No. 11-3193 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________________________________ SHANNON J. MANDEL, Plaintiff-Appellant, v. M & Q PACKAGING CORP., Defendant-Appellee. ________________________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania Hon. A. Richard Caputo, Judge ________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF MANDEL AND FOR REVERSAL _________________________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, NE, Room 5SW24L Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . .1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 8 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Contrary to the district court's holding and pursuant to Supreme Court precedent, instances of sexual harassment occurring more than 300 days before Mandel filed her EEOC charge are actionable as part of a single hostile environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. The district court should have considered the incidents of harassment that Mandel described in her EEOC charge but not in her deposition because she signed the charge under penalty of perjury. . . . . . . . . . . . . . . . . . . . . . . . 16 C. The district court should have allowed a jury to determine whether Mandel was subjectively offended. . . . . . . . . . . . 16 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Certificate of Compliance Fed. R. App. P. 32(a)(7)(C); 3d Cir. R. 31.1(c), 46.1(e) Certificate of Service TABLE OF AUTHORITIES Cases Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1998). . . . . . 17 Berry v. Bd. of Supervisors of La. State Univ., 715 F.2d 971 (5th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . .13 Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959 (8th Cir. 1993). . . 17 Clegg v. Falcon Plastics, Inc., No. 05-1826, 174 Fed. Appx. 18 (3d Cir. Apr. 6, 2006). . . . . . . . . . . . . . . . . .16 Cowell v. Palmer Tp., 263 F.3d 286 (3d Cir. 2001). . . . . . . . . . . . 15 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 18 Liotta v. Nat'l Forge Co., 629 F.2d 903 (3d Cir. 1980). . . . . . . . . 16 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . .passim Pruitt v. City of Chicago, 472 F.3d 925 (7th Cir. 2006). . . . . . . . . 15 Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003). . . . . . . . . 18 West v. Phila. Elec. Co., 45 F.3d 744 (3d Cir. 1995). . . . . . . . . 8, 13 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . 1 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Other Authorities EEOC Compl. Man., section 2-IV(C)(1)(b), Timeliness: Hostile Work Environment Claims, 2009 WL 2966756 (Aug. 6, 2009) . . . . . . . . . . . . 14 Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271 (2007-08). . . . . . . . . . . . . . . . . . . . . . .14 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal anti- discrimination statutes. The district court in this case wrongly excluded most of Mandel's evidence of sexual harassment as time barred or otherwise insufficient and then held, based on the reduced evidence, that no reasonable jury could find that she was subjectively offended. Because the district court's assessment of Mandel's claim relies on a flawed understanding of hostile environment law, the EEOC has a strong interest in urging this Court to reverse. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. Did the district court err in holding, contrary to Supreme Court precedent, that incidents which occurred more than 300 days before Mandel complained to the EEOC could not be included in her hostile work environment claim? 2. Did the district court err by disregarding instances of harassment that Mandel did not discuss in her deposition but described in her EEOC charge, which she signed under penalty of perjury? 3. Should the district court have left it for a jury to determine whether Mandel was subjectively offended by the harassing conduct in her workplace? STATEMENT OF THE CASE This is an appeal from the district court's award of summary judgment to M&Q Packaging Corp. A. Statement of Facts M&Q manufactures packaging film and converts it into bags or roll stock to be sold. (R.34-3, Bachert Dep. at 21.) Shannon Mandel performed inside sales and customer relations functions for M&Q for almost eleven years. (R.29-5, Mandel Dep. at 5, 53, 202.) During her term of employment, M&Q never trained its employees about sexual harassment or discrimination. (R.34-2, Conway Dep. at 61.) Mandel occasionally used profanity in the workplace and sent a handful of emails to her colleagues containing sexual humor. (R.34-5, Bachert Dep. Excerpts at 33-39; R.29-5, Mandel Dep. at 162-63, 179-80.) She alleges that her coworkers' conduct went far beyond her own. Mandel testified that she was subjected to a hostile work environment based on her sex throughout her employment. (R.29-5, Mandel Dep. at 300.) If a male manager was in a foul mood, she said, the other men would joke that he