No. 10-1156 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. XERXES CORPORATION, Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Maryland The Honorable Catherine C. Blake, Presiding _______________________________________________________ OPENING BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . 2 A. Background. . . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . 22 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . 28 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 29 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 I. A REASONABLE JURY COULD FIND THAT ALL THREE CLASS MEMBERS WERE SUBJECTED TO HARASSING CONDUCT ON THE BASIS OF THEIR RACE THAT WAS SUFFICIENTLY SEVERE OR PERVASIVE TO CONSTITUTE A HOSTILE WORK ENVIRONMENT UNDER TITLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . 31 A. Keith Wilson. . . . . . . . . . . . . . . . . . . . . . . . 32 B. Bernard Pearson. . . . . . . . . . . . . . . . . . . . . . 33 C. Roy Graham. . . . . . . . . . . . . . . . . . . . . . . . 34 II. A REASONABLE JURY COULD FIND THAT XERXES KNEW OR SHOULD HAVE KNOWN ABOUT THE RACIAL HARASSMENT OF ALL THREE CLASS MEMBERS, BUT FAILED TO TAKE PROMPT OR EFFECTIVE REMEDIAL ACTION. . . . . . . . . . . . . . . . . . . . . 39 A. Keith Wilson. . . . . . . . . . . . . . . . . . . . . . . . 42 B. Bernard Pearson. . . . . . . . . . . . . . . . . . . . . 50 C. Roy Graham. . . . . . . . . . . . . . . . . . . . . . . . 55 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 56 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 57 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . 58 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Abeita v. Transam. Mailings, Inc., 159 F.3d 246 (6th Cir. 1998). . . . . 36 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998). . . 44, 54-55 Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126 (4th Cir. 1995). 34, 39 Boyd v. State Farm Ins. Cos., 158 F.3d 326 (5th Cir.1998), cert. denied, 526 U.S. 1051 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 1999). . . . . . . 43 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . 39 Carter v. Ball, 33 F.3d 450 (4th Cir. 1994). . . . . . . . . . . . 36, 37 EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009). . passim EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008). . . . passim Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . 39 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . 35 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008). . . . . . 36 Howard v. Burns Bros., Inc., 149 F.3d 835 (8th Cir. 1998). . . . . . . . 51 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . .28 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004). . . . . . 34 Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005). . . . . . . . . .43 Ocheltree v. Scollon Prods., Inc., 335 F.3d 325 (4th Cir. 2003). .23, 39, 55 Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc). . . . . . . . 39, 40 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . 28 Simmons v. Oce-USA, Inc., 174 F.3d 913 (8th Cir. 1999). . . . . . . . . . 42 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). .22, 32, 34, 37 Tademy v. Union Pac. Corp., 520 F.3d 1149 (10th Cir. 2008). . . . . . 32, 47 Thompson v. Aluminum Co. of Am., 276 F.3d 651 (4th Cir. 2002). . . . 28-29 White v. BFI Waste Servs., LLC, 375 F.3d 288 (4th Cir. 2004). . . . . . 34 Williamson v. City of Houston, 148 F.3d 462 (5th Cir. 1998). . . . . . 43-44 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997). . . . . . . . . . . . 44 Ziskie v. Mineta, 547 F.3d 220 (4th Cir. 2008). . . . . . . . . . . . 31, 37 STATUTES & RULES 28 U.S.C. § 1291. . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . 1 42 U.S.C. §§ 2000e et seq. . . . . .1 Fed. R. App. P. 4(a)(1)(B). . . . 1 Fed. R. App. P. 32(a)(5). . . . . .58 Fed. R. App. P. 32(a)(6). . . . . .58 Fed. R. App. P. 32(a)(7)(B). . . . 58 Fed. R. Civ. P. 56(c). . . . . . 28 OTHER AUTHORITIES Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15- 7 (2006), http://www.eeoc.gov/policy/docs/race-color.html . . . 32-33, 37-38 "Benson" (1979), http://www.imdb.com/title/tt0078569/ (last visited June 2, 2010) . . . . . . . . . . . . . . . . . . . . . . . 14 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission (hereinafter "EEOC" or "Commission") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. Final judgment was entered on November 30, 2009. II-JA-852.<1> The EEOC timely appealed on January 28, 2010. II-JA-853. See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Whether the EEOC adduced sufficient evidence at summary judgment to allow a reasonable jury to find that all three class members were subjected to a racially hostile work environment. 2. Whether the EEOC adduced sufficient evidence at summary judgment to allow a reasonable jury to find that the defendant knew or should have known about the harassment of all three class members but failed to respond with remedial action reasonably calculated to end the harassment. STATEMENT OF THE CASE This is an appeal from a final judgment of the district court dismissing this Title VII enforcement action. On July 18, 2008, the EEOC filed a complaint alleging that Xerxes violated Title VII by subjecting the identified class members and a class of black employees to a hostile work environment on the basis of race. I-JA-7. The EEOC requested injunctive relief, back pay, compensatory and punitive damages, and costs, and also requested a jury trial. I-JA-9-11. On July 17, 2009, Xerxes filed a motion for summary judgment on all claims. I-JA-4. The Commission responded and cross-moved for partial summary judgment on August 17, 2009. I-JA-5. The district court held a summary judgment hearing on November 5, 2009. I-JA-5; II-JA-763-834. On November 30, 2009, the district court issued a memorandum opinion granting summary judgment to Xerxes and entered final judgment against the EEOC on all claims. II- JA-835. STATEMENT OF FACTS A. Background The three class members in this case-A. Bernard Pearson, Keith Wilson, and Gradian ("Roy") Graham-worked as assemblers at Xerxes' fiberglass manufacturing plant in Williamsport, Maryland. I-JA-398-99. The Williamsport plant employs approximately eighty-four people; during the time period in question, there were a total of four African-American employees at the plant, including the three class members, and the remaining eighty were white. I-JA-398, II-JA-633. All three class members worked under supervisor Bob Shifflett, who reported to Plant Superintendent Greg Carty, who in turn reported to Plant Manager Wayne Green. I-JA-408. The first class member, charging party Bernard Pearson, began working for Xerxes on a temporary basis in early 2005 and was hired as a full-time employee in June 2005. I-JA-398-99. According to Pearson, shortly after he began working for Xerxes, various white coworkers began directing racial epithets at him: Amber Gatrell "started saying I hate Niggers, I don't like nigger's [sic]"; Floyd Myers, who was having an affair with Gatrell, called Pearson "boy" and "black Polack," and told him that Bob Churchey called another employee a "nigger-lover"; Terry Smith told him that "some members in his family called black music 'nigger music'"; and Brian Bradley said that "Black music was jungle music." II-JA-632- 33. Pearson testified that the racial incidents began occurring around when he was "getting ready to become permanent"; according to Pearson, "I heard nigger for almost a whole year." II-JA-543, 633. April Acree, a white coworker, likewise testified that, while "work[ing] ... near the testing area where Floyd Myers ... worked," she "heard Floyd Myers use the word 'nigger' on a daily basis and frequently in the presence of Bernard Pearson." II-JA-642. She also testified that Churchey "frequently made the comment that I was listening to 'nigger music'" when she played hip-hop music on her radio; that, after seeing her black child, Churchey asked her, "'Why do you want to mess with niggers?'"; and that Myers told her, in Pearson's presence, that Churchey often referred to her as a "nigger-lover." II-JA-643. Acree related that she had complained to supervisor Todd Edgerton about Myers' and Churchey's remarks, but that no action was ever taken as a result. Id. Pearson also testified that, around October of 2005, he was subjected to a number of pranks, including having "stuff in the bathroom thrown at me, paper[] towels and lights cut off and gel on the door and my toolbox." II-JA-546. Pearson related that, "[i]n between the nigger stuff I had lights cut out and wet toilet paper thrown while I was on the toilet also gel put on the handle of the Bathroom Door, they knew I had to open the Door to [find] the lights. I had my tool box hidden, I had resin & [catalyst] on my lock so I couldn't open it I had to get it cut off plenty of time[s] by [maintenance]. They even stole my black book [where] I kept Date & time that everything that happen [sic]." II-JA-635. Class member Keith Wilson also testified that in November 2005 both his and Pearson's lunches were stolen or thrown away from the shared refrigerator on several occasions when they worked the night shift; according to Wilson, "me and Bernard was the only minorities there and it wasn't nobody else's lunches tampered with or anything." I-JA-351. Pearson testified that he complained to Shifflett, his supervisor, beginning shortly after he became a permanent employee, whenever racial incidents occurred, and specifically with respect to the incident when paper towels were thrown at him. II-JA-542 ("I talked to Mr. Shifflett right after ... I know it took two months to become permanent, .... Because stuff was still going on. I went and told Bob Shifflett about it."), II-JA-549 ("[H]e knew that every time something happened, I let him know."). He related that, although Shifflett told him that he would tell Carty what was going on, the racist conduct continued. II-JA-632. Wilson testified similarly that he and Pearson told Shifflett, as the night supervisor, about the lunch incidents, each time they occurred, and that Shifflett told them both that he "would report it to Wayne or to Greg," but there was no response. I-JA-350. In both his deposition testimony and his written EEOC statement, Pearson related that he eventually met directly with Carty and a union rep named Kenny in May 2006. II-JA-547-48, 634. Pearson recounted that he told Carty about the racist language Gatrell and Myers had been using, that he asked Carty why nothing had been done, pointing out that "it's almost a year," and that he wanted it to stop.<2> Id. According to Pearson, Carty told him, "Bernard, I don't want you to tell nobody about this. I'm going to take care of this." Id. However, nothing further was done. In June 2006, Pearson filed a charge of racial discrimination with the Maryland Commission on Human Relations.