Congress charged the Equal Employment
Opportunity Commission (“EEOC” or “Commission”) with administering,
interpreting, and enforcing Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). In
this Title VII case, the district court
granted summary judgment for Umpqua Bank, concluding that the sexual harassment
its employee Jennifer Christian endured was neither severe nor pervasive, and
that, in any event, the bank could not be held liable for the harassment, which
was perpetrated by a customer. The court also concluded that Christian’s claim
that Umpqua Bank retaliated against her because of her complaints about the
harassment failed because, among other things, those complaints did not qualify
as activity opposing an unlawful employment practice.
This appeal raises important questions about when
harassment is severe or pervasive, when an employer may be liable for customer harassment,
and when complaints about harassment constitute protected opposition activity. Because
the resolution of these issues may affect the EEOC’s ability to enforce Title VII, the Commission respectfully offers
its views to the Court. See Fed. R.
App. P. 29(a)(2).
1. Did the district court err in concluding, on
summary judgment, that the harassment Christian endured was neither severe nor
pervasive, where Christian repeatedly rebuffed a customer’s advances, but he continued
to send her flowers and letters of a personal nature, monitored her whereabouts
for months, and caused Christian’s colleagues to be concerned for her safety?
2. Did the district court err in holding, on
summary judgment, that Christian could not impute liability for the customer’s harassment
to her employer, where the harassment continued well after Christian told her
supervisor that she found it frightening, the supervisor did not take steps to
stop it, and the supervisor let the customer open an account over Christian’s
objection?
3. In analyzing Christian’s retaliation claim,
did the district court err in concluding that Christian’s complaints to her
superiors about the customer’s harassment did not constitute protected
opposition activity?
It is “an unlawful employment practice” under Title VII “for an employer . . . to
discriminate against any individual with respect to [the] terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). It is well settled
that a plaintiff may establish a Title VII
violation by proving that “discrimination based on sex has created a hostile or
abusive work environment.” Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). “For sexual harassment
to be actionable, it must be sufficiently severe or pervasive to alter the
conditions of [the victim’s] employment and create an abusive working
environment.” Id. at 67 (internal
quotation marks omitted). An employer, however, will not be liable under Title VII for sexual harassment by
non-employees, such as customers, unless the employer has “ratifie[d] or
acquiesce[d] in the harassment by not taking immediate and/or corrective
actions when it knew or should have known of the conduct.” Freitag v. Ayers, 468 F.3d 528, 538 (9th
Cir. 2006) (internal quotation marks omitted); see also 29 C.F.R. § 1604.11(e).
In a separate provision known as Title VII’s
“antiretaliation provision,” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006), Title VII makes it “an unlawful employment
practice for an employer to discriminate against [an] employee[]” because,
among other things, the employee “has opposed any practice made an unlawful
employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). This Court has explained
that in order for an employee to establish that she engaged in protected
opposition to an employment practice, she “does not need to prove that the
employment practice at issue was in fact unlawful under Title VII”; instead, the employee “must only
show that she had a reasonable belief that the employment practice she
protested was prohibited under Title VII.”
Trent v. Valley Elec. Ass’n, 41
F.3d 524, 526 (9th Cir. 1994) (internal quotation marks omitted).
Plaintiff Jennifer Christian was an associate at
the downtown branch of Defendant Umpqua Bank (“Umpqua” or “the bank”) in
Vancouver, Washington. Excerpts of Record (“ER”) 26-27. In late 2013, Christian
opened a new checking account for a customer named Brad.
ER 88, 100. Christian had to obtain
approval to open the account from the store manager for the Vancouver branch,
Chris Sanseri, because Brad did not have a permanent address and was instead
“possibly homeless[] [and] living in a shelter.” ER 89-90.
In late 2013 or early 2014, Christian received
two or three handwritten notes signed by Brad on “scraps” of “ripped-up paper.”
ER 100-01, 543. Christian believed that
Brad “came in [to the Vancouver branch] and left [the notes] for [her].” ER 101. The first note stated that Christian
was beautiful. ER 543. The second or third
note reiterated that Christian was beautiful and asked her for a date. Id.
Christian felt “concerned” after receiving the
notes. Id.; ER 101. Brad’s practice of expressing romantic
interest via “handwritten scraps of paper” struck her as behavior more
appropriate for “an elementary school-aged child” than an adult. ER 543. Also, Christian believed that she had
not encouraged Brad’s advances or otherwise expressed any romantic interest
towards him. Id. After receiving
the notes, Christian encountered Brad at the Vancouver branch, and he asked her
if she had received them. Id.
Christian responded that she did not want to go on a date with him. Id.
