No. 09-2024 ____________________________________________ In The United States Court of Appeals For The Fourth Circuit ____________________________________________ Kimberly Hoyle, Plaintiff-Appellant, v. Freightliner, LLC, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Western District of North Carolina No. 07-169 The Honorable Graham C. Mullen ____________________________________________ Amicus Curiae Brief of The Equal Employment Opportunity Commission On Behalf of Plaintiff-Appellant ____________________________________________ James L. Lee Jennifer S. Goldstein Deputy General Counsel Attorney Vincent J. Blackwood EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel Carolyn L. Wheeler 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. s/Jennifer S. Goldstein TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF IDENTITY, INTEREST, AND SOURCE OF AUTHORITY TO FILE . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .2 District Court Decision . . . . . . . . . . . . . . . . . .8 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT I. The district court erred in requiring a plaintiff who challenges a discriminatory work environment to show she was the "target" of each act of harassment. . . . . . . . 11 II. The district court erred in rejecting Hoyle's retaliation claim based on application of a standard explicitly rejected by the Supreme Court . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006) . 1, 10, 18, 19 EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009) . 12, 15, 16 EEOC v. Sunbelt Rentals, Inc. 521 F.3d 306 (4th Cir. 2008) . . . . . . .13 Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . .14, 16 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . .13 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) (en banc) . . . 13 Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . . . . 11 Mikels v. City of Durham, N.C., 183 F.3d 323 (4th Cir. 1999) . . . . . .16 Ocheltree v. Scollon Prods., Inc., 335 F.2d 325 (4th Cir. 2003) (en banc) . . . . . . . . . . . . . . . . . . . . . . .13 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . 9, 12, 15 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) . . . . . . . .14 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001) . . . . . .14 Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) . . . . . . . .14 Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008) . . . . . . . . . . . . 13 STATUTES and RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . 1 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . 11, 17 42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . 17 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF IDENTITY, INTEREST, AND SOURCE OF AUTHORITY TO FILE The Equal Employment Opportunity Commission (EEOC) is the agency charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court in this case ruled that the plaintiff could not establish a work environment hostile to her because of her sex unless she demonstrated that she was the target of each act of harassment. The EEOC submits that the court's decision misconstrues the proof requirements of a hostile work environment claim under Title VII, for it is well-settled that a plaintiff may use a variety of evidentiary routes to show she was subjected to harassment that was hostile or abusive to her because of her sex. The district court also ruled that the plaintiff could not show her allegedly retaliatory job reassignment violated Title VII because such a reassignment was, according to the court, within the employer's purview. In so ruling, the court invoked a standard rejected by the Supreme Court. The EEOC submits that the district court instead should have applied the deterrence standard set out in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), and held that the plaintiff's humiliating reassignment to a janitorial position was an adverse action that could be challenged under the anti-retaliation provision. Because the court's rulings implicate the interpretation and enforcement of Title VII, we offer our views to this Court under Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES<1> 1. Whether the district court erred in requiring a plaintiff who challenges a discriminatory work environment to show she was the "target" of each act of harassment. 