PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
v. No. 08-1181
CENTRAL WHOLESALERS,
INCORPORATED,
Defendant-Appellee.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellee,
v. No. 08-2018
CENTRAL WHOLESALERS,
INCORPORATED,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:06-cv-01673-PJM)
Argued: March 27, 2009
Decided: July 21, 2009
2 EEOC v. CENTRAL WHOLESALERS, INC.
Before WILLIAMS,1 Chief Judge, and SHEDD and AGEE,
Circuit Judges.
Reversed in part, affirmed in part, and remanded by published
opinion. Judge Shedd wrote the opinion, in which Judge Agee
joined.
COUNSEL
ARGUED: Daniel Travis Vail, U.S. EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION, Washington, D.C.,
for Equal Employment Opportunity Commission. Fred Saul
Sommer, SHULMAN, ROGERS, GANDAL, PORDY &
ECKER, PA, Rockville, Maryland, for Central Wholesalers,
Incorporated. ON BRIEF: Ronald S. Cooper, General Coun-
sel, Vincent J. Blackwood, Acting Associate General Coun-
sel, Carolyn L. Wheeler, Acting Associate General Counsel,
Lorraine C. Davis, Assistant General Counsel, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Equal Employment Opportunity Commis-
sion. Meredith S. Campbell, SHULMAN, ROGERS,
GANDAL, PORDY & ECKER, PA, Rockville, Maryland, for
Central Wholesalers, Incorporated.
1
Chief Judge Williams heard oral argument in this case but did not par-
ticipate in the decision. The decision is filed by a quorum of the panel pur-
suant to 28 U.S.C. § 46(d).
EEOC v. CENTRAL WHOLESALERS, INC. 3
OPINION
SHEDD, Circuit Judge:
This appeal arises from a civil rights action brought by the
Equal Employment Opportunity Commission on behalf of La
Tonya Medley, an African-American female. The EEOC
alleges that Medley’s former employer, Central Wholesalers,
Inc. ("Central"), subjected her to a hostile work environment
based on her gender and race and constructively discharged
her. The district court granted summary judgment for Central
but denied Central’s motion for attorneys’ fees. Both parties
appealed. For the foregoing reasons, we reverse the district
court’s grant of summary judgment, affirm its order on attor-
neys’ fees, and remand for further proceedings.
I
When reviewing a district court’s grant of summary judg-
ment, we construe the facts in the light most favorable to the
nonmoving party, which in this case is the EEOC. See Laber
v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc).
Viewed in this light, the facts are as follows.
A.
Central is a maintenance supply company located in Laurel,
Maryland. Central hired Medley in 2002, and she started
working in the company’s Inside Sales department in Septem-
ber 2004, where she worked until her employment ended in
November 2004. Medley’s supervisor in Inside Sales was
Lynette Wright, and Wright reported directly to Central’s
President, Drew Denicoff. Including Wright, there were a
total of eight employees in Inside Sales, and Medley was the
only African-American female. She was also the only female
other than Wright.
During the relevant time period, Central had a policy
against discrimination, harassment, and retaliation. Under the
4 EEOC v. CENTRAL WHOLESALERS, INC.
policy’s complaint procedures, Central encouraged employees
who believed they were being discriminated against or
harassed to notify the offender directly or contact a supervisor
or other personnel, including Central’s President. If a supervi-
sor received a complaint, the policy required the supervisor to
report it immediately to Central’s Equal Employment Oppor-
tunity Officer or Central’s President. Central’s policy also
provided that all reports of discrimination or harassment
would be promptly investigated and that appropriate action
would be taken.
B.
Medley’s allegations of gender- and race-based discrimina-
tion and harassment cover the two-month period she worked
in Inside Sales and are based primarily on the language and
conduct of four co-workers: three employees in Inside Sales
who worked right next to or one cubicle down from Medley
(Tony Monaghan, his son Mike Monaghan, and Doug Green),
and one of Central’s locksmiths who worked in Central’s lock
shop (Tom DaBay).2 As discussed in more detail below, the
facts, viewed in the light most favorable to the EEOC, show
that Medley’s co-workers uttered a steady stream of racial and
gender epithets and engaged in inappropriate racial and
gender-based conduct.
