No. 07-20738 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ ROBIN MIRE, Plaintiff-Appellant, v. TEXAS PLUMBING SUPPLY CO., INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Southern District of Texas Houston Division ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL ____________________________________________ RONALD S. COOPER JULIE L. GANTZ General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION VINCENT J. BLACKWOOD Office of General Counsel Assistant General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT I. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE SEXUAL HARASSMENT TO WHICH MIRE WAS SUBJECTED WAS INSUFFICIENTLY SEVERE OR PERVASIVE TO CONSTITUTE A HOSTILE WORK ENVIRONMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 II. THE DISTRICT COURT ERRED IN CONCLUDING THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT MIRE'S SUPERVISOR'S DECISION TO FIRE HER TWO DAYS AFTER SHE COMPLAINED TO HIM OF SEXUAL HARASSMENT WAS RETALIATORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Andrews v. City of Philadelphia, 895 F.3d 1469 (3d Cir. 1990). . . . . . . . . 17 Beardsley v. Webb, 30 F.3d 530 (4th Cir. 1994). . . . . . . . . . . . . . . 14 DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 594 (5th Cir. 1995). . 15 EEOC v. WC&M Enters., 496 F.3d 393 (5th Cir. 2007). . . . . . . . . . . . . . . 16 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996). . . . . . 13 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . 13, 15, 16, 18 Harvill v. Westward Commc'ns, 433 F.3d 428 (5th Cir. 2005). . . . . . . . . 13, 15 Lauderdale v. Tex. Dep't of Criminal Justice, No. 06-41636, 2007 WL 4465204 (Dec. 21, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007). . . . . . . . . . . 20 Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001). . 16 Septimus v. Univ. of Houston, 399 F.3d 601 (5th Cir. 2005). . . . . . . . . 20 Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992). . . . . . . . . 21 Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802 (5th Cir. 2007). . . . . 20 Swanson v. Gen. Servs. Admin., 110 F.3d 1180 (5th Cir. 1997). . . . . . . . . 19 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997). . . . . . . . . . . . . . . . . 19 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999). . . . . . . . . 17 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . 1 42 U.S.C. § 2000e-2(a). . . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . 19 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RULES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal statutes prohibiting employment discrimination. See 42 U.S.C. § 2000e-5. In this action, the district court held that the evidence, including evidence that for several months, the plaintiff was the object of daily comments about her body and a supposed affair she was having with a co-worker, was not sufficient to support a finding that she was subjected to a hostile work environment. In making this determination, the district court improperly evaluated each incident of harassment in isolation without considering the offensive behavior collectively. The court also determined that the plaintiff could not establish a causal connection between her complaints of harassment and her termination notwithstanding the fact that she was fired two days after she complained to management. Unless corrected by this Court, the district court's analysis of both issues would unfairly limit the ability of victims of harassment to obtain redress under Title VII and would adversely affect the Commission's enforcement of the statute. We therefore offer our views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES 1. Whether evidence that the plaintiff was subjected to sexually suggestive comments and sexual propositions on a daily basis, along with evidence of inappropriate touching, is sufficient to support a finding that the plaintiff was subjected to a sexually hostile work environment in violation of Title VII. 2. Whether evidence that the plaintiff, who had received no complaints about her job performance in her five years with the company and had received a recent bonus and raise, was fired by a manager two days after she complained to him about being sexually harassed is sufficient to support a finding that she was fired in retaliation for her complaint of sexual harassment. STATEMENT OF FACTS Robin Mire began work as a clerk in the accounts payable department at Texas Plumbing Supply ("TPS") in Houston, Texas, in January 2000. Record on Appeal ("ROA") 146 (Mire Dep. 71). Mire's supervisor was Margaret Anthony, TPS's office manager. ROA 322 (Mire Dep. 77); ROA 76 (Snyder Dep. 8). In her five years with the