STATEMENT OF INTEREST

This case involves the application of the statute of limitations to a racially hostile work environment claim and the proper assessment of that claim on a summary judgment motion. The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency Congress charged with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. Although this hostile work environment case arose under 42 U.S.C. § 1981, rather than Title VII, the elements and analysis are identical under both statutes. S priggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001).

The district court in this case applied National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), correctly: it considered all incidents comprising plaintiff’s hostile work environment claim, including those predating the limitations period. However, the court erroneously disaggregated the harassment, incorrectly refused to consider much of plaintiff’s relevant evidence as non-race based or insufficiently specific, and then improperly discounted much of what remained. Because the EEOC has a strong interest in the proper interpretation of the federal anti-discrimination employment laws, it offers its views to the Court. Fed. R. App. P. 29(a).

1. Under applicable Supreme Court precedent, should a court consider all acts before and during the limitations period that contribute to a single alleged racially hostile work environment?

2. Did the district court erroneously assess plaintiff’s hostile work environment claim when it disaggregated incidents of racial harassment, refused to consider facially neutral “pranks” and comments accompanying overtly discriminatory acts, deemed evidence relating to other incidents insufficiently specific, and concluded as a matter of law that the harassment was not severe or pervasive?

3. Did the district court err in concluding that plaintiff’s employer was not liable for the alleged harassment as a matter of law?

STATEMENT OF THE CASE

a. Statement of the Facts

Defendant-Appellee Louisiana-Pacific Corp. (“LP”) is a building products manufacturer. Parks began working at LP’s facility in Roaring River, North Carolina, as a temporary utility worker in June 2004, and became a permanent employee two months later. 1.JA.73-74.[2] He transferred to the maintenance department in December 2005, where he worked until his March 2015 termination. 1.JA.80, 167-68. He received periodic promotions and pay raises. 1.JA.81-86.

Parks offered evidence that his maintenance department co-workers subjected him to a variety of racial slurs during his employment, both directly and indirectly. He testified that, in 2005 or 2006, someone put a sign on his locker saying, “We don’t want niggers in maintenance.” 3.JA.514. He asserted that one co-worker called him “nigger” directly, while another called him “bootlip” and “blue gum.” 3.JA.520, 509-10. His co-workers told racist jokes about African-Americans around him and asked him if he dealt drugs. 3.JA.511, 513. Parks also testified that someone taped to his locker a picture of a gunman killing a monkey representing President Obama. 3.JA.514, 567.

The record also contains evidence that the LP facility contained extensive racist graffiti that was never satisfactorily eliminated during Parks’s employment. In his deposition, Parks agreed that he saw “various symbols of racism on a daily basis.” 3.JA.500. He saw “nigger” and “KKK” carved into the bathroom stall. 3.JA.501-02, 515. He tried to paint over the graffiti, but someone always drew it back in with a marker soon afterwards. 3.JA.515. A co-worker’s truck in the company parking lot had a bumper sticker equating President Obama with Osama bin Laden and displaying a swastika. 3.JA.516. Parks also saw Confederate flags on nearly half the maintenance men’s lunchboxes, on hats, on lockers, and in the bathroom, and saw a larger one inside a maintenance department shed. 3.JA.500-03.

Michael Houpe, Parks’s son who also worked at the Roaring River plant, similarly testified that “nigger,” “nigger go home,” and “niggers don’t belong here” were written in different parts of the bathrooms and the maintenance department locker room. 2.JA.402, 406-13. When the graffiti was removed in response to a complaint, it would invariably come back in a week or two and stay up for months. 2.JA.402, 406-07. Houpe also testified that he repeatedly saw swastikas and Confederate flags. 2.JA.395, 400-17. He saw “KKK” written on bathrooms, lockers, a breakroom table, forklifts, and a maintenance locker. 2.JA.413. He testified that a large sticker of a Confederate flag saying “Rebel Pride” was visible at the entrance to the facility, and an average of five to ten times per day, every day, he saw Confederate flags on stickers, lockers, license plate holders, shift carts, work stations, and clothing. 2.JA.413-17. He also testified to hearing racial slurs “countless” times, including the term “coon” over twenty times, “wet back” “[a]ll the time,” and “slick back niggers” twice. 2.JA.389-90, 394, 400.

