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

STATEMENT OF INTEREST........................................................................ 1

STATEMENT OF THE ISSUE....................................................................... 2

STATEMENT OF THE CASE....................................................................... 2

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

B. District Court’s Decision...................................................................... 9

ARGUMENT................................................................................................ 14

The District Court Erred In Ruling that No Reasonable Jury Could Find that Walker Was Subjected to Actionable Severe or Pervasive Harassment On the Basis of Her Sex..................................................................................................................... 14

A. The District Court Erred in Treating the Most Egregious Cases and Facts As Establishing a Baseline For Actionable Harassment....................... 16

B. The District Court Failed to Consider Severity and Pervasiveness In Tandem, and In the Alternative................................................................................ 22

C. The District Court Failed to View the Record Evidence In Light of the Totality of the Circumstances............................................................................... 28

CONCLUSION............................................................................................. 37

CERTIFICATE OF COMPLIANCE............................................................ 38

CERTIFICATE OF SERVICE

Table of Authorities

Cases

Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002)............................... 21

Andrews v. Staples the Office Superstore E., Inc., No. 7:11cv00037,
2013 U.S. Dist. LEXIS 92011 (W.D. Va. July 1, 2013)............................ 12

Baskerville v. Culligan Int’l Co., 50 F.3d 428 (7th Cir. 1995)........................ 21

Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001).................................... 35

Burns v. AAF-McQuay, Inc., 166 F.3d 292 (4th Cir. 1999)......................... 25

Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir. 2005).............................. 23

Conner v. Schrader-Bridgeport Int’l, Inc.,
227 F.3d 179 (4th Cir. 2000).................................................. 14, 15, 28, 29

EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009).............. 19, 22

EEOC v. Fairbrook Med. Clinic, 609 F.3d 320 (4th Cir. 2010).............. passim

EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840 (9th Cir. 2005).......... 23, 34

EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001).......................... 13, 31

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)....................... 18

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).............................................. 34

Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001)............................... 27

Greene v. A. Duie Pyle, Inc., 170 F. App’x 853 (4th Cir. 2006).................... 21

Greene v. A. Duie Pyle, Inc., 371 F. Supp. 2d 759 (D. Md. 2005)................ 14

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

Harris v. Mayor & City Council of Balt.,
429 F. App’x 195 (4th Cir. 2011)....................................................... 10, 30

Hartsell v. Duplex Prods., Inc., 123 F.3d 766 (4th Cir. 1997)....................... 25

Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).......................................... 36

Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir. 2011)...................... passim

Jackson v. Cnty. of Racine, 474 F.3d 493 (7th Cir. 2007)............................... 21

Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) (en banc).............. 13

Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157 (5th Cir. 2007)... 23

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).................................. 22

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) (en banc) passim

Okoli v. City of Balt., 648 F.3d 216 (4th Cir. 2011)........................... 10, 25, 26

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)............... 26, 33

Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004)........................................ 35

Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d 798 (11th Cir. 2010) (en banc).................................................. 31

Singleton v. Dep’t of Corr. Educ., 115 F. App’x 119 (4th Cir. 2004)............. 12

Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000)......... 10, 19, 25

Spicer v. Commonwealth of Va. Dep't of Corrs.,
66 F.3d 705 (4th Cir. 1995) (en banc)...................................................... 15

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)..................... 30

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994)................. 34

Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008)...................... 23

White v. BFI Waste Servs., 375 F.3d 288 (4th Cir. 2004).............................. 18

Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999)....................... 29

Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008)...................................... passim

Statutes & Rules

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

Fed. R. App. P. 29(a)....................................................................................... 1

Fed. R. App. P. 29(d).................................................................................... 38

Fed. R. App. P. 32(a)(5)................................................................................ 38

Fed. R. App. P. 32(a)(6)................................................................................ 38

Fed. R. App. P. 32(a)(7)(B)........................................................................... 38

OTHER AUTHORITIES

EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (BNA) (1990), available at http://www.eeoc.gov/policy/docs/currentissues.html........................... 23

Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, Sec. II(A)(2) (1992), at http://www.eeoc.gov/policy/docs/damages.html.................................. 27

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal presents an important issue concerning the proper analysis of an actionable hostile work environment under Title VII.

In rejecting the plaintiff’s hostile work environment claim in this case, the district court misapplied the governing precedent of both the Supreme Court and this Court for proving harassment claims arising under Title VII. Because resolution of this issue will affect the EEOC’s enforcement of Title VII, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Whether the district court erred in holding that the plaintiff did not adduce sufficient evidence of severe or pervasive harassment to survive summary judgment, and in overly relying on various immaterial factors in its analysis.

