Table of Authorities............................................................................. iii
Statement of Interest............................................................................. 1
Statement of the Issues......................................................................... 2
Statement of the Case........................................................................... 3
I. Statement of Facts........................................................................ 3
A. Hostile Work Environment................................................. 4
B. Internal
Complaints.............................................................. 9
C. Disability Leave and
Return to Work............................... 10
1. Disability
Benefits.......................................................... 10
2. Return-to-Work
Medical Examination........................ 12
3. Demotion........................................................................ 14
4. GM’s Desire to
Remove Banks from Lockport........... 16
II. District Court’s
Decisions........................................................ 16
Argument............................................................................................. 19
I.
A jury could find that Banks endured race- and/or sex-based
harassment sufficient to constitute a hostile work environment under Title VII............................................... 19
II.
A jury could find that Banks’s demotion was an adverse action for
purposes of her discrimination and retaliation claims..................................................................................... 26
III.
A jury could find that the two-month suspension of Banks’s disability
benefits was an adverse action for purposes of her retaliation claim........................................ 30
IV.
A jury could find a causal connection between the plant doctor’s delay
in allowing Banks to return from disability leave and her filing of an EEOC
charge, because the doctor repeatedly referred to the charge during the
four-month authorization process.......................................................... 32
Conclusion........................................................................................... 36
Certificate of Compliance
Alfano v. Costello, 294 F.3d 365 (2d Cir.
2002).................................... 20
Brady v. Wal-Mart Stores, Inc., 531 F.3d
127 (2d Cir. 2008)......... 28, 30
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) 27, 28, 30-32
Chambers v. District of Columbia, No.
19-7098,
2021 WL 1784792 (D.C. Cir. May 5, 2021)......................................... 27
Cruz v. Coach Stores, Inc., 202 F.3d 560
(2d Cir. 2000)................. 21, 24
Duplin v. City of New York, 888 F.3d 612
(2d Cir. 2018).............. 34, 35
Feingold v. New York, 366 F.3d 138 (2d Cir.
2004)....................... 21, 27
Fox v. Costco Wholesale Corp., 918 F.3d 65
(2d Cir. 2019).................. 28
Galdamez v. Potter, 415 F.3d 1015 (9th Cir.
2005).............................. 22
Gorzynski v. JetBlue Airways Corp., 596
F.3d 93 (2d Cir. 2010)......... 21
Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993).............................. 20, 26
Littlejohn v. City of New York, 795 F.3d
297 (2d Cir. 2015)................ 34
Lore v. City of Syracuse, 670 F.3d 127 (2d
Cir. 2012).......................... 29
Moll v. Telesector Res. Grp., Inc., 760
F.3d 198 (2d Cir. 2014)............ 20
Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002)................ 20
Patane v. Clark, 508 F.3d 106 (2d Cir.
2007)...................... 20, 24, 34-35
Petrosino v. Bell Atl., 385 F.3d 210 (2d
Cir. 2004)............................... 24
Pucino v. Verizon Wireless Comm’ns, Inc.,
618 F.3d 112 (2d Cir. 2010)......................................................................................................... 23,
25
Raniola v. Bratton, 243 F.3d 610 (2d Cir.
2001)................................... 22
Rasmy v. Marriott Int’l, Inc., 952 F.3d 379
(2d Cir. 2020)............ 22, 26
Richardson v. N.Y. State Dep’t of Corr. Serv.,
180 F.3d 426 (2d Cir. 1999)............................................................................................................... 35
Roy v. Correct Care Sols., LLC, 914 F.3d 52
(1st Cir. 2019)................ 23
Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597 (2d Cir. 2006)...... 25
Terry v. Ashcroft, 336 F.3d 128 (2d Cir.
2003).................................... 23
White v. Pauly, 137 S. Ct. 548 (2017)..................................................... 3
Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq... 1, 27
Fed. R. App. P. 29(a)............................................................................. 2
Brief for the United States as Amicus Curiae, Peterson
v. Linear
Controls, Inc., 140 S. Ct. 2841 (2020) (No.
18-1401),
2020 WL 1433451................................................................................. 27
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. Plaintiff Billie
Banks, a black woman, alleges that defendant General Motors (“GM”) violated
Title VII by demoting her and subjecting her to a hostile work environment
because of her race and sex, and then retaliating against her for complaining.
The district court made several legal errors in
granting summary judgment to GM. It required Banks to show that discriminatory
harassment was both pervasive and severe, although pervasive harassment,
standing alone, can violate Title VII, and it downplayed the relevance of
conduct that was not expressly discriminatory or that was not directed at Banks.
