United States v. 2005-09-02 | 04-35029 | CHRISTOPHER VNATIONAL EDUCATION ASSOCIATION | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
and
CAROL CHRISTOPHER; JULIE BHEND; No. 04-35029 CARMELA CHAMARA,
Plaintiffs-Intervenors-  D.C. No.
Appellants, CV-01-00225-JKS
v.
NATIONAL EDUCATION ASSOCIATION,
Alaska; NATIONAL EDUCATION
ASSOCIATION,
Defendants-Appellants. 
 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
and
No. 04-35201CAROL CHRISTOPHER; JULIE BHEND;
CARMELA CHAMARA, D.C. No.
Plaintiffs-Intervenors, CV-01-00225-JKS
v. OPINION
NATIONAL EDUCATION ASSOCIATION,
Alaska; NATIONAL EDUCATION
ASSOCIATION,
Defendants-Appellees. 
12101

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Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
July 11, 2005—Anchorage, Alaska
Filed September 2, 2005
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Goodwin
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COUNSEL
Jennifer S. Goldstein, EEOC, Washington, D.C., for the
plaintiff-appellant.
Kenneth R. Friedman, Friedman, Rubin & White, Bremerton,
Washington, Terry A. Venneberg, Tacoma, Washington, for
the plaintiffs-intervenors-appellants.
Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C.,
for defendant-appellee NEA.
Leslie Longenbaugh, Simpson, Tillinghast, Sorensen & Lon-
genbaugh, Juneau, Alaska, for defendant-appellee NEA-
Alaska.
OPINION
GOODWIN, Circuit Judge:
This appeal presents the question whether harassing con-
duct directed at female employees may violate Title VII in the
absence of direct evidence that the harassing conduct or the
intent that produced it was because of sex. We hold that
offensive conduct that is not facially sex-specific nonetheless
may violate Title VII if there is sufficient circumstantial evi-
dence of qualitative and quantitative differences in the harass-
ment suffered by female and male employees.
I. PROCEDURAL HISTORY
The Equal Employment Opportunity Commission
(“EEOC”) brings this action against the National Education
Association-Alaska (“NEA-Alaska”) and the National Educa-
tion Association (“NEA” or “NEA national”) for violations of
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e
et seq.) (“Title VII”).
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Three female employees filed EEOC charges against NEA-
Alaska in April 2000. The EEOC filed its action against
NEA-Alaska in July 2001, alleging that the organization cre-
ated a sex-based hostile work environment for all three
employees and that it constructively discharged one of them.
All three employees subsequently intervened in this action.
On June 28, 2002, plaintiffs filed a joint motion to join the
NEA national as a defendant, which the district court granted.
NEA-Alaska moved for summary judgment, arguing that
there were insufficient facts for a jury to infer that there
existed a hostile work environment or that any alleged harass-
ment was because of sex. NEA also separately moved for
summary judgment on the ground that it was not a proper
party to the action and that it was not liable for any alleged
violations of Title VII, assuming that there were violations.
The district court granted summary judgment to both defen-
dants, holding that a reasonable trier of fact could not find that
the alleged harassment was “because of . . . sex” within the
meaning of the statute. Plaintiffs timely appeal.
II. FACTS
NEA-Alaska is a labor union that represents teachers and
other public school employees. NEA-Alaska appointed
Thomas Harvey Interim Assistant Executive Director in early
1998, and he began working in its Anchorage office. In
August 1999, NEA-Alaska designated him Assistant Execu-
tive Director. He currently serves as Executive Director of
NEA-Alaska. Carol Christopher was an employee designated
as a “UniServ director” in the Anchorage office. In that
capacity she helped local affiliates with organizing and train-
ing, from 1995 until she resigned in February 2000. Julie
Bhend and Carmela Chamara were members of the Anchor-
age office’s administrative support staff at all material times.
Bhend began working for NEA-Alaska in 1993 and is still
employed there; Chamara was employed by NEA-Alaska
from 1997 until she resigned in August 2000. Both Christo-
pher and Chamara have testified that their resignations were
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precipitated by Harvey’s conduct, but only Christopher has
claimed a constructive discharge.
The record reveals numerous episodes of Harvey shouting
in a loud and hostile manner at female employees. The shout-
ing was frequent, profane, and often public. The record shows
little or no provocation for these episodes. Christopher
described an illustrative incident:
I had a sister who was dying in California . . . [we]
were all taking turns going to take care of her, and
be there just in case she died, so I asked for — I
went over Labor Day weekend so I wouldn’t get in
trouble, so I had the legitimate days off, and then I
think I took an extra day . . . and when I got back,
we had a meeting at the get go, right in the morning,
we had a meeting, and Tom came in and said, so
how’s your sister? And I said, not very good at all.
