PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TIFFANY MOSBY-GRANT,
Plaintiff-Appellant,
v. No. 09-2161
CITY OF HAGERSTOWN,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(1:07-cv-01940-BEL)
Argued: October 28, 2010
Decided: December 20, 2010
Before NIEMEYER and GREGORY, Circuit Judges,
and Damon J. KEITH, Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit,
sitting by designation.
Reversed in part and remanded by published opinion. Judge
Gregory wrote the majority opinion, in which Senior Judge
Keith joined. Judge Niemeyer wrote a dissenting opinion.
2 MOSBY-GRANT v. HAGERSTOWN
COUNSEL
Brian M. Maul, GORDON & SIMMONS, LLC, Frederick,
Maryland, for Appellant. Matthew Douglas Peter, Hanover,
Maryland, for Appellee.
OPINION
GREGORY, Circuit Judge:
Tiffany Mosby-Grant, an African American female and for-
mer recruit enrolled at the Western Maryland Police Academy
(hereinafter the "Academy"), sued the City of Hagerstown
(hereinafter the "City") alleging violations of Title VII of the
Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(d). Mosby-
Grant brought separate race and sex claims alleging that her
instructors and classmates at the Academy created a hostile
work environment. The district court awarded summary judg-
ment to the City. After considering Mosby-Grant’s appeal, we
reverse the grant of summary judgment on her sexual harass-
ment claim. However, we affirm the grant of summary judg-
ment on her race claim.
I.
A.
Mosby-Grant, the plaintiff-appellant, was enrolled in the
Academy from January 9, 2006 until May 25, 2006. The
Academy provides training to individuals seeking employ-
ment as law enforcement officers, and is operated by the
Hagerstown Police Department ("HPD"). The HPD is an
organ of the City, the defendant-appellee.
Students enroll in the Academy in one of two ways. Spon-
sored students are provisionally hired by a local police depart-
MOSBY-GRANT v. HAGERSTOWN 3
ment pending their successful completion of the Academy’s
curriculum. The sponsoring police department pays the tuition
of its sponsored students. Unsponsored students voluntarily
enroll in the Academy and have not yet been hired by any law
enforcement agency. These students are responsible for pay-
ing their own tuition. Mosby-Grant was an unsponsored stu-
dent and responsible for her own tuition while at the
Academy.
Mosby-Grant had also begun the formal process of apply-
ing to become an HPD officer, passing an initial examination
and participating in an interview. If she had passed her fire-
arms qualification test, the City would have hired her. Ex. 3
(Kline Aff. ¶ 12), Def.’s Mem. Supp. Summ. J., Mosby-Grant
v. City of Hagerstown, No. 1:07-cv-01940 (Aug. 20, 2007).1
Mosby-Grant started at the Academy with sixteen other
recruits, all of whom were male. One of the other male
recruits was bi-racial, partially of African American descent.
All of the other recruits were white. For reasons unrelated to
this case, one of the white male recruits withdrew during the
first week.
In the three years prior to Mosby-Grant’s enrollment at the
Academy, only four women and no African Americans were
enrolled. Between 2003 and 2006, there have only been two
African American instructors at the Academy, out of a total
of more than 100 instructors. There has never been an African
American female instructor. Lieutenant Margaret Kline, a
1
On appeal, neither party disputes that the City was Mosby-Grant’s
employer as defined by Title VII. The issue was raised by the City in its
first motion for summary judgment, and was resolved in Mosby-Grant’s
favor by the district court. Mem. Denying Def.’s Mot. Summ. J., Mosby-
Grant v. City of Hagerstown, No. 1:07-cv-01940, at *4, (Feb. 8, 2008)
(citing 42 U.S.C. § 2000e-2(d); Saville v. Houston County Healthcare
Authority, 852 F. Supp. 1512 (M.D. Ala. 1994); Flores v. Hartford Police
Dept., No. H-79-411, 1981 U.S. Dist. LEXIS 11484, at *1 (D. Conn. Feb.
17, 1981)).
4 MOSBY-GRANT v. HAGERSTOWN
white female and the current Director of the Academy, admit-
ted that the Academy is not very diverse. However, as noted
above, the Academy itself had no control over the enrollment.
