No. 08-3337 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________________________________________________ JULIE GALLAGHER, Plaintiff/Appellant, v. C.H. ROBINSON WORDWIDE, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio No. 06-02443 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DONNA J. BRUSOSKI Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., N.W. Washington, D.C. 20507 (202) 663-7049 donna.brususki@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision . . . . . . . . . . . . . . . . . . . . .9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 I. THE ALLEGED SEXUAL HARASSMENT CREATED A JURY QUESTION REGARDING WHETHER IT WAS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF GALLAGHER'S EMPLOYMENT AND CREATE A HOSTILE OR ABUSIVE WORKING ENVIRONMENT BASED ON SEX . . . . . . . . . . . . . . . . .12 II. THERE WAS SUFFICIENT EVIDENCE TO CREATE A JURY QUESTION ON THE ISSUE OF EMPLOYER LIABILITY . . . . . . . . . . . . . . . 26 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abeita v. Transamerican Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) . . .16, 19 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) . . . . . . 19, 21 Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 22 Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir. 1997) . . . . . . . . . 20 Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959 (8th Cir. 1993) . 21 Carlson et al. v. C.H. Robinson Worldwide, Inc., 2005 U.S. Dist. LEXIS 5674 (D. Minn. March 31, 2005) . . . . . . . . . . . . . . . . . . . . . . . . 8 Clark v. United Parcel Services, Inc., 400 F.3d 341 (6th Cir. 2005) . . . . . 28 Connor v. Schrader-Bridgeport International, Inc., 227 F.3d 179 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir. 1998) . . . . . . . . .25 Davis v. Team Electric Co., 520 F.3d 1080 (9th Cir. 2008) . . . . . . . . . 16 EEOC v. PVNF, LLC, 487 F.3d 790 (10th Cir. 2007) . . . . . . . . . . . . 14, 17 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . 27 Fenton v. HiSAN, Inc., 174 F.3d 827 (6th Cir. 1999) . . . . . . . . . . . . 27 Gallagher v. C.H. Robinson Worldwide, Inc., 2008 WL 471693 (N.D. Ohio February 19, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999) . . . . . . . . . . . 9, 11, 26 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . 12, 25 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) . . . . . . . . 26 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) . . . . . . . . . . . 20 Hicks v. Gates Rubber, 833 F.2d 1406 (10th Cir. 1987) . . . . . . . . . . . . 19 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) . . . . . . . . . 19, 20 Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006) . . . . . . . . . . 17 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . .18, 20 O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) . . . . . . . . .19 Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) . . . . . 13, 18 Patane v. Clark, 508 F.3d 106 (2d Cir. 2007) . . . . . . . . . . . . . . . . .21 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) . . . . . . . . . . . 23 Reeves v. C.H. Robinson Worldwide, Inc., ___ F.3d ___, 2008 WL 1848882 (11th Cir. April 28, 2008) . . . . . . . . . . . . . . . . . . . . . 14, 21, 22 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) . . . . . . . 20 Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999) . . . . . . passim Wolak v. Spucci, 217 F.3d 157 (2d Cir. 2000) . . . . . . . . . . . . . . . . .21 STATUTES & REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq . . . . . 1 42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 18 29 C.F.R. § 1604.11(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 RULES Fed. R. App. P. 29(a) . . . . . . . . .2 Fed. R. App. P. 29(d) . . . . . . . . 30 Fed. R. App. P. 32(a)(5) . . . . . . 30 Fed. R. App. P. 32(a)(6) . . . . . . 30 Fed. R. App. P. 32(a)(7)(B) . . . . . 30 No. 08-3337 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________________________________________________ JULIE GALLAGHER, Plaintiff/Appellant, v. C.H. ROBINSON WORDWIDE, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Ohio No. 06-02443 _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL _______________________________________________________ STATEMENT OF INTEREST<1> The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents important issues concerning the proper analysis of a Title VII claim that a plaintiff was subjected to a hostile work environment based on her sex, and the standards applicable to determining the employer's liability for the alleged harassment. It also raises questions regarding the appropriate role of the district court in deciding whether alleged harassment is sufficiently severe or pervasive to survive a defendant's motion for summary judgment. Because resolution of these issues will affect the EEOC's enforcement of Title VII, the Commission offers its views in support of reversal to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF ISSUES 1. Whether a reasonable jury could find that the conduct and comments plaintiff complained of-although not all were directed at her-were objectively sufficiently severe or pervasive to alter her working conditions based on her sex. 2. Whether a reasonable jury could find that the employer is liable under Title VII for the severe or pervasive sexual harassment of plaintiff by her coworkers, where it knew of the harassment and did nothing effective to stop it. STATEMENT OF THE CASE A. Statement of the Facts C.H. Robinson Worldwide, Inc. (CHRW) is a transportation logistics company with branch offices across the United States. (R.25-13, Englebretson Aff.