EEOC & Miles v. Boeing (9th)
Reply brief
July 19, 2006
No. 05-17386
___________________________________________
IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT
___________________________________________
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
KELLEY J. MILES,
Plaintiff-Intervenor-Appellant,
v.  
THE BOEING COMPANY and 
BOEING AEROSPACE OPERATIONS, INC.,
Defendants-Appellees
   __________________________________________________________
                                
        On Appeal from the United States District Court 
                  for the District of Arizona
            Hon. Paul G. Rosenblatt, District Judge
   __________________________________________________________
                                
              REPLY BRIEF OF PLAINTIFF-APPELLANT 
        THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
   __________________________________________________________
     JAMES L. LEE                  U.S. EQUAL EMPLOYMENT
     Deputy General Counsel        OPPORTUNITY COMMISSION
                                   Office of General Counsel
     LORRAINE C. DAVIS             1801 L Street, N.W., Room 7024
     Acting Associate General Counsel        Washington, D.C. 20507
                                   (202) 663-4870
     JAMES M. TUCKER               James.Tucker@EEOC.gov
     Appellate Attorney
                                 
                       TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
     I.   A reasonable trier of fact could conclude from the evidence before 
          the district court that Miles was subjected to sex harassment for
          which Boeing is liable.. . . . . . . . . . . . . . . . . . . . .3
          A.   Severe or pervasive harassment. . . . . . . . . .3
          B.   Harassment because of sex . . . . . . . . . . . .9
          C.   Employer liability. . . . . . . . . . . . . . . 12
     II.  A reasonable trier of fact could conclude from the evidence before 
          the district court that Boeing is liable for the retaliatory conduct of 
          its HR officials and Miles' coworkers. . . . . . . . 17
          A.   Retaliation by Mead and Clark . . . . . . . . . 19
          B.   Coworker retaliatory harassment . . . . . . . . 25
       
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Certificate of Compliance
Certificate of Service
                      Table of Authorities
Cases                                                       Page(s)
Burlington Indus., Inc.  v. Ellerth, 
     532 U.S. 742 (1998) . . . . . . . . . . . . . . . . . .9, 12
Burlington N. & Santa Fe Ry. Co. v. White, 
     126 S. Ct. 2405 (2006). . . . . . 18, 20, 22, 24, 25, 26, 27
Costa v. Desert Palace, Inc., 
     299 F.3d 838 (9th Cir. 2002). . . . . . . . . . . . . 10, 11
Doi v. Halekulani Corp., 
     276 F.3d 1131 (9th Cir. 2002) . . . . . . . . . . . . . . 22
Dominguez-Curry v. Nev. Transp. Dep't, 
     424 F.3d 1027 (9th Cir. 2005) . . . . . . . . . . . . . . 10
Green v. Los Angeles County Superintendent of Sch., 
     883 F.2d 1472 (9th Cir. 1989) . . . . . . . . . . . . . . 23
Harris v. Forklift Sys., Inc., 
     510 U.S. 17 (1993). . . . . . . . . . . . . . . . . 6, 9, 26
McGinest v. GTE Serv. Corp., 
     360 F.3d 1103 (9th Cir. 2004) . . . . . . . . 12, 15, 16, 17
National R.R. Passenger Co. v. Morgan, 
     536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . .6
Nichols v. Azteca Rest. Ents., Inc., 
     256 F.3d 864 (9th Cir. 2001). . . . . . . . . . . .6, 12, 13
Oncale v. Sundowner Offshore Servs., Inc., 
     523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . 10, 11
     
Ray v. Henderson, 
     217 F.3d 1234 (9th Cir. 2000) . . . . . . 19, 22, 24, 27, 28
Reeves v. Sanderson Plumbing Prods., Inc., 
     530 U.S. 133 (2000) . . . . . . . . . . . . . . . .2, 14, 21
Sandgathe v. Chater, 
     108 F.3d 978 (9th Cir.1995) . . . . . . . . . . . . . . . 22
Swenson v. Potter, 
     271 F.3d 1184 (9th Cir. 2001) . . . . . . . . . . . . 12, 15
Villiarimo v. Aloha Island Air, Inc., 
     281 F.3d 1054 (9th Cir. 2002) . . . . . . . . . . . . . . 24
Statute                                 
42 U.S.C.  2000e-2(a)(1) (attached to opening brief in Addendum at A-1)26
                            Argument
     In our opening brief, the Commission argued that the record contained more
than enough evidence to support a reasonable factfinder's conclusions in favor of
the Commission on its sex harassment and retaliation claims, making the district
court's summary judgment decision erroneous as a matter of law.  There was
ample evidence from which a jury could find that for years charging party Kelley
Miles was subjected to hostile and abusive treatment by her male coworkers
because of her sex, that her coworkers' abusive treatment was sufficiently severe
or pervasive to be actionable, and that Boeing was on notice of the harassment but
failed to take prompt, effective remedial action.  The Commission also showed
there was evidence that Miles was subjected to retaliation by Boeing when she
attempted to pursue her sex harassment complaints through Boeing's Human
Resources (HR) department.  The Commission further showed that there was
evidence that Miles' coworkers responded to her complaints to Boeing HR by
increasing their hostile and abusive treatment of her, that Boeing was on notice of
this retaliatory harassment, and Boeing again failed to take prompt, effective
remedial action. 
