UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 10-11035 _______________________ TIGIST RYALS, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Northern District of Texas _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ______________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Acting Associate General Counsel Office of General Counsel 131 M Street, N.E., 5th Floor VINCENT J. BLACKWOOD Washington, DC 20507 Assistant General Counsel (202) 663-4727 fax: (202) 663-7090 SUSAN L. STARR susan.starr@eeoc.gov Attorney TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . . . . . . . . . . . 3 2. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT THE DISTRICT COURT APPLIED INCORRECT LEGAL STANDARDS IN EXCLUDING EVIDENCE OF ACTS OF HARASSMENT ATTESTED TO BY THE PLAINTIFF IN CONSIDERING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 A.Contrary to the District Court's View, Ryals May Challenge Acts of Harassment Occurring More Than 300 Days Before She Filed Her Charge Whether or Not She Realized That AA was Violating Title VII at the Time of the Earlier Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B.The Statement Ryals Incorporated in Her EEOC Charge Was Not Hearsay and Should Have Been Considered As Evidence Supporting Ryals's Opposition to Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983) . . . . . . . . .10, 11 Duplantis v. Shell Offshore, Inc., 948 F.3d 189 (5th Cir. 1991) . . . . . . . . .14 EEOC v. WC&M Enterprises, 496 F.3d 292 (5th Cir. 2007) . . . . . . . . . . . .9, 13 Gorzynski v. Jetblue Airways Corp., 596 F.3d 93 (2d Cir. 2010) . . . . . . . . . 16 Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) . . . . . . . . . . . .16 Linton v. City of Marlin, 25 F.3d 706 (5th Cir. 2001) . . . . . . . . . . . . . .14 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir. 1983) . . . . . . . . 14 Pritchard v. Southern Co. Servs., 92 F.3d 1130 (11th Cir. 1996) . . . . . . . . .13 Stewart v. Miss. Transp. Comm.,, 586 F.3d 321 (5th Cir. 2009) . . . . . . . 11, 15 Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006) . . . . . . . . . . . . . 13 STATUTES, REGULATIONS and RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq passim UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 10-11035 _______________________ TIGIST RYALS, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee. _________________________________________________ On Appeal from the United States District Court for the Northern District of Texas _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT _________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other federal employment discrimination laws. This appeal raises the question of when a court may consider events that occurred more than 300 days before the plaintiff filed a charge in determining whether the evidence is sufficient to support a finding that she was subjected to a hostile work environment within the limitations period. The district court held that harassment occurring outside the limitations period may be considered only if the plaintiff demonstrates that she was "unable to appreciate that [s]he [was] being discriminated against" at the time the earlier harassment occurred even if it is related to harassment within the limitations period. Because this holding is contrary to controlling Supreme Court precedent and would frustrate enforcement of Title VII by effectively insulating some current discriminatory conduct from challenge under the statute, we present our views to the Court under authority provided by Fed. R. App. P. 29(c)(3). STATEMENT OF ISSUES 1. Under what circumstances may a court consider incidents occurring outside Title VII's limitation period in determining whether an employer violated Title VII by requiring an employee to work in a hostile environment within the limitations period. 2. Whether in ruling on the defendant's motion for summary judgment, the district court erred by failing to consider a sworn statement by the plaintiff describing actions and statements she witnessed because the statement would not be admissible at trial. STATEMENT OF THE CASE<1> 1. Nature of the Case and Course of Proceedings This is an appeal from a final order granting defendant's motion for summary judgment in this Title VII action. The plaintiff initiated this action by filing a complaint in August 2008. District court docket number ("R.") 1. The complaint alleges that the defendant violated Title VII by subjecting plaintiff "to disparate treatment and a hostile work environment" based on race, national origin, sex, and retaliation.<2> The district court entered a final judgment on September 13, 2010. R.47. Plaintiff filed a timely appeal on October 8, 2010. R.50. 2. Statement of Facts<3> Tigist Ryals, an Ethiopian-born black woman, began working for American Airlines ("AA") in 1995. Since 2001, Ryals has worked as a licensed aircraft maintenance technician ("AMT"). R.36-1 (Ryals declaration). Throughout her tenure as an AMT, Ryals was the only black female and usually the only female on her crew. Id. at 1. In a statement attached to her EEOC charge, Ryals describes a pattern of harassment by a group of supervisors and coworkers that began in early 2004 and continued until at least October 2006. R.36-2 (Attachment to EEOC charge).