Vajdl v. Mesabi Academy of Kidspeace, 10th Cir. Amicus Brief Filed September 11, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-2482 ______________________ LISA VAJDL, Plaintiff-Appellant, v. MESABI ACADEMY OF KIDSPEACE, INC., KIDSPEACE CORPORPORATION, and MICHAEL MUEHLBERG, Defendants-Appellees. _______________________________________________ On Appeal from the United States District Court for the District of Minnesota _____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ______________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street N.W., 7th Floor Washington, DC 20507 202-663-4721 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 3 2. Statement of Facts 4 3. District Court's Decision 10 STANDARD OF REVIEW 15 ARGUMENT I. THE DISTRICT COURT ANALYZED PLAINTIFF'S RETALIATION CLAIM UNDER AN IMPROPER LEGAL STANDARD. 15 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF'S SEXUAL HARASSMENT CLAIM. 20 a. Hostile Work Environment 21 b. Notice 26 CONCLUSION 31 CERTIFICATE OF COMPLIANCE 32 ADDENDUM District Court's Decision CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bales v. Wal-Mart Stores, 143 F.3d 1103 (8th Cir. 1998) 26 Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) 1-2, 15-20 Burns v. McGregor Electric Industries, 955 F.2d 559 (8th Cir.1992) .............................23-24 Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999) 25 Crist v. Focus Homes, 122 F.3d 1107 (8th Cir. 1997) 21-22, 25, 26 Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004) 2, 24 Dhyne v. Meiners Thriftway, 184 F.3d 983 (8th Cir. 1999) 30 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) 27 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 29 Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988) 27 Harris v. Forklift Systems, 510 U.S. 17 (1993) 2, 21 Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005) 22 Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997) 23-24, 25 Henthorn v. Capitol Communications, 359 F.3d 1021 (8th Cir. 2004) 25-26 Hirase-Doi v. U.S. West Communications, 61 F.3d 777 (10th Cir. 1995) 29 Hostetler v. Quality Dining, 218 F.3d 798 (7th Cir. 2000) 22 Howard v. Burns Brothers, 149 F.3d 835 (8th Cir. 1998) 2, 21-23 Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir. 2004) 13, 30-31 Kopp v. Samaritan Health Systems, 13 F.3d 264 (8th Cir. 1994) 15 Lockard v. Pizza Hut, 162 F.3d 1062 (10th Cir. 1998) 27 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) 21 Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) 18, 22, 23 Sims v. Health Midwest Physician Services Corp., 196 F.3d 915 (8th Cir. 1999) 3, 27-31 Spears v. Missouri Department of Corrections, 210 F.3d 850 (8th Cir. 2000) 20 Turner v. Gonzales, 421 F.3d 688 (8th Cir. 2005) 20 Varner v. National Super Markets, 94 F.3d 1209 (8th Cir. 1996) 26 Williamson v. City of Houston, 148 F.3d 462 (5th Cir. 1998) 30 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997)................................27 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ..........................passim 42 U.S.C. § 2000e-2 16 42 U.S.C. §§ 2000e-3....................................2,.15-20 REGULATIONS 29 C.F.R. § 1604.11(f) 3, 28-29 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-2482 ______________________ LISA VAJDL, Plaintiff-Appellant, v. MESABI ACADEMY OF KIDSPEACE, INC., et al., Defendants-Appellees. _______________________________________________ On Appeal from the United States District Court for the District of Minnesota _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL _______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and other federal employment discrimination statutes. This case presents important questions concerning the scope of Title VII's protections against sexual harassment and retaliation. Specifically, Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), recently clarified the standard for deciding whether an individual has suffered an "adverse action" within the meaning of Title VII's anti- retaliation provision; the standard the district court applied in this case is inconsistent with Burlington Northern. The district court also mistakenly conflated the standard for determining whether an employer has notice of coworker harassment with this Court's definition of "supervisor" for purposes of imposing vicarious liability where the harasser is a supervisor. If upheld by this Court, these rulings could substantially affect the Commission's enforcement of Title VII. We therefore offer our views to the Court. STATEMENT OF THE ISSUES 1. Whether the district court erred in rejecting plaintiff's retaliation claim on the ground that the adverse actions she identified had no "tangible effect" on her employment. 42 U.S.C. § 2000e-3; Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). 2. Whether the district court erred in holding, without regard to the social context of plaintiff's employment, that the harassment she complained of, though "incessant" and including both comments and touching, was not extreme enough to be actionable. Harris v. Forklift Sys., 510 U.S. 17 (1993); Howard v. Burns Brothers, 149 F.3d 835 (8th Cir. 1998); Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004). 