During Mosby-Grant’s first two weeks at the Academy, the
recruits were told that they would have to pass a firearms test
on qualification day in order to graduate. Around that time,
recruits also attended sexual harassment training. Lieutenant
Kline gave a presentation about the unfortunate history of
sexual harassment at the Academy, and efforts by the Acad-
emy to prevent future harassment.
Until her final few weeks, Mosby-Grant had excelled aca-
demically at the Academy. Nonetheless, throughout the train-
ing course, Mosby-Grant was exposed to a number of serious
instances of harassment by her peers and instructors. Mosby-
Grant claims that this harassment led her to abandon the
HPD’s application process, and contributed to her failure to
pass the final firearms qualification test.
B.
Because Mosby-Grant was the non-movant in the summary
judgment proceedings, we recite the following specific facts
and examples that Mosby-Grant claims establish the existence
of a hostile work environment at the Academy in the light
most favorable to her. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
While at the Academy, Mosby-Grant felt isolated by her
peers on account of her sex. For example, Mosby-Grant often
had trouble finding training partners when the Academy
required one and felt shunned by her cohorts. She was unpop-
ular amongst her peers because of her disinterest in participat-
ing in their "juvenile behavior," including some of the
behavior described below, and her refusal to "gossip about
people." Joint Appendix ("J.A.") 357.
MOSBY-GRANT v. HAGERSTOWN 5
Mosby-Grant once overheard a white male recruit tell the
biracial recruit, "[w]here I’m from, people like you are strung
up from a flagpole." J.A. 313-14. The white male recruit also
made a comment about the biracial recruit "being dragged
from the back of a truck." J.A. 317. Mosby-Grant did not hear
what prompted the comments, and they were not directed at
her.
Mosby-Grant immediately confronted the white recruit
about the nature of his comments, and he apologized. When
the two spoke again later in the day, Mosby-Grant explained
how the comments had surprised and offended her. He apolo-
gized again, and told Mosby-Grant that he and the other
recruit had been joking. Mosby-Grant had never heard him
make any racially insensitive comments about African Ameri-
cans in the past. She also never heard the recruit or anyone
else at the Academy make any other inappropriate remarks
about African Americans.
Mosby-Grant heard recruits use other racially charged
remarks, including the terms "honky" and "cracker." J.A. 284,
313, 318-19. Specifically, Mosby-Grant heard another recruit
refer to singer Britney Spears as "white trash" and "ghetto."
J.A. 284. In addition to expressing to Lieutenant Kline her
general sense of the difficult environment at the Academy,
Mosby-Grant mentioned the comments about Britney Spears
to Lieutenant Kline.
On at least two occasions, she also heard a recruit derogato-
rily refer to other recruits and passersby as "fucking Mexi-
cans." J.A. 318-20. She does not recall whether instructors
ever heard these particular comments, or whether she ever
reported them.
Mosby-Grant had a minor altercation with a white male
recruit while training. During an exercise drill, Mosby-Grant
and the recruit reached for a ball that they were both
instructed to retrieve. Mosby-Grant grabbed the ball first, but
6 MOSBY-GRANT v. HAGERSTOWN
the recruit snatched it from her. Mosby-Grant sought to grab
the ball back from the recruit and, in the ensuing struggle, he
bumped Mosby-Grant and scratched her wrist. Mosby-Grant
yelled at the recruit to "calm down." J.A. 363. The male
recruit was told by the instructors to sit out the rest of the
exercise. It is not clear whether Mosby-Grant ever spoke to
Lieutenant Kline about this incident.
Mosby-Grant heard the word "bitch" used by male instruc-
tors and other recruits on at least ten occasions over the
course of her almost five months of training. J.A. 325. One
day in the classroom, Detective Carl Hook used the word to
describe a woman on the street. While recalling a moment
where Hook and Mosby-Grant bumped into one another dur-
ing a training exercise, Hook used the term to describe
Mosby-Grant herself. Detective Hook began "I saw her, and
it was like this bitch" and then continued the story. J.A. 329.
Although uncomfortable with the comments, Mosby-Grant
did not discuss it with Lieutenant Kline.
Between classes or during down time, other recruits would
often sing a song that included the phrase "asses, titties and
big booty bitches" in Mosby-Grant’s presence. J.A. 323. This
song was never sung in class. Mosby-Grant does not know
whether instructors ever heard it sung by recruits, and she
never brought it to Lieutenant Kline’s attention.