<3> II-JA-638. In his charge, Pearson alleged: Since being hired in April 2005 I have had to endure on-going harassment/intimidation due to my race. I have been called "boy," "Nigger," & "Black Pollack." The music I listen to while working has been called "Nigga" music and "jungle" music. I have had my tool box hidden from me, my lock covered with resin so I couldn't open my locker and gel put on the door handle. I spoke to management about this discriminatory behavior but no one was ever reprimanded. Pearson testified at his deposition that he filed the MCHR charge because he was "frustrated" that he "was going through this stuff all this time and different things and no one was hearing me." I-JA-234. He testified, "I was upset because I tried to talk to somebody ... I just wanted to come there and do my work. I wasn't trying to get in no trouble." Id. He testified that he had been advised by other coworkers at Xerxes that "you had to go deal with somebody else, [the Maryland Commission on] Human Relations, to get something done or through EEOC or something like that because nothing would be done." I-JA-234-35. Ronald Bachmeier, who was then Xerxes' EEO Coordinator, based in its corporate headquarters in Minneapolis, Minnesota, stated in an affidavit that he first learned of Pearson's concerns through Wayne Green in "late June, 2006." I- JA-474. According to Bachmeier, he immediately traveled to the Williamsport plant "to investigate and respond to Mr. Pearson's concerns." Id. Bachmeier related that he "interviewed Mr. Pearson as well as more than 15 other employees," and that: Interviewees either denied Mr. Pearson's allegations, explained that Mr. Pearson had taken their remarks out of context, indicated that they did not mean their remarks to be racially offensive, or had since apologized for those remarks, and explained that Mr. Pearson had himself engaged in interaction with other employees using profanity and the racially offensive term "N _ _ _ _ _." ... Moreover, although Mr. Pearson contended that he had spoken with certain Xerxes supervisors regarding his concerns, those supervisors credibly disputed Mr. Pearson's contention that he spoke to them or Mr. Pearson's version of their communications. I-JA-475. However, Bachmeier did not interview several of the witnesses Pearson identified, including April Acree, a former Xerxes employee who corroborated Pearson's account of Myers' repeated use of the word "nigger" in his presence. II- JA-642, 760. Bachmeier testified that he chose not to interview Acree because: April Acree, in my opinion, was brought in as ... a peripheral, if you will, participant in this. And ... my charter, my purview, was to determine whether current employees had participated in discriminatory behavior. And if I could determine that without talking to people outside the company, ... I determined that that wasn't necessary. I-JA-30. Bachmeier also did not interview Dennis Shade, another coworker who, according to Green's notes dated June 29, 2006, had "[h]eard Amber [Gatrell] use [the] "N" word 3 or 4 times ... [when] Bernard was in [the] area." II-JA-644. As a result of his investigation, Bachmeier related that he reached the following conclusions. Myers and Gatrell were each issued a two-day, unpaid Disciplinary Suspension and Final Warning, Myers for "us[ing] the word 'Boy' in the course of communicating with" Pearson, and Gatrell for making a "racially disparaging remark" to Pearson, for which she "had reportedly apologized," and for using "the word 'N_ _ _ _ _' around Mr. Pearson." Bradley was issued a Written Disciplinary Warning for "referr[ing] to certain music as 'jungle music,'" which Bachmeier concluded he had not done "with intent to disparage any employee's race, national origin, etc.," and for which Bachmeier "determined that Mr. Bradley had apologized to both Mr. Pearson and another employee." Finally, Smith was issued a Verbal Counseling, confirmed in writing, for her use of "the term 'Buckwheat,' in the context of a conversation with another African-American employee," as to which Bachmeier found that she "credibly denied that she intended the remark to be in any way racially derogatory." I-JA-476-77; II-JA- 645-52. Bachmeier also stated that he conducted two different retrainings at the plant on July 25, 2006, one for Xerxes plant supervisors and another for all employees, in which he reviewed Xerxes' prohibitions on harassment and discrimination. I-JA-477-78. On April 10, 2007, Pearson discovered in his locker a piece of fiberglass with a message glued to it that read "KKK plans could result in death, serious personal injury, NIGGA BENARd [sic]." I-JA-465 (date), II-JA-639 (photo). The parties' accounts of Pearson's and Xerxes' immediate responses to Pearson's discovery of the threatening message differ. According to Pearson, after he first told the union rep, Kenny, about it, he and Kenny "went straight to Wayne Green to show him, [but Green] said he was busy [and] he would see me tomorrow.... When Wayne Green wouldn't take care of this matter I got John Meade a supervisor to take pictures." II-JA-636-37. Green, however, stated in his affidavit that Pearson told Xerxes' management only that he "found something in his locker," but that Pearson refused to describe what it was, and when Green went to Pearson for clarification, Pearson "declined to tell [him] at that time what he found in his locker." I-JA-402. According to Green, Pearson stated that he was "going to contact his lawyer and would not discuss what he had discovered until he had spoken to and received direction from his attorney," but that "[e]ventually, Mr. Pearson allowed us to photograph what he had found in his locker-a 4? x 4? piece of clear laminated fiberglass with an offensive racist communication ...." I-JA- 402-03. According to Green's affidavit, Green reported the incident with the fiberglass piece to the Washington County Sheriff's Office on April 20, 2007, ten days after it occurred. I-JA-403. Meanwhile, Green testified that, while his sheriff's report was pending, he "interviewed several employees regarding Mr. Pearson's concern" and held an all-staff meeting on April 23, 2007. I-JA-404. Green testified that, at the meeting of April 23, he advised those present that racial discrimination and harassment were absolutely prohibited at Xerxes, including in "plant parking lots, restrooms, locker rooms, and production areas"; that the police had been told about the incident involving Pearson and the KKK threat; that, once all internal and external investigations were concluded, "Xerxes would take additional appropriate steps, which would probably involve the termination of the employee or employees involved in the communication"; that Xerxes would encourage criminal prosecution of the individuals responsible, to the extent their conduct violated any criminal laws; and that there would be ongoing training on Xerxes' policies and procedures. I-JA-404-05. Green also testified that he posted an all-employee memorandum reflecting "yet another reminder" of the messages from the all-employee meeting. I-JA-405. Pearson testified that, as a result of the additional training sessions stemming from his complaints, he "was being, ... basically picked on or being watched" by his white coworkers. II-JA-559. Sgt. James Grimm of the Washington County Sheriff's Office visited the plant on April 27, 2007. According to Grimm's report, Green told him that "he brought this particular matter to the Sheriff's Office attention because of the incident involving Dennis Shade, ..." a reference to another Xerxes employee. I- JA-465. Grimm also noted that "[i]t was reported that Bernard Pearson during the course of his two-year employment with the company, has reported racial remarks in the past by fellow employees, but they were handled internally through human resources and none ever contained any reference to the 'KKK.'" Id. According to Green's testimony, although Grimm asked him whether there was "anybody that I can think of that may have wanted to do this," he did not tell Grimm or anyone else about the individuals at Xerxes who had been reprimanded for engaging in past racial behavior targeted at Pearson. II-JA-530-32. Sgt. Grimm also noted in his report that he spoke with Pearson on that same day, and that Pearson explained that he found the threatening message in his locker. I-JA-465. Pearson told Grimm that he "brought [the incident] to his supervisors attention and later met concerning this with the plant manager, Wayne Green," and that he "kept the racial message for himself, but allowed plant management to photograph it for [their] investigation." Id. Grimm stated that he "asked [Pearson] if he could provide any suspect information concerning this incident and he replied no particular person but stated there were 'clicks' in the workplace and a number of people could be responsible." I-JA-466. According to Green, the Sheriff's Office later contacted him and told him that "it could not be determined who had created the Fiberglass Piece," and accordingly the criminal investigation was closed. I-JA-403-04. Approximately five weeks later, on June 1, 2007, Green stopped by Pearson's work area to check in with him and, according to a note to file by Green, "to review what we had done regarding the issue of the note that was left in his locker." II-JA-653. Pearson reported that someone had put resin in the lock of his locker in assembly; Green responded that "I will tell Greg Carty to get you a combination lock." Id. According to Green, Pearson told him that "nothing else had happened but he thought there were a couple people that still wanted to play games with him." Id. Green asked Pearson "if he could tell me who was playing games and he said no I don't know for sure, I have no proof I have not seen anyone." Id. Green stated that he told Pearson, "if you find anything or anything happens you know to tell me right away.... I told him we had the training for this many times and everyone knows what they are supposed to do and not do so if someone is still playing games we will catch them and we will deal with it strongly." Id. Pearson testified that he was subjected to two further racial remarks while he worked at Xerxes, both occurring in or around August 2007. He testified, first, that white coworker Sam Crone told him "that black women are nappy headed hoes," a remark that Crone made twice to Pearson and a third time to Tammy Smith, also calling her (although she was white) a "nappy-headed ho" in Pearson's presence. II-JA-557. He also testified that, around the same time, on an occasion when he was up on a ladder working on a tank, Tammy Smith "called me a monkey and she said that I look like Curious George." II-JA-558. Pearson left his employment with Xerxes for another job in February 2008. I-JA-399. He testified that, although he had been planning on staying at Xerxes because "Xerxes was paying good, I was able to put food on the table," he began looking for another job "[w]hen I seen that nothing was being done, I was still seeing the same people and still going through things." I-JA-242. Ultimately, he testified, "there is a lot of prejudice[d] people in there and I got tired of it." Id. Class member Keith Wilson began working for Xerxes on a temporary basis in October 2005 and was hired full-time as an assembler in December 2005. I-JA- 341, 399. Wilson testified that the first racial events he experienced at Xerxes occurred in November 2005, when, on