Table of Authorities............................................................................... iii

Statement of Interest................................................................................ 1

Statement of the Issues............................................................................ 2

Statement of the Case.............................................................................. 2

A. Statement of Facts......................................................................... 2

B. District Court’s Decision............................................................. 12

Summary of Argument......................................................................... 14

Argument............................................................................................... 16

I. A reasonable jury could find that Coleman endured a severe or pervasive hostile work environment where his coworkers

directed the n-word to him “all the time,” and he regularly

heard his coworkers and his supervisor make additional racial slurs............................................................................... 17

A. Contrary to the district court’s understanding, Coleman’s coworkers made discriminatory remarks directly to him.................................................................. 18

B. The district court erroneously discounted the effect on Coleman of overhearing discriminatory comments

directed at others.............................................................. 21

C. The district court usurped the function of the jury by

rejecting Coleman’s testimony as not credible.............. 26

D. Title VII does not require Coleman to show that his work performance suffered in order to state a claim of actionable harassment..................................................... 27

II. A reasonable jury could find that Miquon knew or should have known about the ongoing harassment based on Coleman’s repeated complaints and the pervasiveness of the offensive conduct, yet failed to take appropriate corrective action...................................................................... 29

Conclusion.............................................................................................. 35

Certificates of Counsel

Certificate of Service

Table of Authorities

Cases

Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998).... 26

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996)....... 22

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................. 26

Anderson v. Wachovia Mortg. Corp., 621 F.3d 261 (3d Cir. 2010)......... 22

Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990)........................ 23

Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005)........................... 23

Castleberry v. STI Grp., 863 F.3d 259 (3d Cir. 2017)............................. 21

Dawson v. Cty. of Westchester, 373 F.3d 265 (2d Cir. 2004).................. 24

Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994)............... 27

Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014)................................. 24, 34

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)........................... 16, 27, 28

Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428 (5th Cir. 2005).. 27, 31

Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987).................... 24

Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999)........... 24

Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100

(3d Cir. 2009).................................................................................... 30, 33

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999).......................... 24

Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) (en banc)........ 24

Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006)................................... 21, 28

Kunin v. Sears Roebuck & Co., 175 F.3d 289 (3d Cir. 1999).................. 33

Mandel v. M & Q Packaging Corp., 706 F.3d 157 (3d Cir. 2013).... 16, 25, 28

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)........................... 16

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).............. 19

Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112 (2d Cir. 2010)................................................................................................................. 26

Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010)

(en banc)........................................................................................... 20, 25

Ross v. Douglas Cty., 234 F.3d 391 (8th Cir. 2000)................................ 19

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)............... 20

Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001)....................... 20

Tolon v. Cotton, 572 U.S. 650 (2014)...................................................... 17

Vance v. Ball State Univ., 570 U.S. 421 (2013)....................................... 29

West v. Phila. Elec. Co., 45 F.3d 744 (3d Cir. 1995)............................... 34

Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir. 2007).................... 20

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq...... 1

§ 2000e-2(a)................................................................................... 16

Rules

Federal Rule of Appellate Procedure 29(a)........................................... 1

Administrative Authority

EEOC Compl. Man. § 15-V(A)(2), Race and Color Discrimination: Evaluating Employment Decisions, 2006 WL 4673428 (June 1, 2006)................................................................................................................. 22

EEOC Compl. Man. § 15-VII(A), Race and Color Discrimination:

Equal Opportunity for Job Success, 2006 WL 4673430 (June 1, 2006)........................................................................................................... 25, 29

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court in this case significantly misconstrued and misapplied Title VII’s protections against discriminatory hostile work environments. The court misstated the evidence, ignored the uniquely offensive nature of the n-word, downplayed the effect on Coleman of overhearing racist comments that were not directed at him, required too much specificity about when alleged racist comments occurred, and erroneously emphasized that Coleman had not shown an adverse impact on his work performance. Moreover, the court wrongly concluded as a matter of law that even if Coleman could establish a hostile work environment, there was no basis for holding Miquon liable.

The EEOC has a significant interest in the proper interpretation of federal anti-discrimination statutes. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issues[1]

1. Could a reasonable jury find that Coleman was subjected to a discriminatory hostile work environment where his coworkers directed the n-word to him “all the time,” and he regularly heard his coworkers and his supervisor make additional racial slurs?

2. In light of Coleman’s repeated complaints and the pervasiveness of the offensive conduct, could a reasonable jury find that Miquon knew or should have known about the ongoing harassment yet failed to take appropriate corrective action?

