_______________________________________________________ Appeal No. 08-1181 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. CENTRAL WHOLESALERS, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Peter J. Messitte, Presiding _______________________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .iii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM . . . . . . . . . . . . . . . . . . 1 A. The Record Evidence Creates a Genuine Issue as to Whether the Harassment Was "Because Of" Medley's Sex and Race . . . . . . . . . . . . 2 B. The Record Evidence Established a Jury Question as to Whether the Harassment Was Severe or Pervasive Enough to Create a Hostile Work Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 C. The Record Evidence Would Permit a Reasonable Jury to Find that CW Failed to Take Adequate Corrective Action to Stop the Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . C-2 TABLE OF AUTHORITIES Cases Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . .9 Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 3 Bailey v. USFHolland, Inc., 526 F.3d 880 (6th Cir. 2008) . . . . . . . . . . . . . . . . . 21, 22 Carter v. Ball, 33 F.3d 450 (4th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 8 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000) . . . . . . . . . . . . . . . . . .3, 15 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008) . . . . . . . . . . . . . . . . . 20, 22 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) . . . . . . . . . . . . . . . . . . 20 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . 18 Patterson v. County of Fairfax, 2000 WL 655984 (4th Cir. May 18, 2000) . . . . . . . . . . . . . . .3 Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . 6 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . 7, 13 Reinhold v. Va., 135 F.3d 920 (4th Cir.), superseded on other grounds, 151 F.3d 172 (4th Cir. 1998) . . . . . . . . . . . . . . . . . . . .3 Rose v. Son's Quality Food, 2006 WL 173690 (D. Md. Jan. 25, 2006) . . . . . . . . . . . . . . . 3 Skipper v. Giant Foods, Inc., 2003 WL 21350730 (4th Cir. June 11, 2003) . . . . . . . . . . . . . 8 Tademy v. Union Pac. Corp., 520 F.3d 1149 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . 17 White v. BFI Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004) . . . . . . . . . . . . . . . . . .9, 21 Rules Fed. R. App. P. 32(a)(5) . . . . . . . . . . . .C-1 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . .C-1 Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . C-1 ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM. In its opening brief, the Commission explained that the evidence the EEOC adduced at summary judgment was sufficient to create a genuine issue as to whether charging party LaTonya Medley was subjected to harassment that was unwelcome, because of her sex and/or race, and subjectively and objectively severe or pervasive enough to create a hostile or abusive working environment. The Commission also produced enough proof to enable a reasonable fact finder to conclude that CW knew about and failed to stop this harassment, and thus was liable for it. In its response, CW does not challenge that the harassment was unwelcome, or that Medley subjectively perceived it to be offensive. CW seems to suggest that some of the conduct in question was not "because of" Medley's sex and race. CW also argues that the harassment simply was not egregious enough to be actionable. Finally, CW alleges that it took adequate remedial action to escape liability for this co-worker-created hostile work environment. In advancing these positions, CW argues that the "material facts in this case are undisputed, and there is no evidence to raise a jury question on any of the EEOC's claims." CWBr.29. However, throughout its brief, CW, much like the district court, overlooks well-established summary judgment principles. CW mischaracterizes or ignores pertinent record evidence, draws all inferences in its own favor, makes impermissible credibility determinations, and misconstrues or misapplies governing law. Each of the arguments CW advances in support of affirmance is unavailing. A. The Record Evidence Creates a Genuine Issue as to Whether the Harassment Was "Because Of" Medley's Sex and Race. CW fundamentally misapprehends the EEOC's claim by suggesting repeatedly that the Commission brought a harassment case based on conduct of a sexual nature. CWBr.3,5,29,31,35. CW emphasizes, for example, that neither Tony nor Mike nor Doug ever "engaged in, or attempted to engage in, any inappropriate physical touching or contact with Medley" or "directed a sexual advance towards her." CWBr.5,29. This is irrelevant. The Commission is not alleging that Medley was propositioned inappropriately or required to submit to sexual advances to keep her job. Rather, the gist of the Commission's claim is that Medley's co-workers subjected her to comments and conduct that reflected antipathy towards her gender. Tony, Mike, and Doug, through their words and deeds, forced Medley to work in an atmosphere infused with anti-female bias. As explained in the EEOC's opening brief, EEOCBr.6-7,34-36, Tony and Mike used the word "bitch" "on a daily basis" and/or whenever referring to a female. Doug also referred to women by the "B" word. Mike displayed a poster, calendars, and magazines and played screensavers and streaming video portraying women pornographically, depictions a jury could conclude were particularly demeaning and derogatory for women. This Court has recognized that a reasonable jury could conclude that this was gender-based harassment that violates Title VII's prohibition on sex discrimination. See, e.g., Patterson v. County of Fairfax, 2000 WL 655984 (4th Cir. May 18, 2000), at *4 (indicating that the term "dumb b***" was gender-based). No "sexual" harassment is required. See Conner v. Schrader- Bridgeport Int'l, Inc., 227 F.3d 179, 192, 192 n.16 (4th Cir. 2000) (recognizing that "[a]ctionable discrimination includes conduct 'because of' the victim's gender, which is broader than conduct of a 'sexual nature'"). At one point in its brief, CW indicates that the use of epithets like "black b***" is "racially neutral" conduct and "'not the sort of invective characteristic of a racially hostile environment.'" CWBr.40 (quoting Rose v. Son's Quality Food, 2006 WL 173690 (D. Md. Jan. 25, 2006)). This position is frivolous. There can be no question that a reasonable jury could conclude that the use of the modifier "black" in conjunction with an undeniably derogatory term such as the "B" word constitutes both race-based and sex-based conduct. Cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (even without any clear racial modifier, the use of a pejorative term like "boy" alone could evince the speaker's racial bias); Reinhold v. Va., 135 F.3d 920, 927 (4th Cir.), superseded on other grounds, 151 F.3d 172 (4th Cir. 1998) (finding "white b***" is a "racially derogatory statement[]"). B. The Record Evidence Established a Jury Question as to Whether the Harassment Was Severe or Pervasive Enough to Create a Hostile Work Environment. As the EEOC pointed out in its opening brief, EEOCBr.37-39, the applicable standard for determining whether harassment is actionable is whether it is "severe or pervasive" enough to alter the terms and conditions of the victim's employment. CW does not dispute this. CWBr.35. CW appears to argue, nonetheless, that because the harassment in question only occurred over a two-month timeframe, it was not serious enough to violate Title VII. CWBr.29. This is not the law. There is no precedent requiring harassment to occur over any particular period to be actionable. Here, Medley was forced to endure anti-female and anti-black hostility and abuse virtually every day, day after day, for over two months. A reasonable jury could find that this harassment was sufficiently severe and/or pervasive to alter the conditions of Medley's employment while she worked in Inside Sales. CW distorts the record evidence in downplaying the severity of the harassment to which Medley was subjected. It dismisses the Commission's sex- based harassment claim as involving merely "profanity, a screensaver and [a] mini- calendar of partially undressed women." CWBr.38. This mischaracterizes the extent and minimizes the cumulative weight of the comments and conduct at issue. For example, CW notes, CWBr.4,29,35, that Medley's "sole" allegation related to three co-workers' use of the "B" word - as if the fact that multiple colleagues uttered this sex-based slur, even on a daily basis, is somehow innocuous. But as the EEOC pointed out in its opening brief, EEOCBr.34-35,41, this Court and others plainly have held otherwise. CW also discounts the presence of pornography in Medley's workplace. CW asserts, for instance, CWBr.4, that Medley only "heard" Mike playing pornography on his computer "on two occasions." While being required to watch pornography would also constitute egregious harassment, a reasonable jury could find that being forced to listen to it being played in an adjacent cubicle by a co- worker who also daily referred to women as "b****s" intensified the anti-female environment in Inside Sales. EEOCBr.44-45. In addition, while Medley described two specific occasions on which she heard the pornography, she never stated that those were the only times she heard it. (JA93-97,134) Rather, she testified generally that even after Mike had his internet access taken away, he "started up" looking at pornography in his cubicle again. (JA134) Similarly, contrary to CW's descriptions, CWBr.4, the screensaver Mike displayed did not merely depict one "partially clad woman in a bathing suit." The screensaver (and Mike's Playboy calendar and magazines) featured numerous partially-naked females exposing their nipples and vaginas. (JA101-03,106,132- 33). Medley subjectively felt that these numerous images were "degrading to women." EEOCBr.6-7. As the EEOC explained in its opening brief, EEOCBr.44- 45, a reasonable jury could find that any woman in Medley's position (i.e., the only woman Inside Sales representative) would likewise objectively feel that this pornography was extremely derogatory to women. See, e.g., Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1146-47 (11th Cir. 2008) ("Reeves's exposure to the pornographic image on her co-worker's computer also contributed to the objectively humiliating environment."). As for the Commission's racial harassment claim, CW exerts much effort attempting to convince this Court that it is unlikely that Medley actually was subjected to racial epithets like the "N" word. For example, CW highlights a memorandum to-the-file prepared by Denicoff and Baxley stating that Medley "acknowledged that the profanity never includes slurs against a person's race, religion, etc." and that she "never heard any such slurs." CWBr.16,42,49,51. However, Medley specifically testified that she did not say any such thing during this meeting with Denicoff and Baxley. (JA153,155-56). A reasonable jury obviously could believe her. Moreover, Medley testified repeatedly that racial slurs were used and that she did hear them. She stated that after she complained about her co-workers' profanity, "it increased with added racial jokes and ethnic slurs." (JA411) She said employees from the CW warehouse made racial comments or slurs "pretty often." (JA33-34) She testified that the "N" word, specifically, was used within Inside Sales. (JA79-80) She said Tony used racial terms, including the "N" word, "quite often" and "whenever he was talking about the people who worked in the warehouse." (JA69,75,78) She stated she was "certain" Tony used the "N" word. (JA77) In fact, Medley said, he used it "pretty much every day" if not "every day." (JA77-78) She also testified that Mike and Doug made racial comments and slurs including the "N" word, too, and described in detail when and how Doug used it. (JA32,69,79-80). Given this evidence, a reasonable jury could find that Medley's alleged assertion (i.e., that she never heard sexist or racist slurs) was manufactured by CW management and included in the memo as a post hoc defense. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (at summary judgment, the court "must disregard all evidence favorable to the moving party that the jury is not required to believe"; it need only credit "evidence supporting the moving party that is uncontradicted and unimpeached" and only "to the extent that that evidence comes from disinterested witnesses" (internal quotation marks omitted) (emphases added)). CW also argues that the EEOC failed to substantiate its racial harassment claim with "reasonable specifics." CWBr.8,30,32,39,42,43. Quite the contrary, the EEOC proffered ample evidence describing the harassment in question. For example, as CW acknowledges in its brief, CWBr.18-20, the EEOC provided a lengthy account about Medley's altercation with DaBay. EEOCBr.18-25. The Commission also proffered evidence describing in detail the nooses present at CW. EEOCBr.5-6. Medley testified in depth about her co-workers' use of the "N" (and the "B") word. EEOCBr.3-5. It is unclear how much more specific CW expects Medley to be in describing this co-worker harassment. Indeed, it is unclear just what else Medley could say, or why as a matter of law or policy she should have to provide any greater detail. The evidence reveals the identity of the harassers, the nature of their comments and conduct, the targets of their objectionable behavior, and its frequency. Nothing in this Court's precedent requires any greater specificity.<1> We are aware of no case in which this Court has held that a victim of harassment has to provide a date, time, and precise location for each and every incident involving a racial epithet. To the contrary, this Court previously has recognized the existence of a racially hostile work environment based on just the sort of evidence the EEOC proffered here. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 297 (4th Cir. 2004) (reversing summary judgment where black plaintiff showed repeated use of epithets like "boy, jigaboo, nigger, porch monkey, Mighty Joe Young," and "Zulu warrior"); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129, 1131 (4th Cir. 1995) (reversing summary judgment where for six months and "almost daily" an Iranian plaintiff was called "the local terrorist," a "camel jockey," "the ayatollah," and "the Emir of Waldorf"). Accordingly, this Court should decline CW's invitation to adopt a heightened "specificity" requirement in this case. CW also tries to convince this Court that there is no evidence that Medley was subjected to racial slurs by arguing that Medley never alleged Tony, Mike, or Doug ever directed the slurs at her. CWBr.41,41 n.28. Of course, DaBay certainly did target Medley with racist and sexist epithets. In addition, as the EEOC pointed out in its opening brief, EEOCBr.42-43, Tony, Mike, and Doug did not have to direct their racist or sexist behavior at Medley for her to become a victim of unlawful harassment. A jury could reasonably find that having to hear the "N" word and the "B" word on a daily basis was enough to transform this anti-black and anti-female environment into hostile and abusive workplace for Medley as a black woman. CW also stresses that "contemporaneous documentation does not reflect that Medley complained about racial slurs," specifically, and that she never complained about racial slurs in writing. CWBr.13 n.10,30,41,50-51. However, the evidence is clear that Medley complained about the epithets verbally - contemporaneously and repeatedly - to her supervisor, human resources, and the company President and Vice President. As the EEOC explained in its opening brief, EEOCBr.9- 10,48-49, Medley complained to Wright "a number of times" about "all of it" - including that people in Inside Sales were using the "N" word. (JA35,80-81,83) She definitely complained about the racial slurs "a number of times" to Denicoff, as well. (JA36) She was sure she informed Denicoff that Tony, Mike, and Doug were using the "N" word, in particular. (JA36-39,82-83) She raised the issue of racial slurs in meetings with Beall and Denicoff. (JA143-45) Given this evidence, a reasonably jury could find that Medley did complain about the use of racial epithets. The fact that Medley never listed specific racial slurs in her e-mail complaints in no way suggests that Medley must have been lying about fact that they were used, or that she viewed them as innocuous. To the contrary, a reasonable jury could find that she decided not to write the "N" word down in her written complaints because that singular epithet in particular made her so uncomfortable. (JA35,40,76) CW claims that the only racial harassment Medley testified about was the "use of profanity at work." CWBr.5-6,30,40 (emphasis in original)). CW argues "it can hardly be doubted that mere profanity - even if excessive - as a matter of law does not establish a racially hostile work environment." CWBr.40. We need not disagree. The EEOC's claim is not based on the use of non-racial profanity at all. CW alleges that Medley's testimony about the use of racial slurs is undermined because Medley "labels all profanity as a racial slur." CWBr.6 (emphasis in original); id. at 30,33-34,40-41,43,51. CW is improperly conflating Medley's remarks on her perception of "profanity" generally with her unambiguous testimony about her co-workers' use of racial comments, specifically. Simply because the definition of "profanity" includes non-racially- specific curse words does not mean that "profanity" cannot also include the use of racial slurs, or that it did not in this case. (JA60) In fact, Medley specifically testified