1.
Consistent with Central’s anti-harassment policy, Medley
initially approached her co-workers directly and notified them
that she found their conduct and language objectionable. The
language and conduct Medley heard and witnessed while she
worked in Inside Sales included the following. Tony referred
to women as b***hes on a daily basis, and used the word
2
Because Mike and Tony have the same last name, we will refer to them
by their first names. We note that none of the four co-workers identified
above held supervisory positions with respect to Medley.
EEOC v. CENTRAL WHOLESALERS, INC. 5
n****r "pretty much every day," J.A. 78. Green also referred
to women as b***hes and used the word n****r. Likewise,
Mike referred to women as b***hes on a daily basis, and used
the word n****r. Mike also used a pornographic screensaver
on his computer which depicted partially naked women.
These three individuals ignored Medley’s initial complaints
about their language and conduct. For example, Mike did not
remove his pornographic screensaver in response to Medley’s
complaints and, in fact, it remained on his computer for some
period of time. Her co-workers also increased their use of pro-
fanity, adding racial jokes and ethnic slurs, after she com-
plained to them about it.
2.
Medley also complained to Wright, her supervisor, about
her co-workers’ conduct and language. For instance, after
Medley overheard Mike watching pornography on his com-
puter during work, she complained to Wright about it, telling
Wright that she could literally hear the sounds of people hav-
ing sex coming from Mike’s cubicle, which was right next to
hers. She also complained to Wright about Mike’s use of the
pornographic screensaver, and about her co-workers’ use of
the word n****r and their profanity.
At first, Wright did nothing in response to Medley’s com-
plaints. When Wright did eventually speak with Medley’s co-
workers, however, her response was not effective. Medley’s
co-workers’ use of profanity just got worse, and Mike contin-
ued to watch pornography at his desk in Medley’s presence.
Moreover, Mike’s pornographic screensaver did not disappear
until approximately a week and half after Medley first com-
plained to Wright about it.
Later, on September 24, 2004, someone other than Medley
complained to Wright about Mike’s pornographic screen-
saver. In response to this complaint, Wright had Mike’s scr-
6 EEOC v. CENTRAL WHOLESALERS, INC.
eensaver removed. Wright also spoke with Mike that day
about his viewing of pornography at work. Even though Mike
denied the allegation, Wright had his Internet access removed.
Central also reviewed Mike’s Internet usage and it reached
the conclusion that Mike had not visited any pornographic
Internet sites.
However, these actions did not completely remedy the situ-
ation. Mike got his Internet access back, and he eventually
started watching pornography at his desk again, either over
the Internet or otherwise. Also, Mike was upset that Central
had temporarily removed his Internet access and blamed Med-
ley. He cursed at her and called her a mother f**ker. Tony
was upset that Central removed his son Mike’s screensaver,
so he cursed loudly in Medley’s presence.
After Medley told Denicoff about Tony’s cussing, Denicoff
met with Tony and addressed his profanity and the inappro-
priateness of Mike’s screensaver. Tony promised to do his
best not to curse anymore and stated that he had no problem
with Mike’s screensaver being removed.
3.
On September 24, Wright approached Medley and sug-
gested that she interview for a position in Central’s Accounts
Receivable department. Medley interpreted this gesture as an
attempt to force her out of Inside Sales because of her com-
plaints. Accordingly, Medley sent an e-mail later that day to
Wright and to Central’s Human Resources representative,
Lisa Beall, stating that it was unfair to ask her to move to
another department because of her co-workers’ inappropriate
behavior. In her e-mail, Medley noted the pornographic scr-
eensaver which had been on Mike’s computer and other
offensive material around the office. Beall forwarded this e-
mail to Denicoff.
