IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 04-40418 MOLLY HARVILL, Plaintiff-Appellant, v. WESTWARD COMMUNICATIONS, L.L.C., et al., Defendants-Appellees. On Appeal from the United States District Court for the Eastern District of Texas Brief of the Equal Employment Opportunity Commission as Amicus Curiae in support of Plaintiff-Appellant and Reversal ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 TABLE OF CONTENTS STATEMENT OF INTEREST.....................................1 STATEMENT OF JURISDICTION .................................2 STATEMENT OF THE ISSUE ................................... 2 STATEMENT OF THE CASE .................................... 3 1. Nature of Case and Course of Proceedings Below .. 3 2. Statement of Facts ............................3 3. Opinion below ....................................9 SUMMARY OF ARGUMENT .......................................11 ARGUMENT ..................................................14 PLAINTIFF CREATED A GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER SEXUAL HARASSMENT BY A CO-WORKER CREATED A HOSTILE WORK ENVIRONMENT AND AS TO WHETHER THE DEFENDANT, AFTER LEARNING OF THAT HARASSMENT, FAILED TO TAKE PROMPT REMEDIAL ACTION .......................................14 A. The district court applied an incorrect legal standard in analyzing whether Rogers' harassment created a hostile working environment ................................15 B. The district court erred in concluding that Harvill's testimony lacked sufficient detail to permit a reasonable jury to find that Rogers' harassment created a hostile work environment .............. 18 1. Harvill provided sufficient evidence to create a genuine issue of fact regarding the severity of Rogers' harassment ......................19 2. Harvill provided sufficient evidence to create a genuine issue of fact regarding the pervasiveness of Rogers' harassment ................21 3. Harvill does not have to state precisely the number of times Rogers harassed her to show that she suffered a hostile work environment .............23 C. The district court erred in concluding that Harvill failed to provide sufficient evidence to permit a reasonable jury to find that, after Westward had knowledge of Rogers' harassment, the company failed to take prompt remedial action .....25 CONCLUSION ...................................................31 CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES Cases Page(s) Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ............. 10 Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994) ........ 23 DiCenso v. Cisneros, 96 F.3d 1004 (7th Cir.1996) ..................... 17 Eich v. Board of Regents for Cent. Missouri State University, 350 F.3d 752 (8th Cir. 2003) .................................... 20 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) ....................... 16 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...................18, 19 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996) ...25, 26 Harris v. Carrolton, 2002 WL 31697726 (N.D. Tex. Nov. 27, 2002) .......................22, 23 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) .........15, 18, 21, 24, 25 Hathaway v. Runyon,, 132 F.3d 1214 (8th Cir. 1997) .................17 Hatley v. Hilton Hotels Corp., 308 F.3d 473 (5th Cir. 2002) ...........20 Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777 (10th Cir.1995) .................................20 Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000) .......................15, 17, 22 Hurley v. Atlantic City Police Dept., 174 F.3d 95 (3d Cir. 1999) ....................29 Jin v. Metropolitan Life Ins. Co., 310 F.3d 84 (2d Cir. 2002) ............16 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) ................17, 20 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) ....................17, 21 Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426 (2d Cir.1999) .................................24 Shanoff v. Illinois Dept. of Human Services, 258 F.3d 696 (7th Cir. 2001) ...............................24 Sims v. Health Midwest Physician Services Corp., 196 F.3d 915 (8th Cir. 1999) ..............................30 Teply v. Mobil Oil Corp., 859 F.2d 375 (5th Cir. 1988) .........18, 26 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) ....................23 Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989) .........14, 18, 20 West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995) ............24 Williamson v. City of Houston, Texas, 148 F.3d 462 (5th Cir. 1998) ............................29, 30 Wilson v. Southern Nat'l Bank of North Carolina, Inc., 900 F. Supp. 803 (W.D.N.C. 1995) ....................16 Wilson v. Tulsa Junior College, 164 F.3d 534 (10th Cir. 1998) ...........................30 Woods v. Delta Beverage Group, Inc., 274 F.3d 295 (5th Cir 2001) ..........................14, 25, 27, 28 Worth v. Tyer, 276 F.3d 249 (7th Cir. 2001) ........................16, 17, 20 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ....................1 Fair Labor Standards Act, 29 U.S.C. 201 et seq. .....................3 Miscellaneous 29 C.F.R. 1604.11(d) .........................................25 EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, at C, 2) ...........................................15 EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, N-915.002, at V,C,1,e,iii ..................27 Random House Webster's Unabridged Dictionary 1331 (2d ed. 1998) ..........21 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 04-40418 MOLLY HARVILL, Plaintiff-Appellant, v. WESTWARD COMMUNICATIONS, L.L.C., et al., Defendant-Appellees. On Appeal from the United States District Court for the Eastern District of Texas Brief of the Equal Employment Opportunity Commission as Amicus Curiae in support of Plaintiff-Appellant and Reversal STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged with the enforcement, interpretation and administration