____________________________________________ Appeal No. 07-1123 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. SUNBELT RENTALS, 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 CAROLYN L. WHEELER 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 7020 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 . . . . . . . . . . . . . . . . 24 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 27 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 Ingram was Subjected to a Hostile and Abusive Work Environment Because He Is a Muslim . . . . . . . . 32 C. The EEOC Produced Sufficient Proof to Permit a Reasonable Jury to Find that Sunbelt Knew About the Religion-Based Harassment but Failed to Take Prompt Corrective Action to Remedy It . . . . . . . .46 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . 59 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 Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995). . . . . . . . . . . . 39 Baqir v. Principi, 434 F.3d 733 (4th Cir. 2006). . . . . . . . . . . . 33 Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001). . . . . . . . .55-56, 58 Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994). . . . . . . . . . . . 46 Brown v. Perry, 184 F.3d 388 (4th Cir. 1999). . . . . . . . . 56, 58 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . . . . . 55 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . 31 Chacko v. Patuxent Inst., 429 F.3d 505 (4th Cir. 2005). . . . . . . . . . . . 39 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001). . . . . . . . . . . . . . . 44 Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179 (4th Cir. 2000). . . . . . 43, 44, 45-46 Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995). . . . . . . . . . . . 50 EEOC v. R&R Ventures, 244 F.3d 334 (4th Cir. 2001). . . . . . . . . 33, 39 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . . . . 55 Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007). . . . . . . . . . . . 46 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . 32-33, 35-36, 41, 42, 44-45 Harris v. L&L Wings, Inc., 132 F.3d 978 (4th Cir. 1997). . . . . . . . . 47, 50 Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180 (4th Cir. 2004). . . . . . . . . . . . 33 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). . .46, 47, 50, 53, 54, 55, 58 Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007). . . . . . . . . . . . 45 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983). . . 47-48, 49-50, 52, 55, 58 Knabe v. Boury Corp., 114 F.3d 407 (3d Cir. 1997). . . . . . . . . . . . 50 Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006). . . . . . . . . . . . 31 Lissau v. S. Food Serv., Inc., 159 F.3d 177 (4th Cir. 1998). . . . . . 35, 55, 56, 58 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . 31 Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . . . . 32, 42 Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999). . . . . . . . . . . . 46 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003). . . 46, 48, 49, 56, 58 Oncale v. Sundownder Offshore Servs, Inc., 523 U.S. 75 (1998). . . . . . . . . . . . 36, 43, 45 Pa. State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . . . . . . . .40, 41 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989). . . . . . . . . 50, 58 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . 31-32, 43, 45 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000). . . . . . 33-34, 46, 56 Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997). . . . . . . . . 42 Smith v. Sheahan, 189 F.3d 529 (7th Cir. 1999). . . . . . . . . . . . 44 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). . . . . . 39, 40, 46 Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987). . . . . . . . . 51-52 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). . . . . . . . . . . . . . . 32 White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 2004). . 39-40, 40-41, 55-56, 57, 58 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 TABLE OF AUTHORITIES (con't) Rules Fed. R. Civ. P. 56. . . . . . . . . . . . . . . . . . . . . 31 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 Sunbelt Rentals, Inc. ("Sunbelt") 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.12; JA9-14.)<1> 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, 2006, the district court entered final judgment against the EEOC disposing of all claims. (R.57; JA895.) The EEOC filed a timely notice of appeal on February 2, 2007. (R.62; JA896-97.) 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 Clinton Ingram was subjected to a hostile and abusive working environment because of his religion (Islam). 2. Whether the EEOC proffered sufficient proof at summary judgment to permit a reasonable jury to find that Sunbelt knew about this religion-based harassment but failed to take appropriate action to prevent and correct it. STATEMENT OF THE CASE On May 13, 2005, the EEOC filed an amended complaint in the district court, alleging that Sunbelt violated Title VII by subjecting Ingram to a religion- based hostile work environment. (R.12; JA10-11 7-8.) The EEOC contended that Sunbelt also retaliated against Ingram unlawfully by disciplining and discharging him because he had complained about the harassment. (R.12; JA11 9.) The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs. (R.12; JA12-13 A-I.) The Commission also requested a jury trial. (R.12; JA13.) Sunbelt filed an answer to the EEOC's complaint on June 1, 2005. (R.14.) Sunbelt later filed a motion for summary judgment asking the district court to dismiss the EEOC's claims. (R.49; R.55.) The Commission responded to this motion on June 19, 2006. (R.53.) The district court held a hearing on Sunbelt's summary judgment motion on December 1, 2006. (R.59; JA821-93.) At the conclusion of this hearing, in an oral ruling from the bench, the district court granted Sunbelt's motion. (R.59; JA892.) On December 4, 2006, the district court entered final judgment against the EEOC on all claims. (R.57; JA895.) This appeal followed. (R.62; JA896-97.)<2> STATEMENT OF FACTS A. Background Sunbelt is a company that rents construction equipment. (JA474.) In October 2001, Sunbelt hired Ingram to work as a truck driver based out of its Gaithersburg, Maryland location. (JA25,472.) In June 2002, Ingram was promoted to "rental manager." (JA25,28,31-32,585-86.) As a rental manager, Ingram worked at and around a rental counter in the Gaithersburg "showroom." (JA300,316,481.) Rental manager Dave Gray worked at the rental counter to Ingram's left, and rental manager Hank Parater worked to Ingram's right. (JA194,425,629-30.) The "lead rental manager" was Barry Fortna. (JA269,347-48,652.) Sunbelt's shop foreman was Mike Warner. (JA496.) The overall manager of Sunbelt's Gaithersburg location was Steve Riddlemoser. (JA355,488,511.) When Riddlemoser was absent, Warner was the "acting manager." (JA40,41,510,549,647-48.) If both Riddlemoser and Warner were gone, then Fortna was the manager of the store.<3> (JA510-11.) Sunbelt regional manager Eddie Dempster was Riddlemoser's boss. (JA303.) Ingram is a Muslim. (JA18.) Sunbelt employees knew he was a Muslim. (JA29,39,50.) Ingram was the only Muslim who worked at Sunbelt's Gaithersburg location. (JA585.) Numerous anti-Islamic incidents occurred, and a multitude of anti-Muslim remarks were made to and around Ingram at Sunbelt, starting from the time he was first hired as a driver and continuing throughout the period he was a rental manager. (JA30,65.) Gray said "[i]t is a fact that there was a lack of respect for [Ingram] and his religion." (JA169.) According to Gray: our work associates had no respect for Clinton being a Muslim. I think it was a result of current events in the news. I don't think Clinton would have had a problem if it had not been for the events of September 11th and the sniper attacks in our area. It is a fact that derogatory comments and statements were made to Clinton in the workplace regarding his religion. Because he took it so personally,<4> it made things worse and like little children, the guys gave him a hard time. . . . Such comments were made often and Clinton would become angry. (JA168.) Fortna testified that after September 11th, "all the employees made comments referring to the Taliban." (JA107.) A Sunbelt employee named "Chad" said that "right after" September 11th, there "were a lot of employees talking about each other's religion. . . . Like Muslim religion is bad." (JA190.) When asked who, specifically, was talking about it, Chad testified "[e]verybody in the shop. Dave [Gray]. I guess some of the mechanics." (JA190.) Ingram described a cartoon posted in the dispatch area on the wall. (JA53,521-22,583,588-89.) It depicted a Muslim instructor and several other characters "dressed in Islamic or Muslim attire" (such as Kufis). (JA53,521.) In the picture, the instructor had a bomb strapped to his body. The script was "okay, pay attention" and "I'm only showing you . . . how this works once." (JA53,521.) Ingram complained about the picture to the Sunbelt dispatcher. (JA522.) Ingram then took the clipping off the wall and threw it away. (JA522,599-600.) One day while a television was playing in the showroom, it was announced on the news that the D.C.