The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with the interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In determining whether plaintiff David Hansen (“Hansen”) adduced sufficient evidence to establish a triable hostile work environment claim under Title VII, the district court did not consider incidents of harassment that occurred more than 300 days before Hansen filed the administrative charge on which this lawsuit is based. The court reasoned that because Hansen had filed an earlier charge in which he could have alleged harassment, but did not, he failed to “promptly report and take action on discriminatory acts when they occur[red].” Appellant’s Appendix (“Aplt. App.”) at 770.

This appeal presents an important question about whether a court must, at summary judgment, consider all acts contributing to a hostile work environment, irrespective of whether an earlier charge filed by the same person could have alleged some of the acts but did not. Therefore, the EEOC offers its views to the Court. See Fed. R. App. P. 29(a).

In refusing to consider all related acts of sexual harassment alleged by Hansen as a single hostile work environment, did the district court err?

STATEMENT OF THE CASE

A. Statement of Facts

Hansen worked for the defendant, SkyWest Airlines (“SkyWest”), for over seven years, from 2003 to 2011. Aplt. App. at 012. He began in Salt Lake City and then transferred in December 2007 to work at the airport in Jackson, Wyoming. Id. at 551, 729, 733. The persons most involved in the events of this case, in addition to Hansen, were John Robinson and Lynn Katoa—both male employees of SkyWest in Jackson who, like Hansen, are gay. Id. at 734. Robinson became Hansen’s supervisor soon after Hansen arrived in Jackson, id., and Katoa worked in a supervisory capacity throughout the relevant time period. Id. at 071, 137.

There was record evidence that Hansen endured continuous acts of harassment for over three years, including unwanted sexual advances, coercion, and inappropriate physical contact by Robinson and Katoa. In particular, soon after Hansen arrived in Jackson, Robinson told him that if he “provide[d] sexual favors to Robinson, as Robinson had done for Katoa” he would be promoted. Id. at 734. A few months later, Katoa “rubbed his genitals against” Hansen’s back and asked, “Did that get you excited?” Id. at 311. Later in 2008, as part of a business trip to Denver, Katoa arranged for Hansen to share a hotel room with Robinson and himself, but Hansen requested a separate room. Id. at 551, 734. When Katoa learned this, he asked Hansen, “Why won’t you stay with us in the hotel room down in Denver? I don’t understand it. . . . Are you afraid?” Id. at 311-12.[2]

Then, in January 2009, at a SkyWest Christmas party, Robinson and Katoa asked Hansen to join them skinny-dipping in a hot tub, an invitation Hansen declined. Id. at 735. Four months later, on two different days in April 2009, Robinson rubbed his genitals against Hansen’s lower body in front of witnesses. Id. at 499-500, 735-36. Specifically, Susan Baratti, a co-worker, testified that she saw “John Robinson rubbing his front up against [Hansen’s] back . . . [a]t the ticket counter.” Id. at 619. Regina Moss, another co-worker, recounted seeing Robinson “c[o]me up behind [Hansen] and rub[ ] up against” him.” Id. at 681. When asked “[w]hat part of [Robinson’s] body touched [Hansen’s] body,” Moss replied, “[h]is unit, junk, whatever you want to call it, rubbed up against [Hansen’s] butt.” Id.

Soon thereafter, Hansen reported to Kathy Makasian, an HR official at SkyWest, that he “had been sexually harassed and badgered by Robinson.” Id. at 737. Hansen’s complaint to Makasian led to a meeting with two managers, Danny Luton and David Hyllested. Id. In that meeting, Luton—the Station Manager for SkyWest in Jackson—threatened to fire Hansen “on the spot,” “paper up [his] file,” and even sue him “if [he] didn’t drop the complaint.” Id. at 734, 737.

