TABLE OF CONTENTS

I. Sex-Based Restriction of Job Duties and Opportunities for Advancement Can Violate Title VII by Adversely Affecting Terms, Conditions, or Privileges of Employment. 13

A.... Title VII Prohibits Discrimination in All Terms, Conditions, or Privileges of Employment, Not Just “Ultimate” Employment Decisions. 15

B.... A Reasonable Jury Could Find Wallace’s Permanent Relegation to the Duties of a Lower-Ranked Position to be an Ultimate Employment Decision. 17

II. Performance Has Not Carried Its Burden of Proving It Is Entitled to Prevail on the Faragher/Ellerth Defense as a Matter of Law. 21

A.... A Jury Could Reasonably Find that Wallace’s Diminution of Job Responsibilities, Suspension, and Termination are Tangible Employment Actions that Preclude the Faragher/Ellerth Defense. 23

B.... Even if the Faragher/Ellerth Defense Applies, Material Fact Disputes Exist as to Both Elements. 26

III. Title VII Protects Wallace from Retaliation for Complaining About Sex-Based Mistreatment and Refusing to Submit to Her Supervisor’s Sexual Demands. 31

CONCLUSION.. 35

CERTIFICATE OF SERVICE.. 37

CERTIFICATE OF COMPLIANCE.. 38

TABLE OF AUTHORITIES

Cases

Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. 2009)......... 24

Alvarado v. Tex. Rangers, 492 F.3d 605 (5th Cir. 2007)...... 17, 19

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473 (5th Cir. 2008).................................................................................................... 27, 28

Baisley v. Int’l Ass’n of Machinists & Aerospace Workers, 983 F.3d 809 (5th Cir. 2020)................................................................ 16

Brown v. United Parcel Serv., Inc., 406 F. App’x 837 (5th Cir. 2010)................................................................................................. 32

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) 11, 23, 24, 26

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).................................................................................................... 20, 23

Casiano v. AT&T Corp., 213 F.3d 278 (5th Cir. 2000).. 21, 24, 26

Chambers v. Dist. of Columbia, 988 F.3d 497 (D.C. Cir. 2021). 16

Cherry v. Shaw Coastal, Inc., 668 F.3d 182 (5th Cir. 2012) 22, 33

Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005).................................................................................................... 27, 28

Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010)................................................................................. 34

Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271 (2009)......................................................................... 31, 34

Davenport v. Edward D. Jones & Co., 891 F.3d 162 (5th Cir. 2018)................................................................................................. 23

EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc)............................................................................. 27, 28, 29

EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015).. 35

EEOC v. Rite Way Serv., Inc., 819 F.3d 235 (5th Cir. 2016).... 31, 33, 34

EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007)..... 33

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409 (5th Cir. 2003)........................................................................................................... 14

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)........... 11, 23

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996)................................................................................................. 22

Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986).............. 27

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010)........................................................................................................... 30

Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642 (5th Cir. 2002)................................................................................................. 23

Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987 (5th Cir. 2005)........................................................................................................... 14

L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978). 16

Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157 (5th Cir. 2007).......................................................................... 21, 30

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007)................................................................................................. 34

Macias v. Sw. Cheese Co., 624 F. App’x 628 (10th Cir. 2015).... 22

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)........................ 15

Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001)................................................................................. 30

Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000)............ 35

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) 16

Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205 (5th Cir. 2016) 27

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002)........................................................................................................... 25

Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398 (5th Cir. 1999).......................................................................... 11, 19

Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999)....... 19, 28

Smith v. Ochsner Health Sys., 956 F.3d 681 (5th Cir. 2020)..... 26

Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326 (5th Cir. 2000)................................................................................................. 26

Thompson v. City of Waco, 764 F.3d 500 (5th Cir. 2014)... passim

Thompson v. Naphcare, Inc., 117 F. App’x 317 (5th Cir. 2004) 23

Waltman v. Int’l Paper Co., 875 F.2d 468 (5th Cir. 1989).......... 33

Watkins v. Tregre, 997 F.3d 275 (5th Cir. 2021).......................... 25

Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 702 (5th Cir. 2016)................................................................................................. 31

Williams v. U.S. Dep’t of Navy, 149 F. App’x 264 (5th Cir. 2005)........................................................................................................... 18

Statutes

42 U.S.C. § 2000e-2................................................................ 1, 13, 15

42 U.S.C. § 2000e‑3........................................................................... 31

Other Authorities

Br. for the United States as Amicus Curiae, 2020 WL 1433451, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020) (No. 18-1401)................................................................................... 15

Br. for the United States as Amicus Curiae, 2021 WL 2075465, Hamilton v. Dallas Cnty. (5th Cir. No. 21-10133) (filed May 21, 2021)................................................................. 15, 16

Rules

Fed. R. App. P. 29................................................................................ 2

STATEMENT OF INTEREST

Congress tasked 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 broadly prohibits sex discrimination with respect to an individual’s “terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). Here, the record indicates that the plaintiff lost core job responsibilities because, in her supervisor’s words, she “was a woman and … had tits and an ass.” ROA.799. Nonetheless, the district court rejected her discrimination claim because it believed she needed—and failed—to show she had suffered an “ultimate” adverse employment decision.

