Supplemental Certificate of Interested Persons

Johnson v. Pride Industries, Inc., No. 19-50173

The undersigned counsel of record certifies that, in addition to the persons and entities listed in the briefs of the Appellant and Appellee, the following listed persons and entities as described in the fourth sentence of 5th Cir. Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

Gail S. Coleman (EEOC Attorney)

Equal Employment Opportunity Commission (amicus curiae)

Jennifer S. Goldstein (EEOC Associate General Counsel)

James L. Lee (EEOC Deputy General Counsel)

Elizabeth E. Theran (EEOC Assistant General Counsel)

s/ Gail S. Coleman

Attorney of Record for Equal Employment Opportunity Commission

Table of Contents

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

Statement of Interest................................................................................... 1

Statement of the Issues............................................................................... 2

Statement of the Case................................................................................. 3

A. Statement of Facts............................................................................ 3

B. Summary Judgment Order................................................................ 7

C. Denial of Motion to Alter or Amend Judgment.............................. 10

Summary of Argument............................................................................. 11

Argument................................................................................................. 13

A. The district court erred in holding that Johnson could not show

severe or pervasive race-based harassment................................ 13

B. The district court correctly held that Johnson satisfied the pre-suit requirements for his constructive discharge claim notwithstanding his failure to file a new EEOC charge........................................ 20

Conclusion............................................................................................... 24

Certificate of Service

Certificate of Compliance

Table of Authorities

Cases

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996)......... 20

Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990).......................... 20

Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006)......................................... 16

Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473 (5th Cir. 1991)............. 22

Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263 (5th Cir. 1998)................ 20

Cavalier v. Clearlake Rehab. Hosp., Inc.,

306 F. App’x 104 (5th Cir. 2009)........................................................ 16-17

Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247 (6th Cir. 2004).. 24

Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994)................. 16

Duplan v. City of N.Y., 888 F.3d 612 (2d Cir. 2018)........................... 22, 24

EEOC v. Shell Oil Co., 466 U.S. 54 (1984).............................................. 21

EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007).............. 14, 17

Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019)................................... 9, 21

Gardner v. CLC of Pascagoula, LLC, 915 F.3d 320 (5th Cir. 2019)......... 13

Gupta v. E. Tex. State Univ.,

654 F.2d 411 (5th Cir. Unit A Aug. 1981)................................. 9, 20-22, 24

Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999)..................................... 19

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)....................................... 13

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999)........................... 19

Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006).......................................... 18

John v. State of La. (Bd. of Trs. for State Colls. & Univs.),

757 F.2d 698 (5th Cir. 1985)...................................................................... 3

Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887 (7th Cir. 2018)................................................................................................................. 14

Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009)............. 21, 22, 23

Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010).......................... 18

Keiser v. Coliseum Props., Inc., 614 F.2d 406 (5th Cir. 1980).................... 3

Lounds v. Lincare, Inc., 812 F.3d 1208 (10th Cir. 2015).......................... 18

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015)............................... 21

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).................................. 23

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)........ 12, 22-24

Roy v. Correct Care Sols., LLC, 914 F.3d 52 (1st Cir. 2019).................... 19

Simmons-Myers v. Caesars Entm’t Corp.,

515 F. App’x 269 (5th Cir. 2013).................................................... 9, 10, 22

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)................. 14

Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008).................. 16

Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997).......................................... 15

Waldo v. Consumers Energy Co., 726 F.3d 802 (6th Cir. 2013)............... 18

Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982)...................... 14

Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000).................................. 14

Wedow v. City of Kan. City, 442 F.3d 661 (8th Cir. 2006)........................ 23

Statute and Rules

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

§ 2000e-2(a)(1)............................................................................... 13

§ 2000e-5(b)................................................................................... 21

§ 2000e-5(e)(1)............................................................................... 20

Fed. R. App. P. 29(a).................................................................................. 2

Fed. R. Civ. P. 56....................................................................................... 3

Fed. R. Civ. P. 59(e)................................................................................. 10

5th Cir. R. 28.2.1......................................................................................... i

Other Authority

EEOC Compl. Man. § 2-IV, Timeliness, 2009 WL 2966756 (Aug. 6, 2009)................................................................................................................. 24