After SkyWest failed to take steps to halt the harassment, Hansen submitted an intake questionnaire to the Wyoming Fair Employment Program (“Wyoming FEP” or “FEP”), alleging that SkyWest engaged in, among other things, sex discrimination. Id. at 444-45. However, an employee of the FEP office informed Hansen that “he could not file a discrimination charge based on sex because it was a ‘sexual orientation’ claim,” which, according to the staffer, was not cognizable under anti-discrimination laws. Id. at 743. Based on this, Hansen omitted any mention of sexual harassment or sex discrimination from a charge of discrimination he filed in June 2009 with the FEP, and instead alleged only age and disability discrimination. Id. at 740-42.[3]

Four months after Hansen filed his charge, Robinson transferred to work in Seattle for eight months. Id. at 746. As the district court explained, Robinson “left Jackson because he and Lynn Katoa were no longer dating and he was still in love with Katoa and wanted to continue dating.” Id. During Robinson’s temporary assignment, Hansen experienced no sexual harassment. When Robinson returned, however, he again supervised Hansen and, in October 2010, he again rubbed his genitals against Hansen and said “I heard you bought a new home here. I would really like to come over and see your bedroom.” Id. at 747, 759. In response, Hansen sought to avoid working with Robinson, and received reassignment to another section of the Jackson airport, known as “the ramp area.” Id. at 747.

Despite the reassignment, Hansen could not escape sexual harassment. Rather, his co-workers at the ramp area subjected him “to sexual banter and commentary on a daily basis.” Id. In particular, Hansen testified that his “co[-]workers engaged in discussions involving men and women having sex and defecating on each other during the sex act.” Id. at 450. When Hansen reported his co-workers’ lewd commentary to SkyWest manager David Hyllested, Hyllested “told him that he needed to get back to work and quit worrying about them.” Id.

Then, in November or December of 2010, in reference to a gym membership Hansen and Katoa had both acquired, Katoa remarked to Hansen that he could “sexually be aggressive” or “sexually harass” Hansen at the gym with impunity, as it was off work premises. Id. at 760. Around the same time, Christine Shreve, a female supervisor, told Hansen that if he did not “pick up [her] supervisory shift,” she would “add to [his] sexual harassment problems.” Id. at 760-61.

Soon thereafter, in January 2011, Hansen got involved in an argument with a co-worker over changing tickets for passengers. Id. at 748. This led to a heated exchange and SkyWest terminated Hansen’s employment. Id. at 064-65. The events leading up to Hansen’s termination were investigated by SkyWest officials, including Katoa. Id. at 749. During the investigation, Katoa cornered Hansen in a doorway, “rubbed his clothed genitals against” him, and asked “if he was afraid[.]” Id.

SkyWest confirmed Hansen’s termination on February 11, 2011. Id. at 087. Hansen filed an internal grievance appealing the termination. Id. at 750. When that was unsuccessful, he filed a second charge of discrimination in August 2011, claiming sex discrimination and retaliation under Title VII and Wyoming law. Id. at 753-54. He, alleged, inter alia, that he was subjected to “unwelcome sexual harassment” by his “supervisor, John Robinson,” from May 1, 2008, to February 11, 2011, and that “[t]he acceptance or rejection of the harassment . . . was an express[ ] or implied condition to the receipt of a job benefit or cause [of] a tangible job detriment.” Id. at 753-54.

While Hansen’s 2011 charge was being investigated by the Wyoming FEP, he withdrew his 2009 charge, which was still pending. Id. at 742-43.[4] Meanwhile, the FEP’s investigation into the 2011 charge resulted in a finding of probable cause that Hansen had endured a hostile work environment at SkyWest. Id. at 605-14. After receiving a right-to-sue notice, Hansen filed suit, alleging, inter alia, a sex-based hostile work environment under Title VII. Id. at 021-022.

B. District Court’s Decision

After discovery, SkyWest sought summary judgment. Most importantly for present purposes, it advanced a statute of limitations defense, contending that Hansen could not include as part of his hostile work environment claim any act of sexual harassment occurring before October 13, 2010—300 days before his 2011 charge. Id. at 067-070. SkyWest theorized that because Hansen filed a charge in 2009 and could have alleged sexual harassment then, he was barred from including in his claim any events falling more than 300 days before he filed the 2011 charge. See id. at 070 (“To the extent a sexual harassment claim existed, Hansen should have (and presumably would have) asserted it in his 2009 charge either initially or as an amendment.”). SkyWest invoked no authority to support this proposition, but just asserted that “allowing an employee to double file in this matter would violate the most basic res judicata principles.” Id.