3. Whether the district court erred in holding that an employer cannot be charged with notice of coworker harassment until the conduct comes to the attention of a company official with authority to hire and fire the plaintiff. Sims v. Health Midwest Physician Servs. Corp., 196 F.3d 915 (8th Cir. 1999); 29 C.F.R. § 1604.11(f). STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment of the district court dismissing this action. Plaintiff brought suit under Title VII and state law in state court, alleging that she was subjected to sexual harassment by three coworkers and was retaliated against when she complained about the harassment. After defendants removed the case to federal court, the district court granted their motions for summary judgment, holding inter alia that the harassment was not extreme enough to be actionable and that plaintiff failed to show that the alleged adverse actions had any "tangible effect" on her employment. R54 ("Order"). Judgment for defendants was entered the same day. R55. Plaintiff filed a timely appeal on June 2, 2006. R.56. On August 22, 2006, this Court granted EEOC's motion for leave to file an amicus brief by September 11, 2006. 2. Statement of Facts Mesabi Academy of KidsPeace is a privately-owned corrections facility for male youths who have been convicted of violent offenses. In August 2003, Mesabi hired Lisa Vajdl, a recent college graduate, as a temporary youth care worker. Order at 2. She was assigned first to the Endeavor unit and then to the Discovery unit, both of which housed violent sex offenders aged 21 and under. Order at 3. Her duties included maintaining the safety and security of the facility; supervising, counseling and interacting with inmates; and escorting inmates to activities. Id. at 2. It is undisputed that the Endeavor and Discovery units were hazardous places to work; soon after she was hired, Vajdl learned that her predecessor had been raped and choked by an inmate. Joint Appendix, volume 1 ("1JA")344. Inmates ogled workers' bodies and stated, verbally and/or in writing, that they wanted to rape, attack or even kill workers. Vajdl alleges, for example, that one inmate stalked her and, among other things, admitted dropping his pants while staring at her; another inmate threatened to kill her; and a third inmate gave her a letter stating, inter alia, that if they could not be together, he would take her to a place where there would be no pain. Order at 4-7. Pursuant to her training, Vajdl used her judgment to sanction inmates for inappropriate behavior, with or without assistance from other employees; in some cases she also complained to her direct supervisor, Paul Jacobson. She turned the inmate's letter over to an investigator. Id. Vajdl testified that throughout her tenure at Mesabi she was subjected to unwelcome attention from three other youth care workers, John Gustafson, Michael Muehlberg, and Joel Lawson, all of whom had "propensities" to harass female employees. See Order at 22, n.3. During her two-week orientation, Vajdl worked three shifts in the Endeavor unit with Gustafson who, she alleges, repeatedly made "inappropriate" comments such as "why don't you bend over so we can send [a particular inmate] into crisis." Although she complained to her training supervisor about Gustafson's lack of "professionalism," he continued to make similar remarks -- for example, that he would like to lick her from head to toe -- when they met during shift changes or in the cafeteria. Order at 7-8. After her orientation, Vajdl was assigned to the Discovery unit. There, she testified, she was continuously harassed by Muehlberg. Among other things, Muehlberg "repeatedly" told her that he liked to look at her "rear end and chest" and that various inmates liked looking at her; he would also stare at her chest and "gently" touch her fingers. At the pool, he once brushed water off her pant-leg even after she asked him not to touch her. Another time, he blew softly on her bangs. He also commented on her clothing, told her that she might be the right woman for him, asked for a ride in her new car, suggested that he accompany her for a drink or to Wal-Mart after work, once came up behind her and whispered that she looked nice with her hair down, and made sexual comments to her about various inmates. Finally, he ferreted out her home phone number and called her several times at home. When she rejected his advances, he became hostile and, among other things, criticized her work performance. Order at 8-10. The district court described the comments as "incessant" and the conduct as "persistent, occurring on a nearly daily basis." Id. at 23-24. Around the end of November, Vajdl complained about Muehlberg to Patrick Lenzen, one of the Discovery unit's "shift managers." Shift managers were responsible for making sure things got done on the unit and reporting back to Jacobson. 1JA63 (Borowicz); 1JA268-69 (Lenzen, stating that shift managers "could suggest to [youth care workers] that they should improve on a certain behavior or this should be done in a certain way"); cf. 1JA270 (Lenzen, stating that he reported to Jacobson that he heard Muehlberg asking another employee whether Vajdl was single). Due to Muehlberg's previous conduct, Mesabi knew that he "had a tendency to harass women." Order at 25. Moreover, the company's harassment policy states that persons who believe that they have been victims of harassment or have witnessed any such conduct should discuss their concerns with a supervisor. 