Equal Employment Opportunity Commission v. Amy M. Beichler
 01-3055

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT

 No. 01-3055

 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

 Plaintiff-Appellant (01-3055),

 AMY M. BEICHLER,

   Intervenor-Appellant (00-4566),

 v.

 LABORERS' INTERNATIONAL UNION OF
 NORTH AMERICA, LOCAL NO. 310,

 Defendant-Appellee.

 On Appeal from the United States District Court
 for the Northern District of Ohio, Eastern Division

 PROOF BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION AS APPELLANT

 GWENDOLYN YOUNG REAMS
 Associate General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel

 LORRAINE C. DAVIS
 Assistant General Counsel

 CAREN I. FRIEDMAN
 Attorney

 EQUAL EMPLOYMENT OPPORTUNITY
  COMMISSION
 1801 L Street, NW, 7th Floor
 Washington, D.C. 20507
        (202) 663-4720

 TABLE OF CONTENTS
 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii
 STATEMENT REGARDING ORAL ARGUMENT  . . . . . . . . . . . iv
 TITLE VII FACT SHEET . . . . . . . . . . . . . . . . . . v
 STATEMENT OF JURISDICTION  . . . . . . . . . . . . . . . 1
 STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . 2
 STATEMENT OF THE CASE  . . . . . . . . . . . . . . . . . 2
 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . 3
  A. Factual Background . . . . . . . . . . . . . . 3
  B. District Court Decision  . . . . . . . . . . . 16
 SUMMARY OF ARGUMENT  . . . . . . . . . . . . . . . . . . 19
 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 21
 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 22
 I. THE DISTRICT COURT ERRED IN RULING ON
  SUMMARY JUDGMENT THAT THE UNION IS NOT
  LIABLE AS A "LABOR ORGANIZATION" UNDER
  42 U.S.C.  2000e-2(c)  . . . . . . . . . . . . . . 22
  A. The Plain Language of 42 U.S.C.  2000e-2(c)
   and Case Law Interpreting that Section
   Demonstrate that the Union is Liable
   for Sexual Harassment  . . . . . . . . . . . . 22
  B. The Fact that One Charging Party is a
   Non-Union Member Does Not Provide an
   Alternative Ground for Affirmance as to
   the Commission's Claim on Her Behalf . . . . . 31
 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY
  JUDGMENT TO THE UNION ON THE COMMISSION'S
  CLAIM OF RETALIATORY LAYOFF . . . . . . . . . . . . 34
 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 39
 CERTIFICATES OF COMPLIANCE/SERVICE & DESIGNATION OF APX. CONTENTSTABLE
 OF AUTHORITIES

 FEDERAL CASES

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . 21

 Campbell v. Grand Trunk Western R.R. Co.,
  238 F.3d 772 (6th Cir. 2001)  . . . . . . . . . . . . 21

 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)  . . . . . .  21

 Chevron U.S.A., Inc. v. Natural Resources Defense
  Council, Inc., 467 U.S. 837 (1984)  . . . . . . . . . 33

 EEOC v. General Motors Corp.,
  11 F. Supp. 2d 1077, 1081 (E.D. Mo. 1998) . . . . . . 33-34

 EEOC v. Regency Architectural Metals Corp.,
  896 F. Supp. 260 (D. Conn. 1995),
  aff'd sub nom. EEOC v. Shopman's Local 832, No.
  96-6039, 1997 WL 216202 (2d Cir. Apr. 29, 1997) . . . 25

 Farmer v. ARA Services, Inc.,
  660 F.2d 1096 (6th Cir. 1981) . . . . . . . . . . . . 29

 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . . . . . 19,
 23-26
                                   28

 Hicks v. NLO, Inc., 825 F.2d 118 (6th Cir. 1987) . . . . . 2

 Huish Detergents, Inc. v. Warren County, Kentucky,
  214 F.3d 707 (6th Cir. 2000)  . . . . . . . . . . . . 32

 Marquart v. Lodge 837, Int'l Ass'n of Machinists and
  Aerospace Workers, 26 F.3d 842 (8th Cir. 1994)  . . . 29

 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)  . . 35

 Morris v. Oldham County Fiscal Court,
  201 F.3d 784 (6th Cir. 2000)  . . . . . . . . . . . . 35

 Peck v. Bridgeport Machines, Inc.,
  237 F.3d 614 (6th Cir. 2001)  . . . . . . . . . . . . 21

 Reeves v. Sanderson Plumbing Prods., Inc.,
  120 S. Ct. 2097 (2000)  . . . . . . . . . . . . . . . 35
 Romero v. Union Pac. R.R.,
  615 F.2d 1303 (10th Cir. 1980)  . . . . . . . . . . . 29

 Texas Dep't of Community Affairs v. Burdine,
  450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . 35

 United States v. Ron Pair Enters., Inc.,
  489 U.S. 235 (1989) . . . . . . . . . . . . . . . . . 32-33

 Wilson v. Myers, 823 F.2d 253 (8th Cir. 1987)  . . . . . . 24

 Woods v. Graphic Communications,
  925 F.2d 1195  (9th Cir. 1991)  . . . . . . . . . . . 25-26

 FEDERAL STATUTES

 28 U.S.C.  1291 . . . . . . . . . . . . . . . . . . . . . 2

 28 U.S.C.  1331, 1345  . . . . . . . . . . . . . . . . . 1

 42 U.S.C.  1981 . . . . . . . . . . . . . . . . . . . . . 23,26

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

  42 U.S.C.  2000e(d)  . . . . . . . . . . . . . . . . 22

  42 U.S.C.  2000e-2(a)  . . . . . . . . . . . . . . . 16,23

  42 U.S.C.  2000e-2(c)  . . . . . . . . . . . . . . . passim

  42 U.S.C.  2000e-3(a)  . . . . . . . . . . . . . . . 34

 FEDERAL RULES

 Fed. R. Civ. P. 41(a)(1) . . . . . . . . . . . . . . . . . 1-2

 Fed. R. Civ. P. 41(a)(1)(ii) . . . . . . . . . . . . . . . 2STATEMENT

 REGARDING ORAL ARGUMENT

  The Equal Employment Opportunity Commission hereby requests oral
  argument.  This case is fact-intensive and involves a union's liability
  for sexual harassment under Title VII.  The Commission believes that
  oral argument would materially assist the Court in resolving the issues
  on appeal.

 TITLE VII FACT SHEET

 Case Name and Number:
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. LABORERS' INTERNATIONAL UNION
 OF NORTH AMERICA, LOCAL 310, No. 01-3055
 Person Reporting:  Caren I. Friedman, Attorney, EEOC
 1)  Date EEOC complaints filed:  On or about February 23, 1994 (charging
 party Lia); on or about May 19, 1994 (charging party Beichler).
 2)  Was any compromise reached by the state civil rights agency?  No.
 by EEOC?  EEOC settled its claims against the employer, Baker Construction
 Corp.  Its claims against the Union proceeded in the district court and
 are before this Court on appeal.
 3)  Date EEOC right to sue letter issued:  Not applicable.  (The
 Commission is the plaintiff in this action).
 4)  Date present action filed:  June 14, 1996.
 5)  Have all filings been timely?  Yes.
 6)  Nature of claims of discrimination and date(s) of occurrence:
 Sexual harassment and retaliation (on or about November 1993 to May
 1994).
 7)  Disposition below:  District court granted partial summary judgment in
 favor of the Union.  All parties then stipulated to voluntary dismissal
 without prejudice of the remaining claim.  The district court entered
 an Order of Dismissal on November 14, 2000.
 IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT

 No. 01-3055

 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

 Plaintiff-Appellant (01-3055),

 AMY M. BEICHLER,

    Intervenor-Appellant (00-4566),

 v.

 LABORERS' INTERNATIONAL UNION OF
 NORTH AMERICA, LOCAL NO. 310,

 Defendant-Appellee.

 On Appeal from the United States District Court
 for the Northern District of Ohio, Eastern Division

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS APPELLANT

 STATEMENT OF JURISDICTION

  The district court had jurisdiction pursuant to 28 U.S.C.  1331,
  1345 and 42 U.S.C.  2000e-5(f)(1).  On September 26, 2000, the
  district court granted partial summary judgment in favor of Laborers'
  International Union of North America ("the Union" or "Local 310").
  (R.185 Memorandum Opinion, Apx. pg. __).  All parties then stipulated
  to a voluntary dismissal of the remaining claim without prejudice
  pursuant to Fed. R. Civ. P. 41(a)(1).  (R.196 Stipulation, Apx. pg. __).
  Accordingly, the district court dismissed the case without prejudice
  pursuant to Fed. R. Civ. P. 41(a)(1)(ii) on November 14, 2000.  (R.197
  Order, Apx. pg. __).  That order of dismissal rendered the district
  court's grant of partial summary judgment a final appealable order.
  See Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir. 1987) (plaintiff may
  appeal from stipulation to dismiss remaining claim without prejudice
  where district court previously granted summary judgment against her
  on all other claims).  The Equal Employment Opportunity Commission
  ("EEOC" or "Commission") filed a timely notice of appeal on January
  12, 2001.  (R.200 EEOC's Notice of Appeal, Apx. pg. __).  This Court
  has jurisdiction to review the district court's final decision pursuant
  to 28 U.S.C.  1291.