company, Mire received no complaints about her job performance. ROA 340 (Mire Aff. at 1). She was given a 10% raise in June 2004 and a $4,000 bonus in December 2004. Id. Terry Snyder, a TPS co-owner, testified that pay raises and bonuses are based in part on an employee's performance. ROA 90-91. In late 2004, a rumor circulated that Mire was having an affair with Don Pearson, a TPS salesman. ROA 102-03 (Flowers Dep. 5-6). Ethan Flowers, TPS's human resources director, testified that talk of the affair "escalated quite a bit toward the end of 2004." ROA 103. When someone at TPS called Mire's husband to tell him of the rumor, Mire complained to Flowers that "people were getting out of hand." ROA 103, 107 (Flowers Dep. 6, 9). After Pearson left TPS, Ray Rhodes, a sales employee, asked Mire if she was upset that her "lover boy" had left. ROA 323 (Mire Dep. 81). Rhodes told Mire that everyone knew what was going on with her and Pearson, which reduced her to tears. Id. (Mire Dep. 82). When she told Anthony about Rhodes' comments, Anthony said Rhodes "is just like that." ROA 322 (Mire Dep. 80). Mire worked upstairs in TPS's administrative offices, while the sales employees worked downstairs. ROA 322 (Mire Dep. 77-78). Mire went downstairs many times a day to take invoices to the sales area and to take smoking breaks. ROA 326 (Mire Dep. 93-94). After the rumor of Mire's alleged affair became rampant, TPS's male employees frequently made sexually suggestive comments to her when she passed them. ROA 322-23, 327 (Mire Dep. 80-84, 100). Mire testified that there were "always little comments made" about her appearance, particularly her breasts, legs, and buttocks. ROA 335. For example, Ricky Garza, one of the salesmen, commented on her body "all the time. He would talk about how good my butt looked." ROA 323. Garza also asked Mire if she had had a "boob job" and if he could touch her breasts. ROA 323, 334, 335. When Mire reported these remarks to Anthony, she responded that Garza "was perverted and always on the computer with sex." ROA 334 (Mire Dep. 142). On one occasion, while Mire was downstairs at the store's sales counter smoking a cigarette, salesperson Kenny Taylor told her, in front of customers, that her "jeans made [her] ass look really good." ROA 324 (Mire Dep. 85-86). Johnny Booth, another sales employee, would say things like, "I hate to see you leave, but I like to see you walk away." ROA 325 (Mire Dep. 89). Mire testified that Booth made that comment whenever she clocked out at the end of the day. ROA 336. Mire reported Taylor's comment and at least one of Booth's comments to Anthony. ROA 324, 337 (Mire Dep. 86, 156). Another coworker, Kenny Tillmon, referred to Mire's buttocks as "junk in the trunk" "several times" when Mire went downstairs to take a smoking break. ROA 325, 337 (Mire Dep. 89-90, 153-54). Tillmon made this comment in front of customers. ROA 337 (Mire Dep. 153). When Mire complained to Anthony, Anthony responded that Mire should not have been standing at the counter and that she should go outside to smoke. Id. (Mire Dep. 154). Mire testified that such sexually suggestive comments were an "everyday thing." ROA 335 (Mire Dep. 148). She recounted that, "It got to the point that every time I would walk downstairs, something was said. It got to where I didn't hardly go downstairs anymore." ROA 325-26 (Mire Dep. 92-93). Additionally, on one occasion, Snyder, one of the owners of the company, walked in to Anthony's office when Mire was there filing invoices, and, referring to Mire, said, "Oh, a woman on her knees. That's what I like to see." ROA 338 (Mire Dep. 158). Mire interpreted this as "a sexual comment." Id. Mire testified that Snyder had made similar comments "probably 20 times." ROA 338 (Mire Dep. 159). Mire also testified that an employee known as "Fidel" "would always whistle" at her. ROA 323. One day, in TPS's kitchen, Fidel pulled her into a dance pose and said, "Dance, dance, baby" and suggested that they go to a club he knew. Id. When she asked him if his wife was going to be there, he responded, "No, just me and you baby." Id. Mire told Fidel that she did not want to go out with him, and asked him to let her go because she had work to do. ROA 324 (Mire Dep. 85). Mire recalled that Anthony walked past Mire and Fidel during this exchange, looked at them, but said nothing. ROA 323 (Mire Dep. 84). Mire testified that she said to Anthony, "did you see that? That's what I'm talking about." ROA 335 (Mire Dep. 146). According to Mire, Anthony said she would take care of it. Id. The alleged harassment was not limited to verbal innuendos. Mire testified that Steve Anthony, Margaret Anthony's husband who also