Page
TABLE OF AUTHORITIES.. iii
STATEMENT OF INTEREST.. 1
STATEMENT OF THE ISSUES.. 2
STATEMENT OF THE CASE.. 2
A. Factual Background. 2
B. Procedural Background. 7
ARGUMENT.. 10
I. A reasonable jury could conclude that
Chapman experienced objectively hostile racial harassment that can be imputed
to Oakland. 10
A. A reasonable jury could conclude that Chapman
experienced objectively hostile harassment. 11
B. A reasonable jury could determine that
liability for the harassment should be imputed to Oakland. 19
1. A jury could conclude that, at the latest,
Oakland had actual knowledge of the hostile work environment after the first
August incident, and yet it failed to take appropriate remedial measures. 20
2. A jury could conclude that Oakland had
constructive knowledge of the hostile work environment, and yet it failed to
take appropriate remedial measures. 24
II. The district court applied the wrong
standard in analyzing Chapman’s constructive-discharge claim. 28
CONCLUSION.. 30
CERTIFICATE
OF COMPLIANCE……………………………………………
Page(s)
Cases
Amirmokri v. Balt. Gas
& Elec. Co.,
60 F.3d 1126 (4th Cir. 1995)................................... 12
Bazemore v. Best Buy,
957 F.3d 195 (4th Cir. 2020)..................................... 8
Boyer-Liberto v.
Fountainebleau Corp.,
786 F.3d 264 (4th Cir. 2015) (en banc)......... passim
Christian v. Umpqua Bank,
984 F.3d 801 (9th Cir. 2020)................................... 23
EEOC v. Cent. Wholesalers,
Inc.,
573 F.3d 167 (4th Cir. 2009)...................... 21, 25, 28
EEOC v. Consol Energy, Inc.,
860 F.3d 131 (4th Cir. 2017)............................ 29, 30
EEOC v. Sunbelt Rentals,
Inc.,
521 F.3d 306 (4th Cir. 2008)............................ 21, 25
EEOC v. Xerxes Corp.,
639 F.3d 658 (4th Cir. 2011).......................... passim
Ellison v. Brady,
924 F.2d 872 (9th Cir. 1991)............................ 12, 13
Freeman v. Dal-Tile Corp.,
750 F.3d 413 (4th Cir. 2014).......................... passim
Green v. Brennan,
136 S. Ct. 1769 (2016)....................................... 29, 30
Harris v. Forklift Sys.,
Inc.,
510 U.S. 17 (1993)....................................... 11, 18, 19
Howard v. Winter,
446 F.3d 559 (4th Cir. 2006)............................ 25, 27
Lounds v. Lincare, Inc.,
812 F.3d 1208 (10th Cir. 2015).............................. 13
Meritor Sav. Bank v.
Vinson,
477 U.S. 57 (1986).............................................. 13, 14
Miles v. DaVita Rx, LLC,
962 F. Supp. 2d 825 (D. Md. 2013)........................ 16
Nat’l R.R. Passenger Corp.
v. Morgan,
536 U.S. 101 (2002).................................................. 16
Ocheltree v. Scollon
Prods., Inc.,
335 F.3d 325 (4th Cir. 2003) (en banc)... 24, 25, 26, 27
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998).................................................... 11
Paroline v. Unisys Corp.,
879 F.2d 100 (4th Cir. 1989)............................ 21, 22
Porter v. Erie Foods
Int’l, Inc.,
576 F.3d 629 (7th Cir. 2009)................................... 16
Pryor v. United Air Lines,
Inc.,
791 F.3d 488 (4th Cir. 2015)...................... 21, 22, 23
Spriggs v. Diamond Auto
Glass,
242 F.3d 179 (4th Cir. 2001)............................ 13, 17
Torres v. Pisano,
116 F.3d 625 (2d Cir. 1997).................................... 12
Vance v. Ball State Univ.,
570 U.S. 421 (2013)................................. 8, 23, 25, 26
West v. Phila. Elec. Co.,
45 F.3d 744 (3d Cir. 1995)...................................... 12
Statutes
Title VII of the Civil
Rights Act of 1964,
.... 42 U.S.C. §§ 2000e et
seq.......................................... 1
42 U.S.C. § 2000e-2(a)(1)............................................. 14
Administrative Materials
and Rules
29 C.F.R. § 1604.11(a)(3).............................................. 14
Federal Rule of Appellate
Procedure 29(a)................. 1
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. The district court held
that the plaintiff could not survive summary judgment on her race-based hostile-work-environment
and constructive-discharge claims. This case raises several questions important
to the administration and enforcement of Title VII’s prohibitions on race
discrimination. In particular, the case implicates significant questions about
how courts should evaluate whether workplace harassment is objectively severe
or pervasive and how courts should apply the negligence standard for imputing
liability for third-party harassment to employers. This case also raises the
question of the legal standard governing constructive-discharge claims. Because
the EEOC has a strong interest in these important issues, it offers its views
to the Court pursuant to Federal Rule of Appellate Procedure 29(a).
