Certificate of Interested Persons........................................................... C-1

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

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

Statement of the Issues............................................................................. 1

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

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

B... District Court’s Decision.............................................................. 6

Summary of Argument............................................................................. 8

Argument................................................................................................. 9

I... The District Court Wrongly Excluded from Yelling’s Hostile Work Environment Claim Alleged Conduct that Occurred More Than 180 Days Before She Filed Her First EEOC Charge................................ 11

II.. Considering Yelling’s Evidence Cumulatively and As a Whole, a Reasonable Jury Could Find Her Work Environment Both Severe Enough and Pervasive Enough to Violate Title VII........................... 14

A. The district court failed to appreciate the severity of disparaging language about Blacks, including references to primates and “go back to Africa,” “welfare queens,” and “ghetto fabulous.”......... 14

B... The court wrongly minimized the severity of racist comments on the ground that they were not directed at Yelling personally....... 17

C... A reasonable jury could find that workplace statements about “proudly” flying the Confederate flag were based on race.......... 21

D... A reasonable jury, considering Yelling’s evidence cumulatively and as a whole, could find her work environment violated Title VII.............................................................................................. 24

Conclusion............................................................................................. 28

Certificate of Compliance...................................................................... 30

Certificate of Service

Table of Authorities

Cases Page

Adams v. Austal, U.S.A., LLC, 754 F.3d 1240 (11th Cir. 2014)... 7, 19, 22, 27

Alamo v. Bliss, 864 F.3d 541 (7th Cir. 2017)......................................... 24

A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009)................. 22

Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008)....................... 28

Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264 (4th Cir. 2015) (en banc)................................... 15, 17

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).......................... 16

Christian v. Umpqua Bank, 984 F.3d 801 (9th Cir. 2020)...................... 24

Dixon v. Coburg Dairy, Inc., 369 F.3d 811 (4th Cir. 2004).................... 22

EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007)........... 24, 25

Fernandez v. Trees, Inc., 961 F.3d 1148 (11th Cir. 2020)................ 25, 26

Fort Bend Cnty., v. Davis, 139 S. Ct. 1843 (2019)................................. 11

Gates v. Bd. of Educ., 916 F.3d 631 (7th Cir. 2019)......................... 16, 28

Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903 (8th Cir. 2006)...................................................................................................... 15

Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208 (4th Cir. 2016)... 23

* Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)................... 10, 11, 27, 28

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)................... 18, 20

Jefferson v. Sewon Am., Inc., 891 F.3d 911 (11th Cir. 2018).................. 11

Cases (cont’d)

* Jones v. UPS Ground Freight,

683 F.3d 1283 (11th Cir. 2012).................... 1, 9, 10, 11, 15, passim

Ladd v. Grand Trunk W. R.R., 552 F.3d 495 (6th Cir. 2009).................. 20

Ledbetter v. Goodyear Tire & Rubber Co.,

421 F.3d 1169 (11th Cir. 2005).................................................... 12

Lloyd v. Holder, Civ. No. 11-cv-3154,

2013 WL 6667531 (S.D.N.Y. Dec. 17, 2013)............................... 16

Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998)................... 28

Lounds v. Lincare, Inc., 812 F.3d 1208 (10th Cir. 2015)........................ 24

McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008)........................ 13, 27

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004)................ 20

Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (en banc)...... 10

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002)...... 24

* National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) 8, 10, 12, 13

* Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). 10, 18, 21

* Reeves v. C.H. Robinson Worldwide, Inc.,

594 F.3d 798 (11th Cir. 2010) (en banc)..................... 10, 18, 19, 23

Savage v. Maryland, 896 F.3d 260 (4th Cir. 2018)................................. 20

Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006)... 27, 28

Cases (cont’d)

Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246 (11th Cir. 2003)....... 22

Shields v. Fort James Corp., 305 F.3d 1280 (11th Cir. 2002)................ 13

Shockley v. HealthSouth Cent. Ga. Rehab. Hosp.,

293 F. App’x 742 (11th Cir. 2008)............................................... 25

Shockley v. Rebound, Inc., d/b/a Healthsouth Cent. Ga. Rehab. Hosp.,

No. 5:04-cv-426 (HL), 2008 WL 350977 (M.D. Ga. Feb 7, 2008) 25

* Smelter v. S. Home Care Servs., Inc.,

904 F.3d 1276 (11th Cir. 2018)......................... 7, 10, 15, 18, 20, 25

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)............... 15

Stewart v. Jones Util. & Contracting Co., Inc.,

806 F. App’x 738 (11th Cir. 2020)............................................... 13

United States v. Blanding, 250 F.3d 858 (4th Cir. 2001)........................ 22

United States v. Jones, 159 F.3d 969 (6th Cir. 1998)............................. 15

Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003)............ 13, 23

Statutes

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

§ 2000e-2(a)(1)........................................................................... 1, 9

§ 2000e-5(b)................................................................................. 11

§ 2000e-5(e)(1)............................................................................ 12

