Tademy v. Union Pacific Corporation (10th Cir.) Brief as amicus June 28, 2006 ____________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________________________________________ No. 06-4073 ____________________________________________________ RANEE TADEMY, Plaintiff-Appellant, v. UNION PACIFIC CORPORATION, a Utah Corporation, and UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation, Defendants-Appellees. ____________________________________________________ On Appeal from the United States District Court for the District of Utah The Honorable David Sam, Presiding ____________________________________________________ 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 LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Course of Proceedings 2 B. Statement of the Facts 3 C. District Court's Decision 15 ARGUMENT 18 THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL OF THE ACTS OF RACIAL HARASSMENT ALLEGED BY THE PLAINTIFF AS A SINGLE, ACTIONABLE HOSTILE WORK ENVIRONMENT. 18 A. The Incidents of Harassment Were Sufficiently Related to Constitute a Single Hostile Work Environment Under Morgan. 18 B. Tademy May Obtain Relief For the Entire Hostile Work Environment, Including Acts of Harassment Prior to His First Charge. 24 C. Even if the Earlier Acts of Harassment Were Not Part of the Same Hostile Work Environment, the District Court Should Have Considered Them As Background Evidence Supporting Tademy's Claim That He Was Subjected to a Hostile Work Environment During the Charge-Filing Period. 26 CONCLUSION 29 CERTIFICATE OF COMPLIANCE 30 CERTIFICATE OF SERVICE 31 CERTIFICATE OF DIGITAL SUBMISSION 32 TABLE OF AUTHORITIES CASES Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) 26 Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003) 19 Duncan v. Manager, Department of Safety, 397 F.3d 1300 (10th Cir. 2005) 17 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) 21 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) 27 Hirase-Doi v. U.S. West Communications, 61 F.3d 777 (10th Cir. 1995) 15-16, 23-24 n.3 McCowan v. All Star Maintenance, Inc., 273 F.3d 917 (10th Cir. 2001) 27 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) passim Plotke v. White, 405 F.3d 1092 (10th Cir. 2005) 26 Shanoff v. Illinois Department of Human Services, 258 F.3d 696 (7th Cir. 2001) 26-27 United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) 26 Vance v. Southern Bell Telephone & Telegraph, 983 F.2d 1573 (11th Cir. 1993) 27-28 West v. Philadelphia Electric Co., 45 F.3d 744 (3d Cir. 1995) 21 Williams v. New York City Housing Authority, 154 F. Supp. 2d 820 (S.D.N.Y. 2001) 28 STATUTES 42 U.S.C. § 1981 2, 15 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) 30 Fed. R. App. P. 32(a)(6) 30 Fed. R. App. P. 32(a)(7)(B) 30 Tenth Circuit Court of Appeals Emergency Order 5 31, 32 OTHER AUTHORITIES EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (1990), http://www.eeoc.gov/policy/docs/currentissues.html 21 Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual (2006), http://www.eeoc.gov/policy/docs/race-color.html 28 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 an important issue regarding the proper scope of a Title VII claim alleging a hostile work environment. The Supreme Court has held that a plaintiff may challenge all incidents that constitute a hostile work environment, including incidents that would be untimely if considered separately. The district court ruled, however, that incidents that occurred more than 300 days before the plaintiff filed the charge on which this suit is based could not be considered part of the alleged hostile work environment because they were not sufficiently related to the incidents that occurred within the charge-filing period. In reaching this conclusion, the court applied an unduly rigid standard that effectively precludes the plaintiff from including earlier incidents that are similar to the more recent ones. Because resolution of this issue 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 failing to consider all of the acts of racial harassment alleged by the plaintiff as a single, actionable hostile work environment. 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 July 21, 2004, alleging that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 by subjecting him to a hostile work environment on the basis of his race. Joint Appendix, vol. I ("I-J.A.") 1 (district court docket entry), 11 (Complaint). The district court granted summary judgment dismissing all of the plaintiff's claims on February 10, 2006. I-J.A.9 (district court docket entry). Plaintiff's timely appeal followed on March 16, 2006. I-J.A.9 (district court docket entry), IX-J.A.2089 (Notice of Appeal). B. Statement of the Facts Viewed in the light most favorable to the plaintiff, the non-moving party below, the record reveals the following facts. In 1986, Ranee Tademy transferred to Salt Lake City, Utah, to work as a yard conductor for the Union Pacific Railroad Company ("UPRR"). II-J.A.126-28, 141, 153-54 (Tademy dep. 12-14, 88, 144- 45). His principal duties involved moving trains up and down the Salt Lake City rail yard, in both the North and South parts of the yard. II-J.A.142 (Tademy dep. 89); VI-J.A.934-36 (Tademy dep. 151-52, 154). In this capacity, Tademy reported to various managers of yard operations ("MYOs"), who in turn reported to a manager of terminal operations ("MTO"), who ultimately reported to the Salt Lake Service Unit Superintendent. VI-J.A.1197-98 (Wiseman dep. 14-17). From approximately 2000 through early 2004, Cameron Scott was the Superintendent of the Salt Lake Service Unit. III-J.A.447 (Scott dep. 7). Beginning in the mid-1990s, Tademy, who is black, experienced a succession of incidents of racial hostility in the workplace.