¶ 3)<2> Julie Gallagher worked as a transportation sales representative at the Cleveland office for four months, from September 2002 until she resigned in January 2003. (R.25-2, Gallagher Dep. at 6-7). Of the transportation sales representatives employed in the Cleveland office during Gallagher's tenure, three were female, including Gallagher, and 18 were male. (R.28-2, Gallagher Decl. ¶ 2). Greg Quast was the manager of the Cleveland branch office throughout Gallagher's employment, and he continued to hold that position until he was fired in June 2006. (R.25-12, Quast Dep. at 11-12). Each sales representative worked in a work station cubicle in an open office. (R.25-12, Quast Dep. at 14-16). Short dividers between the cubicles allowed employees to freely communicate with one another, but provided little privacy. (R.25-2, Gallagher Dep. at 26, 91-92, 176-77). Due to the open physical design of the office, employees could easily see each other's desks and computer monitors and hear each other's telephone and other conversations (id. at 25-30, 43); Gallagher testified that while sitting at her desk and when walking to the printer or elsewhere in the office, it was difficult to avoid seeing other employees' desks and computer monitors and hearing their conversations. (Id. at 25-26, 29-30, 208). Although Quast had a private office, he never used it and, instead, always sat out in the open office space with the sales representatives. (Id. at 27, 41, 177-78). Gallagher testified in deposition that from the beginning of her employment with CHRW, she was exposed on a daily basis to derogatory, gender-specific language by her branch manger and male coworkers who referred to women as "bitches," "sluts," "whores," "dykes," and "cunts." (R.25-2, Gallagher Dep. at 44, 88, 210-16; see also R.25-7, Derryberry Dep. at 53-54 (testifying that he heard the word "bitch" used in the office a couple times a day, and "slut" and "whore" probably once a week). Some of this language was directed at Gallagher and female coworkers, some at customers, some at female truck drivers, and some appears to have been in general usage by male employees. (R.25-2, Gallagher Dep. at 44-45, 88, 93, 210-16). On a daily basis, and in the presence of manager Quast, male coworkers also talked about women's breasts and genitalia, and they told offensive, sexual jokes, many of which had something to do with male ejaculation (e.g., "snowballing" and "angry dragon")<3> or anal sex. (Id. at 203-09; R.28-2, Gallagher Decl. ¶¶ 19, 23). Also on a regular basis, male employees brought into the office and shared with each other photographs of their naked girlfriends or dates engaged in sexual acts, and they graphically discussed their sexual affairs and fantasies, various sex acts and positions, women's bodies, and their visits to strip clubs. (R.25-2, Gallagher Dep. at 19, 22-25, 43, 203-05, 211; R. 28-2, Gallagher Decl. ¶¶ 19, 20). Along with the photographs of their naked female friends, Gallagher was also exposed to pornographic images in the magazines male coworkers brought into the office and images of naked women on their computer monitors, and offensive email, including cartoons,<4> of a sexual nature. (R.25-2, Gallagher Dep. at 116-19, 211-14, 220-22). Gallagher could not avoid hearing the derogatory comments and sexual discussions and jokes, or seeing the graphic sexual images in the office, due to the open office configuration and the loud voices in which the men spoke. (Id. at 25-26, 203-09).<5> In addition, Gallagher testified that, as a group, her male coworkers were "crude" to women in the office and, except for Angela Sarris, the women did not "take them on" because they were afraid of the men. (Id. at 162-64). Gallagher further testified that coworkers Starosto, Rodgers, and Liehr treated her with hostility by attempting physically to block her way as she tried to pass their desks to retrieve documents from office printers, for example, by moving their chairs or putting their legs into the walkways, which she could not pass through until they moved out of her way. (Id. at 107-110, 207-09). Gallagher also offered evidence from five other female former employees who provided details, which supported her own, of the sexually hostile or offensive work environment they endured at CHRW's Cleveland branch, and of Quast's knowledge of this environment during his tenure as branch manager. (R.28-4, Ex. Q (Angela Oakley), Ex. R (Connie Shew), Ex. S (Katherine Phillips), Ex. T (Jessica Gorog), Ex. U (Mary Bunce)). Gallagher testified that she complained to Quast about the sexually offensive office environment, starting during the first week and a half of her employment. (R.25-2, Gallagher Dep. at 32, 47; R.28-2, Gallagher Decl. 29).<6> Gallagher stated that she tried to speak to Quast privately, but this was difficult to do because he sat in the cubicles with the employees and did not want to go into his office. (R.25-2, Gallagher Dep. at 40-41). Early in her employment, Gallagher asked to be moved to a different part of the office, telling Quast that it was "very offensive sitting here," but Quast responded that she could not move "due to the zones." (Id. at 209). When she complained about specific offensive activity, Quast responded by yelling across the office to the coworker(s) engaging in offensive conduct, telling them to stop talking about sex because they were bothering Gallagher. (Id. at 41, 201). This further embarrassed Gallagher and caused her male coworkers to ridicule her. For example, Bryan Starosto called Gallagher a "bitch" on several occasions after she complained about his sexual jokes or pornographic magazines and the photographs of his naked girlfriend. (Id. at 210-12). As the most junior sales