Statutes (cont’d)

§ 2000e-5(f)(1)............................................................................. 11

Rules

Fed. R. App. P. 29(a)(2)........................................................................... 1

11th Cir. R.28-5....................................................................................... 2

Miscellaneous

EEOC Compliance Manual § 15-VII, Race and Color Discrimination:

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

Karen Stollznow, On the Offensive: Prejudice in Language Past & Present (2020), Available at https://www.cambridge.org/core/books/on-the-offensive/im-not-a-racist-but/67345CFD6722A05A51FE1C0FADDB0323/core-reader......... 16, 17

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII bars employers from discriminating against any employee “because of … race,” id. § 2000e-2(a)(1), which includes racially humiliating conduct that is sufficiently severe or pervasive “to alter the conditions of [an individual’s] employment and create an abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1297-99 (11th Cir. 2012) (citation omitted). This appeal raises several important questions regarding the proper legal analysis of hostile work environments, including: what timeframe applies; whether remarks are race-based; and whether the evidence here reflects sufficiently severe or pervasive conduct to support a jury finding of actionable harassment. Because the answers to these questions bear directly on the enforcement of Title VII, the EEOC offers its views to the Court. Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES [1]

1. In assessing Yelling’s hostile work environment claim, did the district court wrongly exclude all conduct that occurred more than 180 days before Yelling filed her first EEOC charge?

2. Did the district court wrongly grant summary judgment to St. Vincent’s because a reasonable jury, viewing Yelling’s evidence under the correct legal standards, could find that racially hostile comments were both sufficiently severe and sufficiently pervasive to violate Title VII?

STATEMENT OF THE CASE

A. Statement of the Facts

St. Vincent’s Health Center hired Cynthia Yelling, a licensed registered nurse and a Black woman, as a “pool nurse” in 2010; six months later, it hired her as a regular staff nurse at the hospital’s Critical Decision Unit (CDU). R.45 at 3 (District Court Memorandum Opinion); R.34-1 at 7-8 (Yelling’s deposition).[2] She was supervised first by a charge nurse, followed by a patient care supervisor, nurse manager, and ultimately the hospital’s administrative nursing director, all of whom were White except the nursing director, who was Black. R.45 at 3. In 2015, Yelling regularly worked weekends, but she worked extra shifts on other days as needed. Id. at 3-4; R.34-1 at 9; R.34-3 at 3. Most of the time Yelling was the only Black CDU nurse on her shift. R.34-1 at 16; R.34-3 at 3. Until September 2015, she received positive annual evaluations and no discipline or negative performance reviews. R.45 at 4.

Yelling alleges her work environment changed in 2015, when coworkers and supervisors began regularly and repeatedly making racially derogatory comments to her or within her hearing. R.45 at 4-5. One of Yelling’s first-line supervisors, Charge Nurse Jimmy Wilhite, made “several” racially improper comments to her, but she said a comment from March 2015 “sticks out.” R.34-1 at 11. That month, President Obama visited Yelling’s alma mater, Lawson State College, and Wilhite asked Yelling whether Obama was there to “hand[] out food stamps.” Id. at 11-12. Yelling understood Wilhite’s comment to be racially motivated because the students at Lawson were predominantly Black and “in some people’s mind, people who receive food stamps are minorities.” Id. at 74. Yelling complained to Nurse Manager Casi Dubose and Administrative Nursing Director Chuck Lacey, with no response. R.45 at 5.

According to Yelling, around the time of the Lawson College incident it “got really kind of heated with the racially disparaging comments.” R.34-1 at 64. Yelling attested that although no one ever used the “N” word in her presence, three White coworkers—Pool Nurses Sandy Sheffield and Linda Powell[3] and Unit Secretary Tiffany Hardy—“would always make racially insensitive comments” that Yelling found “very offensive.” R.34-1 at 12, 15; see also id. at 15 (“[t]hat was not unusual for them”). Sheffield, with whom Yelling worked at least one or two shifts every week, and Hardy, who worked with Yelling when her weekend rotation came around, would refer “pretty often” to Black patients as “welfare queens,” “crack heads,” and “ghetto fabulous.” R.34-1 at 14, 16, 79. Yelling never heard them use these terms to refer to White patients—including White patients with addiction issues. R.34-1 at 16. As to Powell, Yelling attested that “it was not unusual for her to make racially insensitive comment[s].” Id. at 15.

Hardy and Powell “repeatedly said President Obama should ‘go back to Africa’” and made other “‘derogatory comments about minorities in the news.’” R.34-1 at 14-15, 74. More than once, Sheffield and Hardy said that Michelle Obama “looks like a monkey” or referred to her as a monkey. R.34-1 at 13, 16. Although Yelling could not remember every specific remark, she attested that “if anything in current affairs occurred [that] happened to have included Blacks, … [s]omething derogatory was going to be said by Linda and Sandy and Tiffany.” R.34-1 at 15; see also id. at 19 (“If something occurred [in current affairs] that involved Blacks or Hispanics, they would make racially insensitive comments.”).

