Schiano v. Quality Payroll Systems (2d Cir.) Brief as amicus Nov. 8, 2005 05-4115-cv ____________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________________ NICOLE SCHIANO, Plaintiff-Appellant, v. QUALITY PAYROLL SYSTEMS, INC., and MICHAEL TINTWEISS, Defendants-Appellees. ____________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL ____________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . .2 B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 THE DISTRICT COURT APPLIED AN INCORRECT LEGAL STANDARD IN GRANTING SUMMARY JUDGMENT FOR THE DEFENDANT ON THE PLAINTIFF'S CLAIM THAT SHE WAS SUBJECTED TO A HOSTILE WORK ENVIRONMENT BASED ON SEX..12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 25 TABLE OF AUTHORITIES CASES Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998)) . . . . . . 9 Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002). . . . . . . 10, 11, 16–17 Carrero v. New York City Housing Authority, 890 F.2d 569 (2d Cir. 1989) .14 Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir. 2005) . . . . 15 EEOC v. National Education Association, Alaska, 422 F.3d 840 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . .14–15 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . 8 Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998) . . . . . . . . . . . .20 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . . . . . passim Hayut v. State University of New York, 352 F.3d 733 (2d Cir. 2003) . .20–21 Holtz v. Rockefeller & Co., Inc., 258 F.3d 62 (2d Cir. 2001) . . . . passim Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) . . . . . . passim Mormol v. Costco Wholesale Corp., 364 F.3d 54 (2d Cir. 2004) . . . . . . 9 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) . . . . . . . . .20 Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998). . . . . . 8 Richardson v. New York State Department of Correctional Service, 180 F.3d 426 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . .passim Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997) . . . . . . . . . . 19 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) . . . . . . . . . . . . . 18 Torres v. Pisano, 116 F.3d 625 (2d Cir.), cert. denied, 522 U.S. 997 (1997) . . . . . . . . . . . . . . . . . .13 Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . passim STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. 1, 2 RULES Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . 24 OTHER AUTHORITIES EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915- 050, 2 EEOC Compliance Manual (BNA) (2002) . . . . . . . . . . . . . 15, 22 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents important issues concerning the proper analysis of a Title VII claim that a plaintiff was subjected to a hostile work environment based on her sex. It also raises questions regarding the appropriate role of the district court in deciding whether alleged harassment is sufficiently severe or pervasive to survive a defendant's motion for summary judgment. Because resolution of these issues will affect the EEOC's enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF THE ISSUE<1> Whether the district court erred in holding that the plaintiff failed to adduce adequate evidence of a hostile work environment to survive summary judgment on her sexual harassment claim because she failed to establish that the harassing conduct at issue was sufficiently severe or pervasive. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court granting summary judgment and dismissing all of the plaintiff's claims. The plaintiff initiated this action by filing a complaint on January 30, 2003, alleging, inter alia, that the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by discriminating against her on the basis of her sex—i.e., by "engag[ing] in a course of conduct . . . which collectively resulted in the constructive termination of Plaintiff's employment." Joint Appendix A-4 (district court docket entry #1), A- 16–17 (complaint at 3–4).<2> On July 13, 2005, the district court granted summary judgment to the defendants, dismissing all claims. A-9. Plaintiff's timely appeal followed on July 28, 2005. A-9. B. Statement of Facts Viewed in the light most favorable to the plaintiff, the non-moving party below, the record reveals the following facts. Nicole Schiano began working for Quality Payroll Systems ("QPS") in January 2001 as an administrative assistant for the accounting department in QPS's Bohemia, New York office. A-100–01 (Schiano dep. at 8-9), A-295 (Veit dep. at 98–99). In this position, she reported to Julius Veit, the company's secretary and treasurer. A-101 (Schiano dep. at 9); A-274 (Veit dep. at 15–16). In June 2001, Schiano was promoted to corporate financial assistant; in her new position, she continued to report to Veit. A-102 (Schiano dep. at 10). During Schiano's time at QPS, the president of the