The district court adopted SkyWest’s argument, holding, in relevant part:

Hansen did not plead in his 2009 Charge discrimination on the basis of sex. . . . He did not amend his 2009 Charge to add a claim of sex discrimination and apparently chose not to pursue it further, instead electing to rely on his claims of discrimination on the basis of disability and age.

. . .

Not until August 2011 did Hansen deliberately elect to bring a Charge of Discrimination on the basis of sex. Having waited so long, the Court agrees . . . that Title VII is not intended to allow employees to dredge up old grievances; they must promptly report and take action on discriminatory acts when they occur. Hansen did not do so. Unlitigated bygones are bygones.

Id. at 770 (citing Duncan v. Manager, Dep’t of Safety, 397 F.3d 1300, 1308 (10th Cir. 2005)).

On this rationale, the district court declined to consider any act of harassment occurring more than 300 days before the 2011 charge. Id. at 776. The court then analyzed whether Hansen had evidence sufficient for a triable hostile work environment claim premised only on those events occurring between October 13, 2010, and February 11, 2011. Id. Describing such events as “few,” id., the district court found that the harassment was not sufficiently severe or pervasive to be actionable, and granted summary judgment to SkyWest. Id. at 778.

ARGUMENT

The District Court Erred in Failing to Consider All Related Acts of Sexual Harassment Alleged by Hansen as a Single Hostile Work Environment.

A. The District Court Erred in Relying on The Existence of an Earlier Charge of Discrimination to Conclude That Parts of Hansen’s Claim Were Time-Barred.

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), the Supreme Court stated that “[i]t does not matter, for purposes of the statute [of limitations], that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability.” Here, some, but not all, of the incidents on which Hansen premised his hostile work environment claim occurred more than 300 days before he filed his second charge of discrimination in August 2011.[5] Therefore, under Morgan, the district court should have identified the timely alleged acts and determined whether they were sufficiently related to earlier acts to constitute a single employment practice. See Duncan, 397 F.3d at 1309 (“Our first task . . . is to determine if there is a genuine issue whether the acts [the plaintiff] alleges are part of the same hostile work environment.”) (citing Morgan, 536 U.S. at 120).

Although the district court cited Morgan, it sidestepped this analysis, instead reasoning that because Hansen filed a 2009 charge and theoretically could have raised some of his harassment allegations then, he failed to “promptly report and take action on discriminatory acts when they occur[red].” See Aplt. App. at 770. The court’s novel ruling is erroneous. A plaintiff’s decision to file a charge in the middle of a series of harassing acts should not affect the analysis with respect to whether timely alleged acts of harassment are sufficiently related to earlier acts to constitute a single employment practice under Morgan.

Depending on the case, many factors might be relevant to the Morgan relatedness inquiry. This Court has recognized, for example, that “the type” of acts, their “frequency,” and their “perpetrator” may be relevant. Duncan, 397 F.3d at 1309. Other courts have identified the commonality of the environment in which the incidents took place and temporal continuity between the incidents as important considerations. See McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 78 (2d Cir. 2010). In some situations, an employer’s failure to intervene with remedial measures, despite repeated complaints of harassment, is sufficient to link various acts of harassment into a single employment practice. See, e.g., Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir. 2007) (“Isaacs . . . complained repeatedly . . . and she received the same response every time: one or another variation on ‘grin and bear it.’ . . . As long as the employee remains within a single chain of command, . . . there is only one employment practice, and all events may be considered[.]”). On the other hand, when an employer does step in with effective remedial measures, it might cut off liability in an ongoing harassment situation. See, e.g., Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 329 (5th Cir. 2009) (finding pre- and post-limitations period conduct related under Morgan, but nevertheless concluding that periods of harassment were severed by employer’s remedial actions). These decisions focus on the nature of the alleged acts, the context in which they occurred, and actions the employer did or did not take in response.