Anna Mishuk, an Umpqua employee who supervised
Christian’s work, learned about the notes and expressed concern, warning
Christian to “watch out . . . that it doesn’t escalate” with Brad. ER 101, 102-03. Soon after Christian received
the notes, two employees at another local Umpqua branch, the Esther Short Park
branch, told Christian that Brad had visited that branch “several times . . .
asking them over and over . . . how he was going to get a date with
[Christian].” ER 372-73. One of those
employees “warned [Christian] about [her] safety.” ER 373.
Around the first week of February 2014,
Christian received a letter from Brad at work. ER
497. It was a full-page letter, handwritten on notebook paper. Id. In the letter, Brad stated that
Christian was the most beautiful girl he had ever seen, that she was his dream
girl, that he wanted to go on a date with her, and that he hoped Christian
would like her surprise. Id.
Christian found the letter “disturbing” because it was “affectionate and
personal,” although she “barely knew the person sending it.” Id. Christian shared the letter with store
manager Sanseri and other Umpqua employees, including one employee who opined
to Christian and Sanseri that Brad could be dangerous. ER 497-98.
Then, on Valentine’s Day, Brad sent flowers
with a card to Christian at work. ER 498.
Christian found this overture “threatening . . . [b]ecause [she didn’t] know
[Brad] on a personal level, and [because] he had [previously] sent [a] letter[]
and notes” she found “inappropriate.” ER
97. Christian told Sanseri about the flowers and explained that Brad’s behavior
frightened her. ER 498.
Sanseri said he would prohibit Brad from
visiting the Vancouver branch. Id. Sanseri
did not, however, communicate this decision to Brad. ER 392. Sanseri told Christian that someone
should contact Brad to inform him that Christian was not interested in further
advances. ER 498. He urged Christian to
call Brad. Id. Christian was not
comfortable speaking with Brad but agreed because it was apparent to her that
Sanseri did not want to call Brad. Id.
She accordingly phoned Brad and told him that his conduct was inappropriate and
that she wanted no further contact. ER 108,
499.
Nonetheless, days later, Christian got another
full-page, handwritten letter from Brad. ER
499. The letter, which Christian found “ominous” and “disturbing,” reiterated
that Christian was Brad’s dream girl and stated that he and Christian were soul
mates and were meant to be together. Id.;
ER 107, 324-25. Soon after receiving
Brad’s second letter, Christian showed it to Sanseri, Mishuk, and others
working at Umpqua. ER 107. Christian then did
not see Brad at the Vancouver branch for a number of months. ER 110-12. She learned, however, that Brad
“badger[ed]” associates at the Esther Short Park branch during this period “about
how he was going to get a date with” her. ER
112-13.
In September 2014, Christian attended a
community event for homeless individuals as an Umpqua representative. ER 27, 115. Brad was at the event; he sat on a
nearby wall and stared in her direction for 20 to 30 minutes. ER 115-17. Christian told other bank employees
at the event that she was afraid of Brad. ER
117, 499.
Within days of the community event, Brad
returned to the Vancouver branch and asked Sanseri if he could open another
account. ER 119-21, 500. Sanseri directed
Christian to open the account. ER 121,
500. Christian declined, explaining that Brad was the customer whom Sanseri had
agreed to bar from the Vancouver branch due to inappropriate conduct. ER 121-22, 500. Instead of asking Brad to
leave, Sanseri directed a different employee to open Brad’s new account. ER 122, 500. During the account-opening
process, which took about two hours, Brad was a few feet away from Christian’s work
station, and he continuously glanced at her. ER
123, 500. Umpqua later acknowledged that Sanseri had “forgot[ten]” his promise
to Christian that he would bar Brad from entering the Vancouver branch. ER 518.
Just a few days later, Christian saw Brad
again when he visited the Vancouver branch for about 45 minutes. ER 127-28, 500. Brad did not appear to conduct
banking business; instead, he remained in the lobby and stared at Christian
from afar. ER 129-30, 500. After this
episode, Christian complained to several Umpqua managers about Brad’s conduct
and Sanseri’s failure to bar him from entering the Vancouver branch. ER 500-01. From one of those conversations,
Christian learned that Umpqua could easily close Brad’s account and restrict
him from returning to the bank by pursuing a “no trespassing order.” ER 501. Yet Umpqua did not take immediate
steps to prohibit Brad from the Vancouver branch. ER 146-47.
Christian was ill the following week, and
Sanseri and another manager contacted her to ask when she would return to work.
ER 144-46, 501. Sanseri told Christian
that she could “hide in the break room” if Brad returned to the Vancouver
branch. ER 147. At a meeting a few days
later, Sanseri and other managers again told Christian to “hide in the break
room” if she encountered Brad. ER 501. The
managers also suggested she transfer to another branch. ER 502. Christian agreed to a transfer because
Umpqua had not taken steps to bar Brad from the Vancouver branch. Id.
