Arizona Ex Rel Thomas Horne v. the Geo Group

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF ARIZONA, ex rel. Thomas No. 13-16081
C. Horne, Attorney General;
ARIZONA DEPARTMENT OF LAW, D.C. No.
Civil Rights Division, 2:10-cv-01995-
Plaintiffs-Appellants, SRB

and

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

ALICE HANCOCK,
Intervenor-Plaintiff,

v.

THE GEO GROUP, INC., a Florida
corporation, DBA Arizona State
Prison-Florence West and Central
Arizona Correctional Facility,
Defendants-Appellees,

RICK MAULDIN, an individual,
Defendant.
2 ARIZONA EX REL. HORNE V. THE GEO GROUP

STATE OF ARIZONA, ex rel. Thomas No. 13-16292
C. Horne, Attorney General;
ARIZONA DEPARTMENT OF LAW, D.C. No.
Civil Rights Division, 2:10-cv-01995-
Plaintiffs, SRB

ALICE HANCOCK,
Intervenor-Plaintiff, OPINION

and

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff-Appellant,

v.

THE GEO GROUP, INC., a Florida
corporation, DBA Arizona State
Prison-Florence West and Central
Arizona Correctional Facility,
Defendant-Appellee.

RICK MAULDIN, an individual,
Defendant.

Appeals from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding

Argued and Submitted
August 11, 2015—San Francisco, California
 ARIZONA EX REL. HORNE V. THE GEO GROUP 3

Filed March 14, 2016

Before: Stephen Reinhardt, A. Wallace Tashima,
and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

SUMMARY*

EEOC / Title VII

The panel vacated the district court’s summary judgment,
and remanded with instructions to reinstate the Equal
Employment Opportunity Commission and the Arizona Civil
Rights Division (“the Division”)’s claims brought on behalf
of aggrieved employees of Geo Group, Incorporated, alleging
violations of Title VII of the Civil Rights Act of 1964 and the
Arizona Civil Rights Act (“ACRA”).

The panel held that the EEOC and the Division
sufficiently conciliated its class claims against Geo in this
lawsuit in light of Mach Mining, LLC v. EEOC, 135 S. Ct.
1645 (2015). The panel assumed that Title VII and ACRA’s
exhaustion requirements applied in this case, and held that the
EEOC and the Division could maintain their claims on behalf
of aggrieved employees provided that the employee alleged
at least one act of misconduct occurred within 300 days prior
to the date the first aggrieved employee, Alice Hancock, filed
a charge against Geo. The panel also held that in an EEOC

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ARIZONA EX REL. HORNE V. THE GEO GROUP

class action an aggrieved employee was not required to file a
new charge of discrimination with the EEOC if the claim was
“like or reasonably related” to the initial charge. Finally, the
panel held that aggrieved employee Sofia Hines presented
material issues of fact as to her hostile work environment
claim.

COUNSEL

P. David Lopez, Lorraine C. Davis, Jennifer S. Goldstein, and
Anne Noel Occhialino (argued), Equal Employment
Opportunity Commission, Office of General Counsel,
Washington, D.C., for Plaintiff-Appellant EEOC.

Thomas C. Horne, Attorney General of Arizona; Rose Daly-
Rooney and Christian B. Carlsen (argued), Assistant
Attorneys General, Civil Rights Division, Tucson, Arizona,
for Plaintiffs-Appellants State of Arizona and Arizona
Department of Law.

Philip L. Ross (argued), Littler Mendelson, P.C., San
Francisco, California; R. Shawn Oller and Kristy L. Peters,
Littler Mendelson, P.C., Phoenix, Arizona, for Defendant-
Appellee The Geo Group.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 5

OPINION

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
6 ARIZONA EX REL. HORNE V. THE GEO GROUP

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, 135 S. Ct. 1645 (2015).1 Assuming that Title
VII and the ACRA’s exhaustion requirements apply in this
case, we hold that the EEOC and the Division may maintain
their claims on behalf of aggrieved employees provided that
the employee has alleged at least one act of misconduct that
occurred within 300 days prior to the date the first aggrieved
employee, Alice Hancock, filed her charge against Geo. We
also hold that in an EEOC class action an aggrieved employee
is not required to file a new charge of discrimination with the
EEOC if her claim is already encompassed within the
Reasonable Cause Determination or if the claim is “like or
reasonably related” to the initial charge. Finally, we hold that
aggrieved employee Sofia Hines has presented material issues
of fact as to her hostile work environment claim.

