B...... District Court’s Decision and Subsequent Proceedings. 5

Under Burlington Northern, allegedly retaliatory conduct can be actionable if it could have dissuaded a reasonable worker from engaging in protected activity. 7

CONCLUSION.. 19

CERTIFICATE OF COMPLIANCE.. 20

CERTIFICATE OF SERVICE.. 21

TABLE OF AUTHORITIES

Cases

Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45 (1st Cir. 2010)...... 13

Alvarado v. Donahoe, 687 F.3d 453 (1st Cir. 2012)..................... 13

Bence v. Detroit Health Corp., 712 F.2d 1024 (6th Cir. 1983)... 17

Bhatti v. Trs. of Bos. Univ., 659 F.3d 64 (1st Cir. 2011) 5, 14, 15, 16

Billings v. Town of Grafton, 515 F.3d 39 (1st Cir. 2008).... 10, 15, 18

Booker v. Mass. Dep’t of Pub. Health, 612 F.3d 34 (1st Cir. 2010)................................................................................................. 10

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

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)........................... 11

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008)........................................................................................................... 12

Jones v. Aetna Life Ins. Co., 856 F.3d 541 (8th Cir. 2017)......... 13

Ledbetter v. Alltel Corp. Servs., Inc., 437 F.3d 717 (8th Cir. 2006)................................................................................................. 17

Lockridge v. Univ. of Me. Sys., 597 F.3d 464 (1st Cir. 2010)..... 16

Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002)........... 17

Martinelli v. Penn Millers Ins. Co., 269 F. App’x 226 (3d Cir. 2008)................................................................................................. 11

McMellon v. United States, 387 F.3d 329 (4th Cir. 2004).......... 13

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).............. 11

Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020) (per curiam)..................................................................................... 11

Noviello v. City of Bos., 398 F.3d 76 (1st Cir. 2005)..... 1, 6, 10, 12

Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19 (1st Cir. 2011)................................................................................................. 13

Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169 (1st Cir. 2015)................................................................................. 18

Poullard v. McDonald, 829 F.3d 844 (7th Cir. 2016).................. 11

Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77 (1st Cir. 2018)................................................................................................. 13

Rodríguez-Vives v. P.R. Firefighters Corps of P.R., 743 F.3d 278 (1st Cir. 2014)................................................................................. 18

Roman v. Potter, 604 F.3d 34 (1st Cir. 2010)............................... 12

Roy v. Correct Care Sols., LLC, 914 F.3d 52 (1st Cir. 2019)...... 11

Tuli v. Brigham & Women’s Hosp., 656 F.3d 33 (1st Cir. 2011)........................................................................................................... 16

United States v. Cardales-Luna, 632 F.3d 731 (1st Cir. 2011). 14

United States v. DiPina, 178 F.3d 68 (1st Cir. 1999).................. 14

United States v. Holloway, 630 F.3d 252 (1st Cir. 2011)........... 12

Statutes

42 U.S.C. § 2000e-2............................................................................. 8

42 U.S.C. § 2000e-3......................................................................... 1, 8

Rules

Fed. R. App. P. 29................................................................................ 1

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 makes it unlawful “for an employer to discriminate against any of [its] employees … because he has opposed any practice” prohibited under the statute. 42 U.S.C. § 2000e-3(a). This appeal concerns the proper standard for determining whether an employer’s allegedly retaliatory actions are adverse enough to be actionable under this provision. The district court held in relevant part that an employer’s challenged conduct could not be actionable as retaliation where it did not “materially alter[] the conditions of … employment.” Add. 10 (quoting Noviello v. City of Bos., 398 F.3d 76, 92 (1st Cir. 2005)). But the Supreme Court held otherwise in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), where it explained that Title VII’s antiretaliation provision “is not limited to … actions that affect the terms and conditions of employment,” id. at 64.

Because the EEOC has a strong interest in ensuring that courts apply the correct legal standard, the EEOC offers its views to this Court pursuant to Federal Rule of Appellate Procedure 29(a)(2).

STATEMENT OF THE ISSUE [1]

Whether the district court should have assessed the plaintiff’s Title VII retaliation claim under the Burlington Northern standard, which provides that an employer’s allegedly retaliatory conduct is sufficiently adverse to be actionable as long as it could dissuade a reasonable worker from making or supporting a discrimination charge.