Statement of the Case

A. Statement of Facts

Defendant Miquon Inc. owns and operates a restaurant called Delaney’s in Cape May, New Jersey. App. 385 (Slawek Decl.). Cape May is a summer resort town, and Delaney’s generates the bulk of its income during the summer. Id. At the height of the summer season, Miquon employs one hundred people. Id. at 386.

In July 2015, Miquon hired plaintiff Justin Coleman as a bartender. Id. Coleman, a black male, worked for Delaney’s for eleven weeks before being laid off in mid-September. Id. at 387-88. He alleges in part that, throughout his employment, he was subjected to a hostile work environment on the basis of his race. App. 212 (Coleman Dep.).

On his first day of work, Coleman testified, coworker Tracy Venturi asked him, “What are you doing here? They don’t hire black bartenders. The last one didn’t work out. This is an Irish pub.” Id. at 202. Soon thereafter, Miquon moved Coleman out of the bartender position and made him a server. Id. at 221-22, 245. Miquon asserts that it had misjudged the number of bartenders it would need, App. 387 (Slawek Decl.), but Coleman testified that Miquon subsequently brought in white bartenders to take his place. App. 222 (Coleman Dep.).

Coleman also stated that coworkers Venturi, Eric Bednar, Vadim Bondarenko, and Tyler (last name unknown) “quite frequently” said the n-word and variations including “yo n***a” and “my n***a” in his presence. Id. at 208-11; App. 403, 407 (Coleman Interrog. Resp.). Bednar, especially, used the n-word “all the time,” both to Coleman directly in conversation and when standing right next to him. App. 209-11 (Coleman Dep.). Coworker Serafina Moore, who was black, whispered the n-word into Coleman’s ear “all the time” as a “joke” because she knew that it bothered him. App. 291-92 (Nielson Dep.); App. 176 (Slawek Letter to EEOC). Indeed, Coleman testified, “I never interpret any type of ignorance or racial slurs as a joke…. They’re derogatory.” App. 211 (Coleman Dep.).

According to Coleman, coworkers and general manager Ed Nielson made additional racist comments. Once, when she got into an argument with a customer, Venturi said, “Don’t make me get black on you,” which Coleman interpreted as her suggestion that she would become hostile and get into a fight. Id. at 204-05. Nielson and multiple coworkers referred to African Americans as “they” and “you people.” Id. at 215; App. 403-04, 407 (Coleman Interrog. Resp.). Whenever anyone—even a customer—turned on the jukebox with rap or, indeed, any music by any artist of color, Nielson would lower the volume, turn it off, or drown it out with other music. App. 216-18 (Coleman Dep.); App. 157 (Ashley Coleman Aff.). Coleman and his cousin Ashley, who was a coworker, testified that Nielson told staff, “Don’t play that type of music. No black music,” and threatened to fire “the next person that plays this shit.” App. 404, 406-08 (Coleman Interrog. Resp.); App. 217 (Coleman Dep.); App. 157 (Ashley Coleman Aff.). Nielson denied this. App. 289-90 (Nielson Dep.)

Slawek testified that Miquon discussed “not talking meanly towards anybody, no racial profanity, etc.” every day, App. 366 (Slawek Dep.), but Coleman and his cousin Ashley both stated that racially offensive language was never discussed. App. 213 (Coleman Dep.); App. 145 (Coleman Decl.); App. 157 (Ashley Coleman Aff.). The employee handbook says nothing specifically about harassment, stating only, “We don’t tolerate discrimination of any kind, including but not limited to the following[:] age, race, gender, or religion.” App. 164-68. There is no human resources department, App. 299 (Nielsen Dep.), and neither supervisors nor employees are trained regarding discrimination. Id. at 305; App. 157 (Ashley Coleman Aff.).

Nor does the handbook tell employees how to complain. App. 297 (Nielson Dep.). Nielson testified that he told everyone that he was always available to discuss “any issue,” and he said that Michael Slawek, Miquon’s sole shareholder, was always available as well. Id. at 297-99. The unwritten policy, he said, was that employees should complain about discrimination to him, to an assistant manager, or to Slawek. Id. Miquon did not train its managers on how respond to such a complaint. Id. at 304-06; App. 264 (Hornbeck Dep.).