two or three occasions, as described supra page 4, he and Pearson would put their lunches in the communal refrigerator during the night shift, and they would subsequently discover that "our food was gone or it was [] in the garbage." I-JA-348-50. According to Wilson, he and Pearson reported the incidents to Shifflett, but they never heard anything further. I-JA-349. Wilson also testified that Shifflett deliberately separated him from Pearson by making sure that they did not work together and disallowing them from speaking to one another. II-JA-564-65. Wilson testified that Shifflett "would sneak behind, around the beams, to see if we was [sic] doing this and ... that. It was crazy." II-JA-566. Wilson also testified that, around this same time in November 2005, "a couple of weeks before I got hired," Tammy Smith referred to him by various racial nicknames, including "Buckwheat," "Benson,"<4> and "Yellow Boy," and stating that "Keith's going to be my butler when I hit the lottery." I-JA-382, 384. According to Wilson, "[h]er main thing is, I'm not trying to offend you or I hope this don't offend you, and then she would just go ahead and blurt it out." I-JA-384. Wilson testified that he told Shifflett when Smith made these remarks, but also that "everybody else would hear her. She would be so loud and blunt with it." Id. When he was asked at his deposition why he didn't go to Green or Carty about Smith, Wilson explained that the union reps told him that "you have to go through the chain.... First, you have to tell Bob and Bob have to tell Greg and Greg have to tell Wayne and Wayne has to go to his bosses and just so on and so on ...." II-JA- 567. Wilson testified that Smith did apologize to him on one occasion after her husband told her that "you need to apologize because them is racial comments," but he testified that he did not find her apology to be sincere, and Xerxes never took any action with respect to Smith's conduct. I-JA-382. Wilson also testified that, around January or February of 2006, Amber Gatrell and Floyd Myers each called him "boy" on separate occasions. I-JA-353- 54. According to Wilson, after he reported the Gatrell "boy" incident to Shifflett, Shifflett spoke with Gatrell, and then after Gatrell told Myers about the incident Myers approached Wilson and Pearson and said "yeah, Boy, well I'll see you outside or something like that." I-JA-354. Wilson testified that Myers apologized to him shortly thereafter, but that he "didn't care about his apology.... Because it seems like every time that ... they did something wrong and we would go tell Wayne [Green] and them, that would be the first thing Wayne would say. Well, did he apologize? And we kept telling Wayne, well, how long do you expect us to take this? We're not going to keep taking apologies, you know. And they saying like an apology was, like, okay it's an apology and it's done and over with." I-JA- 354-55. Wilson testified that Green and Carty held a meeting for the "whole second shift" in February 2006 at which they reviewed the company standards for employee conduct, informed them that racial harassment was prohibited, and told the employees present that if they made offensive remarks to one another, they would be disciplined. I-JA-355-56. According to Wilson, however, after the meeting, "[i]t seemed like [it] just got worser [sic]." I-JA-356. The next incident involving Wilson occurred in June 2007. On or about June 13, 2007, Wilson discovered a small piece of paper in his locker with a drawing of a stick figure hanging from a gallows and the words "IH IH MY NIGGER" written below it. I-JA-358-59, II-JA-640. According to Wilson, after he discovered the drawing, "I went and put it back in my locker and went straight to Mark Shaffer.... I said, Mark, I just found something in my locker, you need to come look at it." I-JA-359. Wilson testified that Shaffer came and looked at the drawing and asked Wilson to "give me a day" to figure out what to do about it. Id. Wilson testified that Shaffer "came back to me and he said, well, Keith, the union is not going to do nothing about this." According to Wilson, he asked Shaffer what to do next, and Shaffer told him to go to the NAACP. Id. Wilson testified that, on the next work day, he "went to Bob Shifflett," who took the note and, as far as Wilson knew, made a copy of it. I-JA-362. Wilson also testified that he met with Green, who also made a copy of the note, "[a]nd then after that, ... I didn't hear nothing else about it." I-JA-363. Green's affidavit states that, "[o]nce Xerxes learned about Keith Wilson's allegations, Xerxes undertook extensive investigative and remedial action, conducting interviews, asking the Washington County Sheriff's Office to investigate, and generally attempting to identify the responsible individual, and to deter any future conduct. Xerxes' EEO Coordinator Mike Zais, who [sic] flew in from Minneapolis to investigate Keith Wilson's report regarding the 'Stick Figure.'" I-JA-400-01. According to Zais's August 2007 memo to Wilson, Xerxes ostensibly took the following actions in response to Wilson's complaint regarding the stick figure incident: (1) conducted employee interviews; (2) enlisted the assistance of the sheriff's office; (3) conducted re-training for all supervisors; (4) disciplined three Hagerstown employees; (5) posted notices reminding employees of prohibited conduct which, while perhaps intended to be humorous, could be offensive to other employees; (6) advised the union representative that Xerxes will discipline, including terminate, employees who engage in racial discrimination or harassment; and (7) spoke with individual employees whose conduct may have been "misunderstood." I-JA-456. The memo also noted that "[i]f we are able to determine who created that communication, and if that person is an employee, Xerxes will in all likelihood terminate their employment," but, "[u]nfortunately, our efforts, and those of the Sheriff's Office, to identify the author of that communication have been unsuccessful." Id. Zais's memo also referred to a meeting with Wilson in which Wilson "shared with me [his] concern regarding the conduct of some employees back in 2006," noting that "Xerxes did extensive training in 2006, in response to that conduct," and that Wilson "indicated to me that the offensive conduct ended after that re-training. I-JA-456. Zais also stated that Wilson had "indicated some concern about two supervisors who sometimes treat you differently, but remarked that "[t]hrough my investigation, I was unable to confirm your perception that they treat you differently," and that "[m]oreover, you did not provide any information suggesting that they treat you differently because of your race." Id. Zais' memo concluded by asking Wilson to keep Xerxes apprised of any further information he might obtain, and by telling him that, "[i]f you ever have any concerns regarding how you are being treated by your supervisor, you must immediately bring your concern to the attention of that supervisor. If you feel uncomfortable doing that, please immediately notify Plant Superintendent Greg Carty or Plant Manager Wayne Green. If Wayne or Greg are unavailable or unable to address your concern to your satisfaction, please immediately contact me." I- JA-456-57. At his deposition, however, Wilson testified that Zais's memo was factually incorrect in some respects and that Zais appeared to have had Pearson's and Wilson's cases confused, in that, for example, there had been no contact with the sheriff's office with respect to his case of which he was aware, and the reference to the discipline of three employees was a reference to Pearson's case rather than his. I-JA-394-95. The final racial incident involving Wilson occurred on August 25, 2008. I- JA-376, 458. Wilson testified that he and Tammy Smith were working on a beam in a section that was dirty, and Smith "started complaining, like, she's tired of cleaning up after these people and this and that.... She said, I hope this does not offend you, but I'm not trying to be nobody's white nigger." I-JA-376. Wilson testified that "after that, I ... told Bob and I don't know what Bob did after that, but I know she went to Bob and said, I know I don't have to go up to the office about what I said to Keith. And Bob didn't say nothing." I-JA-377. Xerxes management took the position that it never heard about this incident at all until a meeting with the EEOC's attorneys in mid-September 2008. I-JA- 458. On October 31, 2008, Green issued a memo to Wilson in which he reprimanded him for failing to report the incident to Xerxes and noting that, in so doing, Wilson "precluded us from being able to promptly investigate that alleged incident." Id. Nonetheless, according to the memo, Green investigated Wilson's allegations and reached the following conclusions: On September 17, 2008, I learned for the first time, from Xerxes' attorneys, about the incident described above which you allege occurred nearly one month earlier. The employee who you allege made that remark has denied it. You have not identified any witnesses, and you failed to promptly report that incident to Xerxes. The employee about whom you complained to the EEOC has never been complained about or subjected to discipline for having made racially offensive remarks.<5> In view of all the facts related to the incident you reported to the EEOC attorneys, I am unable to substantiate your allegation. I-JA-459. Wilson remains employed at Xerxes. The final class member, Roy Graham, testified that, shortly after he began working at Xerxes in August 2004, a white coworker, Bob Churchey, to whom he was assigned to be trained, failed and/or refused to train him for about two weeks, instead complaining to Shifflett that Graham should be fired. I-JA-72, 76-77, 108- 09. Graham also testified that Churchey used the term "nigger" "a bunch of different times" in the workplace. I-JA-103-05. He further recalled an incident where a white coworker named Darlene told him that Churchey had "called her a nigger lover for talking to me or for hanging out with me," a term that Graham had heard Churchey use on the shop floor before. I-JA-107-08. Graham testified that he complained about Churchey's racist language to Shifflett and to Carty, but that nothing was ever done about it. I-JA-111-12. The next incident Graham recalled occurred sometime in 2005. Graham testified that a "group of guys" "trailed" him from Xerxes, meaning that they followed him in another car as he drove away from work. II-JA-514. The record does not reflect whether Graham reported this incident to anyone at Xerxes. According to the record, the next time Graham complained to Xerxes management about a racial issue was in January 2007.