No. 07-1009 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. V & J FOODS, INC., et al., Defendants-Appellees ____________________________________________ On Appeal from the United States District Court for the Eastern District of Wisconsin Hon. Rudolph T. Randa District Court No. 05-C-194 ____________________________________________ REPLY BRIEF AND SUPPLEMENTAL APPENDIX OF PLAINTIFF-APPELLANT, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................... ii INTRODUCTION .............................................................. 1 ARGUMENT I. There is considerable record evidence that Wilkins' sexual harassment of Merriweather culminated in a tangible employment action ................ 2 II. Summary judgment on the Faragher/Ellerth affirmative defense to supervisory harassment was improper because V & J maintained a woefully inadequate sexual harassment policy and because Merriweather made numerous and reasonable attempts to stop the harassment .............. 9 III. There is record evidence that Wilkins unlawfully retaliated against Merriweather by firing her ............................................... 19 CONCLUSION ............................................................... 23 CERTIFICATE OF COMPLIANCE SUPPLEMENTAL APPENDIX CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) .............................. 20 Bombaci v. Journal Cmty. Publishing Group, Inc., 482 F.3d 979 (7th Cir. 2007) .................................. 14 Boumehdi v. Plastag Holdings, LLC, ___ F.3d ___, 2007 WL 1583980 (7th Cir. June 4, 2007) ...................................... 5, 7, 8, 21 Burlington Industries v. Ellerth, 524 U.S. 742 (1998)...................... 1 Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir. 2005)...... 14, 17 Cole v. Sears, Roebuck & Co., 47 Wis.2d 629, 177 N.W.2d 866 (1970) ....... 20 Cooke v. Stefani Management Servs., Inc., 250 F.3d 564 (7th Cir. 2001) ... 17 Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) .............. 12, 14, 15 Durkin v. City of Chicago, 341 F.3d 606 (7th Cir. 2003) .................. 11 EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993) .......................... 20 Faragher v. City of Boca Raton, 524 U.S. 775 (1998)..... 1, 9, 11, 13, 15, 17 Gentry v. Export Packaging, 238 F.3d 842 (7th Cir. 2001) ............. 11, 12 Hall v. Bodine Elec. Co., 276 F.3d 345 (7th Cir. 2002) ................... 14 Heuer v. Weil-McLain, 203 F.3d 1021 (7th Cir. 2000) ...................... 20 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).............. 3 Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236 (11th Cir. 1998)..... 4 Loughman v. Malnati Org., 395 F.3d 404 (7th Cir. 2005) ............... 14, 18 Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701(7th Cir. 2002)......... 22 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996).................... 19, 20 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ..................... 3 Olson v. Northern FS, Inc., 387 F.3d 632 (7th Cir. 2004) .................. 4 Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027 (7th Cir. 1998).14 Rhodes v. Illinois Dep't of Transp., 359 F.3d 498 (7th Cir. 2004)..... 11, 12 Roper v. Simmons, 543 U.S. 551 (2005) ................................... 21 Shaw v. AutoZone, Inc., 180 F.3d 806 (7th Cir. 1999) .................... 16 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ......................... 3 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) .............. 3 Troupe v. May Dep't Stores Co., 20 F.3d 734 (7th Cir. 1994)................ 4 Trust Co. of Chicago v. Erie R. Co., 165 F.2d 806 (7th Cir. 1948) ........ 23 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) ......... 3 Valentine v. City of Chicago, 452 F.3d 670 (7th Cir. 2006) ............... 14 Wisconsin v. Williquette, 129 Wis.2d 239, 255, 385 N.W.2d 145 (Wis. 1986)..20 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997).................... 14, 18 Miscellaneous EEOC Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors § IV.C. (June 1999) (found at http://www.eeoc.gov/policy/docs/harassment.html) ..................... 4, 5 INTRODUCTION In its opening brief, the Commission argued that there was considerable evidence that V & J Foods should be held liable for the sexual harassment of a teenage hourly employee of a Burger King by the restaurant general manager. The Commission pointed to evidence that Tony Wilkins, the general manager, twice fired Samekiea Merriweather because she repeatedly rejected his sexual advances. Under the Supreme Court's decisions in Faragher and Ellerth, no defense should be available for this harassment. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). Even if Wilkins had not taken these tangible employment actions against Merriweather, the Commission argued, there was evidence that V & J maintained a woefully inadequate harassment policy and that Merriweather undertook reasonable steps to try to halt the harassment by complaining to numerous supervisors at the restaurant, by attempting to complain to corporate officials, and by contacting a corporate official after her second firing. The Commission argued that granting summary judgment to V & J on the Faragher/Ellerth affirmative defense therefore was in error. Finally, the Commission argued there was considerable evidence of unlawful retaliation, both for Merriweather's protected opposition and for the protests Merriweather's mother made on her behalf. V & J, in its brief in response, acknowledges that "Wilkins had been sexually harassing Merriweather," Def. Br. at 3, but puts forward several arguments why it nonetheless should not be liable for that harassment, or for the alleged retaliatory firing. Its arguments are unavailing. ARGUMENT I. There is considerable record evidence that Wilkins' sexual harassment of Merriweather culminated in a tangible employment action. The Supreme Court held in Faragher and Ellerth that if a supervisor's harassment of a subordinate culminates in a tangible employment action, the employer has no defense to liability for the harassment. Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 762-63. There is no dispute in this case that general manager Wilkins sexually harassed Merriweather, and that he twice fired her. The only dispute lies in V & J's explanation for the firings. The central question on appeal is whether the evidence would permit a jury to find that Wilkins fired Merriweather at least in part because she rejected his advances, and not for legitimate reasons, as V & J asserts. In the Commission's opening brief, it outlined the considerable evidence that Wilkins, increasingly frustrated by Merriweather's rejections, fired her because she resisted his advances. In response, V & J first argues that the Commission has not even established a prima facie case because it did not identify a similarly-situated employee treated better than Merriweather, Def. Br. at 8-10, and specifically that the Commission has improperly invoked Vernell Staten, the assistant manager, as such a similarly-situated individual. Def. Br. at 9. V & J is wrong in its factual assertion, and about what the law requires. First, in its opening brief the Commission pointed to evidence that Wilkins did not discharge Staten but only gave him written warnings for excessive absenteeism and excessive tardiness in the time period before Staten was promoted to assistant manager. EEOC Br. at 18 (citing A136-37). The Commission argued that, during this time period, he was similarly-situated to Merriweather. Second, and more importantly, V & J's insistence that the Commission failed to present evidence establishing the fourth element of a prima facie case demonstrates its failure to understand the purpose of the prima facie case. The purpose of the prima-facie-case requirement and the overall analytical framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), is simply to provide "‘a sensible, orderly way'" to present and evaluate evidence, see U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (citation omitted), and "is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). The purpose of the prima facie case is satisfied when a plaintiff puts forward evidence creating an inference of discrimination sufficient to trigger the requirement that the employer produce an explanation for its actions. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) ("the prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination"); see also Burdine, 450 U.S. at 253 (because establishing prima facie case shifts only burden of production, not proof, to employer, making out prima facie case is "not onerous"). Precisely what the prima facie evidence will be is not fixed, as V & J argues, and certainly does not always require comparative evidence, but "necessarily will vary" from case to case. McDonnell Douglas, 411 U.S. at 802 n.13; see also Swierkiewicz, 534 U.S. at 512 ("the precise requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic'") (citation omitted); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (McDonnell Douglas "did not purport to create an inflexible formulation"); Olson v. Northern FS, Inc., 387 F.3d 632, 635 (7th Cir. 2004) (prima facie case never intended to be rigid). As this Court has emphasized, a rigid reliance on the prima facie standards leads a court to "skirt[] the ultimate question-whether [a prohibited factor] was a motivating factor in the decision to fire" the employee. Olson, 387 F.3d at 635. This Court also has made clear that "[d]ifferent kinds and combinations of evidence can create a triable issue of intentional discrimination," and comparative treatment of others outside the protected group is only one of these types of evidence. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). In Troupe, this Court noted that an inference of discrimination can arise from evidence of suspicious timing, ambiguous statements, behavior or comments toward members of the protected group, "and other bits and pieces from which an inference of discriminatory intent might be drawn." Id. In this case, the Commission pointed to many "bits and pieces" that create a "convincing mosaic of discrimination." Id. at 737. V & J concedes that a supervisor harassed a subordinate because of her sex, and then fired her. This evidence alone creates enough of an inference of an unlawful tangible employment action that V & J should have to produce an explanation for the tangible action. See Llampallas v. Mini- Circuits, Lab, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998) ("the fact that the harasser was the decisionmaker for the tangible employment action gives rise to an inference that the harasser's discriminatory animus motivated that action."); EEOC Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors § IV.C. (June 1999) ("A strong inference of discrimination will arise whenever a harassing supervisor undertakes or has significant input into a tangible employment action affecting the victim.") (found at http://www.eeoc.gov/policy/docs/harassment.html); cf. Boumehdi v. Plastag Holdings, LLC, ___ F.3d ___, 2007 WL 1583980 at *7 (7th Cir. June 4, 2007) ("Since . . . [the] alleged harasser . . . was exclusively responsible for the . . . negative performance review, [the employer's] reliance on the review as a legitimate reason for the denied raise is misplaced."). The inference the supervisor's harassment has