Table of Contents

Certificate of Interested Parties. C-1

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

B............. District Court’s Decision. 5

Murphy’s complaint states an actionable claim of retaliation for opposing a race-based hostile work environment. 6

A............ A plaintiff complaining of retaliation for opposing a hostile work environment under Title VII need only be “close enough” in his understanding of the underlying substantive law. 7

B.............. Murphy reported conduct that was “close enough” to a Title VII violation to render his opposition protected activity. 11

Conclusion. 15

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240 (11th Cir. 2014)........................................................................... 9, 12

*Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................... 2, 6, 7

Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530

.. (6th Cir. 2020)................................................................ 11

Bilal v. Geo Care, LLC, 981 F.3d 903 (11th Cir. 2020).... 14

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc)...................................................... 10

Butler v. Ala. Dep’t of Transp., 536 F.3d 1209 (11th Cir. 2008)............................................................................... 10

Castleberry v. STI Grp., 863 F.3d 259 (3d Cir. 2017)...... 12

*Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 (11th Cir. 2016).................................................................... 8, 14

*Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)................ 9

Howell v. Corr. Med. Servs., 612 F. App’x 590 (11th Cir. 2015) (per curiam)........................................................ 10

Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012)............................................................................... 13

Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).......... 10

Little v. United Techs., Carrier Transicold Div., 103 F.3d 956

.. (11th Cir. 1997).................................................... 5, 11, 12

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002)........................................................................ 13

Mulkey v. Bd. of Comm’rs, 488 F. App’x 384 (11th Cir. 2012) (per curiam)........................................................ 10

Prather v. Norman, 901 F.2d 915 (11th Cir. 1990) (per curiam)........................................................................... 14

Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11 (2d Cir. 2014)............................................................ 13

Scaife v. U.S. Dep’t of Veterans Affs., 49 F.4th 1109 (7th Cir. 2022)........................................................................ 12

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)............................................................................... 11

Weeks v. Harden Mfg. Corp., 291 F.3d 1307 (11th Cir. 2002)................................................................................. 8

Yuknis v. First Student, Inc., 481 F.3d 552 (7th Cir. 2007)........................................................................................ 12

Statutes

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

.. § 2000e-3(a)...................................................................... 7

Other Authorities

EEOC Compliance Manual § 15-VII, 2006 WL 4673430 (2006).............................................................................. 12

EEOC Enforcement Guidance on Retaliation & Related Issues,

.. 2016 WL 4688886 (Aug. 25, 2016)........................... 8, 10

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff Rodney Murphy, a Black man, alleges in relevant part that Defendant Darden Corporation violated Title VII by terminating him for reporting a race-based hostile work environment. The magistrate judge recommended that the district court dismiss the complaint for failure to state a claim, and the district court adopted the recommendation and ordered dismissal. The magistrate judge’s recommendation misconstrued the governing law and wrongly discounted Murphy’s allegations that a coworker called him the N-word and threatened physical violence.

The EEOC has a substantial interest in the proper interpretation of the laws it enforces. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issue [1]

Did Murphy state an actionable claim of retaliation under Title VII where his pro se complaint alleged that he was terminated because he reported that a coworker had called him the N-word and threatened him with physical violence?

Statement of the Case

A. Statement of Facts [2]

Rodney Murphy was a Black line cook at Olive Garden from February through December 2020. R.1-1 at 2.[3] On December 20, he had an altercation with coworker Dennis “Jersey” Sanders. Id. At the request of his manager, Q.C. Hudson, Murphy emailed Regional Manager Chris Wayne on December 27 about the incident. Id. at 5.

Murphy told Wayne that he had informed Sanders he was going to the restroom. Id. While in the restroom, he said, he had complained to another employee that he had “seen too much racial stuff.” Id.

When he returned to the kitchen, Murphy said, he heard a woman named Tera [last name unknown] ask Sanders where he was. Id. Tera appears, from context, to have been Murphy’s supervisor. See id. Murphy said that even though he was standing right behind Tera at the time, Sanders falsely answered that he had no idea. Id.

When he heard this, Murphy said, he exclaimed to Tera, “I just told him I was going to the bathroom.” Id. In response, Sanders said, “o[h] you mocking me.” Id. Murphy replied that he was “mocking the lie that was just told on me.” Id. Sanders then accused Murphy of trying to get a reaction. Id.

At that point, Murphy said, Sanders started shouting, “[Y]ou almost 50, old ass [n**ga] acting like ah hoe, straight bitch!” Id. Tera authorized Murphy to go home for the night and, as she held the door open for him, Sanders warned Murphy, “[I]’m going to get you in the streets.” Id. This comment to “get you in the streets,” Murphy told Wayne, was “a verbal threat.” Id.

Four days after Murphy sent the email, Olive Garden terminated him. Id. at 2. Olive Garden allegedly did so on the ground that Murphy made an unspecified threat, but, Murphy avers, “it was not me who said it.” Id.