SpanishDict, https://www.spanishdict.com (last visited June 17, 2019)...... 5

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Appellant Michael Johnson alleges that he endured a hostile work environment because of his race. The district court held that Johnson could not show severe or pervasive race-based harassment even though another employee repeatedly called him the Spanish-language equivalent of the n-word, repeatedly addressed him with another word that could reasonably be construed as a racial slur, and engaged in other harassment that was not explicitly discriminatory but that may well have been infused with racial animus. The EEOC disagrees with the district court’s application of the “severe or pervasive” standard and believes that a reasonable jury could find a hostile work environment in violation of Title VII.

Johnson also alleged that he was constructively discharged in retaliation for his complaints of discrimination. The district court held that Johnson had satisfied administrative prerequisites to suit for his constructive discharge claim even though he had not filed a separate EEOC charge, because he alleged that the sole reason for his constructive discharge was his filing of the original charge. In anticipation of the possibility that Pride Industries may challenge this ruling on appeal, the EEOC wishes to explain why it believes the district court properly allowed the constructive discharge claim to proceed.

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

Statement of the Issues[1]

1. Could a jury find that Pride Industries subjected Johnson to severe or pervasive race-based harassment where another employee repeatedly called him the Spanish-language equivalent of the n-word, repeatedly addressed him with another word that could reasonably be construed as a racial slur, and engaged in other harassment that was not explicitly discriminatory but that may well have been infused with racial animus?

2. Did the district court correctly hold that Johnson satisfied the pre-suit requirements for his constructive discharge claim notwithstanding his failure to file a new EEOC charge, because he alleged that retaliation for the existing charge was the sole reason for his constructive discharge?

Statement of the Case

A. Statement of Facts[2]

Michael Johnson was a carpenter for Pride Industries, a non-profit entity that employs individuals with disabilities and provides them with meaningful work in the manufacturing and servicing fields. (R.17-2 at 1-2.) Johnson helped to provide facilities maintenance for the U.S. Army at Fort Bliss. (R.17-2 at 1.) At least for part of his employment, he was the only African American carpenter in his workplace. (R.17-1 at 58; R.20-2 at 2.) Juan Palomares, the alleged ringleader in harassing Johnson, mainly supervised employees in a different workgroup but sometimes filled in for Johnson’s supervisor. (R.17-1 at 38, 49.)

Johnson repeatedly heard Palomares call him a “pinche mayate.” (R.17-1 at 55-60, 155, 161.) He knew from his wife that “pinche mayate” translates into English as “fucking n***r.” (R.17-1 at 170.) The parties do not dispute this translation.

One time, for example, Palomares was upset about something that had happened at a cement job where Johnson had been a lead employee. Palomares was “talking trash” about Johnson to Johnson’s supervisor and employee Lalo Carrasco when Johnson came and sat down. Palomares switched to Spanish, which Johnson does not speak, said the word “cemento,” and then said “pinche mayate.” (R.17-1 at 55-59.) Another time, Johnson overheard Palomares say “pinche mayate” at a lunch table. A friend who was at the table later apologized to Johnson for Palomares’s use of the word. (R.17-1 at 160-61.)

Johnson testified that he also heard Palomares call him “mayate” on other occasions. “There was other times that I just heard it…. There was times … we would all eat in certain places, as techs. And he would come and sit with Mr. Lalo Carrasco, Mr. Angel Ornelas, and a few other people, and they’d be talking,” Johnson said. “[Y]ou’d hear that word. It’d just stand out…. I can’t … remember every exact time that I heard that.” (R.17-1 at 60, 155.)

Coworker Raymond Yanez confirmed Palomares’s frequent use of the word, testifying that he “commonly” heard Palomares refer to Johnson as “pinche mayate” and “pinche negro.” (R.20-2 at 2.) The parties do not dispute that “pinche negro” translates to “fucking black.”