company was Herbert Geller, A- 248 (Geller dep. at 19), and the company's vice president was Michael Tintweiss. A- 217 (Tintweiss dep. at 13). In October 2001, Schiano began dating another QPS employee, Matthew Barbis. A-101 (Schiano dep. at 9). On December 14, 2001, Schiano, Veit, Geller, and Tintweiss attended a holiday party at a restaurant in Alexandria, Virginia for QPS employees who worked at QPS's Alexandria and Richmond offices. A-113–16 (Schiano dep. at 21-24). As the group was entering the party, Tintweiss told Schiano, in the presence of Veit and Geller, that he was very happy with her performance at work and that she was ready for a raise soon. A-118–19 (Schiano dep. at 26–27); A- 219 (Tintweiss dep. at 23). When Tintweiss asked Schiano how much of a raise she thought she should receive, Schiano suggested a raise of one hundred dollars per week. A-119, 122 (Schiano dep. at 27, 30); A-219 (Tintweiss dep. at 23). Tintweiss responded to that suggestion by telling Schiano that she was "sleeping with the wrong employee." A-122 (Schiano dep. at 30). Schiano was offended by Tintweiss's comment, and immediately told Geller that she thought it was sexual harassment, but Geller "simply smiled and continued with his conversation." A-124, 146 (Schiano dep. at 32, 54). Later the same evening, as Schiano was speaking with Veit at the party, Tintweiss grabbed her skirt, pushed it several inches up on her thigh, and took a photograph of Schiano's leg and hiked-up skirt with a camera Schiano had brought to the party. A-128, 131–32 (Schiano dep. at 36, 39–40); A-45 (photo). Schiano pushed Tintweiss's hand away and told him to stop. A-129 (Schiano dep. at 37). Immediately after the incident, Schiano told Veit that Tintweiss made her uncomfortable. A-132–33 (Schiano dep. at 40–41). Tintweiss admits that he pushed Schiano's skirt up and took the photo at the party, but he testified that he was "not trying to lift up her skirt," but was "trying to put my hand on her thigh and take a picture, so that we can show it to her, you know, and get her boyfriend jealous." A- 219 (Tintweiss dep. at 21). As Schiano, Tintweiss, and Geller were leaving the party, Schiano commented that the rooms in her hotel were nice, and Tintweiss responded by asking if he could come and see her room. A-152–53 (Schiano dep. at 60–61); A-317 (Schiano aff. par. 11). Schiano responded by telling Tintweiss that he could see Veit's room instead, as it was similar to hers. A-153 (Schiano dep. at 61). The next day, Schiano rode back to New York with Veit. A-142 (Schiano dep. at 50). During the drive, Schiano discussed the events at the party with Veit, and told him that she "did not enjoy being around Michael Tintweiss, working for him or his actions towards me." A-143 (Schiano dep. at 51). Veit replied that he would "try and keep [Tintweiss] away from" Schiano. Id. On five or six occasions between January and April 2002, Tintweiss approached Schiano from behind while she was seated at her desk and would "place his hands on [her] back or [her] neck or [her] shoulders and lean into [her] as [she] was working." A-148, 157 (Schiano dep. at 56, 65). Tintweiss admitted that he touched Schiano in this manner on five or six occasions. A-31 (Tintweiss aff. 7/22/04, par. 5). Schiano testified that she complained to both Veit and McCormick after each incident, and on a more or less weekly basis during this four-month period, and that Veit said each time that he would try to keep Tintweiss away from her. A- 149–50, 159 (Schiano dep. at 57–58, 67); A-317 (Schiano aff. par. 15). During this time, Tintweiss twice repeated his comment that Schiano was "sleeping with the wrong employee." A-158 (Schiano dep. at 66). On one occasion, Tintweiss made this comment in the company's conference room when Schiano mentioned in the presence of other employees that she was going on vacation and that Barbis would not be joining her; Tintweiss remarked that he should go with Schiano on vacation instead of Barbis. A-158 (Schiano dep. at 66); A-220 (Tintweiss dep. at 26–28). In March 2002, Schiano approached Veit and asked about having cubicle walls erected around her desk. A-165 (Schiano dep. at 73). Schiano requested the cubicle walls to give her more privacy at her desk, and because of Tintweiss's conduct. A- 165–66 (Schiano dep. at 73–74). Veit approved the request and, after the walls were installed, Tintweiss would regularly leer or stare at Schiano and make "inappropriate comments" as he passed the opening of her cubicle. A-166–68 (Schiano dep. at 74–76); A-317 (Schiano aff. par. 15). Schiano complained about Tintweiss's leering and comments to Veit and Eileen McCormick, the office manager. A-168 (Schiano dep. at 76). On May 7, 2002, Schiano submitted a letter of resignation to Veit. A-184 (Schiano dep. at 92). In the letter she attributed her decision to resign to "the lack