Watson v. E.S. Sutton, Inc., 2d Cir. June 12, 2006 Brief as amicus No.05-5388-cv IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ ANNIE WATSON, Plaintiff-Appellee, v. E.S. SUTTON, INC., Defendant-Appellant. ____________________________________________________ On Appeal from the United States District Court for the Southern District of New York ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF AFFIRMANCE ____________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS 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. . . . . . . . . . . . . . . . . . 3 3. District Court Decision . . . . . . . . . . . . . . . 7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT I. AN EMPLOYEE IS PROTECTED FROM RETALIATION BY § 704(a) OF TITLE VII WHEN SHE COMPLAINS TO MANAGEMENT ABOUT SEXUALLY EXPLICIT CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD CONSTITUTE A SEXUALLY HOSTILE WORK ENVIRONMENT IN VIOLATION OF § 703(a).. . . . . . . . 10 II. THE JURY REASONABLY FOUND THAT WATSON MITIGATED HER DAMAGES BY STARTING A PHOTOGRAPHY BUSINESS AFTER A LONG AND FRUITLESS SEARCH FOR COMPARABLE WORK IN THE FASHION INDUSTRY . . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)..................................... 29 Alexander v. Gerhardt Enterprises, 40 F.3d 187 (7th Cir. 1994)......................... 13, 22 Burlington Industries v. Ellerth, 524 U.S. 742 (1998).................................. 16-22 Carden v. Westinghouse Elec. Corp., 850 F.2d 996 (3d Cir. 1988).......................... 26-27 Clark County School District v. Breeden, 532 U.S. 268 (2001)............................... 8, 20-23 Clark County School District v. Breeden, 2000 WL 991821 (9th Cir. July 19, 2000)................. 21 Crumpacker v. Kansas Dept of Human Resources, 338 F.3d 1163 (10th Cir. 2003).......................... 21 Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000).......................... 23-24 Dailey v. Park Place Airport Parking, No.4:99CV0403, 2000 WL 641203 (E.D.Mo. May 16, 2000). 15-16 Dailey v. Societe Generale, 108 F.3d 451 (2d Cir. 1997)............................. 27 Distasio v. Perkin Elmer Corp., 157 F.2d 55 (2d Cir. 1998).............................. 17 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998)............................ 15 EEOC v. Navy Federal Credit Union, 424 F.3d 397 (4th Cir. 2005)............................ 15 Faragher v. City of Boca Raton, 524 U.S. 775 (1998).................................. 16-22 Fine v. Ryan International Airlines, 305 F.3d 746 (7th Cir. 2002)..................... 12, 13-14 Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)..................................17, 25 Foster v. Time Warner Entertainment Co., 250 F.3d 1189 (8th Cir. 2001)........................... 15 Goos v. National Association of Realtors, 715 F. Supp. 2 (D.D.C. 1989)............................ 16 Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564 (2d Cir. 1989)............................ 16 Hansard v. Pepsi-Cola Metro Bottling Co., 865 F.2d 1461 (5th Cir. 1989)........................... 28 Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998).......................... 24-26 Holmes v. Long Island Railroad Co., 2001 WL 797951 (E.D.N.Y. June 4, 2001).................. 23 Hugo Boss Fashions v. Federal Insurance Co., 252 F.3d 608 (2d Cir. 2001)............................. 10 Jordan v. Alternative Resources Corp., 447 F.3 324 (4th Cir. 2006).......................... 19-20 J.P. Stevens v. NLRB, 380 F.2d 292 (2d Cir. 1967)............................. 15 Kirsch v. Fleet St., Ltd., 148 F.3d 149 (2d Cir. 1998)............................. 26 McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001)...................... 10-11, 19 Miller v. SwissRe Holding, 771 F. Supp. 56 (S.D.N.Y. 1991)......................... 28 Mitchell v. Robert de Mario Jewelry, 361 U.S. 288 (1960)..................................... 19 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002)..................................... 17 NLRB v. Ryder Systems, 983 F.2d 705 (6th Cir. 1993)............................ 27 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)................................. 16, 18 Reed v. A.W. Lawrence & Co., 95 F.3d 1170 (2d Cir. 1996).................. 11, 12-13, 22 Robinson v. Shell Oil Co., 519 U.S. 337 (1997).................................. 10-11 Schwabacher v. United States, 334 U.S. 182 (1948)..................................... 15 Smith v. Great American Restaurants, 969 F.2d 430 (7th Cir. 1992)............................ 27 Spadola v. New York City Transit Authority, 242 F. Supp.2d 284 (S.D.N.Y. 2003)...................... 23 Tesser v. Board of Education, 370 F.3d 314 (2d Cir. 2004)............................. 10 Truesdale v. Moore, 142 F.3d 749 (4th Cir. 1998)............................ 14 United States v. Weslin, 156 F.3d 292 (2d Cir. 1998).......................... 14-15 United States v. Yonkers Board of Education, 837 F.2d 1181 (2d Cir. 1987)............................ 14 Van Dusen v. Barrack, 376 U.S. 612 (1964)..................................... 15 Wimmer v. Suffolk County Police Dept., 176 F.3d 125 (2d Cir. 1999)............................. 22 STATUTES 29 U.S.C. § 623(d)........................................... 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq........................... passim 42 U.S.C. § 2000e-3(a).............................. passim 42 U.S.C. § 12203(a)-(b)...................................... 