1. Whether a reasonable jury could conclude that Plaintiff-Appellant
Tonya Chapman experienced objectively severe or pervasive harassment in July
and August 2018.
2. Whether a reasonable jury could impute liability to Chapman’s
employer for the harassment because the employer was negligent in addressing it.
3. Whether the district court misapprehended the
standard for constructive-discharge claims when it required Chapman to
demonstrate the “deliberateness” of her employer’s actions.
A. Factual Background
Chapman, who is African American, began working for
Oakland Living Center (Oakland), an assisted living facility, in 2004. JA.36;
JA.92; JA.239. She worked there from 2004 to 2015, first as a personal care
assistant and housekeeper and later as a weekend cook, and returned in 2018 as
a weekend cook. JA.36-38; JA.48; JA.269.
Oakland was a family-run business owned by Michael and
Arlene, a married couple. JA.227-29.
All of the managers at Oakland were family members, including Michael, Arlene,
and their son Steven. JA.93; JA.229. Steven described his role as “supervisor
in charge” and “maintenance.” JA.265. Steven and Michael were jointly in charge
of the kitchen where Chapman worked, and Steven made all company decisions when
Michael and Arlene were not present. JA.95; JA.228; JA.265. Oakland kept a
company handbook at the facility’s front desk, but Arlene could not remember
whether the handbook contained a policy for reporting harassment, and she
acknowledged that she never gave a copy of the handbook to Chapman or any other
staff member. JA.246-48.
Steven often brought his young children (Michael and
Arlene’s grandchildren) to visit the Oakland facility and the kitchen where
Chapman worked. JA.73; JA.96;
JA.250; JA.262-63. The children were “raised” at Oakland and were
present at the facility “constantly, all the time.” JA.73. Chapman recalled
that the children were “always in the kitchen with me.” JA.62.
Around 2009, Arlene photographed Chapman for Chapman’s
work identification card. JA.50-51. After Arlene photographed Chapman from the
front, she said to Chapman, “I’m going to take a picture of you from the side
and I’m going to give you some slave numbers.” JA.51-52. Arlene wrote the
number “7639821” on Chapman’s photograph. JA.52.
Around February 2014, Steven and his wife, Beth, held a
monkey-themed birthday celebration for their twins at Oakland. JA.54-57.
Chapman shares a birthday with the twins. JA.54. On the day of this celebration,
Steven and Beth gave Chapman a cake that depicted a hangman with a noose image.
JA.55-56.
Chapman asked Arlene on several occasions to transfer to
a health-care position and inquired about obtaining a medical-technician
license. JA.38-41. Arlene selected several employees—but not Chapman—to obtain
a such a license. JA.39-41. Chapman believed that Arlene did not select her
because of her race. See JA.128-30. In 2015, Chapman left Oakland
because she was frustrated that she had not been allowed an opportunity to
obtain a medical-technician license. JA.39-40.
Then, around April 2018, Chapman returned to her weekend
cook position at Oakland when Patricia Warner, who also worked in the kitchen,
asked her to return. JA.43; JA.60-61; JA.269. Chapman assumed that Warner was
her supervisor during her 2018 tenure at Oakland and she believed that Warner
had authority to rehire her. JA.43-46.
In July 2018, Chapman set aside some cupcakes in the
kitchen for Steven’s children to decorate. JA.62-65. One of Steven’s children,
who was six years old at the time, wanted to decorate additional cupcakes. JA.63-65;
JA.273. When Chapman said no, the child hit and kicked Chapman and said, “My
daddy called you a lazy ass black n*****, because you didn’t come to work.” JA.65-67.
Chapman testified that she reported the incident to Warner. JA.69. At the time
of this episode, Michael and Arlene were out of town, and Steven was in charge
of the facility. JA.68-71; JA.95.
In August 2018, while Chapman was working, the same
child was outside the kitchen riding his bicycle. JA.74-75. The child called to
Chapman through a window and told her to come over. JA.75. Chapman went to the
window and told the child she had to work. JA.75-76. The child responded: “N*****, n*****. Get to work, n*****.” JA.76. Michael
and Arlene were not present at the time of this incident, and Steven was in
charge of the facility. JA.95-97; JA.238-39.
