UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011
May 4, 2012
FEDIE R. REDD, PLAINTIFF-APPELLANT,
NEW YORK STATE DIVISION OF PAROLE, DEFENDANT-APPELLEE.
Appeal from a judgment of the United States District Court for the Eastern District of New York, Nicholas G. Garaufis, Judge, granting summary judgment dismissing, inter alia, hostile work environment claim under Title VII, 42 U.S.C. § 2000e et seq., alleging female supervisor's repeated touching of female plaintiff's breasts. See 2010 WL 1177453 (2010).
The opinion of the court was delivered by: Kearse, Circuit Judge:
Redd v. New York State Division of Parole
Argued: November 15, 2011
Before: KEARSE, WALKER, and RAGGI, Circuit Judges.
Vacated in part and remanded.
Plaintiff Fedie R. Redd appeals from a judgment of the United States District Court 8 for the Eastern District of New York, Nicholas G. Garaufis, Judge, dismissing her complaint alleging 9 disparate treatment on the basis of race and gender, retaliation, and sexual harassment by her 10 employer, defendant New York State ("State") Division of Parole ("Division" or "Parole Division"), 11 in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The 12 district court granted the Division's motion for summary judgment dismissing the complaint, ruling, 13 as to the sexual harassment claim, that the alleged touchings of Redd's breasts by a female Division 14 supervisor were minor and incidental, were episodic, may have been accidental, and did not occur 15 because of Redd's sex. On appeal, Redd contends that the supervisor's touchings were sufficiently 16 abusive to support her hostile work environment claim and that summary judgment was inappropriate 17 because there were genuine issues of fact to be tried. We agree that summary judgment dismissing 18 the hostile work environment claim was inappropriate, and we vacate so much of the judgment as 19 dismissed that claim and remand for further proceedings.
2 Redd, who represented herself throughout the proceedings in the district court, has 3 been employed as a parole officer (or "PO") by the Division since April 1990. She complained on 4 a number of occasions that she, inter alia, was denied transfers to offices closer to home, where she 5 resided with her three young daughters; was subjected to racially discriminatory treatment and 6 discipline; was subjected to retaliation for making complaints; and was subjected to sexual 7 harassment. After receiving a right-to-sue letter from the Equal Employment Opportunity 8 Commission ("EEOC"), she commenced the present action to pursue those complaints. On this 9 appeal, however, she pursues only her claim of a hostile work environment due to sexual harassment 10 by a Division supervisor. To the extent pertinent to that claim, the record, taken in the light most 11 favorable to Redd as the party against whom summary judgment was granted, includes the following.
12 A. Redd's Complaints of Sexual Harassment 13 In 2005, Redd worked in a Parole Division office in Queens, New York (the "Queens I 14 Office"); her immediate supervisor was Senior Parole Officer Clifford Crawford. Beginning in 15 February 2005, Area Supervisor Sarah Washington was transferred into the Queens I Office and 16 headed that office. The principal focus of Redd's sexual harassment claim is that on three occasions 17 between mid-April and mid-September 2005, Washington made sexual advances to her, touching 18 Redd's breasts.
In her verified pro se administrative complaint filed with the State's Division of Human 20 Rights, Redd alleged that 3 1 [o]n April 19, 2005, June 16, 2005, and September 15, 2005, Ms. Washington 2 . . . sexually harassed me by brushing up against my breast while I was sitting 3 at the computer, and she rubbed my hand. Ms. Washington never apologized 4 to me for touching me, and I backed away from her to refuse her advances. 5 (Verified Administrative Complaint ¶ 7.) In her pro se complaint in the present action ("Complaint"), 6 to which she attached a copy of her verified administrative complaint, Redd alleged that she "ha[d] 7 been subjected to homosexual advances" (Complaint ¶ 8). Redd described the three 2005 incidents 8 in her deposition. She testified that on April 19, she was in Washington's office reviewing a transfer 9 list, when Washington "brushed up against [Redd's] breasts." (Deposition of Fedie R. Redd ("Redd 10 Dep.") at 142.) Redd testified that she was so "totally thrown off" by this that she spilled water all 11 over the transfer list. (Id.) Redd testified that the second incident occurred on June 16, when she and 12 another parole officer were talking in a hallway. Washington "came up and she touched my breasts 13 and rubbed up against it again in front of this parole officer." (Id.) 14 Redd testified that, as a result of these incidents, in which Washington "had brushed 15 against my breast and felt my breasts," she was uncomfortable around Washington. (Redd Dep. 141.) 16 Washington was not Redd's immediate supervisor, but she repeatedly called Redd into her office.
17 (See, e.g., id. at 145.) Redd complained to her own supervisor and attempted to avoid going into 18 Washington's office; but as Washington was in charge of the entire Queens I Office, Redd had no 19 alternative but to go to Washington's office when summoned. When asked whether she had 20 complained to Washington about the touching, Redd testified, 21 I avoided Ms. Washington at all costs and she knew I was avoiding her but she 22 continued to call me into her office. I talked to my supervisor about it. She 23 just continued to call me into her office and she was the area supervisor and 24 what she said went . . . 25 (Id.)
Redd testified that on September 15, Washington "rubbed up against my breasts again."
2 (Redd Dep. 142.) Redd, at the time, was sitting at a computer in a secretarial area attempting to input 3 information using a new procedure. Washington, without Redd's having asked for her help, went over 4 to Redd, "reached over and touched and brushed up against [Redd's] breast." (Id. at 143.) 5 Washington, in her deposition taken by Redd, testified in pertinent part as follows:
6 Q. Were you present at the [Queens I Office] work location . . . on 7 4/19/05, 6/16/05 and 9/15/05? 8 A. I believe so.
9 Q. On those days, did you have physical contact with me? 10 A. I don't understand what you mean by physical contact.
11 Q. Did you touch me in any inappropriate manner?
12 A. What does inappropriate manner mean?
13 Q. Put your hands on me?
14 A. No.
15 (Deposition of Sarah [E.] Washington ("Washington Dep.") at 6.)
