EEOC v. Nexion Health at Broadway (5th Cir.) Brief as appellant April 19, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Case No. 05-51770 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, TERRANCE JOHNSON, Intervenor-Appellant, v. NEXION HEALTH AT BROADWAY, INC. D/B/A BROADWAY LODGE, Defendant-Appellee. On Appeal from the United States District Court for the Western District of Texas BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission respectfully requests that oral argument be granted in this case. The district court granted summary judgment to Nexion Health at Broadway based on the court's view that the harassment suffered by Terrance Johnson was not sufficiently severe or pervasive to violate Title VII. The court based this conclusion on the fact that the harasser was an elderly, mentally impaired resident at the nursing care facility where Johnson worked, despite the fact that Title VII contains no exemption for third party harassers such as the resident in this case or employers running nursing home facilities. The evidence is sufficient to permit a finding that the harassment suffered by Johnson was sufficiently severe or pervasive and that the Defendant violated Title VII by failing to address and alleviate the harassment. Because the case will turn on careful review of the record and applicable legal standards, the Commission requests the opportunity for oral argument. TABLE OF CONTENTS STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . . .2 2. Statement of the Facts . . . . . . . . . . . . . . . . . . .3 3. District Court Decision. . . . . . . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 15 ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT BECAUSE THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT THE DEFENDANT SUBJECTED TERRANCE JOHNSON TO A RACIALLY HOSTILE WORK ENVIRONMENT.. . . . . . . . . . . . . . . . . . . . . . . 18 II. A JURY COULD FIND THAT THE DEFENDANT IS LIABLE FOR SUBJECTING JOHNSON TO A HOSTILE WORK ENVIRONMENT BECAUSE IT KNEW OF THE SITUATION AND FAILED TO TAKE REASONABLE STEPS TO ALLEVIATE THE HARASSMENT.. . . . . . . . . 31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 36 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bailey v. Binyon, 583 F. Supp. 923 (N.D. Ill. 1984). . . . . . 30 Brown v. East Miss. Elec. Power Assoc., 989 F.2d 858 (5th Cir. 1993) 21 Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001). . 22, 25, 27, 31 Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997)24, 29, 32, 33 Daso v. The Grafton Sch., Inc., 181 F. Supp. 2d 485 (D. Md. 2002)26 Folkerson v. Circus Circus Enter., Inc., 107 F.3d 754 (9th Cir. 1997)35 Frank v. Harris County, No. 03-21025, 2004 WL 2914035 (5th Cir. Dec. 15, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988) . . . . 23 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . 19, 29 Hockman v. Westward Commc'ns., LLC, 407 F.3d 317 (5th Cir. 2004)19, 32 Hrobowski v. Worthington Steel Co., 358 F.3d 473 (7th Cir. 2004)20, 21 Jenson v. Eveleth Taconite Co., 139 F.R.D. 657 (D. Minn. 1991) 24 Ligenza v. Genesis Health Ventures, 995 F. Supp. 226 (D. Mass. 1998)32, 35 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) . ..31 McGinest v. GTE Serv., 360 F.3d 1103 (9th Cir. 2004) . . . . . 26 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . 18, 19, 29 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . 19 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993)30 Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997)26 Spriggs v. Diamond Auto. Glass, 242 F.3d 179 (4th Cir. 2001) . 25 Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001)24, 32, 34 Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982). . . 28 Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000) . . . . . 18, 22 Wallace v. Texas Tech Univ., 80 F.3d 1042 (5th Cir. 1996). . . 21 Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (5th Cir. 1989). . 23 STATUTES & REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1, 2 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. §§ 1331, 1337, 1343, and 1345. . . . . . . . . . . . .1 29 C.F.R. §1604.11 . . . . . . . . . . . . . . . . . . . . 31, 33 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1337, 1343, and 1345. Final judgment was entered on September 28, 2005. Record Excerpts ("RE"), Tab 4.<1> The Commission filed a timely notice of appeal on November 23, 2005. RE, Tab 5. Terrance Johnson filed a timely notice of appeal on November 28, 2005. R.45. This court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court erred in ruling that there was insufficient evidence to support a finding that nursing assistant Terrance Johnson was subjected to a racially hostile work environment when he was repeatedly called a "nigger" and subjected to other racist slurs by one of the residents of the Defendant's nursing home. 2. Whether the district court erred in finding that Nexion could not be liable for subjecting Johnson to a hostile work environment where it knew of but did nothing to alleviate the situation and instead terminated Johnson based on an unsubstantiated allegation of abuse by the harasser based on the justification that the harasser was an elderly, mentally impaired patient in the Defendant's nursing facility. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final order of the United States District Court for the Western District of Texas dismissing this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The complaint alleges that Nexion Health at Broadway, Inc. ("Nexion") violated Title VII by subjecting Terrance Johnson to a racially hostile work environment. RE, Tab 6 at 1. Johnson intervened in the case on December 15, 2004. R.10. Johnson's complaint seeks relief under 42 U.S.C. § 1981 as well as under Title VII. R.11 at 3. On August 16, 2005, Nexion filed a motion for summary judgment. R.27. On September 8, 2005, the magistrate judge issued his Memorandum and Recommendation advising the district court to grant the Defendant's motion. RE, Tab 2 at 1-2. On September 28, 2005, the district court issued an Order Accepting Memorandum and Recommendation of the United States Magistrate Judge and granted summary judgment to the Defendant. RE, Tab 3. 