Dоnna L. McGULLAM, Plaintiff-Appellant, v. CEDAR GRAPHICS, INC., Defendant-Appellee.
Docket No. 08-4661
United States Court of Appeals, Second Circuit.
Argued: April 13, 2010. Decided: June 15, 2010.
609 F.3d 70
CONCLUSION
Because Padmore has demonstrated that the BIA improperly found facts which it held to be “significant” and “important” to its decision denying him relief, BIA Opinion 3-4, remanding to the agency would not be futile. Remand is therefore required. See Diallo v. U.S. Dep‘t of Justice, 548 F.3d 232, 237 (2d Cir.2008). If on remand there is a need to develop the factual record further, a task outside the scope of the BIA‘s authority, see
For the foregoing reasons, the petition for review is GRANTED. The decision of the BIA is VACATED and the case is REMANDED to the BIA for proceedings consistent with this opinion.
Ana C. Shields (Mark S. Mancher, on the brief), Jackson Lewis LLP, Melville, NY, for Appellee.
Before JACOBS, Chief Judge, KEARSE and CALABRESI, Circuit Judges.
Judge CALABRESI concurs in a separate opinion.
DENNIS JACOBS, Chief Judge:
Plaintiff-appellant Donna L. McGullam appeals pro se from a judgment of the United States District Court for the East-ern District of New York (Hurley, J.), granting summary judgment on federal and state law claims of a sexually hostile work environment, disparate treatment, and retаliation in favor of McGullam‘s employer, defendant-appellee Cedar Graphics, Inc. Regarding the Title VII hostile work environment claim to which this appeal is limited, we affirm on the ground that the one non-trivial comment that may fall within the limitations period (which was made nearly one year after Cedar Graphics had transferred McGullam to another department) is insufficiently related to the earlier course of alleged harassment. The governing authority is National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
BACKGROUND
For reasons explained later in this opinion, McGullam was required to file a complaint with the appropriate agency within 300 days of the last instance in a course of harassment; and if she did, that filing would have allowed her to plead the full prior course of related harassment.
The relevant chronology is that in April 1996, McGullam was hired by Cedar Graphics, a full-service printing company, to work in the production department. On September 22, 1999, after she complained of sexual harassment and at her request, she was transferred to а position in the estimating department. She was terminated on September 12, 2000, and she filed her complaint with the relevant agencies on July 3, 2001.
McGullam alleges that when she was in the production department she “was regu-larly exposed to sexual comments, sexually
- On the first day of McGullam‘s employ-ment, April 15, 1996, she was asked to retrieve a file by climbing a ladder and the male co-worker holding the ladder told her “not to worry, that he wasn‘t going to look up [her] skirt.”
- In winter 1997, McGullam brought sev-eral packages to the shipping depart-ment late one evening and a male co-worker commented in part that “I didn‘t think you could even drag your big fat ass back here.”
- In November 1998, a male co-worker in whom McGullam had confided about a “romantic break up,” “attacked [her] in front of the entire production depart-ment” by stating: “I think you‘d be a lot happier person if you got f* * * *d more often. Yeah, I think that‘s defi-nitely your problem, you don‘t get f* * * *d enough.”
- In July 1999, a male co-worker “sitting at his desk with both arms outstretched toward [McGullam] and one hand shaped into a gun” stated “I‘d like to pump a bullet into your head, right behind your ear and blow your brains out.”
- In summer 1999, McGullam “had to endure overhearing the details of a conversation” in which a female co-worker told two male co-workers that she witnessed an act of “doggie style” sex in the bathroom of a night-club the previous weekend.
- On an unknown date, a male co-worker commented “Boing, boing, look at that—right through the denim,” a “reference to the fact that [McGullam‘s] hardened nipples were visible even through [her] denim jumper.”
- On an unknown date, an unknown person replaced a sign McGullam had taped to her computer that read “A lot goes into being the best,” with a simi-lar sign that read “A lоt goes in to being the bitch.”