of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"). This case raises issues regarding the analysis of a Title VII claim of sexual harassment by a co-worker. The Commission believes that the district court erroneously held: 1) that the plaintiff was required to present evidence that the sexual harassment was both sufficiently severe and sufficiently pervasive to create a hostile work environment, 2) that the plaintiff's evidence of sexual harassment was too conclusory to permit a reasonable jury to find that she suffered a hostile environment, and 3) that the plaintiff failed to show that, after she informed the defendant of the harassment, the defendant failed to take prompt remedial action. Because of the importance of these issues to the Commission's effective enforcement of Title VII, we offer our views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF JURISDICTION The Commission defers to the jurisdictional statements of the parties. STATEMENT OF THE ISSUE Whether, in granting summary judgment for the defendant, the district court erred in concluding that the plaintiff failed to create a genuine issue of material fact as to whether sexual harassment by a co-worker created a hostile work environment and as to whether the defendant, after learning of that harassment, failed to take prompt remedial action. STATEMENT OF THE CASE 1. Nature of Case and Course of Proceedings Below. This is an appeal from a final judgment dismissing this action. RE. at 39. The plaintiff alleged, inter alia, that she was sexually harassed by a co-worker in violation of Title VII. The district court granted summary judgment to the defendant on the basis that the plaintiff's testimony that the harasser touched her breasts and buttocks "numerous" times was too conclusory to raise a genuine issue of material fact as to whether the conduct was sufficiently severe and pervasive to create a hostile work environment. RE. at 26-27. Alternatively, the court held that the plaintiff failed to show that she took advantage of the defendant's alternative corrective measure which permitted the plaintiff to take her complaint to the defendant's Human Resources Director if the plaintiff was dissatisfied with her supervisor's response. The plaintiff filed a timely notice of appeal on March 30, 2004. RE. at 28-29. 2. Statement of Facts. In January 2001, Molly Harvill began working for defendant, Westward Communications ("Westward"), as an office manager for the Grand Saline Sun, one of several newspapers owned and operated by Westward. RE. at 41, 2. Harvill's direct supervisor was Nell French, the Sun's publisher. Doc. no. 31 (Westward's motion for summary judgment), Exh. 2, p. 6 (French's deposition). Oscar Rogers operates a commercial printing press in the back of the Sun office. Id. Harvill stated that Rogers began sexually harassing her sometime in July 2001. Shortly after Rogers returned from vacation, Harvill walked back to his area to give him some messages and Rogers "came over and grabbed ahold of [her]." Doc. no. 31, Exh. 4, p. 82 (Harvill's deposition). Despite her attempt to avoid his grasp by "turn[ing] to the side," Rogers "kissed [her] on the cheek." Id. Harvill stated that she "said 'Oscar,'" and "pushed herself back." Id. Rogers also "fondled" Harvill's breasts and "patted [her] on the behind." Id. at 90; RE. at 42, 6. Although she did not recall the date on which Rogers first touched her breasts, Harvill said it happened "in the hallway leading to the front office back to where the ladies' room . . . is." Doc. no. 31, Exh. 4, p. 90-91. Harvill explained that she "was standing there," and Rogers' "hand went up like that," demonstrating how he "touched [her] with his hand." Id. at 92. When asked whether Rogers grabbed her breasts or just brushed against them, Harvill answered: "He touched my breasts with his hand just like I showed you." Id. Although Rogers said he was sorry on one occasion, Harvill was certain "that he had touched [her] breast on purpose." RE. at 42, 6. Harvill stated that, each time he did this, she told him to stop, but to no avail. Doc. no. 31, Exh. 4, p. 93. Harvill did not recall the "exact number of times," Rogers touched her breasts. RE. at 42, 6. However, she stated that he did so "many times, beginning in July, 2001 and continuing until February, 2002." Id. Harvill stated that, because Rogers did "other things," she was not sure that he touched her breasts "once a week," but that it may have been that often. Doc. no. 31, Exh. 4, p. 92-93; RE. at 42, 6. Harvill testified that "more than once, numerous of times," Rogers "would . . . pat [her] on the behind," and that this happened in the "layout room." Doc. no. 31, Exh. 4, pp. 93-95. Again Harvill could not state the exact number of times, but stated that, between July 2001 and February 2002, "it was several, and it was clear that it was intentional." RE. at 42, 7. Harvill also stated that Rogers shot rubber bands at her, often aiming them at her breasts. RE. at 42, 5. Ladonna Hockman, who was the editor of the Sun, stated that Rogers also harassed her. RE. at 49-50, 1 & 4. She stated that, soon after she started, Rogers told her that another female employee had "a nice behind and body," and, "on more than one occasion," Rogers suggested to Hockman that she arrive early so they "could be alone together." RE. at 50-51, 4 & 9. Hockman stated that Rogers "slap[ped]" and "grabbed" her behind and "grabbed" her breasts. RE. at 50, 6 & 7. Although she did not recall the exact number of times Rogers touched her in this manner, Hockman stated that it "happened many times." Id. at 50, 7. Westward has a policy addressing sexual harassment which states that an employee must report sexual harassment "to his/her immediate supervisor," and further that "[i]f the employee feels that it would be inappropriate to report the matter to the immediate supervisor, or the matter is not satisfactorily resolved at this level, the employee should report the