Equal Employment Opportunity Commission v. R&R Ventures, Inc. 00-1702 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-1702 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. R&R VENTURES, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the District of Maryland ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF JURISDICTION 1 ISSUES PRESENTED 2 STATEMENT OF THE CASE A. Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decision 21 STATEMENT OF STANDARD OF REVIEW 21 SUMMARY OF ARGUMENT 22 ARGUMENT I. THIS ACTION IS BASED ON A TIMELY CHARGE OF DISCRIMINATION 24 II. THE EVIDENCE SUPPORTS A FINDING THAT FEMALE EMPLOYEES OF R&R VENTURES WERE SUBJECTED TO A HOSTILE WORK ENVIRONMENT IN VIOLATION OF TITLE VII AND THAT DEFENDANT IS LIABLE FOR THIS VIOLATION. 27 A. The Evidence is Sufficient to Support a Finding that Female Employees of the Severna Park Taco Bell Were Subject to a Sexually Hostile Work Environment in violation of Title VII. 27 B. Defendant Cannot Escape Liability for Wheeler's Harassment of His Female Subordinates. 37 III. THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO ESTABLISH A CAUSAL CONNECTION BETWEEN SCOTT'S AND POTTER'S COMPLAINTS OF HARASSMENT AND ADVERSE ACTIONS TAKEN AGAINST THEM BY R&R VENTURES. 45 CONCLUSION 50 REQUEST FOR ORAL ARGUMENT 50 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 22 Brown v. Perry, 184 F.3d 388 (4th Cir. 1999) 38, 39 Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) 23, 37, 38 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 38 EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976) 26 EEOC v. Hansa Products, Inc., 844 F.2d 191 (4th Cir. 1988) 24 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) 25 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 23, 37, 38, 40 Gilyard v. United States Doe, 2000 WL 265621 (4th Cir. Mar. 10, 2000) 46 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 28, 29, 30, 34, 35, 37 Hawkins v. Pepsico, Inc., 203 F.3d 274 (4th Cir. 2000) 37 Hopkins v. Baltimore Gas & Elec. Co., 77 F.2d 745 (4th Cir. 1996) 35-36 Ibrahim v. Holiday Inn, Inc., 1996 WL 199743 (N.D. Ill.) 34 Kubicko v. Ogden Logistics Serv., 181 F.3d 544 (4th Cir. 1999) 21, 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) 22 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) 27, 31, 39, 40 Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) 28, 36 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) 29 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) 28, 29, 30, 31, 36, 37, 39, 41 Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997) 34, 35 Tinsley v. First Union Nat'l Bank, 155 F.3d 435 (4th Cir. 1998) 46, 47, 49 Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000) 29, 41 Wilson v. Southern Nat'l Bank of North Carolina, Inc., 900 F. Supp. 803 (W.D.N.C. 1995) 32 STATUTES 28 U.S.C. § 1291 1 28 U.S.C. § 1331 1 42 U.S.C. § 12117(a) 1 42 U.S.C. § 1981a 1 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq. 2 42 U.S.C. § 2000e-3(a) 46 42 U.S.C. § 2000e-5(e) 24 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-1702 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. R&R VENTURES, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the District of Maryland ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331, 42 U.S.C. § 12117(a), and 42 U.S.C. § 1981a. Final judgment was entered on March 27, 2000. Joint Appendix Volume I ("I JA") 8. The Equal Employment Opportunity Commission filed a timely notice of appeal on May 24, 2000. R. 27.<1> This Court has jurisdiction under 28 U.S.C. § 1291. ISSUES PRESENTED 1. Whether this suit is based on a timely charge of discrimination. 2. Whether there is sufficient evidence to support a finding that Shelby Scott, Brandyn Potter, and other similarly situated female employees of the defendant were subjected to a sexually hostile work environment for which the defendant is liable. 3. Whether there is sufficient evidence to support a finding that Shelby Scott and Brandyn Potter were subjected to retaliation for complaining of sexual harassment. STATEMENT OF THE CASE 1. Course of Proceedings This is an appeal from a final judgment of the United States District Court for the District of Maryland dismissing this action to enforce Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. The Commission initiated this lawsuit on March 30, 1999, by filing a complaint alleging that defendant violated Title VII by subjecting female employees at one of its facilities to a sexually-hostile work environment and by retaliating against two employees for complaining about the harassment. I JA 9-13 (Complaint). Defendant filed a motion for summary judgment on February 10, 2000. R. 20. On March 27, the court granted defendant's motion and dismissed the action in its entirety. The court held that the charges on which the suit is based were untimely; that the evidence was insufficient to establish actionable sexual harassment; and that the plaintiff failed to establish a causal connection between the complaints of harassment and the challenged job actions. I JA 5-7. 2. Statement of Facts R&R Ventures operates a number of Taco Bell restaurants in Maryland, including one located in Severna Park. Edwin Wheeler managed the Severna Park Taco Bell from March 1996 until he was transferred to another Taco Bell in June 1997. II JA 972 (Wheeler Dep. at 58). He was terminated on July 23, 1997. II JA 1295 (Personnel Action Form). When Wheeler was assigned to manage the Severna Park Taco Bell, R&R Ventures's management knew that he had been convicted of the statutory rape of a 14-year-old girl who worked at a McDonald's restaurant that he managed a number of years earlier. II JA 947 (Wheeler Dep. at 33). There was evidence that, during his tenure at the Severna Park Taco Bell, Wheeler subjected young, female employees of the restaurant to sexual comments and jokes on a daily basis. See, e.g., I JA 695, 697, 704, 731, 732 (Scott Dep. at 132, 134, 141, 168, 169); I JA 453-54, 463-64, 562 (Potter Dep. at 31-32, 41-42, 140); II JA 1213-14 (Wright Dep. at 59-60). Wheeler's mistreatment of female employees was notorious. According to employee Michelle Wright, female employees complained about Wheeler "all the time" and there was a general understanding among the female employees that he was "inappropriate." II JA 1213-14, 1218, 1225-26, 1253-54 (Wright Dep. at 59-60, 64, 71-72, 99-100). Another employee at the Severna Park Taco Bell, Pedro McKee, recalled that "[a]ll the employees always talked about it. . . . Everybody in the Severna Park store knew about it." I JA 309 (McKee Dep. at 29). Shelby Scott testified that "[e]veryone saw Eddie make comments to everyone. Any of the managers were aware of it . . . . [T]hey were aware of what Eddie was doing." I JA 731 (Scott Dep. at 166). Wheeler treated female employees differently than male employees. I JA 694-95, 703 (Scott Dep. at 131-32, 140); II JA 1216-18 (Wright Dep. at 62-64). While Wheeler cursed at all the employees working under him (II JA 1016-17 (Wheeler Dep. at 102-03)), and verbally attacked both male and female employees (I JA 456-58 (Potter Dep. at 34-36)), he reserved inappropriate sexual comments for the female employees. II JA 1216 (Wright Dep. at 62). McKee testified that Wheeler tried to hug female employees. I JA 299 (McKee Dep. at 19). Scott testified that Wheeler "was different with the females. . . . He always flirted. He always would make comments. I know what I look like, and I felt that I didn't need someone to tell me." I JA 694-95 (Scott Dep. at 131-32). Male workers did not have the same complaints. I JA 305-06 (McKee Dep. 25-26). Wheeler also subjected young women employees to comments on the inferiority of women. McKee frequently witnessed Wheeler making demeaning comments to and about women; for example, Wheeler "used to say . . . all the time" that women were stupid compared to men. I JA 307-08 (McKee Dep. at 27-28). Brandyn Potter regularly heard complaints from other female employees that Wheeler made sexual comments and jokes to them, and that he verbally attacked them with profanity, derogatory remarks, and comments such as, "she's just a woman" or "women can't do things like that." I JA 453, 470, 473-75 (Potter Dep. at 31, 48, 51-53); II JA 1291 (EEOC Questionnaire). Several young women in particular were targets of Wheeler's harassment. In December 1994, Shelby Scott began her first job as a crew member<2> at the Taco Bell in Severna Park when she was fifteen. I JA 649-50, 722 (Scott Dep. at 86-87, 159). Scott worked weekends and evening shifts from December 1994 to June 1996 and from August to November 1996. I JA 650, 669-70 (Scott Dep. at 87, 106-07). After Wheeler became Scott's direct supervisor in March 1996, Wheeler began making sexual comments and jokes directed at Scott whenever Scott worked with him. I JA 695 (Scott Dep. at 132). For example, Wheeler told Scott "at least once a day" that