that after she complained about the "profanity" in Inside Sales, it "increased with added racial jokes and ethnic slurs." (JA411 (emphasis added)) As already noted, she also unambiguously testified that her co-workers frequently used the "N" word. Thus, even if a reasonable jury could believe that Medley erroneously considered certain race-neutral profane terms to be racial slurs, it could also easily conclude that Medley was forced to hear her co-workers utter the most odious racial epithet - the "N" word - virtually every day. CW also downplays the severity of DaBay's actions on November 10, 2004. CW points out that DaBay denied threatening Medley in any way. CWBr.23. However, DaBay himself testified that Medley was scared of him, and that her reaction to his sex-based and race-based attack was to "shrink away." (JA307) Denicoff admitted that DaBay's statements on this point are inconsistent. (JA233) CW also makes much of the fact that neither Medley nor her attorney ever contemporaneously complained that DaBay called her the "N" word or any other racial slur, suggesting she must have manufactured this allegation after-the-fact. CWBr.19-20,22,25,27,30,51-52 n.37. However, there is ample evidence to allow the jury to conclude that DaBay did indeed use the "N" word on November 10, 2004. Medley testified in her deposition that DaBay "was constantly calling her the N word" that day (i.e., called her a "n***," a "black n***," and a "black stupid n***"). (JA39-40,47) She explained that she did not use the "N" word in describing the DaBay incident in her EEOC statement because "I didn't feel comfortable in writing the word down." (JA40) A reasonable jury certainly could readily accept Medley's utterly plausible explanation on this point. In addition to Medley's clear testimony, the evidence that DaBay called her the "N" word includes contemporaneous and near-contemporaneous corroboration of this fact. For example, the letter Medley's attorney sent to CW two days after the incident emphasized that Medley was the only African American in Inside Sales, that "her fellow employees were all white males, as is Tom DaBay," and that Tony and DaBay "openly and publicly display[ed] a doll with a noose around its neck." (JA258) These facts would not have been relevant if Medley's attorney had not been intending to alert CW that Medley was the victim of racial harassment. The letter also states that DaBay "ranted and raved against her, using any and all vulgarities and curses available to him." (JA258) A jury could find that, read in context with the other portions of the letter expressing concerns about race-specific mistreatment, the phrase "any and all vulgarities and curses" included racial slurs like the "N" word. In addition, a few weeks later, Medley's friend Chris Haussmann informed Denicoff and Baxley that Medley had recently told Haussmann that DaBay called her a "fucking n***." (JA275,316) Ignoring all this contrary evidence, CW insinuates that Medley simply must have been making up the allegation that DaBay used the "N" word. Essentially, CW is urging this Court to construe the evidence in the light least favorable to the EEOC (the nonmovant). Of course at summary judgment, this is improper. The jury should have been allowed to evaluate the evidence and to assess Medley's credibility on this point. Cf. Reeves, 533 U.S. at 151 (the court at summary judgment must "give credence to the evidence favoring the nonmovant"). Indeed, at the trial level, CW recognized as much. In its summary judgment brief, CW conceded for purposes of summary judgment that DaBay had used the "N" word against Medley that day. R.27 at 17 n.64. CW's suggestion on appeal that Medley has "contradicted" herself in describing the DaBay incident, CWBr.20 n.14, thus itself contradicts CW's prior statements on the matter.<2> In any event, CW acknowledges that, according to Medley, DaBay called her a "stupid black b***," a "b***," and/or a "dumb b***" numerous times that day. CWBr.19,19-20 n.19,43. CW also recognizes that Medley told Wright that DaBay had called her a "fucking b***." CWBr.22. This evidence alone demonstrates that DaBay unleashed an undeniably sexist and racist diatribe on Medley. CW attempts to discount this evidence by arguing that the one racist slur Medley contemporaneously complained about ("black stupid b***") represented a "single, isolated incident[]" that on its own could not constitute actionable harassment. CWBr.43-45. In making this argument, however, CW obviously is ignoring the abundance of other evidence the Commission proffered suggesting that the use of epithets on November 10, 2004 was anything but an "isolated allegation," CWBr.45. A reasonable fact finder could conclude that DaBay's comments and conduct, when considered in conjunction with all the other abuse Medley had already endured, constituted actionable race-based and sex-based harassment. CW errs in divorcing DaBay's actions from the rest of the harassment in question to conclude no Title VII violation occurred. See, e.g., Conner, 227 F.3d at 193-94 (faulting a district court for "disaggregating isolated incidents from the whole context of all related events" contrary to the prevailing "totality of the circumstances" test for analyzing hostile work environment claims). The jury also could disbelieve Denicoff's assertion that "[i]n no case does anyone say that [DaBay] used language that is derogatory towards her race, religion or sex," CWBr.24. Denicoff made this statement in a file memo dated November 12, 2004. (JA267) However, another of Denicoff's file memos dated November 11, 2004, states that DaBay told Wright that day that Medley was a "stupid b***" (JA260) - language that is obviously "derogatory towards her sex." The jury could also refuse to credit Nedd's testimony that DaBay "did not use any language he would consider sexually or racially harassing," CWBr.23,25, particularly since Medley testified that Nedd was "standing right there" when DaBay called her the "N" word (JA41).