<2> In 1995, Tademy had a "radio communication problem" with a subordinate, Shane Marvin, because Tademy "would communicate with him on the radio and either he would not respond or he would respond in a delayed manner." II-J.A.328 (Tademy dep. 488). When Tademy approached his engineer, Bud Sadler, and asked him if he knew why Marvin was not responding to him, Sadler replied, "Shane doesn't like black people." II-J.A.328-29 (Tademy dep. 488-89). Tademy reported the incident to the MYO in charge at the time, but UPRR conducted no investigation of the incident until 2001, after Tademy filed his first charge of discrimination. II- J.A.336-37 (Tademy dep. 496-97); VII-J.A.1391-97 (Method-Walker UALD letter of 9/13/01). In 1996, Tademy found the word "nigger" scratched onto his locker. II- J.A.177-78, 184 (Tademy dep. 207-08, 225). Tademy reported the graffiti to a manager, but the incident was not investigated. II-J.A.185 (Tademy dep. 226); VII-J.A.1392 (Method-Walker UALD letter of 9/13/01, at 2). Sometime in 1999, Tademy heard a locomotive engineer, Mark Bleckert, refer to Lyndon Raphael, an African American MYO, as "F-ing Kunta Kinte." II-J.A.347 (Tademy dep. 515); VII-J.A.1397 (Raphael letter of 9/11/01). Tademy reported the incident to Raphael and to Ted Lewis, the Superintendent at the time, but no investigation was ever undertaken and Bleckert was never disciplined or otherwise confronted by management about the incident. VII-J.A.1308-09 (Raphael dep. 92-93), 1397 (Raphael letter of 9/11/01). Tademy testified that, after the incident, he had no further personal contact with Bleckert, but coworkers told him that Bleckert continued to "make[] a lot of racial jokes." II-J.A.353-54 (Tademy dep. 521-22). In 2000, Tademy discovered that someone had written "nigger swimming pool" on the wall of a bathroom, with an arrow pointing to the toilet bowl. II- J.A.194 (Tademy dep. 240); VII-J.A.1305 (Raphael dep. 23). Nearby on the wall, someone had drawn a caricature of a man peering over a wall that Tademy recognized as a "Sambo" character. II-J.A.194 (Tademy dep. 240); VII-J.A.1306 (Raphael dep. 25-26). Tademy reported the incident to Raphael, who in turn reported it to a superior. VII-J.A.1306 (Raphael dep. 26-28). Management had the graffiti removed, without any investigation into who may have been responsible for creating it. IV-J.A.621-22 (Raphael dep. 29-30). On January 29, 2001, Tademy arrived for his shift five minutes late. II- J.A.294 (Tademy dep. 417). David Cagle, an MYO, asked Tademy, in the presence of at least two other employees, "[w]hat time does this job go to work, boy?" II-J.A.294, 296 (Tademy dep. 417, 419). Tademy told Cagle that he found the statement offensive. II-J.A.296 (Tademy dep. 419). On the same day, Tademy reported the incident to his direct supervisor and to the defendant's EEO Hotline. II-J.A.297-99 (Tademy dep. 422-24). Cagle apologized to Tademy, but in a later meeting with a manager Cagle stated that he "didn't understand why 'boy' would be offensive." II-J.A.296, 300 (Tademy dep. 419, 425); VII-J.A.1387 (Method- Walker e-mail of 5/4/01). Cagle later told Norris Wiseman, his supervisor, that he "didn't feel that he had done anything wrong" by calling Tademy "boy." VI- J.A.1213 (Wiseman dep. 145). After Wiseman's investigation into the incident, Scott, in conjunction with Wiseman and Yvonne Method-Walker, UPRR's manager of EEO Compliance, decided on the following as discipline for Cagle: Cagle was required to take a 30- day paid leave of absence from his regular position to attend EEO "train-the- trainer" training in Omaha, Nebraska, and then to travel to different locations throughout the Salt Lake Service Unit to train UPRR employees on EEO policy. VII-J.A.1387 (Method-Walker e-mail of 5/4/01); VI-J.A.1175 (Method-Walker dep. 157-60); III-J.A.456 (Scott dep. 55). Cagle did not perform any training sessions in the Salt Lake City rail yard. VI-J.A.1186 (Method-Walker dep. 233). Cagle's EEO training trip subsequently became a subject of ridicule among Tademy's coworkers, who were heard to comment that, "if you want a paid vacation all you have to do is call Ranee Tademy a boy." VIII-J.A.1519 (Tademy aff. 3); VII-J.A.1244 (Scott dep. 79-80). Method-Walker also testified that she was aware of approximately six complaints about use of the word "boy" in the workplace after Tademy's complaint, and that there may have been more. VI- J.A.1185 (Method-Walker dep. 218-19). Tademy testified that, sometime shortly after this incident, a UPRR manager told Tademy and his crew that "the railroad is watching you because you made that charge against Cagle, and you better watch out because they're watching you." II- J.A.311 (Tademy dep. 461). Bill Cox, another manager, subsequently warned Tademy that Cagle was seeking to have him fired for coming to work a few minutes late. VI-J.A.985-86 (Tademy dep. 450-51). Both Scott and Wiseman testified that neither they, nor, to their knowledge, anyone else, ever warned Cagle not to retaliate against Tademy for filing his complaint. VII-J.A.1244 (Scott dep. 78); VI-J.A.1213 (Wiseman dep. 148). In June 2001, Tademy filed a charge of discrimination with the Utah Antidiscrimination & Labor Division ("UALD"). IV-J.A.611 (Tademy Charge 1). In a subsequent letter to the UALD, Tademy identified six incidents of racial discrimination or harassment, five of which involved him personally: the Marvin incident, the locker graffiti, the "Kunta Kinte" incident, the "nigger swimming pool" and Sambo graffiti, and the Cagle "boy" incident. IV-J.A.613 (Tademy letter of 8/13/01). Tademy had reported all of these incidents when they occurred, but UPRR did not investigate any of them until after Tademy filed his discrimination charge. Id.; VI-J.A.1187 (Method-Walker dep. 237-38), 1223 (Wiseman dep. 230). The sixth racial incident had occurred sometime in 1999, but Tademy only became aware of it in the summer of 2001: Raphael disclosed that someone had written "hang all niggers and jews" on the bathroom wall of the top end shanty. VII-J.A.1397 (Raphael letter of 9/11/01); II-J.A.202-03 (Tademy dep. 250-51). Raphael had the graffiti removed and reported the incident, but there was no further investigation. VII-J.A.1307 (Raphael dep. 38-39), 1397 (Raphael letter of 9/11/01). In January 2002, while Tademy's charge was pending before the UALD, an employee named Charlie White hacked into the UPRR e-mail system and sent out a message under Scott's name, stating, among other things, "Keep an eye on the slaves, seriously." VII-J.A.1323 (Holt dep. 47), 1309 (Raphael dep. 94). Someone made "a significant amount of copies of the computer page, and it was plastered very visibly all over the company property," where Tademy saw it. II-J.A.273 (Tademy dep. 376); VII-J.A.1309 (Raphael dep. 95). After Scott investigated the incident, White was fired, but he returned to work at UPRR between four and six months later. VII-J.A.1309 (Raphael dep. 95-96); III-J.A.475-76 (Scott dep. 106- 07). Scott testified that he thought leniency was appropriate in White's case because White "had a history of hacking his way into different systems within Union Pacific Railroad, not in . . . any type of malicious way or trying to alter anything or find out any type of information; it was more in a practical joke type scenario." III-J.A.476 (Scott dep. 107). Scott also noted that White "was very apologetic to me and wanted to make sure that I understood that it was not directed at me personally." Id. On June 12, 2002, the UALD issued a finding of no cause on Tademy's charge. IV-J.A.637-40 (UALD Determination and Order). The EEOC adopted the UALD's findings and dismissed Tademy's charge, issuing a right-to-sue notice on August 22, 2002. VIII-J.A.1693 (EEOC Dismissal & Notice of Rights). Although Tademy considered filing suit against UPRR after receiving his right-to- sue letter, he decided against suing at that time. He explained that, while his charge was still pending, "I agreed not to pursue a lawsuit against Union Pacific if the company promised it would incorporate annual EEO training into the mandatory Session B Trainings." VIII-J.A.1518 (Tademy aff. 2). Tademy related that Scott had told him that UPRR had agreed to "do on-going annual EEO training," and explained that, "[b]ecause all I ever wanted was to be able to continue working without being subject to ongoing harassment, I decided not to file a lawsuit." Id. According to Scott, UPRR canceled its Session B trainings in 2003 for financial reasons. VII-J.A.1247 (Scott dep. 95-96). In April 2003, Tademy and a white coworker, Richard Puffer, were required to undergo three random drug tests in three consecutive weeks. II-J.A.282 (Tademy dep. 385). The Federal Railway Administration requires that all covered service employees undergo random drug testing. IV-J.A.670-71 (Lietzen dep. 39- 40). A computer program is supposed to choose randomly which employees are to be tested on a given date, based on job positions and shifts rather than by specific employee. IV-J.A.671-73 (Lietzen dep. 40-42). However, UPRR did not verify whether the employees who were tested at any given time were, in fact, the ones selected by the computer. VII-J.A.1337 (Lietzen dep. 80), 1322 (Holt dep. 41). Moreover, white employees who did not work Tademy's shift testified that they were drug tested once every one to three years, if at all. VII-J.A.1302 (Heiner dep. 189) (two or three years ago), 1341 (Peterson dep. 140) (three years ago), 1312 (Rowley dep. 18-19) (never tested); VI-J.A.1214-15 (Wiseman dep. 156-57) (once per year). No other employees were tested three times in the same month. On Saturday, July 4, 2003, Tademy entered the south shanty and found a rope tied into a hangman's noose hanging from a wall clock. II-J.A.229 (Tademy dep. 305); IV-J.A.712 (photo); VII-J.A.1407A (photo). Tademy testified that he was "paralyzed" and "scared" when he saw the noose, and that he went to the restroom and vomited. VI-J.A.960-61 (Tademy dep. 307-08). Tademy attempted to report the incident to the yardmaster immediately, but no one was in the yard office. II-J.A.231 (Tademy dep. 309). Instead, after Tademy finished his shift, he drove to the yardmaster's office and reported the noose to MYO Mike Simmons. II-J.A.236-37 (Tademy dep. 316-17). Later, Tademy also reported the noose incident to UPRR's EEO office and to Blaine Bailey, his union representative. II- J.A.250-51 (Tademy dep. 334-35). On that same day, July 4, Simmons notified Scott that Tademy had found a noose in the south shanty. III-J.A.477 (Scott dep. 112). Scott sent Mark Rowley, a UPRR special agent, to investigate. III-J.A.478-79 (Scott dep. 113-14). Rowley saw the noose and collected evidence from the scene. Id. On July 5, Rowley and Wiseman began interviewing employees in an attempt to discover who hung the noose from the clock. III-J.A.480 (Scott dep. 117). On July 6, Jan Erickson, an employee who worked the afternoon shift, informed a manager that it was he who had hung the rope over the clock. IV-J.A.697 (Erickson dep. 69). Erickson told Rowley that he had no malicious intent when he placed the noose on the clock, stating, "why a rope such as a noose would cause anybody problems is foreign to me," and "a noose is not offensive or demeaning, in my mind." IV-J.A.700-01 (Erickson dep. 76-77), 702 (id. at 93); VII-J.A.1230 (id. at 78-79). Erickson claimed that he had found the noose in the rail yard and decided that he could use it on his truck, so he hung the noose over the clock in the shanty so that he would remember to take it home, but then forgot to take it with him at the end of the day. VII-J.A.1229 (Erickson dep. 57-59). Wiseman and Rowley forwarded the information they obtained from Erickson to Method-Walker and Kathleen