During his time in LP’s maintenance department, Parks was subjected to a number of incidents the district court described as “pranks.” 1.JA.32, 39-40. One such “prank” was putting a dead skunk inside Parks’s locker and welding it shut for a week while Parks was on vacation. 3.JA.503-04. Later, someone placed severed deer genitalia on his belongings inside his locker. 3.JA.504. Six or seven times someone hid Parks’s tools, the cart holding them, and his keys, up to a quarter-mile away. 3.JA.505. In early 2015, when Parks came back several months after having shoulder surgery, he saw that hundreds of freeze pop wrappers, many still containing liquid, had been placed in his locker. 3.JA.506, 507. When he complained, his supervisor refused to take the incident seriously, telling Parks, “If they didn’t like you, they wouldn’t mess with you.” 3.JA.507. Parks, the only African-American working in the maintenance department at that time, testified that he was unaware of anyone else having such “pranks” played on him. 3.JA.508. Houpe corroborated this assessment. 2.JA.383-84.

Parks complained to his supervisors about some of this conduct, including the dead skunk (3.JA.504), the deer genitalia (3.JA.504), the ice pop wrappers (3.JA.508), the “bootlip” slur (3.JA.509), the “blue gum” slur (3.JA.522), the Obama cartoon (3.JA.515), the racist note on his locker (3.JA.522), and the hiding of his tools and cart (3.JA.522). Although the specific conduct would not recur (for example, his co-worker did not repeat a particular slur after Parks complained), the environment as a whole retained its general racial hostility, as the racial graffiti and symbols persisted. 3.JA.515; 2.JA.396, 406.

LP terminated Parks on March 23, 2015. 1.JA.167-68. Houpe testified that a new supervisor arrived soon afterwards who prioritized removing racist graffiti and ended the problem. 2.JA.396-97, 417-20.

b. District Court’s Decision

Parks filed suit alleging, inter alia, a claim of race-based hostile work environment under 42 U.S.C. § 1981. The district court granted summary judgment to LP. The court began its analysis by assuming without deciding that the “continuing violation doctrine” applied to Parks’s evidence regarding incidents that predated the limitations period. 1.JA.36-38 (citing Morgan, 536 U.S. at 120; Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 222-23 (4th Cir. 2016)). It then explained that it would not consider the “pranks” played on Parks “as part of the totality of the circumstances” because Parks “failed to produce any evidence beyond his own speculation that the pranks . . . were ‘based on race’” and “failed to establish that but for his race, he would not have been subjected to pranks by his coworkers.” 1.JA.39-40. The court also refused to consider the “drug dealer” comment because Parks had not provided evidence that the comment was based on his race. 1.JA.40.

The court next concluded that the harassing incidents were not objectively severe or pervasive. 1.JA.40-45. In reaching this decision, the court stated that Parks did not provide sufficient “reasonable specifics” about the conduct undergirding his claims. It noted that Parks identified only two co-workers by name who used racial slurs (one of whom apologized), he did not “identify a single LP employee or manager who displayed a confederate flag, offensive bumper sticker, or told a racist joke,” he provided no approximate dates for almost all of the incidents, and his “upward trajectory” in his department was unaffected. 1.JA.42-43.

The court then broke down Parks’s allegations into “eight incidents” of the use of “nigger” at LP, rejecting three because they were based on hearsay testimony and another two for lack of evidence that Parks knew about them. 1.JA.43. Left with only three — the “we don’t want niggers in maintenance” sign on his locker, his co-worker’s slur to him in 2015, and the bathroom graffiti — the court concluded that “Plaintiff has described a series of infrequent incidents that occurred over a ten-year period that cannot rise to the ‘severe or pervasive’ level required for a hostile work environment claim.” 1.JA.43-44. The court emphasized that Parks provided no evidence of supervisor harassment and was promoted and given pay raises. 1.JA.44-45. The court cited three unpublished decisions — two from this Court and one from the Eleventh Circuit — in support of this conclusion. Id.