After Christian’s transfer, on October 6, Brad
returned to the Vancouver branch. ER 271. Sanseri
told Brad that Umpqua had closed his account and that he was “no longer
welcome” at any Umpqua branch. Id.
According to Christian, the account was actually closed a few weeks later. ER 155-56.
Christian filed suit against Umpqua under Title VII, alleging that she was subjected to
sexual harassment and that Umpqua retaliated against her for complaining about
the harassment. ER 14, 21. The district
court granted the bank summary judgment on each claim. ER 5, 25.
The district court rejected Christian’s
hostile work environment claim for two independent reasons. First, the court
determined that a jury could not reasonably deem Brad’s conduct severe or
pervasive. ER 19. In assessing the severity
and pervasiveness of Brad’s conduct, the court focused on a “single incident”:
Brad’s September 2014 visit to the Vancouver branch to open a new account. Id. “Without more,” the court concluded,
that incident was “not sufficient to constitute a hostile workplace.” Id. The court acknowledged that Christian
alleged several other incidents (although the court omitted others, including
Brad’s inquiries about Christian at the Esther Short Park branch). See ER 18-19. The court dismissed those incidents,
however, stating that Christian “did not have any direct, personal interactions
with [Brad] on . . . those occasions.” ER
19. The court also noted that “seven months elapsed between” the Valentine’s
Day flower delivery and Christian’s September 2014 encounters with Brad. Id.
Second, the district court concluded that even
if Brad’s conduct was severe or pervasive, Umpqua was not liable for the harassment.
ER 20-21. The court based this conclusion
on its determination that Umpqua “immediately responded to [Christian’s]
concerns” when it was “advised of the incidents involving [Brad].” ER 20.
In granting summary judgment on Christian’s
retaliation claim, the court first found that Christian could not demonstrate
that she engaged in protected opposition activity when she complained to Umpqua
managers about Brad’s conduct and Umpqua’s failure to remedy that conduct. ER 22-23. The court reasoned that Christian’s
complaints were not protected because the court “ha[d] [already] concluded”
that Brad’s “conduct . . . cannot be imputed to [Umpqua].” ER 23. The court also rejected Christian’s
retaliation claim on two additional grounds—that Christian did not identify any
materially adverse employment actions and that she failed to establish a causal
link between her complaints and the employment actions in question. ER 23-25.
To constitute a violation of Title VII, sexual harassment must be “severe
or pervasive enough to create an objectively hostile or abusive work
environment.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)). As the Supreme Court has explained, “the objective severity
of harassment should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering ‘all the circumstances.’” Id. (quoting Harris, 510 U.S. at 23). Here, because Christian
is female, this “reasonable-victim” standard encompasses conduct that “a
reasonable woman would consider sufficiently severe or pervasive” because “[a]
complete understanding of the victim’s view requires . . . an analysis of the
different perspectives of men and women.” Ellison
v. Brady, 924 F.2d 872, 878-79 (9th Cir. 1991); see also Fuller v. Idaho Dep’t of Corr., 865 F.3d
1154, 1161 (9th Cir. 2017).
Under the reasonable-victim standard, conduct
may be “classifie[d] . . . as unlawful sexual harassment even
when harassers do not realize that their conduct creates a hostile working
environment.” Ellison, 924 F.2d at
880. The Commission’s guidelines underscore this point, explaining that
sex-based conduct violates Title VII when,
among other things, it “has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive working environment.” 29
C.F.R. § 1604.11(a)(3) (emphasis added).
The district court erred in ruling that no reasonable
jury could conclude that Brad’s conduct was objectively severe or pervasive. ER 19. This case is analogous to Ellison, where the plaintiff alleged
harassment by a co-worker who, among other things, asked the plaintiff to join
him for lunch and a drink (invitations the plaintiff rebuffed), gave the
plaintiff a note stating that he “cried over [her] last night,” and mailed the
plaintiff a typed letter that described “[w]atching” the plaintiff and
expressed a strong romantic connection, even though they had “never even talked
together[] alone.” 924 F.2d at 873-74.
This Court held that, even if the co-worker only intended to make romantic
overtures towards the plaintiff, a reasonable woman could have considered the
co-worker’s conduct “sufficiently severe and pervasive to alter a condition of
employment and create an abusive working environment.” Id. at 880.