incident(s) directly to the Director, Human Resources." Doc. no. 31, Exh. 9 (Employee Handbook). Harvill stated that, on October 11, 2001, she and Hockman reported Rogers' conduct to French. RE. at 43, 10 & 11. According to Harvill, French asked what Harvill wanted her to do, and Harvill replied "You need to do whatever your job requires you to do." Doc. no. 31, Exh. 4, p. 100. Harvill stated, however, that she "received no relief from [Rogers'] actions." RE. at 43, 12. Instead, Rogers continued "frequently" to "touch" Harvill's "breasts and behind" even though Harvill told French "on two or three additional occasions" that she was still being harassed. Id. at 43-44, 13 & 16. According to French, Harvill only told her that Rogers had attempted to kiss her once and that he had brushed against her breasts, but had apologized. Doc. no. 31, Exh., 2, pp. 60-61. (French deposition excerpts). French stated that she did not speak to Rogers about the allegations, but that she spoke to some former and current employees who denied being harassed by Rogers. Doc. no. 31, Exh. 2, pp. 74 & 62-64. Based on this information, French concluded that Harvill's complaints were unfounded. Doc. no. 31, Exh. 3, 7 (French affidavit). French did not deny that she refused to take any action to stop Rogers' harassment, even though she had the authority to place limits on Rogers' contact with Harvill. Doc. no. 31, Exh. 2, p. 51. French explained that she took no action because Harvill told French that she did not want to file a formal complaint against Rogers, which Harvill denies. Doc. no. 31, Exh. 2, pp. 80-81, 95; Exh. 3, 9; RE. at 44, 14. In fact, Harvill stated that she "was never hesitant about filing a formal complaint against" Rogers. RE. at 44, 14. Furthermore, French admitted that she had a duty to "help assure" that harassment did not occur, even if a victim did not make a formal complaint. Doc. no. 31, Exh. 2, pp. 58-59. On February 19, 2002, Westward received a letter containing a draft copy of Harvill's charge of discrimination. Doc. no. 31, Exh. 1, 6 (Fisher affidavit). Shortly thereafter, Westward's Director of Human Resources, Gina Fisher, began to investigate Harvill's allegations. Id. Fisher, unlike French, informed Rogers of the allegations, which he denied. Id. at 8. Moreover, Fisher gave Rogers a memorandum forbidding him from having any communication with Harvill until the investigation was complete, telling him to go through French or other employees if he needed to deal with Harvill, and instructing Rogers to use the building's back door and to keep the door between the printing press and the front office closed at all times. Id. at 11; Doc. no. 31, Exh. 18 (February 27, 2002 memorandum). It is undisputed that Rogers' harassment ceased after Fisher issued these instructions. Doc. no. 31, Exh. 4, pp. 108-09. Fisher determined that Harvill's allegations were "inconclusive," because Rogers had denied the allegations and no other employee, except Hockman, had corroborated Harvill's claims. Doc. no. 31, Exh. 1, 16. Fisher informed both Rogers and Harvill of her decision. Id. at 15 & 16. However, Fisher told Rogers that sexually inappropriate activity was "strictly prohibited" and warned him not to "engage in physical contact in the form of hugs, arm around the shoulder or the like." Id. at 15. Additionally, Fisher instructed Rogers to "keep his contact with Harvill infrequent" and to continue to go through other employees as he had been instructed earlier. Id. On April 9, 2002, Harvill sent a letter to Westward resigning her employment because of health problems resulting from Rogers' harassment. Doc. no. 31, Exh. 23. Harvill brought this action against Westward alleging, inter alia, sexual harassment. Doc. no. 1. The district court granted summary judgment for Westward on March 25, 2004. RE. at 39. 3. Opinion below. The district court granted summary judgment for Westward on two grounds. First, the court concluded that Harvill failed to present enough evidence to show that she was subjected to a hostile work environment. RE. at 25-28. Specifically, the court concluded that shooting a rubber band, "even if aimed at Harvill's breasts," is "simple teasing or roughhousing rather than sexually severe and pervasive conduct." Id. at 26-27. The court also concluded that Harvill's testimony regarding "numerous touchings or fondlings" and "numerous butt grabbings," without "any details," were "too conclusory" to create an issue of material fact because a fact finder would be unable to determine the "totality of the circumstances" required to determine whether the conduct was "severe and pervasive." Id. at 26-28. The district court's second basis for granting summary judgment was that Harvill did not offer sufficient evidence to show that Westward, once on notice, failed to take prompt remedial action. RE. at 28-29. The court noted that, although this case did not involve harassment by a supervisor, the "second prong" of the affirmative defense established in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998), is "instructive" as to co-worker harassment. RE. at 28. The court reasoned that Harvill had not shown "that she reasonably took advantage of the corrective opportunities provided by her employer." Id. The court stated that French's investigation in October 2001, which found that her allegations "lacked merit . . . apparently displeased [Harvill]," and concluded that Harvill "did not act reasonably" in failing to take her complaint to Fisher as provided in Westward's policy. Id. at 29. Consequently, the court concluded, Harvill cannot establish that Westward did not take "prompt remedial measures." Id. The court noted further that, because the harassment stopped when Harvill eventually took her complaint to Fisher, Harvill cannot show that Westward failed to act promptly to correct any sexual harassment. Id. SUMMARY OF ARGUMENT The district court erred in concluding that Harvill failed to offer sufficient