Renee Pryor v. United Air Lines, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1442

RENEE PRYOR,

Plaintiff - Appellant,

v.

UNITED AIR LINES, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:13-cv-01125-LMB-TRJ)

Argued: April 8, 2015 Decided: July 1, 2015

Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Senior Judge Davis joined.

ARGUED: Spencer Freeman Smith, SMITH PATTEN, San Francisco,
California, for Appellant. Jody A. Boquist, LITTLER MENDELSON,
P.C., Chicago, Illinois, for Appellee. ON BRIEF: Dow W. Patten,
SMITH PATTEN, San Francisco, California, for Appellant.
Paul E. Bateman, Angela I. Rochester, LITTLER MENDELSON, P.C.,
Chicago, Illinois, for Appellee.
GREGORY, Circuit Judge:

This case most centrally concerns the question of when an

employer may be held liable for a hostile work environment

created by an anonymous actor. Renee Pryor, an African-American

flight attendant, alleges that her employer, United Airlines,

failed to adequately respond to a racist death threat left in

her company mailbox. The district court concluded that Pryor

was subjected to a racially hostile work environment, but

granted summary judgment to the airline after deciding that it

was not liable for the offensive conduct. For the reasons that

follow, we vacate the order granting summary judgment and remand

for further proceedings.

I.

Pryor joined United Airlines in 1984 and began working out

of Dulles International Airport in the early 1990s. In January

2011, she discovered in her company mailbox a paper note

claiming to be a “Nigger Tag – Federal Nigger Hunting License,”

declaring that the holder was “licensed to hunt & kill NIGGERS

during the open search hereof in the U.S.” J.A. 209. The tag

also purported to give “the holder permission to hunt day or

night, with or without dogs.” Id. A hand-drawn image of a

person hanging from a pole or a tree appeared on one corner of

the document, along with the words “this is for you.” J.A.

2
1947. 1 The mailbox was in a secure space at the airport,

accessible to United employees and others with company

authorization.

Pryor was shaken and afraid. She immediately sought out

her supervisor, Richard Reyes, and showed him the racist death

threat. Reyes told Pryor he was “sorry” but that there was “not

much” United could do because there were no security cameras

covering the area. J.A. 1948. 2 Reyes gave Pryor a flight

attendant report to fill out and told her that he would give the

form – along with the offensive note – to security and the base

manager. Pryor completed the form and gave it, along with the

threat, to Reyes.

At the time, United maintained an official Harassment &

Discrimination (“H&D”) Policy. 3 The policy provided guidance for

supervisors and managers when they received a complaint

1Although Pryor maintains that the note included the image
of a person hanging from a noose, the copy in the record only
bears the ‘mock license’ without the drawing. It is unclear
whether that copy is, in fact, the version that Pryor first
received, or if United lost or altered the original (which Pryor
alleges). Pryor continues to claim that the drawing was
originally included on the document, and we must accept her
version as true at the summary judgment stage, as the district
court did.
2 Reyes, in fact, thought the racist death threat “was a
joke.” J.A. 156.
3In 2010, a new written policy also took effect, known as
the Working Together Guidelines. But the H&D policy was still
active in January 2011, when Pryor received the first note.

3
regarding harassment or discrimination. It instructed such

employees to:

Listen to the allegation and regard it seriously.
Contact the Employee Service Center immediately to
report the complaint. The ESC will be responsible for
initial in-take of the complaint and then forward to
an investigative team for investigation and follow-up.
The team will also direct you if your participation in
the investigation is necessary. If the complaint is
determined to be valid after a thorough and impartial
investigation, the supervisor will administer
appropriate discipline in consultation with the
investigative team.

Supervisors and managers are additionally expected to
monitor their workplaces to ensure compliance with
this harassment and discrimination policy. Any
supervisor or manager, who becomes aware of an
incident or complaint of harassment or discrimination,
whether by witnessing the incident or being told of
it, must immediately report it to the ESC.

J.A. 2169 (emphases added).

Despite that policy, Reyes did not contact the Employee

Service Center (“ESC”). Instead, he called Mary Kay Panos, the

director of Inflight Services at Dulles, to inform her of the

incident. Panos was out of the office (it was a Saturday) and

told Reyes to put an envelope with the racist threat under her

door so she could see it on Monday morning. When Panos found

the envelope, she notified Denise Robinson-Palmer, an

Operational Manager at Dulles, and instructed her to follow up.