 STATEMENT OF ISSUES PRESENTED FOR REVIEW

  1)  Whether the district court erred in ruling on summary judgment that
  the Union is not liable as a "labor organization" under 42 U.S.C. 
  2000e-2(c).
  2)  Whether the district court erred in granting summary judgment to
  the Union on the Commission's claim of retaliatory layoff.

 STATEMENT OF THE CASE

  This is a Title VII employment discrimination case filed against
  Baker Construction Corp. and Local 310 for hostile environment
  sexual harassment and retaliation.  The Commission settled its claims
  against Baker, and the district court entered a consent decree and
  partial judgment on March 4, 1999.  (R.130 & R.131).  The parties
  then filed cross-motions for summary judgment.  The district court
  denied the Commission's motion and granted in part the Union's motion.
  (R.185 Memorandum Opinion, Apx. pg. __).  After the parties stipulated
  to a voluntary dismissal without prejudice of the remaining claim,
  the district court entered an Order of Dismissal.  (R.197 Order,
  Apx. pg. __).

 STATEMENT OF FACTS

  A.  Factual Background
  Amy Beichler and Jacqueline Lia worked at the construction site of
  the Rock and Roll Hall of Fame ("Hall of Fame") in Cleveland, Ohio
  in 1993-94.  Ms. Beichler, who was a member of the Union, worked as
  a general laborer, and Ms. Lia, who was not a Union member, worked
  as a secretary.  Chester Liberatore, the Union's Business Manager,
  had appointed Lance Carson as the Union Steward.  (R.140 Union's
  S.J. Mot. ex. 7, Carson dep. at 68, Apx. pg. __).
  Several days after Ms. Beichler began working, Mr. Carson began sexually
  harassing her.  Mr. Carson repeatedly made comments to Ms. Beichler that
  were sexual in nature.  (R.147 EEOC's S.J. Mot., Beichler dep. ex. J,
  Apx. pg. __).  For instance, Mr. Carson told Ms. Beichler, "You know Amy,
  you know what I'm envisioning--my dick in your mouth."  (R.147 EEOC's
  S.J. Mot., Beichler dep. ex. A at 1, Apx. pg. __; R.141 Beichler's
  S.J. Mot., Beichler dep. at 240, 271, Apx. pp. __).  He also asked
  Ms. Beichler to have sex with him, and told her he would not tell anybody
  if they did.  (R.141 Beichler's S.J. Mot., Beichler dep. at 240, 272,
  Apx. pp. __).  Mr. Carson also told Ms. Beichler, "I want to see your
  tits."  (R.141 Beichler's S.J. Mot., Beichler dep. at 321, Apx. pg. __).
  In addition, Mr. Carson posted a cartoon in the laborers' trailer
  depicting a very large female construction worker, who he labeled
  "Amy," eating a sandwich comprised of a penis and testicles.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 333, Apx. pg. __; R.149
  Union's Opp. to EEOC's S.J. Mot., Carson dep. at 113, Apx. pg. __;
  R.154 Union's Opp. to Beichler's S.J. Mot., Carson dep. at 174,
  Apx. pg. __).  When Ms. Beichler was injured on the job, Mr. Carson
  asked her for oral sex when he was driving her back from the hospital.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 279-80, Apx. pp. __).
  Mr. Carson's treatment of Ms. Beichler shortly escalated from the sexual
  comments and behavior described above to assault.  On one occasion,
  Mr. Carson followed Ms. Beichler into a tool trailer, latched the door
  shut, and unzipped his pants.  (R.141 Beichler's S.J. Mot., Beichler
  dep. at 306, Apx. pg. __).  He then proceeded to take his penis out
  of his pants and grab Ms. Beichler from behind.  While he was grasping
  her, he thrust his pelvis into her, and stuck his tongue into her ear.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 308-10, 312, Apx. pp. __).
  Mr. Carson also sexually harassed Ms. Lia during this same time period.
  As with Ms. Beichler, Mr. Carson asked Ms. Lia for oral sex and
  other sexual favors.  (R.147 EEOC's S.J. Mot., Lia dep. ex. SS at
  1, Apx. pg. __).  He also grabbed Ms. Lia's buttocks and breasts.
  (R.140 Union's S.J. Mot. ex. 2 at 2, Lia's Ans. to Interrog.,
  Apx. pg. __).  In addition, Mr. Carson pinned her up against a table
  in the construction trailer.  When she got away from him, she noticed
  that he had unzipped his pants and exposed his penis.  He followed her
  around the office holding his penis and asking her for sex.  Id.
  On another occasion, Mr. Carson asked Ms. Lia for some red ribbon,
  saying that he had a birthday present for her.  Later that day, he came
  into Ms. Lia's work area, pulled out his penis, and told her this was
  her birthday gift.<1>  He then asked Ms. Lia to kiss it.  (R.147 EEOC's
  S.J. Mot., Lia dep. ex. SS at 2, Apx. pg. __).  Mr. Carson also spread
  rumors that he had sex with Ms. Lia in the construction trailer.  Id.
  Mr. Carson's harassment of Ms. Beichler and Ms. Lia occurred within a
  wider context of sexist attitudes and behaviors amongst the laborers
  on the Hall of Fame construction site.  For instance, Kenny Howze, a
  Union member, grabbed Ms. Beichler's breasts.  (R.147 EEOC's S.J. Mot.,
  Beichler dep. ex. A at 1, Apx. pg. __).  Another fellow laborer, Mike
  Brown, greeted her with, "Hey, vagina."  (R.141 Beichler's S.J. Mot.,
  Yurglic aff.  7, Apx. pg. __).  In addition, one of the foremen
  announced over the radio, in reference to Ms. Beichler, "that fucking
  broad isn't gonna work out here."  (R.147 EEOC's S.J. Mot., Beichler
  dep. ex. J at 1, Apx. pg. __).
  Both Ms. Beichler and Ms. Lia reported Mr. Carson's harassment to
  Baker management and to the Union.  For Ms. Lia's part, she testified
  that she complained to the Union within a week of complaining to Steve
  Crawford, Baker's Project Manager.  (R.140 Union's S.J. Mot. ex. 11,
  Lia dep. at 27, Apx. pg. __).  Mr. Crawford testified that he also
  told Mr. Liberatore about Ms. Lia's complaint.  (R.140 Union's
  S.J. Mot. ex. 9, Crawford dep. at 335, Apx. pg. __).  Mr. Liberatore
  responded to Ms. Lia's complaint by telling her that he refused to
  remove Mr. Carson from the job.  He stated to Ms. Lia, "I will see you
  in court.  That is why I have attorneys on retainer."  (R.140 Union's
  S.J. Mot. ex. 2 at 3, Lia's Ans. to Interrog., Apx. pg. __).
  As for Ms. Beichler, when she complained to Mr. Liberatore about
  the sexual harassment, he took it as a joke and started laughing.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 143, 144, Apx. pp. __).
  He told Ms. Beichler, "[Lance's] just busting your boobs because you
  don't have any balls."  Id.  Mr. Liberatore told Ms. Beichler that "it's
  the nature of the beast in this industry."  (R.141 Beichler's S.J. Mot.,
  Liberatore dep. at 203, Apx. pg. __).  According to Mr. Liberatore,
  after Ms. Beichler complained to him, he approached Mr. Carson and told
  him, "Hey, don't play games on the job site like that." (R.140 Union's
  S.J. Mot. ex. 12, Liberatore dep. at 204, Apx. pg. __).  According to
  Ms. Beichler, shortly after she complained to Mr. Liberatore about
  Mr. Carson's behavior, she saw both of them laughing together.
  (R.147 EEOC's S.J. Mot., Beichler dep. ex. J at 4, Apx. pg. __).
  Mr. Liberatore acknowledged that Ms. Beichler complained about
  Mr. Carson's sexual advances towards her.  (R.141 Beichler's S.J. Mot.,
  Liberatore dep. at 214, Apx. pg. __).  He testified, however, that
  when he received Ms. Beichler's complaints of sexual harassment,
  he took no affirmative steps to remove Mr. Carson from the job site.
  (R.141 Beichler's S.J. Mot., Liberatore dep. at 259, Apx. pg. __).
  Ms. Beichler testified that she felt like Mr. Liberatore blamed her for
  the harassment by telling her, "You're too nice to the guys."  (R.141
  Beichler's S.J. Mot., Beichler dep. 147, Apx. pg. __).  She testified
  further that Mr. Liberatore treated her complaints like they were
  "nothing."  Id.
  The Union Steward was responsible for the employees' well-being on