was having his period. (R.29-12 at 16, EEOC Charge Questionnaire.) When a female coworker complained that a male colleague was always looking down her shirt, Mandel heard men in the office say that she had asked for it by the way she dressed. (Id. at 19.) One elaborated, "she dresses for attention and flashes her tits." (Id.) Mandel's first official training was a twenty-minute lecture on how to make coffee for Personnel Manager Jack Conway and Department Manager Larry Dahm, two of the men in the office. (R.29-5, Mandel Dep. at 103-04; R.29-12 at 13, EEOC Charge Questionnaire.) She testified that Conway once stood in front of her office waving an empty pot. He told her in a non-joking manner, "Woman, the pot's empty." (R.29-5, Mandel Dep. at 107.) When Mandel complained to her supervisor, George Schmidt, Schmidt laughed. (Id. at 103-04.) "That's just how they are," he said. (Id. at 104.) Mandel testified that for the first year of her employment, Quality Manager Harold Brenneman commented in a leering way approximately three times per week about how "tan and smooth" her legs were. (Id. at 236-37.) He commented about her legs every time she wore a skirt. (Id. at 237.) She testified that Brenneman also made sexual innuendos about the women who worked as his assistants, referring to one as a "tamale." (R.29-12 at 3, EEOC Charge.) Brenneman openly talked about his visits to a massage parlor. (Id.) In 1998, she said, Brenneman asked her how long it would take for her to undress with her newly manicured nails and told her that he fantasized about what it would feel like for her to rub them down his back. (Id.) He also told her he thought of her while having sex with his wife so he could finish. (Id.) Between 2002-2003, Dahm told Mandel 3-5 times that she was "foolish not to use [her] assets" and that she was "sitting on a gold mine, really, sitting on a gold mine." (R.29-5, Mandel Dep. at 239; R.29-12 at 14, EEOC charge questionnaire (emphasis in questionnaire).) Mandel interpreted these comments as a reference to her rear end. (Id. at 241.) Dahm also repeatedly called her hon," "darling," or "Toots" until he left M&Q in 2006. (Id. at 228-29, 233, 235.) He used the term "hon" in a derogatory way, for instance if Mandel forgot to enter an order for him. (Id. at 223.) In 2004 or 2005, coworker Loreen Cunkle told Mandel that Dahm and Conway referred to Mandel as "fluffy" when she was not there. (Id. at 230.) Conway admitted to using this term, testifying that it was an ironic reference to Mandel's moodiness. (R.34-2, Conway Dep. at 85-86.) Mandel also testified that when she was single and not dating, Dahm asked her if she was a "lettuce sniffer," meaning if she was a lesbian. (R.29-12 at 3, EEOC charge.) Coworker Sherri Buckmaster testified that she heard Dahm use this phrase in this way. (R.34-6, Buckmaster Dep. at 57-58.) In 2004, Mandel e-mailed Systems Manager David Benetz to ask for the starting and ending times of a group meeting involving new software for the company. (R.29-16, e-mail of 4/6/04.) Benetz responded by e-mail, "For you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning - maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . . ." (R.29-16, e-mail of 4/7/04.) This e- mail, Mandel testified, changed the nature of her relationship with Benetz because she felt uncomfortable with the tone. (R.29-5, Mandel Dep. at 244.) Throughout Mandel's employment, Conway called her "darling" up to 10 times per month, "Toots" 10-15 times per month, "Woman" 15 times per month, and "missy" 10-15 times per month. (R.29-5, Mandel Dep. at 111, 228-29, 232, 236.) He referred to her as female when he was annoyed, and he sometimes called her "missy" while scolding her. (Id. at 119, 232.) On 10-15 occasions when Mandel wore high heeled shoes during the summer months of 2005 and 2006, Conway referred to the heels as "beat me, bite me" shoes. (Id. at 251-52.) When Mandel told Conway that she needed time off for gynecological surgery in 2006, Conway told her it was a "shame she would stoop to that level to take time off" and likened her to another woman who was out on maternity leave. (Id. at 247; R.29-12 at 3, EEOC Charge.) Mandel interpreted this to mean that Conway considered it stooping to a low level to take time off work for "female issues." (R.29-12 at 3, EEOC Charge.) Mandel testified that she probably referred to Conway as an "asshole" to her husband and to a female friend at work. (R.29-5, Mandel Dep. at 122.) Plant manager Ernie Bachert used terms such as "hon," "babe," and "sweetie" in the workplace. (R.34-6, Buckmaster Dep. at 55.) At least once a month during Buckmaster's employment, Bachert commented that Mandel was attractive and that her clothes should be more revealing. (Id. at 92.) Bachert also repeatedly called Mandel a bitch, both directly in her presence and also when she was not there. (Id. at 58-59; R.29-5, Mandel Dep. at 158-61.) "I