EEOC v. Nexion Health at Broadway (5th Cir.) Reply brief June 23, 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 _________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________ 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 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . 4, 5 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) . . . 12 Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001) 1, 2, 3, 6, 7, 8-10 Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997) . .7, 10 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 6, 8, 11, 12, 14, 15 Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) . . . .9 Hrobowski v. Worthington Steel Co., 358 F.3d 473 (7th Cir. 2004) 13 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) 11, 14, 15 Ramsey v. Henderson, 286 F.3d 264 (5th Cir. 2002) . . . . . .6, 11 Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) 7, 10 Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000) . . 6, 12, 13-14 Introduction The Commission alleges in this action that Nexion Health violated Title VII by subjecting Terrance Robinson to a racially hostile work environment at the Broadway Lodge facility where he worked as a nurse's assistant. Nexion maintains that this Court's decision in Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001), precludes this claim as a matter of law because an employee who is employed by a facility housing mentally infirm, elderly residents cannot possibly establish that harassment by a resident is objectively severe or pervasive so as to violate Title VII. The district court agreed and granted summary judgment for Nexion. See RE, Tab 3 at 8 (Cain holds 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"). In our opening brief, we argued that the district court erred in granting summary judgment to the Defendant because there is sufficient evidence to support a finding that the racial harassment suffered by Johnson was sufficiently severe or pervasive to violate Title VII, and that Nexion knew of the harassment and failed to take reasonable steps to alleviate it. We noted that it is undisputed that Johnson was repeatedly referred to as a "nigger" and subjected to numerous additional racist comments by Broadway Lodge resident Pete Patino. We argued that a jury could find the harassment objectively hostile based on the frequency and repugnant content of these comments, that they were made in a public setting in front of others, that Nexion intensified the hostility by failing to take corrective action, and because a reasonable person in Johnson's position would find the same atmosphere hostile and abusive. We further argued that because Johnson complained of Patino's slurs on many occasions to every authority figure at Broadway Lodge and testified that he was embarrassed and humiliated by the comments, and because he wished to be reassigned away from Patino, a jury could find the harassment subjectively hostile. We emphasized that the fact that Patino was an elderly, mentally impaired resident of the facility does not negate or lessen the severity or pervasiveness of the work environment to which Johnson was subjected and that Cain does not establish an exception to Title VII's protection in the nursing home context. We pointed out, in addition, that Cain can be distinguished factually from this case because (1) the harassment in Cain was not as egregious; (2) the harassment in Cain occurred in a private home without witnesses to the harassment, thus making it less humiliating and objectively hostile; and (3) Cain declined her employer's offer to reassign her, suggesting the harassment was not subjectively hostile or abusive. We also argued that the fact that Johnson understood he would be caring for elderly, impaired residents of Broadway Lodge is one factor a court may consider, but does not constitute a bar to his racial harassment claim as a matter of law. Additionally, we stressed that Nexion is liable for subjecting Johnson to a hostile work environment because it knew of the harassment and took no steps to address the harassment although it easily could have alleviated it. In its brief as Appellee, Nexion misstates and distorts the legal principles applicable to this case, suggesting incorrectly that a dispute over an "essential" fact will not defeat a motion for summary judgment and that only "extreme conduct" is actionable under Title VII, and wrongly maintains that to withstand summary judgment, the Commission has the burden of establishing as a matter of law that the harassment here was sufficiently severe or pervasive. See Def. Br. at 15-16, 17, 27. Additionally, Nexion overstates the holding and implications of Cain, and then misrepresents the Commission's analysis of the case. In addressing the circumstances surrounding Johnson's termination as well as other factual disputes, Nexion overlooks the fact that, in considering the company's motion for summary judgment, the district court and this Court are required to resolve any factual disputes in favor of the Commission, the non-moving party. Instead, Nexion presents its version of disputed facts as true and ignores contrary evidence, not to mention the fact that, as the moving party, Nexion has the burden to show as a matter of law that there is