As in Ellison,
a reasonable woman in Christian’s position could feel “shocked,” “frightened,”
and “upset” after receiving “bizarre” notes scrawled on scraps of paper and
“long, passionate, disturbing letter[s]” from “a person she barely kn[ows]”
(i.e., Brad, a customer whom she assisted once). Id. at 880, 884; see ER 97, 100-01, 497-98. Therefore, here,
as in Ellison, Christian reasonably
could have concluded that she “had no way of knowing what [Brad] would do
next.” 924 F.2d at 880.
In addition, a jury could consider other
individuals’ assessments of Brad’s conduct as evidence that Christian’s
reaction was well founded rather than reflecting “the idiosyncratic concerns of
the rare hyper-sensitive employee.” Id.
at 879. For example, Sanseri initially deemed Brad’s conduct sufficiently
threatening to justify prohibiting Brad from entering the Vancouver branch. See
ER 498; cf. Ellison, 924 F.2d at 880 (noting that
supervisor’s response to alleged harassment “suggest[ed] that [the supervisor
also] did not consider the conduct trivial”). Other colleagues also found
Brad’s conduct threatening. See, e.g., ER 101 (Christian’s colleague warned her about
letting interactions with Brad “escalate”); ER
373 (Christian’s co-worker from another branch expressed concern for her
safety).
Moreover, Brad’s conduct should be assessed
“in the context of his stalking” conduct. EEOC
v. Costco Wholesale Corp., 903 F.3d 618, 626 (7th Cir. 2018); see also Crowley v. L.L. Bean, Inc., 303 F.3d 387,
397-401 (1st Cir. 2002) (stalking conduct can create an actionable hostile work
environment under Title VII); Frazier v. Delco Elecs. Corp., 263 F.3d
663, 668 (7th Cir. 2001) (same).
Here, a jury could reasonably conclude that
Brad engaged in stalking behavior by, among other things, repeatedly sending
Christian unsolicited notes and letters of a personal and sexual nature, making
unwanted advances towards Christian (including persistently asking her for
dates and sending flowers), appearing at Christian’s workplace on multiple
occasions, repeatedly watching her from afar, and attempting to gather
information about her by questioning employees at the Esther Short Park branch.
See, e.g., ER 100-04, 372-74,
497-98; see also Sharon G. Smith et al., Ctrs. for Disease Control &
Prevention, National Intimate Partner & Sexual Violence Survey: 2015
Data Brief—Updated Release 5 (Nov.
2018), https://www.cdc.gov/violenceprevention/
pdf/2015data-brief508.pdf (stalking behavior may include “[u]nwanted”
communications, including “cards, letters, [or] flowers,” “[w]atching or
following from a distance,” “showing up in places[] such as the victim’s . . .
workplace”). A reasonable woman in Christian’s position could find Brad’s
pursuit especially troubling because she repeatedly told him that she did not
want to date him. See ER 497,
499, 543, 545; cf. Costco, 903 F.3d
at 626 (emphasizing that a harasser who stalked an employee “continued [his]
dogged pursuit” even after management told him to avoid the employee); see
also EEOC v. Prospect Airport Servs., Inc.,
621 F.3d 991, 1000 (9th Cir. 2010) (harasser “would not leave [employee] alone,
despite his repeated clear rejections of her overtures”).
Courts regularly cite evidence of watching,
monitoring, staring, and similar behavior as examples of conduct that may
contribute to a hostile work environment. See, e.g., Royal v. CCC & R Tres Arboles, L.L.C.,
736 F.3d 396, 398-99, 401-03 (5th Cir. 2013) (holding reasonable jury could
conclude harassment was objectively hostile based on, inter alia,
evidence that the alleged harassers “hovered” over the plaintiff, and that one
harasser sat near the plaintiff while visibly aroused and engaged in a
“stare-down” with her); Vera v. McHugh,
622 F.3d 17, 27-28 (1st Cir. 2010) (citing plaintiff’s account that her
supervisor stared at her in a “sexual way” in summarizing evidence of hostile
work environment); Billings v. Town of
Grafton, 515 F.3d 39, 49-51 (1st Cir. 2008) (concluding that a jury could
find objectively offensive harassment where the plaintiff alleged that her male
supervisor often stared at her breasts); see also Hernandez v. Fairfax Cty., 719 F. App’x
184, 186, 187-88 (4th Cir. 2018) (concluding that a jury could reasonably find
that the alleged harasser’s conduct was severe or pervasive based in part on
evidence that he monitored and tracked the plaintiff’s activities and
movements).
Although a reasonable jury could conclude
that, as a whole, Brad’s behavior was objectively offensive, the district court
focused on a “single incident” that it deemed “not sufficient to constitute a
hostile workplace”—Brad’s September 2014 visit to the Vancouver branch to open
a new account. ER 19. The court appeared
to focus on this single incident based on two incorrect determinations.