Panos, like Reyes, did not contact the ESC, even though she

later acknowledged that it would have been proper protocol.

4
 As both Panos and Robinson-Palmer were aware, the note left

for Pryor was not the first incident of racism reported at

United’s Dulles facility. In the 1990s, Pryor received a

question from an unidentified colleague about rumors circulating

among United employees that black flight attendants based out of

Dulles were moonlighting as prostitutes during layovers in

Kuwait. Both Panos and Robinson-Palmer became aware of these

rumors when they resurfaced in 2009-2010. Panos informally

looked into the claims, but failed to substantiate them.

Panos and Robinson-Palmer were also both aware that just a

few months before Pryor discovered the threat, an apartment

advertisement with a racist message on it had appeared in the

flight attendants’ break room at Dulles. The message on the

advertisement stated that “No niggers need apply.” J.A. 2182.

Pryor never viewed the flyer, but heard about it from co-workers

and a supervisor. Although brought to the attention of Panos

and Robinson-Palmer, neither documented the incident, conducted

any interviews, contacted human resources, or enlisted the help

of corporate security. Instead, Robinson-Palmer called the

number listed on the ad to try to determine who posted it. When

the woman on the other line disclaimed any knowledge of the

racist message on the advertisement, Robinson-Palmer “shredded

[the flyer], because [she] was so offended by it.” J.A. 1340.

The supervisor began to monitor the bulletin board and soon

5
discovered a second identical posting. She again shredded it,

without taking any additional action.

When Robinson-Palmer then became aware of the racist threat

in Pryor’s mailbox, she spoke to the flight attendant about it

and contacted Michael Folan from Corporate Security. Robinson-

Palmer did not contact the ESC. Security conducted no

interviews of co-workers and did not preserve any physical

evidence or “any hard copy documents concerning the

investigation.” J.A. 2102. Security also claimed it was

“unable to ‘brush’ for prints as there were no prints of other

employees to match them with, and there was no telling how long

the item was there, as anyone could have touched it.” J.A.

1484-85. In the end, United “was unable to identify a suspect

or even a time of placement of the document.” J.A. 1484-85.

Corporate security closed its investigation on February 4,

2011. It appears, however, that nobody directly informed Pryor

of that development. Increasingly frustrated, Pryor herself

called the ESC and another employee hotline on February 16,

2011, to ask about the status of the investigation and express

her unhappiness. The ESC referred the matter to Ally Zauner, a

human resources manager in Chicago. Zauner made telephone calls

to Pryor, her supervisors, and Corporate Security to gather

information.

6
 Despite the occurrence of a possible hate crime, and a

crime that involved a threat of violence at a major airport,

United never reported the incident to the police. Instead,

Pryor made a police complaint on February 27, 2011, at the

Metropolitan Washington Airport Authority. 4 In her police

statement, Pryor recounted in part:

I showed [the note] to [Reyes]. He said we have no
cameras so there is not much we can do. I was so
stunned. I was hurt and even embarrassed . . . The
“Base Manager” never came to me!! The assistan[t]
Base [Manager] did say (5 days later) she did hear of
the incident. [Reyes] took the letter[,] put it in a
large envelope[,] and told me it would be sent to
Corporate Security. A lady from some [department]
that handles sexual harassment called me Feb. the
18th, 2011. I returned her call Feb. 19th. She said
United was busy merging with Continental Airlines and
that she handles other types of situations. To say
the least I have followed all the procedures United
said to do but up until me calling HR in Chicago no
one bothered to call me back. . . . I am stressed[,]
hurt[,] and I do not feel safe at work. I dread going
to my mailbox because I do not know if this person is
in wait for me!! I do not feel safe!! . . . I
noticed how [supervisors] look at me different now.
Mr. Barreta (supr.) has been good to me with his hugs.
It took me a long time to get to the [department] in
HR!! Why is this! The stress of this matter has
changed how I feel at work. I keep wondering why and
who. I thought this behavior was not tolerated in any
work environment today . . . It also bothers me that
I was asked after my Moscow trip “what did I do” to
get this in my mailbox. My response is what does a

4
Folan stated in a “case log” that he directed Robinson-
Palmer to have Pryor prepare a police report in January. J.A.
219. Robinson-Palmer, however, apparently failed to do so.
Folan later told police that he informed Pryor in January that
she should file a report. Pryor disputes that assertion.

