EEOC v. NEA Alaska, Nos. 04-35029 & 04-35201 (9th Cir.) Brief as appellant Sept. 30, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________ Nos. 04-35029 & 04-35201 _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. NATIONAL EDUCATION ASSOCIATION-ALASKA, et al., Defendants-Appellees, v. CAROL CHRISTOPHER, et al., Plaintiffs-Intervenors-Appellants. ____________________________________________________ On Appeal from the United States District Court for the District of Alaska ____________________________________________________ Opening Brief of Equal Employment Opportunity Commission as Appellant ____________________________________________________ ERIC S. DREIBAND JENNIFER S. GOLDSTEIN General Counsel Attorney VINCENT J. BLACKWOOD EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4733 TABLE OF CONTENTS TABLE OF AUTHORITIES...........................ii STATEMENT OF JURISDICTION .....................1 STATEMENT OF THE ISSUE ........................1 STATEMENT OF THE CASE .........................2 STATEMENT OF FACTS ............................3 District Court Decision ..................18 SUMMARY OF ARGUMENT ...........................20 ARGUMENT Evidence That the Abusive Behavior Tom Harvey Directed at Female Employees Was More Frequent, Severe, and Physically Threatening Than His Behavior Towards Male Employees Is Evidence of Gender-based Harassment...... 21 CONCLUSION ....................................35 CERTIFICATE OF COMPLIANCE .....................36 STATEMENT OF RELATED CASES ....................36 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abramson v. William Patterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001) ...... 23, 24 Andrews v. City of Philadelphia, 895 F.3d 1469 (3d Cir. 1990) ................. 26, 30 Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995) ...................... 22 Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001) ............................... 25 Drapner v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998) ................34 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) ................................ 23, 24, 31, 32, 33 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ............................. 22 Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) ..................... 26 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ................. 24 Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264 (8th Cir. 1993) .............. 25, 27 Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) ................. 26 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) ............................ 25 McKinney v. Dole,765 F.2d 1129 (D.C. Cir. 1985) ................................26 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) ............................ 20 Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) ................. 26, 34 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) ............... 20, 22, 23, 27, 30, 34 Pavon v. Swift Transp. Co., 192 F.3d 902 (9th Cir. 1999) ...................... 27 Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996) .......................... 26, 31 Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001) ................................26 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) ................. 26 Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994) ............................................. 24, 31 Steiner v. Showboat Operating Company, 25 F.3d 1459 (9th Cir. 1994) ............................................. 25, 27, 31, 32 Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) ........................ 32 Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996) .................. 31 Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) ..............................32 STATUTES 28 U.S.C. 1291 .................................................................1 28 U.S.C. 1331 ........................................1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ........................ 2 42 U.S.C. 2000e-2(a)(1) ............................................................ 30 42 U.S.C. 2000e-6(b) ................................................................1 RULES and GUIDANCE Fed. R. Civ. P. 59(e) .......................................................................1 Fed. R. App. P. 4(a)(1)(B) ............................................................1 EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. 1604.11(a) ....... 30 EEOC Policy Guidance, "Current Issues of Sexual Harassment," No. N-915-050, (March 19, 1990) (found at http://www.eeoc.gov/policy/docs/currentissues.html) .................... 30 MISCELLANEOUS 3 Lex K. Larson, Employment Discrimination 46.01[3] (2d ed.2000) ................ 26 STATEMENT OF JURISDICTION The district court had jurisdiction in this matter arising under federal law pursuant to 28 U.S.C. 1331 and the jurisdictional provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e-6(b). The district court initially entered judgment on December 16, 2003. ER613-14. On December 30, 2003, defendant National Education Association filed a motion, timely under Fed. R. Civ. P. 59(e), for clarification of the judgment. R.149. The district court issued an amended judgment on January 6, 2004. ER615-16. The Equal Employment Opportunity Commission filed its timely notice of appeal on March 5, 2004, in accordance with Fed. R. App. P. 4(a)(1)(B). CER11. This Court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. 1291. STATEMENT OF THE ISSUE Whether evidence that the abusive behavior Tom Harvey directed at female employees was more frequent, severe, and physically threatening than his behavior towards male employees is sufficient to support a finding that Harvey created a hostile work environment based on sex. STATEMENT OF THE CASE The Equal Employment Opportunity Commission ("EEOC" or "Commission") filed suit against the National Education Association-Alaska ("NEA-Alaska") on July 27, 2001. CER1. The complaint alleged that NEA-Alaska violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., by subjecting three female employees to harassment based on their gender and by constructively discharging one of those employees. CER1-2. On March 1, 2002, the district court granted the motion of the three employees Carol Christopher, Julie Bhend, and Carmela Chamara to intervene in the case. R.13. The court subsequently granted the plaintiffs' joint motion to join the National Education Association ("NEA") as a defendant. R.61. On December 16, 2003, the district court granted defendants' motions for summary judgment, holding that the plaintiffs had failed to show that the harassment of the female employees was based on their gender. ER607. Both the Commission and the plaintiffs-intervenors appealed. CER11, ER617. STATEMENT OF FACTS Plaintiffs-intervenors Carol Christopher, Julie Bhend, and Carmela Chamara are employees or former employees of NEA-Alaska, a union that represents teachers