2JA596 (harassment policy, D). Nevertheless, Vajdl testified that Lenzen advised her not to report the conduct to Jacobson because it was "not job-related." Order at 9-10. She followed this advice. Soon thereafter, Vajdl testified, Lawson also began harassing her. Their first encounter was when he blocked her passage in a hallway and moved only after she told him to get out of the way. He then began making inquiries about her personal life and told Lenzen that he liked her aggressiveness; Lenzen told Vajdl that she had a "new superstalker" and should be "flattered." Lawson would also kick Vajdl's ankle "flirtatiously" and make remarks such as that he was "after her." Once, he asked her to meet him outside so he could tell her what he wanted from her -- when she complained to Lenzen, he laughed and suggested that she see what Lawson wanted. Finally, at the end of January, Lawson left Vajdl a note "for [her] eyes only," inviting her to call him after 11:00 some night so that she could "verbally abuse" him and he could "initiate" her into the "chocolate milk club"; he finished with a drawing of a winking face and signed the note "The Gadfly." Order at 12-13; 1JA260-61 (note). Vajdl did not immediately complain to Jacobson about her coworkers' harassment. As noted above, Lenzen had advised her not to mention her concerns about Muehlberg to Jacobson. Order at 9-10. Furthermore, in late October or early November, when she showed Jacobson the threatening letter from the inmate about going to a place with no pain, he responded by asking why she did not find the letter "flattering." Id. at 6. On January 7, 2004, Jacobson overheard a coworker tease Vajdl about sitting next to Muehlberg during a staff meeting. Order at 10. Mesabi was aware that Muehlberg had been accused of harassing other women (id. at 25); indeed, in January 2003, he had received a "final written warning" (which he refused to sign) for a harassing incident. 1JA316-20 (warning). Nevertheless, Jacobson did not ask Vajdl about this comment. On Friday, January 16, Jacobson told Vajdl that, because of her performance, she would be made a permanent full-time employee the following Monday, January 19. Id. at 13-14. On January 18, shift manager Phil Borowicz e-mailed Jacobson stating that Vajdl and Muehlberg should not work together because they were avoiding each other and he was asking about her personal life. Id. at 10. Jacobson then forwarded the e-mail to the program director, Lance Edminster, with a note stating, "Just when I thought all was well . . . We should talk." Jacobson also talked to several other employees. Id.; 3JA883 (email), 3JA886 (memo). He then recommended that Vajdl be fired, purportedly because of performance issues he had just become aware of. Order at 14; 3JA886 (memo). Jacobson spoke to Vajdl about Muehlberg on January 21, three days after receiving Borowicz's e-mail. Order at 10. She told him about Muehlberg's touching, staring, and comments, stressing that it made her uneasy to work around him. She followed up with an e-mail expressing surprise that Jacobson had broached the subject and providing additional details. Id. at 10-11; 3JA884; 3JA885. On January 22, Vajdl received a written warning based on the "newly discovered" performance concerns and, as a result, was prohibited from sanctioning any inmate without first obtaining permission from the shift manager. 3JA887 (warning). Jacobson told her she was lucky to have a job, but, contrary to his recommendation, she was not fired. Order at 14; 1JA383. On January 27, Vajdl met with Mesabi's HR manager, Aimee Foszpanczyk, to discuss Muehlberg. At the meeting, Vajdl stated that she believed she had been disciplined in retaliation for complaining about the harassment. She also stated that she had not reported the conduct earlier on the advice of her shift manager, Pat Lenzen. Order at 11. Shortly thereafter, Vajdl received Lawson's chocolate milk note. Disturbed, she passed the note along to Foszpanczyk and was permitted to go home early. That evening, Edminster called her at home and, acknowledging that the note was "bad timing," stated that he had spoken to Lawson who explained that it was all a misunderstanding. Order at 12-13. Lawson was not disciplined. 1JA95; 1JA135. After her January 21 talk with Jacobson, Vajdl testified, she worked two more shifts with Muehlberg. 1JA373; but see Order at 11 (did not work together after talk). On February 5, 2004, Muehlberg received another "final written warning," which he refused to sign, for "conduct consistent with sexual harassment" (1JA323-24)(warning); he was also transferred to the Endeavor unit and warned not to retaliate against Vajdl. Order at 11. Despite the warning, Muehlberg held an "informal, off- site meeting" with Gustafson, Borowicz and another employee to discuss Vajdl's allegations, which he denied, claiming instead that she was harassing him. Order at 15; 1JA373. Vajdl was told of this meeting soon thereafter. On February 11, she resigned. Order at 15; 1JA383 (noting that physician she consulted advised the resignation). 3. District Court's Decision The district court granted summary judgment to defendants. Initially, the court decided that, in determining whether Vajdl had been subjected to a hostile work environment, incidents involving inmates should be separated from those involving coworkers since, in the court's view, the allegations were "premised on distinct theories of employer liability." Order at 17 n.2. Regarding the inmates' conduct, the court noted that it was "undisputably offensive and threatening in nature." Id. at 20. The court concluded, however, that summary judgment was proper on any inmate-related claim, given "the type of [inmate] misconduct," "Vajdl's personal responses to those incidents, the nature of her employment as a youth care worker in a sex offender unit, and Mesabi Academy's responses to the misconduct that Vajdl reported." Id. at 22. According to the court, Vajdl did not identify any "specific flaws" in the system or additional preventative measures that Mesabi should have taken. Id. at 20-22. Moreover, she reported only some of the