It erroneously held that no reasonable jury could view Banks’s demotion or
two-month suspension of disability benefits as adverse actions under the
governing legal standards. Finally, the court held that no reasonable jury
could find a causal link between the plant doctor’s delay in authorizing Banks to
return to work and her filing of an EEOC charge, even though the doctor
expressly and repeatedly referenced the charge during the authorization
process.
Because the EEOC has a substantial interest in
the proper interpretation of the laws it enforces, it files this brief pursuant
to Federal Rule of Appellate Procedure 29(a).
1. Could a
reasonable jury find, based on the totality of the circumstances, that Banks
endured a hostile work environment because of her race and/or sex?
2. Could a
reasonable jury find that GM took an adverse action for purposes of Banks’s
discrimination and retaliation claims when it brought her back from disability
leave with a small raise but stripped her of her supervisory title and
responsibilities, transferred her to an undesirable shift where she had little
opportunity to engage with members of senior management, and only gave her work
beneath her skill and experience level?
3. Given the
Supreme Court’s holding that a thirty-seven-day suspension without pay can
constitute a retaliatory adverse action, could a reasonable jury assessing
Banks’s retaliation claim find that the sixty-one-day suspension of her
disability benefits was an adverse action?
4. Could a
reasonable jury find a causal connection between the plant doctor’s refusal to
authorize Banks’s return to work and Banks’s filing of an EEOC charge, based on
the doctor’s repeated, pointed references to the charge during the four-month
authorization process?
GM hired Banks as a manufacturing supervisor at
its Lockport, New York, plant in 1996. JA.564. In 1999, Delphi Automotive
Systems acquired the plant from GM, and GM reacquired it in October 2009.
JA.22. Banks remained employed at the Lockport plant throughout this time. JA.564-65.
By the time GM regained ownership, Banks had been promoted to site safety
supervisor. JA.565. She was the first African American and first woman to
hold that position, and she was the highest-ranking African American at the
plant. JA.251,1668. Of the 180 salaried employees at Lockport, only six were
black. JA.1101.
Banks alleges that she endured a hostile work
environment because of her race and gender. Focusing on the time frame
beginning in October 2009, she routinely experienced hostility and
insubordination unlike anything directed at her white colleagues. The evidence
includes, but is not limited to, the following:
Banks was forced to interact with manager Warren
Stoll, who had called her a “dumb n****r” in 2004. JA.312,1605. She also had
to interact with safety representative Jared Richardson, who called himself “a
self-proclaimed redneck.” JA.93-94.
Richardson reported to Banks from 2010 to 2012.
JA.91,112-13. He regularly criticized her vocabulary, stated that her diction
was not understandable, and asked, “How did you get this job?” and “Did you go
to school?” JA.93,116,570. He refused to do work that she assigned him, frequently
telling her in front of others, “That’s dumb, I’m not doing it.” JA.93,96. Banks
ended up doing his work. JA.94. Other managers and trainers told Banks that
Richardson “has been talking a lot of S-H-I-T about you.” JA.104. Banks never
saw Richardson acting disrespectfully to white managers. JA.94. She
complained to human resources director Jim Fennell, but Fennell refused to
intervene. JA.96,112.
Other employees also defied Banks’s
instructions. From 2011 to 2013, Ernie Manera, the union representative in
charge of ergonomics and safety, flatly refused to perform the ergonomics
portion of his job. JA.212-14. Banks testified that she never saw Manera
behave this way with white managers. JA.215,221. She ended up doing the work
in his place. JA.218. Likewise, month after month, union safety trainer
George Miller refused to give Banks timely data that she needed to prepare a
monthly presentation for the plant manager. JA.175-76. Banks resorted to
using a white intermediary to obtain the information. JA.177-79.
In addition, Banks experienced offensive
sex-based comments on an ongoing basis. From 2009 to 2012, manager Charlie
Mosher told her that she was beautiful and made “mm, mm, mm” sounds. He often looked
her up and down, and asked, “Are you cold or just excited to see me?” while
staring at her breasts. JA.300-01,605-06. From 2009 to 2013, group leader
John Adams would ride slowly behind Banks on his scooter, staring at her rear end.
Then he would pull around in front of her, saying, “Looking good back there.” JA.302.
From 2009 until Banks went out on disability leave in January 2016, engineer
Dave Farron stared at her in a provocative way and commented on her shape. JA.299-300.
On top of this, Banks experienced singular
incidents of hostility unlike anything that white employees encountered. In
2010, union representatives Todd McNall and Chuck Roberts “just lit into
[Banks]” in a meeting and accused her of being a “liar.” JA.124,128-30. In
2013, facility manager Tom Rush rolled up a document and shook it at Banks,
pointed his finger in her face, and yelled at her loudly enough for people
forty feet away to hear him. The tirade lasted for thirty to forty minutes. JA.223-25.