In addition, the court found that Parks did not establish that LP could be liable for any of the harassment, even if it were severe or pervasive. 1.JA.46-49. The court first explained that it would consider “only . . . those acts which Plaintiff himself testified to as the basis for his hostile work environment claim, not a general atmosphere at LP.” 1.JA.47. Looking only at this subset, the court divided the harassment into explicitly race-based incidents Parks complained about (the verbal slurs and the racist cartoon on his locker) and those LP should have known about (the racist bathroom graffiti, the swastika bumper sticker equating President Obama and Osama bin Laden, and the racist sign on his locker). Id. As to the former, it concluded that “harassment consistently stopped after Plaintiff complained about it to LP.” 1.JA.48. Regarding the latter, the court found that Parks produced no evidence showing LP should have known of these incidents. Id.

ARGUMENT

An employer violates the federal antidiscrimination laws, inter alia, when it “requir[es] an African-American employee to work in a racially hostile environment.” B oyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). A hostile work environment exists “[w]hen the workplace is permeated with discriminatory 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). To establish a hostile work environment claim, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff’s race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto, 786 F.3d at 277 (internal alterations and quotation marks omitted). Elements of a hostile work environment claim are identical under Title VII and § 1981. Spriggs, 242 F.3d at 184.

Whether a work environment is sufficiently “‘hostile’ or ‘abusive’” under this standard “can be determined only by looking at all the circumstances.” Harris, 510 U.S. at 23; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (courts and juries assessing a hostile work environment claim should examine the “constellation of surrounding circumstances, expectations, and relationships” involved in a workplace setting, “which are not fully captured by a simple recitation of the words used or the physical acts performed”). This determination “is quintessentially a question of fact.” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 208 (4th Cir. 2014) (internal quotation marks omitted).

In applying this standard, the district court erroneously restricted the evidence it would consider. The court divided up Parks’s hostile work environment claim into its constituent parts, eliminated incidents that did not have a clear racial component to them and those that did not arise from Parks’s deposition testimony itself, and disregarded many of the remaining incidents because it deemed them insufficiently supported. It then determined that the few surviving incidents were too isolated and sporadic to meet the “severe or pervasive” requirement for a hostile work environment claim. This disaggregation approach was incorrect. The district court must instead view the totality of the circumstances to determine whether a reasonable jury could find in favor of the plaintiff. See Harris, 510 U.S. at 23; Conner v. Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 193-94 (4th Cir. 2000).

Under a correct application of the legal standards to the facts of the case, one that “concentrate[s] not on individual incidents, but on the overall scenario,” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (internal quotation marks omitted), a reasonable jury could find that Parks established each component of his hostile work environment claim. See generally Conner, 227 F.3d at 193-94 (reversing district court’s judgment for the employer on plaintiff’s hostile work environment claim because the court “improperly disaggregat[ed] the incidents [of harassment] from the whole”). Given evidence of specific racial slurs targeting Parks, the racist note and cartoon taped to his locker, the widespread racist graffiti, and the multiple “pranks” victimizing him, a reasonable jury could find unwelcome race-based conduct that was both severe and pervasive enough to alter the conditions of his employment and create a hostile work environment. Summary judgment was also inappropriate on the question of LP’s liability, because a reasonable jury could find that LP did not take sufficient affirmative steps to improve conditions at the Roaring River facility despite actual and constructive knowledge of a racially hostile work environment.

I. In Considering the Hostile Work Environment Claim, the District Court Correctly Examined Acts Falling Both Within and Outside the Limitations Period.