incidents, handling others herself, and, "although Jacobson's comment [that she should be flattered at the inmate's letter] may have been inappropriate," the matter was properly handled by other employees. Id. at 21. Turning to the coworker harassment, the court stated that the "threshold of actionable harm is high": the "harassment must be so intimidating, offensive or hostile that it poisoned the work environment." Order at 18. According to the court, "extreme" conduct is required to "ensure that Title VII is not used as a mechanism to impose a general code of workplace civility". Id. ("simple teasing and offhand comments" insufficient). In the court's view, although Gustafson, Lawson and Muehlberg "undeniably engaged in juvenile and inappropriate conduct," it was "simply not severe or pervasive enough to be actionable under Title VII." Id. at 22-23. In particular, none of the comments was "physically threatening in nature." Id. at 23. Gustafson's comments were "offensive," but Vajdl did not have to work with him after the first two weeks. Id. Lawson's conduct was also "infrequent," and, although his note was "sophomoric," it did not create a "pervasive environment of hostility" even coupled with his other behavior. Id. As for Muehlberg, his comments and conduct "were the most persistent, occurring on a nearly daily basis," and his comments were "incessant and immature." Id. at 23-24. Nevertheless, this behavior was "not lewd or physically threatening" and did not "surpass the high level of actionable harassment that the Eighth Circuit has established." Id.<1> In any event, the court continued, Vajdl did not show that Mesabi failed to take "appropriate and reasonable remedial action" once it had notice of the harassment. Order at 24. The court noted that an employer is "deemed to have notice when the employee informs his or her supervisor or management personnel," and, for purposes of imposing vicarious liability on an employer, a supervisor "is someone who has the power 'to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties.'" Id. at 19 (citing Joens v. John Morrell & Co., 354 F.3d 938, 940-41 (8th Cir. 2004). Accordingly, the court opined, since Jacobson was Vajdl's "supervisor," Mesabi could not be charged with notice until after Jacobson "took the initiative" to make inquiries in response to Borowicz's e-mail. Order at 25. The court "decline[d] to impose liability" based upon Mesabi's "failure to respond appropriately to employee misconduct that Vajdl never reported" to Jacobson. Id. The court acknowledged evidence that all three men had reportedly harassed female employees besides Vajdl. In the court's view, however, this placed the company on notice that these individuals had "propensities to harass female employees" (id. at 22 n.3), but not that they were harassing Vajdl. See id. at 25 (discussing Muehlberg, notice of his "tendency to harass women" but not Vajdl specifically). The court similarly concluded that Vajdl's complaints to Lenzen, and Lenzen's warning not to report anything to Jacobson, did not put Mesabi on notice of the harassment. The court reasoned that Lenzen had no "authority to take employment action" against Vajdl and, so, was not her "supervisor." Id. at 25 n.4. As for remedial action, the court found it adequate. Although Gustafson and Lawson were not disciplined, the court noted that Mesabi "promptly" issued Muehlberg a "final written warning" and transferred him to another unit. The court reasoned that, although Vajdl argued that this discipline was insufficient in light of Muehlberg's history of receiving other similar warnings, she did not identify any harassing conduct in the brief period between when she talked to Jacobson and when she left her employment. Order at 25-26. Turning to the retaliation, the district court held that Vajdl could not state a claim because the adverse actions she complained of -- the disciplinary warning, loss of the ability to sanction inmates herself without first obtaining permission from a shift manager, and Jacobson's recommendation that she be fired -- had no "tangible effect" on her employment. Order at 27 (no loss of pay or benefits or "direct implications on her ability to advance in employment"). Since Vajdl acknowledged that youth care workers often consulted one another about appropriate sanctions, the court concluded the requirement that she obtain permission before imposing discipline was a mere "inconvenience" rather than a "material change in terms or conditions of her employment." Id. at 28. STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo. Summary judgment is proper if, viewing the evidence and drawing all reasonable inferences in favor of the nonmovant, no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Kopp v. Samaritan Health Sys., 13 F.3d 264, 268-69 (8th Cir. 1994. ARGUMENT I. THE DISTRICT COURT ANALYZED PLAINTIFF'S RETALIATION CLAIM UNDER AN IMPROPER LEGAL STANDARD. The district court erred in granting summary judgment on Vajdl's retaliation claim. The court reasoned that the adverse actions she complained of -- Jacobson's recommendation that she be terminated and the resulting written warning which required that she obtain permission from a shift manager before sanctioning an inmate -- were not actionable because they had no "tangible effect" on her employment. As the Supreme Court recently clarified, however, that is not the standard. Rather, a plaintiff must show only that the conduct "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2415 (2006). Applying that standard, a jury could easily find that the complained-of conduct here was actionable. Section 704 of Title VII prohibits employers from "discriminat[ing] against" an employee or applicant because that individual "opposed any practice" made unlawful by the statute. 