and other public school employees in Alaska. ER31. All three women worked in NEA- Alaska's Anchorage office, as did Tom Harvey, who, during the time relevant to this action, was first the Interim Assistant Executive Director and then the Assistant Executive Director of the organization. ER77, 80. Christopher was one of a group of professional employees, known as UniServ directors, who train members and help local affiliates organize. ER32-33. Bhend and Chamara made up part of the office's support staff, known as "Associate staff." ER32-33. Harvey was one of three management officials employed by NEA-Alaska, and the only one working in the Anchorage office. ER148. The other two Executive Director Vernon Marshall and Business Manager Kaye Sullivan both worked in NEA-Alaska's Juneau office. ER144, 147-48. Christopher began work at NEA-Alaska in 1995, Bhend in 1993, and Chamara in 1997. ER32-33. Harvey began his tenure as Interim Assistant Executive Director in March 1998, ER77, and shortly thereafter began a pattern of abusive behavior that became more severe after he was awarded the position permanently on September 1, 1999. ER221. Much of this behavior started with yelling. Christopher, for example, described an incident that occurred shortly after she had bargained a new agreement with the Anchorage Education Association. While sitting in a room with Harvey, he suddenly "stood up and screamed at me . . . that I fucked up the language, that I was fucking up everything in the program. . . . I mean, he just went ballistic." ER173. Harvey used similar language and tone with Christopher on other occasions. On the day Christopher returned to work after visiting a sister who was terminally ill, she asked Harvey whether she needed to bring anything to a meeting. ER182. Harvey responded: "if you would have read your fucking e-mail, you would have known, but, no, you were out of town, so we've lost a day here." ER182. Christopher was quite upset: "He knows my sister's dying. He knows how heavy my heart is, and he can say that? It was - - so . . . astonishing and so cruel at the same time, I just . . . started crying and I left the room." ER183. The yelling Christopher experienced was frequent. As she stated, "it happened so often to me, it was like a daily thing. . . something would happen every day, and everybody just kind of expected it, and it was usually so loud or in public. . . ." ER178. He would "just [be]on you, screaming and yelling and telling you . . . what you did. . . . Which happened a lot." ER191. And Harvey's yelling was loud; wherever Harvey yelled at Christopher, "it could be heard either to the hallway or clear across the hallway to the other side. . . . [W]henever I came out [of Harvey's office], there [were] people standing around . . . [asking] what's going on here? Or our receptionist would say, are you okay? Because they could hear it." ER199. According to Christopher, Harvey's yelling was meant to intimidate. As she described it, Harvey would "scream all out at you to get you to . . . cower down." ER191. Harvey often did more than just yell. For example, after a meeting to discuss picketing in support of the local union, a local union member e-mailed Christopher about the picketing plans. Shortly thereafter, Harvey "called me into his office and starts screaming at me about what the hell was going on" with the e-mail. ER189. Harvey "just went on and on, and he's screaming and yelling, and then he comes and he gets right in my face with both of his fists, and he's shaking them. . . , and he's stiff. He's just stiff and he's just shaking them right in my face." ER189. Christopher stated she anticipated Harvey would strike her: "I'm bracing myself, because I thought I was going to be hit. I was just ready to get hit." ER189. At that point, Rich Kronberg, the president of NEA-Alaska, walked into Harvey's office as Harvey was shaking a fist in Christopher's face. Kronberg intervened, telling Harvey "hold on here." ER316. Christopher then left Harvey's office, "horrified," "distraught,"and "crying." ER189- 90. Harvey engaged in other behavior Christopher found intimidating. She described what she considered "the worst" behavior: "I'd be working away, I'll be typing, and I'll start to feel funny like there's something wrong here. And I'd look around, and it would be [Harvey] standing there over me, watching me. . . . It would scare me to death. . . ." ER206. According to Christopher, Harvey would come upon her silently, and "just be standing there watching" her at regular intervals. ER207. But in general, it was the yelling that she experienced "all the time" "the stand up and pointing their finger and yelling in your face, intimidating the hell out of you . . . ." ER212-13. Harvey subjected Julie Bhend and Carmela Chamara to similar behavior. As an example, Bhend described an incident in which Harvey called her into his office because he "was angry" after she had informed him that she would not be able to complete a mailing in the time frame he desired. Harvey's response was to "yell[]" at her. ER262. As Bhend put it: "He was yelling. He was saying are you saying you're not going to do this? . . . He just kept saying . . . are you saying you're not going to do it?" Finally Bhend left his office and "cried." ER263-64. The record evidence indicates that, as Harvey did with Christopher, he yelled at Bhend frequently, and in an aggressive manner. For example, after Harvey publicly announced that Bhend would be support person for another employee, Bhend requested that, in the future, Harvey discuss such assignments with her first. Harvey's response, "in a loud and threatening voice was, 'Are you saying I cannot assign you work?'" ER302. On another occasion, around the time of Carol Christopher's departure, Bhend was having a conversation with Kronberg about assignment responsibilities. Harvey walked into the office and "he just went off," yelling "Carol has no responsibilities. Carol is out of here. She's doing nothing . . . on and on and on." ER284. One of the incidents Bhend found most upsetting was her annual evaluation conference, conducted by Harvey in his office in November 1999. After sitting down at a table, Harvey began the conference by "yelling. He started hurling accusations at me." ER266. When Bhend tried to interject, Harvey "yelled I don't want to hear it. I don't want to hear a word. Don't you say a word." ER267. Harvey kept yelling, while "shaking a fist and slamming a table." ER297. Harvey was shaking his fist about two feet from Bhend's face. ER298. Then, during the meeting, Harvey "lunged" across the table at her, moving "[f]ast, like an angry . . . . It occurred to me that he might strike me." ER282. Bhend stated that she had walked into Harvey's office expecting to have an evaluation meeting and instead: "I walked in and I just got attacked . . . I was scared." ER268. Bhend stated that she felt that "body language wise, [Harvey] was threatening in that [conference]." ER282. She