TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................... ii

STATEMENT OF INTEREST.......................................... 1

STATEMENT OF THE ISSUES....................................... 2

STATEMENT OF THE CASE

1. Factual Background................................................. 3

2. Procedural Background........................................... 7

ARGUMENT

I. A reasonable jury could find that XXXXXXX was

subjected to a hostile work environment at XXXXXXX

because of his national origin....................................... 9

A. A jury could find that the harassment by

XXXXXXX’s supervisors because of his national origin

was sufficiently severe or pervasive to create

a hostile work environment.......................................... 9

B. The district court misunderstood and misapplied

the governing legal principles...................................... 14

II. XXXXXXX did not establish either prong

of the Faragher-Ellerth affirmative defense.............. 20

CONCLUSION................................................................ 26

CERTIFICATE OF COMPLIANCE............................... 27

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page(s)

Aulicino v. New York City Dep’t of Homeless Services,

580 F.3d 73 (2d Cir. 2009).......................................... 10

Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264 (4th Cir. 2015) (en banc)........... 10-11, 16

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998)................................................ 2, 21-

Carr v. Allison Gas Turbine Div., General Motors Corp.,

32 F.3d 1007 (7th Cir. 1994)....................................... 19

Cerros v. Steel Technologies, Inc.,

398 F.3d 944 (7th Cir. 2005)....................................... 14

Diaz v. Swift-Echrich, Inc.,

318 F.3d 796 (8th Cir. 2003)....................................... 13

Fairbrother v. Morrison,

412 F.3d 39 (2d Cir. 2005), abrogated in part by

Kessler v. West Chester County. Dep’t. of Social Services,

461 F.3d 199 (2d Cir. 2006).................................. 21, 24

Faragher v. City of Boca Raton,

524 U.S. 775 (1998).......................................... 2, 10, 21

Feingold v. New York,

366 F.3d 138 (2d Cir. 2004)......................................... 9

Fox v. Costco Wholesale Corp.,

918 F.3d 65 (2d Cir. 2019).......................................... 13

Gorzynski v. JetBlue Airways Corp.,

596 F.3d 93 (2d Cir. 2010)......................... 14-15, 16, 25

Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993)...................................... 9, 10, 11, 20

Hernandez v. Valley View Hospital Ass’n,

684 F.3d 950 (10th Cir. 2012)............................... 13, 16

Howley v. Town of Stratford,

217 F.3d 141 (2d Cir. 2000)........................................ 16

Oncale v. Sundowner Offshore Services, Inc.,

523 U.S. 75 (1998)............................................. 9-10, 17

Petrosino v. Bell Atlantic,

385 F.3d 210 (2d Cir. 2004)................................... 23-24

Pucino v. Verizon Wireless Communications, Inc.,

618 F.3d 112 (2d Cir. 2010)........................................ 14

Redd v. New York Division of Parole,

678 F.3d 166 (2d Cir. 2012).................................. 14, 17

Richardson v. N.Y. State Dep’t. of Correctional Service,

180 F.3d 426 (2d Cir. 1999)........................................ 14

Rivera v. Rochester Genesee Regional Transportation Authority,

743 F.3d 11 (2d Cir. 2014)..................... 3, 11-12, 13, 18

Schiano v. Quality Payroll Systems, Inc.,

445 F.3d 597 (2d Cir. 2006)........................................ 20

Statutes and Rules

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.,.................................. passim

Federal Rule of Appellate Procedure 29(a)........................ 1

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case presents the question whether a reasonable jury could find that the plaintiff, who is not a native English speaker, was subjected to a hostile work environment based on national origin where evidence shows that his supervisors regularly called him “crazy Persian” and mocked his name, his accent, and his speech, both in face-to-face interactions and during meeting and conference calls with the plaintiff’s subordinates and peers. The district court rejected the claim, concluding that the “frequency and severity of the incidents [did] not rise to a level sufficient to create a hostile work environment.” Appellant’s Special Appendix (“SPA.”) 22. In reaching this conclusion, the court misconstrued and misapplied the standards for hostile work environment claims. If this Court were to affirm, its ruling could limit Title VII’s protections against actionable harassment. We therefore offer our views to this Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. The plaintiff, who is originally from Iran, introduced evidence showing that his first- and second-line supervisors continually called him names such as “crazy Persian” and routinely ridiculed his name, accent, grammar, and speech in face-to-face interactions and meetings in front of the plaintiff’s subordinates and peers. Did the district court err in concluding that no reasonable jury could have found that the plaintiff was subjected to a hostile work environment based on his national origin?