<3> Further, the fact that others (such as Nedd, Mario Bradshaw, or Chris Haussmann, CWBr.25-29) disputed or disbelieved Medley's account simply highlights that this case should not have been resolved at summary judgment. The fact finder could conclude that current CW employees who provided statements supportive of CW's case were dissembling or equivocating to protect their employer (e.g., maybe Nedd was covering for his boss DaBay ).<4> The jury should have been allowed to assess witness demeanor and credibility and determine the ultimate truth of what happened that day. The district court erred in usurping the fact finder's role in this regard. CW likewise discounts the significance of the presence of nooses in the CW workplace. CW asserts "there is no evidence that either Monaghan or DaBay intended to attach any racial meaning or message to the doll." CWBr.8. However, a fact finder could quite reasonably conclude that the nooses spoke for themselves. Contrary to CW's assertions, CWBr.8-9, the fact that Nedd, DaBay's black assistant, was not troubled by the dolls is hardly dispositive. Medley found them to be racist and offensive. EEOCBr.5. And given the nooses' potent racial significance, EEOCBr.45-46, a jury could find that a reasonable person in Medley's shoes - that is, a black woman whose white male co-worker uttered the "N" word pretty much every day and also happened to display a doll with a noose around its neck prominently in his office - objectively would have considered this to be an obvious and severe act of racial harassment. See, e.g., Tademy v. Union Pac. Corp., 520 F.3d 1149, 1163 (10th Cir. 2008) ("We acknowledge that the placement of the noose may have involved no racist intent at all" but "while there may be legitimate arguments on both sides, these arguments should take place before a jury that will have the opportunity to evaluate the evidence, demeanor, and candor of witnesses."). CW cites numerous cases in an attempt to establish that the race-based and sex-based harassment at issue was not egregious enough to violate Title VII. CWBr.36-38,43-45. However, no decision CW cites establishes as a matter of law that there is, in this case, no genuine issue as to whether Medley endured severe and/or pervasive race-based and sex-based harassment. This is a quintessential jury question, EEOCBr.46-47, and the district court here erred in taking it away from the fact finder. To affirm on this issue, this Court would have to conclude that no reasonable jury could find that the daily use of sexist and racist epithets like "bitch" and "nigger" (along with all the other conduct in question) simply is not sufficiently serious to be precluded by Title VII. C. The Record Evidence Would Permit a Reasonable Jury to Find that CW Failed to Take Adequate Corrective Action to Stop the Harassment. CW contends that it conducted prompt investigations and took appropriate corrective action in response to Medley's complaints. CWBr.9 n.7,30. Yet, as explained in detail in the Commission's opening brief, EEOCBr.47,49-56, the record reveals that CW's response was patently ineffective in stopping the known harassment at CW. That is what is legally dispositive in this case. CW appears to argue that it did not have sufficient notice of the racial harassment here. As already discussed, CW alleges that Medley did not complain contemporaneously about racial epithets in writing. CWBr.7,19 n.14, 30,50. This is beside the point. This Court's case law contains no such "written notice" requirement. To the contrary, this Court has held that an "employer cannot avoid Title VII liability for coworker harassment by adopting a 'see no evil, hear no evil' strategy." Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003).<5> As noted above, Medley repeatedly complained about the use of the "N" word and other racial slurs verbally.<6> Moreover, CW on appeal states that "[e]ach time Medley complained about a racially hostile environment, Central immediately investigated and took appropriate action." CWBr.50 (emphasis added). Thus, CW essentially acknowledges that Medley complained about racial harassment repeatedly to no avail. That serves as sufficient notice of co-worker harassment. EEOCBr.49. This concession by CW - that Medley was forced to lodge multiple complaints about racial harassment - undermines its entire defense to liability. If CW had actually taken effective remedial action in response to the harassment, Medley would not have had to complain so many times. Thus, despite CW's claim that it took prompt and adequate preventive and corrective action, a reasonable jury could conclude that it did not. CW did little to prevent the harassment that occurred here. CW points out that it had an anti-harassment policy in place, as if this alone should shield it from liability. See CWBr.2-3,47 n.35. However, this Court has ruled that there is no per se "anti-harassment policy defense" to employer liability for co-worker harassment. See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 320 (4th Cir. 2008) ("The mere existence of an anti-harassment policy does not allow [a defendant] to escape liability."); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983) (an employer on notice of harassment "must do more than indicate the existence of an official policy against such harassment"). This should be particularly true where, as here, the aggrieved employee followed the policy by reporting harassment to supervisors and human resources to no avail. Notably, Medley complained about violations of this very policy in two separate written complaints to no effect. (JA172,195) On paper, CW's policy charged "[a]ll managers and supervisors" with "preventing and eliminating discrimination and harassment in the Company." (JA18) None of the managers or supervisors did so