No. 07-17221 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PROSPECT AIRPORT SERVICES, INC., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the District of Nevada, No. 2:05-01125-KJD-GWF The Honorable Kent J. Dawson ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . 17 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 BECAUSE A REASONABLE JURY COULD FIND PROSPECT DID NOT TAKE PROMPT AND EFFECTIVE ACTION TO REMEDY PERSISTENT SEXUAL HARASSMENT THAT SUBJECTED LAMAS TO A HOSTILE WORK ENVIRONMENT AND ALTERED HIS CONDITIONS OF EMPLOYMENT, SUMMARY JUDGMENT MUST BE REVERSED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 1. Evidence of Persistent Unwanted Sexual Advances And Frequent Teasing By Coworkers Is Sufficient To Demonstrate That Lamas Endured An Objectively Hostile Work Environment At Prospect. . . . . . . . . 20 2. The Record Demonstrates That Prospect Failed To Take Prompt And Effective Remedial Action In Response To Lamas's Repeated Complaints Of Sexual Harassment. . . . . . . . . . . . . . . . . . . . . . . 35 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . 41 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . 25 Craig v. M & O Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007). . . . . . . . . . . . . . . . . . 21, 22, 24 Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027 (9th Cir. 2005). . . . . . . . . . . . . . 20, 22, 25, 29, 32 Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998). . . . . . . . . . . . . . . . 20, 27, 29, 31 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). . . . . . . . . . . . 24, 25, 28, 37, 38, 40 Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . 21, 37 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . . 22, 24, 26, 35, 40 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . . . . . . . 23, 40 STATUTES 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Civil Rights Act of 1991, 42 U.S.C. § 1981a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . 1 RULES AND REGULATIONS Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Fed. R. App. P. 32(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . 42 Cir. R. 28-2.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Cir. R. 30-1.6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION This action was authorized and commenced pursuant to section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Excerpts of Record, volume 2 (ER2) at 118 (R.1 at 2).<1> The district court had jurisdiction pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. Id. Final judgment was entered September 27, 2007. ER1 at 1 (R.46). The Equal Employment Opportunity Commission (EEOC or Commission) timely filed a notice of appeal on November 20, 2007. ER2 at 1 (R.47). See Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the evidence on summary judgment would support a jury finding that Prospect Airport Services failed to take prompt and effective action to remedy persistent unwelcome sexual advances and frequent teasing that subjected Rudolpho Lamas to an objectively hostile work environment and altered his conditions of employment? STATEMENT OF THE CASE In this action to enforce Title VII, 42 U.S.C. §§ 2000e et seq., the EEOC filed suit against Prospect Airport Services, Inc. (Prospect) in the United States District Court for the District of Nevada, on September 13, 2005. ER2 at 117 (R.1). The complaint alleges that Prospect, in violation of Title VII, failed to take timely and appropriate action to correct and prevent sexual harassment that subjected Rudolpho Lamas to a hostile work environment. ER2 at 117-18 (R.1 at 1-2). Following discovery, Prospect moved for summary judgment, which the EEOC opposed. See R.31; R.32. On September 27, 2007, the district court granted summary judgment, ER1 at 13 (R.45 at 12), and entered final judgment for Prospect. ER1 at 1 (R.46). The EEOC timely filed a notice of appeal on November 20, 2007. ER2 at 1 (R.47). See Fed.R.App.P. 4(a)(1)(B). STATEMENT OF FACTS Rudolpho Lamas worked for Prospect as a Passenger Service Assistant (PSA), assisting airline passengers with wheelchair services, at the Las Vegas Airport. ER2 at 21 (R.32-2 at 2 2). Prospect hired Lamas in April 2002, and soon promoted him to a lead PSA. ER2 at 21 (R.32-2 at 2 1-2). During the fall of 2002, a married coworker, Silvia Munoz, began to pursue Lamas romantically. See ER2 at 22-27 (R.32-2 at 3-8 13-14, 19-20, 28, 32, 38, 55, 56, 58). In around November 2002, Munoz gave Lamas the first of several notes, described as a "flirtatious come-on." ER2 at 22 (R.32-2 at 3 13-14). "The basic idea of the letter," Lamas recalled, "was that she wanted to go out," and "to express something to the effect of how she had turned on or something along that line." ER2 at 44 (R.31-2 at 10, Lamas dep. 33).<2> Lamas informed assistant general manager Patrick O'Neill that a coworker had expressed romantic interest in him and sought advice on how to handle the situation. ER2 at 22-23 (R.32-2 at 3-4 16-17). O'Neill advised Lamas to let the person know if he was not interested, and to inform management if the conduct continued "'and we will take care of it.'" ER2 at 44, 30 (R.31-2 at 10, Lamas dep. 32; R.32-2 at 11 81a). Lamas discarded Munoz's note. ER2 at 23 (R.32-2 at 4 18). When she approached him within the next day or two and asked if he had read it, he replied that he was "not interested" and was "just not looking for any kind of thing like that right now." ER2 at 44 (R.31-2 at 10, Lamas dep. 33). Undeterred, a few days later Munoz gave Lamas a second note, the gist of which was to convince him that she was serious about the message conveyed in her first note. ER2 at 23 (R.32-2 at 4 19-20). Without responding to Munoz, Lamas discarded her second note as well. ER2 at 23 (R.32-2 at 4 22-23). Around the same time, Munoz handed Lamas a photograph of herself that was "a head and shoulder shot with a pressing together of the breasts." ER2 at 49 (R.31-2 at 17, Lamas dep. 61-62). Lamas felt "irritated" that Munoz "was bothering me, pestering me," and gave the photo back to her. ER2 at 50 (R.31-2 at 18, Lamas dep. 64). Lamas told Munoz he did not want the picture and said loudly, "'I told you already I'm not interested.'" ER2 at 50 (R.31-2 at 18, Lamas dep. 65-66). When hired by Prospect in April 2002, Lamas signed a copy of Prospect's one-page "Company Policy on Sexual Harassment," which "expressly prohibits any form of sexual harassment." ER2 at 68 (R.31-4 at 7). In pertinent part, the policy defines sexual harassment as "[c]onduct of a sexual nature which is unwelcome or unwanted, whether verbal or physical, . . . [that] substantially interferes with an individual's employment or creates an intimidating, hostile or offensive working environment." Id. "Some examples of sexual harassment," the policy explains, "may include unwanted sexual advances; ... sexually explicit language or comments; or the display in the work place [sic]." Id. The policy's "Complaint Procedure" instructs that "[a]ny incident, which may be a violation of this policy, should be promptly reported to your supervisor." Id. According to the policy, Prospect "will investigate each complaint in a prompt and proper fashion" and, if found to have merit, "will take appropriate disciplinary action against the offending employee." Id. Ronald Claypool, Prospect's manager of human resources (HR), testified that company policy requires an "immediate review" of allegations of sexual harassment "to determine if there is sexual harassment with the idea in mind to stop the harassment." ER2 at 8 (R.50/35-4 at 15, Claypool dep. 55).