Equal Employment Opportunity Commission v. R&R Ventures, Inc 00-1702 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-1702 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. R&R VENTURES, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the District of Maryland ______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 ARGUMENT 4 CONCLUSION 21 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________ No. 00-1702 ___________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. R&R VENTURES, INC., Defendant-Appellee. _________________________________________________ Appeal from the United States District Court for the District of Maryland _________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________ INTRODUCTION The Commission alleges in this action that R&R Ventures violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., by subjecting Shelby Scott, Brandyn Potter, and other female employees of defendant's Severna Park Taco Bell restaurant to a sexually hostile work environment, and by retaliating against Scott and Potter for complaining about the harassment. The district court granted defendant's motion for summary judgment, holding that the charges on which the suit was based were untimely; the evidence did not establish actionable sexual harassment; and the Commission failed to establish a causal connection between the complaints of harassment and the adverse employment actions taken. In our opening brief, we explained why each of these rulings was erroneous. We pointed out that this government enforcement action can be based entirely on Scott's charge which was indisputably timely because it was filed only 106 days after the last alleged act of discrimination. EEOC Br. at 24-26. On the merits, we detailed the substantial evidence in the record that supports a finding that Scott, Potter, and other female employees were subjected to a sexually hostile work environment at the Severna Park Taco Bell for which the defendant is liable. EEOC Br. at 27-37. We also argued that the judgment may not be affirmed on the alternative ground advanced by defendant below - that R&R Ventures is not liable for the conduct of its manager Edwin Wheeler - because the evidence does not establish that the company took reasonable care to prevent and correct sexual harassment or that the victims unreasonably failed to take advantage of any corrective opportunities available. EEOC Br. at 37-45. Finally, we argued that there was sufficient evidence to support a finding that the defendant took adverse actions against Scott and Potter because they complained about Wheeler's sexual harassment. EEOC Br. at 45-49. In its brief as appellee, R&R Ventures does not directly respond to most of the Commission's arguments. For example, it does not dispute that Scott's charge was filed within the time prescribed by Title VII and that this action may be based entirely on that charge. Instead, R&R Ventures raises another, equally baseless procedural objection - that Scott's charge was not served on R&R Ventures within ten days. On the merits, R&R Ventures at no point argues that no reasonable fact finder could have concluded that female employees were subjected to a hostile work environment at the Severna Park Taco Bell. Instead, defendant simply ignores most of the evidence relied on by the Commission and points instead to other evidence, most of which is mischaracterized or taken out of context, which arguably supports its version of events. At best, this approach merely demonstrates that there are factual questions that cannot be decided on summary judgment. Similarly, R&R Ventures argues it has established an affirmative defense to liability but ignores conflicting evidence as to whether it took reasonable steps to prevent and correct sexual harassment and whether the targets of Wheeler's conduct unreasonably failed to take advantage of defendant's corrective measures. Except for denying in a footnote that there was retaliation, defendant also fails to respond to the Commission's argument that the district court erred in dismissing our retaliation claim. We submit this reply to respond to several new arguments raised by the defendant and to refocus the discussion on the issues raised by the Commission's appeal and the evidence supporting the Commission's arguments. ARGUMENT 1. The district court gave as one reason for dismissing this action that the charges on which it is based were not timely filed. We argued that this was wrong because this action may be based entirely on Scott's charge, and Scott's charge was filed within the 300-day time limit imposed by § 706(e) of Title VII. EEOC Br. at 24-26. R&R Ventures does not dispute either of these propositions. Instead, it raises a different procedural objection - that Scott's charge was not served on R&R Ventures within ten days as required by § 706(b) of Title VII. See R&R Br. at 19-20. This argument is both factually and legally meritless. First, as we pointed out in our opening brief, the record establishes that the Commission served the notice of Scott's charge on February 18, 1997, eight days after it was filed on February 10, 1997. See EEOC Br. at 25 & n.7 (citing II JA 1264-65 (EEOC Charge)). R&R Ventures does not dispute that the record is as the Commission represents. Instead, R&R Ventures criticizes the Commission for not specifically stating in district court that the February 10, 1997, date-stamp appears on the back of Scott's charge.