<6> On January 19, in response to a complaint by Shifflett, Graham told Carty that he felt Shifflett was singling him out for complaints because Graham was black. II-JA-611. Graham ultimately met with Green about the issue on January 26, 2007. According to his notes, Green observed that Graham "alledged [sic] Bob does not like you because [you are] Black," and that "[you] say Bob has not said anything to you in relationship to this, [h]as not taken any action against you, nothing other than you think he stares at you strangley [sic]." II-JA-612. Green wrote, "[t]his does not constitute anything relating to harassment or discrimination." Id. The final incident involving Graham occurred on January 30, 2007. On that date, Graham went to Carty and reported that Shifflett came into the bathroom while Graham was on the toilet and looked under the stall at him. II-JA-614. Graham identified a witness, Tony Yung, who was present in the bathroom when the incident was to have occurred. Id. Graham recounted that Shifflett was "looking for me when I went to the bathroom" on "multiple different occasions," possibly out of a concern that he was "hiding from working," when he did not do so to Caucasian workers.<7> I-JA-152-53. According to Green, he investigated Graham's allegations, and Yung did not substantiate Graham's account. Green also related that, at a subsequent meeting with Graham and Shaffer on February 1, 2007, "[t]his time you indicated that Mr. Shifflett did not look under the stall at you, but you claimed that you saw him walk by the stall and look through the crack at you." II-JA-614. Graham, however, specifically testified that he had never changed his story regarding what Shifflett had done in the bathroom. I-JA-157-58. Green concluded, "based on my investigation of your recent allegation against Mr. Shifflett, I find that your report regarding him was not made in good faith because your own facts changed and the witness you identified, Mr. Yung, contradicted the facts as you described them." II-JA-614. For this and other unrelated disciplinary reasons, Green issued Graham a final written disciplinary warning, effective March 7, 2007. Id. Graham was ultimately terminated for excessive absenteeism on April 18, 2007. II-JA-616. B. District Court's Decision After reviewing the factual record, the district court began by observing that, "[t]o succeed on a claim for a racially hostile work environment, the employee must show that the harassment was: 1) unwelcome, 2) based on race, 3) sufficiently severe or pervasive to alter the conditions of employment, and 4) there was some basis for imposing liability on the employer." II-JA-835 (citing Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001)). The court then stated that it would "assume without deciding that the EEOC has satisfied the first three elements of its hostile work environment claim," noting, however, that it "doubts that the sporadic instances of harassment experienced by Mr. Graham would meet [the] threshold" of severe or pervasive harassment.<8> II-JA-846 & n.2. The court then observed that, in cases where workplace harassment is perpetrated by coworkers, "a negligence standard applies such that the employer will only be liable if 'it knew or should have known about the harassment and failed to take effective action to stop it.'" II-JA-846 (quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc)). The court noted that "an employer will be charged with 'constructive knowledge of coworker harassment when it fails to provide reasonable procedures for victims to register complaints,'" and that, "[o]nce the employer is aware of the harassment, it must 'respond with remedial action reasonably calculated to end the harassment.'" Id. (quoting Ocheltree, 335 F.3d at 334, and EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)). The court then pointed out that, "[a]s proving employer liability is part of the plaintiff's prima facie case, the plaintiff has the burden of demonstrating that the defendant failed to reasonably respond." II-JA-846-47 (citing EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 177 (4th Cir. 2009)). The district court then went on to find that the EEOC had failed to meet this burden, observing that "[t]he record [] reveals that whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it," and that "[i]nstances where Xerxes was unaware of the harassment were not caused by willful ignorance, but by the complainants' failure to notify Xerxes' management." II-JA-847. The court noted, "[s]oon after" Wilson complained to Shifflett about Gatrell's and Myers' racist comments in early 2006, Shifflett met with Gatrell and both Gatrell and Myers subsequently apologized for their remarks. Id. The court also observed that, when Green learned of these incidents in February of 2006, he held a meeting for everyone on Pearson's and Wilson's shift, "explaining Xerxes' position on harassment and warning employees that they would be disciplined for racially harassing others." Id. The court took note of Wilson's claim that the harassment grew worse after the meeting in question, but observed that Wilson "does not appear to have reported any further incidents of harassment to his supervisors." Id. Accordingly, the court found, "[g]iven the plant supervisors' prompt response to these allegations of harassment, it is reasonable that upon hearing no further complaints of harassment, Mr. Green concluded that the harassment had ended." II-JA-847-48. The court also found that the existence of Xerxes' written policy prohibiting harassment and outlining a reporting procedure further indicated that Xerxes "did not ignore racial harassment at the plant after February 2006." II-JA-848. Turning to Pearson, the district court began by stating that, although the EEOC alleged that Pearson first complained to Green about Smith's and Bradley's use of the terms "jungle music" and "nigger music" in May 2006, the first complaint date given in the record was July 2006, which was the date Pearson gave at his deposition for when he told Bachmeier about these incidents. II-JA-848. The court observed that this date was "after Mr. Bachmeier flew to the plant to investigate charges of racial harassment upon learning of Mr. Pearson's complaint filed with the Maryland Commission on Human Relations." Id. The court then found that Bachmeier "effectively responded to these allegations of harassment" by investigating Pearson's complaint, disciplining Gatrell, Myers, Bradley, and Smith, and conducting EEO retraining sessions at the plant. Id. The court contrasted what it termed Xerxes' "prompt remedial measures" with the fact that "Mr. Pearson initially refused to talk to Mr. Bachmeier when he arrived at the plant to conduct the investigation," noting that "Mr. Bachmeier persisted, however, and convinced Mr. Pearson to talk to him the following day." II-JA-849. Finally, the court observed, "Mr. Bachmeier wrote Mr. Pearson a letter outlining all the ameliorative steps he had taken and thanking him for coming forward with his complaints." Id. The court then observed that "Xerxes' pattern of earnestly responding to allegations of harassment continued as the harassment grew more severe." II-JA- 849. The court took note of the fact that Green notified the sheriff's office ten days after Pearson found the threatening fiberglass piece in his locker, and observed that, to the extent the EEOC faulted Xerxes for not reporting the incident sooner, "Mr. Green apparently had trouble gathering information from Mr. Pearson, who initially refused to speak with him about the fiberglass." Id. The court also noted that Pearson never attempted to contact the sheriff himself; rather, his "only response to the incident was filing a charge of harassment with the EEOC on April 25." Id. The court then recounted the other steps Green took in response to the fiberglass piece incident, including "interviewing employees and holding an all- staff meeting where he asked employees to come forward with information," "retrain[ing] employees on the company's EEO policy and follow[ing] up by posting the policy around the plant," checking in with Pearson afterwards to see if there were any new incidents of harassment, and offering to replace Pearson's lock after he was informed of the resin incident on June 1, 2007. Id. The court concluded, "[t]hese proactive steps to address and learn of new incidents of harassment indicate Xerxes' commitment to stopping racial harassment at the plant." Id. The court also took note of Xerxes' response to the stick-figure drawing incident with Wilson, noting that Green met with Wilson and subsequently notified Zais about the incident. II-JA-849. According to the court, Zais "flew to the plant in August where he interviewed employees, enlisted the help of the Sheriff's Office, retrained all supervisors on their responsibility to stop harassment, disciplined three employees who had made racist statements, advised the union representative that Xerxes would take strong disciplinary action in response to racial harassment, spoke with individual employees about their language, and posted notices about Xerxes' prohibition on harassment," and then thanked Wilson for coming forward with his complaints. II-JA-850. The court observed that, "[g]iven Xerxes' collective bargaining agreement with the employees' union, it is difficult to imagine what further steps Xerxes might have taken to discipline employees or to prevent future instances of harassment," and further noted that, "when asked in an interrogatory what more Xerxes could have done to stop the harassment, the EEOC did not provide a single suggestion." Id. The court concluded that "Xerxes' practice of conducting internal investigations and notifying law enforcement in cases of especially severe and threatening harassment hardly portrays a company trying to ignore racial harassment." II-JA-850. It noted that, even with respect to the Tammy Smith derogatory remarks incident of August 2008, Xerxes acted promptly to investigate the allegation once it learned of the incident. Id. It also noted that other incidents of derogatory language alleged by Pearson had never been reported to Xerxes, and accordingly Xerxes could not be charged with constructive knowledge of these incidents. Id. Finally, the court noted, "[w]hen Xerxes learned of racial harassment at the Williamsport Plant, it disciplined employees with unpaid suspensions and written reprimands. These actions set Xerxes apart from employers found to have responded inappropriately to employees' allegations of harassment." II-JA-851 (citing Central Wholesalers, 573 F.3d at 178, and Sunbelt Rentals, 521 F.3d at 320). STANDARD OF REVIEW This Court reviews a grant of summary judgment de novo. Central Wholesalers, 573 F.3d at 174. "Summary judgment should only be rendered if 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c)). At summary judgment, the court must "review all of the evidence in the record." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (the court must evaluate "the record taken as a whole"). "[T]he 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 (internal citation omitted); see also Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002) ("We make no credibility determinations, and we do not weigh the evidence."). The reviewing court "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, 530 U.S. at 151. SUMMARY OF ARGUMENT The district court made two fundamental errors in its disposition of this case. First, the court erred insofar as it ruled that class member Graham was not subjected to racially harassing conduct that was sufficiently severe or pervasive to be actionable under Title VII. Based on the evidence in the record, a reasonable jury could find that Graham, who is African-American, was subjected to repeated use of the word "nigger" and various permutations thereof in his presence by Churchey, the very same coworker who refused to train him and attempted to get him fired when he arrived at Xerxes. A reasonable jury could also find that Graham's repeated complaints about Churchey to multiple members of Xerxes' management were completely disregarded and that Xerxes took no action whatsoever against Churchey. Under the Supreme Court's and this Court's precedent, Graham's racial harassment is actionable under Title VII. Second, the district court erred in ruling that Xerxes' response to the racial harassment of all three class members was sufficient as a matter of law to avoid liability and, in multiple instances, in failing to view the facts in the record in the light most favorable to the EEOC as the nonmoving party. A reasonable jury could find that Xerxes was on notice of the harassment of Pearson by June 2005, of Wilson by November 2005, and of Graham as early as August 2004, the date of the failure-to-train incident. A jury could find that in all three cases, Xerxes management nonetheless failed to take the class members' complaints of racial harassment seriously, delaying anywhere from several months (in Wilson's case) to a year (in Pearson's case) before responding at all, or, in Graham's case, never responding. In the instances where Xerxes did eventually respond to the class members' complaints, a jury could find that the responses consisted of repetitive and generalized trainings targeted at the workforce, while perpetrators were disciplined lightly or not at all, and supervisors and managers remained ignorant of their obligations under Title VII to take racial harassment seriously. When, tragically and unsurprisingly, this volatile environment erupted in the summer of 2007 in two racially motivated threats-a KKK threat delivered to Pearson and a hanging stick figure drawing delivered to Wilson-a jury could find that Xerxes returned to business as usual after it investigated these two events and concluded it could not figure out who was responsible. Indeed, a jury could find that, when harassment of both Pearson and Wilson resumed after their respective death threats, and Xerxes supervisors continued to do nothing about it, Xerxes was more concerned with defensive documentation of what it had already done than with reeducating its supervisors about their obligations under Title VII or about taking further steps to prevent racial harassment in its workplace. In short, a reasonable jury could find that Xerxes knew about the racial harassment of all three class members but failed to take prompt or effective remedial action. ARGUMENT I. A REASONABLE JURY COULD FIND THAT ALL THREE CLASS MEMBERS WERE SUBJECTED TO HARASSING CONDUCT ON THE BASIS OF THEIR RACE THAT WAS SUFFICIENTLY SEVERE OR PERVASIVE TO CONSTITUTE A HOSTILE WORK ENVIRONMENT UNDER TITLE VII. As this Court has observed, in order to establish that a grant of summary judgment to the defendant is improper in a harassment case, the EEOC must establish "that the evidence-viewed in its favor-would allow a reasonable jury to conclude that the harassment was (1) unwelcome, (2) based on [the victim's race], (3) sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive atmosphere, and (4) imputable to [the employer]." Central Wholesalers, 573 F.3d at 175 (quoting Sunbelt Rentals, 521 F.3d at 313-14). See also Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008) (observing that "[t]he environment must be perceived by the victim as hostile or abusive, and that perception must be reasonable.... '[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'") (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal citation and quotation marks omitted)). A. Keith Wilson Xerxes has never disputed that Wilson was subjected to racially harassing conduct sufficient to constitute an actionable hostile work environment. See R.40- 1 at 36 (Xerxes' Memorandum of Law in Support of Motion for Summary Judgment). In any case, the district court correctly assumed that the conduct Wilson endured, which ranged from pranks and explicit racial slurs to a threatening message placed in his locker with a stick figure hanging from a gallows and the words "IH IH MY NIGGER" written below it, met the standard for a racially hostile work environment under either the "sufficiently severe" or the "sufficiently pervasive" test. I-JA-348-50, 382, 384. See, e.g., Spriggs, 242 F.3d at 185 (observing that, "[f]ar more than a 'mere offensive utterance,' the word 'nigger' is pure anathema to African-Americans"); Tademy v. Union Pac. Corp., 520 F.3d 1149, 1159, 1162-63 (10th Cir. 2008) (discussing the violent racial history and symbolism of the noose with respect to African-Americans and observing that, in that case, "a jury could easily find that the [display of a noose] was an egregious act of discrimination calculated to intimidate African-Americans"); Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual 15-7 (2006), http://www.eeoc.gov/policy/docs/race-color.html ("Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, [and] an unambiguous racial epithet such as the 'N-word.'"). B. Bernard Pearson Likewise, as the district court recognized, there is more than sufficient evidence in the record to support a reasonable jury's finding that the racial conduct to which Pearson was subjected was sufficiently severe and sufficiently pervasive to constitute a hostile work environment. Pearson alleged that he was subjected to an ongoing barrage of racial epithets beginning almost as soon as he began working at Xerxes, including "nigger," "boy," and "black Polack"; that coworkers told him that he listened to "nigger music"; and that certain white employees were called "nigger lovers" for associating with black coworkers or for having black family members. II-JA-632-33. Pearson also testified that he was subjected to various workplace "pranks" on the basis of his race, some of which interfered directly with his ability to do his job.<9> I-JA-351; II-JA-546, 635. Notwithstanding any remedial actions Xerxes may have taken, the racial harassment of Pearson continued, culminating in a threat on his life involving the KKK and, even thereafter, still further racial incidents (including being told that black women are "nappy-headed hos" and that he looked like a "monkey" and "Curious George" ) and further vandalism of his lock with resin. II-JA-557-58, 653. All of this evidence, considered together, is more than sufficient to establish a genuine dispute of material fact as to the presence of a racially hostile work environment for Pearson. C. Roy Graham Finally, the mere fact that the racial conduct to which Graham was subjected may have been quantitatively less than that suffered by Wilson and Pearson does not render it non-actionable, so long as it meets the legal standard. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (observing that "[t]he appalling conduct alleged in Meritor, and the reference in that case to environments 'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,' merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.") (internal citations and quotation marks omitted). Graham testified that Churchey, the senior coworker who was initially assigned to train him when he was first hired, not only refused to train him and tried to get him fired, but also used the word "nigger" repeatedly around Graham in the workplace so that Graham could hear it. I-JA-72, 76-77, 103-05, 108-09. Graham also testified that he had heard Churchey use the term "nigger-lover" on the shop floor and that his coworker Darlene told him Churchey had called her a "nigger-lover" for associating with Graham. I-JA-107-08. He further testified that he complained both to Shifflett and to Carty about Churchey's racist language, but nothing was ever done about it. I-JA-111-12. A reasonable jury could find that the repeated use of the word "nigger" around Graham, combined with management's seeming complicity therein, was sufficiently severe and/or pervasive to create a racially hostile working environment for him. See supra page 32. To the extent the district court faulted Graham for failing to recall more specific dates or details of when Churchey used the word "nigger" around him in the workplace, this was not an appropriate justification for granting summary judgment on his claim. As the Sixth Circuit has put it, "when a victim makes allegations of ongoing harassment, the 'inability to recount any more specific instances goes to the weight of [his] testimony, a matter for the finder of facts.'" Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir. 2008) (quoting Abeita v. Transam. Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)). This Court's decision in Carter v. Ball, 33 F.3d 450 (4th Cir. 1994), does not purport to establish a contrary rule and is, in any case, distinguishable on its facts. In Carter, the witness testimony at issue, according to this Court's decision, was simply that "Lt. Campbell reprimanded Carter publicly, but called other employees into his office to comment on their work performance." Id. at 455. This Court concluded, in the context of that case, "Roberts' testimony that Lt. Campbell generally reprimanded Carter publicly but spoke with Carter's white co-workers in private is not substantiated by accounts of specific dates, times or circumstances. Such general allegations do not suffice to establish an actionable claim of harassment." Id. at 461-62. In this case, on the other hand, Graham testified about specific "circumstances" in the form of narratives as to what happened (i.e., Churchey's failure to train him), epithets (i.e., "nigger" and "nigger-lover"), and complaints to which no response was ever made. The details Graham provided about the harassment he endured are a far cry from the single, very general statement offered by the witness in Carter and are more than sufficient to support the EEOC's claim that Graham was subjected to a hostile work environment. The other incidents involving Graham must be considered-especially at the summary judgment stage-in light of the backdrop of events occurring in this work environment both with respect to Graham specifically and with respect to the other class members (who, it must be noted, encompass nearly the entire African- American population of this workforce, save one individual). This Court has held that evidence of biased conduct toward other employees may be relevant to an employee's harassment claim, even if the conduct was never experienced at all by the employee in question: "Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment." Ziskie, 547 F.3d at 225; see also Spriggs, 242 F.3d at 185 (in rejecting rule that remarks must be "targeted" at plaintiff, observing that "[w]e are, after all, concerned with the 'environment' of workplace hostility, and whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and his supervisor"); EEOC Compliance Manual, Race & Color 15-7 at 36 ("Incidents of racial harassment directed at other employees in addition to the charging party are relevant to a showing of racial harassment."). In addition to the incidents involving Churchey, Graham also testified that he was "trailed" from work one day in 2005, which a reasonable jury could view as background evidence of the racially hostile work environment that was present at Xerxes for Graham as well as for Pearson and Wilson. II-JA-514. Finally, Graham also testified about two incidents in 2007 involving Shifflett, his supervisor: one in which Graham reported to management that Shifflett "stared at him strangely" in the workplace, and the second where Shifflett followed Graham into the bathroom and looked at him while he was in the stall, which was, according to Graham's testimony, only one of several incidents when Shifflett went looking for Graham when he was in the bathroom. I-JA-152-53, II-JA-614. Viewing these facts in the light most favorable to the EEOC, as required on summary judgment, a reasonable jury could find that hostile stares at and micromanagement of an employee (who the same supervisor testified was "one of the best employees he ever had" (II-JA-561), and presumably would have had no reason to micromanage) could be part of a hostile work environment. This conclusion is further buttressed by the fact that Graham had reported Churchey's racist conduct to Shifflett, among others, and Shifflett had taken no action on it. II. A REASONABLE JURY COULD FIND THAT XERXES KNEW OR SHOULD HAVE KNOWN ABOUT THE RACIAL HARASSMENT OF ALL THREE CLASS MEMBERS, BUT FAILED TO TAKE PROMPT OR EFFECTIVE REMEDIAL ACTION. As this Court has observed, "[t]he adequacy of [the 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.'" Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc); see also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995). In Ocheltree, this Court set out the basic framework for employer liability in the harassment context as follows: A Title VII plaintiff, for the fourth element of her claim, must prove that the harassment was imputable on some basis to her employer. In a case where an employee is [] harassed by a coworker, the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it.... In a case of harassment by a supervisor "with immediate (or successively higher) authority over the employee," an employer may be found vicariously liable under the standards established in Burlington Industries, Inc. v. Ellerth, 524 U.S. [742,] 765 [(1998)], and Faragher v. City of Boca Raton, 524 U.S. [775,] 807-08 [(1998)]. 335 F.3d at 333-34 (internal citations omitted). In construing this standard, this Court in Sunbelt Rentals observed that "[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.... Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment." 521 F.3d at 319 (internal citations and quotation marks omitted); see also Central Wholesalers, 573 F.3d at 177 (same). This Court has also made clear that there is no "exhaustive list of remedial measures" or particular set response that will bar employer liability in every case; rather, the question is whether, in a given case, the steps taken were "reasonably calculated to end the harassment." Central Wholesalers, 573 F.3d at 178. Thus, in Central Wholesalers, this Court observed that, when harassing conduct in a workplace escalates, an employer may be held liable for failing to "respond[] in a timely manner to all of [the charging party's] complaints and tak[e] increasingly progressive measures to address the harassment when its responses proved ineffective." Id. This Court has also emphasized the importance of prevention of workplace harassment as well as remediation, observing (in the sexual harassment context) that, "[i]n a hostile environment case under Title VII, we will impute liability to an employer who anticipated or reasonably should have anticipated that the plaintiff would become a victim of sexual harassment in the workplace and yet failed to take action reasonably calculated to prevent such harassment." Paroline, 879 F.2d at 107 (emphasis in original). In this case, a reasonable jury could find that, between August 2004 and June 2006, three out of the four total African-American employees at Xerxes' Williamsport plant complained repeatedly to one or more supervisory-level employees about racist conduct targeted at them on the job. A jury could also find that Xerxes' response to these complaints during this period was virtually nonexistent, consisting of one meeting at which the company's harassment policy was reviewed in general terms; no investigations were conducted or employees disciplined. Even once Xerxes began responding in some form to the complaints of its African-American employees from June 2006 onward, a jury could find that its responses were ineffectual and were more targeted at shielding the company from legal liability than at remediation and prevention of racial discrimination and harassment. A jury could note that, although Xerxes disciplined some of the harassers, it allowed many other incidents to go unremedied and blamed the victims for failing to identify witnesses to harassing conduct that occurred outside the presence of any witnesses. When the harassing conduct escalated in severity to the level of death threats involving the KKK, Xerxes made a virtue of necessity by calling the sheriff to investigate and then, when the perpetrators could not be identified, simply resumed what it had been doing before, retraining the workforce and blaming the victims in the same manner, even as the harassment continued. In short, there is more than enough evidence in this record to allow a reasonable jury to conclude that Xerxes failed to meet its obligation under Title VII to respond to known harassment with actions reasonably calculated to end it. A. Keith Wilson A reasonable jury could find that Wilson first put Xerxes on notice that he was being racially harassed when he began complaining to Shifflett in November 2005 about two issues: his (and Pearson's) lunches being thrown away and Tammy Smith's calling him racial nicknames such as "Buckwheat,"<11> "Benson," and "Yellow Boy." I-JA-384. Wilson then complained to Shifflett again in January/February 2006 when Gatrell and Myers each called him "boy." I-JA-354. In addition, Wilson testified that, when he discussed the issue of complaining over Shifflett's head with his union representatives, the union reps told him "you have to go through the chain" and that it was Shifflett who would have to refer complaints higher up the management ladder. II-JA-567. Under the negligence standard that applies to coworker harassment claims, Wilson's complaints to Shifflett were sufficient to put Xerxes on actual notice of his harassment both because Shifflett was a supervisor and, more importantly, because Shifflett, as Wilson's supervisor, was one of the individuals designated in Xerxes' Compliance Program Guide as an appropriate recipient of harassment complaints. The version of the Compliance Guide in effect at the time Wilson began working at Xerxes and complaining of racial harassment provided that "You may report a violation by approaching or telephoning your supervisor, Plant Manager, Corporate Department Head or a member of Xerxes' Compliance Committee, as the circumstances dictate." I-JA-487. As a legal matter, while this Court has not spoken directly on this issue in the coworker harassment context, other federal courts of appeals, including the First, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits, have routinely held that an employee's complaint to the designated recipient in the employer's harassment policy is sufficient to put the company on notice of harassment. See, e.g., Noviello v. City of Boston, 398 F.3d 76, 97 (1st Cir. 2005) (finding that, "where Plaintiff complained of [coworker] harassment to ... appropriate recipients of [her] complaints, there is enough evidence to allow a finding of actual notice on the city's part"); Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 1999) (holding that "[w]hen an employer has a policy for reporting harassment that is clear and published to its employees, and an employee follows that policy, the employer's notice of the harassment is established by the terms of the policy"); id. at 890 ("[E]mployees of such companies who believe they are victims of harassment need not be concerned with whether they pursued their complaints far enough up the company ladder."); Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998) ("When an organization designates a particular person or persons to receive harassment complaints, it sends a clear signal that those persons have the authority to accept notice of harassment problems."); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 674 (10th Cir. 1998) (noting that "knowledge will be demonstrable in most cases where the plaintiff has reported harassment to management-level employees," and holding that "a low-level supervisor [is] a management-level employee for our purposes because he was titled 'supervisor' and had some authority over Plaintiff, and many of her coworkers, and reported to [a higher-level manager]"); Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir. 1997) (Posner, J.) (observing that, where a company identifies a person "who has the duty under the employer's rules to channel complaints of sexual harassment to the employees of the company who are empowered to act upon such a complaint ..., this person becomes the natural channel for the making and forwarding of complaints," and complaints to such a person therefore constitute notice to the company). A reasonable jury could also find that Xerxes' response to Wilson's complaints fell far short of being "reasonably calculated to end the harassment."