this is the first time that the fourth circuit has sat at the university of baltimore law school and we're very happy to be here and we appreciate counsel coming here because i know that sometimes you may feel uncomfortable law school and it's very helpful to the students to see what actually happens this is a real own case not move courts so yes keep c p so i'm going to listen carefully counsel we're ready in our first case number fourteen hostile work environment question the decision in this case was made by the district court on april sixteenth two thousand and fourteen and the date is very significant because it was thirteen days before the fourth circuit decided the case of freeman and that case the court decided whether or not and employer can be liable for hostile work environment when a customer harassed an employee in the fourth circuit gave direction as to what the court should consider i think that the consideration of courts made in in the framing case are going to be very relevant to my discussion this morning miss prior work for united for several decades as a flight attendant airport racial hostility towards african americans began to escalate and it started with allegations that the african american flight attendants working out of dulles and working in kuwait were prostitutes and the allegations that these impact these flight attendants by their coworkers were moonlighting as prostitutes that the district manager misspend us it's undisputed became aware of these incidents the at the base manager mary kay panelist became aware of these incidents and it's undisputed this escalated to a posting being put in the flight attendant break room for an apartment on two occasions there was a posting put in the break room  at eleven eighty three eleven eighty four i thought that your case rested primarily if not exclusively on the items that were found in her lock and no your honor it's going to when we look at what events which trigger the employer to take action if there is a what should the employer then if you want to talk about these earlier incidents in which she did not complain as i understand correct so how is the employer to take action in response to her improper environment if she never complains i don't i think supreme court was pretty clear on that i don't think supreme court law requires a complaint the issue was whether or not the employer had notice and here it is clear the employer had noticed regardless of whether or not employers testimony was if they took them down they called a number they tried to trace it they couldn't find anything there were t fairly close together incidents and they're gone and that's why i thought that what you were doing that was background that is interesting that you're talking about these very much more serious notes that were found in her locker is that not right that is correct  honor but i think there's a nuance that we have to focus on here i see and that is whether or not the inaction of the employer when it came to the the prostitution allegations and the offensive posting in the breakroom whether or not those in actions involved it the anonymous harassers it took any indication this record that they are from the same source no this is this is clearly all of these incidents involve anonymous harassment you're out of the bare minimum with to be followed their own policies and harassment no no no no but there's no law that you have to follow your policy well one of the invasion laws that the policy gives you in certain instances some sort of affirmative defense but there is no law that says you have to follow a policy that we would be defeating the purpose of having employers have policy is if we said that every time that they didn't file a letter lender their own policy that they violated the law so that can't be the bare minimum harassment that was the employee service center but we on summary judgment are supposed to test with the employer's response was reasonable and if you're not even coming you know what your position is so we should find that no it's a for it's not for the panel or for any judge to decide we're here to decide whether or not we've presented facts that would allow a jury to make that determination and what we have here is the harassment continued and it got more severe start it escalates and not only does it go to the plaintiff where she gets a nigger hunting license in her mailbox with a picture of a female hanging from a tree she complains about that in january of two thousand and eleven october of two thousand eleven another neighbor hunting license place not only in the plaintiff's mailbox but twenty of her other coworkers mailbox so that the steps up to the second about that second incident shores my understanding from your  produced genuine issues of material fact that would allow the fact finder to and facts to say the either the employer's response was reasonable or not and when we look at the prostitution allegations the  policies at united airlines stated that if a supervisor a local supervisor becomes aware of harassing conduct there is a procedure to follow that is to escalate it to the employee service center so they can do an investigation undisputed that did not happen with the prostitution allegation when yes roger question yes as to the rules a rumor is a rumor but how are these rumors conveyed into it your honor they were conveyed to the flight attendants at  there's over twenty six hundred feet of tenants assigned to dulles they don't all know it each other's names and the african american fight attendants informed not only the base manager but the director about these rumors your honor to to have a woman  in the workforce traveling and working and be a keep it to be accused of being a prostitute at a bare minimum if these type of allegations are being made into simulated amongst a workforce an investigation could have been done to figure out who was making these rumors and to stop the issue we have here is whether or not the lack of action in bolded the anonymous harassers to feel that they can get away with not only making making up rumors that started with rumors but it escalates to neighbors may not apply for apartments and then it escalates to death threats maybe that another way is because i hear your position but it's not very helpful to me deciding the case if you could tell me what you think your strongest president instruction and said although that although there may be difficulties with anonymous acts of harassment those difficulties at most present factual questions about the reasonableness of the employer's response i i took time in your reply if you meet a certain threshold that is correct and so that rush for example in the third in the second incident you can see that the matter as a matter of law you're not pursuing it that the employer acted reasonably but there are exactly why you should have put up the camera after