Case No. 06-3436 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff-Appellant, v. CONCENTRA HEALTH SERVICES, INC. Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, No. 05-1109 Hon. Wayne Andersen, Judge __________________________________________________ REPLY BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT __________________________________________________ RONALD S. COOPER General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 CAROLYN L. WHEELER (202) 663-4772 Assistant General Counsel joseph.seiner@eeoc.gov JOSEPH A. SEINER Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . ii Introduction . . . . . . . . . . . . . . . . . 1 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The Amended Complaint Provided Defendant Sufficient Notice 4 B. The Complaint and Discrimination Charge Sufficiently Allege a Retaliation Claim. 10 Conclusion . . . . . . . . . . . . . . . . . . . . . . .. 21 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Federal Cases 188 LLC v. Trinity Indus., Inc., 300 F.3d 730 (7th Cir. 2002) 10, 11 Alexander v. Gerhardt Enters., 40 F.3d 187 (7th Cir. 1994) 18 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) 7-8 Brown v. Budz, 398 F.3d 904 (7th Cir. 2005) 16 Cler v. Illinois Educ. Ass'n, 423 F.3d 726 (7th Cir. 2005) 5 Conley v. Gibson, 355 U.S. 41 (1957) 12 Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994) 17 Doe v. Smith, 429 F.3d 706 (7th Cir. 2005) 4-5 Drinkwater v. Union Carbide Corp., 904 F.2d 853 (3d Cir. 1990) 19 Duda v. Bd. of Educ. of Franklin Park Pub. Sch., 133 F.3d 1054 (7th Cir. 1998) 14 EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005) 11, 14 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) 14 Fine v. Ryan Int'l Airlines, 305 F.3d 746 (7th Cir. 2002) 12 Firestine v. Parkview Health Sys., 388 F.3d 229 (7th Cir. 2004) 18 Graehling v. Village of Lombard, 58 F.3d 295 (7th Cir. 1995) 17 Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002) 8-9 Kelley v. Crosfield Catalysts, 135 F.3d 1202 (7th Cir. 1998) 14 Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998) 11-12 Lubin v. Chicago Title & Trust Co., 260 F.2d 411 (7th Cir. 1958) 14 Marshall v. Knight, 445 F.3d 965 (7th Cir. 2006) 8 Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642 (7th Cir. 2006) 12 McDonald v. Household Int'l, Inc., 425 F.3d 424 (7th Cir. 2005) 5 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) 16 Phelan v. City of Chicago, 347 F.3d 679 (7th Cir. 2003) 12 Preston v. Wisconsin Health Fund, 397 F.3d 539 (7th Cir. 2005) 20 Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006) 5-6 Simpson v. Nickel, 450 F.3d 303 (7th Cir. 2006) 5, 6 Speedy v. Rexnord Corp., 243 F.3d 397 (7th Cir. 2001) 9 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) 1, 6 Federal Statutes 42 U.S.C § 2000e 4, 17-18 Federal Rules and Regulations Federal Rule of Civil Procedure 12 10 Federal Rule of Civil Procedure 8 5, 6, 8, 10 Federal Rule of Civil Procedure 56 10 29 C.F.R. § 1604.11(g) 19 Other Authorities EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC Notice No. 915-048 (Jan. 12, 1990), available at http://www.eeoc.gov/policy/docs/sexualfavor.html 19-20 INTRODUCTION In its opening brief, the Equal Employment Opportunity Commission (EEOC or Commission) argued that this Court should reverse the district court's decision dismissing the Commission's amended complaint. The Commission argued that the amended complaint provided notice to the defendant that the EEOC was alleging a retaliation claim pursuant to Title VII, set forth the time period that the violation occurred, indicated that the retaliation was the result of a complaint to the director of human resources, and provided the nature of the company's illegal conduct, thus meeting the requirements of notice pleading. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The Commission further argued in its opening brief that the district court had erred in considering the charge of discrimination, which was attached to the defendant's motion to dismiss but not to the EEOC's amended complaint, in granting the dismissal. However, even assuming the charge was properly considered, this document actually bolsters, rather than undermines, the Commission's position that the amended complaint sufficiently stated a retaliation claim. The Commission explained in its opening brief that this Court's case law is clear that to dismiss the case at this early stage of the proceedings, the district court must be unable to hypothesize any set of facts that would support a viable retaliation claim. The Commission argued that there are several sets of facts consistent with the amended complaint and Horn's charge that could support a claim that Horn was retaliated against because he opposed unlawful activity he reasonably believed violated Title VII. In response to the Commission's arguments, Concentra repeatedly attacks the EEOC for allegedly engaging in an "age-old confidence game," for "coyly" obscuring the theory of the case, and for being "downright evasive." Defendant brief at 5, 6, 12. These repeated aspersions, however, while attention getting, do not alter the fact that the Commission's amended complaint satisfies the liberal pleading requirement of the federal rules, as consistently interpreted by the Supreme Court and this Court, and put the company