of professionalism exhibited by several managers of the firm." A-188 (Schiano dep. at 96); A-307 (resignation letter of 5/7/02). She specifically referred to the comments about her "sleeping with the wrong employee," and the fact that "one manager has consistently invaded my personal space and has gone as far as ‘touching me'." A-307 (resignation letter of 5/7/02). Schiano met with Geller on Wednesday, May 8, and told him about the incidents involving Tintweiss. A-186 (Schiano dep. at 94). When Geller asked her why she waited so long to make her complaint, she reminded him that she had complained at the holiday party immediately after Tintweiss's first comment to her about "sleeping with the wrong employee." A-187 (Schiano dep. at 95). Geller replied that Tintweiss "had problems of this nature in the past and that it ‘is just the way he is.'" A-318 (Schiano aff. par. 19). C. District Court's Decision On July 12, 2005, the district court granted summary judgment to QPS and dismissed the case. The court held that Schiano had failed to establish that Tintweiss's conduct towards her between mid-December 2004 and May 2005 constituted an actionable hostile work environment under Title VII. A-339 (Memorandum & Order ("Mem.") at 7).<3> The district court began its discussion by noting that "[a] sexually hostile work environment is not actionable under Title VII unless the plaintiff can show that her workplace was ‘permeated with discriminatory intimidation' that was ‘so severe or pervasive' that a reasonable person would perceive it as ‘alter[ing] the terms and conditions of [her] employment for the worse.'" A-338–39 (Mem. at 6–7 (quoting Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999)) (emphasis in original)). The court also observed that the question of whether an environment is hostile or abusive within the meaning of Title VII can be determined "only by looking at all the circumstances," and that those circumstances "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." A-339 (Mem. at 7 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))). The court noted that the Supreme Court has "made it clear that this standard is ‘demanding,' and that ‘conduct must be extreme to amount to a change in the terms and conditions of employment.'" Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). The court ruled that Schiano "cannot demonstrate that her work environment was, objectively, sufficiently permeated with discriminatory intimidation severe enough to alter the conditions of her employment." A-339 (Mem. at 7). The court stated that, "‘[a]s a general matter, ‘isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.'" A-339–40 (Mem. at 7–8 (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (internal quotations omitted))). According to the court, "a plaintiff who complains that her employer touched or grabbed her ‘constantly,' ‘daily,' or ‘whenever he had the opportunity' has alleged sufficiently frequent conduct to indicate a hostile work environment." A-340 (Mem. at 8 (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001))). However, the court stated, "occasional teasing, sexual innuendo, and other inappropriate behavior—even including physical contact do not amount to an alteration of the terms and conditions of the victim's employment." A-340 (Mem. at 8 (citing Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998))). The court stated that "the conduct alleged by Schiano occurred intermittently over a five or six-month period, and was thus not particularly ‘frequent' under the Title VII standard." A-340–41 (Mem. at 8–9). The court also concluded that the incidents Schiano alleged were "not particularly severe." A-341 (Mem. at 9). The court observed that "simple teasing" or "offhand comments" do not amount to actionable discrimination, nor do "occasional threats or insinuations that employment benefits will be granted or denied based on sexual favors." Id. (quoting Holtz, 258 F.3d at 75, and Mormol v. Costco Wholesale Corp., 364 F.3d 54, 55, 58–59 (2d Cir. 2004)). According to the court, "the behavior to which Schiano was subjected (occasional touching, rude comments, and hostile stares) cannot be said to amount to more than ‘relatively innocuous incidences of overbearing or provocative behavior.'" A-342 (Mem. at 10). Next, the court stated that "Schiano does not even suggest that Tintweiss physically threatened her, and she fails to allege facts indicating that Tintweiss ‘humiliated' her under the applicable legal standard." A-342 (Mem. at 10 (footnote omitted)). The court observed that, in order to establish "humiliation," "a plaintiff must show more than that she was ‘simply embarrassed on a handful of occasions.'" A-343 (Mem. at 11) (quoting Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002)). The court distinguished the facts of this case from the facts of Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000). A-343–44 (Mem. at 11–12). In Howley, the plaintiff was a female firefighter "subjected to extremely profane, sexually explicit, and degrading insults, delivered by a subordinate in front of other subordinates," including "comments about her menstrual cycle" and "a charge that she was denied a promotion based on her inadequacies at performing fellatio." A-343 (Mem. at 11 (citing Howley, 217 F.3d at 148)). The court concluded that, because Howley was distinguishable from Schiano's case, and because "Schiano points to no case where behavior similar to that which she experienced was deemed ‘humiliating,'" she failed to show actionable humiliation. A-343–44 (Mem. at 11–12). Finally, the court noted that Tintweiss's conduct "did not unreasonably interfere with Schiano's job performance." A-344 (Mem. at 12). The court observed that "[t]he final factor generally considered in hostile work environment claims is whether the alleged discriminatory conduct altered the plaintiff's working conditions in such a way that it "subvert[ed] [her] ability to function in the workplace." Id. (quoting Alfano, 294 F.3d at 380) (alterations in original). The court went on to note that "[t]his can occur where the plaintiff's authority or her co-workers' confidence in her is undermined, or, more simply, where the plaintiff finds performing her daily tasks to be unbearable." A-344 (Mem. at 12 (internal citations omitted)). The court ruled that, because Schiano stated in her complaint that "‘[t]hroughout the term of her employment with QPS, Plaintiff performed the essential functions of her position in a satisfactory manner' or ‘consistently exceeded the requirements of her position,'" "this factor [] weighs against Schiano as well." A-344 (Mem. at 12). The court concluded, "After evaluating all the factors and viewing the circumstances in their totality, Schiano's allegations fail to indicate that she suffered a hostile work environment. While Tintweiss's behavior toward Schiano was, on occasion, undeniably porcine, it did not alter the terms and conditions of her employment, and thus did not rise to the [sic] Title VII's ‘demanding' hostile work environment standard." A-344–45 (Mem. at 12–13 (quoting Holtz, 258 F.3d at 75)). ARGUMENT THE DISTRICT COURT APPLIED AN INCORRECT LEGAL STANDARD IN GRANTING SUMMARY JUDGMENT FOR THE DEFENDANT ON THE PLAINTIFF'S CLAIM THAT SHE WAS SUBJECTED TO A HOSTILE WORK ENVIRONMENT BASED ON SEX. The district court began its analysis by emphasizing that the standard for establishing a hostile work environment is "demanding," and that only "extreme" conduct will support such a claim. The court then considered the factors identified by the Supreme Court as relevant to this inquiry one by one, comparing the facts of this case with those in other cases. The court concluded that the offensive conduct to which the plaintiff was subjected was not pervasive enough to constitute a hostile work environment, noting that Tintweiss's "undeniably porcine" behavior did not occur as frequently as the harassment in another case. Similarly, the court concluded that the challenged conduct was not sufficiently severe or humiliating, nor did it sufficiently interfere with Schiano's ability to do her job, noting in each instance at least one other case where the challenged conduct was more severe, or more humiliating, or interfered more with the plaintiff's ability to work. Based on this review, the court concluded that the harassment alleged in this case did not alter the terms and conditions of Schiano's employment. The district court's analysis of the plaintiff's hostile work environment claim is inconsistent with the controlling precedent of this Court. The whole tenor of the district court's opinion conveys the court's view that it is extremely difficult for a plaintiff to establish that workplace harassment alters the terms and conditions of her employment. However, this Court has expressly admonished district courts that "the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases." Richardson, 180 F.3d at 439 (citing Torres v. Pisano, 116 F.3d 625, 631–32 (2d Cir.), cert. denied, 522 U.S. 997 (1997)). This Court has also warned that "the ‘appalling conduct' alleged in prior cases should not be taken to ‘mark the boundary of what is actionable.'" Id. (quoting Harris v. Forklift Sys., 510 U.S. 17, 22 (1993)). Rather, as this Court has repeatedly held, "[w]hile a mild, isolated incident does not make a work environment hostile, the test is whether ‘the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis in original) (quoting Torres, 116 F.3d at 632); see also Richardson, 180 F.3d at 436 (observing that the plaintiff's allegations should be evaluated "to determine whether a reasonable person who is the target of discrimination would find the working conditions so severe or pervasive as