In addition to calling Johnson “pinche mayate” and “pinche negro,” Palomares regularly violated Pride’s rule that employees must be addressed only by their names. (R.17-1 at 48.) “[They] told me I would be in an environment where it wouldn’t be nobody making fun of people,” Johnson testified. (R.17-1 at 51.) Nevertheless, Palomares never called Johnson by his name; instead, he only called him “mijo” or “manos.” (R.17-1 at 48-49, 170.) “Mijo” literally translates to “my son.” https://www.spanishdict.com/translate/mi%20hijo. However, Johnson testified, “when you address somebody as ‘mijo’ that’s your son or a boy,” and he was not Palomares’s son. (R.17-1 at 46-47.) He therefore interpreted Palomares’s use of “mijo” to mean “boy,” which he considered derogatory. (R.17-1 at 46.) Johnson also objected to Palomares calling him “manos,” which translates to “hands.” https://www.spanishdict.com/translate/manos. He found this offensive because he did not like Palomares suggesting that his hands were unusually large. (R.17-1 at 51.)

Palomares mistreated Johnson in other ways as well. Johnson testified that Palomares hid his paperwork for a promotion on two separate occasions. (R.17-1 at 36-37.) He repeatedly withheld needed tools from Johnson’s work group, making it harder for him to do his job. (R.17-1 at 157-59.) He spoke only in Spanish during work-related meetings and told Johnson to “shut up” when he asked for clarification. (R.17-1 at 68; R.20-2 at 3.) When Johnson asked questions in meetings, “he just put me down.” (R.17-1 at 69.) And he directed Johnson’s supervisor to berate Johnson, but no one else, for working through lunch. (R.17-1 at 41-45.)

Palomares was not the only offender. A coworker from a different section once called Johnson a “n***r” in English to his face. (R.17-1 at 54-55.) Johnson also had “problems” with “a group of guys that followed Mr. Palomares.” (R.17-1 at 139.) “[T]he guy that led them,” Johnson testified, “was … their supervisor, Mr. Palomares.” Id.

Johnson complained about Palomares’s conduct several times to various individuals, including his supervisor, his vocational rehabilitation counselor, and the assistant facilities manager. (R.17-1 at 41, 46, 48-51, 59, 61, 63-65, 78, 204.) He testified that the harassment escalated following his complaints. (R.17-1 at 204.) Someone took his personal phone. (R.17-1 at 94, 101.) His truck was repeatedly vandalized. (R.17-1 at 83, 197.) A bottle of medicine, batteries for his drill, and keys for his work truck all disappeared. (R.17-1 at 197.) During one lunch break, someone drilled a screw into his truck’s rear tire. (R.17-1 at 66, 79-83, 168, 196.) He filed a written complaint, stating, “I … have to risk my life driving to job sites when my vehicle has been tampered with.” (R.17-1 at 197.)

Twelve days after this first written complaint, Johnson filed another written complaint about “on-going problem[s] between me and Mr. Palomares.” (R.17-1 at 196.) He also wrote that a quality inspector was following him around, parking a block away from him and taking pictures. (R.17-1 at 66-67, 76, 196.) He knew that this quality inspector and Palomares were friends. (R.17-1 at 66.) In light of the screw incident, the surveillance made Johnson feel threatened. (R.17-1 at 196.)

One week after his second written complaint, Johnson found a rifle magazine loaded with blanks on the bumper of his truck. (R.17-1 at 87-88, 198.) He filed a police report and a third written complaint, but Pride took no action. (R.17-1 at 88-90, 198, 204.) Johnson was afraid to return to work because the magazine made him fear for his life. (R.17-1 at 172-73, 204.)

In February 2017, Johnson filed an EEOC charge alleging race discrimination, disability discrimination, and retaliation. (R.17-1 at 204.) The EEOC dismissed the charge in September 2017, and five days later, Johnson left Pride (R.17-1 at 171, 215). At the direction of his vocational rehabilitation counselor, he wrote that he was leaving Pride for “medical reasons,” but he testified that this was not true. “I didn’t voluntarily resign,” he said. “I was actually forced out.” (R.17-1 at 171.) He did not file a second EEOC charge alleging constructive discharge.

