Latroy Thomas, Inc. v. EEOC, 5th Cir. Opposition to Petition for Permission to Appeal Filed August 18, 2006 No. 06-00037 _________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________________ LAROY THOMAS, INC., Defendant-Petitioner v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent. _________________________________________________ On Petition for Permission to Appeal Pursuant to 28 U.S.C. § 1292(b) From the United States District Court For the Eastern District of Texas, Texarkana Division Hon. Caroline M. Craven, U.S. Magistrate Judge _________________________________________________ OPPOSITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION TO PETITION FOR PERMISSION TO APPEAL _________________________________________________ Defendant-petitioner Laroy Thomas, Inc. (the Company), seeks immediate interlocutory review of an order denying summary judgment against the Equal Employment Opportunity Commission's (EEOC's) claim that the Company subjected African-American employee Raymond Jackson to a racially hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Upon a thorough review of the summary judgment record, the district court found evidence sufficient to demonstrate both that Dwight Harrison, the alleged harasser, was Jackson's supervisor, see R. 57 at 29-32,<1> for purposes of holding the Company vicariously liable for the hostile environment under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) ("An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor."), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (vicarious liability will result from the conduct of "a supervisor with immediate (or successively higher) authority over the employee"). Even assuming Harrison was Jackson's co-worker, the court further found sufficient evidence to find the Company negligent for failing to take prompt and effective action to prevent and remedy the harassment. R. 57 at 32-38; see Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) ("negligence standard governs employer liability for co-worker harassment"). Having found sufficient evidence to hold the Company liable whether Harrison was Jackson's supervisor (in which case the Company would be vicariously liable for the hostile environment unless it can establish the two-prong affirmative defense established in Faragher/Ellerth), or his co-worker (in which case the Company could be held directly liable for negligently failing to prevent or remedy the harassment), the court properly denied summary judgment. R. 57 at 39. Section 1292(b) permits interlocutory review of "a controlling question of law as to which there is substantial ground for difference of opinion" if immediate appeal "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). "Permission to appeal is granted sparingly, not automatically," Alabama Labor Counsel v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972), and the party seeking interlocutory review bears "‘the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Parcel Tankers, Inc. v. Formosa Plastics Corp., 764 F.2d 1153, 1155 (5th Cir. 1985). The Company has not met its burden to demonstrate that the question on which it seeks immediate review -- whether Harrison was Jackson's supervisor or coworker -- falls within section 1292(b)'s "narrow exception" to the "Congressional policy against piecemeal appeals." See Garner v. Wolfenbarger, 433 F.2d 117, 120 (5th Cir. 1970); In re Ingram Towing Co., 59 F.3d 513, 515 (5th Cir. 1995) ("Interlocutory appeals are not favored and the statutes allowing them must be strictly construed."). The undisputed record evidence establishes that there is no "substantial ground for difference of opinion" in this Circuit on the question whether Harrison was Jackson's supervisor, for purposes of the Faragher/Ellerth analysis. See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 411 (5th Cir. 2002) (employer admitted alleged harasser "was [plaintiff's] immediate supervisor, thereby justifying the application of the Ellerth/Faragher test for vicarious liability," notwithstanding "his inability directly to hire or fire those in [plaintiff's] position"), cert. denied, 537 U.S. 1188 (2003). Immediate review, moreover, will not "materially advance the ultimate termination of the litigation." See 28 U.S.C. § 1292(b). As reflected in the district court's thorough recitation of the summary judgment record, genuine issues of material fact necessitate a trial. See R. 57 at 29-38. The same evidence and arguments -- as to whether the Company had actual or constructive knowledge of Harrison's harassment and the adequacy of its efforts to prevent and remedy the racially hostile work environment -- will be relevant regardless of Harrison's status as a supervisor or coworker, since these are the essential components of both the Ellerth/Faragher