when she bent over, she was "giving him a cheap thrill" and "it was usually followed by something else and every day it was different." I JA 697-98 (Scott Dep. at 134-35). Wheeler was "constantly, constantly making comments about my butt." I JA 695 (Scott Dep. at 132). Wheeler repeatedly asked Scott if she liked to be spanked and made "nasty disgusting guy jokes that they tell about girls." I JA 698 (Scott Dep. at 135). Wheeler also discussed sexual positions and his sexual experiences with Scott and other female employees. I JA 700-03, 732 (Scott Dep. at 137-39, 140, 169). McKee testified that Scott complained that Wheeler touched her and used to brush up against her. I JA 301 (McKee Dep. at 21). McKee advised her to call the EEOC. I JA 301 (McKee Dep. at 21). Scott complained to her mother, LaDonna Mooney, that Wheeler made sexual comments to her about her body. Mooney recalled that Wheeler had commented on Scott's breasts growing (I JA 396 (Mooney Dep. at 81)), and told her that she had a "ghetto booty." I JA 395 (Mooney Dep. at 80). Such comments were made in front of other employees. I JA 396 (Mooney Dep. at 81). Scott reported that Wheeler asked her if she was in a good mood because she had "gotten laid." I JA 395 (Mooney Dep. at 80). Scott also told her mother that Wheeler "encouraged the boys to be smutty to the girls" and there was no punishment for such activity. I JA 343 (Mooney Dep. at 28). Mooney also witnessed Wheeler's inappropriate behavior first-hand. Mooney often visited with Scott at work during her breaks or came to the Taco Bell in the evenings to eat dinner. I JA 337-38, 349 (Mooney Dep. at 22-23, 34). Mooney saw Wheeler touch another female employee's breast when he was adjusting her name tag. I JA 354 (Mooney Dep. at 39). Mooney "didn't like the way he looked at the girls." I JA 351 (Mooney Dep. at 36). As a teenager, Scott was particularly self-conscious about her body. I JA 711 (Scott Dep. at 148); I JA 396 (Mooney Dep. at 81). Scott's weight dropped from 185 pounds in the summer of 1995 to 119 pounds by the summer of 1996. I JA 790-91 (Scott Dep. at 227-28). As a result, Scott saw a doctor for treatment of the eating disorder bulimia from July to September 1996. I JA 612-13 (Scott Dep. at 49-50). Both Scott and her mother attribute Scott's eating disorder to Wheeler's abuse. I JA 788 (Scott Dep. at 225); I JA 386 (Mooney Dep. at 71). Scott testified that she felt awful about her body and wanted to lose weight so that no one would talk about it. I JA 788 (Scott Dep. at 225). She also testified that "no one had ever made me feel that bad before . . . . [H]e drew attention and made me embarrassed of my body . . . ." I JA 788 (Scott Dep. at 225). Scott attempted to change the appearance of her body because "I didn't want him to look." I JA 789 (Scott Dep. at 226). Wheeler's conduct was unwelcome and upsetting. I JA 702, 706, 788 (Scott Dep. at 139, 143, 225). Scott testified that Wheeler's comments about her body were "completely uncalled for" and that Wheeler appeared to enjoy making her upset. I JA 744, 745 (Scott Dep. at 181, 182). Wheeler's comments about sex offended Scott. I JA 694, 702 (Scott Dep. at 131, 139). She asked Wheeler not to discuss sex in front of her and the other female employees, I JA 702 (Scott Dep. at 139), and told him to leave her alone. I JA 695-96 (Scott Dep. at 132-33). However, Wheeler "did not know when to give up." I JA 705-06, 744 (Scott Dep. at 142-43, 181). Several of Scott's co-workers witnessed Wheeler's comments and saw Scott crying about him. I JA 729, 748, 752-53 (Scott Dep. at 166, 185, 189-90); II JA 1212, 1222, 1231-32 (Wright Dep. at 58, 68, 77-78). Scott resigned in June 1996 because of Wheeler's treatment of her. I JA 190 (Scott Dep. at 689). Scott returned to the Severna Park Taco Bell in August 1996, hoping that Wheeler would be different. I JA 718-19 (Scott Dep. at 155-56). This time, Wheeler's sexual comments were more frequent. I JA 722, 727 (Scott Dep. at 159, 164). Scott testified that "constantly, every single day, I'd hear something about how nice of a butt I had and how much guys would love to just spank me or how much I should try it." I JA 722 (Scott Dep. at 159). Wheeler made comments to Scott in front of customers and other employees, including other managers. I JA 729, 730-31, 733 (Scott Dep. at 166, 167-68, 170). Scott complained of the harassment to management. Scott testified that she "told every manager who was there . . . what was going on" after she returned to work in August 1996. I JA 747-48 (Scott Dep. at 184-85). When Scott resigned in June 1996, assistant manager Bill Farrell asked Scott why she was leaving. I JA 707 (Scott Dep. at 144). Scott told Farrell to watch the way Wheeler speaks to female employees and that Wheeler talked about sex all the time. I JA 707, 801 (Scott Dep. at 144, 238). Scott told assistant manager Mareia Waddy, I JA 725, 733, 735-36, 799-800 (Scott Dep. at 162, 170, 171, 172-73, 236-37); Farrell, I JA 732, 734, 800-01 (Scott Dep. at 169, 171, 237-38), and shift manager Mike McCarthy, I JA 732-33, 736, 799-800 (Scott Dep. at 169-70, 173, 236-37), about Wheeler's inappropriate behavior. Both Farrell and McCarthy acknowledged to Scott that they knew how Wheeler spoke to her. I JA 799 (Scott Dep. at 236). Scott's mother also attempted to intervene on her behalf. I JA 710-11, 738 (Scott Dep. at 147-48, 175). On one occasion, Scott and her mother spoke to Waddy outside the restaurant about Wheeler's sexual comments. I JA 759-60 (Scott Dep. at 196-197). Waddy responded that she knew about it and it needed to go higher than her because there was nothing she could do. I JA 761 (Scott Dep. at 198). Waddy indicated that she agreed with Mooney's plan to have Scott file a discrimination charge against Wheeler. I JA 402 (Mooney Dep. at 87). Mooney left several detailed messages for Mike Lee, who was an Area Manager and later became R&R's Director of Operations. I JA 345, 368, 370-78 (Mooney Dep. at 30, 53, 55-63); I JA 738 (Scott Dep. at 175). Lee's secretary told Mooney she had already given him the message when Mooney called the second time. I JA 374 (Mooney Dep. at 59). Lee did not return Mooney's calls. I JA 375-76 (Mooney Dep. at 60-61). Lee did not communicate with Mooney about Scott's complaints until after she had filed a charge with the EEOC. I JA 416-17 (Mooney Dep. at 101-02). After Mooney told Lee about Wheeler's sexual comments, Lee had his wife, also an employee of R&R Ventures, call five to six female employees and ask them if they had experienced harassment by Wheeler. I JA 149-50 (Lee Dep. at 71-72). These employees reported that he was "nasty" to them but did not complain of sexual harassment. I JA 151 (Lee Dep. at 73). Neither Lee nor his wife interviewed Scott about her experience with Wheeler. See I JA 153 (Lee Dep. at 75), nor did either interview Wheeler at that point. I JA 153 (Lee Dep. at 75). After Scott complained to the managers at the Severna Park store, she noticed that Wheeler "got a different attitude." I JA 747 (Scott Dep. at 184). On October 27, 1996, Wheeler screamed at Scott for coming in too early for her shift and reduced her to tears. I JA 734-35 (Scott Dep. at 171-72). As Scott was leaving, Waddy asked her what was wrong. Scott told Waddy, as Mike McCarthy stood next to her, that she could not take Wheeler's treatment any more. I JA 735-36 (Scott Dep. at 172-73). Waddy told Scott she could take the day off. I JA 736 (Scott Dep. at 173); I JA 403 (Mooney Dep. at 88). When she did, Wheeler suspended her for two weeks for failing to show up at her shift. I JA 736 (Scott Dep. at 173). Wheeler, who was in charge of scheduling crew members, never placed Scott back on the schedule. I JA 736 (Scott Dep. at 173); JA 400-01 (Mooney Dep. at 85-86). Scott called Mike Lee to see why she was not put back on the schedule, but he never returned her calls. I JA 738-39 (Scott Dep. at 175-76). Scott filed a charge of discrimination with the EEOC on February 10, 1997,<3> II JA 1264-65 (EEOC Charge), 106 days after her last day of employment and the last alleged act of discrimination against her. The Commission served notice of the charge on R&R Ventures on February 18, 1997. II JA 1266 (Notice of Charge). Michelle Wright witnessed Wheeler's abuse of Scott and other female employees and was herself one of Wheeler's victims during the same time period. Wright began her first job as a crew member at the Severna Park Taco Bell in March 1995 when she was fifteen years old, II JA 1165, 1167 (Wright Dep. at 11, 13), and worked there until August 1997. II JA 1239 (Wright Dep. at 85). She worked full-time during the summer and three to five shifts per week during the school year. II JA 1168, 1197 (Wright Dep. at 14, 43). As with Scott, Wheeler took an interest in Wright's figure. Wheeler asked Wright her pants size and discussed the number with another employee. II JA 1212-13 (Wright Dep. at 58-59). Wheeler's close attention to Wright's body made her uncomfortable. II JA 1213, 1223 (Wright Dep. at 59, 69). She testified that "[h]e was looking me up and down kind of, and it made me feel uncomfortable. . . . I didn't feel comfortable that he was looking at my body that closely . . . .