here. The policy stated that "[a]ny supervisor or manager receiving a report or complaint of discrimination or harassment must report it immediately" up-the-chain. (JA18 (emphasis added)) But Wright repeatedly failed in this regard (perhaps not surprising, as CW neglected to give Wright as a new manager any training on her obligations under the policy (JA391)). The policy pledged that the company would investigate all harassment complaints "promptly." (JA19) However, CW conducted no investigation in response to many of Medley's initial verbal complaints. CW acknowledges that Medley complained about the pornography and profanity in Inside Sales immediately. CWBr.10 (noting Medley complained "soon after she started in her new position). As the EEOC explained in its opening brief, EEOCBr.8-11,50-53, CW ignored these initial verbal complaints (e.g., Wright simply "didn't know how to handle it" and Denicoff "shrugg[ed] off" Medley's concerns and told her she should expect that sort of behavior when working with a "bunch of guys" (JA34-35,172,411)). Finally, CW's policy provided that any individual found to have engaged in harassment would be subject to disciplinary action. (JA19) But CW never once imposed written discipline on Tony, Mike, Doug, or DaBay or penalized them in any other meaningful way. On these facts, the fact that CW had an anti-harassment policy does not as a matter of law shield it from liability. Cf. White, 375 F.3d at 299-300 (ruling "a jury could rationally conclude" that a company unreasonably failed to correct offending behavior "by neglecting to enforce the policy"); Bailey v. USFHolland, Inc., 526 F.3d 880, 887 (6th Cir. 2008) (finding "[a] harassment policy itself means nothing without enforcement"). A reasonable jury could find that in addition to failing to prevent harassment, CW also failed to take adequate corrective measures after-the-fact. CW makes much of the fact that it would always meet with Medley whenever she complained, and that it "investigated" her allegations. CWBr.47-48,49,50. But merely meeting with a victim or conducting a cursory investigation of a complaint is not the same as rectifying the situation and eliminating the harassment. An employer can still be liable for co-worker harassment if it "investigates" and takes certain steps in response to harassment complaints but the harassment nevertheless continues. See Sunbelt Rentals, 521 F.3d at 320 ("Admittedly there were corrective steps undertaken by Sunbelt" such as investigations into the victim's written complaint and warnings given to co-workers, but because they "failed to take additional action that a rational juror might consider reasonably calculated to end the harassment" summary judgment as to liability was inappropriate); see also USFHolland, 526 F.3d at 887 (despite numerous examples of corrective action, including conducting employee meetings to respond to plaintiffs' complaints and even disciplining responsible employees, defendant could not escape liability). Here, despite Medley's numerous complaints and the actions CW took in response, Medley testified "they were still doing it"; indeed, the harassment even "escalated." (JA77-78,81-82,94-96) To be sure, CW did "address issues" in meetings with Medley, CWBr.16,52, by promising to resolve the ongoing problem in Inside Sales. However, in the end, these promises proved empty. For instance, CW argues that "Central made clear that 'screensavers with explicit photography and/or viewing pornography at work was unacceptable.'" CWBr.12 (emphasis in original); id. at 49 (noting Denicoff told Mike that looking at pornography at work was "outrageous" and "won't be tolerated"). However, CW misrepresents the record in claiming that Mike's screensaver was "immediately" removed. CWBr.4 n.4,48. In fact, it took over a week and a half for CW to remove it. Likewise, CW distorts the evidence in asserting that CW "does not allow [pornographic] calendars and has them removed when we become aware of them." CWBr.15,49. CW acknowledges that Wright was aware of Mike's hidden calendar featuring partially-nude women, and yet did nothing about it. CWBr.14. Indeed, the Playboy magazines, calendar, and poster were not removed until on or around October 6, 2004 - weeks after Medley first complained about it. Similarly, while CW checked to see if Mike had been viewing pornographic websites from his work computer and took away his internet access (and even though Denicoff warned Mike that looking at pornography at work was "outrageous"), CWBr.11-12, Mike continued to play pornography in his cubicle and Medley continued to overhear it. CW did declare that racist and sexist slurs "would never be tolerated." CWBr.15,17,49-50,51. However, this purported "zero tolerance" policy proved utterly ineffective. While Denicoff and Wright had a "pretty tough" meeting with Tony to discuss his cursing and pornography in the work place and Denicoff believed at the time that Tony "immediately got the message," CWBr.13, Denicoff also conceded that in fact Tony, as well as Mike and Doug, "clearly didn't get it." (JA220,229). Even though Denicoff met with the Inside Sales team and warned them about the use of gender and racial slurs, Tony, Mike, and Doug all continued to use them. They "chose to go against [Denicoff's] wishes" and "broke [the] policy." (JA228-29) They were never given any sort of written reprimands for doing so. Progressive discipline for repeated infractions never was imposed<7>. CW tries to convince this Court that Medley nonetheless was satisfied with CW's responses to her complaints. See CWBr.3 n.1,13,15-16,42,48,51. Medley's subjective faith in CW's intentions is not legally dispositive on whether CW met its legal obligations to prevent and eliminate the harassment in question. In any event, CW's characterizations of Medley's testimony on this point are incomplete and misleading. For instance, it is entirely