STATEMENT OF THE CASE

A. Statement of Facts

Defendant-Appellee Bentley University (Bentley) hired Plaintiff-Appellant Lupe Stratton in August 2016 as Executive Program Coordinator for its User Experience Center (the Center), a consulting unit that advises third-party clients on how to better serve their own clients. JA278-79, 335. Stratton’s duties included marketing the Center’s services and performing outreach to attract potential clients. JA279, 431. Stratton also provided services for Bentley’s User Experience Certificate Program (the Program), an academic program that trains students in improving client services. JA279. Stratton’s work with the Program involved recruiting students and providing administrative support, with a focus on student retention. JA279, 424.

William Gribbons, Director of Bentley’s Human Factors and Information Design program, oversaw Center and Program operations. JA280, 417. William Albert, the Center’s Executive Director, worked under Gribbons and managed day-to-day aspects of the Center’s professional services. JA280, 430. Gribbons and Albert were Stratton’s immediate supervisors, with Gribbons chiefly managing her Program work and Albert chiefly managing her Center work. JA280-81, 334-35.

Soon after hire, Stratton found her working hours “unsustainable” and her supervisors’ expectations “not as described in [her] interview.” JA335. Furthermore, she testified, Gribbons and Albert would give her inconsistent directions, fail to communicate with one another, and speak to her in “disrespectful” ways that “degraded” and “humiliated” her. JA336-37. Believing her gender, race, and Guatemalan origin motivated this ill treatment, Stratton made “repeated[]” but fruitless discrimination complaints to Human Resources. JA364.

Stratton testified that Gribbons and Albert began to intensify her mistreatment soon after she complained. JA364-65. According to her, they increased her workload and gave her “more administrative tasks.” JA374-75. And they reportedly began to harass her “about any little tiny thing to make it … more difficult to do [her] job.” JA377. For example, Stratton testified, Albert singled her out for public criticism because she was using a computer at a staff meeting, even though other employees were doing the same. JA365. And Gribbons and Albert gave Stratton negative remarks in a performance review for sometimes being away from her office, even though Bentley had agreed to let her work elsewhere on campus as an accommodation for pelvic pain she had developed from sitting at her desk too long. JA302-03, 350, 363-66.

Gribbons and Albert ultimately placed Stratton on a Performance Improvement Plan (PIP) setting out concrete performance expectations. JA300-01. Stratton found these expectations unreasonable in light of her existing workload, and she testified that they required her to extend her workday to attend off-hours events. JA374. More fundamentally, Stratton believed the PIP was not a “good faith effort to assist [her]” but was instead “an effort to force [her] to quit and to feel the mental and physical pressures so that [she] could not take it any longer.” JA377. Feeling she was “deteriorating” and unable to “continue with [the] humiliation, harassment, and … work flow that was unreasonable,” Stratton resigned in July 2018. JA367. Because Stratton was on a PIP, she was ineligible to apply for other positions at Bentley. JA139.

Stratton filed a discrimination charge with the EEOC and received a right-to-sue letter. JA27-28. She then filed this lawsuit against Bentley, claiming (as relevant) that Bentley violated Title VII by retaliating against her for opposing unlawful discrimination. JA16-17. After discovery, Bentley moved for summary judgment. JA48-49.

B. District Court’s Decision and Subsequent Proceedings

The district court granted summary judgment for Bentley on Stratton’s Title VII retaliation claim.[2] Add. 9-11. Explaining that a retaliation plaintiff “must show that her employer took some objectively and materially adverse action against her,” Add. 9 (quoting Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011)), the district court held that no reasonable jury could find any of Bentley’s allegedly retaliatory actions sufficiently adverse to qualify, Add. 10-11.^{^[3]}

The court first held that the allegedly retaliatory increase in harassment was insufficient to create a “hostile work environment” and consequently, in the district court’s view, to constitute actionable retaliation. Add. 10. While acknowledging that harassment can be an actionable form of retaliation, the court cited a pre–Burlington Northern case stating that harassment meets the requisite level of adversity for a retaliation claim only if it is so “severe or pervasive” that it “materially alter[s] the conditions of … employment.” Id. (quoting Noviello, 398 F.3d at 92). And, according to the district court, Stratton had “not identified any harassment that would rise to that level, either in its severity or its interference with her job performance.” Id.

The court next held that the PIP, negative performance-review comments, and general criticisms were not materially adverse as a matter of law because there was no evidence they triggered “any tangible negative consequences … like being docked pay, benefits, or decreased job responsibilities.” Id. And although the court noted Stratton’s assertion that Bentley imposed additional job duties and longer working hours after she complained, it stated that “[a]n increased workload in the same job[] … also does not constitute an adverse employment action.”^{^[4]} Add. 10-11.