[I]t wasn't the first time he'd done it. He did it to all the girls. You can see him looking . . . ." II JA 1223 (Wright Dep. at 69). Wheeler told Wright's boyfriend that "he had a lot to handle," which she interpreted as a reference "to the way I looked." II JA 1214 (Wright Dep. at 60). Wright's sister, Amanda, also worked at the same Taco Bell for a short period. II JA 1201 (Wright Dep. at 47). Amanda complained to Wright that Wheeler had asked her if she wanted him to "pick her wedgy." II JA 1211, 1220 (Wright Dep. at 57, 66). Wright "hated going to work" because of Wheeler. II JA 1237 (Wright Dep. at 83). Wright complained about Wheeler to a group of other female employees within earshot of Waddy, who commented that that was how Wheeler was. II JA 1235 (Wright Dep. at 81). Around the time Scott filed her EEOC Charge in February 1997, Brandyn Potter, who was then twenty years old, began to work at the Severna Park Taco Bell.<4> See I JA 429, 452 (Potter Dep. at 30). She worked full-time, I JA 1275-80 (Payroll Records), and Wheeler was her direct supervisor. I JA 451 (Potter Dep. at 29). Wheeler flirted with Potter, spoke of his sex life and bisexual girlfriend, asked Potter about her sex life, and made sexual comments and jokes almost every day. I JA 463, 562 (Potter Dep. at 41, 140). Wheeler complained to Potter about how long it had been since he had sex. I JA 463 (Potter Dep. at 41). After Potter told Wheeler that she did not want to hear these sexual comments, Wheeler became "vicious overnight." I JA 464 (Potter Dep. at 42). Wheeler commonly belittled Potter in front of others, told her she was stupid, and cursed at her on a daily basis. I JA 467-70 (Potter Dep. at 45-48). Potter testified that she was "an emotional wreck" and cried every morning because she had to go to work and see Wheeler, and left work every day in tears because of his attacks. I JA 468, 483 (Potter Dep. at 46, 61). Potter fielded complaints from other employees and related them to Wheeler as well as to Tammy Hartley and Mike McCarthy, the other managers at the store. I JA 452 (Potter Dep. at 30). Most of the complaints were about sexual comments and jokes that Wheeler had made. I JA 453-54 (Potter Dep. at 31-32). For example, Cassie Ruskus and Erin Campbell complained that Wheeler was "hitting on" them. I JA 455-56 (Potter Dep. at 33-34). Potter testified that, when she complained to Hartley about sexual comments Wheeler directed at her, Hartley told her that she was overreacting. I JA 485-86, 489 (Potter Dep. at 63-64, 67). Hartley told Wheeler that Potter had complained about him and Wheeler became even more hostile to Potter. I JA 485 (Potter Dep. at 63). According to Potter, it took her two weeks to get in touch with anyone in upper level management at R&R Ventures despite repeated attempts to get Lee's number. I JA 481-83, 521 (Potter Dep. at 59-61, 99). Potter testified that "there were no numbers posted to complain about Eddie Wheeler and to get to them. You had to ask Eddie because if you asked any of the other managers, they would say they don't have them, you would have to ask Eddie . . . ." I JA 480-81 (Potter Dep. at 58-59). While Potter was attempting to get in touch with Lee, she avoided going to work if she knew Wheeler was going to be there. I JA 483-84 (Potter Dep. at 61-62). If Wheeler was working Potter's shift when she called in, she said she could not come in. I JA 483 (Potter Dep. at 61). She testified that she was "absolutely petrified" and "terrified" of Wheeler. I JA 484, 561 (Potter Dep. at 62, 139) In June 1997, Potter complained to Mike Lee that Wheeler was making inappropriate comments that offended her and other female employees working there. I JA 471, 479, 532 (Potter Dep. at 49, 57, 110). Potter also relayed these concerns to district manager Dennis Heller. I JA 479 (Potter Dep. at 57). Lee's response was to transfer Potter to the Crofton Taco Bell temporarily to get her away from Wheeler and to "get him out of the entire situation." I JA 138, 191-92 (Lee Dep. at 60, 113-14). Heller testified that he did not want to lose Potter as an employee "because it's hard to keep good crew people at fast food." I JA 51-52, 73 (Heller Dep. at 34-35, 56). Lee told Potter to take a week off work before moving to the Crofton restaurant so she would not have to work with Wheeler. I JA 487 (Potter Dep. at 65). During her week off, Hartley called Potter at home and asked her why she was not coming in for her shift. I JA 488 (Potter Dep. at 66). Hartley asked if Potter had filed a complaint against Wheeler, and told her she would be fired if she did not come in. I JA 487 (Potter Dep. at 65). Potter testified that when she arrived at work, Wheeler screamed at her, yelling that she "had no fucking right to go to my boss and complain" and that she was a bitch. I JA 489 (Potter Dep. at 67). Potter left the store crying and shaking uncontrollably, went home, and collapsed on her front lawn. I JA 489-90 (Potter Dep. at 67-68). Potter testified that when her mother called R&R Ventures' district manager Dennis Heller to complain, Heller called Potter's mother a bitch, told her to go to hell, and hung up on her. I JA 491 (Potter Dep. at 69); I JA 59 (Heller Dep. at 42). Following that incident, Potter worked at the Crofton Taco Bell for a short period in June. I JA 493, 503 (Potter Dep. at 71, 81). Once Wheeler was removed from the Severna Park Taco Bell, Potter returned. I JA 494 (Potter Dep. at 72). Soon after she returned to Severna Park, her hours were reduced without explanation. I JA 496-98, 502-07 (Potter Dep. at 74-76, 80-85); II JA 1281-84 (Payroll Records). Potter initially took on two shifts waitressing at another restaurant to make up her lost income, I JA 506-07 (Potter Dep. at 84-86), and then resigned from Taco Bell on July 9, 1997. II JA 1288 (Personnel Action Form). Heller asserted that Potter's hours were reduced because she was undependable. I JA 60-63 (Heller Dep. at 43-46). During the investigation of Scott's charge, the EEOC contacted Potter and learned details of her allegations of harassment by Wheeler. II JA 1289-92 (EEOC Letter and Questionnaire). Thereafter, Potter filed a charge with the EEOC. Her charge is stamped as received on June 12, 1998.<5> II JA 1267. The Commission served the Notice of Charge of Discrimination on June 22, 1998. II JA 1268 (Notice of Charge). R&R Ventures fired Wheeler on July 23, 1997. II JA 1295 (Personnel Action Form). Heller testified that Wheeler was fired because of poor job performance at the Crofton Taco Bell. See I JA 76 (Heller Dep. at 59). Both Lee and Wheeler testified that Wheeler was fired because he was working at McDonald's at the same time and it was a conflict of interest. See I JA 139-40 (Lee Dep. at 61-62); II JA 973-74 (Wheeler Dep. at 59-60). R&R Ventures has a written sexual harassment policy. I JA 98-99 (Lee Dep. at 20-21); II JA 1263 (Policy). Lee stated that the policy was adopted in 1990 or 1991 and was posted on an employee bulletin board and part an employee handbook available in the office of each Taco Bell. I JA 99, 107, 190 (Lee Dep. at 21, 29, 112). However, the victims of Wheeler's harassment did not recall seeing the policy. I JA 668 (Scott Dep. at 105); II JA 1221 (Wright Dep. at 67); I JA 518-19 (Potter Dep. at 96-97). The policy contains no names or numbers to contact if an employee is harassed. II JA 1263 (Policy); I JA 104 (Lee Dep. at 26). Although the policy directs employees to report sexual harassment to "their immediate supervisor or above," II JA 1263 (Policy), there is no organizational chart posted informing employees of the identity of individuals "above" Wheeler at R&R Ventures. I JA 105 (Lee Dep. at 27). The policy does not instruct supervisors to report complaints to appropriate officials higher up. II JA 1263 (Policy). The policy does not promise confidentiality or protection from retaliation. II JA 1263 (Policy). R&R had no particular procedure in place for resolving complaints of harassment. Lee explained that employees were instructed to go to the general manager with complaints and after that "it would depend on the situation." I JA 97 (Lee Dep. at 19). Waddy testified that employees were to report sexual harassment to their manager and they would resolve the problems. II JA 1081-82, 1084 (Waddy Dep. at 23-24, 26). R&R did not provide management employees with sexual harassment training. I JA 113 (Lee Dep. at 35); II JA 1087 (Waddy Dep. at 29); I JA 254 (McCarthy Dep. at 24). Consequently, neither Wheeler, II JA 990 (Wheeler Dep. at 76), nor other managers or employees received sexual