Meanwhile, the court accepted that the evidence reflects actionable levels of sexual harassment, including from a supervisor who signed off on plaintiff’s suspension and termination soon after she refused to reciprocate a photo he sent of his exposed genitalia or let him grab her breasts. But the court held that a reasonable jury would necessarily find the employer had carried its burden of proof on an affirmative defense to liability that is unavailable where (1) harassment is linked to tangible employment actions, or (2) the employer fails to show both that it acted reasonably to prevent harassment and that its employee unreasonably failed to prevent harm. Finally, the district court held the plaintiff had not engaged in activity that Title VII protects against retaliation when she complained multiple times about gender-based mistreatment and rejected her supervisor’s persistent, obscene sexual propositions.

Because the EEOC has a strong interest in the application of the correct legal standards to Title VII claims, the EEOC offers its views to this Court. Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES [1]

1. Did the district court err in holding that defendant’s gender-motivated refusal to let plaintiff perform the job duties that differentiated her position from a lower-ranked custodial role could not constitute actionable discrimination as a matter of law?

2. Did the district court err in granting summary judgment based on the Faragher/Ellerth defense, thus relieving defendant from liability for actionable sexual harassment as a matter of law when plaintiff was terminated after rejecting a supervisor’s propositions, harassment was open and known to multiple layers of management, and plaintiff made repeated complaints up her chain of command?

3. Did the district court err in holding that plaintiff enjoys no statutory protection from retaliation for complaining of sex-based mistreatment and rejecting her supervisor’s repeated sexual demands?

STATEMENT OF THE CASE

Statement of the Facts

Defendant-Appellee Performance Contractors, Inc. (Performance) hired Plaintiff-Appellant Magan Wallace as a construction-site safety monitor in 2016. ROA.148-49, 889. Performance laid Wallace off during a reduction in force but quickly rehired her into a higher-paid “Helper” position on another construction job because, Wallace testified, her prior supervisors “were confident in [her] work and wanted to help advance [her] skill set.” ROA.149, 797. Per the job description, a Helper’s duties include ascending ladders and scaffolds to “assist mechanics” like pipefitters and welders with “assembly” and “construction.” ROA.162; see ROA.875.

Wallace answered up a strict chain of command. ROA.917 (supervisor’s testimony that Performance is “a firm, sta[un]ch believer in the chain of command”). Wallace’s husband, Foreman Kristopher Tapley, was her direct supervisor; Tapley reported to General Foremen Charles Casey and Justin Quebodeaux, who both reported to Superintendent Luke Terro; Area Manager Matthew Gautreau supervised Terro. ROA.870-71, 895. Construction Manager Ambrose Ferachi sat “over the entire project.” ROA.922.

Wallace was the only female Helper among the hundred or so people working in her area. ROA.828, 896. Wallace repeatedly heard that Ferachi “didn’t care for women on his projects,” and whenever she recommended a female job applicant, she testified, her supervisors said, “[N]o, we can’t, Ferachi doesn’t like women on the project.” ROA.796-97. Meanwhile, there was evidence of sexualized workplace conduct. For example, Wallace remembers Quebodeaux and others “pulling the back of their pants down and showing their rear ends” and Casey professing to need a “bucket of blowjobs.” ROA.812, 820. And Tapley testified that Ferachi once approached him, asked if he had seen a coworker’s breasts, and said, “[Y]ou ought to, they are nice.” ROA.878.

As to job duties, Wallace was restricted to filling water coolers, sweeping, and cleaning—housekeeping tasks typically performed by lower-ranked, lower-paid Laborers. ROA.803, 805; see ROA.923-24 (Casey describing Laborer as a “non-skilled craft” meant to “sweep all day,” not “be taught skills”). Wallace testified that Casey refused requests she made “several times a day every day” that he let her assist the fitters and welders working on elevated scaffolds among the site’s pipe racks. ROA.802. As Tapley explained, Casey “wasn’t going to let” Wallace work at elevation even though she had experience doing so and was known to be “more than capable.” ROA.876.

Casey explained his refusal “[e]very time” Wallace sought elevated work, she testified, by saying that “females stay on the ground” and that because she “was a woman and … had tits and an ass,” she could not wear the necessary safety harness. ROA.799, 801-02. Tapley recalls Casey making these remarks multiple times a week at twenty- to thirty-person crew meetings that included Quebodeaux, Terro, and sometimes Gautreau, prompting Quebodeaux to privately comment to Tapley on their inappropriateness. ROA.877-78, 881. Casey admits he “very easily could have said, due to tits and an ass, no female is allowed in the rack” because Performance had no suitable harnesses; indeed, he cited this limitation as “probably one of the reasons” a female pipefitter he knew resigned. ROA.927-28. But Casey testified that, harnesses aside, he would not have let Wallace into the racks because, in his recollection, she was “[n]ot anything more than a [L]aborer.”^{^[2]} ROA.926. Wallace and Tapley testified, though, that Performance allowed males with less experience than Wallace—including Laborers—into the racks. ROA.814-15, 877.