-area snipers had been captured. (JA158,169.) A Sunbelt employee named "Ron" looked at Ingram and "shouted," in front of all of the others present, "I should have known they were Muslims." (JA158,169.) An employee named "Sal" ridiculed Ingram because of his religion. Ingram testified Sal "made statements as if he knew my religion" and "then he would attack it" by stating that he considered Ingram to be a member of the Taliban. (JA49.) Sal referred to Ingram as a member of the Taliban "at least twice." (JA49.) According to Ingram, Sal said "I see you're a Muslim . . . [and] it's like you don't know whose side you're on." (JA50.) Sal was "yelling" at Ingram and said "you need to pick a side. You need to let me know. We are - I'm trying to figure out whose side you're on . . . are you on our side or are you on the Taliban's side[?]" (JA50,51.) Ingram responded "I am not for the Taliban. . . . I'm an American and I'm a Muslim, that's my stance." (JA50,51.) Another time, Sal told Ingram "if you don't like American policy" or "you don't like America or where we stand, you can just leave." (JA518.) Sal made these comments in front of other co-workers. (JA517,518.) Ingram said this made him "very uncomfortable." (JA51.) Ingram testified that he "reported [these comments] to Mike Warner, [Sal's] boss or the shop foreman." (JA49,517.) Ingram said that Sunbelt employees including Warner, Fortna, and Gray would make comments about his appearance. (JA504-05.) For example, they would comment about his beard, which he wore because of his religion. (JA29,43.) They (like Sal) would make remarks such as "you look like the Taliban." (JA30.) Ingram testified that Warner, specifically, said Ingram looked like the Taliban and "made fun of" Ingram's religion. (JA39.) Ingram was asked how many times Warner told him that he looked like the Taliban, and Ingram replied "I don't know how many times," but it was "the majority of the times that he would state something about my appearance or my religion. He threw in Taliban." (JA42.) He said Warner "always" would say "your appearance and you look like a Taliban." (JA42.) When he was asked how many times Warner made comments about Ingram's appearance, Ingram answered "I can't count them." (JA42.) Ingram said "it happened at least more than 10 or 20 times." (JA42-43.) He said it was "repeated over and over again." (JA43.) Warner also called Ingram a "towel head" on "at least one occasion" (though Ingram could not "recall by the number how many times he used that specific word"). (JA42,501.) Gray testified that Warner called Ingram a "towel head, and that's derogatory, referring to him being Muslim." (JA156,168.) Fortna also testified that he heard Warner call Ingram a "towel head" when Ingram was not present. (JA101-03.) Fortna was asked in his deposition if he told Riddlemoser about Warner calling Ingram a "towel head" and Fortna said no. (JA103.) When asked why not, Fortna replied "Warner is a supervisor level and, as such, above me. So I don't get into that."<5> (JA103.) Fortna did not tell regional manager Dempster about the remark either. (JA103.) Ingram explained that Gray "insulted me" by stating "you're not genuine" and "you're a fake Muslim, about me wearing a beard." (JA43.) Ingram said Gray "was saying it in front of customers who were of Arab descent, who may or may not have been a Muslim." (JA43.) Ingram had problems with Gray commenting on his religion and appearance "like an ongoing thing, daily . . . ." (JA44.) Ingram testified that Gray, Warner, and Fortna also made fun of Ingram because of his Kufi, which Ingram wore because of his religion. (JA29,43.) They said "that thing on your head" (like his beard) made him "look like a Taliban." (JA501-02.) They also made remarks like "you're going to have to take that thing off of your head" because it was "not part of Sunbelt's uniform." (JA29,30,502.) Ingram told his co-workers that he wore his beard and Kufi because "I'm a Muslim" and "it's part of my religion." (JA502.) Ingram said Sunbelt employees made these remarks about his Kufi, and he was thus forced to defend wearing it, "several times." (JA29.) On one occasion, when Ingram was still a driver, Gray held a stapler in his hand and said "Clinton, if anyone upsets you pretend this stapler is a model airplane [and] just toss it in the air, just repeatedly catch it, just don't say anything." (JA52.) Ingram testified that Gray said this "[t]o connect me and my religion as terrorists [similar to] the ones who . . . basically took the planes that smashed into the buildings on September 11th." (JA52.) Ingram then asked Gray "[w]hat are you trying to say, that Muslims are terrorists?" (JA524.) Another time, Gray had a metal detector (a piece of equipment customers sometimes would rent) in his hand. When Ingram walked by, Gray raised it near Ingram "towards my head garment" and called Ingram a "fake ass Muslim want-to-be turbine [sic] wearing ass." (JA54.) Co-worker Parater also showed disrespect for Muslims and "would comment about [Ingram's] faith and slander it." (JA55-56,491.) Parater "would do so in front of co-workers and customers by stating things [that] weren't true" about Islam. (JA55-56.) According to Ingram, Parater "would make very ignorant comments about my religion, and then he would joke about it and he would . . . make comments about how many wives a Muslim can have . . . in front of customers" (e.g., Parater said he wanted to be a Muslim so he could "have eight or ten wives").<6> (JA55,56,490-91.) Ingram said Parater made these "ignorant comments" "several" times. (JA491.) Ingram told Parater "don't speak about my faith if you're not going to say the truth about it." (JA56.) Ingram said "if you want to state something about my religion state the truth about it, and I complained." (JA491.) Parater also "pointed out Muslims, how specifically from the Arab world that we should just go to . . . Saudi Arabia and - and kill them all. And he . . . said F-them, F-em all." (JA56.) In January 2003, Parater said "[w]e should go to Saudi Arabia and blow all of them up." (JA541-42.) Ingram said this showed Parater's "disrespect towards Muslims." (JA56.) Ingram said Saudi Arabia "is where Mecca is" - "where Muslims go for Hajj, the pilgrimage to pray, and that is the place of concentration used by Muslims." (JA542.) Ingram's faith requires him to pray multiple times a day for five to ten minutes. (JA23,172,195.) Accordingly, Ingram would go pray in a quiet and clean file room upstairs from the showroom. (JA466.) Sunbelt let Ingram leave work every Friday at 1:00 p.m. for about an hour to go to the local Mosque for "congregational prayer." (JA466-68.) Ingram did not miss any of his required prayer sessions while working at Sunbelt. (JA471.) Nevertheless, on certain occasions, Ingram "was harassed about going to pray." (JA23,24,26.) On November 8, 2002, a mechanic named "Bob" told Ingram that shop foreman Warner had said "if I catch him like that" - meaning praying at the workplace - "it would be the end of him." (JA41,81,218,583.) When Ingram was a driver, the Sunbelt dispatcher gave Ingram a hard time about going to congregational prayer on Fridays. (JA24-25,465.) Later, when Ingram was a rental manager, Gray "harassed [him] about prayer . . . several times." (JA26.) Gray said "I just didn't like it." (JA162.) Gray told Ingram he "can't be just taking off to go to prayer" and "[y]ou need to be here on the front desk, you know, doing your job."<7> (JA27.) Ingram said Gray "made that statement many times." (JA469.) Gray admitted to complaining to Riddlemoser about Ingram's prayers. (JA163.) Gray told Riddlemoser "it's not fair that he just walks away whenever he wants to, to pray, and leaves me to . . . take care of the counter." (JA163.) Parater also told Riddlemoser he thought it was "unfair" (and complained to Gray and Fortna about it, as well). (JA198-200.) Gray also told Ingram it was a "problem" for him to read the Koran at work - and complained to Riddlemoser that Ingram was doing so - even though Gray acknowledged "everybody" read non-work- related materials during the work day. (JA414,422-23,470.) Ingram said Fortna worked "to the right or the rear of me" and "would hear these conversations." (JA27.) He would "just give me a certain look like, you know, what do you want me to do about it[?]" (JA27.) When Warner and Gray made comments about Ingram's appearance (e.g., making fun of his beard and Kufi and calling him "Taliban"), Fortna also was present. (JA71,73.) Ingram said he did not recall Fortna making any comments in response, but "I remember laughter . . . from the work area." (JA72.) Fortna never told the employees to stop laughing at Ingram's expense. (JA72.) Fortna never said anything to Gray about his anti-Muslim comments. (JA73.) Ingram said that these anti-Muslim remarks were made "in the work area of Steve Riddlemoser, who was in . . . his office, so he was present also." (JA72.) Ingram also complained directly to Riddlemoser about the comments Warner made about his appearance. (JA47-48,514.) Ingram testified that Riddlemoser did not do anything about it (except discuss getting Ingram his official Sunbelt hat). (JA514.) Instead, at one point, Riddlemoser told Ingram that the "guys are just testing you to see what you're about, don't sweat it." (JA545.) Various customers also "had no respect" for Ingram because he was a Muslim. (JA154.) Gray said "they look[ed] at Clinton and you could just tell they had no respect for him." (JA154.) Ingram indicated that customers were rude and verbally abusive, and insulted his faith. (JA57,532.) One customer laughed when Ingram left to pray. (JA400.) Another told Ingram he looked like the Taliban. (JA57.) Gray heard this and reported the customer's comment to regional manager Dempster. (JA57.) Dempster "just said okay." (JA57.) He "didn't come up front, come forward or anything." (JA57.) A Muslim customer named Abolhassan Nejati testified that, before and after September 11th, Nejati would go to Sunbelt to rent equipment and Gray would routinely refer to him as "sun nigger," "terrorist," "Bin Laden," "Hezbullah," "Ayatollah," "Saddam Hussein," and/or "Kadaffi." (JA178,179-88.) Gray called him these names "so many times" - "every time . . . I was dealing with Dave [Gray]." (JA180,184,185-86.) Nejati said that Sunbelt employees "always" greeted him with these epithets. (JA178,186.) Nejati said "sometime[s] [the] manager was there, he was laughing, you know? I don't know why [the] manager didn't do anything." (JA178.) Fortna was present when Gray made some of these comments and would "smile" about it. (JA179.) Fortna said he remembered Gray referring to Nejati (whom Fortna knew was Muslim) as "Kadaffi." (JA104- 06,123.) Fortna could not remember if Riddlemoser was present for this incident, and he did not tell Riddlemoser about it. (JA105.) Various other incidents occurred which were not overtly religion-related. Someone wrote "dumb ass" on one of Ingram's business cards and left it in the front of the business card holder on the rental counter. (JA47,80.) Co-workers were "walking by and pointing to the card." (JA40.) Warner said "I did it, what are you going to do about it?" (JA40,47,80.) Ingram told him he was going to report it to Riddlemoser, and Warner replied "what's Steve going to do about it?" (JA40,80,502.) Ingram said this "frustrated him" because Warner was the "so- called acting manager and he's showing lack of care." (JA41.) One time someone took Ingram's business cards and timecard and threw them on the floor near the trash can. (JA80.) Ingram's timecards would sometimes just disappear. One time, after Ingram accused Warner of taking his timecard, Warner called Ingram a "towel head." (JA168.)