B. Summary Judgment Order

Johnson filed suit alleging race discrimination and retaliation. His race discrimination claim alleged in part that he was subjected to a hostile work environment. The district court held that Johnson could not show severe or pervasive harassment because of race and granted summary judgment on that claim. (R.26 at 14.) The court explained that Johnson relied “primarily … on the alleged use of racial slurs and epithets,” consisting of “one specific incident where ‘mayate’ was not directed at Plaintiff and a vague statement by a colleague that the slur was frequently used.” (R.26 at 8, 10.) The court recognized the highly offensive nature of the word “mayate” but nonetheless concluded that “the sole use of racial slurs, including the n-word, is not in itself enough to establish a prima facie case of hostile work environment based on race.” (R.26 at 9.)

The court rejected as irrelevant the fact that Palomares called Johnson “manos” and “mijo.” “Although Plaintiff found the nickname ‘Manos’ offensive,” the court said, “‘Manos’ is not an inherently offensive or derogatory term.” (R.26 at 10-11.) “Mijo,” the court said, “is commonly used as a term of endearment, meaning ‘my son,’ ‘sweetheart,’ ‘honey,’ or dear.’” The court acknowledged that “mijo” “could be construed as demeaning,” but it said Johnson “offers no evidence that Palomares’s use of ‘Mijo’ was based on race.” (R.26 at 11.) Thus, the court concluded, “the use of these words holds little evidentiary weight of racial discrimination.” (R.26 at 11.)

The court rejected Johnson’s attempt to attribute the loaded rifle magazine, the screw in his tire, and other anonymous harassment to racial discrimination. (R.26 at 11.) The court noted that these incidents occurred “shortly after Plaintiff made multiple complaints,” and said that Johnson “has not presented evidence to show these incidents are connected to racial discrimination.” (R.26 at 11.)

The court also granted summary judgment on Johnson’s retaliatory constructive discharge claim. (R.26 at 19.) First, however, it held that Johnson had satisfied the administrative prerequisites for suit. (R.26 at 16.) The court acknowledged that Johnson had filed only a single EEOC charge, and had not filed a second charge alleging that he had been constructively discharged in retaliation for having filed that charge. However, the court concluded, when a plaintiff challenges discrimination alleged in a properly filed charge, courts have “ancillary jurisdiction” to consider a retaliation claim stemming from the filing of that charge.[3] (R.26 at 15 (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)).) The court rejected Pride’s argument that, under the reasoning of Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x 269 (5th Cir. 2013), a plaintiff may not rely on “ancillary jurisdiction” if he challenges a single action as both discriminatory and retaliatory. Johnson’s constructive discharge claim rested solely on retaliation, the court said, rendering Simmons-Myers inapplicable. (R.26 at 16.)

C. Denial of Motion to Alter or Amend Judgment

Johnson moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) “to correct a clear error of law and prevent manifest injustice.” (R.28 at 1.) Stating that the summary judgment opinion wrongly rested on consideration of an “isolated incident” of a racial slur, Johnson argued that “the isolated incident doctrine is not followed in the Fifth Circuit.” (R.28 at 2.) Johnson also noted that he had alleged “multiple instances where … Palomares call[ed] [him]‘pinche mayate.’” Id. “The fact that some of these uses of racial slurs may not have been said directly to … Johnson is immaterial,” he argued, “as the repeated use of racial slurs and threats directed at coworkers constitutes severe or pervasive harassment.” (R.28 at 3.) In sum, Johnson concluded, the court had wrongly analyzed his allegations in isolation, failing to consider the “totality of the circumstances.” (R.28 at 3.)

The district court denied Johnson’s motion. (R.32 at 14.) It repeated its view that “mijo,” “manos,” and the anonymous harassment occurring shortly after Johnson complained of discrimination were unrelated to race discrimination. (R.32 at 12-13.) “His hostile work environment claim relies on the use of the pejorative ‘mayate’ and his own ‘say so,’” the court said. (R.32 at 13.) “Plaintiff’s claims are speculative and conclusory. Simply put, Plaintiff did not meet his burden.” (R.32 at 13.)