<4> Ryals asserts that Tommy Toon became her crew chief in January 2004 and soon thereafter began harassing her. Id. at 1. Ryals states that Toon "routinely provided me with the most undesirable job assignments," and when union representatives reported the assignments to management, Toon "admitted" giving her the worst assignments and told her that "the shit is going to hit the fan" because it was reported to management. Id. Shortly thereafter, Ryals successfully bid on a job on another shift. However, a year later, on February 28, 2005, Ryals was reassigned to Toon's shift, and, Ryals states, Toon promptly resumed his harassing behavior, assigning Ryals to undesirable work assignments, denying her overtime requests, and "recommending disciplinary action without cause." Id. at 1-2. On March 30, 2005, Ryals filed a written complaint about Toon's harassment to AA's Human Resources Department ("HR"). HR dismissed her complaint as failing to establish a violation of company policy. Id. at 2. Once again Ryals successfully bid out of Toon's shift, but ten months later, on January 23, 2006, she was notified she had been reassigned to Toon's shift. She complained and was transferred to another shift. Ryals alleges that as soon as she began working on the new shift, Terry Buckler, a white co-worker, stated that Ryals's white husband should not have married her because she is black and then Buckler began harassing Ryals. He frequently cursed at her and was verbally abusive. In addition, he falsely accused Ryals of reporting him to HR for harassment, causing Ryals to be shunned by her co-workers. Id.; R.36-13 at 2 (Dracon Declaration). According to Ryals, after she complained about Buckler to management in March 2006, she again worked under Toon's supervision. R.36-2 at 2. Toon assigned her to understaffed work crews and then reported her to management for lack of productivity, "bragging that he was going to 'get rid' of" Ryals. Id. On April 7, 2006, Ryals reported both Toon and Buckler to supervisor Tammy Lance, but Toon continued requiring Ryals to perform undesirable assignments and denying her requests for overtime. Id. at 2-3. On April 27, 2006, Ryals was injured performing a task Toon directed her to complete alone even though the job was normally performed by more than one mechanic. Id. at 3. On May 1, 2006, Lance criticized her for leaving work early on the day of the injury, and, during that conversation, Ryals reported that Toon was creating a hostile work environment. Id. A week later, after no action was taken on her oral complaint, Ryals, with the assistance of the union, submitted a formal written complaint "describing . . . Toon's continuing harassment and disparate treatment." Id. According to Ryals, the unfavorable work assignments, ridicule and intimidation continued unabated. On October 3, 2006, Ryals alleges she was assaulted by a co-worker who had earlier demonstrated hostility towards her. Id. at 6. The assault caused Ryals significant injuries requiring her to be out of work on medical leave until March 27, 2007, the date on which she filed her charge with the EEOC. Id. 3. District Court's Decision The district court granted defendant's motion for summary judgment and dismissed all of Ryals's claims. R.47. The court stated that Ryals "had 300 days from the date of the alleged employment practice to file a charge with the EEOC" and, accordingly, "absent some exception to the 300-day limitations period, Ryals can seek recovery only for conduct that occurred after May 31, 2006." R.46 at 9. The court characterized Ryals's argument that her hostile work environment claim challenges a single unlawful employment practice as invoking the "'continuing violations [sic] doctrine,' which works as an exception to Title VII's limitations period." Id. (citation omitted). According to the court, the continuing violation doctrine is an equitable doctrine that "applies only in exceptional circumstances" to ensure that a claim does not become time-barred before an individual has a reasonable basis for believing that a Title VII violation has occurred. Id. at 10-11 (internal quotation omitted). The court noted that Ryals complained to AA as early as 2005 challenging "the very pattern of conduct she now insists supports her hostile-work-environment claim." Id. at 15. Based on this fact, the court concluded that Ryals "not only perceived the alleged discrimination and harassment, but was aware that she had a right to be free from it." Id. at 17. Consequently, the court ruled, "the equitable nature of the continuing-violations doctrine prevents the doctrine from being applied to Ryals's case." Id. Therefore, even if Ryals's statement was admitted into evidence, the court could not consider incidents it describes occurring before May 31, 2006, because Ryals believed she had a cognizable claim prior to filing her Title VII charge. Id. The court also ruled that Ryals's statement describing a pattern of harassment beginning in 2004 and continuing to the present should be excluded as inadmissible hearsay. Id. at 15 n.1. The court did not address the fact that