<3> A supervisor who receives a report of harassment from an employee, Claypool testified, "should report it to the site manager," preferably in writing, and the manager would then conduct the requisite "review." ER2 at 8 (R.50/35-4 at 15, Claypool dep. 56-57). Prospect does not "have any type of policy ... training ... or procedures" for harassment investigations, and provides managers with no specific "guidance as to what types of procedures ... to follow in ... investigating a sexual harassment complaint." ER2 at 11 (R.50/35-4 at 20, Claypool dep. 74). Prospect gives managers "just what's written on the policy itself that implies that we will, in fact, do immediate review to take remedial action to stop any harassment." Id. Prospect did not expressly require written documentation of harassment investigations, but Claypool stated that "the preferred policy is that sexual harassment investigations be reduced to writing." ER2 at 8 (R.50/35-4 at 15, Claypool dep. 57). Similarly, while Prospect had no set procedure for site managers to report allegations of harassment to corporate headquarters, the "unofficial policy" was for managers to notify Claypool of "all types of sexual harassment allegations." ER2 at 9-10 (R.50/35-4 at 16-17, Claypool dep. 59-60, 63-64). In several conversations around late November and December 2002, Lamas told his immediate supervisor, Ronda Thompson, that a female coworker was making unwanted advances. See ER2 at 30 (R.32-2 at 11 83-89). At first, Thompson recalled, Lamas refused to "tell me who it was - he didn't want to get [her] in trouble," but "a few days later" he disclosed that "it was Silvia Munoz" and described an "obscene picture of her ... naked and holding her breast" that Munoz had shown him. ER2 at 70 (R.31-4 at 9, Thompson aff. 1). According to Thompson, Lamas "seemed like he was disturbed by it." Id. "The first couple time[s] he felt like it was an admirer," Thompson stated, but "then he said he kept getting phone calls and letters and felt like she was harassing him." ER2 at 71 (R.31-4 at 10, Thompson aff. 2). During "a two or three day period," Lamas approached Thompson "several times" to discuss the matter and, after Lamas had come to her around four times about Munoz, Thompson "told him he needed to report it." Id. Thompson did not document these conversations with Lamas or initiate an investigation of his complaints. ER2 at 71-72 (R.31-4 at 10-11, Thompson aff. 2-3). A short time later, in December 2002, Munoz gave Lamas a third note, ER2 at 24 (R.32-2 at 5 32), which reads as follows: Dear Rudolpho, I guess this is the only form of communication we have. I try [sic] to call you one night about three weeks ago when I was thinking of you. They said that you moved! I've been thinking of you a lot lately. I've been having crazy dreams about us in the bath tub yeah in the bath tub. Must be my aunt's cooking. (Ha, Ha). I've been wanting to ask you, but you have been under a lot of stress with Southwest and work. It is time to unwind and be stress free. I give out very good bath wash and body massage. It sounds a little crazy but everyone has a little craziness in them! I would love to see you on and off. Yes, I've been thinking about you more ways then [sic] one. It seems to me I cannot get you off my mind no matter how hard I try! I hope you will consider? I'll take care of you, you take care of me! Please let me know soon NOT later! Seriously, I do want you sexually and romantically! Con amor (with love), Silvia ER2 at 62 (R.31-4 at 1). In January or February 2003, about three weeks after his last meeting with Thompson, Lamas met with general manager Dennis Mitchell. ER2 at 23-24, 30 (R.32-2 at 4-5, 11 36, 39, 93). Mitchell oversaw Prospect's operations at the Las Vegas Airport and had "very broad" responsibilities, including authority to hire, fire, demote, and discipline employees. See ER2 at 7 (R.50/35-4 at 12, Claypool dep. 42-43). Lamas approached Mitchell, handed him the most recent letter he had received from Munoz, and asked him to read it. ER2 at 74 (R.31-4 at 13, Mitchell aff. 1). Mitchell recalled that Lamas "had a smile on his face and said it was written by a coworker." Id. Mitchell characterized Munoz's letter as "suggestive and/or flirtatious," and he "thought it was sexual harassment." ER2 at 75 (R.31-4 at 14, Mitchell aff. 2). Lamas told Mitchell that a female coworker "was attracted to him and had asked him out," and "explained that he had refused the invitations but the employee continued to pursue him." ER2 at 89 (R.31-5 at 21, Mitchell statement). Mitchell asked Lamas "why he was telling me this story of what sounded to me as if he had been flattered by the attention from this female," and "told him that I was not interested in employee personal matters." Id. In response, Lamas requested that Mitchell "speak to Ms. Munoz and ask her to please stop sending him these letters and making advances towards him." ER2 at 99 (R.31-6 at 20, Mitchell dep. 70); see also ER2 at 75 (R.31-4 at 14, Mitchell aff. 2). Mitchell asked Lamas "several times if he was sure he did not want to file formal charges of sexual harassment and each time he declined." ER2 at 89 (R.31-5 at 21, Mitchell statement). Although Lamas was smiling during their meeting, Mitchell "realized that he was serious; that he wasn't gloating over this letter; that he seriously wanted [Mitchell] to talk to Silvia about this case ... that he really wanted [Mitchell] to talk to her; that he wanted this to stop." ER2 at 100 (R.31-6 at 21, Mitchell dep. 74- 75). Lamas told Mitchell that the situation with Munoz had "gotten to the point where [he was] hurt by it ... because other co-workers were now saying things, and [he] was starting to become embarrassed." ER2 at 25 (R.32-2 at 6 44). Mitchell explained to Lamas that he "was reluctant to speak to Ms. Munoz since [Lamas] did not want to file charges" and he "considered the matter as personal between these two individuals," but "finally agreed" to speak to Munoz "as a favor" to Lamas. ER2 at 89 (R.31-5 at 21, Mitchell statement). A couple of days after meeting with Lamas, Mitchell encountered Munoz when she was clocking in to work and brought her into his office. ER2 at 100-101 (R.31-6 at 21-22, Mitchell dep. 76-77). Mitchell also asked supervisor Ronda Thompson, who "just happened to be in the area also," to join them "for witness purposes only." ER2 at 101 (R.31-6 at 22, Mitchell dep. 77-78). Mitchell told Munoz "that it had been brought to [his] attention that she was pursuing ... a male coworker ... [who] wanted these advances to stop." ER2 at 101 (R.31-6 at 22, Mitchell dep. 78). According to Mitchell, id., he instructed Munoz that it has to stop in the workplace. It's not allowed. What you do in your private life is your business off the airport. But when it's been brought to my attention, I've been asked to tell you to stop. In response, Munoz "shook her head and agreed okay as if she realized what [Mitchell] was talking about." Id. Neither Mitchell nor Munoz mentioned Lamas by name, but Munoz indicated that "it's the other way around," suggesting that Lamas was pursuing her. ER2 at 101 (R.31-6 at 22, Mitchell dep. 79-80). Munoz provided no specific information to support this suggestion, and Mitchell did not inquire further. Id. Mitchell did not ask Munoz about the letter Lamas had shown him, or tell her not to pass him any more letters. ER2 at 101 (R.31-6 at 22, Mitchell dep. 80). During the conversation, the message Mitchell conveyed to Munoz was: [I]f she wants to pursue Mr. Lamas she should do it on her own time and not on Prospect time. ... Whatever goes on outside of work is your business. But when it comes to the workplace and it's brought to my attention I have to address it. Id. Mitchell cautioned Munoz that if he heard her conduct was "continuing, [he] would have to take action," but did not "say specifically what action." ER2 at 103 (R.31-6 at 24, Mitchell dep. 86). Although Thompson was present during Mitchell's meeting with Munoz, she did not inform him that Lamas had previously come to her on several occasions to report unwanted advances from Munoz. ER2 at 102-103 (R.31-6 at 23-24, Mitchell dep. 84-86). Nor did Thompson tell Mitchell that Lamas had described receiving a suggestive photograph from Munoz. ER2 at 103 (R.31-6 at 24, Mitchell dep. 85). Mitchell did not speak with assistant general manager O'Neill or any other supervisors about the matter, and conducted no investigation. ER2 at 100, 102, 104 (R.31-6 at 21, 23, 25, Mitchell dep. 76, 84, 89). Mitchell did not take notes or otherwise memorialize either his conversation with Lamas or his meeting with Munoz, and failed to document the incident in either employee's personnel file. ER2 at 100, 102 (R.31-6 at 21, 23, Mitchell dep. 75-76, 84). Mitchell never notified Prospect's HR department or corporate headquarters that Lamas had approached him to report unwanted sexual advances by a coworker, or that he had met with Munoz about the matter. ER2 at 100, 102, 104 (R.31-6 at 21, 23, 25, Mitchell dep. 75, 84, 90). HR manager Claypool acknowledged that he first learned of Lamas's internal complaints about Munoz when Prospect received notice from the EEOC that Lamas had filed a formal charge of discrimination in June 2003. ER2 at 12 (R.50/35-4 at 21, Claypool dep. 81). At the time Lamas complained repeatedly about harassment to Thompson, O'Neill, and Mitchell in 2002-2003, Claypool testified, "it was probably an acceptable practice" at Prospect not to document, report, or investigate further if the complaining employee suggested "that he was going to handle it himself."