____________________________________________ No. 07-1123 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. SUNBELT RENTALS, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Peter J. Messitte, Presiding _______________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM. . . . . . . . . . . . . . . . . . 1 A. A Reasonable Jury Could Find that the Harassment was Unwelcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. A Reasonable Jury Could Find that Ingram was Harassed Because of His Religion. . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. A Reasonable Jury Could Find that a Hostile Work Environment Existed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 D. A Reasonable Jury Could Find that Sunbelt Had Notice of the Religion-Based Harassment and Negligently Failed to Remedy It. . . 25 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995). . . . . . . . . . . . 11 Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994). . . . . . . . . . . . 16 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). . . . . . . . . . . . 8 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . . 17, 18 Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir. 2005). . . . . . . . . . . . 8 City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978). . . . . . . . . . . . . . . 15 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000). . . . . 7-8, 13, 14, 15 Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751 (7th Cir. 1998). . . . . . . . . . . . 21 Eddy v. Waffle House, Inc., 482 F.3d 674 (4th Cir. 2007). . . . . . . . . 20, 21 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . . . 18, 21 Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005). . . . . . . . . 6-7 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . 9, 14, 23, 24 Hartsell v. Duplex Prods., Inc., 123 F.3d 766 (4th Cir. 1997). . . . . . . . . . . . 6 Hurley v. Atl. City Police Dep't, 174 F.3d 95 (3d Cir. 1999). . . . . . . . . . . . 8 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007). . . . . . . . . 21, 23 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998). . . . . . . . . . . 7 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). . . . . . . . . 4, 22, 24-25 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003). . . . . . . . . 10, 27 Oncale v. Sundownder Offshore Servs., Inc., 523 U.S. 75 (1998). . . . . . . . . . . . 5, 14-15 Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997). . . . . . . . . . . . 21 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000). . . . . . . . . . . . 4 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . . . . . . . . 22-23 White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 2004). . . . . . . . 15-16, 19 Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996). . . . . . . . . . . . . 6 Miscellaneous 1997 Ann. Surv. Am. L. 117. . . . . . . . . . . . . . . 16 ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM. In its opening brief, the EEOC explained that it had adduced enough evidence to create a genuine issue as to each element of the Commission's religion-based hostile work environment claim. The EEOC argued that a reasonable jury could find on this record that Ingram was subjected to harassment that was (1) unwelcome; (2) because of his Islamic faith; and (3) severe or pervasive enough to create a hostile or abusive work environment. EEOC Br. 32- 46. The Commission also contended that a reasonable fact finder could conclude that (4) Sunbelt is liable for this hostile work environment because it had actual or constructive notice of it but was negligent by failing to rectify it. EEOC Br. 46-58. Because the EEOC created a jury question as to each of these four elements, the district court erred in granting summary judgment on the Commission's harassment claim. In its response brief, on point after point, Sunbelt makes the same mistakes the district court made in dismissing this claim. Sunbelt fails to observe simple summary judgment principles, misrepresents the record evidence, and misapplies Title VII case law. A. A Reasonable Jury Could Find that the Harassment was Unwelcome. In its brief, Sunbelt first alleges that the EEOC "failed to show that the harassment it now complains of was unwelcome" because Ingram did not "complain about or communicate his dissatisfaction with the alleged comments that invoked his religion." Sunbelt Br. 28. Sunbelt's position is unsupportable. Ingram made clear to the harassers, his superiors, and Sunbelt Human Resources that the ongoing religion-based harassment was unwelcome. Gray indicated that co-workers knew the harassment frustrated and infuriated Ingram and that "the guys gave him a hard time" specifically to provoke this reaction. (JA168.) Ingram complained directly to the Sunbelt dispatcher about the anti- Muslim terrorist cartoon posted on the dispatch-area wall. (JA522.) Ingram also objected to bigoted comments made by Sunbelt employee Sal, telling Sal "I am not for the Taliban" and "I'm an American and I'm a Muslim, that's my stance." (JA49,50,51,517-18.) Ingram said Sal's remarks made him "very uncomfortable" and he reported them to Warner (Sal's boss). (JA49,51,517.)