Murphy filed an administrative charge with the EEOC. Id. He recounted Sanders’s conduct and also noted, immediately after stating that he is a Black man, that he had met with a manager ten months prior to discuss complaints about his own attitude. Id. When he met with the manager, the charge said, “I reported there was friction before I was hired and it would likely be there after I left. She agreed with my statement.” Id.

After receiving a notice of right to sue, id. at 1, Murphy filed a pro se complaint alleging, in relevant part, that he had been terminated in retaliation for opposing conduct prohibited by Title VII, R.1 at 4. He attached his email to Wayne and his EEOC charge. R.1-1 at 2-3, 5. Murphy sought and obtained leave to proceed in forma pauperis, R.2 at 1; R.5 at 1, and the magistrate judge stayed service of process pending review of his complaint, R.5 at 1.

B. District Court’s Decision

Upon review of the complaint, the magistrate judge determined that it did not comply with the Federal Rules of Civil Procedure and did not state claims for which relief may be granted. R.7 at 1. With respect to the retaliation claim, the magistrate judge explained, “A racially derogatory remark by a co-worker, without more, does not constitute an unlawful employment practice under the opposition clause of Title VII … and opposition to such a remark, consequently, is not statutorily protected activity.” Id. at 10 (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 961 (11th Cir. 1997)). The magistrate judge ordered Murphy to file an amended complaint with factual allegations sufficient to state a claim, id. at 13-14, but Murphy declined to do so on the ground that he had already pleaded sufficient facts in his original complaint, R.9 at 1.

In lieu of dismissing the case for failure to prosecute and/or abide by an order of the court, the magistrate judge once again addressed the merits of the complaint. R.10 at 3. In language virtually identical to that of his previous order,[4] he concluded that Murphy’s “opposition to Sanders’s remark does not rise to the level of statutorily protected conduct.” Id. at 8. Thus, he recommended that the district court dismiss the complaint without prejudice. Id. at 10. The district court adopted the magistrate judge’s recommendation without further analysis, R.12 at 1-2, and entered final judgment, R.13. at 1. Murphy appealed. R.15 at 1.

Argument

Murphy’s complaint states an actionable claim of retaliation for opposing a race-based hostile work environment.

A plaintiff’s burden at the pleading state is minimal—he must present “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Plausibility” does not mean “probability,” but it requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). A claim is facially plausible when the court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Murphy has satisfied this minimal pleading standard.

For the following reasons, the district court wrongly dismissed Murphy’s complaint for failure to state a claim.

A. A plaintiff complaining of retaliation for opposing a hostile work environment under Title VII need only be “close enough” in his understanding of the underlying substantive law.

Title VII’s anti-retaliation provision protects individuals from retaliation for “oppos[ing] any practice made an unlawful employment practice by [Title VII]” (the “opposition clause”), or for “ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under [Title VII]” (the “participation clause”). 42 U.S.C. § 2000e-3(a). This case involves only the opposition clause. That clause protects individuals who “explicitly or implicitly communicate[] a belief that the practice constitutes unlawful employment discrimination.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016) (alteration in original) (quoting EEOC Compliance Manual from 2006); see also EEOC Enforcement Guidance on Retaliation & Related Issues, 2016 WL 4688886, at *7 (Aug. 25, 2016) (stating same rule).

The inquiry into whether an individual has engaged in protected activity has both a subjective and an objective component.^{^[5]} Furcron, 843 F.3d at 1311. A plaintiff need not be correct that the challenged conduct actually violated Title VII, but the conduct must be “close enough” to a statutory violation “to support an objectively reasonable belief” that it was unlawful. Id. (citation omitted). The inquiry into objective reasonableness is “measured by reference to controlling substantive law,” id., and “plaintiffs may not stand on their ignorance of the substantive law to argue that their belief was reasonable,” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1317 (11th Cir. 2002).

The substantive law regarding hostile work environments derives from Title VII’s prohibition against discrimination in the “terms [or] conditions … of employment.” 42 U.S.C. § 2000e-2(a)(1). “‘[D]iscriminatory 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’” violates the statute. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). Whether harassment is sufficiently severe or pervasive to violate Title VII turns on the “totality of the circumstances.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250-51 (11th Cir. 2014) (citation omitted). Relevant considerations “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. “[N]o single factor is required.” Id.

In this circuit, whether opposition to a perceived hostile work environment is objectively reasonable turns on how close the conduct was to “severe or pervasive” harassment.6 Compare Howell v. Corr. Med. Servs., 612 F. App’x 590, 591 (11th Cir. 2015) (per curiam) (objectively reasonable to believe that “various workplace incidents, particularly the racially-tinged comments taken in tandem with” an incident in which an employee shoved plaintiff with a medical cart constituted hostile work environment); Mulkey v. Bd. of Comm’rs, 488 F. App’x 384, 389-90 (11th Cir. 2012) (per curiam) (jury could find it was objectively reasonable to believe that supervisor’s repeated sexual overtures to coworker, as relayed to plaintiff by coworker, constituted hostile work environment), with Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1214 (11th Cir. 2008) (“objectively unreasonable to believe that the use of racially discriminatory language on one occasion by one co-worker away from the workplace” constitutes actionable hostile work environment).