Charge Nurse Jennifer Laroe and coworkers Tonya Larimore and Robin Calvert “bragged about being proud rednecks who flew the [C]onfederate flag.” R.45 at 5; see also R.34-1 at 17-19, 74; R.34-3 at 3. Yelling explained that in her mind “a Confederate flag flyer” was “someone who has very little tolerance of minorities … because of what the Confederate flag stands for.” R.34-1 at 74.

Yelling objected to these racially disparaging comments as her coworkers made them. R.34-1 at 14-15, 64. When the comments persisted, she raised the issue during a June 2015 counselling session with House Supervisor Kimberley Parrish, who oversaw hospital operations during the weekend day shift. R.45 at 6; R.34-1 at 63-64. Parrish responded that the CDU was “Casi [Dubose]’s unit,” so the next day Yelling called Dubose, but “Dubose never responded.” R.45 at 6. Yelling eventually complained to a Human Resources (HR) official, but that official did not recall ever following up on Yelling’s complaint. Id. at 8.

In the fall of 2015, Yelling experienced her first disciplinary actions during her five-year tenure with St. Vincent’s. R.45 at 10-11. On November 23, 2015, she filed a discrimination charge with the EEOC stating, inter alia, that Dubose “created a culture hostile to Black females” and “allowed the White employees to talk about … flying the [C]onfederate flag and even [to] mak[e] disparaging remarks about President Obama.” R.34-1 at 123-24. Yelling filed a second EEOC charge on February 2, 2016, claiming retaliation after St. Vincent’s discharged her for allegedly falsifying the medical records of a patient assigned to her. R.45 at 13-14; R.34-1 at 125.

Yelling ultimately filed suit asserting, inter alia, a hostile work environment based on race. R.1; R.9. Following discovery, St. Vincent’s moved for summary judgment. R.32.

B. District Court’s Decision

The district court granted St. Vincent’s motion for summary judgment. R.45. At the outset, the court ruled that “any events which occurred prior to May 27, 2015”—180 days before Yelling filed her first EEOC charge—“are untimely for purposes of this litigation.” R.45 at 14-15. According to the court, Yelling appeared “to tacitly concede this point by expressly focusing her arguments on events occurring in or after June 2015.” Id. at 15. The court acknowledged one specific incident outside the 180-day timeframe on which Yelling relied—Wilhite’s March 2015 comment about President Obama’s Lawson State visit—but excluded it and all other pre-May 27, 2015, remarks from consideration as “time-barred.” Id. at 14-15, 16-17 n.9.

The court agreed with Yelling that some remaining comments were race-based, including that Michelle Obama looked like a monkey, Barack Obama should go back to Africa, and Black patients were “drug-seekers, welfare recipients, ‘crack heads,’ or ‘ghetto fabulous.’” Id. at 17. But, the court said, nurses’ statements that they “proudly flew the [C]onfederate flag” were “not racially motivated in the circumstances presented here” because they only spoke about it rather than displaying the emblem and “did not make any other race-based comments.” Id. at 17-19.

The court then ruled that the remaining race-based comments were not sufficiently severe or pervasive to create a hostile work environment. The court discounted Yelling’s testimony that three coworkers “‘always’ made ‘racially insensitive comments,’” stating she worked regularly with only one of the three. Id. at 20 & n.11 (Sheffield worked the weekend day shift with Yelling; “Powell worked the weeknight shift”; and Hardy worked weekends “only … when her ‘weekend rotation came around.’”).

Moreover, the court stated, “regardless of frequency, the comments were not particularly severe”—rather, they were merely “offensive utterances” “directed at third parties” that were not “physically threatening or humiliating” and did not appear to interfere with Yelling’s job performance “significantly.” Id. at 20-21; see also id. at 19 n.10 (stating that, even including the comments about being rednecks who fly the Confederate flag, the evidence was not “sufficiently severe to sustain a hostile work environment claim”). The court distinguished Smelter v. Southern Home Care Services, Inc., 904 F.3d 1276, 1286 (11th Cir. 2018)—the principal case on which Yelling relied—stating that the comments there were directed at the plaintiff and “culminated in a much more severe incident in which a coworker called [the plaintiff] a ‘dumb black n***er.’” R.45 at 21-22; see also id. at 20 (describing Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1251-57 (11th Cir. 2014), as “differentiating between employees who merely overhear” a racial slur and “employees to whom the racial slur was directed”).

SUMMARY OF ARGUMENT

In granting summary judgment to St. Vincent’s on Yelling’s hostile work environment claim, the district court wrongly excluded racially hostile comments preceding the charge-filing period. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that, because a hostile work environment is a single allegedly unlawful practice, as long as any hostile conduct falls within the charge-filing timeframe courts must consider the entire course of the conduct. This Court has—as it must—faithfully followed that rule since.

