Table of Contents

Table of Authorities.................................................................................... ii

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

Statement of the Issues............................................................................... 1

Statement of the Case................................................................................. 2

A. Statement of Facts............................................................................ 2

B. District Court Order.......................................................................... 4

Summary of Argument............................................................................... 6

Argument................................................................................................... 8

A. In erroneously applying the “ultimate employment action” standard, the district court failed to apply controlling precedent of the Supreme Court and this Court holding that an adverse action in the retaliation context is one that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”........................................................................... 8

B. The district court wrongly discounted most of Stancu’s evidence of age-based harassment and did not consider the totality of the circumstances in assessing Stancu’s hostile work environment claim......................................................................................... 12

C. The district court wrongly held that Hyatt could not be liable for a hostile work environment because Stancu did not know who had left him anonymous, age-related notes and did not ask management personnel if they were responsible........................ 16

Conclusion............................................................................................... 18

Certificate of Service

Certificate of Compliance

Table of Authorities

Cases

Brooks v. Firestone Polymers, L.L.C., 640 F. App’x 393 (5th Cir. 2016).. 5, 10

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006).............. 5, 7-11

Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir. 2005)........................ 17

Davis v. Dallas Area Rapid Transit, 383 F.3d 309 (5th Cir. 2004)........... 12

Decorte v. Jordan, 497 F.3d 433 (5th Cir. 2007)...................................... 15

Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011).................... 13

Donaldson v. CDB Inc., 335 F. App’x 494 (5th Cir. 2009)....................... 10

D’Onofrio v. Vacation Pubs., Inc., 888 F.3d 197 (5th Cir. 2018).............. 15

EEOC v. WC&M Enters., Inc., 496 F.3d 393 (5th Cir. 2007).............. 13, 15

Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320 (5th Cir. 2019)...... 16

Hackett v. United Parcel Serv., 736 F. App’x 444 (5th Cir. 2018)........ 6, 14

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)................................. 13, 16

Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396 (5th Cir. 1996).......... 17

Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006).......................................... 16

Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997).................... 8

McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007)............ 7, 10, 11

Pryor v. United Air Lines, Inc., 791 F.3d 488 (4th Cir. 2015)............. 16-17

Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205 (5th Cir. 2016)................ 16

Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001)....................................... 15

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)..................................... 12

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)............ 15

Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006)............................... 12

Stroy v. Gibson on behalf of Dep’t of Veterans Affairs, 896 F.3d 693

(5th Cir. 2018)............................................................................................ 8

Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008).................. 17

Thomas v. Johnson, No. 3:15-cv-1005-N-BN, 2015 WL 5326192

(N.D. Tex. Aug. 7, 2015)................................................................. 5, 10-11

Thompson v. City of Waco, 764 F.3d 500 (5th Cir. 2014)........................... 5

Wheat v. Fla. Parish Juvenile Justice Comm’n, 811 F.3d 702 (5th Cir. 2016)........................................................................................................ 15

Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997)........................ 12

Statute and Rule

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. 1

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

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting, administering, and enforcing the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. The district court in this case adopted the magistrate’s flawed analysis in full, conflating the adverse action standard for a retaliation claim with the more stringent adverse action standard for a substantive discrimination claim. This approach violates both the Supreme Court’s and this Court’s precedent. The EEOC has a substantial interest in ensuring that district courts properly understand and apply the laws it enforces.

This case also raises important questions involving the quantity and quality of evidence required for a jury to find that a plaintiff was subjected to a hostile work environment, and the potential liability of an employer for harassment by anonymous individuals. Resolution of these issues is directly relevant to the EEOC’s enforcement efforts. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issues[1]

1. Should the district court have rejected the magistrate’s conclusion that Stancu must show an “ultimate employment decision” for his retaliation claim rather than simply an action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination?

2. Did the district court wrongly usurp the jury’s fact-finding role by agreeing with the magistrate that the anonymous age-based notes on Stancu’s tool cart were not objectively offensive as a matter of law, and by failing even to consider other evidence of an age-based hostile work environment?

3. Should the district court have rejected the magistrate’s conclusion that Hyatt could not be liable for a hostile work environment based on anonymous notes that may have been left by coworkers?

Statement of the Case

The ADEA prohibits discrimination on the basis of age, including age-based hostile work environments. It also prohibits retaliation for opposing age-based discrimination. John Stancu, a pro se litigant, sued Hyatt for a hostile work environment and retaliation. The district court granted summary judgment on both claims.

