03-7366 ______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________________________________________ LISA PETROSINO, Plaintiff-Appellant, v. BELL ATLANTIC, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Eastern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT LISA PETROSINO AND REVERSAL _________________________________________________________ ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE Proceedings Below . . . . . . . . . . . . . . . . . . . . .3 Statement of Facts. . . . . . . . . . . . . . . . . . . . .4 Decision Below. . . . . . . . . . . . . . . . . . . . . . 12 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT PETROSINO WAS SUBJECTED TO A HOSTILE WORKING ENVIRONMENT BECAUSE OF HER SEX.. . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 03-7366 _________________________ LISA PETROSINO, Plaintiff-Appellant, v. BELL ATLANTIC, Defendant-Appellee. ___________________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ____________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT LISA PETROSINO AND REVERSAL ___________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents important issues concerning the proper analysis of a Title VII claim that a plaintiff was subjected to a hostile work environment based on her sex. It also raises questions regarding the appropriate role of the district court in deciding whether alleged harassment is sufficiently severe or pervasive to survive a defendant's motion for summary judgment. Because resolution of these issues will affect the EEOC's enforcement of Title VII, the Commission offers its views to the Court in support of reversal. STATEMENT OF JURISDICTION The district court had jurisdiction over this action pursuant to 28 U.S.C. § 1331. The district court entered final judgment on March 27, 2003 (Special Appendix ("SPA") 24), resolving all claims as to all parties, and plaintiff filed a timely notice of appeal on April 11, 2003. II Joint Appendix ("J.A.") 1529. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether offensive conduct of a sexual nature may form part of the basis for a claim that an employee was subjected to a hostile work environment because of her sex in the absence of evidence that the specific conduct was motivated by the plaintiff's sex. 2. Whether a reasonable jury could find that the harassment of Lisa Petrosino was sufficiently severe or pervasive to constitute a sexually hostile work environment in violation of Title VII where there was evidence that she was subjected to continual graphic sexual comments and graffiti, some of which targeted her; repeated disparaging comments about women in general and about her as a woman specifically; and criticism and mistreatment by supervisors. STATEMENT OF THE CASE Proceedings Below This is an appeal from an order of the United States District Court for the Eastern District of New York dismissing this action brought under Title VII, the New York State Human Rights Law, and the New York City Administrative Code. The complaint alleges that the defendant violated Title VII and New York state and city anti-discrimination laws by subjecting the plaintiff to a sexually hostile work environment, failing to promote her because of her sex, and constructively discharging her. IJ.A.378-81 (Complaint at 30-33). The complaint also alleges a state law claim of intentional infliction of emotional distress. IJ.A.381 (Complaint at 33). The district court issued its order granting summary judgment to the defendant on March 20, 2003. SPA22-23. Judgment for the defendant was entered on March 27, 2003. SPA24. Plaintiff filed two motions for reconsideration on March 28, 2003. R. 70-71. On April 11, 2003, before the district court had ruled on her post-judgment motions, plaintiff filed a notice of appeal. IIJ.A.1529. After this Court ordered the appeal stayed pending resolution of the outstanding motions, the district court denied both of plaintiff's motions on June 24, 2003. SPA28, 37. Plaintiff filed an amended notice of appeal on July 10, 2003. IIJ.A.1531. Statement of Facts Lisa Petrosino was employed as an Installation and Repair ("I&R") Field Technician repairing and installing telephone systems for Verizon (formerly Bell Atlantic) customers in Staten Island, New York, from May 1990 to February 1999. IJ.A.387-88 (Petrosino Aff. ¶¶ 2 & 3). She was assigned to one of four "gangs" of technicians at her garage. IJ.A.289 (Petrosino 3/15/00 Dep. at 321). Each gang had one first line manager who directly supervised the technicians. Id. For most of her tenure, Petrosino was the only female technician in her garage or, for that matter, in any of Verizon's garages on Staten Island. IJ.A.388-89 (Petrosino Aff. ¶ 5). Petrosino's workplace was akin to "a men's locker room." IJ.A.391 (Petrosino Aff. ¶ 10). Plaintiff testified that "my co- workers and managers regularly, on a daily basis, used foul and disgusting language that included curse words as well as sexual language that was lewd and obscene and included talk of male and female private-parts as well as talk of sex, sexual intercourse and oral sex." IJ.A.389 (Petrosino Aff. ¶ 7). Technicians used terms like "suck my cock" and "he could go suck