  the job site.  (R.141 Beichler's S.J. Mot., Liberatore dep. at 252,
  Apx. pg. __).  Mr. Liberatore admitted that an employee's well-being
  included being free from sexual harassment.  Id.  Mr. Carson, however,
  testified that Local 310 never trained him about sexual harassment, and,
  to his knowledge, the Union had no policy against sexual harassment.
  (R.141 Beichler's S.J. Mot., Carson dep. at 173, Apx. pg. __; id. at
  280, Apx. pg. __).  Michael Biel, a Baker foreman and Local 310 member,
  and Ray Clegg, the Union Steward who eventually replaced Mr. Carson,
  also both testified that they received no training from the Union
  about sexual harassment or about how to handle a complaint.  (R.152
  Beichler's Opp. to Union's S.J. Mot., Biel dep. at 69, Apx. pg. __;
  id., Clegg. dep. at 36-37, Apx. pp. __).
  After Ms. Beichler complained to Baker via Mr. Crawford, Baker began an
  investigation.  After the investigation was completed, Jeffrey Arnold,
  Baker's Vice President of Risk Management, told Perry Hossfeld, Baker's
  Senior Project Manager, that Baker had to make a disciplinary move
  with respect to Mr. Carson.  Mr. Hossfeld replied that he would first
  need to discuss the matter with Mr. Liberatore, since the collective
  bargaining agreement prevented Baker from laying off a Steward without
  the Union's consent.  (R.141 Beichler's S.J. Mot., Arnold dep. 95-96,
  Apx. pp. __).  Accordingly, Mr. Hossfeld directed a letter from Baker
  Construction to Local 310, to Mr. Liberatore's attention, asking the
  Union to "give due consideration to replacing its site representative."
  (R.140 Union's S.J. Mot. ex. 3, Arnold dep. ex. 17, Apx. pg. __).
  Mr. Liberatore would not agree to remove Mr. Carson based on allegations
  of sexual harassment.  (R.141 Beichler's S.J. Mot., Arnold dep. at
  100, Apx. pg. __; R.140 Union's S.J. Mot. ex. 9, Crawford dep. at
  122, Apx. pg. __).  However, eventually Mr. Liberatore did agree to
  remove Mr. Carson as Steward for a more general work-related reason.
  (R.141 Beichler's S.J. Mot., Arnold dep. at 99-100, Apx. pp. __).
  Mr. Liberatore's response letter to Mr. Hossfeld stated that Mr. Carson
  would be removed as Union Steward "solely due to the concerns of
  [the Union] as to the performance and effectiveness of the Steward."
  (R.140 Union's S.J. Mot. ex. 3, Arnold dep. ex. 20, Apx. pg. __).
  According to Mr. Biel's testimony, there was nothing wrong with
  Mr. Carson's general performance and effectiveness as a Steward.
  (R.140 Union's S.J. Mot. ex. 4, Biel dep. at 83-84, Apx. pg. __).
  Once the Union removed Mr. Carson from the Steward position, he was
  laid off.  There is conflicting testimony as to who was in control of
  laying him off.  Mr. Hossfeld testified that the Union, and not Baker,
  was in control of laying Mr. Carson off.  (R.141 Beichler's S.J. Mot.,
  Hossfeld dep. at 65, Apx. pg. __).  Mr. Biel, who, according to
  the district court, was the one who laid Mr. Carson off, testified
  that Mr. Crawford actually laid Mr. Carson off.  (R.140 Union's
  S.J. Mot. ex. 5, Biel dep. at 29, 89, Apx. pg. __).  Mr. Crawford,
  however, testified that Mr. Carson's removal was being handled "at a
  level above" him.  (R.140 Union's S.J. Mot. ex. 9, Crawford dep. at 115,
  Apx. pg. __).
  Furthermore, according to  17(C) of the collective bargaining agreement,
  "The Steward shall not be . . . laid off without first notifying the
  Union."  (R.140 Union's S.J. Mot. ex. 9, Crawford dep. ex. 16, Building
  Laborers' Agreement  17(C), Apx. pg. __).  Although the agreement
  calls merely for notice to the Union, several witnesses testified
  that in practice, the Union actually must consent to the removal of
  a Steward.  For example, Mr. Hossfeld testified that under  17(C) of
  the Agreement, the Union, and not Baker, actually decides the Steward's
  fate.  (R.141 Beichler's S.J. Mot., Hossfeld dep. at 65, Apx. pg. __).
  In addition, Mr. Crawford testified that according to the agreement,
  Baker cannot fire a Union Steward without Local 310's cooperation.
  (R.140 Union's S.J. Mot. ex. 9, Crawford dep. at 114, Apx. pg. __).
  Finally, Mr. Biel testified that a contractor would have to go through
  the Union to get rid of a Steward.  (R.152 Beichler's Opp. to Union's
  S.J. Mot., Biel dep. at 70, Apx. pg. __).
  At the same time Mr. Carson was laid off, Ms. Beichler was laid off,
  as well.  According to Mr. Biel, he chose to lay Ms. Beichler off.
  (R.140 Union's S.J. Mot. ex. 5, Biel dep. at 57, Apx. pg. __).
  Mr. Crawford testified, however, that although Mr. Biel was the one
  who prepared the layoff list with Ms. Beichler's name on it, he was
  not the one who actually decided which employees would be laid off.
  (R.152 Beichler's Opp. to Union's S.J. Mot., Crawford dep. at 187,
  Apx. pg. __).  Mr. Crawford testified that it was the Union's decision
  to lay Ms. Beichler off.  (R.141 Beichler's S.J. Mot., Crawford dep. at
  176, Apx. pg. __).
  Mr. Crawford further testified that once when Baker management attempted
  to become involved in the layoff process, Local 310 staged a work
  stoppage in protest.  (R.152 Beichler's Opp. to Union's S.J. Mot.,
  Crawford dep. at 175, Apx. pg. __).  Indeed, Mr. Hossfeld testified
  that the Union would not allow Baker to have control over the laborers.
  (R.141 Beichler's S.J. Mot., Hossfeld dep. at 42-43, Apx. pp. __).
  He testified that Mr. Liberatore, as opposed to Mr. Crawford, had control
  over Local 310 members.  (R.141 Beichler's S.J. Mot., Hossfeld dep. at
  148, Apx. pg. __).
  Mr. Crawford's and Mr. Hossfeld's testimony is corroborated by that of
  Mr. Arnold.  Mr. Arnold testified that Mr. Liberatore refused to rescind
  Ms. Beichler's layoff and allow her to continue working at Baker.
  (R.141 Beichler's S.J. Mot., Arnold dep. at 110, Apx. pg. __).
  Mr. Arnold further testified that when he heard that Local 310
  had decided to lay Ms. Beichler off, he instructed Mr. Crawford to
  continue to pay her out of Baker funds.  (R.141 Beichler's S.J. Mot.,
  Arnold dep. at 109, Apx. pg. __).  Mr. Arnold also testified that had
  it known the Union was going to lay Ms. Beichler off, Baker would have
  tried to intervene with the Union to prevent her from being laid off.
  (R.152 Beichler's Opp. to Union's S.J. Mot., Arnold dep. at 350,
  Apx. pg. __).
  Just after Ms. Beichler was laid off, she called Mr. Liberatore.  He told
  her that she was becoming "a pain in his ass."  (R.147 EEOC's S.J. Mot.,
  Beichler dep. ex. J at 6, Apx. pg. __).  He accused her of going
  "screaming" to the Port Authority with sexual harassment allegations.
  Id.
  As for the alleged reason that Ms. Beichler was laid off, Mr. Biel
  testified that it was because she had been working in the saw shop, and
  the work in the saw shop was "done."  (R.140 Union's S.J. Mot. ex. 5,
  Biel dep. at 57, Apx. pg. __).  However, John Yurglich, a saw shop
  carpenter, testified that everybody worked overtime the Saturday after
  Ms. Beichler was laid off. (R.173 Beichler's Obj. to Mag. Rep. and Rec.,
  Yurglich dep. at 47, Apx. pg. __).  He testified further that within
  a day of Ms. Beichler's layoff, she was replaced by Russ Rizzo, a male
  carpenter tender who went to work in the saw shop.  (R.173 Beichler's
  Obj. to Mag. Rep. and Rec., Yurglich dep. at 53, Apx. pg. __).
  After Ms. Beichler was laid off, she was hired by another company, CECO,
  that was working on the Hall of Fame site.  CECO's laborers crew was also
  represented by Local 310.  (R.147 EEOC's S.J. Mot., Beichler dep. ex. A
  at 2, Apx. pg. __)  Thus, Ms. Beichler continued to work on the same
  site as her fellow Local 310 members.  Once Ms. Beichler began working