to alter the terms and conditions of employment for the worse"). In this case, the district court compounded its error by looking at each of the factors relevant to establishing a hostile work environment separately, and then comparing the facts of this case with those of other cases found to be sufficiently severe or pervasive to survive summary judgment. Cases such as Harris and Richardson, among others, establish that the appropriate way to assess whether a work environment is hostile under Title VII is to look at the totality of the circumstances and assess whether the conduct at issue, viewed as a whole, is sufficient to effectuate what a reasonable employee would view as a worsening of her work environment. Harris, 510 U.S. at 23; Richardson, 217 F.3d at 154. This Court has expressly observed that the concepts of severity and pervasiveness are not to be viewed in isolation. Whidbee, 223 F.3d at 69 ("The offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive.") (quoting Carrero v. N.Y. City Hous. Auth., 890 F.2d 569, 578 (2d Cir. 1989)). Moreover, as the Commission and the courts have repeatedly noted, the concepts of severity and pervasiveness are complementary and, in a sense, inversely related for the purposes of hostile work environment analysis: the more severe the conduct, the lesser the requisite showing of pervasiveness, and vice versa. See, e.g., EEOC v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) ("The rule is that the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.") (internal citation and quotation marks omitted); Cerros v. Steel Technologies, Inc., 398 F.3d 944, 951 (7th Cir. 2005) (recognizing that "pervasiveness and severity are, to a certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute") (internal citation and quotation marks omitted); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (BNA) (2002), at 615:0066 ("the more severe the harassment, the less need to show a repetitive series of incidents"). With respect to pervasiveness, the district court concluded that the incidents of harassment at issue in this case were not sufficiently "continuous" or "regular" to be pervasive within the meaning of Title VII, in contrast to another case where this Court held that "a plaintiff who complains that her employer touched or grabbed her ‘constantly,' ‘daily,' or ‘whenever he had the opportunity' has alleged sufficiently frequent conduct to indicate a hostile work environment." A-340 (Mem. at 8 (citing Holtz, 258 F.3d at 75)). Contrary to this Court's explicit admonition in Richardson, the district court improperly construed the Holtz case as establishing a "baseline" for the frequency of actionable harassment, where no language in the Holtz decision itself—or in any of this Court's decisions after Holtz—purports to draw such a line. Similarly, the district court erred in concluding that Schiano failed to establish "humiliation" because she did not suffer verbal abuse "similar to that faced by the plaintiff in Howley." A-343–44 (Mem. at 11–12). The court stated that, although "Schiano may well have felt subjectively humiliated by Tintweiss, . . . she fails to indicate how his behavior was objectively humiliating under Title VII's strict standards." A-342 (Mem. at 10 n.3 (emphasis in original)). Once again, the district court betrays its view that offensive conduct is actionable under Title VII only if it is comparable to the egregious conduct found to support a claim in other cases. The court suggests that Alfano, 294 F.3d at 381, establishes a legal standard by which claims of "humiliation" must be measured, proclaiming that, "[t]o establish ‘humiliation,' a plaintiff must show more than that she was ‘simply embarrassed on a handful of occasions.'" A-343 (Mem. at 11). On the contrary, there is nothing in the Alfano decision to indicate that this Court was establishing a special standard for "humiliation" or otherwise deviating from its consistent practice of refusing to establish specific benchmarks for establishing liability in harassment cases beyond the general requirement that the challenged conduct must be sufficiently severe or pervasive to alter the terms and conditions of the plaintiff's employment.