<1> See R&R Br. at 19. In our brief opposing R&R Ventures' motion for summary judgment, however, we stated that the charge was received by the Commission on February 10, 1997, and cited Scott's charge. See R. 23 (EEOC Opposition to Summary Judgment at 6). Nothing more was required. R&R Ventures also suggests that the date-stamp on the charge should be disregarded because the Commission did not provide "an affidavit or other sworn statement" attesting to its validity. R&R Br. at 19-20. No affidavit authenticating Scott's charge is required. See Fed. R. Evid. 803 (8) & 901 (b)(7); see also Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999) (court may presume that public records are authentic and trustworthy, and the burden of establishing otherwise falls on the opponent of the evidence, who must come forward with enough negative factors to persuade a court that a document should not be admitted). Thus, the record establishes that the Commission served the notice of Scott's charge within ten days from the filing date. Moreover, even if there were a factual basis for R&R Ventures' argument that the charge was not served within ten days, that would not be a ground for dismissing this action. The courts have uniformly held that the Commission's failure to serve notice within ten days is not a bar to suit absent bad faith or prejudice to the employer. See EEOC v. Shell Oil Co., 466 U.S. 54, 66 n.16 (1984); EEOC v. U.S. Fidelity & Guaranty Co., 420 F. Supp. 244, 249-50 (D. Md. 1976), aff'd 538 F.2d 324 (4th Cir. 1976) (10-day notice requirement not mandatory); EEOC v. Wayside World Corp., 646 F. Supp. 86, 88 (W.D. Va. 1986) (showing of "substantial" prejudice required to bar suit). See also EEOC v. Airguide Corp., 539 F.2d 1038, 1042 (5th Cir. 1976) (clear showing of substantial prejudice required before suit will be barred); EEOC v. Burlington Northern, Inc., 644 F.2d 717, 720-21 (8th Cir. 1981) (untimely notice of charge not an absolute and automatic bar to an EEOC enforcement action). R&R Ventures does not argue that it was prejudiced by the delay it asserts occurred in the service of Scott's charge, nor could it conceivably establish prejudice on the basis of such a short delay. See, e.g., U.S. Fidelity & Guaranty Co., 420 F. Supp. at 249-250 (claim was not barred where notice was served ten months after charge received where no prejudice was shown). Accordingly, the Commission's action is properly based on Scott's timely-filed charge of discrimination. 2. In its opening brief, the Commission set out in detail the extensive evidence supporting each element of the claim that R&R Ventures violated Title VII by subjecting female employees at its Severna Park store to a sexually hostile work environment. We argued that, contrary to the district court's ruling, this evidence is sufficient to support a jury verdict in the Commission's favor. See EEOC Br. at 27-37. R&R Ventures does not directly respond to the Commission's argument; it makes no effort to demonstrate that the summary of the record in the Commission's brief is inaccurate or that the Commission misstates the elements of a hostile environment claim. Instead, R&R Ventures offers an alternative version of events based on selective, and often misleading, citations to the record. Then, ignoring the fact that this case was dismissed on summary judgment, R&R Ventures argues that its story is the more credible. Even if R&R Ventures' summary of the facts were accurate, it would merely confirm that there are material issues of fact and summary judgment was inappropriate. However, as we demonstrate below, R&R Ventures presents a distorted and misleading statement of the record. Although R&R Ventures acknowledges in its argument headings and statement of the standard of review that this is an appeal from a grant of summary judgment, it completely loses sight of that fact in its argument. It is important, therefore, to reiterate the correct standard of review. Summary judgment is appropriate only if "'a reasonable trier of fact could draw only one conclusion from the evidence.'" Conner v. Schrader-Bridgeport Int'l, Inc., 2000 WL 1287904, at *8 (4th Cir. Sept. 13, 2000) (quoting Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994)). In reviewing a grant of summary judgment, a court must accept as true the evidence proffered by the non-moving party, and "[i]f, giving the non-movant the benefit of every legitimate inference in her favor, there was evidence upon which the jury could reasonably return a verdict for her, [the Court] must reverse the judgment below." Id. In this case, therefore, the question on appeal is whether, crediting the Commission's