on notice of the claim against it. Concentra's argument that the amended complaint (even when considered with the charge) does not state a viable claim of retaliation is premised on its narrow reading of one fact contained in the charge, and ignores the rule that dismissal is appropriate only if there is no set of facts that could support the claim. The Commission posited several factual scenarios in its opening brief - completely consistent with the amended complaint and charge - that would support a claim of retaliation under Title VII, and Concentra's response is merely that these plausible readings of the underlying complaint constitute a "shell game." Defendant brief at 5, 6, 15. ARGUMENT This case is relatively straightforward. A Concentra employee, Charles Horn, encountered Cherie Varzino, his supervisor, and Shannon Johnson, one of the medical assistants that Horn supervised, engaging in sexual relations on company property. See Charge, Exhibit A to Defendant's December 13, 2005, Memorandum in Support of Motion to Dismiss; Doc. No. 22; Short Appendix (SA) at 21-22. Varzino later admitted to Horn that she was having an affair with Johnson, as well as with other company employees, and advised him not to report her for fear that she would be terminated. Id. Horn received complaints from several staff members that they believed Johnson was receiving preferential treatment because of his sexual relationship with Varzino, and Horn subsequently reported the affair and his view that it was having adverse effects on the work environment and his ability to perform his job. Id. In response, he was instructed by the area administrator "not to complain to Human Resources again." Id. After making this complaint and "participating in Concentra's investigation into potential sexual harassment," Horn was issued nine unwarranted disciplinary warnings and was ultimately terminated. Id. In its amended complaint alleging retaliation, the Commission asserted, in relevant part, that: Since at least 2001, Defendant has engaged in unlawful employment practices at its Elk Grove location, in violation of Section 704(a) of Title VII, 42 U.S.C § 2000e-3(a). Such unlawful employment practices include, but are not limited to, retaliating against Horn after he opposed conduct in the workplace that he objectively and reasonably believed in good faith violated Title VII by reporting the conduct to Concentra's Director of Human Resources. Concentra's retaliation includes, but is not limited to, issuing Horn unwarranted negative evaluations and terminating him. EEOC's First Amended Complaint at paragraph 7, Doc No. 18; SA at 17-18. Based on this allegation in the amended complaint, Concentra argues that it was not provided with sufficient notice of the retaliation claim against it. Defendant brief at 7-10. And, based on the facts alleged in the amended complaint and Horn's discrimination charge, and prior to any discovery having taken place in the case, Concentra argues that there is no set of facts that could possibly support a viable retaliation claim. Defendant brief at 11-20. Both contentions are incorrect. A. The Amended Complaint Provided Defendant Sufficient Notice Concentra argues that the Commission's amended complaint is deficient and fails to provide proper notice because it does not assert the protected activity that Horn engaged in and fails to set forth the required facts of retaliation. Defendant brief at 7-8 ("Did Horn complain that Concentra discriminated against an African- American employee in a termination, or a female employee in not being promoted, or an Asian employee in being demoted?"). In making this argument, Concentra fails to address this Court's clear authority warning that any defendant tempted to write "this complaint is deficient because it does not contain . . ." should stop and think: What rule of law requires a complaint to contain that allegation? Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis in original); see also Simpson v. Nickel, 450 F.3d 303, 305 (7th Cir. 2006) (same); McDonald v. Household Int'l, Inc., 425 F.3d 424, 427 (7th Cir. 2005) (setting forth the "notice pleading standard" in the federal rules). The EEOC's amended complaint provided notice to the defendant that the Commission was alleging a retaliation claim pursuant to Title VII. It also provided the time period that the violation occurred, indicated that the retaliation was the result of a complaint to the director of human resources, and provided the nature of the company's illegal conduct. These allegations satisfy the liberal pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. See Cler v. Illinois Educ. Ass'n, 423 F.3d 726, 730 (7th Cir. 2005) ("The [district] court's decision to construe [the complaint] narrowly is inconsistent with Rule 8 and with the obligation to draw all inferences in favor of the nonmoving party when resolving a motion to dismiss."). Concentra argues that the amended complaint is deficient because it does not allege enough facts about the retaliation (Defendant brief at 7-8), yet the company cannot overcome the clear mandate of Rule 8 that such heightened pleading is not required. As a recent D.C. Circuit decision in a retaliation case succinctly stated, "all [the] complaint has to say" to satisfy the liberal pleading requirements is that the defendant "retaliated against me because I engaged in protected activity." Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 2006) (citation and quotation omitted). The Commission's amended complaint more than satisfies this requirement. Tellingly, Concentra relies largely in its brief on cases decided before the Supreme Court's decision in Swierkiewicz, and the company simply dismisses the EEOC's reliance on this Supreme Court precedent as "misplaced." Defendant brief at 9-10. The Court's decision in Swierkiewicz, however, is directly on point. In Swierkiewicz, the Court held that a "heightened pleading standard in employment discrimination cases conflicts with [Rule 8], which provides that a complaint must include only a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" 534 U.S. at 512. The Court further emphasized that "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case . . . ." Id. at 511. Under Swierkiewicz it is clear that the Commission provided sufficient notice to the defendant by alleging a claim of retaliation, and by specifically setting forth the time and nature of the illegal conduct. Also see Simpson, 450 F.3d at 305 (a litigant need only plead "claims" rather than legal theories or facts and "plaintiffs need not allege either the factual or legal 'elements' of a prima facie case under the employment- discrimination laws" (citing Swierkiewicz)). Concentra's argument that the complaint should have recited facts underlying the retaliation claim flies in the face of this Court's admonition against "a requirement of fact-pleading." Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). In Bennett, this Court advised that "[b]ecause racial discrimination in employment is 'a claim upon which relief can be granted' . . . 'I was turned down for a job because of my race' is all a complaint has to say. . . . To the extent the district court required plaintiff to include in the complaint allegations sufficient (if proved) to prevail at trial, the court imposed a requirement of fact-pleading." Id. Retaliation against an employee for opposing conduct he objectively and reasonably believed in good faith to violate Title VII is "a claim upon which relief can be granted," and the Commission's amended complaint should not have been dismissed here. Concentra attempts to distinguish Bennett by arguing that a retaliation claim is somehow different from a race discrimination claim and therefore requires the plaintiff to plead a specific set of facts to support the allegation. Defendant brief at 9. As demonstrated above and in the Commission's opening brief, the amended complaint in this case does provide the specific facts regarding Concentra's illegal retaliation. See EEOC opening brief at 13. More importantly, however, under Bennett the "complaint is not required to allege all, or any, of the facts logically entailed by the claim. . . . A plaintiff does not have to plead evidence. . . . [A] complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing." 153 F.3d at 518 (emphasis added by Court) (citation and quotation omitted); see also Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) ("We have repeatedly stated that Rule 8 does not require plaintiffs to plead facts or legal theories."). Concentra's reliance on this Court's decision in Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002), is unavailing because that decision actually supports the Commission's position. In Higgs, this Court reversed a district court's "premature" dismissal of a complaint, noting that: A complaint that complies with the federal rules of civil procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts. The federal rules require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid. 286 F.3d at 439. Concentra has not demonstrated (nor can it) that the Commission's amended complaint fails to comply with the Federal Rules of Civil Procedure as interpreted by Higgs. Despite this Court's clear statement in Higgs of the relevant standard for assessing a motion to dismiss, Concentra points to language in the decision that "'[h]ad Higgs merely alleged that the defendants had retaliated against him for filing a suit, without identifying the suit or the act or acts claimed to have constituted retaliation, the complaint would be insufficient . . . .'" Defendant brief at 7-8 (quoting Higgs, 286 F.3d at 439) (emphasis in brief omitted). This Court, however, went on to explain that because "Higgs specified both the suit and the act of retaliation (namely placing him in lockdown segregation for 11 days)," the plaintiff had satisfied the pleading requirements of the federal rules. Higgs, 286 F.3d at 439. In this case, the Commission's amended complaint also specifies the protected conduct and the acts of retaliation (namely retaliating against Horn after he complained to the director of human resources about workplace conduct in violation of Title VII by issuing Horn unwarranted negative evaluations and terminating him). Concentra's reliance on Higgs is therefore to no avail, and the company's bold assertion that the Commission failed to provide "a shred of facts to illuminate" its claim is simply incorrect. Defendant brief at 8. Similarly, Concentra's reliance on Speedy v. Rexnord, 243 F.3d 397 (7th Cir. 2001), misses the mark. This