Wallace could not get elevated work from other supervisors either. She reports that Terro would refuse, telling her “upper management and the client didn’t want to see women working elevated.” ROA.803. Gautreau, meanwhile, deferred to Casey and Terro. ROA.896-97. Ultimately, Wallace testified, the only time she was allowed off the ground was one three-day period when Casey let her work in a lift after saying that if Tapley “did not have a problem with the way [her] … tits and ass looked in a harness, … he didn’t have a problem with it.” ROA.800. But Wallace testified that Quebodeaux later told her “upper management[]” had seen her in the lift and ordered her supervisors “not to have [her] up there again.” ROA.804.

Despite refusing Wallace work in the racks, Gautreau thought it “ma[de] sense” that she wanted to “go up there and hone her skills and get better so she could move up.” ROA.895. As Wallace testified, “primarily[] all the work” on an elevated project is in the rack, and her exclusion kept her from “shadow[ing] or mentor[ing] under” experienced craftspeople and developing construction skills. ROA.801, 805. Since the “commonly held belief of how you advance” is by “[w]orking in the field, learning new things, practicing them, presenting yourself doing” them, Wallace testified, her loss of experience may have hindered advancement into higher-paying roles. ROA.829; see ROA.804. And her supervisors agreed that people who “advanced up the rack did so … because of their performance in the field,” and that a worker with experience at elevation “[a]bsolutely” was “a more valuable asset” than one without. ROA.896, 902 (Gautreau); see ROA.935 (Casey agreeing that a Helper who can work in the rack “is more useful”).

During June and July 2017, Wallace testified, Terro asked multiple times to “grab and squeeze [her] breasts”—requests that she “immediately rejected”—and a coworker, Charles LaPrairie, unwelcomely massaged her shoulders after telling her she was in her “sexual prime.” ROA.807, 810-11. Wallace reported LaPrairie to her supervisors, who contacted Human Resources (HR), but Performance took no disciplinary action and Gautreau admits HR’s investigation never “got resolved.” ROA.811-12, 899-900. And in one incident Wallace found especially “upset[ting],” Terro texted her a photo of his exposed genitals, asking for a picture of her breasts in return. ROA.807, 810. Wallace testified that she was “too shocked” to reply, and that when Terro approached her and said, “[I]t took guts to send that to you,” she shrugged and said, “I’m sorry.”[3] ROA.809, 811.

Wallace’s time at Performance ended soon after. Wallace missed work for a doctor’s appointment on August 16, 2017, and the parties dispute whether she notified management she would be absent. ROA.272, 817-18. But although Performance has a graduated disciplinary policy requiring multiple warnings—of which Wallace had none—prior to a suspension, Wallace received a three-day suspension for “[n]o [c]all, [n]o [s]how” and “[e]xcessive absents and early outs.” ROA.175; see ROA.820, 892, 972. Gautreau claims he made the suspension decision, but only Terro’s signature appears on the suspension notice, and Casey testified that he, too, played a part in imposing attendance-related discipline. ROA.175, 932, 1206. Over the following week, Wallace testified, she made daily, unsuccessful efforts to reach HR, until around August 23—having received no response from HR despite multiple phone and in-person messages—she gave up and sent a resignation letter. ROA.818-19. Performance denies receiving the letter, and a few weeks later Terro signed a Separation Notice purporting to fire Wallace. ROA.153, 177. Gautreau says he instructed Terro to do so because Wallace had not returned to work following suspension. ROA.1206-07.

During Wallace’s employment, Performance’s employee handbook prohibited discrimination and harassment, and provided: “Any employee who believes that he or she has been the victim of any type of harassment or who has any knowledge of that kind of behavior is urged to report such conduct immediately to [HR].” ROA.170. But Wallace, “figur[ing] you go through a chain of command,” complained to her supervisors instead, telling Terro and Gautreau multiple times that Casey “didn’t want [her] to work in the rack because [she] was a female.” ROA.799-800. After they took no action, Wallace thought reporting Casey to HR would be “pointless” because “if [supervision] can’t fix their own problems, then why would HR be able to fix it.” ROA.830. Although supervision’s inaction also initially discouraged Wallace from reporting Terro’s obscene photo or sexual propositions, she ultimately shared Terro’s conduct with her direct supervisor, Tapley. ROA.873-74; see ROA.810 (asking “why would [supervision] back me now” if “I’ve been reporting my other issues in the field and they haven’t helped me or backed me”). But although Tapley then went to HR twice to file a report, nobody was present and nobody acted on his messages requesting a return call. ROA.874.

Wallace then brought this Title VII sex-discrimination, sexual harassment, and retaliation suit. ROA.20-26. The district court awarded Performance summary judgment on all claims. ROA.1499.

District Court’s Decision

The district court first rejected Wallace’s discrimination claim. ROA.1487-89. Relying on this Court’s precedent holding that Title VII “address[es] only ‘ultimate employment decisions,’” the court held that Casey’s refusal to let Wallace work in the rack did not qualify. ROA.1488-89 (quoting Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014)). The court did not see the refusal as a “de facto demotion” absent evidence of a “concrete” impact like “reduction in pay or the denial of a promotion,” and it noted that housekeeping duties fell within Wallace’s job description. ROA.1489 n.1. Nor did the court perceive an actionable loss of “opportunities to train and advance” because it saw no “‘significant evidence’ showing that [the loss] would tend to affect” Wallace’s future “employment status or benefits.” ROA.1488-89 (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999)).