Central took steps in response to Medley’s September 24 e-
mail. Denicoff and Beall met with Medley that day to discuss
EEOC v. CENTRAL WHOLESALERS, INC. 7
her allegations. During this meeting, Medley told Denicoff
about Mike watching pornography at his desk and about the
pornographic screensaver. Medley also told Denicoff that
Mike kept a number of Playboy items in his cubicle, including
a Playboy calendar, Playboy magazines, and a Playboy poster.
Denicoff told Medley that Central considered explicit screen-
savers and the viewing of pornography to be unacceptable.
Medley also complained to Denicoff during this meeting
about her co-workers’ use of the word n****r.
In addition to meeting with Medley, Denicoff held a meet-
ing with Wright to discuss Medley’s complaints because
Wright was a new manager. During this meeting, Denicoff
told Wright that it was not acceptable for employees to have
screensavers depicting women in bikinis and that she should
not tolerate those kinds of things. Denicoff held a meeting
with Mike as well. At this meeting, Denicoff told Mike that
viewing pornography at work was outrageous and would not
be tolerated. Mike denied ever looking at pornography, and
Denicoff believed him. Denicoff also walked around the
Inside Sales department to determine whether any of the por-
nographic or offensive materials described by Medley were
present, but he did not find any such materials.
4.
Central’s response to Medley’s September 24 e-mail did
not prove to be effective. About a week later, on October 5,
Medley sent an e-mail to Denicoff complaining that the Play-
boy calendar was still on Mike’s desk. Medley also com-
plained that the profanity in the department was out of
control.
As it did in response to Medley’s earlier e-mail, Central
took steps to address the complaints presented in her October
5 e-mail. Regarding the calendar, Denicoff walked through
Inside Sales in an attempt to locate it, but he did not find the
calendar or any depictions of partially dressed women. Fur-
8 EEOC v. CENTRAL WHOLESALERS, INC.
thermore, he did not hear any profanity during this walk-
through.
As part of his investigation, Denicoff met with Wright on
October 6. During this meeting, Wright acknowledged that
Mike might still have the Playboy calendar on his desk.
Denicoff responded by telling Wright that such a calendar
was not acceptable.
Later that day, Denicoff and David Baxley, another man-
ager at Central, met with Medley. Medley told them that Mike
still had the calendar on his desk, that nothing had been done
in response to her original complaint, and that there was still
a lot of profanity being used in the department. Denicoff told
Medley that Central does not allow such calendars and has
them removed when it becomes aware of them. Denicoff also
told Medley that Central prefers to have no profanity in the
work place and emphasized that racial or sexual slurs would
never be tolerated.
After the meeting with Medley, Baxley walked through
Inside Sales and found the Playboy calendar on Mike’s desk
along with the other Playboy items, including magazines and
a poster. Denicoff and Baxley then met with Mike and
directed him to remove the calendar. They also warned him
about having items like that at work, and they asked him
about the profanity in the department. Mike agreed to remove
the calendar and to work on his cussing.
In addition, Denicoff held a group meeting with employees
in Inside Sales on October 7 to remind them about Central’s
policy regarding profanity. Denicoff stated that he preferred
no profanity in the work place and, while he understood some
might occasionally come out, racial or sexual slurs would
never be tolerated.3
3
Neither Medley nor Tony attended this meeting because they were both
out sick. However, Wright discussed the meeting with Tony when he
returned to work.
EEOC v. CENTRAL WHOLESALERS, INC. 9
5.
Again, Central’s response did not entirely resolve the situa-
tion. Sometime around October 31, Mike placed a screwdriver
in a Halloween decoration, making it appear as if the decora-
tion had a penis. Wright removed the screwdriver, but Mike
placed it right back in the same location. Medley then
removed the screwdriver herself. Wright would later have a
meeting with Mike in which she screamed at him for placing
the screwdriver back in the decoration. Sometime in late
October or early November Mike stopped showing up for
work, and Central treated this as a resignation.
