EEOC v. National Education Association–Alaska (9th Cir.) Dec. 17, 2004 Reply brief IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________ Nos. 04-35029 & 04-35201 _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and CAROL CHRISTOPHER, et al., Plaintiffs-Intervenors-Appellants, v. NATIONAL EDUCATION ASSOCIATION-ALASKA, et al., Defendants-Appellees. ____________________________________________________ On Appeal from the United States District Court for the District of Alaska ____________________________________________________ Reply Brief of Equal Employment Opportunity Commission ____________________________________________________ ERIC S. DREIBAND JENNIFER S. GOLDSTEIN General Counsel Attorney LORRAINE C. DAVIS 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 REPLY TO BRIEF OF NEA-ALASKA ..................................................... 1 A. Tom Harvey's persistent, abusive treatment of female employees is evidence of discrimination because of sex................................. 1 B. Tom Harvey's unrelenting abuse of female employees created a hostile work environment ................................................... 11 REPLY TO BRIEF OF NEA ........................................................... 14 Statement of Issues ............................................................. 14 Statement of Facts .............................................................. 14 Argument ........................................................................ 22 A. NEA is properly named as a defendant because it unlawfully interfered with the opportunity of female employees to work in an environment free of discriminatory harassment and abuse ............................... 22 B. Because NEA was aware of the charge, assisted NEA-Alaska in responding to the charge, and knew of its own role in the hostile work environment, the procedural prerequisites were satisfied ................... 26 CONCLUSION ...................................................................... 29 CERTIFICATE OF COMPLIANCE ....................................................... 29 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abramson v. William Patterson Coll., 260 F.3d 265 (3d Cir. 2001) ................. 7 Anderson v. Pac. Mar. Ass'n, 336 F.3d 924 (9th Cir. 2003) ................... 22, 26 Ass'n of Mexican-Am. Educators v. Calif., 231 F.3d 572 (9th Cir. 2000) (en banc) ................................................. 22 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) ................... 12, 13 Burlington Industries v. Ellerth, 524 U.S. 742 (1998) ............................ 9 Davis v. Coastal Int'l Sec., 275 F.3d 1119 (D.C. Cir. 2002) ...................... 7 EEOC v. First Midwest Bank, 14 F.Supp.2d 1028 (N.D. Ill. 1998) .................. 28 EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. 1980) ............................... 28 EEOC v. Pierce Packing, 669 F.2d 605 (9th Cir. 1982) ............................ 28 EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978) ................................. 28 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) ............................... 7, 12 Erickson v. U.S., 976 F.2d 1299 (9th Cir. 1992) ................................. 22 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............................. 9 Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir. 1983) .................... 22 Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988) ......................... 12 Hardin v. S.C. Johnson & Son, 167 F.3d 340 (7th Cir. 1999) ................... 7, 8 Harris v. Forklift Sys., 510 U.S. 17 (1993) .................................... 12 Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977) ............................ 7 Kopp v. Samaritan Health Sys., 13 F.3d 264 (8th Cir. 1993) ...................... 8 Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. 2000) ............ 12 Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999) ............................ 10 Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) .................. 10 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) ....................... 6 Palesch v. Missouri Comm'n on Human Rights, 233 F.3d 560 (8th Cir. 2000) ........ 7 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) .................................12 Sanchez v. City of Santa Ana, 936 F.2d 1027 (9th Cir. 1990) .................... 13 Schnellbaecher v. Baskin Clothing, 887 F.2d 124 (7th Cir. 1989) ................ 28 Scusa v. Nestle U.S.A., 181 F.3d 958 (8th Cir. 1999) ............................ 7 Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990) ................................. 27 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) ................ 8 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2004) ................. 13 Wrighten v. Metro. Hosp., 726 F.2d 1346 (9th Cir. 1994) ........................ 27 STATUTES and GUIDANCE 42 U.S.C. § 2000e-5(f)(1) ...................................................... 28 EEOC Enforcement Guidance, "Vicarious Employer Liability for Unlawful Harassment by Supervisors," (found at http://www.eeoc.gov/policy/docs/harassment.html) ......................... 10 REPLY TO BRIEF OF NEA-ALASKA A. Tom Harvey's persistent, abusive treatment of female employees is evidence of discrimination because of sex. In its opening brief, the Commission discussed the considerable evidence that NEA-Alaska Assistant Executive Director Tom Harvey's abusive behavior created a hostile work environment for the female employees in the Anchorage office of NEA-Alaska. There was evidence that Harvey "yelled," "screamed," and swore at his female subordinates at NEA-Alaska on a "daily" basis. There was evidence that he "continually . . . berated" female employees. There was evidence that Harvey's abuse of female employees was often physically threatening: Julie Bhend, Carol Christopher, and Carmela Chamara all described incidents in which Harvey screamed in their faces, shook his fists in their faces, lunged at them – all meant to intimidate, to get them to "cower down." Finally, there was evidence that Harvey's conduct had a profound impact on the female employees, who