A. Statement of Facts

Stancu began working for Hyatt as an entry-level engineer in October 2015. ROA.1547. He testified that approximately one month after he started his job, several coworkers told him that Hyatt was discriminating against them. The coworkers asked Stancu for advice, and he gave them EEOC literature explaining how to file discrimination charges. ROA.1548-49, 1679.

Stancu alleges that after management learned of this action, he was subjected to a hostile work environment because of his age and/or in retaliation for having advised his coworkers about employment discrimination. ROA.928. He testified that over the course of six months, he discovered a series of offensive and threatening notes on his tool cart. ROA.1632. One note said “Hyatt Retirement and Funeral Home—R.I.P. Mr. John,” ROA.1006; another said “For Free Wheelchair and Diapers Call AARP 1-800-222-4357,” ROA.1007; one had directions to the retirement office, ROA.1613; one said “Wellcome [sic] to Hell fucking old crook,” ROA.1685; and one was a drawing of an old man in a wheelchair carrying his engineering tools, with a sign on the wheelchair saying “John, Unit 1,” a reference to Stancu’s work unit. ROA.1586, 1698. Stancu does not know who left the notes and did not ask anyone whether they were responsible. ROA.1576. He did, however, report the notes to the human resources director, who did nothing. ROA.1576-77, 1632.

Stancu also testified that an unknown person broke into his tool cart and stole his tools, ROA.1551, 1559, 1631, 1679-80, and that the chief engineer sent coworkers to check on his whereabouts every day. ROA.1582, 1632, 1635. Moreover, he related, Hyatt omitted him from the work schedule for one week (but paid him for sick leave), ROA.1552, 1554, 1679-80, and Hyatt sent numerous emails to his personal email account rather than his Hyatt account. ROA.1574, 1679-80. Stancu further testified that management assigned him additional responsibilities for which he was not trained and then criticized him for falling behind, refused to provide supplies he needed for his job and his safety, assigned him to work in “unventilated rooms infested with toxic and poisonous gases,” and effectively doubled his workload by transferring a coworker to another department and not replacing her for at least one year. ROA.1632, 1635, 1679-80. Finally, Stancu alleged, Hyatt refused to consider him for a promotion to chief engineer. He testified that the facilities manager told him not to bother applying for the promotion because “[t]hey’re looking for somebody younger.” ROA.1579-80.

Stancu never received any formal discipline, suspension, termination, or pay cuts in the period after he handed out EEOC literature. To the contrary, he received a raise of $2.00 per hour. ROA.1539.

B. District Court Order

The magistrate judge first recommended that the district court grant summary judgment on the retaliation claim. A prima facie case of retaliation, the magistrate observed, “requires a showing that (1) [Mr. Stancu] engaged in a protected activity pursuant to one of the statutes, (2) an adverse employment action occurred, and (3) there exists a causal link connecting the protected activity to the adverse employment action.” ROA.1865 (citation omitted). According to the magistrate, the adverse action prong “ʻrequire[s] an “ultimate employment decision” or its factual equivalent.’” Id. (citing Brooks v. Firestone Polymers, L.L.C., 640 F. App’x 393, 396-97 (5th Cir. 2016) (per curiam)).

To show an “ultimate employment decision,” the magistrate explained, Stancu had to show “‘an employment decision that affects the terms and conditions of employment … such as hiring, firing, demoting, promoting, granting leave, and compensating.’” Id. (quoting Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (ellipsis in original)). The magistrate also pointed to two additional authorities: a passage in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53, 62 (2006), stating that Title VII’s anti-discrimination provision is limited to employment-related actions, and his own previous recommendation in a different case providing that adverse employment actions must be ultimate employment decisions. ROA.1865 (citing Thomas v. Johnson, No. 3:15-cv-1005-N-BN, 2015 WL 5326192, at *6 (N.D. Tex. Aug. 7, 2015)). Because Stancu had not made this showing, the magistrate concluded, he could not establish a prima facie case of retaliation. ROA.1866.

The magistrate also recommended that the district court grant summary judgment on the age-based hostile work environment claim. First, according to the magistrate, “The only age-based harassment that Mr. Stancu offers evidence of are the notes that contained insults about his age that were left on his tool cart. And he has not shown that these age-based offenses considered alone are objectively offensive.” ROA.1868 (citing Hackett v. United Parcel Serv., 736 F. App’x 444 (5th Cir. 2018)).

The magistrate added that Stancu had not shown that Hyatt’s management was responsible for the age-based notes. “Mr. Stancu … admitted at his deposition that he had no suspicions of who left the notes on his cart and did not ask anyone in Hyatt’s management if they were responsible for the notes, thus negating the fourth prong [of the prima facie case]—that ‘there exists some basis for liability on the part of the employer.’” Id. (brackets added) (citation omitted).