First, the district court apparently
disregarded several episodes—such as the notes, the letters, the flowers,
Brad’s appearance at the community event, and Brad’s visit to the bank during
which he stared at Christian from the lobby for 45 minutes, see supra pp.
4-7—because Christian “did not have any direct, personal interactions with”
Brad on those occasions. ER 19. But even
though Christian did not see Brad in connection with some of these events, and
even though he did not speak to her on other occasions when he was observing
her, a jury could nonetheless properly find that Brad’s behavior reasonably
appeared threatening to Christian. See supra pp. 11-14 (citing decisions
recognizing that such conduct may contribute to a hostile work environment). As
this Court has said, “[o]ffensive comments do not all need to be made directly
to an employee for a work environment to be considered hostile.” Davis v. Team Elec. Co., 520 F.3d 1080,
1095 (9th Cir. 2008); cf. Hawkins v.
Anheuser-Busch, Inc., 517 F.3d 321, 336 (6th Cir. 2008) (“[T]he factfinder
may consider similar acts of harassment of which a plaintiff becomes aware . . .
, even if the harassing acts were directed at others or occurred outside of the
plaintiff’s presence.”).
Supporting this conclusion, personal
interactions are not a precondition to obtaining a protection order for “stalking
conduct” under state law, nor are such interactions necessary to convict an
individual of the state crime of “stalking.” See, e.g., Wash. Rev. Code Ann. § 7.92.020(c) (under
state civil protection-order statute, “[s]talking conduct” includes “repeated
or continuing contacts, attempts to contact, monitoring, tracking, [or] keeping
under observation” when certain other requirements are satisfied); id. § 9A.46.110(1)(a) & (6)(b) (state
crime of “[s]talking” includes “repeatedly and deliberately appear[ing] at [a]
person’s . . . place of employment, business, or any other location to maintain
visual or physical proximity to the person” when certain other requirements are
satisfied).
Second, the district court was also mistaken to
the extent that it concluded that the temporal gap between the incidents
occurring in and before February 2014, and incidents occurring in September
2014, meant that Brad’s conduct was not severe or pervasive. See ER 19. All of the incidents involved the same
type of conduct (observing Christian, seeking her out) and were perpetrated by
the same individual (Brad), and therefore the conduct can be considered “part
of the same actionable hostile work environment claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 120-21 (2002); see also id. at
115, 118. Moreover, a jury could find that a seven-month gap between periods of
harassment is not sufficiently long to dilute the cumulative effect of the
harassment as a whole. See Aulicino v.
N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 84 (2d Cir. 2009) (reversing
grant of summary judgment to employer on harassment claim despite a 26-month
hiatus between “two discrete periods of more intense harassment”); see
generally Morgan, 536 U.S. at 115
(explaining that hostile work environment claims “are based on the cumulative
effect of individual acts”). In any event, the district court ignored evidence
in the record that Brad’s harassment did not entirely cease during this period:
between February and September 2014, Christian learned that Brad had been “badger[ing]”
associates at the Esther Short Park branch about how he was going to get a date
with her. ER 112-13.
This Court has long recognized that an employer
may be liable for third-party harassment, including sexual harassment by a
customer. See, e.g., Little v.
Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002). An employer
is “liable for harassing conduct by non-employees ‘where the employer either
ratifies or acquiesces in the harassment by not taking immediate and/or
corrective actions when it knew or should have known of the conduct.’” Id. (quoting Folkerson v. Circus Circus Enters., Inc.,
107 F.3d 754, 756 (9th Cir. 1997)); see also 29 C.F.R. § 1604.11(e) (EEOC guidelines)
(similar).
The employer’s response to third-party harassment
must be “reasonably calculated to end the [conduct].” Nichols v. Azteca Rest. Enters., Inc., 256
F.3d 864, 875 (9th Cir. 2001) (citations omitted). This Court “measure[s]”
whether an employer’s remedial action was “effective” “by the twin purposes of
ending the current harassment and deterring future harassment—by the same
offender or others.” Fuller v. City of
Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995); see also Ellison, 924 F.2d at 882 (explaining that
a “remedy’s ability to persuade potential harassers to refrain from unlawful
conduct” is a factor in assessing the adequacy of the employer’s response).
“When the employer undertakes no remedy, or where the remedy does not end the
current harassment and deter future harassment, liability attaches for both the
past harassment and any future harassment.” Nichols,
256 F.3d at 875-76.
Here, a jury could properly find that Umpqua
ratified or acquiesced in Brad’s harassment because its response was not
“reasonably calculated to end the harassment.” Id. at 875. It is true, as the district
court noted, that in October 2014, Umpqua transferred Christian to another
branch, closed Brad’s account, and instructed him not to return to any Umpqua
branches. See ER 20. Still, a jury
could reasonably find that Umpqua’s response to Brad’s conduct was inadequate
before the bank took those actions. See Nichols,
256 F.3d at 876 (concluding that “[a]lthough [an employer] took some action in
response to [an employee’s harassment] complaint,” its “remedy fell short”).
