IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ________________________ No. 06-2201 ________________________ CAROL L. ISAACS, Plaintiff-Appellant, v. COLGATE-PALMOLIVE and HILL'S PET NUTRITION, INC., Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the District of Indiana, Indianapolis Division, Honorable Larry J. McKinney, Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF- APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov TABLE OF CONTENTS STATEMENT OF INTEREST .................................... 1 ISSUES PRESENTED.......................................... 2 STATEMENT OF THE CASE .................................... 2 1. Course of Proceedings ............................ 2 2. Statement of the Facts .......................... 3 3. District Court's Decision........................11 ARGUMENT ................................................ 13 I. THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL OF THE ACTS OF SEXUAL HARASSMENT ALLEGED BY PLAINTIFF AS A SINGLE, ACTIONABLE HOSTILE WORK ENVIRONMENT........13 II. THE DISTRICT COURT ERRED IN CONCLUDING THAT PLAINTIFF HAD FAILED TO PRESENT ADEQUATE EVIDENCE OF HARASSMENT THAT WAS SUFFICIENTLY SEVERE OR PERVASIVE AS TO CONSTITUTE A HOSTILE WORK ENVIRONMENT......................20 CONCLUSION .......................................... 24 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS TABLE OF AUTHORITIES Cases Page(s) Carter v. Chrysler Corp., . . . . . . . . . . . . . . . . . .173 F.3d 693 (8th Cir.1999)23 Cerros v. Steel Technologies, Inc., . . . . . . . . . . . . . . . . 288 F.3d 1040 (7th Cir. 2002) 21 Costanzo v. U.S.P.S., . No. 00 Civ. 5044, 2003 WL 1701998 (S.D.N.Y. March 31, 2003) 17 Fairley v. Potter, . .No. C-01-1363 VRW, 2003 WL 403361 (N.D. Cal. Feb.13, 2003) 17 Fanslow v. Chicago Mfg. Center, Inc., . . . . . . . . . . . . . . . . .384 F.3d 469 (7th Cir. 2004) 23 Harris v. Forklift Sys., Inc., . . . . . . . . . . . . . . . . . .510 U.S. 17 (1993) 20, 21, 23 Hostetler v. Quality Dining, Inc., . . . . . . . . . . . . . . . . .218 F.3d 798 (7th Cir. 2000) 21 Jimmerson v. Int'l Longshoremen's Ass'n, . No. CV205-101, 2005 WL 3533044 (S.D. Ga. Dec. 22, 2005) 19, 20 Lucas v. Chicago Transit Auth., . . . . . . . . . . . . . . . . .367 F.3d 714 (7th Cir. 2004) 18 Mason v. S. Ill. Univ. at Carbondale, . . . . . . . . . . . . . . 233 F.3d 1036 (7th Cir. 2000) 21, 23 National Railroad Passenger Corp. v. Morgan, . . . . . . . . . . . . . . . . . . . 536 U.S. 101 (2002) passim Porter v. California Dept. of Corrections, . . . . . . . . . . . . . . . . 383 F.3d 1018 (9th Cir. 2004) 19 TABLE OF AUTHORITIES (cont'd) Cases Page(s) Randall v. Potter, . . . . . . . . . . . . . 366 F. Supp. 2d 104 (D. Maine 2005) 17 Tinner v. United Ins. Co. of Am., . . . . . . . . . . . . . . . . .308 F.3d 697 (7th Cir. 2002) 18 West v. Philadelphia Electric Co., . . . . . . . . . . . . . . . . . .45 F.3d 744 (3d Cir. 1995) 19 Wilson v. Chrysler Corp., . . . . . . . . . . . . . . . . .172 F.3d 500 (7th Cir. 1999) 24 Statutes 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . 1, 2 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ No. 06-2201 ____________________________________________ CAROL L. ISAACS, Plaintiff-Appellant, v. COLGATE-PALMOLIVE and HILL'S PET NUTRITION, INC., Defendants-Appellees. _______________________________________________________ On Appeal from the United States District Court for the District of Indiana, Indianapolis Division, Honorable Larry J. McKinney, Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal presents an important issue regarding the timeliness of a challenge to a hostile work environment under Title VII. The district court correctly recognized that incidents of harassment occurring outside the limitations period may be included as part of a timely hostile work environment claim if they are related to incidents which occurred within the charge-filing period. However, in concluding that much of the harassment alleged by the plaintiff in this case was not related to the more recent incidents, the district court applied an excessively narrow standard. This Court's resolution of this appeal will affect the scope of Title VII harassment claims brought by the Commission and other private plaintiffs. Accordingly, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). ISSUES PRESENTED 1. Whether the district court erred in failing to consider all of the acts of sexual harassment alleged by plaintiff as a single, actionable hostile work environment. 2. Whether the district court erred in concluding that plaintiff failed to present sufficient evidence to support a finding that she was subjected to a hostile work environment based on her sex. STATEMENT OF THE CASE 1. Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiff's claims. The plaintiff initiated this action by filing a complaint on March 7, 2003, alleging, inter alia, that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., by subjecting her to a hostile work environment on the basis of sex. Doc. no. 1, Complaint. The district court entered a final judgment on March 31, 2006. Doc. no. 195, Judgment. Plaintiff filed a timely appeal on April 28, 2006. Doc. no. 199, Notice of Appeal. 2. Statement of the Facts Hill's Pet Nutrition, which is a subsidiary of the Colgate-Palmolive Company, manufactures and distributes pet food. Hill's operates a plant in Richmond, Indiana, which contains four production areas: Dry Mix/Bulk, Processing, Packaging, and Stretchwrap. Employees and supervisors in the plant carry radios in order to communicate with one another during shifts. Doc. no. 120, Ex. B, Bender dep., pp. 143-44, 168. Donna Moore, who worked in Stretchwrap, stated that employees who work in Packaging have to interact with those in Stretchwrap "[e]veryday all day long" and have to stay "in contact all the time" because Packaging sends Stretchwrap the "product already packaged" and Stretchwrap wraps it, places it on pallets, and either puts it in the warehouse or on trucks to be delivered to customers. Doc. no. 121, Ex. W, Moore dep., pp. 13, 14- 15. Isaacs testified that, although the radios were for "business communication," Bill Pebworth and other male employees in Stretchwrap made sexual comments and "moans and groans" on the radio "every single night" she worked there, "all night long" for the entire twelve hour shift. Doc. no. 121, Ex. P, Isaacs dep., pp. 509-11, 514, 546. According to Isaacs, when the employees were moving product on wooden pallets, they made remarks on the radio, such as "Oh, yeah, I'm dragging my wood," and "my wood's awful long." Doc. no. 121, Ex. P, Isaacs dep., pp. 509-10. Moore testified that she heard "a lot of men throughout the whole plant," including Pebworth, make "obscene noises . . . on the radio . . . just like they were sexually aroused." Doc. no. 121, Ex. W, Moore dep., p. 81. According to Moore, making these sounds simulating sex "was their favorite thing to do on the radio." Id. at p. 81-82. Elizabeth Bender stated that, on a "daily" basis, male employees made comments about "dragging their wood" and made other comments directed specifically at female employees, such as "I bet you're the tightest one in this plant and stuff like that." Doc. no. 120, Ex. B, Bender dep., p. 129. Isaacs found the male employees' conduct "sickening" and stated that "we were there to do a job and we had to listen to that." Doc. no. 121, Ex. P, Isaacs dep., p. 514. In April 2002, Isaacs complained to Jackie Vanderpool, defendant's Human Resources manager, about the comments on the radio. Doc. no. 121, Ex. P, Isaacs dep., p. 492-93. Moore testified that in 1996 and 1997, the "first year" she was there, she complained to Vanderpool about the male employees making "obscene" sexual sounds on the radio and asked Vanderpool to "say something to them about it." Doc. no. 121, Ex. W, Moore dep., p. 81-82. According to Moore, Vanderpool said she would do something, but, as far as Moore knew, she never did and "nothing ever changed." Id. at p. 82. Likewise, Bender complained about this and other inappropriate behavior to several members of management, including Cathy Zaleha, the plant manager. Doc. no. 120, Ex. B, Bender dep., p. 129-30. Isaacs began her employment in Packaging in December 1999, where she was to be trained by Tom Kitchell. Doc. no. 121, Ex. P, Isaacs dep., p. 74-76. Isaacs stated that Kitchell regularly talked about sex when working with her. For instance, he would tell her that he had "had a lot of different women," and that he had "done about everything there is to do with a woman." Id. at p. 94. Isaacs stated that he frequently talked about his "sexual prowess;" for example, when Kitchell would return from lunch, he would tell her and others that his wife had given him a "blow job" for lunch. Id. at p. 94-95; Doc. no. 121, Ex. O, Isaacs aff., ¶¶ 107-112. Isaacs stated that Kitchell engaged in this type of talk "almost all the time," and that it affected her "attitude and job performance." Doc. no. 121, Ex. P, Isaacs dep., pp. 94, 98-99. Isaacs stated that, when she told Kitchell to stop talking about sex, he refused to give her the training she needed, forcing her to learn the job on her own. Doc. no. 121, Ex. O, Isaacs' aff., ¶ 81. Antoinette Brown, one of Isaacs' coworkers, stated that, when you worked with Kitchell, he would talk about "women's body parts" and told her about one time when he was "in some country and he let a woman stick something up his rear end and pull it out, and that was the best sexual experience he ever had." Doc. no. 121, Ex. Y, Brown dep., p. 75. According to Brown, Kitchell "talked about" that sexual episode a lot, more than 10 times. Id. at pp. 79-80; 78-81. In fact, Brown told Teresa Toney, an assistant team leader, that she did not want to work with Kitchell because of how he talked. Id. at 81. Isaacs raised the issue of Kitchell's comments at "several team meetings" when "the whole Packaging team" was present, including Everett Jenkins, who, first as a Team Leader and then as an Area Leader, supervised Isaacs from February 22, 2001, through November 2003. Doc. no. 121, Ex. P, Isaacs dep., pp. 129, 132-33; doc. no. 121, Isaacs affi., ¶ 113; Doc. no. 71, Defendant's Appendix of Exhibits, Tab C, Jenkins aff., ¶ 6. When Isaacs described Kitchell's behavior to Jenkins, he "rolled his eyes," but he did not take any action to make Kitchell stop. Doc. no. 121, Ex. P, Isaacs dep., pp. 130-34. Isaacs stated that, when she complained to another Area Leader, Lisa Eddington, Eddington told Isaacs that a hostile work environment is "more productive" and that she should "live with it" because it was part of "your working life here." Doc. no. 121, Ex. P, Isaacs dep., pp. 146, 488; Doc. no. 121, Ex. O, Isaacs' aff., ¶¶ 86, 87. Jenkins stated that in October 2001, defendant transferred Isaacs from Packaging to Stretchwrap to resolve what he viewed as a personality conflict among Kitchell, Isaacs and two other employees. Doc. no. 71, Tab C, Jenkin's aff., ¶¶ 11, 12. According to Isaacs, she did not object to the transfer, but she thought defendant should have done something about Kitchell's "sexual harassment" rather than transfer her.<1> Doc. no. 121, Ex. P, Isaacs dep., p. 538. In any event, Isaacs stated that she was glad that she would not be around the harassment every day, and she thought that "maybe it would be better" in Stretchwrap. Id. at pp. 146-47. However, according to Isaacs, her situation did not improve after the transfer. Isaacs stated that, when she "first started" in Stretchwrap, Kitchell came to that area and talked to Bill Pebworth. Doc. no. 121, Ex. P, Isaacs dep., p. 148. Isaacs saw Kitchell talking to Pebworth while "leer[ing]," "point[ing]" and "giggl[ing] at her. Doc. no. 121, Ex. O, Isaacs aff., ¶ 154. When Isaacs asked Pebworth what he and Kitchell were discussing, Pebworth, with a "sneer," said that "they were talking about [her]." Id. at ¶ 155; doc. no. 121, Ex. P, Isaacs dep. p. 502 (Pebworth said he had been "talking to Kitchell"). According to Isaacs, Pebworth "just, basically, picked up where [Kitchell] had left off." Doc. no. 121, Ex. P, Isaacs dep., p. 105. Isaacs stated that Pebworth twice told her that her "butt's big enough for two men to climb on." Doc. no. 121, Ex. P, Isaacs dep., p. 502. Isaacs stated that Pebworth called "women bitches on a steady basis or a fucking bitch . . . that's what he calls them." Id. at p. 504. Moreover, he referred to Isaacs as a "bitch" twice and as a "fucking bitch" once. Id. at pp. 506-07, 509. Isaacs also stated that, on November 13, 2002, Pebworth intentionally ran into her with his forklift spilling about 700 pounds of pet food and remarked, "See what can happen to you, bitch." Doc. no. 121, Ex. O, Isaacs aff., ¶¶ 319-321; doc. no. 121, Ex. P, Isaacs dep., p. 461. When Isaacs complained to Pebworth, he called her a "fucking bitch." Doc. no. 32, Amended Complaint ¶ 42. Brown, who observed Pebworth just after the incident, stated that she believed Pebworth deliberately did it because he was "laughing and giggling." Doc. no. 121, Ex. Y, Brown dep., pp. 130-31. A few days after this incident, Isaacs' car was vandalized in defendant's parking lot. Doc. no. 121, Ex. O, Isaacs aff., ¶ 326. Isaacs stated that she complained about Pebworth to Jenkins "at least twenty times" (id. at ¶ 213), and to Vanderpool, but that neither of them took any corrective action. Id. at ¶¶ 195-96. Isaacs also stated that in December 2002, when she called Zaleha to ask if there was something she could do about the harassment and Pebworth's action with the pallet, Zaleha said "there was nothing that she could do about that." Id. at ¶ 331. Isaacs' co-worker Bender testified that Pebworth also made sexually derogatory remarks about Isaacs to other employees at the plant. Bender stated that Pebworth routinely referred to Isaacs as a "fucking bitch," a "fat ass whore," and a "whore, a cunt, [and] a fat bitch." Doc. no. 120, Ex. B, Bender dep., pp. 140-41. According to Bender, Pebworth made such comments about Isaacs "two or three times a night," and he made "at least half" of them over the radio. Id. at pp. 143-44. Bender also stated that Pebworth would have a word of the day to describe Isaacs, some days it would be "bitch" other days "whore" or "cunt." Id. at pp. 146-148. Brown testified that Pebworth referred to Isaacs as "a fucking bitch . . . every single day" and "all the time." Doc. no. 121, Ex. Y, Brown dep., pp. 108, 129-130. Bender stated that, no matter how much Isaacs complained in team meetings about Pebworth, "they" always treated it as a "personality conflict," rather than telling Pebworth to "cut it out right now or your [sic] going to get fired." Doc. no. 120, Ex. B, Bender dep., p. 149. Isaacs stated that Bender told her that Pebworth and other male employees called her a "fucking