The district court accepted the magistrate’s findings, conclusions, and recommendations without discussion. ROA.1948.

Summary of Argument

The district court erred by granting summary judgment on Stancu’s retaliation claim based on the magistrate’s conclusion that Stancu could not show an “ultimate employment decision.” This Court applies the “ultimate employment decision” standard in the context of substantive discrimination claims, but not retaliation claims. The Supreme Court has held, and this Court has recognized, that a plaintiff may establish a retaliatory adverse action by showing only “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N., 548 U.S. at 68 (some internal quotation marks omitted) (citation omitted); see also, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 558 (5th Cir. 2007).

The court also erred by adopting the magistrate’s conclusion that Stancu had introduced insufficient evidence of a hostile work environment. Without even describing the content of the notes that Stancu found on his tool cart, the magistrate determined as a matter of law that they were not objectively offensive—a conclusion that is insupportable based on what the notes actually said. Moreover, the magistrate characterized these notes as Stancu’s sole evidence of a hostile work environment, refusing to consider his testimony of behavior that was not explicitly age-based but may have been discriminatory nonetheless.

Finally, the court wrongly accepted the magistrate’s conclusion that Hyatt could not be responsible for a hostile work environment because Stancu could not identify his harasser(s) and did not ask management personnel if they were responsible for the offensive notes. An employer may be liable for a hostile work environment under the ADEA whether or not management perpetrates the harassment, and whether or not the harasser is anonymous. The controlling question is whether the employer knew or should have known of the harassment and failed to take prompt remedial action. Stancu testified that he told Hyatt’s human resources director about the harassment but that no one in management responded to his complaints. This testimony, if credited by a factfinder, is sufficient to support employer liability.

Argument

In agreeing with the magistrate that a retaliatory adverse action must be an “ultimate employment decision,” the district court wrongly failed to apply the standard for retaliation claims, applying instead this Court’s adverse-action standard for substantive discrimination claims. See Stroy v. Gibson on behalf of Dep’t of Veterans Affairs, 896 F.3d 693, 699 (5th Cir. 2018) (substantive discrimination standard). Prior to 2006, this Court did apply the “ultimate employment decision” standard to retaliation claims. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-08 (5th Cir. 1997). However, the Supreme Court expressly overruled Mattern in Burlington Northern. 548 U.S. at 60, 67.

In Burlington Northern, the Supreme Court relied on differences in statutory language to interpret the “adverse action” standard of Title VII’s anti-retaliation provision more broadly than the “adverse action” standard applicable to the substantive prohibition on discrimination. In the retaliation context, the Court held, a plaintiff must show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 68 (citations and some internal quotation marks omitted).

Although the anti-retaliation provision “cannot immunize [an] employee from those petty slights or minor annoyances that often take place at work and that all employees experience,” the Court said, it “prohibit[s] employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC.’” Id. at 68 (citation omitted). “[T]he significance of any given act of retaliation will often depend upon the particular circumstances,” the Court explained. Id. at 69. “[An] act that would be immaterial in some situations is material in others.” Id. (citation and internal quotation marks omitted).

In announcing this new standard, the Burlington Northern Court expressly repudiated this Court’s “ultimate employment decision” requirement in the retaliation context. The Court explained, “We … reject the standards applied in the Courts of Appeals that have treated the antiretaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited actionable retaliation to so-called ‘ultimate employment decisions.’” Id. at 67.

This Court has acknowledged that Burlington Northern changed circuit law. See McCoy, 492 F.3d at 559 (“In the recent case of Burlington Northern … the Supreme Court abrogated our approach in the retaliation context in favor of the standard used in the Seventh and D.C. Circuits, which defines an adverse employment action as any action that ‘might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”) (emphasis in original); see also Donaldson v. CDB Inc., 335 F. App’x 494, 507 (5th Cir. 2009) (“While pre-Burlington Northern, our court rejected the notion that retaliatory harassment could be sufficiently adverse to be considered actionable, the new, Burlington Northern standard makes clear that a genuine issue of material fact exists for whether the conduct against Donaldson … was such that it ‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”) (citations omitted).

The magistrate here cited Burlington Northern but ignored the case’s central holding distinguishing between anti-discrimination and anti-retaliation claims. ROA.1865. The magistrate also cited Brooks, 640 F. App’x at 396-97, for the proposition that an adverse employment action “require[s] an ‘ultimate employment decision’ or its factual equivalent,” but ignored that it is a discrimination case, not a retaliation case. ROA.1865. Finally, the magistrate quoted his own prior opinion in Thomas, 2015 WL 5326192, at *6, for the proposition that “[t]hreats, reprimands, and warnings, because they do not constitute ultimate decisions, do not suffice as adverse employment actions.” ROA.1865. The magistrate ignored, however, that this portion of Thomas related to a discrimination claim, not a retaliation claim.