affirmative defense to vicarious liability, and the negligence standard. The Company, in effect, seeks immediate review to obtain a declaration by this Court as to which party should bear the burden of proof at trial on whether the Company had notice of, and adequately responded to, Harrison's racial harassment of his subordinates. Allocation of the burden of proof on these factual questions, however, can be managed at trial, and preserved for potential appellate review, through well-crafted jury instructions and interrogatories on the verdict form. This Court should therefore deny the petition for permissive interlocutory appeal. Factual Background<2> Raymond Jackson is a sheet metal worker employed by the Company, "a mechanical contractor engaged in the business of heating/air conditioning/plumbing installation in new construction and . . . existing buildings." R. 57 at 6. "[D]uring the latter part of 2003 and approximately the first seven months of 2004," Jackson was assigned to work on two different Company projects (the Walnut Church project, from late 2003 to June 2004, and the Mt. Pleasant job, from June 8, 2004 to July 8, 2004), under the direction of Sheet Metal Job Superintendent Dwight Harrison. Id. at 6-7, 11-12. Throughout this period, Harrison subjected Jackson and Ron Hayes, another African- American sheet metal worker assigned to the Walnut Church and Mt. Pleasant projects, to a barrage of racially offensive epithets and remarks. See id. at 12-14. Harrison frequently called Jackson "nappy-headed" and an "old, black, nappy-headed S.O.B.," and referred to Jackson as "my little Toby," a "racially derogatory phrase from the mini-series ‘Roots' . . . almost every day." Id. at 12. Harrison told Hayes that "the only thing that black folks wanted was a raise and a watermelon," called Hayes "a ‘nigger' and other racial slurs," and remarked that "all niggers are good for is kinky hair and eating watermelon." Id. at 13. "Both Jackson and Hayes complained to multiple Company managers" about Harrison's harassment. Id. at 13. Between January and May 2004, while working on the Walnut Church project, Jackson "complained about Harrison's behavior at least five times to the head Sheet Metal Superintendent, Tim Hudson," who "told Jackson that he had spoken to [Company President] Laroy Thomas about his complaint and that there was nothing he could do about the situation." Id. "Jackson also complained about Harrison's racial slurs to Supervisor Michael York," and "reported Harrison's racial harassment to Plumbing Supervisor Horace Trammel." Id. "Hayes first reported the racial harassment to [Company] Vice-President Barry Thomas when he was working at the Walnut Church project in the Spring of 2004," and complained to head Sheet Metal Superintendent Hudson, who also "told Vice President Barry Thomas about the situation." Id. "Hayes also reported Harrison's racial harassment to Foreman Gregory Bellew." Id. The Company took no action in response to these complaints and reports of Harrison's racial harassment. Id. at 13-14. In early July 2004, "Hayes reported the racial harassment to Laroy Thomas during the Mt. Pleasant job," and President Thomas visited the worksite the following week, when Jackson was on vacation. Id. at 14. Although Jackson had complained directly to Company Vice-President Barry Thomas about Harrison's racial harassment during the Mt. Pleasant job, "Thomas never investigated Jackson's complaint, never followed-up with Jackson about the complaint, never interviewed anyone in conjunction with Jackson's complaint, and Laroy Thomas never interviewed Jackson as part of any investigation of the complaints of racial harassment that had been made against Harrison." Id. During his visit to the Mt. Pleasant job site, Laroy Thomas interviewed Hayes and Harrison. Id. "According to Harrison, the only statements that Thomas said to [him] included a question of what was going on, if Harrison said something or did something, he would be fired, and indicated that he would talk to ‘them.'" Id. Harrison testified that "during this ‘interview' . . . he ‘didn't say anything,' yet Laroy Thomas testified he believed Harrison acknowledged he had called Jackson and Hayes ‘nappy headed.'" Id. Hayes could "not recall if Laroy Thomas specifically asked him about the ‘n' word," but testified that "he probably told him Harrison had called him the racial slur." Id. at 15. Notwithstanding the numerous reports to Company management about Harrison's racially offensive conduct, "Harrison was never disciplined, warned, suspended, given a reduction in pay, or transferred to another job site, and nothing was ever placed in his personnel file reflecting that racial complaints had been made against him and that any further incidents would warrant disciplinary action, including