And I said, do I need to bring anything to this meet-
ing, Tom? And he said, if you would have read
your fucking e-mail, you would have known, but,
no, you were out of town, so we’ve lost a day
there. And again I just went, my sister is dying. I
was with a sister who’s dying, and he’s saying that
to me? Like people take days off — all the men
take days off there to go fishing and hunting and
that’s okay. He knows my sister is dying. He
knows how heavy my heart is, and he can say
that? It was — so it was so astonishing and so cruel
at the same time, I just again just started crying and
I left the room.
(emphasis added). Bhend and Chamara also testified to Har-
vey regularly “yelling” at them loudly and publicly for little
or no reason.
Harvey’s verbal conduct also had a hostile physical accom-
paniment. Christopher testified that Harvey regularly came up
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behind her silently as she was working, stood over her, and
watched her for no apparent reason. Bhend testified that at an
evaluation meeting where Harvey accused her of taking
breaks with Christopher and another employee in order to talk
behind his back, Harvey “lung[ed] across the table” at her and
shook his fist at her. She also testified that on another occa-
sion when she was comforting a local union president about
an unrelated matter, Harvey came up behind her, grabbed her
shoulders, and yelled “get back to your office.” Chamara tes-
tified that in one instance, Harvey “pump[ed] his fist in [her]
direction, trying to make a point, as was his custom. Stepping
toward me to make the — make the point. I stepped back. I
told him that he was being physically threatening.” She went
so far as to call the police and file a report on one occasion,
on her therapist’s advice that she document physical threats.
The physical manifestation of Harvey’s anger was also con-
firmed by other witnesses, including male employees. For
example, Jeff Cloutier, another UniServ director, testified to
Harvey’s regular invasion of Christopher’s and Bhend’s “per-
sonal space.”
Harvey’s behavior clearly intimidated female employees.
For example, Bhend testified that Harvey’s behavior at her
evaluation meeting put her in a “state of panic,” and that she
“felt that [she] was in jeopardy.” She also testified that after
that incident, she felt “physically threatened most of the time”
on the job whenever Harvey was at the workplace. Indeed,
Bhend went so far as to omit submission of a number of her
overtime hours because she “was too scared of Mr. Harvey to
turn them in to him.” Like Bhend and Christopher, Chamara
also testified that the impacts of the incidents with Harvey
were not isolated, but created a general atmosphere of intimi-
dation in the workplace that was “like working with a ticking
time bomb because you’re sitting by and you’re waiting for
your turn to be next.” Jeff Cloutier testified, without prompt-
ing, to the “general fear of the women at our office.”
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III. DISCUSSION
Because of Sex
The district court erred in its characterization of the bound-
aries of a cognizable Title VII sex-based hostile work envi-
ronment claim, and summary judgment was inappropriate
under the applicable law. The facts in the record, interpreted
in the light most favorable to the plaintiffs, could lead a rea-
sonable juror to conclude that Harvey’s conduct, of which pri-
marily women were the targets, was “because of . . . sex”
within the meaning of the statute. 42 U.S.C. § 2000e-2(a)(1).
The main factual question is whether Harvey’s treatment of
women differed sufficiently in quality and quantity from his
treatment of men to support a claim of sex-based discrimina-
tion. Addressing that question, in this case, requires a clarifi-
cation of what constitutes a legally significant difference in
treatment of men and women.
1. The district court order
[1] The relevant content of the behavior in question
includes repeated and severe instances of shouting, “scream-
ing,”1 foul language, invading employees’ personal space
(including one instance of grabbing a female employee from
behind), and threatening physical gestures, all apparently fol-
lowing little or no provocation. Harvey’s behavior was not, on
its face, sex- or gender-related. No one testified that Harvey
made sexual overtures or lewd comments, that he referred to
women employees in gender-specific terms, or that he
imposed gender-specific requirements upon women employ-
ees. The district court thought that these omissions in the evi-
dence were fatal to the case.
[2] However, there is no legal requirement that hostile acts
be overtly sex- or gender-specific in content, whether marked
1The deposition testimony repeatedly used the word “screaming.”
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by language, by sex or gender stereotypes, or by sexual over-
tures. While sex- or gender-specific content is one way to
establish discriminatory harassment, it is not the only way:
“direct comparative evidence about how the alleged harasser
treated members of both sexes” is always an available eviden-
tiary route. Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80-81 (1998). The ultimate question in either event
is whether “ ‘members of one sex are exposed to disadvanta-
geous terms or conditions of employment to which members
of the other sex are not exposed.’ ” Id. at 80 (quoting Harris
v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).