But until the district court did so here, no court had held that a plaintiff’s decision to file a charge in the middle of an ongoing hostile work environment is relevant, let alone dispositive, to determining whether episodes of harassment pre-dating that charge are legally distinct from those occurring thereafter. Nor would such a conclusion make sense, because it is the commonality of the harassing conduct, not a plaintiff’s extraneous acts—such as the filing of a charge—that ordinarily bears on whether a series of hostile acts are connected to one another. And this case is no exception, for Hansen’s 2009 charge did not distinguish, in any logical sense, the pre-June 2009 harassment from that which occurred later. Put simply, the 2009 charge is immaterial to the Morgan timeliness analysis.

In addition, the district court not only failed to conduct the proper inquiry under Morgan, it also ignored the principles this Court enunciated in Tademy v. Union Pacific Corp., 614 F.3d 1132 (10th Cir. 2008), concerning the preclusive effect of a prior charge. In that case, Tademy, a black male, faced a series of racially hostile incidents at work over a period of eight years. Id. at 1135-37. In the middle of this sequence of events, Tademy filed a charge alleging a racially hostile work environment. Id. at 1136-37. He received a right-to-sue letter for this charge, but before suing he met with a representative of his employer and agreed not to pursue a lawsuit if the company promised it would incorporate annual EEO training. Id. at 1137. Despite his employer’s promises, the harassment persisted, and Tademy filed a second charge, again alleging a hostile work environment. Id. at 1138. Once litigation arose, the employer argued that Tademy could not “include as part of the . . . Title VII claim any of the incidents that occurred before August 22, 2002, because he chose not to file suit after receiving his initial right-to-sue letter.” Id. at 1150. This Court rejected that argument, observing that “Title VII contains no language barring a plaintiff from presenting allegations in support of a hostile work environment claim that he had advanced in a prior EEOC complaint but chose[ ] not to litigate[,]” and concluding that Tademy could “raise the allegations of his first EEOC complaint in [his] hostile work environment claim.” Id. at 1151-52.

There is a difference here, of course, in that Hansen seeks to recover for different types of discrimination than he alleged in his first charge, whereas Tademy sought to reallege acts of harassment from his first charge in support of his hostile environment claim stemming from a second charge. But, if anything, this difference strengthens the argument that Hansen should be permitted to present evidence of events that pre-date October 13, 2010. Indeed, just as “Title VII contains no language barring a plaintiff from presenting allegations in support of a hostile work environment claim that he had advanced in a prior EEOC complaint but chose[ ] not to litigate[,]” id. at 1151, neither does the statute contain any language prohibiting a plaintiff from presenting allegations in support of a hostile work environment claim that are distinct from claims advanced in a prior EEOC complaint. See, e.g., Vitello v. Liturgy Training Publ’ns, 932 F. Supp. 1093, 1099 (N.D. Ill. 1996) (“While [plaintiff] was not permitted to reallege his first EEOC charge in his second EEOC charge, . . . he was permitted to bring his second EEOC charge alleging a different form of discrimination.”) (internal citations omitted). In other words, where, as here, at least one of the incidents contributing to a hostile environment claim is the subject of a timely charge, it makes no difference under Title VII that the individual also happened to file an earlier charge, on distinct grounds, in the middle of the ongoing violation.