<4> Apart from its conclusion that the events in this case did not rise to the level of those in Howley, the district court engaged in no further analysis of whether any or all of the conduct alleged in this case—including Tintweiss's pushing up Schiano's skirt at the holiday party—could have been found to be humiliating to Schiano. In the Commission's view, there is evidence in the record from which a reasonable jury could conclude that Tintweiss's conduct on the day of the holiday party was precisely such humiliating conduct. Tintweiss, the company's vice president, pushed Schiano's skirt up her thigh and photographed himself doing so at a company party, in the immediate presence of the company's president and secretary/treasurer, and in a roomful of other employees. He also commented to Schiano that she was "sleeping with the wrong employee" in front of the other company officers. Thus, in our view, the district court erred in concluding that Schiano failed to adduce any evidence of "humiliation" simply because she was arguably less humiliated than the plaintiff in Howley. The district court also erred in finding that Schiano's statements in her Complaint that she "performed the essential functions of her position in a satisfactory manner" and that she "consistently exceeded the requirements of her position" "weigh[] against [her]" in assessing whether she adduced sufficient evidence of a hostile work environment to survive summary judgment. A-344 (Mem. at 12). While evidence of impact on an employee's job performance certainly could be evidence of the severity or pervasiveness of the harassment at issue, the fact that an employee continues to perform her job adequately does not imply that the harassment is not severe or pervasive. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 149 (2d Cir. 2003) ("Defendants' suggestion that a hostile work environment claim cannot stand where a plaintiff is still able to successfully perform the basic functions of his or her job is without merit. . . . Whether or not the harassment interferes with an employee's ability to work is merely one factor to be considered when looking at the totality of circumstances to determine whether a hostile work environment has been created."). Indeed, following the district court's rationale would lead to an absurd result: Given the exact same level of harassing conduct and the same finding of subjective offense, courts could find that an employee whose job performance was affected by the harassment would have adduced viable evidence of severe or pervasive harassment, whereas an employee who valiantly continued to perform successfully, but who may have been affected by the harassment in other ways, would have her successful job performance "weighed against" her in assessing her claim. Nothing in the language of Title VII or in the jurisprudence construing it suggests that a plaintiff should be penalized for continuing to perform her job well in the face of adverse conditions, or that she must fail at her job in order to have suffered enough to survive summary judgment. Cf. Harris, 510 U.S. at 22 (observing that the negative effects of a discriminatorily abusive work environment can include "discourag[ing] employees from remaining on the job," and noting that, even without regard to tangible effects, "the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their [protected status] offends Title VII's broad rule of workplace equality"); Whidbee, 223 F.3d at 70 (holding that "the bar is not set so high" as to require that the plaintiff's job be rendered "unendurable" or "intolerable" in order to state a viable claim). Finally, in the Commission's view, the district court lost sight of the fact that it was deciding a motion for summary judgment and not making findings of fact. This Court has held that, because "[t]he question of whether a work environment is sufficiently hostile to violate Title VII is one of fact," summary judgment is appropriate only if "‘no rational juror could view [the defendant's conduct] as . . . an intolerable alteration of [the plaintiff's] working conditions.'" Holtz, 258 F.3d at 75 (quoting Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997), and Howley, 217 F.3d at 154) (alterations in original) (internal citations omitted). See also id. ("‘An Article III judge is not a hierophant of social graces. Evaluation of ambiguous acts . . . presents an issue for the jury.'" (quoting Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir. 1998))). Accordingly, the question before the district court was not whether the court itself believed that Tintweiss's behavior affected the terms and conditions of Schiano's employment, but whether a reasonable jury could find that Tintweiss's conduct altered the conditions of Schiano's employment for the worse. See, e.