California Legal Team
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
R&R VENTURES, INC.,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the District of Maryland
_________________________________________________
REPLY BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
_________________________________________________
INTRODUCTION
The Commission alleges in this action that R&R Ventures
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e
et seq., by subjecting Shelby Scott, Brandyn Potter, and other female
employees of defendant's Severna Park Taco Bell restaurant to a sexually
hostile work environment, and by retaliating against Scott and Potter for
complaining about the harassment. The district court granted defendant's
motion for summary judgment, holding that the charges on which the suit
was based were untimely; the evidence did not establish actionable sexual
harassment; and the Commission failed to establish a causal connection
between the complaints of harassment and the adverse employment actions
taken.
In our opening brief, we explained why each of these rulings was
erroneous. We pointed out that this government enforcement action
can be based entirely on Scott's charge which was indisputably timely
because it was filed only 106 days after the last alleged act of
discrimination. EEOC Br. at 24-26. On the merits, we detailed the
substantial evidence in the record that supports a finding that Scott,
Potter, and other female employees were subjected to a sexually hostile
work environment at the Severna Park Taco Bell for which the defendant
is liable. EEOC Br. at 27-37. We also argued that the judgment may
not be affirmed on the alternative ground advanced by defendant below
- that R&R Ventures is not liable for the conduct of its manager Edwin
Wheeler - because the evidence does not establish that the company
took reasonable care to prevent and correct sexual harassment or that
the victims unreasonably failed to take advantage of any corrective
opportunities available. EEOC Br. at 37-45. Finally, we argued that
there was sufficient evidence to support a finding that the defendant
took adverse actions against Scott and Potter because they complained
about Wheeler's sexual harassment. EEOC Br. at 45-49.
In its brief as appellee, R&R Ventures does not directly respond to
most of the Commission's arguments. For example, it does not dispute
that Scott's charge was filed within the time prescribed by Title VII
and that this action may be based entirely on that charge. Instead,
R&R Ventures raises another, equally baseless procedural objection -
that Scott's charge was not served on R&R Ventures within ten days.
On the merits, R&R Ventures at no point argues that no reasonable
fact finder could have concluded that female employees were subjected
to a hostile work environment at the Severna Park Taco Bell. Instead,
defendant simply ignores most of the evidence relied on by the Commission
and points instead to other evidence, most of which is mischaracterized
or taken out of context, which arguably supports its version of events.
At best, this approach merely demonstrates that there are factual
questions that cannot be decided on summary judgment. Similarly, R&R
Ventures argues it has established an affirmative defense to liability
but ignores conflicting evidence as to whether it took reasonable steps
to prevent and correct sexual harassment and whether the targets of
Wheeler's conduct unreasonably failed to take advantage of defendant's
corrective measures. Except for denying in a footnote that there was
retaliation, defendant also fails to respond to the Commission's argument
that the district court erred in dismissing our retaliation claim.
We submit this reply to respond to several new arguments raised by
the defendant and to refocus the discussion on the issues raised by
the Commission's appeal and the evidence supporting the Commission's
arguments.
ARGUMENT
1. The district court gave as one reason for dismissing this action that
the charges on which it is based were not timely filed. We argued that
this was wrong because this action may be based entirely on Scott's
charge, and Scott's charge was filed within the 300-day time limit
imposed by � 706(e) of Title VII. EEOC Br. at 24-26. R&R Ventures
does not dispute either of these propositions. Instead, it raises a
different procedural objection - that Scott's charge was not served
on R&R Ventures within ten days as required by � 706(b) of Title VII.
See R&R Br. at 19-20. This argument is both factually and legally
meritless.
