The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the agency charged by Congress to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents important questions regarding (1) what information individuals must provide in an EEOC charge of discrimination to support a subsequent judicial complaint and (2) how courts should analyze scenarios involving co-worker harassment when some, but not all, of the harassing conduct occurred before the employer knew or should have known about it. Because resolution of these issues will affect the EEOC’s enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a).

1. Did the district court err in striking certain factual allegations from Cooper’s Title VII sexual harassment claim where Cooper’s EEOC charge generally described the nature of the sexual harassment and the actors involved in the harassment, as is required by EEOC regulation?

2. Did the district court err in stating that even if a reasonable jury could find that an employer knew or should have known about co-worker harassment and failed to take prompt corrective action, a plaintiff may nonetheless be precluded from bringing her Title VII suit in court because too much harassing conduct predated the period of liability?

STATEMENT OF THE CASE

I. Statement of the Facts

Lisa Cooper worked at The Smithfield Packing Company’s meat processing plant in Tarheel, North Carolina, from December 1995 until her employment ended in July 2011. JA-359.[2] In January 2006, Cooper was promoted to second shift supervisor, where her immediate supervisor was Tommy Lowery, Superintendent. JA-116. Lowery worked in the same physical space as Cooper and although he had the authority to direct her daily assignments and evaluate her work performance, Lowery testified that he could not fire non-hourly employees like Cooper. JA-646, 657-58, 672.

Cooper testified at her deposition that Lowery sexually harassed her between January 2007 and July 2011. JA-487. Specifically, Cooper alleged that between 2007 and 2010, Lowery repeatedly “begg[ed Cooper] for sex,” “kept telling [Cooper] he loved [her],” said, “come here and give me a kiss,” and “told [her] he can do things to [her] that [her] husband can’t do.” JA-463-64, 487, 509. Lowery would stare at her often and, because his behavior was not “like a normal superintendent,” it drew attention from others and made Cooper so uncomfortable that she avoided walking near him. JA-488, 494, 501-02, 508. Beginning in 2007, Lowery frequently “brushed his penis” up against Cooper and, at times, he would go to great lengths to do so. JA-487-89. For example, Lowery walked by Cooper when it was not necessary, taking a route around the room that required him to squeeze into a small space to get near Cooper, and, in so doing, he would come up behind her rather than to her side and “brush his penis up against” Cooper’s backside. JA-488-92, 494-97. Cooper testified that from January 2010 forward, the touching continued and the comments became more hostile, with Lowery often calling her a “stupid bitch.” JA-512.

Cooper’s subordinate Brandon Moore stated that between 2009 and 2011, he witnessed Lowery making sexually suggestive and demeaning comments to Cooper and other female employees, and Lowery repeatedly accused Moore of having sex with Cooper. JA-871-73. Also, Lowery testified that he had sexual relationships with at least two subordinates. JA-633-34, 638, 709-10. Tammy Russ, Lowery’s immediate supervisor between 2000 and 2010, testified that Smithfield’s policy requires managers to report any romantic involvements with subordinates to Human Resources (“HR”) so that one of the parties may be reassigned to a different department, but that she only learned about one of Lowery’s relationships indirectly. JA-733-34, 740-42. Lowery did not report the relationships either to Russ or to HR and there is no evidence that either he or any subordinate was reassigned as a result. JA-647, 59, 740-42.

Cooper testified that in 2011 she “had enough.” JA-513. As alleged in her Amended Complaint onward, and later detailed in a sworn declaration, Cooper stated that “in approximately April 2011” she reported to HR official Lynn Dove that she was being sexually harassed by Lowery. JA-867. Moore corroborated Cooper’s statement, stating in a sworn declaration that he accompanied Cooper when she lodged the complaint with Dove. JA-873. There is no evidence that HR took any action on Cooper’s harassment complaint. After complaining to Dove, Cooper stated, “the harassment by Mr. Lowery increased. I believe Mr. Lowery was aware that I had complained to Human Resources because he referenced my internal complaints when he threatened to kill me if I caused him to lose his job.” JA-867.

Cooper testified that shortly before her employment ended, an incident occurred when she was working alone in the office on a Sunday. JA-479. Lowery appeared unexpectedly, approached her, told her he wanted to have sex with her, and grabbed her, requiring her to “literally f[ight] him off,” at which point she fell while trying to run away from him and out of the office. JA-480-82.