<5> ER2 at 13 (R.50/35-4 at 22, Claypool dep. 83-84). Claypool further acknowledged that Prospect had no "policy or procedures that allowed employees to bypass the supervisor or the general manager and report sexual harassment complaints directly" to HR, and said he was "currently evaluating" whether to include such an alternative reporting mechanism in the harassment policy. ER2 at 13, 14 (R.50/35-4 at 22, 25, Claypool dep. 85, 97). After speaking with Munoz on a single occasion, Mitchell never followed up in any manner to find out whether she had stopped harassing Lamas, and made no effort otherwise to ensure that his response to Lamas's complaint was effective. ER2 at 102, 104 (R.31-6 at 23, 25, Mitchell dep. 83, 90). According to Lamas, it was not. Even after he spoke with Mitchell, Lamas recounted, Munoz "would flirt" and "say things when she passed by." ER2 at 51 (R. 31-2 at 19, Lamas dep. 67). "[E]very time she saw me," Lamas recalled, "she would do something," either making "some gesture," or saying, "'Hey, hey'" or "'Whew, whew.'" Id. "Sometimes in passing," Munoz would make faces at Lamas, licking her lips or "foul stuff like that, blow job imitations." ER2 at 56 (R. 31-3 at 6, Lamas dep. 113). Munoz "would often say things like, 'I was thinking of you,'" or "'You want to have some fun,'" or "'You want to get together.'" ER2 at 51 (R.31-2 at 19, Lamas dep. 70). Lamas described her behavior as a "constant irritation" that occurred "[a]t least" on a daily basis. ER2 at 51 (R.31-2 at 19, Lamas dep. 67-68). He felt "pressure" from her "unwanted advances," and considered "all of it" to be "of a sexual nature." Id. "Whatever she said to me offended me," Lamas explained, because "I was not interested in the woman." ER2 at 51 (R.31-2 at 19, Lamas dep. 67). In mid-May 2003, Munoz twice asked Lamas to go out with her. ER2 at 27 (R.32-2 at 8 56). One of these invitations occurred while Lamas was servicing a passenger, and Lamas wrote a note documenting the incident, which the passenger signed. ER2 at 67 (R.31-4 at 6). On another occasion, in late winter or spring of 2003, Munoz followed Lamas out of the Prospect office where he had clocked in and called, "'Rudolpho, you forgot something.'" ER2 at 55 (R.31-3 at 5, Lamas dep. 110). Lamas had forgotten to take the form on which he would record his daily passenger pick-ups, and Munoz had grabbed one and filled it out for him. ER2 at 56 (R.31-3 at 6, Lamas dep. 111). When he turned, Lamas recalled, "she was standing right beside me ... and kissed me on the cheek" when he leaned over to retrieve the form. ER2 at 55-56 (R.31-3 at 5-6, Lamas dep. 110-12). Lamas "said, 'Oh, God,' and walked away." ER2 at 55 (R.31-3 at 5, Lamas dep. 110). Lamas recalled that Munoz would also convey messages through other coworkers, who would tell him "irritating things," like: "[S]he wants me. She wants to go out with me. She wants to date." ER2 at 46-47 (R.31-2 at 14-15, Lamas dep. 50-51). Other such messages were: "'Silvia tells me to tell you she loves you.' 'Silvia says no matter what they say, she's going to get you.' 'Silvia wants you to know that she still likes you.'" ER2 at 48 (R.31-2 at 16, Lamas dep. 56). Lamas found these comments "hurtful" and "embarrassing," id., and described his emotional reaction as follows: I was always hurt ... [and] pestered by it. I was bothered. It was just a constant pressure on me. ... It just went on and on. And nobody would do anything. I couldn't get help. Nobody would listen. I mean, there was a time I just didn't even want to talk to management at all because I thought they were shutting me off. ... There was [sic] people wondering if I was gay. There was always some kind of commentary from coworkers. ER2 at 52 (R.31-3 at 20, Lamas dep. 167). Although Munoz disputes Lamas's account of events in some respects, she admits having pursued a romantic or sexual relationship with him during 2002 through May 2003. See ER2 at 79-81 (R.31-4 at 17-20, Munoz aff. 1-4). Munoz concedes that she continued to pursue Lamas even after "Dennis Mitchell told [her] to stop asking Rudolpho out," and acknowledges that "it was not appropriate to ask him out" in May 2003. ER2 at 79-80 (R.31-4 at 18-19, Munoz aff. 2-3). Munoz "never had sexual harassment training," and explained that she did not consider her conduct toward Lamas to be sexual harassment "because I liked him."<6> ER2 at 80 (R.31-4 at 19, Munoz aff. 3). HR manager Claypool conceded that if Munoz continued to pursue Lamas after having been counseled by general manager Mitchell, her conduct would "have been a violation of Prospect's policy regarding sexual harassment." ER2 at 15 (R.50/35-4 at 26, Claypool dep. 100). According to Lamas, from January through June 2003, he complained "consistently" to supervisors Ronda Thompson and Robert Gonzales about Munoz's continuing harassment, although he did not recall how many times, or precisely when, he complained.<7> See ER2 at 53-54 (R.31-2 at 23-24, Lamas dep. 83-88). Lamas also testified that he spoke with assistant general manager Patrick O'Neill once or twice during this period and mentioned that Mitchell and Thompson had spoken with Munoz "'[b]ut she just won't quit.'" ER2 at 53 (R.31- 2 at 23, Lamas dep. 86). In response, Lamas recalled, O'Neill told him, "'Well, you should walk around singing to yourself,' ... and he quoted the song lyrics, 'I'm too sexy for my shirt,' or something like that." Id. O'Neill's reaction led Lamas to "believe that Patrick just took it as a joke," so Lamas chose to bring his concerns instead "to the other two people that I thought were handling it." ER2 at 54 (R.31- 2 at 24, Lamas dep. 87). Lamas continued to do his job "to the best of [his] ability," but felt the situation with Munoz adversely affected his performance. ER2 at 57 (R.31-3 at 7, Lamas dep. 115-16). According to Lamas, I did the best job I was capable of doing, given what I was going through. ... But as a [PSA], I believe my job is to cheerfully serve the passengers ... [b]ecause ... it's a customer-service-related job. So if I'm, you know, having a bad day, sometimes customers may pick up on that [and] in that sense, it interfered with my ability to perform the job up to the standard that I wanted .... Id. In March 2003, Prospect demoted Lamas from his position as lead PSA, citing "complaints about [his] job performance and negative attitude towards agents as well as passengers." See ER2 at 86 (R.31-5 at 15). Lamas filed a charge with the EEOC and the Nevada Equal Rights Commission in June 2003, alleging sexual harassment and retaliation. See ER2 at 82-83 (R.31-5 at 1-2). A few weeks later, Prospect fired Lamas in response to a customer complaint that he had refused to provide wheelchair service to a passenger, causing the passenger and three companions to miss their flight. See ER2 87-88 (R.31-5 at 18-19). On July 8, 2003, Lamas amended his EEOC charge to allege retaliatory discharge. ER2 at 84-85 (R.31-5 at 3-4). The EEOC determined that Lamas had been subjected to a sexually hostile work environment and, when conciliation efforts failed, sued Prospect for discrimination in violation of Title VII.