Vance, UPRR's Director of EEO and Affirmative Action. III-J.A.482 (Scott dep. 121); VII-J.A.1344 (Vance dep. 4). Method-Walker and Vance recommended that Erickson's conduct be investigated as a "level five offense," which would potentially subject Erickson to termination. III-J.A.449-50, 482 (Scott dep. 18-19, 121). Wiseman chose Peter Sheehey as the hearing officer. III-J.A.483 (Scott dep. 122). After the hearing, Sheehey recommended that the charges against Erickson be dismissed, but after Scott, Vance, and Method-Walker reviewed the hearing transcript, they determined that Erickson should be terminated. VII-J.A.1248 (Scott dep. 131-32). After UPRR decided to terminate Erickson, several managers lobbied for his reinstatement. VII-J.A.1320 (Holt dep. 25-26). Erickson's employment with UPRR was nonetheless terminated, but, approximately six months later, regional management recommended reinstating him. VII-J.A.1321 (Holt dep. 31). The EEO department rejected this recommendation. Id. However, Erickson was eventually reinstated as a result of the appeal process, and returned to work at UPRR in 2005. VII-J.A.1330 (Holt dep. 87), 1413 (Jones letter of 4/22/05); VI- J.A.1219 (Wiseman dep. 200). Erickson was not required to undergo any EEO training in connection with his reinstatement. VII-J.A.1331 (Holt dep. 89). After Erickson's termination, UPRR held several half-hour "town hall meetings" at the Salt Lake City service unit, at which Scott and Method-Walker spoke to assembled employees about the noose incident and how it violated UPRR's EEO policy. VII-J.A.1245 (Scott dep. 85-88). In August 2003, UPRR's harassment policy was amended to include a list of specific examples of prohibited items, which included nooses. VII-J.A.1355 (Vance dep. 138). Scott stated that he directed his managers and Holt to provide training on this issue. IV-J.A.746 (Scott declaration 3,4). However, Wiseman, who was the director of training at the time of the noose incident, testified that he was not aware of any EEO training of the workforce as a result of the incident. VI-J.A.1220 (Wiseman dep. 201). Tademy testified that, after word got out regarding the noose incident and Erickson's termination, he began to experience hostile treatment from his coworkers. II-J.A.257 (Tademy dep. 351). He testified that one coworker refused to speak to him, telling him "[y]ou're the reason Jan is going to get fired." II- J.A.262 (Tademy dep. 356). Other employees gave him the "cold shoulder." VI- J.A.970-72 (Tademy dep. 357-59). When Tademy called Bailey, his union representative, to report his coworkers' treatment of him, Bailey told Tademy that his phone was "ringing off the hook" with complaints from coworkers who were "very upset with [Tademy] because they think that [he] is the one that got Jan in this predicament." VI-J.A.972 (Tademy dep. 359). Bailey also told Tademy that he "[didn't] understand what is offensive by a noose," and that "everybody is going overboard with everything. When is it going to stop?" II-J.A.264-65 (Tademy dep. 359-60). Bailey told Tademy that he was "getting so paranoid I'm afraid to tie my shoes in a knot." II-J.A.265 (Tademy dep. 360). Tademy reported his coworkers' treatment of him, but not Bailey's response, to Method-Walker. II- J.A.265-66 (Tademy dep. 360-61). In the fall of 2003, Tademy was diagnosed with bilateral epicondylitis, as well as depression and anxiety relating to the events at work. X-J.A.2128-29 (Hasby notes of 9/4/03). His doctor referred him to a specialist for further evaluation and treatment of his mental condition. Id. The specialist diagnosed Tademy with post-traumatic stress disorder ("PTSD"), major depression, anxiety, and pain disorder. X-J.A.2095-97 (Etringer dep. 99, 101, 111). Tademy subsequently applied for medical retirement through the Railroad Retirement Board ("RRRB"), and was examined by a psychiatrist in June 2004. X-J.A.2131 (QTC MS Report of 6/10/04 at 1). The psychiatrist diagnosed Tademy with major depression, PTSD, and anxiety disorder. X-J.A.2134 (QTC MS Report at 4). The RRRB granted Tademy's request for permanent disability retirement on June 24, 2004. VII-J.A.1419-20 (RRRB letter of 6/24/04). Meanwhile, in January 2004, Tademy filed a second charge of discrimination with the UALD. IV-J.A.751 (Charge of 1/26/04). The charge described the noose incident, and noted that "[t]hroughout my Union Pacific career, I have experienced and reported many racial occurrences to management." Id. The latest date of discrimination was listed as August 22, 2003, and the box was checked for "continuing action." Id. No determination was made on the merits of this charge by either the UALD or the EEOC. After receiving a notice of right to sue, Tademy commenced this action alleging, inter alia, that UPRR violated Title VII and 42 U.S.C. § 1981 by subjecting him to a racially hostile work environment. I-J.A.24-25 (Amended Complaint at 1-2). C. District Court's Decision The district court granted UPRR's motion for summary judgment. The court initially noted that Tademy relied on other employees' complaints of racial harassment in support of his own claim, but stated, in a footnote, that Tademy could only rely on evidence "relating to harassment of which he was aware during the time he was allegedly subjected to a hostile work environment." IX-J.A.2077 (Memorandum Decision and Order ("Mem.") at 5 & n.1) (citing Hirase-Doi v. U.S. W. Commc'ns, 61 F.3d 777, 782 (10th Cir. 1995)) (internal emendations and quotation marks omitted). The court then observed that, although Tademy received a right-to-sue letter from the EEOC with respect to the "Cagle, Bleckert, Marvin, locker, graffiti, and 2002 e-mail incidents," he failed to file suit within ninety days of his receipt of the letter. Id. at 2079 (Mem. at 7). The court noted that UPRR argues "that by failing