testified to feeling "distraught," "physically threatened,"and "scare[d] . . . to death" in their workplace. NEA-Alaska, in its brief in response, claims this evidence is not enough to show discrimination because of sex. NEA-Alaska emphasizes that Harvey was "abrasive and sometimes combative" to male employees too, and claims that its male and female employees thus "were exposed to like conduct from Harvey." NEA-AK Br. 32, 36. The only difference between the men and women, NEA-Alaska asserts, was that the women found Harvey's conduct more upsetting than did the men. NEA- AK Br. 38 (plaintiffs have shown only "their subjective belief that Harvey was more abusive towards them"); NEA-AK Br. 45 (intervenors' "subjective interpretation of Harvey's words and conduct" insufficient to establish gender-based harassment); NEA-AK Br. 38 (Harvey's "unpleasantness" not "objectively gender based"). NEA-Alaska's characterization of this case is patently incorrect. The Commission's gender harassment claim is not predicated on subjective interpretations; it is based on the record evidence showing that Harvey in fact behaved abusively towards female employees far more often than towards men, that he treated women with more venom and hostility, and that he was more physically threatening toward women than toward men. NEA-Alaska states that Harvey yelled at "six" men. NEA-AK Br. 27-28. Of those men, Mark Jones testified that Harvey raised his voice at him only on "a couple of occasions" and only for a "very short" period of time. ER324. The record indicates that Harvey "raised his voice" at Don Oberg "[o]ne time" when asking Oberg about how some bargaining was going. ER328. NEA-Alaska states that Bhend "observed Harvey . . . raising his voice to [Rich] Kronberg." NEA-AK Br. 27 (citing ER288-289). In fact, Bhend stated she observed "one instance" when Harvey yelled at Kronberg when Kronberg went into a "conference room because [Harvey] was yelling at Carol [Christopher] so much. And [Kronberg] went in to intervene and I think Mr. Harvey's voice was raised at that time. I think he settled [down] after Mr. Kronberg went in." ER289; see also ER189 (Christopher describing same incident: Harvey is "yelling and screaming, and then . . . he gets right in my face with both of his fists, and he's shaking them, and he's stiff. . . . And I'm bracing myself, because I thought I was going to be hit. . . . And then Rich Kronberg comes around, and goes . . . what's going on here. . ."). NEA-Alaska lists Clarence Bolden as a man Christopher "witnessed receiving [yelling] treatment," NEA-AK Br. 27. Christopher actually stated only that Harvey "[p]robably" yelled at Bolden. ER211. NEA-Alaska also lists James Alter as one of the men "upset" by Harvey's yelling. NEA-AK Br. 28. Alter described one occasion when Harvey yelled at him while remaining seated on his side of the desk. ER336. Although NEA-Alaska asserted in its brief that "[t]he exchange ‘upset' Alter," NEA-AK Br. 28 (citing ER336), Alter himself did not describe it that way. It was the attorney deposing Alter who used the word "upset" in questioning Alter about the yelling incident. ER336 ("Q. Would you say that this incident upset you?"). Alter initially answered "Yeah," but then immediately qualified his answer: "I mean, I guess it's all relative. I mean, I obviously didn't like it, and I thought it was totally inappropriate." ER336. The accounts of female employees differ markedly from those of the men.<1> Christopher testified that "every day" she experienced some kind of abusive behavior from Harvey – whether it be "screaming and yelling," shaking his fists "right in [her] face," or pointing his finger in her face and yelling in order to intimidate her. ER178, 189-91. Bhend also described an environment that was hostile on "a daily basis." According to Bhend, Harvey yelled at her frequently, and in a "loud and threatening" voice meant "to intimidate" her. ER302-03. Bhend described incidents in which Harvey shook his fist in her face, slammed a table, lunged at her, and grabbed her shoulders in physically threatening ways. ER282-85, 297. Finally, Chamara described abusive behavior so frequent and "physically threatening" that she felt that she never knew "if he's going to explode, if he's going to come at you..... [it was ] like working with a ticking time bomb." ER584. As the Commission discussed in its opening brief (at 14), there was one man – Jeff Cloutier – who described himself as "upset" after an interaction with Harvey.<2> The record indicates that this incident was an aberration, however. In general, if Harvey yelled at Cloutier, his tone was far less hostile – more like yelling, "then, let's go have a beer kind of thing." ER211; see also ER209 (Harvey's loud and profane interactions with Cloutier were more like "bantering," and would be followed "at the end of the day" by "talking, laughing, laughing"). Indeed, Cloutier himself described the work environment at NEA-Alaska as hostile for the women, not the men. ER573 ("it was the women who felt most vulnerable to . . . [Harvey's] berating and loud voice'); id. ("berating" "was about getting in their space and Harvey being angry and hollering at them. That was the general fear of the women at our office."). What the record thus demonstrates is that Harvey was nasty, abusive, and physically threatening towards female employees on a regular basis; he was not similarly abusive to men. NEA-Alaska acknowledges the Commission's basic argument – that the evidence shows there were more instances of abusive conduct with women, and that the abuse was more severe – but contends this evidence nonetheless cannot establish gender-based harassment. NEA-Alaska argues, somewhat cryptically, that the comparative evidence is insignificant under Title VII because "there is no such ‘bright line' numerical rule." NEA-AK Br. 34. It is unclear precisely what NEA- Alaska means by its attack on a "numerical rule." If defendant means to argue that comparative evidence of more frequent, more severe abuse of women cannot suffice to show gender discrimination, its argument is at odds with clear Supreme Court precedent. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Court expressly identified "comparative evidence about how the alleged harasser treated members of both sexes" as one of the basic methods of showing "‘discriminat[ion] . . . because of . . . sex.'" Id. at 80-81 (quoting Title VII). The Commission did just that; it produced substantial evidence that Harvey treated women far worse than men. NEA-Alaska suggests something more is required. NEA-Alaska repeatedly points to the fact that Harvey's conduct was "devoid of sexually explicit or implicit language, stereotyping, innuendo, or animus." NEA-AK Br. 37; NEA-AK Br. 34 n.6 ("sexually explicit language, stereotyping, or animus" absent); NEA-AK Br. 38 ("no epithet, no stereotyped work assignment"); NEA-AK Br. 39-40 (Harvey's conduct "bears no sexist overtones"). But as NEA-Alaska itself acknowledges, the law does not require sexual or gender-specific conduct. NEA-AK Br. 33, 44. What is required, the Supreme Court has explained, is simply evidence from which "an inference of discrimination on the basis of sex" can be drawn. Oncale, 523 U.S. at 80. Such an inference could reasonably be drawn here. A jury could infer from the evidence of more severe and frequent abuse of women that Harvey was a bully who liked to pick on women, or who found it easier to pick on women. A jury could infer that Harvey picked on women because he does not like women. Or a jury could simply find that Harvey unwittingly "exposed [women] to disadvantageous terms or conditions of employment." Oncale, 523 U.S. at 80 (quotations omitted); see also Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 335 n.15 (1977) (discriminatory motive can be inferred from "mere fact of differences in treatment"); Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991) (conduct unlawful "even when harassers do not realize . . . their conduct creates a hostile working environment"); Abramson v. William Patterson Coll., 260 F.3d 265, 277-78 (3d Cir. 2001) (conduct need not be "linked" to "discriminatory animus;" intent to discriminate can be inferred from comparative evidence). None of the litany of cases NEA-Alaska lists in its brief (at 39-44) holds otherwise. What those cases all held was that the particular evidence presented was insufficient to give rise to an inference of gender discrimination. See, e.g., Davis v. Coastal Int'l Sec., 275 F.3d 1119, 1122-24 (D.C. Cir. 2002) (evidence indicated only that male plaintiff harassed by male co-workers because they "hated each other," not because of gender, especially since no other man was subject to similar behavior); Palesch v. Missouri Comm'n on Human Rights, 233 F.3d 560, 567 (8th Cir. 2000) (single person subject to harassment showed only that harassment was due to "personality conflicts"); Scusa v. Nestle U.S.A., 181 F.3d 958, 965 (8th Cir. 1999) (no gender harassment claim where plaintiff testified "she believed . . .[the harasser's] attitude and . . .comments had nothing to do with the fact that she is a woman"). Indeed, one of defendant's cited cases emphasizes that conduct need not be "explicitly sexual or racial in order to create a hostile work environment." Hardin v. S.C. Johnson & Son, 167 F.3d 340, 345 (7th Cir. 1999).<3> What sets this case apart from the cases NEA-Alaska cites is the evidence produced, namely the evidence that Harvey treated female employees worse than he treated men. Cf. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) (harassment gender-based where abuse of women was "different" than abuse of men); Kopp v. Samaritan Health Sys., 13 F.3d 264, 269-70 (8th Cir. 1993) (where harasser abused women more frequently and severely, evidence of gender-based harassment sufficient). Finally, NEA-Alaska's brief repeatedly points out that Christopher, Bhend, and Chamara did not file a grievance over Harvey's conduct. NEA-AK Br. 9 ("Chamara did not grieve any aspect of her treatment by Harvey"); NEA-AK Br. 17 (Bhend "never filed" grievance"); NEA-AK Br. 26 (Christopher "did not grieve any action of Harvey"); NEA-AK Br. 36 (intervenors "ignored" grievance procedure). It is unclear precisely what conclusion NEA-Alaska would have this Court draw from that fact. As the Commission noted in its opening brief, the three women all complained to Harvey about his abusive behavior. Harvey's response was either to ignore their complaints or to threaten them. ER204 (Harvey told Christopher not to "think you can do anything about it...."); ER154 (Harvey threatened Chamara that if she documented a particular conversation, he would "chase it" with negative paperwork). Christopher complained to the Executive Director as well, to no avail. ER317. And the union itself urged employees not to file a grievance, but to blow a plastic whistle if Harvey started to abuse them. ER154 (union representative advised against filing grievance); ER573 (whistles "only tangible way" to protect employees). If NEA-Alaska means to suggest that the lack of a grievance should preclude liability for Harvey's harassment, it misunderstands the applicable legal standards for employer liability. Under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), an employer is liable for a hostile environment created by a supervisor. An employer may have an affirmative defense where there is no tangible employment action, Ellerth, 524 U.S. at 765, but NEA-Alaska never raised the affirmative defense in the district court or in its brief to this Court. It therefore waived any argument that the failure to grieve should absolve it of liability. Even if NEA-Alaska had invoked the Faragher/Ellerth defense, it would fail. The defense requires that an employer show, inter alia, that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Id. Here, NEA-Alaska had no policy prohibiting sex-based harassment or discrimination, nor did it have a policy authorizing it to take disciplinary measures against a harasser.<4> Cf. Nichols v. Azteca Rest. Enters., 256 F.3d 864, 877 (9th Cir. 2001) (company policy would support "reasonable care" finding where policy defined sexual harassment, stated that employees violating policy will be disciplined, and assured employees that they would not be subject to reprisals for making harassment complaint). Though NEA-Alaska officials admittedly knew about Harvey's abusive behavior, they took no steps to correct it. Cf. Montero v. AGCO Corp., 192 F.3d 856, 862-63 (9th Cir. 1999) (employer promptly corrected harassing behavior where, within 11 days of harassment complaint, it conducted thorough investigation and disciplined or terminated harassers).