I

Alice Hancock was employed by Geo as a correctional
officer at the Arizona State Prison, Florence West Facility.

1
The district court did not have the benefit of Mach Mining, which was
not decided until after this case was on appeal.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 7

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
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).
3
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.
8 ARIZONA EX REL. HORNE V. THE GEO GROUP

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
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
 ARIZONA EX REL. HORNE V. THE GEO GROUP 9

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.
10 ARIZONA EX REL. HORNE V. THE GEO GROUP

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

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.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 11

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
12 ARIZONA EX REL. HORNE V. THE GEO GROUP

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
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.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 13

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., 632 F.3d 607, 610 (9th Cir. 2011). We focus on (1) the
agencies’ obligation to seek conciliation prior to filing suit on
behalf of aggrieved employees, (2) when the 300-day period
begins to run for employees who seek to join an agency 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 Sophia Hines has presented material issues
of fact that precluded summary judgment against her.

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
14 ARIZONA EX REL. HORNE V. THE GEO GROUP

procedure through which the [EEOC] enforces the statute’s
prohibition on employment discrimination.” Mach Mining,
LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015) (unanimous).
“The process generally starts when ‘a person claiming to be
aggrieved’ files a charge of an unlawful workplace practice
with the EEOC.” Id. (quoting 42 U.S.C. § 2000e-5(b)).
“[T]he EEOC notifies the employer of the complaint and
undertakes an investigation.” Id. “If the Commission finds
no ‘reasonable cause’ to think that the allegation has merit, it
dismisses the charge and notifies the parties,” and “the
complainant may then pursue her own lawsuit if she
chooses.” Id. (citing 42 U.S.C. § 2000e-5(f)(1)).

“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., 678 P.2d 494, 497 (Ariz. Ct.
App. 1983) (quoting Higdon v. Evergreen Int’l Airlines, Inc.,
673 P.2d 907, 909–10 n.3 (Ariz. 1983)). It contains a similar
condition requiring a conciliation attempt. Ariz. Rev. Stat.
§ 41-1481(B), (D).
 ARIZONA EX REL. HORNE V. THE GEO GROUP 15

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. 135 S. Ct. at 1651. The Court unanimously
held that courts have jurisdiction to review whether the
EEOC has satisfied the pre-suit conciliation requirement. Id.
at 1652–53. However, the review of whether the EEOC has
satisfied its pre-suit conciliation requirements is “limited.”
Id. at 1653.

[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
16 ARIZONA EX REL. HORNE V. THE GEO GROUP

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
 ARIZONA EX REL. HORNE V. THE GEO GROUP 17

about conciliating the claim, a court must
conduct the factfinding necessary to decide
that limited dispute. Cf. id., at –––– – ––––,
134 S.Ct., at 2367–2368. Should the court find
in favor of the employer, the appropriate
remedy is to order the EEOC to undertake the
mandated efforts to obtain voluntary
compliance. See § 2000e-5(f)(1) (authorizing
a stay of a Title VII action for that purpose).

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).
18 ARIZONA EX REL. HORNE V. THE GEO GROUP

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.5 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.

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.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 19

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.6

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

6
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, 679 F.3d at 667–69, 673–74. Here,
Hancock’s initial charge prompted an investigation that revealed multiple
potential victims of discrimination, harassment, and retaliation and
harassers who had worked at Geo’s Florence West and CACF facilities.
Florence West and CACF are both owned and operated by Geo. They are
neighboring facilities on the same road. Florence West houses the return-
to-custody and driving-under-the-influence unit and CACF houses the
medium-security sex-offender unit. The facilities’ units were identified
in the Reasonable Cause Determination as part of the class, and the EEOC
and Division attempted conciliation of those class claims.
20 ARIZONA EX REL. HORNE V. THE GEO GROUP

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, 446 U.S. 318, 333–34 (1980). Additionally,
we have noted, in a different posture, that the EEOC is not
required to provide documentation of individual attempts to
conciliate on behalf of each potential claimant in a class
action. EEOC v. Bruno’s Restaurant, 13 F.3d 285, 289 (9th
Cir. 1993). In Bruno’s, the defendant restaurant fired its
pregnant waitresses. The EEOC investigated and found
reasonable cause to believe that the defendant had illegally
discriminated against them. Id. at 286–87. The defendant
rejected the EEOC’s efforts to settle and the EEOC brought
suit. The district court dismissed the EEOC’s action and
awarded the defendant its attorney’s fees based on the failure
of the EEOC to conciliate a pattern and practice claim. Id. at
288. We vacated the award of attorney’s fees holding that the
EEOC could have reasonably believed that its efforts to
conciliate were sufficient. Although we clarified that we
were not deciding whether the EEOC in fact conciliated the
claim, we acknowledged case law that had held “in a class
action suit, the EEOC is not required to provide
documentation of individual attempts to conciliate on behalf
of each potential claimant.” Id. at 289 (quoting EEOC v.
Rhone-Poulenc, Inc., 876 F.2d 16 (3d Cir. 1989)) (alteration
omitted).