7
 person have to do to get a note or to be called a
racial slur[].

J.A. 2192-93.

When the police first approached Pryor’s supervisors, they

were greeted with less than enthusiastic cooperation. Panos

told the officer “that they were in the middle of a situation

and this was not the best time to meet.” J.A. 196. As the

officer further noted on the relevant incident sheet:

Ms. Palmer and Ms. Panos stated the issue was being
handled internally through Corporate Security and
Equal Employment Opportunity (EEO) and did not
understand why the police [department] was involved.
I explained that in the Commonwealth of Virginia the
racial note was considered a form of Hate Crime and a
Threat. I also informed that MWAA PD should have been
notified on the date of the incident. I also informed
that Ms. Pryor did not feel that United Airlines was
handling the situation and felt that her job was
unsafe. At that time, all the supervisors filled out
the Statement of Facts form.

J.A. 196.

Pryor spoke to Zauner again after filing the police report.

During that conversation, Zauner received “very limited” details

and believed that Pryor “did not want to really share a lot of

information with me, unfortunately.” J.A. 1512. Pryor did

suggest to Zauner that United should send out an email warning

employees that “this type of behavior would not be tolerated,”

and implement a program to encourage employees to “treat each

other with respect.” J.A. 1960. In the end, Zauner could not

identify suspects, and she concluded that the incident was

8
isolated. Notably, Panos and Robinson-Palmer did not inform

Zauner of the racist flyers which had been posted a few months

earlier, or the prostitution rumors.

On March 25, 2011 – two and a half months after Pryor

discovered the racist death threat – Panos sent a “must-read”

email to Dulles-based employees. J.A. 1612. The email informed

the employees that the company was investigating unspecified

“inappropriate and offensive material,” and it instructed them

to notify a manager if they had any knowledge regarding the

unspecified activity. J.A. 1612. Panos also contacted Pryor to

tell her that she believed the email would “discourage any

future behavior.” J.A. 1194. Shortly thereafter, Zauner

concluded that although the racist threat “did not align with

. . . [the] Working Together Guidelines,” she could not

“substantiate that somebody had violated the Harassment and

Discrimination Policy.” J.A. 2083-84. Zauner wrote a letter to

Pryor informing her of the findings and explaining that the

investigation was being closed. The police department also

suspended its investigation “pending the development of further

leads.” J.A. 2189.

Months later, on October 21, 2011, Pryor received a nearly

identical racist death threat in her United mailbox at Dulles,

also purporting to be a license to hunt and kill African-

Americans. Pryor went immediately to the nearest supervisor,

9
Sandra Sales, who largely ignored her entreaties. Pryor then

showed the note to Reyes. Reyes asked to keep it, but Pryor

said that she wanted to take it to the police. Crying, Pryor

went upstairs to call her aunt and tell her about the threat.

Shortly thereafter, a pilot walked by and Pryor showed him the

note and explained where she found it. The pilot went to “get

someone downstairs” to help, and he brought Reyes up to speak

with Pryor again. J.A. 1141. Reyes told Pryor that he had

already called Panos and told her what happened. Pryor then

took the note to the police station and filed a new report.

Two or three days later, Panos called Pryor at home to

discuss the incident. Pryor asked why there were no cameras in

the facility, and Panos mentioned the cost of installation.

Panos also scheduled a meeting with Pryor and George Bellomusto,

who at the time was United’s Human Resources Manager at Dulles.

During that meeting, Bellomusto gave Pryor a letter to sign

about the confidentiality of the investigation. Pryor refused

to sign it. The HR manager nonetheless promised to do a

thorough investigation.

Pryor also emailed corporate security and filed another

complaint with United’s ESC. She told the ESC that she was

“hurt and afraid,” and asked “if something could be done about

it.” J.A. 1159. Charles Miller from Corporate Security

reviewed Pryor’s email to that department. Miller referred the

10
matter to a colleague for “follow-up investigation.” J.A. 1468.