42 U.S.C. § 2000e-3. In Burlington Northern, the Supreme Court granted certiorari to resolve two questions that had divided the circuits concerning the protection afforded by this provision: (1) whether actionable retaliation is limited to "activity that affects the terms and conditions of employment"; and (2) how harmful the adverse actions must be to fall within its scope. 126 S. Ct. at 2408. In answering these questions, the Court considered the language and purpose of section 704. Regarding the first question, the Court held that "the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace." Id. at 2409; see also id. at 2414 (rejecting standards limiting § 704's protection to same conduct prohibited by anti-discrimination provision and to "ultimate employment decisions"). The Court noted that, unlike the substantive discrimination provision (42 U.S.C.§ 2000e-2), the language of the anti-retaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment." 126 S. Ct. at 2412-13. The Court concluded that this difference was intentional. Id. at 2412. The Court reasoned that section 704 is designed to prevent employers "from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees" -- a workplace free from discrimination based, for example, on sex. Limiting protection "to employment-related actions would not deter the many forms that effective retaliation can take." Id. Turning to the second question, the Court held that section 704 "covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant" which, in this context, "means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id.. at 2409; see also id. at 2415 ("might well dissuade"). The Court noted that "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses." Id. at 2414; see id. at 2412 ("primary purpose" is "[m]aintaining unfettered access to statutory remedial mechanisms") (citation omitted). "Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure that cooperation upon which accomplishment of the Act's primary objective depends." Id. at 2414. Expounding on the standard, the Court explained that the adversity must be "material" because "petty slights" are unlikely to deter victims of discrimination from complaining to their employers, the courts or the EEOC. 126 S. Ct at 2415. In addition, although the standard is "objective," it is phrased in "general terms" because the "significance of any given act will often depend on the particular consequences. Context matters." Id. (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)). An "act that would be immaterial in some situations is material in others." Id. at 2416 (citation omitted). Applying that standard to the facts in Burlington Northern, the Supreme Court held that transferring plaintiff to a harder, dirtier job within the same pay grade and job category and suspending her without pay for 37 days even though the lost pay was later reimbursed were both actionable adverse actions. Id. at 2416-17. Other examples cited by the Court include the FBI's refusing to investigate "death threats" against an agent, filing false criminal charges against a former employee (id. at 2412), and changing the schedule of a mother with school-age children (id. at 2415). The adverse actions identified by Vajdl are analogous to those identified in Burlington Northern and, so, could be found to be actionable. She argued that Mesabi retaliated against her, inter alia, by recommending that she be terminated and issuing the disciplinary warning that required her to obtain permission from a shift manager before sanctioning any inmates. In our view, a reasonable jury could find that, considering the circumstances of Vajdl's employment, depriving Vajdl of the authority to respond to inappropriate inmate conduct by issuing an immediate sanction was more than a mere "inconvenience" (Order at 28) -- it undermined her authority with the inmates and, so, could place her in physical danger. Vajdl worked with violent sex offenders, some of whom had harassed and even threatened her. Order at 4-7. Moreover, although he had been transferred to another unit, Muehlberg was attempting to turn other coworkers and a shift manager against her. Order at 15; 1JA373. A jury could find that, in that context, the prospect of losing the authority to discipline inmates on the spot, like the "death threats" or schedule change in Burlington Northern, could well dissuade a reasonable worker from making or supporting a charge of discrimination. Similarly, a reasonable worker could be dissuaded from complaining if she knew that, as a result, her supervisor would recommend her termination. Like the reimbursed lost pay, even though the recommendation was not followed, it led to a written warning that a reasonable worker could believe would impact her future opportunities with the employer. Since the decision here pre-dated Burlington Northern, the district court analyzed Vajdl's claim under this Court's then- existing standard for adverse action. According to the court, to be actionable, "an employer's action must result in a material change in employment," i.e., it must have a "tangible effect upon employment." See Order at 26-28 (citing, e.g., Spears v. Missouri Dep't of Corrections, 210 F.3d 850, 853 (8th Cir. 2000; Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005)). In the court's view, since Mesabi did not actually fire Vajdl, since she lost no pay or promotion opportunities, and since she