don't know who she thinks she is," he would say. "She's such a bitch." (R.34-6, Buckmaster Dep. at 58-59.) Buckmaster heard Mandel ask Bachert to leave her office several times because he was being inappropriate. (Id. at 43-44.) On one such occasion, Buckmaster testified, she heard Bachert become loud and abusive with Mandel, calling her a bitch and telling her that a production matter was "none of [her] damn business." (Id. at 95.) Mandel testified that Bachert leaned over her, screaming "shut the fuck up." (R.29-5, Mandel Dep. at 162-63.) He also threatened to put something negative in Mandel's personnel file. (Id. at 146.) Once in December 2006, after Mandel told Bachert that she was going to a chiropractor because she had fallen and hurt herself, Bachert asked her if she had hurt herself having sex. (Id. at 254; R.29-12 at 3, EEOC Charge.) Buckmaster testified that Mandel complained to her approximately three times about Bachert's inappropriate comments, saying that she felt "very uncomfortable." (R.34-6, Buckmaster Dep. at 164.) On three occasions when he came to Mandel's facility beginning in 2006, Vice President of Sales Curt Rubenstein asked Mandel for dates with the implied purpose of having sex. (R.29-5, Mandel Dep. at 227.) He asked her to go the gym and work out with him, go out to dinner, and then go back to where he was staying. (Id.) When Mandel wore a dress to work, in another veiled reference to sex her male coworkers often asked her whether she had a date or was having lunch at a hotel across the street. (R.29-12 at 13, EEOC Charge Questionnaire.) In 2006, Mandel began reporting to Managing Director Michael Schmal. Schmal told her during a performance review that she was "too female" and "too emotional." (R.29-5, Mandel Dep. at 258.) He also reprimanded her for not attending the company's 2006 holiday luncheon, saying that her absence was disrespectful. (Id. at 262-64.) When she tried to explain that she had not attended because she was unwell, Schmal told her to "shut her mouth." (Id. at 264.) That same month, Schmal told Mandel to make sure the bathroom was "presentable" before a corporate executive luncheon. Mandel took this to mean that she should clean the bathroom, which she did, including the urinals. (Id. at 259-60.) During a meeting in April 2007, Bachert referred to Mandel as a "bitch" and told her to "shut the fuck up." (Id. at 161-62.) Mandel gave notice of her resignation shortly thereafter. (R.29-8, Resignation Letter.) B. District Court Decision The district court granted M&Q's motion for summary judgment. (R.39 at 26, Order.) The court observed that under Title VII, a claimant must file a complaint with the EEOC within 300 days of the alleged unlawful employment practice before pursuing remedies in federal court. (R.39, Slip Op. at 12.) Quoting National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the district court acknowledged that "a hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice.'" (Id. at 13.) Nevertheless, the court turned to pre-Morgan case law in considering "whether the nature of the violations should trigger the employee's awareness of the need to assert her rights." (Id. at 14 (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 n.9 (3d Cir. 1995).) Here, the court held, Mandel failed. "Although no one incident may have had a significant degree of permanence," the court said, "ten years of experiencing persistent harassment is sufficiently permanent that it should have triggered Mandel's awareness of the need to assert her rights." (Id. at 15.) Thus, the district court held, "to the extent that she alleges claims involving acts that occurred prior to February 14, 2007 (three hundred days prior to her filing the EEOC charge), those claims are time barred." (Id.) For separate reasons, the district court sustained M&Q's objection to specific incidents of harassment that Mandel discussed in her EEOC intake questionnaire but did not testify about in her deposition. (Id. at 4.) "Because a party must present more than 'bare assertions' or 'conclusory allegations' to overcome summary judgment," the court said, "these incidents will not be considered." (Id. (internal quotations omitted).) Accordingly, the district court neither considered nor mentioned Mandel's being asked by male coworkers when she wore a dress to work whether she had a date or was having lunch at a hotel across the street, Brenneman's fantasy of having Mandel run her nails down his back, his statement that he thought about Mandel while having sex with his wife, or Dahm's inquiry whether Mandel was a "lettuce sniffer." (Id.; see also R.35, M&Q Reply at 4-5 (objecting to portions of Mandel's statement of facts on ground that Mandel had not testified to those facts in her deposition).) M&Q did not specifically object to other factual allegations that Mandel described only in her signed charge questionnaire, but the district