Mosby-Grant also heard her fellow recruits use the word
"bitch" on several other occasions either before class or dur-
ing fitness training. J.A. 329. She does not recall the context
of when she heard the word or whether instructors ever heard
the word used by recruits, but it was likely not directed at her.
Indeed, Lieutenant Richard T. Reynolds, Lieutenant
Kline’s predecessor as Academy Director, testified that he
would sometimes use the term in a "teaching" or "jocular"
manner in front of recruits and, at times, that he had heard the
word used by instructors and recruits alike. J.A. 675C-676.
MOSBY-GRANT v. HAGERSTOWN 7
As a part of a training session meant to instruct recruits on
how to deal with an inebriated person, Lieutenant Michael
King became intoxicated and the recruits were ordered to
restrain him. During the session, Mosby-Grant heard Lieuten-
ant King call a male recruit a "pussy" several times. J.A. 274-
75. Mosby-Grant heard the statements, and reported them to
Lieutenant Kline. Lieutenant Kline said she would "get back
to the chief about this." J.A. 280. However, it is unclear what
corrective actions, if any, were ultimately taken.
Mosby-Grant also often heard her classmates make crude
comments about women passing by or visiting the Academy,
specifically commenting on the women’s physical appear-
ances and parts of their anatomies. Mosby-Grant spoke to
Lieutenant Kline about these incidents.
In April 2006, the recruits gathered outside of training to
discuss the issues that they had with one another. Several
recruits complained that Mosby-Grant was receiving "special
treatment" because she was a woman. J.A. 355-56, 368. The
recruits specifically mentioned that Mosby-Grant wore differ-
ent pants with stripes, wore her hair in a ponytail allegedly
inconsistent with the dress code, had been late to class, and
had failed to participate in certain informal group activities.
The other recruits also made comments about her eyelashes.
Mosby-Grant informed the recruits of the reasonable explana-
tions for her alleged dress code "violations." The pants were
loaned to Mosby-Grant by Lieutenant Kline because the stan-
dard issue stripe-less pants did not fit her properly; her hair
was in a ponytail in compliance with a recent change in the
dress code; and Mosby-Grant had been given permission to be
late in order to speak with Academy administrators about her
problems paying tuition. No other recruit was subjected to
similar criticisms at the meeting. Mosby-Grant felt singled out
as the only woman.
Later that day, Mosby-Grant discussed the meeting with
Lieutenant Kline. Kline informed Mosby-Grant that many of
8 MOSBY-GRANT v. HAGERSTOWN
her classmates were not in compliance with various dress
code requirements, and that there would be stricter dress code
enforcement. It is not clear whether Lieutenant Kline ever
took any action to correct the recruits’ behavior.
During her participation in the Emergency Vehicle Opera-
tion Course ("EVOC"), Mosby-Grant observed several
recruits snickering and making critical comments. No recruit
laughed or snickered as the males completed the course.
Unbeknownst to Mosby-Grant at the time, the other recruits
were directed by Academy instructors to go inside a trailer
and close the windows and blinds while Mosby-Grant com-
pleted the EVOC training. The instructors were concerned
that the recruits’ snickering was disturbing Mosby-Grant.
After the course, Detective Casey Yonkers, an instructor,
approached Mosby-Grant and told her that, in his estimation,
Mosby-Grant was "being excluded" by the others, and he did
not like it. J.A. 233-34. Yonkers told Mosby-Grant that he had
"never seen anything like this during [his] time of training or
doing the [EVOC] course." J.A. 234. He also observed that
this had been "the worst team-effort support" put forth by
recruits for another recruit that he had ever seen. J.A. 234.
Hearing this, Mosby-Grant began to cry, and Yonkers said
that he would bring his concerns to Lieutenant Kline. Mosby-
Grant herself also complained to Lieutenant Kline.
During domestic violence training and in front of instruc-
tors, several of Mosby-Grant’s fellow recruits belittled the
value of the training. Specifically, they said that women "cry
this or that" and then after they call the police "they just go
back to the same guy who just beat them up." J.A. 308.
Another day, during physical training, instructors asked the
male recruits how they felt about domestic violence classes.