First, as we pointed out in our opening brief, the record establishes
that the Commission served the notice of Scott's charge on February 18,
1997, eight days after it was filed on February 10, 1997. See EEOC
Br. at 25 & n.7 (citing II JA 1264-65 (EEOC Charge)). R&R Ventures does
not dispute that the record is as the Commission represents. Instead,
R&R Ventures criticizes the Commission for not specifically stating in
district court that the February 10, 1997, date-stamp appears on the
back of Scott's charge.<1> See R&R Br. at 19. In our brief opposing
R&R Ventures' motion for summary judgment, however, we stated that
the charge was received by the Commission on February 10, 1997, and
cited Scott's charge. See R. 23 (EEOC Opposition to Summary Judgment
at 6). Nothing more was required. R&R Ventures also suggests that the
date-stamp on the charge should be disregarded because the Commission
did not provide "an affidavit or other sworn statement" attesting to
its validity. R&R Br. at 19-20. No affidavit authenticating Scott's
charge is required. See Fed. R. Evid. 803 (8) & 901 (b)(7); see also
Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999)
(court may presume that public records are authentic and trustworthy,
and the burden of establishing otherwise falls on the opponent of
the evidence, who must come forward with enough negative factors to
persuade a court that a document should not be admitted). Thus, the
record establishes that the Commission served the notice of Scott's
charge within ten days from the filing date.
Moreover, even if there were a factual basis for R&R Ventures' argument
that the charge was not served within ten days, that would not be a
ground for dismissing this action. The courts have uniformly held
that the Commission's failure to serve notice within ten days is not
a bar to suit absent bad faith or prejudice to the employer. See EEOC
v. Shell Oil Co., 466 U.S. 54, 66 n.16 (1984); EEOC v. U.S. Fidelity &
Guaranty Co., 420 F. Supp. 244, 249-50 (D. Md. 1976), aff'd 538 F.2d
324 (4th Cir. 1976) (10-day notice requirement not mandatory); EEOC
v. Wayside World Corp., 646 F. Supp. 86, 88 (W.D. Va. 1986) (showing of
"substantial" prejudice required to bar suit). See also EEOC v. Airguide
Corp., 539 F.2d 1038, 1042 (5th Cir. 1976) (clear showing of substantial
prejudice required before suit will be barred); EEOC v. Burlington
Northern, Inc., 644 F.2d 717, 720-21 (8th Cir. 1981) (untimely notice
of charge not an absolute and automatic bar to an EEOC enforcement
action). R&R Ventures does not argue that it was prejudiced by the
delay it asserts occurred in the service of Scott's charge, nor could
it conceivably establish prejudice on the basis of such a short delay.
See, e.g., U.S. Fidelity & Guaranty Co., 420 F. Supp. at 249-250 (claim
was not barred where notice was served ten months after charge received
where no prejudice was shown). Accordingly, the Commission's action
is properly based on Scott's timely-filed charge of discrimination.
2. In its opening brief, the Commission set out in detail the extensive
evidence supporting each element of the claim that R&R Ventures violated
Title VII by subjecting female employees at its Severna Park store
to a sexually hostile work environment. We argued that, contrary to
the district court's ruling, this evidence is sufficient to support
a jury verdict in the Commission's favor. See EEOC Br. at 27-37.
R&R Ventures does not directly respond to the Commission's argument;
it makes no effort to demonstrate that the summary of the record in
the Commission's brief is inaccurate or that the Commission misstates
the elements of a hostile environment claim. Instead, R&R Ventures
offers an alternative version of events based on selective, and often
misleading, citations to the record. Then, ignoring the fact that
this case was dismissed on summary judgment, R&R Ventures argues that
its story is the more credible. Even if R&R Ventures' summary of the
facts were accurate, it would merely confirm that there are material
issues of fact and summary judgment was inappropriate. However, as
we demonstrate below, R&R Ventures presents a distorted and misleading
statement of the record.
Although R&R Ventures acknowledges in its argument headings and statement
of the standard of review that this is an appeal from a grant of summary
judgment, it completely loses sight of that fact in its argument.
It is important, therefore, to reiterate the correct standard
of review. Summary judgment is appropriate only if "'a reasonable
trier of fact could draw only one conclusion from the evidence.'"