<1> On several occasions, Ingram defended wearing his beard and Kufi to co- workers who ridiculed him for his appearance, stating "I'm a Muslim and that's why I wear this beard, that's why I wear this Kufi, and it's part of my religion. And I'm not taking it off." (JA29,40.) When Gray told Ingram he could use a stapler as a mock airplane to scare others, Ingram challenged Gray for characterizing all Muslims as terrorists. (JA524.) Ingram defended his need to take prayer breaks to Gray when Gray complained about them. (JA27.) Ingram told Parater "don't speak about my faith if you're not going to say the truth about it." (JA55-56,491.) Ingram complained directly to Riddlemoser about the anti-Muslim comments Warner made. (JA47-48,514.) In fact, according to Gray, Ingram complained to Riddlemoser "[w]henever anything that Clinton believed to be inappropriate was said or done to him." (JA169 (emphasis added).) Ingram's written complaint explained that he had reported ongoing harassment to Riddlemoser repeatedly - that Ingram had "made it very clear to the manager this is harassment and I am tired of it" and that it was "an unhealthy environment to work in." (JA80,82.) In an e-mail, Wilson told Riddlemoser that Ingram was complaining about harassment "based on his religion" and that Ingram had "voice[d] his concerns to you on several occasions and nothing has been done." (JA209.) Ingram also complained about the harassment to district manager Dempster, and even asked Dempster to transfer him out of the Gaithersburg store because of it. (JA535-37.) This evidence easily creates a jury question as to whether the religion-based harassment Ingram experienced at Sunbelt was not welcome. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (the "correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome"); Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) (if the victim tells the harasser the remarks were offensive and objectionable the "unwelcomeness" requirement has been satisfied). Any argument by Sunbelt to the contrary is simply belied by the record evidence. B. A Reasonable Jury Could Find that Ingram was Harassed Because of His Religion. Sunbelt concedes that Ingram was the object of various anti-Muslim comments and conduct perpetrated by Ingram's colleagues and customers. See Sunbelt Br. 5, 8-12. However, Sunbelt argues that the EEOC did not show that "all of the acts of alleged harassment contained a religious nexus." Id. at 23 (emphasis in original). For example, Sunbelt stresses that non-Muslim employees also had business cards defaced and computers frozen, and were the objects of practical jokes and prank phone calls. Id. at 29. Sunbelt asserts there is no basis for the contention that "the pranks and obscenities directed toward [Ingram] were evidence of religious harassment." Id. at 31. Sunbelt argues as if the EEOC's case rests primarily on neutral "pranks." See Sunbelt Br. 33. Sunbelt ignores the abundance of specific jokes, insults, slurs, and at least one threat Ingram witnessed and experienced which were undeniably and intentionally anti-Muslim. The EEOC has explained that these comments and conduct, clearly connected to Ingram's religion, formed the crux of the hostile work environment here. Compare EEOC Br. 4-13 (detailing the explicitly anti- Muslim harassment) with id. at 13-15 (discussing non-overtly anti-Muslim incidents). Sunbelt also advances the incorrect premise that each incident must be expressly religion-based to be considered. This is not the law. The relevant inquiry is whether Ingram was harassed because of his religion. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998) (explaining that Title VII prohibits discrimination "because of" religion in the terms or conditions of employment and that this includes "harassment of any kind that meets the statutory requirements"). As long as a reasonable fact finder could conclude that the harassment would not have occurred but for Ingram's Islamic faith, it is actionable - even if it is not explicitly religious in nature. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997) (explaining an employee is harassed "'because of' his or her [religion] if, 'but-for' the employee's [religion], he or she would not have been the victim of discrimination'" (quoting Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 142 (4th Cir. 1996))). Here, viewing the evidence in the light most favorable to the EEOC, a reasonable jury could find that even some of the facially "neutral" incidents were related to Ingram's religion. Ingram's timecards disappeared more often on the day Ingram attended congregational prayer. (JA73-74,80.) After Ingram accused Warner of taking his timecard, Warner called him a "towel head" - an unmistakably anti-Muslim epithet. (JA168.) Gray admitted co-workers were motivated to mistreat Ingram because Ingram was a Muslim, testifying: I observed that our work associates had no respect for Clinton being a Muslim . . . . It is a fact that derogatory comments and statements were made to Clinton in the workplace regarding his religion. Because he took it so personally, it made things worse and like little children, the guys gave him a hard time. Examples of specific incidents are when someone took one of Clinton's business cards and defaced it by writing "Dumb Ass Clinton" on the card and then leaving it out where customers could see it. Clinton also experienced someone removing his time card and putting [it] whe[re] he could not find it on several occasions. (JA168 (emphasis added).) Because, as Gray's testimony demonstrates, there was a direct causal connection between the specific mistreatment Ingram experienced and his Islamic faith, the fact that non-Muslim co-workers may also have been the object of similar obscenities, jokes, or pranks is immaterial. The EEOC is not arguing, despite Sunbelt's protestations, that Ingram should be "immune from any kind of mistreatment because he's a Muslim." Sunbelt Br. 30. However, mistreatment inflicted on Ingram precisely because he is a Muslim must be considered in assessing whether Title VII has been violated here. See, e.g., Conner v. Schrader- Bridgeport Int'l, Inc., 227 F.3d 179, 194-95 (4th Cir. 2000) ("Whether Ms. Conner experienced unlawful discrimination - even in SBI's 'rough' environment - must be determined based on 'the simple test of whether the evidence shows 'treatment of a person in a manner which but for that person's sex would be different.''") Since a reasonable jury could conclude that some of the seemingly "neutral" harassment would not have happened if Ingram had not been a Muslim, this conduct counts in assessing whether Ingram's work environment had become hostile or abusive because of his Islamic faith. The