The recruits responded that the training was boring and
repeated their comments about female victims returning to
their assailants. Mosby-Grant brought the comments to Lieu-
MOSBY-GRANT v. HAGERSTOWN 9
tenant Kline’s attention, and Kline responded, "You know
they’re going to see. When they get out there, they’re going
to see it’s not the same." J.A. 311-12. Lieutenant Kline took
no steps to correct the recruits.
On approximately five occasions, Mosby-Grant overheard
her classmates discussing a sexual encounter that at least one
recruit had with a drunken sixteen year-old girl. Mosby-Grant
heard the girl described as "crazy" by a recruit. J.A. 255. In
one instance, the entire class was sitting together during a
lunch break when some of the recruits began discussing their
last encounter with the girl. The recruits called the girl a
"homeless girl" and a "magician" because she had a rabbit and
dog with her. J.A. 262-63. Mosby-Grant never found any of
the terms used to describe the girl derogatory.
Chris Nicholson, a recruit Mosby-Grant was friendly with,
also approached Mosby-Grant to speak with her about the
girl. He confided in her as a friend because he was concerned
about the other recruits’ behavior. She listened to Nicholson,
and shared his concern.
On five to ten occasions, the male recruits baselessly
referred to a one-legged woman who frequently wandered
outside of the recruits’ hotel as a "prostitute" and "dope
fiend." J.A. 264-66. On at least one occasion, Mosby-Grant
also heard recruits laugh at an elderly woman when she mis-
pronounced an officer’s name while asking for directions and
refer to the woman as "crazy." J.A. 321-22.
Mosby-Grant overheard other recruits discussing porno-
graphic movies on three or four occasions. Mosby-Grant also
overheard a recruit talking about bringing pornography to the
Academy to share with others. However, none of her class-
mates ever discussed pornography with her or showed her any
pornography.
Captain Moulton, Lieutenant Kline’s superior, wanted
Mosby-Grant kicked out of the Academy because of Mosby-
10 MOSBY-GRANT v. HAGERSTOWN
Grant’s problems paying tuition. Kline also allegedly told
Mosby-Grant that other recruits were in similar financial
straits, but had not been threatened with expulsion by Captain
Moulton.
All recruits had two weeks of firearms training. Prior to
firearms training, Mosby-Grant had never fired a weapon
before. She was aware, however, that, in order to graduate,
each recruit had to pass a firearms test on qualification day.
All of the instructors who worked with Mosby-Grant dur-
ing firearms training "were very obliging in their teachings
and suggestions." J.A. 585. Her instructors were very kind
and considerate of [her] needs." J.A. 585. Mosby-Grant and
one other recruit received significant one-on-one training.
Lieutenant King, the lead firearms instructor, testified that
Mosby-Grant received more practice than any other student,
including extra practice on qualification day. While working
with Mosby-Grant, Lieutenant King told Mosby-Grant that he
would "get [her] through this," i.e. the firearms course. J.A.
292, 691B. The day before qualification day, Mosby-Grant
was performing at a level necessary to pass her timed firearms
test.
However, on qualification day, Mosby-Grant failed to
achieve the scores necessary to pass. While attempting to pass
the test, Mosby-Grant overheard the other recruits chattering
and laughing. Although Mosby-Grant did not know what they
were discussing, all of the other recruits had qualified by this
time.
Mosby-Grant believes that her negative experiences at the
Academy and the ridicule she was exposed to on qualification
day led her to fail. Lieutenant King testified that he believed
"stress" and the time constraints on qualification day caused
Mosby-Grant to fail the test. J.A. 691-91B. Sergeant Wood,
another firearms instructor, also testified that "stress" and
MOSBY-GRANT v. HAGERSTOWN 11
Mosby-Grant’s loss of focus during the test led to her poor
performance. J.A. 693A.
As recalled above, Mosby-Grant made Lieutenant Kline,
the Academy Director, aware of her concern that she was
being treated differently because of her sex and/or race. Lieu-
tenant Kline also testified that she had several conversations
with Mosby-Grant about how Mosby-Grant "was uncomfort-
able with being considered different." J.A. 695A-95B.
According to Lieutenant Kline, Mosby-Grant was different
because she was "a black female." J.A. 696C-97.
On May 30, 2006, after Academy training had ended,
Mosby-Grant sent a detailed memorandum about her negative
experiences to Lieutenant Kline. However, Mosby-Grant
admits that, during training, she did not bring all of her con-
cerns to Lieutenant Kline.