Next, the court held that a jury could find Wallace experienced actionable sexual harassment, but that Performance was indisputably entitled to prevail on an affirmative defense derived from Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (Faragher/Ellerth defense). ROA.1489-95. This defense relieves an employer of liability for a supervisor’s harassing conduct if the harassment has no nexus to any tangible employment action and the employer proves that (1) it “exercised reasonable care to prevent and promptly correct any harassment” and (2) the victim “unreasonably failed to take advantage” of the employer’s “preventive or corrective opportunities … or to otherwise avoid harm.”^{^[4]} ROA.1494.

To begin, the court found “no nexus” between Casey or Terro’s harassing conduct and any “tangible employment action.” ROA.1493-94. Cross-referencing its discrimination analysis, the court held that Casey’s refusal to let Wallace work in the rack was insufficient. ROA.1493 n.2. Nor, the court held, could a reasonable jury link Wallace’s suspension and termination to harassment because Wallace “did not expressly object to, report, or otherwise complain of the incidents involving Terro or Casey” and because Gautreau, a non-harasser, claimed he was the decisionmaker. ROA.1493-94.

Moving to the defense’s elements, the court held Performance acted adequately to prevent harassment by promulgating an antiharassment policy that directed employees to report violations to HR. ROA.1495. And it further held that Wallace had presented no “reasonable basis for failing to take advantage” of this “reporting system.” ROA.1495.

Finally, the court rejected Wallace’s retaliation claim because, in its view, no reasonable jury could find she engaged in statutorily protected opposition to unlawful discrimination. ROA.1495-98. Stating that Wallace had “not voice[d] any objection to Terro or Casey’s conduct before her suspension,” the court focused on Wallace’s complaint about LaPrairie and her requests to work at elevation. ROA.1496. The court held that neither constituted protected opposition because Wallace could not reasonably have believed LaPrairie’s conduct “alone” was unlawful and because her complaints about the rack were “general gripes,” insufficient to make Performance aware that she was complaining about illegal sex discrimination. ROA.1498.

ARGUMENT

I. Sex-Based Restriction of Job Duties and Opportunities for Advancement Can Violate Title VII by Adversely Affecting Terms, Conditions, or Privileges of Employment.

Title VII forbids sex discrimination with respect to an employee’s “terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e‑2(a)(1). Casey’s repeated (and admitted) remarks that Wallace, and women generally, could not work at elevation “due to tits and an ass” and because “females stay on the ground,” ROA.799, 802, show “on [their] face that an improper criterion served as a basis” for his work assignments and so easily qualify as evidence that directly supports a reasonable inference of discrimination. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005) (quoting Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003)). But although discrimination permeated Wallace’s daily work duties, the district court, relying on this Court’s extratextual requirement that a plaintiff establish an adverse “ultimate employment decision[],” held as a matter of law that discrimination did not affect her terms, conditions, or privileges of employment. ROA.1488-89 (quoting Thompson, 764 F.3d at 503).

This holding was wrong for two reasons. First, this Court’s “ultimate employment decision” requirement contravenes Title VII’s plain meaning and should be reconsidered at an appropriate juncture. Second, even applying the requirement, a reasonable jury could find it satisfied here.

A. Title VII Prohibits Discrimination in All Terms, Conditions, or Privileges of Employment, Not Just “Ultimate” Employment Decisions.

The United States and EEOC have taken the position, including in another case pending before this Court, that this Court’s “ultimate employment decision” requirement “has no foundation in Title VII’s text, Congress’s purpose, or [the Supreme] Court’s precedents.” Br. for the United States as Amicus Curiae (Peterson Br.) at 6, 2020 WL 1433451, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020) (dismissing certiorari petition) (No. 18-1401); see Br. for the United States as Amicus Curiae (Hamilton Br.), 2021 WL 2075465, Hamilton v. Dallas Cnty. (5th Cir. No. 21-10133) (filed May 21, 2021).

As the briefs have explained, “[t]he ordinary meaning of the phrase ‘terms, conditions, or privileges of employment’ plainly includes” aspects of one’s daily work duties, such as “the location and nature of [one’s] job assignment.” Peterson Br. at 7-8 (quoting 42 U.S.C. § 2000e‑2(a)(1)). The Supreme Court has accordingly recognized that Title VII’s use of this broad phrase “evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (quoting L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)); see Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (explaining that Title VII does not use “terms” and “conditions” only “in the narrow contractual sense”).

While this Court must follow circuit precedent until it is overruled by the en banc Fifth Circuit or the Supreme Court, Baisley v. Int’l Ass’n of Machinists & Aerospace Workers, 983 F.3d 809, 811 (5th Cir. 2020), we again urge this Court to reconsider, when appropriate, “any precedent limiting its interpretation” of Title VII’s antidiscrimination provision “to ‘ultimate employment decisions.’” Hamilton Br. at 10. The D.C. Circuit is now reconsidering its own judicial gloss on Title VII’s text. See Chambers v. Dist. of Columbia, 988 F.3d 497, 503 (D.C. Cir. 2021) (Tatel and Ginsburg, JJ., concurring) (urging review), vacated and reh’g en banc granted (No. 19-7098) (oral argument held Oct. 26, 2021). And Wallace’s case, where a supervisor has admitted to barring women entirely from certain higher-level job tasks, ROA.927-28, offers a compelling opportunity for this Court to do the same.