my dick" "all the time" in her presence. R.90 (Petrosino 3/30/00 Dep. at 509). One of plaintiff's coworkers "had a game going with another guy that, on a daily basis they would yell back and forth at each other the grossest stuff." IJ.A.308 (Petrosino 3/30/00 Dep. at 463). Petrosino offered the following examples: "Your wife couldn't answer the phone last night because my balls were on her chin"; "Your wife left her panties next to my bed after I fucked her all night long until she screamed"; "She was too busy sucking my dick to get to the phone"; "Your wife is in pain because I banged her all night." IJ.A.308-09 (Petrosino 3/30/00 Dep. at 463-64). Petrosino's managers also engaged in sexual banter. One manager commonly used crude language like "scumbag" and "cocksucker." IJ.A.400 (Petrosino Aff. ¶ 39); IJ.A.312, 313 (Petrosino 3/30/00 Dep. at 519, 524). A technician in Petrosino's gang testified that the supervisor told one of their coworkers, in Petrosino's presence, that if the coworker was not back on the job in 20 minutes, "‘I am going to fuck you in the ass so hard your eyes come out.'" R. 64 (Exh. 16 attached to Baranoff Aff.) (Lacey Dep. at 57-58). Petrosino also testified that he would say, "‘that guy can suck my cock before I do that for him'" "all the time." R.90 (Petrosino 3/30/00 Dep. at 525, 528). Some of the sexual comments were directed at Petrosino. She testified that supervisors and coworkers made offensive comments about her body. One supervisor told her to "calm [her] big tits down." IIJ.A.1016 (Battista Dep. at 15). A fellow technician told her that her "ass is so big, it takes up the whole office." IJ.A.416 (Petrosino 7/01 Dep. at 36). Plaintiff testified that her supervisor would follow her around and make sexual comments to her. IJ.A.196-97 (Petrosino 3/15/00 Dep. at 208-09). Another manager told Petrosino to get her "big tits out of his face." IJ.A.488-89 (Petrosino 7/01 Dep. at 179-80). In addition, Petrosino was teased by her coworkers about a sexual assault by another technician that occurred at the beginning of her tenure with Verizon. IJ.A.415 (Petrosino 7/01 Dep. 35) ("that was the big joke for the next three months"); IJ.A.334 (Petrosino 3/30/00 Dep. at 611); IJ.A.393 (Petrosino Aff. ¶ 17) ("it became a big rumor and joke in the garage which was very humiliating and berating for a long time after"). Petrosino stated that "[a]t no time did the sexual language stop during the time I was employed. . . ." IJ.A.390 (Petrosino Aff. ¶ 10); see also IIJ.A.754 (Archdeacon Dep. at 41) ("I would doubt that [the use of offensive language] ever stopped"). One supervisor confirmed that technicians in the garage used language "you wouldn't have around your dinner table at home." IIJ.A.752 (Archdeacon Dep. at 39). Petrosino testified that the vocabulary used in the garage was "intolerable" for women, and that she was offended and embarrassed by it, although it did not seem to bother her male coworkers. IJ.A.219 (Petrosino 3/15/00 Dep. at 240). She stated that she "didn't find it funny but [her male coworkers] did." R. 90 (Petrosino 3/30/00 Dep. at 466). Petrosino testified that she often complained to managers about the sexual language. IJ.A.436-37 (Petrosino 7/01 Dep. at 63-64); see also IJ.A.702 (Mangiero Dep. at 28); IIJ.A.1032 (Battista Dep. at 35). Male managers at Petrosino's garage also made disparaging comments about women in plaintiff's presence. Petrosino's supervisor made belittling comments about women indicating that he did not believe they belonged in I&R. IJ.A.400 (Petrosino Aff. ¶ 38). Petrosino was accused of being "on the rag" or suffering from premenstrual syndrome by two of her supervisors, often in front of coworkers. IJ.A.196-97 (Petrosino 3/15/00 Dep. at 208-09); IJ.A.400 (Petrosino Aff. ¶ 38); IJ.A.420, 450 (Petrosino 7/01 Dep. at 40, 77). One supervisor forced her to tell him in front of her gang that she was having her period and could not do certain work tasks that day because of menstrual cramps. IIJ.A.120 (Lacey Dep. at 53) (stating that Petrosino told him she felt belittled when she had to discuss her period in front of the gang); IJ.A.420 (Petrosino 7/01 Dep. at 40) ("There's forty guys in the room and they're commenting about my menstrual cycle"). Petrosino's supervisor from 1990-92 called her a "damn woman" (IJ.A.249 (Petrosino 3/15/00 Dep. at 278)) and her supervisor in 1996 and 1997 called her a "damn woman" on "many occasions" [IJ.A.400 (Petrosino Aff. ¶ 38); IJ.A.249 (Petrosino 3/15/00 Dep. at 278)]; told her that I&R was not a woman's job; and made derogatory comments about women, repeatedly referring to his ex-wife as "bitch." IJ.A.401 (Petrosino Aff. ¶ 40); see also IIJ.A.1026 (Battista Dep. at 26). Plaintiff testified that this supervisor used to tell her "all the time" that, "if you can't handle it, maybe women can't handle it." IJ.A.310 (Petrosino 3/30/00 Dep. at 502). Plaintiff testified that a higher-level supervisor stated "all the time" that women were "simple," "too sensitive," "too thin-skinned," and did not belong in the garage. IJ.A.248-50 (Petrosino 3/15/00 Dep. at 277-79). When Petrosino complained to him about harassment from her direct supervisor, he