termination." Id. at 16. Instead, the Company "involuntarily transferred" Jackson and Hayes to different job sites. Id. When Jackson returned from his vacation, the Company informed him that he had been transferred from Mt. Pleasant to a job in Texarkana, Arkansas, effective July 19, 2004. Id. at 10. "Subsequent to Jackson and Hayes reporting Harrison's racial harassment to Laroy and Barry Thomas, Laroy Thomas elevated Harrison to the job of Sheet Metal Superintendent (previously occupied by Tim Hudson and . . . the fourth highest management level at the Company after the President, Vice-President, and General Superintendent) in charge of overseeing multiple projects and supervising the Sheet Metal Job Superintendents responsible for these projects." Id. at 16-17. In late December 2004/early January 2005, the Company reassigned Jackson to the Mt. Pleasant project. Id. at 16. "Although Hudson was the direct supervisor" of the Mt. Pleasant job at that time, "Harrison oversaw this project, would visit it on a daily basis, and have contact with Jackson whenever he visited." Id. "During these visits, Harrison would call Jackson racial slurs, including ‘black nappy-headed son-of-a-bitch,' ‘nappy-headed,' and told Jackson that ‘all you Black folks want is a watermelon and a raise.'" Id. After the Mt. Pleasant project was completed in May 2005, until March 2006, the Company assigned Jackson to work at several projects overseen by Harrison, who "would make daily visits and have daily contact with Jackson." Id. Proceedings in District Court The EEOC has sued the Company under Title VII and the Civil Rights Act of 1991, seeking a permanent injunction against further racial discrimination and harassment, an order requiring the Company to institute and maintain policies and practices to provide equal employment opportunities and eradicate the effects of unlawful employment practices, monetary relief to compensate Jackson for the discrimination he has suffered, punitive damages, and costs. R. 57 at 1-2. In a motion for summary judgment, the Company argued that it could not be held vicariously liable for Harrison's racial harassment because he was Jackson's coworker, not his supervisor, and "it took proper remedial action immediately upon learning of the alleged harassment." Id. at 2. The argument that Harrison was not a supervisor, for purposes of imposing vicarious liability on the Company for his harassment, was premised on the affidavit of Laroy Thomas that only he and his son, vice president Barry Thomas, "have authority to hire, fire, discipline, promote, demote, transfer, and give pay raises to the Company's employees." Id. at 6. The Company advanced this argument, notwithstanding the testimony of its president, Laroy Thomas, that "Harrison was solely responsible for supervising Jackson and directed him in his daily work activities," and "was solely responsible for giving Jackson detailed instructions regarding his daily work assignments at both the Walnut Church and Mt. Pleasant projects." Id. at 29-30. Laroy Thomas "classified Harrison as a supervisor," id. at 29, and acknowledged that he (Thomas) "never directly supervised Jackson – Harrison was Jackson's supervisor and directed him what to do on each job." Id. at 30. Thomas admitted that "Harrison, as a Superintendent, was substantially involved in employment decisions affecting the individuals he supervised, including decisions relating to pay increases and demotions." Id. at 17. Thomas further "testified that the supervisors play an integral role in determining what employment decisions are made affecting their supervised employees," id., and that "he consulted with Harrison regarding hiring, firing, and demoting employees." Id. at 32. Furthermore, "[a]ccording to Laroy Thomas, Superintendents," including Harrison, "have the authority to fire employees in certain circumstances like if an employee comes to the job drunk or under the influence of drugs." Id. at 31. In its summary judgment opinion, the district court undertook a comprehensive review of the law on "the question, ‘who is a supervisor?'" for purposes of imposing on an employer vicarious liability "‘for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the [victimized] employee.'" Id. at 20 (quoting Ellerth, 524 U.S. at 765); see id. at 20-28 (discussing Faragher and Ellerth, EEOC guidance, law review commentary, and judicial decisions). The court was under the impression (shared by the parties below) that "the Fifth Circuit has not weighed in on this issue." Id. at 23; see also id. at 5 ("[T]here is no controlling authority in the Fifth Circuit regarding the definition of ‘supervisor.'"). The Company urged the district court "to adopt the narrow definition of ‘supervisor'" endorsed by courts that "narrowly defined the term ‘supervisor' and have concluded that supervisory authority consists primarily of the ability to take tangible employment action." Id. at 25-26. In opposition, the EEOC maintained that the undisputed facts demonstrate Harrison was (and is) Jackson's supervisor under any definition of that term, and even "assuming arguendo that Harrison is a co-worker . . . the material facts are not in dispute that [the Company] did not take prompt remedial action in response to Jackson's complaints of racial harassment."