stated that she was "scared that he was going to hurt me or do something and I was in . . . a state of panic." ER297. Bhend added that she "felt physically threatened most of the time after that." ER284-85. Bhend testified that Harvey did not strike her, but he did make physical contact with her on one occasion: Bhend had been comforting a local union president about an incident when Harvey came up behind her, grabbed her shoulders, and yelled "get back to your office." ER283. Bhend stated that Harvey did not hurt her, but that she "found it frightening." ER285. On at least one other occasion, Bhend stated, Harvey would "lean[] over my desk towards me, that sort of intimidating movement." ER298. Even when Harvey's behavior was directed at others, Bhend felt intimidated by him: "any time he was . . . slapping his hand on the table or hitting the table with his fist . . . I found that extremely intimidating." ER286. Bhend added that she felt Harvey's menacing behavior towards her was by design: "Mr. Harvey was very clearly trying to intimidate me." ER303. Carmela Chamara likewise found Harvey's behavior towards her intimidating. As with Christopher and Bhend, much of this behavior involved "yelling" in a "tone of voice [that] offended [her]." ER119. For example, Chamara described a day during which there was a training of staff. Chamara had been told she should cover the reception area, but then was told to go to the training. ER122. When she tried to clarify the conflicting instructions, Harvey started yelling at her "get to the meeting. Get to the meeting." ER122. Chamara described Harvey "yelling . . . pumping his fist in my direction to make a point, as is his custom. Stepping toward me to make the - - make the point." ER125. According to Chamara, Harvey's conduct made her "step[] back" and she told Harvey "that he was being physically threatening." ER125. In response, Harvey put his hands "behind his back like a schoolboy to say, okay, I'm going to be good now." ER125. Chamara went into the training, but a short time later asked the trainer to excuse her because she did not want her colleagues to see her crying. ER582. Chamara stated that the training incident was not the only time she experienced behavior she found threatening. She stated that Harvey has been "physically threatening in meetings . . . when he . . . pounds his finger on the desk to make the point. You just never know . . . if he's going to explode, if he's going to come at you." ER583. She discussed an incident when, instead of yelling, Harvey came up behind her to tell her to get into a meeting and then stood "over me watching me gather my items which was very intimidating." ER121. In general, though, what disturbed Chamara the most was "[t]he way he stomps literally stomps up and down the hallway. . . . the anger in his face. The red skin and the - - the pointing the fingers and just being angry. You just never know if he's going to come to work one day and go off." ER157. The work situation was, as Chamara put it, "like working with a ticking time bomb because you're sitting by and you're waiting for your turn to be next. You just know it's going to happen when you hear the sound of his feet walking towards your area. It . . . raise[s] the hairs on your neck because you just don't know what you're going to get." ER584. There was evidence in the record that Christopher, Bhend, and Chamara were not the only individuals subjected to Harvey's tirades, and that Harvey yelled at both men and women. Indeed, Harvey himself would say, "'I'm an equal opportunity hollerer.'" ER572. But Harvey did not, in fact, treat male and female employees similarly, and Harvey's conduct affected women very differently and more severely than it affected men. Harvey was not as abusive to men as he was to women. For example, Mark Jones, who is a UniServ Director, testified that he could remember Harvey raising his voice with him only on "a couple of occasions when he first came on staff." ER324. Jones stated that "the period of raising his voice was very short," and that they generally "have been able to talk through issues, resolve differences in a conversational tone." ER324. Jones stated that he had not experienced much anger from Harvey. ER324. Carol Christopher testified that she saw Harvey speak loudly and use foul language to male employees, telling them "You fucked this up, you fucked that up." ER209. The difference, according to Christopher, was that it was more like "bantering" and "being with the boys." ER209. "[A]t the end of the day," she stated, "I would go in and [Harvey] and Bob and Rich and Jeff are all laughing in [Harvey]'s office, talking, talking, talking, laughing, laughing." ER209. As Christopher put it, Harvey would yell at Jeff Cloutier (another UniServ director), for example, but it was a "then, let's go have a beer kind of thing." ER211. What Christopher herself experienced was different. As she put it, "all I know is he yelled at me . . . all the time, and it was in a different way. . . [it was ] the stand up and pointing their finger and yelling in your face, intimidating the hell out of you." ER212-13. Bhend likewise saw Harvey treat men differently than women. She characterized Harvey's relationship with male employees as a "'we're all guys here,'" while female employees were subjected to "extremely hostile behaviors." ER303. The evidence indicates that, in addition to the three plaintiffs in this case, every woman in the Anchorage office was subjected to abusive behavior from Harvey. The all-female support staff, or Associate Staff, was a frequent target for Harvey, who "continually . . . berated them," according to Christopher. ER226. On occasion, Harvey would call the Associate Staff into a meeting where, red-faced, he would yell at the entire support staff. ER177. Eventually many of the Associate Staff sought to avoid all contact with Harvey. ER 141-42, 205, 295. There was no evidence that any male employee sought to avoid contact with Harvey. By contrast, female employees went to lengths to avoid contact. Bhend, for example, described working overtime yet not requesting pay for her overtime hours because "I was too scared of Mr. Harvey to turn them in to him." ER295. Bhend also sought to separate herself physically from Harvey, to no avail. As Jeff Cloutier described it, Bhend "would respond [to Harvey's yelling and gesturing] by trying to retreat from [Harvey]. And [Harvey] would just follow, . . . infringing on . . . her personal space." ER569. Chamara likewise explained that it was her "practice to stay out of Tom Harvey's space as much as possible because of his behavior of yelling . . . and pointing . . . in your face when he talks to you. . . . [C]ommunication with Mr. Harvey . . . [is] too intimidating and it's always a potential for an argument or being belittled." ER141-42. Even on trivial matters, female employees avoided Harvey. One of the Associate Staff, Clare, told Christopher that Harvey wouldn't