The district court properly considered conduct predating the limitations period, along with conduct that fell within that period. 1.JA.38. A four-year statute of limitations applies to § 1981 hostile work environment claims. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004); Guessous, 828 F.3d at 223. As the Supreme Court has explained, however, a hostile work environment “cannot be said to occur on any particular day. It occurs over a series of days or perhaps years.” Morgan, 536 U.S. at 115; see also Guessous, 828 F.3d at 221 (“A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice.”); id. at 224 (“constituent acts” creating a hostile work environment are “effectively indivisible”). Addressing the unique character of hostile work environment claims which, by “[t]heir very nature[,] involve[] repeated conduct,” the Supreme Court explained that, so long as “an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Morgan, 536 U.S. at 117. Although Morgan arose under Title VII, the same analysis applies to § 1981 claims. See Guessous, 828 F.3d at 224.

Applying Morgan, this Court has held that “an incident falling within the applicable limitations period need only, in order for the continuing violation doctrine to apply, have contributed to the hostile work environment.” Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 141 (4th Cir. 2007); see also Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (“The [Morgan] theory allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, i.e., when the incidents make up part of a hostile work environment claim.”). Here, Parks contends that the work environment was pervasively racially hostile toward African-Americans. He supports this claim with evidence of racism that was both direct (racial slurs and epithets; racist messages and cartoons taped to his locker; extreme “pranks” played on him as the only African-American employee in his department) and indirect (persistent racial slurs and racist graffiti and symbols throughout the facility). Because Parks worked at the same facility throughout his employment, and the nature of the harassment remained consistently racial, with no effective intervention from LP, the objectionable conduct all relates to the creation of a hostile work environment, a single employment practice. See Guessous, 838 F.3d at 223-24. Thus, so long as one act contributing to the hostile work environment occurred within four years of the day Parks filed suit — i.e., after January 19, 2014 — the court may consider all allegations making up a hostile work environment claim.

Such harassment occurred after January 19, 2014. The freeze pop incident occurred in early 2015, and Parks testified that racist symbols were visible on a daily basis until his March 23, 2015, termination. See 3.JA.507 (freeze pop incident); 3.JA.500 (exposure to racist symbols); 1.JA.167-68. Pursuant to Morgan, then, the court properly considered these acts and harassing acts that predated the limitations period.

II. The District Court Improperly Disaggregated and Rejected or Discounted Much of Parks’s Relevant Evidence.

The district court improperly failed to consider much of the relevant evidence Parks submitted in concluding that the race-based harassment he described was insufficiently “severe or pervasive” to support his hostile work environment claim. To determine whether the work environment is objectively hostile or abusive, a court must “look[] at all the circumstances.” Harris, 510 U.S. at 23; Boyer-Liberto, 786 F.3d at 277; Spriggs, 242 F.3d at 184. Despite this directive, the district court carved up the various harassing incidents, erroneously considered each in isolation, and determined that this atomized evidence was insufficiently severe or pervasive. A reasonable jury, hearing the full range of admissible evidence regarding the discriminatory environment confronting Parks, could have found in his favor on the hostile work environment claim.

A. The District Court Erroneously Disregarded Parks’s Relevant Evidence of Racial Harassment Because It Thought the Harassment Was Facially Neutral.

In considering Parks’s evidence of harassment, the district court refused to take into account the “pranks” played on Parks, because it found that he “failed to produce any evidence beyond his own speculation” that these incidents “were ‘based on race.’” 1.JA.39-40. This was erroneous; a reasonable jury could have found Parks’s co-workers targeted him because of his race, particularly in light of the other incidents involving overt racism. This Court addressed this issue in an analogous context in EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008), holding that the plaintiff’s allegations of facially neutral harassment must be considered along with allegations of overtly discriminatory harassment. Id. at 317-18. Sunbelt Rentals involved a Muslim employee who alleged he was subjected to a religiously hostile work environment. Although much of the harassment was specifically religious, it also included a non-religious component, with co-workers hiding his timecard, unplugging his computer, and writing insults on his business card. Id. Addressing this “harassment lacking a direct religious nexus,” this Court explained that it was nevertheless relevant to his discrimination claims: “In light of the extensive, explicitly religious harassment by the same co-workers, a reasonable jury could infer that other harassing incidents were also motivated by a disdain for [the employee’s] faith.” Id. at 318.