worked at TPS, would come upstairs when Margaret was not there and "he would grab my hand, I'd pull my hand back, or if he was talking to me he would put his hand on my shoulders and kind of [rub my shoulders]." ROA 338 (Mire Dep. 160). Mire testified that Steve once put his arm around her. Id. Additionally, on one occasion, sales employee Sonny Ackley grabbed Mire's buttocks. ROA 323, 338 (Mire Dep. 83, 157). Mire testified that she reported the incident to Anthony, who said the company "should have made Sonny retire a long time ago . . . but that Terry [Snyder] would never do that to Sonny." ROA 338 (Mire Dep. 157). At a monthly staff meeting on February 1, 2005, Flowers, without specifically referring to Mire, stated that "the spreading of rumors would not be tolerated," and was "cause for termination." ROA 326 (Mire Dep. 96). Mire thought the meeting went well and thanked Flowers. ROA 324 (Mire Dep. 87). However, later that day, Ackley called Mire and told her that, although "he was an old man, he could still get it up and if I wanted to give it to somebody, give it to him." ROA 324, 330 (Mire Dep. 87, 111-112); ROA 142 (EEOC charge). Mire hung up on him and reported his proposition to Flowers the following day, February 2, 2005. ROA 331 (Mire Dep. 113); ROA 142 (EEOC charge). Flowers fired Mire two days later. ROA 331 (Mire Dep. 113); ROA 142 (EEOC charge). Mire testified that Flowers told her that "we're going to have to let you go" and that she was not doing her job. ROA 333 (Mire Dep. 127). Flowers did not provide Mire with any examples of tasks she had failed to perform or mistakes she had made. Id. (Mire Dep. 128). Flowers testified that he made the decision to fire Mire "based upon work performance." ROA 111. Flowers stated that Mire took an excessive number of smoking breaks, and had made errors reconciling checks and deposits on three occasions in the fall of 2004. ROA 66 (Flowers Decl. 5); ROA 121-22 (Flowers Dep. 24-25). Flowers also testified that in late 2004, Mire told him she should not have to do the filing. ROA 121-22. Flowers acknowledged that there was no documentation of these alleged job deficiencies. ROA 130. When Mire asked Snyder why she had been fired, Snyder stated that he did not know and that he was sorry. ROA 332 (Mire Dep. 122). Snyder testified that it was Flowers' decision to fire Mire, but that he had discussed her "erratic job performance" with Flowers. ROA 75. Snyder testified that Mire had a pattern of not being at her work station when she was supposed to, and that she "was creating a combative atmosphere around here, she was making a lot of mistakes." ROA 76. However, Snyder did not specify any mistakes Mire made, and testified, "I'm not sure exactly why she got fired." ROA 82. In support of its motion for summary judgment, TPS offered a two-page Employee Exit Interview form dated February 4, 2005. ROA 292-93. The first page of the form is blank, including the line for the terminated employee's signature. ROA 292. The second page lists the reason for termination as "combative personality, continual dishonesty, and lack of job performance." ROA 293. Flowers testified that he filled out the form as he was telling Mire she was being fired, but did not have a chance to give it to Mire to sign because, when she learned she was being fired, she angrily left Flowers' office and "stormed to her desk." ROA 134. DISTRICT COURT DECISION The district court granted the defendant's motion for summary judgment, "but not for the reasons argued by TPS." Record Excerpts ("R.E.") 9. The court rejected the company's argument that there was no evidence that Mire was subjected to an unwelcome hostile work environment based on her sex simply because its employees contradicted Mire's allegations of harassing conduct. R.E. 34. The court noted that TPS "ignores Mire's deposition testimony, which contradicts its own" and did not challenge its admissibility. Id. According to the court, the fact that Mire's coworkers did not testify in support of her claim is "not dispositive." Id. The court stated, however, that the Fifth Circuit has rejected as insufficiently offensive claims "that were far more offensive, pervasive, and severe than those alleged by Plaintiff." R.E. 36. Specifically, the court found the facts of this case less egregious than one case where the court of appeals held there was no hostile work environment (R.E. 36-37, citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872 (5th Cir. 1999)), and two cases where the court of appeals found that there was sufficient evidence of a hostile work environment. R.E. 37-40 (discussing Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996) and Waltman