2. Statement of the Facts On September 2, 2002, Terrance Johnson, who is African American, began work as a Certified Nurse's Assistant (CNA) at the Broadway Lodge Convalescent Home, a facility owned by Nexion. RE, Tab 7 at 1. According to one of his supervisors, Charge Nurse and Assistant Director of Nurses Virginia Chappelle, Johnson "was a very caring, good CNA" who "never sulked, never complained, and performed his duties as asked." RE, Tab 11 (Chappelle Dep. 61). He "treated [the residents] like they were his own family. He was gentle, [and] talked to them." Id. (Chappelle Dep. 64). Another charge nurse who worked regularly with Johnson, Diane Haskins, stated that Johnson "was kind. He really seemed to care about the patients" and that he was "very calm, very gentle and compassionate." RE, Tab 12 (Haskins Dep. 77). On many occasions between late 2002 or early 2003 and July 2003, Johnson was called a "nigger" by a seventy-year-old resident of Broadway Lodge, Pete Patino. RE, Tab 7 at 1. Patino had a long history of mental illnesses and other ailments, including schizophrenia. R.27 (Motion for Summary Judgment, Def. Exh. 1, Patino 9/18/02 Psychiatric Evaluation). On one occasion, Patino yelled at Johnson, "What are you doing in my room nigger!" and "I don't want niggers in my room." RE, Tab 7 at 1. Johnson stated that he reported this incident to his supervisor on duty, Charge Nurse Debra McKinnon. Id. Another time, Patino pointed at Johnson and referred to him as "fucking nigger." Id. at 2. When Patino encountered Johnson, he would say, "There's a nigger in the building; call the cops." Id. Patino stated at various times that "all niggers are rapists and murderers," "niggers are no good; they steal; I hope they all burn in hell," and "the niggers and Mexicans are going to kill me." Id. Johnson testified that Patino would say, "I don't want you feeding me my supper, nigger." RE, Tab 8 (Johnson Dep. 106). Throughout the months that Johnson worked at Broadway Lodge, Patino directed these kinds of racial slurs at Johnson 3–4 times per week. RE, Tab 7 at 3; RE, Tab 8 (Johnson Dep. 108-09). Johnson testified that Patino was "just constantly calling me nigger," RE, Tab 8 (Johnson Dep. 107), and that "it just—it kept happening." Id. (Johnson Dep. 108). Johnson testified that Patino's comments became more frequent as time went on. He testified, "[a]nd then it started getting real serious . . . . Every time he seen [sic] me or I come by him or pass by him, get away from me, nigger, I don't want you around me." RE, Tab 8 (Johnson Dep. 109); see also RE, Tab 12 (Haskins Dep. 145) (agreeing that on the weekends she supervised Johnson, she tried to assign Johnson away from Patino because Patino's use of racist slurs was intensifying). Johnson's coworkers witnessed Patino directing racial epithets at Johnson. RE, Tab 7 at 2; RE, Tab 8 (Johnson Dep. 159) "[Other nurse's aides] knew. They heard it"). Johnson stated that some of them laughed about it. RE, Tab 7 at 3. Johnson testified that by July 2003, "that's when it started getting real, real bad at that time. It wasn't [sic] nobody doing anything about it." RE, Tab 8 (Johnson Dep. 114). Johnson reported Patino's treatment to whichever charge nurse was directly supervising him, to Assistant Director of Nursing Chappelle, Director of Nursing Melissa Gray, and Administrator Karen Kersh, the highest level supervisor at Broadway Lodge. RE, Tab 7 at 2. He testified, "I always let my nurses know." RE, Tab 8 (Johnson Dep. 109); see also id. (Johnson Dep. 159) ("I just went to [sic] chain of command."). He stated that he complained about Patino's racist comments "to all of them more than once." R.33 (EEOC Opposition to Summary Judgment, Exh. C, Johnson Dep. 110, 112). After Johnson complained in May 2003, Kersh assured him that she would take care of the situation. RE, Tab 7 at 2. No change ensued. Id. According to Johnson, Gray also said she would talk to Patino. RE, Tab 8 (Johnson Dep. 134). On another occasion, Patino said to Chappelle, in front of and referring to Johnson, "that nigger is not supposed to be here." RE, Tab 7 at 2. Johnson immediately complained to Chappelle, who was his supervisor for that shift, that "[t]his man has been constantly calling me a nigger for a long time. I've told everybody about this and nobody wants to do anything about it." Id. Haskins, who worked as a charge nurse on weekends, testified that Johnson first complained to her about Patino in the late fall of 2002. RE, Tab 12 (Haskins Dep. 80). She stated that she heard Patino making racist comments and spoke to Patino about it. RE, Tab 12 (Haskins Dep. 66, 81); R.27 (Def. Motion for Summary Judgment Exh. CC, Haskins Dep. 83). Haskins testified that Johnson told her Patino had made repeated slurs and reported it and asked to be moved so that he was not subjected to additional comments. RE, Tab 12 (Haskins Dep. 85). Haskins stated that when she was supervising Johnson on weekends, she assigned him away from Patino "because I didn't want to subject him to Mr. Patino's racial slurs." Id. (Haskins Dep. 88). Haskins testified that Johnson complained to her supervisors but the problem was never addressed. RE, Tab 14 ("Mr. Johnson reported these remarks to the administration to no avail."). She asserted that she had no authority to assign Johnson to another unit—she could only assign him away from Patino on the same unit. RE, Tab 12 (Haskins Dep. 114). Because she worked only on weekends, this brought Johnson minimal relief from the harassment. Id.; see also R.33 (EEOC Opposition to Summary Judgment, Exh. G, Haskins Dep. 146). According to Haskins, no other staff members were the target of racial slurs. RE, Tab 12 (Haskins Dep. 148). In July 2003, Johnson was passing out food trays in the TV room. After Johnson walked by Patino, who was watching television, Patino yelled, "It's the niggers in the TV; here's one; they're going to kill me. Those niggers just came out of the TV and are going to kill me." RE, Tab 7 at 2. Johnson immediately reported the comment to Haskins, who escorted Patino to his room. Id. Later that evening, Johnson told Administrator Kersh that Patino continued to make racist remarks—"‘that niggers are coming out of the TV, raping whites, killing whites.'" Id. Johnson recounted that Patino had stated: "Get this nigger away from me. . . . They ain't nothing but rapists and killers." R.33 (EEOC Opposition to Summary Judgment, Exh. C, Johnson Dep. 117). Johnson testified that Kersh responded, "‘Isn't that the truth? Isn't that what you all used to do long ago?'" RE, Tab 7 at 2; RE, Tab 8 (Johnson Dep. 134) ("And she said, well, ain't that the truth? Ain't that what niggers do?"). Johnson stated that at that point, he "gave up complaining because nothing was being done about my complaints." RE, Tab 7 at 2. Because Kersh was the highest-level supervisor and Johnson knew of no one else to complain to, he did not report her comment. See R.27 (Def. Motion for Summary Judgment, Exh. AA, Johnson Dep. 136). Johnson testified that Patino's treatment and his employer's failure to take any steps to alleviate the problem humiliated and embarrassed him. RE, Tab 7 at 3; RE, Tab 8 (Johnson Dep. 159). Johnson also worried that Patino would do something to have him fired out of racial animus. RE, Tab 7 