STATEMENT OF THE CASE

A. Statement of the Facts

The defendant in this case, Mod-U-Kraf Homes, LLC (“Mod-U-Kraf”), is a company that builds modular single-family homes, multi-family homes, and commercial projects. Plaintiff Robin Walker began working for Mod-U-Kraf in June 2007 at its manufacturing facility in Rocky Mount, Virginia. I-JA-403. Her position was that of “trim painter,” which included “paint[ing] the wood around the windows, baseboard, and crown molding” of modular homes. Id. Walker was laid off from Mod-U-Kraf in 2009 due to lack of work, but returned to work there as a trim painter in May 2010. I-JA-409, 421, 423-24 .

Walker testified that she was subjected to harassing remarks by several coworkers during both periods of her employment at Mod-U-Kraf. She related that, about a week after she came to Mod-U-Kraf in May 2007, coworker David Mullins said to her in front of another coworker, “[w]e got new fresh meat here.” I-JA-415-16. Walker also testified that, whenever she walked past Mullins and his friends in the plant, “[t]here would be little snickers,” and “they would stick their tongue out at you and say, [h]ey, come here.” I-JA-417. Walker related that she reported Mullins’ behavior to her “lead person,” Sandra Burnopp, who told her to “just ignore it,” and to her supervisor, Wayne Craiger, who said he would speak to Mullins. I-JA-416-17, 419. Shortly thereafter, Walker testified, she was moved to work on cleaning tasks outside the plant, so she did not have any contact with Mullins. Id.

Walker testified that, when she returned to Mod-U-Kraf, Mullins’ harassment continued and intensified. Beginning in late 2010, when she moved from the cleaning area back to trim painting, Walker explained, she had to pass Mullins’ work area every time she went to the bathroom. I-JA-447-48, 450. She testified that, two or three times per week, Mullins would “grab himself” as she walked by and say, “[t]hese nuts are looking for you.” I-JA-447-48. She also testified that Mullins made the same remarks to a female coworker, Connie Young, while Walker and Young were both working in the same area of the plant. I-JA-465.

According to Walker, she repeatedly reported Mullins’ comments to Burnopp and Craiger, but Burnopp continued to tell her to ignore him. I-JA-449. Finally, after multiple complaints, Craiger told Walker that he had spoken to Mullins and “it should stop.” I-JA-451. Walker testified that Mullins continued to make his “these nuts” comments approximately once a week. I-JA-452.

Walker also testified that another coworker, James Young, made the same remark to her “every day” beginning in March/April 2011. I-JA-454-55. As with Mullins’ remarks, Walker repeatedly reported Young to Burnopp and Craiger, and received the same response. I-JA-459-60.

Walker began dating a coworker, Ray Cassidy, at the end of March 2011. I-JA-435, II-JA-586. Walker testified that, after she and Cassidy began dating, Mullins made “more comments” and the situation got worse. I-JA-462, 523. In the investigation statement Walker gave Mod-U-Kraf, she wrote that Mullins would say “there she goes, there it is” two or three times a week; she further testified that Mullins would sometimes “grab hi[m]self and … start hollering, Oh oh oh.” I-JA-559 (noting that Mullins did so on June 7, 2011). Walker also related that Ricky Adkins, the plant manager, once told her, “[i]f you would give Ray some rest, his blood pressure wouldn’t be high.” I-JA-497.

Cassidy testified extensively about Mullins’ and Young’s behavior. He testified that Mullins and Young made their “these nuts” remarks directly to Walker “probably every other day two or three times a day.” II-JA-614. He also described an incident where Walker was hanging trim near Mullins’ work area, and Mullins said to her, “[o]h, I bet you could holler real loud, couldn’t you.” II-JA-622. Cassidy further testified that Mullins and Young would also grab their crotches and make “these nuts” remarks at him and other Mod-U-Kraf employees, male and female. II-JA-608-09, 655. According to Cassidy, they would make the remarks “[a]nytime they had the opportunity[.]” II-JA-655.

Both Cassidy and Walker testified about another incident that occurred on June 16, 2011. Walker was working up in a “box,” or a section of a modular home (I-JA-405), painting trim, when Mullins said, in Walker’s hearing, “if you want a blow job go up in that box.” I-JA-288, 507, II-JA-620. Walker testified that, as far as she knew, she was the only one working in that box at the time, and Mullins directed the comment at her. I-JA-288, 507. Walker testified that she reported the incident to Burnopp, who again told her to ignore it. I-JA-509.

The final incident involving Walker, Cassidy, and Mullins occurred on July 20, 2011. I-JA-467. That morning, Walker was working outdoors, while Mullins and Cassidy were working inside the plant. I-JA-467-68. When the lunch bell rang, Cassidy came outside to meet Walker. I-JA-468, 471-72. As Cassidy and Walker were going to lunch, Mullins and another coworker, John Craft, were walking in front of them. I-JA-472, II-JA-630. At that point, both Cassidy and Walker testified, Mullins turned around to look at them and said, repeatedly, “[w]iener in your mouth.” Id. Both Walker and Cassidy testified that Mullins directed the statement at them; Walker related that Mullins “turned right around and looked at me in the face,” and she and Cassidy were “side by side.” I-JA-473-74, II-JA-630-31.