  for CECO, a campaign of harassment and intimidation in retaliation
  for her sexual harassment complaints ensued.  In one incident,
  some fellow Union members threw a 2 x 4 within inches of her head.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 441-42, Apx. pp. __).
  When she turned around and asked if they had thrown something at her,
  one of them responded, "Amy, you think everybody is out to get you."
  (R.141 Beichler's S.J. Mot., Beichler dep. at 443, Apx. pg. __).
  As she started to walk away, they threw something else at her.  Id.
  Once while Ms. Beichler was lowering a load from a crane, and she
  was not within view of the crane operator, she was relaying signals
  through another laborer.  Ms. Beichler noticed that this laborer who was
  supposedly assisting her to land the load safely was actually giving
  completely different signals to the crane operator.  This resulted
  in the load coming within three feet of Ms. Beichler.  John Widener,
  a carpenter who was not a Local 310 member, stepped in to help.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 451-54, Apx. pp. __).
  In a second more serious crane incident, Ms. Beichler was trying
  to land a load from a crane, and she was calling for help, while a
  group of laborers stood by and watched her with their arms folded.
  (R.141 Beichler's S.J. Mot., Beichler dep. at 465, Apx. pg. __).  As it
  was a windy day, and the load began spinning, Ms. Beichler was almost
  pinned in by the load.  John Yurglic, a carpenter who was not a Local
  310 member, stepped in and helped her.  (R.141 Beichler's S.J. Mot.,
  Beichler dep. at 466, Apx. pg. __).
  After this second crane incident, Ms. Beichler complained to Ray Clegg,
  the Union Steward who had replaced Mr. Carson.  Mr. Clegg was known
  as "The Crippler."  (R.141 Beichler's S.J. Mot., Clegg dep. at 80,
  Apx. pg. __).  Ms. Beichler told him she "almost got trapped between
  a column and a load" and "almost got killed because nobody would help
  [her]."  (R.141 Beichler's S.J. Mot., Beichler dep. at 470, Apx. pg. __).
  Mr. Clegg's response was essentially to blame Ms. Beichler for the
  incident.  He stated, "Amy, don't you know better than to put yourself
  between a column and a load."  Id.
  On another occasion, Mr. Clegg told Ms. Beichler that if she "would stop
  talking to the bitch in the office, things would get a lot easier" for
  her.  (R.141 Beichler's S.J. Mot., Beichler dep. at 477, Apx. pg. __).
  This referred to the fact that Ms. Beichler and Ms. Lia had conferred
  about being sexually harassed.  Mr. Clegg told Ms. Beichler that some
  men had been laid off the week before, and the only reason she was still
  on the job was because she was "a fucking female."  (R.141 Beichler's
  S.J. Mot., Beichler dep. at 479, Apx. pg. __).
  Ms. Beichler testified that the reason her fellow Union members were
  mistreating her was that she "was being paid back" for complaining
  about Mr. Carson's sexual harassment.  (R.141 Beichler's S.J. Mot.,
  Beichler dep. at 469, Apx. pg. __).  When Ms. Beichler asked two of her
  fellow Union members why they were doing this to her and what she had
  ever done to them, one of them responded, "You're a fucking disgrace
  to the union and a piece of shit, and if you don't get the fuck away
  from me, I'll beat the shit out of you."  (R.141 Beichler's S.J. Mot.,
  Beichler dep. at 482, Apx. pg. __).
  When Ms. Beichler complained to Mr. Liberatore about the retaliatory
  harassment, he told her "give it back to them" and "balls up."  (R.141
  Beichler's S.J. Mot., Beichler dep. at 536, Apx. pg. __).  He then told
  her to go back to work.  Id.  On or about May 18, 1994, Ms. Beichler
  could no longer tolerate the severe and pervasive harassment, and,
  accordingly, she left her job.
  Ms. Beichler and Ms. Lia filed charges of discrimination alleging
  sexual harassment and retaliation.  In June 1996, the Commission sued
  Baker and the Union for the sexual harassment of both women and for the
  retaliation against Ms. Beichler.  Ms. Lia and Ms. Beichler intervened
  in the Commission's lawsuit.  The Commission settled its claims against
  Baker in February 1999.  The parties then filed cross-motions for
  summary judgment.  The district court denied the Commission's summary
  judgment motion and granted in part the Union's motion.
  B.  District Court Decision
  In its summary judgment motion, the Union conceded, for purposes of
  argument, that Mr. Carson's conduct constituted sexual harassment that
  created a hostile environment for Ms. Beichler and Ms. Lia.  Thus,
  the district court only had to determine whether the Union could be
  held liable for the harassment.  First addressing the issue (raised by
  intervenor Beichler) whether the Union could be liable as an "employer"
  under 42 U.S.C.  2000e-2(a), the court ruled that it could not.<2>
  The district court then turned to the issue whether the Union could be
  liable as a "labor organization" under 42 U.S.C.  2000e-2(c).  The court
  acknowledged that the Union might be liable as a labor organization
  under the plain language of the statute (R.185 Memorandum Opinion at 19,
  Apx. pg. __), but it observed that "Ms. Beichler does not argue [the
  Union] is liable under the plain language of the statute."  (Id. at 22,
  Apx. pg. __).  The district court ended its analysis of this issue by
  stating that "[t]he EEOC has not argued [the Union] is liable under 42
  U.S.C.  2000e-2(c)."  (R.185 Memorandum Opinion at 22, Apx. pg. __);
  see also id. at 19 n. 13, Apx. pg. __ ("While Ms. Beichler argues [the
  Union] is liable for sexual harassment under 42 U.S.C.  2000e-2(c),
  the EEOC does not join in this argument.")<3>
  The district court next turned to the issue whether the Union is
  liable for retaliating against Ms. Beichler.  The court first considered
  whether the Union retaliated against Ms. Beichler by ordering her layoff.
  The court concluded that "there is no evidence to support the allegation
  [that the Union] ordered Ms. Beichler's layoff."  (R.185 Memorandum
  Opinion at 23, Apx. pg. __).  In reaching this decision, the district
  court credited what it viewed as "the undisputed testimony" of Mr. Biel,
  that he, rather than the Union, made the decision to lay Ms. Beichler
  off.  (Id. at 23, Apx. pg. __).  Accordingly, the district court granted
  the Union's motion for summary judgment on what it termed "the first
  retaliation claim."  (Id. at 24, Apx. pg. __).  However, a portion
  of the Commission's retaliation claim survived summary judgment.
  The district court denied the Union's motion as to what it called
  the "second retaliation claim," (Id. at 14, 24, Apx. pg. __) i.e.,
  the claim that Ms. Beichler's fellow Union members subjected her to
  harassment in retaliation for having complained about sexual harassment.
  The district court ordered that this claim would proceed to trial.
  (Id. at 14, Apx. pg. __).<4>
  The district court next addressed the issue whether the Commission has
  "standing" to sue the Union for Ms. Lia's harassment.<5>  (Id. at 24,
  Apx. pg. __).  The district court distinguished between the Commission's
  sexual harassment claims on behalf of Ms. Lia and Ms. Beichler because
  Ms. Lia is not a Union member.  However, the court did not explicitly
  decide that a union can escape liability for the harassment of a
  non-union member.  (Id. at 24-25, Apx. pg. __).  Rather than actually
  deciding the issue, the district court instead stated that even if
  Ms. Lia could sue the Union as a non-member, the Union is not liable
  to her as an employer or as a labor organization, for the same reasons
  it is not liable to Ms. Beichler.  (Id. at 25, Apx. pg. __).