B. A Reasonable Jury Could Find Wallace’s Permanent Relegation to the Duties of a Lower-Ranked Position to be an Ultimate Employment Decision.

Even assuming an ultimate employment decision is required, the district court wrongly held that no reasonable jury could find one here. While this Court views “hiring, firing, demoting, promoting, granting leave, and compensating” as quintessentially ultimate, it recognizes that transfers, reassignments, or a less formal “change in or loss of job responsibilities” also qualify if they represent “the equivalent of a demotion” or are otherwise sufficiently “significant and material.” Thompson, 764 F.3d at 503-04. And this Court has held that withholding professional opportunities may likewise be actionable if the opportunities sought would, similarly to a promotion, “provide[] greater responsibility or better job duties; provide[] greater opportunities for career advancement; [or] require[] greater skill, education or experience.” Alvarado v. Tex. Rangers, 492 F.3d 605, 614 (5th Cir. 2007). Casey’s refusal to let Wallace develop construction skills by performing any non-custodial Helper tasks can qualify as an ultimate employment decision under these precedents.

Viewed in the light most favorable to Wallace, as required on summary judgment, the evidence shows Casey viewed Wallace as a Laborer and accordingly barred her from construction work and confined her to housekeeping tasks characteristic of that lower-ranked, lower-paid role. As a result, Wallace—like at least one other woman who was driven to quit—could not gain hands-on experience that Performance’s witnesses agreed would make her more valuable on future jobs. See supra at 5-6.

Based on this evidence, a reasonable jury could find that, rather than suffering a “mere ‘loss of some job responsibilities,’” Wallace was “strip[ped]” of her “material job functions” so she “no longer occupie[d] the position of a [Helper]” and was left with “less interesting” and “less prestigious” work, “fewer opportunities for advancement,” and “significantly diminished responsibilities.” Thompson, 764 F.3d at 504-05 (quoting Williams v. U.S. Dep’t of Navy, 149 F. App’x 264, 269-70 (5th Cir. 2005)). Similarly, a jury could reasonably find that Performance refused Wallace work that “provide[d] greater responsibility or better job duties; provide[d] greater opportunities for career advancement; [and] require[d] greater skill, education, or experience.” Alvarado, 492 F.3d at 614.

The district court’s reasons for concluding otherwise were flawed. While the court saw no evidence that Wallace’s inability to work in the rack caused “a reduction in pay or the denial of a promotion” or affected her “employment status or benefits,” ROA.1489 & n.1, such evidence was unnecessary. See Alvarado, 492 F.3d at 613 (noting that a material change in job duties “need not result in a decrease in pay, title, or grade” to be actionable, if it results in work that “proves objectively worse” (quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999))); id. at 614 (explaining that withholding “objectively better” assignments can be actionable, “even if the new [duties] would not have entailed an increase in pay or other tangible benefits”). The court likewise erred in relying on Shackelford, ROA.1489, where this Court found no ultimate employment action because the employer refused to train an employee on software she used “occasionally” to fulfill “peripheral” duties that were not “a significant part of her job.” 190 F.3d at 407 & n.7. Here, as explained, a reasonable juror could find the withheld job duties were central to Wallace’s Helper job and to building core skills necessary for advancement.

Nor, contrary to the district court’s view, does it matter that the tasks to which Casey limited Wallace fell within her job description. ROA.1489 n.1. Higher- and lower-ranked jobs often have overlapping duties, and stripping away all responsibilities that distinguish the former from the latter is no different from formally changing the job title. See Thompson, 764 F.3d at 505 (holding detective plausibly alleged ultimate employment decision where he claimed “he no longer occupie[d] the position of a detective” and functioned only as “an assistant to other detectives” owing to restrictions on his ability to seek evidence, work undercover, or lead investigations); cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006) (rejecting argument that “reassignment of duties cannot constitute retaliatory discrimination where … both the former and present duties fall within the same job description”).

II. Performance Has Not Carried Its Burden of Proving It Is Entitled to Prevail on the Faragher/Ellerth Defense as a Matter of Law.

Title VII prohibits sexual harassment that causes “a tangible employment action, such as a demotion or denial of a promotion,” or is so severe or pervasive that it alters the conditions of employment by creating a “hostile or abusive working environment.” Lauderdale v. Tex. Dep’t of Crim. Justice, 512 F.3d 157, 162-63 (5th Cir. 2007). Where the harasser is a supervisor, “the employer is vicariously liable per se” if there is “a nexus” between the harassment and a “tangible employment action.” Casiano v. AT&T Corp., 213 F.3d 278, 283-84 (5th Cir. 2000). Absent such a nexus, the employer remains liable unless it carries the burden of proving both that: (1) it “exercised reasonable care to prevent and correct [harassment] promptly” and (2) “the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. at 284.