Other circuits considering a similar factual backdrop have come to the same conclusion.[3] As the Tenth Circuit explained, “Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior.” Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (internal quotation marks omitted). The First Circuit similarly explained that claim disaggregation “defies the [Supreme Court’s] directive to consider the totality of circumstances . . . and robs the incidents of their cumulative effect.” O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (internal citations, quotation marks, and alterations omitted); see generally Aman, 85 F.3d at 1083 (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” (internal quotation marks omitted)).

In light of this standard, the district court committed reversible error when it refused to consider the allegations concerning the “pranks” played on Parks. A reasonable jury could certainly find that these “pranks” were based on Parks’s race. As detailed above, while Parks was on vacation, his co-workers placed a dead skunk in his locker and welded it shut. Another time they placed deer genitalia on his personal belongings inside the locker. When he was recovering from shoulder surgery, they placed hundreds of freeze pop wrappers, many still containing liquid, in his locker. On six or seven other occasions, they hid his tools, keys, and cart, up to a quarter-mile away. Parks and Houpe testified that Parks, the only African-American in the maintenance department, was the only one subjected to this treatment. Even if the court were not convinced that these incidents were racially motivated, a reasonable jury could find they had a racial genesis, especially in light of the other racist incidents Parks experienced and the racist symbols he routinely witnessed. At the summary judgment stage, the court was required to “draw all reasonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

Similarly, the court erred in refusing to consider that a co-worker, upon learning that Parks had recently moved to a nicer house, asked if he was a drug dealer. Courts have held that analogous comments may contribute to a racially hostile work environment claim. See, e.g., McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1107, 1116-17 (9th Cir. 2004) (calling plaintiff a “drug dealer” could be considered racially motivated); Wallace v. Seton Family of Hosps., 777 F. App’x 83, 85, 90 n.9 (5th Cir. 2019) (reference to being “too ghetto” was “racially charged” and potential evidence of discriminatory pretext); see generally Aman, 85 F.3d at 1083 (use of racial “code words” may violate Title VII). A reasonable jury could have concluded that the comment contributed to a racially hostile environment.

B. The District Court Erroneously Discounted Parks’s Evidence of Overtly Racially Discriminatory Incidents Based on an Ostensible Lack of Specificity.

The district court also incorrectly discounted both Parks’s and Houpe’s accounts of the severe and pervasive racism at the facility. Citing Skipper v. Giant Food Inc., 68 F. App’x 393 (4th Cir. 2003) — an unpublished case that no appeals court, including this Court, has cited for a substantive legal point in the sixteen years since its issuance — the court stated that plaintiffs must substantiate their claims of a hostile work environment with “reasonable specifics,” which it defined to include “dates and names of the individuals involved.” 1.JA.41. Applying this standard, the court noted that Parks “cannot identify the individual who placed the sign depicting the word ‘n****r’ on his locker” (though it did note “the act was clearly designed to be anonymous”), did not specify which LP employees or managers “displayed a confederate flag, offensive bumper sticker, or told a racist joke,” and “could not provide approximate dates, beyond an estimate of the year, for all but one of the incidents he described.” 1.JA.42-43. Limiting its review to “those incidents to which Plaintiff has testified with reasonable specificity,” the court concluded that Parks offered “a series of infrequent incidents that occurred over a ten-year period that cannot rise to the ‘severe or pervasive’ level required for a hostile work environment claim.” 1.JA.44.

This focus on “reasonable specificity” incorrectly discounted or ignored much of Parks’s relevant evidence. First, the court gave almost no consideration to evidence of the continuing presence of racist graffiti and other symbols of racism Parks saw “on a daily basis.” The court described the graffiti as simply one of three uses of the word “n****r” over the course of ten years to which Parks was exposed, which it deemed insufficiently severe or pervasive. See 1.JA.43; see also 1.JA.42 (quoting Skipper’s observation that “the presence of offensive graffiti alone cannot sustain a claim for hostile work environment”). This minimizing approach draws inferences the wrong way: a reasonable jury could readily find that the graffiti had a pernicious effect. See Reeves, 530 U.S. at 150.