On July 18, 2011, after Lowery harassed her in front of multiple co-workers, Cooper complained to Lowery’s supervisors, who directed her to HR manager Jamie Pope. JA-460-67, 469. Cooper told Pope about Lowery’s ongoing verbal and physical sexual harassment, including his threat to kill her and his physical assault, requiring her to fight off Lowery and run out of the office; Pope asked Cooper to memorialize her complaint in writing. JA-461, 473-75, 478, 482-83. Cooper testified that during the meeting she asked Pope if she could be transferred immediately. JA-475-76.

According to Cooper, Pope said that while the matter was being investigated, he would place her on the second shift and Lowery on the first. JA-474-77. Cooper objected, telling Pope that she would still have to share an office with Lowery and that was unacceptable because Lowery threatened her life. (“I value my life. If somebody tell[s] you they’re going to kill you, . . . I take that seriously.”).[3] Id. Despite Cooper’s objections, Pope did not offer any alternative. JA-475.

Cooper complied with Pope’s request for a written statement. JA-473. Her statement, dated July 18, 2011, says in part, “Every time I refuse his sexual offers, he threatens to get me fired. I have kept this problem to myself for a while, fearing that my life is in danger. Tommy said to me, ‘I will kill you.’” JA-878. Shortly thereafter, Cooper submitted a one-page note with two dates—July 19 and July 20, 2011—stating that she resigned. JA-880.

On December 21, 2011, Cooper filed her EEOC charge. JA-164. In relevant part, Cooper alleged discrimination based on sex, stating that she “was the victim of constant sexual harassment on the part of Tommy Lowery,” Lowery “would frequently tell [her] that he wanted to be with [her] and that he loved [her] . . . [and] would on at least a weekly basis brush up against [her] sexually,” Lowery “had power over [her] in that he ran the office and would do as he pleased,” and the constant harassment continued until Cooper “could no longer tolerate that sexual harassment.” Id. She then brought suit under Title VII alleging, in relevant part, sexual harassment. JA-10-18.

As would become significant later in the litigation, in Cooper’s original complaint, filed on July 11, 2013, she alleged facts reflecting that she reported Lowery’s harassment to HR at least once prior to July 2011. JA-13. In her Amended Complaint, filed on August 28, 2013, Cooper stated that this initial report occurred in “approximately April 2011,” although she recounted reporting to Pope, not Dove. JA-26. She reiterated the April date and the report to Pope in her Second, Third, and Fourth Amended Complaints. JA-55; JA-61; JA-72; JA-93. At Cooper’s deposition, taken on May 17, 2016, she was not directly asked nor did she volunteer information about any meeting with HR other than the one in July 2011. JA-453-55. On September 24, 2016, Cooper executed a sworn declaration supplementing her deposition testimony in which she recounted the April 2011 conversation with Dove. JA-867.

II. District Court’s Decisions

After dismissing without prejudice Cooper’s sexual harassment claims in the Complaint and the First Amended Complaint (JA-37), the court granted defendant’s motion to strike factual portions of the Second Amended Complaint, agreeing with Smithfield that “they are not relevant to Cooper’s sexual harassment claim.” JA-65-67. The court then granted in part and denied in part Smithfield’s motion to dismiss the Third Amended Complaint, again directing Cooper to remove several factual assertions supporting her sexual harassment claim. JA-86-88. This time, the court held that because the allegations in the EEOC charge “act to limit the scope of a subsequent complaint,” only the factual allegations in the charge supporting the statement in the charge that Cooper was “the victim of ‘constant sexual harassment’ from Lowery while employed by the defendant” were properly before the court. JA-84-85 (citing Chacko v. Patuxent Inst., 429 F.3d 505, 508-09 (4th Cir. 2005)).

Specifically, the court ruled that “any allegations that Lowery threatened her life, that he was watching her on a daily basis, or that he threatened her employment must be stricken from the record” because Cooper does not “allege that she acquiesced to Lowery’s threats, which would be a requirement of a quid-pro-quo arrangement.” Id. The court also excluded what it termed “comments made exclusively about the plaintiff’s husband separate and apart from the sexual harassment.” JA-86.