Summary of Argument

A reasonable jury could find a severe or pervasive hostile work environment because of Johnson’s race. The district court erred by minimizing the effect and extent of racial slurs in Johnson’s workplace. The court ignored that Johnson heard Palomares call him a “mayate” on multiple occasions, and wrongly discounted Palomares’s frequent use of the word “mijo.” The court reasoned that “mijo” is not inherently offensive, and said Johnson offered no evidence that Palomares used it as a racial slur. This conclusion, however, ignores Palomares’s repeated reference to Johnson as a “pinche mayate” and a “pinche negro.” Under the totality of the circumstances, no reasonable jury could find that Palomares used “mijo” as a term of endearment. A jury, and not the district court, should have decided whether Palomares used “mijo” as a racial slur.

The district court also erred by ignoring other forms of harassment that were not explicitly discriminatory but may nonetheless have been racially motivated. Johnson testified that Palomares mistreated him in a variety of ways, including interfering with his promotion, withholding needed tools from his work group, speaking in Spanish at work-related meetings even though Johnson only spoke English, putting Johnson down and telling him to “shut up” in meetings, directing Johnson’s supervisor to berate him but no one else for working through lunch, and repeatedly calling him “manos.” If Palomares’s racial animus motivated these incidents, then the entire course of conduct would be relevant to Johnson’s hostile work environment claim. Moreover, the court erred by deciding as a matter of law that the anonymous conduct occurring after Johnson’s written complaints could not have been motivated, at least in part, by racial animus. A reasonable jury could find to the contrary.

With respect to the retaliation claim, the district court correctly held that Johnson satisfied his administrative prerequisites to suit. Binding precedent holds that a second EEOC charge is unnecessary when a plaintiff alleges retaliation for the filing of an earlier charge. As long as the retaliation occurs while the charge is still pending, or if it is challenged in a timely lawsuit on the substance of the charge, courts may consider the retaliation claim. The Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), has no bearing on this rule, as Morgan relates only to the timeliness of pre-charge conduct, not to administrative prerequisites requirements for post-charge retaliation.

Argument

A. The district court erred in holding that Johnson could not show severe or pervasive race-based harassment.

The district court erred in holding that Johnson could not establish a race-based hostile work environment. Title VII prohibits race discrimination in the “terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). A hostile work environment violates Title VII when it is “permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Gardner v. CLC of Pascagoula, LLC, 915 F.3d 320, 325 (5th Cir. 2019) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Whether harassment is sufficiently severe or pervasive to be actionable depends on the totality of the circumstances, which “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.… [N]o single factor is required.” Harris, 510 U.S. at 23.

Here, the district court erroneously said that racial slurs, standing alone, cannot create a hostile work environment. (R.26 at 9.) In fact, where there is evidence of frequently repeated racial slurs, a reasonable jury could find severe or pervasive harassment. See, e.g., Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (“[A] plaintiff’s repeated subjection to hearing [the n-word] could lead a reasonable factfinder to conclude that a working environment was objectively hostile.”) (citation omitted); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182 (4th Cir. 2001) (frequent use of n-word and “monkey” to refer to African Americans sufficient to create severe and/or pervasive hostile work environment); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (frequent racial slurs over period of years sufficient to create severe or pervasive hostile work environment), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); EEOC v. WC&M Enters. Inc., 496 F.3d 393, 400 (5th Cir. 2007) (“[A] regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII.”); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 & n.2 (11th Cir. 1982) (repeated, continuous, and prolonged use of racially offensive language is sufficient to violate Title VII).

The district court recognized that there is no racial slur more egregious than the n-word, whether in English or in Spanish. See R.26 at 9 (“‘Mayate’ is an extremely derisive and offensive term used to describe black people and has the same taboo status as the n-word.”). The court minimized the impact of this word, however, because wrongly it believed Johnson overheard Palomares say it only once and never directly to him. (R.26 at 10.) Actually, Palomares testified that he overheard the term on multiple occasions. He recounted two specific instances: once when he was standing directly in front of Johnson when Palomares referred to him as a “pinche mayate,” and once when he heard Palomares say it to coworkers during lunch. (R.17-1 at 55-59, 160-61.) He testified that he overheard Palomares say it at other times as well, although he could not remember the details. “[Y]ou’d hear that word,” he said. “It’d just stand out…. I can’t … remember every exact time that I heard that.” (R.17-1 at 60, 155.)