Conner v. Schrader-Bridgeport Int'l, Inc., 2000 WL 1287904, at *8 (4th
Cir. Sept. 13, 2000) (quoting Brown v. CSX Transp., Inc., 18 F.3d 245,
248 (4th Cir. 1994)). In reviewing a grant of summary judgment, a court
must accept as true the evidence proffered by the non-moving party, and
"[i]f, giving the non-movant the benefit of every legitimate inference in
her favor, there was evidence upon which the jury could reasonably return
a verdict for her, [the Court] must reverse the judgment below." Id.
In this case, therefore, the question on appeal is whether, crediting
the Commission's evidence and drawing all legitimate inferences in
the Commission's favor, a reasonable jury could find that Wheeler's
harassment of female employees was sufficiently egregious to constitute
unlawful sex discrimination. We argued in our opening brief that the
answer to that question is yes. R&R Ventures' response entirely misses
the point.
First, R&R Ventures argues that no Title VII violation occurred because
working for Wheeler was "an unpleasant and unrewarding experience,
for both male and female employees." R&R Br. at 23. It supports this
argument by citation to some evidence that Wheeler was at times verbally
abusive to male employees. However, R&R Ventures simply ignores the
extensive evidence summarized in the Commission's opening brief that:
Wheeler reserved inappropriate sexual and sexist comments and innuendo
for female employees; Wheeler closely examined and commented on young
female employees' bodies, often in front of others; Wheeler repeatedly
asserted that women are stupid and less capable than men. See EEOC
Br. at 30-31 (citing record). When this evidence is considered along
with the evidence selectively cited by R&R Ventures, it is clear that
there is sufficient evidence to support a finding that female employees
were "exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed." Harris v. Forklift
Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).
Second, R&R Ventures asserts that the alleged harassment was not
sufficiently severe or pervasive because "[n]one of the claimants
could recall more than one or two incidents of alleged harassment
. . . and none of those few incidents could be characterized as
particularly offensive or egregious." R&R Br. at 15. In support of
this assertion, R&R Ventures mischaracterizes several statements in the
record and ignores substantial evidence to the contrary. For example,
R&R Ventures' statement that "Wheeler also occasionally made jokes and
comments of an inappropriate (and sometimes sexual) nature" is flatly
inconsistent with the record. R&R Br. at 23. Scott testified that
Wheeler "constantly, every single day" told her "about how nice of a
butt I had and how much guys would love to just spank me or how much I
should try it," I JA 722 (Scott Dep. at 159), and that "at least once
a day" when she bent over, Wheeler told her she was "giving him a cheap
thrill" and "usually it was followed by something else, but every day it
was different." I JA 697-98 (Scott Dep. at 134-35). When asked about
Wheeler's sexual comments during her deposition, Scott testified that
"[t]here were many. Just talking about sexual experiences, positions.
He'd talk about anything." I JA 700 (Scott Dep. at 137).
Defendant also incorrectly represents that Potter "could recall only
two specific incidents" of harassment -- that Wheeler had complained how
long it had been since he had sex and that his girlfriend was bisexual.
R&R Br. at 28 n.16. Defendant misunderstands Potter's testimony.
These two comments were examples of the types of sexual comments
to which Wheeler subjected Potter whenever they worked together.
Potter testified that Wheeler "would talk about his personal life to
me and that included his sex life and inquiries into mine," went on to
give the above comments as examples, and also stated "He'd make jokes,
sexual jokes." I JA 463 (Potter Dep. at 41). When asked how often
Wheeler made sexual comments and jokes, she replied: "Daily. At least
daily if not every other day." I JA 562 (Potter Dep. at 140). Thus, R&R
Ventures' assertion that there is insufficient evidence that Wheeler's
harassment of female employees was pervasive is contrary to the record.