EEOC thus created a jury question as to the second ("because of" religion) element of its claim. C. A Reasonable Jury Could Find that a Hostile Work Environment Existed. The EEOC also demonstrated a genuine issue with respect to whether the harassment was severe or pervasive enough to be actionable. In arguing otherwise, Sunbelt again fails to account for relevant record evidence and misapplies pertinent precedent. As the Supreme Court stated in Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993), courts and juries can only determine whether harassment has created a hostile or abusive working environment "by looking at all the circumstances[,]" including "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." Sunbelt recites this governing standard, Sunbelt Br. 31-32, but then errs in applying it. For example, Sunbelt denies the anti-Muslim harassment was pervasive, arguing that Ingram was "the target of what was essentially a handful of isolated religious insults over approximately a two-year period," Sunbelt Br. 24, 31, and that any anti-Muslim conduct "was relatively infrequent," Id. at 33. Yet there is abundant record evidence to the contrary. See EEOC Br. 4-13, 36-40. A reasonable fact finder could find that Ingram actually was the target of incessant anti-Muslim mistreatment. Ingram testified the harassment was "ongoing." (JA553.) Gray said anti- Muslim slurs were made to Ingram at Sunbelt "often." (JA168 (emphasis added).) Customers laughed when Ingram had to go pray and told him he looked like the Taliban on various occasions. (JA57,400,532.) Fortna said "all employees made comments referring to the Taliban." (JA107 (emphasis added).) A Sunbelt employee named Chad also said that "a lot of employees" were talking "[l]ike Muslim religion is bad." (JA190 (emphasis added).) Parater made "ignorant comments" about Islam "several" times. (JA491.) Warner, Fortna, and Gray all insulted Ingram's beard and Kufi (e.g., saying he looked like the Taliban) often. (JA29-43,504-05.) Ingram had to defend wearing his Kufi "several times." (JA29.) Ingram testified he "can't count" the number of times Warner made derogatory remarks about his appearance. (JA42.) Ingram said it was "always" - that "it happened at least more than 10 or 20 times" and "was repeated over and over again." (JA42,43.) Gray harassed Ingram about having to pray "several times." (JA26.) Gray also insulted Ingram's religion and appearance "like an ongoing thing, daily . . . ." (JA44 (emphasis added).) Thus, viewed in the light most favorable to the Commission, the record reveals that the anti-Muslim harassment Ingram experienced was anything but isolated, sporadic, or infrequent (as Sunbelt would have this Court believe). The evidence easily establishes a jury question as to whether the harassment was pervasive enough to be actionable. See, e.g., Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129, 1131 (4th Cir. 1995) (reversing summary judgment because a "reasonable person could easily find [the] atmosphere hostile" where for just six months and "almost daily" an Iranian plaintiff's work group leader and "other co-workers" called the Plaintiff anti-Iranian names). Sunbelt also argues that the harassment in this case was not severe. A reasonable jury certainly could conclude otherwise. In a post-September 11th environment where anti-Muslim animus was palpable and Ingram was the only Muslim employee, a cartoon was posted on a workplace wall depicting Muslims as terrorists (suggesting whoever posted it felt other Sunbelt employees would likely enjoy it and probably shared the same anti-Muslim sentiment). (JA53,521.) Employees regularly talked about the Taliban and how "Muslim religion is bad." (JA107,190.) Ingram was singled-out in front of co-workers when Sunbelt employee Ron looked at him and shouted that it was no surprise the D.C. snipers were Muslims. (JA158,169.) Sal suggested that because Ingram was a Muslim, he may be on the side of the Taliban, could not be trusted, was un-American (even though he is an American citizen), and was not welcome in his own country. (JA40-51,518.) Warner ignored these remarks by his subordinate, and instead called Ingram a "towel head" in front of Fortna, Gray, and others. (JA42,49,101- 03,156,168,501,517.) Warner, Gray, and Fortna made fun of Ingram's beard and Kufi. (JA29,30,43,501-02,504-05.) Warner told him he looked like the Taliban and "made fun of" Ingram's religion. (JA39.) Gray said Ingram was not a "genuine Muslim" in front of Arab customers who may have been Muslims. (JA43.) Gray called Ingram a "fake ass Muslim want-to-be turb[an] wearing ass." (JA54.) Gray indicated Ingram could easily pass as a terrorist. (JA52,524.) Gray and Parater criticized Ingram for praying and reading the Koran at work, and complained to their boss about it. (JA23,24,26,27,162,163,198-200,414,422- 23,469,470.) Parater also slandered Ingram's religion in front of co-workers and customers. (JA55-56,490-91.) Parater stated that all Muslims and Arabs in Saudi Arabia should be "f'[ed]," "blow[n] up," and "kill[ed]." (JA56,541-42.) Warner, in front of co-workers, even threatened to kill Ingram for praying at work. (JA41,81,218,583.) Despite this evidence, Sunbelt alleges that what happened to Ingram could not be considered severe because it did not "r[i]se above the natural flow of a 'rough and ready' equipment rental business." Sunbelt Br. 25. Sunbelt criticizes the EEOC for failing to "account for the actual conditions in the equipment rental industry, where pranks, foul language and disagreements are common." Id. at 30. This sweeping generalization about the nature of the entire equipment rental industry is sheer speculation. There is no evidence that the entire industry was indeed "rough and ready" as the district court ruled. See EEOC Br. 43. Thus, the district court and Sunbelt have broken basic summary judgment rules in finding facts - especially where, as here, the facts have no