<3> Id. at 2-3, 28. The district court adopted as "the most appropriate definition of ‘supervisor'" a standard which "requires more than just daily supervision of daily work activities and work assignments" but "acknowledges that the authority entrusted to the supervisory employee need not be absolute; it can encompass the power to initiate, recommend, or effect [sic] tangible employment actions." Id. at 28-29. Under that standard, the court found "sufficient evidence to create a genuine issue of material fact that Harrison was [Jackson's] ‘supervisor'" for purposes of imposing on the Company vicarious liability for his racial harassment. Id. at 29. Even "[a]ssuming the jury finds Harrison was a co-worker and the negligence standard applies," the court further found "sufficient evidence to establish a fact issue that [the Company] knew or should have known of the alleged harassment and failed to take prompt remedial action." Id. at 32. Having found sufficient evidence to hold the Company liable whether Harrison is Jackson's supervisor or his coworker, the court denied summary judgment. Id. at 39. Upon the Company's motion, the court determined that "the definition of ‘supervisor' is a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the Court's order [denying summary judgment] may materially advance the ultimate termination of this litigation," R. 56 at 2-3, and amended its summary judgment order accordingly. R. 57 at 38-39. The court granted the request to seek permissive interlocutory review because it agreed with the Company's suggestion that "the case will be easier to try and ‘far more comprehensible to the jury' if the parties could know in advance of trial which of the two theories of liability" – i.e., vicarious liability or negligence – "would be applicable in this case." R. 56 at 2. Argument I. There Is No Substantial Ground for Difference of Opinion in the Fifth Circuit on the Definition of "Supervisor" for Purposes of Imposing Vicarious Liability for a Racially Hostile Work Environment. This Court has held that an employer is vicariously liable for harassment of a plaintiff by her "immediate supervisor," notwithstanding "his inability directly to hire or fire those in [plaintiff's] position." Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 411 (5th Cir. 2002) (employer admitted alleged harasser "was [plaintiff's] immediate supervisor, thereby justifying the application of the Ellerth/Faragher test for vicarious liability"), cert. denied, 537 U.S. 1188 (2003).<4> The district court in Wyatt granted summary judgment against plaintiff Alisha Wyatt, who claimed she was sexually harassed by both her "immediate supervisor," John Thompson, and "her next higher supervisor," Donald Gorum. Id. at 407. The employer satisfied both prongs of the Ellerth/Faragher affirmative defense, the district court held, because it maintained a policy instructing employees to report harassment, and to whom they should complain; Wyatt reported Thompson's harassment only to Gorum and failed to report Gorum's harassment at all; and Gorum's supervisor and the plant manager, upon learning of the harassment, immediately investigated and within three days fired both Thompson and Gorum. Id. at 410. This Court reversed in part, holding that "for the period that began with Wyatt's first report to Gorum of Thompson's harassment and ended when Gorum himself began harassing Wyatt, [the employer] cannot establish the second prong of the conjunctive Ellerth/Faragher affirmative defense: [it] cannot show that Wyatt unreasonably failed to use the preventative and remedial opportunities provided by the employer." Id. at 414. On appeal, the employer maintained "that it merely conceded Thompson's supervisory status arguendo" for purposes of summary judgment, id. at 412, and relied on the district court's reference to Thompson as Wyatt's "co-employee" to argue, as "an alternative basis for affirmance," that "the supervisor test of Ellerth/Faragher" did not apply. Id. at 411. This Court was convinced, however, upon "review of the concessions and undisputed facts and allegations in the record . . . that Thompson was Wyatt's supervisor – a fact that, for all purposes of this case, [the employer] has judicially admitted as much." Id. "As a preliminary matter," the Court "emphasize[d] that the facts proffered