R&R Ventures also argues that the alleged harassment was not severe
because there is "absolutely no evidence that Wheeler or any other R&R
employee ever touched Scott, Potter or Wright; that he made any overt
sexual proposition or physical threats toward them; or that any alleged
conduct unreasonably interfered with their work performance." R&R
Br. at 26. Once again, R&R Ventures simply ignores contrary evidence.
Pedro McKee testified that Scott complained Wheeler "had touched her
and that he used to brush up against her." I JA 301 (McKee Dep. at 21).
McKee also witnessed Wheeler hugging two female employees against their
will. I JA 299-300 (McKee Dep. at 19-20). Scott's mother testified
that she saw Wheeler touch a female employee's breast inappropriately.
I JA 354 (Mooney Dep. at 39). A jury could also view the evidence
that Wheeler flirted with and "hit on" young female employees (I JA
455-56, 463 (Potter Dep. at 33-34, 41); I JA 694 (Scott Dep. at 131)),
and repeatedly asked Scott if she liked to be spanked, I JA 698, 722
(Scott Dep. at 135, 159), as sexual propositions and physical threats.
Furthermore, as the Commission emphasized in its opening brief,
verbal harassment alone may constitute a hostile work environment.
See Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000).
To be actionable, a harasser's conduct must alter the conditions of
employment and make the job harder to do. Harris, 510 U.S. at 25
(Ginsburg, J., concurring). There is no requirement that a victims'
work performance suffer. Id. (Scalia, J., concurring) (test is not
whether work has been impaired, but whether working conditions have been
discriminatorily altered). Wheeler's behavior towards subordinate female
employees half his age could certainly be assessed by a reasonable fact
finder as "overtly sexist, grossly demeaning, or physically threatening
in nature." R&R Br. at 29 n.17 (comparing the instant case to Smith,
202 F.3d at 243).
R&R Ventures distorts the victims' testimony in an effort to show that
they did not regard Wheeler's harassment as particularly upsetting.
Again, the record belies this assertion. For example, Scott never
indicated that Wheeler's conduct "was not particularly upsetting."<2>
R&R Br. at 4. On the contrary, Scott testified that "I just didn't like
it . . . I didn't like the sexual jokes . . . I didn't feel that it was
appropriate," I JA 700 (Scott Dep. at 137), and that "the sexual jokes,
the position jokes" and the way Wheeler talked about sex "offended me."
I JA 702 (Scott Dep. at 139).<3> Scott cried in response to Wheeler's
conduct, I JA 748, 752 (Scott Dep. at 185, 189), and lost a significant
amount weight to avoid drawing attention to her body. I JA 788-91 (Scott
Dep. at 225-28). Potter testified that she was " absolutely petrified"
and "terrified" of Wheeler, (I JA 484, 561 (Potter Dep. at 62, 139)),
that "emotionally I was a wreck" and that she would cry every morning
because she had to go to work and see Wheeler. I JA 483 (Potter Dep. at
61). Contrary to defendant's assertion, Potter in no way "admitted that
she never told Wheeler to stop telling jokes or making comments." R&R
Br. at 9. Potter testified that she complained to Wheeler one of the
times he commented about his bisexual girlfriend, and in response to
her complaint, Wheeler became "really vicious overnight." I JA 463-64
(Potter Dep. at 41-42). Eventually Potter no longer could tolerate
working with him. I JA 484-85 (Potter Dep. at 61-62). This evidence and
additional testimony cited in our opening brief, see EEOC Br. at 31-35,
demonstrates that there is sufficient evidence for a jury to find that
Wheeler's harassment altered the victims' conditions of employment.
Defendant can argue its unique version of the facts to a jury, but its
misleading assessment of the evidence only demonstrates why the district
court erred in granting summary judgment.<4>
3. Although the district court did not address R&R Ventures' argument
that it established the affirmative defense outlined in Burlington
Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), the Commission argued in its opening brief
that this Court may not affirm on that basis because R&R Ventures failed
to establish either prong of the defense. We noted that R&R Ventures,
as the party bearing the burden of proof on the issue, is entitled to
summary judgment only if the evidence in the record compels a finding
that it has met every element of the defense. See EEOC Br. at 37-38.