unremarkable that Medley "shook hands" with Mike at one point, CWBr.12, and noted "how friendly" everyone had been to her, CWBr.16. Medley repeatedly tried to be a team player, to placate her co-workers, to preserve her working relationships, and to avoid being seen as a chronic complainer. (JA23,99-100,172) This certainly should not be held against her; it hardly is proof that she felt CW's response to her harassment complaints was adequate and effective. While Medley did testify that Denicoff had her "best interests at heart," CWBr.13,49, Medley was referring to Denicoff's offer to transfer her to another department (i.e., she was not commenting on any remedial actions he took in response to her complaints about harassment). (JA140) Even though Medley did state that she was "very satisfied" with the "conversation" she had with Denicoff and Beall after she filed her first written complaint, CWBr.13,42,49, it later became clear that despite their verbal assurances, these CW executives were not actually going to halt the harassment in Inside Sales, as Medley was forced to complain again (and again). She even told Denicoff and Baxley that they had done nothing in response to her first complaint. (JA249) And even though Medley expressed optimism after meeting with Denicoff and Baxley after her second written complaint - while she was "happy" with the steps they pledged to take and felt "comfortable" that "the things that were going on with Mike would actually stop," CWBr.15-16,49 - she said the "comfort" she described was only "when we had that meeting." (JA156-57) Critically, after the meeting, the mistreatment continued. Similarly, while Medley may have expressed confidence that Denicoff and Baxley would have "addressed" her altercation with DaBay if they had been at CW that day, CWBr.52, neither they nor anyone else at CW prevented the incident from occurring. No one stepped in during the altercation to stop DaBay's abuse either. Wright even laughed about it afterwards. The fact that Medley never returned to CW obviously demonstrates she eventually lost all hope that CW management would remedy the situation after-the-fact. CW alleges that it "conducted a thorough investigation into her complaints against DaBay." CWBr.22. Once again, a reasonable jury could find otherwise. While CW interviewed DaBay about the altercation, it never attempted to contact Medley to get her side of the story. Any "investigation" into alleged harassment can hardly be considered complete if it does not even include interviewing the only victim. Denicoff allegedly "would have liked to have spoken to LaTonya" but because "she did not show up for work as promised for two days and did not call or email, he had not had the opportunity to speak with her." CWBr.24. But a reasonable jury could conclude that this explanation rings hollow. Medley had e- mailed Denicoff. Neither Denicoff nor anyone else at CW ever responded. CW argues that Medley effectively deprived it of "a chance to complete its investigation and take corrective measures" by resigning. CWBr.30,3 n.1,52. But of course CW had every chance to complete its investigation and effectively rectify the situation. If Denicoff had really wanted to reach Medley, all he (or anyone else at CW) had to do was call or e-mail her. In fact, she was anxiously awaiting some response, any response, from CW so that she could be sure it would be safe enough for her to go back to work. (JA49-51,53,163-64) Thus, in faulting Medley for resigning, CW gets it backwards. The burden was on CW to take appropriate effective remedial action. Wright knew, as CW emphasizes in its brief, CWBr.20,23, that Medley initially had intended to return to work the next day. The fact that she did not show up that day (or the next) should have alerted CW that something might have been seriously wrong with her. The letter from Medley's attorney stating that Medley had been threatened and frightened also served as a warning that CW should have reached out to make sure Medley was alright. Instead, CW used Medley's resignation as an excuse to curtail its investigation and avoid disciplining DaBay. Denicoff actually stated that because Medley resigned there was no reason even "to consider" any disciplinary action. (JA267-68) Denicoff also asserted that "[i]n no case does anyone say that Tom [DaBay] used language that is derogatory towards her race, religion or sex" or he would "take immediate action with Tom." CWBr.24. But, as explained above, Wright had told Denicoff that DaBay had called Medley a "stupid bitch." (JA260) He completely ignored this clearly sexist comment. As CW admits, CWBr.25, the only corrective action Denicoff took was to "ask[]" DaBay "to do his best in the future not to yell or curse." (JA267-68) Contrary to CW's contentions, CWBr.25 n.15, CW did not "sen[d]" DaBay to anger management training; DaBay testified he was "given a choice to attend" and was not "forced to go." (JA273) A reasonable jury could readily conclude that this approach - taking advantage of a scared victim's silence to make a harassment problem quickly go away - was hardly an adequate remedial response, as CW claims it was. CWBr.25. If CW really wanted to "address the incident" as it alleges, CWBr.3 n.2, it would have contacted Medley and affirmatively encouraged her to come back to work (after ensuring she would never have to work around DaBay again). The DaBay incident underscores that despite Medley's numerous complaints about ongoing harassment, the hostility and abuse continued and intensified. CW failed to prevent the harassment by Tony, Mike, and Doug from recurring and failed to prevent the DaBay incident from happening in the first place (and from escalating once it began). There is much more CW could and should have done to respond effectively to Medley's repeated pleas for help. It could have fired DaBay immediately for his outrageous conduct. It could