06-3446-cv IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________________________________________ ELEANORA M. PATANE, Plaintiff-Appellant, v. JOHN RICHARD CLARK, HARRY B. EVANS, DAVID STUHR, GEORGINA ARENDACS, and FORDHAM UNIVERSITY, Defendants-Appellees. ___________________________________________________________ On Appeal from the U.S. District Court for the Southern District of New York, Hon. William C. Conner ___________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PATANE AND IN FAVOR OF REVERSAL ____________________________________________________________ RONALD S. COOPER GAIL S. COLEMAN General Counsel Attorney U.S. EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, NW, Room 7034 CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . .1 Statement of the Case. . . . . . . . . . . . . . . . . . . .2 A. Statement of Facts. . . . . . . . . . . . . . . . . . 2 B. District Court Decision. . . . . . . . . . . . . . . .5 Argument . . . . . . . . . . . . . . . . . . . . . . . . . .6 The district court erred in dismissing Patane's complaint for failure to state a claim. . . . . . . . . . . . . . . .6 A.Standard of Review. . . . . . . . . . . . . . . . . . 6 B.Accepting all of Patane's allegations as true, a reasonable jury could find that Patane experienced a hostile work environment based on the presence of pornography in her workplace and her exposure to sexually questionable conduct between her supervisor and his pre-teen daughter. . . . . . . . . . . . . . . . . .8 C.Accepting all of Patane's allegations as true, a reasonable jury could find that the defendants illegally retaliated against Patane for complaining about sexual conduct in her workplace where they took away her job responsibilities and treated her poorly with the specific intent of causing her to quit her job.. . . . 14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance Anti-Virus Certification Form Certificate of Service TABLE OF AUTHORITIES Page Cases Abeita v. TransAm. Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . . . . . . . . . . . . . 9-10 Burlington N. & Santa Fe Ry. v. White, ___U.S. ___, 126 S. Ct. 2405 (2006). . . . . . . . . . 15, 16 Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000).9, 10 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . . . . 12 Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998). . . .13-14 Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199 (2d Cir. 2006). . . . . . . . . . . . . . . . 15 Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006) 15 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004). . 11 Phillips v. Girdich, 408 F.3d 124 (2d Cir. 2005) . . . .7, 17 Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426 (2d Cir. 1999). . . . . . . . . . . . . . .14-15 Rothman v. Gregor, 220 F.3d 81 (2d Cir. 2000). . . . . . 2, 6 Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . 11, 13, 14 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . . . 6, 7 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997). . . . . . 8, 9 Page Walker v. City of N.Y., 974 F.2d 293 (2d Cir. 1992). .6-7, 14 Whidbee v. Garzarelli Food Specialties, Inc., 233 F.3d 62 (2d Cir. 2000) . . . . . . . . . . . . . . .12-13 Wolak v. Spucci, 217 F.3d 157 (2d Cir. 2000) . . . . . .11-12 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . .1 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . .1 Miscellaneous Kelly Cahill Timmons, Sexual Harassment and Disparate Impact: Should Non-Targeted Workplace Sexual Conduct Be Actionable Under Title VII?, 81 Neb. L. Rev. 1152 (2003)12 Rebecca L. Eisenberg, Note, Pornography, Equality, and a Discrimination-Free Workplace: A Comparative Perspective, 106 Harv. L. Rev. 1075 (Mar. 1993) . . . . . . . . . . . . 12 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises an important and recurring issue in Title VII harassment cases involving the degree to which conduct must be offensive to create an illegal hostile work environment. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES 1. Could a reasonable jury find that Patane's workplace had become uncomfortably sexualized in a manner that reasonably caused her to find the conditions of her employment altered for the worse? 2. Could a reasonable jury find that the defendants illegally retaliated against Patane for complaining about the sexualization of her workplace where they took away her job responsibilities with the specific intent of causing her to quit her job? STATEMENT OF THE CASE A. Statement of Facts Eleanora Patane began working in 1988 as an executive secretary in Fordham University's Classics Department. (R.1, Complaint ¶ 9.) One of her supervisors was John Clark, a professor in the Classics Department who was also, at various times during her tenure, the department chair. (Id. ¶¶ 4, 9, 12, 15.) Patane complains of finding hard core pornographic websites which had been viewed on her computer. (Id. ¶ 14.) She believes that Clark used her computer to view these sites during weekend trips to the office. (Id.) After discovering the sites, she obtained a password to protect her computer and had all offensive materials deleted. (Id.) Patane also alleges that beginning in 1999-2000, Clark began to spend one to two hours every day viewing hard core pornographic/sadomasochistic videotapes on a TV-VCR in his office. (Id. ¶¶ 12, 16, 21.) During those times, she alleges, Clark would leave his office approximately every twenty minutes and rush past her with his face flushed on his way to the men's room for the apparent purpose of masturbating. (Id. ¶ 12.) Patane was aware of what Clark was doing in his office