Shortly after this incident, Steven learned from Warner that
the child had called Chapman “an ‘n’ word.” JA.271-72. Steven asked Chapman if
his child “sa[id] something ugly” to her, and Chapman replied in the
affirmative. JA.78; JA.272-73. Steven told Chapman that he would “straighten
[the child] out.” JA.199. Steven spanked the child, and he then brought the
child into the kitchen and directed him to apologize to Chapman. JA.273-75. But
the child did not approach Chapman and instead ran to Warner. JA.274-75. Steven
witnessed that the child did not apologize to Chapman, and there is no evidence
in the record indicating that Steven himself apologized to Chapman for the
child’s conduct. See JA.273-76. Nonetheless, Steven walked away, leaving
the child with Chapman. JA.79-81; JA.179. After Steven left, the child said to
Chapman, “Tonya, you are a n*****.” JA.179.
Chapman immediately resigned. JA.81. She told Warner,
“I’ve got to go. I can’t stay here. I can’t. I’m sorry. 6 year olds should not
know that.” Id.
B. Procedural
Background
Chapman filed suit asserting, inter alia, Title
VII claims for (1) hostile work environment based on race and (2) constructive
discharge. The district court
granted Oakland summary judgment.
In rejecting
Chapman’s race-based hostile-work-environment claim, the court did not
explicitly address the question whether Chapman’s work environment was
objectively hostile. However, the court agreed with Chapman that “the child
used atrocious language that is entirely unacceptable in society.” JA.293.
Instead of
discussing objective hostility, the court focused on whether liability could be
imputed to Oakland for the July and August 2018 incidents involving the child.
As the court recognized, “a third party’s actions can provide a basis for
recovering against an employer if the employer was negligent in controlling the
working conditions.” JA.290. An employee can make this showing, the court
explained, by offering evidence that the employer “knew, or should have known,
about the harassment and failed to take action reasonably calculated to stop
it.” Id. (quoting Bazemore v. Best Buy, 957 F.3d 195, 201 (4th
Cir. 2020)). The court asserted that “it is the employee’s responsibility to
notify the employer that a problem exists” “[f]or an employer to be expected to
correct harassment.” Id. (citing EEOC v. Xerxes Corp., 639
F.3d 658, 674 (4th Cir. 2011)).
The district court
first concluded that Oakland could not be charged with knowledge of the
harassment before Steven learned of the first August incident. According to the
court, Chapman “admit[ted] that she did not report the July incident to a
supervisor or anyone that could have reprimanded the child or corrected the
situation.” JA.291. Although the court acknowledged Chapman’s
testimony that she told Warner about the July incident, it apparently assumed
that a report to Warner could not have put Oakland on notice because Warner was
not a supervisor under Vance v. Ball State University, 570 U.S. 421
(2013). JA.291 n.3. The court did not analyze whether Oakland had constructive
knowledge of the July incident.
The district court
went on to determine that Oakland’s response to the first August incident was “reasonably
calculated to stop” the harassment as a matter of law. JA.291-92. The court stated
that an employer’s “remedial actions . . . need not be guaranteed to stop the
harassment.” JA.291 (citing Xerxes, 639 F.3d at 669). According
to the court, “[s]panking the child after the child directed a racial slur at
[Chapman] may not have stopped the harassment in this case, but it was an
effort directed to reasonably stop the harassment.” JA.292. The court added
that Chapman “did not give [Oakland] the opportunity” to take “more stringent
methods” “[a]fter the second [August] incident,” “as she immediately quit.” Id.
The district
court also addressed prior racially discriminatory incidents—the slave-number
and noose-cake episodes—that occurred during Chapman’s first period of
employment at Oakland. JA.294-97. The court rejected any separate claims based
on these incidents because, inter alia, in the court’s view, such claims
fell outside the scope of Chapman’s EEOC charge. JA.295-96.
In dismissing
Chapman’s constructive-discharge claim, the court asserted that Chapman “must
prove (1) the deliberateness of [Oakland’s] actions, motivated by [Chapman’s]
race[] and (2) [that] [Chapman’s] working conditions were objectively
intolerable.” JA.293-94 (citing Freeman v. Dal-Tile Corp., 750 F.3d 413,
425 (4th Cir. 2014)). The court faulted Chapman because she “did not present
sufficient evidence to create a question of fact as to whether [Oakland]
deliberately attempted to induce her to resign.” JA.294.