created does not, of course, end the inquiry, but it is more than sufficient to create a prima facie case. As V & J emphasizes, it is the Commission's position that "if the employer produces evidence of a non-discriminatory reason for the action, the [plaintiff] will have to prove that the asserted reason was a pretext designed to hide the true discriminatory motive." EEOC Guidance: Vicarious Employer Liability § IV.C. V & J has put forward facially legitimate reasons for Merriweather's two firings, but there is considerable evidence that these proffered reasons did not actually motivate Wilkins. As to Wilkins' first termination of Merriweather, V & J appears to concede that Merriweather's visit to her ailing grandmother could not, standing alone, justify her termination. Def. Br. at 15. V & J's argument instead hinges on what it terms the "undisputed" facts surrounding Merriweather's telephone call to Wilkins informing him of her wish to visit her grandmother in the hospital. Def. Br. at 14-15. According to V & J, it is "undisputed" that Wilkins did not fire Merriweather during the telephone conversation but that he instead instructed her to call him and return to work after her hospital visit. Only when Merriweather did not call Wilkins, V & J contends, did Wilkins fire her. V & J's version of the facts is wholly unsupported by the record. In contending that these facts are "undisputed," V & J cites primarily not to deposition testimony or other evidence, but instead to its own recitation of the facts that it provided to the district court. Def. Br. at 15 (citing A178). This document, generated by V & J, cannot support summary judgment on this issue for two reasons. First, in the response the Commission filed with the district court, the Commission did dispute V & J's version of the facts at some length. See R.52 (EEOC Response to Defendant's Proposed Findings of Fact) at ¶¶ 19-20, 183-85. Second, and more critically, the record itself is at odds with V & J's version of the facts. In Merriweather's deposition, she described her telephone call, in which she explained that "I need about an hour or so so I can go see her . . . this is important to me and I need to go see my grandmother." A88. She added that she had never called in before to say she could not come in, and that she had "‘always been on time.'" A88. Wilkins reacted negatively, and Merriweather stated that she knew she had been terminated at that time "because that's what he said." A89. Merriweather's account is consistent with the "Record of Employee Counseling" form Wilkins completed. On the form, Wilkins stated that Merriweather indicated to him that she needed to go to the hospital to visit her grandmother, and that he told her "that is not a[n] excuse for work that is a termination from work." A145. There is no mention on the form of any failure of Merriweather to call him after her visit as a ground for her termination, nor does the form state that Merriweather was supposed to come in after her visit to her grandmother. The only evidence in the record on this point is Merriweather's testimony that after Wilkins fired her, he telephoned Merriweather's home and left a message for her. A88-89, A196. Merriweather, who had already been told she was fired by Wilkins, A89, did not call Wilkins back. A196. The record evidence in this case indicates that V & J's proffered explanation for the first termination is false, and thus a jury could find it to be a pretext for discrimination. See generally Boumehdi, ___ F.3d ___, 2007 WL 1583980 at *7 (pretext established by identifying "weaknesses, implausibilities, inconsistencies, or contradictions in [the employer's proffered reasons"). Given this evidence of pretext and the additional evidence of an impermissible motive discussed in the Commission's opening brief (EEOC Br. at 27-29), summary judgment was improper. Regarding Merriweather's second termination, V & J argues it can terminate an employee for a no-call/no show even if "such a termination is medieval [or] high- handed." Def. Br. at 17. Whether or not V & J acted in a medieval or high-handed manner is beside the point. The point the Commission seeks to make is that a jury could find that Wilkins' motivation for this termination was unlawful. There was evidence that Wilkins had been growing increasingly hostile towards Merriweather and that, as he had done with another female employee who rejected his advances, he was treating Merriweather poorly "to make her want to quit." A44. There was evidence that Wilkins changed Merriweather's schedule at the last minute, and that he fired her when she could not work a later shift – even though Wilkins himself acknowledged that employees cannot be disciplined for missing a shift when a shift change occurs within 24 hours. A126. Merriweather even received permission not to come in from the manager on duty during the later shift. A167a. For Wilkins then to fire Merriweather, when the evidence indicates her absence broke no rules and in fact was authorized, is indicative that the stated reason for her termination is pretextual. See generally Boumehdi, ___ F.3d ___, 2007 WL 1583980 at *7. In its brief, V & J mischaracterizes the Commission's argument regarding the second termination. V & J contends that the Commission concocted an elaborate, speculative theory that Wilkins changed Merriweather's shift at the last minute because he knew Merriweather would not show up for it, and that he then would have an excuse to fire her. Def. Br. at 18. This is not the Commission's theory. What the evidence indicates is that Wilkins changed Merriweather's shift at the last minute because he heard about Merriweather's plans to tell the president