have fired Tony, Mike, and/or Doug after Medley complained about the same offensive conduct the second, third, or fourth time. It could have demoted all of them, or reduced their pay. It could have disciplined them in writing and then imposed progressively more severe discipline with each succeeding complaint. It could have required them all to attend anti-harassment training. At the least, it could have proactively checked in with Medley daily or weekly to make sure her working environment was finally harassment-free. CW did none of these things. Instead, CW officials merely met with Medley, made empty promises (over and over), and issued idle threats about the use of slurs. A reasonable jury could find that such actions in this case were not reasonably calculated to end the harassment. Accordingly, it was improper for the district court to rule as a matter of law that CW could not be held liable here. CONCLUSION For all the foregoing reasons and those articulated in the EEOC's opening brief, the EEOC asks this Court to reverse the district court's grant of CW's motion for summary judgment on the Commission's hostile work environment claim, and remand this case for trial. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,977 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov Date: June 26, 2008 CERTIFICATE OF SERVICE I hereby certify that on June 26, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: Fred Saul Sommer Meredith Sarah Campbell Shulman, Rogers, Gandal, Pordy & Ecker, PA 11921 Rockville Pike Suite 300 Rockville, MD 20852-2743 s/ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> Each of the cases CW cites on this issue, CW Br.39, are easily distinguishable on their facts. For instance, in Skipper v. Giant Foods, Inc., 2003 WL 21350730, at **4 (4th Cir. June 11, 2003), this Court affirmed summary judgment in part because the victims "could not recall the name of even a single white employee who uttered the offensive words" and could not "allege with any specificity the content of [racist] graffiti; the frequency with which they saw it; or how it altered the terms and conditions of their employment." Similarly, in Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994), this Court faulted the plaintiff for failing to substantiate his discrimination claim with even the barest of details about dates, times, or circumstances. Here, by stark contrast, the specifics about the incidents in question (e.g., the pornography played, the nooses displayed, the precise epithets used, etc.), and their effect on Medley's working environment, have been well detailed. EEOCBr.3-25. <2> CW repeatedly insists that the EEOC is attempting to create genuine issues of material fact merely through conflicts in versions of Medley's own testimony. CWBr.29,30,34-35,43,51. Yet CW has failed to identify any actual inconsistency in Medley's testimony. The fact that Medley provided additional facts as this litigation has proceeded in no way establishes that Medley's testimony is irreconcilable or internally inconsistent. <3> Likewise, CW's assertion, CWBr.26 n.18, that the security camera video does not support Medley's version of events is unavailing, as the camera would have captured only part of the entire incident. Moreover, the tape itself is not part of the record. <4> CW criticizes the EEOC for alleging that DaBay was a CW supervisor, claiming this is mere "insinuation and speculation" that is "wholly unsupported by the record." CWBr.46 n.33. CW is flat wrong. Nedd was asked in his deposition who his "supervisor" was. Nedd replied "Tom DaBay." (JA363) Further, a file memo from Baxley, CW's Vice President of Operations, refers to DaBay as Nedd's "supervisor." (JA421). This fact is hardly "inapposite," as CW claims, CWBr.46 n.34, as a jury reasonably could conclude that DaBay's status as a CW supervisor infused his invective with a particularly threatening character. EEOCBr.43-44. <5> Here, CW's proposed "written notice" rule is also irreconcilable with its own anti-harassment policy, which only requires that victims "notify" or "promptly contact" appropriate officials about harassment. (JA18) <6> Given this evidence, a reasonable fact finder could disbelieve CW's assertion that Denicoff "was never told of the use of any racial slurs." CWBr.34. Indeed, in Medley's deposition, counsel for CW asked Medley repeatedly if she was certain she told Denicoff that Tony, Mike, and Doug were using racially-specific words including the "N" word. Medley unambiguously answered yes (numerous times). (JA36-39,82-83) In fact, a reasonable jury could conclude that if Denicoff did not have notice of racial epithets being used in Inside Sales, he would not have felt compelled to warn Inside Sales about uttering racial slurs, as CW emphasizes he did. CWBr.49-50. Similarly, CW asserts that Medley failed to mention any racial slur in her e-mail complaint about DaBay, CWBr.51, but also notes that the company's "prompt investigation" of the DaBay event "included inquiry into the use of racial slurs." Id. (emphasis in original). A reasonable fact finder could find that this would have been wholly unnecessary and unlikely if CW had not at least strongly suspected that DaBay had harassed Medley in race-specific terms. <7> CW asserts now that Mike "is not eligible for re-hire at Central because of his repeated violations of the company's EEO policy," CWBr.18,50. That is not the reason CW gave contemporaneously for allowing Mike to "resign." (JA174- 75,178-79) (In fact, Denicoff even testified that Mike chose to resign and was not forced out at all. (JA229-31)) More importantly, this assertion by CW is also a critical concession: CW has admitted that Mike repeatedly violated the company's own EEO policy without repercussion. Denicoff's warnings prove utterly ineffective. CW failed to take sufficient action to eliminate the hostile work environment Mike helped create.