record support. Moreover, what is dispositive is whether Ingram's particular work environment had become hostile or abusive because of his religion. Sunbelt criticizes the EEOC for focusing on this relevant inquiry, and emphasizes instead the largely irrelevant issue of whether workers at Sunbelt's Gaithersburg facility sometimes acted crudely. See Sunbelt Br. 30-31. The record does reveal (as the EEOC acknowledged in its opening brief, EEOC Br. 43) that Ingram's co-workers played pranks on one another and used profanity. But this Court has never recognized an "assumption of the risk" defense to a harassment claim. See EEOC Br. 44-45. Moreover, as already discussed, the harassment being challenged here primarily consisted of explicit anti-Muslim jokes, epithets, and at least one threat, and other co-worker comments and conduct which occurred because of Ingram's reactions to this anti-Muslim mistreatment. To the extent the fact that Ingram's co- workers teased or provoked each other is at all relevant, it certainly does not preclude a finding that colleagues subjected Ingram, specifically, to religion-based (and hence actionable) harassment. Sunbelt asserts that it should not be held accountable for every mere "perceived slight or indignity Ingram claims to have suffered during his employment." Sunbelt Br. 31. In characterizing what happened to Ingram in this innocuous way, Sunbelt inappropriately discounts the harassment's cumulative effect. See Conner, 227 F.3d at 193-94 (chastising a district court for analyzing the evidence of harassment in a "disaggregated fashion, contrary to Harris's 'totality of the circumstances' test"). Indeed, in contending that the harassment in question "amounted to mere" and "seemingly innocuous pranks," Sunbelt Br. 24, and ignoring the abundance of explicitly anti-Islamic mistreatment, Sunbelt contravenes the Supreme Court's and this Court's command to consider the harassment in context and the work environment as a whole. See, e.g., Oncale, 523 U.S. at 81-82 (explaining the objective severity of harassment should be judged "considering 'all the circumstances'" and that "the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed"). Again, the jury should have been allowed to evaluate the social context at Sunbelt's Gaithersburg location and to weigh what mitigating or ameliorative effect, if any, the use of profanity and the prevalence of workplace pranks generally had on the anti-Muslim environment in which Ingram worked. See Conner, 227 F.3d at 194-95 (noting "the jury must therefore evaluate the employer's treatment of Ms. Conner in light of the work environment at the Altavista plant, which was, as the district court found, 'an unpleasant place to work' where none of the employees were treated 'tenderly'" (quoting City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978))). Sunbelt discounts the significance of even undeniably anti-Muslim comments and conduct. For example, Sunbelt reasons that, unlike the "N" word used against African Americans, "none of the insults to which Ingram claims to have been subjected has ever been found to automatically transform the conditions of employment and create an abusive working environment." Sunbelt Br. 34. To be sure, the "N" word is a singularly insidious epithet against African Americans. See, e.g., White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (it is "pure anathema"). However, it is not for Sunbelt (or the district court as a matter of law) to decide that anti-Islamic slurs like "towel head" are relatively less repugnant to Muslims generally or were less degrading to Ingram specifically. Again, a fact finder should have been allowed to evaluate this question. See Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (whether harassment is severe or pervasive enough to be actionable is "quintessentially" a question of fact for the jury). Sunbelt also challenges the Commission's contention that the harassment here was made more severe because it was perpetrated in part by supervisors. Sunbelt alleges the EEOC "strains to argue" that Fortna and Warner were Ingram's supervisors. Sunbelt Br. 34. Sunbelt, once again, has misrepresented the record significantly. Drawing all inferences in favor of the EEOC, Fortna and Warner could indeed be considered Ingram's supervisors. Warner was the shop foreman and thus clearly a Sunbelt manager. (JA647.) Warner became "the acting manager" of the Gaithersburg location whenever Riddlemoser was absent. (JA40,41,510,549,647-48.) Fortna did not have the same "rental manager" title as Ingram as Sunbelt suggests, Sunbelt Br. 35. Rather, he was known as the "purchasing manager" and "lead rental manager." (JA27,71,269,360,650.) If both Riddlemoser and Warner were gone, Fortna was the acting manager of the store. (JA510-11,650.) Ingram testified Fortna was "from my understanding, the supervisor." (JA27,71,360,650.) Gray also testified that "it was just an unwritten thing" that "Barry [Fortna] was our supervisor." (JA165.) Riddlemoser was asked in his deposition if Fortna "supervise[d] Mr. Ingram." Riddlemoser replied "He is the lead rental manager, yes." (JA269 (emphasis added).) Further, despite what Sunbelt alleges, Sunbelt Br. 35, 43, both men apparently were able to discipline Ingram. Disciplinary notices issued to Ingram unequivocally list Fortna on the "supervisor" line. (JA292-94.) And far from merely maintaining the "status quo," as Sunbelt would have this Court believe, Sunbelt Br. 35, on one occasion when Riddlemoser was out, Warner angrily ordered Ingram to clock out for the day and go home. See id. (citing JA548- 49,647). Therefore, it is Sunbelt which "strains" in representing to this Court that Fortna and Warner were not Sunbelt supervisors. Sunbelt also improperly discounts the legal significance of this supervisory status, arguing it "made little difference to their ability to harass Ingram, and [thus] to the severity of any harassment." Sunbelt