of V & J Foods about Wilkins' treatment of her, and he wanted to prevent her from informing the president of his behavior. The Commission never argued that Wilkins had a scheme to do anything but protect himself from exposure of his bad behavior. When Wilkins learned that Merriweather could not work the later shift, he fired her, and the Commission presented evidence that Wilkins was motivated by anger over Merriweather's rejection of his sexual advances; by a wish to retaliate for her and her mother's complaints; or by some combination of the two. What did not motivate Wilkins, the evidence shows, was a legitimate reason to fire Merriweather. Summary judgment on the basis of the implausible absenteeism explanation Wilkins proffered therefore was in error. II. Summary judgment on the Faragher/Ellerth affirmative defense to supervisory harassment was improper because V & J maintained a woefully inadequate sexual harassment policy and because Merriweather made numerous and reasonable attempts to stop the harassment. A. V & J did not exercise reasonable care to prevent harassment. Faragher requires that an employer have an effective mechanism for reporting and resolving complaints of sexual harassment. Faragher, 524 U.S. at 806-07. The Commission, in its opening brief, put forward evidence that V & J's harassment policy was wholly unsuitable to the employment circumstances both in its substance and in the manner in which it was conveyed. The shortcomings of the policy were particularly troubling given that the Burger King that Wilkins managed was a satellite location, removed from the corporate offices, with employees who were young and inexperienced. V & J asserts that its policy was not flawed because it had "multiple reporting channels." Def. Br. at 23; see also Def. Br. at 31 (policy contained "two specific and exclusive channels through which to make complaints"). By its plain terms, however, the policy points employees in only one direction. The "Sexual Harassment Policy Statement" states that an employee "should report the alleged act [of harassment] immediately to his or her District Manager." A156. Questions may be directed toward the District Manager and unnamed personnel at Corporate Headquarters, A156, but the reporting requirement identifies only the "District Manager." A156. Elsewhere in the Orientation Handbook, V & J sets out a long list of personal conduct rules that, if violated, "may result in suspension or termination." A154. These rules include prohibitions on possession of firearms, gum chewing, and sexual harassment. A155. The paragraph on sexual harassment appears to add an enhanced requirement that an employee report harassment twice: "to the District Manager and Corporate Headquarters." A155 (emphasis added). It does not appear that the requirement of reporting the harassment to the District Manager can be bypassed. In any event, even if V & J meant to add a second reporting channel, that was so poorly conveyed to its employees that everyone at the 35th and Vleit location, from Wilkins on down the supervisory chain, thought all harassment complaints had to go to Wilkins himself, regardless of whether he was the harasser. A54-55, A129-31. V & J also does not directly contradict the Commission's contention that the employees believed that Wilkins was the "District Manager," and thus the person to whom all harassment complaints must be addressed. In its brief to this Court, V & J seems to suggest that Pete Breitigam was District Manager; V & J states that Merriweather "knew how to fulfill the requirements of the Policy . . . [because] she knew Pete Breitigam, Wilkins' boss." Def. Br. at 31. There is no evidence that Breitigam was "District Manager," and if V & J means to suggest as much, that suggestion has no support in the record. In addition, V & J's statement that Merriweather "knew" Breitigam (and so should have been able to call him up to complain) distorts the record. Merriweather stated that Breitigam conducted her extremely brief employee orientation. As Merriweather described it, it "was basically a rush-through job" during which Breitigam used the handbook only for new employees to sign the back page, which he tore out, and then "he sent us on our way." A69. The only other time Merriweather saw Breitigam was a single occasion when he came to the restaurant to talk to Wilkins. A187. V & J criticizes Merriweather for failing to speak with him, but there is no evidence that she had any opportunity to do so, nor is there evidence that Breitigam's single visit came at a time when the harassment had reached a point that Merriweather realized she needed to complain. V & J acknowledges that it did not post its policy or contact information, and that the policy lacked other elements that the Commission identified as critical, but V & J derides those missing elements as simply part of "EEOC's wishlist." Def. Br. at 23 n.12; see also id. ("prong one does not require that employers . . . post the harassment polic[y]") (emphasis added). It is true that the Supreme Court did not set out a checklist of required elements, but rather emphasized that what the employer must have is "a proven, effective mechanism for reporting and resolving complaints of sexual harassment"); Faragher, 524 U.S. at 807; see also id. at 808-09 (when individuals work in "far-flung locations," the employer must promulgate a harassment policy with a "sensible complaint procedure"). The many missing elements the Commission identified are not simply part of the Commission's wish list, but are elements that this Court, in the nine years since Faragher and Ellerth, has identified as critical to the maintenance of an effective anti-harassment