Court's decision in Speedy noted that "federal notice pleading requires the plaintiff to set out in her complaint a short and plain statement of the claim that will provide the defendant with fair notice of the claim." Id. at 405. And, this Court broadly stated that the plaintiff's complaint "specifically references [plaintiff's] actions of assisting [others] in advancing their EEOC charges. This put [defendant] on notice that [plaintiff's] claim could include any activity which would fall under the participation provision of [Title VII]." Id. (emphasis added). The Commission's amended complaint in this case satisfies the standard set forth in Speedy as it provides proper notice to the defendant, specifically indicating the nature and time frame of the company's alleged retaliatory actions against Horn after he complained about conduct he reasonably and objectively believed to violate Title VII. The EEOC's amended complaint in this case pleaded a claim - retaliation - and gave the defendant clear notice of the nature and time period of the illegal conduct. Rule 8 requires nothing more. In the face of overwhelming authority to the contrary, the district court improperly imposed requirements for factual specificity not found in the federal rules or any other rule of law and thus erred in dismissing the Commission's amended complaint. B. The Complaint and Discrimination Charge Sufficiently Allege a Retaliation Claim Concentra argues, initially, that the district court properly considered Horn's charge - which was attached to the defendant's motion to dismiss but not to the EEOC's complaint - in granting the dismissal. Defendant brief at 11. Acknowledging the "general rule" that when "additional evidence is attached [to] a motion to dismiss, the court must either convert the 12(b)(6) motion into a motion for summary judgment under Rule 56" or "exclude the documents attached to the motion to dismiss and continue under Rule 12," 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002) (citation and quotation omitted), Concentra argues that this Court should apply a narrow exception because the charge was "referenced" by the EEOC and "central" to the Commission's amended complaint. Defendant brief at 11-12. The Commission referred to the charge in the amended complaint only to point out that all procedural requirements had been met in the case. See EEOC's First Amended Complaint at paragraph 6, Doc. No. 18; SA at 17 ("More than thirty days prior to the institution of this lawsuit, Horn filed a charge with the Commission alleging violations of Title VII . . . ."). However, the Commission did not refer to the substance of the charge, or set forth any of the allegations in it. Nonetheless, Concentra argues that the charge was "central" to the Commission's amended complaint because "without the Charge, there would have been no basis for the EEOC to bring this action." Defendant brief at 12. While the existence of the charge shows that a condition precedent to suit has been met, that does not render the charge a document central to the claim within the meaning of Trinity Industries. As this Court has recognized, an administrative charge only triggers the Commission's investigation, and does not limit the scope of the EEOC's claim. See EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir. 2005). Thus the charge does not perform the same type of substantive function this Court noted is served by a contract in a contract dispute, which is the type of document at which the narrow exception is targeted. Trinity Indus., 300 F.3d at 735; Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (This "narrow exception [is] aimed at cases interpreting, for example, a contract."). Nonetheless, even assuming that the district court properly considered the charge as part of the amended complaint, the court still improperly granted the defendant's motion to dismiss. A motion to dismiss should only be granted where "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Phelan v. Chicago, 347 F.3d 679, 681 (7th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This Court has stated that "[i]t is improper to retaliate against anyone for claiming a violation of Title VII unless that claim is completely groundless." Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (citation and quotation omitted). In assessing the sufficiency of a complaint, a court is required to consider factual scenarios that have not yet been adduced because discovery has not been completed. See Massey v. Merrill Lynch & Co., 464 F.3d 642, 645 (7th Cir. 2006). In its opening brief, the Commission asserted that there are several sets of facts consistent with the amended complaint that could support a viable claim of retaliation for opposing unlawful activity under Title VII. EEOC opening brief at 23. The Commission therefore argued that it would have been reasonable for Horn to believe that his supervisor's repeated sexual exploits - at least one of which he observed taking place on company property - either violated Title VII or would eventually violate the statute if the conduct continued. EEOC opening brief at 23- 30. In response, Concentra attacks the EEOC's brief as playing a "shell game." Defendant brief at 15. Concentra's "shell game" theory is premised on the argument that the EEOC is somehow