<5> NEA-Alaska therefore cannot avail itself of the Faragher/Ellerth defense. B. Tom Harvey's unrelenting abuse of female employees created a hostile work environment. In its brief, NEA-Alaska acknowledged the evidence that Harvey yelled, screamed, banged his fists on furniture, shook his fists at people, and "generally bullied" employees. NEA-AK Br. 46. There was, in addition, evidence that Harvey lunged at women or pumped his fists so close to their faces that he made them "scared he was going to hurt" them. ER297. The record indicates that this abusive behavior was unrelenting for the female employees of the Anchorage office. Harvey's abuse was so pervasive that, as Chamara described it, "when you hear[d] the sound of his feet walking towards your area . . . , [it would] raise the hairs on your neck because you just don't know what you're going to get." ER584. On summary judgment, this evidence was sufficient to show the existence of a hostile work environment. NEA-Alaska argues that, as a matter of law, there was no hostile or abusive work environment. Even though Harvey "generally bullied" employees, as NEA- Alaska puts it, his conduct was not actionable because "[m]any decisions . . . have rejected sexual harassment claims based on conduct that was as serious or more serious than the conduct at issue in this appeal." NEA-AK Br. 49. NEA-Alaska's argument – that Harvey's abusive conduct was not abusive enough – is fundamentally flawed. It is well-settled that verbally abusive conduct can create a hostile work environment, especially when the verbal abuse is frequent and is accompanied by physical intimidation. Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) ("Repeated derogatory or humiliating statements . . . can constitute a hostile work environment"); id. (plaintiff stated claim where he was "targeted for verbal abuse" and "[h]is supervisors regularly yelled at him"); see also Harris v. Forklift Sys., 510 U.S. 17 (1993) (reversing holding that work environment was not abusive where abuse consisted of frequent insults and innuendos). Indeed, the frequency of Harvey's abuse, the fact that it was "a daily thing," ER178, is significant, for "‘the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.'" Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (quoting Ellison, 924 F.2d at 878).<6> The pervasiveness of Harvey's abuse of female subordinates distinguishes this case from the string of cases on which NEA-Alaska relies. In Kortan v. California Youth Authority, 217 F.3d 1104, 1110 (9th Cir. 2000), for example, the offensive comments were "mainly made in a flurry on [a single day.]" See also id. at 1111 ("offensive conduct was concentrated on one occasion"). Brooks likewise involved a "single episode." 229 F.3d at 924. As the Court put it, "Brooks was harassed on a single occasion for a matter of minutes." Id. at 926. At issue in Vasquez v. County of Los Angeles, 349 F.3d 634, 643-44 (9th Cir. 2004), the Court stated, was "[t]wo isolated offensive remarks" occurring over six months apart, and two instances when the plaintiff's supervisor yelled at him. Thus it was "only a few incidents" that comprised the basis of plaintiff's claim. And in Sanchez v. City of Santa Ana, 936 F.2d 1027, 1031 (9th Cir. 1990), the Court stressed that an internal investigation of plaintiffs' complaints uncovered only "isolated incidents of offensive language."<7> Finally, NEA-Alaska suggests that the three female employees did not subjectively perceive their work environment as abusive because they "confronted Harvey and stood up for themselves." NEA-AK Br. 38 n.10; 49 n.17. There is no basis in law or logic for NEA-Alaska's argument that a woman who complains about abusive behavior cannot subjectively find the work environment abusive. In any event, there is considerable record evidence that the women found the environment abusive, both from their own testimony about feeling intimidated, "distraught," "horrified," and "physically threatened," and from the testimony of male co-workers who observed them "in tears," "very upset," and with a "defeated look." ER570. Finally, the plaintiffs' expert concluded that each of the women experienced psychological harm resulting from Harvey's abusive treatment. ER588-92. Accordingly, there is ample evidence, on summary judgment, to conclude that the work environment was subjectively hostile or abusive. REPLY TO BRIEF OF NEA<8> Statement of Issues 1. Whether NEA is properly named as a defendant where it unlawfully interfered with the opportunity of female employees to work in an environment free of discriminatory harassment and abuse. 2. Whether the procedural prerequisites were satisfied where NEA was aware of the charge, assisted NEA-Alaska in responding to the charge, and knew of its own role in the hostile work environment. Statement of Facts Tom Harvey has had a long relationship with local affiliates of the National Education Association (NEA), working for several affiliates prior to coming to NEA- Alaska. Harvey's relationship with these affiliates has been plagued with many of the same problems that have marked his tenure at NEA-Alaska. For example, Harvey served as Executive Director of the Teachers Association of Baltimore County (TABCO) beginning in 1992. There was evidence that, while at TABCO, Harvey subjected female employees to abusive behavior. One woman, Carole Jeffries, described one such incident: "[Harvey] came flying in the room . . . and walked directly over to me leaned across me . . . [a]nd he's this close to my nose and he's shaking his finger. And he's screaming at me at the top of his lungs, spewing . . . spit and . . . screaming in my face, if you know what's good for you. . . ." ER405-06. After this incident, Jeffries stated, she felt "[f]rightened because I didn't know what he was capable of." ER409. Jeffries stated that Harvey yelled