Coleman stated that he complained verbally on four occasions: twice to assistant manager Bob Jacobs, once to Nielson, and once to assistant manager Bobbie Hornbeck. App. 212 (Coleman Dep.); App. 405 (Coleman Interrog. Resp.). He said in his response to interrogatories that he made these verbal complaints in the final month of his employment, App. 405, but he testified in his deposition that he could not recall the timing. App. 212.

First, Coleman complained to Jacobs. App. 212 (Coleman Dep.); App. 405 (Coleman Interrog. Resp.). He told Jacobs that “way too many people here make racial comments at work and it makes me uncomfortable. It’s frustrating because the management doesn’t do anything about it.” App. 405 (Coleman Interrog. Resp.). Jacobs responded that they could discuss this at a staff meeting but, Coleman said, that never happened. Id. at 405-06. Although he said that he complained to Jacobs twice, id. at 405, the record contains no details about his second complaint.

Next, he complained to Nielson. App. 213 (Coleman Dep.). He told Nielson that “people are way too comfortable here using racial slurs and it’s frustrating.” Id. Nielson did not respond. Id. Coleman also told Nielson that it was inappropriate for a manager to say “no black music.” App. 406 (Coleman Interrog. Resp.). Nielson replied, “It’s just jokes,” to which Coleman said, “I don’t think it’s funny.” Id. Nielson denied that this conversation ever took place. App. 300 (Nielson Dep.).

Finally, Coleman complained to Hornbeck that “the amount of people who use the n-word and make racial comments is frustrating.” App. 406 (Coleman Interrog. Resp.); App. 213 (Coleman Dep.). Hornbeck replied, “you just need to try to ignore it.” App. 406 (Coleman Interrog. Resp.); App. 213 (Coleman Dep.). Hornbeck denied that Coleman ever complained to her about anything other than his frustration with customers. App. 268-69 (Hornbeck Dep.).

Coleman did not talk to Slawek about harassment, but he did ask Jacobs whether he could speak with Slawek about being reprimanded for using his cellphone when a white employee was not. App. 219-20, 232 (Coleman Dep.); App. 406, 408 (Coleman Interrog. Resp.). According to Coleman, Jacobs told him that if he were to talk to Slawek, Slawek would “cuss me out or yell at me.” App. 232-33 (Coleman Dep.).

Miquon contends that Coleman never complained about harassment but concedes that an anonymous employee complained in mid-July about racist comments. App. 389 (Slawek Decl.). Slawek suspected that the anonymous employee may have been Coleman, but he never verified his suspicion. App. 370 (Slawek Dep.). He testified that, upon receiving the complaint, he instructed Nielson to discuss discrimination during a daily staff meeting, which Nielson said he did the next day. App. 389 (Slawek Decl.); App. 325-27 (Nielson Dep.). But Coleman and his cousin Ashley both stated that racially offensive language was never discussed in any staff meeting. App. 213 (Coleman Dep.); App. 145 (Coleman Decl.); App. 157 (Ashley Coleman Aff.). Nielson acknowledged that he never attempted to discover who had made the racially offensive remarks, saying that he felt there was “no need.” App. 327 (Nielson Dep.)

Managers were present on the restaurant floor, App. 263 (Hornbeck Dep.), and so would have witnessed racist remarks occurring there. App. 263 (Hornbeck Dep.). Slawek testified that, following the anonymous complaint, he put his managers on “full alert” for racial harassment. App. 370 (Slawek Dep.). He also testified that he instructed his managers to terminate anyone who engaged in such conduct, whether they were joking or not. Id. at 370-71.

On Saturday, September 19, 2015, Coleman mailed Slawek a certified letter, return-receipt requested, in which he complained that he was being racially harassed. App. 153-54 (Letter); App. 228 (Coleman Dep.). The letter began, “There was no afforded forum to directly bring the concerns to your attention, hence this letter.” App. 153. Coleman addressed the letter not to Miquon, but to a separate establishment that Slawek co-owns with his father. App. 392 (Slawek Decl.); App. 359 (Slawek Dep.). Slawek testified that he did not see the correspondence until after Coleman’s termination, App. 359-60 (Slawek Dep.), and Coleman did not produce a return receipt. App. 392 (Slawek Decl.).

The same day that Coleman sent Slawek a letter, he also emailed Heidi DiLarso, who was in charge of payroll, about racial harassment. App. 160-61 (Email). His email said, “I was told there is no human resources or personnel area … so I have a few major concerns that I would like to talk to you about, in confidentiality[,] I have experienced working at Delaney’s. I don’t feel comfortable going to management about the concerns because either some have been directly involved and/or have [been] made aware and not addressed the matter.” Id. at 160. Rather than sending the email to DiLarso’s professional account, he sent it to a personal account that she checked at most every two to three weeks. App. 333, 335-36 (DiLarso Dep.). DiLarso testified that she never saw the email. Id. at 334-35.