policy. See, e.g., Gentry v. Export Packaging, 238 F.3d 842, 847 (7th Cir. 2001) (employer's policy ineffective where it only identified job title, and not name, of person to whom report should be made); Rhodes v. Illinois Dep't of Transp., 359 F.3d 498, 507 (7th Cir. 2004) (effective anti-harassment policy "identifies designated contact persons to accept complaints of . . . harassment" and employer displays "the names and phone numbers of these contact persons" in prominent location) (co-worker harassment case); Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003) (employer's "reasonable" policy elaborated how to complain if harasser was the employee's immediate supervisor); id. (employer had "proper system" for making harassment complaints where, inter alia, it required that every complaint be investigated); Doe v. Oberweis Dairy, 456 F.3d 704, 717-18 (7th Cir. 2006) (employer liable where shift supervisors were aware of another shift supervisor's harassment but policy did not require that they report harassment). Although V & J did not adopt a bypass option in case of harassment by a general manager, did not post a telephone number for a corporate office official anywhere at the restaurant, and did not provide the name of a person to contact, V & J argues that it had an "effective mechanism" for preventing harassment because the telephone number for the corporate office was printed on the cover of the orientation handbook. Def. Br. at 26. It is not clear why V & J thinks this fact is helpful since the company's policy indicates that harassment complaints should be lodged with Wilkins, not the corporate office. Further, even if reporting to the corporate office was clearly stated to be the required method of making complaints, this Court's decisions in Gentry and Rhodes undermine V & J's assertion that simply printing a telephone number on the cover of an orientation handbook, with no specific contact information, adequately discharges an employer's obligations under Faragher and Ellerth. See, e.g., Gentry, 238 F.3d at 847 (no meaningful harassment policy where management required that harassment be reported to "a Human Resources Representative" but "did not post whom they considered to be a Human Resources Representative"); Rhodes, 359 F.3d at 507 (effective policy identifies contact persons and prominently displays names and phone numbers of contact persons). Moreover, V & J does not explain how an employee can get the telephone number if, as here, the employee misplaces the handbook or does not remember that the handbook cover was the one place to find the corporate office's telephone number. Merriweather certainly attempted to get the number – she repeatedly asked assistant manager Staten for it. A112. Staten's inability to provide it is a further indication of the policy's shortcomings. V & J repeatedly refers to a "hotline" number "printed on each paycheck Merriweather received" as an indication of an effective mechanism for reporting harassment complaints. Def. Br. at 3; see also Def. Br. at 25 (number "clearly printed on each and every paycheck"). But there is no mention of the existence of this "hotline" number in the orientation handbook's discussion of sexual harassment complaint procedures, so it is not clear how the number on the paychecks is even relevant to an assessment of the adequacy of the harassment policy. Moreover, V & J did not submit the document with the "hotline" number into the record, but it is the Commission's understanding that the number was not printed on Merriweather's paychecks – which she presumably deposited shortly after receiving – but instead on the pay statements that accompanied the checks. A36. V & J contends that the "hotline" number was a way to contact V & J's corporate office. Def. Br. at 25. There is no evidence in the record to support this assertion. There was no evidence that this number was operational, and the fact that not a single employee at the restaurant – from Wilkins on down – knew of its existence suggests it was not. There also was no evidence that the number was directed to V & J's corporate office, rather than to the payroll data company that produced the pay statements. This hotline number is not, therefore, evidence that V & J maintained "a proven, effective mechanism for reporting and resolving complaints of sexual harassment." Faragher, 524 U.S. at 807. V & J's final argument that it exercised reasonable care to prevent and correct harassment is a "notice" argument: V & J contends it was "never on notice" of the harassment because Merriweather only complained to supervisors at the restaurant and not to the corporate office, and therefore that "none of Merriweather's . . . complaints . . . can be imputed to V & J." Def. Br. at 27-28 & n.17 (citing, inter alia, Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997)). V & J's "notice" argument is, to be blunt, the wrong argument. Young and its progeny are co-worker harassment cases in which the applicable legal standard for employer liability differs from the standard applied in supervisory harassment cases. In co-worker harassment cases, a "negligence standard . . . govern[s] the employer's liability . . . , which requires determining whether ‘the company was negligent either in discovering or remedying the harassment.'" Doe,456 F.3d at 717 (quoting Hall v. Bodine Elec. Co., 276 F.3d 345, 356 (7th Cir. 2002)); see also Loughman v. Malnati Org., 395 F.3d 404, 407 (7th Cir. 2005) (negligence standard governs in co-worker harassment cases "because employers do not entrust co-employees with significant authority with which they might harass a victim").