1 OTHER AUTHORITY EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual 405:7651 (1999), available at www.eeoc.gov/policy/docs/harassment.html... 18 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ No.05-5388-cv ______________________ ANNIE WATSON, Plaintiff-Appellee, v. E.S. SUTTON, INC., Defendant-Appellant. _______________________________________________ On Appeal from the United States District Court for the Southern District of New York _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other federal employment discrimination laws. This appeal raises important questions regarding the legal standards for determining whether an individual has engaged in protected opposition, within the meaning of the anti-retaliation provision of Title VII and, by implication, the Age Discrimination in Employment Act, 29 U.S.C. § 623(d), and the Americans with Disabilities Act, 42 U.S.C. § 12203(a)-(b). Defendant takes the position that an employer may fire an employee for complaining about sexually explicit comments in the workplace unless the employee reasonably believes that the complained-of conduct was already severe or pervasive enough to constitute an actionable hostile work environment. Defendant's position, if accepted by this Court, would discourage employees from promptly reporting harassing conduct that, if repeated often enough, would violate the statute. Because the Commission's prevention and enforcement efforts depend on employees' willingness to step forward and expose potentially unlawful conduct, such a ruling would undermine the Commission's ability to enforce these statutes. We therefore offer our views to this Court. STATEMENT OF THE ISSUES<1> 1. Whether an employee is protected from retaliation by § 704(a) of Title VII when she complains to management about sexually explicit conduct in the workplace that, if repeated often enough, would constitute a hostile work environment in violation of § 703(a). 2.Whether a plaintiff who was terminated in violation of Title VII may satisfy her obligation to mitigate her damages by starting a business in an unrelated field after unsuccessfully searching for comparable employment in her previous field. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment in a case under Title VII as well as state and local law. On April 9, 2002, plaintiff brought suit alleging that she was terminated for complaining to her supervisor about sexual comments made to her by a coworker. Docket entry number ("R.")1. The case was tried to a jury in April 2004 and, on April 30, the jury returned a unanimous verdict for plaintiff. R.47 & unnumbered entry dated 4/30/2004. Judgment was entered on May 10, 2004. R.50. In September 2005, the district court reduced the compensatory and punitive damage awards but otherwise denied defendant's motions for a new trial, to alter or amend judgment, and for relief from judgment under Rules 59 and 60, Fed. R. Civ. P. R.73 ("Order"). Defendant appealed on October 6, 2005. R.79. 2. Statement of Facts Annie Watson's career as a designer and salesperson in the fashion industry began in 1981. On August 30, 1999, Watson started working as a salesperson for E.S. Sutton ("ESS"), a company that sells sportswear to retailers such as Wal-Mart and Dress Barn. Watson testified that she was hired primarily to attempt to recapture the J.C. Penney account, lost some years before due to quality and delivery problems. Watson's supervisor, Albert Sutton, acknowledged that this task might take a year or more. Order at 4-6.<2> Watson testified that in the fall of 1999 she persuaded Penney's to agree to a "test order" -– a small order of sweaters to be delivered within an accelerated time-frame. According to Watson, Albert and another supervisor, Yvette Sutton (no relation to Albert), signed off on the deal but, in the end, the order could not be delivered in time. Although Watson attempted to negotiate an extension, Penney's cancelled the order. Despite this set-back, however, Watson continued to solicit orders from Penney's and was hopeful she could convince the company again to do business with ESS. Order at 7-8.<3> In early January 2000, Watson had a "distressing encounter" with Gaby Sutton, who was the owner's nephew and Albert's cousin. Watson was aware that, on other occasions, Gaby had made sexual remarks to other employees such as asking one female employee whether she "gave her date blow jobs." On the day in question, Gaby came into Watson's office, announced that he had a subscription to Penthouse magazine, and stated that he had read an article "about how women pee on men during sex[.] . . . [H]e wanted to know what it felt like, and he was wondering whether [Watson] had ever done that with [her] boyfriend and what it felt like." When Watson replied, "No, get out of here," Gaby continued, "Well, I figure you'd know all about those kind of things." Watson responded, "Well, I don't," and Gaby left. Watson testified that she was "offended" by the encounter; a coworker described her as "visibly upset," "red" and "mortified." Order at 9-11 (noting Watson's testimony that "[i]t was this very predatorial kind of feeling; he's standing up, I'm sitting down, no one else is in the office"). Watson attempted to report the incident to Albert, but he was out. Accordingly, she wrote him a letter, detailing the conversation and concluding: "I ask that you please discuss this matter with [Gaby] and review any company policy on inappropriate conduct. I would prefer to keep this matter private and ask that you request that of him. I simply do not want it to happen again. Thank you for your attention to this matter. I trust that he will not do anything like it again." Order at 11. After receiving the letter, Albert discussed the incident with Gaby, who admitted making some sort of comment. Albert then spoke to Watson, stating that ESS took such matters very seriously and asking whether she wanted Gaby fired. She responded that, if that was the only way to put an end to his behavior, "then yes." A few days later, however, Albert told Watson that Gaby