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 223–24 (2d Cir. 2004) ("To defeat [the defendant's] motion for summary judgment, [the plaintiff] must adduce evidence sufficient to permit a reasonable jury to conclude that her workplace was ‘permeated with "discriminatory intimidation, ridicule, and insult," that [was] "sufficiently severe or pervasive to alter the conditions of [her] employment."'") (quoting Harris, 510 U.S. at 21)). As the Supreme Court and this Court have observed, whether offensive conduct is sufficiently severe or pervasive to alter the terms and conditions of a plaintiff's employment is not a question that is subject to mathematical calculation. See Harris, 510 U.S. at 22 (observing that the question of whether a given work environment is hostile "is not, and by its nature cannot be, a mathematically precise test"); Richardson, 180 F.3d at 439 (observing that there is no "threshold magic number" of incidents that automatically either establishes or precludes liability); Hayut v. State Univ. of N.Y., 352 F.3d 733, 746 (2d Cir. 2003) (observing that "a rigid ‘calculate and compare' methodology ignores the proper role of courts which, at the summary judgment stage, is to construe all facts and draw all inferences in the light most favorable to the nonmovant"). As this Court observed in Richardson, "Reasonable jurors may well disagree about whether [the incidents at issue] would negatively alter the working conditions of a reasonable employee. But the potential for such disagreement renders summary judgment inappropriate." 180 F.3d at 438; see also Whidbee, 223 F.3d at 71 (same). Accordingly, it is important for the district court to maintain its focus on whether any reasonable juror could find a hostile work environment, and refrain from granting summary judgment for the defendant based on its own finding that the plaintiff "did not establish" a hostile work environment, as the district court did in this case. When the incidents in this case are viewed as a whole, they establish a fact pattern from which a reasonable jury could find that Tintweiss's conduct created a hostile work environment for Schiano. The events in this case—all of which occurred within a five-month period between December 2001 and May 2002—began with the company's vice president, Tintweiss, informing Schiano that she was "sleeping with the wrong employee" in front of the company's president and secretary/treasurer. A few hours later, Tintweiss pushed Schiano's skirt up her thigh and took a picture of himself doing so, also in the immediate presence of the other senior officers of the company as well as a roomful of other employees. Schiano immediately complained to her supervisor, the company secretary/treasurer, but nothing was done. Over the next five months Tintweiss continued to harass Schiano, leaning on her and touching her from behind on five or six occasions without her permission or consent, repeating his comment that she was "sleeping with the wrong employee" in the presence of other QPS employees, and continually leering at her and making comments to her. Although Schiano complained repeatedly, and asked her supervisor to separate her from Tintweiss, QPS failed to take any action apart from allowing the cubicle walls to be set up. Taken together, Tintweiss's conduct was sufficient to allow a jury to find that it altered Schiano's working conditions for the worse and created a hostile and abusive working environment for her. See also EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (BNA) (2002), at 615:0066 ("When the victim is the target of both verbal and non- intimate physical conduct, the hostility of the environment is exacerbated and a violation is more likely to be found."). CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the district court's judgment insofar as it dismisses Schiano's Title VII sexual harassment claim and to remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,129 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Dated: CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and nine copies of the foregoing brief with the Court by first-class mail, postage pre-paid, on this 8th day of November, 2005. I also certify that I served two copies of the foregoing brief this 8th day of November, 2005, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Plaintiff-Appellant Saul D. Zabell Zabell & Associates, P.C. 700 Lakeland Ave. Bohemia, N.Y. 11716 (631) 589-7242 Counsel for Defendant-Appellee Robert C. Buff Goldberg & Connolly 66 North Village Ave. Rockville Centre, N.Y. 11570 (516) 764-2800 Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 ********************************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> All citations to the Joint Appendix in this brief take the form A-[page number]. <3> Schiano also alleged that the defendants retaliated against her in violation of Title VII, as well as various state-law claims; the district court granted summary judgment to the defendants on these claims as well. A-345–50. <4> In the passage in Alfano cited by the district court, the Court merely makes the point that there is no one incident in that case comparable to the single incident in Howley that was sufficient to “itself subvert the plaintiff’s ability to function in the workplace.” 294 F.3d at 380–81. By contrast, the court observed, Alfano “was simply embarrassed on a handful of occasions over a period of four years by the boorish behavior of one or more unidentified co-workers and by one fellow officer who made a dumb joke.” Id. at 381 (emphasis added).