no genuine issue of material fact requiring submission to a jury. In this reply we explain that the considerable evidence in this case, when viewed under the proper legal standards, including a proper understanding of Cain, is sufficient to support a finding that the company violated Title VII by subjecting Johnson to a racially hostile work environment. Argument 1. Throughout its brief, Nexion offers responses to the Commission's brief that reveal a misunderstanding of the parties' respective burdens, given that this is an appeal from a grant of summary judgment, as well as the substantive controlling legal standards. Nexion asserts that "[t]he bare existence of a dispute over some essential fact will not defeat a properly supported motion." Def. Br. at 15-16 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). This is not what Anderson says, nor is it a correct statement of the law. Instead, Anderson states that the standard for summary judgment under Fed. R. Civ. P 56(c) "provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." 477 U.S. at 247-48 (emphasis original). The case explains that material facts are those that affect the outcome of the suit under the governing law, as distinguished from "irrelevant or unnecessary" factual disputes. Id. at 248. Thus "a dispute over some essential fact" would clearly be enough to defeat a motion for summary judgment. As we argued in our opening brief and explain below, whether the atmosphere to which Johnson was subjected was sufficiently severe or pervasive to violate Title VII and whether Nexion is liable for subjecting him to such an environment by failing to take any remedial action are two of a number of genuine issues of material fact precluding summary judgment in this case. Moreover, Nexion incorrectly places the burden on the Commission to establish as a matter of law that the harassment at issue was objectively severe or pervasive. See Def. Br. at 27 ("Appellants fail to make a sufficient showing of an objectively hostile work environment to establish harassment as a matter of law."). The Commission properly overcomes a motion for summary judgment if a reasonable jury could find the harassment at issue sufficiently severe or pervasive; it does not have the burden to establish this "as a matter of law." That is a question for the jury, and summary judgment is appropriate in this case only if no reasonable jury could find for the Commission. See Anderson, 477 U.S. at 249 ("If the evidence is such that a reasonable jury could return a verdict for the non- moving party, there is a genuine issue of material fact."). And in reviewing an appeal from the grant of summary judgment, this Court must consider factual questions "with deference to the nonmovant. Thus, if a fact question is dispositive of a motion for summary judgment, ‘we must review the facts drawing all inferences most favorable to the party opposing the motion.'" Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000). Illustrating its lack of familiarity with the controlling substantive law, Nexion maintains that "[o]nly extreme conduct amounting to a material change in the terms and conditions of employment is actionable." Def. Br. at 17 (citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). That is not an accurate statement of the law neither as stated by Ramsey nor by controlling cases in this circuit or the Supreme Court. As we argued in our opening brief, harassment that is sufficiently severe or pervasive to violate Title VII affects a term, condition or privilege of employment. See EEOC Br. at 29 (citing Supreme Court cases); see also Ramsey, 286 F.3d at 268 ("For harassment on the basis of race to affect a term, condition, or privilege of employment . . . it must be ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'") (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). There is no additional requirement that the conduct in question be "extreme." 2. In the Commission's opening brief, we argued that this Court's decision in Cain does not establish a general rule barring hostile work environment claims where the harasser is an impaired individual receiving nursing care. Rather, Cain merely concluded under the circumstances of that case that the plaintiff, a nurse assigned to care for a patient suffering from Alzheimer's and Parkinson diseases who propositioned her for sex in his home, failed to establish a prima facie case of hostile work environment because the behavior complained of was not sufficiently severe or pervasive where the harasser was an elderly and impaired individual. See EEOC Br. at 22. Nexion overstates Cain's holding to preclude "as a matter of law" that "the commentary of [an employer's] mentally impaired residents" is insufficient to establish a racial harassment claim. Def. Br. at 12. Nexion cites no language from Cain that supports such a reading of the case.