As the Tenth Circuit explained in Tademy v. Union Pacific Corp., 614 F.3d 1132 (10th Cir. 2008), racist “graffiti and cartoons combined with the words ‘nigger’ and ‘nigger go home’ etched on [plaintiff’s] locker are the sort of conduct that would make any reasonable person feel uncomfortable — and entirely unwelcome, to say the least — in the workplace. . . . Indeed, it is difficult to imagine a message more calculated to make an African-American feel unwelcome in the workplace.” 614 F.3d at 1145; see also McGinest, 360 F.3d at 1116 (racist graffiti is a “significant exacerbating factor[] in evaluating the severity of the racial hostility”); Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“Adding up all of the derogatory names directed at [the plaintiff] as well as all of the graffiti on the bathroom walls, and coupling that with more information about how frequently or how long the abuse endured, the court might well find that both the pervasiveness and the severity measures are high.”). As this Court has explained, the use of “nigger” is not a “mere offensive utterance”: it “is pure anathema to African-Americans.” Spriggs, 242 F.3d at 185. A reasonable jury could easily have found the constant presence of the racist graffiti a relevant factor in determining whether the workplace was objectively abusive. To discount it as simply one use of the slur “over the course of ten years,” 1.JA.43, was erroneous.

In addition, the district court gave undue weight to Parks’s inability to recall the names of those responsible for the racist symbols and the dates when they appeared. With respect to the racist graffiti, because it was done anonymously, Parks cannot be expected to know its source. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 332 (4th Cir. 2011) (evidence of anonymous harassment supported plaintiff’s hostile work environment claim). Parks did not testify specifically about when the bathroom graffiti occurred, but indicated he saw racist symbols “on a daily basis” at LP. 3.JA.500.

During his deposition, Parks admittedly could not remember the names of specific individuals who displayed a Confederate flag. 3.JA.503. But he testified that at least fifteen maintenance employees had the flag on their lunchboxes and hardhats, and that this occurred from the day he started until the day LP fired him. 3.JA.501. Although Parks could not name the individual who displayed the swastika bumper sticker on his vehicle in the company parking lot, he said that the person was a tall Caucasian with curly hair and glasses who worked in the finishing department, and that his car was a newer model silver or white Dodge Dakota. 3.JA.516-17. Such a description meets the evidentiary standard for summary judgment.

In addition, a failure to recall dates or details goes to the weight the ultimate factfinder should give to the testimony; it does not warrant the court’s refusal to consider the testimony in the first instance. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 550 (2d Cir. 2010) (plaintiff’s “ability or inability to recall details would doubtless affect the weight that would be given to her testimony,” but weighing evidence is “a matter for the factfinder at trial, not for a court considering a motion for summary judgment”); Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998) (holding inability to remember additional specifics goes to evidentiary weight, “a matter for the finder of facts”). Thus, although Parks’s failure to identify any of the more than fifteen individuals displaying the Confederate flag may ultimately impact his credibility at trial, it does not justify the district court’s failure to consider the evidence in concluding that the racism Parks experienced was “infrequent.” 1.JA.44.