<8> Ingram said his timecard often would be hidden on Fridays - the day Ingram left work to go pray at the Mosque. (JA73-74.) On one particular Friday, someone hid his timecard five separate times. (JA80.)<9> Ingram complained to Riddlemoser about it, and Riddlemoser told him just to "go ask the guys up front have they seen the card." (JA80.) Ingram waited for Riddlemoser to handle the problem but "nothing happened." (JA80.) Ingram's computer keyboard and cords were disconnected inexplicably. (JA538,540.) Ingram said his computer was "taken apart . . . so I couldn't do my job." (JA82.) Anonymous employees also caused Ingram's computer to freeze or lock up. (JA539-40.) Fortna testified that he sometimes "intentionally" made other employees' computers "pause" as a "prank." (JA91-92.) Fortna said he "probably" did this to Ingram's computer. (JA93.) Fortna also admitted to unplugging Ingram's computer. (JA115.) Ingram did not recall ever seeing any other employee's computer tampered with in this manner. (JA539.) Ingram complained to Riddlemoser about his keyboard freezing up. (JA446.) Sunbelt had an anti-harassment policy. (JA141-43.) It stated that Sunbelt "will not tolerate harassment of Sunbelt's employees by anyone, including supervisor, co-worker, vendor, client, customer or other[s]." (JA141.) Under Sunbelt's policy, "[h]arassment consists of unwelcome conduct, whether verbal, physical or visual, that is based upon a person's protected status, such as their sex, color, race, ancestry, national origin, age, disability or other legally protected group status." (JA142.) The policy prohibited, among other conduct, "epithets, slurs, stereotyping or intimidating acts that are based on a person's protected status, and written or graphic material . . . posted within the work place that shows hostility towards a person because of his/her protected status." (JA142.) Per the policy: All Sunbelt employees are responsible to help assure that we avoid harassment. If you feel that you have experienced or witnessed harassment, you are to notify immediately a Supervisor or Human Resources. . . .<10> The Sunbelt Rentals policy is to investigate all such complaints thoroughly and promptly. (JA142-43.) Riddlemoser never received training on harassment and spent only about ten or fifteen minutes reviewing Sunbelt's anti-harassment policy. (JA653.) Riddlemoser acknowledged that, to lodge a complaint under the policy, all an employee had to do is "[j]ust report it to the manager." (JA654.) Riddlemoser also knew that under the policy complaints "are to be investigated." (JA653-54.) However, Riddlemoser testified "I wasn't trained, at that time, on conducting investigations." (JA250.) Ingram complained to Riddlemoser numerous times about the harassment he was experiencing. (JA80,253.) Riddlemoser admitted that Ingram complained to him on several occasions. (JA253.) Gray stated that "[w]henever anything that Clinton believed to be inappropriate was said or done to him, he immediately took his complaint to [Riddlemoser]." (JA169.) Gray indicated Ingram went "[s]traight to the manager, he's got to make a complaint." (JA403.) Gray also said "I don't think Clinton's complaints were really taken seriously because he complained so much."<11> (JA169.) Ingram also complained about the harassment to Dempster. (JA535-37.) Ingram spoke to Dempster several times and asked Dempster to consider transferring him to another Sunbelt location. (JA535-37.) Ingram told Dempster "I don't want to work at this station or at this store anymore, you know, because of what was going on." (JA535.) Dempster replied "well, we got to look into that." (JA535.) It appears Dempster never followed up on Ingram's transfer request. On Friday, November 15, 2002, after Ingram discovered his timecard was missing yet again, he called Sunbelt's human resources department to report the continuing harassment. (JA67.) He spoke with a human resources specialist named Stephanie Wilson. (JA66,558.) Wilson asked Ingram why he thought these things were happening to him. (JA553.) He indicated to her that "one, I'm the only black in this area, here, and second, I'm a Muslim.<12> And these things have been - have been ongoing." (JA553.) Ingram then faxed a complaint to Wilson detailing some of the harassment he had experienced. (JA64,67,79-86.) Ingram testified "I did not list in great detail everything that day, from the time I was employed." He said "I just briefly gave her . . . some of the events." (JA65.) Ingram said one reason for this was "time." (JA66.) Ingram also said that Wilson "did not request the total or all the history of events that had occurred." (JA66,553-54.) Ingram's written complaint stated he had complained repeatedly to Riddlemoser about the harassment in the past. (JA80.) Riddlemoser promised to "get to the bottom of this" but "nothing changed week after week after week." (JA80.) The complaint noted that "I made it very clear to the manager this is harassment and I am tired of it. [T]his is an unhealthy environment to work in." (JA82.) In her deposition, Wilson did not recall much at all about her response to Ingram's written complaint. (JA204-07.) Wilson did e-mail Riddlemoser stating: Clinton called today to voice concerns that someone in your branch has been harassing him. By harassing he means 1) leaving rude written messages (profanity) on his paperwork, 2) unplugging his monitor, 3) misplacing his timecard, 4) voicing physical threats against him to other employees, etc. He believes that this harassment is based on his religion (muslim)[.] He tells me that he has voice[d] his concerns to you on several occasions and nothing has been done. I cannot stress enough how important it is that you check into these all[e]gations. Discrimination or retaliation on the basis of religion is absolutely not to be tolerated. If indeed his allegations that someone in the branch is harassing him are true, and it is documented that he brought it to your attention and nothing was done, then we (Sunbelt) are held responsible for the offending employee's actions. (JA209.) Either Wilson or Riddlemoser apparently forwarded this e-mail to Dempster. On Sunday, November 17, 2002, Dempster e-mailed Wilson, stating "Clinton has never mentioned any of these allegations when I have bee[n] at the [Gaithersburg store].<13> What name did he give as the person harassing him? I will also be checking into the situation. Keep me in the loop." (JA208.) Wilson replied the next day: I just spoke with Steve. I advised him to sit down with Clinton today and have a documented meeting concerning Clinton's harassment concerns. And to also have a talk once again with those in the office who are 'giving Clinton a hard time'. Steve mentioned that Clinton has some performance issues. . . . To answer your question, the name Mike Warner appears more than once in Clinton's complaint. (JA208.) Dempster then met with Ingram about his written complaint. (JA561.) Ingram testified he "had a problem communicating with [Dempster]" and "felt like he was . . . pre-judging the situation." (JA58.) Dempster did not really "sit down and . . . ask [Ingram] what happened." (JA58.) Dempster later told him that they had interviewed other employees and "everyone's denying everything." (JA58,561.) Ingram then told Dempster, "well, it happened." (JA59.) Dempster did not recall doing anything else in response to Ingram's written complaint. (JA211.) Dempster said he called Riddlemoser and "asked him about this stuff" but "I don't remember what happened after that." (JA326.) Riddlemoser also met with Ingram. (JA262.) However, Riddlemoser could not recall when specifically the meeting took place, how long it lasted, or what was discussed. (JA262,263,660-61,664-67.). Riddlemoser also could not recall in much detail any other steps he took to investigate or respond to the complaint. He acknowledged he did not really do anything about the tampering with Ingram's computer because "I had no proof." (JA668.) Riddlemoser said he "probably" spoke about this issue with the other rental managers, but could not recall when he met with them or how long the meetings lasted. (JA668-69.) Riddlemoser admitted that Ingram had "complain[ed] to me a couple of times about somebody messing with his timecard." (JA245.) Riddlemoser said that Ingram said "somebody is moving it around. And . . . I'm like, well, unless I see them doing it I can't, you know, do anything about it." (JA245.) Fortna testified that there was never any investigation into who was responsible for the missing timecards.<14> (JA121.) Riddlemoser said he spoke with Warner for about ten minutes about writing "dumb ass" on Ingram's business card. (JA673-74.) He said Warner "said that he didn't write it on there, that he was tired of listening to Clinton whine about it and he said, I did it, what are you going to do about it, just to get him to shut up." (JA674.) Riddlemoser said "I'm sure I've asked several [other] employees" about this business card incident, too, but he could not recall who they were, when he met with them, or what he said to them. (JA675-76,680.) Riddlemoser never determined who defaced Ingram's business card. (JA677.) Mechanic Bob told Riddlemoser that Bob heard Warner threaten to bring about the "end" of Ingram if Warner caught Ingram praying at work. (JA247-48.) Riddlemoser spoke to Warner about this, but Warner "did not admit to it." (JA249.) Riddlemoser said he did not write Warner up "because I didn't have [any] proof." (JA249.) He said Bob's eyewitness account was not enough because "I would have needed to hear it from at least two people to make that assumption." (JA249.) Riddlemoser indicated he would need a "confession" to write someone up. (JA249-50.) Wilson e-mailed Riddlemoser on November 19, 2002, to find out how Riddlemoser's meetings with Ingram and other employees had gone. (JA217.) Riddlemoser replied that "someone wrote dumb ass on a rental [manager] card in front of his station." (JA217.) Riddlemoser also indicated that tampering with Ingram's computer "has happened before" and "could have been a number of things." (JA217.) Riddlemoser stated that the timecard problem and Warner's threat had "been addressed with everyone." (JA217.) Riddlemoser also wrote "I can tell you that none of these allegations are religious based." (JA217.) Riddlemoser stated that Ingram's "performance and personality are the only cause for the problems." (JA217.)