     In its brief, Boeing concedes that the evidence supports the factual
assertions made by the Commission but complains that the Commission's factual
presentation is incomplete.  In response, Boeing makes irrelevant or unsupported
assertions to criticize select portions of the Commission's statement of facts,
leaving the vast majority of the Commission's factual presentation effectively
unchallenged.  See Appellee's Brief ("AeBr") 6-12.  Notwithstanding its
acknowledgment that the Commission has properly stated the substantive law, see
AeBr15, Boeing misstates and mischaracterizes the Commission's arguments and
the evidence of record, and fails to adhere to the proper legal standards governing
this appeal.  As a result, Boeing commits on appeal the same error made by the
district courtfailing to consider whether given the totality of the circumstances a
reasonable factfinder, viewing the evidence in the light most favorable to the
Commission as nonmovant, making all reasonable inferences in the Commission's
favor, not making credibility determinations or weighing the evidence, and
disregarding all evidence favoring the movant that a jury would not be required to
believe, could find in favor of the Commission.  See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 166, 150-51 (2000) (summary judgment standard). 
Rather than address this issue, Boeing elects instead merely to argue its version of
the facts.  Because choosing which version to believe is for the jury to decide,
summary judgment was inappropriately granted.
I.   A reasonable trier of fact could conclude on the record before the
     district court that Miles was subjected to sex harassment for which
     Boeing is liable.
     A.   Severe or pervasive harassment.
     The Commission presented ample evidence from which a reasonable
factfinder could conclude that the hostile, abusive, and discriminatory
intimidation, ridicule, and insult to which Miles was subjected by her male
coworkers over a period of several years was sufficiently severe or pervasive to
alter the terms and conditions of her employment and create a hostile work
environment.  See Appellant's Brief ("AtBr") 23-34.  This included evidence that
when Miles began working for Boeing in the Pre-Mod group, her male coworkers
immediately began subjecting herand only herto hostile and abusive
treatment.  See AtBr4, 24.  They criticized and subjected her work to constant
scrutiny, ignored her suggestions for improvements, accused her of breaking
things at work and hiding them, drew witch faces on her identification badge, and
told other employees that she was a lesbian and a "man-hater."  See AtBr4, 24.  On
nearly a daily basis from 1998 through June 2001, Cervantes subjected Miles to
extensive physical and verbal harassment, telling her that she "wanted" him and
"loved" him, grabbing her, hugging her, rubbing her shoulders, sticking his tongue
out at her, and blowing kisses at her, once trying to force Miles to kiss him, and
once picking her up and running through the workplace carrying her on his
shoulder "like a bag of potatoes."  See AtBr4-5, 24-25.    
     Byrd and other male coworkers repeatedly called Miles a bitch, and
otherwise subjected her to pervasive hostile verbal abuse, including shouting at
her and taunting her.  See AtBr6-9, 12-14.  Miles' coworkers further harassed her
by routinely taking and/or breaking the tools with which she worked, taking the
ME Plan off of which she worked, routinely "trashing" the tool cart she used, and
mixing up the special fasteners Miles used in her work.  See AtBr7-8, 25.  Among
his many acts of harassment, Blough called Miles a bitch, referred to another
female employee as a bitch while in Miles' presence, and shook the tail of a
helicopter while Miles was standing on top, almost causing her to fall to the
ground, and then laughed about it.  See AtBr8, 12-13, 25-27.  Manchengo called
Miles a bitch, repeatedly told her that she "like[d] to be tied up" and referenced
"whips and chains," and also touched her inappropriately on several
occasionspulling her hair and squeezing her neck "really hard."  See AtBr13-14,
26-27.  In early 2003, after Byrd moved to a new work area, he continued to make
repeated, unfounded complaints to management about Miles' work performance. 
See AtBr14, 27.
     Boeing argues that the conduct to which Miles was subjected was merely
"unpleasant, rude, distasteful, and even boorish," AeBr19, and therefore should
not be included within the "totality" of circumstances a court evaluates in
assessing the merit of a hostile work environment claim.   See AeBr16-17.  Boeing
is clearly wrong on this point.  First, citing the Seventh Circuit's decision in Perry
v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997), Boeing argues that
the work environment must be "hellish" for the harassment to be sufficiently
severe or pervasive to be actionable under Title VII.  AeBr18.  This, of course, is
not the correct standard, and, most importantly, this Court has never adopted this
standard, which likely explains why Boeing failed to cite any case from this Court
in support of this standard. 
     Furthermore, Boeing's argument is nonsensical.  The point of considering
the totality of the circumstances is to make the determination whether the
challenged conduct is "merely distasteful," or whether it is sufficiently severe to
alter the terms and conditions of Miles' employment.  It makes no sense to exclude
evidence of the conduct which needs to be evaluated to make this assessment.  If
the only conduct to be considered is that which is so "egregious" as to be
"hellish," there would be no need for a "totality of the circumstances" test in the
first place.  Thus, as this Court recognized in Vasquez v. County of Los Angeles,
307 F.3d 884, 889-94 (9th Cir. 2002), a case cited by but apparently
misunderstood by Boeing, a court must look to "all the circumstances" to
determine whether the environment was hostile.  See AeBr16-19; see also Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) ("[W]hether an environment is
hostile' or abusive' can be determined only by looking at all the circumstances.")
(emphasis added); Nichols v. Azteca Rest. Ents., Inc., 256 F.3d 864, 872 (9th Cir.
2001) (same).  In this case, all the circumstances clearly includes that conduct
which Boeing would describe as "merely unpleasant."  Indeed, one wonders why
Boeing is so opposed to the Court considering all the evidence.  If, as Boeing
claims, the conduct is "merely distasteful," Boeing may ultimately prevail on the
merits.