harassment training at any time. I JA 113 (Lee Dep. at 35). Notwithstanding R&R Ventures' purported policy, there is evidence that Wheeler harassed young female employees of the company in the past. From 1993-94, Wheeler took an obsessive personal interest in a sixteen-year-old named Misti Sevier, a crew member working for him at a Taco Bell in Edgewater, Maryland. II JA 821, 841 (Sevier Dep. at 19, 33). Wheeler repeatedly told Sevier that he wanted to marry her when she turned eighteen. II JA 837, 841 (Sevier Dep. at 35, 39). He called her at home to discuss this plan. II JA 871 (Sevier Dep. at 69). Wheeler also routinely followed Sevier into the freezer at Taco Bell and brushed up against her. II JA 842 (Sevier Dep. at 40). Wheeler gave Sevier a key to a storage area attached to the restaurant and told her they could make out there. II JA 843 (Sevier Dep. at 41). In February of 1994, Wheeler arranged for roses to be delivered to work for Sevier on her seventeenth birthday. II JA 861, 871 (Sevier Dep. at 59, 69); II JA 1001 (Wheeler Dep. at 87). Sevier was "ashamed and embarrassed" by Wheeler's attention. II JA 866 (Sevier Dep. at 64). Around the same time, Lia Green Mack, a teenage crew member at the Jumpers Hole Taco Bell in Pasadena, Maryland, where Wheeler worked as a manager<6>, I JA 203, 212, 214 (Mack Dep. at 3, 12, 14), observed Wheeler make lewd comments to another teenager who worked there named Diane on a daily basis. I JA 218 (Mack Dep. at 18). Wheeler commented about Diane's body and called her a "whore" in front of co-workers and customers. I JA 218-20 (Mack Dep. at 18-20). Wheeler also made frequent comments about the size of Diane's buttocks in front of others. I JA 219-20 (Mack Dep. at 19-20). Male employees laughed at these comments. I JA 220 (Mack Dep. at 20). According to Mack, Diane sometimes cried and had to leave the store. I JA 218-19 (Mack Dep. at 18-19). Wheeler used terms of endearment such as "sweetheart" and "honey" to refer to Mack that made her uncomfortable. I JA 215 (Mack Dep. at 15). Wheeler continued to use these terms after Mack strongly asked him to stop. I JA 215-17 (Mack Dep. at 15-17). Mack testified that Wheeler's comments to Diane made his terms of endearment to Mack more unsettling. I JA 218 (Mack Dep. at 18). Mack complained to the manager, Debbie, that Wheeler made her uncomfortable and asked her to speak to Wheeler. I JA 216, 218, 228 (Mack Dep. at 16, 18, 28). Mack also witnessed Diane complaining about Wheeler to the manager and telling the manager that she felt uncomfortable. I JA 227-28 (Mack Dep. at 27-28). On March 30, 1999, the Commission filed this lawsuit alleging that Scott, Potter, and other unnamed female employees at the Severna Park Taco Bell were subjected to a sexually hostile work environment, and that R&R Ventures retaliated against Scott and Potter for complaining. I JA 8-13 (Complaint). 3. The District Court Decision The district court granted defendant's motion for summary judgment and dismissed the lawsuit in its entirety. The court set forth its reasons in a two-page decision. First, the court stated without further explanation that it "agrees with defendant that plaintiff Potter's and Scott's claims are time-barred." I JA 5 (Memorandum Opinion ("Op.") at 1). On the merits, the court concluded that there was no actionable sexual harassment because "there is absolutely no evidence that [Wheeler] ever sexually touched them, demanded sexual favors from them on a quid pro quo basis or otherwise, or did anything else except make vulgar and lewd comments to them with -- on occasion -- a sexual overtone." I JA 6 (Op. at 2). The court also noted that Wheeler did not confine his "verbal vulgarity" to the females under his supervision. Id. The court dismissed the retaliation claims on the ground that "there is insufficient proof of any causal connection between [protected] activity and the [challenged] job actions . . . to generate a triable issue under prevailing Fourth Circuit case law." Id. (citation omitted). STATEMENT OF STANDARD OF REVIEW A district court's grant of summary judgment is reviewed de novo. Kubicko v. Ogden Logistics Serv., 181 F.3d 544, 551 (4th Cir. 1999). In determining whether summary judgment was appropriate, this Court is required to assess the facts in the light most favorable to the Commission drawing all reasonable inferences in its favor. Id.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate only where no reasonable fact finder could return a verdict for the Commission. Anderson, 477 U.S. at 248. SUMMARY OF ARGUMENT This EEOC enforcement action is properly based on Scott's timely charge of discrimination. Because all of the claims alleged in the complaint grew out of a reasonable investigation of that charge and were included within the scope of the EEOC's finding of reasonable cause, they are properly included in this lawsuit. The timeliness of Potter's charge is irrelevant because the EEOC would be entitled to seek relief for her even if she never filed a charge. There is sufficient evidence to support a finding that female employees at the Severna Park Taco Bell were subjected to a sexually hostile work environment generated by the manager, Edwin Wheeler. Wheeler directed frequent sexual comments and jokes at young, female employees working under him, as well as sexist comments regarding the inferiority of women. In holding that the harassment was not severe or pervasive enough to constitute actionable sexual harassment, the district court ignored controlling decisions of the Supreme Court and this Court holding that verbal harassment violates Title VII if it is severe and pervasive enough to alter the employee's working conditions. Defendant is vicariously liable for Wheeler's harassment. Defendant cannot avail itself of the affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998), because it cannot show by a preponderance of the evidence both that it took reasonable care to prevent and correct sexual harassment and that the victim unreasonably failed to take advantage of any preventive opportunities. Defendant's policy was not disseminated, the subject of employee training, and was ineffective on its face. Moreover, Scott and Potter complained to managers at the Severna Park Taco Bell and to R&R Ventures management. The district court erred in dismissing the retaliation claim. There was sufficient evidence of a link between Scott's and Potter's complaints about harassment and the adverse actions taken against them. The evidence before the court established that adverse actions against Scott and Potter, including suspension and reduced hours, followed in close proximity to their complaints that they were being sexually harassed. This was enough to meet the de minimis burden required to show a causal connection. ARGUMENT I. THIS ACTION IS BASED ON A TIMELY CHARGE OF DISCRIMINATION. In granting the defendant's motion for summary judgment, the district court stated, without further explanation, that it "agrees with defendant that plaintiff Potter's and Scott's claims are time-barred." This statement is not only erroneous, but it reflects a basic misunderstanding of the nature of this action. This is an enforcement action by the EEOC; Potter and Scott are not plaintiffs. Under the standards applicable to EEOC enforcement actions, it is clear that all of the claims alleged in the EEOC's complaint were properly before the district court because it is indisputable that Scott filed a timely charge and all of the allegations in this action grew out of a reasonable investigation of her charge. First, notwithstanding the district court's assertion that it was "agree[ing]" with the defendant that Scott's charge was untimely, defendant made no such argument, nor could it. In a deferral state such as Maryland, (see EEOC v. Hansa Products, Inc., 844 F.2d 191, 192 n.3 (4th Cir. 1988)), a charge is timely if it is filed with the Commission within 300 days from the last alleged act of discrimination. 42 U.S.C. § 2000e-5(e). It is undisputed that Scott's charge was filed only 106 days after the last alleged act of discrimination.