On two occasions in 2013, Miller called her an “idiot” while training other
employees, telling the trainees that Banks did not know what she was doing and
would cost GM millions of dollars in Occupational Safety and Health
Administration (“OSHA”) fees. JA.1668-69. Two of the attendees reported his
comments to Banks. JA.198,206,1669-70.
In 2015, Miller conducted a CPR training at
which Banks was present, in which he stated, “Suppose we got Billie in the
house doing drugs and she overdoses and then we have to call EMS for Narcan.”
When Banks objected, he offered an alternative hypothetical in which an Asian
employee in the room got electrocuted by his wok and rice flew everywhere. JA.181,183.
Also in 2015, when Banks told union plant chairman Michael Branch that she
found one of his jokes racially offensive, Branch responded “that he is just a
redneck with his [hat] turned around backwards.” JA.528,603.
That same year, Banks was in a meeting with a
black union employee and a white engineering supervisor when a white area
manager, Scott Vollmer, looked into the room and said, “I think I need to come
in there and even it out, what do you think?” When Banks asked Vollmer what he
meant, Vollmer replied, “I didn’t mean that, I was just meaning I need to come
in there and even out the room for management.” JA.298. Because Banks was a
manager, there were already more managers than non-managers in the room.
Banks was also aware of racism and sexism in
her work environment that did not target her personally. When she walked
through the production facility, she encountered pin-up calendars of scantily
clad women, “girly magazines,” and pictures of nude women. JA.281-83,1211. She
“continually” saw Confederate flags on lockers, T-shirts, and baseball caps. JA.281,599.
Moreover, in 2014, David Luchey, a black
employee, told her that he had seen a noose hanging over a crane in the weld
shop. JA.596,1224. Luchey told her that he had been called “n****r” on the
production floor, that a white coworker told him she hates “n****rs,” that one
of his supervisors called him a monkey and another referred to him as his “mocha
millwright,” and that white employees referred to poor workmanship as “n****rized.”
JA.598. Luchey also told her about a black test dummy that was dirty and
shirtless, with tattered pants and “nappy” hair, being driven around the plant
in a motorized vehicle. JA.598.
Tyrone Wilson, another black employee, told Banks
that a coworker called him the n-word every day. JA.604. In 2015, Banks
learned that manufacturing manager Mark Inchiosa had called Lonnie Everett, a
black man, a “silverback,” which both Everett and Banks understood to mean “gorilla.”
JA.599,1650. And in 2017, while she was on disability leave, Banks learned
that two black employees had found a noose on a tugger vehicle assigned to them.
JA.609.
Banks complained to the human resources
department about the “[i]nherent difficulty of being a[n] African-American
Female working in a homogenous environment where ridicule and disrespect go
unaddressed.” JA.1754. She also complained to the “Awareline”—a third-party
reporting service that GM provides for its employees. JA.466. She told the
Awareline investigator, “I am an African American female and … have been the
target of pervasive unfair treatment, unprovoked hostile aggression, racial
profiling and exposure to a culturally and diversity insensitive organization.”
JA.1753.
GM introduced evidence that it investigated
Banks’s complaints and responded to at least some of them. JA.27,29. Banks
testified that no one ever got back to her and that the hostile work
environment continued unabated. JA.230. She filed a discrimination charge
with the EEOC on October 24, 2013. JA.582.
Banks took disability leave several times for mental
health issues stemming from the harassment, including an extended leave for
depression and anxiety beginning on September 9, 2013. JA.609,1955.
Under GM’s policy, salaried employees are
entitled to 100% of their salary for the first thirteen weeks of leave and then
75% for the next thirty-nine weeks. JA.582. However, on November 22,
2013—only ten weeks after Banks began her leave and one month after she filed
her EEOC charge—GM terminated her benefits entirely. JA.582. Banks called GM
to ask about cashing in unused vacation time so that she would have some
income, but GM would not permit this. JA.582. On December 9, 2013, Banks
amended her EEOC charge to include the termination of her disability benefits.
JA.582. Shortly before Christmas, Banks related, personnel director Susan Gouthro
called her and said in a gloating manner, “So I hear your sick leave benefits
are cut off, that must be tough.” JA.582.
As Christmas approached, Banks was unable to
pay her bills or support her family. Automatic debits were returned for
insufficient funds; creditors notified reporting agencies that payments were
late; Banks incurred late-payment charges; and the bank cancelled her overdraft
protection. With no idea if or when GM would reinstate her disability
benefits, and no idea when she would be able to return to work, Banks’s mental
state deteriorated. She withdrew from her family and endured regular panic
attacks, headaches, insomnia, and digestive problems. JA.1957-58.