I. A reasonable jury could
conclude that Chapman experienced objectively hostile racial harassment that
can be imputed to Oakland.
To prove that
an employer is liable for a race-based hostile work environment, a plaintiff
must show “(1) unwelcome conduct; (2) that is based on [her] . . . race;
(3) which is sufficiently severe or pervasive to alter the . . . conditions
of [her] employment and to create an abusive work environment; and (4) which is
imputable to the employer.” Boyer-Liberto v. Fountainebleau Corp., 786
F.3d 264, 277 (4th Cir. 2015) (en banc). The district court addressed only the
fourth element (the sole element the parties disputed), JA.289-93, but
nonetheless we address both the third and fourth elements in the event Oakland
raises the third element as an alternative ground for affirmance. As explained
below, a reasonable jury could find that Chapman endured objectively severe or
pervasive harassment in July and August 2018 that is imputable to Oakland.
A. A reasonable jury could
conclude that Chapman experienced objectively hostile harassment.
The third element of a hostile-work-environment claim “requires
a showing that ‘the environment would reasonably be perceived, and is
perceived, as hostile or abusive.’” Boyer-Liberto, 786 F.3d at 277
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). “Whether
the environment is objectively hostile or abusive is ‘judged from the
perspective of a reasonable person in the plaintiff’s position.’” Id.
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
“[A]ll the circumstances” are relevant to that determination, including the
“severity” and “frequency” “of the discriminatory conduct,” “whether [the
conduct was] physically threatening or humiliating[,] . . .
and whether it unreasonably
interfere[d] with [the] employee’s work performance.” Harris, 510 U.S.
at 23.
Several
governing principles inform the severe-or-pervasive inquiry. First, this Court should
follow the approach of other circuits that examine whether the harassment in
question would be perceived as severe or pervasive by “a reasonable person of
the same protected class.” West v. Phila. Elec. Co., 45 F.3d 744,
753 (3d Cir. 1995) (emphasis added); see also, e.g., Torres v. Pisano,
116 F.3d 625, 632-33 (2d Cir. 1997) (analyzing objective hostility in sex- and
national-origin harassment claims from perspectives of a “reasonable woman” and
a “reasonable Puerto Rican”); Ellison v. Brady, 924 F.2d 872, 880-81
(9th Cir. 1991) (analyzing objective hostility in sexual harassment suit from
perspective “of a reasonable woman”). Some of this Court’s harassment decisions
refer to a “reasonable person” rather than a “reasonable person of the same
protected class.” E.g., Amirmokri v. Balt. Gas & Elec. Co.,
60 F.3d 1126, 1131 (4th Cir. 1995). However, the EEOC is not aware of any
decision by this Court that forecloses adoption of the latter standard. Such a
standard is critical to ensuring that Title VII covers all
discriminatory actions that constructively alter an employee’s terms or
conditions of employment.
Although this
Court should adopt the “reasonable person of the same protected class” standard
as a general rule, this standard is especially apt when analyzing the severity
of the racial slurs at issue here. The “reasonable person of the same protected
class” standard is consistent with this Court’s recognition that the n-word is
“pure anathema to African-Americans.” Spriggs v. Diamond Auto Glass, 242
F.3d 179, 185 (4th Cir. 2001). Accordingly, this Court should assess whether
the repeated use of that slur would have been objectively hostile to a
reasonable African American person in Chapman’s position.
Second, given
the young age of the child, it may well be that the child did not intend to
harm Chapman, and did not realize the likely effect of the words. Intent to
harm should not be the focus, however. Courts have explained that “whether a
workplace environment is sufficiently polluted for purposes of a [harassment]
claim should not be based on whether an alleged harasser possessed the
motivation or intent to cause discriminatory harm or offense.” Lounds v.
Lincare, Inc., 812 F.3d 1208, 1228 (10th Cir. 2015); see also, e.g.,
Ellison, 924 F.2d at 880 (conduct may be “classifie[d] . . . as unlawful
. . . harassment even when harassers do not realize that their conduct creates
a hostile working environment”). Accordingly, harassment based on a protected characteristic
may be actionable where it “has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive working environment.” Meritor Sav. Bank v. Vinson,
477 U.S. 57, 65 (1986) (quoting 29 C.F.R. § 1604.11(a)(3)) (emphasis
added). Here, a jury could conclude that even assuming the child had no intent to
harm Chapman, the July and August 2018 incidents nevertheless affected the “terms,
