IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ Nos. 02-1571 & 02-1574 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and VALERIE P. MOORE Plaintiff-Intervenor-Appellant, v. REYNOLDS METALS CO.; LOCAL NO. 400, UNITED STEELWORKERS OF AMERICA, INTERNATIONAL UNION, Defendants-Appellees. ____________________________________________ On Appeal from the United States District Court for the Eastern District of Virginia ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND VALERIE P. MOORE AS APPELLANTS ____________________________________________ CURTIS McKINLEY HAIRSTON, JR. Attorney THE GEE LAW FIRM, P.C. 5900 Midlothian Turnpike Richmond, VA 23225 (804) 864-5291 NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW, Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 (202) 663-4737 TABLE OF CONTENTS Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . .ii Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . iii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Certificate of Compliance with Rule 32(a). . . . . . . . . . . . . . . .21 Certificate of Service 1. The plaintiffs allege that Reynolds violated Title VII by failing to take appropriate actions to stop the sexual harassment of Valerie Moore by Julian Clarke, a male co-worker. In moving for summary judgment on this claim, Reynolds argued only that Clarke's harassment of Moore was not based on Moore's sex. The district court agreed, and granted summary judgment for the defendant on the ground that the plaintiffs "failed to show that Clarke's behavior was motivated by Moore's gender." Mem. at 4. Accordingly, the only issue on appeal with respect to this claim is whether the evidence, viewed in the light most favorable to plaintiffs, could support a finding that Moore's sex was a but-for cause of Clarke's harassment of her, that is, that Clarke would not have harassed Moore in such a manner if she were a man. See Wrightson v. Pizza Hut of America, 99 F.3d 138, 142 (4th Cir. 1996) (an employee is harassed because of her sex if the harassment would not have occurred but for her sex), disapproved on other grounds, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). We argued in our opening brief that there is ample evidence that Clarke's treatment of Moore was motivated, at least in part, by her sex. The district court reached the contrary conclusion, we argued, by erroneously equating evidence that Clarke's abuse of Moore arose out of the breakup of their consensual sexual relationship with evidence that the abuse was not based on Moore's sex. To be prohibited by Title VII, however, discrimination does not have to be solely because of sex. Wrightson, 99 F.3d at 144 ("a Title VII cause of action lies even though the discrimination against the employee is not ‘solely' because of the employee's sex, as long as the employee's sex was a cause of the discrimination") (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989)). Contrary to the district court's view, we argued, evidence that abusive sexual behavior was motivated by the breakup of a sexual relationship supports a finding that the victim's sex was "a cause of the discrimination." See Plaintiffs' Opening Brief ("Plfs. Br.") at 26-29. The defendants offer no response to this argument. Instead they choose to ignore the point completely and base their entire argument on the same erroneous premise as the district court – that this is an either/or proposition: Clarke abused Moore either because of their failed relationship or because of her sex. See Defendants Brief ("Defs. Br.") at 17-18 (the issue on appeal is "whether the alleged harassment in this case . . . was ‘because of' Moore's sex in violation of Title VII or was instead the unfortunate result of a failed romance") (emphasis added). Because defendants fail to account for the possibility that the harassment may have occurred because of both Moore's sex and her decision to stop seeing Clarke, their argument on appeal is largely beside the point. We reply briefly to refocus this appeal on the question presented and to respond to some specific criticisms of our opening brief. Once it is understood that challenged conduct may have more than one motivation, it is clear that the fact that Clarke's abuse of Moore arose out of her termination of their romantic relationship supports the plaintiffs' claim that it was motivated by Moore's sex. As we noted in our opening brief, courts have routinely found that abusive behavior by a harasser designed to persuade or pressure the victim to enter a sexual relationship is motivated by the victim's sex. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 60 (1986) (harasser's "repeated demands upon [plaintiff] for sexual favors" constituted actionable sexual harassment); Harris v. L & L Wings, Inc., 132 F.3d 978, 980 (4th Cir. 1997) (harasser's repeated sexual touching of plaintiff and attempts to persuade her to have sex with him were motivated by sex). Harassment by a jilted lover expressing anger is as much harassment because of sex as harassment by a would-be lover expressing desire. That other factors may play a part in motivating the harasser's conduct – such as the personal characteristics of the victim, in the case of a harasser seeking to begin an affair, or the victim's decision to end the relationship, in the case of a harasser upset by the end of an affair – does not mean that the plaintiff cannot establish that her sex was also a motivating factor in the conduct. See