Walker testified that, about halfway through the lunch hour, she called Burnopp to report the incident and asked her to tell Craiger to meet her and Cassidy in the plant after lunch. I-JA-475-76. After Walker and Cassidy finished eating lunch, they testified, they went back into the plant and approached Mullins’ table, where Mullins was “looking right at us laughing.” I-JA-477-79, II-JA-632-34. Walker testified that Cassidy told Mullins “[t]his is going to stop”; Cassidy testified that he told Mullins to stay at his workstation to wait for Craiger. I-JA-479-80, II-JA-633-34.

A physical and verbal altercation ensued between Walker, Cassidy, and Mullins. Burnopp was the first supervisor to arrive on the scene, followed shortly thereafter by Craiger, Adkins, and Jeff Manning, another supervisor at the plant. I-JA-407, 484-87, II-JA-628. Craiger told Walker, Cassidy, and Mullins to stop fighting, and Adkins ordered everyone present into the break room. I-JA-485-87, 490, II-JA-628. Walker testified that Adkins asked her and Cassidy what had happened, and she responded, “David Mullins made the comment when I was going to lunch to me and Ray that, wiener in your mouth…. I am tired of hearing it…. Wayne [knew] it…. You knew it.” I-JA-491. According to Walker, Adkins “just look[ed] at” her, and told her, “[d]o not speak to anyone. Go back to your job.” I-JA-492. Later that day, Walker testified, Adkins told her that she needed to write a statement, which she did. I-JA-288, 492-93.

After leaving work on July 20, Walker related, she went to see a doctor for menopause- and stress-related issues, and the doctor took her out of work for two days. Walker testified that she called Mod-U-Kraf on Thursday morning, July 21, to inform the company of her two-day medical leave. I-JA-495. On Friday, July 22, Walker testified, she went to see her family doctor, Dr. Lewis, who took her out of work for two weeks, advising her to quit her job due to the stress it was causing her. I-JA-494-95. According to Walker, she called Mod-U-Kraf on Monday morning, July 25, to let them know that Dr. Lewis had placed her on two weeks’ medical leave. I-JA-496. “[W]ithin about 20-some minutes,” Walker testified, Adkins called her on the phone and fired her, telling her it was “[f]or misconduct.” Id.

After filing a timely EEOC charge and obtaining a Notice of Right to Sue, Walker filed timely suit in the Western District of Virginia on October 3, 2012, claiming sexual harassment in violation of Title VII. I-JA-1, 12. The defendant moved for summary judgment on October 23, 2013. I-JA-20.

B. District Court’s Decision

The district court granted the defendant’s motion for summary judgment. II-JA-997. After reviewing the factual background of the case and the applicable legal framework, the court concluded that “Walker’s evidence of misconduct by Mullins and Young is insufficient, as a matter of law, to meet the high bar required to survive summary judgment on a hostile work environment claim.” II-JA-1008. The court observed, “[w]hile some of the comments made by Young and Mullins were clearly inappropriate, and the court has no reason to doubt that Walker found them offensive, her coworkers’ behavior was simply not of the same magnitude as that which the Fourth Circuit has found sufficiently severe or pervasive to constitute actionable sexual harassment.” II-JA-1008-09 (stating that “‘the alleged harassment, even if because of gender, must still be objectively as severe as that in cases that [the court has] allowed to go to a jury’”) (quoting Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008)) (alteration in district court opinion).

The district court then summarized other Fourth Circuit cases where it characterized the harassment at issue as being more severe than that Walker experienced. II-JA-1009-12 (citing EEOC v. Fairbrook Med. Clinic, 609 F.3d 320 (4th Cir. 2010); Okoli v. City of Balt., 648 F.3d 216 (4th Cir. 2011); Harris v. Mayor & City Council of Balt., 429 F. App’x 195 (4th Cir. 2011) (unpublished); Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000); and Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) (en banc)). According to the court:

[U]nlike the foregoing cases, Walker does not allege that Mullins or Young ever touched her inappropriately, or earnestly propositioned her for sexual acts. She does not allege that they went out of their way to disgust her and make her feel uncomfortable by engaging in demonstrations of sexual acts or extremely graphic discussions regarding their sexual activity. She does not suggest that she was subjected to frequent comments about her body. She does not claim that she was exposed to demeaning, gender-based epithets or subjected to physical threats. Instead, Walker describes a workplace in which it was not uncommon for two of her co-workers to act in a boorish, moronic manner.

II-JA-1011-12. The court continued, “[t]he actions that occurred most frequently—Mullins and Young’s ‘these nuts’ antics—were clearly inappropriate and unprofessional, but they were not so extreme as to amount to a change in the terms and conditions of Walker’s employment.” II-JA-1012.