evidence to raise a genuine issue of fact as to whether Rogers' sexual harassment was sufficiently severe or pervasive to create a hostile work environment and whether Westward took prompt remedial action once Harvill complained to her supervisor. The court legally erred by requiring Harvill to show that the harassment was both severe and pervasive. The Supreme Court unmistakably has held that harassment violates Title VII where it is sufficiently severe or pervasive to create a hostile work environment. Consequently, a plaintiff can establish a hostile workplace by showing that the conduct was severe, even if infrequent. Moreover, courts have recognized that there is an inverse relationship between the severity and frequency of harassment and regularly have held that only a few instances of unwanted contact with an intimate body part may be enough to permit a reasonable jury to find a hostile environment. The district court also misapplied the standards for determining whether the conduct in this case was sufficiently severe or pervasive to be actionable. Contrary to the district court's view, Harvill's testimony was sufficiently specific to create a triable issue of fact regarding the severity of Rogers' conduct. Harvill testified that Rogers forcibly kissed her and explained how Rogers deliberately touched her breasts and patted her buttocks. Harvill also testified that Rogers's contact was not accidental or insignificant, but that he deliberately and intentionally touched her breasts and buttocks with his hand. A reasonable jury could find from this evidence that Rogers' behavior was sufficiently severe to have created a hostile work environment. Harvill's testimony also would permit a reasonable jury to find that Rogers' conduct occurred frequently enough to have created a hostile workplace, especially because Rogers fondled Harvill's intimate body parts. First, contrary to the district court's view, Harvill's use of the words "numerous," "many times," and maybe "once per week," in this case to describe the frequency of Rogers' conduct does not lack specificity. Moreover, Harvill's other testimony shows that Rogers repeatedly engaged in intentional, unwelcome physical contact with intimate parts of Harvill's body. Even when not repeated, such egregious conduct has been held to be sufficiently severe to create a triable issue. Consequently, a reasonable jury could come to the same conclusion when, as in this case, such egregious conduct occurred numerous times. The district court also erred in concluding that Harvill did not present sufficient evidence for a reasonable jury to find that, once on notice of the harassment, Westward failed to take prompt remedial action. In keeping with company policy, Harvill, in October 2001, told French, her immediate supervisor, about Rogers' harassment. However, French admits that she did nothing to curtail Rogers' behavior and that she took no action when Harvill told her that Rogers' harassment was continuing. Indeed, French did not even discuss Harvill's allegations with Rogers. Based on this evidence, a reasonable jury could find that Westward had notice, but failed to take prompt remedial action. The district court misapplied this Court's legal standards in deciding that Harvill did not give Westward notice of the alleged harassment because she did not take her complaint to the Director of Human Resources when French did not satisfactorily resolve Harvill's complaint. This Court has expressly held that notice to a supervisor, who was authorized to receive notice of harassment complaints, is sufficient and that an employer cannot avoid liability by requiring a harassment victim to provide notice beyond that required by law. In this case, Harvill notified French, the person Westward had designated to receive such complaints, and, consequently, Westward cannot rely on its own policy to place an additional burden on Harvill. ARGUMENT PLAINTIFF CREATED A GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER SEXUAL HARASSMENT BY A CO-WORKER CREATED A HOSTILE WORK ENVIRONMENT AND AS TO WHETHER THE DEFENDANT, AFTER LEARNING OF THAT HARASSMENT, FAILED TO TAKE PROMPT REMEDIAL ACTION. To avoid summary judgment, Harvill need only "provide evidence that raises a genuine issue of material fact concerning each element of her prima facie case." Waltman v. International Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989). In a coworker sexual harassment case, those elements are that the plaintiff belongs to a protected group, was subjected to unwelcome harassment because of her sex that affected a term or condition of employment, and that the employer knew or should have known of the harassment, but failed to take prompt remedial action. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir 2001). As the district court noted, Westward contests only two of these factors: whether the harassment affected a term or condition of employment and whether Westward knew of the harassment, but failed to take corrective action. RE. at 24. The district court erroneously concluded that Harvill failed to present sufficient evidence to raise a genuine issue of material fact as to both of these elements. The court improperly analyzed the issue of whether the harassment in this case was sufficient to create a hostile work environment because the court applied the legal standards incorrectly in analyzing whether Harvill had raised a triable issue of fact about the severity or pervasiveness of the alleged harassment in this case. Additionally, the court erred in concluding that Harvill did not show that Westward failed to take prompt remedial action because she did not use the company's "bypass" procedure when Harvill's complaint to her immediate supervisor did not stop the harassment. A. The district court applied an incorrect legal standard in analyzing whether Rogers' harassment created a hostile working environment. The district court made a serious legal error