McGullam‘s journal explains that she “was desperate to remove” herself from the pro-duction department and therefore request-ed transfer to an open position in the estimating department, “which was on the other side of the building—hopefully far enough away from the hostility, harass-ment and threats of violence.” As McGul-lam explained at her deposition, she “mov[ed] because [she] could not take working in this sexually aggressive and hostile environment where [she] was even-tually physically threatened by a col-league.”1
McGullam complains of only a single incident post-dating her September 22, 1999 transfer:
While working in the estimating depart-ment, I was away from the majority of the harassment, hostility and aggrava-tion. However, all comments of a sexual and derogatory nature did not cease en-tirely. On the opposite side of my cu-bic[le] wall was a salesman ... [who] carried on numerous lengthy conversa-tions with male buddies and made fre-
quent comments about women such as referring to them as “chickies[.“] He also remarked that “[i]f it wasn‘t going to be a sleep-over, she wasn‘t worth the trip[,“] regarding a woman friend that he was involved with (translating to: she‘s only worth the trip if I‘ll be getting sex). This was a thoroughly demeaning comment regarding women.
The salesman who offended McGullam by the “chickies comments” and the “sleep-over comment” was not a member of the production department or of the estimat-ing department.
On September 12, 2000, Cedar Graphics terminated McGullam‘s employment. On July 3, 2001, McGullam filed a complaint with the New York State Division of Hu-man Rights (the “NYSDHR“) and the United States Equal Employment Oppor-tunity Commission (the “EEOC“) alleging a sexually hostile work environment and retaliatory termination. On February 9, 2004, the NYSDHR issued a Determina-tion and Order After Investigation finding no probable cause and dismissing McGul-lam‘s complaint. On April 2, 2004, the EEOC adopted the findings of the NYSDHR, dismissed McGullam‘s com-plaint, and issued a right-to-sue letter, which McGullam received on April 8, 2004.
On July 6, 2004, McGullam pro se filed this lawsuit, alleging that she was discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended,
On December 21, 2007, Cedar Graphics moved for summary judgment, duly at-taching a “Notice to Pro Se Litigant Op-posing Motion for Summary Judgment.” McGullam failed to file any opposition. On August 20, 2008, the district court granted summary judgment on the Title VII hos-tile work environment claim and entered final judgment in favor of Cedar Graphics. The district court determined that (i) the hostile work environment claim was time-barred, and (ii) in the alternative, McGul-lam failed to raise a genuine issue of mate-rial fact as to the severity or pervasiveness of the complained-of conduct. McGullam v. Cedar Graphics, Inc., No. 04-CV-2891 (DRH)(AKT), 2008 WL 3887604, at *5-7 (E.D.N.Y. Aug. 20, 2008). On September 19, 2008, McGullam timely filed a notice of appeal.
DISCUSSION
“We review an award of summary judg-ment de novo, and will uphold the judg-ment if the evidence, viewed in the light most favorable to the party against whom it is entered, demonstrates that there are no genuine issues of material fact and that the judgment is warranted as a matter of law.” Global Network Commc‘ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir.2009); see also Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (applying the same standard of review to the grant of an unopposed mo-tion for summary judgment);
I
Relevant to this appeal, Title VII‘s ad-ministrative exhaustion provision requires that any complaint be filed with the EEOC within 300 days of the alleged discrimina-tory act. See
“When, as in this case, a plaintiff‘s allegations of discrimination extend be-yond the 300-day limitations period, the nature of the claim determines what con-sideration will be given to the earlier con-duct.” Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir.2004). With respect to claims based on “termination, failure to promote, denial of transfer, or refusal to hire,” Morgan, 536 U.S. at 114, section
But “[h]ostile work environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The ‘unlawful employment prac-tice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Morgan, 536 U.S. at 115 (internal citation omitted). Accord-ingly, “consideration of the entire scope of a hostile work environment claim, includ-ing behavior alleged outside the statutory time period, is permissible for the pur-poses of assessing liability, so long as an act contributing to that hostile environ-ment takes place within the statutory time period.” Id. at 105; see also id. at 118 (“Given ... that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be
(1) Acts on days 1-400 create a hostile work environment. The employee files the charge on day 401. Can the employ-ee recover for that part of the hostile work environment that occurred in the first 100 days? (2) Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts be-tween days 101-400. Can the act occur-ring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing oc-curred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts, at least not by reference to the day 401 act.
