Kenneth Pirolli v. World Flavors, Inc. 99-2043 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________ No. 99-2043 _______________________________________ KENNETH PIROLLI, Plaintiff/Appellant, v. WORLD FLAVORS, INC., and EDWARD SELSER, Defendants/Appellees. _____________________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _____________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _____________________________________________________________ GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W. JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 TABLE OF CONTENTS TABLE OF AUTHORITIES...............................................ii STATEMENT OF INTEREST.........................................1 STATEMENT OF THE ISSUES...........................................1 STATEMENT OF FACTS................................................2 District Court Decision ....................................... 5 SUMMARY of ARGUMENT..........................................8 ARGUMENT I. THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE ENVIRONMENT DISCRIMINATION ............................................... 10 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR WORLD FLAVORS WHERE THERE WAS EVIDENCE THAT PIROLLI'S CO-WORKERS SUBJECTED HIM TO SEVERE AND ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX ......... 12 A. There was Evidence that Pirolli was Subjected to Harassment Because He was a Mentally Retarded Male .................................. 12 B. There Was Evidence that the Alleged Conduct by Co-Workers Was Sufficiently Severe to Create a Hostile Work Environment for Pirolli ....... 20 C. There Was Evidence that Pirolli's Employer Failed to Take Prompt and Adequate Remedial Action in Response to Known Harassment .......... 26 CONCLUSION.................................................................28 ADDENDUM CERTIFICATE OF BAR MEMBERSHIP and CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICESTATEMENT OF INTEREST The Equal Employment Opportunity Commission is the federal agency charged with the interpretation, administration, and enforcement of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal raises the important legal question -- yet to be decided definitively by any court of appeals -- of whether the ADA contemplates a claim for hostile work environment harassment. This appeal also presents the issue of how to analyze comparative evidence where the claim is not that the harassment occurred because of sex or because of disability, but because of sex and disability. In our view, the district court's decision did not take the unique nature of the claim into account, and as a result the court failed to consider powerful comparative evidence that plaintiff was harassed because he fell within the subgroup of mentally retarded male. We therefore offer our views to the Court. STATEMENT OF THE ISSUES<1> 1. Whether the ADA encompasses claims of hostile work environment discrimination where the ADA contains language virtually identical to Title VII language interpreted to encompass such claims. 2. Whether summary judgment was improperly granted where there was evidence plaintiff was subjected to severe and abusive harassment because of his disability and sex, and where the employer took no remedial action in response to the most severe acts of harassment. STATEMENT OF FACTS Plaintiff Kenneth Pirolli was hired by defendant World Flavors, Inc., in May 1994 through the Bucks County Association for Retarded Citizens Productions Services, Inc. ("BARC"), an organization that trains and places disabled individuals. Pirolli has been diagnosed with "Borderline Intellectual Functioning," R.22,<2> Exh. C at 1 (attached as Addendum) (hereinafter "Add."), and has been tested as having an IQ of 75 on the Wechsler Intelligence Scales.<3> R.22, Exh. B ("Confidential Report of Psychological Evaluation"). Pirolli also has been diagnosed with a "Relational Problem Not Otherwise Specified." Add. 1. A 1990 assessment of Pirolli, prepared while he was attending school in a Special Education program, listed under a "Concerns/Observations" heading: "Social ineptness (drools [and] stands to[o] close to others when he talks). Not liked by peers." R.22, Exh. B ("Child Study Team Report"). The report also noted that in school Pirolli "is often teased and his feelings are hurt." Id. World Flavors, a company that processes and sells spices, hired Pirolli to work as an "all around person," weighing products; packing, sealing, and stacking boxes for shipment; sweeping and scrubbing the plant floors; and picking up trash. Pirolli was able to perform these tasks, and often did so with "no problems at all." R.22, Exh. G (Selser Dep.) at 26, 37; see also id. at 38 (Pirolli was "more than capable" of performing his job). At other times, however, Pirolli would make mistakes, which required that the task be repeated. Ed Selser, the plant manager, stated in his deposition that Pirolli's mistakes caused some resentment among his co-workers: "you hear the mumblings from the other employees. Thanks Ken . . . now we've got to do it all over again, or something like that." Id. at 37. It is unclear from the record how well Pirolli fit in among his co-workers. While some co-workers stated in depositions that they considered Pirolli a friend, Pirolli himself stated that he did not have any friends at the plant. R.22, Exh. A (Pirolli