The magistrate was plainly confused about the difference between adverse actions vis-à-vis retaliation claims versus substantive discrimination claims. Although this Court has already explained the import of Burlington Northern, see, e.g., McCoy, 492 F.3d at 558, the EEOC urges the Court once again to explain that a retaliatory adverse action need not constitute an ultimate employment decision. All that is required is that the challenged action “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N., 548 U.S. at 68 (citation omitted).

The EEOC takes no position on whether Stancu adduced sufficient evidence to satisfy this standard, but we note that at least some of Stancu’s allegations are of the type that would qualify as sufficiently adverse if adequately substantiated. If a plaintiff could show that his employer set him up to fail by assigning him jobs for which he was not trained, made him work in unsafe conditions, effectively doubled his workload by transferring a coworker and not replacing her, or refused to consider him for a promotion (for which he was eligible), see supra at 3-4, any or all of these would constitute an adverse action under Burlington Northern. See, e.g., Rochon v. Gonzales, 438 F.3d 1211, 1219-20 (D.C. Cir. 2006) (failure to investigate death threat made against FBI agent by federal prison inmate is retaliatory adverse action under Title VII); Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319-20 (5th Cir. 2004) (denying promotions after retaliatory modification of promotion criteria so as to exclude plaintiffs from consideration constitutes adverse action for purposes of Title VII retaliation claim); Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir. 2000) (decreasing amount of time employee has to complete same amount of work constitutes retaliatory adverse action); Woodson v. Scott Paper Co., 109 F.3d 913, 924 (3d Cir. 1997) (under Title VII, “engag[ing] in a pattern of antagonistic behavior against Woodson after his complaints, setting him up to fail in a poorly performing division and then terminating him through a ‘sham’ ranking procedure” could constitute illegal retaliation).

B. The district court wrongly discounted most of Stancu’s evidence of age-based harassment and did not consider the totality of the circumstances in assessing Stancu’s hostile work environment claim.

The magistrate disregarded well-established law regarding hostile work environment claims under the ADEA. As this Court has explained, a plaintiff alleging an age-based hostile work environment must show that “(1) he was over the age of 40; (2) [he] was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.” Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011). Whether a work environment is “objectively intimidating, hostile, or offensive,” id., depends on whether the harassment is “severe or pervasive,” which “can be determined only by looking at all the circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

“Under the totality of the circumstances test, a single incident of harassment, if sufficiently severe, could give rise to a viable [hostile work environment] claim as well as a continuous pattern of much less severe incidents of harassment.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (Title VII). Thus, “a regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII.” Id.

Here, the magistrate made several errors. First, he improperly minimized the impact of the notes Stancu found on his tool cart. Rather than describing their actual contents, the magistrate referred to the notes only in vague terms. ROA.1868. The notes, however, reflect obvious animosity based on Stancu’s age, or at least a jury could so find. They say:

(1) “Hyatt Retirement and Funeral Home—R.I.P. Mr. John.” ROA.1006.

(2) “For Free Wheelchair and Diapers Call AARP 1-800-222-4357.” ROA.1007.

(3) “Wellcome [sic] to Hell fucking old crook.” ROA.1685.

(4) A drawing of an old man in a wheelchair carrying his engineering tools, with a sign on the wheelchair saying “John, Unit 1.” ROA.1698.

(5) Directions to the retirement office. ROA.1613.

The magistrate erred by concluding as a matter of law that these notes were not objectively offensive. ROA.1868. It is difficult to imagine how a reasonable employee in Stancu’s position would not be offended by notes referring to him as a “fucking old crook” or suggesting that he needs a wheelchair and diapers because of his advanced age, let alone pointing him to a “retirement and funeral home” with instructions to “R.I.P.” The sole case that the magistrate cited to support his conclusion that the notes were not objectively offensive involved another question entirely: whether the plaintiff had alleged sufficient incidents over the span of seven years to show severe or pervasive harassment. Id. (citing Hackett,

736 F. App’x at 450). That case said nothing about what would or would not constitute an objectively offensive remark.

Moreover, the magistrate ignored other evidence of harassment. Stancu alleged that, among other things, his tools were sabotaged, his work schedule was reduced, and he was forced to work in unventilated rooms filled with toxic gas. ROA.1679-80. The magistrate characterized this sworn testimony as insufficiently detailed and “conclusory,” ROA.1866, but a jury might well disagree. Affidavits are “conclusory” only when their allegations are speculative or vague. See, e.g., D’Onofrio v. Vacation Pubs., Inc., 888 F.3d 197, 208 (5th Cir. 2018) (allegations are speculative if not based on personal knowledge); Wheat v. Fla. Parish Juvenile Justice Comm’n, 811 F.3d 702, 707 (5th Cir. 2016) (inadequate to allege that “assignment of janitorial duties was a retaliatory, materially adverse action” without describing the janitorial duties).