GM asserted in litigation that it stopped Banks’s
benefits because its plant psychiatrist had examined her in late November 2013
and determined that she was capable of returning to work. JA.1981. Banks,
however, testified that she did not speak with GM’s psychiatrist until May 2014.
JA.1957. She successfully appealed the denial of benefits, which were
reinstated retroactively on January 23, 2014. JA.1981.
Banks sought to return from disability leave in
May 2014. JA.583. When she had previously returned from a mental health
leave, her treating psychiatrist had released her to work, the plant doctor had
signed off on it, and she was allowed to come back. JA.585. This time, even
though her treating psychiatrist and the plant doctor agreed that she was ready
to return to work, GM required her to get additional approval from its own
psychiatrist, Dr. Jones. JA.340-41,583-84.
Dr. Jones never met with Banks in person. JA.340-41.
When he spoke to her on the phone, he told her that he understood she had filed
an EEOC charge, an Awareline complaint, and a worker’s compensation claim (the
last of which she had not done). JA.584. Banks said that this was an
inappropriate subject, and Dr. Jones told her that he could move the
conversation however he wanted. JA.338. Overriding her treating physician and
the plant doctor, Dr. Jones told Banks that she needed to work on her
conflict-resolution skills and refused to let her return to work. JA.339.
Banks amended her EEOC charge in July 2014. JA.473.
In August 2014, the EEOC issued Banks a right-to-sue letter. R.1-1 (Charge Dismissal).
The next month, she once again spoke with Dr. Jones over the phone—this time,
with Gouthro also on the line. JA.358-59. Dr. Jones remarked that Banks had
lost her EEOC claim, her [nonexistent] worker’s compensation claim, and her
Awareline claim. “We didn’t find anything so that’s over, so are you ready to
come back to work?” he said. JA.343. This time, he gave his approval.
JA.343.
Just four months into Banks’s leave, Gouthro
posted her job. JA.348,1105. Assistant plant manager Dan Hesch testified that
it was inappropriate to post a job so quickly when an employee is out on
disability leave. JA.1038. Moreover, Hesch testified, the job should not have
been posted without the approval of the human resources management team, which
did not occur. JA.1038. GM offered the position to Robert Duke in late March.
JA.898. In early April, Banks notified GM that her treating psychiatrist had
cleared her to return to work. JA.583. GM proceeded with the hiring process
anyway, and Duke started as the new safety supervisor in May. JA.451,899.
When Banks returned to work in October 2014,
Hesch and Gouthro sent a plant-wide email announcing that she was now “the off
shift Safety Representative supporting manufacturing operations on 2nd/3rd
shift” and “the off shift Contact Person for Labor Relations.” JA.1621. Thus,
everyone knew that Banks was no longer the safety supervisor.
Although GM gave Banks a small raise and she
returned at the same rank, JA.1888-89, she had no supervisory responsibilities
and was no longer involved in strategic planning, JA.448,913-15. Rather, she
performed the same “menial tasks” that she had previously assigned to a
subordinate. JA.589. Her new hours were from 3:00 p.m. until midnight, as
compared to her previous shift of 7:30 a.m. to 4:30 p.m. JA.1710. Because
members of senior management left work by 5:00, JA.943, Banks had little opportunity
to interact with them.
Banks complained repeatedly to Duke and Gouthro
that she was excluded, isolated, and in a “non-value-added” position. JA.320-22,351-52.
After four and a half months, Gouthro moved Banks to a different shift (still
not her regular or desired one) and assigned her some primary responsibilities,
but Duke did not relinquish control over those issue areas and continued to
exclude Banks from key meetings. JA.1710.
Banks filed this lawsuit in November 2014. R.1
(Complaint).
In July 2015, GM asked Banks whether she would
accept a transfer to the safety supervisor position in Cincinnati. Banks
declined because she needed to stay near her ailing father. JA.596. Iturial
Coronado from the corporate safety department emailed Gouthro, “Bad news, now
it’s not possible for her …. Sorry, we lost this battle but not the war.” JA.1624.
Banks took disability leave again in January 2016.
JA.344. As of the time of her deposition, she had not returned to work.
JA.344.
Banks filed suit under Title VII. She alleged
that GM had demoted her and subjected her to a hostile work environment because
of her race and sex, and had retaliated against her for complaining. R.1 at 5
(Complaint). The district court granted summary judgment to GM on all claims.
SA.72.