On December 1, 2016, the district court granted Smithfield’s summary judgment motion based on Cooper’s Fourth Amended Complaint. The court held that Cooper “failed to satisfy her prima facie burden for establishing a basis for imputing liability to Smithfield.” JA-888. After concluding that Lowery was a co-worker for purposes of Title VII, the court held that the record “is devoid of evidence establishing that Smithfield knew or should have known about Lowery’s alleged sexual harassment until July 18, 2011, the day before Plaintiff resigned.” JA-891.

In reaching this conclusion, the court “disregard[ed]” Cooper’s declaration. JA-895. Because, according to the court, Cooper’s statements in the declaration that she notified HR of the harassment in April 2011 “contradict[ed]” her earlier deposition testimony and interrogatory responses “which establishes that her first and only complaint to Smithfield management took place on July 18, 2011,” the “sham affidavit doctrine applies.” JA-894-96. The court also held that Lowery’s “alleged threats to kill [Cooper] cannot be considered by this court because they were never properly before this court,” as they were not set forth in and therefore “exceeded the scope of” the charge. JA-894.

The court also held that, even if Cooper can demonstrate that she notified management of the harassment in April 2011, Cooper cannot demonstrate negligence because she “allowed the conduct to go on for over four years before making a complaint.” JA-891 (emphasis in original). According to the court, “[t]his inordinate delay is unreasonable and inconsistent with a victim’s obligation under Title VII to promptly inform the employer when a problem exists,” and, therefore, “Plaintiff has failed to meet her burden of establishing that Smithfield was negligent.” Id.

ARGUMENT

I. The district court erred in refusing to consider any factual allegations of sexual harassment not explicitly set forth in Cooper’s EEOC charge, even though EEOC’s regulations require only a general description of allegations in the charge.

In partially dismissing the Third Amended Complaint and in granting Smithfield’s motion for summary judgment, the district court refused to consider some of the facts comprising Cooper’s sexual harassment claim because “they exceeded the scope of Plaintiff’s charge of discrimination.” JA-84-86, 894. In both respects, the court erred.

Title VII imposes no pre-suit requirements on an individual seeking judicial relief besides filing a charge with the Commission. With respect to the content of a charge, Title VII provides only that “[c]harges shall be in writing under oath or affirmation.” 42 U.S.C. § 2000e-5(b). The statute then expressly leaves further details to the EEOC. It states that charges shall “be in such form as the Commission requires.” Id.; see also EEOC v. Shell Oil Co., 466 U.S. 54, 67 (1984) (Title VII “prescribes only minimal requirements pertaining to the form and content of charges of discrimination”).

By regulation, the Commission has set out the level of detail required in a charge. See 29 C.F.R. § 1601.12. As relevant here, that provision states that “[e]ach charge should contain . . . [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). The regulation then specifies the information that a charge must contain—namely, that a charge will be sufficient “when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b) (emphasis added); see also Shell Oil, 466 U.S. at 62 n.11 (observing that Title VII does not require individuals to set out detailed facts in their charges); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (stating that a charge is adequate if it is “sufficiently precise to identify the parties, and to describe generally the action or practices complained of”) (internal citations and quotation marks omitted).

In Jones, the case the district court cited for the basic framework of Title VII’s charge-filing requirement, JA-85, this Court made clear that Title VII’s pre-suit requirements focus on whether a claim has been presented in the charge, not on whether each and every factual detail supporting the claim has been incorporated in the charge. As the Jones Court explained:

Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit. Thus, a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex.

Jones, 551 F.3d at 300 (internal citations and quotation marks omitted); see also id. at 301 (dismissing Jones’ age, sex, and race claims from complaint because “[t]he second charge alleged that Jones was being retaliated against because she had filed the first charge; it did not allege that she was discriminated against based on her age, sex, or race.”).

