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 ____________________________________________ REPLY 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 . . . . . . . . . . . . . . . . . . . . . . . . . . .ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY JUDGMENT MUST BE REVERSED BECAUSE THE EVIDENCE, VIEWED MOST FAVORABLY TO THE EEOC, DEMONSTRATES THAT PROSPECT NEGLIGENTLY FAILED TO REMEDY PERVASIVE SEXUAL HARASSMENT THAT SUBJECTED LAMAS TO AN OBJECTIVELY HOSTILE WORK ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. The Evidence Would Support A Jury Finding That Lamas Endured Persistent Sexual Harassment That Altered His Conditions Of Employment And Created A Hostile Work Environment. . . . . . . . . . . 4 B. The Evidence Shows That Prospect Failed To Respond Effectively To Lamas's Reports of Sexual Harassment And Did Not Take Adequate Steps To Remedy And Deter Further Harassment . . . . . . . . . . .17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Allen v. Scribner, 812 F.2d 426 (9th Cir.), amended, 828 F.2d 1445 (9th Cir. 1987) . . . . . .11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . .7, 8, 17 Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 8, 14 Chuang v. Univ. of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . 4 Craig v. M & O Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . 9 Davis v. Team Electric Co., ___ F.3d ___, 2008 WL 189885 (9th Cir., Mar. 28, 2008) . . . . . . . 4, 6, 9 Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . 8, 12, 13 Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . 8, 15, 16 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) 8, 9 Federal Deposit Insurance Corp. v. New Hampshire Insurance Co., 953 F.2d 478 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . 10 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 17 Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1998) . . . . . . . . . . . . . . . 7, 8, 9, 15, 17 McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . 1, 4, 5, 11 Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) . . . . . . . . . . . . 7, 9, 19, 20, 21, 22, 23 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 RULES Fed. R. Civ. P. 56(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Fed. R. App. P. 32(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . .25 INTRODUCTION The EEOC, in its opening brief, identified multiple legal errors and factual misstatements in the district court's summary judgment ruling, and explained why the evidentiary record, viewed in the light most favorable to the EEOC, requires reversal and remand for trial on the merits. See EEOC Br. at 18-40. In response, Prospect recites a version of the evidence that only serves to highlight the existence of genuine material factual disputes sufficient to defeat summary judgment and necessitate a trial. See Prospect Br. at 4-14. Contrary to settled principles and binding precedent, Prospect in effect urges this Court to disbelieve or disregard Lamas's sworn testimony and other admissible evidence supporting the EEOC's claim, and to draw inferences favorable to Prospect rather than the EEOC. "However, it is axiomatic that disputes about material facts and credibility determinations must be resolved at trial, not on summary judgment," at which "stage '[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 n.5 (9th Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). While a jury could choose to believe the testimony of Silvia Munoz over that of Rudolpho Lamas, and would be free to draw inferences more favorable to Prospect than to the EEOC, on review of summary judgment this Court must credit Lamas's version of events and draw all justifiable inferences in his favor, without weighing the evidence or judging the credibility of the various witnesses. Thus, for the reasons stated below and in the EEOC's opening brief, summary judgment on this evidentiary record cannot be sustained. ARGUMENT SUMMARY JUDGMENT MUST BE REVERSED BECAUSE THE EVIDENCE, VIEWED MOST FAVORABLY TO THE EEOC, DEMONSTRATES THAT PROSPECT NEGLIGENTLY FAILED TO REMEDY PERVASIVE SEXUAL HARASSMENT THAT SUBJECTED LAMAS TO AN OBJECTIVELY HOSTILE WORK ENVIRONMENT. The EEOC, in opposition to summary judgment, submitted sworn testimony and documentary evidence that Rudolpho Lamas endured months of unwelcome sexual come-ons from coworker Silvia Munoz, see EEOC Br. at 3-4, 6-9, 12-14 (summarizing evidence, with record citations), and frequent "commentary from coworkers" who conveyed hurtful and embarrassing messages about Munoz's desires and questioned Lamas's sexuality. See id. at 13-14, 29-30. Lamas felt "constant pressure" and "was always hurt" and embarrassed by the harassment, which