Coworker Raymond Yanez confirmed Palomares’s frequent use of the word. He testified that although he could not remember the details of each incident, “I personally heard Juan Palomares commonly make casual reference to African Americans as ‘pinch[es] mayates’ ... and ‘pinch[es] negros’ ... when discussing particular jobs, or, for example, when discussing who had a certain tool[ ]. In particular, I heard him use these racial slurs in reference to Michael Johnson.” (R.20-2 at 2.) The district court rejected this testimony as too “vague.” (R.26 at 10.) Short of providing specific dates for each instance, however, it is difficult to imagine how much more specific this coworker could have been. The law does not require specific dates. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (“If a jury were to credit Torres’ general allegations of constant abuse, which were confirmed by her coworkers, it could reasonably find pervasive harassment, even in the absence of specific details about each incident.”); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1456 (7th Cir. 1994) (jury not limited to considering only the five incidents to which plaintiff testified with specificity because plaintiff testified to “almost daily comments, gestures, and innuendo” of a sexual nature whenever harasser was in the office).

In any event, Johnson’s claim did not rest on “mayate” alone. Relevant to the pervasiveness of the harassment, Palomares always addressed Johnson as “mijo” or “manos.” (R.17-1 at 48-49, 170.) In deciding as a matter of law that “mijo” was not a racial slur, the district court characterized the word as a Mexican term of endearment. Johnson “offers no evidence that Palomares’ use of ‘Mijo’ was based on race,” the court said. (R.26 at 11.) However, Johnson showed that Palomares also called him a “pinche mayate”—the most vile of racial insults—on multiple occasions. In the totality of the circumstances, no reasonable jury could find that Palomares used “mijo” as a term of endearment. A jury, and not the district court, should have decided whether Palomares intended “mijo” to be a racial slur. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (depending on “context, inflection, tone of voice, local custom, and historical usage,” “boy” can be evidence of racial animus); Tademy v. Union Pac. Corp., 614 F.3d 1132, 1142 (10th Cir. 2008) (“[T]he word ‘boy’… is a term that has been used to demean African-American men, among others, throughout American history.”); Cavalier v. Clearlake Rehab. Hosp., Inc., 306 F. App’x 104, 107 (5th Cir. 2009) (“boy” is evidence of race-based harassment).

The court also ignored Palomares’s offensive conduct that was not explicitly race-based but was nonetheless harassing. Palomares violated Pride’s rule that he address Johnson only by name, instead mocking the size of Johnson’s hands by calling him “manos.” (R.17-1 at 48-51, 170.) He directed Johnson’s supervisor to berate Johnson, but no one else, for working through lunch. (R.17-1 at 43-45.) He hid the paperwork for Johnson’s promotion on two separate occasions. (R.17-1 at 36-37.) He repeatedly withheld needed tools from Johnson’s work group, making it harder for him to do his job. (R.17-1 at 157-59.) He spoke only in Spanish during work-related meetings and told Johnson to “shut up” when he asked for clarification. (R.17-1 at 68; R.20-2 at 3.) And when Johnson asked questions in meetings, “he just put me down.” (R.17-1 at 69.)

In similar circumstances, this Court has held that a harasser’s conduct must be evaluated as a whole. Thus, a jury could find that a coworker who consistently called a plaintiff an “Arab” may also have been motivated by national origin discrimination when he frequently banged on the glass partition of the plaintiff’s office. WC&M Enters., 496 F.3d at 400-01. Likewise, where Palomares engaged in some harassment that was explicitly discriminatory and some that was not, a reasonable jury could conclude that all of it was based on Johnson’s race.