<7> II JA 1264-65 (EEOC Charge). Therefore, it was clearly timely. The defendant did argue that Potter's charge was untimely, but the timeliness of Potter's charge is of no relevance because the Commission could seek relief for her in this lawsuit even if she had never filed a charge at all. A complaint filed by the EEOC may include all claims discovered in a reasonable investigation of a charge of discrimination. See EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101 (6th Cir. 1984). Under this standard, all of the claims in this lawsuit are properly based on Scott's timely charge. Scott alleged in her charge that Wheeler sexually harassed her while she worked for him in the Severna Park Taco Bell. The allegations in the Commission's lawsuit that Scott, Potter, and other similarly situated female employees were victims of sexual harassment is a natural outgrowth of a reasonable investigation of Scott's charge. This investigation examined the workplace environment at the Severna Park Taco Bell from the time Wheeler began as a manager in March 1996 to his firing in July 1997. Potter worked in the same store for the same manager at around the same time. In fact, the record reflects that the Commission had contacted Potter in conjunction with its investigation of Scott's charge before Potter filed a charge. II JA 1289-92 (EEOC Letter and Questionnaire). Because the Commission learned of the harassment of Potter through a reasonable investigation of Scott's charge, the EEOC could seek relief for Potter even if she had not filed a charge at all. In EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir. 1976), this Court allowed the EEOC to allege a claim of sex discrimination in a complaint that stemmed from an administrative charge and investigation of race discrimination. A new charge was not required because "[s]o long as the new discrimination arises out of the reasonable investigation of the charge filed, it can be the subject of a 'reasonable cause' determination, to be followed by an offer by the Commission of conciliation, and, if conciliation fails, by a civil suit, without the filing of a new charge on such claim of discrimination."<8> In this case, we allege that other female employees working at the Severna Park Taco Bell with Wheeler, including Potter, suffered from the exact kind of discrimination complained of by Scott. Their claims are properly based on Scott's timely charge. II. THE EVIDENCE SUPPORTS A FINDING THAT FEMALE EMPLOYEES OF R&R VENTURES WERE SUBJECTED TO A HOSTILE WORK ENVIRONMENT IN VIOLATION OF TITLE VII AND THAT DEFENDANT IS LIABLE FOR THIS VIOLATION. A. The Evidence is Sufficient to Support a Finding that Female Employees of the Severna Park Taco Bell Were Subject to a Sexually Hostile Work Environment in Violation of Title VII. The Commission alleges that female employees working at defendant's Severna Park Taco Bell restaurant were subject to a sexually hostile work environment through "sexual comments, innuendo and offensive touching" by defendant's manager, Edwin Wheeler. I JA 9-13 (Complaint). The district court held that the Commission could not establish that these employees were sexually harassed because "there is absolutely no evidence that [Wheeler] ever sexually touched them, demanded sexual favors from them on a quid pro quo basis or otherwise, or did anything else except make vulgar and lewd comments to them with -- on occasion -- a sexual overtone." I JA 6 (Op. at 2). The district court's ruling reflects an unduly narrow view of what constitutes actionable sexual harassment, particularly the court's view that lewd sexual comments cannot be sufficient to create a hostile work environment. Subjecting employees to a sexually hostile work environment is a form of sex discrimination that violates Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66 (1986) ("Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."). To prevail on a hostile work environment claim under Title VII, the plaintiff must establish (1) that the harassment was because of the victims' sex; (2) that the conduct in question was unwelcome; (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer. Smith v. First Union Nat'l Bank, 202 F.3d 234, 241 (4th Cir. 2000). The determination as to whether a workplace is hostile should be made from the perspective of the victim and should take account of the social context. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82 (1998) ("[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a single recitation of the words used or the physical acts performed"). A determination of whether an environment is hostile or abusive must be based on a consideration of all the circumstances, which may include (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; (4) whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Whether harassment is sufficiently severe or pervasive is "quintessentially a question of fact. Summary judgment is inappropriate unless accepting [plaintiff's] evidence as true and drawing all justifiable inferences in her favor, a fact finder could not reasonably conclude [the conduct] was so severe or pervasive to create an abusive work environment." Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990)(en banc). Contrary to the district court's view, evidence that female employees were subjected to a constant barrage of sexual comments, jokes, insult, and innuendo is sufficient to establish a violation of Title VII. See Harris, 510 U.S. at 19, 23 (evidence that harasser subjected plaintiff to sexual innuendo, sex-based insults, and comments could support a finding of unlawful sexual harassment); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) ("verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII"). In Smith, 202 F.3d at 242, this Court explained that "[a] work environment consumed by remarks that intimidate, ridicule, and maliciously demean the status of women can create an environment that is as hostile as an environment that contains unwanted sexual advances." The district court incorrectly required more. The evidence in this case is sufficient to establish every element of a hostile work environment. First, there is sufficient evidence from which a fact finder could conclude that Wheeler's abuse of female employees was based on their sex. An employee suffers discrimination because of her sex if, but for the employee's sex, she would not have been the victim of the abuse. Smith, 202 F.3d at 242. Wheeler sought out young, naive female employees for unwanted sexual attention. See, e.g., II JA 1216-18 (Wright Dep. at 62-64); I JA 694-95 (Scott Dep. at 131-32); I JA 454-58 (Potter Dep. at 32-36). Although there is evidence that Wheeler was rude and abrasive to both male and female employees, I JA 456-58 (Potter Dep. at 34-36), he reserved inappropriate sexual comments and innuendo for the females. II JA 1216 (Wright Dep. at 62). Male workers did not complain of sexually-based behavior. See I JA 305-06 (McKee Dep. 25-26). In addition, Wheeler frequently made demeaning comments to and about women, such as that women are stupid compared to men, I JA 307-08 (McKee Dep. at 27, 28); "she's just a woman;" or "women can't do things like that." I JA 474-75 (Potter Dep. at 52-53); II JA 1291 (EEOC Questionnaire). In Smith,, this Court rejected defendant's argument that because both male and female members of the harasser's team complained about his management style, the harassment directed at plaintiff was not because of her gender. 202 F.3d at 242. See Harris, 510 U.S. at 25 (Ginsburg, J., concurring) ("[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed"). Thus, there is sufficient evidence to support a finding that Wheeler singled out the victims because of their gender. Second, it is undeniable that Wheeler's behavior was unwelcome. The victims testified that they told Wheeler not to discuss sex in front of them and other employees and that they were offended by his behavior. See I JA 702, 706, 788 (Scott Dep. at 139, 143, 225); I JA 452-53, 463-65 (Potter Dep. at 30, 41-43). There is also evidence that Wheeler's comments made the victims visibly upset. I JA 729, 748, 752-53 (Scott Dep. at 166, 185, 189-90); II JA 1212, 1222, 1231-32 (Wright Dep. at 58, 68, 77-78). Wheeler's behavior caused Scott to resign. I JA 689 (Scott Dep. at 126). Both Scott and Potter were upset enough about Wheeler's behavior to complain to management. I JA 7007, 747-48, 801 (Scott Dep. at 144, 184-85, 238); I JA 471, 479, 485-86, 532 (Potter Dep. at 49, 57, 63-64, 110). See Meritor, 477 U.S. at 69 ("[t]he correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome"); Smith, 202 F.3d at 242 (plaintiff who told harasser his remarks were offensive to her sufficiently alleged conduct was unwelcome). Accordingly, there is ample evidence to support a finding that Wheeler's conduct was unwelcome. Third, there is adequate evidence to support a finding that the harassment at the Severna Park Taco Bell was sufficiently severe or pervasive to create an abusive working environment for female employees. There is evidence that Wheeler's conduct towards female employees was frequent, egregious, humiliating, and upsetting enough to the victims to change their work conditions. Wheeler's harassment was frequent. As set out in detail above, there is evidence that Wheeler made sexual comments and jokes every time that Potter and Scott worked with him. See supra at pp. 5-9 (Scott), and pp. 13-15 (Potter). Wheeler also cursed at female employees on a daily basis, told them they were stupid, (I JA 470 (Potter Dep. at 48)), and commented on the inferiority of women "all the time." I JA 307-08 (McKee Dep. at 27-28). Severity and pervasiveness