6.
Finally, on November 10, Medley went to DaBay’s office
at Wright’s direction to inquire about a lock for a customer.
DaBay indicated that he did not know anything about the
lock, and when Medley asked him if he was sure, DaBay
stood up and yelled at her. DaBay asked: "Are you f**king
stupid?" "Are you a dumb f**k?" J.A. 412. He then called her
a stupid motherf**ker, a black stupid b***h, and a black stu-
pid n****r, among other things. He said: "B***h, if I tell you
something you better listen"; "F**k you if you don’t believe
me when I tell you something"; and "I should kick your
mother f**king ass." J.A. 412. DaBay then turned to another
employee who was present and stated: "You better school that
b***h and let her know she better stay out my face before
something happens to her." J.A. 413.
Medley was upset by her encounter with DaBay and com-
plained to Wright. Wright then went into DaBay’s office to
explain why Medley inquired about the lock, and DaBay
responded by yelling at Wright. He referred to Medley as a
dumb b***h in front of Wright and then told Wright "f**k
this," before he walked away. J.A. 413. A few minutes later,
DaBay went into Wright’s office and asked her to grab her
coat and join him behind Central’s warehouse in the smoking
10 EEOC v. CENTRAL WHOLESALERS, INC.
area. DaBay used this meeting with Wright to "vent" about
Medley and apparently to relate what he had done to her. J.A.
260.
While Wright was outside with DaBay, Medley was in
tears in JoAnn Starner’s office. Starner was a manager in
Central’s Customer Service department and was Medley’s
former supervisor. Medley complained to Starner about the
incident with DaBay, including DaBay calling her a black
n****r and a black stupid n****r. Medley also reported to
Starner that both Tony and DaBay kept blue-colored dolls
with mop-heads in their offices and that the dolls were hang-
ing by nooses tied around their necks. Because Starner was a
supervisor at Central, the company’s policy required her to
report Medley’s statement about the blue-colored mop-head
dolls immediately to Central’s Equal Employment Opportu-
nity Officer or Central’s President. However, there is no evi-
dence that Starner informed anyone about Medley’s
statement; nor is there any evidence that Central took any
action with respect to the mop-head doll in Tony’s office,
although, as discussed below, Central took some action with
respect to the doll in DaBay’s office.
When Wright returned to the office after speaking with
DaBay outside, she walked into Starner’s office laughing,
apparently not seeing Medley sitting in the corner, and said
"guess what Tom [DaBay] did to La Tonya [Medley]." J.A.
413. Medley stood up and told her it was not funny and that
she had just been threatened. Medley then informed Wright
that she was leaving for the day because she did not feel safe
in that environment.
When Medley got home later that day, she sent an e-mail
to Wright and Denicoff complaining about DaBay and stating
that she was subjected to a violent and hostile work environ-
ment. No one at Central responded to her e-mail. Two days
later, an attorney representing Medley sent a letter to Denicoff
stating that Medley would not be returning to work. The letter
EEOC v. CENTRAL WHOLESALERS, INC. 11
stated that Medley was subjected to a hostile work environ-
ment and cited, among other things, the November 10 inci-
dent with DaBay, Mike’s Playboy items, the use of profanity,
and Mike and DaBay’s public display of the blue-colored
mop-head dolls which were hanging by nooses tied around
the dolls’ necks. Later, Medley stated that the incidents at
Central caused her emotional distress.
In response to the November 10 incident, Central con-
ducted an investigation. According to Central, none of the
persons it interviewed, including one of DaBay’s assistants
who is African-American, recalled DaBay using racial or sex-
ual slurs. Denicoff and Baxley met with DaBay and asked
him to do his best not to yell or curse. Denicoff also told
DaBay to remove the blue-colored mop-head doll from his
office. DaBay was also given a verbal reprimand, and Central
sent him to anger management-type training. Since Medley
never returned to work, Denicoff stated that he was not sure
any further action was necessary.