Mosby-Grant would leave the Academy everyday in tears.
As a result of her experiences at the Academy, Mosby-Grant
has suffered from sleeplessness, loss of focus at work, low
self-esteem, and fear of retaliation. Dr. Christiane Tellefsen is
Mosby-Grant’s expert and a board certified forensic psychia-
trist. Dr. Tellefsen believes that Mosby-Grant’s experiences at
the Academy caused her to develop chronic Adjustment Dis-
order with Depression and Anxiety, which will require further
treatment.2 J.A. 703-710.
C.
On August 23, 2006, Mosby-Grant filed a complaint with
the Equal Employment Opportunity Commission ("EEOC")
against the City for violations of Title VII. Upon receiving her
right to sue notice, Mosby-Grant initiated a lawsuit, specifi-
2
Dr. Michael Spodak, the City’s expert psychiatrist, also examined
Mosby-Grant; but does not believe her experience caused any "psycholog-
ical or emotional illness or disorder." J.A. 733-40.
12 MOSBY-GRANT v. HAGERSTOWN
cally alleging sex- and race-based hostile work environment
claims, in the United States District Court for the District of
Maryland on July 23, 2007.
On August 20, 2007, the City filed a motion to dismiss or,
alternatively, for summary judgment. Mosby-Grant filed her
opposition brief, and the City replied. On February 8, 2008,
the district court denied the City’s first motion for summary
judgment.
On October 29, 2008, after discovery and depositions were
completed, the City filed a second motion for summary judg-
ment. On September 24, 2009, following briefing, the court
granted the City’s second motion for summary judgment. A
timely appeal was filed on October 6, 2009.
II.
On appeal, we must decide whether the district court erred
in dismissing Mosby-Grant’s hostile work environment
claims on summary judgment. "We review the district court’s
summary judgment ruling de novo, viewing the facts in the
light most favorable to . . . the nonmoving party and drawing
all reasonable inferences in her favor." Doe v. Kidd, 501 F.3d
348, 354 (4th Cir. 2007) (citation omitted).
We find that Mosby-Grant presented enough evidence for
a reasonable jury to conclude that she was exposed to a hos-
tile work environment because of her sex. To demonstrate
sexual harassment and/or a racially hostile work environment,
a plaintiff must show that there is "(1) unwelcome conduct;
(2) that is based on the plaintiff’s sex [and/or race]; (3) which
is sufficiently severe or pervasive to alter the plaintiff’s condi-
tions of employment and to create an abusive work environ-
ment; and (4) which is imputable to the employer." Connor v.
Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 192 (4th Cir.
2000) (citations omitted).
MOSBY-GRANT v. HAGERSTOWN 13
It is undisputed that the conduct was unwelcomed. The
numerous complaints Mosby-Grant made to Lieutenant Kline
about the conduct are enough to meet this prong. EEOC v.
Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009).
However, the other elements are disputed and, therefore, are
addressed in detail below.
A.
i.
Based on the facts, it is apparent that the other recruits’
conduct was directed at Mosby-Grant because of her sex. A
factual record that demonstrates that the workplace was con-
taminated with explicit and derogatory references to women
provides an adequate basis for a plaintiff to show that the
harassment occurred "because of" her gender. Smith v. First
Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir. 2000).
Here, Mosby-Grant, the only female recruit, was consis-
tently made to feel like an outsider by her classmates and
some instructors, with one instructor even referring to her as
a "bitch." Mosby-Grant felt ostracized in part because of her
classmates’ "juvenile behavior," including their constant use
of sexist language and disparaging remarks about women. In
Mosby-Grant’s presence, recruits would regularly sing sexu-
ally explicit lyrics, and describe women as "bitches," "prosti-
tutes," "crazy," and "dope fiends," and denigrate the female
victims of domestic violence. See Jennings v. University of
North Carolina, 482 F.3d 686, 695-96 (4th Cir. 2007) (en
banc) (finding that, in an analogous Title IX case, the plaintiff
had demonstrated a hostile environment where most of the
sexist comments were directed at others); Spriggs v. Diamond
Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) ("We are . . .