2. The defendant may argue the judgment should be affirmed on the alternative ground that the defendant is entitled to the affirmative defense described in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Did the defendant fail to establish both elements of that defense on summary judgment where there is evidence that the plaintiff complained to senior management about the harassment, in accordance with the company’s anti-harassment policy, and the defendant took no action in response to those complaints?

STATEMENT OF THE CASE

A. Factual Background[2]

XXXXXXX XXXXXXX came to the United States from Iran after receiving political asylum. Appellant’s Appendix (“A.”) 45. A former kickboxing champion and coach with a degree in business management, A.31, A.45-46, XXXXXXX found employment in the fitness industry. In 2011, he began working for XXXXXXX (“XXXXXXX”), a company that owns and operates numerous “luxury” fitness clubs. A.84; A.800. Within a year or so, he was promoted to Fitness Manager and then to Personal Training Manager. A.134-35, A.157. Starting in late 2013, XXXXXXX worked at the company’s club in XXXXXXX, New York, where he supervised about forty employees, including all the personal trainers and fitness managers. A.162, A.171, A.173. He held that position until his termination in 2015. A.171, A.371.

A native speaker of Farsi, A.32, XXXXXXX’s English, though fluent, is accented and grammatically imperfect. Cf. A.646 (Solano: agreeing he sometimes has trouble understanding what XXXXXXX is saying). He testified that his second-line supervisor, Josh Harrison, regularly made fun of his name and speech and called him “crazy Persian” in weekly and monthly meetings and conference calls with other managers — XXXXXXX’s subordinates and peers. See, e.g., A.183, A.291-97. For example, according to XXXXXXX, when Harrison was speaking to or about XXXXXXX, he elongated each syllable of XXXXXXX’s name. A.294-95 (noting “it is not pretty when you do that to your manager”). Harrison also mimicked XXXXXXX’s accent. A.295; A.696-710 (Solano).

Ramon Solano, another former manager who was not a native English speaker, A.662-63, confirmed XXXXXXX’s description of Harrison’s conduct during the conference calls. See generally A.696-98, A.700-07(adding Harrison also “frequently” asked XXXXXXX “to repeat what he was saying”). According to Solano, everyone except XXXXXXX found Harrison’s conduct very funny. A.708; A.710 (noting “people laugh”). Solano acknowledged that Harrison also sometimes made fun of Solano’s accent and grammar and attempted to speak Spanish. A.698-99, A.712. He explained that, although he himself did not normally take offense, A.698, “if you’re trying to call my name, Ramon, like making fun of my accent and try to mimic how I talk, it can be offen[sive].” A.700. Solano also stated, “[i]f I am trying to mimic the way you talk, that’s not nice.” A.707. Moreover, he added, “if you want to joke with me, let’s joke between you and me,” not “in a conference call or in front of everybody.” A.708.

There is no evidence that Harrison made fun of the names, accents, or speech patterns of any employees other than XXXXXXX and Solano. A.296-97; A.711-13 (Solano: Harrison poked fun at XXXXXXX and Solano but not other call participants). Harrison admitted that he once greeted XXXXXXX by pronouncing his entire name as a single word — “XXXXXXXXXXXXXX, as I live and breathe” — but as “a term of endearment, not in a derogatory or mean way.” A.472. He denied “mak[ing] fun of [XXXXXXX’s] accent or the way he spoke on the conferences calls.” A.473; see also A.446 (never called him or heard others call him “fucking” or “crazy” Persian). And while he was “friendly” with the managers he supervised, he denied ever “pok[ing] fun” at any of them. A.474.