court ignored these other allegations as well. Limiting its analysis to Rubenstein's requests for dates, Conway's name calling, Bachert's question about whether Mandel had hurt herself having sex, Bachert's calling Mandel a bitch, Mandel asking Bachert to leave her office, Schmal asking Mandel to make sure the bathroom was presentable, and Schmal's reprimanding Mandel for not attending the holiday party (R.39, Slip Op. at 18, 20), the district court concluded that the challenged conduct was sufficiently pervasive to constitute sexual harassment. (Id. at 20-21.) However, the court held that Mandel could not survive summary judgment because no reasonable jury could conclude that she found this conduct to be subjectively offensive. (Id. at 21.) "Mandel's use of explicit language and her e-mails involving ongoing sexual jokes demonstrate a casual ease with this type of workplace behavior," the court said. "The use of sexual humor does not on its own demonstrate that Mandel is incapable of being offended by degrading comments, but when combined with a lack of evidence of any subjective distress, a reasonable jury could not find that Mandel has proven that the harassment had a detrimental effect on her." (Id.) Summary of Argument At issue in this case is whether older conduct contributing to a longstanding hostile work environment may be disregarded as time barred. In the past, this Court has examined whether the earlier conduct and the later conduct were a "continuing violation," which depended upon factors such as the subject matter, frequency, and degree of permanence of the underlying acts. The continuing violations doctrine permitted some plaintiffs to establish liability based in part on long-ago instances of harassment but only if they had not waited an unreasonably long time to file suit. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court overruled this approach. The Morgan Court held that all instances of harassment may be considered as long as "an act contributing to the claim occurs within the filing period." 536 U.S. at 117. The district court in the instant case wrongly applied pre-Morgan law, held that Mandel had waited too long to complain about sexual harassment, and limited the scope of her claim to harassment that occurred within 300 days of her charge. Although the court found that this evidence was sufficient to demonstrate pervasive hostility, it said that Mandel's claim failed because no jury could find that she was subjectively offended by the conduct. If the court had considered all of the harassing conduct and all the evidence of Mandel's reactions, it most likely would not have ruled this way. In any event, whether Mandel was subjectively offended was a question for a jury, not for the court on summary judgment. For these reasons, the EEOC urges reversal. Argument A. Contrary to the district court's holding and pursuant to Supreme Court precedent, instances of harassment occurring more than 300 days before Mandel filed her EEOC charge are actionable. The district court erred in ruling that incidents that occurred more than 300 days before Mandel complained to the EEOC could not be included in her hostile work environment claim. In Morgan, the Supreme Court held that, because a hostile work environment claim is a single claim involving repeated conduct over a period of time, a challenge to the entire hostile work environment is timely as long as "an act contributing to the claim occurs within the filing period." 536 U.S. at 117. The Court stated, "The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and liability." 536 U.S. at 118. The district court's focus on whether Mandel should have objected earlier to the harassment stems from pre-Morgan case law involving "continuing violations." Prior to Morgan, this Court permitted a plaintiff to rely on conduct that occurred outside the statutory filing period only if the plaintiff could satisfy a multi-factor test involving "(1) subject matter - whether the violations constitute the same type of discrimination; (2) frequency; and (3) permanence - whether the nature of the violations should trigger the employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate." West v. Phila. Elec. Co., 45 F.3d 744, 755 n.9 (3d Cir. 1995) (hostile environment case adopting test from Berry v. Bd. of Supervisors of La. State Univ., 715 F.2d 971, 981 (5th Cir. 1983)). The Morgan Court specifically rejected this approach. 536 U.S. at 107-08 & n.3. In Morgan, the Supreme Court observed that Title VII requires a victim to file a charge of discrimination within 300 days of an "unlawful employment practice." Noting that "a hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice,'" the Court reasoned that "the timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. 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." 