could, with permission, sanction inmates, the complained-of conduct was not "material" but merely an "inconvenience." Order at 27-28. In light of Burlington Northern, this ruling cannot stand. As noted above, under Burlington Northern, retaliatory conduct need not involve "terms or conditions of employment," there need be no loss of pay or promotion opportunity, and the effect need not be "tangible." Rather, in keeping with the language and purpose of section 704, the conduct need only be such as could well dissuade a reasonable worker from making or supporting a discrimination complaint. The conduct here easily meets that standard. II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF'S SEXUAL HARASSMENT CLAIM. The district court erred in granting summary judgment on Vajdl's sexual harassment claim. Where, as here, all of the alleged harassers are plaintiff's coworkers or third parties, an employer such as Mesabi is liable for a sexually hostile work environment if the plaintiff was subjected to sexual harassment that was objectively and subjectively severe or pervasive enough to alter the terms or conditions of her employment, and the employer knew or should have known about the harassment and failed to take appropriate remedial measures. Howard v. Burns Bros., 149 F.3d 835, 840 (8th Cir. 1998). Although it cited to this standard, the court's analysis of both issues is flawed. a. Hostile Work Environment. Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). To establish a discriminatory hostile work environment, a plaintiff must show that the harassment she was experiencing was sufficiently severe or pervasive to create an objectively hostile or abusive work environment and that she subjectively perceived the environment as abusive. See Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). The determination whether an environment is hostile or abusive requires particularized consideration of "all the circumstances," including the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating or a mere offensive utterance; whether it unreasonably interferes with an employer's work performance; the physical proximity of the harasser and the presence or absence of other people. Id. at 23; Crist v. Focus Homes, 122 F.3d 1107, 1111 (8th Cir. 1997); see also Howard, 149 F.3d at 840 (noting that "unwanted physical contact" and "frequency of the conduct" are "aggravating factors"). In assessing pervasiveness, harassment of employees other than the plaintiff may be considered. Howard, 149 F.3d at 838. Also relevant is the "social context" of the conduct -- what might be dismissed as an annoyance in one context could be intimidating or threatening in another. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998) (contrasting coach's smacking player on the buttocks with similar conduct in an office); cf. Crist, 122 F.3d at 1111 (employees' "expectations given their choice of employment" is relevant factor in assessing harassment at home for developmentally impaired teens). Furthermore, actionable conduct need not be both pervasive and severe; "one or the other will do." Hostetler v. Quality Dining, 218 F.3d 798, 808 (7th Cir. 2000); accord Harvill v. Westward Communications, 433 F.3d 428, 434-35 (5th Cir. 2005). Thus, assuming it is unwelcome and both objectively and subjectively offensive or abusive, the more pervasive the harassment is, the less severe it need be. See Hostetler, 218 F.3d at 808-09. Applying that standard, the district court mistakenly concluded that as a matter of law the harassment Vajdl was complaining of was "not severe or pervasive enough to be actionable." Order at 22-23. Specifically, we note that Vajdl was harassed by as many as three coworkers throughout virtually her entire tenure at Mesabi, both in her assigned unit and elsewhere in the facility -- and even received unwanted calls at home. See generally Order at 7-10, 12-13, 15. The harassment included touching as well as comments and, in the district court's words, was "incessant" and "persistent, occurring on a nearly daily basis." Id. at 23-24. It was also open enough that Lenzen joked that Vajdl had a "new superstalker" when Lawson began pestering her (id. at 12), and another employee teased her about Muehlberg's attentions. Id. at 10. Frequency and physical contact are two aggravating factors identified in Howard, 149 F.3d at 840. Further, the court compounded its error by ignoring the conduct of the inmates when considering the impact of the harassment by Vajdl's coworkers. The issue is whether a "reasonable person in the plaintiff's position" would have judged the work environment to be hostile or abusive, considering "all the circumstances" including the "social context in which a particular behavior occurs." Oncale, 523 U.S. at 81-82; see also Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997) ("work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it 'into a series of discrete incidents'") (quoting Burns v. McGregor Elec. Indus., 955 F.2d 559, 564 (8th Cir. 1992)). By separately assessing and then dismissing the inmates' harassment, however, the court ignored the "social context" -- a residence for violent sex offenders. The court also overlooked the fact that inmate conduct directed at Vajdl was threatening and intimidating and the same coworkers who were harassing her were the people she needed to rely on for support in an emergency. As the Second Circuit reasoned, "in the prison context especially, officers must depend upon their co-workers for mutual protection and rely upon them for their own ability to assert authority over others in potentially