With respect to the hostile environment claim,
the court stated that, “[w]hile other employees endured a steady barrage of
racial insult and epithet, Plaintiff herself did not[.]” SA.34. The relevant
conduct directed at Banks, the court said, consisted of “incidents … of using
derogatory, but non-ethnic offending terms (calling her an idiot or refusing to
provide her with needed data, depriving her of support staff, or giving her
subordinate’s work to perform in addition to her own duties).” SA.34. Additionally,
the court said, Banks “pointed to instances when she was ignored or faced
disrespect from coworkers or subordinates[, and] [s]he complains of about four
sexually disparaging comments addressed to her[.]” SA.34. She was not
threatened, the court said, and even though her work was “impeded and
interfered with,” she suffered no adverse consequences “save for her stress
claim.” SA.34.
“While there are numerous instances cited by
Plaintiff over a five-year span (from 2010 until filing EEOC charges in 2014),”
the court concluded, “they remain episodic, without events being connected by a
common actor or repeated incidents. While frequent, the incidents alleged are
not severe, especially the incidents that occurred to Plaintiff directly.” SA.34.
Thus the court held, no reasonable jury could find a hostile work environment.
SA.35.
The court held that GM had not committed an
adverse action for purposes of her discrimination or relation claims by
bringing Banks back to work as an off-shift safety representative. SA.31,42. “[W]hen
Plaintiff was rehired,” the court said, “she was brought to her previous level
and at higher pay, even though her job title and responsibilities changed.
Whether this change in job title and responsibilities constitutes a demotion
raises an issue of fact. That issue, however, is not material because
Plaintiff did not claim a loss of salary or benefits after returning from her
medical leave.” SA.31 (internal citation omitted). The court also said that
the shift change was not an adverse action because it was “temporary, for a few
weeks.” SA.42.
Initially, the court found a genuine issue of
material fact as to whether the termination of Banks’s disability benefits
constituted an adverse action for purposes of her retaliation claim, SA.37, but
it reversed itself on reconsideration, SA.69-70. Ruling that the benefits had
not been terminated, but merely delayed, the court held that “[t]he denial and
eventual payment upon of appeal of disability benefits is a trivial harm and
not so significant to state a prima facie claim for retaliation under Title VII[.]”
SA.69.
Finally, the court held that Banks could not
establish retaliation based on the denial of her return-to-work authorization
in May 2014. Even thought there was an “apparent causal connection” when Dr.
Jones referenced the EEOC charge while denying return-to-work authorization,
the court said, the four-month interval between the charge filing and Dr.
Jones’s decision put it “at the outer limit of what would be deemed a
reasonable causal connection between those two events.” SA.39-40. Without
evidence that Dr. Jones harbored personal animus, the court said, no jury could
find retaliatory intent. SA.40-41.
Title VII protects
employees from “‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citation omitted). An actionable hostile work
environment must be both subjectively and objectively offensive. Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007).
“To decide whether the threshold has been reached,
courts examine the case-specific circumstances in their totality and evaluate
the severity, frequency, and degree of the abuse.” Moll v. Telesector Res.
Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (citation omitted). This
analysis must consider the entire course of conduct, because “[a] hostile work
environment claim is composed of a series of separate acts that collectively
constitute one ‘unlawful employment practice.’” Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 117 (2002) (citation omitted). Incidents that are
not facially discriminatory “may sometimes be used to establish a course of sex
[and/or race]-based discrimination—for example, where the same individual is
accused of multiple acts of harassment, some overtly [discriminatory] and some
not.” Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002); see also
Moll, 760 F.3d at 203 (similar).
Banks alleges that she endured a hostile work
environment because of race and/or sex. “[W]here two bases of discrimination
exist, the two grounds cannot be neatly reduced to distinct components.” Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). “‘[T]he
intersection of race and gender often distorts or ignores the particular nature
of [an individual’s] experiences’ including a specific set of stereotypes and
assumptions not shared by all persons of that race or gender.” Id.
(quoting Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994)). Thus,
a court may consider allegations of racial animosity when evaluating a claim of
sex discrimination, and vice versa. Feingold v. New York, 366 F.3d 138,
151 (2d Cir. 2004). Each type of harassment may “exacerbate[]” the effect of
the other. Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir.
2000), overruled in part on other grounds by Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002).
Here, Banks has alleged widespread, long-term,
and pervasive race- and sex-based hostility. Although not all the conduct was
expressly discriminatory, much of it was committed by individuals who indicated
possible discriminatory animus in other ways.
Richardson described himself as a “redneck,” JA.94,
which “can suggest racial hostility.” Galdamez v. Potter, 415 F.3d
1015, 1024 n.6 (9th Cir. 2005) (citing cases). Miller expressly disparaged
Banks and an Asian coworker based on racial stereotypes. See supra p.