<1> Instead, as we argued in our opening brief, Cain does not establish or purport to establish a general rule barring hostile work environment claims whenever the harasser is an impaired patient receiving nursing care. Instead, this Court decided Cain based on the unique facts of the case. See EEOC Br. at 22 (quoting language from Cain that "in this context" and "given the circumstances," the plaintiff could not offer sufficient evidence of a hostile work environment). Accordingly, Cain does not preclude relief in this case. If Nexion's interpretation was truly Cain's holding, it would give employers carte blanche to subject their employees to harassing environments. Such a holding would also be contrary to Title VII, which does not carve out an exception for companies running nursing care businesses, as well as the Supreme Court's hostile work environment decisions setting out the factors to be considered in determining whether a work environment is severe or pervasive enough to be actionable. See, e.g., Harris, 510 U.S. at 21. Nexion continues to maintain that the harassment in Cain occurred under "almost identical circumstances" to those presented here, thus precluding relief for Johnson. See Def. Br. at 17, 20. Nexion is mistaken. As we emphasized in our opening brief, Cain can be distinguished from this case in important ways. A key difference between the two cases is the public setting of the harassment encountered by Johnson—the harassment in Cain occurred in a private home without witnesses, unlike the public, more degrading quality of Patino's racial slurs.<2> See EEOC Br. at 26-27. The public nature of the harassment heightens both the objective and subjective severity of the behavior. Johnson testified that he was humiliated and embarrassed by the comments, and a jury could find that a reasonable person in Johnson's position would feel the same way, particularly where coworkers found the slurs amusing and Nexion failed to take any action to address it. See EEOC Br. at 26; see also Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (holding conduct complained of intolerably altered the plaintiff's work environment where the harasser made repeated offensive comments in front of others). Nexion also misrepresents the facts of Cain when it states, without citation to the case, that the Cain Court "clearly referenced the fact that Cain worked along side other employees." Def. Br. at 23. The decision notes that Cain worked in a private home for one individual on a twelve-hour shift, but nowhere indicates that there were any witnesses to the resident's harassing comments. See Cain, 246 F.3d at 759. Moreover, the nature of the harassment suffered by Johnson is categorically different than the requests for sexual favors at issue in Cain. See EEOC Br. at 25. Again, the "improper requests and tasteless remarks" at issue in Cain (see Def. Br. at 23), while certainly inappropriate, are not comparable to repeatedly being called a "nigger" or referred to as a rapist, murderer, and thief because of one's race. See EEOC Br. at 25-26. Finally, the fact that Cain refused reassignment is a critical difference between the two cases, and suggests that the atmosphere was not subjectively hostile because Cain did not feel the need to be transferred away from the harasser. This starkly contrasts with Johnson's situation, in which he wanted to be moved away from Patino because he found his working conditions intolerable. See EEOC Br. at 27. Contrary to Nexion's assertion, the Commission does not argue that the Eighth Circuit's decision in Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997) and the Tenth Circuit's decision in Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001) serve "as authority superseding the ruling by the Fifth Circuit in Cain." Def. Br. at 25. Clearly this contention by Nexion is borne out of its misunderstanding that Cain establishes a blanket bar to claims such as Johnson's. In any event, we offered these cases for their persuasive value and in support of several propositions: (1) that courts take into consideration caretakers' reasonable expectations given their choice of employment as one of many factors to be examined when assessing allegations of hostile work environment involving patients in nursing homes (see EEOC Br. at 24, 33); (2) that the intent of the harasser is not relevant and the key inquiry is the effect of the conduct (see EEOC Br. at 29); and (3) that courts look at the promptness and effectiveness of remedial action given the employer's control over the facility (EEOC Br. at 32-34). Courts regularly look to the analyses and guidance of sister courts when deciding cases and both cases were cited appropriately in making these relevant points. 3. Nexion argues that the Commission ignores the requirement that harassment be objectively as well subjectively severe or pervasive. See Def. Br. at 21, 24, 30. As we argued in our opening brief (see EEOC Br. at 19-22), a reasonable jury could find the work environment to which Johnson was subjected both objectively and subjectively hostile. Nexion argues that the Commission failed to offer sufficient evidence that the harassment at issue is sufficiently objectively hostile to violate Title VII. This argument cannot be squared with Supreme Court and Fifth Circuit precedent. An objectively hostile or abusive environment is one that a reasonable person would find hostile or abusive considering the totality of the circumstances. See Harris, 510 U.S. at 21-22; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (Title VII is violated where the work environment was objectively hostile, i.e., hostile to "a reasonable person