[3] The Supreme Court has held that “harassing conduct
need not be motivated by sexual desire to support an inference
of discrimination on the basis of sex.” Id. Moreover, plaintiffs
do not need to prove that Harvey had a specific intent to dis-
criminate against women or to target them “as women,” as the
district court put it, whether sexually or otherwise. “Title VII
is not a fault-based tort scheme. Title VII is aimed at the con-
sequences or effects of an employment practice and not at the
. . . motivation of co-workers or employers.” Ellison v. Brady,
924 F.2d 872, 880 (9th Cir. 1991) (internal quotations omit-
ted). There we held that conduct may be “unlawful sexual
harassment even when harassers do not realize that their con-
duct creates a hostile working environment.” Id.
The district court erred in holding that the “because of . . .
sex” element of the action requires that the behavior be either
“of a sexual nature” or motivated by “sexual animus.” The
district court recognized that plaintiffs “presented substantial
evidence that Harvey is rude, overbearing, obnoxious, loud,
vulgar, and generally unpleasant” but nonetheless held that
because “there is no evidence that any of the exchanges
between Harvey and Plaintiffs were motivated by lust” or by
“sexual animus toward women as women,” his conduct was
not discriminatory.
[4] In applying this sexual animus test, the district court
seemed to find it significant that Harvey did not seek “to drive
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[women] out of the organization so that their positions could
be filled by men.” He noted that the workplace was a teach-
er’s union, in which women were traditionally not a minority.
However, a pattern of abuse in the workplace directed at
women, whether or not it is motivated by “lust” or by a desire
to drive women out of the organization, can violate Title VII.
Indeed, this case illustrates an alternative motivational theory
in which an abusive bully takes advantage of a traditionally
female workplace because he is more comfortable when bul-
lying women than when bullying men. There is no logical rea-
son why such a motive is any less because of sex than a
motive involving sexual frustration, desire, or simply a motive
to exclude or expel women from the workplace.
2. Applying the differential effects standard
[5] Whatever the motive, the ultimate question under
Oncale is whether Harvey’s behavior affected women more
adversely than it affected men. Plaintiffs allege that Harvey’s
treatment of women employees was “more abusive” and that
he treated “his female subordinates worse” by “subjecting the
women to more severe, more frequent, more physically threat-
ening abuse.” Defendants deny this allegation. These charges
and their denials make a triable question of fact.
a. Qualitative comparison of treatment
[6] We have previously held that it is error to conclude that
harassing conduct is not because of sex merely because the
abuser “consistently abused men and women alike.” Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994).
In that case, the sex- or gender-specific character of the abuse
directed at female employees was fairly obvious, and sum-
mary judgment was clearly inappropriate. Id. (“The numerous
depositions of Showboat employees reveal that Trenkle was
indeed abusive to men, but that his abuse of women was dif-
ferent. It relied on sexual epithets, offensive, explicit refer-
ences to women’s bodies and sexual conduct.”). We went on
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to state that even if the supervisor had “used sexual epithets
equal in intensity and in an equally degrading manner against
male employees, he cannot thereby ‘cure’ his conduct toward
women. Ellison unequivocally directs us to consider what is
offensive and hostile to a reasonable woman.” Id. at 1464.
[7] We acknowledge that our invocation of the “reasonable
woman” standard, which renders sex-specific differences in
the subjective effects of objectively identical behavior suffi-
cient to ground a claim of discrimination, was rooted in the
context of explicitly sex- or gender-specific conduct or
speech. We now hold that evidence of differences in subjec-
tive 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.
[8] The record reveals at least a debatable question as to the
objective differences in treatment of male and female employ-
ees, and strongly suggests that differences in subjective
effects were very different for men and women. One male
UniServ Director (the same position held by Christopher),
apparently had a very different experience with Harvey than
Christopher did. Mark Jones stated that Harvey raised his
voice to him only on a “couple of occasions” and that they
were “able to talk it out — I mean the period of raising the
voice was very short” and that “[s]ince then I have not experi-
enced any of that.” Moreover, Christopher also testified that
the character of Harvey’s aggressiveness with male employ-
ees was different from that experienced by female employees:
it had the quality of “bantering back and forth with somebody,
and being with the boys . . . at the end of the day, I would go
in and he and Bob and Rich and Jeff are all laughing in Tom’s
office, talking, talking, talking, laughing, laughing.” Simi-
larly, Bhend stated that Harvey “shar[ed] a ‘we’re all guys
here’ relationship with male employees.”