The district court next observed that “it is undisputed that these comments were not directed at Walker exclusively, and that they were instead made to male and female employees alike.” II-JA-1012. The court observed:

We have previously recognized that there is a difference between “generalized” statements that pollute the work environment and “personal gender-based remarks” that single out individuals for ridicule. Common experience teaches that the latter have a greater impact on their listeners and thus are more severe forms of harassment.

Id. (quoting Fairbrook, 609 F.3d at 328-29).

The court then characterized Mullins’ “blow job,” “wiener in the mouth,” and “bet you could holler real loud” comments as one-time incidents that did not meet the standard for a hostile work environment in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Instead, the court said, these were “examples of ‘the kind of rude behavior, teasing, and offhand comments that [the Fourth Circuit has] held are not sufficiently severe and pervasive to constitute actionable sexual harassment.’” II-JA-1012 (quoting Singleton v. Dep’t of Corr. Educ., 115 F. App’x 119, 122 (4th Cir. 2004) (unpublished)).

The court also noted that Walker had “failed to proffer evidence from which a reasonable jury could find that Mullins and Young’s actions unreasonably interfered with her work performance.” II-JA-1013. The court found that, although “the record reveals that Walker has a history of anxiety and depression, which may have been aggravated by her coworkers’ conduct,” her claim was not actionable, noting that “‘the objective prong of the test is “designed to disfavor claims based on an individual’s hypersensitivity.”’” Id. (quoting Andrews v. Staples the Office Superstore E., Inc., No. 7:11cv00037, 2013 U.S. Dist. LEXIS 92011, at *32 (W.D. Va. July 1, 2013) (unpublished) (quoting Fairbrook, 609 F.3d at 328)).

The court then characterized Walker’s case as “distinguishable from a number of existing Fourth Circuit cases, since the relative power between Walker and her alleged harassers does not contribute to making their conduct more severe.” II-JA-1013-14. According to the district court, “hostile work environment cases that have succeeded in this circuit ‘have often involved a disparity in power between the harasser and the victim.’” II-JA-1014 (quoting Ziskie, 547 F.3d at 227). The court noted that Walker claimed she was harassed by “two coworkers,” and contrasted her allegation with those in other Fourth Circuit cases. Id. (citing Jennings v. Univ. of N.C., 482 F.3d 686, 697 (4th Cir. 2007) (en banc) (harasser was forty-five years old and victims were as young as seventeen); Ocheltree, 335 F.3d at 328-29 (victim’s supervisor participated in harassment); EEOC v. R&R Ventures, 244 F.3d 334, 340 (4th Cir. 2001) (harasser “‘was an adult male in a supervisory position over young women barely half his age’”); Fairbrook, 609 F.3d at 331 (harasser was victim’s immediate supervisor and sole owner of the defendant company)). Thus, the court reasoned, “the conduct alleged by Walker ‘does not remotely resemble the repeated harassing conduct by someone in a position of authority that was described in other cases.’” Id. (quoting Ziskie, 547 F.3d at 228). Accordingly, the court granted summary judgment to the defendant, observing that “the workplace Walker describes, ‘though crude, is not the hellish environment against which Title VII protects.’” II-JA-1014-15 (quoting Greene v. A. Duie Pyle, Inc., 371 F. Supp. 2d 759, 763 (D. Md. 2005)).

ARGUMENT

The District Court Erred In Ruling that No Reasonable Jury Could Find that Walker Was Subjected to Actionable Severe or Pervasive Harassment On the Basis of Her Sex.

“A sexual harassment claim due to a hostile or abusive work environment requires proof of: (1) unwelcome conduct; (2) that is based on the plaintiff’s sex; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 192 (4th Cir. 2000) (quoting Spicer v. Commonwealth of Va. Dep't of Corrs., 66 F.3d 705, 709-10 (4th Cir. 1995) (en banc) (citing Harris, 510 U.S. at 21)). Echoing the Supreme Court’s teachings in Harris, this Court has explained, “we must look at all the circumstances to determine whether a work environment is hostile or abusive, including: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with the plaintiff's work performance; and (5) what psychological harm, if any, resulted.” Id. (citing Harris, 510 U.S. at 23). Noting that this test “is not, and by its nature cannot be, [] mathematically precise,” the Harris Court further clarified that, “while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” 510 U.S. at 23 (emphasis added).

Purporting to rely on this Court’s extensive precedent addressing Title VII hostile work environments, the district court concluded that no reasonable jury could find that Walker suffered actionable harassment. While it was certainly appropriate for the district court to base its analysis on this Court’s precedent, it reached its ultimate conclusion by taking selective aspects of that precedent out of context. Specifically, the district court failed to analyze whether Walker’s harassment was sufficiently severe or pervasive to be actionable, as the Supreme Court and this Court both require, instead merely concluding that the harassment was not severe. The court then compounded its error by treating specific facts present in other cases as prerequisites for proof of a hostile work environment, or as themselves dispositive of the severity issue. The Commission addresses each legal error in turn.