Plfs. Br. at 27-28. Defendants suggest that Clarke's conduct could not have been based on sex because he did not treat other women as poorly as he treated Moore. See Defs. Br. at 26 & n.12 (Clarke's slamming door on Moore could not have been motivated by sex because he had held the door open for another woman). But this is no more persuasive than a if man accused of harassing a woman because he wanted to have an affair with her responded that his conduct was not based on sex because he did not similarly harass other women. Plaintiffs are not required to prove that Clarke abused Moore because of animosity against all women, but only that he abused this woman at least in part because she was a woman. See, e.g., Holtz v. Rockefeller & Co., 258 F.3d 62, 75-76 (2d Cir. 2001) (finding harasser's actions sufficient to constitute hostile environment in part because he "touched no other person in this way"); Moring v. Arkansas Dep't of Corrections, 243 F.3d 452, 456 (8th Cir. 2001) (harasser's conduct toward plaintiff was because of her gender; no requirement that harasser treated other female employees similarly). We also argued in our opening brief that the nature of Clarke's conduct would support a finding that it was motivated by Moore's sex. In particular, we pointed to evidence that Clarke harassed Moore almost daily with gender-based epithets like "whore," "slut," "trash" and "tramp." See Plfs. Brf. at 25. Defendants respond that the nature of Clarke's verbal abuse does not by itself "demonstrate that the harassment was because of [Moore's] sex." Defs. Brf. at 29. There are two major flaws in defendants' argument. First, defendants ignore the fact that this case was decided on a motion for summary judgment. At this stage of the proceedings, plaintiffs are not required to "demonstrate" to defendants' satisfaction, or even to the satisfaction of the district court, that Clarke's harassment was based on Moore's sex. The district court should have denied defendants' motion even if it was not persuaded that Clarke was motivated by Moore's sex, as long as a reasonable jury could find, based on the evidence in the record, that he was so motivated. Secondly, we do not rely solely on the nature of Clarke's verbal abuse to support the allegation that he was motivated by Moore's sex. The words Clarke chose to torment Moore cannot be separated from the context in which they arose. There is ample evidence that Clarke's abuse of Moore was precipitated by Moore's decision to end their sexual relationship. Many of Clarke's actions can support an inference that his harassment of Moore was motivated by anger over Moore's decision to stop having sex with him. But even before Moore stopped seeing him, Clarke became angry and violent when he saw Moore talking with other male employees. He snuck into her home and checked the phone numbers recorded on her caller ID. He scared her by making sudden noises and cutting her off, threw things at her, assaulted her several times, and threatened to shoot and kill her. See Plfs. Br. at 4- 6, 10. We contended that on the basis of all of this evidence, as well as the nature of the verbal abuse, a jury could find that Clarke would not have harassed Moore in this fashion if she had been a man, and that her gender was therefore a but-for cause of his harassment. The defendants' argument on this point highlights a more general problem with their brief. Although they pay lip service to the principle that the facts must be construed in the light most favorable to the plaintiffs (Dfts. Br. at 17), they repeatedly violate that principle in an apparent effort to minimize the seriousness of the plaintffs' claims. The defendants' statement of facts, though preceded by an assurance to the Court that the evidence is "viewed in the light most favorable to Moore," ignores significant portions of the evidence that this Court is required to credit: for example, that Moore complained to Morris and the union repeatedly about Clarke's harassment both before and after the September 1999 meeting with Morris, that the company failed to investigate her allegations and stop the harassment, and that the union repeatedly urged her not to complain to the company or even seek protection from the courts and the police. Defs. Br. 3-4; Plfs. Br. 3-7, 9-12. Defendants' brief also ignores evidence that, in the September 1999 meeting with Morris, Clarke complained not that Moore was harassing him, but that she was complaining about his harassment of her and had threatened to file an assault charge or seek a restraining order against him. Defs. Br. 3-4; Plfs. Br. 8-9.<1> The defendants also launch a broadside attack on the plaintiffs' use of authority, stating that "nearly every" case cited by the plaintiffs is irrelevant or distinguishable because "these cases either involved quid pro quo harassment, did not involve prior consensual relationships, or presented facts far more egregious than those presented in the instant case." Defs. Br. 33. They back up this sweeping assertion by challenging our use of only three specific cases. Defs. Br. 23 n.11 (Lipphardt); 33 n.15 (Durham Life); & 33-34 (Smith). The relevant section of our opening brief contains citations to more than 15 cases. We cited these cases for various purposes, but especially to show that the victim's sex can be a but-for cause of harassment even when the harassment also had another cause, and to illustrate the types of evidence that can be used to prove that sex was a but-for cause of the harassment. Our case citations were proper, and the defendants have failed to even suggest, let alone demonstrate, why it was improper to cite a case that fits into one of the broad categories the defendants list. An examination of the specific citations challenged by the defendants demonstrates that their criticism is based on erroneous premises. We cited Lipphardt v. Durango Steakhouse, Inc., 267 F.3d 1183 (11th Cir. 2001), for the proposition that the mere fact that harassment arose from a prior personal relationship does not mean that it was not based on sex.