Dep.) at 17. Pirolli also stood out in certain ways from his co-workers. For example, Pirolli used to wear fingernail polish and fake fingernails to work. Id. at 21. Co-workers eventually told Selser about Pirolli's nails, and Selser instructed Pirolli not to wear the polish or fake fingernails. Id. at 24. According to Pirolli, "everything that they see it bothered them [his co-workers], and they told him [Selser]." Id. at 23. Pirolli alleges that between the time he was hired in May 1994 and his termination in September 1996, he was subjected to harassment by his co-workers. Some of the alleged harassment took the form of name-calling. R.22, Exh. A (Pirolli Dep.) at 26. Other alleged harassment was more physical and, to Pirolli, more threatening. For example, Pirolli stated that one day he was in the men's locker room changing clothes. At the time, Pirolli had a shirt and jacket on, but no pants. Id. at 51. As Pirolli described it, when he bent over to get his clothes "I seen Mike's [a co-worker's] penis . . . . Then he pulled his pants up just enough to cover it, then the lights went out. Sam [another co-worker] hold me with his arms, they tried to hold me down. . . . Ken [another co-worker] was there, he didn't do nothing, he was just watching." Id. at 49. Pirolli stated that "Gene," another co-worker had turned off the lights and was trying to close the door, but Pirolli stuck his foot in the door. Eventually Gene turned the lights back on. To Pirolli, he felt that his co-workers were "almost raping me." Id. at 50. Pirolli stated that he told Selser about the incident, that Selser promised "to take care of it," but that Selser never took any action. Id. at 51. There was also evidence that another one of Pirolli's co-workers, Harley Strauss, "attempted to push a broom pole into [Pirolli's] behind as other staff watched." Add. 1. Pirolli was wearing work clothes at the time. There was evidence that at times when Pirolli would bend over, Sam would rub his penis against Pirolli's behind. Add. 1. Pirolli "reported these incidents to his foreman [Selser]," but "the harassment continued." Add. 1. And there was evidence that Pirolli's co-workers put him in a "tote," a large plastic container. He stated that he had to kick the lid open to get out. Pirolli stated that he never saw anyone else put in a tote. R.22, Exh. A (Pirolli Dep.) at 47. Finally, there was evidence of actions by Pirolli's co-workers that were directed at a number of different employees. Such actions included throwing balls of tape at each other, squirting water at each other, hitting each other in the arm, and putting each other in headlocks. However, the more severe, sexually-oriented conduct appeared to be reserved for Pirolli alone. World Flavors employed one other individual with some mental retardation. R.22, Exh. G (Selser Dep.) at 71; see also R.22, Exh. J (Twaits Aff.). That employee, who was female, apparently was not subjected to harassment. According to the employee, Leslie Ann Twaits, she felt that she was not singled out for different treatment and she did not believe she had been subjected to discrimination. R.22, Exh. J (Twaits Aff.). District Court Decision The district court granted World Flavors' motion for summary judgment. See Pirolli v. World Flavors, Inc., 1999 WL 1065214 (E.D. Pa. 1999). The court first considered Pirolli's claim that he was subject to harassment on the basis of sex. According to the court, the evidence presented "does not provide a basis upon which a reasonable jury could find that he was harassed because of his sex." Pirolli, 1999 WL 1065214, at *3. The court considered the evidence of the locker room incident, which Pirolli characterized as "the rape." The court noted Pirolli's testimony that a co-worker held him by the waist and attempted to prevent him from leaving the room, that another co-worker turned off the lights, that this event occurred while Pirolli and the others were in various stages of undress, and that, according to Pirolli, he saw another co-worker's penis during the scuffle. Id. The court concluded that this conduct, albeit "inappropriate," "was far from a rape or even an attempted rape." Id. The court next considered Pirolli's allegation that a co-worker attempted to insert a broomstick up his anus while another co-worker watched. The court deemed the incident merely "inappropriate" and "far less offensive than the complaint allegations suggest." Pirolli, 1999 WL 1065214, at *4. The court also emphasized that the only record substantiation for this allegation was the report of Pirolli's psychologist. The report was not in the form of an affidavit, nor was "the alleged history . . . verified by an affidavit from plaintiff." Id. at *4 n.4. The court concluded that the "report alone in this form cannot be the basis for a factual dispute." Id. Addressing the remaining evidence, the court noted that other instances of harassment (e.g. being stuffed into a large plastic container) were "not overtly sexual in nature," and allegations of other sexual-type harassment (e.g. propositions from co-workers) did not have record support. Pirolli, 1999 WL 1065214, at *4. The court concluded that while some of the conduct of Pirolli's co-workers "had an offensive sexual connotation," there was insufficient evidence of discrimination because of sex. Pirolli, 1999 WL 1065214, at *4. The district court, analyzing