are in an inverse ratio - the more pervasive the conduct, the less severe it need be to be actionable. Wilson v. Southern Nat'l Bank of North Carolina, Inc., 900 F. Supp. 803, 809 (W.D.N.C. 1995). Because the sexual comments, innuendo, and jokes that female employees endured were so pervasive, the burden on the Commission to offer evidence that Wheeler's conduct was severe is less demanding than it would be in a case involving isolated incidents of harassment. In any event, there is evidence that female employees at the Severna Park Taco Bell were subjected to egregious harassment. Wheeler described his sex life in detail to Scott, Potter and other young female employees (I JA 700, 702, 703, 731-32 (Scott Dep. at 137, 139, 140, 168-69); I JA 463, 465 (Potter Dep. at 41, 43), and inquired about their sex lives. I JA 463 (Potter Dep. at 41). Wheeler routinely asked Scott if she liked to be spanked (I JA 698, 699 (Scott Dep. at 135, 136)); if she was in a good mood because she had "gotten laid" (I JA 395 (Mooney Dep. at 80)), and complained to Potter about how long it had been since he had sex. I JA 463 (Potter Dep. at 41). Wheeler closely examined and commented on female employees' bodies, often in front of others. II JA 1211-12, 1223 (Wright Dep. at 57-58, 69); I JA 351 (Mooney Dep. at 36). For example, Wheeler remarked on the size of Scott's buttocks (I JA 695, 722 (Scott Dep. at 132, 159); I JA 395 (Mooney Dep. at 80)) and breasts (I JA 396 (Mooney Dep. at 81)), and asked Wright what size pants she wore. II JA 1212-13 (Wright Dep. at 58-59). There is also evidence that Wheeler flirted with and propositioned young female employees (I JA 455-56, 463 (Potter Dep. at 33-34, 41); I JA 694-95 (Scott Dep. at 131-32)), and touched some of them inappropriately. I JA 299, 301 (McKee Dep. at 19, 21); I JA 354 (Mooney Dep. at 39). The circumstances and content of Wheeler's harassing comments were humiliating. Wheeler made sexual comments and insults in front of other employees and customers. I JA 729, 730-31, 733 (Scott Dep. at 166, 167-68, 170); I JA 469 (Potter Dep. at 47); I JA 396 (Mooney Dep. at 81). See Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997) (sexual harassment occurring in small office where co-workers could hear abusive comments increased the humiliation and severity of the discriminatory conduct). The victims were offended and embarrassed by Wheeler's sexually explicit commentary. I JA 702, 706, 711 (Scott Dep. at 139, 143, 148); II JA 1213, 1223 (Wright Dep. at 59, 69). Scott lost a significant amount weight to avoid drawing attention to her body. I JA 788-91 (Scott Dep. at 225-28). These incidents were particularly harmful because they were generated by the victims' direct supervisor, a much older man in a position of power, and were directed at self-conscious teenagers. See Ibrahim v. Holiday Inn, Inc., 1996 WL 199743, at *8 (N.D. Ill.) ("[a] reasonable person is likely to feel particularly helpless and humiliated when harassed by a supervisor three times her age and the highest in command at her work location"). Wheeler's harassment was pervasive and severe enough to interfere with the victims' conditions of employment. "[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Harris, 510 U.S. at 25 (Scalia, J., concurring). A plaintiff need only prove the harassment made it more difficult to do the job. Id. (Ginsburg, J., concurring). As detailed above, there is sufficient evidence in the record to support a finding that Wheeler's conduct rose to this level. The victims testified that they were afraid of Wheeler (I JA 484, 561 (Potter Dep. at 62, 139)) and deeply distraught by his conduct. See II JA 1237-38 (Wright Dep. at 83-84); I JA 745 (Scott Dep. at 182). Wheeler's treatment of both Scott and Potter reached a point where they could no longer stand to work with him. I JA 484-84 (Potter Dep. at 61-62); I JA 689, 725 (Scott Dep. at 126, 162). This interfered with the victims' work performance. See Smith, 202 F.3d at 243 (harasser's threats, angry phone-calls, and constant barrage of discriminatory remarks frightened plaintiff and unreasonably interfered with her work performance by making her unable to continue working near the harasser). Accordingly, a reasonable jury could find that the workplace at Taco Bell was "permeated with discriminatory intimidation, ridicule, and insult," so as to alter the conditions of the victims' employment in violation of Title VII. See Harris, 510 U.S. at 21. The district court stated, however, that, while Wheeler's conduct was in "poor taste," it did not amount to actionable sexual harassment "under this Circuit's test for pervasiveness and severity of misconduct, as consistently applied in cases such as Hopkins v. Baltimore Gas & Elec. Co., 77 F.2d 745 (4th Cir. 1996)." I JA 6 (Op. at 2). Hopkins, however, provides no support for the district court's dismissal of this action. First, Hopkins was a same-sex harassment case predating the Supreme Court's decision in Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998). Although the Hopkins court left open the possibility that male-on-male harassment may be actionable under Title VII, it indicated that it would require a higher standard of proof than that required for male-on-female harassment, because in the latter case it may be presumed that the harassment occurred because of gender. In a male-on-male harassment case, the court stated, the plaintiff "must overcome the presumption . . . that the harassment was not 'because of' [the victim's] gender." 77 F.3d at 753. This case involves harassment of female employees by their male supervisor; accordingly there is no such presumption to overcome. Second, the facts alleged in this case are not comparable to those in Hopkins, where the plaintiff complained of several incidents occurring over the course of seven years with gaps of as much as a year between incidents. The court found these incidents, which it characterized as "temporally diffuse, ambiguous, and often not directed specifically at [plaintiff]," not sufficiently severe or pervasive enough to create an environment that a reasonable man would find hostile or abusive. Id. at 753-54. Here, by contrast, the incidents occurred on a daily basis, were often overtly sexual in nature, and were directed at the young women for whom the Commission seeks relief in this action. The facts in this case are close to those in Harris, 510 U.S. 17, and Smith, 202 F.3d 234, both of which involve workplaces marked by persistent sexual and sexist comments. In both of those case the courts found summary judgment improper and remanded for further proceedings. See Harris, 510 U.S. at 23; Smith, 202 F.3d at 252. This Court should do the same in this case. The district court's reliance on Hawkins v. Pepsico, Inc., 203 F.3d 274 (4th Cir. 2000) is also misplaced. I JA 7 (Op. at 3). In Hawkins, this Court affirmed the district court's grant of summary judgment on plaintiff's racially hostile work environment claim because there was no evidence that the challenged actions were based on race. 203 F.3d at 281. In contrast, there is ample evidence to support a finding that the victims in this case were subjected to sexual comments, jokes, innuendo, and sexist remarks because they are female. See supra at pp. 30-31. B. Defendant Cannot Escape Liability for Wheeler's Harassment of His Female Subordinates. An employer is normally vicariously liable for a hostile work environment created by a supervisor with immediate authority over the victims. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998). When no tangible employment action is taken, however, a defendant may establish an affirmative defense to liability by proving that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Id. Defendant argued below that it established both elements of this defense. R. 20 (Defendant's Motion for Summary Judgment at 18-21). Although the district court did not address the question, the defendant may argue that it provides an alternative basis for affirming the judgment. It does not. The party bearing the burden of proof on an issue, as R&R Ventures does on this affirmative defense, is entitled to summary judgment only if the evidence in the record compels a finding that it has met every element of the defense. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). R&R Ventures cannot meet this standard with respect to either prong. First, to establish that it exercised reasonable care, an employer must generally show that it established, disseminated, and enforced an anti-harassment policy and complaint procedure suitable to the employment circumstances. See Ellerth, 524 U.S. at 765; Brown v. Perry, 184 F.3d 388, 395 (4th Cir. 1999). Because the inquiry focuses on reasonableness, any policy adopted must be both reasonably designed and reasonably effective. Brown, 184 F.3d at 396; Smith, 202 F.3d at 244. A policy should encourage victims to come forward. Meritor, 477 U.S. at 73. R&R Ventures has not established that its policy against sexual harassment was disseminated to its employees at the time the harassment at issue occurred. Although it presented some evidence that the policy was posted and included in an employee handbook, the victims of Wheeler's harassment denied that they had been informed of the policy. I JA 668 (Scott Dep. at 105); II JA 1221 (Wright Dep. at 67); I JA 518-19 (Potter Dep. at 96-97). Because there is a conflict on this issue, a jury would not be compelled to find that R&R Ventures' policy constituted reasonable care to prevent harassment. Even if R&R Ventures' policy was disseminated to employees, it would not establish that the defendant exercised reasonable care because the policy is inadequate on its face. The policy directs employees to complain to their immediate supervisor "or above" without specifying how to bypass the supervisor when he is the harasser. The policy did not identify Wheeler's supervisors, who did not work at the Taco Bell, or indicate how they could be contacted. Assistant manager Michelle Waddy testified that employees were to report sexual harassment to their manager and they would resolve the problems (II JA 1080-81 (Waddy Dep. at 23-24, 26)), which brought the victims straight to Wheeler. Potter testified that it took her two weeks to get in touch with upper level management because no numbers were posted regarding who to call to complain about sexual harassment by a supervisor, and the other managers refused to give her Lee's number. I JA 480-83 (Potter Dep. at 58-61). An employer policy that does not provide assurance that an employee can bypass a harassing supervisor does not constitute reasonable care. See Faragher, 524 U.S. at 808 (in holding as a matter of law defendant did not exercise reasonable care to prevent harassment, Court noted that defendant's policy did not include any assurance that the harassing supervisor could be bypassed); Meritor, 477 U.S. at 73 ("[p]etitioner's contention that respondent's failure [to invoke policy which required complaining first to harassing supervisor] should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward"). Furthermore, R&R Ventures' policy has other obvious defects: it does not instruct supervisors to report complaints to appropriate management officials; it does not promise confidentiality; and it does not offer protection from retaliation. I JA 1263. The policy provides no mechanism for resolving complaints. II JA 1263. Lee explained that employees were instructed to go to the general manager with complaints and after that "it would depend on the situation." I JA 97 (Lee Dep. at 19). See Walker, 214 F.3d at 627 (need for complaint procedure specifically to address racial harassment may be raised when litigating the first element of the Faragher-Ellerth defense, and lack of such a written policy procedure weights in plaintiffs' favor). In light of all of these deficiencies, it is difficult to see how a reasonable jury could conclude that defendant's adoption of this policy constitutes reasonable care to prevent sexual harassment. Surely, R&R Ventures was not entitled to summary judgment on the issue. R&R Ventures did not take any steps to prevent sexual harassment other than adopting this bare-bones policy. Neither managers nor hourly employees were provided with training regarding the contents of the policy. I JA 113 (Lee Dep. at 35); II JA 1087 (Waddy Dep. at 29); I JA 254 (McCarthy Dep. at 24). Victims were not encouraged to come forward. When Potter complained to assistant manager Tammy Hartley, Hartley told Potter she was overreacting and then told Wheeler of Potter's complaints. I JA 485-86, 489 (Potter Dep. at 63-64, 67). This only made Wheeler more hostile. I JA 485 (Potter Dep. at 63). An employer "cannot satisfy the first element of the Faragher-Ellerth affirmative defense if its management-level employees are discouraging the use of the complaint process." Smith, 202 F.3d at 245. When Scott finally managed to get through to defendant's management to complain about Wheeler, the company's investigation was manifestly inadequate. Lee testified that after Scott's mother informed Lee that Scott was filing a sexual harassment charge with the EEOC, he had his wife call several female employees to discuss Wheeler's behavior around them. I JA 149-52 (Lee Dep. at 71-74). Based on these conversations, R&R Ventures decided that no action was warranted against Wheeler. See I JA 153 (Lee Dep. at 75). At that point, neither Lee nor his wife interviewed Scott or Wheeler about her allegations. See I JA 153 (Lee Dep. at 75). Defendant indicated below that defendant fired Wheeler because of the allegations of sexual harassment. R. 20 (Motion for Summary Judgment at 27). However, there is no evidence in the record to support this contention. Heller testified that Wheeler was fired because of poor job performance at the Crofton Taco Bell. I JA 76 (Heller Dep. at 59). Both Lee and Wheeler testified the reason was because Wheeler was working at McDonald's at the same time. I JA 139-40 (Lee Dep. at 61-62); II JA 973-74 (Wheeler Dep. at 59-60). In addition, evidence of past sexual harassment by Wheeler directed at other young female victims of two other Taco Bell restaurants run by R&R Ventures indicates that the policy was not effective in preventing sexual harassment. In 1993, Wheeler relentlessly pursued sixteen-year-old Misti Sevier, a crew member working for him at a Taco Bell in Edgewater, Maryland. Wheeler repeatedly told Sevier that he wanted to marry her when she turned eighteen (II JA 837, 841 (Sevier Dep. at 35, 39)); followed her into the freezer and brushed up against her, (II JA 842 (Sevier Dep. at 40)); told her he wanted to make out with her in the storage room and gave her a key (II JA 843 (Sevier Dep. at 41)); sent her roses on her seventeenth birthday (II JA 861, 871 (Sevier Dep. at 59, 69); II JA 1001 (Wheeler Dep. at 87)); and called her at home to discuss marrying her. II JA 871 (Sevier Dep. at 69). Sevier testified that she did not complain because she was afraid of losing her job (II JA 852, 875 (Sevier Dep. at 50, 73)), but ultimately left because of Wheeler's harassment. II JA 876 (Sevier Dep. at 74). Around the same time, Lia Green Mack, a teenage crew member at the Jumpers Hole Taco Bell in Pasadena, Maryland, where Wheeler worked as a manager, observed Wheeler make lewd comments to another teenager who worked there named Diane on a daily basis. I JA 218 (Mack Dep. at 18). Wheeler commented about Diane's body and called her a "whore" in front of co-workers and customers (I JA 218, 219-20 (Mack Dep. at 18, 19-20)); made frequent comments about the size of her buttocks for the amusement of male employees, (I JA 219-20 (Mack Dep. at 19-20)); and reduced her to tears. I JA 218-19 (Mack Dep. at 18-19). Wheeler used terms of endearment such as "sweetheart" and "honey" to refer to Mack (I JA 215 (Mack Dep. at 15)), and continued to use these terms after Mack strongly asked him to stop. I JA 215-16, 217 (Mack Dep. at 15-16, 17). Both Mack and Diane complained to the manager about Wheeler. I JA 216, 218, 227-28 (Mack Dep. at 16, 18, 27-28). There is no evidence that any action was taken in response to these complaints. Finally, even if R&R Ventures had an effective policy, the company could not establish that it was deprived of an opportunity to correct the situation by the victims' unreasonable failure to take advantage of the policy. The record shows that, despite the defendant's failure to tell its employees how to complain to management, both Scott and Potter made repeated efforts to complain about Wheeler's conduct. Scott testified that she told every manager at the Severna Park Taco Bell about Wheeler's offensive behavior (I JA 747-48 (Scott Dep. at 184-85)), including Farrell, (I JA 707, 732-33, 734, 800-01 (Scott Dep. at 144, 169-70, 171, 237-38)); assistant manager Mareia Waddy, (I JA 725, 733, 734, 735-36, 799-800 (Scott Dep. at 162, 170, 171, 172-73, 236-37)); and shift manager Mike McCarthy. I JA 732-33, 736, 799-800 (Scott Dep. at 169-70, 173, 236-37). Scott's mother also discussed Wheeler's sexual comments with Waddy (I JA 759-61 (Scott Dep. at 196-98)), and left several detailed messages with Mike Lee's secretary when he was not available. I JA 345, 368, 370-78 (Mooney Dep. at 30, 53, 55-63); I JA 738 (Scott Dep. at 175). Lee did not return Mooney's calls. I JA 375-76 (Mooney Dep. at 60-61). Lee also failed to returned Scott's calls. I JA 738-39 (Scott Dep. at 175-76). Lee waited to discuss Scott's complaints about Wheeler until after Scott filed a charge with the EEOC. I JA 417-18 (Mooney Dep. at 102-03). Potter complained to other managers at the Severna Park Taco Bell on behalf of other employees and herself. I JA 452-54 (Potter Dep. at 30-32). When she complained to Tammy Hartley, Hartley told her that she was overreacting (I JA 485-86, 489 (Potter Dep. at 63-64, 67)) and told Wheeler that Potter had complained about him. I JA 485 (Potter Dep. at 63). After repeated attempts to obtain Lee's number (I JA 481-83, 521 (Potter Dep. at 59-61, 99)), Potter complained to Mike Lee and Dennis Heller that Wheeler was making inappropriate comments that offended her and other female employees working there. I JA 471, 479, 532 (Potter Dep. at 49, 57, 110). Accordingly, R&R Ventures cannot establish either prong of the affirmative defense. III. THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO ESTABLISH A CAUSAL CONNECTION BETWEEN SCOTT'S AND POTTER'S COMPLAINTS OF HARASSMENT AND ADVERSE ACTIONS TAKEN AGAINST THEM BY R&R VENTURES. The district court held that the Commission did not make out a prima facie case of retaliation because there was insufficient proof of a causal connection between protected activity and adverse actions against Scott and Potter.