would not be fired because he had hired a lawyer and "had rights." Purportedly to minimize her contact with Gaby, Watson was moved to a new office -– the company described it as down the hall; Watson said it was next door to her old office. Order at 11-13. Gaby did not bother Watson again during her remaining days at ESS. At this time ESS had an anti-discrimination policy that "urged, encouraged and expected" employees who believed that they were victims of or witnesses to harassment "in any form" to discuss "the incident" "promptly" with a supervisor or other manager. Order at 16; see also PEx2 (adding that "[r]etaliation against an individual who makes a report . . . would be a serious violation of this Policy"). According to Watson, before the incident with Gaby, she had never had a negative review and had always received support for her sales efforts. Afterwards, however, she "felt like a leper"; Yvette and Albert ignored her and did not respond to her requests for samples or prices. Depressed, she saw a therapist and began taking anti-depressants. Less than a month after the complaint, she was fired, purportedly for poor performance. Order at 12-14 & n.4 (noting that, at Watson's request, Yvette Sutton provided her with a recommendation letter). Watson testified that, after her discharge, she immediately began looking for work, contacting headhunters she had used in the past and answering ads in trade journals and newspapers. Despite these efforts, however, she could not find comparable work. The following year, at a friend's suggestion, she began taking photographs professionally. By the time of trial, Watson had opened a studio and was starting to make a profit. Order at 14-15. 3.District Court Decision The district court remitted the damages but otherwise denied defendant's motions. See generally R.73, Order. The court concluded, inter alia, that the jury was properly instructed to "‘determine whether [Watson] engaged in protected activity in complaining about Gaby Sutton's conduct,' that is, ‘whether her complaint was based on a good faith, reasonable belief that she had been sexually harassed in violation of the law." Order at 19 (citing jury instructions). In the court's view, defendant's arguments that plaintiff failed to make out a claim under that standard were "wholly without merit." Id. at 23. The district court also rejected the argument made for the first time in defendant's post-trial motion that Watson failed to show that she engaged in protected activity since, under Clark County School District v. Breeden, 532 U.S. 268 (2001), she could not have had a reasonable good faith belief that she had been sexually harassed in violation of Title VII. Initially, the court held that the defendant waived this argument by failing to mention Breeden in any pre-trial motion. Id. at 26. The court also distinguished Breeden on its facts. The court noted that in Breeden, the plaintiff, whose job included reading applicants' psychiatric evaluations, was discharged after complaining about an incident in which her supervisor, reading a comment in one application -– "I hear that making love to you is like making love to the Grand Canyon" -- stated that he did not understand the comment, whereupon plaintiff's coworker responded that he would explain the comment later and both men laughed. According to the court, the two- sentence exchange between the supervisor and coworker was "far less offensive" than Gaby's statements to Watson, and the comment in the application, unlike Gaby's statements, was not directed at the plaintiff. Order at 24. Further, the court found that additional evidence supported the jury's finding of unlawful retaliation, noting that (1) ESS's anti-harassment policy provides that "inappropriate comments" like Gaby's can be actionable harassment; (2) Albert admitted that he would view the conduct described in Watson's letter to him as harassment, if the incident had occurred as she reported; and (3) ESS's HR director admitted that the conduct would at least merit an investigation as to whether harassment had occurred. Id. at 24-25. With respect to mitigation of damages, the court noted that "the evidence at trial plainly demonstrated that Watson embarked on a lengthy and thorough search for employment in the fashion industry" before deciding to pursue photography as an alternative career. The court reasoned: "Self-employment is an acceptable form of mitigation," and the "Court sees no reason to hold otherwise just because a plaintiff has switched industries, especially where, as here, such a decision was reasonable under the circumstances." Order at 38-39 (adding that jury considered plaintiff's "limited prospects of finding employment comparable to her job at ESS"). The court further found no evidence – "and obviously the jury agreed" -— that plaintiff deliberately opted to forego a highly-paid career to pursue a new, lower-paying profession. Id. at 39. STANDARD OF REVIEW This Court reviews the denial of a motion for a new trial for abuse of discretion. Tesser v. Board of Educ., 370 F.3d 314, 320 (2d Cir. 2004) (citing Hugo Boss Fashions v. Federal Ins. Co., 252 F.3d 608, 623 (2d Cir. 2001)). A "motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Id. (citations omitted). ARGUMENT I. AN EMPLOYEE IS PROTECTED FROM RETALIATION BY § 704(a) OF TITLE VII WHEN SHE COMPLAINS TO MANAGEMENT ABOUT SEXUALLY EXPLICIT CONDUCT THAT, IF REPEATED OFTEN ENOUGH, WOULD CONSTITUTE A HOSTILE WORK ENVIRONMENT IN VIOLATION OF § 703(a). Section 704(a) of Title VII makes it unlawful for an employer to discriminate against an employee because the employee "has opposed any practice made an unlawful employment practice" by the Act. 42 U.S.C. § 2000e-3(a). As this Court has recognized, this provision must be interpreted broadly, consistent with its purpose of "‘[m]aintaining unfettered access to [Title VII's] remedial mechanisms,'" lest fear of retribution deter employees from complaining about perceived discrimination. See, e.g., McMenemy v. City of Rochester, 241 F.3d 279, 284-85 (2d Cir. 2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). Thus, this Court has read § 704(a)'s protections to extend both to employees who oppose conduct that actually violates Title VII and to employees who "had a good faith, reasonable belief that the underlying employment practice was unlawful." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Here, the jury applied the good faith reasonable belief standard to the evidence and found that Watson engaged in protected opposition when she informed Albert Sutton about Gaby's remarks to her and asked that he ensure such conduct would never reoccur. See Order at 24-25. There can be no doubt that Watson justifiably believed that Gaby's explicit sexual remarks and inquiries constituted a form of sexual harassment. Even Albert Sutton conceded that he would view Gaby's statements as sexual harassment (Order at 25 (citing Tr.168)), and they would violate the company's anti-harassment policy. PEx2. Moreover, evidence indicated that Gaby had made pointed sexual statements to other ESS employees, at least one of whom had commented on this conduct to Albert, and nothing in the record indicates that Gaby would have ceased making these remarks had Watson not complained. In light of this evidence, the district court properly denied defendant's motions for a post-judgment relief. On appeal, ESS argues that "reporting a single offensive comment of a co-worker does not, as a matter of law, constitute protected activity." Defendant's Brief ("Def.Br.") 5, 12-20. In the company's view, it was free to fire Watson for complaining about Gaby's behavior without violating Title VII since Watson could not reasonably have believed that Gaby's "single offensive comment" was sufficiently "serious" to create a sexually hostile work environment in violation of Title VII. See Def.Br. 16-17.<4> This argument should be rejected for several reasons. Initially, we note, the jury's finding here falls well within the norm for retaliation cases. In numerous other cases, this Court and others, citing the reasonable good faith belief standard, have held that § 704(a)'s protections extended to plaintiffs who, like Watson, complained about even a single harassing incident. In Reed, for example, the plaintiff was terminated soon after complaining that, when she suggested to a coworker that he was treating her like a subordinate, he responded: "if you think my pecker is getting in the way . . . ." 95 F.3d at 1175. Although her complaint was limited to this comment, there was also evidence of other similar incidents including a sexually derogatory remark by another coworker. Id. at 1179. Viewing the evidence as a whole, this Court upheld the jury verdict on her retaliation claim, reasoning that plaintiff might have perceived the complained-of comment as merely the last in a series of incidents adding up to a hostile work environment. Id. at 1179-80. The Seventh Circuit reached a similar conclusion in Alexander v. Gerhardt Enterprises, 40 F.3d 187, 190 (7th Cir. 1994), where an African-American hairdresser was fired after complaining that, at a company meeting, her white supervisor described an African- American stylist's demonstration of a specific hair-curling procedure, adding "if a nigger can do it, anybody can do it." Rejecting the defendant's argument that complaining about a "single racist slur" did not constitute protected opposition, the court of appeals noted that the complaint was intended "to prevent similar comments in the future," and plaintiff reasonably believed the complained-of conduct to be "racially offensive." Id. at 195-96. Cf. Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) ("improper" to retaliate unless claim of Title VII violation is "completely groundless"). This approach is fully consistent with the language of Title VII. Section 704(a) prohibits discrimination against an individual "because he has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C.§ 2000e-3(a) (emphasis added). Individuals can "oppose" discrimination not only after a violation has occurred but also to prevent a violation from occurring. This is the common usage of the word "oppose." By way of illustration, an individual seeking to prevent low-income housing from being constructed in his neighborhood is said to "oppose" such construction. Cf. United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-24 (2d Cir. 1987) (strong majority- community "opposition" contributed to placing low-income housing in minority communities). Likewise, an individual who "opposes" capital punishment or abortion does so not only by protesting against executions or abortions after they have occurred but also by engaging in activities designed to prevent them from taking place. See, e.g., Truesdale v. Moore, 142 F.3d 749, 757-58 (4th Cir. 1998) (approving exclusion from jury of jurors who "opposed the death penalty" because their "opposition to it would prevent [them from] voting for a death sentence"); United States v. Weslin, 156 F.3d 292, 294 (2d Cir. 1998) (upholding conviction of abortion "opponents" whose conduct was aimed at "prevent[ing] the killing of babies"). Cf. Van Dusen v. Barrack, 376 U.S. 612, 623 (1964) (party "opposed to transfer" of case will act "to prevent a transfer"); Schwabacher v. United States, 334 U.S. 182, 207 (1948) (stockholders "oppos[e]" a merger by acting to prevent it); J.P. Stevens v. NLRB, 380 F.2d 292, 295 (2d Cir. 1967) (quoting notice posted by employer stating intent "to oppose this Union" and "to prevent it from coming in here"). Likewise, under Title VII, where the issue has been presented, complaints aimed at preventing violations have been held to be protected under § 704. See, e.g., EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (holding that individual opposed discrimination within the meaning of § 704(a) when he attempted to prevent the discharge of an African-American employee after concluding the discharge was racially-motivated).