After the district court issued its opinion, Stratton filed a motion to amend or alter the judgment. JA607. Citing Burlington Northern, as she had done in her opposition to summary judgment, Stratton argued that the district court failed to apply that case’s retaliation-specific adversity standard. JA616-17; see JA262-63. The district court entered a minute order summarily denying Stratton’s motion. Add. 19.

ARGUMENT

Under Burlington Northern, allegedly retaliatory conduct can be actionable if it could have dissuaded a reasonable worker from engaging in protected activity.

Title VII’s “primary objective” is to ensure “a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Burlington N., 548 U.S. at 63. The statute’s “substantive provision,” id., accordingly makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s” protected characteristic, or “to limit, segregate, or classify [its] employees … in any way which would … adversely affect [an individual’s] status as an employee, because of such individual’s” protected characteristic, 42 U.S.C. § 2000e-2(a). Meanwhile, a separate retaliation provision makes it unlawful for an employer “to discriminate against any of [its] employees … because he has opposed any practice made … unlawful” under the substantive provision. Id. § 2000e-3(a).

In Burlington Northern, the Supreme Court considered whether the latter provision, like the former, “confine[s] actionable [conduct] to activity that affects the terms and conditions of employment.” 548 U.S. at 57. The Court answered in the negative. Id. Concluding that “Title VII’s substantive provision and its antiretaliation provision are not coterminous,” id. at 67, the Court held that the retaliation provision “is not limited to … actions that affect the terms and conditions of employment,” id. at 64. Rather, the Court held, it covers all “materially adverse” actions or, put another way, any actions that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.

The Court rooted this holding in “linguistic differences” between the two provisions. Id. at 62. While the substantive provision contains terms that “explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace,” the Court observed that “[n]o such limiting words appear in the antiretaliation provision.” Id. And this distinction operates to further Title VII’s aims. See id. at 63 (“There is strong reason to believe that Congress intended the differences that its language suggests ….”). Because “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses,” such employees’ “broad protection from retaliation” under the statute “helps ensure the cooperation upon which accomplishment of [Title VII’s] primary [antidiscrimination] objective depends.” Id. at 67.

The district court’s retaliation analysis failed to heed this crucial distinction. In assessing adversity, the court did not make “the critical inquiry”: whether a jury could reasonably find that Bentley’s allegedly retaliatory acts “might deter a reasonable employee from complaining of discrimination.” Booker v. Mass. Dep’t of Pub. Health, 612 F.3d 34, 44 (1st Cir. 2010). Instead, the court asked whether those acts “materially altered the conditions of … employment” or could affect “pay, benefits, or … job responsibilities.” Add. 10 (first quoting Noviello, 398 F.3d at 92). But as this Court has held, after Burlington Northern, “conduct need not relate to the terms or conditions of employment,” or otherwise have a “dramatic impact” on a worker’s job, “to give rise to a retaliation claim.” Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir. 2008).

This foundational error affected the district court’s analysis of each type of allegedly retaliatory conduct. First addressing Stratton’s claim that Gribbons and Albert intensified their harassment, the district court asked whether the increased harassment was so “severe or pervasive” as to “materially alter[] the conditions of … employment.” Add. 10 (quoting Noviello, 398 F.3d at 92). But “severe or pervasive” is the standard for assessing whether harassment creates such a “hostile environment” that it “affects a ‘term, condition, or privilege’ of employment” and so is actionable under Title VII’s substantive provision.[5] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

To determine whether harassment is actionable as retaliation, multiple courts of appeals have recognized that they must apply “the standard applicable to all Title VII retaliation claims,” i.e., “the Burlington Northern ‘well might have dissuaded’ standard.” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020) (per curiam); see Poullard v. McDonald, 829 F.3d 844, 858 (7th Cir. 2016) (applying Burlington Northern standard to claim of retaliation in the form of harassment); Martinelli v. Penn Millers Ins. Co., 269 F. App’x 226, 230 (3d Cir. 2008) (describing a prior circuit precedent’s observation that “employees claiming retaliation by workplace harassment are no longer required to show that the harassment was severe or pervasive enough to constitute a violation of Title VII’s anti-discrimination provision”); Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008) (“As Burlington Northern made clear, … the tests for [discriminatory] harassment and retaliation are not coterminous.”).