     Boeing similarly errs in arguing that harassing acts which are not
independently sufficiently severe to create a hostile work environment should not
be considered.  See AeBr16-19.  Again, the totality of the circumstances test
contemplates, as the Supreme Court recognized in National Railroad Passenger
Co. v. Morgan, that hostile work environment claims "are based on the cumulative
effect of individual acts."  536 U.S. 101, 115 (2002).  If each act had to be
sufficiently severe standing alone, again, there would be no need to consider the
totality of the circumstances. 
     Boeing seeks to have other evidence presented by the Commission excluded
from consideration by questioning its accuracy.  For example, Boeing notes that
Miles only believed that Byrd took her ME Plan, and there was no conclusive
evidence which established him as the culprit.  See AeBr8.  This argument misses
the point because it doesn't matter whether Byrd was in fact the culprit.  What
matters is that Miles was subjected to a barrage of hostile and abusive conduct at
work, some involving verbal harassment and some involving anonymous
interference with the tools and other implements of her trade, including the taking
of her ME Plan.  All of these acts were part of a persistent pattern of harassment
perpetrated by her fellow workers.  It really is immaterial whether it was Byrd or
some other coworker who took her ME Plan.
     Boeing also claims that the record does not support the Commission's claim
that Miles' male coworkers refused to accept her, that her tool cart was repeatedly
trashed, and that in 2003 Byrd repeatedly complained to management about her
work performance.   See AeBr9-10.  These contentions are without merit.  First,
there is extensive evidence that Miles was subjected to harassment by her male
coworkers as soon as she began working in Pre-Mod in 1998evidence from
which a reasonable factfinder could easily conclude they did not welcome her
presence in the workplace.  See AtBr4-9.  The evidence also shows that the tool
cart Miles used was first "trashed" in May 2001, and, despite Miles' complaints to
management about this event, on several other occasions the cart was "trashed,"
although to a lesser degree than the initial incident.  See AtBr8; E.R.22 (Miles
Dep. at 177).  The record also clearly supports the Commission's contention that
Byrd complained erroneously about the correctness of Miles' work on at least
three separate occasions in early 2003.  See E.R.107-08 (Diga Dep. Ex. 1) (Miles'
statement that Byrd "has done nothingexcept try to find everything wrong [with
what she is] doing. . . . He started this last week Thursday, Friday, Monday, and
again today. . . . [she has] had to get a hold of engineering for each occasion . . .
[w]ho has backed [her] work up each time"). 
     Boeing criticizes the Commission's reliance on this Court's decisions in
Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005), and
Porter v. California Dep't of Corr., 419 F.3d 885 (9th Cir. 2005), asserting that
because these cases involve supervisor harassment of a subordinate employee,
rather than coworker harassment, they are inapposite.  See AeBr40-41.  This,
again, is a flawed analysis.  Whether the conduct at issue is sufficiently severe or
pervasive to constitute an actionable hostile work environment is determined
primarily by examining what happened to the employee, i.e., the abusive conduct
to which she was subjected rather than merely who did it.  Whether the harasser is
a supervisor or a coworker is relevant to determining employer liability for the
unlawful conduct.  See Harris, 510 U.S. at 21, 22 (identifying standard for
determining whether hostile work environment is actionable, and making no
distinction for purposes of this question between harassment by superiors or
coworkers); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 764-65 (1998)
(discussing different standards for employer liability).  Boeing actually concedes
as much, given its detailed discussion of the harassing conduct at issue in those
cases.  See AeBr40-41. 
     Throughout its brief, Boeing makes the bald assertion that the
Commission's position is not supported by "admissible evidence."  See AeBr. at 6,
12, 13, 15, 22, 39, 40, 51.  Aside from the fact that, with one exception, Boeing
never identifies the evidence it claims to be inadmissible, it is just plain wrong. 
The Commission's argument on appeal is based on admissible evidence which was
properly before the district court, and Boeing has failed to make any showing to
the contrary either in the district court or on appeal.
     B.   Harassment because of sex.
     The Commission presented sufficient evidence from which a jury could
conclude the harassment occurred "because of" Miles' sexthat is, "the
harass[ment was] motivated by general hostility to the presence of women in the
workplace,"  Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). 
See AtBr31-34.  The Commission presented evidence that Miles' coworkers
frequently referred to her, both directly and out of her presence, by names such as
"bitch"  and "fucking cunt," see AtBr6, 12, 32names which strongly suggest
they harbored sex-based hostility toward her, and names from which a reasonable
jury unquestionably could conclude that Miles' harassers were motivated by her
sex.  Costa v. Desert Palace, Inc., 299 F.3d 838, 861-62 (9th Cir. 2002) (jury could
interpret harasser's use of the term "bitch" in reference to the plaintiff as evidence
of sex-based hostility), aff'd, 539 U.S. 90 (2003); Dominguez-Curry, 424 F.3d at
1038 (sexist remarks by harasser are probative of discriminatory intent even if
such remarks are directed at women other than the plaintiff).
     Boeing mischaracterizes the Commission's argument as asserting that "mere
use of the term bitch' establishes gender-based animus."  AeBr34.  Boeing further
contends that even if the namecalling can be deemed gender based, such conduct
"cannot be used to attribute a gender-based motive to the other alleged conduct." 