The court also stated that Houpe “similarly failed to provide any specifics about the incidents he witnessed, including names and dates.” 1.JA.43. Because Parks did not testify that he was aware of Houpe’s experiences, the court refused to consider any of Houpe’s testimony in evaluating Parks’s hostile work environment claim. 1.JA.43 n.4; see also id. nn.5-6, 1.JA.47. Again, both of these conclusions constitute error. Houpe testified that he heard racial slurs “countless times” and “all the time” during his employment, including a few times when he was with Parks. 2.JA.389-92. He heard the word “coon” used as a racial slur over twenty times,^{^[4]} and saw Nazi symbols so frequently he “lost count.” 2.JA.389, 411-12. These symbols were “all over the place,” sometimes “for months at a time.” 2.JA.389, 395, 401, 403-04. Although Houpe did not work in the maintenance section with Parks, he testified that he saw “nigger” written in a maintenance bathroom, “KKK” written on a maintenance locker and on a breakroom table, and swastikas visible from the breakroom (including one visible for years). 2.JA.404-05, 407-08, 413. This was part of a general pattern: Houpe also testified that he saw swastikas and the words “nigger” and “KKK” written in graffiti more than twenty times each at LP. 2.JA.412-13. He saw a Confederate flag of some sort “[e]very day” prior to Parks’s termination, from five to ten times per day, on clothes, stickers, lockers, and license plate holders. 2.JA.415-17. The flag appeared on shirts, hard hats, caps, and t-shirts — of management as well as co-workers — and on shift carts, forklifts, and work stations. 2.JA.416-17. In short, “[i]t was everywhere.” 2.JA.417.

The court also erred in concluding that Houpe’s testimony was irrelevant to Parks’s claims. Houpe’s description of the environment at LP corroborated Parks’s account and fleshed out the details further. This Court has held repeatedly that such corroborating evidence of discriminatory comments made to others at the same location is relevant to the issue of a hostile workplace environment. See Sunbelt Rentals, 521 F.3d at 317; Jennings v. Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (Title IX case).

Finally, the district court erred in focusing on the fact that Parks “was promoted and given pay raises.” 1.JA.42 n.3, 45. As the Supreme Court has made clear, although a hostile work environment may hinder employee performance, such a result is not a required part of the plaintiff’s necessary showing: “[E]ven without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees . . . offends Title VII’s broad rule of workplace equality.” Harris, 510 U.S. at 22; see also id. at 25 (Scalia, J., concurring) (test under Title VII “is not whether work has been impaired, but whether working conditions have been discriminatorily altered”). Thus, Parks’s continued success at his job would not preclude a reasonable jury from finding that the environment was racially hostile.

III. The District Court Erroneously Held LP Could Not Be Liable for the Harassment as a Matter of Law.

The district court also erred in concluding that LP could not be liable for the alleged harassment as a matter of law. 1.JA.46-49. An employer may be liable for co-worker harassment if it was negligent in allowing the harassment to occur. Vance v. Ball State Univ., 570 U.S. 421, 445 (2013). Such negligence exists when the employer unreasonably fails to prevent the harassment or unreasonably fails to take corrective action in response to harassment it knew or should have known about. Id. at 449, 453-54. In this respect, a failure to monitor the workplace to prevent racial harassment constitutes employer negligence. Id. at 449. Once an employer has notice of harassment, it must respond with remedial action “reasonably calculated to end the harassment.” Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131-32 (4th Cir. 1995).

Here, given the evidence of LP’s inaction in the face of at least constructive knowledge of the racially hostile work environment, the employer liability issue should have gone to a jury. The district court concluded that LP responded effectively whenever Parks complained. 1.JA.48. This is only partially accurate. It is true that the specific form of harassment stopped after each such complaint (for example, after Parks complained about the skunk and the deer genitalia, his co-workers put no additional dead animals in his locker). But Parks and Houpe both testified to the prevalence of racist symbolism throughout Parks’s time at LP, 3.JA.500; 2.JA.413-17, and LP took no effective steps to address the general racially hostile work environment. In the context of this case, its response was not enough.

A reasonable jury could find that, even if Parks did not continually complain about the harassing images he saw every day, LP had constructive knowledge of the racist symbols suffusing the Roaring River facility. The symbols were clearly visible, according to Parks and Houpe, and therefore would have been obvious to LP’s supervisors. As this Court held in Ocheltree v. Scollon Productions, Inc., “An employer cannot avoid Title VII liability for coworker harassment by adopting a ‘see no evil, hear no evil’ strategy. Knowledge of harassment can be imputed to an employer if a reasonable [person], intent on complying with Title VII, would have known about the harassment.” 335 F.3d 325, 334 (4th Cir. 2003)(internal quotation marks omitted); see also Sunbelt Rentals, 521 F.3d at 320 (jury could reasonably find that an employer exposed to the hostile work environment who did nothing to correct it “was practicing something akin to willful blindness”); Tademy, 614 F.3d at 1148 (“[T]here is a triable issue as to whether the recurrence of racist graffiti was the sort of harassment that in the exercise of reasonable care should have been discovered by management-level employees.”); Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (holding employer has notice of harassment when someone with power to stop it or responsibility to report it learns of harassing conduct).