Harrison was not the only supervisor who called XXXXXXX names and made fun of his accent and grammar. XXXXXXX also complained that Matt Bekteshi, his first-line supervisor and the General Manager of the XXXXXXX, called him “fucking crazy Persian, maniac.” A.239, A.254 (“crazy Persian” or “maniac” or “crazy accent”); see also A.508 (Bekteshi: admitting he called XXXXXXX “crazy Persian maniac”). In addition, “in front of everybody,” Bekteshi made fun of XXXXXXX’s accent and grammar, tried to correct him, and pretended he could not understand what XXXXXXX was saying. A.254. According to XXXXXXX, this conduct happened daily, every time he went into Bekteshi’s office. A.254-55, As an example, XXXXXXX recounted that Bekteshi wrote “we kick the asses” across the top of one of XXXXXXX’s photos. A.185. XXXXXXX used the term “kicked asses,” or, with his faulty grammar, “kicked the asses,” when he “hit the budget” or had a successful week. A.185-86. In XXXXXXX’s view, Bekteshi’s written comment made fun of this grammatical mistake. Id. XXXXXXX described Bekteshi‘s conduct as “disturbing,” adding that he no longer wanted “any interaction with [Bekteshi] anymore.” A.254.

XXXXXXX acknowledged that, as a “joke,” he sometimes told Bekteshi that he would kick his ass or kick him in the head. A.184. But XXXXXXX never joked about the way he himself spoke or wrote in English. A.240 (also denying he ever made statements about his writing or speaking proficiency in English).

In the fall of 2014, XXXXXXX complained about the harassment, along with other issues, to Area Manager James Gu, A.495, and Regional Director of Personal Training Michael Caporusso, A.800. XXXXXXX asked each man for a transfer. A.221-22 (Gu); A.233 (Caporusso). To Gu, he stated that he was “upset” and wanted to transfer because Bekteshi would “mimic” and “make fun of” his “accent.” A.221-22. Gu responded that XXXXXXX “d[id]n’t need to get [a] transfer” because he would talk to Bekteshi, A.222, but there is no evidence he and Bekteshi had any such conversation. To Caporusso, XXXXXXX complained that he did “not want to be [at XXXXXXX] anymore” and would like to “get a transfer” because Harrison was “bothering [him] a lot,” “making fun of [his] name,” and “exaggerat[ing] [his] name on weekly phone calls.” A.231-33, A.235-37. There is no evidence of how Caporusso responded, but XXXXXXX was not transferred. He was terminated on April 1, 2015, ostensibly for allowing a regular customer, against the rules, to use his employee discount for personal training sessions. A.371, A.802.

B. Procedural Background

In 2016, XXXXXXX brought suit under Title VII against his employer. As relevant here, he alleged that he was subjected to a hostile work environment based on his national origin. A.12-17 (Complaint).

The district court granted summary judgment to XXXXXXX. The court explained that, to establish a hostile work environment claim, the complained-of conduct must be sufficiently severe or pervasive to create an environment that a reasonable person would find, and that the plaintiff did find, hostile or abusive, because of a protected characteristic — here, national origin. SPA.19-20.

Applying that standard, the court determined first that “the frequency and severity of the incidents [XXXXXXX complained of] do not rise to a level sufficient to create a hostile work environment.” SPA.22. The alleged comments by XXXXXXX’s supervisors, the court opined, “while perhaps insulting and offensive,” were “not reflective of discriminatory animus” or “indicative of pervasive hostility toward [XXXXXXX] because of his national origin.” Id. Rather, the court stated, the “record clearly reflects that Harrison frequently elongated many other employees’ names, regardless of national origin.” Id. Moreover, the court added, XXXXXXX himself “participated in similar antics,” telling Bekteshi — “presumably in a lighthearted manner” — that he was going to “kick [his] ass” or “kick [him] in the head.” Id. at 22-23. And “because XXXXXXX himself participated in similar, objectionable conduct,” the court could not conclude that “Bekteshi or Harrison’s ‘crazy Persian’ remarks, although they were recited regularly, created a hostile work environment directed at the Plaintiff.” Id. at 23.

Turning to other factors that can be indicative of a hostile work environment, the court determined that they weighed in favor of XXXXXXX. SPA.23. The court explained that XXXXXXX pointed to no evidence that his supervisors ever physically threatened or humiliated him, “even as part of a joke.” Id. In addition, the court observed that XXXXXXX did not show that his supervisors’ conduct “influenced or interfered with his work” or caused any “psychological harm.” Id. at 23-24. And while XXXXXXX contended that he complained about the harassment and requested a transfer, “the record reflects only general complaints of largely business-related conduct.” Id. at 23. Thus, the court concluded, viewing “the totality of the record,” XXXXXXX failed to provide “sufficient evidence to raise a disputed issue of fact as to his hostile work environment claim.” Id. at 24.