because the flickering from his TV screen was visible through his glass partition. (R.10, Rosenthal Decl. Ex. B, Grievance at 2.) Also, Patane once knocked on his door to announce a visitor, and when Clark unlocked the door Patane saw numerous pornographic videos scattered on the floor next to his chair. (Id. at 2-3.) According to Patane, Clark regularly had pornographic videotapes shipped to the office, and he kept 36 of them there. (R.1, Complaint ¶¶ 13, 18.) As his secretary, Patane was responsible for putting the videotapes, as well as catalogues for the tapes, into Clark's mailbox. (R.10, Rosenthal Decl. Ex. B, Grievance at 3.) Additionally, Patane alleges that Clark exposed her to an apparently sexually charged relationship between himself and his pre-teen daughter. She says that "on many occasions" in 1998 he brought his then nine or ten year old daughter into the department offices, where she would sit straddling one of his legs and rubbing her groin back and forth in front of staff. (R.1, Complaint ¶ 10.) She also alleges that when Clark brought his daughter to the office in the winter of 2003, she saw his daughter shove her hand deep into the front pocket of Clark's pants and apparently grope him. (Id. ¶ 17.) Patane alleges that she complained repeatedly to Fordham's EEO office about Clark's "obscene and offensive conduct," but says that Fordham took no action. (Id. ¶¶ 13, 18-24.) She claims that Clark was aware of her complaints. (Id. ¶ 15.) According to Patane, Clark retaliated against her for speaking out. Specifically, she alleges that Clark removed virtually all of her secretarial functions, kept her entirely out of the departmental information "loop," refused to speak to her, and communicated with her only by e-mail. (Id.) She alleges that Classics Department professor Harry Evans encouraged Clark in this behavior, telling him, "Don't give her any more work, this will make her leave." (Id.) She also alleges that Clark encouraged a graduate student/teaching assistant to treat Patane disrespectfully and that, with Clark's support, this graduate student addressed Patane as "Bitch." (Id. ¶ 21; R.10, Rosenthal Decl. Ex. B, Grievance at 1-2.) When Professor Evans became chair of the Classics Department in fall 2004, Patane alleges, Evans continued Clark's retaliation by disciplining Patane but not others for an incorrect time sheet, by constantly monitoring her whereabouts, by picking up her telephone, and by issuing a materially false negative performance evaluation. (R.1, Complaint ¶¶ 25- 27.) Although the performance evaluation gives Patane the highest possible score in four of five categories, it gives her a lower mark for "attitude and enthusiasm" and contains additional comments calling her "a difficult person to work with," criticizing her for being "hostile to my predecessor as Chair," and noting that "within a small department, such behavior adversely affects efficiency and morale." (R.10, Rosenthal Decl. Ex. E, Employee Appraisal at 1-2.) Patane sued Fordham and several individuals under Title VII and various state laws. (R.1, Complaint.) The defendants moved to dismiss on several grounds including lack of subject matter jurisdiction and failure to state a claim for which relief could be granted. (R.8, Motion.) B. District Court Decision The district court granted the motion to dismiss. (R.16, Opinion.) With respect to Patane's hostile work environment claim, the court said, "Plaintiff primarily alleges that Clark received pornographic material at the office, viewed these tapes during the day and rushed past her to the men's room ‘with his face flushed' approximately every twenty minutes. Plaintiff also alleges several incidents involving Clark and his daughter. However, such behavior, without more, does not rise to the level of a hostile work environment." (R.16, Slip Op. at 13.) While expressing some sympathy for Patane, the court added, "plaintiff never saw the videos, witnessed Clark watch the videos, or witnessed Clark performing sexual acts." (Id. at 14.) The court also dismissed Patane's retaliation claim. (Id. at 15.) In the court's view, none of the actions about which Patane complained were sufficiently adverse to constitute retaliation. (Id.) With respect to Patane's allegations of diminished secretarial functions, the court ruled against Patane because the complaint "d[id] not specify the severity or degree." (Id.) ARGUMENT The district court erred in dismissing Patane's complaint for failure to state a claim. A. Standard of Review The dismissal of a complaint for failure to state a claim is reviewed de novo. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000). All factual allegations in the complaint must be accepted as true, and the reviewing court must draw all reasonable inferences in favor of the plaintiff. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002); Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992). A complaint should be dismissed for failure to state a claim "only if, after viewing plaintiff's allegations in this favorable light, ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker, 974 F.2d at 298 (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991)). In assessing the sufficiency of a complaint, the court must be mindful that under the Federal Rules of Civil Procedure, "a ‘short and plain' complaint is sufficient as long as it puts the defendant on notice of the claims against it." Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir. 2005); see also Swierkiewicz, 534 U.S. at 512 ("simplified notice pleading standard" applies to complaint of employment discrimination). This Court has noted that "the Rules . . . rely on extensive discovery to flesh out the claims and issues in dispute." Phillips, 408 F.3d at 127. For this reason, the Court has cautioned that "all complaints must be read liberally" and "dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory." Id. at 128 (emphasis in original). The Court has also noted that "the Rules do not require a plaintiff to plead the legal theory, facts, or elements underlying his claim." Id. at 130. B. Accepting all of Patane's allegations as true, a reasonable jury could find that Patane experienced a hostile work environment based on the presence of pornography in her workplace and her exposure to sexually questionable conduct between her supervisor and his pre-teen daughter. The district court erred in concluding that Patane can prove no set of facts to support her allegation of a hostile work environment. Accepting all of Patane's factual allegations as true, and making all reasonable inferences in her favor, a jury could find that her workplace had become sexually charged in a manner that reasonably caused Patane to find the conditions of her employment altered for the worse. See Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997). Some of the conduct about which Patane complains was directed specifically at her. She alleges that she found hard core pornographic images that somebody had viewed on her workplace computer. (R.1, Complaint ¶ 14.) She also alleges that she regularly discovered pornographic videotapes and/or catalogues when she opened the mail and that she was required to place these in her supervisor's mailbox. (R.10, Rosenthal Decl. Ex. B, Grievance at 3.) A jury could reasonably find that Clark had these materials sent to the office, rather than to a P.O. box, because he wanted Patane to see them. Whether or not these instances, standing alone, would be enough to establish a hostile work environment, Patane's awareness of other conduct gives added weight to her claim. As this Court has noted, even if a plaintiff was not present or was not the target of some of a supervisor's offensive conduct, "a jury plausibly could find that his persistently offensive conduct created an overall ‘hostile or abusive environment' which exacerbated the effect of the harassment [she] experienced individually." Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000); see also Torres, 116 F.3d at 633 ("The fact that many of Coe's statements were not made in Torres' presence is, in this case, of no matter; an employee who knows that her boss is saying things of this sort behind her back may reasonably find her working environment hostile."). A jury could find that Clark's daily viewing of pornographic videotapes created an overall hostile environment which magnified the effect on Patane of finding pornography on her computer and in the mail which she opened as part of her job. Patane alleges that Clark watched these videotapes for one to two hours every day over the course of years. (R.1, Complaint ¶¶ 12, 16, 21.) His conduct, therefore, was "commonplace, ongoing, and continual," rendering it "pervasive" for purposes of sexual harassment law. See Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998); see also Cruz, 202 F.3d at 570 (to demonstrate pervasiveness, plaintiff must show that "a series of incidents were ‘sufficiently continuous and concerted' to have altered the conditions of her working environment") (citation omitted). Patane further alleges that when Clark watched the tapes, approximately every twenty minutes he would leave his office with his face flushed and rush past her desk on his way to the men's room, apparently for the purpose of masturbating. (R.1, Complaint ¶ 12.) Discovery may reveal that Clark did not rush to the restroom every twenty minutes when he was not watching the tapes. If so, a reasonable jury could infer that Patane's assumption about Clark's activity in the restroom was correct. Accordingly, a jury could find not only that Patane was required to work on the other side of a door behind which her supervisor watched pornography for one to two hours every day, but that her supervisor forced Patane to contemplate his own sexual arousal and gratification by rushing past her to the men's room to masturbate instead of satisfying himself privately in his own office. Assuming, again, that Patane's allegations are true, Clark further imposed his own sexual proclivities upon her by repeatedly engaging in questionable contact with his pre-teen daughter in front of Patane. Patane alleges that "on many occasions" in 1998, Clark brought his then nine or ten year old daughter into the department offices, where she would sit straddling his legs and rubbing her groin back and forth in front of staff including Patane. (R.1, Complaint ¶ 10.) She also alleges that when Clark brought his daughter to work in the winter of 2003, she saw his daughter reach deep into the front pocket of his pants and apparently grope him. (Id. ¶ 17.) As a witness to these incidents, Patane would be forced to contemplate the nature of Clark's sexual activities. Patane alleges that she repeatedly complained about Clark's behavior, but that Fordham took no action. As this Court has observed, "[i]t seems reasonable to view unpunished misconduct as being more harmful or harassing than punished misconduct." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 607 n.7 (2d Cir. 2006). This Court has recognized that sexually charged conduct in the workplace may create a hostile environment for women. See Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir. 2004) (rejecting defendant's argument that "the common exposure of male and female workers to sexually offensive material necessarily precludes a woman from relying on such evidence to establish a hostile work environment based on sex"); Wolak v. Spucci, 217 F.3d 157, 160-61 (2d Cir. 2000) ("Even if a woman's out-of-work sexual experiences were such that she could perhaps be expected to suffer less harm from viewing run-of-the-mill pornographic images displayed in the office, pornography might still alter her status in the workplace, causing injury, regardless of the trauma inflicted by the pornographic images alone."); see also Ellison v. Brady, 924 F.2d 872, 879 n.9 (9th Cir. 1991) ("‘Because of the inequality and coercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or in a setting of ostensible equality can be an anguishing experience.'") (citation omitted). Legal commentators have likewise noted that the existence of pornography in the workplace hurts women's efforts to be seen as serious workers. Kelly Cahill Timmons, Sexual Harassment and Disparate Impact: Should Non-Targeted Workplace Sexual Conduct Be Actionable Under Title VII?, 81 Neb. L. Rev. 1152, 1216 (2003); Rebecca L. Eisenberg, Note, Pornography, Equality, and a Discrimination-Free Workplace: A Comparative Perspective, 106 Harv. L. Rev. 1075, 1086 (Mar. 1993). To the extent that the district court may have been comparing the facts of this case to the even more appalling facts of other cases, that comparison was erroneous. As this Court has explained, "‘the appalling conduct alleged in prior cases should not be taken to mark the boundary of what is actionable.'" Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (citation omitted). "The test," the Court said, "is whether ‘the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" Id. at 70 (citation omitted; emphasis in Whidbee). A jury could conclude that a reasonable employee faced with Patane's circumstances would, indeed, find the conditions of her employment so altered. As this Court has cautioned, the decision about whether events are sufficiently severe or offensive to create a hostile work environment is one that should be made by a jury, not by a judge. "‘An Article III judge is not a hierophant of social graces,'" the Court has explained, "and is generally in no better position than a jury to determine when ‘conduct cross[es] the line between boorish and inappropriate behavior and actionable sexual harassment.'" Schiano, 445 F.3d at 605 (citation omitted). Recognizing the value of having "a cross-section of our heterogenous communities" determine the line between actionable and unactionable conduct, the Court has called the jury "the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment." Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998), abrogated in other part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Even if a judge could successfully define general cultural standards, "such an effort . . . would produce questionable legal definitions for the workplace where recognition of employees' dignity might require standards higher than those of the street." Id. The importance of sending hostile environment cases to the jury applies with even greater force here than it did in Schiano and Gallagher. In those cases, the Court reversed district court awards of summary judgment which had been made following discovery and the development of a complete record. Here, in contrast, the district court has concluded strictly from looking at her complaint that Patane can develop no set of facts to establish her claim of a hostile environment. See Walker, 974 F.2d at 298 (describing standard for dismissal of a complaint for failure to state a claim). Discovery may prove the district court wrong. For this reason, Patane should be given an opportunity to develop her case. C. Accepting all of Patane's allegations as true, a reasonable jury could find that the defendants illegally retaliated against Patane for complaining about sexual conduct in her workplace where they took away her job responsibilities and treated her poorly with the specific intent of causing her to quit her job. The district court erred in concluding that Patane can prove no set of facts to support her allegation of retaliation. The district court relied on case law holding that retaliation was only actionable under Title VII if it caused "a materially adverse change in the terms and conditions of employment." Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 446 (2d Cir. 1999), opinion cited in Slip Op. at 14-15. The day after the district court issued its opinion, however, the Supreme Court ruled that Title VII's anti-retaliation provision was broader in scope than this Court had previously believed. Burlington N. & Santa Fe Ry. v. White, ___ U.S. ___, 126 S. Ct. 2405 (2006); see also Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199 (2d Cir. 2006) (recognizing change in the law); Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006) (same). In Burlington Northern, the Supreme Court held that the anti- retaliation provision prohibits any employer action that "could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N., 126 S. Ct. at 2409. The Court explained that the provision "seeks to prevent employer interference with ‘unfettered access' to Title VII's remedial mechanisms." Id. at 2415 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Thus, any retaliatory action which is likely "‘to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers" is illegal. Id. The retaliatory actions of which Patane complains were designed not only to deter