Cooper’s charge satisfies the criteria in 29 C.F.R. § 1601.12. It is in writing and she signed it under oath. Most importantly for present purposes, Cooper described generally the alleged violation, stating that “during her employment” she was subjected to “constant sexual harassment on the part of Tommy Lowery . . . . Mr. Lowery would frequently tell me that he wanted to be with me and that he loved me. Mr. Lowery on at least a weekly basis brush [sic] up against me sexually. Mr. Lowery had power over me in that he ran the office and would do as he pleased . . . . Finally, I could no longer take the sexual harassment.” JA-164. The charge makes clear, in other words, that the practices and actions complained of are Lowery’s “constant sexual harassment.” Id. This is a “clear and concise statement of the facts,” 29 C.F.R. § 1601.12(a)(3), and it plainly “describe[s] generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). It identifies the type of discrimination, sexual harassment, and the alleged harasser, Tommy Lowery. See Chacko, 429 F.3d at 508 (charge sufficient when it identifies the parties and describes generally the objectionable practices).

The district court’s directives ordering Cooper to strike from her subsequent amended complaints a series of factual allegations related to, but not explicitly set forth in, her sexual harassment charge are not supportable. In its order pertaining to the Third Amended Complaint and its summary judgment order, the court applies a standard that conflicts with, and improperly demands more detail than, the “general description” standard set forth in the EEOC’s regulations and in this Court’s case law. See JA-894 (“Lowery’s alleged threats to kill plaintiff cannot be considered by this court because . . . a Title VII lawsuit is to be based only on discrimination claims stated in the initial charge,”); JA-84-86 (examples of charge’s allegation of “constant sexual harassment” not specifically listed in the charge “fall outside the scope of the Charge . . . [and] must be stricken from the [complaint]”).

The district court cited no authority in either decision to support its conclusion that charges must contain such a level of detail, and indeed we are aware of none. Requiring such detail in a charge contravenes Title VII, the pertinent EEOC regulations, and the relevant case law, which establish that a charge need only describe the alleged discrimination in general terms. See Jones, 551 F.3d at 300; Chacko, 429 F.3d at 508; cf. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 406 (2008) (describing charge-filing standard as “permissive” and instructing that “[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies”).

Moreover, a ruling requiring this extreme level of specificity in a sexual harassment charge is particularly unsupportable. The Supreme Court has made clear that a hostile work environment claim is typically comprised of multiple discriminatory acts over an extended period of time. These acts, viewed together, constitute one claim or “unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“A hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’ 42 U.S.C. § 2000e–5(e)(1).”); cf. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (“Workplace conduct is not measured in isolation.”). The factual allegations struck from plaintiff’s complaint, just like those permitted to be retained, were all part of the same factual underpinnings supporting the same sexual harassment claim. The district court therefore erred in ruling that a charge must contain each factual allegation of sexual harassment before such allegations may be considered in a judicial proceeding.

In addition, the district court’s attempt to embrace some facts and discard others as “separate and apart from the sexual harassment” is flawed. The Supreme Court has made clear that hostile work environment cases are fact-intensive and context-specific. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (totality of the circumstances is the analytical touchstone of hostile work environment analyses); see also, e.g., Jennings v. Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (actionable hostile work environment “depends on a constellation of surrounding circumstances, expectations, and relationships” (internal citation omitted)). The court below impermissibly disaggregated Cooper’s hostile work environment evidence into different types of conduct (e.g., permitting comments about Cooper’s sexual relations with her husband but excluding comments where the harasser “berated [Cooper’s] spouse to [Cooper] on a regular basis”). JA-86.

This Court has criticized this divide-and-conquer approach, explaining that it fails to account for the totality of the circumstances affecting the victim. For example, in Conner v. Schrader-Bridgeport International, Inc., 227 F.3d 179, 193 (4th Cir. 2000), this Court held that the district court erred by separating evidence of sexually explicit harassment from other types of harassing conduct, including mocking the plaintiff, forcing her to mop the floor, singling her out for discipline, timing her with a stopwatch when she went to the bathroom, assigning her to machines at opposite ends of the factory, giving her less training than male colleagues, and threatening to fire her “if she ever mentioned the words ‘sexual harassment.’” According to this Court, when the district court stated that this was “merely evidence revealing the work environment to be unpleasant and sometimes cruel” and “at most bothersome incidents,” it “improperly disaggregat[ed] the incidents from the whole,” “adopted the view that these incidents were not discriminatory, and thus erred by failing to draw all reasonable inferences in favor of Ms. Conner.” Id. at 193-94 (internal quotation marks omitted).