adversely affected his ability to perform his customer-service job providing assistance to airline passengers. See id. at 14, 16. Although he complained on numerous occasions to his direct supervisor, see id. at 6, sought the advice of his assistant general manager, see id. at 3, and informed his general manager that he wanted the unwelcome advances to stop, see id. at 7-9, Prospect failed to take prompt and effective action to remedy and prevent the harassment. See id. at 9-16. Viewed under the proper legal standards, this evidence would support a jury finding that Lamas endured sexual harassment sufficiently severe or pervasive to create a hostile or abusive work environment and alter the conditions of his employment, see id. at 20-35, and that Prospect was or should have been aware of the harassment and did not respond effectively. See id. at 35-40. In response, Prospect characterizes Munoz's concededly "unwanted and persistent" sexual overtures as "mild, amorous advances," see Prospect Br. at 21; labels the admittedly "embarrassing and annoying" related harassment from other coworkers "innocuous," see id. at 15; insists that because Lamas continued to perform "the basic [job] requirement[s]" despite the harassment, "there was no evidence to support" a jury finding the "conduct interfered with [his] work performance," see id. at 27-28; and asserts that, despite management's ineffective response to Lamas's complaints, Prospect should not be held liable for the harassment because he "[n]ever made any formal complaint" or "fil[ed] a claim of sexual harassment against Munoz." See id. at 29-30. Prospect's portrayal of the record, however, would require a trier of fact to disbelieve Lamas's testimony and other evidence supporting the EEOC's claim and draw inferences in favor of the company rather than the EEOC. Given the procedural posture of this case - on appeal from summary judgment - Prospect's arguments are incompatible with bedrock principles and controlling precedent. A. The Evidence Would Support A Jury Finding That Lamas Endured Persistent Sexual Harassment That Altered His Conditions Of Employment And Created A Hostile Work Environment. "In evaluating motions for summary judgment in the context of employment discrimination," this Court has "emphasized the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citing cases). Thus, "[a] plaintiff alleging employment discrimination 'need produce very little evidence in order to overcome an employer's motion for summary judgment ... because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record.'" Davis v. Team Electric Co., ___ F.3d ___, 2008 WL 189885 at *5 (9th Cir., March 28, 2008) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)). This general rule applies with particular force to claims alleging a discriminatory hostile work environment because, "[a]s the Supreme Court has stated, '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.'" McGinest, 360 F.3d at 1112 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998)). It is only by misstating the record, or failing to assess the evidence in accord with fundamental summary judgment principles, that Prospect can argue for affirmance.<1> Prospect seeks to portray Munoz's harassment as no more than "sporadic and mild romantic overtures," id. at 19, or "mild amorous conduct," id. at 21, yet these descriptions cannot be squared with evidence that Lamas endured months of persistent unwanted sexual advances, including several notes described as a "flirtatious come-on," see EEOC Br. at 2-3; a sexually suggestive photograph featuring Munoz's unclothed cleavage, see id. at 3-4; a letter expressing her sexual desires, describing "crazy dreams" about Lamas, and offering to "give out very good bath wash and body massage," id. at 7; a kiss, see id. at 13; requests for dates, id.; and lewd noises, gestures, or comments made in every passing encounter and "[a]t least" on a daily basis. See id. at 12-13. According to Lamas, the "constant pressure" he felt from Munoz was exacerbated by the frequent, at times daily, "hurtful" and "embarrassing" "commentary from coworkers," who taunted Lamas about her designs on him and speculated that he might be gay. See id. at 13-14, 29-30. While Prospect would dismiss these remarks as "innocuous, non-sexual inquiries and comments," see Prospect Br. at 26, a jury might well see them differently. Cf. Davis, 2008 WL 819885 at *8 n.7 (employer's assertion that discriminatory comments by female plaintiff's male supervisors were "not 'clearly sexist ... insulting, humiliating, intimidating ... derogatory ... [or] threatening in any way,' and did not 'unreasonably interfere with [her] work performance,'" was "not an unreasonable interpretation of the comments, but it would also be reasonable for a jury to infer otherwise"). Prospect attempts to distinguish cases cited by the EEOC, in which this Court has found evidence of harassment sufficient to demonstrate a hostile work environment, see Prospect Br. at 19-20, and to analogize the harassment Lamas endured to conduct other Circuits have found insufficient to be actionable. See id. at 21-21 (citing three cases). Yet Prospect's efforts to contrast and compare the facts of this case to others founders on its mischaracterization of the evidence presented here. Viewed most favorably to the EEOC, the record would permit a jury to find that Lamas experienced harassment comparable to that deemed sufficiently severe or pervasive by this Court, and other Circuits, to alter an employee's working conditions and demonstrate a hostile environment in violation of Title VII. See, e.g., Davis, 2008 WL 819885 at *11-*12 (although the alleged "incidents fall far short of physical abuse or aggressive sexual advances," various sexist remarks by male supervisors to female electrician that "upset her and made it more difficult for her to work" and "occurred repeatedly over the course" of her 11-month assignment was conduct "sufficiently hostile to overcome summary judgment" because "a reasonable woman could have had a reaction similar to [plaintiff's]"); Billings v. Town of Grafton, 515 F.3d 39, 47-51 (1st Cir. 2008) (reversing summary judgment against female plaintiff who complained her male "supervisor regularly stared at her breasts for much of the two and a half years they worked together," and made a single remark with sexual connotations, because "evidence, in its entirety, does not foreclose a finding that [plaintiff] experienced a hostile work environment"); Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871-73 (9th Cir. 2001) (male coworkers and supervisor who called male plaintiff "sexually derogatory names, referred to him with the female gender, and taunted him for behaving like a woman" created hostile work environment where "abuse occurred at least once a week and often several times a day"); Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1998) (reinstating jury verdict finding hostile work environment where male coworker twice touched female plaintiff's buttocks and expressed sexual interest in her and, after she rebuffed him, he and another coworker "proceeded to laugh, snicker, and make suggestive noises at her for a period of eight months").<2> Such comparisons are of limited utility, however, because 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, 523 U.S. at 81-82. As the First Circuit recently recognized, The highly fact-specific nature of a hostile environment claim tends to make it difficult to draw meaningful contrasts between one case and another for purposes of distinguishing between sufficiently and insufficiently abusive behavior. Conduct that amounts to sexual harassment under one set of circumstances may, in a different context, equate with the sort of "'merely offensive'" behavior that lies beyond the purview of Title VII, and vice versa. Billings, 515 F.3d at 49 (citations omitted); accord Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998) ("Discriminatory behavior comes in all shapes and sizes, and what might be an innocuous occurrence in some circum- stances 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."); Hathaway, 132 F.3d at 1221 ("In conducting its fact-based inquiry into the severity and pervasiveness of the conduct and into whether it was based on sex, the jury looks at all the circumstances supported by credible evidence."). As in many hostile environment cases, the harassment Lamas describes "falls somewhere between mere isolated incidents or offhand comments, which do not amount to a Title VII claim ... and serious and pervasive harassment, that clearly comes within Title VII." Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1056 (9th Cir. 2007); see also Hathaway, 132 F.3d at 1221 ("There is no bright line between sexual harassment and merely unpleasant conduct so a jury's decision must generally stand unless there is trial error."). The Supreme Court has expressed confidence that "[c]ommon sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between" the former and the latter. Oncale, 523 U.S. at 82. "In close cases such as this one, where the severity of frequent abuse is questionable," this Court has recently held, "it is more appropriate to leave the assessment to the fact-finder than for the court to decide the case on summary judgment." Davis, 2008 WL 819885 at *12 (citing "Nichols, 256 F.3d at 873 (sustained campaign