_______________________________________________________ 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 _______________________________________________________ OPENING 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 STATEMENT OF JURISDICTION................................................. 1 STATEMENT OF THE ISSUES.................................................. 1 STATEMENT OF THE CASE.................................................... 2 STATEMENT OF FACTS........................................................ 3 A. Background........................................................ 3 B. District Court Decision...........................................25 SUMMARY OF ARGUMENT...................................................... 29 ARGUMENT................................................................. 31 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM.................................. 31 A. Standard of Review................................................31 B. The EEOC Adduced Enough Evidence to Allow a Reasonable Fact Finder to Conclude that Medley was Subjected to a Hostile Work Environment Because of Her Race and/or Sex................................32 C. The EEOC Produced Sufficient Proof to Permit a Reasonable Jury to Find that CW Knew About the Harassment but Failed to Take Adequate Corrective Action to Stop It.................................... 47 CONCLUSION............................................................... 56 REQUEST FOR ORAL ARGUMENT.................................................57 CERTIFICATE OF COMPLIANCE................................................C-1 CERTIFICATE OF SERVICE.................................................. C-2 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................................. 32 Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990).................................... 45 Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994)..................................... 47 Belton v. City of Charlotte, 2006 WL 1444394 (4th Cir. May 23, 2006)......................... 41 Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959 (8th Cir. 1993)................................ 41, 45 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)..............................................32 Cerros v. Steel Techs., Inc., 288 F.3d 1040 (7th Cir. 2002)................................... 42 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000)................................ 46-47 EEOC v. P.V.N.F. LLC, 487 F.3d 790 (10th Cir. 2007)............................ 34-35, 41 EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001)................................ 33, 40 EEOC v. Sunbelt Rentals, Inc., F.3d (4th Cir. 2008), 2008 WL 836409...33, 34, 43, 47, 50, 53 Forrest v. Brinker Int'l Payroll Co., LP, 511 F.3d 225 (1st Cir. 2007).................................... 34 Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007).................................... 47 Gross v. Burggraf Constr. Co., 53 F.3d 1531 (10th Cir. 1995)....................................42 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)............................. 33, 37, 38, 43, 46 Harris v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997)............................ 36, 44, 49 Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000).................................... 35 Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180 (4th Cir. 2004).....................................33 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006).......................... 47, 49, 54 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007).................................... 43 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983)................... 41, 49, 50, 55, 56 Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006).................................... 31 Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007)...........................................43 Lissau v. S. Food Serv., Inc., 159 F.3d 177 (4th Cir. 1998).....................................37 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)..............................................32 Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57 (1986).......................................33, 38, 43 Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999).....................................47 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003).................................47, 49 Oncale v. Sundownder Offshore Servs, Inc., 523 U.S. 75 (1998)...........................................38, 46 Pa. State Police v. Suders, 542 U.S. 129 (2004)...........................................43-44 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990).................................... 56 Patane v. Clark, 508 F.3d 106 (2d Cir. 2007)......................................45 Reeves v. C.H. Robinson Worldwide, Inc., F.3d (11th Cir. 2008), 2008 WL 1848882...34, 38-39, 43, 44-45 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)..........................................32, 46 Reinhold v. Va., 135 F.3d 920 (4th Cir.), superseded on other grounds, 151 F.3d 172 (4th Cir. 1998)..................................36-37 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000).................................34, 47 Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997)...................................39 Spicer v. Va. Dep't of Corr., 66 F.3d 705 (4th Cir. 1995)..................................49, 54 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001).........................36, 40, 42, 43 Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987).....................................55 Tademy v. Union Pac. Corp., F.3d (10th Cir. 2008), 2008 WL 852491................. 37, 45 Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503 (11th Cir. 1989)................................. 46 White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 2004).................................36, 41 Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996)................................ 35, 42 TABLE OF AUTHORITIES (con't) Statutes 28 U.S.C. § 1291...............1 28 U.S.C. § 1331.............. 1 28 U.S.C. § 1337............. 1 28 U.S.C. § 1343.............. 1 28 U.S.C. § 1345.............. 1 42 U.S.C. § 2000e............ 1 42 U.S.C. § 2000e-2(a)(1).....32 42 U.S.C. § 2000e-5(f)(1)......1 42 U.S.C. § 2000e-5(f)(3)......1 Rules Fed. R. Civ. P. 56(c)................32 Fed. R. App. P. 4(a)(1)(B)............1 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 STATEMENT OF JURISDICTION Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this enforcement action against Defendant- Appellee Central Wholesalers, Inc. ("CW") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). See 42 U.S.C. § 2000e-5(f)(1). The EEOC filed this lawsuit in the U.S. District Court for the District of Maryland. (R.1; JA7-11) The district court had jurisdiction over the EEOC's suit under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On December 4, 2007, the district court entered final judgment against the EEOC disposing of all claims. (R.40; JA507) The EEOC filed a timely notice of appeal on January 31, 2008. (R.52; JA508) See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the EEOC adduced enough evidence at summary judgment to allow a reasonable fact finder to conclude that charging party La Tonya Medley was subjected to a hostile and abusive working environment because of her race and/or sex. 2. Whether the EEOC proffered sufficient proof at summary judgment to permit a reasonable jury to find that CW knew about this harassment but failed to take appropriate action to prevent and stop it. STATEMENT OF THE CASE On June 29, 2006, the EEOC filed a complaint in the district court, alleging that CW violated Title VII by subjecting Medley to a race- and sex-based hostile work environment. (R.1; JA9¶7) The EEOC contended that CW also constructively discharged Medley. (R.1; JA9¶7) The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs. (JA9-10¶¶A-H) The Commission also requested a jury trial. (JA10-11) CW later filed a motion for summary judgment with respect to all claims. (R.27) The Commission responded to this motion on September 17, 2007. (R.32) The district court held a hearing on CW's summary judgment motion on December 3, 2007. (R.39; JA445) At the conclusion of this hearing, in an oral ruling from the bench, the district court granted CW's motion. (R.39; JA505) On December 4, 2007, the district court entered final judgment against the EEOC on all claims. (JA507) This appeal followed. (JA508) STATEMENT OF FACTS A. Background Central Wholesalers is a commercial maintenance supply company. (R.27 at 2) In December 2002, CW hired Medley as a representative in the Customer Service department at CW's Laurel, Maryland, facility. (JA322,328,330,410) She was given "excellent" performance evaluations, significant raises, and even bonuses. (JA257,405-08) In September 2004, Medley was transferred to CW's "Inside Sales" division. (JA410) All Inside Sales representatives reported to Lynette Wright. (JA16,384) Wright reported directly to company President Drew Denicoff. (JA16,383-84) There were seven Inside Sales representatives, including Tony Monaghan, Mike Monaghan (Tony's son), and Doug Green - all white males. (JA114-16,396- 97,411) Tony, who was Wright's assistant, had an office next to Wright's, and "one cube down" from Medley's cubicle. (JA69-70,214) Mike and Doug worked in cubicles right next to Medley's. (JA70,132) Medley was the only female and the only African American Inside Sales representative. (JA411) From the time Medley first began working in Inside Sales she was exposed to regular race-based and sex-based comments and conduct. (JA30) Medley testified that because of "some of the things that they were doing" it "was just unbearable day to day to come in to work." (JA100) Medley stated that several employees in the department "constantly" used profanity in the office. (JA411) She said it was "like they were out on the street corner somewhere" and "that is not appropriate to just have this as a regular conversation" in the work environment. (JA154) Medley said things in Inside Sales "got uncomfortable." (JA74) According to Medley: My fellow co-workers ignored all the entreaties I made to cease and desist. Then I became the object of the scorn of my fellow employees because of my insistence that the use of this language was inappropriate and unbusinesslike. Instead of ceasing from the profanity, it increased with added racial jokes and ethnic slurs. This same language was often spoken in front of customers. (JA411) Medley said employees coming through the Inside Sales work area from the CW warehouse made racial comments or slurs "pretty often." (JA33-34) She said "I don't like saying these words, but I mean it was the N word, it was the B word, it was calling people spics" - "things along that line." (JA35,76) Medley said that her co-workers Tony, Mike, and Doug also made racial comments and slurs. (JA32,69-70) Tony used racial terms, including the "N" word, "quite often" and "whenever he was talking about the people who worked in the warehouse." (JA75,78) Medley was "certain" Tony used the "N" word. She said he