AeBr39-40.  In so arguing, Boeing relies on a misunderstanding of this Court's
decision in Costa.  Costa does not stand for the proposition that Boeing
claimsthat evidence of use of the term "bitch" is insufficient to support a
reasonable factfinder's conclusion that the speaker was motivated in his
harassment by the victim's sex.  See AeBr35-36.  Rather, Costa makes clear that
whether the use of the epithet "bitch""highly charged and offensive sexual
language"is inherently offensive is not for the reviewing Court to determine on
appeal, as "the jury could interpret it . . . to be one piece of evidence among many,
a derogatory term indicating sex-based hostility," and such language is "simply
one more factor for the jury to consider."  299 F.3d at 862.  
     Accordingly, this Court's precedent clearly supports the Commission's
argument that a reasonable factfinder could conclude from the ample evidence of 
Miles' coworkers repeatedly calling her and/or referring to her as "bitch" and
"fucking cunt," that their harassment of her was because of her sex.  In addition,
the record is replete with additional evidence that the harassment was because of
Miles' sex.  See AtBr31-34.  The evidence of Miles' coworkers' general hostility
toward her presence, as a woman, in the workplace is evidence which supports an
inference, on summary judgment, that Miles' coworkers harassed her because of
her sex.  See Oncale, 523 U.S. at 80.
     Boeing further asserts that "most of the evidence upon which the EEOC
relies" to meet the "because of" sex element of its claim "is not actionable"
because Miles never reported these incidents to Boeing.  See AeBr39.  Boeing
confuses the standard for establishing the existence of a hostile work environment
with the standard for establishing liability for that hostile work environment.  See,
e.g., Ellerth, 524 U.S. at 752-65.  Whether the employer was on notice of the
conduct simply is not relevant to the question of whether the harassment was
because of sex.  See, e.g., Nichols, 256 F.3d at 874-75 (recognizing distinct
inquiries for "because of" sex and employer liability).
     C.   Employer liability.
     As noted in the Commission's opening brief, see AtBr34-38, "employers are
liable for failing to remedy or prevent a hostile work environment of which
management-level employees knew, or in the exercise of reasonable care should
have known."  McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119 (9th Cir.
2004).  Notice of coworker harassment triggers the employer's duty to take prompt
corrective action that is "reasonably calculated to end the harassment," a duty
which "will not be discharged until actionprompt, effective actionhas been
taken," and the employer's failure to meet that obligation results in the attachment
of liability.  Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001).  Properly
examining the Commission's evidence under this standard, a reasonable factfinder
could easily conclude that Boeing was on notice of the harassment of Miles such
that its failure to remedy the harassment subjects Boeing to liability.  
     The Commission presented evidence that for a number of years, Miles
complained to her supervisors about coworker harassment, but her reports were
met with either indifference or outright hostility.  See AtBr6-11, 14, 35-38.  While
Miles did not specifically label her complaint as one reporting sex harassment, or
in every instance report the specific details about all the harassment to which she
had been subjected, she was not required to do so in order to put Boeing on notice
that she was complaining of unlawful harassment.  See Nichols, 256 F.3d at 873
n.6 (failure to label the complaint as one of "sexual harassment" is "irrelevant to
the issue of whether he made a sexual harassment complaint").  Miles repeatedly
complained to Hatter and Nunimaker about the hostile and abusive treatment she
was receiving from her male coworkers, including reporting to Hatter that her
coworkers thought she was a bitch, but they never responded in a manner
reasonably calculated to remedy the harassment.  See AtBr35-38.  A reasonable
factfinder could easily conclude that Miles' numerous complaints to her superiors
in Boeing management put them on clear notice that she was being harassed by
her coworkers.  Furthermore, the evidence of Boeing's knowledge of Cervantes'
persistent harassment of his female coworkers is more than sufficient to support a
reasonable factfinder's conclusion that Boeing was well aware it had an active
serial sexual harasser in Miles' work area.  See AtBr5-6, 36.  From all this
evidence, a reasonable factfinder could easily conclude that Boeing knew, or in
the exercise of reasonable caution should have known, that Miles was being
harassed by her coworkers, triggering its remedial obligation.  
     Boeing asserts that it adequately responded to and addressed Miles'
complaints.  See AeBr42; AtBr37-38.  However, the record contains ample
evidence that when Miles complained, Boeing did nothing to remedy the vast
majority of the harassment.  Hatter did nothing in response to Miles' complaints. 
See AtBr6.  Nunimaker's response to Miles' complaints was to repeatedly "talk to
the guys," to no effect, or to call Miles a troublemaker or a crybaby.  See AtBr6-8. 
Miles also complained of the harassment to VanKeuren (who occasionally filled in
as supervisor in Pre-Mod), but he only passed on to Nunimaker and Luidhardt that
she was "unhappy" and took no further action.  See AtBr14.  Clark responded to
Miles' written harassment complaint by holding a meeting and telling her and her
coworkers that Boeing couldn't do anything about harassment in the workplace
because "you can't change people's personalities."  See AtBr11.  Far from
remedying the harassment, Boeing's "remedial" efforts arguably encouraged
further harassment.      
     While Boeing did ultimately terminate Cervantes some three years after he
had begun harassing Miles, that effort came too late, several years after Boeing
was on reasonable notice that Miles was being harassed in the workplace.  Simply
put, a reasonable factfinder could conclude that, had Boeing responded reasonably
to Miles' numerous harassment complaints prior to May 2001, it would have
discovered the full extent of the harassment to which she was being subjected,
including the harassment by Cervantes.  Furthermore, terminating Cervantes did
not remedy the harassment by Miles' other coworkers.  See McGinest, 360 F.3d at
1120 (reasonableness of the employer's remedial effort depends on its ability to
stop the present harassment and to persuade potential harassersthe same
offender or othersto refrain from unlawful conduct).  Accordingly, a reasonable
trier of fact could conclude that Boeing's termination of Cervantes in May 2001
did not satisfy its remedial obligation to end, and prevent, the hostile work
environment to which Miles had been subjected and of which she frequently
complained.