<2> See Plfs. Br. at 29. Lipphardt clearly stands for this proposition.<3> The fact that the court characterized some of the plaintiff's claims in that case as constituting "quid pro quo" harassment does not lessen the decision's relevancy to the point for which it was cited since the question of whether harassment was based on sex is equally critical in a quid pro quo case. We cited Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999), for the proposition that harassment motivated by sex-based anger is no less motivated by sex than harassment motivated by sex-based desire. See Plfs. Br. at 29. The fact that Durham Life did not involve a prior personal relationship does not make it any less relevant to the point for which it was cited. Finally, we cited Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000), and other cases, for the proposition that a harasser's use of sex-based insults "can support a finding that the harassment occurred because of the victim's sex." See Plfs. Br. at 30 (citations omitted). Defendants complain that the verbal harassment in Smith was "more inflammatory" than Clarke's abuse of Moore and that it was more explicitly based on a hostility toward "women as a group." Defs. Br. at 34. The severity of the verbal harassment goes to its weight in establishing that the harassment was severe and pervasive enough to alter Moore's working conditions – an issue not presented in this appeal. It has no bearing on its relevancy to the question of motivation, the point for which Smith was cited. Furthermore, the fact that Clarke's comments did not expressly relate to "women as a group" is of no importance, since, as noted above, it is not necessary for plaintiffs to prove that Clarke was hostile to all women; it is enough to show that he abused Clarke because she was a woman. Defendants' brief on the sexual harassment claim fails to respond to the key legal point made in plaintiffs' brief – that harassment arising out of a prior personal relationship may be found to be motivated by the victim's sex even if it is also motivated by animosity due to the prior relationship. Once that point is understood, it is clear that the evidence was sufficient to support a finding that Clarke harassed Moore because of her sex. 2. The district court granted summary judgment on the plaintiffs' retaliation claim on the ground that the defendants' imposition of the MOU was not an adverse employment action and that there is insufficient evidence to support a finding that defendants' subsequent decision to terminate Moore for violating the MOU was a pretext for sex-based retaliation. We argued in our opening brief that the district court made three errors in reaching this conclusion: in treating the MOU and the termination as independent and unrelated claims; in requiring the plaintiffs to show that the real reason for the termination was sex discrimination; and in failing to find sufficient evidence of pretext with respect to both the MOU and the termination. Plfs. Br. at 33-39. In response, the defendants maintain first that the district court's statement that the plaintiffs had to show gender discrimination was merely a clerical error. Defs. Br. 39-40. But it was demonstrably not a clerical error. As part of the evidence showing pretext, the plaintiffs offered evidence that terminating Moore for a technical violation of the MOU was vastly disproportional to the discipline the company administered in the case of Lois White, who cut a co-worker off with her car and brandished a gun and was merely suspended. The district court ruled that this evidence failed to show pretext because the comparatively moderate discipline in White's case was administered to White, who was a woman. "This evidence supports the Company's claim," the court concluded, "that its decision to terminate Moore was not because of her gender." 1A-28 (emphasis added). Thus the district court's requirement that the plaintiffs show gender discrimination in order to establish retaliation was clearly not merely clerical.<4> The defendants next argue that the plaintiffs waived their argument that the MOU and the termination should be viewed as interrelated. Defs. Br. 38-39. The evidence the defendants cite to support this argument is highly selective. A review of the plaintiffs' memorandum opposing summary judgment demonstrates that the plaintiffs asked the district court to consider the two actions as interrelated parts of a retaliatory course of conduct. One section heading maintained that "Reynolds took several adverse employment actions against Moore culminating in her termination." 