Miller also called Pryor to let her know that they were “taking

it seriously” and to tell her that she should contact him or

Bellomusto with any questions. Id.

During this time period, the same racist threat was

discovered by four other senior African-American flight

attendants in their mailboxes. Subsequent daily audits of the

mailboxes revealed copies left for five more employees. On

October 31, Bellomusto sent an email to supervisors and HR

personnel, letting them know of the notes that had been found.

One of the other flight attendants, the email stated, was very

concerned because fingerprints were not kept on file.

Bellomusto expressed his hope that the police would be able to

help.

Ten days later, through collaboration with the police,

United installed two temporary security cameras in the mailbox

area. The cameras, however, did not capture any relevant

information, and Bellomusto closed the investigation on or about

November 15 after failing to identify suspects. A month later,

Bellomusto informed Pryor of the measures the company had taken

to prevent future incidents. United also worked with the police

to record the fingerprints of all United employees known to have

touched the notes to narrow the field of potential suspects if

subsequent dusting yielded any evidence.

11
 Pryor relocated to George Bush Intercontinental Airport in

Houston. She has not reported any further race-related

incidents, nor does the record contain evidence of any

additional incidents.

On March 9, 2012, Pryor filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”), alleging that United

failed to adequately investigate the prostitution rumors and

racist notes left in her mailbox, and that the failure

constituted unlawful discrimination. She received a right-to-

sue letter and timely filed the instant action. Pryor’s First

Amended Complaint includes three counts, each premised on the

set of facts described above. 5 Count I alleges that United

“engaged in a systemic pattern and practice of unlawful racial

discrimination” through its failure to investigate Pryor’s

complaints, in violation of 42 U.S.C. § 1981. Counts II-III

allege that United created a hostile work environment based on

the speculation regarding the prostitution ring and the two

notes received, in violation of 42 U.S.C. § 2000e.

5A quasi companion case was also filed by two of Pryor’s
colleagues. See Johnson v. United Airlines, Inc., No. 1:13-CV-
00113, 2013 WL 3990789 (E.D. Va. Aug. 2, 2013), appeal
dismissed, No. 13-2053 (4th Cir. Dec. 12, 2013). The district
court in Johnson granted summary judgment for United after
finding that neither of the plaintiffs had actually “received
the Hunting License . . . or viewed it personally.” Id. at *4.

12
 United moved for summary judgment on all three counts. On

April 16, 2014, the district court granted the company’s motion.

Although the court determined that the racist notes were

sufficiently severe to create a hostile work environment, it

concluded that the conduct could not be imputed to United.

Pryor timely appealed.

II.

We review the district court’s grant of summary judgment de

novo, viewing the facts in the light most favorable to the non-

moving party (Pryor) and drawing all reasonable inferences in

her favor. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 174

(4th Cir. 2009). Summary judgment is appropriate if “there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Summary judgment is inappropriate, however, if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

III.

Pryor alleges that she was subjected to a racially hostile

work environment, contravening the Civil Rights Act of 1866, 42

U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42

13
U.S.C. §§ 2000e to 2000e-17. 6 The elements an employee must

prove are the same under either provision. Spriggs v. Diamond

Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). To survive

summary judgment, Pryor must show that a reasonable jury could

find that the conduct she alleges was (1) unwelcome; (2) based

on her race; (3) sufficiently severe or pervasive to alter the

conditions of her employment and to create an abusive work

environment; and (4) imputable to her employer. Okoli v. City

of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011); see also Boyer-

Liberto v. Fontainebleau Corp., --- F.3d ---, 2015 WL 2116849,

at *9 (4th Cir. May 7, 2015) (en banc).

The first two elements – that the conduct at issue was

unwelcome and based on race – are not in dispute here. The

parties, however, disagree about whether the conduct was

sufficiently severe to create a hostile environment, and whether

6 The Civil Rights Act of 1866 prohibits race discrimination
in the “making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b). Title VII, meanwhile, prohibits employers from
“discriminat[ing] against any individual with respect to his [or
her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Workplace
harassment that sufficiently alters the terms and conditions of
employment is actionable under a “hostile work environment”
theory. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,
331 (4th Cir. 2003).

14
liability can be imputed to United. We consider each question

in turn.

A.