Nor is there a policy justification for the district court’s decision to penalize Hansen for not raising the harassment claim in his 2009 charge. In Tademy, this Court recognized that “one of the goals of Title VII is to put an employer on notice of a violation prior to commencement of judicial proceedings [which] in turn serves to facilitate internal resolution of the issue[,]” and it found that “it [made] little sense to punish Mr. Tademy for trying to reach a non-litigious solution.” 614 F.3d at 1151 (internal citations and quotation marks omitted). Here, Hansen reported the sexual harassment to Makasian, Luton, and Hyllested before filing his 2009 charge. Although Hansen’s 2009 charge itself did not notify his employer of sexual harassment, he notified SkyWest by other means, and, like Tademy, he tried to reach a non-litigious solution. Hansen’s attempt at ending the harassment without litigation was negated when SkyWest responded with threats of retaliation and a failure to take corrective action. Thus, Hansen’s conduct was consistent with the policy goals of Title VII, and he should not be penalized for leaving a sex harassment allegation out of his 2009 charge.

In fact, it is particularly unfair to fault Hansen for this omission because he tried to allege sexual harassment in his 2009 charge —and would have—had the FEP official not discouraged him from doing so. According to the district court, the fact that an FEP official told Hansen he could not file a sex discrimination charge in 2009 cannot “give new life to claims arising out of events prior to October 13, 2010,” because “discrimination on the basis of sexual orientation or gender identity by private employers is not prohibited under either federal or state law[.]” Aplt. App. at 743-44. Whether or not this is an accurate statement of the law, the court’s rationale misses the point. Hansen need not “give new life” to events falling outside the statutory filing period. Rather, under Morgan, so long as “an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for purposes of determining liability.” 536 U.S. at 117.

Moreover, regardless of whether “sexual orientation” or “gender identity” are protected traits under state or federal law, the allegation Hansen sought to make against SkyWest in 2009 was not discrimination based on sexual orientation per se, but rather one of same-sex sexual harassment, which, by 2009, had long been recognized as squarely within the ambit of Title VII’s protections. See Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 82 (1998) (“[W]e conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII[.]”).

Thus, the FEP official’s advice was incorrect as a matter of law, and where, as here, an agency official misleads a complainant about the nature of his rights, courts have ruled that such conduct “should not redound to [an aggrieved individual’s] detriment[.]” White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 562 (5th Cir. 1978) (en banc); see also Jackson v. Richards Med. Co., 961 F.2d 575, 587 n.11 (6th Cir. 1992) (reasoning that plaintiff was entitled to rely on the EEOC’s assertion and should not be “penalized for the Commission’s mistakes”); Hicks v. ABT Assocs., Inc., 572 F.2d 960, 964-65 (3d Cir. 1978) (observing that, where the EEOC “fail[ed] . . . to follow the statute and its own regulations . . . , [t]he individual employee should not be penalized by the improper conduct of the Commission.”). This rule should apply with equal force here.[6]

It is also noteworthy that EEOC complainants often are not represented by attorneys, especially at the charge-filing stage. See, e.g., Love v. Pullman Co., 404 U.S. 522, 526-27 (1972) (noting that Title VII is a “statutory scheme in which laymen, unassisted by trained lawyers, initiate the process”).[7] The district court’s ruling—that parts of Hansen’s hostile work environment claim are time-barred because he filed an earlier charge in which he theoretically could have raised a harassment claim, but did not—imposes on charge-filers a level of sophistication that courts cannot reasonably expect of laypersons who might be unsure of when exactly to file a charge and what exactly to allege. In other words, the district court’s ruling, if affirmed, would be at odds with congressional intent. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123 (1988) (reaffirming that Congress intended Title VII charges to be filed by laypersons and rejecting charge-filing requirements that would unduly “confuse lay complainants”); see also Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970) (“We must ever be mindful that the provisions of Title VII were not designed for the sophisticated or the cognoscenti, but to protect . . . all employees and prospective employees. This protection must be extended to even the most unlettered and unsophisticated.”).