frequently, and that there were other times when Harvey approached her in the same way, "yelling and screaming . . . and getting very close to me and shaking his finger in my face." ER410. Jeffries added that Harvey did not subject male employees to abusive behavior: "The guys never did anything [to defuse the situation]. They would just kind of sit back and be glad it wasn't them." ER413. Another female TABCO employee, Linaya Yates-Lea, described similar behavior: Harvey "came over and yelled at me with a finger in my face. . . . He was screaming at me. . . . [He was] [v]ery hostile." ER434. Yates-Lea added that Harvey "raised his voice all the time." ER434-35. The two male TABCO employees were not subjected to yelling or abusive behavior, according to Yates-Lea. ER436. Yates- Lea eventually quit her job at TABCO. In April 1994, Jeffries filed a grievance through her union complaining about "the hostile work environment [Harvey] created for her." ER427. The grievance caused NSO – the national union for employees of NEA and its affiliates – to report in its June 1994 newsletter that it had placed sanctions on TABCO "for the actions of manager Tom Harvey." ER440. The newsletter explained that Harvey "has forced through harassment, threats, abusive language, shouting and other modes of intimidation, the resignation of two female UniServ directors." ER440. The purpose of the sanctions, according to Jeffries and Yates-Lea, was to warn other NSO members about seeking employment at TABCO, and to "bring that to the attention of anyone in NEA." ER436. Jeffries also stated that she complained about Harvey's abusive behavior to three different NEA officials. NEA's Director of Human and Civil Rights, Earl Jones, told Jeffries "it was terrible that he would do it . . . he's probably gotten away with it before and he'll probably get away with it again, maybe you do need to think about leaving." ER423. Jones referred her to the Mid-Atlantic Region Director, Mr. Felix, to discuss alternative employment with NEA. Jeffries told Felix about how Harvey was "angry and yelling at me . . . and . . . being . . . intimidat[ing.]" ER424. She also told another NEA official, Southeast Regional Director Eugene Dryer, that she had filed a grievance complaining about Harvey's "terrible treatment." ER425. In September 1994, Harvey became executive director of the Mississippi NEA affiliate, known as MAE. At MAE, Harvey was part of an NEA program called the Unified State Executive Director Program (USEDP). Under USEDP, which is designed to help smaller affiliates with the costs of employing executive directors, NEA pays a portion of the executive director's salary and benefits. NEA-ER214. In Mississippi, as well as in Alaska, the portion NEA pays is 30 percent, the maximum under USEDP. NEA-ER124. USEDP Guidelines also state that "[t]he USEDP Executive Director shall be an employee of NEA." NEA-ER216. Although NEA officials testified that NEA has little involvement with affiliates' employment of executive directors, USEDP Guidelines indicate that NEA has at least the authority to take more than a hands-off approach to their employment. For example, NEA must approve an incumbent executive director's admission into the USEDP. NEA-ER216. If an incumbent executive director is not selected, the Guidelines state that "NEA and [the state affiliate] shall jointly develop a list of persons . . .they consider qualified to serve as the USEDP Executive Director . . . . The [state affiliate] shall select from this list the person . . . it wishes to have serve as the USEDP Executive Director." NEA-ER216. The Guidelines also state that NEA, the state affiliate, and the individual executive director shall "jointly determine the USEDP Executive Director's starting date and the length of the term of . . . employment." NEA-ER219. The Guidelines state that NEA may request that the USEDP Executive Director attend training sessions "designed to improve his or her effectiveness." NEA-ER220. The Guidelines require that the state affiliate, "after consulting with the NEA Executive Director," conduct annual performance evaluations of the USEDP Executive Director. NEA-ER220. Finally, the Guidelines discuss termination of the USEDP Executive Director, describing what conduct would justify "for cause" termination and appropriate severance pay. NEA-ER220- 21. In early 1998, MAE decided it no longer wanted Harvey to serve as executive director, notwithstanding the fact that MAE had recently entered into an employment contract with Harvey. According to the MAE Board President, Harvey was routinely abrasive to union members and generally was defensive and hostile in his attitude. CER10. The Board President stated that Harvey was equally abrasive with women and men. But Marius Ambrose, an NSO official who traveled to Mississippi because the staff there was on the verge of a strike, described matters somewhat differently. According to Ambrose, Harvey was "abusive, yelling screaming at them, telling them they're all incompetent and it was all women in that office. . . . They all thought he was . . . an abusive jerk and they were waiting to get rid of him." CER7. The MAE Board President contacted an NEA official because MAE "wanted to know what their options might be in terms of getting somebody else in there besides Mr. Harvey,"as the NEA official put it. ER453. That NEA official – Larry Diebold – traveled to Mississippi to help with matters. In the end, MAE and Harvey entered into a settlement agreement under which he was immediately paid a lump sum amount representing his salary for the third year of his employment contract. ER470. He would also continue to be paid on a regular basis his full salary for years one and two of the employment contract (of which Harvey had already served roughly six months). ER470. The settlement agreement, executed in February 1998, also states that upon his departure from MAE, "Harvey's assignment under the USEDP program will be directed by NEA, but they will no longer include any assignments in the state of Mississippi." ER471. In a separate agreement between NEA and MAE, NEA agreed to pay 30 percent of the "settlement payments" to Harvey and to pay