     Boeing's only consistent response to Miles' complaints (other than berating
her) was to offer her a transfer out of Pre-Mod.  Boeing criticizes the Commission
for complaining that a transfer to an "objectively less desirable" position is not an
adequate remedy, because the transfer would not have been to a less desirable job. 
See AeBr43-44.  Boeing again distorts the Commission's argument.  The
Commission's point is not that the transfer would be to a lesser job, but that
transferring Miles was inherently punitive, and not reasonably calculated to stop
the harassment or to persuade potential harassers to refrain from unlawful conduct. 
McGinest, 360 F.3d at 1120.  Transferring Miles, rather than halting the conduct
to which she had been subjected, sends the message that harassment is tolerated
and coworkers can rid themselves of persons they deem undesirable simply by
harassing them.  This Court has held under similar circumstances that adequate
corrective measures entail taking steps to ensure that employees know harassment
would not be tolerated.  In McGinest, this Court noted that at a minimum, the
employer should have informed the offended employees that the company would
take steps to prevent future occurrences of the harassing behavior, and had
management check to make sure the conduct did not recur.  360 F.3d at 1121 &
n.14.  Similar to the result in McGinest, a reasonable jury could conclude that
Boeing failed to take adequate remedial steps and is therefore liable.  
II.  A reasonable trier of fact could conclude from the evidence before the
     district court that Boeing is liable for the retaliatory conduct of its HR
     officials and Miles' coworkers.
     The Commission's evidence is more than sufficient to support a reasonable
factfinder's conclusion that after Miles complained in writing to Boeing HR about
the harassment she was suffering at the hands of her coworkers, and filed a charge
with the Commission, Boeing management retaliated against Miles and her
coworkers subjected her to retaliatory harassment for which Boeing is liable.  See
AtBr38-51.  Despite Boeing's assertions to the contrary, the Commission's claims
are supported by the evidence of record, this Court's precedent, and the Supreme
Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. White,
126 S. Ct. 2405 (2006).
     As an initial matter, we note that the Supreme Court's recent decision in
White defined actionable retaliatory conduct as that which a reasonable employee
would find "materially adverse"retaliatory conduct which "well might have
dissuaded a reasonable worker from making or support in a charge of
discrimination.'"  126 S. Ct. at 2415.  This broad, objective standard meets Title
VII's goal of preventing employer interference with unfettered access to Title
VII's remedial mechanisms, by "prohibiting employer actions that are likely to
deter victims of discrimination from complaining to the EEOC,' the courts, and
their employers."  Id.  The Court noted that it used the term "materially adverse" to
make clear that this broad standard did not extend so far as to include protection
from "trivial harms," "petty slights or minor annoyances."  Id.
     This Court's standard for actionable retaliation is consistent with White. 
This Court has recognized that retaliatory conduct is actionable under Title VII if
it is reasonably likely to deter employees from engaging in protected activity.  Ray
v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).  As with the White "materially
adverse" standard, the Ray standard is a broad, objective standardprotecting
against conduct "reasonably likely to deter employees from engaging in protected
activity"which excludes from its coverage minor conduct such as trivial harms,
petty slights, and minor annoyances "because [such minor conduct] do[es] not
reasonably deter employees from engaging in protected activity."  Ray, 217 F.3d
at 1243.   Accordingly, the Supreme Court's decision in White simply reinforces
the arguments, based on the law of this Court, in support of the Commission's
retaliation claims.   
     A.   Retaliation by Mead and Clark.   
     A reasonable factfinder could easily conclude that Boeing's conduct met the
"materially adverse" standard when, shortly after Miles' June 6, 2001, written
complaint to Boeing HR, Mead told her that her complaint "was going all the way
to the top now" and that by filing her complaint she "was going to create a lot of
enemies."  See AtBr40.  Mead communicated to Miles in no uncertain terms that
she would suffer negative consequences because she complained to Boeing and
filed a charge with the Commission.  In fact, Miles herself interpreted Mead's
comments as suggesting that she withdraw her complaint.  E.R.46 (Miles Dep. at
392). 
     White instructs that whether Mead's conduct amounted to a materially
adverse retaliatory action is a determination which depends, in part, on the context
in which the comment was made.  "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."  White, 126 S. Ct. at 2415.  In short, "[c]ontext
matters."  Id.  Meada Boeing HR officialmade his comments to Miles when
she was inquiring as to why he had thus far failed to fully investigate or pursue her
written harassment complaint.  See AtBr10.  In the same conversation Mead told
Miles he did not want to hear from her about several of her harassment complaints,
see AtBr10, and his response to Miles was made in a work environment where the
vast majority of her prior harassment complaints to her supervisors had been met
with either indifference or outright hostility, see AtBr6-8.  Viewed in context,
Mead's comments certainly could dissuade a reasonable worker from engaging in
protected activity.  See White, 126 S. Ct. at 2415.
     Boeing's responses to the Commission's arguments regarding Mead's
comments defy logic.  First, Boeing contends that Mead's "going all the way to the
top now" comment simply reflected that he believed that Miles' harassment
complaints were serious enough to warrant the attention of upper management,
and his "create a lot of enemies" comment was "merely a statement of fact, to
prepare Miles for the potential consequences of her complaint."  See AeBr46-47. 