3A-505. The memorandum emphasized the obvious fact that the termination was "based on" the MOU. 3A-506. The plaintiffs argued that the MOU was discriminatory and that the termination resulted from an overly strict enforcement of the MOU. 3A-509-10. The memorandum relied on the close temporal proximity between Moore's complaints to Collins, on the one hand, and the three adverse actions by Collins: imposing the MOU, suspending Moore, and then firing her. 3A-507 ("All of these adverse actions were taken against Moore within a few weeks of the time that her complaints first came to Collins' attention."). The plaintiffs repeatedly referred to the MOU and the termination collectively as "the adverse actions" that constituted Reynolds' retaliatory response to Moore's complaints of harassment. 3A- 506-07. The defendants' waiver argument should accordingly be rejected. Finally, the defendants argue that the district court properly ruled that the MOU, viewed separately, did not constitute an adverse action. Defs. br. 35-37. We have two responses. First, as we argued in our opening brief, the district court erred in analyzing the imposition of the MOU and the termination as wholly separate claims, and should have analyzed them as interrelated adverse actions "culminating in [Moore's] termination." Plfs. Br. 34-35; 3A-505. The district court therefore erred in dismissing the retaliation claim partly on the ground that the MOU did not by itself constitute an adverse action. Second, assuming arguendo that it was proper and necessary to address whether the MOU, viewed independently, constituted an adverse action, the defendants' brief sidesteps the principal evidence that it did. The defendants argue that the MOU was not discriminatory because it restricted Clarke's movements as severely as it restricted Moore's, and that the only additional restriction was assigning Moore a different locker. Defs. Br. 36 (quoting the district court's statement that "locker reassignment, without more, simply does not qualify as an adverse employment action."). But even if the MOU was not discriminatory, it does not necessarily follow that the MOU was not an adverse action. The MOU significantly changed the terms and conditions of Moore's employment by threatening to fire her if she set foot outside various not-clearly-defined pathways and boundaries. (This is of course not an exaggerated hypothetical. This is precisely why Moore was fired.) Assuming arguendo that the MOU restricted Clarke's movements just as severely as it restricted Moore's, then the MOU constituted an adverse action as to both employees, because risking termination for unwittingly venturing into insufficiently-defined prohibited places is hardly a "trivial discomfort[ ] endemic to employment." Defs. Br. 37 (quoting Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999)). In any event, when the MOU and the termination are properly viewed as interrelated parts of one course of conduct, that course of conduct clearly includes one or more adverse employment actions. It is undisputed that Moore engaged in protected activity for months before the MOU was imposed, culminating in her complaints in person to Collins only six days before the MOU was imposed. Reynolds has articulated non-retaliatory reasons for imposing the MOU and for firing Moore, and the plaintiffs have offered sufficient evidence that those reasons were pretextual and that Reynolds' desire to put an end to Moore's incessant complaints about Clarke's harassment was a but-for cause of those adverse actions. See Plfs. Br. 5-7 (May through August), 9-10 (September), 11-15 (October through January).<5> The district court therefore erred in granting summary judgment.<6> 3. The district court granted summary judgment for the union in part for the same reasons that it found the claims against the company deficient – because Clarke's harassment of Moore was not based on her sex, and because there was insufficient evidence that the company's decision to terminate Moore was based on her sex. In our opening brief we argued that there is sufficient evidence to support the claims against the union, pointing to evidence that the union did not take Moore's repeated complaints of harassment seriously; favored Clarke over Moore during its investigation of Moore's complaints; and, based on that biased investigation, joined with the company in imposing on Moore the disciplinary regime that led to her termination. In response, the defendants first argue that the plaintiffs waived any disparate-treatment claim against the union by not advancing it below. Indeed, the defendants' argument on this point gives the impression that the plaintiffs advanced no arguments at all against the union in the district court. However, a fair reading of the memorandum that the plaintiffs filed in the district court demonstrates that the plaintiffs did raise below the arguments that the union is now claiming they waived. Defendants contend that the plaintiffs failed to argue below that the union discriminated against Moore on the basis of her sex when it responded inadequately to her harassment complaints; when it advised her not to complain to the company about the harassment or seek police protection; and when the union's president, during her end-of-the-year investigation, talked with Clarke but not Moore, and concluded that Moore was lying without having spoken to her. Defs. Br. 49. Contrary to defendants' representation, the plaintiffs' memorandum opposing summary judgment did present these arguments. The plaintiffs' memorandum focused on their sex- discrimination claim against the union,<7> and the plaintiffs recognized that this claim required proof of gender bias. 3A- 514, 541. To support this claim, the plaintiffs pointed to evidence that: when Moore complained about the harassment to the union, the union repeatedly advised her not to complain to the company and "did nothing to remedy the situation"; and in December 1999 Sheila Jones, the union president, talked with Clarke and got his side of the story but failed to interview Moore, and concluded, without having talked to Moore or her witnesses at all, that she (Moore) was the harasser and not Clarke. 