7. If a jury concludes that their words reveal racial prejudice, it may infer that
their facially nondiscriminatory harassment was, in fact, due to racism. See
Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case
law is clear that when the same individuals engage in some harassment that is
explicitly discriminatory and some that is not, the entire course of conduct is
relevant to a hostile work environment claim.”); Raniola v. Bratton, 243
F.3d 610, 622 (2d Cir. 2001) (“A play cannot be understood on the basis of some
of its scenes but only on its entire performance, and similarly, a
discrimination analysis must concentrate not on individual incidents, but on
the overall scenario.” (quoting Andrews v. City of Phila., 895 F.2d
1469, 1484 (3d Cir. 1990)).
The same is true of the co-workers who did not
use expressly racist terms but who never treated white employees the way they
treated Banks. A jury could find from this difference in treatment that these
individuals, too, were motivated by racial animus. See Terry v. Ashcroft,
336 F.3d 128, 150 (2d Cir. 2003) (jury could find that race was a motivating
factor in part because perpetrator “treated white employees with contempt, but
was warm with non-white employees”).
The district court noted “four sexually
disparaging comments,” SA.34, but Banks testified that, from 2009 through 2015,
she repeatedly and consistently endured offensive comments about her body,
including remarks about her breasts and rear end. See supra p. 6; see
also Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 (1st Cir. 2019)
(observing that “a reasonable jury could infer that the comment about Roy’s
‘ass’ was made in part because of her sex,” given the context of the alleged
harassers “sexualizing Roy and … emphasizing aspects of her appearance”). “[A]
plaintiff, to prevail, need not recount each and every instance of abuse to
show pervasiveness.” Pucino v. Verizon Wireless Comm’ns, Inc., 618 F.3d
112, 119-20 (2d Cir. 2010). “If a jury were to credit [the plaintiff’s]
general allegations of constant abuse … it could reasonably find pervasive
harassment, even in the absence of specific details about each incident.” Id.
at 120 (citation omitted).
The district court also seemed to downplay the
relevance of sexism and racism that was not directed at Banks, but of which she
was aware, including nooses, use of the n-word, pin-up calendars of scantily
dressed women, “girly magazines” and pictures of nude women, as well as
displays of the Confederate flag. Compare SA.34 with supra pp.
8-9. “The fact that much of this offensive material was not directed
specifically at [Banks] … does not, as a matter of law, preclude a jury from
finding that the conduct subjected [her] to a hostile work environment based on
her [race and] sex.” Petrosino v. Bell Atl., 385 F.3d 210, 222 (2d Cir.
2004); see also Patane, 508 F.3d at 114 (discriminatory behavior not
specifically directed at plaintiff can nonetheless contribute to a hostile work
environment). “Because the crucial inquiry focuses on the nature of the workplace
environment as a whole, a plaintiff who herself experiences discriminatory
harassment need not be the target of other instances of hostility in order for
those incidents to support her claim.” Cruz, 202 F.3d at 570.
The district court erroneously held that Banks
could not establish a hostile work environment because the incidents of which she
complains were “frequent … [but] not severe.” SA.34. When a plaintiff alleges
an “ongoing pattern of sexually [and/or racially] offensive and humiliating
conduct,” the severity of any single act “is not dispositive.” Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006). What matters
is the totality of the circumstances. Id. Abuse need not be both
severe and pervasive to establish a hostile working environment; it need only
be “sufficiently severe or sufficiently pervasive, or a sufficient combination
of these elements, to have altered [the employee’s] working conditions.” Pucino,
618 F.3d at 119. “These determinations are to be made on a case by case basis
considering all the individual facts at hand.” Schiano, 445 F.3d at
607.
Finally, the court erred by focusing on the
absence of tangible harm. See SA.34 (“[S]he suffered no adverse
consequences … save her stress claim.”). “[T]he very fact that the discriminatory
conduct was so severe or pervasive that it created a work environment abusive
to employees because of their race, gender, religion, or national origin
offends Title VII’s broad rule of workplace equality.” Harris, 510 U.S.
at 22. Accordingly, as this Court explained in Rasmy, a plaintiff need
not show that she has been physically threatened or that the harassment
interfered with her job performance. “This analysis, in our view, misreads
Title VII.… [I]t ‘ignores the very reason that Title VII prohibits
discriminatorily hostile work environments.’” Rasmy, 952 F.3d at 390 (quoting
EEOC Br. as Amicus Curiae). Evidence that harassment drove a plaintiff to
anti-anxiety medication “arguably gives rise to a strong inference that [her]
workplace conditions had been materially altered.” Id.