conditions, or privileges of [Chapman’s] employment.” Id. at 64 (quoting
42 U.S.C. § 2000e-2(a)(1)).
Third, in
assessing whether a reasonable person in Chapman’s position would have
perceived the July and August 2018 incidents to be severe, this Court should
take into account the close relationship between the child who uttered the
racial slurs and the individuals who ran Oakland. In Boyer-Liberto, this
Court explained that “the status of the harasser may be a significant factor”
“[i]n measuring the severity of harassing conduct.” 786 F.3d at 278. For
example, “a supervisor’s use of [a racial epithet] impacts the work environment
far more severely than use by co-equals.” Id. Likewise, an individual
engaging in harassing conduct may be “deem[ed]” a supervisor “in gauging the
severity of [the] conduct” when the victim of the harassment “reasonably”
believed that the individual “could make a discharge decision or recommendation
that would be rubber-stamped” by a decisionmaker. Id. at 279-80.
This case
differs from Boyer-Liberto in an important way: here it was a very young
child, and not an employee with some workplace authority, whose words are at
issue. In some circumstances, the young age of the speaker might diminish the
severity of the words. But two considerations suggest a reasonable person in
Chapman’s position could perceive the conduct of the child to be especially severe.
First, because the child had a familial relationship with Oakland’s managers—Steven,
Arlene, and Michael, see JA.96; JA.250; JA.262-63—a person in Chapman’s
shoes could have reasonably perceived, as in Boyer-Liberto, that the
individual who engaged in harassing conduct “had [the] ear” of decisionmakers. 786
F.3d at 279.
Second, it is
significant that the child told Chapman, “My daddy called you a lazy ass black
n*****,” JA.65-67, and that the child made other references to Chapman’s work
ethic, JA.76. Given this language, a reasonable person in Chapman’s shoes could
believe that the child—who, at age six, likely did not understand the meaning
of his words—could have heard these words from his father, who supervised the
kitchen where Chapman worked, JA.95; JA.228. That reasonable perception could
have enhanced the severity of the child’s words, regardless of where the child
heard the n-word. Taken together, these facts could heighten the serious nature
of the July and August 2018 incidents in the eyes of a reasonable jury.
Fourth, a
factfinder could consider events that occurred during Chapman’s first period of
employment at Oakland as background evidence bolstering the conclusion that
Chapman reasonably perceived the July and August 2018 slurs as objectively
hostile. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(Title VII plaintiffs may offer evidence of “prior acts as background
evidence”). In particular, a reasonable jury could credit Chapman’s evidence
that Steven and his wife presented Chapman with a cake with a noose image in
2015, JA.55-56, and that Arlene spoke of giving Chapman “slave numbers” in 2009,
JA.51-52. A jury could determine that these facts enhanced the severity of the 2018
incidents for at least two reasons. Cf. Porter v. Erie Foods Int’l,
Inc., 576 F.3d 629, 635-36 (7th Cir. 2009) (a “noose is a visceral symbol
of the deaths of thousands of African-Americans at the hand of lynch mobs” and
evokes “terror”); Miles v. DaVita Rx, LLC, 962 F. Supp. 2d 825, 831 (D.
Md. 2013) (manager’s reference to employees as slaves contributed to hostile work
environment).
To begin, a
reasonable person in Chapman’s position could have perceived past discriminatory
incidents involving the child’s grandparent and parents as confirmation that
challenging the July and August 2018 conduct could lead to unwelcome
consequences. Cf. Boyer-Liberto, 786 F.3d at 279 (relying on fact that
harasser told the plaintiff that she “had [the decisionmaker’s] ear and could
have [the plaintiff] fired”). In addition, a jury could conclude that viewing
the child’s conduct through the lens of his family members’ prior actions
rendered the July and August 2018 incidents more severe. From the perspective
of a reasonable person in Chapman’s shoes, the more recent conduct could have
seemed like a continuation of a pattern of outrageous discrimination, rather
than isolated incidents that were unlikely to be repeated.
Under these
principles, a reasonable jury could find that Chapman experienced objectively hostile
harassment. As explained, the n-word is extremely offensive, particularly to a
reasonable African American employee, Spriggs, 242 F.3d at 185, and
especially when directed at a specific individual, as was the case here. Chapman
was subjected to the n-word on three occasions, JA.65-67; JA.76; JA.79-81, while
this Court has said that even a single incident of “extremely serious”
harassment can be actionable. Boyer-Liberto, 786 F.3d at 278, 280 (two
uses of racial slur by individual deemed to be supervisor sufficient to
establish hostile work environment, regardless of “whether [slurs were] viewed
as a single incident or as a pair of discrete instances of harassment”). And as
discussed supra pp. 11-17, a reasonable person in Chapman’s position could
perceive the conduct to be especially severe because (1) she could believe that
the child repeated a supervisor’s (his father’s) slurs; (2) the child was a
close relation of the company owners; and (3) Chapman had previously endured
other racially hostile incidents involving that same supervisor and one of
those owners.