Other courts have agreed. See, e.g., EEOC v. PVNF, L.L.C., 487 F.3d 790, 799 (10th Cir. 2007) (“By parsing out the various instances of harassment and characterizing them as gender-neutral, or not pervasive, CDM seeks to eschew the proper ‘totality of the circumstances’ test, which is the ‘touchstone’ of our analysis of hostile work environment claims.”); O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (“Courts should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment . . . .”).

Indeed, carving up the evidence in the manner that the court apparently did

-- drawing lines permitting harassment more explicitly sexual in nature and disallowing those that are not -- misapprehends the evil at which the statute is aimed. Title VII bars sexual harassment that creates a hostile or offensive environment for members of one sex, no matter its form, because it is an arbitrary barrier to sexual equality at the workplace. As the First Circuit has held, “where a plaintiff endures harassing conduct, although not explicitly sexual in nature, which undermines her ability to succeed at her job, those acts should be considered along with overtly sexually abusive conduct in assessing a hostile work environment claim.” O’Rourke, 235 F.3d at 729. See also, e.g., Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001) (“As the Supreme Court said in Oncale, neither ‘sex-specific and derogatory terms’ nor any evidence that ‘sexual desire’ motivated the harassment is needed to prove an actionable hostile work environment.”) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998)); Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999) (“[H]arassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.”).

Accordingly, the district court erred in striking from the Third Amended Complaint “any allegations that Lowery threatened [Cooper’s] life, that he was watching her on a daily basis, or that he threatened her employment,” as well as harassing comments Lowery made to Cooper about her husband. JA-85-86. The court similarly erred in refusing to consider this evidence on summary judgment on the grounds that it was not expressly mentioned in Cooper’s EEOC charge. Cooper’s charge was more than sufficient to support her Title VII claim based on the full scope of Lowery’s alleged conduct.

II. Title VII bars employers from negligently failing to discover co-worker harassment or failing to respond to a report of such harassment— irrespective of whether the harassing conduct also predated the period of liability.

The district court suggested that even where a plaintiff can otherwise establish a claim of workplace harassment for which the employer would be liable, that claim might be precluded by the plaintiff’s “delay” in complaining about the harassment. JA 891. According to the court, an employee is not only estopped from invoking events as component parts of a hostile work environment, but loses her Title VII protections entirely, if she withstands that environment too long before complaining. This ruling is erroneous.

This Court has held that, to establish a hostile work environment claim, a plaintiff must show that the harassing conduct was: “(1) unwelcome, (2) based on [plaintiff’s] gender . . . , (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to [the employer].” EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). In the context of co-worker harassment, “the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc). In construing this standard, this Court has held that “[k]nowledge of harassment can be imputed to an employer if a reasonable person, intent on complying with Title VII, would have known about the harassment... Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (internal quotations omitted).

The district court here found that Cooper had no evidence supporting a finding of liability against Smithfield for two principal reasons, both of which were erroneous. First, the court refused to consider Cooper’s statements in her sworn declaration that she complained to Smithfield as early as April 2011, when she made her complaint to HR that resulted in Lowery’s death threat. According to the court, at least in this respect, Cooper’s declaration was a “sham affidavit” “filed in an attempt to manufacture an issue of fact” because it contradicted her deposition testimony that she complained formally to HR on July 18, 2011. JA-894-95.

The district court erred in applying the “sham affidavit” doctrine to Cooper’s declaration for several reasons. As described above, Cooper identified April 2011 as the first time she complained to HR about Lowery as early as August 28, 2013, in her Amended Complaint—two years and nine months before her deposition on May 17, 2016. JA-26. While, of course, allegations in a complaint are not themselves evidence, they reveal that Cooper did not simply invent this allegation after her deposition in order to manufacture an issue of fact, as the court suggested. The allegations also reveal that Smithfield was on notice of Cooper’s allegation that she complained to HR in April, yet its attorneys chose not to ask Cooper about the complaint.

Moreover, while the district court faulted Cooper for not identifying Dove in her Rule 26(a)(1) initial disclosures, Cooper’s allegations in all four amended complaints reflect that, at that time, she remembered (or misremembered) that she had complained to Pope, not Dove, in April 2011. See JA-26; JA-55; JA-61; JA-72; JA-93. It follows that Cooper failed to identify Dove at the time of her initial disclosures because she did not remember complaining to Dove at that time, and it was reasonable for her to clarify the record with her statement once she remembered otherwise.