On Monday, September 21, 2015, Miquon terminated Coleman. App. 392 (Slawek Decl.). He was one of fifty-five employees that Miquon let go at the end of the summer season. Id. at 391.

In March 2016, Coleman filed a Title VII charge with the EEOC. App. 428 (Amended Compl.). Slawek told the EEOC in connection with this charge, “As to the accusation of the n-word, when we told this to his two relatives,[2] [Moore] and Ashley, [Moore] laughed and said that was her—she whispers that in his ear to Justin because she knows it bothers him, and it was a joke. She does it all the time to him.” App. 176 (Slawek letter); App. 291 (Nielson Dep.). Notwithstanding Slawek’s assertion that he had instructed his managers to terminate anyone who engaged in racial harassment, App. 370-71 (Slawek Dep.), Nielson did not terminate or discipline Moore. Instead, he simply told her, “I don’t like that.” App. 292 (Nielson Dep.).

Coleman filed suit under Title VII, raising claims for a hostile work environment and discriminatory and/or retaliatory termination. App. 427 (Amended Compl.). Miquon moved for summary judgment, and the district court granted the motion. App. 3.

B. District Court’s Decision

The district court granted summary judgment on all of Coleman’s claims. With respect to the hostile work environment claim, the court initially said that Coleman testified to “frequent[ ]” racial epithets, App. 6, but later characterized his testimony as “depict[ing] sporadic use of racist slurs by non-managerial employees.” App. 22. Coleman did not “identif[y] language that was intentionally used against him because of his race,” the court said, or “show that the racist language was weaponized.” Id. The court added that Coleman “was unable to place the utterances into a context or give a timeframe,” and could not recall when he made verbal complaints. Id. Moreover, the court said, the record is devoid of evidence that the conduct interfered with Coleman’s work performance. Id. Accordingly, the court held, Coleman could not show that the conduct was sufficiently severe or pervasive to establish a hostile work environment. App. 21.

Even if Coleman had been able to show a hostile work environment, the court continued, Miquon would not be liable. App. 22-24. The standard for liability, the court stated, was whether Miquon knew or should have known of the harassment and failed to take adequate remedial action. App. 23. The court refused to consider Coleman’s four verbal complaints because he could not recall when he made them, App. 10, and refused to consider his two written complaints because Slawek and DiLarso testified that they did not receive them. App. 11-12.

Thus, the court rested its entire analysis on Miquon’s alleged response to the anonymous complaint. The court accepted as fact that Nielson conducted a meeting “to reinforce Delaney’s policy that racially offensive language or conduct is not tolerated,” App. 11, and stated that neither Nielson nor Slawek received further complaints. App. 23. Accordingly, the court concluded, “there is no genuine issue as to any material fact regarding whether Miquon knew of the alleged harassment and failed to take prompt and adequate remedial action.” App. 23-24.

Summary of Argument

The district court erred in concluding that Coleman could not show severe or pervasive racial harassment. The court ignored evidence that Coleman’s coworkers targeted him with the n-word “all the time”—conduct that a reasonable jury could find was, standing alone, both severe and pervasive. The court also mistakenly downplayed evidence of racist comments that were not directed at Coleman but that he overheard. The court erroneously concluded that Coleman had alleged only “sporadic” racial slurs, failing to credit his testimony that he heard racial slurs “all the time” throughout his employment. Finally, the court wrongly emphasized Coleman’s failure to show any effect on his work performance, when this is not a required element of a hostile work environment claim. Viewing the evidence in the light most favorable to Coleman, a reasonable jury could find that he endured severe or pervasive harassment because of his race.

The district court also erred in holding that Miquon could not be liable for the harassment. A reasonable jury could find that Miquon knew or should have known about it yet failed to take appropriate remedial action. Miquon had no clear policy against harassment, no human resources department, and nothing in its employee handbook about a complaint procedure. Coleman testified that he complained verbally to three different supervisors about racial harassment and none took action. The court should not have disbelieved him based on his uncertainty about when he complained; credibility determinations are for the jury and not the court on summary judgment. Nor should the court have blamed Coleman for sending his written complaints to the wrong places, as Miquon had no procedures to guide him. Even without his complaints, a jury could find that Miquon knew or should have known about the harassment because it was pervasive and open. Moreover, a jury could find that Nielson was complicit in the racial hostility.