The district court here properly held that a reasonable jury could find Wallace experienced actionable harassment. ROA.1490-93. Casey’s “offensive,” sex-based comments about Wallace’s anatomy, made “two or three times a week,” often “in front of co-workers,” may alone have created a hostile work environment. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996). Additionally, Wallace endured Terro’s repeated sexual propositions, including an unwanted photo of his genitals. See Macias v. Sw. Cheese Co., 624 F. App’x 628, 638 (10th Cir. 2015) (holding that “[a] reasonable jury could conclude that [a supervisor’s] act of photographing his genitals” to share with coworkers “is serious and similar to [an] act of exposing himself”). And Wallace’s coworker, LaPrairie, made intrusive physical contact with her while remarking on her sexual vitality. See Cherry v. Shaw Coastal, Inc., 668 F.3d 182, 189 (5th Cir. 2012) (observing that even a single instance of intimate touch can be severe if combined with sexually suggestive remarks).

But the district court was wrong that the Faragher/Ellerth defense relieves Performance of liability for Casey and Terro’s harassing conduct as a matter of law. See ROA.1493-95. First, a reasonable jury could find Wallace’s harassment was connected to at least two tangible employment actions, foreclosing the defense altogether. Second, even if the defense were available, a reasonable jury could conclude Performance has failed to satisfy either of its elements.

A. A Jury Could Reasonably Find that Wallace’s Diminution of Job Responsibilities, Suspension, and Termination are Tangible Employment Actions that Preclude the Faragher/Ellerth Defense.

First, a jury could find that Casey’s steadfast refusal to let Wallace into the rack—a refusal inextricably linked to his harassing, sexualized remarks—effected “a significant change in employment status” and so rose to the level of a tangible employment action. Ellerth, 524 U.S. at 761; see Faragher, 524 U.S. at 790 (listing “work assignment” among “employment actions with tangible results”). Despite observing that “in ‘most cases,’ a tangible employment action ‘inflicts direct economic harm,’” Davenport v. Edward D. Jones & Co., 891 F.3d 162, 170 (5th Cir. 2018) (quoting Ellerth, 524 U.S. at 762), this Court has held that “substantial diminishment of [one’s] job responsibilities” can “constitute a tangible employment action” even absent such harm. Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 654-55 (5th Cir. 2002), overruled on other grounds by White, 548 U.S. 53; accord Thompson v. Naphcare, Inc., 117 F. App’x 317, 322 (5th Cir. 2004).

As explained supra at 17-20, a jury could reasonably conclude Casey relegated Wallace in all but name to a lower-ranked Laborer position that constrained her professional development. Compare Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir. 2009) (holding that reassignment was not a tangible employment action where there was no evidence that plaintiff’s duties changed or that her original position was “objectively superior” to the one her harasser transferred her into). The district court’s only basis for holding otherwise was its flawed discrimination analysis, addressed above. ROA.1493 n.2; supra at 17-20.

Second, the district court never questioned that Wallace’s suspension and termination were tangible employment actions. See Ellerth, 524 U.S. at 761 (listing “firing” as paradigmatic). But it held, incorrectly, that these actions bore no nexus to supervisory harassment. Viewed in the light most favorable to Wallace, the evidence raises a reasonable inference that her suspension and termination were related to her “rejection of [Terro’s] alleged sexual harassment.” Casiano, 213 F.3d at 283. In June and July 2017, Wallace refused Terro’s demands to send him an explicit photo and to let him grab her breasts. The very next month, Terro signed a notice suspending Wallace for absenteeism, despite evidence that she followed Performance’s call-in policy for the absence at issue and that the suspension violated Performance’s graduated disciplinary policy. See supra at 7-9. Soon after, Terro signed Wallace’s termination notice. ROA.177.

The district court’s contrary reasoning is doubly flawed. First, according to the court, because Gautreau claimed that he made the disciplinary decisions that culminated in Wallace’s termination, only Gautreau was responsible. ROA.1493-94. But a reasonable jury could find otherwise: only Terro’s signature appears on the corresponding documentation, and Casey testified that he, too, would have been involved.[5] ROA.175-77, 932. Because a jury would not be “required to believe” Gautreau’s testimony, it must be “disregard[ed]” on summary judgment. Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002); see Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326, 329 (5th Cir. 2000) (cautioning against privileging self-interested direct evidence over contrary circumstantial evidence on summary judgment).

Second, the district court’s statement that Wallace “made no objection” to Terro’s harassment was factually dubious and legally irrelevant. ROA.1494. A reasonable jury could infer an objection from Wallace’s testimony that she “immediately rejected any and all [Terro’s] sexual advances.” ROA.810. And even if Wallace never affirmatively objected to Terro’s conduct, “rejection of [a] supervisor’s alleged sexual harassment,” Casiano, 213 F.3d at 283 (emphasis added), or “refusal to submit to a supervisor’s sexual demands,” Ellerth, 524 U.S. at 753, suffices. Wallace’s refusal to comply with Terro’s demands that she send him a lewd photo or let him touch her breasts easily fits this description.

B. Even if the Faragher/Ellerth Defense Applies, Material Fact Disputes Exist as to Both Elements.

Even absent a tangible employment action, summary judgment on the Faragher/Ellerth defense is inappropriate unless Performance “establish[es] beyond peradventure all of the [defense’s] essential elements.” Smith v. Ochsner Health Sys., 956 F.3d 681, 683 (5th Cir. 2020) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). Reversal is thus required if a reasonable jury could find Performance has failed to carry its burden on either defense element. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 483-84 (5th Cir. 2008). Here, a reasonable jury could find against Performance on both.