C.
After Medley filed a charge of discrimination with the
EEOC, the EEOC initiated this action by filing a complaint in
the district court under Title VII. The EEOC alleged that Cen-
tral violated Title VII by subjecting Medley to a hostile work
environment based on her gender and race and constructively
discharging her.
Central moved for summary judgment on all of the EEOC’s
claims, and the district court granted its motion. With respect
to the EEOC’s gender-based claim, the district court deter-
mined that the language and conduct at issue were not gender
specific and therefore failed to raise a claim under Title VII.
The district court then determined that even if the language
and conduct were gender-specific, the environment was not
sufficiently severe or pervasive to create a sexually hostile
working environment. Turning to the EEOC’s race-based
12 EEOC v. CENTRAL WHOLESALERS, INC.
claim, the district court determined that Medley failed to give
Central a reasonable opportunity to investigate and correct the
situation because she never returned to work after the Novem-
ber 10 incident, and in any event the company conducted a
reasonable investigation under the circumstances.
Following the district court’s entry of summary judgment,
Central filed a motion for attorneys’ fees and a bill of costs.
The district court denied Central’s motion for attorneys’ fees
but awarded it costs associated with certain depositions. The
EEOC now appeals from the district court’s grant of summary
judgment, and Central appeals from the court’s denial of its
motion for attorneys’ fees.
II
We turn first to the district court’s grant of summary judg-
ment to Central. We review this judgment de novo, "viewing
the facts in the light most favorable to, and drawing all rea-
sonable inferences in favor of, the nonmoving party." Garo-
folo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198 (4th
Cir. 2005). 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." Fed. R. Civ. P. 56(c).
Title VII makes it unlawful for an employer "to discrimi-
nate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s race [or] . . . sex." 42 U.S.C. § 2000e-
2(a)(1). "Since an employee’s work environment is a term or
condition of employment, Title VII creates a hostile working
environment cause of action." EEOC v. R&R Ventures, 244
F.3d 334, 338 (4th Cir. 2001).
For us to reverse the district court’s grant of summary judg-
ment to Central, the EEOC must establish that the evidence
EEOC v. CENTRAL WHOLESALERS, INC. 13
— viewed in its favor — would allow a reasonable jury to
conclude that the harassment was (1) unwelcome, (2) based
on Medley’s gender or race, (3) sufficiently severe or perva-
sive to alter the conditions of her employment and create an
abusive atmosphere, and (4) imputable to Central. See EEOC
v. Sunbelt Rentals, Inc., 521 F.3d 306, 313-14 (4th Cir. 2008).
We address each of these four elements in turn.
A.
First, the EEOC must establish that a reasonable jury could
conclude that the gender- or race-based harassment was "un-
welcome." As discussed above, the evidence indicates that
Medley complained about both types of harassment to her co-
workers, to supervisors, and to Central’s President, and she
told them that she found both types objectionable. Based on
this evidence, we find that a reasonable jury could find that
both forms of harassment were unwelcome. See id. at 314
(concluding that a jury could find the harassment "unwel-
come" because the victim "indicated to both management and
his coworkers that he found the . . . demeaning conduct to be
offensive").
B.
Second, the EEOC must establish that a reasonable jury
could find that the harassment was based on Medley’s gender
or race. The evidence shows that one or more of Medley’s co-
workers used the word b***h on a daily basis when referring
to women, had Playboy items around the office, watched por-
nography right next to Medley such that she could hear the
sounds of people having sex, and used a pornographic screen-
saver depicting partially naked women. Moreover, DaBay cal-
led Medley a b***h a number of times during the November
10 incident. In light of this evidence, a reasonable jury could
conclude that the harassment was based on Medley’s gender.