The district court concluded that Umpqua’s
earlier responses to Brad’s conduct were adequate because Sanseri “decided” in
February 2014 that Brad “would not be allowed to come back in the bank” and
that Brad “should be told it was inappropriate to send flowers.” ER 20. The court ignored, however, several
respects in which this remedy was insufficient.
Most importantly, even though Sanseri
“decided” in February 2014 to bar Brad from the Vancouver branch, ER 20, he took no steps to implement that
decision, see ER 392. Under this
Court’s precedent, Umpqua’s “inaction” cannot “fairly be said to qualify as a
remedy reasonably calculated to end the harassment.” Fuller, 47 F.3d at 1529 (internal
quotation marks omitted).
In addition, although Sanseri decided in
February 2014 that Brad should be directed not to contact Christian, Sanseri
pressured Christian to communicate this message to Brad rather than relaying it
himself. See ER 498. But having an
employee contact her harasser conflicts with the principle that “the victim of
sexual harassment should not be punished for the conduct of the harasser.” Ellison, 924 F.2d at 882; see also Nichols, 256 F.3d at 875-76 (noting it is
inappropriate to place “virtually all of [an employer’s] remedial burden on the
victimized employee”). Such contact was particularly problematic here because,
to individuals engaged in stalking activity, “[a]ny kind of response on the
part of the victim, no matter how negative, can be construed as a sign that she
is really interested.” Jane E. Brody, Personal
Health; Do’s and Don’ts for Thwarting Stalker, N.Y. Times, Aug. 25, 1998 (noting that experts recommend that the victim
should “tell the [harasser] that [she] want[s] nothing to do with him” “[o]nce
and only once,” as Christian did prior to the phone call she made at Sanseri’s
behest, see ER 543).
A jury could reasonably conclude that, in
having Christian contact Brad, Umpqua abdicated its “duty to express[] strong
disapproval of sexual harassment.” Fuller,
47 F.3d at 1529 (internal quotation marks omitted); see also Prospect, 621 F.3d at 1001 (citing
manager’s “fail[ure] even to tell [the harasser] to stop” as evidence that
might contribute to a jury finding that the employer’s response was
inadequate); Nichols, 256 F.3d at
876 (noting that the employer “did not demand that the unwelcome conduct
cease”). In any event, “Title VII requires
more than a mere request to refrain from discriminatory conduct.” Ellison, 924 F.2d at 882; see also Reynaga v. Roseburg Forest Prods., 847
F.3d 678, 690 (9th Cir. 2017).
Additionally, a jury could reasonably conclude
that Christian’s phone call was not an effective remedy because it did not end
Brad’s harassment. Quite to the contrary, Brad sent Christian a page-long
letter just days after she phoned him, see ER 499, he continued to inquire about
Christian at the Esther Short Park branch between February and September 2014, see
ER 112-13, and he renewed contact with
Christian in September 2014, see ER
115, 119-123. See also Reynaga, 847
F.3d at 690 (emphasizing that harassment continued after management met with
harasser in explaining why a jury could deem the employer’s response
ineffective).
In analyzing Umpqua’s response to Brad’s
conduct, the district court also ignored the fact that when Brad returned to
the Vancouver branch in September 2014, Sanseri allowed Brad to open a new
account and directed Christian to wait in the break room. See ER 122-23, 147. After that incident, Umpqua
maintained that Christian could hide in the break room when Brad visited the
Vancouver branch, once again backtracking on its commitment to bar Brad from
the premises. See ER 501. But, as
noted above, harassment must be remedied “through actions targeted at the harasser,
not the victim,” Fuller, 47 F.3d at
1529 (internal quotation marks omitted), and an effective response should not
leave the victim worse off, Anderson v.
CRST Int’l, Inc., 685 F. App’x 524, 526-27 (9th Cir. 2017); see also
Ellison, 924 F.2d at 882 (victim of
sexual harassment should not have to work in less desirable location as a
result of employer’s remedy for sexual harassment); Steiner v. Showboat Operating Co., 25 F.3d
1459, 1464 (9th Cir. 1994); Guess v.
Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (“A remedial
measure that makes the victim of sexual harassment worse off is ineffective per
se.”).
Similarly, a jury could deem Umpqua’s transfer
of Christian an inadequate response to Brad’s conduct because it “targeted at
[Christian], . . . the victim,” Fuller,
47 F.3d at 1529, and left her worse off, Anderson,
685 F. App’x at 527. Although the district court correctly noted that Christian
requested the transfer, ER 20, she did so only
after Umpqua failed to implement other remedies that may have let her remain at
the Vancouver branch, see ER 502.