We argued that R&R Ventures failed to establish that it had an effective
policy against sexual harassment because, as we explained at length,
there is extensive evidence that its policy was not disseminated, was
not the subject of employee training, and was ineffective on its face.
EEOC Br. at 38-43 (citing to record). In response, R&R Ventures once
again merely gives its version of events and ignores all contrary
evidence in the record.
R&R Ventures argues that it took reasonable care to prevent sexual
harassment by having and disseminating a sexual harassment policy and by
investigating Scott's claim of sexual harassment and transferring Potter
away from Wheeler when she complained. See R&R Br. at 33-34. However,
R&R Ventures simply ignores the evidence set out in the Commission's
opening brief detailing deficiencies in R&R Ventures' policies. For
example, R&R Ventures' Area Manager, who is now Director of Operations,
testified that the company does not provide management employees with
sexual harassment training, I JA 113 (Lee Dep. at 35), and that there
is no procedure in place for handling sexual harassment complaints.
I JA 97 (Lee Dep. at 19). The policy fails to provide names or phone
numbers of persons to contact if one is harassed; directs employees
to report sexual harassment to their "immediate supervisor or above"
but does not specify who "above" is; fails to instruct supervisors to
report complaints to the appropriate company personnel; and fails to
promise confidentiality or protection from retaliation. See II JA 1263
(Policy).
Similarly, R&R Ventures asserts that, once it learned of Scott's
complaints of harassment, it "took prompt and reasonable steps to
investigate and deal with the situation." R&R Br. at 35 (footnote
omitted). However, a jury could find that defendant's actions were
far from adequate. When Scott complained of Wheeler's behavior, Lee's
wife<5> called several female employees to ask if they had experienced
problems with Wheeler, but did not interview Scott or Wheeler, the two
people most likely to have information relevant to Scott's allegations.
I JA 153 (Lee Dep. at 73). A fact finder could assess this response
as inadequate. See Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d
1126, 1131-32 (4th Cir. 1995) (where employer interviewed harasser but
failed to warn, reprimand, or counsel harasser, court determined that
the investigation was "superficial" and fell "far short of that taken
by other employers in harassment cases."). Furthermore, contrary
to the inference in R&R Ventures' brief (see R&R Br. at 35 & 42),
it is undisputed that R&R Ventures did not fire Wheeler because of the
allegations of sexual harassment. Wheeler was fired because of poor job
performance. I JA 76 (Heller Dep. at 59). Accordingly, his termination
was not part of R&R Ventures' response to the sexual harassment problem.
R&R Ventures' argument that Scott, Potter and Wright unreasonably
failed to take advantage of opportunities to correct the problems
caused by Wheeler is also based on selective and misleading citations
to the record. There is ample undisputed evidence that the victims of
Wheeler's harassment repeatedly complained to supervisors and managers
at R&R Ventures. Although Wright did not formally complain, manager
Mareia Waddy heard Wright complaining about Wheeler to other female
employees and volunteered that that is how Wheeler is. II JA 1235
(Wright Dep. at 81). Scott told every manager at the Taco Bell about
Wheeler's inappropriate sexual behavior. See I JA 747-48 (Scott Dep. at
184-85); I JA 707, 801 (Scott Dep. at 144, 238); I JA 725, 733, 735-36,
799-800 (Scott Dep. at 162, 170, 171, 172-73, 236-37); I JA 733, 734,
800-801 (Scott Dep. at 169, 171, 237-38); I JA 732-33, 736, 799-800
(Scott Dep. at 169-70, 173, 236-37). Consistent with principles of
agency, notice to a store manager empowered to act on complaints of
harassment is imputed to the employer. See, e.g., Breda v. Wolf Camera &
Video, 222 F.3d 886, 889 (11th Cir. 2000) (defendant in co-worker sexual
harassment case had actual notice of harassment because supervisor
to whom victim complained had authority to handle complaints); Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 674 (10th Cir. 1998) (employer
had actual notice of co-worker harassment where plaintiff complained
to her maintenance manager and to her first-line supervisor). Because
Scott notified her immediate supervisor as defendant's policy instructs
(II JA 1263), defendant cannot complain that it did not receive notice.
See Breda, 222 F.3d at 890 ("employees of such companies [that instruct
victims to notify store managers] need not be concerned with whether
they pursued their complaints far enough up the company ladder").
In any event, Scott's mother repeatedly left detailed messages with
Mike Lee that female employees were being sexually harassed by Wheeler;
these calls were not returned. I JA 345, 368, 370-78 (Mooney Dep. at
30, 53, 55-63).
Notwithstanding Potter's uncontradicted testimony that it took her two
weeks to obtain Mike Lee's phone number because no manager would give
it to her (I JA 481-83, 521 (Potter Dep. at 59-61, 99)), R&R Ventures
criticizes her for not complaining sooner and erroneously states
that Potter never characterized Wheeler's behavior as sexually based.
R&R Br. at 36. Potter testified that when she met with Mike Lee and
Dennis Heller, "I sat down and told them everything that I just told
you. That he, you know, sexually - made the sexual comments and jokes
initially, that he was verbally assaulting me at this point, that he
was making sexual jokes and comments to the other girls there, both in
my presence and not in my presence because I felt . . . they needed to
know that as well because I had been advised of Shelby Scott's filing a
complaint and I felt that they needed to know that it was still going
on." I JA 479-80 (Potter Dep. at 57-58). R&R Ventures also ignores
evidence that Potter had previously complained to managers Tammy Hartley
(see I JA 485-86, 489 (Potter Dep. at 63-64, 67)), and Mike McCarthy
about Wheeler's sexually offensive behavior towards her and other
female employees. I JA 452 (Potter Dep. at 30).
Accordingly, after the evidence is assessed in the light most favorable
to the Commission, it is clear that the district court could not have
resolved the affirmative defense in favor of defendant on summary
judgment.
4. In our opening brief, we argued that the district court erred in
dismissing our retaliation claim because there is sufficient evidence
to support a finding that adverse actions against Scott and Potter,
including Scott's suspension and the reduction of Potter's hours,
were caused by their complaints that they were being sexually harassed.
EEOC Br. at 45-49. Defendant's only mention of this claim is a cryptic
statement in a footnote that "[f]or the same reasons that the first
prong of the affirmative defense [to liability for Wheeler's sexual
harassment] is satisfied, the Commission's argument regarding the
claimants' 'retaliation' claims must be rejected -- neither Wheeler
nor R&R Ventures took any retaliatory employment action against Scott,
Potter or Wright." See R&R Br. at 33 n.19. This conclusory statement
without any citation to the record or to case law is a manifestly
inadequate response to the Commission's arguments. Accordingly, this
Court should reverse the district court's grant of summary judgment on
the retaliation claim.
5. R&R Ventures includes in its brief an argument that the Commission
is not entitled to back pay, compensatory damages or punitive damages
even if R&R Ventures violated Title VII. These arguments concerning
the specific forms of relief available should the Commission prevail
are not properly before the Court. The district court made no rulings
on the relief issues briefed by R&R Ventures, so there are no district
court rulings to review. R&R Ventures' arguments do not provide an
alternative basis for affirming the judgment since R&R Ventures does not
argue that the Commission would be entitled to no relief if it prevails.
For example, R&R Ventures makes no argument that the Commission could
not obtain injunctive relief if it proves that the company tolerated
severe and pervasive harassment of female employees despite numerous
complaints, as the Commission alleges in this action. The relief issues
raised by R&R Ventures should be left for the district court to address
on remand or for a jury to address at trial.