See, e.g., Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d
225, 229 (1st Cir. 2007) (stating that a "raft of case law" "es-
14 EEOC v. CENTRAL WHOLESALERS, INC.
tablishes that the use of sexually degrading, gender-specific
epithets, such as . . . ‘bitch,’ has been consistently held to con-
stitute harassment based upon sex").
The evidence also shows that a number of Medley’s co-
workers used the word n****r in her presence on a regular
basis, and at least one co-worker used the word "pretty much
every day." Moreover, DaBay called Medley a black stupid
n****r and other racially derogatory terms during the Novem-
ber 10 incident. In addition, both Tony and DaBay kept blue-
colored mop-head dolls in their offices and had the dolls
hanging from nooses which were tied around the dolls’ necks.
Given this evidence, a reasonable jury could conclude that the
harassment was also based on Medley’s race. See, e.g., White
v. BFI Waste Services, LLC, 375 F.3d 288, 298 (4th Cir.
2004) (stating that "the word ‘n[****]r’ is pure anathema to
African-Americans [and] . . . an unambiguously racial epi-
thet" (quotation marks omitted)).
C.
Third, the EEOC must show that a reasonable jury could
find that the gender- or race-based harassment was so severe
or pervasive as to alter the conditions of Medley’s employ-
ment and create an abusive or hostile atmosphere. This ele-
ment of a hostile work environment claim has both subjective
and objective components. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21-23 (1993). Therefore, the EEOC must show
that Medley did perceive, and a reasonable person would per-
ceive, the environment to be abusive or hostile. Id.
With respect to the subjective component, we conclude that
a reasonable jury could find that Medley perceived both types
of harassment to be sufficiently abusive or hostile. As noted
above, she complained about both types of harassment and
stated that she found such harassment objectionable. She also
stated that the harassment caused her emotional distress.
Therefore, the EEOC has created a triable issue on this point.
EEOC v. CENTRAL WHOLESALERS, INC. 15
See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86
(4th Cir. 2001) (finding that a victim’s complaints to supervi-
sors about harassment shows he or she believed the environ-
ment was hostile or abusive).
Next, we consider whether the gender- or race-based
harassment was objectively severe or pervasive. This objec-
tive inquiry "is not, and by its nature cannot be, a mathemati-
cally precise test." Harris, 510 U.S. at 22. "Rather, when
determining whether the harassing conduct was objectively
severe or pervasive, we must look at all the circumstances,
including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance." Sunbelt,
521 F.3d at 315 (quotation marks omitted). "[N]o single factor
is" dispositive, Harris, 510 U.S. at 23, as "[t]he real social
impact of workplace behavior often depends on a constella-
tion of surrounding circumstances, expectations, and relation-
ships which are not fully captured by a simple recitation of
the words used or the physical acts performed," Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998).
Because we have "recognized that plaintiffs must clear a
high bar in order to satisfy the severe or pervasive test," Sun-
belt, 521 F.3d at 315, the EEOC must show that the environ-
ment was pervaded with discriminatory conduct "aimed to
humiliate, ridicule, or intimidate," thereby creating an abusive
atmosphere, Jennings v. U.N.C., 482 F.3d 686, 695 (4th Cir.
2007) (en banc). We conclude that a reasonable jury could
find that the gender-based harassment was objectively severe
or pervasive. The evidence shows that Mike, Tony, and Green
all regularly referred to women as b***hes. Moreover, DaBay
called Medley a b***h a number of times during the Novem-
ber 10 incident. In addition, Mike — whose cubicle was right
next to Medley’s — had a Playboy calendar on his desk, kept
Playboy magazines in his cubicle, hung a Playboy poster on
his wall, watched pornography on his computer in Medley’s
16 EEOC v. CENTRAL WHOLESALERS, INC.
presence, used a pornographic screensaver depicting partially
naked women, and placed the screwdriver in the Halloween
decoration in a sexual manner more than once. This evidence
is certainly sufficient to create a triable issue on whether the
gender-based harassment was objectively severe or pervasive.