536 U.S. at 117. The Morgan Court specifically rejected the approach taken by the district court in this case. The Court explained, "It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct." Morgan, 536 U.S. at 117-18. As one commentator has noted, this holding protects plaintiffs from having to guess at what point their claim becomes viable: A sensitive employee who filed a charge early on might find that the objective component of his or her claim had not been satisfied, and that he or she burned [his or her] bridge with an employer by seeking redress. On the other hand, a hardier employee who tried to wait out the hostile environment may discover that his or her claim had accrued well outside of the limitations period, making it impossible for him or her to recover for . . . the initial offensive incidents comprising the environment. Kyle Graham, The Continuing Violations Doctrine, 43 Gonz. L. Rev. 271, 303 (2007-08); see also EEOC Compl. Man., section 2-IV(C)(1)(b), Timeliness: Hostile Work Environment Claims, 2009 WL 2966756 (Aug. 6, 2009) (all incidents that are part of a hostile work environment claim are actionable, including "incidents that occurred outside the filing period that the charging party knew or should have known were actionable at the time of their occurrence"). The Morgan Court acknowledged a concern that employers might be unfairly prejudiced if employees wait an unreasonably long time to file suit. 536 U.S. at 121. Although such a claim would not be time barred, the Court said, "an employer may raise a laches defense, which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant." Id.; see also Pruitt v. City of Chicago, 472 F.3d 925, 928-30 (7th Cir. 2006) (exploring implications of laches defense to a hostile environment lawsuit). Whether a laches defense might be appropriate in the instant lawsuit is not at issue. In light of Morgan, the district court erred in considering a large part of Mandel's harassment to be time-barred. As long as the acts occurring within 300 days of her charge were part of the same hostile work environment as the earlier harassment, Mandel should be free to challenge all of the offensive conduct. Mandel's evidence meets this test, as the harassment both inside and outside the 300 day period was committed in part by the same individuals and consisted of similar conduct. See Cowell v. Palmer Tp., 263 F.3d 286, 292 (3d Cir. 2001) (violations that constitute the same type of discrimination tend to be connected). In both the earlier and later time frame, Mandel was frequently called names such as "hon" and "Toots." Rubenstein asked her for dates both inside and outside the 300 day period. Coworkers speculated about her sexual activity throughout her employment, asking her early on whether she was a lesbian and asking later whether she had hurt herself having sex. The similar nature of the earlier and later harassment is consistent with the Morgan Court's description of a hostile environment: the harassment "occurs over a series of days or perhaps years" and "claims are based on the cumulative effect of individual acts." 536 U.S. at 115. B. The district court should have considered incidents of harassment that Mandel described in her EEOC charge, which she signed under penalty of perjury. The district court erred by disregarding specific instances of harassment that Mandel discussed in her signed EEOC charge but did not testify about in her deposition. The district court wrongly characterized these incidents as "bare assertions" or "conclusory allegations." (R.39, Slip Op. at 4.) To the contrary, Mandel's description of the incidents in her charge is evidence that the incidents took place. Her charge is a sworn statement describing events that she personally witnessed. (See R.29-12 at 2, 3, 5, 10, 25, 27 (signatures under penalty of perjury).) The factual details make her descriptions more than "bare assertions" or "conclusory allegations." The district court should consider the instances of harassment on remand. See Liotta v. Nat'l Forge Co., 629 F.2d 903, 907 (3d Cir. 1980) (affidavit attached to EEOC charge raises genuine issue of material fact, precluding summary judgment). C. The district court should have allowed a jury to determine whether Mandel was subjectively offended. The district court should have left it for a jury to determine whether Mandel was subjectively offended by the harassing conduct in her workplace. See Clegg v. Falcon Plastics, Inc., No. 05-1826, 174 Fed. Appx. 18, 25 n.7 (3d Cir. Apr. 6, 2006) ("We believe that '[t]he inherently subjective question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns primarily on credibility determinations which are inappropriate for summary judgment.'") (citation omitted); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1108 (8th Cir. 1998) (whether conduct was unwelcome "is a fact question for the jury and 'will turn largely on credibility determinations'") (citation omitted). Had the district court