bitch" and other derogatory names. Doc. no. 121, Ex. O, Isaacs aff., ¶ 298; see also Doc. no. 120, Ex. B, Bender dep., p. 150 (Bender did not tell Isaacs about all of Pebworth's comments, but she "may have told [Isaacs] about a few"). There was evidence that Pebworth also refused to give Isaacs breaks when she needed them, and that he and the other men on her team would not help her when she needed it. Doc. no. 121, Ex. P, Isaacs dep., p. 504; doc. no. 121, Ex. W, Moore dep., pp. 52-53; doc. no. 120, Ex. B, Bender dep., pp. 162-63. Bender and Isaacs testified that Pebworth used his workplace computer to store pornography which was seen by female employees on several occasions. Doc. no. 120, Ex. B, Bender dep., pp. 147, 155, 159-161; doc. no. 121, Ex. P, Isaacs dep., pp. 497-99. Pebworth attempted to get Isaacs to view the pornography on at least two occasions. Doc. no. 121, Ex.P, Isaacs dep., pp. 136, 497-99. Company officials testified that, after some inappropriate material was discovered on company computers in the spring of 2002, the company conducted an investigation and suspended eleven people who were in the "chain of transmission." Doc. no. 71, Tab F, Zaleha's aff., ¶¶ 23-24. However, Bender testified that Pebworth continued to have pornography on his computer after that, and that he tried to get Bender to view it at least 9 to 10 times. Doc. no. 120, Ex. B, Bender dep., p. 155. On July 17, 2002, Isaacs filed a charge with the EEOC alleging sex discrimination and retaliation. Doc. no. 71, Tab F, Zaleha aff., Ex.4. This charge did not allege sexual harassment. Id. On January 31, 2003, Isaacs filed a second charge which expressly complained of sexual harassment. Doc. no. 71, Tab F, Zaleha aff., Ex. 7. After receiving a notice of right to sue, Isaacs filed this action against Hill's and Colgate-Palmolive alleging, inter alia, sexual harassment. Doc. No. 1, Complaint. 3. District Court's Decision The district court granted defendants' motion for summary judgment and dismissed all of Isaacs' claims.<2> Doc. no. 194, Order on Defendant's Motion for Summary Judgmen, p. 1-2. Defendant argued that no acts of sexual harassment could be considered that occurred earlier than April 5, 2002, 300 days before the date of plaintiff's second charge of discrimination. The district court, however, noted that, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that a hostile work environment constitutes a single claim under Title VII, and, as long as an act contributing to the claim takes place within the filing period, the employer may be held liable for the entire period of the hostile environment, including incidents of harassment which occurred more than 300 days before a charge was filed. Doc. no. 194, Order, p. 17-18. Consequently, the district court concluded that it would consider conduct prior to April 5, 2002, if it was "part of the same alleged hostile work environment." Id. at p. 18. The court noted that much of the alleged sexual harassment occurred while Isaacs was employed in Packaging, and that, after she was transferred to Stretchwrap on October 15, 2001, she had "different duties, different coworkers, and worked in an entirely different area of the Plant." Doc. no. 194, Order, p. 18. According to the court, Isaacs presented "no evidence linking the acts and actors complained of during her time in Packaging to her time in Stretchwrap." Id. For this reason, the court decided that it would "not include alleged acts occurring before October 15, 2001." Id. at 19. Considering the alleged harassment after Isaac's transfer, the court concluded that the evidence was not sufficient to support a finding that Isaacs was subjected to a hostile work environment. According to the court, the only "incidents . . . relevant to Isaacs' hostile workplace claim" are the following: 1) Isaacs twice "glimpsed objectionable materials on computer screens"; 2) she "frequently heard comments over the radio . . . that she took as sexual references"; 3) Pebworth twice commented on the size of Isaacs' buttocks; and 4) Pebworth "made crying sounds over the radio in an effort to mock her, used the word ‘bitch' in her presence a few times, and the term ‘fucking bitch' twice in reference to someone other than Isaacs." Doc. no. 194, Order, p. 28 (footnote omitted). The court concluded that this evidence was insufficient to establish that the harassment was so severe or pervasive as to create a hostile work environment. Doc. no. 194, Order, p. 30. The court determined that the conduct was not sufficiently severe to be actionable, but was merely "rude and tactless." Id. at 31. Moreover, the court concluded, the conduct did not occur often enough to create a hostile work environment. Id. at 32-33. ARGUMENT I. THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL OF THE ACTS OF SEXUAL HARASSMENT ALLEGED BY PLAINTIFF AS A SINGLE, ACTIONABLE HOSTILE WORK ENVIRONMENT. Isaacs alleges that she was subjected