used it "pretty much every day." (JA77-78) Medley recounted that on one occasion in October 2004, specifically, when certain CW employees had to do inventory, Tony "said some of the guys couldn't count, and he was calling them the N word and he was calling them spics." (JA76) Medley said she also heard Doug use the "N" word. She said "I don't know how many exact times" but "it was used within the department." (JA79-80) Medley stated that Tony, Mike, and Doug did not direct the "N" word at her, specifically. (JA83) Tony displayed a "mop-head" doll with a noose around its neck, hanging from the file cabinet in his office. (JA98,348) Medley said this was offensive to her because "that particular thing was done to black people years ago and to me that is what the doll represented." (JA99) Medley was specifically asked in her deposition if she believed the doll with the noose around its neck was "some type of racial statement." (JA348) She replied, "[a] doll with a noose around its neck the way they had it hanging from the file cabinet and seeing how blacks were lynched with - with a noose around their neck hanging from trees, yes." (JA348) Medley asked Tony why he had the doll in his office. He "just kind of shrugged his shoulders" and "walked off." (JA99) Tom DaBay, who was the supervisor of the CW lock shop, also kept a mop- head doll with a noose around its neck hanging from a shelf near his desk. (JA63,65,295,348). James Nedd, a black man who worked for DaBay, confirmed this. (JA63,292,363,365,421,443) DaBay said Mike (Medley's co-worker) had given him the doll. (JA436-37) Medley testified that Tony, Mike, and Doug also subjected her to offensive comments of a sex-based nature. (JA84-86) She testified that "it just came out of them just like it was just their regular conversation" and that "sometimes if a female would come into the department they would automatically call them a B [i.e., "bitch"]." (JA153) Mike referred to women as "bitches." (JA86) He did this "whenever he was referring to a female." (JA86) Medley said Mike used the term "definitely on a daily basis." (JA87) Mike's father Tony also used the term "on a daily basis." (JA88-89) Doug also referred to women as "bitches." (JA88) Mike also had a Playboy calendar of nude women and Playboy magazines on his desk. (JA97,106,130,411) He also put a Playboy poster on his cubicle wall. (JA97,106,130,411) Medley asked Mike "politely" to remove these items. (JA258,411) He refused, said "fuck this," and walked away from Medley. (JA411) Mike also put a screensaver on his computer that featured various images of partially nude women (e.g., the women "would have their nipple area showing and their vagina area showing"). (JA101-03,132-33,177) Mike testified that he had downloaded it from a male magazine's website. (JA177) Medley testified that pictures like these were "degrading to women." (JA130) She complained to Mike about the screensaver but he did not remove it. (JA104) Medley also heard Mike watching pornography in his cubicle. (JA93,130) She did not see the pornography playing on his computer (because she did not want to "stick my head around there" and look), but she heard people "moaning or making noises." (JA95-97,130) Medley said one time, Mike "yelled over to Doug Green [to] come over and see." (JA93) Medley told Mike, "that's not right what you're doing" and "you really need to stop" it. (JA93) Mike again just said, "F this" in response. (JA93-94) Medley said it "definitely affected me to be cursed out the way I was" and to be "in a department where I would just hear all the street language every day." (JA353) She was asked in her deposition if the harassment affected her job performance. (JA354) She said it imposed "a lot of pressure and it was stressful." (JA353-54) She also said it affected her to "see a woman's private parts every day" and to be told "F you, basically" when she asked that the pornography be removed. (JA354) CW has an anti-harassment policy as part of its employee handbook. (JA18- 19). The policy's "Complaint Procedure" encourages victims of harassment to notify the perpetrators that the behavior is unwelcome and/or to notify either their supervisor, or the company's Equal Employment Opportunity Officer, General Manager, Operations Manager, or President. The policy requires supervisors receiving a report of harassment to "report it immediately" up the chain. (JA18) The CW policy also provides that "[a]ll reports of discrimination or harassment will be promptly investigated." (JA19) According to the policy, "[a]ny individual found to have engaged in discrimination or harassment will be subject to disciplinary action, up to and including termination." (JA19) Wright testified that she "probably" had read this portion of the handbook. (JA389) She said the last time she read it was "[p]robably when I first came out or when I first started." (JA390) Wright did not remember receiving any training on the policy after becoming a manager. (JA390-91) Medley acknowledged having received and read the policy. (JA26-30,126) She tried to comply with it. She complained about the profanity, pornography, and racial slurs repeatedly, orally and by e-mail. (JA59.) Medley stated she "complained about the work condition and hostile work environment verbally and in writing" to Wright, company President Denicoff, and Lisa Beall, a CW human resources representative. (JA411) Medley explained: When I made known my complaints orally and in writing to Mr. Denicoff, the response I received from upper management was to shrug off my complaints with such comments as: "You will not be in that [Inside Sales] department for long, only until an Administrative Position was available"; "You should expect that type of language and conduct when you work with a bunch of guys"; "At this point in your life you should be use[d] to profanity"; and "You should transfer to accounting until another position is available[.]" (JA411) Medley testified that she "[d]efinitely" complained about the racial slurs in Inside Sales to "Lynette Wright and then to Drew Denicoff." (JA34-36) According to Medley: I initially went to my co-workers and I used to always say things like okay, there's a lady on the floor working now, things like that. And I went to Lynette and I told her. I said the profanity in this department is just out of control. [Wright] would tell me things like I'll talk to them, La Tonya, . . . and then she got to the point where she said well, she didn't know how to handle it or she didn't know how to address it or something like that. (JA34-35) Medley "complained to Lynette about all of it" - including that people in Inside Sales were making "racial comments" and using the "N" word, specifically. (JA35,80,83) Medley said she "definitely" told Wright she heard racial slurs being made. (JA35) She said she complained about the use of "racially derogatory terms such as the N word" "a number of times." (JA81) She said she asked Wright "several times" to address "how they were using profanity." (JA81) She said when she first started working in Inside Sales "I complained to her about it and then as it escalated, I kept on - I went back more, but I don't exactly know how many times." (JA81-81) Wright told Medley she would speak to those making the comments. (JA36) Medley testified that at first, "I don't think she talked to them and then at a point when it got worse, I think she did talk to them and they were just - they were just being disrespectful just by kicking it up a notch." (JA36) Denicoff testified that Wright never told him that Medley had complained "about any profanity or offensive material in and around" the Inside Sales department. (JA202) However, Medley did tell Denicoff directly about it. (JA36- 37) She said she was "certain" she told Denicoff she heard people using racial slurs. (JA38) She said she is "sure" she told Denicoff that Tony, Mike, and Doug were using the "N" word, specifically. (JA36-37,38-39,82-83) She said "I don't know how many times, but I did make him aware of it." (JA82) She indicated that Denicoff at first "seemed concerned" and said he would talk to the perpetrators. (JA37-38) However, Medley also indicated that she stopped complaining about Tony's use of the "N" word because "I had been complaining before and they were still doing it." (JA77-78) She said it seemed like when she complained "it escalated." (JA77-78) After Mike failed to remove his screensaver, Medley complained to Wright "verbally and in writing" about that too. (JA104) She said that despite these complaints "it didn't disappear." (JA104) She also complained to Wright about the pornography Mike played on his computer. (JA94) She told Wright "I can hear literally people having sex from his area" and that it was not right "that I had to come to work . . . and hear that." (JA94) Wright said she would address it with Mike. (JA94) However, Medley continued to hear pornography coming from Mike's cubicle even after she complained to Wright about it. (JA94-95) When she heard it again, Medley talked to Mike about it and told him again that "this did not belong in the workplace." (JA95) She then told Denicoff about it. (JA96,197) Medley testified that Denicoff indicated that it was not possible for Mike to be watching pornography at work. (JA96) Around this time, Wright went to Medley and suggested that she interview for an open Accounts Receivable position. (JA196) It appeared to Medley as if CW was going to force her to transfer out of Inside Sales because of her complaints. (JA139-41) Accordingly, on September 24, 2004, Medley sent an e- mail to Wright, and copied human resources representative Beall, explaining: . . . I don't think it is fair that I'm being ask[ed] to move to another department due to the inappropriate behavior in Inside Sales. Due to the pornographic screen saver, the offensive material around the office and all the profanity in the department this should not be tolerated in this company. The solution is not moving me out but insisting that everyone in the department go [b]y the company's policy on the above items. (JA195) Wright admitted that she did not respond to this e-mail. (JA120) When asked in her deposition why not, Wright replied "I don't have an answer." (JA120) Denicoff and Beall did meet with Medley about the e-mail. (JA106,197,200) They told her that she was not being transferred. (JA197) During the meeting, Medley told Denicoff and Beall that she had heard Mike and others discussing and viewing pornography. (JA197) She also told them about the screensaver and all of the Playboy items Mike had in his cubicle. (JA105-06) Medley told Denicoff and Beall about the use of racial slurs as well. (JA144) Medley testified "I was letting them know that it was out of control the things that they were saying and the jokes that they were making." (JA144) She said she is "pretty sure" that she indicated to Denicoff or Beall that the "N" word had been used. (JA145) Medley said their response was "they were going to follow up on all of this." (JA145) She said "[b]ecause of my conversation with Drew and Lisa I was very satisfied." (JA146) Denicoff testified that he then "had a really tough meeting with Mike" in which he told Mike that "this is outrageous" and "won't be