<8> See ER2 at 117-18 (R.1 at 1-2). Prospect moved for summary judgment solely on the ground that Munoz's alleged harassment was not sufficiently severe or pervasive to create a sexually hostile work environment for Lamas. See ER2 at 38 (R.31 at 21) ("[F]or purposes of this motion, Prospect challenges only the sufficiency of evidence regarding whether the conduct about which Lamas complains rises to the level of being actionable under Title VII," i.e., "sufficiently 'pervasive' or 'severe' so as to alter the terms and conditions of Lamas' employment and create an abusive work environment.") (emphases omitted). With respect to "the sufficiency of its own response to the complaints of Mr. Lamas," Prospect conceded that "disputed issues of fact" precluded summary judgment on "that element of [the EEOC's] proof." ER2 at 5 (R.37 at 2). DISTRICT COURT DECISION The district court was not convinced "that the alleged harassment rises to a level sufficiently severe and pervasive to sustain [a] Title VII claim," and granted summary judgment for Prospect. ER1 at 10 (R.45 at 9). In the court's view, the alleged harassment "did not alter the [c]onditions of Lamas's employment" and was not "sufficiently severe or pervasive to have created an intimidating, hostile, or offensive working environment." ER1 at 11 (R.45 at 10). Notwithstanding Prospect's concession that "disputed issues of fact" existed as to "the sufficiency of its own response to [Lamas's] complaints," see ER2 at 5 (R.37 at 2), moreover, the court further held that "the EEOC ... failed to demonstrate that Prospect knew or should have known of Munoz's alleged harassment but did not take adequate steps to address it." ER1 at 10 (R.45 at 11). SUMMARY OF ARGUMENT Summary judgment was improper. Viewing the record under the correct legal standards, the evidence would support a jury finding that Munoz's persistent unwanted advances, compounded by the teasing of other coworkers, subjected Lamas to a sexually hostile work environment. As Prospect has properly conceded, moreover, the record presents a genuine factual dispute about whether, notwithstanding Lamas's repeated complaints to management, the company failed to respond effectively to prevent and remedy the harassment. In holding to the contrary, the district court misapplied the law and misstated the record. In multiple respects, the court applied incorrect legal standards to assess the viability of the EEOC's hostile environment claim. The court imposed a standard of egregious conduct that the law does not require, and effectively revived a requirement of emotional harm that the Supreme Court has soundly rejected. The court further erred in failing to appreciate the cumulative effect on Lamas of multiple incidents of harassment occurring, often on a daily basis, over a period of several months. In addition, the court improperly conflated two distinct elements of a prima facie hostile environment claim - the requirement that harassment be unwelcome and the requirement that it be sufficiently severe or pervasive to alter the work environment - and failed to consider the harassment from the perspective of a reasonable person in the victim's position. Finally, the court placed undue emphasis on the way Prospect managers became aware that Lamas was enduring unwanted advances. Knowledge of discriminatory harassment, acquired in whatever form, activates the employer's responsibility to take reasonable steps to end the harassment. Furthermore, virtually every "fact" relied on by the district court to support its ruling reflects a departure from fundamental summary judgment principles, which require the court to view the evidence in the light most favorable to Lamas and the EEOC. The court repeatedly mischaracterized the record, failed to draw reasonable inferences supporting Lamas and the EEOC, treated contested assertions as undisputed facts, and effectively imposed on the EEOC evidentiary burdens that the law does not require. For all these reasons, the EEOC urges this Court to reverse summary judgment and remand for trial on the merits. STANDARD OF REVIEW This Court reviews "de novo the district court's grant of summary judgment." Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027, 1033 (9th Cir. 2005). "Viewing the evidence in the light most favorable to the nonmoving party," here, the EEOC, the Court "must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Id. In "considering an order granting summary judgment," moreover, this Court will "assume ... that as to all disputed facts, [the EEOC's] version is correct." See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 1998). ARGUMENT BECAUSE A REASONABLE JURY COULD FIND PROSPECT DID NOT TAKE PROMPT AND EFFECTIVE ACTION TO REMEDY PERSISTENT SEXUAL HARASSMENT THAT SUBJECTED LAMAS TO A HOSTILE WORK ENVIRONMENT AND ALTERED HIS CONDITIONS OF EMPLOYMENT, SUMMARY JUDGMENT MUST BE REVERSED. 1. Evidence of Persistent Unwanted Sexual Advances And Frequent Teasing By Coworkers Is Sufficient To Demonstrate That Lamas Endured An Objectively Hostile Work Environment at Prospect. A "prima facie case of a hostile work environment," in violation of Title VII, requires evidence that the claimant: (1) was subjected to verbal or physical conduct of a sexual nature; (2) this conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007). There is no dispute that Munoz's persistent romantic overtures, which Lamas rejected and reported to his superiors, subjected him to "conduct of a sexual nature" that was "unwelcome." See id. (evidence of unwanted sexual advances "clearly satisfies the first two prongs" of the prima facie case because "behavior was explicitly sexual in nature, and unwelcome, as [plaintiff] repeatedly rebuffed [supervisor's] advances and eventually reported his conduct to the company"). Thus, in seeking summary judgment, "Prospect challenge[d] only the sufficiency of evidence regarding whether the conduct about which Lamas complains rises to the level of being actionable under Title VII," see ER2 at 38 (R.31 at 19), i.e., whether the alleged harassment was sufficiently severe or pervasive to alter his conditions of employment and create a hostile work environment. To meet this standard, "[t]he working environment must both subjectively and objectively be perceived as abusive." Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Lamas's testimony about his reaction to Munoz's advances and his coworkers' teasing, see ER2 at 51, 60 (R.31-2 at 19, R.31-3 at 20, Lamas dep. 67-68, 167-68); his internal complaints and requests that management take action to stop the harassment, see ER2 at 100 (R.31-6 at 21, Mitchell dep. 74-75); ER2 at 45, 51, 59 (R.31-2 at 12, 19, R.31-3 at 9, Lamas dep. 41, 71, 126); and his EEOC charge, see ER2 at 82 (R.31-5 at 1), are "more than sufficient" to demonstrate that he found the environment "subjectively offensive." See Craig, 496 F.3d at 1055 (plaintiff's testimony that she felt supervisor's comments and actions "were abusive and made her feel uncomfortable" demonstrated conduct was subjectively abusive); Dominguez-Curry, 424 F.3d at 1036 n.4 (plaintiff presented "sufficient evidence to satisfy the 'subjective hostility' prong of her hostile work environment claim" where she told supervisor she "'did not want to hear'" and "'didn't appreciate [his] rude jokes and felt that he didn't like women in general,'" and "also complained to the EEOC"). "Objective hostility is determined by examining the totality of the circumstances and whether a reasonable person with the same characteristics as the victim would perceive the workplace as hostile." Craig, 496 F.3d at 1055. The Supreme Court has acknowledged that "[t]his is not, and by its nature cannot be, a mathematically precise test," and has suggested a number of relevant factors that "may be taken into account": "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 v. Forklift Systems, Inc., 510 U.S. 17, 22-23 (1993). This inquiry, the Court has emphasized, "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target," since 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." Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81-82 (1998). "Common sense," the Court explained, "and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing ..., and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Id. at 82. By these standards, the EEOC presented evidence sufficient to sustain a jury finding that Lamas endured an objectively hostile or abusive work environment that altered the conditions of his employment. From the fall of 2002 through at least May of 2003, Lamas was subjected to persistent unwanted sexual advances by Munoz. Munoz gave Lamas several notes, including a letter featuring explicit sexual fantasies, and a suggestive photograph highlighting her cleavage. Although Lamas told her directly that he was not interested in a romantic or sexual relationship, Munoz continued her pursuit. Even after Mitchell met with Munoz and told her Lamas had complained about her conduct, Munoz persisted. Whenever Munoz encountered Lamas at work, she made suggestive faces, gestures, noises, or remarks; she once kissed him on the cheek; and she continued to ask him out. Munoz also enlisted other employees to convey messages to Lamas, telling him that Munoz still desired him. Over a period of several months, such conduct often occurred on a daily basis. Lamas felt hurt and embarrassed by the constant pressure, and believed his job performance suffered as a consequence. The district court, in finding insufficient evidence of actionable harassment, misapplied the law and misstated the record in numerous respects. First, the court imposed a standard of egregious conduct that the law does not require. See ER1 at 9 (R.45 at 8) (holding the harassment Lamas endured was not "severe enough to sustain [a] Title VII claim" because it "pales in comparison to other conduct found to be severe enough to create a hostile work environment") (citing cases from other circuits). The Supreme Court has emphasized that the "appalling conduct" and toxic environments found unlawful in some cases "merely present some especially egregious examples of harassment" and "do not mark the boundary of what is actionable." Harris, 510 U.S. at 21. Thus, while "shocking examples" of "more egregious" harassment "amply illustrate a level of conduct that is sufficient" to be actionable, this Court has recognized, "they do not establish minimum behavior." Craig, 496 F.3d at 1056. Consequently, the Court in Craig was "not persuaded that Title VII requires proof of such severe or shocking behavior." Id.; see also Ellison v. Brady, 924 F.2d 872, 877 (9th Cir. 1991) (rejecting "reasoning of other courts which have declined to find Title VII violations on more egregious facts"). This Court has in fact found harassment comparable to that alleged by Lamas sufficiently severe or pervasive to defeat summary judgment in hostile environment cases. See, e.g., Dominguez-Curry, 424 F.3d at 1035 (evidence supervisor "made numerous demeaning comments about women in the workplace," "exhibited hostility to women who took maternity leave, and ... told sexually explicit jokes" was "more than sufficient to create a genuine issue of material fact as to whether [his] conduct was sufficiently severe or pervasive to create a hostile work environment"); Burrell v. Star Nursery, Inc., 170 F.3d 951, 953-55, 957 (9th Cir. 1999) (evidence that supervisor "harassed [plaintiff] by making comments that contained sexual references; saying he wanted to take a trip to the mountains with her; and making comments about how [she] looked and how 'well built' she was" presented "a genuine issue of material fact as to ... whether such conduct created a hostile work environment"); Ellison, 924 F.2d at 874-75, 880-81 (conduct of coworker, who sent plaintiff a "bizarre note," followed by "a long, passionate, disturbing letter" with "repeated references to sex," and a third letter suggesting "that he and [plaintiff] had some type of relationship," was "sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment"). Second, the district court selectively cited Lamas's testimony describing his reactions to the sexual advances and teasing in support of finding that the harassment did not alter the conditions of his employment, and thereby effectively revived a requirement of emotional harm that the Supreme Court has soundly rejected. See ER1 at 11 (R.45 at 10) (quoting Lamas's testimony that he was "irritated" by Munoz; felt she was a "pest" who was "bothering" and "pestering" him; was "hurt" and "embarrassed" by his coworkers' teasing; and remained able to perform the basic requirements of his job despite the harassment, which "just made him less cheerful"). Harassment need not cause psychological injury or demonstrably impair an employee's performance to be actionable under Title VII. Harris, 510 U.S. at 22 ("Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct."). "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive," the Supreme Court held, "there is no need for it also to be psychologically injurious." Id. Third, the court erred in failing to appreciate the cumulative effect of multiple incidents of harassment occurring over a period lasting several months. See ER1 at 10 (R.45 at 9) (finding "pervasiveness or frequency of the alleged harassment" was not "sufficient to withstand summary judgment" because Lamas "admitted that he did not feel Munoz crossed the line of sexual harassment until she wrote the third note" and "fail[ed] to state the number of occasions the alleged flirtatious comments and gestures occurred in passing between January and July 2003"). In this case, "[a]s in most claims of hostile work environment, the discriminatory acts were not always of a nature that could be identified individually as significant events; instead, the day-to-day harassment was primarily significant, both as a legal and as a practical matter, in its cumulative effect." Draper, 147 F.3d at 1108; see id. at 1105-06 (crew supervisor's comments to plaintiff were initially "fairly innocuous" but then "took on a decidedly sexual tone" and "caused her to feel uncomfortable and humiliated"). Prospect supervisor Ronda Thompson recounted that "[t]he first couple time[s]" Munoz showed interest in Lamas, "he felt like it was an admirer," but "then he said he kept getting phone calls and letters and felt like she was harassing him." ER2 at 71 (R.31-4 at 10, Thompson aff. 2). "Discriminatory behavior," this Court has recognized, "comes in all shapes and sizes, and what might be an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of [his] gender." Draper, 147 F.3d at 1109. Even on days or at times when Lamas did not see Munoz, or was not teased by other coworkers, moreover, he experienced the constant pressure and discomfort of his altered work environment, because "a hostile work environment is ambient and persistent, and ... continues to exist between overt manifestations." Id. at 1108 n.1. Finally, the court erred by conflating two distinct elements of a prima facie case of hostile environment harassment: the requirement that harassment be unwelcome, with the requirement that it be sufficiently severe or pervasive to alter the work environment. In finding the harassment was not "sufficiently severe and pervasive to sustain [a] Title VII claim," the court relied on a statement, in a March 2003 letter from Lamas to Dennis Mitchell, "that most men in his circumstances would have 'welcomed' the behavior ... but that due to his Christian background he was 'embarrassed.'" ER1 at 10 (R.45 at 9) (citing R.31-4 at 3). "If sexual comments or sexual advances are in fact welcomed by the recipient, they, of course, do not constitute sexual harassment." Ellison, 924 F.2d at 880 n.13. Because the same conduct, if unwelcome, can create