<15> Riddlemoser said "we've allowed him to leave every Friday for an hour to pr[a]y due to his religion so I believe we've been very accommodating to him." (JA217.) Wilson replied asking whether Riddlemoser had talked to Ingram about "his performance issues[.]" (JA217.) Riddlemoser answered that he had told Ingram "not to take things so personal" and that if Ingram "maintain[ed] a positive attitude issues with customers and Sunbelt would roll right off his shoulder[s]." (JA217.) Ingram never spoke with Wilson again. (JA273-74.) Riddlemoser did not have any other contact with Wilson about Ingram's complaint either. (JA672.) Ingram also said Riddlemoser never reported back to him with the results of his interviews with other employees. (JA561.) Ingram testified that things "tapered off or calmed down" for "a short period" after he faxed his written complaint to human resources. However, Ingram stated, eventually "everything just basically started up again." (JA534.) At one point Ingram informed Dempster that "it's starting to happen again." (JA59.) Dempster then "accused me of seeing things that [weren't] there" and asked "Are you paranoid?" (JA58,59,227.) Dempster also asked "What are you trying to do, build a case against us?" (JA58,600.) Ingram replied "I'm just trying to work in a harassment-free environment. The other coworkers are not experiencing what I'm going through." (JA600.) Sometime around the end of December 2002, a Sunbelt employee named Wayne Wiles allegedly spat on Ingram's work station at the rental counter. (JA166-67,701.) A Sunbelt driver witnessed this incident, told Ingram about it, and reported it to human resources. (JA587,698-99,818.) According to Riddlemoser, Wiles told Riddlemoser he got some grease on the rental counter and then "pretended to spit like he was trying to clean it." (JA702-03.) However, Dempster testified Wiles told Dempster he had accidentally spilled coffee on the rental counter and then "pretended to spit on the counter and wiped up the coffee with his elbow." (JA312,818.) Dempster indicated "Clinton was fine with the findings. He said he was glad I looked into it and if there was no proof he was willing to move on." (JA818.) Ingram testified that Gray continued to harass him about his religion "until I refused to communicate with him." (JA44.) Ingram stopped talking to Gray after January 24, 2003, when the two of them got into an altercation in the showroom. (JA44,222,277.) That day, a small engine mechanic was operating a piece of equipment in the shop and the resulting smoke entered the showroom, making the work area hazardous. (JA44,69,192.) Ingram opened a window to air the showroom out. (JA192-93.) Gray closed the window - deliberately, according to Ingram, to "provoke[] me" and "get[] underneath my skin." (JA69,294.) A confrontation between the two ensued. (JA119.) Riddlemoser wrote-up Ingram, but not Gray, for the incident. (JA222,291.) On February 28, 2003, Sunbelt terminated Ingram in response to a customer complaint. (JA299.) A couple months later, one of Sunbelt's Muslim customers who had known Ingram, Aboulaye Komara, noticed Ingram was no longer working there. (JA170-72,176.) Komara: asked the gentlemen who assisted me about Clinton and he told me Clinton had been fired. He said that Clinton is a Muslim and he went on to say very derogatory things about Muslim people in general. He also said that Clinton prayed at work during his breaks and lunch and the store manager (no name mentioned) didn't like that. It was his opinion that all Muslims are associated with violence. I do not know the gentleman's name but he is an employee of Sunbelt Rentals who I have seen there on other occasions. (JA176.) B. District Court Decision In dismissing the Commission's hostile work environment claim, the district court stated that to be actionable, religion-based harassment has to be "sufficiently severe or pervasive to alter the conditions of [Ingram's] employment and create a hostile work environment." (JA872.) The district court then ruled that "the standard for proving abusive environment is high" and the "conduct must be extreme." (JA873.) It observed that: [t]he rental equipment business . . . is perhaps a little more rough and ready than, let us say, the Century Club of New York of which fine ladies are members. . . . [D]issatisfaction, annoyances, coarse language, unkind remarks are not really out of place in some businesses and I suspect this is one business where that might be . . . . (JA873.) According to the district court: [t]he case law is replete. It has to be substantial and severe. And the fact that very unwelcome, unpleasant remarks are made to people, whether it's about their religion or their gender or their nationality, that's part of the mix of the world, and whether it's a good thing to do or bad. And it's unfortunate that some people have to suffer them, but they have to be so pervasive and severe that they would - any reasonable person would find them intolerable. (JA889.) The district court pointed out that some of the incidents at issue (such as writing "dumb ass" on Ingram's business card and hiding his timecards) "obviously in and of themselves are neutral" and not "related to his religion." (JA889.) With respect to the rest of the comments and conduct, the district court acknowledged that they were "anti-Muslim." (JA889.) However, the district court reasoned, "people are making a lot of unpleasant remarks about Muslims these days [and] . . . [i]t's unfortunate that they do." (JA889.) "There is a reality out there that some Muslims have been involved in some of these unpleasant activities and some people in less than genteel manner have made remarks about it." (JA889-90.) The district court stated: [t]he question is whether here these random remarks by co-workers in an equipment rental business amount to that level. There's a lot of coarse behavior that goes on in the workplace. And [I] suggest to you [there is] more likely to be coarse behavior in a setting like this than there would be necessarily in a setting of a dance class or something of that order. People use coarse language back and forth. They tease, they poke, they provoke each other back and forth. And there's a lot of that that goes on that clearly is not necessarily related to some sort of illegal employment discrimination. (JA890.) The district court then indicated that even if the harassment in question was serious enough to be actionable, there was no basis for holding Sunbelt liable for the conduct of its employees in any event. The district court stated that "[v]irtually all of these remarks that are made . . . are made . . . prior to the filing of the . . . human relations complaint and they're not raised by Ingram himself in that complaint." (JA890-91.) According to the district court: The allegation here is that Riddlemoser was the person to whom Ingram complained and he didn't do anything about it. And yet . . . the Court with these unspecified number of [verbal] complaints is asked to find that a prima facie case is made. The problem with this is that any number of employees could come in and say, I complained again and again and again. There's a record of a complaint and they didn't do anything, and therefore I made my prima facie case. The only thing that can allow me to judge that I think that this is either the complaints were not made as Ingram now complains or they were not sufficiently severe, is that he didn't raise them in his complaint in writing to the . . . human resources department of the employer. (JA891.) The district court stressed that Sunbelt had "an anti-harassment policy in place and it would not be tolerated." (JA891.) Thus, "the only suggestion that they didn't act is because there are verbal complaints were not acted upon." (JA891.) In addition, the district court determined: [t]here is no dispute that there was some follow-up with regard to the time cards and the other issues, and that Riddlemoser did look into this to some extent and basically said to . . . Ingram, You look into this thing and tell them not to do this or he looked into this and basically said, We don't tolerate this kind of activity. It's not clear what more could ever be done by an employer in this circumstance if co-employees are . . . playing these kinds of pranks, which independently don't have any nexus with religion, but are simply part of the flow, if you will, of a sometimes rough and ready business such as this is. (JA891-92.) 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 Ingram was subjected to harassment that was unwelcome, based on his religion, and severe or pervasive enough to alter the conditions of his 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 Ingram worked at Sunbelt he was the object of an almost-daily barrage of derogatory and humiliating anti-Muslim jokes, slurs, and epithets and at least one physical threat. This serious and incessant mistreatment was perpetrated by Ingram's co-workers and customers alike (and even by Sunbelt supervisors on occasion). The harassment unquestionably was unwelcome. Most of it was explicitly anti-Islamic. Ingram 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 the harassment had to be "so pervasive and severe that . . . any reasonable person would find it intolerable." The Supreme Court has explicitly held that harassment need not result in psychological harm and only has to be severe or pervasive to be actionable. Second, the district court also held - erroneously - that the incidents at issue were not sufficiently serious because they occurred in the "rough and ready" equipment rental business (as opposed to a "dance class"). While the social context of the workplace clearly is relevant to determining whether the environment has become hostile or abusive, this Court has ruled that there is no "assumption of the risk" defense to illegal harassment - and that a prevailing workplace culture cannot excuse otherwise discriminatory acts. Third, the district court concluded - inappropriately - that the anti-Muslim harassment in this case was mere "random" teasing. At summary judgment, the district court was required to consider the entire record, which revealed that the anti-Muslim abuse Ingram suffered was anything but sporadic or harmless joking. The district court thus erred in holding that the EEOC had not created a genuine issue as to whether