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
[the harasser]."). Although the sexist language was rarely
14 MOSBY-GRANT v. HAGERSTOWN
directed at Mosby-Grant herself, her classmates explicitly told
Mosby-Grant that they felt she was "asking for special treat-
ment because [she is] a woman." The male recruits also
noticeably singled Mosby-Grant out for special scorn during
trainings. Given these facts, a reasonable jury could find that
Mosby-Grant was targeted because of her sex. See Ocheltree
v. Scollon Productions, Inc., 335 F.3d 325, 331-33 (4th Cir.
2003) (holding that coworkers’ "sex-laden and sexist talk and
conduct," such as the singing of offensive lyrics, in the pres-
ence of the plaintiff, the workplace’s only woman, constituted
sex-based harassment).
ii.
Mosby-Grant also suitably established that some of the
unpleasant encounters between her and the other recruits were
the result of race-based enmity. "To establish a hostile envi-
ronment claim, [the plaintiff] must show that ‘but for’ his race
. . . , he would not have been the victim of the alleged dis-
crimination." Causey v. Balog, 162 F.3d 795, 801 (4th Cir.
1998). The references of recruits to the historical lynching of
African Americans, in particular, the brutal murder of James
Byrd, Jr.3, and their use of derogatory terms like "fucking
Mexicans," "honky," and "ghetto" demonstrate that there was
a level of racial hostility at the Academy. These comments are
enough to suggest that the recruits’ conduct was motivated by
race.
3
The recruit’s comment about "being dragged from the back of a truck"
was an apparent reference to Byrd’s racially motivated murder on June 7,
1998. Byrd’s murder was widely reported and became symbolic of "the
horrors of racism." 10 years later, dragging death changes town,
MSNBC.com (June 6, 2008), http://www.msnbc.msn.com/id/25008925/
38706994. Byrd, a 49-year-old African American man, was beaten by
three white men who then chained him by the ankles to the bumper of a
Ford pickup, and dragged him down the street. Id.
MOSBY-GRANT v. HAGERSTOWN 15
B.
The work environment was severe or pervasive enough to
sustain Mosby-Grant’s sex claim, but not her race claim. In
measuring whether the offensive conduct is severe or perva-
sive enough to warrant relief, we must look at the totality of
the circumstances, including: the "frequency of the discrimi-
natory conduct; its severity; whether it is physically threaten-
ing or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work perfor-
mance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-
88 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
23 (1993)). "[I]n the Fourth Circuit, the question of whether
‘harassment was sufficiently severe or pervasive is quint-
essentially a question of fact.’" Hartsell v. Duplex Products,
Inc., 123 F.3d 766, 773 (4th Cir. 1997) (quoting Paroline v.
Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989), vacated in
part on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc)).
Nonetheless, Title VII does not create a "general civility
code" in the workplace; it only proscribes behavior that is "so
objectively offensive as to alter the ‘conditions’ of the vic-
tim’s employment." Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 81 (1998); see also Baskerville v. Culligan
Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995) ("[Sexual harass-
ment law] is not designed to purge the workplace of vulgar-
ity.").
i.
Sexist comments were pervasive at the Academy and were
frequently made to Mosby-Grant or in her presence. As noted
above, throughout the short period Mosby-Grant spent at the
Academy, she heard her fellow recruits brazenly and repeat-
edly describe a sexual encounter with a sixteen year-old girl.
See Jennings, 482 F.3d at 697-99 (finding that the defendant’s
constant, open discussion of his sexual fantasies and the sex
lives of the plaintiff and her teammates created a pervasively
hostile environment). She also heard recruits and instructors
16 MOSBY-GRANT v. HAGERSTOWN
make dozens of references to women as "bitches," "crazy,"
"white trash," "ghetto," and "prostitutes," was called a "bitch"
herself by an instructor, and was consistently subjected to
selective taunting. See Smith, 202 F.3d at 242-43 ("A work
environment consumed by remarks that intimidate, ridicule,
and maliciously demean the status of women can create an
environment that is as hostile as an environment that contains
unwanted sexual advances."). When viewed cumulatively
with the evidence of sex-based harassment, the recruits’ use
of racially charged terms like "honky," "cracker," and "fuck-
ing Mexicans" may also lead a jury to reasonably conclude
that a discriminatory atmosphere was pervasive at the Acad-
emy. See Spriggs, 242 F.3d at 184 ("One of the critical inqui-
ries in a hostile environment claim must be the environment.
Evidence of a general work atmosphere therefore—as well as
evidence of specific hostility directed toward the plaintiff—is
an important factor in evaluating the claim." (quoting Hicks
v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987))).