Although the district court correctly observed that Parks’s evidence of racial harassment concerned the acts of his co-workers rather than his supervisors, a supervisor who witnessed the panoply of racist symbols Parks and Houpe described would have been required to put a stop to it under the terms of LP’s Anti-Harassment Policy, even absent a specific complaint from Parks or a co-worker. See 1.JA.109 (“Managers and supervisors are accountable for the prevention and correction of harassment occurrences in their areas of responsibility.”); Tademy, 614 F.3d at 1147 (even if no employee has filed a complaint, a “negligence standard” applies under which “highly pervasive harassment should, in the exercise of reasonable care, be discovered by management-level employees” (internal quotation marks omitted)).

Eliminating the harassment was certainly within LP’s power: Houpe testified that soon after LP terminated Parks, it brought in a new manager who successfully prioritized eliminating racist symbols at the facility. 2.JA.396-97, 417-20; see also Tademy, 614 F.3d at 1149 (citing cases outlining effective measures of rooting out harassing workplace graffiti).

In finding that LP could not be held responsible for the harassment, the district court also emphasized that the company had anti-harassment policies in place. 1.JA.34, 47. But the existence of a policy alone is not enough to escape liability. As this Court has explained, “[M]ere promulgation of such [an anti-harassment] policy may well fail to satisfy the employer’s burden. The employer must act reasonably, and thus any policy adopted by the employer must be both reasonably designed and reasonably effectual.” Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999); see also Sunbelt Rentals, 521 F.3d at 320 (an anti-harassment policy “must be effective in order to have meaningful value”); Jackson v. Quanex Corp., 191 F.3d 647, 664 (6th Cir. 1999) (noting that “the mere fact of a quick response to reports of racially offensive conduct,” alone, does not shield an employer from liability).

LP’s failure to take effective measures to end the racially hostile work environment was not merely ineffectual: it also communicated to its employees that such harassment was permissible in the workplace, undercutting any contrary assurances in LP’s written policies. As the Tenth Circuit explained in a case involving similar facts, the appearance and persistence of explicitly racist graffiti at a work site “may well reveal more about what is acceptable in the work environment than any EEO manuals, which may or may not be distributed to or read by employees. . . . These statements not only communicated to minority employees that were not welcome in the workplace but also sent a message that overt expressions of racism would not be taken seriously. Both of these signals are antithetical to [federal antidiscrimination laws] and contribute to a hostile work environment.” Tademy, 614 F.3d at 1148-49.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Attorney

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B). This brief contains 6,342 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word for Office 365 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Fifth Floor

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: December 27, 2019

[1] The EEOC takes no position on any other issue presented in this appeal.

[2] As used in this brief, “X.JA.YY” refers to Volume X, page YY of the parties’ Joint Appendix.

[3] Although the cases cited in this paragraph involved harassment because of sex rather than race, the analysis is the same for both. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 25-26 (1993) (Ginsburg, J., concurring).

[4] The district court disregarded Houpe’s testimony about the word “coon” because, it stated, “Plaintiff did not testify that he heard the word ‘coon’ used at LP.” 1.JA.43 n.5. This conclusion is misleading. Plaintiff did not deny that he heard the word “coon” — he was simply never asked about it during his deposition. In addition, he may in fact have testified about being called a “coon” directly. Parks’s deposition transcript states that a co-worker responded to Parks’s question about his car by saying, “I’m tired of you eons always thinking you can be in somebody else’s business. . . . I’m tired of y’all eons.” 3.JA.520. In context, it appears that “coons” was accidentally transcribed as “eons.”