The district court’s legal error improperly shortened by some five months the period over which Yelling attested hostile comments had occurred. As a result, it skewed not only the court’s pervasiveness analysis, by truncating the hostile environment, but also its severity analysis, by excluding Wilhite’s March 2015 Lawson College/food stamps remark. The court should have recognized that because Wilhite was one of Yelling’s supervisors, the power differential between Wilhite and Yelling heightened the severity of that remark.

The court also mischaracterized the severity or race-based nature of other remarks Yelling heard in the workplace. It correctly acknowledged the race-based nature of primate references, statements that former President Obama should “go back to Africa,” and disparaging references to Black patients as welfare recipients, drug addicts, and ghetto-dwellers. But it wrongly found those comments not particularly severe because they “were directed at third parties” and, in the court’s view, not “humiliating.” And it categorically rejected the race-based nature of White nurses bragging in Yelling’s presence about “proudly” flying the Confederate flag.

These errors ignore well-established standards requiring hostile comments to be viewed in their social context and from the plaintiff’s perspective. They also denied Yelling the reasonable inferences to which she was entitled as the nonmoving party on summary judgment. Viewed properly—i.e., cumulatively, for the duration of the relevant period—a reasonable jury could find the racial hostility in Yelling’s work environment was both sufficiently severe and sufficiently pervasive to violate Title VII.

ARGUMENT

Title VII bars employers from “discriminat[ing] against any individual with respect to [her] … terms, conditions[] or privileges of employment, because of such individual’s race ….” 42 U.S.C. § 2000e-2(a)(1). “[W]hen the workplace is permeated with [racially] discriminatory … ridicule[] and insult[] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quoting Morgan, 536 U.S. at 116 (cleaned up)).

The conduct must be “‘based on’ … race,” a determination that “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Id. at 1297 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). And the conduct must be hostile both subjectively, i.e., from the plaintiff’s perspective, and objectively, as “judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc) (quoting Oncale, 523 U.S. at 81 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993))).

This Court “consider[s] four factors when evaluating whether harassment was objectively hostile:” the conduct’s “frequency,” its “severity,” whether it “is physically threatening or humiliating, or a mere offensive utterance,” and “whether the conduct unreasonably interferes with the employee’s job performance.” Smelter, 904 F.3d at 1285 (quoting Mendoza, 195 F.3d at 1246). “[N]o single factor is required,” however. Id. at 1287 (quoting Harris, 510 U.S. at 23). Instead, on summary judgment, a court “must view the evidence ‘cumulatively and in the totality of the circumstances.’” Id. at 1285 (quoting Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc)). Critically, although “[t]he appalling conduct alleged” in some cases “present[s] some especially egregious examples of harassment,” those cases “do not mark the boundary of what is actionable.” Harris, 510 U.S. at 22; Jones, 683 F.3d at 1303 n.49 (same) (citation omitted).

I. The District Court Wrongly Excluded from Yelling’s Hostile Work Environment Claim Alleged Conduct that Occurred More Than 180 Days Before She Filed Her First EEOC Charge.

The district court’s exclusion of all conduct that occurred more than 180 days before Yelling filed her first EEOC charge contradicts clear, longstanding, and binding Supreme Court and circuit precedent. And that ruling had a material effect on the court’s “severe or pervasive” analysis in at least two respects: the court omitted consideration of a racially humiliating remark made by one of Yelling’s supervisors, and it truncated the duration of the harassment significantly, thereby masking its true pervasiveness. This legal mistake, alone, makes the district court’s grant of summary judgment erroneous.[4]

Before bringing a discrimination claim in court, an employee must first file a charge with the EEOC. See 42 U.S.C. §§ 2000e-5(b), (f)(1); Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846-50 (2019) (describing Title VII’s non-jurisdictional charge-filing requirement). In Alabama, the employee must file her EEOC charge within 180 days of the alleged unlawful employment practice. Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005) (citing 42 U.S.C. § 2000e-5(e)(1)) (superseded by statute on other grounds).

As the Supreme Court explained in Morgan, “[h]ostile environment claims are different in kind from discrete acts.” 536 U.S. at 115 (citations omitted). A hostile work environment does not occur “on any particular day” but is “based on the cumulative effect of individual acts” that may occur “over a series of days or perhaps years.” Id. Because “the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim,” and the employee’s EEOC charge is timely if it is filed “within 180 or 300 days of any act that is part of the hostile environment.” Id. at 118. Accordingly, in Alabama, a charge alleging a hostile work environment that is filed with the EEOC within 180 days of any component act encompasses the entire hostile environment period, including conduct that occurred more than 180 days before the charge was filed.