The conduct was also severe and humiliating in as far as it
caused Mosby-Grant significant emotional distress with
Mosby-Grant openly becoming emotional at work and regu-
larly leaving work in tears. The effect and source of the
harassment were also noticeable to Mosby-Grant’s superiors,
including Detective Yonkers and Lieutenant Kline, and other
recruits. See Ocheltree, 335 F.3d at 333 ("The ‘severe or per-
vasive’ element has both subjective and objective compo-
nents." (citing Harris, 510 U.S. at 21-22)). Dr. Tellefsen’s
expert diagnosis may also support a reasonable finding that
the Academy experience had an injurious effect on Mosby-
Grant’s mental health. See Harris, 510 U.S. at 22 ("Title VII
bars conduct that would seriously affect a reasonable person’s
psychological well-being, but the statute is not limited to such
conduct.").
Further, on at least one occasion, during the EVOC course,
instructors had to intervene to prevent the male recruits’
behavior from having an adverse affect on Mosby-Grant’s
MOSBY-GRANT v. HAGERSTOWN 17
work performance. It may also be reasonable for a jury to
infer, based on the testimony of Mosby-Grant, King and
Wood, that the male recruits’ snickering during firearms test-
ing was directed at Mosby-Grant and, but-for that harassment,
she would have succeeded on qualification day. See Harris,
510 U.S. at 23 ("[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the circum-
stances. These may include . . . whether it unreasonably inter-
feres with an employee’s work performance.").
Thus, Mosby-Grant presented adequate evidence for a rea-
sonable jury to find that the work environment was infected
with a severe or pervasive air of sex-based hostility that
affected her conditions of employment.
ii.
However, Mosby-Grant lacks sufficient evidence to pro-
ceed on her race claim. Following the single incident wherein
Mosby-Grant overheard racist comments, the offending
recruit immediately apologized, and explained that he and the
biracial recruit had been joking with one another. See Harris,
510 U.S. at 21-22 (finding that, to be actionable under Title
VII, conduct must be subjectively and objectively offensive).
Although another recruit did openly disparage Mexicans, his
repugnant remarks were made only two times in five months
and, although not dispositive, his remarks were also never
directed at Mosby-Grant. See Faragher, 524 U.S. at 788
("[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." (citation
and internal quotation marks omitted)).
We are keenly aware of the difficulties inherent in parsing
out Title VII claims brought by individuals, e.g., African
American women, who fall under more than one protected
class. We also recognize that a hostile work environment
claim can be bolstered by relying on evidence of a workplace
18 MOSBY-GRANT v. HAGERSTOWN
tainted by both sex and racial discrimination. See Goodman
v. State of Md. Dept. of Social Services, No. 94-2133, 64 F.3d
657, 1995 U.S. App. LEXIS 23946, at *11 (4th Cir. Aug. 23,
1995) ("[E]vidence of racial and sexual hostility can be aggre-
gated in assessing an environment . . . ." (citing Hicks, 833
F.2d at 1416)). Nevertheless, there are now two distinct
counts before us, and the evidence of the pervasiveness or
severity of racial animus at the Academy is too isolated and
too minimal to survive summary judgment.4 Hartsell v.
Duplex Products, 123 F.3d 766, 773 (4th Cir. 1997).
C.
Finally, the conduct was also imputable to the employer,
particularly because, on many occasions, Mosby-Grant
reported her concerns to superiors, including Lieutenant
Kline, to no avail. Employers are generally subject to vicari-
ous liability for Title VII cases; but, when an employee suf-
fers no tangible direct employment action, the defendant-
employer may raise an affirmative defense by showing: "(a)
that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Faragher, 524 U.S. at
807-808.
Here, Mosby-Grant repeatedly went to Lieutenant Kline,
4
Because the issue was not raised by Mosby-Grant, we decline to
address whether she would have been able to sustain a "hybrid" sex and
race claim under Title VII. Compare Jefferies v. Harris County Commu-
nity Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980) (holding that "dis-
crimination against black females can exist even in the absence of
discrimination against black men or white women") with DeGraffenreid
v. General Motors Assembly Division, 413 F. Supp. 142, 143 (E.D. Mo.
1976), aff’d in part, rev’d in part on other grounds, 558 F.2d 480 (8th Cir.