<12> Indeed, the record reflects that, in January 2006, precisely while the events at issue here were ongoing, rather than consider measures it could take to end the harassment, Xerxes management instead focused its attention on devising a plan apparently to limit its legal exposure. To this end, Xerxes adopted a new, separate harassment policy that imposed an additional and mandatory reporting burden on employees who experienced unlawful harassment in the workplace. I-JA-480. Whereas, pursuant to Xerxes' Corporate Compliance Guide, employees who became aware of any non-harassment legal or ethical violation were simply directed to report it to any one of a list of individuals, "as circumstances dictate" (I-JA-487), victims of harassment were instructed: FIRST: If Comfortable Doing So, Tell The Offender To Stop. Then, Immediately Go To Next Step Below. SECOND: Immediately Report The Incident To Your Supervisor And Plant Manager, or Department Head. Once We Learn Of The Conduct Which You Have Reported, We Will Investigate, And Take Timely And Appropriate Responsive Action. I-JA-481 (emphasis in original). The harassment policy was signed by Albert F. Dorris, President and CEO of Xerxes, and dated January 9, 2006. Meanwhile, the record reflects that Wilson's complaints fell on entirely deaf ears until February 2006, when Shifflett did finally speak with Gatrell, which resulted in Myers threatening Wilson and calling him "boy" again. I-JA-354. Shortly thereafter, Green and Carty held a meeting for the second shift at which they reviewed Xerxes' harassment policies in general, but no employee was disciplined for harassing Wilson, and Wilson testified that the situation in fact worsened after this meeting. I-JA-355-56. A reasonable jury could therefore find that Xerxes' response to Wilson's complaints at this stage was generalized and ineffectual, and did nothing to send a message to those who were harassing him that their conduct-conduct that was obviously known to management-would not be tolerated. See Central Wholesalers, 573 F.3d at 178 (observing that "there was a clear pattern in this case of complaints by Medley and then responses by Central that consistently failed to end the harassment"). Indeed, a reasonable jury could find that, not only did Xerxes' lackluster response to Wilson's earlier harassment fail as a remedial measure, but it contributed to the hostile work environment that produced the stick-figure note in June 2007. Critically, no Xerxes employee was ever disciplined for racially harassing Wilson, and a jury could find that both Myers and Gatrell knew that Wilson had complained about their calling him "boy," and that no disciplinary measures were taken against them as a result. I-JA-44, 353-54. This kind of inaction on an employer's part sends a message to harassers and would-be harassers that there will be no serious consequences for their actions. See, e.g., Tademy, 520 F.3d at 1166 (failure to investigate or remedy widespread presence of racist graffiti in workplace "not only communicated to minority employees that [they] were not welcome in the workplace but also sent a message that overt expressions of racism would not be taken seriously"); id. (observing that the fact that racially harassing conduct was allowed to continue unchecked "may well reveal more about what is acceptable in the work environment than any EEO manuals....") Moreover, a jury could find that Xerxes' response to Wilson's harassment in general and the stick-figure incident in particular was sloppy and reflected, yet again, more concern for defensive documentation than actual remediation. As Wilson noted in his testimony, Zais appears either to have been incorrect about some of the remedial measures that he outlined in his memo or to have conflated them with measures taken in response to other employee complaints.<13> I-JA-394- 95. For example, there is no record evidence that individual Xerxes employees were ever disciplined for anything relating to Wilson; the only disciplinary notices in the record were issued in connection with Bachmeier's investigation of Pearson's allegations. II-JA-645-52. Even with respect to the investigation of the stick figure, there is no record support for Zais's statements that the sheriff's office was ever contacted with respect to Wilson's note; the only sheriff's report and correspondence in the record is in conjunction with Pearson's KKK threat. I-JA- 402-03, 465, II-JA-530-32. It would stand to reason that, if the sheriff's office had investigated Wilson's threat as it had Pearson's, it would have issued an investigative report as it did in Pearson's case, but there is no such report in the record and we are aware of none. Finally, a reasonable jury could find that even in August 2008, when Wilson was once again exposed to a racial slur by Smith, a repeat offender, Xerxes was more interested in scolding him for telling the EEOC than in getting to the truth of what happened. Wilson testified that, after he reported the incident to Shifflett, Smith went up to Shifflett and told him, "I know I don't have to go up to the office about what I said to Keith," and Shifflett did nothing about it. I-JA-376-77. Indeed, according to Xerxes' own record evidence, it would appear that Shifflett did in fact do nothing about it, and Xerxes instead credited Smith's denial and blamed Wilson for not identifying any witnesses. I-JA-459. Further, Xerxes specifically stated in support of its decision to credit Smith's version of events that "[t]he employee about whom you complained to the EEOC has never been complained about or subjected to discipline for having made racially offensive remarks," a statement Xerxes knew to be untrue (as both Pearson and Wilson had complained repeatedly about Smith-the very coworker who had referred to Wilson as "Buckwheat," "Benson," and "Yellow Boy"-and she had been investigated and issued a verbal counseling for racial misconduct by Bachmeier in 2006). Id., I-JA-382, 384, II-JA-652. Thus, even after the stick figure incident, which should unquestionably have revealed to Xerxes that it had a very serious racial harassment problem at Williamsport and specifically vis-à-vis Wilson, Xerxes still failed to take action that was reasonably calculated to end Wilson's harassment, but rather focused its attention on defensive documentation. See Sunbelt Rentals, 521 F.3d at 320 (where employer warned coworkers generally not to engage in harassing behavior, but failed to discipline harassers, credited their denials, and blamed victim for building a case against company, summary judgment in favor of company on liability for hostile work environment was unwarranted). As this Court made clear in Central Wholesalers, 573 F.3d at 178, there is no one talismanic remedial measure or set of measures an employer can take to entitle it to summary judgment in any given case of racial harassment. Rather, the measures taken must be "reasonably calculated to end the harassment"-and part of what it means to be "reasonably calculated" means "taking increasingly progressive measures to address the harassment when [the company's initial] responses proved ineffective." Id. In this case, however, when Xerxes did anything at all, it took two fundamentally ineffective approaches to Wilson's repeated reports of harassment: it blamed the victim and it repeatedly applied the same remedial measures-i.e., the same ineffectual "training" it had used in the past-that had failed to stop the harassment before and continued to do so into the future. Rather than taking a different approach to educating its supervisory and managerial employees about their obligations to respond to complaints of harassment, Xerxes simply adopted a new "harassment policy" that served not to address harassment situations more effectively, but only to impose a more onerous reporting requirement on victims of harassment. It reiterated the same "training" on discrimination and harassment that obviously failed to educate Shifflett with respect to the Tammy Smith "white nigger" incident in 2008, and reprimanded Wilson for reporting this incident to the EEOC. In no sense can these measures be said to have been "reasonably calculated" to end Wilson's harassment. B. Bernard Pearson A reasonable jury could find that Xerxes had actual notice of Pearson's harassment beginning in June 2005, when the record reflects that Pearson began complaining to Shifflett, his supervisor, about the repeated incidents of racial slurs and pranks. II-JA-542, 549, 632. Just as with Wilson, supra page 42, because Shifflett was a supervisor and designated recipient of harassment complaints under Xerxes' Corporate Compliance Guide, Pearson's complaints to Shifflett constitute actual notice to Xerxes of his racial harassment. A reasonable jury could find, moreover, not only that Shifflett failed to act on Pearson's complaints when he received them, but that Shifflett affirmatively told Pearson that there was no need for him to speak to anyone else at Xerxes about the issue because he was relaying his concerns to Carty on his behalf, which was untrue. II-JA-632. Accordingly, the record supports a reasonable jury finding that Xerxes, via Shifflett, was on notice that Pearson was being harassed as of June 2005, and nothing was done about it until a year later, despite Shifflett's promises to the contrary. The facts of this case thus parallel those of Sunbelt Rentals, 521 F.3d at 320, in which "[t]here [was] scant evidence that Sunbelt, and specifically Riddlemoser, did anything meaningful in response to Ingram's verbal complaints. Despite promises to 'get to the bottom' of it, Riddlemoser allowed the harassment to continue." See also Howard v. Burns Bros., Inc., 149 F.3d 835, 841 (8th Cir. 1998) (observing that "[o]nce the plaintiff makes a submissible case [that management knew of harassing conduct but failed to put a timely stop to it], the promptness and adequacy of the employer's response to a complaint of harassment are fact questions for the jury to resolve"). The record also supports a jury finding that, as Pearson testified, Xerxes took virtually no action in response to his complaints even after Pearson's meeting with Carty in May 2006, at which Pearson told Carty directly about the incidents about which he had been complaining to Shifflett and at which Carty told him he would "take care of this" and that Pearson shouldn't tell anyone about what had been happening. II-JA-547-48, 634. A reasonable jury could also find that Xerxes did nothing to engage its EEO or investigative mechanisms until after Pearson filed his charge of discrimination with the MCHR on June 15, 2006, in light of Bachmeier's statement that he "learned from plant manager Wayne Green that Bernard Pearson had concerns about statements which non-supervisory employees had made to him" "[i]n late June, 2006." I-JA-474. Moreover, even once Xerxes did begin responding to Pearson's complaints, a jury could find that it did not do so in a manner "reasonably calculated to end the harassment." For example, although Bachmeier purported to come out to Williamsport and conduct a thorough investigation in June 2006, he failed to interview key witnesses adverse to Xerxes, including Acree, who witnessed Myers' daily use of the word "nigger" in Pearson's presence and who also heard Churchey use the term "nigger music" and was asked by Churchey why she "want[ed] to mess with niggers." II-JA-554, 556, 633, 642- 43. Bachmeier also did not interview Dennis Shade, another coworker who witnessed Amber Gatrell's use of the "N" word in Pearson's presence. II-JA-644. Instead, Bachmeier interviewed witnesses favorable to Xerxes' interests and ultimately issued nonsensical conclusions determining that, even though all of the alleged perpetrators credibly denied Pearson's claims or indicated that they had apologized, and all of the Xerxes supervisors interviewed "credibly disputed Mr. Pearson's contention that he spoke to them or Mr. Pearson's version of their communications," Myers, Gatrell, Bradley, and Smith would nonetheless be subjected to discipline-apparently for having done nothing wrong in Xerxes' eyes. I-JA-475-77. In addition, Bradley and Smith received little more than a slap on the wrist for their infractions. II-JA-650-52. A reasonable jury could also find that, in light of the events that had been taking place for almost a year prior to this point, the actions Xerxes took and the doubtful light in which it cast Pearson's complaints were too little, too late. This conclusion was made all the more apparent by the events of spring and summer 