tolerated and I'm not putting up with this." (JA208-09) Denicoff said Mike "completely denied ever looking at anything pornographic." (JA209) Denicoff said he believed Mike. (JA209) Denicoff also allegedly talked with a CW IT employee named John Huff to see if Mike had gone to any pornographic sites. (JA208) Huff told him that he "did not see that Mike went to any pornographic sites." (JA208) After this complaint, Mike called Medley a "MF" (i.e., "motherfucker"). (JA72) Tony also "was very upset" about the complaint and was "cursing loudly." (JA138,197) Tony said that Medley "needed to leave the F'ing department if [she] didn't like the way . . . things were going." (JA74-75) Wright eventually did require Mike to take down his FHM screensaver. (JA133,196) However, Medley said about a week and a half passed between the time she first complained to Wright about the screensaver and when it was removed. (JA105) Wright also apparently called John Huff and had Mike's internet access taken away so that he could not access pornography. (JA196) However, Medley testified that at some point, Mike "did get his Internet access back" because he "started up the same thing he had done before." (JA104,133-34) Medley said he continued to look at pornography on his computer and she continued to overhear it. (JA134) Denicoff testified that he "walk[ed] around the department a few times to make sure that there was nothing left." (JA202-04) He said he "found nothing." (JA203) According to Medley, however, the Playboy calendar and other similar items were still on display in Mike's workspace. (JA107) Medley talked with Denicoff, who told her "nothing was there." (JA23) Medley then took a photograph of the Playboy calendar on Mike's desk to prove that it was still there. (JA22,168,344) She never showed the photograph to Denicoff, however, and instead just "let it go." (JA22-23) When she was asked in her deposition why, Medley replied "[i]t still bothered me, but I really didn't want to miss any opportunity for further advancement at [CW] because I wanted to stay at [CW.]." (JA23) However, the harassment continued unabated. On October 5, 2004, Medley sent another e-mail to Denicoff stating: I do enjoy working in inside sales because I am learning so much from the guys and Lynette. But I have two complaints I would like to address with you. 1. The Profanity in the department is out of control and very offensive to me. I had a meeting with Lynette[.] [S]he told me she would get back to me because she really didn't know how to address it and I understand that this has been going on for so long it is now second nature but the company policy clearly addresses that profanity is prohibited. 2. The calendars on the desk with half dress[ed] women [are] offensive and on the lines of sexual harassment. I like working with everyone here and I fear retaliation if I address this again with them. Because everyone has been great in helping me and I don't want to come off as not being a team player . . . I need your help and intervention. Please let me know when we can meet. (JA108,172) According to a file memo dated October 6, 2004, Denicoff "immediately walked around Inside Sales to look for the calendars La Tonya was talking about" but found "no such calendars or anything with partially dressed wom[en]." (JA149,249). According to the memo: Lynette [Wright] noted that she occasionally hears profanity (even admitted to some herself) but it is[/]was way down. Lynette said that she thought that Mike Monaghan may still have a calendar with partially dressed women on it but that he keeps it hidden. Drew let Lynette know that this was completely unacceptable. Lynette was not sure if he still had the calendar and volunteered to do a desk search. Drew said not to do it yet and not to tell anyone about the meeting (Drew is working hard to keep the meeting confidential to keep with La Tonya's wishes as documented). (JA249). Denicoff and David Baxley, CW's Vice President of Operations, then met with Medley. (JA249,291) Medley told them that Mike still had the calendar on his desk, and that she found it offensive. (JA249) Medley told them that she believed that they had done nothing about her original complaint. (JA249) She told them there is still "a huge quantity of profanity, in her opinion, in the department." (JA249) She said the "main source" of it was Mike, and said that "much of it probably occurs while no management is around." (JA249) During this meeting, Denicoff, Baxley, and Medley discussed steps that could be taken to address the problems. (JA249) Medley said after their meeting she felt "that the things that were going on with Mike would actually stop." (JA157.) According to Medley, when Baxley later walked through the workplace, he "not only found a Playboy calendar but several other Playboy items such as the magazine and the Poster." (JA155) She said "David was pretty livid when he saw what Mike had on his desk" and he "removed the items." (JA107-08,158) According to a file memo prepared by Denicoff and Baxley, they also "strongly warned [Mike] about having items like this." (JA250) On or around October 7, 2004, Denicoff held a meeting where he discussed CW's policy on profanity with members of Inside Sales. (JA226,251) CW's Vice President of Warehouse & Production Phil Grauel was also asked to attend this meeting so he could "go over this with their staff." (JA251). According to Denicoff: I let them all know our preference to not have profanity in the building. I explained that we understand that every now and again one will get out but profanity needs to be reduced. I explained how profanity coupled with a slur against someone's race, religion, sex etc. would never be tolerated. (JA251) Denicoff testified that "I wanted to be real sure that everyone heard from me directly" and "that everyone knew what Central Wholesalers' policy was and that I was not going to permit any racist comments at Central at all." (JA227) Denicoff said he also "wanted it to be clear that I know that occasionally, hopefully rarely, a curse word comes out and I'm not going to be writing people up every time but I generally didn't want that happening." (JA227) About one month later, at the beginning of November 2004, Mike was terminated. (JA177) Denicoff and Wright submitted a memo to Mike's personnel file indicating he was fired because he had not shown up to work for several days and had missed a mandatory "inventory" work day without permission. (JA178) The memo indicated that Denicoff "consider[ed] this a resignation." (JA178) The memo also stated that "Mike is not eligible for re-hire due to the nature of the situation and some prior issues we have had with him that are documented." (JA178) Denicoff said Mike: knew that I was extremely upset about the screen saver, about the calendar that we found after the screen saver incident which I found to be outrageous and that my understanding was that he continued to curse. And I met with him a couple of times and I would be like you're this close, buddy . . . . I think I said that to him four or five times. I said, "You're this close, I won't have it." Then he didn't come in to work and he didn't call and I took that opportunity in that particular case. So officially he resigned. (JA229-30) Denicoff was asked in his deposition if the Inside Sales representatives had been made to understand the company's profanity policy after their meeting with Denicoff. (JA228) He said, "They did on October 7th" (i.e., the day of the meeting). (JA228) He was then asked if he thought "they didn't understand it at a later date." (JA228) He said, "I think they understood it and chose to go against my wishes." (JA228) He was asked, "In what way?" (JA228) He said, "Well, several of these people are gone, no longer at Central because they broke this policy and I'm happy about that." (JA228) Denicoff indicated that these people were Mike, Tony, and Doug. (JA228-29) He said Doug "clearly didn't get it." (JA229) He also said Tony "clearly didn't get it and I won't have it." (JA229) On November 10, 2004, after Mike had been discharged, Wright directed Medley to see Tom DaBay (the CW locksmith, who, like Tony, had a doll with a noose around its neck which Tony's son Mike had given to DaBay). (JA394-95) Wright asked Medley to find out about some lock pieces a customer had ordered. (JA394-95) DaBay apparently had a reputation for treating co-workers in a hostile manner. (JA412) Medley testified she had "witnessed him cuss out several employees, blow up at employees, screaming and yelling . . . ." (JA66-68) Given this reputation, Medley told Wright she did not feel comfortable asking for DaBay's help. (JA412) Wright apparently directed Medley to go see DaBay anyway. (JA412,413) When Medley arrived at his office, DaBay was on the phone. (JA412) Medley waited. (JA412) DaBay then asked her abruptly, "What do you want?" (JA412) Medley started to tell DaBay what she needed and he "rudely" interrupted her and said he did not know anything about the locks in question. (JA412) Medley asked, "Are you sure?" (JA412) DaBay then stood up "in [Medley's] face yelling, "Are you fucking stupid?" "I just told you I don't know about the locks." "Are you a dumb fuck?" "Can't you understand anything?" (JA412) DaBay then left his office, calling Medley a "stupid motherfucker" as "loudly as he could." (JA412) Medley said DaBay "was constantly calling me the N word, he was constantly calling me the B word, he was just constantly calling me all type of names." (JA39) Medley fled to CW's warehouse to see if the lock pieces in question might be there. (JA412) When she arrived in the warehouse, CW Transportation Manager Durwood Burney and CW's Vice President of Warehouse & Production Phil Grauel - who had been asked to attend the meeting Denicoff held on CW's profanity policy - asked her what happened. (JA412) They had apparently heard DaBay yelling at her. (JA45,297,412) Medley explained the situation, and Grauel and Burney helped her look for the locks. (JA412) They could not find the pieces in the warehouse so Grauel and Burney told Medley to go ask CW Warehouse Manager Chuck Stewart where they might be. (JA412) It does not appear as though Burney or Grauel followed up to find out where DaBay had gone, to discipline him, or to ensure that he would leave Medley alone. When Medley went to look for Stewart, she went back by DaBay's office. (JA412) DaBay's assistant, James Nedd, saw Medley and offered to help her locate the locks. (JA412) DaBay then came back. (JA412) Medley held her hand out to DaBay and told him "thanks" in an effort to defuse the situation. (JA412) Medley turned to walk away and DaBay again started yelling at her, saying, "You motherfucker, why did you have him [Nedd] looking for that fucking [set of locks]?" "You black stupid bitch!" "I should kick your mother fucking ass." (JA412) DaBay "continue[d] to swear." (JA412) Medley testified that DaBay called her a "black nigger." (JA40) She said he also called her a "black stupid nigger." (JA40) Nedd told DaBay that he had offered to help Medley. (JA41-42) DaBay then cursed at Nedd. (JA42,411) Medley testified that DaBay also used the "N" word in front of Nedd, and even called Nedd the "N" word (though Nedd later denied