to file a lawsuit within the 90 days, all allegations of harassment included in the charge are waived." Id. According to the court, "as a prerequisite to federal jurisdiction for a Title VII claim, a plaintiff must first exhaust his administrative remedies by filing a claim with the appropriate administrative agency," and, the court observed, "[o]ther than as noted, it is undisputed that Tademy failed to exhaust his administrative remedies." Id. at 2080 (Mem. at 8). The court also stated that, "even if the 90 day limitations period were ignored," allegations of conduct occurring more than 300 days before Tademy filed his second charge "are outside Title VII's . . . statute of limitations," and are, therefore, "presumed untimely." Id. (Mem. at 8). The court rejected Tademy's argument that the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), allowed it to consider "all of [Tademy's] allegations supporting his hostile work environment claim." Id. at 2081 (Mem. at 9). The district court observed that, according to the Morgan Court, "because a hostile work environment claim often consists of a series of incidents that may extend beyond 300 days, . . . such a claim 'will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.'" Id. (quoting Morgan, 536 U.S. at 122). The court noted that, according to this Court, Morgan "emphasizes that there must be a relationship between the acts alleged after the beginning of the filing period and the acts alleged before the filing period." Id. (quoting Duncan v. Mgr., Dep't of Safety, 397 F.3d 1300, 1308 (10th Cir. 2005)). According to the district court, "[a]pplying the Duncan/Morgan analysis suggests that Plaintiff's reported incidents [other than the noose incident] are outside the 300 day period and cannot be considered as part of the same hostile work environment claim" because "[t]here is no evidence that the acts were perpetrated by the same employee and the Court is of the opinion that a jury could not rationally conclude that the acts occurred with relative frequency given the time period involved, or that they were all of the same type such that they collectively constitute one unlawful employment practice." Id. at 2082 (Mem. at 10). In any case, the court concluded, the defendant's "intervening [remedial] action disqualifies those acts from being considered as part of Tademy's timely filed claims." Id. at 2084 (Mem. at 12). According to the court, "the random drug tests and the Erickson 'noose' incident are Tademy's only timely allegations in support of his Title VII claim." Id. The court then stated that it "agree[d] with Defendants that none of the timely incidents Tademy asserts in support of [] his Title VII claim . . . meet the requirements for a sustainable hostile work environment claim." Id. at 2085 (Mem. at 13). According to the court, "a jury could not rationally conclude that those acts were so pervasive or severe as to alter the terms, conditions, or privilege [sic] of Tademy's employment." Id. at 2086 (Mem. at 14). The court also stated, without elaboration, that it agreed with the defendant that, "even if the timely filed claims did constitute actionable harassment, Plaintiff cannot show employer liability." Id. at 2087 (Mem. at 15). ARGUMENT THE DISTRICT COURT ERRED IN FAILING TO CONSIDER ALL OF THE ACTS OF RACIAL HARASSMENT ALLEGED BY THE PLAINTIFF AS A SINGLE, ACTIONABLE HOSTILE WORK ENVIRONMENT. A. The Incidents of Harassment Were Sufficiently Related to Constitute a Single Hostile Work Environment Under Morgan. Tademy alleges that he was subjected to a hostile work environment from at least 1995 until he left UPRR in 2003. Many of the incidents of harassment on which his claim is based occurred more than 300 days before he filed his second charge of discrimination. However, the Supreme Court stated in Morgan that "[i]t does not matter, for purposes of the statute [of limitations], that some of the component acts of the hostile work environment fall outside the statutory time period." 536 U.S. at 117. The Court stated, "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 the purposes of determining liability." Id.; see also Davidson v. America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003) (observing that "[k]ey to the Court's ruling [in Morgan] was its determination that the series of acts constituting a hostile work environment constitute only one unlawful employment practice"). Notwithstanding the clear directives of the Supreme Court and of this Court, the district court declined to consider any of the "untimely" acts of harassment in deciding whether Tademy made out a triable hostile work environment claim. The district court applied an improperly rigid standard in concluding that the earlier acts of harassment were not sufficiently related to the harassment which occurred in the limitations period. Under a proper analysis, a jury could reasonably conclude that all of the incidents of harassment alleged by Tademy were part of a single hostile work environment. The district court gave the following explanation for its decision to exclude evidence of earlier acts of harassment: there is no evidence that "the acts were perpetrated by the same employees;" and "a jury could not rationally conclude that the acts occurred with relative frequency," or that they were "all of the same type." IX-J.A.2082 (Mem. at 10). However, with the exception of the drug testing, the incidents alleged by Tademy are "of the same type." All of the incidents that occurred more than 300 days before Tademy's second charge involve the use of threatening or demeaning racial slurs relating to African-Americans, whether delivered orally or written as graffiti. Although the epithets varied over time, they were sufficiently similar to be of the "same type." A reasonable jury could therefore find that these earlier