This Court has also emphasized that the “sham affidavit” doctrine applies only when there is a “bona fide inconsistency” between the testimony and the subsequent affidavit. See, e.g., Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001) (“Of course, for the [sham affidavit rule] to apply, there must be a bona fide inconsistency.”) (reversing district court’s application of “sham affidavit” doctrine because “[w]e discern no inconsistency between Spriggs’s affidavit and his deposition testimony”); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“The entire content of the affidavit is conclusory, it does not set forth facts of which the plaintiff has personal knowledge and it does not give specific facts, but only generalities. If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony is correct.”) (internal citations and quotation marks omitted).

There was no such inconsistency here. At her deposition, Cooper was never asked—nor did she affirmatively state—that July 18th was the only time she spoke with an HR official about sexual harassment; rather, the July 18th report was simply the only report she described. For example, at one point in her deposition, she was asked about her “July 2011” response to an interrogatory asking Cooper to “identify[] any internal complaint of harassment or discrimination made.” JA-454-55. Cooper was not asked if this was her only complaint to HR. Rather, Cooper was only asked to clarify, “So is that what you were just telling me about?” JA-455. And Cooper’s answers and the follow-up questions hone in on the events of July 18. Nothing in the colloquy suggests July 18 was the only date on which she reported Lowery’s harassment to HR.

Finally, Cooper’s declaration (and her allegations in her complaints) were not the only evidence in the record that she had complained to HR in April 2011. Fellow employee Brandon Moore stated in a sworn declaration that he “was with Lisa when she verbally complained about Tommy and reported to Lynn Dove that she needed to get away from Tommy because of the sexual harassment.”[4] JA-873. Therefore, the district court erred in refusing to consider on summary judgment Cooper’s declaration stating that she complained about Lowery’s harassment to HR prior to July 18, 2011.

Second, the court stated, even “assuming Plaintiff’s allegations are true,” the fact that she had been experiencing sexual harassment for “over four years before she made a complaint to Smithfield management” was an “inordinate delay” that was “unreasonable and inconsistent with a victim’s obligation under Title VII to promptly inform the employer when a problem exists.” JA-891. According to the court, “Smithfield cannot be said to be negligent when Plaintiff allowed the conduct to go on for over four years before making a complaint.” The lower court’s reasoning here turns Title VII and the existing case law on its head.[5]

As discussed above, employer liability for coworker harassment requires a finding of negligence; the employer cannot be liable for harassing conduct of which it neither knew nor should have known. E.g., Ocheltree, 335 F.3d at 333-34. But in a case involving prior harassing conduct for which the employer cannot be held liable because it lacked notice and was not otherwise negligent, the employer nonetheless remains potentially liable for subsequent harassment as to which it does have notice.

As the Supreme Court explained in Morgan, 536 U.S. at 115, “[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The ‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts.” (Emphasis added.) Moreover, the Morgan Court clarified, even in cases where alleged discrete acts of discrimination are time-barred and thus not actionable, Title VII does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Id. at 114.

As Morgan reflects, hostile work environment claims, by their very nature, extend over a period of time, sometimes a long time—they are both “repeated” and “cumulative.” The negligence standard for liability in coworker harassment cases reflects what both the Supreme Court and this Court have termed the “minimum standard for employer liability under Title VII,” ensuring that employers are only liable for such claims insofar as they either knew or should have known about them. Ocheltree, 335 F.3d at 334 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998)). But the negligence standard goes no further than that. It does not operate to immunize employers from liability for instances of actual negligence simply because there may have been other instances as to which they were not negligent. Such a rule would be nonsensical.

Further, it is counter-intuitive to punish Cooper for her ability to continue working successfully at Smithfield for years, notwithstanding the graphic and persistent nature of the harassment. Cooper’s endurance and stated commitment to Smithfield should inure to her benefit, not count against her in her ability to pursue a harassment claim. JA-478 (came in to work on Sunday despite working Monday through Saturday). See, e.g., Harris, 510 U.S. at 22 (observing that, “even without regard to . . . 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 race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality”); EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 330 (4th Cir. 2010) (“The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s.”). Therefore, the fact that the harassment had gone on for several years in this case before Cooper reported it had no bearing on whether Smithfield could be liable for harassment once she did report it, and it certainly did not totally bar Cooper from bringing a Title VII hostile work environment claim.