the entire amount of "severance pay for . . .Harvey." ER464. NEA also agreed to "provide an interim Executive Director for MAE," sharing the costs with MAE. ER464. Within two weeks of leaving Mississippi, Harvey was working as NEA- Alaska's interim Assistant Executive Director. His path there started when Vernon Marshall, NEA-Alaska's Executive Director, called an NEA regional official, Nelson Okino, because he needed to fill the Assistant Executive Director slot on an interim basis. NEA-ER133. Okino in turn called Diebold, who told him about Harvey. Okino then gave Marshall Harvey's name and, apparently, information about NEA's agreement to pay Harvey. NEA-ER143-44. According to Jeff Cloutier, Marshall was eager to get Harvey because Harvey's entire salary was being paid under the MAE agreement – Marshall understood that Harvey was an NEA "staff person under their pay that could come to NEA Alaska." CSER2. This meant that NEA-Alaska "could get something for nothing out of the NEA," as Cloutier put it. CSER2. NEA-Alaska only paid Harvey a monthly housing stipend of $1,200. NEA-ER136. Marshall did not look into Harvey's employment background or history before agreeing to take him on. ER78. Notwithstanding the pay arrangement, under which NEA-Alaska paid none of Harvey's salary, Marshall stated that he viewed Harvey as an NEA-Alaska employee who would be "subject to my supervision, . . . and . . . if his performance were a problem, he would . . . be asked to leave, and he would leave." NEA-ER312. However, contemporaneous documents from Marshall referred to Harvey as working "on assignment" for a year; and when Marshall sought to extend Harvey's term beyond a year, he wrote Okino and Diebold that he understood "that my request to exten[d] . . . Harvey's assignment as . . . Interim Assistant Executive Director is appropriate and will be granted." ER477-78. During this time, Harvey and NEA- Alaska had no employment contract; Harvey's contract was the MAE agreement. NEA-ER312. Harvey served as Interim Assistant Executive Director until August 31, 1999, the last effective day of the MAE settlement agreement. Thereafter he was NEA-Alaska's Assistant Executive Director, and NEA-Alaska paid his entire salary.<9> ER449-50. NEA's actual involvement with Harvey and NEA-Alaska did not cease at that point, however. In 2000, after the three female employees filed EEOC charges, Marshall telephoned Okino to discuss the charges; Marshall's contemporaneous notes stated that he "[re]viewed" the charges with Okino. ER524-25. More significantly, Marshall also telephoned NEA General Counsel Bob Chanin in the summer of 2000 to set up a conference call to discuss the EEOC charges. ER527. The subsequent conference call involved discussions about the charges with Marshall, Harvey, NEA- Alaska counsel Leslie Longenbaugh, Chanin, and NEA Associate Counsel Maurice Joseph. ER528; ER518. Thereafter, Joseph was kept informed of the progress of the litigation; he was sent a copy of the complaint, and Longenbaugh called him to tell him about the plaintiffs' intent to join NEA as defendant. ER519. Joseph and Longenbaugh had "three or four" discussions about the response to the motion to join NEA. ER519. The Commission filed suit against NEA-Alaska in July 2001. During the course of discovery, the Commission and intervenors learned what previously had not been made known to them – in particular, information about the USEDP program, about NEA's involvement with Harvey, and its role in bringing Harvey to NEA- Alaska. In June 2002, the Commission and the intervenors accordingly moved to join NEA as a defendant on the grounds that it violated Title VII by assigning to NEA- Alaska a person known to have engaged in unlawful discrimination and harassment in the past and by acting as Harvey's employer while he worked as NEA-Alaska's Interim Assistant Executive Director. ARGUMENT In its brief, NEA raises procedural and substantive issues, both of which entail a complicated set of facts. The district court addressed neither the legal issues nor the facts relevant to NEA's assertion that it is not a proper defendant. The Commission agrees with NEA that the issues are nevertheless ripe for review by this Court.<10> A. NEA is properly named as a defendant because it unlawfully interfered with the opportunity of female employees to work in an environment free of discriminatory harassment and abuse. The "interference with employment opportunities" theory applies where a covered entity "discriminated against and interfered with the employees' relationship with their employers." Anderson v. Pac. Mar. Ass'n, 336 F.3d 924, 931 (9th Cir. 2003); see also id. at 932 (liability appropriate where there exists discriminatory interference by indirect employer and indirect employer had some peculiar control over employee's relationship with direct employer); Ass'n of Mexican-Am. Educators (AMAE) v. Calif., 231 F.3d 572 (9th Cir. 2000) (en banc) (plaintiff may sue third party under Title VII); Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir. 1983) (same); but see Anderson, 336 F.3d at 932 (employers' association not liable because association neither caused nor had any real "power to stop the hostile work environment"). The evidence in this case demonstrates that NEA discriminatorily interfered with the charging parties' right to work in an environment free of unlawful discriminatory harassment, and that the circumstances surrounding Harvey's departure from MAE led to the unique, or "peculiar," control NEA exerted over Harvey. Specifically, the evidence indicates that NEA effectively assigned Harvey to NEA-Alaska. When NEA-Alaska approached NEA about an Assistant Executive Director, NEA gave NEA-Alaska a single name – Harvey's – and offered him virtually free of charge to the affiliate. NEA's interest in sending Harvey is unsurprising because, at the time, Harvey was being paid a salary by NEA but was doing no work. Documents refer to NEA as assigning Harvey, and NEA-Alaska sought NEA's permission to keep Harvey on longer than the initially agreed upon term. The individual at NEA-Alaska who agreed to take Harvey on – Marshall – was himself connected to NEA; he was a USEDP