CONCLUSION
For the foregoing reasons, the judgment of the district court should
be reversed and the case remanded for further proceedings.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
___________________________________
JULIE L. GANTZ
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
October 6, 2000
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been
prepared in monospaced (nonproportionally spaced) typeface using Corel
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in completing this certificate can result in the Court's striking the
brief and imposing sanctions. If the Court so directs, I will provide
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print-out.
_________________________
Julie L. GantzCERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief have been mailed
first class, postage prepaid, to:
Paul J. Weber
HYATT & PETERS
1919 West Street
Box 1852
Annapolis, MD 21404-1852
____________________________
Julie L. Gantz, Esq.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
October 6, 2000
1 Defendant also argues that the Commission received Scott's charge
on January 27, 1997, not on February 10th, citing a computer-generated
EEOC intake report. R&R Br. at 20. This document is an intake record
indicating the date Scott came to the Commission's office to pick up a
charge form and meet with an intake officer. II JA 1344. Scott did not
sign her charge until February 2, 1997, see II JA 1264, and the Commission
received the signed charge on February 10, 1997. II JA 1265.
2 R&R Ventures uses ellipses to misleadingly alter Scott's testimony.
R&R Ventures quotes Scott as testifying that Wheeler's conduct was "not
. . . bad." See R&R Br. at 4 n.3. Scott, in fact, stated that Wheeler's
comments about sex were "not as bad in June." I JA 701 (Scott Dep. at
138).
3 While Scott characterized Wheeler's comments at one point in her
deposition as "little stuff," more often she made clear that his behavior
was upsetting. See I JA 694 (Scott Dep. at 131) ("it's just something I
was not used to and something that I did not appreciate"); I JA 695-96
(Scott Dep. at 132-33) (as example of comments she did not like, she
stated "he was constantly, constantly making comments about my butt");
I JA 696 (Scott Dep. at 133 ("Nobody else talked about my butt. And if
they would have, I would have just - especially if it would have been
a younger guy, I probably would have smacked him.").
4 Defendant argues that the Commission relies "heavily" on the testimony
of Lia Green Mack, Misti Sevier, Pedro McKee, and LaDonna Mooney and
argues that such evidence "has no bearing on whether Scott, Potter
and/or Wright, themselves, were subjected to an actionable hostile work
environment while working under Wheeler's supervision at the Severna
Park store." R&R Br. at 27. First, in our opening brief, the Commission
briefly referred to the testimony of Mack and Sevier as evidence that the
defendant's sexual harassment policy is ineffective. See EEOC Br. at
42-44. Second, both McKee and Mooney are valid witnesses to the work
environment at the Severna Park Taco Bell during the relevant time period.
McKee was Scott's and Wright's co-worker at the Severna Park Taco Bell and
witnessed Wheeler's sexually inappropriate behavior and sexist comments,
I JA 299, 307-08 (McKee Dep. at 19, 27, 28) and served as a confidante
to Scott. I JA 301 (McKee Dep. at 21). Mooney frequently visited
her daughter at work, I JA 337-38, 349 (Mooney Dep. at 22-23, 34);
witnessed Wheeler's inappropriate treatment of female employees, I JA
351, 354 (Mooney Dep. at 36, 39); listened to her daughter's complaints
about Wheeler's sexual comments, I JA 395-96 (Mooney Dep. at 80-81);
and attempted to intervene on her daughter's behalf by informing R&R
Ventures' management of the problem. I JA 345, 368, 370-78 (Mooney
Dep. at 30, 53, 55-63). McKee's and Mooney's testimony corroborates
that of the victims, and certainly bears on whether they were subjected
to a hostile work environment.
5 Defendant incorrectly states that Mike Lee testified that he
interviewed employees with his wife as part of this "investigation."
R&R Br. at 35 n. 20. Only Mike Lee's wife conducted these interviews,
and they were by phone and not in person. See I JA 149-52 (Lee Dep. at
71-74).