A jury could
also rely on additional relevant “circumstances,” Harris, 510 U.S. at 23,
in deeming Chapman’s work environment objectively hostile. A reasonable person in
Chapman’s position could find the conduct especially “humiliating,” id.,
because the child coupled slurs with work-ethic language, including calling
Chapman a “lazy ass black n*****” and telling her to “[g]et to work n*****,” JA.65-67;
JA.76, and because a child directed those offensive phrases at an adult.
Chapman also offered evidence that the July and August 2018 incidents
“interfere[d] with [her] work performance” and “discouraged [her] from
remaining on the job” to the point that she felt compelled to resign. Harris,
510 U.S. at 22-23; see JA.81. And even though the harassing conduct was
limited to three occasions, the child’s “constant” presence in the Oakland
kitchen, JA.62, could have led a reasonable person in Chapman’s position to
fear that another incident could occur at any time, bolstering the conclusion
that Chapman’s “workplace [was] permeated with discriminatory intimidation,
ridicule, and insult.” Harris, 510 U.S. at 21 (quotation marks
omitted).
B. A reasonable jury could
determine that liability for the harassment should be imputed to Oakland.
As this Court has
recognized, an employer is liable in negligence for race-based hostile work
environments created by third parties—individuals who are not employees of the
company—when the employer (1) “knew or should have known of the
harassment”—that is, had actual or constructive knowledge—and (2) “failed to
take prompt remedial action reasonably calculated to end the harassment.” Freeman,
750 F.3d at 422-23 (quotation marks omitted). Here, a reasonable jury could
conclude that (1) Oakland had actual knowledge of the first August
incident and failed to take appropriate action; and (2) Oakland had
constructive knowledge of all incidents and failed to take appropriate action.
1.
A jury could conclude that, at the latest, Oakland had actual knowledge
of the hostile work environment after the first August incident, and yet it failed
to take appropriate remedial measures.
As Oakland
did not dispute in district court, a reasonable jury could find that Steven—and
therefore Oakland—had actual knowledge of the first August 2018 incident.
See R.50 at 18 (D. Mem. Supp. Mot. Summ. J.). Evidence that management
knew of harassment establishes an employer’s actual knowledge. Freeman,
750 F.3d at 423. Steven’s actual knowledge was attributable to Oakland because
he was a manager (as Oakland conceded); in fact, he was in charge of the
facility on the day of the August 2018 incidents. JA.95-97; JA.238-39; see
also R.50 at 3, 19 (D. Mem. Supp. Mot. Summ. J.).
A jury could further
reasonably conclude that Steven (and therefore Oakland) failed to take
appropriate remedial action after the first August incident. As this Court has
underscored, even where an employer took some remedial measures in response to
workplace harassment, a jury may nevertheless impute liability to the employer
if those measures were not “reasonably calculated to end the harassment.” EEOC
v. Cent. Wholesalers, Inc., 573 F.3d 167, 177-78 (4th Cir. 2009) (quotation
marks omitted); see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319
(4th Cir. 2008) (same); Paroline v. Unisys Corp., 879 F.2d 100, 106-07 (4th Cir. 1989) (same), vacated in part on other grounds, 900 F.2d 27 (4th Cir.
1990) (en banc). In assessing
Oakland’s response, a jury could consider the severity of the harassing conduct
because, as this Court has explained, “the reasonableness of a company’s
actions” in response to harassment “depends, in part, on the seriousness of the
underlying conduct.” Pryor v. United Air Lines, Inc., 791 F.3d 488, 498
(4th Cir. 2015) (citing Xerxes, 639 F.3d at 675-76).
To begin, evidence
that Steven’s response “was ineffectual in stopping the harassing conduct” is one
“significant” fact supporting the conclusion that his response was unreasonable.
Pryor, 791 F.3d at 499; see Xerxes, 639 F.3d at 669. After
Steven’s intervention, the child immediately repeated the n-word to Chapman. JA.79-81.
Although Steven’s failure to prevent future harassment is not “dispositive,”
“the effectiveness of an employer’s actions remains a factor in evaluating the
reasonableness of the response.” Pryor, 791 F.3d at 499.