Executive Director receiving thirty percent of his salary and benefits from NEA. In short, NEA's actions were not simply those of a disinterested party making an employment referral, but instead were more like those of an employer reassigning a troublesome employee from one location to another. NEA contends that the Commission would impose liability only by virtue of Harvey's status as a USEDP participant. NEA Br. 30-35. This misstates the Commission's argument. Harvey was not the typical USEDP participant. Ordinarily, a local affiliate pays at least seventy percent of a USEDP participant's salary. In this case, NEA-Alaska paid none of Harvey's salary during the time he was a participant (except for a housing stipend), because of the unique circumstances surrounding Harvey's NEA-negotiated departure from MAE. Contemporaneous documents written by Marshall referring to Harvey as "on assignment" from NEA also support the inference that NEA was acting at least as a joint employer of Harvey during the time the MAE-Harvey settlement agreement was in effect. The language of the settlement agreement further supports this inference. Under the terms of the agreement, the obligation to pay Harvey a salary until August 31, 1999 would cease if "Tom Harvey secures other employment." Harvey continued to be paid under the MAE agreement after beginning to work at NEA-Alaska, indicating that NEA did not view this as new employment, but rather a continuation of his employment with it.<11> NEA's culpability for the abusive environment Harvey created also is grounded in the fact that NEA chose to supply NEA-Alaska with Harvey, whom NEA officials knew had a history of abusive conduct, particularly towards women. Diebold, for example, was directly involved in helping MAE rid itself of Harvey, and so it can be inferred that he was aware of Harvey's abusive behavior towards the all-female MAE workforce. There was evidence that NEA officials were aware of Harvey's abusive behavior at TABCO, notably Jeffries' testimony that she discussed Harvey with three NEA officials. Furthermore, at the summary judgment stage it is fair to infer that the sanctions the national employees' union very publicly placed on TABCO for a hostile work environment provided further notice to NEA of Harvey's abusive conduct. Diebold nonetheless effectively assigned Harvey to work for NEA-Alaska, apparently without ever mentioning or warning NEA-Alaska of Harvey's past conduct. NEA's actions thus laid the foundation for the creation of the hostile work environment, and Harvey began his abusive behavior while essentially acting as an NEA employee. Marshall, the NEA-Alaska official with direct hiring and firing authority over Harvey, was himself subject to some degree of control by NEA by virtue of his participation in the USEDP. Given all these factors, there is evidence that NEA played a sufficiently large role in the creation of the hostile work environment to hold it liable for discrimination. It is true that NEA's role in this case is not identical to that of the defendants in AMAE and Gomez. The Commission readily acknowledges that, unlike cases where the defendant has itself performed the discriminatory acts and where it exerts complete control over the plaintiff's employment or access to employment, NEA did not exert exclusive control. But NEA's role also is not analogous to that of the employer association in Anderson, where this Court held that the association did not cause the harassment nor did it have any meaningful abilty to stop it. 336 F.3d at 932. NEA played a role in causing the hostile work environment by its apparent attempt to pass off an extremely abusive supervisor on employees in Alaska, and through its relationship with Harvey and Marshall it possessed a meaningful ability to stop the abusive behavior. Accordingly, there are sufficient grounds to hold NEA liable. 2. Because NEA was aware of the charge, assisted NEA-Alaska in responding to the charge, and knew of its own role in the hostile work environment, the procedural prerequisites were satisfied. Christopher, Bhend, and Chamara all filed charges alleging that Tom Harvey subjected them to a discriminatory work environment. The charges list the onset of the discriminatory conduct as September 1998 in Christopher's charge, and April 1999 in the other two charges. The charges name only NEA-Alaska as respondent. This latter fact, NEA argues, is "fatal to the claims against NEA." NEA Br. 19. NEA is incorrect: under this Court's precedent, the charging parties' failure to recognize the role NEA played in creating the hostile work environment at the time they filed their charges is not fatal to the claims against NEA. As NEA itself acknowledges, a Title VII claim can be brought against parties not named in a charge "‘as long as they were involved in the acts giving rise to the . . . claim[].'" Sosa v. Hiraoka, 920 F.2d 1451, 1458-59 (9th Cir. 1990) (quoting Wrighten v. Metro. Hosp., 726 F.2d 1346, 1352 (9th Cir. 1994)). Additionally, an unnamed party may be included in a suit where that party "‘should have anticipated' that the claimant would name [it] in a Title VII suit." Sosa, 920 F.2d at 1459. NEA falls within these exceptions. As discussed above, NEA's role in foisting Harvey on NEA-Alaska and the evidence that NEA-Alaska, which paid none of Harvey's salary until September 1999, viewed Harvey as "on assignment" from NEA during that time meant that NEA was "involved" in the abusive environment created. Additionally, the fact that NEA's legal staff conducted a telephone conference regarding the EEOC charges and the fact that the charges indicate Harvey's abusive behavior began during the time Harvey was "on assignment" from NEA are evidence that NEA "should have anticipated" it would be named once the Title VII plaintiffs uncovered the evidence of Harvey's relationship with NEA. NEA therefore was properly joined as a defendant in this action. NEA makes a second procedural argument: it argues that the Commission's claim against NEA cannot proceed because the Commission did not specifically attempt conciliation with NEA. There are three basic problems with NEA's argument. First, as the case on which