Title VII
prohibits employers from retaliating against employees for “oppos[ing] any
practice” made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). Here, Christian alleged
that Umpqua retaliated against her for complaining to it about Brad’s
harassment and the bank’s inadequate response to the harassment. See ER 22-23. The district court rejected her
retaliation claim, concluding, among other things, that Christian’s complaints
did not qualify as “opposition” activity protected by the statute. ER 23. Under the court’s view of the statute, it
would have been entirely lawful for the bank to fire Christian for bringing her
concerns to its attention.
The district court erred. The court reasoned
that Christian’s complaints about Brad’s conduct and the bank’s response to
that conduct did not qualify as protected “opposition” activity because, in the
court’s view, Christian had not established that liability for Brad’s conduct
could be imputed to Umpqua. ER 22-23. But
to show that a complaint is protected opposition for purposes of 42 U.S.C. § 2000e-3(a), it is well established
that “a plaintiff does not need to prove that the employment practice [about
which the employee complained] was in fact unlawful under Title VII.” Trent, 41 F.3d at 526. To the contrary,
the employee need only demonstrate that she had a “reasonable belief” that the
conduct violated Title VII. Id. (relying on Sias v. City Demonstration Agency, 588
F.2d 692, 695 (9th Cir. 1978)). The district court did not mention, much less
correctly apply, this “reasonable-belief” standard.
Applying the “reasonable-belief” standard to
workplace harassment complaints is particularly important because it
beneficially “encourage[s] employees to report harassing conduct before it
becomes severe or pervasive.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998); see also EEOC
Enforcement Guidance on Retaliation and Related Issues, 2016 WL 4688886, at *10 (Aug. 25, 2016) (“EEOC
Guidance”). In addition, an employee who delays reporting harassment by a
co-worker or third party may risk forfeiting a hostile work environment claim
because she cannot ultimately establish that her employer knew of the
harassment or was negligent in responding to it. See Swinton v. Potomac Corp., 270 F.3d 794,
803 (9th Cir. 2001). Similarly, where an employee alleges harassment by a
supervisor, any delay in reporting the harassment could be used against her to
show that she failed to take advantage of the employer’s mechanisms for
preventing and correcting sexual harassment. See Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 282 (4th Cir. 2015) (en banc).
As the EEOC’s guidance explains, it is
therefore imperative that complaints to employers that an actionable hostile
work environment may be “in progress” qualify as protected “opposition”
activity. EEOC Guidance, 2016 WL
4688886, at *10 (internal quotation marks omitted). Otherwise, “an employee
would be in a catch-22”: she can report harassment early (risking retaliation
for complaining about the harassment), or she can wait (risking further harm
and forfeiture of any remedy for the underlying harassment). Id.; see also Crawford v. Metro. Gov’t of Nashville &
Davidson Cty., Tenn., 555 U.S. 271, 279 (2009) (noting that by holding that
certain conduct is protected opposition activity, the Court avoided placing
employees in a similar “catch-22”).
Moreover, categorically barring claims
alleging retaliation for opposing harassment whenever a court later concludes
that the harassing conduct cannot be imputed to the employer would lead to
absurd results. For example, if an employee reported a severe incident of co-worker
or customer harassment (such as a sexual assault), and the employer took prompt
and effective corrective action, summary judgment for the employer might be
warranted on a harassment claim. See, e.g., Hales v. Casey’s Mktg. Co., 886 F.3d 730,
735 (8th Cir. 2018). Yet, if that same employer fired the employee because of
her complaint, her inability to impute liability should not preclude a
retaliation claim.
This Court has addressed the “reasonable-belief”
standard in the context of third-party or customer harassment, and its
decisions confirm that Christian met that standard here. In Trent, for instance, the plaintiff
attended a work-mandated safety seminar where an outside trainer hired by her
employer subjected her to “foul language” and “a series of sexually offensive
references.” 41 F.3d at 525. The plaintiff
complained to her employer about the trainer’s conduct, and she was fired. Id. In discussing whether the plaintiff’s
complaint constituted protected opposition, this Court reaffirmed that the
plaintiff “need only show that she had a reasonable belief” that being
“subjected to a series of sexually offensive remarks at a [work-mandated]
seminar” violated Title VII. Id. at 526-27 (emphasis added). The Court
held that the plaintiff was “justified in believing that Title VII would protect her from offensive
remarks she endured while attending [a] meeting” that her employer “obligated
[her] to attend,” regardless of whether the employer was in fact liable for the
trainer’s offensive behavior. Id. at
527.