be getting a calendar because she did not want to put herself "in that position of going into his office" to get his calendar order. ER205. The evidence also indicates that male employees were not as intimidated or afraid of Harvey as female employees, nor did they find his behavior as upsetting as female employees did, even when they were the subject of Harvey's ire. For example, James Alter, a UniServ Director, testified that Harvey "raise[d] his voice" and "got upset" with him on one occasion over a phone message Alter had left on voice mail. ER333. Alter stated that he explained his position to Harvey but that Harvey "sort of continued to rant and rave." ER335. Harvey did not get "in [Alter's] face" during this incident, however, as he did towards female employees, ER141, 212; Harvey remained seated on the opposite side of a desk from Alter. ER336. When asked whether he was upset about the incident, Alter responded that he "obviously didn't like it" and "thought it was totally inappropriate," but Alter did not otherwise indicate he was upset by Harvey's conduct. ER336. Alter, like most of the other male employees of the Anchorage office, had a job that required extensive travel. Alter estimated that he was in the Anchorage office only once every month to month-and-a-half. ER332-33. As Jeff Cloutier described it, the "men in that office [Anchorage] left lots of times to go to school buildings, to go to another assignment, to go to another school, to fly out of state." ER573. Cloutier added that "[i]t was only the women [who] stayed there, and it was the women who felt most vulnerable to . . . his berating and loud voice." ER573. Cloutier explained further that "the general fear of the women at our office" was that Harvey would "us[e] a loud voice, put[] them down, us[e] vulgarity at them. Generally it was about getting in their space and Harvey being angry and hollering at them." ER573. The "fear of the women at our office" was so great, Cloutier stated, that the union representing NEA-Alaska employees purchased and distributed a whistle to each union member. ER573. The union instructed its members that if anyone heard Harvey screaming or berating someone, they were to blow the whistle. ER573. At that point, every other union member "was to come there and witness and let Harvey know that we were there in solidarity and that he should stop that behavior." ER573. The $2.95 plastic whistles were "the only tangible way that the union could find to offer protection to people in that office," Cloutier said. ER573. Cloutier's specific observations about women in the office was consistent with his overall assessment that women in the office generally were the most vulnerable to Harvey's abusive behavior. For example, he saw Carol Christopher "in tears" several times after meetings with Harvey and several other times have to remove herself from the room to cry in private. ER570. He saw Julie Bhend after encounters with Harvey with "that defeated look, the hunched over shoulders, head down, bowed, soft voice. Can't take it, got to go home." ER570. Cloutier noticed on three or four occasions that Chamara was "very upset by some interaction she had had with [Harvey]." ER570. As to the male employees, Cloutier stated that he did not remember any male employees crying after interactions with Harvey, nor did he remember "any . . . man [other than himself] being upset after an interaction with Harvey." ER571. Cloutier was the one man who described himself as "upset" after an encounter with Harvey, though a woman who witnessed the incident appeared equally, if not more, affected by the incident. The particular encounter occurred when a local president, Sheila Dickman, was working with Cloutier in the Anchorage office. Cloutier suggested Dickman introduce herself to Harvey. ER568. While Dickman was in Harvey's office, Harvey called Cloutier in to accuse him of failing to follow certain procedures. ER568. When Cloutier suggested Dickman not be involved in the discussion, Harvey "instantly. . . was three inches from my nose chin, he's a fairly short guy. . . ." ER568-69. Harvey was "very loud, spitting, accusing me of being insubordinate. He was going to fire me." ER569. Cloutier described himself as feeling "shaky" and having "trembling" legs when Harvey got in his space. ER569. After some time in Harvey's office, Dickman got up to leave but Harvey followed her and ordered Cloutier to follow and to apologize to Dickman for whatever problems Cloutier had caused her. ER569. In the end, Dickman "fled the building" "in tears" and Cloutier left Harvey to "calm her down." ER569. As a result of the incident, Dickman has said she will never talk to Harvey again and has "absolutely refused" to meet with him. ER569. Aside from that incident, Cloutier did not indicate he was upset after interacting with Harvey. In fact, for a long period of time, Harvey and Cloutier got along well: "Jeff was the golden boy," as Bhend put it. ER295. In Christopher's estimation, Cloutier received "special treatment" from Harvey. ER185. Harvey did, eventually, begin to yell at Cloutier, but the acrimony appeared to come from both sides. As Virginia McKinney, the Communications Director, put it, "Jeff [Cloutier] was giving as good as he got." ER329. In any event, Cloutier himself described "the women at our office," and not the men, as the ones who felt "vulnerable" to Harvey. ER573. Female employees did complain to Harvey about his treatment of them. Chamara, for example, told Harvey early on that his yelling and tone of voice offended her. ER119. Harvey continued with his behavior, however, and Chamara did not complain to Harvey again Chamara "knew better," as she put it. ER120. Christopher was even more specific in her complaints to Harvey. She complained to him that the Anchorage office was turning into "such a hostile working environment." ER204. When Harvey asked what she meant, Christopher explained: "we're just trying to talk about something, and you're screaming and yelling and fuck me and fuck this and fuck that, and - - and this is just so hostile." ER204. Harvey's reply to her complaint was "threatening," according to Christopher; he told her not to "think you can do anything about it . . . a woman in Mississippi tried to do something about it, and . . . it didn't even get to first base, so if you think you can do something about a hostile work environment, it isn't going to go anywhere." ER204. Christopher stated that she chose not to file a written grievance about Harvey's conduct "because I was too scared." ER218. As she explained: "When somebody is like that to you every day when you're doing your job, and you're being a good girl, why do you think I'd want to start any action that he might just come and kill me . . . I - - we were afraid." ER217. Chamara stated that she too was afraid of retaliation from Harvey. Chamara stated that she spoke to Willie Anderson, a union representative, about filing a grievance, but he advised