A. The District Court Erred in Treating the Most Egregious Cases and Facts As Establishing a Baseline For Actionable Harassment.

The district court erroneously treated certain of this Court’s cases involving particularly egregious harassment as establishing a baseline for an actionable hostile work environment, when the cases themselves do not purport to do so. See II-JA-1009-12. This Court has specifically criticized this approach to analyzing hostile work environment claims:

On appeal, [the defendant] … undertakes to defend the district court’s summary judgment on the issue of severity/ pervasiveness by cataloging some of the myriad cases that have come before this court and involved behavior considerably more offensive and opprobrious than that shown here. While this tack is understandable, and assuming that other cases involve more heinous behavior in male dominated workplaces than that shown here, we have never held that a weak case is necessarily one that should be disposed of on summary judgment. The question at the summary judgment stage is not whether a jury is sure to find a verdict for the plaintiff; the question is whether a reasonable jury could rationally so find.

Hoyle v. Freightliner, LLC, 650 F.3d 321, 334 (4th Cir. 2011); see also, e.g., Harris, 510 U.S. at 22 (observing that “[t]he appalling conduct alleged in Meritor, and the reference in that case to environments ‘so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,’ merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.”) (internal citations and quotation marks omitted).

The district court then compounded this error by overly relying on several specific factors that this Court has held may contribute to an actionable hostile work environment, but are by no means a prerequisite for such a claim. For example, the district court emphasized that Walker was not physically threatened or propositioned for sex, and that the harassment did not interfere with her work performance, among other reasons, in rejecting Walker’s claim. II-JA-1011-13. This Court has made clear, however, that none of these factors is dispositive or even necessarily important to a hostile work environment case. See, e.g., EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008) (“While the presence of physical threats undeniably strengthens a hostile work environment claim, we have not held that such evidence is required.”) (internal citations and quotation marks omitted); White v. BFI Waste Servs., 375 F.3d 288, 298 n.6 (4th Cir. 2004) (“Names can hurt as much as sticks and stones, and the Supreme Court has never indicated that the humiliation so frequently attached to hostile environments need be accompanied by physical threat or force.”); Hoyle, 650 F.3d at 334 (“[T]he district court’s consideration that the conduct of Hoyle’s co-workers was ‘not physically threatening,’ while certainly an appropriate factor in assessing a plaintiff’s evidence, is not controlling. Actionable harassment can be severe and/or pervasive without being physically threatening, e.g., where it is humiliating and demeaning.”); Fairbrook, 609 F.3d at 330 (“The fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s…. The critical inquiry is not whether work has been impaired, but whether working conditions have been discriminatorily altered.”) (internal citations and quotation marks omitted); Smith, 202 F.3d at 242 (“A work environment consumed by remarks that intimidate, ridicule, and maliciously demean the status of women can create an environment that is as hostile as an environment that contains unwanted sexual advances.”).

The district court also based its summary judgment ruling, in part, on its observation that there was no “power disparity” between Walker and her harassers. II-JA-1013-14. Although this Court has examined the balance of power as a factor in cases where it was relevant, it has never held that a “power disparity” is a prerequisite for demonstrating coworker harassment. In fact, this Court has reversed grants of summary judgment in numerous cases where one or more coworkers with no supervisory or other authority harassed a colleague. See, e.g., Hoyle, 650 F.3d at 326-27; Ocheltree, 335 F.3d at 328-39; EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 170 (4th Cir. 2009).[2] Moreover, in Ziskie, the principal “power disparity” case on which the district court relied, this Court did not say that such a disparity was a prerequisite for a coworker harassment claim; rather, the panel simply noted that “[s]everity inquiries in our earlier cases have often involved a disparity in power between the harasser and the victim,” and explained that “[u]nlike those cases, Ziskie alleges harassment almost entirely by her co-workers, not her supervisors.” 547 F.3d at 228.

Lastly, the district court erred insofar as it suggested that a hostile work environment must be “hellish” in order to be actionable. II-JA-1014-15. Although a few courts have used this term, the fact that some hostile work environments may be “hellish” (a vague and subjective term at best) does not establish a baseline for all hostile work environments.

This Court has never held that an actionable hostile work environment must be “hellish.” On two occasions, this Court cited a single panel decision of the Seventh Circuit for the proposition that Title VII is designed to “‘protect working women from the kind of male attentions that can make the workplace hellish for women.’” Ocheltree, 335 F.3d at 333 (quoting Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995)); Anderson v. G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002) (same).[3] However, the Seventh Circuit itself has since clarified that no “hellishness” requirement exists:

[W]e note that all parties in this case seem to think that a working environment must be “hellish” before a Title VII suit can succeed. The Supreme Court’s decision in Harris establishes that something short of the Ninth Ring may violate the statute …. We trust that in the future counsel will avoid the use of a single, overwrought word like “hellish” to describe the workplace and focus on the question whether a protected group is experiencing abuse in the workplace, on account of their protected characteristic, to the detriment of their job performance or advancement.

Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007) (internal quotation and citation omitted).

B. The District Court Failed to Consider Severity and Pervasiveness In Tandem, and In the Alternative.

The district court’s most significant error in this case was its failure to analyze Walker’s harassment claim in light of the governing legal standard, which states that the harassment must be “‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (emphasis added). Although the court did quote the correct “severe or pervasive” language from Harris, II-JA-1008, it dedicated most of its opinion to the severity issue, barely mentioned pervasiveness at all, and failed to address how severity and pervasiveness interrelate in a hostile work environment analysis.

The district court’s failure to evaluate the pervasiveness component of the harassment is critical. This Court has repeatedly, and correctly, recognized the Supreme Court’s articulation of the “severe or pervasive” standard, with the terms in the disjunctive. See, e.g., Fairbrook, 609 F.3d at 327; Cent. Wholesalers, 573 F.3d at 176-77; Ocheltree, 335 F.3d at 331. Moreover, as the EEOC and the courts have frequently noted, the concepts of severity and pervasiveness are complementary and inversely related in a hostile work environment analysis: the more severe the conduct, the lesser the requisite showing of pervasiveness, and vice versa. E.g., Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008) (observing that severity and pervasiveness “‘are, to a certain degree inversely related; a sufficiently severe episode may occur as rarely as once … , while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute.’”) (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944, 951 (7th Cir. 2005)); Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007) (“[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”) (internal citation and quotation marks omitted); EEOC v. Nat’l Educ. Ass’n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) (same); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, 2 EEOC Compliance Manual (BNA) (1990), available at http://www.eeoc.gov/policy/docs/currentissues.html (“the more severe the harassment, the less need to show a repetitive series of incidents”).

Viewed in this light, a reasonable jury could readily find that Walker experienced pervasive sexual harassment at Mod-U-Kraf. The harassment described in the record was frequent, regular, and persistent, and was interrupted only by periods when Walker either did not work at Mod-U-Kraf or was physically separated from her harassers there. E.g., I-JA-417 (Mullins and others snickered, stuck their tongues out, and said “hey, come here” to Walker and other female employees whenever they walked past); I-JA-419 (Mullins’ harassment stopped only when Walker was assigned to work outside the plant); I-JA-447-48 (Mullins grabbed his crotch and made “these nuts” comments to Walker “two or three times a week”); I-JA-454-55 (Young made sexual comments to Walker “every day” beginning in March/April 2011); I-JA-559 (Mullins “grabbing [himself] and hollering, oh, oh, oh”); I-JA-614 (Cassidy testimony that Mullins and Young harassed Walker “probably every other day two or three times a day”); I-JA-288, 507, II-JA-620 (“blow job” incident of June 16, 2011); I-JA-472, II-JA-630 (“wiener in the mouth” incident of July 20, 2011).

The harassing conduct alleged here is at the very least comparable to, if not more pervasive than, that in other comparable cases this Court has held actionable. See, e.g., Okoli, 648 F.3d at 220 (“Viewing the facts in the light most favorable to Okoli, she suffered upwards of twelve (12) incidents in just four months.”); Hoyle, 650 F.3d at 326-27, 334 (during a six-month period, plaintiff alleged four specific instances of non-physical harassment plus intermittent display of sexually explicit photos); Smith, 202 F.3d at 243 (harasser “made many of the remarks at least once a month when Smith worked at First Union”).

By contrast, the harassment Walker alleged was significantly more pervasive than that this Court has held insufficient to withstand summary judgment. E.g., Burns v. AAF-McQuay, Inc., 166 F.3d 292, 295 (4th Cir. 1999) (rejecting age harassment claim based on a total of three age-related remarks) (“Although the number of incidents alone [cannot] serve as the basis for evaluating hostility, the scant number and generally mild nature of the incidents in this case combine to make the evidence insufficient.”); Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997) (harassment claim held not actionable based on a total of four remarks made over the course of three months).

Thus, the district court erred in rejecting Walker’s hostile work environment claim without assessing the pervasiveness of the alleged harassment. Viewing the record evidence in light of the totality of the circumstances, as the law requires, a reasonable jury could find that the harassment Walker experienced was sufficiently pervasive to create an actionable hostile work environment.

The district court also erred insofar as it suggested that Walker could not show that the harassment she experienced was objectively “severe or pervasive” because of her history of anxiety and depression. The plaintiff’s mental health history is totally irrelevant to the question of objective severity. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (explaining that objective severity “should be judged from the perspective of a reasonable person in the plaintiff’s position”); Okoli, 648 F.3d at 222 (same); Hoyle, 650 F.3d at 333 (same). In other words, the objective standard asks what a hypothetical “reasonable person” would experience—not what the plaintiff’s particular mental state was.