the claim further, determined that although the conduct was regular and pervasive and it detrimentally affected Pirolli, the conduct objectively did not rise to the level of severity, offensiveness, or abusiveness required to constitute harassment. Pirolli, 1999 WL 1065214, at *5. The court stated that Pirolli "was treated no differently than his co-workers," who regularly engaged in "physical horseplay and roughhousing." Id. Such "macho horseplay and adolescent roughhousing" appears to have been the "workplace etiquette in [the] food plant." Id. at *11. Finally, the court held that there were no grounds for holding the employer liable since there was evidence that, after Pirolli complained to Selser about an incident, Selser disciplined the co-worker. Id. at *5. The district court next addressed Pirolli's ADA harassment claim. The court noted that the Third Circuit has not decided whether such a claim is viable under the ADA. Pirolli, 1999 WL 1065214, at *6. In any event, the court held, there is insufficient evidence that Pirolli experienced harassment because of his disability. According to the court, there is no evidence "of an awareness among his co-workers of Pirolli's mental disability or that their behavior stemmed from such an awareness." Id. Nor was there evidence that the work environment was "severe and abusive," as an objective matter. Id. SUMMARY OF ARGUMENT The plain language of the ADA establishes that Congress intended to encompass claims of hostile work environment harassment under the ADA. In the ADA, Congress chose to use virtually the same language that the Supreme Court held demonstrated Congress' intent to encompass claims of hostile work environment discrimination under Title VII. Where Congress incorporates a provision of a prior law into a new law, it can be assumed that Congress is aware of the judicial interpretation of that provision. It is thus evident that Congress intended that the ADA would protect disabled individuals from disability-based harassment in the workplace. The plaintiff in this case alleged he was subjected to severe harassment not only because of his disability (mental retardation), but also because of his sex. The district court examined the sex and disability allegations separately, failing to consider the evidentiary interplay between the two allegations. As a result, the court apparently neglected to consider evidence that Pirolli was subjected to harassment not simply because he was male and not simply because he had some mental retardation, but because he was a mentally-retarded male. That an individual can allege discrimination because he or she belongs to a subclass of one or more particular protected groups, such as black females, is well-settled as a matter of law. Factually, there was powerful comparative evidence that while numerous employees engaged in occasional horseplay, only Pirolli was subjected to the more severe and sexually-oriented conduct alleged. There was one other mentally-retarded employee, a female, who was not treated differently than her co-workers. From this comparative evidence a jury could infer that but for Pirolli's status as a mentally-retarded man, he would not have been the unique recipient of his co-workers' sexually-hostile treatment. Finally, even considering the sex claim standing alone, the form of the co-workers' conduct - suggestions of anal sodomy - could itself be grounds from which a jury could infer that but for Pirolli being a male, he would not have been subjected to such conduct. The district court's alternative holding - that the conduct was not objectively severe or abusive - is flawed. Considering the circumstances of the incidents, particularly the locker room incident, a reasonable person could find them threatening or humiliating. These incidents also must not be analyzed in a vacuum, but rather should be assessed in their totality to ascertain whether the incidents add up to a hostile work environment. To the extent that the district court declined to consider evidence because it was contained within a psychologist's report unaccompanied by affidavit, the court erred. This Court has held that the standard for authentication is flexible and should take into account all the evidence indicating that a document is authentic. In this case there was considerable evidence that the report, which was submitted by defendant and which was never challenged as unauthentic, was in fact authentic. ARGUMENT I. THE ADA PLAINLY EMBRACES CLAIMS OF HOSTILE ENVIRONMENT DISCRIMINATION. The ADA prohibits discrimination in regard to "terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). This language is borrowed from Title VII (42 U.S.C. § 2000e-2(a)), and is virtually the same language the Supreme Court interpreted to encompass hostile environment claims under that statute. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) ("'phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women" in employment,' which includes requiring people to work in a discriminatorily hostile or abusive environment") (quoting Meritor Savs. Bank v. Vinson, 477 U.S. 57, 64 (1986)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998). Congress' decision to use the comparable "terms" and "conditions" language in the ADA is significant, for "Congress is presumed to be aware of . . . [a] judicial interpretation of a statute." Lorillard v. Pons, 343 U.S. 575, 580 (1978). And where "Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law." Id. at 581. Moreover, there is every reason to think that Congress intended to afford disabled individuals the same protection from a hostile work environment that it affords individuals protected by Title VII. See generally H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471 ("the purpose of the ADA [is] to provide civil rights protections for persons with disabilities that are parallel to those available to minorities and women"). This Court has recognized that the "almost identical" language used in the ADA "indicates that a cause of action for harassment exists under the ADA." Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 666 (3d Cir. 1999). The Walton Court stopped short of so holding, however, because the plaintiff in that case failed to state a claim disability-based harassment. Id. at 667. In any event, whether or not the Walton Court made an explicit holding, we urge this Court to give effect to its well-reasoned conclusion that Congress' choice of language in the ADA is powerful evidence that harassment claims are encompassed within the ADA. II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR WORLD FLAVORS WHERE THERE WAS EVIDENCE THAT PIROLLI'S CO-WORKERS SUBJECTED HIM TO SEVERE AND ABUSIVE HARASSMENT BECAUSE OF HIS DISABILITY AND SEX. A. There was Evidence that Pirolli was Subjected to Harassment Because He was a Mentally Retarded Male. Critical to any claim of discrimination is proof that such discrimination occurred because of a trait protected by one of the anti-discrimination statutes. See generally Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). The district court held, on summary judgment, that Pirolli failed to meet that burden because there was insufficient evidence that the co-workers' actions were due to Pirolli's sex or disability. In our view, however, there was strong, comparative evidence that Pirolli was subjected to harassment by his peers because of his sex and because of his disability. In particular, there was evidence that male co-workers without mental retardation were subjected only to minor "macho" horseplay and not the severe and abusive harassment to which Pirolli alone was subjected. There was evidence that a female co-worker with a comparably pronounced learning disability was subjected to no harassment at all. In sum, the comparative evidence in this case at least creates an inference that the harassment Pirolli had to endure was inflicted because of his unique status as a mentally retarded male, thus making summary judgment inappropriate. The district court rejected Pirolli's harassment claim in part because, it stated, there was no evidence his co-workers knew of "Pirolli's mental disability," a fact which, if true, would negate any inference that their actions were taken because he was mentally retarded. The district court's statement that there was no evidence of co-worker knowledge is flatly inconsistent with the record. Most notably, Ed Selser, the plant manager, testified in his deposition: "I'm not sure who was employed at that time, but I know that everyone was alerted that Kenny [Pirolli] had - what would you call it, a disability or handicap." R.22, Exh. G (Selser Dep.) at 49 (emphasis added). The court's characterization of the evidence also is at odds with reasonable inferences that could be drawn, and on summary judgment must be drawn, from other record evidence. See, e.g. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000) (court must draw all reasonable inferences in favor of nonmoving party). For example, there was evidence that when Pirolli began his employment, he was accompanied by a representative from BARC for one to two weeks. R.22, Exh. G (Selser Dep.) at 23. The BARC representative helped Pirolli understand how to perform his assigned tasks. Id. at 66-67; see also id. at 22 (representative was "like . . . a shadow. She was there watching, making sure that everything was going fine."). Thereafter, the representative often returned to check on Pirolli. Id. at 59. There also was evidence that Pirolli "stood out" in appearance and manner from others around him. See, e.g., R.22, Exh. B ("Child Study Team Report") (Pirolli drools and stands too close to others when he talks). A factfinder could reasonably infer from this evidence that co-workers would have to have been aware that Pirolli had some disability, and the district court erred in holding to the contrary. The district court also stated there was no evidence that Pirolli was harassed "because of" his protected traits. In analyzing Pirolli's claim that he was harassed, the district court examined the sex and disability components of the claim in complete isolation, without considering the possibility of, and the significance of, an overlap of the two claims. The court likewise examined the evidence supporting the claims in isolation. Perhaps as a result, the district court did not recognize the comparative evidence indicating that Pirolli may have been subjected to harassment far more severe than co-workers not just because he was male or disabled, but because he was a mentally retarded male. It appears that the fact that not all men were subjected to severe harassment, and that not all mentally retarded employees were subjected to harassment, may have undermined the strength of Pirolli's claim