a hostile work environment, this Court has properly emphasized "the importance of considering the victim's perspective" in analyzing these claims. Id. at 880. There is no dispute that Lamas did not welcome Munoz's repeated sexual advances, and thus satisfied the first and second elements of a prima facie case. See infra at 21-22. To hold that, because "most men" would welcome a female coworker's romantic attentions, Title VII does not protect a man who is not interested and instead feels "embarrassed" and "hurt" by the "constant pressure," compounded by the teasing of coworkers, see ER2 at 60 (R.31-3 at 20, Lamas at 167), would "codify prevailing sexist prejudices" and frustrate congressional intent. See Ellison, 924 F.2d at 880. Apart from applying incorrect legal standards to assess the viability of the EEOC's claim, virtually every "fact" relied on by the district court to support its ruling reflects a departure from fundamental summary judgment principles. This Court has not hesitated to reverse in similar circumstances. See, e.g., Dominguez- Curry, 424 F.3d at 1035-36 (reversing summary judgment on whether supervisor's frequent sexist remarks and crude jokes were "sufficiently severe or pervasive to create a hostile work environment" because district court "failed to view the evidence in the light most favorable to [plaintiff]," "erred in disregarding ... evidence about the frequency of [supervisor's] discriminatory remarks," "inappropriately weighed [plaintiff's] credibility," and "erroneously disregarded evidence" supporting her claim); Draper, 147 F.3d at 1109 (reversing summary judgment on hostile environment claim because district court "ignored evidence offered by [plaintiff] and failed to view" evidence "in the light most favorable to her"). For example, in finding the harassment insufficiently pervasive to create a hostile environment, the court faulted Lamas for failing to quantify precisely how frequently he was subjected to suggestive comments, gestures, and teasing by Munoz and other coworkers. See ER1 at 10 (R.45 at 9). In so finding, however, the court improperly ignored testimony that such incidents occurred "[c]onstantly," and "[a]t least" on a daily basis. ER2 at 51 (R.31-2 at 19, Lamas at 68). Lamas testified that "every time" Munoz saw him, "she would do something" flirtatious, and that "all of it" "was of a sexual nature."<9> ER2 at 51 (R.31-2 at 19, Lamas at 67-68). When asked how often he received a "verbal message" from Munoz "through co-workers," Lamas replied: "For some period of time, it was happening daily." ER2 at 46-47 (R.31-2 at 14-15, Lamas at 50-51). See Dominguez-Curry, 424 F.3d at 1036 (district court "erred in disregarding ... evidence about the frequency of [harasser's] remarks," where plaintiff testified that his "sexually explicit jokes 'were like everyday jokes,'" that he "said he would never work for a female 'so many different times,'" and that she "'could write a book about all the different [times]'" he said "'a female could not go out into the field and do the work that a man is required to do'"). Any lack of specificity in Lamas's account, moreover, goes to the weight and credibility of his testimony, "'determinations [that] are within the province of the factfinder at trial'" rather than the court on summary judgment. Id. (citation omitted). Similarly, the district court improperly discounted testimony that Lamas continued to complain to his superiors about persistent harassment after Mitchell met with Munoz, because Lamas could not recall "specific dates and the number of times he spoke with them." ER1 at 12 (R.45 at 11). Lamas testified that he complained to Mitchell and Thompson "[c]onsistently" and "[w]henever I had a chance. It wasn't just Monday, the 4th, Tuesday, the 9th, Wednesday, the 18th. It was just consistently going to work making it clear to him ... [and] to Ronda especially." ER2 at 52 (R.31-2 at 20, Lamas dep. 71). See Dominguez-Curry, 424 F.3d at 1036 (plaintiff's "failure to offer precise dates" of alleged discriminatory remarks or to describe offensive jokes "'with any specificity' ... does not defeat her claim, especially in light of her testimony that the jokes were 'like everyday' occurrences"). His inability to specify the precise number and dates of his complaints - like the denials of his superiors that he continued to complain - go to the weight or credibility of his testimony which, on summary judgment, must be credited. Draper, 147 F.3d at 1105 (on review of summary judgment, Court must "assume ... that as to all disputed facts, [plaintiff's] version is correct"). The district court further erred in taking portions of the evidence out of context, and "spinning" it in a manner that favored Prospect rather than Lamas. For instance, in finding that the "harassment did not alter the conditions of Lamas's employment," the court stated, "Lamas admits that he might have said certain things to Munoz that she might have construed as him wanting to go out with her." ER1 at 11 (R.45 at 10). In fact, Lamas testified that he "never" asked Munoz on a date, pursued her in a relationship, or "came on to her at all." ER2 at 42 (R.31-2 at 8, Lamas dep. 25). When asked if he "ever sa[id] anything to her that she might construe as you wanting to take her out on a date," Lamas responded "[p]erhaps," and described an episode when Munoz apparently overheard and misconstrued a conversation between Lamas and another coworker: [D]uring one of her disruptive times that she bothered me, I asked her why did she even think I was interested. And she explained a conversation that she overheard ... where I was talking with a co-worker about his marriage. And he was telling me that he and his wife had their new baby and he likes to go home after work. He can't wait to get home after work to play with his baby and how married life was. And I was still in mourning after the loss of my wife. So I commented to him that, "That's something I miss as well." ... So I said to him, "I know. It's good to have a nice relationship. But I wouldn't know because I'm alone." And Silvia was standing there. There were three of us standing in the Jetway when I made that comment. And after I made the statement, I felt emotion ... And I started to tear up. And I walked away. Silvia, in one of the other times when she bothered me, she said, "I remember the day that you flirted with me in the Jetway," her words. And I said, "What do you mean?" She said, "Well, remember you said, 'I'm single,' and then you walked away. I went home and asked my husband, 'Does that mean you're flirting with me?' And he told me, 'Yes.'" So in her mind, she saw that as my coming on to her. ER2 42-43 (R.31-2 at 8-9, Lamas dep. 26-27). Lamas emphasized, moreover, that he "never said anything [to Munoz] which should have been considered as a come- on by anyone." ER2 at 43 (R.31-2 at 9, Lamas dep. 28). In portraying this testimony as a damaging "admission" by Lamas, see ER1 at 11 (R.45 at 10), the district court seriously mischaracterized the evidence and crossed the boundary from impartial adjudication to impermissible advocacy. See Dominguez-Curry, 424 F.3d at 1038-39 ("'[it] is not the province of a court to spin such evidence in an employer's favor when evaluating its motion for summary judgment. To the contrary, all inferences must be drawn in favor of the non-moving party.'") (citation omitted). Similarly, the district court cited Mitchell's testimony that Lamas "was 'smiling' when he showed him (Mitchell) the third note," ER1 at 11 (R.45 at 10), yet ignored Mitchell's admission that as his meeting with Lamas progressed, he "realized that [Lamas] was serious; that he wasn't gloating over this letter; that he seriously wanted [Mitchell] to talk to Silvia about this case ... that he really wanted [Mitchell] to talk to her; that he wanted this to stop." ER2 at 100 (R.31-6 at 21, Mitchell dep. 74-75). Nor did the court acknowledge Thompson's admission that when Lamas reported that Munoz had shown him an "obscene picture of her ... naked