 SUMMARY OF ARGUMENT

  The district court incorrectly held that the Union is not liable for
  hostile environment sexual harassment.  Under 42 U.S.C.  2000e-2(c)(1)
  and under the seminal case interpreting that section, Goodman v. Lukens
  Steel Co., 482 U.S. 656 (1987), a labor organization discriminates
  in violation of Title VII when it ignores complaints of harassment on
  impermissible grounds (for example, race or gender bias), or in deference
  to the perceived desires of its membership.  Several circuits have upheld
  union liability under this theory for racially and/or sexually hostile
  work environments.  Under Goodman and its progeny, Local 310 is liable
  because even after Ms. Beichler and Ms. Lia complained about sexual
  harassment to Mr. Liberatore, the top Union official, the Union did
  nothing to remedy the problem.  Instead, Mr. Liberatore repeatedly made
  light of the situation and expressed his opinion that "it's the nature
  of the beast in this industry."  Mr. Liberatore refused to remove the
  Union Steward/harasser from the workplace even after he knew the details
  of Mr. Carson's behavior.  Moreover, Union officials had never been
  trained about sexual harassment or about how to handle a complaint.
  Based on these facts, a reasonable jury could find that the Union
  is liable not only for its own discriminatory conduct, but also for
  causing the employer, Baker, to discriminate and for acquiescing in
  Baker's unlawful conduct.
  In addition, the fact that Ms. Lia is a non-Union member does not
  provide the Court with an alternative ground for affirmance as to the
  Commission's sexual harassment claim on her behalf.  According to the
  plain language of  2000e-2(c), Title VII prohibits a labor organization
  from discriminating against "any individual" or from causing the
  employer to discriminate against "an individual" on the basis of sex.
  The statute does not limit union liability to situations where a
  "member" is unlawfully discriminated against, but instead addresses
  discriminatory conduct against any "individual."  Accordingly, the
  Union would be liable for the discrimination against both Ms. Beichler
  and Ms. Lia, without regard to their status as Union members.
  As to the Commission's retaliation claim, the district court erred in
  granting summary judgment to the Union.  The district court incorrectly
  ruled that there is no evidence of Union involvement in Ms. Beichler's
  layoff.  The testimony of various witnesses, including testimony that it
  was the Union's decision to lay Ms. Beichler off, raises a genuine issue
  of material fact as to the Union's involvement.  Furthermore, there is
  record evidence that would allow a reasonable jury to infer that the
  stated reason for laying Ms. Beichler off, an alleged lull in work, was
  actually a pretext for discrimination.  Accordingly, the Court should
  reverse the district court's grant of summary judgment to the Union.

 STANDARD OF REVIEW

  This Court reviews a grant of summary judgment de novo, viewing the
  evidence and drawing inferences in the light most favorable to the
  nonmoving party.  Campbell v. Grand Trunk Western R.R. Co., 238 F.3d 772,
  775 (6th Cir. 2001).  Summary judgment is appropriate only if there is no
  genuine issue as to any material fact and the moving party is entitled
  to judgment as a matter of law.  Peck v. Bridgeport Machines, Inc., 237
  F.3d 614, 617 (6th Cir. 2001) (citing Fed. R. Civ. P. 56(c)); see also
  Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).  In reviewing a grant
  of summary judgment, the Court may not make credibility determinations.
  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).  Furthermore,
  "summary judgment will not lie . . . if the evidence is such that
  a reasonable jury could return a verdict for the nonmoving party."
  Id. at 248.