While Walker’s history of anxiety and depression might be relevant to a determination of compensatory damages, it would not preclude a damages award based on a jury finding that the harassment exacerbated her pre-existing conditions. Indeed, this Court affirmed a jury award of compensatory damages to a plaintiff in a hostile work environment case under the same circumstances. Fox v. Gen. Motors Corp., 247 F.3d 169, 180 (4th Cir. 2001) (“Although Fox’s depression admittedly had other causes, … there can be no doubt that it was at least in part attributable to the hostile work environment at GM. Furthermore, the worsening of Fox’s back injury, which led to increased pain and suffering, appears to have been triggered solely by the harassment Fox experienced at work.”). See also Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, Sec. II(A)(2) (1992), at http://www.eeoc.gov/policy/docs/damages.html (“[I]f a complaining party had preexisting emotional difficulties and his mental health deteriorates as a result of the discriminatory conduct, the additional harm may be attributed to the respondent.”).

C. The District Court Failed to View the Record Evidence In Light of the Totality of the Circumstances.

The district court also erred insofar as it conducted its severity analysis without proper regard for the “totality of the circumstances” of Walker’s work environment. See Conner, 227 F.3d at 192 (citing Harris, 510 U.S. at 23) . Instead, the court impermissibly disaggregated the evidence of different types of conduct, holding that each category of conduct (the “these nuts” comments, the less frequent but more explicit sexual comments) was insufficiently severe, and then concluded that the whole environment was therefore not actionable. See II-JA-1012 (categorizing Mullins’ and Young’s “these nuts” and crotch-grabbing incidents as “inappropriate and unprofessional, but … not so extreme as to amount to a change in the terms and conditions of Walker’s employment”); id. (stating that Mullins’ “blow job,” “wiener in the mouth,” and “bet you could holler real loud” comments were too isolated and offhand to constitute actionable sexual harassment).

This Court and other courts have criticized this divide-and-conquer approach, explaining that it fails to account for the totality of the circumstances affecting the victim of harassment. E.g., Conner, 227 F.3d at 193 (“[T]he district court erred when it analyzed these categories of Ms. Conner’s evidence in a disaggregated fashion, contrary to Harris’s “totality of the circumstances” test.”); Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (“[T]he totality-of-circumstances test must be construed to mean that even where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation.”); id. at 564 (holding that non-sex-specific pranks played on plaintiff, “[r]ather than constituting merely oafish behavior, … [and] seen as part of the ‘constellation of surrounding circumstances,’ … could well be viewed as work-sabotaging behavior that creates a hostile work environment.”) (internal citation omitted).

Along the same lines, the district court erred in dismissing the impact of harassing remarks that, according to the court, were “not directed at Walker exclusively.” II-JA-1012. This Court has observed repeatedly that the appropriate inquiry is whether the work environment as a whole is hostile, not whether comments of which the plaintiff was aware were “directed at” her. See, e.g., Harris, 429 F. App’x at 200 (“We recognized that ‘the critical inquiry is whether the plaintiff’s environment was hostile … “because of” her sex’ and not solely on [sic] whether the conduct was directed at the plaintiff.”) (quoting Hoyle, 650 F.3d at 332); Ziskie, 547 F.3d at 224 (“In Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001), we rejected the contention that only conduct directed at the plaintiff could be considered in evaluating a hostile work environment claim. Rather the inquiry was the nature of the workplace environment ….”).

The district court further erred to the extent it disregarded harassing remarks that Mullins, Young, and others made to both men and women. [4] As this Court and other courts have noted, the mere fact that an employee is abusive to both men and women does not allow the employer to escape liability in circumstances where the harasser treats individuals differently on the basis of sex. See, e.g., R&R Ventures, 244 F.3d at 338-39 (harasser was not “equal opportunity harasser” where he was abusive to both sexes but “directed his sexually pointed comments exclusively to” women); see also, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (“[A] member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with generally indiscriminate vulgar conduct. Title VII does not offer boorish employers a free pass to discriminate against their employees specifically on account of gender just because they have tolerated pervasive but indiscriminate profanity as well.”).

Viewing the facts in the record in the light most favorable to Walker, as required on summary judgment, a reasonable jury could find that Mullins, Young, and others harassed Walker and other female coworkers in different and more sex-specific terms than they did their male coworkers. Although Cassidy did testify that Mullins and Young made their “these nuts” comments to both men and women, these were not the sole allegations of harassment in the record. There is no record evidence that Mullins, Young, or anyone else at Mod-U-Kraf ever called a male coworker “fresh meat,” repeatedly licked his lips at a male coworker and tried to get him to come closer, speculated about how a male coworker would perform in bed (“[o]h, I bet you could holler real loud, couldn’t you”), advertised a male coworker’s availability for a blow job, or publicly told a male coworker he had a “wiener in [his] mouth.” A reasonable jury could view these facts and conclude that Walker was harassed in sex-specific terms different from those directed at her male coworkers.