to a hostile work environment from at least 1999. Many of the incidents of harassment on which her claim is based occurred more than 300 days before she filed her second charge of discrimination on January 31, 2003. However, the Supreme Court stated in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), that "[i]t does not matter, for purposes of the statute [of limitations], that some of the component acts of the hostile work environment fall outside the statutory time period." The Court stated, "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. The Court indicated that pre- and post- filing period incidents are part of the same "hostile environment" unless 1) the acts that occurred within the filing period have "no relation to the acts" outside of the filing period or 2) "for some other reason, such as certain intervening action by the employer," the prior acts are no longer a part of the "same hostile environment." Id. at 118. Notwithstanding Morgan's directive, the district court excluded acts of harassment occurring prior to Isaac's transfer to Stretchwrap in deciding whether she made out a triable hostile work environment claim. The court applied an improperly rigid standard in concluding that the earlier acts of harassment were not sufficiently related to the harassment which occurred within the limitations period. Under a proper analysis, a jury could reasonably conclude that all of the incidents of harassment alleged by Isaacs were part of a single hostile work environment. The record contains evidence that, both before and after Isaacs' transfer from Packaging to Stretchwrap, she was forced to listen to her male coworkers making sexual comments and noises simulating sexual arousal on the radio. These comments occurred every night, "all night long" during the entire 12-hour shift. Doc. no. 121, Ex. P, Isaacs dep., pp. 509-11, 514, 546. Despite repeated requests by Isaacs and her female coworkers to stop this activity, defendant did nothing. When Isaacs worked in Packaging, Bill Kitchell, her mentor, daily bragged about his sexual prowess and routinely regaled Isaacs and other female employees with vivid details of his sexual experiences. When Isaacs expressed her displeasure about his behavior, Kitchell not only failed to stop, but refused to train her properly. Isaacs complained about Kitchell to her supervisor, Jenkins, and the plant manager, Zaleha, but they did nothing. When Isaacs was transferred to Stretchwrap in October 2001, Pebworth, after talking to Kitchell about Isaacs, immediately "picked up where Kitchell had left off." Doc. no. 121, Ex. P, Isaacs dep., p. 105. Pebworth referred to women as "bitches" or "fucking bitches" on a regular basis, and called Isaacs a bitch to her face on at least two occasions. Id. at pp. 504, 506-07, 509. According to her coworkers, Pebworth routinely called Isaacs "bitch," "cunt" or "whore." Doc. no. 120, Ex. B, Bender dep., pp. 140-41. Pebworth also harassed Isaacs by refusing to give her breaks when she needed them, and, along with other male employees, by refusing to respond when Isaacs called for assistance. Pebworth intentionally knocked a load off of Isaacs' forklift and, when she complained, called her a "fucking bitch." Doc. no. 32, Amended Complaint, ¶ 42. Further, even after defendant warned employees, Pebworth continued to keep pornography displayed on a company computer where it would be apparent to female employees, and he attempted to get Isaacs and Bender to view that pornography several times. Isaacs' requests that Jenkins, Zaleha and others in management take steps to stop this behavior went unheeded. Despite this evidence that Isaacs was subjected to a continuous pattern of harassment that began in Packaging and continued in Stretchwrap, the district court concluded that, under Morgan, the behavior Isaacs endured when she was in Packaging could not be considered part of the same hostile work environment as the later harassment. However, none of the reasons the district court gave for this conclusion have merit. As one reason for excluding acts of harassment in Packaging from Isaacs' claim, the district court stated that, after her transfer to Stretchwrap, Isaacs had different job duties. Doc. no. 194, Order, p. 18. However, there is nothing in law or logic to support the district court's view that the plaintiff's job duties have any bearing on this issue. Morgan holds that conduct outside of the filing period may not be considered part of the same hostile environment where the acts which took place within the filing period "have no relation to the acts" outside of the filing period, or where the acts were for some other reason "no longer a part of the same hostile environment." Morgan, 536 U.S. at 118. There is nothing about a change in job duties that is relevant to whether acts of harassment from different time periods are sufficiently related to be considered part of the same hostile environment. Likewise, the