by requiring Harvill to show that Rogers' harassment was so "severe and pervasive" that it altered the terms and conditions of her employment." RE. at 25 (emphasis added). The district court cited Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), for this proposition. Id. However, a careful reading of Harris makes clear that the Supreme Court placed no such burden on a Title VII the plaintiff. Rather, the Court held that "[w]hen 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.'" Harris, 510 U.S. at 21 (emphasis added) (internal citations and quotations omitted); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) ("Harassment need not be severe and pervasive to impose liability; one or the other will do.") (original emphasis). Consequently, contrary to the district court's view, a plaintiff can establish a hostile environment by showing that she was subject to severe harassment, even if it did not occur frequently. The Commission and courts have recognized that there is an inverse relationship between the severity of the conduct and its frequency. EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, at C, 2) ("the more severe the harassment, the less need to show a repetitive series of incidents"); accord Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (the required showing of severity . . . of the harassing conduct varies inversely with the . . . frequency of the conduct"); Wilson v. Southern Nat'l Bank of North Carolina, Inc., 900 F. Supp. 803, 809 (W.D.N.C. 1995) ("Severity and pervasiveness are in an inverse ratio the more pervasive the conduct, the less severe it need be to be actionable."). At least one court of appeals has held that "even one act of harassment" will create a hostile environment "if it is egregious," and that "direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment." Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001). Accordingly, courts routinely have concluded that only a few instances of unwanted intimate contact may suffice to raise a triable issue regarding a hostile work environment. See Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 89 (2d Cir. 2002) (harassment of plaintiff included such severe and extreme conduct as intimate physical touching); Worth, 276 F.3d at 268 (jury verdict upheld where, of "several touching incidents, one involved Tyer touching an intimate body part--Worth's breast"); Hostetler, 218 F.3d at 809 (forcibly kissing plaintiff and unfastening snaps on her bra "unquestionably is harassing" conduct); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (grabbing plaintiff's "hair and breast" one time was "severe enough to create an actionable hostile work environment"); Hathaway v. Runyon, 132 F.3d 1214, 1217 (8th Cir. 1997) (two actions by co-worker hitting plaintiff on buttocks with a clipboard and a week later "squeez[ing] her buttocks were sufficient for jury to find a hostile environment); Paroline v. Unisys Corp., 879 F.2d 100, 103 & 105 (4th Cir. 1989) (factual question remained as to existence of hostile environment where, on one occasion, harasser kissed plaintiff, attempted to hold her hand and rubbed his hands up and down her back); cf. DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir.1996) (holding conduct not severe because, among other things, defendant "did not touch an intimate body part"). B. The district court erred in concluding that Harvill's testimony lacked sufficient detail to permit a reasonable jury to find that Rogers' harassment created a hostile work environment. The Supreme Court has held that, in deciding whether an environment is sufficiently hostile, courts must look "'at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998), quoting Harris, 510 U.S. at 22-23 ; see also Waltman, 875 F.2d at 477. In this case, the district court concluded as a matter of law that Rogers' conduct was not actionable. The district court simply stated that, because Harvill offered no "details" regarding Rogers' behavior, her statement that his actions occurred "numerous" times was "too conclusory" to create an issue of fact. RE. at 26-27. The district court did not explain what additional details would be necessary to show that Rogers' conduct created a hostile working environment. Contrary to the district court's view, Harvill's version of the facts, which must be taken as true for purposes of this appeal, provides enough detail regarding the severity and frequency of Rogers' actions to permit a reasonable jury to assess whether his behavior created a hostile working environment. See Teply v. Mobil Oil Corp., 859 F.2d 375, 377 (5th Cir. 1988) ("[b]ecause this is an appeal from summary judgment, we accept the version of the facts set forth in opposition to the motion for summary judgment"). 1. Harvill provided sufficient evidence to create a genuine issue of fact regarding the severity of Rogers' harassment. Harvill's statements about Rogers' conduct are detailed and specific enough to support a jury finding that she was subjected to severe harassment. In July 2001, Rogers grabbed Harvill and forcibly kissed her against her will. Rogers also began to "fondle" Harvill's breasts. Additionally, Rogers' conduct was deliberate, not accidental, and was not isolated. Rather, Harvill demonstrated how Rogers intentionally touched her breasts and testified that he did so "many times" between July 2001 and February 2002, and perhaps as often as once a week. Likewise, on "numerous" occasions, Rogers intentionally would "pat [her] on the behind." Harvill's testimony is buttressed by Hockman's testimony that Rogers harassed her in a similar fashion. A reasonable jury could find from the evidence that Rogers' repeated and intentional grabbing of Harvill's breasts and buttocks created a hostile working environment. See Faragher, 524 U.S. at 782 (where harasser "repeatedly touched the bodies of female employees without invitation" and would place his "hand on [plaintiff's] buttocks," court of appeals