ARGUMENT

I. A reasonable jury could find that XXXXXXX was subjected to a hostile work environment at XXXXXXX because of his national origin.

Originally from Iran, plaintiff XXXXXXX XXXXXXX presented evidence that his first- and second-line supervisors routinely called him names like “crazy Persian” and ridiculed his name, accent, grammar, and speech, both in face-to-face interactions and in meetings in front of peers and subordinates. The district court erred in concluding that no reasonable jury could find that XXXXXXX endured harassment based on his national origin that was sufficiently sevenere or pervasive to create a hostile or abusive work environment.

A. A jury could find that the harassment by XXXXXXX’s supervisors because of his national origin was sufficiently

severe or pervasive to create a hostile work environment.

Title VII prohibits employers from subjecting their employees to a hostile work environment because of their national origin or other protected characteristic. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To be actionable, harassment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id.; Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citations omitted). The plaintiff must show both that he subjectively found the environment to be hostile or abusive and that “a reasonable person in the plaintiff’s position” would likewise find it so. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 21-22.

Whether harassment is hostile or abusive “can be determined only by looking at all the circumstances,” Harris, 510 U.S. at 23; all of the alleged incidents must be “considered cumulatively in order to obtain a realistic view of the work environment.” Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 83 (2d Cir. 2009) (citation omitted). Factors relevant to this determination “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or merely an offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. This Court’s “case law treats the first two of these factors — the frequency and the severity of the misconduct — as the principal focus of the analysis.” Aulicino, 580 F.3d at 82. Also relevant is whether the harasser is a supervisor or a mere coworker. “When a person with supervisory authority discriminates in the terms and conditions of subordinates’ employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor’s abusive conduct the same way that [the employee] might deal with abuse from a coworker.” Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998); see also, e.g., Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 278 (4th Cir. 2015) (en banc) (stating that “[i]n measuring the severity of harassing conduct, the status of the harasser [as a supervisor] may be a significant factor — e.g., a supervisor’s use of [a racial epithet] impacts the work environment far more severely than use by co-equals”). However, “no single factor is required,” and a plaintiff need not establish that “the conduct ‘seriously affect[ed] [his] psychological well-being” or led him to “suffe[r] injury.” Harris, 510 U.S. at 22-23.

Applying these standards in Rivera v. Rochester Genesee Regional Transportation Authority, 743 F.3d 11 (2d Cir. 2014), this Court reversed a grant of summary judgment to an employer on a national-origin-based hostile work environment claim. Id. at 23. There, the plaintiff, who was from Puerto Rico, testified that a coworker, alone or with others, called him “spic” approximately three times, chanted “[w]hat’s that smell . . . there is Taco Bell” at least five times, and engaged in bullying and other harassment that reflected ethnic animus. Id. at 20-23. Observing that some evidence suggested that the harassment was the result of a personal conflict, not the plaintiff’s national origin, the Court described the case as a “close call.” Id. at 20-21. Nevertheless, the Court concluded that the issue should be “left for the jury to decide at trial, since [the plaintiff’s] deposition testimony about [the harasser’s] use of ethnic slurs was not conclusory, and a reasonable jury could credit [the plaintiff’s] testimony on this point, and discount the evidence demonstrating that [the] harassment was not on account of [the plaintiff’s] national origin.” Id. at 21.