complaints of discrimination, but also to eliminate her from the workplace. Patane alleges that after learning that she had complained about his conduct, Clark encouraged a graduate student to address Patane as "Bitch," removed virtually all of her secretarial functions, kept her entirely out of the departmental information "loop," refused to speak to her, and communicated with her only by e-mail. (R.1, Complaint ¶¶ 15, 21; R.10, Rosenthal Decl. Ex. B, Grievance at 1-2.) She reports that Classics Department professor Harry Evans encouraged Clark not to give her more work because "this will make her leave." (Id.) She further alleges that when Evans became department chair, he took additional retaliatory actions against Patane, including disciplining her but not others for an incorrect time sheet, constantly monitoring her whereabouts, picking up her telephone, and issuing a performance evaluation which criticized her "attitude and enthusiasm" while noting that she was "hostile to my predecessor as Chair." (Id. ¶¶ 25-27; R.10, Rosenthal Decl. Ex. E, Employee Appraisal at 1-2.) Taking Patane's allegations as true, the defendants acted for the specific purpose of driving her out. The fact that their actions were unsuccessful in making her quit does not diminish the retaliatory animus which drove them to try. Given their stated determination to get rid of Patane, it would be disingenuous for the defendants now to claim that their actions were immaterial. See Burlington N., 126 S. Ct. at 2416 (court must focus on the materiality of the challenged action). Surely, any employee would think twice about complaining of discrimination if she knew that the result would be a concerted effort by her employer to make her leave her job. The district court erred by faulting Patane for not specifying the "severity or degree" of her reduced job responsibilities. (Slip Op. at 15.) The notice pleading rules "do not require a plaintiff to plead the . . . facts . . . underlying his claim." Phillips, 408 F.3d at 130. Moreover, Patane clearly alleged that the defendants were trying to make her quit her job. (R.1, Complaint ¶ 15.) Her complaint, therefore, adequately states a claim of retaliation under Title VII. CONCLUSION The Federal Rules of Civil Procedure allow a plaintiff to file a "short and plain" complaint that puts the defendant on notice of the claims against it. Patane's complaint meets this standard. The district court erred in holding that Patane can prove no set of facts that would entitle her to relief. Accordingly, this Court should reverse and remand for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel _____________________________ GAIL S. COLEMAN VINCENT J. BLACKWOOD Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORLTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Assistant General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, and Rule 32(a) of the Second Circuit Rules, I certify that this brief was prepared with Microsoft Office Word 2003 and that it uses Times New Roman type, size 14 point. I further certify that this brief contains 3642 words, from the Statement of Interest through the Conclusion and signature block, as determined by the Microsoft Office Word 2003 word- count function. _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7032 Washington, DC 20507 (202) 663-4055 ANTI-VIRUS CERTIFICATION FORM (Second Circuit Local Rule 32(a)(1)(E)) CASE NAME: Patane v. Clark DOCKET NUMBER: 06-3446-cv I, Gail S. Coleman, certify that I have scanned for viruses the PDF version of the Amicus Brief that was submitted in this case as an e-mail attachment to briefs@ca2.uscourts.gov and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 9.0.3.1000, Version 11/7/2006 rev. 19. _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7032 Washington, DC 20507 (202) 663-4055 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one original and nine copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 22nd day of November, 2006. I also certify that I submitted the amicus brief in PDF format as an e-mail attachment to briefs@ca2.uscourts.gov, and that I e-mailed a copy of the PDF version to all parties. I further certify that I served two paper copies of the foregoing amicus brief this 22nd day of November, 2006, by first-class mail, postage pre-paid, to the following counsel of record: Drita Nicaj Lovett & Gould 222 Bloomingdale Rd. White Plains, NY 10605 Kevin James Harrington Harrington, Ocko & Monk, LLP 81 Main St., Suite 215 White Plains, NY 10601 _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7032 Washington, DC 20507 (202) 663-4055 *********************************************************************** <> <1> These facts are taken from the complaint (R.1) and from documents referenced within the complaint, including the grievance that Patane filed with her union representative (R.10, Rosenthal Decl. Ex. B, Grievance) and her employee appraisal form (R.10, Rosenthal Decl. Ex. E, Employee Appraisal). The defendants argued in their motion to dismiss that Patane’s grievance should be construed as part of the complaint. (R.10, Memo at 3.) Patane did not object to this characterization. (R.13, Memo.) Likewise, the defendants treated Patane’s employee appraisal form as part of the complaint. (R.10, Memo at 6.) Patane did not object to this characterization either. (R.13, Memo.) The parties were correct in treating Patane’s grievance and her employee appraisal form as part of her complaint. See Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (a complaint includes “documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.”).