Contrary to the district court’s conclusion, a jury could also find that Miquon did not respond appropriately—or at all—to the anonymous complaint. Even though Slawek claimed that Miquon discussed “not talking meanly towards anybody, no racial profanity” in daily staff meetings, Coleman and Ashley testified that no staff meeting ever addressed racial harassment. Later, Nielson did not discipline Moore when he learned that she had whispered the n-word into Coleman’s ear. A reasonable jury could infer from this that Slawek never actually instructed his managers to terminate anyone who engaged in racial harassment, or that, even if he did so, Nielson felt free to disregard the instruction.

Argument

Title VII prohibits employers from subjecting employees to a hostile work environment based on their race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). To be actionable, a hostile work environment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 67). Here, the district court held that no reasonable jury could find severe or pervasive harassment. The court was wrong.

As this Court has held, actionable harassment also requires a plaintiff to establish respondeat superior liability. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). The district court held that even if Coleman could establish a hostile work environment, Miquon could not be liable. According to the court, there was “no genuine issue as to any material fact regarding whether Miquon knew of the alleged harassment and failed to take prompt and adequate remedial action.” App. 23-24. The court was wrong about this as well.

I. A reasonable jury could find that Coleman endured a severe or pervasive hostile work environment where his coworkers directed the n-word to him “all the time,” and he regularly heard his coworkers and his supervisor make additional racial slurs.

The district court’s holding that Coleman could not establish severe or pervasive harassment rests on both factual and legal errors. Factually, the court overlooked and/or minimized Coleman’s evidence and failed to view it in the light most favorable to him, as required on summary judgment. See Tolon v. Cotton, 572 U.S. 650, 651 (2014). Legally, the court imposed too high a standard on Coleman and did not consider the totality of the circumstances. For the following reasons, this Court should vacate the award of summary judgment.

A. Contrary to the district court’s understanding, Coleman’s coworkers made discriminatory remarks directly to him.

The district court erroneously stated that “Coleman himself was never referred to in a racially insensitive manner.” App. 6. In fact, Coleman testified that Bednar used the n-word “all the time” in conversation with him, and Miquon admitted that Moore whispered the n-word into his ear “all the time” because she knew it bothered him. App. 209-11 (Coleman Dep.); App. 291-92 (Nielson Dep.); App. 176 (Slawek Letter to EEOC). Moore may have intended the n-word as a joke, but Coleman did not take it that way. He testified, “I never interpret any type of ignorance or racial slurs as a joke…. They’re derogatory.” App. 211 (Coleman Dep.).

The fact that Moore, too, was black does not negate the offensiveness of her conduct. In holding more than twenty years ago that same-sex harassment is actionable under Title VII, the Supreme Court observed: “[I]n the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. ‘Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Castenada v. Partida, 430 U.S. 482, 499 (1977)); see also Ross v. Douglas Cty., 234 F.3d 391, 396 (8th Cir. 2000) (“Given the Oncale decision, we have no doubt that, as a matter of law, a black male could discriminate against another black male ‘because of such individual’s race.’”).

In stating that “Coleman himself was never referred to in a racially insensitive manner,” App. 6, the district court may have meant that no one called Coleman himself a “n****r.” If so, that distinction is indefensible. Coleman could reasonably have interpreted the n-word to include him because, as a black man, he was part of the group that the word is intended to cover.

The Eleventh and Seventh Circuits have explained in the related context of sex discrimination why a woman would reasonably be offended by slurs against women as a group. “It is enough to hear co-workers on a daily basis refer to female colleagues as ‘bitches,’ ‘whores’ and ‘cunts,’ to understand that they view women negatively, and in a humiliating or degrading way. The harasser need not close the circle with reference to the plaintiff specifically: ‘and you are a “bitch” too.’” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc); see also Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (“[T]he line that runs between ‘you are a bitch’ and ‘all women are bitches [and you are a woman (understood)]’ is quite a fine one ….”) (brackets in original).

The n-word is “perhaps the most offensive and inflammatory racial slur in English … a word expressive of racial hatred and bigotry.” Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) (quoting Merriam-Webster’s Collegiate Dictionary 784 (10th ed. 1993)). “Far more than a ‘mere offensive utterance,’ the word ‘nigger’ is pure anathema to African-Americans.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)). This Court has recognized that the n-word is so “severe” that, depending on the context, “it is clear that one such instance can suffice to state a claim.” Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017).