in the court's view. In our view, the court erred by failing to assess the evidence that Pirolli was harassed because he was both disabled and male. As a legal matter, it is well-settled that a violation can be established by demonstrating discriminatory conduct against a particular subclass of one or more protected groups (here a mentally retarded male). For example, in Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1034 (5th Cir. 1980), the Fifth Circuit held that the plaintiff, a black female, could state Title VII claim for discrimination against black females even though the employer did not discriminate against female or black employees generally. The court noted it was relying on a long line of precedent holding that employers may not discriminate against a subclass of women. See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (plaintiff can state claim under Title VII where employer discriminated not against all women, but only against women with preschool-age children). The Jefferies court noted that the additional factor in the case -- race -- was itself a prohibited basis of discrimination. The court went on to hold that allowing discrimination against a subclass of individuals with two protected traits would be "illogical." Jefferies, 615 F.2d at 1034; see also Lam v. University of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994) (holding Asian woman may pursue claim of discrimination on basis of combination of the two factors and criticizing any "attempt to bisect a person's identity at the intersection of race and gender"). Failure to recognize a claim for discrimination here, where disability rather than race is the additional factor, likewise would be illogical.<4> The rationale for recognizing claims like those in Jefferies, commonly referred to as "sex (or race or some other protected trait) plus" cases, is grounded in the language of the statutes themselves. Both Title VII and the ADA prohibit discrimination "because of" a protected trait. 42 U.S.C. § 2000e-2(a); 42 U.S.C. § 12112(a). This language does not mean that the protected trait must be the sole cause of the discrimination. See Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084, 1089-91 (5th Cir. 1975) (Congress' rejection of amendment to Title VII which would have added word "solely" to modify word "sex" supports "sex plus" theory). Rather, the statutes are violated whenever the protected trait is a "but for" cause of discrimination. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 262-63 (1989) (O'Connor, J.); see also 42 U.S.C. § 2000e-2(m) (Title VII violated whenever protected trait was a motivating factor, even though there were other motivating factors); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (in racial harassment case, plaintiff must show that if she "had been white she would not have been treated in the same manner"). A violation can be established where a plaintiff shows discrimination because of a protected trait (such as sex) plus some additional characteristic.<5> Thus in this case Pirolli must show that but for his disability and sex the harassment would not have occurred. Turning to the facts of this case, there is sufficient evidence that Pirolli was harassed because he was a mentally retarded male to preclude summary judgment. The evidence that the harassment occurred because he was a mentally retarded male is primarily comparative. Comparative evidence can be highly probative in cases such as this one. Indeed, the Supreme Court explicitly approved of using comparative evidence in harassment cases. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998) (harassment plaintiff can prove discrimination by using comparative evidence about how plaintiff was treated vis-a-vis individuals who are not members of the protected class). In this case, there is evidence that while other employees were the subject of occasional punches in the arm, water fights, and the like, no other employee was subjected to the more severe and sexually-oriented conduct to which Pirolli allegedly was subjected. The district court's statement that Pirolli "was treated no differently than his co-workers," Pirolli, 1999 WL 1065214, at *5, cannot be reconciled with the evidence that only Pirolli was subjected to incidents like the ones that occurred in the locker room or with the broomstick. The record indicates that Pirolli's co-workers also did not subject a female disabled employee to harassment of any kind. Leslie Ann Twaits, who also was hired through an agency assisting disabled individuals obtain employment, had some mental retardation. R.22, Exh. G (Selser Dep.) at 71; see also R.22, Exh. J (Twaits Aff.) (Twaits has "a learning disability").