 ARGUMENT

 I. THE DISTRICT COURT ERRED IN RULING ON SUMMARY JUDGMENT THAT THE UNION
 IS NOT LIABLE AS A "LABOR ORGANIZATION" UNDER 42 U.S.C.  2000e-2(c).
  A. The Plain Language of 42 U.S.C.  2000e-2(c) and Case Law Interpreting
  that Section Demonstrate that the Union is Liable for Sexual Harassment.
  The district court erred in concluding that the Union is not liable as
  a "labor organization"<6> under 42 U.S.C.  2000e-2(c).  At the outset,
  it should be noted that the district court is simply incorrect in its
  assessment that the Commission failed to argue Union liability under 
  2000e-2(c).<7>  At every stage of this litigation, the Commission has
  argued that the Union is liable pursuant to  2000e-2(c).<8>  Under
  that section, it is unlawful for a labor organization "to exclude or to
  expel from its membership, or otherwise to discriminate against, any
  individual because of [her] . . . sex."  42 U.S.C.  2000e-2(c)(1).
  That section also imposes liability on a labor organization for
  "caus[ing] or attempt[ing] to cause an employer to discriminate against
  an individual in violation of this section."  42 U.S.C.  2000e-2(c)(3).
  The seminal case (which the district court failed to address) concerning
  a union's liability under  2000e-2(c) is Goodman v. Lukens Steel
  Co., 482 U.S. 656 (1987).  There, the plaintiffs sued their employer
  and union<9> for race discrimination under Title VII and 42 U.S.C. 
  1981.  Id. at 658-59.  The district court concluded that the union
  was liable for "failing to challenge discriminatory discharges of
  probationary employees, failing and refusing to assert instances of
  racial discrimination as grievances, and in tolerating and tacitly
  encouraging racial harassment."  Id. at 659-60.  The court of appeals
  affirmed the liability judgment against the union.  Id. at 660.
  In reviewing the question of the union's liability under Title VII,
  the Supreme Court stated that according to the plain language of the
  statute, when a union deliberately chooses, on the basis of race,
  not to process a grievance involving a claim of racial discrimination
  and harassment, it violates  2000e-2(c)(1).  Id. at 667.  The Court
  observed that the union "categorized racial grievances as unworthy of
  pursuit and, while pursuing thousands of other legitimate grievances,
  ignored racial discrimination claims on behalf of blacks, knowing
  that the employer was discriminating in violation of the contract."
  Id. at 669.  In the Court's view, the district court properly construed
  Title VII when it held that a "union which intentionally avoids asserting
  [race] discrimination claims, either so as not to antagonize the employer
  . . . or in deference to the perceived desires of its white membership"
  is liable under Title VII.  Id.; see also Wilson v. Myers, 823 F.2d 253,
  257 (8th Cir. 1987) (where the union failed to investigate complaints
  of racial harassment and failed to take action to prevent racial abuse,
  the union may be held liable for condoning racial discrimination).  The
  holding in Goodman applies to sex discrimination claims just as it does
  to race discrimination claims.  Thus, where, as here, a union ignores a
  complaint of sexual harassment because of the nature of the complaint,
  it violates Title VII's prohibition against sex discrimination.
  Indeed, relying on Goodman, the court in EEOC v. Regency Architectural
  Metals Corp., 896 F. Supp. 260, 269 (D. Conn. 1995), aff'd sub
  nom. EEOC v. Shopman's Local 832, No. 96-6039, 1997 WL 216202 (2d
  Cir. Apr. 29, 1997), concluded that the union violated  2000e-2(c)(1)
  by intentionally avoiding the plaintiff's complaints of a sexually
  hostile work environment "in deference to the perceived desires of
  its male membership."  The plaintiff, who had been raped by a fellow
  union member with whom she was forced to continue working, complained
  to the union's business agent about having to work in proximity to the
  rapist.  The business agent, rather than investigating the plaintiff's
  complaint or pursuing a grievance on her behalf, merely told her that her
  co-workers believed "that she had been drunk at the time of the alleged
  rape, and that her sexual habits were generally loose."  Id. at 265.
  The court observed that because the business agent was elected by
  union members, "he had a strong reason to cater to the prejudices of
  his overwhelmingly male constituency."  Id. at 269.  The court also
  noted that union membership "was shot through with sexist attitudes
  towards the handful of female workers."  Id.  Accordingly, the court
  found the union liable for the sexually hostile work environment.
  Likewise in Woods v. Graphic Communications, 925 F.2d 1195 (9th
  Cir. 1991),<10> the court affirmed a finding of union liability where
  the union was well aware of a racially hostile work environment, yet
  did nothing to correct the problem.  Several of the racially offensive
  acts in Woods were committed by the union steward.  The court stated
  that "a union may be liable for the acts of its stewards, even when they
  violate union policy."  Id. at 1202.  Despite the plaintiff's repeated
  complaints, the union refused to discipline the steward, or any other
  union member, and even specifically rejected the idea that the employer
  should discipline union members for the racial harassment.  Id. at 1198,
  1200.  According to the court, this factual scenario brought the case
  "squarely within the rule of Goodman."  Id. at 1200.  By intentionally
  failing to take action to correct the pervasively hostile environment,
  the union "effectively ratified the harassment."  Id. at 1202.  Thus,
  the court not only affirmed the district court's finding of liability
  but an award of punitive damages, as well.
  Under Goodman and its progeny, there is ample evidence to withstand
  summary judgment on the question whether the Union is liable under 
  2000e-2(c)(1) for the sexually hostile work environment at issue here.
  Ms. Beichler complained to Mr. Liberatore on several occasions,
  outlining Mr. Carson's treatment of her.  Ms. Lia also went to the
  Union with her complaints about Mr. Carson.  Mr. Liberatore had a legal
  obligation to investigate the complaints and to take remedial action.
  Instead, he laughed and placed the blame on Ms. Beichler for being
  "too nice to the guys," and told Ms. Lia "I will see you in court."
  (R.141 Beichler's S.J. Mot., Beichler dep. at 147, Apx. pg. __; R.140
  Union's S.J. Mot. ex. 2 at 3, Lia's Ans. to Interrog., Apx. pg. __).
  Mr. Liberatore did nothing to remedy the situation and instead
  exacerbated the harassment.  Shortly after she lodged a complaint,
  Ms. Beichler saw Mr. Carson and Mr. Liberatore laughing together.
  (R.147 EEOC's S.J. Mot., Beichler dep. ex. J at 4, Apx. pg. __).
  According to Mr. Liberatore, he told Mr. Carson, "Hey, don't play
  games on the job site like that."  (R.140 Union's S.J. Mot. ex. 12,
  Liberatore dep. at 204, Apx. pg. __).  Mr. Liberatore acknowledged
  that he took no affirmative steps toward Mr. Carson's removal from
  the job site.  (R.141 Beichler's S.J. Mot., Liberatore dep. at 259,
  Apx. pg. __).  When Baker finally asked Mr. Liberatore to consider
  removing Mr. Carson, he refused to take any action against Mr. Carson
  based on the sexual harassment.  (R.141 Beichler's S.J. Mot., Arnold
  dep. at 100, Apx. pg. __; R.140 Union's S.J. Mot. ex. 9, Crawford dep. at
  122, Apx. pg. __).  A reasonable jury could infer that Mr. Liberatore
  purposely refused to heed Ms. Beichler's and Ms. Lia's  complaints in
  deference to the perceived desires of Local 310's mostly male membership,
  or simply due to gender bias.
  In Mr. Liberatore's own words, "it's the nature of the beast in
  this industry."  (R.141 Beichler's S.J. Mot., Liberatore dep. at 203,
  Apx. pg. __).  Mr. Liberatore's response amounted to telling Ms. Beichler
  to get used to it--in other words, a woman's complaints about sexual
  harassment are not about to change that "beast," even when the conduct
  complained of violates federal law.  In Goodman terms, the Union not
  only tolerated, but tacitly encouraged, sexual harassment.  See Goodman,
  482 U.S. at 665.
  Moreover, the fact that the Union Steward and various other Union
  officials had never been trained about sexual harassment is another
  glaring indication of the inadequacy of the Union's response mechanism.
  Union officials who have never been trained about their legal obligations
  to prevent and remedy sexual harassment are certainly ill-equipped to
  handle complaints effectively.  The Union should have had a mechanism
  in place to receive and properly handle sexual harassment complaints.
  Instead, as in Goodman, the Union categorized complaints of sexual
  harassment as "unworthy of pursuit."  Goodman, 482 U.S. at 669.
  Thus, under Goodman and its progeny, Local 310 is liable under 
  2000e-2(c)(1).
  In addition to  2000e-2(c)(1), courts have also relied on 
  2000e-2(c)(3) to recognize union liability for failure to take remedial
  action to correct a hostile work environment.  In Marquart v. Lodge 837,
  Int'l Ass'n of Machinists and Aerospace Workers, 26 F.3d 842, 845 (8th
  Cir. 1994), for example, the plaintiff alleged that her employer created
  a hostile work environment and that the union refused to process her
  complaints because the perpetrators of the harassment were union members.
  The Eighth Circuit, in deciding that the district court improperly
  awarded attorney's fees to the union after the plaintiff voluntarily
  dismissed her case, stated that this factual scenario could support
  a "general theory of union liability," namely, that the union caused
  the employer to discriminate within the meaning of  2000e-2(c)(3)
  in refusing to process the plaintiff's sexual harassment claim.  Id.
  In other words, under this theory, the union's refusal to process the
  sexual harassment complaint would violate Title VII because the union
  would thereby be helping or encouraging the employer to discriminate.
  Id. at 853.  In a similar vein, the Sixth Circuit has recognized that
  a "labor organization can be held jointly and severally liable under
  Title VII for acquiescing in the discriminatory practices of the
  employer."  Farmer v. ARA Services, Inc., 660 F.2d 1096, 1104 (6th
  Cir. 1981); see also Romero v. Union Pac. R.R., 615 F.2d 1303, 1311
  (10th Cir. 1980) ("A union cannot acquiesce in a company's prohibited
  employment discrimination and expect to evade Title VII liability for
  such discrimination.").
  This theory applies to the case at bar.  Mr. Arnold, Mr. Crawford,
  Mr. Hossfeld, and Mr. Biel (Baker management and Baker foreman)
  all testified that under  17(C) of the collective bargaining
  agreement, the Union would have to consent to Mr. Carson's removal.
  (R.141 Beichler's S.J. Mot., Arnold dep. at 95-96, Apx. pp. __; R.140
  Union's S.J. Mot. ex. 9, Crawford dep. at 114, Apx. pg. __; R.141
  Beichler's S.J. Mot., Hossfeld dep. at 65, Apx. pg. __; R.152 Beichler's
  Opp. to Union's S.J. Mot., Biel dep. at 70, Apx. pg. __).  As discussed
  above, the Union would not consent to removing Mr. Carson on grounds
  of sexual harassment.  (R.141 Beichler's S.J. Mot., Arnold dep. at
  100, Apx. pg. __; R.140 Union's S.J. Mot. ex. 3, Arnold dep. ex. 20,
  Apx. pg. __; R.140 Union's S.J. Mot. ex. 9, Crawford dep. at 122,
  Apx. pg. __).  In fact, once apprised that the Union Steward was
  sexually harassing women in the Baker workplace, the Union took no
  remedial action.  In failing to take action to remove Mr. Carson, the
  Union in effect caused Baker to discriminate against Ms. Beichler and
  Ms. Lia within the meaning of  2000e-2(c)(3).
  In the district court's view, there was no employer discrimination in
  which the Union could acquiesce.  (R.185 Memorandum Opinion at 21,
  Apx. pg. __).  This is simply incorrect.  Moreover, this view is
  inconsistent with the Union's concession on summary judgment that a
  hostile environment existed.
  Baker had a legal obligation under Title VII to provide a workplace free
  of unlawful sexual harassment.  Mr. Carson was a Baker employee with
  the power to influence hiring and firing decisions.  (R.152 Beichler's
  Opp. to Union's S.J. Mot., Crawford dep. at 398, Apx. pg. __; R.160
  Union's Reply to Lia's Br. in Opp., Lia dep. at 34, Apx. pg. __; R.147
  EEOC's S.J. Mot., Beichler dep. ex. A at 1, Apx. pg. __).  He created
  a severe and pervasive hostile environment for Ms. Beichler and Ms. Lia
  in the Baker workplace.  Thus, not only is the Union liable for its own
  affirmative acts of unlawful discrimination under  2000e-2(c)(1), but it
  is also liable under  2000e-2(c)(3) for causing Baker to discriminate,
  as well.  Consequently, the district court erred in granting summary
  judgment in favor of the Union.
  B. The Fact that One Charging Party is a Non-Union Member Does Not
  Provide an Alternative Ground for Affirmance as to the Commission's
  Claim on Her Behalf.
  On summary judgment, the Union argued that even if  2000e-2(c) could
  be interpreted to impose liability when a union refuses to file a
  grievance to redress a claim of sexual harassment, that section has
  no application to the Commission's claim on behalf of Ms. Lia because
  she is not a Union member.  (R.139, Union's S.J. Mot. at 17-18).
  The district court framed this issue as whether the Commission has
  "standing" to sue Local 310 for the sexual harassment of Ms. Lia.
  (R.185 Memorandum Opinion at 24, Apx. pg. __).<11>  The district court,
  however, avoided deciding the issue, instead ruling that the Union is
  not liable for Ms. Lia's harassment for the same reasons it is not
  liable for Ms. Beichler's harassment.  Should this Court agree with
  the Commission that the Union is liable under  2000e-2(c) for the
  hostile environment it created and fostered, the Court will then have
  to decide whether the Union may be held liable when a non-Union member
  is subjected to that hostile environment.  The Commission submits that
  it may.  Accordingly, the fact that Ms. Lia is a non-Union member does
  not provide an alternative ground for affirmance of the Commission's
  claim on her behalf.
  The starting point for interpreting any statute is the language
  of the statute itself.  United States v. Ron Pair Enters., Inc.,
  489 U.S. 235, 241 (1989).  The plain language of the statute makes
  clear that a union may be liable to a non-union member.  As discussed
  above, Title VII makes it unlawful for a labor organization:  1) "to
  discriminate against[] any individual because of [her] . . . sex"; and
  2) "to cause or attempt to cause an employer to discriminate against an
  individual."  42 U.S.C.  2000e-2(c)(1) & (3) (emphases added).  Thus,
  the statute's prohibitions are not limited to discriminatory conduct
  aimed at "members," but instead are addressed to discriminatory conduct
  against any "individual," regardless of whether she is a union member.
  In matters of statutory construction, "[i]f the intent of Congress is
  clear, that is the end of the matter; for the court . . . must give
  effect to the unambiguously expressed intent of Congress."  Chevron
  U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
  842-43 (1984); see also Ron Pair, 489 U.S. at 241 (where statute's
  language plainly expresses congressional intent, courts must enforce
  it according to its terms).
  Perhaps because the plain language of the statute expressly prohibits a
  union from discriminating against "individuals" as opposed to "members,"
  there is a dearth of case law addressing this point.  In EEOC v. General
  Motors Corp., 11 F. Supp. 2d 1077, 1081 (E.D. Mo. 1998), the court
  was faced with the question whether a union could be held liable for
  discriminatory conduct "directed at or affecting individuals it does not
  represent."  The court, relying on the plain language of the statute,
  found that  2000e-2(c)(3) "does not limit the union's responsibility
  for discrimination to actions against its membership."  General Motors,
  11 F. Supp. 2d at 1081.  Section 2000e-2(c)(1) likewise prohibits
  discrimination against an "individual" as opposed to a "member."
  Consequently, the Union can be held liable for the discrimination against
  both charging parties, regardless of their status as Union members.