A violation of Title VII occurs when an employee’s

“workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (internal quotation marks and citation

omitted). To make that showing, a worker must demonstrate that

“the environment would reasonably be perceived, and is

perceived, as hostile or abusive,” even if it is not actually

“psychologically injurious.” Id. at 22. We determine the

“objective severity of harassment . . . from the perspective of

a reasonable person in the plaintiff’s position, considering all

the circumstances.” Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81 (1998) (internal quotation marks omitted).

Our inquiry into the severity of unwelcome conduct “is not,

and by its nature cannot be, a mathematically precise test.”

Harris, 510 U.S. at 22. “[S]imple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of

employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (internal quotation marks and citations omitted). But as

15
we have recently confirmed, “an ‘isolated incident[]’ of

harassment can ‘amount to discriminatory changes in the terms

and conditions of employment,’ if that incident is ‘extremely

serious.’” Boyer-Liberto, 2015 WL 2116849, at *10 (alterations

in original) (quoting Faragher, 524 U.S. at 788).

Here, Pryor alleged in her complaint that both the

prostitution rumors and mailbox threats engendered a hostile

work environment. The district court concluded that although

the prostitution rumors were not severe or pervasive enough to

create a hostile environment, the racist death threats were

sufficient by themselves. On appeal, Pryor does not contest the

court’s findings regarding the prostitution rumors. United,

meanwhile, argues that a hostile environment cannot arise from

two notes that it characterizes as isolated, infrequent, and

anonymous.

We agree with the district court’s determination that

although the notes may not have been pervasive, “a reasonable

jury could find that [they] were sufficiently severe to alter

the conditions of plaintiff’s employment” and create a hostile

work environment. Pryor v. United Airlines, Inc., 14 F. Supp.

3d 711, 721 (E.D. Va. 2014). Four considerations support that

conclusion. First, the use of “the word ‘nigger’ is pure

anathema to African-Americans,” Spriggs, 242 F.3d at 185, as it

is to all of us. As the district court elaborated, the “[u]se

16
of that word is the kind of insult that can create an abusive

working environment in an instant, see Rodgers v. Western-

Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993), and is

degrading and humiliating in the extreme, see Walker v.

Thompson, 214 F.3d 615, 626 (5th Cir. 2000).” Pryor, 14 F.

Supp. 3d at 720.

Second, as the district court also persuasively reasoned,

the offensive language was made still more severe “by virtue of

the presence of a clear element of violence” manifested by the

threats inherent in a “hunting license” and the image of a

lynching. Id. at 721. Indeed, the content of the notes is

simply chilling, purporting to give permission for the hunting

of a race of human beings “with or without dogs.” The “license”

thus “clearly implicates the express purpose of killing, the

additional implication that the recipient is a sub-human object

to be hunted, and the allusion to lynching.” Id.

Third, the location where Pryor discovered the threats

added to their gravity. They were left in a secure mailroom at

a major airport – a space with access ostensibly limited to co-

workers and others with company authorization. In an age of

unparalleled attention paid to the security of air travel, a

death threat left for an airline employee in a secure,

restricted space should have been viewed with heightened

concern. Further, Pryor’s work as a flight attendant left her

17
in a particularly vulnerable position, flying internationally

and coming into contact with hundreds of strangers daily. And

if there was any doubt, the record includes ample evidence that

Pryor was subjectively terrified after receiving the threats.

Fourth and finally, the context of the notes matters. In

addition to the two threats that Pryor directly received, the

record includes evidence of (1) the same threats left for

several other flight attendants, (2) the racist message written

on the two apartment advertisements, of which Pryor was aware;

and (3) the racially-tinged prostitution rumors. While not

severe enough on their own to subject Pryor to a racially

hostile work environment, such facts contribute to our

evaluation of the severity of the two threats Pryor received.

See Spriggs, 242 F.3d at 184 (observing that a hostile work

environment analysis looks not only to conduct directed

specifically at an individual but also to “the ‘environment’ of

workplace hostility”).

In sum, the conduct at issue in this case is far removed

from the mere off-hand comments or teasing that courts have

found of insufficient severity to engender a hostile

environment. See Faragher, 524 U.S. at 788. As the district

court properly concluded, “a reasonable jury could properly

construe the notes as racially-tinged death threats so severe

18
that it does not matter that they were not pervasive.” Pryor,

14 F. Supp. 3d at 721.

B.