had "no trouble concluding that [the] conduct . . . was severe and pervasive enough to create an objectively abusive work environment"); Waltman, 875 F.2d at 477 (reversing summary judgment for defendant where harasser "[o]n several occasions . . pinched [plaintiff's] buttocks with pliers and tried to put his hands in her back pockets"); Eich v. Board of Regents for Cent. Missouri State University, 350 F.3d 752, 758 (8th Cir. 2003) ("numerous touchings" over seven years, including pressing "his groin area" into the plaintiff's shoulder "several" times sufficiently severe or pervasive to establish a hostile work environment); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 780-83 (10th Cir.1995) (genuine issue of material fact as to whether plaintiff was subject to hostile work environment existed where she stated that harasser "attempt[ed] to touch her breast" and "grabbed [her] between the legs"); Lockard, 162 F.3d at 1072 (one-time incident where harasser grabbed plaintiff's "hair and breast" was "severe enough to create an actionable hostile work environment"); Worth, 276 F.3d at 268(concluding that "touching an intimate body part [plaintiffs'] breast ... constitutes one of the most severe forms of sexual harassment"); Hatley v. Hilton Hotels Corp., 308 F.3d 473, 475 (5th Cir. 2002) (JMOL for defendant reversed where plaintiffs testified, inter alia, as to "repeated inappropriate touching"). Harvill's testimony also dispels any doubt that Rogers' conduct was "trivial" or that he may have accidentally brushed against her as might occur in a confined area. See Paroline, 879 F.2d at 105 (kissing plaintiff, attempting to hold her hand and rubbing his hands up and down her back were not "trivial"). Instead, Harvill testified that Rogers deliberately and repeatedly groped her sexually. For example, Harvill testified that Rogers intentionally reached up and "touched [her breast] with his hand," and that he deliberately placed his hand on her bottom. Based on this testimony, a reasonable jury could find that Rogers' behavior constituted the type of "physically threatening or humiliating" conduct that the Supreme Court held is actionable under Title VII. Harris, 510 U.S. at 23. 2. Harvill provided sufficient evidence to create a genuine issue of fact regarding the pervasiveness of Rogers' harassment. Harvill's description of the frequency of Rogers' actions would permit a reasonable jury to find that his behavior was sufficiently pervasive to create a hostile environment, especially because Rogers' harassment grabbing Harvill's breast and buttocks involved intimate body parts. The district court concluded that Harvill's allegations of harassment were too conclusory because she simply described Rogers' actions as "numerous." To the contrary, the district court's belief that the word "numerous" lacks sufficient specificity makes no sense in this case. First, numerous is defined as "very many; being or existing in great quantity." Random House Webster's Unabridged Dictionary 1331 (2d ed. 1998). Moreover, Harvill gave other descriptions of the frequency of the alleged harassment. She stated that Rogers' touched her breasts and buttocks "many times," "more than once," "several times," and perhaps as often as "once per week." Thus, Harvill consistently testified that Rogers repeatedly engaged in unwelcome contact of the most egregious kind. Where, as noted above at 16-17, courts have concluded that a reasonable jury could find such behavior actionable, even "without the added weight of repetition," Hostetler, 218 F.3d at 808 -809, there can be little doubt that a reasonable jury could reach the same result where, as here, the conduct occurred on "numerous" occasions. In concluding that Harvill's claim could not survive summary judgment, the district court relied on Harris v. Carrolton, 2002 WL 31697726 (N.D. Tex. Nov. 27, 2002), but the facts of that case are totally inapposite to those here. RE. at 27. In Harris, the district court considered the defendant's evidence as undisputed because the plaintiff failed to respond to the defendant's motion for summary judgment. Id. at *2. Indeed, the court did not have before it plaintiff's deposition testimony or any other sworn statement by plaintiff about the alleged harassment. The district court had before it only the allegation in the plaintiff's complaint which stated that she "was subjected to numerous sexually explicit comments and actions from [the harasser]." Id. at *3. The district court concluded that this allegation was too "conclusory" to permit a jury "to weigh the totality of the circumstances in which his remarks were made," and that there was no evidence "that either [the harasser's] conduct or remarks were of an extreme nature so as to affect a term or condition of Harris' employment." Id. In contrast, in this case, Harvill responded to the motion for summary judgment with specific, sworn descriptions of the alleged harassment and of the frequency of its occurrence. 3. Harvill does not have to state precisely the number of times Rogers harassed her to show that she suffered a hostile work environment. In support of its argument that Harvill's evidence of harassment was insufficient, Westward argued below that she could not state the "exact number of times" Rogers harassed her. Doc. no. 31, pp. 19-20. Of course, any lack of specificity in Harvill's testimony goes only to the weight of the evidence and not to whether a jury could find a hostile environment if it credited Harvill's testimony that Rogers repeatedly touched her breasts and buttocks. See, e.g., Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (inability to recall exact dates and circumstances of harassment may make it difficult to convince a jury, but cannot defeat claim as a matter of law); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (even though plaintiff was unable to recite supervisor's specific comment on each occasion, there was sufficient evidence in the