NEA relies states, what is necessary is that a party be given the opportunity to participate in conciliation. Schnellbaecher v. Baskin Clothing, 887 F.2d 124, 126 (7th Cir. 1989). Unlike EEOC v. Pierce Packing, 669 F.2d 605 (9th Cir. 1982), where there was no conciliation at all, there was conciliation here. At the time, NEA knew of the EEOC charges, and it knew of its relationship with Harvey – the EEOC did not. NEA never sought involvement in the conciliation. Responsibility for its absence from conciliation thus should lie with NEA. The second problem with NEA's argument is that if this Court were to hold that the Commission should have conciliated with NEA, the proper remedy would not be to dismiss the action against NEA, but instead to stay proceedings while conciliation occurs. See 42 U.S.C. § 2000e-5(f)(1) (court may stay proceedings for up to 60 days to further efforts to obtain voluntary compliance); EEOC v. Pet, Inc., 612 F.2d 1001, 1002 (5th Cir. 1980) (court should have ordered stay); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) (if court does not entertain claim it should "stay the proceedings for further conciliation efforts"); EEOC v. First Midwest Bank, 14 F.Supp.2d 1028, 1031 (N.D. Ill. 1998) ("appropriate remedy" for improper conciliation "is not dismissal, but a stay of the proceedings. . ."). Finally, if this Court were inclined to dismiss the Commission's claim against NEA, NEA would still remain a party because the plaintiffs/intervenors are not subject to the statutory conciliation requirement that binds the Commission. See 42 U.S.C. § 2000e-5(f)(1). CONCLUSION We urge this Court to reverse the district court judgment and remand the case for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 6,999 words. _____________________ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 17th day of December, 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 December 17, 2004 *************************************************************************** <> <1> NEA-Alaska asserts that Harvey “‘yelled’ at more male than female NEA-Alaska employees (six men versus five women).” NEA-AK Br. 46-47 n.15. It is unclear how defendant arrived at the latter number, for the record indicates that Harvey “yelled” at or was abusive towards at least ten female employees: Christopher, Bhend, Chamara, Gayle Pierce (ER226), Kimela Cherry (ER295), Virginia McKinney (ER296), Barb Young (ER296), Clare Lewis (ER296), Sandy White (ER296), and Kay[e] Sullivan (ER210). Regardless, the critical distinction was that Harvey’s treatment of male employees generally was more like “bantering,” ER209, whereas women experienced far more frequent and abusive treatment. <2> NEA-Alaska incorrectly asserts that the Commission’s brief did “not acknowledge that Cloutier was left ‘shaky’ and ‘trembling’” after the incident with Harvey. NEA-AK Br. 37 n.8. In fact, the Commission’s brief states: “Cloutier described himself as feeling ‘shaky’ and having ‘trembling’ legs.” EEOC Br. 14. <3> Hardin went on to hold there was insufficient evidence of discrimination where the harasser used similarly offensive language with all employees – male and female – and plaintiff alone (not all or most women) was subject to some non-verbal conduct, such as allowing a door to close in her face. Such conduct was “‘too tepid’” to comprise discrimination. 167 F.3d at 346. <4> The bargained agreement in effect stated only that “NEA-Alaska will make reasonable efforts to protect employees from hostility,” and that, upon receiving a report of “hostility,” NEA-Alaska will “provide assistance in attempting to resolve the problem.” ER162. <5> It is the Commission’s position that a union grievance and arbitration does not generally fulfill an employer’s obligation to prevent and correct harassment because decision–making under such a system addresses the collective interests of bargaining unit members, rather than an individual’s rights under an employer’s anti-harassment policy, and because providing a dispute resolution process does not discharge an employer’s responsibility to investigate and take corrective measures. EEOC Enforcement Guidance, “Vicarious Employer Liability for Unlawful Harassment by Supervisors,” at 16 n.57 (found at http://www.eeoc.gov/policy/docs/harassment.html). <6> Harvey’s frequent verbal abuse of female employees was also “usually . . . in public.” ER178. In this context, abuse of other women can add to the climate of fear and intimidation for female employees. Hall v. Gus Constr. Co., 842 F.2d 1010, 1015 (8th Cir. 1988) (“harassment directed at employees other than . . . plaintiff is relevant to show . . . hostile work environment”). <7> Sanchez concluded that other allegations of a racially discriminatory atmosphere amounted to “a mischaracterization of the record,” so as to preclude a hostile environment claim. Id. at 1036. <8> In its brief, NEA raises issues separate and distinct from those raised by NEA-Alaska. Because these issues also involve an entirely different set of facts, the Commission responds separately to NEA. <9> The USEDP applies only to Executive Directors of affiliates, not Assistant Executive Directors. Marshall, as Executive Director, was in the USEDP and had 30 percent of his salary paid by NEA. NEA-ER311. <10> This Court may also decline to address the issues NEA raises. Erickson v. U.S., 976 F.2d 1299, 1302 (9th Cir. 1992) (“Because this is a factually intensive issue that the district court did not address, we will not do so here. On remand, the district court . . . may entertain a motion for summary judgment based on this defense.”). <11> NEA argues that Harvey began harassing employees only after the MAE agreement expired in September 1999 (when NEA ceased paying Harvey’s salary). NEA Br. 37. In fact, the evidence indicates that Harvey’s abusive behavior began in 1998. For example, Christopher stated that the first incident with Harvey occurred in the Fall of 1998, when he yelled at her loudly and told her she was “fucking up.” ER312. She also stated that in January 1999 the staff got together to discuss Harvey’s “yelling and berating of staff” and to see whether the union could do anything about it. ER312.