B. Murphy reported conduct that was “close enough” to a Title VII violation to render his opposition protected activity.

The magistrate judge concluded that it was objectively unreasonable for Murphy to believe that he was opposing an actionable hostile work environment because “[a] racially derogatory remark made by a co-worker, without more, does not constitute an unlawful employment practice under the opposition clause of Title VII … and opposition to such a remark, consequently, is not statutorily protected conduct.” R.10 at 7 (quoting Little, 103 F.3d at 961). The magistrate judge’s analysis understated Murphy’s allegations and misconstrued the governing law.

Murphy alleged that Sanders targeted him with the N-word. R.1-1 at 2, 5. The N-word is “perhaps the most offensive and inflammatory racial slur in English,” Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 543 n.7 (6th Cir. 2020) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)), and is “pure anathema to African-Americans,” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001). Numerous courts of appeals have recognized that a single use of the word can, in certain circumstances, create a hostile work environment. See, e.g., Scaife v. U.S. Dep’t of Veterans Affs., 49 F.4th 1109, 1116 (7th Cir. 2022); Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022); Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017); see also EEOC Compliance Manual § 15-VII, 2006 WL 4673430, at text accompanying n.129 (2006) (“Examples of the types of single incidents that can create a hostile work environment based on race include … an unambiguous racial epithet such as the ‘N-word[.]’”).

Murphy’s allegation that Sanders said the N-word directly to him distinguishes this case from Little, in which an individual told a White coworker, “Nobody runs this team but a bunch of [n**gers] and I’m going to get rid of them.” Little, 103 F.3d at 958. Slurs to and about an individual are more severe than generalized slurs about others. Adams, 754 F.3d at 1254-55. They are infinitely more severe than slurs to White employees about Black coworkers, as occurred in Little. See Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007) (“The fact that one’s coworkers do or say things that offend one, however deeply, does not amount to harassment if one is not within the target area of the offending conduct—if, for example, the speech or conduct is … offensive to whites and one is a black.”).

Comments are especially “humiliating and degrading” when they are made in front of others. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002). Thus, the fact that Sanders used the N-word in front of Tera added to its severity.

Significantly, Murphy alleged more than a simple derogatory remark: he alleged that Sanders threatened physical violence. R.1-1 at 2, 5. “Physically threatening” conduct is “an important factor in [this Court’s] hostile work environment analysis.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1303 (11th Cir. 2012); see also Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (“The use of racially offensive language is particularly likely to create a hostile work environment when, as here, it is presented in a ‘physically threatening’ manner.”) (citation omitted).

Finally, Murphy arguably alleged a broader pattern of discrimination. His email to Wayne referenced “too much racial stuff,” R.1-1 at 5, and his EEOC charge said a manager agreed with him that “there was friction before I was hired and it would likely be there after I left,” R.1-1 at 2. Although neither statement provided details, and Murphy did not expressly state that the “friction” was race-related, it is reasonable to infer that Sanders’s use of the N-word was one example of a larger pattern of racial hostility.

This inference is especially appropriate in light of Murphy’s pro se status. This Court has recognized that pro se complaints “are frequently less than artful in … their presentation of the facts,” and held that courts must construe them liberally. Prather v. Norman, 901 F.2d 915, 920 n.8 (11th Cir. 1990) (per curiam); see also Bilal v. Geo Care, LLC, 981 F.3d 903, 914 n.10 (11th Cir. 2020) (construing pro se complaint stating that plaintiff had botulism to mean, instead, that he had “some type of food poisoning”).

Whether Murphy opposed conduct that actually amounted to a Title VII violation is not at issue. What matters is only whether he alleged conduct that is “close enough” to render his belief that he was opposing unlawful conduct objectively reasonable. Furcron, 843 F.3d at 1311. Viewing all of his factual allegations in the light most favorable to him, his allegations were “close enough.”

Conclusion

The district court erred in dismissing Murphy’s complaint for failure to state a claim. For the foregoing reasons, the EEOC urges this Court to reverse and remand for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

DARA S. SMITH

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

[1] The EEOC takes no position on any other issue in this case.

[2] The EEOC assumes the veracity of Murphy’s factual allegations, consistent with the standard of review for dismissal of a complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

[3] References to the record take the form R.__ at __, identifying the district court docket number and the page number from the electronic filing system.

[4] The original order expressly questioned whether Murphy had “exhaust[ed] his administrative remedies” because he had not marked the “retaliation” box on his EEOC charge. R.7 at 11. The subsequent recommendation deleted this language. In both cases, the magistrate judge addressed the retaliation claim “based on a liberal construction of Murphy’s Complaint.” R.7 at 10 n.8; R.10 at 7 n.4.

[5] The magistrate judge did not challenge Murphy’s subjective belief.

6 The Fourth Circuit, in contrast, holds that “an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4th Cir. 2015) (en banc). The EEOC believes that the Fourth Circuit’s rule is most consistent with Title VII’s primary purpose “not to provide redress but to avoid harm.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999); see EEOC Enforcement Guidance on Retaliation & Related Issues, 2016 WL 4688886 at Example 5 & n.64.