evidence and drawing all legitimate inferences in the Commission's favor, a reasonable jury could find that Wheeler's harassment of female employees was sufficiently egregious to constitute unlawful sex discrimination. We argued in our opening brief that the answer to that question is yes. R&R Ventures' response entirely misses the point. First, R&R Ventures argues that no Title VII violation occurred because working for Wheeler was "an unpleasant and unrewarding experience, for both male and female employees." R&R Br. at 23. It supports this argument by citation to some evidence that Wheeler was at times verbally abusive to male employees. However, R&R Ventures simply ignores the extensive evidence summarized in the Commission's opening brief that: Wheeler reserved inappropriate sexual and sexist comments and innuendo for female employees; Wheeler closely examined and commented on young female employees' bodies, often in front of others; Wheeler repeatedly asserted that women are stupid and less capable than men. See EEOC Br. at 30-31 (citing record). When this evidence is considered along with the evidence selectively cited by R&R Ventures, it is clear that there is sufficient evidence to support a finding that female employees were "exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). Second, R&R Ventures asserts that the alleged harassment was not sufficiently severe or pervasive because "[n]one of the claimants could recall more than one or two incidents of alleged harassment . . . and none of those few incidents could be characterized as particularly offensive or egregious." R&R Br. at 15. In support of this assertion, R&R Ventures mischaracterizes several statements in the record and ignores substantial evidence to the contrary. For example, R&R Ventures' statement that "Wheeler also occasionally made jokes and comments of an inappropriate (and sometimes sexual) nature" is flatly inconsistent with the record. R&R Br. at 23. Scott testified that Wheeler "constantly, every single day" told her "about how nice of a butt I had and how much guys would love to just spank me or how much I should try it," I JA 722 (Scott Dep. at 159), and that "at least once a day" when she bent over, Wheeler told her she was "giving him a cheap thrill" and "usually it was followed by something else, but every day it was different." I JA 697-98 (Scott Dep. at 134-35). When asked about Wheeler's sexual comments during her deposition, Scott testified that "[t]here were many. Just talking about sexual experiences, positions. He'd talk about anything." I JA 700 (Scott Dep. at 137). Defendant also incorrectly represents that Potter "could recall only two specific incidents" of harassment -- that Wheeler had complained how long it had been since he had sex and that his girlfriend was bisexual. R&R Br. at 28 n.16. Defendant misunderstands Potter's testimony. These two comments were examples of the types of sexual comments to which Wheeler subjected Potter whenever they worked together. Potter testified that Wheeler "would talk about his personal life to me and that included his sex life and inquiries into mine," went on to give the above comments as examples, and also stated "He'd make jokes, sexual jokes." I JA 463 (Potter Dep. at 41). When asked how often Wheeler made sexual comments and jokes, she replied: "Daily. At least daily if not every other day." I JA 562 (Potter Dep. at 140). Thus, R&R Ventures' assertion that there is insufficient evidence that Wheeler's harassment of female employees was pervasive is contrary to the record. R&R Ventures also argues that the alleged harassment was not severe because there is "absolutely no evidence that Wheeler or any other R&R employee ever touched Scott, Potter or Wright; that he made any overt sexual proposition or physical threats toward them; or that any alleged conduct unreasonably interfered with their work performance." R&R Br. at 26. Once again, R&R Ventures simply ignores contrary evidence. Pedro McKee testified that Scott complained Wheeler "had touched her and that he used to brush up against her." I JA 301 (McKee Dep. at 21). McKee also witnessed Wheeler hugging two female employees against their will. I JA 299-300 (McKee Dep. at 19-20). Scott's mother testified that she saw Wheeler touch a female employee's breast inappropriately. I JA 354 (Mooney Dep. at 39). A jury could also view the evidence that Wheeler flirted with and "hit on" young female employees (I JA 455-56, 463 (Potter Dep. at 33-34, 41); I JA 694 (Scott Dep. at 131)), and repeatedly asked Scott if she liked to be spanked, I JA 698, 722 (Scott Dep. at 135, 159), as sexual propositions and physical threats. Furthermore, as the Commission emphasized in its opening brief, verbal harassment alone may constitute a hostile work environment. See Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000). To be actionable, a harasser's conduct must alter the conditions of employment and make the job harder to do. Harris, 510 U.S. at 25 (Ginsburg, J., concurring). There is no requirement that a victims' work performance suffer. Id. (Scalia, J., concurring) (test is not whether work has been impaired, but whether working conditions have been discriminatorily altered). Wheeler's behavior towards subordinate female employees half his age could certainly be assessed by a reasonable fact finder as "overtly sexist, grossly demeaning, or physically threatening in nature." R&R Br. at 29 n.17 (comparing the instant case to Smith, 202 F.3d at 243). R&R Ventures distorts the victims' testimony in an effort to show that they did not regard Wheeler's harassment as particularly upsetting. Again, the record belies this assertion. For example, Scott never indicated that Wheeler's conduct "was not particularly upsetting."