Nor does Matvia v. Bald Head Island Mgmt., Inc., the sole authority cited by the district court on this point, JA-891, support that proposition either. 259 F.3d 261, 269 (4th Cir. 2001). Matvia, a supervisory harassment case, was decided exclusively on whether the employer successfully mounted its Faragher/Ellerth affirmative defense, which requires the employer to show, in relevant part, that “plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.” 259 F.3d at 269 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), and Ellerth, 524 U.S. at 765). It was with respect to this prong of the affirmative defense that the Matvia Court held that, “[i]f Title VII’s prohibitions against sexual harassment are to be effective, employees must report improper behavior to company officials.” Id.

In the context of supervisory harassment, where vicarious liability would ordinarily attach absent the Faragher/Ellerth affirmative defense, the Matvia Court’s statement makes sense, because notice to the employer is presumed due to the supervisory status of the harasser. Thus, where a plaintiff delays unreasonably in reporting a supervisor’s improper behavior to company officials, the company could potentially be liable for a long period of harassing conduct that no one other than the harasser and the victim might have known about. But this concern has no applicability in the context of coworker harassment because the negligence standard does not impute knowledge to the employer. Therefore, the employer cannot be held liable for any harassing conduct of which it neither knew nor should have known, so there is no danger of mounting exposure to liability for unknown conduct. See generally Ellerth, 524 U.S. at 764-65.

Accordingly, the district court erred in this case by, first, repeatedly striking legitimate allegations of sexual harassment from Cooper’s complaints that were well within the scope of her EEOC charge. Later, the court refused to consider relevant evidence in the summary judgment record—including Lowery’s threats to kill Cooper for reporting him to HR—for the same reason. Then, the court refused to consider Cooper’s statement in her declaration that she had complained to HR in April 2011 based on its improper conclusion that this part of her affidavit was a “sham.” Finally, the court concluded that, because Cooper had not complained earlier about being harassed by Lowery, she was precluded from complaining about it at all, based on a rule devoid of legal support and contrary to Title VII’s most fundamental purposes.

CONCLUSION

For the reasons above, we urge this Court to reverse the district court’s judgment and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

s/Susan L. Starr

Susan L. Starr

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4727

susan.starr@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,150 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).

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s/Susan L. Starr

Attorney for the Equal Employment Opportunity Commission

Dated: March 27, 2017

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

[2] “JA-” refers to the plaintiff’s pagination in the Joint Appendix filed in this case.

[3] Cooper testified that, in addition to explicitly threatening to kill her, Lowery implicitly threatened to kill her when he told her he “had friends in high places” and that he “used to be a drug dealer.” JA-477-78. Cooper also testified that Lowery’s connections with drug dealers was widely known at Smithfield. JA-477. Lowery himself testified that in 1994 he was sentenced to ten years in prison after pleading guilty to drug trafficking. JA-613-15.

[4] Moore’s declaration was properly submitted to the court and nothing in the district court’s opinion suggests otherwise or explains its exclusion from the court’s consideration. Rather, the court exaggerates Cooper’s failure to mention her April 2011 meeting with Dove in her deposition, characterizing her deposition as “establish[ing] that the first and only complaint to Smithfield management took place on July 18, 2011,” and fails to recognize Moore’s statement that he accompanied Cooper to HR when she spoke with Dove. JA-873, 896.

[5] In light of the district court’s refusal to consider Cooper’s statement in her declaration that she had complained to HR in April 2011, we recognize that it is somewhat unclear what the court meant here—i.e., whether it was unreasonable for her to wait until 2011 generally to complain, or to wait until July 18 to complain, and then quit two days later. In our view, the court’s emphasis on “over four years” suggests the former interpretation, but insofar as the court may have meant the latter, we agree that Cooper would have a difficult time demonstrating Smithfield knew or should have known of Lowery’s sexual harassment of Cooper on that basis alone.