the statement was attached to Ryals's EEOC's sworn charge. Instead, the court characterized it as a "letter . . . to the EEOC" and a "statement made separate from this case now offered to prove the truth of the matters asserted in [it]." Id. at 15 n.1, 26-27. The court also excluded the sworn declaration of Avionics mechanic Elizabeth Dracon for similar reasons. The court ruled, "Dracon's statement was made in connection with another proceeding, albeit a non-judicial one, and is now being offered in this Court to prove the truth of the matters she asserts. It is therefore hearsay." Id. at 25-26. ARGUMENT THE DISTRICT COURT APPLIED INCORRECT LEGAL STANDARDS IN EXCLUDING EVIDENCE OF ACTS OF HARASSMENT ATTESTED TO BY THE PLAINTIFF IN CONSIDERING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Ryals alleges that AA violated Title VII by subjecting her to a hostile work environment based on race, national origin and sex since at least 2004. AA moved for summary judgment arguing, inter alia, that there is not sufficient evidence to support a finding that the harassment to which Ryals was subjected was sufficiently severe or pervasive to constitute a hostile work environment. It is well settled that in deciding whether harassment created a hostile work environment, the fact finder should consider "the cumulative effect of the individual acts of harassment." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). In granting summary judgment in this case, the district court did not consider all of the acts of harassment. The court excluded evidence of harassment occurring more than 300 days before Ryals filed her EEOC charge on the ground that a challenge to those acts was time-barred. The court also refused to consider evidence contained in an attachment to Ryals's charge on the ground that it was inadmissible hearsay. As we discuss below, the court applied erroneous legal standards in failing to consider this evidence. A.Contrary to the District Court's View, Ryals May Challenge Acts of Harassment Occurring More Than 300 Days Before She Filed Her Charge Whether or Not She Realized That AA was Violating Title VII at the Time of the Earlier Harassment. Many of the incidents of harassment on which Ryals's claim is based occurred more than 300 days before she filed her March 27, 2007, charge of discrimination. The Supreme Court has held, however, that "[i]t does not matter, for purposes of the statute [of limitations], that some of the component acts of the hostile environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability." Morgan, 536 U.S. at 117-18. As this Court has explained, "[b]ecause a hostile work environment generally consists of multiple acts over a period of time, the requisite EEOC charge must be filed within 300 days of any action that contributed to the hostile environment." EEOC v. WC&M Enterprises, Inc., 496 F.3d 292, 298 (5th Cir. 2007). Therefore, Ryals can properly challenge all of the harassing conduct based on her 2007 charge as long as the acts occurring within 300 days of her charge were part of the same hostile work environment as the earlier harassment. Although the district court cited the holding in Morgan, the court erroneously characterized the standard announced by the Court as involving the continuing violation doctrine which, according to the court, "works as an exception to Title VII's limitations period." Id. (citing, inter alia, Berry v. Bd. of Supervisors, 715 F.2d 971, 979 (5th Cir. 1983)). The district court added that the continuing violation doctrine is an equitable doctrine that "applies only in exceptional circumstances" to ensure that a claim does not become time-barred before an individual has a reasonable basis for believing that a Title VII violation has occurred. Id. at 10-11 (internal quotation omitted). To the contrary, the Morgan Court made clear that the statutory language, not equitable principles, govern what constitutes a hostile environment claim. As the Court said, "[t]o assess whether a court may, for purposes of determining liability, review all such conduct, including those acts that occur outside the filing period, we again look to the statute" and the text makes clear that "the timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened" regardless of whether "some of the component acts of the hostile work environment fall outside the statutory time period." Morgan, 536 U.S. at 116-17. The Court went on to expressly reject the notion that equitable principles preclude a plaintiff like Ryals from challenging earlier harassment if she was aware of the conduct at the time and believed it created an unlawful hostile work environment. Morgan, 536 U.S. at 117 n.11. The Court disapproved of appellate cases adopting that standard, including the Berry decision relied on by the district court. See Morgan, 536 U.S. at 107, n.3, 108 (citing Berry as an example of an approach inconsistent with the terms of the statute). Therefore, the district court's application of the test enunciated in Berry, which requires the plaintiff to show that equitable circumstances justify an "exception" to the statutory timeliness standard, cannot be sustained. See R.46 at 14-15. That is not to say