The district court failed to apply the correct
legal standards in holding that no reasonable jury could find Banks’s demotion
to be an adverse action. This Court has stated that Title VII’s
anti-discrimination provision prohibits actions that are “more disruptive than
a mere inconvenience or an alteration of job responsibilities.”
Feingold, 366 F.3d at 152 (citation omitted). The anti-retaliation
provision prohibits any action that “well might have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation
omitted). Banks’s demotion satisfies both standards.
The district court wrongly held that Banks’s demotion
was not an adverse action for two reasons. First, it stated that the shift
change was “temporary, for a few weeks.” SA.42. Factually, this is
incorrect—Banks worked the off-shift for four and a half months and, even then,
was not returned to her original hours. JA.1710. In any event, the “short
duration” of a reassignment “is [not] a proper basis for finding, as a matter
of law, that … no adverse employment action occurred.” Brady v. Wal-Mart
Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).
Second, the court held that the demotion was
not an adverse action because Banks did not allege a decrease in salary or
benefits. SA.31. However, a reassignment can be adverse even without
financial consequences when, for example, it involves “a less distinguished
title, … significantly diminished material responsibilities, or other indices …
unique to a particular situation.” Fox v. Costco Wholesale Corp., 918
F.3d 65, 71-72 (2d Cir. 2019) (citation omitted) (addressing discrimination
claim). For purposes of a retaliation claim, “[c]ommon sense suggests that one
good way to discourage an employee … from bringing discrimination charges would
be to insist that she spend more time performing … more arduous duties and less
time performing those that are easier or more agreeable.” Burlington N.,
548 U.S. at 70-71.
Here, Banks returned from her disability leave
with a less distinguished title (“safety representative” rather than “safety
supervisor”), JA.1621, and significantly diminished responsibilities. She no
longer supervised anyone and was no longer involved in strategic planning. JA.448,913-15.
Instead, she engaged in “menial tasks” that she had previously assigned to a
subordinate. JA.589. Her new hours limited her interaction with members of
senior management. JA.943,1710.
Even when Gouthro finally moved Banks to a new
shift after four and a half months and assigned her primary responsibility over
certain issue areas, Duke refused to relinquish control and continued to
exclude her from key meetings. JA.1710. Banks complained repeatedly that she
was excluded, isolated, and in a “non-value-added position.” JA.320-22,351-52.
These changes significantly affected the nature
of Banks’s job, allowing a jury to find they were adverse actions for purposes
of her discrimination claim. See, e.g., Lore v. City of Syracuse,
670 F.3d 127, 171 (2d Cir. 2012) (jury could find adverse action where public
information officer in police chief’s office was transferred to positions including
supervising uniformed patrol officers and then serving in a community relations
unit, even though transfers did not affect rank or salary); Brady, 531
F.3d at 134 (jury could find that pharmacy assistant’s transfer to job
collecting shopping carts and garbage in the parking lot was adverse action,
even though transfer did not affect wages or benefits). A fortiori, a
jury could also find that these changes might have deterred a reasonable
employee in Banks’s position from making or supporting a charge of
discrimination, thus satisfying the Burlington Northern standard for
retaliation.
The district court ignored Supreme Court
precedent in holding that the sixty-one-day suspension of Banks’s disability
benefits could not constitute an adverse action for purposes of her retaliation
claim. In Burlington Northern, the employer suspended the plaintiff for
thirty-seven days without pay, allegedly in retaliation for her EEOC charge.
It subsequently paid her retroactively for the thirty-seven days. The Supreme
Court upheld the jury’s finding that the suspension was a materially adverse
action even though the employer ultimately provided backpay. 548 U.S. at
72-73.
Title VII’s anti-retaliation provision, the
Court held, prohibits any action that “well might have ‘dissuaded a reasonable
worker [in the plaintiff’s position] from making or supporting a charge of
discrimination.’” Id. at 68-69 (citation omitted); see also id.
at 70 (similar). The thirty-seven-day suspension of pay satisfied this
standard, the Court held, because “[m]any reasonable employees would find a
month without a paycheck to be a serious hardship” and would opt to preserve
their income rather than file a charge of discrimination. Id. at 72.
“[A]n indefinite suspension without pay could well act as a deterrent,” the
Court said, “even if the suspended employee eventually received backpay.” Id.
at 73.
Here, GM suspended Banks’s disability payments
for sixty-one days—significantly longer than the thirty-seven days that the
Supreme Court held actionable in Burlington Northern. Banks testified
to the financial and emotional hardship of this period. See supra pp.