limited to arguing only that Horn objected to paramour favoritism, Defendant brief at 15, 20, and must abandon all other possible theories of the nature of the conduct Horn opposed, regardless of whether they are consistent with the charge and amended complaint. In making this argument, Concentra lavishes much attention on the original complaint in the case, which did set forth the fact that Horn complained about his female supervisor's preferential treatment of a male subordinate. Defendant brief at 12. Because EEOC amended the complaint, after the court's dismissal, to omit specific reference to this fact, Concentra concludes that the Commission is being "downright evasive." Id. at 12. See also id. at 7 (arguing that "this Court should reject the EEOC's duplicitous attempt to re-cast its legally bankrupt theory of retaliation into something that it is not"). Concentra even sets forth the allegations in the original complaint and the amended complaint in a chart. Defendant brief at 12. This demonstrative exhibit, though interesting, is completely irrelevant. Concentra cannot now re-litigate the allegations in the original complaint. Indeed, Concentra already moved for dismissal of the original complaint, which was granted by the district court with leave to amend. See Concentra's May 3, 2005 Motion to Dismiss, Doc. No. 7; November 3, 2005 Memorandum Opinion and Order, Doc. No. 17; SA at 12, 15. The Commission altered its pleadings and refiled an amended complaint. See First Amended Complaint, Doc. No. 18; SA at 16. It is well-established that the company cannot now refer back to the original complaint for purposes of a motion to dismiss. As this Court has clearly stated: Once an amended pleading is filed, it supersedes the prior pleading. . . . The prior pleading is in effect withdrawn as to all matters not restated in the amended pleading, and becomes functus officio. Duda v. Bd. of Educ. of Franklin Park Pub. Sch., 133 F.3d 1054, 1057 (7th Cir. 1998) (citations and quotation omitted); see Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1204-05 (7th Cir. 1998) ("If certain facts or admissions from the original complaint become functus officio, they cannot be considered by the court on a motion to dismiss the amended complaint."); Lubin v. Chicago Title & Trust Co., 260 F.2d 411, 413 (7th Cir. 1958) ("It is hornbook law that an amended complaint complete in itself and making no reference to nor adopting any portion of a prior complaint renders the latter functus officio.").<1> Beyond arguing that the Commission is engaged in a confidence scam, Concentra also unsuccessfully attempts to show that the facts hypothesized in the EEOC's brief are insufficient to state a claim. Defendant brief at 16-19. In making this argument, Concentra maintains that "the quid pro quo sexual harassment scenarios" raised by the Commission "are inconsistent with the allegations in the First Amended Complaint and the Charge." Id. at 16.<2> There simply is no such inconsistency. Based on the amended complaint and the charge, it is entirely possible that, to the extent Horn's male subordinates were complaining to him about the preferential treatment received by Johnson, Horn was reasonably concerned that Varzino was either implicitly or explicitly requesting that these males also engage in sexual relations with her if they wanted to receive similar favors. Additionally, it cannot be determined from the amended complaint or charge whether there is any evidence that Horn was improperly propositioned by his supervisor to engage in a sexual relationship either implicitly or explicitly. At a minimum, such facts would certainly not be inconsistent with the charge or the amended complaint, as the charge itself identifies Varzino's propensity towards sexual activity in the workplace. See, e.g., Brown v. Budz, 398 F.3d 904, 912 (7th Cir. 2005) ("At this early stage of the proceedings, we take plaintiff's factual allegations as true, draw all reasonable inferences in his favor, and will hypothesize any set of facts consistent with those allegations to avoid dismissal."). Additionally, Concentra maintains that it is "preposterous" to believe that "the retaliation claim might also be premised on complaints about a hostile environment." Defendant brief at 17.<3> Again, the company asserts that there are insufficient facts in the charge or complaint to support such a claim, arguing that "there is no hint that these affairs were illegal in any way or that they were unwelcome." Id. at 18. Concentra simply misses the point. At this early stage of the proceedings, it cannot be determined whether there was any unwelcome conduct targeted at Horn. Horn's charge specifically says, "I believe I have been retaliated against for participating in Concentra's investigation into potential sexual harassment . . . ." See Charge, Exhibit A to Defendant's December 13, 2005, Memorandum in Support of Motion to Dismiss; Doc. No. 22; SA at 21-22. And, numerous facts may exist that support a claim as to the potential severity or pervasiveness of a hostile work environment. It is impossible to know at this stage of the litigation whether such facts exist, or whether Horn reasonably believed they existed, and they would in no way contradict the amended complaint or charge. See Graehling v. Village of Lombard, 58 F.3d 295, 298 (7th Cir. 1995) ("[a]s we keep stressing, the plaintiff is entitled to the benefit of all inferences--even to the benefit of hypothesized facts--at this early stage"). Moreover, as the Commission established in its opening brief, the conduct complained of need not actually rise to the level of a hostile work environment or other Title VII violation to support a viable retaliation claim. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994) (plaintiff "need not succeed on her sexual harassment claim to make out a prima facie case of retaliatory discharge"). Section 704(a) of Title VII prohibits discrimination against an individual "because he has opposed any practice made an unlawful employment practice" by Title VII. 42 U.S.C. § 2000e-3(a) (emphasis added). Individuals can "oppose" discrimination not only after a violation has occurred but also to prevent a violation from occurring. See Firestine v. Parkview Health Sys., 388 F.3d 229, 234 (7th Cir. 2004) ("even if the perceived act of discrimination does not reach a level where it affects the terms and conditions of employment, the employee may have a valid retaliation claim if the employer fires her for complaining about that act") (quotation omitted); Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 195-96 (7th Cir. 1994) (noting that complaint about a "single racist slur" was intended "to prevent similar comments in the future," and the district court did not err in concluding that the plaintiff reasonably believed the complained-of conduct was racially offensive). Thus, it would have been entirely reasonable for Horn to believe that his supervisor's multiple sexual relationships with company employees (at least one of which took place on company property) would eventually result in a violation of Title VII. Concentra responds to this Court's decisions in Firestine and Alexander by citing to actor Tom Cruise's performance in The Minority Report. See Defendant brief at 19 n.4. Concentra argues that "[h]olding someone to account for a wrong that might be committed in the future may be good fodder for a movie" but is a "fantastic" argument for the EEOC to assert. Id.<4> However fantastic the premise of The Minority Report, if a movie were based on the facts of this case, depicting a character protected from retaliation for objecting to an incipient hostile work environment, it would be a case of art imitating life by depicting the actual contours of retaliation law. This Court has made clear that the complained of act need not rise to the level of a Title VII violation, and a reasonable employee in this case could believe that Varzino's sexual exploits, if continued, might soon run afoul of the statute, if they did not already do so. Finally, even assuming that the Commission's amended complaint could in some way be read to allege only retaliation for complaining about sexual favoritism, such a result would not warrant dismissal of the complaint. It is impossible to know at this stage of the pleadings how that sexual favoritism manifested itself in the workplace, and whether Horn could reasonably and objectively believe such conduct to be in violation of Title VII because of its effect on other male and female employees. See Drinkwater v. Union Carbide, 904 F.2d 853, 861 (3d Cir. 1990); 29 C.F.R. § 1604.11(g); EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC Notice No. 915- 048 (1/12/90), available at http://www.eeoc.gov/policy/docs/sexualfavor.html. Despite Concentra's arguments to the contrary, Defendant brief at 14, 18-19, this Court has also suggested that, in the appropriate factual circumstances, favoritism can give rise to actionable sex discrimination in violation of Title VII. In Preston v. Wisconsin Health Fund, 397 F.3d 539, 541 (7th Cir. 2005), this Court stated its general rule that "favoritism resulting from a personal relationship" is not sex discrimination. However, the Court's analysis suggests that there are indeed scenarios where a supervisor's multiple sexual relationships could lead to a violation of the statute. Id. In fact, this Court even specified what type of evidence would have to be adduced to establish such a claim: [Plaintiff] tries to bolster his case by pointing to the fact that [the CEO] gave large raises to several women and by noting that there was even talk in the workplace of "[the CEO] and his harem.". . . To infer discrimination we would need to know . . . the sex composition of the [employer's] workforce, whether there were men who had jobs comparable to those of the five women but didn't get similar raises, and whether the raises were due to women's being promoted to new jobs and if so whether men had a fair opportunity to compete for those promotions. Id. Though the plaintiff in Preston was unable to provide evidence establishing sex discrimination, this Court's reasoning certainly supports the view that such evidence could exist in a favoritism case. In this case Horn alleged in his charge that his supervisor engaged in affairs with multiple company employees, and that he received complaints about her preferential treatment of one of the employees. See Charge, Exhibit A to Defendant's December 13, 2005, Memorandum in Support of Motion to Dismiss; Doc. No. 22; SA at 21-22. Facts may exist, then, to demonstrate