of taunts by supervisor and coworkers sufficiently hostile), and Ellison, 924 F.2d at 880-81 (unwelcome love letters and date requests from coworker sufficiently hostile)"). This approach finds support in Harris v. Forklift Systems, Inc., 510 U.S. 17, 19, 23 (1993), where the Supreme Court refused to decide that frequent gender-based insults, "unwanted sexual innuendos," and offensive "jokes" by the plaintiff's boss were insufficient, as a matter of law, to constitute a hostile work environment, and instead reversed summary judgment for the employer and remanded so the lower court could evaluate "a 'close case'" under the correct legal standards. Perhaps recognizing that summary judgment cannot be affirmed on the record as it stands, Prospect argues for the first time on appeal that portions of Lamas's deposition testimony are somehow inadmissible or incompetent. See Prospect Br. at 23-25. In an effort to erase damaging evidence from the record, Prospect urges this Court to disregard testimony in which Lamas describes any incident that is not, in Prospect's view, sufficiently detailed or independently corroborated. See id. at 23 (asserting testimony describing daily harassment by Munoz and other employees is not "factually specific evidence"); id. at 24-25 (arguing evidence Munoz gave Lamas a suggestive photo and a kiss are "unsupported allegations," "self-serving statements," and "not admissible because they lack the proper foundation"). Prospect's arguments are both waived and wrong. As an initial matter, Prospect has waived any challenge to the admissibility of Lamas's testimony, having failed to challenge it below via a motion to strike or other objection. See Federal Deposit Insurance Corp. v. New Hampshire Insurance Co., 953 F.2d 478, 484-85 (9th Cir. 1992) ("Defects in evidence submitted in opposition to a motion for a summary judgment are waived 'absent a motion to strike or other objection.'") (citation omitted); Allen v. Scribner, 812 F.2d 426, 435 n.18 (9th Cir.) ("If a party fails to move to strike an affidavit that is allegedly defective under Rule 56(e), he waives any objection to it."), amended, 828 F.2d 1445 (9th Cir. 1987). In any event, Prospect is legally wrong and factually inaccurate on the merits of its tardy evidentiary arguments. As a legal matter, testimony in which Lamas described incidents of harassment he personally experienced, and the impact of such conduct on his working conditions, is plainly admissible and competent evidence that "would suffice to enable a reasonable trier of fact to conclude that discrimination had occurred, without the need for further corroborating evidence." See McGinest, 360 F.3d at 1113 n.5 (plaintiff's "deposition testimony describing his personal observations regarding the manner in which African-American employees were disfavored in relation to white employees ... did not consist of mere 'conclusory allegations,' which would be insufficient to defeat a motion for summary judgment"). "At trial, the trier of fact might deem such testimony to lack credibility, and disregard it, [but] when ruling on a summary judgment motion, the district court is not empowered to make credibility determinations or weigh conflicting evidence." Id. Lamas's testimony is no less precise or detailed than the testimony this Court held was sufficient to defeat summary judgment on the hostile environment claim in Dominguez-Curry, 424 F.3d at 1036. The district court in that case dismissed as "'vague and conclusory,' 'unsupported,' and 'self-serving'" the plaintiff's allegations that her supervisor made sexist comments and sexually explicit jokes, because she "did not cite the dates on which [he] made discrimin- atory remarks, and ... failed to describe his jokes 'with any specificity.'" Id. This Court reversed, finding that the lower court had "inappropriately weighed [her] credibility." Id. The plaintiff's "failure to offer precise dates does not defeat her claim," the Court held, "especially in light of her testimony that the jokes were 'like everyday' occurrences," and she was "not required to recite [the] remarks verbatim." Id. In this Court's view, the plaintiff, who "described the jokes as 'the blond with the big tits type jokes and what she did with whom and those types of jokes,'" id. at 1031, "provided sufficient details of the jokes' content 'to enable a reasonable trier of fact to conclude that discrimination had occurred." Id. at 1036. Lamas's account of the daily harassment from Munoz and other coworkers - lewd or suggestive gestures, noises, remarks, and teasing - is comparable to the plaintiff's testimony summarized in Dominguez-Curry in its level of specificity, both as to the nature and frequency of the harassment. See EEOC Br. at 12-14 (summarizing Lamas's testimony describing daily harassment by Munoz and coworkers). While Prospect urges this Court to discount Lamas's testimony as "unsupported self-serving statements," see Prospect Br. at 25, this Court in Dominguez-Curry criticized the district court for precisely this approach on summary judgment: "Such observations go to whether [plaintiff] is credible, a determination that is exclusively within the province of the factfinder at trial, not the district court on summary judgment." 