representative, Gallagher was required to work on Saturdays (when Quast was not there), and on those occasions, she was the only female in the office. (Id. at 23). It was common for male coworkers who used a nearby gym to come into the office on Saturdays without wearing shirts. (Id. at 22). On one Saturday during Gallagher's first month at CHRW, three male coworkers (Starosto, Rodgers, and Derryberry) came into the office after using the gym, and David Derryberry was naked except for a towel. (Id. at 19-21). Derryberry sat on a desk near Gallagher, revealing his naked thigh, and joked to her that he was "commando" (meaning he was not wearing underwear). (Id. at 19- 20). Gallagher was very offended and upset by this incident, and by the fact that the three men also discussed their anal sex practices in the office that day. (Id. at 20-24, 31). The next business day, Gallagher complained to Quast about this and other offensive sexual comments and jokes she had been exposed to in the workplace, but nothing changed. (Id. at 31-32, 35). In addition, in Quast's presence, male coworkers made "crude" comments and jokes about Gallagher's weight and the size of her breasts - for example, one "moo'ed" at Gallagher and referred to her as "a heifer [with] milking udders" (slip op. at 4; R.25-2, Gallagher Dep. at 101-02), and others joked that CHRW "covered two quotas" by hiring Gallagher: "the girl quota and the fat quota" (id. at 112-13). Also, after receiving an email regarding the Carlson class action against CHRW,<7> Quast and male employees openly referred to the women involved in that lawsuit as "sluts" and "whores" (id. at 60-61, 92-93); Quast also gave his employees a list of the women involved in the Carlson sexual harassment action, and warned his staff "to be careful when talking to the sluts on the phone" (id. at 171, 178-79). Gallagher also testified that she did not call CHRW's 800 number hotline regarding her complaints of sexual harassment because she feared retaliation (id. at 35, 179-80, 189, 195); branch manager Quast and male employees made fun of the hotline and called it the "waa-waa line" (id. at 36, 189-200), and a male coworker told her that the hotline was not really confidential and someone had been fired after complaining through that mechanism. (Id. at 35-36, 194-200, 246). She also testified that Quast told her and two female coworkers that getting married and having children "would not be conducive to [their] employment at C.H. Robinson." (Id. at 113-15, 164-66, 189). Gallagher testified that she was very upset by the sexually offensive work environment in the Cleveland office, which made it difficult for her to concentrate on her job, made her dread coming to work and caused her to leave everyday crying, and had the effect of making her feel humiliated, degraded, bullied, and ridiculed. (Id. at 37-41). As a result, on January 8, 2003, Gallagher resigned. (Id. at 53). Gallagher testified that when she resigned, she told Quast that because of the work environment, she could no longer work there and she would rather bag groceries or flip burgers to make ends meet than stay there. (Id. at 53-54). B. District Court's Decision The district court granted summary judgment for CHRW on Gallagher's sexual harassment claim. The court set out the standards to establish a sexually hostile environment under Sixth Circuit law, including that (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment; and (5) there is a basis for employer liability. Gallagher v. C.H. Robinson Worldwide, Inc., 2008 WL 471693, attached slip op. at 9 (N.D. Ohio February 19, 2008) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). The court observed that although Gallagher is a member of a protected class, "she has several problems with her prima facie case." Id. at 11. Finding the conduct Gallagher complained of at the Cleveland office was "unprofessional and inexcusable" (id.), the court stated that to establish the third prong of a sexual harassment claim, Gallagher had to show that it was "based on her sex, i.e., that the conduct occurred because she is a woman," which it concluded she did not do. Id. (citing Williams v. General Motors Corp., 187 F.3d 553, 656 [sic] (6th Cir. 1999)). The court emphasized that "[t]here is no evidence that anyone tried to discuss sexual topics with her or engage her in their discussions, sent her sexually explicit e-mails or asked her to look at sexually explicit photographs," and "[a]side from the few incidents of offensive conduct directed at Gallagher (the towel incident, the comment that she met the girl quota and the fat quota, and the reference to her by a male co-worker as a cow with milking udders), most of the alleged conduct occurred in an open forum in the presence of both men and women." Id. at 11-12. The court concluded that "'[i]t would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct.'" Id. at 12 (quoting Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 (11th Cir. 2007)). Next, the court found Gallagher failed to present sufficient evidence that the workplace conduct was "sufficiently objectively severe or pervasive" for her claim to survive summary judgment. Id. at 12. The court distinguished cases involving comments and behavior of male supervisors, emphasizing that "the alleged conduct about which Gallagher complains involved principally her co-workers, only a few incidents of offensive conduct were directed towards her, and the conduct did not involve any inappropriate touching." Id. The court characterized "the totality of circumstances" to which Gallagher was subjected as involving "frequent use of crude language, ... occasional instances of offensive e-mails