2. Whether the district court erred in rejecting Hoyle's retaliation claim where the court applied a standard explicitly rejected by the Supreme Court. STATEMENT OF FACTS Plaintiff Kimberly Hoyle began working as a truck assembler at one of defendant Freightliner's manufacturing plants in 1988. Throughout Hoyle's tenure at the plant, the majority of its 1,500 employees were male. R.36 Exh. B at 11. Beginning in 2004, Hoyle began working on trucks after they came off the assembly line, in a part of the plant that was separate from the main building. R.36 Exh. C at 44. Generally someone from the plant's painting unit would drive trucks from the painting area to Hoyle's building. Hoyle would take trucks parked outside her building and drive them into a "pit" area, where she would top off fluids, put on antennas, and do a final check of whatever was necessary to make the trucks ready to be shipped out. Id. at 43-46. She worked side-by-side with another female pit worker, and she usually would drive the first truck parked outside the building and her co-worker would drive the second. Id. While working, Hoyle wore a white suit that zips up to protect her clothing. Id. at 69. In addition, Hoyle would tape the bottom of the suit to ensure that oil and other automotive fluids did not get on her pants. Id. at 68-69. In May 2005, Hoyle went to retrieve a truck and saw that a tampon had been taken out of its container and tied to the truck's key ring. R.36 Exh. C at 47-55. Hoyle and her co-worker contacted a supervisor, who came down to the area, took the tampon off the key ring, threw it to the ground, and exclaimed, "They act like little boys." Id. at 51-52. The supervisor advised Hoyle and her co-worker that "the best thing to do was to ignore it because if we made a fuss … it would just make them act out even more." Id. at 52. Hoyle decided not to complain further because the supervisor, who was the highest-ranking one in that area, "said there wasn't anything we could do because the proof and stuff wasn't there." Id. Several nights later, another female co-worker overheard the men in the paint area laughing about the "tampon" incident. Id. at 53. Hoyle stated that she later told a male co-worker who "didn't see anything wrong with it" that she interpreted the tampon incident as equivalent to "someone calling us a bitch." Id. In June 2005, Hoyle was working overtime one evening with a co-worker named David Stowe in a different area of the plant. R.36 Exh. C at 56. Stowe realized he needed an item for the truck, and Hoyle offered to take him to the area where the item was located. While walking, they passed a mechanic's toolbox that was open, revealing several pictures taped to the open lid, at least one of which was of a woman in a G-string bikini. Id. at 57-58. Toolboxes are owned by the company and distributed to plant mechanics, who use the same toolbox each day while they work for Freightliner. Id. at 64-65. Hoyle complained about the pictures to Stowe and to her supervisor on that shift. Id. at 66. The next morning, as she approached her work building, a male mechanic named Tony Sanders came up to her and began screaming, "‘You ain't got no business telling anybody . . . what they can and can't put on their toolbox.'" Id. at 61. He added, "‘That's maintenance's toolbox. It's maintenance's area.'" Id. at 63. Hoyle later was asked about the incident by Colonel Hopper, a supervisory official. She told Hopper about Sanders' conduct and reiterated her concerns about the toolbox. Id. at 67-68. The next day Hoyle was walking towards her work building when a male employee saw Hoyle in her white suit and said, "‘What are you taping your pants up for now? So nobody can look up underneath your pants?'" R.36 Exh. C at 69. Hoyle stated that she understood the comment to relate to "‘[t]he complaints I'd been making over the pictures . . . because I'd never had a comment made to me that way before.'" Id. Roughly one month later, in September 2005, Hoyle saw calendars on the walls and bulletin board in her work area. R.36 Exh. C at 70. The calendars depicted women in wet bathing suits that revealed much of their bodies. Id. at 71. When Hoyle saw the calendars, she asked the shift supervisor that they be taken down because "it was inappropriate for the workplace." Id. at 73. The supervisor did take the calendars down. Later that night, Tony Sanders taped a photograph from one of the calendars to the inside of his toolbox. Id. at 74. According to Hoyle, Sanders "made sure I could see it." Id. She stated that he "moved his toolbox around to where I'd have direct visual sight to it. And then he sat in the chair . . . beside . . . it . . . watching me." Id. Sanders warned her that she "didn't have the right to tell him what he could or couldn't put in his toolbox. They might take it off the board, but he was going to keep it in his toolbox." Id. That same night, Hoyle also saw another picture taped to the toolbox of a male employee named "Dennis." The picture was of Dennis' wife, "in a G-string kind of . . . bent over." Id. at 79. Hoyle went to Colonel Hopper to talk about the calendars, about Sanders, and about the toolboxes. R.36 Exh. C at 75-76. Hopper asked what she found offensive about the calendars, and Hoyle explained that she thought pictures of women in "wet bathing suits with the nipples protruding through" were inappropriate for the workplace. Id. at 76. She also noted that the calendar was the same one hanging in Hopper's office. He took his calendar down when she explained why she found it offensive. Id. She also explained that she found the photographs taped to toolboxes