<9> I JA 6 (Op. at 2). However, the record is sufficient to meet the minimal burden required to show a causal connection. Title VII makes it unlawful to "discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that (1) she engaged in a protected activity, (2) the employer took adverse action against the employee, and (3) there was a causal connection between the activity and the adverse action. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir. 1998). The initial burden on plaintiffs to establish the causal connection prong is minimal. This Court has explained, "Normally, very little evidence of a causal connection [between the employee's protected activity and the adverse action] is required to establish a prima facie case of retaliation. . . . [W]e have held that merely the closeness in time between the filing of a discrimination charge and an employer's firing an employee is sufficient. . . ." Id. The evidence of a causal connection is sufficient to establish a prima facie case with respect to both Scott and Potter. Both engaged in protected activity - complaining of Wheeler's sexual harassment to management. Both suffered adverse actions that followed in close proximity to complaining about Wheeler: Scott was suspended for two weeks after she complained and never put back on the work schedule (I JA 736 (Scott Dep. at 173)); Potter's hours were reduced to the extent that she was compelled to resign soon after she complained to Lee. I JA 496-98, 502-07 (Potter Dep. at 74-76, 80-85); II JA 1281-84 (Payroll Records). The proximity of the complaints to the adverse actions is sufficient by itself to establish a prima facie case. However, there is additional evidence linking the treatment of Scott and Potter to their complaints. After Scott complained about Wheeler to the managers at the Severna Park store, she noticed that his attitude changed toward her. See I JA 747 (Scott Dep. at 184). On October 27, 1996, Wheeler screamed at Scott for coming in too early for her shift and reduced her to tears. I JA 734-35 (Scott Dep. at 171-72). Although Scott had been given permission by another manager to take the day off because she was so upset (I JA 736 (Scott Dep. at 173); I JA 403 (Mooney Dep. at 88)), Wheeler suspended her for two weeks for failing to show up for work and never placed her back on the schedule. I JA 736 (Scott Dep. at 173). After Potter complained to Wheeler and Hartley about his sexual comments, he became more hostile. I JA 463-64, 485 (Potter Dep. at 41-42, 63). There is also evidence that management was unhappy that Potter had complained. After Potter complained to Lee and Heller, Lee transferred Potter to the Crofton Taco Bell temporarily. I JA 138, 191-92 (Lee Dep. at 60, 113-14). When Potter took a week off work to await the switch to the new Taco Bell per Lee's instructions, Hartley called Potter at home and asked her why she was not coming in for her shift and if she had filed a complaint against Wheeler. Hartley insisted that she come to work or be fired. I JA 487-88 (Potter Dep. at 65-66). Potter testified that when she arrived at work, Wheeler told her she had "no fucking right to go to my boss and complain" about him and called her a bitch. I JA 489 (Potter Dep. at 67). After Potter's mother saw her hysterically crying, she called Heller to complain that Potter had been called into work with Wheeler. Heller called Potter's mother a bitch, told her to go to hell, and hung up on her. See I JA 491 (Potter Dep. at 69); I JA 59 (Heller Dep. at 42). Following that incident, after Potter returned to Severna Park, her hours were reduced without explanation. I JA 496-98, 502-07 (Potter Dep. at 74-76, 80-85). When her hours did not increase, Potter was forced get another job and then resign from Taco Bell. I JA 506-08 (Potter Dep. at 84-86); II JA 1288 (Personnel Action Form). Although Wheeler was no longer scheduling people at the Severna Park Taco Bell, the evidence described above indicates that other R&R officials were unhappy about Potter's complaints. Because Scott and Potter were punished soon after they complained to management, there is sufficient evidence of a causal connection between the protected activity and the adverse action taken to establish a prima facie case. Although the defendant asserts legitimate reasons for these actions, there is a genuine issue of material fact as to whether those reasons were pretextual. For example, defendant's assertion that Potter's hours were reduced because she became undependable (I JA 61-62 (Heller Dep. at 44-45)) is undermined by his testimony that she was a good employee being groomed for management. See I JA 51-52, 73-74 (Heller Dep. at 34-35, 56-57). See Tinsley, 155 F.3d at 444 ("[a]ffirmative evidence of retaliation that makes up a prima facie case, even if it is itself insufficient to prove discriminatory retaliation, may suffice to preclude summary judgment if the employer's asserted legitimate reasons for the action have been undermined"). Therefore, summary judgment was inappropriate. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. REQUEST FOR ORAL ARGUMENT The Commission requests oral argument and submits that it would be of assistance to the Court. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 August 11, 2000CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and the textual portion contains 11,827 words. I understand that a material misrepresentation in completing this certificate can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out. _________________________ Julie L. GantzCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to: Paul J. Weber HYATT & PETERS 1919 West Street Box 1852 Annapolis, MD 21404-1852 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 August 11, 2000 1 Citations to the record proper are abbreviated "R." and refer to the district court docket sheet number. 2 A crew member, or hourly employee, is an entry-level position at Taco Bell where job responsibilities include preparing food, running the register, and waiting on customers. I JA 144-45 (Lee Dep. at 66-67). 3 Scott's charge was signed on February 2, 1997; however, it is stamped as received on February 10, 1997. II JA 1265. 4 Potter testified that she was hired as a shift manager trainee. I JA 452 (Potter Dep. at 30). R&R Ventures' executives Dennis Heller and Mike Lee testified that Potter was hired as a crew member and later asked to be a shift manager trainee. I JA 164 (Lee Dep. at 86); I JA 52 (Heller Dep. at 35). 5 Potter's charge was signed on May 26, 1998, II JA 1267 (Charge), and an EEOC log indicates that it was received on June 1, 1998. II JA 1342 (EEOC Log). 6 During this period, Wheeler "floated" as a manager between several Taco Bell locations, including Edgewater and Jumpers Hole. II JA 977, 979, 987 (Wheeler Dep. at 63, 65, 73). 7 Defendant argued only that the Commission failed to serve Scott's charge within ten days as required by § 706(b) of Title VII. R. 20 at 10 (Defendant's Motion for Summary Judgment). However, the record establishes that the charge was served eight days after it was received by the Commission. The date stamp indicating receipt appears on the back of Scott's charge. See II JA 1265. 8 Defendant has never argued that the Commission's conciliation was not broad enough to encompass Potter's and other similarly situated female employees' claims of sexual harassment. 9 The court also cited this Court's unpublished opinion in Gilyard v. United States Doe, 2000 WL 265621 (4th Cir. Mar. 10, 2000). However, that decision does not address the question of causal connection. Instead, it rejects a retaliation claim because no adverse employment action was taken against the plaintiff. Id. at *3. As discussed in the text, there is ample evidence that adverse actions were taken against Scott and Potter after they complained. The only question is whether those actions were taken because of the complaints or for other reasons.