Id. at 118. Accordingly, if “any act falls within the statutory time period,” we need “to determine whether the acts about which an employee com-plains are part of the same actionable hos-tile work environment practice.” Id. at 120.
II
We start by asking whether McGullam alleged any discriminatory act within the limitations period.
McGullam filed her complaint with the NYSDHR—which sent the complaint to the EEOC for dual filing purposes—on July 3, 2001. The limitations period there-fore started on September 6, 2000 (300 days prior to July 3, 2001). Cedar Graph-ics terminated McGullam‘s employment on September 12, 2000. Accordingly, unless a discriminatory act contributing to her hos-tile work environment claim fell within the seven-day window—between the start of the limitations period on September 6, 2000 and the termination of her employ-ment on September 12, 2000—her claim is time-barred.
The only conduct complained of af-ter McGullam‘s September 22, 1999 trans-fer to the estimating department—and therefore the only alleged discriminatory acts that could fall within the seven-day window—are the chickies comments and the sleep-over comment. As alleged, the chickies comments are too trivial to con-tribute to a Title VII hostile work environ-ment claim. They were not obscene or lewd, or even sexually suggestive. Even if the chickies comments could be deemed unrefined or uncivil, Title VII simply “does not set forth a general civility code for the American workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). We therefore focus exclusively on the timing of the sleep-over comment.
McGullam nowhere dates that single in-cident. Then again, the statute of limita-tions is an affirmative defense, and the defendant has not tried to find out whether McGullam can date the incident. McGul-lam‘s submissions arguably allege that the sleep-over comment was made within the
III
Was the sleep-over comment sufficiently related to the production department con-duct to be part of the same alleged hostile work environment practice?
Under Morgan, a sexually offensive incident within the limitations period per-mits consideration of an incident preceding the limitations period only if the incidents are sufficiently related. “[I]t does not matter whether nothing occurred within the intervening [ ] days so long as each act is part of the whole.” Morgan, 536 U.S. at 118.
The district court‘s relatedness test was to consider whether the within-limitations period incident satisfied the severe or per-vasive standard of a hostile work environ-ment claim. Seе Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (determining that to establish a Title VII hostile work environ-ment claim, a plaintiff must show that “the workplace is permeated with discriminato-ry intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment” (internal quotation marks and citation omitted)). Cedar Graphics urges us to use the same test. However, this approach finds no support in Morgan, which empha-sized that the “repeated conduct” giving rise to a hostile work environment claim “occurs over a series of days or perhaps years” and that a component act need not be “actionable on its own.” Morgan, 536 U.S. at 115. We instead affirm using a different analysis.
Morgan requires courts to make an indi-vidualized assessment of whether incidents and episodes are related. Morgan‘s dis-cussion of the 401-day scenarios does not limit the relevant criteria, or set out fac-tors or prongs. See Morgan, 536 U.S. at 118 (“[I]f an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the samе hostile environment claim, then the employee can-not recover for the previous acts, at least not by reference to the day 401 act.“).
This flexibility is useful in a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment. Morgan determined that “[a]lthough many of the acts upon which [the plaintiffs] claim depends oc-curred outside the 300 day filing period, we cannot say they are not part of the same actionable hostile environment claim” based on “evidence from a number of employees that managers made racial
In this case, the sleep-over com-ment is insufficiently related to the pro-duction department conduct chiefly for two reasons. First, Cedar Graphics transferred McGullam (at her request) from the production department, where she experienced harassment, to the esti-mating department, which was a different environment in material respects—and in a different sector of the building. See Morgan, 536 U.S. at 118 (recognizing the importance of an “inter-vening action by the employer“). McGul-lam testified at her deposition that she had no problem with anyone in the esti-mating department.