Our view is also consistent with the rulings of our sister
circuits. See, e.g., Serrano v. Cintas Corp., 699 F.3d 884, 904
(6th Cir. 2012) (holding that EEOC satisfied its pre-suit
requirement to attempt to conciliate class claims by
“provid[ing] notice to Cintas that it was investigating class-
wide instances of discrimination”); Rhone-Poulenc, Inc., 876
 ARIZONA EX REL. HORNE V. THE GEO GROUP 21

F.2d at 17 (per curiam) (holding “the EEOC is not required to
provide documentation of individual attempts to conciliate on
behalf of each potential claimant” (internal quotation marks
omitted)); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101
(6th Cir. 1984) (“The record establishes that the EEOC
sought to conciliate the class based claim with Keco.”);
EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1185–86 (4th Cir.
1981) (holding that EEOC’s conciliation efforts regarding
discriminatory practices at one branch office were sufficient
to cover claims of similar discrimination at another branch).

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.
22 ARIZONA EX REL. HORNE V. THE GEO GROUP

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
. . . .”7 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., 419 F.3d 885, 892 (9th Cir. 2004) (citing Nat’l R.R.
Passenger v. Morgan, 536 U.S. 101, 114 (2002)). An
individual’s failure to file a charge with the agency within
this time frame will usually operate to bar that person from
bringing a lawsuit for failure to exhaust their administrative
remedies. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393–94 (1982). However, unnamed class members in a
private class action need not exhaust administrative remedies.
United Airlines, Inc. v. McDonald, 432 U.S. 385, 389 n.6
(1977) (“[F]ull relief under Title VII ‘may be awarded on a
class basis . . . without exhaustion of administrative
procedures by the unnamed class members.’” (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8
(1975)); Franks v. Bowman Transp. Co., 424 U.S. 747, 771
(1976) (“Th[e] justification [that unnamed class members had
not filed administrative charges] for denying class-based
relief in Title VII suits has been unanimously rejected by the
courts of appeals, and Congress ratified that construction by
the 1972 [Title VII] amendments.”); Albemarle Paper Co.,

7
In states that do not have a fair employment agency or have not agreed
to receive EEOC charges on a deferral basis, the time for filing a charge
of employment discrimination is 180 days of the alleged unlawful
occurrence. 42 U.S.C. § 2000e-5(e)(1). The parties agree that the 300-
day rule applies in Arizona, a deferral state.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 23

422 U.S. at 414 (“[B]ackpay may be awarded on a class basis
under Title VII without exhaustion of administrative
procedures by the unnamed class members.”).

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, 682 F.3d 1126, 1136
(9th Cir. 2012) (citing, inter alia, Bean v. Crocker Nat’l
Bank, 600 F.2d 754, 759 (9th Cir. 1979)). The piggyback
rule is a judicially created equitable tolling rule “based on the
observation that it would be duplicative and wasteful for
complainants with similar grievances to have to file identical
notices of intent to sue with a governmental agency.” Id.
(citing Bean, 600 F.2d at 760 n.15).

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.8

8
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, 920 F.2d 1451, 1456
(9th Cir. 1990). However, it makes little sense for an agency to exhaust
remedies before itself. See EEOC v. Waffle House, Inc., 534 U.S. 279,
288 (2002) (“[T]he EEOC does not function simply as a vehicle for
24 ARIZONA EX REL. HORNE V. THE GEO GROUP

We hold that the district court erred in requiring that
aggrieved employees allege an act that occurred within the
300 days before the Reasonable Cause Determination. The
proper starting date of the EEOC and Divison’s class action
is 300 days prior to Hancock’s charge, not the Reasonable
Cause Determination. This is evident from the plain language
of Title VII that requires a “charge” be filed “within three
hundred days after the alleged unlawful employment practice
occurred . . . .” 42 U.S.C. § 2000e-5(e)(1). Nothing in the
text refers to the agencies’ Reasonable Cause Determination
or indicates that a Reasonable Cause Determination be filed
within 300 days of the alleged unlawful employment practice.
Rather, the statute’s timing requirement refers exclusively to
the “charge.”