v. Int'l Paper Co., 875 F.2d. 468, 470-71 (5th Cir. 1989)). The court stated, "Applying a totality of the circumstances review, . . . Plaintiff's factual allegations do not rise to the level of those in the above cases and are insufficient to establish under Title VII . . . a hostile and abusive work environment claim in which the alleged sexual harassment was so severe and pervasive that it unreasonably interfered with Plaintiff's work performance." R.E. 40. The court emphasized that "a key point here is that Plaintiff insists that she completed all her work, i.e., that the alleged harassment did not interfere with her job performance." Id. The court stated that it would examine "the nature of each incident alleged by Plaintiff . . . to constitute sexual harassment and the context in which it occurred to demonstrate why individually or collectively they are not sufficiently severe and pervasive as to constitute a hostile or abusive workplace." R.E. 40-41. The court stressed that the plaintiff worked for TPS for five years but "claims she was subjected to the alleged harassment at most for only the last four months" and that Mire's EEOC charge "targets only a couple of months of harassment." R.E. 41. In the court's view, such a "limited period of alleged harassment does not support a 'severe' and 'pervasive' abusive environment." R.E. 41. The court then went through each allegation of offensive conduct and dismissed it as either not offensive or not sufficiently severe or pervasive. The court found that "the unsubstantiated general rumor" that Mire and coworker Pearson were having an affair did not "constitute sexual harassment" because it was not sufficiently offensive and because Flowers addressed the spreading of unfounded rumors at a monthly staff meeting. R.E. 41-42. The court determined that Ray Rhodes' asking Mire if she was upset that her "lover boy" was gone, "[o]bjectively . . . was not severe harassment" because Rhodes did not proposition her, or make a "sexual comment," and it was the only comment he ever made about the matter. R.E. 42-43. The court determined that Mire's testimony regarding Fidel pulling her into a dance pose in front of Anthony "does not indicate that either she or her supervisor was severely offended by the action." R.E. 43. The court also stated that, although Mire testified that Fidel "would always whistle" at her, she did not testify that "he was whistling at her[] in a sexual manner." R.E. 43 n.20. Instead, the court characterized the exchange between Mire and Fidel as "harmless workplace flirtation, confined to a single instance" and not "severe and pervasive sexual harassment." R.E. 44. According to the court, Mire's testimony does not "suggest she was physically threatened or intimidated or humiliated by this harmless act." R.E. 44. The court acknowledged Mire's testimony that Ackley "once grabbed her behind" and another time suggested that Mire should have sex with him, but reasoned that, because Mire "voluntarily" made the phone call during which Ackley "made a dirty comment," there is "not severe sexual harassment involved here." R.E. 45. The court stated that Garza's comments about "how good [Mire's] butt looked" were not severely offensive to her because Mire testified that she initially thought his comments were compliments. R.E. 45. The court found that Garza's asking Mire if she had a "boob job" and if he could touch her breasts "is more serious and certainly offensive" but Mire "does not claim that Garza inappropriately touched her" nor that she was "intimidated" or showed "signs of stress from the incident." Id. The court noted that Mire's reaction to Taylor's comments that her jeans "made my ass look really good" was to flirt back because she was "'embarrassed.'" R.E. at 45. According to the court, such a reaction indicated that "she was not humiliated or incensed." Id. The court found that the multiple comments by Booth (that he loved to see Mire walk away) and Tillmon (about the "junk in her trunk") "were vague and not threatening nor of the severity necessary to sustain an abusive work environment claim." R.E. 45-46. In summary, the court stated, "None of the charged speakers is alleged to have had sex with Plaintiff, none physically threatened her, and none charged that she was incompetent to perform her job because of her sex," nor did any of the alleged harassers "prevent[] her from succeeding in the workplace or interfere[] with her opportunity to do so." R.E. 46. The court also dismissed Mire's retaliation claim, determining that she failed to "provide any evidence of a causal connection between her protected opposition and her discharge other than their close