Br. 35. Sunbelt, citing to Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), claims that supervisory harassment only "impacts the sufficiency of a hostile work environment claim where the supervisor holds 'immediately (or successively higher) authority over the employee,' and where the harassment is 'aided by the agency relation.'" Sunbelt Br. 35. Ellerth and its companion case Faragher v. City of Boca Raton, 524 U.S. 775 (1998), established the standards for determining when it would be appropriate to hold employers vicariously liable for supervisory harassment. The EEOC is not attempting to do so (e.g., is not arguing that Sunbelt is liable because the harassment here was "aided by the agency relation"). See EEOC Br. 46-58 (invoking a negligence theory of liability in this case). Rather, the Commission contends that the supervisory status of Fortna and Warner is highly relevant to the question of whether their conduct, specifically, heightened the hostility in Ingram's workplace. In Ellerth, the Supreme Court acknowledged that "[a] supervisor's power and authority invests his or her harassing conduct with a particular threatening character." Ellerth, 524 U.S. at 763. The Supreme Court in Faragher similarly recognized that "a supervisor's conduct may have a greater impact than that of colleagues at the same level." Faragher, 524 U.S. at 803; id. (explaining that "an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker"). And that is precisely the EEOC's point: Because Warner and Fortna were supervisors, a reasonable fact finder could conclude that their harassment was inherently more intimidating, embarrassing, and threatening, and that it therefore intensified the abuse in Ingram's workplace disproportionately. Sunbelt disagrees, claiming that Warner's and Fortna's supervisory status made no difference because Ingram did not feel "helpless to protest the harassment." Sunbelt Br. 35-36. Yet Sunbelt ignores the repercussions of Ingram's protests. Notably, after Ingram accused Warner of taking his timecard, Warner called him a "towel head" in front of numerous colleagues, and then ordered Ingram to clock out and leave the company premises. (JA42,101- 03,156,168,501.) Thus, Ingram's efforts to defend himself from ongoing harassment by Warner - the very courage Sunbelt says shows supervisory harassment was not more severe - actually resulted in further supervisory humiliation. Cf. BFI Waste Servs., 375 F.3d at 398 (recognizing that "[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates"). Sunbelt similarly misses the mark in minimizing Warner's threat that if he "caught" Ingram praying at work that would "be the end of him." (JA41,81,218,583.) Sunbelt first appears to deny the threat was made at all, arguing that the "alleged harassment involved no direct threats of physical violence." Sunbelt Br. 24. But drawing all reasonable inferences in favor of the Commission, Warner's statement cannot be viewed as anything other than the expression of an intent to bring about physical harm to Ingram solely because he was practicing his faith. Sunbelt also asserts that Riddlemoser "could not find an employee to support" or "corroborate Ingram's hearsay allegations[,]" insinuating there is no evidence beyond Ingram's self-serving testimony to support that the threat was ever made. Sunbelt Br. 15-16, 38. Of course, Sunbelt neglects to mention that it was not Ingram's allegation to begin with. A mechanic named Bob heard Warner threaten Ingram. (JA41,81,218,583.) Bob then told Ingram about it. (JA41.) For summary judgment purposes, the district court was required to credit this evidence. See Eddy v. Waffle House, Inc., 482 F.3d 674, 678 (4th Cir. 2007) (in reviewing a grant of summary judgment "we assume, as we must, that the remark was actually uttered, was heard by Mr. Lander, and was related by him to the [victim]"). Sunbelt argues that Warner's threat is immaterial in any event because Ingram never testified "he was frightened or intimidated" by it. Sunbelt Br. 38. That is beside the point. Warner denigrated Ingram's religion to Ingram's co- workers and conveyed the clear notion that physical retribution against a Muslim employee because that employee was engaging in religious practices was acceptable (even understandable). A reasonable fact finder could find that this physical threat by a Sunbelt supervisor - Ingram's acting manager at times - was inappropriate and offensive in the extreme. For the same reason, despite what Sunbelt argues, id., a reasonable jury also could conclude that "the fact that Sunbelt actively accommodated Ingram's desire to pray on a daily basis and to leave work every Friday" in no way mitigated the severity of Warner's actions. Indeed, it appears Warner threatened Ingram precisely because he was allowed to pray on the premises. Sunbelt also claims, citing only out-of-circuit precedent, that this was at most "second-hand harassment" and therefore less serious. Sunbelt Br. 38 (citing Cowan v. Prudential Ins. Co. of Am., 141 F.3d 751, 758 (7th Cir. 1998)). This Court's case law is clear: The fact that Ingram did not hear the threat first-hand is immaterial. Recently, in Eddy v. Waffle House, Inc., this Court held that "[i]t is irrelevant whether the [victim] heard the epithet for himself or whether he came to know through somebody else that such language is being used" as "[i]n either case, a reasonable person would feel it to be a hostile environment." Eddy, 482 F.3d at 678; see also Jennings v. Univ. of N.C., 482 F.3d 686, 704 (4th Cir. 2007) (Gregory, J., concurring) (explaining "the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment" (citing Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997))). Along the same lines, Sunbelt improperly discounts evidence establishing that Sunbelt's Muslim customers were routinely subjected to anti-Islamic slurs. Sunbelt claims that "the EEOC is unable to demonstrate that such harassment was a part