11-12. Even if she had known that she would ultimately be paid retroactively,
which she did not, this would not have changed her inability to pay bills and
support her family during that time. As in Burlington Northern, the
two-month suspension might well have deterred a reasonable employee in her
position from complaining of discrimination.
The district court did not acknowledge this
aspect of Burlington Northern’s holding. It relied, instead, on a
non-binding district court opinion that also failed to recognize that, under Burlington
Northern, a thirty-seven day suspension without pay can be a materially
adverse action. SA.68-69 (citing Messer v. Bd. of Educ., No. 01-CV-6129
(JFB) (CLP), 2007 WL 136027 (E.D.N.Y. Jan. 16, 2007)). The district court’s
failure to apply controlling Supreme Court law is reversible error.
A jury could find a causal connection between
Banks’s EEOC charge and Dr. Jones’s refusal to authorize her to return to work
in May 2014. As the district court initially recognized, “[t]he sequence of events
… is suspect.” SA.38. Whereas GM had previously allowed Banks to return to
work with the approval of her treating psychiatrist and the plant doctor, this
time it required her to get additional approval from Dr. Jones.
JA.340-41,583-85. When Dr. Jones denied the return-to-work authorization in
May 2014, he told Banks that he understood she had filed an EEOC charge. JA.584.
When he subsequently granted it, he stated, “We didn’t find anything so that’s
over, so are you ready to come back to work?” JA.343. As the district court
noted, “The psychiatric relevance of her EEOC proceeding is questionable.” SA.38.
Although the district court recognized that
“there is an apparent causal connection,” SA.39, it granted summary judgment
because four months had elapsed between the time Banks filed her EEOC charge
and the time Dr. Jones denied return-to-work authorization. SA.40-41. Four
months, the court said, “is at the outer limit of what would be deemed a
reasonable causal connection between those two events.” SA.40. In support of
this proposition, the court cited exclusively to cases where a close temporal
connection was the only evidence of causation. See SA.40
(citing, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001)).
This Court has explained that close temporal
proximity between protected conduct and an adverse action is one way to
demonstrate causation, but it is not the only way. Any circumstantial evidence
of retaliatory motive will suffice. See Littlejohn v. City of New York,
795 F.3d 297, 319 (2d Cir. 2015).
Thus, in Duplin v. City of New York, 888
F.3d 612 (2d Cir. 2018), this Court allowed a retaliation claim to proceed even
though the protected activity had occurred more than two years before the
adverse action. During those two years, the plaintiff’s supervisors had “ostraciz[ed]
him, giv[en] him insufficient work, and m[ade] clear to him that his career
would not advance further by denying him every promotion and raise.” Id.
at 626. Given the “drumbeat of retaliatory animus,” the Court said, the
plaintiff’s allegations were sufficient to survive a motion to dismiss. Id.
Likewise, in Patane, this Court held
that the plaintiff had adequately alleged causation even assuming that the
protected activity had occurred one year before the adverse action.
“Plaintiff’s claim of causal connection is not based only—or even primarily—on
temporal proximity,” the Court said. 508 F.3d at 116. The Court allowed the
claim to proceed because the plaintiff alleged, among other things, that she
overheard her supervisor conspiring with a colleague to drive her out of her
job. Id.; see also Richardson v. N.Y. State Dep’t of Corr. Serv.,
180 F.3d 426, 447 (2d Cir. 1999) (no causation where protected activity
occurred two years before adverse action, and plaintiff “failed to adduce any
other evidence” suggesting retaliation), abrogated in part on other grounds
by Burlington N., 548 U.S. 53.
Here, as in Duplin and Patane, the
plaintiff’s claim of causal connection “is not based only—or even primarily—on
temporal proximity.” Patane, 508 F.3d at 116. Dr. Jones
expressly invoked Banks’s EEOC charge twice: once in denying her authorization
to return to work, and again in asking her whether she was ready to return to
work after noting that she had “lost” and it was “over.” JA.339,343. This is
more than sufficient evidence to allow a jury to find causation.
For the foregoing reasons, the EEOC urges this Court to
vacate the award of summary judgment and remand for further proceedings.
Respectfully submitted,
CHRISTOPHER LAGE
Deputy General
Counsel
JENNIFER S.
GOLDSTEIN
Associate General
Counsel
ELIZABETH E.
THERAN
Assistant
General Counsel
s/ Gail S.
Coleman
GAIL S. COLEMAN
Attorney
Equal Employment
Opportunity Commission
Office of
General Counsel
131 M St. N.E.,
5th Floor
Washington, D.C.
20507
(202) 921-2920
gail.coleman@eeoc.gov
February
8, 2022
No. 21-2640