that Varzino's sexually charged conduct and favoritism resulted in sex discrimination. At a minimum, Horn could reasonably and objectively have believed that Varzino's conduct either violated the statute or would eventually lead to a violation if not corrected by the company. In sum, Concentra's argument that there is no set of facts that could support the Commission's retaliation claim is without merit. The Commission provided various hypothetical scenarios consistent with the amended complaint and charge in this case that would support a viable claim of retaliation under Title VII. CONCLUSION The amended complaint in this case provided the defendant with proper notice of the retaliation claim against it, as it clearly set forth the nature and time frame of the illegal conduct. The amended complaint also sufficiently stated a claim for which relief could be granted - retaliation. The Commission has adequately satisfied the liberal pleading requirements of the federal rules, and respectfully requests that the district court's decision be reversed, and that the Commission's case against Concentra be reinstated. Respectfully submitted, RONALD S. COOPER General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 CAROLYN L. WHEELER (202) 663-4772 Assistant General Counsel joseph.seiner@eeoc.gov ____________________________ JOSEPH A. SEINER Attorney CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,379 words, 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. _________________________________ Joseph A. Seiner Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov CERTIFICATE OF SERVICE I, Joseph Seiner, hereby certify that I filed one original and 14 copies of the foregoing reply brief and one copy of the digital version of the reply brief on diskette with this Court this 21st day of March, 2007, by causing them to be sent via Federal Express next business day service. I also certify that I served two copies of the foregoing reply brief and one copy of the digital version of the reply brief on diskette this 21st day of March, 2007, by causing them to be sent via Federal Express next business day service to the following counsel of record: James J. Oh LITTLER MENDELSON 200 N. LaSalle Street Chicago, IL 60601-1014 ________________________________ Joseph A. Seiner Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4772 joseph.seiner@eeoc.gov March 21, 2007 *********************************************************************** <> <1> Concentra maintains that the Commission argued that EEOC v. Waffle House, 534 U.S. 279 (2002), and this Court’s decision in Caterpillar stand for the proposition that “because it is the master of its own case, [the EEOC] can, after having its Complaint dismissed, say ‘that’s not what we meant to say in the Complaint. What we really meant was X.’” Defendant brief at 19-20. This is simply not what the EEOC argued. Rather, the Commission correctly asserted that the scope of the Commission’s case is not limited to what is set forth in the four corners of the complainant’s charge. See EEOC opening brief at 26-27. <2> Concentra also boldly accuses the EEOC of fashioning the sexual harassment facts “out of whole cloth for the first time on appeal.” Defendant brief at 16. However, the Commission clearly raised this theory in its response to Concentra’s motion to dismiss the first amended complaint, stating that, “Horn did not allege that any of these affairs [between Varzino and other employees] were consensual, yet Defendant presumes the affairs were consensual without any facts to support such a claim.” Doc. No. 24 at p. 9 (emphasis in original). The Commission also identified in its response below the relevant standard that the court “cannot dismiss this case because it is clearly possible to hypothesize a set of facts under which Horn was retaliated against for opposing conduct that he reasonably believed violated Title VII.” Id. at 11. <3> Concentra also appears confused as to whether the Commission alleges a retaliation claim or a hostile work environment claim. See Defendant brief at 17 n.2 (“There is no way Concentra could know . . . that quid pro quo harassment was a potential claim in this case or was a possible basis for Horn’s complaint to Human Resources.”). The amended complaint in this case clearly sets forth retaliation as the only theory alleged. See EEOC’s First Amended Complaint at paragraph 7, Doc No. 18; SA at 17-18. See also McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir. 1996) (“The two types of claim, harassment (or other employment discrimination) and retaliation for complaining about or opposing the harassment, are independent. It is improper to retaliate for the filing of a claim of violation of Title VII even if the claim does not have merit--provided it is not completely groundless.”). <4> It is bewildering that Concentra would consider this argument “fantastic” given that the district court in this case even acknowledged that the complained of conduct need not rise to the level of a Title VII violation to be protected. See July 12, 2006 District Court order at 10, Doc. No. 28; SA at 36 (“The conduct at issue must actually be prohibited by Title VII in order to form the basis for a retaliation claim, though it does not have to rise to the level of being actionable alone.”).