The question of United’s liability for the anonymous

harassing conduct is a closer one. On one hand, employers are

not strictly liable for acts of harassment that occur in the

workplace. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

72 (1986); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765

(1998). Indeed, instances of anonymous harassment pose unique

challenges to companies that must work both to identify the

perpetrator and to protect victims from a faceless, though

ominous, threat. But on the other hand, an employer maintains a

responsibility to reasonably carry out those dual duties of

investigation and protection. The anonymous nature of severe

threats or acts of harassment may, in fact, heighten what is

required of an employer, particularly in circumstances where the

harassment occurs inside a secure space accessible to only

company-authorized individuals.

As we have held, an employer may be liable for hostile work

environments created by co-workers and third parties “if it knew

or should have known about the harassment and failed to take

effective action to stop it . . . [by] respond[ing] with

remedial action reasonably calculated to end the harassment.”

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

19
(internal quotation marks omitted) (emphasis added); see also

Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014);

EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011). An

employer is not subject to a lesser standard simply because an

anonymous actor is responsible for the offensive conduct. See

Xerxes, 639 F.3d at 672-73 (holding an employer to the same

standard for responding to harassment carried out by known and

unknown individuals); Cerros v. Steel Techs., Inc., 398 F.3d

944, 951 (7th Cir. 2005) (noting that a plaintiff’s “inability

to verify the authorship of . . . racist graffiti poses no

obstacle to his establishing that this graffiti produced or

contributed to a hostile work environment”). Instead, the fact

of anonymity is a circumstance that helps inform our

determination of whether a company’s response was reasonably

calculated to end the harassment at issue. See Tademy v. Union

Pac. Corp., 614 F.3d 1132, 1149 (10th Cir. 2008) (“Although

there may be difficulties with investigating anonymous acts of

harassment, those difficulties at most present factual questions

about the reasonableness of [the employer’s] response . . . .”).

The parties here do not dispute that United knew about the

two racist death threats Pryor received (in addition to the

prostitution rumors and the bulletin board apartment

advertisements). Further, Pryor agrees that United’s response

to the second threatening note she received was adequate. The

20
only question is thus whether the airline’s actions in response

to the first threat were prompt and reasonably calculated to end

the harassment. See Freeman, 750 F.3d at 423.

Of course, the reasonableness of a company’s actions

depends, in part, on the seriousness of the underlying conduct.

See Xerxes, 639 F.3d at 675-76 (examining whether a company’s

response was proportional to the seriousness of the incidents of

harassment); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)

(observing that “remedies should be assessed proportionately to

the seriousness of the offense” (internal quotation marks

omitted)); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307,

309 (5th Cir. 1987) (looking to the severity of alleged sexual

harassment to determine the adequacy of a company’s response).

It is only in light of the nature of the harassment that we can

see whether a company’s response was proportional by examining

the promptness of any investigation, the specific remedial

measures taken, and the effectiveness of those measures. See

Xerxes Corp., 639 F.3d at 669-70.

As previously described, the conduct at issue in this case

is some of the most serious imaginable in the workplace – an

unmistakable threat of deadly violence against an individual

based on her race, occurring in the particularly sensitive space

of an airport. By its own terms, the note Pryor received was

not only a threat to her but to all African-American employees

21
who shared the same space. It is also reasonable to infer on

this record that the perpetrator was someone United had

entrusted with access to the mailroom.

Given the severity of the threat, a reasonable jury could

find that United’s response was neither prompt nor reasonably

calculated to end the harassment. United supervisors did not

call police, even though police later suggested that they should

have. They did not escalate the matter to the ESC, in apparent

violation of the company’s H&D policy. 7 They did not inform

corporate security of the racist message on the fliers

previously discovered in the break room. They did not promptly

install cameras or other monitoring devices. They did not

provide Pryor with additional security or protective measures.

They did not obtain fingerprints, do other forensics analysis,

or interview co-workers. And they remarkably did not inform

Pryor when their investigation closed, an event that occurred

without management having sent any correspondence to employees

to solicit information and/or put them on notice that the

company was being vigilant in monitoring the workplace. In

short, a reasonable jury could find that United had done very

7
Clearly, a company’s failure to follow an internal policy
does not make its response unreasonable as a matter of law. But
insofar as a company’s policies reflect its reasoned belief as
to the best way to address and end harassing conduct, compliance
with those policies is a factor we may consider.