reiterated that women were "too damn sensitive." IJ.A.440 (Petrosino 7/01 Dep. at 67). Petrosino was also exposed to offensive graffiti in telephone terminal boxes she used to perform her job "on almost a daily basis." IJ.A.391 (Petrosino Aff. ¶ 12); see also IIJ.A.1041-42 (Battista Dep. at 49-50); IIJ.A.918-19 (Degenhardt Dep. at 46-47). She testified that most of the boxes contained sexual graffiti. IJ.A.425, 502 (Petrosino 7/01 Dep. at 46, 225). Petrosino stated that she saw graffiti picturing women's legs wide open, headless women with their legs in the air, men with their penises out, and pictures of men having sex with animals. IJ.A.423, 486 (Petrosino 7/01 Dep. at 44, 177); see also IIJ.A.1041-42 (Battista Dep. at 49-50) (testifying that graffiti depicted body parts and anal sex). There was also "stuff written all over the boxes about [Richie Augustine's] penis . . .about the size of his penis." R. 64 (Exh. 3 to Baranoff Aff.) (Petrosino 7/01 Dep. at 101). Other examples of graffiti included: "Plato said [his erection] was out to here" [with drawing]; "To get ahead you must give head"; "BD sucks the big bone"; and "Put your rod here," with an arrow pointing to a notch on the door of the terminal box. IJ.A.502-03 (Petrosino 7/01 Dep. at 225-26). Some of this graffiti targeted Petrosino, including the statement "Lisa's blowing the boss." IJ.A.423 (Petrosino 7/01 Dep. at 44); IJ.A.318 (Petrosino 3/30/00 Dep. at 533, 537); see also IIJ.A.919 (Degenhardt Dep. at 47) (recalling that plaintiff was upset about a depiction of her giving oral sex to another technician). She was also told by the coworker who had assaulted her, and who had then become her manager, that there was a sexual reference in one of the boxes linking her to him. IJ.A.391 (Petrosino Aff. ¶ 13). Petrosino could not avoid this offensive graffiti. She testified that, "in order to do my job, I had to look at the terminal boxes." IJ.A.391 (Petrosino Aff. ¶ 12); see also IIJ.A.1044 (Battista Dep. at 55) (a technician cannot avoid climbing certain poles if assigned to that location). Verizon's management was aware of the graffiti but did not correct the problem. IJ.A.504 (Petrosino 7/01 Dep. at 227); IJ.A.392 (Petrosino Aff. ¶ 14); IIJ.A.1043 (Battista Dep. at 54). A supervisor testified that graffiti was an issue as long as he could remember. IIJ.A.759 (Archdeacon Dep. at 46). He observed sexual drawings such as "pictures of a penis" and "things of that nature." IIJ.A.760-61 (Archdeacon Dep. at 47-48). He stated, "you could paint them one day and the next day there would be derogatory statements." IIJ.A.764 (Archdeacon Dep. at 51). Petrosino testified that she was subject to disproportionate criticism and mistreatment by various male supervisors. For example, in July 1997, Petrosino's supervisor failed to supply her additional equipment and an assistant she needed for a risky job on a pole located on a cliff and instead reassigned the job to a male technician, who was provided with the necessary backup. IJ.A.455-56 (Petrosino 7/01 Dep. at 108-09); IJ.A.599 (Russo Dep. at 114). One of Petrosino's supervisors followed her "excessively" from job to job, asked her what she was doing at each location, paged her unnecessarily, and regularly insisted she re-do jobs, sometimes three or four times. IJ.A.442-43 (Petrosino 7/01 Dep. at 69-70). This supervisor repeatedly wrote Petrosino up for minor disciplinary infractions, such as taking a company vehicle to get coffee for another supervisor, having the radio in her truck too loud, or not wearing her seatbelt. IJ.A.402 (Petrosino Aff. ¶ 43); R. 91 (Petrosino 7/01 Dep. at 257); IJ.A.721-26 (Mangiero Dep. at 60-66); see also IJ.A.731 (Mangiero Dep. at 82) (plaintiff's supervisor stated he "did not know for a fact" whether he wrote plaintiff up significantly more than other individuals in his gang). Petrosino testified that he harassed her "the whole time I worked with him" by following her, screaming and cursing at her, slamming his fist on her van when she was inside, and slamming an office door during a meeting with her. R. 90 (Petrosino 3/30/00 Dep. at 500-01, 609); IJ.A.454 (Petrosino 7/01 Dep. at 107). Petrosino told Verizon's administrative supervisor that she passed up opportunities to work overtime so that she could stay away from this manager. She testified, "I said, I don't like the way he harasses and bothers me. . . .I'll lose the money rather than my hair was falling out. . . . it was terrible. I was so stressed out." IJ.A.444 (Petrosino 7/01 Dep. at 71). Decision Below Petrosino alleges in this action that she was subjected to a hostile work environment based on sex, was denied promotion to management because of her sex and was constructively discharged. The district court granted summary judgment to defendant on all of Petrosino's claims. The court concluded that "there is insufficient evidence for a reasonable jury to find that the abuse Petrosino suffered was so severe or pervasive as to constitute a hostile work environment in violation of Title VII." SPA12-13 (Memorandum and Order ("Mem.") at 12-13). While the court acknowledged that the alleged conduct was "undeniably boorish and offensive," it