Ingram's colleagues and customers subjected him to an unwelcome abusive and hostile work environment because of his religion. To survive summary judgment, the EEOC also had to raise a jury question as to whether Sunbelt could be held legally responsible for this anti-Muslim 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. Here, Ingram complained repeatedly to Riddlemoser about the harassment. Dempster, Warner, and Fortna - all Sunbelt managers - witnessed, were told about, or participated in it. In addition, the sheer quantity of anti-Muslim insults and slurs would have put any reasonable employer on notice that Ingram was being harassed because of his religion. There is thus a jury question as to whether Sunbelt had actual or constructive notice of the harassment. There is also a genuine issue as to whether Sunbelt failed to properly respond to it. Sunbelt ignored Ingram's repeated verbal complaints about the abuse. It did virtually nothing to address the harassment until Ingram filed a written complaint with Sunbelt's human resources office. Even then, Sunbelt's response was markedly deficient. Its "investigation" was incomplete (at best) and its follow-up was feeble. Indeed, whatever steps Sunbelt took after Ingram's written complaint were completely ineffective, as a reasonable jury could find that Sunbelt's co-workers and customers continued to mistreat Ingram because he is a Muslim until he was discharged. The district court refused to hold Sunbelt responsible for this negligence, criticizing Ingram for merely making an "unspecified number of verbal complaints." However, nothing in this Court's case law (or even in Sunbelt's own anti-harassment policy) requires an employee to provide written notice to the employer that he or she is being harassed. The district court also found that Sunbelt should not be held liable because it had an anti-harassment policy in place. Yet the mere promulgation of such a policy is not a per se defense to co-worker- created hostile work environment claims. Further, Sunbelt's policy was patently defective and dysfunctional, as Ingram used it to no avail. Given this evidence, the fact finder should have been allowed to assess the import of Sunbelt's policy as part of its overall determination of whether Sunbelt was negligent in responding to the anti-Muslim hostile work environment at its Gaithersburg location. In short, in ruling that no reasonable jury could find Sunbelt liable for subjecting Ingram to a religion-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 Sunbelt'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). In ruling on a motion for 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) (on summary judgment 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 Ingram was Subjected to a Hostile and Abusive Work Environment Because He Is a Muslim. Title VII forbids an employer from discriminating on the basis of religion with respect to terms, conditions, or privileges of employment. See 42 U.S.C. § 2000e-2(a)(1); see also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977) (discussing this statutory prohibition on religion-based discrimination). The Supreme Court has long recognized that such discrimination includes subjecting an employee, because of a protected characteristic such as the employee's religion, 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 . . . religion . . . offends Title VII's broad rule of workplace equality."). This Court clearly recognizes religion-based harassment claims, as well. See, e.g., Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir. 2006) (involving religion-related hostile work environment). Here, the EEOC alleges that Sunbelt violated Title VII by subjecting Ingram to an environment which was abusive and hostile for him because he is a Muslim. The EEOC can prove its case by demonstrating that the harassment was (1) unwelcome; (2) based on Ingram's religion; and (3) sufficiently severe or pervasive to alter the conditions of his 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 on 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. Sunbelt did not appear to dispute this below and the district court did not explicitly rule otherwise. The record reveals that the harassment made Ingram very uncomfortable, upset, and angry, that he took it "so personally," and that he complained about it repeatedly to the harassers, co-workers, and supervisors. This easily is enough evidence to create a genuine issue on whether the harassment was unwelcome. See, e.g., Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) (proof that the victim told the perpetrator that the harassment was offensive suffices to show it was unwelcome). Second, the vast majority of the insults and incidents at issue were religion- based. They included overtly anti-Muslim cartoons, jokes, remarks, slurs, and at least one physical threat. Gray said it is a "fact" that "derogatory comments and statements were made to Clinton in the workplace regarding his religion," that "our work associates had no respect for Clinton being a Muslim," and that Ingram "would [not] have had a problem if it had not been for the events of September 11th." A reasonable jury certainly could conclude that this harassment happened because of Ingram's religion. The district court determined that certain events (e.g., defacing Ingram's business card, hiding his timecards, etc.) were "pranks" with "no nexus" to Ingram's religion. However, Ingram appears to have been targeted much more often and harshly than non-Muslims in the workplace. Further, Ingram testified that his timecard was hidden most often on Fridays while he was away from work at his Mosque. Similarly, Gray made a link between the anti-Muslim comments and other, facially neutral conduct targeted at Ingram. Gray stated "[i]t is a fact that derogatory comments and statements were made to Clinton in the workplace regarding his religion. Because he took it so personally, it made things worse and like little children, the guys gave him a hard time." Gray said examples of this behavior included defacing Ingram's business card and leaving it out where customers could see it, and hiding Ingram's timecards. Warner called Ingram a "towel head" once when Ingram accused Warner of taking his timecard. Given this record evidence, a reasonable jury could conclude that even the "neutral" incidents, considered in the context of the palpable anti-Muslim hostility at Sunbelt and in light of the harsher treatment Ingram endured, occurred because Sunbelt employees did not understand and/or had disdain for Ingram's religion. Third, there is ample proof to create a jury question as to whether this anti- Muslim 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 severe or pervasive: 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 determining whether harassment is actionable). Here a reasonable fact finder could have found that the harassment was subjectively and objectively severe or pervasive. From around the time Sunbelt first hired Ingram and until Sunbelt ultimately fired him, Ingram - the only Muslim at Sunbelt's Gaithersburg location - was the target of sustained, serious anti- Muslim harassment and sentiment. A cartoon depicting Muslims as terrorists was posted on a workplace wall. After September 11th, numerous employees talked and joked about how Islam is "bad." According to Gray, "[i]t is a fact that derogatory comments and statements were made to Clinton in the workplace regarding his religion." Gray said these comments were made "often." "Sal" told Ingram at least twice that he considered him to be a member of the Taliban. Sal asked Ingram if he was on the Taliban's side, ordered him to "pick a side," and told him that if he did not like America he could just leave. When the news of the capture of the D.C. snipers was announced on a television in the showroom, "Ron" stared at Ingram and shouted "I should have known they were Muslims." Warner, a Sunbelt supervisor, threatened to bring about the "end" of Ingram if Warner "caught" him praying. Warner at least once called Ingram a "towel head" in the presence of Ingram's supervisor and co-workers. Warner "repeated over and over again" - "at least more than 10 or 20 times" - comments about Ingram's Muslim-related beard and Kufi and told him he "looks like a Taliban." Ingram said he "can't count" the number of times Warner insulted him this way. Warner "always" did it. Fortna (Ingram's supervisor) and Gray (who worked beside Ingram daily) remarked about Ingram's Kufi "several times." Gray made negative comments about Ingram's religion and appearance "like an ongoing thing, daily . . . ." Gray gave Ingram trouble for reading the Koran. Gray and Parater (who also worked right next to Ingram) regularly criticized Ingram for praying at work and complained to Riddlemoser about it. Parater also showed disrespect for Muslims generally and "slander[ed]" Ingram's faith in front of co-workers and customers. Parater made "ignorant comments" and joked about Islam "several times." Parater also said that we should "kill" and "blow up" everyone in Saudi Arabia and "F- em." It was also "obvious" to Ingram's co-workers that certain Sunbelt customers "had no respect" for Ingram because of his religion. Customers were verbally abusive to Ingram and insulted his faith. One customer laughed when Ingram had to leave to go pray. Another told Ingram he looked like the Taliban. Muslim customers also testified that Sunbelt employees regularly insulted them with anti- Muslim epithets. Customer "Nejati" said Gray would often refer to him as "sun nigger," "terrorist," "Bin Laden," "Hezbullah," "Ayatollah," "Saddam Hussein," and/or "Kadaffi." Nejati said Gray called him these names "so many times" - "every time" Nejati dealt with Gray. Customer "Komara" said that after Ingram was fired, someone at the Gaithersburg store indicated that the store manager had not liked that Ingram prayed at work, and that all Muslims were associated with violence. Viewing all this evidence in the light most favorable to the EEOC, a reasonable jury could conclude that this harassment was subjectively and objectively severe and pervasive. It is clear that Ingram believed that his work environment had become hostile and abusive. Ingram testified at length about the serious and sustained harassment he suffered. To Ingram, the harassment was "major." He complained repeatedly about it to superiors. He told Dempster he just wanted to work in a "harassment-free environment." His written complaint explicitly stated he believed the Gaithersburg store was "an unhealthy environment to work in." He asked Dempster to transfer him out of it. This is more than sufficient to satisfy the "subjective" prong of the actionable harassment standard. 