record to escape summary judgment). Further, Harvill's inability to give an exact count provides no basis for granting summary judgment to the defendant. In Harris, the Supreme Court concluded that there is no "mathematically precise test" for deciding whether an environment is hostile. Harris, 510 U.S. at 17, 22. Consequently, "there is no 'magic number' of incidents that gives rise to a cause of action." Shanoff v. Illinois Dept. of Human Services, 258 F.3d 696, 704 (7th Cir. 2001); Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 439 (2d Cir.1999) (same); West v. Philadelphia Elec. Co., 45 F.3d 744, 757 (3d Cir. 1995) (same). In fact, in Richardson, the court of appeals warned against relying on the frequency of conduct in previous cases as a benchmark for what is actionable in a given case because "there is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson, 180 F.3d at 439 ("appalling conduct alleged in prior cases should not be taken to mark the boundary of what is actionable") (internal citations and quotation marks omitted). Rather, because "no single factor is required," the inquiry should be whether a reasonable factfinder, looking "at all the circumstances" of the case in question, could find that the conduct was sufficiently severe or pervasive to create a hostile work environment. Harris 510 U.S. at 23. Consequently, the fact that Harvill could not state exactly how many times Rogers groped her private parts does not entitle Westward to summary judgment. C. The district court erred in concluding that Harvill failed to provide sufficient evidence to permit a reasonable jury to find that, after Westward had knowledge of Rogers' harassment, the company failed to take prompt remedial action. An employer is liable for sexual harassment by a co-worker where the employer knows of the harassment, but fails to take prompt remedial action. Woods, 274 F.3d at 298; 29 C.F.R. 1604.11(d) (employer is liable for sexual harassment of which it has knowledge, "unless it can show that it took immediate and appropriate corrective action"). Where the defendant has been informed of the harassment, but "[n]othing . . . was done," there has not been prompt remedial action. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 807-08 (5th Cir. 1996). In accordance with Westward's policy, Harvill reported Rogers' conduct to French, her "immediate supervisor," on October 11, 2001. French did nothing to stop Rogers' harassment (such as by limiting Rogers' contact with Harvill), despite the fact that she had the authority to do so. Moreover, even after Harvill reported to French that Rogers' harassment was continuing, French took no corrective action. Because there is evidence that Harvill told French about the harassment, and that French failed to take "any steps to remedy the situation," a reasonable jury could find that Westward failed to take "prompt remedial action." Farpella-Crosby, 97 F.3d at 808 French stated that her investigation failed to substantiate Harvill's allegations and that she took no action because Harvill did not want to file a formal complaint against Rogers. However, Harvill denied that she told French that she did not want to file a complaint and, because this is an appeal from a grant of summary judgment, the court was required to accept Harvill's version. Teply, 859 F.2d at 377. The district court concluded that Harvill did not present sufficient evidence that Westward failed to take prompt remedial action. First, the district court erred by failing to look at the evidence in Harvill's favor. The court stated that French's investigation of Harvill's allegations determined that they "lacked merit," a decision that "apparently displeased" Harvill. However, viewed properly, in Harvill's favor, the facts show that French never even spoke to Rogers, the alleged harasser. French also never said anything to Harvill either as to whether she had investigated Harvill's allegations or that those allegations could not be substantiated. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, N-915.002, at V,C,1,e,iii (once investigation is complete, "[t]he parties should be informed of the determination"). As far as Harvill knew, French never investigated Harvill's complaints and there is no dispute that French never took any action to stop Rogers' harassment. The district court concluded that Harvill's own "unreasonable actions" prevented her from showing that Westward failed to take prompt remedial action in response to her complaints, relying on Woods, 274 F.3d at 300 n.3. The district court's reliance on Woods is misplaced. In that case, two of the employer's district managers investigated the plaintiff's allegations of sexual harassment on July 7, 1998, one day after the plaintiff complained, and immediately informed the harasser that his conduct was inappropriate and that further such conduct would result in disciplinary action, including termination. Id. at 297-98. The managers also told the plaintiff that she should notify them immediately if the harasser engaged in any inappropriate action. On July 8, one of the managers called to ask the plaintiff if she was satisfied with the way the situation was handled and whether she had experienced further problems with the harasser. The plaintiff told the manager that she had not had any problems with the harasser. Id. The plaintiff subsequently alleged that she was harassed after July 8. The court of appeals held that the plaintiff had an obligation to report the harassment that occurred after the defendant had taken corrective action and that her failure to do so was fatal to her case, because the defendant could not be held liable for conduct of which it had no knowledge. Id. at 299-300. In contrast, this case does not involve a situation where the employer took immediate corrective action, but the victim failed to inform the employer that the harassment had not ceased. In fact, here, French admittedly never took any action to stop