concluded that "there is no triable issue of fact as to whether it rises to a level of actionable sexual harassment." SPA13 (Mem. at 13). Initially, the court opined that "much of the conduct about which Petrosino complains, such as the foul language used in the garage generally and the graffiti, is not discrimination based on Petrosino's sex." Id. The court noted that "[t]here is no evidence that the crude language was motivated by hostility toward Petrosino because of her sex." Id. Similarly, the court reasoned, there is no evidence "suggesting that [Petrosino] was depicted [in graffiti] because of her sex," and evidence that men were also depicted "gives rise to the inference that the individuals represented were not selected because of their sex." Id. The court also held that "viewed as a whole, the allegations of sexual harassment in this case are not sufficiently pervasive to be actionable under Title VII." SPA 14 (Mem. at 14 (citations omitted)). The court stated that "[t]he alleged incidents occurred sporadically and with limited duration over a nine-year period, and thus they lack the continuity that can establish pervasiveness." Id. (citations omitted). Furthermore, according to the court "the conduct alleged by Petrosino does not rise to the level of offensiveness or abuse that courts have found sufficient to make out a hostile work environment claim." Id. (citations omitted). While the court viewed "the instance of unwanted sexual contact" in 1990 as "disturbing," it concluded that it was "insufficiently extreme, in and of itself, to constitute an actionable hostile work environment." SPA15 (Mem. at 15). Because Petrosino did not complain about this incident and later worked with the employee who assaulted her without incident, the court concluded, "the facts fail to establish that Petrosino perceived the incident to be so offensive that it rendered the working environment hostile." Id. In any event, the court held, even if this assault was actionable, "it is one extreme and discrete event," and, therefore, "does not fit within the scope of the unlawful employment practices comprised of a series of incidents of the variety discussed in Morgan." Id. STANDARD OF REVIEW This Court reviews the grant of a motion for summary judgment de novo. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). ARGUMENT THE EVIDENCE IS SUFFICIENT TO SUPPORT A FINDING THAT PETROSINO WAS SUBJECTED TO A HOSTILE WORKING ENVIRONMENT BECAUSE OF HER SEX. The district court granted summary judgment dismissing Petrosino's sexual harassment claim because it concluded that there was insufficient evidence that Verizon subjected Petrosino to a hostile work environment based on her sex. The court committed two fundamental errors in reaching this conclusion. First, in considering whether the harassment was based on sex, the district court erred by focusing exclusively on whether the conduct that allegedly caused the hostile work environment was itself motivated by plaintiff's sex, and ignoring the question of whether Verizon, by requiring Petrosino to work in an environment permeated by such conduct, could be found to have altered Petrosino's working conditions because of her sex. Second, the court usurped the function of the jury by basing its decision on its own opinion as to whether the harassment was severe or pervasive enough to alter the terms and conditions of Petrosino's employment rather than deciding whether a reasonable jury could find that it was. Title VII is violated when sexual harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (question 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") (emphasis original). Whether harassment is sufficiently severe or pervasive to alter the victim's working conditions is "quintessentially a question of fact." Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994). In making this determination, the factfinder must consider all relevant circumstances, including "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, 510 U.S. at 23. The "failure to consider the totality of the circumstances" and the "selective treatment of the evidence" constitutes reversible error. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (reversing summary judgment where district court deemed irrelevant racially derogatory comments that were not made in the plaintiff's presence). This Court has emphasized that the plaintiff is not required to prove that her working environment was "‘unendurable' or ‘intolerable.'" Whidbee, 223 F.2d at 70; see also Terry, 336 F.3d at 148 ("While the standard for establishing a hostile work environment is high, we have repeatedly cautioned against setting the bar too high . . . ."); Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) ("that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases") (internal quotation marks and citation omitted). In considering the defendant's motion for summary judgment, the question before the district court was not whether the court believed that the conduct Petrosino complains of was sufficiently severe or pervasive to alter her working conditions based on her sex, but whether, viewing all the evidence in the light most favorable