at 3. Chappelle recalled that Johnson had stated to her that Patino was "going to get me fired because I'm black" and that Johnson was "visibly shaken and upset" by Patino's comments. RE, Tab 11 (Chappelle Dep. 39, 84). On July 12, 2003, Patino complained that Johnson had approached him in his room, put a finger in his face and told him not to cause any more trouble. RE, Tab7 at 2. On July 18, Gray informed Johnson that he was being suspended pending an investigation of Patino's complaint. Id. Johnson denied making the complained-of comment to Patino and reminded Gray that Patino had been targeting him with racial slurs for several months and that Johnson had complained repeatedly about it. Id. Johnson stated that he was not in Patino's room on July 12th and was not working that particular section. Id.; see also R.27 (Def. Motion for Summary Judgment, Exh. AA, Johnson Dep. 116). Haskins confirmed that Johnson was not assigned to Patino on July 12th. RE, Tab 12 (Haskins Dep. 126). However, Johnson's co-worker, Nancy Gaines, stated that she had seen Johnson go into Patino's room on the 12th. R.27 (Def. Motion for Summary Judgment, Exh. Q, Gaines statement). Gray asked Johnson to prepare a witness statement regarding Patino's allegation and instructed him to omit the details about Patino's use of racist slurs toward Johnson because "the State doesn't want to hear all that." RE, Tab 7 at 2. Johnson prepared two statements. One was dated July 18 and stated only the time Johnson clocked in on July 12th, his assignment, that he had no contact with Patino, and the time he clocked out, as Gray had requested. Id. at 3. Johnson also prepared a longer statement the following day that described Patino's use of racial epithets and Johnson's complaints to Kersh and several charge nurses. Id. Johnson was terminated on July 23, 2003. Id. Kersh and Gray informed Johnson that they believed Patino's allegation that Johnson had intimidated him. Id. Johnson testified that when he asked them about his complaints of racial harassment, they had no response. Id. Chappelle and Haskins were terminated for not reporting Patino's complaint that Johnson had threatened him. R.33 (EEOC's Opposition to Summary Judgment, Exh. F, Chappelle Dep. 38; RE, Tab 14 (Haskins Statement). According to their testimony, neither reported the incident because they did not believe Patino's allegation that any abuse had occurred. RE, Tab 11 (Chappelle Dep. 39); RE, Tab 12 (Haskins Dep. 95, 116). Chappelle testified that "I thought a lot of this was in the patient's mind." R.27 (Def. Motion for Summary Judgment, Exh. BB, Chappelle Dep. 66). She stated that she had seen Johnson elsewhere at the time Patino said Johnson had come into his room. RE, Tab 11 (Chappelle Dep. 60). She stated she did not investigate Patino's complaint because "I clearly felt like it was not a case of abuse." Id. (Chappelle Dep. 61). Chappelle stated that "I know that sometimes residents will just get it in their head about something, whether it's true or not . . . and they decide they're not going to like that one." Id. (Chappelle Dep. 59). Haskins testified that no grounds existed for reporting the alleged threat against Patino. She stated, "I can't report something that apparently according to the patient never happened." R.27 (Def. Motion for Summary Judgment, Exh. CC, Haskins Dep. 105). Haskins stated that she did not credit Patino's allegation because when she asked him why he thought "the black man would hurt him," he said he "didn't know." Id. Haskins recounted that when she questioned him, Patino "denied that anything had happened no matter . . . what I said to him or how I asked him." Id. (Haskins Dep. 132). Additionally, Haskins testified that at the time of the alleged incident, Patino approached Johnson at the nurse's station without fear or apprehension. Id. (Haskins Dep. 97). She stated Patino came back a few minutes later "crying and whining" and said that a black man had put his finger in his face and said not to cause trouble, yet just before that, he said nothing had happened and "kept denying everything." Id. (Haskins Dep. 104-05). Haskins opined that Patino was afraid of Johnson when Johnson had done nothing because Patino was bigoted. Id. (Haskins Dep. 111). Haskins also testified that when she told Gray and Kersh about Patino's use of the word "nigger" toward Johnson at Haskins' exit interview, "they didn't seem the least bit interested." RE, Tab 12 (Haskins Dep. 138, 143). Johnson testified that he did not think Kersh believed Patino's allegation of abuse because during the investigation of the incident, she did not assign Johnson away from Patino. "She didn't move me. She kept me right there and she let me suffer." R.27 (Def. Motion for Summary Judgment, Exh. AA, Johnson Dep. 162- 63). Haskins testified that if she had had the authority, "I would have moved Mr. Johnson . . . . I would have made it so that they came into contact with each other as minimally as possible." RE, Tab 12 (Haskins Dep. 114). Gray testified that she could have assigned Johnson to a division where he would not have contact with Patino. RE, Tab 9 (Gray Dep. 43). Kersh stated that "the charge nurse does have authority to change assignments and to ask someone to work on one hall versus another. So there's some flexibility in assignment." She agreed that there was that remedy available to keep apart Patino and Johnson. RE, Tab 10 (Kersh Dep. 127). Soon after Johnson's termination, Patino was discharged from Broadway Lodge for making verbal and physical threats towards staff and others. RE, Tab 13 (Dinbali Dep. 106). He was admitted to an inpatient psychiatric facility. Id. (Dinbali Dep. 131); RE, Tab 14 (Haskins Statement). 3. District Court Decision The district court granted summary judgment for the Defendant, accepting the Magistrate Judge's Memorandum and Recommendation recommending that the Defendant's motion for summary judgment be granted. RE, Tab 3 at 9. The court agreed with the magistrate judge's conclusion that the Fifth Circuit's decision in Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001), precludes relief for the Plaintiffs in this case. As the magistrate judge detailed, the plaintiff in Cain was employed as a nurse by a home care placement agency and assigned to care for a homebound patient suffering from Alzheimer's and Parkinson diseases. The patient repeatedly propositioned Cain for sex and called her disparaging names, including racial epithets after he learned she had dated an African American man. RE, Tab 2 at 6. The Fifth Circuit affirmed the district court's grant of summary judgment to the Defendant on the grounds that the plaintiff failed to establish a prima facie case of hostile work environment. The court of appeals