Nor is there case law authority for the district court’s conclusion that Hansen’s 2009 charge renders parts of his hostile environment claim time-barred. In discussing the significance of Hansen’s 2009 charge to the timeliness of his instant claim, the district court equated this case to Arabalo v. City of Denver, 625 F. App’x 851 (10th Cir. 2015) (unpublished), and Powell v. Express Credit Auto, Inc., No. 14-cv-1167-R, 2015 WL 1642137 (W.D. Okla. Apr. 13, 2015). Aplt. App. at 766, 768. However, those decisions are simply unhelpful in deciding the issue at hand. In Powell, the court dismissed a race-discrimination claim where the plaintiff “marked only the box labeled ‘Sex,’ and not the box labeled ‘Race’” in her charge. 2015 WL 1642137, at *1. Similarly, in Arabalo, the court barred the plaintiff from including in her hostile work environment claim an act of alleged rape by co-workers because she did not mention it in her charge, and it differed from her other allegations of sexual harassment to such an extent that it could not be considered part of a single “holistic” claim. 625 F. App’x at 860-61. Powell and Arabalo thus turned on whether the plaintiff had exhausted her administrative remedies as to particular allegations. Neither decision supports the holding here: that a plaintiff who files an age and disability charge first, and a sexual harassment charge second, cannot point to events that occurred more than 300 days before the second charge in order to establish a single, continuing hostile work environment claim.

Accordingly, the district court’s decision was misguided and unsupported by any authority. Because some of the alleged acts of harassment fell within 300 days of Hansen’s 2011 charge, and because this litigation stems from that charge, Hansen was entitled to an inquiry into whether the timely alleged acts were sufficiently similar to those falling outside the limitations period to constitute a single employment practice. In failing to perform this inquiry, the district court erred. See generally Baird v. Gotbaum, 662 F.3d 1246, 1251-52 (D.C. Cir. 2011) (“[T]he district court erred to the extent that it . . . fail[ed] to employ the Morgan analysis, including, of course, a determination of which acts exhibit the relationship necessary to be considered ‘part of the same actionable hostile work environment claim.’”).

B. Under The Correct Analysis, a Reasonable Jury Could Find That Hansen’s Allegations of Harassment Constituted a Single Employment Practice.

If the district court had applied the proper analysis as directed by Morgan, a jury could reasonably conclude that the acts of harassment alleged by Hansen in this case constituted a single hostile work environment. According to the district court, “[t]o determine whether all of the acts . . . are all part of the same hostile work environment, the Court looks to the type of acts, the frequency of the acts, and the perpetrator of the acts.” Aplt. App. at 757 (citing Morgan, 536 U.S. at 120).

Preliminarily, we note that the district court’s recitation of the Morgan factors was unduly restrictive, based on both Morgan itself and on this Court’s precedent. In the cited passage in Morgan, the Supreme Court merely observed that “[w]ith respect to Morgan’s hostile environment claim, the Court of Appeals concluded that the pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.” 536 U.S. at 120 (internal citation and quotation marks omitted). The Court did not enunciate any categorical rule about “type, frequency, and perpetrator” evidence, but only reiterated the factors the appellate court had identified as linking the harassing acts in Morgan’s particular case. Id. Moreover, in Tademy this Court explicitly rejected a per se requirement that incidents comprising a hostile work environment must always be linked by type, frequency, and perpetrator to be related under Morgan, and it noted that such a rule “would have troubling implications.” 614 F.3d at 1143.

Type, frequency, and perpetrator are non-exhaustive examples of factors to consider when determining whether a relationship exists between acts occurring within the filing period and those occurring earlier. These factors should not be rigidly applied to the exclusion of all others and, ultimately, the question is whether the record—viewed in light of the totality of the circumstances—supports a finding that a sufficient nexus exists to coalesce various hostile acts into a single hostile work environment. See, e.g., McCowan v. All Star Maint., Inc., 273 F.3d 917, 925 (10th Cir. 2001) (“We have repeatedly stated that in a case alleging a . . . hostile work environment, the existence of [] harassment must be determined in light of the record as a whole, and the trier of fact must examine the totality of the circumstances, including the context in which the alleged incidents occurred.”(internal citations and quotation marks omitted)); see also McGullam, 609 F.3d at 77 (stating that “courts [must] make an individualized assessment of whether incidents and episodes are related,” and noting that Morgan “does not limit the relevant criteria, or set out factors or prongs”).