in the plaintiff's position"); Ramsey, 286 F.3d at 268 ("For a hostile work environment to be deemed sufficiently hostile, all of the circumstances must be taken into consideration."). Factors considered include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 523 U.S. at 17; Walker, 214 F.3d at 625 (quoting Harris). As we noted in our opening brief, Johnson testified that Patino referred to him as "nigger" or "fucking nigger" "constantly" and directed numerous additional racial insults toward him over a period of approximately eight months. Johnson testified that Patino's comments became more frequent as time went on and that it reached a point where every time Patino saw Johnson, he called him a "nigger" and stated that he did not want Johnson around him. See EEOC Br. at 4 (citing record). Charge Nurse Haskins confirmed that Patino's use of racial slurs toward Johnson intensified over time. Id. The company's disregard for Johnson's suffering also increased the severity of the environment, objectively and subjectively. Cf. Brooks v. City of San Mateo, 229 F.3d 917, 924 n.4 (9th Cir. 2000) (A case in which there is a series of harassing incidents about which the employer knows about and does nothing to correct presents circumstances "in which the non-action by the employer can fairly be characterized as acquiescence, i.e., having changed the terms and conditions of employment to include putting up with harassment from other employees"). Nexion takes issue with the Commission's suggestion that being subjected repeatedly to being called "nigger" "should be deemed in and of itself objectively sever [sic] enough so as to be actionable." Def. Br. at 22. The critical question is whether a reasonable person in these circumstances would find the work environment hostile and abusive. It is difficult to imagine that anyone in Johnson's situation would find such a workplace anything but hostile and offensive. As many courts have pointed out, the term "nigger" is a particularly harsh and loaded racial slur. See EEOC Br. at 21-22, 25-26 (citing cases). As the Seventh Circuit has explained, "[g]iven 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." Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (emphasis added). Additionally, that Patino directed racial slurs at Johnson in front of coworkers—some of whom laughed— in the common areas of the Broadway Lodge facility intensified the sting of the harassment, as Johnson testified. See EEOC Br. at 21. In Walker, this Court held that the plaintiffs raised a genuine issue of material fact on their hostile work environment claim. Rejecting the district court's conclusion the racist comments were "simply truly offensive," the court of appeals determined the fact that the plaintiffs were subjected to conversations in which a coworker and supervisor used the word "nigger," as well as other racist comments, created a factual issue with respect to whether the racial insults were sufficiently severe or pervasive to alter the conditions of employment and create a hostile work environment. See 214 F.3d at 626. Similarly, the record in this case supports a finding that the harassment at issue was frequent, severe, humiliating, and unreasonably interfered with Johnson's work and thus precludes summary judgment. All these criteria go to the objective, as well as subjective, offensiveness of the behavior. Contrary to Nexion's assertion, the Commission never argued that the fact that Johnson knew he would be caring for elderly, impaired residents is of "no relevance." Def. Br. at 24. Instead, the Commission argued that such a consideration should not constitute a waiver of an employee's statutory right to be free from racial harassment. EEOC Br. at 23-24. Our argument is that this "assumption of risk" approach advocated by Nexion and the district court would leave employees in the nursing care profession totally unprotected from harassment in contexts such as this and is not consistent with the Supreme Court's directive that courts must consider "all the circumstances" in evaluating whether the harassment is hostile or abusive. Harris, 510 U.S. at 23; see also Oncale, 523 U.S. at 81 ("[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.'"). Nexion ignores the evidence that the environment was sufficiently severe or pervasive to violate Title VII and argues that Johnson's knowledge that he would be working with "difficult" residents nullifies this evidence. It is Nexion who "misstate[s] the breath [sic] of the district court's ruling" (Def. Br. at 24) in arguing that the court considered the proper factors in evaluating whether the harassment was sufficiently severe or pervasive. Although Nexion interprets the district court's ruling as considering other factors in addition to the "assumption of risk," argument, it is undisputed that the district court failed to address the prevalence of racial slurs, the fact that Patino used the malicious term "nigger" as well as other extremely offensive comments, and the fact that these slurs were directed at Johnson in front of others, some who laughed at them. The district court made no reference to the factors delineated in Harris for determining whether harassment is sufficiently severe or pervasive enough to violate Title VII. It