However, Cloutier testified to an incident with Harvey that
“scared the hell out of” him, during which, at one point, Har-
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vey “instantly [ ] was three inches from my nose — chin, he’s
a fairly short guy . . . And I don’t even remember what he was
saying — very loud, spitting in my face, accusing me of being
insubordinate.” This is the only incident described in the
record that seems to be comparable in magnitude with the
multiple incidents involving female employees described by
the plaintiffs. Moreover, there is no evidence in the record
that any male employee manifested anywhere near the same
severity of reactions (e.g., crying, feeling panicked and physi-
cally threatened, avoiding contact with Harvey, avoiding sub-
mitting overtime hours for fear of angering Harvey, calling
the police, and ultimately resigning) to Harvey’s conduct as
many of the female employees have reported. A few instances
of hostile behavior toward male employees — which the
record suggests may have had a qualitatively different, “ban-
tering” character — do not erase the possibility that a reason-
able jury might find that the pattern of abuse directed at
female employees was discriminatory.
b. Quantitative comparison of treatment
The defendants argue that because Harvey had more regu-
lar contact with female than with male employees the differ-
ential effect on women was merely incidental. For example,
Cloutier testified that the “men working in that office left lots
of times to go to school buildings, to fly out of state. It was
only the women that stayed there, and it was the women who
felt most vulnerable.”
[9] At least two other circuits have held, as we now do, that
an unbalanced distribution of men and women in relevant
employment positions, and the fact that some men were also
harassed, does not automatically defeat a showing of differen-
tial treatment. See Kopp v. Samaritan Health Sys., Inc., 13
F.3d 264, 269 (8th Cir. 1993) (“[T]he incidents of abuse Kopp
has cited in the record involve primarily women. . . .
[A]pproximately ten involved female employees; only four
involved male employees.”); Haugerud v. Amery School
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Dist., 259 F.3d 678, 695 (7th Cir. 2001) (reversing summary
judgment on hostile work environment claim despite fact that
“[d]etermining whether plaintiff was treated differently
because of her sex, as opposed to some other reason . . . is
admittedly complicated by the fact that she is the only day
custodian at the high school”). To hold otherwise would allow
the accident of a mostly female workplace to insulate even a
culpable employer from liability. The precise determination of
how much qualitative and quantitative difference in treatment
is enough circumstantial evidence to support a Title VII claim
is a question for the jury. We leave open the possibility that
in some cases, the quantitative comparison between male and
female employees as classes will reveal differences too slight
to survive summary judgment. In this case, however, sum-
mary judgment was not appropriate.
Sufficiently Severe
The facts already recited present a triable issue whether the
work environment Harvey created was sufficiently severe to
be illegal under Title VII. The rule is that “the required show-
ing of severity or seriousness of the harassing conduct varies
inversely with the pervasiveness or frequency of the conduct.”
Ellison v. Brady, 924 F.2d at 878. Where the conduct in ques-
tion was allegedly a “daily thing,” there can be little question
that a reasonable juror might infer that Harvey’s pattern of
verbal and physical intimidation, as confirmed by a wide
range of employees, was sufficiently severe to satisfy the stat-
ute.
Summary Judgment for the NEA
NEA national argues that its summary judgment should be
affirmed, even if judgment for NEA-Alaska is reversed. NEA
argues that it is not a proper party in this action because it was
not named in the original EEOC charges. However, failure to
name the party in the original charges is not dispositive. The
law of this circuit is that
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Title VII charges can be brought against persons not
named in an E.E.O.C. complaint as long as they
were involved in the acts giving rise to the E.E.O.C.
claims. Further, where the EEOC or defendants
themselves “should have anticipated” that the claim-
ant would name those defendants in a Title VII suit,
the court has jurisdiction over those defendants even
though they were not named in the EEOC charge.
Sosa v. Hiraoka, 920 F.2d 1451, 1458-59 (9th Cir. 1990)
(citation and internal quotation marks omitted); see also Ortez
v. Washington County, 88 F.3d 804, 808 (9th Cir. 1996).
Moreover, in general, “[t]he jurisdictional scope of a Title VII
claimant’s court action depends upon the scope of both the
EEOC charge and the EEOC investigation.” Sosa v. Hiraoka,
920 F.2d at 1456. NEA further argues that it “cannot in any
event be held responsible under Title VII for the alleged
harassment” because it did not exercise sufficient authority
and control over Harvey’s conduct or the conditions of his
employment.
These are fact-intensive questions that have not been
addressed by the district court and as to which the record has
not been fully developed. Accordingly, both the jursidictional
and the liability questions regarding the NEA should be
addressed on remand.
IV. CONCLUSION
[10] We reverse the summary judgment. There was suffi-
cient evidence for a rational trier of fact to conclude that the
alleged harassment by Harvey was both because of sex and
sufficiently severe to support a hostile work environment
claim under Title VII.
REVERSED AND REMANDED.
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