Second, the sleep-over comment “had no relation to the” production department harassment. Id. In the production depart-ment McGullam encountered lewd and teasing comments that were about McGul-lаm, and that were addressed to her or were made in her presence. The sleep-over comment—offensive though it may have been—was not lewd, it was not about McGullam, and it was not addressed to her or made for her to hear it. And the salesman she overheard was a member of neither the production department nor the estimating department. Moreover, for the sleep-over comment to fall within the limi-tations period, it must have occurred near-ly one year after McGullam‘s transfer. Al-though that incident-free interval does not preclude relatedness, it renders less plau-sible the notion that the sleep-over com-ment is of a piece with the production department conduct. Given these discon-tinuities, we have no trouble finding insuf-ficient relatedness.
Accordingly, the sleep-over comment did not contribute to any hostile work environ-ment claim based on the production de-partment conduct and such a claim is therefore time-barred.5
IV
McGullam‘s claim nevertheless might survive summary judgment if there were a triable issue as to whether the sole non-trivial incident occurring within the limitations period was itself of sufficient severity to support a hostile work environ-ment claim (albeit a truncated claim prem-ised on that single incident). See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 148, 153-56 (2d Cir.2000).
To repeat, a plaintiff seeking to establish a Title VII hostile work environ-ment claim must show that “the workplace is permeated with discriminatory intimi-dation, ridicule, and insult, that is suffi-ciently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.” Harris, 510 U.S. at 21. This severe or pervasive standard “has objective and subjective elements: the misconduct shown must be ‘severe or pervasive enough to create an objectively hostile or abusive work environment,’ and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (quoting Harris, 510 U.S. at 21). Courts review the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or hu-miliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.” Harris, 510 U.S. at 23; see also Morgan, 536 U.S. at 113 (explaining that an employee is not barred “from using ... prior acts as back-ground evidence in support of a timely claim“); Fitzgerald v. Henderson, 251 F.3d 345, 365 (2d Cir.2001) (“A statute of limita-tions does not operate to bar the introduc-tion of evidence that predates the com-mencement of the limitations period but that is relevant to events during the peri-od.“)67
McGullam‘s subjective perception not-withstanding, the sleep-over comment ob-jectively falls short of the requisite levels of severity or pervasiveness. Cf. e.g., Alfano, 294 F.3d 365 (overturning a jury ver-dict in favor of the plaintiff because the evidence at trial—demonstrating conduct far more egregious than the sleep-over comment in this case—was insufficient as a matter of law to establish a sexually hostile work environment).
Accordingly, the sleep-over comment alone does not present a triable issue re-garding McGullam‘s hostile work environ-ment claim.
CONCLUSION
We have considered all of McGullam‘s contentions on this appeal and have found them to be without merit. Accordingly, the judgment of the district court is here-by AFFIRMED.
I join the majority opiniоn because I agree with the result it reaches in this case and also with its reasoning,1 as far as it goes. Specifically, I concur with the ma-jority opinion‘s two principal holdings: (1) that the only discriminatory conduct that McGullam alleges occurred within the limi-tations period (i.e., the comments she over-heard by a salesman who referred to wom-en as “chickies,” and who said of a female friend that “she wasn‘t worth the trip” “[i]f it wasn‘t going to be a sleep-over“) is insufficiently related to prior alleged dis-criminatory conduct to be considered part of the same “unlawful employment prac-tice” under
I write separately, however, to explain my views on the relevance, for the pur-poses of proving a hostile work environ-ment claim, of discriminatory incidents from outside the limitations period. First, in determining whether incidents and episodes are sufficiently related to constitute a single discriminаtory employ-ment practice under Morgan, I would consider multiple factors—including the severity of earlier incidents—as part of a totality of the circumstances analysis. The majority opinion implicitly identifies certain factors with which I agree, but my approach requires that I address addition-al issues that the majority does not con-sider. Second, I believe that even where prior incidents are not part of the same discriminatory employment practice, and so are excluded by limitations require-ments, they nevertheless may provide rel-evant background evidence to support a claim based on incidents that are within the limitations period. I discuss each is-sue in turn.