concluded that the harassment complained of was not sufficiently severe or pervasive because the harasser was "an elderly and impaired individual." RE, Tab 2 at 7. The court of appeals emphasized that Cain was expected to care for victims of debilitating diseases and their particular failings such as Alzheimer's and Parkinson diseases. The court of appeals deemed the conduct "‘unacceptable but pitiable'" and determined that it was not "‘so severe or pervasive as to interfere unreasonably with Cain's work performance or, given the circumstances, to create an abusive working environment.'" Id. (quoting Cain). The district court agreed with the magistrate judge that this case cannot be distinguished from Cain. The court found it immaterial that there was no evidence that Patino's racial harassment was an uncontrollable byproduct of his mental illness, as argued by the Plaintiffs in their objections to the magistrate judge's recommendation, and noted that Patino suffered from schizophrenia and delusions. RE, Tab 3 at 7-8. The district court agreed with the magistrate judge that the fact that Cain was offered reassignment while Johnson was not "does not appear to be a fact critical" to the Fifth Circuit's determination in Cain. The district court concluded that "the important facts of the cases are more similar than different." Id. In the district court's view, in both cases, the harassment was "repeated and offensive," neither Cain nor Johnson were "physically threatened in any way," and in both cases, "the offender was an elderly, impaired individual in need of personal care who could not be held accountable for his actions." Because Patino "cannot be controlled, the nursing home should not be held liable for failing to try to control him." Id. The court read Cain "to suggest that persons who work in these types of environments do so knowing their patients are impaired and will at times speak inappropriately." Id.; see also RE, Tab 2 at 10 (Magistrate judge found "no basis for distinguishing Cain from the case at bar. The essence of that decision derives from the unique environment created by the treatment of elderly and mentally-impaired individuals and the fact that those individuals, whose verbal conduct is not controllable and is, in fact, part of the reason for their presence in a treatment setting, are the source of the harassment."). Rejecting the Plaintiffs' argument that Cain should be read narrowly, the district court stated that Cain does in fact hold that "a third-party hostile work environment claim cannot exist simply because the offender is an impaired patient in a nursing facility" "at least when the harassment is verbal only and does not impact the physical safety or integrity of the employee." RE, Tab 3 at 8. The court deemed its determination consistent with the magistrate judge's conclusion that the cases offered by the Plaintiffs in support of the proposition that liability attaches in some circumstances when the harassment is generated by patients of a nursing facility are distinguishable because these cases involved physical violence, sexual touching, and more extreme forms of harassment. See RE, Tab 2 at 8-9. The district court noted that Johnson "agreed to work with Mr. Patino and other elderly individuals whose debilities required them to have special care." RE, Tab 3 at 7. The district court also ruled that the Plaintiffs failed to establish that the harassment suffered by Johnson affected a term, condition, or privilege of employment. RE, Tab 3 at 9. The court stated that the Plaintiffs' argument that Patino's harassment resulted in Johnson's termination "is a separate issue from Mr. Patino's racial harassment." Id. "While asserting that the harassment was embarrassing, Mr. Johnson does not allege the harassment affected a term, condition or privilege of his employment in any way besides termination." Id. SUMMARY OF ARGUMENT The district court erred in granting summary judgment to Nexion because the evidence in the record was sufficient to support a finding that the racial harassment Johnson was subjected to was sufficiently severe or pervasive to violate Title VII, and that Nexion is liable for subjecting Johnson to a hostile work environment because it knew of the harassment and failed to take reasonable steps to address it. First, the undisputed evidence that Johnson was repeatedly referred to as a "nigger" and the target of other racist comments by Broadway Lodge resident Pete Patino is sufficient to support a finding that Johnson was subjected to a racially hostile work environment in violation of Title VII. A jury could find the harassment both subjectively and objectively hostile. Johnson complained of Patino's slurs on many occasions through the chain of command at Broadway Lodge from the charge nurses supervising him to the administrator of the facility, Karen Kersh. He testified that Patino's comments, made often and publicly, humiliated him and that he feared he would lose his job as a result of Patino's bigotry. A jury could find the environment objectively hostile because of the egregiousness of the comments—the use of the slur "nigger" is considered by numerous courts to be the most offensive and inflammatory of racial slurs in the English language—and because they were made repeatedly in front of coworkers and other residents, some who found them amusing. The fact that the harasser in this case was an elderly, mentally impaired resident of a nursing care facility does not alter the severity or pervasiveness of the harasser's conduct. There is no statutory support for a blanket exception to Title VII's protection when the harasser is a patient or resident of a nursing care facility and the decision in Cain v. Blackwell should not be read to establish such a rule. Furthermore, the harassment at issue in Cain was not as egregious, the setting was in a private home where any humiliation stemming from the harassment was not public, and most importantly, the plaintiff declined her employer's offer of a transfer, indicating she did not find her workplace subjectively hostile. Thus the holding of Cain should be limited to the unique facts of that case and read narrowly. Nor does the fact that Johnson knew he would be caring for elderly, impaired residents at Broadway Lodge preclude a jury finding that his work environment was racially hostile. The district court legally erred in concluding that an employee in Johnson's position could never bring an actionable hostile work environment claim in a nursing home setting. There is no reason Johnson should have assumed the risk that a patient in his care would commit such egregious and hostile acts of racial harassment, even if it was reasonable to assume he might have to work with difficult, elderly