incidents were sufficiently related to the noose incident, which occurred within the charge-filing period, to make them part of the same hostile work environment. The hangman's noose, while a non-verbal act, evokes the same sort of racial hostility manifest in the earlier graffiti and racist remarks. In fact, one of the earlier incidents about which Tademy complained involved the phrase "hang all niggers and jews," a similar message to that later conveyed by the noose. Accordingly, the district court erred in finding that the earlier incidents were not of the "same type" as the noose incident so that they could be found to constitute a single hostile working environment. The district court also faulted Tademy for failing to show that the various incidents of harassment were perpetrated by the same individual or individuals. However, a plaintiff need not show that earlier acts of harassment were committed by the same individuals as were later acts in order to establish that they were part of the same hostile work environment. Tademy alleges that he was forced to work in an environment where he was exposed to repeated episodes of racist graffiti and comments, culminating in the placement of a noose in the workplace. From his perspective, it makes no difference whether these acts were perpetrated by a single individual or they were each done by a different person; in either case he could reasonably conclude that he was exposed to a hostile work environment throughout the course of his employment. See West v. Phila. Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995) (observing that "[n]owhere in the case law establishing [the standard for a hostile work environment] is there a requirement that the discriminatory conduct of each co-worker, who participated in creating the hostile environment, be pervasive and/or on-going"). As both the courts and the Commission have stated, the existence of a hostile work environment is to be viewed from the perspective of the victim. See, e.g., Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) ("[W]e believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim."); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (1990), http://www.eeoc.gov/policy/docs/currentissues.html ("The reasonable person standard should consider the victim's perspective and not stereotyped notions of acceptable behavior."). Moreover, it is particularly unfair to penalize the plaintiff for his inability to establish the identity of the harasser or harassers in a case like this one, where much of the harassment was perpetrated anonymously, and, despite Tademy's prompt complaints, UPRR made no effort to investigate the incidents. Indeed, for all we know, some or all of the graffiti incidents may have been perpetrated by Erickson, the employee who admitted placing the noose in the workplace. Finally, contrary to the implication in the district court's decision, Tademy was not required to show that the harassment was continuous in order to establish that earlier incidents were related to the incidents which were the subject of a timely charge. In Morgan, the Supreme Court expressly noted that a break in the pattern of harassing conduct does not preclude a plaintiff from relying on earlier events, as long as they are related to harassment occurring within the charge-filing period. The Court gave the following example: "Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400." 536 U.S. at 118. According to the Court, "it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole." Id. Unless the later act "had no relation" to the earlier acts, all the acts could be found to be part of a single hostile work environment. Id. Accordingly, the fact that there were gaps between some of the incidents of harassment alleged by Tademy does not mean that they cannot constitute a single hostile work environment. The district court also held that Tademy's allegations did not amount to a single hostile work environment because "UPRR's intervening action disqualifies [the earlier] acts from being considered as part of Tademy's timely filed claims." IX-J.A.2084 (Mem. at 12 (citing Morgan, 536 U.S. at 118)). However, none of the remedial actions taken by UPRR in the period between the earliest graffiti incidents and the noose incident is of the type that would, as the Supreme Court commented in Morgan, render the noose incident "no longer part of the same hostile environment claim." 536 U.S. at 118. There is no evidence in the record that UPRR did anything at all in response to any of the incidents prior to the "boy" incident in 2001, other than to remove the graffiti. As to UPRR's response to Cagle's calling Tademy "boy," a reasonable jury could conclude that the "discipline" was considered so laughable by Tademy's coworkers that they joked about it being an excuse for a paid vacation. Similarly, as to the e-mail incident, a jury could conclude that UPRR's response to White's conduct was insufficient to alter the racially hostile work environment at the Salt Lake City yard, given that White was reinstated shortly after the incident and that UPRR's discipline and reinstatement of White focused mainly on his hacking into the computer system, rather than the racial content of the e-mail itself. Accordingly, Tademy's allegations could properly be viewed as constituting a single hostile work environment of the type described in Morgan.<3> B. Tademy May Obtain Relief For the Entire Hostile Work Environment, Including Acts of Harassment Prior to His First Charge. The defendant argued in district court that Tademy waived his right to sue based on any of the incidents identified in his first charge by failing to file suit within ninety days after his receipt of the right-to-sue letter on that charge. IX- J.A.2079-80 (Mem. at 7-8). It is not clear from the district court's decision to what extent it credited this argument, but, in any case, this rationale has no merit in the context of a hostile work environment claim. To begin with, if Tademy had never filed his first charge at all, but had instead only filed the charge that he filed in 2004, he would clearly be entitled, under Morgan, to recover for the entire hostile work environment.