16 Redd testified in her deposition that she had complained about Washington's sexual 17 touchings to Jose Burgos, the Parole Division's Director of Human Resources, but that no action was 18 taken. (See Redd Dep. 144-45.) Burgos, when his deposition was taken by Redd, testified that he did 19 not recall that Redd had ever filed a complaint about Washington "directly" with the Division.
20 (Deposition of Jose A. Burgos ("Burgos Dep.") at 51); however, he appeared to recall that Redd had 21 in fact complained to him that she had been sexually harassed by Washington. In testifying about a 22 disciplinary suspension of Redd on September 16, 2005, and her reinstatement in 2006 as ordered by 23 an arbitrator, Burgos stated that the decision as to whether Redd would be allowed to return to work absent a ruling by the arbitrator was a decision in which there would have been input from 2 Washington. Redd asked:
3 Q. Even if she was sexually harassing me?
4 A. I have no evidence that she was sexually harassing you.
5 Q. Didn't I put in the complaint, did I not complain about her sexually
6 harassing me?
7 A. My recollection is that you complained that Ms.
bumped you and that you viewed that as--bumped you as she passed
9 you viewed that as sexual harassment.
10 Q. I didn't put in the complaint that she bumped me. I put in the 11 complaint that she felt my breast on three different occasions. Did you
12 investigate that?
13 A. I don't have a recollection of you filing that complaint directly with
14 the Division of Parole.
15 (Id. at 50-51 (emphases added).)
16 Parole Division Regional Director James Dress acknowledged that it would be 17 "inappropriate" for a supervisor to "sexually harass[ an employee] by feeling their breast three times."
18 (Deposition of James Dress at 49.)
19 B. The Parole Division's Motion for Summary Judgment
20 The Parole Division moved for summary judgment dismissing Redd's complaint and 21 submitted, inter alia, affirmations by Washington and Burgos. Washington's affirmation, given "to 22 supplement [her] deposition taken by the pro se plaintiff Fedie R. Redd," stated: 23 As I testified in my deposition, on April 19, June 16, and September 15, 2005, 24 I believe I was on duty at the Queens I . . . Office, and I did not touch PO Redd 25 in any inappropriate manner. Nor did I sexually harass or make any other 26 inappropriate physical contact with PO Redd on any other date.
1 (Undated Affirmation of Sarah E. Washington ("Washington Aff.") ¶¶ 1, 6 (emphases added).) 2 Burgos's affirmation "to supplement [his] deposition taken by the pro se plaintiff Fedie R. Redd," 3 stated:
4 As I testified in my deposition, I did not recall ever having received any 5 written sexual harassment complaint by PO Redd against Area Supervisor 6 Washington. In addition, at the time of PO Redd's 2005 suspension, I was not 7 aware of having previously received any written sexual harassment complaints 8 from PO Redd against Washington . . .
9 (Affirmation of Jose A. Burgos dated March 22, 2009 ("Burgos Aff."), ¶¶ 1, 9 (emphases added).) 10 The Division, in its statement pursuant to Local Rule 56.1 ("Rule 56.1 Statement") as 11 to the facts that it contended were undisputed, cited, inter alia, Washington's denial that on April 19, 12 June 16, and September 15, 2005, she had "touch[ed] plaintiff in any inappropriate manner."
13 (Division's Rule 56.1 Statement ¶ 32).) The Division also stated that despite Redd's claim that there 14 was a witness to Washington's alleged touching in the hallway, Redd had "failed to proffer the 15 witness's name or affidavit because that witness allegedly feared retaliation." (Id.) Redd, in a Rule 16 56.1 Statement of facts as to which she contended there were genuine issues to be tried, disputed, inter 17 alia, the Division's assertion that she had failed to identify the witness to Washington's hallway 18 touching of Redd's breasts. (See Redd's Rule 56.1 Statement ¶ 32.) Redd gave the witness's name 19 (see id.), stated that she had previously given it in a confidential list of witnesses (see id.), and 20 submitted a sworn declaration annexing, inter alia, a copy of the document--which was part of the 21 administrative record--in which she had included the witness's name (see Declaration of Fedie R. 22 Redd dated May 19, 2009, Exhibit T).
1 C. The Decision of the District Court
2 The motion for summary judgment was referred to Magistrate Judge Lois Bloom for 3 report and recommendation. The magistrate judge, while recommending that most of Redd's claims 4 be dismissed, recommended that summary judgment be denied as to the claim of sexual harassment 5 by reason of Washington's alleged physical contacts. The magistrate judge concluded that 6 a reasonable jury could conclude that Washington's alleged conduct was 7 sufficiently severe and pervasive to create a hostile work environment.
8 Plaintiff alleges that Washington, her supervisor, touched her breasts on three 9 separate occasions over a five-month period. . . . Plaintiff states that these 10 incidents made her feel "uncomfortable" to the point where she "avoided Ms. 11 Washington at all costs," but that Washington continued to call her into her 12 office. . . . Plaintiff also states that she was reluctant to complain about 13 Washington's actions for fear of being labeled as someone who cannot work 14 with others. . .
15 Although Washington denies ever touching plaintiff in any 16 inappropriate manner, . . . the Court must consider the record in the light most 17 favorable to the plaintiff. . . . Plaintiff has testified that Washington, her 18 supervisor, touched her breasts on three occasions over a five-month period, 19 and that this conduct altered the conditions of her employment. Plaintiff raises 20 a genuine issue of material fact regarding her hostile work environment claim 21 against Washington. Therefore, defendant's motion for summary judgment on 22 this claim should be denied.
23 (Magistrate Judge's Report & Recommendation dated March 2, 2010, at 25.) 24 The Division objected to this aspect of the magistrate judge's recommendation, arguing 25 that 26 three isolated brushes or touches by Washington of plaintiff's chest over a five- 27 month period were neither sufficiently severe nor pervasive enough to alter the 28 conditions of employment, and plaintiff failed to show evidence that a specific 29 basis exists for imputing the objectionable conduct to the employer to make 30 out her prima facie Title VII hostile work environment claim.