<2> R&R Br. at 4. On the contrary, Scott testified that "I just didn't like it . . . I didn't like the sexual jokes . . . I didn't feel that it was appropriate," I JA 700 (Scott Dep. at 137), and that "the sexual jokes, the position jokes" and the way Wheeler talked about sex "offended me." I JA 702 (Scott Dep. at 139).<3> Scott cried in response to Wheeler's conduct, I JA 748, 752 (Scott Dep. at 185, 189), and lost a significant amount weight to avoid drawing attention to her body. I JA 788-91 (Scott Dep. at 225-28). Potter testified that she was " absolutely petrified" and "terrified" of Wheeler, (I JA 484, 561 (Potter Dep. at 62, 139)), that "emotionally I was a wreck" and that she would cry every morning because she had to go to work and see Wheeler. I JA 483 (Potter Dep. at 61). Contrary to defendant's assertion, Potter in no way "admitted that she never told Wheeler to stop telling jokes or making comments." R&R Br. at 9. Potter testified that she complained to Wheeler one of the times he commented about his bisexual girlfriend, and in response to her complaint, Wheeler became "really vicious overnight." I JA 463-64 (Potter Dep. at 41-42). Eventually Potter no longer could tolerate working with him. I JA 484-85 (Potter Dep. at 61-62). This evidence and additional testimony cited in our opening brief, see EEOC Br. at 31-35, demonstrates that there is sufficient evidence for a jury to find that Wheeler's harassment altered the victims' conditions of employment. Defendant can argue its unique version of the facts to a jury, but its misleading assessment of the evidence only demonstrates why the district court erred in granting summary judgment.<4> 3. Although the district court did not address R&R Ventures' argument that it established the affirmative defense outlined in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Commission argued in its opening brief that this Court may not affirm on that basis because R&R Ventures failed to establish either prong of the defense. We noted that R&R Ventures, as the party bearing the burden of proof on the issue, is entitled to summary judgment only if the evidence in the record compels a finding that it has met every element of the defense. See EEOC Br. at 37-38. We argued that R&R Ventures failed to establish that it had an effective policy against sexual harassment because, as we explained at length, there is extensive evidence that its policy was not disseminated, was not the subject of employee training, and was ineffective on its face. EEOC Br. at 38-43 (citing to record). In response, R&R Ventures once again merely gives its version of events and ignores all contrary evidence in the record. R&R Ventures argues that it took reasonable care to prevent sexual harassment by having and disseminating a sexual harassment policy and by investigating Scott's claim of sexual harassment and transferring Potter away from Wheeler when she complained. See R&R Br. at 33-34. However, R&R Ventures simply ignores the evidence set out in the Commission's opening brief detailing deficiencies in R&R Ventures' policies. For example, R&R Ventures' Area Manager, who is now Director of Operations, testified that the company does not provide management employees with sexual harassment training, I JA 113 (Lee Dep. at 35), and that there is no procedure in place for handling sexual harassment complaints. I JA 97 (Lee Dep. at 19). The policy fails to provide names or phone numbers of persons to contact if one is harassed; directs employees to report sexual harassment to their "immediate supervisor or above" but does not specify who "above" is; fails to instruct supervisors to report complaints to the appropriate company personnel; and fails to promise confidentiality or protection from retaliation. See II JA 1263 (Policy). Similarly, R&R Ventures asserts that, once it learned of Scott's complaints of harassment, it "took prompt and reasonable steps to investigate and deal with the situation." R&R Br. at 35 (footnote omitted). However, a jury could find that defendant's actions were far from adequate. When Scott complained of Wheeler's behavior, Lee's wife<5> called several female employees to ask if they had experienced problems with Wheeler, but did not interview Scott or Wheeler, the two people most likely to have information relevant to Scott's allegations. I JA 153 (Lee