that equitable considerations can never affect the timeliness of a hostile work environment claim after Morgan. The Court recognized that there may be circumstances where a defendant can show that it would be unfairly prejudiced by application of the rule that all similar incidents comprising a hostile environment claim may be challenged regardless of when they occur so long as one such act occurred within 300 day from filing the charge. Morgan, 536 U.S. at 121; see also Stewart v. Miss. Transp. Comm., 586 F.3d 321, 328 (5th Cir. 2009) (issues of timeliness are "tempered by the court's equitable powers"). According to the Court, the doctrine of laches is available to such a defendant and may justify a departure from the ordinary rule if the defendant can show that the plaintiff unduly delayed filing a charge and the defendant suffered unfair prejudice as a result. See Morgan, 536 U.S. at 121. Here, the defendant has not invoked the doctrine of laches, nor has it attempted to make the showing required to justify a departure from the ordinary rule that a plaintiff may challenge all events contributing to a hostile work environment as long as at least one of them occurred within the charge-filing period. Accordingly, under Morgan, the only question is whether the alleged harassment that occurred more than 300 days before Ryals filed her charge was sufficiently related to the harassment that occurred thereafter so that it could be found to be part of the same hostile work environment. Neither the defendant nor the district court questioned that it was sufficiently related. On the contrary, the court relied on the similarity between the acts of harassment to find that Ryals knew that she was the victim of unlawful harassment long before she filed her charge. See R.46 at 15. Although the court's conclusion that this fact barred her from challenging the earlier harassment is wrong for the reasons stated above, the court's finding that the earlier harassment was similar to the later harassment was correct. Accordingly, the court should have considered all of the harassment in ruling on defendant's motion for summary judgment. B.The Statement Ryals Incorporated in Her EEOC Charge Was Not Hearsay and Should Have Been Considered As Evidence Supporting Ryals's Opposition to Summary Judgment. Ryals submitted to the district court a statement appended to her sworn EEOC charge and incorporated by reference in the charge. The statement details events supporting her allegation that she was subjected to a hostile work environment and retaliation. The district court refused to consider this evidence, ruling that it was "inadmissible hearsay." R.46 at 17. According to the district court, the statement could not be considered in ruling on the defendant's motion for summary judgment because it was an out-of-court statement and, "[w]ere Ryals to offer this evidence at trial to prove the facts of her claims, it would be excluded as hearsay . . . ." R.46 at 15, n.1. This was error. Contrary to the district court's view, there is no requirement that written statements be admissible at trial before they may be considered by a court ruling on a summary judgment motion. It is well settled that documents that would be inadmissible at trial can be considered on summary judgment if they could be reduced to admissible form at trial. See Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006) (affidavits from plaintiffs, if submitted, would have been admissible on summary judgment); see also Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1136 (11th Cir. 1996) (same). This Court has applied this principle in Title VII cases. See, e.g., WC&M Enterpr. 496 F.3d at 398 (5th Cir. 2007) ("[s]worn affidavits . . . are certainly appropriate for review on a Rule 56 motion for summary judgment"). In fact, this Court has held that even unsworn statements submitted to the EEOC may be admissible at the summary judgment stage. This Court has reversed a district court's exclusion of unsworn statements submitted to the EEOC, holding that because they can be otherwise authenticated with circumstantial evidence, such statements are admissible. See Linton v. City of Marlin, 25 F.3d 706 (5th Cir. 2001) (unsworn letter submitted to EEOC admissible where contents consistent with declarant's subsequent description). And this Court ruled admissible unsworn charges authenticated after the charge filing period. See Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78-79 (5th Cir. 1983) (unsworn charges later perfected are admissible). The statement at issue in this case was appended to Ryals's verified EEOC charge. The charge expressly refers to the attached statement, and the statement expressly states that it is being submitted with the charge. (See infra at 4, n.4). Although the statement was not separately verified, it was incorporated by reference in the verified charge. Therefore, the district court's failure to consider Ryals's statements in the attachment was inconsistent with the law of this Court. Because the attachment is a sworn statement by someone who can attest to the facts therein, the district court erred when it excluded Ryals's attachment to her charge.