of Ingram's personal experience, or that it affected his work environment." Sunbelt Br. 39 (emphasis in original). Once again, Sunbelt fails to account for the actual record evidence in this case and to understand the applicable legal standards. Ingram worked at the rental counter right beside Gray every day. (JA194,425,629-30.) Muslim customer Abolhassan Nejati testified that Gray would routinely refer to him as "sun nigger," "terrorist," "Bin Laden," "Hezbullah," "Ayatollah," "Saddam Hussein," and/or "Kadaffi." (JA178,179-88.) Gray called him these names "every time" he dealt with Gray. (JA180,184,185- 86.) Drawing all inferences in favor of the EEOC, a reasonable jury could conclude that Ingram must have been present for some or most of these anti- Muslim insults directed at customers. This case is about whether Ingram's environment had become hostile or abusive because of Ingram's religion. See Meritor, 477 U.S. at 65 (holding Title VII "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult" (emphasis added)); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (stating that "[w]e are, after all, concerned with the 'environment' of . . . hostility, and whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and [her harasser]"). Because Ingram and his fellow rental managers worked in a store renting equipment to Sunbelt customers, Ingram's work environment clearly encompassed interactions between Ingram, Ingram's co-workers, and customers. A reasonable fact finder could find that because Ingram was required to work right next to someone who repeatedly harassed Muslim customers in degrading and deplorable terms, Ingram's workplace became permeated with discriminatory intimidation, insult, and ridicule based on Ingram's religion. Cf. Harris, 510 U.S. at 19 (considering harassment directed at both plaintiff and her female co-workers); Jennings, 482 F.3d at 696 (providing that "[e]vidence of a general atmosphere of hostility toward those of the plaintiff's gender is considered in the examination of all the circumstances"). Sunbelt next asserts that there was "no evidence that the alleged harassment negatively affected [Ingram's] work." Sunbelt Br. 24; id. at 38-39. Yet again, the record evidence suggests otherwise. Ingram's relationships with his co-workers and customers were strained significantly to the point where Ingram even asked Dempster to transfer him to another store. (JA535-37.) The harassment became so severe that Ingram had to stop speaking with Gray. (JA44-45.) The harassment made him "frustrated" and "angry" and he began to get into altercations with his co-workers and customers to "defend" himself and his religion. (JA29,41,44,50- 51.) Sunbelt cites some of these facts in its brief, Sunbelt Br. 35-36, 37, in an attempt to depict Ingram in the worst light possible, but fails to consider the possible connection between Ingram's confrontational behavior and the incessant and escalating harassment in the workplace. Further, even if Ingram's work performance had not deteriorated, the Commission's claim would still be viable. The Supreme Court in Harris specifically ruled that while factors like whether the harassment unreasonably interfered with an employee's work performance "may be taken into account[,]" "no single factor is required." Harris, 510 U.S. at 23; see also id. at 25 (Scalia, J., concurring) (the test under Title VII "is not whether work has been impaired, but whether working conditions have been discriminatorily altered"). Likewise, the fact that Ingram may not have suffered physical or mental harm, which Sunbelt stresses, Sunbelt Br. 24, 38-39, is hardly dispositive. The Supreme Court in Harris also held that "even without regard to these 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 race, gender, religion, or national origin offends Title VII's broad rule of workplace equality." Id. at 22. The Supreme Court thus eschewed any inquiry that "may needlessly focus the factfinder's attention on concrete psychological harm, an element Title VII does not require." Id.; cf. Meritor, 477 U.S. at 66 (noting that "an employee's protections under Title VII extend beyond the economic aspects of employment"). Sunbelt's emphasis on this non-dispositive factor is thus misplaced. D. A Reasonable Jury Could Find that Sunbelt Had Notice of the Religion-Based Harassment and Negligently Failed to Remedy It. Finally, Sunbelt suggests the EEOC failed to recognize there must be "some basis for imposing liability on the employer" in hostile work environment cases. Sunbelt Br. 27 n.2. Of course the EEOC is well aware of this fourth element of a harassment claim. The Commission's opening brief explained in great detail the abundant evidence that, at a minimum, created a genuine issue as to whether Sunbelt was liable for the co-worker harassment in this case because the company had actual or constructive knowledge of the religion-based hostile work environment but failed to remedy it. See EEOC Br. 46-58. It is unclear whether Sunbelt is arguing that Sunbelt never had notice of religious harassment, or that it only had notice of it after Ingram faxed a written complaint to Wilson. Compare Sunbelt Br. 25 ("Sunbelt did not have sufficient notice of any religious harassment" (emphasis added)) with id. at 44, 46 (EEOC "offered no evidence that Ingram complained about religious harassment until he told Wilson" (emphasis added)). Either interpretation of the evidence is flawed. As stated above in the discussion on the "unwelcomeness" requirement and detailed at length in the EEOC's opening brief, EEOC Br. 47, a reasonable fact finder could find that Ingram complained early and often about religion-specific harassment to Sunbelt management. Sunbelt asserts "[t]here is no evidence that Ingram ever complained, or that Riddlemoser was aware, of explicit religious harassment." Sunbelt Br. 17. Sunbelt selectively cites portions of Riddlemoser's deposition in which Riddlemoser