31 (Parole Division's Objection to the Magistrate Judge's Report and Recommendation at 3; see also id. 32 at 4-14.) It argued, inter alia, that Redd had failed to show that the harassment occurred because of 8 1 her gender (see id. at 12-14); that she had not shown that the incidents were physically threatening 2 or humiliating, or unreasonably interfered with her work, or had caused her any psychological harm 3 (see, e.g., id. at 9-11); and that although Redd "claim[ed] to have felt 'uncomfortable,'" she had not 4 "tried to avoid Washington by transferring from the office" (id. at 10).
5 In a Memorandum & Order dated March 24, 2010, reported at 2010 WL 1177453, the 6 district judge upheld the Parole Division's objection to the magistrate judge's recommendation that 7 summary judgment be denied as to Redd's hostile work environment claim of physical touching. The 8 court began by noting that a "reasonable jury could find that Redd subjectively perceived her 9 environment to be hostile or abusive." 2010 WL 1177453, at *3. However, the court concluded that 10 Redd has failed . to offer evidence demonstrating that the 11 complained-of conduct was objectively hostile and abusive enough to 12 constitute an "intolerable alteration" of her working conditions sufficient to 13 substantially interfere with her ability to perform her job.
14 Id. (emphasis in original). The court stated that 15 Washington's alleged acts consisted of relatively minor, incidental physical 16 contact. Even drawing all inferences in Redd's favor, the contact may have 17 been purely accidental. There is no basis for concluding that Washington's 18 conduct was physically threatening or humiliating. Moreover, the alleged 19 incidents were episodic, rather than continuous or concerted.
20 Id. (emphases added). Stating that "[s]everal courts have concluded that similar allegations fall below 21 the threshold of severity for a hostile work environment claim," id. (citing Quinn v. Green Tree Credit 22 Corp., 159 F.3d 759, 769 (2d Cir. 1998), and Lewis v. North General Hospital, 502 F.Supp.2d 390, 23 403 (S.D.N.Y. 2007)), the district court ruled that "no reasonable jury could find Washington's 24 conduct to be so severe or pervasive as to be objectively hostile or abusive," 2010 WL 1177453, at 25 *3.
1 The district court also concluded that Redd had not proffered sufficient evidence to 2 permit an inference that Washington had touched Redd's breasts because Redd was a woman: 3 Even if Redd could establish that she was subjected to an objectively 4 hostile or abusive work environment, however, summary judgment for 5 Defendant would be appropriate because Redd has failed to offer evidence that 6 the relevant conduct occurred because of her membership in a protected 7 class. . . . Abusive conduct in the workplace for reasons other than a plaintiff's 8 membership in a protected class is not actionable under Title VII. . . . Here, 9 no reasonable jury could conclude that Washington's alleged conduct was 10 directed at Redd because of her gender.
11 The Supreme Court has explained that "[c]courts and juries have found 12 the inference of discrimination easy to draw in most male-female sexual 13 harassment situations, because the challenged conduct typically involves 14 explicit or implicit proposals of sexual activity; it is reasonable to assume 15 those proposals would not have been made to someone of the same sex." 16 Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80, 118 S.Ct. 998, 140 17 L.Ed.2d 201 (1998). Where a plaintiff alleges same-sex sexual harassment, 18 however, it may not be appropriate to infer that similar conduct would not 19 have been directed at an individual of another sex. See id. The Oncale court 20 described three possible ways, however, in which a plaintiff may prove that 21 same-sex harassment occurred "because of sex." A plaintiff can (1) provide 22 "credible evidence that the harasser was homosexual;" (2) demonstrate that the 23 harasser was "motivated by general hostility to the presence of women in the 24 workplace," or (3) "offer direct, comparative evidence about how the alleged 25 harasser treated members of both sexes [differently] in a mixed-sex 26 workplace." Id.
27 Redd has not offered any credible evidence that Washington's actions 28 were based on her sex. She has not provided any evidence that Washington 29 is a homosexual or was acting based on sexual desire. Likewise, there is no 30 evidence that Washington was motivated by a general hostility toward women 31 or treated men and women differently in a significant way. Redd does not 32 attribute any suggestive or sexual remarks to Washington, nor allege that she 33 directed similar conduct toward others. As such, a jury would have to 34 speculate as to Washington's underlying motivation--if any--for brushing up 35 against Redd. A reasonable jury could not find that, more likely than not, 36 Washington brushed up against Redd because she was female.
Accordingly, there is no genuine issue of material fact regarding the requirement that Redd prove that she was discriminated against because of her sex.
1 2010 WL 1177453, at *4 (emphasis in original) (other internal quotation marks omitted). The court 2 found that summary judgment was appropriate, without reaching the question of whether 3 Washington's conduct could be imputed to the Division, Redd's employer. See id. & n.1.
5 On appeal, Redd, represented by counsel, contends that the district court erred in ruling 6 that there were no genuine issues of material fact to be tried as to her claim of hostile work 7 environment. She argues principally that a reasonable jury could find that Washington's unwelcome 8 touchings constituted discrimination because of sex and were sufficient to create an abusive working 9 environment, altering the conditions of Redd's employment, in violation of Title VII. For the reasons 10 that follow, we conclude that a factfinder crediting Redd's version of the events could permissibly 11 infer that Washington's repeated touching of Redd's breasts constituted intolerable discrimination 12 against Redd because of her sex.
13 A. Summary Judgment Principles
14 The granting of summary judgment is proper only where there is "no genuine dispute 15 as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 16 56(a). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence 17 and determine the truth of the matter but to determine whether there is a genuine issue for trial." 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ("Liberty Lobby"). "Where an issue as 19 to a material fact cannot be resolved without observation of the demeanor of witnesses in order to 11 1 evaluate their credibility, summary judgment is not appropriate." Fed. R. Civ. P. 56(e) Advisory 2 Committee Note (1963).
3 The "'[e]valuation of ambiguous acts'" is a task "'for the jury,'" not for the judge on 4 summary judgment. Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) ("Holtz") (quoting 5 Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir. 1998) ("Gallagher"), abrogated in part on other 6 grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) ("Ellerth")). "'Credibility 7 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts 8 are jury functions, not those of a judge.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 9 150 (2000) (quoting Liberty Lobby, 477 U.S. at 255). The court's role in deciding a motion for 10 summary judgment "is to identify factual issues, not to resolve them." Jasco Tools, Inc. v. Dana 11 Corp., 574 F.3d 129, 156 (2d Cir. 2009) ("Jasco Tools") (emphases added); see, e.g., Graham v. Long 12 Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
13 Summary judgment is inappropriate when the admissible materials in the record "'make 14 it arguable'" that the claim has merit. See, e.g., Jasco Tools, 574 F.3d at 151 (quoting Quinn v. 15 Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980)). On such a motion, "[t]he 16 evidence of the non-movant is to be believed," Liberty Lobby, 477 U.S. at 255; all permissible 17 "inferences are to be drawn in [her] favor," id.; and the court "must disregard all evidence favorable 18 to the moving party that the jury is not required to believe," Reeves, 530 U.S. at 151 (emphasis 19 added). "In sum, summary judgment is proper only when, with all permissible inferences and 20 credibility questions resolved in favor of the party against whom judgment is sought, 'there can be but 21 one reasonable conclusion as to the verdict,'" Kaytor v. Electric Boat Corp., 609 F.3d 537, 546 (2d 22 Cir. 2010) ("Kaytor") (quoting Liberty Lobby, 477 U.S. at 250), "i.e., 'it is quite clear what the truth 12 1 is,'" Kaytor, 609 F.3d at 546 (quoting Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 2 467 (1962)).
3 These principles also govern this Court's review of a grant of summary judgment, 4 which we conduct de novo. See, e.g., Kaytor, 609 F.3d at 546; Petrosino v. Bell Atlantic, 385 F.3d 5 210, 219 (2d Cir. 2004) ("Petrosino"); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998) 6 ("Distasio"). Where "[s]ummary judgment was granted for the employer, . . . we must take the facts 7 alleged by the employee to be true." Ellerth, 524 U.S. at 747; see, e.g., Oncale v. Sundowner Offshore 8 Services, Inc., 523 U.S. 75, 76 (1998); Distasio, 157 F.3d at 61 ("the non-movant will have [her] 9 allegations taken as true" (internal quotation marks omitted)). And we are "obliged . . . to assume that 10 all factual disputes would be resolved in her favor at trial." Petrosino, 385 F.3d at 214 n.2.
11 B. Hostile Work Environment Principles
12 Title VII prohibits an employer from "discriminat[ing] against any individual with 13 respect to his [or her] compensation, terms, conditions, or privileges of employment, because of," inter 14 alia, "such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). "'The phrase "terms, conditions, or 15 privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate 16 treatment of men and women" in employment,' which includes requiring people to work in a 17 discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 18 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) ("Meritor")). Leaving 19 aside for the moment the question of an employer's liability for the acts of its employees, see Part II.D. 20 below, it is established "[w]ithout question, [that] when a supervisor sexually harasses a subordinate 21 because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Meritor, 477 13 1 U.S. at 64 (emphasis added). "[S]ex discrimination consisting of same-sex sexual harassment is 2 actionable under Title VII . . . ." Oncale, 523 U.S. at 82. 3 "For sexual harassment to be actionable, it must be sufficiently severe or pervasive," 4 Meritor, 477 U.S. at 67--both subjectively and objectively, see, e.g., Harris, 510 U.S. at 21-22--"to 5 alter the conditions of [the victim's] employment and create an abusive working environment."
6 Meritor, 477 U.S. at 67 (internal quotation marks omitted). And, of course, the plaintiff must establish 7 that the hostile or abusive treatment was because of his or her sex. See, e.g., Oncale, 523 U.S. at 80. 8 "When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' . . . that is 9 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an 10 abusive working environment,' . . . Title VII is violated." Harris, 510 U.S. at 21 (quoting Meritor, 477 11 U.S. at 65, 67).
12 "[T]he kinds of workplace conduct that may be actionable under Title VII . . . . include 13 '[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a 14 sexual nature.'" Meritor, 477 U.S. at 65 (quoting 29 C.F.R. § 1604.11(a) (1985)). "[W]hether an 15 environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances."
16 Harris, 510 U.S. at 23.
17 These may include the frequency of the discriminatory conduct; its severity; 18 whether it is physically threatening or humiliating, or a mere offensive 19 utterance; and whether it unreasonably interferes with an employee's work 20 performance. The effect on the employee's psychological well-being is, of 21 course, relevant to determining whether the plaintiff actually found the 22 environment abusive. But while psychological harm, like any other relevant 23 factor, may be taken into account, no single factor is required.
24 Id. (emphases added). To "establish this element, a plaintiff need not show that her hostile working 25 environment was both severe and pervasive; only that it was sufficiently severe or sufficiently 14 1 pervasive, or a sufficient combination of these elements, to have altered her working conditions."
2 Pucino v. Verizon Communications, Inc., 618 F.3d 112, 119 (2d Cir. 2010) ("Pucino") (emphases in 3 original); see, e.g., Terry v. Ashcroft, 336 F.3d 128, 148-50 (2d Cir. 2003) (race discrimination); see 4 generally Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998) (standards for what amounts 5 to actionable abuse are the same for racial and sexual harassment). Isolated incidents usually will not 6 suffice to establish a hostile work environment, although we have often noted that even a single 7 episode of harassment can establish a hostile work environment if the incident is sufficiently "severe."
8 E.g., Pucino, 618 F.3d at 119; Kaytor, 609 F.3d at 547; Howley v. Town of Stratford, 217 F.3d 141, 9 153 (2d Cir. 2000); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), abrogated 10 in part on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Torres 11 v. Pisano, 116 F.3d 625, 631 n.4 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1997); see, e.g., Feingold 12 v. New York, 366 F.3d 138, 150 (2d Cir. 2004) ("[A] single act can create a hostile work environment 13 if it in fact work[s] a transformation of the plaintiff's workplace." (internal quotation marks omitted)).
14 The court must take care, however, not to view individual incidents in isolation. In 15 assessing the evidence to determine whether a rational juror could infer that a reasonable employee 16 would have found the abuse so pervasive or severe as to alter her working conditions, "especially in 17 the context of a claim of sexual harassment, where state of mind and intent are at issue, the court 18 should not view the record in piecemeal fashion," Kaytor, 609 F.3d at 548 (internal quotation marks 19 omitted). "The objective hostility of a work environment depends on the totality of the 20 circumstances," viewed from "the perspective . . . of a 'reasonable person in the plaintiff's position, 21 considering all the circumstances [including] the social context in which particular behavior occurs 22 and is experienced by its target.'" Petrosino, 385 F.3d at 221 (quoting Oncale, 523 U.S. at 81).
Nonetheless, while "the central statutory purpose[ of Title VII was] eradicating 2 discrimination" in employment, Franks v. Bowman Transportation Co., 424 U.S. 747, 771 (1976), 3 Title VII "does not set forth 'a general civility code for the American workplace,'" Burlington 4 Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale, 523 U.S. at 80). In 5 Oncale, the Court noted that it had 6 emphasized in Meritor and Harris[ that] the statute does not reach genuine but 7 innocuous differences in the ways men and women routinely interact with 8 members of the same sex and of the opposite sex. The prohibition of 9 harassment on the basis of sex requires neither asexuality nor androgyny in the 10 workplace; it forbids only behavior so objectively offensive as to alter the 11 "conditions" of the victim's employment. "Conduct that is not severe or 12 pervasive enough to create an objectively hostile or abusive work 13 environment--an environment that a reasonable person would find hostile or 14 abusive--is beyond Title VII's purview."
15 Oncale, 523 U.S. at 81 (quoting Harris, 510 U.S. at 21 (emphases ours)). The Court noted that it 16 regarded the objective component both as "crucial and as sufficient to ensure that courts and juries 17 do not mistake ordinary socializing in the workplace--such as male-on-male horseplay or intersexual 18 flirtation--for discriminatory 'conditions of employment.'" Oncale, 523 U.S. at 81 (emphasis added).
19 It pointed out that
20 [i]n same-sex (as in all) harassment cases, th[e] inquiry requires careful 21 consideration of the social context in which particular behavior occurs and is 22 experienced by its target. A professional football player's working 23 environment is not severely or pervasively abusive, for example, if the coach 24 smacks him on the buttocks as he heads onto the field--even if the same 25 behavior would reasonably be experienced as abusive by the coach's secretary 26 (male or female) back at the office. The real social impact of workplace 27 behavior often depends on a constellation of surrounding circumstances, 28 expectations, and relationships which are not fully captured by a simple 29 recitation of the words used or the physical acts performed. Common sense, 30 and an appropriate sensitivity to social context, will enable courts and juries 31 to distinguish between simple teasing or roughhousing among members of the 32 same sex, and conduct which a reasonable person in the plaintiff's position 33 would find severely hostile or abusive.
Id. at 81-82 (emphases added).
1 The line between complaints that are easily susceptible to dismissal as a matter of law 2 and those that are not is indistinct. See, e.g., Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 3 605 (2d Cir. 2006) ("Schiano"); Holtz, 258 F.3d at 75. "On one side lie [complaints of] sexual 4 assaults; [other] physical contact[, whether amorous or hostile, for which there is no consent express 5 or implied]; uninvited sexual solicitations; intimidating words or acts; [and] obscene language or 6 gestures . . . . On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of 7 coarse or boorish workers." Gallagher, 139 F.3d at 347 (internal quotation marks omitted). And on 8 either side of the line there are, depending on the circumstances, gradations of abusiveness.
9 Casual contact that might be expected among friends--[a] hand on the 10 shoulder, a brief hug, or a peck on the cheek--would normally be unlikely to 11 create a hostile environment in the absence of aggravating circumstances such 12 as continued contact after an objection. . . . And [e]ven more intimate or more 13 crude physical acts--a hand on the thigh, a kiss on the lips, a pinch of the 14 buttocks--may be considered insufficiently abusive to be described as 'severe' 15 when they occur in isolation. . . . But when the physical contact surpasses 16 what (if it were consensual) might be expected between friendly co-workers . . . 17 it becomes increasingly difficult to write the conduct off as a pedestrian 18 annoyance.
19 Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006) ("Patton") (internal quotation marks 20 omitted) (emphases added). "[D]irect contact with an intimate body part constitutes one of the most 21 severe forms of sexual harassment." Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001). 22 Most of the above principles have been established in cases involving heterosexual 23 conflicts. In same-sex harassment cases, however, an inference that physical contact was because of 24 the employee's sex may be less evident.
25 Courts and juries have found the inference of discrimination easy to 26 draw in most male-female sexual harassment situations, because the 27 challenged conduct typically involves explicit or implicit proposals of sexual 17 1 activity; it is reasonable to assume those proposals would not have been made 2 to someone of the same sex. The same chain of inference would be available 3 to a plaintiff alleging same-sex harassment, if there were credible evidence that 4 the harasser was homosexual. But harassing conduct need not be motivated 5 by sexual desire to support an inference of discrimination on the basis of sex. 6 A trier of fact might reasonably find such discrimination, for example, if a 7 female victim is harassed in such sex-specific and derogatory terms by another 8 woman as to make it clear that the harasser is motivated by general hostility 9 to the presence of women in the workplace. A same-sex harassment plaintiff 10 may also, of course, offer direct comparative evidence about how the alleged 11 harasser treated members of both sexes in a mixed-sex workplace. Whatever 12 evidentiary route the plaintiff chooses to follow, he or she must always prove 13 that the conduct at issue was not merely tinged with offensive sexual 14 connotations, but actually constituted "discrimina[tion] . . . because of . . . 15 sex."
16 Oncale, 523 U.S. at 80-81 (emphases added) (original emphasis omitted). 17 "[T]he question of whether considerations of the plaintiff's sex 'caused the conduct at 18 issue often requires an assessment of individuals' motivations and state of mind.'" Kaytor, 609 F.3d 19 at 548 (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (emphasis ours)). Issues of 20 causation, intent, and motivation are questions of fact. See, e.g., Anderson v. Bessemer City, 470 U.S. 21 564, 573 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287-90 (1982). Although summary 22 judgment in discrimination cases is "fully appropriate, indeed mandated, when the evidence is 23 insufficient to support the non-moving party's case," Distasio, 157 F.3d at 61 (sex discrimination); see, 24 e.g., McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (race discrimination); Abdu-Brisson 25 v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (age discrimination), cert. denied, 534 U.S. 26 993 (2001), "when, as is often the case in sexual harassment claims," fact questions such as "state of 27 mind or intent are at issue," summary judgment "should be used sparingly," Distasio, 157 F.3d at 61 28 (internal quotation marks omitted); see, e.g., Kaytor, 609 F.3d at 548; Schiano, 445 F.3d at 605.
1 Likewise, "[t]he question of whether a work environment is sufficiently hostile to 2 violate Title VII is one of fact." Holtz, 258 F.3d at 75 (emphasis added); see, e.g., Schiano, 445 F.3d 3 at 605 ("the line between boorish and inappropriate behavior and actionable sexual harassment . . . is 4 admittedly indistinct, [and] its haziness counsels against summary judgment" (internal quotations 5 omitted)). The interpretation of ambiguous conduct is "an issue for the jury." Gallagher, 139 F.3d 6 at 347.
7 The EEOC Guidelines emphasize that the trier of fact must determine the 8 existence of sexual harassment in light of "the record as a whole" and "the 9 totality of circumstances, such as the nature of the sexual advances and the 10 context in which the alleged incidents occurred." 29 CFR § 1604.11(b) 11 (1985).
12 Meritor, 477 U.S. at 69 (italics added).
13 C. The Record in the Present Case 14 If Redd had merely asserted sexual advances in conclusory terms, we would agree with 15 the summary dismissal of her sexual harassment claim. However, her assertions--although perhaps 16 less detailed than they may be at trial, now that she is no longer proceeding pro se--were far from 17 conclusory. Taking the evidence in the light most favorable to Redd and accepting her version of the 18 events as true, as we are required to do and a jury would be permitted to do, we have several 19 difficulties with the district court's conclusions that no rational juror could find that Washington had 20 sexually abused Redd because of her sex and that the abuse was not sufficiently severe to create a 21 hostile work environment in violation of Title VII.
1 According to Redd's sworn statements, Washington touched Redd's breasts on three 2 occasions. Redd characterized Washington's touches in a variety of ways. In the first incident, which 3 occurred in Washington's office, Washington "brushed" against Redd's breasts, but did so in a way 4 that was sufficiently substantial to unnerve Redd and cause her to "spill water . . . all over the 5 transfer list" she was reviewing. (Redd Dep. 142.) In the second incident, Washington "came up" 6 to Redd in a hallway and "touched" and "rubbed up against" Redd's breasts. (Id.) In these incidents, 7 Washington "felt [Redd's] breasts." (Id. at 141 (emphasis added).) In the third incident, Washington 8 came over to Redd who was sitting at a computer in a secretarial area and "reached over and touched" 9 Redd's breasts. (Id. at 142-43.) There is nothing conclusory about these accusations.
10 Redd inferred that Washington's touching, feeling, and rubbing up against Redd's 11 breasts were "homosexual advances" (Complaint ¶ 8). We see no principled reason why a jury, 12 considering the evidence of repeated touching of such gender-specific body parts, would not be 13 permitted to draw the same inference. Although Washington denied that she had "sexually 14 harass[ed]" Redd or "touch[ed] PO Redd in any inappropriate manner" (Washington Aff. ¶ 6), the jury 15 would not be required to believe those denials; hence the district court, in determining whether the 16 Division was entitled to judgment as a matter of law, was required to disregard them.
17 The court's statement that there was "no basis for concluding that Washington's 18 conduct was physically threatening," 2010 WL 1177453, at *3, is contradicted by the above evidence 19 that Washington in fact repeatedly made physical contact with--and repeatedly felt--intimate parts of 20 Redd's body. Plainly this was unwelcome to Redd; she "backed away from [Washington] to refuse 21 her advances" (Verified Administrative Complaint ¶ 7); she tried to avoid Washington, but
1 Washington, although not directly supervising Redd, repeatedly called Redd into her office; and 2 because of Washington's prior touchings, Redd feared going into Washington's office. (See Redd 3 Dep. 141, 142, 145.) The court itself determined that a jury could reasonably find that Redd 4 subjectively perceived Washington's conduct as abusive; in the circumstances of this case, a jury 5 could as easily find that the atmosphere Washington created was physically threatening. Moreover, 6 given Redd's testimony that Washington came up to her and rubbed up against her breasts "in front 7 of [another] parole officer" (id. at 142), we believe that a jury could permissibly find that 8 Washington's conduct was humiliating.
9 Further, the district court, in finding that "Washington's alleged acts consisted of 10 relatively minor" and "incidental physical contact," 2010 WL 1177453, at *3 (emphases added), did 11 not view the record in the light most favorable to Redd or credit inferences that were permissible from 12 her descriptions of the events she physically experienced. The repeated touching of intimate parts of 13 an unconsenting employee's body is by its nature severely intrusive and cannot properly be 14 characterized as abuse that is "minor." This is not a manner in which women "routinely interact," 15 Oncale, 523 U.S. at 81; and it is not conduct that is normal for the workplace. "When entering a 16 workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but 17 giving up control over who can touch their bod[ies] is usually not one of them." Patton, 455 F.3d 18 at 816.
19 Nor, with the record viewed as a whole and in the light most favorable to Redd, could 20 Washington's physical contacts properly be characterized as "incidental." The first occurred after 21 Redd had been called into Washington's office; the second occurred when Redd and another PO were 1 talking in a hallway, and Washington came up to Redd and rubbed up against Redd's breasts; the third 2 occurred when Washington crossed a room to where Redd was working at a computer, and reached 3 over and touched Redd's breasts. Thus, as to each instance, a jury could find that Washington, without 4 any apparent legitimate need had contrived to be in close proximity to Redd, and had touched her 5 breasts.
6 The district court's rejection of Redd's claim on the ground that "the alleged incidents 7 were episodic, rather than continuous or concerted," 2010 WL 1177453, at *3, likewise did not take 8 the record in the light most favorable to Redd, as it did not take into account "the nature of the sexual 9 advances," 29 C.F.R. § 1604.11(b), or "the record as a whole," id. Although the court had mentioned 10 that severity was a consideration, it thereafter referred only to the least severe form of Washington's 11 touches that Redd had mentioned--"brushe[s]"--rather than to Redd's testimony that Washington 12 "rubbed up against" and "felt" her breasts. Direct contact with an intimate body part constitutes one 13 of the most severe forms of sexual harassment, and Redd testified that Washington engaged in that 14 conduct three times. The evidence that Washington repeatedly touched Redd's breasts; that 15 Washington never apologized or indicated in any other way that her touchings were accidental; that 16 Washington repeatedly requested that Redd come into her office even though she was not Redd's 17 immediate supervisor; and that Redd, apprehensive of further repetition, consequently felt the need 18 to avoid Washington, would allow a rational juror to find that Washington's conduct was not only 19 severe, but pervasive.
20 In concluding that "no reasonable jury could find Washington's conduct to be so severe 21 or pervasive as to be objectively hostile or abusive," 2010 WL 1177453, at *3, the district court cited 22 1 two cases that it read as involving "similar allegations": Quinn v. Green Tree Credit Corp., 159 F.3d 2 759, and Lewis v. North General Hospital, 502 F.Supp.2d 390. We find both cases distinguishable.
3 In Quinn, the only allegation of touching before us was that the plaintiff's supervisor on one occasion 4 had touched her breast with some papers he was holding. See 159 F.3d at 768. There was no 5 suggestion that he had engaged in the substantially more intrusive behavior alleged here, of repeatedly 6 touching her with his hands or any other part of his body, or that he had "felt" her breasts.
7 In Lewis, which, as a district-court decision, is not binding on this Court, the plaintiff 8 was openly a male homosexual, the supervisor was openly a female homosexual, and the plaintiff's 9 claim of harassment on the basis of sex was a belated addition to other Title VII and state-law 10 complaints of discrimination on bases other than sex. See 502 F.Supp.2d at 404, 395. In addition, 11 the plaintiff in that case, who complained that the supervisor on four occasions had touched him with 12 her breasts, characterized the first instance as "accidental," id. at 403, and acknowledged that in 13 every instance she had apologized, see id. at 404 n.9. Here, in contrast, Redd does not concede that 14 any of Washington's touchings were accidental, and there is no evidence that Washington apologized.
15 The district court here stated that in the present case too, "[e]ven drawing all inferences 16 in Redd's favor, the contact may have been purely accidental," 2010 WL 1177453, at *3 (emphasis 17 added). This rationale suffers two major flaws. First, it is a premise-denying fallacy. Given the 18 evidence that Washington repeatedly went out of her way to make those contacts with Redd, always 19 made contact with the same part of Redd's body, never apologized, and "rubbed up against" and "felt" 20 Redd's breasts, Washington's touchings could not be considered "accidental" if all the inferences are 21 drawn in Redd's favor. Second, the rationale that Washington's touchings "may" have been 23 1 unintentional implied that Redd could not defeat summary judgment without showing that 2 Washington's touchings were necessarily intentional. At the summary judgment stage, however, Redd 3 had the burden only of showing that there was a genuine issue of material fact to be tried. Although 4 the Division argues that Washington's touchings of Redd were "ambigu[ous]" (Parole Division brief 5 on appeal at 15), the interpretation of whether they were accidental or not--and whether or not they 6 were because of Redd's sex-were issues of fact for the jury to decide, not issues for the court to 7 resolve as a matter of law.
8 Finally, we cannot accept the district court's view that "[a] reasonable jury could not 9 find that, more likely than not, Washington brushed up against Redd because she was female," id. at 10 *4 (emphases added), or that the "jury would have to speculate as to Washington's underlying 11 motivation--if any--for brushing up against Redd" id. (emphasis added). First, characterizing 12 Washington's actions in the least abusive way described by Redd, rather than acknowledging Redd's 13 testimony that Washington "rubbed up against" and "felt" Redd's breasts, did not assess the record in 14 the light most favorable to Redd. Second, although the district court found it material that "Redd d[id] 15 not attribute any suggestive or sexual remarks to Washington," id., a factfinder, instructed to use 16 "[c]ommon sense," Oncale, 523 U.S. at 82, would be entitled to draw inferences as to intent and 17 motivation from conduct as well as from words. If the claim were that a supervisor--of either gender-- 18 stated to a female employee "I want to feel your breasts," or stated to a male employee "I want to feel 19 your penis," a jury could easily infer that that stated desire was because of the employee's sex. A 20 district court could not properly rule as a matter of law that that gender-specific harassment was not 21 because of the employee's sex. It is no more permissible to rule as a matter of law that the supervisor's 24 1 harassment was not because of the employee's sex when the supervisor repeatedly--albeit silently-- 2 touched, rubbed up against, and felt those gender-specific, intimate parts of the employee's body.
3 Given the permissible inference that Washington's touchings were not accidental, we cannot affirm 4 a dismissal that, in effect, holds that such repeated sexually abusive, gender-specific actions are less 5 probative than words.
6 So far as we have seen in the record, Washington has never denied outright Redd's 7 allegations (as contrasted with some of Redd's elaborations on those allegations). Washington, at her 8 deposition, said that she did not understand what was "mean[t] by physical contact" (Washington Dep. 9 6); and she asked for an explanation as to what was meant when Redd asked, "Did you touch me in 10 any appropriate manner" (id.). Redd clarified by asking did you "[p]ut your hands on me?" (Id.) 11 Although questions are not evidence, in this instance in which Redd, who was then proceeding pro 12 se, was attempting to elicit evidence in a face-to-face confrontation with the person she was accusing, 13 her question seems indicative of a detail that Redd can be expected to testify to at trial when 14 questioned professionally by her counsel. Washington denied putting her "hands" on Redd (id.) and 15 can be expected to testify at trial, consistently with her affirmation in support of summary judgment, 16 that she did not touch Redd "in any inappropriate manner" and did not "make any other inappropriate 17 physical contact with" Redd (Washington Aff. ¶ 6). 18 The decision as to which witness's version of the events should be credited is one to 19 be made by a factfinder at trial, not by the court as a matter of law. The fact that Redd did not provide 20 detail in her sworn submissions (and apparently was not questioned in her deposition) as to such 21 matters as the duration of Washington's touchings, or what parts of Washington's body touched Redd's 25 1 breasts, did not warrant the summary dismissal of her claim. Just as "a plaintiff, to prevail, need not 2 recount each and every instance of abuse to show pervasiveness," Pucino, 618 F.3d at 119-20, a 3 plaintiff need not, in order to show severity, motivation, or intent, give every detail of the specific 4 intimate touchings she has described.
5 In sum, questions as to Washington's conduct and motivation, and as to and whether 6 a reasonable person in Redd's position would have found Washington's conduct severely abusive, are 7 questions of fact. A jury, of course, would not be required to credit Redd's testimony describing 8 Washington's conduct and would not be required to draw inferences in Redd's favor. But that 9 testimony and those inferences could not properly be rejected by the court as a matter of law.
10 D. Liability of the Division for Washington's Conduct
11 An employer is presumptively liable for sexual harassment in violation of Title VII if 12 the plaintiff was harassed not by a mere co-worker but by someone with supervisory (or successively 13 higher) authority over the plaintiff, although in certain circumstances an affirmative defense may be 14 available. See, e.g., Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. If the "harassment 15 culminate[d] in a tangible employment action, such as discharge, demotion, or undesirable 16 reassignment," the employer is held strictly liable, and "[n]o affirmative defense is available." Ellerth, 17 524 U.S. at 765; see, e.g., Faragher, 524 U.S. at 808.
18 In the absence of a tangible employment action, the employer may avoid liability by 19 establishing, as an affirmative defense on which it has the burden of proof, "two necessary elements: 20 (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing 26 1 behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive 2 or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. 3 at 765; see Faragher, 524 U.S. at 807-08; Ferraro v. Kellwood Co., 440 F.3d 96, 101-02 (2d Cir. 4 2006); Petrosino, 385 F.3d at 225.
5 The Division in the present action asserted such an affirmative defense in its answer 6 to the Complaint, but it is not clear from the present record whether the defense is available. Redd 7 has complained that Washington's harassment on September 15 culminated in a suspension that began 8 on September 16, the length of which an arbitrator found was unwarranted, and the results of which 9 included Redd's loss of priority on a transfer list and an undesirable reassignment to an office where 10 her parolee supervision responsibilities exposed her to greater dangers. (See, e.g., Redd brief on 11 appeal at 6, 7, 33-36.) Neither the availability nor the viability of the Division's defense was fully 12 briefed in the district court, and that court did not address the defense because of its ruling that Redd's 13 hostile work environment claim failed as a matter of law, see 2010 WL 1177453, at *4 n.1.
14 To the extent that the affirmative defense is available, we note that the record suggests 15 that there are factual issues to be tried. In asserting the defense, the Division did not indicate that it 16 had taken any preventive or corrective action; rather, it contended that no such action was required 17 because Redd did not sufficiently complain about Washington's conduct. It is undisputed that, with 18 respect to Washington's alleged sexual harassment, Redd did not file complaints in writing; she 19 testified in her deposition that to file such complaints would have subjected her to criticism from her 20 co-workers (see Redd Dep. at 143-45). However, Redd testified that she complained orally to Burgos.
21 (See id. at 144-45.) Burgos, the Division's Director of Human Resources, acknowledged that his 27 1 office investigates harassment complaints and that it disciplines supervisors found to be engaging in 2 "activity that could be described as sexually harassing" (Burgos Dep. 22-23). And despite testifying 3 that he did not recall whether Redd had complained about Washington "directly" to his office (id. 4 at 51), his testimony indicated that it was sufficient for Redd to make a complaint directly to Burgos 5 himself: He testified as a general matter that "[i]f you made a complaint to me or my office, . . . it 6 would be investigated." (Id. at 6 (emphasis added).)
7 Burgos did not dispute Redd's assertion that she had complained to him that 8 Washington was sexually harassing her. Rather, in his affirmation he stated that he "did not recall" 9 receiving any "written sexual harassment complaint by PO Redd against Area Supervisor 10 Washington" (Burgos Aff. ¶ 9 (emphasis added)). In his deposition, he stated "[his] recollection . . . 11 that [Redd] complained that Ms. Washington bumped" Redd and that Redd "viewed that as sexual 12 harassment." (Burgos Dep. 50-51.) Redd, conducting Burgos's deposition pro se, immediately 13 disputed Burgos's characterization of Redd's description to him of Washington's actions, stating, "I 14 didn't put in the complaint that she bumped me. I put in the complaint that she felt my breast on three 15 different occasions" (id. at 51 (emphases added)). While Redd's colloquy is not evidence, her 16 deposition testimony that she had complained about Washington to Burgos is evidence, and we think 17 it well within the leeway that is normally to be afforded a pro se litigant for the court to infer that such 18 a face-to-face assertion of detail as to precisely what she had reported would be included in her 19 testimony at trial. In any event, as a jury would not be required to believe Burgos's testimony that 20 Redd, in complaining to him, had described Washington's physical contact as simply a "bump[ing]," 21 a court considering whether the Division has established its defense as a matter of law would be 22 required to disregard that characterization.
1 In sum, if the affirmative defense is available, there appears to be a factual dispute to 2 be resolved as to the sufficiency of Redd's complaints about Washington's conduct.
We have considered all of the Division's arguments in support of the grant of summary 5 judgment and have found them to be without merit. The judgment of the district court is vacated to 6 the extent that it dismissed Redd's hostile work environment claim of sexual harassment, and the 7 matter is remanded for further proceedings on that claim.
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