424 F.3d at 1036. Furthermore, like the plaintiff in that case, and "contrary to [Prospect's] characterization, [the EEOC's] evidence does not consist solely of [Lamas's] own self-serving statements." See id. Many incidents of harassment Lamas describes are corroborated in documentary evidence and the testimony of other witnesses. Several of his contemporaneous reports about unwanted advances from Munoz are confirmed in the affidavits of Prospect managers. See ER2 at 69-72 (R.31-4 at 8- 11, Thompson aff.); ER2 at 73-76 (R.31-4 at 12-15, Mitchell aff.); ER2 at 17-20 (R.50/35-5 at 12-15, O'Neill aff.). The most suggestive letter he received from Munoz is included in the record, ER2 at 62 (R.31-4 at 1), and her May 2002 request for a date is documented in a note signed by a passenger who witnessed the incident, ER2 at 67 (R.31-4 at 6), and confirmed by Munoz in her own affidavit, ER2 at 79-80 (R.31-4 at 18-19, Munoz aff. 2-3). Prospect is legally incorrect, moreover, in suggesting that Lamas's failure to report certain incidents to management somehow renders his testimony about these events "not admissible" or "lack[ing] the proper foundation." See Prospect Br. at 24-25. Incidents of harassment that Lamas did not report to managers, such as the episode when Munoz kissed him, see EEOC Br. at 13, are nevertheless relevant to determine whether, in light of the totality of circumstances, his working environ- ment was hostile or abusive. See, e.g., Burrell, 170 F.3d at 954-55 (plaintiff's testimony describing harassment by two coworkers, which she never reported to management, contributed to finding "genuine issues of material fact exist as to whether [coworkers and supervisor] sexually harassed Burrell and whether their conduct created a hostile work environment," but employer was absolved of liability for coworkers' harassment because plaintiff "failed to come forward with evidence that ... management knew or should have known about" their conduct). Finally, Prospect's recitation of the evidence is inaccurate. For example, Prospect mischaracterizes Lamas's testimony about having received a suggestive photo from Munoz as "an afterthought" raised during his deposition, Prospect Br. at 8, and calls it an "unsupported allegation" of an incident "he never reported to management." Id. at 24-25. Yet in a sworn affidavit provided to the EEOC in December 2003 - roughly a year after the incident occurred and several years before Lamas's deposition in April 2006, see ER2 at 39 (R.31-2 at 1, Lamas dep. at 1) - Ronda Thompson specifically recalled that Lamas "came to me again and said he got an obscene picture of ... Silvia Munoz - she had given [him] a picture of her naked and holding her breast," and that Lamas "seemed disturbed by it." ER2 at 70 (R.31-4 at 9, Thompson aff. at 1). Prospect is also wrong in asserting that "there was no evidence" that the harassment interfered with Lamas's work performance. See Prospect Br. at 28. Prospect incorrectly limits its brief argument on this point to "Munoz's behavior." See Prospect Br. at 27-28. The hostile environment Lamas experienced resulted not only from Munoz's persistent sexual advances, but also from the frequent, and sometimes daily, "hurtful" and "embarrassing" related "commentary from coworkers." See EEOC Br. at 13-14, 29-30. "As in most claims of hostile work environment harassment, the discriminatory acts" Lamas describes "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 also Harris, 510 U.S. at 23 ("[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances.") (emphasis added); Hathaway, 132 F.3d at 1222 ("A work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it 'into a series of discrete incidents.'"). Furthermore, Lamas's testimony describing the effects of the continuing harassment on his emotional state and job performance is sufficient to support a jury finding that the harassment unreasonably interfered with his work performance and altered his employment conditions. Lamas testified that he "was always hurt" and felt "constant pressure" as the "hurtful" and "embarrassing" offensive conduct "went on and on," and he received no