In this case, there was more than adequate commonality between the acts of sexual harassment Hansen alleged to render them part of the same hostile work environment for Title VII purposes. Again, this Court’s decision in Tademy is instructive. There, Tademy endured at least seven discriminatory acts perpetrated by at least five individuals over the course of eight years. 614 F.3d at 1135-37.[8] These acts could reasonably be construed as a single hostile work environment, this Court held, because: “each was calculated to demean or intimidate African-American employees”; all of the harassment occurred in one facility; and even though the acts of harassment did not occur “on a daily basis,” the “number of incidents in the given timeframe [wa]s sufficient to constitute a [single] hostile work environment.” Id. at 1142-44.

Similar reasoning applies here. Just as the acts in Tademy “were calculated to demean or intimidate African-American[s],” those here all involved inappropriate sexual attention and coercion directed toward Hansen. Also, whereas there were five perpetrators in Tademy, only two principal harassers—Robinson and Katoa—were involved here. Thus, the harassment endured by Hansen was, if anything, more concentrated with respect to perpetrator than it was in Tademy. See also Semsroth v. City of Wichita, 304 F. App’x 707, 723 (10th Cir. 2008) (holding that acts involving four perpetrators “were part of the same unlawful employment practice,” as all “involve[d] the same supervisory officers”).[9] Moreover, with the exception of Robinson’s and Katoa’s invitation to join them skinny-dipping, which occurred at a SkyWest Christmas party, the acts alleged by Hansen occurred, as in Tademy, at a single location.[10] And, although the incidents here did not occur “on a daily basis,” Tademy, 614 F.3d at 1143, Hansen suffered at least eight acts of harassment in a period of less than four years, i.e., at a greater frequency than existed in Tademy. See id. (finding “the number of incidents in the given timespan”—seven incidents in eight years—“sufficient to constitute a [single] hostile environment”). Therefore, under the factors deemed relevant by this Court in determining whether acts of harassment are sufficiently related under Morgan, a reasonable jury could find a single hostile work environment here.

Also, it is not fatal to Hansen’s claim that he suffered no harassment during Robinson’s temporary assignment to work in Seattle. Indeed, in Morgan, the Supreme Court explicitly addressed whether a break in harassment precludes a plaintiff from relying on earlier events, and held that it did not, so long as the earlier events are related to harassment that occurred within the charge-filing period. 536 U.S. at 118. Specifically, the Court offered the following scenario: “Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400. . . . [I]t does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole.” Id. Thus, because the harassment pre-dating Robinson’s transfer to Seattle is similar to the harassment occurring after Robinson returned to Jackson, the temporal gap in the harassment does not preclude Hansen’s ability to establish that a single hostile work environment existed here.

And it is important to emphasize that Robinson’s transfer to Seattle was of his own volition. It is not the case that SkyWest intervened with remedial action to effectively sever the link between the periods of harassment. To the contrary, SkyWest belittled Hansen’s reports of harassment and even threatened him with retribution if he continued to complain. Therefore, to the extent this Court might consider an employer’s remedial action relevant to the Morgan relatedness inquiry, SkyWest did nothing to benefit from such a consideration here. See Vickers v. Powell, 493 F.3d 186, 199 (D.C. Cir. 2007) (faulting district court for relying on change in management as severing liability period under Morgan, because it was a “routine personnel action[ ],” not a measure intended by the employer to remedy harassment); see also Isaacs, 485 F.3d at 386 (holding that when an employee’s complaints of harassment are met with indifference, “there is only one employment practice, and all events may be considered”).

Finally, the precedent invoked by the district court does not support a contrary conclusion. Citing Duncan, the district court opined that “Title VII is not intended to allow employees to dredge up old grievances[.]” Aplt. App. at 770. Though it is somewhat unclear exactly what the court meant here, Duncan is in any event readily distinguishable because the alleged harassment there occurred over twenty years, involved different types of conduct by multiple individuals, and occurred as the plaintiff worked in seven different departments. 397 F.3d at 1304-09. By contrast, the time period in question here was less than four years; the harassment consistently involved sexual propositions and unwanted touching; there were just two main harassers; and all of the harassment occurred while Hansen worked in a single position at the Jackson airport. Thus, inasmuch as the district court’s decision rested on Duncan, its reliance was misplaced, and Tademy, not Duncan, should guide this Court’s decision on appeal.