district court erred in deciding that the harassment in Packaging was not part of the same hostile environment because, after Isaacs was transferred to Stretchwrap, she "worked in an entirely different area of the Plant." Doc. no. 194, Order, p. 18. First, the record citations on which the court relies for this conclusion say nothing about the physical relationship between those two areas in defendant's plant. See Doc. no. 194, Order, p. 18. Moreover, there is evidence in the record suggesting that Packaging and Stretchwrap are in relatively close proximity, and that the employees in those two areas are in close contact daily in order to coordinate the transfer of defendant's product from Packaging to Stretchwrap. Doc. no. 121, Ex. W, Moore dep., pp. 13, 14-15; Doc. no. 121, Ex. P, Isaacs dep., p. 148 (Kitchell came from Packaging to Stretchwrap to have a conversation with Pebworth when Isaacs was transferred). Additionally, Isaacs' transfer to Stretchwrap did not change her working conditions in any way that would amount to an "intervening action" under Morgan. A transfer to a new position with a new supervisor and new coworkers may constitute an intervening action where the harassment ceases, at least temporarily. See, e.g., Randall v. Potter, 366 F. Supp. 2d 104, 118 (D. Maine 2005) (plaintiff was physically separated from her harassers and, when she returned to former position, she was put with different crew); Costanzo v. U.S.P.S., No. 00 Civ. 5044, 2003 WL 1701998 * 11 (S.D.N.Y. March 31, 2003) (harassment ceased when plaintiff was transferred to a new team with a new immediate supervisor); Fairley v. Potter, No. C-01-1363 VRW, 2003 WL 403361 *10 (N.D. Cal. Feb.13, 2003) (in pre-Morgan case, plaintiff admitted that she had new supervisors and coworkers at current facility and did not assert any links between "either the personnel or the events" at current and prior facilities). Here, by contrast, the harassment of Isaacs did not stop when she was transferred from Packaging to Stretchwrap. In fact, some of the harassment to which Isaacs was subjected did not change at all after the transfer. Isaacs was exposed to the same sexually suggestive comments on the radio while working in both Packaging and Stretchwrap because radio contact between the departments was necessary to perform the jobs properly. Furthermore, the management officials who failed to respond to Isaacs' complaints, including Jenkins, her immediate supervisor, were the same prior to and after Isaacs's transfer. Consequently, contrary to the district court's conclusion, the behavior in Stretchwrap did not involve "entirely different working conditions." <3> The biggest change resulting from the transfer was that Pebworth became Isaacs' principal tormenter after the transfer replacing Kitchell.<4> However, a plaintiff need not show that earlier acts of harassment were committed by the same individuals as were later acts in order to establish that they were part of the same hostile work environment. See West v. Philadelphia Electric Co., 45 F.3d 744, 756 (3d Cir. 1995) (observing that "[n]owhere in the case law establishing [the standard for a hostile work environment] is there a requirement that the discriminatory conduct of each co-worker, who participated in creating the hostile environment, be pervasive and/or on-going"); Jimmerson v. Int'l Longshoremen's Ass'n, No. CV205-101, 2005 WL 3533044, at *6 (S.D. Ga. Dec. 22, 2005) (where employees who harassed plaintiff within statutory time period had been emboldened by fact that other employees had gotten away with harassment on previous occasions outside of statutory period, the latter acts of harassment are "related to the alleged prior harassment"). The district court implied that Isaacs could show that her treatment in Packaging and Stretchwrap was part of the same hostile environment if she could provide some evidence linking "the acts and actors complained of" in the two departments, but that she failed to do so. Doc. no. 194, Order, p. 18. However, contrary to the court's view, Isaacs did provide evidence linking the harassment in Packaging with the harassment in Stretchwrap. Isaacs stated that, when she "first started" in Stretchwrap, Kitchell came to that area where, while making derisive gestures and expressions at her, he had a conversation with Pebworth that Pebworth admitted was about Isaacs. Doc. no. 121, Ex. P, Isaacs dep., p. 148. According to Isaacs, after this conversation, Pebworth "just, basically, picked up where [Kitchell] had left off." Id. at p. 105. This evidence supports the view that Kitchell encouraged Pebworth to harass Isaacs and that Pebworth was emboldened by the fact that defendant did nothing to stop Kitchell's harassment of her. A reasonable jury could conclude from this evidence that Pebworth's harassment of Isaacs "is related to the alleged prior harassment" of her by Kitchell. See, e.g., Jimmerson, No. CV205-101, 2005 WL 3533044, at *6. II. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT A FINDING THAT ISAACS WAS SUBJECTED TO A HOSTILE WORK ENVIRONMENT. Contrary to the district court's view, there is sufficient evidence to support a finding that the harassment of Isaacs was sufficiently severe or pervasive to constitute a hostile work environment. Title VII is violated when "the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The determination as to whether harassment is sufficiently severe or pervasive must be made while considering "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." Id. at 23; Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1045 (7th Cir. 2000) ("Courts should not carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive."). This Court has recognized that there is an inverse relationship between severity and pervasiveness such that a "relentless pattern of lesser harassment that extends over a long period of time also violates the statute." Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002). In concluding that Isaacs failed to establish her sexual harassment claim, the district court held 1) that the challenged conduct, while "rude and tactless," was not sufficiently severe to be actionable (Doc. no. 194, Order, p. 31); and 2) that the behavior occurred too infrequently to support Isaacs' claim. Id. at p. 32-33. Viewing the evidence as it must be, "in the light most favorable to" Isaacs, the district court was wrong on both counts, and the case must be remanded for trial. See Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000) (noting that "[i]f . . . the record leaves room for a finding in [plaintiff's] favor, then we must reverse the grant of summary judgment and remand for a trial"). The district court's first error was to ignore the incidents of harassment which occurred prior to Isaacs' transfer to Stretchwrap. As discussed above, a reasonable jury could find that all of the harassment was part of a single hostile work environment. Moreover, even if the earlier acts of harassment were not part of the same environment, the district court erred in failing to treat them as background evidence to support Isaacs' claim that she was subjected to a hostile work environment during the charge-filing period. Morgan, 536 U.S. at 113 (observing that, in the context of discrete acts, Title VII does not "bar an employee from using the prior acts as background evidence in support of a timely claim"). Furthermore, a reasonable jury could find that the conduct of Kitchell, Pebworth and other male employees was more than simply rude and tactless. Kitchell constantly bragged about his sexual skill and exploits to his female coworkers; Pebworth regularly referred to women as "bitches" and "fucking bitches;" and he and other male coworkers made sexually suggestive noises and comments on the radio.<5> Moreover, the harassment interfered with Isaacs' ability to perform her job. Kitchell refused to train Isaacs when she complained about his behavior. Pebworth and male workers in Stretchwrap refused to help Isaacs when she requested it and Pebworth refused to allow Isaacs to take breaks when she needed them, and deliberately knocked a load of product off of Isaacs' forklift.<6> Contrary to the district court's view, a reasonable jury could find that this behavior was exactly the type of "discriminatory intimidation, ridicule, and insult" that may constitute a hostile work environment. See Harris, 510 U.S. at 21. Moreover, the court misread the record in concluding that the conduct was too infrequent to be actionable. There is evidence that Kitchell talked about his sexual activities "almost all the time," that the comments on the radio occurred "every single night" during the entire twelve-hour shift, and that Pebworth used derogatory terms to describe women on a "steady basis." See supra at pp. 3, 5, 7. A reasonable jury could find that the conduct here constituted a "relentless pattern" of behavior that created a hostile work environment for Isaacs and other female employees. See, e.g., Wilson v. Chrysler Corp., 172 F.3d 500, 511 (7th Cir. 1999) ("multifaceted nature of the harassment" and its "frequent and at times routine character" perpetrated by numerous employees "depicts a workplace in which harassment rises almost to the level of an institutional norm"). 