Other circuits agree that when the same individual engages in various forms of harassment, some of which is explicitly discriminatory and some of which is not, all of it may constitute a single discriminatory course of conduct. See Lounds v. Lincare, Inc., 812 F.3d 1208, 1224 (10th Cir. 2015) (jury could find that offensive conduct that was not explicitly discriminatory was nonetheless race-based when viewed in context of facially discriminatory behavior); Waldo v. Consumers Energy Co., 726 F.3d 802, 815 (6th Cir. 2013) (“‘Facially neutral incidents may be included’ in a hostile-work-environment analysis of the totality of the circumstances when there is ‘some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.’”) (citation omitted); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) (“Circumstantial evidence that facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender may consist of evidence that ‘the same individual’ engaged in ‘multiple acts of harassment, some overtly sexual and some not.’”) (citation omitted); Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006) (motivation for facially neutral conduct may be unclear when viewed in isolation, but previous statements may show that later conduct resulted from illegitimate motives), overruled in part on other grounds, Burlington N., 548 U.S. at 67-68.

Johnson alleged that the race-based harassment escalated after he lodged written complaints of discrimination, pointing to incidents such as the screw in his tire and the loaded rifle magazine on his bumper. The district court erred by concluding as a matter of law that no reasonable jury could attribute these incidents to racial animus.

The evidence shows not only that Palomares harassed Johnson based on race, but that “a group of guys that followed Mr. Palomares” mistreated him as well. (R.17-1 at 139.) Because they were following Palomares’s lead, a reasonable jury could conclude that they shared, or at least condoned, his racial animus. Thus, even if the anonymous acts of harassment were largely in retaliation for Johnson’s complaints, they may also have been, at least in part, because of Johnson’s race. See Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63-64 (1st Cir. 2019) (even though some harassment was plainly in retaliation for whistleblowing, “[a] jury could also find that the retaliation was motivated in part by sex because it was committed alongside overtly sexual harassment”); Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (“[T]he district court should allow at trial for consideration of the possibility that the racial animus of Hafford’s co-workers was augmented by their bias against his religion.”).

The anonymous nature of these incidents does not render them irrelevant. Even when anonymous harassment is not explicitly discriminatory, it may contribute to a race-based hostile work environment. See Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (anonymous act of tampering with acid valves relevant to race-based hostile work environment); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (anonymous act of stealing time cards, which plaintiff needed for her work, could be “part of a complex tapestry of discrimination”); Andrews v. City of Phila., 895 F.2d 1469, 1486 (3d Cir. 1990) (recurrent disappearance of plaintiffs’ case files and work product, anonymous phone calls, and destruction of other property relevant to sex-based hostile work environment claim), superseded by statute on other grounds; cf. Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir. 1998) (“The anonymity of a letter may itself make it threatening, even if the content is innocuous.”).

B. The district court correctly held that Johnson satisfied the pre-suit requirements for his constructive discharge claim notwithstanding his failure to file a new EEOC charge.

Filing a charge with the EEOC is an administrative prerequisite to suit. 42 U.S.C. § 2000e-5(e)(1). Johnson satisfied this prerequisite by filing a charge complaining of race discrimination. He now alleges that five days after the EEOC dismissed the charge, Pride constructively discharged him in retaliation for having filed it. He did not file a second EEOC charge alleging retaliation, but he asserted the retaliation claim in the same lawsuit in which he challenged the underlying discrimination. Based on this Court’s decision in Gupta, 564 F.2d at 414, this is all he needed to do.

Gupta resolved competing concerns related to retaliation. On the one hand, the purpose of an EEOC charge is to notify the EEOC of alleged discrimination. EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984). The EEOC investigates and, if it finds reasonable cause to believe the employer has discriminated, it must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). Congress chose voluntary methods of compliance rather than litigation as its “preferred means” of dispute resolution. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015).

On the other hand, retaliation for the filing of a charge necessarily happens after an individual has already initiated the administrative process. “Requiring prior resort to the EEOC [for a retaliation claim] would mean that two charges would have to be filed in a retaliation case[—]a double filing that would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII.” Gupta, 654 F.2d at 414. An employer that has rejected voluntary resolution of a substantive discrimination charge is unlikely to resolve a subsequent charge of retaliation. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 302 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cty., 139 S. Ct. at 1843. Moreover, “a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation.” Id.