Boeing's argument certainly fails to view the evidence in the light most favorable
to the Commission, with all justifiable inferences made in the Commission's favor. 
See Reeves, 530 U.S. at 150-51.  Taking the evidence in context, Boeing's
interpretation is not even plausible.  It is preposterous to believe, as Boeing
suggests, that Mead's comments were just Boeing's way of letting Miles know her
complaints would be taken seriously.  The most likely meaning of these
statements, and certainly permissible viewing the evidence in the light most
favorable to the Commission, is that Miles was being warned that she would suffer
adverse consequences from having complained.     
     Boeing asserts that there is no evidence that Mead's comments were
motivated by an interest in having Miles withdraw her complaint, but this
argument again reflects Boeing's basic misunderstanding of the law.  The legal
standard is whether a reasonable worker would likely be dissuaded from
participating in protected activity, not whether the employer intended the
employee to withdraw the complaint.  See White, 126 S. Ct. at 2415; Ray, 217
F.3d at 1243.
     Boeing also argues that Miles failed to exhaust her administrative remedies
regarding Mead's comments, and therefore the Commission cannot present a claim
regarding Mead's comments.  See AeBr46 n.10.  At no time, however, did Boeing
present this argument to the district court.  See AeBr47 n.11 (Boeing's identifying
where it addressed Mead's comments in the district court); Reply in Support of
Defendant's Motion for Summary Judgment, District Court Docket No. 124, at 16
n.23 (filed Apr. 5, 2005) (mentioning Mead's comments).  Accordingly, this
argument is waived for purposes of appeal.  See, e.g., Doi v. Halekulani Corp.,
276 F.3d 1131, 1140 (9th Cir. 2002) ("[I]t is well-established that an appellate
court will not consider issues that were not properly raised in the district court.");
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.1995) (refusing to address an
argument not raised in the district court).  
     Even if Boeing's argument was properly before this Court, it must fail
because Mead's retaliatory conduct is clearly like or reasonably related to Miles'
claim in her second chargethat her coworkers and management at Boeing were
retaliating against her for the filing of her complaint.  In determining whether an
allegation under Title VII is like or reasonably related to the allegations presented
in the charge, courts construe the charge liberally and inquire whether the
additional allegations are within the scope of the investigation which can
reasonably be expected to grow out of the original charge.  Green v. Los Angeles
County Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir. 1989).  Miles'
charges specifically referred to suffering retaliation after complaining to Boeing's
HR department, and identified retaliation by Clarka member of Boeing HR. 
E.R.6-8.  Mead's retaliatory conduct occurred close in time to Clark's, and Mead's
failure to investigate several of Miles' harassment allegations is what motivated
her to speak to Clark in the first place.  See AtBr10-11.  Accordingly, Mead's
conduct clearly is within the scope of the investigation which could have
reasonably been expected to grow out of Miles' charges that Boeing, including
Boeing HR, was not responding to her complaints and was retaliating against her. 
     A reasonable factfinder could also easily conclude that Boeing unlawfully
retaliated against Miles when Clark stated to Miles that Boeing would not help her
with her other complaints of discrimination because she had filed a charge with
the Commission, and therefore the Commission was now her "advocate."  See
AtBr11.  Boeing contends that there is no evidentiary support for the
Commission's "broad-ranging" version of Clark's comments.  See AeBr49. 
However, in making this contention, Boeing ignores the Commission's evidence
that Clark told Miles that "because [she had] chosen to go outside the company
and bring an outside in, that he can't help [her]," that Clark stated he "would not
talk to her because [she had] chosen to make the EEOC her advocate," and that
Clark repeated this assertion to Miles several times.  E.R.40, 64-67 (Miles Dep. at
312-14; Miles Aff't Att. 14).  Given this evidence, a reasonable jury could find in
favor of the Commission's position.  
     Boeing's contention that there is "no evidence" that Clark's comments were
intended to be retaliatory, or that Miles was actually deterred from filing
complaints, also misses the point.  The Commission need only present evidence
from which a causal link may be inferred between the protected activity and the
employer's materially adverse response.  White, 126 S. Ct. at 2415; Ray, 217 F.3d
at 1242.  This the Commission has done.  The close temporal proximity of Clark's
comments to Miles' filing a charge, as well as the facially retaliatory nature of the
comments, easily meet the causal link requirement.  See Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) ("[C]ausation can be inferred from
timing alone where an adverse employment action follows on the heels of
protected activity.").  The message clearly communicated in Clark's
commentsgo to the EEOC and we will not investigate or remedy your
discrimination complaintsplainly satisfies the "materially adverse employment
action" requirement.  See White, 126 S. Ct. at 2415.  A jury could easily conclude
on the Commission's evidence that a reasonable worker might well be deterred
from complaining about discrimination if he or she was threatened in the manner
Mead and Clark threatened Miles.  See id.  A jury could further conclude from the
evidence of retaliatory conduct by these two members of Boeing management that
Boeing possesses a corporate mindset of hostility toward employees who complain
of discrimination. 