Dep. at 73). A fact finder could assess this response as inadequate. See Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1131-32 (4th Cir. 1995) (where employer interviewed harasser but failed to warn, reprimand, or counsel harasser, court determined that the investigation was "superficial" and fell "far short of that taken by other employers in harassment cases."). Furthermore, contrary to the inference in R&R Ventures' brief (see R&R Br. at 35 & 42), it is undisputed that R&R Ventures did not fire Wheeler because of the allegations of sexual harassment. Wheeler was fired because of poor job performance. I JA 76 (Heller Dep. at 59). Accordingly, his termination was not part of R&R Ventures' response to the sexual harassment problem. R&R Ventures' argument that Scott, Potter and Wright unreasonably failed to take advantage of opportunities to correct the problems caused by Wheeler is also based on selective and misleading citations to the record. There is ample undisputed evidence that the victims of Wheeler's harassment repeatedly complained to supervisors and managers at R&R Ventures. Although Wright did not formally complain, manager Mareia Waddy heard Wright complaining about Wheeler to other female employees and volunteered that that is how Wheeler is. II JA 1235 (Wright Dep. at 81). Scott told every manager at the Taco Bell about Wheeler's inappropriate sexual behavior. See I JA 747-48 (Scott Dep. at 184-85); I JA 707, 801 (Scott Dep. at 144, 238); I JA 725, 733, 735-36, 799-800 (Scott Dep. at 162, 170, 171, 172-73, 236-37); I JA 733, 734, 800-801 (Scott Dep. at 169, 171, 237-38); I JA 732-33, 736, 799-800 (Scott Dep. at 169-70, 173, 236-37). Consistent with principles of agency, notice to a store manager empowered to act on complaints of harassment is imputed to the employer. See, e.g., Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (defendant in co-worker sexual harassment case had actual notice of harassment because supervisor to whom victim complained had authority to handle complaints); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 674 (10th Cir. 1998) (employer had actual notice of co-worker harassment where plaintiff complained to her maintenance manager and to her first-line supervisor). Because Scott notified her immediate supervisor as defendant's policy instructs (II JA 1263), defendant cannot complain that it did not receive notice. See Breda, 222 F.3d at 890 ("employees of such companies [that instruct victims to notify store managers] need not be concerned with whether they pursued their complaints far enough up the company ladder"). In any event, Scott's mother repeatedly left detailed messages with Mike Lee that female employees were being sexually harassed by Wheeler; these calls were not returned. I JA 345, 368, 370-78 (Mooney Dep. at 30, 53, 55-63). Notwithstanding Potter's uncontradicted testimony that it took her two weeks to obtain Mike Lee's phone number because no manager would give it to her (I JA 481-83, 521 (Potter Dep. at 59-61, 99)), R&R Ventures criticizes her for not complaining sooner and erroneously states that Potter never characterized Wheeler's behavior as sexually based. R&R Br. at 36. Potter testified that when she met with Mike Lee and Dennis Heller, "I sat down and told them everything that I just told you. That he, you know, sexually - made the sexual comments and jokes initially, that he was verbally assaulting me at this point, that he was making sexual jokes and comments to the other girls there, both in my presence and not in my presence because I felt . . . they needed to know that as well because I had been advised of Shelby Scott's filing a complaint and I felt that they needed to know that it was still going on." I JA 479-80 (Potter Dep. at 57-58). R&R Ventures also ignores evidence that Potter had previously complained to managers Tammy Hartley (see I JA 485-86, 489 (Potter Dep. at 63-64, 67)), and Mike McCarthy about Wheeler's sexually offensive behavior towards her and other female employees. I JA 452 (Potter Dep. at 30). Accordingly, after the evidence is assessed in the light most favorable to the Commission, it is clear that the district court could not have resolved the affirmative defense in favor of defendant on summary judgment. 4. In our opening brief, we argued that the district court erred in dismissing our retaliation claim because there is sufficient evidence to support a finding that adverse actions against Scott and Potter, including Scott's suspension and the reduction of Potter's hours, were caused by their complaints that they were being sexually harassed. EEOC Br. at 45-49. Defendant's only mention of this claim is a cryptic statement in a footnote that "[f]or the same reasons that the first prong of the affirmative defense [to liability for Wheeler's sexual harassment] is satisfied, the Commission's argument regarding the claimants' 'retaliation' claims must be rejected -- neither Wheeler nor R&R Ventures took any retaliatory employment action against Scott, Potter or Wright." See R&R Br. at 33 n.19. This conclusory statement without any citation to the record or to case law is a manifestly inadequate response to the Commission's arguments. Accordingly, this Court should reverse the district court's grant of summary judgment on the retaliation claim. 