On the first element, the district court wrongly treated Performance’s written “anti-harassment/discrimination policies and practices” as dispositive of whether Performance “exercised reasonable care to prevent and promptly correct” harassment. ROA.1494-95. While this Court usually holds the first element satisfied where a plaintiff is “on notice” of a reasonable “policy and complaint procedure,” Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205, 210 (5th Cir. 2016), even a “comprehensive” written policy must be “well-implemented,” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 463 n.19 (5th Cir. 2013) (en banc). The district court thus should have “look[ed] behind the face of [the] policy to determine whether [it] was effective in practice,” Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Cir. 2005), considering factors like whether Performance effectively handled harassment claims and trained its supervisors in its policies, see Boh Bros., 731 F.3d at 464-66.

A jury could reasonably find that Performance has not shown its written policies were effective in practice. There is evidence that Casey regularly made harassing comments to Wallace at large meetings in front of higher-level supervisors and that Tapley, Quebodeaux, Terro, and Gautreau all knew about them. See supra at 5; Aryain, 534 F.3d at 482-83 (denying summary judgment where “the record d[id] not rule out the possibility” that employee’s supervisors “had notice” another supervisor was harassing her); cf. Sharp, 164 F.3d at 930-32 (holding employer can be liable for “open and pervasive” harassment even where harasser’s supervisors lack actual notice). And no evidence suggests anyone responded to this open, known harassment at all, let alone by following the policy urging “[a]ny employee” with “any knowledge” of such conduct to call HR. ROA.170; Clark, 400 F.3d at 350 (discerning a fact dispute on a policy’s adequacy where “supervisors who witnessed [a harasser’s] behavior” did not report it as the policy required). Far from showing that Performance “provide[d] its supervisors with any guidance regarding how to investigate, document, and resolve harassment,” Boh Bros., 731 F.3d at 464, the evidence suggests complacency toward—and participation in—such conduct, running all the way up the corporate hierarchy to Ferachi. See supra at 4.

Even had Performance’s policy been effective in notifying HR of ongoing harassment, a reasonable jury could find that Performance has not shown that HR itself was effective. Gautreau admitted that HR’s investigation of LaPrairie was never resolved, and Wallace and Tapley testified to repeated, failed efforts to contact or secure a response from HR. See supra at 8-10. Indeed, Performance has presented no evidence of HR ever effectively addressing any harassment claims, including Wallace’s. See Boh Bros., 731 F.3d at 464-65 (denying summary judgment where employer had done “little … to implement its nondiscrimination policies”).

On the second Faragher/Ellerth element, the district court overlooked fact disputes material to whether Performance has shown Wallace acted unreasonably by reporting her harassment “through a chain of command” instead of to HR. ROA.800. Performance’s policy, while “urg[ing]” harassment victims to report to HR, did not suggest HR was the exclusive avenue for reporting. ROA.170. Given Performance’s “firm, sta[un]ch” adherence to the chain of command, ROA.917, a jury could conclude Wallace did what she reasonably believed she was supposed to—just as she had done when she reported LaPrairie’s conduct to her supervisors, who then passed her complaints to HR, ROA.811-12, 899-900. To be sure, this Court has held that, “[i]n most cases, … once an employee knows his initial complaint is ineffective, it is unreasonable for him not to file a second complaint, so long as the employer has provided multiple avenues for such a complaint.” Lauderdale, 512 F.3d at 165. But where, as here, multiple supervisors all along the chain of command know of ongoing harassment, Title VII does not require “victims of sexual harassment, in order to preserve their rights, [to] go from manager to manager until they find someone who will address their complaints.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104-05 (2d Cir. 2010).

In any event, as explained supra at 29, a reasonable jury could conclude Performance has not demonstrated that Wallace was unreasonable in thinking it would be futile to report to an HR apparatus the evidence paints as unresponsive and ineffective. See Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 525-26 (5th Cir. 2001) (holding that employee’s reasonable “belie[f] that resort to the [employer’s] administrative process was ineffectual” could justify his failure to report).

III. Title VII Protects Wallace from Retaliation for Complaining About Sex-Based Mistreatment and Refusing to Submit to Her Supervisor’s Sexual Demands.

To make out a prima facie Title VII retaliation case, a plaintiff must show she “engaged in protected activity” that caused her employer to take a materially adverse action against her. Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 702, 705 (5th Cir. 2016). Protected activity includes “oppos[ing] any practice” that Title VII makes “an unlawful employment practice.” 42 U.S.C. § 2000e‑3(a). As the Supreme Court held in Crawford v. Metropolitan Government of Nashville & Davidson County, stating one’s belief that discrimination has occurred “virtually always” constitutes opposition, except in “eccentric cases.” 555 U.S. 271, 276-77 (2009). And this Court has held that, to secure protection, opposition need only challenge a practice the plaintiff “reasonably believed” was unlawful. EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016).