and holding her breast," he "seemed like he was disturbed by it." ER2 at 70 (R.31-4 at 9, Thompson aff. 1). The court likewise improperly disregarded portions of Lamas's testimony and thereby minimized the effects of the ongoing harassment on his working conditions and job performance. See ER1 at 11 (R.45 at 10) ("Though subjectively Lamas admits that he found the behavior bothering or pestering, and that it made him less cheerful, he does not claim that the alleged behavior interfered with his work or altered the conditions of his employment."). Lamas testified that his performance was "[e]xcellent ... until, you know, this harassing [sic] just started to become a big problem for me." ER2 at 56 (R.31-3 at 6, Lamas dep. 114). Asked to elaborate, Lamas explained: I didn't have the enthusiasm that I always had ... [and] wasn't the cheerful passenger assistant that I had always been. ... [O]verall, I did the best job I was capable of doing, given what I was going through. ... But as a [PSA], I believe my job is to cheerfully serve the passengers with enthusiasm and joy or cheer, to be a happy person. ... [I]t's a customer-service-related job. ... So in that sense, it interfered with my ability to perform the job up to the standard that I wanted to perform the job. But it did not stop me from doing the basic requirement, no. ER2 at 56-57 (R.31-6 at 6-7, Lamas dep. 114-15). In March 2003, Prospect demoted Lamas from his position as lead PSA, citing "complaints about [his] job performance and negative attitude." See ER2 at 86 (R.31-5 at 15). Up until that time, Mitchell testified, Lamas "was a very good employee." ER2 at 104 (R.31-6 at 25, Mitchell dep. 91-92). When asked whether he felt "some of the performance problems that you had towards the end of your employment were the result of this situation involving Silvia Munoz," Lamas responded, "The answer is yes." ER2 at 57 (R.31-3 at 7, Lamas dep. 116). This evidence is more than adequate to demonstrate that the harassment adversely affected Lamas's job performance and working conditions. A jury could find, moreover, that a reasonable person who felt the "constant pressure" of persistent unwelcome advances from an amorous coworker, and was frequently "hurt" and "embarrassed" by the teasing of others, see ER2 at 48, 51 (31-2 at 16, 19, Lamas dep. 56, 67-68), would likewise find it more difficult to perform his job effectively. See Harris, 510 U.S. at 26 ("It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to 'ma[k]e it more difficult to do the job.'") (Ginsburg, J., concurring) (citations omitted). 2. The Record Demonstrates That Prospect Failed To Take Prompt And Effective Remedial Action In Response To Lamas's Repeated Complaints Of Sexual Harassment. The district court further erred in holding, as a matter of law, that "the EEOC ... failed to demonstrate that Prospect knew or should have known of Munoz's alleged harassment but did not take adequate steps to address it." ER1 at 12 (R.45 at 11). The court ignored Prospect's concession that "disputed issues of fact" precluded summary judgment as to "the sufficiency of its own response to the complaints of Mr. Lamas," see ER2 at 5 (R.37 at 2), and reached a contrary result based on a misunderstanding of both the law and the record. The court erred, both legally and factually, in emphasizing, repeatedly, that "Lamas never filed a formal complaint against Munoz, although asked by both his supervisor Thompson, and General Manager Mitchell on separate occasions if he desired to do so." ER1 at 11 (R.45 at 10); see also ER1 at 13 (R.45 at 12) ("There is no evidence on file, in his record, or anywhere at Prospect that Lamas wanted to file a complaint of sexual harassment. Instead, when Lamas was asked whether he wanted to file a claim or complaint for sexual harassment, he replied 'no.'"); id. ("There is no evidence, that Lamas ever filed a claim regarding Munoz's continuing behavior."). First, Lamas disputed this assertion in his testimony. Confronted with Mitchell's assertion that he had "'asked [Lamas] if he was making a sexual harassment complaint and he said 'No,'" Lamas responded, "I don't recall it that way." ER2 at 59 (R.31-3 at 9, Lamas dep. 126). Upon further questioning, Lamas explained, "I may have assumed he was asking whether or not I filed anything. ... I recall telling him that I did not want [the harassment] happening any more." Id. Asked directly, "And do you recall telling him that you did not want to file a sexual harassment complaint against Silvia?" Lamas replied, "No. I do not recall telling him that." Id. Prospect's own harassment policy, moreover, does not require complaints to be in writing or in any particular form. Under the heading "Complaint Procedure," the policy reads as follows: Any incident, which may be a violation of this policy, should be promptly reported to your supervisor. The Company will investigate each complaint in a prompt and proper fashion. Your complaint will be kept confidential to the extent possible. If the complaint is determined to have merit, the Company will take appropriate disciplinary action against the offending employee. ER2 at 68 (R.31-4 at 7). HR manager Claypool confirmed that the policy does not require employees to submit allegations of harassment in writing, and further admitted that even supervisors need not document such reports in writing. See ER2 at 8 (R.50/35-4 at 15, Claypool dep. 55-57). As a legal matter, moreover, a formal written complaint or charge is not necessary to trigger the employer's duty to take preventive or remedial action. Knowledge of discriminatory harassment, acquired in whatever form - through a verbal complaint, a written charge, or direct observation - activates the employer's responsibility to take reasonable steps to end the harassment. Once an employer knows or should know of harassment, a remedial obligation kicks in. ... That obligation will not be discharged until action - prompt, effective action - has been taken. Effectiveness will be measured by the twin purposes of ending the current harassment and deterring future harassment - by the same offender or others. ... If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach. Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). "In essence ... the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." Ellison, 924 F.2d at 881- 82. There is no dispute that Lamas approached Thompson, his supervisor, on several occasions to report that Munoz was making unwanted advances. Regardless of whether Lamas used the label "sexual harassment," Thompson clearly understood that Lamas "felt like she was harassing him." ER2 at 71 (R.31- 4 at 10, Thompson aff. 2). Similarly, Mitchell recognized the letter from Munoz to Lamas, which Lamas showed him, "constituted sexual harassment under the company's policy." ER2 at 100 (R.31-6 at 21, Mitchell dep. 73). From his conversation with Lamas, moreover, Mitchell understood that the "conduct by Ms. Munoz was unwelcomed," and Mitchell considered it to be "a serious matter." ER2 at 100, 103 (R.31-6 at 21, 24, Mitchell dep. 74, 87). Yet Thompson and Mitchell failed to document their conversations with Lamas or with Munoz; conducted no investigation of his allegations; never informed Prospect's HR department of the situation; and did not even bother to follow up by asking Lamas whether their minimal response - an informal meeting with Munoz - was effective in stopping the harassment. Mitchell only reluctantly agreed to speak with Munoz "as a favor" to Lamas, ER2 at 89 (R.31-5 at 21, Mitchell statement), and when she effectively admitted the advances, merely conveyed that "if she wants to pursue Mr. Lamas she should do it on her own time and not on Prospect time." ER2 at 103 (R.31-6 at 24, Mitchell dep. 86). While Mitchell cautioned Munoz that he "would have to take action" if he heard her conduct continued, he did not "say specifically what action." Id. Yet "Title VII requires more than a mere request to refrain from discriminatory conduct." Ellison, 924 F.2d at 881-82. At