Thus, it was not necessary for Coleman to make any special showing “that the racist language was weaponized.” App. 22 (Sum. J. Op.). The n-word is a weapon by its very nature. Given the frequency with which Coleman’s coworkers targeted him with the word, a reasonable jury could find that this behavior, standing alone, constituted both severe and pervasive harassment. This is more than Title VII requires. See Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006) (“severe or pervasive” is disjunctive test), overruled in part on other grounds.

B. The district court erroneously discounted the effect on Coleman of overhearing discriminatory comments directed at others.

In addition to the racist language that Bednar and Moore directed at him, Coleman regularly overheard racist comments addressed to other people. Four coworkers “quite frequently” said the n-word and variations including “yo n***a” and “my n***a” in his presence. App. 208-11 (Coleman Dep.); App. 403, 407 (Coleman Interrog. Resp.). This alone is sufficient for a reasonable jury to find a racially hostile work environment. Additionally, Coleman’s supervisor threatened to fire staff for playing “black music.” App. 404, 406-08 (Coleman Interrog. Resp.); App. 217 (Coleman Dep.); App. 157 (Ashley Coleman Aff.). And multiple coworkers and his supervisor referred to African Americans as “they” and “you people.” App. 215 (Coleman Dep.); App. 403-04, 407 (Coleman Interrog. Resp.).

This Court has long recognized that terms such as “they” and “you people” can be code words for race. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 275 (3d Cir. 2010) (“you people”). Indeed, in Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996), this Court held that “another one,” “one of them,” “that one in there,” and “all of you” are “inherently racist remarks.” Id. at 1082; see also EEOC Compl. Man.

§ 15-V(A)(2), Race and Color Discrimination: Evaluating Employment Decisions, 2006 WL 4673428, at text accompanying n.47 (June 1, 2006) (“Race-related statements include not only slurs and patently biased statements, but also ‘code words’ that are purportedly neutral on their face but which, in context, convey a racial meaning.”) (citing cases).

The district court wrongly refused to consider comments that Coleman overheard because the language was not “intentionally used against him.” App. 22. However, under this Court’s precedent, a jury could find that, even without being directed at Coleman, these comments contributed to the hostility of his work environment.

This Court has recognized that “comments referring to other individuals that were merely overheard” are relevant to a hostile work environment claim, Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005), although it has deemed them insufficient to create a hostile work environment on their own. Id. Caver does not stand alone. Thirty years ago, this Court recognized that the posting of pornography can contribute to a hostile work environment for a female employee. Andrews v. City of Phila., 895 F.2d 1469, 1485-86 (3d Cir. 1990), superseded by statute on other grounds. And, twenty-one years ago, this Court held that witnessing an employer’s hostility to other female employees can contribute to the hostility of an individual woman’s hostile work environment. Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 110 (3d Cir. 1999), abrogated by state law on other grounds.

No appellate court of which we are aware has held, as did the district court here, that such conduct is irrelevant to a hostile work environment claim. “Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.” Dawson v. Cty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (citation omitted). See also Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (relevance of discriminatory comments directed at other employees is “clear”); Jennings v. Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (Title IX case relying on Title VII law to consider “general atmosphere of hostility toward those of the plaintiff’s gender”); Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999) (“[R]acial epithets need not be hurled at the plaintiff in order to contribute to a work environment that was hostile to her.”); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (“general work atmosphere” is “important factor”); see also EEOC Compl. Man. § 15-VII(A), Race and Color Discrimination: Equal Opportunity for Job Success, 2006 WL 4673430 (“EEOC Compl. Man. § 15-VII(A)”), at text accompanying n.120 (citing cases).

Indeed, the Eleventh Circuit holds that comments directed at others are sometimes enough on their own to violate Title VII. “[W]ords and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment,” the Court said, “even if the words are not directed specifically at the plaintiff.” Reeves, 594 F.3d at 811.

Accordingly, the district court erred by discounting the effect of race-based comments that were not directed at Coleman, but which he overheard. Such comments are part of the “totality of the circumstances” under which this Court must evaluate Coleman’s claim. See Mandel, 706 F.3d at 168.