<5> Thus, here, since Watson's complaint letter was clearly aimed at preventing Gaby from making further offensive comments and thereby creating a hostile work environment, the jury reasonably could find that her complaint should be considered protected opposition. Construing § 704(a) to include protection for complaints aimed at preventing discrimination from occurring furthers the purposes of Title VII and accords with standards for liability in the harassment context. Although Title VII also has a remedial purpose, its "primary" objective, "like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm." Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998); see also, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 145-46 (2004) ("promote conciliation rather than litigation"; deter discrimination). Consistent with that objective, the Supreme Court has imposed on employers an "affirmative obligation" to "prevent violations" from happening and a "coordinate duty" on employees to "‘use such means as are reasonable under the circumstances to avoid or minimize the damages' that result from violations of the statute." Faragher, 524 U.S. at 806 (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982)); see also Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (borrowing "avoidable consequences doctrine" from tort law). While subjecting an employee to a sexually hostile work environment is "an unlawful employment practice" under Title VII, it differs from other such practices in key respects. It typically "occurs over a series of days or perhaps years," rather than "on any particular day," and "a single act of harassment may not be actionable on its own." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) ("Such claims are based on the cumulative effect of individual acts."). In addition, it often serves no purpose of the employer and involves no official employer act, so employers may be unaware that a hostile work environment is developing unless and until they receive complaints. See generally Faragher, 524 U.S. at 794-808; Distasio v. Perkin Elmer Corp., 157 F.2d 55, 63-64 (2d Cir. 1998) (liability for coworker harassment only if employer provides "no reasonable avenue for complaint" or fails to remedy harassment about which it otherwise knows or should know). In light of these unique features, the Supreme Court has repeatedly held that Title VII's purposes would best be served by "encouraging employees to report harassing conduct before it becomes severe or pervasive" enough to be actionable. Ellerth, 524 U.S. at 764 (emphasis added); Suders, 542 U.S. at 145 (citing Ellerth); see also Faragher, 524 U.S. at 806 (citing with approval 29 C.F.R. § 1604.11(f) (EEOC regulation), advising employers to "take all necessary steps to prevent sexual harassment from occurring"). Accordingly, employers are encouraged to implement effective anti-harassment policies and complaint procedures and may be liable for harassment in the absence of a policy. See Faragher, 524 U.S. at 806; EEOC, Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual 405:7651, 7662 n.58 (employer should have "mechanism" for investigating allegations of coworker harassment and undertaking appropriate corrective action), available at www.eeoc.gov/policy/docs/harassment.html. At the same time, if an employee fails promptly to "avail herself of the employer's preventive or remedial apparatus," she may be barred from obtaining relief for any reasonably avoidable harm. Faragher, 524 U.S. at 806-07. Compare PEx2 (ESS's anti-harassment policy "urg[ing], encourag[ing] and expect[ing]" employees who "believe" they were a victim of or witness to any act of harassment "regardless of who the offender may be" to "discuss the incident promptly with a supervisor"). Encouraging -- even requiring -- employees "to report harassing conduct before it becomes severe or pervasive" is incompatible with an interpretation of § 704(a) that allows employers to discharge or otherwise retaliate against employees who do exactly that. As this Court recognized in McMenemy, employees will be discouraged, or deterred, from using Title VII remedial mechanisms -– and by implication also those of their employer -– if they know their livelihoods may suffer as a result. See 241 F.3d at 284; cf. Mitchell v. Robert de Mario Jewelry, 361 U.S. 288, 292 (1960) ("fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions") (discussing Fair Labor Standard Act). Compare PEx2 (prohibiting retaliation against an individual who reports any harassment). Accordingly, § 704(a) logically must be read to protect not only complaints of arguably actionable conduct but also conduct that, if repeated often enough, would likely become a Title VII violation.