<1> Cases in which a supervisor harasses a subordinate are different because, at a minimum, the supervisor has been "‘aided in accomplishing the tort [i.e., the harassment] by the existence of the agency relation," that is, the supervisor's status as the employer's agent." Doe, 456 F.3d at 717 (quoting Faragher, 524 U.S. at 801, 807). The Doe Court, after reviewing the principles in the Supreme Court cases and this Court's own prior decisions, concluded that those cases "implicitly impose on the employer a higher duty of care to protect its employees against those employees whom the employer has armed with authority, even if it is less than the authority that triggers the employer's strict liability." Doe, 456 F.3d at 717. V & J, of course, armed Wilkins with considerable authority – more than that of the shift supervisor in Doe. Wilkins was the most senior management official working at the restaurant. He possessed the power to hire, to fire, to discipline, and to set employees' schedules. A133-34, A137, A140. Wilkins was the employer in many fundamental respects. V & J's liability for Wilkins' non-tangible harassment thus does not turn on whether the employer had notice of the harassment, but rather on whether V & J can establish the affirmative defense of showing it exercised reasonable care to prevent harassment in a workplace in which the general manager operated with no oversight over inexperienced, teenage employees. Cf. Doe, 456 F.3d at 717 ("The fact that [the harasser] was often the only supervisor in the ice cream parlor and that the workers he was supervising were for the most part inexperienced teenagers working part time created a risk of harassment by him that required his employer to take greater care than if [the harasser] had been one of the teenage scoopers."). B. The evidence shows that Merriweather reasonably tried to avoid harm. In attempting to stop Wilkins from harassing her, Merriweather complained to Wilkins about his conduct, to the assistant manager, and to lower-level supervisors at the restaurant. A49a-51, 71, 77, 79-80, 83, 98. She tried to call the corporate office but could not get the number from the assistant manager when she asked him for it on two occasions. A112. She tried to complain to the president of V & J but was thwarted when Wilkins changed her schedule at the last minute. A92. She telephoned a corporate official – Mary Blake – at home to complain after Wilkins fired her, but Blake asked "how the hell" Merriweather got her number, told her she was "not the person" to talk to, and then hung up on Merriweather. A66. This evidence, the Commission argued in its opening brief, should preclude summary judgment on the second prong of the Faragher/Ellerth affirmative defense. V & J cites this Court's decision in Shaw v. AutoZone, Inc., 180 F.3d 806 (7th Cir. 1999), at some length in arguing that Merriweather unreasonably failed to avoid harm. See Def. Br. at 30-31. It is unclear why V & J invokes Shaw, for in that case the plaintiff "did not report [the harasser's] conduct to anyone." Shaw, 180 F.3d at 810. If she had, the Court noted, the harassment might have ceased for, unlike V & J, AutoZone maintained a policy that any employee "who receives a complaint or becomes aware of a sexual harassment situation . . . should report the allegation immediately." Id. at 809. Merriweather, by contrast, did report the harassment to numerous supervisors, but none took any steps to halt the harassment. V & J's principal contention is that V & J had a particular complaint policy under which "lower-level supervisors . . . had no responsibility or obligation to forward . . . complaints to the proper individuals." Def. Br. at 32. Because Merriweather only complained to lower-level supervisors, V & J argues, she did not comply with the policy and so unreasonably failed to avoid harm. V & J's argument is erroneous both as a factual matter and as a matter of law. First, as outlined above, Merriweather did not only complain to lower-level supervisors. She also complained to Blake and to Wilkins. V & J never addresses the complaint to Blake, and it is dismissive that her complaint to Wilkins had any significance.<2> But the policy, by its plain terms, required that complaints be made to the District Manager, and everyone from Wilkins on down understood that he was the one person to whom all harassment complaints had to be made. Merriweather thus complied with V & J's policy. In any event, strict adherence to an employer's particular policy is not what the law requires. This Court so held in Cerros v. Steel Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005), a case in which the employer had argued that the "plaintiff's failure to follow the reporting mechanisms outlined in an employer's harassment policy is a sufficient basis in itself for finding no liability." The Cerros Court, invoking Faragher and Ellerth, rejected the employer's contention and held that "compliance with an employer's designated complaint procedure is not the sole means by which an employee can fulfill her . . . ‘duty to avoid or mitigate harm.'" Id. (quoting Faragher, 524 U.S. at 806). Merriweather, an inexperienced 16-year old, made numerous efforts to stop Wilkins and hence to avoid harm; V & J thus has not established its affirmative defense as a matter of law. In arguing that Merriweather's complaints to Staten, McBride, and other supervisors were insufficient under Faragher and Ellerth, V & J reiterates the "notice" argument properly applied in co-worker harassment cases, not supervisory harassment cases. Def. Br. at 33. Co-worker harassment cases do not govern in supervisory harassment cases, largely because what steps would be reasonable if Merriweather were harassed by another hourly