against it "because Tom Harvey would retaliate and it would just be harder on me. . . . We already know he's going to retaliate, he said he's going to retaliate. . . ." ER154. Harvey, in fact, had told Chamara that if she put some documentation about a particular conversation in her file, "he would chase it with . . . paperwork with some negative and derogatory information on it." ER154. Harvey was the top management official in the Anchorage office. The Executive Director, Vernon Marshall was located in Juneau, though he came to the Anchorage office periodically. Christopher indicated that she told Marshall about Harvey's conduct on "several occasions" but he "chose not to take any effective action to curb Mr. Harvey's offensive conduct." ER317. Bhend stated that she did not complain to Marshall because, based on her experience, "it wouldn't matter . . . because . . . Marshall would sit on it or ignore it." ER291. During the time at issue in this case, NEA-Alaska had no policy prohibiting sex-based harassment or sex discrimination against individual employees. ER80. Christopher resigned from NEA-Alaska in February 2000. ER316. She stated that she felt compelled to quit the organization because of Harvey's conduct towards her. ER316-17. Christopher, Bhend, and Chamara all filed EEOC charges in April 2000. ER57, 252, 310. Chamara quit in August 2000, stating in her resignation letter that she needed relief from "the hostile working environment at NEA-Alaska." ER256. Bhend still works at NEA-Alaska. ER43. Harvey is now the Executive Director of NEA-Alaska. ER229. In July 2001, the Commission filed suit against NEA-Alaska alleging it created a hostile work environment for all three women and constructively discharged Christopher. CER1-2. Subsequently, the three charging parties intervened in the case and the plaintiffs then joined NEA as a defendant. R.13, R.61. NEA-Alaska moved for summary judgment, arguing that Harvey's conduct was not directed at the charging parties because of their sex, and that his conduct was not severe or pervasive enough to create a hostile work environment. ER29-73. NEA separately moved for summary judgment on the grounds that it was not a proper party in the case. R.87. District Court Decision The district court granted defendants' motions for summary judgment on the Title VII claims. In so ruling, the district court acknowledged that the plaintiffs "presented substantial evidence that Harvey is rude, overbearing, obnoxious, loud, vulgar, and generally unpleasant." ER610. The court acknowledged that "Harvey appears to have been a bully and women may suffer more under a bully." ER610. That women may suffer more under Harvey is insufficient to establish a Title VII violation, the court stated, "without some evidence that would support an inference that Harvey was hostile to women as women." ER610. The court concluded that the plaintiffs had failed to establish a hostile work environment because they had not produced evidence either that Harvey's abusive behavior was "motivated by lust" or that his behavior reflected "sexual animus toward women as women." ER610. It therefore awarded summary judgment to the defendants. The district court did not address any of the issues raised in NEA's separate motion for summary judgment. SUMMARY OF ARGUMENT The Supreme Court explained in Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), that employees have the "right to work in an environment free from discriminatory intimidation, ridicule, and insult." That Harvey repeatedly subjected female subordinates at NEA-Alaska's Anchorage office to "intimidation, ridicule, and insult" is not seriously disputed in this case. What is disputed is the discriminatory nature of his conduct. That dispute should not have been resolved on summary judgment, however, because there is substantial evidence that Harvey, a self- proclaimed "equal opportunity hollerer," in fact treated women far worse than he treated men. Comparative evidence about how a harasser treats women and men is a well- established means of showing discriminatory harassment, as the Supreme Court observed in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). No additional evidence of gender animus is necessary, for what is critical is whether the harasser has exposed women to comparatively disadvantageous employment conditions, not what was in his mind when he did so. Nor does the fact that Harvey "holler[ed]" at men automatically exempt NEA-Alaska from responsibility for Harvey's conduct. If Harvey yelled at women with more venom, with more physical intimidation, and with more frequency as the evidence in this case shows then he has engaged in unlawful discrimination. Summary judgment therefore was inappropriate. ARGUMENT EVIDENCE THAT THE ABUSIVE BEHAVIOR TOM HARVEY DIRECTED AT FEMALE EMPLOYEES WAS MORE FREQUENT, SEVERE, AND PHYSICALLY THREATENING THAN HIS BEHAVIOR TOWARDS MALE EMPLOYEES IS EVIDENCE OF GENDER-BASED HARASSMENT. There was considerable evidence in this case that Tom Harvey was hostile and abusive towards female employees at NEA-Alaska. There was considerable evidence that Tom Harvey treated these female employees worse than he treated male employees by directing substantially more hostile and abusive conduct towards the women than the men. There was considerable evidence that Harvey's conduct had a profoundly negative effect on the female employees: unlike the male employees, the women at NEA-Alaska described feeling intimidated, physically threatened, and upset "most of the time." Despite this evidence, the district court held that there was insufficient evidence that "Harvey's conduct constituted discrimination because of sex." ER610. Specifically, according to the district court, there was insufficient evidence that Harvey was motivated either by "lust" or by "sexual animus towards women as women." ER610. The district court's decision to focus on evidence of motive while disregarding the evidence of actual differential treatment is at odds with the precedent of both the Supreme Court and this Court, and so constitutes reversible error. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), a sexual harassment case, the Supreme Court stressed that what is at issue in any gender discrimination case "'is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). To that end, a plaintiff may offer "comparative evidence about how the alleged harasser treated members of both sexes . . . [to] prove that the conduct at issue . . . constituted 'discrimina[tion] . . . because of . . . sex.'" Oncale, 523 U.S. at 80-81. The Commission offered just such comparative evidence; it offered evidence that Harvey treated female employees worse than he treated male employees. That evidence indicates that Harvey was abusive to every woman in the Anchorage office, that his behavior towards the women was frequent, that it was intimidating, and that it encompassed physically threatening behavior. What male employees experienced was different both in its frequency and severity. Mark Jones, for example, remembers Harvey raising his voice at him only on "a couple of occasions" and only for a "very short" period of time. ER324. James Alter remembered one yelling incident with Harvey, but unlike times when Harvey yelled at Christopher, Bhend, and Chamara, when Harvey yelled at Alter he remained seated and did not get "in [Alter's] face." By contrast, when Harvey yelled at Christopher it was, as she put it, more severe behavior: "the stand up and pointing their finger and yelling in your face, intimidating the hell out of you" type of behavior. ER212-13. On several occasions, Harvey seemed so out of control that the plaintiffs thought he was going to hit them. ER189, 282, 583. But when Harvey yelled at the men it was, according to Christopher, a moment of yelling followed by a "let's go have a beer kind of thing." ER211. The district court made no mention of this differential treatment. The court's omission is a profound mistake, for comparative evidence of more abusive treatment of women plainly can establish a Title VII violation, regardless of whether there is additional evidence of the harasser's motives. See Oncale, 523 U.S. at 80-81 (comparative evidence may establish harassment because of sex). Moreover, as this Court has emphasized, conduct may constitute "unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment." Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991); see also Abramson v. William Patterson Coll. of N.J., 260 F.3d 265, 278 (3d Cir. 2001) ("we have never required a plaintiff to demonstrate direct proof that her harasser's intent was to create a discriminatory environment"); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994) ("key issue" in hostile work environment case is not motive, but whether women are exposed to comparatively disadvantageous employment conditions); see generally Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (discriminatory motive can be inferred frm "the mere fact of differences in treatment"); Abramson, 260 F.3d at 277-78 (criticizing district court for requiring that conduct be "linked" to "discriminatory animus" and holding, in hostile work environment case, that intent to discriminate can be inferred from comparative evidence). The district court did discuss the evidence that Harvey was abusive to his subordinates, but the court did not find it indicative of sex discrimination because "Harvey yelled at men as well as women." ER611. The court's finding is unsound, for a supervisor who treats all his subordinates poorly nonetheless may be discriminating where, as here, he treats his female subordinates worse in this case by subjecting the women to more severe, more frequent, more physically threatening abuse. This Court held as much in Steiner v. Showboat Operating Company, 25 F.3d 1459 (9th Cir. 1994), a case in which the employer attempted to argue that because the harasser abused both men and women, the harassment was not based on gender. This Court rejected that argument, emphasizing that although the harasser "was indeed abusive to men, . . . his abuse of women was different." Id. at 1463. The other courts of appeals have reached the same conclusion as this Court did in Steiner. See, e.g., Brown v. Henderson, 257 F.3d 246, 254 (2d Cir. 2001) ("the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved. For it may be the case that a . . . supervisor treats both men and women badly, but women worse."); McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996) ("It would be exceedingly perverse if a male worker could buy . . . immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female."); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269-70 (8th Cir. 1993) (where harasser was more severely and more frequently abusive to women than to men, "a fact-finder could conclude that [the harasser's] treatment of women is worse than his treatment of men. Thus . . . [the plaintiff] has provided sufficient evidence to succeed on her claim that [the harasser's] conduct was gender-based."). As in Steiner and Kopp, for example, Harvey's abuse of women was different from his abuse of men. The fact that Harvey was abusive to men thus cannot insulate the defendants from a discrimination claim. The district court sought to distinguish Steiner by pointing to the fact that, unlike this case, Steiner involved conduct "directed at female employees that was explicitly sexual in nature." ER611. However, it is well-settled that conduct need not be sexual in nature to form the basis of a hostile work environment claim. Harassment "'can include employer action based on [sex] but having nothing to do with sexuality. . . . [such as] severe, sustained hostile treatment.'" Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) (quoting 3 Lex K. Larson, Employment Discrimination 46.01[3] (2d ed.2000)); see also Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) ("a woman's work environment can be hostile even if she is not subjected to sexual advances or propositions"); Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996) ("harassment need not be explicitly sexual in nature . . . nor have explicit sexual overtones"); Andrews v. City of Philadelphia, 895 F.3d 1469, 1485 (3d Cir. 1990) (same); Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988) (same); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (evidence of verbal abuse including calling plaintiff "Buffalo Butt" properly considered); McKinney v. Dole,765 F.2d 1129, 1138-39 (D.C. Cir. 1985) (same). Indeed, this Court's recitation of what a plaintiff must show to establish a hostile work environment does not require allegations of sexual conduct. See, e.g., Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872 n.4 (9th Cir. 2001) (plaintiff must show, inter alia, that she was "subjected to . . . verbal or physical conduct of a [harassing] nature") (citing Pavon v. Swift Transp. Co., 192 F.3d 902, 908 (9th Cir. 1999)). Thus the Steiner Court's discussion of the sexual nature of the verbal abuse the harasser directed at women does not imply that sexual conduct is required to prove a hostile environment claim. Rather, the Court indicated it was significant in that case that sexual conduct was directed at women, but not men, because it revealed that while the harasser was "abusive to men, . . . his abuse of women was different." Steiner, 25 F.3d at 1463 (emphasis added). The critical factor is not that the conduct has sexual content, then, but that the conduct comprises evidence from which an inference of discrimination can be drawn. As the Supreme Court explained in Oncale, "[m]ale-female sexual harassment situations . . . involv[ing] . . . proposals of sexual activity" are simply one type of case where it is "easy to draw . . . an inference of discrimination on the basis of sex." Oncale, 523 U.S. at 80. Another type of case where it is equally easy to draw an inference of discrimination on the basis of sex is this case where the