<6> Twaits stated in an affidavit that "I feel that I have been treated like everyone else at World Flavors and I do not believe that I have ever been . . . discriminated against . . ." R.22, Exh. J (Twaits Aff.). A jury could infer from this comparative evidence that Pirolli was subjected to harassment because he was mentally retarded and he was male. The fact that the co-workers did not harass all males, or all mentally-disabled individuals should not undercut the significance of this comparative evidence. See Jefferies, 615 F.2d at 1034 (fact that black males and white females were not subject to discrimination should not defeat claim that employer discriminated against black female plaintiff). To the contrary, the comparative evidence in this case is a sound basis from which a jury could infer hostility by certain co-workers towards the presence of a mentally retarded man in their workplace. Finally, the evidence in this case also could support a claim by Pirolli that he was harassed because of his sex, without considering the fact that he was mentally retarded. There was evidence that co-workers repeatedly engaged in conduct suggesting sexual invasion or humiliation, such as the locker room incident, the broom pole incident, and the occasions on which "Sam" would "rub his penis against Mr. Pirolli's behind." Add. 1. As discussed above, the evidence indicates that females were not subjected to this kind of severe behavior. Moreover, the form of the behavior itself - suggestions of anal sodomy - seems to be behavior inflicted largely on male victims.<7> See Oncale, 523 U.S. at 80 (jury can infer from form of offensive conduct towards plaintiff that same conduct would not have occurred had plaintiff been member of the other sex). A jury could infer from the form of the conduct itself that but for Pirolli being a male, he would not have been subjected to severe harassment. B. There Was Evidence that the Alleged Conduct by Co-Workers Was Sufficiently Severe to Create a Hostile Work Environment for Pirolli. The district court held that the alleged conduct by Pirolli's co-workers was not sufficiently severe, offensive, or abusive to constitute harassment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1998) (Title VII violated when workplace permeated with "'discriminatory intimidation, ridicule, and insult,' . . . that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'"); Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999) (same) (ADA case). We submit that the court erred in so holding. The district court appeared to give little weight to the two most severe incidents alleged. With regard to the locker room incident, the court concluded that the complaint's characterization of it as a "rape" was an exaggeration. Pirolli, 1999 WL 1065214, at *3 (conduct was "inappropriate" but "was far from a rape or even an attempted rape"). It is true that the conduct obviously was not "rape," compare18 Pa.C.S.A. § 3121, but the arguable hyperbole of the complaint<8> does not excuse failing to consider the evidence presented. Actions short of rape plainly can constitute unlawful harassment. In addition, this Court has held that it is not necessary that each incident standing alone be severe enough to create a hostile work environment; a court should look to "totality" of conduct to determine whether a hostile work environment exists. See West v. Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995); Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990). We also take issue with the court's characterization of the incident as merely "inappropriate," especially in light of the evidence surrounding the incident. As the Supreme Court has emphasized, "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at 23). In our view, any reasonable person could view being physically restrained by co-workers in a darkened locker room under circumstances set out by Pirolli as severe and abusive. See Harris, 510 U.S. at 23 (whether conduct is "physically threatening or humiliating" is relevant to whether environment is hostile or abusive). Subjectively, Pirolli was "'scared to death'" by the incident and "feared he would be raped." Add.<9> The district court also deemed merely "inappropriate" the threat to insert a broomstick up Pirolli's anus. Again we submit that the incident was more than simply inappropriate and could support a finding of severity because of its threatening and/or humiliating character. See Harris, 510 U.S. at 23; see also McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1193-96 (4th Cir. 1996) (co-workers who "placed a broomstick to [plaintiff's] anus"and who tied plaintiff's hands together and blindfolded him engaged in conduct that was "shameful," "utterly despicable," and arguably at the level of adversely affecting the victim's work performance)<10>; Martin v. Norfolk S. Ry. Co., 926 F. Supp. 1044, 1047-52 (N.D. Ala. 1996) (co-workers who, inter alia, "attempted to stick a broom handle into [plaintiff's] anus" while plaintiff was "fully clothed" engaged in conduct that was "offensive" and arguably "extreme and outrageous"); Goluszek v. H.P. Smith, 697 F. Supp. 1452, 1454-56 (N.D. Ill. 1988) (co-worker actions, including "pok[ing] [plaintiff] in the buttocks with a stick," was "pervasive . . . harassment")<11>; compare Taylor v. Nat'l Group of Cos., 872 F. Supp. 462, 463-64 (N.D. Ohio 1994) (female plaintiff struck on buttocks by board wielded by company president "is an example of extremely severe sexual harassment"). There also was other evidence of harassment which the court did not mention, such as evidence that one male co-worker at times would rub his penis against Pirolli's behind when Pirolli would bend over. In our view, when the evidence of harassment is considered in totality, the harassment was sufficiently severe and abusive to make summary judgment inappropriate. The district court in this case apparently gave the broomstick incident little consideration, and the rubbing incidents no consideration, because the evidence of these incidents was contained within a