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little to deter future acts of harassment up until the time that

the airline initially closed its investigation.

Tellingly, Pryor herself had to both call the ESC to

resurrect the investigation and report the incident to police.

Were it not for Pryor’s actions, it is reasonable to infer that

no email would have ever gone out to United employees – an email

that Panos sent more than a month after Pryor contacted the ESC.

And after the ESC became involved, Panos and Robinson-Palmer

failed to inform the investigating HR manager of prior instances

and allegations of racism at United’s Dulles facility. A

reasonable jury could find that such an omission contributed to

the manager’s conclusion that the first note Pryor received

represented an isolated occurrence.

As for United’s interaction with the police, when an

officer first interviewed Panos and Robinson-Palmer, she was met

with less than generous cooperation. In fact, before the

officer could even explain her presence, the managers told her

that it was “not the best time to meet” and questioned whether

she should have made an appointment. Curiously, Panos and

Robinson-Palmer further indicated that they “did not understand

why the police [department] was involved.” J.A. 196. Such

initial antipathy to police involvement stands in informative

contrast with the active cooperation advocated by Human

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Resources Manager George Bellomusto in the aftermath of the

discovery of the second note.

It is also significant, albeit not dispositive, that

United’s response to the first threat was ineffectual in

stopping the harassing conduct, as the notes reappeared months

later in greater number. The mere fact that a company’s

strategy was not successful does not necessarily mean the

strategy was not a reasonably calculated one. Xerxes, 639 F.3d

at 669-70. Yet the effectiveness of an employer’s actions

remains a factor in evaluating the reasonableness of the

response. See Cerros, 398 F.3d at 954 (observing that “the

efficacy of an employer’s remedial action is material to our

determination whether the action was reasonably likely to

prevent the harassment from recurring” (internal quotation marks

omitted)). On this record, a reasonable jury could find a

causal relationship between United’s lukewarm initial response

to the threat Pryor received and the later reappearance of the

notes.

In granting summary judgment for United, the district court

reasoned that there were no grounds to think that the

perpetrator would have been found even if the airline had taken

additional steps. Pryor, 14 F. Supp. 3d at 723 (“[T]here is

absolutely no basis in the record to conclude that plaintiff’s

preferred route would have led defendant to the culprit.”). But

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that logic miscalibrates the test for employer liability and

fails to view the evidence in the light most favorable to Pryor.

A plaintiff in a hostile work environment case does not bear the

burden of making the speculative showing that taking different

measures would have necessarily stopped the harassing conduct at

issue. Instead, the focus of our inquiry rests on whether the

means that a company chose were “reasonably calculated” to end

the harassment. That is, even if a diligent response may not

have been successful, a company is not thereby excused for its

lack of diligence.

Even using the district court’s logic, a reasonable jury

could find that a more immediate and robust response to the

first threatening note would have increased the chances of

identifying suspect(s) while deterring the later proliferation

of notes. Any number of actions could have been effective,

including reporting the incident immediately to the police,

conducting interviews with co-workers and others with access to

the mailroom, and promptly sending correspondence about the

incident to Dulles-based employees.

We need not, and indeed could not, prescribe exactly what

United’s response to the first note should have been. There

were, no doubt, multiple ways for the company to reasonably

respond. It also bears emphasizing that an employer’s response

need not be perfect, or even embody best practices, to be

25
considered reasonably calculated to end harassing conduct.

Mikels v. City of Durham, N.C., 183 F.3d 323, 330 (4th Cir.

1999) (holding that an employer’s “particular remedial

responses” need not be the “most certainly effective that could

be devised”). We can, however, confidently say on this record

that a reasonable jury could conclude that the response United

actually chose was neither prompt nor reasonably calculated.

Indeed, a reasonable jury could find that United’s response was

instead reluctant and reactive, intended to minimize any

disruption to day-to-day operations instead of identifying a

perpetrator and deterring future harassment.

We therefore vacate the district court’s award of summary

judgment and remand for further proceedings consistent with this

opinion.

VACATED AND REMANDED

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