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., 727 F.2d 1429,
1442 (9th Cir. 1984), as modified, 742 F.2d 520 (1984). As
Domingo holds that the 300-day period starts from the date of
the charge filed by the named plaintiff for all class members
in a private class action, it follows that the limitations period
for class actions brought by the EEOC should be no later.

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, 437 F.3d 695, 696 (7th Cir. 2006) (“[T]he Commission is not bound
by the failure of the Sidley ex-partners to exhaust their remedies; the
Commission had no duty to exhaust.”). We need not address whether the
EEOC is subject to the same strict timing requirements as private litigants
because it is undisputed that the aggrieved employees here alleged acts
that occurred within the 300 days prior to Hancock’s charge.
 ARIZONA EX REL. HORNE V. THE GEO GROUP 25

days preceding the Reasonable Cause Determination in an
EEOC class action. The district court may have been
concerned that Hancock’s initial charge did not provide
sufficient notice to Geo of the existence of class claims by
other aggrieved female employees, particularly those
employed at the CACF, a different facility than where
Hancock worked. See Hipp v. Liberty Nat. Life Ins., 252 F.3d
1208, 1226 (11th Cir. 2001) (per curiam) (“A single charge
cannot be expected to put the EEOC and employer on notice
that general policies as applied to different individuals in
different offices are being challenged indefinitely.”).
However, this concern fails to distinguish the time frame in
which the employee is required to file their charge of
discrimination (i.e., 300 days after the alleged unlawful
employment practice occurred) from the EEOC’s
responsibility to notify the employer of the results of the
EEOC’s investigation. Nothing in the text of the statute
supports the district court’s imputation of the employee’s
time limit into the EEOC’s duty to notify the employer of the
results of its investigation.

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, 102 F.3d 1035,
1042–43 (9th Cir. 1996). In Paige, we held that the plaintiff
could maintain a class action alleging disparate impact in
promotions even though he had not raised class claims in the
administrative charge. Id. We explained that “even if neither
the EEOC nor the [state] charges on their face explicitly
alleged class discrimination, it is plain that an EEOC
investigation of class discrimination on the basis of race
could reasonably be expected to grow out of the allegations
in the charges.” Id. at 1042 (citing Fellows v. Universal
26 ARIZONA EX REL. HORNE V. THE GEO GROUP

Rests., Inc., 701 F.2d 447, 451 (9th Cir. 1983)). Similarly, in
Lucky Stores, Inc. v. EEOC, 714 F.2d 911, 913 (9th Cir.
1983), we held that the EEOC could bring claims on behalf
of employees at Sacramento and San Leandro facilities where
the employer had “adequate notice” notice that the EEOC
was investigating those facilities’ successor facility in
Vacaville.9

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,
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, 102 F.3d at 1042–43, n.9 (“[T]he investigation that
actually results or that can reasonably be expected to result
from a charge filed by an individual is not limited by the
literal terms of the charge.”). The EEOC and the Division

9
We have also rejected the notion that an EEOC lawsuit on behalf of a
class of employees must be confined to the allegations in the original
charge. EEOC v. Hearst Corp., 553 F.2d 579, 580–81 (9th Cir. 1976) (per
curiam) (holding EEOC could maintain an action alleging discrimination
against women and minority groups although the original charge alleged
only discrimination against males); EEOC v. Occidental Life Ins., 535
F.2d 533, 540–41 (9th Cir. 1976) (holding EEOC could maintain action
alleging discrimination against male employees in the administration of
the retirement system although original charge was filed by female
alleging discrimination on the basis of her sex).
 ARIZONA EX REL. HORNE V. THE GEO GROUP 27

then brought an enforcement action against Geo on the same
grounds articulated in Hancock’s charge: discrimination,
harassment, and retaliation against female correctional
officers.10

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

10
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.
28 ARIZONA EX REL. HORNE V. THE GEO GROUP

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8
(9th Cir. 2010). Whether an aggrieved employee is required
to file a new charge of discrimination in an EEOC class
action is an issue of law, that the district court addressed, and
that otherwise could result in prejudice to those aggrieved
employees if we did not discuss it.