the first incident is not your point yes your honor if the employer had waited until the third incident before putting up the camera your case would be better but it would still rest on the same legal foundation would it not yes rather well players explanation for not putting up the cameras so that that would be the issue is that your submission that's the only thing that the employer could have done that would have been a reasonable response and investigate the matter investigate you're on it and that's it that's where you have the camera was the only thing the one for you could i think speaking to the coworker speaking to the workforce speaking to those who had access to the secure area speak at a bare minimum that would have been enough i don't mean i think months your honor and that and again if we have a situation where a lot of the case that are cited by both parties in this case deal with the immediacy of their response to them to read the remedial action and the majority of these cases whether we have a noose in the workplace or allegations of harassment we have an immediate contact with the workforce in general we do not have that at the cases bar we just don't have that do we have any doubt in this case that the perpetrator of the horrible death threats was a coal employee there's no doubt there's no dispute that anybody else had access to that secure area other than someone working for united no one else had access united's authority no one else correct but not an employee but it somebody in other words nobody gets in there without committing a criminal act in the absence of you knowing it's authority to begin their work and i think your honor in that it becomes very important to look at the analysis of freeman where we had a customer someone who was not even an employee of the defendant employer where the court imputed liability on the employer because they had knowledge of his conduct and we would look at the freeman case his actions did not arise to the level case we do have acts that arise to the level of death threats and i think that's where we take this matter into a different went round and i'll reserve the rest of my  morning meeting may please the court my name's jodi vocus name appearing on behalf of united airlines at the outset i'd like to say that the discovery record in this case confirms that united at all times was committed to maintaining a workplace free of harassment and discrimination in each incident that's been raised by the plaintiff in the in the court below and in the record united did in fact investigate unfortunately this was anonymous harassment they were not on able to identify the perpetrators but in each incident united  racial harassment anonymous racial rassmann in work do and want to correct that the only reasonable inference from the record is that the death threats were placed where they were found by someone either employed by united or who have access to that area with units of the judge i think the record is unclear on that but certainly united has not taken the position that that it was it was bungled what the lack of clarity in there i don't know that the discovery record was developed as to exactly who had access it's my understanding judge that this is a secure area obviously it said stella sera port and that you have to infer a criminal trespass at a minimum to draw a reasonable inference that the person who placed these death threats was not a person who had access through the authority of united yes i think that's why he's ok and i will say just to clarify some points for the record your honour's i know you've reviewed the briefs and the discovery eckard but i'd like to highlight a few points that at most taking place allegations is true for purposes of summary judgment as we must there were four of alleged incidents and if you conclude prostitution allegations roughly five over nine years these were scattered isolated incidents of anonymous harassment with regard to the prostitution rumors the first incident that ms pryor testified about occurred back in i believe one nine hundred ninety s she said and she did say it was in san francisco it was a different base she spoke with a supervisor reported it to dulles management were cardless the fact the record does reflect that dulles management did get wind of these rumors and no one was identified as the perpetrator spreading the rooms nevertheless united management attempted to identify whether or not there was any truth to truthfulness to the rumors whether any was involved there were calls made to the quake base there was no one knew anything about it they called the hotel where one might expect there might be some activity of that kind if it were really true the hotel d on notice that something's going on at dulles something's going on and in fact as you say if something was going on in one nine hundred ninety regarding rumors and so forth about black women in the workplace and the rumors are still swirling about eight or nine years later i think the plaintiff submission is a reasonable employer knows that something is going on here well just tell us what that limited nine that somehow there was but again i don't see how they can reasonably be seen as connected to the tags that happened later even they're not even the same type of allegation or type same type of rescue but regardless the bottom line is united did take action and  it did end and then when the bulletin board postings kurt there were two identical ones that showed up on in the employee lounge denise robinson palmer who is also african american is the one that found that she took them down she called them the apartment complex of that was listed in the posting and and asked who post posted it tried to identify who the perpetrator was the woman on the other end of the phone identified that she was also african american she was offended she never do such a thing there was no evidence as to who could have taken well i think that this is the most difficult part of your case and i think of they haven't said it exactly this way i think that their best argument is that you response was not appropriately well judge the record reflects that the day it happened the supervisor contacted base management happened on a saturday i believe evening some at some point on a saturday based management was contacted immediately and notified the incident the supervisor immediately asked miss pryor do you know who could have done this she had been she had no suspects and how did he treat he said it would you thought it was a joke well i think in context it is enough for this record i think he said he didn't think it was funny and i believe i may be confusing now to some definition testimony but for purposes of summary judgment yes i think that the record reflects that mr pryor said he said something to the effect of that it was a joke exactly that's what the record ok so so that but the first