and pornographic material to which [she] was not intentionally exposed, and ... few instances of offensive conduct directed at [her]." Id. at 13. The court also concluded that "[e]ven if Gallagher could show that the alleged conduct was sufficiently objectively severe or pervasive to survive summary judgment, her claims would still fail because she has failed to present any evidence that the harassment unreasonably interfered with her work performance." Id. at 13 (citing Hafford, 183 F.3d at 512). In support of this conclusion, the court pointed to Gallagher's testimony that her work performance at CHRW was average to above-average, she met her work quotas, no one complained about or counseled her for performance problems, and she sought promotion to zone leader after only two or three months with CHRW. The court found that the lack of evidence on this element "alone is fatal to Gallagher's case." Id. Further, the court concluded that Gallagher "failed to present sufficient evidence of employer liability." Id. (citing Hafford, 183 F.3d at 512). On this issue, the court emphasized that although CHRW offered employees many internal avenues through which to complain of sexual harassment, Gallagher "failed to avail herself of all avenues except one, i.e., complaining to Greg Quast," who she believed "could not 'handle' the Cleveland office." Id. at 14. The court faulted Gallagher for choosing "to deal with the problem by leaving the company for another, higher-paying job with her previous employer and only complain[ing] to upper management at CHRW after she resigned." Id. ARGUMENT I. THE ALLEGED SEXUAL HARASSMENT CREATED A JURY QUESTION REGARDING WHETHER IT WAS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF GALLAGHER'S EMPLOYMENT AND CREATE A HOSTILE OR ABUSIVE WORKING ENVIRONMENT BASED ON SEX. Title VII is violated when sexual harassment "is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Williams v. General Motors, Inc., 187 F.3d 553, 560 (6th Cir. 1999). Whether harassment is sufficiently severe or pervasive to alter the victim's working conditions "can be determined only by looking at all the circumstances." Williams, 187 F.3d at 562 (quoting Harris, 510 U.S. at 23). The Supreme Court has explained that this inquiry "requires careful consideration of the social context in which particular behavior occurs and is experienced," since the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words or the physical acts performed." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998). Thus, this Court has emphasized that "[t]his totality-of-circumstances examination should be viewed as the most basic tenet of the hostile-work-environment cause of action." Williams, 187 F.3d at 563. A. Under the totality-of-the-circumstances standard, the alleged harassment was sufficiently severe or pervasive. Contrary to the directive of the Supreme Court and this Court to consider all of the circumstances, the district court here "disaggregated" the incidents of sexual harassment Gallagher asserted, which "robbed the[m] of their cumulative effect." Williams, 187 F.3d at 562. As this Court has explained, "the issue is not whether each incident of harassment standing alone is sufficient to sustain the cause of action in a hostile environment case, but whether - taken together - the reported incidents make out such a case." Id. at 562 (emphasis in original). For this reason, this Court cautioned that "courts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility." Id. at 563 (cautioning against conducting separate analyses based on the identity of the harasser except in considering employer liability) (emphasis added). The district court failed to adhere to this standard because it did not evaluate the environment as a whole. For example, the court separated out the incidents that were "directed at" Gallagher - "the towel incident, the comment that she met the girl quota and the fat quota, and the reference to her ... as a cow with milking udders" - from those incidents to which she was exposed in the presence of both men and women - such as the gender-derogatory language her male coworkers used when conducting business, talking to each other, and referring to third persons, the pornography visible on computer screens and in magazines in the workplace, and some sexually oriented email. Slip op. at 11. The court erred in analyzing the conduct directed at Gallagher separately, but, even more significantly, as discussed below, in ignoring all of the conduct that was not specifically directed at her. Furthermore, in considering conduct directed at Gallagher, the court ignored some of the evidence. For example, Gallagher testified not only that gender- derogatory language was used on a daily basis in the office, but also that male coworkers directly called Gallagher herself a "bitch," especially when she complained about their use of offensive, gender-derogatory language. See Reeves v. C.H. Robinson Worldwide, Inc., ___F.3d___, 2008 WL 1848882, *4 (11th Cir. Apr. 28, 2008) ("'sex specific' words such as 'bitch,' 'whore,' and 'cunt' . . . more degrading to women than men"); EEOC v. PVNF, LLC, 487 F.3d 790, 799-800 (10th Cir. 2007) (characterizing the word "bitch" as a "sexual epithet," which courts have found "intensely degrading"). The court also failed to address Gallagher's testimony that she and other female coworkers were warned by their boss that getting married and having children would harm their careers with CHRW, and evidence that male coworkers blocked Gallagher's path as she tried to walk in the office.