psychologist's report which, as the district court stressed, was not in the form of an affidavit nor was it verified by an affidavit from Pirolli. Pirolli, 1999 WL 1065214, at *4 n.4 (the "report alone in this form cannot be the basis for a factual dispute"). That the report was unaccompanied by an affidavit should not automatically render the report unauthenticated, however, especially where there was other evidence of the report's authenticity. In his deposition, Pirolli stated that he went to see the psychologist, Dr. Dorfman, on a regular basis. Pirolli stated that he discussed events "that were going on with me over [at] World Flavors." R.22, Exh. A (Pirolli Dep.) at 45. When asked whether he told Dr. Dorfman "everything that happened to you that bothered you," Pirolli replied "Yes, I told him everything." Id. at 46; see also id. at 30-32, 44-45. Pirolli specifically mentioned discussing being placed in the tote with Dr. Dorfman. Id. at 46. The district court did not consider this evidence, but instead applied an unduly rigid authentication standard. Such a rigid standard is inconsistent with this Court's precedent, for this Court has rejected applying "technical evidentiary rules" to the question of authenticity. See Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 928 (3d Cir. 1986). According to the Link Court, "'[t]he burden of proof for authentication is slight. "All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be."'" Id. at 927. Such foundation can include circumstantial evidence. Id. The Linz Court determined that distinctive characteristics of the documents - such as company logos, a professional appearance, and the specific nature of the contents of the documents - were characteristics "sufficient to overcome the slight authentication admissibility burden." Id. at 928. Dr. Dorfman's report likewise has a professional appearance, is specific in the nature of its contents, and is on professional stationery. Add. The top of the report also indicates that it was faxed from Dr. Dorfman's office. Id. Combined with Pirolli's deposition testimony, there was sufficient indicia that the document was what both parties purported it to be. Moreover, defendant did not raise any questions about the report's authenticity. Indeed, it was the defendant itself that first placed the report in the district court record when it attached it as an exhibit to its summary judgment motion. Given that defendant first attached the report as an exhibit, Pirolli had no reason to expect a dispute as to authenticity. Compare Mangiaracina v. Clark, 2000 WL 684191, *1 (S.D. Ind. 2000) (not unusual for unauthenticated documents to be submitted, especially where no reason to expect a dispute). Had the defendant raised an objection Pirolli could have attempted to cure the defect with an affidavit. Id.; compare Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir. 1982) (district court may consider a document where opposing counsel does not object to the document); 10A Wright & Miller, Federal Practice & Procedure § 2722 n.43 (same). Additionally, defendant should not be allowed to challenge the report's authenticity in this Court, for where no timely objection is lodged, a party's ability to challenge the authenticity of the document on appeal is waived. Wright & Miller, § 2722 n.44. In sum, considering the totality of events -- the locker room incident, the broomstick incident, the rubbing incidents, and the allegation by Pirolli that he was placed in a large plastic container -- there is sufficient evidence of a hostile work environment to withstand summary judgment. C. There Was Evidence that Pirolli's Employer Failed to Take Prompt and Adequate Remedial Action in Response to Known Harassment. The district court held that the employer could not be held liable because it disciplined one employee after Pirolli complained to Selser.<12> In general, an employer is liable for co-worker harassment under a negligence theory of agency if management-level employees knew or had constructive knowledge of the harassment and failed to take prompt and adequate remedial action. See Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999); Andrews, 895 F.2d at 1486. Remedial action is "adequate" if it is "reasonably calculated to prevent further harassment." Knabe v. Boury Corp., 114 F.3d 407, 411 n.8 (3d Cir.1997). Implicit in this standard is a requirement that some remedial action be undertaken. Id. at 412-14; see also Hathaway v. Runyon, 132 F.3d 1214, 1224 (8th Cir. 1997) ("It is not a remedy for the employer to do nothing...."); Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (employer's remedial obligation not discharged if no remedy is undertaken). In this case, there was evidence, not discussed by the district court, that Pirolli complained about the more severe incidents (namely the locker room incident) committed by different employees to Selser. According to Pirolli, Selser never took any action in response to his complaint. R.22, Exh. A (Pirolli Dep.) at 51. Thus while Selser apparently addressed one complaint by Pirolli regarding a comment by one supervisory employee, the evidence indicates that he ignored a complaint of far more serious harassment by wholly different employees. In other words, there was evidence that no remedial action, adequate or otherwise, was undertaken with regard to harassment by the co-workers. This evidence