to Petrosino, a reasonable jury could reach that conclusion. See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000) ("It is not the province of the court itself to decide what inferences should be drawn; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.") (internal citations omitted). The evidence that Petrosino, the only woman in her garage, was exposed to a continual barrage of sexual comments and graffiti, disparaging comments about women, and bullying from several supervisors throughout her employment is sufficient to support a finding that she was subjected to inferior working conditions because of her sex. The district court gave three reasons for concluding that the evidence was insufficient to support a finding for Petrosino on her sexual harassment claim. First, the court discounted all of the evidence that Petrosino was exposed on a daily basis to explicit discussions of sexual topics by her male coworkers and supervisors because there is no evidence that the crude language was motivated by hostility toward Petrosino because of her sex. Similarly, the court concluded that Petrosino's depiction in sexually explicit graffiti was not actionable because there is "no evidence suggesting that she was depicted because of her sex," and male employees were also depicted in sexual graffiti. The district court erred by requiring that the specific conduct underlying a hostile work environment claim be motivated by the victim's sex. The issue in a hostile environment case is whether the plaintiff was subjected to discriminatory "conditions . . . of employment, because of [her] . . . sex" (42 U.S.C. § 2000e-2(a)(1)); not whether specific offensive conduct occurred because of the victim's sex. Although a plaintiff may establish that inferior working conditions were based on her sex by showing that offensive conduct was directed at her because of her sex, that is not the only way to establish a hostile work environment claim. Even where there is no evidence that offensive conduct was directed at the victim because of her sex, the conduct may form the basis for a finding that the plaintiff was subjected to discriminatory conditions of employment because of her sex. This is so because sexually offensive conduct may "clearly ha[ve] a disproportionately demeaning impact on the women" in a workplace even if it was not engaged in for the purpose of offending those women. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1523 (M.D. Fla. 1991). As the Commission states in its Guidelines on Sexual Harassment, "verbal or physical conduct of a sexual nature constitute[s] sexual harassment when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (citing with approval 29 C.F.R. § 1604.11(a)); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86 (3d Cir. 1990) ("Obscene language and pornography quite possibly could be regarded as ‘highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse.'") (citation omitted); cf. Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) ("Conduct that many men consider unobjectionable may offend many women."). The proper focus in a sexual harassment case is on whether the work environment was more hostile or abusive to the plaintiff because of her sex. See 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"). The Supreme Court noted in Oncale that the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." Id. at 82. "Evidence of a general work atmosphere therefore as well as evidence of specific hostility toward the plaintiff is an important factor in evaluating the claim." Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987). The "accumulated effect" of incidents of offensive comments directed at women and other harassing conduct, "taken together, can constitute a hostile work environment." O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001); Andrews, 895 F.3d at 1484 ("A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario."). A jury could find that, although male Verizon employees heard the same sexual conversations that Petrosino was exposed to every day and saw the same sexual graffiti in the terminal boxes, the effect on Petrosino's working conditions was foreseeably greater and more negative because she was a woman, particularly because she was the only woman in an otherwise all-male workplace. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir. 2003) (en banc) (jury could find that atmosphere permeated by sexually explicit conversations and conduct by male employees was more offensive to lone female employee than to other male employees). The district court's contrary ruling not only ignores the terms of Title VII's prohibition on sex discrimination in employment, it would render the statute ineffective in protecting women, and other minorities, from practices that frustrate the goal of equal employment opportunities. A work environment permeated by sexually offensive language or conduct "creates a barrier to the progress of women in the workplace because it conveys the message that they do not belong, that they are welcome in the workplace only if they will subvert their identities to the sexual stereotypes prevalent in that environment." Robinson, 760 F. Supp. at 