     B.   Coworker retaliatory harassment.
     The evidence that Miles was subjected to new, and intensified, coworker
harassment soon after she filed her first written complaint with Boeing, and her
first charge with the Commission, was sufficient to support a retaliatory
harassment claim.  See AtBr10, 12-14, 43-49.  This is especially so in light of the
Supreme Court's decision in White, which supports the Commission's argument
that the "severe or pervasive" standard does not apply to claims of retaliatory
harassment.  See AtBr43 n.5
     As noted in our opening brief, Ray cited Harris for the "severe or pervasive"
test to apply when analyzing claims of harassment.  Id.  Harris addressed a claim
of hostile work environment harassment brought under Section 703(a)(1) of Title
VII, the general substantive discrimination provision.  The Court applied the
"severe or pervasive" test to determine whether the challenged conduct was
sufficiently egregious to be actionable under the language of that section of Title
VIIwhether the conduct amounted to a change in the "terms, conditions, or
privileges" of employment.  Harris, 510 U.S. at 21; 42 U.S.C.  2000e-2(a)(1)
(attached to opening brief in Addendum at A-1).  
     However, the Supreme Court recognized in White that Title VII's
substantive discrimination provision and its antiretaliation provision "are not
coterminous," with the latter providing broader protection than the former.  126 S.
Ct. at 2414.  The Court unambiguously stated that "purpose reinforces what
language already indicates, namely, that the anti-retaliation provision, unlike the
substantive provision, is not limited to discriminatory actions that affect the terms
and conditions of employment."  Id. at 2412-13.  
     In so doing, the Court flatly refused to apply the adverse action standard for
Section 703(a)(1) claims to claims of unlawful retaliation brought under Section
704(a).  Id. at 2414.  The "materially adverse" standard from White is an objective
standard, applied in light of the particular circumstances in which the offending
conduct was perpetrated.  Id. at 2415.  Applying the "severe or pervasive"
testwhich determines whether the challenged conduct violates Section
703(a)(1), not Section 704(a)in the retaliation context imposes a more restrictive
standard for actionable conduct than is required by White, and is contrary to the
reasoning of White. 
     Boeing argues that the Commission's evidence of Miles' ostracism cannot
be considered as contributing to the hostile work environment, because coworker
ostracism is not actionable, and because there is no evidence that the ostracism of
Miles was based upon a retaliatory motive.  See AeBr55-57, 57 n.14.  Neither of
these argument has any merit.  First, this Court has recognized that coworker
ostracism, as part of a larger constellation of harassing conduct, can support a
retaliatory hostile work environment claim.  Ray, 217 F.3d at 1245-46.  See also
AtBr46.  Boeing has presented no authority to the contrary, other than a narrow,
incorrect interpretation of Ray as standing for the absurd proposition that
coworker mistreatment of an employee is only actionable if the mistreatment is
orchestrated by managementa proposition at odds with Title VII and completely
without support in this, or any, Court's precedent. 
     In addition, there is ample evidence from which a reasonable factfinder
could conclude that Miles' coworkers ostracized her because of her complaints
about harassment.  See AtBr46-47.  The ostracism began, and the other harassment
escalated, almost immediately after her coworkers discovered that Miles had
complained to Boeing HR.  See Ray, 217 F.3d at 1244 (retaliatory motive may be
inferred from temporal proximity between protected activity and allegedly
retaliatory conduct).  Given Boeing's assertion that Mead's comments were
intended to "prepare Miles for the potential consequences of her complaint,"
Boeing apparently anticipated that Miles would be retaliated against.  AeBr47. 
Boeing proved quite prophetic.  After Miles complained, Bonomo told her the
"war is on now," Byrd refused to speak with her because "she had gotten other
people fired," and a number of Miles' coworkers' attitude toward her changed for
the worse.  See AtBr46-49.  This evidence is sufficient to support a reasonable
factfinder's conclusion that a retaliatory motive was behind the ostracism.
                           Conclusion
     For the foregoing reasons, and those presented in our opening brief, the
Commission respectfully requests that this Court reverse the district court's grant
of summary judgment to Boeing and remand the case for trial.
                    Respectfully submitted,
                                   JAMES L. LEE        
                                   Deputy General Counsel
                                   LORRAINE C. DAVIS
                                   Acting Associate General Counsel
                                   __________________________
                                   JAMES M. TUCKER 
                                   Appellate Attorney
                                   U.S. EQUAL EMPLOYMENT 
                                    OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                        1801 L Street, N.W., Room 7024
                                   Washington, D.C. 20507
                                   (202) 663-4870
                                   James.Tucker@EEOC.gov
                    Certificate of Compliance
     I certify that the foregoing Reply Brief of Plaintiff-Appellant the U.S. Equal
Employment Opportunity Commission complies with the type-volume limitations
set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B).  This brief
contains 6,483 words, from the Argument through the Conclusion, as determined
by the Word Perfect 9 word-counting program, and was prepared using the
WordPerfect 9.0 word-processing system in 14-point proportionally spaced type
for text and 14-point type for footnotes. 
                    __________________________
                         
                    JAMES M. TUCKER 
                    Appellate Attorney
                    U.S. EQUAL EMPLOYMENT 
                     OPPORTUNITY COMMISSION
                    Office of General Counsel, Appellate Services Division
                    1801 L Street, N.W., Room 7024
                    Washington, D.C. 20507
                    (202) 663-4870
                    James.Tucker@EEOC.gov
                     CERTIFICATE OF SERVICE
     I hereby certify that one original and fifteen copies of the foregoing Reply Brief of
Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission were sent this 17th day
of July, 2006, by FedEx Next Day Air delivery, postage prepaid, to Cathy Catterson, Clerk of
Court, United States Court of Appeals for the Ninth Circuit, 95 Seventh Street, San Francisco,
California,  94103.  I further certify that two copies of the foregoing Reply Brief of Plaintiff-
Appellant the U.S. Equal Employment Opportunity Commission were sent this 17th day of July
2006, by FedEx Next Day Air delivery, postage prepaid, to Plaintiff-Intervenor-Appellant and
counsel of record for the Defendants-Appellees at the addresses below:
     Plaintiff-Intervenor-Appellant:         Kelley J. Miles (pro se)
                                   734 W. Gail Ct.
                                   Gilbert, Arizona  85233
     Counsel for Defendants-Appellees:       Tibor Nagy, Jr., Esq.