dangerous situations. In such a setting, actions of co-officers and superiors that undermine an officer's sense of personal safety or compromise her capacity to command respect and obtain compliance from co-workers, subordinates and inmates assume greater, not lesser, significance." Dawson v. County of Westchester, 373 F.3d 265, 273 (2d Cir. 2004). Viewing the totality of circumstances, rather than simply a "series of discrete events," there was ample evidence to support a finding that Vajdl was subjected to a hostile work environment while employed as a youth care worker at Mesabi. In rejecting plaintiff's claim, the district court reasoned that the coworker harassment, though "offensive," was "not lewd or physically threatening" but merely "juvenile," "immature," "sophomoric" and "inappropriate," and, so, did not "poison the work environment." Order at 22-24. While the "threshold for actionable harm is high" (id. at 18), it is not insurmountable. Harassment need not, for example, "be so extreme that it produces tangible effects on job performance or psychological well-being." Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999). Here, Vajdl found the harassment sufficiently disturbing to consult a physician. See 1JA383. The district court also cited several cases where this Court rejected harassment claims. See Order at 23-24 (citing cases). This Court has held, however, that, although comparison to other cases may be helpful, "sexual harassment cases are necessarily fact-intensive and must be decided on a case-by-case basis with proper consideration of all relevant facts." Crist, 122 F.3d at 1111 n.4. "Harris sets out examples of factors that can be considered in deciding whether an environment is hostile, [but] no single factor is required or determinative, and the relevancy and weight of any factor must be evaluated in light of all the facts of a specific case." Hathaway, 132 F.3d at 1221.<2> Here, a jury, viewing the totality of circumstances, could find the facts in this case materially different from the facts in the cases cited by the court. In none of those cases, for example, was plaintiff's workplace dangerous, and in none was she required to rely on her harassers for her safety. In light of such differences, the rulings in those cases do not compel the district court's decision here. b. Notice. In addition to its faulty approach to the harassment, the district court erred in its assessment of when Mesabi could be charged with notice. As noted above, where as here the case involves coworker (and third party) harassment, the standard is negligence -- an employer is responsible for its own negligence if it fails to take appropriate remedial action in response to harassment about which it knew or should have known. See, e.g., Varner v. National Super Markets, 94 F.3d 1209, 1213 (8th Cir. 1996); Crist, 122 F.3d at 1110. As the district court recognized, an employer is charged with notice when a supervisor learns of the harassment. See Varner, 94 F.3d at 1213. The employer may also be responsible, however, where "information about the harassment came 'to the attention of someone who (a) has under the terms of his employment, or (b) is reasonably believed to have . . . a duty to pass on the information to someone within the company who has the power to do something about it.'" Sims v. Health Midwest Physician Servs. Corp., 196 F.3d 915, 919 (8th Cir. 1999) (quoting, e.g., Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997)). Thus, in Sims, for example, this Court concluded that the employer could be liable for inaction after plaintiff complained to a front-office coordinator who had been delegated the authority to address "problems" in the absence of the office manager. Id. at 918-19. See also Hall v. Gus Constr. Co., 842 F.2d 1010, 1011, 1016 (8th Cir. 1988) (plaintiffs complained to foreman, who also observed much of the harassment); cf. Young, 123 F.3d at 674 (citing Hall as holding that notice "merely to 'management' without distinguishing among the different tiers of management" is sufficient); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 59, 64 (2d Cir. 1998) (group leader); Lockard v. Pizza Hut, 162 F.3d 1062, 1066-67 (10th Cir. 1998) (shift manager). By analogy to Sims, a jury here could find that Mesabi was on notice of Vajdl's harassment based on the knowledge of Vajdl's shift managers, Lenzen and Borowicz. While the district court did not specify what a shift manager's duties were, the record reflects that they included general oversight of the shift. In connection with her written warning, for example, Vajdl was required to obtain permission from a shift manager before sanctioning an inmate. Order at 15. In addition, Lenzen testified that he "could suggest to [youth care workers] that they should improve on a certain behavior or this should be done in a certain way. . . ." (1JA268), while Borowicz testified that he would "just make sure things are getting done" on the shift and then report to Jacobson. 1JA63. Moreover, Mesabi's harassment policy urges any employee with knowledge of harassment to report it to a supervisor. 