C. The district court usurped the function of the jury by rejecting Coleman’s testimony as not credible.

The district court also erred by requiring Coleman to “place the utterances into a context [and] give a timeframe.” App. 22. While detailed testimony regarding the context of the harassment might strengthen his case, his lack of specificity “goes [only] to the weight of [his] testimony.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998). Weighing the evidence is, of course, solely for the finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

With respect to the timeframe, Coleman testified that his coworkers used racial slurs, including the n-word, “all the time.” App. 209-11 (Coleman Dep.). But see App. 22 (Sum. J. Op.) (“The frequency of the conduct identified by Coleman is insufficient to establish a hostile working environment ….”). He also testified that the harassment continued throughout his employment. App. 212 (Coleman Dep.). A jury could credit these assertions. See Pucino v. Verizon Wireless Commc’ns., Inc., 618 F.3d 112, 118 (2d Cir. 2010) (plaintiff may “establish the frequency of the abuse simply by stating in her affidavit that the alleged abuse occurred ‘constantly’ or ‘frequently’”); Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005) (“Harvill’s assertions that she was touched ‘numerous times’ instead of providing exact dates or the exact number of instances do not render her allegations so conclusory that they fail to create a genuine issue of material fact.”); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (jury not limited to considering only the five incidents to which plaintiff testified with specificity because plaintiff testified to “almost daily comments, gestures, and innuendo of a sexual nature whenever [harasser] was in the office”).

D. Title VII does not require Coleman to show that his work performance suffered in order to state a claim of actionable harassment.

Finally, the district court erred by highlighting the lack of evidence that Coleman’s work performance suffered. App. 22. The Supreme Court has acknowledged that “[a] discriminatorily abusive work environment … can and often will detract from employees’ job performance,” Harris, 510 U.S. at 22, but has made clear that a hostile work environment is actionable under Title VII even when it does not do so. “[E]ven without regard to … tangible effects,” the Court explained, “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” Id.

Thus, while interference with work performance may help to show a hostile work environment, it is not an indispensable element of such a claim. See Mandel, 706 F.3d at 168 (plaintiff may have been “detrimentally affected” by harassment despite lack of evidence that her work performance suffered); Jensen, 435 F.3d at 451-52 (“No one factor is dispositive, and the analysis must focus on the ‘totality of the circumstances.’”) (citation omitted). What matters is only whether the discriminatory conduct is sufficiently severe or pervasive, viewed as a whole, to create an abusive work environment. See Harris, 510 U.S. at 22-23.

The district court erred in holding that, even if Coleman could establish a hostile work environment, Miquon could not be held liable. Contrary to the court’s reasoning, a reasonable jury could find that Miquon knew or should have known about the ongoing harassment and failed to take appropriate corrective action.

Employers are liable under Title VII for their own negligence regarding coworker harassment. “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant” to liability. Vance v. Ball State Univ., 570 U.S. 421, 449 (2013). Employers must “be vigilant enough to detect harassing conduct that [they] reasonably should know about even without a complaint.” EEOC Compl. Man. § 15-VII(A)(3), 2006 WL 4673430, at text accompanying n.144.

Once an employer knows or should know about harassment, it must “take prompt and appropriate remedial action.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). Such action must be “reasonably calculated to prevent further harassment.” Id. at 110.

A reasonable jury could find that Miquon failed on all counts. First, it had no clear policy against harassment and no human resources department. App. 293-94, 297-99 (Nielson Dep.). The employee handbook says only, “[W]e don’t tolerate discrimination of any kind,” and is silent about harassment, even though it explicitly lists other forms of prohibited conduct. App. 164-68. It says nothing about what an employee should do if he feels that he has experienced discrimination. Id. Nielson testified about an informal policy that employees should complain to him, an assistant manager, or Slawek, but he conceded that supervisors were not trained about what to do if they received such a complaint. App. 297-99, 305-06 (Nielson Dep.).

In the absence of a policy against harassment or an established complaint procedure, Coleman had reason to believe that Slawek would not be receptive to a complaint. When he sought to complain to Slawek about discrimination in another context, Nielson told him that if he were to talk to Slawek, Slawek would “cuss me out or yell at me.” App. 232-33 (Coleman Dep.).

Coleman did complain verbally to three different supervisors about the racial harassment. Id. at 212. None took any action in response. App. 405-06 (Coleman Interrog. Resp.). Indeed, when Coleman told Hornbeck that “the amount of people who use the n-word and make racial comments is frustrating,” Hornbeck told him, “you just need to try to ignore it.” Id. at 406; App. 213 (Coleman Dep.).