This Court acknowledged this principle almost immediately after Morgan was decided, stating that “[a]n allegation that an employer has allowed a racially hostile work environment to prosper embodies a single violation … and, therefore, should be reviewed in its entirety if any part of this allegation falls within the statute of limitations period.” Shields v. Fort James Corp., 305 F.3d 1280, 1282-83 (11th Cir. 2002) (emphasis added) (applying Morgan to a Title VII hostile work environment claim); see also Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003) (noting that because “six alleged incidents of harassment occurred within the filing period, the entire time period of the harassment may be considered for the purposes of determining liability.”). And this Court has continued to apply this principle faithfully since. See, e.g., McCann v. Tillman, 526 F.3d 1370, 1378-79 & n.10 (11th Cir. 2008) (noting that a court may consider offensive statements that occurred outside the statutory time period as long as an act contributing to the hostile work environment occurred within the charge-filing period) (citing Morgan, 536 U.S. at 117); Stewart v. Jones Util. & Contracting Co., Inc., 806 F. App’x 738, 741 (11th Cir. 2020) (same) (citing Morgan, 536 U.S. at 115, 117-18; Shields, 305 F.3d at 1281).

The district court’s failure to apply this well-established rule materially altered its severity/pervasiveness analysis. Yelling attested that in 2015, she began hearing racist remarks at work on a regular basis. Her supervisor’s March 2015 Lawson College comment was one specific example, but she related that racial insults were happening regularly and repeatedly throughout 2015. By excluding all racially hostile comments that predated May 27, 2015, the district court omitted the racially hostile remark of a supervisor and effectively truncated by almost half the timeframe over which Yelling says the discriminatory remarks occurred. This Court should vacate and remand for the district court to rectify this legal error.

II. Considering Yelling’s Evidence Cumulatively and As a Whole, a Reasonable Jury Could Find Her Work Environment Both Severe Enough and Pervasive Enough to Violate Title VII.

The district court recognized that a number of Yelling’s coworkers’ comments were race-based, including comparisons between Michelle Obama and monkeys; statements that President Obama should “go back to Africa”; and disparaging references to Black students and patients—but not their White counterparts—as needing food stamps, being “welfare queens,” living in ghettos (i.e., “ghetto fabulous”), or being “crack heads” for merely requesting their pain medication. R.45 at 16-17. But the court wrongly discounted these comments as “not particularly severe” because, in the court’s view, “none of the comments Yelling describes—no matter how offensive, boorish, and stupid—were physically threatening or humiliating.” Id. at 20. The court erred.

First, this Court and other circuits have stated unequivocally that references to Blacks as primates are highly racially offensive and humiliating. “‘Given the history of racial stereotypes against African-Americans and the prevalent one of African-Americans as animals or monkeys, it is a reasonable—perhaps even an obvious—conclusion that’ the use of monkey imagery is intended as a ‘racial insult’ where no benign explanation for the imagery appears.” Jones, 683 F.3d at 1297-98 (quoting United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998)).

As this Court noted in Jones, comparisons between Blacks and monkeys “have been part of actionable racial harassment claims across the country.” Jones, 683 F.3d at 1297 (quoting Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006)). “To suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the mere unflattering; it is degrading and humiliating in the extreme.” Green, 459 F.3d at 911 (citation omitted). Indeed, at least one court has compared using the term “monkey” to refer to Blacks as akin to using “the ‘N-word.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (characterizing use of the racial slur “porch monkey” as “about as odious as the use of the word ‘nigger’”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (harasser’s “constant use of the word ‘monkey’ to describe African Americans” was “similarly odious” to use of the term “nigger,” which the court described as “pure anathema to African-Americans”).

The other racial insults Yelling heard her coworkers make likewise reflect “highly offensive derogatory stereotypes of black people” that this Court has found “sufficiently severe to create a hostile work environment.” See Smelter, 904 F.3d at 1286 (noting “highly offensive” nature of racially derogatory stereotypes such as “‘black women[] ha[d] babies on welfare’” and coworker’s expressed desire to send Black people “‘back … to Africa’”); Lloyd v. Holder, Civ. No. 11-cv-3154, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013) (“facially non-discriminatory terms,” like “welfare queen,” “can invoke racist concepts that are already planted in the public consciousness”). See also Karen Stollznow, On the Offensive: Prejudice in Language Past & Present 36 (2020) (noting that comments such as telling a Black person to “go back to Africa” are a “variant[] of a racist trope that implies that members of minority groups do not belong in Anglophone countries”).[5]

Moreover, as the Supreme Court and other courts of appeals have noted, a comment’s hostility is amplified when a supervisor makes it to a subordinate, as Wilhite did here with the Lawson College/food stamps remark. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998) (explaining why supervisor harassment is more severe); Gates v. Bd. of Educ., 916 F.3d 631, 638-39 (7th Cir. 2019) (reversing summary judgment because district court’s “flawed” analysis of race harassment claim overlooked that a “supervisor’s use of racially toxic language in the workplace [is] much more serious than a co-worker’s”); Boyer-Liberto, 786 F.3d at 278 (“[A] supervisor’s use of [a racial epithet] impacts the work environment far more severely than use by co-equals.”) (citation omitted).