thing in your policy it says this first point out that and even this prior said she expected corporate security to deal with this there has been much made about the fact that whether united called the managers called the e s c versus calling corporate security this is a big company the reality is a lot of employers aren't big enough to have a separate corporate security department but united does for obviously reasons as soon as this happened she's meat based management contacted its corporate security because of the nature of the document which did include threats i submit that there's nothing on reasonable about united taking that path and ellie's honor of human resources testify that there is one path under united policies you can take certainly there was a racial component but there was also this threatening component it's not unreasonable that t contact corporate security and i would say in all fairness because of the safety issues it's more than appropriate that they did that that was calculated first of all to try to figure out what they could do to identify suspect and unfortunately there was little they could find out about  could be nine and have asked for an affidavit not a lie detector to get that could united have asked for an affidavit from each person with access to that secure space attesting to to question did you the these offensive statements and second do you have any information as to who might have done to tell when that document was left as it's counsel correctly pointed out this is a twenty six hundred flight attendant workforce people come in and out all the time there was no way to tell when it was left the united way no when it was or when it was found they knew when it was found but they didn't know when it was actually left it could have been left at any time she was she coming from she was going out she was going out to moscow and i believe the record reflects that the last time she had been near port had been at least a week earlier and it's unclear that from from the record if she checked her mailbox at that time regardless the fact of the matter is the time that at that point in time united was pretty pragmatic i think about looking at ok we don't know who did it there's no way to tell us who did it when they did it and it's difficult to imagine that somebody would have meant they have done it through an affidavit but it but if i may the reality is  routinely rounded up certain demographics for the purpose of requesting voluntary d n a submissions and what they did was they said ok these three people refused to give us voluntary d n a samples we're going to focus our investigation on them you know you can criticize that technique but it has other applications but if i may judge i will say that under the circumstances first of all united did act i think pragmatically in focusing on monitoring the did all these things they had all these employees talk to each other and then as i read the record by the end of january things  case and she reports at some point the case is closed and she reports to the police that ignites a new wave of stuff and finally in march the twenty fifth march they post the note well judge if i may i think it's a little different than what what i think i might have the time a little wrong but you would agree with me that there was this initial push talking to each other and united thought it could do nothing they closed the case well i don't mind it went to the police actually i don't think first of all that united thought they could do nothing they needed to do nothing they were monitoring their mailboxes there were no further incidents and they maintained contact am by the discrimination law but perfectly understand right and so when i understood as i understand it that cause was prior not to call the police initially but to call b s see another avenue for her to to seek relief she contacted them on february sixteenth and february seventeenth ellie's on her was involved and february eighteenth then at least on or attempted to do further investigation by contacting mr prior she she said she didn't have time to talk it took at least honor of a whole two weeks to be able to speak and we know that's true what i'm what i'm trying to get at is the incident took place in january and i did didn't post as time which is what the plaintiffs in deposition she thought would be appropriate the the must read e mail that was sent out they were monitoring the mailbox the supervisor supervisors were notified nothing else was happening and never did it for another nine months during that time when it was escalated human resources further investigation was conducted further interviews were conducted and at the same time after that ms pryor also involved the police and there was a lot of activity around that in this zauner was attempting to complete her investigation and i think it's reasonable that they did further investigation employees the police would never have been involved i think what more would have happened well judge if i may say night it wasn't escalating it that way if i may submit there's no evidence that would have made a difference or that would be material it never happened again i mean it doesn't make a difference when the united continued did or not or whether she had to get there in big efficient going again because nothing happened anyway there's no evidence that they stopped monitoring the mailboxes in that was affected there's no evidence that ever stopped and so i submit judge that this wasn't a situation where united thought it didn't have to do anything certainly women's prior contact human resources they took took addiction this will action but it's not as if they ignored the situation and  and i think judge in some of your decisions that you know you've correctly pointed out in fourth circuit doesn't require that a particular remedial response and it need not be the most certainly effective this was in your  they wouldn't repeat that that would only spread the hostile work environment what united did was appropriately say there was offensive material put in the mailbox and didn't even mention it was racial racially motivated well if it was racial or sexual regardless it was it would have been inappropriate and i don't know that that matters but because if they're not it would you have a workforce and that's what i think the opponents are talking about the whole instance of the rumors spreading over a period of almost a decade you have that environment going on you have the apartment type thing it makes a difference that this was a racially motivated done in your environment not it obviously has some problems going on up and you said you're not responsible for them but you have rumors persisting that long think what the that the company was concerned about was making sure that people understood that were people on notice that there was something inappropriate going into