 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE UNION
 ON THE COMMISSION'S CLAIM OF RETALIATORY LAYOFF.

  The district court erred in granting summary judgment to the Union on
  the Commission's claim of retaliation based on Ms. Beichler's layoff.
  Title VII expressly prohibits retaliation by a labor organization
  against a union member.  According to 42 U.S.C.  2000e-3(a),
 [i]t shall be an unlawful employment practice for . . . a labor
 organization to discriminate against any member thereof or applicant
 for membership, because he has opposed any practice made an unlawful
 employment practice by this subchapter, or because he has made a charge,
 testified, assisted, or participated in any manner in an investigation,
 proceeding, or hearing under this subchapter.
 In order to establish a prima facie case of retaliation under Title VII,
 a plaintiff must show that: "(1) she engaged in activity protected by
 Title VII; (2) this exercise of protected rights was known to defendant;
 (3) defendant thereafter took adverse employment action against the
 plaintiff . . .; and (4) there was a causal connection between the
 protected activity and the adverse employment action."  Morris v. Oldham
 County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).
  Once the plaintiff raises a presumption of discrimination through
  establishment of the prima facie case, the defendant then carries
  the burden of producing a legitimate nondiscriminatory reason for its
  conduct.  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
  see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
  253 (1981).  The burden then shifts back to the plaintiff to show that
  the reason given by the employer is not the true reason, but instead
  is a pretext for discrimination.  McDonnell Douglas, 411 U.S. at 804;
  see also Burdine, 450 U.S. at 253.  A plaintiff may demonstrate pretext
  "by showing that the employer's proffered explanation is unworthy of
  credence."  Burdine, 450 U.S. at 256; see also Reeves v. Sanderson
  Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (2000) ("a plaintiff's
  prima facie case, combined with sufficient evidence to find that the
  employer's asserted justification is false, may permit the trier of
  fact to conclude that the employer unlawfully discriminated").
  According to the district court, there is no record evidence to
  support the allegation that the Union ordered Ms. Beichler's layoff.
  This finding is based on the district court's view that "the undisputed
  testimony" of Mr. Biel, a Baker foreman, established that he made the
  decision to lay off Ms. Beichler.  (R.185 Memorandum Opinion at 23,
  Apx. pg. __).  The district court erred in granting summary judgment
  on this ground because there is a genuine issue of material fact as
  to the Union's involvement in Ms. Beichler's layoff.  In fact, there
  is a plethora of testimony about the Union's role in Ms. Beichler's
  layoff.  Contrary to the district court's finding, various witnesses
  testified that the Union was responsible for laying Ms. Beichler off.
  This evidence and the circumstances surrounding Ms. Beichler's layoff
  would allow a reasonable jury to infer that the Union retaliated against
  Ms. Beichler for complaining about sexual harassment.
  For example, Mr. Crawford testified that although Mr. Biel was the one
  who prepared the layoff list, he was not the one who made the actual
  decision of who should be on that list.  (R.152 Beichler's Opp. to
  Union's S.J. Mot., Crawford dep. at 187, Apx. pg. __).  Mr. Crawford
  also testified unequivocally that it was the Union's decision to lay
  Ms. Beichler off.  (R.141 Beichler's S.J. Mot., Crawford dep. at 176,
  Apx. pg. __).  In fact, according to Mr. Crawford, once when Baker
  management attempted to become involved in the layoff process, Local 310
  staged a work stoppage in protest.  (R.152 Beichler's Opp. to Union's
  S.J. Mot., Crawford dep. at 175, Apx. pg. __).
  According to Mr. Arnold's testimony, Mr. Liberatore refused to rescind
  Ms. Beichler's layoff to allow her to continue working at Baker.
  (R.141 Beichler's S.J. Mot., Arnold dep. at 110, Apx. pg. __).
  When Mr. Arnold heard that Local 310 had decided to lay Ms. Beichler
  off, he instructed Mr. Crawford to continue to pay her out of Baker
  funds.  (R.141 Beichler's S.J. Mot., Arnold dep. at 109, Apx. pg. __).
  Mr. Arnold also testified that, had it known Ms. Beichler was slated
  for layoff, Baker would have tried to intervene with the Union to
  prevent her layoff.  (R.152 Beichler's Opp. to Union's S.J. Mot.,
  Arnold dep. at 350, Apx. pg. __).
  Mr. Hossfeld's testimony corroborated that of Mr. Crawford and
  Mr. Arnold.  Mr. Hossfeld testified that the Union would not allow
  Baker to have control over the laborers.  (R.141 Beichler's S.J. Mot.,
  Hossfeld dep. at 42-43, Apx. pp. __).  He testified that Mr. Liberatore,
  as opposed to Mr. Crawford, had control over Local 310 members.
  (R.141 Beichler's S.J. Mot., Hossfeld dep. at 148, Apx. pg. __).
  Mr. Crawford's, Mr. Arnold's, and Mr. Hossfeld's testimony  demonstrates
  that, contrary to the district court's finding, Mr. Biel's testimony is,
  indeed, disputed.  Thus, the Commission has raised a genuine issue of
  material fact as to the Union's involvement in Ms. Beichler's layoff.
  There is also evidence that the reason given for Ms. Beichler's layoff
  is, in reality, a pretext for unlawful retaliation.  Mr. Biel testified
  that the reason Ms. Beichler was laid off was because she had been
  working in the saw shop, and the work in the saw shop was "done."  (R.140
  Union's S.J. Mot. ex. 5, Biel dep. at 57, Apx. pg. __).  However, John
  Yurglich, a saw shop carpenter, testified that everybody worked overtime
  the Saturday after Ms. Beichler was laid off. (R.173 Beichler's Obj. to
  Mag. Rep. and Rec., Yurglich dep. at 47, Apx. pg. __).  He also testified
  that within a day of Ms. Beichler's layoff, she was replaced by Russ
  Rizzo, a male carpenter tender who went to work in the saw shop.  (R.173
  Beichler's Obj. to Mag. Rep. and Rec., Yurglich dep. at 53, Apx. pg. __).
  Mr. Yurglich's testimony raises a genuine issue of material fact as
  to whether the stated reason for Ms. Beichler's layoff was pretextual.
  This evidence would allow a reasonable jury to find that a lull in work
  was not the real reason Ms. Beichler was laid off.  A reasonable jury
  could instead infer that the Union designated Ms. Beichler for layoff in
  retaliation for complaining about Mr. Carson's harassment.  Therefore,
  for this additional reason, the district court erred in granting summary
  judgment for the Union on the Commission's retaliation claim.