<5> Cf. Duplantis v. Shell Offshore, Inc., 948 F.3d 189, 191 (5th Cir. 1991) (letter properly excluded where it was unsworn and there was no indication that the declarant was qualified to attest at trial to its contents). Ryals's statement describes similar incidents of harassment by the same persons from 2004 until the date of her charge. This evidence supports Ryals's argument that the more recent harassment is part of the same hostile environment as the earlier harassment. In holding that the earlier harassment could not be challenged, the district court made inconsistent statements about the evidence. Although the court flatly states at one point that there is no evidence that the acts are all part of the same hostile environment, it later describes the statement Ryals attached to her charge, which the court acknowledges recounts harassment dating back at least until early 2005, as reflecting "the very pattern of conduct she now insists supports her hostile-work-environment claim." R.46 at 13, 15. The court's statement that there was no evidence that the earlier harassment was related to the later harassment was apparently based on its erroneous view that Ryals's March 2007 statement is inadmissible hearsay. See R.46 at 13. Ryals stated that she was the only black female licensed junior mechanic in her department and that at least since early 2004 her supervisor, Tommy Toon, picked on and singled her out for scrutiny more than others, reprimanded her more harshly, denied overtime opportunities to her more than to others, and repeatedly passed her over for promotion. Therefore, the statement identifies acts "sufficiently 'related' . . . to constitute a single 'practice' for purposes of 42 U.S.C. § 2000e-5(e)(1)." See Stewart, 586 F.4d at 329 (all harassing incidents of same type committed by same supervisor should be considered even though some occurred in the pre-limitations period).<6> CONCLUSION For the foregoing reasons, the ruling below should be reversed, and this case should be remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel /s/ Susan L.P. Starr ___________________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4727 susan.starr@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation set forth in the Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B) and Fifth Circuit Rule 32. This brief contains 3,339 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. /s/ Susan L.P. Starr ___________________________ Attorney for Equal Employment Opportunity Commission Dated: February 9, 2011 CERTIFICATE OF SERVICE I hereby certify that on February 9, 2011, the foregoing brief of the EEOC as amicus curiae was electronically served on the counsel listed below via the Court's CM/ECF Notice of Activity system at their electronic addresses or record: Attorney for Plaintiff-Appellant Tigist Ryals: Robert Joseph Wiley, Esq. rwiley@robwiley.com Attorney for Defenant-Appellee American Airlines, Inc. Lars Lee Berg, Esq. lars.berg@kellyhart.com /s/ Susan L.P. Starr _____________________ Susan L.P. Starr, Esq. ********************************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> The complaint also alleges that the same conduct violated 42 U.S.C. § 1981. R.1. <3> This recitation of the facts is based on assertions in Ryals's sworn declaration, the sworn EEOC charge, including the statement attached to that charge, and the sworn declaration of Elizabeth Dracon originally submitted to EEOC. Although the district court admitted into evidence the charge form, it excluded Ryals's attachment to that charge as inadmissible hearsay. Because we believe the court erred for the reasons set forth infra, we rely on these sworn statements in the factual statement. <4> Ryals's statement, entitled "Submission to the EEOC by Tigist Ryals Dated March 27, 2007," was appended to her sworn EEOC charge. The statement was referred to on the face of the charge ("[s]ee attached for specifics") and the charge was referred to on the first page of the statement ("I, Tigist Ryals, submit the following information in support of my charges against American Airlines, Inc. alleging discrimination based on race, sex, national origin and retaliation . . . ."). <5> For the same reason, the district court erred in excluding as hearsay the sworn statement submitted to EEOC by Ryals's co-worker Elizabeth Dracon, attesting to events that she personally witnessed. R.46 at 25-26. <6> To the extent the district court suggests that the evidence may be insufficient because it fails to specifically identify the basis for the hostility manifested in each alleged incident of harassment, the court erred. R.46 at 19. Ryals was not required to establish whether a particular discriminatory act was based on her race, her sex, her ethnicity, or some combination of these characteristics. See Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 109-10 (2d Cir. 2010) ("Rather than aiding the decisional process, the attempt to [di]ssect a person's identity at the intersection of race, [gender and national origin] often distorts or ignores the particular nature of their experiences") (internal citation omitted); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987) (same).