help from management. See EEOC Br. at 14. This Court has cited similar testimony in finding evidence sufficient to demonstrate a hostile work environment. See Draper, 147 F.3d at 1108 (citing plaintiff's testimony "that she constantly felt uncomfortable and upset at work"). The continuing harassment, Lamas testified, adversely affected his ability "to cheerfully serve the passengers" in "a customer-service-related job," and thus "interfered with [his] ability to perform the job up to the standard that [he] wanted." See id. at 16. Notwithstanding this direct testimony, Prospect argues that "there was no evidence" the harassment "interfered with Lamas' work performance" because he continued performing "the basic requirement" of his job.<3> See Prospect Br. at 27- 28. Yet a Title VII claimant need not show harassment prevented him from doing his job or caused a demonstrable decline in performance for a jury to find the objectionable conduct altered the conditions of his employment. "[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Harris, 510 U.S. at 25 (Scalia, J., concurring); see, e.g., Billings, 515 F.3d at 51 (plaintiff's testimony "that she was able to continue performing her duties notwithstanding the complained-of behavior ... is by no means fatal to her hostile environment claim"); Hathaway, 132 F.3d at 1223 (plaintiff who "did not seek medical or psychiatric care, miss work, or receive bad performance evaluations" presented "sufficient evidence for the jury to conclude that the discriminatory conduct rose to a level that unreasonably interfered with her work performance" based on testimony "that she felt afraid, intimidated, and anxious, and that those feelings had a detrimental impact on her psychological well-being and on her ability to perform her work"). A. The Evidence Shows That Prospect Failed To Respond Effectively To Lamas's Reports of Sexual Harassment And Did Not Take Adequate Steps To Remedy And Deter Further Harassment. Despite its forthright concession in district court that "disputed issues of fact" precluded summary judgment as to "the sufficiency of its own response to the complaints of Mr. Lamas," ER2 at 5 (R.37 at 2), Prospect now asserts that summary judgment can be affirmed on the alternate ground that the company "took adequate steps to address Munoz's actions." See Prospect Br. at 28. Prospect cannot dispute the testimony of its own managers that Lamas repeatedly informed supervisor Ronda Thompson of Munoz's unwanted advances (as instructed by Prospect's own harassment policy); sought the advice of assistant general manager Patrick O'Neill on how to handle the situation; and showed general manager Dennis Mitchell a sexually explicit letter from Munoz and asked him to stop the harassment. See EEOC Br. at 3-4, 6-9. Prospect's minimal response - a single brief, informal, undocumented meeting with Munoz, undertaken by Mitchell "as a favor" to Lamas, in which Mitchell told Munoz to "pursue Mr. Lamas ... on her own time and not on Prospect time" or face some unspecified "action," see id. at 9- 10, - was, even by Munoz's own admission, ineffective to deter her continued pursuit of Lamas. See id. at 13. According to Lamas, he complained "consistently" to his superiors about the continuing harassment, to no avail.<4> See EEOC Br. at 15-16, 30-31. Prospect nevertheless insists its response was adequate because Lamas did not make "any formal complaint to Prospect regarding Munoz's continuing behavior." Prospect Br. at 29-30. Prospect's argument is untenable, in light of this Court's decision in Nichols, 256 F.3d at 875-76. The employer in Nichols maintained a written harassment policy with precisely defined reporting requirements, and provided "a bilingual (English and Spanish) training program about sexual harassment ... which all employees attend when hired, and annually thereafter, [that] defines sexual harassment and instructs employees how to report complaints." Id. at 870. Plaintiff Antonio Sanchez "attended [the] sexual harassment training and was familiar with the company's antiharassment policy and reporting procedures ... [y]et he never complained to the corporate EEO officer or the area manager about the harassment he experienced, as required by the corporate policy." Id. Instead, Sanchez complained informally to the general and assistant managers "about being called names," and eventually reported the harassment to the company's human resources (HR) director. Id. 870-71. In response, the HR director told Sanchez "to report any further harassment" to the general manager, "who promised to address the issue," and planned to "follow up with 'spot checks' over a two-week period to ensure that the harassment