The requirement that conduct must be viewed from the perspective of a reasonable person in the plaintiff’s position also includes the time period at issue, as Yelling correctly notes (Yelling-Br. 18-19). As one scholar has put it, “[r]acist language is in a constant state of flux.” Stollznow, supra, at 17. In other words, social norms evolve, and with those changes comes an evolving understanding of racially offensive conduct and acceptable workplace behavior. The conduct here occurred in 2015-2016. In Smelter and Jones, published opinions from 2018 and 2012, respectively, this Court made clear that, at a minimum, a jury could find the kind of language at issue in this case to be racially offensive, and severely so. We agree with Yelling that this Court should continue to measure the hostility of work environments based on contemporaneous standards, not what might have been acceptable decades ago. The district court erred in ruling otherwise.

B. The court wrongly minimized the severity of racist comments on the ground that they were not directed at Yelling personally.

The district court also erred insofar as it rejected Yelling’s hostile work environment claim because the comments she heard her coworkers make were “about third-parties unrelated to Yelling” rather than directed at her personally. R.45 at 21. To be sure, depending on context, directing a racial slur at an employee herself can heighten its severity. See Smelter, 904 F.3d at 1286 (identifying the “[m]ost severe” incident at issue as a supervisor directly calling Smelter “a ‘dumb black nigger’”). But, as this Court and others have recognized, this does not make the inverse true: it does not mean that a racial slur not directed at the employee cannot be severe—or very severe—depending on the circumstances.

This Court has observed that “a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out in the offensive conduct.” Reeves, 594 F.3d at 807. And, as noted above, “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Id. at 809 (quoting Oncale, 523 U.S. at 81) (cleaned up). Although Reeves involved a sex-based hostile work environment claim, courts routinely apply the same principle to race-based harassment. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999) (“[A]n employer may create a hostile environment for an employee even where it directs its discriminatory acts or practices at the protected group of which the plaintiff is a member, and not just at the plaintiff herself.… [R]acial epithets need not be hurled at the plaintiff in order to contribute to a work environment that was hostile to her.”).

As this Court explained in Reeves, 594 F.3d at 811, when words “are sufficiently [race]-specific and either severe or pervasive,” they can “state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.” This is because when coworkers use derogatory language to refer to members of the group to which the plaintiff belongs, the plaintiff understands these coworkers view her protected group “negatively, and in a humiliating or degrading way.” Id. “[T]he harasser need not close the circle with reference to the plaintiff specifically” and state “you are a [‘monkey’], too”; “[a] jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about [Blacks] as a group and the conduct persisted unabated.” Id.

Here, the district court rejected this principle in part based on an apparent misreading of this Court’s decision in Adams. See R.45 at 20 (characterizing Adams as “differentiating between employees who merely overheard coworkers use the ‘N-word’ and employees to whom the racial slur was directed”). But the Adams Court drew no such distinction; rather, it differentiated between “incidents of racial harassment of which the individual employees were aware” and those they were not, explaining that the latter were not part of the work environment. Adams, 754 F.3d at 1250 (emphasis added); see also id. at 1252-53 (finding genuine dispute of material fact as to severity based in part on evidence of racial slurs overheard by one plaintiff and viewed by the other, but not directed at either of them).

Other circuits agree that racial (and gender-based) slurs in the workplace need not be directed at the plaintiff to contribute to a hostile work environment. See, e.g., McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) (“[I]f racial hostility pervades a workplace, a plaintiff may establish a violation of Title VII, even if such hostility was not directly targeted at the plaintiff.”); see also Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018) (noting in dicta that use of racial slurs to insult Black employees and customers can create an unlawful hostile work environment even when the comments are not directed specifically at the complaining employee); Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 500 (6th Cir. 2009) (reiterating same rule in context of hostile environment claim based on sex, citing Jackson, 191 F.3d at 660).

Here, a reasonable juror could infer that the racial comments Yelling heard from her coworkers reflected their assumptions that Black patients were drug-addicted or dependent on welfare because of their skin color—a skin color that Yelling shared with those patients. As this Court stated in Smelter, such comments may not be physically threatening, but they are nevertheless “surely humiliating” for a Black woman to hear her coworkers say in her presence. Smelter, 904 F.3d at 1286. And they did not shed their humiliating nature simply because Yelling’s coworkers did not call her a monkey, say she should “go back to Africa,” or state that she was “ghetto fabulous,” a “crack head,” or a “welfare queen” because she is Black.

C. A reasonable jury could find that workplace statements about “proudly” flying the Confederate flag were based on race.

This Court has cautioned that when courts are determining whether conduct is based on race, they must carefully consider “the social context in which particular behavior occurs and is experienced by its target.” Jones, 683 F.3d at 1297 (quoting Oncale, 523 U.S. at 81) (emphasis added). The district court ignored this requirement when it ruled, on summary judgment, that nurses’ comments declaring themselves proud flyers of the Confederate flag were not racially hostile in this case. The court acknowledged that this Court has found otherwise, but emphasized that the nurses who bragged in Yelling’s presence about proudly flying the Confederate flag only spoke about it and did not display the emblem, wear it as an insignia on their clothing, or make any other race-based comments. R.45 at 18-19.