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 v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (victim's complaints to supervisors about harassment shows he or she believed the environment was hostile or abusive). In addition, a reasonable fact finder could find that the incessant barrage of anti-Muslim insults and slurs by Ingram's co-workers, customers, and even Sunbelt managers forced Ingram - because of his religion - to work in an objectively abusive and hostile environment. See Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129, 1131 (4th Cir. 1995) (reversing summary judgment because a "reasonable person could easily find [the] atmosphere hostile" where for six months and "almost daily" an Iranian plaintiff's work group leader and "other co-workers" called the plaintiff "the local terrorist," a "camel jockey," "the ayatollah," and "the Emir of Waldorf"); see also Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (describing a jury verdict in favor of the plaintiff where co-workers on a daily basis "made his workday miserable with such degrading comments as 'camel jockey,' 'go back home and ride your camel,' 'crazy Indian,' and 'go back to India and wash elephant nuts for a living'"); White v. BFI Waste Servs., LLC, 375 F.3d 288, 297 (4th Cir. 2004) (reversing a grant of summary judgment on a racial harassment claim where black plaintiff showed that throughout his employment supervisors repeatedly called him and other black employees epithets like "boy, jigaboo, nigger, porch monkey, Mighty Joe Young," and "Zulu warrior"); 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"). While this case is primarily about co-worker (and customer) harassment, it bears emphasizing that the fact that Sunbelt supervisors contributed to creating the hostile work environment elevates the severity of the abuse. See, e.g., Pa. State Police v. Suders, 542 U.S. 129, 145 (2004) (finding that a supervisor's "power and authority invests his or her harassing conduct with a particularly threatening character" (internal citation omitted)); cf. BFI Waste Servs., 375 F.3d at 298 ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates." (internal quotation marks omitted)). Physical threats - like the veiled one Warner made about Ingram's prayers - are inherently more severe as well. See id. at n.6 (finding the presence of protected trait-based physical threats "undeniably strengthens a hostile work environment claim"). In ruling the harassment here was not sufficiently 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, it went on to emphasize that harassment actually has to be "extreme" and "substantial and severe" - that it has "to be so pervasive and severe that . . . any reasonable person would find [it] intolerable." This misstates the law. The EEOC did not have to establish that the harassment was "intolerable." Cf. Harris, 510 U.S. at 22 ("Title VII comes into play before the harassing conduct leads to a nervous breakdown.").<16> Further, while the Commission proffered enough evidence to allow a reasonable jury to find that the harassment was severe and pervasive, it did not have to make this heightened showing. 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 (Title VII is violated whenever the workplace "is permeated with [religion-based] intimidation, ridicule, and insult that is sufficiently severe or pervasive . . . ." (emphasis added)); Smith v. N.W. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) (the "test is a disjunctive one, requiring that the harassing conduct be sufficiently pervasive or sufficiently severe to alter the terms, conditions, or privileges of Plaintiff's employment." (emphasis in original)). Thus, the district court committed clear error by applying the wrong legal standard in disposing of the Commission's harassment claim. In ruling that the harassment here was not actionable, the district court also broke basic summary judgment rules. For example, while the district court never ruled that Ingram did not subjectively believe his work environment was hostile or abusive, it indicated that Ingram may not have perceived much of the harassment to be unwelcome or severe because he failed to include many of the relevant incidents in his written complaint. This assumption is belied by the record evidence. Ingram testified that the day he submitted his written complaint, he simply did not have time to write out an exhaustive list of every instance of harassment he had endured. Ingram also explained that Wilson had not told him he needed to include everything in his fax anyway. Thus, in concluding that Ingram omitted events because he deemed them harmless or insignificant, the district court failed to credit Ingram's own unrebutted testimony to the contrary. The district court construed record evidence in the light most favorable to Sunbelt, weighed the evidence, and made factual findings. At summary judgment, all of this was plainly impermissible. See Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 194 (4th Cir. 2000) (faulting the district court for failing in a harassment case to draw all inferences in the light most favorable to the non-movant (citing Reeves)). Further, the district court minimized the significance of the many anti- Muslim insults and incidents simply because the district court "suspect[ed]" they had occurred in a "rough and ready" workplace (as opposed to the "Century Club of New York" or a "dance class"). To be sure, context matters. See Oncale, 523 U.S. at 81-82 (requiring "careful consideration of the social context in which particular behavior occurs and is experienced by its target" as the "real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships"). However here, there is no evidence in the record (other than that co-workers sometimes played pranks on one another and used profanity) establishing that Sunbelt was a particularly crude workplace. In relying only on its "suspicions" in ruling otherwise, the district court was engaging in judicial fact-finding, violating clear summary judgment standards. Moreover, just because a particular workplace may be inherently "coarse" does not mean an employee working in it cannot prove a harassment claim as a matter of law. Contrary to the district court's speculation that "dissatisfaction, annoyances, coarse language, [and] unkind remarks are not really out of place in some businesses," this Court has clearly held that there is no "assumption of the risk" defense to liability for creating or permitting a hostile work environment. See Conner, 227 F.3d at 194-95 ("We are unable to discern an 'inhospitable environment' exception to Title VII's mandate that employers may not discriminate based on employees' [religion] as to the 'terms, conditions, or privileges of employment.'"). To the contrary, this Court has "dismiss[ed] the idea that a prevailing workplace culture can excuse discriminatory actions . . . ." Id. (citing Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999)). Similarly, the district court reasoned that the harassment consisted merely of "random remarks by co-workers in an equipment rental business" and simple "teas[ing]," "pok[ing]," "provok[ing]," and "us[ing] coarse language back and forth." Without question, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (internal quotation marks omitted). But the district court was required to review the entire record here. 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); cf. Reeves, 530 U.S. at 150 (at summary judgment the court must review the record "taken as a whole"). This record revealed that the harassment was neither merely sporadic nor innocuous. It consisted of a persistent - indeed virtually daily - onslaught of epithets and threats uttered in front of co-workers and customers. This is the derogatory and humiliating stuff of which hostile work environments unquestionably are made. Cf. Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (rejecting a defendant's characterization of harassment as simple joking and teasing and finding actionable hostile work environment); Conner, 227 F.3d at 193-94 (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 and disregarding the evidence helpful to Sunbelt that the jury is not required to believe, a reasonable fact finder easily could conclude that Ingram was subjected, because he is a Muslim, to severe or pervasive harassment that created a hostile and abusive working environment. The district court thus committed reversible error in taking the Commission's harassment claim away from the jury. 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 Sunbelt Knew About the Religion-Based Harassment but Failed to Take Prompt Corrective Action to Remedy It. To survive summary judgment, the Commission also had to show that there is a basis for holding Sunbelt liable for the anti-Muslim harassment detailed above. See Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007) (citing Spriggs, 242 F.3d at 184)). In this case, the EEOC had to raise a genuine issue as to whether Sunbelt "knew or should have known about the harassment [by colleagues and customers] and failed to take effective action to stop it." Howard v. Winter, 446 F.3d 559, 565, 567 (4th Cir. 2006) (citing Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc)). The Commission had to create a jury question as to whether Sunbelt "was negligent 'in failing, after actual or constructive knowledge [of co-workers' comments and conduct], to take prompt and adequate action . . . .'" Howard, 446 F.3d at 567 (quoting 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. This Court has held that an employer will be on actual notice of harassment if a victim makes "repeated, specific complaints" to managers. See Harris v. L&L Wings, Inc., 132 F.3d 978, 982 (4th Cir. 1997). This standard was easily satisfied here. Ingram complained numerous times to Riddlemoser about what was happening. Gray stated that Ingram complained to Riddlemoser "[w]henever anything that Clinton believed to be inappropriate was said or done." Gray also stated that Riddlemoser simply did not take Ingram's complaints seriously because Ingram complained "so much." Gray said Riddlemoser even grew "tired" of Ingram's multiple complaints. Riddlemoser admitted Ingram complained to him on various occasions. Ingram also told Dempster - a Sunbelt regional manager - about the harassment, and even asked to be transferred to another location because of it. In addition, Ingram informed Warner - also a Sunbelt supervisor - that one of Warner's subordinates (Sal) was calling Ingram a member of the Taliban. On one occasion, Gray informed Dempster that a customer told Ingram that he looked like the Taliban. Given this abundant record evidence, a reasonable jury could quite easily conclude that Sunbelt had actual notice of the religion-based hostile work environment at its Gaithersburg location. See Howard, 446 F.3d at 569 (one conversation with a human resources representative was sufficient to put the employer on actual notice); Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983) (actual knowledge can be shown by "proving that complaints about the harassment were lodged with the employer"). The district court suggested that Sunbelt did not have notice of the co- worker harassment before Ingram faxed his complaint to human resources, and criticized Ingram for allegedly making an "unspecified number" of verbal complaints. The district court apparently was of the view that aggrieved employees are required to file a written complaint to put the employer on notice of the harassment. However, this Court's case law contains no such "written notice" requirement. To the contrary, this Court has held that an "employer cannot avoid Title VII liability for coworker harassment by adopting a 'see no evil, hear no evil' strategy." Ocheltree, 335 F.3d at 334. Here, the district court's "written notice" rule is also irreconcilable with Sunbelt's own anti-harassment policy, which merely required employees to "notify" either a supervisor or human resources about alleged harassment. Indeed, even Riddlemoser acknowledged that to lodge a harassment complaint, all an employee had to do was "[j]ust report it to the manager." The district court's refusal to credit these critical facts - and its suggestion that Ingram may never actually have made verbal complaints at all, despite abundant evidence to the contrary - further demonstrates that the district court was impermissibly weighing the evidence, drawing inferences in the light least favorable to the Commission, and finding facts. In addition, this Court has held that knowledge will be imputed to an employer "if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct." Spicer v. Va. Dep't of Corr., 66 F.3d 705, 710 (4th Cir. 1995) (en banc). Here, the sheer quantity of the anti-Muslim incidents and insults at issue (detailed above) should have put Sunbelt on at least constructive notice that Ingram was being harassed. The harassment occurred routinely in front of co-workers and customers. Warner - who, it bears repeating, was a Sunbelt supervisor - harassed Ingram. Fortna - again, Ingram's supervisor - witnessed the harassment and even participated in it, as well. Ingram testified that some of the harassment occurred within earshot of Riddlemoser's desk and that Riddlemoser was present for some of it. Customers were regularly subjected to anti-Muslim slurs, too. Nejati said a Sunbelt "manager" was there and "laughing" when Gray called him anti-Muslim epithets. Nejati stated that Fortna, specifically, witnessed Gray call a customer "Kadaffi" and other derogatory names. This record evidence should suffice to create a genuine issue as to whether Sunbelt had at least constructive notice of the religion-based hostile work environment. Ocheltree, 335 F.3d at 334 (explaining "[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)); Katz, 709 F.2d at 255 (stating constructive notice can be demonstrated by showing "the harassment was so pervasive that employer awareness may be inferred"). The EEOC also produced enough evidence to withstand summary judgment on the question of whether Sunbelt failed to take effective action to stop the harassment. This Court has emphasized that Tile VII "places significant responsibilities on employers in reasonably responding to employee allegations" of harassment. Howard, 446 F.3d at 571. Indeed, this Court has 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. An employer will be liable for a hostile work environment created by co- workers if it fails to take "timely and adequate corrective measures after harassing conduct has come to its attention." Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). The employer must take "prompt remedial action" which is "reasonably calculated to end" the co-worker harassment. Id. at 155 (citing Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989)), rev'd in part on reh'g on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc)); see also Katz, 709 F.2d at 256 (same). The employer also must take "'corrective action reasonably likely to prevent the offending conduct from reoccurring.'" L&L Wings, Inc., 132 F.3d at 984 (quoting Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997)). We believe the record reveals a genuine issue as to whether Sunbelt met its burden to take the requisite corrective action in this case. Before Ingram contacted human resources and filed a written complaint, his repeated verbal complaints and the verbal complaints others made on his behalf went completely unheeded by Sunbelt management. According to Gray, Ingram's numerous complaints simply were not taken seriously. Riddlemoser grew "tired" of them. Riddlemoser promised to "get to the bottom" of the harassment but nothing changed "week after week after week." Instead, Riddlemoser asked Ingram to handle it himself, told him not to "sweat it," said he should not take it "so personal," and advised him to let it "roll right off his shoulder[s]." Dempster never followed through on Ingram's transfer request. Dempster knew a customer had called Ingram a member of the Taliban and did nothing about it. In short, there is scant evidence that anyone at Sunbelt took any action whatsoever, much less action "reasonably calculated" to prevent and correct the harassment. To the contrary, certain managers witnessed, condoned, and participated in creating the hostile work environment. This evidence, viewed in the light most favorable to the EEOC, creates a jury question as to whether Sunbelt was negligent in responding to known religion-based harassment. See Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (an employer is liable "where it had actual or constructive knowledge of the existence of a sexually hostile work environment and 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)). This is true notwithstanding the actions Sunbelt took after Ingram filed his written complaint. The district court reasoned that Sunbelt should not be held liable for harassment here in part because "there was some follow-up with regard to the time cards and the other issues, and . . . Riddlemoser did look into this to some extent." The district court concluded that "[i]t's not clear what more could ever be done by an employer in this circumstance if co-employees are . . . playing these kinds of pranks." A reasonable jury certainly could disagree. Wilson did e-mail Riddlemoser and Dempster to outline Ingram's concerns and emphasize the importance of stopping the harassment. However, Wilson then turned responsibility for responding to Ingram's complaint over to Riddlemoser. Wilson advised Riddlemoser merely to "talk" with Ingram and those "who are 'giving Clinton a hard time.'" She failed to follow-up in any meaningful way to make sure Riddlemoser actually conducted a proper investigation (and asked Riddlemoser simply if he had talked to Ingram about his "performance issues"). Instead, Wilson accepted at face value Riddlemoser's assurances that Ingram's religion had nothing to do with the problems in the Gaithersburg workplace. She took Riddlemoser's word that everything had been "addressed" - even though Wilson knew Ingram had complained repeatedly to Riddlemoser in the past about religion-related harassment to no effect. 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"). Riddlemoser's actions belie any suggestion he was interested in remedying the hostile work environment. He could not remember any details about his "investigation" of Ingram's written complaint. He told Wilson he had already let Ingram pray at work and had thus accommodated his religion enough. Indeed, Riddlemoser refused to believe Ingram's religion was even an issue. He faulted Ingram's personality and performance for the problems Ingram was having. He failed to take Warner's threat to bring about "the end" of Ingram for praying at work seriously, and believed Warner's self-serving denial of the incident instead. Riddlemoser said he would refuse to discipline anyone without a "confession." He never determined who tampered with Ingram's computer or defaced Ingram's business card. He told Ingram that unless he actually caught someone taking his timecard, there was nothing he could do about it. Riddlemoser did make everyone sign a statement pledging not to touch timecards. However, he did this before Ingram filed his written complaint (not in response to it). Ingram's written complaint indicated co-workers had continued to take his timecard anyway. There is no record evidence that Riddlemoser ever disciplined anyone for these post-complaint infractions. The timecard issue was a relatively minor element of the ongoing harassment in any event. Gray said Riddlemoser once told employees not to make anti-Muslim comments. However, it is unclear when this "warning" was given - if ever. Moreover, even if Riddlemoser did issue such a warning, the jury could infer from Ingram's testimony that the harassment happened "daily" and "over and over again" - and "started up again" even after Ingram complained to human resources - that the warning was completely ineffective. Further, any warning Riddlemoser might have given to employees about making anti-Muslim comments did not address the harassment customers routinely directed towards Ingram. In short, a reasonable jury could conclude that whatever Sunbelt did after Ingram filed a written complaint was simply "too little, too late." The harassment continued unabated. For this reason, a fact finder could reasonably find that Sunbelt failed to take effective corrective action and should not be shielded from liability here. 