1977) (denying the combined race and sex claims of African American
female plaintiffs).
MOSBY-GRANT v. HAGERSTOWN 19
the Academy Director, to complain of the harassment. Despite
Lieutenant Kline’s and others’ assurances that action would
be taken, there is no indication that anything was done to dis-
courage the most egregious conduct. Given the history of sex-
ual harassment at the Academy, Mosby-Grant’s position as
one of only a very few women present at the Academy in any
capacity in recent years, and Lieutenant Kline’s and other
instructors’ actual knowledge of some of the objectionable
conduct, the City had an obligation to intercede. However, the
record is bereft of evidence demonstrating that any Academy
administrator took affirmative steps to stop the harassment.
For example, although Lieutenant Kline did discuss sexual
harassment at the start of the Academy course, she never sup-
plemented that training, nor took any other steps to demon-
strate that reasonable care was undertaken to deter further
hostility toward Mosby-Grant. In the one instance in which
Academy instructors did respond, Mosby-Grant was merely
segregated from her colleagues. Efforts to help Mosby-Grant
were also seen by the other recruits as evidence that Mosby-
Grant was receiving "special treatment." See Central Whole-
salers, 573 F.3d at 177-78 (finding an employer potentially
liable after the plaintiff made a number of complaints about
harassment that the employer either failed to respond to or
responded to ineffectively).
Under these circumstances, Mosby-Grant has made out a
prima facie case that the Academy unreasonably failed to cor-
rect the offending behavior. Therefore, the City’s entitlement
to the affirmative defense is a triable issue of fact.
III.
Because there is a legally sufficient evidentiary basis for a
reasonable jury to find that Mosby-Grant was the victim of
sex-based employment discrimination, we conclude that the
district court erred in granting the City’s motion for summary
judgment as a matter of law on her Title VII claim. The con-
duct Mosby-Grant was exposed to was unwelcomed; based on
20 MOSBY-GRANT v. HAGERSTOWN
her sex; severe or pervasive enough to alter the conditions of
her employment; and directly imputable to her employer.
Based on the evidence, however, a jury could not reasonably
find that Mosby-Grant was subjected to race-based harass-
ment. Accordingly, we reverse in part the grant of summary
judgment of the district court and remand for further proceed-
ings consistent with this opinion.
REVERSED IN PART AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
A review of the record in this case discloses only a few iso-
lated incidents occurring "because of" Mosby-Grant’s sex, as
regulated by 42 U.S.C. § 2000e-(2)(a)(1). As such, they are
not severe and pervasive, as required to establish liability. See
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Hartsell v.
Duplex Prods., Inc., 123 F.3d 766 (4th Cir. 1997); Hopkins v.
Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996).
Moreover, of these isolated incidents, only three or four
were brought to the attention of Lieutenant Margaret Kline,
the director of the Academy. See Howard v. Winter, 446 F.3d
559, 565 (4th Cir. 2006) (An employer is liable for a
coworker’s sexual harassment only if it knew or should have
known of the harassment and failed to take effective remedial
action). For instance, Lt. Kline was told that on occasion,
Mosby-Grant’s classmates commented about the physical
appearance and anatomy of women passing by or visiting the
academy. She was told that on a particular occasion, class-
mates complained that women who are the victims of domes-
tic violence "cry this or that" and then return to the man who
beat them. And she was told that a male instructor had called
a male recruit "pussy."
The only incident brought to Lt. Kline’s attention which
involved conduct directed at Mosby-Grant because of her sex
occurred at a meeting where classmates claimed that Mosby-
MOSBY-GRANT v. HAGERSTOWN 21
Grant violated the dress code because she wore different pants
(ones that fit) and wore her hair in a ponytail. They also made
fun of her eyelashes. The conduct at this meeting was hardly
severe and occurred on only one occasion.
In sum, the aggregation of incidents that may arguably be
considered as a violation of 42 U.S.C. § 2000e-(2)(a)(1) pres-
ent a work place environment far less severe and pervasive
than those addressed in Hartsell and Hopkins, where we ruled
against the complaining plaintiffs on the ground that the inci-
dents were too isolated and too few to be severe and perva-
sive. In this case, I would likewise rule against Mosby-Grant
for the same reasons. Because I would affirm the judgment of
the district court, I respectfully dissent.