3A-517-18, 521, 530.<8> The union and the company claim that they imposed the MOU on Moore and Clarke because they were unable to substantiate Moore's allegations and could not figure out whom to believe. The plaintiffs argued in their memorandum that this explanation is not credible in light of the evidence that Jones interviewed Clarke but did not interview Moore or her witnesses, and knew that Clarke had been found guilty twice of assaulting female sexual partners, including Moore. 3A-530, 540- 41. The union relies chiefly, however, on the principles that the employer controls the workplace while the union merely represents the workers, and that a union does not violate Title VII by failing to file a grievance if the charging party did not even ask the union to do that. Defs. Br. 47-48, 52-53, 55-56. The plaintiffs have no occasion to dispute these principles in this case, except by pointing out that they do not apply here. When a union restricts itself to its traditional role of representing its members, it is free to rely on these principles, but here the union chose to perform functions normally performed by management, and it should not be heard to disclaim liability on grounds that apply only to unions that choose not to do so. When an employee complains that a co-worker has subjected her to a hostile environment, it is normally the employer's duty to conduct an investigation reasonably calculated to determine whether the allegations of harassment are true. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (employer may avoid liability for hostile environment in certain cases if it, inter alia, shows that it "exercised reasonable care to . . . correct promptly any sexually harassing behavior"); Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001) ("The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified."). Here, however, the union allowed Reynolds to rely on the union's investigation, such as it was, of Moore's allegations. If the union agrees to perform, on the company's behalf, a duty that management would usually fulfill, the union should share in the company's liability if the investigation the union conducted was inadequate and biased. Cf. Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1304 (9th Cir. 1982) (union violates Title VII if it "join[s] in the Company's discriminatory practices"); Farmer v. ARA Servs., Inc., 660 F.2d 1096, 1104 (6th Cir. 1981) (union that joins with employer in imposing discriminatory collective bargaining agreement may violate Title VII); Sears v. Atchison, Topeka & Santa Fe Ry. Co., 645 F.2d 1365, 1374-75 (10th Cir. 1981) (fact that union lacked authority to hire and transfer does not shield union from liability for violating Title VII where union sought and signed collective bargaining agreement that discriminated against African-American employees). Similarly, it is normally management's prerogative to discipline the employees. Here, however, the union joined with the company in imposing on Moore the disciplinary regime that led to her termination, and did so without having first investigated her allegations adequately and fairly. The union may therefore be found jointly liable with Reynolds for violating Title VII. Cf. id. CONCLUSION For the foregoing reasons, the plaintiffs respectfully urge this Court to reverse the district court's order as to all claims. Respectfully submitted, CURTIS McKINLEY HAIRSTON, JR. Attorney THE GEE LAW FIRM, P.C. 5900 Midlothian Turnpike Richmond, VA 23225 NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW, Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7018 Washington, DC 20507 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because the brief uses a monospaced typeface and contains 468 lines, as counted by WordPerfect 9.0, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a monospaced typeface using WordPerfect 9.0 with 12-point Courier New, with ten characters per inch. (s) Attorney for EEOC Dated: December ______, 2002 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: William V. Conley, Esq. LeBoeuf, Lamb, Greene & MacRae, L.L.P. One Gateway Center 420 Fort Duquesne Blvd., Suite 1600 Pittsburgh, PA 15222-1437 Joseph P. Stuligross, Esq. United Steelworkers of America Five Gateway Center Pittsburgh, PA 15222 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 December 6, 2002 TABLE OF AUTHORITIES CASES Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . .19 Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999) . . . . . . . . . . . . .14 Durham Life Insurance Co. v. Evans, 166 F.3d 139 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . .7, 9 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . .19 Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . .19 Harris v. L & L Wings, Inc., 132 F.3d 978 (4th Cir. 1997) . . . . . . . 3 Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir. 2001) . . . . . . . . . 