states that neither Ingram nor anyone else ever told him that Ingram was experiencing religious harassment, specifically. See id. (citing JA660-62). However, a reasonable jury could conclude that Riddlemoser's testimony on this point is not credible. Wilson sent Riddlemoser an e-mail specifically telling him that Ingram was complaining about religious harassment. (JA209.) Riddlemoser himself then responded to Wilson via e-mail, stating that none of the harassment was religion-based and that Riddlemoser had accommodated Ingram's religion enough by letting him pray at work. (JA217.) Riddlemoser also testified that he spoke with Ingram about the concern Ingram raised with Wilson "that these things were happening because of his religion." Riddlemoser also testified that he asked Ingram "what he considered harassment [based] on his religion and what the issues were." (JA665-67.) This evidence contradicts and undermines Riddlemoser's assertion that he never knew Ingram was complaining about religious harassment. This evidence also would enable a reasonable jury to conclude that Sunbelt had actual notice of the anti-Muslim harassment long before Ingram complained about it in writing. Sunbelt asserts that the EEOC rests its claim that Sunbelt also had constructive notice of the ongoing harassment "merely" on "Ingram's statement that during some of the alleged harassment, Riddlemoser was 'in his office'" Sunbelt Br. 44. However, the EEOC never suggested that this was the only evidence of constructive notice here. To the contrary, the Commission's opening brief detailed abundant evidence from which a reasonable jury could conclude that Sunbelt should have known about the anti-Muslim environment in which Ingram was working. See EEOC Br. 49. This Court has held that an "employer cannot avoid Title VII liability for coworker harassment by adopting a 'see no evil, hear no evil' strategy" and that "[k]nowledge of harassment can be imputed to an employer if a 'reasonable [person], intent on complying with Title VII, would have known about the harassment." Ocheltree, 335 F.3d at 334. The evidence in this case, evaluated properly for summary judgment purposes, satisfies this constructive notice standard. Sunbelt also claims that it "investigated and adequately resolved Ingram's complaints pursuant to its carefully laid out procedure for reporting and investigating workplace harassment." Sunbelt Br. 44-45. But even assuming Sunbelt's anti-harassment policy was "carefully laid out" on paper (which is at the least debatable), it was defective and dysfunctional in practice. See EEOC Br. 51, 55-58. Even though the policy did not require employees to provide written notice of harassment, Ingram's repeated verbal complaints were completely ignored. Sunbelt essentially concedes as much, acknowledging that it only conducted an "investigation" "after Ingram made the complaint to Wilson." Sunbelt Br. 44-45 (emphasis added). A reasonable jury could find that Sunbelt failed to take measures reasonably calculated to halt the harassment even then. See EEOC Br. 52-54. In arguing otherwise, Sunbelt again distorts the record. Sunbelt indicates that Riddlemoser required employees to sign the timecard memorandum after Ingram filed his written complaint. See Sunbelt Br. 45. But the record reveals this happened before Ingram contacted Wilson. See EEOC Br. 20 n.14. Moreover, this proved completely ineffectual in ending the timecard abuse. See id. at 53. In addition, Sunbelt alleges (without providing any record citations) that "Ingram told Dempster he was satisfied with Sunbelt's response to his complaint." Sunbelt Br. 45. Actually, Ingram never said any such thing. Quite the contrary, after Sunbelt's alleged "investigation" of Ingram's complaint, Ingram soon told Dempster that the harassment was starting to happen again. (JA59.) Dempster's response was to call Ingram "paranoid" and accuse him of "trying to build a case against us." (JA58,59,227,600.) Viewed in the light most favorable to the Commission, this evidence would allow a reasonable jury to conclude that Sunbelt was negligent in responding to known anti-Muslim harassment and therefore liable for it. The EEOC created a genuine issue as to the fourth and final element of its case. CONCLUSION For all these reasons and those presented in the EEOC's opening brief, the EEOC respectfully requests that this Court reverse the district court's grant of Sunbelt's motion for summary judgment on the EEOC's hostile work environment claim. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6991 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that 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. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov Date: July 30, 2007 CERTIFICATE OF SERVICE I certify that on July 30, 2007, I served the requisite number of originals/copies of this brief by mailing them via Federal Express overnight delivery to: Clerk of Court United States Court of Appeals for the Fourth Circuit Lewis F. Powell, Jr. United States Courthouse Annex 1100 E. Main Street, Suite 501 Richmond, VA 23219-3517 Patricia J. Hill, Esq. Smith, Gambrell & Russell, LLP Bank of America Tower 50 North Laura Street, Suite 2600 Jacksonville, FL 32202 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> Sunbelt represents that "Ingram never complained to a manager about comments that [Sal] made." Sunbelt Br. 10 (citing JA515.) This is patently wrong. Ingram unequivocally testified he told Warner - Sal's supervisor, the shop foreman, at times the "acting manager" of the Gaithersburg location - about Sal's insulting remarks. (JA515-16.) <2> Contrary to Sunbelt's characterization, Sunbelt Br. 9, 28, when Parater said that he wanted to be a Muslim so he could have eight or ten wives, Ingram did not "laugh" or "joke" about it. Parater testified that after Parater made this comment, Ingram "laughed" or "smiled" or gave "just a smirk, maybe." (JA631-32.) However, Ingram