would stop." Id. at 871. During the ensuing "four or five spot checks," the HR director "spoke with Sanchez only once and was told that conditions were improving." Id. "Sanchez made no further complaints," and was fired a couple of months later for "walk[ing] off the job" after a "heated argument with an assistant manager." Id. After a bench trial, the district court entered judgment for the defendant employer on Sanchez's Title VII harassment and retaliatory discharge claims. Id. This Court reversed as to the harassment claim, holding that: "a reasonable man would have found the sustained campaign of taunts, directed at Sanchez" by coworkers and a supervisor, "sufficiently severe and pervasive to alter the terms and conditions of his employment," id. at 873; Sanchez's complaints to the general and assistant managers and the HR director showed he subjectively perceived his work environment as hostile or abusive, and did not welcome the harassment, id.; and the "verbal abuse," directed at Sanchez "because he failed to conform to a male stereotype," "occurred because of sex," id. at 874-75. Turning to the question of employer liability for the coworker harassment, this Court rejected the trial court's conclusion that the employer "took appropriate remedial measures that were reasonably calculated to, and in fact did put an end to any harassment.'" Id. at 876. The employer "did nothing," the Court observed, "after Sanchez complained to his assistant and general managers." Id. "Although these complaints did not follow the formal reporting requirements of [the employer's] anti-harassment policy," the Court found "they were sufficient to place the company on notice of the harassment." Id. at 876 and n.10. Furthermore, because "Sanchez specified the insults and slurs to which he was subjected," this Court found that "[h]is failure to label the conduct of which he complained 'sexual harassment' is irrelevant to the issue of whether he made a sexual harassment complaint." Id. at 873 at n.6. While the employer "took some action in response to Sanchez's ... complaint" to the HR director, this Court held that "its remedy fell short." Id. at 876. The HR director's solution - instructing Sanchez to report further harassment and conducting "a handful of spot checks" in the two weeks after he complained - "did not remedy the harassment that had already occurred, and was not adequate to deter future harassment." Id. The employer did not investigate Sanchez's complaint, discuss his allegations with the perpetrators, demand a stop to the unwelcome conduct, or threaten more serious discipline for future harassment. Id. The employer's limited response, the Court held, "failed to remedy the harassment and discipline those responsible for it." Id. "Moreover, by conditioning its response on Sanchez's reports of further harassment," this Court held, the employer improperly "placed virtually all of its remedial burden on the victimized employee." Id. Even though "Sanchez failed to report any harassment after his ... complaint" to HR, the Court decided, "[t]his argument is not a defense to liability in the face of an inadequate remedial response" and "goes solely to the question of the extent of damages." Id. at n.12. Unlike the plaintiff in Nichols, Lamas followed the "Complaint Procedure" specified in Prospect's harassment policy and reported Munoz's unwanted advances to his supervisor, Ronda Thompson, on a number of occasions.<5>. See EEOC Br. at 6. Although Thompson recalled that Lamas "never said he was being sexually harassed," after several such reports she clearly understood "that [he] was complaining of sexual harassment [and Munoz] was sexually harassing him." See ER2 at 70 (R.31-4 at 9, Thompson aff. 1). Lamas also sought O'Neill's advice about handling Munoz's advances, see EEOC Br. at 3, and eventually approached Mitchell to discuss the matter. See id. at 7. Lamas showed Mitchell the sexually explicit letter from Munoz, which Mitchell considered "a serious matter" that "constituted sexual harassment under the company's policy," see id. at 37-38, and clearly conveyed to Mitchell "that he wanted this to stop." See id. at 8-9. Prospect's minimal response to reports of conduct that Thompson and Mitchell identified as sexual harassment in violation of company policy neither remedied the harassment Lamas had already experienced nor deterred further harassment. Prospect managers failed to document any of Lamas's complaints; conducted no investigation; did not discipline Munoz in any way; never reported the situation to company headquarters or Prospect's HR director; and made no effort to follow-up with Lamas to see if the harassment stopped after the