This Court should join the others and make clear that Burlington Northern supplies the correct standard for all Title VII retaliation claims, including in cases where the alleged retaliation takes the form of harassment. To be sure, this Court’s Noviello decision—upon which the district court relied, Add. 10—required that retaliation in the form of harassment be sufficiently “severe or pervasive” to alter employment conditions. 398 F.3d at 92. But Noviello predated Burlington Northern and its holding that the adversity standard for retaliation claims differs from the standard for discrimination claims. Because Burlington Northern has undermined Noviello, the latter no longer binds this Court. See United States v. Holloway, 630 F.3d 252, 258 (1st Cir. 2011).

Nor do this Court’s post–Burlington Northern cases foreclose this Court from applying the proper standard. Admittedly, some cases have continued to apply Noviello. See Roman v. Potter, 604 F.3d 34, 42 (1st Cir. 2010). And others have correctly recited the Burlington Northern retaliation standard but then incorporated elements of a discrimination analysis by requiring harassment “severe or pervasive enough to constitute a … hostile work environment.” Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 96 (1st Cir. 2018); see Alvarado v. Donahoe, 687 F.3d 453, 461 (1st Cir. 2012). But this Court’s first relevant decision after Burlington Northern, Agusty-Reyes v. Department of Education, 601 F.3d 45 (1st Cir. 2010), correctly held that “intensification of [preexisting] harassment” could be actionable as retaliation if it could dissuade a reasonable employee from engaging in protected activity, id. at 57; see also Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011) (reiterating that “the escalation of a supervisor’s harassment on the heels of an employee’s complaints about the supervisor is a sufficiently adverse action to support a claim of employer retaliation,” even absent “a tangible employment detriment”).

As the earliest-decided case, Agusty-Reyes should control. See, e.g., Jones v. Aetna Life Ins. Co., 856 F.3d 541, 546 (8th Cir. 2017) (“Generally, in the case of an intracircuit conflict, the earliest opinion controls.”); McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (adopting this approach as the one “followed by most other circuits”); cf. United States v. Cardales-Luna, 632 F.3d 731, 735 n.4 (1st Cir. 2011) (noting that other circuits take this approach but declining to decide whether to adopt it). And in any event, none of this Court’s post–Burlington Northern cases have directly addressed the continued viability of Noviello’s standard in the retaliation context. They accordingly do not bar this Court from resolving the issue here. See United States v. DiPina, 178 F.3d 68, 73 (1st Cir. 1999) (“Where, in a prior decision, we have not considered an issue directly and assessed the arguments of parties with an interest in its resolution, that decision does not bind us in a subsequent case where the issue is adequately presented and squarely before us ….”).

Moving beyond harassment, the district court’s failure to apply Burlington Northern influenced its analysis of Bentley’s other challenged conduct too. In addressing the PIP, negative performance-review remarks, and Gribbons and Albert’s criticisms of Stratton, the district court correctly noted that this Court has held that reprimands are not materially adverse for retaliation purposes unless they carry “tangible, negative consequences.” Add. 10 (citing Bhatti, 659 F.3d at 73). But it went on to suggest that such consequences must be comparable to “docked pay, benefits, or decreased job responsibilities.” Id. Under Burlington Northern, this focus on whether the alleged retaliation “affect[ed] the terms and conditions of employment” was misplaced. 548 U.S. at 64. As this Court has held, a jury could find a reprimand materially adverse even if it “might not have made a dramatic impact on [a plaintiff’s] job,” so long as it could, taken in context, carry sufficient consequences to dissuade a reasonable worker from opposing discrimination. Billings, 515 F.3d at 54; see Burlington N., 548 U.S. at 69 (“Context matters.”).

The district court thus should have looked beyond the lack of an immediate impact on pay, benefits, or job duties and asked whether a reasonable jury could find any other aspect of the PIP or job criticisms—such as ineligibility for an internal transfer, a need to work longer hours, or an increased risk of termination—materially adverse in the context of Stratton’s particular situation. Compare Bhatti, 659 F.3d at 73 & n.16 (holding on case’s facts that no reasonable jury could find unwarranted reprimands materially adverse because, among other things, the criticism carried “no consequences” and the plaintiff was receiving “regular raises” and “generally positive comments on her performance reviews”), with Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 42 (1st Cir. 2011) (holding a jury could find mandatory counseling materially adverse based on evidence that it could cause “invasion of privacy, potential stigma, and possible impact on employment and licensing elsewhere”).