Stancu’s affidavit was neither speculative nor vague. He relied on personal knowledge and testified about specific incidents of negative treatment. His lack of details might render his testimony less believable, but credibility determinations are for a jury. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Decorte v. Jordan, 497 F.3d 433, 438 (5th Cir. 2007).

The conduct that Stancu described in his affidavit was not overtly discriminatory based on age, but a reasonable jury could conclude that the age animus revealed in the notes also tainted the conduct that was not explicitly age-based. See, e.g., WC&M Enters., 496 F.3d at 400 (in light of explicit verbal abuse based on national origin, jury could conclude that harasser’s banging on employee’s glass partition was also motivated by the same animus); Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001) (“To demonstrate that all of the alleged abuse was on account of sex, [employee] may … show that the sex-based verbal abuse indicated that other adverse treatment was also suffered on account of

sex ….”); 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. This is why the totality of the circumstances test requires courts to consider evidence of abusive conduct that is not explicitly age-based as part of the hostile work environment at issue. See, e.g., Harris, 510 U.S. at 23.

Contrary to the magistrate’s apparent reasoning, ROA.1868, an employer may be liable for a hostile work environment whether or not management is behind the harassment. If an employer “knew or should have known about the hostile work environment yet allowed it to persist,” it may be held liable for harassment by coworkers or even by third parties. Gardner v. Pascagoula, L.L.C., 915 F.3d 320, 321-22 (5th Cir. 2019) (third parties); Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205, 213 (5th Cir. 2016) (coworkers).

It does not matter that Stancu did not know who left the notes on his cart and did not ask anyone in management if they were responsible. See ROA.1576-77. “An employer is not subject to a lesser standard simply because an anonymous actor is responsible for the offensive conduct.” Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015); Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005) (plaintiff’s “inability to verify the authorship of the racist graffiti poses no obstacle to his establishing that this graffiti produced or contributed to a hostile work environment”). Nor does the difficulty of identifying an anonymous actor necessarily relieve an employer of the obligation to try to do so. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1149 (10th Cir. 2008) (possible responses to complaints of anonymous harassment include collecting handwriting samples to compare with handwriting on graffiti or interviewing employees); cf. Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399-400 (5th Cir. 1996) (employer responded appropriately by taking complaints seriously and investigating anonymous telephone calls and notes). “Although there may be difficulties with investigating anonymous acts of harassment, those difficulties at most present factual questions about the reasonableness of [an employer’s] response; they are not sufficient to support a finding that [an employer] acted reasonably as a matter of law.” Tademy, 614 F.3d at 1149.

Here, a reasonable jury could readily find that Hyatt knew or should have known of the harassment but failed to take prompt remedial action. Stancu testified, “I report[ed] [the notes] to the management, and they didn’t stop it …. I told the HR director what happened, and he said that he’s going to get to the bottom of it. He seemed … to be real. [But] [w]hat he did …amounts to … nothing.” ROA.1576-77. This testimony, if credited by a trier of fact, is sufficient to support employer liability.

Conclusion

The district court erred in accepting the magistrate’s findings, conclusions, and recommendation. The magistrate first misunderstood the law governing retaliatory adverse actions. Then, with regard to the substantive hostile work environment claim, the magistrate minimized the impact of the explicitly age-based notes left on Stancu’s tool cart, failed to consider the totality of the circumstances, and usurped the jury’s role in making credibility determinations. Finally, the magistrate wrongly said that Hyatt could not be liable for a hostile work environment because Stancu did not know who had left him anonymous, age-related notes and did not ask management personnel if they were responsible. For all of these reasons, the EEOC respectfully urges this Court to reverse the award of summary judgment and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE s/ Gail S. Coleman

Deputy General Counsel Attorney

EQUAL EMPLOYMENT OPPORTUNITY

JENNIFER S. GOLDSTEIN COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

ELIZABETH E. THERAN Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this case. We note that the Appellant has not requested oral argument. Given the importance of the issues addressed in this brief, however, the EEOC would welcome the opportunity to present oral argument if this Court would find it helpful.