offensive. Later that same night, she spoke to a Human Resources official, Chris Rice, to discuss the prevalence of offensive pictures on toolboxes. Id. at 83-84. Hopper subsequently instructed personnel with toolboxes not to tape pictures onto the lids. Later that same evening, Dennis approached Hoyle, "irate." Id. at 82. Dennis told her, "‘You have no right to tell me what I can and can't put on the toolbox.'" Id. at 83. Three to four weeks later, Hoyle was working on a truck in her pit, and she went to the pit's computer to see what fluids had been put in that particular truck. The computer's screensaver appeared; the screensaver depicted a completely naked woman. R.36 Exh. C at 91-92. She reported it to her shift's supervisor, and telephoned Rice the next day. Id. at 92. Until the screensaver was removed from her computer, she used the adjacent computer. Id. at 93. Shortly after her complaint about the computer, Freightliner moved Hoyle to a different position within her work area, called a "5-S person." R.36 Exh. C at 97. Her duties changed; she was responsible for cleaning, sweeping, sorting, and marking lines to be painted. Id. She no longer had any need to use a computer. Id. According to Hoyle, the job usually was assigned to one person per shift or per week, and usually it was a person who volunteered to do the tasks. Id. at 98-99. Hoyle was unaware of anyone who had been required to do the job on a permanent basis, as she was. Id. at 99. One of her supervisors in the 5-S position was a man named Terry, who told her that she was the source of joking amongst the male supervisors; Terry's comments "came across to me like they were downing me and upgrading him because of the way that I was having to work and do certain things like clean out the trash cans." R.32 Exh. 1 at 103. Cleaning out trash cans, Hoyle stated, was "usually a janitorial job." Id. Hoyle stated that she thought the cleaning assignment was just about "[h]umiliation" for her. Id. at 104. In November 2005, Hoyle had volunteered for overtime work on a Sunday. R.36 Exh. C at 108. There were several inspectors who likewise had signed up to work that Sunday. According to Hoyle, she showed one of the other employees how to do her inspection job, and then Terry told her that other employees had made a mess outside the building. R.32 Exh. 1 at 104. Terry told her, "‘I need you to go outside and clean up that mess,'" even though it was pouring rain. Id. By the time she finished cleaning around the trucks and came inside, she was soaking wet, even underneath her white cover suit. R.36 Exh. C at 109. The next day, Hoyle called in sick. Id. at 110-11. She was fired, allegedly because she had called the reporting line too late. Hoyle challenged the termination in accordance with the collective bargaining agreement and, after an arbitration, ultimately was reinstated. District Court Decision On summary judgment, the district court rejected Hoyle's harassment claim. The court held, inter alia, that a plaintiff must show she is the target of hostility in order to satisfy the "because of" element of a harassment claim. R.44 at 6. The court held Hoyle could not show she was the target because much of the challenged conduct "took place in group settings and was often merely overheard by Plaintiff . . . [or was] visible to both male and female employees." Id. As for other alleged acts of harassment, the court held Hoyle had not presented evidence that the tampon incident "was directed at her" because she did not know who put it in the truck. Id. The court dismissed the "pants" comment because that comment "referred to her complaints about the picture on the toolbox." Id. The court did not explain how this motive eliminated the gender aspect of the comment. The district court also rejected Hoyle's retaliation claim, holding, inter alia, that her assignment to a 5-S position could not be unlawful retaliation. The court stated that "such assignment does not constitute an actionable adverse employment action . . . [because the] new assignment did not impact the terms or conditions of her employment, and any other employee could be rotated in this area at any time." R.44 at 10-11. SUMMARY OF ARGUMENT The district court misapprehended what is required to show an unlawful hostile work environment. The court believed an individual can only experience a sex-based hostile work environment if she is the target of harassment. The district court was incorrect, for the Supreme Court has made clear that the essence of a hostile work environment is the individual's environment. If a woman is exposed to "disadvantageous terms or conditions of employment to which [men] are not exposed," then she is experiencing discrimination because of her sex, regardless of whether she was or was not the target of harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). To be sure, a plaintiff who is targeted – as Hoyle in fact was – may use that evidence to make the