See, e.g., Harris v. L & L Wings, Inc., 132 F.3d 978, 981-82
(4th Cir. 1997) (finding that pornography, including "posters
of scantily clad women," "contributed to the sexually hostile
environment"); see also Winsor v. Hinckley Dodge, Inc., 79
F.3d 996, 1000 (10th Cir. 1996) ("It is beyond dispute that
evidence that a woman was subjected to a steady stream of
vulgar and offensive epithets because of her gender would be
sufficient to establish a claim under Title VII . . . ." (quotation
marks omitted)).
We also conclude that a reasonable jury could find that the
race-based harassment was objectively severe or pervasive.
Three of Medley’s co-workers in Inside Sales used the word
n****r, and at least one of them used it "pretty much every-
day." Moreover, during the November 10 incident, DaBay
called Medley a black stupid n****r, a black n****r, and a
black stupid b***h, among other derogatory terms. In addi-
tion, two of her co-worker’s kept blue-colored mop-head dolls
in their offices which they had hanging by nooses tied around
the dolls’ necks. As in past cases, "[w]e cannot ignore . . . the
habitual use of epithets here or view the conduct without an
eye for its cumulative effect." Sunbelt, 521 F.3d at 318.
Therefore, we conclude that the EEOC created a triable issue
on whether the race-based harassment was objectively severe
or pervasive. See Amirmokri v. Baltimore Gas & Elec. Co., 60
F.3d 1126, 1131 (4th Cir. 1995) (finding the alleged harass-
ment was sufficiently severe or pervasive because an Iranian
plaintiff was called "names like ‘the local terrorist,’ a ‘camel
jockey’ and ‘the Emir of Waldorf’" on an almost daily basis).
D.
Finally, the EEOC must establish a "basis for imposing lia-
bility on" Central for the gender- or race-based harassment.
EEOC v. CENTRAL WHOLESALERS, INC. 17
Gilliam, 474 F.3d at 142. It can do this by showing that Cen-
tral knew about the harassment but did not "respond with
remedial action ‘reasonably calculated to end the harass-
ment.’" Sunbelt, 521 F.3d at 319 (quoting Amirmokri, 60 F.3d
at 1131-32).
1.
In this case, we find that the evidence, viewed in the light
most favorable to the EEOC, shows that Central knew about
both types of harassment. As discussed above, Medley com-
plained to her supervisor (Wright) and to Central’s President
(Denicoff) about her co-workers’ harassment on a number of
occasions. For example, Medley complained to Wright and
Denicoff about her co-workers’ use of the word n****r, and
she also complained to them about Mike watching pornogra-
phy at his desk, Mike’s pornographic screensaver, the Play-
boy items in Mike’s cubicle, and the November 10 incident
with DaBay.
2.
We must next determine whether a reasonable jury could
find that Central did not respond with corrective action rea-
sonably calculated to end the harassment. Sunbelt, 521 F.3d
at 320. This is not a case where the employer took no action
in response to an employee’s complaints. Indeed, Central took
a number of steps in an apparent effort to address Medley’s
complaints. For example, Denicoff walked around the depart-
ment where Medley worked to determine whether any of the
pornographic or offensive materials she described were pres-
ent. He also held a number of meetings with Medley, and with
her supervisor, and with the co-workers Medley complained
about in an effort to address the situation. Central also had a
policy in place against discrimination, harassment, and retali-
ation.
Despite these efforts, Central’s response was not without its
apparent shortcomings. The evidence shows that Medley
18 EEOC v. CENTRAL WHOLESALERS, INC.
made a number of complaints that Central either failed to
respond to in a timely manner or failed to respond to at all —
even though its anti-harassment policy required the company
to promptly investigate all such complaints and to take appro-
priate action. For example, Mike’s pornographic screensaver
was not removed until a week and a half after Medley first
complained about it, and Wright did not take any action in
response to Medley’s initial complaints about her co-workers’
use of the word n****r. Denicoff also took no action in
response to Medley’s complaints about her co-workers’ regu-
lar use of the word n****r other than mentioning in general
that racial slurs would not be tolerated when he held a meet-
ing with Inside Sales to address profanity. Central also took
no action in response to Medley’s report about the blue-
colored mop-head doll which Tony had hanging in his office
by a noose tied around its neck.