this). (JA41-42,241,265,267,275-76,443) Medley said DaBay was "so angry" he said it "more than once." (JA42) Medley started again to walk away and DaBay came down the hallway after her, "calling [her] names and threatening" her, yelling, "Bitch if I tell you something you better listen." (JA46,411) He said "Fuck you if you don't believe me when I tell you something." (JA412) At that point, CW employee Gary Corle was in the hallway between Medley and DaBay. (JA412-13) DaBay yelled at Corle, telling him, "You better school that bitch and let her know she better stay out of my face before something happens to her." (JA413) Medley testified that she was "sure" that Corle also heard DaBay use racial epithets against her, including the use of the "N" word. (JA46-47) Managers in the CW Executive Offices also heard the altercation in the hallway "because the yelling was so loud." (JA47,413) CW Sales Manager Britt August came around the corner "looking around like there was something going on." (JA47,413) However, he did not do anything to discipline DaBay or address the altercation. (JA413) Medley said she was "sure" August heard DaBay's outburst, but she did not know if he also heard the exact words DaBay was using. (JA47) Medley then told Wright what had happened. (JA413) Wright went to find DaBay in his office. (JA413) DaBay screamed at Wright "at the top of his lungs" things like, "If that dumb bitch does not believe me then fuck her." "I told that bitch I did not have the locks." "Tell her to kiss my ass and fuck off." (JA413) By this time, Medley was in tears. (JA413) She went to the office of Joanne Starner (her former supervisor). (JA375,413) Medley told Starner "the names and everything that he had called me" including that DaBay had called her a "black N and a black stupid N." (JA327) Medley said she sat in the back of Starner's office, in the corner, where no one could see her crying. (JA413) While Medley was there, Wright came in "laughing" and said to Starner, "guess what Tom did to La Tonya?" (JA413) (Apparently Wright did not see Medley in the back of Starner's office. (JA413)) Medley jumped up and exclaimed "this was not funny! I was just threatened and cursed out unnecessarily." (JA327,413) Medley walked out of Starner's office and went to the restroom to collect herself. (JA413) She was very shaken. (JA413) She then went to Wright's office and told her she was leaving for the day "because I was threatened and did not feel that I was in a safe working environment." (JA413) Medley said that before she left she wanted to speak with someone in the Executive Office to inform them about what had happened, but she did not feel comfortable speaking to Wright any longer (since she had thought the situation was "so funny"). (JA413) Therefore, Medley tried to call Baxley. (JA413) She was unable to reach him. (JA413) Later, Medley sent an e-mail from home to Wright and copied Denicoff and Beall (the human resources representative). (JA413) The e-mail stated: After the events that occurred today with Tom DaBay, I want to make a formal complaint against him related to the violent and hostile environment I was subjected to. I also want to document, that . . . I left today at 2:53 p.m. due to Tom's threatening, intimidating behavior and abusive language [which] left me feeling threaten[ed] to the point I got so upset I wasn't feeling well due to the situation. (JA256) No one from CW ever responded to Medley's e-mail. (JA413-14) She said she waited for someone to call "so we can at least talk about or discuss what had happened." (JA50) She said "I thought it was appropriate for them to at least have enough concern" to "respond to my initial e-mail to say La Tonya, we would like to talk to you about the incident that happened." (JA51) Medley testified that when she did not hear anything in response "I just thought they were unconcerned." (JA49) Accordingly, on November 12, 2004, Medley had her attorney send CW a letter of resignation on her behalf. (JA51,257-59,414) She said "I resigned because I was threatened and I was scared to return to work" and "I didn't hear back from anyone" at CW. (JA53,167) DaBay testified that he "absolutely" was upset with Medley that day and said he was "sure" he yelled at her. (JA304) He said her reaction was to "kind of shrink away." (JA307) He also said he thought she was scared of him "to a certain degree." (JA307) He admitted he "most likely" called Medley a "bitch." (JA305) He said he "probably" called her a "stupid bitch." (JA305) He was specifically asked if he called her a "stupid black bitch" and he replied, "I doubt that very seriously." (JA305,309) He said "I just don't say that at work." (JA305) He indicated he did not use the "N" word at work either. (JA305) However, DaBay said "oh sure" when asked if he uses the "N" word (e.g., outside of work). (JA305-06) He said the "N" word did "not really" bother him. (JA306) Denicoff stated that after investigating the incident he was "not sure what to believe." (JA267) Consequently, he merely met with DaBay "and asked him to do his best in the future not to yell or curse." (JA268) Denicoff said that "without talking to La Tonya, I'm not sure what further action is necessary." (JA268) However, neither Denicoff nor anyone else in management at CW attempted to call Medley after November 10, 2004. (JA237-239) DaBay testified that he did not get any written reprimand or suspension. (JA270) DaBay said "they" told him "they have now had enough of me and my mouth and things are going to change, whether I like it or not." (JA270) Later, DaBay did attend some anger management-type training, though he said he was not forced to go to it. (JA270- 73) DaBay also said Denicoff asked him to take the mop-head doll with the noose out of his office "right after this." (JA438) Nedd said DaBay "was a little upset about having to remove it" and also upset that Mike had had "pictures or something like that, calendars, [which also] had to be removed." (JA371,442) About sixteen months later, in April 2006, CW fired Medley's co-worker Tony. (JA218) Another female employee made a complaint that Tony had been using racial slurs toward her. (JA219,385) Denicoff acknowledged that Tony said something "racially insensitive." (JA219) Denicoff said "he said racially insensitive things, clearly" and "he clearly deserved to be fired." (JA220) B. District Court Decision In its oral ruling at the hearing on CW's summary judgment motion, the district court concluded that the harassing comments and conduct in question "are obviously unwelcome to the plaintiff and that's why she's here." (JA501) Nevertheless, the court concluded, the harassment was not serious enough to establish a violation of Title VII. The court initially stated that harassment only needs to be "severe or pervasive" to be actionable. (JA487-88) However, throughout the hearing, the court indicated that harassment actually has to be severe and pervasive. (JA455,472,488,501,502,504). The court then found that the harassment here was not. It first addressed the EEOC's gender-based claim, explaining: [T]he word that is objected to is the word bitch, B-I-T-C-H, used regularly by [Tony, Mike, and Doug]. Neither of the three individuals allegedly made any kind of sexual gesture to her or any kind of sexual imputation. That there are some complaints about what were on the screen savers of the computers in showing scantly clad women that also the plaintiff found offensive and that she heard pornography, that is, she heard what she believed to be sexual contact on the computer. She didn't see it but she heard it on one of these individual's computers. And that is the, gist of the - well, in addition to the fact that she's called bitch, I guess she's call motherfucker by DaBay on the 10th, so she says, and these are terms that she contends are sexually discriminatory and comprises a sexually discriminatory environment. (JA500) The district court ruled that "words like fuck and bitch and so on and so forth" are "not gender specific issues that raise any kind of potential claim" under Title VII. (JA501) According to the district court: These are terms that are used all the time, whether they're welcome to some people or not. They simply are common terms. A male can be as offended by words like fuck and bitch, which, by the way, the Court would know is sometimes used by males in today's society, that men are referred to as bitches. (JA501) "But apart from that," the district court continued, "even the scantly clad women, the examples that are in the exhibits are the kind of thing that one sees on a news stand all the time." (JA501) According to the court, "[w]hether they offended the plaintiff or not is really not the issue in this case." (JA501) "The question is whether they would offend a reasonable person." (JA501) Here, the court held, they would not. "They are part and parcel of the world today and, as a matter of law, the Court would find that neither the words that [Medley] was offended by that had any kind of sexual context, whether it's bitch, the word fuck, or the images that appeared on the screen, that, as a matter of law in the Court's view, would not even contact any kind of discrimination that could lead to a gender-based hostile environment." (JA501) Moreover, even if it did, the district court ruled, it would "certainly" not be "severe and pervasive enough" to establish "a sexually hostile environment." (JA501) "Beyond that[,]" the district court found, CW had acted expeditiously in rectifying the harassment. (JA502) The court emphasized the fact that "this entire episode, the entire experience was two months in duration" and the fact "that within a matter of days afterwards, individuals who had these images on their screen, individuals who allegedly had access to this what plaintiff believed was sexual activity going on that she heard, all these people were reprimanded in an appropriate fashion by the defendant." (JA502) The district court then turned to the EEOC's race-based harassment claim, noting that it too has to be "severe and pervasive." (JA502) The court stated: What we have here, without dispute, is that there was never any word until November 10th allegedly spoken directly to the plaintiff. That she heard the word, the word nigger, the N word, used frequently, and that she complained about that, and that she heard that on a regular basis used by various people, not so much by the three individuals who are - well, to some extent the three individuals who are allegedly involved in this, but also by other people in the environment, and that this was offensive and that she complained about it. And specifically, she does rely upon the fact that . . . racial words such as black nigger, black stupid nigger . . . were used by DaBay at the last day when she resigned. (JA502-03) The district court indicated that the mere use of a racial epithet like the "N" word cannot create a racially hostile work environment. (JA464 ("That simply cannot be a correct statement of the law. It may be uncouth and insensitive but that simply cannot be so.")) However, in rendering its ruling, the district court assumed, "for purposes of argument only, although it's a very thin proposition," that hearing the "N" word spoken "even daily" but not directed at the charging party would be "sufficiently pervasive and severe to affect a reasonable person." (JA504) Here however, the district court indicated, the gist of the EEOC's case was the altercation between DaBay and Medley. The court reasoned that "[t]he problem" was that Medley "did not give defendant, as a matter of law, a reasonable opportunity to investigate and correct the situation" because she quit two days later. (JA504) In short, the court reasoned: [T]he fact of the matter is that a lot of these words that she found offensive are simply not words that a reasonable person would or should find offensive at least under the circumstances of this case. Likewise with the pictures, again, she might have found them unacceptable. They're on news stands everywhere. Those are the kinds of things that seems to me undermine any claim that this was a severe and pervasive environment based on the gender or race or, most importantly, that the defendant did not do anything to try and accommodate and contend with these problems. In the Court's view, as a matter of law, the defendant did. (JA505) SUMMARY OF ARGUMENT The district court committed reversible error in granting summary judgment on the EEOC's harassment claim. To survive summary judgment, the EEOC had to create a genuine issue as to whether Medley was subjected to harassment that was unwelcome, based on her race and/or sex, and severe or pervasive enough to alter the conditions of her employment and create a hostile or abusive working environment. The EEOC proffered sufficient evidence at summary judgment to raise a jury question as to each of these elements. Viewed in the light most favorable to the EEOC, the evidence shows that while Medley worked in Inside Sales she was subjected to an almost daily barrage by her co-workers of derogatory and humiliating anti-female and anti-black epithets of the worst kind. Mike displayed pornographic pictures of nude or partially nude women. Medley overheard Mike playing pornographic videos of people having sex. Tony and DaBay both displayed a doll with a noose around its neck. In addition, DaBay subjected Medley to a sexist and racist tirade, in which he shocked and scared her into resignation. This harassment unquestionably was unwelcome. It was patently sex-based and race-based. Medley subjectively believed, and a reasonable person would also objectively conclude, that this abuse was severe or pervasive enough to create a hostile work environment. In dismissing the Commission's harassment claim, the district court applied erroneous substantive legal standards and improperly evaluated the evidence. First, the district court ruled - wrongly - that epithets like the "B" word were not gender-specific (despite numerous court rulings and all common-sense interpretations of the term to the contrary). Second, the court held - erroneously - that the harassment had to be "severe and pervasive" (even though the Supreme Court has explicitly held that harassment only has to be severe or pervasive to be actionable). Third, the district court also found - inappropriately - that the sex- based and race-based comments and conduct in question were not sufficiently serious to be actionable. The court doubted that the use of the "N" word alone could create a racially hostile work environment, despite this Court's case law stating the opposite. The district court also concluded that the pornography was of the sort found on newsstands all the time and hence not objectionable, even though a jury easily could have concluded that it made Medley's workplace a humiliating and hostile place for her as a woman to be. Fourth, the district court ignored other pertinent proof - notably, that there were nooses in Medley's work environment. The fact finder should have been allowed to assess all this evidence and determine whether it met the requisite "severe or pervasive" standard. The EEOC also raised a jury question as to whether CW could be held legally responsible for this harassment. An employer is liable for co-worker harassment if it knew or should have known about it and failed to take effective corrective action to stop it. Here, Medley complained repeatedly to the perpetrators, her direct supervisor, human resources, and the company President and Vice President. There is thus at a minimum a jury question as to whether CW had actual notice of the harassment. There is also a genuine issue as to whether CW failed to correct it. While CW did take certain steps aimed at reducing the sex-based and race-based conduct in question, the evidence strongly suggests that it ultimately did not stop this harassment. In short, in ruling that no reasonable jury could find CW liable for subjecting Medley to a sex-based and/or race-based hostile work environment, the district court misconstrued and misapplied controlling Title VII case law, broke basic summary judgment rules, and usurped the jury's role. These errors require reversal. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE EEOC'S HARASSMENT CLAIM. A. Standard of Review This Court reviews the district court's grant of CW's summary judgment motion de novo, applying the same standard the district court should have used to evaluate the evidence. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006). Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (same). At summary judgment, the court must "review all of the evidence in the record." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (emphasis added); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (at this stage the court must evaluate "the record taken as a whole"). "In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 150-51 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 255 (1986)). Thus, "it must disregard all evidence favorable to the moving party that the jury is not required to believe" and "give credence to the evidence favoring the nonmovant . . . ." Reeves, 533 U.S. at 151. B. The EEOC Adduced Enough Evidence to Allow a Reasonable Fact Finder to Conclude that Medley was Subjected to a Hostile Work Environment Because of Her Race and/or Sex. Title VII forbids an employer from discriminating on the basis of race or sex with respect to terms, conditions, or privileges of employment. See 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has long recognized that such discrimination includes subjecting an employee, because of a protected characteristic such as the employee's race or sex, to a workplace permeated with unwelcome "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create a[] [hostile or] abusive working environment." Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 65-67 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality."); EEOC v. Sunbelt Rentals, Inc., F.3d (4th Cir. 2008), 2008 WL 836409, at *1 ("Title VII extends the promise that no one should be subject to a discriminatorily hostile work environment."). Here, the EEOC alleges that CW violated Title VII by subjecting Medley to an environment which became abusive and hostile for Medley because of her sex and race. The EEOC can prove its case by demonstrating that the harassment was (1) unwelcome; (2) based on Medley's sex and/or race; and (3) subjectively and objectively severe or pervasive enough to alter the conditions of her employment. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir. 2004). To survive summary judgment, the EEOC had to establish a genuine issue as to each of these elements. See EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001). Contrary to the district court's ruling, the EEOC met this burden. First, the relevant comments and conduct in this case unquestionably were unwelcome. The record reveals that Medley complained about the harassment repeatedly to the perpetrators, her supervisors, human resources, and even the company's President and Vice President. This easily is enough evidence to create a genuine issue on whether the harassment was unwelcome. See, e.g., Sunbelt Rentals, F.3d at , 2008 WL 836409, at *5 ("Because [the victim] indicated to both management and his coworkers that he found the . . . demeaning conduct to be offensive, the EEOC 'has sufficiently alleged that [the] harassment was unwelcome'" (quoting Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000))). The district court concluded as much. (JA501) Second, there was a genuine issue as to whether the harassment here created a working environment that was hostile and abusive "because of" Medley's sex and/or race. The crux of the Commission's sex-based hostile work environment claim involved the pervasive use of the "B" word in Medley's presence. A reasonable jury certainly could conclude that this was a gender-specific epithet. See, e.g., Reeves v. C.H. Robinson Worldwide, Inc., F.3d (11th Cir. 2008), 2008 WL 1848882, at *4 (holding "sex specific" words like "bitch" "may be more degrading to women than men" (internal quotation marks omitted)); Forrest v. Brinker Int'l Payroll Co., LP, 511 F.3d 225, 229-30 (1st Cir. 2007) (noting "a raft of case law" establishes that the use of sexually degrading, gender-specific epithets such as the "B" word "has been consistently held to constitute harassment based upon sex") (collecting cases)); EEOC v. P.V.N.F. LLC, 487 F.3d 790, 799 (10th Cir. 2007) (stating "we have characterized the ["B"] word" as "a 'sexual epithet[]' that courts have described as 'intensely degrading'" (quoting Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996))); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 732 (8th Cir. 2000) (Lay, J., dissenting) (concluding "there is little doubt that the extensive use of the gender-specific pejorative 'bitch,' coupled with the sexually explicit and offensive term "fuck," could support a finding that the harassment was based on sex"). The district court concluded that the "B" word is not "gender specific." (JA501) Instead, the district court reasoned that the term is "used all the time" and that "[a] male can be as offended by words like [the "B" word]" which are "sometimes used by males in today's society." (JA501) However, whether an epithet like the "B" word is commonly used is not relevant to whether it is gender- based. Further, the district court neglected to recognize that when the word is used by men referring to men, it typically is an attempt to denigrate the target as being insufficiently masculine (i.e., by comparing him to a woman). Moreover, there is no evidence indicating that any male (or female) used the word in Medley's presence when referring to a male. To the contrary, the term was used only by men when talking about women, specifically. Medley said Mike referred to women using the "B" word "whenever he was referring to a female." She testified that Doug also referred to women as "b***s." The district court thus contravened summary judgment standards by ignoring the actual record and hypothesizing about facts or circumstances not applicable or present in this case. In addition to being subjected to the persistent use of the gender-based "B" word, Medley also was exposed to Playboy paraphernalia and a screensaver depicting nude or partially-nude women. Medley also was subjected to the sounds coming from Mike's computer of people having sex. The district court largely ignored this component of the hostile work environment. It never squarely addressed whether a reasonable jury could conclude that exposure to this pornography was harassment "because of" gender. A reasonable jury quite plausibly could. See Harris v. L&L Wings, Inc., 132 F.3d 978, 981-82 (4th Cir. 1997) (pornographic images of women constituted sex-based harassment). Accordingly, the court should have allowed a jury to decide this question. Similarly, the district court should have let the fact finder evaluate whether the persistent use of the "N" word and other racial slurs by Medley's co-workers and DaBay was harassment "because of" race. This Court has held that the "N" word obviously is a race-based slur. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 297-98 (4th Cir. 2004) (the "N" word is "pure anathema to African- Americans"); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182, 185-86 (4th Cir. 2001) (it is an "unambiguously racial epithet"). Other slurs DaBay called Medley (e.g., "stupid black b***") constitute race-based harassment, as well. See Reinhold v. Va., 135 F.3d 920, 927 (4th Cir.), superseded on other grounds, 151 F.3d 172 (4th Cir. 1998) ("white b***" is a "racially derogatory statement[]"). In addition, the jury could find that the mop-head dolls with nooses around their necks that Tony and DaBay displayed - symbols Medley perceived to be outrageously racist - made Medley's environment intensely more hostile because of her race. See, e.g., Tademy v. Union Pac. Corp., F.3d (10th Cir. 2008), 2008 WL 852491, at *8 (explaining that "the image of a noose is deeply a part of this country's collective consciousness and history, [and] any [further] explanation of how one could infer a racial motive appears quite unnecessary" (internal quotation marks omitted)). Third, there is ample proof to create a jury question as to whether this harassment was "severe or pervasive" enough to be actionable. This test includes both an objective and subjective component. As the Supreme Court has noted, "[c]onduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 21. Likewise, "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Id. at 21-22; see also Lissau v. S. Food Serv., Inc., 159 F.3d 177, 183 (4th Cir. 1998) (same (citing Harris)). The Supreme Court has further explained that the determination of whether the harassment is sufficiently serious: is not, and by its nature cannot be, a mathematically precise test. . . . [W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. . . . [N]o single factor is required. Harris, 510 U.S. at 22-23; see also Oncale v. Sundownder Offshore Servs, Inc., 523 U.S. 75, 81-82 (1998) (similarly stressing the need to look at "all the circumstances" in these cases). In ruling the harassment here was not actionable, the district court applied incorrect legal standards and improperly evaluated the record evidence. While the district court initially stated that harassment has to be "severe or pervasive" to be actionable, the court then repeated throughout the hearing that the legal standard was actually "severe and pervasive." (JA487-88,JA455,472,488,501,502,504) Of course this misstates the law. As already indicated, the Supreme Court has explicitly held that harassment only has to be severe or pervasive to be actionable. See Meritor, 477 U.S. at 67; see also Harris, 510 U.S. at 21 (explaining Title VII is violated whenever the workplace "is permeated with [sex- or race-based] intimidation, ridicule, and insult that is sufficiently severe or pervasive" (emphasis added)); C.H. Robinson Worldwide, F.3d at , 2008 WL 1848882, at *7 (explaining "either severity or pervasiveness can satisfy the element" (emphasis in original)); Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) (noting the "test is a disjunctive one"). Thus, the district court committed clear error by applying the wrong legal standard in disposing of the Commission's harassment claim. Here, viewing the evidence in the light most favorable to the EEOC, a reasonable jury could conclude that the harassment was subjectively and objectively serious enough to meet the requisite standard. It is clear that Medley believed her work environment had become hostile and abusive because of her sex and race. She consistently complained about the pervasive use of racial and sexist epithets. Medley testified that because of "some of the things that they were doing" it "was just unbearable day to day to come in to work." She stated it "definitely affected me to be cursed out the way I was" and to be in a department "where I would just hear all the street language every day." The racial slurs at issue were so offensive to Medley she did not even like to say them out loud or write them down. She also testified that the pictures of nude women in the workplace were "degrading to women." She said "it affected me" to "see a woman's private parts every day." She asked Mike to remove his screensaver, told him it was "not right" to play pornography on his computer, and said "you really need to stop it." She testified that it just was not "right that I had to come to work and "hear that." She complained in writing about "the offensive material around the office and all the profanity in the department" and told her superiors that it "should not be tolerated." She also told them that the pictures of naked women are "offensive and on the lines of sexual harassment." She said "things got uncomfortable" in Inside Sales. She said the environment imposed "a lot of pressure" and "was stressful." This evidence is more than sufficient to allow a reasonable jury to conclude that Medley subjectively believed her environment had become hostile and abusive because of her race and sex. See R&R Ventures, 244 F.3d at 339 ("In conducting the subjective inquiry we need only look at the testimony of the complaining witnesses."); Spriggs, 242 F.3d at 185 (a victim's complaints to supervisors about harassment shows he or she believed the environment was hostile or abusive). The district court does not appear to have ruled otherwise. However, the district court did rule as a matter of law that the sex-based and/or race-based harassment was not objectively severe and pervasive enough to be actionable. For instance, the court indicated that the mere use of the "N" word alone cannot create a racially hostile work environment. (JA464 ("It may be uncouth and insensitive but that simply cannot be so.")) The district court also alleged that the use of words like the "B" word is "part and parcel of the world today" and thus did not even approach the kind of discrimination actionable under Title VII. (JA501) The court reasoned that "a lot of these words that she found offensive" are used all the time and simply are "not words that a reasonable person would or should find offensive at least under the circumstances of this case." (JA505) This was reversible error. The "N" word is uniquely abhorrent. As this Court has recognized, "[f]ar more than a mere offensive utterance, the word 'nigger' is pure anathema to African-Americans." White, 375 F.3d at 297-98; see also Belton v. City of Charlotte, 2006 WL 1444394 (4th Cir. May 23, 2006), at **13 (its use is "reprehensible," "repugnant," and "inexcusable"). As noted above, the "B" word is "intensely degrading to women." P.V.N.F. LLC, 487 F.3d at 799; see also Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 965 (8th Cir. 1993) (sex-based epithets like this one "deriv[e] their power to wound not only from their meaning but also from 'the disgust and violence they express phonetically'" (quoting Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983))). These singularly odious epithets constitute egregious race-based and sex-based harassment. The district court thus committed reversible error in ruling as a matter of law that the use of slurs like these cannot create a hostile work environment. Medley, the only woman and the only African American representative in Inside Sales, was exposed to these insults on a persistent basis for the entire two- month period she worked in that department. Her male white co-workers Tony, Mike, and Doug used these "pretty often," "constantly," even daily (e.g., used the "B" word "whenever . . . referring to a female" and "definitely on a daily basis" and used the "N" word "quite often" and "pretty much every day"). Sometimes they even made racial jokes and uttered ethnic slurs in front of CW customers. This was more than enough to create a jury question as to whether Medley was subjected to severe and/or pervasive harassment that created a hostile or abusive working environment because of her sex and/or race. See, e.g., Winsor, 79 F.3d at 1000 ("'It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII . . . .'" (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1539 (10th Cir. 1995))); Spriggs, 242 F.3d at 182, 185 (ruling that "frequent and highly repugnant insults were sufficiently severe or pervasive (or both) to cause a person of ordinary sensibilities to perceive that the work atmosphere . . . was racially hostile"); see also Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) ("While there is no 'magic number' of slurs that indicate a hostile work environment, we have recognized before that an unambiguously racial epithet falls on the 'more severe' end of the spectrum."). The district court erred in ruling otherwise. The events of November 10, 2004, added significantly to the gender-based and race-based hostility Medley suffered at CW. Viewing the evidence in the light most favorable to the EEOC, a reasonable jury could conclude that DaBay physically threatened and intimidated Medley and called her the most offensive of gender-based and race-based slurs - over and over again. Medley was shocked and scared by DaBay's mistreatment. She even resigned as a result of it. It bears emphasizing that DaBay, the perpetrator of this egregious harassment, was a CW supervisor. A jury could find that this fact increases the severity of his abuse. See, e.g., Pa. State Police v. Suders, 542 U.S. 129, 145, n.6 (2004) (finding that a supervisor's "power and authority invests his or her harassing conduct with a particularly threatening character" and "that the presence of actual physically threatening behavior "undeniably strengthens a hostile work environment claim") (internal citation omitted)). The district court acknowledged this incident, but then discounted or disregarded other events that contributed to the hostile work environment in question. For instance, the district court rejected the idea that the pornography in Medley's workplace - mere pictures of "scantly clad women" of the kind "on news stands everywhere" (JA501,505) - objectively could be considered offensive enough to be actionable. Whether pornographic images are publicly available or palatable to some people in a non-work setting is beside the point. What is relevant here is whether such images render Medley's workplace a hostile one. Medley was exposed to pictures of nude women in her work space on a daily basis. On certain occasions she was even subjected to the audible sounds of individuals having sex in the cubicle right next to hers, a fact the district court essentially disregarded. A