proximity in time." R.E. 47. In the court's view, Mire offered "only her subjective belief that the[y] were causally related, clearly not competent summary judgment evidence." Id. The court held that because the company asserted a legitimate, nondiscriminatory reason for Mire's termination, Mire was required to "do more than assert the close proximity in time between her complaints of sexual harassment by fellow employees and her termination; she must 'offer some evidence from which the jury might infer the real motive.'" R.E. 47-48 (quoting McCoy v. City of Shreveport, No. 06-30453, 2007 WL 1991042, *2 (5th Cir. 2007)). According to the court, Mire "has not shown that, but for her purported complaints to Anthony, Flowers and Snyder, the adverse employment action would not have occurred." Id. at 48. Furthermore, the court stated, Mire has not "produced substantial evidence demonstrating that TPS's articulated reasons for her dismissal were pretextual." R.E. 48. ARGUMENT I. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE SEXUAL HARASSMENT TO WHICH MIRE WAS SUBJECTED WAS INSUFFICIENTLY SEVERE OR PERVASIVE TO CONSTITUTE A HOSTILE WORK ENVIRONMENT. Section 703(a) of Title VII makes it unlawful for an employer to discriminate on the basis of sex with respect to "terms and conditions of employment." 42 U.S.C. § 2000e-2(a). This provision is violated when sexual harassment in the form of "discriminatory intimidation, ridicule, and insult . . . 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) (internal quotation marks and citations omitted); see also Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (citing Harris). The district court held that the evidence in this case was insufficient to support a finding that the harassment of Mire was sufficiently severe or pervasive to constitute a hostile work environment. In reaching this conclusion, the court made several fundamental errors in its analysis of Mire's hostile work environment claim. First, the district court appears to have lost sight of the fact that the issue is not whether the court finds the offensive conduct sufficiently severe or pervasive to alter the plaintiff's work environment, but whether a reasonable jury could so find. See Harvill v. Westward Commc'ns, 433 F.3d 428, 436 (5th Cir. 2005) (issue on summary judgment is whether a reasonable jury could find the conduct sufficiently severe or pervasive to alter a term or condition of the plaintiff's employment). Accordingly, a district court may grant summary judgment on this issue only if, construing the record in the light most favorable to the plaintiff, no reasonable jury could find that the alleged conduct was sufficiently severe or pervasive to constitute a hostile work environment. See Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (whether harassment is sufficiently severe or pervasive is "quintessentially a question of fact"). Much of the district court's discussion of the harassment claim is couched in terms of whether the court itself found the incidents of harassment offensive or serious enough to warrant legal redress. See, e.g., R.E. 41 ("The Court does not find that the unsubstantiated general rumor constituted sexual harassment."); R.E. 42 ("Objectively the Court finds that the remark [asking Mire about her "lover boy"] was not severe harassment."); R.E. 45 ("[A]lthough he made a dirty comment, there is not severe sexual harassment involved here."). Reasonable minds can differ on the question of whether a particular pattern of harassment is sufficiently severe or pervasive. In this case, even if the district court judge did not find the harassment serious, a reasonable jury could disagree. Accordingly, summary judgment was not warranted. Factors to be considered in determining whether harassment could be found to constitute a hostile work environment include "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," although "no single factor is required." Harris, 510 U.S. at 23; DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). The sexually suggestive comments, sexual propositions and innuendoes, and inappropriate touching to which Mire was subjected- assessed collectively rather than in isolation-would support a finding that the environment was sufficiently severe or pervasive to alter Mire's working conditions because of her sex.