cannot reasonably be disputed that the court's sole focus was on the fact that the harasser was elderly and impaired and Johnson knew he would be caring for elderly and impaired patients. This was error. Cf. Oncale, 523 U.S. at 80 (Title VII prohibits "discrimina[tion] . . . because of . . . [race] in the ‘terms' or ‘conditions' of employment. Our holding that this includes [racial] harassment must extend to [racial] harassment of any kind that meets the statutory requirements."). There is no justification in the statutory language for a categorical rule excluding harassment claims from the coverage of Title VII where the harasser is a recipient of an employer's nursing care. 4. Nexion also asserts that labeling Patino's behavior as harassment actionable under Title VII would prevent Nexion from hiring a workforce made up of any member of a protected class, and Congress could not have intended "such an absurd result." Def. Br. at 19. It is this argument that is absurd. First, everyone is a member of some protected class. Second, it is ridiculous to suggest that recognizing a viable claim in this case would mean that all employees in the nursing industry would have a claim for harassment. Third, to conclude there is no claim on the basis of Nexion's argument and the district court's reasoning would leave such employees without any protection under the statute. If Congress had wanted to carve out an exception for nursing and elder care facilities such as Broadway Lodge, it could have done so. 5. In our opening brief, we argued that Nexion is liable for subjecting Johnson to a racially hostile work environment because it knew of the harassment and took no steps to address or end it. See EEOC Br. at 31-36. We specifically argued that "[w]hether 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." EEOC Br. at 33; see also id. at 36 ("Whether Nexion could control Patino is not the correct standard for assessing the company's liability . . . . It is Nexion's failure to control its workplace that serves as the basis for liability." (emphasis added). Curiously, Nexion responds that "the court did not need to reach the issue of whether remedial action was available . . . in the form of controlling the resident's behavior" because the Commission failed to show the conduct was objectively severe. Def. Br. at 28. This, of course, misses the point. The Commission does not argue that Nexion should have controlled Patino's conduct, either as a question of liability or relief. Rather, it is Nexion's failure to remove Johnson from the harassing environment by, for example, assigning him to a different section of the facility, which we argue is relevant to determining the company's liability for the hostile environment. Nexion fails to respond to this argument. Nexion does claim, without any evidence or citation to the record, that moving Johnson elsewhere in the facility "is clearly not viable." Id at 29. This assertion is directly contradicted by testimony given by several of Nexion's supervisors at Broadway Lodge that they had the authority and ability to move Johnson away from Patino. See EEOC Br. at 11 (citing record). Furthermore, Nexion expelled Patino from the Broadway Lodge facility for making verbal and physical threats toward staff and others soon after Johnson was terminated, see EEOC Br. at 12 (citing record), thus undermining Nexion's claim that certain unidentified state and federal law prevented the company from taking appropriate corrective action. See Def. Br. at 7, 29. Nexion conveniently ignores this evidence. Because the evidence supports a finding that the harassment at issue was sufficiently severe or pervasive to violate Title VII and that Nexion did not act reasonably in failing to take any action to alleviate the harassment to which Johnson was subjected, summary judgment was improper. CONCLUSION For the foregoing reasons, the district court's order granting summary judgment to Nexion 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 4,295 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: June 23, 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 23rd day of June, 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> Even Nexion seems to acknowledge that whether a work environment is severe or pervasive enough to be actionable is a question of fact when it discusses factual differences between the case at bar and the Eighth Circuit’s decision in Crist v. Focus Homes, Inc., 122 F.3d 1107 (8th Cir. 1997) and the Tenth Circuit’s decision in Turnbull v. Topeka State Hosp., 255 F.3d 1238 (10th Cir. 2001). See Def. Br. at 26. <2> Contrary to Nexion’s unsupported assertion, this is not a new argument. Citing only the proposition that novel arguments cannot be offered for the first time on appeal, Nexion erroneously asserts that the Commission has waived drawing this distinction between this case and Cain because it was not highlighted in the district court. See Def. Br. at 22 n.3. The Commission argued in district court that Cain is factually different. Emphasizing the public nature of the harassment in this case as contrasted with the private harassment in Cain hardly presents the sort of new theory or argument that appellate courts are reluctant to consider in the first instance on appeal.