1523; cf. Harris, 510 U.S. at 22 (pervasive sexual harassment violates Title VII because it may "detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers"); Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982) (an employee should not have to "run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living"). Yet, under the district court's approach, a woman like Petrosino who enters a pre-existing all- male environment rife with sexual language and graffiti would be hard-pressed to establish a Title VII violation no matter how offensive the work atmosphere is to women. It will always be difficult for a female trailblazer to prove that a continuation of that conduct was motivated by her sex as the district court required her to do. This Court should hold that, even without such evidence, a reasonable jury could conclude that Verizon subjected Petrosino to discriminatory working conditions because of her sex by requiring her to work in this environment. A reasonable jury could find that because Petrosino was the only woman in a male- dominated workplace, the sexually charged atmosphere was particularly hostile and abusive to her and she was, therefore, provided with inferior conditions of employment because of her sex. As the Fourth Circuit recently observed in an en banc decision reversing summary judgment for an employer in a case where a lone female employee was subjected to a workplace permeated by sexually explicit language and conduct, "No man was driven from the room because of the conduct as was plaintiff on occasion." Ocheltree, 335 F.3d at 332. As Judge Michael pointed out in his dissent from the original panel decision in Ocheltree, an African American who entered an all-white workplace where daily use of racial slurs about African Americans was the norm both before and after the plaintiff's arrival would surely have a Title VII claim for racial harassment. Ocheltree v. Scollon Prods., Inc., 308 F.3d 351, 376 (4th Cir. 2002) (Michael, J., dissenting) ("harassment can be ‘because of race' even if the plaintiff would have been exposed to the same atmosphere had he been white"), vacated, 335 F.3d 325 (4th Cir. 2003)(en banc). If that would be the case in a racial harassment action, "harassment can also be ‘because of sex' even if the plaintiff would have been exposed to the same atmosphere had she been male." Id. Moreover, there is evidence that some of the sexual and sexist comments were directed at Petrosino. Petrosino testified that she was called "a damn woman" repeatedly, accused of being "on the rag," and subjected to disparaging comments about women such as "women are too sensitive," "simple," "thin-skinned," or should not be performing the job of an I&R technician. IJ.A.310; IJ.A.248-50. Graffiti in the terminal boxes linked her sexually to the coworker who had earlier sexually assaulted her and proclaimed "Lisa's blowing the boss." IJ.A.391; IJ.A.423; IJ.A.318; IIJ.A.919. She was told to by a manager to "calm [her] big tits down"; get her "big tits out of [her supervisor's] face"; and was told by a coworker that her "ass is so big, it takes up the whole office." See IIJ.A.1016; IJ.A.488-89; IJ.A.416. Petrosino also testified that she was bullied and mistreated by male coworkers and supervisors. See IJ.A.455-56; IJ.A.442-43; IJ.A.402; IJ.A.400. Based on this evidence, a jury could find that the men in her garage "harassed [Petrosino] in such sex-specific and derogatory terms . . . as to make it clear that [they were] motivated by general hostility to the presence of [a] wom[a]n in the[ir] workplace." Oncale, 523 U.S. at 80; see also Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001) (evidence that supervisor made demeaning remarks about women, weaving vulgar and sexually explicit language into tirades against plaintiff "hardly leave[s] it beyond doubt that she can prove no set of facts establishing that her sex, in one way or another, played a substantial role" in supervisor's behavior). The district court also held that Petrosino's claim failed because, "viewed as a whole, the allegations of sexual harassment in this case are not sufficiently pervasive to be actionable under Title VII." SPA14. According to the court, "The alleged incidents occurred sporadically and with limited duration over a nine-year period . . . ." Id. On the contrary, the evidence would support a finding that the harassment occurred frequently enough to alter Petrosino's working conditions. The district court's characterization of the harassment as "sporadic" is indefensible if the sexually explicit conversations and the sexual graffiti are considered. Petrosino testified that she was exposed to these forms of offensive conduct on or almost on "a daily basis" during her years at Verizon. IJ.A.389; IJ.A.308; IJ.A.391. Since, for the reasons discussed above, these forms of harassment should have been included in assessing Petrosino's claim, the district court erred in concluding that the alleged harassment was insufficiently pervasive to be actionable under Title VII. In any event, a jury could find that the other forms of harassment the sexual comments directed at Petrosino, the disparaging comments about women in general and Petrosino in particular, and the general bullying of Petrosino occurred with sufficient frequency to support a finding of pervasive harassment. Although this conduct did not occur every day, there is evidence that Petrosino's coworkers and supervisors engaged in these forms of harassment often enough to support a finding that they were a regular feature of her employment at Verizon. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000)(evidence that plaintiff was subjected to harassment "on a regular if not constant basis" was sufficient to allow a finding that she was subjected to a hostile work environment); cf. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) ("A hostile working environment is shown when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive."). Finally, the district court held that the defendant was entitled to summary judgment because "the conduct alleged by Petrosino does not rise to the level of offensiveness or abuse that courts have found sufficient to make out a hostile work environment claim." SPA14. This Court has explicitly instructed the lower courts not to grant summary judgment based on the rationale that the harassment alleged is not as serious as that held sufficient in prior cases. The Court has stated, "[Defendant] errs when it assumes that those [other Second Circuit] cases establish a baseline. There is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim." Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (internal quotations omitted); see also Harris, 510 U.S. at 22 (the "appalling conduct" alleged in prior cases should not be taken to "mark the boundary of what is actionable"). These cases reflect the fact that reasonable minds can differ on the question of whether a particular pattern of harassment is sufficiently severe or pervasive to constitute a hostile work environment. A district court may grant summary judgment on this issue only if, construing the record in the light most favorable to the plaintiff, no reasonable jury could find that the alleged conduct was sufficiently severe or pervasive to constitute a hostile work environment. See, e.g., Howley, 217 F.3d at 150 ("[T]he district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact."). Under this standard, summary judgment was clearly not warranted in this case. CONCLUSION For the reasons statement above, the district court's grant of summary judgment on Petrosino's hostile work environment claim should be reversed. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 October 2, 2003 CERTIFICATE OF COMPLIANCE Pursuant to 2d Cir. R. 32(b), I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). The brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 9, Courier New 12-point font, and contains 5983 words. See FRAP 29(d) & 32 (a)(5). __________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent first class mail, postage pre-paid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLANT: Adrienne Baranoff DECKER & DECKER 1610 Richmond Road Staten Island, NY 10304 COUNSEL FOR DEFENDANT-APPELLEE: Deborah S. Markowitz Michael Kalish EPSTEIN, BECKER & GREEN, P.C. 250 Park Avenue New York, NY 10177 ____________________________ Julie L. Gantz, Esq. U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 October 2, 2003 TABLE OF AUTHORITIES CASES Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990). . . . . . . . . . . . . . . . . . . . . . .19, 20 Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994) . . . .15 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . .19 Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000)25 Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001) . . . . .23 Harris v. Forklift System, Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . .15, 21, 26 Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982). . . .21 Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)19 Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . .16, 27 Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987)25 Meritor Savs. Bank, FSB, v. Vinson, 477 U.S. 57 . . . . . 18 Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 226 O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Ocheltree v. Scollon Prods., Inc., 308 F.3d 351 (4th Cir. 2002), vacated, 335 F.3d 325 (4th Cir. 2003) . . . . .22 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) (en banc). . . . . . . . . . . . . . . . . .20, 22 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . . . .19, 23 Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . .26 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991) . . . . . . . . . . . . . . . . . . . .18, 21 Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997) .16 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) . .14, 16 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997). . .16, 26 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000) . . . . . . . . . . . . . . . . . .15, 16 STATUTES AND REGULATIONS 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . .2 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq1 42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . 18 29 C.F.R. § 1604.11(a). . . . . . . . . . . . . . . . . . 18