This testimony describes stalking behavior. Second, the Commission cited Crowley as legal support for the argument that McBride's inappropriate sexually-motivated advances affected McGee even at the times she was not directly working with him, not because the facts in Crowley were identical. See EEOC Br. at 24. That the stalking in Crowley, where the harasser broke into the plaintiff's house, was more troubling than in this case again proves nothing. McGee's testimony that she feared seeing McBride whenever she was at work and felt sick to her stomach upon seeing his car in the parking lot (RE- Tab 5 (ROA-166, 168) (McGee Dep. 70, 78)) along with the other evidence of harassment would permit a finding that the harassment at issue was sufficiently severe or pervasive to constitute a hostile work environment in violation of Title VII, consistent with the First Circuit's decision in Crowley, 303 F.3d at 400-01, and with the district court's decision in this case. GM also compares McGee's work environment to two cases where this Court found the harassing conduct insufficiently severe or pervasive to support its argument that the district court erred in denying summary judgment on this ground. See GM Br. at 24-25 (citing Shepherd v. Comptroller of Pub. Accounts., 168 F.3d 871 (5th Cir. 1999) and Hockman v. Westward Commc'ns, LLC, 407 F.3d 317 (5th Cir. 2004)). These cases are distinguishable. In Shepherd, this Court pointed out that the plaintiff testified that the harasser, a coworker, "never propositioned [the victim], asked her out on a date, or suggested that he would like to sleep with her." 168 F.3d at 872. Moreover, the plaintiff in Shepherd testified that, except for the instances of harassment complained of, she had a friendly relationship with the harasser both at work and outside of work. Id. The Court also noted that the plaintiff did not allege supervisors engaged in the harassment. Id. at 875. In this case, McBride, a supervisor, sexually propositioned McGee and told her that he would like to sleep with her. See EEOC Br. at 4-5 (describing, with citations to the record, an incident where McBride played a song for McGee in his office that contained the lyrics that "I'm going to put you over a desk . . . or make love to you over a desk" and told McGee that was what he wanted to do to her). McBride also asked for McGee's home telephone number several times, asked if she would cheat on her boyfriend, made repeated comments about her body, asked her about her sex life, and hugged and touched her inappropriately on multiple occasions. See EEOC Br. at 3-4 (citing record). McBride was a manager with whom McGee, a new temporary employee, was forced to work regularly, and he was feared by McGee. See EEOC Br. at 5 (citing record) (seeing McBride's car in the parking lot made McGee sick to her stomach); id. at 14 (testifying that McBride "scared me to death"). Thus the facts in this case can be distinguished from those in Shepherd, and, as the district court held, describe an actionable hostile work environment. The panel in Hockman, which involved the same workplace and harasser as in Harvill, concluded that the sexual comments alleged "were not in the same league" as those alleged in other cases and that Hockman's allegations were "on the same plane" as those in Shepherd, where the plaintiff's allegations were insufficient to defeat summary judgment.<2> 407 F.3d at 328. As we stated in our opening brief (EEOC Br. at 23-25) the critical issue in a hostile work environment action is whether a jury could find that a pattern of behavior was sufficiently severe or pervasive to alter the terms and conditions of a victim's employment, taking into consideration the totality of the circumstances. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 81-82 (1998) ("The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed."). When evaluated under the proper standard, the district court's holding that the evidence in this case could support a finding that the conduct McGee complained of was sufficiently severe or pervasive to alter the terms and conditions of her employment was correct. 2. Although it found sufficient evidence that McGee was subjected to a hostile work environment based on her sex, the district court nonetheless granted summary judgment for GM, holding that the company established the Faragher/Ellerth defense. In our opening brief, we emphasized that, because GM had the burden of proving both elements of Faragher/Ellerth's affirmative defense, the company was not entitled to summary judgment unless a jury would be compelled to find both that the company exercised reasonable care to prevent sexual harassment from occurring and to promptly correct any harassment that does occur, and that McGee unreasonably failed to take advantage of GM's corrective opportunities or to otherwise avoid harm. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. GM does not take issue with this standard in its brief, but neither does the company acknowledge it. Instead, GM simply argues this issue as if the Commission bore the burden of proving that GM is not entitled to the Faragher/Ellerth defense. When the issue is analyzed under the proper standard, GM's arguments are clearly inadequate to support the district court's decision. In arguing that it met the first prong of the Faragher/Ellerth defense, GM, like the district court, focuses on the existence of its policy against harassment and its quick response to McGee's July 2002 complaint. GM Br. at 12-13. We pointed out in our opening brief, however, that the first prong of the defense includes a requirement that the employer must prove that it took reasonable steps to prevent workplace harassment, not merely to correct harassment after it has occurred. EEOC Br. at 19-20; see, e.g., Ellerth, 524 U.S. at 765 (emphasis added). We set out four reasons why a jury would not be required to find that GM acted reasonably to prevent harassment. First, we argued that a jury could find that GM's anti-harassment policy was not reasonably calculated to prevent harassment of a temporary employee like McGee because, by its terms, it did not cover temporary employees, and, as a temporary employee, McGee was not given a copy of the policy. EEOC Br. at 27- 28. We noted that McGee testified that she was unsure if the policy covered her and she had to ask general manger Ken Wall if she could use the hotline posted to make a report, or if it was just for union employees. See EEOC Br. at 11 (citing record). GM responds that the company was under no legal obligation to give a temporary employee a copy of its policy, and that Kelly Services gave McGee a copy of Kelly's anti-harassment policy. GM Br. at 13. However, if GM wishes to avail itself of the Faragher/Ellerth defense to harassment of temporary employees by its supervisors, it has a legal obligation to demonstrate that it took reasonable measures to prevent this type of harassment. Because the company regularly employed temporary workers, a jury could find that a policy that fails to clearly prohibit discrimination against temporary workers is inadequate. Moreover, GM's reference to the fact that McGee received a copy of Kelly Services' anti- harassment policy is a red herring. Kelly Services is not a defendant in this case and that company's policy and response are not relevant in any way to the question of whether a jury would be compelled to find that GM acted reasonably in preventing and correcting harassment at its plant by its supervisory employee. GM does not directly respond to the argument that its policy did not cover temporary employees like McGee. Instead, the company argues that the fact that McGee formally complained in July 2002 establishes that she knew GM had a policy prohibiting sexual harassment. GM Br. at 13-14. However, a jury could reasonably credit McGee's testimony that she did not know if GM's policy against sexual harassment applied to her, and conclude that the fact that she was never given a copy of the policy conveyed to her that she was not covered by it. Consequently, a jury would not be obliged to find GM's policy adequate in preventing harassment directed at McGee and other temporary employees. See Faragher, 524 U.S. at 808 (fact that the "City had entirely failed to disseminate its policy against sexual harassment among its beach employees" precluded it from raising affirmative defense to liability). Second, we emphasized in our opening brief that GM's failure to address effectively McBride's past sexual harassment of female employees would permit a jury to reject GM's assertion that it acted reasonably in preventing and correcting harassment. EEOC Br. at 28-29. We argued that a jury could find that the company's failure to adequately address McBride's repeat instances of sexual harassment of other women in the past facilitated his victimization of McGee. Id. at 29. GM's primary response to this argument is to attempt to minimize McBride's past transgressions. According to the company, McBride's inappropriate conduct in 1999 and 2000 constituted "a smattering of boorish acts that it is highly unlikely could be deemed to constitute legally actionable sexual harassment . . ." GM Br. at 16. This is a surprising assertion in light of the fact, noted in our opening brief (EEOC Br. at 9-10) that GM's own human resources officials characterized McBride's behavior as sexual harassment. See, e.g., RE- Tab 7 (ROA-262) (Pursley's October 18, 2000 memo stating that McBride's actions in August 2000 were "not only inappropriate, but represent sexual harassment in the workplace"). See also EEOC Br. at 9-10 (citing other examples of McBride's behavior that could lead to sexual harassment or violated the company's sexual harassment policy). McBride's misdeeds in 2000, again characterized by the defendant as "a smattering of inappropriate comments" (GM Br. at 17), featured, among other things, McBride approaching a woman and sniffing her neck, a fact omitted in the company's brief. See RE-Tab 7 (ROA-262). The memo documenting the incident notes that McBride "offered that he did not see anything wrong with saying, 'I love the way you smell.'" Id. GM also downplays the 2000 pool incident during a training session in Jackson in which McBride, a manager and one of the trainers, drove to the hotel where women employees were using the pool, "approached the pool area from the parking lot, leaned over the fence and asked them to come out of the water so that he could see them in their swimming suits. The women declined and would not get out of the pool until Chuck left the area. The next morning in class, Chuck asked these women in front of other class members why they would not get out of the pool while