<8> The court concluded that the incidents it chose to acknowledge that were directed at Gallagher were not sufficiently severe or pervasive to support her claim. However, the court's refusal to consider all of the conduct and its impact on Gallagher's working environment was erroneous. In addition, the court's characterization of the individual acts of harassment, taken out of the context of the entire work environment, led it to minimize the impact of the conduct Gallagher described. For example, the court's reference to "the towel incident" hardly captures the reality of Gallagher's total experience in her workplace even on the day of that incident. The parties do not dispute the facts surrounding this incident: Gallagher was the only woman working in the office one Saturday when three male coworkers arrived, one of whom was naked except for a towel; he announced to Gallagher that he was naked, and he sat on a desk near her exposing his naked thigh to her. But beyond those undisputed facts, the court failed to address Gallagher's testimony that on the same day, her three male coworkers discussed their anal sex practices in conversations she could not avoid hearing, and that she complained to Quast the next business day but he failed to act on her complaint. To characterize these events simply as "the towel incident" robs this evidence of its significance in showing how her coworkers' conduct impacted Gallagher's work environment. Moreover, the court's ruling intruded into the jury's province. In considering defendant's motion for summary judgment, the question before the district court was not whether the court believed the conduct and comments Gallagher complained of were objectively sufficiently severe or pervasive to alter her working conditions based on her sex, but whether, viewing the evidence in the light most favorable to Gallagher, a reasonable jury could reach that conclusion. Abeita v. Transamerican Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998) (reversing summary judgment and holding that "we cannot say that plaintiff is unable to present sufficient evidence of a hostile environment" where district court discounted plaintiff's evidence that her boss, with whom she worked daily, made sexual comments about other women that were "commonplace," "ongoing," and "continuing;" ruling that this evidence can be considered in determining whether offensive conduct was severe or pervasive). As this Court has observed, "[w]hether conduct is severe or pervasive is 'quintessentially a question of fact.'" Jordan v. City of Cleveland, 464 F.3d 584, 598 (6th Cir. 2006) (internal citation omitted).<9> A jury should be permitted to determine the impact of this entire day's offensive conduct, particularly in the context of Gallagher's presence as the sole female in the workplace that Saturday, and in conjunction with all the other evidence of demeaning language and treatment of women that Gallagher offered. This Court should adhere to this fundamental principle and reverse the district court's summary judgment for CHRW. B. The harassment was based on sex whether or not it was directed at Gallagher. The district court deliberately focused only on conduct directed at Gallagher because it erroneously believed it had to ignore sexually offensive incidents that occurred in the presence of both men and women, such as the gender-based derogatory language male coworkers used; other verbal conduct, such as sexual slurs, comments about women's bodies, telling sexually related jokes, and boasting about sexual conquests; the pornography visible on computer screens and in magazines in the workplace, as well as the pictures of naked girlfriends; and some sexually oriented email. Slip op. at 11-13. The court concluded that because most of this conduct occurred in an "open forum" and was not directed at Gallagher, Gallagher had failed to show that the environment in which she worked was hostile "based on her sex." Id. at 11. The court took too narrow a view of how to establish that conduct is based on sex, and it also erred in discounting evidence of conduct not specifically targeting Gallagher. All of this evidence should be considered, by a jury, as part of the totality of the circumstances Gallagher experienced in the workplace. The issue in a hostile environment case is whether the plaintiff was subjected to discriminatory "conditions ... of employment, because of [her] ... sex" (42 USC § 2000e-2(a)(1)), not whether specific offensive conduct occurred because of the victim's sex. The Commission's Guidelines on Sexual Harassment provide that "verbal or physical conduct of a sexual nature constitute[s] sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a) (emphasis added); see Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986) (quoting 29 C.F.R. § 1604.11(a) with approval). The proper focus in a sexual harassment case thus is on whether the work environment was more hostile or abusive to the plaintiff because of her sex. Oncale, 523 U.S. at 81 (Title VII is violated where the work environment was objectively hostile, i.e, hostile to "a reasonable person in the plaintiff's position"). As the Supreme Court explained in Oncale, the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words or the physical acts performed." Id. at 82. Therefore, "[e]vidence of a general work atmosphere ... - as well as evidence of specific hostility toward the plaintiff - is an important factor in evaluating the claim." Hicks v. Gates Rubber, 833 F.2d 1406, 1415 (10th Cir. 1987). As this Court has explained, remarks that demean women generally are probative of a sexual harassment claim even if they do not demean any one woman in particular. Abeita, 159 F.3d at 251-52. The "accumulated effect" of incidents of "offensive comments directed at women" and other harassing conduct, "taken together, can constitute a hostile work environment." O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001); see also Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) ("'[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, discrimination analysis must concentrate not on individual incidents, but on the overall scenario.'") (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)). In this case, the district court lost sight of the overall scenario because it ignored the principle that harassing conduct that sexualizes the work environment to the detriment of all females is conduct based on sex. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (holding that a reasonable jury could find sex discrimination where harassment of women "relied on sexual epithets, offensive, explicit references to women's bodies and sexual conduct"). The Supreme Court has recognized that "'a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.'" Vinson, 477 U.S. at 66 (quoting Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982)). Similarly, the district court ignored the impact of gender-specific derogatory epithets on the working environment for women, discounting the offensive language simply because most of it was not directed at Gallagher herself. But this Court has repeatedly emphasized that "offensive comments need not be directed at a plaintiff in order to constitute conduct violating Title VII." Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (racial harassment case citing Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997), a sexual harassment case). Similarly, the Eleventh Circuit recently held that because of its "degrading nature," the use of "sex-specific profanity" in the workplace, including words such as "bitch," "whore," "slut," and "cunt," "satisfies the 'based-on' [sex] element in a sexual harassment case even when the language does not target the plaintiff." Reeves, 2008 WL 1848882, at *4 (internal quotation marks and citation omitted). In this case, daily use of derogatory gender-based epithets in the workplace, such as Gallagher experienced from male coworkers, as well as male coworkers' discussions of their sexual activities, viewing photographs of their nude female sex-partners, and pornography in magazines and on computers in the workplace could all "alter the 'status' of women [in the workplace] and is relevant to assessing the objective hostility of the environment." Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) ("mere presence of pornography in a workplace can alter the 'status' of women therein") (quoting Wolak v. Spucci, 217 F.3d 157, 160-61 (2d Cir. 2000)); see also Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 965 (8th Cir. 1993) (discussing power of "[v]ulgar and offensive epithets" to degrade women); Andrews, 895 F.2d at 1485-86 ("Obscene language and pornography quite possibly could be regarded as 'highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse.'") (internal citation omitted)). Although the court acknowledged the presence of pornography in the office, it downplayed evidence that male coworkers regularly brought into the office photographs of their naked female sex partners engaged in sex acts, and it ignored the effect such behavior would have on a reasonable victim. It also discounted the effect of the pornography it did acknowledge by characterizing Gallagher's exposure to it as "not intentional." Slip op. at 13. As this Court stated in Williams, 187 F.3d at 566, "the intent of the alleged harasser is irrelevant" in analyzing whether sufficient evidence was presented to show a hostile work environment. Whether Gallagher's coworkers meant for her to see the pictures or join their conversations about sexual exploits is not the point in analyzing whether their conduct had the effect of altering her working conditions. The district court erred in failing to allow a jury to consider such conduct in this case. The district court mistakenly assumed that harassing conduct that occurs in group settings somehow insulates an employer from Title VII liability, because, it reasoned "'[i]t would be paradoxical to permit a plaintiff to prevail on a claim of discrimination based on indiscriminate conduct.'" Slip op. at 12 (quoting Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 (11th Cir. 2007)). The court entirely missed the point that the Baldwin court was referring to generalized profanity, not gender-specific terminology, and that the court went on to say that gender-specific profanity including words such as "bitch," "tramp," and "slut" is degrading to women and may be considered "on the sexual harassment scales." Id. at 1302. The Eleventh Circuit recently reiterated that point in its decision reversing summary judgment for the employer in Reeves, 2008 WL 1848882, at *4 ("The language in the CHRW office included the 'sex specific' words 'bitch,' 'whore,' and 'cunt' that ... may be more degrading to women than men. ... Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature.") (emphasis added). Thus, even if men and women both are exposed to the same language and conduct, harassing conduct and comments that depict women in a degrading manner may satisfy the "based on sex" requirement when such behavior makes the work environment more hostile to a female than to her male coworkers precisely because she is a woman. In Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004), the Second Circuit specifically rejected the view that so-called "common exposure" of male and female employees to a sexually offensive work environment defeats a claim that sexual harassment of a female employee was because of her sex. As the Second Circuit explained, "[t]he mere fact that men and women are both exposed to the same offensive circumstances on the job site ... does not mean that, as a matter of law, their work conditions are necessarily equally harsh. The objective hostility of a work environment depends on the totality of the circumstances." Id. Similarly, in Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 332-33 (4th Cir. 2003), the en banc Fourth Circuit held that even though some men were offended by their male coworkers' sexual talk and activities, a reasonable jury could find that male workers in the production shop harassed the female plaintiff in sex-specific and derogatory terms so as to show that they were motivated by general hostility to the presence of women in the workplace. The Fourth Circuit found that, taken together, male coworkers' conduct that "consistently painted women in a sexually subservient and demeaning light [was] sufficiently severe or pervasive to alter the conditions of Ocheltree's employment and to create an abusive work environment." Id. at 333. In this case there is no evidence that men were offended by the language and behavior of which Gallagher complained, and thus there is no basis at all for the district court's conclusion that "indiscriminate" harassment cannot support a hostile environment claim. This Court should take this opportunity to join the Second and Fourth Circuits in explicitly rejecting the approach the district court adopted here, of discounting the impact of this conduct on Gallagher merely because it occurred in a mixed sex environment. C. Offensive conduct made it more difficult for Gallagher to do her job. The district court also erred in concluding that Gallagher could not survive summary judgment because she failed to present evidence that the harassment unreasonably interfered with her work performance. Slip op. at 13. In support of this conclusion, the court pointed to Gallagher's testimony that her work performance was average to above-average, that she met her work quotas, that no one complained or counseled her about poor performance, and that she sought a promotion to zone leader. Id. Both the Supreme Court and this Court have made plain that a sexual harassment plaintiff need not show that she was unable to do her job, or that her productivity suffered, as a result of the alleged harassment, as the district court supposed. "Instead of requiring a plaintiff to establish that her work was actually affected by the harassment, 'the adjudicator's inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance.'" Williams, 187 F.3d at 567 (quoting Harris, 510 U.S. at 25) (Ginsberg, J. concurring). Further, this Court has held that "[t]o show such interference, 'the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. The employee need only show that the harassment made it more difficult to do the job.'" Williams, 187 F.3d at 567 (quoting Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (6th Cir. 1998)) (emphasis added in Williams). Thus, the district court erred in concluding that Gallagher's testimony that she was able to perform her job was "fatal" to her claim. Slip op. at 13. Moreover, the court ignored Gallagher's testimony that the harassment made it more difficult to do her job, including that the sexually offensive workplace upset her very much, made it difficult to concentrate on her job, made her dread coming to work, and caused her to leave everyday crying. Under the proper legal standard, Gallagher presented a jury question on this issue. II. THERE WAS SUFFICIENT EVIDENCE TO CREATE A JURY QUESTION ON THE ISSUE OF EMPLOYER LIABILITY. The district court also erred in concluding that Gallagher did not offer sufficient evidence to present a jury question on the issue of employer liability. Slip op. at 13-14 & n.5. As the court recognized, the bulk (although not all) of the harassment Gallagher suffered was from coworkers, and she complained about that harassment to her branch manager Quast. In the context of coworker harassment, this Court has held "'an employer is liable if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.'" Hafford, 183 F.3d at 513 (citation omitted). Gallagher's complaints to her supervisor, Quast, are sufficient to establish that CHRW had knowledge of the harassment. In response, Quast failed to take any action on Gallagher's complaints, other than yelling across the office at her male coworkers, who then ridiculed and cursed at Gallagher. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008) (employer is liable for response to known coworker harassment that "'manifests indifference or unreasonableness in light of the facts'" (quoting Fenton v. HiSAN, Inc., 174 F.3d 827, 829 (6th Cir. 1999)). These facts are sufficient to establish employer liability in this case. In addition, the court erred in faulting Gallagher for failing to complain through the company's other internal complaint mechanisms and, instead, leaving the company. There are several problems with the court's reasoning. First, as explained above, in a case involving coworker harassment, the only issue is whether the employer had notice of and promptly remedied the harassment. There is no question that through its manager, Quast, CHRW had actual knowledge of, and did nothing to remedy, the harassment Gallagher complained of. Further, because the affirmative defense articulated by the Supreme Court does not apply in a coworker harassment case, there was no basis for the court to question whether Gallagher's actions - complaining to her manager during her four month tenure with CHRW - were reasonable. Faragher v. City of Boca Raton, 524 U.S. 775, 799-801 (1998) (the Supreme Court declined to disturb the general agreement among circuits that a negligence standard governs employer liability for coworkers harassment). Moreover, even if the "reasonableness" of Gallagher's actions were at issue, the court did not take into account at summary judgment her testimony that a male coworker told her the company's "anonymous" hotline was not really confidential, and that someone who used it had been fired, both of which reflect on the adequacy of CHRW's remedial mechanism. Cf. Clark v. United Parcel Services, Inc., 400 F.3d 341, 350 (6th Cir. 2005) (observing that "[t]he effectiveness of an employer's sexual harassment policy depends upon the effectiveness of those who are designated to implement it," and "the supervisors at issue ... were among those designated to implement the policy;" ruling that summary judgment was inappropriate on the issue of whether UPS exercised reasonable care because "there is a real question as to whether the supervisors should have taken the first step towards prevention and correction by reporting these incidents" of harassment). Finally, Gallagher did not raise a constructive discharge claim. She did not allege that CHRW was legally responsible for her decision to quit. Thus, her departure from the company is irrelevant to the assessment of CHRW's liability for subjecting Gallagher to a hostile environment while she worked there. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ DONNA J. BRUSOSKI Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6240, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _________________________________ Donna J. Brusoski Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov Dated: May 30, 2008 CERTIFICATE OF SERVICE I, Donna J. Brusoski, certify that I filed an original and six copies of the foregoing brief with this Court this 30th day of May, 2008, by overnight delivery, postage pre-paid, and I served copies of this brief by overnight delivery, postage pre-paid, to the following counsel of record: Counsel for Plaintiff/Appellant: Douglas L. Micko Schaefer Law Firm 1700 U.S. Bank Plaza South 220 South 6th Street Minneapolis, MN 55402 (612) 341-1118 Bruce B. Elfvin Elfvin & Besser 4070 Mayfield Road Cleveland, OH 44121 (216) 382-2500 Counsel for Defendant/Appellee: Matthew S. Effland Ogletree, Deakins, Nash, Smoak & Stewart - Indianapolis 111 Monument Circle, Suite 4600 Indianapolis, IN 46204 (317) 916-2153 Bruce G. Hearey Ogletree, Deakins, Nash, Smoak & Stewart - Cleveland 127 Public Square, Suite 4130 Cleveland, OH 44114 (216) 357-4733 ________________________________ Donna J. Brusoski Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov *********************************************************************** <> <1> The Commission takes no position with respect to any other issue presented in this appeal. <2> Citations to the record are abbreviated "R." and refer to the district court docket entry number. Pincites refer to the internal pagination of the document (e.g., deposition transcript pages or affidavit pages or paragraphs). The Commission has not had access to documents that were filed under seal as attachments to R.28-1, Micko's Declaration. <3> Apparently these are slang terms for oral sex practices. <4> On one occasion, Gallagher received an email image of a man dressed as a scarecrow "mooning" the screen and another man with two pumpkins in place of his breasts. (R.25-3, Exh H (image), Exh I (10-16-02) discipline)). She spoke to Quast, and forwarded the email to Quast and her fiancé as an example of the inappropriate email she received in the office; Quast told her not to worry about it, but she was reprimanded for doing so. (R.25-2, Gallagher Dep. at 150-56; R.28-2, Gallagher Decl.¶ 18). <5> On one occasion, a female coworker, Angela Sarris, had a pornographic picture of a naked woman and man on her computer screen. Gallagher testified that she saw this and told Sarris it was crude. (R.25-2, Gallagher Dep. at 97-98, 117-18). Also, Sarris once called a male coworker "a fucking cockhead." (Id. at 92). Gallagher also testified that she witnessed angry exchanges during which coworkers Warren Liehr called Sarris a "slut" and Bryan Starosto called Sarris a "dumb fucking bitch." (Id. at 88). <6> Gallagher also complained to Quast that her male coworkers, and Angela Sarris on one occasion, drank alcohol in the office and smoked pot in the parking lot, and that male coworkers used racial and ethnic slurs in the office. (R.25-2, Gallagher Dep. at 82-87, 143-47, 197; R.28-2, Gallagher Decl. ¶ 24). <7> Gallagher's lawsuit is one of more than 50 individual actions that were filed against CHRW after a federal district court denied certification of a hostile environment sexual harassment class. See Carlson et al. v. C.H. Robinson Worldwide, Inc., 2005 U.S. Dist. LEXIS 5674 (D. Minn. March 31, 2005). <8> Further, the court ignored evidence that other women who previously worked for Quast in CHRW's Cleveland office were exposed to similar offensive workplace conduct and comments and were similarly offended by them. The court should have let a jury consider this evidence. <9> Other circuits also have concluded that the assessment of whether harassment is sufficiently severe or pervasive to alter a victim's working conditions, under the totality of the circumstances, is "quintessentially a question of fact for the jury." Connor v. Schrader-Bridgeport International, Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (internal quotation marks and citation omitted) (emphasis added); see also EEOC v. PVNF, LLC, 487 F.3d 790, 798 (10th Cir. 2007); Davis v. Team Electric Co., 520 F.3d 1080, 1089 (9th Cir. 2008).