Second, a
jury could deem Steven’s response “lukewarm,” especially given the severity of
the harassment. Id. After Steven spanked the child, he brought the child
into the kitchen and instructed him to apologize to Chapman. JA.273-75. But, as
Steven witnessed, the child did not apologize. JA.273-76. A jury could rely on
Steven’s failure to ensure that the child took the basic step of apologizing to
Chapman—and the fact that Steven himself did not apologize for the child’s
behavior—in finding that Steven’s actions were negligent. See id.; cf.,
e.g., Xerxes, 639 F.3d at 671-72 (noting, in concluding that
employer’s response was adequate, that, inter alia, harassers apologized
to the victim).
Third, a jury
could base a negligence finding on the determination that Steven should not
have left the young child unattended with Chapman after the child uttered the
n-word and Steven did not ensure an apology for this conduct. See, e.g.,
Paroline, 879 F.2d at 106 (fact that employee was “still exposed” to
harassing coworker “cast doubt on the adequacy of [the employer’s] remedies”); cf.
Vance, 570 U.S. at 449 (“[e]vidence that an employer did not monitor the
workplace” is relevant to whether it was negligent in preventing harassment); Xerxes,
639 F.3d at 670 (explaining that separating the harasser and victim through “scheduling
changes and transfers” has been deemed reasonable in certain circumstances).
Removal of the harasser may be especially apt in cases of third-party
harassment (as compared to coworker harassment) because the company does not
have independent obligations to the harasser arising out of the
employer-employee relationship. Cf. Christian v. Umpqua Bank, 984 F.3d
801, 813 (9th Cir. 2020) (noting that bank ultimately “direct[ed]” customer who
harassed plaintiff “not to return,” but explaining that a jury could deem
response “too little too late”).
In reaching a contrary conclusion, the district court reasoned
that spanking the child was an action “directed to reasonably stop the harassment.” JA.292. The court erred,
however, by not giving any weight to the “significant” fact that Steven’s
intervention was ineffective, Pryor, 791 F.3d at 499, and by not taking
account of the “seriousness” of the harassment Chapman endured when assessing “the
reasonableness of [Oakland’s] actions,” id. at 498. Moreover, the court usurped
the role of the jury in assuming that a reasonable jury would be compelled to
agree with its assessment of whether Steven’s actions were reasonable on this
record. Contrary to the court’s conclusion, as explained, a reasonable jury
could determine that Steven was negligent in failing to demand an apology by
the child (or provide one himself) and by leaving the child unattended with
Chapman, especially given the severity of the racial language leveled at
Chapman.
2. A jury could conclude that
Oakland had constructive knowledge of the hostile work environment, and yet it
failed to take appropriate remedial measures.
A reasonable
jury could further conclude that Oakland had constructive knowledge of
the harassment as early as the July incident. “Knowledge of harassment can be
imputed to an employer if a reasonable [person], intent on complying with Title
VII, would have known about the harassment.” Ocheltree v. Scollon Prods.,
Inc., 335 F.3d 325, 334 (4th Cir. 2003) (en banc) (quotation marks omitted).
“An employer cannot avoid Title VII liability for [third-party] harassment by
adopting a ‘see no evil, hear no evil’ strategy.” Id.
Significantly,
this Court has held that an employer that “fails to provide reasonable
procedures for victims to register complaints” “may be charged with
constructive knowledge” of harassment even if the victim did not complain. Id.
at 334-35 (holding that employer had constructive knowledge of harassment about
which plaintiff did not complain where it was “debatable whether the company
actually ha[d] a sexual harassment policy” and, even if it did, a jury could
reasonably find that it failed to provide reasonable avenues of complaint); see
also Vance, 570 U.S. at 449 (noting that evidence that an employer “failed
to provide a system for registering complaints” is relevant to whether it was
negligent in preventing harassment).
Here, there
is no evidence that Oakland maintained a harassment policy of any kind,
much less a formal policy specifying reporting procedures for harassment
complaints. Although Arlene testified that the company had an employee
handbook, she could not remember if the handbook included a harassment policy,
and she acknowledged that she never gave Chapman (or any other employee) a
copy. JA.246-48. Moreover, even if Oakland had an appropriate harassment
policy, it is doubtful that the company could “reasonabl[y],” Ocheltree,
335 F.3d at 334, insist that Chapman report the child’s harassment to the
company’s managers, all of whom were family members of the child, especially
because some of them had engaged in racist conduct. Oakland thus should be
charged with constructive knowledge of the harassment under Ocheltree.