and impaired residents. The district court also mistakenly required additional evidence that the harassment suffered affected a term, condition, or privilege of employment beyond the evidence of an actionable hostile work environment. No additional showing is necessary—it is the hostile work environment in and of itself that affects a term, condition, or privilege of employment. Finally, an employer is liable for subjecting one of its employees to a hostile work environment generated by a non-employee third party where it knew or should have known of the harassment and failed to take remedial action. Given the circumstances of this case, a jury could easily find that Nexion failed to exercise reasonable care to avoid and eliminate the harassment once Johnson reported it. Nexion's liability turns on its failure to do anything to protect Johnson from the harassment, not on its inability to control Patino's outbursts, as the district court seemed to believe. The evidence would support a finding that Nexion is liable for subjecting Johnson to a racially hostile work environment because it failed to take reasonable steps to alleviate the harassment, such as reassigning Johnson to a hall or ward away from Patino or moving Patino to another facility. Given the ease of the solution, a jury could find Nexion did not act reasonably in doing nothing to alleviate the situation and instead terminating Johnson's employment based on a poorly investigated, highly suspect complaint of resident abuse by the harasser. ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO NEXION BECAUSE THE EVIDENCE WOULD SUPPORT A FINDING THAT JOHNSON WAS SUBJECTED TO A RACIALLY HOSTILE WORK ENVIRONMENT. Racial harassment is actionable under a hostile work environment theory when the harassing conduct is "sufficiently severe or pervasive to alter the conditions [of the victim's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000)<2>. The conduct must be both objectively and subjectively abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (an objectively hostile or abusive work environment is one that a reasonable person would find hostile or abusive; if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment); Hockman v. Westward Commc'ns., LLC, 407 F.3d 317, 325 (5th Cir. 2004) ("For harassment to affect a term, condition, or privilege of employment, it must be both objectively and subjectively abusive."). In considering whether harassment is sufficiently severe or pervasive to violate Title VII, the fact finder considers the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23. The undisputed evidence that Johnson was repeatedly referred to as a "nigger" and the target of other racial slurs by resident Pete Patino would allow a finding that Johnson was subjected to a hostile work environment in violation of Title VII. First, the harassment in this case was both sufficiently severe and pervasive to violate the law, although it need not be both severe and pervasive. Johnson testified that Patino referred to him as "nigger" or "fucking nigger" "constantly" and told him repeatedly that he did not want Johnson caring for him. Patino also commented in Johnson's presence that "niggers are rapists and murderers," "niggers are no good; they steal; I hope they all burn in hell," "There's a nigger in the building, call the cops," and "niggers and Mexicans are going to kill me." See supra, at 3-4. A reasonable jury could conclude that Johnson perceived his work conditions as subjectively hostile because he complained about Patino's comments on numerous occasions. He testified that he complained to the charge nurses directly supervising him, to the Assistant Director of Nursing, the Director of Nursing, and to the highest supervisory level at Broadway Lodge, Administrator Karen Kersh. See supra, at 4-5. These complaints would support a finding that Johnson viewed his workplace as subjectively hostile. See Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476, 477 (7th Cir. 2004) (evidence that plaintiff complained to supervisors about racial harassment was sufficient to establish the harassment was unwelcome and that he perceived the environment to be hostile or abusive). In addition, Johnson testified that Patino's treatment and Nexion's failure to take any steps to alleviate the harassment humiliated and embarrassed him. RE, Tab 7 at 3; RE, Tab 8 (Johnson Dep. 159). Chappelle testified that Johnson "was upset" and "visibly shaken" by Patino's slurs. RE, Tab 11 (Chappelle Dep. 84). A reasonable jury could also find that Johnson's work environment was objectively hostile both because of the stinging emotional impact of the racial slur "nigger" and because of the frequency with which it was directed at Johnson. "[T]he term ‘nigger' is a universally recognized opprobrium, stigmatizing African- Americans because of their race." Brown v. East Miss. Elec. Power Assoc., 989 F.2d 858, 861 (5th Cir. 1993); see also Hrobowski, 358 F.3d at 477 ("Given American history, we recognize that the word ‘nigger' can have a highly disturbing impact on the listener. . . . Thus, a plaintiff's repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile."). A jury could find that Patino's use of racial epithets was particularly humiliating because he directed them at Johnson in front of other employees, some of whom thought the situation amusing. RE, Tab 7 at 3. The district court's error in this case is plain considering this Court's decision in Wallace v. Texas Tech Univ., where the Court stated that specific evidence of "routinely [made] racist remarks" in the record, such as exists here, creates a fact issue that precludes summary judgment. 80 F.3d 1042, 1049 (5th Cir. 1996). See also Walker, 214 F.3d at 626 (discussing Wallace). A jury could further find that the hostile work environment culminated in Johnson's termination based on a poorly investigated and apparently unfounded accusation of resident abuse by Patino that failed to take into account the history of racial slurs directed at Johnson. By crediting an allegation of patient abuse by a known racist, whom Nexion deemed to be delusional, against an African American caretaker, Nexion intensified the severity of the racial harassment to which Johnson was subjected. The district court misread Cain. Cain does not establish, or purport to establish, a general rule barring hostile work environment claims whenever the harasser is an impaired individual receiving nursing care—rather, the Court made its decision based on the specific facts of that case. See Cain, 246 F.3d at 760 (noting that "in this context" and "given the circumstances," the offensive conduct was not so severe or pervasive as to interfere unreasonably with Cain's work performance or to create