at least creates a fact issue as to whether the employer took remedial action reasonably calculated to end co-worker harassment. CONCLUSION For the foregoing reasons, we urge this Court to reverse the judgment of the district court and remand the case for further proceedings. GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF BAR MEMBERSHIP I hereby certify that I am employed by and represent in this case the U.S. Equal Employment Opportunity Commission, an agency of the federal government. It is my understanding that, as an attorney representing the federal government, I need not become a member of the bar of this Court in order to appear in this matter. CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7). This brief contains 6,673 words. CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, Federal Express, postage prepaid, on this 25th day of January, 2001, to the following: Lee I. Raiken, Esq. Joanne W. Rathgeber, Esq. 1600 Locust Street 111 East Court Street Philadelphia, PA 19103-6305 Doylestown, PA 18901 _____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 January 25, 2001 1 The Commission takes no position on any other issue raised in this appeal. 2 "R.*" refers to the docket entry number in the district court docket sheet. 3 An IQ (Intelligence Quotient) is "an estimate of a person's current level of functioning as measured by the various tasks required in a test." Gary Groth-Marnat, Handbook of Psychological Assessment 153 (3d ed. 1997). An IQ of 75 places Pirolli in roughly the bottom five percent of the population when compared to his age-related peers. Id. at 154-55. 4 The fact that the two relevant characteristics of Pirolli - his disability and his gender - are traits protected by two different statutes does not undercut his ability to pursue his claim under the ADA and Title VII. See, e.g., McGrenaghan v. St. Denis Sch., 979 F. Supp. 323, 326-27 (E.D. Pa. 1997) (woman with disabled child may proceed under both ADA and Title VII, where plaintiff alleges discrimination against a subclass of women who have children with disabilities); Arnett v. Aspin, 846 F. Supp. 1234, 1240 (E.D. Pa. 1994) (no reason why plaintiff, who alleged discrimination against older women, cannot proceed on "sex-plus" theory even though the additional characteristic of age is also protected by a separate statute). 5 Courts have generally limited "sex-plus" cases to those in which the additional characteristic is either an immutable characteristic or a constitutionally-protected activity, such as marriage. See Jefferies, 615 F.2d at 1033 (noting hair length regulations for males falls into neither category). Pirolli, who is male and who has mental retardation, obviously has alleged discrimination based on immutable characteristics. 6 According to Selser, Twaits was able to perform her job, but was a bit slow in doing so. 7 Two commentators have observed that male harassers often "invoke the quintessentially male imagery of forcible penetration through threats of rape and scenarios of simulated oral and anal sodomy in a manner that expressly depicts the harasser's manhood and superior masculinity as the source of his power to dominate the target." Hilary S. Axam & Deborah Zalesne, Simulated Sodomy and Other Forms of Heterosexual 'Horseplay:' Same Sex Sexual Harassment, Workplace Gender Hierarchies, and the Myth of the Gender Monolith Before and After Oncale, 11 Yale J.L. & Feminism 155, 202 (1999). Axam and Zalesne go on to cite fourteen cases involving actual, simulated, or threatened anal sodomy of a male employee by male co-workers. Id. at 202 n.283 (citing cases). See also Richard F. Storrow, Same-Sex Harassment Claims After Oncale, 47 Am. U. L. Rev. 677 (1998) (arguing that causation analysis should focus on conduct, particularly where "the victim has been subjected to willful exposure of the harasser's genital or to violent acts of simulated sexual activity"). 8 "Rape" is how Pirolli referred to the incident. R.22, Exh. A (Pirolli Dep.) at 49. 9 The district court acknowledged that Pirolli subjectively found the conduct abusive. Pirolli, 1999 WL 1065214, at *4. 10 The McWilliams plaintiff also had "a learning disability that arrested his cognitive and emotional development." McWilliams, 72 F.3d at 1193. The plaintiff's disability did not factor into the court's analysis, presumably because the plaintiff, who was subjected to harassment before the effective date of the ADA, did not bring a claim under the ADA. 11 The McWilliams court ultimately rejected the Title VII claim on the grounds that a hostile work environment claim "does not lie where both the alleged harassers and the victim are heterosexuals of the same sex." McWilliams, 72 F.3d at 1195. The Martin court, relying on McWilliams, reached the same holding, though it allowed plaintiff's claims under FELA and state tort law to go forward. Martin, 926 F. Supp. at 1050. The Goluszek court rejected plaintiff's harassment claim because, it held, Congress did not intend to prohibit male-on-male harassment in a male-dominated environment. Goluszek, 697 F. Supp. at 1456. After the Supreme Court's clarification of same-sex harassment in Oncale, the holdings of McWilliams, Martin, and Goluszek are no longer good law. 12 The discipline was issued against a supervisory employee named Eric who told Pirolli: "you weren't paid to think." R.22, Exh. G (Selser Dep.) at 16.