meeting with Munoz. See EEOC Br. at 10-12. Prospect faults Lamas for not "filing a claim of sexual harassment against Munoz," and argues it "should not be liable because Lamas did not bring to its attention his claim that Munoz was continuing her pursuit of him." Prospect Br. at 30. Prospect's argument, however, ignores evidence to the contrary, see EEOC Br. at 15-16, 30-31, and improperly shifts "virtually all of its remedial burden" to Lamas, "the victimized employee." See Nichols, 256 F.3d at 876. Neither Prospect's own policy, nor this Court's precedent, requires an employee to make a "formal complaint" or "fil[e] a claim of sexual harassment," see id. at 29-30, to trigger the employer's duty to provide an effective remedial response: "Once an employer knows or should know of [co-worker] harassment, a remedial obligation kicks in." ... An employer is liable for the hostile work environment created by a co-worker unless "the employer ... take[s] adequate remedial measures in order to avoid liability." ... The reasonableness of the remedy depends on its ability to: (1) "stop harassment by the person who engaged in harassment;" and (2) "persuade potential harassers to refrain from unlawful conduct." ... When the employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment. Nichols, 256 F.3d at 875-76 (citations omitted). CONCLUSION For the foregoing reasons, and those stated in the EEOC's opening brief, 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 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 5,725 words. Dated: April 14, 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 April 14, 2008, two copies of the Reply 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 April 14, 2008 *********************************************************************** <> <1> See, e.g., Prospect Br. at 19 (calling Munoz's conduct "sporadic and mild romantic overtures"); id. at 21 (describing harassment as "unwanted and persistent, yet mild, amorous advances," and "mild, amorous conduct"); id. at 22 (suggesting Lamas endured no more than "innocuous amorous pursuits in the workplace"); id. at 23 (asserting Lamas alleged only "isolated incidents" of harassment); id. at 26 (describing case as "a situation where one co-worker liked another co-worker and, at best, expressed her feelings on several occasions in a misguided fashion"). <2> See also EEOC Br. at 25 (citing, with parenthetical descriptions, Dominguez- Curry v. Nevada Transportation Dept., 424 F.3d 1027, 1035 (9th Cir. 2005); Burrell v. Star Nursery, Inc., 170 F.3d 951, 953-55, 957 (9th Cir. 1999); Ellison v. Brady, 924 F.2d 872, 874-75, 880-81 (9th Cir. 1991)). <3> The record flatly contradicts Prospect's assertion that Lamas "was unable to testify ... that there was any connection between the performance problems he encountered at the end of his employment and Munoz's conduct." See Prospect Br. at 27. In response to a question whether a "particular performance problem" with attendance was "caused by Ms. Munoz and the ongoing harassment," Lamas replied: "I can't pinpoint specifics. But during that time that I was being bothered by Ms. Munoz, I was affected; I was hurt. And there were days that I didn't even want to go in. So it's quite possible. But I can't pinpoint it. ... But, you know, I was affected and bothered and it was uncomfortable. The environment was uncomfortable. And it was during the time that this letter [of reprimand] is dated." Supp. ER1 at 14 (R.31-3 at 15, Lamas dep. 149). When asked directly whether "some of your performance problems towards the end of your employment were the result of the situation involving Silvia Munoz," Lamas responded, "The answer is yes." ER2 at 57 (R.31-3 at 7, Lamas dep. 116). <4> Prospect dismisses Lamas's testimony about his continuing complaints as "self- serving statements" because they were uncorroborated. See Prospect Br. at 29. This argument, however, cannot eliminate the factual dispute the evidence creates, and should be rejected for the same reasons as Prospect's other belated evidentiary objections. See supra at 10-14; see also EEOC Br. at 30-31. <5> Prospect has a one-page policy that defines sexual harassment and instructs employees to report to their supervisors "[a]ny incident, which may be a violation of this policy." See EEOC Br. at 4. In contrast to the far more comprehensive anti- harassment policy, reporting and investigation procedures, and training described in Nichols, 256 F.3d at 870, Prospect has no written policies or procedures for documenting, investigating, resolving, and monitoring harassment complaints, id. at 5-6, and provides no harassment training to non-managerial employees. Id. at 14 & note 6.