an abusive work environment). Consequently, Cain's holding that the remarks in that case were not sufficiently severe or pervasive where made by a person with diminished mental or physical capacity in a home health care environment should not be extended to preclude relief in this case. An employee cannot be deemed to have "assumed the risk" and thereby waive the right under Title VII to a workplace free of repeated racial harassment simply because he elects to enter a profession that presents difficult working conditions. By concluding that the harassment here could not be objectively severe or pervasive enough to violate Title VII because Johnson knew what he was getting into by accepting a job caring for the elderly, impaired residents of Broadway Lodge, the district court essentially ruled that Johnson waived his statutory rights when he took a job with Nexion. This simply is contrary to law. An employee may pursue a hostile work environment claim even though he knew the working conditions would be difficult. This Court has embraced this fundamental principle and the district court erred in construing Cain otherwise. See Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1275 n.11 (5th Cir. 1989) (in reversing the district court's grant of summary judgment, court of appeals noted that "[i]f the district court purported to hold that entering into such an atmosphere [heavily charged with racial or sexual abuse] ‘welcomed' abuse, that position was rejected by the [Supreme] Court in Meritor," which rejected a hypothetical "‘requirement that a man or woman run the gauntlet of sexual abuse in return for the privilege of being allowed to work'"). See also Hall v. Gus Constr. Co., 842 F.2d 1010, 1018 (8th Cir. 1988) (women traffic controllers at road construction site who brought a successful hostile work environment action acknowledged that they had anticipated hearing a good deal of profanity when they accepted their jobs as flag persons, but did not expect the unrelenting pattern of verbal, physical, and psychic abuse to which they were ultimately subjected); cf. Jenson v. Eveleth Taconite Co., 139 F.R.D. 657, 663 (D. Minn. 1991) (while recognizing that "[w]hite gloves, crystal, and fine china are neither required nor expected" in the defendant's mining operation, evidence of pervasive offensive conduct fell within Title VII's ambit). While courts have taken into account caretakers' reasonable expectations given their choice of employment in determining whether a hostile environment exists in cases involving harassment by patients in health care facilities (see Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1245 (10th Cir. 2001); Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997)), this ordinarily is but one of many factors courts look to in making this determination. Moreover, we are aware of no case which holds, as the district court did here, that simply because the employee knew he would be caring for elderly, impaired individuals, no actionable hostile work environment could lie even in the face of repeated racial slurs because the harasser "could not be held accountable for his actions." RE, Tab 3 at 8; see also id. at 7 ("Mr. Johnson agreed to work with Patino and other elderly individuals whose disabilities required them to have special care."); id. at 8 ("The Cain opinion seems to suggest that persons who work in these types of environments do so knowing their patients are impaired and will at times speak inappropriately."). Nothing in Title VII can be read to relieve employers who operate nursing facilities from their responsibility to provide a workplace free of harassment, nor should Cain be read so broadly as to exclude workers like Johnson from Title VII's protection however hostile the environment on the ground that they knew what they were getting into. The district court also erred in concluding that the behaviors in Cain found to be insufficient to support an actionable hostile work environment "are almost identical to those in the case at bar." See RE, Tab 3 at 7. There are significant differences between Cain and this case. First, the nature of the harassment is qualitatively different. The Cain court concluded that the elderly patient's repeated requests for sex were "unacceptable but pitiable conduct" and concluded the conduct complained of was not "so severe or pervasive as to interfere unreasonably with Cain's work performance or, given the circumstances, to create an abusive work environment." Cain, 247 F.3d at 760-61. Repeatedly being called a "nigger" is a different matter. Arguably the singularly most derogatory and malicious racial slur, its use cannot fairly be described as merely "pitiable." See, e.g., Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("Far more than a ‘mere offensive utterance,' the word ‘nigger' is pure anathema to African-Americans"); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) ("It is beyond question that the use of the word ‘nigger' is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination. This word is ‘perhaps the most offensive and inflammatory racial slur in English, . . . a word expressive of racial hatred and bigotry.'") (citations omitted); see also Daso v. The Grafton Sch., Inc., 181 F. Supp. 2d 485, 493 (D. Md. 2002) ("The word ‘nigger' is more than [a] ‘mere offensive utterance'. . . . No word in the English language is as odious or loaded with as terrible a history."). A jury also could deem the harassment at issue in this case more humiliating because of the public setting of the convalescent home. Unlike Cain, who was subjected to the harasser's comments in the patient's home where there were no other witnesses, Patino repeatedly referred to Johnson as "nigger" in front of coworkers and other residents. Johnson stated that some employees made fun of the remarks. RE, Tab 7 at 3. A jury could find this public dissemination added to the humiliation Johnson suffered, making it more severe than the harassment at issue in Cain. See, e.g., Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997) (sexual harassment occurring in small office where co-workers could hear abusive comments increased the humiliation and severity of the discriminatory conduct). Significantly, in Cain, the court of appeals stated "[w]e note that Cain never alleged any physical conduct that made her feel threatened, nor did she accept [the defendant's] offer of reassignment, relieving her of the responsibility of care- taking for Marcus." 