Moreover, even assuming, arguendo, that Walker and her male coworkers were exposed to comparable language and behavior, she would still be able to demonstrate a sex-based hostile work environment if she could show that a reasonable woman in her position would experience the same treatment differently than would a man. As the Supreme Court observed:

[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances…. [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target…. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing …, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.

Oncale, 523 U.S. at 81-82.

Accordingly, this Court has held, with the evidence viewed in the proper context, a female plaintiff may recover for a hostile work environment based on conduct and remarks made to both sexes. See, e.g., Ocheltree, 335 F.3d at 332 (holding that female plaintiff had actionable hostile work environment claim based on sexual remarks and gestures made in front of a mixed audience where “[m]uch of the conduct, a jury could find, was particularly offensive to women and was intended to provoke Ocheltree’s reaction as a woman”); Hoyle, 650 F.3d at 332 (explicit images displayed to mixed audience held actionable by female plaintiff, regardless of whether men in the workplace may also have found them offensive) (citing and quoting Ocheltree).

Other courts have agreed, holding that a harasser’s targeting of both male and female victims does not preclude a claim of sex-based harassment where the conduct in question, viewed in light of the totality of the circumstances, would impact a woman differently than it would a man. The Ninth Circuit has considered this issue on multiple occasions, and in great detail. See, e.g., NEA, Alaska, 422 F.3d at 845-46 (holding that “evidence of differences in subjective effects (along with, of course, evidence of differences in objective quality and quantity) is relevant to determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific”); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (observing that “even if [the harasser] used sexual epithets equal in intensity and in an equally degrading manner against male employees, he cannot thereby ‘cure’ his conduct toward women”); Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991) (“A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women.”).

Other appellate courts have reached the same conclusion. See, e.g., Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (“The mere fact that men and women are both exposed to the same offensive circumstances on the job site [] does not mean that, as a matter of law, their work conditions are necessarily equally harsh. The objective hostility of a work environment depends on the totality of the circumstances.”); Beard v. Flying J, Inc., 266 F.3d 792, 798 (8th Cir. 2001) (“Flying J next contends that the harassment was not based on sex because Mr. Krout harassed male employees by occasionally giving them so-called ‘titty-twisters’ and speaking to them in sexual terms…. We observe, first of all, that this conduct is not the same as what occurred to Ms. Beard, partly because it is probably not sexual, and in any case it carries an entirely different cultural and contextual message.”).[5]

The record in this case depicts a workplace where Walker was subjected, several times a week over the course of more than a year, to hostile and unwelcome sex-based or sexual remarks and gestures by male coworkers. Some of the remarks were more sexually explicit and targeted Walker and/or other women specifically (e.g., “fresh meat,” “I bet you could holler real loud,” “blow job,” and “wiener in the mouth”), while others (the “these nuts” comments) were more broadly directed throughout the workplace. A reasonable jury, considering all the evidence together, could find that the more explicit, sex-specific comments informed Walker’s experience of the other remarks and contributed to the hostility of her working environment at Mod-U-Kraf. See supra at 29.

CONCLUSION

For the foregoing reasons, the judgment of the district court with respect to Walker’s hostile work environment claim should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

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s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: May 19, 2014

[1] The Commission takes no position with respect to any other issue presented in this appeal.

[2] The district court included Ocheltree on its list of “power disparity” cases. This characterization of Ocheltree is misleading at best, since the sum total of the supervisor’s “participation” was that he laughed at one of many incidents of coworker harassment. 335 F.3d at 328. The rest of the harassment in Ocheltree was perpetrated by coworkers with no authority over the plaintiff. Id. at 328-29.

[3] Greene, the District of Maryland “hellishness” case cited by the district court here, was affirmed by this Court in an unpublished decision. Greene v. A. Duie Pyle, Inc., 170 F. App’x 853 (4th Cir. 2006). However, this Court made no mention of the “hellishness” standard on appeal.

[4] The district court stated in its opinion that it “need not address the defendant’s argument that Walker has also failed to demonstrate that the offending conduct was based on her sex.” II-JA-1008. However, later in the same decision, the court appeared to rest its finding that Walker had failed to demonstrate severe or pervasive harassment, in part, on its observation that Mullins’ and Young’s remarks “were [] made to male and female employees alike.” II-JA-1012.

[5] But see, e.g., Holman v. Indiana, 211 F.3d 399, 403-04 (7th Cir. 2000) (stating that the Seventh Circuit’s view that a harasser who targets both sexes is not acting “because of sex” in violation of Title VII).