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., 553 F.2d 579, 580 (9th Cir. 1976).
Similarly, in EEOC v. Farmer Bros. Co., 31 F.3d 891, 899
(9th Cir. 1994), we held that the EEOC could assert an
employee’s discriminatory layoff claim as it was “like and
reasonably related to” her charge which alleged
discriminatory failure to recall and rehire. See also Vasquez
v. Cty. of L.A., 349 F.3d 634, 644 (9th Cir. 2004) (holding
individual employee may assert unexhausted retaliation claim
if the later claim is “reasonably related” to the allegations in
the employee’s timely filed charge). We “consider [a]
plaintiff’s civil claims to be reasonably related to allegations
in the charge to the extent that those claims are consistent
with the plaintiff's original theory of the case.” Freeman v.
Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002)
(quoting B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100
(9th Cir. 2002)).

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
 ARIZONA EX REL. HORNE V. THE GEO GROUP 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.11

11
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
30 ARIZONA EX REL. HORNE V. THE GEO GROUP

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
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., 192 F.3d 902, 908 (9th Cir. 1999)). “‘Conduct must be
extreme to amount to a change in the terms and conditions of
employment.’ To be actionable under Title VII, ‘a sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did

in a private class action. Compare Martinez v. Potter, 347 F.3d 1208,
1210–11 (10th Cir. 2003) and Richter v. Advance Auto Parts, Inc., 686
F.3d 847, 851 (8th Cir. 2012), with Jones v. Calvert Group, Ltd., 551 F.3d
297, 302–03 (4th Cir. 2009); Swearnigen-El v. Cook County Sheriff's
Dep’t, 602 F.3d 852, 864 n.9 (7th Cir. 2010).
 ARIZONA EX REL. HORNE V. THE GEO GROUP 31

perceive to be so.’” Montero v. AGCO Corp., 192 F.3d 856,
860 (9th Cir. 1999) (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 787–88 (1998)). Courts determine whether an
environment is sufficiently hostile or abusive by “‘looking at
all the circumstances,’ including the ‘frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’” Kortan, 217 F.3d at 1110 (quoting Faragher,
524 U.S. at 787–88).

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
he wanted to take a trip to the mountains with her and
commented on how “well built” she was. Burrell v. Star
Nursery, Inc., 170 F.3d 951, 953–55 (9th Cir. 1999).

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
32 ARIZONA EX REL. HORNE V. THE GEO GROUP

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.12

The cases cited by Geo, Kortan, 217 F.3d at 1104, and
Surrell v. California Water Service Co., 518 F.3d 1097 (9th
Cir. 2008), are inapposite. In Kortan, a majority of the panel
held that there was no material issue of fact as to harassment
where the plaintiff alleged that a supervisor referred “once or
twice” to another female as a “castrating bitch,” “Madonna,”
and a “regina,” but plaintiff herself did not regard this as
harassing, and the supervisor never directed a sexual insult at
plaintiff. 217 F.3d at 1106–07, 1110–11. Surrell held that
there was no severe or pervasive harassment when the
plaintiff’s supervisor confronted her in front of a customer
about failing to perform an aspect of her job. Surrell, 518
F.3d at 1108–09. Neither Kortan nor Surrell, unlike the case
before us, contained allegations of physical touching of the
plaintiff and repeated comments and gestures directed to her.

* * *

12
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
evidence of qualitative and quantitative differences in the harassment
suffered by female and male employees.” EEOC v. Nat’l Educ. Ass’n,
Alaska, 422 F.3d 840, 842 (9th Cir. 2005); see also Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“[H]arassing conduct need
not be motivated by sexual desire to support an inference of discrimination
on the basis of sex.”). Here, the operative complaints allege both “sex-
based hostile work environment and sexual harassment.”
 ARIZONA EX REL. HORNE V. THE GEO GROUP 33

Congress and the Arizona legislature have imbued the
EEOC and the Division with the responsibility to eliminate
unlawful workplace discrimination. See 42 U.S.C. § 2000e-
5(a); Ariz. Rev. Stat. § 41-1402. In carrying out this
responsibility, the EEOC and the Division were required to
attempt conciliation with Geo prior to filing their class suit
seeking damages before bringing suit. They did so here by
describing how a class of female prison guards were subject
to discrimination, harassment, and retaliation, and by sending
a conciliation letter to Geo and attending a full day mediation
session. See Mach Mining, 135 S. Ct. at 1656. We further
hold that in this lawsuit brought by the EEOC and the
Division on behalf of a class of employees, the starting date
for the class action is 300 days before the filing date of
Hancock’s charge. We vacate the district court’s per se
exclusion of discrete acts that occurred after the Reasonable
Cause Determination. Finally, we hold that Sophia Hines has
presented material issues of fact as to her hostile work
environment claim, and accordingly, the district court’s grant
of summary judgment against her is vacated.

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.