Similarly, here, this Court should reverse the grant of summary judgment for XXXXXXX because, considering all of the alleged incidents cumulatively, a reasonable jury could find that XXXXXXX was subjected to a hostile work environment because of his national origin. As noted above, the evidence shows that his first- and second-line supervisors regularly called him names based on his ethnicity such as “crazy Persian” and made fun of his name, his accent, his grammar, and generally how he speaks. See, e.g., A.183, A.198, A.254-55, A.258, A.293-95. These comments occurred in daily interactions with Bekteshi, A.254-55, and in weekly and monthly meetings and conference calls with Harrison, in front of XXXXXXX’s peers and subordinates, who laughed at the treatment. A.182-83, A.281; A.696-710 (Solano, discussing calls). The conduct was objectively offensive; even Solano — who testified that he generally was not bothered when Harrison made fun of his English — commented that it is “not nice” when someone tries “to mimic the way you talk” in front of “everybody.” A.707. And, although the district court concluded that “the record reflects [that XXXXXXX made] only general complaints [to his superiors] of largely business-related conduct,” SPA.23, XXXXXXX testified that he complained about the harassment to two management officials and requested a transfer. See generally A.221-37. This strongly suggests he subjectively found the harassment abusive enough to want to get away. This testimony must be credited at the summary-judgment stage of the district court proceedings. See, e.g., Rivera, 743 F.3d at 16.

Thus, even if this case is a “close call,” viewing the totality of the circumstances, including the fact that the two harassers were XXXXXXX’s supervisors, there is sufficient evidence to support a finding that the harassment was sufficiently severe or pervasive to be actionable. See also, e.g., Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 954, 958-59 (10th Cir. 2012) (holding there was actionable harassment because of race and national origin based on “at least a dozen racially offensive comments and jokes,” such as a “joke” that “Mexicans and Latinos make tamales for Christmas” so that “they can have something to unwrap”); Diaz v. Swift-Echrich, Inc., 318 F.3d 796, 800-01 (8th Cir. 2003) (concluding there was actionable harassment based on national origin where “a fact-finder could conclude that the harassment was frequent, that the demeaning comments and conduct were specifically directed at [the plaintiff] from a close range, and that other employees were sometimes present”); cf. Fox v. Costco Wholesale Corp., 918 F.3d 65, 75-76 (2d Cir. 2019) (concluding that evidence of coworkers’ continual mimicking of plaintiff’s disability-related verbal tics, causing other employees to laugh, raised issue of fact as to whether coworkers “engaged in ongoing and pervasive discriminatory conduct”).

B. The district court misunderstood and misapplied the governing legal principles.

In concluding that XXXXXXX’s “allegations failed to raise a triable issue of fact,” SPA.22, the district court misconstrued and misapplied the applicable standards for assessing a hostile work environment.

First, although the district court stated that “the frequency and severity of the incidents [did] not rise to a level sufficient to create a hostile work environment,” SPA.22, the court never actually analyzed whether the incidents were “sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements” to have altered XXXXXXX’s working conditions. Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010) (emphasis omitted) (“a plaintiff need not show that her hostile working environment was both severe and pervasive”); see also Richardson v. N.Y. State Dep’t. of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999). Whether conduct is “severe” turns on the degree to which it is egregious. See, e.g., Redd v. N.Y. Div. of Parole, 678 F.3d 166, 179-82 (2d Cir. 2012) (“Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment . . . .”); Cerros v. Steel Techs., Inc., 398 F.3d 944, 950 (7th Cir. 2005) (“an unambiguously racial epithet falls on the ‘more severe’ end of the spectrum” (citation omitted)). Alternatively, to be deemed “pervasive,” incidents must be “more than episodic; they must be sufficiently continuous and concerted.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (citation omitted).

Here, the district court never evaluated whether the incidents in question were egregious enough to qualify as “severe,” nor whether the conduct was “sufficiently continuous and concerted” to qualify as “pervasive,” Gorzynski, 590 F.3d at 102. To the extent that any language in the opinion addressed these critical issues, it would support a determination that the conduct in question was severe and pervasive: the court acknowledged that the comments by Harrison and Bekteshi were “perhaps insulting and offensive,” SPA.22, and it agreed that the two supervisors’ “‘crazy Persian’ remarks . . . were recited regularly.” Id. at 23.