I.
A.
In Morgan, the Supreme Court ex-plained that hostile work environment claims by “[t]heir very nature involve[] repeated conduct,” where liability often is based on “the cumulative effect of individu-al acts” that are not independently action-able. 536 U.S. at 115. In contrast then to discrete acts of discrimi-nation, a hostile work environment is an “unlawful employment practice” that takes place оver time, rather than “on any par-ticular day.” Id. An “employer may be liable for all acts that are part of this single claim,” provided that at least one act that is part of the hostile work environ-ment took place within the applicable limi-tations period. Id. at 118. “A court‘s task is to determine whether the acts about which an employee com-plains are part of the same actionable hos-tile work environment practice, and if so, whether any act falls within the statutory time period.” Id. at 120.
What constitutes “the same actionable hostile work environment practice” is, however, hardly self-defining. And the Morgan Court‘s guidance on this question is limited. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1114 n. 6 (9th Cir. 2004) (”Morgan itself does not offer pre-cise guidance on how to evaluate whether an act that falls outside the statutory time period can nonetheless be considered for liability purposes.“). In providing illustra-tions to explain its holding—which the ma-
From these tea leaves, circuit courts subsequently have attempted to identify—sometimes explicitly, sometimes implicit-ly—various factors that should guide the Morgan “relatedness” inquiry.2 For its part, the majority opinion seeks to avoid setting forth general criteria in the inter-est of preserving “flexibility” for “a context as fact-specific and sensitive as employ-ment discrimination and as amorphous as hostile work environment.” Maj. Op. at 77. Even so, by specifying reasons as to why the “sleep-over comment” in this case is insufficiently related to prior conduct that occurred while McGullam worked in the production department at Cedar Graphics, the majority opinion does identi-fy certain distinctions as material. Specifi-cally, in distinguishing between the pre-and post-limitations period incidents, the majority opinion highlights: (1) that they were separated by an intervening action by the employer—McGullam‘s voluntary transfer—and so took place while McGul-lam was working for different departments in different parts of the building; (2) that they were of a different nature, in that many of the pre-limitations period inci-dents involved lewd comments that were about McGullam personally and were ad-dressed to her or at least intended for her to hear, whereas the post-limitations com-ments were not (in the view of the majori-ty opinion) lewd and were not directed toward McGullam; and (3) that they were separated by a significant amount of time.
I agree that all of these reasons given by the majority—the commonality of the environment in which the incidents took place (and whether a change in environ-ment is due to intervening action by the employer), the nature of the incidents, and the temporal discontinuity between the in-
Temporal discontinuity, for instance, clearly does not by itself preclude a find-ing of relatedness under Morgan, 536 U.S. at 118, a point that the majority properly recognizes. See Maj. Op. at 79. Similarly, McGullam‘s transfer to a different department in a different sector of the building is not alone fatal to an argument that the conduct she experi-enced was part of a single hostile work environment. If, for example, a plaintiff provided evidence tending to show that an entire company, including multiple depart-ments, was permeated with gender-based discriminatory intimidation, ridicule, and insult, and that upper-level management knew of and tolerated this condition, that plaintiff would quite likely be able to es-tablish that the harassment she endured while working in two different depart-ments for that company was part of the same unlawful employment practice. See Isaacs v. Hill‘s Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir.2007) (concluding that the plaintiff had alleged a single hos-tile work environment claim notwithstand-ing her change in job assignment which resulted in her working under new leaders and in a different part of a packaging plant—and that the change in the identity of her harassers was not significant be-cause her Title VII claim was against management for failure to respond to her repeated complaints about her work envi-ronment, not against her co-workers).3
I do not read the majority opinion as being to the contrary. And the fact that the majority opinion focuses on certain significantly salient differences, between the timely claims and the earlier incidents, to resolve this case need not be read as expressing a view either on the scope of the universe of possibly relevant factors that go into determining relatedness or on the weight any particular factor should be given. In that regard, the majority opin-ion‘s approach is much like that of the Supreme Court in Morgan, which, after noting some important similarities be-tween the pre- and post-limitations period incidents, concluded simply that it could not say that the pre-limitations incidents were “not part of the same actionable hos-tile environment claim.” 536 U.S. at 121.