Similarly, in Little, the plaintiff socialized with a
potential client at the behest of her supervisor. See 301 F.3d at 964. After the plaintiff had
dinner and drinks with the potential client, he raped her. Id. She reported the rape to her company president,
who reduced her pay and discharged her. Id.
at 965. This Court explained that the plaintiff “could have reasonably
believed that, in reporting the rape to [her employer], she was opposing an
unlawful employment practice.” Id.
at 969 (citing Moyo v. Gomez, 40
F.3d 982, 985 (9th Cir. 1994)). “Given [the plaintiff’s] belief that her
relationship with [the potential client] was strictly business, and that she
met with him because it was part of her job,” the court concluded, her “belief
that [her employer] was required to take action in response to [the] assault”
was “eminently reasonable.” Id. at
969-70.
Likewise, here, Christian could have
reasonably believed that, in complaining to Umpqua about Brad’s conduct and
Sanseri’s inadequate response to that conduct, she was opposing an unlawful
employment practice. Much like the plaintiffs in Trent and Little, Christian interacted with her
harasser because it was an unavoidable part of her job and her supervisor urged
her to do so. Like the plaintiffs in those cases, moreover, Christian reported
Brad’s frightening and disturbing sexually charged behavior to her employer so
that the employer could stop that behavior. In other words, Christian
reasonably believed that Title VII would protect
her from Brad’s behavior, and her complaints to Umpqua about it were accordingly
protected opposition.
In concluding otherwise, the district court cited
Folkerson, 107 F.3d at 755-56, see
ER 23, but that case does not control
here. Although Folkerson also
involved customer harassment, there, the plaintiff’s purported “opposition” was
to react to a patron’s unwanted touching by “reach[ing] up and hit[ting] the
patron in the mouth.” 107 F.3d at 755. The
analysis in Folkerson rested on
this Court’s decision in Silver v. KCA,
Inc., 586 F.2d 138 (9th Cir. 1978), an analogous case in which the
plaintiff’s would-be “opposition” was not directed at her employer, but at a
harassing co-worker. See Folkerson,
107 F.3d at 755. The holding of Silver,
as reiterated in Folkerson, is that,
to be protected, “opposition must be directed at an unlawful employment
practice of an employer, not an act of discrimination by a private individual.”
Id. (quoting Silver, 586 F.2d at 141).
Here, however, Christian not only rebuffed
Brad’s advances to Brad personally, she also complained of those advances to
her Umpqua managers. ER 152, 500-01.
Because these complaints were plainly directed at an allegedly unlawful employment
practice (Umpqua’s failure to effectively remedy Brad’s harassment), any
reliance by the district court on the Folkerson/Silver line of
cases was misplaced. See Trent, 41
F.3d at 526 (concluding employee’s complaint to her employer about outside
trainer’s offensive conduct was protected opposition and distinguishing Silver, which the Court noted concerned a
protest “directed solely to the employee who made the offensive remark”).
Moreover, in Folkerson,
the plaintiff “failed to show any facts which would indicate that [her
employer] in any way ratified or acquiesced in the patron’s alleged
sexual harassment.” 107 F.3d at 756
(emphasis added). Similarly, in Silver,
the plaintiff did not even “argue . . . that [the co-worker’s racially
discriminatory] remark [could] be imputed” to her employer. 586 F.2d at 141. Here, by contrast, Christian
not only argued that Brad’s conduct could be imputed to Umpqua, she also offered
several uncontested facts to support that contention. It is undisputed, for instance,
that: (1) Sanseri decided in February 2014 that Brad’s conduct was
sufficiently threatening to bar him from entering the Vancouver branch, see
ER 498, but he took no immediate steps to
implement that decision, see ER 392;
(2) Sanseri pressured Christian to rebuff Brad’s advances directly, see ER 498; and (3) Brad’s threatening conduct continued
after Sanseri failed to fulfill his promise to restrict Brad from the branch, see
ER 128-29, 499-500. As explained in
Section I(B), such facts would permit a reasonable jury to find that Umpqua
ratified or acquiesced in Brad’s conduct. At a bare minimum, however, it was
reasonable for Christian to believe this was so. See Trent, 41 F.3d at 526 (finding no need to “delve
into . . . whether” a non-employee’s conduct could be imputed to the employer
because a plaintiff “must only show that she had a ‘reasonable belief’” of
employer liability).
The EEOC urges this Court to
reverse the district court’s grant of summary judgment to Umpqua and to remand 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/Philip M. Kovnat
ANNE W. KING
PHILIP M. KOVNAT
Attorneys
Equal
Employment
Opportunity
Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4769
philip.kovnat@eeoc.gov
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