<4> In the context of a hostile work environment claim, there is no basis in Morgan, or in any other precedent, to conclude that a plaintiff's failure to file suit on an earlier charge should cut off the employer's liability in the middle of what the Supreme Court has characterized as a single, ongoing violation. See Morgan, 536 U.S. at 117 (observing that "the entire hostile work environment encompasses a single unlawful employment practice"); see also id. ("As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has 'occurred,' even if it is still occurring. Subsequent events, however, may still be a part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole."). Furthermore, there is no policy justification for penalizing Tademy because he took preliminary steps toward challenging his treatment earlier in the sequence of events comprising the single hostile work environment - thereby giving his employer earlier notice of the problem and an opportunity to correct it without the necessity of litigation.<5> C. Even if the Earlier Acts of Harassment Were Not Part of the Same Hostile Work Environment, the District Court Should Have Considered Them As Background Evidence Supporting Tademy's Claim That He Was Subjected to a Hostile Work Environment During the Charge-Filing Period. Even if all of the incidents alleged in this case were not deemed to be a single actionable hostile working environment, the district court erred by not considering those incidents as background evidence in deciding whether there was a hostile work environment within the limitations period. Morgan, 536 U.S. at 113 (observing that, in the context of discrete acts, Title VII does not "bar an employee from using the prior acts as background evidence in support of a timely claim"); Plotke v. White, 405 F.3d 1092, 1106-07 (10th Cir. 2005) ("Plaintiffs are not precluded from introducing quite probative evidence of earlier acts of discrimination to support a claim of current discriminatory intent, even if prior events are beyond the limitations period.") (internal citations and quotation marks omitted); see also, e.g., Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002) (in harassment context, observing that, "in the wake of Morgan, the jury . . . could consider [the harasser's] conduct prior to [the statutory time period] as 'relevant background evidence'") (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)); Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 705 (7th Cir. 2001) ("[A]lthough the harassing conduct that occurred before the limitations period is time-barred and not actionable, we may consider that conduct . . . to illuminate the nature of the hostility involved in the actionable conduct."). When all of the evidence of harassment is considered, there is sufficient evidence to support a finding that Tademy was subjected to a hostile work environment. Title VII is violated when "the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc, 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). As this Court has observed, "[w]e have repeatedly stated that in a case alleging a violation of Title VII and the presence of a racially hostile work environment, the existence of [racial] harassment must be determined in light of the record as a whole, and the trier of fact must examine the totality of the circumstances, including the context in which the alleged incidents occurred." McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 925 (10th Cir. 2001) (alteration in original) (internal citations and quotation marks omitted). A hangman's noose is an especially offensive and incendiary symbol of racial hatred. See, e.g., Vance v. S. Bell Tel. & Tel., 983 F.2d 1573, 1583 (11th Cir. 1993) (Fay, J., dissenting) ("The noose in [the workplace] context is a symbol not just of racial discrimination or of disapproval, but of terror. . . . No less than the swastika or the Klansman's hood, the noose in this context is intended to arouse fear."); Williams v. N.Y. City Hous. Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) ("Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence. . . . The hangman's noose remains a potent and threatening symbol for African-Americans, in part because the grim spectre of racially motivated violence continues to manifest itself in present day hate crimes."). The noose in this case, viewed in light of the extensive and continued history of racial problems at UPRR and specifically involving Tademy, constitutes a timely act sufficient to support Tademy's claim of a race- based hostile work environment. See Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual (2006), http://www.eeoc.gov/policy/docs/race- color.html (example of conduct sufficiently severe to alter employee's working conditions consisting of "racially charged dispute" and use of epithet "boy" followed by a hangman's noose in the workplace). In characterizing the noose as "a rope Plaintiff interpreted as a noose in 2003," the district court lost sight of the fact that it was considering a motion for summary judgment rather than making findings of fact. For summary judgment purposes, all inferences supported by the record are to be drawn in favor of the nonmoving party, and, thus, the rope in this case should properly have been considered to be a noose. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,975 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 New York State Bar No. 4020079 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: June 28, 2006 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and seven hard copies of the foregoing brief with this Court this 28th day of June, 2006, by first- class mail, postage pre-paid. I also certify, in accordance with this Court's Emergency General Order 5, that I furnished a digital submission of the foregoing brief, in PDF format, to the Clerk of Court at esubmission@ca10.uscourts.gov. I also certify that I served two hard copies of the foregoing brief this 28th day of June, 2006, by first-class mail, postage pre-paid, and one digital version in PDF format via e-mail, to the following counsel of record: Counsel for Plaintiff-Appellant: Counsel for Defendant/Appellee: Erika Birch, Esq. Robert O. Rice, Esq. Strindberg Scholnick & Chamness Ray, Quinney & Nebeker 426 North 300 West 79 South Main St., Suite 700 Salt Lake City, UT 84103 P.O. Box 45385 (801) 359-4169 Salt Lake City, UT 84145-0385 erika@utahworklaw.com (801) 532-1500 rrice@rqn.com Elizabeth E. Theran Attorney New York State Bar No. 4020079 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF DIGITAL SUBMISSION I, Elizabeth E. Theran, hereby certify in accordance with this Court's Emergency General Order 5, that: 1. All required privacy redactions have been made (NONE); 2. On June 28, 2006, I will send an e-mail containing the foregoing brief in digital (PDF) form to the Clerk of Court at esubmission@ca10.uscourts.gov, and to counsel for the parties. The document submitted in digital form is an exact copy of the written document filed with the Court, with the exception of all signatures, which appear in accordance with Amended Emergency Order 5, section (c)(1). 3. The digital submission has been scanned for viruses using Symantec Anti-Virus Corporate Edition version 9.0.3.1000 (most recent update 6/26/06) and, according to that program, is free of viruses. Elizabeth E. Theran Attorney New York State Bar No. 4020079 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov June 28, 2006 *************************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> The evidence in the record reflects that there were numerous incidents of racial graffiti and symbols at the Salt Lake City yard both before and after the incidents identified by Tademy. One employee testified that he had seen the following graffiti in the UPRR shanties during the period of his employment, at least ten or twelve years: "No niggers here," "KKK," "Go home, boy," "a circle with an 'N' in it, or a picture on the window of a face that would represent a black person," "jigaboo," "coons," "spearchucker," and writing on the walls about "Mexicans" and "beaners." VI-J.A.1008, 1010, 1014 (Price dep. 20, 28, 47). The employee also testified that he had seen the word "nigger" written in the dirt on locomotives that needed to be washed, and that he had been told "you ride nigger today" on the days when he was assigned to ride on the back of a switch engine rather than in the front. VI-J.A.1011, 1013 (Price dep. 31, 38). Another employee testified that he had seen the term "nigger" written on railroad switch stands, and that "they've been reported and nothing has been done about them." VII-J.A.1262 (Niau dep. 35-36). Norris Wiseman, a supervisor, testified that he had seen "racist graffiti on boxcars as they go through town," including the word "nigger," which he had seen "many, many times." VI-J.A.1218 (Wiseman dep. 186-87). Wiseman testified that UPRR generally did "nothing" about the racist graffiti on boxcars, but that they tried to cover up or paint over any "four-letter words." Id. (Wiseman dep. 187). <3> The evidence of incidents of racial hostility at UPRR other than those identified by Tademy, described supra note 2, is also relevant to the issue of UPRR's awareness of the extent of the problem and the adequacy of its response to the incidents involving Tademy. Insofar as the district court ruled that, based on Hirase-Doi, evidence of other employees' harassment as to which the plaintiff was contemporaneously unaware may not be considered at all, we note that this was erroneous. In the passage in Hirase-Doi cited by the district court, this Court was addressing the issue of whether an employee considers a work environment to be subjectively offensive, and noted that the plaintiff "could not subjectively perceive [the harasser's] behavior towards others as creating a hostile work environment unless she knew about that behavior." 61 F.3d at 782. This Court did not hold, however, that evidence of the harassment of others, of which the plaintiff was unaware at the time, was categorically irrelevant to every plaintiff's claim. <4> The district court stated, cryptically and without further elaboration, that "[o]ther than as noted, . . .Tademy failed to exhaust his administrative remedies." IX-J.A.2080 (Mem. at 8). However, Tademy's 2004 charge, which explicitly states that the noose was only the latest of "many racial occurrences" that he had experienced and reported "throughout [his] Union Pacific career," was sufficient to support a challenge to all of the alleged racial harassment. <5> If an employer were unfairly misled by a plaintiff's failure to act on a notice of right to sue into thinking that a problem was resolved, the employer could assert a laches defense. See Morgan, 536 U.S. at 121 (when a plaintiff unreasonably delays filing a charge, the employer has a variety of equitable defenses available, including laches). Here, however, Tademy asserts that he refrained from filing suit earlier based on UPRR's representation that it would take steps to alleviate the racial harassment, and UPRR failed to do what it promised. Accepting this assertion as true, for purposes of summary judgment, UPRR would not be able to establish an equitable defense to Tademy's inclusion of the earlier harassment in his suit.