 CONCLUSION

  For the foregoing reasons, the Commission urges the Court to reverse
  the district court's grant of summary judgment and remand for further
  proceedings.
 Respectfully submitted,
 GWENDOLYN YOUNG REAMS
 Associate General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel

 LORRAINE C. DAVIS
 Assistant General Counsel

 CAREN I. FRIEDMAN
 Attorney

 EQUAL EMPLOYMENT OPPORTUNITY
  COMMISSION
 1801 L Street, NW, 7th Floor
 Washington, D.C. 20507
 (202) 663-4720

 April 19, 2001CERTIFICATE OF COMPLIANCE
  I hereby certify that this brief complies with the type-volume
  limitations set forth in Fed. R. App. P. 32(a)(7).  The brief is printed
  in 12-point Courier New and contains 9,074 words.
        ______________________________
        Caren I. Friedman

 CERTIFICATE OF SERVICE

  I hereby certify that on this 19th day of April 2001, this proof brief
  was mailed first class postage prepaid to the Clerk of Court, and a true
  and correct copy was mailed first class postage prepaid to counsel of
  record at the following addresses:
     Richard L. Stoper, Esq.
     ROTATORI, BENDER, GRAGEL,
       STOPER & ALEXANDER CO., LPA
     526 Superior Avenue, East, Suite 800
     Cleveland, Ohio 44114

     Dennis J. Niermann, Esq.
     4070 Mayfield Road
     Cleveland, Ohio 44121-3031

        ______________________________
        Caren I. FriedmanAPPELLANT'S DESIGNATION

 OF APPENDIX CONTENTS

  Plaintiff-Appellant, pursuant to Sixth Circuit Rules 28(d) and 30(b),
  hereby designates the following items in the district court's record
  as those to be included in the joint appendix:

 DESCRIPTION OF ENTRY
 DATE FILED IN DISTRICT COURT
 RECORD ENTRY NUMBER
 EEOC's Complaint
 6/14/96
 1
 Union's S.J. Mot.
 ex. 2, Lia's Ans. to Interrog. at 2-3
 5/10/99
 140
 Union's S.J. Mot. ex. 3, Arnold dep. ex. 17 & 20
 5/10/99
 140
 Union's S.J. Mot. ex. 5, Biel dep. at 29, 57, 83-84, 89
 5/10/99
 140
 Union's S.J. Mot. ex. 7, Carson dep. at 68
 5/10/99
 140
 Union's S.J. Mot. ex. 9, Crawford dep. at 114-15, 122, 335, ex. 16
 5/10/99
 140
 Union's S.J. Mot. ex. 11, Lia dep. at 27
 5/10/99
 140
 Union's S.J. Mot. ex. 12, Liberatore dep. at 204
 5/10/99
 140
 Beichler's S.J. Mot., Arnold dep. at 95-96, 99-100, 109-110
 5/10/99
 141
 Beichler's S.J. Mot., Beichler dep. at 143, 147, 240, 271-72, 279-80, 306,
 308-10, 312, 321, 333, 441-43, 451-54, 465-66, 469-70, 477, 479, 482, 536
 5/10/99
 141
 Beichler's S.J. Mot., Carson dep. at 173, 280
 5/10/99
 141
 Beichler's S.J. Mot., Clegg dep. at 80
 5/10/99
 141
 Beichler's S.J. Mot., Crawford dep. at 176
 5/10/99
 141
 Beichler's S.J. Mot., Hossfeld dep. at 42-43, 65, 148
 5/10/99
 141
 Beichler's S.J. Mot., Liberatore dep. at 203, 214, 252, 259
 5/10/99
 141
 Beichler's S.J. Mot., Yurglich Aff.
 5/10/99
 141
 EEOC's S.J. Mot. at 10
 5/10/99
 147
 EEOC's S.J. Mot., Beichler dep. ex. A
 5/10/99
 147
 EEOC's S.J. Mot., Beichler dep. ex. J
 5/10/99
 147
 EEOC's S.J. Mot., Lia dep. ex. SS
 5/10/99
 147
 Union's Opp. to EEOC's S.J. Mot., Carson dep. at 113
 6/11/99
 149
 Beichler's Opp. to Union's S.J. Mot., Arnold dep. at 350
 6/14/99
 152
 Beichler's Opp. to Union's S.J. Mot., Biel dep. at 69-70
 6/14/99
 152
 Beichler's Opp. to Union's S.J. Mot., Clegg dep. at 36-37
 6/14/99
 152
 Beichler's Opp. to Union's S.J. Mot., Crawford dep. at 175, 187, 398
 6/14/99
 152
 EEOC's Opp. to Union's S.J. Mot. at 2-5
 6/14/99
 153
 Union's Opp. to Beichler's S.J. Mot., Carson dep. at 174
 6/14/99
 154
 Union's Reply to Lia's Br. in Opp., Lia dep. 34
 7/9/99
 160
 EEOC's Obj. to Mag. Rep. and Rec. at 2-4
 12/17/99
 172
 Beichler's Obj. to Mag. Rep. and Rec., Yurglich dep. at 47, 53
 12/17/99
 173
 Memorandum Opinion
 9/26/00
 185
 Stipulation
 11/14/00
 196
 Order of Dismissal
 11/14/00
 197
 EEOC's Notice of Appeal
 1/12/01
 200

 1Mr. Carson was eventually charged with indecent exposure for exposing
 his penis to Ms. Beichler and Ms. Lia in the workplace.  He was convicted
 and sentenced by a Cleveland Municipal Court judge.

 2The Commission did not argue that the Union is liable as an "employer"
 under  2000e-2(a), contrary to the district court's understanding.
 See R.185 Memorandum Opinion at 17 n. 10, Apx. pg. __ (erroneously stating
 that the Commission argued the Union is liable as an employer under 
 2000e-2(a)).

 3As will be seen, contrary to the district court's assertion, the
 Commission repeatedly argued that the Union is liable as a labor
 organization under 42 U.S.C.  2000e-2(c).  See infra p. 22 and note 8.

 4As noted above, the parties stipulated to the voluntary dismissal of
 this claim.  See supra pp. 1-2.

 5The district court plainly confused the issues of constitutional
 justiciability and statutory coverage.  See infra pp. 31-32 and note 11.

 6A "labor organization," for purposes of Title VII, is defined as "a
 labor organization engaged in an industry affecting commerce, and any
 agent of such an organization, and includes any organization of any kind,
 any agency, or employee representation committee, group, association,
 or plan so engaged in which employees participate and which exists for
 the purpose, in whole or in part, of dealing with employers concerning
 grievances, labor disputes, wages, rates of pay, hours, or other terms or
 conditions of employment, and any conference, general committee, joint
 or system board, or joint council so engaged which is subordinate to a
 national or international labor organization."  42 U.S.C.  2000e(d).

 7See R.185 Memorandum Opinion at 22, Apx. pg. __ ("[t]he EEOC has not
 argued [the Union] is liable under 42 U.S.C.  2000e-2(c)"); id. at 19
 n. 13, Apx. pg. __ ("While Ms. Beichler argues [the Union] is liable
 for sexual harassment under 42 U.S.C.  2000e-2(c), the EEOC does not
 join in this argument.")

 8See, e.g., R.1 EEOC's Complaint at  10-11, Apx. pg. __; R.147 EEOC's
 S.J. Mot. at 10, Apx. pg. __; R.153 EEOC's Opp. to Union's S.J. Mot. at
 2-5, Apx. pp. __; R.172 EEOC's Obj. to Mag. Rep. and Rec. at 2-4,
 Apx. pp. __.  (cont....)
  (cont....) Not only did the district court somehow miss the Commission's
  arguments as to Union liability under  2000e-2(c), but the district
  court also mistakenly conjured up a Commission argument under 
  2000e-2(a).  See R.185 Memorandum Opinion at 17 n.10, Apx. pg. __
  ("Although the EEOC argues [the Union] is liable for sexual harassment
  under 42 U.S.C.  2000e-2(a), it never explains why the union should be
  considered an employer").  The Commission has never argued that the Union
  should be liable as an "employer" under  2000e-2(a).  The Commission
  has solely and repeatedly argued that the Union can be held liable as
  a "labor organization" under  2000e-2(c).

 9Although the plaintiffs actually sued the United Steelworkers of America
 and two of its local unions, for ease of reference, the three entities
 will be combined as "the union."

 10Although Woods arose under 42 U.S.C.  1981 and the Washington State
 Law Against Discrimination, the Ninth Circuit analyzed the claims relying
 on Title VII precedent, including Goodman, since the Title VII standard
 applies equally to those claims.

 11As stated above, in framing the issue as one of "standing," the
 district court confused constitutional justiciability with statutory
 coverage.  There is no question that the Commission has standing to
 sue for the sexually hostile work environment experienced by Ms. Lia.
 See Huish Detergents, Inc. v. Warren County, Kentucky, 214 F.3d 707,
 710 (6th Cir. 2000) ("To establish Article III standing, [plaintiff]
 must demonstrate:  (1) an injury in fact that is actual or threatened;
 (2) a causal connection between the defendant['s] conduct and the alleged
 injury; and (3) a substantial likelihood that the injury will be redressed
 by a favorable decision.") (citing Lujan v. Defenders of Wildlife, 504
 U.S. 555, 560-61 (1992)).  The question is whether the statute can be
 interpreted to cover a claim of sexual harassment against a union when
 the victim of the harassment is a non-union member.