considered the evidence it viewed as time-barred or otherwise insufficient, it would more easily have recognized the disparity between Mandel's own workplace conduct (which it used to find that Mandel could not have objected to the alleged harassment) and the conduct of her colleagues. Mandel occasionally used profanity in the workplace or sent colleagues emails containing sexual humor. (R.34-5, Bachert Dep. Excerpts at 33-39; R.29-5, Mandel Dep. at 162-63, 179-80.) In contrast to this behavior, Benetz responded to Mandel's request for information about a meeting by propositioning her (R.29-16, e-mail of 4/7/04), and Brenneman told her that he thought of her while having sex with his wife so he could finish. (R.29-12 at 3, EEOC Charge.) A jury could reasonably conclude that Mandel did not invite these personal comments and that, her own conduct notwithstanding, she was offended by them. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 963 (8th Cir. 1993) (district court erred holding that plaintiff who posed nude in magazine could not be offended by workplace harassment; question is whether "plaintiff welcomed the particular conduct in question from the alleged harasser"). Additionally, had the district court considered Mandel's reactions over the entire time span, it would not have found "a lack of evidence of any subjective distress." (R.39, Slip Op. at 21.) Evidence shows that early in her employment, Mandel complained to her supervisor about having to make coffee for two male coworkers but her supervisor laughed. (R.29-5, Mandel Dep. at 103-04.) A reasonable jury could find that by complaining about this task, Mandel indicated that she did not want to be treated differently based on her sex. Mandel complained to Buckmaster approximately three times about Bachert's offensive conduct. (R.34-6, Buckmaster Dep. at 164.) She also complained about Conway to her husband and a female friend at work. (R.29-5, Mandel Dep. at 122.) Mandel repeatedly asked Bachert to leave her office because of his behavior. (R.34-6, Buckmaster Dep. at 43-44.) Given that Bachert called Mandel a "bitch" both to her face and behind her back (id. at 58-59; R.29-5, Mandel Dep. at 158-61), a jury could find that Mandel was subjectively offended by this derogatory term. See Thomas v. Town of Hammonton, 351 F.3d 108, 117 n.6 (3d Cir. 2003) ("bitch" means "a female canine" or "a malicious, spiteful, and domineering woman") (citation omitted). Finally, Mandel complained to the EEOC. (R.29-12, EEOC Charge.) This, too, is evidence that she was subjectively offended. See Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1036 n.4 (9th Cir. 2005) (fact that plaintiff complained to the EEOC is relevant to whether she found conduct subjectively offensive). Conclusion The district court erroneously narrowed the scope of evidence in this case and then relied on the incomplete facts to find that Mandel was not subjectively offended by a hostile work environment. When all of the relevant evidence is considered, Mandel's subjective reaction is a question of fact. This Court should reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN, Attorney Maryland Bar # 199101080003 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE Fed. R. App. P. 32(a)(7)(C) 3d Cir. R. 31.1(c), 46.1(e) Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I certify that this brief was prepared with Microsoft Office Word 2003 and that it uses the proportionally spaced Times New Roman font, size 14 point. I further certify that this brief contains 4,358 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Office Word 2003 word-count function. Pursuant to Rule 31.1(c) of the Third Circuit Rules, I certify that the text version of the electronic brief is identical to the text in the paper copies. I further certify that the Trend Micro OfficeScan virus detection program, version 10.5.1766, has been run on the electronic file and that no virus was detected. Pursuant to Rule 46.1(e) of the Third Circuit Rules, I certify that I am a federal attorney and therefore not required to be a member of the bar of this Court. s/ Gail S. Coleman_________________ GAIL S. COLEMAN, Attorney Maryland Bar # 199101080003 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed an original plus nine paper copies of the foregoing amicus brief with the Court by first-class mail, postage pre- paid, on this 22nd day of December, 2011. I also certify that on this 22nd day of December, 2011, I submitted the foregoing amicus brief electronically in PDF format through the Electronic Case File (ECF) system. I certify pursuant to Rule 113.4(c) of the Third Circuit Rules that all parties of record are Filing Users of the ECF system and will be served electronically by the Notice of Docket Activity. s/ Gail S. Coleman_________________ GAIL S. COLEMAN, Attorney Maryland Bar # 199101080003 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov