Case Information
*4
CALLAHAN, Circuit Judge:
Plaintiffs-Appellants the Arizona Civil Rights Division (“the Division”) and the Equal Employment Opportunity Commission (“EEOC”) (collectively “Plaintiffs”) appeal the district court’s summary judgment rulings against them and in favor of Defendant-Appellee Geo Group, Incorporated (“Geo”). A female corrections officer, Alice Hancock, filed a charge of discrimination with the Division against her employer, Geo, alleging that she had been subjected to discrimination, harassment, and retaliation in violation of state and federal employment laws. After an investigation, the Division and EEOC found reasonable cause to believe that Geo had violated the employment rights of the corrections officer and a class of female employees. Conciliation attempts failed, and the EEOC and the Division brought suit on behalf of a class of female employees alleging that Geo violated Title VII of the Civil Rights Act of 1964 and the Arizona Civil Rights Act (“ACRA”).
The district court granted summary judgment in favor of Geo dismissing several employees whom neither the EEOC nor the Division had identified until after filing the complaint. The district court also dismissed several employees who had not alleged acts within 300 days of the Division’s Reasonable Cause Determination. The district court dismissed the hostile work environment claim of another aggrieved employee, Sofia Hines, on the ground that the conduct she alleged was not sufficiently severe or pervasive.
This appeal raises four issues: (1) the scope of the requirement that the EEOC and the Division conciliate any A RIZONA EX REL . H ORNE V . T HE G EO G ROUP claims with an employer prior to bringing suit, (2) when Title VII’s 300-day limitations period starts to run in an EEOC class action; (3) whether, in an EEOC class action, an aggrieved employee is required to file a new charge of discrimination for acts that occur after the Reasonable Cause Determination; and (4) whether aggrieved employee Sophia Hines has presented material issues of fact as to her hostile work environment claim.
We vacate the district court’s order. We hold that the
EEOC and the Division sufficiently conciliated its class
claims against Geo in this lawsuit in light of
Mach Mining,
LLC v. EEOC
,
I
Alice Hancock was employed by Geo as a correctional officer at the Arizona State Prison, Florence West Facility. The district court did not have the benefit of Mach Mining , which was not decided until after this case was on appeal.
Geo is a corporation that employs over 13,000 employees and provides corrections and detention management, health and mental health services to federal, state, and local government agencies. Geo contracts with the Arizona Department of Corrections to maintain and operate two facilities: (1) the low-to-medium security return-to-custody and driving-under- the-influence units at Florence West and (2) the medium- security sex-offender unit at Central Arizona Correctional *6 Facility (“CACF”).
On June 5, 2009, Hancock filed a charge of discrimination with the Arizona Civil Rights Division and the EEOC. [2] Hancock alleged that while working with Sergeant Robert Kroen he grabbed her crotch and pinched her vagina. Hancock filed an incident report with Geo, but contends that Geo did not remedy the harassment. After Hancock complained about Kroen’s conduct, three of her coworkers complained that Hancock had made an offensive comment. Geo placed Hancock on unpaid administrative leave pending an internal investigation, and later suspended her for 15 days without pay. Three months after Hancock filed her charge of discrimination, Geo terminated Hancock’s employment.
The Division investigated the allegations in Hancock’s charge. [3] It asked Geo for a position statement and served discovery on Geo asking for “similar complaints made by [2] A “charge” is a written and verified statement that a person has engaged or is engaging in an unlawful employment practice. 29 C.F.R. §§ 1601.7, 1601.9, 1601.11; Ariz. Rev. Stat. § 41-1481(A). The Arizona Civil Rights Division has entered into a worksharing agreement with the EEOC, which states how the investigations of charges are divided. See 42 U.S.C. § 2000e-8(b); 29 C.F.R. § 1601.13. others involving the same issues or individuals as involved in [Hancock’s] complaint to the [Division].” Geo provided documentation regarding previous investigations of complaints of sexual harassment at its Florence West facility involving individuals other than Hancock. Based on Geo’s responses, the Division identified five additional female correctional officers who either witnessed or complained of sexual harassment. The Division then subpoenaed and interviewed current and former Geo employees, who identified additional female employees as potential aggrieved employees.
On May 19, 2010, the Division concluded its investigation and issued a Reasonable Cause Determination substantiating Hancock’s allegations of discrimination and harassment based on her sex and retaliation. The Division found that Kroen had sexually harassed her, Kroen and others created a hostile work environment, and that Geo retaliated against Hancock after she complained about Kroen. Additionally, the Division identified other incidents of misconduct by Kroen and other male supervisors “that *7 created an offensive and hostile work environment based on gender that adversely affected Hancock and a class of female employees working at the facility.” The Division identified several egregious acts allegedly committed by three male correctional officers against subordinate female officers. The alleged acts included that a male officer grabbed Hancock’s breast; he made offensive comments and gestures including that he was “‘fucking” a female correctional officer, told female officers that he wanted to “bend [them] over the desk” and “wanted to ram [them] from the back” while making humping gestures, and told female correctional officers to “suck his dick” while making gestures towards his penis. Another male officer allegedly “rubbed against a subordinate female correctional officer when she bent over to replace a trash can liner,” and “forcibly lifted her onto a table, shoved himself between her legs and tried to kiss her.”
The Division also found reasonable cause to believe that Geo did not take reasonable steps to prevent and correct harassment in the workplace and subjected female officers to different terms and conditions of employment. The Division’s investigation suggested, among other things, that even after substantiating sexual harassment claims against two male correctional officers, Geo gave one officer a positive performance review and made the other officer an instructor for mandatory training that his victims would be required to attend. Additionally the Division found that while Geo had a practice of transferring male supervisors accused of harassment to other units (which also employed female correctional officers), female correctional officers were assigned to less desirable positions after they complained.
Based on its investigation, the Division determined that “Hancock and the other similarly-situated aggrieved females were subjected to different terms and conditions of employment, including harassment and retaliation.” The Division concluded that there was reasonable cause to believe Geo had violated Arizona Revised Statutes prohibiting discrimination, harassment, and retaliation, “against Hancock and a class of female employees.” The EEOC adopted the Division’s Reasonable Cause Determination in a separate letter to Geo. A RIZONA EX REL . H ORNE V . T HE G EO G ROUP
A. The EEOC and the Division’s Conciliation Efforts
with Geo
The EEOC and the Division invited Geo to conciliate the matter in their Reasonable Cause Determinations. Additionally, the EEOC and the Division conveyed a conciliation letter to Geo that outlined a proposal to settle Alice Hancock’s charge of discrimination and the claims of other aggrieved employees of Geo. The letter proposed damages for Ms. Hancock, a class fund for unidentified class members, and injunctive relief. Plaintiffs and Geo also attended a joint conciliation session. During the conciliation session, Geo made a counteroffer as to Hancock but did not make a counteroffer to the class demand. Geo asked Plaintiffs to identify the unidentified class members but they declined to do so. Geo also proposed a separate settlement with the EEOC and the Division, which they rejected. Ultimately the conciliation was unsuccessful.
B. The EEOC and the Division’s Civil Complaints
The EEOC and the Division filed civil complaints against Geo alleging that “Geo Group has engaged in unlawful employment practices at the Florence West and CACF Facilities” in violation of Title VII and the ACRA. The complaints alleged that Hancock and similarly situated employees were subject to “different terms and conditions of employment, including, but not limited to, sex-based hostile work environment and sexual harassment,” and “retaliation.” [4] The Division filed its complaint in the Maricopa County Superior Court, and Geo removed the Arizona state action to federal court. The EEOC filed its complaint in the District of Arizona. The cases were consolidated in district court.
*9 While litigation was pending, Plaintiffs sent letters entitled “Notice of Class Litigation” to 144 female correctional officers and 259 male officers encouraging the officers to contact them if they ever witnessed any sexual harassment or retaliation. As a result of these letters, additional female Geo employees came forward to participate in the lawsuit. C. The District Court’s Summary Judgment Orders
The district court granted in part Geo’s successive motions for partial summary judgment. The district court first dismissed the claims of 15 women who had not been specifically identified during the course of the investigation or in the Reasonable Cause Determination. The district court concluded that the EEOC and the Division were required to identify these women and attempt to conciliate their claims prior to bringing suit on their behalf. The court reasoned that because “Plaintiffs did not identify the fifteen women at issue until after sending their Notices of Class Litigation,” Plaintiffs had “wholly failed to satisfy [their] statutory pre- suit obligations” to conciliate their claims. The district court stayed the claims of the five aggrieved employees who were discovered during the investigation into Hancock’s allegations while the Plaintiffs and Geo attempted conciliation.
After conciliation failed for the remaining aggrieved employees, the district court granted Geo’s partial summary judgment motion finding that Hancock and the other five remaining aggrieved employees’ claims were untimely in part. The court found that Title VII and the Arizona Civil Rights Act required that a party file a charge of discrimination within 300 days of the alleged discriminatory act. The district court found that Hancock had timely filed her charge with the EEOC and the Division on June 5, 2009, but that any discrete acts prior to August 9, 2008—300 days before Hancock’s June 5, 2009, charge—were untimely. The court found, however, that any alleged misconduct that formed Hancock’s hostile work environment claim would not be barred.
With respect to other aggrieved employees, the court noted that they were not necessarily required to file their own charge if their claims arose out of similar discriminatory treatment as Hancock. However, the district court found the operative date for other employees was not the date of *10 Hancock’s charge (June 5, 2009), but rather May 19, 2010, the date of the Division’s Reasonable Cause Determination that placed Geo on notice that the Division was expanding its investigation to include a class of women. Thus, the district court found that any discrete acts alleged by the other aggrieved employees prior to July 23, 2009, 300 days preceding the Division’s Reasonable Cause Determination, were untimely.
The district court also barred any discrete acts that arose after the date of the Reasonable Cause Determination, May 19, 2010, as those acts “were not investigated and, therefore, cannot be considered.” The district court noted that the EEOC and the Division had failed to respond to Geo’s argument that post-determination acts should be excluded. The court also found that aggrieved employees with claims arising after the Reasonable Cause Determination were required to file their own charges. Accordingly, the district court found that two aggrieved employees, Roach and Wilcox, had failed to allege any timely acts and granted summary judgment in Geo’s favor.
Finally, the district court found that, regardless of whether Hines’s claims were timely, the conduct that Hines alleged did not rise to the level of actionable hostile work environment.
Hancock settled with Geo prior to trial for an undisclosed amount, and the district court dismissed her claims. The final two remaining employees entered into a consent decree prior to trial. The consent decree preserved the EEOC and the Division’s right to appeal the district court’s summary judgment orders in an effort to pursue claims and remedies on behalf for the dismissed employees. The EEOC and the Division timely appealed.
II
We review summary judgment de novo.
Szajer v. City of
L.A.
,
III
A. The EEOC and the Division’s pre-suit conciliation
efforts are subject to limited judicial review
“Title VII of the Civil Rights Act of 1964, 78 Stat. 241,
42 U.S.C. § 2000e
et seq.
, sets out a detailed, multi-step
procedure through which the [EEOC] enforces the statute’s
prohibition on employment discrimination.”
Mach Mining,
LLC v. EEOC
,
“If, on the other hand, the Commission finds reasonable
cause, it must first ‘endeavor to eliminate [the] alleged
unlawful employment practice by informal methods of
conference, conciliation, and persuasion.’”
Id.
(quoting 42
U.S.C. § 2000e-5(b)). The statute leaves to the EEOC the
ultimate decision whether to accept a settlement or instead to
bring a lawsuit on its own behalf.
Id.
“So long as ‘the
Commission has been unable to secure from the respondent
a conciliation agreement acceptable to the Commission’
itself, the EEOC may sue the employer.”
Id.
at 1649–50
(quoting 42 U.S.C. § 2000e-5(f)(1)). Thus, before suing an
employer for discrimination, the EEOC must try to remedy
unlawful workplace practices through informal methods of
conciliation. The ACRA is “modeled after and is generally
identical” to Title VII of the Civil Rights Act.
Ariz. Civil
Rights Div. v. Hughes Air Corp.
,
A RIZONA EX REL . H ORNE V . T HE G EO G ROUP
After principal briefing in this case was completed, the
U.S. Supreme Court granted certiorari in
Mach Mining
to
determine whether and to what extent may a court enforce the
EEOC’s mandatory duty to conciliate discrimination claims
before filing suit.
[T]he EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” [42 U.S.C. § 2000e-5(b).] Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.
Id. at 1655–56.
Here, it is undisputed that the EEOC and the Division served Geo with a Reasonable Cause Determination detailing Hancock’s allegations against Kroen and her complaint to Geo. Moreover, the Reasonable Cause Determination referred to a “class” of female employees who had also been subject to discrimination, harassment, and retaliation at the low-to-medium security return-to-custody and driving-under- the-influence unit at Florence West and the medium-security sex-offender unit, which was located at the CACF. Both agencies invited Geo to conciliate and all parties participated in a formal mediation session. The EEOC and the Division proposed a settlement including damages, injunctive relief, and a class fund for unnamed class members. Under the Supreme Court’s guidance in Mach Mining , the agencies’ actions clearly satisfied Title VII and the ACRA’s conciliatory requirements.
Even if the EEOC and the Division had failed to conciliate prior to bringing suit, the appropriate remedy would be a stay of proceedings to permit an attempt at conciliation, not the dismissal of the aggrieved employees’ claims.
If, however, the employer provides credible
evidence of its own, in the form of an affidavit
or otherwise, indicating that the EEOC did not
provide the requisite information about the
charge or attempt to engage in a discussion
about conciliating the claim, a court must
conduct the factfinding necessary to decide
that limited dispute. Cf.
id.
, at –––– – ––––,
Id. at 1656 (emphasis added).
Although the EEOC, like any party to litigation, may not negotiate in good faith, these concerns were addressed by a unanimous Supreme Court in Mach Mining . The Court explained:
Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter- offers, however far afield. So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. For a court to assess any of those choices—as Mach Mining urges and many courts have done, is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.
Id. at 1654 (citation omitted).
Thus, the EEOC and the Division sufficiently conciliated its class claims against the employer, Geo, in this lawsuit under Title VII and the ACRA. The district court’s grant of summary judgment for failure to conciliate is vacated. B. Neither the EEOC nor the Division is required to
conciliate on an individual basis prior to bringing a lawsuit on behalf of a class of aggrieved individuals The district court was also concerned that the EEOC and the Division had used the discovery process to identify additional aggrieved employees, and accordingly deduced that they were required to identify and conciliate on behalf of all class members during the investigation period. But we reject the district court’s premise that the EEOC and the Division must identify and conciliate on behalf of each individual aggrieved employee during the investigation process prior to filing a lawsuit seeking recovery on behalf of a class. We hold that the EEOC and the Division satisfy their pre-suit conciliation requirements to bring a class action if they attempt to conciliate on behalf of an identified class of individuals prior to bringing suit.
*15 Our determination is based in part on Mach Mining , which was a lawsuit brought by the EEOC on behalf of a class of women. The Court held that in order to satisfy its pre-suit conciliation requirements, the EEOC must identify “what the employer has done and which employees (or what class of employees) have suffered as a result.” 135 S. Ct. 1656. The Supreme Court did not articulate any further [5] The district court relied on EEOC v. CRST Van Expedited, Inc. , 679 F.3d 657 (8th Cir. 2012), but that circuit court decision was decided prior to Mach Mining.
requirement of individual conciliation prior to bringing a lawsuit on behalf of a class of individuals. Accordingly, we will not impose any additional pre-suit conciliation requirement.
If the EEOC and the Division were required to pursue individual conciliation on behalf of every aggrieved employee, they would be effectively barred from seeking relief on behalf of any unnamed class members they had yet to identify when they filed their suit. Civil litigants in private class actions may discover additional aggrieved employees who may wish to participate in the class. In light of the broad enforcement authority of the EEOC and the Division, it would be illogical to limit their ability to seek classwide relief to something narrower than the abilities of private litigants.
Our determination that the EEOC and the Division satisfy
their pre-suit conciliation requirements if they attempt to
conciliate on behalf of a class of individuals prior to bringing
suit is also consistent with the Supreme Court’s broad
interpretation of the EEOC’s enforcement powers. The Court
has held that “[e]very aspect of Title VII’s conciliation
We are not called upon to consider whether the EEOC could maintain
a nationwide class action against an employer based on an investigation
of less than a dozen employees or whether such an investigation would be
reasonable.
See CRST Van Expedited
,
provision smacks of flexibility.”
Id.
at 1654. Indeed, the
EEOC “may seek specific relief for a group of aggrieved
individuals without first obtaining class certification pursuant
to Federal Rule of Civil Procedure 23.”
Gen. Tel. Co. of the
Nw. v. EEOC
,
Our view is also consistent with the rulings of our sister
circuits.
See, e.g.
,
Serrano v. Cintas Corp.
,
We further note that the conciliation requirements do not change depending on whether the EEOC brings a claim under §2000e-5 (a § 706 claim) or §2000e-6 (a § 707 pattern-or- practice claim). Title VII indicates that the pre-suit conciliation procedures for both sections are the same. See 42 U.S.C. § 2000e-6(e) (“All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 [§ 706] of this title.”). In Mach Mining , the EEOC brought suit under both § 2000e-5(f)(1) [§ 706] and § 2000e-6 [§ 707] on behalf of a class of women. The Court held that the EEOC would fulfill its duty to attempt to conciliate by engaging the employer to remedy the alleged discriminatory practice including identifying “both what the employer has done and which employees (or what class of employees) have suffered as a result.” 135 S. Ct. at 1656. The Court did not differentiate between class suits brought under § 706 and § 707. In any event, such differences would not apply here where Mach Mining and this case were both brought under § 706.
Thus, we vacate the district court’s dismissal of EEOC and the Division’s claims on behalf of aggrieved employees.
IV
Title VII requires that “[a] charge shall be filed by or on
behalf of the person aggrieved within three hundred [(300)]
days after the alleged unlawful employment practice occurred
. . . .” 42 U.S.C. § 2000e-5(e)(1). For hostile work
environment claims of a continuing nature, the aggrieved
employee must allege “at least one discrete act had occurred
within the 300-day time frame.”
Porter v. Cal. Dep’t of
Corr.
,
In addition, an aggrieved employee who fails to file a
timely charge with the EEOC may still be able to pursue a
claim under the piggyback or single-filing rule, in which the
employee “piggyback[s]” onto the timely charge filed by
another plaintiff for purposes of exhausting administrative
remedies.
See Harris v. Cty. of Orange
,
The district court found that Hancock had timely filed a charge with the EEOC and the Division within 300 days of the alleged discriminatory practice. The court further found that Plaintiffs could assert claims on behalf of a class of individuals who had suffered an unlawful employment practice, but held that the filing period for those aggrieved employees should run from the date of the Reasonable Cause Determination and not Hancock’s charge.
As an initial matter, we doubt that the EEOC is subject to the same
strict timing requirements with respect to exhaustion of remedies in Title
VII as a private party before bringing a class suit. “Title VII claimants
generally establish federal court jurisdiction by first exhausting their
EEOC administrative remedies.”
Sosa v. Hiraoka
,
Furthermore, we have previously held in a private class
action that the proper “starting date of the class action [is]
300 days prior to the date [the charging party] filed his EEOC
charge.”
Domingo v. New England Fish Co.
,
Thus, the district court erred in limiting the time for
which aggrieved employees may allege unlawful acts to 300
conducting litigation on behalf of private parties.”);
EEOC v. Sidley Austin
LLP
,
Moreover, we have held that a single charge of
discrimination may be sufficient to put an employer on notice
that additional people may be subject to the same unlawful
employment practices.
Paige v. California
,
It follows from
Domingo
,
Paige
, and
Lucky Stores
, that an
employer may be on notice of classwide allegations of
discrimination from a single charge. Here, Hancock’s charge
alleged that she had been subject to discrimination,
*21
harassment, and retaliation. Although Hancock’s alleged
incident with Kroen may have been isolated, she further
elaborated that she complained about the harassment and Geo
did nothing to remedy it. Furthermore, she alleged that after
she complained, Geo initiated an investigation against her
based on false pretenses, and placed her on administrative
leave. Thus, the charge was not limited to an “isolated act”
of discrimination by one individual against another.
See
Paige
,
then brought an enforcement action against Geo on the same grounds articulated in Hancock’s charge: discrimination, harassment, and retaliation against female correctional officers.
Accordingly, the aggrieved employees who alleged acts of discrimination, harassment, or retaliation—the kind of discriminatory conduct alleged in Hancock’s charge—within the 300 days preceding Hancock’s initial charge have made timely claims.
V
We also hold that in an EEOC class action, an aggrieved employee is not required to file a new charge of discrimination if her claim is already encompassed within the Reasonable Cause Determination or if the claim is “like or reasonably related” to the initial charge.
We first note that the EEOC failed to argue this point to the district court below. However, we have discretion to review an issue of law, that the district court addressed, and that would result in prejudice if not addressed. See The district court misconstrued EEOC v. General Electric Co. , 532 F.2d 359, 372 (4th Cir. 1976), and the cases relying on it. In General Electric , the Fourth Circuit held that a district court could fashion equitable relief, such as back pay from the date of the reasonable cause determination instead of the date that a charge had been filed. Id. However, General Electric is inapposite. At this stage, we need not consider the level of redress appropriate for alleged discriminatory misconduct that occurred in the period prior to Hancock’s charge. We hold only that in an EEOC class action, the claims of individuals may not be dismissed if they have alleged an act of misconduct within the 300 days prior to the filing of the initial employee’s charge.
Ahanchian v. Xenon Pictures, Inc.
,
We have held that an EEOC civil suit may allege any
discrimination “stated in the charge itself or discovered in the
course of a reasonable investigation of that charge, provided
such additional discrimination was included in the EEOC
‘reasonable cause’ determination and was followed by
compliance with the conciliation procedures of the Act.”