requisite showing, but the Supreme Court has made clear that there are a variety of evidentiary routes a plaintiff may pursue to show that his or her work environment was discriminatorily altered. The district court also erred in holding that a humiliating job reassignment, even if made for retaliatory reasons, could not be challenged under Title VII's anti-retaliation provision. The district court assumed that a retaliatory action had to comport with the standard set out in the anti-discrimination provision of Title VII, rather than the standard of the anti-retaliation provision. The district court's assumption was based upon an interpretation of Title VII that the Supreme Court has now expressly rejected. In a 2006 decision, the Supreme Court held that it is the anti-retaliation provision alone that governs retaliation claims. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Burlington Northern Court explained that any adverse action – including a job reassignment – is encompassed within Title VII's protections if it would deter employees from asserting their rights. The district court should have evaluated Hoyle's retaliation claim under this deterrence standard. ARGUMENT I. The district court erred in requiring a plaintiff who challenges a discriminatory work environment to show she was the "target" of each act of harassment. According to the district court, Hoyle had to show she was the "target" of hostility to establish unlawful sex-based harassment. The court further held that Hoyle had failed to make this requisite showing. On both counts, the district court erred. Title VII broadly prohibits an employer from discriminating against an individual with respect to the "terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court, recognizing that this statutory language "evinces a congressional intent ‘"to strike at the entire spectrum of disparate treatment of men and women"' in employment," explicitly endorsed the hostile work environment theory of discrimination. See Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citations omitted). In so doing, the Court explained that the critical inquiry is whether the plaintiff's environment was hostile or abusive because of her sex. See id. at 65 (Title VII "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.") (emphasis added). In assessing whether the work environment is hostile "because of" sex, the critical inquiry is not whether the plaintiff was the target of harassment. Rather, the Supreme Court held that "the critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (internal quotation omitted). If Hoyle were the target of harassment, that fact might help establish that the harassment was because of sex, but the Supreme Court has recognized that there are a variety of "evidentiary route[s]" to proving harassment because of sex, including comparative evidence about the way men and women are treated in the workplace, or evidence of sex- specific and derogatory language showing "the harasser is motivated by general hostility to the presence of women in the workplace." Id.<3> Because the focus must be on the employee's environment, both the Supreme Court and this Court have recognized that derogatory comments and conduct not targeted at an individual directly still can transform his or her work environment into a hostile or abusive one. In EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009), for example, this Court weighed evidence of conduct not directed at plaintiff – such as a pornographic screensaver on a co- worker's computer, pornographic magazines left around the office, and co- workers' use of derogatory terms when referring to women – in addition to evidence of conduct directed at the plaintiff, in determining that the challenged harassment was based on sex. See also Harris v. Forklift Sys., Inc., 510 U.S. 17, 19 (1993) (considering harassment directed at plaintiff's female co-workers, in addition to harassment directed at plaintiff); Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008) (noting that Fourth Circuit has "rejected the contention that only conduct directed at the plaintiff could be considered in evaluating a hostile work environment claim"); Ocheltree v. Scollon Prods., Inc., 335 F.2d 325, 332 (4th Cir. 2003) (en banc) (holding evidence sufficient to sustain finding harassment was because of sex even where "conduct was not directed at Ocheltree" and some conduct "‘could have been heard [or seen] by anyone present in the shop"); see also EEOC v. Sunbelt Rentals, Inc. 521 F.3d 306, 317 (4th Cir. 2008) (explaining "[w]e are, after all, concerned with the ‘environment' of workplace hostility," so "comments made to others are also relevant to determining whether [the victim] was subjected to severe or pervasive" harassment) (religious harassment case) (internal quotation marks omitted)); Jennings v. Univ. of N.C., 482 F.3d 686, 695- 96 (4th Cir. 2007) (en banc) (stating that "[e]vidence of a general atmosphere of