The district
court did not evaluate whether Chapman established constructive knowledge,
apparently relying instead on a statement in Xerxes that “an employer cannot
be expected to correct harassment unless the employee makes a concerted effort
to inform the employer” of the problem “under its reasonable procedures.” 639
F.3d at 674 (citation omitted). See JA.90. But the issue here is the
distinct question whether knowledge of the child’s harassment can be imputed to
Oakland for purposes of establishing the company’s negligence. And, as
explained, this Court has squarely held that knowledge of harassment can be
imputed to a company in the absence of actual notice, so long as a reasonable
employer would have known about it. Ocheltree, 335 F.3d at 334. Indeed, this
Court has recited these constructive-notice principles at the same time it has
recapitulated the proposition on which the district court relied, underscoring
that that proposition does not necessarily doom an employee’s third-party
harassment claim if she did not inform her employer of the harassment. See,
e.g., Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006). Any
other reading of Xerxes would conflict with Ocheltree and other
binding decisions of this Court.
In addition
to finding that Oakland had constructive notice of the July and August
incidents, a reasonable jury could deem inadequate Oakland’s response to the
racial harassment Chapman experienced. Before the first August incident,
Oakland failed to take any steps to prevent the child’s conduct. Also,
as explained supra pp. 20-24, even though Oakland, through Steven, took
some remedial action after the first August incident, a jury could conclude
that Oakland’s response was not “reasonably calculated to end the harassment.” Cent.
Wholesalers, 573 F.3d at 177-78.
II. The district court applied
the wrong standard in analyzing Chapman’s constructive-discharge claim.
The district
court applied the wrong legal standard in analyzing Chapman’s constructive-discharge
claim. According to the court, “[a]n employee is considered constructively
discharged if an employer deliberately makes the working conditions intolerable
in an effort to induce the employee to quit.” JA.293 (citing Freeman,
750 F.3d at 425). In particular, the court stated, Chapman was required to
“prove (1) the deliberateness of [Oakland’s] actions, motivated by [Chapman’s]
race[] and (2) [that Chapman’s] working conditions were objectively
intolerable.” JA.293-94 (citing Freeman, 750 F.3d at 425). The court rejected
Chapman’s claim on the sole ground that she offered insufficient evidence to
“prove [] the deliberateness of [Oakland’s] actions.” Id.
However, the
Supreme Court has clarified—and this Court has held—that Title VII plaintiffs
alleging constructive discharge are not required to demonstrate
“deliberateness.” The district court relied on this Court’s decision in Freeman
for a constructive-discharge standard that included a “deliberateness”
requirement. But after Freeman, this Court held that “‘deliberateness’
is no longer a component of a constructive discharge claim” “as a result of
intervening Supreme Court case law.” EEOC v. Consol Energy, Inc.,
860 F.3d 131, 144 (4th Cir. 2017). For this proposition, Consol cited Green
v. Brennan, 136 S. Ct. 1769 (2016), which also post-dated Freeman.
As Consol
explained, the Supreme Court “expressly rejected a ‘deliberateness’ or intent
requirement” in Green. Consol, 860 F.3d at 144. Instead, Green “clearly
articulated the standard for constructive discharge, requiring objective
intolerability—‘circumstances of discrimination so intolerable that a
reasonable person would resign.’” Id. (quoting Green, 136 S. Ct.
at 1779) (some quotation marks and internal citation omitted). Green explained
that, if an employee establishes intolerability, “[w]e do not also require
[the] employee to come forward with proof—proof that would often be difficult
to allege plausibly—that not only was the discrimination so bad that he had to
quit, but also that his quitting was his employer’s plan all along.” Green,
136 S. Ct. at 1779-80.
Accordingly, Consol
underscored, Green “abrogate[d]” this Court’s “prior case law to the
extent it is to the contrary” to the Supreme Court’s rejection of any
deliberateness requirement. 860 F.3d at 144. In other words, Green abrogated
Freeman and other precedents of this Circuit that recite a “deliberateness”
requirement. Because the district court erred in applying such a requirement,
this Court should reverse the grant of summary judgment on the constructive-discharge
claim.
For the foregoing reasons, the judgment of the district
court should be reversed.
Respectfully submitted,
GWENDOLYN
YOUNG REAMS
Acting General Counsel
JENNIfer
s. goldstein
Associate General Counsel
SYDNEY
A.R. FOSTER
Assistant General Counsel
/s/
Anne W. King
ANNE
W. KING
Attorney, Appellate Litigation
Services
Office of General Counsel
Equal Employment Opportunity
Commission
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 921-2748
anne.king@eeoc.gov
May 26, 2021