harasser is more abusive to women than to men. See, e.g., Kopp, 13 F.3d at 269-70 (evidence of gender-based harassment where harasser was more severely and more frequently abusive to women than to men). Comparative evidence of the kind the Commission produced here is, therefore, sufficient to show that Harvey discriminated on the basis of sex. There is additional evidence in the record that Harvey treated women differently and created a hostile work environment on the basis of sex. In particular, there is considerable evidence that the actual working environment experienced by the female employees was hostile in a way that it was not for men. There is evidence that women employed at NEA-Alaska, and especially the three plaintiffs, felt considerably more intimidated and upset by Harvey's abuse than the men. For example, Christopher testified that Harvey's tirades frequently left her "crying" and "distraught." ER189- 90. She testified that Harvey's aggressive behavior led her, on at least one occasion, to fear she would be hit. ER189. She stated she was extremely intimidated when Harvey would yell and point his finger at her, and that she was "scare[d] . . . to death" when she would suddenly find a silent Harvey standing over her watching her. ER206. Bhend likewise testified that Harvey's frequent and aggressive outbursts directed at her left her upset and intimidated. Bhend also described an incident in which, when Harvey lunged across the table at her, Bhend feared "he might strike me." ER282. She described herself as in "state of panic" and feeling "physically threatened" much of the time. ER297, 284. Chamara stated that, as a result of Harvey's intimidating outbursts, simply the "sound of [Harvey's] feet walking towards [her] area . . . raise[d] the hairs on [her] neck." ER584. Aside from a single incident when Harvey threatened to fire Jeff Cloutier, the evidence indicates that Harvey did not cause men to be upset or intimidated. Cloutier himself deemed "the women at our office" as the employees who felt "vulnerable" to Harvey, not the men. ER573. And it was the "fear of the women at our office" that led the union to distribute whistles around the office. ER573. The record suggests several reasons why the women felt so much more intimidated and threatened by Harvey's abusive behavior. The primary reason is the difference in treatment: the record indicates that Harvey yelled at women more frequently, with more physical aggression and more venom, than he yelled at men. An additional reason was suggested by Jeff Cloutier, who explained that the nature of the jobs the women held meant that female employees spent most of their time in the Anchorage office with Harvey while most male employees spent a considerable amount of time outside the office. As Cloutier put it, "[i]t was only the women [who] stayed there, and it was the women who felt most vulnerable to . . . his berating and loud voice." ER573. The district court acknowledged the evidence that the women's work environment was more severely altered by Harvey's conduct than was the men's, but the court concluded that even if women "were more negatively affected by [Harvey's] behavior," there was no unlawful discrimination absent a showing that Harvey was motivated by lust or animus toward women. ER611. The district court's dismissive treatment of the evidence of the women's work environment is flawed for two reasons. First, as discussed above, the evidence that the women actually experienced a hostile working environment supports the inference that Harvey, in fact, treated female employees more harshly than he treated men. This difference in treatment is evidence of discrimination because of sex. Oncale, 523 U.S. at 80-81. The second problem with the court's focus on motive, rather than the actual work environment, is that it is inconsistent with the statute and case law. Under the statute, the critical inquiry is whether Harvey's actions created a working environment for women at NEA-Alaska that was hostile and abusive in a way it was not for men. See 42 U.S.C. 2000e-2(a)(1) (prohibiting discrimination in "conditions . . . of employment . . . because of . . . sex"); Oncale, 523 U.S. at 80 (Title VII indicates that the "critical issue" is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed); see also EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R.  1604.11(a) ("verbal or physical conduct of a sexual nature constitute[s] sexual harassment when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment") (emphasis added). Drawing from the statutory language, this Court has held explicitly that the working environment, and not the harasser's motivation, should be the focal point of the inquiry in Title VII cases. Rather than considering the harasser's motives, courts instead must "analyze harassment from the victim's perspective." Ellison, 924 F.2d at 878; see also id. at 880 (even well-intentioned comments can form basis for hostile work environment); Quick, 90 F.3d at 1378 ("The motive behind the discrimination is not at issue because '[a]n employer could never have a legitimate reason' for creating or permitting a hostile work environment.") (quoting Stacks, 27 F.3d at 1326); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir. 1996) ("The fact that plaintiff's abuse was motivated by gender neutral reasons is irrelevant.") (citing Steiner). Evidence that "women may suffer more under a bully [such as Harvey]," thus is not "insufficient" to establish unlawful discrimination, as the district court held. Rather, "[a] complete understanding of the victim's view requires . . . an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women." Ellison, 924 F.2d at 878 (emphasis added); see also Steiner, 25 F.3d at 1464 (quoting Ellison). Under this Court's precedents, the fact that women were more negatively affected by Harvey's conduct can establish an unlawful hostile work environment, even if men and women were treated in exactly the same abusive manner by Harvey, as the district court erroneously appeared to assume. This Court so held in Steiner, where the Court emphasized that "even if" the harasser was equally abusive to men and women, even if he used sexual epithets towards men in an "equally degrading manner," the female plaintiff could still establish gender discrimination. Steiner, 25 F.3d at 1464; see also Swinton v. Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001) (defendant's "status as a purported 'equal opportunity harasser' provides no escape hatch for liability"). Reasoning that "Ellison unequivocally directs us to consider what is offensive and hostile to a reasonable woman," the Steiner court concluded that similar conduct may create a hostile work environment for women but not men. Id.; see also id. ("words from a man to a man are differently received than words from a man to a woman"); Yates v. Avco Corp., 819 F.2d 630, 637 n.2 (6th Cir. 1987) ("men and women are vulnerable in different ways and offended by different behavior") (quoted in Ellison, 924 F.2d at 878). To say that women may be affected by certain types of abusive behavior more than men is not to say that women generally are especially sensitive creatures vulnerable to yelling, and that these particular women suffered under Harvey because of their delicate nature. In fact, the record suggests otherwise. Christopher, for example, did not initially cower in response to Harvey's yelling, but instead she confronted him and complained that he was creating a "hostile working environment." ER204. According to Jeff Cloutier, Christopher generally was a "pretty strong person," who sought not to display emotion in groups, but on several occasions Harvey's conduct was so severe that it "[brought] her to tears." ER570. Similarly, Chamara, who served in the army for several years prior to coming to NEA-Alaska, ER88, early on confronted Harvey by walking into his office and telling him "that his yelling at me and his tone of voice offended me." ER119. With time, though, Chamara too grew increasingly intimidated by Harvey as a result of his behavior. A jury instructed to consider Harvey's behavior in its context abusive and physically threatening behavior towards women who worked in close proximity to Harvey most of the time could find that Harvey had created a work environment that a reasonable woman would think was hostile. Harvey's act of yelling at a male employee with whom he had a friendly, "laughing," let's-go-have-a-beer kind of relationship is very different from his yelling at the female staff, who were frequent targets of Harvey's decidedly unfriendly abusive behavior. This context is significant, for determining whether a hostile work environment exists requires "careful consideration of the social context in which particular behavior occurs and is experienced by its target... [and it] often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Oncale, 523 U.S. at 81-82; see also Nichols, 256 F.3d at 872 (quoting Oncale); Drapner v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998) (same). Because there is considerable evidence that Harvey created a work environment more hostile and intimidating for female employees than for male employees, there was sufficient evidence of a Title VII violation to withstand summary judgment. CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 8,392 words. _____________________ Jennifer S. Goldstein STATEMENT OF RELATED CASES The Commission is not aware of any pending cases related to this case. CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 30th day of September, 2004, to the following: Kenneth R. Friedman Friedman, Rubin & White 1126 Highland Avenue Bremerton, WA 98337 Terry A. Venneberg 625 Commerce Street, Suite 460 Tacoma, WA 98402 Leslie Longenbaugh Simpson, Tillinghast, Sorensen & Longenbaugh One Sealaska Plaza, Suite 300 Juneau, AK 99801 Jeremiah Collins Bredhoff & Kaiser, P.L.L.C. 805 Fifteenth Street, N.W. Washington, DC 20005 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 September 30, 2004 ___________________________________________________ 1 “ER*” refers to the page in the Plaintiffs-Intervenors’ Excerpts of Record. “R.*” refers to the record entry number in the district court docket sheet. “CER*” refers to the Commission’s Excerpts of Record. 2 Christopher stated that it was more than twice a year, but she didn’t know if it was more than once a month. ER207. 3 Bhend stated that several colleagues pitched in to help with the mailing and, working together, were able to get it done by 6 p.m., an hour after Harvey demanded. ER264. 4 Harvey’s attitude toward the Associate Staff was evident from the beginning of his tenure when, as Bhend testified, he gathered them together and told them that they were “just secretaries” and that “he could replace us all with people for 10 bucks an hour.” Bhend stated that she found Harvey’s comments “demeaning.” ER261, 296. 5 Immediately prior to his tenure at NEA-Alaska, Harvey had been head of the Mississippi NEA affiliate, or “MAE.” The MAE Board of Directors removed Harvey from his position in February 1998 for behavior the MAE Board President described as “abrasive.” CER10. More pointedly, an MAE staff member told a union official that Harvey was “abusive” to the all-female staff by “yelling, screaming at them, telling them they’re all incompetent.” CER7. 6 In his deposition, Marshall acknowledged that Christopher complained to him about Harvey in December 1999. ER81. 7 This Court reviews a grant of summary judgment de novo. See Atwood v. Newmont Gold Co., 45 F.3d 1317, 1320 (9th Cir. 1995). The Commission, and the plaintiffs-intervenors, argued that the record contained disputed issues of fact sufficient to preclude summary judgment on the harassment claim throughout their joint memorandum in opposition to summary judgment. ER538-61. 8 In this case, a jury certainly could infer that Harvey picked on women more frequently and with more hostility because he does not particularly like women. A jury could infer that he picked on women because he thought he could get away with his abusive behavior more easily. Or a jury could infer that Harvey unwittingly treated women more harshly than men. Cf. Ellison, 924 F.2d at 880 (even “[w]ell- intentioned compliments by co-workers or supervisors can form the basis of a sexual harassment cause of action”). Whatever particular inference the jury might draw, the legally significant fact is simply that there was a difference in treatment of women and men. 9 As discussed above, conduct need not be sexual in nature to form the basis of a hostile work environment claim. The Commission’s reference to sexual conduct in the Guidance is “merely an illustration of how explicit sexual conduct could rise to [the] level [of actionable harassment].” Andrews, 895 F.2d at 1485 n.6; compare EEOC Policy Guidance, “Current Issues of Sexual Harassment,” No. N-915-050, (March 19, 1990) (“the Commission notes that sex-based harassment - - that is, harassment not involving sexual activity or language - - may also give rise to Title VII liability. . . .”) (found at http://www.eeoc.gov/policy/docs/currentissues.html). 10 It is relevant that much of Harvey’s abuse of women involved physically intimidating behavior. A psychological expert submitted a report stating that women may be more susceptible to such abusive behavior by men. “Against the background of a society characterized by . . . [male] aggression and abuse,” she stated, “women learn to fear male anger . . . because it so often signals threatening and unsafe situations.” ER587. Summarizing the literature on the issue, the expert stated that “the two sexes experience aggressive situations very differently. . . .” ER587. Cf. Ellison, 924 F.2d at 880 (while persistent “love letters” and stalking-type behavior could be perceived as nothing more than efforts of “modern-day Cyrano de Bergerac wishing . . . to woo Ellison,” a reasonable woman could find them upsetting and frightening).