Moreover, a number of Central’s remedial efforts proved
completely ineffective. As noted, Denicoff walked around
Inside Sales on at least two occasions in an effort to locate the
pornographic material Medley was complaining about, but he
never found the Playboy calendar which was on Mike’s desk.
Similarly, while Central removed Mike’s Internet access in
response to Medley’s complaint that he was watching pornog-
raphy in the cubicle right next to hers, Mike continued to view
pornography at work, either over the Internet or otherwise. In
other words, there was a clear pattern in this case of com-
plaints by Medley and then responses by Central that consis-
tently failed to end the harassment.
The nature of the harassment experienced by Medley also
became more severe in some respects after she started com-
plaining. For example, after Medley complained directly to
her co-workers about their language, as Central’s anti-
harassment policy suggested, her co-workers increased their
use of racial jokes and ethnic slurs. Moreover, the November
10 incident with DaBay occurred after Medley started com-
plaining to Central managers and after she had a number of
EEOC v. CENTRAL WHOLESALERS, INC. 19
meetings with management about the harassment she was
experiencing.
Viewing this evidence in the light most favorable to the
EEOC, we find that a rational juror could find that Central
"failed to take additional action . . . reasonably calculated to
end the harassment." Sunbelt, 521 F.3d at 320. A jury could
find that, in addition to responding in a timely manner to all
of Medley’s complaints and taking increasingly progressive
measures to address the harassment when its responses proved
ineffective, Central could have, as the EEOC suggests,
demoted the four primary offenders, suspended them from
work, reduced their pay, or issued them written reprimands,
yet Central took none of these actions in response to Medley’s
complaints.4 We hold, therefore, that Central’s "response was
not sufficient on these facts to warrant summary judgment."
Id.
We want to emphasize, however, that we are not attempting
to create an exhaustive list of remedial measures an employer
could employ, nor do we intend our opinion to be read as sug-
gesting that Central could have prevailed on summary judg-
ment if it employed a particular combination of the remedial
steps we identified above. Instead, we list these measures to
illustrate the types of remedial actions that Central did not
take and that a rational jury could find would have been rea-
sonably calculated to end the harassment. In short, when an
employer has notice of the harassment, it must take steps rea-
sonably calculated to end the harassment. Id.
4
Central clearly had the authority to terminate the employees who made
the types of remarks reported by Medley. In fact, more than a year after
Medley stopped working at Central, the company terminated Tony at least
in part because he had been directing racial slurs toward a different female
employee.
20 EEOC v. CENTRAL WHOLESALERS, INC.
III
We now address the district court’s order denying Central’s
motion for attorneys’ fees, which we review for an abuse of
discretion. See Johnson v. City of Aiken, 278 F.3d 333, 336
(4th Cir. 2002). Central contends that the district court erred
in refusing to award it attorneys’ fees under 42 U.S.C.
§ 2000e-5(k), which authorizes the court to award fees to a
"prevailing party." See 42 U.S.C. § 2000e-5(k); see also
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978). Because we are reversing the district court’s grant of
summary judgment to Central, Central is not a "prevailing
party" within the meaning of § 2000e-5(k), and we therefore
affirm the district court’s judgment on this basis. See Walker
v. United Parcel Service, Inc., 240 F.3d 1268, 1279 (10th Cir.
2001).
IV
Based on the foregoing, we reverse the district court’s grant
of summary judgment to Central, affirm its denial of Central’s
motion for attorneys’ fees, and remand for further proceed-
ings consistent with this opinion.
REVERSED IN PART,
AFFIRMED IN PART,
AND REMANDED