                                   Erica Rocush, Esq. 
                                   Snell & Wilmer LLP
                                   One South Church Ave., Ste. 1500 
                                   Tucson, Arizona  85701
                         
                         _____________________________
                         JAMES M. TUCKER 
                         Appellate Attorney
                         U.S. EQUAL EMPLOYMENT 
                          OPPORTUNITY COMMISSION
                         Office of General Counsel, Appellate Services Division
                         1801 L. St., N.W., Rm. 7024
                         Washington, D.C.  20507
                         (202) 663-4870
                         James.Tucker@eeoc.gov
                          No. 05-17386
          ___________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS 
                     FOR THE NINTH CIRCUIT
          ___________________________________________
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
and
KELLEY J. MILES,
Plaintiff-Intervenor-Appellant,
v.  
THE BOEING COMPANY and 
BOEING AEROSPACE OPERATIONS, INC.,
Defendants-Appellees
   __________________________________________________________
                                
        On Appeal from the United States District Court 
                  for the District of Arizona
            Hon. Paul G. Rosenblatt, District Judge
   __________________________________________________________
                                
                        NOTICE OF ERRATA
   __________________________________________________________
     The undersigned counsel for Plaintiff-Appellant the U.S. Equal
Employment Opportunity Commission ("Commission") hereby provides the Court
of notice of a citation error contained in the Commission's Reply Brief, filed on
July 17, 2006.  At the bottom of page 5 of the Reply Brief, the undersigned
mistakenly included an incorrect citation for this Court's decision in Vasquez v.
County of Los Angeles.  The proper citation349 F.3d 634 (9th Cir. 2003)was
mistakenly omitted from the Reply Brief, which instead contained citation to this
Court's prior, superceded decision in that case.  Attached for the Court's
convenience is a copy of page 5 of the Commission's Reply Brief, with the correct
Vasquez citation provided therein.
                    Respectfully submitted,
                                   JAMES L. LEE        
                                   Deputy General Counsel
                                   CAROLYN L. WHEELER
                                   Acting Associate General Counsel
                                   LORRAINE C. DAVIS
                                   Assistant General Counsel
                                   __________________________
                                   JAMES M. TUCKER 
                                   Appellate Attorney
                                   U.S. EQUAL EMPLOYMENT 
                                    OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                        1801 L Street, N.W., Room 7024
                                   Washington, D.C. 20507
                                   (202) 663-4870
                                   James.Tucker@EEOC.gov
"unpleasant, rude, distasteful, and even boorish," AeBr19, and therefore should
not be included within the "totality" of circumstances a court evaluates in
assessing the merit of a hostile work environment claim.   See AeBr16-17.  Boeing
is clearly wrong on this point.  First, citing the Seventh Circuit's decision in Perry
v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997), Boeing argues that
the work environment must be "hellish" for the harassment to be sufficiently
severe or pervasive to be actionable under Title VII.  AeBr18.  This, of course, is
not the correct standard, and, most importantly, this Court has never adopted this
standard, which likely explains why Boeing failed to cite any case from this Court
in support of this standard. 
     Furthermore, Boeing's argument is nonsensical.  The point of considering
the totality of the circumstances is to make the determination whether the
challenged conduct is "merely distasteful," or whether it is sufficiently severe to
alter the terms and conditions of Miles' employment.  It makes no sense to exclude
evidence of the conduct which needs to be evaluated to make this assessment.  If
the only conduct to be considered is that which is so "egregious" as to be
"hellish," there would be no need for a "totality of the circumstances" test in the
first place.  Thus, as this Court recognized in Vasquez v. County of Los Angeles,
349 F.3d 634, 642 (9th Cir. 2003), a case cited by but apparently 
                     CERTIFICATE OF SERVICE
     I hereby certify that a copy of the foregoing Notice of Errata of Plaintiff-Appellant the
U.S. Equal Employment Opportunity Commission was sent this 19th day of July, 2006, by
FedEx Next Day Air delivery, postage prepaid, to Plaintiff-Intervenor-Appellant and counsel of
record for the Defendants-Appellees at the addresses below:
     Plaintiff-Intervenor-Appellant:
                                   Kelley J. Miles (pro se)
                                   734 W. Gail Ct.
                                   Gilbert, Arizona  85233
     Counsel for Defendants-Appellees:
                                   Tibor Nagy, Jr., Esq.
                                   Erica Rocush, Esq. 
                                   Snell & Wilmer LLP
                                   One South Church Ave., Ste. 1500 
                                   Tucson, Arizona  85701
                         
                         _____________________________
                         JAMES M. TUCKER 
                         Appellate Attorney
                         U.S. EQUAL EMPLOYMENT 
                          OPPORTUNITY COMMISSION
                         Office of General Counsel, Appellate Services Division
                         1801 L. St., N.W., Rm. 7024
                         Washington, D.C.  20507
                         (202) 663-4870
                         James.Tucker@eeoc.gov