the very least, as Prospect itself acknowledged, see ER2 at 5 (R.37 at 2), the evidentiary record raises genuine factual questions as to the adequacy of the company's response to harassment of which its managers were, or should have been, aware. There is some evidence, moreover, of sex discrimination in Prospect's response to the complaint of Lamas, a male employee alleging unwanted sexual advances by an amorous female coworker, as compared with instances where the genders of complainant and alleged harasser were reversed. HR manager Claypool recalled "one documented case" during Mitchell's tenure as general manager from March 2002 through May 2003, in which Mitchell followed Prospect's policy to investigate, document, and act promptly in response to allegations of sexual harassment. See ER2 at 8-9 (R.50/35-4 at 15-16, Claypool dep. 55-58). In November 2002 (around the same time Lamas began complaining to Thompson about Munoz and shortly before he approached Mitchell), Claypool testified, Keisha Morrison, a female PSA in Las Vegas, complained that Varian Wright, a male PSA, "repeatedly made sexual advances toward her." ER2 at 8-9 (R.50/35-4 at 15-16, Claypool dep. 57-58). According to Claypool, the investigation "indicated there [were] witnesses to that," but Wright disputed Morrison's allegations. ER2 at 9 (R.50/35-4 at 16, Claypool dep. 58). "Nevertheless, after the review," Claypool testified, "Mitchell terminated [Wright's] employment" and subsequently documented the investigation in writing and informed corporate headquarters of Wright's discharge.<10> ER2 at 9 (R.50/35-4 at 16, Claypool dep. 58-61). In addition, Mitchell recalled an incident when he fired supervisor John Medierous "on the spot" for "looking at porn on the Internet" on a company computer. ER2 at 96-97, 103 (R. 31-6 at 14-15, 24, Mitchell dep. 47, 50-51, 86- 87). Title VII plainly prohibits Prospect from affording less protection from sexual harassment to a male than to a female employee. See Oncale, 523 U.S. at 78 ("Title VII's prohibition of discrimination 'because of ... sex' protects men as well as women."). This Court, in requiring that harassment be viewed from the victim's perspective, therefore took care to explain that "[t]he reasonable woman standard" adopted in that case "does not establish a higher level of protection for women than men." Ellison, 924 F.2d at 879. Thus, to the extent the company took Lamas's complaint less seriously because he was a man fending off the sexual attentions of a woman (rather than the other way around), it denied him equal terms or conditions of employment because of his sex, in violation of Title VII. Oncale, 523 U.S. at 80 ("'The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'") (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). CONCLUSION For the foregoing reasons, the EEOC urges this Court to reverse the summary judgment for Prospect and remand for trial on the merits. Respectfully submitted, _____________________ RONALD S. COOPER DORI K. BERNSTEIN General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202)663-4734 STATEMENT OF RELATED CASES The EEOC does not know of any related cases pending in this Court. See Cir. Rule 28-2.6. CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with F.R.A.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P. 32(a)(7) for a brief produces with a proportionally spaced font. The length of this brief is 10,385 words. Dated: February 15, 2008 U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 ____________________________ Dori K. Bernstein Attorney for the plaintiff-appellant, Equal Employment Opportunity Commission CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for plaintiff-appellant Equal Employment Opportunity Commission, certify that on February 15, 2008, two copies of the Brief of the Equal Employment Opportunity Commission as Appellant were delivered by first class U.S. mail to counsel for defendant-appellee Prospect Airport Services, Inc.: James D. Hibbard BULLIVANT HOUSER BAILEY, PC 3883 Howard Hughes Pkwy., Ste 550 Las Vegas, Nevada 89169 Thomas W. Murphy PEDERSON & HOUPT, P.C. 161 N. Clark St. Chicago, Illinois 60601 ___________________________ Dori K. Bernstein Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@EEOC.gov February 15, 2008 *********************************************************************** <> <1> Pursuant to Cir. R. 30-1.6(a), Volume 1 of the Excerpts of Record (ER1) contains only the opinion, order, and judgment of the district court granting summary judgment against the Equal Employment Opportunity Commission. All other record excerpts are included in Volume 2 of the Excerpts of Record (ER2). Record references correspond to numbered entries on the district court's docket sheet, ER2 at 123-30, and are designated "R.__ at __." All materials filed in the district court are available electronically via the ECF link on the website of the U.S. District Court for the District of Nevada, https://ecf.nvd.uscourts.gov. <2> Record references to witness testimony, in deposition excerpts or by affidavit, identify the witness and the page of the deposition transcript or affidavit on which the cited testimony appears. <3> Claypool's deposition excerpts were included among exhibits filed in support of the EEOC's response in opposition to summary judgment on January 19, 2007. See R.35. Because these exhibits had not been filed electronically, however, the EEOC refiled them on December 5, 2007, to ensure their public availability on the electronic docket of the district court. See R.50. <4> According to Thompson, she "took Rudolpho to meet with Dennis Mitchell" and during the meeting "told Dennis that Rudolpho was complaining of sexual harassment and Silvia was sexually harassing him." ER2 at 70 (R.31-4 at 9, Thompson aff. 1). Both Mitchell and Lamas testified, however, that Lamas approached Mitchell on his own and the two met without Thompson present. ER2 at 99-100 (R.31-6 at 20-21, Mitchell dep. 69, 73); ER2 at 46 (R.31-2 at 14, Lamas dep. 47-48). <5> At his deposition in June 2006, Claypool maintained that "the policy now is that any and all complaints of sexual harassment [made] to a supervisor" trigger the supervisor's "responsibility to report and/or investigate." ER2 at 13 (R.50/35-4 at 22, Claypool dep. 84). Prospect's written policy on sexual harassment, however, has remained substantively unchanged since 2003, when Lamas worked there. ER2 at 11 (R.50/35-4 at 20, Claypool dep. 76). <6> Mitchell and Claypool confirmed that Prospect provides no training on sexual harassment to non-managerial employees. See ER2 at 93 (R.31-6 at 7, Mitchell dep. 17-20); ER2 at 12 (R.50/35-4 at 21, Claypool dep. 79-80). <7> Prospect's management denied that Lamas reported any further harassment after Mitchell met with Munoz in early 2003. Thompson maintained that Lamas "never approached [her] again about it," see ER2 at 71 (R.31-4 at 10, Thompson aff. 2), and Mitchell likewise stated that "Lamas never made any further reports of advances by [Munoz]." See ER2 at 76 (R.31-4 at 15, Mitchell aff. 3). O'Neill recalled a single conversation in January 2003, in which Lamas asked for advice in handling the romantic interest of an unnamed coworker, after which he "heard nothing more in regards to complaints of sexual harassment from Mr. Lamas." See ER2 at 18 (R.50/35-5 at 13, O'Neill aff. 1). <8> The EEOC has not alleged that Prospect retaliated against Lamas in violation of Title VII, nor challenged the lawfulness of his discharge. See ER2 at 119-120 (R.1 at 3-4). <9> Munoz confirmed that during the time she worked with Lamas, she "saw him about 5 days out of the week." ER2 at 78 (R.31-4 at 17, Munoz aff. 1). <10> At that time, Claypool stated, "it was not unusual for the managers" to terminate an employee for sexual harassment without approval from corporate, but "since that time" Prospect has "asked them, unless it's really an undisputed case, [to] do suspension recommended for termination and go from there." ER2 at 9 (R.50/35-4 at 16, Claypool dep. 61).