he was there last night." RE-Tab 7 (ROA- 265). Pursley's memo regarding the incident, discussed in our opening brief (EEOC Br. at 9), states that she reminded McBride that he had been talked to before about this type of behavior and that she "explained to Chuck that his actions and behaviors were wrong and in clear violation of General Motors' sexual harassment policy" and suggested he get counseling. RE-Tab 7 (ROA 265-66). McBride again had trouble understanding that he had done anything wrong. RE- Tab 7 (ROA 266) (McBride "said that he really did not know that anyone had been offended by his behavior."). A reasonable jury could, therefore, reject GM's current attempts to trivialize these incidents as simply a post-hoc rationalization for its unreasonable failure to take effective measures to deal with McBride's chronic misbehavior. As we argued in our opening brief (EEOC Br. at 29-31) the evidence that McBride had repeatedly sexually harassed other women employees in the past, and saw nothing wrong with his behavior, placed a duty on GM to address effectively and monitor vigilantly McBride's subsequent actions toward female employees and impose more severe sanctions when it was clear repeated oral warnings were not working. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998) ("whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or even the same response as before, will be effective. Repeat conduct may show the unreasonableness of prior responses"). Because McBride began preying on McGee her very first day of work, we argued a jury would not be compelled to find that GM's actions to prevent and address harassment at the Brandon plant were reasonable. See EEOC Br. at 29. In fact, a jury could find that the company's failure to take seriously McBride's repeat instances of sexual harassment of other women employees in 1999 and 2000 led directly and predictably to his victimization of McGee as soon as she was assigned to work with him. GM argues that its prompt response to McGee's July 2002 complaint "demonstrates [the policy's] effectiveness." GM Br. at 13. However, a jury could find that the company's prompt action in initiating an investigation of McGee's July complaint after she had been victimized by McBride does not offset the failure to take measures to prevent the harm to McGee by effectively responding to the earlier complaints against McBride. GM disingenuously protests that it was not required to fire McBride for his earlier transgressions to prevail under the Faragher/Ellerth defense, notwithstanding the fact that the Commission did not argue that that was required. GM Br. at 15. Rather, we argued that the company's failure to take any action against McBride, aside from repeated oral warnings, could be viewed by a jury as inadequate. There are many intermediate remedial measures between oral warnings and termination that may have effectively deterred McBride from his pattern of misconduct, including written reprimands and suspensions. This Court should reject GM's argument that a jury would be compelled to find that the series of oral warnings it gave McBride was adequate. "An oral warning or reprimand would be appropriate only if the misconduct was isolated and minor. If an employer relies on oral warnings or reprimands to correct harassment, it will have difficulty proving that it exercised reasonable care to prevent and correct such misconduct." EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), at n.74, available at http://www.eeoc.gov/policy/docs/harassment.html; see also Adler, 144 F.3d at 676 ("Courts have explained that simply indicating to a perpetrator the existence of a policy against harassment is usually insufficient."). Despite his repeated misconduct, McBride was not given "a reprimand, brief suspension, or other remedial steps" that may have ended the harassment. See Hirschfeld v. New Mexico Corrs. Dep't., 916 F.2d 572, 578 n.6 (10th Cir. 1990). A jury could find that GM's failure to meaningfully deter McBride from pursuing female employees even when his conduct was brought to the attention of management conveyed to him that GM was not taking his behavior seriously and that he would be permitted to continue such behavior with impunity. Accordingly, a jury could find such a failure to act unreasonable given the circumstances. GM relies on an unpublished decision of this Court to argue that its actions were reasonable as a matter of law. GM Br. at 17-18 (citing Kreamer v. Henry's Towing, 150 Fed. Appx. 378 (5th Cir. 2005)). However, GM misrepresents the holding of that case. Kreamer does not hold that a series of warnings to an alleged harasser is sufficient remedial action by an employer, as GM contends. Instead, in Kreamer, when it became apparent that warnings to the harasser were not effective, the on-site supervisor transferred the harasser away from the plaintiff. See 150 Fed. Appx. at 383. This Court found the company's decision to discipline and transfer the harasser, rather than fire him, sufficient to meet the requirement that the company's action be reasonably calculated to end the harassment. Id. In examining the reasonableness of the company's actions, Kreamer cites to cases where the harasser was suspended or transferred away from the victim as examples of potentially appropriate action. See id. at 382 (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262-63 (5th Cir. 1999) (harasser suspended one month); Skidmore v. Precision Printing & Packaging, 188 F.3d 606, 615-16 (5th Cir. 1999) (harasser transferred to a shift away from victim)). Here, a jury could find that once it became clear that oral warnings were not ending McBride's inappropriate advances toward female employees, GM was required to take additional steps to prevent future harassment. The district court concluded that GM's response to past complaints about McBride's harassment of female employees must have been effective because in each case, months went by before a new complaint was lodged. We emphasized in our opening brief that a reasonable jury could find that the absence of complaints against McBride does not establish that his behavior changed as a result of GM's warnings. EEOC Br. at 29. On the contrary, McGee testified that, as soon as she arrived at the plant, McBride resumed the same type of behavior he had been warned about in the past. And at least three other women-Stacy Lanthrip, Alice Brooks, and Lashonda Moore-stated that McBride made sexual advances toward them around the same time McGee was being harassed. See EEOC Br. at 7-8 (describing allegations with citations to the record). Third, we argued that a jury could reject GM's assertion that it took reasonable measures to prevent harassment based on supervisor Catherine Rickett's failure to ask any follow-up questions or report to her superiors after McGee told her that she was not comfortable working with McBride. EEOC Br. at 29-30. We emphasized that Rickett herself testified that she was the target of a sexually suggestive comment by McBride. Id. at 6 (citing testimony). Given McBride's past notorious behavior, his immediate, open, and frequent pursuit of McGee that coworkers noticed, and that Rickett had been targeted once for a sexually inappropriate comment, a jury could find that Rickett's response to McGee's confiding in her fell short of reasonable action. GM responds that this argument requires that Rickett "read their employees' minds." GM Br. at 21. However, GM ignores the context surrounding McGee's confession that she felt uncomfortable and mischaracterizes the past sexually charged exchange between McBride and Rickett. McBride did not simply ask Rickett if there was some question Rickett wanted to ask him, as GM maintains. See GM Br. at 21. Instead, Rickett testified that McBride "sort of draped himself on a file cabinet and said, 'I hear you need something from me.' To which I replied, 'Chuck, I will never need anything from you, but I do have a question for you.'" RE-Tab 8 (ROA 429) (Rickett Dep. 71). Rickett herself perceived McBride's comment as sexually "suggestive" and testified that it was his "body language" that was offensive. Id. (Rickett Dep. 72). GM omits these critical facts in characterizing McBride's prior exchange with Rickett as innocuous. Given all the circumstances, a jury could conclude that it was unreasonable for Rickett to simply ignore McGee's expression of discomfort with McBride without at least asking for more details. Finally, we argued that a jury could reject GM's claim of reasonableness based on the company's lack of vigilance in monitoring McBride's behavior notwithstanding his reputation as a lecherous pursuer of female employees. EEOC Br. at 28-29. See Faragher, 524 U.S. at 807 (fact that the defendant's officials made no attempt to keep track of the conduct of its supervisors precluded the city from raising an affirmative defense to liability). GM's only response is to accuse the Commission of failing to cite to the record in support of the contention that McBride's reputation as a harasser was well-known and widespread. See GM Br. at 16 n.3. However, our opening brief cites to ample evidence in the record that provides support for this key point. See EEOC Br. at 7-8; 8-10; 11, 12 & n.3. We emphasized that Joanne Pursley authored memos regarding McBride's 1999 and 2000 transgressions and testified that she knew McBride had "these issues." EEOC Br. at 8-9, 28-30 (citing record). General Manager Ken Wall's response when McGee reported McBride's harassment was "not again." EEOC Br. at 11-12 (citing record). We pointed out that even the Kelly Services employee responsible for assigning temporary employees to the Brandon plant knew McBride's reputation for inappropriate advances, having been targeted herself. EEOC Br. at 12 n.3. Accordingly, GM has no effective response to this argument. 3. Faragher and Ellerth also make the failure of the employee to act promptly and effectively "an equal and indispensable element of this defense." Indest v. Freeman Decorating, Inc., 168 F.3d 795, 801 (5th Cir. 1999). The district court held that this element was met based on the fact that McGee waited two-and- a-half months before lodging a formal complaint about McBride on July 24, 2002. In our opening brief, we emphasized that, during her first few days on the job, McGee's request that she not be assigned to work with McBride because he made her uncomfortable was rebuffed. EEOC Br. at 32. She then filed a formal complaint only two-and-a-half months later. We argued that, under the circumstances, a jury would not be compelled to find that she acted unreasonably in failing to use corrective measures made available by GM. Under this Court's jurisprudence, a two-and-a-half