EEOC v. Hearst Corp.
,
The district court refused to consider any aggrieved employees’ discrimination or retaliation that occurred after the Reasonable Cause Determination without analyzing whether the allegations were included in the Reasonable
A RIZONA EX REL . H ORNE V . T HE G EO G ROUP 29 Cause Determination, whether the allegations were “like or reasonably related to” Hancock’s charge, or whether the allegations were consistent with Hancock’s original theory of the case. Pursuant to Hearst and Farmer Bros. , the district court’s outright exclusion of alleged discrimination and retaliation that occurred after the Reasonable Cause Determination was misguided.
National Railroad Passenger Corporation v. Morgan , 536 U.S. 101 (2002), does not compel a different result. Morgan held that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,” and “the charge, therefore, must be filed within the . . . 300–day time period after the discrete discriminatory act occurred.” Id. at 113. That is, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. Thus, Morgan might be construed to require that an employee who experiences a discrete act of discrimination after the initial charge must file an additional, separate charge. However, the plaintiff in Morgan was seeking to recover damages for discrete acts that had occurred more than 300 days prior to the date he filed his charge. Id. at 106. By contrast, the EEOC and the Division seek to recover damages on behalf of aggrieved employees who experience discrete acts of discrimination after the Reasonable Cause Determination. Additionally, Morgan was a private action and did not purport to address whether an aggrieved employee has to file a new charge of discrimination when a class action is filed by the EEOC. Accordingly, because this case is an agency action brought by the EEOC and the Division, we need not weigh in on the existing circuit split as to whether an employee who experiences a discrete act of discrimination after the initial charge has been filed must file a new charge We thus vacate the district court’s per se exclusion of any discrimination and retaliation that occurred after the date of the Division’s Reasonable Cause Determination, and remand *24 to determine whether the aggrieved employees’ claims are already encompassed within the Reasonable Cause Determination, or whether the claim is “like or reasonably related” to the initial charge.
VI
We vacate the district court’s summary judgment
dismissing the claim brought on behalf Sofia Hines and hold
that she has presented material issues of fact as to whether
she was subject to a hostile work environment. “An
employer is liable under Title VII for conduct giving rise to
a hostile environment where the employee proves (1) that he
was subjected to verbal or physical conduct of a harassing
nature, (2) that this conduct was unwelcome, and (3) that the
conduct was sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment.”
Kortan v. Cal. Youth Auth.
, 217 F.3d
1104, 1109–10 (9th Cir. 2000) (quoting
Pavon v. Swift Trans.
Co.
,
perceive to be so.’”
Montero v. AGCO Corp.
,
We have held that a plaintiff raises a material issue of fact
as to her hostile work environment claim when she alleges
that coworkers made unwanted sexual advances toward her;
coworkers made frequent comments about her breasts; a
coworker grabbed her breasts once; and her manager told her
*25
he wanted to take a trip to the mountains with her and
commented on how “well built” she was.
Burrell v. Star
Nursery, Inc.
,
In our case, Hines contends Hilsden made unwanted physical contact with her by “spank[ing]” her butt in front of inmates and a cadet. Although Hilsden claimed that his touching was an accident, Hines disputes this fact. Hines also alleges that Hilsden was “always talking dirty, always trying to pick up somebody” including saying that “I have my own nuts,” and would make gestures while talking dirty. Hines asserts that other officers harassed her when they bumped into her, used profanity in front of her, and told her “it’s your bra” that set off the metal detecting scanner. While each of these incidents may not in itself be sufficient to support a hostile work environment claim, their cumulative effect is sufficient to raise material issues of fact as to whether the conduct was so severe or pervasive to alter the conditions of the workplace. We express no view on whether Hines was actually sexually harassed or harassed on the basis of her sex, but hold that viewing the facts in her favor, the district court erred in dismissing Hines’s hostile work environment claim.
The cases cited by Geo,
Kortan
,
* * *
The district court also erred insofar as it required that Hines’s
harassment claim be sexual in nature. While sexual harassment must be
sexual in nature, “offensive conduct that is not facially sex-specific
nonetheless may violate Title VII if there is sufficient circumstantial
*26
evidence of qualitative and quantitative differences in the harassment
suffered by female and male employees.”
EEOC v. Nat’l Educ. Ass’n,
Alaska
,
Summary judgment is VACATED and REMANDED to the district court with instructions to reinstate the EEOC and Division’s dismissed claims brought on behalf of aggrieved employees consistent with this opinion.
Costs are awarded to Plaintiffs-Appellants.