jury could find that the pervasive presence of this pornography increased the gender-based hostility in her work environment. See, e.g., L&L Wings, 132 F.3d at 981-82 (finding that pornography - including "posters of scantily clad women" - "contributed to the sexually hostile environment"); C.H. Robinson Worldwide, F.3d at , 2008 WL 1848882, at *6 (finding "[i]t is arguably severe for the sole woman in a workplace" to be exposed to "female pornography" and that exposure even to a single pornographic image on a co- worker's computer could "contribute[] to the objectively humiliating environment"); Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (recognizing that "the mere presence of pornography in a workplace can alter the 'status' of women therein and is relevant to assessing the objective hostility of the environment"); Burns, 989 F.2d at 965 ("'Obscene language and pornography quite possibly could be regarded as highly offensive to a woman who seeks to deal with her fellow employees and clients with professional dignity and without the barrier of sexual differentiation and abuse.'" (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1485-86 (3d Cir. 1990)). The district court erred in taking this determination away from the jury. Similarly, the court erred in ignoring altogether evidence that Medley's co- worker Tony and DaBay prominently displayed noose-laden dolls. A fact finder could conclude that this dramatically exacerbated the racial hostility in Inside Sales. See Tademy, F.3d at , 2008 WL 852491, at *11 (concluding "the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence" and "the noose remains a potent and threatening symbol for African- Americans, in part because the grim specter of racially motivated violence continues to manifest itself in present day hate crimes" (quotation marks and citation omitted)); cf. Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 n.4 (11th Cir. 1989) ("The grossness of hanging an object resembling a noose at the work station of a black female is self-evident."). By failing to credit this evidence, the district court contravened clear summary judgment principles. See, e.g., Harris, 510 U.S. at 22-23 (the "severe or pervasive" inquiry requires a totality-of- the-circumstances approach); Oncale, 523 U.S. at 81-82 (similarly emphasizing the need to consider the "constellation of surrounding circumstances" in these cases); Reeves, 530 U.S. at 150 (at summary judgment the court must review the record "taken as a whole"); see also Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 193-94 (4th Cir. 2000) (finding a district court erred in analyzing pieces of evidence of harassment in a "disaggregated fashion, contrary to Harris's 'totality of the circumstances' test"). In sum, viewing all the record evidence in the light most favorable to the EEOC, a reasonable fact finder could conclude that Medley was subjected to severe or pervasive harassment that created a hostile and abusive working environment for her because of her sex and/or race. The district court thus committed reversible error in usurping the jury's role and keeping the EEOC's harassment claim from the fact finder. See Conner, 227 F.3d at 199-200 (whether harassment is severe or pervasive enough to be actionable is "'quintessentially a question of fact' for the jury") (quoting First Union, 202 F.3d at 243)); Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (same). C. The EEOC Produced Sufficient Proof to Permit a Reasonable Jury to Find that CW Knew About the Harassment but Failed to Take Adequate Corrective Action to Stop It. To survive summary judgment, the Commission also had to show that there is a basis for holding CW liable for the harassment detailed above. See Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007). In this case, the EEOC had to raise a genuine issue as to whether CW "knew or should have known about the harassment [by colleagues] and failed to take effective action to stop it." Sunbelt Rentals, F.3d at , 2008 WL 836409, at *10 (quoting Howard v. Winter, 446 F.3d 559, 565, 567 (4th Cir. 2006)); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc); Mikels v. City of Durham, 183 F.3d 323, 332 (4th Cir. 1999). The district court committed reversible error in ruling as a matter of law that the EEOC had not made this showing. The EEOC proffered enough evidence to create a jury question on whether CW knew about the harassment here. Medley complied with CW's anti- harassment policy by first telling the perpetrators to stop the offensive behavior. She "initially went to [her] co-workers and [would] always say things like okay, there's a lady on the floor working now, things like that." She insisted that their profanity was inappropriate and unbusinesslike. She complained to Mike about his screensaver. She "politely" asked Mike to remove his Playboy calendar, magazines, and poster. She told him to he "really need[ed] to stop" playing pornography on his computer - that it "did not belong in the workplace" and that it was "not right what you're doing." When her co-workers "ignored all the entreaties [she] made" for them to "cease and desist" she "became the object of the[ir] scorn" (e.g., they called her a "motherf***er," told her "F you, basically," and suggested she leave the department). Accordingly, per company policy, Medley escalated her complaints to company management. Despite wanting to be a "team player" and her fear of retaliation, Medley reported the harassment orally and in writing to her direct supervisor Wright, to human resources representative Beall, and even to company President Denicoff and Vice President Baxley. She said she "complained to Lynette about all of it" - including that people in Inside Sales were using the "N" word, specifically. She told Wright "I can hear literally people having sex from [Mike's] area." She said she "definitely" complained about the racial slurs "a number of times" to Denicoff, as well. She said she told Denicoff that Tony, Mike, and Doug were using the "N" word, specifically. She reported the profanity (including DaBay's conduct) and/or the pornography via e-mail three times to CW management. She attended meetings with Wright, Beall, Denicoff, and/or Baxley during which she again informed them about the harassment. On these facts, there can be no question that, at a minimum, the EEOC established a genuine issue as to whether CW had actual notice of the hostile work environment. See Howard, 446 F.3d at 569 (one conversation with a human resources representative was sufficient to put the employer on actual notice); L&L Wings, 132 F.3d at 982 (an employer will be on actual notice of harassment if a victim makes "repeated, specific complaints" to managers); Katz, 709 F.2d at 255 (actual knowledge can be shown by "proving that complaints about the harassment were lodged with the employer"). The district court did not rule to the contrary. The EEOC also produced enough evidence to withstand summary judgment on the question of whether CW failed to take effective action to stop the harassment. The district court found that CW did enough to avoid liability. To be sure, this is not a case where the employer did nothing at all to address the workplace harassment. However, and most critically, a reasonable jury could find that CW's efforts largely proved ineffective in halting the harassment here. Despite Medley's repeated complaints and notwithstanding the steps CW took, the sex-based and race-based harassment continued. That is what is legally dispositive. See Sunbelt Rentals, F.3d at , 2008 WL 836409, at *10 (the question is whether the employer "knew or should have known about the harassment [by colleagues] and failed to take effective action to stop it" (emphasis added)). This Court recently noted that while "[c]ompanies cannot, of course, be charged with cleansing their workplace of all offensive remarks" neither does Title VII allow "constant and repetitive abuse." Id. at *9. This Court has also observed that "[w]here, as here, the employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment, the burden on the employer seeking to avoid liability is especially heavy." Katz, 709 F.2d at 256. The gist of the Commission's hostile work environment claim is that Medley was subjected to constant epithets such as the "N" word and the "B" word. Medley made repeated verbal complaints to Wright and Denicoff about these slurs beginning from the time she first went to work in Inside Sales. Notably, CW's initial response to Medley's complaints was to ignore them and blame her for being overly sensitive. Wright apparently did not know what to do about it. Even after Medley e-mailed Wright on September 24, 2004, specifically complaining about the profanity and pornography in the department, Wright did nothing (contravening CW's own anti-harassment policy requiring supervisors to escalate complaints of harassment up the company chain). When asked why she did not follow through on Medley's complaint, Wright did not have an answer. It appears that after Medley continued to complain, Wright did eventually tell Medley's co- workers to stop using profanity. This did not solve the problem, however. Medley testified that after she complained to Wright, the use of profanity - including racial slurs - escalated (e.g., her co-workers responded by "kicking it up a notch"). Medley also said she stopped complaining about Tony's use of the "N" word, specifically, because she had already complained over and over to no avail. More troubling, Denicoff responded to Medley's complaints initially by "shrug[ing] [them] off" with comments like, "You should expect that type of language and conduct when you work with a bunch of guys" and, "[a]t this point in your life you should be use[d] to profanity." After Medley had put numerous complaints in writing, Denicoff did hold a meeting in which he emphasized CW's policy against profanity in general and racial slurs in particular. However, even this appeared to be a half-hearted effort. Denicoff merely told Inside Sales that he would "prefer" that they not use profanity and that it "needs to be reduced," but that he understood that a curse word would "get out" every once in a while and he would not be "writing people up every time . . . ." Most importantly, Denicoff admitted that even after this meeting, the most notorious offenders of the policy (Tony, Mike, and Doug) "didn't get it." Denicoff indicated that Medley's co-workers continued to violate company policy by using racial slurs. Denicoff testified that he had a "tough" meeting with Mike and warned him repeatedly about his use of profanity - all to no effect. Denicoff said that even after the October 7, 2004, meeting on CW's profanity policy, Mike continued to curse. Denicoff said he told Mike "you're this close buddy" multiple times. However, Denicoff never then followed through by a issuing written reprimands or taking any other adverse action against Mike. Denicoff apparently was never going to fire Mike for this conduct either. He waited until he had another excuse (until Mike failed to show up to work) before discharging him. Similarly, DaBay never was given any written reprimand for his outrageous conduct at all. The district court thus erred in ruling as a