Here, Wallace (1) objected to discrimination and harassment from supervisors and coworkers and (2) refused to respond to Terro’s obscene photo or allow him to grab her breasts. The district court’s holding that Title VII protected neither activity misconstrues the record and the law.

First, the district court misstated the record in characterizing Wallace’s complaints about her exclusion from the rack as failing to allege sex discrimination. ROA.1498. Wallace specifically testified to telling Terro and Gautreau that Casey “didn’t want [her] to work in the rack because [she] was a female.” ROA.799 (emphasis added). This easily sufficed to allege discrimination. See Brown v. United Parcel Serv., Inc., 406 F. App’x 837, 840 (5th Cir. 2010) (noting that “[m]agic words are not required” as long as opposition “alert[s] an employer to the employee’s reasonable belief that unlawful discrimination is at issue”).

The district court also misapplied the law in holding that Wallace’s complaint about LaPrairie was unprotected because she could not reasonably believe his conduct “alone” could “give rise to a sexual harassment claim under Title VII.” ROA.1498. As the court itself elsewhere acknowledged, a sexual harassment claim is “based on the totality of the circumstances,” ROA.1491, and LaPrairie’s conduct contributed to a broader environment of harassment from multiple sources, including supervisors. See EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399-402 (5th Cir. 2007) (considering harassment from multiple employees in assessing claim of hostile work environment); Waltman v. Int’l Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989) (same). Moreover, this Court recognizes that unwanted intimate touching, especially combined with sexual remarks, increases harassment’s severity. See Cherry, 668 F.3d at 189. Within the context of a workplace where harassment was widespread, LaPrairie’s explicitly sexualized intrusion into Wallace’s physical space easily comes within the “zone of conduct that [may] fall[] short of an actual violation but could be reasonably perceived to violate Title VII.” Rite Way, 819 F.3d at 242.

Second, Title VII also protects Wallace’s refusal to reciprocate Terro’s obscene photo or let him grab her breasts. The district court believed Wallace “did not voice any objection to Terro[’s] … conduct before her suspension,” ROA.1496, but as explained supra at 26, the evidence shows Wallace, at minimum, clearly communicated rejection through her refusal to engage. As the First Circuit has held, “nothing in … Title VII’s antiretaliation provision suggests that employees engage in protected conduct only when they verbally communicate their opposition to unlawful employment practices.” Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47 (1st Cir. 2010); see Crawford, 555 U.S. at 277 (holding that opposition “goes beyond ‘active, consistent’ behavior” to include “someone who has taken no action at all to advance a position beyond disclosing it,” as by “standing pat” in the face of a supervisor’s discriminatory demand).

Despite Performance’s argument below, ROA.140, this Court’s decision in LeMaire v. Louisiana Department of Transportation & Development, 480 F.3d 383 (5th Cir. 2007), does not compel a contrary conclusion. LeMaire rejected a retaliation claim in a single sentence because the plaintiff “provide[d] no authority for the proposition that rejecting sexual advances constitutes a protected activity.” 480 F.3d at 389. But a reasonable jury could find Wallace did more than reject “advances”: she opposed what she reasonably believed to be unlawful harassment—which Performance’s own policies prohibited—by refusing direct demands that she reply in kind to an unwanted obscene photo of Terro’s genitals and let him grab her breasts. See Rite Way, 819 F.3d at 243-44 (discerning a fact issue on reasonable belief where plaintiff opposed supervisor performatively admiring a coworker’s buttocks in evident violation of employer’s antiharassment policy). And critically, LeMaire predated Crawford, which embraced an “expansive definition” of opposition that includes passive resistance. EEOC v. New Breed Logistics, 783 F.3d 1057, 1067-68 (6th Cir. 2015) (citing Crawford as grounds for rejecting LeMaire’s unpublished predecessor, which, like LeMaire, “neither assessed the language of the opposition clause of Title VII” nor offered reasoning for its conclusions). As the Sixth and Eighth Circuits recognize, rejecting a harasser’s offensive conduct is “the most basic form of protected activity.” Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000); see New Breed, 783 F.3d at 1067-68.

CONCLUSION

For the foregoing reasons, this Court should vacate the district court’s judgment and remand for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

CERTIFICATE OF SERVICE

I, Nicolas Sansone, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on this 5th day of November, 2021, and I will submit hard copies of the brief upon the Court’s request. I also certify that all counsel of record have consented to electronic service by virtue of Fifth Circuit Rule 25.2.3 and will be served the foregoing brief via the Court’s appellate CM/ECF system.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

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

[2] Despite this testimony, Performance agrees Wallace was a Helper, not a Laborer. ROA.1192-93.

[3] Gautreau testified that he found Terro’s alleged actions unsurprising because Terro was “a throwed off little dude.” ROA.903.

[4] The district court did not address any claim of coworker harassment.

[5] Moreover, even if Gautreau made the termination decision himself, a reasonable juror could find Terro played a role in Wallace’s termination by influencing the causal chain that started with her suspension. Cf. Watkins v. Tregre, 997 F.3d 275, 285 (5th Cir. 2021) (vacating summary judgment on Family Medical Leave Act retaliation claim based in part on evidence that a suspiciously timed “disciplinary-review-board request set in motion” a “process that culminated in [plaintiff’s] ultimate firing”).