Rogers' harassment. Moreover, unlike in Woods, Harvill told French that the harassment was continuing and French still did nothing. Consequently, contrary to the district court's view, Woods provides no support for the court's decision to grant summary judgment to Westward. The district court erred in concluding that Harvill unreasonably failed to follow Westward's antiharassment policy when French did nothing to halt Rogers' harassment. The court reasoned that Harvill could not establish that Westward did not take "prompt and remedial measures," because Harvill failed to use Westward's "bypass procedure," which allowed her to contact the Director of Human Resources if her complaint was not resolved satisfactorily by French. The court noted that, when Harvill did complain to Fisher, the harassment ceased. Consequently, the court concluded that Westward was entitled to summary judgment. Reversal of summary judgment for Westward on this issue is compelled by this Court's decision in Williamson v. City of Houston, Texas, 148 F.3d 462 (5th Cir. 1998). The relevant facts in Williamson are indistinguishable from those here. Williamson, a police officer, was being harassed by a co-worker. Id. at 463. The City had a policy which, like Westward's policy, stated that a victim should report the harassment to her supervisor and that, if the employee "is not satisfied with the action taken by the supervisor . . . the employee should bring the complaint to the attention of the Director of Affirmative Action." Id. at 466. Williamson reported the harassment to her supervisor, Sgt. Bozeman, but he, like French, did nothing to stop the harassment. Williamson then filed a formal complaint with internal affairs. The harassment ceased when the City transferred the harasser to another department. The jury found in the plaintiff's favor and the district court denied the City's motion for judgment as a matter of law. On appeal, the City argued, as Westward does here, that it was not liable for the harassment because, when Williamson's complaint to her supervisor did not stop the harassment, she did not take the additional step of complaining to the Director of Affirmative Action. The court of appeals specifically rejected this argument. The Court held that "[a]n employer cannot use its own policies to insulate itself from liability by placing an increased burden on a complainant to provide notice beyond that required by law." Id. at 467. The Court stated that "[i]f the employer has structured its organization such that a given individual has the authority to accept notice of a harassment problem, then notice to that individual is sufficient to hold the employer liable." Id.; see also Hurley v. Atlantic City Police Dept., 174 F.3d 95, 118 (3d Cir. 1999) (plaintiff had no obligation to try all available reporting mechanisms, because her immediate supervisor, who was responsible for addressing harassment pursuant to defendant's policy, was on notice of the harassment); Sims v. Health Midwest Physician Services Corp., 196 F.3d 915, 919 (8th Cir. 1999) (same); Wilson v. Tulsa Junior College, 164 F.3d 534, 541-43 (10th Cir. 1998) (same). Consequently, the court of appeals found that "notice to Bozeman can be imputed to the City of Houston for purposes of liability under Title VII." Williamson, 148 F.3d at 467. Likewise, here, Harvill reported Rogers' harassment to French, her supervisor, the person to whom Westward has "given . . . the authority to accept notice of a harassment problem." Williamson, 148 F.3d at 467. As in Williamson, Westward cannot rely on its own policy to place an "increased burden" on Harvill. Id. It is undisputed that French, like Bozeman, was the person Westward "designate[d] . . . to receive harassment complaints." Id. Consequently, notice to French, like notice to Bozeman, "can be imputed to [Westward] for purposes of liability under Title VII." Id. CONCLUSION For the foregoing reasons, the district court's grant of summary judgment to Westward should be reversed. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 29(d) and 32(a)(7)(B). This brief contains 6742 words. See Fed. R. App. P. 29(d) and 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). John F. Suhre CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief in paper form and one copy in electronic form were mailed, first class, on the 8th day of July, 2004, to the following counsel of record: Alex A. Castetter Stuckey, Garrigan & Castetter Law Offices P.O. Box 631902 Nacogdoches, Texas 75963-1902 Attorney for Plaintiff-Appellant Felicity A. Fowler Matthew Deffebach Haynes and Boone, L.L.P. 1000 Louisiana, Suite 4300 Houston, Texas 77002 Attorneys for Defendants-Appellees John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 _____________________________________ 1 RE. refers to Plaintiff-Appellant’s record excerpts. 2 The plaintiff also alleged constructive discharge, retaliation, and a violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The Commission takes no position on any issues arising from these claims. 3 The corporate defendants in this case are Westward Communications, L.L.C., Westward Communications, L.P., and Westward General, L.L.C.. According to the motion for summary judgment, Westward Communications converted from an “L.L.C.” to an “L.P.” in September 2001. Doc. no. 31, p. 3, n.1. Westward General, L.L.C. argued that it is not a proper defendant because it never employed the plaintiff. Id. at 15. The district court did not resolve this issue. The Commission will refer to Westward Communications L.P. as the defendant because it is undisputed that Harvill was employed by that company. 4 Harvill stated that Rogers may have touched private parts of her body as often as once per week between July 2001 and February 2002. Even though it would not be required to do so to find for Harvill, if a jury believed this testimony, it could find that Rogers may have touched her inappropriately between 24 and 28 times.