As explained above on pages 3 through 7, XXXXXXX testified that Bekteshi taunted him daily about his accent, grammar, and speech, and pretended that he could not understand what XXXXXXX was saying. A.254-56 (mocking took place “in front of everybody”). As for Harrison, XXXXXXX’s testimony, supported by Solano’s, was that Harrison made fun of XXXXXXX’s accent and speech — and even his name — in weekly and monthly conference calls in front of his subordinates as well as his peers. See, e.g., A.183, A.196, A.198, A.254-58, A.294-95; A.696-98, A.703-06 (happened 50-60 % of the time), A.707-08. This evidence, viewed as a whole, would, at a minimum, support a finding that the harassment was “sufficiently continuous and concerted” to be deemed “pervasive.” Gorzynski, 590 F.3d at 102; see also, e.g., Hernandez, 684 F.3d at 958-59. And, particularly because XXXXXXX’s harassers were his supervisors and made some of the harassing comments in front of XXXXXXX’s subordinates and peers, a jury could find the conduct was especially humiliating and might even undermine his stature vis a vis his subordinates. It could therefore also be deemed severe. See Boyer-Liberto, 786 F.3d at 277-78; see also, e.g., Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (“verbal assault” of plaintiff in front of large group of her subordinates, undermining her authority, was relevant to severity). The district court’s failure to engage in the required inquiry into severity and pervasiveness infected the entire decision.

It appears that the district court failed to conduct the appropriate inquiry into severity and pervasiveness because it conflated that inquiry with the inquiry into whether the conduct was based on XXXXXXX’s national origin. Indeed, the court purported to support its conclusion that “the frequency and severity” factors were not present by stating that the comments by XXXXXXX’s supervisors were “not reflective of discriminatory animus.” SPA.22. But the court’s analysis of that distinct question was flawed.

Although not entirely clear, it appears that the court concluded that XXXXXXX’s supervisors did not discriminate against him based on national origin because, in the court’s view, they were not motivated by ill intent or hostility towards XXXXXXX’s national origin. See SPA.22 (noting there was no “pervasive hostility toward the Plaintiff because of his national origin” (emphasis added)). In fact, however, jurors hearing that XXXXXXX was called “a fucking Persian” or “a fucking crazy Persian,” A.197-98, A.239, A.384, might well find that some degree of hostility was directed XXXXXXX and his national origin.

But in any case such hostility is not required. This is clear from sexual harassment cases where the harasser made sexual advances and was motivated at least in part by sexual desire. See, e.g., Redd, 678 F.3d at 179 (jury could conclude that supervisor was making “homosexual advances” when she touched the plaintiff, thus establishing that the conduct was because of the plaintiff’s sex (citation omitted)); see also, e.g., Oncale, 523 U.S. at 80 (explaining that actionable sexual harassment may — but need not — be “motivated by sexual desire to support an inference of discrimination on the basis of sex”). As the Supreme Court has explained, the “critical issue” is “whether members of one [protected group] were exposed to disadvantageous terms or conditions of employment to which members [not in that group] are not exposed.” Oncale, 523 U.S. at 80 (citation omitted). Based on the evidence here, a jury could find that his supervisors constantly targeted XXXXXXX, mocking his name and speech, causing subordinates and peers to laugh at his expense. See A.254, A.706, A.710. As such, he was exposed to disadvantageous terms or conditions of employment to which other employees — native-born Americans — were not exposed. The environment must be hostile or abusive, but the harassers’ motivation need not be.

The district court also erred when it concluded that there was no discrimination based on national origin here because the “record clearly reflects that Harrison frequently elongated many other employees’ names, regardless of national origin.” STA.22. Viewed in the light most favorable to XXXXXXX, see Rivera, 743 F.3d at 16, the record shows that the only other person whose name and accent Harrison made fun of was Solano, another manager who was not originally from the United States.[3] A.698-99, 712. And, in any event, the harassment here was not limited to Harrison’s elongation of XXXXXXX’s name but also extended to conduct by Harrison and Bekteshi that was overtly linked to XXXXXXX’s national origin, including calling him “crazy Persian” and making fun of his accent and grammar. See, e.g., A.197-98, A.239; A.697, A.706-08 (Solano, discussing Harrison’s conduct);