testified that he "complained" about Parater's remark and told Parater "don't make false statements about my religion." (JA490-91.) Gray stated that comments like this particular one by Parater made Ingram "become angry." (JA159,169.) <3> Sunbelt points out that Gray testified in his deposition that by "work associates" he meant "customers." Sunbelt Br. 11-12. A reasonable jury could find that Gray's belated explanation simply is not believable given the overall context and content of the paragraph of the affidavit in which Gray used the word "work associates." Moreover, even if a reasonable fact finder did believe Gray meant "customers," this only confirms that Ingram was being harassed in violation of even Sunbelt's own anti-harassment policy and Title VII. (JA141 (Sunbelt's anti- harassment policy providing Sunbelt "will not tolerate harassment of Sunbelt's employees by anyone" including any "client, customer or other regular visitors of Sunbelt")); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (recognizing an employer is liable for third-party harassment of its employees if it ratifies or condones the conduct by failing to investigate and remedy it after learning about it); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998) (also adopting negligence theory of liability for the harassing acts of customers). <4> Sunbelt notes that Gray said in his deposition that when he referred to these "derogatory comments and statements" he meant "an incident" where Warner called Ingram a "towel head." Sunbelt Br. 12. Again, a reasonable jury could find that Gray's recharacterization of his earlier affidavit is not credible, especially because Gray in the affidavit specifically referred to "comments" and "statements" (plural) and not to "an incident" (singular). Similarly, in his affidavit Gray also said that such "comments were made often." (JA169 (emphasis added).) <5> The test for actionable harassment is whether it is severe or pervasive. See EEOC Br. 41-42; Sunbelt Br. 41. The more severe the incidents the less pervasive they need be (and vice versa). See, e.g., Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005) (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 statue" (internal quotations omitted)); Brooks v. City of San Mateo, 229 F.3d 917, 296 (9th Cir. 2000) (same); Hurley v. Atl. City Police Dep't, 174 F.3d 95, 115 n.14 (3d Cir. 1999) (same). While it is not legally necessary, in this case the Commission has created a genuine issue as to whether the harassment at issue was both sufficiently severe and sufficiently pervasive. See EEOC Br. 38. <6> Given this evidence, Sunbelt founders in attempting to distinguish cases like Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003) (en banc), on the grounds that they involved "a daily barrage of harassment." Sunbelt Br. 33. So does this case. Sunbelt also needlessly clouds the relevant issue in asserting that "[m]oreover, unlike Ocheltree, where all of the plaintiff's former coworkers were men, not all of Ingram's coworkers at Sunbelt were of one religion." Id. Sunbelt does not elaborate as to why this a pertinent point, and it is a false and unhelpful comparison in any event. Ocheltree was the only woman in her workplace. Ingram was the only Muslim at Sunbelt's Gaithersburg location. In both cases, the victim of harassment was inside the relevant protected class and all the harassers were outside of it. <7> Sunbelt claims that Ingram abandoned customers "on 50 or more occasions" to go pray. Sunbelt Br. 3. Quite the contrary, EEOC Br. 11 n.7, the evidence viewed in the light most favorable to the EEOC demonstrates that Ingram never left in the middle of a transaction to go pray. (JA109-10,201.) <8> Sunbelt insinuates, misleadingly, Ingram testified it was "the norm" that Ingram used profanity. Sunbelt Br. 4, 31. Actually, Ingram testified it was "the norm" that Warner cursed. (JA499.) Ingram admitted he cursed at others at work, but said he did so no more than half a dozen times. (JA547.) There is no evidence in the record that Ingram ever played pranks on other employees. To the contrary, for example, Riddlemoser testified he had no knowledge that Ingram ever made prank phone calls (even though the other employee often did so). (JA703-04.) Cf. Conner, 227 F.3d at 196 (actionable harassment where victim "was the regular target of the unwelcome conduct rather than a willing participant in such conduct"). <9> A report to the Task Force on Gender, Racial and Ethnic Fairness in the Courts of the U.S. Court of Appeals for the Second Circuit determined that the epithet "towel head" is an "outrageously offensive term." 1997 Ann. Surv. Am. L. 117, 212. <10> This included evidence that Warner harassed Ingram and that Fortna was present for much of the anti-Islamic comments that were made to Ingram and customers, and just "smiled" or "laughed" about it. (JA27,71-73,104-06,123,179.) Accordingly, Sunbelt misrepresents the record by claiming that the EEOC failed to provide evidence "that any Sunbelt managers witnessed what a reasonable jury would believe was religious harassment." Sunbelt Br. 46. <11> Sunbelt misleads this Court by asserting that its policy "states that harassment based on religion is not tolerated." Sunbelt Br. 13. Its policy says nothing about religion-based harassment specifically (though it does forbid harassment based upon an employee's "legally protected group status"). (JA142.) While the policy requires employees to report harassment to their supervisors, it does not require Sunbelt managers to act on harassment they witness or of which they become aware, or even to forward complaints of harassment up-the-chain or to Human Resources. (JA141-43.) <12> It was after and in reference to when Wayne Wiles pretended to spit on Ingram's work station - six weeks after the "investigation" of Ingram's written complaint - that Dempster's notes indicate "Clinton was fine with the findings." (JA818.)