It seems to me that what courts are doing without necessarily saying so—and indeed what they should be doing—is con-sidering whether, based on the totality of the circumstances, different incidents are part of the same underlying hostile work environment, both from the viewpoint of the plaintiff and from that of a reasonable person in her position. This is, after all, precisely what courts do in deciding thе connected question of whether a work en-
These factors routinely are used to de-termine whether the combined effect of various discriminatory incidents is suffi-ciently severe or pervasive to cause an employee to believe reasonably that her work conditions have been negatively al-tered—that is, whether a hostile work en-vironment existed. See Aulicino v. N.Y. City Dep‘t of Homeless Servs., 580 F.3d 73, 82 & n. 8 (2d Cir.2009). But the same factors not only determine whether a per-son reasonably believes that individual in-cidents are severe or pervasive enough to amount to discrimination; they also affect whether the incidents are properly viewed as an interrelated part of a course of dis-criminatory conduct, or are just unpleasant but unconnected events. For instance, frequent discriminatory incidents are more likely, a) to constitute a single employment practice—because a reasonable person will generally consider incidents that are close in time to be connected—and b) tо amount to discrimination that is sufficiently perva-sive to state a claim under Title VII. Un-surprisingly then, “frequency” has been identified as a significant factor both for determining whether a work environment is unlawfully hostile, see Harris, 510 U.S. at 23, and for deciding whether two periods of incidents are part of the same employment practice, see e.g., Duncan, 397 F.3d at 1309; Rowe, 381 F.3d at 781.
For the same reasons, I believe that the severity of alleged conduct affects whether that conduct should be considered “relat-ed” under Morgan. All other things being equal, incidents that occurred later in time are more likely to be part of the same hostile environment as pre-limitations peri-od incidents when those earlier incidents were more severe. In this respect, consid-er both the subjective and objective rele-vance of severity. As to the plaintiff her-self, the severity of the earlier statements seems clearly relevant to the question of linkage between incidents. After all, how one reacts subjectively to a later state-ment—i.e., whether one perceives the statement to constitute part of the sаme employment practice as prior statements and incidents—certainly depends on the nature, including the severity, of the earli-er conduct. Moreover, an objective ob-server in the plaintiff‘s position would, I think, consider the relative severity of ear-lier incidents relevant to her assessment of whether later incidents were related. Where, for example, an individual previ-
B.
Adopting this approach, which bases re-latedness on the totality of the circum-stances including the severity of alleged conduct, requires me to discuss an issue that the majority does not reach: the per-vasiveness and severity of the pre-limita-tions-period conduct that McGullam as-serted she endured while working in the production department. In my judgment, the conduct that McGullam alleged during this approximately three-year period would be sufficient, under our cases, to allow a reasonable jury to conclude that McGullam‘s workplace was “permeated with discriminatory intimidation, ridicule, and insult,” causing her employment to be altered for the worse because of her gen-der. E.g., Gorzynski, 596 F.3d at 102; Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir.2003).4 The majority sets forth most of the comments and actions that were personally directed at McGullam, and I need not repeat them here. See Maj. Op. at 73. In addition, McGullam claims that she witnessed and overheard comments and displays while in the production de-partment that were sexually offensive and demeaning to wоmen generally, including:
a) a comment by a male manager to another male manager that an (unidenti-fied) woman was “well endowed” and had “double D‘s“; b) a conversation be-tween McGullam and two male co-work-ers about a client account McGullam had inherited, where one of the co-workers referred to the contact for that client as “generally a nice lady, except when she‘s on the rag“; c) comments by the male plant manager and other male employ-ees about a female employee at a sister company, with several employees spec-ulating that the female employee was “probably ‘a dog‘” and the manager re-sponding to the contrary that she was “probably beautiful” because “[a]fter all, the bitchier they are, the prettier they are“; d) a male employee “openly” and “constantly” “scratching and adjusting his genitals“; e) a male employee using the phrase “titty bar“; and f) repeated sexually explicit jokes by a particular male employee who every year at Christmas time performed a modified (and sexualized) version of the song “Oh Come All Ye Faithful” while “strok[ing] ... a large, imaginary penis,” and who on another occasion told a joke about having sexual relations with a 7-year-old girlfriend.