2JA596. See Sims, 196 F.3d at 920 (noting that harassment policy "provided that any employee who 'becomes aware of sexual harassment against another employee' should bring the matter to the attention of his or her supervisor"). In our view, taken together, this evidence would support a finding that a shift manager either had a duty or was reasonably believed to have a duty to pass on information about harassment to someone within the company with power to "do something about it." Indeed, Vajdl testified that she complained to Lenzen about Muehlberg (Order at 9-10), and, according to the record, both Borowicz and Lenzen did eventually pass on information to Jacobson that suggested Vajdl was being harassed. See, e.g., Order at 10 (Borowicz's e-mail); 1JA270 (Lenzen). Furthermore, an employer has a duty not only to remedy existing harassment but also to take all reasonable steps to prevent harassment from occurring. See, e.g., 29 C.F.R. § 1604.11(f) (EEOC regulations); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) ("recogniz[ing] the employer's affirmative obligation to prevent violations" would "implement clear statutory policy and complement the Government's Title VII enforcement efforts"). Here, according to the district court, Mesabi was on notice that Gustafson, Lawson and especially Muehlberg had "propensities to harass women" (Order at 22 n.3); Muehlberg had received a "final written warning" for a harassing incident less than one year before the alleged harassment of Vajdl. 1JA316-20 (warning). In light of that history, a jury could find that Mesabi had a duty to take some steps to ensure that these men would not continue harassing other women. One obvious step Mesabi could have taken was to require shift managers to report complaints and their own observations of potential harassment to company officials like Jacobson or HR manager Foszpanczyk. To the extent Mesabi failed to do even that, it can and should be deemed to have notice of conduct that shift managers knew about and did not report. Cf. Hirase-Doi v. U.S. West Communications, 61 F.3d 777, 783 (10th Cir. 1995 ("We believe that [defendant] may be put on notice if it learns that the perpetrator has practiced widespread sexual harassment in the office place, even though [it] may not have known that this particular plaintiff was one of the perpetrator's victims."). The district court reasoned that Vajdl's complaints to Lenzen did not put Mesabi on notice because he was not a "supervisor" within the meaning of Joens v. John Morrell & Co., 354 F.3d 938, 940-41 (8th Cir. 2004) -- that is, "someone who has the power to take tangible employment action against the victim, such as the authority to hire, fire [or] promote." Order at 19; id. at 25 n.4. Significantly, however, the definition in Joens defines "supervisor" for purposes of imposing vicarious liability where the harasser himself is the supervisor. 354 F.3d at 940-41. Determining whether an individual is in a position to accept notice of harassment for purposes of Title VII liability entails an entirely different inquiry. See Dhyne v. Meiners Thriftway, 184 F.3d 983, 987 (8th Cir. 1999) ("different kind of case"); Williamson v. City of Houston, 148 F.3d 462, 465-66 (5th Cir. 1998) ("different inquiry"). Here, the question is simply whether the conduct has come to the attention either of an individual empowered to address it or, at a minimum, of someone reasonably believed to have a duty to pass the information on to such an individual. See Sims, 196 F.3d at 919. In relying on the standard set in Joens, the district court conflated the two inquiries. Not only is the ruling incorrect but it makes no sense: there is no good reason to require a showing that an individual supervised the victim of harassment before his knowledge of the harassment can be imputed to the company. We therefore urge this Court to clarify that Sims, not Joens, applies in cases such as this where coworkers or third parties are the alleged harassers. Moreover, because the evidence supports a finding that the knowledge of Lenzen and Borowicz can be charged to Mesabi, the Court should hold that summary judgment on Vajdl's harassment claim was improperly granted and, accordingly, reverse. CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6713 words, from the Statement of Interest through the Conclusion, 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 monospaced typeface using Microsoft Word 2003 with Courier New 12-point font. Attorney for Equal Employment Opportunity Commission Dated: _________________________ ADDENDUM District Court Decision CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent September 11, 2006, by express mail, postage prepaid, to: Lee M. Friedman Daniel R. Wachler BRIGGS & MORGAN 80 South Eighth Street 2200 IDS Center Minneapolis, MN 55402 Julie A. Matonich 220 South Sixth Street, Suite 215 Minneapolis, MN 55402 David A. Arndt MATONICH & PERSSON P.O. Box 127 2031 Second Avenue East Hibbing, MN 55746 ________________________________ Barbara L. Sloan *********************************************************************** <> <1> In assessing pervasiveness, the court refused to consider evidence that these individuals had harassed other female employees since "nearly all" of that harassment occurred before Vajdl's employment. Order at 22 n.3. <2> Indeed, even seemingly minor factual differences can lead to diametrically different results. Compare, e.g., Bales v. Wal-Mart Stores, 143 F.3d 1103 (8th Cir. 1998) (upholding jury verdict for pharmacy clerk who complained that pharmacist repeatedly asked about her boyfriend, suggested he might leave his wife, ordered copies of sexy photo she had shown him, made sexual comments, and sent her sexually suggestive birthday card), with Henthorn v. Capitol Communications, 359 F.3d 1021 (8th Cir. 2004) (upholding summary judgment for defendant where plaintiff complained that supervisor regularly asked her out, called her twice at home, told other employees she was "hot," and offered to destroy memo criticizing her performance if she agreed to have a drink with him).