The court made two principal errors in addressing this evidence: it failed to consider its social context, and it placed unwarranted importance on the difference between displaying the Confederate flag and bragging about doing so. Yelling attested that she viewed Confederate-flag comments as reflecting racial hostility “because of what the Confederate flag stands for,” stating her belief that a “Confederate flag flyer” is “someone who has very little tolerance of minorities.” And she heard these comments in the context of being the only Black nurse on her shift, and in the context of hearing repeated racial slurs and insults from other White coworkers (and at least one supervisor). See supra at 2-4.

Nor was Yelling’s view of the Confederate flag idiosyncratic or unique to her. As this Court has observed, “it is not an irrational inference that one who displays the [C]onfederate flag may harbor racial bias against African-Americans.” Jones, 683 F.3d at 1303 (quoting United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (omitting italics in original)); see also Scott v. Sch. Bd. of Alachua Cnty., 324 F.3d 1246, 1247-49 (11th Cir. 2003) (noting, in context of upholding school district’s Confederate-flag ban, the flag’s close association with racial prejudice). Other courts agree. See A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 222 (5th Cir. 2009) (recognizing the Confederate flag as a “racially charged symbol”); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 820-26 (4th Cir. 2004) (Gregory, J., concurring) (explaining why the Confederate flag’s historical reflection of racial subordination and slavery might cause Black employees to “feel offended, harassed and even threatened by the Confederate battle flag in the workplace, even if those who display the flag do so with no ill will”); cf. Adams, 754 F.3d at 1251-54 (holding that exposure to Confederate flag contributed to racially hostile work environment).

None of these decisions indicate that their rulings turned on the Confederate flag being worn or displayed as opposed to discussed, and none suggest the result would have differed if the coworkers had, instead, bragged about “proudly” flying it, as happened here. And the district court here identified no legal precedent holding that a coworker’s declaration that he or she proudly flies the Confederate flag reflects racial intolerance only if the individual has made other racially offensive remarks.

In rejecting the race-based nature of the Confederate flag remarks, the court failed to construe the evidence in the light most favorable to Yelling, the non-moving party, or to draw all reasonable inferences in her favor. Watson, 619 F.3d at 942; Reeves, 594 F.3d at 807. A reasonable person in Yelling’s position (i.e., the only Black nurse among an otherwise all-White staff during her shift) could—as Yelling did—reasonably view White coworkers bragging about proudly flying the Confederate flag as a reflection of racial hostility or intolerance. Consequently, the district court was required to afford Yelling the benefit of that reasonable inference. See Jones, 683 F.3d at 1298-99 (where plaintiff argued that banana peels were placed on his truck to send a message of racial intolerance and defendant argued they just as likely had nothing to do with race, question was for jury to decide, and court would assume racial meaning for purposes of summary judgment); see also Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 225-26 (4th Cir. 2016) (where it was ambiguous whether workplace remarks were racially derogatory, reversing district court for, inter alia, “put[ting] itself in the place of the jury when it decided that only one of the remarks was racial”). In assessing objective severity/pervasiveness, the court should have considered this evidence along with Yelling’s other evidence of racial insults.

D. A reasonable jury, considering Yelling’s evidence cumulatively and as a whole, could find her work environment violated Title VII.

“[R]epeated incidents of [ ] harassment that continue despite the employee’s objections” are what suffices for a jury to find a racially hostile work environment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (internal quotations and citations omitted). There is no “magic number” of racial insults required to defeat summary judgment and allow a jury to determine whether the work environment violated Title VII. Instead, as various courts around the country have recognized, severity and pervasiveness are inversely related: the more serious the conduct, the fewer incidents needed to establish a claim; likewise, less serious conduct, repeated often enough, will be enough to send the issue to a jury. See, e.g., Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020); Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017) (describing pervasiveness and severity as “inversely related”) (citation omitted); Lounds v. Lincare, Inc., 812 F.3d 1208, 1223 (10th Cir. 2015) (workplace environment more likely actionable where “repeated harassing acts approach the level of severe”); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (explaining viable Title VII claim could be based on a single incident, if sufficiently severe, or “a continuous pattern of much less severe incidents of harassment”) (citations omitted). Likewise, the EEOC’s policy guidance on race-based harassment states that “[t]he more severe the harassment, the less pervasive it needs to be, and vice versa. … Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated.” EEOC Compliance Manual § 15-VII, Race and Color Discrimination: Equal Opportunity for Job Success, 2006 WL 4673430 (June 1, 2006), at text accompanying nn.127-32.