The district court was also mistaken when it reasoned that there was no hostile work environment because XXXXXXX engaged in “similar antics” by stating — “presumably in a lighthearted manner” — that he would “kick [Bekteshi’s] ass” or “kick [him] in the head.” STA.22-23. The court did not explain why these so-called “similar antics” had anything to do with whether XXXXXXX was subjected to a hostile work environment based on national origin; the court simply asserted that they did. According to the record, however, XXXXXXX routinely endured ridicule of his name, his accent, and his less-than-flawless English. If he responded by stating that he would “kick ass” or even kick someone in the head, that would hardly justify the supervisors’ harassing behavior or suggest that XXXXXXX found the conduct anything other than hostile and offensive. See, e.g., Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1011 (7th Cir. 1994) (female employee’s crude behavior and language did not “justify” the male employees’ sexual harassment “and exonerate their employer”). Furthermore, XXXXXXX explained that he typically used the phrase “kick ass” to mean that he “hit the budget” or had a particularly successful week. A.185. The district court did not explain how XXXXXXX’s use of that phrase gave his supervisors permission persistently to mock his name and speech. That is particularly true with respect to Harrison, given that none of XXXXXXX’s so-called “antics” were directed at him.

As for the “remaining hostile work environment factors” that the district court considered, SPA.23, although XXXXXXX’s supervisors never “physically threatened or humiliated” him, interfered with his work performance, or caused him psychological harm, id. at 23-24, none of those factors are indispensable elements of a hostile work environment claim. See Harris, 510 U.S. at 22-23 (holding that “no single factor is required” and expressly rejecting requirement of psychological harm); Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006) (improper to examine each Harris factor in isolation, “comparing and contrasting its presence in [the plaintiff’s] allegations with the fact patterns from previous cases”). As the Harris Court explained, “even without regard to” whether the complained-of conduct caused such “tangible effects,” the “very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . national origin offends Title VII’s broad rule of workplace equality.” 510 U.S. at 22. This Court should therefore reverse the grant of summary judgment in favor of XXXXXXX.

II. XXXXXXX did not establish either prong of the Faragher-Ellerth affirmative defense.

In district court, XXXXXXX argued that even if the conduct of XXXXXXX’s supervisors created an actionable hostile work environment, liability could not be imputed to XXXXXXX because XXXXXXX “never made a protected complaint of discrimination” prior to his termination. A.867. The district court did not reach that issue, but in the event that XXXXXXX reasserts it on appeal as an alternative ground for affirmance, this Court should reject it.

XXXXXXX’s argument is based on an affirmative defense known as the “Faragher-Ellerth defense” that was set forth in two companion Supreme Court cases, Faragher, 524 U.S. at 807, and Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998). In those decisions, the Court held that an employer is “subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Where no “tangible employment action” has been taken, however, the employer may establish “an affirmative defense to liability or damages” by proving “two necessary elements” — (1) that the employer “exercised reasonable care to prevent and correct promptly any . . . harassing behavior”; and (2) that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The employer bears the burden of establishing each element of this affirmative defense. Fairbrother v. Morrison, 412 F.3d 39, 52 (2d Cir. 2005) (adding, “it is rare that the party having the burden of proof on an issue at trial is entitled to a directed verdict”), abrogated in part on other grounds by Kessler v. West Chester Cty. Dep’t. of Soc. Servs., 461 F.3d 199, 207-08 (2d Cir. 2006).

In arguing that it is entitled to summary judgment on this basis, XXXXXXX pointed out that the company has a written anti-harassment policy. See A.867. The policy specifies that employees who believe they have been harassed on the job “should provide a written or verbal complaint to their immediate supervisor, senior management, or the Human Resources Department”; employees may also use the Ethics Hotline to report “any instances of harassment or inappropriate conduct.” A.739. The company appeared to contend that the existence of the anti-discrimination policy sufficed to prove the first Faragher-Ellerth element concerning whether it had exercised reasonable care to prevent and correct promptly any harassment. Cf. A.867. The company also asserted that, prior to his termination, XXXXXXX never made a “protected complaint” about his harassment, further noting that he could have complained to the Human Resources Department or the Ethics Hotline under the policy. See id.[4] According to the company, this evidence was enough to prove the second Faragher-Ellerth element concerning whether XXXXXXX unreasonably failed to take advantage of XXXXXXX’s preventive or corrective opportunities or to avoid harm otherwise.