4 Lipphardt v. Durango Steakhouse, Inc., 267 F.3d 1183 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 7-9 Mays v. City School Board, No. 00-2020, 2001 U.S. App. LEXIS 3129 (4th Cir. Mar. 2, 2001) . . . . . . . . . . . . . . . .15 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . 3 Moring v. Arkansas Department of Corrections, 243 F.3d 452 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . 4 Robles v. Cox & Co., 154 F. Supp. 2d 795 (S.D.N.Y. 2001) . . . . . . . . 8 Schrader v. E.G.&G., Inc., 953 F. Supp. 1160 (D. Col. 1997) . . . . . . 8 Sears v. Atchison, Topeka & Santa Fe Railway Co., 645 F.2d 1365 (10th Cir. 1981) . . . . . . . . . . . . . . . . . .19 Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . .7, 9 Succar v. Dade County Sch. Board, 229 F.3d 1343 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 8 Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001) . . . . . . . . . . . .19 Wrightson v. Pizza Hut of America, 99 F.3d 138 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 ********************************************************************************** <> <1> The defendants’ attack on Moore’s credibility – Defs. Br. 3 n.1 – likewise has no place in an appeal from summary judgment. Testimony that contradicts Moore’s testimony merely raises a factual dispute. <2> The defendants argue that Lipphardt does not overrule Succar v. Dade County Sch. Bd., 229 F.3d 1343 (11th Cir. 2000) (per curiam). Defs. Br. 23 n.11. We did not argue that it does. We cited Lipphardt for the proposition that even when the harasser is reacting to his former lover’s decision to end their affair, the evidence may show that her sex was also a but-for cause of the harassment. Plfs. Br. 29, 31-33. The defendants also cite Lipphardt for the proposition that “personal animosity is not the equivalent of sex discrimination,” as if that proposition injures the plaintiffs. Id. But the plaintiffs have not argued that personal animosity is the equivalent of sex discrimination. We have consistently acknowledged that we must show, as a separate element of our claim, that Moore’s gender was a but-for cause of Clarke’s harassment. Plfs. Br. 24-33. <3> See also Robles v. Cox & Co., 154 F. Supp. 2d 795, 800-06 (S.D.N.Y. 2001) (after Robles ended her consensual affair with her supervisor, he forced her to have sex with him for some time, and then, when she told him she would not submit anymore, he harassed her and took adverse actions against her; court held that supervisor’s sexual activities and his anger-driven harassment both constituted actionable harassment under Title VII); Schrader v. E.G.&G., Inc., 953 F. Supp. 1160, 1167-69 (D. Col. 1997) (where plaintiff ended consensual affair with his supervisor and she then regularly berated him for leaving her and pressured him to resume the affair, evidence supported finding that she harassed him because of his sex). <4> We pointed this out in our opening brief (p. 36 n.16), and the defendants have offered no response. <5> The defendants correctly point out, Defs. Br. 45 n.24, that our opening brief (at p. 39) contains a typographical error when it says that Morris decided to suspend Moore for violating the MOU. It was Collins who learned of a potentially embarrassing press inquiry regarding the company’s failure to respond to Moore’s complaints of harassment, and then, shortly after that, suspended her. See Plfs. Br. 16-17. <6> The defendants also argue that this case is “like” Mays v. City Sch. Bd., No. 00-2020, 2001 U.S. App. LEXIS 3129 (4th Cir. Mar. 2, 2001), an unpublished decision of this Court. Defs. Br. 42 n.22. Assuming arguendo that defendants’ citation of an unpublished decision is justified in light of the contrary presumption in Local Rule 36(c), nothing in Mays supports the district court’s dismissal of our retaliation claim. The Mays panel affirmed the district court’s summary-judgment dismissal of Mays’ retaliation claim where: (a) Mays failed to show a causal connection between her “earlier” complaints of sexual harassment and her termination; (b) Mays, in open defiance of orders entered by both the school board and the court, stayed after work and snuck up on Lawhorne, the alleged harasser, and took photographs of him with another woman, actions which led to a physical altercation between the two employees on school property; and (c) the school board fired both employees for fighting on school property. There is no suggestion that Mays contested the propriety of the school board’s (or the court’s) order that she stay away from Lawhorne. Her violation of that order was deliberate and provocative and predictably led to a physical altercation. In contrast, in the instant case Moore challenged the propriety of the MOU, her violation was unwitting and technical and led to no altercation, and she complained of Clarke’s harassment only days before the adverse actions started. <7> The union maintains that the plaintiffs also waived their retaliation claim against the union by failing to raise it in the district court. Defs. Br. 49 n.26. But the plaintiffs raised their retaliation claim against the union in their complaint (1A-9-10, 13), and the union in its motion for summary judgment argued only that the plaintiffs had failed to raise a material factual dispute with respect to their discrimination claim. Since the union did not present any substantial argument seeking summary judgment on the retaliation claim, the plaintiffs had no obligation to discuss that claim in their responsive filing.