mailboxes i don't believe that they needed to be more specific because what the point was this any  inappropriate material is going in the mailboxes should be monitored and that everybody should should keep an eye out for it and the reality is on the prosecution members this was a constant rumors there are two incidents that she  she said there's no evidence in the record you just i'm just told the court that the command in dulles found out about this in two thousand and nine but there's no if i may and perhaps i misunderstood but i don't think there's any record that there's response to their direct response or if it was based management hearing about it their record reflects that somehow based management heard about it it's unclear if it was from those two individuals or if it was someone else but they did take efforts to investigate and you know as i said there was there was little to go on they were unable to verify no one was identified as a person that you the individual that reported to denise robinson almer did not identify the people that were making the rumors so there was no way to which you help me with this this is the problem i have with the district court's ruling and it's right in the record that the basis of the ruling was that first of all this did constitute the first three problems of hostile work environment but the last pro it the reason it was not found in the sole reason was that is no evidence that they investigated differently done something different if they were to disclose who the culprit was do you believe that that is the standard if i may i think she cited the correct standard and that in the end that certainly is one factor that is considered in determining whether to puta liability is whether or not the they harassment ultimately says i'm sorry i see my time is up your time is up i we keep going back to the importance of reporting this up to the employee service center the facts of this case make the employees service and are very important and that's because there is no local human resources in dallas they are all in chicago and so when a supervisor becomes aware of harassment it's an incumbent upon it's incumbent upon that supervisor to communicate with chicago so chicago can investigate the harassment this is move tell us why this was  designated ali alizadeh who is in charge of human resources in chicago and designer stated that up you would report an issue to corporate security if it did not involve harassment and that is that j fifteen forty two i think that we can all agree that they didn't letter but that's not your degree i don't think that i think he meant legally why would that wasn't because if you would agree if no matter i believe in fact and in speaking to the witnesses letting these the staff there whether it's spite of tens of whoever had access to this area that there is zero tolerance for harassment letting the staff know that we are aware of racial issues going on a and we have a zero tolerance policy and we will take action if it continues that does not happen here and what we have is we have a local management team who doesn't want to escalate harassment so when they see the word nigger written on the wall they rip it up and throw it away and don't tell them back when when they when an employee says my my life has been threatened at an airport and the environment we live in today where there's death threats at an airport we cannot minimize this because it involves african americans as opposed to another group because we all know that in the environment we live in if there were certain groups in this country that made these type of death threats at an airport everyone pee would be coming down outside agencies as well as corporate security as well as the employee service and what we have here is we have a issue with race or accident has pointed out by your honor we have a local management force that doesn't want to escalate they want to suffer that's what kind of hangs me up that you know i think that forklift in all those cases seems to me correctly framed a legal question about whether the employers response is reasonably calculated to bring that into the rest but not all harassment is the  it seems to me racial death threat human being of a racial classification and i don't know how it gets any more serious than that so far as i'm concerned you call out to the calvary when that kind of thing happens and when you don't call up the calvary twenty other african americans reasonable means anything it usually means except at the polar extremes that it's a factual question and i'm having difficulty in this case seeing how  if i happen to think my saying i do but if i happen to think that you're not in its response was a reasonably calculated here the somehow i'm an unreasonable judge and that's what is no jury questionnaire now so there are some responses that are reasonable yes even no reason reason nobleness and intent and everything are usually jury questions but sometimes they are not that is correct i would agree with that statement but again what we have to look at are the facts there's specs that are specific to this particular case some instances you have local human resources you have a complaint procedure that is there locally that can handle these matters but because dulles did not have a local human resources it was very important that the supervisors the the director of dulles as well as the base manager communicate these issues up to the chain of command when mrs honor was investigating these issues she said i was not aware of the prostitution allegations no one told me about that the posting in the break room referred african americans as niggers and if i would have known that i would have made a different decision about there was no policy violation so we have limited information from the individual task to investigate the individual who found that the death threats did not violate any united  complete failure understanding if we have a human resources official look at a death threat with an african american hanging from a tree and say that doesn't violate any of our policies here tonight because it's anonymous let me ask you this what if we have exactly posting of in the mailbox put united on notice that action should have been collected but how could how could any court hold it a jury question whether the response of been effective or not if it stopped the discrimination that stopped her i'm sorry but i thought you asked me if after the posting was put in the mailbox after the posting is put in the mailbox and they didn't he know he does all these meetings it goes to talk to the police and she talks to the police and they october we would still believe there is a cause of action for a hostile work environment because we believe actions could have been taken before the the death threats were put in the mailbox which could have been which could have stopped it and that is just