As a practical matter, a reasonable EEOC investigation would be likely to uncover any retaliation that occurs during the pendency of a charge. Duplan v. City of N.Y., 888 F.3d 612, 622 (2d Cir. 2018). If the retaliation occurs after the EEOC has already dismissed the charge (as in this case), but a plaintiff raises it in a timely lawsuit on the substance of the charge, “the efficiency of resolving all of the plaintiff’s related claims in the single, already-pending lawsuit justif[ies] a departure from rigid adherence to the statutory exhaustion requirement.” Id. at 623; see also Jones, 551 F.3d at 302-03 (applying same rule). This is the rule of Gupta, which holds that a separate charge of retaliation is unnecessary when a retaliation claim “grows out of an administrative charge that is properly before the court.” Gupta, 654 F.2d at 414; see also Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir. 1991) (same).

In Simmons-Myers v. Caesars Entertainment Corp., 515 F. App’x at 273 n.1, this Court questioned whether Gupta remains valid after the Supreme Court’s decision in Morgan, 536 U.S. at 101. Morgan holds that a plaintiff may not recover for discrete acts of discrimination related to facts alleged in a timely EEOC charge if they occurred more than 300 days before the charge was filed. Id. at 106. Title VII does not “convert[ ] related discrete acts into a single unlawful practice for the purposes of timely filing,” the Court held. Id. at 111. Thus, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. at 113.

In holding that a plaintiff cannot challenge untimely discrete acts, Morgan stressed Congress’s intent “to encourage the prompt processing of all charges of employment discrimination.” Id. at 109 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980)). This concern does not affect subsequent related acts, such as post-charge retaliation, which the EEOC can investigate promptly even without another charge. Courts holding that Morgan requires a separate EEOC charge for retaliation therefore misunderstand its holding. See, e.g., Wedow v. City of Kan. City, 442 F.3d 661, 672-76 (8th Cir. 2006) (Morgan requires separate charge for post-charge retaliation unless original charge alleged ongoing retaliation and subsequent retaliation is “the same type”); Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (arising under Title VII’s federal-sector provisions but relying on private-sector cases to hold that Morgan requires separate charge for post-charge retaliation).

This Court should limit Morgan to its facts and its holding. Morgan does not require a separate charge of retaliation for the filing of an earlier charge because post-charge retaliation is analytically distinct from untimely, pre-charge acts that were never the subject of a timely filed charge. See Jones, 551 F.3d at 303 (Morgan does not require separate charge for post-charge retaliation); Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247, 252-54 (6th Cir. 2004) (same); cf. Duplan, 888 F.3d at 622 (holding, without addressing Morgan, that no separate charge is required for post-charge retaliation); see also EEOC Compl. Man. § 2-IV, Timeliness, 2009 WL 2966756, at n.185 (Aug. 6, 2009) (“Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding.”)

For these reasons, the district court was correct. Gupta remains binding law.

Conclusion

For the foregoing reasons, the EEOC respectfully urges the Court to reverse the award of summary judgment on the hostile work environment claim. If Pride renews its argument that Johnson failed to fulfill the administrative prerequisites to suit on his retaliation claim, we urge the Court to affirm the district court’s holding allowing the claim to proceed.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

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

[2] This statement of facts relies upon all of the record evidence, including that which Johnson did not highlight for the district court. The Commission does so based on its understanding of how this Court treats such evidence in the summary judgment context: “a court can only enter summary judgment if everything in the record pleadings, depositions, interrogatories, affidavits, etc. demonstrates that no genuine issue of material fact exists. Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention the court must consider … before granting a motion for summary judgment.” Keiser v. Coliseum Props., Inc., 614 F.2d 406, 410-11 (5th Cir. 1980) (citing Higginbotham v. Ochsner Found. Hosp., 607 F.2d 653, 656 (5th Cir. 1979)); see also John v. State of La. (Bd. of Trs. for State Colls. & Univs.), 757 F.2d 698, 711 (5th Cir. 1985) (at least where record is not voluminous, “the district court must consider the record as a whole, not simply those portions of the record relied upon by the moving party or specifically pointed out in opposition to the motion by the nonmoving party”).

[3] Subsequent to the district court’s opinion, the Supreme Court clarified in Fort Bend County v. Davis, 139 S. Ct. 1843, 1849-51 (2019), that Title VII’s charge-filing requirement is not jurisdictional but is, rather, a mandatory processing rule subject to forfeiture.