employee at the restaurant differ from what steps would be reasonable if she were harassed by the restaurant's general manager. Regardless, even under the co-worker cases, V & J should properly be held liable. V & J's official reporting channel seemed to begin and end with Wilkins. Under the circumstances, Merriweather could have believed that Staten – who frequently ran the restaurant – "could reasonably be expected to refer the complaint up the ladder to the employee authorized to act on it." Young, 123 F.3d at 675. This Court's decision in Loughman, 395 F.3d 404, a co-worker case, is somewhat analogous. Loughman complained about co-worker harassment at a chain pizza restaurant to two of the restaurants managers but did not report the incidents to "upper management," in accordance with the employer's sexual harassment policy. Loughman, 395 F.3d at 408. This Court rejected the employer's argument that Loughman should have reported the harassment to more senior managers, holding instead that "a reasonable jury could find that Loughman took adequate steps by reporting the incidents to . . . one of her supervisors." Id. A reasonable jury could make a similar finding in this case. Finally, V & J chastises Merriweather for what she did not do: she did not pigeonhole Breitigam during his one visit to the restaurant; she did not leave a note with a co-worker to pass on to the company president during her visit; she allegedly did not look up the number for Burger King's corporate offices in the telephone directory.<3> Def. Br. at 31-35. What Merriweather did do, however, was complain to supervisors at every level of the restaurant, and attempt to complain to higher level officials. Her actions should preclude an award of summary judgment on the affirmative defense. III. There is record evidence that Wilkins unlawfully retaliated against Merriweather by firing her. A. The complaints of Merriweather's mother constitute protected activity. V & J puts forward two arguments why, in its view, Merriweather should not be protected from retaliation for the complaints of her mother. First, V & J argues that Title VII requires that individuals "personally engage in protected activity before they are entitled to protection against retaliation." Def. Br. at 38. V & J's argument for a narrow reading of the anti-retaliation provision has already been considered and rejected by this Court in McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996), a case V & J does not discuss in its brief. In McDonnell, the plaintiff did not "personally engage in protected activity," as V & J puts it. Rather, the plaintiff's claim was that he suffered retaliation because he failed to prevent another employee from engaging in protected activity; that "third party" had filed a discrimination complaint. Id. at 262. This Court recognized that the case was one of "genuine retaliation," and that Title VII could properly be interpreted to encompass such acts of retaliation. Id. Second, V & J argues that EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993) (cited with favor in McDonnell, 84 F.3d at 262, and Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000)), is inapposite because "Merriweather's mother was not authorized or engaged by Merriweather to act on her behalf." Def. Br. at 36. V & J's argument on this point defies both law and logic. It is well-recognized in the courts that a parent complaining about discrimination is acting on the child's behalf. See, e.g., Baird v. Rose, 192 F.3d 462, 471 n.10 (4th Cir. 1999) (ADA retaliation claim may be pursued where it was "clear that Baird's mother was acting on Baird's behalf in complaining [about perceived ADA violations]"). Moreover, even if Merriweather – a teenager – objected to her mother's actions, that does not alter the fact that Merriweather's mother was acting on her behalf, for under Wisconsin law a parent is obliged to take steps necessary to protect his or her child. See, e.g., Wisconsin v. Williquette, 129 Wis.2d 239, 255, 385 N.W.2d 145 (Wis. 1986) ("The relationship between a parent and child exemplifies a special relationship where the duty to protect is imposed."); Cole v. Sears, Roebuck & Co., 47 Wis.2d 629, 634, 177 N.W.2d 866 (Wis. 1970) ("‘It is the right and duty of parents under the law of nature as well as the common law and the statutes of many states to protect their children . . . [and an] omission to do this is a public wrong'"). The Commission submits that a mother complaining about a 35-year old man's sexual harassment of her 16-year old daughter is acting on her daughter's behalf, regardless of whether her 16-year old daughter "authorized" her mother's complaints or was mortified by them. Cf. Roper v. Simmons, 543 U.S. 551, 569 (2005) ("Even the normal 16-year-old customarily lacks the maturity of an adult.") (citation omitted). B. There is evidence to support a finding that Merriweather's termination was caused in part by her mother's and her own complaints about the harassment. V & J's brief does not address the question of whether the complaints of Merriweather's mother caused Wilkins, at least in part, to fire Merriweather. V & J's silence on this point presumably is due to Wilkins' candor about the role those complaints played in his decision to fire her. As he put it to Merriweather, "‘if you [had] acted like a lady and finished handling business like you [had] been doing, you'd still have a job. But instead you want to put your mother in your business and that's why you don't have [a job].'" A104. There is little ambiguity in this statement, though even ambiguous statements may support an inference of retaliatory motive. See Boumehdi, ___ F.3d ___, 2007 WL 1583980 at *8. V & J does argue there is no causal connection between Merriweather's complaints and anticipated complaint, and her firing. V & J argues her firing was a legitimate business decision based on Merriweather's failure to report to work for her shift. As discussed in the tangible employment action section above, there was evidence that the absenteeism explanation was wholly implausible and hence indicative of pretext. Additionally, because Merriweather's discharge came so soon after her attempt to detail Wilkins' harassment to the company president, the timing of her discharge is further evidence of a retaliatory motive. See Boumehdi, ___ F.3d ___, 2007 WL 1583980 at *8 (evidence of retaliation may include "evidence of suspicious timing"). V & J argues that the Commission must show that Wilkins "actually knew" of Merriweather's anticipated complaints by the time he fired her. Def. Br. at 19. The Commission agrees that it must produce evidence from which a jury could infer that Wilkins was aware of Merriweather's opposition. In its opening brief, the Commission pointed to evidence that Merriweather told McBride that when Valerie Daniels-Carter came to the restaurant, she was going to tell her everything about Wilkins' harassment. It pointed to evidence that McBride was – as Wilkins acknowledged – his "eyes and ears on the floor." A135. V & J attempts to minimize the significance of the "eyes and ears" evidence, by pointing out that "Wilkins' assertion that McBride told him everything cannot be conclusive of whether McBride actually did tell him everything." Def. Br. at 19. Again, the Commission agrees that it is not conclusive, but on summary judgment it is reasonable to infer, especially from Wilkins' subsequent actions, that McBride did tell him of Merriweather's intent to complain. V & J's citation (Def. Br. at 19) to Martin v. Shawano-Gresham School District, 295 F.3d 701, 713 (7th Cir. 2002), is unavailing – there the Court refused to allow testimony as to a party's understanding of a fact where the party had no personal knowledge of the fact. Here, by contrast, Wilkins was not testifying as to the truth of what McBride told him (about which he would have no personal knowledge), but simply as to the fact that he considered her his eyes and ears on the floor. Finally, the Commission pointed to evidence that Wilkins took down the work schedule that assigned Merriweather to work during Daniels-Carter's visit, threw it in the trash, and then denied having done so. A reasonable jury could infer from this evidence that Wilkins knew of Merriweather's anticipated complaint and, indeed, tried to stop her from making it. V & J labels the Commission's argument mere "speculation" that cannot defeat summary judgment. In Trust Co. of Chicago v. Erie R. Co., 165 F.2d 806, 809 (7th Cir. 1948), this Court explained the difference between impermissible "speculation" and permissible "reasonable inference" – reasonable inferences are drawn from evidence, while speculation is not. Because the Commission has grounded its argument in the facts in the record, the "speculation" label is inapposite. A reasonable jury could infer that Wilkins knew Merriweather was about to complain, that he changed her work schedule to ensure she could not speak to Daniels-Carter, and that he fired her in retaliation for her attempts to complain. CONCLUSION This Court should reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION June 14, 2007 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 6,704 words. ____________________________ JENNIFER S. GOLDSTEIN CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this day to the following: Andre E. Townsel 10936 North Port Washington Rd. Mequon, WI 53092 Thomas P. Krukowski Krukowski & Costello, S.C. 7111 West Edgerton Avenue Milwaukee, WI 53220 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 June 14, 2007 *********************************************************************** <> <1> Virtually all the cases on which V & J relies for its “notice” argument are co-worker harassment cases. See Def. Br. at 27- & n.17 (citing Young, 123 F.3d 672 (co-worker case); Hall, 276 F.3d at 356 (co-worker case); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1035 (7th Cir. 1998) (co-worker case); Bombaci v. Journal Cmty. Publ’g Group, Inc., 482 F.3d 979, 984-84 (7th Cir. 2007) (co-worker case); Valentine v. City of Chicago, 452 F.3d 670 (7th Cir. 2006) (co-worker case); Cerros v. Steel Techs., Inc., 398 F.3d 944, 951-52 (7th Cir. 2005) (co-worker and supervisor case; liability differs according to harasser’s status)). <2> V & J argues that a company cannot be deemed to have “notice” by virtue of complaints to a harassing supervisor. Def. Br. at 32 n.21. As discussed above, notice is not the issue in supervisory harassment cases. Notice to upper management might be an issue when assessing the propriety of punitive damages, as it was in the case upon which V & J relies, Cooke v. Stefani Management Services, Inc., 250 F.3d 564, 568-70 (7th Cir. 2001). Punitive damages are not an issue in this appeal, however, and so Cooke’s analysis of the punitive damage standard accordingly is not relevant here. <3> The record does not reflect whether Merriweather attempted to use the telephone directory to look up the corporate office’s number, or how the corporate office is listed in the directory. What the record does show is that several company documents Merriweather received – from her performance award to the Record of Employee Counseling – are from “Burger King.” There is no evidence about how many Burger King listings are in the directory, or whether the corporate office for her Burger King restaurant was identified in the directory.