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 JOHN F. SUHRE Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,036 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. (s)_____________________________________________ Attorney for Equal Employment Opportunity Commission Dated ____________________________________ CERTIFICATE OF SERVICE I hereby certify that two copies and one digital version of the foregoing brief were mailed, first class, on October 23, 2006, to each of the following: Richard L. Darst, Esq. Suite 800, Keystone Crossing Plaza 8888 Keystone Crossing Boulevard Indianapolis, Indiana 46240-4636 Attorney for Plaintiff-Appellant Susan W. Kline, Esq. Baker & Daniels 300 North Meridian Street Suite 2700 Indianapolis, IN 46204 Attorney for Defendants-Appellees ____________________ John F. Suhre Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 *********************************************************************** <> <1> Isaacs stated that, when she asked Jenkins why he had not done something about Kitchell's (and another employee's) conduct instead of transferring her, Jenkins told her that "someone was going to lose their job if he didn't move [Isaacs]" and assured her that she had not done "anything wrong." Doc. no. 121, Ex. P, Isaacs dep., pp. 129-130. <2> The court dismissed Isaacs' claims against Colgate-Palmolive, concluding that the company was not Isaacs' employer. Doc. no. 194, Order, p. 14. <3> Defendant cited Lucas v. Chicago Transit Auth., 367 F.3d 714 (7th Cir. 2004) and Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th Cir. 2002), to support its argument that the conduct Isaacs experienced in Stretchwrap was not part of the same hostile work environment. Doc. no. 158, Defendant's Reply Brief in Support of Motion for Summary Judgment, p. 10-11. However, neither case supports the district court's holding. In Lucas, the alleged harassment ceased when the plaintiff was transferred; three years later, there was an additional incident that occurred "entirely by happenstance" when plaintiff and the harasser met while riding the same train. Lucas, 367 F.3d at 727. Here, the conduct in Stretchwrap was a continuation by Pebworth of Kitchell's behavior after the two conferred about Isaacs. In Tinner, the court of appeals never addressed the hostile work environment claim, nor did it address Morgan insofar as the Supreme Court distinguished discrete acts and a hostile work environment. Rather, the court focused upon three discrete acts which Tinner claimed were acts of discrimination. Tinner, 308 F.3d at 708-09. <4> Even assuming the harassment changed in intensity after Isaacs was transferred to Stretchwrap, that does not mean that the harassment in both areas cannot be considered part of the same hostile work environment. The Supreme Court's holding in Morgan does not require that the most egregious of the harassing events occurred within the 300-day period, nor does it demand that the harassing conduct continue to escalate over time in order for a hostile-environment claim to be actionable. See Porter v. California Dept. of Corrections, 383 F.3d 1018, 1028 - 1029 (9th Cir. 2004) (citing Morgan, 536 U.S. at 117). <5> The district court concluded that Isaacs' statements in her affidavit that Pebworth called women "'bitches'" or "'fucking bitches'" on a "'steady basis,'" and told Isaacs, "'fuck you bitch,'" contradicted her deposition testimony which, according to the court, states only that Pebworth used "the term 'fucking bitch' twice in reference to someone other than Isaacs." Doc. no. 194, Order, p. 28. n.6. Contrary to the district court's assertion, Isaacs' deposition testimony is fully consistent with her affidavit. In her deposition, as in her affidavit, Isaacs stated that Pebworth called women bitches or fucking bitches on a steady basis. Compare Doc. no. 121, Ex. P, Isaacs dep., p. 504 (lines 6-8) with Doc. no. 121, Ex. O, Isaacs aff., 322. Moreover, Isaacs stated in her deposition that Pebworth referred to her as a "bitch" twice and as a "fucking bitch" once (see Doc. no. 121, Ex. P, Isaacs dep. p. 506-07, 509), and that, when he intentionally ran into her with his forklift, he stated, "See what can happen to you, bitch." Id. at p. 461. Isaacs' affidavit consistently tracks her earlier deposition testimony as well as the allegations in her complaint. See Doc. no. 32, Amended Complaint, 42 (Pebworth called Isaacs a "fucking bitch"). Consequently, this is not a situation where Isaacs has "directly contradicted her own earlier statements" without offering some explanation. See Fanslow v. Chicago Mfg. Center, Inc., 384 F.3d 469, 482 (7th Cir. 2004). <6> The court concluded that derogatory comments Pebworth made about Isaacs outside of her presence were not relevant to her claim of harassment. Doc. no. 194, Order, p. 31, citing Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000). However, Mason holds that incidents of harassment are relevant to a showing of severity or pervasiveness where the plaintiff "know[s] of them." Id., citing Carter v. Chrysler Corp., 173 F.3d 693, 701 n. 7 (8th Cir.1999) (plaintiff knew of graffiti "during the time in which she experienced harassment. It is thus relevant on whether a hostile work environment existed"). Here, there is evidence that Bender told Isaacs that Pebworth and other male employees referred to her as a "fucking bitch" in the workplace. See supra at p. 9. Consequently, because Isaacs knew of that harassment, it is relevant to her claim that she suffered a hostile work environment.