Applying this principle, this Court has held that hostile comments over a long-enough period can violate Title VII. See Fernandez v. Trees, Inc., 961 F.3d 1148, 1153-54 (11th Cir. 2020) (finding sufficiently pervasive supervisor’s “near daily” comments denigrating Cubans over two-month period); Smelter, 904 F.3d at 1285 (statements were “frequent” where plaintiff heard the comments “every day” over a two-month period); see also Shockley v. HealthSouth Cent. Ga. Rehab. Hosp., 293 F. App’x 742, 747 (11th Cir. 2008) (vacating summary judgment and remanding plaintiff’s claim of hostile work environment based on race harassment where plaintiff alleged frequent verbal harassment by her supervisor over a period of months); Shockley v. Rebound, Inc., d/b/a Healthsouth Cent. Ga. Rehab. Hosp., No. 5:04-cv-426 (HL), 2008 WL 350977 (M.D. Ga. Feb 7, 2008), at *2 (describing alleged harassment as including derogatory references to Blacks generally and specific negative remarks about plaintiff’s hair, her ability to afford a car, and her overall work ethic).

Yelling’s evidence satisfied this standard. The fact that she did not provide an exhaustive inventory, with time and date, of every racially derogatory comment she heard does not undermine her testimony that she heard racially insulting comments regularly and repeatedly throughout 2015 from multiple coworkers, including “several” comments by at least one supervisor. See Fernandez, 961 F.3d at 1153-54 (rejecting “proposition that a plaintiff must recall every specific instance of discriminatory conduct to establish that the conduct was frequent”). For summary judgment purposes, it suffices that she attested to not only the timeframe (throughout 2015) and frequency (“always,” “pretty often,” “not unusual”), but also specific examples of the types of comments she heard—comments closely resembling those this Court recognized as racially hostile in Smelter and other cases. Yelling attested that she was seriously disturbed by these insults and that they persisted despite her protestations to those making the comments, to her supervisors, and finally to HR.

The district court wrongly discounted the pervasiveness of these racial insults on the ground that Yelling worked “regularly” with only one of the three coworkers who made most of the explicitly race-based comments. See R.45 at 20 & n.11. Yelling explained, however, that she sometimes worked other shifts as needed, and that Powell (one of the three coworkers) was a “pool supplemental staff RN that floated.” See supra at 2-4. Thus, even if Yelling did not work with all three individuals on every single shift, a jury could find that their shifts overlapped often enough to support her testimony that she heard these comments repeatedly over a period of many months.

The number, variety, and duration of racial insults that Yelling heard here distinguishes this case from those where this Court found no violation based on only a handful of incidents over a period of years. See, e.g., McCann, 526 F.3d at 1378-79 (three racially insensitive comments over two-year period were “too sporadic and isolated” to establish requisite pervasiveness); see also Adams, 754 F.3d at 1250-57 (differentiating the experiences of seven plaintiffs who experienced frequent or regular harassment from those who experienced only “isolated” harassment).

That Yelling’s evidence was not as extreme as in some other cases does not justify summary judgment, as the district court wrongly concluded. See R.45 at 21-22 (comparing Yelling’s facts to those in Smelter). Rather, as the Supreme Court, this Court, and other circuits have emphasized, the most egregious examples of hostile work environments “do not mark the boundary for what is actionable.” Harris, 510 U.S. at 22; Jones, 683 F.3d at 1303 n.49; see Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006) (“Prior cases in which we have concluded that a reasonable juror could find that the work environment was objectively hostile do not ‘establish a baseline’ that subsequent plaintiffs must reach in order to prevail.”) (citation omitted); see also Gates, 916 F.3d at 637 (same); Billings v. Town of Grafton, 515 F.3d 39, 48-49 (1st Cir. 2008) (same; citing Harris and quoting Schiano); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (same).

Finally, the court erred insofar as it granted summary judgment based on its conclusion that these racist comments did not interfere with Yelling’s job performance “significantly.” R.45 at 20-21. See Harris, 510 U.S. at 25 (Scalia, J., concurring) (“[T]he test is not whether work has been impaired, but whether working conditions have been discriminatorily altered.”). Yelling’s repeated complaints about the harassment show that she perceived her working conditions to be discriminatorily altered, and a reasonable person in her position could readily agree.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be vacated and the case remanded for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B)(i) because it contains 6,500 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Eleventh Cir. R. 32(b). This brief also 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 365 in Times New Roman 14 point.

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

(202) 921-2706

susan.oxford@eeoc.gov

Dated: May 3, 2021

[1] We take no position on any other issue in this appeal.

[2] Per 11th Cir. R.28-5, record cites are to the district court document number (R.) and to the page number in the ECF-generated header.

[3] Pool RNs were “supplemental staff that floated through the units.” R.34-1 at 12.

[4] The EEOC agrees with Yelling that she did not “tacitly concede” that statements preceding May 27, 2015, were “untimely,” as the district court stated. R.45 at 15. Moreover, as Yelling notes, a party cannot “waive the application of the correct law.” See Opening Brief (Yelling-Br.) at 17 n.2 (citing Jefferson v. Sewon Am., Inc., 891 F.3d 911, 923 (11th Cir. 2018)).

[5] Available at https://www.cambridge.org/core/books/on-the-offensive/im-not-a-racist-but/67345CFD6722A05A51FE1C0FADDB0323/core-reader.