<6> In contrast, if ESS's view prevailed, an employee such as Watson could find herself in a Catch- 22 situation. On the one hand, if she complains too soon -– i.e., before the harassment is severe or pervasive enough that a court would rule she reasonably could have deemed it unlawful –- her employer may retaliate against her at will. On the other hand, if she waits until the harassment is so severe or pervasive that it is clearly unlawful, she may be barred by the doctrine of avoidable consequences from securing relief for some or all of the harassment she endured. As support for its position, ESS cites Clark County School District v. Breeden, 532 U.S. 268 (2001), a per curiam decision issued without briefing. See Def.Br. 13-19. In Breeden, a female employee met with a male coworker and her male supervisor to review the psychological evaluations of four job applicants. The report on one applicant disclosed that he had once told a coworker, "I hear making love to you is like making love to the Grand Canyon." The supervisor read this comment aloud, looked at plaintiff, and said, "I don't know what that means." The coworker replied, "Well, I'll tell you later," and both men chuckled. 532 U.S. at 269. Plaintiff complained about this incident to management, and her job duties were later reorganized to her detriment. The Ninth Circuit concluded that "a reasonable person in Breeden's position could have mistakenly believed" that the supervisor's behavior constituted unlawful sexual harassment (2000 WL 991821, at *1 (9th Cir. July 19, 2000)), but the Supreme Court summarily reversed. Without addressing "the propriety of the standard," the Court reasoned that "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standards." 532 U.S. at 270-71. Stressing that it was part of plaintiff's job to review these psychological evaluations and that she "conceded that it did not bother or upset her to read the statement in the file," the Court stated that "isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. ESS argues that Breeden stands for the proposition that unless an employee "subjectively and objectively" believes that the harassment she is complaining about was severe or pervasive enough to alter the terms or conditions of her employment, her complaint is not protected. In light of Faragher and Ellerth, however, it is inconceivable that the Supreme Court intended Breeden as an invitation to employers to retaliate against employees who do exactly what the Court encouraged – that is, promptly call attention to sexual harassment before it becomes actionable. Defendant's broad interpretation of Breeden, unmoored to the facts of the case, should therefore be rejected. The Tenth Circuit has stated that Breeden "implicitly reject[s] any interpretation of Title VII which would permit a plaintiff to maintain a retaliation claim based on an unreasonable good-faith belief that the underlying conduct violated Title VII." Crumpacker v. Kansas Dept. of Human Resources, 338 F.3d 1163, 1170 (10th Cir. 2003) (emphasis in original) (upholding sex discrimination claim under good faith reasonable belief standard). If so, Breeden does not alter this Court's standard, which already disallows such claims. See, e.g., Wimmer v. Suffolk Co. Police Dept., 176 F.3d 125, 134-35 (2d Cir. 1999) (complaints about fellow officers' racially discriminatory treatment of citizens is not Title VII "protected activity" since plaintiff could not reasonably believe that complained-of conduct was "employment practice"). Protecting such conduct furthers none of Title VII's purposes. The opposite is true, however, for complaints such as the one in this case, or in Reed and Alexander, where the harassment, if it continued, would likely violate the law. Nothing in Breeden compels this Court to hold that such complaints are not protected. Accordingly, we urge the Court to limit the decision to situations like those in Breeden –- but not present here -- where the complained-of conduct is so fleeting and innocuous that it would be unreasonable to believe that it would violate Title VII even if repeated. See Breeden, 532 U.S. at 271 ("the single incident recounted above").<7> This Court's decision in Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000), also indicates that the Court believes that plaintiffs who complain appropriately about offensive sexual remarks before they rise to the level of an actionable hostile work environment may be protected from retaliation. The harassing conduct in Cruz was comparable to that in this case: the plaintiff's male coworker commented on her nipples and called her a "‘f___ing cunt.'" Id. at 564. Plaintiff's response there, however, was quite different: she slapped her coworker. Id. This Court had no trouble finding that this opposition was not protected. See id. at 566 ("Slapping one's harasser . . . is not a protected activity."). As an alternative, the Court recommended "leaving the room and reporting the incident to Human Resources" (id. at 567) – essentially just what Watson did in this case. This strongly indicates that, as the district court and jury concluded, Watson's conduct in complaining to her supervisor, in accordance with ESS's policy, was protected "opposition" within the meaning of Title VII. Since ESS's contrary position would undermine the purposes of the provision as well as Title VII itself, we urge this Court to affirm the district court's decision and hold that § 704(a)'s protections extend to plaintiffs such as Watson who complain about harassment that, if repeated often enough, would violate the statute. II. THE JURY REASONABLY FOUND THAT WATSON MITIGATED HER DAMAGES BY STARTING A PHOTOGRAPHY BUSINESS AFTER A LONG AND FRUITLESS SEARCH FOR COMPARABLE WORK IN THE FASHION INDUSTRY. The district court properly upheld the jury's finding that Watson mitigated her damages by opting to pursue a career in photography. Before starting her business, Watson diligently sought comparable work in the fashion industry for many months after her retaliatory discharge. ESS proffered no evidence that her eventual decision to change careers was not a reasonable method of mitigating damages. An "employee discharged in violation of Title VII has an obligation to attempt to mitigate her damages by using ‘reasonable diligence in finding other suitable employment.'" Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 695 (2d Cir. 1998) (quoting Ford Motor Co., 458 U.S. at 231). "This obligation is not onerous" -– she need not "be successful," "accept a demotion" or "go into another line of work" (id. at 695-96) – although circumstances may justify a decision to do so anyway. To reduce her claim for damages, the employer "has the burden of demonstrating that she has failed to attempt to mitigate." Id. That burden may be met by establishing that "suitable work existed," and "the employee did not make reasonable efforts to obtain it." Id. The question of "whether an employee has made reasonably diligent efforts is one of fact for the jury." Id. at 696. Applying that standard in this case, the jury reasonably found that Watson adequately mitigated her damages after ESS discharged her, and the district court properly rejected defendant's arguments to the contrary. Order at 38-39. Watson testified, without contradiction, that she repeatedly called headhunters, checked ads in trade journals and other publications and pursued other leads for over a year. It is undisputed that, despite these efforts, she was never offered an equivalent position, at a comparable rate of pay. ESS argues, however, that Watson is not entitled to relief because she ultimately "abandoned" her search for comparable employment to pursue a career as a professional photographer. Def.Br. 46. While it is not entirely clear, the company appears to argue that, at most, Watson should have opened a business in the fashion industry, rather than in photography. "Switch[ing] industries," "chang[ing] her lifestyle" and "embark[ing] on a speculative career as a portrait photographer" did not constitute adequate mitigation. Id. This argument fails as a matter of law and logic.<8> The "ultimate question" with respect to mitigation is whether a plaintiff "acted reasonably in attempting to gain other employment or in rejecting proffered employment." Hawkins, 163 F.3d at 695-96. This same standard extends to self-employment. A "self-employed person is ‘employed' for purposes of mitigating damages if establishing a business of his own was a reasonable alternative to finding other comparable employment." Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005 (3d Cir. 1988); see also Hawkins, 163 F.3d at 695-96 ("Self- employment, if it is undertaken in good faith and is a reasonable alternative to seeking other comparable employment, may be considered permissible mitigation."). There is very little caselaw involving Title VII plaintiffs who, like Watson, start a business in an unrelated field after searching without success for comparable employment in their own fields. Cf. NLRB v. Ryder Sys., 983 F.2d 705, 715 (6th Cir. 1993) (upholding mitigation finding where truck driver turned to painting, stating "backpay claimant is under no duty to remain in the same industry as that from which he was discharged"); Dailey v. Societe Generale, 108 F.3d 451, 456- 57 (2d Cir. 1997) (upholding mitigation finding where banker returned to school after 6-month job search, noting "central question" is whether plaintiff's "furtherance of [her] education is inconsistent with [her] responsibility to use reasonable diligence in finding other suitable employment"). More commonly, the plaintiff's business has been an outgrowth of her previous employment. See, e.g., Smith v. Great American Restaurants, 969 F.2d 430, 438-39 (7th Cir. 1992) (discharged restaurant manager opened restaurant). Nevertheless, in our view, the district court here sensibly concluded that Watson acted reasonably even though her new career was outside the fashion industry. As the Carden Court stated, the "threshold question" is whether plaintiff's decision to start a business was a reasonable method of mitigating damages, and it is defendant's burden to show that it was not. See 850 F.2d at 1005. Here, ESS failed to show not only that Watson likely would have found comparable work in the fashion industry had she continued searching but also that she would have achieved success more quickly opening a fashion-related business. Nor does the company explain why a change in fields should matter. The jury thus could find that ESS simply failed to carry its burden. To support its argument that Watson failed to mitigate, ESS relies primarily on Hansard v. Pepsi- Cola Metro Bottling Co., 865 F.2d 1461, 1468-69 (5th Cir. 1989), and Miller v. SwissRe Holding, 771 F. Supp. 56, 60-62 (S.D.N.Y. 1991). This reliance is misplaced. Hansard and Miller make no sweeping pronouncements concerning mitigation but simply hold that the respective plaintiffs each failed diligently to pursue the businesses they started. See Hansard, 865 F.2d at 1468 (noting that while a "decision to become self-employed alone does not indicate a lack of reasonable diligence," Hansard's efforts -– merely continuing a casual part-time flea market business -- were "simply insufficient"); Miller, 771 F. Supp. at 60-61 (describing plaintiff's venture as "a disaster, lacking capital, planning and energy"). ESS points to nothing in this record that suggests that Watson's efforts were similarly lacking. Followed to its logical conclusion, ESS's approach would mean that, even if an employee did not pass up any viable opportunities for comparable employment, her employer should be off the hook and she should not be made whole merely because she made an entirely rational decision to open a business in an unrelated field. However, the Supreme Court long ago held that Title VII victims should be denied relief "only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). ESS's approach would frustrate both of these central purposes. Accordingly, we urge this Court to hold instead, consistent with the decision below, that Watson's decision to start a photography business had no effect on her entitlement to relief. CONCLUSION For the foregoing reasons, this Court should affirm the district court's denial of defendant's new trial motion, upholding the jury findings that plaintiff engaged in protected activity by complaining about her coworker's sexually explicit remarks and adequately mitigated her damages by becoming a professional photographer. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS 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 5,665 words, from the Statement of Interest to 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: _________________________ CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae were sent June 12, 2006, by first-class mail, postage prepaid, to: Geri S. Krauss Maranda E. Fritz HINSHAW & CULBERTSON, LLP 780 Third Avenue New York, NY 10017 and Roger P. McTiernan Suzanne M. Halbardier Laurel A. Wedinger BARRY, McTIERNAN & MOORE 2 Rector Street, 14th Floor New York, NY 10006 A copy of the PDF version of the brief was also emailed to each party's counsel, pursuant to Local Rule 32(a)(1)(H). ________________________________ Barbara L. Sloan *************************************************************** <> <1> The Commission takes no position on other issues raised in this appeal. <2> Citations are the district court’s 9/6/2005 Order and Plaintiff’s Exhibit 2(“PEx2”) (harassment policy). <3> The district court found Watson to be an “eminently credible witness” whereas defendant’s witnesses’ testimony was “inconsistent, deliberately vague and not particularly believable.” Order at 4. <4> Although it did not make this objection below, ESS argues, without citation, that the court should not have instructed the jury that it “need not find that Gaby Sutton’s conduct was, in fact, unlawful” without adding that the conduct must meet “some minimum threshold . . . before a belief would be considered reasonable.” Def.Br. 17-18. A similar argument was rejected in Fine v. Ryan Int’l Airlines, 305 F.3d 746, 753 (7th Cir. 2002), which held that the phrase “reasonably believed in good faith” was not likely to confuse jury. <5> See also EEOC v. Navy Federal Credit Union, 424 F.3d 397, 406-09 (4th Cir. 2005) (reversing summary judgment on § 704(a) claim based on evidence that supervisor refused to participate in scheme to terminate subordinate for discriminatory reasons and then cover up those reasons); Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1194-95 (8th Cir. 2001) (affirming judgment for plaintiff who, believing that ADA and company manual required that she accommodate disabled employee, refused to stop providing accommodation and was fired; court stated: “[a] manager may be shown to have engaged in protected conduct if she refused to implement a discriminatory policy or took some action against it”); Dailey v. Park Place Airport Parking, No. 4:99CV0403, 2000 WL 641203, *4 (E.D. Mo. May 16, 2000) (denying summary judgment where plaintiff was fired after refusing to follow directive not to hire any more African-American employees); cf. Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1567-70 (2d Cir. 1989) (finding potential ADEA violation where plaintiff was fired after writing, obtaining approval for and then refusing to destroy vacancy announcement specifying job requirements that plaintiff considered discriminatory); Goos v. National Ass’n of Realtors, 715 F. Supp. 2, 3-4 (D.D.C. 1989) (applying Title VII standards to local law claim, denying summary judgment to employer where plaintiff was fired after refusing to fire employee on what she viewed as racial grounds). <6> A divided panel of the Fourth Circuit recently held that, to be protected, a plaintiff “must have a reasonably objective belief that [the opposed conduct] will continue or will be repeated.” Jordan v. Alternative Resources Corp., 447 F.3 324, 332 (4th Cir. 2006); see also id. at 327 (coworker, on seeing TV report that local snipers had been captured, opined: “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f__k them”). The dissent, in contrast, disagreed that an employee “lacks Title VII protection for reporting racially charged conduct unless he has a reasonably objective belief that it will continue or will be repeated.” Id. at 340 (King, J., dissenting). Rather, the dissent reasoned, “[w]hen the cumulative nature of a hostile work environment is considered, it is clear that employees are protected under Title VII from employer retaliation if they oppose conduct that, if repeated, could amount to a hostile work environment.” Id. at 341. While the Jordan majority rejected the standard the Commission proposes, the facts in this case arguably satisfy the Jordan majority’s standard since Gaby had made more than one sexually offensive comment and the jury could have found that he would have continued doing so had Watson not stepped forward and complained. <7> ESS also notes two district court decisions that cite Breeden. See Def.Br. 14-15 (citing Holmes v. Long I. R.R. Co., 2001 WL 797951, at *6 (E.D.N.Y. June 4, 2001), and Spadola v. N.Y. City Transit Auth., 242 F. Supp.2d 284, 291 (S.D.N.Y. 2003)). The complained-of conduct in both cases, however, was innocuous enough that, even under our interpretation of Breeden, the plaintiffs’ complaints would not constitute protected opposition. <8> ESS also argues that plaintiff “should not be entitled to any damages after her admitted abandonment of a search for comparable employment,” citing Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir. 1998). Def.Br. 45 (emphasis in defendant’s brief). Kirsch is inapt, however, because, unlike Watson, the plaintiff there retired.