<1> The district court erred by suggesting that Mire's claim could not succeed because she asserts that she continued to perform her job adequately despite the harassment. See R.E. 40 ("A key point here is that Plaintiff insists that she completed all her work, i.e., that the alleged harassment did not interfere with her job performance."). While the effect on the victim's ability to do her job is a relevant factor in assessing the severity of workplace harassment, this Court recently held that "[a] showing that the employee's job performance suffered is simply a factor to be considered, not a prerequisite." EEOC v. WC&M Enters., 496 F.3d at 399-400; see also Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 524 n.33 (5th Cir. 2001) ("Tangible detriment to an employee's work performance is only one factor to be considered in a hostile work environment claim."); Harris, 510 U.S. at 25 (Ginsburg, J., concurring) ("It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered the working conditions as to 'make it more difficult to do the job.'") (internal citations omitted). A contrary rule would unfairly penalize victims of harassment who manage to perform their jobs notwithstanding the difficulties posed by their hostile working conditions. "[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Harris, 510 U.S. at 25 (Scalia, J., concurring). Accordingly, the district court's characterization of Mire's testimony that she completed all her work as "key" to the court's finding that she cannot establish a hostile work environment is contrary to established law. Mire's testimony that the steady barrage of sexual comments and propositions, sometimes made in front of customers, caused her distress and made her uncomfortable enough that she avoided going downstairs would support a finding that the environment to which she was subjected made it more difficult for her to do her job. Although the district court stated that it was considering the incidents of harassment "collectively" as well as individually (R.E. 41), the court in fact assessed and dismissed each of the alleged incidents in a vacuum. The court examined each allegation separately and dismissed it as insufficiently offensive, insufficiently severe, insufficiently pervasive, or a combination of the three. For example, the court dismissed the incident where Fidel held Mire in a dance pose as "harmless workplace flirtation," without considering that it occurred in a workplace where Mire was constantly subjected to sexual comments. R.E. 43-44. Similarly, the court concluded that Rhodes' comment to Mire about whether she was upset her "lover boy" was gone "was not severe harassment" because Rhodes did not proposition her or make a sexual comment without tying the comment to the steady stream of remarks Mire endured regarding her supposed affair. R.E. 42- 43. The district court erred by examining each allegation of harassment in isolation instead of considering the totality of the circumstances. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) ("[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario"); Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) ("This totality of the circumstances examination should be viewed as the most basic tenet of the hostile-work-environment cause of action. Hence, courts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility."). Other comments in the district court's decision indicate that the court was applying an unduly stringent standard in assessing whether there was sufficient evidence to support Mire's hostile work environment claim. First, the court erred in suggesting that harassment occurring for "only a couple of months" "does not support a 'severe' or 'pervasive' abusive environment." R.E. 41. The district court's observation that Mire worked at TPS for five years but was only harassed for a few months at the end of her employment implies that such a calculus is relevant to whether Mire was subjected to an actionable hostile work environment. A company is liable for subjecting an employee to a hostile work environment where the conduct is severe or pervasive enough to alter her terms and conditions of employment, regardless of how long the employee worked there prior to the onset of the harassing conduct. Finally, the court's suggestion that the fact that none of the TPS employees had sex with Mire, physically threatened her, or "charged that she was incompetent to perform her job because of her sex" (R.E. 46) undermines her claim of a hostile work environment indicates that the court was applying the wrong standard in assessing Mire's claim. See Harris, 510 U.S. at 22 (the "appalling conduct" alleged in prior cases "merely present[s] some especially egregious examples of harassment" and should not be taken to "mark the boundary of what is actionable"); Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.), cert denied, 522 U.S. 997 (1997) ("that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases"). II. THE DISTRICT COURT ERRED IN CONCLUDING THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT MIRE'S SUPERVISOR'S DECISION TO FIRE HER TWO DAYS AFTER SHE COMPLAINED TO HIM OF SEXUAL HARASSMENT WAS RETALIATORY. Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because she has "opposed a practice made unlawful by [Title VII]." 42 U.S.C. § 2000e-3(a). It is undisputed that Mire was fired just two days after she opposed an unlawful practice by complaining about sexual harassment to Flowers. This Court has held that, under this provision, "[c]lose timing between an employee's protected activity and an adverse action against him may provide the 'causal connection' required to make out a prima facie case of retaliation." Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). Accordingly, the two days between Mire's protected activity and her termination would support a finding that the two were causally related. The company asserted that Mire's termination was based on performance problems, rather than her recent complaint of harassment. Once an employer offers evidence of a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, a plaintiff must offer sufficient evidence to support an inference that retaliation was the real motive. McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007). The plaintiff must ultimately prove that the company's stated reason for terminating her was merely a pretext for the real, retaliatory purpose. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2007); Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005). There is sufficient evidence to support a finding that TPS's assertion that it fired Mire for poor performance was a pretext for retaliation. The district court asserted that Mire offered no evidence of a causal connection between her protected opposition and her discharge save close proximity in time, and "her subjective belief that [her complaint of harassment and termination] were causally related." R.E. 47. But the court ignored the evidence that the company's stated justification for firing Mire was false. A jury could disbelieve TPS's explanation based on the evidence that: Mire had not been reprimanded or counseled about performance problems, there was nothing documenting any performance problems in her personnel file, and she received a raise and bonus, both based in part on satisfactory performance, during the year immediately prior to her termination. If the jury credits this testimony, it could reasonably find it implausible that an employee whose performance was never criticized over her five years of employment was suddenly fired for poor performance immediately after complaining about sexual harassment. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992) (upholding the district court's retaliation judgment and finding it surprising that suddenly, after the plaintiff complained to the EEOC, problems with her work surfaced). This evidence, taken together, would support a finding that the company's justification for Mire's termination was a pretext for unlawful retaliation and that, but for her complaint to Flowers, she would not have been fired. Accordingly, the district court erred in dismissing Mire's retaliation claim. CONCLUSION For the foregoing reasons, we urge this Court to reverse the district court's grant of summary judgment and remand the case for trial. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel _____________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(b) because this brief contains 5,054 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). ____________________________ Julie L. Gantz Attorney U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I hereby certify that on the 10th day of January 2008, I sent two paper copies and one PDF version on diskette of the attached amicus brief via Federal Express Next Day Air Delivery to the following counsel of record: Stephen J. Schecter STEPHEN J. SCHECTER, P.C. 1105 Second Street Seabrook, TX 77586 Michael J. Hengst HENGST & HENDERSON, P.C. 9800 Centre Parkway, Suite 150 Houston, TX 77035 _________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 *********************************************************************** <> <1> In requiring Mire to establish that the conduct was severe and pervasive, rather than severe or pervasive, (R.E. 9, 40, 41, 44), the district court "imposed a more stringent burden on the plaintiff than required by law." Harvill, 433 F.3d at 435; see also Lauderdale v. Tex. Dep't of Criminal Justice, No. 06-41636, 2007 WL 4465204, at *3 (5th Cir. Dec. 21, 2007) ("Frequent incidents of harassment, though not severe, can reach the level of 'pervasive,' thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists.").