These incidents, and those described by the majority, are not exhaustive of McGul-lam‘s allegations.
In concluding that McGullam failed to establish a claim for hostile work environ-ment, the district court referred to plain-tiff‘s allegations as amounting to “off-hand remarks” and “jokes” that, though they “may have made Plaintiff uncomfortable,” were “not personally insulting, nor ... obviously intended to intimidate, ridicule, or demean Plaintiff on account of her gen-der.” See McGullam v. Cedar Graphics, Inc., 2008 WL 3887604, at *7.5 I do not believe the record, viewed in its totality, supports this conclusion. McGullam points to several incidents that were personally insulting and intended to intimidate, ridi-cule or demean her, including the com-ment—made in front of the entire produc-tion department—that her “problem” was that she did not “get fucked enough,” the comment by a male co-worker that she had a “big fat ass,” as well as the “joke” by a male co-worker who said that he wanted “to pump a bullet into [McGullam‘s] head, right behind [her] ear and blow [her] brains out.”
Moreover, these incidents must be con-sidered alongside the other comments, only some of which I mentioned above, that were not directed to or about McGul-lam, but also contributed to a work envi-ronment that was hostile to women. See Patane v. Clark, 508 F.3d 106, 114 (2d Cir.2007) (“[A] plaintiff need only allege that she suffered a hostile work environ-ment because of her gender, not that all of the offensive conduct was specifically aimed at her.“). The district court mini-mized these statements, claiming that there was “nothing in the record to indi-cate that the alleged conduct was made on the basis of gender,” and that “[a]t best, the evidence here demonstrates that the work environment was equally unprofes-sional for both men and women.” McGul-lam, 2008 WL 3887604, at *7. This was error.
Certainly, plaintiff, who proceeded pro se in this litigation, made multiple allega-tions about workplace vulgarity and poor manners that are not actionable under Ti-tle VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). But many of the comments that McGullam asserts she over-heard—including referenсes to one woman as a “dog” and as “bitch[y],” to another woman as being “on the rag,” and more generically to a “titty bar“—have obvious gender connotations that a person in plain-tiff‘s position reasonably could understand to be particularly demeaning to women as a group. That this sexually derogatory language was not always directed specifi-cally at McGullam or even necessarily at individual women, and rather appears to be the product of a locker-room office cul-ture that both men and women observed (and in which some women even participat-ed) does not insulate Cedar Graphics from a Title VII hostile work environment claim. See Petrosino v. Bell Atl., 385 F.3d 210, 221-23 (2d Cir.2004) (explaining that “[t]he mere fact that men and women are both exposed to the same offensive circum-stances on the job site ... does not mean that, as a matter of law, their work condi-tions are necessarily equally harsh” where a jury could reasonably find that certain offensive comments and materials were particularly offensive to women); see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir.2010) (en banc) (“[A] member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace, just because the workplace may be otherwise rife with gen-
C.
The severity of this pre-limitations peri-od conduct pushes in the direction of find-ing a single hostile work environment at Cedar Graphics that persisted through McGullam‘s transfer to the estimating de-partment and extended into the actionable limitations period. A person in McGul-lam‘s position, who had previously worked in an office where degrading discussion of women was pervasive and tolerated might understandably construe a salesman‘s sub-sequent references to women as “chickies” and his discussiоn of a girlfriend as not being “worth the trip” if she did not sleep with him as a continuation of the same hostile environment.