by the parties regarding the supervisor/co-employee determination were not contradicted in the district court: Wyatt pointed to Thompson's authority to direct her daily activities and the representations made to her when she began employment; [the employer] emphasized Thompson's low wage-earning compensation and his inability directly to hire or fire those in Wyatt's position." Id. This Court found it unnecessary to "resolve this difference in viewpoint, however, to reach [the] conclusion that Thompson was Wyatt's supervisor." Id. The Court in Wyatt relied on the deposition testimony of Thompson, the alleged harasser, in which he "described himself as a supervisor" and "[s]pecifically . . . testified that he supervised Wyatt's daily activities." Id. at 411. "More legally determinative than Thompson's self- description as Wyatt's supervisor," the Court ruled, was the employer's "unqualified admission" in its verified answer to the plaintiff's complaint "that from the time she was employed until approximately November 14, 1994, [Wyatt's] immediate supervisor was John Thompson." Id. at 411-12. Based on "this unequivocal judicial admission in the record," the Court "proceed[ed] from the premise that Thompson was Wyatt's immediate supervisor, thereby justifying the application of the Ellerth/Faragher test for vicarious liability." Id. at 412. This Court denied the petition for rehearing or rehearing en banc, see Wyatt v. Hung Plywood Co., 48 Fed.Appx. 108 (5th Cir. 2002), and the Supreme Court denied the petition for certiorari, 537 U.S. 1188 (2003). As in Wyatt, "the facts proffered by the parties regarding the supervisor/co-employee determination were not contradicted in the district court," and "the concessions and undisputed facts and allegations in the record" establish beyond cavil "that [Harrison] was [Jackson's] supervisor – a fact that, for all purposes of this case, [the Company] has judicially admitted" through the sworn testimony of its president, Laroy Thomas. See Wyatt, 297 F.3d at 411. Thomas admitted, under oath, that "Harrison was solely responsible for supervising Jackson and directed him in his daily work activities," and "for giving Jackson detailed instructions regarding his daily work assignments at both the Walnut Church and Mt. Pleasant projects," R. 57 at 29-30; that "supervisors play an integral role in determining what employment decisions are made affecting their supervised employees" and that he "classified Harrison as a supervisor," id. at 17- 18; "that Harrison, as a Superintendent, was substantially involved in employment decisions affecting the individuals he supervised, including decisions relating to pay increases and demotions," id. at 17; "that he consulted with Harrison regarding hiring, firing, and demoting employees," id. at 32; and that the Company authorized Harrison, as a Superintendent, "to fire employees in certain circumstances." Id. at 31. Under this Court's binding precedent, the undisputed facts and sworn testimony of Company president Laroy Thomas establish that Harrison was Jackson's "immediate supervisor, thereby justifying the application of the Ellerth/Faragher test for vicarious liability." See Wyatt, 297 F.3d at 412. Because, on this record, there is no "substantial ground for difference of opinion" in this Circuit that Harrison was Jackson's "supervisor" for purposes of subjecting the Company to vicarious liability for his racial harassment, permissive interlocutory appeal must be denied. 28 U.S.C. § 1292(b). II. Immediate Appeal Will Not Materially Advance the Ultimate Termination of the Litigation Because the Same Evidence and Arguments Are Relevant to Determine Whether the Company Was Aware of the Harassment and the Adequacy of Its Response Under a Vicarious or Negligence Theory of Liability. Even if the sworn admissions of Company president Laroy Thomas did not eliminate any legitimate "difference of opinion" that Harrison was Jackson's supervisor, interlocutory review is not warranted because immediate appeal will not "materially advance the ultimate termination" of this litigation. See 28 U.S.C. § 1292(b). As reflected in the district court's recitation of the parties' evidentiary submissions, see R. 57 at 5-19, genuine issues of material fact necessitate a trial to determine both whether Jackson was subjected to a racially hostile work environment and, if so, whether the Company is liable. Because the same evidence and arguments will be relevant at trial to demonstrate liability, under either a vicarious liability or negligence standard, interlocutory appeal to determine which standard applies will merely delay, rather than advance, the ultimate resolution of this case. Under Faragher and Ellerth, an employer is "vicariously liable for the harassing behavior of [its] supervisory personnel," Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998), "unless the employer can establish both prongs of the conjunctive . . . affirmative defense to vicarious liability now available in a supervisor sexual harassment hostile work environment context." Wyatt, 297 F.3d at 409. "To establish this defense, the employer must show that (1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment and (2) the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer." Id. Under "the negligence standard [which] governs employer liability for co-worker harassment," an employer is "liable . . . if it ‘knew or should have known of the harassment in question and failed to take prompt remedial action.'" Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999) (citation omitted). The "chief difference" between the two standards of employer liability for hostile environment harassment "is that in the negligence context, the plaintiff bears the burden of proving the employer's failure to respond adequately to the harassment, while, in a vicarious liability regime, the defendant must establish the corrective action as an affirmative defense." Swinton v. Potomac Corp., 270 F.3d 794, 804 (9th Cir. 2001). The essential components of both liability standards are the same. See id. at 803 ("[T]he principle embodied in the [Ellerth/ Faragher] defense – that an employer can avoid liability in situations where it acts promptly to remedy harassment – is contained in the requirements for a prima facie case based on negligence."). Because the same evidence and arguments -- as to whether the Company was (or should have been) aware of Harrison's harassment and the adequacy of its efforts to prevent and remedy the racially hostile work environment -- will be relevant regardless of Harrison's status as a supervisor or co-worker, interlocutory appeal to decide that question will merely delay, rather than shorten, the eventual (and inevitable) trial. The Company, in effect, seeks immediate review to obtain a declaration by this Court as to which party should bear the burden of proof at trial on whether the Company had notice of, and adequately responded to, Harrison's racial harassment of his subordinates. The EEOC is fully confident that allocation of the burden of proof on these factual questions can be managed at trial, and preserved for potential appellate review upon final judgment, through carefully crafted jury instructions and jury interrogatories. Conclusion For the foregoing reasons, the EEOC urges this Court to deny the Company's petition for permission to appeal. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ________________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 August 18, 2006 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that on this 18th day of August 2006, I caused one copy of the attached Opposition of the Equal Employment Opportunity Commission to Petition for Permission to Appeal to be sent via first class U.S. mail to: Ned A. Stewart, Jr. Autrey, Autrey & Stewart 501 E. 6th Street Texarkana, Arkansas 71854 ________________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 ********************************************************************************** <> <1> References to the district court record correspond to numbered docket entries, and are denoted “R. ___.” The district court’s summary judgment opinion, R. 57, includes specific references to supporting evidentiary exhibits. <2> The so-called “Statement of Facts” in the Company’s Petition contains no references to the district court record, see Petition at 2-7, and does not reflect a view of the record most favorable to the EEOC, as required given the procedural posture of the case, i.e., the Company’s motion for summary judgment. See Indest v. Freeman Decorating, 164 F.3d 258, 261 (5th Cir. 1999) (summary judgment “movant must demonstrate the absence of a genuine issue of material fact” and “[e]vidence is viewed in the light most favorable to the nonmoving party”) (citations omitted); compare Petition at 2-7 with R. 57 at 11-19 (district court’s recitation of evidence submitted in opposition to summary judgment). In light of these deficiencies, this Court should disregard the Company’s purported factual statement. See 5th Cir. R. 28.2.3 (“Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record where the matter is found.”). <3> Given the record evidence, the EEOC urged the court both to deny the Company’s summary judgment motion, and to “rule, as a matter of law, that should [the EEOC] prevail at trial on the merits of its racial harassment claim, [the Company] is liable for Harrison’s harassment.” R. 57 at 3. <4> The district court was apparently unaware of this Court’s decision in Wyatt. The case is not cited in the parties’ summary judgment briefs or the district court’s opinion.