month delay in officially complaining would not compel a jury finding that McGee acted unreasonably. See, e.g., Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999) (four-month delay was reasonable where harassment intensified over time). As in many hostile work environment cases, (see, e.g., Watts, 170 F.3d at 510), McBride's harassment of McGee escalated over time. McGee testified that "the last straw" presented itself in the form of McBride kissing the top of her head. RE-Tab 5 (ROA-170) (McGee Dep. 86-87). That incident prompted her to approach Wall and ask about the hotline number posted and whether she could use it. RE-Tab 5 (ROA-170-71) (McGee Dep. 88-89). Wall, unlike Rickett, asked her follow-up questions and took notes, then followed up with a higher-level supervisor. ROA-174 (McGee Dep. 101-02). GM quotes out of context Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir. 1999), for the proposition that a harassment victim's failure to inform the employer of harassing conduct when given an opportunity constitutes an unreasonable failure to avail herself of the defendant's complaint procedure. See GM Br. at 19. GM also cites Scrivner in support of its argument that McGee's fear of retaliation or lack of action by GM does not negate the Faragher/Ellerth defense and would allow plaintiffs always to circumvent the requirement that they utilize an employer's anti-harassment procedures. See id. at 20. But Scrivner presented a factual scenario bearing no resemblance to this case. In Scrivner, the plaintiff was harassed for eight to nine months without any complaint. 169 F.3d at 971. When the employer received an anonymous letter about the harasser's behavior and initiated an investigation, the plaintiff "chose to lie, reporting that she had not witnessed any sexually harassing conduct and that he treated her 'professionally.'" Id. Four months after the investigation, the plaintiff complained she was the victim of harassment. Id. at 970. This Court refused to "sanction such deceptive conduct" and ruled that the plaintiff acted unreasonably, and also "thwarted the purposes of Title VII and frustrated [the defendant's] efforts to remedy past misconduct and prevent future harassment by [the harasser]." Id. at 972. In contrast, McGee told her supervisor her first week on the job that she felt uncomfortable working with McBride and asked if she had to work with him. See EEOC Br. at 6 (citing record). We pointed out in our opening brief that a jury could find McGee's failure to elaborate on the cause of her discomfort reasonable given the situation-she was a new temporary employee worried about losing her job, and also feared McBride. EEOC Br. at 5, 14, 24-25, 32-34. Cf. Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989), vacated on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc) (harasser's "sexual overtures might reasonably produce strong reactions of fear and intimidation because [the harasser] held a superior position to [the plaintiff's] in the company and perhaps even exercised supervisory authority over her"). McGee testified that she had heard that other temps who complained had lost their jobs. See EEOC Br. at 7 (citing record).<3> Because McGee came forward immediately to express her concern about McBride, albeit implicitly, then waited only two-and-a-half months to give a detailed complaint, and because that delay was understandable given her status and relationship to the harasser, a jury would not be compelled to find that she acted unreasonably. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,411 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov Dated: March 18, 2008 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format, this 18th day of March, 2008, by First Class Mail, postage pre-paid, to the following counsel of record: David C. Vogel LATHROP & GAGE L.C. 2345 Grand Boulevard Kansas City, MO 64108 Saundra Brown Strong PHELPS DUNBAR 111 East Capitol Street Suite 600 Jackson, MS 39201 Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> GM quibbles with the Commission's characterization of the evidence of harassment as "undisputed," noting that McBride denied that he engaged in any of the conduct described by McGee and other witnesses. See GM Br. at 24 & n.5. However, the company has never contended that McGee's testimony recounting McBride's behavior is untrue. According to Joanne Pursley, GM's personnel administrator, when first confronted with McGee's statement, McBride responded that it was all "lies." ROA 222 (Pursley Dep. 93). However, when McBride was read McGee's detailed statement, he had a nervous breakdown, was taken from the plant by ambulance, and never returned to work. ROA-222 (Pursley Dep. 94). This does not suggest there is any factual dispute about McBride's offending behavior. <2> The court of appeals distinguished Harvill's allegations from Hockman's; the court noted that Hockman alleged that the harasser "would sort of brush up against [her]" but admitted that the "brushings were neither severe nor pervasive" and that she did not protest because these incidents happened so quickly. See Harvill, 433 F.3d at 438 n.2 (citing Hockman, 407 F.3d at 326). <3> GM states that the Commission's brief does not support this contention with a citation to the record. See GM Br. at 20 n.4. GM is again mistaken. See EEOC Br. at 7, 32.