Nevertheless, I am ultimately persuaded that, based on the totality of circum-stances, these later comments were not part of the same employment practice as the earlier incidents that took place in the production department. The majority properly emphasizes the significance of McGullam‘s voluntary transfer out of the production department in this case, be-cause that transfer physically separated her from the atmosphere that had been hostile to her and limited (albeit without completely eliminating) her interaction with the employees from that department. McGullam indicated, in both her deposition testimony and in her journal, that the envi-ronment in the estimating department was “better,” and, as the majority notes, she pointed to no problems with anyone in the estimating department. For these rea-sons, and for others stated in the majority opinion, I do not believe that the sales-man‘s isolated сomments that McGullam overheard approximately a year after her transfer can be considered part of the same employment practice as the harass-ment from McGullam‘s time in the produc-tion department. As a result, I agree that the earlier harassment was outside the statute of limitations period and, hence, non-actionable.
II.
Even where incidents from outside of the limitations period are not sufficiently related to within-limitations incidents to be actionable under Morgan, they may still be germane to a plaintiff‘s Title VII claim in a different way. In Morgan, the Court held that, in contrast to hostile work environ-ment claims, discrete acts of alleged dis-crimination, such as termination, failure to promote, or refusal to hire, are not action-able if time barred. 536 U.S. at 113. But, the Court added, this does not “bar an employee from using the prior acts as background evidence in sup-port of a timely claim.” Id.; see also Petrosino, 385 F.3d at 220 (recognizing that plaintiff‘s claims based on earlier pro-motion denials were time barred, but de-termining that “evidence of earlier pro-motion denials may cоnstitute relevant background evidence in support of a timely claim” and would be so considered (inter-nal quotation marks omitted)). Similarly, alleged incidents that may not be consid-ered for purposes of establishing liability for a hostile work environment, because they occurred outside the limitations peri-od and were not sufficiently related to incidents within that period, nevertheless may be admissible and probative as back-ground evidence to support a claim based on alleged conduct that falls within the limitations period. See McGinest, 360 F.3d at 1114 n. 6 (endorsing this reading of Morgan). It is, therefore, a mistake to
The meaning of words and actions in the workplace frequently cannot be judged in a vacuum; their meaning may well depend on context. See Oncale, 523 U.S. at 81-82 (“The real social impact of workplace behavior often depends on a constellation of surrounding circum-stances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physi-cal acts performed.“). Prior incidents, even if they are not part of thе same employment practice, can provide such context. Thus, whether an objective ob-server would consider comments to have gender-discriminatory (or racially discrimi-natory) connotations, or to be intended to further a pattern of gender or racial dis-crimination, will not always be obvious, and may depend on circumstantial evi-dence. Cf. Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir.2008) (recognizing that direct evidence of discriminatory in-tent in employment discrimination cases is generally hard to come by, and that plain-tiffs must be able to rely on circumstantial evidence). Evidence that similar com-ments have previously been used by the same individual (or perhaps by others in the company) to harass on the basis of race or gender might well be relevant to how the later comments reasonably could be interpreted. And, significantly, that will be so even if the comments are not part of the same unlawful employment practice under Morgan because, for in-stance, the comments are separated by an important intervening action by the em-ployer and by a substantial amоunt of time.
In this respect, the severity of prior time-barred incidents may also be relevant as background evidence. Subjectively, a female plaintiff who has previously experi-enced an extremely hostile work environ-ment is more likely to perceive subsequent discriminatory incidents—that, let us as-sume, take place in a different department within the company, under different man-agers, and after some gap in time—to create an environment that is hostile to women. Similarly, the severity of such prior incidents is also relevant to an objec-tive observer‘s assessment of the latter environment. Objective judgment may more readily discount the earlier severe hostility, but at least in some circum-stances, such severe hostility may still be determinative.
Ultimately, I do not think that in the case before us the pre-limitations conduct affects the result. Even if the production department conduct is considered as back-ground evidence, and is deemed as severe as I take it to be, the “sleep-over com-ment” (whether or not it is combined with the “chickies” cоmments) is not adequate to survive summary judgment. In other cases, however, evidence from outside the limitations period pertaining to conduct that is no longer actionable might well make a difference in establishing the valid-ity of a plaintiff‘s timely claims.