matter of law that the perpetrators of the harassment "were reprimanded in an appropriate fashion by the defendant." (JA502) Medley also was exposed to pornography daily from the time she first started working in Inside Sales in September 2004, and she complained about it immediately. Yet it took over a week and a half after Medley first complained in writing before Mike's screensaver was removed. Even though Medley originally had hope that Denicoff and Baxley were committed to resolving the issues, she was forced to file additional written complaints. She even told Denicoff and Baxley that they had "done nothing about her original complaint." It took almost another two weeks - and another written complaint - before Mike's Playboy calendar, magazines, and poster were eliminated from Medley's work environment. During this period it appears Wright knew Mike still had a pornographic calendar on his desk and allowed him to keep it anyway. Further, Wright completely ignored Medley's first complaint about the pornographic sounds coming from Mike's computer. She never told Denicoff about Medley's complaints (again, in violation of company policy). Denicoff told Medley he doubted Mike could really have been viewing pornography at work. And even after Medley lodged a written complaint about the pornography and CW removed Mike's internet access, Mike somehow eventually resumed playing it on his work computer and Medley continued to hear it. The district court was thus incorrect in ruling that CW eliminated the pornography "within a matter of days." (JA502) On these facts, it was improper for the district court to conclude as a matter of law that CW was not negligent here. See, e.g., Sunbelt Rentals, F.3d at , 2008 WL 836409, at *11 (even if supervisors take corrective steps like warning coworkers not to utter epithets and conducting cursory investigations of incidents of harassment, summary judgment is inappropriate where the company "failed to take additional action that a rational juror might consider reasonably calculated to end the harassment" (emphasis added)). A jury easily could conclude that the actions CW took did not end and were not reasonably calculated to bring about an end to the gender-based and race-based harassment in Inside Sales. See, e.g., Howard, 446 F.3d at 567 (holding that for purposes of this inquiry, "[w]hat is most important is that there were no further instances of harassment after th[e] date" remedial action was taken); cf. Spicer, 66 F.3d at 711 (explaining that liability ceases only "when an employer's remedial response results in the cessation of the complained conduct" (emphasis added)). Further, CW took no steps reasonably calculated to prevent and correct the traumatic events that occurred on November 10, 2004. DaBay had a history of "screaming and yelling" and of "blow[ing] up at" and "cuss[ing] out" co-workers. Medley, who was aware of DaBay's reputation and had witnessed his outbursts firsthand, told Wright she did not feel comfortable seeking DaBay's help in finding the missing lock pieces. Wright made her go anyway. Thus, even though Medley had lodged numerous complaints about sex-based and race-based slurs generally and expressed concern about DaBay's conduct, specifically, Medley was forced to endure an unprovoked and vicious verbal attack from DaBay. Cf. Howard, 446 F.3d at 570 n.10 (providing that the adequacy of the "employer's response must always be viewed in light of what it actually knew or should have known at the time of its response"). DaBay exploded at Medley - in public, in plain view of co- workers, CW managers, and possibly even customers - calling her multiple outrageously offensive names and intimidating and threatening her. Even though various CW executives (e.g., CW's Vice President of Warehouse & Production, CW's Transportation Manager, and CW's Sales Manager) overheard and/or witnessed part of DaBay's tirade, they failed to step in to stop it. Most notably, Vice President Grauel, who had attended Denicoff's profanity meeting and thus knew that the use of racial and sexist slurs was an ongoing concern at CW, did absolutely nothing that day to track down DaBay, discipline him, and/or halt the attack. When Wright went to confront DaBay about his conduct, he continued to utter epithets about Medley (e.g., called her "the stupid bitch" right to Medley's supervisor's face) without repercussion. After Medley finally took refuge in Starner's office, she even overheard Wright laughing about what had happened. CW never reprimanded DaBay in any meaningful way (e.g., simply "asked him to do his best in the future not to yell or curse"). On these facts, a reasonable jury could conclude CW acted negligently in failing to prevent and correct this harassment. See Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (an employer is liable where it "took no prompt and adequate remedial action" (internal quotation marks omitted) (emphasis added)); Katz, 709 F.2d at 256 (employer can be liable if it took "no effectual action to correct the situation" (emphasis added)). In sum, the evidence raised at least a genuine issue as to whether CW did enough to halt the harassment in question. The district court thus erred in refusing to submit this question to the jury. See Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (the "adequacy of an employer's remedy is a question of fact which a court may not dispose of at the summary judgment stage if reasonable minds could differ as to whether the remedial action was 'reasonably calculated to end the harassment'" (quoting Katz, 709 F.2d at 256)). CONCLUSION For all the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's grant of CW's motion for summary judgment on the EEOC's hostile work environment claim, and remand this case for trial. REQUEST FOR ORAL ARGUMENT Given the importance of this appeal to the proper interpretation of Title VII and the EEOC's enforcement efforts, we respectfully request oral argument. Respectfully submitted, RONALD S. COOPER General Counsel VINCEN 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 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 13,990 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. ______________________________ 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: April 30, 2008 CERTIFICATE OF SERVICE I certify that on April 30, 2008, I served the requisite number of originals/copies of this brief by mailing them via Federal Express overnight delivery to: Clerk of Court United States Court of Appeals for the Fourth Circuit Lewis F. Powell, Jr. United States Courthouse Annex 1100 E. Main Street, Suite 501 Richmond, VA 23219-3517 Fred Saul Sommer Meredith Sarah Campbell Shulman, Rogers, Gandal, Pordy & Ecker, PA 11921 Rockville Pike Suite 300 Rockville, MD 20852-2743 ______________________________ 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> All references to "R." are to the corresponding entry on the district court's docket sheet. All references to "JA" are to the corresponding page in the parties' Joint Appendix. <2> She said "I can't recall if he used the N word every day, but there was always profanity in the office every day." (JA78) <3> At one point in her deposition, Medley did say that she never complained about the nooses in the workplace because she "wanted to keep some type of good relationship instead of La Tonya complained about this and La Tonya complained about that . . . ." (JA99-100) However, later in her deposition, she indicated that she had "said something" about Tony's and DaBay's dolls to Joanne Starner, who had been Medley's supervisor when she worked in the Customer Service department. (JA16,329,348) <4> Medley also took some sheets from the Playboy calendar and photocopied them. (JA168-171,344) <5> However, Mike testified that he was never told that he was being terminated because of any "other issues." <6> She said she did not specifically indicate that he used the "N" word in her EEOC statement because she "didn't feel comfortable writing the word down." (JA40) <7> Wright would later tell Denicoff and Baxley that Medley had said DaBay had called her a "fucking bitch" and said she was "fucking stupid." (JA260,267) Wright said that when she asked DaBay about the incident, he called Medley "the stupid bitch." (JA260,398) Wright testified that she could not remember her response when DaBay told Wright he had called Medley a "stupid bitch." (JA398) Wright was asked in her deposition if DaBay's name-calling made her upset. She replied "[n]o." (JA398) <8> The district court also noted that none of the slurs were ever "spoken directly to the plaintiff" until the DaBay incident. (JA503) This is hardly legally dispositive. The relevant inquiry here is whether Medley's environment had become hostile or abusive. Derogatory sex-based and race-based comments and conduct not targeted at her directly still can transform the environment into a hostile or abusive one. See Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2175 (2007) (explaining "the actionable wrong is the environment" (emphasis added)); Meritor, 477 U.S. at 65 (holding Title VII "affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult" (emphasis added)); Harris, 510 U.S. at 19 (considering harassment directed at both plaintiff and her female co-workers); Sunbelt Rentals, F.3d at , 2008 WL 836409, at *8 (explaining "[w]e are, after all, concerned with the 'environment' of workplace hostility" and "comments made to others are also relevant to determining whether [the victim] was subjected to severe or pervasive" harassment (internal quotation marks omitted)); Spriggs, 242 F.3d at 184 (stating "there is no support in the law" for the proposition that harassment directed only at others cannot help create a hostile work environment); Jennings v. Univ. of N.C., 482 F.3d 686, 695-96 (4th Cir. 2007) (providing that "[e]vidence of a general atmosphere of hostility toward those of the plaintiff's gender is considered in the examination of all the circumstances" and sex-based comments - "even if not directed specifically to the plaintiff" - are "relevant to determining whether the plaintiff was subjected to sex- based harassment"); see also C.H. Robinson Worldwide, F.3d at , 2008 WL 1848882, at *4 (holding use of sex-specific and race-specific epithets satisfies the "based on" sex/race element "even when the language does not target the plaintiff"). <9> In addition, even though Medley chose not to complain about the mop-head dolls to Wright or Denicoff, CW still should have known about this noose in its workplace. It apparently was clearly visible in Tony's office, hanging from a file cabinet. A reasonable jury could conclude that Wright - whose office was next to Tony's - must have seen it. In addition, Medley indicated that she told Starner (a CW supervisor) about the dolls at one point. See Ocheltree, 335 F.3d at 334 (explaining that an "employer cannot avoid Title VII liability for coworker harassment by adopting a 'see no evil, hear no evil' strategy" and "[k]nowledge of harassment can be imputed to an employer if a 'reasonable [person], intent on complying with Title VII, would have known about the harassment'" (quoting Spicer v. Va. Dep't of Corr., 66 F.3d 705, 711 (4th Cir. 1995) (en banc))).