246 F.3d at 760. The court specifically noted this fact, and then concluded that the harassment was not sufficiently severe or pervasive to constitute a hostile work environment. See id. at 761. It stands to reason that Cain's refusal of her employer's offer to reassign her suggests that she did not perceive her work environment as subjectively abusive. The case here is to the contrary. Here, it is undisputed that Johnson requested reassignment. Haskins testified that Johnson asked to be moved so that he would not be subjected to additional racial slurs. RE, Tab 12 (Haskins Dep. 85). Moreover, although Patino did not physically threaten Johnson, Johnson testified that he feared he would lose his job because of Patino. Chappelle testified that Johnson had stated to her that Patino was "going to get me fired because I'm black" and that Johnson was visibly upset by the situation. RE, Tab 11 (Chappelle Dep. 39, 84). In fact, Johnson's fear was ultimately realized. The district court misinterpreted the Cain decision when it concluded that Cain's refusal of reassignment was unimportant to this Court's decision in that case. The Court cites this and other facts and then holds, based on these factors, that the harassment was not sufficiently severe or pervasive enough to interfere with Cain's work environment or create an abusive work environment. 246 F.3d at 760-61. The district court's assertion that Cain's refusal of reassignment was unimportant to the decision is therefore erroneous. Additionally, whether Patino's racial slurs were a product of his schizophrenia and delusions is immaterial to whether the environment was sufficiently severe or pervasive. At one point, the district court seemed to recognize this. See RE, Tab 3 at 7 (noting that in Cain, the Fifth Circuit did not cite to or rely upon any evidence showing the patient's harassing conduct was an uncontrollable by-product of his illnesses). Yet, the district court goes on to note that "[i]n any event, the summary judgment evidence shows Mr. Patino did suffer from emotional and behavioral problems, including schizophrenia and delusions, for which he received mental health treatment." Id. The district court obviously viewed the evidence of Patino's impairments as important to its decision that there could be no hostile environment. This too was error. It is well-established that the intent of the harasser is irrelevant to establishing a hostile work environment. See, e.g., Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 n.3 (5th Cir. 1982) ("[I]t is not necessary to show intent in a case challenging a discriminatory working environment."). Instead, it is the effect of the harasser's behavior on Johnson that is critical. See Crist, 122 F.3d at 1111 (focus of harassment cases is "primarily on the effect of the conduct"). The district court also erred in holding that the Plaintiffs failed to offer evidence that the harassment suffered by Johnson affected a term, condition, or privilege of employment. See RE, Tab 3 at 9. It was error to require an additional showing beyond the evidence of the hostile work environment. Although "not all workplace conduct that may be described as ‘harassment' affects a ‘term, condition, or privilege' of employment within the meaning of Title VII," Meritor, 477 U.S. at 67, evidence of racial harassment that is sufficiently severe or pervasive in and of itself discriminatorily alters an employee's terms, conditions, and privileges of employment. As the Supreme Court has directed, "the language of Title VII is not limited to ‘economic' or ‘tangible' discrimination. The phrase ‘terms, conditions, or privileges of employment' evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment . . . .'" Id. at 64 (quoting Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13 (1978)); see also Harris, 510 U.S. at 25 (Ginsburg, J., concurring) ("It suffices to prove that a reasonable person subjected to the discriminatory conduct would find . . . that the harassment so altered working conditions as to ‘ma[k]e it more difficult to do the job.'") (internal citation omitted). A jury could conclude that being called a "nigger" repeatedly in the workplace and having his numerous complaints ignored by the Defendant altered Johnson's terms, conditions, and privileges of employment. "Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment,' than the use of an unambiguously racial epithet such as ‘nigger.'" Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (quoting Meritor, 477 U.S. at 67); see also Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984) ("The use of the word ‘nigger' automatically separates the person addressed from every non-black person; this is discrimination per se."). Johnson testified that Patino's treatment and his employer's failure to take any steps to alleviate the problem humiliated and embarrassed him. RE, Tab 7 at 3; RE, Tab 8 (Johnson Dep. 159). He also worried his job was being jeopardized in that Patino would do something to have him fired out of racial animus. RE, Tab 7 at 3); see also RE, Tab 11 (Chappelle Dep. 39). Chappelle recalled that Johnson "was visibly shaken and upset" by Patino's comments. RE, Tab 11 (Chappelle Dep. 84). II. A JURY COULD FIND THAT THE DEFENDANT IS LIABLE FOR SUBJECTING JOHNSON TO A HOSTILE WORK ENVIRONMENT BECAUSE IT KNEW OF THE SITUATION AND FAILED TO TAKE REASONABLE STEPS TO ALLEVIATE THE HARASSMENT. An employer is liable for subjecting one of its employees to a hostile work environment generated by a non-employee third party where it "knew or should have known of the harassment and failed to take remedial action." Cain, 246 F.3d at 760; Frank v. Harris County, No. 03-21025, 2004 WL 2914035, at *4 (5th Cir. Dec. 15, 2004) ("This Circuit has recognized that employers may be liable under Title VII for the conduct of nonemployees in the workplace when the employer knows of the harassment but fails to act."); 29 C.F.R. §1604.11 ("An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action."). The standard for evaluating third-party harassment claims is the same as for co-worker harassment. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10th Cir. 1998) ("An employer who condones or tolerates the creation of such an environment [permeated with discriminatory intimidation, ridicule and insult] should be held liable regardless of whether the environment was created by a co- employee or a nonemployee, since the employer ultimately controls the conditions of the work environment."); see also Ligenza v. Genesis Health Ventures, 995 F. Supp. 226, 230 (D. Mass. 1998) ("[A]n employer may be liable for non-employee misconduct when the employer has the requisite knowledge and control over the situation and fails to take remedial action."). The standard is thus a negligence inquiry. See Hockman, 407 F.3d at 325 (in coworker harassment case, one element of a hostile work environment claim is establishing that the victim's "employer knew or should have known of the harassment and failed to take prompt remedial action"). Courts applying this standard consider factors such as the adequacy of the employer's actual or constructive knowledge of the harassment and whether the employer's response was reasonable under the circumstances. See Turnbull, 255 F.3d at 1244-45. "With regard to knowledge, a plaintiff may prove actual knowledge based on her reports of harassment to management-level employees or constructive knowledge based on the pervasiveness of the [racial] hostility within the working environment." Id. at 1244. Courts have found relevant to the reasonableness-of-response inquiry the promptness and effectiveness of any action given the employer's amount of control over the facility. See Crist, 122 F.3d at 1112 (The defendant "clearly controlled the environment in which [the harassing resident] resided, and it had the ability to alter those conditions to a substantial degree."); 29 C.F.R. § 1604.11(e) (The Commission will consider "the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees."). An additional consideration may be the harassment victim's "expectations given [his] choice of employment." Crist, 122 F.3d at 1111. A reasonable jury could conclude that Nexion had actual or constructive knowledge of Patino's frequent use of the term "nigger" in Johnson's presence. Johnson testified that he reported the harassment repeatedly through the chain of command at Broadway Lodge. In addition, Patino referred to Johnson and African Americans generally as "nigger" three to four times per week in common areas of the facility where others overheard these comments. The Defendant both knew and should have known of the harassment suffered by Johnson and does not claim otherwise. A jury could also find that Nexion failed to exercise reasonable care to avoid and eliminate the harassment after Johnson reported it, given all the circumstances. Whether Patino's language could be controlled or whether he could be held accountable for his actions is not germane to the question of whether Nexion failed to take reasonable and available steps to protect Johnson from the hostile environment and the injury it caused. The record indicates that there were a number of alternatives available to Nexion that would have put an end to the harassment. For example, Nexion could have reassigned Johnson to a hall or ward away from Patino or moved Patino to another facility. See Turnbull, 255 F.3d at 1244 ("The focus is not on the conduct itself but on the employer's behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large."). Gray, the Director of Nursing, testified that she could have assigned Johnson to a division where he would not have had contact with Patino. RE, Tab 9. Kersh also admitted that the charge nurse could have assigned Johnson to a hall away from Patino. RE, Tab 10. Haskins assigned Johnson away from Patino during the weekends she was a charge nurse. RE, Tab 12. And ultimately, not long after Johnson was terminated, Patino was moved from Broadway Lodge to a psychiatric facility. RE, Tab 13. The fact that Patino was removed from Broadway Lodge suggests that reassigning the patient was an ameliorative measure available to the Defendant. Given these multiple, relatively easy steps Nexion had at its disposal to protect Johnson from the constant racial harassment, a jury could find that Nexion failed to act reasonably in addressing the situation. "Although patients have rights, employees of long term health care facilities also have the right to a workplace free from [racial] harassment. Thus, [the defendant] may not disclaim all responsibility toward its employees in the name of patient care." Ligenza, 995 F. Supp. at 230. Instead of taking such measures, the highest level supervisor responded to Johnson's complaint of being told that "niggers" were "rapists and murderers" with the comment that that was in fact true. RE, Tab 7 at 2; RE, Tab 8 (Johnson Dep. 134). A jury could find that, rather than being remedial, this response to Johnson's complaint by the administrator of the facility was a ratification of the racial harassment Johnson endured and served only to escalate the hostile work environment. See Folkerson v. Circus Circus Enter., Inc., 107 F.3d 754, 756 (9th Cir. 1997) ("[A]n employer may be held liable for sexual harassment on the part of a private individual . . . where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective action when it knew or should have known of the conduct"). Inasmuch as this conduct by Nexion's manager served only to exacerbate the hostile working conditions suffered by Johnson, a jury could find the company liable for the hostile environment that continued. The district court seemed to be of the view that whether Nexion could be held liable for the hostile work environment was contingent upon its ability to control Patino's racist outbursts. See RE, Tab 3 at 8 ("If, as the Cain Court seems to presume, [the elderly, impaired harasser] cannot be controlled, the nursing home should not be held liable for failing to try to control him."). Whether Nexion could control Patino is not the correct standard for assessing the company's liability. It is the work environment for which the company is held responsible. Nexion had several avenues available to it, including moving Patino, which would have ended the harassment. Accordingly, it is Nexion's failure to control its workplace that serves as the basis for liability. CONCLUSION For the foregoing reasons, the district court's order granting summary judgment to the Defendant should be reversed and this case should be remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7032 Washington, D.C. 20507 Certificate of Compliance with Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 8313 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14 Times New Roman. Julie L. Gantz Attorney Equal Employment Opportunity Commission Plaintiff-Appellant Dated: April 19, 2006 CERTIFICATE OF SERVICE I hereby certify that two paper copies and one electronic copy of the foregoing brief were sent by overnight mail on this the 19th day of April, 2006, to the following counsel of record: Terrence B. Robinson NEEL & HOOPER 1700 West Loop South Suite 1400 Houston, TX 77027 Matthew R. Pearson GRAVELY & PEARSON, L.L.P. 111 Soledad, Suite 300 San Antonio, TX 78205 Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 ******************************************************************************** <> <1> “RE, Tab” refers to material in the EEOC’s Record Excerpts. “R” refers to material filed with the district court listed in the docket sheet. <2> Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 n.10 (2002) (citing Faragher v. Boca Raton, 524 U.S. 775, 786-787, and n.1 (1998)); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986)).