hostility toward those of the plaintiff's gender is considered in the examination of all the circumstances" and sex-based comments – "even if not directed specifically to the plaintiff" – are "relevant to determining whether the plaintiff was subjected to sex-based harassment") (Title IX case); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (stating "there is no support in the law" for the proposition that harassment targeted at others cannot help create a hostile work environment) (race harassment case). Other courts of appeals similarly have held that the focus must be on the individual's environment, regardless of whether that individual was the target of harassment. See, e.g., Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270-72 (6th Cir. 2009); Petrosino v. Bell Atl., 385 F.3d 210, 221-23 (2d Cir. 2004); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 & n.2 (11th Cir. 1982) (race harassment case). In this case, Hoyle alleged that her work environment was affected by the sexualized pictures of scantily-clad women taped to toolboxes or posted on the wall as calendars. Although these pictures may not have been directed at Hoyle and could be seen by other employees, "the depiction of women in the offensive . . . graphics was uniformly sexually demeaning and communicated the message that women as a group were available for sexual exploitation by men. Such workplace disparagement of women . . . stands as a serious impediment to any woman's efforts to deal professionally with her male colleagues." Petrosino, 385 F.3d at 222; see also Cent. Wholesalers, 573 F.3d at 175 (pornographic magazines throughout workplace contributed to holding that harassment was because of sex). The district court should have considered this evidence in assessing whether Hoyle was subjected to a hostile work environment. The district court also erred in downplaying or ignoring evidence of harassment that either was directed at Hoyle, or that a reasonable jury could infer was directed at her. The district court held that because Hoyle did not know who placed the tampon in her truck, she could not show it was directed at her. The court's statement makes little sense, for there was evidence that the tampon was placed in a truck that either Hoyle or her female co-worker would take for final assembly. There was evidence that Hoyle subsequently heard male employees laughing about the tampon incident. A jury could find that male co-workers placed the tampon, a gender-specific item, in Hoyle's truck because of their "hostility to the presence of women in the workplace." Oncale, 523 U.S. at 80. The district court also dismissed the "pants" comment because it was connected to Hoyle's complaints about the pictures in toolboxes. It is unclear how this motive – hostility because of Hoyle's harassment complaints – undermines the gender aspect of the comment, which suggested that male co-workers would be interested in looking underneath her pants. In any event, the fact of the sexualized comment itself, and not the co-worker's motive, is the critical element in evaluating whether her work environment was discriminatorily altered. See, e.g., Gallagher, 567 F.3d at 272 (reversing district court decision that "focused too narrowly on the motivation for the harassers' offensive conduct rather than on the effects of the conduct on the victim-recipient").<4> Finally, the district court ignored the evidence of the picture of a naked woman that Hoyle found on her computer. Because the picture was on the computer she used at work, it could be inferred that someone put it on the computer so that Hoyle would find it. In any event, even if it were not targeted at Hoyle, the picture contributed to the overall environment Hoyle experienced. See Cent. Wholesalers, 573 F.3d at 175 (pornographic screensaver on co-worker's computer contributed to hostile work environment). The court should have considered this evidence in evaluating Hoyle's hostile work environment claim. II. The district court erred in rejecting Hoyle's retaliation claim based on application of a standard explicitly rejected by the Supreme Court. Title VII's anti-retaliation provision makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). Hoyle alleged that Freightliner violated this provision of Title VII by reassigning her and giving her undesirable job tasks in retaliation for her opposition to harassment. The district court rejected her claim, holding on summary judgment that the reassignment and attendant new duties "‘did not impact the terms or conditions of her employment,'" R.44 at 10, and so could not be challenged as an adverse action under Title VII. The district court failed to examine Hoyle's retaliation claim under the correct standard, which focuses on deterrence, but instead based its ruling on application of a standard explicitly rejected by the Supreme Court. The district court's decision therefore should be reversed. Unlike the anti-discrimination