As for the final form of alleged retaliation—added job duties—the district court erred in holding categorically that “increased workload in the same job[]” cannot be materially adverse as a matter of law. Add. 11. Whether an increased workload meets Burlington Northern’s adversity standard necessarily depends on factual context. See Burlington N., 548 U.S. at 69 (“A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”); Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472-73 (1st Cir. 2010) (rejecting a rule that “the denial of an employee’s request for office space cannot, as a categorial matter,” be materially adverse, but holding that no jury could find material adversity on the case’s facts). And neither of the cases the district court cited established any sort of categorical rule. See Bhatti, 659 F.3d at 71, 74 (holding that plaintiff’s claim of being made to “work longer hours than her white counterparts” could not add to hostile work environment because the claim was “belied by the record,” which “reveal[ed] no scheduling disparity”); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 24 (1st Cir. 2002) (pre–Burlington Northern case holding “minor, likely temporary, changes in … working conditions” not to be materially adverse on case’s facts).

To the contrary, a sufficient increase in job duties without a corresponding pay raise could even meet the higher adversity standard applicable to discrimination claims if it amounts in practice to a diminished effective pay rate. See, e.g., Ledbetter v. Alltel Corp. Servs., Inc., 437 F.3d 717, 724 (8th Cir. 2006) (affirming a finding of “adverse employment action” under the discrimination standard where there was evidence plaintiff “undertook new responsibilities without additional pay”); cf. Bence v. Detroit Health Corp., 712 F.2d 1024, 1027 (6th Cir. 1983) (observing in Equal Pay Act case that “[c]omparison of pay rates entails measuring the amount of pay against a common denominator, typically a given time period or quantity or quality of output”).

Ultimately, then, the district court should have asked whether all of Bentley’s allegedly retaliatory actions—taken together—could have dissuaded a reasonable employee in Stratton’s position from making a claim of discrimination. See Billings, 515 F.3d at 54 n.13 (“Of course, retaliatory actions that are not materially adverse when considered individually may collectively amount to a retaliatory hostile work environment.”); cf. Rodríguez-Vives v. P.R. Firefighters Corps of P.R., 743 F.3d 278, 285 (1st Cir. 2014) (reversing Rule 12(b)(6) dismissal after considering the “cumulative[]” effect of alleged actions that may not have sufficed individually to support a retaliation claim). The EEOC takes no position on how this Court should resolve that case-specific inquiry on de novo review. But the EEOC notes that while “[a]n employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience,” Burlington N., 548 U.S. at 68, this Court has held that a reasonable jury could find the Burlington Northern standard satisfied where a supervisor “criticized [the plaintiff] about her work performance, screamed at her in front of her colleagues, and made multiple threats to fire her,” Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 178 (1st Cir. 2015).

CONCLUSION

For the foregoing reasons, this Court should hold that the district court erred in failing to apply the Burlington Northern standard when assessing whether a reasonable jury could find Stratton experienced a materially adverse action for purposes of her retaliation claim.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting 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 COMPLIANCE

I certify that the foregoing brief complies with the type-volume requirements of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it contains 3,598 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).

This brief also complies with the typeface and type style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word with 14-point Century Schoolbook.

/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

Dated: July 22, 2022

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing amicus curiae brief with the Court via the appellate CM/ECF system on July 22, 2022, 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 First Circuit Rule 25.0(c)(1) 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] The EEOC takes no position on any other issue in this appeal.

[2] The district court also granted summary judgment for Bentley on several additional claims Stratton raised under Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act, and state law. Add. 6-9, 12-17. The EEOC takes no position on these rulings.

[3] The district court also noted Stratton’s claim that Bentley’s alleged retaliation led to a constructive discharge. Add. 9. Without disputing that a constructive discharge would be materially adverse, the court held that no reasonable jury could find constructive discharge on this case’s facts. Add. 7-9. The EEOC takes no position on that ruling.

[4] In the alternative, the district court held that no reasonable jury could find a causal link between Stratton’s protected activity and any of Bentley’s allegedly retaliatory actions. Add. 11. The EEOC takes no position on this alternative holding.

[5] The term “retaliatory hostile work environment,” which the district court used, Add. 9, thus risks confusing two distinct concepts. “A hostile work environment is one ‘permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.’” Roy v. Correct Care Sols., LLC, 914 F.3d 52, 61 (1st Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). But because retaliatory conduct need not affect employment terms or conditions, see Burlington N., 548 U.S. at 64, retaliation that takes the form of harassment can be actionable regardless of whether it creates a hostile work environment.