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); Spicer, 66 F.3d at 711 (explaining that liability must cease "when an employer's remedial response results in the cessation of the complained conduct" (emphasis added)). The district court suggested that Sunbelt should not be liable for harassment because it had "an anti-harassment policy in place and it would not be tolerated." However, there is no per se "anti-harassment policy defense" to employer liability for co-worker harassment. Cf. Katz, 709 F.2d at 256 (noting that "to avoid liability under Title VII, an employer on notice of sexual harassment must do more than indicate the existence of an official policy against such harassment"). That an employer has promulgated an anti-harassment policy is but one fact to be considered along with all the other record evidence bearing on the ultimate inquiry of whether the employer was negligent in rectifying known harassment. See Howard, 446 F.3d at 568-69 (partially reversing a grant of summary judgment on a harassment claim despite the existence of an adequate anti-harassment policy). This Court has noted, in discussing the affirmative defense to supervisory harassment established in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), that evidence an employer "disseminated an effective anti-harassment policy provides compelling proof of its efforts to prevent work place harassment." Lissau, 159 F.3d at 182 (emphasis added). However, this Court has also emphasized that an anti- harassment policy will not aid the employer in proving its affirmative defense if the policy was "defective or dysfunctional." See BFI Waste Servs., 375 F.3d at 299-300 (quoting Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001)). According to this Court, "the mere promulgation of such a policy may well fail to satisfy the employer's burden" as "any policy adopted by the employer must be both reasonably designed and reasonably effectual." Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999). Thus, if an employee makes use of the employer's anti-harassment policy to no avail then summary judgment on the issue of the employer's liability "would be inappropriate." Lissau, 159 F.3d at 183. Applying these principles to this co-worker harassment case, there were several significant deficiencies in Sunbelt's anti-harassment policy. Notably, the policy did not even explicitly proscribe religion-based harassment. In the past, this Court refused to find that an anti-harassment policy which precluded sexual harassment - but did not mention anything about the sort of gender harassment at issue in the case - was sufficient to absolve an employer of liability as a matter of law. See First Union, 202 F.3d at 245. Similarly here, this Court could conclude that because Sunbelt's policy did not specifically preclude religion-related harassment, there is a jury question as to whether it was defective or dysfunctional with respect to the harassment Ingram experienced. In addition, this Court has stated that "a jury may give negative weight to the fact that a scheme does not require a supervisor, with whom complaints of . . . harassment must be lodged in the first instance, to forward unresolved complaints to higher authority." See Ocheltree, 335 F.3d at 334-35. Sunbelt's policy did not require supervisors to report known harassment to upper-management. Instead, Sunbelt's "Grievance Policy" put the burden only on employees to escalate their complaints to higher levels. Not a single Sunbelt supervisor - not Fortna, not Warner, not Riddlemoser, not Dempster - ever did so. Sunbelt's policy is patently deficient for this reason, as well. Most importantly, Ingram's attempts to avail himself of Sunbelt's anti- harassment policy proved futile. On paper, Sunbelt's policy promised the company would investigate all harassment complaints "thoroughly and promptly." In practice, Sunbelt failed to conduct any investigation in response to any of Ingram's repeated verbal complaints - must less a "thorough and prompt" one. Cf. BFI Waste Servs., 375 F.3d at 299-300 ("Under these circumstances, a jury could rationally conclude that, although [the employer's] institution of an anti- harassment policy represented a reasonable step toward preventing the type of abuse suffered by [a victim of harassment], the company unreasonably failed to correct . . . offending behavior by neglecting to enforce the policy."). Even the "investigation" of Ingram's written complaint was woefully inadequate (perhaps not surprising, since Sunbelt failed to give Riddlemoser any training on harassment or how to conduct investigations into harassment complaints). To summarize, having an anti-harassment policy is not a per se defense to co-worker harassment. Here, the evidence strongly suggests that Sunbelt's policy was "defective or dysfunctional." On this record, the fact finder should have been allowed to evaluate the effectiveness of Sunbelt's anti-harassment policy as part of its overall determination of whether Sunbelt was negligent in rectifying ongoing harassment. See Howard, 446 F.3d at 569-70; Ocheltree, 335 F.3d at 334-35; cf. Lissau, 159 F.3d at 183; BFI Waste Servs., 375 F.3d at 299-300; Barrett, 240 F.3d at 266; Brown, 184 F.3d at 396. Because the EEOC adduced enough evidence to create a jury question on this issue, the district court erred in ruling as a matter of law that Sunbelt could not be liable for harassment in this case. See Paroline, 879 F.2d at 106 (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 Sunbelt'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 CAROLYN L. WHEELER 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 7020 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 13938 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 7020 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov Date: June 13, 2007 CERTIFICATE OF SERVICE I certify that on June 13, 2007, 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 Patricia J. Hill, Esq. Smith Gambrell Russell 50 N. Laura Street, Suite 2600 Jacksonville, FL 32202 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 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> The EEOC is not appealing the district court's decision to grant summary judgment with respect to the EEOC's retaliatory discipline and discharge claim. <3> Ingram testified that Fortna, who was also called the "purchasing manager," was "from my understanding, the supervisor." (JA27,71,360,650.) Gray also testified that "it was just an unwritten thing that . . . Barry was our supervisor." (JA165.) Riddlemoser was asked in his deposition if Fortna "supervise[d] Mr. Ingram." (JA269.) Riddlemoser replied "He is the lead rental manager, yes." (JA269.) Fortna also signed various employee disciplinary notices on the "Supervisor" line of the forms. (JA292,293,294.) <4> Co-worker Gray stated that "to Clinton [these things] were major." (JA160.) <5> As already noted, there is contrary evidence in the record suggesting that Fortna himself was a supervisor. See note 3 above. <6> Parater admitted to making this remark. (JA196,631.) Fortna and Gray overheard it. (JA108,159,169.) <7> Fortna and Parater both testified Ingram never left in the middle of helping out a customer to go pray. (JA109-10,201.) <8> Gray said writing "dumb ass" on Ingram's business card (and then leaving it out where customers could see it), and hiding Ingram's timecard were "[e]xamples of specific incidents" where "the guys gave him a hard time" because Ingram took the derogatory comments about his religion "so personally." (JA168.) <9> Gray said Ingram's timecard was removed "somewhere between five and ten times." (JA404.) Fortna also said it happened "more than once" and that Ingram reported it to Riddlemoser. (JA113-14,121) Gray stated Riddlemoser "got involved to help [Ingram] locate it at one point." (JA406.) <10> A separate "Grievance Policy" states that "[s]hould a job-related problem arise, employees are encouraged to discuss the problem with their Supervisors; Supervisors will work with the employees, making every effort to reach a solution that is agreeable to everyone involved. In the event that the employee feels that the Supervisor is unresponsive or that his recommended solution is not adequate, concerns may be taken to a higher level. The Human Resource[s] Department or higher management may be consulted to resolve ongoing problems." (JA141.) <11> Gray said Riddlemoser eventually got "tired of Clinton's complaints." (JA160.) He said "[e]very time [Ingram] had a complaint" Riddlemoser "would address it." (JA407.) Gray also stated that in one particular meeting, Riddlemoser spoke "to each employee once and warned us to avoid making comments about Clinton and Muslims in general." (JA169.) Gray said "there were no other times, outside of that meeting" that he gave such a warning. (JA410.) It is unclear when this alleged meeting occurred. <12> The EEOC did not bring a race-based harassment claim. <13> To the contrary, as noted, Ingram testified he had complained to Dempster in the past about the harassment and had even sought to be transferred because of it. <14> Riddlemoser did require all employees to sign a statement acknowledging that tampering with Ingram's or anyone else's timecard would lead to disciplinary action (including termination for repeat offenses). (JA168,253,778.) Riddlemoser indicated this was prepared before Ingram's written complaint - not in response to Wilson's e-mails to him. (JA253-54,690.) <15> However, in his deposition Riddlemoser could not recall the nature of any "personality conflicts" between Ingram and Fortna, Gray, Parater, or others. (JA260-61.) <16> Indeed, proof that a hostile work environment is so extreme as to become intolerable states the standard for harassment-induced constructive discharge - an entirely different cause of action (and not the one the EEOC brought here). As the Supreme Court has explained, constructive discharge is "harassment so intolerable as to cause a resignation" - it is a "'worse case' harassment scenario, harassment ratcheted up to the breaking point." Suders, 542 U.S. at 147-48. That is, "[f]or an atmosphere of . . . harassment or hostility to be actionable . . . the offending behavior must . . . create an abusive working environment" but a "hostile- environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." Id. at 146-47 (internal quotation marks omitted) (emphasis added).