provision of Title VII, 42 U.S.C. § 2000e- 2(a)(1), the plain language of the anti-retaliation provision indicates that the provision is not limited to actions that implicate terms and conditions of employment. The Supreme Court relied on the language of section 2000e-3(a) when it emphatically rejected the argument that an employer's retaliatory action must impact the terms and conditions of employment to be subject to challenge under Title VII. In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 64 (2006), the Court held that "the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." (emphasis added). Instead, the Court held, the language and purpose of section 2000e-3(a) indicate that the provision encompasses any challenged action that a plaintiff can show "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N., 548 U.S. at 68 (internal quotations omitted). The evidence in this case indicates that assigning Hoyle to the 5-S position and giving her job duties that were "humiliati[ng]," R.32 Exh. 1 at 104, could well dissuade a reasonable worker from engaging in protected activity. The district court should have looked at the nature of Hoyle's new job duties, instead of according dispositive weight to the fact that "any other employee could be rotated in this area." R.44 at 10-11. In Burlington Northern, the Supreme Court rejected the employer's argument that the reassignment of job duties could not comprise actionable retaliation where "both the former and present duties fall within the same job description." 548 U.S. at 70. The Court explicitly held that a retaliatory reassignment of job duties may be unlawful even when the job duties fall within the same job description and so otherwise would be a permissible assignment for the employer to make. Id. at 70. As the Court observed, "[c]ommon sense suggests that one good way to discourage an employee . . . from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable." Id. at 70-71. The Court acknowledged that not all reassignments of job duties would be actionable, but it emphasized that the adversity of the reassignment should be assessed from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. Id. at 71. The Court held Sheila White had made the requisite showing by producing evidence that her new track labor duties were more arduous and dirtier, and were less prestigious than her prior duties. Id. In this case, Freightliner moved Hoyle away from a position where she worked on trucks – Freightliner's core product – to ensure they were ready for shipping. In that job, she used computers, among other tools. In her new 5-S position, Hoyle was more like a "janitor[]," cleaning sweeping, and sorting. R.32 Exh. 1 at 103. She was not responsible for working on Freightliner's core product, but instead had to do jobs "like clean out the trash cans." Id. at 103. Hoyle no longer used a computer for her tasks. Hoyle learned that supervisors joked with each other about the fact that Hoyle's supervisor was giving her such a humiliating job. According to Hoyle, no person ever had to perform that job on a permanent basis. On at least one occasion, her supervisor made Hoyle work outside in the pouring rain to clean up a "mess" other workers had left behind. This evidence demonstrates that Hoyle, like Sheila White, was reassigned to job duties more arduous, dirtier, and less prestigious than her prior duties. Under the standard set out in Burlington Northern, there was sufficient evidence that Freightliner subjected Hoyle to an adverse action that may be challenged under the anti- retaliation provision of Title VII. CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 4,693 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on December 2, 2009, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Jennifer S. Goldstein *********************************************************************** <> <1> The Commission takes no position on any other issue raised in this appeal. <2> "R.*" refers to the docket entry number in the district court record. It is the Commission's understanding that the corrected Joint Appendix is not yet available. <3> Of course, a plaintiff who shows he or she is the target of harassment still may fail to establish the "because of" element of the harassment claim, for a harasser may target a victim for reasons unrelated to the victim's gender. The district court's "target" standard thus is both under- and over-inclusive. <4> While evidence of the harasser's motivation or state of mind is not necessary to show harassment because of sex, the employer's "state of mind" is a critical component to establishing liability for co-worker harassment. An employer is only liable for such harassment if, after having acquired actual or constructive knowledge of the allegedly harassing conduct, the employer took no prompt and adequate remedial action to correct it. See, e.g., Mikels v. City of Durham, N.C., 183 F.3d 323, 329-30 & n.4 (4th Cir. 1999).