In fact, however, the evidence, viewed in the light most favorable to XXXXXXX, is not so one sided. XXXXXXX testified that he told Gu, the Area Manager, that he was “upset” and wanted a transfer because Bekteshi “mimic[ked]” and made fun of his “accent.” A.221-22; A.495. Gu told XXXXXXX that he “[didn’t] need to get [a] transfer” because Gu would “talk” to Bekteshi. A.222. XXXXXXX also testified that twice in the late fall of 2014, he told Caporusso, the Regional Director of Personal Training, that Harrison was “making fun of [his] name on the conference call[s],” and XXXXXXX again requested a transfer because Harrison was “bothering” him “a lot,” and it was “hard to work [t]here.” A.232, A.236-37; A.800. There is no evidence that anyone at XXXXXXX took any steps to end the harassment or that it stopped before XXXXXXX’s termination, months later, in April 2015. A.371. If it believed this evidence, a jury could find that both Gu and Caporusso are “senior management” within the meaning of XXXXXXX’s anti-harassment policy, A.739, and thus the policy entitled XXXXXXX to direct his complaints about the harassment to them.

In light of this evidence, a reasonable jury would not be compelled to find either that XXXXXXX took reasonable steps to correct promptly the harassment XXXXXXX experienced or that XXXXXXX unreasonably failed to submit complaints about the harassment to XXXXXXX officials. A similar scenario was presented in Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004). There, the employer argued that it satisfied the first element of the Faragher-Ellerth defense because it had a documented anti-harassment policy in place, including a hotline for complaints, and it satisfied the second element because, after her initial call to the hotline, the plaintiff never answered the employer’s follow-up calls. Id. at 226. This Court concluded that summary judgment for the employer would be improper because the plaintiff testified that the employer did not respond to her initial complaint. Id. Viewing the facts in the plaintiff’s favor, the Court could not conclude “as a matter of law that [the defendant had] so conclusively demonstrated the effectiveness of its anti-harassment policy or the unreasonableness of [the plaintiff’s] actions to be absolved of liability” for any hostile work environment. Id. (also noting that the existence of an anti-harassment policy “alone” is “not necessarily dispositive” of the question whether an employer exercised “reasonable care” (citation omitted)); see also Fairbrother, 412 F.3d at 53-55 (holding that defendants “failed to attain [the] high standard” of proof for the second element because they did not “conclusively” establish that plaintiff failed to complain to any officials designated in the employer’s anti-discrimination policy, and further explaining that jury could believe plaintiff’s testimony that she complained, rather than defendants’ evidence that she did not).

In district court, XXXXXXX suggested that XXXXXXX acted unreasonably by not complaining to Human Resources or the Ethics Hotline, both of which are listed “options” for reporting harassment under XXXXXXX’s anti-harassment policy. A.867. Because the policy also specified that XXXXXXX could report harassment to senior management, and because XXXXXXX reported the harassment to Gu, the Area Manager, and to Caporusso, the Regional Director of Personal Training, a jury could find his choice was reasonable. The law does not require that harassment victims “go from manager to manager until they find someone who will address their complaints.” Gorzynski, 596 F.3d at 104-05; see also id. at 105 (adding that “an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s . . . harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser”).

In short, based on the record, a reasonable jury could find that XXXXXXX did not prove either element of the Faragher-Ellerth defense as a matter of law. Summary judgment on this proposed alternative basis should therefore be denied.

CONCLUSION

For the foregoing reasons, the judgment should be reversed in part and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street NE, 5th Floor

Washington, DC 20507

(202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation 2d Cir. R. 29.1(c) and 32.1(a)(4)(A) because it contains 5644 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). The brief also complies with the typeface and type-style requirements of Fed. R. App. P. 32(a)(5) and 32(a)(6) because it has been prepared using Microsoft Word 2016 in a proportionally spaced typeface, Times New Roman 14-point font.

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

Dated: June 5, 2019

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

[2] Because this is an appeal of a grant of summary judgment for defendant, the following facts are based on the record, with all reasonable inferences drawn in favor of the plaintiff. See, e.g., Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 16 (2d Cir. 2014).

[3] After denying that Harrison made jokes about numerous other employees’ names, Solano agreed that Harrison would joke with him and speak Spanish during a call. He was then asked, “So Mr. Harrison would poke fun at more people than just [XXXXXXX], is that correct?”; he answered “yes.” A.711-13. A jury could easily find that, by “more people,” Solano just meant himself.

[4] XXXXXXX did not explain what it meant by a “protected complaint.”