2007, beginning with Pearson's discovery of the KKK threat on the fiberglass piece in April 2007. Just as with Wilson, a jury could find that Xerxes' nonexistent, and then lackluster, response to the racial harassment of Pearson that had been occurring over the last two years was exactly what sent a message to the author of the threatening message that this kind of conduct would be tolerated at the Williamsport plant. See supra page 46. Finally, even after the KKK threat, the ongoing actions of Xerxes managers toward Pearson revealed that they still failed to understand their obligations under Title VII and their own Compliance Guide to prevent and correct racial harassment. When Pearson reported to Green in June 2007 that someone had put resin in his lock, Green, by his own account, simply responded by telling him that Xerxes would get him a combination lock and asking him to tell him if Pearson heard anything else. II-JA-653. A reasonable jury could find that replacing Pearson's lock was entirely beside the point under the circumstances: the racial harassment was continuing, and Xerxes failed even to recognize it as such or to investigate who might be vandalizing Pearson's work area. Instead, Green simply told Pearson that the harassment training had been conducted "many times," as if to suggest that going through the motions of training the workforce discharged Xerxes' obligation, and leaving it up to Pearson to bring any further information to his attention. Id. As a legal matter, this view is simply wrong. See, e.g., Central Wholesalers, 573 F.3d at 178 (noting employer's failure to "tak[e] increasingly progressive measures to address the harassment when its response proved ineffective"); Adler, 144 F.3d at 676 ("The employer is, of course, obliged to respond to any repeat conduct; and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective. Repeat conduct may show the unreasonableness of prior responses."). Moreover, Pearson testified that he was still being subjected to racist language by two different coworkers as late as August 2007 (II-JA-557-58), so a jury could conclude that Xerxes' failure to take any further action in response to racist conduct in the workplace after the KKK incident had precisely the predictable effect. Accordingly, looking at the totality of Xerxes' response to Pearson's harassment-i.e., none at all until June 2006, and only ineffectual thereafter-a reasonable jury could find that Xerxes both "knew ... about the harassment and failed to take effective action to stop it." Ocheltree, 335 F.3d at 334. C. Roy Graham Finally, with respect to the harassment of Graham, a reasonable jury could find that Xerxes was virtually unresponsive to several of Graham's complaints of racial harassment. Regarding the incidents of harassment involving Graham's coworker Bob Churchey (i.e., Churchey's refusal to train Graham and repeated use of the word "nigger,") Graham testified that he complained to both Shifflett and Carty on multiple occasions about Churchey's language, and that Shifflett was involved directly with the failure to train incident. I-JA-111-12. Accordingly, for the same reasons outlined above, supra page 42, a reasonable jury could credit Graham's testimony and find that Xerxes was on notice of Graham's harassment when he complained to Shifflett and Carty throughout his employment. To the extent that the court faulted Graham for his failure to recall the specific dates of his complaints, as already explained above, Graham testified that he complained to Shifflett and Carty when the incidents occurred, and it would be for a jury to determine how credible it found his account vis-à-vis Xerxes'. See supra page 36. As far as the adequacy of Xerxes' response to Graham's complaints, a reasonable jury could find that Xerxes simply did not respond. I-JA-76-77, 111- 12. There is no evidence in the record that anything was done about Graham's complaints about Churchey's repeated use of the word "nigger" in his presence, and Churchey was never disciplined in any fashion whatsoever. Even when Bachmeier came to Williamsport in 2006, his failure to interview Acree meant that he failed to seek out a key source of corroboration for Churchey's ongoing and persistent use of the word "nigger" in the workplace, and, in any case, Bachmeier never purported to investigate Graham's complaints at all. I-JA-474-78, II-JA- 642-43. Thus, a reasonable jury could find that Xerxes did nothing in response to Graham's complaints of harassment by Churchey, and summary judgment was inappropriate as to Xerxes' liability on this point. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. REQUEST FOR ORAL ARGUMENT Given the importance of this appeal to the proper interpretation of Title VII and the EEOC's enforcement efforts, the Commission respectfully requests oral argument. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,961 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: June 18, 2010 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief via the CM/ECF System and filed eight hard copies of the foregoing brief with this Court this 18th day of June, 2010, by next-business-day delivery, postage pre-paid. I also certify that the CM/ECF System will send notice of such filing to the following registered CM/ECF users: Counsel for Defendant/Appellee: Robert C. Castle Aaron Mills Scott Oppenheimer Wolff & Donnelly LLP 45 South Seventh St., Ste. 3300 Plaza VII Building Minneapolis, MN 55402 (612) 607-7577 RCastle@oppenheimer.com s/Elizabeth E. Theran Elizabeth E. Theran Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> "[#]-JA-[#]" refers to material in the Joint Appendix, cited by volume and page number. "R.[#]" refers to the district court docket entry. <2> At Pearson's deposition, the date given by Xerxes' attorney for this meeting was May 2005, but based on context the year had to be 2006, given that Pearson stated that by this time the harassment had gone on for "almost a year." II-JA-547-48, 633. <3> Pearson subsequently signed a form indicating that he withdrew this charge, but he testified that he did so based on a misunderstanding between him and the MCHR representative who was his contact at the agency. I-JA-239-41, II-JA-630- 31. <4> This was a reference to the lead character, Benson DuBois, on the television series "Benson" (1979-1986), an African-American butler serving a widowed governor and his family. II-JA-568-69; "Benson" (1979), http://www.imdb.com/title/tt0078569/ (last visited June 2, 2010). <5> As described above, supra page 8, Smith had, in fact, been given a verbal counseling, as documented in a written memorandum, for her use of racial language in connection with Bachmeier's investigation of Pearson's allegations in July 2006. II-JA-652. <6> Graham testified about an incident where a white coworker, Floyd Myers, stared at him in his work area, but he could not recall when this happened and testified that he did not report this incident to anyone at Xerxes. I-JA-120-22. <7> However, Shifflett testified at his deposition that "Roy Graham was one of my best employees I ever had [at] Xerxes." II-JA-561. <8> The court noted later in the opinion that "the harassment alleged by Mr. Pearson and Mr. Wilson was severe and the EEOC's investigation into the harassment was certainly appropriate. II-JA-851 n.5. There was no further discussion of the EEOC's claim on behalf of Graham in the rest of the district court's decision. <9> With respect to all of the incidents in the record where the class members alleged that they were subjected to hostile treatment that was not facially racial, but that nonetheless occurred on the basis of their race, this Court has acknowledged that such incidents may be considered as part of a hostile work environment when a jury could find that they occurred on the basis of a protected characteristic. See, e.g., Sunbelt Rentals, 521 F.3d at 317-18 (finding that harassment "lacking a direct religious nexus" was nonetheless part of charging party's religious harassment claim on grounds that, "[i]n light of the extensive, explicitly religious harassment by the same coworkers, a reasonable jury could infer that other harassing incidents were also motivated by a disdain for [his] faith"); see also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995) (considering as part of plaintiff's hostile work environment claim his allegation that his supervisor "intentionally tried to embarrass him by giving him impossible tasks and by saying in front of coworkers that Amirmokri did not know what he was doing," and concluding that "[a] reasonable person could easily find this atmosphere to be hostile"). See also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (observing that conduct "[that] may appear innocent or only mildly offensive to one who is not a member of the targeted group ... [may] in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group"). <10> See Spriggs, 242 F.3d at 185 ("To suggest that a human being's physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme."); White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (same). <11> As the Eighth Circuit has observed, "[t]he term 'Buckwheat' is a racial slur when it is directed towards a black employee in the context of an employment relationship." Simmons v. Oce-USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999); see also Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329 (5th Cir. 1998), cert. denied, 526 U.S. 1051 (1999). <12> The EEOC has consistently taken the position, since the outset of this case, that Xerxes failed to take adequate remedial measures to prevent and/or correct the harassment in this case with respect to all three class members, and has provided multiple specific examples of Xerxes' failures in this regard throughout this litigation. The district court's (and the defendant's) reliance on what is, at most, an overly general answer to an interrogatory propounded by Xerxes (II-JA-719) to argue that the Commission has never offered a factual basis for its arguments that Xerxes' remedial and corrective measures in this case were inadequate is simply baseless. Moreover, nothing about the EEOC's response to Xerxes' interrogatory, drafted well after the events of this case occurred, has any power to affect retroactively the measures that Xerxes did or did not take in response to the harassment of the class members or to render them more or less adequate as a matter of law. In other words, either Xerxes' actual actions violated Title VII or they did not, regardless of how the interrogatory was answered. <13> Indeed, Zais noted in the memo itself that "Xerxes has, in response to your concern and in light of the concerns of two other employees, taken the following actions during the last several weeks...." I-JA-455 (emphasis added). Although Acree no longer worked at Xerxes at the time of Bachmeier's investigation (II-JA-760), Bachmeier knew of her and could have interviewed her if he had so chosen. According to his own testimony, Bachmeier simply chose not to interview Acree because he believed her to be a "peripheral ... participant in this" and "determined that [interviewing her] wasn't necessary." I-JA-30.