CONCLUSION

For the foregoing reasons, the district court’s judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Philip M. Kovnat

PHILIP M. KOVNAT

ELIZABETH E. THERAN

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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s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

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

Dated: February 26, 2016

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s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

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

Dated: February 26, 2016

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

[2] Hansen also testified that once in November 2008, Brian Johansen, a SkyWest manager in Salt Lake City, tried to push him to the ground and said “down bitch.” Id. at 332-34.

[3] Hansen’s disability claims were related to a diagnosis of PTSD that he received before he began working for SkyWest. Id. at 731-32. The age discrimination allegation centered on Hansen’s belief that SkyWest passed him over for a promotion in favor of younger individuals. Id. at 742.

[4] Hansen executed a document entitled “Release/Withdrawal Without Benefit,” which stated that the 2009 charge “ha[d] been resolved to his satisfaction.” Id. at 746. Other than this document, the record does not explain Hansen’s reasons for withdrawing the 2009 charge.

[5] The acts within 300 days of the 2011 charge include: (1) Robinson rubbing his genitals against Hansen and asking to see his bedroom; (2) Katoa threatening Hansen with further harassment at the gym; (3) Shreve threatening to “add to [his] sexual harassment problems” if he did not pick up her supervisory shift; and (4) Katoa rubbing his genitals against Hansen in a doorway and asking if he “was afraid.”

[6] It is true, as the district court observed, that Hansen did not include in the record the 2009 FEP intake questionnaire, which would presumably provide documentary support for his testimony that he sought to allege sex discrimination then. Aplt. App. at 744. But this omission is forgivable given that Hansen had no reason to suspect that his 2009 allegations would have any relevance to the timeliness inquiry under Morgan. Indeed, it is only because the district court erroneously seized on Hansen’s first charge as dispositive to his instant hostile work environment claim that the 2009 intake questionnaire is worth discussing at all.

[7] Although the record is somewhat unclear on this point, it appears that Hansen was not represented by counsel when he filed his FEP charge in 2009. See Aplt. App. at 709 (Pretrial Order reflecting SkyWest’s admission that Hansen first retained counsel to represent him in this matter in 2010).

[8] The harassment in Tademy included: (1) seeing the word “nigger” etched into Tademy’s locker in 1996; (2) racist graffiti and cartoons in 1997 and 1998; (3) a co-worker referring to another black man as “F* * *ing Kunta Kinte” in 1999; (4) additional racist graffiti in 2000; (5) Tademy’s manager calling him “boy” in 2001; (6) a mass e-mail in 2002 to many of Tademy’s co-workers “admonishing them to ‘Keep an eye on the slaves’”; and (7) a “hangman’s noose prominently suspended from a large industrial wall clock” in 2003. Id.

[9] Even if a trier of fact were to find that the single act of harassment perpetrated by Brian Johansen was insufficiently related to Robinson’s and Katoa’s harassment to be part of the same employment practice, Hansen need not demonstrate that all of the offensive pre-limitations period conduct is sufficiently related to latter-day acts, so long as some of it is. See, e.g., Tademy, 614 F.3d at 1142-44 (finding that untimely and timely acts constituted a single hostile work environment even though some untimely acts were “qualitatively different” and thus could not be included as part of Tademy’s claim).

[10] Though Robinson’s and Katoa’s skinny-dipping invitation did not occur at the Jackson airport, this incident is still attributable to SkyWest because it was perpetrated by SkyWest supervisors at a SkyWest sanctioned event. Cf. Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 753 (10th Cir. 2014) (noting that “sexual assaults that take place off-site and outside of work hours can still qualify as actionable sex discrimination” (citing Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1267 (10th Cir. 2000))).