5. R&R Ventures includes in its brief an argument that the Commission is not entitled to back pay, compensatory damages or punitive damages even if R&R Ventures violated Title VII. These arguments concerning the specific forms of relief available should the Commission prevail are not properly before the Court. The district court made no rulings on the relief issues briefed by R&R Ventures, so there are no district court rulings to review. R&R Ventures' arguments do not provide an alternative basis for affirming the judgment since R&R Ventures does not argue that the Commission would be entitled to no relief if it prevails. For example, R&R Ventures makes no argument that the Commission could not obtain injunctive relief if it proves that the company tolerated severe and pervasive harassment of female employees despite numerous complaints, as the Commission alleges in this action. The relief issues raised by R&R Ventures should be left for the district court to address on remand or for a jury to address at trial. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 October 6, 2000 CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and the textual portion contains 4849 words. I understand that a material misrepresentation in completing this certificate can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out. _________________________ Julie L. GantzCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to: Paul J. Weber HYATT & PETERS 1919 West Street Box 1852 Annapolis, MD 21404-1852 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 October 6, 2000 1 Defendant also argues that the Commission received Scott's charge on January 27, 1997, not on February 10th, citing a computer-generated EEOC intake report. R&R Br. at 20. This document is an intake record indicating the date Scott came to the Commission's office to pick up a charge form and meet with an intake officer. II JA 1344. Scott did not sign her charge until February 2, 1997, see II JA 1264, and the Commission received the signed charge on February 10, 1997. II JA 1265. 2 R&R Ventures uses ellipses to misleadingly alter Scott's testimony. R&R Ventures quotes Scott as testifying that Wheeler's conduct was "not . . . bad." See R&R Br. at 4 n.3. Scott, in fact, stated that Wheeler's comments about sex were "not as bad in June." I JA 701 (Scott Dep. at 138). 3 While Scott characterized Wheeler's comments at one point in her deposition as "little stuff," more often she made clear that his behavior was upsetting. See I JA 694 (Scott Dep. at 131) ("it's just something I was not used to and something that I did not appreciate"); I JA 695-96 (Scott Dep. at 132-33) (as example of comments she did not like, she stated "he was constantly, constantly making comments about my butt"); I JA 696 (Scott Dep. at 133 ("Nobody else talked about my butt. And if they would have, I would have just - especially if it would have been a younger guy, I probably would have smacked him."). 4 Defendant argues that the Commission relies "heavily" on the testimony of Lia Green Mack, Misti Sevier, Pedro McKee, and LaDonna Mooney and argues that such evidence "has no bearing on whether Scott, Potter and/or Wright, themselves, were subjected to an actionable hostile work environment while working under Wheeler's supervision at the Severna Park store." R&R Br. at 27. First, in our opening brief, the Commission briefly referred to the testimony of Mack and Sevier as evidence that the defendant's sexual harassment policy is ineffective. See EEOC Br. at 42-44. Second, both McKee and Mooney are valid witnesses to the work environment at the Severna Park Taco Bell during the relevant time period. McKee was Scott's and Wright's co-worker at the Severna Park Taco Bell and witnessed Wheeler's sexually inappropriate behavior and sexist comments, I JA 299, 307-08 (McKee Dep. at 19, 27, 28) and served as a confidante to Scott. I JA 301 (McKee Dep. at 21). Mooney frequently visited her daughter at work, I JA 337-38, 349 (Mooney Dep. at 22-23, 34); witnessed Wheeler's inappropriate treatment of female employees, I JA 351, 354 (Mooney Dep. at 36, 39); listened to her daughter's complaints about Wheeler's sexual comments, I JA 395-96 (Mooney Dep. at 80-81); and attempted to intervene on her daughter's behalf by informing R&R Ventures' management of the problem. I JA 345, 368, 370-78 (Mooney Dep. at 30, 53, 55-63). McKee's and Mooney's testimony corroborates that of the victims, and certainly bears on whether they were subjected to a hostile work environment. 5 Defendant incorrectly states that Mike Lee testified that he interviewed employees with his wife as part of this "investigation." R&R Br. at 35 n. 20. Only Mike Lee's wife conducted these interviews, and they were by phone and not in person. See I JA 149-52 (Lee Dep. at 71-74).