The district court refused to consider these verbal complaints at all because Coleman could not recall precisely when he made them. App. 10. However, Coleman stated in his response to interrogatories that he made all four complaints (two to Jacobs and one each to Nielson and Hornbeck) during his last month of employment. App. 405. It was inappropriate for the court to discredit these assertions on summary judgment. See Harvill, 433 F.3d at 436 (“Whether her allegations are too vague to ultimately carry the day is a credibility determination, or requires weighing the evidence, both of which are more appropriately done by the trier of fact.”).

The district court also refused to consider Coleman’s written complaints because there was no evidence that Slawek or DiLarso received his correspondence. App. 11-12. However, a reasonable jury could find that Coleman was not to blame for Miquon’s failure to establish procedures for handling written harassment complaints. He explained in his letter to Slawek that “[t]here was no afforded forum to directly bring the concerns to your attention, hence this letter,” App. 153, and said in his email to DiLarso, “I was told there is no human resources or personnel area … so I have a few major concerns that I would like to talk to you about.” App. 160-61. If he sent his complaints to the wrong addresses, a jury could find, this was hardly surprising given that Miquon’s silence essentially left him to fend for himself.

Even apart from Coleman’s complaints, a reasonable jury could find that Miquon knew or should have known of the ongoing harassment. This Court has recognized that “[a]n employer may … have constructive notice of harassment if the harassment is ‘so pervasive and open that a reasonable employer would have had to be aware of it.’” Huston, 568 F.3d at 105 n.4 (citation omitted)n; see also Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999) (same).

Coleman testified that his coworkers said the n-word and made other racist comments “all the time” during their shifts, and that the harassment continued throughout his employment. App. 208-12 (Coleman Dep.). Supervisors were on the restaurant floor, where they would have been exposed to these remarks. App. 260 (Hornbeck Dep.). A jury could find from this evidence that the harassment was “pervasive and open.” Huston, 568 F.3d at 105 n.4.

Moreover, a jury could find that Nielson, who was Coleman’s supervisor, was complicit in the racial hostility. Like Coleman’s coworkers, Nielson referred to African Americans with code words such as “they” and “you people.” App. 403-04, 407 (Coleman Interrog. Resp.); App. 215 (Coleman Dep.). Whenever anyone—even a customer—turned on the jukebox with rap or other music by any artist of color, Nielson would lower the volume, turn it off, or drown it out with other music. Nielson told staff, “Don’t play that type of music. No black music,” and threatened to fire “the next person that plays this shit.” App. 404, 406-08 (Coleman Interrog. Resp.); App. 217 (Coleman Dep.); App. 157 (Ashley Coleman Aff.).

A jury could find that this behavior encouraged Coleman’s coworkers. See West v. Phila. Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995) (“[B]y implicitly condoning harassing behavior, the employer may facilitate its spread by a greater number of harassing employees.”), superseded by statute on other grounds; see also Ellis, 742 F.3d at 320 (“Laughing or smirking at racist jokes, as well as failing to report, investigate, or punish known racist remarks of others, can make up an ‘accumulation of abusive conduct’ which poisons the work environment.”) (citation omitted).

The district court focused solely on Miquon’s alleged response to the July anonymous complaint to hold that Miquon took “prompt and adequate remedial action” to address the harassment. App. 24. In doing so, the court ignored Coleman’s and Ashley’s testimony that racial harassment was never discussed in any staff meeting. App. 213 (Coleman Dep.); App. 145 (Coleman Decl.); App. 157 (Ashley Coleman Aff.).

A jury could disbelieve Miquon’s assertion that, following the anonymous complaint, Slawek put his managers on “full alert” and instructed them to terminate anyone engaged in racial harassment. App. 370-71 (Slawek Dep.). Managers who were on “full alert” should have been aware that the harassment continued throughout Coleman’s employment. Also, when Nielson later learned that Moore had repeatedly whispered the n-word into Coleman’s ear, he simply told her “I don’t like that” rather than terminating her. App. 292 (Nielson Dep.). A jury could infer from this behavior that Slawek’s purported directive never happened or that, even if he did issue such an instruction, Nielson felt free to disregard it.

Conclusion

The district court’s factual and legal errors warrant reversal. For the foregoing reasons, the EEOC respectfully urges this court to vacate the award of summary judgment on Coleman’s hostile work environment claim and remand for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

Attorney

MD Bar No. 199101080003

Equal Employment Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this case.

[2] Moore was actually a friend, not a relative. App. 184-85 (Coleman Dep.).